Sonny Low; J. R. Everett; John Brown, on Behalf of Themselves and All Others Similarly Situated; Art Cohen, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees,
Trump University, LLC, AKA Trump Entrepreneur Initiative, a New York limited liability company; Donald J. Trump, Defendants-Appellees. Sherri B. Simpson, Objector-Appellant,
and Submitted November 15, 2017 Pasadena, California
from the United States District Court for the Southern
District of California D.C. Nos. 3:10-cv-00940-GPC-WVG,
3:13-cv-02519-GPC-WVG Gonzalo P. Curiel, District Judge,
Gupta (argued) and Jonathan E. Taylor, Gupta Wessler PLLC,
Washington, D.C.; Gary B. Friedman, New York, New York;
Edward S. Zusman and Kevin K. Eng, Markun Zusman Freniere
& Compton LLP, San Francisco, California; for
Francis Hubacheck (argued), Daniel J. Pfefferbaum, Rachel L.
Jensen, Jason A. Forge, and Patrick J. Coughlin, Robbins
Geller Rudman & Dowd LLP, San Diego, California; Amber L.
Eck, Haeggquist & Eck LLP, San Diego, California; for
M. Petrocelli and David L. Kirman, O'Melveny & Myers
LLP, Los Angeles, California, for Defendants-Appellees.
Gregory A. Beck, Washington, D.C.; Christopher L. Peterson,
S.J. Quinney College of Law, University of Utah, Salt Lake
City, Utah; for Amici Curiae Plain-Language Notice Experts,
The National Association of Consumer Advocates, and
Professors of Consumer Law.
Elizabeth Rogers Brannen and Peter K. Stris, Stris &
Maher LLP, Los Angeles, California; Jay Tidmarsh and Judge
James J. Clynes Jr., Professor of Law, Notre Dame Law School,
Notre Dame, Indiana; for Amici Curiae Civil Procedure
T. Schneiderman, Attorney General; Steven C. Wu, Deputy
Solicitor General of Counsel; Barbara D. Underwood, Solicitor
General; Office of the Attorney General, New York, New York;
for Amicus Curiae State of New York.
T. Jasnoch, Scott & Scott LLP, San Diego, California; for
Amici Curiae Claims Administrators.
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit
Judges, and Steven Paul Logan, [*] District Judge.
/ Class Settlement
panel affirmed the district court's order approving a
class settlement between students and Trump University over
Sherri Simpson's objections, and rejecting Simpson's
request to opt out.
objector, Sherri Simpson, sought to opt out of the class and
bring her claims in a separate lawsuit, which would derail
panel held that Simpson had Article III standing because she
claimed that the settlement's approval improperly denied
her a second, settlement-stage opportunity to remove herself
from the class, and therefore, Simpson had an interest in the
settlement that created a case or controversy.
panel rejected Simpson's argument that the class notice
language provided a second opt-out right at the settlement
stage, in addition to one at the class certification stage.
The panel also rejected Simpson's argument that even if
the class notice did not give her a second opt-out right at
the settlement stage, due process required such an
opportunity. The panel held that due process required only
that class members be given a single opportunity to opt out
of a Fed.R.Civ.P. 23(b)(3) class.
panel held that the district court did not abuse its
discretion in approving the settlement.
NGUYEN, CIRCUIT JUDGE
University, now defunct, was a for-profit entity that
purported to teach Donald J. Trump's "secrets of
success" in the real estate industry. During the 2016
presidential election, Trump University and Trump were
defendants in three lawsuits alleging fraud and violations of
various state and federal laws: two class actions in the
Southern District of California, and a suit by the New York
Attorney General in state court. Each suit alleged that Trump
University used false advertising to lure prospective
students to free investor workshops at which they were sold
expensive three-day educational seminars. At these seminars,
instead of receiving the promised training, attendees were
aggressively encouraged to invest tens of thousands of
dollars more in a so-called mentorship program that included
resources, real estate guidance, and a host of other
benefits, none of which ever materialized.
California cases, the district court certified two classes of
over eight thousand disappointed "students, " and
scheduled the cases for trial in late November 2016. On
November 8, 2016, Trump was elected President of the United
States. Within weeks, the parties reached a global settlement
on terms highly favorable to class members. Plaintiffs would
receive between 80 to 90 percent of what they paid for Trump
University programs, totaling $21 million. The defendants
agreed to pay an additional $4 million in the case brought by
the Attorney General of New York.
appeal involves a lone objector, Sherri Simpson, who seeks to
opt out of the class and bring her claims in a separate
lawsuit, which would derail the settlement. Simpson does not
dispute that she received, at the class certification stage,
a court-approved notice of her right to exclude herself from
the class and chose not to do so by the deadline. She argues,
however, that the class notice promised her a second
opportunity to opt out at the settlement stage, or
alternatively, that due process requires this second chance.
Neither argument is correct. We affirm.
University was "a private, for-profit entity purporting
to teach Trump's 'insider success secrets'"
in the real estate industry. Makaeff v. Trump Univ.,
LLC, 715 F.3d 254, 258 (9th Cir. 2013). In 2010, Sherri
Simpson was wooed to a free "investor workshop" in
Florida, which Trump University advertised as a chance to
"[l]earn from Donald Trump's hand-picked instructor
a systematic method for investing in real estate that anyone
can use effectively." At this event, attendees were