Case 3:13-cv-02519-GPC-WVG Document 247 Filed 06/17/16 Page 1 of 12

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DANIEL M. PETROCELLI (S.B. #97802)

dpetrocelli@omm.com
DAVID L. KIRMAN (S.B. #235175)
dkirman@omm.com
OMELVENY & MYERS LLP
1999 Avenue of the Stars
Los Angeles, California 90067-6035
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
JILL A. MARTIN (S.B. #245626)
jmartin@trumpmational.com
TRUMP NATIONAL GOLF CLUB
One Trump National Drive
Rancho Palos Verdes, CA 90275
Telephone: (310) 202-3225
Facsimile: (310) 265-5522

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Attorneys for Defendant

DONALD J. TRUMP
UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ART COHEN, Individually and

on Behalf of All Others Similarly
Situated,
Plaintiffs,

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v.
DONALD J. TRUMP,
Defendant.

Case No. 13-CV-2519-GPC(WVG)

CLASS ACTION
DEFENDANT DONALD J.
TRUMPS REPLY IN SUPPORT
OF MOTION FOR
DECERTIFICATION
Hearing: July 22, 2016
Time: 1:30 p.m.
Courtroom: 2d
Judge: Hon. Gonzalo P. Curiel

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DEF.S REPLY ISO DEF.S MOT.
FOR DECERTIFICATION
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I.

INTRODUCTION
Unable to address the many individualized factual issues that now

predominate and require decertificationstatute of limitations, reliance, causation,

and damagesPlaintiffs opposition relies on misstatements of the law and record.

The frailty of Plaintiffs arguments, however, only highlights the many reasons this

case should be decertified. Decertification is required because: (1) TU operated

from 2007 until June 2010, but Plaintiffs inexcusable three-year delay in filing this

case created statute-of-limitations issues; (2) recent discovery established that

students reliance on the alleged misrepresentations varied, making any common

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sense inference of reliance improper; and (3) as previously recognized by the

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Court in Low, Defendant has a Constitutional right in this case to litigate damages

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offset for each class member.

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Contrary to Plaintiffs claims:

binding Ninth Circuit authority states that the burden remains on Plaintiff to
prove certification;
a motion to decertify does not depend on new law or facts, and courts have a
continuing obligation to review the appropriateness of certification;
the Court should not rewrite the Federal Rules of Evidence to exclude opt-out
student testimony based on an out-of-context citation to a 20-year-old Florida
district court case;
the Court should not toll the statute of limitations based on an interpretation
of a Supreme Court case that has been rejected by the Ninth Circuit; and
the civil RICO allegation in this case does not provide a basis for the Court to
deprive Defendant of his Constitutional right to assert individualized
damages defenses.
Plaintiff is also incorrect in contending that Defendantand the Courtare
foreclosed from revisiting the common sense inference and statute-of-limitations
issues. Significant new evidence and evidence not previously considered by the
Court on both of these issues require the Court to revisit these issues and grant
Defendants motion.
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DEF.S REPLY ISO DEF.S MOT.

FOR DECERTIFICATION
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II.

LEGAL STANDARD
As a threshold matter, Plaintiff misstates the legal standard on decertification.

Oppn at 24. The Ninth Circuit has made clear that, on a motion for

decertification, the burden remains on the plaintiff to demonstrate that the

requirements of Rules 23(a) and (b) are met. Marlo v. United Parcel Serv., Inc.,

639 F.3d 942, 947 (9th Cir. 2011). Pre-Marlo, courts had held that a party seeking

decertification of a class should bear the burden of demonstrating that the elements

of Rule 23 have not been established. Given the Ninth Circuits unequivocal

holding in Marlo, however, . . . to the extent courts have found that on a motion to

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decertify, it is the defendants burden to demonstrate that the elements of Rule 23

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have not been established, these cases are no longer good law. Parra v. Bashas,

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Inc., 291 F.R.D. 360, 400 n.46 (D. Ariz. 2013); accord Lindell v. Synthes U.S.,

