10th Circuit Finds ‘Dateline’ Exposé ‘Mostly True’

DENVER (CN) — Finding that an NBC “Dateline” episode that suggested Brokers’ Choice of America was defrauding old people was “mostly true,” the 10th Circuit on Wednesday dismissed defamation and fraud claims against the network.

Brokers’ Choice of America (BCA) sued NBC Universal in 2009, after reporters posed as insurance agents to attend a BCA seminar hosted by its founder, Tyrone Clark.

In the 2008 episode, “Tricks of the Trade,” the investigative news show appeared to show BCA’s “Annuity University” seminar teaching agents scare tactics and misleading techniques to persuade senior citizens to buy unsuitable annuities.

Brokers’ Choice accused “Dateline” of defaming it with “half-truths” and “outright lies.”

“As a result of this reckless and maliciously defamatory broadcast, BCA’s business and reputation and Clark’s personal and business reputations have been severely harmed,” the complaint states.

U.S. District Judge Christine Arguello dismissed BCA’s complaint in January 2011, after finding the NBC episode was materially true.

The 10th Circuit heard the case for the first time in 2014, and partially reversed, finding that the district trial court had improperly investigated Clark’s statements on an individual basis, instead of looking at the context of the episode as a whole.

Arguello dismissed Brokers’ claims again in 2015 after reviewing the tapes and transcripts collected by the NBC reporters.

After hearing the case for the second time, the 10th Circuit affirmed on Wednesday. Tenth Circuit Judges Scott Matheson, Robert Bacharach and Nancy Moritz, agreed that while the episode may have had small inaccuracies, the overall narrative was true to the facts.

“We agree with the district court that, when compared with the full seminar, the gist of the episode was not materially false,” the 98-page opinion states. “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.”

Brokers’ Choice claimed that the episode inaccurately portrayed aspects of the seminar, including Annuity University’s online advertisement for agents to write their own book, called “Alligator Proofing Your Estate.”

“[The episode] stated that ‘agents like the idea of pretending to be authors, because “Dateline” found copies of the same “Alligator” book supposedly co-written by’ four individuals,” the opinion states.

Brokers’ Choice claimed the “Alligator book” was not ghostwritten, and featured a chapter that was in fact written by the named licensed insurance agent.

The 10th Circuit, however, saw the “Alligator book” as one of many misleading tactics to inflate an agent’s credibility, as speakers also taught the agents how to pay for pre-packaged radio interviews and ghostwritten articles to make the agents look like experts.

“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,” the opinion states.

The panel concluded that BCA’s claims that the episode misrepresented the seminar were false.

“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 appeals court found.

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