Popehat already explained in general why there’s nothing unusual about Judge Curiel’s rulings in the Trump University case, i.e., that denying summary judgment is the norm. Nonetheless, Kevin Drum recently mused:

I think we all know perfectly well that Curiel is just an ordinary judge, and Trump is ranting against him because that’s what Trump does whenever something doesn’t go his way. He whines. Endlessly. Still, I’m kind of curious. It would be interesting if some kind of qualified lawyer type went through the records of these trials and reported back on whether Curiel seems to be conducting things fairly. Maybe he’s not! Maybe he really does hate Trump. Unfortunately, I suppose that would be a lot of work. Oh well.

Let’s take a trip “through the records” of Makaeff v. Trump University, No. 10-cv-0940, in the United States District Court for the Southern District of California. (Coincidentally, I’ve argued in that courthouse many times over the past few years, most recently in April. None of those cases were in front of Judge Curiel.)

Just so we have a baseline of Trump’s complaints, Jake Tapper spent a while trying to understand what, exactly, Trump had against Judge Curiel. Trump gave only two examples of “unfair” rulings by Judge Curiel:

• “I have a case that should have been dismissed. … I should have won this case on summary judgment.”
• “The woman that brought the case … gave an evaluation that was like the best you’ve ever heard. … They went to the judge and they said, Your Honor, we don’t want her anymore to be our plaintiff. So we say, let’s dismiss the case, that’s okay, let’s dismiss the case, and he said no I won’t dismiss the case and she doesn’t have to be the plaintiff.”

Trump repeated again the summary judgment complaint: “If somebody else were there, this would have been thrown out on summary judgment.”

The Makaeff case was filed on April 30, 2010, and transferred to Judge Curiel on January 30, 2013. I initially wrote a timeline of the orders after then, but, like with most litigation, a pure chronology quickly gets boring and confusing. So we’re going to break it up into three groups:

1. The Class Certification Orders
2. The Summary Judgment Orders
3. The Orders Specific To Plaintiff Makaeff (“the woman that brought the case”)

The punchline is quite simple:

• On the issues where Judge Curiel had discretion, he generally ruled against the plaintiffs, including refusing their request to amend the complaint and extend discovery, and, most recently, rejecting their trial plan.
• On the issues where Judge Curiel had to rule on disputed legal concepts, he generally ruled against the plaintiffs. Trump’s own lawyers said the class action certification was “narrow,” and they’re correct. The plaintiffs sought a nationwide class action over Trump University’s deceptive “upsell” practices, but Judge Curiel refused to certify the claims for plaintiffs from 47 states, and, for the three states remaining, trimmed down the claims to just three “core” misrepresentations.
• There’s only really one issue where Judge Curiel truly sided with the plaintiffs, and that was over the appropriate proof of damages. Trump argued that the plaintiffs had to prove the “difference in value” between what they received and what they were promised, and the plaintiffs argued they were entitled to a full refund because they received nothing of value. Judge Curiel’s decision was hardly unusual: to support it, he relied on a Ninth Circuit case (that’s the appellate court which will eventually review this case) and a District Court case that assessed damages in a case involving a deceptive business coaching scam.

The Class Certification Orders

On October 7, 2013, Judge Curiel denied the plaintiffs’ motion to file an amended complaint that would add a civil RICO claim and would extend discovery. This order precluded the plaintiffs from adding a new claim and a host of new evidence to their case, and it forced them to rush to prepare their case for the class certification hearing. For what it’s worth, an order like this is entirely at the court’s discretion and is essentially unreviewable (see page 4 of the order for the standard of review). If Judge Curiel wanted to give the plaintiffs everything they wanted, there would have been nothing Trump could have done about it, not even on appeal.