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2016 U.S. Dist. LEXIS 1949, at *14 (E.D. Cal. Jan. 6, 2016); Hahn v. Massage

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Envy Franchising, LLC, 2014 U.S. Dist. LEXIS 147899, at *51 (S.D. Cal. Sept. 25,

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2014).1 Further, despite Plaintiffs contention that decertification is only warranted

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following a significant intervening event, Oppn at 3, the law is clear that a

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motion to decertify a class . . . does not depend on a showing of new law, new facts,

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or procedural developments, NEI Contracting & Engg, Inc. v. Hanson

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Aggregates, Inc., 2016 WL 2610107, at *5 (S.D. Cal. May 6, 2016).

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III.

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TU STUDENT TESTIMONY IS RELEVANT AND ADMISSIBLE

Only 14 former TU students have been deposed between this case and the

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related Low case. In his opposition, Plaintiff seeks to exclude the testimony of five

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of these witnessesPaul Canup, Marla Rains Colic, Michelle Gunn, Meena

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Mohan, and Mette Nielsenbecause their testimony is unfavorable. There is no

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basis for excluding their testimony.

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Plaintiff first argues the testimony of these former TU students is not relevant
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All citations, quotation marks, and modifications omitted. All references to Ex.
refer to exhibits to the Declaration of David L. Kirman (Dkt. 192-2).
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FOR DECERTIFICATION
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because these students either have opted out of the class, intend to opt out of the

class, or somehow were never even members of the class. Oppn at 78. Only

Mohan and Gunn officially opted out of the class. Dkts. 154, 16566. Should

Colic and Nielsen seek to exercise their opt-out rights after the November 16, 2015

opt-out deadline, the Court would need to determine both whether their deposition

testimony suffices to demonstrate manifest intent to be excluded from the class and

whether their failure to previously opt out was due to excusable neglect.2 And

Plaintiff does not cite any evidence that Canup has also indicated that he wishes to

opt out of the Class. Oppn at 8 n.3. Nor does Plaintiff cite any support for his

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curious assertion that Gunn was never a class member. Id. at 8. In fact, Plaintiff

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filed a joint motion specifically requesting that the Court allow absent class

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member Michelle Gunn to opt-out of the class. Dkt. 165 at 2 (emphasis added).

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More fundamentally, Plaintiff provides no support for his position that the

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testimony of opt-out students is irrelevant. Plaintiff merely asserts such witnesses

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are removed from the litigation entirely. Oppn at 7. But percipient witnesses

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need not be members of the class to testify in a class action, just as witnesses in any

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case need not be parties for their testimony to be relevant and admissible. See Fed.

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R. Evid. 401, 602. That class members who have opted out of a class lack standing

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to object to a settlementwhich is all that Plaintiffs authority supportsis

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immaterial to whether they have relevant testimony.3 As with ordinary witnesses,

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See In re Cathode Ray Tube (CRT) Antitrust Litig., 2014 WL 4181732, at *45
(N.D. Cal. Aug. 20, 2014); In re Static Random Access Memory (SRAM) Antitrust
Litig., 2009 WL 2447802, at *2 (N.D. Cal. Aug. 7, 2009); Newberg 9:46.
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The only case Plaintiff cites for the proposition that the Court should preclude optout testimony is a 20-year-old Florida district court case discussing admissibility of
opt-out testimony at trial, not on a motion for decertification. See Waters v. Intl
Precious Metals Corp., 172 F.R.D. 479, 489 (S.D. Fla. 1996). The court in Waters
found that defendants were entitled to rebut the presumption of reliance on an
individual basis, but that the action would proceed as a class action on the
common issues, i.e., all issues except reliance, and subsequent to the jurys verdict,
the Court will confer with the parties to develop an appropriate, manageable and
lawful procedure to allow the Defendants to present proof of non-reliance on an
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FOR DECERTIFICATION
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the testimony of former TU students is admissible if it complies with the Federal

Rules of Evidence.4

IV.

