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BKP, Inc. v. Killmer, Lane & Newman, LLP.

2021 COA 144. No. 20CA0298.  Class Action—Press Conference—Press Release—Defamation—Intentional Interference with Contractual Relations—Litigation Privilege—Noerr-Pennington Doctrine—First Amendment.

December 2, 2021

Attorney Newman and two law firms (collectively, attorneys) filed a class action lawsuit against BKP, Inc., Ella Bliss Beauty Bar, L.L.C., Ella Bliss Beauty Bar 2, L.L.C., and Ella Bliss Beauty Bar 3, L.L.C. (collectively, employer) on behalf of an employee nail technician. The putative class members are other nail technicians who also worked for employer. Attorneys held a press conference and issued a press release regarding the claims in the lawsuit. About a year after these statements were made, employer sued attorneys, asserting that the four statements in the press conference and the statements in the press release amounted to defamation and intentional interference with contractual relations. The court granted attorneys’ CRCP 12(b)(5) motion to dismiss employer’s claims.

On appeal, employer argued that the trial court erred in dismissing its lawsuit against attorneys. Here, attorneys admitted in their complaint that identifying other employees could be done through employer’s records, so they did not need to use the press to contact other class litigants. Therefore, the statements made during the press conference and in the press release were not protected by the litigation privilege. Second, the Noerr-Pennington doctrine, which applies only to conduct aimed at influencing decision-making by the government, does not apply. While the doctrine protects statements made in litigation and conduct incidental to the prosecution of a lawsuit, the statements made at the press conference and in the press release simply publicized the lawsuit without advancing the nail technicians’ interests in it. Finally, although some of attorneys’ statements were opinions protected by the First Amendment, the First Amendment does not absolutely protect defamatory speech.

The trial court’s determination that some attorneys’ statements made at the press conference were opinions protected by the First Amendment was affirmed. The trial court’s determination that some attorneys’ statements were protected by the Noerr-Pennington doctrine and the litigation privilege was reversed. The order dismissing the case was reversed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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