UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kristina Rapuano et al.

v. Civil No. 18-cv-1070-LM Opinion No.

Trustees of Dartmouth College

O R D E R

Plaintiffs Kristina Rapuano, Vassiki Chauhan, Sasha

Brietzke, Annemarie Brown, Andrea Courtney, Marissa Evans, Jane

Doe, Jane Doe 2, and Jane Doe 3 bring this suit on their own

behalf and on behalf of a putative class against the Trustees of

Dartmouth College (“Dartmouth”). Plaintiffs bring claims under

Title IX,

et seq., and New Hampshire common

law, alleging that Dartmouth was aware that three professors in

the Psychological and Brain Sciences Department created a

sexually hostile education environment for female students and

that Dartmouth did not take adequate steps to protect its

students or stop the professors’ misconduct. Plaintiffs move

for preliminary approval of a comprehensive class action

settlement in this matter under Federal Rule of Civil Procedure

23(e). Doc. no. 47. Dartmouth does not oppose the motion. On

October 17, 2019, the court held a hearing on plaintiffs’

motion. Plaintiffs subsequently filed supplemental briefing as allowed by the court. For the following reasons, the court

grants plaintiffs’ motion for preliminary approval of the class

action settlement.

STANDARD OF REVIEW

I. Preliminary Approval Versus Final Approval

Court approval of a class action settlement proceeds in two

stages. See Michaud v. Monro Muffler Brake, Inc., No. 2:12-CV-

00353-NT,

, at *8 (D. Me. Mar. 17, 2015); 4

William B. Rubenstein, Newberg on Class Actions § 13.10 (5th ed.

2019). First, the parties present a proposed settlement to the

court for “preliminary approval” and ask the court to make a

preliminary determination regarding class certification. See

Rubenstein, supra, § 13.10. At this preliminary stage, the

court must determine whether it “will likely be able to”: (1)

certify the class for purposes of judgment on the proposed

settlement; and (2) approve the settlement proposal under Rule

23(e)(2). Fed. R. Civ. P. 23(e)(1)(B). If the court is

satisfied on both inquiries, the court should “direct notice in

a reasonable manner to all class members who would be bound” by

the proposed settlement. Fed. R. Civ. P. 23(e)(1)(B). After

notice to the class, the court holds a fairness hearing at which

class members may appear to support or object to the proposed

settlement. See Rubenstein, supra, § 13.10.

2 Second, the court must decide whether to grant final

approval of the proposed settlement. Under Rule 23(e)(2), the

court may grant final approval of a class action settlement if

it can certify the proposed class, see Amchem Products, Inc. v.

Windsor,

(1997), and if it finds that the

proposed agreement is “fair, reasonable, and adequate,” Fed. R.

Civ. P. 23(e)(2).

Prior to amendment of Rule 23(e) in 2018, the rule did not

specify what standard the court should apply at the preliminary

approval stage. See In re Payment Card Interchange Fee & Merch.

Disc. Antitrust Litig.,

, 28 (E.D.N.Y. 2019). In

the absence of explicit direction in the rule, most courts

applied a “less stringent” or more “lax” standard at the

preliminary approval stage regarding the requirements for class

certification and approval of the proposed settlement. See,

e.g., Ross v. Lockheed Martin Corp.,

(D.D.C. 2017); Cotter v. Lyft, Inc.,

, 1035-

36 (N.D. Cal. 2016).

In 2018, Rule 23(e) was amended to provide a standard

governing preliminary approval. As outlined above, Rule

23(e)(1)(B) now provides that, in order to preliminarily approve

the settlement, the court must find that it “will likely be able

to” certify the class for the purposes of settlement and find

that the settlement is fair, reasonable, and adequate. Fed. R.

3 Civ. P. 23(e)(1)(B). Since the amendment, a growing number of

courts have interpreted this “likelihood standard” as “more

exacting” than the relaxed standard courts applied prior to the

amendment. In re Payment Card Interchange, 330 F.R.D. at 28

n.21; see also In re GSE Bonds Antitrust Litig., __ F. Supp. 3d

___,

, at *1 (S.D.N.Y. Nov. 7, 2019); In re

Premera Blue Cross Customer Data Sec. Breach Litig., No. 3:15-

MD-2633-SI,

, at *1 (D. Or. July 29, 2019);

O’Connor v. Uber Techs., Inc., No. 13-CV-03826-EMC,

, at *4 (N.D. Cal. Mar. 29, 2019); Stoddart v. Express

Servs., No. 212CV01054KJMCKD,

, at *5 (E.D. Cal.

Feb. 1, 2019).

This court agrees that the “likelihood” standard spelled

out in Rule 23(e) demands a searching—not a relaxed—inquiry.

Indeed, the Advisory Committee Notes to the 2018 amendment state

that “The decision to give notice of a proposed settlement to

the class is an important event. It should be based on a solid

record supporting the conclusion that the proposed settlement

will likely earn final approval after notice and an opportunity

to object.” See Fed. R. Civ. P. Rule 23(e), Adv. Commt. Notes,

2018 Amdnt. (emphasis added). Further, it makes little

practical sense for a district court to conduct a less rigorous

inquiry at the preliminary approval stage. As explained by one

district court:

4 If the district court, by taking a quick look rather than a careful one, misses a serious flaw in the settlement, the parties and the court will waste a great deal of money and time notifying class members of the agreement, only to see it rejected in the end, requiring the parties to start over. The same is true if the district court does identify a potentially serious flaw at the preliminary stage but waits until final approval to conclude that it’s fatal. What’s worse, if a court waits until the final approval stage to thoroughly assess the fairness of the agreement, momentum could have a way of slanting the inquiry, in a manner that deprives the class members of the court protection that Rule 23 demands.

Cotter,

. Given these considerations,

this court will conduct a careful review at this preliminary

stage to ensure that it will likely be able to approve the

settlement and certify the class after the final hearing. This

determination remains preliminary in the sense that it is

subject to any additional information—including further factual

development or objections by class members—that may come to

light prior to or during the fairness hearing. See

at 1036-

37; Rubenstein, supra, § 13.18.

