Wednesday, April 09, 2008

Trial to be in November

The AoA trial has requested its "Bench trial assignment" for November. The news can be found here (pdf). Also of interest, the trial is estimated to last between 5 and 7 days.


Anonymous said...

TrialGuy says:

Let's let the impartial judge decide this once and for all.

Also... will someone please tell me if I use Name/URL and insert a "name" and no URL is that truly anonymous?

How much privacy is available on posts?


Anonymous said...

TrialGuy says:

Was Dick Pepperman chosen to be the administration's counsel by former Chair of Trustees William H. Neukom due to the Microsoft antitrust litigation?

It seems a little humorous that the Microsoft anti-trust lawyer was chosen to defend Dartmouth's board against its alumni, and that the person at the center of both Microsoft and Dartmouth has been Microsoft's in-house counsel and near-billionaire?

Trial Guy Jr. said...

It is also interesting that the alumni's lawyer is the one who forced Duke to settle in the case of the unfairly-accused lacrosse players.

A.S. Erickson said...

Trial Guy: Yes, just use a name and no URL. As far as how anonymous it really is, if I wanted to do enough sleuthing I can basically figure out where in the world you posted from--or more exactly, where your internet server is located. But I can do that regardless of whether or not the post is anonymous or pseudonymous, so by picking a random name you don't compromise anymore privacy than you already have by visiting the site. Anyway, I have better things to do with my time than figure out where commenters are from.

DartBored said...

If the Dartmouth Undying slate wins, won't the lawsuit be withdrawn? Then we'll never know who would have won. But I suppose someone else will sue and this will go on for years.

It seems to me, if you are anti-parity (or, more likely, pro-parity but don't want to challenge the Board's infallibility), you should vote for Murphy, so we can end the "divisiveness" once and for all. Since the Dartmouth Undying supporters seem to be sure that the suit is without merit, there seems to be little risk in such a counterintuitive vote.

Truth Be Told said...

If the Board-packing crew wins, then they control the AoA: they'll withdraw the suit; then, as the legal leaders of the AoA, they'll negotiate the 2008 Agreement, which will quite legally supercede the 1891 Agreement. And that will be that. Nobody will be able to bring the suit again. After all, if both parties agree to modify an existing contract, they can do so.

This election is for ALL the marbles.

dartbored said...

Truth - What about the now very popular "the AoA doesn't represent me" argument? Couldn't another group bring suit anyway? And even if no one did bring another suit, wouldn't the battle go on for years? What would it take to gain control of the Alumni Council?

Seems like both sides should see this lawsuit through.

Truth Be Told said...

DartBored - Whether you like it or not, the AoA does represent you, at least in the eyes of the law. The 1891 Agreement was between the AoA and the Trustees, and as I said above, the two parties to an agreement are free to modify it.

Imagine if President Obama and the Congress decided to end NAFTA with the agreement of Canada and Mexico. You could not very well argue that Obama did not represent you, even if you did not vote for him, right? Only the parties to an agreement itself can ask it to be enforced by the courts, or abrogate it.

Taking over the Alumni Council would be a larger effort, and given that very, very few AC Councillors are elected, it might well be impossible. Talk about not being representative; the AC takes the cake!

chumbawumba said...

Trial Guy Jr., what Duke case are you talking about? I thought the Duke Rape Case was a criminal case filed by the state of NC to which Duke U. was not a party.

chumbawumba said...

Dartbored, if the suit is withdrawn, no one else will sue because no one can sue. The alumni association (or possibly the council) is the only organization with standing to represent "the alumni" in a suit over a contract between the board and "the alumni".

That's why the Hanover Institute isn't suing on its own and why Hanover Institute officers are trying to use the name of the AoA in their lawsuit. Because the HI does not have standing.

This is the same as when the HI sued the AoA. Since the HI is not a member of the AoA, and it had to sue in the name of a member, it used John MacGovern as the named plaintiff.

chumbawumba said...

Truth Be Told, it makes no difference that "if both parties agree to modify an existing contract, they can do so." Because the plaintiff is the only one here that claims there ever was a contract. The better candidates in this election won't "negotiate" a 2008 Agreement when neither they nor the board believes there ever was an enforceable "1891 Agreement." In addition to being illogical and pointless, doing so would be giving in to the groundless rhetoric of the anti-board people.

Trial Guy the 3rd said...


There are precedents for universities settling rather than continuing litigation in a losing cause, as Duke did. Same attorneys.

DartBored said...

It seems likely that there will never be a trial.

If the Dartmouth Undying slate wins, they will withdraw the suit and make the board-packing arrangement a new "contract". The alumni war will continue elsewhere (presidential search, alumni council elections, letters in the D, etc.) for years to come.

