HARRELL, J.
Alexander Chaudhry ("Chaudhry"), Ali Farahpour ("Farahpour"), and Petitioner, Stephen Norman ("Norman"), owned equal shares in the Maryland-registered limited liability company, Sussex Title ("Sussex").
For reasons to be explained, we hold that, on the circumstances of this case, an
As attributed to Respondent Philip Robinson, the mortgage rescue scam asserted in the underlying litigation was described as involving real-estate professionals (principally the Metropolitan Money Store enterprise) that:
Without settlement companies like Sussex, who closed the transactions between lenders, sellers, and "straw buyers," the scam could not have succeeded.
On 18 June 2007, Respondents filed a "class action suit on behalf of several hundred homeowners,"
Norman posits, for purposes of his later defamation action, that Respondents provided to the press a copy of the complaint on the same day it was filed, but before it was filed. He infers this occurred because, on the filing day, a Baltimore Sun reporter telephoned Chaudhry and read verbatim to Chaudhry passages from the complaint. Norman highlights further that "[the Circuit Court for] Prince George's County . . . does not maintain an [online] case management system that would allow [the reporter] to monitor filings or obtain copies of filed documents [online]." Respondents do not contest this claim.
The day following filing of the proposed class action suit, 19 June 2007, The Baltimore Sun published an article about the scam lawsuit. In particular, the article explained that the complaint named at least six defendants, including Sussex. The article quoted Respondent Peter Holland as saying, without reference to any particular individual or company, "[w]e're
Less than a month later, on 12 July 2007, The Washington Post published an article regarding the lawsuit. It mentioned, in passing, that apparently Sussex was not answering its phones at its offices. It quoted Respondent Philip Robinson as stating that the defendants' "sole motive seemed to be to enrich their lavish lifestyles as opposed to saving the homes of the vulnerable homeowners from foreclosure."
On 24 July 2007, Respondents dismissed voluntarily their action in the Circuit Court for Prince George's County and refiled their claim in federal district court. According to the federal complaint, by July 2007, "it became apparent that the fraud . . . extended across three different jurisdictions [i.e., interstate]. . . ." The initial federal complaint asserted the same allegations as the previous State action, and added Chaudhry—a part owner of Sussex—as a named defendant. Norman was not sued or named in the initial federal complaint in any capacity.
The next day, The Baltimore Sun published an article about the federal litigation relating to the mortgage rescue scam. It included Respondent Scott Borison's statement that, "[a]s we kept investigating the case, it became clear that there were also federal charges to be asserted. . . . Metropolitan Money Store was out stealing the equity in people's homes and on top of that, getting it tax free." June Arney, Federal Court Gets Home-Equity Suit; Md. Case Grows into Class Action Seeking Recovery of Homes Swindled from Owners, BALT. SUN, 25 July 2007, at 3D. The article mentioned that Sussex was named as a defendant, and included a comment attributed to Chaudhry claiming that Sussex was a victim equally of Metropolitan Money Store's scam.
Respondents, on 21 January 2008, amended their initial filing, removing Sussex as a defendant, which had filed for bankruptcy protection. The first amended complaint also added Farahpour as a defendant, as well as Wilbur Ballesteros ("Ballesteros"),
In the vast majority of instances where the complaint refers to the "owners and employees of Sussex," it included a qualifying descriptor. For example, the complaint
On 29 September 2008, a federal trial judge dismissed the first amended complaint, but gave Respondents leave to refile. See Proctor v. Metro. Money Store Corp., 579 F.Supp.2d 724, 727 (D.Md.2008). In seeking dismissal, Chaudhry and Farahpour argued that "[Respondents] have failed to state a claim . . . because they have failed to make specific factual allegations as to how either of these individuals participated in the alleged scheme." Proctor, 579 F.Supp.2d at 742. In other words, by grouping together Chaudhry, Farahpour, and Ballesteros in their first amended complaint, Respondents suggested that "all [of the defendants] delivered one check, recorded one deed, instructed one buyer to sign a document, and received one fax." Proctor, 579 F.Supp.2d at 743 (internal quotation marks and citations omitted). The federal district court held that this repeated grouping "must be read as an allegation that one of the three [defendants] did each act" and, therefore, is deficient speculation under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Proctor, 579 F.Supp.2d at 744. Thus, in any subsequent complaint, Respondents were obliged to allege "what specifically each Defendant did (not what the group did) to fulfill his role in the scheme." Id.