II. Settlement Class Certification Versus Litigation Class Certification

To certify either a settlement class or a litigation class,

the court must find that the requirements of Federal Rule of

Civil Procedure 23 are met. See Amchem,

.

Rule 23(a) states four threshold certification requirements

applicable to all class actions: (1) numerosity; (2)

5 commonality; (3) typicality; and (4) adequacy. See Fed. R. Civ.

P. 23(a); Amchem,

. In addition to Rule 23(a)’s

threshold requirements, a party seeking certification must also

show that the action falls into one of the categories outlined

in Rule 23(b). Amchem,

. Plaintiffs seek to

certify under Rule 23(b)(3). To qualify for certification under

that rule, the proponents of the action must show that common

questions of law or fact “predominate over any questions

affecting only individual members” and that class resolution is

“superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3);

Amchem,

.

Although these requirements apply to both settlement and

litigation class certifications, a district court should apply

the criteria differently depending on the purpose of

certification. See Amchem,

; In re Hyundai &

Kia Fuel Econ. Litig.,

(9th Cir. 2019); see

also Fed. R. Civ. P. 23(e)(1), Adv. Commt. Notes, 2018 Amdnt.

Specifically, when considering whether to certify a class for

the purposes of settlement only, a court “need not inquire

whether the case, if tried, would present intractable management

problems.” Amchem,

. On the other hand, other

aspects of Rule 23—for example, those preventing overbroad class

definitions—deserve “undiluted, even heightened attention” in

6 the settlement context.

Thus, a district court should

apply the Rule 23 requirements differently—in some ways more

leniently, in other ways more vigorously—when it is certifying a

class for the purposes of settlement only. See

;

In re Hyundai,

.

Plaintiffs argue that the Rule 23 certification standard is

“relaxed” when the court is certifying a class for settlement

purposes only. Doc. no. 49 at 14. However, the cases

plaintiffs cite for this assertion support the proposition,

explained above, that the certification requirements apply

differently in the context of settlement, not that the standard

is less rigorous. See, e.g., In re Hyundai,

;

In re Premera Blue Cross,

, at *2; Swinton v.

SquareTrade, Inc., No. 418CV00144SMRSBJ,

, at *12

(S.D. Iowa Feb. 14, 2019).1 In sum, the court will apply the

Rule 23 certification requirements here differently, but not

necessarily more leniently, because plaintiffs seek

certification for the purposes of settlement only.

1 Plaintiffs also rely heavily on the statement in Newburg on Class Actions that the “standards for certification are laxer at settlement.” Doc. no. 49 at 14 (quoting 4 Newburg on Class Actions § 13.18). This statement may reflect how some courts have treated certification for settlement purposes since Amchem. However, it is directly contradictory to the Supreme Court’s statement in Amchem that, although settlement is a relevant consideration, it “does not inevitably signal that class-action certification should be granted more readily than it would be were the case to be litigated.” Amchem,

n.16.

7 BACKGROUND

The named plaintiffs are current or former Dartmouth

students affiliated in some way with the Psychological and Brain

Sciences Department (“the Department”) where they worked with

former tenured professors Todd Heatherton, William Kelley,

and/or Paul Whalen (“the professors”). Plaintiffs allege that

Dartmouth knowingly allowed the professors to create and

normalize a culture of sexual harassment of female students in

the Department. The professors’ alleged misconduct ranged in

severity from comments about female students’ appearance to

sexual assault. Plaintiffs allege that the professors also

routinely conditioned their mentorship and advising services to

female students on the students’ acquiescence to sexual advances

or participation in binge-drinking or party culture. Plaintiffs

claim that Dartmouth received multiple reports of the

professors’ sexual harassment but took no meaningful action to

reprimand the professors or to protect the students.

In April 2017, a group of female students informed

Dartmouth’s Title IX office of the professors’ rampant sexual

harassment. Title IX provides that “[n]o person in the United

States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving

8 Federal financial assistance.”

(a). Sexual

harassment is a form of discrimination prohibited by Title IX.

See Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ.,

(1999).

Following the April 2017 report, Dartmouth initiated a

formal investigation into the allegations against the

professors. All three professors either resigned or retired in

July 2018. Plaintiffs commenced this suit as a putative class

action in November 2018. Their amended complaint asserts the

following claims on behalf of the putative class: violations of

Title IX (counts one and two); breach of fiduciary duty (count

three); and negligent supervision and retention (count four).2

DISCUSSION

Plaintiffs request that the court grant preliminary

approval of the proposed class action settlement. In making

this determination, the court must consider whether it will

“likely” be able to certify the proposed class and approve the

proposed settlement. See Fed. R. Civ. P. 23(e)(1)(B).

2 The amended complaint also asserts two additional claims against Dartmouth: a claim of quid pro quo sexual harassment under Title IX on behalf of all named plaintiffs (count five); and a claim of retaliation under Title IX on behalf of Chauhan, Brietzke, Brown, Evans, and Jane Doe (count six).

9 I. Preliminary Class Certification

The court first turns to whether it will “likely” be able

to certify the proposed class for the purposes of settlement.

See Fed. R. Civ. P. 23(e)(1)(B).

A. Class Definition

Plaintiffs propose preliminary certification of the

following class:

(A) All current and former women graduate students at Dartmouth who meet any of the following criteria:

(i) Between April 1, 2012 and August 31, 2017 were graduate advisees of one [or] more of Todd Heatherton, William Kelley, and/or Paul Whalen (i.e., the “Three Former Professors”);

(ii) Between April 1, 2012 and August 31, 2017 were teaching or research assistants for one or more of the Three Former Professors;

(iii) Were graduate students in [the Department] who, between April 1, 2012 and August 31, 2017, (i) coauthored at least one paper with one or more of the Three Former Professors based on research physically conducted in the lab during that time period, or (ii) co-authored at least three papers with one or more of the Three Former Professors; OR

(iv) Were graduate students in [the Department] between March 31, 2015 and August 31, 2017 who do not fit within categories (i)-(iii), but who will attest that they experienced dignitary, emotional, educational and/or professional harm during this period as a result of the misconduct of one or more of the Three Former Professors.

10 (B) All current and former women undergraduate students at Dartmouth who, between April 1, 2012 and August 31, 2017, worked as research assistants for one or more of the Three Former Professors. As used herein “research assistants” includes individuals working on an honors thesis or independent research study in one or more of the Three Former Professors’ labs.

