By Jeffrey A. Roberts
CFOIC Executive Director

A judge last week applied Colorado’s four-year-old anti-SLAPP law in tossing out defamation allegations made by a health care staffing company against reporters for Denver7 and Denver Newsbreak.

The 2019 statute established an expedited process for dismissing civil actions, known as Strategic Lawsuits Against Public Participation, targeting free expression about matters of public interest. When a libel claim fits that criterion, a court can be asked to rule on whether the plaintiff has established “a reasonable likelihood” of prevailing on the claim, potentially halting the case (although an appeal is allowed) before the expenses of the discovery process are incurred.

On Aug. 15, Arapahoe County District Court Judge Ben Leutwyler found that Jogan Health and its owner Daniel Dietrich would likely not be able to show that Denver7 owner Scripps Media and its reporter/anchor Bayan Wang defamed the company in a June 2022 story. The judge also held that Jogan “failed to provide any reason” why NewsBreak Denver reporter Mike McKibbin could not “reasonably rely” on the Denver7 investigation for his own article.

“If Plaintiffs cannot establish, by clear and convincing evidence, a reasonable likelihood that the published statements were false, the claims must be dismissed,” Leutwyler wrote.

Wang’s story focused on Jogan’s successful $72 million bid in 2021 to help the Colorado Department of Public Health and Environment vaccinate Coloradans against COVID-19. The company, he reported, had been in business for only two months before submitting its application.

Jogan and Dietrich sued, in part, over a passage in the article that questioned the company’s claims about its experience. “It took Denver7 Investigates just three emails to the entities Jogan Health claimed to have done work for to figure out Dan Dietrich and his Jogan Health, LLC did not have the experience it claimed in its application,” the story says. “CDPHE still insists it did extensive vetting of Jogan Health before handing over $72 million of Coloradans’ tax dollars.”

Jogan’s lawsuit alleged Wang “acted with actual malice” by asserting “Logan lied on its application when it identified work done by its subcontractor, Safety Management Systems, LLC, as references for CDPHE. However, Jogan clearly stated that the management of the projects identified as references was handled by Safety Management Systems, who was going to manage the work for CDPHE, and did manage the work for CDPHE until Jogan took over the work,” the company’s complaint adds.

But the judge cited the Jogan bid’s “multiple references to (the company’s) work on significant projects in other parts of the country.”

“The quoted statements are clearly at odds with the fact that Jogan was formed only two months prior to the time it claims to have many years of experience,” Leutwyler wrote. “A fair reading of Jogan’s bid leads to the conclusion that Jogan itself was awarded contracts with the three different entities named in the bid.”

The statements, the judge added, “clearly imply that Jogan itself had the experience represented, a fact that is patently untrue.”

Leutwyler granted Scripps’ motions to dismiss on claims related to the June 2022 Denver7 article and later stories about wage complaints against Jogan made to the Colorado Department of Labor and Employment. “The Court finds that media reporting of findings of a Colorado governmental agency is covered by the fair report defense,” the ruling says.

The judge also dismissed Jogan’s claim that McKibbin falsely implied the health department had prematurely stopped Jogan’s work when he used the terms “fired” and “suspended” in his article.

“Even if Jogan continued to do some work for the state, as Jogan asserts, the Court finds that, in context, there is no substantial difference between the allegedly libelous statements and the literal truth.”

Steve Zansberg, president of the Colorado Freedom of Information Coalition, represented Scripps Media in the case as well as The Denver Post, which published one of Wang’s stories. Greg Szewczyk of Ballard Spahr represented McKibbin.

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