On August 15, 2011, the U.S. District Court for the Southern District of New York dismissed with prejudice the federal law claims brought against the U.S. Green Building Council by Henry Gifford and others. The court ruled that the plaintiffs did not have standing to sue under federal law. “Plaintiffs plainly do not compete with USGBC in the certification of ‘green’ buildings or the accreditation of professionals….Likewise, plaintiffs do not adequately allege a reasonable commercial interest that is likely to be damaged by USGBC’s alleged false statements.” The court added, “[b]ecause there is no requirement that a builder hire LEED-accredited professionals to attain LEED certification, it is not plausible that each customer who opts for LEED certification is a customer lost to Plaintiffs.”
The court also ruled that Mr. Gifford was not able to show that the alleged false advertising claim by the USGBC had made an impact on the marketplace. “Whatever the merits of Plaintiffs’ claim that the conclusion of the study was false,” any claims to that effect were “too speculative.”
The court, however, said the plaintiffs still could bring false advertising and deceptive trade practices claims under New York state law.
See the attached link to the 8/15/11 Memorandum & Order.
Submitted by Jeffrey S. Wertman of Berger, Singerman
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