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

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 28, 2017

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

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

Plaintiffs - Appellants,

v. No. 15-1386

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

Defendants - Appellees.
_________________________________

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

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................................................................................................... 1 
A.  Factual Background ............................................................................................ 1 
1.  The BCA Seminar and NBC’s Secret Recording .............................................. 1 
2.  The Dateline Episode ....................................................................................... 3 
B.  Procedural Background ....................................................................................... 7 
1.  District Court’s Dismissal of Original Complaint and Stay of Discovery ......... 7 
2.  Brokers’ Choice I: District Court’s Dismissal of First Amended Complaint .... 8 
a.  BCA’s amended complaint ............................................................................. 8 
b.  BCA’s motion for production of the seminar recording ................................ 10 
c.  NBC’s motion to dismiss .............................................................................. 10 
3.  Brokers’ Choice II: Tenth Circuit’s Partial Reversal ..................................... 11 
4.  Brokers’ Choice III: District Court’s Dismissal of the Amended Complaint
Based on Comparison of the Episode with the Seminar Recording ................. 13 
a.  Scare tactics .................................................................................................. 15 
b.  Suitability of annuities .................................................................................. 16 
c.  Misleading credentials .................................................................................. 17 
II.  BCA’S PROCEDURAL OBJECTIONS ............................................................. 17 
A.  Law of the Case ................................................................................................ 18 
1.  Legal Background ........................................................................................... 18 
2.  Analysis .......................................................................................................... 20 
B.  Federal Rule of Civil Procedure 12(g)(2) .......................................................... 22 
1.  Legal Background ........................................................................................... 23 
2.  Analysis .......................................................................................................... 24 
C.  Consideration as a Motion to Dismiss ............................................................... 25 
1.  Legal Background ........................................................................................... 25 
2.  Analysis .......................................................................................................... 27 
III.  MERITS OF THE DISTRICT COURT’S DISMISSAL ...................................... 28 
A.  Standard of Review and Analytical Considerations .......................................... 29 
1.  Standard of Review and Sufficiency of a Complaint ...................................... 29 

-i-
 2.  Effect of an Exhibit to a Complaint ................................................................ 30 
B.  Legal Background ............................................................................................. 31 
1.  Development of Defamation Law ................................................................... 31 
2.  Material Falsity ............................................................................................... 33 
a.  Materiality .................................................................................................... 33 
b.  Words out of context .................................................................................... 35 
c.  Omitting favorable information .................................................................... 36 
d.  Context as a whole ........................................................................................ 37 
3.  The First Amendment and Colorado Defamation Law .................................... 37 
4.  Material Falsity and Substantial Truth ............................................................ 39 
C.  Analysis ............................................................................................................ 43 
1.  Purpose of the Seminar ................................................................................... 45 
2.  Comparing the Gist of the Episode and the Seminar ....................................... 48 
a.  “Scare seniors” ............................................................................................. 48 
i.  The episode and the seminar ...................................................................... 48 
ii.  BCA’s arguments ...................................................................................... 54 
iii.  Conclusion ................................................................................................. 56 
b.  “Mislead seniors” ......................................................................................... 56 
i.  The episode and the seminar ...................................................................... 56 
1)  Inflate credentials .................................................................................... 57 
2)  Deflect annuity criticisms ........................................................................ 61 
3)  Attorney General Swanson’s liquidity comment ..................................... 64 
ii.  BCA’s arguments ...................................................................................... 67 
iii.  Conclusion ................................................................................................. 70 
c.  “Unsuitable insurance products” ................................................................... 70 
i.  The episode and the seminar ...................................................................... 71 
ii.  BCA’s arguments ...................................................................................... 74 
1)  Addressing annuity criticisms.................................................................. 74 
2)  Suitability references ............................................................................... 77 
3)  Teaching to preserve assets ..................................................................... 78 
iii.  Conclusion ................................................................................................. 79 
EPISODE GIST WAS NOT MATERIALLY FALSE ............................................... 80 

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 3.  Analysis of Dateline Episode Statements ....................................................... 80 
a.  Statement 1 ................................................................................................... 81 
b.  Statements 2 and 3 ........................................................................................ 82 
c.  Statement 4 ................................................................................................... 83 
d.  Statement 5 ................................................................................................... 85 
e.  Statement 6 ................................................................................................... 86 
f.  Statement 7 ................................................................................................... 87 
g.  Statement 8 ................................................................................................... 88 
h.  Statements 9 and 10 ...................................................................................... 90 
i.  Statement 11 ................................................................................................. 95 
j.  Statement 12 ................................................................................................. 97 
IV.  CONCLUSION ................................................................................................... 98 

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 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

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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

1
An annuity is “a contract between [an investor] and an insurance company
that is designed to meet retirement and other long-range goals, under which [the
investor] make[s] a lump-sum payment or series of payments. In return, the insurer
agrees to make periodic payments to [the investor] beginning immediately or at some
future date.” Securities and Exchange Commission (“SEC”), Annuities,
https://perma.cc/5MP5-QDVA.
2
Record citations in this opinion reference five key sources: the amended
complaint (App. Vol. 1 at 19-66); the video of the Dateline episode provided by NBC
(Supp. App. at 1); the transcript of the Dateline episode provided by BCA (Dist. Ct.
Doc. 130-7); the transcripts of the two-day Annuity University seminar submitted by
BCA (Dist. Ct. Doc. 130-3 and Dist. Ct. Doc. 130-4) and supplemented by transcripts
in NBC’s supplemental appendix (Supp. App. at 100-1789); and the transcript of an
exchange between an Annuity University presenter and the Dateline producers
submitted by BCA (Dist. Ct. Doc. 130-5). For clarity, we cite directly to these
sources rather than their locations in the parties’ appendices. The seminar recording
was submitted to this court by NBC in hard copy DVDs with its supplemental
appendix. See Supp. App. at i.

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Department issued fake insurance licenses to two of Dateline’s producers,

Defendants-Appellees Steven Eckert and Marie Amorbieta, 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.

3
The NBC producers used two devices to record the seminar. According to
labels on the seminar recording DVDs, one device was attached to a producer’s
glasses and the other to a producer’s purse. See Supp. App. at i.
4
We use the episode transcript attached as Exhibit G to BCA’s amended
complaint. Dist. Ct. Doc. 39-7 (“Dateline Tr.”). NBC provided the same transcript in
its supplemental appendix on appeal. Supp. App. Vol. 1 at 60-78.
5
The SEC describes surrender charges as: “If [an investor] withdraw[s] [their]
money early from an annuity, [the investor] may pay substantial surrender charges to
the insurance company, as well as tax penalties.” SEC, Annuities,
https://perma.cc/5MP5-QDVA.

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 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.

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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 camera footage

of author and Annuity University presenter Richard Duff explaining to agents that

they could pay to have their names listed on the front of his book and write the

book’s first chapter—about five to seven pages. Id. It stated that an Annuity

University ad stated that agents could be the “author of a book called ‘Alligator

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Proofing Your Estate,’” and stated that Dateline found copies of the same “Alligator”

book co-written by several authors. Id. The episode also showed footage of speaker

Jeff Hoyle describing how agents could pay to record a pre-scripted radio show

“interviewing” the agent so the agent could later distribute the recording to impress

customers. Id. at 10.

The segment included commentary from Attorney General Swanson, who

stated Mr. Clark did “not tell[] the truth when he tells those agents that an annuity is

the most liquid place a senior citizen can put their money,” and that he provided

attendees with “loaded guns so they can walk into [a] senior’s home and rip them

off.” Id. at 9-10.

The episode next showed hidden camera footage of a salesman who graduated

from Annuity University, juxtaposing the earlier seminar excerpts of Mr. Clark with

the salesman’s pitch. Id. at 10-11. Mr. Hansen and Attorney General Swanson

criticized the Annuity University-educated salesman for glossing over surrender

penalties. Id. at 12. The episode also showed hidden camera footage of another

salesman who had “more than a dozen law suits [sic] pending” against him, but it did

not link him to Annuity University. Id. at 14.

Toward the end, the episode showed BCA’s lawyer declining an on-camera

interview. Id. at 18. It then summarized a series of letters from Mr. Clark’s lawyers.

Id. The letters criticized Dateline for going undercover, argued the episode’s quotes

were “not ‘in full context,’” stated Mr. Clark taught agents to be “honest, ethical, and

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service-oriented,” and said “it’s the ‘duty’ of an insurance agent to ‘present the facts,

both pleasant and unpleasant, to customers.’” Id.

Finally, the episode noted a settlement—unrelated to BCA—between Attorney

General Swanson’s office and a large insurance company named Allianz, and said

“other lawsuits [were] pending against Allianz and other insurance companies

nationwide.” Id.

The segments featuring or referencing BCA totaled about nine and a half

minutes, Dateline episode at 28:44-40:35; 57:58-58:52, and quoted fewer than 120

words from the seminar.

B. Procedural Background

1. District Court’s Dismissal of Original Complaint and Stay of Discovery

In March 2009, BCA and Mr. Clark (collectively, “BCA”) filed suit in the

United States District Court for the District of Colorado for defamation, trespass,

fraud, invasion of privacy, and civil rights violations under 42 U.S.C. § 1983. See

Dist. Ct. Doc. 1. The complaint invoked the district court’s diversity jurisdiction

under 28 U.S.C. § 1332 for its state law claims and relied on 28 U.S.C. § 1331 and

§ 1343 as the jurisdictional basis for its civil rights claim. Defendants NBC, General

Electric, reporter Hansen, and producers Eckert and Amorebieta (collectively,

“NBC”) moved to dismiss BCA’s complaint.

In October 2009, the district court dismissed BCA’s complaint without

prejudice. The court dismissed the defamation claim because BCA’s complaint

alleged in only conclusory terms that specific episode excerpts were falsely taken out

-7-
of context and because the complaint did not provide enough factual support to

explain “how the broadcast statements were taken out of context to such an extent as

to be rendered false.” Dist. Ct. Doc. 38 at 5. The court also dismissed BCA’s claims

for trespass, fraud, and invasion of privacy.6 Finally, the court dismissed BCA’s 42

U.S.C. § 1983 civil rights claim because it was based on conclusory allegations and

was tied to the other, already-dismissed causes of action.

The court also granted NBC’s motion to stay discovery based on Colorado’s

qualified newsperson’s privilege statute, Colo. Rev. Stat. § 13-90-119. The stay

order covered the surreptitious recording that Dateline’s producers made at Annuity

University.

2. Brokers’ Choice I: District Court’s Dismissal of First Amended Complaint

a. BCA’s amended complaint

In November 2009, BCA filed an amended complaint, re-pleading only the

defamation and § 1983 claims.7 Dist. Ct. Doc. 39; see also App. Vol. 1 at 19-66.

6
The district court dismissed BCA’s trespass claim because the NBC
producers were present only on the part of the property open to attendees, did not
disturb the seminar, did not invade a private place, and did not steal any of BCA’s
property. Dist. Ct. Doc. 38 at 20. It dismissed BCA’s fraud claim because it was
conclusory and insufficiently pled. Id. at 21. It dismissed BCA’s invasion of privacy
claim because the NBC producers attended a business seminar, where nothing
“remotely personal was discussed.” Id. at 22. Thus, NBC did not invade the solitude
or private affairs of BCA or Mr. Clark. Id.
7
BCA’s § 1983 claims alleged that Mr. Eckert and Ms. Amorebieta acted as
agents of the State of Alabama and deprived BCA of its Fourth and Fourteenth
Amendment rights. The district court dismissed the § 1983 claims in Brokers’
Continued . . .

-8-
BCA alleged the Dateline episode reported Mr. Clark’s statements out of context to

create a false impression that he advocated tactics to take advantage of seniors. Am.

Compl. at 4-5, ¶¶ 13-14. It averred that NBC recklessly and maliciously extracted

112 words from the two-day seminar and then “fram[ed] and juxtapose[ed]” those

words with false and misleading statements from Mr. Hansen to produce a program

that contained “outright lies, false implications, and misleading half-truths,” about

BCA. Id. at 43, ¶¶ 126-28.

Without access to NBC’s surreptitious recording of the October 2007 Annuity

University seminar, BCA’s amended complaint used statements from another seminar

taught by Mr. Clark in March 2007. BCA alleged all of Mr. Clark’s lectures “adhere

closely” to the same content and that the March 2007 lecture would provide “in

substance the true context of the snippets selected by Dateline and placed in the false

context Dateline created.” Id. at 22, ¶ 65. BCA’s amended complaint also reserved

“Exhibit A” for NBC’s seminar recording and stated BCA would “request the Court

to order its disclosure and placement in the record.” Id. at 5, ¶ 14.8 BCA alleged the

Choice I, and we affirmed. See Brokers’ Choice II, 757 F.3d at 1149. These claims
are not at issue in the instant appeal.
8
The amended complaint stated: “The true context of the words broadcast by
Defendants was captured on the hidden video footage currently in Defendants’
possession. Disclosure of the recording is a prerequisite to conclusively determining
the true context of Clark’s words; accordingly, Plaintiffs reserve Exhibit A to this
Amended Complaint for that footage and will request the Court to order its disclosure
and placement in the record. In the absence of disclosure of the two days of hidden
video footage, Plaintiffs must rely on other Annuity University lectures presented by
Clark to establish the true context of his words.” Am. Compl. at 5, ¶ 14.

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“falsity of the context” reported in the Dateline episode would be clear when the

episode was compared with the recording from the October 2007 Annuities

University seminar. Id. at 43, ¶ 127.

BCA also re-alleged its § 1983 civil rights claim. Id. at 44-46, ¶¶ 130-36. As

the district court summarized in Brokers’ Choice I, the main differences between the

original and amended complaints were that the latter added statements from the

March 2007 seminar and dropped the claims for trespass, fraud, and intrusion. 2011

WL 97236, at *2.

b. BCA’s motion for production of the seminar recording

Along with its amended complaint, BCA moved for production of the October

2007 Annuity University seminar recording. As before, the district court denied this

motion based on the Colorado newsperson’s privilege statute, Colo. Rev. Stat.

§ 13-90-119.

c. NBC’s motion to dismiss

NBC moved to dismiss BCA’s amended complaint. In January 2011, the

district court granted that motion and dismissed BCA’s case—this time with

prejudice.

The district court analyzed 11 statements from the Dateline episode and a

preview of the episode that BCA’s amended complaint alleged to be false and

defamatory. Brokers’ Choice I, 2011 WL 97236, at *4-9. The court compared each

statement to the factual assertions in the amended complaint. It concluded each

statement in the Dateline episode was substantially true because NBC had accurately

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reported Mr. Clark’s statements. The court dismissed BCA’s amended complaint,

including its § 1983 civil rights claim, with prejudice, and BCA appealed.

3. Brokers’ Choice II: Tenth Circuit’s Partial Reversal

On appeal, a different panel of this court affirmed dismissal of the § 1983 civil

rights claim, but reversed dismissal of the defamation claim. As to the latter, the

panel described the gist of the episode and ruled the district court had erred in its

analysis. It also determined the seminar recording was not privileged.

The panel first summarized the “gist” of the Dateline episode: “Clark teaches

insurance agents to scare and mislead seniors into buying unsuitable insurance

products.” Brokers’ Choice II, 757 F.3d at 1138.

The panel then held the district court’s statement-by-statement analysis was

insufficient. It said that “Clark cannot, and does not, deny the accuracy of the words

attributed to him in the Dateline segment.” Id. But because BCA claimed NBC

presented the statements out of context and thereby gave a false impression, the panel

held the district court should have used a more “global approach” to analyze those

statements. Id. It said “[t]he totality of circumstances must be considered,” meaning

the full Dateline episode must be compared to the entirety of Mr. Clark’s Annuity

University seminar. Id. It explained that, at trial, “[i]f that comparison were to

clearly and convincingly show the aired statements to have left viewers with a false

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impression of the gist of Clark’s seminars (were not substantially true) he has been

defamed by Dateline, otherwise he has not.” Id.9

The panel determined BCA’s amended complaint had alleged sufficient facts

to state a claim for defamation—at least on the element of falsity—because the

amended complaint alleged the seminar recording would show “a context

substantially different than the ‘gist’ of Dateline’s program.” Id. at 1139. BCA had

plausibly alleged that Dateline “selected bits and pieces” from the full seminar to

project a false impression of Mr. Clark’s presentation. Id. at 1139-40.10

The panel also reversed the district court’s privilege determination that had

denied BCA access to the seminar recording. Id. at 1140. It held the newsperson’s

privilege statute did not protect the recording from discovery because it was directly

relevant to the defamation claim, there were no alternative means to obtain the

information, and the balance of interests weighed in favor of BCA. Id. at 1141.

9
Two points of clarification: First, the issue the previous panel reviewed was
whether the Dateline episode was substantially true as to BCA, not whether it
conveyed a defamatory meaning. Second, the panel explained that substantial truth
was generally a factual question for the jury, but “[w]hen ‘underlying facts as to the
gist or sting are undisputed, [it] may be determined as a matter of law.’” Brokers’
Choice II, 757 F.3d at 1137 (quoting Lundell Mfg. Co. v. Am. Broad. Cos., 98 F.3d
351, 360 (8th Cir. 1996)).
10
BCA alleged that “the 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.

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4. Brokers’ Choice III: District Court’s Dismissal of the Amended Complaint
Based on Comparison of the Episode with the Seminar Recording

After remand to the district court, NBC filed its second motion to dismiss the

amended complaint, or, in the alternative, for summary judgment. With its motion,

NBC provided the seminar recording and a transcript thereof. The recording became

Exhibit A to the amended complaint.

The district court, following this court’s direction, said it would use the

seminar recording to determine whether the Dateline episode was substantially true.

Brokers’ Choice III, 138 F. Supp. 3d at 1196. In other words, to decide whether the

amended complaint plausibly alleged material falsity, the district court evaluated

whether the gist of the Dateline episode gave a false or substantially true impression

of the seminar.

In response to BCA’s contention that NBC’s second motion to dismiss should

not be heard, the district court said it was proper to rule on the motion because the

seminar recording constituted new evidence that was not available when it decided

Brokers’ Choice I. As a result, neither the law of the case doctrine nor Federal Rule

of Civil Procedure 12(g)(2) barred the motion. Brokers’ Choice III, 138 F. Supp. 3d

at 1195 n. 3, 1196. Because (1) the seminar recording was “central to [BCA’s]

defamation claim,” (2) the transcripts of the recording were “undisputed,” (3) BCA

had reserved a place in its amended complaint—Exhibit A—for the seminar

recording, and (4) the recording was “independently sufficient, in and of [itself], to

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test the sufficiency of the [amended] [c]omplaint,” the court decided the motion as

one to dismiss rather than one for summary judgment. Id. at 1196-97.11

The district court then analyzed BCA’s defamation claim, liberally citing and

bolding representative excerpts from the seminar recording, the Dateline episode,

BCA’s amended complaint, and Brokers’ Choice II. It began by describing the

“overall context” of the Annuity University seminar: each attendee had paid BCA to

learn how to sell annuities, and Mr. Clark repeatedly emphasized that his advice

would help the attendees, who were “[t]here essentially to make money,” to achieve

this goal. Id. at 1200.

