Brokers' Choice of America, Inc. v. NBC Universal, Inc.
138 F. Supp. 3d 1191
D. Colo.2015Background
- In 2007 NBC's Dateline used hidden-camera footage from a two-day sales seminar called “Annuity University” run by Brokers’ Choice of America (BCA) and its CEO Tyrone Clark to produce a segment alleging Clark taught agents to "scare and mislead seniors" into unsuitable annuities.
- Plaintiffs (BCA and Clark) sued for defamation; this Court originally dismissed but the Tenth Circuit reversed in part, instructing a global comparison between the aired segment and the entire seminar to determine the broadcast’s "gist." Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125 (10th Cir. 2014).
- The outtakes (unedited hidden-camera footage) were initially shielded but are now before the Court as transcripts; the Court reviewed them in full against the Dateline broadcast.
- Legal framework: Colorado defamation law applies; for public-figure/public-concern speech plaintiffs must prove falsity of the publication’s gist and actual malice by clear and convincing evidence; substantial truth is an absolute defense.
- The Court conducted the Tenth Circuit–mandated totality comparison and found the outtakes showed Clark repeatedly emphasizing large commissions, instructing agents how to elicit emotional fears in seniors, minimizing or spinning annuity downsides, and suggesting purchased/ghostwritten credibility tools.
- Conclusion: the Court held Dateline’s portrayal was substantially true as a matter of law and granted defendants’ motion to dismiss with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 12(g) bars Defendant's successive motion to dismiss / whether conversion to summary judgment was required | Plaintiffs: prior privilege objections made outtakes "available" and Defendants waived further 12(b)(6) motions; thus the motion should be denied on procedural grounds | Defendants: outtakes were not previously available because of a good-faith shield-law privilege; comparison was impossible earlier | Court: did not apply Rule 12(g); good-faith privilege made earlier usage unavailable and no conversion to summary judgment was required because the transcripts were central and undisputed |
| Whether the Amended Complaint plausibly alleges defamation under Colorado law (falsity of the broadcast’s "gist") | Plaintiffs: the unedited seminar, taken in whole, shows Clark taught ethics, warned of annuity downsides, and did not instruct agents to scare or mislead seniors | Defendants: the outtakes corroborate Dateline’s portrayal — Clark emphasized sales, commissions, eliciting fear/emotion, minimized annuity downsides, and marketed credibility tools | Court: comparing the whole seminar to the broadcast, the "gist" that Clark taught scare tactics and questionable selling/suitability methods was substantially true; dismissal proper |
| Whether context/omissions made otherwise-true quotations defamatory (i.e., did aired editing create a materially different effect) | Plaintiffs: selective editing and omitted material would produce a materially different impression on viewers | Defendants: the undisputed outtakes show the broadcast’s omissions did not change the substantive impression; the substance/gist matched what Clark taught | Court: the omitted material would not produce a different effect on a viewer; substantial truth determined as a matter of law |
| Whether heightened constitutional standards (actual malice / clear-and-convincing proof) prevented dismissal | Plaintiffs: must be entitled to trial to try to prove falsity/actual malice | Defendants: plaintiffs cannot show falsity (let alone clear-and-convincing evidence of falsity or actual malice) because the outtakes support Dateline’s characterization | Court: plaintiff failed to show falsity by clear and convincing evidence; actual malice not proven and substantial-truth defense entitles defendants to dismissal |
Key Cases Cited
- Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125 (10th Cir. 2014) (directed a global comparison of aired segment and full seminar to determine the gist’s truth)
- New York Times Co. v. Sullivan, 376 U.S. 254 (Supreme Court) (press has constitutional privilege; public-figure falsity requires actual malice)
- Masson v. New Yorker Magazine, 501 U.S. 496 (Supreme Court) (context and material alteration of quotations relevant to defamation injury)
- Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237 (Supreme Court) (discusses standards for falsity and audiences’ perception in defamation contexts)
- Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351 (Colo. 1983) (context and common meaning govern whether wording conveys defamatory factual assertions)
- Peterson v. Grisham, 594 F.3d 723 (10th Cir. 2010) (Rule 12(b)(6) pleading standards)