Sharper Image Corporation v. Consumers Union of United States

United States District Court For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Before the Court is Consumers Union of United States, Inc.’s (“Consumers Union”) “Special Motion to Strike Amended Complaint Pursuant to California Code of Civil Procedure Section 426.16.”

On January 23, 2004, Consumers Union filed the instant motion, to which plaintiff Sharper Image Corporation (“Sharper Image”) responded by filing substantive opposition, as well as a request for a continuance to allow Sharper Image to engage in further discovery. By order filed February 23, 2004, the Court denied the motion in part, and made the following findings: (1) Consumers Union met its burden to show that Sharper Image’s claims against Consumers Union arise from acts in furtherance of free speech in connection with a public issue and, accordingly, under § 425.16(b), Sharper Image must show a “reasonable probability” it will prevail on its claims; (2) Sharper Image, in the Amended Complaint (“AC”), sufficiently pleaded that it has incurred pecuniary loss, and demonstrated a reasonable probability of establishing that it, in fact, has incurred such loss; (3) Consumers Union’s statements do not constitute nonactionable subjective comment; and (4) with respect to the elements of falsity and malice, Sharper Image demonstrated the propriety of Sharper Image’s conducting further discovery. ( See Order Denying in Part and Continuing in Part Def.’s Mot. to Strike, filed February 23, 2004, at 1:24-2:19.) Accordingly, the Court denied Consumers Union’s motion to the extent it was based on grounds other than lack of falsity and malice, and, with respect to those two elements, continued the hearing on the motion and set a further briefing schedule.

On May 21, 2004, Sharper Image, in conformity with the Court’s order of February 23, 2004, filed a “Renewed Opposition” to Consumers Union’s motion, to which Consumers Union responded by filing, on June 4, 2004, a “Closing Memorandum.” Thereafter, on June 14, 2004, Sharper Image filed a “Sur-Reply,” to which Consumers Union responded by filing, on July 2, 2004, a “Response to Sur-Reply.”

The matter came on regularly for hearing on July 30, 2004. e. robert wallach of the Law Offices of e. robert wallach, P.C., and Alan L. Barry of Bell, Boyd & Lloyd LLC appeared on behalf of Sharper Image. Steven N. Williams of Cotchett, Pitre, Simon & McCarthy appeared on behalf of Consumers Union. Having considered the papers submitted in support and in opposition to the motion, and the arguments of counsel, the Court rules as follows. // //

Sharper Image alleges that it is “a nationally and internationally renowned specialty retailer of innovative and high quality consumer products,” and that “its leading proprietary product” is the “Ionic Breeze Quadra Air Purifier” (“IBQ”). ( See AC¶ 1.) The IBQ, according to Sharper Image, is a “fanless, low-velocity, energy-saving, electrostatic room air purifier designed to clean the air continuously over a long period of time.” ( See AC¶ 5.)

Sharper Image alleges that Consumers Union, which publishes Consumer Reports magazine, made false statements concerning the IBQ in the February 2002 and October 2003 issues of Consumer Reports, ( See AC¶¶ 3-4, 6-7), and that Consumers Union “knew its statements were false and misleading, or it acted with a reckless disregard for whether its statements in its reports were true or false,” ( See AC¶ 55). According to Sharper Image, although Consumers Union knew the “IBQ’s electrostatic technology does not rely upon a mechanical fan to effectively move air,” Consumers Union used test criteria that were “inaccurate, unreliable, misleading, and entirely dependent on the existence of a mechanical fan.” ( See AC¶ 8.) Moreover, Sharper Image alleges, Consumers Union “failed to conduct [the test employed] properly.” ( See AC¶¶ 23-24.) As a result of the allegedly “false and disparaging statements,” Sharper Image claims it “lost. . . product sales it would have made,” ( See AC¶ 11), and “experienced an overall increase in customer returns of Ionic Breeze products,” ( See AC¶ 12).

Based on these allegations, Sharper Image asserts four causes of action, all arising under California law: (1) Product Disparagement; (2) Unfair Competition under § 17200 of the California Business & Professions Code; (3) Tortious Interference with Prospective Economic Advantage; and (4) Negligence.

Under California law, “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” See Cal. Code Civ. Proc. § 425.16(b)(1).

“Once it is determined that an act in furtherance of protected expression is being challenged, the plaintiff must show a reasonable probability of prevailing in its claims for those claims to survive dismissal.” Metabolife Int’l, Inc. v. Wornick, 264 F. 3d 832, 840 (9th Cir. 2001) (internal quotation and citations omitted). “To do this, the plaintiff must demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Id. (internal quotation and citation omitted). “This burden is much like that used in determining a motion for nonsuit or directed verdict, which mandates dismissal when no reasonable jury could find for the plaintiff.” Id. (internal quotation and citation omitted). The court “accepts as true all evidence favorable to the plaintiff.” See Consumer Justice Center v. Trimedica Int’l, Inc., 107 Cal. App. 4th 595, 605 (2003). If the defendant offers “opposing affidavits, the court cannot weigh them against the plaintiff’s affidavits, but must only decide whether the defendant’s affidavits, as a matter of law, defeat the plaintiff’s supporting evidence.” See Paul for Council v. Hanyecz , 85 Cal. App. 4th 1356, 1365 (2001) (emphasis in original), disapproved on other grounds, Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 68 n.5 (2002). “Thus, a defendant’s anti-SLAPP motion should be granted when a plaintiff presents an insufficient legal basis for the claims or when no evidence of sufficient substantiality exists to support a judgment for the plaintiff.” Metabolife Int’l ., 264 F. 3d at 840 (internal quotation and citation omitted).

“The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-04 (1984). The First Amendment also “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” See< New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (internal quotation and citation omitted). As the Supreme Court has noted, “debate on public issues should be uninhibited, robust, and wide-open, and [ ] it may well include vehement, caustic, and sometimes unpleasantly sharp attacks. . . .” See id. Indeed, the Supreme Court has recognized that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the breathing space that they need to survive.” See id. (internal quotation and alteration omitted). As the Supreme Court has further observed, “[w]hatever is added to the field of libel is taken from the field of free debate.” See id. at 722 (internal quotation and citation omitted). Accordingly, “significant constitutional protections [are] warranted in this area.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 15 (1990).

