Tag Archives: design professional

Greenwashing–an Interview with James d’Entremont (guest post)

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James d’Entremont

Today, a guest interview on the always timely topic of greenwashing. Alex Levin is a writer for Seeger Weiss LLP, a top ranking Plaintiff’s law firm specializing in consumer protection, commercial disputes, and defective product injuries.  Please welcome Alex to the blog, as he shares a greenwashing interview with us. ______________________________________

As the public grows increasingly aware of the environmental costs associated with the modern consumer lifestyle, it also grows increasingly concerned. Such public concern has become a major factor in driving the industrial world to the adoption of an environmentally friendly façade, which has come to be known as greenwashing. While such companies may strive to be seen as addressing environmental concerns, not all of them are actually doing so, and some may be responsible for severe harm to the environment even while claiming to be catering to it. To what degree then can the government or the public regulate such “false advertisement,” or discern between those truly conscientious organizations and those which mislead?

James d’Entremont may be something of an expert on the topic of greenwashing. A Baton Rouge – based attorney for Moore, Thompson & Lee, he is also on the board of directors for the Louisiana chapter of the United States Green Building Council (USGBC), having both spoken and written extensively on the subject of greenwashing. He spoke to us about the surprising degree to which this rapidly growing practice is illegal, and what the public can do to fill the void left by the government’s limited involvement.

What measures has the US government taken and what measures do you think it should take to dissuade greenwashing?

James d’Entremont: The primary federal regulations aimed at preventing greenwashing are set forth in section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a) (1), and enforced by the Federal Trade Commission (FTC).  The FTC’s Guides for the Use of Environmental Marketing Claims, commonly known as “the Green Guides,” sets forth its interpretation of federal trade regulations governing environmental marketing claims.  The Green Guides and accompanying regulations require that parties making environmental marketing claims pertaining to products and product-related services have a reasonable basis for substantiating their claims.  According to the Green Guides, this “will often require competent and reliable scientific evidence” to back up the claim, 16 C.F.R. 260.5.  Moreover, the Green Guides require that an “environmental marketing claim should not be presented in a manner that overstates the environmental attribute or benefit” of the product or service and, further, that marketers “should avoid implications of significant environmental benefits if the benefit is in fact negligible.”  -16 C.F.R. 260.6(C).

The existing FTC regulations, while perhaps not perfect in every case, can provide a solid framework for adjudicating greenwashing claims.  That said, because the Federal Trade Commission Act does not provide a private right of action, private litigants must resort to other federal or state laws to bring a greenwashing claim, citing the Green Guides and relevant regulations as a “measuring stick” to judge the reasonableness or culpability of the defendant’s conduct.  Such actions may be based in state consumer protection laws, breach of contract, fraud, misrepresentation, commercial law or product liability.  Depending on the nature of the claim, various federal statutes may also provide a basis for relief.

What measures has the public taken to discourage greenwashing and what should the layman do in response to this trend?

JD: Social media has played a big role in addressing claims of greenwashing.  There are numerous blogs and websites addressing greenwashing in general and issues with specific products. For example, www.greenwashingindex.com is a website promoted by EnviroMedia Social Marketing and the University of Oregon that is devoted to identifying and indexing greenwashing claims across various industries and products.  In addition to this and other similar sites, there are also websites, blogs and twitter feeds devoted to specific products such as sprayfoamdangers.com which is focused entirely on problems related to spray foam insulation.  There are also an increasing number of private lawsuits addressing greenwashing claims.

As far as how the public should protect itself, the key is to seek clarification as to why the product or service is supposedly “green” and document any representations concerning the purported environmental attributes – as well as any potential environmental hazards – of the product or service.  Often times, the purportedly green product or service has certain environmentally friendly attributes – which are being promoted – as well as certain not-so-environmentally-friendly attributes which are either not promoted or completely undisclosed.

What are some examples of products that might be greenwashed?

JD: For one example, polyurethane spray foam insulation (SPF) is widely touted as green because its superior insulating capabilities can make a home or other building dramatically more energy efficient.  While this is certainly true, what is less well known – and what is generally omitted from marketing claims by SPF insulation manufacturers and installers – is that SPF is comprised of ingredients that, when evaluated individually, seem far from green.  These include isocyanates, amines and various flame retardants.  These chemicals are known irritants and, in the case of isocyanates, may cause sensitization or cause or aggravate asthma and other adverse health effects.  As a result, if proper precautions are not taken or if the SPF insulation is not properly installed, building occupants may suffer adverse health effects caused by the chemicals in or emitted from the SPF insulation.

