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1 DANIEL M. PETROCELLI (S.B. #97802) [email protected] 2 DAVID L. KIRMAN (S.B. #235175) [email protected] 3 O’MELVENY & MYERS LLP 1999 Avenue of the Stars 4 Los Angeles, California 90067-6035 Telephone: (310) 553-6700 5 Facsimile: (310) 246-6779

6 JILL A. MARTIN (S.B. #245626) [email protected] 7 TRUMP NATIONAL GOLF CLUB One Trump National Drive 8 Rancho Palos Verdes, CA 90275 Telephone: (310) 202-3225 9 Facsimile: (310) 265-5522 10 Attorneys for Defendant

11 DONALD J. TRUMP 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 ART COHEN, Individually and Case No. 13-CV-2519-GPC(WVG) on Behalf of All Others Similarly 16 Situated, 17 Plaintiffs, DEFENDANT DONALD J. TRUMP’S REPLY IN SUPPORT 18 v. OF MOTION FOR SUMMARY JUDGMENT OR, IN THE 19 DONALD J. TRUMP, ALTERNATIVE, PARTIAL SUMMARY JUDGMENT 20 Defendant.

21 22 Hearing: July 22, 2016 Time: 1:30 p.m. 23 Courtroom: 2d 24 Judge: Hon. Gonzalo P. Curiel

25 26 27 28

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1 I. INTRODUCTION 2 This case was an overreach from inception. It stretches civil RICO beyond 3 the breaking point and would effectively federalize consumer advertising fraud 4 claims, and subject officers, directors, and employees of every Fortune 500 1 5 company to unwarranted personal liability. Plaintiff cites no case that has 6 endorsed the use of civil RICO in remotely similar circumstances. The 7 Opposition’s derisive rhetoric and personal attacks do not mask or compensate for 8 the glaring absence of support for imposing RICO liability in this case, nor do the 9 embellishments of the record and mischaracterizations of law that are replete in the 2 10 Opposition. Summary judgment is warranted because there are no genuine issues 11 of fact on any of the following material issues: 12 • Defendant did not “conduct” the RICO enterprise. Plaintiff conflates defendant’s involvement with Trump University (“TU”) the corporation with 13 defendant’s role in the purported illegality of the RICO enterprise. The 14 evidence he cites does not establish that defendant managed, controlled, or directed any part of the alleged “fraudulent marketing scheme.” 15 • 16 The certified issues are puffery. Tellingly, Plaintiff’s only response to this claim is the erroneous assertion that the law-of-the-case doctrine bars 17 consideration of this issue. To the contrary, the Court’s previous order 18 provided that defendant could prove puffery as a factual matter. And the evidence in this case establishes that the representations at issue were 19 puffery—highly subjective claims as opposed to detailed factual representations. 20 • 21 Defendant did not make false statements. There are no genuine issues of fact that TU shared with students what defendant called his secrets—focus, 22 1 23 RICO has been called “the litigation equivalent of a thermonuclear device.” Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991). 24 2 Plaintiff’s opposition undermines the judicial process. See Cruz v. Comm’r of 25 Soc. Sec., 244 F. App’x 475, 483 (3d Cir. 2007) (“Heated rhetoric . . . like this does 26 nothing to advance a client’s cause. It serves only to distract attention from the merits and to call counsel’s judgment into question.”); DRFP, LLC v. The 27 Republica Bolivariana de Venezuela, 2015 WL 4941193, at *1 (S.D. Ohio Aug. 20, 28 2015).

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1 hard work, tenacity, and some business knowledge. Defendant provided input 2 into the TU curriculum and selecting instructors—first personally and then through detailed guidance provided to TU’s president. Even plaintiff has not 3 been able to define the alleged “university” misrepresentation with precision.

