Suzuki Motor Corporation and American Suzuki Motor Corporation v. Consumers Union of United States, Inc., a Non-Profit New York Corporation

292 F.3d 1192 SUZUKI MOTOR CORPORATION and American Suzuki Motor Corporation, Plaintiff-Appellant, v. CONSUMERS UNION OF UNITED STATES, INC., a non-profit New York Corporation, Defendant-Appellee. No. 00-56043. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 12, 2002. Filed June 25, 2002. Robert B. Fiske, Jr., Michael P. Carroll, William C. Komaroff, Davis Polk & Wardwell, New York, NY; George F. Ball, Law Offices of George F. Ball, P.C., Newport Beach, CA; Gene C. Schaerr, David J. Lewis, Paul J. Zidlicky, Michael S. Lee, Sidley Austin Brown & Wood, Washington, DC; James Harris, Sidley Austin Brown & Wood, Los Angeles, CA, for the plaintiff-appellant. Barry G. West, Corey E. Klein, Sylvia M. Virsik, Gaims, Weil, West & Epstein, LLP, Los Angeles, CA, Joseph W. Cotchett, Frank Pitre, Cotchett, Pitre & Simon, Burlingame, CA, Michael N. Pollet, Pollet & Felleman, LLP, Yonkers, NY, for the defendant-appellee. John A. Clarke, Washington, D.C., for amicus curiae Accuracy in Media, Inc.; Kieran P. Fallon, Miami, Florida, for amici curiae Bill Seidle Suzuki, Bob Lewis Suzuki, David O'Neal Suzuki, Five Star Suzuki, Jim Hudson Suzuki, and…

Opinion by Judge TASHIMA; Dissent by Judge FERGUSON.

In 1988, Appellee Consumers Union of United States, Inc. (CU), published a story in its magazine Consumer Reports, in which it rated the Suzuki Samurai “Not Acceptable” based on its propensity to roll over during accident avoidance tests. Since that time, CU has publicly referred to the negative Samurai rating in various fora, most prominently in the 60th Anniversary issue of Consumer Reports, published in 1996. Appellant Suzuki- Motor Corporation (Suzuki), the manufacturer of the Samurai, has challenged the validity of CU’s Samurai test and, on the heels of the 60th Anniversary issue, brought this action against CU alleging product disparagement. CU’s motion for summary judgment was granted by the district court, which held that a reasonable jury could not conclude by clear and convincing evidence that CU had acted with actual malice. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse and remand for further proceedings.

I. BACKGROUND

CU is a nonprofit corporation that engages in comparative testing and evaluation of consumer products and services, the results of which are published in the magazine Consumer Reports.…

dissenting:

I respectfully dissent. By failing to apply the full procedural protections afforded by the First Amendment, the majority intrudes on the field of free expression in two of its most important contexts — consumer protection and public safety.

In New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the Supreme Court held that specific constitutional protections of speech limit the state’s power to award damages in libel actions brought by public officials. Id. at 288 , 84 S.Ct. 710 . One means of protecting speech is the actual malice standard, which is set forth by the majority in our case. Majority Op. at 1202; see also New York Times, 376 U.S. at 285-86 , 84 S.Ct. 710 . Another means is the independent examination rule, which requires an appellate court to independently review the whole record, “so as to assure [itself] that the judgment does not constitute a forbidden intrusion on the field of expression.” New York Times, 376 U.S. at 285 , 84 S.Ct. 710 (citation omitted). In adopting the actual malice standard and independent examination rule, the Supreme Court noted the importance of protecting “the principle that debate on public…