After comparing the seminar recording to the Dateline episode and the

allegations in the amended complaint, the court concluded the seminar recording did

not support the “rosy picture of the seminar painted by [BCA’s] Amended

Complaint.” Id. at 1199. It concluded the episode was substantially true. BCA

could not show that “viewing the broadcast (as opposed to seeing the entire seminar)

would have a different effect on the mind of the [viewer] from that which the pleaded

truth would have produced.” Id. (quotations omitted). This conclusion resulted from

the court’s analysis of what it regarded as the three elements of the Dateline

11
See also Brokers’ Choice III, 138 F. Supp. 3d at 1197 (stating that since the
court could “consider[] the transcripts and compare[] them to the Dateline broadcast[,
it found that] as a matter of law, no more evidence [was] needed to test the
sufficiency of the defamation claim, and conversion to summary judgment [was] not
required.”).

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episode’s gist: (1) Mr. Clark’s scare tactics, (2) the suitability of annuities, and

(3) misleading credentials.12 Id. at 1202, 1205, 1213.

a. Scare tactics

The district court quoted the seminar recording to demonstrate Mr. Clark had

advocated using “scare tactics.” Id. at 1203. It referred to his telling attendees to

discover seniors’ emotional problems and then “solve” those problems by selling

them an annuity. Id. The court quoted Mr. Clark’s seminar statements, including:

 “Where’s the client’s problem? Okay. And if that’s not an emotionally based
problem, you have no sale.”

 “You uncover and you discover problems. That’s what we do. And then we
solve those problems.”

 “I bring these things out that disturb the hell out of them . . . I bring out the
stuff when they can’t sleep at night.”

Id. at 1203 (citing Recording Tr. Day 1 at 7613).

The district court also listed examples of emotional appeals Mr. Clark

suggested to influence potential clients, including the financial security of a client’s

12
The Brokers’ Choice II panel stated the gist of the Dateline episode was that
“Clark teaches insurance agents to scare and mislead seniors into buying unsuitable
insurance products.” 757 F.3d at 1138. The district court interpreted “mislead
seniors” to include only the episode’s discussion of misleading credentials. Brokers’
Choice III, 138 F. Supp. 3d at 1213. As we explain below, we find this view to be
overly narrow.
13
The recording transcripts (“Recording Tr.”) cited in this opinion are
transcripts of the surreptitious seminar recording. We cite to the transcripts
submitted by BCA as Exhibits 1B and 1C to its response to NBC’s motion to dismiss.
Dist. Ct. Doc. 130-3, 130-4. These transcripts were prepared from the seminar
recording attached to BCA’s amended complaint as Exhibit A.

- 15 -
children; the prospect of a disfavored son-in-law taking half of the inheritance from a

client; and a client being the cause of family conflict, divorce, and bankruptcy. Id.

at 1204-05 (citing Recording Tr. Day 1 at 33, 103-05).

The district court concluded the amended complaint’s allegation that the

seminar would show Mr. Clark had not spoken of misleading senior citizens with

scare tactics rang “hollow,” and that “Dateline’s portrayal of [the] seminar as

advocating the use of ‘scare tactics’ . . . was, in fact, substantially true.” Id. at 1205.

b. Suitability of annuities

The district court also found the Dateline episode’s gist that the seminar taught

agents to sell unsuitable annuities to seniors to be substantially true. Based on the

seminar recording, it noted Mr. Clark “already assumed” annuities were the “most

suitable” product for the potential client and only discussed criticisms of annuities so

attendees could learn how to deflect them and close a sale. Id. at 1207-13. It found

Mr. Clark’s “discussion” of annuity risks was only “superficial” and assumed that

these risks were not a problem. Id. at 1210. The court said that although Mr. Clark

acknowledged at the seminar that annuities might not be suitable for everyone, he

also stated those concerns “d[id] not apply to seniors” and “taught . . . attendees

problematic tactics to target seniors specifically.” Id. at 1211.

Finally, the court acknowledged Mr. Clark suggested that agents associate with

local ethics and business organizations, but observed he did so only to teach agents

“to use these organizations’ names for marketing purposes.” Id. at 1212. The court

concluded the seminar did not “specifically rebut” Dateline’s report that agents were

- 16 -
taught to “mislead seniors in selling sometimes-unsuitable products,” and that this

portion of the gist was substantially true. Id. at 1213.

c. Misleading credentials

Finally, the district court addressed whether the seminar taught agents to

mislead seniors. The court noted the Dateline episode’s assertion that Annuity

University was “part of an underground industry that helps insurance agents puff up

their credentials and mislead [consumers] about who they really are.” Id. at 1213.

Analyzing the seminar recording, it explained that speaker Jeff Hoyle encouraged

attendees to purchase “ghost-written” articles or interview spots on a “pre-scripted

radio show” that could “work to [the attendee’s] benefit” in building credibility with

clients. Id. at 1214-15. The court concluded the episode’s gist regarding misleading

credentials was substantially true in light of the seminar recording.

* * * *

Based on its comparison of the Dateline episode with the seminar recording

and BCA’s amended complaint, the district court concluded Dateline’s overall

portrayal of the seminar was “substantially true” and dismissed the case with

prejudice.14

II. BCA’S PROCEDURAL OBJECTIONS

We first consider BCA’s procedural challenges to the district court’s

consideration of NBC’s latest motion to dismiss. Because this is a diversity case, we

14
The court noted it dismissed without granting leave to amend because
further amendment would be futile.

- 17 -
apply federal law to procedural questions and apply the substantive law of the forum

state, Colorado, to analyze the underlying claims. See Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 427 (1996); Hill v. J.B. Hunt Transp., Inc., 815 F.3d

651, 667 (10th Cir. 2016).

BCA presents three procedural challenges on appeal: (1) the panel decision in

Brokers’ Choice II barred the district court’s consideration of NBC’s motion to

dismiss under the law of the case doctrine; (2) Federal Rule of Civil Procedure

12(g)(2) barred the motion; and (3) the motion, if considered at all, should have been

analyzed as a motion for summary judgment. We reject each of these arguments.

A. Law of the Case

BCA argues, based on the law of the case doctrine, that the district court

should not have considered NBC’s motion to dismiss. This argument lacks merit.

1. Legal Background

The law of the case doctrine generally provides that “when a court decides upon a

rule of law, that decision should continue to govern the same issues in subsequent stages

in the same case.” United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)

(quotations omitted) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). An

appellate court decision on a particular issue, unless vacated or set aside, governs the

issue during all later stages of the litigation in the district court and thereafter on any

further appeal. Id. at 115-16. In practice,

[W]hen a case is appealed and remanded, the decision of the appellate court
establishes the law of the case and it must be followed by the trial court on
remand. If there is an appeal from the judgment entered after remand, the

- 18 -
 decision on the first appeal establishes the law of the case to be followed on
the second.

Id. at 116 (quoting 1B Moore’s Federal Practice ¶ 0.404[1] at 119 (2d ed. 1991) (footnote

omitted)).15

The doctrine does not apply when: (1) substantially different, new evidence has

been introduced; (2) later, contradictory controlling authority exists; or (3) the original

order is clearly erroneous. Bishop v. Smith, 760 F.3d 1070, 1086 (10th Cir. 2014);

Monsisvais, 946 F.2d at 117 (citing Major v. Benton, 647 F.2d 110, 112 (10th Cir.

1981)). The first exception is inapplicable when the producing party had the evidence “in

its possession, but failed to produce [it]” during the first proceeding. Monsisvais, 946

F.2d at 117.16

We review de novo whether the law of the case doctrine applies. Vehicle Mkt.

Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016).

15
The doctrine does not apply to dicta—statements in an opinion that are
unnecessary for its disposition. Bishop v. Smith, 760 F.3d 1070, 1083 (10th Cir.
2014).
16
For example, we denied application of the “different or new evidence”
exception when the producing party chose not to produce at the first proceeding:
‘“[t]here is nothing in the record to indicate that the evidence produced at the hearing
after remand was unavailable to the taxpayers during the first trial. The taxpayers
simply chose not to produce that evidence. They chose their trial strategy, litigated
accordingly, and lost. They are not now entitled to resurrect a previously abandoned
issue.’” United States v. Monsisvais, 946 F.2d 114, 117 (10th Cir. 1991) (quoting
Baumer v. United States, 685 F.2d 1318, 1321 (10th Cir. 1982)).

- 19 -
2. Analysis

BCA first argues that, under the law of the case doctrine, the district court

should not have addressed NBC’s motion to dismiss. BCA relies on Brokers’ Choice

II’s quote that the “issue of substantial truth is an issue of fact best resolved by

summary judgment after discovery or before a jury.” Brokers’ Choice II, 757 F.3d at

1137 n.8. But BCA overlooks critical language from Brokers’ Choice II: “When

‘underlying facts as to the gist or sting are undisputed, substantial truth may be

determined as a matter of law.”’ Id. at 1137 (quoting Lundell Mfg. Co. v. Am. Broad.

Cos., 98 F.3d 351, 360 (8th Cir. 1996)). We have previously said that “if, as a matter

of law, the complaint . . . is insufficient, a motion to dismiss is proper.” Torres v.

First State Bank of Sierra Cty., 550 F.2d 1255, 1257 (10th Cir. 1977); see Fed. R.

Civ. P. 12(b)(6); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (“The

legal sufficiency of a complaint is a question of law. . . .”).17

17
See also Ramsey v. Fox News Network, LLC, 351 F. Supp. 2d 1145, 1154
(D. Colo. 2005) (applying Colorado law and resolving defamation action on a motion
to dismiss); Stump v. Gates, 777 F. Supp. 808, 825-26 (D. Colo. 1991) (same), aff’d,
986 F.2d 1429 (10th Cir. 1993); Henderson v. Times Mirror Co., 669 F. Supp. 356,
362 (D. Colo. 1987) (same).
Although federal law governs the procedural questions in this case, the
Colorado Court of Appeals also recently recognized that the substantive issue of truth
or falsity may be resolved in a defamation action on a motion to dismiss. Fry v. Lee,
No. 12CA1575, 2013 WL 3441546, at *5 (Colo. App. June 20, 2013) (“[P]rompt
resolution of defamation actions, by summary judgment or motion to dismiss, is
appropriate. Such a motion to dismiss for failure to state a claim can be granted on
the basis that the challenged publication was substantially true.” (citations omitted)),
cert. denied sub nom., Fry v. Denver Post LLC, No. 13SC676, 2014 WL 1356853
(Colo. Apr. 7, 2014).

- 20 -
 BCA also argues that Brokers’ Choice II’s determination that BCA’s amended

complaint stated a plausible defamation claim forms the law of the case and

precludes NBC from again challenging the legal sufficiency of BCA’s same factual

allegations. But this argument is again misguided.18

First, the law of the case only “continue[s] to govern the same issues in

subsequent stages in the same case.” Monsisvais, 946 F.2d at 115 (emphasis added).

But here, the district court did not consider the same issue on remand as before.

BCA effectively amended its operative complaint when it received the once-

privileged seminar recording from NBC and inserted that recording as Exhibit A.

The insertion had a legally significant effect on the amended complaint: if there is

any dispute between the allegations in the complaint and the content of the attached

exhibit, the exhibit controls. See Olpin v. Ideal Nat'l Ins. Co., 419 F.2d 1250, 1255

(10th Cir. 1969). The issue before the district court—evaluating the legal sufficiency

of BCA’s amended complaint—changed when the underlying complaint changed.

Second, the addition of the seminar recording to BCA’s amended complaint

qualifies as new evidence, precluding application of the law of the case doctrine. On

NBC’s earlier motions to dismiss, neither the district court nor the parties considered

18
BCA again overlooks critical language from Brokers’ Choice II. The panel
instructed that the district court should have conducted a “more global approach” in
evaluating BCA’s amended complaint. 757 F.3d at 1138. The panel stated that “[at
trial] the aired segment would necessarily be compared to the entirety of Clark’s
seminar presentation,” and it remanded for “further proceedings consistent with this
judgment.” Id. at 1149. The Brokers’ Choice II panel contemplated that further
proceedings would necessarily require the district court to compare the episode and
the recording.

- 21 -
the recording because the district court had stayed discovery of it based on the

Colorado newsperson’s privilege statute. When this court reversed that ruling and

NBC was required to produce the recording, Brokers’ Choice II, 757 F.3d at 1143,

BCA added it to its complaint as new evidence. Although “previously-available

evidence often cannot be used to unsettle law of the case,” Bishop, 760 F.3d at 1087,

the seminar recording was not previously available because it was, by order of the

district court, privileged material. It became available only when this court held that

the privilege should not apply. Brokers’ Choice II, 757 F.3d at 1143. Although NBC

had possession of the recording and could have waived the privilege and used the

recording in support of its first motion to dismiss, Colo. Rev. Stat. § 13-90-119(4)

(explaining that the privilege may be waived by disclosure), BCA has produced no

authority to suggest this possibility should preclude the new-evidence-law-of-the-

case exception. To do so would penalize the exercise of a privilege established by

the Colorado legislature.

We have said that law of the case “is not an inexorable command, but is to be

applied with good sense.” Monsisvais, 946 F.2d at 117. The district court exercised

good sense in considering NBC’s motion to dismiss after NBC produced the seminar

recording to BCA.

B. Federal Rule of Civil Procedure 12(g)(2)

BCA argues the district court erred in considering NBC’s motion to dismiss

because Rule 12(g)(2) prevents a party from raising a defense or objection that was

available to the party but omitted in its earlier motion to dismiss. Because the

- 22 -
seminar recording was available but omitted from NBC’s earlier motions to dismiss,

BCA contends NBC’s assertion of substantial truth based on that recording is waived.

We disagree.

1. Legal Background

Rule 12(g)(2) states: “Except as provided in Rule 12(h)(2) . . . a party that

makes a motion under [Rule 12] 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.” Rule 12(h)(2) provides an exception: a motion for “[f]ailure to state a

claim upon which relief can be granted . . . may be raised: . . . by a motion under

Rule 12(c).” Under Rule 12(c), a party may move for judgment on the pleadings

after the pleadings are closed, but early enough not to delay trial.

In other words, “although Rule 12(g)(2) precludes successive motions under

Rule 12, it is expressly subject to Rule 12(h)(2), which allows parties to raise certain

defenses, including the failure to state a claim upon which relief may be granted . . .

by a motion for judgment on the pleadings under Rule 12(c).” Albers v. Bd. of Cty.

Comm’rs of Jefferson Cty., Colo., 771 F.3d 697, 701 (10th Cir. 2014); see also 5C

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1385

(3d ed., Apr. 2017 update) (“However, even though a Rule 12(b) motion has been

made and a second Rule 12(b) motion is not permitted, the three defenses listed in

- 23 -
Rule 12(h)(2) may be raised on a motion under Rule 12(c) for judgment on the

pleadings. . . .”). 19

Further, because we use the same de novo standard of review “when

evaluating 12(b)(6) and 12(c) motions . . . our decision [on the successive 12(b)(6)

motion] would be the same whether considered as a 12(b)(6) motion or a 12(c)

motion.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002).

2. Analysis

The district court correctly considered NBC’s motion for two reasons.

First, BCA effectively amended its complaint by adding the seminar recording

as Exhibit A. NBC’s instant motion to dismiss was thus a permissible response to

that amended complaint. See, e.g., Kaplan v. Reed, 28 F. Supp. 2d 1191, 1199

(D. Colo. 1998) (considering a third round of motions to dismiss by defendants in

response to plaintiffs’ second amended complaint); Pioneer Craft House, Inc. v. City

of S. Salt Lake, No. 2:13-cv-705, 2016 WL 843274, at *1 (D. Utah Mar. 1, 2016)

(unpublished) (considering and granting defendant’s second motion to dismiss in

response to plaintiff’s amended complaint).

Second, the court’s consideration of NBC’s motion was proper under Rule

12(g)(2) and Rule 12(h)(2) because the court could have considered the motion as a

motion for judgment on the pleadings under Rule 12(c). Albers, 771 F.3d at 701;

19
Rule 12(h)(2) lists the following three defenses: failure to (1) “state a claim
upon which relief can be granted”; (2) “to join a person required by Rule 19(b)”; and
(3) “to state a legal defense to a claim” (emphasis added).

- 24 -
Lipari v. U.S. Bancorp NA, 345 F. App’x. 315, 317 (10th Cir. 2009) (unpublished)20

(“Rule 12(g)(2) specifically provides that a party may file a motion for failure to state

a claim under Rule 12(c), and the district court permissibly treated [the defendant’s]

second Rule 12(b)(6) motion as though it had been styled under Rule 12(c).”).21

C. Consideration as a Motion to Dismiss

BCA argues the district court erroneously considered NBC’s motion as a

motion to dismiss because the court “employed analytical tools” available only to

consider a Rule 56 summary judgment motion. It argues the court erred by weighing

evidence, resolving disputed issues of material fact, and failing to view disputed facts

in the light most favorable to BCA. We reject BCA’s arguments.

1. Legal Background

A motion to dismiss challenging the legal sufficiency of the complaint is

properly considered under Rule 12(b)(6) if the court analyzes only the complaint

20
Although not precedential, we find the reasoning of the unpublished cases
cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”); see also Fed. R. App.
P. 32.1.
21
We reject BCA’s argument that NBC waived its “substantial truth” defense
based on the seminar recording by raising it and submitting the recording for the first
time in this motion. This argument is factually inaccurate because NBC asserted its
“substantial truth” defense in each of its prior motions to dismiss. See App. at 87
(Motion to Dismiss the Amended Complaint); Dist. Ct. Doc. 10 (original Motion to
Dismiss). We also reject the argument because the motion was properly considered
under Rules 12(g)(2) and 12(h)(2). See Albers, 771 F.3d at 701 (rejecting waiver
argument and allowing consideration of new theory supporting defense of failure to
state a claim where second Rule 12(b)(6) motion to dismiss could be considered
under Rules 12(g)(2) and 12(h)(2)).

- 25 -
itself. See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (“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 complaint alone is legally

sufficient to state a claim for which relief may be granted.”). When a party presents

matters outside of the pleadings for consideration, as a general rule “the court must

either exclude the material or treat the motion as one for summary judgment.”

Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004) (quoting Nichols v.

United States, 796 F.2d 361, 364 (10th Cir. 1986)). A district court may, however,

consider documents attached to or referenced in the complaint if they “are central to

the plaintiff’s claim and the parties do not dispute the documents’ authenticity.”

