Case 3:10-cv-00940-GPC-WVG Document 614 Filed 03/29/17 PageID.34905 Page 1 of 6 1 2 3 Gary B. Friedman (NY Bar Reg. 2205466) * 154 Grand Street, 5th Floor New York, NY 10013 Telephone: (917) 568-5024 gfriedman@flgllp.com 8 Andrew G. Celli, Jr. (NY Bar Reg. 2434025)* Ilann M. Maazel (NY Bar Reg. 2899425)* EMERY CELLI BRINCKERHOFF + ABADY LLP 600 Fifth Avenue New York, NY 10020 (212) 763-5000 acelli@ecbalaw.com imaazel@ecbalaw.com 9 *admitted pro hac vice 4 5 6 7 10 11 12 13 14 15 Edward S. Zusman (SBN 154366) Kevin K. Eng (SBN 209036) MARKUN ZUSMAN FRENIERE & COMPTON LLP 465 California Street, Suite 401 San Francisco, CA 94104 Telephone: (415) 438-4515 Facsimile: (415) 434-4505 Attorneys for Nonparty Class Member and Objector Sherri B. Simpson 16 17 UNITED STATES DISTRICT COURT 18 SOUTHERN DISTRICT OF CALIFORNIA 19 SONNY LOW, et al., Plaintiffs, 20 21 22 23 24 25 Case No. 3:10-cv-0940-GPC-WVG SUPPLEMENTAL DECLARATION OF SHERRI B. SIMPSON v. TRUMP UNIVERSITY LLC DONALD J. TRUMP, Defendants. and Date: Time: Ctrm: Judge: March 30, 2017 1:00 p.m. 2D Hon. Gonzalo P. Curiel [Caption continued on next page] 26 27 28 Case No. 3:10-cv-0940-GPC-WVG 1 SUPPLEMENTAL DECLARATION OF SHERRI B. SIMPSON Case 3:10-cv-00940-GPC-WVG Document 614 Filed 03/29/17 PageID.34906 Page 2 of 6 1 2 ART COHEN, individually and on behalf of others similarly situated, Plaintiffs, 3 v. 4 5 No. 3:13-cv-02519-GPC-WVG DONALD J. TRUMP, Defendant 6 7 8 9 10 11 SHERRI B. SIMPSON declares under 28 U.S.C. § 1746: 1. 12 13 I submit this Supplemental Declaration to respond to certain factual matters raised by the Plaintiffs in their Reply Memorandum dated March 23, 2017. 2. 14 Throughout the duration of these cases, I was an interested and active 15 class member. I had a number of phone conversations with Class Counsel, I read 16 the updates that I received and I was slated at one point to appear as a witness at 17 trial. 18 3. In the Fall of 2015, I received in the mail a two-page Court-approved 19 Class Notice that told class members the case had been certified as a class action. 20 This mailed notice contained some basic information and told the recipient – 21 repeatedly, and in bold –to visit the official Court-approved case website for further 22 information. 23 4. I am very active online and I have visited the Court-approved case 24 website on several occasions. I believe that, shortly upon learning a class had been 25 certified, I went online, visited the case website and reviewed the detailed notice 26 that was posted there – i.e., the long-form notice entitled “Legal Notice From The 27 United States District Court For The Southern District Of California.” Certainly, it 28 would have been typical for me to review that notice online, and I am therefore Case No. 3:10-cv-0940-GPC-WVG 2 SUPPLEMENTAL DECLARATION OF SHERRI B. SIMPSON Case 3:10-cv-00940-GPC-WVG Document 614 Filed 03/29/17 PageID.34907 Page 3 of 6 1 confident that I read the promise, contained in Paragraph 13 of the long-form 2 notice, that class members would have the opportunity to submit requests for 3 exclusion from any settlement. That language was unequivocal: It said that, if I 4 stayed in the class, I would be notified in the future about “how to ask to be 5 excluded from any settlement.” 6 5. After receiving the Class Notice and visiting the case website, it was 7 my understanding and expectation that class members would receive the 8 opportunity to opt out in the event there were a settlement. I felt particularly safe in 9 trusting the notices and website because they had been approved by the Court. 10 6. If I had known that, in actuality, there would be no opportunity to opt 11 out in the event of a settlement – i.e., that I would have no choice but to be bound to 12 any future settlement that Class Counsel agreed to, sight unseen – I would at the 13 very least have investigated all my options and contacted a lawyer familiar with 14 class action practice. 15 7. I did not seriously consider opting out in response to the 2015 Class 16 Notice. My interest has been and remains proceeding to a trial in pursuit of treble 17 and punitive damages under RICO and other laws. At the time of the 2015 Class 18 Notice, the case was progressing well and I absolutely expected we were headed 19 towards a trial. Among other things, I was aware of defendant Trump’s repeated 20 public statements that this class action litigation “is a case I could have settled very 21 easily, but I don’t settle cases very easily when I’m right... I don’t settle cases. I 22 don’t do it because that’s why I don’t get sued very often, because I don’t settle, 23 unlike a lot of other people.” And again, if there were not a trial – if there were a 24 settlement – I understood that I would have the opportunity to opt out. 25 8. As late as November 16, 2016, I was in regular contact with Class 26 Counsel regarding the upcoming trial. Shortly after that date, I heard in the media 27 that the litigation was settling. I emailed Class Counsel on November 21 asking for 28 details. Class Counsel advised me to sit tight – that they expected to commence a Case No. 3:10-cv-0940-GPC-WVG 3 SUPPLEMENTAL DECLARATION OF SHERRI B. SIMPSON Case 3:10-cv-00940-GPC-WVG Document 614 Filed 03/29/17 PageID.34908 Page 4 of 6 1 settlement process with the Court shortly and that the details would be disclosed to 2 class members in February. 