Judgment day approaches at Dartmouth — Todd Zywicki’s take

I mentioned here that oral argument is set for this Friday, at 9:00 a.m., on the DartmouthTrustees’ motion for summary judgment in a lawsuit filed by several Dartmouth alumni against the College for violating an 1891 Agreement with Dartmouth’s Assocation of Alumni. Our friend Todd Zywicki — a former Dartmouth Trustee who happens to teach Contract Law — has analyzed the merits and concluded that the court should deny the Trustees’ motion.
The 1891 Agreement is between Dartmouth and its Assocation of Alumni (AoA). It mandated parity on the Board between Charter Trustees (handpicked by the President and the Board’s five-person Governance Committee) and Alumni Trustees (voted on by the alumni). The Trustees violated this Agreement a few years ago by deciding that alumni would elect only one-third of the College’s Trustees.
The AoA sued for breach of contract and the suit survived a motion to dismiss. However, when the composition of the AoA changed as the result of an election, the new members immediately dismissed the suit, as they had promised to do.
The current lawsuit was filed by individual alums who argue that their rights, as beneficiaries of the Agreement, have been violated. After all, as Professor Zywicki explains, the Agreement was for the benefit of Dartmouth alums, not for the benefit of the AoA, an unincorporated association which exists solely to further the interests of its individual members.
Professor Zywicki concludes that this case presents “casebook quality facts” in terms of illustrating the doctrine of third-party beneficiaries. He also persuasively counters Dartmouth’s arguments that (1) the case is barred by res judicata because the AoA’s case was dismissed with prejudice and (2) the plaintiffs lack standing to bring the case.
Let’s hope that the judge sees these issues the same way.
UPDATE: Joe Malchow has more.

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