Jacobsen, 287 F.3d at 941 (citing GFF Corp. v. Assoc’d Wholesale Grocers, Inc.,

130 F.3d 1381, 1384 (10th Cir. 1997)).22

[C]onversion to summary judgment when a district court considers outside
materials is to afford the plaintiff an opportunity to respond in kind. When a
complaint refers to a document and the document is central to the plaintiff's
claim, the plaintiff is obviously on notice of the document’s contents, and
this rationale for conversion to summary judgment dissipates.

GFF Corp., 130 F.3d at 1384.

22
See also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (“In
evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the
complaint itself, but also attached exhibits and documents incorporated into the
complaint by reference.” (citations omitted)); Pace v. Swerdlow, 519 F.3d 1067,
1072-73 (10th Cir. 2008) (citing Utah Gospel Mission v. Salt Lake City Corp., 425
F.3d 1249, 1253-54 (10th Cir. 2005) (“We have recognized however, that a document
central to the plaintiff’s claim and referred to in the complaint may be considered in
resolving a motion to dismiss, at least where the document’s authenticity is not in
dispute.”)).

- 26 -
 We review for abuse of discretion a district court’s refusal to convert a Rule

12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment. Lowe v.

Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998). When presented with

a Rule 12(b)(6) motion, the district court has broad discretion in determining whether

to accept materials beyond the pleadings. Id. (citing 5A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1366 (1990)).

2. Analysis

BCA’s arguments miss the mark.

First, the district court properly considered NBC’s motion as one to dismiss

the amended complaint. As the Brokers’ Choice II panel stated, when “underlying

facts as to the gist or sting are undisputed, substantial truth may be determined as a

matter of law.” 757 F.3d at 1137 (quoting Lundell Mfg. Co., 98 F.3d at 360). Thus,

material falsity may be analyzed under a Rule 12(b)(6) motion to dismiss or a Rule

56 motion for summary judgment. Whether a Rule 12(b)(6) motion to dismiss should

have been converted into a Rule 56 motion for summary judgment turns on the

materials considered by the district court. See Alexander, 382 F.3d at 1214. On

remand, the district court considered only the pleadings, the seminar recording, and

the Dateline episode. See generally Brokers’ Choice III, 138 F. Supp. 3d 1191. The

seminar recording and the episode were (1) attached to or referenced in the amended

complaint, (2) central to BCA’s claim, and (3) undisputed as to their accuracy and

authenticity. See id. at 1196-97. The only materials needed to evaluate material

falsity in this case could therefore be considered in ruling on a 12(b)(6) motion.

- 27 -
Jacobsen, 287 F.3d at 941. The district court did not abuse its discretion and

properly considered NBC’s motion as a Rule 12(b)(6) motion to dismiss. See Fry v.

Lee, No. 12CA1575, 2013 WL 3441546, at *5 (Colo. App. June 20, 2013) (“[A]

motion to dismiss for failure to state a claim can be granted on the basis that the

challenged publication was substantially true.”), cert. denied sub nom., Fry v. Denver

Post LLC, No. 13SC676, 2014 WL 1356853 (Colo. Apr. 7, 2014).

Second, we need not address BCA’s alleged errors regarding the district

court’s analytical tools because our review is de novo. TMJ Implants, Inc. v. Aetna,

Inc., 498 F.3d 1175, 1181 (10th Cir. 2007) (“[B]ecause our review is de novo, we

need not concern ourselves with” contentions that the district court resolved issues of

fact against the non-movant and ignored issues of disputed material fact).

III. MERITS OF THE DISTRICT COURT’S DISMISSAL

We next address BCA’s contention that the district court erred in dismissing

the amended complaint because it wrongly concluded the Dateline episode was

substantially true. As previously stated, because this is a diversity case, we apply

federal law to procedural questions and apply the substantive law of the forum state,

Colorado, to analyze the underlying claims. See Gasperini, 518 U.S. at 427; Hill,

815 F.3d at 667. Although defamation is historically a state common law claim, the

Supreme Court has significantly limited and shaped its application based on First

Amendment considerations. See TMJ Implants, 498 F.3d at 1181.

BCA argues the district court failed to view the seminar in the light most

favorable to it and to draw all reasonable inferences in its favor. BCA asserts the

- 28 -
Annuity University seminar did not teach attendees to scare and mislead seniors into

buying unsuitable insurance products and that Dateline’s presentation to that effect

was materially false. We disagree. Having compared the Dateline episode and the

seminar recording, we conclude the gist of the episode and the statements in the

episode that BCA challenges in its amended complaint were not materially false and

affirm the district court’s dismissal.

A. Standard of Review and Analytical Considerations

1. Standard of Review and Sufficiency of a Complaint

We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint for

failure to state a claim. Jacobsen, 287 F.3d at 941. To survive a motion to dismiss

under Rule 12(b)(6), a plaintiff must plead sufficient factual allegations “to state a

claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In

other words, dismissal under Rule 12(b)(6) is appropriate if the complaint alone is

legally insufficient to state a claim. Peterson v. Grisham, 594 F.3d 723, 727 (10th

Cir. 2010).

In ruling on a motion to dismiss for failure to state a claim, “[a]ll well-pleaded

facts, as distinguished from conclusory allegations, must be taken as true,” and the

court must liberally construe the pleadings and make all reasonable inferences in

favor of the non-moving party. Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir.

- 29 -
2002) (emphasis added) (quotations omitted). As applied here, a defamation

complaint cannot couch allegations of falsity in vague, conclusory terms. Celle v.

Filipino Reporter Enters. Inc., 209 F.3d 163, 188 (2d Cir. 2000); Chapin v. Knight-

Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993).

2. Effect of an Exhibit to a Complaint

When a complaint includes an attached exhibit “[the exhibit’s] legal effect is

to be determined by its terms rather than by the allegations of the pleader.”

Droppleman v. Horsley, 372 F.2d 249, 250 (10th Cir. 1967) (quotations omitted); see

also Jacobsen, 287 F.3d at 941 (“[I]n deciding a 12(b)(6) motion, the legal effect of

the [attached documents] are determined by the [documents] themselves rather than

by allegations in the complaint.” (citing Droppleman)). This means that, although we

accept all well-pleaded allegations as true and draw all reasonable inferences in favor

of the plaintiff, if there is a conflict between the allegations in the complaint and the

content of the attached exhibit, the exhibit controls. See Jackson v. Alexander, 465

F.2d 1389, 1390 (10th Cir. 1972) (“[W]e need not accept as true . . . allegations of

fact that are at variance with the express terms of an instrument attached to the

complaint as an exhibit and made a part thereof”); Olpin, 419 F.2d at 1255; 5A

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1327 (3d

ed., Apr. 2017 update) (“[W]hen a disparity exists between the written instrument

annexed to the pleadings and the allegations in the pleadings, the terms of the written

instrument will control, particularly when it is the instrument being relied upon by

the party who made it an exhibit.”).

- 30 -
 B. Legal Background

The district court dismissed BCA’s defamation claim because it failed to

allege the episode was materially false or was not substantially true. Our review of

that ruling calls for discussion of how the truth-or-falsity issue fits in the broader

context of contemporary defamation law.

1. Development of Defamation Law

Until the Supreme Court decided New York Times Co. v. Sullivan, 376 U.S.

254 (1964), a common law claim for defamation in most states was a strict liability

tort that required proof only of publication of an unprivileged defamatory statement

about the plaintiff. Falsity and damages were presumed, truth was a defense, and

proof of fault was not required. See id. at 262-63, 267 (describing Alabama law);

Restatement (Second) of Torts § 581A, cmt. b (1977); Restatement (Second) of Torts

§ 620, cmt. c (1977); 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and

Related Problems § 2:1.1 (4th ed. 2016).23

In New York Times, the Supreme Court limited defamation liability by

developing “standards that satisfy the First Amendment.” 376 U.S. at 269. The

Court declared that a “public official” seeking “damages for a defamatory falsehood”

about his “official conduct” must prove with “convincing clarity” that the statement

23
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 348 (1974), the Supreme Court
stated the need to shield “the press and broadcast media from the rigors of strict
liability for defamation.” See also Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-
17 (1990) (recounting the development of defamation law away from strict liability).

- 31 -
was made with “actual malice”—that is, “with knowledge that [the statement] was

false or with reckless disregard of whether it was false or not.” Id. at 279-80, 285.

The “actual malice” standard—by requiring proof that the defendant published

with knowledge or reckless disregard that the statement was false—also requires

proof that the statement was false. See Garrison v. Louisiana, 379 U.S. 64, 74

(1964) (explaining New York Times requires a public official to prove “the utterance

was false”); see also Air Wisc. Airlines Corp. v. Hoeper, 134 S. Ct. 852, 861 (2014)

(“[W]e have long held that actual malice requires material falsity.”).

In Gertz v. Robert Welch, Inc., the Court said both public officials and public

figures must prove actual malice by “clear and convincing proof.” 418 U.S. 323, 342

(1974). Gertz also held that a defamation plaintiff must prove actual injury to

recover for a false and defamatory statement about a matter of public concern. Id.

at 348-49. And in Philadelphia Newspapers, Inc. v. Hepps, the Court held that in

cases involving speech about matters of public concern, the First Amendment

requires all plaintiffs—public and private—to prove falsity. 475 U.S. 767, 776

(1986).24 The plaintiff “carries the burden of showing that each allegedly defamatory

statement is materially false.” Yohe v. Nugent, 321 F.3d 35, 41 (1st Cir. 2003); see

24
The Hepps Court reserved the question of whether its holding applies to
non-media defendants, 475 U.S. at 779 n.4, a circumstance we do not face here. The
Court also has not yet expressed a view on whether the element of falsity must be
established by clear and convincing evidence or by a preponderance of the evidence.
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989).
Because we follow Colorado substantive law, the “clear and convincing” standard of
proof articulated by Colorado courts applies here.

- 32 -
also Rinsley v. Brandt, 700 F.2d 1304, 1310 (10th Cir. 1983) (explaining that

plaintiffs must “identify[] particular statements or passages that are false”).25 This

includes claims for defamation by implication. See Parks v. LaFace Records, 329

F.3d 437, 462 (6th Cir. 2003) (“As with a traditional defamation claim, a plaintiff in

a defamation-by-implication claim must establish a material falsity.”).

2. Material Falsity

The foregoing Supreme Court decisions changed the manner in which courts

treat a statement’s truth or falsity. As we said in Bustos v. A & E Television

Networks, “[w]here truth was once strictly a defense, now the plaintiff must shoulder

the burden in his case-in-chief of proving the falsity of a challenged statement if he is

a public figure or the statement involves a matter of public concern.” 646 F.3d 762,

764 (10th Cir. 2011). The following outlines key aspects of the falsity analysis.

a. Materiality

The plaintiff must show the statement is not only false, but “materially false.”

Id. at 764, 767. “The law of defamation overlooks inaccuracies and focuses on

25
Rinsley v. Brandt, 700 F.2d 1304, 1310 (10th Cir. 1983), addressed a false
light invasion of privacy action rather than a defamation action. The Colorado
Supreme Court has declined to recognize the tort of false light invasion of privacy,
“concluding that it is highly duplicative of defamation both in interests protected and
conduct averted.” Denver Pub. Co. v. Bueno, 54 P.3d 893, 894 (Colo. 2002). As we
noted in Rinsley, “[i]n most aspects . . . the two actions are similar.” 700 F.2d at
1307. It is “essential to both a false light privacy claim and a defamation claim . . .
that the matter published concerning the plaintiff is not true.” Id. (citations and
quotations omitted); see also Bueno, 54 P.3d at 899 (comparing the element of
“falsity” as set forth in the Colorado Jury Instructions and concluding that the
element “varies only slightly between the torts”).

- 33 -
substantial truth.” Schwartz v. Am. Coll. of Emergency Physicians, 215 F.3d 1140,

1146 (10th Cir. 2000). “[M]inor inaccuracies do not amount to falsity so long as the

substance, the gist, the sting, of the libelous charge [is] justified.” Masson v. New

Yorker Magazine, 501 U.S. 496, 517 (1991); accord Air Wisc. Airlines, 134 S. Ct. at

861 (quoting Masson). See Vachet v. Cent. Newspapers, Inc., 816 F.2d 313, 316 (7th

Cir. 1987) (“The ‘gist’ or ‘sting’ of the alleged defamation means the heart of the

matter in question—the hurtfulness of the utterance.”). “Unless a statement contains

a material falsehood it simply is not actionable.” Bustos, 646 F.3d at 764 (applying

Colorado law).26

For example, in Bustos, we held that reference to a prisoner as a “member”

rather than an “affiliate” of a gang was not a material falsehood. 646 F.3d at 767.27

In Rinsley, we held publishing that a child patient’s parents had sued the plaintiff

doctor when, in fact, they only consulted counsel about filing suit was an

“inaccuracy” that “was too minor to be actionable.” 700 F.2d at 1308. And in

26
See also Pan Am Sys., Inc. v. Atl. Ne. Rails & Ports, Inc., 804 F.3d 59, 68-69
(1st Cir. 2015) (“[A] statement need not be 100% true to be protected—if it is
‘substantially true,’ a defendant is safe.”); Price v. Stossel, 620 F.3d 992, 1001 (9th
Cir. 2010) (“Masson explained the common law principle that inaccuracies alone do
not render a statement false if there remains ‘substantial truth’ to what was said[;] . . .
the alteration [must] change[] the meaning in a material way.”).
27
See also Bustos, 646 F.3d at 764 (“A report that the defendant committed 35
burglaries when he actually committed 34” is not materially false. (citing Liberty
Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 n.6 (D.C. Cir. 1984))); id. (“[A] report
that mistakenly says that the plaintiff stabbed a man in Cheyenne, Wyoming when he
really stabbed a man from Cheyenne, Wyoming” is not materially false. (citing
Gomba v. McLaughlin, 504 P.2d 337, 338-39 (Colo. 1972))).

- 34 -
Schwartz, we held that a “technically inaccurate” statement that the plaintiff was

“being sued for stock fraud” was nonetheless substantially true when the plaintiff was

actually “being sued for making deceptive statements made relating to stock

transactions.” 215 F.3d at 1146-47.

“[A] statement is not considered false unless it ‘would have a different effect

on the mind of the reader from that which the pleaded truth would have produced.’”

Masson, 501 U.S. at 517 (quoting Robert Sack, Libel, Slander, and Related Problems

138 (1980)). To be material, an alleged falsehood must be “likely to cause

reasonable people to think ‘significantly less favorably’ about the plaintiff than they

would if they knew the truth.” Bustos, 646 F.3d at 765. “[A] misstatement is not

actionable if the comparative harm to the plaintiff’s reputation is real but only

modest.” Id. These passages from Bustos show that comparative harm to reputation

bears on the material falsity analysis.

b. Words out of context

The Brokers’ Choice II panel addressed another aspect of the material falsity

analysis: “[a] publisher may be liable ‘when it takes words out of context and uses

them to convey a false representation of fact.’” 757 F.3d at 1137 (quoting Dixson v.

Newsweek, Inc., 562 F.2d 626, 631 (10th Cir. 1977). Thus, “an exact quotation taken

out of context can distort meaning, although the speaker did use each reported word.”

Masson, 501 U.S. at 515; see also Turner v. KTRK Television, Inc., 38 S.W. 3d 103,

115 (Tex. 2000) (collecting federal and state cases and explaining that “while all the

statements in a publication may be true when read in isolation, the publication may

- 35 -
nevertheless convey a substantially false and defamatory impression by omitting

material facts or suggestively juxtaposing true facts”).28

c. Omitting favorable information

The omission of additional favorable information from an otherwise true

publication does not render a statement materially false. “[T]he First Amendment

prohibits a rule that holds a media defendant liable for broadcasting truthful

statements and actions because it failed to include additional facts which might have

cast plaintiff in a more favorable or balanced light.” Corp. Training Unlimited, Inc.

v. Nat’l Broad. Co., Inc., 981 F. Supp. 112, 122 (E.D.N.Y. 1997) (quotations

omitted) (citing Machleder v. Diaz, 801 F.2d 46, 55 (2d Cir. 1986), cert. denied, 479

U.S. 1088 (1987)). Thus, “[a]s long as the matter published is substantially true, the

defendant [is] constitutionally protected from liability [based on falsity], regardless

of its decision to omit facts that may place the plaintiff under less harsh public

scrutiny.” Goodrich v. Waterbury Republican-American, Inc., 448 A.2d 1317, 1331

(Conn. 1982).

28
See also Turner, 38 S.W. 3d at 115 (“[T]he omission of material facts or
misleading presentation of true facts . . . can render an account just as false as an
outright misstatement. . . . [T]he literal truth of each individual statement is not a
defense in such cases.”); id. (permitting liability for the “publication that gets the
details right but fails to put them in the proper context and thereby gets the story’s
‘gist’ wrong”).

- 36 -
 d. Context as a whole

As stated in Brokers’ Choice II, determining whether a publication is

materially false requires examination of the published statements in context, not in

isolation. 757 F.3d at 1138; see also Karedes v. Ackerley Grp., Inc., 423 F.3d 107,

114 (2d Cir. 2005) (“As to falsity, the accuracy of the report should be assessed on

the publication as a whole, not isolated portions of it[.]” (brackets and quotations

omitted)).29 This is because, “[w]hile statements may appear to be true when viewed

in isolation, we consider the entire context to determine if a false impression is

projected[.]” Brokers’ Choice II, 757 F.3d at 1137. As we stated in Rinsley,

however, “[t]he proscription against reading statements out of context does not

relieve a plaintiff from identifying particular statements or passages that are false.”

Id. at 1310. Courts may still “examin[e] the particular statements identified as

objectionable for their truth or falsity . . . as long as the court reads them in context.”

Id.

3. The First Amendment and Colorado Defamation Law

As outlined above, New York Times and its progeny relied on the First

Amendment to add “actual malice” as an essential element of a defamation claim

29
See also Colo. Jury Instr., Civil 22:11 (April 2016) (“In determining the
meaning of a statement . . . you must consider the [broadcast] as a whole. You must
not dwell upon specific parts of the [broadcast].”); Price, 620 F.3d at 1002
(explaining that to follow Masson, the proper analysis must “compare[] the meaning
conveyed by the [c]lip as broadcast with the meaning of [the plaintiff’s] own words
in the context of the sermon he actually delivered”).

- 37 -
when the defendant is a public official or public figure and “material falsity” when

the alleged misstatement is a matter of public concern. Colorado law goes further.

For statements relating to matters of public concern,30 all plaintiffs, public or private,

must prove actual malice, see Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d

1103, 1105-06 (Colo. 1982); Quigley v. Rosenthal, 327 F.3d 1044, 1058 (10th Cir.

2003), and they must prove the defamatory statement is materially false by “clear and

convincing evidence,” see Bustos, 646 F.3d at 764 (citing Smiley’s Too, Inc. v.

Denver Post Corp., 935 P.2d 39, 41 (Colo. App. 1996)); McIntyre v. Jones, 194 P.3d

519, 524 (Colo. App. 2008). See also Colo. Jury Instr., Civil 22:2, 22:13 (Apr.