NO COMMON SENSE INFERENCE OF RELIANCE APPLIES

Plaintiff misses the point in arguing that a common sense inference of

reliance is still appropriate. Quoting from the Courts certification order, Plaintiff

argues that the Court has already considered and rejected this argument by

distinguishing the two cases discussed in Defendants motionPoulos v. Caesars

World, Inc., 379 F.3d 654 (9th Cir. 2004), and In re Countrywide Fin. Corp. Mortg.

Mktg. & Sales Practices Litig., 277 F.R.D. 586 (S.D. Cal. 2011)each of which

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held that a common sense inference does not apply where there is more than one

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logical explanation for participation in the conduct at issue. Yet Defendant is not

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arguing that this is new law, but rather that there are new facts that render these

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cases indistinguishable and an inference of reliance unworkable.5

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Poulos and Countrywide make clear that the Court cannot apply a common

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sense inference of reliance if Defendant presents evidence that at least some class

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members knew of the alleged misrepresentations yet chose to enroll in TU anyway.

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Countrywide, 277 F.R.D. at 605 (emphasis added). Indeed, in granting

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certification, the Court only found a common sense inference appropriate because

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Defendant had by that point failed to demonstrate that it may be inferred that

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individual basis. Id. at 487 (emphasis added); accord McPhail v. First Command
Fin. Planning, Inc., 251 F.R.D. 514, 520 (S.D. Cal. 2008) (distinguishing Waters).
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Plaintiffs other arguments as to why the testimony of these witnesses should be
excluded are similarly meritless. For example, Plaintiffs unwarranted personal
attacks on these witnessesasserting that Colic was committed to a psych[]
ward and implicitly accusing Gunn of lying under oath because she appears to be
a professional testimonial-giver, Oppn at 8constitute no basis to exclude their
testimony. Plaintiffs argument concerning the statistical significance of individual
students and their aberrant views is equally applicable to Plaintiffs witnesses.
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Plaintiffs assertion that the common sense inference of reliance can only be
rebutted by evidence that can be properly generalized to the class as a whole is
immaterial. Defendant is not rebutting the class-wide inference of reliance but
rather demonstrating that Plaintiff is not entitled to the inference at all.
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FOR DECERTIFICATION
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putative class members had knowledge of the alleged misrepresentations yet chose,

for other reasons, to purchase Trump University Live Events. Dkt. 53 at 14.

From the depositions of eight former TU students that have been conducted

since the Court granted certification, there is now abundant evidence that many

and certainly at least someclass members had knowledge of the alleged

misrepresentations but chose, for other reasons, to enroll in TU anyway:

Many students testified that they did not believe TU was an accredited
university when they enrolled. See Ex. 19 at 105:6106:12 (You have to
be pretty thick-skulled to think it was a university. For goodness sa[k]es.
I mean, a university is a four-year degree. I knew it was a business
seminar.); Ex. 10 at 42:323; Ex. 6 at 96:2197:16; Ex. 20 at 62:1214;
Ex. 21 at 95:2125; Ex. 22 at 141:2025.

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Students also testified that they did not expect Mr. Trump to be
integrally involved. See Ex. 19 at 107:8108:14; Ex. 20 at 68:1725,
110:1118, 162:20163:2; Ex. 6 at 33:1619, 43:212, 99:521, 100:8
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These same students and others testified that they chose to enroll in TU for other

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reasons than the alleged misrepresentations, including: (1) students were attracted

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to the Trump Brand;6 (2) students wanted to gain real estate knowledge; (3) TU

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offered the opportunity to network with other real estate investors; (4) TU appeared

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to be of a higher quality than similar programs; (5) students wanted to learn subject

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matter referenced at a Preview event; (6) students believed that real estate was a

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dangerous market to enter without sufficient knowledge; and (7) students wanted

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to use real estate investment to generate income. Mot. at 1820. That at least

