Impact Fund and Allies file Amicus Brief to rebuff defamation claims in Class Action litigation

Meredith Dixon, Law Fellow

Can plaintiffs’ attorneys be charged with defamation for statements made to the press about a newly filed class action case? In BKP, Inc. v. Killmer, Lane & Newman, LLP, 506 P.3d 84, 94 (Colo. App. 2021), cert. granted, 21SC930, 2022 WL 17585946 (Colo. Dec. 12, 2022), a panel of the Colorado Court of Appeals said yes, at least where the complaint alleges that the class members are ascertainable. The Impact Fund, along with amici Colorado Cross-Disability Coalition, Disability Law Colorado, Legal Aid at Work, Public Counsel, and Public Justice, filed an amicus brief in the Colorado Supreme Court arguing that the panel misunderstood “ascertainability” and reached an incorrect conclusion.  Impact Fund and amici asked the Colorado Supreme Court to protect the litigation privilege for class actions.

In May 2018, Colorado legal nonprofit Towards Justice and co-counsel Mari Newman of Killmer, Lane & Newman, LLP, held a press conference and sent out a press release about a wage-and-hour class action case they had recently filed on behalf of underpaid nail salon workers. A year later, the employers sued the plaintiffs’ lawyers for defamation.

The trial court dismissed the employer’s defamation case with prejudice, but the Colorado Court of Appeals reversed in part and held that the litigation privilege did not apply in class actions with ascertainable class members.

Our brief argues that ascertainability is a forward-looking inquiry, not who is in the proposed class at the time of filing.

The panel acknowledged that multiple states have shielded attorneys from liability for describing class action cases in the press because media coverage allows attorneys to connect with absent class members and witnesses and educates the public about their rights. However, the panel found that the litigation privilege was not warranted in this case because the complaint alleged that the proposed class was “ascertainable.” The panel understood ascertainability to mean that “identifying the members of the class would be easy” and therefore the named plaintiffs would not require assistance identifying and connecting with absent class members and witnesses.

The Colorado Supreme Court took up the question of whether the litigation privilege includes cases where the identities of class members are ascertainable through discovery. Petitioners and other amici (including the unlikely pairing of the Colorado Trial Lawyers Association and the Colorado Defense Lawyers Association) argue that the panel unjustifiably “[i]nvented an expansive ‘ascertainability’ exception” to the litigation privilege that would chill speech for litigants on both sides in nearly all class cases.

The Impact Fund and amici focused on the panel’s misunderstanding of “ascertainability,” a term of art particular to class actions. Ascertainability is the implied prerequisite that a class be defined by clear and definite terms so that a court can determine who is bound by a judgment and who is entitled to relief. Critical to the issue at hand, ascertainability is a forward-looking inquiry, asking whether a court will be able to ascertain class membership at some future point in the litigation. It has never meant that plaintiffs know who is in the proposed class at the time of filing.

Connecting with absent class members and educating the public about their rights are critical to zealous advocacy in class action cases, regardless of whether a class is ascertainable.  Impact Fund is grateful for the community of public interest class action litigators that joined together to urge the Colorado Supreme Court to reverse the panel decision and protect their right to speak to the public about their cases.