When the Colorado General Assembly adjourned on May 11, its record on civil justice was nothing to write home about.
For advocates of Common Sense in the Courtroom, this was no surprise given the expansions of liability handed to TV lawyers over the past four years. But for Colorado’s business community, it was another round of “the beatings will continue until morale improves.”
To be sure, this year wasn’t a total loss. Legislators did come together to restore sanity to our state’s premises liability law (SB 115), stopped an attempt to undermine employers’ ability to make workplace safety decisions (HB 1152), and put the brakes on an attempt to kill one of the few remaining protections against frivolous lawsuits (HB 1272). CCJL members are grateful to legislators for those stands.
Unfortunately, legislators of both parties cast too many votes to expand liability and to transfer or entrust responsibility for enforcing our state’s laws to private contingency-fee lawyers (HBs 1071, 1119, 1253 and 1285, plus SBs 97 and 161).
Increasingly, lawmakers seem to believe that Colorado’s wonderful climate is they key to our economy and believe business can always be absorb one more burden. One look at the steady decline of California should disabuse anyone of that notion.
Following is a summary of key bills related to civil justice:
HB 1071 – Damages in Class Actions Consumer Protection Act (Rep. Woodrow, Sen. Rodriguez). OPPOSE – PASSED.
After previous efforts failed, this bill finally became law, so Colorado will now allow private contingency-fee attorneys to file class actions under the Colorado Consumer Protection Act. The legislature was unpersuaded by abundant evidence that class actions provide virtually no benefit to plaintiffs and disproportionately benefit the attorneys who file them – including one of this bill’s sponsors.
HB 1091 – Online Availability of Judicial Opinions (Reps. Weissman & Soper, Sens. Bridges & Gardner). PASSED.
A valuable tool to make the court system more accessible to the public which is long overdue.
HB 1119 – Colorado False Claims Act (Reps. Gray & Weissman, Sen. Winter). PASSED.
CCJL has opposed previous attempts to add a general false claims act in state law because, as with HB 1071, a guiding principle is that the power to litigate on behalf of the State should be reserved to accountable, elected officials. We still believe this legislation was unnecessary and that the Attorney General has ample resources to pursue these claims. HB 1119 provides a sledgehammer for enforcement, which by and large will apply to those who made a simple error almost as much as to those determined to defraud. While we appreciate the improvements that were made to the original bill (such as limiting the compensation for private contingency-fee attorneys who litigate on behalf of the state and requiring a detailed annual report of those lawsuits), the fact remains that, based on the one-time influx of federal ARPA funds, Colorado is now saddled with a perpetual false claims act.
HB 1152 – Limit employer ability to regulate marijuana use by employees (Reps. Hooton & Titone). DEFEATED.
Legislators wisely turned back this proposal which was contrary to the constitutional provision that legalized recreational marijuana in Colorado. The bill would have overturned a unanimous Supreme Court decision in Coats v. Dish Network which upheld employers’ authority to regulate off-duty marijuana use by employees.
HB 1216 – Uniform Restrictive Employment Agreements (Rep. Tipper, Sen. Bridges). DEFEATED.
HB 1317 – Restrictive Employment Agreements (Rep. Tipper, Sen. Bridges) PASSED.
Colorado already has thorough, well-established statutes regarding non-disclosure and non-compete provisions in contracts. Both plaintiffs and defense attorneys are familiar with existing law. Even the revised HB 1317 makes Colorado an outlier among the 50 states by, among other things, establishing penalties for an employer that unintentionally presents an unenforceable agreement. While the stated objective was to prohibit non-compete agreements that inhibit entry-level workers from taking better jobs with competitors, this bill sets an unreasonably high threshold, allowing NCAs only for employees who make over $100,000 a year. Like the salary-history bill of a few years ago, this may be the next bill that prompts national employers to advertise job openings that specifically exclude Colorado residents.
HB 1253 – Adaptive Equipment in Rental Vehicles (Rep. Ortiz, Sen. Danielson). PASSED.
