Tuesday, February 05, 2008

Summary of What Exactly the Court Ruled On

The College raised three points in their motion for dismissal. The judge denied all three. Here's a 'cliff notes' version of his decision:

  1. The Board’s action in 1891 was legitimate because it was ratified by both the Board and the Association.
  2. The Association has established sufficient evidence “to proceed with a claim for an implied in fact contract."
  3. The Association has an established claim in promissory estoppel.
From what little I understand about lawsuits*, this current ruling means that if in the 'actual trial' the Association of Alumni can prove that all three of the above points are 'actually' true then they are entitled to relief. At this stage the judge has basically assumed that all three points are true; the Association's job is now to prove that they are, in fact, true.

*Not much.

UPDATE: There's some confusion on whether the Association will have to prove all three points or just one of them. See first comment.

28 comments:

Anonymous said...

Close, but not quite accurate, A.S.

The court ruled that the Motion to Dismiss failed for EACH of the three reasons that you state above.

If the AoA can prove ANY of these three points at trial, then they will prevail on the litigation.

Summary: For all of the Wright Administration's blustering about being on solid legal ground in packing the court, Jim got HOSED by the judge.

I bet that the College does not even appeal this decision.

In fact, one has to wonder if the judge is not signaling his final decision at trial. After all, there aren't going to be any surprise witnesses at the final proceeding. Almost all of the evidence is documentary and has been put before the court.

Anonymous said...

You can't appeal a denial of a motion to dismiss, anyway. There are very few circumstances that allow for interlocutory appeals, otherwise you have to wait for the case to be resolved one way or another before moving forward in the appellate process. A denial of a motion to dismiss merely allows the case to move forward, and therefore cannot be appealed. Had the motion to dismiss been granted, the AoA could have appealed because it would have ended the case.

Additionally, the AoA will still have to prove its prima facie case at trial, namely that there was a contractual agreement and that equity demands that the proposed action be barred by promissory estoppel. A denial of a motion to dismiss merely means that enough questions of fact are present that a reasonable trier of fact could find for the AoA. It does not signal that the AoA is likely to win, it merely signals that there are some legal questions to be sorted out.

Anonymous said...

In this case, where virtually of of the evidence is documentary from 1860-1991 and has been put before the judge, that won't be too much to dispute at trial.

So the Motion to Dismiss ruling carries more weight than in a trial where the credibility of witnesses, etc. is more important.

Anonymous said...

Ooops!

In this case, where virtually of of the evidence is documentary from 1860-1891 and has been put before the judge, that won't be too much to dispute at trial.

So the Motion to Dismiss ruling carries more weight than in a trial where the credibility of witnesses, etc. is more important.

February 05, 2008

Anonymous said...

The parties are in the same position they would have been in if the Board had not filed a motion to dismiss. "Jim" did not get "hosed." That's like saying Saddam was guaranteed to win when America's pre-war decapitation strike failed to kill him. We all know how that turned out.

What exactly does Frank Gado think he's going to find in discovery, anyway? The guy brags about how much time he spends in Rauner -- really, how much of the information from 1891 is being kept secret by anyone?

Anonymous said...

As I understand the court's opinion, the first comment is right.

The gist of the AoA's suit is that in 1891 the College and the AoA formed some kind of binding agreement that included a commitment to parity on the Board of Trustees, and that the College has reneged on that agreement.

The three things in the post are three alternative legal ways that the AoA has framed its claim. I.e.:

The idea behind (1) is that the "1891 agreement" meets all of the formal elements of an enforceable contract

The idea behind (2) and (3) is that even if the 1891 agreement doesn't meet all of the formal elements of a contract, it's still a promise enforceable in court under other legal theories. I'll take a closer look at the opinion when I have time.

Even though the College might ultimately win the case, this is a significant setback. Early motions to dismiss often weed out frivolous lawsuits at relatively little expense. This means that the case is real and that the College has to put significant time and expense into a defense unless it wants to settle.

Anonymous said...

No, the first comment is not right.

Anon. 1:23, your basic summary is unobjectionable, but the first comment is out in left field:

"For all of the Wright Administration's blustering about being on solid legal ground in packing the court, Jim got HOSED by the judge.

"I bet that the College does not even appeal this decision."

That's wacky. The "bluster" about being solid legal ground is not bluster at all, since the Board really is on solid legal ground. The survival of the lawsuit does not mean the Board is not on solid legal ground, and nobody got "hosed." And why would you use the phrase "packing the court"? Is that a Freudian slip? Are you Stephen Smith?

Isn't the term "packing" unnecessarily pejorative anyway, since it implies a duty to elect alumni trustees that has never been established and probably (assuming the alumni can't prove this vague unwritten agreement they've been talking about) won't be? Sure, calling it "packing" tells us you're an uncritical partisan, but do you really want to give that impression?

