E. Jean Carroll v. Donald J. Trump and United States of America (poll added!)

[RTH10260]

MTN Ben Meiselas comments on above too also

► Show Spoiler

[chancery]

The voice of experience:

https://twitter.com/RMFifthCircuit/stat ... 9490564281

Raffi Melkonian
@RMFifthCircuit
Fwiw, it is often a crazy rush to get stay papers together before the federal 30 day automatic stay expires, but I get Judge Kaplan’s point too.

Adam Klasfeld
@KlasfeldReports
Judge Kaplan's opening for this short order is a pretty sharp dig at Trump's attempt to delay the enforcement until right before the wire.

He rejected that attempt — and set briefings for a stay on course for quick adjudication.

Raffi Melkonian
@RMFifthCircuit
It’s not the brief. I can write that overnight. It’s figuring out what *can* be bonded or offered as security in lieu of the full amount

[MN-Skeptic]

erica orden
@eorden

In response to Trump’s motion for a stay of enforcement of judgment in Carroll, Carroll’s lawyers call his request “the court filing equivalent of a paper napkin; signed by the least trustworthy of borrowers”

https://storage.courtlistener.com/recap ... 03.0_1.pdf

[raison de arizona]

Almost one month after the jury returned its verdict in this case, Defendant Donald J.
Trump filed yet another motion for a stay—this time, to stay enforcement of the judgment without
a bond or any other security that would ensure that Plaintiff E. Jean Carroll’s will be able to collect
the $83.3 million that Trump now owes her. The reasoning Trump offers in seeking this
extraordinary relief boils down to nothing more than “trust me.” He doesn’t offer any information
about his finances or the nature and location of his assets. He doesn’t specify what percentage of
his assets are liquid or explain how Carroll might go about collecting. He doesn’t even
acknowledge the risks that now accompany his financial situation, from a half billion-dollar
judgment obtained by the New York Attorney General to the 91 felony charges that might end his
career as a businessman permanently. He simply asks the Court to “trust me” and offers, in a case
with an $83.3 million judgment against him, the court filing equivalent of a paper napkin; signed
by the least trustworthy of borrowers.

More broadly, Trump is certainly not an example of someone who has fostered
transparency or trustworthiness when it comes to his financial situation. Two of the trials discussed
above—the Manhattan District Attorney criminal case and the New York Attorney General civil
lawsuit—deal with financial impropriety. In the Manhattan District Attorney prosecution, Trump
stands accused of criminal falsification of business records. See People v. Trump, 71543/2023
(N.Y. Sup. Ct.). In the Attorney General lawsuit, Justice Engoron already found numerous
instances of financial fraud committed and aided by Trump himself: Trump “repeatedly falsified
business records with the intent to defraud” and knowingly issued false financial statements that
misstated his “financial condition or ability to pay” in some material respect. NYAG Op. at 80. As
Judge Engoron further observed, such financial impropriety did not stop when the court appointed
an Independent Monitor (former Southern District of New York Judge Barbara S. Jones) to oversee
the Trump Organization during the pendency of the fraud proceedings. The Independent Monitor
reported that Trump and his co-defendants had inappropriately transferred approximately $40
million in assets out of the Donald J. Trump Revocable Trust without notifying her, and “submitted
disclosures to third parties that fail[ed] to include significant liabilities” as recently as January
2024. NYAG Op. at 86. To add a rotten cherry on top, in seeking to stay the Attorney General’s
enforcement of the state court judgment, Trump “attempt[ed] to change the business address of six
entity Defendants to Florida [even] as the record established those entities are located in Trump
Tower at 725 5th Avenue in New York.” People v. Trump, No. 452564/2022, NYSCEF 1695.
These judicial determinations that Trump has lied about his financial situation, violated rules
meant to ensure compliance, and attempted to shift the address of his assets all underscore the need
for a supersedeas bond to protect Carroll’s interest in the judgment here.

Trump’s behavior over the past decades further supports that conclusion. After running for
office and being elected president, Trump engaged in a four-year battle to keep his tax returns
private, bucking the decades-long, standard practice of presidential candidates giving the public
accurate information about their financial situation. George Petras & Javier Zarracina, A Complete
Visual Timeline of the 4-Year Legal Battle over Donald Trump’s Tax Returns, USA Today (Dec.
30, 2022).7 Even before that, Trump maintained a long history of attempting to skirt his debts:
between 1990 and 2009, his companies declared bankruptcy six times. See Michelle Lee, Has
Trump Declared Bankruptcy Four or Six Times? Wash. Post (Sept. 27, 2016)8
; see also David
Enrich, Russ Buettner, Mike McIntire & Susanne Craig, How Trump Maneuvered His Way Out of
Trouble in Chicago, N.Y. Times (Oct. 8, 2021).9 Of course, Trump also has a history of outright
refusing to pay people what he owes under the law, as some of his former lawyers have reportedly
experienced. See Steve Reilly, Hundreds Allege Donald Trump Doesn’t Pay His Bills, USA Today
(June 9, 2016).