Among the constitutional protections available in an action challenging speech is a requirement that a plaintiff who challenges a statement on a matter of “public concern” bear the burden of proving the statement is false. See id. at 16 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986)). Consumer reporting, the subject of the instant action, implicates matters of public concern. “[T]he public has a well-recognized interest in knowing about the quality and contents of consumer goods.” Melaleuca, Inc. v. Clark, 66 Cal. App. 4th 1344, 1363 (1998). Additionally, as the Ninth Circuit has noted, “protection of statements about product effectiveness will ensure that debate on public issues will be ‘uninhibited, robust and wide-open.’” See Unelko Corp. v. Rooney, 912 F. 2d 1049, 1056 (9th Cir. 1990) (quoting New York Times v. Sullivan , 376 U.S. at 270). As the Third Circuit has explained:
 * Consumer reporting enables citizens to make better informed purchasing decisions. Regardless whether particular statements made by consumer reporters are precisely accurate, it is necessary to insulate them from the vicissitudes of ordinary civil litigation in order to foster the First Amendment goals mentioned above. As the Supreme Court recognized in New York Times, “would-be critics . . . may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” To the extent this occurs, consumers would be less informed, less able to make effective use of their purchasing power, and generally less satisfied in their choice of goods.

See Steaks Unlimited, Inc. v. Deaner, 623 F. 2d 264, 280 (3rd Cir. 1980) (alteration in original; quoting New York Times Co. v. Sullivan , 376 U.S. at 279).)

Moreover, “[t]hose who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures . . . may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth,” See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974), i.e., with “actual malice,” See New York Times Co. v. Sullivan, 376 U.S. at 279-80.

With these principles in mind, the Court turns to the issues of whether Sharper Image, which is a public figure and which challenges statements made on issues of public concern, has demonstrated it has a reasonable probability of proving any of the challenged statements are false and, if so, whether Consumers Union made such statements with knowledge of the falsity thereof or with reckless disregard for the truth.

A. Allegedly False Statements at Issue
Consumers Union describes itself as a “non-profit, independent organization providing consumers with information on goods, services, health, and personal finance,” ( See Heim Decl., filed January 23, 2004, Ex. A at 4), and which has “performed product testing and reported the results of its testing since 1936,” ( See id.  3). The statements Sharper Image challenges arise from Consumers Union’s reporting the results of its testing of certain portable air cleaners, including the IBQ.

1. February 2002 Issue of Consumer Reports
The February 2002 issue of Consumer Reports contains a two-page article titled “Portable room air cleaners,” in which Consumers Union includes its “overall ratings, in performance order,” of 16 models of air cleaners, including the IBQ. ( See Heim Decl., filed January 23, 2004, Ex. A at 46-47.) In the article, Consumers Union states that it “focused on models with moderate-to-high ‘clean air delivery rates,’ the industry yardstick that gauges how quickly an air cleaner reduces pollutants such as dust and tobacco-smoke particles,” and that it “tested how well each air cleaner cleared measured amounts of fine road dust and even finer cigarette-smoke particles from the air in [Consumers Union’s] sealed 200-square-foot test room.” ( See id. Ex. A at 46.) The second page of the article includes a graph depicting Consumers Union’s ratings for the 16 tested models. ( See id. Ex. A at 47.) The IBQ was rated last of the 16 tested models and received from Consumers Union an “overall score” of “P,” or “poor.” ( See id. ) The graph indicates that Consumers Union gave the IBQ a rating of “excellent” for the categories “noise” at “high speed” and “noise” at “low speed,” a rating of “good” for the category “ease of use,” and a rating of “poor” for the categories “dust” at “high speed,” “dust” at “low speed,” “smoke” at “high speed,” and “smoke” at “low speed.” ( See id. ) The graph also includes figures for the “annual cost” of running each model and discloses that the IBQ has, at $4, the lowest annual “energy” cost and, at $0, the lowest annual “filter” cost. ( See id. )

In the AC, Sharper Image alleges that certain statements in the February 2002 article are false. Those statements, as alleged by Sharper Image, are: (1) “Sharper Image SI1637 Ionic Breeze IBQ Silent Air Purifier ($350) worked barely at all, producing almost no measurable reduction in airborne particles.”; (2) “The other electronic-precipitator model Sharper Image SI637 Ionic Breeze IBQ Silent Air Purifier, proved unimpressive in our tests.”; (3) “In comparing the IBQ (which does not use a fan) to the Friedrich air cleaner (which does use a fan), Consumers Union stated, ‘both use similar technology.’”; (4) “In a further comparison of the IBQ to the Friedrich air cleaner, Consumers Union stated ‘One Works, One Doesn’t.’”; and (5) “. . . the Sharper Image [unit] removed very few particles” (alteration in AC). ( See AC¶ 51.)

