Can E-Mails Serve for Board of Directors Consent Meetings?

As many of you know, in lieu of actual face-to-face meetings, corporate boards of directors may act through a consent meeting, which involves all of the directors signing onto a written document, which has the same force and effect as if the board met and voted on a resolution. While the board can obviously pass around a document to be signed by everyone (or FedEx in copies with their signatures to act as counterparts), is it possible under Massachusetts law for a consent meeting to be achieved through email?

Under Massachusetts General Laws Chapter 156D, ยง 8.21, each director’s consent may be delivered to the corporation through electronic transmission; however, the consent must be signed by the director, which leads to the question of whether an email can be “signed” with the same force and effect as putting pen to paper under Massachusetts law?

Massachusetts has adopted the Uniform Electronic Transactions Act, which grants electronic signatures (defined as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record”) the same effect as a written signature. In addition, the Act specifically excludes certain types of transaction from its applicability — consent meetings, or any transactions of corporate governance for that matter, are not mentioned.

Therefore, while Massachusetts does recognize equal validity between written signatures and electronic signatures (in emails) in most circumstances, it is important to note that the Massachusetts corporate statutes do not specifically authorize the use of emails and electronic signatures for consent meetings — if you do use emails for consent meetings, you do so at your own risk. To ensure the enforceability of consent meetings, it may be preferable to simply execute a consent meeting in counterpart by having every director mail in their signed copy of the consent meeting document.