Killmer, Lane & Newman, LLP Mari Newman and Towards Justice v. BKP, Inc. Ella Bliss Beauty Bar LLC Ella, 2023 CO 47

Background

In 2018 two law firms filed a federal class action on behalf of a former employee and similarly situated service technicians against BKP/Ella Bliss, alleging unpaid janitorial and other work, unpaid overtime, withheld tips, and other pay violations.
The same day the complaint was filed, attorney Mari Newman held a press conference and issued a press release summarizing the complaint; local media repeated the statements.
The employer sued the attorneys one year later for defamation and interference; attorneys moved to dismiss asserting the absolute litigation privilege.
The district court dismissed the employer’s complaint without addressing the privilege; a division of the Colorado Court of Appeals reversed, adopting an "ascertainability" exception (because the complaint alleged class members could be identified from employer records).
Colorado Supreme Court granted certiorari, rejected the ascertainability exception, and held the press statements that repeated or summarized the complaint were absolutely privileged under the common-law litigation privilege (Section 586).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether litigation privilege is defeated when class identities are alleged to be ascertainable	Allegation that class is "easily ascertainable" removes any need to contact public; privilege inapplicable	Ascertainability allegation does not eliminate privilege; discovery (records) not yet available and early outreach serves litigation objectives	Court rejects an "ascertainability" exception; privilege not conditioned on ascertainability
Whether press statements that repeat/summarize a class complaint are privileged	Statements were defamatory and actionable despite relating to litigation	Statements merely repeated/summarized complaint and notified potential class members/witnesses, furthering litigation	Statements that repeat, summarize, or paraphrase complaint are absolutely privileged
Whether pre‑filing or early press outreach by counsel can be protected	Pre‑litigation publicity to general public should not be privileged	Pre‑litigation statements can be privileged if related to contemplated litigation and further its objectives	Court applies Restatement §586 framework; pre‑filing/early outreach can be privileged when related and in furtherance of litigation
Whether press recipients (reporters/public) defeat privilege (Green Acres issue)	Because recipient (reporter/public) had no direct relation to proposed class action, privilege should not apply	The press reaches the public and potential class members; dissemination furthers litigation	Court rejects Green Acres minority view; privilege extends to counsel communications via press that notify potential class members/witnesses

Key Cases Cited

Club Valencia Homeowners Ass'n v. Valencia Assocs., 712 P.2d 1024 (Colo. App. 1985) (adopts Restatement §586 formulation and explains pertinency and purpose of privilege)
BancPass, Inc. v. Highway Toll Admin., L.L.C., 863 F.3d 391 (5th Cir. 2017) (majority of jurisdictions rely on Restatement formulation of litigation privilege)
BP Am. Prod. Co. v. Patterson, 263 P.3d 103 (Colo. 2011) (discusses ascertainability requirement in class‑action context)
Norman v. Borison, 17 A.3d 697 (Md. 2011) (recognizes privilege for attorney republication/explanation of class pleadings to notify potential class members)
Helena Chem. Co. v. Uribe, 281 P.3d 237 (N.M. 2012) (permits pre‑litigation press statements by counsel in class/mass‑tort contexts when related and contemplated in good faith)
Simpson Strong‑Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007) (privilege applies to press/internet solicitations that notify potential parties or witnesses)
Green Acres Trust v. London, 688 P.2d 617 (Ariz. 1984) (contrary, minority view that attorney press statements to reporters are not privileged)