2. October 2003 Issue of Consumer Reports
The October 2003 issue of Consumer Reports contains a four-page article titled “Air Cleaners” and subtitled “Behind the hype,” which includes Consumers Union’s ratings for 18 models of room air cleaners, including the IBQ. ( See Heim Decl., filed January 23, 2004, Ex. B at 26-29.) One page of the article, a “closeup” titled “In-Depth Tests: Sharper Image Ionic Breeze, Honeywell Environizer,” states that Sharper Image had “complained” to Consumers Union about the test Consumers Union employed when it published its February 2002 article, and that Consumers Union, having had its “test procedures” reviewed by an “independent expert,” “continue[s] to stand behind [the February 2002] report.” ( See id. Ex. B at 27.) The “closeup” portion of the article further states that, in response to Sharper Image’s claim that the IBQ would “fare better in a longer test,” Consumers Union ran its “regular tests” on the IBQ, as well as “additional long-term tests.” ( See id. ) The last page of the article includes a graph depicting Consumers Union’s overall ratings for the 18 tested models. ( See id. Ex. B at 29.) Of the 18 models tested, Consumers Union ranked the IBQ next to last and, again, gave the IBQ an “overall score” of “P,” or “poor.” ( See id. ) Consumers Union gave the IBQ the same ratings as it had in the February 2002 article, specifically, ratings of “excellent” in the two “noise” categories, a rating of “good” in the “ease of use” category, and ratings of “poor” in the two “dust” categories and the two “smoke” categories, ( See id. ), and also again showed that the IBQ had the lowest annual “energy” cost and no annual “filter” cost. ( See id. )

In the AC, Sharper Image alleges that certain statements in the October 2003 article are false. Those statements, as alleged by Sharper Image, are: (1) “Our tests show [the IBQ is] not effective.” (alteration in AC); (2) “In evaluating Sharper Image’s independent testing of the IBQ’s effectiveness, Consumers Union states ‘some of those studies were irrelevant to the question of whether the Ionic Breeze was an effective air cleaner. . . . Other studies used questionable methodology or showed merely that the Sharper Image had little air-cleaning capability.’”; (3) “Ionic Breeze. . . didn’t come close to the performance of the [other tested products]. . . . The Ionic Breeze had [a] very slow rate[ ] of cleaning, which did not improve over time.” (alterations in AC); and (4) “The Ionic Breeze. . . [is] quiet but ineffective” (alteration in AC). ( See AC¶ 54.)

Additionally, Sharper Image alleges Consumers Union made a false statement when, in describing the tests on which the results in its February 2002 article had been based, Consumers Union stated its tests were “based on the industry standard for measuring cleanair delivery rate (CADR).” ( See AC Ex. B, 6th page.)

3. Republications
Sharper Image alleges that Consumers Union, in addition to making statements about the effectiveness of the IBQ in the two articles referenced above, made false statements that were published by third parties. Specifically, in its AC, Sharper Image alleges as follows: (1) “In or around May 2002, a representative of Consumers Union published, communicated, or caused to be published, media reports stating in part, ‘The Ionic Breeze in our measurements performed poorly, it was unable to remove measurable amounts of particles from the room air.’”; (2) “On or around May 14, 2002, WNBC in New York broadcast and published Consumers Union’s report and thereafter published its broadcast at www.wnbc.com. WNBC’s broadcast quoted a representative of Consumers Union stating, ‘The Ionic Breeze in our measurements performed poorly, it was unable to remove measurable amounts of particles from the room air.’”; (3) “WRAL in North Carolina at www.wral.com, continues to publish an article entitled ‘Consumer Reports Shows Which Portable Cleaners Are Best At Clearing The Air - Friedrich Cleaner Earns High Marks.’”; and (4) “KCCI in Iowa at www.theiowachannel.com published an article entitled ‘Air Purification Systems Put To The Test,’ wherein a representative of Consumers Union commented, ‘The Ionic Breeze, when we turned it on, it removed very few particles.’” ( See AC¶¶ 52, 53.)

B. Falsity
Sharper Image argues it can demonstrate that Consumers Union’s statements are false, and advances several theories in support of this assertion. First, Sharper Image contends that the testing protocol employed by Consumers Union was “inapplicable” to Sharper Image’s product, the IBQ. ( See Pl.’s Renewed Opp., filed May 21, 2004, at 9:15-16.) Second, Sharper Image contends that even if the protocol employed is applicable to the IBQ, “the protocol was incorrectly applied.” ( See id. at 9:16-17.) Third, Sharper Image contends that Consumers Union’s own test results “demonstrate that the IBQ was highly effective in removing airborne particles.” ( See id. at 10:28-11:1.) Finally, Sharper Image argues that the results of Sharper Image’s “internal” tests and “independent” tests show that the IBQ is an “effective air cleaner.” ( See id. at 12: 25-28.)

For the reasons discussed below, the Court finds Sharper Image has not provided sufficient evidence to support a finding that, under any of these theories, whether alone or in combination, it has a reasonable probability of establishing that any of the challenged statements are false.

1. Applicability of Protocol Employed
The tests employed by Consumers Union “utilized the Clean Air Delivery Rate (‘CADR’) methodology.” ( See Connelly Decl., filed January 23, 2004, 6; See also id.   13.) Consumers Union, in the February 2002 article, described CADR as “the industry yardstick that gauges how quickly an air cleaner reduces pollutants such as dust and tobacco-smoke particles.” ( See Heim Decl., filed January 23, 2004, Ex. A at 46.) The Association of Home Appliance Manufacturers (“AHAM”), a trade organization that certifies air cleaners using a test employing CADR methodology, has described CADR as follows:
 * Clean Air Delivery Rate (CADR) is defined as the measure of the delivery of contaminant free air by a portable household electric cord-connected room air cleaner, expressed in cubic feet per minute. More technically, Clean Air Delivery Rates are the rates of contaminant reduction in the test chamber when the unit is turned on, minus the rate of natural decay when the unit is not running, times the volume of the test chamber as measured in cubic feet.

( See Parker Decl., filed December 15, 2003, Ex. B at 4.) Sharper Image, in its opposition, describes the “CADR test” as a “speed test.” ( See Pl.’s Response to Pl.’s Mot., filed December 15, 2003, at 19:13-14.)

At the outset, the Court observes that CADR is not itself a “test.” Rather, CADR is a “measure of air cleaner performance.” ( See Parker Decl., filed December 15, 2004, Ex. B at 4.) AHAM has designed one specific test, the ANSI/AHAM AC-1-2002 (“AC-1"), to measure CADR. ( See id. Ex. B.) The test designed by Consumers Union to measure CADR is, as discussed below, another such test. In any event, Sharper Image argues that any test measuring CADR is “inappropriate for evaluating the IBQ’s performance, at least when applied in isolation from other factors such as noise, energy consumption and consumer-use patterns.” ( See Pl.’s Renewed Opp., filed May 21, 2004, at 9:18-20.) Consumers Union, however, rated each tested model in the category “noise” and included, as to each model, the annual energy cost. Thus, contrary to Sharper Image’s argument, Consumers Union expressly tested, and disclosed its results on, the factors of noise and energy consumption.

