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Andrew Apple, Pascal Armstrong, Maurice Griffin, Kathleen v. Atlantic Yards Development Company

June 18, 2012

ANDREW APPLE, PASCAL ARMSTRONG, MAURICE GRIFFIN, KATHLEEN NOREIGA, KIMRON PRIME, JONATHAN SILVA, AND CLARENCE STEWART, PLAINTIFFS,
v.
ATLANTIC YARDS DEVELOPMENT COMPANY, LLC, BROOKLYN ARENA LLC, BROOKLYN UNITED FOR INNOVATIVE LOCAL DEVELOPMENT, JAMES CALDWELL, FOREST CITY RATNER COMPANIES, LLC, FOREST CITY ENTERPRISES, INC., GAUSIA JONES, JANE MARSHALL, ORBIN'S BIG BREEN MACHINE, AND BRUCE RATNER, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Plaintiffs Andrew Apple, Pascal Armstrong, Maurice Griffin, Kathleen Noreiga, Kimron Prime, Jonathan Silva and Clarence Stewart bring this action asserting various claims arising from their participation in what they allege was represented to be an employment training program. They allege that in exchange for their participation in the program, they were promised membership in a labor union and construction jobs at the Atlantic Yards construction project in Brooklyn, New York. They further allege that even though they completed the program and provided two months of unpaid construction work, the promised union membership and jobs were not provided. They have asserted claims against Atlantic Yards Development Company, LLC ("Atlantic Yards Co."), Brooklyn Arena LLC ("Brooklyn Arena"), Forest City Ratner Companies, LLC ("FCRC"), Forest City Enterprises, Inc. ("FCE"), Jane Marshall and Bruce Ratner (collectively, the "Forest City Defendants"); Brooklyn United for Innovative Local Development ("BUILD") and James Caldwell (collectively, the "BUILD Defendants"); and Gausia Jones and Orbin's Big Green Machine (collectively, the "Jones Defendants").

The Defendants have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss some of the claims for failure to state a claim. For the reasons set forth below, the Defendants' partial motions to dismiss are granted in part and denied in part.

BACKGROUND

A. Factual Background

The Forest City Defendants are developing the Atlantic Yards project, a major real estate development project in Brooklyn, New York. See Compl. ¶¶ 33--34, ECF No. 1.*fn1 It includes commercial and residential buildings as well as an arena that will be the home of the Brooklyn Nets professional basketball team. Id. ¶ 34.

The Atlantic Yards project provoked opposition from many residents of the surrounding community. Id. ¶ 35. To assuage these concerns, the Forest City Defendants promised that the project would bring thousands of permanent jobs as well as 17,000 construction jobs to the area. Id. ¶ 36.

The Forest City Defendants also promised to provide certain benefits to the community in an agreement called the Community Benefits Agreement (the "CBA"). The parties to the CBA included Atlantic Yards Co., Brooklyn Arena and several organizations that were created after the Atlantic Yards project was announced and that received some or all of their funding from the Forest City Defendants. Id. ¶ 37. Among these organizations was BUILD. Id. BUILD receives both significant funding and office space from FCRC and related entities. See id. ¶¶ 49--50. BUILD "was essentially created to see the [Atlantic Yards project] into fruition." Id. ¶ 53.

Among the promises in the CBA is the creation of a program to train community residents for construction jobs at the Atlantic Yards project, known as the pre-apprenticeship training program (the "PATP"). Id. ¶ 39. The parties to the CBA agreed to jointly initiate and coordinate the PATP, to make every effort to enroll community residents, and to secure funding for the program. See id. Atlantic Yards Co. and Brooklyn Arena also agreed to find suitable space to house the PATP. See id. ¶ 40.

The goal of the PATP was to obtain union memberships and jobs for its participants. The CBA states that Atlantic Yards Co. and Brooklyn Arena intend that the NYC Building Trades Council "will accept workers from the [PATP] into [its] apprentice program." Id. ¶ 46 (internal quotation marks omitted).

BUILD began recruiting participants for the PATP in July 2010. Id. ¶ 54. At an information session on August 4, 2010, hundreds of potential participants attended, including some of the Plaintiffs. Id. ¶ 55. Those who passed an aptitude test were invited to an orientation session. Id. ¶¶ 55--56. Most of the Plaintiffs also attended the orientation session. Id. ¶ 56.

At the orientation, Caldwell, the Chief Executive Officer of BUILD, told attendees that everyone who completed the PATP would get a job at the Atlantic Yards construction site and membership in one of the primary unions at the site -- the unions for laborers, electricians and carpenters. Id. Caldwell told the attendees to "prepare to be millionaires." Id. Caldwell assured one of the Plaintiffs that he would not have to apply to a union because "[t]here are thirty construction books reserved for graduates of this class." Id.

¶ 57. Marshall, a senior executive of FCE and FCRC, told attendees that they would have construction work for ten years and that PATP participants would receive union membership. See id. ¶ 59.

In reliance on these and other statements, the Plaintiffs decided to participate in the PATP. See id. ¶¶ 60--61, 63--64. Several of them quit their jobs or turned down job offers in order to do so, relying on the promise of union memberships and high-paid construction jobs. See id. ¶ 61.

The PATP commenced with classroom sessions. See id. ¶ 65. Participants received instructional materials, but these were "not sufficiently detailed to provide participants with new skills or knowledge." Id. ¶ 66. They were required to have certain equipment, which they acquired at their own expense. See id. ¶ 68.

During the first month of the program, Caldwell told participants that Ratner was working to identify a site for them to receive hands-on training. See id. ¶ 70. Caldwell also told them that he was waiting for the Forest City Defendants to provide the necessary funding for this hands-on training. See id.

During the course of the PATP, Caldwell and others continued to promise participants that they would receive union memberships at the end of the program. See id. ¶ 71. He even told them that the union memberships had already been obtained. See id. ¶ 72. Jones, one of the PATP instructors, told participants "that he had seen the union cards and that they were ready to be given away upon completion of the PATP." Id. ¶ 74.

Jones's company, Orbin's Big Green Machine, provided a worksite at which PATP participants were to receive the promised hand-on training. See id. ¶ 76. Caldwell told one of the Plaintiffs that Ratner had personally approved this site. See id. The worksite was a residential house on Staten Island that was being remodeled by Jones's company. Id.

The PATP participants were the only workers at the site. Id. They were responsible for all the work, including heavy labor and demolition. Id. ¶ 79. The participants received little actual training and, to the extent they did receive training, they were taught improper methods. See id. ¶¶ 80, 82; see also id. ¶ 78. PATP participants were told that working at the Staten Island site was a requirement for completion of the program and receipt of the promised union cards. See id. ¶ 83.

PATP participants worked at the Staten Island site for approximately two months and were paid nothing. See id. ¶ 84. By the seventh or eighth week, they were provided with MetroCards by BUILD for their transportation. See id. The funding for the MetroCards (as well as other PATP expenses) came from the Forest City Defendants. See id.

After completing the program, none of the Plaintiffs received union memberships or construction jobs at the Atlantic Yards construction site. See id. ¶¶ 87--97. Two of the Plaintiffs did obtain union memberships, but they did so on their own without any assistance from BUILD. See id. ¶ 87.

B. Procedural Background

The Plaintiffs commenced this action on November 15, 2011. Their complaint asserts the following claims: (1) failure to pay the federal minimum wage in violation of the Fair Labor Standards Act (the "FLSA"); (2) failure to pay the New York minimum wage in violation of the New York Labor Law (the "NYLL"); (3) fraudulent inducement; (4) deceptive practices in violation of ยง 349 of the New York General Business Law; ...


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