2016).31

Accordingly, under the First Amendment and Colorado law, a defamation

plaintiff must prove that a statement involving a matter of public concern was:

(1) Defamatory,

(2) Materially false,

(3) Concerned the plaintiff,

(4) Published to a third party,

30
A matter is of public concern “whenever it embraces an issue about which
information is needed or is appropriate, or when the public may reasonably be
expected to have a legitimate interest in what is being published.” Spacecon
Specialty Contractors, LLC v. Bensinger, 713 F.3d 1028, 1035 (10th Cir. 2013)
(quoting Williams v. Cont’l Airlines, Inc., 943 P.2d 10, 17 (Colo. App. 1996)).
31
Wade v. Olinger Life Ins. Co., 560 P.2d 446, 452 n.7 (Colo. 1977) (“In the
absence of authority to the contrary, the legal principles [articulated] in the [Colorado
Jury Instructions] should be considered persuasive.”).

- 38 -
 (5) Published with actual malice, and

(6) Caused actual or special damages.32

See Fry, 2013 WL 3441546, at *4; Han Ye Lee v. Colorado Times, Inc., 222 P.3d

957, 961 (Colo. App. 2009) (citing, among others, Williams v. Dist. Court, 866 P.2d

908, 911 n.4 (Colo. 1993)); see also Colo. Jury Instr., Civil 22:2 (April 2016).

4. Material Falsity and Substantial Truth

This appeal concerns only the material falsity element. Both the district court

and the Brokers’ Choice II panel have varied between describing the issue as whether

the Dateline episode was false or whether it was true.33 Substantial truth, not

32
After Gertz, states may permit recovery of presumed or punitive damages in
a case involving a matter of public concern only when the plaintiff has proved actual
malice. 418 U.S. at 349; see also Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U.S. 749, 751, 756 (1985) (plurality). A defamation plaintiff is otherwise
limited to compensation for “actual injury.” Id. at 349. Although Gertz did not
define “actual injury” and reserved the framing of “appropriate jury instructions” to
trial courts, the Court noted that “actual injury” includes “impairment of reputation”
and “personal humiliation, and mental anguish and suffering” in addition to “out-of-
pocket” loss. Id. at 349-50.
Consistent with Gertz, plaintiffs asserting a defamation claim under Colorado
law regarding a matter of public concern must prove “actual damage” when the
publication is libel per se—libelous on the publication’s face—and “special
damages” when it is libel per quod—libelous based on extrinsic facts. Colo. Jury
Instr., Civil 22:1 (Apr. 2016); id. at 22:2; see also Keohane v. Stewart, 882 P.2d
1293, 1304 (Colo. 1994) (per se); Gordon v. Boyles, 99 P.3d 75, 79 (Colo. App.
2004) (per quod).
We do not delve further into defamation damages because doing so is not
necessary for purposes of this appeal.
33
See Brokers’ Choice II, 757 F.3d at 1132 (explaining the court must “decide
whether the aired program gave a false impression of [Mr. Clark’s] seminar; in other
words, whether the segment was not substantially true”); id. at 1138 (explaining that
BCA would be defamed if the comparison “show[ed] the aired statements to have left
Continued . . .

- 39 -
absolute or literal truth, is the standard for the affirmative defense of truth to a

defamation claim—“it is sufficient if the substance, the gist, the sting, of the matter is

true.” Gomba v. McLaughlin, 504 P.2d 337, 338-39 (Colo. 1972); see also Vachet v.

Cent. Newspapers, Inc., 816 F.2d 313, 316 (7th Cir. 1987) (“The ‘gist’ or ‘sting’ of

the alleged defamation means the heart of the matter in question—the hurtfulness of

the utterance.”). But, as explained above, the First Amendment, as applied in New

York Times, Gertz, Hepps, and Masson, requires the plaintiff to prove material

falsity, which is now accordingly an essential element of a defamation claim. Bustos,

646 F.3d at 764 (“Where truth was once strictly a defense, now the plaintiff must

shoulder the burden in his case-in-chief of proving the falsity of a challenged

statement if he is a public figure or the statement involves a matter of public

concern.”).

The distinction between material falsity and substantial truth affects the

allocation of the burden of proof. Although defendants bear the burden of showing

substantial truth to establish the affirmative defense, see Gomba, 504 P.2d at 339

(quoting Colorado jury instructions), plaintiffs must prove material falsity as part of

their case-in-chief, and in Colorado they must do so by clear and convincing

viewers with a false impression of the gist of Clark’s seminars (were not substantially
true)”); Brokers’ Choice III, 138 F. Supp. 3d at 1215 (concluding “the comparison
did not . . . show the aired statements would have left viewers with a false impression
of the gist of Clark’s seminars. Instead, Dateline’s portrayal of what occurred at the
seminar was, in fact, ‘substantially true’”); id. at 1203 (describing BCA as arguing
that the episode was “substantially false”).

- 40 -
evidence.34 Bustos, 646 F.3d at 764; McIntyre, 194 P.3d at 524. This allocation may

matter at trial, Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1155 (10th Cir.

2012) (stating that “burdens of proof are almost always crucial to the outcome of the

trial” (quotations omitted)), and at summary judgment, see Anderson v. Liberty

Lobby, 477 U.S. 242, 255 (1986) (explaining that a defamation plaintiff’s heightened,

clear and convincing burden at trial is relevant to a summary judgment

determination); Bustos, 646 F.3d at 764 (considering the clear and convincing

standard in review of summary judgment).

Here, however, we review the district court’s Rule 12(b)(6) dismissal of

BCA’s amended complaint. As we stated in Brokers’ Choice II, BCA would bear the

burden at trial of showing by clear and convincing evidence that the Dateline

program was materially false as to them. 757 F.3d at 1138 (explaining that at trial

“[i]f 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 (were not

substantially true) he has been defamed by Dateline, otherwise he has not.”). But we

do not need to consider whether that burden should affect our analysis. “The essence

of [the] inquiry . . . remains the same whether the burden rests upon [the] plaintiff or

defendant.” Masson, 501 U.S. at 517. Our de novo review of NBC’s challenge to

the amended complaint compares the recording of the Annuity University seminar

34
As one commentator succinctly put it, “the [Supreme] Court has switched
the burden of proof on falsity.” David A. Anderson, Is Libel Law Worth Reforming?,
140 U. Pa. L. Rev. 487, 504 (1991).

- 41 -
with the Dateline program and leads us to conclude that the program was not

materially false without having to take into account at this procedural posture that the

law allocates to the plaintiff the burden of proving falsity by clear and convincing

evidence.

In that limited sense, we agree with Plaintiffs’ counsel, who said at oral

argument that it makes no difference whether we address the issue presented here as

whether the Dateline program was materially false or substantially true. Oral Arg. at

1:43-2:59; see Fry, 2013 WL 3441546, at *11-12 (affirming dismissal of a

defamation claim based on substantial truth and failure to plead material falsehood);

see also Masson, 501 U.S. at 517 (“The essence of the inquiry . . . remains the same

whether the burden rests upon plaintiff or defendant.”).35 Accordingly, the law on

what constitutes material falsity guides our analysis.

* * * *

In sum, the statements at issue in the Dateline episode, when viewed in

context, must be materially false to be actionable. That means: (1) “minor

inaccuracies” do not count, Masson, 501 U.S. at 517; (2) the episode must be “likely

to cause reasonable [viewers] to think ‘significantly less favorably’ about the

plaintiff[s] than they would if they knew” what was actually presented at the Annuity

University seminar, Bustos, 646 F.3d at 765; and (3) if a “misstatement” from the

35
See also Pardo v. Simons, 148 S.W. 3d 181, 186 (Tex. App. 2004) (“Courts
use the ‘substantial truth’ test to determine whether a statement is false”).

- 42 -
episode caused only “modest [reputational] harm,” it is not actionable, id. at 765. We

call this the “Masson/Bustos standard” in the remainder of this opinion.

C. Analysis

With this legal framework in mind, we proceed to address whether BCA’s

amended complaint sufficiently alleged that the statements of public concern in the

Dateline episode were materially false.36 To do so, we compare the Dateline episode

with the Annuity University seminar.

In Brokers’ Choice II, the panel said the Dateline episode must be evaluated as

a whole and compared with the full context of the seminar. 757 F.3d at 1138. The

panel said the “gist” of the episode was that “Clark teaches insurance agents to scare

and mislead seniors into buying unsuitable insurance products,” id., and the question

is whether the gist is substantially true when compared with the seminar, id. at 1132.

Our analysis proceeds in three parts.

First, as the district court did, we examine the seminar recording to determine

the purpose of the seminar. Although the seminar may have had more than one

purpose, we think a main purpose was to teach agents how to sell annuities to seniors

and become wealthy. This purpose is a significant part of the context of the seminar

and is consistent with the gist of the episode.

36
As we explained in Brokers’ Choice II, “[t]he district court concluded the
Dateline program addressed an issue of public concern; BCA does not challenge the
conclusion in this appeal.” 757 F.3d at 1136 n.7. The district court made the same
finding in Brokers’ Choice III, 138 F. Supp. 3d at 1197, and BCA similarly does not
challenge that conclusion in the present appeal.

- 43 -
 Second, we compare the gist of the episode to the seminar.37 The Brokers’

Choice II panel called for this approach, which was also followed in this court’s

Bustos decision. See 646 F.3d at 767 (“We must . . . compare [the broadcast’s]

statement against the truth of the matter.”). Our analysis breaks the gist into three

elements—teaching agents to (1) scare and (2) mislead seniors into (3) buying

unsuitable annuities. As to each gist element, and recognizing that the elements

overlap, we examine the episode’s statements from which the element is drawn to

inform our comparison of the gist with the seminar. This exercise shows the episode

was not materially false.

Third, we consider the particular statements from the episode that BCA alleged

are false and defamatory. We address whether they are materially false by examining

them in the context of both the episode and the seminar. This analysis is necessary to

ensure we have considered all the allegations in the amended complaint. Doing so is

consistent with Brokers’ Choice II and the approach followed in the Supreme Court’s

Masson decision. See also Celle, 209 F.3d at 187-89; Chapin, 993 F.2d at 1093-98;

37
Like the district court, we compare the episode and the seminar recording.
Contrary to BCA’s argument, this does not involve weighing evidence. We consider
the seminar and the episode as understood by a reasonable person. Bustos, 646 F.3d
at 767 (material falsehood must be “likely to cause reasonable people to think
‘significantly less favorably’” of the plaintiff than if they knew the truth).

- 44 -
Blair v. Inside Ed. Prods., 7 F. Supp. 3d 348, 359-62 (S.D.N.Y. 2014).38 This

exercise also shows the episode was not materially false.

1. Purpose of the Seminar

The district court properly followed Brokers’ Choice II’s direction to compare

the Dateline episode’s gist with the seminar as a whole. We do the same here. Our

analysis consists primarily of evaluating whether statements in the Dateline episode

were materially false when considered in the full context of the seminar. But the

district court recognized, as do we, that an important part of the seminar’s context

was its purpose. We start there.

The recording shows a main purpose of the seminar was to teach insurance

agents how to sell annuities and become wealthy. This is consistent with the gist of

the episode that “Clark teaches insurance agents to scare and mislead seniors into

buying unsuitable insurance products.” 757 F.3d at 1138.

Although the seminar taught attendees about annuity products and financial

planning topics relevant to seniors, Mr. Clark explained that it would concentrate on

how to sell annuities. He identified this objective at the outset: “I’m just saying

that’s that—you’re here essentially to make money; is that true? I mean, you want to

do better, make more money.” Recording Tr. Day 1 at 3. He told attendees: “You

38
See also Price, 620 F.3d at 1002-03 (characterizing Masson as requiring the
district court to “compare[] the meaning conveyed by the Clip as broadcast with the
meaning of [the plaintiff’s] own words in the context of the sermon he actually
delivered” and stating that “the proper comparison [under Masson] is between the
meaning of the quotation as published and the meaning of the words as uttered”).

- 45 -
didn’t come out here to learn about annuity products but you will learn some. You

came out here to learn how to sell annuities, how to run your business and so forth.”

Id. at 6.

During the seminar, Mr. Clark described how selling annuities could be

lucrative:

 “[I]t’s not going to be uncommon for agents to write 30 to a hundred
million in premium[s]” by selling annuities. Id. at 5.

 “We had a gentleman here last month who wrote over a hundred million
of premium[s]. A hundred million.” Id.

 “So if you guys really want—listen, there’s no excuse as to why you’re
not wealthy. There’s no excuse for you not being wealthy. There really
isn’t. Okay?” Id. at 198.

He explained that agents’ own confidence was their main obstacle to selling

annuities:

 “If you want to get to 30, 40 million of premium[s], you want to get to
10 million, the limitations that exist are the ones that are in your brain.”
Id. at 19.

 “[Y]ou’re inches, inches, inches away—inches away from
accomplishing this and writing 10-million-a-year [in] premium[s]. You
have to believe that. And then you have to start saying, I can do it, I can
to [sic] be it, I can do it. And you can do it.” Recording Tr. Day 2 at
105.

Mr. Clark also emphasized how he had helped others become wealthy by

teaching them how to sell annuities:

I have trained more millionaires in the annuity industry than anybody in
America. There is no other individual. By the way, I know all the top
producers. Most of them, I started them, and I trained them, or I did
their seminars. I made more millionaires in this business than anybody.

- 46 -
Recording Tr. Day 1 at 3. Mr. Clark stressed the value of his advice. For example,

describing his successful seminar model, he said: “It’s a masterpiece. The seminar

has produced about eight billion in sales. That’s a real number. So the seminar

works like a machine. Works like a machine.” Id. at 151-52.39

BCA’s amended complaint described the seminar as an “educational course”

for agents to understand the features of annuities so they could determine “suitable

fit” for customers. Am. Compl. at 7, ¶ 24. Although Mr. Clark and other speakers

discussed annuity features and financial planning topics in the seminar—“you will

learn some”—40 and Mr. Clark told attendees their annuity knowledge would give

them confidence to boost their sales,41 BCA’s description did not include Mr. Clark’s

own characterization of one of the seminar’s main purposes: to teach agents how to

sell annuities and get rich—a purpose aligned with the Dateline episode’s gist.

39
See also Supp. App. at 1218 (“[T]his is the process here and it works like a
machine. It’s like printing money.”).
40
For example, throughout the seminar, Mr. Clark quizzed attendees on what
he deemed the six characteristics of an annuity: “And an annuity—there’s six
features—remember when I said I want you to understand the language? I want you
to memorize the six features of an annuity: safety, liquidity, tax advantages,
competitive returns without risk, probate avoidance, and you can still structure the
annuity to protect the asset from a nursing home spend-down. Nursing home
benefits.” Recording Tr. Day 1 at 65.
41
Mr. Clark stated: “So an annuity is a multifaceted planning tool . . . . And
the better that you know and understand this, the more sales you’re going to make,
the more sales you’re going to save, the better you are going to be in your seminars
and more conviction and confidence you’re going to have.” Id. at 55. He also said
an agent could win over a client from a competitor by impressing the customer with
the agent’s knowledge of the product. Id. at 62-63.

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 The ensuing analysis evaluates whether statements in the episode were

materially false when considered with the full context of the seminar, including its

objective to help attendees sell annuities and get rich.

2. Comparing the Gist of the Episode and the Seminar

As noted above, the Brokers’ Choice II panel identified the “gist” of the

Dateline episode as follows: “Clark teaches insurance agents to scare and mislead

seniors into buying unsuitable insurance products.” 757 F.3d at 1138. We focus here

on whether the gist of the episode conveyed a materially false depiction of the

seminar’s content under the Masson/Bustos standard. After comparing the episode

with the seminar recording, we agree with the district court that the gist of the

episode was not materially false. To reach this conclusion, we compare statements

about BCA in the episode that underlie the gist with the whole two-day seminar. Id.

at 1132; Price v. Stossel, 620 F.3d 992, 1002 (9th Cir. 2010) (explaining that a proper

analysis must compare the episode with the meaning of plaintiff’s own words in the

context of the presentation he actually delivered). Although the elements of the

episode’s gist overlap—for example, scaring seniors can include misleading them,

and misleading seniors can concern the suitability of annuities—we organize this

discussion by grouping statements from the episode in the categories listed in the

gist.

a. “Scare seniors”

i. The episode and the seminar

- 48 -
 The Brokers’ Choice II panel described the gist of the Dateline episode to

include that Mr. Clark “[taught] insurance agents to scare . . . seniors into buying

unsuitable insurance products.” 757 F.3d at 1138. We focus here on the “scare

seniors” part of the gist.

Episode. The Dateline episode stated Mr. Clark’s seminar taught agents to use

“scare tactics” to convince seniors to buy annuities, such as “suggest[ing] their

money may not be safe, even in a bank” or mentioning “a senior’s natural fear of

nursing homes.” Dateline Tr. at 8.

BCA alleged the episode was materially false because Mr. Clark did not teach

agents to use scare tactics. Am. Compl. at 30-31, ¶ 89. Rather, BCA’s amended

complaint characterized Mr. Clark as teaching agents to “uncover[]” important

issues—not fears—to determine if an annuity is a suitable product for the client. Id.

at 8, ¶ 26; id. at 31, ¶ 91. The seminar recording contradicts and supplants these

allegations.

Seminar. At the seminar, Mr. Clark presented a formula to sell annuities:

(1) bond with clients to establish credibility, (2) discover a potential client’s

emotionally based problems, and (3) solve that problem by selling an annuity.

Recording Tr. Day 1 at 152.42 Mr. Clark explained that the kinds of problems that

42
Mr. Clark summarized the approach as follows: “The first thing . . . is
you’re going to have to bond with that person. Then you’re going to have to
establish credibility with that person. Then you’re going to have to open up that
person where they open up to you. And then you’re going to look for, uncover,
discover their problems. Then you’re going to solve their problem. Then you’re
Continued . . .

- 49 -
lead to sales have an emotional root; the problem should “disturb the hell out of” the

prospective client. Id. at 75. He said that he “bring[s] out the stuff when they can’t

sleep at night,” id., and taught agents how to “strike at the heart of a prospect,” id. at

155.

Mr. Clark explained:

When it comes to making a sale . . . this is what has to take place. It has
got to be—it has to be an emotional experience, it has to be, because
that’s the only time when a person is going to make a decision.

Id. at 35.43 He went on:

Where’s the client’s problem? Okay. And if that’s not an emotionally
based problem, you have no sale. There is not going to be a sale. You
uncover and you discover problems. That’s what we do. And then we
solve those problems.

Id. at 75. He made clear these problems are widespread:

[E]veryone out there you talk to typically has a tax problem, they have
an investment problem, they have health problems, they have an estate
planning problem, they have a family problem. They all have problems.
That’s what my seminar is all about.

