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J.G. Wentworth Scam Lawsuit; J.G. Wentworth Sucks Lawsuit, Peachtree Scam Lawsuit; Peachtree Sucks Lawsuit; http://jgwentworth-scam.com; http://jgw-sucks.com; JGWPT
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Plaintiff’s request for expedited discovery also lacks merit. Discovery has already begun
and thus the motion for expedited discovery should be denied as moot.
Even if this Court were inclined to enjoin any disparagement during the pendency of this
litigation, any such order should be mutual – it would be inherently unfair to subject Defendants
to an order limiting their freedom of speech and ability to defend themselves against statements
by Plaintiff unless Plaintiff also was ordered not to disparage Defendants.
The following review of the allegations in the Complaint demonstrates that none of the
statements referenced by Plaintiff are actionable, and, in any event, non-parties – not Defendants
– made the statements at issue.
The alleged statements attached to Plaintiff’s Motion are all independent nonparty
sources of information. Defendants do not own the jgw-sucks.com (“jgw-sucks site”) and
jgwentworth-scam.com (“jgw-scam site”) websites listed in the Complaint. Plaintiff’s
Complaint admits that the internet contains the following links (Exhibits are attached to
Plaintiff’s Motion). We have listed Plaintiff’s “exhibits” and ask the Court to take judicial notice
of the following websites:
Exhibit 1
1. Topic: JGW – “Awful Customer Service”
URL: http://www.complaintsboard.com/complaints/jg-wentworth-savannah-georgia- c475165.html
Originating website: http://www.ComplaintsBoard.com (rated #1 as the most trusted
and popular consumer complaints website.) See Exhibit 1.
Exhibit 2
2. Topic: They (JGW) cannot be allowed to get away with this.
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URL: http://www.complaintsboard.com/complaints/jg-wentworth-c465423.html
Originating website: http://www.ComplaintsBoard.com . See Exhibit 2. Exhibit 3
3. Topic: J.G. Wentworth Really Screwed Me Over and Over!!!!
URL: http://www.ripoffreport.com/financial-services/j-g-wentworth-321-he/j-g- wentworth-321-henderson-5ez64.htm
Originating website: http://www.ripoffreport.com (Online since September 1, 1999.
Over 1 million complaints filed online). See Exhibit 3.
Exhibit 4
4. Topic: J.G. Wentworth and Peachtree Deceptive Sales Practices?!?
URL: http://www.ripoffreport.com/financial-services/j-g-wentworth-peacht/j-g- wentworth-peachtree-sett-b40b4.htm
Originating website: http://www.ripoffreport.com . See Exhibit 4.
Exhibit 5
5. Topic: A.M. Best Considers Dropping J.G. Wentworth Financial Ratings – Is
Bankruptcy On Its Way?
URL: http://www.businesswire.com/news/home/20111010005989/en/A.M.-Places- Ratings-321-Henderson-Receivables-LLC
Originating website: http://BusinessWire.com . See Exhibit 5.
Exhibit 6
6. Other Ruthless Structured Settlement Companies
http://jgwentworth-scam.com/2011/09/03/other-ruthless-structured-settlement-
companies/
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A. Topic: RSL Funding aka Rapid Settlement – “Rapid Settlement shows up at
prospects house in an effort to pressure them to sign their contract”
URL: http://www.ripoffreport.com/financial-services/rapid-settlements/rapid- settlements-they-been-ha-5f3fy.htm
Originating website: http://www.ripoffreport.com . See Exhibit 6A.
B. Topic: Woodbridge Investments – “These Guys Stalk the Young and
Innocent”
URL: http://jgwentworth-scam.com/wp- content/uploads/2011/09/Woodbridge_Investments-PARASITES.pdf Author: Woodbridge Investments President Robert H. Shapiro.
See Exhibit 6B. Exhibit 7
7. Peachtree Settlement Funding Complaints
http://jgwentworth-scam.com/wp-content/uploads/2011/09/Woodbridge_Investments-PARASITES.pdf
Content: see Exhibit 7
A. Peachtree Lies To Its Customers http://www.uslaw.com/library/Litigation/Peachtree_Settlement_Funding_Continues_Lie Consumers.php?item=219072 . See Exhibit 7A - Author: John Darer (Same author who J.G. Wentworth uses in their allegations against Defendants). B. Topic: Did Peachtree Settlement Funding Lie to This Annuitant?
