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The second case worthy of mention focuses on the use of innovative material technologies in the achievement of the green/sustainable project objective. The Chesapeake Bay Foundation, Inc. v. Weyerhaeuser Co.11 case focused on one of the very first LEED Platinum-rated buildings in the country. The allegations raised in the Chesapeake case stemmed from certain "Parallams" beams made from wood waste and environmentally neutral coatings that were used in sealing the Parallams. When these beams began to prematurely deteriorate and permitted water infiltration and damage to the building's structure due to exposure from the elements, claims arose regarding the products used and their suitability for construction. Notable among the various counts raised was a claim for negligent misrepresentation against Weyerhaeuser, the manufacturer of the Parallams. Included in the allegations were the following: that "Weyerhaeuser supplied information regarding its PolyClear 2000 treated Parallams with the intention that its products would be used in the construction of the Project"; that "Weyerhaeuser had a duty to transmit accurate information regarding the materials to be used in construction of the Project. The statements that PolyClear 2000 . . . was an adequate substitute for preservatives specified in the Contract Documents, or was otherwise adequate for use in exterior exposed applications were untrue and constituted material misrepresentations or omissions"; that "Weyerhaeuser, with its superior knowledge, was negligent in the assertion of these untrue statements"; that "Weyerhaeuser also knew that PolyClear 2000 was not intended for exterior weather-exposed applications"; and that the "statements or omissions made by Weyerhaeuser were made with the intention of having Plaintiffs act and rely upon them and Plaintiffs did in fact rely on Weyerhaeuser's statements or omissions." All of these and similar contentions were raised as the basis for liability on the part of Weyerhaeuser. Ultimately, however, a much more traditionally grounded statute of limitations defense was utilized to dismiss all claims against Weyerhaeuser.As mentioned above, one more case worthy of discussion regarding the misrepresentation "trend" of claims involved the USGBC itself. On October 8, 2010, a case was initiated in the US District Court for the Southern District of New York, at Case No. 10-CIV-7747. The plaintiff was Henry Gifford, "a consultant who provides advice on how to reduce energy costs," initially as a part of a class action against the USGBC among others. Shortly after filing the class action, which included allegations of misrepresentation, false advertising, monopolization, and conspiracy, Gifford opted to join with him a number of other named plaintiffs asserting claims exclusively against the USGBC for false advertising under the Lanham Act, section 43(a);24 the New York Consumer Protection Act at sections 349 and 350; and common law claims for false advertising and unfair competition and business practices. What was unique about the Gifford case was that no specific project was at issue. Rather, the focal point of Mr. Gifford's misrepresentation and false advertising claims was the USGBC (along with its LEED rating system). Mr. Gifford challenged the USGBC contending that the LEED rating system had been promoted to a point where it was being suggested that buildings designed and constructed to comply with LEED were superior to those not following LEED in terms of being healthy for its inhabitants and users, much more environmentally sensitive, and, most importantly, much more energy efficient. Mr. Gifford asserted that these claims being made on behalf of LEED were false and actionable under various federal and state statutes focused on unfair competition, misleading advertisement, and even wire fraud. In much more direct terms, Henry Gifford asserted that the USGBC's LEED Rating System amounted to false advertising, essentially misrepresenting the quality and character of the buildings delivered by following LEED. Interestingly enough, what came from the USGBC's response by virtue of its Motion to Dismiss Mr. Gifford's Amended Complaint was that LEED was never intended to be what Mr. Gifford asserted, but rather was "purely voluntary" in nature. Also of significance was the USGBC's statement that LEED was and is "aimed in improving environmental performance and does not assess actual . . . performance" in buildings reviewed for certification. Based on the above, the USGBC then proceeded to argue that LEED does not verify building performance, just that these buildings are being "designed and built using strategies aimed in improving" buildings.
Still, due to the court's determination that the plaintiffs could not establish themselves as competitors of the USGBC, they would have to make a "more substantial showing of injury and causation to satisfy the reasonable basis prong of the standing requirement" for a Lanham Act claim. The court concluded, however, that building owners were free to choose from many consultants - even those who are not accredited by LEED - to design a LEED -certified project. Furthermore, the court held these plaintiffs were unable to prove any owner's decision had been influenced by the alleged false advertising by the USGBC. By concluding "Plaintiffs plainly do not compete with the USGBC in the certification of 'green' buildings or the accreditation of professionals" and in the process narrowly defining what the USGBC does and does not do, the court placed a si/able obstacle in front these and any future plaintiffs seeking to confront the USGBC or LEED. Still, the seed that has been planted with the Gifford decision is one of misrepresentation being the potential source of liability for the USGBC or any entity that chooses to represent the character and quality of a green sustainable building as superior to those involving traditional construction models. Perhaps the solution to this developing trend lies with focusing on underlying performance criteria in a much more traditional sense and providing appropriate qualifications that the ultimate performance of these buildings will be confined to utilizing the resulting building in the manner specified by the designers, the constructors, and the suppliers of the building's design, construction, and material components, respectively and collectively.
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