On February 21, 2014, Judge Curiel granted in part and denied in part plaintiffs’ motion for class certification. Although defendants always fight “certification” completely, a “narrow” certification of the class action is one of the key goals of a defendant. It makes it harder for the plaintiffs to win and it limits the damages that can be awarded. You don’t have to take my word for this part. Here’s Trump’s own lawyers recounting the “procedural history” of the case in a brief they filed last week, on June 3, 2016:

This case was certified on February 21, 2014. Plaintiffs sought to broadly certify a class based on defendants’ “centrally-orchestrated strategy” to defraud TU students through “a fraudulent ‘up-sell’ scheme.” Dkt. 124 at 1. The Court rejected the request and narrowly certified three “core” misrepresentations for class-wide determination: (1) “Trump University was an accredited university”; (2) “students would be taught by real estate experts, professors and mentors hand-selected by Mr. Trump”; and (3) “students would receive one year of expert support and mentoring.” Dkts. 298 at 4; 418 at 2.

In other words, Trump successfully limited the class action to a small part of what the plaintiffs wanted. You can read the order yourself at page 12, to see where Judge Curiel derides the plaintiffs as having “woven a quilt made up of causes of action from all fifty states,” and instead grants the class action solely on those three “core” misrepresentations above, and solely for “persons residing in California, New York, and Florida.” Why these states? Because they have consumer-friendly laws. When a court reviews a class action, it reviews whether the plaintiffs can actually prevail under each state’s laws, and those were the only states where Judge Curiel thought they could prevail. It’s common to see “nationwide” class actions that end up limited to California and/or New York and/or Florida.

On April 1, 2015, Judge Curiel granted Trump’s motion to delay ruling on their motion for summary judgment until after ruling on their motion to “de-certify” the class or after the “class notice” period has expired. This was, again, a matter of pure discretion. The point of Trump’s motion was that Trump didn’t want to win summary judgment only to see class members suddenly opt-out and then file their own individual cases. There would be no point in filing this motion unless Trump felt he had a good chance at winning big in front of Judge Curiel, e.g. decertification of the class or dismissal on summary judgment.

On September 18, 2015, Judge Curiel granted in part Trump’s motion for decertification of class action. This included a big win for Trump: Judge Curiel decertified all issues of damages, which means that each plaintiff will have to individually prove damages, even if the class action prevails at trial. It also included a loss for Trump on a technical issue that requires a little bit of explanation, because, later on, it was the only issue raised by Trump University in support of summary judgment.

The legal question is: how do you value the damage to people who enrolled in Trump University? Trump’s lawyers drew analogies to cases involving food and tangible items, where the consumer received some value for their purchase but not the full value of what they were promised, and so the proper damages to be awarded would be the difference in value. The plaintiffs’ lawyers drew analogies to cases involving illegal substances and ineffective medications, where the consumer received nothing of value, and so the proper damages to be awarded would be a full refund.

Judge Curiel’s response was to say that neither analogy really worked, and that the closest analogy were cases under the FTC Act:

Defendants [Trump and Trump University] rely on cases involving food and tangible items to argue that the full-refund model is unacceptable. Plaintiffs rely on cases involving illegal and ineffective medications to support their full-refund model. However, the Court finds that both of these sets of cases provide only limited support in the instant case …




The Court finds that claims filed under the FTC Act are most analogous to the instant case. Plaintiffs rely on FTC v. Figgie Int’l, Inc., 994 F.2d 595 (9th Cir. 1993) (per curiam) to support a full-refund model. Figgie was brought by the FTC under the FTC Act, 15 U.S.C. § 57b. While it does not purport to interpret California law, both the FTC Act and California law on restitution provide for the “return of property” resulting from unfair or deceptive acts. Clark v. Superior Court, 235 P.3d at 176; 15 U.S.C. § 57b(b). In addition, the Figgie court analyzed the full-refund under general restitutionary principles. 994 F.2d at 606–607.

