Massachusetts Right to Repair Case Inches Toward Decision As NHTSA Revised Guidance Dashes Hopes For Pre-Emptive Rules

Two procedural orders issued on September 14, 2022 by the Massachusetts federal court in Alliance for Automotive Innovation v. Healy suggest that a public decision in that case is unlikely to be forthcoming until October 2022 at the earliest. The case involves a challenge by the Alliance for Automotive Innovation, a trade association representing manufacturers in the automotive industry, to recent changes to the Massachusetts Right to Repair Law. Those changes, adopted by Massachusetts voters via a ballot initiative in November 2020, require that commencing with Model Year 2022 (MY22), vehicles sold in Massachusetts using telematics systems be equipped with “an inter-operable, standardized and open access platform” to enable customers and independent repair shops to access mechanical data from those systems.

In his first procedural order, Judge Douglas Woodlock ordered Auto Innovators and the Massachusetts Attorney General to conference and file on or before October 7, 2022 a single document setting forth areas of agreement regarding construction of the Right to Repair Law and separately stating areas of disagreement. In his second procedural order, Judge Woodlock ordered the parties to each file a declaration on or before October 7, 2022 setting forth the efforts each has made to implement the requirements of the Right to Repair law. The judge also ordered the parties to appear for a virtual hearing on September 21, 2022 to discuss “further steps for evidentiary development regarding the parties’ respective efforts” to implement those requirements.

These procedural orders follow an in camera September 1, 2022 hearing held by the court.  The clerk’s notes from that hearing report that the court “outlined the process for evaluating continuing claims of confidentiality in light of the forthcoming Memorandum of Findings and Conclusions” and told the parties that they would “be afforded an adequate opportunity to review the Memorandum in order to advise the court concerning potential confidentiality concerns.” According to the clerk’s notes, the court also requested further briefing from the parties “on two major outstanding issues, the proper interpretation of the initiative language and the steps, if any, by the parties to implement the initiative’s requirements,” and explained that this briefing was necessary “to provide a full development of the record, especially with respect to the Court’s exercise of its equitable powers, whether in connection with a period of stay pending appeal or otherwise.”

Meanwhile, the National Highway Traffic Safety Administration (“NHTSA”) recently published an update to its 2016 guidance on vehicle cybersecurity best practices. In the update, NHTSA recommended that OEMs strike a balance between the need for cybersecurity and third party access to the type of data that is at the heart of the Right to Repair litigation. But NHTSA also recognized that “the balance between third party serviceability and cybersecurity is not necessarily easy to achieve.” NHTSA’s guidance continues to be non-binding and voluntary, a point the Attorney General has made in the litigation to argue that the Right to Repair Law does not conflict with and therefore is not preempted by any binding federal law.