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Attorney's Version of recent court hearing and what happens next (by Jeffrey W.):

Below is a first person account of what transpired at the Aug. 29 court hearing. The author is plaintiff/owner attorney Jean Marc Zimmerman. Bottom line, Zimmerman is seeking access to the TMC owner list on behalf of Robert Tucker, an owner who ran but lost a bid to join the board Aug. 9. The judge agreed to rule on the merits of the request Dec. 12 in Manhattan.

Here is the attorney's account of the hearing:

On Wednesday, August 29, 2018, a hearing was held in New York State Supreme Court at which The Manhattan Club Association, Inc. (“TMC”) was required to show cause why it should not have to provide TMC timeshare owner (“member”) and former board candidate Mr. Robert Tucker with TMC’s membership list.

In advance of this hearing, on Monday, August 27, 2018, TMC filed papers with the Court opposing Mr. Tucker’s request and seeking dismissal of his case. TMC’s papers contend that Mr. Tucker was seeking the list for some improper purpose that TMC failed to specify (other than allegations that his counsel Zimmerman Law Group (“ZLG”), sought to use the list in a proposed litigation against TMC and its sponsors), and that he was not entitled to the list in any event because TMC’s governing document prohibits the list being disclosed directly to its members, but rather requires all use of the list to be controlled by TMC itself.

On Tuesday, August 28, 2018, ZLG filed papers responding to TMC’s arguments, which pointed out that in requesting the list, Mr. Tucker was acting in good faith, that neither he, nor ZLG, had animproper purpose, and that he was seeking to communicate with other TMC members to redress the wrongful conduct admitted to by TMC’s Sponsor (the Eichner Family and various related entities they control) in the Assurance of Discontinuance (“AOD”) entered into on August 14, 2018 with New York State Attorney General Eric Schneiderman.

ZLG included a copy of the AOD as part of its responsive papers and advised the Court that in addition to admitting having committed a variety of wrongs in connection with its management of TMC and associated timeshare sales, the Sponsor agreed to pay a $6.5M penalty, to take steps to remedy the such conduct, to sell its interest in TMC within three years, and be further barred from the timeshare industry in New York. ZLG advised the Court that the member complaints of fraud and other malfeasance resulting in the AOD included that the Sponsor: advised timeshare owners that rooms were unavailable for reservation/use by owners while the Sponsor simultaneously rented the same rooms online to the general public via sites like Expedia and Travelocity; charged timeshare owners yearly maintenance fees for a one week timeshare greater than the amount it would cost a timeshare owner to rent a comparable hotel room in NYC for one week; refused to allow timeshare owners to return their ownership interest to TMC and “walk away” without remaining liable for maintenance fees and real estate taxes; and refused to exercise TMC’s first right of refusal and decline to purchase units timeshare owners sought to sell or otherwise impeding owners efforts to sell their timeshares.

At the hearing, TMC’s counsel strenuously objected to ZLG’s papers, claiming that since TMC was not a party to the AOD, reference to the AOD in this action was improper and irrelevant. However, since, as ZLG pointed out, the Sponsor did not enter into the AOD in a vacuum, but rather because of its actions in operating TMC, and TMC’s counsel failed to cite to any legal authority refuting the case law and statutory authority cited by ZLG in favor of Mr. Tucker’s right to receive the list. The Court refused to dismiss Mr. Tucker’s complaint against TMC or deny his request for the membership list.

As regards the Court’s temporary restraining order (“TRO”) of August 13, 2018 staying all action by TMC’s Board, the Court observed that even if Mr. Tucker had been elected to the Board, since he would have been only one of seven votes, he could not have delayed or otherwise controlled board action. Accordingly, the court lifted the TRO.

As the Court had not had sufficient time to review all of the papers submitted by the parties in advance of Wednesday’s hearing, including the AOD, the Court scheduled another hearing on Mr. Tucker’s request for the list for December 12, 2018. Thus, ZLG accomplished what it set out to do, i.e., bring the wrongful conduct by TMC and its Sponsor to the attention of a Court on an expedited basis.

ZLG is considering additional steps to secure the membership list, so that the members can communicate with one another and remedy the wrongs that continue to exist at TMC without being beholden to TMC and its management to curate communcations.