Respondents filed a more specific, second amended complaint on 14 November 2008, alleging that "Mr. Ballesteros defrauded [homeowner clients], and that Mr. Chaudhry and Mr. Farahpour failed to supervise Mr. Ballesteros, thereby facilitating the fraud." Respondents removed Ballesteros as a defendant, however, because, like Sussex, Ballesteros had sought the protective harbor of bankruptcy. Although this version of the complaint, again, did not name Norman as a defendant, it identified him by name in certain averments. In this regard, the second amended complaint alleged that:
Sometime in the Fall of 2007, after filing their initial complaint in the federal district court, Respondents created a website, http://www.metromoneystore.com, on which they eventually posted links to the three iterations of the federal complaint. Respondent Robinson claims that the website was intended to "give notice to the class about the lawsuit." Indeed, the federal district judge "expressly permitted the use of the internet to communicate with class action litigants." Norman, 192 Md.App. at 427, 994 A.2d at 1032. Nonetheless, Norman asserts that these publications were "incomplete," at least in part, because they were redacted heavily and "did not provide the reader with the facts. . . or the various exhibits which strongly contradicted the allegations. . . ."
Norman, 192 Md.App. at 416-419, 994 A.2d at 1026-27. In other words, the Circuit Court decided that Norman waived his defamation claim against Respondent Robinson, while preserving his claim against Respondents Holland and Borison.
In a reported opinion, the Court of Special Appeals addressed initially the issue of standing. See Norman, 192 Md.App. at 420, 994 A.2d at 1027. Norman argued that he had standing because Respondents made defamatory, extrajudicial comments to the press, which were understood by persons who had dealt with Sussex to be aimed at him. See Norman, 192 Md.App. at 420, 994 A.2d at 1028. Moreover, as they filed and re-filed their complaint, Respondents not only alluded to him generally, but eventually named him outright in averments in the second amended complaint. See id.
The intermediate appellate court organized the allegedly defamatory statements into two categories—those that named Norman directly and those that may have "referred to him by virtue of his position with Sussex." Norman, 192 Md.App. at 420, 994 A.2d at 1028. Regarding the former, they were held not to be defamatory, but merely a "description of Norman's business relations with the company he owned [in part]." Norman, 192 Md.App. at 421-22, 994 A.2d at 1028-29. Regarding the latter, they targeted the company, Sussex, not Norman. "Where [a] company holds a right of action in tort," our appellate brethren continued, "th[e] right does not extend to the company's owners, just as a cause of action that belongs to an owner individually [does] not extend to the company." Norman, 192 Md.App. at 422, 994 A.2d at 1029. Moreover, the appellate panel observed that the tort allegations specified that "Sussex owners and employees" referred to Chaudhry, Farahpour, and Ballesteros—not Norman; therefore, Norman lacked standing to assert the claims he advanced.
