Cohen v. Trump
ORDER Granting in Part and Denying in Part Plaintiffs' 61 Motion for Approval of Class Notice and Directing Class Notice Procedures: The Proposed Class Notices are approved for dissemination of class notice. The parties are authorized to make non-substantive changes to the notice, as long as they are acceptable to both parties, to reflect deadlines, mailing addresses, and similar information or to format the notice for printing. Plaintiffs will submit an amended Return Postcard that is consistent with this Order within seven (7) days of the Order. Epiq Systems, Inc. is approved as "Notice Administrator" to supervise and carry out the notice procedure. The deadline for exclusion from the Class shall be forty-five (45) days after the Notice Date. The Notice Administrator is ordered to provide counsel for both parties with a list of all timely requests for exclusion within seven (7) business days after the Opt-Out Deadline. Plaintiffs are ordered to file such list with the Court within three (3) days thereafter. Signed by Judge Gonzalo P. Curiel on 9/21/15. (dlg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ART COHEN, Individually and on
Behalf of All Others Similarly
DONALD J. TRUMP,
CASE NO. 13-cv-2519-GPC-WVG
Related Case: 10-cv-0940-GPC-WVG
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR APPROVAL OF
CLASS NOTICE AND DIRECTING
CLASS NOTICE PROCEDURES
[ECF No. 61]
On February 20, 2015, Plaintiff Art Cohen filed a Motion for Approval of Class
19 Notice and Directing Class Notice Procedures. (ECF No. 61.) The motion has been
20 fully briefed. (ECF Nos. 68, 71.)
A hearing was held on May 22, 2015. Following careful consideration of the
22 parties’ oral arguments, legal briefings and applicable law, and for the reasons set forth
23 below, the Court hereby GRANTS IN PART AND DENIES IN PART Plaintiff’s
24 motion for approval of class notice and directing class notice procedures.
On October 27, 2014, this Court certified a nationwide class in this case. (ECF
27 No. 53.) The class consists of:
All persons who purchased Live Events from Trump University
throughout the United States from January 1, 2007 to the present.
Excluded from the Class are Trump University, its affiliates, employees,
officers and directors, persons or entities that distribute or sell Trump
University products or programs, the Judge(s) assigned to this case, and
the attorneys of record in the case.
(Id. at 22-23.) Defendant Donald Trump appealed this ruling to the Ninth Circuit,
which denied permission to appeal on February 2, 2015. (ECF No. 59.)
On February 21, 2014, this Court had previously certified a class of Trump
University, LLC (“TU”) students in the related case of Makaeff, et al. v. Trump Univ.,
LLC., et al., 10cv0940-GPC(WVG). (See 10cv0940-GPC(WVG), ECF No. 298.) On
March 10, 2014, Defendants TU and Donald Trump (“Defendants”) sought permission
to appeal the grant of certification to the Ninth Circuit. (10cv0940-GPC(WVG), ECF
No. 307.) On April 10, 2014, the Ninth Circuit denied permission to appeal the ruling
on timeliness grounds. (10cv0940-GPC(WVG), ECF No. 318). On February 19,
2015, Defendants moved to decertify. (10cv0940-GPC(WVG), ECF No. 380). On
September 18, 2015, this Court granted in part and denied in part Defendants’ motion.1
(10cv0940-GPC(WVG), ECF No. 418). The class consists of the following class and
All persons who purchased a Trump University three-day live
workshop and/or a “Elite” program (“Live Events”) in
California, New York and Florida, and have not received a full refund,
divided into the following five subclasses:
(1) a California UCL/CLRA/Misleading Advertisement subclass of
purchasers of the Trump University Fulfillment and Elite Seminars who
purchased the program in California within the applicable statute of
(2) a California Financial Elder Abuse subclass of purchasers of the
Trump University Fulfillment and Elite Seminars who were over the age
of 65 years of age when they purchased the program in California within
the applicable statute of limitations;
(3) a New York General Business Law § 349 subclass of purchasers of the
Trump University Fulfillment and Elite Seminars who purchased the
program in New York within the applicable statute of limitations;
(4) a Florida Deceptive and Unfair Trade Practices Act
(FDUTPA)/Misleading Advertising Law subclass of purchasers of the
Trump University Fulfillment and Elite Seminars who purchased the
program in Florida within the applicable statute of limitations; and
The Court denied Defendants’ motion to decertify on liability issues and granted the motion
28 on damages issues, bifurcating the damages issues to follow trial on the liability phase. (10cv0940GPC(WVG), ECF No. 418 at 2).
