Describe the significance of, and developments in, the automotive industry in the market.
The US automotive industry is massive. The US auto market is the world’s second largest by number of vehicles produced. Over 250 million vehicles populate US roads.
New vehicle sales increased over seven straight years in the United States from 10.4 million vehicles in 2009, in the depth of the ‘Great Recession’, to 17.46 million in 2016 - the record for annual new vehicle sales. Total sales were approximately 17.13 million in 2017 and 17.21 million vehicles in 2018. Consumer preferences continued to shift from cars to crossovers, SUVs and pickups. Total industry volume (TIV) - the sum of vehicles sold in the US each year - is generally considered cyclical. Most analysts expect TIV to decrease in the next few years, but note consumers continue to shift their preferences to vehicle types that are more profitable.
Given the magnitude of the US automotive industry, it is obviously of significance to the US economy as a whole. The industry’s share of US GDP is often estimated to range between 3 and 3.5 per cent. Approximately 1.5 million people are directly employed in industry. Projections indicate that around 7.25 million US jobs - about 3.8 per cent of total private sector employment - are to some extent dependent on the auto industry.
The scale needed to cost-effectively produce vehicles is large and resource intensive. Major suppliers often locate facilities near to the manufacturing plants of original equipment manufacturers (OEMs) so manufacturing hubs of substantial size tend to develop. As a result, the industry is typically an economic engine for local and regional economies where major production plants locate.
The impact of the industry extends to nearly every community in the nation as a host of businesses are required to sell new and used vehicles and to maintain and fuel those vehicles already on the road.
What is the regulatory framework for manufacture and distribution of automobiles and automobile parts, such as homologation process as well as vehicle registration and insurance requirements?
In the US, new automobiles must be certified by the manufacturer to both emissions and safety standards.
Emissions certifications are granted by the US Environmental Protection Agency (EPA) on an annual basis for all models sold in a given model year. The emissions certification is based on an application submitted by the manufacturer to the EPA and supporting emissions test results generated by both the EPA and the manufacturer. The state of California has developed its own separate emissions certification and enforcement programme for new vehicles sold in the state of California, which requires the submission of a separate application and test results to the California Air Resources Board (CARB) for vehicles sold in California. In recent years, a number of states opted out of the EPA’s certification programme and now use the California certification programme, which historically has imposed more stringent emissions standards for certain pollutants. New automobiles can only be sold in the US after the receipt of Certificates of Conformity from the EPA or approving Executive Orders from CARB.
In the US, safety certification is done by the manufacturer through a ‘self-certification’ system. In this system, the National Highway Traffic Safety Administration (NHTSA) sets performance-based safety standards for a wide range of vehicle functions (from occupant crash protection to headlight performance), and manufacturers are required to self-certify, under penalty of law, that the vehicle meets all of the federal safety standards. Falsely certifying a vehicle subjects the manufacturer to substantial civil penalties and mandatory recalls at the manufacturer’s expense for any and all non-compliances with safety standards. In addition to self-certification to safety standards, manufacturers are required to recall vehicles at no cost to the customer where defects that cause an unreasonable risk to motor vehicle safety are identified by either the manufacturer or the NHTSA.
Development, manufacture and supply
How do automotive companies operating in your country generally structure their development, manufacture and supply issues? What are the usual contractual arrangements?
Globally and in the United States the commercial terms with respect to distribution and supply arrangements tend to vary depending on whether the transaction involves an OEM or aftermarket customer.
For OEMs, products are supplied through purchase orders which are governed by general terms and conditions established by an OEM. Typically, the commercial arrangements contemplate that the OEMs place orders for specific components supplied for particular vehicles over the life of a vehicle, but do not include minimum purchase quantities. Prices are negotiated with respect to each vehicle, but may be subject to adjustment for various reasons including commodity or foreign exchange escalation or de-escalation clauses and cost reductions achieved because of productivity improvements. Individual purchase orders are terminable for cause or non-performance and, in most cases, upon the supplier’s insolvency and certain change of control events.
Suppliers manufacture and ship based on OEM customer release schedules, normally provided on a weekly basis, subject to variance based on cyclical automobile production or dealer inventory levels. Suppliers generally ship directly from a manufacturing location to the customer for use in vehicle production and assembly.