URL: http://security.feedfury.com/content/45153679-did-peachtree-settlement-funding- lie- to-this-annuitant.html. See Exhibit 7B - Author: John Darer (Same author who J.G.
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Wentworth references multiple times as a source in their allegations against Defendants).
C. Topic: Peachtree Settlement employee “This company breaks so many laws and
treats their employees like crap.”
URL: http://www.ripoffreport.com/cash-services/joe-simmons-peachtre/joe- simmons-peachtree- settleme-ez98b.htm. See Exhibit 7C (website: http://RipOffReport.com ). D. Topic: Client Says that Peachtree Settlement Funding Ripped Him Off
URL: http://www.ripoffreport.com/bbb-better-business-bureau/peachtree- settlement/peachtree-settlement-funding-c-f376n.htm. See Exhibit 7D. E. Topic: Peachtree Settlement Funding are “Thieves”
URL: http://www.ripoffreport.com/financial-services/peachtree-settlement/peachtree-funding-peachtree-s-f6cwy.htm
Originating website: http://RipOffReport.com .
See Exhibit 7E.
Exhibit 8
8. Topic: Cancellation Letters That J.G. Wentworth Send Their Clients:
URL: http://jgwentworth-scam.com/2011/09/03/letters-they-send/ . See Exhibit 8.
A. Topic: J.G. Wentworth Cancellation Letter #1
URL: http://structuredsettlements.typepad.com/structured_settlements_4r/files/jg_wentworth_letter_to_fl_structured_settlement_annuitant_sept_17_2008.pdf
Originating website: John Darer’s blog (Same author who J.G. Wentworth references
multiple times as a source in their allegations against the Defendants. See Exhibit 8A
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B. Topic: J.G. Wentworth Cancellation Letter #2
URL: http://jgwentworth-scam.com/wp-content/uploads/2011/09/JGW-Cancellation-Letter-09-12-08.pdf Originating author: JG Wentworth. See Exhibit 8B. C. Topic: Court Denies Settlement to J.G. Wentworth/321 Henderson URL:http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20050416/NEWS/3041699 90&cid=sitesearch
Originating website: http://www.PoconoRecord.com . See Exhibit 8C.
D. Topic: Insurer Claims That JG Wentworth Employs Deception
URL: http://www.bizjournals.com/philadelphia/stories/1998/06/08/story1.html?page=all
Originating website: Philadelphia Business Journal http://www.bizjournals.com . See Exhibit 8D.
E. Topic: Wentworth Loses Case – Judge Writes “Wentworth must suffer the loss
occasioned by its overreaching and misconduct in this transaction”
URL:http://www.kyeb.uscourts.gov/opin/leeopin/00-6067%20GOINS%20(2002)%20Order.htm
Originating Website: U. S. Bankruptcy Court, Eastern District of Kentucky. See Exhibit 8E. F. Topic: Structured Settlements 4Real Blog (John Darer) Places J.G. Wentworth in the Hall of Shame
URL:http://structuredsettlements.typepad.com/structured_settlements_4r/2006/03/structured_sett_1.html
Originating website: John Darer’s blog. See Exhibit 8F.
G. Topic: JG Wentworth Exposed!
URL:http://structuredsettlements.typepad.com/structured_settlements_4r/2006/06/jg_went
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worth_al.html
Originating website: John Darer’s blog. See Exhibit 8G.
H. Topic: J.G. Wentworth Loses Another Case (10/06)
URL:http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202504178360&slreturn=1
Originating website: New York Law Journal. See Exhibit 8H.
I. Topic: Notaries Complaining That JG Wentworth Isn’t Paying Them for Their Work
URL:http://www.notaryrotary.com/archive/forum/2006/May/JG_WENTWORTH_UPDAT E.html
Originating website: http://www.NotaryRotary.com . See Exhibit 8I J. Topic: Article Discussing the JG Wentworth Practice of Offering Low Quotes
URL:http://structuredsettlements.typepad.com/structured_settlements_4r/2008/03/why-doesnt-jg-w.html
Originating website: John Darer’s blog. See Exhibit 8J. K. Topic: Professionals Complaining That They Aren’t Getting Paid by J.G. Wentworth!
URL:http://www.notaryrotary.com/archive/forum/2005/June/J_G_Wentworth.html . See Exhibit 8K.