Assuming, for the sake of argument, that Norman had standing, the Court of Special Appeals concluded that the "allegedly defamatory statements are [nonetheless] protected by absolute privilege." Norman, 192 Md.App. at 423, 994 A.2d at 1030. Regarding the allegations in the complaints (as opposed to the press "sound bites"), the intermediate appellate court reiterated that the "`[a]bsolute judicial privilege applies to statements contained in pleadings, affidavits, or other documents directly related to the case.'" Id. (quoting Offen v. Brenner, 402 Md. 191, 200, 935 A.2d 719, 724 (2007)) (quoting Keys v. Chrysler Credit Corp., 303 Md. 397, 403-04, 494 A.2d 200, 203 (1985)) (internal quotation marks omitted). "To date, Maryland courts have not held that redistribution or dissemination of [such] pleadings will void privileged status. . . ." Norman, 192 Md.App. at 427, 994 A.2d at 1032. To do otherwise would suggest that courtroom proceedings and pleadings, once filed, are no longer "open to the public," Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 662, 755 A.2d 1130, 1135 (2000), or "public property." Rosenberg v. Helinski, 328 Md. 664, 669, 616 A.2d 866, 873 (1992). The panel of the intermediate appellate court distinguished the principal cases on which Norman relied
Regarding Respondents' verbal comments to the press, the Court of Special Appeals analyzed Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54 (1962). Fearing a
The intermediate appellate court observed that Respondents "did not make any comments to the newspaper that were both slanderous per se and directly identified Norman." Norman, 192 Md.App. at 425, 994 A.2d at 1030. Moreover, in contrast to Kennedy, Respondents filed pleadings with the court. See id. Considered together, Respondents "were not attempting to set up a slanderous defense to the allegation of rape or some other crime in the press [like in Kennedy]." Norman, 192 Md.App. at 425, 994 A.2d at 1031.
The Court of Special Appeals affirmed the judgment of the Circuit Court. We granted Norman's petition for writ of certiorari, Norman v. Borison, 415 Md. 337, 1 A.3d 467 (2010), to consider whether:
The crux of this case is the doctrine of absolute privilege. Accordingly, we shall describe our understanding of its contours before applying the law to the present, assumed factual circumstances. There are at least three situations implicating an absolute privilege in the context of this case.
Although an understated principle in our caselaw, the application of an absolute privilege differs depending on whether the putative tortfeasor is a witness/ party/ judge, or an attorney of record in the case. For witnesses, parties, and judges, we employ the "English" rule, which provides that the putative tortfeasor enjoys absolute immunity from civil liability, even if the statement is wholly unrelated to the underlying proceeding. See Keys, 303 Md. at 404, 494 A.2d at 203 ("We [follow] the minority or `English' rule which afford[s] the absolute privilege to witnesses and parties without the necessity of demonstrating the relevance of the statement to the pending litigation." (citing Korb v. Kowaleviocz, 285 Md. 699, 402 A.2d 897 (1979) (emphasis added))); Adams v. Peck, 43 Md.App. 168, 173, 403 A.2d 840, 843 (1979) ("[N]ote that the English decisions
For attorneys whose appearances are entered in a case, however, we follow the majority American rule and require that the defamatory statement have some rational relation to the matter at bar before unfurling the umbrella of absolute privilege. See Korb, 285 Md. at 702, 402 A.2d at 898 ("It was perfectly competent for this court . . . to follow and adopt the. . . American decisions in regard to the privilege of the advocate, and to follow and adopt the rule of the English courts as regards the privilege of the witness." (quoting Hunckel v. Voneiff, 69 Md. 179, 198-99, 14 A. 500, 505 (1888)));
In any case, the putative tortfeasor is protected "even if his [or her] purpose or motive was malicious, he [or she] knew that the statement was false, or his [or her] conduct was otherwise unreasonable." Id. We give the privilege a "broad and comprehensive" interpretation, so as to "foster the `free and unfettered administration of justice.'" Keys, 303 Md. at 404, 494 A.2d at 203. "The ultimate purpose of the judicial process is to determine the truth." Adams, 288 Md. at 5, 415 A.2d at 294.
