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

ORDER

The opinion and dissenting opinion, filed June 25, 2002, slip op. at 9009, 292 F.3d 1192 , are withdrawn and replaced by the amended opinion, concurring opinion, and dissenting opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petition for rehearing en banc, with Judge Ferguson recommending that the petition be granted.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing. *

The petition for rehearing en banc is denied.

dissenting from denial of rehearing en banc.

For over half a century, Consumers Union has been testing and rating consumer products and publishing the results in its magazine, Consumer Reports. A significant portion of the American public relies on CU’s ratings on a regular basis, and almost everyone consults Consumer Reports now and then before making a significant purchase — whether a sound system, a dishwasher or a car. What makes CU’s ratings particularly useful is the thorough explanation of the testing…

concurring in part:

I agree with the majority opinion’s theoretical discussion but agree only in part with its application of our standard of review.

A. Standard of Review

The majority opinion employs the proper standard of review. Although the independent examination rule applies at the summary judgment stage, it does not require us to abandon all the usual summary judgment procedures. Instead, we are required to examine independently the entire record in determining whether the non-moving party has presented evidence sufficient to allow a reasonable jury to con-elude, by clear and convincing evidence, that a public figure has proven actual malice. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Kaelin v. Globe Communications Corp., 162 F.3d 1036, 1039 (9th Cir.1998).

At the summary judgment stage, the independent examination rule does not allow us to end our analysis by noting that there is “some” or “any” evidence in the record giving rise to a genuine issue of material fact, as we would be permitted to do in a run-of-the-mill civil action. The First Amendment requires us to graft the more demanding “clear and convincing”…

dissenting:

I respectfully dissent. By failing to apply the full procedural protections afforded by the First Amendment, the majority and concurrence intrude 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 283 , 84 S.Ct. 710 . One method of protecting speech is the actual malice standard, which is set forth by the majority opinion. Majority Op. at 1133-1134; see also New York Times, 376 U.S. at 285-86 , 84 S.Ct. 710 . Another method is the independent examination rule, which requires an appellate court to independently review the whole record, “so as to assure [itself] *1142 that the judgment does not constitute a forbidden intrusion on the field of free 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…

330 F.3d 1110 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 May 19, 2003. Robert B. Fiske, Jr., Michael P. Carroll, William C. Komaroff, Davis, Polk & Wardwell, New York, NY, Gene S. Schaerr, David J. Lewis, Paul J. Zidlicky, Michael S. Lee, Sidley & Austin, Washington, DC, James Harris, Sidley & Austin, Los Angeles, CA, George F. Ball, Newport Beach, CA, for the plaintiff-appellant. Michael N. Pollet, Pollet & Felleman, Yonkers, NY, for the defendant-appellee. John H. Clarke, Washington, DC, for amicus curiae Accuracy in Media, Inc.; Kieran P. Fallon, Miami, FL, for amici curiae Bill Seidle Suzuki, Bob Lewis Suzuki, David O'Neal Suzuki, Five Star Suzuki, Jim Hudson Suzuki, and Roger Beasley Suzuki; and Richard A. Samp, Washington, DC, for amicus curiae Washington Legal Foundation, all seeking reversal. Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge,…