L. Topic: JG Wentworth Tax Fraud Scandal
http://faculty.law.wayne.edu/mcintyre/text/tax_lawyer_fraud.pdf (currently offline)
http://jgwentworth-scam.com/wp-content/uploads/2011/09/tax_lawyer_fraud.pdf Originating website: Wayne State University - Legal Department. See Exhibit 8L.
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Exhibit 9
9. Topic: J.G. Wentworth Better Business Bureau Report Showing 41 Complaints
URL: http://jgwentworth-scam.com/wp-content/uploads/2011/09/JGW-BBB-March-21- 2011-41-COMPLAINTS.pdf
Originating website: The Better Business Bureau. See Exhibit 9.
Exhibit 10
10. Topic: November 4, 2008 – J.G. Wentworth Loses Satisfactory Rating from the
Better Business Bureau
URL: http://jgwentworth-scam.com/2011/09/03/november-4-2008-j-g-wentworth-loses- satisfactory-rating-from-the-better-business-bureau/
Originating website: Better Business Bureau.
See Exhibit 10.
Exhibit 11
11. Topic: November 28, 2008 – J.G. Wentworth Gasping its Last Breath?
URL: http://jgwentworth-scam.com/2011/09/03/november-28-2008-j-g-wentworth-gasping-its-last-breath/ . See Exhibit 11. A. Topic: Standard and Poor’s Ratings Service Downgraded the Long-Term Counterparty Credit Rating on J.G. Wentworth Inc.
URL: http://www.philly.com/philly/blogs/inq-phillydeals/SP_says_JG_Wentworth_needs_more_capital_cuts_credit_ratings.html
Originating website: http://www.philly.com . See Exhibit 11A.
Exhibit 12
12. Topic: What is it Like Working at J.G. Wentworth? Employee writes “DON’T WORK HERE AND DON’T DO BUSINESS WITH THESE PEOPLE!”
URL: http://jgwentworth-scam.com/2011/09/03/what-is-it-like-working-at-j-g-wentworth/
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Originating website: Jobvent.com Link: http://www.jobitorial.com/j-g-wentworth-job- reviews-C2503 . See Exhibit 12A.
Exhibit 13
13. Topic: J.G. Wentworth’s Wilkopedia Link from April 7, 2010 – Paragraph
Discussing J.G. Wentworth’s bankruptcy.
URL: http://jgwentworth-scam.com/wp-content/uploads/2011/09/wiki.pdf . See Exhibit 13.
Exhibit 14
14. Articled discussing J.G. Wentworth charging clients 70% rates.
URL: http://jgwentworth-scam.com/2011/09/03/an-internal-revenue-service-irs-article/ . See Exhibit 14.
A. Topic: SPITZER ANNOUNCES FIRST-OF-ITS-KIND AGREEMENT TO PROTECT
CONSUMERS {against J.G.Wentworth} WHO WIN, AND THEN SELL, PERSONAL INJURY SETTLEMENTS
URL: http://www.ag.ny.gov/media_center/1999/jul/jul29b_99.html
Originating website: Office of The Attorney General – State of New
York http://www.ag.ny.gov . See Exhibit 14A. B. Topic: An IRS Article which discusses a structured settlement factoring company that
exploited clients by as much as 70%! That sounds a lot like they are discussing J.G. Wentworth. URL: http://www.irs.gov/businesses/small/article/0,,id=185990,00.html Website: www.IRS.gov . See Exhibit 14B.
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Exhibit 15
15. 23 Complaints!!! From the major complaint websites.
A. Topic: Client Feels Defrauded by J.G. Wentworth
URL: http://www.ripoffreport.com/financial-services/j-g-wentworth-hender/j-g-wentworth-henderson-re-64x2b.htm . See Exhibit 15A. B. Topic: J.G. Wentworth Are Liars and Make False Promises That They Won’t Keep
URL: http://www.ripoffreport.com/financial-services/j-g-wentworth/j-g-wentworth-lied- and-about-g-53mea.htm . See Exhibit 15B. C. Topic: Client is Disgusted and Wants to Start a Class Action AgainstJ.G. Wentworth URL: http://www.complaintsboard.com/complaints/jg-wentworth-kansas-city-missouri- c209486.html See Exhibit 15B D. Topic: Another J.G. Wentworth Client Who Feels Defrauded URL: http://www.ripoffreport.com/loans/j-g-wentworth-321-he/j-g-wentworth-321- henderson-r-388f4.htm . See Exhibit 15D. E. Topic: Client’s Nightmare Story Then Told “Too-Bad-You’re-Stuck-With-Us” By J.G. Wentworth
URL: http://www.ripoffreport.com/cash-services/j-g-wentworth-321-he/j-g-wentworth- 321-henderson-cfff6.htm.
