How Bad Are the Charges Against Trump University? Really Bad

Chock up yet another first for the Teflon-plated real-estate mogul and reality-TV star Donald J. Trump. His now-discontinued Trump University operation has been accused not just of fraud, false advertising, and unfair business practices, but also of having used such tactics against vulnerable seniors in ways that violated special “financial elder abuse” statutes in California and Florida. The civil trial is currently on track to begin in August in federal court in San Diego, just a few weeks after the Republican convention concludes in Cleveland on July 21.

Seniors or not, many participants in the Trump University program obviously didn’t have lots of money to spare, and the idea of their having plowed so much money into courses on risky real-estate speculation is painful to contemplate.

“How many of you lost a lot of your 401(k) investment in the market?” a salesman would allegedly ask prospective students, following a script, before trying to cajole them into forking over $35,000.

“How many times do you go into Walmart, and you’re greeted by a guy or gal who is 70+ years old?” the salesmen would allegedly ask. “Do you want to be doing that when you’re 70 years old, or do you want to be playing golf and enjoying your retirement?”

The speakers also urged participants to “cash in” their 401(k)s, the plaintiffs claim, in order to make a higher return by following the steps laid out in the course.

In fairness, anybody can allege anything in a lawsuit. In their court papers, the defendants have denied targeting seniors or that their instructors followed scripts. Trump has stressed that the Trump U cases are just “civil” and “a small deal, very small.” He has repeatedly asserted that his university enjoyed a “98 percent approval” rate on satisfaction surveys—a claim he also advances on a website called 98percentapproval.com. The defendants deny any fraud, deception, or wrongdoing.

But after nearly six years of litigation, with discovery now complete, the charges have withstood several rounds of the dismissal motions that typically weed out frivolous claims. (In addition to the class action I’m referring to, in San Diego federal court, there are two other pending suits which aren’t as far along: a second class action in San Diego federal court, making civil racketeering charges, and an action filed by New York Attorney General Eric Schneiderman, alleging fraud, false advertising, and other violations, and seeking $40 million in restitution.)

Notwithstanding the emphasis Trump places on his satisfaction surveys, they hardly form an air-tight defense. They were not anonymous, to start with—they were filled out in front of the instructors themselves—and were executed during or immediately upon completion of the seminars, the plaintiffs say, before the students knew whether the company’s promises of continued support would be borne out.

A federal appeals court hearing a preliminary dispute in the case in April 2013 explained then why a jury might easily choose to disregard such surveys: “As the recent Ponzi-scheme scandals involving onetime financial luminaries like Bernard Madoff and Allen Stanford demonstrate, victims of con artists often sing the praises of their victimizers until the moment they realize they have been fleeced.”

So let’s review what Trump University was, and how it allegedly worked.

Trump University was formed in late 2004 and originally focused on web-based seminars and CD-ROMs. In May 2005 the New York Education Department notified Trump U that it was operating without a license and its use of the term “university” violated state law. The program, run directly out of the Trump Organization offices, pledged to move its headquarters out of New York, according to the New York AG’s complaint.

But it didn’t, according to the AG. It stayed and, in fact, used the Trump Organization’s “40 Wall Street” address in many of its promotional materials—apparently to underscore to students that they were now playing in the big leagues, Schneiderman and the plaintiffs contend. (Only five years later, in May 2010—after receiving a cease-and-desist letter from AG Schneiderman’s office—did the program finally change its name to Trump Entrepreneur Initiative. A few months after that, it ceased operations.)

In 2007 Trump University began doing live seminars. It gave them in California, Florida, New York, Illinois, Texas, and many other states. Some people have described the seminars as a “sales funnel,” for reasons that will soon become apparent.

In promotional videos, ads, and individualized invitations, members of the public were urged to attend free 90-minute introductory “previews” of the program’s course on doing real-estate deals. These were infomercials where the instructors urged participants to buy a three-day seminar, which cost $1,495, according to the complaint.

The seminars, the ads said, would feature “amazing instructors” and “priceless information,” according to the complaint. Students could “learn from the master—Donald Trump,” according to the ads; “It’s the next best thing to being his apprentice.” The instructors would be “hand-picked” by Trump, they were promised. (In depositions Trump could not identify scores of instructors. He testified that he couldn’t be sure if he ever knew them because too much time had passed. He did identify four people he knew who devised the course materials, and who the defendants say were responsible for hiring the instructors. The plaintiffs claim that many instructors had little or no real estate experience, which the defendants deny.)

Close to 6,000 students eventually bought into the three-day seminar. There students were urged to raise their credit card limits and to fill out financial statements, according to the plaintiffs. These steps would facilitate their later real-estate deals, they were allegedly told. But the plaintiffs contend that both steps were really taken in anticipation of the next sales pitch, which arrived on the second day of the seminar.

