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Donald Trump Gets SLAPP'd by 9th; Kozinski Wants to Stop SLAPPing

By William Peacock, Esq. on April 17, 2013 | Last updated on March 21, 2019

Tarla Makaeff is an angry, angry woman. She attended a seminar presented by Trump University that focused on investing in foreclosed properties. At the seminar, they convinced her to sign up for more "education," which given the rise in tuition across the United States, was a relative bargain at its $34,995 price tag.

Except, she alleged that it wasn't a bargain, nor was it educational. When she was denied a refund, she declared war on all fronts, from Internet message boards to the Better Business Bureau, and eventually, in the court of law via a class-action deceptive business practices lawsuit.

Trump University countersued for defamation. She countered their counter with a nifty California semi-procedural device (see the dreaded Erie question below) called the Anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. SLAPPs “masquerade as ordinary lawsuits but are intended to deter ordinary people from exercising their political or legal rights.”

Two Steps to SLAPP

In order to prevail in a SLAPP motion, the movant must make a prima facie showing that the suit arises from an act in furtherance of the defendant’s constitutional right to free speech. The burden then shifts to the plaintiff to establish a reasonable probability that it will prevail on its claim in order to survive dismissal.

Free Speech?

Both the district court and the Ninth Circuit agreed that Trump U’s counter-claim arose from the exercise of her free speech rights, as she was posting online and writing letters in the name of consumer protection, which falls under § 425.16(e)(4)’s “speech in connection with a public issue or an issue of public interest.”

Probability of Prevailing

In the district court, Trump University’s probability of prevailing trumped Makaeff’s showing of speech. The dispositive factor was the lower court’s ruling that Trump University was not a public figure, and therefore did not have to prove actual malice.

Though Donald Trump is unfortunately a public figure, his pseudo-celebrity status does not extend to his namesake “university.” Its status is independent.

The Ninth Circuit held that Trump University was, in fact, a Gertz limited purpose public figure for purposes of discussions of the University’s creditability. Concerns over the legitimacy of Trump U have been swirling for some time — both in newspaper editorials and on Internet message boards.

Trump U has consistently addressed concerns over its credibility, both in an advertising blitz and in its course materials. This amounts to “voluntarily inject[ing] itself into the controversy for the purpose of influencing the controversy’s ultimate resolution.”

It will now be up to the District Court to handle the issue of whether Trump U has a reasonable probability of proving actual malice.

Erie Questions

Think back to law school. Remember that Erie nightmare? It continues to haunt and confound the best of us, including Chief Judge Kozinski, who issued a concurrence arguing that the circuit should reconsider its Newsham holding, as the Anti-SLAPP motion is a purely procedural device and therefore shouldn’t be used in federal courts.

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