Brokers' Choice of Am., Inc. v. NBC Universal, Inc.

Decision Date28 June 2017
Docket NumberNo. 15-1386,15-1386
Citation861 F.3d 1081
Parties 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.
CourtU.S. Court of Appeals — Tenth Circuit

G. Stephen Long, Jones & Keller, P.C., Denver, Colorado (John J. Walsh, Carter Ledyard & Milburn LLP, New York, New York, on the briefs; Nicole A. Westbrook and Lidiana Rios, Jones & Keller, P.C., Denver, Colorado, with him on the briefs), appearing for Appellants.

Thomas B. Kelley, Levine Sullivan Koch & Schulz, L.L.P., Denver, Colorado; (Gayle C. Sproul, Levine & Associates, L.L.P., Philadelphia, Pennsylvania, with him on the brief), appearing for Appellees.

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

TABLE OF CONTENTS
I. BACKGROUND...1091
B. Procedural Background...1094
1. District Court's Dismissal of Original Complaint and Stay of Discovery... 1094
2. Brokers' Choice I: District Court's Dismissal of First Amended Complaint... 1094
a. BCA's amended complaint...1094
b. BCA's motion for production of the seminar recording...1095
c. NBC's motion to dismiss...1095
4. Brokers' Choice III: District Court's Dismissal of the Amended Complaint Based on Comparison of the Episode with the Seminar Recording...1096
a. Scare tactics...1097
b. Suitability of annuities...1098
c. Misleading credentials...1098
III. MERITS OF THE DISTRICT COURT'S DISMISSAL...1104
A. Standard of Review and Analytical Considerations...1104
1. Standard of Review and Sufficiency of a Complaint...1104
2. Effect of an Exhibit to a Complaint...1105
C. Analysis...1111
1. Purpose of the Seminar...1112
2. Comparing the Gist of the Episode and the Seminar...1113
a. "Scare seniors"...1114

i. The episode and the seminar...1114

ii. BCA's arguments...1117

iii. Conclusion...1118

b. "Mislead seniors"...1118
i. The episode and the seminar...1118

1) Inflate credentials...1118

2) Deflect annuity criticisms...1120

3) Attorney General Swanson's liquidity comment...1121

ii. BCA's arguments...1123
c. "Unsuitable insurance products"...1125

i. The episode and the seminar...1125

ii. BCA's arguments...1126

1) Addressing annuity criticisms...1126

2) Suitability references...1128

3) Teaching to preserve assets...1129

iii. Conclusion...1129

3. Analysis of Dateline Episode Statements...1130
a. Statement 1...1130
b. Statements 2 and 3...1131
c. Statement 4...1131
d. Statement 5...1132
e. Statement 6...1132
f. Statement 7...1132
g. Statement 8...1134
h. Statements 9 and 10...1134
i. Statement 11...1137
j. Statement 12...1138
IV. CONCLUSION...1139

In 2007, undercover producers from NBC Universal, Inc., attended and surreptitiously recorded a seminar presented by Brokers' Choice of America to teach insurance agents how to sell annuities to seniors. NBC used excerpts and information from the seminar in a Dateline NBC episode. Brokers' Choice and its founder Tyrone Clark (collectively, "BCA") sued for defamation.

Now before this court for a second time, this appeal concerns the district court's dismissal of the amended complaint after it compared the seminar recording with the episode and concluded the Dateline program was substantially true. Exercising jurisdiction under 28 U.S.C. § 1291, and having conducted the same comparison, we affirm because the Dateline episode was not materially false.

I. BACKGROUND
A. Factual Background

Three previous decisions in this case detail the factual and procedural history: Brokers' Choice of Am., Inc. v. NBC Universal, Inc. , No. 09-CV-00717-CMA-BNB, 2011 WL 97236 (D. Colo. Jan. 11, 2011) (unpublished) ( "Brokers' Choice I "); Brokers' Choice of Am., Inc. v. NBC Universal, Inc. , 757 F.3d 1125 (10th Cir. 2014) ("Brokers' Choice II "); and Brokers' Choice of Am., Inc. v. NBC Universal, Inc. , 138 F.Supp.3d 1191 (D. Colo. 2015) ("Brokers' Choice III "). We outline the facts relevant to this appeal.

