ORDER:

DENYING DEFENDANTS' MOTION FOR LEAVE TO FILE RENEWED MOTION FOR DECERTIFICATION

DENYING PLAINTIFFS' MOTION TO MODIFY SCHEDULING ORDER TO FILE A MOTION TO CLARIFY OR AMEND THE COURT'S CLASS CERTIFICATION ORDERS

[ECF Nos. 482, 489]

GONZALO P. CURIEL, District Judge.

Before the Court is Defendants Trump University LLC and Donald J. Trump's ("Defendants") June 3, 2016 Motion for Leave to File Renewed Motion for Decertification ("Def. Mot."), ECF No. 482, as well as Plaintiffs Sonny Low, J.R. Everett, and John Brown's ("Plaintiffs") June 17, 2016 Motion to Modify Scheduling Order to File a Motion to Clarify or Amend the Court's Class Certification Orders ("Pl. Mot."), ECF No. 489. The motions have been fully briefed. See Plaintiffs' Opposition to Defendants' Motion for Leave to File Renewed Motion for Decertification ("Pl. Resp."), ECF No. 488; Defendants' Reply in Support of Motion for Leave to File Renewed Motion for Decertification ("Def. Reply"), ECF No. 493; Defendants' Opposition to Plaintiffs' Motion to Amend the Court's Class Certification Order ("Def. Resp."), ECF No. 495; Plaintiffs' Reply in Support of Motion to Modify Scheduling Order to File a Motion to Clarify or Amend the Court's Class Certification Orders ("Pl. Reply"), ECF No. 496. A hearing was conducted on July 22, 2016. ECF No. 499.

Upon consideration of the moving papers, parties' oral arguments, and the applicable law, and for the following reasons, the Court DENIES both motions.

BACKGROUND

On February 21, 2014, the Court granted in part and denied in part Plaintiffs' motion for class certification ("Initial Cert. Order"). ECF No. 298. The Court noted that Plaintiffs alleged that Defendants made the following "core" misrepresentations: "(1) Trump University was an accredited university; (2) students would be taught by real estate experts, professors and mentors hand-selected by Mr. Trump; and (3) students would receive one year of expert support and mentoring." Id. at 4.

On September 18, 2015, the Court granted in part and denied in part Defendants' motion for decertification of the class action ("Decert. Order"). ECF No. 418. The Court denied the motion to decertify on liability issues as to all causes of action, but granted the motion on damages issues as to all causes of action, and bifurcated the damages issues to follow trial on the liability phase. Id. at 21. The Court also granted Plaintiffs' motion to clarify the Court's class certification order, and clarified that the class definition going forward would be:

Id. at 22.

On September 21, 2015, the Court granted in part and denied in part Plaintiffs' motion for approval of class notice and directing class notice procedures. ECF No. 419. On November 15, 2015, the opt-out period expired. See id. at 11.

On November 18, 2015, the Court granted in part and denied in part Defendants' motion for summary judgment. ECF No. 423. The Court granted Defendants' motion for summary judgment with respect to Plaintiffs' claims for injunctive relief under California law, and denied summary judgment as to all other claims. Id. at 44.

On April 20, 2016, the Court granted in part and denied in part Plaintiff Tarla Makaeff's motion to withdraw. ECF No. 475. The Court permitted Plaintiff Makaeff to withdraw, but on the condition that Defendants were entitled to depose Plaintiff Low, the other California class representative, again. Id. at 2.2

A pretrial conference was held on May 6, 2016. ECF No. 478. A trial is set for November 28, 2016. Id.

LEGAL STANDARD

"An order that grants or denies class certification may be altered or amended before final judgment." Fed. R. Civ. P. 23(c)(1)(C); Rodriguez v. West Publ'g Corp., 563 F.3d 948, 966 (9th Cir. 2009) ("A district court may decertify a class at any time"). In deciding whether to decertify a class, a court may consider "subsequent developments in the litigation." Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 160 (1982).

DISCUSSION

I. Defendants' Motion for Leave to File Renewed Motion for Decertification

Defendants make several arguments as to why the Court should consider a renewed decertification motion following the pretrial conference. Namely, Defendants argue that: (1) class members were not uniformly exposed to the alleged "core" misrepresentations; (2) individual issues of reliance, causation, and materiality predominate; (3) Low's recent testimony establishes that he lacks standing; and (4) the Court's reliance on FTC cases "violates binding Ninth Circuit law." See Def. Mot. 13-25. However, none of Defendants' arguments are persuasive.

First, as to Defendants' first two arguments, both arguments were extensively considered by the Court in its previous certification orders. See Initial Cert. Order 14-26. Almost all of the evidence proffered by Defendants here was available to Defendants at the time of the earlier certification orders, see Pl. Resp., Ex. A, which is unsurprising considering that discovery closed more than a year and a half ago on December 19, 2014, see ECF No. 349. The Court "declines to revisit these previously resolved issues . . . especially where no intervening events have led to changed circumstances." See In re Apple iPod iTunes Antitrust Litig., 2014 U.S. Dist. LEXIS 165254 (N.D. Cal. Nov. 25, 2014) (rejecting motion for decertification where "Apple presented many of these arguments while opposing earlier certification motions").