With respect to Consumers Union’s use of CADR methodology as part of its testing, the Court initially notes that Sharper Image has not offered any evidence to support a finding that CADR methodology is, per se, inapplicable to the IBQ. Indeed, the evidence offered by Sharper Image is to the contrary, specifically, an AHAM publication indicating CADR methodology is applicable to air cleaners that, inter alia, “operate with an electrical source of power and contain a motor and fan for drawing air through a filter(s),” and also those that, like the IBQ, “incorporate an ion generator only.” ( See Parker Decl., filed December 15, 2003, Ex. B at 1-2.) Rather, Sharper Image offers evidence that CADR methodology has been, in Sharper Image’s words, “criticized.” ( See Pl.’s Response to Def.’s Mot., filed December 15, 2003, at 6:14-16.)

The “criticism” offered by Sharper Image consists of the following statements:

(1) In two articles, one found on the website www.hb2000.org and the other in the September 1999 newsletter of the International Society of Indoor Air Quality and Climate, the writers, who in both instances are unidentified, purport to recount discussions that occurred at a “workshop in August 1999 held at the Indoor Air ’99 conference in Edinburgh.” ( See Burke Decl., filed May 21, 2004, Ex. 27, first two unnumbered pages; See also id. Ex. 28 at 4-5.) According to the article on the above-referenced website, participants at the workshop discussed “drawbacks of only reporting a CADR on a product sold to the public,” for example, that an “average consumer” does not understand “the concept of CADR.” ( See Burke Decl., filed May 21, 2004, Ex. 27, second unnumbered page.) According to the article in the abovereferenced newsletter, participants discussed that “[i]n the USA, the AHAM standard is the current accepted method by which portable air cleaners are tested and rated for comparable performance on particulate reduction,” and that “there is no consensus in other countries as to a uniform set of criteria by which portable air cleaners can be rated.” ( See id. Ex. 28 at 5.) Both articles indicate that one topic of discussion was that a number of “important considerations should be factored into an internationally accepted test method to compare air cleaners,” and that the “AHAM standard, in the USA, does not include all of [those] considerations.” ( See id. Ex. 27, third unnumbered page; id. Ex. 28 at 5.)

(2) In an article authored by William W. Nazaroff (“Nazaroff”), of the Civil and Environmental Engineering Department at the University of California, Berkeley, which Sharper Image states was “published in relation” to a scientific conference in 2000, Nazaroff states the “CADR is becoming commonly used as a performance measure of air cleaning devices” and that “air-cleaning effectiveness depends on more than the CADR.” ( See id. 30, Ex. 29 at 1, 5.) In his article, Nazaroff proposes an “air quality model” to measure “steady-state air-cleaning effectiveness” where the “effectiveness is the ratio of the device’s clean-air delivery-rate (CADR) to the total removal rate by all processes.” ( See id. Ex. 29 at 5.) Specifically, Nazaroff proposes using an “equation” to measure “effectiveness,” where the CADR measurement for an air cleaner is considered along with other variables, such as the “volume flow rate.” ( See id. Ex. 29 at 2.)

(3) In an article written by Bruce McDonald (“McDonald”) of Donaldson Company, Inc., which Sharper Image states was published in the “October 1999 Proceedings of the American Filtration and Separation Society,” McDonald states “there has been a substantial amount of action in air filter test standards and practices over the past several years.” ( See id. Ex. 30 at 1; Ex. 31, second unnumbered page.) Among the examples of “action in air filter test standards and practices” that McDonald discusses are two, new, multi-part “cleanroom standards,” ( See id. Ex. 30 at 1-2), and a “draft international standard” for “cabin air filters for automobiles,” ( See id. Ex. 30 at 2). McDonald’s article, however, makes no reference to any standards and/or practices applicable to portable air cleaners.

(4) Katherine Hammond, PhD (“Dr. Hammond”), an environmental scientist retained by Consumers Union in June 2003 to “review and evaluate test protocols employed by [Consumers Union] in evaluating household air cleaners,” ( See Hammond Decl., filed January 23, 2004, 1), stated in a handwritten note: “[I]t is a good measurement, but it has its limitations <– CADR <– the concepts are standard[;] takes into account flow rate,” ( See Burke Decl., filed May 21, 2004, Ex. 25).

(5) During an interview of Robert A. Wood, M.D. (“Dr. Wood”), Director of the Pediatric Allergy Clinic at Johns Hopkins Hospital, conducted by a member of Consumers Union’s staff, Dr. Wood stated: “I think [the AHAM/CADR standard is] certainly a measure of function of the unit, but there, I think, could be additional measures that would help the consumer to really compare one unit to another.” ( See id. Ex. 26 at CU 0011680.) When next asked, “What’s missing?,” Dr. Wood replied: “What’s really missing is good studies on health benefits of air cleaners and good studies where different units are truly compared in real-world settings for their ability to remove particulates from the air and improve health. And how to design the test methods to equal that and provide that information is I think the hard part and something that there’s certainly smart enough people out there from engineering backgrounds to be able to do that.” ( See id. )

(6) The Environmental Protection Agency (“EPA”), in a document on its website titled “Indoor Air Facts No. 7 - Residential Air Cleaners,” states: “The Federal government has not published guidelines or standards that can be used to determine how well low to medium efficiency air cleaners work.” ( See Parker Decl., filed December 15, 2003, Ex. E at 5.) The EPA website refers persons who seek “further information on standards for portable air cleaners” to AHAM, and states that AHAM “provides information on air cleaners on their AHAM-certified Clean Air Delivery Rate site at www.cadr.org .” ( See id. ) The EPA website also states that persons wishing to assess “potential performance” of air cleaners should consider four “major factors affecting the performance of the air cleaner, specifically, the “percentage of the particles removed as they go through the device (that is, the efficiency),” the “amount of air handled by the device,” the “effective volume of the air to be cleaned,” and the “decrease in performance which may occur between maintenance periods and if periodic maintenance is not performed on schedule.” ( See id. Ex. E at 3.)