Anonymous said...

Geez, Meacham, will you stop with the idiot definition games. Next thing you'll be telling us is that the whole case depends on the defintion of what "is" is.

1:23 said...

I should have been clearer. The second sentence of the first comment is basically right. The rest of it is either hogwash or irrelevant.

Anonymous said...

I should have been clearer. It is the first sentence of the second comment that is basically right. The rest of it is hogwash and irrelevant.

1:23 said...

I'm note sure who posted at 3:39, but it wasn't me.

8:25 said...

1:23- It should be obvious to all that you and 3:39 are not the same. The parody in the response was apparent. Also the improved use of language.

Anonymous said...

Obviously the work of the Wright-bot.
http://dartlog.net/2008/02/haldeman-denies-connection.php#c617161180341791124

Anonymous said...

After reading the judge's order, it appears the that the court made at least two definitive rulings not prefaced by "interpreting the facts in the favorable light...". The Court in regard to "Capacity and Authority to Contract" ruled in favor of AoA in in regard to "Judicial Estoppel" ruled in favor of the College.

The capacity and authority ruling would seem to be the more important one. As a basis of this ruling, the judge appeared (to this layman) to rely on the empirical evidence of 100 plus years of performance.

On this same basis, it would seem that the College will have little luck in arguing against the existence or enforceability of some agreement.

Methinks it all will come down to defining the terms that were agreed to. (i.e. was it a fixed number or fixed percentage of seats agreed to)

If again performance is a determining factor, all board increases since 1891 plus the spectacle of the alumni constitution vote would not exactly appear to favor the College's position.

Anonymous said...

The alumni constitution vote is not evidence of performance or nonperformance by either side.

How anyone could derive the idea of "half of the elected trustees" from the board's resolutions (which literally say "five," "two [more]," etc.) is beyond me. As is the idea that the board would have entered into a contract it knew was prohibited. The board said it couldn't amend the charter and would just let alumni nominate people instead.

Anonymous said...

Not exactly, but certainly behavior. Why exactly would the board have gone through the whole process and EVERYTHING it entailed if they did not believe it was necessary to do so.

Does ANYONE truly believe that had they simply expanded the board by fiat originally rather that put the issue to the alumni first, the backlash would have in any manner so severe, or that that they would have been challenged in the manner they have in the actual event.

Were they too stupid to realize that it was a no win position to seek approval from the alumni for something which they did not need alumni approval to do and which they were going to do anyway?

Its either that or because they believed it a necessary.

Anonymous said...

"Why exactly would the board have gone through the whole process and EVERYTHING it entailed if they did not believe it was necessary to do so?"

Because the board probably believes it is required to govern Dartmouth College in accord with the law and the charter. The charter says the board elects the elected trustees by majority vote. It doesn't say how they are nominated. So the board elects every nominee, whether from an internal committee or alumni. That's why the board goes through the process of electing new trustees.

"Does ANYONE truly believe that had they simply expanded the board by fiat originally rather that put the issue to the alumni first the backlash would have in any manner so severe, or that that they would have been challenged in the manner they have in the actual event."

Of course not. The board probably would have generated even less controversy if it had never come up with the idea. But it's not the board's job to try to avoid offending you, especially when you seem overly sensitive. Alumni have filed lawsuits over even less controversial or important topics (Tell and the SLI), so the board should not have based the decision on the high likelihood that it would stir up more meritless litigation. That's no way to run an organization.

Are there other aspects of the decision or the lawsuit that you still do not understand?

anon. said...

Anon. 4:18 asked "Does ANYONE truly believe that had they simply expanded the board by fiat originally rather that put the issue to the alumni first..."

When did they put the issue of board expansion to alumni? Isn't it the standard line of the anti-Board people that the expansion was by fiat?

Anonymous said...

"meritless litigation"

Who is it that does not understand?

Did you even read the judge's order?


I'll quote a litigator's response from elsewhere



"If you are a trial lawyer (are you?), I respectfully suggest you read it again; if you are not, call a lawyer experienced in litigation, buy him or her a drink and dinner and get an explanation.

On a motion to dimiss, the court is required to consider the facts alleged as true. So even if the alleged facts are very flimsy, the court should not grant a motion to dismiss the case. Were that the case here, one could argue that after the period of discovery, an objective fact finder will probably not be able to find by a preponderance of the evidence that the facts are as alleged.

My point is that here, the key facts alleged appear to be irrefutable. There were certain documents created on June of 1891, and there are separate documents signed each party, indicating the agreement; there has been 116 years of performance according to the obvious agreement of both sides. These facts are likely to be found by a preponderance of the evidence to be true, and they will establish the contract.

Re consideration, you should know it takes a peppercorn, and reading the judge's ruling, he may already have ruled that there is consideration.

