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Autoline This Week #2616 - The Only Book About Every Automotive Law
Autoline This Week #2616 - The Only Book About Every Automotive Law
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About this episode
Delve into the intricate world of automotive law with experts Kevin McDonald and Carl Hockhammer, who discuss their book 'Automotive Law 101.' The episode explores the extensive regulations governing the automotive industry, from engineering and sales to consumer protection. Listeners will gain insights into the complexities of laws affecting everything from warranties to dealer franchise issues, and how emerging technologies like EVs and autonomous vehicles will shape future regulations. The conversation highlights the importance of understanding these laws for both industry professionals and consumers.
You cannot believe how many laws regulate the auto industry. So many that it’s almost impossible to keep track of. But two legal eagles, Kevin McDonald from VW Credit and Karl Hochkammer from Honigman LLP, have compiled a very complete catalog of laws and they explain what they’re about in plain English that anyone can understand. They’ve managed to take a boring topic and make it very interesting.
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Technical
Too Afraid to Ask
Term
NHTSA
"...instead of just saying to someone, hey, what's NHTSA?"
NHTSA is a government agency that makes sure cars are safe to drive. They create rules for car safety and help fix problems with vehicles when they are found.
NHTSA stands for the National Highway Traffic Safety Administration, a U.S. government agency responsible for ensuring the safety of motor vehicles and road users. They set regulations, conduct research, and oversee vehicle recalls to improve road safety.
Term
EV
"...with a lot of the EV and new auto startups. It just remains to be seen, frankly, over the long term..."
An EV, or electric vehicle, runs on electricity instead of gas. This means it doesn't produce exhaust fumes and can be cheaper to run.
EV stands for electric vehicle, which is powered entirely by electricity instead of traditional gasoline or diesel. EVs are known for being more environmentally friendly and often have lower operating costs compared to internal combustion engine vehicles.
Term
autonomous vehicles
"...there's also autonomous vehicles coming."
Autonomous vehicles are cars that can drive themselves without needing a person to control them. They use technology like cameras and sensors to understand their surroundings.
Autonomous vehicles, also known as self-driving cars, are designed to navigate and drive without human intervention using a combination of sensors, cameras, and artificial intelligence. They represent a significant shift in automotive technology and safety.
Term
EVs
"...on autonomous vehicles and EVs and things like that"
EVs are cars that run on electricity instead of gas. They are better for the environment and can save money on fuel.
EVs, or electric vehicles, are cars powered entirely by electricity instead of gasoline or diesel. They are known for being more environmentally friendly and often have lower operating costs compared to traditional vehicles.
Car
Ford Pinto
"Think of the Ford Firestone, think of the Pinto hearings, think of the Corvair hearings, think of, I mean, on and on you can go."
The Ford Pinto is a small car made by Ford in the 1970s. It became famous for having safety problems that could cause fires if it was hit from behind.
The Ford Pinto was a subcompact car produced by Ford from 1971 to 1980, known for its controversial safety issues, particularly regarding its fuel tank design that could lead to fires in rear-end collisions.
Car
Chevrolet Corvair
"Think of the Ford Firestone, think of the Pinto hearings, think of the Corvair hearings, think of, I mean, on and on you can go."
The Chevrolet Corvair is a car that was made in the 1960s. It was different because its engine was in the back, and it had some safety issues that made people concerned about how it handled.
The Chevrolet Corvair was a compact car produced by Chevrolet from 1960 to 1969, notable for its unique rear-engine design and controversial safety reputation, particularly regarding handling and stability.
Term
Automotive Law
"...the book is called Automotive Law 101"
Automotive Law is about the rules and regulations that apply to cars and their manufacturers. It covers things like safety standards and environmental regulations.
Automotive Law refers to the legal regulations and standards that govern the manufacture, sale, and operation of vehicles. This includes laws related to safety, emissions, and consumer protection.
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This is AutoLine This Week, the show that gets you inside
the global automotive industry.
AutoLine This Week partnered with the Consulate General
of Canada in Detroit to produce this episode.
