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TABLE OF CONTENTS

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QUESTIONS

STATEMENT OF FACTS ..,..,..4

A. The Alleged 1891 Contract Between the College and the


Association and the Association's Prior Lawsuit Concerning
the Purported Right to "Parity'' ..............4

B. The 2008 Association Election Over Whether to Dismiss the


Prior Lawsuit and the Association's Subsequent Dismissal
of That Lawsuit With Prejudice........... ....................5

C. Plaintiffs' Current Lawsuit ....................7

I. PLAINTIFFS' LAWSUIT IS BARRED BY RES JUDICATA ...........10

A. The Current Lawsuit Presents the "Same Causes of Action" as the


Prior Lawsuit, Which Ended with a "Final Judgment on the Merits"....... 11

B. Plaintiffs in the Current Lawsuit Are in Privity with the Plaintiff


in the Prior Lawsuit............. .................12

1. A Judgment Entered Against an Association in a Suit


Involving an Association Contract Is Binding on Members
of that Association .............12

2. Plaintiffs Also Are in Privity with the Association by Virlue


of MacGovern's and Their Personal Involvement in the
Prior 4ction............... ......... 15

II. THERE IS NO EXCEPTION FOR OR EVIDENCE OF "FRAUD OR


COLLUSION" THAT COULD UNDO THE J?E.S JUDICATA EFFECT
OF THE PRIOR JUDGMENT ......18

A. Plaintiffs Cannot Collaterally Attack the Prior Judgment on


Grounds of "Fraud or Co11usion".............. ............. 18

B. There Is No Evidence of Fraud or Collusion............... ............20


C. In the Absence of Fraud or Illegality,the Bricker Doctrine Bars
Any Judicial Inquiry into the Association's Internal Affairs. ....................25

III. PLAINTIFFS LACK STANDING TO ENFORCE THE ASSOCIATION'S


ALLEGED CONTRACT AS INTENDED THIRD-PARTY
BENEFICIARIES ......,.27

A. For a Third Party to Be an Intended Beneficiary with Standing to


Sue, the Promisor and Promisee Must lntend to Give That Third
Party the Right to Enforce the Contract................ ...................27

B. There Is No Evidence That the College and the Association


Intended in 1891 to Give Each and Every Dartmouth Alumnus the
Right to Enforce the Alleged Contract.... ...............30

CONCLUSrON.......... ..............35

REQUEST FOR ORAL ARGUMENT......... ..............35

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TABLE OF AUTHORITIES

Page(s)
Cnsns

Alrscyn v. Second Nat'l Bank,


78 N.H. 196 (t916) ......26

B. Fernandez & Hnos, Inc. v. Kellogg USA, Inc.,


440F.3d 541 (1st Cir.2006) ..........26

Beliveau v. Amoskeag Mfg Co.,


68 N.H. 225 (1895) 19,24-25

Bell v. Eastman Kodak Co.,


2r4F.3d798 (7th Cir. 2000) .........18

Bosse v. Wolverine Ins. Co.,


88 N.H. 440 (1937) ......18

Bricker v. New Hampshire Med. Soc'y,


110 N.H. 469 (1970) .............. passim

Brzicav. Trs. of Dartmouth Coll.,


147 N.H. 443 (2002) ..........11,26,33

Cathedral of the Beechwoods v. Pare,


138 N.H. 389 (1994) ............8, 12,21

Consol. Edison, Inc. v. Northeast Utils.,


426F.3d s24 (2d Cir. 2005). ..........28

Crane v. Comm'r of Dep't of Agric., Food & Rural Res.,


602F. Supp.280 (D. Me. 1985) ......................16

Dunlop v. Pan Am. World Airways, Inc.,


672F.2d1044(2dCir.1982). ........19

Durham v. Durham,
151 N.H.7s7 (200s) ......................14

E. Marine Constr. Corp. v. First S. Leasing, Ltd.,


129 N.H. 270 (1981) ......................r1

Federated Dep't Stores, Inc. v. Moitie,


452 U.S. 3e4 (1981) .....18

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Forman v. Forman,
217 N.E.2d 645 (N.y. 1966)......... ...................30

Gen. Foods Corp. v. Mass. Dep't of Pub. Health,


648F.2d 784 (lst Cir. 1981) ..........16

Grossman v. Murray,
144 N.H. 34s (t999) ......................31

Guarantee Trust & Safe-Deposit Co. v. Duluth & IT.R. Co.,


70 F. 803 (C.C.D. Minn. 1895)......... .........19,25

Haírston v. Pac-10 Conference,


101 F.3d 1315 (9th Cir. 1996) .......31

Hubley v. Goodwin,
91 N.H. 200 (1940) t9,24

In re Zachary G.,
159 N.H. 146 (2009) ......................20

Israel v. Carpenter,
120 F.3d 36r (2d Cir. 1997). ..........21

Johnson Bankv. George Korbakes & Co.,


472F.3d439 (7thCir.2006) .........28

Kalil v. Town of Dummer Zoning Bd. of Adjustment,


1s9 N.H. 72s (20t0) ................ 10-11

Kessler v. Gleich,
156 N.H. 488 (2007) t4-15

Moore v. Town of Lebanon,


96 N.H. 20 (1949) ..r2,l9
New Hampshire v. Charpentier,
126 N.H. 56 (1e85) ......20

Numerica Sav. Bank, F.S.B. v. Mountain Lodge Inn, Corp.,


134 N.H. sos (1991) ......................31

Peerless Ins. Co v. Aetna Cas. & Sur. Co.,


735 F. Supp. 452 (D.N.H. 1990)...... ................14

Plotner v. AT&7,
224F.3d 1161 (10th Cir. 2000) 18-19

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Pub. Serv. Co. of New Hampshire v. Hudson Light & Power Dep't,
938 F.2d 338 (lst Cir. 1991). .........31

Pure Country v. Sigma Chi Fraternity,


3r2F.3d952 (8th Cir.2002) .........28

SEC v. Prudential Sec.,


136 F.3d 153 (D.C. Cir. 1998) .......28

Shortlidge v. Gutoskí,
12s N.H. 510 (1984) ......................14

Sleeper v. Hoban Family P'ship,


157 N.H. 530 (2008) ......................11

Spiegel v. Buntrock,
s7r A.2d767 (De1.1990) ..............27

Taylor v. Sturgell,
128 S. Ct.2r6r (2008)....... ............11

Tell v. Trs. of Dartmouth Coll.,


145 F.3d 417 (lst Cir. 1998) ..........26

Warner Co. v. Sutton,


637 A.zd 960 (N.J. Super. Ct. 1994) ...............19

White Mountqin Constr. Co. v. Transamerica Ins. Co.,


137 N.H. 478 (ree3) ......................18

OrnnnAurrroRrrrEs

9 ConsNoNCoNTRACTS (MurrayPerillo, ed., rev. ed.2007) ...........28,3I

18 Jalæs V/v. MoonE, ET AL., Moon¡'s Fspsner Pnecuc¡ (3d ed. 2010)........ ......17

184 CuenrES ALAN Wnrcur, Anrnun R. MnrEn & Erweru H. Coop¡n,


FEoEner PnecrrcE AND PRocEDURE (2008)....... ..............16

Dartmouth Alumni Association Election Results: New Executive Committee


Elected; Constitutional Amendment Passes (May 9,2009),
http://alumni.dartmouth.edu/aoalNews.aspx?id:297 ..........7

FAQ: Proposed Amendment to the Association of Alumni Constitution Regarding


the Alumni-Nominated Trustee Balloting Process (Feb. 9, 2009),
http://alumni.dartmouth.edu/aoalNews.aspx?id:355 ........24

New Dartmouth Association of Alumni Executive Committee Elected (Apr. 10,


2010), http:/ialumni.dartmouth.eduÆ.{ews.aspx?id:319.............. .........7
Restatement (Second) of Contracts (1981) $ 302 9,27-28

Restatement (Second) of Contracts (1981) $ 304 ....................29

Restatement (Second) of Contracts (1981) $ 311......... ...........34

Restatement (Second) of Judgments (1982) $ 28.......... ..........20

Restatement (Second) of Judgments (1982) $ 41 .......... ............8, 12,13,15

Restatement (Second) of Judgments (1982) $ 56.......... ..........15

Restatement (Second) of Judgments (1982) $ 59.......... ..........13

Restatement (Second) of Judgments (1982) $ 61 .......... ..........13

Restatement (Second) of Judgments (1982) $ 64.......... ,.........19

U.S. News & World Report: Best Colleges 2011,


http:llcolleges.usnews.rankingsandreviews.com./best-collegesinational-
universities-rankings (last visited Attg.29,2010) .............29

VI
QUESTIONS PRESENTED

1. Whether Judge Vaughan correctly held that res judicata bars individual members
of the Association of Alumni of Dafmouth College-an unincorporated association consisting
of all Dartmouth alumni-from re-instituting a lawsuit seeking to enforce an alleged Association
contract that the managing officers of the Association previously dismissed with prejudice upon
being elected on a platform pledging to end the litigation against the College?

2. Whether Judge Vaughan correctly held that plaintiffs lack standing to sue as third-
party beneficiaries because the undisputed facts show no intent by the Association and
Dartmouth-the parties to the alleged contract-to confer on each and every Dartmouth alumnus
the right to sue to enforce the supposed contract?

STATEMENT OF THE CASE

This appeal arises from Judge Vaughan's grant of summary judgment dismissing the

instant lawsuit. Judge Vaughan correctly held that this lawsuit is barred by res judicata and that

plaintiffs lack standing as third-party beneficiaries to enforce a contract to which they are not

parties. That decision should be affirmed.

