SAN DIEGO (CN) — Citing "changed circumstances," Republican presidential candidate Donald Trump moved late last week to decertify a San Diego class action over seminars aimed at teaching attendees how to get rich off the collapse of the U.S. real estate market.
In his 11-page reply filed Friday in support of a motion to decertify the class in Low v. Trump University, Trump attacked the "ensuing developments and changed circumstances" in the case brought by seminar attendees, including changing the lead plaintiff, motions to amend and recertify aspects of the class, and other changes.
Trump claims the recent switch-ups and motions have positioned the case in "these unchartered waters" because the plaintiffs have "stretched the law." He argued the class should be decertified because the plaintiffs' procedural arguments in the case are without merit and the court has a duty to monitor class decisions as evidence is developed in the case.
In the older of two San Diego class actions against Trump University, Sonny Low and former students claim they were defrauded by marketing tactics used to position the school as a way to get rich off the foreclosure crisis that resulted from the Great Recession. Among the most egregious claims, are that Trump University claimed it was accredited and that instructors were "handpicked" by Trump himself.
In their reply against the motion to decertify, Low and other plaintiffs in the case asserted defendants "were not diligent" because they could have filed the motion to decertify before the cut-off date, but Trump argues a cut-off date does not apply and asserts new facts in the case are what sparked the motion filing in the first place.
The new developments cited by Trump include the court order to allow former lead plaintiff Tarla Makaeff to withdraw, Low's admission during his deposition he had never heard or saw a misrepresentation involving Trump University's accreditation status, and other changes to the plaintiffs' trial plan.
The class response that evidence Trump claims he recently became aware of was available "years ago" and asking the court to disregard it does not hold up, Trump argues. Instead, the latest actions by the plaintiffs to abandon certain claims coupled with new evidence, court orders and previous evidence "together establish that plaintiffs cannot meet their burden," Trump argues.
"Plaintiffs' attempt to manufacture a dispute between 'new' and 'old' evidence is inappropriate and inconsistent," Trump's reply states.
Addressing aspects of the plaintiffs' trial plan, Trump points out the class has failed to cite any case law in support of their "unprecedented" full-refund model which would shift the burden to prove damages over to Trump.
"Plaintiffs fail to identify any state case sanctioning their windfall 'baseline' damages model, which indisputably expanded plaintiffs' rights to damages in an ordinary consumer case," Trump claims. "Decertification is necessary because plaintiffs cannot prove zero value on a class-wide basis and have no alternative damages model."
Trump claims the class members cannot prove Trump University utilized the same marketing tactics across the board, such as the fact Trump University instructors were "handpicked" by Trump or that the real estate school was referred to as "accredited."
Trump also says recent changes and motions by plaintiffs are an attempt to "reconcile" issues or discrepancies with their claims while meeting the court requirements to maintain status as a class action.
Plaintiffs' request to preclude former Trump University students' testimony from being entered into evidence if they opt out of the class or do not reside in California, New York or Florida is not "conceivable" because all "relevant and admissible evidence must be considered — not just plaintiffs,'" Trump argues.
Based on Low's admission during his deposition that he "was never misled" about Trump University's accreditation status, the plaintiffs are "seeking to manufacture a new theory of liability," by requesting to replace their "common misrepresentation" claim with a "fraudulent omission" claim, which Trump said "serves to expose more individualized issues warranting decertification," according to his reply.
The plaintiffs' motion "seeks to avoid addressing their deficient damages theory" and comes as "no surprise," Trump said.
"They cannot reconcile the disparate issues in their claims with the requirements for maintaining the case as a class action. Their failure to formulate a viable trial plan exemplifies some of the many issues which now compel decertification," the filing states.
A hearing on the motion to decertify the class is scheduled for July 22.
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