Moreover, SPF insulation may not be appropriate for certain consumers, such as people with pre-existing asthma, allergies or sensitivity to one or more constituent chemicals.  In addition, because the SPF insulation dramatically “tightens” the house, there is less fresh air coming in from the outside which, in turn, may cause or trigger allergies due to increased moisture or airborne allergens.  Unfortunately, homeowners are generally ignorant of this because these risks are typically not disclosed to them.  Making matters worse, many manufacturers do not disclose all of the chemicals contained in their products.  In contrast, the purported green attribute – energy efficiency – is typically highly promoted.  The EPA is currently investigating health problems associated with SPF insulation and there are several individual lawsuits as well as at least one national class action, with more expected, seeking recovery of damages arising from this purportedly “green” product.

What factors encourage greenwashing?

JD: Rising consumer demand for environmentally friendly and high efficiency products and services is leading to more claims of greenwashing.  I expect this market trend to continue with a corresponding increase in greenwashing claims.

Now, dear blog reader, it is your turn.  Do you believe the green washing problems will get worse before they get better?  Share your thoughts in the comment section of the blog.

 

Latent Defects: extending the statute of limitations (law note)

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defective-tools-cause-injuriesAs we’ve previously discussed, the statute of limitations for construction claims in North Carolina is generally three years.  That is, once 3 years have passed, you are generally protected from any lawsuit filed after that time.

Does that mean that no lawsuit can be filed against you subsequent to that time?  No.  First, the statute of limitations is an affirmative defense, meaning that you must timely assert the defense as part of your response to the lawsuit.

Secondly, it is sometimes not apparent when the three year period begins to run.  Substantial completion or final completion?  What if your work is finished, but the project is not– does the three year period not start until project completion?  The issue of whether the statute of limitations has run is complex, and a mixture of law and fact questions.  See, Lord et al v. Customized Consulting Specialty, Inc. et al, 182 N.C. App. 635, 643 S.E.2d 28 (2007).

Finally, be aware of the hidden danger of hidden dangers. 

The three years does not start to run until it becomes obvious that there is damage stemming from your professional negligence.  The applicable statute states that the three years “shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” N.C. Gen.Stat. § 1-52 (2005).

In other words, if there is a defect that is not readily observable and visual, the three years may not start to run until it becomes observable (e.g., through destructive testing, repair work, or renovation work).  This is what is known as a “latent defect”, and it can impose liability far beyond the initial 3 years.

Does the latent defect rule extend liability indefinitely?  No, it does not.  The statute of repose (6 years in NC; other states vary) will impose an absolute final date on real property improvements, after which no further liability can successfully be claimed.

Questions?  Drop me a comment, below.  Also, be sure to sign up for regular email updates and our free Construction Professional newsletter by entering your contact information on the top right of the homepage.

Photo “Defective Tools Cause Injuries” – NARA – 514107 

Top 3 Take-Away Lessons for Engineers from the Sewage case (law note)

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takeaway signAs we discussed yesterday, CH2M was held liable in negligence for the accidental death and other injuries sustained by workers at the Spokane wastewater treatment facility.  Today, a few take-away lessons for design professionals, regardless of where you work:

  1. Never assume that you cannot be sued.  The engineers at CH2M thought they had a slam-dunk case, because there was actual language giving them immunity in the law.  However, even then that immunity language did not stop the lawsuit and liability.  You can always be sued, even with the best language in the law or your contract.
  2. Even limited work can give you significant liability.  One of CH2M’s arguments was related to the fact that they were providing limited work on an “on call” service contract.  As the Court noted, just because you have not actually put pencil to paper (or made the CAD drawings), doesn’t mean that you are not “designing” in the eyes of a court of law.
  3. You must assume the negligence of others.  Okay, the case doesn’t specifically say this, but it does note that CH2M could not escape liability because the City had made modifications to the plant over the years.  The Court held that “a reasonably prudent engineer in the position of CH2M could reasonably have anticipated” that the plant might have been modified over the years, and that a prudent engineer would have conducted an engineering analysis to make that determination.

Comments, thoughts, or questions?  Drop me a line!  I want to hear from you.

