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Is Consumers Union full of hot air? Is Sharper Image just blowing smoke? It’s up to Northern District Judge Maxine Chesney to decide. On Friday, Chesney heard arguments in a motion that will determine whether a lawsuit filed by Sharper Image against the well-known consumer group will be allowed to proceed. The high-end retailer, which is based in San Francisco, is suing Consumers Union over bad reviews of one of its best-selling products, the Ionic Breeze air cleaner. Although Sharper Image calls the product “America’s most trusted brand of air purifier,” Consumers Union’s magazine, Consumer Reports, ran negative reviews in 2002 and 2003. The magazine said the Ionic Breeze, which accounts for a large share of the purifier market, did not perform well in tests to remove various air pollutants. Sharper Image argues the tests did not properly evaluate the filter’ strengths. Now the consumer group wants Chesney to toss Sharper Image v. Consumers Union, 03-4094, and has filed a motion based on California law regarding so-called strategic lawsuits against public participation. “This is the very type of case that the anti-SLAPP statute was enacted to stop,” argued Steven Williams of Burlingame, Calif.’s Cotchett, Pitre, Simon & McCarthy. “Free speech is directly threatened.” But Sharper Image says Chesney should allow the suit to go ahead because Consumers Union’s product testing is unfair. Sharper Image’s lead lawyer, E. Robert Wallach of San Francisco, also argued that the consumer group, which claims to be unbiased, actually has an economic incentive to maintain faulty testing procedures and mislead the public. The Ionic Breeze continued to sell well after the 2002 review, which Wallach said undermined Consumers Union’s credibility and made it difficult for the group to make money. “Well, when that happens, my view is they looked around and said, ‘This is not good,’” and published the second negative review, Wallach said. Williams said Wallach’s claims were “simply not true.” “Consumers Union is one independent voice in a society that is governed by corporations,” said R. David Pittle, senior vice president for technical policy at Consumers Union. If all this sounds familiar it’s because the case raises many of the same issues found in litigation between Consumers Union and Suzuki Motor Corp., which until 1995 made the Samurai sport utility vehicle. After Consumer Reports published the results of a test that showed the Samurai tipped over during certain driving conditions, the Japanese carmaker sued, alleging product disparagement. Consumers Union tried to stop that case from going to trial and prevailed in district court — a ruling that was overturned by the 9th U.S. Circuit Court of Appeals despite warnings from Judge Alex Kozinski, who penned a legendary dissent about the death of consumer ratings. Suzuki and Consumers Union announced a surprise settlement on the eve of trial last month, so the issues of free speech and consumer ratings were never fully litigated. Consumers Union has been sued at least 15 times since its founding in 1936 and has never lost, nor has it ever had to pay “any damages in the settlement of any defamation-based suit,” according to its Web site. On Friday it was tough to figure out which way Chesney might go with the anti-SLAPP. She allowed Williams and Wallach to make lengthy presentations pretty much unmolested. When they finished, she asked both a handful of questions. She made several comments, especially to Williams, about staying on point, and she specifically warned the lawyers not to try to intuit which direction she might go. She also commented about the high volume of paperwork submitted by each side, an interesting observation considering an anti-SLAPP motion is supposed to shut down a case before any real work is done. Among other pieces of evidence, both sides submitted depositions from competing experts that back up — or attack — Consumers Union’s findings. “It sometimes must appear to the court that two different cases are appearing before you,” Wallach said. Although several people in the courtroom chuckled, Chesney did not respond.

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