Brokers' Choice of America, Inc. v. NBC Universal, Inc. (861 F.3d 1081, 2017)

MATHESON, Circuit Judge.

TABLE OF CONTENTS

I. BACKGROUND... 1091

A. Factual Background... 1091

1. The BCA Seminar and NBC’s Secret Recording.. .1091

2. The Dateline Episode... 1092

B. Procedural Background... 1094

1. District Court’s Dismissal of Original Complaint and Stay of Discovery.. .1094

2. Brokers’ Choice I: District Court’s Dismissal of First Amended Complaint. ..1094

a. BCA’s amended complaint.. .1094

b. BCA’s motion for production of the seminar recording...1095

c. NBC’s motion to dismiss... 1095

3. Brokers’ Choice II: Tenth Circuit’s Partial Reversal... 1096

4. Brokers’ Choice III: District Court’s Dismissal of the Amended Complaint Based on Comparison of the Episode with the Seminar Recording.. .1096

a. Scare tactics... 1097

b. Suitability of annuities... 1098

c. Misleading credentials... 1098

II. BCA’S PROCEDURAL OBJECTIONS... 1098

A. Law of the Case... 1099

1. Legal Background... 1099

2. Analysis... 1100

B. Federal Rule of Civil Procedure 12(g)(2).. .1101

1. Legal Background.. .1101

2. Analysis... 1102

C. Consideration as a Motion to Dismiss ...1102

1. Legal Background... 1103

2. Analysis.. .1103

III. MERITS OF THE DISTRICT COURT’S DISMISSAL.. .1104

A. Standard of Review and Analytical Considerations.. .1104

1. Standard of Review and Sufficiency of a Complaint.. .1104

2. Effect of an Exhibit to a Complaint. ..1105

B. Legal Background... 1105

1. Development of Defamation Law.. .1105

2. Material Falsity... 1106

a. Materiality... 1107

b. Words out of context... 1107

c. Omitting favorable information.. .1108

d. Context as a whole... 1108

3. The First Amendment and Colorado Defamation Law... 1108

4. Material Falsity and Substantial Truth...1109

C.Analysis... 1111

1. Purpose of the Seminar... 1112

2. Comparing the Gist of the Episode and the Seminar.. .1113

a. “Scare seniors”.. .1114

i. The episode and the seminar... 1114

ii. BCA’s arguments... 1117

iii. Conclusion.. .1118

b. “Mislead seniors”... 1118

i. The episode and the seminar... 1118

1) Inflate credentials... 1118

2) Deflect annuity criticisms... 1120

3) Attorney General Swanson’s liquidity comment.. .1121

ii. BCA’s arguments... 1123

iii. Conclusion.'.. 1124

c. “Unsuitable insurance products”. . .1125

i. The episode and the seminar... 1125

ii. BCA’s arguments... 1126

1) Addressing annuity criticisms... 1126

2) Suitability references... 1128

3) Teaching to preserve assets... 1129

iii. Conclusion.. .1129

EPISODE GIST WAS NOT MATERIALLY FALSE... 1129

3. Analysis of Dateline Episode Statements ...1130

a. Statement 1... 1130

b. Statements 2 and 3... 1130

c. Statement 4... 1131

d. Statement 5... 1132

e. Statement 6... 1132

f. Statement 7... 1133

g. Statement 8... 1134

h. Statements 9 and 10... 1134

i. Statement 11... 1137

j. Statement 12.. .1138

IV. CONCLUSION... 1139

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, to recruit independent licensed insurance agents to sell insurance products, such as annuities. 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. 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 Department issued fake insurance licenses to two of Dateline’s producers, Defendants-Appellees Steven Eckert and Marie Amorebieta, 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.

2. The Dateline Episode

The Dateline episode aired in April 2008. A transcript of the episode is attached as an appendix to this opinion.

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.” 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.

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. 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 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 full context,’ ” stated Mr. Clark taught agents to be “honest, ethical, and service-oriented,” and said “it’s the ‘duty1 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 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. 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. Dist. Ct. Doc. 39; see also App. Vol. 1 at 19-66. 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. BCA alleged the “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 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 impression of the gist of Clark’s seminars (were not substantially true) he has been defamed by Dateline, otherwise he has not.” Id.