Plaintiffs are seven individual Dartmouth alumni. They seek to revive a lawsuit against

the College previously brought by the Association of Alumni-an unincorporated association

consisting of Dartmouth's approximately 70,000 alumni-that the managing officers of the

Association dismissed with prejudice. The central allegation of both the prior and the current

lawsuits is that the Association has a contractual right to nominate to Dartmouth's Board of

Trustees a number of non-ex fficio Trusteesl equal to the number selected by the Board itself.

This alleged right-referred to as the right to "panty"-is supposedly embodied in a contract

entered into between the Association and the College over 1 18 years ago in 1891. According to

both lawsuits, the College allegedly breached that purported contract when the Board decided in

September 2001 to create additional Trustee seats to be filled by the Board-so-called "Charter

t Dartmouth's two ex fficio Trustees are the Governor of New Hampshire and the
College's President.
Jssfse5"-r¡¿ithout affording the Association the right to nominate an equal number of so-called

"Alumni Trustees."2

After the Board announced this governance change ín 2007, the Association's Executive

Committee decided, by a vote of 6 out of its 11 members, to file a lawsuit against the College.

The decision to sue the College was highly controversial among Dartmouth alumni. As a result,

the 2008 Association election (members of the Executive Committee are elected annually)

focused on a single issue: whether to continue the litigation against the College. After a

vigorous, highly publicized campaign, Dartmouth alumni elected (by a 60/40 margin) a slate of

candidates who ran on a platform "committed to withdrawing" and "ending" the lawsuit. (AA-

115.)3 The newly elected Association Executive Committee fulfilled its campaign pledge by

promptly executing a joint stipulation with the College dismissing the lawsuit with prejudice,

which Judge Vaughan entered as a judgment.

Several months later, a group of seven Dartmouth alumni-all recruited by one

individual, John MacGovern, who also was the driving force behind the prior litigation-filed

the instant lawsuit, attempting to re-assert the same claims against the College that the

Association had dismissed with prejudice. Plaintiffs' petition largely copies the Association's

allegations in the prior lawsuit and asserts the same claims based on the College's same alleged

September 2007 violation of the Association's purported right to parity. Plaintifß seek to sue as

purported third-party beneficiaries of the alleged 1891 contract between the Association and the

College, arguing that they and every other Dartmouth alumnus have independent standing to

t These names are slightly misleading because all non-ex fficio Trustees (both Charter and
Alumni Trustees) are currently Dartmouth alumni.

' Plaintiffs filed three appendices along with their brief. "AA--" refers to Appendix A;
"AB-_" to Appendix B; and "AC-_" to Appendix C.

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enforce the purported contract. They further contend that they are not bound by the judgment in

the prior lawsuit because the College and the Association unlawfully "colluded" to obtain it.

Judge Vaughan rejected plaintiffs' attempts to achieve through court what they failed to

achieve through the ballot box. First, he correctly held that all three elements of res judicata afe

satisfied: (1) the current lawsuit involves the same causes of action as the prior one; (2) the prior

lawsuit ended by virtue of a stipulated dismissal with prejudice, which constitutes a final

judgment on the merits; and (3) plaintiffs, as members of an unincorporated association

attempting to sue on an alleged association contract, are in privity with the Association.
Plaintifß cannot now undo the res judicata effect of the prior judgment by arguing that the

judgment was collusively obtained. Under New Hampshire law, the exclusive remedy for a

party or its privy who claims that fraud inheres in a prior judgment is to move in the original

action to have that judgment set aside. In any event, Judge Vaughan recognized that there is no

evidence of fraud or illegality and that judicial inquiry into the intemal affairs of the Association

is barred by Bricker v. New Hampshire Medical Socíety,1 10 N.H. 469 (1970).

Second, Judge Vaughan also correctly ruled that plaintiffs lack standing as purported

third-party beneficiaries to enforce the alleged contract. The Restatement (Second) of Contracts

(which New Hampshire follows) makes clear that third parties lack standing to enforce a contract

unless the parties to the contract-here, the College and the Association-intended to confer on

those third parties the right to sue on the contract. Judge Vaughan found that there is no

evidence that the College and the Association intended in 1891 to give each and every individual

Dartmouth alumnus the right in perpetuity to sue to enforce the alleged contract. To the

contrary, the documents that supposedly reflect the alleged agreement (see AC-23 T 14;

Appellants' Br. at 15-16) say nothing about enforcement rights. Judge Vaughan also concluded

J
that the alleged contract "would be entirely unworkable if it were interpreted to confer"

enforcement .ights on each and every Dartmouth alumnus. (AC-l1.)

STATEMENT OF FACTS

A. The Alleged 1891 Contract Between the College and the Association and
the Association's Prior Lawsuit Concerning the Purported Right to "Parify"

The Alleged 1891 Contract At issue in this case is an understanding reached in 1891

"between the College and Association" that supposedly gave the Association the contractual

right to "choosfe] trustees to fill the next five vacancies on the board"-then one-half of the

Board's noî-ex fficio members-"with the continuing right to choose those trustees'

successors." (AC-23 lf 14; AC-24 n fi .) According to the petition, the Association in exchange

agreed to (1) "table[]" "fi]mminent legal actions"; (2) "withdraw a public ultimatum that 'no

material aid would be furnished the college' absent alumni election of trustees"; and (3) use its

"best efforts to raise funds from alumni for the College." (AC-24 T 16.) For more than a
century, the College allegedly performed under this supposed contract by "seatfing] persons

nominated by the Association to one-half of the non-ex fficio seats on Dartmouth's board of

trustees." (AC-34 T 58.)

The Príor Løwsuìt. On September 8, 2007, the Board of Trustees, after an exhaustive

study by the Board's Govemance Committee culminating in a 42-page report, enacted a

resolution that created eight new Charter Trustee positions to be filled by the Board itself without

creating an equal number of so-called Alumni Trustee positions. In response, six of the eleven

members of the Association's Executive Committee voted to sue the College for breach of its

alleged contractual obligation and promise to maintain paity between Charter and Alumni

Trustees. (AB-1 ll 137; AB-48, Tr.26:77-27:2.)

4
A central figure behind the prior lawsuit was John MacGovern, the founder, president

and sole employee of a non-profit corporation called The Hanover Institute. (AB-44-45, Tr.

9:18-14:3.) Through the Institute, MacGovern bankrolled the prior lawsuit, paying the entirety

of the Association's legal fees. (AB-51-52, Tr. 39:23-42:79; AB-1ó4-168.) He also solicited

funds from Dartmouth alumni and other sources in2007 and 2008 to fìnance the litigation (AB-

64-65, Tr. 91:8-94:2; AB-82, Tr. 51:9-18), and each plaintiff in the current lawsuit contributed

money to the Hanover Institute during those years (AB-310; AB-315; AB-319; AB-323; AB-

327; AB-331; AB-335). MacGovem further participated in the prior lawsuit by conferring

regularly with the Association's Liaison for Legal Affairs and with the Association's lawyers.

(AB-57, Tr.61:15-62:15; AB-52-53, Tr. 43:20-48:17.) He also reviewed drafts of courtpapers

filed by the Association under the umbrella of a "common interest" privilege. (AB-54-56, Tr.

52:2-60:3; AB-149-1 56; AB-168; AB-169-277 .)

The College moved to dismiss the prior lawsuit, arguing, inter alia, that the

understanding reached in 1891 was not a valid contract because it did not contain sufficiently

definite terms and lacked consideration. Assuming the truth of the Association's allegations,

Judge Vaughan denied the College's motion, expressly holding that "the Association had the

legal capacity to contract with the Board in 1 89 1 ." (AA-61 .)

B. The 2008 Association Election Over Whether to Dismiss the Prior Lawsuit
and the Association's Subsequent Dismissal of That Lawsuit With Prejudice

The 2008 Assocíatíon Electíon. Members of the Association's Executive Committee are

elected annually. After the prior lawsuit was filed in 2007, the 2008 Association election

became a referendum on whether to continue the litigation against the College, pitting two

competing slates of candidates-the "Unity'' Slate and the "Parity'' Slate-against each other.

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(AC-32 T 41.) "[T]he Unity Slate pledged that, if elected, they would dismiss the Prior Lawsuit."

Appellants' Br. at 5. Its platform stated:

This election is about whether Dartmouth's affairs are managed by the Dartmouth
family, or by New Hampshire courts and activists unrelated to Dartmouth. It is
that simple The Unity Slate opposes that lawsuit, and is committed to
withdrawing it. . . . Parity is NOT the issue, ending the lawsuit is-with all that it
risks to Dartmouth's reputation and even to the selection of its next president. . . .

[The Parity Slate is] supported by the agenda-driven Dartmouth Review and by
Trustee Todd Zywicki, who pledged "long and vicious trench warfare." The
Unity Slate is supported entirely by Dartmouth alumni, and has as its only agenda
ending the lawsuit and restoring civility to dialogue between Alumni/ae and their
College. The Trustees have said they will carefully consider the continuing issues
related to their govemance decision. Civil and constructive dialogue, not
litigation, is the only way to make that happen.

(AA-115.) By contrast, the Parity Slate promised to continue the lawsuit. (AB-353; AA-115.)

On June 10, 2008, in a "record" voting tumout, every member of the Unity Slate was elected

with an approximate 600/o majority vote. (AB-125.)

The Associøtíon's Dìsmíssal of the Prior Løwsuít. On June 10, 2008, the day that the

election results were announced, the new Executive Committee met and, consistent with its

campaign promise, voted to dismiss the prior lawsuit. The Committee unanimously adopted a

resolution designating the Association's newly elected president, John Mathias, Liaison for

Legal Affairs, and authorizinghim "to take any and all actions necessary to obtain the prompt

dismissal of the lawsuit filed by the Association . . . against the Trustees of Dartmouth College."

(AB-128.) In a sworn affidavit submitted in this litigation, Mathias explained:

Our newly elected slate of Executive Committee members wanted to take


whatever action was necessary to prevent the lawsuit we were dismissing on
behalf of the fAssociation] from being instigated againby other alumni purporting
to have some kind of standing to do so. After discussing the issue fully, it was
agreed that a dismissal with prejudice was the preferred manner of proceeding and
accomplishing our desired obj ective.