How are vehicles usually distributed? Are there any special rules for importers, distributors, dealers (including dealer networks) or other distribution partners? How do automotive companies normally resolve restructuring or termination issues with their distribution partners?
The US legal environment is a challenging one for manufacturers and distributors. The distribution of motor vehicles is principally governed by 50 different state franchise protection statutes. With a few exceptions, those state statutes restrict or prohibit OEMs from selling vehicles directly to retail consumers. Consequently, vehicles are generally distributed to retail customers by independent dealers. While, as noted, the relationship between OEMs and their dealers is governed by statutes that vary from state to state, those statutes include a number of common elements. Chief among them are these:
- The statutes are intended to redress an alleged ‘imbalance in bargaining power’ between ‘large’ manufacturers and ‘small’ retail dealers. As a result, each statute offers significant protection to the latter as against the former.
- Initially the principal form of protection was against ‘unreasonable’ terminations and various forms of manufacturer ‘coercion’ (eg, against requiring dealers to accept product not ordered and not wanted).
- Most statutes were amended multiple times over the years to add a host of additional protections and requirements. Among these include protections against ‘unreasonable’ refusals to recognise proposed transfers; restrictions on ‘add-points’ (ie, the addition of new dealer locations); regulations governing incentive programmes; regulations governing certain kinds of facility standards (eg, chiefly restrictions on the ability of manufacturers to insist that dealers sell exclusively one make of vehicle from a dealership location); mandates that franchisors pay ‘retail’ rates and prices for labour and parts used in warranty repairs; protection against unfair allocation of products; and restrictions on a franchisor’s right to modify its standard form of dealer agreement.
- In addition to passing laws that are highly favourable to franchisees, many states have special administrative agencies (‘dealer boards’) to enforce the statutes and to hear and decide disputes between manufacturers and dealers.
Mergers, acquisitions and joint ventures
Are there any particularities for M&A or JV transactions that companies should consider when preparing, negotiating or entering into a deal in the automotive industry?
Because of the highly regulated nature of the US automotive industry, any participants must carefully analyse both national, state and local legal requirements as strategic plans are developed. While traditional automotive M&A and JV transactions involve due diligence and structuring issues with respect to competition, safety and environmental matters, the advent of electric and autonomous vehicles and technologies has resulted in new and expanded regulatory and business frameworks.
While emerging technologies and evolving business models provide new dealmaking opportunities, these disruptive forces add additional complexities given the uncertain long-term potential developments. This phenomenon is especially true in the US given a regulatory regime developed over many decades.
As an example of the evolving regulatory environment, government-mandated fuel economy and emission standards will become increasingly stringent in the coming years. Consequently, from a transaction perspective, potential buyers must develop a sophisticated understanding (and diligence) of a target’s corporate average fuel economy (CAFE) and emissions compliance plans.
In recent years, automotive M&A in the US has been active with particular strength among suppliers and distributors of parts and equipment. While these deals require diligence and analysis in all of the customary M&A areas, the automotive industry tends to require special attention with regard to intellectual property, labour relations and potential product and environmental liabilities.
Incentives and barriers to entry
Are there any incentives for investment in the automotive market? Are there barriers to entry into the market? What impact may new entrants into the market have on incumbents?
There are no significant incentives targeted specifically at investment in the US auto market beyond various federal incentives for production of alternative fuel vehicles or the infrastructure to support them. For example, purchasers of electric vehicles currently may receive a tax credit of up to US$7,500 depending on the energy density of the battery. While this incentive flows to the consumer, it is essentially a pricing aid to manufacturers of qualifying vehicles to encourage the production of electric vehicles. Each manufacturer may utilise 200,000 of these credits. Some manufacturers have met those limits or soon will. Once that limit is surpassed, the sum of the credit reduces through a transition period before ending. There are legislative efforts in place both to revise the program to extend the number of credits available and to end the entire program completely. State governments in some cases may add additional incentives.
Various federal and state incentive programmes are in place that a manufacturer may take advantage of, but are not focused exclusively at the auto industry. For instance, those building manufacturing facilities may develop competition among states and local governments regarding the incentives offered to encourage building a plant in a given location.
