News: June 26, 2014: Judge Rejects Archer’s Attempt to Close Down this Website and Prohibit Josephsons from Talking or Writing about Their Dispute with Ms. Archer and the Board. In an effort that had to cost the school many thousands of dollars, Archer sent two lawyers to court with about a 50 page document supporting their request for a comprehensive gag order on the Josephsons. Defendants claimed they were being irreparably damaged by the Josephsons efforts to inform people about their case and their allegations. The judge listened to their request (in about 2 minutes) and without reading a word of the document summarily rejected Defendants request and set a hearing date of August 26, 2014 on their motion to force the case into a confidential, juryless arbitration process. ____
Most of the allegations in this action arise from a leadership style that severely punishes anyone that dissents from or disagrees with the judgments or actions of the Head of School. Many of these actions are outlined in the memo supporting the Josephson’s attempts to settle their claims and the actual legal complaint filed in Superior Court (see tabs above).
The willingness to inflict drastic punishment on Anne and Michael’s children in retaliation for their decision to seek judicial review of actions they thought were wrong, reached an entirely new level when on May 29, 2014 in an action that is hard to explain without using words like petty, malicious and vindictive, Archer’s lawyer sent a letter banning all Josephsons from appearing on campus for any reason.
As this was 2 days before graduation and both of the Josephson daughters who are plaintiffs in this action were invited to and excited about attending the Arche graduation ceremonies of “best friends”.
The letter, reprinted here was timed to create maximum trauma.
“In light of the repeated false attacks on the School by the Josephsons, Archer can no longer trust them to be on School premises.
As Archer’s campus is private property, please advise your clients – Anne Josephson, Michael Josephson, Child 1 (we have omitted her name) and Child 2 – that their permission to be on School property has been revoked and they are no longer permitted to enter School property at any time for any reason. Additionally, please also inform Anne and Michael Josephson that Child 3 Josephson and child 4 Josephson are also no longer permitted to be on campus. [Emphasis in original]. Further, no member of Josephson family will be permitted to attend any School events as a guest of another student, including this Saturday’s graduation. Any attempt by any member of the Josephson family to enter the premises of The Archer School For Girls will be trespassing and will result in their removal from the premises by security and/or law enforcement.”
As explained in more detail in other posts, the Archer Board of Trustees has a legal obligation to provide oversight and to take whatever steps it can to mitigate any damages caused by improper conduct of an employee. The Josephsons believe that the edict by Ms. English to ban all Josephsons from ever coming to the Archer campus (including two daughters who had graduated and are in college in New York) indirect retaliation for the Josephson’s decision to pursue their lawful right to seek legal redress from actions they believe were unlawful was wrong. The fact that it was made two days before graduation ceremonies to assure that the Josephson children already caused to suffer humiliation and emotional distress could not accept the invitation of their closest friends to be their guests supports their view that it was also petty and vindictive.
Seeking to stave off still another wound to their children, Michael Josephson’s wrote an urgent email to the Board members (see letter below) asking them to repudiate the decision. He even offered to post a substantial cash bond to assure that neither daughter would do or say anything to offend Ms. English.
Instead, as they did before in rejecting plaintiffs offer to settle the claims, the Board chose to ratify the decision and, thereby participate in it.
Here’s the letter Mr. Josephson wrote the board members and several follow-up letters by the lawyers:
Date: May 29, 2014 at 7:44:47 PM PDT
To: all members of the Archer Board of Trustees
Subject: URGENT ACTION REQUIRED
Dear Member of the ARCHER Board of Trustees,
Since there is great urgency in you receiving this letter at once and ambiguity and confusion as to whether Mr. Walter is your personal legal representative for purposes of the lawsuit filed yesterday that names you personally as a defendant (he informed my attorney that he was not authorized to accept service of process on your behalf), I am writing you personally as still one more urgent issue has arisen that justifies and requires attention of each board member. A few hours ago, I received the attached letter sent to our attorney by Mr. Walter which includes the following passage:
“In light of the repeated false attacks on the School by the Josephsons, Archer can no longer trust them to be on School premises. As Archer’s campus is private property, please advise your clients – Anne Josephson, Michael Josephson, [Child 1] and [Child 2] – that their permission to be on School property has been revoked and they are no longer permitted to enter School property at any time for any reason.