Hi, I'm John McElroy and welcome to AutoLine This Week.
You know, I've always thought that the automotive industry
might be one of the most regulated industries in the world.
I had no idea.
That's what we're going to be talking about today,
the laws and regulations that affect the automotive industry.
My time boring right now, but believe me,
you're going to find this fascinating.
And I've got two experts who have just written a book
about automotive law that are joining me on today's program,
including Kevin McDonald and Carl Hockhammer.
And thanks for being here, you guys.
You have written a book called Automotive Law 101.
And just so the audience understands
what kind of regulations and laws we're talking about,
there are chapters devoted to laws
that regulate engineering and distribution,
marketing and advertising, sales, finance,
customer data privacy, warranty, product liability,
how to raise capital, and there's some new ones coming
as well as new technology comes into the industry.
So Kevin, let me just start with you.
Why did you write this book?
Sure.
Thanks for having us on the show, John.
We're thrilled to be here.
The way we approached this subject
was to think about the life cycle of an automobile,
from creation in your mind to all the way at the end.
And so we wanted to make it simple enough,
Automotive Law 101, 101 answers to commonly asked questions,
but structured around what do you have to think about
if you're engineering a car?
What do you have to think about if you are producing it?
If you're then distributing it or importing it
and then selling it to the dealer
and then financing it at the dealer
and then repairing the vehicle and after sales activity
and then how do you provide the funding
for all of that on the capital market?
So that's roughly the way we structured the chapters,
as you mentioned.
And one of the reasons that drove us to this
is that we saw throughout the course of our career
a lot of questions coming at us
that seemed to kind of be perhaps repetitive over the years
as we have new people coming to the industry,
even executives coming to us
who may not have the background that we have.
And so instead of just saying to someone,
hey, what's NITSA?
We'll go to the website and find out.
We wanted to position where NITSA might fit in, for example,
in the life cycle of a vehicle or the CFPB or EPA.
And so on that way, when someone has a question,
they can get it answered quickly in a page and a half,
but they can also see where that particular question fits
in the life cycle of that vehicle.
Carl, how'd you get involved in it?
Well, so Kevin and I have worked together
for many, many years.
And Kevin and I teach some classes
on consumer protection law, automotive law,
and we're both very interested in these things
and we talk about it all the time.
And so Kevin asked me to work with him
on co-authoring the book, which I was thrilled to do.
From our perspective in writing the book,
we were trying not to make it super hyper technical
from a legal perspective.
The intended audience is regular people,
not necessarily a lawyer.
And the other thing that is important,
I think in looking at what we did in the book,
we very specifically tried to avoid
what I call supply chain contracting matters,
where an OEM goes out and contracts with the supplier
to design, manufacture, and supply a part.
A lot of what we are really kind of focused on in our book
is looking at the automotive industry
from the consumer perspective.
These are all the things that go into
how a car is manufactured, sold, financed, serviced,
really to the consumer.
So we tried to make this very digestible
and frankly relevant to sort of the regular person.
Yeah, but the scope of what you've covered here
is extraordinary.
There's so many different topics, so many different laws,
so many different questions that you all address.
Kevin, how did you collect all this different information
about the law?
A lot of it, John, is based on questions
that we've gotten over the years in our careers.
Carl and I have been at this 50 years plus,
if you add up our time together.
And we've seen some questions just kind of pop up,
as I mentioned earlier.
As people come to us, John, whether they're out of college
or grad school, if they're new into the company,
or as I said, if they're laterals
and they may have experience in the tech industry,
but not automotive, or often in my cases,
where we have senior executives from Germany
who are absolute experts in their area,
but they come over to the company
and they have no idea what a lemon law is,
or they have no idea how recalls are governed
or what does fair lending mean.
And so I've taken notes over the years
on how I can prepare presentations
both internally and externally.
And when you look back over your career,
you think there seems to be some repetitive patterns here.
And so I wanted to kind of structure that
in a way for a broader audience
who may be interested in these subjects
or may want to know about these subjects
in a way that they can quickly go
and get their question answered,
but then also see how that fits in,
again, to that overall life cycle of the vehicle.
