Back in October of 2010, Henry Gifford filed a class action lawsuit against the US Green Building Counsel (USGBC), which is the non-profit responsible for administering LEED certification for buildings and homes. Mr. Gifford alleged several issues including that the USGBC fraudulently represented the performance of LEED buildings, that it participated in false advertising, and that it operated to monopolize green building standards. Somewhere buried in the complaint, he also let on that he was really mad at the USGBC because he lost clients and business opportunities because he was not LEED accredited. When I first heard about the lawsuit, my reaction was “oh brother, really?!” Doesn’t Mr. Gifford know how the USGBC revolutionized green building in the U.S.? Show a little respect! Can you really accuse the USGBC of fraud? Okay, you can accuse them, but can you prove it?

Then, the U.S. Supreme Court ruled on the Wal-Mart class action case, and I thought that was the end for Mr. Gifford. I was wrong. Heeeee’s baaaaaack.

He’s filed a new complaint and has stripped down his allegations by focusing on misrepresentation and fraud, and he’s found some new friends (read: added some plaintiffs). The problem remains, however, that Mr. Gifford and friends will still have a hard time getting past one very basic procedural issue. Does this group of plaintiffs have standing to sue? The USGBC filed a motion to dismiss and wrote, “Gifford, who alleges he is an energy consultant, has been a longtime gadfly, preoccupied with critiquing USGBC and LEED through the media, internet forums, and the like. Gifford has every right to voice his criticisms of USGBC and LEED in the public forums of his choosing. But unlike the internet and the public square, access to the federal courts is limited to those with standing to sue.”

In a nutshell (reusable, of course, as plant bedding – sustainability joke), if you’re going to sue someone for fraud, you have to prove that you reasonably relied on their intentionally made false statements, and reliance on the statements caused you injury, personally.

We’re going to keep our eyes on this case as it develops, but in the meantime, if you are worried about how this lawsuit may affect your current project or next project, we’d be happy to take a look at your contracts and see if any additional disclaimers or verbiage can minimize risk exposure.