Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 2014 U.S. App. LEXIS 12922, 2014 WL 3307834 (10th Cir. Colo. July 9, 2014).
Plaintiffs sued after Defendants aired a television segment featuring clips of Plaintiffs’ two-day seminars for insurance brokers hosted on Plaintiffs’ property in Colorado. Defendants’ television crew gained access to Plaintiffs’ closed seminar with the assistance of Alabama state officials who were members of the Alabama Annuities Task Force. These state officials assisted Defendants by providing false insurance licenses, as only licensed insurance agents could attend the closed seminar. Defendants’ crew filmed the seminar surreptitiously, and used a mere 112 words from the two-day seminar in an aired television program which depicted Plaintiffs as teaching insurance agents how to employ misrepresentations and other shady tactics in order to trick elderly people into buying superfluous annuity products. Plaintiffs claim that the filming was illegal, and that the seminar viewed as a whole encourages ethical practices but that Defendants used innuendo, selective editing, and commentary to present Plaintiffs’ statements out of context to create a false and defamatory impression. Plaintiffs also allege that Defendants’ acting in conjunction with state officials violated Plaintiffs’ constitutional rights. Defendants moved to dismiss the complaints on the grounds that Plaintiffs failed to allege sufficient facts to establish the falsity of the statements aired, and that Plaintiffs’ factual allegations failed to show joint conduct on the part of Defendants and Alabama state officials.
The district court granted Defendants’ motion to dismiss, and Plaintiffs appealed, arguing that the district court failed to credit its allegations as true and made improper factual determinations to reach its conclusions.
1) Whether the factual basis of plaintiff’s complaint was sufficient to state a plausible defamation claim, making “substantial truth” a question of fact for the jury and showing that the program produced a different effect upon the audience than that which would be produced by the literal truth of the matter.
2) Whether plaintiff’s complaint was required to contain facts showing probable falsity before disclosure was required of a television producer under Colorado’s newsperson’s privilege, Colo. Rev. Stat. § 13-90-119(3)(c).
3) Whether plaintiff’s factual allegations were sufficient to warrant discovery of the unedited film.
4) Whether an actionable Fourth Amendment violation occurred when television producers used false credentials supplied by Alabama officials to enter plaintiff’s property and surreptitiously videotape its seminars.
1) Yes. The factual basis of plaintiff’s complaint was sufficient to state a plausible defamation claim.
2) No. Plaintiff’s complaint was not required to contain facts showing probable falsity before disclosure was required of a television producer under Colorado’s newsperson’s privilege, Colo. Rev. Stat. § 13-90-119(3)(c).
3) Yes. Plaintiff’s factual allegations were sufficient to warrant discovery of the unedited film.
4) No. No actionable Fourth Amendment violation occurred when television producers used false credentials supplied by Alabama officials to enter plaintiff’s property and surreptitiously videotape its seminars.
1) The court reasoned that the specific facts alleged by Plaintiffs described a context substantially different than the gist of Defendants’ television program, thereby plausibly alleging that Defendants selected segments of Plaintiffs’ seminar to project a false and defamatory impression.
2) The court reasoned that the probable falsity requirement did not apply to this case because Plaintiffs would prevail on all three factors required under the statutory test to apply the requirement and a fourth non-statutory factor required by precedent. The court determined that the fourth non-statutory factor could not be proven because this case did not involve confidential sources or confidential information.
3) The court reasoned that the unedited film sought to be discovered was the best and perhaps the only evidence from which a fact-finder could determine whether Defendants’ television program gave a false impression of Plaintiffs’ seminar. Thus, the court reasoned, Plaintiffs would be greatly prejudiced in their ability to prove the defamation claim without access to the film.
4) The court reasoned that Plaintiff’s willing admission of the television personnel to a seminar was sufficient consent whether it involved state actors, agents of state actors, or joint action among state and private actors.
Affirmed in part, reversed in part, and remanded. The court of appeals affirmed the district court’s dismissal of Plaintiffs’ Fourth Amendment claim and its privacy and stigmatization claims, reversed the district court’s dismissal of the defamation claim, and remanded the case for further proceedings.
Concurring and Dissenting Opinions
There are no concurring or dissenting opinions to the court’s ruling.
By Katelynn Merkin, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.