Doc. no. 47-3 at 11-12.

As discussed at the hearing, the court is most focused on

whether the proposed class can meet the element of commonality

under Rule 23(a) and the requirement of predominance under Rule

23(b)(3).3 The court will nevertheless address each of the

certification requirements below.

B. Rule 23(a) Requirements

i. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that

joinder of all members is impracticable.” Fed. R. Civ. P.

23(a)(1). “No minimum number of plaintiffs is required to

maintain a suit as a class action, but generally if the named

plaintiff demonstrates that the potential number of plaintiffs

exceeds 40, the first prong of Rule 23(a) has been met.” Clough

3 At the hearing, the court raised concerns about whether commonality and predominance could be met in this case because whether each class member experienced a hostile education environment would require an individualized inquiry. Plaintiffs filed a supplemental memorandum on this topic following the hearing. The court has considered that briefing in reaching its decision.

11 v. Revenue Frontier, LLC, No. 17-CV-411-PB,

, at

*3 (D.N.H. June 19, 2019) (quoting Garcia-Rubiera v. Calderon,

(1st Cir. 2009)). Plaintiffs attest that the

proposed class consists of approximately 90 current or former

graduate and undergraduate students who worked with the

professors during the class period. This satisfies the

numerosity requirement.

ii. Commonality

Rule 23(a)(2) asks whether there are “questions of law or

fact common to the class.” Fed. R. Civ. P. 23(a)(2). The

Supreme Court examined this requirement for class certification

in Wal-Mart Stores, Inc. v. Dukes,

(2011).

That case involved a putative nationwide class action on behalf

of 1.5 million female employees of Wal-Mart who claimed that

Wal-Mart violated Title VII by discriminating against them in

pay and promotion on the basis of their sex.

.

The Supreme Court stated that demonstrating commonality requires

proof that all class members “have suffered the same injury.”

(internal quotation marks omitted). The Court

explained that this means that the “claim must depend upon a

common contention.”

That “common contention” must be

“capable of classwide resolution—which means that determination

of its truth or falsity will resolve an issue that is central to

12 the validity of each one of the claims in one stroke.”

In

illustrating this test, the Court gave two examples that would

have satisfied the “same injury” requirement in Dukes: “the

assertion of discriminatory bias on the part of the same

supervisor” and “a companywide discriminatory pay and promotion

policy.”

.

These examples describe injurious conduct by the defendant,

not the type or extent of damages suffered by class members.

Consequently, the Supreme Court’s examples clarify that to

suffer “the same injury,” class members need not necessarily

have experienced the same damages. In fact, the Fifth Circuit

has interpreted the two examples offered in Dukes as

demonstrating that “the same injury” test “can be satisfied by

an instance of the defendant’s injurious conduct, even when the

resulting injurious effects—the damages—are diverse.” In re

Deepwater Horizon,

(5th Cir. 2014). Other

courts have similarly held that the “same injury” requirement

from Dukes is satisfied when all class members were subject to

the same injurious conduct by the defendant. See, e.g., Parsons

v. Ryan,

(9th Cir. 2014); Rodriguez v. Nat’l

City Bank,

(3d Cir. 2013); Soseeah v. Sentry

Ins., No. CIV 12-01091 RB/KK,

, at *4 (D.N.M.

Sept. 6, 2016).

13 In the Title VII context, courts have found this “same

injury” test (and therefore the commonality requirement)

satisfied when plaintiffs raised the common contention that the

class suffered the same injury of an objectively hostile or

abusive work environment. See Howard v. Cook Cty. Sheriff’s

Office, No. 17 C 8146,

, at *5-7 (N.D. Ill. Aug.

12, 2019) (finding common question of whether the “ambient

harassment” experienced by female employees was sufficiently

severe and pervasive to support a hostile work environment

claim); Brand v. Comcast Corp., Inc.,

(N.D.

Ill. 2014) (finding commonality met based on common question of

“whether [class members] heard racially offensive terms during

the course of their employment to the extent that [the comments]

constituted a hostile work environment”); Newsome v. Up-To-Date

Laundry, Inc.,

(D. Md. 2004) (finding common

question of whether use of racial slurs was severe and pervasive

enough to support hostile work environment claim); Jenson v.

Eveleth Taconite Co.,

(D. Minn. 1991)

(finding common question of whether a reasonable woman would

find that profanity, sexually explicit posters and graffiti, and

unwanted touching made the work environment hostile).4

4 See also Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., No. CIV 04-2510-PHX-EHC,

, at *9 (D. Ariz. Jan. 12, 2006) (identifying common questions as whether employee’s derogatory emails were objectively offensive and whether the

14 Broadly speaking, Title VII and Title IX prohibit analogous

conduct. See Brown v. Hot, Sexy & Safer Prods., Inc.,

(1st Cir. 1995), abrogation on other grounds recognized

in Martinez v. Cui,

(1st Cir. 2010). Title VII

prohibits discrimination in employment practices on the basis of

an individual’s race, color, religion, sex, or national origin,

and Title IX prohibits discrimination in educational programs on

the basis of sex. See 42 U.S.C. § 2000e-2(a);

(a). Hostile environment claims under both Title VII and

Title IX require proof that plaintiffs were subjected to an

objectively hostile work environment—that the discrimination or

sexual harassment was so severe, pervasive, and objectively

offensive that a reasonable person would consider the

environment hostile. See Rosario v. Dep’t of Army,

(1st Cir. 2010) (Title VII); Brown,

(Title IX). Evidence that the discriminatory behavior was not

isolated or was conducted in the presence of a group of

emails, when combined with the employer’s response, created a hostile work environment for Latino employees); Bremiller v. Cleveland Psychiatric Inst.,

(N.D. Ohio 2000)(finding commonality met by common question of whether sexual harassment of female employees created hostile work environment).

15 employees supports a finding that the workplace was objectively

hostile. See Brand,

.

