Sunday, November 28, 2010

LEEDigation and the Arkansas Deceptive Trade Practices Act

Back in October, sustainblawgers were handed a gift in the form of a class action lawsuit against the U.S. Green Building Council, Henry Gifford, et al. v. U.S. Green Building Council et. al. The suit, filed in federal court in the Southern District of New York, broadly alleges that the USGBC’s “LEED” certification is a deceptive sham that does not result in greener buildings or greater energy efficiency, all the while steering consumers away from alternative certifications that actually work.

In this vein, one of the claims in Gifford is an allegation that the LEED program amounts to a deceptive trade practice under New York law. The New York law at issue provides simply that, “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in the state of New York are hereby declared unlawful.”

There is an equivalent to this statute in Arkansas, the Arkansas Deceptive Trade Practices Act. The Arkansas Deceptive Trade Practices Act (or, for those of you who enjoy alphabet soup, the “ADTPA”), is Arkansas’s underused, all-purpose consumer protection statute. It makes a wide-range of behavior illegal, including knowingly making false representations as to the characteristics, uses, benefits, sponsorship, approval, or certification of goods or services, and engaging in any unconscionable, false, or deceptive act or practice in business, commerce, or trade.

Only the Arkansas Attorney General can seek an injunction under the Arkansas Deceptive Trade Practices Act, but private citizens actually injured by a deceptive trade practice can sue to recover their actual damages and, in a departure from the general rule in Arkansas, their attorneys’ fees.

While Arkansas has yet to see much, if any, LEEDigation, the conduct alleged in Gifford, if true, amounts to knowingly false representations as to the characteristics and benefits of LEED certification and arguably states a claim under the Arkansas Deceptive Trade Practices Act.

I expect that when LEEDigation hits the Natural State -- and it is coming -- plaintiffs (and their attorneys) will craft an ADTPA cause of action. All involved in the LEED-certification process – indeed, in any “green” certification process – should take notice.

(Department of Legal Citations: The ADTPA is codified at Ark. Code Ann. § 4-88-101 et seq.; a non-exhaustive list of the deceptive and unconscionable trade practices prohibited by the ADTPA can be found at Ark. Code Ann. § 4-88-107.)

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