(7) Consumers Union, in an article titled “Household Air Cleaners,” published in the October 1992 issue of Consumer Reports, states:
 * There is no universally accepted performance standard for comparing air cleaners. The closest thing to one is the clean air delivery rate (CADR), which expresses the number of cubic feet of clean air a unit delivers each minute. The CADR, developed and certified by [AHAM] is used by some air-cleaner manufacturers on their products. For rooms of various sizes, the CADR is based on both the percentage of particles removed and how quickly they are removed. Tests performed to [AHAM’s] specifications provide CADR numbers for dust, smoke, and pollen. We believe the CADR numbers alone don’t provide a complete picture of an air cleaner’s effectiveness. It’s also necessary to know the unit’s total air-flow rate to properly assess efficiency. Two cleaners may have the same CADR, but the one with the lower total air flow will be the more efficient.

( See id. Ex. C at 657, 658.)

Sharper Image’s evidence of “criticism” of the CADR does not support a finding that Consumers Union’s statements that the IBQ is ineffective, unimpressive, removed few particles, performed poorly, or statements of a similar nature, are false. Consumers Union’s statements concerning the effectiveness, or lack thereof, of the IBQ are based, as Consumers Union states in its articles, on the results of its tests measuring the CADR of the air cleaners. None of the scientists or other parties who have “criticized” the CADR have stated, or even suggested, that a test result based on CADR measurements is scientifically unreliable. Cf. Consumer Justice Center, 107 Cal. App. 4th at 605 (holding where plaintiff offered evidence that defendant’s statement that its product was “scientifically proven” to increase breast size was “not supported by any reliable scientific proof,” plaintiff’s showing was sufficient to “withstand a special motion to strike pursuant to section 425.16”). On the contrary, each of the above-quoted sources has stated that a CADR measurement is, at least in the United States, a common or standard measurement of an air cleaner’s performance.

In short, although Sharper Image’s evidence indicates that some scientists and others are of the view that factors in addition to the CADR should be considered in measuring the performance of portable air cleaners, there is no evidence that the CADR is, as a scientific matter or otherwise, an invalid consideration. The fact that some scientists may be attempting to develop other or additional ways of measuring the performance of portable air cleaners does not support a finding that test results based on CADR measurements are false.

Sharper Image’s argument, that Consumers Union lied by equating effectiveness with the results of Consumers Union’s CADR measurements, essentially boils down to a marketing dispute, or, as Sharper Image put it at the hearing on the motion to strike, a “merchandising competitive battle,” ( See Transcript of Proceedings, July 30, 2004, at 47-49), i.e., whether consumers considering a purchase of a portable air cleaner would prefer a device that purports to clean air faster, but with potentially higher usage costs and noise, or would prefer a device that purports to clean air more slowly, but with potentially lower usage costs and no noise. Consumers Union, however, fully disclosed in its articles the potential benefits of the IBQ, specifically, very low annual energy costs, no filter costs, and lack of noise. Consumers Union also stated that it did not find such benefits to be advantageous in light of the fact that the IBQ, as Sharper Image concedes, does not clean the air quickly.

Consumers Union’s statements that the IBQ is ineffective are predicated on its determination that the speed at which portable air cleaning devices remove dust and smoke particles from the air is of concern to its readers and, accordingly, it gave the IBQ a “poor” rating in both articles. Sharper Image has not shown any probability, let alone a reasonable probability, that Consumers Union’s statements in that respect are false by reason of Consumers Union’s reliance, in forming such opinions, on the results of a test measuring CADR.

Additionally, with respect to Consumers Union’s statement that its tests were “based on the industry standard for measuring clean-air delivery rate (CADR),” Sharper Image has not shown such statement is false, given that Sharper Image’s own evidence shows that CADR is a common or standard measurement of an air cleaner’s performance.

2. Application of Protocol Employed
Sharper Image argues that to the extent Consumers Union’s statements are based on the results of Consumers Union’s tests measuring CADR, such statements are false because Consumers Union did not employ the CADR “test” properly. ( See Pl.’s Renewed Opp., filed May 21, 2004, at 10:7.) Specifically, Sharper Image argues that the test protocol employed by Consumers Union to measure CADR involved “deviations” from the AC-1 test protocol, the specific test designed by AHAM to measure CADR. ( See id. at 10:8-19.)

In particular, Sharper Image argues that Consumers Union’s test deviated from AHAM’s AC-1 test protocol in the following ways: (1) Consumers Union did not test for pollen removal, ( See Parker Decl., filed December 15, 2003, Ex. B at 2 (stating AC-1 “test particulate matter” is cigarette smoke, road dust, and pollen); Wallace Dep. at 43-44 (testifying Consumers Union tested for removal of cigarette smoke and road dust, but not pollen)); (2) Consumers Union’s test chamber was larger than that identified in the AC-1 test protocol, ( See Parker Decl., filed December 15, 2003, Ex. B, Appendix A (stating AC-1 test chamber should be 1008 cubic feet, or “10 ½ ft. x 12 ft. x 8 ft”); Wallace Dep. at 76 (testifying Consumers Union’s test chambers was 1700 cubic feet); Nanni Dep. at 62-63 (testifying dimensions of Consumers Union’s test chamber “roughly like 12 by 17 or 12 by 18”)); (3) Consumers Union did not use a continuous fan, ( See Parker Decl., filed December 15, 2003, Ex. B at 5 (stating, for AC-1, “recirculation fan is to be operated throughout all tests”); Wallace Dep. at 99 (testifying Consumers Union did not run continuous fan during its testing)); and (4) Consumers Union turned on the air cleaners manually, rather than remotely, ( See Parker Decl., filed December 15, 2003, Ex. B at 7-8 (stating, for AC-1, air cleaners should be “turn[ed] on” after “chamber valve” is closed); Wallace Dep. 182 (testifying Consumers Union’s staff manually turned on air cleaners by “dash[ing] in and dash[ing] out” of test chamber)).

