Mediaboss Marketing

Originally Published: April 15, 2014 10:32 AMModified: April 15, 2014 2:56 PM

Executives at Novi-based Lotus Bancorp Inc. will not be able to claim a First Amendment right to use racist remarks about customers and their banks board members in a lawsuit in Oakland County Circuit Court.

Judge Denise Langford Morris has denied a motion by the defendants' attorneys to add the claim of a First Amendment privilege in their defense of a lawsuit brought by two bank customers who alleged that racist behavior by the executives violated the law and led, at least in part, to troubles they had in a dispute over a commercial loan.

Wednesday, the judge will hear two motions in the case, one by defense attorneys to dismiss the suit, and the other by the plaintiffs' attorneys to grant a partial summary judgment.

An attorney for Lotus, Michelle Wezner of the Royal Oak-based law firm of Howard & Howard Attorneys PLLC, had argued last Wednesday that two executives at the bank should be allowed to claim a First Amendment right to send emails describing Asian Indians as chimps and saying they are better dead than alive.

Wezner said the emails werent proof that bank President Neal Searle and Executive Vice President Richard Bauer were unfair in their treatment of customers but were, in part, emotional rantings over frustrations with their Indian board of directors that werent meant to be seen by the general public.

I can be the biggest jerk in the world and say awful, horrible things, but I cant act on it, said Wezner. The emails, she said, indicates they may be jerks, but they didnt act on it. The plaintiffs were treated really well on their loan. All we have is some really awful emails.

Morris denied the motion, saying in part:

The Court, having reviewed the applicable law and being fully advised in the premises, finds that the proposed amendment would be futile because the statements complained of are not entitled to protection under the First Amendment.

In addition, the Court finds that this request, made more than one year after the complaint was filed and after the close of discovery, constitutes an inexcusable delay that would be prejudicial to plaintiffs. It is hereby ordered that defendants motion for leave to file first amended affirmative and special defenses to add (a) First Amendment defense is denied.

Read more:
Lotus bank execs' racist emails aren't protected by 1st Amendment, judge rules