4 • Defendant did not knowingly participate in anything fraudulent. 5 Defendant believed students were receiving the high-quality education in real estate he wanted them to have and were satisfied with TU’s instruction, as 6 evidenced by its approval rating. 7 Defendant’s superficial review of TU’s advertising for branding purposes is 8 the only fact that connects defendant in any way to plaintiff’s allegations of fraud. 9 The fact is wholly insufficient to establish a RICO violation by defendant. There is 10 no evidence in the record that defendant told TU what to put in the advertising or 11 had any input related to substance. The uncontroverted evidence—defendant’s 12 ownership of hundreds of companies, hiring of qualified people to run TU, the use 13 of outside counsel who reviewed all advertising for compliance—shows he did not 14 know about, participate in, or intend to be part of any fraudulent scheme. 15 II. LIBERALLY CONSTRUING RICO DOES NOT SAVE 16 PLAINTIFF’S CLAIM 17 Courts across the country have “overwhelmingly rejected [plaintiff’s] 18 attempts to characterize routine commercial relationships as RICO enterprises.” 19 Gomez v. Guthy-Renker, LLC, 2015 WL 4270042, at *8–11 (C.D. Cal. July 13, 20 2015); Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1087 (9th Cir. 2002) 21 (“Congress enacted RICO ‘to combat organized crime, not to provide a federal 22 cause of action and treble damages’ for personal injuries.”); see Dkt. 280 at 8–10.3 23 3 Curiously, plaintiff argues that defendant “fail[ed] to cite a single Ninth Circuit 24 case” in support of this argument, yet on the next page asserts that one of 25 defendant’s Ninth Circuit cases has “been overruled.” Compare Dkt. 220 at 9, with id. at 10 n.4. On both fronts, plaintiff is wrong. The Ninth Circuit has uniformly 26 cited with approval the legal principle allegedly “overruled”: “RICO is concerned 27 with the repetition of criminal acts, not ‘provid[ing] a federal cause of action and treble damages to every tort plaintiff.’” Nw. Osteoscreening, Inc. v. Mtn. View 28 Hosp., LLC, 2014 WL 4955673, at *6 (D. Idaho Oct. 2, 2014) (quoting Oscar v. DEF.’S REPLY ISO MOT. FOR - 2 - SUMMARY JUDGMENT 13-CV-2519-GPC (WVG)

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1 Plaintiff contends this sensible policy “flatly contradicts” a block quote taken from 2 Odom v. Microsoft Corp., which advises that RICO is to be “read broadly” and 3 “liberally construed.” 486 F.3d 541, 546 (9th Cir. 2007). Plaintiff is wrong. The 4 Ninth Circuit fully embraces a policy of judicial restraint to prevent federalizing 5 state claims that should not, and do not, fall within RICO—“the litigation 6 equivalent of a thermonuclear device,” see supra note 3; Miranda, 948 F.2d at 44. 7 The best evidence of plaintiff’s misinterpretation of civil RICO is the very 8 cases he cites. Not a single case plaintiff cites comes close to approving of civil 9 RICO claims on the garden-variety consumer claims here. See In re Neurontin 10 Mktg. & Sales Practices Litig., 712 F.3d 21, 25 (1st Cir. 2013) (civil RICO case 11 brought against drug manufacturer following federal criminal prosecution for off- 12 label marketing of a drug); United States v. Philip Morris USA, Inc., 566 F.3d 1095, 13 1105–06 (D.C. Cir. 2009) (criminal RICO case against cigarette manufacturers 14 regarding failure to disclose health effects and addictiveness); In re Testosterone 15 Replacement Therapy Prods. Liab. Litig., 2016 WL 427553, at *9 (N.D. Ill. 2016) 16 (civil RICO case against drug manufacturer for off-label marketing scheme). 17 III. DEFENDANT DID NOT CONDUCT THE ALLEGED FRAUDULENT SCHEME 18 To establish that defendant “conducted” the affairs of the alleged RICO 19 enterprise, plaintiff must demonstrate that defendant directed, controlled, or 20 participated in the management of the “alleged fraudulent marketing scheme.” The 21 “operation or management” test articulated in Reves v. Ernst & Young, 507 U.S. 22 170, 183 (1993), governs the Court’s analysis. As Reves explained, 23 The narrow question in this case is the meaning of the phrase “to 24 conduct or participate, directly or indirectly, in the conduct of such 25 enterprise’s affairs.” The word “conduct” is used twice, and it seems reasonable to give each use a similar construction. As a verb, 26 27 Univ. Students Coop. Ass’n., 965 F.2d 783, 786 (9th Cir. 1992) (en banc), noting it was abrogated “on other grounds”); see also Boar, Inc. v. Cnty. of Nye, 499 F. 28 App’x 713, 715 (9th Cir. 2012) (same); Chaset, 300 F.3d at 1087 (same). DEF.’S REPLY ISO MOT. FOR - 3 - SUMMARY JUDGMENT 13-CV-2519-GPC (WVG)