If the petition slate wins, the board will negotiate a settlement which restores parity, not to mention, alumni peace.

chumbawumba said...

Trial Guy III, settlement is definitely the best option when the cause is certain to lose. That's why Dartmouth will never capitulate and never settle. The Exec. Comm. majority has talked up the viability of their lawsuit so well that some people actually believe it has a reasonable chance of success. An objective observer, if you could find one, would disagree.

chumbawumba said...

Dartbored, if the suit is withdrawn, the board will have no reason to make any kind of "contract." Why would they want to? Look at the harm that comes from even the suggestion of a contract by some gadflies with access to lawyers. If the suit is withdrawn, then the board will maintain the status quo: full freedom to decide who nominates whom.

Alumni whining will continue. This is no reason for alumni to act one way or the other. This has been going on since Steele.

If the petition slate wins, the board will definitely not "negotiate a settlement which restores parity." Anyone who thinks so is thinking wishfully to the point of delusion. Can you tell us why the board would want to settle? Would you fold if you had what you believed to be a winning hand? The board expects to win the lawsuit, and it has good reason to. The board has a lot more at stake than the alumni. The board will not admit defeat unless the New Hampshire Supreme Court orders it to do so.

DartBored said...

"If the suit is withdrawn, the board will have no reason to make any kind of 'contract'."

I was thinking something to the effect that the Board and the AoA could agree that the AoA forever has no say in Board or College matters. A 'contact" like this would put up an obstacle to future attempts by alumni to regain some influence.

"Can you tell us why the board would want to settle?"

Because they are not so sure they will win.
Because the Board is not so unified in its willingness to further alienate the alumni.
Because they themsevles are alumni and appreciate the value of the alumni.

chumbawumba said...

DB, the board would not bother to make an agreement to affirm something it already believes. If the AoA really wanted to rub its own nose in it, it could promise never to demand a right to control board decisions, but that again seems unnecessary.

It is not true that "they are not so sure they will win". The board does expect to win, and its belief is reasonable.

The board can and will never settle. Think about it: how could a board possibly uphold the interests of the institution if it started caving to lawsuits that appeared to be meritless? The board is required to fight this to the bitter end. Momentary dips in PR ratings that result from being sued by disgruntled alums are irrelevant compared to the permanent loss of nomination rights to self-interested outsiders. The board has no choice but to resist.

DartBored said...

"The board is required to fight this to the bitter end."

What if compromising is in the best interest of the College. Endless war with
the alumni can't be in the best interest.

chumbawumba said...

In general, giving in to a lawsuit by an outside group that is attempting to gain some control over a critical portion of the corporate bylaws would not be in the corporate interest.

Especially when the suit appears meritless. Not even Reprimanded Trustee Todd Zywicki thinks there is a contract or an enforceable agreement (he thinks the board should decide to give alumni 8 nominations without being told to do it):

I did not characterize or refer to the 1891 Agreement as a “contract” but as an “agreement.” The difference between an “agreement” and a “contract” is important. According to the Restatement (2d) of Contracts Section 3, “an agreement is a manifestation of mutual assent on the part of two or more persons.” An “agreement” may or may not also be a legally-enforceable contract, and in fact, “agreement” is often used interchangeably with the idea of a “promise.”

Truth Be Told said...

If the insider slate wins, they will need to formally confirm the end of the 1891 Agreement. A new Agreement that accepts the expansion of the Board in some manner would do the trick.

Of course, future AoA Exec. Comms. could raise a fuss about Board representation, but they will have no leverage at that point.

A Question to Chumbawumba: if the Board is so certain that it will win, why doesn't it just go ahead and appoint the extra Trustees now. If they/you feel strongly that they will win the litigation, they should also be confident that a judge wouldn't grant an injunction, given that a request for injunction has to meet a much higher standard than a motion to dismiss.

Lawyer '84 said...

Actually, it looks very likely that the AoA will win in November. Usually a motion to dismiss is a low level of decision, and then at trial witnesses are less convincing than they were on paper, etc..

In this litigation, the trial will be a rehashing of the documents that were amply reveiwed in the judge's ruling on the motion to dismiss. Is there any real reason that the judge will be less categorical than he was in the motion to dismiss ruling:

"...the clearest objective evidence of the parties’ intent is their course of conduct for the 116 years since the Agreement: the Board has continued to consist of one half Alumni Trustees, and one half Charter Trustees. It appears that the terms understood by the parties have been

chumbawumba said...