Likewise, a decision-maker/adjudicator, witness, or party in a quasi-judicial proceeding who makes a defamatory statement in the proceeding is shielded by the privilege, if the proceeding satisfies the two part test of Gersh v. Ambrose, 291 Md. 188, 434 A.2d 547 (1981). To don also
We held that the absolute privilege applies only to certain types of administrative proceedings. In sorting out which types of proceedings merit this protection, we probe: "(1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements." Gersh, 291 Md. at 197, 434 A.2d at 552. In other words, we examine the significance of "the public interest sought to be advanced" and the protective trial-like attributes of the proceeding. Gersh, 291 Md. at 196, 434 A.2d at 551; see id. (stating that the two factors balance the public's interest in full disclosure with the "harm of subjecting the individual to possible legal injury without remedy"). Because the administrative hearing in Gersh—before the Baltimore City Community Relations Commission—neither advanced a sufficiently compelling public interest nor possessed suitable procedural safeguards, we rejected extending the absolute privilege. See id.; see also McDermott v. Hughley, 317 Md. 12, 26, 561 A.2d 1038, 1045 (1989) (holding that the absolute privilege did not apply to a psychiatrist who, after meeting with a park police officer, issued a defamatory report because there were "insufficient procedural safeguards" during the meeting).
Some forty-nine years ago, we considered an out-of-court statement in Kennedy, where an attorney—fearing a possible lynch mob targeting his client— reached out to the press to defend his client from the perceived wrath of the mob. See Kennedy, 229 Md. at 94, 182 A.2d at 55. We noted the distinction that "absolute immunity extends . . . [to] defamatory statements uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case." Kennedy, 229 Md. at 97, 182 A.2d at 57 (emphasis added). Owing in part to the breadth of this language, we extended the privilege in Adams to defamatory statements made prior to (and, therefore, outside of) a proceeding, reasoning that a qualifying statement could be "directly related to the pending litigation and [published] during the course of the judicial proceeding." Adams, 288 Md. at 8, 415 A.2d at 295 (emphasis added). Adams (published a year before Gersh) has spawned sophisticated progeny on the subject of out-of-court defamation, which deserve further comment.
These extrinsic statements occur commonly in three categories: (1) statements made with the direct purpose or effect of producing a judicial or quasi-judicial proceeding, e.g., a police brutality complaint, (2) statements "prepared for possible use in connection with a pending judicial proceeding," Adams, 288 Md. at 4, 415 A.2d at 294 (emphasis added), but which remain unfiled at the time of the alleged injury, and (3) statements that are not designed necessarily to produce a proceeding
We extend the absolute privilege to these three categories of statements for the traditional reason—to encourage the free divulgence of information in pursuit of justice. More specifically, we apply the privilege because "[t]he evaluation and investigation of facts and opinions for the purpose of determining what, if anything, is to be raised or used in pending litigation is as integral a part of the search for truth. . . as is the presentation of such facts and opinions during the course of the trial. . . ." Adams, 288 Md. at 8, 415 A.2d at 295; see also Offen, 402 Md. at 202, 935 A.2d at 726 ("[T]he basis for extending absolute immunity [is] to prevent unduly hindering important speech, and to ensure that otherwise actionable conduct thus is protected where the accused acts in furtherance of a recognized socially important interest.") (internal quotation marks and citation omitted).
As to the first category, we consider whether the proceeding, which results from the statement, serves an important public interest and possess adequate procedural safeguards. As examples, in Miner v. Novotny, 304 Md. 164, 174-77, 498 A.2d 269, 273-75 (1985), and Imperial v. Drapeau, 351 Md. 38, 50-51, 716 A.2d 244, 250-51 (1998), we held that absolute privilege protected citizens who filed complaints with governmental entities against a deputy sheriff and an emergency medical technician, respectively.
The second category involves statements prepared for possible use in a judicial or quasi-judicial proceeding, "regardless of whether the [statement] has been filed." Adams, 288 Md. at 8, 415 A.2d at 295. For instance, in Adams, a husband and wife entered into a separation agreement, whereby the wife would receive physical and legal custody of the children and the father visitation rights. See Adams, 288 Md. at 2, 415 A.2d at 292. Later, the wife began to doubt the propriety of the father's visitation. See id. She sent her children to see a psychiatrist, who concluded ultimately that "the father had abused one of the children, and that he was `an ill man and in definite need of psychiatric treatment.'" Adams, 288 Md. at 2, 415 A.2d at 292-93. The wife sought modification of the visitation rights on that basis. See Adams, 288 Md. at 2, 415 A.2d at 293. The father alleged that the psychiatrist defamed him. See Adams, 288 Md. at 2-3, 415 A.2d at 293.