(5) a Florida Financial Elder Abuse subclass of purchasers of the Trump
University Fulfillment and Elite Seminars who were over the age of 6o
years of age when they purchased the program in Florida within the
applicable statute of limitations.
Excluded from the class are Defendants, their officers and directors,
families and legal representatives, heirs, successors, or assigns and any
entity in which Defendants have a controlling interest, any Judge assigned
to this case and their immediate families.
6 (Id. at 21.)
On February 20, 2015, Plaintiff in this case and Plaintiffs in the Makaeff case
8 filed motions in their respective cases seeking permission to serve a single class notice
9 to all putative class members in both cases. (ECF No. 61, 10cv0940-GPC(WVG), ECF
10 No. 381.)
For classes certified under Rule 23(b)(3) of the Federal Rules of Civil Procedure,
13 the court “must direct to class members the best notice that is practicable under the
14 circumstances, including individual notice to all members who can be identified
15 through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The Federal Rules further
16 provide that:
The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if
the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
26 Fed. R. Civ. P. 23(c)(i - vii). Notice provides an opportunity for class members to
27 participate in the litigation, to opt-out of the litigation, to monitor the performance of
28 class representatives and class counsel, and to ensure that predictions of adequate
1 representation are fulfilled. Manual For Complex Litigation (Fourth) § 21.13 (2004).
2 In the Rule 23(b)3 context, due process is satisfied “where a fully descriptive notice is
3 sent first-class mail to each class member, with an explanation of the right to ‘opt out,’”
4 within a reasonable time. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985).
The crux of the parties’ dispute regarding class notice is whether to send a single
8 joint notice that explains both the Cohen and Makaeff class actions or separate notices
9 for each set of class members.2 Plaintiffs contend that sending one notice is the least
10 confusing, most efficient, and most cost effective way to communicate with the class
11 members. (ECF No. 61-1 at 12.)3 First, Plaintiffs argue that the nearly 40% of all
12 putative class members of Cohen that are also putative class members in Makaeff
13 would otherwise “receive two separate, nearly-identical notices,” which might result
14 in recipients ignoring one or the other notice as a duplicate. (ECF No. 71 at 6).
15 Second, Plaintiffs assert that the class member data provided by Defendant “does not
16 indicate where each individual purchased a Trump University Live Event and thus does
17 not conclusively establish whether any particular Class Member belongs to one or both
18 Classes,” giving rise to the possible need for the Makaeff mailing to either also be
19 nationwide, or risk possible under-inclusiveness. (ECF No. 71 at 7-8). Third,
20 Plaintiffs argue that two separate notice plans would also require two separate notice
21 apparatuses, resulting in over $20,000 in additional costs. (Id. at 3).
Defendants counter that a joint notice would, in fact, invite confusion and is
23 inappropriate given that TU is not a defendant in both actions and the claims in the two
24 cases are distinct. (ECF No. 68 at 1.) First, Defendants argue that Plaintiffs’
25 contention that two separate notices would create confusion is mere “speculation,” and
Defendants do not object to the general process proposed by Plaintiffs for distributing class
27 notice, as long as that process is done separately for each case. (ECF No. 408 at 3.)
Page number citations such as this one are to the page numbers reflected on the Court’s
CM/ECF system and not to page numbers assigned by the parties.
1 that in fact, confusion is more likely to result if Cohen class members “received notice
2 of a class action in which they are not a class member.” (Id. at 5.) Second, Defendants
3 argue that sending separate notices is the best way to preserve the “individual identity”
4 of each case, given that there are different claims, class members, and defendants in
5 each. (Id. at 6.)
