Posted January 29th, 2020.
By NORA DOYLE-BURR
Valley News Staff Writer
HANOVER — A federal judge has granted preliminary approval to a $14 million settlement in the class-action sexual harassment lawsuit brought by nine women against Dartmouth College.
U.S. District Court Chief Judge Landya McCafferty, in her order filed in Concord on Wednesday, said that she will likely be able to approve the proposed class and the proposed settlement for the case.
“A class action would achieve an efficient resolution of the class claims, avoiding unnecessary and duplicative litigation for all parties and the judicial system,” McCafferty wrote.
The case centers around four claims: Dartmouth violated Title IX by creating a hostile education environment in the Department of Psychological and Brain Sciences; by engaging in gender discrimination; by breaching fiduciary duty; and by being negligent in retention and supervision.
The plaintiffs — current and former students in PBS — alleged in their suit first filed in November 2018 that Dartmouth knew and allowed three tenured professors in the department, Todd Heatherton, William Kelley and Paul Whalen, to create and normalize a sexualized culture, which included a range of behaviors from comments about female students’ appearance to sexual assault.
The women also alleged that the professors — who either retired or resigned before they could be fired following internal investigations by the college — conditioned their mentorship on the students’ participation in drinking binges, and sexual banter and activity.
Most class members will receive a base payment of $1,000 and be eligible for a supplemental payment based on the effect of the professors’ misconduct on their lives.
Both Dartmouth and the plaintiffs welcomed the judge’s preliminary approval in statements on Wednesday.
“This settlement provides significant benefits to class members and future generations of students,” said Deborah Marcuse, a Baltimore-based partner of Sanford Heisler Sharp, which represents the plaintiffs. “We are supremely proud of the plaintiffs who pursued justice here. As they had hoped, Dartmouth will be a stronger institution as a result of their courage.”
Dartmouth spokeswoman Diana Lawrence, in an emailed statement, thanked the plaintiffs for coming forward “alongside other students to shine a light on the unacceptable environment created by three former faculty members.”
Lawrence pointed to an ongoing effort — the Campus Culture and Climate Initiative — to address sexual harassment on campus.
“We are confident that working together Dartmouth can be a place where — without exception and across all disciplines — members of our community can thrive in their studies and careers in a campuswide environment that is welcoming, productive, professional, and supportive,” she said.
Eric MacLeish, a Boston-based attorney who has represented victims of clerical abuse and litigated against several private schools in New England, said that while class actions in cases of sexual abuse and harassment are rare, it was warranted in this case.
“There seemed to be a common practice, or what we call modus operandi, and I think that this spares a lot of other people coming forward and having to press claims against Dartmouth,” said MacLeish. “Instead they’ll be paid out of the settlement fund and compensated, which is an easier way to do it.”
Though individuals might have gotten more money if they had pursued their claims on their own, that can be difficult for victims of abuse, said MacLeish, who was not involved in the Dartmouth case.
“I think the judge did the right thing in preliminarily approving this,” MacLeish said, noting that he hoped it might set a precedent for similar cases in the future.
The class, which the parties estimate includes 90 people, is proposed to consist of current and former women graduate students at Dartmouth who were advisees or assistants of one of the three professors between April 1, 2012, and Aug. 31, 2017, and those who co-authored papers with the professors during that time period.
The class also includes those who do not fit within those categories, but were graduate students in the department between March 31, 2015, and Aug. 31, 2017, and say they experienced harm as a result of the professors’ alleged misconduct.
McCafferty, in her order, said the proposed class likely meets four standards set by Federal Rule of Civil Procedure 23: the number of people involved, the commonality and typicality of their claims, and the adequacy of the class representatives.
She said 90 members meets the standard of more than 40 for a class action. In addition, McCafferty said that though members of the class may have different degrees of harm from their experience, it comes from a common source: the hostile environment created by the professors.
“Plaintiffs here claim that the professors collectively created a climate of harassment that pervaded the entire Department, infecting both public and private meetings and formal and informal gatherings,” McCafferty said.
In addition, McCafferty said the class representatives’ experiences, though individual to each of them, are typical of the class because they are “emblematic of the baseline of sexual harassment that pervaded the department.”
“In other words, the representative plaintiffs experienced the barrage of comments about their appearance and sex lives, unwanted touching, and forced drinking that was the common experience of the class, as well as even more severe forms of harassment,” McCafferty said.
McCafferty said that she is “likely” to find that the proposed settlement “is fair, reasonable, and adequate” because the parties conducted sufficient discovery and bargained at arm’s-length before coming to an agreement.
McCafferty appointed the plaintiff’s attorneys with Sanford Heisler Sharp to serve as class council for the settlement, as well as Maria C. Walsh to serve as independent claims expert and Rust Consulting to serve as settlement administrator.
McCafferty ordered that Sanford Heisler Sharp notify members of the proposed class of the settlement by mail by Feb. 12. Rust Consulting also will try to reach members by email and post a notice to its website: rustconsulting.com.
An application for attorney’s fees and costs is due in court by May 26, and a fairness hearing is scheduled for June 25 at 10 a.m. in court in Concord.