Board Business Exposed

A cautionary e-mail tale. The e-mails you are about to read are works of fiction drawn from my experiences as an attorney specializing in co-op and condo law. The story they tell is a dramatization – but I have seen real-life versions of similar exchanges. And if you’re not careful, it could happen to you.

SHAREHOLDER TO BOARD

From: Bob Green<bgreen@earthlink.net>
Date: Saturday, January 16, 2016
To: John Drake<jdrakeno.6@village.com>
Cc: 88 River Road House Board
Subject: My apartment renovations

Hi, John. I’d like to confirm with you and the board that we’re good to go on my apartment alteration. I’ve completed my alteration agreement and am sending it back to you as an attachment to this e-mail. Don’t forget: I want to move the gas line and I’ll need the board’s approval to do so. My contractor’s ready to go. If the board would just give me the green light, I could get the job done! Tick-tock!

BOARD CHATTER

From: John Drake<jdrakeno.6@village.com>
Date: Wednesday, January 27, 2016
To: 88 River Road House Board
Subject: A Jackass Brays

Bob Green is a braying jackass. That guy makes my blood boil. He has lived in the building for 30 years and has not lifted a finger to help the co-op and does nothing but complain about the board’s decision-making. We do not work for Bob and we should not be bullied by him.

From: Jack Baur<baur@ctu.org>
Date: Thursday, January 28, 2016
To: 88 River Road House Board
Subject: To Hell With Him

I think we should agree, as a board, that hell will freeze over before we allow Bob Green to move his gas line.
From: Becky Boone<mingo@oxford.com>
Date: Friday, January 29, 2016
To: 88 River Road House Board
Subject: To Hell With Him

Dealing with the arrogant Mr. Green is as much fun as a trip to the dentist. Let’s not forget that he sued us. This is our chance to repay the favor, fellow board members!

PREZ TO SHAREHOLDER AND BACK AGAIN

From: John Drake<jdrakeno.6@village.com>
Date: Saturday, January 30, 2016
To: Bob Green<bgreen@earthlink.net>
Cc: 88 River Road House Board,
Jim Bowie<jbowie@lincolnmgt.com>
Subject: My apartment renovations

Hi, Bob: I’m sorry to have to say this, but Mr. Bowie, our managing agent, and Mr. Kennedy, our consulting engineer, have both recommended that the board deny your request to move your gas line due to the risk of a gas leak and a related shutdown of the gas service to an entire line of apartments in the building. My apologies for the delay in getting back to you. If you have any additional questions, please feel free to contact me.

From: Bob Green<bgreen@earthlink.net>
Date: Saturday, January 30, 2016
To: John Drake<jdrakeno.6@village.com>
Cc: 88 River Road House Board,
Jim Bowie<jbowie@lincolnmgt.com>
Subject: My apartment renovations

You don’t give a rat’s ass about the dangers of moving the pipe. I haven’t forgotten Mrs. Gale’s repairs of a few years ago, when the board gave her permission to move a gas line in a similar situation. So, let’s have a reality check, shall we? The board denied my request to move the gas line because of the lawsuit I commenced against the co-op four years ago over the water damage you refused to repair in my apartment. Your latest action is vindictive, pure and simple. See you in court. Again.

PREZ TO BOARD

From: John Drake<jdrakeno.6@village.com>
Date: Tuesday, February 9, 2016
To: 88 River Road House Board,
Jim Bowie<bowie@lincolnmgt.com>
Subject: Piece of Sh*t

That piece of sh*t Green has sued the co-op AGAIN, this time over the gas-line issue! I just got served! We should counter sue him for harassment! I’ll contact our attorney tomorrow morning as soon as I get to work.

PREZ TO ATTORNEY

From: John Drake<JD@worldtravel.com>
Date: Wednesday, February 10, 2016
To: Clinton Judd
<judddavenportburger@lawfirm.com>
Subject: Let’s sue the bastard

I learned late yesterday afternoon that that prick Bob Green is suing us. I wanted to shoot you an e-mail ASAP, so I’m writing to you from the office. Green has been a pain in the ass for as long as I can remember. Becky’s right, dealing with him is worse than a trip to the dentist. I want to stick it to him. Can we counter sue?

ATTORNEY TO BOARD

From: Clinton Judd
<judddavenportburger@lawfirm.com>
Date: Tuesday, February 16, 2016
To: 88 River House Board,
John Drake<jdrakeno.6@village.com>
Subject: The State of the Green Lawsuit

As I expressed to John on the phone last week, I strongly suggest that all board members refrain from further communications with Mr. Green, and that you permit us, as your attorneys, to handle matters. Here’s what you can expect as a defendant in the action. You will be served with a discovery request that will require you to produce any documents that you may have concerning the following: Mr. Green’s request to move his gas line; other shareholder requests to perform similar renovations; and the prior water-damage dispute with Mr. Green.
As I told John, not all communications with this office are privileged. The attorney-client privilege attaches only to communications that are seeking or giving legal advice. The attorney-client privilege can be waived if you voluntarily disclose a confidential communication to a third-party.

