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Efforts to tip over Consumer Reports ought to fail

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In April 1988, Consumers Union subjected four sport-utility vehicles to tests for safety. The independent, nonprofit corporation found one of the four "not acceptable" and published its findings in Consumer Reports. What began 15 years ago as a test of an automobile's stability is now in the Supreme Court. There the case offers a test of the stability of the First Amendment.

The underlying facts are not in dispute. Consumers Union, which tests 40 cars and other vehicles every year, decided in 1988 to test the Jeep Cherokee, the Jeep Wrangler, the Isuzu Trooper II and the Suzuki Samurai. One part of CU's standard vehicle test is a test of "emergency obstacle avoidance." In this simulated test, a driver supposedly sees a child or an animal dart into the roadway. The driver must turn sharply to the left and immediately turn back to the right.

As it turned out, the two Jeeps and the Isuzu Trooper began knocking over cones at about 40 miles per hour — but they remained stable. The Suzuki Samurai didn't do altogether badly. One test driver reported that "it rocks a bit but never felt like it would tip over." Another test driver said it "responds well, leans normally, no real problem."

But in a more demanding test, when a driver spun the steering wheel to get back into the lane, the Suzuki teetered to the left. "The two right-side tires lifted about a foot off the pavement before the driver was able to bring the vehicle back under control."

That was enough — plus some other adverse observations — to result in a judgment that the Suzuki "rolls over too easily" and was hence "not acceptable." All of the test findings and conclusions were reported in a 6,500-word article in Consumer Reports in July 1988. Nothing of legal interest happened until Consumer Reports published a 60th anniversary issue in 1996. An article on automobile testing recalled the 1988 findings and included a small photo of a teetering Suzuki Samurai.

The manufacturer sued in U.S. District Court for "product defamation." Consumers Union responded with a motion for summary judgment, contending that its criticism of the Suzuki SUV amounted to fair and responsible comment. The District Court granted CU's motion, but the 9th Circuit reversed. In an opinion by Circuit Judge A. Wallace Tashima, two members of a three-judge panel suggested there may be more to the matter than immediately meets the eye.

With Judge Susan P. Graber concurring, Judge Tashima noted some suspicious circumstances. An editor of Consumer Reports, watching the first series of clean runs in the 1988 tests, supposedly had said to an aide, "If you can't find someone to roll this car, I will." When the test vehicles passed a 60-foot reaction test, the cars were put to a tougher 50-foot test. In the manufacturer's theory, CU wanted one of them to fail. Why? Suzuki could explain: At the time the 1988 report appeared, CU was financially overextended. "It needed a blockbuster story to raise CU's profile and increase fund-raising revenues."

"This evidence," said Judge Tashima, giving a new meaning to the word "evidence," was enough to preclude summary judgment. A reasonable jury could find that CU sought to produce a predetermined result in the Samurai test. "The evidence of financial motive dovetails with the evidence of test-rigging."

Circuit Judge Warren J. Ferguson filed a passionate dissent. His two colleagues were approving "a forbidden and dangerous intrusion on the field of free speech." He moved for a rehearing before the entire 9th Circuit, sitting en banc. His motion failed, but 11 of his colleagues in May joined in a remarkable dissent from the denial. Speaking this time through Judge Alex Kozinski, they found it "incomprehensible" that CU's report of July 1988 could be deemed "malicious" defamation. The report told readers precisely how the conclusion had been reached that the Samurai "rolls over too easily."

"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. 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. The ultimate losers will be American consumers."

Did Consumer Reports, that pillar of rectitude, publish a rigged report for financial gain? I don't believe this gossamer speculation, and I don't believe a jury will swallow the allegation if the Supreme Court lets it go to trial.

University Press Syndicate. E-mail Jack Kilpatrick at: kilpatjj@aol.com