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Judge indicates he will accept new evidence in Mass. ‘Right to Repair’ case

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A federal judge on Thursday said he is inclined to allow new evidence to be submitted in the Alliance for Automobile Innovation’s challenge of a new Massachusetts “Right to Repair” law, and asked both sides to agree to a discovery process by midweek.

Judge Douglas Woodlock said materials submitted by Massachusetts Attorney General Maura Healey, claiming to show that Subaru of America voluntarily directed the disabling of telematics in 2022 and newer Subarus sold to Massachusetts customers in light of the new law, “may not even be admissible” without authentication through the discovery process.

He noted that AAI had referred to the material as “inadmissible hearsay,” and that Healey has said she would be willing to take “further discovery.”

Woodlock told Assistant Attorney General Eric Haskell and John Nadolenco, a partner with Mayer Brown LLC representing AAI, that he was suggesting something between “a scorched earth discovery process” and “discovery lite.”

“I would be less than candid if I didn’t say to both parties, ‘Beware of the unintended consequences of the development of this evidence, for both parties’ respective positions.’ But that’s your problem, not mine,” Woodlock said. “My problem is to be sure that I get to the bottom of everything.”

Haskell suggested that the state may wish to send “a focused document” in the form of a subpoena to Subaru of America (SOA), and to take depositions from those who provided the materials and verbal information to the AG’s office.

The Alliance, the trade group representing virtually all of the nation’s automakers, including Subaru, has sued the state over the voter-approved Massachusetts Data Access Law, which would augment existing Massachusetts “Right to Repair” language regarding diagnostics access. The Alliance has asked the court to permanently enjoin enforcement of the law.

A key issue in the case is whether it is possible for OEMs to comply with both federal law and Section 3 of the state law, which requires any OEM with a telematics system to provide an “inter-operable, standardized and open access platform across all of the manufacturer’s makes and models” independent repairers could use, beginning with the 2022 model year.

Woodlock had said he would issue a decision in the case by Tuesday, but that deadline will undoubtedly now be reset. The trial concluded after oral arguments on June 25 and July 21.

Healey asked Woodlock to reopen the evidence in the case in a motion filed Friday. She argued that the material showing Subaru of America’s voluntary action to disable its StarLink system for vehicles delivered in the state is important to the case, as it refutes one of the AAI’s arguments at trial: That OEMs cannot disable their telematics systems only in Massachusetts to comply with the law.

One dealer, Stateline Subaru, provided a June 2, 2021, memorandum from the executive vice president of Subaru of New England (SNE) stating that, “to comply with the new Data Law, SOA has determined that it is no longer able to offer STARLINK Safety & Security subscriptions to Massachusetts residents beginning with model year 2022.” The memorandum states that the policy “will enable SOA and, in turn, SNE to distribute model year 2022 vehicles for sale or lease in Massachusetts.”

In a memorandum filed Tuesday, AAI countered that it never claimed that telematics could not be disabled just in Massachusetts, and argued that the point is moot, because that action would only allow OEMs to “avoid” the law’s requirements, rather than comply with them. Compliance, the group said, would require the creation, testing and adoption of a new platform, something not possible under the law’s timetable.

In the 45-minute remote hearing on Thursday, Woodlock showed no inclination to pursue those arguments, but instead expressed interest in exploring the “associational standing” between AAI and its members.

Although SOA is a member of AAI, and presumably has helped pay for the legal challenge to the law, Woodlock said, it has also voluntarily pulled the plug on StarLink, even though Healey has so far stipulated that her office will not enforce the law while the legal process is continuing. “What do you do when members of an association want to work both sides of the street?” he asked.

Woodlock said he might wish to see the communications among AAI and its members “about what members are going to do” on this issue, and signaled that he would not be sympathetic to any attempts to claim attorney-client privilege.

The judge noted that one case that the U.S. Supreme Court has been asked to rule on could have an effect on the Massachusetts case. Volkswagen AG has asked the high court to reverse an Ohio court ruling that allowed that state to proceed with a lawsuit over its diesel emissions scandal and manipulation of emissions control systems.

Although there are significant differences in the two cases, there are enough similarities to suggest that a broad ruling by the Supreme Court could have an impact on the Massachusetts law, Woodlock said. The court is expected to decide whether to take up the case relatively soon.

Woodlock has asked both parties to prepare briefs addressing that case, in the event that it is considered by the high court.

The AAI has argued that the new Massachusetts law would require OEMs to introduce cybersecurity risks to their vehicles, and that the 2022 model year time frame makes designing, testing and implementing meaningful countermeasures impossible.

Proponents said the measure, which augments the state’s original Right to Repair law passed in 2012, guarantees that as technology advances, drivers can continue to get their cars repaired where they want.

More information

Alliance: Mass. AG presents ‘nothing new’ in ‘Right to Repair’ lawsuit

Mass. AG: Subaru disables telematics in 2022 vehicles to comply with state’s disputed ‘Right-to-Repair’ law

Judge explores severability, preemption, OBD-II authorization in ‘Right to Repair’ proceedings

OEMs, Mass. AG file briefs ahead of closings in ‘Right to Repair’ trial

Mass. ‘Right to Repair’: Trade groups plan ‘REPAIR Act’; OEMs turn to courts; CCC analyzes


Featured image: A wooden gavel in front of the Massachusetts state flag. (Baris-Ozer/iStockphoto)

A portion of a window sticker for a 2022 Subaru Outback provided by a Massachusetts buyer to the attorney general. (Provided by the Massachusetts Attorney General’s Office.)

U.S. Massachusetts District Court Judge Douglas Woodlock. (Provided by U.S. Massachusetts District Court)

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