[p0rtia]

Music to the ears.

Tx.

[chancery]

Carroll's lawyers usually write good papers, and this brief is quite strong.

First, they flag Trump's remarkable failure to support his factual assertions with any form of evidence at all (also notable in Trump's application before the First Department for a stay of the New York civil fraud judgment.)

A second and separate reason to deny Trump’s motion is his complete failure to carry his evidentiary burden. Rule 62(b) does not require courts to engage in guesswork or speculation, or to accept a party’s assertion that they are good for the money at face value. In fact, the entire premise of Rule 62(b) is that parties with judgments against them must pay those judgments expeditiously, or must instead come forward to affirmatively prove that the money is available and will be readily collectable if they lose their appeal.

Here, Trump makes no effort whatsoever to carry this burden. There is not a single exhibit, declaration, or affidavit—literally, no evidence at all—attached to his motion. He offers no proof of what assets he possesses, what they are worth, where they are located, whether they are liquid or illiquid, whether they are unencumbered by debt, or whether they could be used to satisfy the judgment. He offers no evidence of other debts he might currently owe or may come to owe in the months ahead. He provides no demonstration that any of these assets are readily collectible and will remain readily collectible throughout the pendency of an appeal. And he says nothing about how developments in his life, including active criminal proceedings and his election campaign (among others), may affect these matters. As to every single legally relevant consideration under Nassau, Trump is either totally silent or offers merely his unsworn say-so. These shortcomings, of course, are reason alone to deny Trump’s motion. Brief at 4-5.

And Carroll's lawyers respond well to an argument that was a centerpiece of Trump's moving brief.

Attempting to side-step his burden, Trump claims that Caroll has “conceded” he is good for the money and is now somehow precluded from suggesting otherwise. Mot. 12. That argument is as baseless as it is misleading. To support it, Trump points to evidence that Carroll introduced at trial concerning his wealth. Id. (citing Ex. 1 (“Tr.”) at 720-21). But evidence that Carroll offered at trial to support punitive damages is not a proper basis for Trump to seek to carry his own burden in this post-trial setting: it was his duty to offer evidence at this stage—and he offered none. Moreover, even if it were properly considered, the limited evidence that Carroll offered at trial comes nowhere close to carrying Trump’s current burden under Rule 62(b). As the Court will recall, that evidence consisted of short excerpts from Trump’s testimony in a suit filed by the New York Attorney General accusing him (and others) of financial fraud. It was highly generalized and reflected only how Trump subjectively understood the value of his own assets and net worth at two points in 2023. See Ex. 2, Ex. 3. The testimony was unspecific concerning Trump’s actual net worth and distribution of assets; it included no testimony about how collectible those assets are; it did not address other debts or obligations that may affect the value or collectability of his assets; and it did not account for significant developments that have occurred since 2023 and that almost certainly had a significant impact on his overall financial position (see infra at 7-10). Moreover, Trump’s testimony in a case where he was ultimately held liable for financial misconduct is hardly the most reliable evidence of his current financial situation and Carroll’s ability to collect in any event. Brief at 5-6.

And a couple more nice touches.

[W]hat Trump proposes here is nothing at all. In support of his position, he fails to cite a single controlling (or even persuasive) case. Instead, he gestures to a handful of scattered out-of- circuit district court cases, most of which were decided, as teenagers say today, in the “last century.” Brief at 3

Trump’s reliance on, for example, a decades-old Eastern District of Louisiana unpublished decision reveals everything the Court needs to know about the strength of his position.. Brief at 14-15 n.12.

[Sam the Centipede]

Nice to see that you clearly enjoyed the brief from Carroll's lawyers!

These scorched earth demolition jobs can be fun to read, especially if one skips lightly over some of the double dotting of 'i's and the triple crossing of 't's, which is understandably necessary for court application but doesn't enhance readability for amused browsers.

