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Like its storied namesake, the Samurai sports utility vehicle is proving to be a formidable warrior � even though Suzuki stopped making Samurais eight years ago. Suzuki is at war with Consumers Union over negative ratings for the car first published 15 years ago in its magazine Consumer Reports. Now the dispute is before the Supreme Court, with Consumers Union asking the justices to overturn a pro-Suzuki ruling in the case by the U.S. Court of Appeals for the 9th Circuit that, if upheld, could make it far easier for libel plaintiffs to bring their complaints to trial � an outcome the media are fervently trying to guard against. Consumers Union v. Suzuki Motor Corp., No. 03-281, is one of dozens of cases the Supreme Court is scheduled to consider at its private conference on Oct. 31. The Court could announce as soon as Nov. 3 whether it will grant review. A broad range of media organizations have joined to urge the high court to review the case, asserting that the 9th Circuit ruling “threatens to curtail reporting about product safety, public health, scientific debate and other issues of public importance.” A brief by the organizations was authored by David Schulz, partner at D.C.’s Levine Sullivan Koch & Schulz. In a 1988 Consumer Reports article, the mini-SUV Suzuki Samurai received a “not acceptable” rating after the vehicle tipped up on two wheels during a test drive on a Consumers Union test course. The Consumers Union brief, written by longtime in-house counsel Michael Pollet, notes that the magazine republished its rating of the Samurai 24 times between 1988 and 1995 without any complaint from Suzuki. But in an anniversary issue in 1996, the magazine highlighted the Samurai rating as a milestone in its history that caused sales of the vehicle to “dwindle away.” That proved to be the final straw, and even though the Samurai had gone out of production, Suzuki sued in California, claiming product disparagement. In extensive discovery at the district court level, Suzuki built its case on the theory that in order to boost lagging circulation, Consumers Union had rigged its road test to make the Samurai appear unsafe. Consumers Union sought to have the complaint dismissed summarily, and in May 2000, U.S. District Judge Alicemarie Stotler of the Central District of California granted Consumer Union’s motion for summary judgment, dismissing all of Suzuki’s claims. But in June 2002, a divided 9th Circuit reversed the dismissal and held that based on evidence presented by Suzuki, a “reasonable jury” could find evidence of Consumer Union’s malice � thereby necessitating a trial. The 2-1 ruling was written by Judge A. Wallace Tashima. A request by Consumers Union for en banc review was rejected over the dissent of 11 judges led by Judge Alex Kozinski. “If Suzuki can get to trial on evidence this flimsy, no consumer group in the country will be safe from assaults by hordes of handsomely paid lawyers deploying scorched-earth litigation tactics,” Kozinski wrote. In its appeal to the high court, Consumers Union argues that the 9th Circuit’s decision conflicts with numerous other appeals courts and with the Supreme Court’s own 1984 Bose Corp. v. Consumers Union decision, which calls for independent examination of the whole record � not just the plaintiff’s evidence � when libel cases are appealed. But Suzuki’s lawyer Gene Schaerr, a partner in the D.C. office of Sidley Austin Brown & Wood, argues that the 9th Circuit approach is consistent with other Supreme Court precedents that give the job of making factual determinations in libel cases to jurors, not judges. Schaerr also accuses CU of “obvious mischaracterizations” of the 9th Circuit ruling, which he says took into account evidence from both sides, not just Suzuki’s. OTHER CASES UP FOR REVIEWAetna Health Inc. v. Davila, No. 02-1845. Whether ERISA pre-empts a state claim against a health maintenance organization for negligently refusing to cover a recommended course of treatment. • Applied Companies Inc. v. Rumsfeld, No. 02-1856. Measure of damages in a breach of contract involving a federal agency. • Norton v. Southern Utah Wilderness Alliance, No. 03-101. Authority of federal courts under the Administrative Procedure Act to compel agency action to regulate use of off-road vehicles on public lands. • Shaler Area Education Association v. Emory, No. 03-182. Necessity for an independent audit of union expenditures to ensure that nonmember “fair share” fees are not used for activities other than collective bargaining. • Satava v. Lowry, No. 03-314. Whether an artist’s sculptural depiction of a jellyfish is original enough to warrant copyright protection. • Rasul v. Bush, No. 03-334. Whether federal courts have the jurisdiction to consider challenges to the confinement of aliens captured abroad and kept at Guantanamo Bay Naval Base, Cuba. � Shaina Jones “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein is a lawyer for the appellant in Consumers Union v. Suzuki Motor Corp, No. 03-281.

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