In the Rule 23(b)(3) context, “courts retain considerable discretion to tailor
7 notice to the relevant circumstances.” See Lee v. Enter. Leasing Co. W., 2014 WL
8 4801828, at *2 (D. Nev. Sept. 22, 2014) (citations omitted); see also Cohorst v. BRE
9 Properties, Inc., 2011 WL 7061923, at *6 (S.D. Cal. 2011) (noting that it is for the
10 court “to determine what amounts to reasonable efforts under the circumstances of each
11 case, the available information to the parties and possible methods of identification of
12 potential class members,” and that “[t]he hallmark of the notice inquiry . . . is
13 reasonableness”). Plaintiffs cite several cases where courts have approved joint notices
14 in varying contexts. Cf. Negrete v. Allianz Life Ins. Co. of N. Am., CV 05-6868 CAS,
15 ECF No. 167, slip op. (C.D. Cal. Feb. 7, 2007) (approving joint notice after certifying
16 a RICO nationwide class in two related cases and a California subclass in one of the
17 cases); In re FedEx Ground Package Sys., 2008 WL 927654 (N.D. Ind. Apr. 4, 2008)
18 (ordering joint notice to state-based class of state-based and national ERISA claims in
19 a single case). While neither case is squarely on all fours with the instant set of cases,
20 the Court finds that they provide support for the proposition that joint notices may be
21 approved where they are the most practicable vehicle for effecting notice upon the class
Here, the Court finds that Defendants’ separate motion proposal does not
24 substantially reduce the likelihood of confusion for recipient class members, and in fact
25 poses some possibility of increasing it. Plaintiffs’ proposed joint notice repeatedly
26 specifies which individuals are members of each class. (See ECF No. 71-1 at 3, 5, 7-8).
27 Moreover, Plaintiffs’ proposed joint notice would be largely identical if divided into
28 separate notices for each case, giving rise to the possibility that the Makaeff class
1 members might ignore or be confused by one or other of the notices. See In re FedEx
2 Ground Package Sys., 2008 WL 927654, at *3 (noting that “if absent class members
3 receive . . . two notices that are nearly identical, there is a strong possibility many
4 absent class members may ignore one notice or the other as a duplicate”).
Defendants cite to In re FedEx to support their contention that the “individual
6 identity” of each case must be preserved. (ECF No. 68 at 6). But the In re FedEx court
7 was referring to the attempts of Plaintiffs in that case to make reference in the notice
8 to other lawsuits in multi-district litigation, not to the joint notice of the state-based
9 claims and the national ERISA claims in the Rule 23(b)(3) motion, which the court
10 approved. See 2008 WL 927654, at *3-4. The In re FedEx court was concerned that
11 a notice referencing all pending MDL cases gave the appearance of some kind of giant,
12 super class action, which was misleading given that the Court had denied several
13 motions to certify class actions in several MDL cases. Those concerns are absent here
14 where there are two cases that are being handled by this Court and certification has
15 been granted on the issue of liability in both cases.
In addition, by alerting class members of the existence of both class actions in
17 one notice, the proposed notice increases the ability of class members to monitor both
18 cases to ensure that class counsel and class representatives are providing adequate
19 representation to the members of the classes.
For these reasons, the Court finds that the proposed notice provides an
21 opportunity for class members in both cases to participate in the litigation, to opt-out
22 of the litigation, to monitor the performance of class representatives and class counsel,
23 and to ensure that predictions of adequate representation are fulfilled. It does this with
24 reduced administrative burdens and costs that would be imposed upon Plaintiffs. The
25 Court GRANTS Plaintiffs’ motion to send a joint notice covering both cases and
26 orders Plaintiffs to serve a joint notice, pursuant to the terms set forth below.