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Plaintiffs opposition attempts to conflate references to the Trump Brand with

references to Defendants personal involvement in the program. Oppn at 1213.
In doing so, Plaintiff misleadingly (and inaccurately) suggests that the Court
already considered and rejected this argument. Id. at 12 (citing Dkt. 45 at 18; Dkt.
53). But this distinction is meaningfulit is the difference between expecting TU
to be a good program because Mr. Trump is involved in the program (which
Plaintiff argues is an expectation common to all class members) and expecting that
TU will be a good program because the businesses Mr. Trump endorses with his
brand name are known for being of high quality (which is not at issue in this
litigation). Many class members enrolled in TU for the latter reason, which
prohibits application of a common sense inference of reliance.
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FOR DECERTIFICATION
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some class memberslet alone nearly half of the students who have been

deposedenrolled in TU for other reasons despite their knowledge of the alleged

misrepresentations is sufficient to prevent application of an inference of reliance.

Countrywide, 277 F.R.D. at 605; Dkt. 53 at 14.

Plaintiff argues that Defendant has no evidence that any class members

motivation was antagonistic to the prominent marketing themes at issuethat

Defendant cannot point to anyone who enrolled despite [Defendants] involvement

or the university moniker. But Poulos and Countrywide do not require that class

members motivations be antagonistic to the misrepresentations, or that the class

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members purchased the products at issue despite what the representations promised;

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these cases hold that the common sense inference of reliance is not appropriate

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when class members chose to purchase the products despite their knowledge of the

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falsity of the representations. As discussed above, there is ample evidence in the

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record now that many students enrolled in TU despite believing that TU was not an

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actual university and that Mr. Trump would not be integrally involved.7

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V.

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A.

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STATUTE-OF-LIMITATIONS ISSUES REQUIRE

DECERTIFICATION
Individual Issues About the Statute of Limitations Predominate

Plaintiffs opposition argues that statute-of-limitations issues do not warrant

decertification on the bases that the Court has already considered this argument at
the class certification stage, that certification may still be appropriate in spite of
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Plaintiff misstates the scope of the Courts certification ruling to include an

omission regarding the legitimacy of TU. Oppn at 14, 18, 20. The Court did
not certify any omissions, and Plaintiffs attempt to expand the scope of the
Courts certification at this stage must be rejected. Also without merit are
Plaintiffs attempts to undermine the evidence demonstrating individualized issues
related to causation and reliance. For example, although Plaintiff asserts that Sonny
Low did not see the Main Promotional Video . . . because he arrived late to the
Preview, not because it was not played, the evidence he cites for this assertion
Jensen Decl. Ex. 11 at 31:518says nothing about the video or about Low being
late to the Preview he attended. Further, this type of individualized evidence only
proves the many individualized issues associated with this case.
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FOR DECERTIFICATION
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statute-of-limitations issues, and that the facts here do not present the rare

scenario when individual SOL issues can defeat certification. Oppn at 20

(emphasis in original). These contentions are incorrect.

First, statute-of-limitations issues must be considered in the class certification

analysis because they suggest[] highly individualized damages questions, which

would make classwide adjudication problematic. Iorio v. Allianz Life Ins. Co. of

N. Am., 2008 U.S. Dist. LEXIS 118344, at *97 (S.D. Cal. July 8, 2008); accord In

re N. Dist. of Cal., Dalkon Shield IUD Prods. Liability Litig., 693 F.2d 847, 853

(9th Cir. 1982).

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Second, it is proper to decertify a class when case developments or evidence

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collected during discovery demonstrates that individual issues related to the statute

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of limitations predominate over any common questions. See OConnor v. Boeing

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N. Am., Inc., 197 F.R.D. 404, 413 (C.D. Cal. 2000).

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Third, there is now ample evidence in the record that many TU students

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believedprior to October 18, 2009 (the statute-of-limitations cutoff date)that

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TU was not an actual university and that Mr. Trump would not be integrally

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involved in TU.8 Much of this evidence establishes direct knowledge about the

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alleged misrepresentations by former TU students prior to October 18, 2009,

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including declarations, Ex. 29 3, 5, testimony, e.g., Ex. 6 at 96:2197:16; Ex.