Like the Title VII cases cited above, plaintiffs’ Title IX

claim of a hostile education environment is premised on the

common contention that the professors’ sexual harassment was

severe, pervasive, and objectively offensive enough that a

reasonable person would find that it created a hostile or

abusive educational environment. Specifically, plaintiffs

allege that the professors normalized a highly sexualized

culture in the Department by:

• favoring the hiring of young, attractive female students to work in their labs and openly debating who had “the hottest lab”; • favoring female students who participated in frequent drinking binges, engaged in sexual banter, and tolerated unwanted touching; • shunning or retaliating against women who would not participate in drinking binges or who rebuffed sexual advances; • openly commenting on female students’ appearance, including ranking their attractiveness in front of other students; • and openly carrying on sexual relationships with female students.

The professors directed this behavior at more than just the

named plaintiffs and often engaged in this behavior in group

settings or in public. See, e.g., doc. no. 28 at ¶¶ 169, 183,

187. These allegations raise the common question whether the

professors’ sexualized comments and conduct were severe,

16 pervasive, and objectively offensive enough for a reasonable

person to consider the educational environment hostile.

Importantly, this is not a case where plaintiffs seek class

certification on a hostile environment claim based on the

geographically dispersed and varied conduct of many different

supervisors—circumstances under which other courts have found

commonality lacking. For example, in Elkins v. Am. Showa Inc.,

(S.D. Ohio 2002), plaintiffs sought to certify a

class of female employees who worked at one manufacturing plant

over a several year period,

. The court found that

the women could not establish commonality on their Title VII

hostile work environment claim because they failed to “show a

common pattern or practice, or an equally egregious level, of

sexual harassment among the various areas of the plant, among

the employees supervised by different supervisors and working

with different co-workers, and among the employees on different

shifts.”

.

Unlike in Elkins, all putative class members here worked

with one or more of the professors and were therefore exposed to

the same misconduct. See Dukes,

(suggesting

that “the assertion of discriminatory bias on the part of the

same supervisor” could satisfy commonality); see also Newsome,

(“The plaintiff’s burden with respect to

commonality is not onerous when few decision makers at one work

17 location are involved.”). Even though some class members may

only have worked with one of the professors, all three

professors are alleged to have engaged in substantially the same

degrading and sexualized behavior.

Additionally, while in Elkins it appeared that there were

merely pockets of hostility dispersed throughout the plant,

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. Cf. Elkins,

. Based on

plaintiffs’ allegations, the professors’ misconduct created a

baseline of equally egregious sexual harassment to which all

class members were subjected.

There is no doubt, however, that class members experienced

the professors’ sexual harassment to different degrees. For

example, several of the named plaintiffs allege that they were

subjected to unwanted touching, while others allege that they

were forced into nonconsensual intercourse. But the fact that

class members experienced the hostile environment differently

does not defeat a finding of commonality. See Applegate v.

Formed Fiber Techs., LLC, No. 2:10-CV-00473-GZS,

, at *6 (D. Me. July 27, 2012) (“Where class members have

different degrees of injury or even where defenses might exist

only as to particular individuals, commonality has been found

18 for class certification.”); Brand,

(“A hostile

work environment may be experienced differently from one person

to the next, but it is nonetheless a single unlawful practice

under Title VII.” (internal quotation marks omitted)).

In sum, the court is convinced that whether the professors’

conduct was sufficiently severe, pervasive, and objectively

offensive enough to constitute an objectively hostile education

environment is a common question that satisfies the commonality

requirement of Rule 23(a)(2). Plaintiffs need only articulate a

single common question to meet the commonality requirement.

Dukes,

. That requirement is met here.

iii. Typicality

Next, plaintiffs must show “typicality” or that their

claims or defenses are “typical of the claims or defenses of the

class.” Fed. R. Civ. P. 23(a)(3). To be typical, the

representative plaintiffs’ claims must “arise from the same

event or practice or course of conduct that gives rise to the

claims of other class members, and [be] based on the same legal

theory.” Garcia-Rubiera,

(internal quotation

marks, brackets, and ellipsis omitted). The representative

plaintiffs’ claims and those of absent class members need not be

identical; they need only “share the same essential

characteristics.” Ouadani v. Dynamex Operations E., LLC, ___ F.

19 Supp. 3d. ___,

, at *8 (D. Mass. Sept. 13, 2019)

(internal quotation marks omitted). As with commonality, “a

difference in damages arising from a disparity in injuries among

the plaintiff class does not preclude typicality.” Applegate,

, at *6; see also Dukes,

n.5

(explaining that the commonality and typicality requirements

tend to “merge”).

Courts have found typicality satisfied where a group of

putative class members are exposed to the systematic failures of

an institution. See Connor B. ex rel. Vigurs v. Patrick,

(D. Mass. 2011) (finding typicality met where

entire class of children in custody of department of children

and families were exposed to unreasonable risk of harm);

Bremiller,

(finding typicality met where

representative plaintiff and class members experienced the same

kind of sexual harassment that employer failed to address).

Here, the class representatives5 and absent class members were

exposed to the same risk of harm (the professors’ sexual

harassment) by Dartmouth. And the class representatives’ and

absent class members’ claims all rely on the same legal theories

5 The proposed class representatives are: Rapuano, Chauhan, Brietzke, Brown, Courtney, Evans, Doe, and Doe 2. Jane Doe 3, although a named plaintiff, is not a proposed class representative.

20 and arise from the same course of conduct: the professors’

normalization of sexual harassment of female students that

Dartmouth facilitated through its inaction. These facts support

a finding of typicality. See Brown v. Cook Cty., No. 17 C 8085,

, at *10 (N.D. Ill. Aug. 12, 2019) (finding

typicality met when all class members’ claims shared common

characteristic of alleging that they were subject to hostile

work environment as a result of defendants’ failure to address

sexualized behavior by inmates in the jail).

It is true that the class representatives’ experiences are

likely illustrative of the most serious incidents of sexual

harassment perpetrated by the professors and allowed by

Dartmouth. For example, plaintiff Rapuano alleges that

Professor Kelley coerced her into a two-year relationship with

him during which Kelley had intercourse with Rapuano while she

was too intoxicated to consent, consistently sent her graphic

text messages, and conditioned his academic advisement on

Rapuano’s continued sexual relationship with him. See doc. no.

