Consumers Union Faces Suzuki Trial

In a setback for Consumer Reports, the widely respected product-testing magazine, the Supreme Court cleared the way Monday for a jury in California to decide whether the publication rigged a test to show that the Suzuki Samurai tipped over easily.

Lawyers for Consumers Union, joined by many of the nation’s leading news organizations, had urged the high court to block the trial. They said the 1st Amendment’s guarantee of freedom of the press should shield the magazine from being forced to stand trial for a report critical of a product it saw as a danger.

In allowing the suit to go to trial, the U.S. 9th Circuit Court of Appeals said it was up to a jury to decide whether the magazine’s report was rigorous but fair or false and deceptive.

The Supreme Court, without dissent or comment, refused Monday to hear the appeal in Consumers Union vs. Suzuki Motor Corp. That returns the case to a federal court in Santa Ana, where the Japanese automaker -- which has its U.S. headquarters in Brea -- filed its complaint.

In its lawsuit, the automaker claimed that Consumer Reports road testers, determined to make the sport utility vehicle look bad, put the Samurai through a series of special tests in 1988 after it performed well in the standard road tests.

In its July 1988 report, Consumer Reports described the Samurai as having had an “ominous record of rollovers” in its first years on the market. The magazine said its drivers put the most recent model of the light SUV through a course of sharp turns and discovered that it tipped at moderate speeds. Though the initial findings were reported in 1988, Suzuki did not file its lawsuit for “product disparagement” until 1996, after it quit selling the Samurai.

“Suzuki is very pleased it will finally be able to present its evidence of Consumers Union’s test-rigging to a California jury,” said George G. Ball, the company’s managing counsel. “The Supreme Court’s action supports the principle that the 1st Amendment protects honest reporting, but ... not ... where there is evidence that the publisher knowingly deceived its readers.”

Jim Guest, president of Consumers Union, said the legal battle was “important not only for Consumers Union and Consumer Reports, but for every American concerned about the rights of an unbiased organization to test products independently and to speak out in the interest of safer products.”

The legal issue presented to the high court concerned judicial intervention to protect the freedom of the press. Since 1964, the court has ruled that the 1st Amendment shields the press from most lawsuits for reporting on public figures or about public concerns. The only exception is for false reports that are shown by “clear and convincing evidence” to have been published with “actual malice” or a “reckless disregard for the truth.”

Later, the high court said that judges who are reviewing a jury’s decision imposing a big-money verdict against a news organization should examine the facts to see whether there was evidence of actual malice. It was not clear whether judges should conduct this independent examination before the jury trial. In a friend-of-the-court brief, lawyers for more than a dozen news organizations, including Tribune Co., which publishes The Times, urged the high court to say that judges should skeptically review the plaintiff’s evidence before forcing Consumer Reports, a nonprofit magazine, to spend hundreds of thousands of dollars defending itself in a trial.

In a 2-1 ruling, Judge A. Wallace Tashima said that Suzuki had made a “plausible” claim that Consumer Reports had “rigged” its test. But when the whole appeals court heard the case, 11 dissenters, led by Judge Alex Kozinski, said Suzuki did not have any evidence, let alone “clear and convincing” proof, that the test drivers at Consumer Reports deliberately falsified their tests to ruin the Samurai’s reputation.

“If CU can be forced to go to trial after this thorough and candid disclosure of its methods, this is the death of consumer ratings,” Kozinski wrote. But he and the other dissenters failed to win a majority in the 24-member 9th Circuit to reverse the ruling in Suzuki’s favor.