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19 at 107:8108:14, and online reviews and complaints, Ex. 28 66. Defendant

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has compiled all this direct evidence of knowledge despite only being able to

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conduct discovery on a small number of former TU students (less than 1%). There

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are undoubtedly many more students who held similar understandings about the

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Moreover, knowledge of either alleged misrepresentation is sufficient to establish

notice. See Kaplan v. Kahn, 1995 WL 20571, at *4 (N.D. Cal. Jan. 17, 1995).
Plaintiff tries to confuse the Court by arguing that no student knew [that TU] was
an illegal enterprise then, apparently referring to TUs ongoing matter with the
New York Attorney General (NYAG). Oppn at 1617. The NYAG matter is
not relevant to the two misrepresentations certified by this Court and is therefore
immaterial to the statute-of-limitations analysis before the Court. See Dkt. 53 at 7.
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alleged misrepresentations prior to October 18, 2009.

There is also an abundance of circumstantial evidence indicating that many

TU students believed, at the time they were attending TU courses (often prior to

October 2009), that TU was not an actual university and that Mr. Trump was not

integrally involved in TU. For example, most TU students already had a college

degree, Ex. 1 at TU 145238; many were familiar with other non-academic business

seminars like TU, Ex. 38 at 59:1560:18; Ex. 10 at 32:24; students were told

different things about the alleged misrepresentations, Ex. 26 at TU 97258; students

were exposed to TU materials making it clear that TU was not an academic

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university, Ex. 18 at TU 175350; and there were endless complaints nationwide

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about the facts underlying Plaintiffs RICO claim, Ex. 27 37, Ex. 28 66.

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As this wealth of evidence makes clear, determining whether any individual

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class member had knowledge of the basis for Plaintiffs RICO claim before October

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18, 2009 requires significant individualized inquiry. As a result, [b]ased on the

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individualized, fact-intensive nature of the necessary inquiry in this case, the statute

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of limitations issues preclude a finding that common issues predominate over

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individual issues. OConnor, 197 F.R.D. at 414.

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B.

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Plaintiff also argues that no class members claims are barred by the statute

American Pipe Tolling Does Not Apply

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of limitations because they were all tolled by the filing of the Low action under the

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doctrine of American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). This

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argument is contrary to binding Ninth Circuit law that Plaintiff fails to bring to this

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Courts attention.9 See Williams v. Boeing Co., 517 F.3d 1120, 113536 (9th Cir.

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2008). Plaintiff relies on the Ninth Circuits 1985 case Tosti v. Los Angeles, 754

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F.2d 1485, 1489 (9th Cir. 1985), which held that an individual suit [need not] be

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identical in every respect to the class suit for the statute to be tolled. Tosti is no

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See also Low Dkt. 482-2 at 2223 (Low Plaintiffswho have the same
attorneysfailed to raise binding Ninth Circuit authority to the Courts attention).
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longer good law. In 2008, in the Williams case, the Ninth Circuit was again

confronted with the issue of whether American Pipe tolling could apply to non-

identical claims. 517 F.3d at 113536. After acknowledging that [t]olling is fair

[when] defendants have notice of the substantive claims being brought against

them, the court made clear that the tolling rule does not leave a plaintiff free to

raise different or peripheral claims following denial of class status. Id. at 1136

(emphasis added). The court then rejected plaintiffs argument that their

compensation discrimination claims were tolled under American Pipe by the filing

of a class action complaint alleging promotion discrimination, hostile work

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environment, and retaliation claims because neither the Original nor the First

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Amended Complaints stated a claim for compensation discrimination. Id.10

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Following Williams, courts in the Ninth Circuit have declined to interpret

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American Pipe as allowing tolling for claims that were not asserted in the class

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action, and any cases suggesting otherwise conflict with the Ninth Circuits view

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on the issue, as explained in Williams. In re TFT-LCD (Flat Panel) Antitrust

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Litig., 2013 WL 254873, at *2 (N.D. Cal. Jan. 23, 2013); accord In re Cathode Ray