Concluding that an absolute privilege protected the statements by the psychiatrist, the Adams Court reasoned that his
Many statements are not designed to be filed in a court action, but rather are simple communications by or between individuals connected to some pending or ongoing proceeding—hence, a third category. A canvass of relevant caselaw reveals that, for the most part, Maryland courts attempt to preserve the distinction of what must be established for the privilege to apply—regarding "relevance"—between witness, et al., and attorneys of record.
In Odyniec v. Schneider, 322 Md. 520, 588 A.2d 786 (1991), a former patient filed a medical malpractice claim before an arbitration panel. Before the proceeding, she underwent a physical examination, during which the examining doctor—"who was expected to later present his expert testimony before the arbitration panel"—"told the patient that her previous doctor[, in fact] had performed unnecessary medical procedures on her." Offen, 402 Md. at 203, 935 A.2d 719, 726 (citing Odyniec, 322 Md. at 523-24, 588 A.2d at 787-88). After observing the public purpose and the procedural safeguards embedded in the arbitration proceeding, we concluded that the examining doctor made his statement (1) while "conducting a medical examination of [the patient-plaintiff]" and (2) "to [the patient], a party in the then-pending arbitration proceeding. . . ." Odyniec, 322 Md. at 534, 588 A.2d at 793 (emphasis added). Based on these facts, we held that the doctor, a potential witness, made his statement during "the course of his participation in th[e] pending [arbitration] proceeding"; consequently, his "verbal statement [wa]s accorded the same absolute privilege as if it had been made by a witness during the arbitration hearing itself." Id.; see Adams, 288 Md. at 8, 415 A.2d at 295 (extending the absolute privilege to a statement because it was published "during the course of the judicial proceeding"). That the "defamatory statement may have been gratuitous, unsolicited, and in part irrelevant to the purpose for which [the doctor] was employed" did not defeat recognition of the privilege. Odyniec, 322 Md. at 534, 588 A.2d at 793.
In Sodergren v. Johns Hopkins University Applied Physics Laboratory., 138 Md.App. 686, 697, 773 A.2d 592, 603 (2001), the Court of Special Appeals concluded that the absolute privilege protected an employer who sent apology letters, pursuant to a settlement agreement in a pending suit, to a putative victim of sexual harassment and false plagiarism accusations. After a prodigious discussion of Maryland and foreign caselaw, the intermediate appellate court agreed that "settlement is a part of a judicial proceeding. . . ." Sodergren, 138 Md.App. at 701, 773 A.2d at 601. "[T]here is a sufficient nexus between a judicial proceeding and the settlement of
The foregoing analyses teach us to apply an absolute privilege to out-of-court statements, made by witnesses, parties, or judges, when (1) the contemplated or ongoing proceeding fulfills Gersh,
If these factors are present, protection of the communication serves the ultimate purpose of the privilege—to loosen the otherwise secure floodgates of information required for the successful resolution of a judicial or quasi-judicial proceeding. The proceeding, however, must be "actually contemplated in good faith and under serious consideration. . . . The bare possibility that [a] proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered." RESTATEMENT (SECOND) OF TORTS § 588 cmt. e. (2006); see also Kennedy, 229 Md. at 98, 182 A.2d at 58 ("[T]he extension of this absolute privilege to statements not made in the judicial proceeding itself is limited . . . by
With respect to attorneys of record in a judicial or quasi-judicial proceeding, Maryland caselaw adds the requirement of relevance of the statement to the proceeding before an absolute privilege may apply. In Woodruff v. Trepel, 125 Md.App. 381, 725 A.2d 612 (1999), an attorney in a custody dispute sent a letter to opposing counsel, summarizing a recent conversation. In the letter, the attorney referred to incourt testimony, which alleged that the opposing party had abused his child physically and verbally. See Woodruff, 125 Md. App. at 388, 725 A.2d at 616. The Court of Special Appeals held that absolute privilege immunized the attorney from culpability for defamation for this statement because his letter was "rationally related to and reference[d] the underlying [child custody] litigation, in addition to a possible future litigation." Woodruff, 125 Md.App. at 394, 725 A.2d at 619; see also Woodruff, 125 Md.App. at 393, 725 A.2d at 618 (quoting Maulsby v. Reifsnider, 69 Md. 143, 162, 14 A. 505, 510 (1888), for the principle that "`if counsel in the trial of a cause maliciously slanders a party . . . in regard to a matter that has no reference or relation to, or connection with, the case before the Court, he is and ought to be answerable in an action by the party injured'") (emphasis added);
These cases indicate that Maryland courts extend an absolute privilege to an attorney of record, so long as (1) the contemplated or ongoing proceeding meets the Gersh test, (2) the context of the statement evinces that the statement was made "during the course" of the proceeding, and (3) the statement has some rational, articulable relevance or responsiveness to the proceeding.
