Brokers' Choice of America, Inc. v. NBC Universal, Inc.
861 F.3d 1081
| 10th Cir. | 2017Background
- In Oct. 2007 NBC producers, with fake Alabama insurance licenses, secretly recorded Brokers’ Choice of America’s (BCA) two-day “Annuity University” seminar taught by Tyrone Clark; NBC used excerpts in an April 2008 Dateline episode investigating annuity sales to seniors.
- Dateline’s asserted “gist”: Clark teaches agents to scare and mislead seniors into buying unsuitable annuities; the broadcast ran ~9½ minutes of BCA-related material and quoted <120 words from the seminar.
- BCA sued NBC for defamation (among other claims); the district court initially dismissed (w/o prejudice), stayed discovery of the recording, and later dismissed the amended complaint with prejudice after reviewing the recording provided on remand.
- Tenth Circuit (Brokers’ Choice II) reversed in part, holding falsity must be judged by comparing the full seminar recording to the episode (the “gist”/“sting” analysis) and ordered production of the recording; on remand the district court compared the episode to the full recording and again dismissed for substantial truth.
- On this appeal the Tenth Circuit reviews de novo whether, given the seminar recording, the Dateline episode was materially false; it affirms the dismissal, holding the episode’s gist was not materially false under the governing First Amendment/Colorado standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Law of the case — whether remand precluded renewed motion to dismiss | Brokers’ Choice: prior panel’s ruling that the claim survived plausibility review bars relitigation | NBC: new evidence (the produced seminar recording) is properly considered on remand | Held: District court could consider the motion — the recording was new evidence and altered the operative complaint, so law-of-the-case did not bar reconsideration |
| Rule 12(g)(2) / successive 12(b)(6) motions | BCA: NBC waived substantial-truth defense by not using the recording earlier | NBC: motion responds to amended complaint that included the recording; Rule 12(h)(2)/12(c) allow failure-to-state-a-claim to be raised | Held: No waiver; court permissibly treated the filing as a Rule 12(c) / renewed 12(b)(6) response to the amended complaint |
| Conversion to summary judgment — whether considering recording required Rule 56 treatment | BCA: district court weighed evidence, failed to view facts in plaintiff’s favor; should have converted to summary judgment | NBC: recording and episode were attached/referenced, central and undisputed; consideration appropriate on 12(b)(6) | Held: No abuse — exhibits were central and authentic; 12(b)(6) consideration was proper without conversion |
| Material falsity / substantial truth (defamation element) | BCA: Dateline took words out of context and created a false impression; seminar shows Clark taught suitability, ethics, and not scare/mislead | NBC: full seminar shows Clark taught emotional “scare” tactics, script/language to deflect criticisms, paid marketing to inflate credentials, and minimal individualized suitability guidance; episode was substantially true | Held: Episode not materially false — comparison to full seminar shows the gist (scare, mislead, sell unsuitable products) was substantially true under Masson/Bustos standard; some critic comments were protected opinion |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (First Amendment requires proof of actual malice for public-official defamation claims)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (public-figure/ public-concern standards and allocation of falsity burden)
- Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) (plaintiff must prove falsity for matters of public concern)
- Masson v. New Yorker Magazine, 501 U.S. 496 (1991) (substantial truth standard; minor inaccuracies are nonactionable; context matters)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion protected unless it implies provably false facts)
- Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014) (actual malice requires material falsity)
- Bustos v. A & E Television Networks, 646 F.3d 762 (10th Cir.) (material falsity standard under Colorado law; comparative-harm test)
- Lundell Mfg. Co. v. American Broadcasting Cos., 98 F.3d 351 (8th Cir. 1996) (when underlying facts are undisputed, substantial truth is a question of law)