NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or of the USGBC Central Ohio Chapter.
Ever heard the old adage “Hell hath no fury like a non-LEED AP energy-efficiency professional scorned”? No? Well, check out Gifford v. USGBC.
Henry Gifford (the guy who filed the lawsuit) has fashioned a bit of a cottage industry as a self-anointed critic of the USGBC and LEED. No disinterested person would ever argue that LEED is beyond reproach … to the contrary, Rob Watson, one of the founders of LEED and a Defendant in the lawsuit, unabashedly explains that it is not … but when and why did Gifford decide to unleash the hounds of litigation? Possibly when he began losing work to competition – the USGBC – or possibly when he realized that filing suit could bring him some notoriety.
There are many problems with Gifford’s complaint – the first being Gifford himself. Notwithstanding that Gifford is not a LEED AP, and neither he nor his company currently owns or is developing any LEED properties, he positions himself as the champion of “all persons who paid for LEED certification for property they own.” Pay no attention to the fact that, to achieve certification in a class action lawsuit, the representative of the class (in this case Gifford and his Company), must himself be a member of the class he seeks to represent. Apparently Gifford isn’t one to let the law or the facts get in the way of a perfectly good argument.
But what does he stand to gain by filing a lawsuit for a harm he didn’t suffer? Perhaps becoming the darling of the anti-LEED crowd is its own reward. Gifford’s complaint takes a gratuitous swipe at LEED AP’s by alleging that, “When LEED AP’s design and build buildings instead of skilled professionals, such as the Plaintiffs, with years of experience making safe, comfortable, and energy-efficient environments, the marketplace, consumers, and the environment, often suffer.” Considering that Gifford’s web site devotes more of its home page to a screen capture of how much attention he got from an article slamming LEED than it devotes to quantifying his sustainable design experience, it takes little imagination to understand why he has upped the ante from LEED critic to litigant.
It’s interesting to note that Gifford’s lawsuit makes no mention of relatively lesser-known sustainable development standards such as Green Globes, the Living Building Challenge or Passivhaus. Not as much bang for your publicity buck to go after less popular programs (and, coincidentally or not, the fact that other competitive green building standards exist in the marketplace isn’t particularly helpful to Gifford’s antitrust claims). So, for now, we are left to ponder Gifford’s motives.
In our next few posts we’ll discuss more allegations in the Complaint and get into the meat of the Deceptive Trade Practices and False Advertising causes of action.