757 F.3d 1125 (10th Cir. 2014), 11-1042, Brokers' Choice of America, Inc. v. NBC Universal, Inc.

Docket Nº:11-1042
Citation:757 F.3d 1125
Opinion Judge:O'BRIEN, Circuit Judge.
Party Name:BROKERS' CHOICE OF AMERICA, INC.; TYRONE M. CLARK, Plaintiffs -- Appellants, v. NBC UNIVERSAL, INC.; GENERAL ELECTRIC CO.; CHRIS HANSEN; STEVEN FOX ECKERT; MARIE THERESA AMOREBIETA, Defendants -- Appellees
Attorney:John J. Walsh of Carter Ledyard & Milburn LLP, New York, New York (Thomas E. Downey, Jr. of Downey & Murray, LLC, Englewood, Colorado, with him on the brief) for Plaintiffs--Appellants. Thomas B. Kelley of Levine Sullivan Koch & Schulz, LLP., Denver, Colorado (Hilary Lane of NBC Universal, Inc., ...
Judge Panel:Before BRISCOE, Chief Circuit Judge, McKAY, and O'BRIEN, Circuit Judges.
Case Date:July 09, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1125

757 F.3d 1125 (10th Cir. 2014)

BROKERS' CHOICE OF AMERICA, INC.; TYRONE M. CLARK, Plaintiffs -- Appellants,

v.

NBC UNIVERSAL, INC.; GENERAL ELECTRIC CO.; CHRIS HANSEN; STEVEN FOX ECKERT; MARIE THERESA AMOREBIETA, Defendants -- Appellees

No. 11-1042

United States Court of Appeals, Tenth Circuit

July 9, 2014

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:09-CV-00717-CMA-BNB).

John J. Walsh of Carter Ledyard & Milburn LLP, New York, New York (Thomas E. Downey, Jr. of Downey & Murray, LLC, Englewood, Colorado, with him on the brief) for Plaintiffs--Appellants.

Thomas B. Kelley of Levine Sullivan Koch & Schulz, LLP., Denver, Colorado (Hilary Lane of NBC Universal, Inc., New York, New York; Gayle C. Sproul, of Levine Sullivan Koch & Schulz, LLP, Philadelphia, Pennsylvania, with him on the brief) for Defendants--Appellees.

Before BRISCOE, Chief Circuit Judge, McKAY, and O'BRIEN, Circuit Judges.

OPINION

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O'BRIEN, Circuit Judge.

Tyrone M. Clark and his company, Brokers' Choice of America, (jointly, BCA) sued NBC Universal, Inc. (NBC) and some of its employees (collectively Dateline ),1 after it aired a Dateline 2 segment titled " Tricks of the Trade." The aired segment featured snippets of Clark taken from one of his two-day seminars for insurance brokers at " Annuity University" located on BCA's property in Colorado. With the assistance of Alabama officials, the Dateline crew was able to gain access to BCA's closed seminar. The crew surreptitiously--and according to BCA, illegally--filmed the seminar. Using a mere 112 words from the two-day seminar, the aired program depicted Clark as one who teaches insurance agents how to employ misrepresentations and other questionable tactics in order to dupe senior citizens into purchasing inappropriate annuity products. BCA says Clark's seminars (including the one filmed by Dateline ), when considered in their entirety, teach and encourage ethical conduct by presenting a balanced approach to saving and investing, and, while touting the advantages of annuities, emphasize that they are not right for everyone. BCA claims Dateline used its own

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" tricks of the trade" --innuendo coupled with very selective editing and commentary--to present Clark's statements out of context in order to create a false impression thereby defaming him. In its 42 U.S.C. § 1983 claim, BCA alleges Dateline violated its constitutional rights while acting in conjunction with the Alabama officials.

Seemingly, resolution of the defamation claim would not be particularly complicated. The judge or a properly instructed jury could view the Dateline segment as aired, compare it to what Clark said over the course of his two-day seminar and decide whether the aired program gave a false impression of his seminar; in other words, whether the segment was not substantially true. Sadly, it is not to be.

Dateline moved to dismiss the complaint. It maintained BCA failed to allege sufficient facts to plausibly establish its aired statements were false. It sought to dismiss the civil rights claims because BCA's factual allegations did not demonstrate that the help received from Alabama officials in the production of the program amounted to joint conduct. The court granted Dateline 's motion. BCA appealed. It contends the district court failed to credit its allegations as true and improperly made factual determinations to reach its conclusions. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

Dateline decided to produce a program exposing fraud in annuity sales to senior citizens. To that end, in mid-2007, Dateline producers were assisted by Alabama officials who were investigating the practices used in the sale of annuities to seniors. The officials were members of what came to be known as the Alabama Annuities Task Force, which included representatives from the Alabama Department of Insurance, the Alabama Securities Commission, and the Alabama Attorney General's Office.