Judge Curiel thus went with a case decided by the Ninth Circuit — which is, of course, the appellate court that would hear this case, if it is appealed — that explained how restitution works. As Judge Curiel quoted the Ninth Circuit,

To understand why, we return to the hypothetical dishonest rhinestone merchant. Customers who purchased rhinestones sold as diamonds should have the opportunity to get all of their money back. We would not limit their recovery to the difference between what they paid and a fair price for rhinestones. The seller’s misrepresentations tainted the customers’ purchasing decisions. If they had been told the truth, perhaps they would not have bought rhinestones at all or only some. The district court implied this notion of a tainted purchasing decision with its qualification “given the misrepresentations recommended by Figgie and made by distributors to consumers.” The fraud in the selling, not the value of the thing sold, is what entitles consumers in this case to full refunds or to refunds for each detector that is not useful to them.

FTC v. Figgie Int’l, Inc., 994 F.2d 595, 606 (9th Cir. 1993). As Judge Curiel put it,

As in Figgie, Plaintiffs assert the fraud was in the selling by TU, not in the value of the thing sold. That is, students paid for TU programs because they believed the misleading representations that Trump had hand-picked the instructors and would share his secrets to his success. Cf. United States v. Kennedy, 726 F.3d 968, 974 (7th Cir. 2013) (full-recovery of what was paid for victim who received counterfeit art that possessed intrinsic beauty and value). According to Plaintiffs, the issue is not the value or appeal of the classes they did not sign up for (i.e., the rhinestones) — the issue is that they did not receive what they thought they were buying (i.e., the diamonds).

This isn’t an unusual ruling. It’s a straightforward application of precedent from the appellate court. Indeed, Judge Curiel identified a case from another District Court in the Ninth Circuit that was surprisingly similar — because it involved a deceptive business coaching program — and which allowed full recovery of amounts paid by consumers:

Similarly, FTC v. Ivy Capital, Inc., No. 2:11-CV-283 JCM (GWF), 2013 WL 1224613 (D. Nev. 2013), supports Plaintiffs’ position. Ivy Capital involved deceptive marketing of a business coaching program designed to help students develop on-line businesses. Among the deceptive practices were misrepresentations as to the quality of the coaches and what the coaches could provide. The Ivy Capital court permitted full-recovery and held that where consumers suffer economic injury resulting from the defendants’ violations of the FTC Act, equity required monetary relief in the full amount lost by consumers. Id. at *17 (citing FTC v. Stefanchik, 559 F.3d 924, 931 (9th Cir. 2009)).

For what it’s worth, that case was decided by James C. Mahan, who was appointed to the bench by George W. Bush.

The Summary Judgment Orders

On November 18, 2015, Judge Curiel ruled on Trump’s and Trump University’s motions for summary judgment, granting them in part and denying them in part.

Trump University’s motion included a summary of its argument:

Plaintiffs cannot meet their burden to produce admissible evidence of restitution or damages linked to the alleged “core” misrepresentations. Plaintiffs attempt to establish damages based on a full-refund theory, a methodology which has been soundly rejected in similar false advertising cases. The only appropriate damages theory—a differential-in-value method—requires that Plaintiffs prove damages with admissible expert testimony. But Plaintiffs have none. Plaintiffs did not designate any damages expert or provide any expert reports on damages in this case. (Separate Statement of Undisputed Facts ISO Trump University LLC’s Motion for Summary Judgment (“SOF) 1.) This undisputed evidentiary failure on a critical element of their claims is fatal to Plaintiffs’ case. Summary judgment must be granted in favor of Trump University.

In other words, this was the same issue raised in the class decertification order: Trump University argued that the damages in the case should be assessed by a “differential-in-value,” i.e. what the plaintiffs paid compared to what they received, but the plaintiffs hadn’t introduced any expert testimony on that issue. The plaintiffs countered that the damages should be assessed on the basis of a “full refund,” and earlier in the litigation Trump University admitted (as it had to) that there was no need for expert testimony to establish how much a full refund was worth.

Judge Curiel’s response at summary judgment was largely “I already ruled on that,” and he referenced his September 18, 2015 order regarding the class certification. There’s nothing unusual about that, as explained above.

