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WASHINGTON — Eight years after U.S. sales of the funky-looking Suzuki Samurai ended, a court fight over its reputation still rages in a defamation lawsuit that has now reached the U.S. Supreme Court. Loyal owners of the “little mud bug” and the “soul food in car form” swap parts and advice about the sport utility vehicle on the Internet. Some of them urge Suzuki to reincarnate the Samurai, with some modifications. Not everyone loved the Samurai after its successful introduction in this country in 1985. Newspapers and a TV network voiced concerns about its stability at highway speeds and in curves. NBC’s three-part series included videotape of the Samurai “tipping up” during certain maneuvers. Most devastating was criticism in the July 1988 Consumer Reports. It shook the Samurai’s future. The magazine rated the Samurai “not acceptable” because of its propensity to roll over during testing on an accident-avoidance course maintained by Consumers Union, which publishes the magazine. Sales of the vehicle a year later reportedly plunged 73 percent. Suzuki Motor Corp. challenged the test results and threatened to sue. It took no legal action until 1996, when Consumer Reports published a 60th anniversary issue including a timeline of important events at the magazine. A photo showed the Samurai tilted on two wheels. A caption said Consumers Union tests had shown that the Samurai “easily rolls over in turns and is rated Not Acceptable,” and that sales were “dwindl[ing] away.” “By 1996, it was clear their testing had been discredited,” said George Ball of Newport Beach, managing counsel to American Suzuki Motor Corp. “When it became an item that they were celebrating and bragging they had destroyed sales, Suzuki had enough.” Suzuki filed a “product disparagement” suit in April 1996. CU won summary judgment in a federal district court, only to have it reversed by a split three-judge panel of the Ninth Circuit U.S. Court of Appeals. Now it has petitioned the Supreme Court for review. The issue raised is procedural but critical to whether juries will hear these cases: What is the standard of appellate review of a judge’s summary judgment decision in a libel case? “At bottom, Consumers Union doesn’t want this case to go to trial,” said Ball. He charges that CU rigged the Samurai tests and lied about it because it needed a blockbuster story to generate revenue during a difficult financial period. Consumers Union counsel Michael Pollet calls Suzuki’s suit “a lawsuit to punish and shoot the messenger.” He said the issue raised in the high court petition ultimately asks whether First Amendment protections for publishers of all kinds have any meaning. “Under the standard used by the Ninth Circuit, it is literally impossible to avoid a trial in a meritless case,” he said. Product disparagement is a subset of defamation. It occurs when false or deceptive factual claims are made about a product or services. To survive the summary judgment motion, Suzuki had to provide sufficient evidence that the nonprofit publisher acted with actual malice in its 1988 reporting on the Samurai. Suzuki made the following claims: After 37 runs on the Consumers Union test track, the Samurai did not tip, and test drivers rated it the highest of the vehicles being tested with it. After the standard testing, CU’s editor in chief was heard to say, “If you can’t find someone to roll this car, I will.” The Consumers Union technical director then drove the car, and after nine runs and after a departure from the standard maneuvers, the Samurai tipped up. Consumers Union then devised a modified test track to try to replicate the director’s maneuver, and the Samurai tipped up again. Employees were heard cheering after the tip up on test track videos and audio tapes. Consumers Union refused to consider the validity of its testing despite the National Highway Transportation and Safety Administration’s conclusion that the magazine’s test procedures lacked a scientific basis. The publisher was financially overextended in 1988 because it was buying a new building. SUZUKI LOSES The district judge, after reviewing more than 50 depositions and a record of roughly 7,000 pages, disagreed with the car company. She said that the magazine’s pretesting concern about the Samurai’s safety, based on background information already known about the vehicle, was not an “impermissible mindset” for a publisher, particularly one who says its mission is consumer protection. The redesigned test track, she said, was used to put the vehicle through more rigorous tests after the tip-up problem emerged. The Supreme Court, she said, has ruled that the goal of increasing one’s profits through publishing material is not sufficient to prove actual malice. On appeal, a Ninth Circuit panel, splitting 2-1, agreed with the automaker. It held Suzuki presented sufficient evidence for a reasonable jury to believe that Consumers Union “rigged a test to achieve a predetermined result in order to serve its own pecuniary interests.” The publisher sought review by the full Ninth Circuit, but