1. The BCA Seminar and NBC's Secret Recording

Brokers' Choice is an independent marketing organization in the insurance industry. Independent marketing organizations act on behalf of insurance companies to recruit independent licensed insurance agents to sell insurance products, such as annuities.1 As part of its marketing and education efforts, BCA offered classes to agents, including "Annuity University," a two-day seminar taught primarily by Mr. Clark but also including other speakers. According to BCA, Annuity University "assist[s] insurance producers to understand the many and varied features of the annuity products they market to consumers for suitable fit," and teaches attendees about the "suitability of annuity products for various potential purchasers." Am. Compl. at 7, ¶ 24, 25.2 Attendees must be licensed insurance producers.

NBC broadcasted a "Tricks of the Trade" series on its Dateline show. A 2008 episode investigated annuity sales to seniors. NBC partnered with the Alabama Annuities Task Force, which included the Alabama Department of Insurance, the Alabama Securities Commission, and the Alabama Attorney General's office. The Department issued fake insurance licenses to two of Dateline 's producers, Defendants-Appellees Steven Eckert and Marie Amorebieta, which enabled them to attend the Annuity University seminar held at BCA's Colorado headquarters on October 25-26, 2007, and surreptitiously record the lectures.3

2. The Dateline Episode

The Dateline episode aired in April 2008. A transcript of the episode is attached as an appendix to this opinion.4

The episode began with an interview of a senior citizen who claimed he had lost money by investing in an annuity because he was not told (1) the annuity "would lock up most of his money for more than a decade, which is longer than he might live" and (2) withdrawing his money early would result in "stiff surrender penalties."5 Dateline Tr. at 1. The senior explained that when his wife became ill, he needed to withdraw his cash early. Id . The money he lost because of his surrender penalty "forced him to sell his home" and to choose between buying "[p]ills or food." Id. at 1-2.

Defendant-Appellee Chris Hansen, an on-screen Dateline reporter, then previewed the rest of the episode, saying it would "go behind the scenes" to expose "how some insurance agents can take advantage" of seniors. Id. at 2. The episode would "uncover the techniques [insurance agents] 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 . Mr. Hansen narrated the rest of the episode, which alternated between hidden camera footage and in-studio commentary from law enforcement officials. The hidden camera footage came from three sources: (1) a sales seminar hosted by an insurance agent to sell annuities to prospective clients; (2) the two-day Annuity University training session for insurance agents; and (3) a sting house set up by Dateline where agents attempted to sell annuities to seniors recruited by Dateline to pose as potential clients.

The first half of the episode presented segments unrelated to BCA. The themes of this part did, however, overlap with the later Annuity University-related segments. The first half showed undercover footage of an insurance salesman giving a free "informational seminar" with potential clients. Id. at 2-4. The segment interjected in-studio commentary from Mr. Hansen and the Director of the Alabama Securities Commission, who pointed out the "scare tactics" and "big promise[s]" the salesman used to sell annuities. Id . Next, the episode showed hidden camera footage of agents making sales pitches to seniors at a sting house set up by Dateline . Id. at 4. The agents either did not mention, or avoided explanation of, surrender penalties. Id. at 4-7.

About 29 minutes into the hour-long program, Mr. Hansen transitioned to the portion on Annuity University. Mr. Hansen commented that the agents portrayed in the episode thus far "seem[ed] awfully slick" and asked: "How did they get so good?" Id. at 7. He said viewers were about to see "a school where, authorities say, insurance salesmen are being taught questionable tools of the trade," but noted that NBC did not know "whether the salesmen we've met so far studied here." Id .

The episode then excerpted clips of hidden camera footage from the two-day Annuity University seminar and interspersed commentary from Mr. Hansen and Minnesota Attorney General Lori Swanson. Id. at 7-10. The seminar footage showed Mr. Clark teaching attendees to sell annuities by using, in Mr. Hansen's words, "scare tactics" to "make [seniors] worry," and promising seniors "easy access to their money." Id. at 8-9. During this portrayal, captions with words such as "Scare Tactics" and "Nursing Home Fears" were superimposed on the screen. Dateline episode at 30:30-30:32; 31:07-31:09. The episode also described Annuity University as teaching agents to "puff up their credentials and mislead [seniors] about who the[ ] [salesmen] really are." Dateline Tr. at 9. It showed hidden...

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