Because everything kind of fits together
when you take that 30,000 foot view
and look down over that regulatory landscape
that is, as you mentioned, very, very complicated.
But Carl, you must have had a checklist.
And I read all the different chapters that you had.
You guys must have been going back and forth
for trying to figure out if you had missed something or not.
Oh yeah, I mean, honestly,
Kevin is the one who took the lead on coming up
with the 101 frequently asked questions here.
But what we were trying to do
in organizing the way that the chapters relate,
as we tried to kind of put it in this topical areas,
because a lot of this stuff
kind of overlaps and intersects in very surprising ways.
And so because, frankly, in the US,
we tend to legislate and regulate
in reaction to problems in the marketplace,
it becomes complicated.
There's no like one overarching law
or set of regulations that really govern any of this.
And so, again, looking at this,
we were, Kevin and I were just trying to think about,
what are the types of questions
that we have heard over the years?
We certainly miss some things.
It would be just an encyclopedia
if you tried to cover absolutely everything and in depth.
But again, the intention is to provide an overview
of kind of the complexity of it and a starting point
for people who have interest in a particular topic.
We try not to oversight the book
with legal citations and things,
but frankly, what we provided, we think,
is enough that if somebody's interested in this,
they've got a little bit of a roadmap
to just start Googling, if nothing else.
Carl, how long did it take you to put the book together?
We're doing this sort of in our spare time.
I think it took, what, Kevin, a year and a half or so?
I think it was about a year and a half, John.
We kind of tended to be the pandemic project.
As we were grounded and not flying as much
and we wanted to be active in automotive things
outside of work, this kind of lended itself to that.
And so it was a perfect sort of project
to do in the home study.
Right.
Even so, I mean, there's colleagues of mine
in the media who have written books
and they usually take like a three month hiatus
from work to be able to go work on it.
So it's amazing that you guys have put this together
in only a year and a half.
But one of the nice things about being in a law firm
is we have summer law students,
typically a law student,
who's between their second and third year of law school,
and they come and work at a firm like mine.
It was really sort of, it was a paid internship.
And I had two summer associates
who were very interested in this
and agreed to help Chase Yarber and Quacy,
who he was referenced in the preface.
And both of them, you know,
really built on what Kevin and I put together
and, you know, did some additional detailed research,
citations and things like that.
So we did have some help,
which was very much appreciated.
Yeah, but still, Kevin,
this is not a cut and paste kind of a book.
You didn't just find copies of laws and paste them in.
I mean, you're interpreting things.
You're putting things in context,
different topics in context and the like.
How did you go through all that?
Well, one of the things that we looked at,
and Carl and I would talk about these issues
from time to time was, okay,
well, here's the black letter law,
and how have we seen it over our careers?
Where have we seen it play out
either with Carl and his clients or mine
and my clients over the years?
So if you take an entry on, say, warranty law,
well, what are some of the famous cases in warranty law,
or how have we seen it play out recently
in contracts that we've governed or what have you?
Obviously not disclosing confidential information,
but there's general principles that you can take, John,
to kind of summarize in a page or two
what we're talking about.
And that was also something we were very insistent on.
We didn't want to make this overly complex
because the topic itself is so broad,
but a lot of the entries lend themselves
to at least a page or a page and a half of brief explanation
that we think will answer some of the questions
hopefully a lot that people might have
just to satisfy their curiosity.
And there are enough end notes in it
that if somebody wants to drill down deeper,
they can certainly do that.
But the principal point of the book
was really to just kind of answer those first level questions
that people may have if they're just trying to figure out
where they are in the question that they have
and how that fits into where the vehicle is, frankly.
And that was kind of how we wanted to anchor it.
How does this fit into what the consumer might see
from the vehicle life cycle?
Yeah, you're right.
There's plenty of footnotes and end notes
to each chapter in this.
But Carl, you're a lawyer.
One of the things that so impressed me about this book
is it's highly readable.
You didn't degenerate into legalese as a lawyer.
How'd you avoid the temptation to do that?
