Henry Gifford, a self-styled energy efficiency expert, has teamed up with Consumer Class Action lawyer, Norah Hart, to take on the U.S. Green Building Council (USGBC). In a lawsuit filed on October 10, 2010, Mr. Gifford, on behalf of an intended class of every person ever involved in L.E.E.D Green Building Certification® (“LEED”), made sweeping allegations that LEED was a scam perpetrated by the USGBC to monopolize green construction certification through use of deceptive claims about the efficacy of the LEED process. In essence, Gifford claims that the USGBC is trying to enrich itself by cornering the market for certification of “Green Buildings.” Critics respond noting Gifford’s lack of scientific proof in support of his claims.
With so much industry interest in green construction, this case has gained much attention after it was filed. It filled the green building blogosphere with comments and analysis—including a blog post by this author that garnered some attention from around the country.
Initially filed as a class action, Gifford, without explanation, changed it to a direct action adding an architect, an engineer and a consultant as plaintiffs. Presumably, by adding these professionals, Gifford can seek discovery that might later enable him seek class action certification for all architects, engineers and consultants. Why the change?
Class action lawsuits go through a phase of early limited discovery designed to let the plaintiff attempt to prove that his claims should be certified as a class action. Of course this initial phase takes time and money. It is likely that counsel for the USGBC approached Gifford with the idea of cutting to the chase and foregoing the initial class action analysis. Abandoning the class action claims will permit Gifford to engage in broader discovery at the outset and save the time and expense involved in certifying the case as suitable for a class action. For a plaintiff’s counsel unsure about the viability of her claims, this cost-saving maneuver would have appeal. As well, for a defendant confident of its position, this procedural change might be an effort to open wide its operations so that it can more quickly clear its name.
Here, it appears that both Gifford and the USGBC are going to get straight to the issue of whether LEED is a scam. If Gifford finds what he is looking for from the USGBC, then he may amend his complaint again and re-style it as a class action. If not, the case will likely go away.
For professionals who had obtained their LEED certification and worried that Gifford’s claims were accurate, the change in status of this suit should provide a sigh of relief, as it appears that the USGBC is sufficiently confident that it is willing to open its records for inspection in support of its claims. For those hoping that LEED certification and the USGBC might be headed for extinction, now might be the time to cross your fingers.« Back to news