[chancery]

There's probably more vulnerability to the verdict than Carroll's lawyers concede. Assigning a monetary value to emotional injury is not an exact science. Even though judges are supposed to defer to the jury's fact-finding unless it's against the weight of the evidence or otherwise egregious, there might be some squishiness in Carroll's damages evidence that will make Kaplan unhappy,

And the damage awards are high. There are federal judges (I'm thinking particularly of some notables on the Seventh Circuit) who feel acute horror at the possibility of a plaintiff's receiving a few dollars more than the stingiest possible computation of her damages, but contemplate with equanimity great injuries which go uncompensated for any number of technical reasons. As my torts professor was fond of saying: "Too bad; so sad."

Also, federal judges tend to be deeply suspicious of punitive damage awards, largely for good reasons: they aren't regulated by any coherent policy and are capriciously available to only a tiny minority of people who have been injured by outrageous conduct.

So it wouldn't surprise me if the Carroll verdict gets a haircut, although I'm not basing this on an assessment of federal punitive damages jurisprudence or of the evidence or of Kaplan's track record, only on the fact that big verdicts are frequently reduced.

However, the factors to be considered on this motion include whether the defendant has made a strong showing of likelihood of success in obtaining a reduced verdict. I don't believe that Trump has made a strong showing, and his showing on the other factors ranges from poor to clown shoes (as former TFB member Mike Dunford would say).

FInally, there's a relatively minor point that irks me. Trump complains that he will be unfairly injured if he pays the premium for a $91 million bond and Judge Kaplan later reduces the judgment. But it would be strange if he could not negotiate for this contingency, so that the bond amount and the premium would be reduced in case the verdict is reduced from $83 million to a much lower figure. Possibly it can't work that way, but there's no reason to assume so without some evidence. And Trump hasn't submitted evidence of anything.

[Sam the Centipede]

And Trump hasn't submitted evidence of anything.

That's a real kicker, isn't it? The Trump submission can be (fairly?) paraphrased as "waaaahhhh!! don't like it!!" which even us non-leagles recognize as not a winning argument outside a kindergarten. Carroll's lawyers don't have a responsibility to highlight any potentially winning arguments that might be nuggets among the turds, so theirs is not an impartial critique, but they appeared to demolish enough of the Trumpian whingefest.

Even if the punitive damages element is slashed, even by a large percentage, there's still plenty of cash that Trump (or Trump's backers) have to find and Carroll to enjoy.

[chancery]

Judge Kaplan ordered Trump to file his reply brief in support of his motion to stay enforcement by 5:00 pm today.

He filed it early, which was a good move on the part of his lawyers.

https://storage.courtlistener.com/recap ... .306.0.pdf

I haven't read it.

[Reality Check]

Trust me. I am good for the money!

Cites several cases where no appeal bond was required. I am sure they were pretty easy to find such as a judgment against Nassau County for illegal strip searches.

[chancery]

I'm not really sure what Judge Kaplan is going to do. Some disconnected thoughts, as a distraction from the other news of the day.

-- Perhaps Trump's strongest argument could have been that he's asking for a brief stay. If he had made a factual showing, even a conclusory one, to the effect that obtaining the bond was proving difficult but he expected to have it in three to five weeks, the judge might have been ok with it.

OTOH, he didn't make such an argument; he requested an open-ended stay, until resolution of post-trial motions. Resolution of those motions could take a number of months, and it's not unheard of resolution of such motions to take the better part of a year, or longer. There are sure to be a number of complex cases on Judge Kaplan's plate that are much more pressing than Trump's motion for a new trial/alteration in the judgment. The judge might resent the idea that he needs, in effect, to commit to a prompt resolution by accepting the premise that a stay that he issued would be "brief."

-- It might be a little too pat to say that the motion should be peremptorily denied for failure to to make a factual showing; good judges try to do the right thing notwithstanding the failings of counsel.* If Judge Kaplan has in mind that he will likely rule in favor of a reduction of the judgment, he _might_ have some sympathy with Trump's argument. And it's possible that he does have that in mind. There aren't really satisfactory standards for assessing Carroll's damages in this kind of case, or for assessing punitive damages. If the jury had returned a total verdict within the range that Trump's lawyers say would have been appropriate, $25-30 million, I don't think it would have occurred to me that it was shockingly low. Now that the jury has returned a verdict the totals $83.3 million, I feel protective of it, but I'm not sure that it would be an injustice if it were reduced by half.

-- Then there's the judicial estoppel question. I think that Carroll's lawyers are correct that the amount of adequate security under Rule 62 is not the same issue as the amount of Trump's wealth for the jury's purposes of evaluating of the amount of a punitive damages award. So I don't think that, strictly speaking, Carroll is estopped from denying that Trump's wealth is so great that requiring a bond is pointless. Compare New Hampshire v. Maine, 532 U.S. 742 (2001), where New Hampshire, which had stipulated in prior litigation to the location of its border with Maine, could not take a contradictory position in different litigation 25 years later. OTOH, the issues aren't unrelated, and the judge might give the argument some thought.