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(AB-34 fl a.) Mathias thereafter "instructed fthe Association's] counsel, Russell Hilliard, to take

whatever action was most appropriate to cause the voluntary dismissal with prejudice of the

pending fAssociation] lawsuit." (AB-34 T 5.)

Hilliard accomplished this objective by executing a joint stipulation of dismissal with the

College's counsel, Bruce Felmly. (AA-75-16; AA-87-100.) On June 23,2008, Felmlymailed

this signed joint stipulation to the Grafton County Superior Court, copying by e-mail and regular

mail Dartmouth Trustee Todd Zywicki (who previously had appeared in the case as amicus

curiae) and David Bradley (counsel to the Dartmouth Alumni Council). (AA-76-77; AA-99-

100.) On June 27,2008, Judge Vaughan approved the stipulation and ordered the docket marked

"Voluntarily dismissed with prejudice." (AB- 1 31 -32)4

Frønk Gado's Motíons. On June 27,2008, Frank Gado, the former Association Liaison

for Legal Affairs, wrote a letter to the clerk of the Superior Court seeking a stay of approval of

the parties' stipulation dismissing the prior lawsuit. (AB-134.) On July 16, 2008, Gado

(represented by the same attorneys who represent plaintiffs here) moved to intervene as a party

plaintiff and to disallow the Court's docket marking. (AB-135-47.) Judge Vaughan denied

Gado's motion to intervene and denied his motion to disallow the docket marking as moot. (AB-

148.) Gado did not appeal that decision.

C. Plaintiffs' Current Lawsuit

Plaintffi' Petitíon. In November 2008, seven Dartmouth alumni filed the instant

lawsuit, alleging, like the prior one, that the College breached its alleged contractual obligation

a Notwithstanding plaintifß' suggestion that the dismissal of the prior lawsuit with
prejudice was unpopular with Dartmouth alumni, the members of the Executive Committee who
were elected in 2008 ran unopposed in 2009 and were reelected again in 2010. See Dartmouth
Alumni Association Election Results: New Executive Committee Elected; Constitutional
Amendment Passes (May 9, 2009), http:llalumni.dartmouth.edu/aoalNews.aspx?id:297; New
Dartmouth Association of Alumni Executive Committee Elected (Apr. 10, 2010),
http //alumni. dartmouth. edu/News. aspx?
: id:3 1 9.

7
and promise to seat an equal number of Alumni and Charter Trustees. (AC-l8-37.) "Each of the

Plaintiffs is a graduate of Dartmouth and, by reason thereof, a member of the Association."

Appellants' Br. at 13. They filed this lawsuit at the behest of MacGovem, who sought "the right

goup of alumni to be plaintiffs." (AB-338; see also AB-58,Tr.67:13-22; AB-60,Tr.74:2-16;

A8-61, Tr. 80:2-22; AB-310-343.) As in the prior lawsuit, MacGovern has communicated with

plaintiffs' counsel in conversations he claims are privileged and, through the Hanover Institute,

is paying plaintifß' legal fees. (AB-58, Tr.67:4-8; AB-63, Tr. 85:14-86:15; AB-345.)

Judge Vøughan's Rulíng* After discovery, the College moved for summary judgment

on the grounds that the current lawsuit is barred by res judicata and that plaintiffs lack standing

to sue to enforce the Association's alleged contract as third-party beneficiaries. In a thoughtful

I2-page order-which plaintiffs entirely ignore in their brief-Judge Vaughan agreed.

First, Judge Vaughan held that the elements of r¿s judicøta are satisfied because (1) the

current and previous actions arose from "[t]he same factual transaction-the change in the

composition of the Board" (AC-7); (2) the dismissal of the prior judgment with prejudice was a

final judgment on the merits with "'preclusive effect as to both what was actually litigated and

everything that could have been litigated"' (AC-8 (quoting Cathedral of the Beechwoods v. Pare,

138 N.H. 389,39I (199a))); and (3) plaintifß in the current lawsuit seek to enforce "contractual

rights" belonging to the Association, thereby contravening the principle that "a judgment entered

in litigation brought by 'managing officers of an unincorporated association with regard to

association property and contracts' is binding on members of the unincorporated association."

(AC-6 (quoting Restatement (Second) of Judgments $ 41 cmt. b (1982)).) Judge Vaughan

further rejected plaintiffs' attempt to avoid the res judicata effect of the prior judgment by

arguing that it was somehow "'tainted."' (AC-8.) Judge Vaughan concluded that New

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Hampshire courts are restricted from interfering in the "'internal affairs of associations"' in the

absence of "'injustice or illegal action"' (AC-8 (quoting Bricker, 110 N.H. at 470)) and that the

undisputed facts here-which demonstrated that counsel worked with each other "to draft the

stipulation" after the Association's newly elected Executive Committee "openly campaignfed]

against the litigation"-did not "demonstrate injustice or illegality that would justifu the Court

involving itself in the intemal affairs of the Association." (AC-8-9.)

Second, Judge Vaughan ruled that plaintiffs lack standing as third-party beneficiaries to

sue to enforce the Association's alleged contract because the evidence fails to show that
"'recognition of a right to performance in fthem] is appropriate to effectuate the intention of the

parties' to the alleged contract and that the 'circumstances indicate that the promisee intendfed]

to give [them] the benefit of the promised perfomance."' (AC-10 (quoting Restatement
(Second) of Contracts $ 302(1) (1981)).) To the contrary, Judge Vaughan held that the

circumstances show that the purported agreement "gave the Association, as a single, collective

entity, the ability to name five trustees. It did not give each individual alumnus a right to do so."

(AC-10.) As Judge Vaughan explained, the alleged agreement "conferred a benefit on alumni,

not on each alumnus." (AC-11.) Judge Vaughan further observed that plaintiffs, by

acknowledging that the Association could vote to eliminate paity "as a collective'entity and

without a unanimous vote of all members," had themselves conceded that a "right of
performance in each alumnus" was not appropriate to effectuate the intent of the parties. (AC-

10.) A contrary conclusion, reasoned Judge Vaughan, "would embroil the judiciary in the

internal governance of the Association" by interposing the judiciary "into disagreements between

factions of the Association." (AC-12.)

Judge Vaughan later denied plaintiffs' motion for reconsideration. (AC-15-16.)

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SUMMARY OF ARGUMENT

All of plaintiffs' claims fail as amatter of law for two independent reasons. First, Judge

Vaughan correctly held that the elements of res judícata are satisfied here. Plaintifß cannot

escape this rule by arguing that the prior judgment was tainted by fraud or collusion. Having

failed to move to vacate or appeal the judgment in the prior action, plaintiffs are foreclosed from

collaterally attacking that judgment in this action. In any event, their supposed "evidence" of

fraud or collusion shows no such thing: The Association was constitutionally empowered to

dismiss the prior lawsuit with prejudice and achieved this goal-as is customary-by executing a

joint stipulation of dismissal with the opposing party, the College. Any fuither judicial inquiry

into the decision or the authority of the elected members of the Association's Executive

Committee to dismiss the prior lawsuit with prejudice would contravene this Court's strict

limitation against interfering with the internal affairs of an unincorporated association.

Second, plaintiffs lack standing as purported third-party beneficiaries to sue to enforce

the Association's alleged contract. None of the documents that supposedly reflect this alleged

contract evidence any intent by the Association and the College to confer enforcement .ights

upon each individual Dartmouth alumnus. A contrary rule that would allow a single Dartmouth

graduate to sue to enforce the alleged contract would lead to unworkable results.

ARGUMENT

I. PLAINTIFFS' LAWSUIT IS BARRED BY ^R,E"S JUDICATA.

A plaintiff is barred under res judicøta from relitigating a claim where "'(1) the parties

[are] the same or in privity with one another; (2) the same cause of action [is] before the court in

both instances; and (3) a final judgment on the merits [has] been rendered in the first action."'

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Kalil v. Town of Dummer Zoning Bd. of Adjustment, 159 N.H. 725,730 (2010). Judge Vaughan

correctly concluded that each of these elements is satisfied here.

A. The Current Lawsuit Presents the 6rSame Causes of Action" as the


Prior Lawsuit, \ühich Ended with a "Final Judgment on the Merits."

Plaintiffs do not-and cannot--dispute that the second and third elements of res judicata

are satisfied. The current lawsuit involves the "same cause of action" as the prior lawsuit

because it arises from the "same factual transaction." Brzica v. Trs. of Dartmouth Coll., I47

N.H. 443, 455 (2002); see also Sleeper v. Hoban Family P'ship, 157 N.H. 530, 534 (2008)

(explaining that res judicata bars second action "'aris[ing] out of the same transaction or

occurrence,"' even though "plaintiff is prepared in the second action to present evidence or

grounds or theories of the case not presented in the first action"). The petitions in both actions

asserted the same causes of action-breach of contract, breach of implied-in-fact contract and

promissory estoppel-based on the same alleged 1891 contract and the same alleged promises by

the College. (AB-112-13 I''11 41, 47,53; AC-34-37 TT 58, 66,78.) Using virtually identical

language, both petitions predicated their asserted claims on the very same factual transaction,

namely, the Trustees' September 2007 decision to "expand the board by eight charter trustees"

without "seatfing] an equal number of new alumni trustees to maintain the historic parity

between alumni and charter trustees." (AB-1ll I37; AC-30 1[ 36.) In short, there can be no

dispute that the causes of action are the same.s

Plaintiffs also concede that "voluntary dismissals generally do qualify for lres judicatal."