Well, I'll be honest with you,
that's kind of one of the things that I pride myself on.
And Kevin is excellent at this too.
We spend most of our time in our professional lives
working with non-lawyers.
And a lot of what we are doing is,
I would say, to some degree translating.
We're taking these legal concepts,
these regulatory concepts,
and we're trying to turn it into plain English
to advise our clients, talk to our executives about, you know.
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Why we should do something or not do something
or what our options are or what the risks are.
And so over 25 years of practice,
both Kevin and I frankly have gotten pretty good at that,
we think.
And I think that's what you see in the writing.
Yes, it's very easy to write
a highly technical sort of legal memo.
It's very difficult to take a highly technical legal memo
and distill it into a page and a half of prose
that's intended to be readily understandable by anybody.
And yeah, it's frankly kind of fun to do that.
It's a little, you're writing at this level of detail
is not something we always do in the normal day-to-day course.
If you look up, if you Google Kevin, for example,
Kevin is a prolific author, he's written books and articles
on a myriad of legal topics
for a myriad of legal audiences.
Frankly, for Kevin, it's fun.
For me, it's fun too,
but I think it's a lot of fun for Kevin.
I'm not gonna call it bedtime reading,
but anybody can read this book and it's interesting.
I mean, it gets you engaged in all that.
So kudos to you guys on how y'all did that.
Well, John, it might be bedtime reading
depending on your interests, right?
I mean, depends on the chapter.
Kevin, let's give the audience a little bit of an example.
One thing that caught my attention
as I was going through it
is the difference between puffery and false advertising.
And you guys cited the example
of Ford using the claim built Ford tough
and they got sued over it.
So just give us a little bit of the background
between puffery and false advertising.
Sure, and this is the type of example
that comes out of the automotive industry.
And this is also a larger principle,
which is kind of interesting, John,
that you picked that one because there's many of them.
And these types of issues,
although you can find lots of automotive applications of it,
they have larger implications
for the overall legal community.
So in this particular example,
it really is indicative or illustrative
of the difference between a dealer saying
or a company saying what their opinion of a product is
versus what they're trying to stand behind
when it comes to an affirmation of a particular fact
of the quality or feature of a product.
And the law is very generous toward the former
as opposed to the latter.
In other words, you can give your opinion all the time
and say, hey, this is the best car
that I've ever got on my lot here.
You can take it for a spin at,
you'll love it, it's the greatest car ever.
And you're not gonna be held to account
for creating a warranty or a false representation.
But if you get a little more specific
and you drill down on that
and give something along the lines of say,
well, this vehicle went through 101 inspection
in the past every single one.
And here's the safety features that it does.
And then you can't deliver on that.
Well, that's moving out of puffery
and into types of descriptions and declarations of fact
that the law will kind of come down on you
if you can't deliver.
Yeah, and Carl, let me ask you this.
I mean, looking for an opinion or your thoughts on it,
you guys get into dealerships and the like.
Now we're seeing EV startups like Tesla
pulling an end run around the dealer franchise laws.
How do you think that's going to turn out?
I think, well, I think that's a big question
in terms of how that's gonna turn out.
Because frankly, it's really coming down
to becoming a political issue.
All states have statutes, franchise statutes
that protect the dealer franchise from the manufacturer.
And that has been the result of,
I would say, depending on your view
on historical bad conduct
where the dealers needed protection from the manufacturers
to protect their franchise.
And now you've got dealers who are very protective
of their franchise rights.
And you have, especially these new auto companies
that are looking at a way to, I would say,
have more control over, I would say, the consumer experience.
And so there's a tension.
And I mean, you saw that with the fights that Tesla's had
at various states throughout the country
to be able to market directly.
There's obviously news that comes out with Ford.
It has made some statements about how
the dealer relationships may change,
not necessarily go away.
So I think we're gonna have to see.
But from my perspective as the lawyer advising clients
who operate in that space,
I mean, these are issues that are very much at the forefront
and need to be taken into consideration all the time.
So they remain, they may be old laws,
but they remain very relevant,
which is something you can say about
a lot of the topics that we covered in the book.
