|NMU||NINTH CIRCUIT||Libel||Jun 27, 2002|
Court revives Suzuki’s claim against Consumer Reports
- Suzuki sued for product disparagement after Consumers Union rated the Samurai sport utility vehicle “not acceptable” for tipping during driving tests.
In a ruling that a dissenting judge warned will chill public-interest reporting, a federal appeals court on June 25 revived automaker Suzuki’s product disparagement lawsuit against the publisher of Consumer Reports magazine.
The U.S. Court of Appeals in Pasadena, Calif., (9th Cir.) ruled 2-1 that a trial judge had incorrectly dismissed the lawsuit against Consumers Union.
Consumer Reports rated the Suzuki Samurai “not acceptable” in 1988 based on the nonprofit group’s tests in which the vehicle tipped over. After the magazine referred to the negative rating in the 60th anniversary issue in 1996, Suzuki sued, claiming that the Consumer Reports tests were rigged.
Two of the three judges on the appellate panel believed the case should have gone to a jury.
“A reasonable jury could find by clear and convincing evidence that CU sought to produce a predetermined result in the Samurai test,” Judge A. Wallace Tashima wrote for the majority.
Tashima cited as evidence the fact that the Samurai was tested repeatedly before it tipped and that Consumers Union employees cheered and made statements — such as “That’s it. That looked pretty good” — when the vehicle tipped.
Suzuki claimed that when the vehicle did not tip after initial tests, Consumer Reports Editorial Director Irwin Landau told a test driver: “If you can’t find someone to roll this car, I will.”
Later, the Samurai tipped when a Consumers Union executive who was not a test driver drove it on the test course. Consumers Union then modified the test course to replicate the situation that caused the vehicle to tip when the executive drove the Samurai, the court’s ruling says. The vehicle tipped on the changed course. If Consumers Union modified the course to cause a rollover, a reasonable jury could find that the nonprofit group acted with reckless disregard for the truth, the appeals court decided.
But dissenting judge Warren J. Ferguson wrote that the decision “intrudes on the field of free expression in two of its most important contexts — consumer protection and public safety.”
The ruling will suppress speech, create less informed consumers and hinder public safety and health, Ferguson wrote.
“If taken to its logical end, the majority’s reasoning will allow any deficiency in a consumer group’s test to become the grounds for litigation,” Ferguson’s dissent says.
Ferguson also criticized the majority for failing to conduct an independent examination of the record. Instead, the majority decided to send the case to a jury without first considering the context in which the Samurai tests were made. Since consumer safety is the mission of Consumers Union, its actions and words during the Samurai testing were appropriate, Ferguson wrote.
(Suzuki Motor Corp. v. Consumers Union of United States, Inc.; Media counsel: Michael N. Pollet, Yonkers, N.Y.) — MD
© 2002 The Reporters Committee for Freedom of the Press