28 at ¶¶ 86-125. While the class representatives’ experiences

include extreme examples of harassment, they are also emblematic

of the baseline of sexual harassment that pervaded the

Department. See, e.g., id. at ¶¶ 172, 196. In other words, the

representative plaintiffs experienced the barrage of comments

about their appearance and sex lives, unwanted touching, and

21 forced drinking that was the common experience of the class, as

well as even more severe forms of harassment. See Brown,

, at *11 (finding typicality despite fact that some

class members experienced fewer sexually harassing incidents and

therefore were injured to a lesser extent than others). The

class representatives’ claims are therefore typical of the

class.

iv. Adequacy

Rule 23(a)(4) requires that the “representative parties

will fairly and adequately protect the interests of the class.”

Fed. R. Civ. P. 23(a)(4). This requirement has two prongs: (1)

“that the interests of the representative party will not

conflict with the interests of any of the class members”; and

that chosen counsel “is qualified, experienced and able to

vigorously conduct the proposed litigation.” Clough,

, at *4 (internal quotation marks omitted).

With respect to the first prong, the court has not

identified any way in which the class representatives’ interests

conflict with those of the unnamed class members. Nevertheless,

the court notes an unusual aspect of this class action: two of

the class representatives (Jane Doe and Jane Doe 2) are

proceeding under pseudonyms. The court previously raised

concerns about the prospect of a pseudonymous plaintiff acting

22 as a class representative. See Endorsed Order (Nov. 30, 2018).

The court’s reservation was based on the important role class

representatives play as the public face of the class action.

Putative class members have an interest in knowing the

identities of all class representatives so that they may assess

whether the representatives adequately represent them and

whether they wish to participate in the action. See In re

Ashley Madison Customer Data Sec. Breach Litig., No. 2669,

, at *4-5 (E.D. Mo. Apr. 6, 2016) (ruling that

plaintiffs could not proceed pseudonymously as class

representatives because the class members and public had

interest in knowing who was guiding and directing the

litigation).

The court’s concerns, however, are assuaged by the terms of

the proposed settlement agreement. A provision in the proposed

settlement agreement allows putative class members to gain

confidential access to Jane Doe’s and Jane Doe 2’s identities.

Doc. no. 47-3 at 21-22. This provision adequately preserves

each class member’s right to know who is leading the class

action while still maintaining Jane Doe’s and Jane Doe 2’s

privacy. Given this provision, the court permits Jane Doe and

Jane Doe 2 to serve as pseudonymous class representatives.6

6 The court observes that there remain two outstanding motions for leave for Jane Doe 2 and Jane Doe 3 to proceed under

23 Turning to the second prong of the adequacy inquiry, the

court is convinced that proposed class counsel, Sanford Heisler

Sharp, LLP, is eminently qualified to spearhead this class

action settlement. Sanford Heisler Sharp has extensive

experience in litigating class actions of this nature. See doc.

no. 47-8 & 47-9. It has demonstrated that experience through

its performance in this litigation thus far. The adequacy

requirements of Rule 23(a)(4) are satisfied.

C. Rule 23(b)(3) Requirements

As explained above, to certify a class under Rule 23(b)(3),

plaintiffs must demonstrate the “predominance” of common issues

over individual issues and the “superiority” of resolving the

dispute via a class action. Fed. R. Civ. P. 23(b)(3). Rule

23(b)(3) includes a non-exhaustive list of factors the court

should consider in making its “predominance” and “superiority”

assessments:

pseudonyms, to which Dartmouth objected prior to the parties’ mediation. Doc. nos. 29-30, & 34. The proposed settlement agreement states that the parties agree to file a joint motion requesting that the Jane Doe and Jane Doe 2 pseudonyms continue to be used on the public docket and that the parties agree that Jane Doe 3 may also proceed pseudonymously. Doc. no. 47-3 at 24-25. In light of the parties’ assent and the court’s approval, further motions need not be filed on this issue. The court grants the motions to proceed under a pseudonym filed by Jane Doe 2 and Jane Doe 3 (doc. nos. 29 & 30) and approves the continued use of a pseudonym for Jane Doe. The court also grants plaintiffs’ related motion to seal (doc. no. 32).

24 (A)the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). Because the court is considering

certification for the purposes of settlement only, it need not

consider the final factor, the “manageability” of the class

action. Amchem,

.

i. Predominance

The predominance inquiry requires the court to examine “the

relation between common and individual questions in a case.”

Tyson Foods, Inc. v. Bouaphakeo,

(2016).

An individual question is one where “members of a proposed class

will need to present evidence that varies from member to

member.”

(internal quotation marks omitted). By contrast,

a common question is one where “the same evidence will suffice

for each member to make a prima facie showing or the issue is

susceptible to generalized, class-wide proof.”

(internal

quotation marks and brackets omitted). “When one or more of the

central issues in the action are common to the class and can be

said to predominate” the action is proper under Rule 23(b)(3)—

25 even though other important matters, such as damages, will have

to be tried separately.

(internal quotation marks omitted).

On the other hand, if individualized questions appear to

overwhelm common ones, certification is not appropriate. In re

Nexium Antritrust Litig.,

(1st Cir. 2015).

Although Rule 23(b)(3) requires common issues to predominate, it

“does not require a plaintiff seeking class certification to

prove that each element of her claim is susceptible of classwide

proof.”

(quoting Amgen Inc. v. Conn. Ret. Plans and Tr.

Funds,

(2013)).

To assess whether common questions predominate, the court

begins by examining the elements of plaintiffs’ claims. See

Erica P. John Fund, Inc. v. Halliburton Co.,

(2011). Plaintiffs’ lead claim is that Dartmouth violated Title

IX by creating a hostile education environment for class

members. To prove a hostile education environment claim under

Title IX, a plaintiff must show that: (1) plaintiff was a

student; (2) who was subjected to sexual harassment; (3) based

on her sex; (4) that the sexual harassment was “sufficiently

severe and pervasive to create an abusive educational

environment;” and (5) a basis for institutional liability

exists. Frazier v. Fairhaven Sch. Comm.,

(1st

Cir. 2002). The fourth prong—whether a hostile education

environment existed—calls for both objective and subjective

26 proof. Keskinidis v. Univ. of Mass. Bos.,

(D. Mass. 2014). A plaintiff must demonstrate that the

harassment was so severe and pervasive that a reasonable person

would find the environment hostile or abusive and that the

plaintiff subjectively perceived the environment to be abusive

such that it altered the conditions of her educational

experience. Brown,

. To satisfy the final prong

of institutional liability, a plaintiff must prove that the

educational institution received federal financial assistance

and that “a school official authorized to take corrective action

had actual knowledge of the harassment, yet exhibited deliberate

indifference to it.” Frazier,

.

All but one of these elements is susceptible to classwide

proof. All class members are or were, by definition, students

at Dartmouth. With respect to proof that all class members were

subjected to sexual harassment based on their sex, plaintiffs

have alleged that the professors normalized a culture of

objectifying women that permeated the entire Department. See

doc. no. 28 at ¶¶ 35-40. This allegation can be proven on a

classwide basis. See Howard,

, at *9

(identifying as common question whether class members were

subjected to sexual harassment because of their sex). And, as

the court explained in detail supra, whether the sexual

27 harassment was severe and pervasive enough for a reasonable

person to find the environment hostile is a common question.

The elements underlying institutional liability can also be

proven on a classwide basis. It appears undisputed that

Dartmouth is an educational institution that receives federal

financial assistance. Next, with regard to “actual knowledge,”

plaintiffs allege that Dartmouth received multiple reports of

sexual harassment by all three professors prior to the beginning

of the class period in 2012. Whether these reports gave “actual

knowledge” of the harassment to an official “who at a minimum

ha[d] authority to address” the alleged harassment is a common

question. Brodeur v. Claremont Sch. Dist.,

(D.N.H. 2009). That question will be answered in the same

way for the entire class because the relevant reports of

harassment preceded the class period.

Likewise, whether Dartmouth responded with “deliberate

indifference” to knowledge of the existence of such sexual

harassment is a common question. The timing of the reports of

harassment on which plaintiffs rely is critical to the analysis.

As noted above, all the reports of harassment were made prior to

the class period. Consequently, whether Dartmouth reacted to

those reports with deliberate indifference, by, for example,

failing to investigate or conducting an inadequate investigation

into the reports, will depend upon Dartmouth’s conduct prior to

28 the class period—making Dartmouth’s conduct the same with

respect to all class members. See, e.g., Brown,

, at *13 (finding that whether employer responded to

complaints of sexual harassment ineffectively constituted common

question); Armstrong v. Whirlpool Corp., No. 3:03-1250,

, at *5 (M.D. Tenn. Mar. 1, 2007) (common question raised

about whether defendant had a general practice of not responding

to plaintiffs’ complaints of a hostile work environment, which

was created or at least tolerated by supervisors).

The element of plaintiffs’ hostile education environment

claim that cannot be proven on a classwide basis is whether each

individual class member subjectively perceived the educational

environment as hostile enough to interfere with her enjoyment of

educational benefits and opportunities. Plaintiffs’ damages too

will likely vary and require individualized proof. But “the

need for some individualized determinations at the liability and

damages stage does not defeat class certification.” In re

Nexium Antitrust Litig.,

. The court is persuaded

that the elements of liability requiring individualized

determinations do not predominate over the common questions

discussed above—especially those pertaining to Dartmouth’s

institutional liability. See Brown,

, at *13

(concluding that subjective element of hostile work environment

claim would not predominate over other common questions); Brand,

29

(fact that damages differed among

plaintiffs did not undermine that the “fundamental question” of

whether there was an objectively hostile work environment

predominated).

Notably, if plaintiffs were seeking certification for

litigation purposes, the need to litigate the individualized

issue of each class members’ subjective perception of the

environment would likely present manageability issues at trial.

Here, however, the proposed settlement will obviate the need to

litigate this individualized issue and therefore manageability

concerns do not undermine a finding of predominance. See In re

Hyundai and Kia Fuel Econ. Litig.,

. The court

is satisfied that common questions predominate over individual

issues with respect to the Title IX hostile education

environment claim.

Plaintiffs assert three other claims on behalf of the

class: violation of Title IX based on gender discrimination in

the terms and conditions of education (count two); breach of

fiduciary duty (count three); and negligent retention and

supervision (count four). The court has reviewed the elements

of each of these claims and concludes that common questions—some

of which overlap with issues of law or fact relevant to the

hostile education environment claim—predominate over any

30 individualized aspects of the claims. The court will provide a

brief analysis of each claim.

In count two, plaintiffs allege a second violation of Title

IX. They assert that, by allowing the professors’ misconduct,

Dartmouth subjected class members to different terms and

conditions of education based on their gender in violation of

Title IX. To prove a prima facie case of differential treatment

under Title IX, a plaintiff must show that she “was excluded

from participation, denied the benefits of, or subjected to

discrimination in an educational program, that the program

receives federal assistance, and that the exclusion was on the

basis of [her] sex.” Vaughan v. Vermont Law Sch., Inc., No.

2:10-CV-276,

, at *4 (D. Vt. Aug. 4, 2011),

aff’d,

(2d Cir. 2012). As discussed above,

whether discrimination occurred on the basis of sex can be

determined on a classwide basis and it is undisputed that

Dartmouth receives federal financial assistance. On the other

hand, whether each class member was excluded from participation,

denied benefits, or otherwise discriminated against in an

educational program would likely involve an individualized

finding. But like the subjective element of the hostile

educational environment claim discussed above, the need for some

individualized findings does not defeat predominance. See In re

Nexium Antitrust Litig.,

.

31 Count three alleges that under New Hampshire law Dartmouth

owed its students a fiduciary duty and breached that duty by

tolerating or enabling the professors to sexually harass female

students, causing them injury. The New Hampshire Supreme Court

has held that a college’s relationship with its students gives

rise to a fiduciary duty “to create an environment in which [the

students can] pursue [their] education free from sexual

harassment by faculty members.” Schneider v. Plymouth State

Coll.,

(1999). This claim thus involves the

common questions of whether Dartmouth owed a fiduciary duty to

all class members and whether it breached that duty by failing

to enforce grievance procedures, properly investigate reports of

abuse, or otherwise protect the students.

