Federal District Court Judge Gonzalo Curiel has ruled that Donald J. Trump, founder of Trump University, must face civil trial for fraud and racketeering under the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). Trump had moved for summary judgment in a last-ditch effort to block a class-action trial scheduled to begin right after the national election.
Denying the motion, Judge Curiel ruled that there were genuine issues of material fact for trial as to whether Trump had personally committed fraud and racketeering. If Trump loses, he is liable for three times the damages suffered by the students who paid tuition. That is the bite of the RICO statute — triple damages. This could amount to many tens of millions of dollars.
In a much less important ruling, Judge Curiel denied the plaintiffs’ motion to make videotapes of Trump’s deposition public. The transcripts are already public, and have been for several weeks, having been made public by Judge Curiel in an earlier ruling. Judge Curiel ruled that while the public has an interest in watching his demeanor, it is not the usual practice to make videotapes public before trial, and the public already has the ability to read his words at the depositions.
Judge Curiel is presiding over two separate class-action lawsuits. In both cases, the court has certified the suit as a class action and has denied motions to dismiss. The first, Low v. Trump University, sues the institution — Trump University — as well as Trump personally — on many different theories of recovery, including misrepresentation, breach of contract, and taking advantage of seniors. The second, Cohen v. Trump, is a far more surgical in its approach — it sues Trump individually for fraud and racketeering under the federal RICO statute, and relies no other theory of recovery.
Judge Curiel ruled Tuesday afternoon that there were genuine issues of material fact for trial. He pointed to plaintiffs’ evidence of each of the following: that Trump had personally reviewed the fraudulent advertising and marketing materials; that holding the institution out as a “university” constituted fraud; that Trump had personally conducted the affairs of the putative university; that Trump had personally exercised substantial control over TU; that Trump did not personally select the instructors when he said in advertising that he did; and that Trump personally participated in a scheme to defraud. Now to be clear, Judge Curiel did not decide these issues of fact today, but he did decide that there is substantial evidence presented sufficient for the matter to proceed to trial.
Them’s the facts. Here’s my take. It is the Cohen suit that has caused Trump to flip his not inconsiderable wig . Trump probably cares more about the Cohen suit more than he cares about the election because it has the potential of wiping him out, at least of his cash. If, for example, all of the members of the Cohen class paid $50 million in tuition (I am making up that number by way of illustration), then Trump potentially has to fork over $150 million plus pre-judgment interest. A Trump loss — racketeering and fraud — would also be devastating to the Trump brand. This is going to be a major distraction for him in the campaign’s final months, and may already be a reason he is acting out.
In cases like this, generally if a defendant loses at the class certification stage (Trump lost this some time ago) and loses his motion to dismiss (ditto, this happened some time ago), plaintiffs are really in business and defendants are in deep water (I cleaned that up). But a loss at the later summary judgment stage is yet more devastating to a defendant, because a summary judgment motion brought by defendants is evidence-based and tests the sufficiency of not only the plaintiffs’ class’s theories but of its evidence. That is where Donald Trump stands as of tonight.
And, dear fellow Kossacks, do not worry about legal firepower. The law firm representing the Cohen class is within the top rank in firepower and resources in the commercial class action field.
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