Kevin, yeah, pick that up.
Here's Ford really wanting to change
the way it sells electric cars.
And it's got dealers deeply worried.
Ford says it's still going to use its dealers,
but where do you think this is going?
Well, we actually talk a little bit about this
in our book, John, on dealer franchise laws.
And one of the things that we also tried to do
was bring in an international perspective.
And in our discussion about dealer franchise laws
internationally, the experience of manufacturer owned
dealerships in Europe, as you may recall,
didn't bode so well when the manufacturers tried
to own and run dealers, principally because
that dealerships when they're run by manufacturer reps,
didn't produce as much entrepreneurship
as independently owned franchise dealers.
That was the experience that was in, I believe,
in the 90s, where there was some forays
into directly owned dealerships.
What we're talking about now is a little bit different,
because we're not talking about dealerships
owned by manufacturers, but rather manufacturers
selling directly without any dealership.
And so this is new territory.
And as Carl mentioned, this has turned
into a political issue, but I looked at it more
from the financial perspective of how this worked
in the past to see whether that made sense financially.
And when it came to manufacturers owning dealers,
financially, it didn't really work out well,
at least in Europe.
And so we're in new territory here, as Carl mentioned,
with a lot of the EV and new auto startups.
It just remains to be seen, frankly, over the long term,
whether that is the best viable model
for manufacturers or not.
It's still unclear.
You know, speaking of EVs,
there's also autonomous vehicles coming.
There's over-the-year updates.
You guys cite a number of future or new technologies
that are coming that are probably going to precipitate
even more laws.
Carl, are you gonna have to write a follow-up
to this book in a couple of years?
Quite possibly, quite possibly.
But I think what we are seeing from a legal
and in a particular regulatory perspective
on autonomous vehicles and EVs and things like that
is it's not so much new laws and regulations,
but the regulators are trying to take
the existing laws and regulations
and sort of expand the concepts
and adapt them to these newer applications.
And so my guess is you're not gonna see
major ground-breaking change,
but it'll be much more sort of incremental
and it'll be consistent with where we've been
kind of historically.
But it is very interesting because it does create,
automotive law and regulation
is very different than the laws and regulations
that apply to your traditional software company,
for example.
And that's also part of what we do with our clients
is as they're looking to enter into the automotive space
that they need to understand how highly regulated it is.
And that's surprising for some people, I would say.
Again, we've got the book and we can,
here you go, take a look at this,
this is the world that you're living in now.
John, there may be a need to combine automotive law
with aviation law if you think about flying cars, right?
Because if you really wanna look into the future
and if we think we're gonna have a Jetsons one day,
that's really where you've got a lot of legal maneuvering
to sort through when it comes to flying through airspace
and parking in airspace and parking in cities
and who's got rights to park the flying car
where they want to and so on.
We didn't touch on that in this book,
but that could be the follow-up.
Yeah, well, it sounds like you're setting up a battle
between the FAA and NHTSA.
Who's going to write the regulations for these things?
Right, right.
And of course, the states and the local ordinances
and all of that, they're all gonna have a say as well.
So you've got the federal, you've got the state,
you've got the local and probably one or two
of them are missing.
Yeah, it's extraordinary.
Carl, is the automotive industry
the most heavily regulated industry out there?
I don't know if I would say
it's necessarily the most heavily regulated,
but it is very heavily regulated.
I mean, if you think about it,
so this is an interesting thing about this,
I'm sort of a history buff, kind of a history nerd.
And so, looking at this whole situation
from a consumer perspective,
consumer protection perspective,
in the US, our consumer protection regulations
started showing up, laws and regulations
started showing up with state laws
and regulations around food.
And milk purity laws and things like that.
Then very quickly thereafter,
we ended up with a regulation
around drugs and pharmaceuticals.
Again, public safety.
And you've always had highly,
well, not always, but we have a highly regulated
financial services industry as well.
Again, all of this is coming out of situations
where there has been either macroeconomic harm
or significant harm to people.
And then as automotive automobiles became much more prevalent
in the early 20th century, they're dangerous.