And there's another twist. The lawyers for both sides, as well as the judge, know that Trump's "subjective" estimate of his wealth contains great heaping components of exaggeration and sheer bullshit. So it might seem unfair to assess the adequacy of security principally on the strength of that testimony. On the other hand, Carroll's lawyers were fully aware of the bullshit component when they introduced that testimony. I'm not sure how this aspect plays out.

-- Finally, one well established ground for permitting security to be posted that's less than the full amount of the judgment occurs in the case of financially troubled companies, out of concerns for potential unfairness to other creditors. See Olympia Equip. Leasing Co. v. Western Union Tel. Co., 786 F.2d 794 (7th Cir. 1986). In that case, Western Union "a large company, with total assets nominally worth $2 billion, [was] financially distressed and illiquid." After wringing its hands a good deal, the court eventually affirmed a district court's order allowing the plaintiff to secure a $46 million judgment with "a pledge of $10 million in cash, $10 million in accounts receivables, and a security interest, which Western Union Telegraph represented to be worth about $70 million, in some of the company's physical assets."

Trump's lawyers don't admit that he is financially distressed or claim that Judge Kaplan should be concerned about other creditors, but the showing made by Carroll's lawyers might prompt the judge to have such thoughts.

We'll probably hear from Judge Kaplan before the 30-day automatic stay runs out.

_________
* I've only read a couple of the cases cited by Trump. They don't help him very much. It's possible that if I read them all I'd feel more confident that Judge Kaplan will issue a curt denial of the motion.

[chancery]

https://storage.courtlistener.com/recap ... .307.0.pdf

On Friday, February 23, 2024, the defendant moved for an unsecured or partially secured stay of execution on plaintiff's judgment pending the disposition of post-trial motions. No post-trial motions have been filed yet. Moreover, briefing of the defendant's stay motion was not completed until the late afternoon of Saturday March 2, 2024. Nevertheless, the Court is aware of defendant's request for a decision on the stay motion no later than today "to allow time for [him] to finalize arrangements for an appropriate bond if necessary." Dkt 287, at 21.

A decision will be rendered as promptly as is reasonably possible. Without implying what that decision will be or when it will be made, however, it will not come today.

SO ORDERED.

[Sam the Centipede]

And there's another twist. The lawyers for both sides, as well as the judge, know that Trump's "subjective" estimate of his wealth contains great heaping components of exaggeration and sheer bullshit. So it might seem unfair to assess the adequacy of security principally on the strength of that testimony. On the other hand, Carroll's lawyers were fully aware of the bullshit component when they introduced that testimony. I'm not sure how this aspect plays out.

As a non-lawyer I consider the implicit? explicit? argument that "the defendant persistently claims he is *this* rich so you should assess damages on that basis" to be fair.

Also that "I claimed to be *this* rich but now it's a problem to access that wealth" merits a "hard cheese, old boy, suck it" response.

But I don't know how that makes into the judicial process.

Trump's lawyers don't admit that he is financially distressed or claim that Judge Kaplan should be concerned about other creditors, but the showing made by Carroll's lawyers might prompt the judge to have such thoughts.

There's that, but in all other respects, consideration for Trump should be minimal – he is the agent of his own problems.

As always chancery, we appreciate informed insight.

[Foggy]

Kaplan:

[chancery]

A decision will be rendered as promptly as is reasonably possible. Without implying what that decision will be or when it will be made, however, it will not come today.

I can't recall seeing such an order before. In light of Judge Kaplan's expressed concern for Trump's situation, it's surprising to me that we didn't see a short order disposing of the motion and advising that a full memorandum decision would follow when it was ready, something that judges do regularly when there's a time crunch.

It suggests that Judge Kaplan hasn't made up his mind yet, or at least is still pondering some aspects of the disposition. That itself is a little surprising to me, although we don't know whether it's due to an issue that he finds challenging or due to the press of other work in chambers. If the clerk's bench memo wasn't ready when yesterday's order was issued, the judge might not have even started thinking about what his decision will be.

[p0rtia]

To me it suggests that Kaplan is seriously pissed off.

Fuckhead had demanded that Kaplan respond "today," right? Hence Kaplan's chilly "It won't be today."

My IANAL guess is that he will proceed in due course.

[chancery]

Yeah, it's possible that Trump's counsel has been calling chambers, something that takes experience and tact to be able to do to without seriously pissing off the judge and chambers staff.