CCJL has no objection to the policy contained in this bill, but this is yet another instance in which the enforcement mechanism is litigation, multiple statutory damages, and one-way fee-shifting under which successful plaintiffs recover their attorney fees and costs, but unsuccessful plaintiffs do not face the risk of paying defendants’ legal bills. Is it so hard to give this authority to an existing government agency?
HB 1272 – Repeal Attorney Fees on Motion to Dismiss (Reps. Gonzales-Gutierrez & Benavidez; Sens. Gonzales & Rodriguez). PASSED.
As introduced, the bill sought to remove a defendant’s ability to recover attorney fees and costs even when the plaintiff’s claims are so flimsy or baseless they can’t survive a motion to dismiss. When considering a motion to dismiss, the court must assume that ALL of the plaintiff’s claims are true and construe all other matters in the plaintiff’s favor. If this isn’t the proper situation to require a plaintiff to pay the defendant’s legal fees, then Colorado has reached the point that we no longer care about discouraging frivolous lawsuits. However, the bill was ultimately amended to preserve existing law except when the plaintiff made an explicit “good-faith non-frivolous claim” for the purpose of challenging an existing precedent or challenging the constitutionality of a law that had not been determined by the Colorado Supreme Court.
HB 1285 – Hospital Debt Collection (Reps. Neville & Esgar, Sens. Moreno & Cooke). PASSED.
It’s hard to see how this bill is anything other than a litigation trap that benefits plaintiffs lawyers. Debt collection for services rendered and compliance with CMS transparency mandates are separate issues with separate remedies, but this bill conflates the two and creates a new litigation industry for plaintiffs lawyers. Broad definition of “debt” creates incentive for non-payment for services which were provided in good faith. Prohibiting any business from collecting an “obligation … of a consumer to pay money arising out of a transaction” amounts to legalizing theft and is an affront to personal responsibility.
HB 1367 – Updates to Employment Discrimination Laws (Reps. Lontine & Gray; Sens. Pettersen & Winter). PASSED.
The most significant provision of this bill extends the period for filing a claim of discrimination from six months to 300 days, mirroring federal law.
SB 94 – Insurer liability for property & casualty claims (Sens. Coram & Gonzales). DEFEATED.
Bill would have overturned existing case law and lacks a clear structure to determine when insurers would be liable for costs and attorney fees, thereby creating incentives for litigation. Creating unchecked opportunities for third-party vendors to collect additional fees from insurers threatens to drive up premiums for Colorado families and businesses.
SB 97 – Whistleblower complaints and protections (Sens. Petterson & Rodriguez, Reps. Herod & Sullivan). PASSED.
This statute was previously amended to add the protection for workers during a declared public-health emergency. Since then, employers have been leading advocates for employee and customer safety. Existing protections for employee whistleblowers include OSHA, federal anti-discrimination law, and the “public policy discharge doctrine” as applicable under CRS and common law. SB 97 removes the limitation to a declared public-health emergency.
SB 115 – Clarifying Landowner Liability (Sens. Gardner & Jaquez-Lewis, Reps. Tipper & Soper). PASSED.
Bill clarifies the extent to which property owners can be liable for criminal acts committed by others on their property. Specifically, the bill refutes the Colorado Supreme Court decision in Wagner v. Planned Parenthood which found that the owner of a property where controversial goods or services were being provided could be held liable without considering whether the criminal actions of a third-party were the predominant cause of harm. As a defender of property rights, CCJL disagreed with the Supreme Court’s decision in Wagner.
SB 161 – Wage Theft Employee Misclassification Enforcement (Sens. Danielson & Jaquez Lewis; Reps. Froelich & Duran). PASSED.
As with many wage bills proposed in recent years, this bill ignores the reality of incentive compensation plans and assumes that any dispute between the employee and employer constitutes “theft.”
SB 168 – Backcountry Search and Rescue (Sens. Rankin & Donovan; Reps. McCluskie & Will). MONITOR – PASSED.
Tucked away in this bill moving the search and rescue program from the Department of Local Affairs to Colorado Parks and Wildlife is an extension of liability protection to volunteers involved in this program.