Appellants' Br. at 21. New Hampshire law is clear that a judgment entered upon a stipulated

s Judge Vaughan correctly held that res judicata bars not only plaintiffs' efforts to enforce
the Association's alleged contract, but also plaintiffs' promissory estoppel claim. (AC-12-13.)
As Judge Vaughan explained, "[i]f a promise was made, it was made to the Association andlor
its membership as a collective whole." (AC-12.) Accordingly, "this claim is barred by res
judicata for the same reasons that the contract claims are barred by res judicata." (AC-13.)
Plaintiffs essentially ignore this ruling on appeal. ,See Appellants' Br. at20-21.

11
dismissal "with prejudice" is a final judgment "on the merits." Cathedral of the Beechwoods,

Inc. v. Pare,138 N.H.389,391 (1994) (stipulated dismissal "withprejudice" is "onthemerits"

for res judicata purposes); see also Moore v. Town of Lebanon, 96 N.H. 20,22 (1949) ("'A

judgment of dismissal has been held to be on the merits, when, pursuant to the agreement of the

parties, the judgment or order of dismissal provides by its express terms that . . . the plaintiff

shall have no further cause of action."').

B. Plaintiffs in the Current Lawsuit Are in Privity with the Plaintiff


in the Prior Lawsuit.

1. A Judgment Entered Against an Association in a Suit Involving an


Association Contract Is Binding on Members of that Association.

In holding that plaintiffs are in privity with the Association, Judge Vaughan correctly

followed Section 41 of the Restatement (Second) of Judgments. (AC-6-7.) That section states

Ihat "la] person who is not a party to an action but who is represented by a party is bound by . . .

a judgment as though he were party." Restatement (Second) of Judgments $ 41(1). Section 41

expressly applies to a person represented by a party who is "fi]nvested by the person with

authority to represent him in an action." 1d. $ 41(1Xb). The Restatement provides that such a

person is bound by the prior judgment "even though the person himself does not have notice of

the action, is not served with process, or is not subject to service of process." Id. ç 4l(2).

Comment b to Section 41 makes clear that this rule binds members of an unincorporated

association to judgments entered in actions brought by "managing officers of [the]

unincorporated association with regard to association property and contracts." Id. ç 4I cmt. b.

The comment states that "[t]he person or persons standing in the position of managerial authority

have a correlative representational status in litigation concerning the interests for which they are

responsible." Id. For instance, if "members of the council of an Indian tribe bring an action to

determine the boundary line between the lands of that tribe and another," the judgment entered in

t2-
that action binds a member of that tribe "with respect to the ownership and occupancy rights he

may have in the land as a member of the tribe." Id. ç 4l cmt. b, illus. 2. Applyng this rule,

Judge Vaughan correctly held that "[t]he Association brought the prior lawsuit to vindicate its

contractual rights. Insofar as the petitioners filed the present suit based on their status as

members of the Association to vindicate those same contractual rights, they are bound by the

judgment entered in the prior lawsult." (AC-6-7.)

Even though Section 41 of the Restatement (Second) of Judgments was the basis for

Judge Vaughan's ruling that plaintifß are in privity with the Association, plaintiffs entirely

ignore that provision in their brief. And for good reason: the alleged contract they seek to
enforce in this action is an "association contracf' entered into between the College and the

Association, and the prior lawsuit was brought by the "managing officers" of the Association to

enforce that alleged contract. Restatement (Second) of Judgments $ 41 cmt. b. Under

Section 4I(I), therefore, plaintiffs are bound by the judgment in the prior action as though they

were parties to that action.

This conclusion is strengthened by Section 6l(2) of the Restatement (Second) of

Judgments. See also id. ç 59(2). In fact, plaintiffs concede that Section 61 of the Restatement

bars association members from re-litigating association claims where, "under applicable law, an

unincorporated association is treated as a 'jural entity distinct from its members."' Appellants'

Br. at 32-33 (quoting Restatement (Second) of Judgments $ 61). Plaintiffs do not dispute that the

Association is a'Jural entity'' distinct from its members. Indeed, their breach-of-contract claim

is premised on the theory-previously accepted by Judge Vaughan-that the Association had the

-13-
capacity to contract in its own name.6 (See AA-60-61.) And by allowing the Association to

proceed with the prior lawsuit, Judge Vaughan implicitly recognized that the Association had the

capacity to sue in its own name. Other cases applying New Hampshire law have likewise

concluded that unincorporated associations are jural entities susceptible to suit. See Shortlidge v.

Gutoski,125 N.H. 510, 515 (1984) ("RSA 510:13 allows an individual, when bringing an action

against an unincorporated association, to treat that association as an entity"); see also Peerless

Ins. Co v. Aetna Cas. & Sur. Co.,735 F. Supp. 452, 455 (D.N.H. 1990) ("[I]t is undisputed that

[an unincorporated association] may be sued as a jural entity under New Hampshire law.").

Instead, plaintiffs "take the position that, under New Hampshire law, both an

unincorporated association qnd its members may sue to enforce the association's contracts."

Appellants' Br. at 33 (emphasis in original). There is absolutely no support for plaintiffs'

argument that an unincorporated association and its members can serially assert the same claims

based on the same association contract. The only case cited by plaintiffs (Appellants' Br. at 33)

is readily distinguishable. For purposes of limited-partnership law, that case crafted a limited

exception to the general rule that an individual who is a member of a partnership or corporation

lacks standing to sue "'in his own right' because such an action belong[s] to the partnership as a

derivative action." Kessler v. Gleich,156 N.H. 488,492 (2007). That general rule is premised

on, among other things, the need to "'preventf] a multiplicity of lawsuits by shareholders."' Id.

af 493 (quoting Durham v. Durham, 151 N.H. 7 57 , 7 60 (2005)). The Court held that the need to

prevent duplicative lawsuits had "little applicability'' in Kessler because "[t]he risk of a

multiplicity of lawsuits [was] remote." Id. at 494; see also id. ("It is unlikely that any other

6 Contrary to plaintiffs' assertion, the College did not take the position in the prior lawsuit
"that the Association had no standing to sue in its own name." Appellants' Br. at 33 n.31.
Rather, the College argued (unsuccessfully) that the Association lacked the capacity to contract.

-14-
limited partner would bring a subsequent suit seeking identical relief."). By contrast, the need to

prevent a multiplicity of lawsuits is fully applicable here. As plaintiffs acknowledge (AC-18

fl 1), the Association has "approximately 70,000" members, each of whom, under plaintiffs' view

of New Hampshire law, is free to sue individually to enforce the Association's contract even

though judgment has been entered against the Association on that claim.

Citing Section 56(1) of the Restatement (Second) of Judgments, plaintiffs contend that

both they and the Association can assert the same claims based on the same alleged contract

because plaintiffs are suing as purported third-party beneficiaries and thus their claims "survive

the Association's dismissal of the Prior Lawsuit with prejudice." Appellants' Br. at 31.

Contrary to plaintiffs' suggestion, Section 56(1) does not trump other sections of the

Restatement, such as Section 47,that independentlybar purported third-party-beneficiary claims.

lndeed, the Restatement expressly states that "fa]lthough a person who is a third party
beneficiary of a contract is not as such bound by the judgment in an action between the promisor

and the promisee, he may be bound by virtue of other rules." Restatement (Second) of

Judgments $ 56 cmt. b (emphasis added). "Thus, if the promisee is also a trustee for the

beneficiary, an action by the þrmer is preclusive on the latter under the rule of $ 41." Id.

(emphasis added). Similarly, if the promisee is an unincorporated association and the prior
lawsuit was brought to enforce an association contract by the association's managing officers, a

subsequent action by an association member is barred by Section 4I regardless of whether that

member seeks to sue as a third-party beneficiary.

2. Plaintiffs Also Are in Privity with the Association by Virtue of


MacGovern's and Their Personal Involvement in the Prior Action.

Each of the individual plaintifß in the current action is also in privity with the

Association for two additional reasons: (1) they are impermissibly attempting to re-litigate the

-15-
prior lawsuit as MacGovern's proxies; aú (2) they themselves participated in the prior lawsuit
by contributing to its funding through MacGovem's Hanover Institute.

There can be no dispute that MacGovern "actively participated" in the prior litigation,

both by conferring regularly with the Association and its counsel and by financing the prior

lawsuit through the Hanover Institute. See 18A' Cnenrps AIRN WntcHt, Arurun R. Mnrnn &

Eowenp H. Coopen, FrrrnAr Pnlcrtcr AND PRocEDTJRE $ 4456 (2d ed.2002) ("Any member

fof an association] who actively participated in the first action should . . . be barred, without
insisting on the same degree of involvement that is required by ordinary standards of

participation and control."); Gen. Foods Corp. v. Mass. Dep't of Pub. Health, 648 F .2d 784, 788

(lst Cir. 1981) ("[A] member of a trade association who finances an action which it brings on

behalf of its members impliedly authorizes the trade association to represent him in that
action."); Crane v. Comm'r of Dep't of Agric., Food & Rural Res.,602 F. Supp. 280, 284-86 (D.

Me. 1985) (barring subsequent action by non-stock-membership-corporation members who

"contributed money towards fthe organization's] expenses in litigating the fprior] action").

As explained above, MacGovern regularly discussed the prior lawsuit with the

Association's Liaison for Legal Affairs and also communicated frequently with the Association's

lawyers, claiming attorney-client privilege. MacGovern further reviewed and was "entitled" to

comment on the Association's draft court papers before they were filed. (AB-53, Tr. 45:3-48:17;

AB-57, Tr. 61:7-62:5; AB-68, Tr. 107:3-5.) Finally, through the Hanover Institute, MacGovern

raised $280,000 to fund the prior lawsuit and paid all of the Association's legal expenses. (AB-

50-51, Tr.33:17-40:3.) See also Appellants' Br. at 29-30 n.30 ("The Hanover Institute .. .

financed both the Prior Lawsuit and the Current Lawsuit.").