Consumers Union did not represent, in either of the two subject articles or in any statement republished by third parties, that the test protocol it employed to measure CADR was the AC-1 test protocol designed by AHAM. Consequently, to the extent Sharper Image argues that Consumers Union’s test protocol “deviated” from the AHAM-designed test, such evidence, standing alone, is insufficient to support a finding that any of Consumers Union’s statements were false. Rather, the issue presented by evidence of any “deviation” is whether Consumers Union’s statements concerning the effectiveness of the IBQ, which were based on the results of tests whose protocol differed from the AC-1, were false because the deviations from the AC-1 test protocol rendered Consumers Union’s results unreliable. See, e.g., Consumer Justice Center, 107 Cal. App. 4th at 605 (holding plaintiff had reasonable probability of proving statements about efficacy of product were false where statements “not supported by any reliable scientific proof”).

Of all the asserted deviations, the only deviation that Sharper Image has specified as affecting the reliability of the test results is Consumers Union’s not having turned on the air cleaners remotely. Sharper Image does not contend, however, and there is no evidence to suggest, that Consumers Union’s personnel remotely turned on all of the air cleaners except for the IBQ; rather, it is undisputed that Consumers Union did not turn on any air cleaner remotely. ( See Wallace Dep. 182:19-20 (“we did the same thing for all the models”).) Nor has Sharper Image articulated any basis, let alone pointed to any evidence, to suggest that the IBQ would, as compared to the other tested air cleaners, perform more poorly than the other cleaners as a result of such “deviation.” Rather, Sharper Image argues that Dr. Hammond, one of Consumers Union’s experts, testified, as characterized by Sharper Image in its opposition, that “in another context, [ ] she believed such a deviation from the AC-1 protocol would ‘change things drastically.’” ( See Pl.’s Renewed Opp., filed May 21, 2004, at 19:16-18 (quoting Hammond Dep. at 155-56).)

In the portion of the deposition on which Sharper Image relies, Dr. Hammond refers to a memorandum dated June 18, 2003 that she wrote to Consumers Union, in which she commented on a “July 2000 report for Performance Analytical, Inc., on the ‘Comparison of Clearance Allergen-Sized Airborne Particulate by Electrically Powered Household Air Cleaning Devices.’” ( See Hammond Dep. at 154:9 - 155:5.) At her deposition, Dr. Hammond discusses a “bullet point” in that memorandum, which read: “Why couldn’t the Quadra [IBQ] be turned on remotely? Opening the door would change things drastically!” ( See id. at 155:7-10.) Dr. Hammond testified that this comment was a reference to persons entering the test chamber to manually turn on the air cleaner being tested, a circumstance which, in her view, could cause particles to “either enter or leave the chamber.” ( See id. at 155:11-18.) When asked if she knew “what impact that would have on the experiment’s results,” Dr. Hammond replied, “I think it just undermines the study itself.” ( See id. at 156:8- 12.)

The above-discussed testimony by Dr. Hammond is insufficient to “support a prima facie showing of facts to sustain a favorable judgment if [it] is credited.” See Metabolife, 264 F. 3d at 840. First, Sharper Image has not shown that the test discussed in Dr. Hammond’s July 18, 2003 memorandum, specifically, the test described in the “July 2000 report for Performance Analytical, Inc,” was conducted under conditions similar to those under which Consumers Union’s test was performed. See Unelko Corp., 912 F. 2d at 1056-57 (holding, where plaintiff alleged defendant’s statement that plaintiff’s product “didn’t work” was false and offered evidence that its own tests showed product was effective, plaintiff’s evidence was insufficient to establish falsity in absence of showing that tests performed by plaintiff and defendant occurred “under same conditions”). Second, even assuming the results of a test measuring an air cleaner’s CADR would be unreliable if particles entered or exited the chamber as a result of a person’s entering the test chamber to manually turn on the air cleaner, Consumers Union has offered evidence that its “particle counter showed no effect at all” as a result of its staff entering the chamber to turn on the air cleaners, ( See Wallace Dep. at 182:6-18), and Sharper Image has submitted no evidence to contradict Consumers Union’s showing.

In sum, Sharper Image has not submitted sufficient evidence to support a finding that Consumers Union’s manual turning on of the air cleaners rendered the results of its tests unreliable, and has offered no evidence to establish that the other “deviations” rendered Consumers Union’s test results unreliable. Under such circumstances, Sharper Image has not shown a reasonable probability of establishing falsity under the theory that Consumers Union, in forming its opinions, relied on the results of a test that deviated from the AC-1 test designed by AHAM to measure CADR.

3. Results of Consumers Union’s Testing
Sharper Image argues that Consumers Union’s statements concerning the effectiveness of the IBQ are false because Consumers Union’s test results actually demonstrated the IBQ is, in Sharper Image’s view, an effective air cleaner. Specifically, Sharper Image points to the results of Consumers Union’s long-term testing of the IBQ, which showed that the IBQ removed more particles than were removed as a result of “natural decay.” ( See, e.g., Burke Decl., filed May 21, 2004, Ex. 15 at CU0013164.) Sharper Image also relies on evidence Consumers Union considered and decided against including in the October 2003 Consumer Reports article, specifically, graphs that depicted the test results of the IBQ, along with accompanying text, which included a statement that the IBQ was “barely better than no cleaner at all.” ( See Heim Dep. at 111:23 - 113:2; Burke Decl., filed May 21, 2004, Ex. 24 at CU 0002300.)