Electing the extra Trustees now would be a poor strategic move. The Board has no reason to give the plaintiff any ammunition or opportunity, no matter how small, to score points. And time is on the side of the Board. It can reduce costs and risks by doing nothing, at least until after the AoA election. If the rights sought by the AoA were not important, then the Board would feel safe in ignoring its pestering.

Lawyer '84, your quotation refers to only one element of an enforceable contract, a meeting of the minds. It also depends on a raft of implausible but alleged facts being interpreted favorably for the AoA, even though they are are unlikely to be found true at trial.

The AoA had better hope the trial is more than a "rehashing" of documents already in evidence, because all the AoA has unearthed so far is a set of old quotes from biased secondary sources.

Anonymous said...

The AoA has "unearthed" a resolution by the Board itself, and the formal report from the alumni committee authorized to lead the negotiations that resulted in the Agreement. Hardly secondary sources.

chumbawumba said...

Neither document contains a contract, even when read together. Neither contains evidence of consideration promised or paid. The resolution contains no evidence of any intent on the part of the board to be bound to an agreement, and it grants at most a revocable license to nominate five people for the board to elect. That's why the AoA never quotes the entire resolution in its court papers -- it would just make it too obvious that there's no contract.

Instead, the AoA is reduced to scrounging for references to "rights" and "elections" and "franchise" in the New York Times of 117 years ago. There's an unbiased, legally-determinative source for you.

Lawyer '84 said...

Chumbawumba, you seem to think that the only way that contractual obligations can be estabished is if both parties sign a single document in blood.

Judge Vaughan formally ruled otherwise, and has wasn't breaking any new legal ground. Now the AoA just has to prove the things that it asserted in its motion. I'd bet on the Association in this one.

Is Chumbawumba the name of your law school?

chumbawumba said...

Lawyer '84, I will repeat the reasons that the judge will be less categorical at trial than he was in the motion to dismiss ruling. One is that he was not categorical in any binding sense. Even a "categorical" dictum about only one of the several elements of a contract is not a decision on the merits.

Another is that the facts on which the judge relied will not be proven at trial. Just look at how loaded with assumptions that statement is that you quoted.

Both parties need to have intended to contract. Todd Zywicki does not think they did. Do you disagree with him?

Anonymous said...

Trial Guy says:

If Zywicki said there's no binding agreement, then yes, I disagree with him.

+. There was a conflict between Dartmouth's board and alumni.
+. There was a series of meetings and an all encompassing agreement to include alumni on the board, in exchange for alumni financial assistance. This agreement had written evidence and there are other records of the actions taken.
+. Part of the alumni assistance was financial donations, but more importantly,
+. part of the alumni consideration was to remove the donation embargo that the Association had proclaimed

I think most people have wondered how to tie the promise of more donations to the actual individual donations. It should be easier to tie the promise to vitiate the embargo on donations. Consideration need only be a dollar or a minor benefit. Clearly, removing the embargo was a major benefit.

Dartmouth College's Board of Directors was enriched by the removal of the embargo on donations and for 117 years has profited from alumni donations which would not have poured in to its coffers had there been a century long, angry, fierce alumni embargo in place.

Now that Dartmouth is unjustly enriched, gorging on alumni donations and importantly, all the income, dividends and capital gains on those original donations - now it wants to unilaterally tear up the grand bargain.

I think the Judge will see through this power play and defend against the dilution of alumni rights.

Put another way, if the Administration's case was so powerful, then why not simply deny the merit of the Alumni's case? Instead, the administration has demanded Affirmative Defenses that basically say that while there might have been an agreement, there are claimed reasons and defenses that render the agreement stale, or ignored, or surrendered, etc.

Each of those Affirmative Defenses has the burden of proof on the Administration. These Defenses are frivolous and without merit.

The Administration should act honorably and deny the basic merits. By asserting frivolous "Affirmative Defenses" on technicalities, the administration is using legalisms to try to strip the Alumni of its contractual rights by legal tricks.

Anti-lawsuit people should demand the Administration drop all Affirmative Defenses: these meritless, tricky defenses mock us all.

chumbawumba said...

Trial guy thinks affirmative defenses are "tricky," but I'm sure he would raise them if he were the victim of a lawsuit.

"There was a conflict between Dartmouth's board and alumni."
"Conflict" is too strong. People not in the corporation were complaining. The board had no legal obligation to act.

"There was a series of meetings and an all encompassing agreement to include alumni on the board,"
If by "agreement" you mean the Zywickian unenforceable agreement, then this is true.

