Trump University in Court: Here’s What’s at Stake for the Candidate

May 06, 2016

Presumptive Republican Presidential nominee Donald Trump, no stranger to litigation, faces some off-message distractions from at least two civil lawsuits in the immediate months ahead.

One is in San Diego, and concerns his controversial Trump University operation, and the other is in West Palm Beach, Fla, and relates to the Trump National Golf Resort of Jupiter, Fla.

Just how distracting these cases may prove we'll begin to find out Friday, when a San Diego federal judge sets a trial date in a class-action against Trump University, which sold real-estate seminars to the public between 2005 and 2010.

Trump is a named defendant in that case, and is expected to be a key witness in it. (He is also a defendant in two other Trump University suits—a civil racketeering case brought in San Diego federal court and a consumer fraud suit brought by New York Attorney General Eric Schneiderman in Manhattan state court. But neither of those cases will come to trial before the general election in November.)

The Trump University plaintiffs claim that the expensive seminars in which they enrolled—for as much as $35,000—didn't live up to their promise. They've leveled accusations of consumer fraud, unfair business practices, false advertising, and "financial elder abuse"—a term used in California and Florida statutes when deceptive business practices are aimed at seniors. (For a more detailed look at the charges, see here.)

Trump has denied wrongdoing, pointing to satisfaction surveys that, he says, show that more than 90% of enrollees were delighted with the courses. (The plaintiffs reply that the surveys were not confidential, were filled out before the "mentorship" had barely begun, and in the presence of instructors who would be vital to whether the mentorship would prove a success. )

The case had once been on track for a June trial. But last December, after Trump announced his candidacy, U.S. District Judge Gonzalo P. Curiel seemed inclined to put it off until August—after the Republican convention in July. At the time both sides seemed to assume that Trump likely would have long since dropped out of the presidential race by then.

By March, however, when it was becoming apparent that candidate Trump was only gaining steam and, indeed, might even still be around after the convention, the parties began grappling with the changed landscape, which offered no easy solutions. The key challenge was how to pick an unbiased jury in the middle of the blaring hoopla of a Presidential campaign.

The plaintiffs suggested reverting to the idea of trying the case in June, but of doing so before the judge only, sitting without a jury. (Judges are presumed to be better able to cordon themselves off from extraneous, potentially prejudicial stories in the press than jurors.) If the plaintiffs voluntarily dropped certain claims, they suggested, and pursued only charges under California's broad statutes against unfair business practices and false advertising statutes, which do not carry a right to jury trial, then Judge Curiel could go forward with the case quickly in June.

Trump counsel Dan Petrocelli, however, called that proposal "a transparent attempt to prejudice defendants’ ability to defend this case at trial while Mr. Trump is running for President." He argued that such an approach would violate standard federal court practices and would imperil Trump's Seventh Amendment right to a jury trial.

The prospect of a nonjury trial before Judge Curiel might be unattractive to the Trump camp for a second reason—one that was not raised explicitly then and is not likely to come up at today's hearing either, set for 1:30 pm Pacific Time. That reason relates to the fact that candidate Trump, on the stump, has repeatedly accused Judge Curiel of bias—and has even suggested that the alleged bias might stem from Curiel being Hispanic.

In Arkansas in February, 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. 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."

In any case, Petrocelli intimated in March that if Trump did, in fact, become the Republican nominee, he would likely be opposing a post-convention trial setting because it would be, in terms of the media environment, "a zoo." (Petrocelli knows a thing or two about high-publicity jury trials. He represented former Enron CEO Jeff Skilling in his criminal trial in Houston and won a $33.5 million civil wrongful death verdict against O.J. Simpson in downtown Los Angeles.)

Even the plaintiffs lawyer at the March hearing, Jason Forge of Robbins Geller Rudman & Dowd, acknowledged that they were already facing a "media circus."

“It really is an unprecedented level of publicity,” Forge said then. “We’ve all seen high-profile cases, but nothing like this…. But that does not mean we should not go forward on some claims.”

Judge Curiel, for his part, has made no secret of his desire to finally get this case—filed six years ago, and the second oldest on his docket—to trial.

Furthermore, postponing the case until after the general election in November won't solve the "media circus" problem if—as could happen—candidate Trump then becomes President Trump.

Under the U.S. Supreme Court's 1997 precedent in the [Bill] Clinton v. [Paula] Jones, a President enjoys no immunity from civil suit, so it's unlikely a President Trump could get a stay then.

As singular as the situation before Judge Curiel might seem, a nearly identical quandary may be playing out soon in West Palm Beach, Fla.

There one of Trump's golf resorts, the Trump National Golf Club of Jupiter, has also been sued by its members in a federal court case tentatively scheduled to come to trial June 15. Trump was deposed there, too, and is on the plaintiffs witness list.

The plaintiffs allege that when Trump bought the club from Marriott in 2012, he breached their membership contracts by unilaterally changing their terms in a way that effectively sought to convert their refundable deposits—ranging from about $55,000 to $210,000—into nonrefundable deposits. (New York Times columnist Joe Nocera detailed the allegations of that case here.) Trump and his fellow defendants have denied wrongdoing, and have moved for summary judgment—a dismissal of most of the key charges prior to trial—which U.S. District Judge Kenneth Marra has not yet ruled upon.

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