As discussed above, the results of the long-term testing were disclosed in Consumers Union’s October 2003 article. Consumers Union, in describing the results of the long-term testing, stated: (1) “Sharper Image, Honeywell, and Hoover precipitators are quiet and cost little to run. However, our tests show that they are not effective.”; (2) “The Ionic Breeze and the Environizer are quiet but ineffective.”; (3) “The Ionic Breeze and the Environizer didn’t come close to the performance of the others.”; and (4) “The Ionic Breeze and Environizer had very slow rates of cleaning, which did not improve over time. . . . ” ( See Heim Decl., filed January 23, 2004, Ex. B at 26, 27.) Sharper Image alleges that each of the above-statements is false. ( See AC¶ 54.)

To determine whether a statement is false, a court must examine the “context in which the statement was made.” See Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees, 69 Cal. App. 4th 1057, 1064 (1999). Specifically, a court must “look at the nature and full context of the communication and to the knowledge and understanding of the audience to whom the publication was directed.” See id. Here, Consumers Union plainly and succinctly disclosed what Consumers Union meant by an “effective” air cleaner. Specifically, Consumers Union explained that, in its view, if an air cleaner slowly removes particles from the air, “then running [it] for 24 hours is not going to make it an effective air cleaner when infiltration of air containing particles into a room continues.” ( See Heim Decl., filed January 23, 2004, Ex. B at 27.) In the “bottom line” section of the portion of the article discussing Consumers Union’s long-term testing of air cleaners, Consumers Union, again disclosing its view that air cleaners are not effective if they clean air very slowly, stated that the IBQ was “ineffective” and that “considering how slowly [the IBQ] worked,” advised against its purchase. ( See id. ) Because Consumers Union disclosed that the IBQ did remove some particles from the air, albeit “slowly,” a reader would not understand Consumers Union to be claiming that the IBQ performed no better than “natural decay,” i.e., where no air cleaner was used.

Accordingly, Sharper Image has not shown a reasonable probability of proving any of the challenged statements are false by reason of the results of Consumers Union’s own testing.

4. Results of Sharper Image’s Testing
Sharper Image argues that testing performed on its behalf demonstrates the IBQ is “effective,” specifically, that the IBQ is “effective at removing a significant percentage of particles, particularly pollen and allergens.” ( See Pl.’s Renewed Opp., filed May 21, 2004, at 12:10-11.) In support of this argument, Sharper Image offers copies of studies and/or reports authored by (1) Thomas A. E. Platts-Mills, M.D., Ph.D. (“Dr. Platts-Mills”), a professor with the University of Virginia School of Medicine, ( See Platts-Mills Decl., filed December 15, 2003, 1, 5, Ex. B), (2) Jeannette Campbell (“Campbell”), Project Manager with Columbia Analytical, Inc., a commercial environmental testing laboratory, ( See Campbell Decl., filed December 15, 2003, 1, 7, Exs B, C; Burke Decl., filed May 21, 2004, Exs. 17, 18), and (3) Harriet A. Burge, Ph.D. (“Dr. Burge”), a professor at the Harvard School of Public Health and a consultant for Sharper Image, ( See Burge Decl., filed December 15, 2003, 1, 5, Ex. B). Some of these studies and reports, or versions thereof, were provided by Sharper Image and/or Dr. Burge to Consumers Union after Consumers Union published the February 2002 article and before Consumers Union published the October 2003 article. ( See Asher Decl., filed January 23, 2004, Exs. E, I; Burge Decl., filed December 15, 2003, 5.)

Sharper Image does not contend, and there is no evidence, that any of the studies and reports on which it relies disclose the results of tests conducted under conditions similar to those performed by Consumers Union. Rather, Sharper Image’s evidence supports a finding that there exist divergent views as to what factors or criteria should be considered in determining whether a portable air cleaner is “effective.” As noted, Consumers Union disclosed in its articles the criteria on which it based its opinion as to effectiveness, specifically, how quickly each tested device could remove dust and tobacco smoke from the air. The experts on which Sharper Image relies have chosen to focus on other criteria, such as “odor intensity.” ( See Campbell Decl., filed December 15, 2003, 13-15). Further, none of the experts on which Sharper Image relies has, at least in the studies and reports provided by Sharper Image, compared the IBQ to any other portable air cleaner. Thus, the fact that some researchers are of the opinion that the IBQ is “effective” does not create a triable issue of fact as to whether Consumers Union’s statements as to the effectiveness of the IBQ, which were based on the results of Consumers Union’s CADR measurements, are false.

Sharper Image also argues that certain of Consumers Union’s statements in the October 2003 Consumer Reports, addressing the studies and reports Sharper Image submitted to Consumers Union, were false. Consumers Union, in addressing those studies and reports, stated:
 * We hired both Prof. Lippmann and S. Katherine Hammond . . . to evaluate the results of several studies that Sharper Image sent us to demonstrate the Ionic Breeze’s effectiveness. According to our two experts, some of those studies were irrelevant to the question of whether the Ionic Breeze was an effective air cleaner.” For example, one Virginia study used the Ionic Breeze only as a particle sampler, not an air cleaner. Other studies used questionable methodology or showed merely that the Sharper Image had little air-cleaning capability.

( See Heim Decl., filed January 23, 2004, Ex. B at 27.) Sharper Image alleges that the statements “some of those studies were irrelevant to the question of whether the Ionic Breeze was an effective air cleaner” and “[o]ther studies used questionable methodology or showed merely that the Sharper Image had little air-cleaning capability” are false. ( See AC¶ 54.) Sharper Image fails, however, to offer sufficient evidence to demonstrate that it has a reasonable probability of proving either such statement is false.

Initially, the Court observes, as Consumers Union has pointed out, that neither of the challenged statements is a statement of Consumers Union, but rather, as is disclosed in the article, both are statements of Dr. Hammond and/or Prof. Lippmann. Sharper Image has offered no evidence that these opinions were not actually conveyed to Consumers Union by Dr. Hammond and/or Prof. Lippmann; Sharper Image thus appears to be asserting that the statements of Dr. Hammond and/or Prof. Lippmann are false and that Consumers Union is liable for republishing such allegedly false statements. Accordingly, the Court next turns to the issue of whether Sharper Image has demonstrated a reasonable probability of establishing that the statements of Dr. Hammond and/or Prof. Lippmann are false.

