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Sharper Image was just blowing smoke. So said U.S. District Judge Maxine Chesney on Wednesday when she tossed out a suit filed by the upscale retailer against Consumers Union over negative reviews of its best-selling product, the Ionic Breeze Quadra Air Purifier. Sharper Image, based in San Francisco, had alleged that the articles, which appeared in Consumers Union’s Consumer Reports magazine, were based on bad test procedures and amounted to negligent product disparagement. Consumers Union responded with a motion under California law prohibiting frivolous First Amendment litigation. Chesney granted the motion, commonly called an anti-SLAPP — strategic lawsuit against public participation — suit. Sharper Image had argued that the nonprofit made false statements and maliciously published its reports. Consumers Union countered that the retailer was only trying to quell the reviews in order to protect its ability to successfully market the air purifier. But Chesney didn’t even get to the issue of malice. “The court finds Sharper Image has not provided sufficient evidence to support a finding that, under any of these theories, whether alone or in combination, it has a reasonable probability of establishing that any of the challenged statements are false,” wrote Chesney. “Sharper Image is very disappointed in this result,” said E. Robert Wallach, who argued the case on behalf of the retailer. “But like Suzuki, we expect the 9th Circuit will view evidence of falsity and malice differently from the district court.” Wallach referred to Suzuki v. Consumers Union, 96-00340, a similar case in California’s Central District. Suzuki had sued in 1996 after Consumers Union published negative reviews of the now-discontinued Samurai sport utility vehicle. A U.S. district judge granted Consumers Union’s motion for summary judgment, but Suzuki prevailed in an appeal at the 9th U.S. Circuit Court of Appeals. The case then appeared headed for trial this summer, but both sides announced a last-minute settlement in which no money changed hands. Joseph Cotchett of Burlingame’s Cotchett, Pitre, Simon & McCarthy, which represents Consumers Union in both cases, had a different read on the interplay between the Suzuki and Sharper Image cases. “This is huge, huge,” he said Wednesday. Steven Williams, the attorney at Cotchett’s firm who argued the anti-SLAPP motion, said: “Hopefully, going forward, companies will think twice about filing these types of suits. It’s not in their interest to be attacking free speech.” Williams was pleased that Chesney focused on the likelihood that Sharper Image would be able to prove that the consumer reviews were false. “When you strike at the core of the First Amendment and sue someone to protect marketing, that’s not really a proper use of the courts,” Williams said. Although Williams expects the retailer to appeal, Wallach said the company has not yet made a decision. “My personal view is that the company should pursue a motion to reconsider and an appeal with the Ninth [Circuit],” Wallach said. “A decision will come shortly.” The case is Sharper Image v. Consumers Union, 03-4094.

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