In lawsuit by trainees claiming they were promised union construction jobs, Forest City/BUILD win key pre-trial victory

Developer Forest City Ratner and fellow defendants in the federal lawsuit filed by would-be construction workers who took a coveted pre-apprenticeship training program funded by the developer have won a significant pre-trial victory: a federal judge has excluded an expert witness retained by the plaintiffs.

After an oral argument 3/2/15 (which I missed), Judge Carol Bagley Amon ruled 3/31/15 that the expert, labor economist Louis R. Lanier was unconvincing in trying to estimate the number of hours the plaintiffs--20 of the 36 people in the program--would likely have worked if they had gained membership in one of the five New York unions they expected to join.

This does not undermine the plaintiffs' argument that they were promised jobs and union cards by a Forest City Ratner executive and representatives of the developer-funded Brooklyn United for Innovative Local Development (BUILD), a signatory of the Atlantic Yards Community Benefits Agreement--contentions that would be assessed in a trial.

But it undermines--though incompletely--the plaintiffs' effort to claim lost wages of several hundred thousand dollars per person. "The decision is disappointing, and we believe, fails to appreciate the reliability of the census data," said plaintiffs' attorney Matthew Brinckerhoff in response to my query. 

(Lanier was paid $275 an hour and estimated he'd spent 100 hours by the time of his deposition. So that was a considerable investment, at least $27,500 but far less than the legal fees--especially on the defense side.)

However, Brinckerhoff said, "we can still prove damages... through other means." For example, he said, one plaintiff actually did become a union carpenter, and his earnings--a robust $215,247 over nearly 34 months--could serve as an example. 

Then again, the defense has argued that many of the plaintiffs' spotty work histories undermined Lanier’s assumption that they would succeed as apprentices. 

That argument, plaintiffs' lawyers countered, was a Catch-22, since it "ignores the principal reason that Defendants themselves advanced, prior to the present action, for creating the pre-apprenticeship program: to ensure that the Atlantic Yards Project would expand employment opportunities in well-paid unionized jobs in the building trades for individuals who had not previously had access to such jobs."

What next--toward settlement?

The previous pre-trial decision, from last October, was a victory for the plaintiffs, as Forest City failed in its effort to be removed as potentially liable for damages. That decision was by Judge John Gleeson, who was since replaced on the case by Amon. (The reasons for the reassignment are unclear, but most often result from recusal.)

Given that the two key pre-trial issues have now been decided, the adversaries can better assess the value of the claims. A pre-trial conference is scheduled for May 6. 

As I've written, the case likely won’t end in a trial but rather a settlement. After all, the parties have already discussed settlement, according to court records, and a lingering lawsuit piles up more legal fees. Beyond that, both sides have witnesses who may fare poorly under cross-examination.

Looking at the decision

According to the judge, Lanier used data from the 2011, 2012 and 2013 March Supplements to the Current Population Survey sponsored by the U.S. Census Bureau and Bureau of Labor Statistics to estimate the average hours a tradesmen in each union would likely work, then filtered that national dataset to include only responses from unionized workers in the five relevant trades. He estimated the hours worked for each trade by averaging responses.

The economist then multiplied that result by 52 weeks to determine the annual hours worked. After criticism from the defense, Lanier revised his report to use a fewer number of weeks in his calculation.

After multiplying the applicable union rate by the average number of hours worked, Lanier subtracted the mitigating compensation actually earned by plaintiffs during the period. But he did not provide the revised calculation, according to the judge.

"First, Lanier fails to show that the respondents to the March Supplement are sufficiently representative of New Yorkers in the five unions at issue here," Amon wrote. "And second, he relies on exceedingly small numbers of such respondents in each of the five relevant trades without considering whether the results generated from those tiny samples are statistically significant."

Amon wrote that it was improper to assume that national survey data--aimed at macro-economic statistics such as the national or state unemployment rate-- is representative of the New York union members in the five trades at issue.

From the defense

Lawyers for Forest City--who also represent the now-defunct BUILD and its former CEO James Caldwell--argued that the plaintiffs "cite no facts or evidence in their opposition brief that could reasonably support Lanier’s unfounded assumptions" that plaintiffs would have worked 52 weeks (or any specific time), or would have worked steadily and gotten increased wages as soon as they became eligible.

Robert Sanna, Forest City Ratner’s executive vice president for design development and construction, provided evidence that "that the Atlantic Yards project, like the New York construction industry as a whole, customarily employs workers in phases, often of short duration," the defense said.

And while one plaintiff--who did get a union card--has worked "continuously," 14 plaintiffs were unemployed "for significant durations" prior to their enrollment in the training, the defense said.

From the Lanier report

Lanier's report summarized the annual compensation earned by plaintiffs between January 1, 2011 and October 24, 2013, based on documents and deposition testimony. Such sums would be subtracted from the overall damage claim.

For example, one plaintiff received a total of $60,747 from three jobs, at a law office, a detailing company, and a food company, but would have earned $195,958 as a laborer or $349,526 as an ironworker, according to the report.

Another earned $43,890 from a job as a home attendant, but would have earned $195,958 in total compensation as a laborer, according to the report.

The hope trainees had

One deposition highlighted the bleak employment situation some plaintiffs faced, and points to the deep well of need that Atlantic Yards and BUILD were seen as addressing:

Q. What did you do between 2000 and 2005?
A. Nothing.
Q. You weren't working at all?
A. No, I wasn't working; I mean, I was doing side jobs and stuff like that, but it was nothing that was on the books.
Q. When you say nothing on the books, you mean you were working and getting paid, but not as a full-time job?
A. Right.
Q. Just doing odd jobs?
A. Yeah, trying to survive, yeah.