Massachusetts AG and OEMs Debate Whether Compliance With Massachusetts Right To Repair Law Is “Impossible”

On Friday, January 14, the Massachusetts Attorney General’s Office and the Alliance for Automotive Innovation filed dueling briefs in Alliance for Automotive Innovation v. Healey, a case pending in Massachusetts federal court, following post-trial discovery into how OEMs have responded to 2020 amendments to the Massachusetts Right to Repair Law. The court in that case agreed to reopen evidence in October 2021 after the Attorney General’s Office claimed to have been contacted by a Massachusetts resident who reported that he had purchased a 2022 Subaru Outback with its telematics system disabled.

In an interrogatory response served earlier this month, Auto Innovators acknowledged that Subaru and Kia have made the decision to disable telematics systems in model year 2022 (“MY22”) vehicles sold to Massachusetts residents. The companies chose to do so in response to changes to the Massachusetts Right to Repair Law, which requires that commencing with MY22, vehicles sold in Massachusetts using telematics systems be equipped with “an inter-operable, standardized and open access platform” that enable customers and independent repair shops to access mechanical data from those systems.

The Attorney General’s Office argued in its brief that Subaru’s and Kia’s actions demonstrates that “it is not impossible under any set of circumstances for any manufacturer to comply with [the new law]—the standard that [Auto Innovators] must satisfy to prevail on its facial preemption claims.” Auto Innovators argued in its brief that, even if OEMs can disable telematics systems for vehicles sold in Massachusetts, “statutory avoidance is not the same thing as statutory compliance.” According to Auto Innovators, just because some manufacturers have taken an approach of trying to avoid liability under one provision of the law does not change the fact that it is impossible for any OEM to comply with another aspect of that law.

Initially, Judge Douglas Woodlock told the parties that he expected to issue a decision by August 20, 2021. That deadline was later pushed to September 20, 2021. A decision was then postponed by the AGO’s request to reopen evidence concerning OEM compliance with the law. Now that the parties have submitted their respective supplemental post-trial briefs, there appears to be no further hurdles in place to prevent the court from issuing a decision, though the court has not yet committed to a specific date.

Meanwhile, the Massachusetts legislature is considering two amendments to the Right to Repair Law that would push the deadline for OEMs to comply until model year 2025. During a January 10, 2022 hearing (starting at the 47:00 mark in the linked video), a representative of the Massachusetts State Automobile Dealers Association (“MSADA”) testified in favor of the amendments, saying that requiring OEMs to comply with the Right to Repair Law by model year 2022 vehicles is “not a workable date” because OEMs need several years to develop the technology to comply. The MSADA also pointed out that because the amendments to the Right to Repair Law were passed via a ballot initiative, the “Legislature never had the opportunity to vet the law fully,” including the date by which compliance would be required.