Brokers' Choice of Am., Inc. v. NBC Universal, Inc., Civil Action No. 09–cv–00717–CMA–BNB

• Decision Date: 29 September 2015
• Docket Number: Civil Action No. 09–cv–00717–CMA–BNB
• Citation: 138 F.Supp.3d 1191
• Parties: Brokers' Choice of America, Inc., and Tyrone M. Clark, Plaintiffs, v. NBC Universal, Inc., General Electric Co., Chris Hansen, Steven Fox Eckert, and Marie Theresa Amorebieta, Defendants.
• Court: U.S. District Court — District of Colorado

138 F.Supp.3d 1191

Brokers' Choice of America, Inc., and Tyrone M. Clark, Plaintiffs,

v.NBC Universal, Inc., General Electric Co., Chris Hansen, Steven Fox Eckert, and Marie Theresa Amorebieta, Defendants.

Civil Action No. 09–cv–00717–CMA–BNB

United States District Court, D. Colorado.

Signed September 29, 2015

George Stephen Long, Lidiana Rios, Nicole A. Westbrook, Jones & Keller, PC, Denver, CO, John J. Walsh, Joshua E. Abraham, Carter Ledyard & Milburn LLP, New York, NY, for Plaintiffs.

Gayle C. Sproul, Levine Sullivan Koch & Schulz, LLP, Philadelphia, PA, Thomas B. Kelley, Levine Sullivan Koch & Schulz, LLP, Denver, CO, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT

CHRISTINE M. ARGUELLO

, United States District Judge

In 2007, two NBC reporters secretly attended and videotaped "Annuity University" (AU), a two-day seminar for licensed insurance brokers. AU was hosted by Plaintiff Brokers' Choice of America, Inc. (BCA), and its founder and CEO, Plaintiff Tyrone M. Clark (Clark). NBC then selected portions of this undercover footage and included it in a portion of an episode of its television show Dateline, entitled "Tricks of the Trade," concerning the questionable practices employed by insurance salesmen to sell annuities to senior citizens. Plaintiffs allege that this Dateline broadcast was defamatory because NBC's viewers would believe that Mr. Clark taught AU attendees to employ scare tactics to sell inappropriate annuity products to senior citizens—when, in fact, the seminar advocated that its attendees employ a more nuanced approach, teaching salesmen to determine whether an annuity is the right investment for a particular client, emphasizing the downsides of annuities, and advocating ethical practices. This matter is before the Court on Defendant's Motion to Dismiss, or, In the Alternative, for Summary Judgment. (Doc. # 111.)

I. BACKGROUND

The factual background of this lawsuit—including an extensive summary of the Dateline program at issue—is set forth in detail in the Tenth Circuit's opinion, Brokers' Choice of Am., Inc ., 757 F.3d 1125, 1131–1134 (10th Cir.2014)

, and will not be reiterated in full here, but is incorporated by reference. However, a brief description of this matter's current procedural posture is necessary for resolution of the instant Motion.

In 2014, the Tenth Circuit affirmed in part and reversed in part this Court's prior decision dismissing this case in its entirety. Specifically, the Tenth Circuit affirmed the Court's dismissal of Plaintiff's claims under 42 U.S.C. § 1983

, but reversed its determination that Plaintiffs failed to state a defamation claim because the "gist" of the Dateline program at issue here was "substantially true." Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d at 1138, 1149 (10th Cir.2014). In so doing, the Tenth Circuit held that this Court erred in analyzing each of Clark's statements "individually" and in deciding "with respect to each, whether or not it was substantially true," rather than employing a "global approach" that examined the "totality of the circumstances" and considered the Dateline statements in the "Tricks of the Trade" broadcast and the recordings of the two-day seminar in their entirety.¹

Id. It also explained that if the case ultimately proceeded to trial,

the aired statements would necessarily be considered as a whole and in the context of all that was said by the narrator and guests in the Dateline segment discussing Clark's seminar. Then the aired segment would necessarily be compared to the entirety of Clark's seminar presentation. If that comparison were to clearly and convincingly show the aired statements to have left viewers with a false impression of the gist of Clark's seminars...he has been defamed by Dateline , otherwise he has not.

Id.