With respect to Consumers Union’s statement that Dr. Hammond and/or Prof. Lippmann had concluded that “some” of the studies provided by Sharper Image were “irrelevant to the question of whether the Ionic Breeze was an effective air cleaner,” Consumers Union has offered evidence that, in fact, some of Sharper Image’s studies were irrelevant to that specified question, and Sharper Image has not shown to the contrary. In the October 2003 article, Consumers Union provided an example of an “irrelevant” study: “For example one Virginia study used the Ionic Breeze only as a particle sampler, not an air cleaner.” ( See Heim Decl., filed January 23, 2004, Ex. B at 27.) As both Dr. Hammond and Prof. Lippmann have stated, “measuring or sampling air to determine the quantity of a pollutant in the air is irrelevant to the determination of whether a device is effective in cleaning, or removing, the pollutant from the air.” ( See Hammond Decl., filed January 23, 2004, 11; Lippmann Decl., filed January 23, 2004,  11.) Although the October 2003 article only included one such example, Consumers Union, in support of the instant motion, offers evidence that two additional studies, authored by professors at the University of Virginia and provided by Sharper Image to Consumers Union, used the IBQ only as a particle sampler, not as an air cleaner. ( See Hammond Decl., filed January 23, 2004, 11; Lippmann Decl., filed January 23, 2004,  11.) Indeed, each such “Virginia study” itself states that the IBQ was tested as a particle sampler. ( See Asher Decl. Ex. I, fourth attachment at 407) (“In conclusion, the results show that [the IBQ] can be used as a simple, quiet, and very sensitive technique for monitoring airborne allergen”); ( See id. Ex. I, fifth attachment at 12) (“In conclusion the results reported here show that the [IBQ] provides a new approach to monitoring airborne allergen. The combination of silence, moderate airflow and ease of sampling makes it suitable for monitoring airborne exposure in homes during normal domestic life.”)

With respect to Consumers Union’s statement that Dr. Hammond and/or Prof. Lippmann concluded that “other” studies provided by Sharper Image “used questionable methodology or showed merely that the Sharper Image had little air-cleaning capability,” Consumers Union has offered evidence explaining the basis on which its experts formed such opinions. Specifically, Dr. Hammond advised Consumers Union that, in her opinion, studies conducted by Performance Analytical had “serious limitations,” including having the “cleaned air [ ] blown at the particle monitors” and having “initial conditions var[ying] greatly from experiment to experiment and between the two chambers [used in the studies].” ( See Asher Decl., filed January 23, 2004, Ex. K, third unnumbered page.) Additionally, both Dr. Hammond and Prof. Lippmann have declared that “several” of the studies submitted by Sharper Image to Consumers Union “provide data that are, in fact, consistent with [Consumers Union’s] test results for submicrometer sized particles.” ( See Hammond Decl., filed January 23, 2004, 11; Lippmann Decl., filed January 23, 2004,  11.) Sharper Image has offered no evidence that the studies conducted by Performance Analytical did not have the limitations identified by Dr. Hammond or that some of the studies it submitted to Consumers Union provided data consistent with Consumers Union’s results for submicrometer sized particles.

Accordingly, Sharper Image has not shown a reasonable probability of proving any of Consumers Union’s challenged statements are false based on the results of Sharper Image’s testing.

5. Other Statements
As noted, among the false statements Sharper Image alleges Consumers Union has made are statements that the Friedrich and the IBQ “both use similar technology,” ( See AC¶ 51), and that the Friedrich earned “high marks” from Consumers Union, ( See AC¶ 53).

With respect to “both use similar technology,” Sharper Image argues the statement is false because the Friedrich, unlike the IBQ, uses a fan. ( See Pl.’s Renewed Opp., filed May 21, 2004, at 8:14-15.) The February 2002 Consumer Reports article, in which the challenged statement was made, states that Consumers Union had tested two air cleaners that “use an electronic precipitator,” the Friedrich and the IBQ. ( See Heim Decl., filed January 23, 2004, Ex. A at 46.) Moreover, the article disclosed that the Friedrich uses a fan, while the IBQ does not. ( See id. ) Thus, contrary to Sharper Image’s assertion, the only reasonable understanding of “similar technology,” in context, is as a reference to the fact that both the Friedrich and the IBQ use an electronic precipitator, not that both the Friedrich and the IBQ have, or do not have, a fan. See Monterey Plaza Hotel, 69 Cal. App. 4th at 1064 (holding court, in determining falsity, must consider “full context” of statement).

With respect to the statement that the Friedrich received “high marks” from Consumers Union, Sharper Image has failed to set forth any theory as to how it can establish the statement is false; consequently, for this reason alone, Sharper Image is not entitled to proceed on claims based on such statement. See Metabolife Int’l, 264 F. 3d at 840 (holding plaintiff has burden to demonstrate its claims are “supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited”). In any event, both of the subject Consumer Reports articles disclose the results of the testing conducted by Consumers Union, which results demonstrate the Friedrich’s ability to quickly remove particles from the air. As noted, Sharper Image has not shown that the test protocol used by Consumers Union was scientifically, or otherwise, invalid, nor does Sharper Image suggest Consumers Union did not actually obtain the results it reported as to the Friedrich.

C. Actual Malice
Because Sharper Image has not demonstrated a reasonable probability that any of the challenged statements were false, the Court does not reach the issue of whether Sharper Image can establish that any false statement was made with actual malice.

For the reasons expressed above, Consumers Union’s motion to strike Sharper Image’s Amended Complaint is hereby GRANTED.

This order closes Docket Nos. 54, 83, and 208.

IT IS SO ORDERED.