Photo:  (c) Debbi Long via CC.

Protecting your Copyright in non-standard Construction Contracts (Law Note)

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copyright symbol exploadingLast week I discussed copyright issues under ConsensusDOCS and AIA form contracts.  This week, we’re taking a look at how to protect copyright in your design documents when you are not using a standard form contract.

If I’ve learned one thing about working with a lot of design professionals over the past decade, it is that many of them– too many– are just plain too nice.  That’s right, too nice.  They send polite letters of proposal to the client, and then begin work on a handshake deal.  Or, they willingly sign on to the Owner’s contract without pushing to negotiate more favorable, mutually beneficial contract terms.  Under the maxim that “no good deed goes unpunished,” sometimes such clients are giving away their copyright ownership without being appropriately compensated.

Unscrupulous, or at least naive, owners sometimes believe that because they paid for design documents, they own them and can use them for any purpose.  This, of course, is *usually* not true.  However, sometimes the owner agreement states that the designer’s work product is created as a “work for hire” or otherwise provide that the owner has an unlimited ability to use the work product regardless of the circumstances.  Such clauses should either be removed altogether or negotiated up front, with appropriately compensation being provided for such copyright ownership.

If you are working under a letter proposal, it should at least include language indicating that the design team maintains ownership rights in the design documents.  Further, you should make explicit that the owner has no right to continue to use design documents in the event the owner terminates your contract unless and until full payment for such documents is given to the design team.  Even better would be a requirement that the owner indemnify the design team from any unauthorized use of the design documents.  (Hey, a girl can dream, can’t she?).

Most importantly, realize that without the built-in protections of the standard agreements, it will be much more difficult to enforce your copyright ownership in your plans & drawings.  For a few moments extra work on the front end tweaking your letter proposals or negotiating your owner contract, you can save countless hours of heartache on the back-end.

Do you have standard copyright ownership language in your non-form construction contract?  Ever had to fight copyright issues with the owner? Share in the comments below.  And, if you have not already done so, sign up for direct email delivery of blog posts right to your in-box.

Photo (c) Jens Rydén via Creative Commons license.

Copyright Protection under ConsensusDOCS and AIA–which is better? (Law note)

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Large copyright sign made of jigsaw puzzle piecesWhich standard form contract provides “better” protection for copyright issues- ConsensusDOCS or AIA? The ever-so-hepful “it depends” is, as usual, the answer.

Are you the owner looking to use the plans you paid for even after you terminate an architect, or are you the architect looking to protect your work product?  If you are the owner, you will probably prefer ConsensusDOCS.  If you are the architect, your best bet is still the AIA documents.

Consider the following:

Under ConsensusDOCS 240,

  • the Owner receives ownership (except copyrights) of all documents, drawings, and data prepared by the architect or consultants for the Project, upon final payment for all sums due in the event of termination (Article 10.1).
  • the Owner has the option of being granted copyright ownership, contingent on making all payments required, including a stated copyright fee. (Article 10.1.1).
  • whether termination is for convenience or for cause by either party, the Owner can use the documents to complete the project, provided he pays all sums due (Article 10.1.2).
  • the Owner agrees to indemnify the architect for post-construction use of documents.  (Article 10.1.3).

Under AIA B101,

  • the architect and consultants are the owners of their respective instruments of service, retaining all rights, including copyrights (Article 7.2).
  • the Owner is granted a non-exclusive license in the instruments of service, soley for use in constructing, using, maintaining, altering and adding to the Project, provided the owner substantially performs, inclduing making prompt payments of all sums due (Article 7.3).
  • if the Owner does not pay all sums due, if the architect terminates the contract for cause, or if the Owner does not pay an extra fee after a termination for convenience, the Owner’s non-exclusive license terminates. (Article 7.3; Article 11.9).
  • the Owner must indemnify the architect against third party claims arising from the owner’s unauthorized use of documents. (Article 7.3.1).
  • if the Owner properly terminates the architect for cause, there is no indemnity against third party claims and no release of the architect from the owner’s claims arising from the use of the docuemnts (Article 7.3.1).

Do you have experience in managing copyright issues under either contract?  Which do you prefer?  Leave your thoughts in the comments section, below.

What if you have a non-standard contract?  Read about that at:  Copyright issues in non-standard construction contracts, including letter proposals.

 Photo (c) Horia Varlan via Creative Commons license.