See Exhibit 15E.
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F. Topic: Client Preyed on and Harassed By J.G. Wentworth
URL:http://www.complaintsboard.com/complaints/jg-wentworth-c188493.html . See Exhibit 15F.
G. Topic: Client So Upset With J.G. Wentworth That They Contacted the FBI
URL:http://www.complaintsboard.com/complaints/jg-wentworth-many-pennsylvania-c140961.html. See Exhibit 15G.
H. Topic: Client Demanding That People Rise Up and Start Class Action Lawsuit
URL:http://www.complaintsboard.com/complaints/j-g-wentworth-fountain-valley-
california-c358394.html.
See Exhibit 15H.
I. Topic: Client Says They Are a Ruthless Company
URL: http://www.ripoffreport.com/cash-services/j-g-wentworth-321-he/j-g-wentworth-321-henderson-5e2f7.htm. See Exhibit 15I. J. Topic: Client Strongly Recommends Never Doing Business With J.G. WSentworth
URL: http://www.ripoffreport.com/financial-services/j-g-wentworth-321-he/j-g-
wentworth-321-henderson-5ez64.htm.
See Exhibit 15J.
K. Topic: Client Was Taken Advantage Of By J.G. Wentworth
URL: http://www.complaintsboard.com/complaints/jg-wentworth-c265922.html . See Exhibit 15K.
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L. Topic: J.G. Wentworth Lawyers Never Showed Up to Represent Client
URL:http://www.complaintsboard.com/complaints/jg-wentworth-new-jersey-
c303248.html.
See Exhibit 15L.
M. Topic: J.G. Wentworth Misrepresentation of Contract and Interest Fees to Mentally Diminished Woman
URL:http://www.complaintsboard.com/complaints/jg-wentworth-maine-c335117.html .
See Exhibit 15M.
N. Topic: Notaries Complaining That J.G. Wentworth Are Not Paying Them For Their
URL:http://www.notaryrotary.com/archive/forum/2006/May/JG_WENTWORTH_UPD
ATE.html .
See Exhibit 15N.
O. Topic: Family of Deceased Annuitant Sued by J.G. Wentworth
URL:http://statecasefiles.justia.com/documents/ohio/seventh-district-court-of-
appeals/2008-ohio-3089.pdf.
See Exhibit 15O.
P. Topic: Eight More J.G. Wentworth Complaints
URL:http://www.complaintsboard.com/?search=J.G.+Wentworth&everything=Everythi
ng
See Exhibit 15P.
Exhibit 16
16. Topic: J.G. Wentworth’s Wikipedia article (discussing charging clients 70%,
bankruptcy, breach of contract, and a Los Angeles county 2011court case that mentions
“unfair
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business practices”, “referring their own attorneys to clients” and actions “against its own
clients included fraud, misrepresentation, and practices that were oppressive and
unconscionable”.
URL: http://jgwentworth-scam.com/wp-content/uploads/2011/09/J.G.W.-Wiki-013011pdf.pdf Originating website: http://Wikipedia.org .
See Exhibit 16.
Exhibit 17
17. J.G. Wentworth Issues (See Peachtree Complaints)
URL: http://jgwentworth-scam.com/2011/09/03/j-g-wentworth-issues-see-peachtree-
complaints/ . See Exhibit 17.
A. Topic: March 21, 2011 BBB Report Showing Multiple Complaints
URL: http://jgwentworth-scam.com/wp-content/uploads/2011/09/JGW-BBB-March-21-2011-41-COMPLAINTS.pdf Website: http://www.BBB.org - Better Business Bureau. See Exhibit 17A.
B. Topic: Better Business Bureau letter signed by Richard Connely telling client that J.G.
Wentworth agrees stop calling/harassing client. URL: http://jgwentworth-scam.com/wp-
content/uploads/2011/09/J.G._Wentworth_Better_Business_Bureau_Complaint.pdf.
See Exhibit 17B.
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None of this information even purports to be a statement by Defendants. The facts stated are all
statements by independent nonparties other than Defendants.
