Largest Ever Settlement Reached in Hazing Case

Tim Burke, Manley Burke, tburke@manleyburke.com

David Bogenberger died on November 1, 2012 of alcohol poisoning following what was reported to have
been an “event at an off-campus fraternity Pi Kappa Alpha, where fraternity members and members of
various sororities hosted ‘Mom and Dad’s Night’”. Pledges were required to answer questions and drink
vodka. Tests following Bogenberger’s death showed a blood alcohol level five times the legal limit for a
driver to be considered under the influence of alcohol.

It took 6 years, but at the end of November 2018, it was announced that the lawsuit that followed
Bogenberger’s death had been settled for what is claimed to be the largest amount ever in a hazing case,
fourteen million dollars. The lawsuit may also have had the largest number of individual defendants in a
hazing death case. In addition to naming the Pi Kappa Alpha International Fraternity and its chapter at
Northern Illinois University (NIU), 22 members of the chapter were named, specifically including many of
its officers, and 22 individual sorority women who were alleged to have some role in the activities which
lead to the death.

22 members of the fraternity had been found guilty of misdemeanors, ordered to pay fines of between
$500-$1000, perform 100 hours of community service, and spend 24 months on either supervision or
conditional discharge. [1]

In January of 2018, the Supreme Court of Illinois released a decision that may very well have set up the
case for settlement. The Court affirmed the earlier dismissal of the International Fraternity but it also
affirmed a lower appellate court’s reversal of the trial court’s dismissal of the local chapter and its officers,
pledge board members, and active members and reversed the dismissal of the non-member sorority
women. That decision effectively put all of the individual defendants back in play in the case and
undoubtedly, in the process, those individuals ‘parents’ homeowners policies as well as the insurance
policy covering the chapter.

A November 30 Chicago Tribune Article quoted Attorney Michael Borders who had represented the
former president of the Pi Kappa Alpha Chapter at NIU. While he refused to discuss how much his client
had paid toward the settlement- undoubtedly there is a confidentiality agreement with regards to that in
the settlement- he was quoted as saying:

Given the Supreme Court’s decision, the defendants realized this was going to be a challenging case to defend, and that with 40-plus defendants and 20-plus law firms, it was going to be a long and expensive and uncertain litigation . . .In any case, and this is no exception, the defendants pay more than they think they should and the plaintiffs get less that what they think they’re entitled to. [2]

In addition to the amount of the settlement, the most unusual aspect of this case was the inclusion of nonmember sorority women, and because of that it is worth noting how the Supreme Court had described their conduct:

On the one hand the non-member women were not alleged to have had any part in planning the event, and they could not vote as to which pledges would be admitted into the NIU chapter. Yet, they willingly agreed to participate in the hazing event and actively did so filling the pledges cups with vodka, asking the pledges questions, directing the pledges to drink, calling the pledges derogatory names, and decorating “vomit buckets”. We see little difference between the non-member women’s participation in the hazing event and the members
participation. [3]

That description by the state’s highest court no doubt sent a message to the women, their attorneys, and their insurance carriers.

No doubt the unusually large number of defendants, involving many more pockets and many more insurance policies, contributed to the very high settlement. But whatever the reason, the high settlement will attract much attention and contribute to arguments for higher financial damages in other hazing cases.
Similarly, as discussions continue regarding the development of a model anti-hazing statute, the relatively light criminal penalties will support arguments for enhancing the criminal penalties for hazing, especially when the hazing results in death or serious injury.

[1] May 8 2015 Chicago Tribune Article by Clifford Ward “22 Former NIU Frat Members Guilty of Misdemeanors
in Death of Pledge”
[2] November 30 2018 Chicago Tribune Article by Matthew Walberg “$14 Million Settlement for Family of NIU
Student David Bogenberger, Who Died in Fraternity Hazing Incident
[3] Bogenberger v. Pi Kapppa Alpha Corporation et. al., 2018 IL 120951, 104 N. E. 3d 110