Wednesday, February 13, 2002
Suzuki Was Defamed by Consumer Reports Piece on Samurai, Lawyer Tells Ninth Circuit Panel
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals should order a trial on Suzuki Motors’ claim that the organization that publishes Consumer Reports maliciously defamed the company by claiming that its Samurai sport utility vehicle was prone to roll over, an attorney for the company told a panel yesterday.
“Consumers Union knew from its basic test that the Samurai…didn’t roll over at all,” Robert Fiske Jr.—a former U.S. deputy attorney general now with the New York firm of Davis Polk & Wardwell—told Judges Susan Graber and A. Wallace Tashima and Senior Judge Warren Ferguson.
When its test results failed to support the “preconceived story” it planned to tell at a press conference, Fiske said, Consumers Union “told a series of lies to cover up that scheme.”
The motivation, Suzuki claims, was to aid sales of magazines and donations.
Fiske urged the court to overturn a summary judgment ruling by U.S. District Judge Alicemarie Stottler of the Central District of California, who held that there was no way Suzuki could show by clear and convincing evidence that the Consumer Reports article on the Samurai were knowingly or recklessly false.
Suzuki sued after Consumer Reports published its 60th anniversary issue in 1996, including a brief reference to its 1988 report on the Samurai. Suzuki, which manufactured the Samurai from 1985 to 1995, did not sue after the original report, Fiske explained, because its Japanese parent company thought it would be bad business to become involved in major litigation so early in the company’s U.S. presence.
The Samurai is one of four SUV’s tested for the 1988 report, Fiske said.
In order to justify its prejudgment that the Samurai was “Not Acceptable,” the attorney 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, Fiske 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.
Fiske also pointed to the fact that employees cheered when the Samurai tipped up. His claim that this proved malice was disputed by Ferguson, who said it was a natural reaction once “their fears were realized.”
Fiske responded that under the standard of review applicable to summary judgments, the court had to indulge reasonable inferences in favor of the plaintiff. Under that standard, he said, the evidence of malice was “overwhelming in our favor.”
CU’s attorney, Michael Pollet of Yonkers, N.Y., said the fact that Suzuki didn’t sue until after CU had republished its findings more than 20 times undercut the company’s claim of malice.
But Graber suggested that the supposed Landau quote, combined with the redesign of the course, might create a sufficient inference of malice to justify a trial.
Tashima appeared to disagree, however, noting that the redesigned course became CU’s permanent auto test course. Both he and Ferguson pointed to the high standard that the Ninth Circuit has set to survive a summary judgment motion in a public-figure defamation case, with Tashima noting that Suzuki had the burden of showing that malice existed in 1996, not merely at the time of the testing.
Pollet said there was never any actual malice. “We believed in the test,” he insisted.
CU’s interest, he declared, was advocating for public safety, not selling magazines. “All of this is at the center and core of the First Amendment,” he told the panel.
Suzuki’s allegations, he said, were “so implausible, so taken out of context” as not to be worthy of a trial, he added.
Copyright 2002, Metropolitan News Company