CL&M Wins Appeal in Brokers’ Choice of Am. v. NBC Universal

The 10th Circuit Court’s decision in Brokers’ Choice of Am. v. NBC Universal places our clients’ libel case back on the docket with clear guidance about how to proceed in accordance with its rulings. It rejects the common media defense tactics of filing a motion to dismiss designed to place evidentiary burdens of proof on libel plaintiffs at the pleading stage, coupling the motion with an application for a stay of all discovery which, if granted as it was here, stops the case while briefs are filed, hearings held, decisions considered, and months and even years pass. If the motion to dismiss is granted, appeals like the one just decided are processed after more briefing, argument, deliberation and delay. The Circuit Court cited Herbert v. Lando, a 1979 decision of the U.S. Supreme Court which put the brakes on claims by defendant news organizations in libel cases that they had a privilege to withhold from discovery by the plaintiff information they gathered for a story, such as the “hidden camera” video of our client Tyrone Clark’s two day seminar for insurance agents – an event which Dateline producers surreptitiously recorded after using false insurance agent licenses to gain entry to a program limited to independent insurance agents. That video was the material from which, as the Court put it, a “mere 112 words” were selected by Dateline to characterize our client as a teacher of deceptive tactics which agents could use to con vulnerable seniors and retirees into buying unsuitable annuities. Citing plaintiffs’ need for evidence to meet their burden of proof on the issue of defendants’ fault, the Circuit Court rejected defendants’ claim of privilege, finding that the unedited video footage “is directly relevant to the ultimate issue … whether Dateline maliciously or recklessly mischaracterized the gist of the seminar.”  
Brokers’ Choice of America was represented by litigation counsel John J. Walsh and former associate Michael K. Plumb.

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