Tuesday, November 22, 2016 12:59 PM PT
NBC Rebuffs Defamation
Claim at 10th Circuit

     DENVER (CN) - NBC Universal "destroyed" an insurance mogul's career in a broadcast that suggested he was defrauding senior citizens, Brokers' Choice of America attorneys told the 10th Circuit on Wednesday, though a federal judge has ruled twice that the "Dateline" report was "substantially true."
     In the April 2008 "Dateline" broadcast, "Tricks of the Trade," two reporters teamed up with the Alabama Department of Insurance to get fake insurance credentials and attend a two-day insurance event hosted by Tyrone Clark and Brokers' Choice of America. After attending classes and lectures led by Clark, "Dateline" reported that Clark taught how to close a sale by scaring seniors.
     Brokers' Choice sued, calling the report "unauthorized and deceitful," as it suggested Clark told the agents to take advantage of senior citizens by pushing them into buying unsuitable policies.
     The defamation complaint, filed in U.S. District Court for Colorado in March 2009, was dismissed by U.S. District Judge Christine Arguello in 2011, who found that the "Dateline" report was "substantially true and, thus, was not a defamatory portrayal of the at-issue statements."
     Brokers' Choice appealed, and in 2014 successfully urged the 10th Circuit to partially reverse. The 10th Circuit panel found that the District Court had improperly investigated each of Clark's statements individually, rather than looking at the larger picture. It remanded, reversing the determination that the footage was protected under Colorado's Journalist Shield Law.
     On remand, Arguello dismissed with prejudice in September 2015, now armed with access to the tapes and transcripts the reporters had collected.
     "Dateline's portrayal of what occurred at the seminar was, in fact, 'substantially true,'" Arguello wrote again.
     "The court has examined the totality of the circumstances presented by the entirety of Mr. Clark's 'Annuity University' seminar by reviewing the full, unedited transcripts of the seminar and comparing them to the full 'Dateline' broadcast; that comparison did not clearly and convincingly show the aired statements would have left viewers with a false impression of the gist of Clark's seminars."
     Brokers appealed again a month later.
     At the 10th Circuit hearing Wednesday morning, Brokers' Choice attorney Stephen Wong told the panel that the District Court was undermining the seniors' ability to "make decisions."
     "Most people in this room would be considered seniors," Wong said. "It's suitable if the seniors have been provided all the relevant information. If I make the clear offer, I've been informed, senior or not.
     "What is so disturbing about this case," Wong continued, "this man was essentially called a con man. It destroyed his business."
     U.S. Circuit Judges Robert Bacharach, Nancy Moritz and Scott Matheson said it all came down to whether Dateline's critique of the seminar was deceptive.
     "An opinion can't be true or false. It's an opinion," Matheson said. "Whether they're suitable or not, the question is, 'Did "Dateline" accurately represent the seminar?'"
     NBC Universal attorney Thomas Kelley said the report was accurate.
     "This case can clearly go no further," Kelley said. He said the falsity element of the defamation claim is a dead lead, as it "requires falsity to be proved."
     "Clark has admitted that annuities are not suitable for all seniors," Kelley said. "Clark was speaking untruthfully [in the seminar]."
     This is not the first time Clark and Brokers' Choice sales practices have come under fire. A 2002 Wall Street Journal article quoted Clark telling insurance agents at his "Annuity University" class to "Treat [seniors] like they're blind 12-year-olds."
     Attorney Long is with Jones and Keller in Denver.