Second, the Court finds Defendants' third argument that Plaintiff Low's new testimony establishes that he lacks standing unpersuasive. Defendants argues that Low's new testimony demonstrates that he did not actually rely on Defendants' representations in purchasing TU programs. Def. Mot. 21. However, Defendants' arguments rely on a selective interpretation of Low's new testimony.

First, Defendants argue that Low was not concerned with whether TU was an accredited university. Id. Defendants point to deposition testimony where Low stated that he did not recall ever seeing the word "accredited" used in TU materials, Low Dep. 109:19-21, Def. Mot., Ex. 11, and where Low stated that whether TU was an accredited university "was not even a consideration for me. I went there because it was Trump University, that he created." Id. at 116:11-15.

However, Low also testified:

Low Dep. 32:7-17, Pl. Resp., Ex. F. Similarly, when Low was asked,

Low Dep. 101:5-12; 101:19-102:10. Low's testimony demonstrates that, even if Low was unfamiliar with the technical term "accredited," Low understood TU to have undergone the same "processes . . . to be called a legitimate university" involving "standards and qualifications" as other accredited universities, such as the University of Pennsylvania and the University of California. Moreover, Low's testimony demonstrates that this understanding was an important factor to Low in purchasing in TU programs.

Second, Defendants argue that Low's definition of handpicked to mean "whatever Donald J. Trump used with his determination, that he would pick the people," Low Dep. 157:7-9, is imprecise, and that Low's testimony that he believed his TU instructors "had not spoken with Mr. Trump," id. at 129:20-23, demonstrates that he did not rely on Defendants' representation that TU instructors would be "handpicked" by Defendant Trump. Def. Mot. 21.

However, whether Low believed that his TU instructors had "spoken" with Defendant Trump is quite obviously a separate matter from whether Low believed that Defendant Trump had "handpicked" his TU instructors. Moreover, Low also testified,

Low. Dep. 144:14-145:7. In this testimony, Low demonstrates that he understood his TU instructors to have been "handpicked" by Defendant Trump, and implicitly equates the term "handpicked" with "personally selected." Moreover, as pointed out earlier, Low also testified that "when he sent out the special invitation, signed by Donald J. Trump himself, `Come to one of my free seminars and learn through my handpicked instructors and mentors the secrets to become rich, be a success in real estate,[`] that was very important to me." Low Dep. 32:12-17. Thus, Low both seems to have a commonsense understanding of what the term "handpicked" means, and to have relied upon Defendants' representation that Defendant Trump "handpicked" TU instructors in deciding to purchase TU programs.

Finally, the Court finds unpersuasive Defendants' fourth argument that "[t]he Court's reliance on FTC cases violates binding Ninth Circuit law." Def. Mot. 22. Defendant argues that under Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007), the Court erred in analogizing to Federal Trade Commission (FTC) Act cases where a full-refund damages theory was found appropriate, such as FTC v. Figgie Int'l, Inc., 994 F.2d 595 (9th Cir. 1993), in order to conclude that Plaintiffs' full-refund damages theory was consistent with their theory of liability in the instant case.

Lozano, however, found that, in a situation where the California courts had not yet determined how to define the "unfair" prong of California's Unfair Competition Law ("UCL"), the Ninth Circuit would decline to apply the three-pronged FTC Act test "in the absence of a clear holding from the California Supreme Court." 504 F.3d at 736. It is unclear how this 2007 case "bind[s]" the Court from analogizing to FTC Act cases in order to uphold the viability of a damages theory under Comcast.3

Accordingly, the Court DENIES Defendants' motion for leave to file a renewed motion for decertification.

II. Plaintiffs' Motion to Modify Scheduling Order to File a Motion to Clarify or Amend the Court's Class Certification Orders

The Court addressed the first component of Plaintiffs' motion at the July 22, 2016 hearing, where the Court set forth a possible procedure by which Plaintiffs' counsel could retain their involvement in the case following the conclusion of the liability stage. See Hr'g Tr. 4-5, ECF No. 500.4 In the second component, Plaintiffs argue that the core misrepresentation certified by the Court that "Trump University was an accredited university," Decert. Order 2, should be "clarified" because "Defendants purport beguilement over the variety of adjectives that [P]laintiffs have used over the years to modify university . . . [including] `legitimate,' `accredited,' `elite,' `actual,' and `real,'" Pl. Mot. 5. Plaintiffs are not explicit on how exactly they wish the class certification Order to be "clarified," except insofar as they suggest that "the class notice in this case accurately conveys the `university' aspect of [P]laintiffs' class claims." Id. at 6.

The Court rejects Plaintiffs' effort as untimely. This Court first certified the core misrepresentations (that "(1) Trump University was an accredited university; (2) students would be taught by real estate experts, professors and mentors hand-selected by Mr. Trump; and (3) students would receive one year of expert support and mentoring") over two and a half years ago, and neither party challenged those core misrepresentations in the ensuing period of time. See Initial Cert. Order 4; Decert. Order 2. Moreover, Plaintiffs offer no authority for the proposition that the scope of the certified claims in a class action should be determined in accordance with the class notice, rather than the Court's class certification order.

Accordingly, Plaintiffs' motion to modify scheduling order to file a motion to clarify or amend the Court's class certification orders is DENIED.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.