That’s when the instructors urged prospects to slide further down the sales funnel. Seminar leaders pressed students to buy a “year-long mentorship” called the Trump Elite Gold program, which cost—brace yourself— $34,995. Instructors allegedly got 10% commissions on each sale. If the student balked, there were also Silver and Bronze Elite programs, for about $19,495 and $9,995. Participants were told that these were special, one-day-only prices; thereafter the cost would jump to about $48,490; $23,490; and $10,995, they were told, according to the complaint. (More than 1,650 students bought services beyond the original first three-day seminar.)

The Elite program featured a three-day, one-on-one field experience, which was supposed to be followed by a “year-long” mentorship. Plaintiffs claim that the experience wasn’t what it was billed to be, and the mentorship petered out early. Trump University, they claim, only paid its mentors for a maximum of six one-hour followup sessions with students. (The defendants have denied this allegation.)

One named class representative alleges she spent $60,000 in all, counting all the Trump products and services she purchased—even after ponying up for the Gold Elite program—and all the credit cards fees, expenses, and penalties she ended up paying.

These aren’t very pretty allegations for a Presidential candidate to be fending off. If they are “a small deal, very small,” Trump hasn’t been treating them as such. He has threatened to sue—or actually sued—many of the people who have brought them to the public’s attention.

One of the first was Los Angeles Times reporter David Lazarus, who took a seminar and then wrote about it in December 2007. By phone, Trump personally advised him a few days later that his story was “inaccurate” and “libelous,” Lazarus wrote in a followup, but refused to say in what respect. He’d provide details “in court,” he told Lazarus, where he’d be suing the reporter’s “ass” off.

Trump didn’t follow up that time. But when Tarla Makaeff filed a class action in April 2010, Trump filed a $1 million counterclaim against her, for defamation. (Makaeff eventually succeeded in having the counterclaim dismissed under a California law designed to deter frivolous suits filed by well-heeled defendants in an effort to chill speech on issues of public interest. Last April, U.S. District Judge Gonzalo Curiel ordered Trump to pay Makaeff’s lawyers almost $800,000 in fees and costs.)

Trump has made similar threats to the law firm bringing Makaeff’s suit. At a deposition in September 2012, he vowed that after he won the case he’d sue plaintiffs firm Robbins Geller Rudman & Dowd “for as much as we can possibly do,” and would sue the attorney deposing him, Rachel Jensen, “individually.”

When AG Schneiderman sued Trump University in 2011, the Trump Organization filed a counterclaim against Schneiderman for malicious prosecution, seeking “not less than $100 million.”

And when Trump’s Presidential campaign found out that a political action committee was running TV ads featuring former students of Trump university, the Trump Organization’s lawyer reportedly sent a cease-and-desist letter threatening to sue the PAC (albeit the wrong PAC).

There’s even an allegation—which Trump denies—that he threatened to sue the Better Business Bureau. In January 2010, the BBB gave Trump University a D- rating. Today, the BBB site states that Trump U’s successor, Trump Entrepreneur Institute, is not rated, because the program is believed to be out of business. In the racketeering case against Trump, plaintiffs allege that after the University got its “D-“ rating, Trump “changed Trump University’s name [and] demanded an ‘A+’ evaluation, and when BBB was unable to issue a good ‘grade’ due to ongoing consumer complaints, Defendant Trump called BBB and his lawyer threatened to sue BBB. As a result BBB changed Trump University’s ‘grade’ to ‘NR’ for ‘Not Rated.'” (Trump has denied this allegation in his answering papers. BBB did not return messages seeking comment.)

Trump has also laced into Judge Curiel for not having dismissed the suit. He has suggested that Curiel is prejudiced—maybe, he implies, because the judge is Hispanic. At an Arkansas campaign rally on February 26, for instance, Trump said:

We have a very hostile judge because, to be honest with you, the judge should have thrown the case out on summary judgment but, because it was me and because there’s a hostility towards me by the judge – tremendous hostility – beyond belief – I believe he happens to be Spanish, which is fine – he’s Hispanic, which is fine, and we haven’t asked for recusal, which we may do, but we have a judge who’s very hostile.

(Judge Curiel did not immediately respond to messages left with his chambers and courtroom deputy seeking comment.)

In any case, no matter how “small” a matter the case is, Trump seems to be taking it seriously in terms of the lawyers he has hired to defend it. Originally, he hired a two-partner San Diego boutique. But in 2014, he switched to a team of lawyers with the 850-lawyer AmLaw 100 firm Foley & Lardner.

Then last December, after failing to dismiss the charges or decertify the class, he switched law firms yet again—this time to one of the most illustrious in the nation, O’Melveny & Myers, tapping a team led by Dan Petrocelli, one of the country’s premier litigators. (Petrocelli is probably best known for having represented former Enron CEO Jeff Skilling in his federal criminal proceedings, but he’s also the guy who won a $33.5 million judgment in the civil wrongful death suit against O.J. Simpson for the family of Ron Goldman, who was murdered alongside Nicole Brown Simpson in 1994.)

A small deal? Very small? A Presidential nominee on trial for civil fraud could be yuuuuge come August.