Proposed Pre-paid Postcard
Defendants object to the proposed pre-paid postcard (“Return Postcard”)
2 Plaintiff seeks to include in all mailed notices. (ECF No. 68 at 6) (referencing the
3 proposed postcard attached as Exhibit 4 to the Declaration of Rachel L. Jensen, ECF
4 No. 61-2, Ex. 4.) Defendants argue that the Return Postcard improperly references the
5 class members’ current ages, as opposed to their ages when they purchased Trump
6 University Live Events. (Id. at 7). Plaintiffs do not object to this proposed modification.
7 (ECF No. 71 at 9).
As certified, the age of the class members at the time of purchase is the relevant
9 criteria under the California and Florida elder abuse laws. (10cv940, ECF No. 418).
10 Accordingly, the Court ORDERS the Plaintiffs to amend the Return Postcard to refer
11 to the ages of the class members at the time that they purchased Trump University Live
Proposed Pre-paid “Exclusion Request/Opt-Out” Postcard
Defendants contend that Plaintiffs’ notice must include “a pre-paid ‘Exclusion
15 Request/Opt-Out’ postcard” in order to eliminate a potential roadblock for individuals
16 who wish to exclude themselves. (ECF No. 68 at 7-8.) Contrary to Defendants’
17 assertion, pre-paid opt-out cards are far from “routine.” In fact, in one of the two cases
18 Defendants cited for this proposition, the court did not require enclosure of a pre-paid
19 envelope with the notice. Compare Tierno v. Rite Aid Corp., 2007 WL 4166028, at *2
20 (N.D. Cal. Nov. 19, 2007) (requiring inclusion of prepaid opt-out form with notice)
21 with Cruz v. Dollar Tree Stores, Inc., 2009 WL 1974404, at *2 (N.D. Cal. July 2, 2009)
22 (requiring opt-out form, but not pre-paid envelope), modified in part, 270 F.R.D. 499
23 (N.D. Cal. 2010). Rule 23 requires only that the class members receive notice that
24 explains in “plain, easily understood language . . . that the court will exclude from the
25 class any member who requests exclusion.” Fed. R. Civ. P. 23(c)(2)(B). As one court
FRCP 23(b)(3) does not explicitly require an opt-out form be included as
part of the notice. Reviewing the Advisory Committee Notes included
with FRCP 23(c)(2)(B), in 2003 the Committee referred to illustrative
clear-notice forms provided by the Federal Judicial Center. See
Fed.R.Civ.P. 23(c)(2)(B) advisory committee's note. The example notice
forms provided by the Federal Judicial Center merely includes language,
on the face of the notice, that a class member may decide to be excluded
from the class, and if they wish to do so, they may send a letter to a given
address. See http://www.fjc.gov/ (Class Action Notices Page). The notice
forms do not appear to contemplate the inclusion of an exclusion notice
form. Further, the Court finds that on balance, such a separate form will
“engender confusion” and may encourage class members to “unwittingly
opt out of the class.” Roberts v. Heim, 130 F.R.D. 416, 423
7 Krzesniak v. Cendant Corp., No. C 05-05156 MEJ, 2007 WL 4468678, at *3 (N.D. Cal.
8 Dec. 17, 2007). The Advisory Committee Notes also contain no discussion of
9 requiring pre-paid opt-out forms.