-t6-
Given his deep involvement in and active control of the prior lawsuit, MacGovem

unquestionably is in privity with the Association and thus could not have brought the current

lawsuit himself. Faced with a clear res judicata bar, MacGovern instead recruited plaintiffs to

bring the current lawsuit as his proxies. lndeed, the record is clear that MacGovern sought "the

right group of alumni to be plaintiffs" (AB-338) and asked them to join a "litigation in our fthe

alumni's] own behalf." (AB-339-43.) ln doing so, MacGovem contravened the well-settled

rule, re-affirmed by the United States Supreme Court in 2008, that"aparty bound by a judgment

may not avoid its preclusive force by relitigating through a proxy." Taylor v. Sturgell,128 S. Ct.

2161, 2Il3 (2008); see also 18 Jnvæs ffi¿. MooRE, ET AL., MooRE's FEDERAL PRACTICE

'1T131.40[3][e]til[C] (3d ed. 2010) ("4 person subject to an adverse judgment cannot avoid the

preclusive effect of the judgment by bringing a second action on the same claim through a

representative."). If res judicata could be evaded so easily, MacGovern could go on forever

recruiting new Dartmouth alumni to bring the same lawsuit against the College, perhaps in

different states, thus undermining the "'certainty and finality"' of judgments that res judicata is

designed to protect. E. Maríne Constr. Corp. v. First S. Leasing, Ltd.,I29 N.H. 270, 273 (1987).

Plaintiffs' funding of the prior lawsuit, through their donations to the Hanover Institute,

also bars them from pursuing this lawsuit. Although plaintiffs contend that they "had no

involvement whatsoever in the Prior Lawsuit" (Appellants' Br. at 29),the undisputed evidence

shows that they collectively contributed at least $7,530 to the Hanover Institute when it was
actively soliciting donations to fund the prior lawsuit. (AB-310, 315, 379,323,327,337,335.)

Plaintiffs also voted (and, in the case of plaintiff Steel, ran as aPanty Slate candidate) in the

Association's 2008 election that was a referendum on whether to continue litigation against the

-t7 -
College. (Id.; see also AB-125-26.) Having lost at the ballot box, plaintiffs should not be

permitted to circumvent res judicata and resurrect the Association's dismissed lawsuit.

II. THERE IS NO EXCEPTION FOR OR EVIDENCE OF TFRAUD OR


COLLUSION' TIIAT COULD UNDO THE,R,E^S JUDICATA EFFECT
OF THE PRIOR JUDGMENT.

A. Plaintiffs Cannot Collaterally Affack the Prior Judgment on Grounds of


"Fraud or Collusion.tt
Unable seriously to dispute that the elements of res judicata are satisfied, plaintifß'

principal argument (both before Judge Vaughan and on appeal) is that the judgment in the prior

action is "not worthy of res judicata rccognition" because it was the product of "'fraud, collusion

or error."' Appellants' Br. aI2I. There is no evidence to support plaintiffs' accusation that

counsel for the Association (Russell Hilliard) and the College (Bruce Felmly and Richard

Pepperman) engaged in fraud or acted in bad faith. In any event, plaintiffs' argument is

misplaced because, under New Hampshire law, "a judgment may be attacked, not collaterally,

but only directly by a defeated party or his privy)'1 Bosse v. Wolverine Ins. Co.,88 N.H. 440,

442 (1937) (emphasis added); see also id. ("The judgment is open to attack if fraud inheres in it,

but the attack must be by the remedial procedure of seeking its vacation ") (emphasis added);

White Mountain Constr. Co. v. Transqmerica Ins. Co., I37 N.H. 478, 487 (1993) ("If, after

failing to control the defense, the defendant thought the judgment was collusive, then its proper

avenue of attack was to move to vacate or modifu the foriginal] judgment."); Plotner v. AT&7,

224 F.3d 1761, 1170 (10th Cir. 2000) (observing that appellant "cite[d] no authority for the

t This rule against collateral attack makes sense. As the United States Supreme Court
explained, "'a coÍttraîy view would result in creating elements of uncertainty and confusion and
in undermining the conclusive character of judgments, consequences which it was the very
purpose of the doctrine of res judicata to avert."' Federated Dep't Stores, Inc. v. Moitíe,452
U.S. 394, 398-99 (1981); see also Bell v. Eastman Kodak Co.,2l4 F.3d 798, 801 (7th Cir. 2000)
("4 collateral attack on a final judgment is not a permissible substitute for appealing the
judgment within the fproper] time").

- 18 -
proposition that fraud on the court is an authority to allow a collateral attack on a judgment-

i.e., defeating the defense of res judicata-particularly considering that Fed. R. Civ. P. 60(b)

provides for consideration of fraud on the court as grounds for direct attack-i.e., obtaining

relief from the court that issued the original judgment.") (emphasis in original). Indeed, all of

the cases cited by plaintiffs (Appellants' Br. at 22-23) that discuss vacatur or modification of a

judgment do so in the context of the original action.8

Section 42 of the Restatement (Second) of Judgments says nothing to the contrary. See

Appellants' Br. at 22-23. Comment f to that section discusses whether a judgment that was "the

product of collusion" is binding, but not the procedure for raising that issue and seeking

appropriate relieÈ-which, under New Hampshire law, requires a motion or an appeal in the

original action. Indeed, Section 64 of the Restatement makes clear that an individual has

standing to seek "fr]elief from a judgment" if "the judgment is or purports to be binding on him

under the rules of res judicata." Restatement (Second) of Judgments $ 64. Accordingly,

"'privies'have standing to attack a judgment." Id., reporter's note cmt. d. Plaintiffs here thus

had two mutually exclusive options: (1) move to set aside the judgment in the original action on

the basis of fraud or collusion and, if unsuccessful, appeal that decision; or (2) file a lawsuit on

8 5"" Beliveau v. Amoskeag Mfg. Co.,68 N.H. 225, 225 (1595) (appeal arising from denial
of "motion by the plaintiff to strike off the docket entry"); Hubley v. Goodwin, 91 N.H. 200,202
(1940) (referring to "amendfment] and vacatfur]" of judgment on "proof of 'facts showing the
absence of any real consent,' such as fraud or remediable mistake."); Moore v. Town of Lebanon,
96 N.H. 20,27 (1949) (rejecting "exception to the failure of the Court to vacate the stipulation");
Dunlop v. Pan Am. World Airways, Inc., 672 F.2d 1044, 1046 (2d Cir. 1982) (appeal arising
from denial of post-judgment Rule 60(b) "motion to amend a stipulation of dismissal");
Guarantee Trust & Safe-Deposit Co. v. Duluth & W.R. Co.,70 F. 803, 803 (C.C.D. Minn. 1895)
(petition by stockholders to vacate decree that had "not been entered"); Warner Co. v. Sutton,
637 A.2d 960, 965 (N.J. Super. Ct. 1994) (permitting "[p]ost-judgment intervention" to allow
direct appeal from "amended consent order").

-t9-
the basis that they are not in privity with the Association. Having chosen the latter option, they

are bound by that choice.

Plaintiffs similarly argue that res judicata "implicates equitable considerations" under

New Hampshire law. Appellants' Br. at 28. The cases on which plaintiffs rely, however, apply a

limited public-policy exception in the context of collateral estoppel (issue preclusion), not res

judicata (claim preclusion). See New Hampshire v. Charpentier, 126 N.H. 56, 60 (1985)

(explaining that court's use of term "res judicata" embraced "'collateral estoppel, which is an

extension of the doctrine of res judicata,"'and citing Restatement (Second) of Judgments $ 28(5)

when discussing limited exception to rule against reJitigation of "identical" issues); In re

Zachary G., 159 N.H. 146, l5l-52 (2009) (discussing "collateral estoppel" and citing

Restatement (Second) of Judgments $ 28(5)); Restatement (Second) of Judgments $ 28

(enumerating exceptions to "fi]ssue fp]reclusion"). In addition, that limited exception is

implicated only where a subsequent change in circumstances-such as "subsequent and recent

incidents of fchild] abuse," In re Zachar! G.,159 N.H. at 152, and the presence of "hazardous

chemical wastes" on a site where they did not previously exist, Charpentier, 126 N.H. at 61-
presents an "overriding" public-policy need that trumps the usual rule against collateral re-

litigation of issues actually adjudicated. In re Zachary G.,I59 N.H. at 152; see a/so Restatement

(Second) of Judgments $ 28 cmt. g (explaining that "policy supporting issue preclusion" may

yield only in"rare exceptionfs]" where there is "compelling need"). None of these extreme facts

is present here.

B. There Is No Evidence of Fraud or Collusion.

Plaintiffs' attempt to undo the prior judgment based on supposed "fraud or collusion" is

as weak on substance as it is on procedure. Plaintifß argue that to the extent the stipulation upon

which the prior judgment was entered is "a type of contract and subject to contract rules of

-20 -
interpretation, it should be deemed unenforceable because there was no consideration for the

Association's relinquishment of the alumni's rights." Appellants' Br. at 23. The premise for that

argument is flawed because res judicata flows from the judgment entered by the court, not the

stipulation agreed to by the parties. See Cathedral of the Beechwoods, 138 N.H. at 391

("controlling document" for res judicata is "'judgment erfiered on the docket,"' not the

"settlement agreement") (emphasis in original). The judgment is not a contract and thus need not

be supported by consideration. To the extent that "contract rules of interpretation" are at all

relevant (Appellants' Br. at 23), they apply to the interpretation of the scope of a stipulation

entered as a judgment, not to the enforceability of the judgment. See Israel v. Carpenter, I20

F.3d 361, 366 (2d Cir. 1997) (addressing party's attempt under Massachusetts law "to limit the

stipulation of dismissal to its allegedly mutually intended scope").