that was denied, 13-11, with a stinging dissent by Judge Alex Kozinski. He wrote, “If Suzuki can get to trial on evidence this flimsy, no consumer group in the country will be safe from assault by hordes of handsomely paid lawyers deploying scorched-earth litigation tactics.” Pollet, Consumer Union’s counsel for 30 years, said it has never lost or settled a libel suit. Suzuki’s suit, he said, makes no sense to him as a lawyer. “We were not the first to criticize the Samurai,” he said. “ The Washington Post did in much stronger terms. Suzuki was no longer selling the car here when they sued.” He speculated the suit was triggered by suits in which plaintiffs’ lawyers relied on the magazine article. Suzuki’s Ball said, “The Samurai did have rollover lawsuits, and they principally sprang from Consumers Union’s charges. “Look at the number of lawsuits before June 1988 and after. Prior to June 1988, this vehicle had been on the market for almost three years and had seven rollover lawsuits with almost 150,000 vehicles in production. Within two years of June 1988, it had over 60 rollover lawsuits.” Pollet noted that a federal judge in a Georgia suit in 1992 issued sanctions against Suzuki for “obfuscating the truth” after finding it knew the Samurai was dangerous and that General Motors had refused to distribute the car in the U.S. because of rollover concerns. In the high court, Pollet, calling Suzuki’s conspiracy theory a “fantasy,” argues that the Ninth Circuit erroneously applied the ordinary standard for reviewing summary judgment decisions by examining only whether Suzuki had presented adequate evidence that could lead a jury to conclude that Consumers Union acted with actual malice. Echoing the panel and the Kozinski dissent, Pollet contends that the Supreme Court has said — primarily in Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) — that appellate judges must independently examine the whole record in libel cases because of important First Amendment interests. “The Ninth Circuit says you allow somebody effectively with little or no evidence, or gross speculation, as in this case, to get to trial in the face of an overwhelming record of care and concern,” he said. “Anybody can pick up isolated items in a complicated, complex project and give them a sinister spin.” As a practical matter, the real infringement of First Amendment rights in public-figure libel cases during the past 30 years has come from the enormous penalty imposed on the media in defending these cases through trial, said media law expert Lee Levine of Washington, D.C.’s Levine Sullivan Kich & Schultz. The media win an overwhelmingly majority of those cases, said Levine. “But that’s small comfort to the publisher or broadcaster that has had to spend millions of dollars defending itself.” (Pollet said Consumers Union has spent $4 million just getting to summary judgment.) Levine will file an amicus brief supporting the magazine on behalf of most major media companies. He said Bose and Andrews v. Liberty Lobby, 477 U.S. 242 (1986), make clear that “the same sort of independent review a judge is obligated to take on appeal is to be done on summary judgment as well.” He says a court can’t infer actual malice from a publisher’s disagreement with a government agency or its financial status. MONEY AND EXPERTS “If the Ninth Circuit is right, then all somebody in the position of Suzuki has to come up with is some evidence of financial motive, which always will be there, and some expert with credentials to say, ‘You’re all wet,’ and, voila, you have enough evidence of actual malice to get to a jury,” Levine added. Consumers Union’s Pollet said, “The problem is well-financed, corporate interests with inappropriate cases and inappropriate motives can crush and put out of business their critics. This is not only product and service critics but critics of any kind, from the war in Iraq to the recall election in California to the safety of automobiles.” He said the Ninth Circuit is in conflict with the Second, Eighth and D.C. Circuits, which apply independent review of summary judgment decisions. Suzuki’s Ball countered, “We don’t believe there is a circuit conflict. We don’t believe there is an open question.” Courts generally are not receptive to product-disparagement claims, said Richard Samp of the Washington Legal Foundation, which unsuccessfully took a suit over a “60 Minutes” report on chemical treatment of apples to the Supreme Court. State laws permitting this cause of action, he added, are often mocked by the press, which asks how it’s possible to harm the reputation of an inanimate object. “Where there is evidence Consumer Reports said things it knew to be false and did so solely to sell magazines, a jury ought to decide whether the claims are fruitful,” said Samp, who filed an amicus brief supporting Suzuki in the Ninth Circuit. “If there isn’t such evidence, I assume Consumer Reports would win at trial,” he said. Marcia Coyle is a staff reporter for The National Law Journal , a Recorder affiliate based in New York City.

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