Trump U. Class Says|Opt-Outs Shouldn’t Testify


     SAN DIEGO (CN) — Former Trump University students suing Donald Trump want to prevent the Republican presidential candidate from cherry-picking positive testimony from a handful of students who opted out of the looming 7,500-member class action.
     In an opposition filed Friday, Sonny Low and the other lead plaintiffs in Low v. Trump University claim that long before their 2010 class action case was even certified, Trump “aggressively sought out ‘satisfied’ former students nationwide” who’d be willing to testify about their positive Trump University experience.
     Low and the others sued Trump long before he announced his bid for president, claiming they were duped into paying upwards of $35,000 based on the promise that they’d learn insider real estate secrets from instructors “handpicked” by Trump himself.
     In Friday’s filing, the students claim Trump launched an “unprecedented, nationwide multimedia campaign” that touted Trump University and condemned its detractors in the hopes of finding willing students to testify on the school’s behalf if the time came. The plaintiffs want the students who opted out of the class action to be barred from testifying during the first phase of the trial.
     Out of 7,611 former students in Low and the related, Cohen v. Trump case, only 13 opted out of the class actions, the students say. If Trump wants to call as witnesses eight of the opt-out students — whom he has identified — the plaintiffs say they would have to call 600 former students per opt-out student for the testimony to be a fair ratio.
     “Defendants seek to parade a few needles before the jury — and destroy the class action status of this case in the process — by forcing plaintiffs to present the entire haystack so the jury is not misled,” the filing read.
     Interestingly, one of the eight students Trump wants to call as a witness is former lead plaintiff in the case, Tarla Makaeff. U.S. District Judge Gonzalo Curiel allowed Makaeff to withdraw as lead plaintiff earlier this year when she claimed testifying during the trial would conflict with her new job and cause her emotional distress.
     Since Makaeff’s withdrawal, Trump has made a big issue of changes he said the class has made at the last minute, even asking to decertify the class. That motion was denied last month.
     Trump hopes the testimony of opt-out students like Marla Rains Colic will illustrate that not all students believed Trump University was accredited or that Trump was personally involved in the day-to-day management of the school, including “handpicking” instructors.
     The plaintiffs claim the testimony of absent class members is irrelevant to the common liability issues certified by the court. They say the students Trump wants to call to testify account for less than 0.002 percent of all live-event students, and that there’s no way they could speak for the entire class.
     “There are always anomalies due to quirky perspectives, dumb luck or any number of other reasons. That is why a small number of witnesses is extremely telling, given Trump’s aggressive multimedia campaign to enlist students as his shields. The fact that defendants only found a few willing candidates, despite Trump’s celebrity and power, only bolsters plaintiffs’ point that these are outliers,” the plaintiffs say in the opposition.
     Hundreds of students have contacted the plaintiffs’ attorneys, and in the past two weeks alone, 50 “student-victims” signed declarations in support of the class, according to the filing.
     “These facts bring into sharp focus why a few outliers simply cannot meet the threshold test for relevance in defendants’ own case that is ‘properly generalized to the class as a whole,'” the class says.
     Since the Low case is about Trump’s “misconduct in a misleading marketing scheme” and not that of Trump University students, testimony from absent class members is inappropriate, according to the plaintiffs.
     But Trump argues the absent class members should be allowed to testify due to his assertion that all individual class members must prove they were exposed to the same marketing misrepresentations as to the “accreditation” and “handpicked” claims.
     The plaintiffs called Trump’s argument a “phantom issue, and say after the first phase of trial Trump will be able to present proof against specific students.
     Testimony by absent class members should also be excluded because of its high potential for “unfair prejudice, confusion of issues and misleading the jury,” the plaintiffs claim.
     The lead plaintiffs were vetted by the court and found to have claims “typical to that of the proposed class members.” Allowing the absent class members to testify would give unfair weight to only a handful of former students in a sea of class members who say they were cheated of thousands, the plaintiffs say.
     “To allow nonclass members who were not scrutinized by the court to effectively speak on behalf of the class would undermine the representative action and create a false parity between typical students and atypical ones,” the students claim.
     If testimony from students “culled by defendants to present a curated viewpoint” was allowed, it would leave jurors with a “misleading impression that the margins represent the other side of the middle” and would significantly lengthen the first phase of the trial, according to the plaintiffs.
     The Low v. Trump University trial is scheduled to begin Nov. 28.

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