Trump’s motion included a summary of his argument:

The Court certified the classes based solely on three alleged “core” misrepresentations. However when the allegations against Mr. Trump are analyzed against these misrepresentations, the flaws in Plaintiffs’ claims become clear. The inescapable result is that Mr. Trump’s Motion for Summary Judgment should be granted for at least five reasons: (1) Mr. Trump did not make the “core” misrepresentations; (2) Mr. Trump did not make the “core” misrepresentations to the class representatives; (3) the class representatives did not rely on the “core” misrepresentations from Mr. Trump; (4) there is no causal connection between Mr. Trump’s conduct and any alleged injury; and (5) the class representatives have no admissible evidence to support a claim for restitution or damages. These fatal flaws and Plaintiffs’ stark lack of admissible evidence on essential elements of their claims warrant summary judgment in Mr. Trump’s favor.

In other words, Trump argued that he was not personally involved in the alleged misrepresentations, and so the case against him personally should be dismissed.

This argument was a long shot at best. The Ninth Circuit, like every court, has held: “A corporate officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he participates . . . .” Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 734 (9th Cir. 1999). The plaintiffs responded:

Here, there can be no honest debate that Trump is personally liable for his part in the fraudulent scheme. As this Court observed in its class certification order, plaintiffs have pointed to a number of facts supporting personal liability, including: (1) Trump is the founder and Chairman and authorized the use of his name, photos, and quotes for seminar presentations; (2) TU’s print advertisements, email correspondence, letters, and TU website content prominently featured Trump’s quotes, image, logo, and signature; (3) Trump reviewed and authorized advertisements; (4) Trump provided financing and reviewed financials; and (5) Trump represented he hand-picked the TU instructors and mentors. Dkt. No. 298 at 5.

Judge Curiel agreed “that Plaintiffs have raised a genuine dispute of material fact as to whether the representation that students would be taught by real estate experts, professors and mentors ‘hand-picked’ by Mr. Trump was true.” He cited several examples why, including Trump’s own interrogatory responses admitting “most if not all speakers, instructors and mentors were selected by Trump University representatives,” which is a far cry from Trump having “hand-picked” the instructors. Judge Curiel also cited the testimony of four instructors who testified that they never met with Trump. (If you really want to get into the weeds here, see the plaintiffs’ response to Trump’s statement of facts.)

On May 6, 2016, Judge Curiel held a pre-trial conference, where he rejected the plaintiffs’ request to hold separate trials for equitable and legal claims, and rejected plaintiffs’ request to allow separate juries to decide entitlement and amount of punitive damages. [Edit: Some readers asked for the source of this. It’s not on the docket yet. This description of the pre-trial conference order comes from the second motion for decertification that Trump’s lawyers filed on June 3, 2016. A copy of that motion is linked above. I assume Trump’s lawyers have fairly represented what happened at the pre-trial conference; to do otherwise would be unethical and exceedingly stupid.]

The Orders Specific To Plaintiff Makaeff

On April 17, 2013, the Ninth Circuit decided the appeal of an order entered by Judge Curiel’s predecessor on the case. In short, after Makaeff sued Trump University, Trump University countersued Makaeff for defamation, Makaeff filed a motion to dismiss the countersuit under California’s “anti-SLAPP” law, and the court denied the motion. The Ninth Circuit unanimously reversed, holding that the trial court (i.e., the judge before Curiel) had improperly found Trump University to be a “private figure,” and that it was actually a “limited purpose public figure,” a holding that made it far more likely that Makaeff’s motion to dismiss would be granted. (In case you’re wondering, the panel included Judge Kozinski, a Reagan appointee who is one of the most prominent conservatives on the federal bench.) Trump University sought “en banc” review from the full Ninth Circuit, which denied it, sending the case back down to Judge Curiel.

On June 17, 2014, Judge Curiel granted Makaeff’s motion to strike Trump University’s defamation lawsuit. This was the same issue in which the Ninth Circuit had already reversed Judge Curiel’s predecessor, and the question before Judge Curiel was whether Trump University had a “reasonable probability of succeeding” in proving, by “clear and convincing evidence,” that Makaeff had acted with “actual malice” when she wrote a letter to her credit card company while seeking a refund of what she had paid to Trump University. That’s an awfully high bar to meet, and courts typically grant these sorts of motions, like Judge Curiel did. Judge Curiel also instructed Makaeff to file a bill of attorney’s fees and costs, as is required by California’s anti-SLAPP law.

