The Colorado Supreme Court on Monday rejected a lower court decision that would have potentially deterred lawyers from disseminating information to the public about class action lawsuits.

Although lawyers generally enjoy immunity from defamation claims if they are speaking about their own litigation, the state’s Court of Appeals previously identified an exception to that shield.

Specifically, the court believed that when attorneys are publicizing a class action case affecting a group of injured plaintiffs, they can be sued for their inflammatory statements if they can actually figure out who belongs in the group without needing to turn to the media.

But Justice Richard L. Gabriel, in the Supreme Court’s Sept. 11 opinion, rebuffed the Court of Appeals’ interpretation as “unworkable.” Moreover, the appellate court ignored the fact that, even if the lawyers representing a class of nail technicians could identify everyone who belonged in the plaintiffs’ group through employment records, such documentation was not available at the very beginning of the case.

“Accordingly, early outreach through the press can benefit a class action regardless of whether it will ultimately be ‘easy’ to ascertain the class members from the employer’s records and documents that will be produced later,” Gabriel wrote.

In evaluating the case, the justices heard arguments about the consequences of allowing lawyers themselves to be sued for damaging statements they make when publicizing class action lawsuits. On the one hand, permitting defamation claims to proceed could discourage lawyers from making false accusations in the first place.

On the other hand, it might cause attorneys to think twice before speaking publicly – thereby decreasing the opportunity for injured plaintiffs to learn that someone is advocating for them.

“Today, the Colorado Supreme Court recognized that publicity is essential to the work of effective public interest lawyers who are educating the community about their legal rights, and that lawyers – and our clients – should not fear being sued in retaliation for speaking truthfully about their cases,” said Mari Newman, one of the defendants.

In the appeal before the Supreme Court, the law firms of Towards Justice and Killmer, Lane & Newman filed a class action lawsuit in 2018, claiming Ella Bliss Beauty Bar failed to pay its nail technicians for required custodial work. During a press conference, one of the attorneys, Newman, said that nail technicians had to clean the businesses “for no pay whatsoever” and that Ella Bliss would “pick and choose and only pay for the hours they feel like paying.”

A press release also stated Ella Bliss “forced” technicians to work for no pay.

While the law firms were litigating the class action in federal court, Ella Bliss filed a defamation lawsuit against them in state court. The law firms defended their initial statements to the media as an attempt to reach potential nail technicians in the class and to educate the public about its legal rights.

A three-judge panel for the Court of Appeals subsequently ruled that Newman’s statements and part of the press release were not shielded from a defamation claim. Because the lawsuit alleged the number of nail technicians in the class was “easily ascertainable” by looking at Ella Bliss’ records, the appellate panel agreed it was unnecessary to try and alert potential plaintiffs through reputation-damaging comments to the media.

“Said differently, according to the attorneys, their purpose in speaking with the press and issuing the press release was to reach nail technicians who had worked for the employer,” wrote then-Chief Judge Steve Bernard. “Yet the complaint in the federal lawsuit undermines the need to engage in that form of communication.”

On appeal to the Supreme Court, legal aid organizations, the ACLU of Colorado and multiple media entities backed the plaintiffs’ attorneys, warning the Court of Appeals’ newfound exception to immunity could affect the public’s ability to receive information about noteworthy litigation. 

At oral arguments, the justices appeared skeptical that Newman’s inflammatory statements fell outside of the “litigation privilege” in the first place. The privilege prevents attorneys from being sued for defamation when they speak about a lawsuit.

“There is something odd about the idea that simply by reiterating what is said in the complaint,” said Justice Melissa Hart, “you could be subject to a defamation lawsuit.”

The court ultimately decided that Newman’s statements were related to the class action lawsuit and were shielded by the litigation privilege. As for the exception the Court of Appeals created for certain class action lawsuits, Gabriel called it “unworkable in practice” and an unwarranted limitation on the shield from defamation.

He cautioned, however, that lawyers cannot make damaging, false statements without any consequence. Gabriel cited the recent case of Jenna Ellis, an attorney with former President Donald Trump’s 2020 reelection campaign, who made public misrepresentations about a “stolen” election. Colorado’s presiding disciplinary judge approved a public censure of Ellis in March.

Lawyers “may face sanctions or disciplinary action for violations of applicable court rules and rules of professional conduct in connection with their public statements,” Gabriel warned.

Attorneys for Ella Bliss did not respond to a request for comment.

The case is Killmer Lane & Newman, LLP et al. v. BKP, Inc. et al.

Editor’s note: This article has been updated with additional comments.