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.

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.

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 test the sufficiency of the [amended] [e]omplaint,” the court decided the motion as one to dismiss rather than one for summary judgment. Id. at 1196-97.

The district court then analyzed BCA’s defamation claim, liberally citing and bold-ing representative excerpts from the seminar recording, the Dateline episode, BCA’s amended complaint, and Brokers’ Choice 11. 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 episode’s gist: (1) Mr. Clark’s scare tactics, (2) the suitability of annuities, and (3) misleading credentials. 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 76).

The district court also listed examples of emotional appeals Mr. Clark suggested to influence potential clients, including the financial security of a client’s 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. Rased 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 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.

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 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, 116 S.Ct. 2211, 135 L.Ed.2d 659 (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, 103 S.Ct. 1382, 75 L.Ed.2d 318 (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 11546. 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 decision on the first appeal establishes the law of the case, to be followed on the second.

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

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.

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).

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... .”).

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.

First, the law of the case only “con-tinue[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 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 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 Rule 12(h)(2) may be raised on a motion under Rule 12(c) for judgment on the pleadings.... ”).

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 plaintiffs 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; Lipari v. U.S. Bancorp NA, 345 Fed.Appx. 315, 317 (10th Cir. 2009) (unpublished) (“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).”).

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 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 plaintiffs 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)).

[Conversion 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 plaintiffs 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.

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. 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) (“[Because 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, 116 S.Ct. 2211; 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 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 con-clusory 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. 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 Droppieman)). 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.”).

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, 84 S.Ct. 710, 11 L.Ed.2d 686 (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, 84 S.Ct. 710 (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).

In New York Times, the Supreme Court limited defamation liability by developing “standards that satisfy the First Amendment.” 376 U.S. at 269, 84 S.Ct. 710. 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 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, 84 S.Ct. 710.

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, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (explaining New York Times requires a public official to prove “the utterance was false”); see also Air Wisc. Airlines Corp. v. Hoeper, —U.S.-, 134 S.Ct. 852, 861, 187 L.Ed.2d 744 (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, 94 S.Ct. 2997, 41 L.Ed.2d 789 (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, 94 S.Ct. 2997. 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, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). The plaintiff “carries the burden of showing that each allegedly defamatory statement is materially false.” Yoke v. Nugent, 321 F.3d 35, 41 (1st Cir. 2003); see also Rinsley v. Brandt, 700 F.2d 1304, 1310 (10th Cir. 1983) (explaining that plaintiffs must “identify[] particular statements or passages that are false”). 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 substantial truth.” Schwartz v. Am. Coll. of Emergency Physicians, 215 F.3d 1140, 1146 (10th Cir. 2000). “[Mjinor 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, 111 S.Ct. 2419, 115 L.Ed.2d 447 (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).

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. 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 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, 111 S.Ct. 2419 (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 plaintiffs 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, 111 S.Ct. 2419; 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 nevertheless convey a substantially false and defamatory impression by omitting material facts or suggestively juxtaposing true facts”).

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, 107 S.Ct. 1294, 94 L.Ed.2d 150 (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., 188 Conn. 107, 448 A.2d 1317, 1331 (Conn. 1982).

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)). 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 pro-jeeted[.]” 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 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, all plaintiffs, public or private, must prove actual malice, see Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1108, 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).

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,

(5) Published with actual malice, and

(6) Caused actual or special damages.

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. Substantial truth, not 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, 180 Colo. 232, 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 evidence. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (explaining that a defamation plaintiffs 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, 111 S.Ct. 2419. Our de novo review of NBC’s challenge to the amended complaint compares the recording of the Annuity University seminar 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, 111 S.Ct. 2419 (“The essence of the inquiry ... remains the same whether the burden rests upon plaintiff or defendant.”). Accordingly, the law on what constitutes material falsity guides our analysis.

* ⅜ * *

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, 111 S.Ct. 2419; (2) the episode must be “likely to cause reasonable [viewers] to think ‘significantly less favorably’ about the plaintiffs] 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 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. 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