Nor is there any force to plaintiffs' rhetoric that "the Association's dismissal of the Prior

Lawsuit 'with prejudice' was completely gratuitous." Appellants' Br. at23. The stipulation was

entered into by the Association's democratically elected leadership after an election that was

devoted to the single issue of whether the Association should continue the prior lawsuit. The

Unity Slate candidates won that election after openly campaigning on a platform that continuing

the lawsuit-which was driven by individuals, such as Professor Zywicki, who had "pledged

'long and vicious trench \ryarfare"' against the College-posed "risks to Dartmouth's reputation

and even to the selection of its next president."e 1ee-t15.) Sixty percent of Dartmouth alumni
who voted in the election agteed.

e Professor Zywicki, who appeared as amicus before Judge Vaughan in the prior and
current lawsuits, attempts to continue this "'long and vicious trench warfare"' here, apparently
motivated by what he calls his "arbitrary removal" from the Board for a speech he made "in
which he criticized the board-packing plan and opined on the declining state of higher education
and growingtl:r.eat of mal-administration." Zywicki Br. at 6, 8. The speech itselt omitted from

-21 -
Contrary to plaintiffs' suggestion, the Unity Slate candidates never stated that they would

"reinstitutfe]" the lawsuit "if negotiations with the College for a restoration of parity ultimately

failed." Appellants' Br. at 23 n.2I. As Association President John Mathias explained, the Unity

Slate candidates specifically intended to "take whatever action was necessary to prevent the

lawsuit . . . from being instigated again by other alumni purporting to have some kind of standing

to [sue]" (AB-34 fl 4), and their campaign platforrn was fully consistent with that intention.

Plaintiffs concede that a dismissal without prejudice "would not have prevented . . . anyone else"

who purported to have standing from reinstituting a lawsuit that the Association's elected

leadership and a majority of Dartmouth alumni believed risked harming the College. Appellants'

Br. at 23 n.2I. Any further judicial inquiry into the wisdom of the Association Executive

Committee's decision to dismiss the prior lawsuit with prejudice would contravene this Court's

strict limitation against interfering with the internal affairs of an unincorporated association.

Plaintiffs further assert that the stipulated dismissal with prejudice "was a product of

collusion and bad faith." Appellants' Br. at 23. For support, they note that the College was
involved in drafting the stipulation, id. aI 24; that the College supposedly acted "to keep the

terms of the stipulation secret," id.; and that notes taken by Diana Pearson, Vice President for

Professor Zywickl's appendix, is revealing. In it, Professor Zywicki (1) called the late James
Freedman-who served as Dartmouth president for over ten years-a "truly evil man";
(2) claimed that contributions of "$10 million or a million dollars is chump change at
Dartmouth" and that donors "basically use this to buy indulgences for being rich" and "to deal
with their conscience"; (3) said that prospective donors should consider investing in "alternative
institutions"-in addition to or rather than-giving to "[e]lite institutions" like Dartmouth; and
(4) claimed that those who control institutions of higher education "don't believe in God and
they don't believe in country," "are vicious people," and become trustees "because you get good
seats at the football game and you get wined and dined and everybody pretends like you're a
genius and all that sort of thing" but that they "really don't care what goes on inside the
classroom, by and large." (Supplemental Appendix ("S4")-4, 5-6, 8.) In view of this speech,
the College's expectation that a Trustee "representf] Dartmouth positively in words and deeds"
(SA-10) was not met.

-22 -
Communications, supposedly indicate that the College understood that the Executive

Committee's agreement to a dismissal with prejudice "was beyond the scope of its authoity," id.

None of this supposed "support" shows any improper "collusion or bad faith"-let alone

the type of extreme conduct necessary to vacate or modiff a judgment. Because the stipulation

dismissing the prior lawsuit with prejudice was a joint stipulation signed by both parties (AB-

130), counsel for both parties were involved in drafting the stipulation. Nor is there any basis for

plaintiffs' suggestion that the College's lawyers somehow tricked the Association. As

Association President John Mathias stated in his swom affidavit, "fa]cting with the full authority

and understanding of [the Associationis] Executive Committee, I instructed our counsel, Russell

Hilliard, to take whatever action was most appropriate to cause the voluntary dismissal with

prejudice of the pending fAssociation] lawsuit." (AB-34 T 5.)

Plaintiffs' argument that the stipulation and its terms were improperly kept secret is also

baseless: in filing the stipulation with the court, the College served by e-mail and regular mail

all individuals who previously had appeared in the prior lawsuit, including Professor Zywícki.

(AA-76-77; AA-99-100.) Shortly thereafter, Frank Gado (another MacGovern proxy represented

by the same attorneys who represent plaintiffs here) moved to intervene, thus rebutting plaintiffs'

assertion that the terms of the stipulation were somehow kept secret. (AB-135-38.) Gado

elected, however, not to appeal Judge Vaughan's decision denying his motion to intervene or

otherwise seek to challenge the judgment in the prior lawsuit on appeal.

There is likewise no merit to the suggestion that the Executive Committee's decision to

dismiss the lawsuit with prejudice was beyond the scope of its authonty. See Appellants' Br. at

24-25. The Association's Constitution vests the Executive Committee with the authority to take

"charge of the general interests of the Association." (AB-96 1T3(Ð.) Pursuant to that authority,

-23 -
the Executive Committee gave John Mathias the authority to "take any and all actions necessary

to obtain the prompt dismissal of the [prior lawsuit]." (AB-128.) If the Executive Committee in

2007 had the authority to bring the prior lawsuit without a vote of the Association's members,

then the Executive Committee members elected in 2008 had the authority to dismiss that lawsuit.

Plaintiffs' statement (Appellants' Br. at 24) that the College "understood" that the

Association's agreement to dismiss the lawsuit with prejudice was "beyond the scope of its

authority" also does not withstand scrutiny. The cryptic notes that plaintiffs cite (AA-127) say

nothing about the prior lawsuit or the 2008 Association election; if anything, the reference to a

600/o vote is likely an attempt to gauge whether the Association could obtain the two-thirds

majority needed to amend its Constitution to eliminate the requirement that it run "3 fAlumni

Council-nominatedl candidfates]" against any petition candidate. See FAQ: Proposed

Amendment to the Association of Alumni Constitution Regarding the Alumni-Nominated

Trustee Balloting Process (Feb. 9, 2009), htp://alumni.dartmouth.edr-/aoalNews.aspx?id:355

(explaining proposed amendment to "reducfe] the number of candidates nominated by the

Alumni Council from three to one (or two candidates)"). Even if plaintiffs' speculation had any

merit (and it does not), the members of the Executive Committee acted within their authority by

dismissing the lawsuit brought by their predecessors.

Plaintiffs' cases only confirm that the conduct at issue here provides no basis to amend or

modify the judgment in the prior action. The only example of bad faith discussed in plaintiffs'

cases is knowledge by one party to a stipulation that the opposing party's lawyer lacked authority

from his client to enter into the stipulation. See Hubley v. Goodwin, 91 N.H. 200,203 (1940)

(party acted in good faith where he "had a right to assume" opposing counsel had authority to

settle); Beliveau v. Amoskeag Mfg. Co.,68 N.H. 225, 227 (1894) þarty acted in good faith where

-24-
he did not know that adversary's lawyer had been discharged). And the only example of

collusion discussed in these cases is an individual secretly obtaining control of two companies

and intentionally rendering them insolvent in order to obtain both at a nominal price. See

Guarantee Trust & Safe Deposit Co. v. Duluth & W.R. Co.,70 F. 803, 80ó (C.C.D. Minn. 1895).

Those facts bear no resemblance to this case.

After reviewing these same arguments and evidence below, Judge Vaughan-the same

judge who had directed entry of judgment in the prior action based on the joint stipulation (AB-

l32-33lconcluded that plaintiffs' supposed evidence of fraud or collusion showed only that the

new Executive Committee, once elected, "took measures to terminate the litigation," including

"working with counsel, the fCollege], and the [College's] counsel to draft the stipulation." (AC-

S.) Judge Vaughan held that none of these facts demonstrates "injustice or illegality." (Id.)

Plaintiffs have shown no reason for this Court to question Judge Vaughan's ruling.

C. In the Absence of Fraud or Illegality, the Bricker Doctrine Bars Any


Judicial Inquiry into the Association's Internal Affairs.

Plaintiffs' attempt to undo the prior judgment is further barred by the rule established in

Bricker, 110 N.H. 469. Under Bricker, "fi]udicial interference in the internal affairs of
associations is strictly limited and will not be undertaken in the absence of a showing of injustice

or illegal action and resulting damage to the complaining member." Id. a1470. This rule applies

fully here: Plaintiffs challenge the decision and authority of the Association's elected Executive

Committee to dismiss with prejudice an unpopular lawsuit brought by a bare majority of a prior

committee. As Judge Vaughan correctly held, the facts proffered by plaintiffs "do not

demonstrate injustice or illegality that would justify the Court involving itself in the internal

affairs of the Association." (AC-8-9.)

-25 -
On appeal, plaintiffs argue that the "College has no standing to raise lBricker)" because

the College "has no authority to assert the Association's legal rights." Appellants' Br. at 26.

This argument is foreclosed by Brzica v. Trustees of Dartmouth College,147 N.H. 443 (2002),

the very case cited by plaintiffs. In Brzica, this Court rejected the argument thal Bricker did not

apply because plaintiffs "did not seek any relief against the association." Id. at 456. As the

Court explained, what mattered was that the relief requested "would necessarily interfere with

the internal affairs of the association." Id. That the Association in Brzica intervened is a

distinction without a difference: The Bricker doctrine is not a defense particular to an

association, but rather a policy decision that New Hampshire courts will not intrude on

association "'questions of policy, discipline, internal government, and custom."' Id.

Nor does the Association's decision not "to intervene as a party in this case" prove

anything. Appellants' Br. at 28 n.29. Because the Association and Dartmouth shared the same

goal--{ismissal of the litigation against the College-the Association could well have concluded

that its interests were adequately represented by the College. See B. Fernandez & Hnos, Inc. v.

