Colorado’s second-highest court agreed earlier this month that a former vaccine distribution contractor for the state failed to show Denver7 should be liable for defamation through its series of stories about the company’s problems.

Between 2021 and 2022, Denver7 published four articles describing employees of Jogan Health, LLC not receiving payments, false statements in Jogan Health’s bid for the COVID-19 vaccination contract, and a wage theft violation resulting in Jogan Health paying $6,000 in penalties. 

In response, Jogan Health and its owner, Daniel Dietrich, filed a defamation lawsuit against Scripps Media, reporter Bayan Wang and others. The plaintiffs alleged 14 false and damaging statements in the news coverage. 

The defendants moved to dismiss Jogan Health’s claims under Colorado’s “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The legislature enacted the law in 2019 to provide a mechanism to quickly dispose of litigation that implicates a person’s First Amendment rights — specifically, the rights to free speech and to petition the government. 

In August 2023, Arapahoe County District Court Judge Ben L. Leutwyler granted the motion to dismiss. He found Wang accurately reported on Jogan Health’s incorrect assertions about its experience when bidding for the $72 million state contract. Further, it was accurate to say Colorado’s labor department found Jogan Health willfully violated wage laws and that the state stopped assigning work to the company once it learned of problems.

Leutwyler concluded Jogan Health was required to show it would likely succeed in proving defamation, but “Plaintiffs have failed to meet their burden on all claims.”

Jogan Health appealed, arguing the evidence did not show the company to be the source of the problems, that it misstated its experience to the state or that Colorado ended its vaccination contract with the company early.

A three-judge appellate panel rejected Jogan Health’s arguments about all three categories of defamatory statements.

Judge David H. Yun, writing in the Jan. 16 opinion, noted Jogan Health’s application for the state contract stated it had extensive experience, when in reality the company was founded two months beforehand.

Further, while Denver7’s articles suggested Jogan Health was to blame for its workers’ failures to get paid, the reporting also presented the company’s argument that employee error was responsible.

Finally, there was no doubt that the state stopped assigning work to Jogan Health before the contract’s expiration date because the health department lost confidence in the company.

“Jogan has not carried its burden of demonstrating a reasonable likelihood that it could prove at trial that the statements concerning the termination of its contract were false,” Yun wrote.

The panel upheld the dismissal of Jogan Health’s claims.

Judge Michael H. Berger wrote separately to say he believed the panel relied on the incorrect standard when evaluating Jogan Health’s likelihood of success at trial. Nonetheless, he still believed dismissal was the appropriate outcome.

The case is Jogan Health, LLC et al. v. Scripps Media, Inc. et al.