Over the years, plaintiff’s attorneys have steadily attempted to chip away at the guardrails that keep Colorado Consumer Protection Act (“CCPA”) claims in check. Over the last few years, the General Assembly has considered a number of bills designed to make it easier to prevail on CCPA claims, increasing litigation risk for businesses across industries, entitling plaintiffs’ to treble damages, and their attorneys to attorneys’ fees and costs. Senate Bill 25-157 is the latest in this long line of plaintiff-friendly legislation. If enacted, it will further tilt the playing field by lowering the bar for proving deceptive trade practices, paving the way for more lawsuits, treble damages, and attorneys’ fees.
Lowering the Bar for CCPA Claims
S.B. 25-157 removes critical defenses that businesses have relied upon for decades. Under current law, claimants must demonstrate that a deceptive act significantly impacts the public — a requirement that serves as an important safeguard against turning every negligent misrepresentation claim into a CCPA, entitling claimants to heightened damages awards to include treble damages and attorneys’ fees. However, S.B. 25-157 changes the rules by establishing that certain evidence automatically constitutes a significant public impact, making it far easier for plaintiffs to establish a claim.
It is important to recall that the Colorado Supreme Court recognized the CCPA’s function to “control various deceptive trade practices in dealing with the public.” People ex rel. Dunbar v. Gym of America, Inc., 493 P.2d 660, 665 (1972) (emphasis added). To be clear, the CCPA regulates practices which “because of their nature, may prove injurious, offensive, or dangerous to the public.” Id.; see also People ex rel. MacFarlane v. Alpert Corp., 660 P.2d 1295, 1297 (Colo. App. 1982) (noting the substantial public protection emphasis of the CCPA).
If Colorado courts have recognized that the purpose of the CCPA is to protect the public, and violation of the CCPA results in heightened damages, it seems only fitting that plaintiffs seeking to prove CCPA claims have to demonstrate significant public impact caused by a defendant’s actions. See Hall v. Walter, 969 P.2d 224 (Colo. 1998).
The bill also seeks to override legal precedent that has protected businesses from overreach. It ensures that claims based on breach of contract, negligence, or the rendering of professional services can still qualify as deceptive trade practices if they involve a...