KelloggUSA, lnc.,440F.3d541,546(lstCir.2006) ("[I]ncaseswheretheintervenor'sultimate

objective matches that of the named party, a rebuttable presumption of adequate representation

applies."). By failing to join the Association as a party whose "legal rights" plaintiffs seek to

vindicate (Appellants' Br. at 26), plaintiffs only risked dooming their own claims. See Akscyn v.

Second Nat'l Bank,78 N.H. 196, 200 (1916) (holding that association was "a necessary partf'

where its members sued "to enforce a right of the association"); Tell v. Trs. of Dartmouth Coll.,

145 F.3d 4I7, 4I9 (1st Cir. 1998) (affrrming dismissal for failure to join Association where relief

requested would affect Association's rights). In fact, the College pled as a defense in this action

plaintifß' "failure to join a necessary party." (AC-49 T 87.)

-26-
Plaintiffs try to distinguish Bricker by arguing that "the dispute lin Bricker'l was more in

the nature of a general policy dispute than a dispute over anyone's legal rights." Appellants' Br.

at 27 . Even assuming that this distinction has legal significance, plaintifß concede that they are

not here t ying to vindicate any "right" unique to them or that benefits them uniquel¡ but rather

seek to obtain relief on behalf of all Dartmouth alumni. Appellant's Br. at 79; see also id.

("fE]nforcement of the contract by individual alufilni-such as these Plaintiffs-necessarily

inures to the benefit of all alumni.") (emphasis in original). Their lawsuit thus reflects a

quintessential policy dispute over whether the Association and Dartmouth alumni should use

litigation to challenge the College's recent governance changes-the very issue over which the

2008 election was fought. Under established principles of corporate law, "[t]he decision to bring

a law suit or to refrain from litigating a claim on behalf of a corporation is a decision concerning

the management of the corporation." Spiegel v. Buntrock, 51I A.2d767,773 (Del. 1990).

In sum, it is clear that the seven plaintifß in this action-like the plaintiff in Bricker-are

tryitrg to "impose ftheir] will on the remaining fAssociation] members." Bricker,1l0 N.H. at

470. Under settled New Hampshire law, they cannot use the courts to do so.

III. PLAINTIFFS LACK STANDING TO ENFORCE THE ASSOCIATION'S


ALLEGED CONTRACT AS INTENDED THIRD.PARTY BENEFICIARIES.

Plaintiffs' contract claims fail as a matter of law for the additional and independent

reason that they lack standing as third-party beneficiaries to enforce the alleged contract.

A. For a Third Party to Be an Intended Beneficiary with Standing to Sue, the


Promisor and Promisee Must Intend to Give That Third Party the Right to
Enforce the Contract.

Plaintiffs acknowledge that "New Hampshire generally follows the RESTATEMENT OF

CONTRACTS on issues of contract law." Appellants' Br. at 15. They also concede that

Section 302(1Xb) of the Restatement provides the relevant test of whether plaintiffs are intended

-27 -
beneficiaries with standing to enforce the Association's alleged contract. Id. That section sets

forth a two-part test: "[A] beneficiary of a promise is an intended beneficiary if [1] recognition
of a right to performance in the benehciary is appropriate to effectuate the intention of the parties

and . . . [2] the circumstances indicate that the promisee intends to give the beneficiary the

benefit of the promised performance." Restatement (Second) of Contracts $ 302(1)(b) (emphasis

added). Plaintiffs cannot satisff the first part of that test.

A leading treatise on contract law explains that the "right to performance" referred to by

the Restatement is the right to sue or enforce the contract:

The critical right of a third party is the right to sue the promisor. Again, however,
the promisor and promisee will almost never state that intention explicitly.
Nonetheless, the critical test is whether the language of the contract, the extrinsic
evidence interpreting that language and all of the surrounding circumstances
manifest an intention by the promisee and promisor to confer that right on the
third party. If so, it is "appropriate" for a court to recognize that right in the third
party.

9 Consnr oN CoNTRACTS $ 44.6 (Murray Perillo, ed., rev. ed.2007). Case law similarly makes

clear that the first part of the Section 302(1Xb) test requires a showing that the contracting

parties intended to confer upon a third party the right to enforce the contract. See Consol.

Edíson, Inc. v. Northeast Utils., 426 F.3d 524, 527 (2d Cir. 2005) (relevant question is whether

contracting parties "intended to confer" upon third parties "a right to enforce [the promisor's]

promise").10 Plaintiffs have adduced no evidence of such an intent here.

10 See also Johnson Bank v. George Korbakes & Co.,472F.3d 439,44I (7th Cir. 2006)
("To be a third-party beneficiary of a contract is to have the rights of aparty, which is to say the
power to sue to enforce the contract ."); Pure Country v. Sigma Chi Fraternity,3l2 F.3d 952, 958
(8th Cir. 2002) ("[F]or a third party to be able to enforce a consent decree, the third party must,
at a minimum, show that the parties to the consent decree not only intended to confer a benefit
upon that third party, but also intended to give that third party a legally binding and enforceable
right to that benefit)'); SEC v. Prudential \ec.,136 F.3d 153,159 (D.C. Cir. 1998) (interpreting
consent decree and holding "[t]he test is not . . . only whether the contracting parties intended to
confer a benefit directly on the third parties, but also whether the parties intended the third party
to be able to sue to protect that benefit").

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Plaintiffs are wrong in suggesting that Section 304 of the Restatement provides a "default

rule" that differs from Section 302's focus on the parties' intent to confer enforcement rights on

third parties. Appellants' Br. at 18. Section 304 is premised on a threshold finding that a third

party is an "intended beneficiary" within the meaning of Section302. ,See Restatement (Second)

of Contracts $ 304 (referring to duty "in the promisor to any intended beneficiary") (emphasis

added); id. cmt. a (explaining that term "'fb]eneficiary' is defined in $ 2, 'intended beneficiary'

and 'incidental benefrciary' in $ 302"). If a third party is not an "intended beneficiary,"


Section 304 does not apply. Plaintiffs also are mistaken in arguing that "public policy''lr plays a

role in the third-party beneficiary analysis under the Restatement. Appellants' Br. at 19. It does

not. And there likewise is no support for Professor Zywicki's assertion that there is an exception

to the rule set forth in Section 302 based on the promisee's "failfure] to act on behalf of the third-

l1 The "public policy" arguments advanced in Professor Zywicki's brief are irrelevant to the
legal question of whether plaintiffs are "intended beneficiaries" under Section 302. The
arguments are also misguided. Professor Zywicki contends that "the trend in Dartmouth's
Board," exemplified by its decision to increase the number Charter Trustees, "has been toward
the erosion of good governance and fiduciary duty''and reflects the College's "mounting disdain
for student and alumni input." Zywicki Br. at 4,7. That would come as a surprise to U.S. News
& World Report, which recently ranked Dartmouth as the nation's 9th-best college overall and
#l in undergraduate teaching. U.S. News &. World Report: Best Colleges 2071,
http://colleges.usnews.rankingsandreviews.com/best-colleges/national-universities-rankings (last
visited Au5.29,2010).

The Board's September 2007 governance change was the "latest in a long series" of
reviews and changes by the Board's Govemance Committee, all of which were undertaken to
fulfill the Board's responsibility to serve Dartmouth as a "strong and effective goveming body."
(SA-20.) The 2007 change resulted from a three-month process involving input from all current
and many former Trustees, "alumni leaders, . . . other members of the Dartmouth community,"
and "hundreds of alumni." (Id.) The Govemance Committee also consulted with experts in
college and nonprofit governance and carefully evaluated the practices of more than 30 of
Dartmouth's peer colleges and universities. (Id.) That deliberative process resulted in a
recommendation to add eight new Charter Trustee seats in order to give the Board the "needed
skills, capabilities, and diversity to match the breadth of Dartmouth's programs and meet the
challenges of higher education in the 21st century." (SA-21.) This recommendation was
premised it part on the Board's determination that there was no assurance that the Alumni
Trustee nomination process would produce a nominee who matches the College's greatest needs
at any particular time.

-29-
party's interests under the contract." Zywicki Br. at 19. The case upon which Professor Zywicki

relies-Forman v. Forman,2I7 N.E.zd 645 (N.Y. 1966)-is unique to family law and was

decided based on the premise that children are generally intended beneficiaries to separation

agreements. The only question was whether and in what procedural circumstances children

could sue to enforce these rights. See id. aI 648 ("Recognizing as we should such a right of

children in the beneficial provisions of a separation agreement for their direct benefit, the avenue

by which it may become enforceable depends on the circumstances of the parties.").

B. There Is No Evidence That the College and the Association Intended


in 1891 to Give Each and Every Dartmouth Alumnus the Right to
Enforce the Alleged Contract.

Plaintiffs' own pleadings show that there were only two parties to the alleged contract-

the College and the Association. There is no evidence that these two parties in 1891 intended to

allow each and every Dartmouth alumnus in perpetuity to sue to enforce their agreement.