Id. He advocated identifying such a problem and using the following strategy:

My seminar is bringing forth as a—in as articulate manner as possible,
based on the way they think and the way they say their problems, and
then I have empathy, and then I relate to every one of my audiences.
Okay? And I bring these things out that disturb the hell out of them.

going to get them to make a decision about that problem, close, and then you’re
going to seal the sale.” Recording Tr. Day 1 at 152.
43
Another speaker at the seminar similarly explained: “Don’t rely on a
PowerPoint or the product itself to sell people. You have to—people buy on
what? . . . . Emotion.” Recording Tr. Day 2 at 182.

- 50 -
 That’s what I do in my workshop. Not by putting—or making them so
fearful. I bring out the stuff when they can’t sleep at night.

Id. Mr. Clark explained this approach leaves the prospects feeling that they need him

to solve their emotionally based problems akin to a cancer patient’s need for a doctor:

It’s kind of like this: If the doctor said, you know, I’m sorry, you have
cancer. You need to—you need to come to the office as soon as you
can. Man, you’re going to be there. That’s fear. The presentation
should have that impact. It should have that impact.

Recording Tr. Day 2 at 104.44

Mr. Clark gave examples of the effective use of emotionally-based problems to

appeal to prospects. As discussed further below, he stated that nursing homes can

drain savings to the point of bankruptcy. He presented a hypothetical in which a

disfavored son-in-law divorces the prospect’s daughter but manages to walk away

with half of her inheritance.45 He also suggested appealing to prospects’ desires to

44
Mr. Clark stated the potential clients have “already made the decision that
they need you and the workshop because I bring up stuff that is very disturbing.”
Recording Tr. Day 1 at 151.
45
Mr. Clark described presenting the following scenario to prospects: “And
worst of all, it’s going to go into their marital accounts, and your son or daughter
have a 50 percent chance of their marriage ending in divorce. And you hear them—
now I’ve really got them going. Now, that son-in-law has turned into the outlaw in-
law, and he divorces your daughter, he’s able to walk away with half of the
inheritance. He marries someone else that has children of her own. So guess who
ultimately ends up with those assets? The new spouse’s children. Wouldn’t you like
to meet these kids? You know, if they’re going to end up with—with what took you a
lifetime to build, all those 40 years of work are going to end up in some stranger’s
children’s hands—how did that happen? How did that happen? Have I affected
them? Big time.” Id. at 32. He went on to tell attendees that he presented this “not
[as] fancy sales techniques” but as “some flavor of—of information, but it’s true
Continued . . .

- 51 -
prevent their children from wasting their inheritances.46 He stated that, without an

annuity, the children would likely spend the client’s life savings within nine months47

and that he has seen families fall apart and not talk to each other for years because of

how assets were inherited.48 For example:

I got some stuff so powerful, so powerful, because I’ll say, you know
what, ladies and gentlemen, how would you feel if you knew that you
were the cause of family conflict, divorce, and bankruptcy in your
family, and you caused it? How would you feel about that? Probably
miserable. Can that happen? It can happen in the manner that you leave
your assets to your children.

information. It’s not fancy sales techniques. It’s for real.” Id. He again emphasized
that annuities are the “real deal” and that none of his clients had lost any money. Id.
He similarly explained that a child’s ex-spouse could walk away with half of
the inheritance if the senior conveyed it in the form of a home, rather than an annuity:
“And once [the child sells the home], if there was a divorce . . . . Sorry there’s
nothing you can do about it and nothing the other kids can do about it. Boy, does this
stir up emotions, and it should. They’ll—when they leave the seminar, they can’t
stop thinking about what I just said. . . . You know what, I just hooked them right
now is what I did.” Id. at 143.
46
“If you really want to strike at the heart of a prospect, ask them if they have
children that intend to spend their money as soon as they get it. And there’s nothing
that they want more is to know—to know that their children will be financially secure
when they’re no longer here. They’ll buy an annuity just for this feature, just for this
benefit. Nothing else.” Id. at 155-56.
47
“I say, folks, 78 percent of the assets that is [sic] inherited by the Baby
Boom generation will spend those assets within nine months. So what took you a
lifetime to build, when it gets in their hands, it’s gone, the majority of it, within nine
months. You hear the room just chatter, chatter, chatter, chatter. I impacted them
emotionally.” Id. at 31.
48
“It wasn’t your intention, but the way you leave assets to your kids could
end up in a grudge with your children. I’ve seen families never talk to each other for
years because of the way their parents have left the assets to them. That disturbs the
heck out of them.” Recording Tr. Day 2 at 104-05.

- 52 -
Recording Tr. Day 2 at 104.49 For each example, Mr. Clark provided a detailed,

emotional narrative the agent could use to “disturb the heck out of [the prospect].”

Id. at 105. See also Brokers’ Choice III, 138 F. Supp. 3d at 1203-05 (excerpting

narrative examples).

As part of promoting annuities to solve these problems, Mr. Clark presented

examples of protecting “clients’ life savings from the nursing home and Medicaid

seizure of their assets.” Id. at 110. Telling attendees to memorize “what [he’s]

accomplished for [his] clients,” he said:

I help my clients to protect their life savings from the nursing home and
Medicaid seizure of their assets. See, that’s scary, and it should be
scary, Medicaid seizure, because they do seize their assets. They force
them to spend it all down. I protect my clients’ life savings from the
nursing home and Medicaid seizure of their assets.

Id. at 111-12.50 He described Colorado law as making asset seizures of this kind

plausible:

If you run out of money in a nursing home in this state, they will put a
lien on your house, and the State will inherit the home, not your family.
See, I just—I just got half of the whole room right there, didn’t I, before
I started my seminar.

49
See also id. at 105 (“I said, ladies and gentlemen, how would you feel—
remember that’s an emotional question. How would you feel if you discovered that
you were the cause of family conflict, family divorce, and even bankruptcy? And
guys, what I’m telling you is real. It’s the real thing.”).
50
See also Recording Tr. Day 1 at 73 (Mr. Clark explained he can “structure
the annuity to protect it from the nursing home.”).

- 53 -
Id. at 112. But because of annuities, “[t]hat does not, has not, and will not happen

with my clients.” Id. at 110.

Comparison. As the foregoing shows, Mr. Clark instructed seminar attendees

to seek out and leverage seniors’ emotions to make sales. He encouraged them to use

“fear” and to “disturb” prospective clients to sell annuities. He gave examples of

emotional problems that are particularly effective to probe seniors’ fears. Comparing

his seminar statements to the episode, we conclude the episode’s description of these

methods as “scare tactics” was not materially false.

ii. BCA’s arguments

BCA argues that Mr. Clark “stressed ‘truth and facts’” and “taught agents to

care about their clients.” Aplt. Br. at 30-31. But even if this is so, it does not erase

his advocacy of scare tactics or undercut the other parts of the gist.

As BCA points out, the seminar recording shows that Mr. Clark encouraged

attendees to use “truth and facts” to sell annuities.51 For example, he said:

51
Mr. Clark explained that using “truth and facts” and demonstrating “care”
would increase sales. See, e.g., id. at 38 (“If you want me to do business with you,
what value are you bringing to the table? . . . You’re bringing your honesty, and you
bring in your ethics, and you bring in your trust, and you bring in your care about
your client. . . . And when you feel—feel that way, the psychology changes in the
sales process. They want you instead of you trying to beg them to like or want
you.”); id. at 99 (explaining that the sales process came down to “whether [prospects]
like you and whether they trust you. . . . You know, if you’ve met somebody that
was cold and standoffish and didn’t seem to care about you, would you want to do
business with them?”); id. at 13 (“How am I going to—how am I going to turn you
into a multimillionaire, mega million dollar producer? It’s not because annuities are
great. Here’s how you sell them. Here is how you bring people to you. It comes
Continued . . .

- 54 -
 Now, this is very, very important. Let me tell you why. Because if you
sell based on truth, based on facts, you’re right with yourself, within
yourself. You have the right motives. Okay? You’re not selling smoke
and mirrors. You’re not selling garbage. You want to do the best job
you can for your client based on truth, based on facts.

Id. at 31; Recording Tr. Day 1 at 13.52 The seminar provided “truth and facts”

attendees could use:

I have something that’s the best thing there is to deliver to people, to
deliver to you guys: I have truth, and I have facts to deliver to you.
That is true. I’m living proof of it.

Id. at 39.

Mr. Clark also instructed agents to demonstrate care and bond with the client

as part of the formula to use scare tactics to close the sale:

The first thing that’s going to have to take place is you’re going to have
to bond with that person. Then you’re going to have to establish
credibility with that person. Then you’re going to have to open up that
person where they open up to you. And then you’re going to look for,
uncover, discover their problems.

Id. at 152. “And to be really good at bonding depends on if you care about that

person and they can tell that.” Recording Tr. Day 2 at 95.

from within you. What’s in your heart. Do you care about people? Do you care
about their well-being?”).
52
Mr. Clark also encouraged attendees to buy an annuity for themselves, id. at
41-42, to “become experts at annuity contracts,” id. at 48, and to be experts in
various areas of retirement planning, Recording Tr. Day 2 at 91, to successfully sell
annuities. He said: “[I]f you become experts in these areas, you guys are going to be
very wealthy, you’re going to have job security.” Id.

- 55 -
 As BCA points out, Mr. Clark told attendees to use “truth and facts” and to

demonstrate care for clients. But this did not exclude his teaching the use of scare

tactics—or the other tactics referenced in the episode—to complete the sale. To the

extent the episode omitted or downplayed Mr. Clark’s seminar comments on the

agent’s use of truth, facts, or caring, the reasonable viewer would not be “likely” to

think “significantly less favorably” about BCA in light of the context of the overall

seminar, which was replete with Mr. Clark’s references to scare tactics as a tool to

sell annuities and get rich. Bustos, 646 F.3d at 767.

iii. Conclusion

Mr. Clark instructed seminar attendees to exploit seniors’ emotions and to use

“fear” to make sales. He explained that prospective clients should feel that they need

the agent to solve their emotionally based problems like a cancer patient needs a

doctor. See Recording Tr. Day 2 at 104. His mention of using “truth and facts” and

of demonstrating care for clients did not expunge his advocacy of scare tactics at the

seminar. The episode’s “scare seniors” gist was not materially false.

b. “Mislead seniors”53

i. The episode and the seminar

53
As stated above, the district court interpreted “mislead seniors” to include
only the episode’s discussion of “misleading credentials.” Brokers’ Choice III, 138
F. Supp. 3d at 1213-15. We think the “mislead seniors” part of the gist is broader
and analyze it accordingly.

- 56 -
 As explained above, the Brokers’ Choice II panel described the gist of the

Dateline episode to include that Mr. Clark “[taught] insurance agents to . . . mislead

seniors into buying unsuitable insurance products.” 757 F.3d at 1138. The “mislead”

part of the gist concerns statements in the episode about (1) teaching agents to inflate

their credentials, (2) teaching agents to deflect annuity criticisms, and

(3) commentary from Minnesota Attorney General Swanson stating that Mr. Clark

was not telling agents the truth about the liquidity of annuities.

1) Inflate credentials

Episode. The Dateline episode stated: “At Annuity University, Dateline

discovered part of an underground industry that helps insurance agents puff up their

credentials and mislead [seniors] about who they really are.” Dateline Tr. at 9. The

episode then showed hidden camera footage from the seminar showing that agents

were taught they could pay to be listed on the cover of a financial book to “look like

a respected author,”54 to “pretend[]” to be an “author” of another book called

“Alligator Proofing Your Estate,”55 or “pretend to be a guest” on a pre-scripted radio

54
This portion of the episode showed hidden camera footage from a break in
the Annuity University seminar presentation, in which a Dateline producer spoke
with Richard Duff about putting his “name on the cover of one of [Mr. Duff’s]
financial books.” Dateline Tr. at 9. The episode explained that the name placement
was in exchange for “writ[ing] a short biography” and “giv[ing] him a few thousand
dollars.” Id.
55
The episode showed an online advertisement and stated: “At Annuity
University, this ad says you can be the author of a book called ‘Alligator Proofing
Your Estate.’” Id. It stated that “agents like the idea of pretending to be authors,
Continued . . .

- 57 -
show to “help impress customers.” Id. at 9-10. Mr. Hansen stated that “Attorney

General Swanson says tactics like that can lead to abuse.” Id. at 10. Attorney

General Swanson concluded the segment by commenting: “He is basically handing

[attendees] loaded guns so they can walk into the senior’s home and rip them off.”

Id.

Seminar. At the seminar, the second day included a lengthy presentation by

Jeff Hoyle, director of Sundance Public Relations, BCA’s public relations arm. Mr.

Hoyle’s role was to help agents build their brand and business image. Recording Tr.

Day 2 at 16. He told agents they must build credibility with potential clients and

should aim to “reach” their audience six times to be remembered. Id. at 20, 29.

In addition to other services, Mr. Hoyle described a Sundance Public Relations

marketing opportunity called “Response Radio.” Id. at 40. It is a “pretty scripted

radio show, for lack of a better word” “based on a show that [Mr. Clark] did about a

year and a half ago.” Id.56 “[Y]ou purchase the product [for $1,995], we send you

the script, you go through the script, make any changes that you like. Then we

schedule for you a preproduction meeting with our gentleman who does all the radio

because Dateline found copies of the same ‘Alligator’ book supposedly co-written
by” four individuals. Id.
56
Mr. Hoyle explained that agents can make changes to the script: “The nice
thing about it being prescripted is that if you purchased the product and received the
script and there is something in the script that you don’t want to talk about, take it
out, change it . . . . You know, we want it to be your piece because we want it to be
customized for you for your use.” Recording Tr. Day 2 at 40. He emphasized
“We’re very flexible in terms of making it a piece that you want.” Id. at 41.

- 58 -
magic, if you will.” Id. at 41, 45. The agent records the dialogue as if it were a radio

interview. Id. at 41-42. The “recording is done as if you were the call-in guest on a

syndicated show in [sic] Senior Concerns.” Id. at 42.57 A producer edits the

recording “for radio airplay. So if you wanted to walk into a radio station and offer

this piece to them and buy an hour of airtime, all they have to do is plug it in.” Id.58

He explained agents could get a secondary benefit by representing to potential clients

that they were on a radio show and handing out the recording on a CD to them. Id. at

50. The radio service, he said, “is just that little extra credibility that you can add.”

Id.

In addition to the radio offering, the seminar recording showed agents were

taught they could pay to have articles written on their behalf or to be portrayed as

having a substantial role in authoring a book.

Mr. Hoyle discussed “ghost-written articles” that agents could pay to have

written and then submit to local publications:

But if you don’t want to take the time to write the article, then just give
me a call, and we can write it for you. We can write it in whatever
context you want it written in on pretty much whatever topic you want it
written on.

57
Mr. Hoyle continued: “And Senior Concerns is a copyrighted show we own
the copyright to. How convenient, right?” Id. at 42.
58
Mr. Hoyle answered a question about how to purchase airtime from radio
stations and said: “Well, the fact of the matter is that you really can’t get a guarantee
to play [the recording] unless you purchase the time.” Id. at 48-49.

- 59 -
Id. at 52-53. After discussing ghost-written articles, Mr. Hoyle briefly mentioned

that “[w]e also do coauthored books.” Id. at 54. He stated:

We have one that has been primarily exclusive to [another] program
called ‘Alligator Proofing your Estate,’ which I think we’re going to try
and broaden into the mainstream of everybody . . . .

Id. He added that a new coauthored book would soon be available. Id. The seminar

contained no further description of the “coauthored” books referenced by Mr. Hoyle.

The seminar recording also showed other “customizable” financial books

available to attendees. The second day of the seminar included a presentation from

Richard Duff, who was introduced as an attorney, author, teacher, and trainer. Id. at

2-3. During a break in the seminar, one Dateline producer approached Mr. Duff to

ask about his “customizable” financial books. Recording Tr. with Presenter at 2. Mr.

Duff responded that the books could be tailored to list the agent as an author and

would include a short chapter to be written by the agent. Id. at 2-3. He said: “[W]e

can work out the covers. We can even change the title. So your pictures go on the

back.” Id. at 2. He explained:

And it is—your first chapter, there is room for five or six, seven pages
all about the way you’re looking at things, your phone numbers, contact
information and your seminars . . . . You know, I came into business
because of this. And that’s—and I could help you with—I will help you
with it, but you’ve got to write it.

Id. at 3-4.

Comparison. As the episode described, the prescripted radio show and ghost-

authored articles marketed by Mr. Hoyle and the “customizable” financial books

offered by Mr. Duff show that Annuity University offered agents the opportunity to

- 60 -
pay for marketing that overstated their roles as interviewees or authors. Mr. Hoyle

also offered attendees the option of “coauthored” books, including the “Alligator”

book mentioned in the episode. The agents were urged to use these products to build

credibility with seniors, thereby misleading them with inflated credentials. Attorney

General Swanson’s comment was stronger than the episode’s earlier characterization

of Annuity University as “help[ing] insurance agents puff up their credentials and

mislead [seniors] about who they really are,” Dateline Tr. at 9, but did not go so far

as to render the gist materially false.59

2) Deflect annuity criticisms

Episode. The episode showed a meeting between an insurance agent who was

an Annuity University graduate and a senior whom Dateline had recruited to pose as

a potential client. The agent used Mr. Clark’s “very same pitch” taught at the

seminar that clients would have “easy access to their money.” Id. at 11. When

pressed about annuity surrender charges, the agent answered “fast” and changed the

subject to address taxation of the withdrawal. Id. at 12. Mr. Hansen narrated that the

59
Attorney General Swanson’s comment is also non-actionable because it is
“loose, figurative, or hyperbolic language” that cannot “reasonably be interpreted as
stating actual facts.” Milkovich, 497 U.S. at 21-22. It therefore receives
constitutional protection. Id.; see also Gardner v. Martino, 563 F.3d 981, 990 (9th
Cir. 2009); Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 728 (1st Cir.
1992) (finding “a rip-off, a fraud, a scandal, a snake-oil job” to be figurative and
hyperbolic, and thus, protected opinion); Rizzuto v. Nexxus Prods., 641 F. Supp. 473,
481 (S.D.N.Y. 1986) (finding defendant’s statements about “lying salesperson” and
“rip you off” to be expressions of opinion); Beilenson v. Superior Court, 44 Cal.
App. 4th 944, 951 (1996) (finding opinion that plaintiff’s conduct was a “rip-off” to
be rhetorical hyperbole).

- 61 -
surrender charge question “ha[d] a simple answer,” but the agent instead “g[ave] an

answer that’s muddled with information about taxes and IRAs.” Id. at 12. After

viewing the agent’s answer, Attorney General Swanson commented that the

salesman’s answer was “absolutely misleading” because he did not sufficiently

explain surrender penalties and the “tax issue ha[d] nothing to do with what [the

senior] [was] asking.” Id.60

Seminar. At the seminar, Mr. Clark—like the agent depicted in the episode—

also deflected criticisms of surrender charges to focus on tax deferment.

