A Tale of Two Cases Against Trump University

     SAN DIEGO (CN) – While barrels of ink have been spilled over Donald Trump’s racially inged attack on a federal judge, little air time and newspaper print has been devoted to the legal underpinning of the two cases against Trump University now moving through federal court in San Diego.
     The first question raised by the two cases is why there are two, and not one, since both cases are class actions naming the likely Republican presidential candidate as principal defendant.
     University of California, San Diego Law Professor Sean Martin said there is time to consolidate both cases should either of those classes desire to do so, but slight differences in the plaintiffs and the claims have caused the bifurcation.
     The first case, Low v. Trump, is a class action suit involving Trump University students in three states, New York, California and Florida,. Whereas the second case, Cohen v. Trump, filed three years after, involves a much larger, nationwide class and a more complex set of claims that include racketeering.
     The older Low case centers on rather traditional claims of false advertising although it also includes elder abuse claims that contain more legal elements while the newer Cohen case claims Trump University violated the Racketeer Influenced and Corrupt Organizations Act (RICO).
     The Low case is expected to be the first to come to trial. It is also the simpler, more straightforward of the two, said law professor Martin.
     Essentially, the plaintiffs are claiming customers made purchases based on one of the three following assertions made by Trump University, which turned out to be deceptive.
     The first claim relates to the use of the word “university” in the title Trump University.
     The claim is that use of that designation led reasonable consumers to believe Trump University was an institution of higher education with professors, degrees, accreditation etc. when in fact Trump University possessed none of those things and instead consisted of three-day real estate seminars in various hotel rooms.
     The second claim of false advertising centers on the university’s promise that its classes would be taught by experts hand-selected by Donald Trump himself. The plaintiffs claim the teachers often had zero or very little experience in real estate and were not qualified experts.
     Trump admits he had little involvement in the selection of any of the instructors or mentors beyond glancing at resumes, according to depositions conducted by Jason Forge, lead plaintiff attorney in the Cohen case, recorded in two sessions around the holidays.
     “I would see some resumes, but I told him, you know, I want very good people,” Trump said during the deposition.
     In the same series of depositions, the former president of Trump University, Michael Sexton, contradicts that assertion, saying Trump had practically no involvement in the selection of any of the organization’s personnel.
     The final claim in the Low case relates to Trump University mentors, which the university claimed would assist attendees who purchased a $35,000 upgrade, for at least a year. The mentors often had zero interaction with students beyond the initial three-day seminar, the plaintiffs claim in the suit.
     While Martin said the atmospherics of the case are bad — encouraging people to pay $1,500 to attend a three-day seminar at which attendees are pressured to spend an additional $35,000 — the law professor said the case if far from a slam dunk.
     “The facts are not at what is at issue here, what is at issue is whether a reasonable person might rely upon these assertions to make a decision to purchase the product,” said the professor.
     In other words, Trump and his attorneys are not refuting the facts put forward by the plaintiffs, they are merely saying those facts do not rise to the level of fraud or false advertising.
     The defendants, including Trump, say the statements don’t constitute false advertising, but instead represent the standard manner in which consumers are treated in the business environmnent of the United States.
     They argue that calling the operation a university, calling the instructors and mentors experts, and indicating Trump had personal involvement in the selection “are classic examples of sales puffery common to advertising everywhere.”
     With that main argument Trump and his attorneys sought summary judgment, a motion that was denied by U.S. District Court Judge Gonzalo Curiel last November, setting the stage for a trial — currently slated to begin just after the presidential election on Nov. 28 of this year.
     “The judge decided these questions of fact must be decided by a jury,” Martin said.
     Meanwhile, it is the other case, Cohen v. Trump that has grabbed headlines recently, despite being still in preliminary stages and the and farther out from trial. The Cohen case is also before Judge Curiel.
     The recent media blitz began after the Washington Post filed a request for the release of documents, depositions and other court materials related to the case.
     The documents were unsealed by order of Curiel, who ruled in late May on a motion to intervene in the Cohen case brought by the Washington Post. The Post said that given the prominence of the case, and Trump’s status as de facto Republican nominee for president, the documents should be released.
     When Curiel allowed the documents to be released, Trump began to attack his Mexican heritage, saying the judge was biased against Trump because the presumptive nominee has campaigned on a plank of building a large wall between the United States and Mexico.
     Aside from the extracurricular comments made by the presidential nominee, the Cohen case differs from the Low case because of the higher burden of proof on the plaintiffs associated with brining a RICO case. Thus, rather than a simple false advertising case, its allegations are that Trump University engaged in a sustained pattern of corrupt practices.
     “RICO cases are more complicated and more difficult to prove,” Martin said. “Rather than saying it was a simple case of false advertising, they must prove Trump University was a corrupt organization engaged in a pattern of fraud, where they knew what they were saying was false, but they did it anyway.”
     The stakes are also higher in a civil RICO case, as the plaintiffs are entitled to triple damages and triple attorney’s fees as well.
     The Cohen Case, which aside from the burden of proof, hinges on the similar claims of fraudulence related to the use of the word university, whether instructors were qualified and/or were picked by Trump himself and whether the mentors provided the advertised services.
     The case survived a motion to dismiss, and a final pretrial conference is slated for August 28 in San Diego.
     “There is some pretty bad atmospheric stuff for Trump,” Martin said. “The people he hired were generally just salesmen pressuring people to buy these things.”
     However, Martin says in terms of the core allegations that both cases hang on, there is nothing that Trump University or Trump himself said that goes beyond the common exagerrations and overstatement used to sell goods to individuals, referred to in the law as “puffery.”
     “In a rational world, they would have settled this case,” he said. “Both sides have a reasonable position.”
     However, Trump is unorthodox in the business world in that he prefers not to settle, instead fighting complaints all the way through trial.
     Based on the facts that have emerged so far, Trump carries the heavier load, at least on the simpler false advertising claims in the Low case, said the UCSD law professor
     He concluded, “I’d rather be on the plaintiff side.”

%d bloggers like this: