Defamation by Omission: Court Lets Dartmouth Roster Claim Proceed

Defamation by Omission: Court Lets Dartmouth Roster Claim Proceed

A federal judge in New Hampshire ruled on September 28, 2026 that a former Dartmouth cross-country coach may pursue a defamation claim built on what a public web page left out. The court decided only that the allegations are plausible, not that anyone was defamed.

Information last verified on October 9, 2026. This is a developing story; we update it as the record changes.

Status: Partial denial of a Rule 12(b)(6) motion to dismiss, entered September 28, 2026 in Wood v. Trustees of Dartmouth College, No. 1:25-cv-00304-SE (D.N.H.), Doc. 25, carrying the court's internal citation Opinion No. 2026 DNH 135. No trial has occurred and no liability has been established. The case remains pending.

Jurisdiction scope: This article covers New Hampshire defamation and whistleblower law as applied by the U.S. District Court for the District of New Hampshire in one pending civil case. It does not address the defamation law of any other state, criminal libel, or federal employment discrimination claims. For the statewide rules, see New Hampshire Defamation Laws.

What Happened

Judge Samantha D. Elliott of the U.S. District Court for the District of New Hampshire ruled on Dartmouth's motion to dismiss on September 28, 2026. The order appears at Doc. 25 in Wood v. Trustees of Dartmouth College, No. 1:25-cv-00304-SE, and carries the court's internal citation Opinion No. 2026 DNH 135.

The plaintiff, Justin Wood, alleges he was hired as head coach of Dartmouth's men's cross-country team on November 16, 2020, and that he and Dartmouth signed a separation agreement on August 19, 2022. According to the amended complaint as the order describes it, that agreement contained a non-disparagement clause and a neutral reference clause stating that the employer "will confirm, upon request to the Employer, that Employee voluntarily resigned, as well as Employee's dates of employment, salary history, and job title."

Wood originally sued both Dartmouth and Porscha Dobson Harnden, who the complaint alleges was his supervisor as Director of Dartmouth Track and Field and Cross Country. He then voluntarily dismissed the claims against Harnden individually and filed an amended complaint, Doc. 21, naming only Trustees of Dartmouth College on an agency theory. Because the amended complaint named only Dartmouth, the order framed the blog post question as whether Harnden's husband acted as Dartmouth's agent rather than as Harnden's, at Doc. 25 page 11.

The amended complaint identifies four alleged acts. First, a September 2022 reference check for a coaching position at New York University, during which Wood alleges that Harnden or someone at her direction told the NYU representative managing the check that Wood had been "blacklisted." Second, an October 2022 post on the Letsrun.com message board. Third, February 2024 statements by Dave Altman, co-chair of a group the complaint describes as Dartmouth's communication arm with alumni and donors. Fourth, Dartmouth's removal, at some point in 2024, of Wood's name and image from the online rosters for the 2021 men's cross-country team and the 2020-2021 and 2021-2022 men's track and field teams.

Dartmouth moved to dismiss the defamation count, the tortious interference count, and the whistleblower count. It did not move against the breach of contract count.

The court split the defamation count four ways. It denied the motion as to the NYU reference check and as to the roster removal. It granted the motion as to the Letsrun.com post and as to Altman's statements. On the roster theory, the order states at page 15:

Wood's absence from the roster plausibly implies that he is lying about his employment or that he left on bad terms, either of which could lower him in the esteem of the cross-country community, or in the community of his prospective employers.

The court added that, taken in the context of the publication as a whole, in which even volunteers and individuals Dartmouth had terminated allegedly remained listed on the online roster, Wood's removal creates a defamatory implication.

Dartmouth had argued it could not be liable because it removed information rather than publishing it. It also argued that Wood's name, title, and picture still appear on its website for at least two of the rosters, and it submitted screenshots of two rosters, each showing a team photograph with a list of the players and coaches depicted, Wood included, underneath. The court considered those screenshots because the rosters are integral to the complaint, citing Clorox Co. v. Proctor and Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000), and still declined to dismiss. Dartmouth furnished screenshots for only two of the three teams named in the amended complaint, and the order adds that a screenshot of the third would not have changed the result. The screenshots, the order notes, showed that the site carried a separate list of all runners and coaches for each team with contact information and links to full biographies, and Wood is not in that list. Whether Wood's 'presence in the photographs and accompanying list of those pictured sufficiently undermines this portion of his defamation claim is a question better suited for judgment at a later stage,' the order states at page 14.

