Jogan Health, LLC v. Scripps Media, Inc.
2025 COA 4. No. 23CA1713. Defamation—Anti-SLAPP Special Motion to Dismiss—Reasonable Likelihood Plaintiff Will Prevail—Ancillary Claims.
January 16, 2025
In 2021, Dietrich submitted an application on behalf of his recently formed company, Jogan Health, LLC (collectively, Jogan), for the Colorado Vaccination Point of Distribution Program (COVID POD Program), which is run by the Colorado Department of Public Health and Environment (CDPHE). CDPHE awarded a contract to Jogan that provided $72 million for staffing and operations management for vaccine distribution sites and mobile clinics. Later that year, Denver7 Investigates reporter Wang began investigating a tip he received that Jogan employees were not timely receiving their contractually required pay. Wang then wrote four Denver7 news stories published over the course of 10 months that detailed issues including complaints about Jogan’s delay or failure to pay its employees, government findings that Jogan violated Colorado’s wage laws, Jogan’s false representation about its experience in its CDPHE application, and CDPHE’s decision to cease sending work to Jogan. Jogan commented on some of the articles before publication but did not contact Wang or Denver7 Investigates to correct any of the statements after publication. Jogan sued Scripps Media, Inc. and Wang (defendants) for defamation and intentional infliction of emotional distress (IIED), interference with business relationships, and injunctive relief based on statements made in Wang’s news stories, published between December 2021 and October 2022. Defendants filed a special motion to dismiss under Colorado’s anti-SLAPP (strategic lawsuit against public participation) statute, arguing that Jogan could not demonstrate a reasonable likelihood of proving material falsity. The district court granted the motion, finding that Jogan failed to establish a reasonable likelihood that it would prevail on any of its claims at trial. The court determined that defendants were the prevailing parties and awarded them reasonable attorney fees and costs.
On appeal, Jogan contended that the district court erred by applying an incorrect evidentiary standard when it granted the special motion to dismiss by requiring it to prove its claims at the special motion to dismiss stage by clear and convincing evidence, rather than requiring it to establish a reasonable likelihood that it would prevail at trial. Jogan also asserted that the district court did not accept Jogan’s evidence as true, instead weighing both parties’ evidence to conclude that there was no reasonable likelihood of success. Here, while the district court concluded that Jogan’s arguments failed to provide a reasonable likelihood, based on clear and convincing evidence, of establishing that defendants’ statements were false, the court’s order shows that it nevertheless applied the correct burden of proof to Jogan’s claims—whether a reasonable probability exists that Jogan could prove its claims by clear and convincing evidence at trial. Further, the district court clearly understood that it could not weigh the evidence to resolve the anti-SLAPP motion.
Jogan also argued that the district court erred by concluding that there was not a reasonable likelihood it would prevail on its defamation claims at trial. A plaintiff must prove that the alleged defamatory statement is both false and material. Here, the record clearly supports the district court’s finding that Dietrich’s statement in his CDPHE application about his experience is false, as was reported in Wang’s article. Because the article’s statements were not materially false, Jogan did not establish that there was a reasonable likelihood that it would prevail on its defamation claim.
Jogan further contended that statements in the December 23 and February 4 articles reporting on employees’ complaints about the delay or nonpayment of wages and expenses were false, claiming that the district court did not take Jogan’s evidence as true and improperly considered only defendants’ evidence. While these articles implied that the employees believed it was Jogan’s fault that they were not getting paid, they also presented Jogan’s perspective. So under these circumstances, the statements were not materially false. Further, the district court properly concluded that the fair report privilege applied to a citation issued by the Colorado Department of Labor and Employment (CDLE) that found that Jogan had willfully violated Colorado wage law, and defendants accurately tracked CDLE’s findings. Accordingly, Jogan could not demonstrate a reasonable likelihood of success on its related defamation claim, and the district court properly dismissed the claims as to these publications.
Jogan also asserted that the articles published on June 20 and October 12 falsely stated that CDPHE stopped his work months earlier than the contracted end date and that CDPHE cut Jogan off from all new work. And in stating the reasons behind the contract winding down, the articles implied that he was a “bad actor” and had improperly performed work under the contract. While Jogan’s evidence supports a finding that the actual terms of the contract did not expire until June 30, 2022, and that Jogan was not terminated by CDPHE, the evidence fails to show that CDPHE did not stop assigning work to Jogan before the contract’s term expired. And Jogan failed to present evidence disputing the statements that CDPHE had concerns about his payroll practices, that its confidence in Jogan was eroding, or that CDPHE was receiving complaints. Therefore, Jogan did not demonstrate a reasonable likelihood that it could prove at trial that the statements concerning the termination of its contract were false. The district court thus correctly dismissed the complaint under the anti-SLAPP statute.
The court of appeals also determined that the district court did not abuse its discretion by denying Jogan’s motion for discovery because Jogan’s request was solely relevant to actual malice, and the request was filed after defendants withdrew the defense of actual malice that they initially asserted in their special motion to dismiss.
Additionally, because the court concluded that Jogan’s defamation claims do not survive the special motion to dismiss, its ancillary claims of IIED, interference with business relationships, and injunctive relief were also correctly dismissed by the district court.
Lastly, because the court affirmed the dismissal of Jogan’s claims, it concluded that defendants are the prevailing parties and are entitled to recover reasonable attorney fees and costs for the district court proceedings.
The judgment granting the special motion to dismiss and its order awarding reasonable attorney fees to defendants were affirmed. Defendants were also awarded their reasonable attorney fees incurred on appeal, and the case was remanded for the district court to determine the amount of those fees.