Norman avers that Respondents provided the press with a copy of the complaint before it was filed in state court and, thus made it public "before its time."
In the assumptive latter scenario, the complaint appears to be a statement instigating an investigation and/or proceeding. If so, because the complaint was not communicated to an authorized or germane investigating body, its delivery had neither the necessary investigatory design nor possible effect in order to qualify for refuge in the first category (i.e., statements producing a proceeding), as delineated supra. Considered under the second category, the complaint can be viewed as a statement prepared for a pending proceeding. Most complaints are meant to be filed in a court. Militating against this characterization, however, is the fact that Respondents delivered the draft complaint to the
Considered in its best light, however, the complaint is simply a third-party communication, made extrinsic to an imminent proceeding. As discussed supra, we evaluate whether the underlying proceeding satisfies the prongs of Gersh, which it does manifestly. Importantly, we analyze also whether the context of the challenged statements supports the conclusion that they were made during the course of the proceeding. Respondents, at worst, published their allegedly defamatory statements in a draft version of their ultimate pleading, which they handed-over to the press on the same day the pleading was filed. By republishing or reporting on those erstwhile pleadings, the press could be seen as a tool assisting in the notification to potential class members of the contemplated proceedings. Thus, we conclude that Respondents issued these statements during the course of the putative class action.
By the time Respondents published the initial federal complaint on the internet in the Fall of 2007, they had filed it, thereby making it a public document. Once a document is made public, Maryland law does not limit who, where, or the extent to which one may view that document. Thus, publication of the by-now public federal complaint does not bar application of the absolute privilege. There is, too, the additional fact that republication of the complaints served the previously noted and judicially-cognizable purpose— the notification of potential class members of ongoing litigation, in which they may have a stake. Moreover, we conclude that the complaints were not redacted so extensively as to render them fundamentally distinct from the public documents that were filed with the federal district court. It appears Respondents omitted mostly exhibits, rather than substantive averments, from their internet republication.
Respondents provided the press not only a copy of their State complaint, but also with verbal "sound bites" to be included presumably in any forthcoming news articles. As mentioned supra, Norman waived his defamation claim against Respondent Robinson, but preserved it with respect to Respondents Holland and Borison. Respondent Holland was quoted purportedly in a 19 June 2007 Baltimore Sun article as saying, "[w]e're talking about bad people. . . . A mortgage foreclosure rescue scam is worse than predatory lending. They find out how much equity is in the house, and they come at you like vultures." June Arney, Class Action Alleges Home Equity Theft; Foreclosure-Rescue Firms Object of Suit, BALT. SUN, 19 June 2007, at 1E. Respondent Borison was quoted purportedly in a 25 June 2007 Baltimore Sun article as stating, "[a]s we kept investigating the case, it became clear that there were also federal charges to be asserted. . . . Metropolitan Money Store was out stealing the equity in people's homes and on top of that, getting it tax free." Federal Court Gets Home-Equity Suit, at 3D.
