College responds to alumni lawsuit
By Hank Nelson, The Dartmouth Staff
Published on Wednesday, February 4, 2009
Dartmouth filed its official response to the ongoing alumni lawsuit again the College on Tuesday, arguing that the legal action is without merit and that the plaintiffs do not have grounds to sue, according to the College's general counsel, Bob Donin.
In its answer to the lawsuit, the College denied the legitimacy of 77 of the plaintiff's claims, often with terse, one-sentence explanations.
The current suit is the second in two years to involve parity on the College's Board of Trustees between the number of Board-selected and alumni-elected members. The Association of Alumni first brought suit against the College in October 2007, following the Board's decision to add eight Board-selected trustees to its membership. The suit argued that an 1891 Board resolution legally bound the trustees to maintain parity. The suit was withdrawn this spring after alumni opposed to the suit won election to all 11 seats on the Association's executive committee.
The legal ramifications of the 1891 resolution are again at issue in the current suit.
In its brief responding to the current legal action, the College argues that allegations of breach of contract and breach of implied-in-fact contract are without merit, contending in part that the plaintiffs did not uphold their side of the bargain if the 1891 resolution was actually a contract.
"The answer denies the plaintiffs claim of a contract and affirms the right of the Board of Trustees to determine the size and the composition of the Board that is best for Dartmouth," Donin said.
The College's response also denies that the petitioners have legal standing to sue.
Eugene Van Loan, who represents the seven alumni who filed the suit, told The Dartmouth in a previous interview that his clients were third-party beneficiaries to the 1891 resolution, which he said he believes was a contract between the Board and the Association.
Proving that the plaintiffs are third-party beneficiaries will be a "significant issue" in the case, Van Loan said.
"The real question that the [College] will undoubtedly ask is whether or not the plaintiffs have the same legal standing as the Association would have," Van Loan told The Dartmouth in January.
Van Loan could not be reached for comment by press time.
The College's response also argues that the lawsuit is without merit because of the doctrines of collateral estoppel and res judicata -- simply put, that litigation cannot be filed for a case that has already been decided or that involves the relitigation of an issue between the two same parties. The College appears to be directly referencing the Association's fall 2007 lawsuit.
The College further argues that the petitioners have no right to sue to enforce an alleged contract between the Association and the College because Dartmouth alumni voted not to pursue the lawsuit by electing candidates critical of legal action in the last Association election.
"It is regrettable that several alumni would try to revive a meritless lawsuit that alumni overwhelmingly rejected," Donin said.
The brief also states that the contract is not viable because the 1891 resolution does not meet the requirements of the statute of frauds, a uniform act regulating contracts that has been adopted by all 50 states. The statute of frauds states that a contract between two parties that cannot be completed within one year must be made in writing.
"The lawsuit is an unwarranted drain on College resources that Dartmouth can least afford under the economic circumstances," Donin said.
The original version of this article stated that, in its response to the alumni lawsuit against the College, the College admitted to two of the plaintiff's claims and denied the legitimacy of 77 others. In fact, the two claims recognized by the College were not legal claims, but instead statements of fact.