Finally, count four alleges negligent supervision and

retention. Plaintiffs allege that Dartmouth owed class members

a duty of care to protect them from sexual harassment

perpetrated by school employees and that it breached that duty

by retaining and supervising the professors when it knew, or

should have known, that they were unfit to supervise young

female students. Under New Hampshire law, an employer may be

held directly liable for damages resulting from its negligent

hire, retention, or supervision of an employee. See Marquay v.

Eno,

(1995); Trahan-Laroche v. Lockheed

Sanders, Inc.,

(1995). To prove such a claim

32 in the context of a school employee’s alleged sexual harassment

of a student, a plaintiff must show that the school owed the

plaintiff a duty not to hire or retain employees that it knew or

should have known have a propensity to sexually harass students.

See Marquay,

. If a plaintiff can establish that

the school knew or reasonably should have known of that

propensity, the school will be liable for “the foreseeable

sexual abuse of students by that employee.”

This claim

also raises issues predominantly susceptible to classwide proof:

whether Dartmouth owed plaintiffs a duty, whether it knew or

should have known (prior to the class period) that the

professors had a propensity for sexually harassing female

students, and whether the harassment that occurred during the

class period was foreseeable based on what Dartmouth knew prior

to the class period. Although damages will vary, that does not

defeat a finding of predominance. See In re Nexium Antitrust

Litig.,

. In sum, the vast majority of the

elements of plaintiffs’ claims can be proven by evidence common

to all claims, supporting a finding of predominance.

In conducting the predominance inquiry, courts may also

consider whether the class is overbroad in that it includes a

substantial number of potentially uninjured class members. See

In re Nexium Antitrust Litig.,

; Torres v. Mercer

Canyons Inc.,

(9th Cir. 2016). Here, the

33 class is defined in a way that minimizes the potential for

inclusion of uninjured class members. All subsets of the class,

save one, define class members as graduate or undergraduate

students who worked directly with one of the professors—meaning

that, by definition, these class members were exposed to the

sexualized climate of the Department. The only subset of the

class (referred to above in paragraph A(iv) of the class

definition) that includes students who did not work directly

with the professors requires those putative class members to

attest to experiencing harm as a result of the professors’

misconduct before they can recover under the settlement

agreement. This requirement ensures that all class members were

exposed to and harmed by the common injury of the professors’

sexual harassment tacitly permitted by Dartmouth.

Despite this well-crafted class definition, it is plausible

that there exist some putative class members who were exposed to

the professors’ misconduct and yet were ultimately not harmed by

it. The law is clear, however, that the existence of a de

minimis number of potentially uninjured class members will not

defeat a finding of predominance. See In re Nexium Antitrust

Litig.,

(collecting cases in support); Torres,

. There is no indication here that there exist

more than a de minimis number of potentially uninjured class

members. Thus, the court finds that the predominance

34 requirement of Rule 23(b)(3) is sufficiently met for preliminary

certification of the class.

ii. Superiority

Under Rule 23(b)(3), the court must also consider whether a

class action is a “superior” method of resolving the suit,

taking into account the several factors outlined above. Fed. R.

Civ. P. 23(b)(3). The superiority requirement “ensures that

litigation by class action will achieve economies of time,

effort, and expense, and promote uniformity of decision as to

persons similarly situated, without sacrificing procedural

fairness or bringing about other undesirable results.” In re

Solodyn (Minocycline Hydrochloride) Antitrust Litig., No. CV 14-

MD-02503,

, at *21 (D. Mass. Oct. 16, 2017)

(internal quotation marks and ellipsis omitted). Typically, in

considering superiority, the court compares the prospect of a

class action against the alternative of class members pursuing

individual suits against the defendant. See George Lussier

Enter., Inc. v. Subaru of New England, Inc., No. CIV. 99-109-B,

, at *6 (D.N.H. Aug. 3, 2001).

Based on the issues common to all class members as

discussed above, a class action would achieve an efficient

resolution of the class claims, avoiding unnecessary and

duplicative litigation for all parties and the judicial system.

35 See George Lussier Enter.,

, at *6; In re Solodyn,

, at *21. Further, plaintiffs have represented

that they are unaware of any individual actions by class members

that are currently pending, so a class action would not

undermine any ongoing individual suits.

Finally, a classwide resolution is particularly attractive

here given the unlikelihood that individual class members would

pursue individual suits. Indeed, some courts have recognized

that class adjudication of sexual abuse claims is preferable to

individual litigation because it encourages more victims to come

forward and avoids re-traumatization. See Jane Doe 30’s Mother

v. Bradley,

(Del. Super. Ct. 2012) (approving

class action settlement of claims against employer of doctor who

sexually abused minor patients in part because the victims

“would have been emotionally traumatized by separate litigation

and trials”); Doe v. Roman Catholic Diocese of Covington, No.

03-CI-00181,

, at *5 (Ky. Cir. Ct. Jan. 31, 2006)

(approving class action settlement involving claims against

Catholic Diocese that minors were sexually abused by various

priests and employees and observing that the class action

“encouraged a large number of people to come forward who would

otherwise never have done so”); cf. Ramirez v. DeCoster,

(D. Me. 2001) (preliminarily certifying for

settlement purposes class of migrant workers who alleged

36 discriminatory employment practices when it was unlikely that

class members would achieve any recovery in the absence of a

class action). The court finds that the superiority requirement

of Rule 23(b)(3) is met for the purposes of preliminary

certification.

In sum, the court finds that it will likely be able to

certify the proposed class for the purposes of settlement only.

See Fed. R. Civ. P. 23(e)(1)(B)(ii).

II. Preliminary Approval of Proposed Settlement

At the final approval stage, the court must be satisfied

that the proposed class action settlement is “fair, adequate,

and reasonable.” Fed. R. Civ. P. 23(e)(2); City P’ship Co. v.

Atl. Acquisition Ltd. P’ship,

(1st Cir.

1996). But at this preliminary stage, the court need only be

satisfied that it will “likely” be able to make those findings.