On November 18, 2014, Judge Curiel ruled on Makaeff’s request for attorney’s fees and costs against Trump, finding that Makaeff hadn’t submitted enough detailed information to support the claim, and requesting more detail, as is supported by case law.

On December 16, 2014, Judge Curiel denied Trump University’s request to serve subpoenas on Makaeff’s lawyers for any records they had recording their time, in conjunction with the fee request from the anti-SLAPP motion. This sort of ruling is typical, and parties usually can’t dig into the files of the other side’s lawyers.

On April 9, 2015, Judge Curiel awarded Makaeff her “anti-SLAPP” fees and costs, as required by California law, awarding $790,093.40 in fees and $8,695.81. That’s about 60{9c067c25ed205f086ce6001901eb13dfadc688a7aefab9f64e0c55b8c5a55872} of the amount Makaeff requested. Feel free to read the 51 pages yourself and see if anything is unusual, to me it’s a typical fee award. Notably, when Makaeff subsequently filed her motion to withdraw, she said that the award still had not been paid.

On April 20, 2016, Judge Curiel granted plaintiff Makaeff’s request to withdraw as a named plaintiff, with two conditions attached: “(1) Defendants were entitled to depose Low again; and (2) appropriate fees and costs would be determined at a later juncture.” Makaeff’s motion said she had “been put through the wringer in this case,” that she had developed health problems, that she was grieving over the death of her mother and attending to family matters, and that the high-profile nature of the case was affecting her ability to get work.

Trump opposed her request, arguing that to allow withdrawal “would eviscerate much of what has transpired in this case and would cause irremediable prejudice to defendants. Makaeff is the critical witness in this case—Plaintiffs deliberately, systematically, and successfully relied on her in every material respect in litigating this case…” Trump’s lawyers argued that, had they known Makaeff was going to withdraw, they “would have focused greater discovery on Sonny Low, the other California class representative.” They generally said that Makaeff’s participation “as a live trial witness [was] essential to the trial strategy and defense Defendants have been developing for almost six years,” although they never explained exactly why Makaeff’s live testimony at trial was so critical.

The Ninth Circuit has set a low bar for when it allows a plaintiff to withdraw: a “district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). In terms of the class action, Makaeff’s participation was not necessary to the case. The whole idea of a class action is to have one person representing the interests of a group. By the time she filed to withdraw, there was already another named plaintiff who, like her, was from California, and thus could serve as a representative for the whole “class” from California.

Trump’s lawyers cited a bunch of cases where the court refused to allow substitution of plaintiffs in a class action, but Judge Curiel pointed out a big problem with those cases:

Defendants cite a number of cases to support the proposition that “[c]ourts have regularly denied substitution of class representatives where, as here, allowing substitution would prejudice defendants’ ability to prepare their defense.” Id. at 12. However, all of the cases Defendants cite involve district courts finding that permitting plaintiffs to amend their complaints in order to add new named plaintiffs unduly prejudiced defendants under Fed. R. Civ. P. Rules 15(a) and 16(b).

In each one of those cases, the new plaintiffs would have forced the defendants to conduct discovery of multiple new plaintiffs and, as Judge Curiel noted, “None of those concerns apply squarely here, where the issue is the removal of a named plaintiff.” As Judge Curiel noted, Makaeff’s key testimony was not critical to the remaining “core” representations still at issue in the class action. More to the point, Judge Curiel did what needed to be done to cure any potential prejudice to Trump and Trump University: they get more discovery into the other California plaintiff, they can use Makaeff’s prior testimony at trial, and they’ll get a chance to demand attorney’s fees and costs from her.

Summing Up

Judge Curiel is doing his job like a normal judge, issuing rulings consistent with the case law. But you already knew that.

SOURCE: Litigation & Trial Lawyer Blog – Read entire story here.

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