Material practical barriers remain in effect for new OEMs entering the US auto market. Automobiles are highly regulated goods. The emission and safety rules are complex and challenging (see questions 2 and 7). State statutes effectively prohibit manufacturers from selling directly to retail customers, so building a network of dealers adds additional complexity in entering the market (see question 4).
The most significant barriers to entering the US market are the depth and competitiveness of the market. While entering the US market requires careful planning and compliance with complex rules, staying in the market is even more challenging. A successful new OEM requires the resources to build a brand with a good reputation, as well as cars that capture the public’s imagination and the praise of specialised reviewers. Those cars must remain serviceable over time and maintain value in the used market. A solid distribution network is crucial for success, as well as a good media team with a large budget to advertise the vehicles. Given the competitiveness of the market, profit margins can be small. A new entrant will need sufficient financial resources and resolve to stick with the investment when positive returns are unlikely for several years.
The most likely opportunity for new entrants in the US market comes from the prospect of autonomous-drive vehicles. Large and well-known technology companies with significant access to capital and established brand names continue to explore these new markets in addition to a host of companies interested in developing novel technology and production capacity.
Product safety and liability
Safety and environmental
What are the most relevant automotive-related product compliance safety and environmental regulations, and how are they enforced? Are there specific rules for product recalls?
The EPA and CARB have comprehensive regulations for automobiles. Since the 1970s, the EPA has established mandatory emissions standards for ‘criteria pollutants’ (eg, NOx, PM, CO, HC) that have become progressively more stringent. Since the 1980s, the NHTSA has enforced fleet-wide standards for fuel economy. More recently, the EPA and CARB started to regulate greenhouse gases through progressively more rigorous mandatory fleet-wide standards. In addition, California has established a zero emissions vehicle programme requiring manufactures’ annual sales to include a certain fraction of electric or hybrid vehicles.
The NHTSA maintains more than 70 federal motor vehicle safety standards covering the full range of safety-relevant vehicle performance parameters, from occupant protection to headlight illumination levels. Following the Ford-Firestone tyre safety crisis in the US, the NHTSA also developed mandatory reporting requirements for potentially relevant safety information from in-use vehicles both in the US and in foreign markets (pursuant to the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act enacted in 2000). The TREAD requirements require manufacturers to actively monitor warranty claims, customer complaints, death and injury claims, property damage claims, field reports and service measures, and report relevant data to the NHTSA on a periodic basis. The NHTSA has aggressively ramped up enforcement of all of its regulations and requirements in recent years, following major safety issues by a number of manufacturers. The NHTSA has collected hundreds of millions of dollars in civil penalties for a wide variety of violations, including failure to recall safety defective vehicles and failure to comply with TREAD reporting requirements.
Product liability and recall
Describe the significance of product liability law, and any key issues specifically relevant to the automotive industry. How relevant are class actions or other consumer litigation in product liability, product recall cases, or other contexts relating to the automotive industry?
Product liability and class action litigation play a significant role in the US automotive market. Each year, consumers file numerous individual product liability lawsuits alleging that purported automotive defects resulted in bodily injury, injury, death or other damages. Consumers have also filed an increasing number of individual lawsuits seeking reimbursement for certain repair costs. (These are often referred to as ‘lemon law’ cases.) Consumers also file numerous class actions alleging that purported automotive defects (or alleged unfair business practices) resulted in economic damages, such as unreimbursed repair costs.
In some of these class actions, the consumer filing suit will not have incurred any repair costs or experienced the alleged vehicle malfunction. This type of class action is frequently referred to as a ‘no injury’ class action. In such class actions, a consumer frequently alleges that the automotive company concealed a supposed defect in the vehicle or its components and that, as a result, the consumer either paid more to purchase or lease the vehicle than intended or will recoup a lesser amount than expected upon resale. (This is also frequently referred to as a diminution in value claim.) Generally, a class action cannot be premised on the basis of bodily injury as there would be too many individual variations in class member claims.
A few trends are apparent in automotive companies’ efforts to defend against individual and class action product liability claims. First, when facing class action allegations that a particular component is supposedly ‘susceptible’ to malfunction (but has not yet actually malfunctioned), automotive companies have argued that consumers have no standing to litigate, either individually or as part of a class action, because they have not in fact been injured. Second, a recent US Supreme Court decision has admonished courts to scrutinise the basis for personal jurisdiction in each case. In limited circumstances, this decision permits automotive companies to argue that courts have no authority to exercise personal jurisdiction over them. Third, automotive companies have investigated strategies for diverting consumer claims from the US court system to arbitration, which can often be a more efficient mechanism for resolving disputes. However, thus far, automotive companies have enjoyed only limited success in compelling the arbitration of claims by vehicle purchasers against automotive companies.
