Federal District Court Judge Gonzalo Curiel ruled today (Thursday) that trial in a certified class action challenging Trump University’s business practices as fraudulent, pending in federal court in San Diego, would begin promptly as scheduled on November 28, 2016. The trial lawyer for Mr. Trump and his putative “University,” Daniel Petrocelli, had brought a motion to delay the jury trial in Low v. Trump because of a scheduling conflict, as Mr. Petrocelli is counsel in another unrelated trial involving Sirius XM, starting November 15. See Judge Curiel’s short decision on the motion at link inside this reporting at www.nbcsandiego.com/...
Mr. Petrocelli’s motion argued that the scheduling of the Sirius XM trial would not give Mr. Petrocelli enough time to prepare for the trial in Low v. Trump.
A necessary pre-trial proceeding, hearings on competing jury instructions, had been set for November 18, and the Trump side’s same motion also argued that Mr. Petrocelli’s scheduled trial in the Sirius XM case conflicted with the jury instruction hearing as well.
Denying the motion, Judge Curiel stated that he had repeatedly accommodated the defendants’ schedule with postponements. He noted pointedly that Mr. Petrocelli had not made the Court aware of the conflict until August 26, 2016, despite that the trial date in Sirius XM had been set in January. In his order denying the postponement, Judge Curiel stated that “The ‘good cause’ standard primarily considers the diligence of the party seeking the amendment. . . . If the party seeking the modification is not diligent, the inquiry should end and the motion to modify [the schedule] should not be granted.”
Thus, at least implicitly, Judge Curiel found that the Trump team was not diligent and lacked candor in not disclosing the putative conflict sooner. He ruled that Mr. Petrocelli has ample time to prepare for trial in the Trump University fraud case.
Judge Curiel did modify the schedule for the jury instruction hearing by moving it up, not back — it will be held November 10, not November 18. Thus, Judge Curiel resolved the scheduling conflict, but not in the way Mr. Trump or Mr. Petrocelli had hoped.
Those are the facts. Here is my view.
The subtext of Mr. Petrocelli’s motion is if the trial were postponed, it could have been pushed beyond January 20, the day the new president, whoever he or she may be, is inaugurated. If Mr. Trump is elected, that would undoubtedly lead to motions to postpone trial until after his term in office. Now, win or lose, Donald Trump and Trump University will face a jury trial for civil fraud that will begin, and barring a meteor strike will almost certainly end, before the inauguration. It will be the most covered and most sensational civil trial in history. As I have written here before, the plaintiff’s law firm representing the class is within the top rank of the plaintiffs’ class action bar, and will cede absolutely nothing in firepower to Messrs. Trump and Petrocelli.
Most likely, the Trump defendants and Mr. Petrocelli withheld information about the scheduling of the Sirius XM trial for tactical reasons, and it appears that Judge Curiel so suspected. I also believe that the Trump side thinks that it needs more time to prepare Mr. Trump, who will be called as a witness, if not by his own side, then most likely by the plaintiff class.
Judge Curiel saw though all this, held his nose, and called “bullshit.”
Mr. Trump’s litigation style is to fight well into a lawsuit, often against outgunned lawyers on the other side, and then settle before trial. He may not be able do that in these two class action suits. In my very strong guess, the plaintiffs’ firm is not apt to settle this suit, as no case ever would be so much fun to try to a successful conclusion, and no civil case ever would bring more fame and public applause to a winning plaintiff class.
I also believe this will be a major distraction for Mr. Trump in the stretch run of the presidential campaign. I have written before (see www.dailykos.com/...) that he cares more about these two suits than he cares about winning the presidency.
There is another interesting aspect to watch. The Low v. Trump case involves a certified class of people in Florida, California, and New York, who paid fees to Trump University, and alleges many theories of recovery, primarily fraud. Another case that Judge Curiel presides over is Cohen v. Trump, involves a national class (not just three states) and with surgical precision alleges only one theory of recovery -- violations of the federal Racketeer Influenced and Corrupt Organizations Act, under which actual damages are tripled. If Trump suffers judgment in the first case tried, which looks like it will be Low, he will then be precluded from re-litigating, in the second trial, issues of law or fact that are actually decided in the first trial. For example, if it is actually determined in Low that various claims (e.g., that it was not a university, that calling it a university was fraudulent, or that Mr. Trump hand-picked the instructors) were false, then he would be precluded from re-litigating those issues in Cohen. Thus, the Cohen case appears much the more dangerous to Trump, but really the first tried is the more dangerous.
We will hear the name of the Honorable Gonzalo Curiel, U.S.D.J., again before the presidential campaign is over.