The Tenth Circuit described the "gist" of the Dateline program as being "quite simple" and distilled it as follows: "Clark teaches insurance agents to scare and mislead seniors into buying unsuitable insurance products." Brokers' Choice of Am., Inc. , 757 F.3d at 1138

.² Plaintiffs allege that this "gist" was false, because Clark's seminar, when considered in its entirety and without Dateline 's selective editing and framing, "teach[es] and encourage[s] ethical conduct by presenting a balanced approach to saving and investing, and, while touting the advantages of annuities, emphasize[s] that they are not right for everyone." Brokers' Choice of Am. , 757 F.3d at 1131 (emphasis added). Specifically, Plaintiffs allege that:

[T]he unedited footage would show Clark teaching the downside of annuities, urging his students to probe into the customer's personal situation to determine the most suitable product, repeatedly telling students annuities are not for everyone, stressing BCA's code of ethics which require full disclosure of various advantages and disadvantages of annuity products, and promoting personal involvement in the community to gain credibility.

Id. at 1139

.

Accordingly, to decide whether Plaintiffs alleged sufficient facts to demonstrate a plausible claim for defamation, the Court must determine whether the allegations Plaintiffs made in their Complaint—i.e., that Mr. Clark's actual seminar advocated that his attendees utilize a more nuanced and ethical sales approach when selling annuities to prospective senior clients than that portrayed by Dateline in the "Tricks of the Trade" broadcast—are, in fact, borne out by the entirety of the hidden camera footage. This footage was not considered when the Court was resolving Defendants' Motion to Dismiss, nor available to the Tenth Circuit in its review of the Court's Order granting the Motion to Dismiss, as the full recordings were deemed to be statutorily protected by the Court under Colorado's Journalist Shield Law, C.R.S. § 13–90–119(3)

. Because the Tenth Circuit also reversed that portion of the Court's decision, the entirety of the hidden camera footage is now before the Court in the form of DVDs and undisputed transcripts.³ (Doc. ## 112, 130-3 and -4.)

II. ANALYSIS

A. LEGAL STANDARDS

1. CONVERSION TO SUMMARY JUDGMENT

Defendants filed the instant Motion to Dismiss alternatively as one for summary judgment; Plaintiffs argue that the Court should deny this instant Motion under Rule 12(g) of the Federal Rules of Civil Procedure

, because it is Defendant's second motion to dismiss. Accordingly, as a preliminary matter, the Court must decide whether resolution of the instant Motion is proper and also whether to convert the Motion to one of summary judgment.

Rule 12(g)(2)

provides that "a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Although Plaintiffs assert that the outtakes were "available" in support of their prior Motion to Dismiss, but that Defendants "chose to withhold production in favor of fighting an ultimately losing battle on a privilege claim" (Doc. # 130 at 26), this stretches the definition of "available" beyond the breaking point. Defendants had a good-faith argument that the statutory privilege applied, and any use of the outtakes in the prior Motion would have effectively waived it. As such, the arguments made herein were not actually "available"—nor was the required comparison actually possible before the outtakes were made available to the Court. Although the Court has been unable to find a case in which a successive Motion to Dismiss was brought after a good-faith privilege claim was reversed on appeal, Rule 12(g) is not implicated by these very unique circumstances and the denial of the Motion on such hyper-technical grounds is not warranted.

Resolution of this case requires two interrelated steps: 1) a comparison between Dateline 's portrayal of what occurred at Tyrone Clark's two-day "Annuity University" seminar and the full, unedited footage showing what actually occurred in that seminar, and 2) a determination of whether Dateline 's portrayal was "substantially true" to the entire seminar, or if it left a false impression of what actually occurred in the mind of the average Dateline viewer. See Brokers' Choice of Am ., 757 F.3d at 1132

("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.") Because the outtakes were both central to Plaintiffs' defamation claim and, given the law to be applied in this situation, independently sufficient, in and of themselves, to test the sufficiency of the Complaint, the Court need not convert the instant Motion to one of summary judgment. Indeed, Plaintiffs specifically "reserved" Exhibit A to their Amended Complaint for the hidden camera footage, and also asserted that "[t]he falsity of the context supplied by Defendants and uttered by Hansen...will be...demonstrated by Clark's actual context recorded by Defendants' hidden cameras when entered on the record as Exhibit A to this Amended Complaint." (Doc. # 39, ¶ 127.) The "raw footage" from these hidden camera recordings (which the Court will sometimes refer as "the outtakes") has been transcribed by court reporters, and neither party disputes the accuracy of these transcripts. As such, the Court considers the transcripts and compares them to the Dateline broadcast; as a matter of law, no more evidence is needed to test the sufficiency of the defamation claim, and conversion to summary judgment is not required.

2. MOTION TO DISMISS

" ‘The court's function on a Rule 12(b)(6)

motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's amended complaint alone is legally sufficient to state a claim for which relief may be granted.’ " Peterson v. Grisham , 594 F.3d 723,...