First Mariner Bank v. The Resolution Law Group, P.C.
Filing
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MEMORANDUM AND ORDER denying 26 Request for show cause order. Signed by Judge Marvin J. Garbis on 8/20/12. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FIRST MARINER BANK
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Plaintiff
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vs.
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THE RESOLUTION LAW GROUP, P.C.
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Defendant
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CIVIL ACTION NO. MJG-12-1133
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MEMORANDUM AND ORDER Re: Show Cause Request
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The Court has before it the Request for Show Cause Order
[Document 26] and the materials submitted relating thereto. The
Court finds that a formal hearing is unnecessary.
A.
Background
In the Order Modifying Temporary Restraining Order
[Document 18] ("the Order") provided:
1.
Defendant, its affiliates, employees,
agents, representatives, and any and
all other persons acting in concert
with them, shall not disseminate any
materials to past, present, or
potential customers of Plaintiff First
Mariner Bank that state or suggest the
Bank is involved in settlement
discussions with any federal or state
governments with respect to its lending
or related bank practices or may have
committed any violations relating to
TARP funds.
2.
Prior to disseminating any further
advertising material to past, present,
or potential customers of Plaintiff
First Mariner Bank, Defendant shall:
a.
Provide counsel for Plaintiff with
a copy of the advertising material
at least ten business days prior
to its dissemination, and
b.
Should Plaintiff file a motion
herein seeking relief relating to
such materials prior to the end of
the said ten business days, defer
dissemination pending a ruling on
said motion.
Plaintiff has presented the affidavits of two employees of
Plaintiff [Documents 26-1, 30-1] stating that each was a
mortgage customer of Plaintiff and was contacted by a
telemarketer for Defendant, Resolution Law Group ("RLG"),
soliciting clients to join a lawsuit against various banks,
including Plaintiff.
They each identified their lender as Wells
Fargo and stated that the loan had originated with First Mariner
Bank.
The affidavits do not state that the telemarketer orally
referred to First Mariner Bank by name but that he provided a
copy of a website that described the lawsuit in detail and one
of them was provided a copy of the lawsuit.
The lawsuit copy
included First Mariner Bank as a defendant and also provided
information about the claims RLG was making against various
banks, including First Mariner Bank.
First Mariner Bank takes the position that the described
actions by RLG violate the Order and seek to have the Court
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require RLG to show cause why it should not be held in contempt.
RLG contends (1) that the Order is not sufficiently definite to
be enforceable through the contempt powers, and, alternatively,
that the alleged actions did not violate the Order.
B.
Enforceability
The Court does not agree with RLG regarding the
enforceability of the Order.
The Order was issued by agreement of the parties – without
objection by either side as to its alleged indefiniteness.
Of
course, the fact that the parties agreed with the Order does not
eliminate differences of opinion as to its interpretation.
Moreover, in the context of contempt proceedings, the Court
must consider the extent to which a violation of the Order would
result from a good faith dispute as to the meaning of the terms
or terms that were violated.
C.
The Incidents at Issue
1.
Scope of Order
The Court rejects, as patently unreasonable, any contention
that the Order pertains to any advertisement at all that RLG may
disseminate to any target group that is received by a recipient
who is a "past, present, or potential customer[] of Plaintiff
First Mariner Bank."
Indeed, to accept such an interpretation
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would mean that if RLG should advertise to obtain clients1 for a
lawsuit against a pharmaceutical manufacturer of an alleged bad
drug, it would violate the Order because some of the members of
the target group happened to be "past, present, or potential
customers of Plaintiff First Mariner Bank."
The context of the Order, including the statements made
therein prior to the above-quoted operative terms, renders the
most reasonable interpretation of the scope of the Order as
including advertisements to a selected target group of "past,
present, or potential customers of Plaintiff First Mariner
Bank."
2.
The Actions In Question
The Court does not find the allegations made in the
affidavit sufficient to require RLG to show cause why it should
not be held in contempt for violation of the Order.
First, RLG has not exhibited a disregard for the Order.
RLG has, in fact, complied with the Order with regard to a
proposed advertisement [Document 34-2].
Second, it appears that the telemarketing activity was
targeted at Wells Fargo debtors.
It appears that the target
group of Wells Fargo debtors include some First Mariner Bank
The Court is not here determining, or even considering, the
propriety of RLG's solicitation of clients.
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borrowers whose loans were "transferred" to Wells Fargo.
Nevertheless, absent any reason to believe that the "real"
target group was that of First Mariner Bank customers, the Court
does not find the solicitation within the scope of the Order.
Third, insofar as now appears, the specific reference to
First Mariner Bank by name is within a copy of "the Lawsuit"
(presumably the Complaint) in which First Mariner Bank is one of
several defendants.
There could certainly be significant issues
raised regarding a prohibition in the instant case against a
parties' posting an unsealed court filing on its website or
providing a copy of same to an individual.
The Court notes, but is not now addressing, RLG's
contention that the alleged telemarketing activity did not
constitute "disseminating any further advertising material."
Nor will the Court issue an "advisory opinion" stating which
activities by a telemarketer would constitute "disseminating
. . . advertising material" and which would not.
D.
Conclusion
For the foregoing reasons:
1.
The Request for Show Cause Order [Document 26] is
DENIED.
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2.
This action is without prejudice to the right of
Plaintiff to seek a show cause order should
future actions by RLG warrant.
SO ORDERED, on Monday, August 20, 2012.
/s/__________
Marvin J. Garbis
United States District Judge
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