Suzuki Versus Consumers Union

You might not even remember the Suzuki Samurai, a little sport utility vehicle that gained incredible popularity in the mid-'80s only to see its popularity vanish in 1988 with the flash of a short piece of b-roll footage. That video portrayed a Samurai on the verge of roll-over during a Consumer Reports test, and the Consumer Reports magazine piece that prompted and accompanied it, found that the vehicle was "Not Acceptable" because, it was "likely to roll over during a maneuver that could be demanded of any car at any time." The resulting uproar caused sales of the Samurai to plummet and finally forced the vehicle off the market all together.

Suzuki did not take the Consumer Reports review of its popular vehicle lightly. In fact, it sued Consumers Union for "product disparagement," and it claimed that CU had rigged the Samurai test because the non-profit organization wanted to raises revenues and decided that a high-profile news story at the expense of a relatively small manufacturer was the way to do it. Now, finally, after some 15 years, the case might finally go to a jury trial, but only because, by a narrow margin, the U.S. Court of Appeals in California reaffirmed its earlier ruling in favor of Suzuki, rejecting a request by CU for rehearing of the court's June 25, 2002, ruling in Suzuki's favor. In making its most recent decision, the Court of Appeals held that Suzuki had presented enough evidence to warrant a jury trial on its charges that CU published knowing falsehoods when it claimed that CU's tests had shown the Suzuki Samurai "easily rolls over in turns" and was therefore "Not Acceptable."

Suzuki was triumphant upon hearing the ruling, because the company seems confident that it will prevail in a jury trial on the issue. A deciding factor might be whether or not Consumer Reports testers treated the Samurai differently than other similar vehicles. Suzuki says it has already obtained and developed a great deal of evidence that CU did just that.

"The evidence will clearly show that, rather than driving all the vehicles the same, CU singled out the Suzuki Samurai and, through stunt-like steering, intentionally made it tip up -- all to support CU's pre-determined story line," said Suzuki's managing counsel, George Ball.

He asserted that CU did this "only after the Samurai received the best possible rating on the test CU had used for the past 15 years."

Why would Consumers Reports rig the test? Some cite cold hard cash as the reason, noting that at the time CU initially criticized the Samurai, CU had just purchased a new building and therefore "needed to boost its revenues to complete its capital campaign." The court concluded that this "evidence of financial motive dovetails with the evidence of test-rigging." Based on this and other evidence, the Court of Appeals sent the case back to the U.S. District Court in Santa Ana, California, for a jury trial.

While Suzuki officials were jubilant at the opportunity to present their case to a jury, Consumers Union officials were, at best, wary. Further, in a statement to the press they attempted to turn the controversy into a First Amendment issue. They asserted they should have been granted summary judgment, and that there is no evidence of malice in this case that would warrant a trial before a jury.

How does the First Amendment, which guarantees freedom of speech and freedom of the press, figure in? It its release CU stated, "We believe the evidence demonstrates that our tests were conducted conscientiously, impartially, and fairly, and published our results in the spirit of the free press and free speech values of the U.S. and state constitutions."

Some might conclude that CU is trying to hide behind the First Amendment, claiming, at least indirectly, that even if the organization's tests were biased and offered findings that were at odds with the findings of other tests, including those of the Federal government's own National Highway Traffic Safety Administration, they should be protected from a product disparagement claim because the organization is part of the press.

"This legal battle is important," said CU President Jim Guest, "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 First Amendment guarantees the right to report our independent findings, even when our judgment differs from that of the government or the company in question. The record of our testing of and publication about the Samurai demonstrates our high testing standards and the consistent concern in Consumer Reports for accuracy, fairness, and impartiality. Our product ratings are based on our test and survey results, and we make our judgments solely for the benefit of consumers."

If that is the case, why does Consumers Union fear a jury, which will be made up of those aforementioned consumers?