"in exchange for alumni financial assistance."
There was no exchange, and the alumni did not purchase the board's promise. The board made a gratuitous promise to include alumni on the board. All of the writings omit this alleged consideration, and the plaintiff has done no more than allege in vague terms that it existed. The pleadings contain no evidence of this "promise" or any of its terms (when to raise money, how long, how much). Worst, there is no connection to the alleged contract. Alumni promised to and did raise money before during and after 1891. Even if there is evidence of a promise during this period, it cannot serve as consideration unless it was made in return for some promise of the board.

"This agreement had written evidence and there are other records of the actions taken."
There is a resolution by the board that is not a complete contract, and there is a set of meeting minutes by alumni that is not a complete contract. Neither contains any evidence of consideration. They might be evidence of an agreement, but not an enforceable agreement.

"part of the alumni consideration was to remove the donation embargo that the Association had proclaimed"
Funny how this "embargo" just emerged recently. Too bad the plaintiff has not found evidence for it. Alumni and friends and others including the state continued donating to Dartmouth during the "embargo." There is no period of one year or 6 months or probably even less in which Dartmouth received no donations. Too bad it probably would not matter. There is an embargo right now by the Hanover Inst., but no one thinks that the lifting of the embargo, if it is timed to match some future gesture by the board, could create a legal right.

"Dartmouth College's Board of Directors was enriched by the removal of the embargo on donations "and for 117 years has profited from alumni donations"
No, Dartmouth was enriched, and it has benefitted, not profited.

"which would not have poured in to its coffers had there been a century long, angry, fierce alumni embargo in place."
Too absurd to comment on.

"Now that Dartmouth is unjustly enriched"
Funny how the plaintiffs failed to claim unjust enrichment... You are off the deep end here.

"now it wants to unilaterally tear up the grand bargain."
What bargain? A promise is not a bargain, as Zywicki says. The creation of alumni trustees was unilateral, and the replacement of that resolution with later ones was unilateral. That is how corporations act – unilaterally.

"I think the Judge will see through this power play"
What power play? Corporations make decisions you disagree with all the time. The judge will see routine corporate decisionmaking attacked by a shrieking crowd of self-important alumni with an inflated sense of entitlement and will be unable to find any breach of an enforceable agreement.

"and defend against the dilution of alumni rights."
Alumni have no more right to make board decisions than the ordinary citizen does.

"if the Administration's case was so powerful, then why not simply deny the merit of the Alumni's case?"
It's the board's case, not the administration's. The board does deny the merit of the alumni case.

"Instead, the administration has demanded Affirmative Defenses"
No, those are not "instead." They are in addition to or in the alternative. No sane or responsible defendant, when attacked in a lawsuit, would fail to raise them.

"These Defenses are frivolous and without merit."
You are in way over your head. The defenses are not frivolous.

"The Administration should act honorably and deny the basic merits."
You have not read the pleadings, have you? The board (not the admin.) did deny the basic merits. And who are you to talk of "honor"? Have you read your side's shamefully dishonorable amicus brief? That filing alone should have caused the plaintiff to question its case. Should the alumni want support from such people?

"By asserting frivolous "Affirmative Defenses" on technicalities,"
You really are clueless. They are not frivolous, they are not in quotes, and they do not involve technicalities. The Statute of Frauds is not a "technicality," it is common knowledge. Everyone knows that you write down contracts if they involve important things. Neither side's lawyers wrote a contract in 1891.

"the administration is using legalisms"
No, the plaintiff is using legalisms. "Promissory estoppel" is a legalism, a doctrine made up by judges.

"to try to strip the Alumni of its contractual rights"
Without a contract, there are no contractual rights.

"by legal tricks."
That's a funny thing for a supporter of the plaintiff to say. The plaintiff that hired lawyers and filed a lawsuit against the board of trustees requesting a court order to prevent the board from carrying out a commonplace decision that the law presumes to be valid.

"Anti-lawsuit people should demand the Administration drop all Affirmative Defenses: these meritless, tricky defenses mock us all."
Your ignorant, misguided comments mock us all. Every person who finds himself on the receiving end of a lawsuit raises affirmative defenses as a matter of course. If you don't like them, then drop the suit.

Anonymous said...

TrialGuy says:

The last post by Chumbawamba makes me think these arguments got under his skin. If you take joy in winning by tricky legal rules rather than on the merit of the case, then be my guest.

More importantly, I think it's time to take joy in your nom de guerre, Chumbawamba! Not a bad name for an anarchist boy band:

I'm glad you're just a gadfly like me and not a hired PR plant paid to infiltrate blogs and news with anti-parity ravings.

chumbawumba said...

Your arguments definitely get under my skin, trial guy. Unlike most of the ignorant pro-lawsuit ravings, they have a veneer of legal authority. But only a veneer.