Dartblog

In the wake of the Association’s victory on Dartmouth’s motion to dismiss, the College embarked upon a course of action designed to accomplish outside of court what it had failed to accomplish in court. For the first time in its history, Dartmouth insinuated itself into the election of the Executive Committee of the Association and, indeed, became a major player in what ultimately turned into a very public and a very vigorous election contest.

The [College’s candidates] won. To say that [they] thereafter acted promptly to fulfill what they considered to be their electoral mandate to dismiss the Prior Lawsuit 5 is an understatement;…

Mr. Mathias wasted no time in exercising the authority granted to him by the resolutions of the new Executive Committee. However, as the documents which the Plaintiffs have obtained in discovery in the Current Lawsuit make clear, Mr. Mathias had plenty of help. Indeed, as reflected in those documents, it appears that the College played the leading role in the dismissal of the Prior Lawsuit. To begin with, the initial draft of the resolutions passed by the newly-elected Executive Committee of the Association on June 10, 2008 was prepared by General Counsel for the College, Attorney Robert Donin.

Attorney Donin was also the one who recommended that the Association hire Attorney Russell Hilliard as its new counsel…And finally - although notdisclosed to Attorney Hilliard at the time - it was Attorney Donin who saw to it that the College helpfully paid all of Attorney Hilliard’s legal fees. [In response to an Interrogatory from the Plaintiffs in the Current Lawsuit concerning who paid his legal fees, Attorney Hilliard answered, “I have learned in preparing these answers that my bills were paid by Dartmouth College.”]

At this point, the College’s PR machine team shifted into high gear. On the same day that Attorney Felmly mailed the stipulation to the court, Diana Lawrence, the Director of Communications in the Office of Alumni Relations, sent an email to Mr. Mathias alerting him to the fact that when the Court received the stipulation, there probably would be media inquiries and that he would be “the most logical and ideal spokesperson” to respond. (Ex. P) In the meantime, however, she reported that, “The game plan does seem to still be not to issue anything until the judge acts … .”

This “game plan” email from Ms. Lawrence provoked a telling exchange of communications between Mr. Mathias and herself (with blind copies to David Spalding) as to how the parties should deal with the public relations backlash that the filing of the stipulation was likely to create. Most significant is Ms. Lawrence’s observation that, “With respect to reporters’ inquiries, I think the most controversial question might be why the AoA, which is only elected for a year, would file to withdraw a suit with prejudice and prohibit future executive committees from acting differently.”

For his part, Mr. Mathias counseled patience and, if possible, silence. In particular, he recommended that everyone stick to the game plan and keep a low profile “until the judge acts on the stipulation of dismissal”.

The stipulation was stamped in at the Grafton County Superior Court at 1:33 p.m., Tuesday, June 24, 2008.

Even though the Court had approved the Stipulation, neither the Association’s new Executive Committee nor the College had any interest in publicizing the specific terms of the dismissal. As David Spalding put it in an earlier email to Mr. Mathias, “We are now working on a very minimal release.”

The participants in these dismissal machinations had good reason to want to minimize the public awareness of the terms of the dismissal. For one thing, they knew that the election had been fought over the Prior Lawsuit, not over parity.

[Even the President of the College and ex officio member of its Board of Trustees, James Wright - who definitely did know what was going on - was unclear about the effect of the [‘with prejudice’] stipulation on potential future lawsuits. For, when he was informed by David Spalding on June 27 that “the judge has accepted the withdrawal of the lawsuit with prejudice”, he responded via email as follows: “David - good news. good job. now we have to understand how comprehensive the ‘with prejudice’ concept is!”]

The concerns of the College and the Association that the alumni might learn of the effort to extinguish their right to parity are reflected in several private communications obtained by the Plaintiffs through discovery in the Current Lawsuit. For example, the notes of Diana Pearson, a Dartmouth employee, of a conversation she had on June 30, 2008 with David Spalding attribute to John Mathias statements to the effect that Mr. Mathias believed that the stipulation would be effective to bar both the Association and individual alumni from bringing a new lawsuit and, accordingly, that he was “concerned pol.” Accordingly, Mr. Spalding, counseled caution so as not to stir up the alumni.

[The abbreviation “pol.” presumably stands for “politically”. Ms. Pearson’s notes also report that Mr. Spalding, either speaking for himself or for Mr. Mathias or both, acknowledged that although the election was “Fought over lawsuit not parity”, dismissing the Prior Lawsuit in the manner that the parties did was intended to render “1891 dead forever”, thereby “Ending parity - done deal”. (Ex. Y) See also, Ex. Z (email of David Spalding of June 22, 2008 taking issue with a proposed public statement on the dismissal that would have commented that the dispute about parity is still “far from over”).]