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1 “conduct” means to lead, run, manage, or direct. Petitioners urge us 2 to read “conduct” as “carry on,” so that almost any involvement in the affairs of an enterprise would satisfy the “conduct or participate” 3 requirement. But context is important, and in the context of the phrase 4 “to conduct . . . [an] enterprise’s affairs,” the word indicates some degree of direction. 5 Id. at 177–78 (emphasis added and internal citations omitted);4 accord United 6 States Fire Ins. Co. v. United Limousine Serv., Inc., 303 F. Supp. 2d 432, 451 7 (S.D.N.Y. 2004) (distinguishing between “actual control over an enterprise and 8 association with an enterprise in ways that do not involve control,” noting that 9 “only the former is sufficient under Reves because the ‘test is not involvement but 10 control’”); Ally Bank v. Castle, 2012 WL 3627631, at *14 (N.D. Cal. 2012) (RICO 11 liability limited to “key players” who control a RICO enterprise, not those who 12 participate by “carrying out a part of the scheme”). Plaintiff must prove that 13 defendant was not just a “principal shareholder [who] participated in the 14 management of” TU, but that defendant “conducted or participated, in the conduct 15 of [TU’s] affairs through a pattern of racketeering activity.” Taylor v. Bob 16 O’Connor Ford, Inc., 1999 U.S. Dist. LEXIS 4028, at *8 n.4 (N.D. Ill. Mar. 25, 17 1999) (emphasis in original). 18 Plaintiff cites facts largely irrelevant to defendant’s control or management 19 of the alleged fraud under Reves. Opp’n at 11–12. Most do not involve 20 defendant’s conduct at all: (1) defendant owned a majority stake in TU; 21 (2) defendant was in the promotional video; (3) TU’s marketing featured 22 defendant’s name, quotes, and likeness; (4) defendant had authority to sign checks 23 drawn from TU’s bank accounts; (5) during TU’s Chief Marketing Officer, Michael 24 Bloom’s deposition, he testified that defendant called him “one morning” to suggest 25 placing newspaper ads on odd-numbered pages; and (6) defendant “reviewed and 26

27 4 Unless otherwise noted, all references to “Ex.” refer to the Declaration of David 28 L. Kirman filed concurrently with Defendant’s Motion. See Dkt. 180-2.

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1 had final approval authority” for TU’s advertisements.5 2 Critically, plaintiff’s arguments conflate concepts: direct or indirect 3 participation in the affairs of a corporation with participation in an illegal RICO 4 enterprise. Reves established only the latter is actionable under RICO: “Congress 5 did not intend to extend RICO liability under § 1962(c) beyond those who 6 participate in the operation or management of an enterprise through a pattern of 7 racketeering activity.” 507 U.S. at 184 (emphasis added). 8 Defendant—the CEO of —participates in business 9 decisions concerning over 500 companies affiliated with the Trump Organization. 10 See Dkt. 226-1, Ex. 11 at 1–12 (listing defendant’s affiliation with 515 companies). 11 As the chief executive of a multibillion-dollar business conglomerate, defendant 12 signs checks drawn from affiliate companies’ bank accounts, holds ownership 13 interests in affiliated companies, and interacts with the many different management 14 teams charged with operating these businesses. Under Reves, these facts show 15 defendant does his job, not that he controls or manages his affiliate companies or— 16 as plaintiff incorrectly concludes here—directs the operations of a small marketing 17 department of a small affiliate company that was a small part of his 500-company 18 organization. See, e.g., Cement-Lock v. Gas Tech. Inst., 2007 WL 4246888, at *18 19 (N.D. Ill. Nov. 29, 2007) (“operation or management test is not met simply because 20 there is a business relationship between the defendant and the Enterprise” or 21 “because a defendant performed services for the corporation”). 22 That defendant was “the lone star” of a promotional video (which TU’s 23 marketing team created in 2005 before live events were even a consideration), or 24 that advertisements featured defendant’s likeness, do not create a genuine issue of 25 fact that defendant had no control the alleged fraudulent scheme. 26 Plaintiff’s embellishments concerning defendant’s review of TU’s marketing 27 5 Plaintiff does not dispute that the only relevant conduct under Reves is defendant’s 28 conduct during the class period. DEF.’S REPLY ISO MOT. FOR - 5 - SUMMARY JUDGMENT 13-CV-2519-GPC (WVG)