From: Clinton Judd
<judddavenportburger@lawfirm.com>
Date: Tuesday, March 1, 2016
To: John Drake<jdrakeno.6@village.com>,
88 River Road House Board
Subject: Feb. 10 e-mail

A new concern has arisen, John. Your Feb. 10 e-mail to this office – which was sent from your work account – would typically be privileged, but because of an agreement you signed with your employer, World Travel, you seem to have waived privilege. Your agreement with World Travel provided that: (i) any personal use of the company’s e-mail system is prohibited, (ii) the company’s e-mail system is the property of the company, and (iii) the company’s e-mail system is monitored by the company. As a result, any e-mails exchanged between you and the co-op’s general counsel sent from your job at World Travel will have to be shown to Mr. Green. The fact that your work-generated e-mails are the company’s property and can be monitored by the company means you have waived attorney-client privilege.

From: Clinton Judd
<judddavenportburger@lawfirm.com>
Date: Thursday, March 3, 2016
To: John Drake<jdrakeno.6@village.com>,
88 River Road House Board
Subject: Bad News

I’m bound to tell you that matters do not look promising for avoiding a costly full-blown trial. Mr. Green was not favorably inclined to a settlement to begin with, and your unfortunate Feb. 10 e-mail, which he unearthed in discovery, inflamed the situation even further.
Shareholder litigations against cooperative boards tend to be emotional confrontations. Until that Feb. 10 e-mail was revealed, my office was hoping to arrive at a possible settlement with opposing counsel. And the co-op’s Directors and Officers liability carrier, The Thrush Group, which is providing a defense against Mr. Green’s claims, had indicated a willingness to offer some money to Mr. Green to get the case settled. Your proprietary lease includes a typical provision requiring a shareholder to obtain board consent before performing any renovations, but such consent may not be “unreasonably withheld.” A common misconception is that the board’s decision to deny a renovation request is protected by the Business Judgment Rule. It is not. Rather, a denial of an alteration request is reviewed under a “reasonableness” standard, i.e., “legitimately related to the welfare of the cooperative.” No one will consider it reasonable when you’ve called a fellow shareholder “a prick” and stated that you want to “stick it to him.” Because of this e-mail, we doubt that any pre-trial settlement can be reached. This e-mail has emboldened Mr. Green to vigorously prosecute his claims because it seems to confirm his opinion that the board was acting out of personal animus.

MANAGER TO BOARD

From: Jim Bowie
<jbowie@lincolnmgt.com>
Date: Monday, May 16, 2016
To: John Drake<jdrakeno.6@village.com>,
Ron Grainer<rongrainer@taraking.net>,
Paul Mason<pm@acd.com>, Jack Baur<baur@ctu.org>, Becky Boone<mingo@oxford.com>
Subject: Re-election

As you all know, board elections are coming up in a month, and Bob Green is part of a very vocal group of shareholders running for office. Mr. Green has placed a solicitation under the door of every shareholder, which includes a copy of John’s rather blunt e-mail that he obtained in discovery. In light of the recent lawsuit, I’d like to offer some advice that might help you in the future:

•    Do not use e-mails between your fellow board members as a vehicle to express your frustrations about other shareholders.

•    If you need to vent about a fellow shareholder, make a telephone call. Think twice before you hit the send button on an e-mail expressing personal views. Keep in mind that text messages   are also discoverable.

•    Boards should consider creating dedicated e-mails and group e-mails (such as Google Groups). Using those e-mail tools will ensure that all e-mails involving board business will be in one location and it will be much easier to find documents. Using a group e-mail will ensure that e-mails involving board business will be sent to all members.

•    Please keep in mind that not every communication with the building’s attorney is privileged. The attorney-client privilege extends only to communications seeking or giving legal advice.

•    Also be careful about who is “cc’d” on e-mails to counsel. Copying other board members and the managing agent will not affect the privilege, but adding former board members,  other shareholders, the superintendent, or your spouse could raise issues as to whether the privilege has been waived.

•    NEVER send a sensitive e-mail from your workplace.

NEW PREZ TO EX-BOARD

From: Bob Green<bgreen@earthlink.net>
Date: Thursday, June 16, 2016
To: John Drake<jdrakeno.6@village.com>,
Ron Grainer<rongrainer@taraking.net>,
Paul Mason<pm@acd.com>, Jack Baur<baur@ctu.org>, Becky Boone<mingo@oxford.com>
Subject: Board transitions

Still calling me a “braying jackass,” Johnny boy? Well, who’s got the last laugh now, mighty ex-board members? Don’t think I – or any other members of the new board – will ever make the same mistakes you whiz kids made. And guess who’s getting ready to move a gas line!