Most people probably think the Trump University lawsuit — in which students at the supposed “school” accused our now-president of fraud — is over. Donald Trump settled for $25 million in November, shortly after he was elected.
But it’s not over. One plaintiff, Sherri Simpson, wants to take Trump to trial, as she explained in a column for Vox recently.
“I understand why some folks simply want to settle, take a little money, and forget this ever happened,” Simpson wrote. “Scams like Trump U victimize the vulnerable, and they need to be stopped. ... This shouldn’t be swept under the rug with a settlement that doesn’t even require him to pay back what he took or admit guilt.”
Simpson has hired some prestigious Washington lawyers, including Deepak Gupta of Gupta Wessler, who was a litigator in the Obama administration and has argued cases before the Supreme Court, to pursue her case.
I asked Gupta some questions about the case recently over email. Why isn’t this over? What happens now? Could Trump really go to trial?
So this is one side of the story, the allegations against Trump. Our exchange is below, edited for clarity and length.
Remind people quickly what the Trump University case was about in the first place.
Trump University promised people an “Ivy League quality” education in real estate. Trump told prospective students that his “hand-picked” professors and personal “mentors” would teach them his secret techniques. The strategy was to bring people in for a free seminar and then sell them on mentorship programs for $35,000.
But as most people now know, it was all an elaborate scam. The instructors and mentors had never even met Trump. They had no “secrets” to share — in fact, many had no real estate experience to share at all. Many mentors, like Sherri’s, just disappeared. Sad!
The case was filed as a class action alleging fraud. It was before Judge Gonzalo Curiel, a federal judge in San Diego.
I think the last thing most people remember is a settlement that President Trump made in the case. What were the details of that settlement?
Just days after the election, Trump agreed to pay $25 million to settle the class action. Most people thought the story ended there.
But there was an important twist. Even though class members had previously been promised the right to opt out of any settlement, the deal was drafted to prevent class members from exercising that right.
Trump admitted no wrongdoing — and immediately tweeted that he would’ve won at trial.
Trump also tweeted that the deal represented a “small fraction of the potential award” at trial. He was right. The $25 million pales compared to the $170 million he’d incur if he lost a RICO trial for racketeering and fraud. And the court had already greenlighted the RICO claims for trial.
If the settlement stands, this means that our client Sherri Simpson and others like her who were defrauded by Trump could only get about one-seventh the value of their claims under this settlement. Plus, no public trial, no admission of wrongdoing, and no court order to prevent the same thing from happening again.
So why wasn't that the end of the story?
Because everyone (Trump, the lawyers, and the court) was in a big hurry to get the case settled after the election, they cut some corners. The main problem is that, as I mentioned earlier, they reneged on their promise to opt out or, in the words of the official notice, “to be excluded from any settlement.”
Sherri Simpson wants to take Trump to trial. She objected to the settlement in the trial court and is now continuing to fight for her right to opt out of settlement and go to trial.
What happened recently? What’s next?
I just joined Sherri’s legal team as her appellate lawyer. We filed our brief appealing the Trump University settlement to the US Court of Appeals for the Ninth Circuit.
Several top law professors who are experts in class actions and consumer protection have also filed friend-of-the-court briefs supporting the appeal.
What are the key legal questions that will determine the final ruling?
In a nutshell: The Ninth Circuit will have to decide if it’s okay, under the due process clause of the US Constitution and the federal class-action rules, to do what the settlement did here: promise people you’re going to let them opt out of any settlement and then later renege on that promise. That’s the main issue. We also argue that class members should be able to see the terms of any settlement before they have to give up their claims forever.
You told us earlier that Trump could end up going for trial for fraud. Is that right? What would have to happen for it to get to that point?
Yes, that’s right. Trump really could end up going to trial. We’re confident that the Ninth Circuit will rule that any deal like this must allow people like Sherri to opt out if they want.
So then what? Then Trump will have some decisions to make. Does he jettison the whole settlement and go into a big class-action trial facing $170 million in damages? Or does he stick with the deal for those members who want it, and let others join Sherri’s team or go their own way? That’s all up to him, but either way, a trial is a real possibility.
But seriously: I think most people would be skeptical that the president of the United States could end up going to trial. How likely is it really?
Well, most people may think that, but then most people would be wrong. This very issue was decided by the US Supreme Court in Clinton v. Jones. In a sexual harassment case involving President Clinton’s pre-presidential conduct, the Supreme Court held that there is no immunity from suit, and no basis to put off the trial just because the defendant is the president. And in fact, before this case settled, the judge and the lawyers (including Trump’s) all agreed the trial would go forward.
But I do agree people have failed to see this coming — most people wrote this case off when it settled right after the election — and there’s still a fair bit of uncertainty ahead.
Ultimately, this case will test our legal system’s commitment to a basic principle — that you have a right to a day in court and that right can’t be taken away without your consent. Sherri wants her day in court, so she can hold Trump accountable for ripping her off.