The advancement of autonomous vehicle technology also has implications for US litigation, including potentially reapportioning the liability of certain actors and the burdens of proof associated with particular claims. However, until new legislative and regulatory frameworks to address autonomous vehicles are developed, consumers likely will continue to rely on traditional common law and statutory claims in lawsuits involving autonomous vehicles.
What competition and antitrust issues are specific to, or particularly relevant for, the automotive industry? Is follow-on litigation significant in competition cases?
While no special competition laws apply exclusively to the automobile industry, antitrust issues are pervasive in the automotive sector. First, the Hart-Scott-Rodino Antitrust Improvements Act, 15 USC section 18a, requires the parties to certain mergers, asset acquisitions and joint ventures to notify government enforcement agencies before closing. If notification is necessary, then the parties may not close the transaction until the statutory waiting periods expire.
Second, automotive sector companies must comply with generally applicable antitrust laws. The Sherman Act prohibits agreements among two or more entities that unreasonably restrain trade and certain unilateral conduct permitting a firm to obtain or maintain monopoly power or threatening to allow a firm to do so. In particular, the Sherman Act flatly prohibits agreements between or among competitors to fix prices, rig bids, allocate customers or territories, and boycott suppliers, customers or competitors. Other agreements are judged under a fact-bound inquiry into their competitive effects. Under that analysis, if, on balance, the anticompetitive effects of an agreement outweigh its pro-competitive benefits, the agreement is unlawful.
In addition, the Robinson-Patman Act prohibits differential pricing of commodities, and many states have special statutes protecting automobile dealers.
In the US, antitrust violations carry both criminal and civil penalties. In addition, private parties injured by antitrust violations may recover triple their actual damages and obtain injunctions against future violations. An active plaintiffs’ bar regularly brings private actions. Antitrust actions are common in the automotive industry. For the last several years, the US Department of Justice has conducted a massive investigation into price fixing and bid rigging in the automotive parts industry. A number of companies have pleaded guilty to criminal violations and received substantial fines. Individuals have also pleaded guilty and received prison sentences. Those investigations have also spawned substantial private civil litigation by automobile dealers and consumers.
Dispute resolution mechanisms
What kind of disputes have been experienced in the automotive industry, and how are they usually resolved? Are there any quick solutions along the supply chain available?
OEMs rarely have disputes with each other. Consequently, litigation among OEMs is rare.
Disputes are more likely along the extended supply chain in the auto sector. Even there, however, litigation between an OEM and a supplier is relatively rare. The nature of the economic relationship between the parties means disagreements are worked out through other methods of dispute resolution.
Disputes regarding intellectual property are a somewhat different situation. See question 12.
What is the process for dealing with distressed suppliers in the automotive industry?
A distressed supplier can cause significant disruption in a complex, just-in-time inventory system. OEMs regularly examine the financial health of a prospective supplier, but an OEM that fails to continue to monitor a supplier, its competitors or trends in its sector or region does so at its peril. A cause of distress may arise from within a supplier (eg, lessening quality control, financial mismanagement or operational missteps such as failed acquisitions), from sources close to the supplier (eg, a defaulting upstream provider of raw materials, a lender that will not renew or extend a line of credit), or from distant but market-wide influences (eg, government regulation, weather, technological change).
Ideally, an OEM will identify the distressed supplier before the first delivery is missed or the supplier asks for payment in advance to cover a lack of operating funds.
Two questions follow quickly: how long before the supplier’s distress affects the OEM, and whether the supplier has the talent, ability, cash and time to cure the distress before that impact. These factors will inform an OEM’s decision on whether to work closely with and monitor the supplier as it addresses the problem or to move more aggressively to replace the supplier. OEMs have explored the full range of options including replacement of the distressed supplier, financial and operational support for the supplier and its management, similar support for new management of the supplier where appropriate and, sometimes, acquisition of the supplier. The last option would not necessarily solve the source of distressed operations, but would put the OEM in a stronger position to assess the cause and fix the problem.
