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Thursday, November 3, 2016

Lawyers Skirmish in the Trump University Fraud Lawsuit on Eve of Trial/Election

The Donald
Just as our historic and contentious 2016 presidential election draws nigh, so does the federal class action fraud trial against Republican nominee Donald Trump. On Wednesday, November 9th, our nation will have a president-elect that either: a) is a defendant in a federal class action fraud trial scheduled to commence later this month, or b) is the subject of an on-again-off-again FBI investigation for mishandling classified documents. As we head to the polls on Tuesday, take your pick.

The case against Trump and his, er, University was filed back in 2010. The class action plaintiffs in the suit, filed in the Southern District of California, summarize the nature of their action as follows:
Trump University markets itself as a University driven by the mission to "train, educate and mentor entrepreneurs on achieving financial independence through real estate investing." It is anything but. In fact, rather than serving its students as a university or college, Trump University is more like an infomercial, selling non-accredited products, such as sales workshops, luring customers in with the name and reputation of its founder and Chairman, billionaire land mogul Donald J. Trump. Trump and his so-called University promise "mentorships", urging customers that it's the "next best thing" to being Donald Trump's next "Apprentice". But as class members quickly find out, all Trump University provides is empty promises. The primary lesson Trump University teaches its students is how to spend more money buying more Trump seminars.
Over the past six-years, the high-powered lawyers on both sides of the litigation have conducted tortuous methodical discovery, leading to nearly 600 docket entries and a much adjourned trial date now scheduled for November 28, 2016.

How does a class action case get to be six-years old in federal court without going to trial? Old school aggressive lawyering.

For their part, Trump's New York City law firm, O’Melveny & Myers, has deployed its usual strategy for their famous client: delay, adjourn, and continuously file aggressive motions and counter motions to sand down the plaintiff until there is nothing left to try, or the plaintiffs' money runs out.

By all indications, however, this strategy will not be effective in getting yet another trial adjournment in this class action fraud suit. Judge Gonzalo Curiel has indicated that the trial will proceed, regardless of the election results.

Thus, if Trump wins the election, we here at the Law Blogger wonder, will president-elect Trump attend his own fraud trial? At that point, we predict that he will not be bothered by such an irritating appointment. 

On the other hand, like Hillary Clinton's Weiner-tainted email fiasco- it is a mess of Trump's own making that will not go away, regardless of the heights to which he ascends. If it does not settle, the trial likely will grind-on in 2017, as scheduled, with the Donald in absentia.

A raft of pretrial motions were filed by Trump's lawyers on Monday, including newly disclosed exhibits and witnesses. Plaintiffs filed a motion to strike all undisclosed witnesses and exhibits.

One week from today -two days post-election- Judge Curiel will decide both sides' pretrial motions. Also, he is expected to endorse the firm trial date of November 28th. We'll see about all that.

Plaintiffs, as a class, have the burden to establish that Trump violated a series of California consumer protection laws, and committed negligent misrepresentation, false promise, and fraud relative to the real estate seminars. While most folks would be skeptical about parting with more than $35k for something masquerading as a trumped-up "University", the trial will be about the classification and meaning of the word "University".

Words and classifications do have meanings and consequences. Just ask Secretary Clinton about the meaning of the word "classified".

In dealing with this fine American mess, perhaps Judge Curiel will take a corpus linguistic approach to the series of opinions and orders he is about to unleash.

Post-Election Post-Script.
Just as fast as he is walking back much of his campaign rhetoric -to the chagrin of his more fervent supporters- President-Elect Trump also finds himself doing things in court that he detests and that he derides other businessmen and lawyers for doing: settling a lawsuit.

Trump has agreed to pay $25 million to settle cases against his now infamous Trump University. Twenty one million will go to about 7000 class action members and $4 million goes to the New York Attorney General for violating state education laws.

So Mr. Scorched-Earth Litigator becomes Mr. Settlement. Now there is talk that Trump is considering settlement in many of the other 75+ civil lawsuits filed against him; no one knows the exact number of suits.

Thus Trump joins the good company of Theodore Roosevelt, Harry Truman, John F. Kennedy, and William Jefferson Clinton: Presidents who were sworn-in with the baggage of a lawsuit. All but Clinton settled their respective suits. Clinton's went all the way to the SCOTUS which held in Clinton v Jones that a sitting president is not immune from civil litigation. Who could forget Clinton's bottled rage when he appeared for his 4-hour deposition in the Paula Jones case.

At a minimum, the remaining cases are going cost Trump millions. We shall see if any of the cases has the traction to evade settlement and force a sitting president into a civil trial. That would be a first.

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