3 9. In January 2017, I visited the case website and saw that a Notice of 4 Settlement had been posted, which I read. To the best of my recollection, this is 5 before I received any hard copy Notice of Settlement in the mail. 6 10. The Notice of Settlement provided that the class members had no right 7 to seek exclusion from the Settlement. I was unhappy and uncomfortable with this 8 provision, which contradicted what class members had been promised in the earlier 9 Court-approved notice. 10 11. However, the Settlement Notice further advised, in no uncertain terms, 11 that the only way to receive funds from the Settlement was to file a Claim Form 12 before March 6, 2017. If I did not file a Claim Form by March 6, 2017, the notice 13 advised me, I would forfeit any right to receive any funds from the Settlement. I 14 did not wish to be deemed to have forfeited my share of the Settlement, which I 15 presently understand is roughly $15,000. 16 12. On the case website, I went to the tab marked “File A Claim.” There 17 was a fillable form, which I filled out and then clicked “submit.” Neither on the 18 Claim Form nor in the body of the Settlement Notice was there any explanation of 19 what a class member should do if she wants to both (A) object to the settlement 20 (e.g., on grounds that it wrongfully forecloses class members from opting out) and 21 (B) retain the right to receive her share of settlement proceeds in the event any such 22 objection is overruled. 23 13. The on-line fillable form did not permit marginal notations. 24 14. As I said, I was unhappy with the proposed settlement and with the 25 fact that it did not allow requests for exclusion. I did not know if there was a viable 26 legal claim to be made that the proposed settlement should be rejected. (I am an 27 attorney, but my practice and experience is far removed from class action litigation. 28 I handle mostly personal bankruptcy matters in a non-litigating role.). Case No. 3:10-cv-0940-GPC-WVG 4 SUPPLEMENTAL DECLARATION OF SHERRI B. SIMPSON Case 3:10-cv-00940-GPC-WVG Document 614 Filed 03/29/17 PageID.34909 Page 5 of 6 15. 1 I expressed my dissatisfaction with the proposed settlement in an 2 interview with People magazine, which published an article dated January 18, 3 2017. The People article quoted several Trump University victims stating that we 4 felt the settlement was unjust. According to that article, a number of “students who 5 spoke to PEOPLE are upset that Trump was able to settle with no admission of 6 guilt.” 16. 7 The People article recounted that, “like fellow ‘alums,’ Sherri Simpson 8 isn’t happy the lawsuits settled.” People was correct. I wished to exercise my right 9 to proceed to trial, rather than settle – and frankly, as I discussed with the reporter 10 for People, I felt my interests had been betrayed by Class Counsel. As noted in the 11 declaration of Class Counsel Amber Eck (Low Dkt. 612-3), I did not contact Class 12 Counsel. 17. 13 In mid-February I spoke by telephone with an experienced class action 14 attorney, Gary Friedman, and we discussed the Trump University settlement. It 15 soon became clear to me that there was indeed a path for addressing the sources of 16 the dissatisfaction that I felt, and had publicly expressed, with the settlement. 18. 17 Before the deadline for the submission of Claim Forms and for 18 objections, my counsel and I placed before the Court the following written 19 statement, which is true and correct: “In the exercise of caution, Ms. Simpson has 20 also submitted the claim form that was distributed along with the 2017 Class 21 Notice. That Notice provides that persons who do not complete the claim form by 22 March 6, 2017 will be deemed to have forfeited their interests in the settlement 23 fund. In the event this objection were denied, Ms. Simpson does not wish to have 24 forfeited her interests in the settlement funds.” See Objection Brief at 10, n.4. 25 /// 26 /// 27 /// 28 /// Case No. 3:10-cv-0940-GPC-WVG 5 SUPPLEMENTAL DECLARATION OF SHERRI B. SIMPSON Case Document 614 Filed 03/29/17 PagelD.34910 Page6of6 19. If given the opportunity, I will opt out of the class actions and pursue individual litigation. I declare under penalty of perjury the foregoing is true and correct. Dated: March 29, 2017 Fort Lauderdale, Florida SHERRI .SIMPS