An OEM may find that an acquisition of a distressed supplier is best accomplished within a formal insolvency proceeding where the transaction is approved by a court and the chances of a post-closing challenge to the transaction terms are greatly diminished or eliminated entirely.
Intellectual property disputes
Are intellectual property disputes significant in the automotive industry? If so, how effectively is industrial intellectual property protected? Are intellectual property disputes easily resolved?
Intellectual property disputes, and in particular patent infringement actions, remain a significant issue in the automotive industry. Over the last several years there have been hundreds of automotive-related patent litigation cases, filed in US district courts and the International Trade Commission. Most of these suits have been filed by non-practising entities (NPEs), often against multiple OEMs. This patent litigation is trending toward global disputes with high risk.
These patent cases against automotive companies, however, typically do not focus on purely vehicle-related technologies, but rather on aspects of the infotainment, navigation, autonomous vehicle and connected car technologies incorporated into the vehicles. This is expected to continue into the near future, and there is a clear trend towards disputes involving standard-essential patents (SEPs), particularly in the connected car space. Connected cars will need to rely on existing infrastructure owned by telecommunication entities and others to access the internet, communicate with other devices, receive traffic information, provide in-vehicle entertainment, and enable remote control of vehicle systems via smartphones (eg, climate control, opening a convertible roof). Using the existing telecom infrastructure, however, requires using certain protocols, procedures and data formats that are subject to industry standards set by standard-setting organisations whose members are telecom companies, national administrations, universities and research groups. Existing patents that cover these standards, such as LTE, UMTS, GSM, GPRS and WLAN, are referred to as SEPs. The owners of these SEPs are often the telecom or chip companies, although NPEs (including Nokia and Ericsson) are obtaining an increasing share. They are even forming patent pools together (eg, Avanci), to attempt to license large patent portfolios relating to telecom standards. As vehicles implement more connected car technologies, including in 5G, the owners of SEPs in this space will continue their licensing campaigns and will file litigations against automotive makers and suppliers when those licensing negotiations fail. These litigations will likely be on a global level and carry significant risk.
Resolution of intellectual property disputes varies, and may depend on whether the plaintiff is an NPE or an automotive company or supplier. When the plaintiff is an NPE or SEP holder, it is more likely that the dispute may be resolved for a license fee, although the threat of an injunction still looms in jurisdictions like Germany and the International Trade Commission, to create leverage in licensing pricing. Resolution of automotive patent litigation (and the amount and nature of such litigation) has also been impacted by inter partes review (IPR) proceedings filed by defendants in the US Patent and Trademark Office to challenge the validity of patents asserted in litigation. Defendants are having success invalidating patents, or forcing the patent owners to settle or drop lawsuits, by filing or threatening to file IPRs, and the trend of filing IPRs in response to most patent lawsuits is expected to continue, although perhaps not with the fever it did several years ago given the current administration’s propensity to enhance the protection and enforceability of patents.
Trade unions and work councils
Are there specific employment issues that automotive companies should be aware of, such as with trade unions and works councils?
Any company interested in getting a deal done in the automotive industry must understand both US labour law and the state of labour relations in the industry.
US law does not provide for works councils and in fact severely discourages their existence by making dealing with employee groups that do not represent a majority of the employer’s employees unlawful except for very limited purposes. Thus, works councils as formulated in Europe are non-existent. The way unions come to represent employees in the US is to demonstrate majority support among a group of employees, usually through a secret ballot election conducted by the National Labor Relations Board, a federal government agency responsible for regulating labour relations.
Union movement has become increasingly weak in the US and many observers believe it likely will become even weaker. Nevertheless, in the US auto industry it has somewhat greater strength. The United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is the union that has traditionally represented automotive workers. It has been very strong in the Midwest, representing workers at Ford, GM and Fiat Chrysler (the Detroit Three) for decades, as well as a number of their suppliers. But it has struggled in the US South, where it has been unable to organise the foreign transplant OEMs except for a small group of Volkswagen employees (even that representation is under challenge).