The tortious interference count survived in full. The whistleblower count survived in part: the court denied the motion without prejudice as to the NYU reference check and the website alterations, and dismissed Count IV insofar as it rests on the Letsrun.com post and Altman's statements. The conclusion of the order is narrow: the motion "is granted as to the portions of Count I and Count IV based on the 'letsrun.com' blog post or the statements by Dave Altman and is otherwise denied."

What the Law Actually Says

Except where it names another decision directly and quotes that decision, everything in this section describes New Hampshire law as the September 28, 2026 order states it. The CourtListener docket lists the cause of action as 28 U.S.C. 1332 diversity of citizenship and the jurisdiction type as diversity, so the federal court is applying New Hampshire substantive law.

The elements the court applied

To plead defamation in New Hampshire, a plaintiff must allege facts showing that "the defendant failed to exercise reasonable care in publishing a false and defamatory statement of fact about the plaintiff to a third party," absent a valid privilege. The order draws that formulation from Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670, 678 (2017), and Sanguedolce v. Wolfe, 164 N.H. 644, 645-46 (2013).

Statements are defamatory, the order continues, "if they hold the plaintiff up to contempt, hatred, scorn or ridicule, or tend to impair his standing in the community," quoting Thomas v. Telegraph Publishing Co., 155 N.H. 314, 338 (2007). The language must tend to lower the plaintiff in the esteem of any substantial and respectable group, even a small minority, under Sanguedolce, 164 N.H. at 646. These are the same building blocks covered in our guide to the elements a defamation plaintiff must prove.

New Hampshire also imposes a pleading specificity requirement. Under Cluff-Landry, 169 N.H. at 680, a plaintiff must identify the defamatory statements, the speaker, when they were made, and to whom. The court held that requirement satisfied for the NYU reference check even though the recipient was unnamed, because the complaint identified a specific role, the NYU representative making reference-check calls, which gave Dartmouth enough notice to defend itself.

Defamation by implication, and by omission

The doctrinal core of the ruling is short. Rejecting Dartmouth's argument that removing information cannot be publication, the order states that both the New Hampshire Supreme Court and the District of New Hampshire have recognized a claim for defamation by implication. It cites Lewis v. Abramson, 673 F. Supp. 3d 72, 86 (D.N.H. 2023), which the order describes as referencing Duchesnaye v. Munro Enterprises, 125 N.H. 244, 250 (1984), along with Hynes v. New Hampshire Democratic Party, 175 N.H. 781, 791-92 (2023).

Such a claim, the order says, occurs when a defendant "juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts."

That one sentence is all the Wood order says about the content of the doctrine. The two New Hampshire decisions behind it say the following, read directly.

Duchesnaye, decided July 26, 1984, was a libel action over a newspaper story and an editorial. At 125 N.H. 249 the court stated that it "is axiomatic that [w]ords alleged to be defamatory must be read in the context of the publication taken as a whole," quoting Morrissette v. Cowette, 122 N.H. 731, 733 (1982), and that a statement in the form of an opinion may be read to imply defamatory facts and is actionable if it is actually understood that way. At the page the Wood order pin cites, the court sustained liability on a different footing: "a series of factual statements in the editorial could have been read as indicating that the plaintiff had made obscene calls," so the trial court "rested liability properly on the finding that the editorial had been understood to identify the plaintiff as an obscene caller." Duchesnaye, 125 N.H. at 250. The judgment was affirmed.

Hynes, issued June 1, 2023, concerned a campaign flyer that described Dan Hynes as convicted of theft by extortion without stating that the conviction had been annulled. The court held that the failure to include the annulment "renders the statement false as a matter of law" under RSA 651:5, and reversed the dismissal of the defamation claim. In reaching that result it wrote that "where a statute or regulation requires disclosure of additional facts, the partial disclosure may carry defamatory meaning," and quoted the rule that "[w]here a publication implies something false and defamatory by omitting . . . key facts, the publication may be actionable even though all of the individual statements are literally true when considered in isolation." Hynes, slip op. at 8 (quoting Martin v. Hearst Corp., 777 F.3d 546, 552 (2d Cir. 2015)). The judgment was affirmed in part, reversed in part, vacated in part, and remanded.