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1 similarly fail to raise a genuine issue of material fact under Reves. The facts 2 establish defendant, who helped select TU’s original instructors and develop its 3 original content, delegated full management and operational control of TU to the 4 company’s President, Michael Sexton. SOF 14–23. Sexton hired a highly qualified 5 management team, including Directors of Marketing and Operations, as well as 6 outside compliance counsel. Id. at 29–33. Outside counsel reviewed “all . . . ads 7 and marketing materials.” Ex. 2 at 91:21–24. While Sexton periodically reported 8 to defendant and defendant reviewed certain TU marketing materials, SOF 24–25, 9 there is no evidence that defendant reviewed the marketing for anything other than 10 branding, id. at 34, 40. That defendant suggested to Michael Bloom that ads be 11 placed on odd-numbered pages supports this fact—defendant wanted TU’s 12 advertising and his “Brand” visibly portrayed. Critically, TU’s management team 13 and outside compliance counsel—not defendant—were charged to ensure that TU 14 complied with its legal obligations. Id. at 30–32, 47. Nor is there a genuine issue 15 that defendant entrusted TU’s compliance team to do its job and thought they were 16 doing it well, evidenced by students’ overwhelmingly positive reviews of TU 17 courses. Id. at 46. With compliance covered, defendant reviewed advertisements 18 “very quickly.” Id. at 40. Plaintiff speculates that defendant exercised “complete 19 control” over the alleged fraud, yet fails to identify a single instance in which 20 defendant requested a substantive change to marketing materials, or commented or 21 provided feedback on marketing content. See, e.g., Ex. H at 83:2–11 (Chief 22 Marketing Officer testifying that only once was a TU ad not approved by defendant 23 when “the ad actually chopped off part of his head”). 24 Throughout this litigation, Plaintiff has asserted that defendant was 25 “completely absent” from TU, Dkt. 1 at 14, and he cannot now save his improper 26 RICO claim from summary judgment by arguing a conflicting position.6 See 27 6 Plaintiff also argues that ’s purported oversight of TU’s 28 finances can be attributable to defendant “under the doctrines of respondeat DEF.’S REPLY ISO MOT. FOR - 6 - SUMMARY JUDGMENT 13-CV-2519-GPC (WVG)