Mr. Clark told attendees he would teach them the “language of annuities” to

use with potential clients. Recording Tr. Day 1 at 24-25.61 When addressing a list of

annuity criticisms, he began with surrender charges. Id. at 186. He acknowledged

“[t]here are some high surrender charges,” but then quickly shifted to explain that he

60
Attorney General Swanson commented that “people deserve clear
explanations,” stating “[i]t’s absolutely misleading. I mean, really, they need to deal
with these seniors straight.” Dateline Tr. at 14. In response to Mr. Hansen’s
statement that the salesman showed the senior a brochure and a “sliding scale of what
the penalties would be,” Attorney General Swanson stated “Yeah, he kind of he [sic]
did. But it was pretty quick. . . . And then the whole time he’s talking tax talk. The
tax issue has nothing to do with what she’s asking.” Id.
61
Mr. Clark said: “[E]ven if you’ve been in the business for a long time . . . I
want you to approach this like you’re learning a new language. . . . So approach—
I’m going to teach you the language of annuities.” Recording Tr. Day 1 at 24-25.
Then, after giving attendees language to use in their sales presentations, he
said: “And I’ve already given you a sales presentation, the magic genie, and I have
given you some fantastic power phrases. I’ve given you a lot of power phrases.” Id.
at 173. He stressed that another seminar attendee had “bec[o]me a millionaire from
what he learned that I gave him.” Id. at 174.

- 62 -
liked surrender charges because they “enable[] higher rate[s] of return” and they

serve as “an incentive to take advantage of tax deferments.” Id. at 178, 186. He said:

[T]he other reason I like the surrender charge is as a deterrent against
competitors. The reason I like the surrender charge, it encourages the
client to keep their money there for—for tax deferment compounding
growth. Okay? That’s how I look at surrender charges.

Id. at 178.62

Comparison. The salesman’s approach in the Dateline episode resembled Mr.

Clark’s at the seminar. Mr. Clark and the salesman both deflected attention away

from surrender charges by redirecting the conversation toward tax deferment

benefits. Attorney General Swanson’s comment was consistent with the episode’s

suggestion that the Annuity University graduate misled the senior by not directly

answering the senior’s surrender charge question.63 Dateline Tr. at 11-12. The

seminar recording shows that this portion of the “mislead seniors” gist was not

materially false.

62
See also Recording Tr. Day 1 at 177-78 (“And if a competitor wants the
money, well, that’s why I like a surrender charges [sic]. See, a surrender charge is an
incentive to take advantage of tax deferment.”).
63
Mr. Hansen commented on the graduate agent’s response to the senior’s
surrender charge question. He said: “[W]ill [the agent] be honest and make sure [the
senior] understands the size of those surrender penalties? . . . . [The senior] is asking
about taking her money out in an emergency. It’s a simple question really. And it
has a simple answer. He could say: ‘Yes ma’am, it’s costly to take money out early.
You’d lose a bundle.’ But instead of saying that, [the agent] gives an answer that’s
muddled with information about taxes and IRAs.” Dateline Tr. at 11-12.

- 63 -
 3) Attorney General Swanson’s liquidity comment64

Episode. Asked to “characterize” Mr. Clark’s statement from the seminar that

annuities provide “more choices to access your money . . . than any other financial

instrument,” Attorney General Swanson said: “I think that he is not telling the truth

when he tells those agents that an annuity is the most liquid place a senior citizen can

put their money. It is simply not true.” Id. at 9; Recording Tr. Day 1 at 72.65 Her

comment goes to the “mislead seniors” part of the episode’s gist.

The episode had already reported that “some experts” said annuities are a

“horrible investment for many seniors” because they can “lock up most of [the

senior’s] money for more than a decade,” and that “if [the senior] needed to withdraw

his cash early, he would pay stiff surrender penalties.” Dateline Tr. at 1. The

episode also previously said that Mr. Clark taught agents to “[p]romise people easy

access to their money” to close the annuity sale. Id. at 9. Attorney General

Swanson’s comment was consistent with these statements about liquidity.

Seminar. Mr. Clark and other Annuity University speakers acknowledged at

the seminar that annuities have surrender charges that impede the annuity holders’

64
Liquid, in this context, means “[e]xisting as or readily convertible into
cash.” Liquid, American Heritage Dictionary (5th ed. 2011).
65
The episode showed Mr. Clark’s statement: “There are more ways to access
your money. There are more options. There are more choices to access your money
from an annuity than any other financial instrument.” Mr. Hansen narrated: “We
asked Minnesota Attorney General Lori Swanson to watch what our hidden cameras
had captured.” Id. at 11. Mr. Hansen then asked Attorney General Swanson: “How
would you characterize what this man has said?” Id.

- 64 -
ability to access their money. It follows that annuities cannot be the most liquid

option available to seniors. Mr. Clark even told the agents: “There are some high

surrender charges . . . . You don’t put your money in to take it out, put it in, take it

out.” Recording Tr. Day 1 at 186. Annuity University speakers Josh Geisemann and

Mr. Duff similarly acknowledged that surrender charges existed on annuity products.

Id. at 124-25, 128-29 (Mr. Geisemann); Recording Tr. Day 2 at 6 (Mr. Duff). Mr.

Clark also thought surrender penalties were beneficial for asset preservation.

Recording Tr. Day 1 at 186 (“Surrender charges enables [sic] higher rate of return. It

deters people trying to take the money from the client.”). He therefore contradicted

his own statement about “choices to access your money” with other comments he

made at the seminar.

Mr. Clark identified ways to “eliminate the impact” of surrender charges, such

as giving clients a bonus on the rate of interest they receive from the annuity to offset

the amount of the surrender charge,66 or including surrender charge waivers for

hospital emergencies, or allowing a 10 percent withdrawal option without penalty.

66
See, e.g., Recording Tr. Day 1 at 186-87 (“But [the surrender charge] does
decline, it disappears, and I can—I can eliminate the impact of a surrender charge by
virtue of adding the bonus. If I add an interest bonus on the first year, I just
eliminated the impact of the surrender charge.”); id. at 179 (“[N]ow, let’s say that
you have an annuity that has a 10 percent surrender charge. What if the insurance
company credits 10 percent bonus in the first year? You just, in effect, shaved off
the 10 percent penalty by virtue of the bonus. So people don’t understand surrender
charges. Oh, they got big surrender charges[?] Not necessarily so. I can eliminate
the impact of the surrender charge by adding a bonus on the front end.”).

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Id. at 177-79.67 Mr. Clark acknowledged that “[n]ot all annuities have all these

features but many of the top good annuities have most of these options.” Id. at 175.

Other seminar speakers explained that these features were more limited than Mr.

Clark suggested and would not necessarily allow seniors ready access to their full

investment.68

Comparison. With Mr. Clark and the other seminar speakers sending mixed

messages about annuity liquidity at the seminar, Attorney General Swanson’s

statement compared to the seminar did not make the “mislead seniors” part of the gist

materially false. It went no further than the episode’s earlier characterization about

the liquidity of annuities and was consistent with statements at the seminar by Mr.

Clark and other Annuity University speakers acknowledging impediments to seniors’

ability to access their money. The episode also acknowledged the surrender penalty

67
See, e.g., id. at 177 (“Now, when—when will seniors need their money? If
they had an emergency such as a hospital, nursing home, well, you get all your
money with no penalty. If you just want some of your money, you’ve got 10 percent
withdrawal. If my clients do need the money, they have a hospital, nursing home
waiver, no penalty; they have 10 percent withdrawal, no penalty.”).
68
For example, one seminar speaker explained that the clients’ option to
withdraw 10 percent of their invested money without a surrender charge begins only
in the second year of the annuity, and that one type of waiver allows clients to
withdraw 75 percent of their money without charges. Id. at 112-13; see also Supp.
App. at 828 (explaining that most companies “only allow the nursing home [waiver]
to be available starting in the second year”). The speaker also explained that clients
may still have to pay taxes on their withdrawal, even if they did not incur a surrender
charge. Recording Tr. Day 1 at 113. Another speaker explained that bonuses used to
offset the effect of surrender charges often accompany longer-term annuities, see
Recording Tr. Day 2 at 215-18, and may not offset the surrender charge enough for
seniors to withdraw the full amount at any time. Id. at 125, 128-30.

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mitigation options Mr. Clark discussed at the seminar, stating that “with some

exceptions, annuities lock up most of your money for a specified number of years.”

Dateline episode at 9. Attorney General Swanson’s comment, therefore, did not

cause the episode to have “a different effect on the mind of the [viewer] from that

which the pleaded truth [of the seminar recording] would have produced.” Air Wisc.

Airlines, 134 S. Ct. at 861 (quoting Masson, 501 U.S. at 517). Even if the comment

caused some “comparative harm” to BCA’s reputation compared to the seminar, it

was “modest” at best. Bustos, 646 F.3d at 765. It did not make the “mislead seniors”

part of the gist materially false under the Masson/Bustos standard.

ii. BCA’s arguments

BCA makes several arguments about the “mislead seniors” part of the gist.

First, regarding inflated credentials, BCA alleged that the “Alligator book”

mentioned in the episode “is not ghost-written or misleading to readers in any way

whatsoever” because one chapter is “actually authored by the insurance agent . . . and is

clearly identified as such,” and “[t]he rest of the book’s chapters” are “clearly identified

as written by a named qualified expert.” Am. Compl. at 39-40, ¶ 111. The seminar does

not support this allegation because Mr. Hoyle said nothing about the “Alligator book”

beyond offering it to attendees as a “coauthored book.” Recording Tr. Day 2 at 54.

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 More important, this allegation, assuming it is true,69 may survive the material

falsity analysis standing alone,70 but in the context of the episode and the seminar, its

technical inaccuracy does not overcome the menu of credential-inflating marketing

opportunities presented to attendees at Annuity University. When considered along with

Mr. Hoyle’s urging the agents to pay for placement of pre-packaged radio interviews and

ghost-written articles and Mr. Duff’s book possibility that overstates the agent’s

contribution,71 the episode’s statement that agents “pretended to be authors” of the

“Alligator book,” even if inaccurate, did not render the “mislead seniors” gist materially

false under the Masson/Bustos standard.

The seminar’s smorgasbord of questionable marketing opportunities undercuts

BCA’s allegation that “[n]othing taught by Clark, and none of the products sold at

Annuity University, are intended to deceive, or in fact deceive, seniors into believing

that books not written by agents were written by agents.” Am. Compl. at 40, ¶ 114.

The premise of the prescripted radio show, the ghost-written articles, and the co-

69
See Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (“In
reviewing a motion to dismiss, we accept the facts alleged in the complaint as true
and view them in the light most favorable to the plaintiff.”).
70
But it may not survive because BCA alleged the book is not misleading “in
any way whatsoever.” Am. Compl. at 40, ¶ 111. Placing an agent’s name and photo
on the book cover implies the agent had a more substantial role in creating the book
than just preparing the first chapter.
71
At the seminar, Mr. Hoyle referred briefly to the “Alligator Book.” See
Recording Tr. Day 2 at 54. Mr. Duff talked about other books. See Recording Tr.
with Presenter at 2-4.

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authored books is the same: agents were taught to pay for marketing opportunities

that inflate their credentials and then to leverage the appearance of expertise to gain

credibility with prospective clients.

Second, BCA argues, without citation to the seminar, Aplt. Br. at 33 (citing

Mr. Clark’s declaration), that Mr. Clark reminded agents to use ethical sales practices

and that they had independent ethical obligations as licensed insurance agents. Id.72

Mr. Clark mentioned ethics in the context of teaching agents to use their professional

standards to build their sales confidence. He said:

You’re bringing a priceless value to the table. You’re bringing your honesty,
and you bring in your ethics, and you bring in your trust, and you bring in your
care about your client. You can’t put a price on that.

Recording Tr. Day 1 at 38.

During the seminar, Mr. Hoyle also cited the National Ethics Bureau as a

marketing tool:

Does anybody know what the National Ethics Bureau is? Members? Are you
members? For those of who you [sic] are not, I really encourage you to
consider this strongly . . . . [T]hey basically do, you know, an extensive
background check for you and provide you with clearance to be a member of
the National Ethics Bureau. What that means is you get the use of the

72
The relevance of BCA’s argument is unclear. To the extent BCA argues Mr.
Clark taught agents to use ethical sales practices in a way that would negate the
“mislead seniors” part of the gist, we are unpersuaded.
The Dateline episode acknowledged BCA’s ethics arguments. It quoted
BCA’s response letter, stating BCA’s position that Mr. Clark “teaches agents to be
‘honest, ethical, and service-oriented’” and that insurance agents have a duty to
“‘present the facts, both pleasant and unpleasant, to customers.” Dateline Tr. at 18.
See Biro v. Conde Nast, 883 F. Supp. 2d 441, 483 (S.D.N.Y. 2012) (finding
significant that allegedly false and defamatory article “include[d] [plaintiff’s]
responses to many of the accusations reported in the Article”).

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 National Ethics Bureau logo—they have customizable brochures that you can
use as well—and the National Ethics Bureau profile [which agents can direct
clients to]. . . . This is another added layer of credibility. . . . It also gives you
a plaque of the same thing that you can use in your office as well.

Recording Tr. Day 2 at 76-77.

These two mentions of ethics were made to advance the seminar’s purpose of

teaching agents how to sell annuities and get rich. They do not change the fact that

Annuity University taught agents to mislead seniors.

iii. Conclusion

The seminar recording showed Annuity University taught attendees to mislead

seniors by purchasing ghost-written materials and prescripted radio shows to boost

their credibility. It also taught them to avoid answering questions about surrender

charges by following Mr. Clark’s example. Attorney General Swanson’s comments

were consistent with the “mislead seniors” portion of the gist and did not render the

episode materially false compared to the seminar. The seminar’s passing references

to ethics did not alter these conclusions. The “mislead seniors” gist of the episode

was not materially false.

c. “Unsuitable insurance products”

The Brokers’ Choice II panel described the gist of the Dateline episode by

stating that Mr. Clark taught agents to “scare and mislead seniors into buying

unsuitable insurance products.” 757 F.3d at 1138. We focus here on the “unsuitable

products” part of the gist, again keeping in mind it is closely related to the other parts.

This is so because offering a seminar on how to sell annuities and instructing the agents

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on how to scare and mislead seniors into buying them means that at least some of the

resulting sales are likely to be unsuitable for certain seniors. Moreover, because the

seminar provided little guidance to the agents on how to assess whether an annuity is

suitable or unsuitable for individual seniors and instead emphasized hard-sell tactics

generally, it also follows that some resulting sales are not likely to be suitable.

i. The episode and the seminar

Episode. The episode reported that annuities are “legitimate investment[s] for

some people,”73 but that experts say they are “a horrible investment for many

seniors.” Dateline Tr. at 1. It pointed to two key features that can render the product

unsuitable: (1) annuities lock up the invested money for “longer than [the senior]

might live”; and (2) a senior who needs to withdraw the money early must pay “stiff

surrender penalties.” Id.

Seminar. In its amended complaint, BCA alleged the seminar showed Mr.

Clark teaching the downsides of annuities as a way to determine if they were suitable

for the client, Am. Compl. at 8, ¶ 27, urging attendees to learn the customer’s

73
The seminar recording shows Mr. Clark personally believes in annuities
based on his clients’ success with the products, see, e.g., Recording Tr. Day 1 at 2,
32-33, 39, and it reveals his belief that annuities are superior products for seniors, id.
at 11, because they are more stable than other products, id. at 80. For him, no other
product offers similar advantages. Id. at 10.
The Dateline episode reported Mr. Clark’s belief in annuities and never stated
that annuities are unsuitable for everyone. It began by noting that annuities are a
“legitimate investment for some people.” Dateline Tr. at 1. Just before the Annuity
University segment began, the episode again stated that “Annuities are legitimate
investments for some people, and Clark is a strong advocate for them.” Id. at 8. The
episode therefore acknowledged the legitimacy of annuities for some and Mr. Clark’s
belief in them, accurately conveying those points from the seminar.

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personal situation to determine the most suitable product, id. at 8, ¶ 26, and

“repeatedly stress[ing]” annuities are not for everyone, id. at 33, ¶ 98; id. at 37,

¶ 108. On appeal, BCA similarly argues that Mr. Clark “stresse[d] the need to

determine whether a particular annuity is a suitable product for a prospective client.”

Id. at 7 ¶ 25; see also Aplt. Br. at 32-34.

The seminar recording largely negates BCA’s assertions. As previously

discussed, a main purpose of the seminar was to teach agents to sell annuities and to

get rich doing so. The seminar recording shows that Mr. Clark hardly addressed how

to determine if an annuity is suitable for a particular client, minimized the two

unsuitability concerns mentioned in the episode, and summarily discussed

disadvantages of annuities. The seminar’s emphasis on selling annuities to become

wealthy and its dearth of instruction on how to determine whether annuity products

are suitable for particular seniors make the “unsuitable products” part of the gist not

materially false.

The seminar contained only minimal discussion of the suitability of annuities

for potential clients generally and little meaningful discussion about suitability for a

particular client. Mr. Clark addressed “suitability” on the first day of Annuity

University when describing the power of emotional appeals. But rather than discuss

when an annuity is a good fit for a client, he shifted to the client’s desire for the

product, which the agent was encouraged to cultivate based on the sales tactics.

Recording Tr. Day 1 at 155-56. Mr. Clark said there are “issues today within our

business about suitability” because “regulators refuse to define ‘suitability[.]’ And

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the insurance companies are trying to get a handle on it. They don’t know how.” Id.

at 156. Instead of explaining what these statements were supposed to mean, he said

he based “suitability” on whether the client ultimately chooses to purchase the

annuity:

I say, look, you know when you take all the benefits of annuities, all the
things I’m talking about, but if a person buys an annuity for just . . . one
benefit, is it suitable? Well, gosh, I guess it is.

Id. He continued:

Now, let me define “suitability.” If the consumer feels after giving all
the information about a product, what it does, what it doesn’t do, how it
works, doesn’t work, and they want the product, it is suitable. It is
suitable.

Id. Mr. Clark then moved on to quiz the attendees on the six benefits of an annuity,

but mentioned no objective criteria to determine suitability or factors to guide the

agent’s advice to a particular client. Id.

Mr. Clark’s notion of suitability turned on the customer’s preference. His

message was that an annuity is suitable if the customer buys it, a message that aligns

with a main purpose of the seminar.

Comparison. The episode explained annuities could be unsuitable for two

related reasons: (1) annuities “lock up” the senior’s money; and (2) seniors seeking

to withdraw money early pay “stiff surrender penalties.” Dateline Tr. at 1. As

described in the “mislead seniors” gist analysis above, Mr. Clark and other seminar

speakers recognized that—despite mitigation options—high surrender penalties could

prevent seniors from readily accessing their full investment. Recording Tr. Day 1 at

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186 (“There are some high surrender charges . . . . You don’t put your money in to

take it out, put it in, take it out.”).