The Wood order also repeats a limiting instruction from First Circuit law: "courts must take special care to impose liability only for those statements that, viewed in context, reasonably would be understood to declare or imply provable assertions of fact," and not statements that simply offer one of several possible interpretations of disclosed facts, quoting Lewis, 673 F. Supp. 3d at 90, which in turn quotes Piccone v. Bartels, 785 F.3d 766, 771 (1st Cir. 2015).

Why removing a name is not automatically safe, and not automatically actionable

Read carefully, the order does not say that scrubbing a departed person from a public page is defamatory. It says that on these alleged facts the omission plausibly carried a false factual implication to a particular audience. The questions a court asks are the ordinary ones: what does the publication, as a whole, communicate to the people who read it, is that message a provable assertion of fact rather than commentary, is it false, and does it tend to lower the subject in the esteem of a substantial and respectable group.

Two features of the allegations did the work here. The order states that "Dartmouth's public roster presents information about the members of its team each year," at page 15, so on these allegations a reader could take an absence as saying something about membership. And the alleged inconsistency, with volunteers and terminated employees still listed, is the context in which the order found the absence to carry a defamatory implication.

Equally, the opposite conclusion does not follow either. An omission is not immunized simply because nothing new was written. Dartmouth's publication-versus-removal argument is the argument the court rejected.

The reference-check angle

The order's reference-check analysis turns on the separation agreement. Dartmouth argued that Wood invited the remark by applying for a job requiring a reference. The court described invited slander as existing "when a plaintiff knew, or should have known, that an inquiry would solicit the alleged defamatory statement," and distinguished Cluff-Landry, where the plaintiff had hired a reference company to find out what her former employer was saying. Wood, the court reasoned, simply applied for a job and, given the neutral reference clause, had no reason to expect a statement that he had been blacklisted.

Reference and verification practices are also governed by state background-check statutes, a separate body of law that this order does not address. Our overview of state rules governing employment background checks covers that ground, and the defenses a defamation defendant may raise, including truth and privilege, are collected in our guide to the defenses available to a defamation defendant.

Agency, scope of employment, and pleading specificity

The amended complaint names only Dartmouth, so for the blog post the court asked whether the complaint alleged facts making Harnden's husband Dartmouth's agent, or alleging that Harnden spoke to her husband within the scope of her employment. New Hampshire requires authorization from the principal, the agent's consent, and an understanding that the principal exerts some control, under Vandemark v. McDonald's Corp., 153 N.H. 753, 760-61 (2006). For vicarious liability, the act must be of the kind the employee is employed to perform, occur substantially within authorized time and space limits, and be actuated at least in part by a purpose to serve the employer, under Porter v. City of Manchester, 155 N.H. 149, 152 (2007).

Wood alleged no facts at all about Dartmouth's relationship with Harnden's husband, and none showing that she shared the information with him within the scope of her employment, so the blog post theory failed.

The Altman theory failed on a different ground first, and that ground has nothing to do with who was sued. The order holds at page 13 that Wood did not allege to whom Altman's statements were made beyond saying the "false statements were made verbally to third parties," which is insufficient under Cluff-Landry, 169 N.H. at 680. Only then did the order turn to agency, and it assumed without deciding that Altman was Dartmouth's agent, finding no allegations that he spoke within the scope of that agency, with a purpose to serve Dartmouth, or that anyone relied on his apparent authority, citing Alexander v. Fujitsu Business Communication Systems, 818 F. Supp. 462, 468 (D.N.H. 1993).

Tortious interference and the whistleblower statute

The court also let the tortious interference count proceed. A New Hampshire plaintiff must show an economic relationship, the defendant's knowledge of it, intentional and improper interference, and damage, under Wilcox Industries Corp. v. Hansen, 870 F. Supp. 2d 296, 306 (D.N.H. 2012). The first element requires an already existing relationship giving rise to a reasonable expectation of economic advantage. The court found that element plausibly alleged because NYU had offered Wood the same position in 2014, he met NYU's athletic director and head coach on October 3, 2022, and he had reached the reference-check stage. Only improper interference is tortious in New Hampshire, under National Employment Service Corp. v. Olsten Staffing Service, 145 N.H. 158, 162 (2000), and the court held that inducing NYU by defamatory statements not to hire Wood could qualify.