PS: Are you referring to the statue of frauds when you mention the need for signatures on a contract lasting taking more than one year to perform? If so, you should know that full performance of a contract usually provides an exception to the statute of frauds. There is no doubt that the alleged agreement has been been performed for over 100 years, as noted rather emphatically by the court at page 10. Also with respect to the statute of frauds, the judge's ruling does not address a statute of frauds argument, indicating that the trustee's lawyers did not raise that defense in its motion to dismiss, and it is the type of defense that would be raised at an early stage if it was applicable.

"

I still have difficulty seeing how exactly to get from "five" to "half in perpetuity" but the above only reinforces my notion that that is what it will come down to. This judge is NOT going to rule that an enforceable agreement in some form does not exist.

Anonymous said...

Anon. 4:24, do you see how your two conclusions are contradictory?

1. "I still have difficulty seeing how exactly to get from "five" to "half in perpetuity.""

2. "This judge is NOT going to rule that an enforceable agreement in some form does not exist."

Okay, sure, the judge could rule that there's an enforceable agreement to permit the election of "five" or "eight," but unless he says "half the elected trustees," the plaintiff is sunk. The board will appoint all the charter trustees it wants and leave the alumni at the agreed-upon eight.

Don't you realize how many benefits of the doubt the alumni would need to legally prove that their contract contained sufficiently definite terms granting (a) a right (not a privilege) to (b) elect (not nominate) (c) half the elected members (not "eight" members) of the board in perpetuity (not in 1892 or for one year or similar)? And those are just the terms of the contract -- what about all the benefits of the doubt they are asking for to find (a) that the contract exists and (b) that it is enforceable and (c) that it is not void for violation of the charter and (d) that it has been breached by the appointment of certain charter trustees? The problem is that everything has to fall in favor of alumni. If one piece fails, the whole thing does.

Anonymous said...

I do not believe it is contradictory at all

I do believe the judge has already signaled how he will rule regarding the existence and enforceability of a contract/agreement/whatever. Read his commentary about "reaping the benefits of ..."

To everyone who has so vehemently claimed that the alumni suit has no merits on this issue - I believe they are dead wrong (and in the case of the BOT knew they were dead wrong).


Never the less, winning that point does not win the case for the AoA.


This is not a contradiction.


I simply think and have always thought that the real issue here - the only issue here - is "What did the BOT and the AoA agree to?"

- and on that issue, it still seems to me that getting from "five" to "half in perpetuity" will be the real challenge for the AoA.

Anonymous said...

The question is "What did the BOT and the AoA agree to?" if that includes the questions "did they agree to anything" and "did they agree that their agreement would be enforceable?"

These people were lawyers, they knew what they were doing. If they'd wanted to make an enforceable agreement, they would have put it in a clear written contract containing all the terms and signed by representatives of both sides. With the word "CONTRACT" at the top.

Anonymous said...

Non-responsive

Anonymous said...

The real issue is not "what did they agree to," although proving a favorable answer to that question, if it comes up, will be essential to success for the plaintiff.

The real issue, the threshold question that must be answered before the parties discuss the content of the agreement, is "did they agree to be bound to anything." Unless both sides intended the agreement to be enforceable, it's not. The fact that neither side wrote up a contract suggests that they did not intend their agreement to be enforceable. That's why some people called it a "gentlemen's agreement" instead of a contract.

Anonymous said...

Judge has already signaled how he will rule on that in his order which is obvious to anyone actually reading it .

College does not win there with this judge.

Anonymous said...

“The College, having agreed with the Association such that the Association undertook to raise funds for the College, modified its constitution, lifted an embargo on alumni donations, and forbore to file suit, ought not reap the benefit of its bargain and then deny that the Association had the capacity to make such an agreement. Such a notion offends the obligation of good faith and fair dealing implicit in any contract.”

“The Court finds that it would be improper to hold as a matter of law that the Board’s action in 1891 was illegitimate for lack of authority, when it was ratified by the actions of both parties for 116 years thereafter.”

These are plain statements by the court within the ruling. Neither was prefaced (or in any way covered) by “construing the pleadings in the light most favorable to the Association” as most of the rulings were.

It is not rational to believe that the judge making the statements above is going to rule that no enforceable agreement exists.

Anonymous said...

Anonymous 4:49, the two paragraphs are not holdings or determinations of fact. They are dicta that the judge included in case the rationale for his holding regarding the board's capacity is challenged. They might signal the judge's attitude in this stage before the facts are brought forth, but to the extent they do, they should be abandoned by the judge at trial and it was a mistake to make them appear definitive.

Anonymous said...

They most certainly signal the judges attitude in regard to these matters.

He said what he said for a reason. There was no need to word those paragraphs in that manner in that part of the order except to signal his attitude, He could just as easily have stuck the "“construing the pleadings in the light most favorable to the Association” in as he did elsewhere. But he didn't.