Friday, January 14, 2011


Back in October 2010, Henry Gifford and a few of his apparently like-minded friends launched a class-action assault on the U.S. Green Building Council’s “LEED” certification standard. Sustainabloggers from all over (including this one) quickly weighed in with their opinions on Gifford, the USGBC, the merits of the suit, and LEED.

So what has happened since the filing of the suit? Not much! The suit has fallen into the classic litigation mode of “hurry up and wait.” While the USGBC presumably denies Gifford’s allegations, they have yet to file an answer to the complaint.

And it will be at least three months before they do. This is because on January 4, 2011, the parties filed an interesting “stipulation to extend time” with the U.S. District Court for the Southern District of New York. The stipulation is short and sweet, and it basically says (1) that the Gifford plaintiffs have until February 7, 2011, to serve and file a First Amended Complaint, and (2) that the defendants have until April 6, 2011, to respond.

This is interesting because it is unusual for a plaintiff to amend their complaint before the defendant either answers or moves to dismiss, and without the benefit of any discovery. At the time he filed the Complaint, Gifford presumably felt that it stated claims upon which relief could be granted, made factual contentions with evidentiary support, and presented legal contentions warranted by existing law or a good faith argument for extending the law, and therefore passed muster. One is left to wonder what has changed. I can speculate – and this is nothing more than rank speculation of the first order – that Gifford’s attorneys received a strong signal that the complaint was fatally flawed and worked out a deal to buy some time to try to fix the problems. This would not be unusual, and, indeed, would be a sign of good lawyering.

And, at least to this sustainablawger, the complaint does have some serious deficiencies. For example, the complaint alleges antitrust allegations but makes no allegation as to the relevant product or geographic markets. This is a failure that, at least down here in the sleepy south, would warrant dismissal of that claim.

In any event, we will know in a little less of a month, and then we will get to hurry up and wait and see what the USGBC does. I fully expect them to move to dismiss the complaint. Which means we will get to hurry and wait some more and maybe, just maybe, by the end of summer the world at large will have an idea of where the case is headed.

So, hurry up and wait…but stay tuned!

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