Plaintiffs admit that "[t]he entire evidence of record with respect to the intentions of the

parties to the 1891 Agreement is contained in the two documents which together form the

Agreement: the June 23,789I Resolution of the College's Board of Trustees and the June 25,

1891 Report of the Association to the alumni." Appellants' Br. at 15-16. Those documents,

however, say absolutely nothing about conferring enforcement tights upon each individual

Dartmouth alumnus, an entirely unworkable result. (See AA-159-766; In fact,


^B-93-94.)
plaintiffs concede that the Association's June 25, l89l report-the principal basis for their claim

that they are intended beneficiarie5-ÉÉd6s5 not, in so many words, express the parties' intent to

grant the alumni standing to sue on the contract." Appellants'Br. at 18. The Association's

stated goal in 1 891 of conferring upon alumni a "real, substantial, personal responsibilíty" iî an

effort to "create and preserve thefir] live, constant, [and] active interest" in the College (AA-160

(emphasis in original)) shows at most that the Association viewed Dartmouth's thousands of

-30-
alumni as incidental benefìciaries of the agreement with no rights to enforce it. See Numerica

Sav. Bank, F.S.B. v. Mountain Lodge Inn, Corp.,134 N.H. 505, 512 (1991) (rejecting argument

that shareholder of corporation was third-party beneficiary to loan agreement simply because

promisee "'knew the rights and obligations under the floan] executed with fcorporation] were for

the ultimate benefit of fthe shareholderl"'); Hairston v. Pac-]0 Conference, 101 F.3d I3I5, 1320

(gth Cir. 1996) (concluding that "'vague, hortatory pronouncements"' regarding alleged

contracts' goal to realíze, inter alia, "'academic and athletic achievements of student-athletes"'

did not demonstrate "that the parties intended to create direct legal obligations between

themselves and fevery football player on a Pac-10 team].").

Moreover, none of the "surrounding circumstances fof the alleged contract] manifest an

intention by the promisee and promisor to confer fthe right to sue] on the third party." 9 Consn{

oN CoNTRACTS $ 44.6. Here, "the structure of the performance required under the .. .

contract"-which "often provides the critical indicum of intent in third party beneficiary

cases"--{oes not "directly benefit the would-be intended beneficiary." Pub. Serv. Co. of New

Hampshire v. Hudson Light & Power Dep't, 938 F.2d 338, 342 (lst Cir. 1991) (emphasis

omitted); see also Grossman v. Murray,l44 N.H. 345,348 (1999) ("'Unless the performance

required by the contract wlll directly benefit the would-be intended beneficiary, he is at best an

incidental beneficiary."') (emphasis in original). As plaintiffs' own petition alleges, the


College's performance obligation under the supposed contract ran directly to the Association, not

individual alumni: the Association nominated trustees and the College seated them. (AC-23 1[

16 ("Under the agreement, the Association was to amend its Constitution to provide for the

selection of trustees (whom the College would seat), and it was to have a recurring obligation to

select trustees to fill vacancies in alumni seats."); AC-24 I 16 ("The Association was to

-31 -
designate members to stand for election and to serve the College as Alumni Trustees."); AC-24\

17 ("The agreement would be implemented by the Association's choosing trustees to fill the next

five vacancies on the board, with the continuing right to choose those trustees' successors. The

parties well understood that the Association would have the right to choose one-half of the non-

ex fficio trustees thereafter."); AC-34 tf 58 ("One material term of the 1891 Agreement is that

the College seat persons nominated by the Association to one-half of the rLoÍr-ex fficio seats on

Dartmouth's board of trustees."); AC-35 fl 66 (same).

Plaintiffs' petition also makes unmistakably clear that the performance due to the College

under the alleged agreement came directly from the Association, not individual alumni.

According to the petition, in exchange for the College's alleged agreement to seat Alumni

Trustees nominated by the Association, the Association and its leaders (1) agreed to "table[]"

"fi]mminent legal actions"; (2) "agreed to use their best efforts to raise funds from alumni for the

College"; (3) "agreed to use their best efforts to raise funds from alumni for the College"; and

(4) agreed "to designate members to stand for election and to serve the College as Alumni

Trustees." (AC-24 I 16; see also AC-25 I27 ("In 1892, the Association used its best efforts to

raise funds from alumni for the College as pledged during the negotiation to obtain alumni

representation."); AA-50 ("After the Association voted to accept the Agreement . . [i]t

circulated an appeal to its members for donations to the College, lifted a public ultimatum

opposing alumni contributions which had been in place while the Association sought

representation on the Board, and forbore from filing a lawsuit against the Board.") (internal

citations omitted).)

Contrary to plaintiffs'suggestion, the alleged 1891 agreement did not guarantee or

require a vote by individual alumni on potential Alumni Trustees. As this Court previously

-32-
observed, for the first 100 years after the College and the Association reached their
understanding, alumni votes were rare occuffences:

Prior to 1990, when an alumni trustee seat became vacant the alumni council
(established in 1913 and given primary responsibility for selecting the alumni
nominees for the alumni trustee seats on the board) would select one individual to
be the alumni nominee for the trustee seat. Alternatively, candidates could be put
forward by petition of a group of alumni to oppose the alumni council's choice
and, if such a petition candidate emerged, all alumni would choose between the
two candidates by a balloting process run by the associatiot. In the absence of a
petition candidate, the alumni council's name was forwarded directly to the board
qs the alumni nominee for election as a trustee.

Brzica,147 N.H. a|452-53 (emphasis added).

As Judge Vaughan concluded, "the circumstances of the 1891 Agreement do not show

that the parties to it intended a benefit to flow directly to each alumnus in his or her individual

capacity." (AC-10.) Judge Vaughan explained:

The 1891 Agreement gave the Association, as a single, collective entity, the
ability to name five trustees. It did not give each individual alumnus a right to do
so. The undisputed facts do not show that the parties to the 1891 Agreement
intended each member of the Association and all future members of the
Association to have the benefit, in their individual capacities, of being able to
nominate half of the members of the Board. The Association currently has
approximately 69,000 members. The 1891 Agreement conferred a benefit on
alumni, not on each alumnus. In order to effectuate the purpose of the 1891
Agreement-giving alumni a greater role in management of Dartmouth College-
it is not necessary or appropriate to recognize a right of performance in each
individual alumnus. The 1891 Agreement would be entirely unworkable if it
were interpreted to confer such a benefit and if such a right of performance were
recognized.

(AC-l0-1 1.)

Plaintiffs' argument also proves too much. Plaintiffs contend "that no cancellation by the

Association of the 1891 Agreement could be effected without a vote of its members."
Appellants' Br. at 25. But if plaintiffs are correct that every Dartmouth graduate is an intended

third-party beneficiary of the alleged agreement with standing to enforce it, then even with a

majority vote of its membership, the Association would be powerless to modiSr or repeal that

-JJ-
supposed contract. Under Section 311(3) of the Restatement (Second) of Contracts, a promisee

cannot modify or terminate the rights of an intended third-party beneficiary if the third party has

taken action in reliance upon the agreement. See also Appellants' Br. at 30-31 ("[A] contract

promisee has no power to cut off the rights of a third-party beneficiary after 'the beneficíary . . .

materially changes his position in justifiable reliance on the promise"'). In their petition,

plaintiffs assert that "[f]or ll7 years, the Association and its members (including, but not limited

to, the Plaintiffs) have taken countless actions in reliance" on the alleged agreement. (AC-28

1130.) Thus, if plaintiffs were conect on the law, then the Association would be unable to amend

or terminate the alleged 1891 agreement in perpetuity without the consent of all of its members.

In other words, a single Dartmouth alumnus, claiming that he or she is an intended third-party

beneficiary who took action in reliance upon the alleged agreement by voting in Trustee
elections or giving.money to the College, could block the Association from modifying the

purported contract even if every other Association member supported the modification. That

somewhat extreme hlpothetical is not all that different from what plaintiffs have sought to do

here, by asking the judiciary to ovemrle the decision of the 600/o electoral majority who voted to

end the prior lawsuit. As Judge Vaughan correctly held, plaintiffs' "own admissions regarding

the Association's ability to end the alleged agreement to maintain parity negates their claim that

they are intended third-party beneficiaries." (AC-12.)

Finally, as Judge Vaughan recognized, "were the Court to recognize lplaintiffs] as

intended third-party beneficiaries, it would embroil the judiciary in the internal govemance of the

Association." (AC-12) In so ruling, Judge Vaughan put the current lawsuit in the proper

perspective:

If a majority of the alumni have voted for leadership that does not want to enforce
the 1891 Agreement, it is not the Court's place to find that a group of seven

-34-
alumni may impose their will on the remaining alumni. By recognizinga right of
performance in the petitioners, the Court would interfere with the Association's
internal affairs. Judicial intervention into disagreements between factions of the
Association would be improper in the absence of injustice or illegality.

(AC-I2 (citing Bricker, 110 N.H. a|470).) As explained above, the facts in this case fall far

short of establishing injustice or illegality within the meaningof Bricker.

CONCLUSION

For the foregoing reasons, this Court should affirm Judge Vaughan's decision in its

entirety.

REOUEST FOR ORAL ARGUMENT

Dartmouth requests 15 minutes of oral argument before the full Court. Dartmouth's

counsel, Richard C. Pepperman, II, whose motion to be admitted to this Court pro hac vice is

pending, will argue on behalf of the College.

Respectfully submitted,

TRUSTEES OF DARTMOUTH COLLEGE

By Its Attorneys,

MoLANE, GRAF, RAULERSON & MIDDLETON,


PROF ONAL ASSOCIATION

Date: September I,2010 By:


Felmly, Bar No. 787
900 Elm Street, P.O. Box 326
Manchester, New Hampshire 03105
Telephone (603) 625-6464

Richard C. Pepperman, II
SULLIVAN & CROMWELL LLP
725 Broad Street
New York, New York 10004
Telephone (212) 5 5 8-4000

-35
CERTIFICATE OF SERVICE

I hereby certify that on September I,2010, copies of the foregoing were served by hand
to Attomey Eugene M. Van Loan III, V/adleigh, Starr & Peters, P.L.L.C., 95 Market Street,
Manchester, NH 03101, counsel for Appellants, and by first-class mail to Andru H. Volinks¡
Bernstein, Shur, Sawyer & Nelson, 670 N. Commercial Street, Suite 108, Manchester, NH 03105
and Harvey Silvergate, Zalkind, Rodriguez, Lunt & Duncan, 654 Atlantic Avenue, Boston, MA
02110, counsel for Amicus Curiae, Professor Todd J. Zywícki.

Felmly, Bar No. 787

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