The seminar’s limited discussion of suitability, lack of meaningful instruction

on how to determine whether an annuity is suitable for a particular client, equating

suitability to customer desire, and teaching scary and misleading pitches to help

agents sell annuities and get rich—together show that Mr. Clark did not stress the

need or how to determine whether an annuity is suitable for a particular client.

The episode’s “unsuitable products” gist was not materially false.

ii. BCA’s arguments

None of BCA’s arguments demonstrate that Mr. Clark taught agents to make

an individualized suitability inquiry or otherwise show the episode’s “unsuitable

products” gist was materially false.

1) Addressing annuity criticisms

BCA alleged Mr. Clark taught attendees about the suitability of annuities for

prospective clients by discussing annuity criticisms. Am. Compl. at 8, ¶ 27; Aplt. Br.

at 33. But Mr. Clark’s discussion of criticisms was perfunctory and did not address

when an annuity is suitable for a particular client.

BCA points out that Mr. Clark told attendees he would “tear apart” annuities,

Aplt. Br. at 33, but he did not do so to address suitability. He began the seminar by

saying:

So, you know, I—of course, I’m going to show you guys how to sell
annuities. I’m going to tear them apart, and I’m going to tear them to

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 the bare bones and then build them back up so you really understand the
good and bad of the products and everything going on.

Recording Tr. Day 1 at 4; see also Aplt. Br. at 33. But his purpose in “tear[ing]

them” down was to “build them back up” and show attendees how to counter annuity

criticisms. This exercise, however, did not to instruct agents about suitability. Mr.

Clark’s discussion of specific criticisms then focused on either discrediting74 or

explaining each criticism away75 to complete the sale.76 See id. at 186-95; see also

74
Mr. Clark said: “What’s wrong with annuities? Surrender charges; they’ve
got low renewal rates; they’re taxed on death; if you take money out, it’s taxed as
ordinary income versus just a capital gain tax which is a lot less; there is no step-up
basis on death; they’re not FDIC insured; they’re not dramatic and jazzy; they’re
issued by the insurance company. You know, an insurance company cannot come
out with a good product, can they? You know, how dare they . . . . If there is a
criticism of annuities, this is it. This is the laundry list of annuities, negative laundry
list.” Recording Tr. Day 1 at 185-86. See also id. at 195-96 (concluding discussion
of criticisms saying: “Now, the point I’m making, folks, is this. Here’s the bad that I
covered, and then I gave you the good. Remember the 18 pillars of annuities? Take
those in combination. . . . [T]ake a look at our targeted market . . . . [T]ake those
two things in perspective. . . . Then take all the other financial products there is [sic],
and then take the criteria. Nothing can stack up to the safety, the liquidity, the tax
advantages, the returns without risk, the probate avoidance and the nursing home
protection. . . . So if this—this is the best product for our market, then why aren’t
you selling more?”).
75
Mr. Clark explained away annuity criticisms. See, e.g., id. at 187 (stating “I
don’t think that that’s a valid criticism” regarding surrender charges because, “[i]n the
real world, [seniors] never touch their money [in annuities]”); id. at 72 (stating
“Annuities are not liquid. That is baloney, that’s garbage, that is not true.”); id. at 189
(“Taxable upon death, that’s valid, but you can get a tax beneficiary rider, you can take
the 10 percent out a year.”); id. at 190 (“Taxes, income taxes versus capital gains tax.
That’s a valid criticism. But the thing is they don’t touch their money. They never take
their money out.”).
Other speakers similarly explained away surrender charge criticisms as
unimportant to senior clients. See Recording Tr. Day 2 at 6 (echoing Mr. Clark and
stating, “[a]ll this to-do about surrender charges when nobody takes any money out of an
Continued . . .

- 75 -
Brokers’ Choice III, 138 F. Supp. 3d at 1209-11 (summarizing criticisms invalidated

by Mr. Clark).

Mr. Clark’s summary discussion of annuity criticisms did not teach attendees

about the suitability of an annuity for a particular client. Rather, the seminar

generally stressed the positive aspects of annuities, which attendees memorized and

recited back to Mr. Clark,77 and endeavored to convince attendees of Mr. Clark’s

belief that annuities are the best product for seniors. He told attendees he would

teach them the “language of annuities,” Recording Tr. Day 1 at 24-25, effectively

encouraging them to mirror his approach. The seminar’s inclusion of annuity

criticisms did not make the episode’s gist about “unsuitable products” materially

false.

annuity. They’re afraid to. It might blow up or something, I don’t know.”); id. at 210
(echoing Mr. Clark and stating, “I mean, even when you—when you sit back and you
think about it, how much money is—I mean, what is it, almost 90 percent of—88 percent
of annuities are never touched? I mean, think about it, 88 percent of annuities are never
touched.”).
76
See, e.g., Recording Tr. Day 1 at 11 (“Just so you understand, you need to
expect, expect that your competition does not understand the products and they’re
going to bad-mouth annuities. Expect that.”); id. at 184-85 (“There is a zillion—
zillion objections [that may come from a client], but is the client selling you and
you’re buying it? Who’s selling who? Are you selling the client, or is the client
selling you? . . . So when you know the [facts about the six features of an annuity],
then who is selling who?”).
77
Mr. Clark said: “And an annuity—there’s six features—remember when I
said I want you to understand the language? I want you to memorize the six features
of an annuity: safety, liquidity, tax advantages, competitive returns without risk,
probate avoidance, and you can still structure the annuity to protect the asset from a
nursing home spend-down. Nursing home benefits.” Id. at 65; see also id. at 156-57
(repeating six benefits to Mr. Clark).

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 2) Suitability references

BCA’s brief posits three instances over the seminar’s two days when Mr. Clark

purportedly acknowledged an annuity may not be suitable. See Aplt. Br. at 31-33.

But merely alluding to suitability does not show that Mr. Clark taught attendees how

to make an individualized assessment. Indeed, each example demonstrates how little

Mr. Clark dealt with suitability, not how much.

First: “If you’re going to put your money in and take it out, put it in and take

it out, an annuity is not for you.” Recording Tr. Day 1 at 178; Aplt. Br. at 33. But

Mr. Clark said this while telling attendees how to defeat surrender charge criticisms

and close the sale. Recording Tr. Day 1 at 177-78. He then quickly dismissed the

relevance of his own statement: “In the real world, they never touch their money.

Seniors put their money in annuities, I’m sorry, but they never touch it. They never

take it out.” Id. at 187.

Second:

They’re only interested in, number one, is my money safe; number two,
can I get it if I need it; and number three, will I get a fair return. They
don’t want—oh, I want the highest returns, I want the S&P, and I want
this and that. Maybe if you have somebody like that, you’ve got the
wrong client. You’ve got the wrong client.

Id. at 76; Aplt. Br. at 33. Mr. Clark made this statement in the context of teaching

attendees how to use scare tactics and emotional appeals at sales seminars with

prospective clients and how to use the right messaging to close the sale, not to teach

them how to learn about an individual client’s needs and priorities. According to Mr.

Clark, a client would be “wrong” for an annuity by wanting “the highest returns . . .

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the S&P, and . . . this and that.” Recording Tr. Day 1 at 76. BCA’s reliance on this

statement from Mr. Clark to show that he instructed seminar attendees on how to

determine whether an annuity is suitable for a particular senior is not convincing.

Third, selling to a prospective client requires knowledge of:

[W]here their money is at right now—where their money is at—okay?—is that
good for the client? Should they keep it? How do you articulate that to them?
They don’t even know what they got to begin with. . . . You’re not selling
smoke and mirrors. You’re not selling garbage.

Recording Tr. Day 1 at 13; Aplt. Br. at 31.78 Mr. Clark’s question of whether a

customer’s money is in a place that is “good for the client” referred to how agents

should “articulate” the “selling” of annuities to close a sale. Recording Tr. Day 1 at

12-14. It did not address whether an annuity is suitable for a particular client.

3) Teaching to preserve assets

BCA argues Mr. Clark taught agents to “preserve client assets.” Aplt. Br. at

32. But even if that is so, he did not teach agents when or how asset preservation—

as opposed to other individual financial goals—would fit a particular client’s needs.

Instead, he discussed asset “preservation” as a key sales message:

But, see—by the way, when it comes to indexed annuities, what I tell
agents, don’t sell these products based on the performance. Play down
the performance. Okay? Play down the performance. Sell the
products. Remember, our first objective is preservation. Performance
comes secondary. Okay?

78
BCA cited this passage in support of its argument that Mr. Clark “stressed
‘truth and facts’ in making sales.” Aplt. Br. at 30. We analyze the passage here to
the extent it is relevant to the “unsuitable products” portion of the gist.

- 78 -
Recording Tr. Day 1 at 189.79 Although preserving assets may be a positive

objective for many seniors, it may not be the proper goal for others, like a senior who

needs flexibility to access invested money. Again, Mr. Clark instructed agents on

how to make an effective sales pitch without any individualized inquiry into the

client’s personal priorities or the suitability of the annuity for the client. It follows

that this undifferentiated pitch will promote an unsuitable product for some seniors.

iii. Conclusion

The seminar recording shows Mr. Clark did little to instruct agents on how to

determine the suitability of an annuity for the individual prospective client or urge

them to do so. His summary discussion of annuity criticisms and passing references

to suitability pale in comparison to his advocacy of making the sale to seniors.

Compared to the hard-sell purpose of the seminar and the tactics taught to scare and

mislead seniors, the suitability of annuities received short shrift. The episode could

have been more balanced on this point, but it was not materially false. See Corp.

Training Unlimited, Inc., 981 F. Supp. at 122 (declining to hold media defendant

79
Mr. Clark also taught attendees to win sales based on his experience that
asset preservation is the client’s primary objective, without instruction on how to
evaluate a client’s personal priorities or determine the suitability of an annuity for
those priorities. See Recording Tr. Day 1 at 34-35 (“When you have people trying to
take your sale away, when you have somebody trying to criticize what you do—if
that happens, here’s the key: When it comes to my clientele, the people that I work
with, preservation must precede performance. So my client’s first and foremost chief
objective is to preserve what they have. Their second objective, maybe, is returns.
So when it comes to those clients, this is the number-one product. And that’s what
I’m trying to say.”).

- 79 -
liable for truthful statements where additional facts “might have cast plaintiff in a

more favorable or balanced light”); see also Machleder, 801 F.2d at 55 (same).

* * * *

EPISODE GIST WAS NOT MATERIALLY FALSE

We agree with the district court that, when compared with the full seminar, the

gist of the episode was not materially false. The episode was not “likely to cause

reasonable people to think ‘significantly less favorably’” of BCA than if they had

viewed the seminar recording in its entirety. Bustos, 646 F.3d at 765.

3. Analysis of Dateline Episode Statements

The foregoing gist analysis compared the episode’s overall message, as

identified in Brokers’ Choice II, with the entire seminar. BCA’s amended complaint

also alleged that 12 statements in the episode were false and defamatory. Many of

them overlap with and contribute to the gist of the episode, and we have addressed

those statements in our analysis of the gist. Nonetheless, to the extent any fall

outside the gist or otherwise deserve separate analysis, we consider them below.

We do so understanding they must be viewed “in the context of the whole

[episode],” Rinsley, 700 F.2d at 1310, and compare them with the full context of the

seminar. This is consistent with cases in which courts have addressed the alleged

false and defamatory publication taken as a whole and also addressed particular

statements in the publication alleged to be false and defamatory. See, e.g., Green v.

CBS, Inc., 286 F.3d 281, 284-85 (5th Cir. 2002) (analyzing individual statements and

gist of broadcast as a whole to determine that broadcast, taken as a whole, was

- 80 -
substantially true); Chapin, 993 F.2d at 1098 (“Notwithstanding the non-

actionability, in isolation, of the various statements we discussed [earlier in the

opinion], we would err if we did not consider the article as a whole.”); Klentzman v.

Brady, 456 S.W.3d 239, 256 (Tex. App. 2014) (explaining that plaintiff challenged

both the falsity of individual statements and the gist created by omission of key

facts).

Although BCA does not contest the accuracy of the words the episode quotes

from the seminar, it argues the statements about BCA in the Dateline episode

conveyed a materially false depiction of the seminar. We compare the statements

with the full context of the seminar and conclude that they are not materially false.

a. Statement 180

Mr. Hansen introduced the episode as follows:

Join us in 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 seniors’ homes to reveal the tricks some agents use to
puff their credentials to make a sale.

Dateline Tr. at 2; Am. Compl. at 25, ¶ 73.81 BCA alleged this statement is materially

false because Mr. Clark did not teach scare tactics; he addressed “a legitimate and

80
We address the episode statements in the same order they appear in BCA’s
amended complaint and conclude with BCA’s alleged description of an episode
preview aired on The Today Show.
81
After Mr. Hansen stated that Dateline discovered “agents being taught to
scare seniors,” the introductory narration paused and the episode interjected a short
Continued . . .

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important aspect of financial management for seniors” and instructed agents to

“identify potentially frightening or disturbing issues which must be addressed in

determining the suitability of insurance products.” Am. Compl. at 25-26, ¶ 75.

As outlined above in our “scare seniors” and “unsuitable products” gist

analysis, the seminar recording belies BCA’s allegations and shows that Mr. Clark

taught scare tactics to sell annuities without significant inquiry into the product’s

suitability for a prospective senior client.

Statement 1 was not materially false.

b. Statements 2 and 3

After the introduction, the episode addressed agents’ tactics in sales meetings

by showing video of interactions with elderly customers. BCA alleged the episode

depicted agents “attempting to trick and deceive senior citizens into purchasing

unsuitable insurance products with their retirement savings.” Am. Compl. at 26,

¶ 77. This segment does not mention BCA. Dateline Tr. at 2-7.

Mr. Hansen then transitioned to Annuity University:

We’ve seen some of the tactics insurance agents use to sell 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 these salesmen we’ve met so far studied here, but
the State of Alabama agreed to help us investigate by issuing insurance

clip of Mr. Clark from the seminar telling attendees: “[S]ee, that’s scary and it
should be scary.” Dateline episode at 4:55-5:05; Am. Compl. at 25, ¶ 74.

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 licenses to two Dateline producers, so we could attend—and bring
along our hidden cameras.

Dateline Tr. at 7; Am. Compl. at 26-27, ¶¶ 78-79. Construing BCA’s complaint

liberally, we think BCA attempted to allege the episode omitted “details of the

collusion” between Alabama and Dateline. Am. Compl. at 27, ¶ 79. But the alleged

falsity of this statement does not concern BCA, and is thus not materially false as to

BCA. Bustos, 646 F.3d at 765 (“[T]he alleged misstatement must be likely to cause

reasonable people to think ‘significantly less favorably’ about the plaintiff . . . .”

(emphasis added)).

Statements 2 and 3 were not materially false.

c. Statement 4

Following Statements 2 and 3, the Dateline episode immediately cut to hidden

camera footage from Annuity University of Mr. Clark speaking, followed by Mr.

Hansen’s voiceover:

(Hidden Camera). Mr. Clark: Annuities are not liquid? That is baloney.

Mr. Hansen: This is the man in charge of ‘Annuity University’—Tyrone
Clark, the self-proclaimed king of annuity sales. Annuities are
legitimate investments for some people, and Clark is a strong advocate
for them. He says they're safe and have no risk,[82] selling points
especially appealing to seniors.

Mr. Clark: What I sell in [sic] peace of mind . . . .

82
The episode superimposed the words “No Risk” as Mr. Hansen said them.
Dateline episode at 29:30-29:34.

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Dateline Tr. at 7-8; Am. Compl. at 27, ¶ 80. The amended complaint alleged that the

excerpt showed:

 Mr. Clark “teaches agents deceptive sales practices, based on scaring seniors,
and that the agent can then sell back the ‘peace of mind’ taken away during
the scary and deceptive sales pitch, by selling unsuitable annuity products.”
Am. Compl. at 27-28, ¶ 82.

 In context, “peace of mind” refers to the fact that annuities are not subject to
loss from market volatility. Id. at 28, ¶ 85.

 Contrary to Mr. Hansen’s assertion, Mr. Clark never said annuities “have no
risk.” Id. at 27, ¶ 81.

Nothing in this statement from the episode refers to scaring seniors. BCA’s

description of what this statement nonetheless conveyed closely resembles the “scare

seniors” gist of the episode, which we have addressed at length above. Mr. Clark

taught agents to uncover a senior’s emotionally based problem and then solve it by

selling the senior an annuity.

Moreover, the seminar recording contradicts BCA’s assertion that Mr. Clark

never said annuities “have no risk.” Am. Compl. at 27, ¶ 81. He stated several times

that a key feature of an annuity is that it offers “[c]ompetitive returns without risk.

Without risk.” Recording Tr. Day 1 at 66; id. at 156 (reiterating that one of the six

features of an annuity is that it is “[w]ithout risk”); see also Brokers’ Choice III, 138

F. Supp. 3d at 1206 n.8 (compiling Mr. Clark’s statements that annuities offer no

risk).

Statement 4 was not materially false.

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 d. Statement 5

Following Statement 4, Mr. Hansen stated:

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.”[83] 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.”[84] 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?[85]

Dateline Tr. at 8; Am. Compl. at 29, ¶¶ 86-87. BCA alleged that Mr. Hansen left out

that Massachusetts never proved any of its allegations against Mr. Clark and that the

settlement terminated the state’s claim. Am. Compl. at 29, ¶ 87. But the episode

stated that the Massachusetts case was settled “without admitting any wrongdoing,”

contradicting BCA’s allegations. Dateline Tr. at 8; Am. Compl. at 29, ¶¶ 86-87. See

Machleder, 801 F.2d at 55 (declining to hold media defendant liable for truthful

statements where additional facts would have cast plaintiff in a “more favorable”

light).

Statement 5 was not materially false.

83
The episode included an image of the complaint in the background and
enlarged the words “dishonest scheme to deceive, coerce, and frighten the
elderly . . .” as Mr. Hansen stated those words. Id. at 29:58-30:04.
84
The episode included an image from the training manual in the background
and enlarged the words “12-year-old” and “fear, anger or greed buttons” as Mr.
Hansen stated those words. Id. at 30:10-30:17.
85
The episode superimposed a label stating “Scare Tactics” when Mr. Hansen
said those words. Id. at 30:30-30:32.

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 e. Statement 6

After he invited viewers to watch Dateline’s hidden camera footage, Mr.

Hansen concluded Statement 5 by asking: “Remember those scare tactics?” The

episode then cut to the seminar footage interspersed with Mr. Hansen’s voiceover

commentary:

(Hidden Camera). Mr. Clark: And I’m bringing these things up that
disturb the hell out of them.

Mr. Hansen: For Tyrone Clark, disturbing people seems to be Annuity
Sales 101.

(Hidden Camera). Mr. Clark: I bring out the stuff that—where they
can’t sleep at night.