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1 Espritt v. Saesee, 2015 WL 5173166, at *5 (E.D. Cal. 2015) (“conclusory 2 allegations, empty rhetoric, [or] unsupported speculation” insufficient to overcome 3 summary judgment). 4 IV. PLAINTIFF HAS NO EVIDENCE TO REBUT DEFENDANT’S CLAIM THAT THE ALLEGED MISREPRESENTATIONS ARE 5 PUFFERY 6 Plaintiff cannot dispute that students had vastly different interpretations of 7 the terms “secrets,” “hand-picked,” and “university.” See Dkt. 180 at 14–19. 8 Plaintiff’s only arguments to avoid summary judgment on puffery grounds are that 9 (1) the Court purportedly decided the issue, so the law-of-the-case doctrine 10 precludes reexamination; and (2) the representations are false. Opp’n at 16–19. 11 Plaintiff’s first argument is wrong, and his second argument is irrelevant. 12 The law-of-the-case doctrine does not apply because the Court did not resolve the 13 puffery issue as a factual matter. Defendant’s motion to dismiss was decided on the 14 pleadings, and the Court expressly left the factual issue open. Dkt. 21 at 11 15 (“Defendant may seek to prove . . . [his] statements constituted mere puffery as a 16 factual matter.”). Defendant’s position accurately describes the Court’s prior order 17 and the law. 18 Plaintiff argues that because he believes that TU’s use of the terms 19 “university,” “hand-picked,” and “secrets” was misleading, the representations are 20 not puffery. This is immaterial and not the law: “The distinguishing characteristics 21 of puffery are vague, highly subjective claims as opposed to specific, detailed 22 factual assertions.” Haskell v. Time, Inc., 857 F. Supp. 1392, 1399 (E.D. Cal.

23 24 superior and agency.” This is another mischaracterization of the law. Brady v. Dairy Fresh Products Co. held that a corporate employer “may be held liable under 25 the doctrines of respondeat superior and agency” when the employer “is benefited 26 by its employee or agent’s violations of section 1962(c).” 974 F.2d 1149, 1154 (9th Cir. 1992) (emphasis added). Brady does not apply for a number of reasons: 27 defendant is not a corporation; he’s not Weisselberg’s “employer”; and plaintiff 28 fails to allege, much less prove, that Weisselberg independently violated RICO.

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1 1994); accord Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 2 242, 246 (9th Cir. 1990) (“general” statements are not actionable); Corley v. 3 Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1009 (7th Cir. 2004) (a “generic 4 promise” is not actionable). 5 As evidenced by the depositions in this case, there is no genuine issue of 6 material fact—none—that the words “secrets,” “handpicked,” and “university” 7 were interpreted differently by virtually every student and therefore were vague and 8 highly subjective claims, and not the type of detailed factual assertion necessary to 9 prove fraud. See id. 10 V. THE EVIDENCE ESTABLISHES THAT NONE OF THE ALLEGED MISREPRESENTATIONS WERE FALSE 11 12 Plaintiff offers argument and conjecture, but no genuine proof that TU’s use 13 of the terms “university,” “secrets,” or “hand-picked” was false. 14 TU did not misrepresent its accreditation status or business model. TU fully 15 disclosed that it granted no degrees or academic credits, held its business seminars 16 in hotel ballrooms, and universally marketed live events as practical real estate 17 “workshops.” E.g., Ex. 28. Plaintiff has consistently relied on various grammatical 18 modifiers to paint TU’s advertising in a deceptive light—“elite university,” “actual 19 university,” “accredited university,” “legitimate university,” and “real university.” 20 Critically, in opposition to defendant’s motion, plaintiff fails to offer a single 21 instance in which TU used one of these terms. That plaintiff must add his own 22 adjectives to TU’s marketing materials evidences the lack of merit in this claim. 23 See Espritt, 2015 WL 5173166, at *5 (“conclusory allegations, empty rhetoric, [or] 24 unsupported speculation” insufficient to survive summary judgment).7 25 7 Further, plaintiff’s attempt to again redefine his “university” allegation is both 26 impermissible and a concession that TU did not actually make the certified 27 “university” misrepresentation. Rather than standing behind his “university” claim, plaintiff argues for the first time that the “core of plaintiff’s allegation” is that 28 defendant did not disclose to students that TU was operating “illegally.” Opp’n at DEF.’S REPLY ISO MOT. FOR - 8 - SUMMARY JUDGMENT 13-CV-2519-GPC (WVG)

