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

2023 CO 47. No. 21SC930. Litigation Privilege—Defamation—Statements of Counsel—Class Actions.

September 11, 2023

In this case, the Supreme Court considered whether the common law litigation privilege for party-generated publicity in pending class action litigation excludes situations where the identities of class members are ascertainable through discovery.

The Court concluded that the court of appeals division erred in conditioning the applicability of the litigation privilege in pending class action litigation on whether the identities of class members are ascertainable through discovery. The Court further concluded that the five allegedly defamatory statements at issue, which merely repeated, summarized, or paraphrased the allegations made in the class action complaint, and which served to notify the public, absent class members, and witnesses about the litigation, were absolutely privileged.

Accordingly, the Court reversed the division’s judgment.