Dateline Tr. at 8; Am. Compl. at 29, ¶ 88. BCA alleged that Mr. Clark never taught

agents to mislead seniors into purchasing annuities “by means of fabricated fears and

scare tactics.” Am. Compl. at 30, ¶ 89. Instead, BCA alleged, Mr. Clark explained

to attendees “that a good agent brings value to his prospective clients by uncovering

issues that they will regard as important but have not considered, or that they have

considered but not realized the potential impact [of]” and that uncovering these issues

is the “only way to ensure a prospective client is considering suitable insurance

products.” Id. at 31, ¶ 91.

As explained above in our “scare seniors” and “unsuitable products” gist

analysis, the seminar recording disproves BCA’s allegations and shows that Mr.

Clark taught agents to use scare tactics to sell annuities without stressing that they

inquire into the product’s suitability for a prospective senior client.

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 Statement 6 was not materially false.

f. Statement 7

Immediately following Statement 6, the episode presented the following

voiceover and seminar excerpt:

Mr. Hansen: And how do you make them worry? One way is to suggest
their money may not be safe, even in a bank, by telling a potential client
something like this.

(Hidden Camera). Mr. Clark: FDIC is insolvent.[86] FDIC only has
$1.37 per every $100 on deposit.

Dateline Tr. at 8; Am. Compl. at 31, ¶ 92. BCA alleged this statement meant that

Mr. Clark taught agents to “make potential clients worry that their money may not be

safe in banks.” Am. Compl. at 31, ¶ 93. BCA further alleged that Mr. Clark never

told attendees to represent that a customer’s money may not be safe in a bank

because he said a bank may be the proper place to keep funds in some situations.

Am. Compl. at 32, 34 ¶¶ 94, 99. The seminar recording undercuts these allegations.

At the seminar, Mr. Clark reiterated that banks lack assets and reserves. He

repeatedly asserted the superiority and stability of the life insurance industry over

banks. For example:

The banks don’t have the reserves. No other institution does. Because
the banks receive money, and they lend out 98 percent—excuse me—
90—92 percent. They’ll lend the money out. People think you put
money in the bank, it’s sitting in the back room there, in the vault. It’s
not. Only a life insurance company is required to have the kind of
reserves to back 100 percent of that money to insure that if that

86
The episode superimposed a label of “Banking Fears” when Mr. Clark said
“The FDIC is insolvent.” Id. at 30:54-30:58.

- 87 -
 individual contract owner or annuitant is going to take an income for the
rest of their life that those reserves will guarantee and fulfill the income
for the rest of their life.

Recording Tr. Day 1 at 50-51.87

Mr. Clark used this and other statements to bolster the superiority of annuities

by implying that banks may be unsafe, or at least less safe than an annuity.

Statement 7 was not materially false.

g. Statement 8

Following Mr. Hansen’s question, “And how do you make them worry?”, from

Statement 7, the episode included the following voiceover and seminar excerpt:

Mr. Hansen: Another way is to mention a senior's natural fear of
nursing homes.

(Hidden Camera). Mr. Clark: I help my clients to protect their life
savings[88] from the nursing home and Medicaid seizure of their assets.
See, that’s scary, and it should be scary.

87
See also Recording Tr. Day 1 at 77-78 (“[T]he life insurance industry owns
and controls more assets than all of the assets in all the banks in the entire world
combined. . . . The life insurance industry bailed out the banking industry during the
Great Depression.”); id. at 83 (“See, during the Great Depression, the life insurance
industry lent millions and millions of dollars to the banks who had no money. That’s
the strength and safety of our industry, and that’s leadership.”).
Mr. Clark also compared annuities with bank products: “Nothing can stack up
to the safety, the liquidity, the tax advantages, the returns without risk, the probate
avoidance and the nursing home protection [of an annuity.] Just take any—take a
bank CD. It doesn’t have all those.” Id. at 196.
88
The episode superimposed a label stating “Nursing Home Fears” when Mr.
Clark said: “I help my clients to protect their life savings.” Dateline episode at
31:07-31:10.

- 88 -
Dateline Tr. at 8; Am. Compl. at 34, ¶ 100. BCA characterized this statement as

saying Mr. Clark taught insurance agents “to prey on seniors’ fears of nursing homes

and that this is one of several ways [he] teaches agents to scare seniors into buying

annuities.” Am. Compl. at 34-35, ¶ 101. BCA alleged that, in context, Mr. Clark

actually taught that the financial implications of nursing homes are an important part

of effective financial planning for seniors. Id. at 35, 36, ¶¶ 102, 104.

As explained in our “scare seniors” gist analysis above, Mr. Clark told

attendees to use seniors’ fear of asset seizure by nursing homes to sell annuities.

Taken in context, Mr. Clark used his discussion of nursing homes to teach the agents

an emotional appeal to make sales.

Although guest speakers at the seminar addressed financial planning by

explaining Social Security taxation and Medicaid—which are related to nursing home

planning—these sessions were structured to teach agents how to convince seniors to

buy annuities as part of their financial planning. See Recording Tr. Day 1 at 201.

For example, Mr. Clark’s nephew, Joe Clark, began his session stating: “[O]ur

discussion today, folks, is Medicaid planning with annuities.” Id. at 211.89

The seminar’s financial planning instruction did not change that Mr. Clark also

taught attendees to leverage seniors’ fears of nursing homes to make sales. Thus, the

89
Mr. Clark introduced these sessions as follows: “But you need to
understand Social Security taxation and Medicaid planning. Okay? You need to
understand that stuff. And Lance and Travis is [sic] going to cover this with you
guys, and then Joe, my nephew . . . he’s going to cover Medicaid planning with
annuities.” Recording Tr. Day 1 at 201.

- 89 -
episode’s omission of Annuity University’s financial planning instruction was not

“likely to cause reasonable people to think ‘significantly less favorably’” of BCA.

Bustos, 646 F.3d at 767; see Corp. Training Unlimited, Inc., 981 F. Supp. at 122

(explaining that failure to “include additional facts which might have cast plaintiff in

a more favorable or balanced light” does not create liability where a media defendant

broadcasts truthful statements).

Statement 8 was not materially false.

h. Statements 9 and 10

Following Statement 8, the episode included the following voiceover and

seminar excerpt:

Mr. Hansen: The next step? Promise people easy access to their
money. Even though, with some exceptions, annuities lock up most of
your money for a specified number of years, listen to the sales pitch
Tyrone Clark suggests.

(Hidden Camera). Mr. Clark: There are more ways to access your
money.[90] There are more options. There are more choices to access
your money from an annuity than any other financial instrument.

Mr. Hansen: We asked Minnesota Attorney General Lori Swanson to
watch what our hidden cameras had captured.

Mr. Hansen: How would you characterize what this man has said?

Attorney General Swanson: I think that he is not telling the truth when
he tells those agents that an annuity is the most liquid place a senior
citizen can put their money. It is simply not true.

90
The episode superimposed a label stating “Promise Easy Access” when Mr.
Clark said: “There are more ways to access your money.” Dateline episode at 31:31-
31:34.

- 90 -
Dateline Tr. at 8-9; Am. Compl. at 36-37, ¶¶ 105-06. BCA characterized this excerpt

to mean that Mr. Clark taught agents to deceive seniors into believing an annuity is

the most liquid place for their money. Am. Compl. at 37, ¶ 107. BCA alleged that

Mr. Clark never said that “an annuity is the most liquid place a senior citizen can put

their money”—as Attorney General Swanson said he did—and that, in any case, Mr.

Clark stressed that annuities are not proper for people who want to routinely

withdraw funds. Id. at 37, ¶¶ 106, 108. The seminar recording indicates otherwise.

First, Mr. Clark stated at the seminar that annuities provide the most choices

for seniors to access their money. Rebutting criticisms that annuities are not liquid,

Mr. Clark concluded the Statement 8 quote above by saying:

No other investment or savings vehicle in existence gives you the
number of options of accessibility that you have with an annuity.
Annuities are not liquid[?] That is baloney, that’s garbage, that is not
true. . . . There are more ways to access your money than any other
financial instrument. So liquidity? Yes.

Recording Tr. Day 1 at 72-73.

Second, as explained above in our “mislead seniors” and “unsuitable products”

gist analysis, Mr. Clark’s acknowledgement that “[i]f you’re going to put your money

in and take it out, put it in and take it out, an annuity is not for you,” id. at 178, was

made to help attendees counter surrender charge criticisms and was quickly

dismissed as not relevant to seniors: “In the real world, they never touch their

money. Seniors put their money in annuities, I’m sorry, but they never touch it.

They never take it out.” Id. at 187. Thus, Mr. Clark taught attendees to dismiss

annuity criticisms without teaching that annuities may be improper for some clients.

- 91 -
 Third, Attorney General Swanson’s comment disputing Mr. Clark’s assertion

about annuity liquidity responded to Mr. Hansen’s invitation to “characterize” what Mr.

Clark had said. She expressed her opinion that “he is not telling the truth” that an

“annuity is the most liquid place” for seniors to invest.91 Her comment matched opinions

about annuity liquidity that other financial experts expressed during the episode. See

Dateline Tr. at 1. The episode’s inclusion of the attorney general’s comment was not

actionable.

To the extent her comment asserted a fact that is provably true or false, the

asserted fact is that an annuity is not the most liquid investment for seniors. When

compared to the seminar, this fact was not materially false under the Masson/Bustos

standard. As explained above, even Mr. Clark recognized that an annuity can lock up

money—despite mitigation options—when he talked about surrender charges. Recording

Tr. Day 1 at 186 (“There are some high surrender charges . . . You don’t put your money

in to take it out, put it in, take it out.”). He also thought this feature of an annuity is

beneficial for asset preservation. Id. (“Surrender charges enables [sic] higher rate of

return. It deters people trying to take the money from the client.”). Mr. Clark therefore

contradicted his own statement about “choices to access your money.” With Mr. Clark

91
We also are not convinced that Attorney General Swanson’s statement
disagreeing with Mr. Clark about annuity liquidity “is a communication that holds an
individual up to contempt or ridicule” and therefore capable of defamatory meaning.
Keohane, 882 P.2d at 1297; see also Burns v. McGraw-Hill Broad. Co., Inc., 659
P.2d 1351, 1357 (Colo. 1983) (“A finding that the language used was defamatory
must be predicated on the context of the entire story and the common meaning of the
words utilized.”).

- 92 -
sending mixed messages about annuity liquidity at the seminar, Attorney General

Swanson’s statement, compared to the whole seminar, was not materially false under the

Masson/Bustos standard.

The “not telling the truth” part of the Attorney General’s comment, read in

context, also meets the requirements for protected opinion. In TMJ Implants, we

recognized that the Colorado Supreme Court, in determining “how to distinguish a

defamatory statement from a protected expression of opinion,” has referred to the U.S.

Supreme Court’s decision in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), and the

Restatement (Second) of Torts § 566 (1977) (“Restatement”). TMJ Implants, 498 F.3d at

1183. The Milkovich Court, drawing from Hepps, said “a statement of opinion relating to

matters of public concern which does not contain a provably false factual connotation

will receive full constitutional protection.” 497 U.S. at 20. It also recognized protection

for “rhetorical hyperbole,” a “vigorous epithet,” and “loose, figurative” language, id. at

17 (quotations omitted)—“protection for statements that cannot reasonably [be]

interpreted as stating actual facts,” id. at 20 (quotations omitted). Section 566 of the

Restatement states: “A defamatory communication may consist of a statement in the

form of an opinion, but a statement of this nature is actionable only if it implies the

allegations of undisclosed defamatory facts as the basis for the opinion.” The TMJ

Implants panel noted “the Colorado Supreme Court also views the [Milkovich and § 566]

formulations as congruent.” 498 F.3d at 1186 (citing and quoting Colorado cases).

In the episode, Mr. Hansen asked Attorney General Swanson to “characterize” Mr.

Clark’s statement that “[t]here are more choices to access your money from an annuity

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than any other financial investment.” She disagreed with Mr. Clark, responding that “he

is not telling the truth”; “[i]t is simply not true.” Dateline Tr. at 9. In context, these

expressions were statements of disagreement. They were not like the newspaper column

stating that Mr. Milkovich had “lied at the [judicial] hearing . . . [under] solemn oath,”

Milkovich, 497 U.S. at 5, which implied he had committed perjury, and therefore was not

protected, id. at 21. Unlike the Milkovich statement, Attorney General Swanson’s

response was “the sort of loose, figurative” language the Constitution protects. Id.92

Here, the Dateline episode explained the basis for Attorney General Swanson’s

comment, stating that annuities may lock money up “for a specified number of years” and

that early withdrawal can result in surrender penalties. Dateline Tr. at 1, 9. It also

acknowledged the opposing viewpoint that annuities are legitimate investments for some

people, that Mr. Clark was a strong advocate for them, and—immediately before

Attorney General Swanson’s comment—that there are “some exceptions” to annuities’

locking up money for years. Id. at 9.

Attorney General Swanson’s response was similar to the statements analyzed in

Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995). In Underwager, the

Ninth Circuit found statements in a Sixty Minutes Australia documentary broadcast to be

92
See also Gardner, 563 F.3d at 989-90 (explaining that defendant’s
statements did not rise to the same level of criminal accusations that were at issue in
Milkovich); Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995)
(stating that the term “lying” applies to a “spectrum of untruths” and in this case was
no more than “nonactionable ‘rhetorical hyperbole’ . . . used by those who considered
[the appellant’s] position extremely unreasonable,’” unlike the verifiable assertion of
perjury implied in Milkovich (alteration in original)).

- 94 -
non-actionable opinion after examining the “totality of the circumstances in which [they

were] made.” Id. at 366. Like the Sixty Minutes episode in Underwager, “the format of

the [Dateline] Program is an exploration of both sides of controversial topics and

individuals. [Mr. Clark, through his lawyer,] was given a chance to respond to his critics,

but he declined to be interviewed for the program.” Id. at 367.

Because Attorney General Swanson’s comment contained loose, figurative

language, and was based on facts presented to the viewer in a context of opposing

viewpoints, it was protected opinion. Id.93 The Defendants cannot be held liable for

including a state attorney general’s statement that disagrees with Mr. Clark about the

relative liquidity of annuities.

* * * *

Statements 9 and 10 were not materially false, and Attorney General

Swanson’s comment was also protected opinion.

i. Statement 11

The episode next discussed an “underground industry” that helps agents “puff

up their credentials and mislead you about who they really are.” Dateline Tr. at 9.

The episode showed hidden camera footage of Annuity University speaker Richard

93
See Riley v. Harr, 292 F.3d 282, 291-92 (1st Cir. 2002) (finding assertion that
plaintiff was lying to be protected opinion where basis for the opinion was disclosed and
both sides of the issue were exposed); see also Gardner, 563 F.3d at 988-89 (same);
Underwager, 69 F.3d at 366-67 (concluding speaker’s statement that the plaintiff was
lying was protected opinion because the speaker made the statement in the context of an
investigative broadcast program, took the opposite side of the issue from the plaintiff, and
used rhetorical language).

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Duff with voiceovers explaining that an agent can pay to have his or her name on the

cover of a financial book:

Mr. Hansen: At Annuity University, this ad says you can be the author
of a book called “Alligator Proofing Your Estate.” Apparently, agents
like the idea of pretending to be authors, because Dateline found copies
of the same “Alligator” book supposedly co-written by Jeffrey D.
Lazarus, Steven Delott, and Ronald and Robert Russell.

Dateline Tr. at 9; Am. Compl. at 39-40, ¶ 111. BCA alleged that agents never

pretended to be the “sole authors” of the book and that the book is “not ghost-written

or misleading to readers in any way.” Am. Compl. at 39-40, ¶ 111. Rather, the

seminar taught legitimate methods for establishing credibility. Id. at 40, ¶ 114.

As explained in the “mislead seniors” gist analysis above, the seminar

recording shows Annuity University promoted the use of misleading credentials

through ghost-written articles and paying for placement as a book author or radio

show guest. Even though the seminar taught other legitimate methods for

establishing credibility, as BCA contends, this does not show Statement 9 is

materially false. See Machleder, 801 F.2d at 55 (declining to hold media defendant

liable for truthful statements where additional facts would have cast plaintiff in a

“more favorable” light). BCA’s alleged difference between being a paid “sole

author” and a paid co-author—as the episode describes—is a “[m]inor inaccurac[y]”

at most and is also insufficient to render the statement materially false. Masson, 501

U.S. at 517.

Statement 11 was not materially false.

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 j. Statement 12

BCA’s amended complaint alleged that a false and defamatory preview of the

Dateline episode aired on The Today Show (“Preview”).94 The Complaint described

the Preview as follows:

During the Preview, Today Show host Meredith Viera (“Viera”), posed
the following question to viewers: “Are [seniors] being tricked out of
their hard earned money . . . by deceptive sales practices?” Viera then
proceeded to answer the question by playing a voiceover narrative of
Hansen describing the program while images of an allegedly deceived
senior were presented to viewers followed by hidden-camera images of
Clark while speaking in the October 2007 classes. While showing these
images, Hansen asked: “Are some agents being coached on how to
mislead people when they sell annuities?” . . . The Preview then
showed images of Minnesota Attorney General Lori Swanson stating
that Clark’s statements during the secretly taped sessions of Annuity
University are a “lie.”

Am. Compl. at 22-23, ¶ 67 (emphasis omitted). BCA alleged that the preview

conveyed that “Clark teaches insurance agents how to mislead and exploit people

when they sell annuities,” id. at 23, ¶ 68, but Mr. Clark never taught attendees how to

scare or mislead seniors and instead stressed honesty and sincerity, id. at 23, ¶ 69.

BCA also alleged that the edition of the “Alligator” book displayed in the Preview

had not been marketed at Annuity University for over five years and that the agent’s

94
Statements 1-11 are direct quotes from the Dateline episode alleged to be
false and defamatory. Statement 12 comes from The Today Show Preview, rather
than the episode itself. Because BCA similarly alleged that the Preview is false and
defamatory, we quote the Preview description as it appears in BCA’s amended
complaint. Am. Compl. at 22-23, ¶ 67. Because the parties have not provided a copy
of the Preview, or a transcript of its content, we accept BCA’s description as
accurate.

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chapter in the book was clearly delineated, so the book was not ghost-written. Id. at

24, ¶ 71.

Our analysis of this statement tracks our gist analysis and our resolution of

Statements 6 and 11. BCA’s allegation regarding the “Alligator” book is insufficient

to render the statement materially false. Because the seminar marketed ghost-written

articles and paid authorship opportunities, the book version used in the preview is a

“[m]inor inaccurac[y]” at most and is therefore not actionable. Masson, 501 U.S. at

517. Because Mr. Clark taught the use of scare tactics and misleading seniors,

Statement 12 was not materially false.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal.95

95
Because we affirm the district court’s dismissal, we deny as moot BCA’s
request for a new trial judge on remand.

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