The whistleblower count rests on RSA 275-E:2, I, which provides that no employer shall harass, abuse, intimidate, discharge, threaten, or otherwise discriminate against any employee regarding compensation, terms, conditions, location, or privileges of employment because the employee, in good faith, reports what the employee has reasonable cause to believe is a violation of law or rule. RSA 275-E:1 defines employer broadly to include any person acting in the interest of an employer directly or indirectly. Wood alleges he reported Harnden's practices while employed, including allegedly falsified COVID-19 testing documentation and potential admissions fraud. Those are allegations in the amended complaint, not findings.

Dartmouth argued the statute cannot reach conduct directed at a former employee, relying on Appeal of Northeast Rehabilitation Hospital, 149 N.H. 83, 85 (2003). The court read that decision narrowly: its central holding, the order says, was that the Act "protects only persons who are employed by the employer at the time they report a violation of law or rule," and the New Hampshire Supreme Court "has yet to address" post-employment retaliation where the report came during employment.

The order then did more than hold the pleading sufficient. When a state's highest court has not spoken, the order states, a federal court sitting in diversity "must predict how that court would likely decide the issue by looking at relevant statutory language, analogous decisions, and other sources of authority," citing Barton v. Clancy, 632 F.3d 9, 17 (1st Cir. 2011). Noting that the New Hampshire Supreme Court regularly uses Title VII standards when construing the WPA, citing Appeal of Seacoast Fire Equipment Co., 146 N.H. 605, 608 (2001), and In re Hardy, 154 N.H. 805, 812 (2007), the court wrote at page 21 that it "could predict" the New Hampshire Supreme Court would run the same analysis, and that "if the court were to do so, it would likely conclude that the WPA protects former employees from such conduct," citing Robinson v. Shell Oil Co., 519 U.S. 337, 339 (1997), where post-employment retaliation claims were held actionable under Title VII.

The order states the limits of that prediction itself. It is a federal court's forecast of New Hampshire law, hedged twice in its own wording, and it is not a decision of the New Hampshire Supreme Court, which the order says "has yet to address" the question. The order adds that it "is not clear at this stage whether this issue will be determinative" of Wood's RSA 275-E claim. Dartmouth asked for certification only conditionally, "if the court has any concern that RSA 275-E proscribes post-employment conduct," quoting Doc. 24 at 7, and the court said it "will consider whether to certify the question and, if so, at what procedural posture such a certification would be most advantageous" under New Hampshire Supreme Court Rule 34. The motion to dismiss Count IV was denied without prejudice as to the NYU reference check and the website alterations.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The legal doctrine here is not new. The order traces defamation by implication to Duchesnaye v. Munro Enterprises, 125 N.H. 244 (1984), by way of Lewis v. Abramson, and to Hynes v. New Hampshire Democratic Party, 175 N.H. 781 (2023), and the First Circuit's caution about provable assertions of fact in Piccone v. Bartels dates to 2015. What is unusual is the artifact. The allegedly defamatory publication in this case is a web page's current state, and the allegedly actionable conduct is an edit.

That combination is worth noticing because rosters, staff directories, faculty pages, and leadership listings get edited after departures. The order does not hold that such an edit is unlawful. It holds that on these allegations, where the page presents information about a team's members for each year and the removal was selective, the claim that the resulting gap communicates something false clears the plausibility bar under Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The alleged selectivity is the pivot. The order expressly relies on the allegation that volunteers and people Dartmouth terminated remained listed. On that reasoning it is the page's other contents that give the absence its alleged meaning, which makes the surrounding listings part of the claim rather than background to it.

Our observation, separate from anything the court held: the same logic applies to whether a record is kept consistently over time. A page that documents history uniformly tells readers nothing about any individual, because nothing distinguishes one name's absence from another's.

The whistleblower piece deserves separate attention. Whether RSA 275-E:2 reaches post-employment retaliation is a question of statutory scope that could matter to New Hampshire employers and to employees who report a suspected violation and then leave. The order does not leave that question blank. It predicts, at page 21, that the New Hampshire Supreme Court applying Title VII standards "would likely conclude that the WPA protects former employees from such conduct." In our view that passage is the most consequential in the order and also the most provisional: it binds no state court, it is hedged in the order's own wording, and the order says it is "not clear at this stage" whether the issue will even be determinative. Dartmouth asked for certification only conditionally, and the court reserved both whether and when to certify. We take no position on how the question should resolve.

How This Affects You

This section is general information about New Hampshire law and is not advice about any particular situation.