Fed. R. Civ. P. 23(e)(1)(B). This threshold may be met by

showing that the proposed settlement falls “within the range of

possible final approval” and that it is not “illegal or

collusive.” Scott v. First Am. Title Ins. Co., No. CIV. 06-CV-

286-JD,

, at *3 (D.N.H. Nov. 5, 2008); see also

Michaud,

, at *9. Whether the parties have

engaged in “sufficient discovery” and whether they have

“bargained at arms-length” are important to this inquiry.

37 Bezdek v. Vibram USA Inc.,

(D. Mass.

2015) (internal quotation marks omitted), aff’d,

(1st Cir. 2015).

The court has reviewed the proposed settlement agreement.

The settlement offers both monetary and programmatic relief to

the proposed class. Dartmouth will pay the class settlement

amount of $14,000,000, from which both awards to class members

and attorney’s fees and costs will be paid. In exchange, all

class members who do not opt out of the settlement will release

Dartmouth from any and all claims against it arising out of the

same factual circumstances that were or could have been asserted

in this lawsuit. Class members are not, however, barred from

pursuing litigation against the professors individually.

All class members who do not opt out, except those in class

(A)(iv) as described above, will receive a base payment of

$1,000. Class members who fall in the category described by

(A)(iv) of the class definition must submit a claim form

attesting that they suffered dignitary, emotional, educational

and/or professional harm during the class period as a result of

the misconduct of one or more of the professors before they can

receive the base payment. All class members are also eligible

to receive a supplemental payment in addition to the base

payment. To receive a supplemental payment, class members must

timely submit a claim form describing the impact the professors’

38 misconduct had on their lives. These claim forms will be kept

confidential and reviewed by an independent claims expert who

will determine each class member’s pro rata share of the

remaining settlement funds. This claims process ensures that

all class members receive some recompense and establishes a

reasonable and confidential mechanism for apportioning

additional compensation according to relative harm suffered.

Dartmouth has also agreed to provide the following

programmatic relief: (1) pay an additional $1,000,000 over the

next 10 years to the Provost’s Diversity Recruitment Fund to

assist in hiring diverse faculty with expertise in gender and

racial discrimination and violence; (2) add two new positions to

Dartmouth’s External Advisory Committee to foster independent

oversight of the climate and culture at the college; and (3)

reevaluate Dartmouth’s partnership with WISE (an organization

aimed at combating gender-based violence) and either add an

additional WISE staff member on campus or provide $500,000 to

financially support WISE over a five-year period.

Before reaching these proposed terms, both parties engaged

in significant discovery. Dartmouth retained an independent

investigator who interviewed dozens of witnesses and collected

documentary and electronic evidence over an eleven-month period.

Plaintiffs’ counsel received copies of that investigator’s

reports and conducted their own, independent investigation.

39 Following this discovery, the parties engaged in three full days

of mediation with the assistance of the Honorable Robert

Morrill. Additional negotiations followed the mediation before

the parties reached the terms of the proposed settlement. Given

the terms of the proposed settlement, the parties’ discovery

efforts, their arms-length negotiations, and the participation

of experienced counsel, the court finds that it will likely be

able to find the settlement proposal fair, reasonable, and

adequate. See City P’ship,

(“When sufficient

discovery has been provided and the parties have bargained at

arms-length, there is a presumption in favor of the

settlement.”).

In addition to preliminarily approving the proposed class

action settlement, the court appoints as Class Counsel David W.

Sanford, Deborah K. Marcuse, Steven J. Kelley, Nicole E.

Wiitala, and Austin L. Webbert of Sanford Heisler Sharp, LLP to

represent the class for the purposes of settlement. It also

appoints the following individuals as class representatives:

Kristina Rapuano, Vassiki Chauhan, Sasha Brietzke, Annmarie

Brown, Andrea Courtney, Marissa Evans, Jane Doe, and Jane

.

And the court appoints Maria C. Walsh to serve as the

Independent Claims Expert as defined by the proposed settlement

agreement.

40 III. Notice

Because the court has concluded that it will likely be able

to certify the proposed class for the purposes of settlement and

approve the proposed settlement, the court orders Class Counsel

to direct notice to all class members. See Fed. R. Civ. P.

23(e)(1)(B). Under Rule 23(c), “the court must direct to class

members the best notice that is practicable under the

circumstances, including individual notice to all members who

can be identified through reasonable effort.” Fed. R. Civ. P.

23(c)(2)(B). The court has reviewed the two proposed notice

forms—one for individuals potentially falling into category

(A)(iv), and one for all other putative class members. Doc. no.

47-4 & 47-5. The form and substance of these notices complies

with Rule 23(c)(2)(B). The court also approves the form and

substance of the proposed Claim Form. The court appoints Rust

Consulting, as suggested by plaintiffs, as the Settlement

Administrator, which will provide notice to the class and

administer the settlement.

The court directs Class Counsel to send notice by first-

class U.S. mail in substantially the same form as presented in

document numbers 47-4 & 47-5 to the class on or before February

12, 2020. The Settlement Administrator may distribute a

duplicate notice by email to the extent possible. Notice shall

41 also be posted on the Settlement Administrator’s website.

Dartmouth shall cooperate with Class Counsel and the Settlement

Administrator in identifying class members and providing

reasonably available contact information. At or before the

fairness hearing, Class Counsel shall file proof of

dissemination of notice to the class.

CONCLUSION

For the foregoing reasons, the court grants plaintiffs’

motion for preliminary approval of the proposed class action

settlement (doc. no. 47) and finds it likely that the court will

be able to certify the proposed class for the purposes of

settlement. The court also grants the motions to proceed under

a pseudonym filed by Jane Doe 2 and Jane

(doc. nos. 29 &

30) and the related motion to seal (doc. no. 32). As explained

in detail above, the court has also appointed Class Counsel and

Class Representatives. The court directs Class Counsel to

distribute notice to the class as outlined above. The court

will hold a fairness hearing on June 25, 2020, at 10:00 a.m. to

assist the court in determining whether to grant final approval

of the proposed class action settlement. Plaintiffs shall file

any pleadings in support of final approval, including an

application for attorney’s fees and costs, no later than May 26,

2020, (30 days prior to fairness hearing) and any supplemental

42 pleadings no later than June 18, 2020 (7 days prior to the

fairness hearing).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

January 29, 2020

cc: Counsel of Record.

43