But I suspect that if he was really pissed off, he'd just ghost them.

[chancery]

https://twitter.com/Acyn/status/1765013739965714868

Acyn
@Acyn
Kilmeade: You have to come up with $400 million, how close are you to securing the bond?

Trump: I have a lot of money. I can do what I want to do.

Kilmeade: So you’re not worried about the money?

Trump: I don’t worry about money

[chancery]

https://twitter.com/RMFifthCircuit/stat ... 6137441537

Raffi Melkonian
@RMFifthCircuit
I sort of assume we're going to get Judge Kaplan's denial of Trump's motion to stay enforcement without bond in the E. Jean Carroll appeal today.

[Slim Cognito]

Yeeeaaaaah, riiigghht.

[chancery]

A letter from Carroll's counsel, dated and filed yesterday, although it didn't show up in courtlistener until today.

https://storage.courtlistener.com/recap ... .308.0.pdf

We write in brief response to Defendant Donald J. Trump’s reply memorandum in support of his motion to stay execution of the judgment, ECF 306, where he (incorrectly) claims that we mischaracterized Second Circuit law concerning Rule 62(b), id. at 1. Specifically, Trump points to In re Nassau County Strip Search Cases, where the Second Circuit stayed enforcement of the judgment “without the posting of a bond or other condition.” 783 F.3d 414, 417 (2d Cir. 2015). But the Second Circuit did so only because the defendant Nassau County, a governmental entity, had affirmatively “demonstrated the existence of appropriated funds, available for the purpose of paying judgments without substantial delay or other difficulty.” Id. at 418 (citation omitted). This is fully consistent with our position: “to secure relief from the normal requirement of posting a bond, the requesting party must offer some ‘alternative means,’ the whole point of which is to make sure the appellee will be made whole in the event she succeeds on appeal.” ECF 303 at 3. In Nassau, those alternative means consisted of a dedicated and readily collectible governmental
appropriation; here, in stark contrast, Trump offers no alternative means other than his own unsubstantiated say so that he will have $83.3 million available when Carroll prevails on appeal.

While I'm a big fan, as the result of painful experience over many years, of not letting yourself get sandbagged, I'm surprised that Carroll's lawyers felt the need to submit this. The fact that Nassau County had appropriated funds for the judgment stands out in the decision like a neon sign. Judge Kaplan's clerks would have realized that without prompting.

Further, sur-replies are not provided for in the rules and are disfavored except when there's a real problem that could not have been anticipated. It's true that Trump's lawyers didn't cite Nassau in their opening brief. However, Carroll's opposition brief did discuss Nassau. It comes off as a bit lame to submit a sur-reply to make an additional obvious point about a case that they probably could have included in their prior extensive discussion.

While it won't make any difference to the outcome, I don't think that Judge Kaplan and his clerks will find this letter useful or appropriate. I suspect that Carroll's lawyers are more worried about this motion than the tone of their papers would suggest.

Meanwhile, Trump's lawyers have submitted post-trial motions, for a new trial and for judgment notwithstanding the verdict. I've included links to the briefs, which I haven't looked at.

https://storage.courtlistener.com/recap ... .312.0.pdf

https://storage.courtlistener.com/recap ... .310.0.pdf

[Rolodex]

So I think he has to post a bond by this weekend (like the 7th), which would explain why they asked the judge for a quick answer. His "no answer today" seems worse than I thought at first because of this deadline. I'm still unclear about posting bond vs putting up the money vis a vis an appeal. A Newsweek article I read said he has to put up a bond by this weekend. But the appeal is due by 3/25?

I'm confused on the timeline and actions on this case.

[much ado]

Newsweek article says March 9...

Donald Trump Faces Critical Deadline in E. Jean Carroll $83.3M Payment

ETA: My guess that if bond is not posted, they will start by draining bank accounts.

[chancery]

Bad legal takes from the Newsweek article:

In the state of New York,* as previously reported by Newsweek, an individual must pay a court a cash bond that amounts to 110 percent of the judgment to appeal the ruling of a civil case. That means that Trump has until March 9 to pay more than $91 million if he wants to challenge the defamation penalty.**

_________
* This is a federal case, although the requirement of a 110 percent bond appears to be similar in both NYS courts and in SDNY.

** if he wants to prevent execution on the judgment from starting. Has nothing to do with his ability to appeal, the deadline for which won't in any case be until resolution of Trump's post-trial motions. Also, "penalty" is usually used to refer to criminal liabilities. This is a civil liability, including the punitive damages award.