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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” swap parts and advice about the sport utility vehicle on the Internet. Some of them have urged Suzuki to reincarnate the Samurai, with some modifications. But not everyone loved the Samurai after its American introduction in 1985. Newspapers voiced concerns about its stability at highway speeds and on curves. NBC did a three-part series on the SUV that included videotape of the Samurai “tipping up” during certain maneuvers. Most devastating was criticism in the July 1988 issue of Consumers Report. 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, the magazine’s publisher. A year later, sales of the vehicle had reportedly plunged 73 percent. Suzuki Motor Corporation challenged the test results and threatened to sue. But it took no legal action until 1996, when Consumer Reports published a sixtieth anniversary issue with a time line of important events � including a photo of the Samurai tilted on two wheels. The caption said that Consumers Union tests showed that the Samurai “easily rolls over in turns and is rated not acceptable,” and that sales “dwindle[d] away.” “By 1996 it was clear [that Consumer Union's] testing had been discredited,” says George Ball of Newport Beach, California, managing counsel to American Suzuki Motor Corporation. “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 panel of the U.S. Court of Appeals for the Ninth Circuit. Now it has petitioned the Supreme Court for review. The issue raised is procedural but critical to whether juries will hear similar 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,” says 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 action “a lawsuit to punish and shoot the messenger.” He says the issue raised in the high court petition ultimately asks whether First Amendment protections for publishers have any meaning. “Under the standard used by the Ninth Circuit, it is literally impossible to avoid a trial in a meritless case,” he says. A subset of defamation, product disparagement occurs when false or deceptive factual claims are made about a product or service. 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. Publishing For Profits The district court 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 mind-set” for a publisher, particularly one that defines its mission as consumer protection. Trying to increase profits by publishing certain material, said the judge, is not sufficient grounds to prove actual malice. On appeal, the Ninth Circuit panel, splitting 2 to 1, agreed with the automaker. It held that Suzuki presented sufficient evidence for a reasonable jury to believe that CU “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 to 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, CU’s counsel for 30 years, speculated the suit was triggered by suits from plaintiffs whose lawyers relied on the magazine article. “The Samurai did have rollover lawsuits, and they principally sprang from Consumers Union’s charges,” says Suzuki’s Ball. “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 notes 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 United States because of rollover concerns.
A version of this story first appeared in The National Law Journal, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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