Additionally, please also inform Anne and Michael Josephson that Abrielle Josephson and Samara Josephson are also no longer permitted to be on campus. [Emphasis in original]. Further, no member of Josephson family will be permitted to attend any School events as a guest of another student, including this Saturday’s graduation. Any attempt by any member of the Josephson family to enter the premises of The Archer School For Girls will be trespassing and will result in their removal from the premises by security and/or law enforcement.”
I don’t know whether you saw it, knew of it before it was sent, or otherwise approved of this action to banish the Josephsons from Archer, but I sincerely and respectfully suggest these action serves no legitimate institutional purpose and it is so inflammatory that, may provide an insurmountable barrier to any future settlement, especially if endorsed by you and fellow board members should you choose inaction rather than intervention.
While this action will doubtless enhance our legal claims alleging malice (it so clearly demonstrates a willingness of Ms. English, and possibly the board, to inflict intense injury on our children in retaliation for Anne’s and my decision to seek judicial review of actions that had enormous impact on our kids. I hope you can see how it increases your potential liability significantly.
Our primary concern is the well-being of our children and I implore you as a member of the board to call an emergency meeting to instruct Ms. English to revoke this new assault designed to shame our children and deny them the simple privilege of sharing joyful experiences with their lifelong friends and former classmates.
Both daughters were invited to the graduation ceremonies. Please, please do not participate in punishing them still further by this completely unnecessary and vindictive act of Ms. English. Again you and your colleagues are in a position to prevent harm. I deeply and sincerely hope you do so rather than become complicit in still another intentional act to inflict emotional distress on two young girls.
Ironically, I received this new provocation as I was in the midst of drafting a conciliatory note including a new and different offer to settle and release you from liability in the lawsuit in a last ditch effort to de-escalate the confrontation that is turning into a very ugly and dangerous firestorm. The letter I intended to write and the offer to settle may have provided a way to end the controversy before it generates waves of acrimony that can’t be stopped. Given the new events I think it wise to hold that offer in abeyance.
I do not know whether you have yet been personally served with the lawsuit we filed or whether Mr. Walter sent you a copy. In case you haven’t seen it and to assure you make your decision about repudiating the new banishment order I have attached a copy. A recent communication from Mr. Walter to my attorney, Mr. Kosnett, suggests that Mr. Walter’s confidence that our claims against you and other board members are frivolous, that they will be summarily dismissed, and that this matter will be settled by an arbitration rather than a court trial, may have resulted in a dangerous underestimation of the strength of our claims and the likelihood that a court will hold that you and other members of the board violated a fiduciary duty to mitigate damages and to provide internal controls and oversight regarding Ms. English’s conduct. I also fear that you may have not fully understood the implications of your attorney’s last-minute attempts (which he had to know we could not accept) to forgo our right to a jury trial and the processes provided to gather the evidence we need to prove our allegations so that Ms. English will ultimately be held accountable.
It is likely that Mr. Walter informed you that the allegations contained in our action reveal a very serious risk of personal liability to you and, possibly, irreconcilable conflicts of interest between and among the various defendants that might justify or require you to retain separate counsel. If you do so, please inform your lawyer of our willingness to discuss settlement before things get even worse.
Michael S. Josephson
From: Brian P. Walter
Date: Fri, May 30, 2014 at 10:13 AM
Subject: Fwd: URGENT ACTION REQUIRED
To: James Kosnett
Dear Mr. Kosnett,
I am forwarding the email that your client, Michael Josephson, sent to members of the Board of Trustees. His communication is inappropriate and further evidence of his desperate attempt to justify an unjustified lawsuit. I have been very clear with you that any communications need to be sent to me. As you are aware, Mr. Josephson has violated proper communication channels.
