Hearing held for alumni lawsuit

| 12/5/09 5:27pm

NORTH HAVERHILL, N.H. The alumni lawsuit filed against the College's Board of Trustees in November 2008 finally had its day in court on Friday in a hearing for the College's request for summary judgment, an attempt to have the judge, Timothy Vaughan, decide the case before it goes to full trial.

The current suit is the second legal challenge to the Board's fall 2007 decision to increase its size, ending the balance between the number of trustees selected by the Board and elected by alumni.

Counsel for both sides spent much of their time on Friday arguing whether the case should be dismissed as a result of the doctrine of res judicata, by which litigation cannot be filed for a case that has already been decided or that involves the re-litigation of an issue between the two same parties. The College argues the current lawsuit is a repeat of the matter brought before the court by the Association of Alumni in October 2007.

Richard Pepperman '87 of the New York law firm Sullivan and Cromwell, speaking for the Board of Trustees, argued that res judicata is applicable to the current case. He claimed that the plaintiffs were bound by the decision made by Association's executive committee in June 2008 to withdraw the previous suit against the College with prejudice, meaning that another case cannot be filed on the same basis as the one dismissed.

"The only element that plaintiffs really dispute, and that indeed can be disputed here, is whether the plaintiffs in this lawsuit were in privity with the Association," Pepperman said. "The answer to that question, your honor, is yes, both on the law and on the facts."

Pepperman presented what he called "an easy case" for the application of res judicata, pointing out, among other things, that the officers in charge of the Association were representative of the College's alumni at large and that the current plaintiffs are bound to the previous decision because they are alumni and, as a result, members of the Association.

Pepperman also said that the role of John MacGovern '80 in both of the lawsuits was grounds for res judicata. He claimed that MacGovern played a central role in the previous alumni lawsuit and was in privity with those who had filed it. MacGovern is also central to this lawsuit, Pepperman said, because he is litigating "through proxy."

MacGovern, through his nonprofit Hanover Institute, has been instrumental to the funding of both legal efforts.

According to Eugene Van Loan, the attorney for the plaintiffs, the College would have a much better case for res judicata had the previous lawsuit against the College gone to trial and been dismissed. He also argued against the College's claim of MacGovern's involvement in the current case.

Van Loan presented an amicus brief filed by former Dartmouth Trustee Todd Zywicki '88 suggesting that the court deny the College's motion for summary judgment. Van Loan said that the amicus brief presented certain "essential truths" about the case.

Several alumni leaders and College officials were at the Grafton County Superior Court to hear the case. Frank Gado '58, a former member of the Association's executive committee who has supported both lawsuits, sat with Joe Asch '79, who has written about the subject in guest columns in The Dartmouth and, more recently, online at Dartblog.com. Gado expressed shock at some of Pepperman's allegations, especially those involving MacGovern. He repeatedly shook his head and whispered "that's just not true" when Pepperman was making his claims.

Diana Pearson, the College's vice president for communications, was also at the meeting, as was Marcia Kelly, the secretary to the Board of Trustees.

The College issued a formal statement after the hearing, reiterating that Dartmouth's counsel finds the lawsuit to be "meritless" and that it hopes the judge will grant the College's appeal for summary judgment.

The court's decision on the matter is expected in January.