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Tube (CRT) Antitrust Litig., 27 F. Supp. 3d 1015, 102021 (N.D. Cal. 2014).11 And

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because no class member asserted a civil RICO claimthe sole claim at issue

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herein the pending Low matter, the filing of the Low class action cannot serve to

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The Ninth Circuit also rejected this ruling from Tosti in an unpublished decision
in 2005. See Card v. Duker, 122 F. Appx 347, 349 (9th Cir. 2005) (The Supreme
Court has . . . not extended tolling due to class litigation beyond American Pipes
narrow allowance for identical causes of action brought where the class was
decertified. This court in Tosti v. City of Los Angeles, 754 F.2d 1485, 1487 (9th
Cir. 1985), apparently expanded American Pipe to apply where the class was not
decertified but the plaintiff opted out. . . . American Pipes narrow holding does
not require tolling under these circumstances.); see also Wells v. FedEx Ground
Package Sys., Inc., 2011 WL 1769665, at *6 (E.D. Mo. May 9, 2011) (noting that
Card severely limited, if not rejected, Tostis holding).
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See also Zarecor v. Morgan Keegan & Co., 801 F.3d 882, 888 (8th Cir. 2015);
Scott v. Ill. Bell Tel. Co., 2016 WL 910507, at *56 (N.D. Ill. Mar. 10, 2016);
Vertrue Mktg. & Sales Practices Litig., 712 F. Supp. 2d 703, 71819 (N.D. Ohio
2010).
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toll the statute of limitations under American Pipe. See Derry v. Jackson Natl Life

Ins. Co., 2012 WL 1997234, at *2 (N.D. Cal. June 4, 2012).

VI.

DAMAGES MUST BE DECERTIFIED

Plaintiffs sole argument against decertifying damages is that Cohen, unlike

Low, involves a civil RICO claim. But the statute under which Plaintiff seeks relief

is immaterial to Defendants Constitutional due process rights regarding offset,

which have already been recognized by the Court. Low Dkt. 418 at 18.12

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Moreover, in opposing decertification of damages, Plaintiff relies on the

Courts finding prior to expert witness discovery that Plaintiffs damages model

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matches Plaintiffs theory of liability. Oppn at 22 (quoting Dkt. 53 at 21). Since

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that holding, however, Plaintiff has clarified that his damages theory depends on

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proving that TU live events were valueless because TU fell short of providing

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students with any quality of instruction compared to top-tier real estate higher

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education institutions. Dkt. 188-5 at 42 (Plaintiffs damages expert report). This

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theory is inconsistent with the theory of liability that the Court certifiedthat TU

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events were valueless because Mr. Trump was not integrally involved and

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because TU was not an actual university. Dkt. 53 at 7. Plaintiffs theory of

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liability is thus no longer consistent with his theory of damages, in violation of

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Comcast. This provides an additional basis for decertification.

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VII. CONCLUSION

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For the foregoing reasons, Defendant respectfully requests that the Court
grant his motion for decertification in its entirety.

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Because of the many individualized inquiries regarding the statute of limitations

and causation in addition to damages issues, bifurcation is insufficient to protect
Defendants Constitutional rights; this case must be decertified in its entirety. See
Goodman v. Platinum Condo. Dev., 2011 U.S. Dist. LEXIS 99628, at *1821 (D.
Nev. Sept. 1, 2011); W. States Wholesale v. Synthetic Indus., 206 F.R.D. 271, 280
(C.D. Cal. 2002); LaBauve v. Olin Corp., 231 F.R.D. 632, 678 (S.D. Ala. 2005).
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Dated: June 17, 2016

Respectfully submitted,
OMELVENY & MYERS LLP
DANIEL M. PETROCELLI
DAVID L. KIRMAN
By:

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/s/ Daniel M. Petrocelli

Daniel M. Petrocelli

Attorneys for Defendant

DONALD J. TRUMP
E-mail: dpetrocelli@omm.com

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DEF.S REPLY ISO DEF.S MOT.

FOR DECERTIFICATION
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