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ACA may hold ‘especially important’ evidence in Mass. data access case, AAI argues

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The Auto Care Association (ACA) “stands at the center” of the Massachusetts vehicle data access case, and the new evidence it could provide has bearing on the central question of whether OEMs “can safely (and consistent with their federal law obligations) comply with the Data Access Law’s requirements,” the Alliance for Automotive Innovation told a federal judge in a brief filed Tuesday.

AAI in November asked US District Court Judge Douglas Woodlock to reopen evidence in the case, AAI v. Maura Healey, after a similar ACA-backed data access initiative was put forward in Maine. Significant differences between the law approved by Massachusetts voters in November 2020 and the new Maine initiative submitted in August, both promoted by the ACA, show that those who drafted the Maine legislation recognized that the Massachusetts legislation is flawed, AAI argued.

The disputed Massachusetts legislation, an expansion of the state’s earlier right-to-repair law, requires OEMs to equip every vehicle sold in that state that uses a telematics system with “an inter-operable, standardized and open access platform.” The law was to have taken effect with the 2022 model year.

“In this ongoing dispute over whether terms in the Data Access Law are problematic, Auto Innovators seeks to discover new evidence suggesting that the drafter of that law—the Auto Care Association (‘ACA’)—has recently recognized that several terms in the law are problematic and changed them in its latest state initiative effort,” AAI argued in its latest filing.

It said ACA should be subpoenaed to provide answers about those differences.

Massachusetts Attorney General Maura Healey has asked Woodlock to deny the request. In a reply filed Dec. 6, she arguing that the Maine legislation has no bearing on the AAI lawsuit, and that reopening evidence would cause further delays.

“This Court should deny the Alliance’s request because none of the evidence it seeks to discover has any bearing on its facial challenge to the Massachusetts law, and because the resulting delay would undermine the public’s interest in prompt resolution of the Alliance’s preemption claims,” Healey wrote.

In its Tuesday filing, AAI said its request would support Woodlock’s expressed desire for a “fully developed” record in the case, and would not result in any significant delay.

“…[T]the issue is that Auto Innovators has maintained throughout this case that it cannot safely comply with the plain-language requirements of the Data Access Law, the Attorney General (with the aid of ACA) has sought to minimize that language and those concerns, and now there is evidence tending to suggest that the group that drafted the Data Access Law might agree with Auto Innovators that some of the terms in that law are problematic from a safety or cybersecurity perspective,” the Alliance said.

“Although ACA may deny that is the case, Auto Innovators should be entitled to develop the record on this point, particularly where it can do so expeditiously and in a way that will not result in any meaningful delay in the case,” it said.

AAI pointed out that the new evidence it seeks was not available when the case was argued in the summer of 2021, and contended that ACA holds evidence that may be “especially important and probitive.”

The brief detailed ACA’s central role in the Data Access Law.

“ACA drafted the Massachusetts ballot initiative that became the Data Access Law. ACA participated extensively at trial, with ACA producing documents and its then-CEO Aaron Lowe serving as one of the Attorney General’s two fact witnesses. ACA helped develop and fund the ‘Right to Repair Committee,’ which spent $20 million to get the initiative passed, and which sought to participate as amicus here. The trial evidence even showed that the committee that ACA helped develop and fund paid the Attorney General $185,000 to aid in defending this case.

“In short, the Attorney General has not been operating on her own here; she enlisted ACA, and ACA enlisted itself, in the efforts to defend that law’s requirements.”

The Alliance argued that ACA’s evidence “is directly relevant to the determination that this Court will soon have to make whether the very party pushing those initiatives at the ballot box has now tacitly recognized the problems with several of the requirements it put into the Massachusetts initiative.”

It also pointed out that, despite her expressed concerns about delaying a resolution of the case, Healey had been allowed to reopen evidence in October 2021, after her office discovered that Subaru and Kia had disabled the telematics of their vehicles sold in Massachusetts after passage of the law.

In that instance, Healey argued that the OEMs’ actions proved that they could take actions to comply with the law, contradicting the AAI’s position. AAI countered that it had never said the law would be impossible to comply with, and argued that the OEMs’ actions were merely avoidance of the law and not compliance.

Now, “the Attorney General complains generally about how trial was ‘a year and a half ago’ and how Massachusetts voters voted ‘more than two years ago.’ But the Attorney General does not (because it cannot) point to anything to suggest that Auto Innovators has delayed resolution of the issues here. Throughout this case, Auto Innovators has acted with all deliberate speed,” the Alliance said.

ACA, while not a party to the suit, filed its own brief in opposition to AAI’s request on Dec. 6. It accused AAI of seeking to “use the discovery powers of this Court to prepare to fight a right to repair ballot initiative that is gathering momentum in a state other than the Commonwealth of Massachusetts and has no bearing on the issues in this lawsuit.”

The documents AAI is seeking would give it an unfair advantage in “potential future disputes between the parties on right to repair issues,” ACA said. It said the “sensitive and confidential information” includes “advocacy and public relations strategies, internal analyses, communications with supporters, and financial information pertaining to the Maine initiative.”

AAI said that concern is misplaced, and in any event can be addressed as it works with ACA and the attorney general to refine its request for evidence.

“Auto Innovators is not interested in discovering details about ACA’s work on the Maine ballot initiative for the purpose of challenging that initiative, which is still in its nascent stages. That is, Auto Innovators has no interest in discovering such things as ACA’s ‘public relations strategies,’ ‘communications with supporters,’ or ‘financial information pertaining to the Maine initiative,’” AAI said. “Auto Innovators simply wants to know why ACA dropped some of the more problematic terms from the Data Access Law when it shifted its efforts from Massachusetts to Maine. Its subpoena is targeted at that probative information.”

More information

Maine initiative has no bearing on legality of Mass. Data Access Law, AG argues

Maine coalition moves to put ‘right-to-repair’ legislation before voters in 2023


Featured image by Baris-Ozer/iStock

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