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Colorado Anti – SLAPP Statute

What is the Colorado Anti-SLAPP Statute?

SLAPP stands for “Strategic Lawsuits Against Public Participation.”  Over the years, people and businesses have strategically used meritless lawsuits to silence critics or opposition by burdening them with the cost of a lawsuit.  In these types of cases, the plaintiff files the lawsuit not to win the case but to make the defendant end their opposition by pressure and legal costs.  These lawsuits end up having a harmful effect on our First Amendment rights. People may be afraid to speak their thoughts and opinions in fear of being sued.  To protect our right to free speech and right to petition, some states have adopted Anti-SLAPP laws.   These Anti-SLAPP laws are designed to deter anyone from filing such a lawsuit simply to silence critics.

In July of 2019, Colorado adopted its own Anti-SLAPP law.  Colorado’s Anti-SLAPP law provides a procedural mechanism that allows a defendant to request the Court to dismiss the lawsuit against them because the case involves protected speech on a matter of public interest.  This procedural mechanism is called a “special motion to dismiss.”  Once the defendant demonstrates that the case involves protected speech regarding a matter of public concerns, the plaintiff must then convince the Court that there is a reasonable likelihood the plaintiff will win the lawsuit.  If the plaintiff fails to convince the Court, the case is dismissed, and the plaintiff will likely have to pay the defendant’s attorney’s fees for defending the lawsuit.  If the plaintiff convinces the Court that there is a reasonable likelihood that the plaintiff will win, the case proceeds as normal.

Under Colorado’s Anti-SLAPP law, the lawsuit must concern one of the following:

  1. A statement made before a legislative, executive, or judicial proceeding or any other official proceeding authorized by law;
  2. Any statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law;
  3. Any statement made in a place open to the public or a public forum in connection with an issue of public interest; or
  4. Any other conduct or communication in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

STEPS IN A COLORADO SLAPP DEFENSE

The Colorado Anti-SLAPP law sets forth the following steps:

  1. Lawsuit is filed and served on the defendant.
  2. Within 63 days from being served with the lawsuit (or a longer time if allowed by the Court), the defendant can file a “special motion to dismiss” under the Colorado Anti-SLAPP statute.
  3. Within 28 days from the filing of the special motion to dismiss, the Court holds a hearing to make its decision on the special motion to dismiss.
  4. At (or after) the hearing, the Court determines whether the challenged speech is protected is protected by the First Amendment and regards a matter of public concerns, and if so, whether the plaintiff has demonstrated that there is a reasonable likelihood the plaintiff will win on the merits.
  5. If the Court determines there is a reasonable likelihood that the plaintiff will win, the lawsuit continues in its normal course.
  6. If the Court determines there is not a reasonable likelihood that the plaintiff will win, the case is dismissed, and the plaintiff must pay the defendant’s attorney’s fees and costs.

By requiring the plaintiff pay the defendant’s attorney’s fees and costs, the Colorado Anti-SLAPP law creates a deterrence to filing a lawsuit simply to silence their opposition.  Traditionally, a defendant can only win their attorney’s fees and costs where there is a contract or a statute that allows such an award.  The Colorado Anti-SLAPP law adds a new avenue for a defendant to win their attorney’s fees and costs and end these types of cases early.

One of the most famous SLAPP-type cases involved Oprah Winfrey against members of the Texas beef and pork industry.  In 1996 Oprah aired an episode called “Dangerous Food” that involved mad cow disease and included her personal declaration to stop eating beef.  It was believed by some that this episode contributed to a drop in cattle prices.  Members of the Texas beef and pork industry filed suit against Oprah seeking more than $10 million in damages.  Oprah eventually won the case but only after spending over $1 million in legal fees.  At the time this case was brought, Texas did not have an Anti-SLAPP law (although Texas did adopt an anti-SLAPP law later).

Colorado’s Anti-SLAPP law is very young.  As such, there is little case law that has been issued by Colorado Courts regarding the application of Colorado’s Anti-SLAPP law.  Burnham Law is excited to be on the cutting edge of Colorado’s Anti-SLAPP law.  Because of its dedication to excellent representation and staying on the cutting edge of the legal field, Burnham Law was one of Colorado’s first law firms to argue Colorado’s Anti-SLAPP law before the Colorado Court of Appeals.  In doing so, Burnham Law combines its long history of civil litigation with a desire to engage in Colorado’s newest laws to serve its clients.

The full text of Colorado’s Anti-SLAPP law can be found in Colorado Revised Statute §13-20-1101.  If you or a loved one is involved in a civil lawsuit, contact us today to get the representation you need by calling (303) 990-5308.

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Ashlee
Hoffmann

Senior Associate - Civil Litigation

Boulder

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