Please inform your client that he needs to show restraint and follow proper communication protocols. He has chosen to sue The Archer School for Girls, its Board of Trustees and Elizabeth English. He needs to communicate through you. If he persists in communicating directly to the defendants in this matter, serious consideration will be given to seeking a harassment restraining order against him and perhaps other action.
With respect to your email to me yesterday evening and this email from Mr. Josephson, the reason the School will not allow the Josephsons on campus is that in addition to suing The Archer School For Girls, Anne and Michael Josephson have engaged in a relentless pattern of vicious unwarranted attacks on the School and especially its highly regarded Head of School. Recently we have learned that their daughters, [Child 1 and Child 2] have also been actively spreading false and malicious statements about the School in addition to suing the School. The School will not tolerate those attacks and is certainly not going to facilitate those attacks by permitting the Josephsons to keep coming on campus so that they can continue this outrageous behavior.
It is imperative that you do everything to inform each of your clients, including Child 1 and Child 2, about the fact that they will be trespassing if they attempt to enter the premises of The Archer School For Girls. And you need to inform Mr. Josephson that he needs to cease any and all contact with Board members. Thank you.
On May 30, 2014, at 1:59 PM, “Kosnett Law” wrote:
I have conveyed a copy of your most recent email to Mr. Josephson, and I do not envision any future circumstance where direct communication will be necessary once the issues of legal representation are resolved. You know very well that this communication was in direct response to your clients’ astonishing family-wide ban, intended among other things to inflict still further pain on the Josephson girls by forbidding them to attend the graduation ceremonies of their best friends.
Thus, if the Board was to have a chance to repudiate this decision they needed to have the information last night. If their decision to do nothing and thereby ratify still another vindictive act with no legitimate institutional purpose is based on your stated concerns that the girls will say bad or improper things, we believe this is another sham that slanders the Josephsons with no basis in fact.
Nevertheless, my clients assure you that, if the girls are permitted to attend the ceremonies they will say nothing at all about Archer, the lawsuit or anything related. Moreover my clients are willing to put up a very substantial cash bond to back this assurance. To the best of my clients’ knowledge, their daughters never did or said what you say they did. If you will be so kind as to provide substance to these charges, such as when, to whom and what was said, my clients will look into the matter and provide guidance if it is warranted.
Frankly, my clients are confident that your clients will not, because they cannot, support this pretext to infliction of further punishment.
Similarly, will you provide any context or substance for your charge that Anne and Michael Josephson have engaged “in a relentless pattern of vicious unwarranted attacks on the School, especially the head of the school” outside the privileged context of this litigation and their offer to settle their claim?
James Victor Kosnett
From: Brian P. Walter
Date: Fri, May 30, 201
Subject: Fwd: URGENT ACTION REQUIRED
To: James Kosnett Dear
Your email seems to miss the point of my prior communications regarding this matter. [Child 1 and Child 2] Josephson are suing Archer, Elizabeth English, and current and former trustees. The School is a private institution on private property. Entrance onto School property is a privilege. The School is not going to extend this privilege to persons who are making false and malicious allegations against it and suing it. No bond or other promise to behave will change that fact, nor will it undo the harm already perpetrated by the Josephsons.
The Josephson children (and parents) are not permitted to be on campus. Pursuant to Penal Code 602, they will be trespassing if they attempt to enter the campus.
It’s not hard to see why the Josephson’s have launched this website. This is an example where Archer’s lawyer very aggressively justifies the decision to ban the Josephsons from the Archer campus with accusations against the Josephsons AND their daughters but when asked to give specifics he completely backs off and offers a different justification. The new justification, however, also reveals continuous efforts to characterize Ms. English and the school as victims although the record seems to indicate they have been both the aggressors and wrongdoers.