Organization contends lawsuit is an abuse of the courts,
Intended to chill free speech rights
Yonkers, NY—Consumers Union (CU), the independent, nonprofit publisher of Consumer Reports (CR), has filed a motion to strike Sharper Image’s product disparagement lawsuit under a California statute that protects against lawsuits designed to chill constitutional rights, particularly the right to free speech.
Sharper Image sued CU last month in California federal court over reviews of its Ionic Breeze Quadra air cleaner published in the October 2003 and February 2002 issues of Consumer Reports. The magazine said the Ionic Breeze was “ineffective” as an air cleaner and produced “almost no measurable reduction in airborne particles.”
CU filed its motion in the U.S. District Court, Northern District of California on Friday, October 31st, under the state’s Anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.
The statute, originally enacted in 1992, provides a way for a defendant served with a complaint arising out of constitutionally protected speech to move for dismissal of the lawsuit at the outset–before the personal and financial costs of litigation pile up. Under the statute, a defendant can immediately bring a “special motion to strike” to force the plaintiff to show that its claims have legal and factual merit, thus placing a heavy burden of proof on the plaintiff.
“Consumers Union believes the district court will see Sharper Image’s lawsuit for what it really is—a meritless case aimed at silencing an honest critic that has held the public’s trust for nearly 70 years. We are confident that we will prevail because our magazine’s review of the Ionic Breeze is not only protected by the First Amendment, but is fully accurate, as Sharper Image well knows,” says Michael Pollet, CU’s long-time general counsel, who argued the groundbreaking Bose V. CU freedom of speech case before the Supreme Court in 1984.
“The fact that Sharper Image’s president has publicly stated that the company has not lost any sales because of Consumers Union’s test findings, therefore incurring no harm, further demonstrates that this case was filed for cynical marketing reasons rather than a belief in its legal merits,” adds Pollet.
In an article in the Los Angeles Times published on September 28th, 2003—20 days after the Sharper Image complaint was filed—Richard Thalheimer, the founder, Chairman, and CEO of Sharper Image stated that Consumers Union’s opinions about the Ionic Breeze had not caused Sharper Image any damage.
CU’s motion filed today also states that “Because Sharper Image cannot come forward with any evidence from which a finding of malice could be made, this action must be dismissed…” The motion contends that there could be no finding of malice because CU’s findings are opinions, based upon fully disclosed truthful facts. The challenged article fully discloses Sharper Image’s criticisms of CU’s testing procedure. Further support for CU’s motion on malice comes from CU’s use of two nationally known independent experts who reviewed and validated CU’s test protocols, rejected Sharper Image’s claims, and confirmed CU’s opinions about Sharper Image’s criticism, said Joseph W. Cotchett, CU’s lead counsel on the defense.
Background on Consumers Union’s Tests of Sharper Image’s Ionic Breeze
As part of Consumers Union’s regular product testing and research program, the organization evaluates air cleaners and reports its findings to the public through its magazine, Consumer Reports (CR) and its Web site, www.ConsumerReports.org.
“Consumers Union’s air cleaner reports are examples of the high testing and publishing standards we have always adhered to; we go to great lengths to ensure the accuracy, fairness, and objectivity of our results. We accept no ads or free samples, and our sole mission is to serve the interest of consumers and help them make the most informed purchasing decisions,” says R. David Pittle, Senior Vice-President, Technical Policy at Consumers Union.
When CR tested the Sharper Image Ionic Breeze Quadra air cleaner for its February 2002 issue, it reported that the product “proved unimpressive” and that its tests “found almost no measurable reduction in airborne particles.” The company complained, maintaining that CR’s tests, based on the industry standard for measuring clean-air delivery rate (CADR) were inadequate. Sharper Image said that the Ionic Breeze technology is “vastly different” from that of other air cleaners and would fare better in a longer test.
CR’s experts re-examined their test procedures and had them reviewed by an independent expert, who confirmed the validity of CR’s methodology. This year, in addition to regular tests for air cleaner Ratings, CR then ran additional long-term tests to find out whether the Sharper Image technology is, as the company says, “so unique” that we have to “look beyond the limiting CADR test protocol” to evaluate it fairly.
In these in-depth tests, CR tested the Sharper Image Ionic Breeze and the similar Honeywell Environizer against two high-scoring air cleaners, the Friedrich electrostatic precipitator and the Whirlpool HEPA filter.
In its extended testing, CR gauged how well each air cleaner could handle the periodic introduction of small amounts of pollutant into a sealed test chamber over a 6-hour period. One set of tests used smoke, another fine dust. A second set of tests gauged how well each cleaner worked for the next 17 hours, after the last injection of pollutant. For both sets of tests, CR’s experts ran the Ionic Breeze and the Environizer on high to maximize performance; the others were on low, their quietest setting.
The Ionic Breeze and the Environizer didn’t come close to the performance of the others. CR’s experts found them quiet but ineffective and advised readers that there are much better air cleaner choices.
Consumers Union, the publisher of Consumer Reports, is an independent, nonprofit testing and information-gathering organization, serving only the consumer. We are a comprehensive source of unbiased advice about products and services, personal finance, health, nutrition, and other consumer concerns. Since 1936, our mission has been to test products, inform the public, and protect consumers.