They're expensive.
And we started seeing a lot of really
consumer protection legislation there.
So yeah, I think food, drugs, financial services,
automotive, healthcare,
any of these economic sectors
where there is a high risk of harm to people,
they're very highly regulated.
So yeah, it is a highly regulated industry.
Kevin, your thought, is it too regulated?
I mean, is this a burden or is it worth it
because it's protecting consumers?
It's good for lawyers, John.
But yeah, look, it is highly regulated.
Auto and auto finance are both highly regulated industries.
Are they the most regulated?
I don't know, but I'd certainly put it up there.
What's interesting, just as an anecdote
and Carl, the history buff will know this,
you may know this, John, in the late 50s and early 60s,
the House of Representatives and the US Senate
held hearings and had bills before them
that they didn't act on
that would have divested General Motors from GMAC
because there was so much concern and also
would have prohibited any automaker
from having a captive finance company.
And this goes back to the 50s.
And that shows you the concern
that at least the federal regulators had going way back.
And that's continued.
I mean, we've had a number of congressional hearings
over the years into all kinds of auto things,
not just related to auto and auto finance or anti-trust.
Think of the Ford Firestone, think of the Pinto hearings,
think of the Corvair hearings, think of,
I mean, on and on you can go.
So I would absolutely put auto and auto finance
certainly in the top industries that are highly regulated.
It'd be very interesting to find a dollar amount
that you could apply to all the laws and regulations.
It's gotta be a big number.
Well, we were talking earlier, right?
If there's 30,000 parts for the car,
I would say there's 30,000 laws applying to each car,
roughly speaking.
And I've never quantified what that would be,
it'd be a big, big number for sure.
Yeah, so as I said, the book is called Automotive Law 101
where can you find it?
What does it cost?
Carl, you wanna tackle that?
So it is out there on Amazon and I'll be honest with you,
I don't recall if Tom had what the list price of it is,
but it is available on Amazon.
Yeah, I think that's our privilege.
Yeah, also through the publisher,
Lawyers and Judges Publishing,
it's also directly available through the publisher as well.
And it's $73.
$73, I gotta tell you, that price might shock somebody
who was thinking about it.
But I gotta tell you, I am so glad I've got a copy
of this book because it's going to be
in a very valuable resource for me.
As I report on things, it's just so easily written,
it's well indexed, it's going to be easy for me
to find any topics.
But Kevin, what's next for you guys?
Like I said, are you contemplating the idea
of a second book or no?
No, I think we're looking at a different one
where we look at the biggest automotive legal cases
in the history of the automotive industry
and their impact, not just on the auto industry,
but in the legal history itself.
So what were some of the biggest cases to come out of auto
that have an impact across the board
and in all sectors of society?
That's kind of, I think, the next project.
Oh, that sounds fascinating.
So Carl, are you going to start with the Selden patent?
Wait a second.
Actually, that is one of my articles that I have a draft of.
And again, what we're trying to do here
is we're trying to do a similar sort of approach.
We're trying to make this very accessible
and sort of relevant to people.
I mean, each of these articles is, you know,
2000 words or so, so they're pretty short.
With pictures at this point.
Just so the audience knows, Selden is a guy
who patented the automobile back around
at the turn of the 20th century
and forced every automaker to pay him a royalty
on every vehicle that they made
until Henry Ford came around and said,
the heck with that, I'm not paying you a penny,
Selden sued and the way Ford was able to settle the suit
was he forced Selden to build his car
according to his patent and it didn't work.
I mean, I'm giving you the shorthand here, right?
And the judge threw it out of court.
Yeah, that's a very interesting case.
And we're real quick here.
I need a quick one, Antony.
Oh, it's just, it's an early case of sort of what they call
a non-practicing entity in the IP world.
So it's very important to patent law in the US as well.
Gotcha.
Can't wait till the next one comes out.
I think you guys have got a terrific topic there,
but Kevin McDonald, Carl Hockheimer,
thank you so much for coming on today's show.
Thank you for having us.
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of Canada in Detroit to produce this episode.
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