No bias evident in key Trump U rulings

Donald Trump’s attack on Gonzalo Curiel, the judge in the Trump U case, isn’t a legal argument or strategy. It’s venting, plus an attempt to go on the offensive regarding a political line of attack which almost certainly will be raised against him by Hillary Clinton.

Even so, I thought it would be worthwhile to see whether Judge Curiel’s key rulings in the case suggest bias against Trump. Because I spent a fair amount of my professional career seeking or (more often) opposing class certification, I decided to focus first on the judge’s Order granting class certification — that is, his decision to let the plaintiffs proceed collectively against Trump.

I conclude that the judge’s decision reflects no bias against Trump. Many, and maybe most, judges likely would have ruled as Judge Curiel did.

The Federal Rules of Civil Procedure set forth a multi-part test for determining when class certification is warranted. You can read about the factors in Judge Curiel’s order. In many cases, as in Trump’s, the issue tends to come down to whether “questions of law or fact common to class members predominate over any questions affecting only individual members,” so that a class action is “superior to other available methods for fairly and efficiently adjudicating the controversy.”

The plaintiff in this case argues, in essence, that Trump U falsely advertised what it offered enrollees. This claim gives rise to two major questions: (1) what did Trump U say in its advertising it would deliver and (2) did Trump U deliver this.

Both questions seem common to the class.

However, there’s a third question that is vital to the cause of action — the question of causation. Specifically, did class members rely on the allegedly false advertising? If so, then the advertising caused the allege injury. If not, then causation is not established.

On its face, causation — how the advertising affected the behavior of individuals — seems like a matter requiring a particularized inquiry for each class member. Thus, causation is the hook defendants opposing class certification often rely on.

Lawyers for the class representative typically try to address this problem by offering to prove causation through an overarching theory common to all class members. In an antitrust class action, that theory will be an economic one. We argued that, as a matter of economics, anti-competitive behavior x would cause economic injury y in some degree to a class of purchasers regardless of variables such as their size, the amount they purchased, etc.

In the Trump U case, as noted, the issue of causation comes down to the question of reliance. Reliance is behavior, and behavior can be idiosyncratic. In a case like this, it cannot be demonstrated through economic theory.

Instead, the lead plaintiff presented what Judge Curiel called a “common sense” or “logical explanation” theory of causation that does not rely on individual inquiries. In short, the theory is that people who paid for “Trump University” Live Events “would not have done so if informed they were getting neither Trump nor a university.”

The plaintiff stressed that the alleged misrepresentations of a “university” and of Donald Trump’s participation were prominently featured in all Trump University marketing materials, and that a “Playbook,” Powerpoint presentations, and scripts encouraged if not required Trump University representatives to continue these representations. The logical inference, he argued, is that customers are likely to rely on prominently marketed features of a product they purchase.

Judge Curiel did not decide whether this argument will successfully establish causation in the Trump U case. But he did find that it “provides a method for Plaintiff to establish proximate causation on a classwide basis without resort to individualized inquiries.”

I never litigated a class case where causation turned on reliance; nor have I researched cases in which the plaintiff attempted to prove causation based on the kind of inference offered here. However, Judge Curiel cites cases to support the view that causation can be established through this kind of inference. He also plausibly distinguishes the cases relied on by Trump’s lawyers. This discussion occurs at pages 12-16 of the Order.

Would every federal judge have found that questions common to class members predominate over individualized ones in this matter? I don’t think so. Judge Curiel appears to take a more expansive view of “predominance” in this context than some.

Thus, if I were a defense lawyer in the Trump U case, I would be unhappy with the class certification order. However, I would recognize (I hope) that the ruling falls well within the range of approaches judges take in these cases.

Nothing in Judge Curiel’s carefully written opinion suggests to me that he is biased against Trump.

Ken White at Popehat notes that Judge Curiel later decertified the class, in part:

Specifically, Judge Curiel ordered that (1) the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed (which defendants generally like because it keeps plaintiffs’ damages sob stories out of trial and keeps the jury from being prejudiced by big damages numbers or by evidence of how much money the defendants have); (2) rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get.

So Trump didn’t come away empty-handed with respect to class certification.

White also considers Judge Curiel’s denial of Trump’s motion for summary judgment, the decision with which Trump seems most upset. White finds the decision “pretty straightforward and well within the range of normal federal judicial decisions on summary judgment.”

I agree. Judge Curiel’s 44 page opinion appears well-reasoned and exhibits no bias.

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