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Protect a Consumer Ally

August 27, 2003

When Consumers Union began publishing independent evaluations of consumer products in 1936, the world was a simpler place. Since then, drug companies have come to spend hundreds of millions of dollars plugging prescription medications on TV, consumers have to choose their own telephone providers and even public radio stations run commercials. Consumer Reports, which rejects all advertising, continues to chart its slightly stodgy but invaluable path through the commercial clutter

That's why it's so troubling that the magazine is still entangled in litigation over its 1988 judgment that the Suzuki Samurai, a sport utility vehicle, was prone to rollover in sharp turns. The lingering Suzuki lawsuit threatens not just the New York-based organization but the future of all independent product reviews. Suzuki filed the suit in 1996, one year after plummeting sales forced it to withdraw the Samurai from the market.

In 2000, U.S. District Judge Alicemarie H. Stotler threw out Suzuki's suit, ruling that the automaker had not presented convincing evidence that Consumer Reports set out to malign the Samurai. Last year, however, a three-judge U.S. 9th Circuit Court of Appeals panel overturned Stotler's decision, allowing Suzuki to proceed to trial.

Last week, Consumers Union asked the Supreme Court to reverse the 9th Circuit and dismiss the suit without a hearing. The magazine should be held accountable for its judgments, since it holds companies to a sometimes harsh standard. Stotler, however, did that in the Suzuki case three years ago. After reviewing 7,000 pages of pretrial evidence and depositions, she found nothing to substantiate Suzuki's claim that Consumers Union had it in for Suzuki and made statements about the Samurai that fit the "actual malice" standard for libel that the Supreme Court set in 1964.

The Supreme Court should grant the reversal that Consumers Union seeks. The court should also explicitly recognize that an important, underlying principle is at stake: If disgruntled corporations are able to deter media companies from publishing product reviews merely by alleging bias, the public loss will be immense. As Alex Kozinski, a dissenting judge of the full 9th Circuit, which reviewed and upheld the panel's decision, put it: "It will be impossible to issue a meaningful consumer review that a band of determined lawyers can't pick apart in front of a jury."

Product reviewers are human. A few critics even liked the movie "Gigli." But when it comes to judging product safety and effectiveness, even imperfect tests are better than no tests or, even worse, advertising disguised as consumer reporting.

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