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1 The alleged falsity of TU’s use of “secrets” is similarly unfounded. Plaintiff 2 provides no evidence to refute that TU shared with students what defendant called 3 his secrets—focus, hard work, tenacity, and business knowledge. These principles 4 were woven throughout TU’s curriculum and teachings. SOF 11, 20. 5 Plaintiff has also failed to raise a genuine dispute that defendant was 6 integrally involved in TU’s personnel decisions. Defendant was personally 7 involved in selecting TU’s original instructors, and he provided direction to Sexton 8 concerning TU’s organizational mission, curriculum, and hiring criteria. Id. at 16– 9 19. That Sexton hired instructors pursuant to defendant’s directions does not create 10 a genuine issue about whether TU’s use of the term “hand-picked” was false. Nor 11 does the promotional video plaintiff references because it contains excerpts from an 12 interview defendant recorded in 2005, when TU was a web-based program and 13 before live events were even considered. Id. at 41–44. Nor does plaintiff provide 14 any evidence this video was played throughout the class period,8 much less that 15 defendant approved, authorized, or adopted the truth of its content. Summary 16 judgment is “decided on the record,” not on speculation “or on the nonmovant’s 17 vision of what facts might someday be unearthed.” Rogan, 267 F.3d at 27. 18 VI. PLAINTIFF FAILS TO RAISE A GENUINE ISSUE SHOWING DEFENDANT KNOWINGLY PARTICIPATED IN A SCHEME TO 19 DEFRAUD, MUCH LESS THAT HE HAD CULPABLE INTENT 20 As explained above, there is no genuine dispute that TU had a compliance 21 department, including outside counsel. Defendant, a businessman, reviewed TU’s 22 20; accord id. at 18–19. Plaintiff never raised his “failure to disclose” theory in his 23 certification motion, the Court did not certify it, see Dkt. 53 at 7, and plaintiff never 24 “prove[d] through extensive analysis that there are no material variations among the law of the states for which certification is sought.” Powers v. Gov’t Emps. Ins. Co., 25 192 F.R.D. 313, 318–19 (S.D. Fla. 1998) (emphasis added). 26 8 Plaintiff offers no facts that the video was played in any year but 2009. See Opp’n 27 at 4 n.2. The deposition testimony of a former TU instructor proves no more because he was not even employed by TU until June 2009. Plaintiff provides no 28 evidence to the contrary. DEF.’S REPLY ISO MOT. FOR - 9 - SUMMARY JUDGMENT 13-CV-2519-GPC (WVG)

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1 advertising “very quickly” for branding purposes. SOF 40. TU’s management 2 team and outside compliance counsel—hired for his expertise in seminar 3 advertising—reviewed the content of TU’s marketing for legal compliance. Id. at 4 30–32. The uncontested evidence establishes that TU was a relatively small 5 investment for defendant, id. at 45, and that defendant, who had a strong interest to 6 protect his Brand, had simply no reason to defraud. Id. at 36–39. 7 Plaintiff’s arguments to the contrary establish no genuine dispute. The 8 assertion defendant “was the TU fraudulent marketing scheme,” and the evidence 9 plaintiff cites concerning the substance of TU’s marketing, are not facts, but 10 arguments, and are also not proof defendant knowingly participated in the alleged 11 fraud. See United States v. Manion, 339 F.3d 1153, 1156 (9th Cir. 2003) (“it is 12 necessary to show willful participation in a scheme with knowledge of its 13 fraudulent nature and with intent that these illicit objectives be achieved”). 14 Nor does plaintiff credibly dispute that defendant wanted TU to provide 15 high-quality instruction to students and help them become knowledgeable real 16 estate investors and successful entrepreneurs. Plaintiff’s purported evidence to the 17 contrary shows only that plaintiff believes defendant “could have” done more to 18 ensure TU students’ success. He “could have” personally interviewed instructors 19 and mentors, he “could have” asked Sexton more questions about live events, and 20 he “could have” reviewed and edited presentation materials for live events. These 21 facts do not retroactively manufacture an intent to defraud.

22 VII. CONCLUSION 23 For the foregoing reasons, defendant respectfully requests that the Court 24 grant his motion for summary judgment in its entirety and dismiss this case. 25 26 27 28

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1 O’MELVENY & MYERS LLP Dated: June 17, 2016 DANIEL M. PETROCELLI 2 DAVID L. KIRMAN 3 4 By: /s/Daniel M. Petrocelli

5 Attorneys for Defendant DONALD J. TRUMP 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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