The alleged statement concerning the recent litigation loss in the case Ceron v. 321 Henderson Receivables, No. B224935, 2011 WL 240243 (Calif. Ct. App. Jan. 26, 2011) could
not be verified – it was not present on the internet to Defendant’s knowledge.
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ARGUMENT I. THE MOTION SHOULD BE DENIED BECAUSE PLAINTIFF FAILED TO
SATISFY ANY OF THE REQUIRED ELEMENTS FOR A PRELIMINARY INJUNCTION
To obtain a preliminary injunction, a plaintiff must meet four requirements: 1) a “real
probability of prevailing on the merits, not merely a remote possibility of doing so;” 2) lesser
injury would be done to the defendant by granting the injunction than would result to plaintiff by
denying it; 3) that plaintiff would suffer irreparable injury unless the injunction was granted; and
4) that the public interest favored an injunction. Fogle v. H & G Rest., Inc., 337 Md. 441, 455- 57, 654 A.2d 449, 456-57 (1995) (reversing decision granting injunction). The burden of
proving facts sufficient to satisfy each of the four required elements rests on the plaintiff, and the
“failure to prove the existence of even one of the four factors will preclude the grant of
preliminary [injunctive] relief.” Id. at 456, 654 A.2d at 456. Plaintiff failed to meet any of these
requirements.
II. NONE OF THE ALLEGED STATEMENTS ARE ACTIONABLE
None of the statements referenced by Plaintiff are actionable. Plaintiff’s Complaint,
which sounds in defamation, also asserts related causes of action such as false light, false
advertising and injurious falsehood, however, these other claims “‘may not stand unless the
claim also meets the standards of defamation.’” See Piscatelli v. Smith, 197 Md. App. 23, 38, 12 A.3d 164, 173 (2011) (quoting Crowley v. Fox Broadcasting Co., 851 F. Supp. 700, 704
(applying Maryland law)).
The elements of the cause of action for defamation in Maryland are well settled.
“[I]n order to make out a prima facie case of defamation the plaintiff must allege that (1) the defendant made a defamatory communication, i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement to be defamatory; (2) that the statement was false; (3) that the defendant was at fault
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in communicating the statement; and (4) that the plaintiff suffered harm.” Piscatelli v. Smith, 197 Md. App. at 37, 12 A.3d at 173 (quoting Agora, Inc. v. Axxess, Inc., 90 F.
Supp. 2d 697, 701 (D. Md. 2000) (citing Peroutka v. Streng, 116 Md. App. 301, 311, 695 A.2d
1287, 1293 (1997) and Shapiro v. Masssengill, 105 Md. App. 743, 772, 661 A.2d 202, 216-17
(1995))).
As the Piscatelli Court explained, in the context of defamation, a statement is false only
when it is “‘not substantially correct.’” Piscatelli v. Smith, 197 Md. App. at 37, 12 A.3d at 173
(quoting Batson v. Shiflett, 325 Md. 684, 726, 602 A.2d 1191, 1212 (1992)). The question of
whether a statement is defamatory is an issue of law that is determined by the court. Piscatelli v.
Smith, 197 Md. App. at 37-38, 12 A.3d at 172-73 (citing Chesapeake Publishing v. Williams, 339
Md. 285, 296, 661 A.2d 1169, 1174 (1995)).
Even if a court were to determine that a particular statement was defamatory, Maryland
law recognizes three defenses that, if applicable, bar recovery. Piscatelli v. Smith, 197 Md. App.
at 38, 12 A.3d at 173. First, Maryland law recognizes the qualified privilege to report upon
judicial proceedings. Piscatelli v. Smith, 197 Md. App. at 38, 12 A.3d at 173 (citing Chesapeake
Publishing, 339 Md. at 296, 661 A.2d at 1174). Second, Maryland law recognizes the fair
comment privilege. Piscatelli v. Smith, 197 Md. App. at 38, 12 A.3d at 173 (citing A.S. Abell
Co. v. Kirby, 227 Md. 267, 272, 274, 176 A.2d 340, 343 (1961)). Third, Maryland law
recognizes as a defense to defamation that “a person is entitled to express an opinion without
liability if ‘the facts from which a defendant forms his or her opinion are given or are readily
available and those facts cannot be proved false....’” Piscatelli v. Smith, 197 Md. App. at 39, 12
A.3d at 174 (quoting Peroutka, 116 Md. App. at 320, 695 A.2d at 1297)).
The statements cited by Plaintiff are not false or defamatory, and in any event, all three
defenses preclude recovery.
