President Donald Trump and three of his adult children have filed a notice of appeal in a New York City federal court after last week suffering a major defeat over a bid to keep a fraud and deceptive trade practices lawsuit out of the public judicial system. They’ve also moved to stop ongoing discovery efforts.
Filed by longtime Trump Organization attorney Joanna Hendon, a variety of legal documents were submitted with the U.S. District Court for the Southern District of New York (SDNY) on Monday.
The Trump family and Organization hope to have the lawsuit–which began as a series of claims alleging a “racketeering enterprise” and conspiracy to commit racketeering–removed from the federal courts and sent into the shadowy world of arbitration, a form of alternative dispute resolution which operates on a for-profit business model.
According to the American Bar Association (ABA): “Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments. Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute.”
“The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator,” the ABA website notes. “Compared to traditional trials, arbitration can usually be completed more quickly and is less formal.”
The case has been in the federal system since it was originally filed in October 2018. The lawsuit eventually morphed from racketeering-themed complaints into a suite of various state law claims under multiple states’ fraud and deceptive trade practices laws.
Recently, however, the Trump family and business have tried to force the plaintiffs into accepting the private and privatized justice offered by the third-party arbitration industrial complex.
The nonpartisan Economic Policy Institute explains the danger:
In the past three decades, the Supreme Court has engineered a massive shift in the civil justice system that is having dire consequences for consumers and employees. The Court has enabled large corporations to force customers and employees into arbitration to adjudicate practically all types of alleged violations of countless state and federal laws designed to protect citizens against consumer fraud, unsafe products, employment discrimination, nonpayment of wages, and other forms of corporate wrongdoing. By delegating dispute resolution to arbitration, the Court now permits corporations to write the rules that will govern their relationships with their workers and customers and design the procedures used to interpret and apply those rules when disputes arise.
Last week, the Trump family suffered a major blow in their efforts to force the plaintiffs into accepting arbitration when Barack Obama-appointed U.S. District Judge Lorna G. Schofield ruled that arbitration would be improper in the case stylized as Jane Doe, et al. v. The Trump Corporation.
The SDNY’s ruling used critical language to categorize the timely nature of the request by the 45th president, his kin and entity.
“Defendants aggressively litigated in this judicial forum for eight months before informing Plaintiffs of their intent to arbitrate the surviving claims,” Schofield noted. “Defendants obtained the benefits of litigating in federal court — dismissal of the racketeering claims, a stay of discovery while the motion was pending, and the issuance of numerous non-party subpoenas that would not have been available in arbitration.”
“These wins and benefits on the defense side represent defeats and prejudice on the Plaintiffs’ side,” the judge’s opinion continued. “Now that Defendants have extracted what they can from the judicial proceedings, they seek to move to a different forum. This conduct is both substantively prejudicial towards Plaintiffs and seeks to use the [Federal Arbitration Act] as a vehicle to manipulate the rules of procedure to Defendants’ benefit and Plaintiffs’ harm.”
Along with the Monday notice of appeal, Hendon also filed a much longer letter motion arguing for a stay of the court’s prior order while the appeal is pending and moving for a conference to discuss why last week’s ruling would cause the Trump family “irreparable harm absent a stay pending appeal.”
“Here, [the Trumps’] prejudice is immediate, real, and ongoing,” Hendon’s letter motion argues. “Plaintiffs have brought a putative class action and issued a [large number] of third-party discovery demands, neither of which would be possible in arbitration.”
The letter went on to complain about the details of Schofield’s ruling:
Over [the Trumps’] objection, the Court has: enlarged the discovery deadlines from March 3, 2020 to May 2, 2020; authorized 39 third-party subpoenas demanding materials, and in some cases, testimony, to which Plaintiffs would not entitled in arbitration; more than doubled the date range for [Electronically Stored Information (ESI)] discovery available under the Court’s individual rules and waived the Court’s 10 custodian limit for Plaintiffs’ ESI demands. On April 9, 2020, the day after the Court denied [the Trumps’] motion to compel arbitration, the Court decided a raft of third-party discovery disputes in Plaintiffs’ favor.
“As a result, Plaintiffs are now eight months into a third-party discovery campaign forbidden by the arbitration provisions to which they agreed – and to which Defendants have continually objected since August,” Hendon’s letter continues. “The resulting prejudice to [the Trumps] is obvious and incalculable.”
The Trump family’s stay motion goes on to argue that the class represented by Jane Doe would not be particularly prejudiced if the expansive discovery envisioned by Schofield’s original order was briefly paused pending the outcome of the appeal.
Notably, Hendon also claims there’s no public interest in the outcome of the ongoing litigation.
“The public interest also favors a stay,” her letter reads. “This litigation concerns a private dispute that does not directly implicate any public entity or public interest that might counsel against a stay.”
That’s a decidedly controversial take on the underlying litigation and the discovery that Hendon hopes to have paused. Part of the original SDNY ruling declared that long-secret tapes of the president culled from the archives of The Celebrity Apprentice must, finally, see the light of day.
And, some of the president’s political foes hope, at least some of those tapes will weigh heavily on matters important to the public because they allegedly showcase then-game show host Trump engaging in racist and sexist commentary.
Read the full motion below:
[Image via TIMOTHY A. CLARY/AFP/Getty Images]
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