For anyone whose name has been removed from a public listing, the ruling confirms that New Hampshire recognizes a defamation theory that can rest on an omission. The elements the order applies are the ordinary ones: a false and defamatory statement of fact, published to a third party, without reasonable care, under Cluff-Landry, 169 N.H. at 678. The order also applies the pleading specificity Cluff-Landry, 169 N.H. at 680, requires as to the statement, the speaker, the timing, and the recipient, which is the requirement that defeated the Altman portion of the claim.

For anyone responding to a reference check, the order illustrates how narrow the safe path can be when a separation agreement specifies what may be said. Where an agreement calls for confirming dates, title, salary history, and the fact of a resignation, a statement that goes beyond those items can be measured against the agreement, and the order treats that clause as part of the context that gave the word "blacklisted" its alleged factual meaning.

For anyone maintaining a public roster or directory, the practical question the order raises is not whether removal is permitted. It is whether the page, read as a whole, says something about a specific person that is not true. Anyone weighing an actual claim or an actual response to one should read our walkthrough of how a defamation lawsuit proceeds and then consult a lawyer licensed in the relevant state.

What Happens Next

The case continues in the District of New Hampshire. The surviving claims are the breach of contract count, which was never challenged, the defamation count limited to the NYU reference check and the roster removal, the tortious interference count, and the RSA 275-E:2 count limited to those same two acts.

Three developments would change the picture. A certification order sending the post-employment retaliation question to the New Hampshire Supreme Court would produce binding state authority on the scope of RSA 275-E:2. A summary judgment ruling would test the roster theory against actual evidence rather than allegations, which is precisely what the court said was better suited for a later stage. And a dispositive ruling or trial verdict would, for the first time in this case, decide whether anything alleged is true.

Until one of those happens, the only decided question is the one the court answered on September 28, 2026: that two of Wood's four theories are adequately pleaded.

This is general legal information, not legal advice. It covers New Hampshire defamation and whistleblower law as applied in one pending federal case, and reflects sources verified on October 9, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• New Hampshire Defamation Laws: Libel and Slander
• What a defamation plaintiff has to prove
• Our full defamation law library
• Background Check Laws by State

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Last updated: 2026-10-09. This is a developing story; details verified as of 2026-10-09.

Frequently Asked Questions

Did the court find that Dartmouth defamed Justin Wood?

No. The September 28, 2026 order decided a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). At that stage a court assumes the complaint's non-conclusory factual allegations are true and asks only whether they state a plausible claim, under Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court made no finding that any statement was false, that Dartmouth acted without reasonable care, or that Wood suffered any injury. Every factual assertion about what Dartmouth or its employees did remains an allegation that Wood still has to prove.

What is defamation by omission?

It is a form of defamation by implication. The order describes the claim as arising where a defendant 'juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts' (Doc. 25 at 15, quoting Lewis v. Abramson, 673 F. Supp. 3d 72, 86 (D.N.H. 2023), which the order cites as referencing Duchesnaye v. Munro Enters., 125 N.H. 244, 250 (1984), and citing Hynes v. New Hampshire Democratic Party, 175 N.H. 781, 791-92 (2023)). In Hynes the New Hampshire Supreme Court quoted a federal formulation of the same idea, that '[w]here a publication implies something false and defamatory by omitting . . . key facts, the publication may be actionable even though all of the individual statements are literally true when considered in isolation' (Hynes, slip op. at 8, quoting Martin v. Hearst Corp., 777 F.3d 546, 552 (2d Cir. 2015)). The Wood order itself says no more about the doctrine than the sentence quoted above.

Does this ruling mean that taking a former employee off a website is defamation?

No. The court decided a pleading question in one case governed by New Hampshire law. It did not announce a rule that removal is defamatory. The order's reasoning turned on the specific alleged context: a public roster that, in the order's words, 'presents information about the members of its team each year,' from which Wood was absent while volunteers and people Dartmouth had terminated allegedly remained listed. Whether any particular omission conveys a false and defamatory factual implication to the relevant audience is fact-specific. The order directs that statements be considered 'in the context of the publication as a whole,' quoting Lewis v. Abramson, 673 F. Supp. 3d 72, 86 (D.N.H. 2023).

Which law governs the defamation claim?

