2021 COA 144
Colo. Ct. App.2021Background
- Attorneys (Killmer, Lane & Newman, Mari Newman, and Towards Justice) filed a federal class action in May 2018 on behalf of a former nail technician against BKP/Ella Bliss alleging wage-and-hour violations.
- At the time of filing the federal complaint the attorneys held a press conference and issued a press release repeating and summarizing allegations (e.g., unpaid janitorial work, withheld tips, refusal to pay overtime) and making broader characterizations (e.g., "too cheap," "financially exploiting women").
- About a year later the employer sued the attorneys in state court for defamation (per se/per quod) and intentional interference with contractual relations based on those public statements.
- Defendants moved to dismiss under C.R.C.P. 12(b)(5), asserting the litigation privilege, Noerr–Pennington petitioning immunity, and First Amendment opinion protection; the trial court granted dismissal in part on those grounds.
- On appeal the Colorado Court of Appeals (Division A) affirmed that several statements were nonactionable opinions but held that other statements (specific factual allegations about unpaid janitorial work, selective pay, etc.) were not protected by Noerr–Pennington or the litigation privilege and reversed the dismissal as to those statements; the case was remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the litigation privilege protects post‑filing press statements/publicity about a pending class action | Newman et al. are not immune for press/public statements; privilege meant for courtroom‑related communications only | Press statements promoting a class action are related to litigation and thus privileged (or fall within narrow class‑action exception) | Privilege does not apply here: complaint showed class members were easily ascertainable, so broad public dissemination was unnecessary; statements not protected |
| Whether Noerr–Pennington petitioning immunity bars the defamation claim | Noerr does not shield defamatory statements aimed at the public; First Amendment does not permit libel | Publicizing the suit to recruit class members is petitioning activity incidental to litigation and immune | Noerr–Pennington does not bar these defamation claims: statements merely publicized the suit and did not advance government decision‑making; Supreme Court precedent forbids immunity for libel |
| Whether contested statements are protected opinion (First Amendment) | Employer: terms like "too cheap" and "exploiting" imply provable false facts | Defendants: rhetoric and hyperbole are nonactionable opinion | Affirmed as to several statements: phrases like "too cheap," "financially exploiting women," and related rhetoric are opinion/hyperbole and not provable false facts |
| Whether dismissal was proper as to intentional interference and whether appellate court should grant summary judgment on truth defense | Employer: interference claim rests on actionable defamation; factual disputes exist | Defendants: interference allegations are conclusory; summary judgment warranted because statements are true | Court reversed dismissal and remanded for further proceedings; declined to decide summary judgment—left factual issues and truth defense to trial court |
Key Cases Cited
- Club Valencia Homeowners Ass'n v. Valencia Assocs., 712 P.2d 1024 (Colo. App. 1985) (adopts Restatement test for litigation privilege)
- Buckhannon v. U.S. West Commc'ns, Inc., 928 P.2d 1331 (Colo. App. 1996) (litigation privilege can bar non‑defamation claims arising from same conduct)
- Merrick v. Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712 (Colo. App. 2001) (absolute privilege extends only to functions essential to judicial decision‑making; prelitigation communications must be in good faith)
- Begley II (Belinda A. Begley & Robert K. Hirsch Revocable Tr. v. Ireson), 490 P.3d 963 (Colo. App. 2020) (litigation privilege can shield nondefamatory conduct; distinguishes prelitigation vs. post‑filing statements)
- Green Acres Trust v. London, 688 P.2d 617 (Ariz. 1984) (press publications lack sufficient relation to judicial proceedings for privilege)
- Simpson Strong‑Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007) (class‑action solicitation by broad publication can be privileged if there is no feasible way to target class members)
- Norman v. Borison, 17 A.3d 697 (Md. 2011) (allowing public promotion of class actions can be privileged where it reasonably reaches potential class members and is not a subterfuge)
- Helena Chem. Co. v. Uribe, 281 P.3d 237 (N.M. 2012) (press statements repeating complaint allegations in a mass‑tort/class context may be privileged as furthering recruitment of claimants)
- Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (U.S. 1961) (right to petition can immunize concerted efforts to influence government action)
- United Mine Workers v. Pennington, 381 U.S. 657 (U.S. 1965) (extends Noerr to efforts to influence administrative agencies and courts)
- McDonald v. Smith, 472 U.S. 479 (U.S. 1985) (right to petition does not create a license to commit libel)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (distinguishes opinion from provable false statements of fact in defamation law)
- Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994) (two‑part test for whether a statement is sufficiently factual and would be perceived as fact)