Titled " Tricks of the Trade," Dateline identified Clark and BCA's " Annuity University" as a training program teaching " questionable tools of the trade." (Appellant's App'x, Vol. I at 57.) The producers wanted to film the training program with hidden cameras. Because only licensed insurance agents may attend Annuity University,3 Alabama officials agreed to provide false insurance licenses to two of the Dateline producers, Maria Amorebieta and Steven Eckert, and listed their names on the national register of insurance agents. In turn, the Dateline producers agreed not to sell insurance products and to return the licenses after the investigation. The producers attended and filmed at least part of Clark's two-day October 2007 seminar.

A. The Program

Dateline aired " Tricks of the Trade" in April 2008, using the show's signature format. The program opens with Chris Hansen introducing the subject. It proceeds to alternate between hidden-camera footage and studio interviews. The first interview subject was Leo Stulen, a senior who had purchased an equity-indexed annuity4

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without being told " he would pay stiff surrender penalties" if he needed to withdraw his investment. (Appellant's App'x, Vol. I at 51.) Stulen recounted a time when his wife became ill and they had to withdraw their money. They were required to pay a 15% surrender fee, which forced them to sell their home and choose between buying food or pills. Following Stulen's interview, Hansen states:

Join us for a ground-breaking hidden-camera investigation, as we go behind the scenes to uncover the techniques they use: inside sales meetings -- where we catch the questionable pitches; inside training sessions -- where we discover agents being taught to scare seniors; and, finally, inside senior[s'] homes to reveal the tricks some agents use to puff their credentials to make a sale.

( Id. at 52.)

Next, Dateline shows hidden camera footage of an insurance salesman giving a free " informational seminar" for invited retirees and people approaching retirement. ( Id.) Hansen is seated in the studio with Joe Borg, the Director of the Alabama Securities Commission. The two men watch a screen displaying the hidden-camera video. Hansen (as narrator) states: " The first step: scare tactics." ( Id. at 53.) The salesman asks the attendees, " Does anybody have a guess what the rating is for FDIC? . . . Even though it's backed by the government, it's still F-minus ." ( Id.) Hansen asks Borg, " Is that a scare tactic?" Borg responds, " Of course it's a scare tactic." ( Id.)

Hansen then says: " The next step: the big promise." ( Id.) Dateline returns to footage showing the salesman introducing the equity-indexed annuities as a safe investment. The program goes back to Hansen: " Finally: the clincher." ( Id.) The video shows the salesman promising the account will never lose value. Hansen says, " That's true if you keep your money invested for the length of the annuity, which invariably means years. But Joe Borg says people can lose big if you have to take your money out early." ( Id. at 54.)

The program moves to a " sting house" in Alabama where Dateline secretly filmed local insurance agents attempting to sell annuity products to seniors recruited by Dateline . The background narration intones: " There's plenty of talk about what you can gain, but the key question is: will [the agent] tell us about those big surrender penalties if you try to get your money out early?" ( Id.) After showing footage where the insurance salesman fails to discuss the penalty, the show returns to the studio where Hansen says:

We've seen some of the tactics insurance agents use to sell to seniors. The agents seem awfully slick. How did they get so good?

You are about to witness something few people have ever seen -- a school where, authorities say, insurance salesmen are being taught questionable tools of the trade. These training sessions are only open to licensed insurance agents. We don't know whether the salesmen we've met so far studied here, but the state of Alabama agreed to help us investigate by issuing insurance licenses to two Dateline producers, so we could Page 1134

attend -- and bring along our hidden cameras.

( Id. at 57.)

Dateline then runs selective footage of Clark's lecture. It shows Clark stating: " [A]nnuities are not liquid? That is baloney ." ( Id.) The voiceover introduces Clark as " the self-proclaimed king of annuity sales" who says " annuities are safe and have no risk, which are selling points especially appealing to seniors." ( Id. at 57-58.) The camera then shows Clark saying: " What I sell i[s] peace of mind ." ( Id. at 58.) Shortly thereafter, Hansen asks:

But what else is Tyrone Clark teaching?

In 2002, the state of Massachusetts accused Clark and his companies of a " dishonest scheme to deceive, coerce and frighten the elderly." Part of the evidence was the training manual in which Clark tells agents to sell to seniors by assuming they're " selling to a 12-year-old" and by hitting their " fear, anger or greed buttons." Clark settled that case without admitting any wrongdoing. And, now, his company says it's become " an industry leader" in promoting ethical conduct. But watch what our hidden cameras found, and see if you agree. Remember those scare tactics?

( Id. at 58.) Subsequent clips show Clark stating, " And I'm bringing these things up that disturb the hell out of them" ; " I bring out the stuff that -- where they can't sleep at night" ; " FDIC is insolvent. FDIC only has $1.37 per every $100 on deposit" ; and " I help my clients to protect their life savings from the nursing home and Medicaid seizure of their assets. See,...

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