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A. None of the Statements Are Defamatory.
As a matter of law, none of the statements cited by Plaintiff are defamatory. See
Piscatelli v. Smith, 197 Md. App. at 38, 12 A.3d at 173. Every one of the statements alleged by
Plaintiff in its Complaint is from an independent nonparty source cited above. See supra pp. 2-
13. These are facts that were stated by courts and other independent nonparty sources. These
facts are available in numerous ways, including through the Internet at the websites cited above.
Even if Defendants made any statement of these facts or expressed any opinion about these facts,
the statements are not defamatory as a matter of law because they are true factual statements or
statements of opinion. Even if one or more of the underlying factual statements were not true,
the statements were made by independent nonparty sources, and thus Defendants did not make
any statements that are defamatory.
B. The Qualified Privilege to Report on Judicial Proceedings Bars Recovery.
The qualified privilege to report upon judicial proceedings precludes recovery here. See
Piscatelli v. Smith, 197 Md. App. at 38, 12 A.3d at 173 (citing Chesapeake Publishing, 339 Md.
at 296, 661 A.2d at 1174 (“In Maryland, there exists a qualified privilege to report on legal
proceedings, even if the story contains defamatory material, as long as the account is fair and
substantially accurate.”).
This privilege is qualified and can be overcome only upon a showing of actual malice
under one of two tests. Piscatelli v. Smith, 197 Md. App. at 38, 12 A.3d at 173. The first is
drawn from the United States Supreme Court’s landmark ruling in New York Times v. Sullivan,
376 U.S. 254, 279–80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). Under this analysis, the
privilege is not applicable if the defendant knew that the republished statements were false or
acted with reckless disregard as to their truth or falsity. Rosenberg v. Helinski, 328 Md. 664,
677-78, 616 A.2d 866, 872-73 (1992); Marchesi v. Franchino, 283 Md. 131, 134-35, 387 A.2d
18
1129, 1130-31 (1978). The second test is based upon the Restatement (Second) of Torts § 611,
Comment a (1977), and focuses upon the fairness and accuracy of the report. Under this
approach, the privilege is applicable as long as the report is “accurate and complete or a fair
abridgement of the occurrence reported.” Rosenberg, 328 Md. at 678, 616 A.2d at 873 (quoting
Restatement (Second) of Torts § 611). Maryland favors the latter approach. See, e.g., Piscatelli
v. Smith, 197 Md. App. at 38, 12 A.3d 164 (citing Chesapeake Publishing, 339 Md. at 296-97,
302 n.5, 661 A.2d 1169; Rosenberg, 328 Md. at 678, 616 A.2d 866).
Here, the statements at issue relate to judicial proceedings. The facts and opinions can be
discerned from independent nonparty sources and were made regarding a matter of public
concern, business practices in the structured settlement market.
C. The Fair Comment Privilege Bars Recovery.
The fair comment privilege precludes relief. See Piscatelli v. Smith, 197 Md. App. at 38, 12 A.3d at 174 (citing A.S. Abell Co. v. Kirby, 227 Md. at 272, 274, 176 A.2d at 342-43). Under
Maryland law, every member of the community enjoys the privilege to make statements “without
liability, [to] honestly express a fair and reasonable opinion or comment on matters of legitimate
public interest.” Piscatelli v. Smith, 197 Md. App. at 39, 12 A.3d at 174 (quoting A.S. Abell Co.
v. Kirby, 227 Md. at 272, 274, 176 A.2d at 342-43). The rationale behind this rule is that “such
discussion is in the furtherance of an interest of social importance, and therefore it is held
entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation.”
Id.
The structured settlement market affects numerous people and is clearly a matter of public concern. Plaintiff’s business practices and integrity have been sharply called into question
by numerous independent nonparty sources. Even if Defendants commented on such matters,
the fair comment privilege bars recovery.
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D. The Defense of the Right to Express an Opinion Precludes Recovery.
The right to express an opinion provides another applicable defense to defamation – that
“a person is entitled to express an opinion without liability if ‘the facts from which a defendant
forms his or her opinion are given or are readily available and those facts cannot be proved
false.’” See Piscatelli v. Smith, 197 Md. App. at 39, 12 A.3d at 147 (quoting Peroutka, 116 Md.
