Cohen v. Trump, No. 3:2013cv02519 - Document 130 (S.D. Cal. 2015)
Court Description: 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 ma ke 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)
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Cohen v. Trump Doc. 130 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ART COHEN, Individually and on Behalf of All Others Similarly Situated, 12 13 14 15 16 Plaintiff, v. 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] Defendant. 17 18 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.) 21 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. BACKGROUND 25 26 On October 27, 2014, this Court certified a nationwide class in this case. (ECF 27 No. 53.) The class consists of: 28 All persons who purchased Live Events from Trump University throughout the United States from January 1, 2007 to the present. -1- 13cv2519-GPC-WVG Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 subclasses: All persons who purchased a Trump University three-day live “Fulfillment” 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 limitations; (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 27 1 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). -2- 13cv2519-GPC-WVG 1 2 3 4 5 (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.) 7 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.) 11 12 LEGAL STANDARD 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: 17 The notice must clearly and concisely state in plain, easily understood language: 18 (i) the nature of the action; 19 (ii) the definition of the class certified; 20 (iii) the class claims, issues, or defenses; 21 (iv) that a class member may enter an appearance through an attorney if the member so desires; 22 23 24 25 (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 -3- 13cv2519-GPC-WVG 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). 5 DISCUSSION 6 I. 7 The crux of the parties’ dispute regarding class notice is whether to send a single Joint Notice 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). 22 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 26 2 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.) 28 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. -4- 13cv2519-GPC-WVG 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.) 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 22 members. 23 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 -5- 13cv2519-GPC-WVG 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”). 5 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. 16 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. 20 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. 27 28 II. Other Objections a. Proposed Pre-paid Postcard -6- 13cv2519-GPC-WVG 1 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). 8 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 12 Events. 13 14 b. 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 26 explained, 27 28 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 -7- 13cv2519-GPC-WVG 1 2 3 4 5 6 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 (N.D.Cal.1988). 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. 10 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 22 litigation. 23 24 25 c. Defendants’ Request for Ten (10) Days Review of Class Member List 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 -8- 13cv2519-GPC-WVG 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 5 period. 6 7 CONCLUSION 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: 10 1. The Proposed Class Notices (attached as ECF No. 71-1, Ex. A; ECF No. 11 61-2, Ex. 2, and ECF No. 61-2, Ex. 3) are approved for dissemination of 12 class notice. The parties are authorized to make non-substantive changes 13 to the notice, as long as they are acceptable to both parties, to reflect 14 deadlines, mailing addresses, and similar information or to format the 15 notice for printing. 16 2. Plaintiffs will submit an amended Return Postcard (attached as ECF No. 17 61-2, Ex. 4) that is consistent with this Order within seven (7) days of the 18 Order. 19 3. 20 21 Epiq Systems, Inc. is approved as “Notice Administrator” to supervise and carry out the notice procedure. 4. The Notice Administrator is directed to compile a list of names and 22 addresses of purchasers of “Trump University” programs as they appear 23 in defendants’ records, and Defendants are directed to cooperate in 24 ensuring the list of potential Class Members is as complete and accurate 25 as possible. 26 5. The Notice Administrator is directed to establish and monitor a website 27 (www.trumpuniversitylitigation.com), making available copies of the 28 Long-Form Notice, this Court’s class certification orders, an address for -9- 13cv2519-GPC-WVG 1 mailing requests for exclusion or providing contact or age information, 2 and other helpful information. 3 6. The Notice Administrator is directed to establish a toll-free telephone 4 number, (866) 841-7311, where Class Members may call for additional 5 information. 6 7. The Notice Administrator is ordered to send through U.S. first-class mail, 7 within ten (10) days of the Order (the “Notice Date”), the Mailed Notice, 8 substantially in the form attached as ECF No. 61-2, Ex. 3, to each 9 purchaser identified on the list informing them of both class actions. 10 Among other things, the Mailed Notice shall provide a website, address 11 and phone number, information as to how Class Members can obtain a 12 Long-Form Notice, substantially in the form attached as ECF No. 71-1, 13 Ex. A, which includes: (i) more detail about the litigation and answers to 14 frequently-asked questions; (ii) an address for sending requests for 15 exclusion from one or both of the Classes; and (iii) information as to how 16 Class Members can update their information and senior citizens to 17 indicate they may be members of an elder financial abuse subclass. 18 Provided that the amended Return Postcard has been subsequently 19 approved by the Court, the Notice Administrator is authorized to include 20 it in the Mailed Notice. 21 8. The Notice Administrator is ordered to publish on one occasion in the 22 national edition of USA Today the Summary Notice, substantially in the 23 form attached as ECF No. 61-2, Ex. 3, not later than ten (10) days after 24 the Notice Date, which will give those who did not receive the notice by 25 mail an opportunity to request it and to protect any rights they may have. 26 9. The deadline for exclusion from the Class shall be forty-five (45) days 27 after the Notice Date (“Opt-Out Deadline”). Any Class Member who 28 does not send a completed, signed request for exclusion to the Notice - 10 - 13cv2519-GPC-WVG 1 Administrator post-marked on or before the Opt-Out Deadline will be 2 deemed to be a Member of the Class for all purposes and bound by all 3 further orders and judgments of the Court. All opt outs shall not be so 4 bound, but also barred from sharing in any recovery. 5 10. The Notice Administrator is ordered to provide counsel for both parties 6 with a list of all timely requests for exclusion within seven (7) business 7 days after the Opt-Out Deadline. Plaintiffs are ordered to file such list 8 with the Court within three (3) days thereafter. 9 IT IS SO ORDERED. 10 11 DATED: September 21, 2015 12 13 HON. GONZALO P. CURIEL United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - 13cv2519-GPC-WVG
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