On balance, this Court finds that Plaintiffs are not required to include a pre-paid
11 opt-out card. The notice Plaintiffs propose to mail clearly explains that (1) if a class
12 member does not wish to be included in the class, he or she must take affirmative steps
13 in order to be excluded, (2) the class member must opt out in writing (Plaintiff provides
14 the address to be used for exclusion requests), (3) the written request must contain the
15 class member’s name, address, and signature, and (4) an exclusion request form is
16 available at www.trumpuniversitylitigation.com. (ECF No. 61-2, Ex. 2). This satisfies
17 Rule 23's requirement of setting forth the class members’ rights in clear language and
18 the option of downloading an exclusion request form from the website eliminates the
19 burden of drafting a letter. Moreover, as the Krzesniak court highlighted, an opt-out
20 card included with the notice could very well be construed by many class members as
21 an opt-in card, resulting in class members unwittingly excluding themselves from the
Defendants’ Request for Ten (10) Days Review of Class
Defendants request that the Court prescribe a ten (10) business day period from
26 receipt of the Class Notice Administrator (“Administrator”) of the compiled list of
27 names and addresses Plaintiffs are intending to use for class period, so as to ensure that
28 the Administrator’s list of potential class members is as complete and accurate as
1 possible. (ECF No. 68 at 7). Plaintiffs reply that this period is no longer necessary,
2 since the Administrator sent the compiled list to Defendants as of May 1, 2015. (ECF
3 No. 71 at 9. Since Defendants have had several months to review Plaintiffs’ compiled
4 list, the Court will not adjust the class notice schedule to prescribe an additional review
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN
8 PART Plaintiffs’ motion for approval of class notice and directing class notice
9 procedures (ECF No. 61). Accordingly, IT IS HEREBY ORDERED that:
The Proposed Class Notices (attached as ECF No. 71-1, Ex. A; ECF No.
61-2, Ex. 2, and ECF No. 61-2, Ex. 3) are approved for dissemination of
class notice. The parties are authorized to make non-substantive changes
to the notice, as long as they are acceptable to both parties, to reflect
deadlines, mailing addresses, and similar information or to format the
notice for printing.
Plaintiffs will submit an amended Return Postcard (attached as ECF No.
61-2, Ex. 4) that is consistent with this Order within seven (7) days of the
Epiq Systems, Inc. is approved as “Notice Administrator” to supervise and
carry out the notice procedure.
The Notice Administrator is directed to compile a list of names and
addresses of purchasers of “Trump University” programs as they appear
in defendants’ records, and Defendants are directed to cooperate in
ensuring the list of potential Class Members is as complete and accurate
The Notice Administrator is directed to establish and monitor a website
(www.trumpuniversitylitigation.com), making available copies of the
Long-Form Notice, this Court’s class certification orders, an address for
mailing requests for exclusion or providing contact or age information,
and other helpful information.
The Notice Administrator is directed to establish a toll-free telephone
number, (866) 841-7311, where Class Members may call for additional
The Notice Administrator is ordered to send through U.S. first-class mail,
within ten (10) days of the Order (the “Notice Date”), the Mailed Notice,
substantially in the form attached as ECF No. 61-2, Ex. 3, to each
purchaser identified on the list informing them of both class actions.
Among other things, the Mailed Notice shall provide a website, address
and phone number, information as to how Class Members can obtain a
Long-Form Notice, substantially in the form attached as ECF No. 71-1,
Ex. A, which includes: (i) more detail about the litigation and answers to
frequently-asked questions; (ii) an address for sending requests for
exclusion from one or both of the Classes; and (iii) information as to how
Class Members can update their information and senior citizens to
indicate they may be members of an elder financial abuse subclass.
Provided that the amended Return Postcard has been subsequently
approved by the Court, the Notice Administrator is authorized to include
it in the Mailed Notice.
The Notice Administrator is ordered to publish on one occasion in the
national edition of USA Today the Summary Notice, substantially in the
form attached as ECF No. 61-2, Ex. 3, not later than ten (10) days after
the Notice Date, which will give those who did not receive the notice by
mail an opportunity to request it and to protect any rights they may have.
The deadline for exclusion from the Class shall be forty-five (45) days
after the Notice Date (“Opt-Out Deadline”). Any Class Member who
does not send a completed, signed request for exclusion to the Notice
- 10 -
Administrator post-marked on or before the Opt-Out Deadline will be
deemed to be a Member of the Class for all purposes and bound by all
further orders and judgments of the Court. All opt outs shall not be so
bound, but also barred from sharing in any recovery.
The Notice Administrator is ordered to provide counsel for both parties
with a list of all timely requests for exclusion within seven (7) business
days after the Opt-Out Deadline. Plaintiffs are ordered to file such list
with the Court within three (3) days thereafter.
IT IS SO ORDERED.
11 DATED: September 21, 2015
HON. GONZALO P. CURIEL
United States District Judge
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