New Hampshire substantive law, applied by a federal court. The CourtListener docket for Wood v. Trustees of Dartmouth College, No. 1:25-cv-00304 (D.N.H.), lists the cause as 28 U.S.C. 1332 diversity of citizenship and the jurisdiction type as diversity, and the order states that a federal court sitting in diversity must predict how a state's highest court would decide an unsettled question (citing Barton v. Clancy, 632 F.3d 9, 17 (1st Cir. 2011)). The court drew the defamation elements from New Hampshire Supreme Court decisions including Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670 (2017).

Why was the word 'blacklisted' treated as a statement of fact rather than opinion?

Because of the context in which it was allegedly said. The order holds that courts must examine a statement in its totality in the context in which it was uttered, citing Amrak Productions v. Morton, 410 F.3d 69, 72-73 (1st Cir. 2005). Crediting the allegations as true, the court concluded that in a reference check from a former employer, and against a separation agreement whose neutral reference clause called for confirming a voluntary resignation, the word would reasonably be understood to imply a provable assertion of fact that Dartmouth had fired Wood and would not rehire him. The court noted that 'blacklisted' standing alone might be opinion or hyperbole.

Why were the Letsrun.com post and the Altman statements dismissed?

For different reasons, and in neither instance because the court decided the words were not defamatory. As to the blog post, the court found no alleged facts connecting Dartmouth to Harnden's husband and no allegation that Harnden shared the information with him within the scope of her employment, applying the three-part scope test in Porter v. City of Manchester, 155 N.H. 149, 152 (2007). Because the amended complaint named only Dartmouth, the order framed that inquiry as whether the husband was Dartmouth's agent (Doc. 25 at 11). As to Altman, the first stated ground was different and independent of who was sued: the amended complaint did not allege to whom the statements were made beyond 'third parties,' which the court held insufficient under Cluff-Landry, 169 N.H. at 680 (Doc. 25 at 13). The order then assumed without deciding that Altman was Dartmouth's agent and found no allegations that he spoke within the scope of that agency or with a purpose to serve Dartmouth.

What is invited defamation, and why did it not defeat the reference-check claim?

The order describes invited slander as existing 'when a plaintiff knew, or should have known, that an inquiry would solicit the alleged defamatory statement' (Doc. 25 at 9). Dartmouth relied on Cluff-Landry, where a reference check was not actionable because the plaintiff had hired a reference company to probe what her former employer was saying. The court distinguished that situation: Wood applied for a job that required a reference check and did not hire NYU to investigate Dartmouth, and the neutral reference clause gave him reason to expect only confirmation of his resignation, dates, salary history, and job title.

Does New Hampshire's whistleblower statute cover retaliation after employment ends?

The New Hampshire Supreme Court has not decided it, and the federal court said that if that court used Title VII standards it would likely conclude the Act does reach post-employment retaliation. RSA 275-E:2, I bars an employer from harassing, abusing, intimidating, discharging, threatening, or otherwise discriminating against 'any employee' because the employee in good faith reported a suspected violation of law or rule. In Appeal of Northeast Rehabilitation Hospital, 149 N.H. 83 (2003), the New Hampshire Supreme Court held the Act 'protects only persons who are employed by the employer at the time they report a violation of law or rule.' The order reasons that this case is different because Wood allegedly reported while employed, and says the New Hampshire Supreme Court 'has yet to address the issue' of post-employment retaliation where the protected conduct occurred during employment. The order then predicted an answer. A federal court sitting in diversity must forecast how the state's highest court would decide the question, citing Barton v. Clancy, 632 F.3d 9, 17 (1st Cir. 2011), and the court wrote that it 'could predict' the New Hampshire Supreme Court would use Title VII standards and that 'if the court were to do so, it would likely conclude that the WPA protects former employees from such conduct' (Doc. 25 at 21, citing Robinson v. Shell Oil Co., 519 U.S. 337, 339 (1997)). That prediction supported denying the motion as to Count IV at this stage. It is not a ruling of the New Hampshire Supreme Court, and the order says it is 'not clear at this stage' whether the issue will be determinative.

What happens next in the case?

The case proceeds on the surviving claims: the breach of contract count, which Dartmouth did not move to dismiss, the defamation count as to the NYU reference check and the roster removal, the tortious interference count, and the RSA 275-E:2 count as to those same two acts. The court denied the whistleblower portion without prejudice and, in response to Dartmouth's conditional request for certification, said it 'will consider whether to certify the question and, if so, at what procedural posture such a certification would be most advantageous' under New Hampshire Supreme Court Rule 34. Discovery, any summary judgment motion, and any certification order are the next milestones.