App. at 320, 695 A.2d at 1297)). Where the defendant makes a factual statement or expresses an
opinion based on facts supplied by third parties, the defendant is not liable for the statements if
the statement of facts is not defamatory or if both the defendant and the person receiving the
communication assume the facts stated are true. See Piscatelli v. Smith, 197 Md. App. at 39, 12
A.3d at 174 (citing Restatement (Second) of Torts § 566 Comment c (1976)).
Here, Defendants are not even accused of stating facts known only to Defendants;
Plaintiff complains that it disagrees with the opinions allegedly expressed by Defendants. The
right to express an opinion supersedes Plaintiff’s claim. Plaintiff may not like the
characterization of its conduct and integrity, but “an ordinary person, reading the matter
complained of, [would] be likely to understand it as an expression of [opinion]” and the factual
basis for those opinions are readily ascertainable from the same quotation.” Piscatelli v. Smith,
197 Md. App. at 39, 12 A.3d 174 (quoting A.S. Abell Co. v. Kirby, 227 Md. at 274, 176 A.2d at 343). Expressing a negative opinion of Plaintiff’s business practices is clearly an opinion
protected by Maryland law.
Despite the fact that Plaintiff’s entire Complaint rests on the defamation allegations,
Plaintiff failed to cite even a single defamation case anywhere in its voluminous Motion.
Plaintiff lacks even a remote possibility of prevailing on any defamation claim.
20
III. PLAINTIFF FAILED TO SHOW A REAL PROBABILITY OF PREVAILING ON ANY CAUSE OF ACTION
The only two causes of action cited by Plaintiff in its Motion also lack any real
probability that Plaintiff will prevail.
On the false advertising claim, the trial court in C.B. Fleet Co. v. SmithKline Beecham
Consumer Healthcare, L.P., 131 F.3d 430, 434 (4th Cir. 1997), rejected the plaintiff’s claim on
the grounds that the plaintiff “failed to carry its burden to prove that either advertising claim was
false.” The United States Court of Appeals for the Fourth Circuit affirmed this decision. This
case therefore provides no support whatsoever for Plaintiff’s Motion. Here, Plaintiff failed to
prove any alleged advertising claim was false and thus Plaintiff’s false advertising cause of
action lacks merit.
On the Maryland Consumer Protection Act claim, the Court of Special Appeals in
Hallowell v. Citaramanis, 88 Md. App. 160, 172, 594 A.2d 591, 597 (1991), reversed the trial
court’s judgment awarding the plaintiff damages under Maryland Code, Commercial Law,
Section 13-308, on the grounds that the plaintiff did not prove actual damages. This case
therefore undermines, rather than supports, Plaintiff’s Motion. Here, Plaintiff failed to prove any
alleged deceptive practice and therefore Plaintiff’s Consumer Protection Act cause of action
lacks merit.
In sum, Plaintiff lacks even a remote possibility of prevailing on any claim. Even if
Plaintiff had established a remote possibility of prevailing on a claim, such a showing is
insufficient as a matter of law. Plaintiff was required to show a “real probability” of success on
the merits. See Fogle v. H & G Rest., Inc., 337 Md. at 455-56, 654 A.2d at 456-57. Plaintiff
failed to support its Motion with any case law supporting any cause of action. It would be
inherently unfair if Plaintiff were permitted to supplement its insufficient Motion with support
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that Defendants have not seen. On this record, Plaintiff has not shown a real probability of
prevailing on any cause of action, and for this reason alone the Motion lacks merit and should be
denied.
IV. PLAINTIFF FAILED TO PROVE LESSER INJURY WOULD BE DONE TO DEFENDANTS BY GRANTING THE INJUNCTION THAN WOULD RESULT TO PLAINTIFF BY DENYING IT
Plaintiff seeks a wholly unwarranted and unsupported prior restraint on the freedom of
speech of Defendants. The Constitutional magnitude of harm to a defendant presented by a prior
restraint on the freedom of speech has been recognized under Maryland law. See City of
Frederick v. Randall Family, LLC, 154 Md. App. 543, 576, 841 A.2d 10, 30 (2004), The First
Amendment to the United States Constitution provides that “Congress shall make no law ...
abridging the freedom of speech.” Truthful commercial speech enjoys meaningful First
Amendment protection. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912,
1918, 56 L.Ed.2d 444 (1978).
The Court of Special Appeals further noted that the United States Supreme Court “‘has
interpreted these guarantees to afford special protection against orders that prohibit the
publication or broadcast of particular information or commentary – orders that impose a
‘previous' or ‘prior’ restraint on speech.’” City of Frederick v. Randall Family, LLC, 154 Md.
