Overview
Massachusetts voters approved a ballot initiative on November 3, 2020 that significantly expanded vehicle manufacturer obligations under Massachusetts’ “Right to Repair” (“RtoR”) law. In general, RtoR laws require that manufacturers provide consumers or independent repair shops access to information that allow them to efficiently repair consumer products outside of warranty. RtoR laws in many states cover automobiles, farm equipment, electronics and other products. On November 20, 2020, the Alliance for Automotive Innovation, an automotive manufacturer trade association, filed a lawsuit[1] in federal court to enjoin the enforcement of the ballot initiative (the “Lawsuit”).
The ballot initiative amended Mass. Gen. Laws Chapter 93K (“Ch. 93K”). For motor vehicles covered by Ch. 93K Section 1 that use a telematics[2] system, manufacturers were required to equip 2022 model-year and later vehicles with:
- An inter-operable, standardized and open access platform for all makes and models;
- The open platform must be able to securely communicate data by direct data connection to the platform;
- The open platform must be accessible by the vehicle owner through a mobile-based application;
- With owner authorization, the data must be accessible by independent repair facilities or class 1 dealers licensed under Massachusetts law; and
- Access to the open platform must include the ability to send commands to in-vehicle components if needed for purposes of maintenance, diagnostics and repair.
Mass. Gen. Law ch. 93K §2(f). This provision caused serious concerns for vehicle manufacturers who would need to modify engineering and product plans for 2022 model-year vehicles and develop a mobile application in short order. Because new model year vehicles are usually introduced and sold in the prior calendar year, manufacturers had mere months to comply with the amended RtoR law.
After the Lawsuit was filed, the Court expressed that it preferred to resolve the case on a full evidentiary record, rather than in the context of a preliminary injunction with a less developed record. As a result, the AG agreed to delay enforcement of the amended Chapter 93K to allow the Court to decide the case (the “non-enforcement stipulation”). After considerable litigation[3], the Lawsuit remains pending. Indeed, on February 22, 2023, the Court ordered the parties to submit a joint status report on or before March 31, 2023.
However, on March 7, 2023, the new Mass. AG, Andrea Joy Campbell[4], upended the Lawsuit and filed a notice of her intent to terminate the AG’s non-enforcement stipulation on June 1, 2023 (the “Notice”). In other words, the AG intends to enforce the amended Chapter 93K in less than three months. The Mass. AG stated in the notice that:
Termination of the Attorney General’s non-enforcement stipulation effective June 1, 2023, is in the public interest. The people of Massachusetts deserve the benefit of the law they approved more than two years ago. Consumers and independent repair shops deserve to know whether they will receive access to vehicle repair data in the manner provided by the law. Auto manufacturers (“OEMs”) and dealers need to understand their obligations under the law and take action to achieve compliance. In January 2021, the Court warned the Alliance’s members that “if their business planning is not including thinking about” the Data Access Law “coming into play at some point,” they were “whistling by the graveyard on it.” [citation omitted]. Nevertheless, the evidence at trial in June 2021 showed that neither of the two “representative” OEMs, GM and FCA (now Stellantis), had attempted to comply with the law, [citation omitted], and those two companies confirmed their refusal to make any efforts to comply with the law in declarations filed on October 21, 2022 [citation omitted].[5]
The Notice puts vehicle manufacturers in a quandary. Without a ruling from the court on the merits of the Lawsuit, vehicle manufacturers seemingly have, at least, three options: (1) renew their motion for preliminary injunction; (2) reach a settlement with the AG; or (3) comply with Chapter 93K. According to the Notice, some manufacturers have stated that they may comply with Chapter 93K by disabling telematics on vehicles. The impact of simply disabling telematics on product functionality or serviceability is unclear.
As of this writing, nothing else has been filed in the Lawsuit after the Notice. Needless to say, we will continue to monitor the Lawsuit.
[1] Alliance for Automotive Innovation v. Campbell, No. 1:20-cv-12090-DPW, U.S.D.C, D. Mass.
[2] “Telematics system” is defined by Massachusetts law as “any system in a motor vehicle that collects information generated by the operation of the vehicle and transmits such information, in this chapter referred to as ‘telematics system data,’ utilizing wireless communications to a remote receiving point where it is stored.” Mass. Gen. Laws ch. 93K, §1.
[3] Other articles have documented the procedural history of the Lawsuit. See e.g., https://www.autonews.com/dealers/whats-next-massachusetts-right-repair-case.
[4] Campbell succeeded as Mass. AG on January 18, 2023, replacing previous AG Maura Healey.
[5] Notice at 4 (emphasis added).
Motor Vehicle Group
BFKN’s Motor Vehicle Group works with automotive, truck, and powersports manufacturers across the country and around the world to implement market representation and development initiatives, litigate protests and lawsuits, and develop effective dealer agreements, standards, and policies. Our attorneys are knowledgeable and creative strategic partners. Whether litigating, counseling, or negotiating transactions on behalf of our clients, we bring to the table extensive in-depth knowledge of the motor vehicle industry and exceptional legal ability, a combination that uniquely positions us to help our clients efficiently and effectively solve difficult problems and achieve their business objectives.