An employer making a major investment, particularly a controlling interest, in an automotive manufacturer or supplier in the US must consider dealing with a number of key questions:
- is the target unionised;
- if so, is there a collective bargaining agreement in place;
- does that collective bargaining agreement obligate the target to require a purchaser to assume the collective bargaining agreement; and finally
- is the transaction structured as an asset or stock deal?
If an acquirer purchases the majority of the stock of a corporation, the corporation remains subject to the terms of the collective bargaining agreement. If it simply purchases the assets, it will have to bargain with the union if a majority of the employees it employs come from the predecessor target. (The purchaser is not bound by law to hire the employees of a unionised target, but if it does not hire those employees because of their union affiliation, this would be an unfair labour practice.) Even if it hires the unionised work force, the law requires the acquirer only to bargain with the union; it is not required to assume the collective bargaining agreement. However, many collective bargaining agreements require the employer signatory for a business to oblige an acquirer to assume the contract. If so, the seller will likely require contract assumption; otherwise it faces a damage claim by the union and the possibility of the sale being enjoined altogether. The bottom line is that a company considering buying a unionised operation must undertake careful due diligence. Issues to consider include whether the target is unionised, what kind of relations it has with the union, what are the provisions of the collective bargaining agreement, and whether it is possible to operate successfully under the agreement and whether it will it be required to assume the collective bargaining agreement. Mistakes can result in expensive litigation and strikes.
A major investment in a unionised OEM would be particularly complex. The UAW would carefully scrutinise a major investor and if it concluded that the investor would jeopardise its relationship with the OEM or have a negative impact in any way, the UAW would likely engage in significant efforts to block the deal. Again, a buyer should not consider such an investment without the most scrupulous due diligence and without a full understanding of the impact of the union.
What are the most important legal developments relating to automotive technological and mobility advances?
The most important legal developments all revolve around the vast amount of technology coming into vehicles. Connectivity and accident avoidance technologies have made the prospect of driverless cars a matter of extensive research and development not only by incumbent OEMs, but also by large global technology companies. These developments extend throughout an evolving supply chain.
Significant legal questions are developing around safety regulation. Safety rules are traditionally oriented around crash survivability but cars in the future will seek to avoid accidents. Safety rules also mandate certain structures such as mirrors that may be replaced by screens or a steering wheel and brake pedal that would obviously not be needed were the vehicle entirely autonomously driven. A host of rules will need re-evaluation as technology increasingly enters vehicles. The injection of advanced technology will also reshape the intellectual foundation for safety rules and lead to extensive changes over time.
The US Department of Transportation (DOT) indicates it wants to facilitate these new developments and not over-regulate the industry in a way that inhibits development while still fostering safety. Guidelines issued by the Obama administration in September 2016 attempted to strike a balance between safety and technological development in a manner to encourage development and foster different solution pathways. The Trump administration issued in September 2017 its revision of these guidelines: Vision for Safety 2.0. These guidelines make it clear the safety assessments are ‘voluntary assessments’ that do not have to be submitted. Nevertheless, DoT officials note they have extensive authority to address safety concerns and have stated that if those testing autonomous vehicles do not submit their assessments, the DoT will ultimately revise the guides in a more restrictive fashion. In October 2018, the Trump administration’s Department of Transportation issued, ‘Preparing for the Future of Transportation: Automated Vehicles 3.0’ (AV 3.0). This document further updated the Administration’s policy guidance and takes a multi-modal approach (applies not just to cars but to other modes of ‘surface transportation’). In general, AV 3.0 is seen as affirming the desire to use existing authority to advance and enable the technological development of the transportation sector. AV 3.0 provided updates on various initiatives related to autonomous vehicles and outlined a rulemaking agenda.
With vehicles generating increasing amounts of data coupled with connectivity, privacy issues are of paramount concern. Automakers have issued a series of self-regulating guidelines to follow for the protection of consumer interests in privacy. Policymakers remain keenly interested in this area and closely monitor how these guidelines function.
The extensive use of computer code in vehicles (estimates indicate modern vehicles already have over 100 million lines of code) and connectivity dictate that vehicle cyber resilience is a significant concern. The DOT recently issued guidelines in this area as well.
Fuel economy and vehicle emissions are aggressively regulated. The current regulatory structure, the One National Program, extends to Model Year 2025. A statutorily mandated ‘mid-term review’ is currently in process to determine whether the standards defined should be maintained or modified.