Safe Streets Alliance v Hickenlooper (Nebraska and Oklahoma Intevenors); Safe Streets alliance v Alternative Holistic Healing, LLC; Smith v Hickenlooper

Safe Streets appealed dismissal of their RICO and Controlled Substances Act claims; Smith appealed the dismissal of his controlled substances Act claims; and. Oklahoma and Nebraska sought to intervene in Safe Streets Controlled substances case. The panel, with one judge concurring, affirmed in part, reversed, and remanded in part. The majority reversed on one of Safe Street’s RICO claims as Alternative grows marijuana for sale, Alternative and others combined their resources and skills in a way that satisfies the association in fact element, Alternatives admitted the members thereof conducted the association’s affairs and safe Streets plausibly alleged a pattern of predicate acts. It held Safe Streets plausible pled damages as Colorado law recognizes a claim for nuisance based on noxious odors as pled here and this plausibly cased a decrease in value as does the open operation of a marijuana growing and dispensing operation under circuit precedent and the damages here are direct results of Alternative’s actions. The majority stated the ruling was narrow and fact dependent and disavowed any broad rule that any private citizen who dislikes marijuana companies can sue under RICO and affirmed the dismissal of all of Safe Street’s RICO claims involving emotional damages. It affirmed dismissal of Safe Street’s Controlled Substances Act claim as it pled no substantive federal right and thus cannot enforce the Act in equity or otherwise. It affirmed dismissal of Smith’s Controlled Substances Act claims for the same reasons. It vacated its order allowing Nebraska and Oklahoma to intervene on appeal as their claims are against Colorado as a sovereign state and must be filed in the United States Supreme Court. Hartz concurred in the RICO reversal calling for the abolition of proximate case analysis, concurred on the Safe Street’s Controlled Substances Act claim arguing there is no requirement for a private federal right but under the anticommandeering principle Safe Street’s request to compel Colorado to enforce the Act cannot be granted and argued Nebraska and Oklahoma’s claims fil for the same reason.

Brokers’ Choice of America, Inc. v NBC Universal, Inc. et al.

Choice appealed dismissal of its amended defamation complaint. The panel affirmed. It held that law of the case did not bar the district court form considering NBC’s motion to dismiss because the amended complaint had the transcript of the undercover recorded seminar and thus the issue of whether the complaint stated a claim was a new issue based on new evidence and any error in considering the motion as harmless as the same motion could have been field as a motion for judgment on the pleadings and the district court properly considered the motion as it did not consider evidence outside the pleadings and attachments. Noting it made no difference to the outcome whether the complaint is evaluated for material falsity or substantial truth, the panel analyzed the allegedly defamatory statements for material falsity. It held the seminar had at least one purpose of teaching agents how to sell annuities to seniors and get wealthy doing so which was consistent with the gist of the Dateline episode involved; that eh episode gist that the seminar taught agents who to scare seniors into buying unsuitable products was not materially false as the seminar teaches using emotional based problems and connect annuities to solving those problems to drive sales; the episode gist that the seminar teaches agents to mislead seniors was not materially false as the seminar did offer mechanisms to inflate their credentials, taught deflection techniques to counter annuity criticisms and gave mixed messages about how liquid annuities are thus undermining the claim that annuities are the most liquid asset a senior can have; and the gist that the annuities are unstable was not materially false as the seminar pushes selling annuities to create wealth, made cursory attempts to help agents identify whether the annuities were suitable for an individual client and minimizes disadvantages of the products. It finally analyzed 12 statements alleged by Choice to be defamatory and found that each statement either was not materially false, did not relate to Choice, actually gave the additional facts Choice said were necessary to avoid defamation or was protected opinion.