2

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.

3

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/

4

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.

5

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

6

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.

8

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.

15

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

16

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.

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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.