We conclude that an absolute privilege protects Respondents Holland's and Borison's statements. The contemplated proceeding in the courts meet the Gersh test. After reviewing the news articles in their entirety, it appears Respondents made the statements while promoting public awareness of their proposed class action claim and, thus, while participating in the course of the proceeding. The two news articles (published the day after filing the initial State complaint and the initial federal complaint, respectively) provided readers (i.e., possible class members) with details about how the mortgage rescue scam worked, when it took place, who was involved potentially, and who was targeted likely. We are not prepared to say that plaintiffs are prohibited from promoting
Because Respondents were attorneys of record in the case, we must determine also whether their statements were relevant or had some relation to the underlying proceeding. Respondent Holland's suggestion that "[w]e're talking about bad people" comes close to being irrelevant due to its breadth and generality. His other remark, however, makes reference to the mortgage rescue scam that was the subject of the suit, and, in these particular circumstances, we are unable to ascertain or state with confidence on this record what prompted his comment, let alone what prefaced or followed it.
We hold that an absolute privilege applies to Respondents' challenged statements. As a result of our holding, we need not reach the question of whether Respondents' statements in their pleadings and press sound bites injured Norman sufficiently to sustain his defamation claim.
Offen v. Brenner, 402 Md. 191, 198-99, 935 A.2d 719, 723-24 (2007) (internal quotation marks and citations omitted).
Hunckel v. Voneiff, 69 Md. 179, 198-99, 14 A. 500, 505 (1888).
Maulsby v. Reifsnider, 69 Md. 143, 162, 14 A. 505, 510 (1888); see also Kennedy, 229 Md. at 98, 182 A.2d at 58 ("[T]he extension of this absolute privilege to statements not made in the judicial proceeding itself is limited . . . by the comments on the rule of the Restatement itself. . . ."); RESTATEMENT (SECOND) OF TORTS § 586 cmt. e. (2006) ("As to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the [attorney's] communication has some relation to a proceeding that is contemplated in good faith and under serious consideration.").
Moreover, nothing in Rule 2-231 indicates that what the trial court decides—with respect to the provision of notice—should be taken as a ceiling, i.e., the maximum effort plaintiffs must exert to notify potential class members. To the contrary, the Rule leaves open the possibility that plaintiffs may act preemptively in identifying and notifying others of their possible claims. In other words, while the Rule may not require "notice to class members at the commencement of the suit," MODERN MARYLAND CIVIL PROCEDURE § 4.9(c)(2)(a), nor does it prevent notice from being provided at that time.
Md. Rule 2-231 is derived from Federal Rule of Civil Procedure 23. As such, our interpretation of the former may be guided, at least in part, by the history and development of the latter. Federal courts have interpreted their rule as encouraging early notification. See Anne Arundel County v. Cambridge Commons, 167 Md.App. 219, 233, 892 A.2d 593, 596 (2005) ("Because individuals are included in the class, and must then opt out, Fed. R.Civ.P. 23(c)(2) indicates that class members. . . be notified early enough to allow voluntary exclusion prior to a judgment in the suit and early enough to allow for effective appearance of counsel." (citing Peritz v. Liberty Loan Corp., 523 F.2d 349, 354 (7th Cir. 1975))). With respect to the notification process, the federal rule does not require individual identification of all potential class members, as a "requisite in class actions." Weaver v. Prince George's County, 34 Md.App. 189, 200, 366 A.2d 1048, 1055 (1976) (citing Hansberry v. Lee, 311 U.S. 32, 40-41, 61 S.Ct. 115, 117-18, 85 L.Ed. 22, 26 (1940)). Presumably, therefore, notification in a newspaper, which cannot guarantee individual notification, may be an appropriate tactic in certain instances.
Respondents' publication of their State complaint may be seen legitimately as helping notify potential class members, a step in the administration of justice; thus, their publication was connected sufficiently to the contemplated proceeding to be made "during the course" of that proceeding.
