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Colorado Court of Appeals rules in favor of woman sued over negative online review

Posted at 11:55 AM, May 12, 2023

COLORADO — The Colorado Court of Appeals has ruled in favor of a Colorado Springs woman who was sued for writing a negative review on a company's Facebook page.

KOAA reported back in 2021 when Liz Watson contacted Smith Plumbing and Heating for a free estimate for several home repairs. In court documents, she said technicians came to her house and gave her an estimate of more than $20,000 for the services. Watson said she got second opinions from other providers and claims in legal documents that the estimates came back at a fraction of the cost.

She then left a negative review on Smith Plumbing's Facebook page, saying they tried to charge her $23,000 for $10,000 in work. At the end of the post, she said the business "really tried to take advantage of this single parent."

Watson negative online review
Watson left a negative review on Smith Plumbing's Facebook page, saying they tried to charge her $23,000 for $10,000 in work. At the end of the post, she said the business "really tried to take advantage of this single parent."

Two days later the general counsel for the company sent Watson a letter demanding $10,000 in damages and to take down the post or they would file a defamation lawsuit. Watson refused to delete the post and an attorney representing Smith Plumbing filed a lawsuit and requested a jury trial.

Court documents show the company claims Watson left out key facts from her online review. They claim in the documents that the estimates from other businesses were not comparable to theirs because they involved different work, equipment, and warranties. Cassandra Kirsch, the attorney for Smith Plumbing, said the estimate from Smith Plumbing and Heating was higher because technicians found code violations that needed repairs.

"It didn't match up with the invoices, the numbers didn't match up. Because when you get rid of the code violations, the cost she's quoting is essentially the same. So there really was no predatory pricing, the math was off," said Kirsch.

The attorney said in court documents that Watson posted the review with malice, or the intent to harm the company. Ian Speir, Watson's attorney said that is not true.

"Liz's review was protected speech under the First Amendment," he said.

He filed a motion to dismiss the lawsuit with the trial court, citing Colorado's Anti-SLAPP law, which was made to protect individuals from retaliatory lawsuits against those speaking out on public issues.

"They're designed to protect against abusive lawsuits. She's a single mom and a Costco employee. She doesn't have the resources and didn't have the resources to defend a lawsuit," said Speir.

In 2022, the trial court denied the request to dismiss the company's claims, saying it agreed that Watson's Facebook review met the basic definition of defamatory under Colorado law. Watson's attorney appealed the ruling and just two weeks ago, the Court of Appeals ruled in favor of Watson and her online review.

"The Court of Appeals said, this is a pretty factual and substantially true review, ends with a statement of opinion, it's protected," said Speir.

In its ruling, the court said Watson's post was about a matter of public concern, that her review was a statement of opinion, and that the business would not be able to win at trial.

The business's attorney says this is not how the Anti-SLAPP statute was intended to be used.

"A statute that was intended to be a shield is being used as a sword to keep legitimate plaintiffs out of court," said Kirsch.

Mike Robinson, general manager of Smith Plumbing, said the statute should be used to protect individuals from large corporations, not small businesses like his.

"We're a mom-and-pop company. Every dollar that we put in towards this case is a dollar that doesn't go to bonuses or new uniforms or enhanced benefits for our people," he said.

Robinson claims this ruling could lead to a free-for-all for consumers and competitors to smear businesses through online reviews.

"This is more about can you publish things that are untrue, that you know, are untrue, that are fabricated?" he said.

The company said in court documents that it shut down its social media for a week and said employees faced real-world harassment.

"It was just out of control, obnoxious people, who had no, no idea, the facts of the case, had heard a snippet," said Robinson.

Attorney Steve Zansberg was a key stakeholder in getting Colorado's anti-SLAPP law passed. He said he believes the Court of Appeals made the right decision and used the law how it was intended.

"It appropriately applies our Anti-SLAPP statute for the benefit not just of a defendant here, a consumer who voiced her concerns about business practices, but for the benefit of all of us to receive that information," he said.

Zansberg said because a court denied Watson's request to publish the decision, the ruling will not become a precedent.

"It can be cited to draw courts for persuasive authority, but it is non-binding. It is not a precedent," he said.

The company's attorney says they are asking for a rehearing from the Court of Appeals and for the Colorado Supreme Court to take on the case.

"At the end of the day, consumers and businesses alike need to have this confusion cleared up," she said.

"We need to make this right for other people that come behind us, and really give businesses still a chance to be able to counter or challenge these malicious, untrue, and libelous reviews," said Robinson.

Zansberg said it is unlikely the Colorado Supreme Court will hear the case since the Court of Appeals unanimously dismissed it. Watson said she is still standing by what the Colorado Court of Appeals has now ruled as protected speech in her online review.

"Being able to just express your experience and express your opinion about a provider, that's protected speech," said Watson. "That's something that everybody should have the right to be able to choose and read those and decide what they're going to do with their own money and how they want to spend it."
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