Tuesday, November 4, 2003
High Court Allows Suzuki Suit Against Consumer Reports to Proceed
From Staff and Wire Service Reports
The U.S. Supreme Court yesterday declined to review a Ninth U.S. Circuit Court of Appeals ruling that allows an automaker to sue the organization that publishes Consumer Reports magazine over an article suggesting that one of its products was unsafe.
A divided panel ruled last year that Suzuki Motor Corp. had presented enough evidence of falsity and malice to survive Consumers Union’s motion for summary judgment, contrary to Judge Alicemarie Stottler’s ruling for the U.S. District Court for the Central District of California.
The magazine gave the Suzuki Samurai negative road test ratings, and headlined its article “The Suzuki rolls over too easily.”
Consumers Union, which reports on the safety of products like child safety seats and lawn mowers, argued that a lower court ruling in its case will silence reporters who have information about dangerous products but fear costly lawsuits.
Suzuki Motor Corp. argues the magazine set out to discredit its inexpensive sport utility vehicle to make headlines and money.
Judges A. Wallace Tashima and Susan Graber formed the panel majority, while Senior Judge Warren Ferguson dissented..
The majority said the test results may have been flawed because CU was overly influenced by the opinions of the test drivers. “The issue is whether CU, armed with the knowledge that its tests were potentially flawed in this way, failed reasonably to investigate in such a manner that could lead a jury to conclude by clear and convincing evidence that CU was aware of the falsity of its Samurai report,” the court said.
The Ninth Circuit denied en banc review of the panel decision, over a spirited dissent authored by Judge Alex Kozinski and joined by 10 of his colleagues.
“If Suzuki wanted me to disregard CU’s conclusions, it should have taken the money it spent on this lawsuit and hired an independent agency to run tests showing that CU’s criticisms are unfounded,” Kozinski wrote.
The justices did not comment yesterday on their reasons for denying review. But the court rarely grants review of lower court rulings that merely allow a suit to go to trial, even where the petitioners argue that the prospect of trial alone is sufficient to chill the exercise of free speech rights.
News organizations filed amicus briefs in support of CU. They argued that they shouldn’t be dragged through expensive trials for obviously flimsy cases.
“Do I think that’s going to chill some people? Yes. It’s going to make them more cautious about what they report. For the consumer, it means less information to base your purchasing decisions on,” said Lucy Dalglish, executive director of the Reporters Committee For Freedom of the Press.
Suzuki’s managing counsel, George F. Ball, said the Supreme Court’s action “supports the principle that the First Amendment protects honest reporting, but it does not protect publishers from a jury trial where there is evidence that the publisher knowingly deceived its readers.”
News groups including The Associated Press had urged the court to review the lower court decision, arguing that the public has been protected over the years by reports on the dangers of smoking and fast food, among others.
Without court intervention, “virtually any product evaluation is at risk and this valuable journalistic genre is seriously compromised,” the groups told the court in a brief.
The Samurai was first sold in the United States in the mid-1980s but sales plunged after the 1988 magazine report and other news accounts of possible dangers. The 1995 model was its last.
Suzuki attorneys said that Consumer Reports employees designed their road tests to get the Samurai to tip and then used its reports to make money in fund raising and subscription drives. Suzuki did not sue after the original report, but it did claim “product disparagement” in a 1996 lawsuit in California.
In order to justify its prejudgment that the Samurai was “Not Acceptable,” Suzuki said, CU’s test drivers drove the Samurai at a faster rate of speed than the other three vehicles. After the Samurai drove perfectly 37 times, he said, CU altered the test course and tried again, with the driver this time using a “violent maneuver” in order to cause the vehicle to tip up.
In arguing that CU acted with malice, Suzuki attorneys pointed to testimony by an employee who quoted Irwin Landau, an editorial employee at the magazine, as saying “If you cannot find someone to make this car roll over, I will.” CU claims that if Landau made any such statement, he did it as a joke.
Jim Guest, president of Consumers Union, said yesterday the magazine continues to stand by its reporting.
The case is Consumers Union v. Suzuki Motor Corp., 03-281.
Copyright 2003, Metropolitan News Company