App. at 576, 841 A.2d 10 (quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556, 96 S.Ct.
2791, 2801, 49 L.Ed.2d 683 (1976)). As the Court of Special Appeals explained, because “‘prior
restraints on speech and publication are the most serious and the least tolerable infringement on
First Amendment rights,’ any prior restraint bears a heavy presumption against its constitutional
validity.” City of Frederick v. Randall Family, LLC, 154 Md. App. at 576, 841 A.2d at 30
(quoting Nebraska Press Ass'n v. Stuart, 427 U.S. at 556 and citing Organization for a Better
Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1 (1971)). Before a prior
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restraint can be deemed Constitutional, the test is whether “the magnitude of the danger the
restraint seeks to prevent, ‘discounted by its improbability, justifies such invasion of free speech
as is necessary to avoid the danger.’” City of Frederick v. Randall Family, LLC, 154 Md. App.
at 577, 841 A.2d at 30 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950) (Hand,
J.), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951)). Determining the actual truth or
falsity of a defendant’s speech is not appropriate on a motion for preliminary injunctive relief.
“A preliminary injunction is not a preliminary adjudication on the merits, but a device for
preserving the status quo and preventing the irreparable loss of rights before judgment.” Textile
Unlimited, Inc. v. A. BMH & Co., 240 F.3d 781, 786 (9th Cir.2001).
Against this clear harm to Defendants, Plaintiff asserts in conclusory fashion at pages 24- 25 of the Motion that J.G. Wentworth’s reputation, good will, and business interests will be
irreparably harmed. But Plaintiff offers no factual support or any citation to the record
supporting this weak claim. All of the facts showing Plaintiff’s conduct, including facts supplied
by independent nonparties, demonstrate that it is Plaintiff’s own record and conduct, and not any
particular website, that affects Plaintiff’s reputation. Indeed, issuing the unwarranted injunction
requested by Plaintiff will not make the facts of Plaintiff’s conduct disappear. Plaintiff utterly
failed to show that any alleged business losses and harm to Plaintiff’s business interests results
from a website as opposed to the reality of Plaintiff’s conduct.
Because Plaintiff has not shown that lesser injury would be done to Defendants by
granting the injunction than would result to Plaintiff by denying it, the Motion lacks merit and
should be denied for this additional, independent reason.
V. PLAINTIFF FAILED TO PROVE IRREPARABLE HARM
Plaintiff’s Motion nowhere demonstrates irreparable harm based on any alleged
statements by Defendants. To the contrary, Plaintiff appears to argue with the independent,
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nonparty sources that have documented Plaintiff’s conduct. Even assuming Plaintiff lost
business as a result of potential customers learning of Plaintiff’s record, such a circumstance
does not establish irreparable harm to Plaintiff. For this reason as well, the Motion fails as a
matter of law.
VI. THE PUBLIC INTEREST WOULD BE HARMED BY AN INJUNCTION
Robust debate on matters of public concern lies at the heart of the right of freedom of
speech recognized by the courts of Maryland. See, e.g., City of Frederick v. Randall Family,
LLC, 154 Md. App. at 576, 841 A.2d at 30. There is no public interest whatsoever in preventing
any member of the community from speaking out on matters of public concern and commenting
on facts reported by independent nonparty sources. The structured settlement market is a matter
of public concern. Plaintiff’s dubious history is a matter of public record. Issuing a prior
restraint on free speech with regard to this matter of public concern would harm the public
interest. Plaintiff certainly has not shown that granting the injunction will help the public interest
in any way. Accordingly, this factor also cuts decidedly against the injunction.
VII. THE REQUEST FOR EXPEDITED DISCOVERY SHOULD BE DENIED AS MOOT BECAUSE DISCOVERY HAS ALREADY BEGUN
Discovery has already begun and thus the motion for expedited discovery should be
denied as moot.
VIII. EVEN IF THIS COURT WERE TO ENJOIN DISPARAGEMENT, ANY SUCH ORDER SHOULD BE MUTUAL
Even if this Court were inclined to enjoin any disparagement during the pendency of this
litigation, any such order should be mutual – it would be inherently unfair to subject Defendants
to an order limiting their freedom of speech and ability to defend themselves against statements
by Plaintiff unless Plaintiff also was ordered not to disparage Defendants.