When the fatal car crash involving a Tesla Model S sedan made headlines last fall, we posted about the accident and predicted that government authorities would classify the crash as being caused by driver error rather than an issue with the “Autopilot” system.

Our prediction turned out to be correct.  The National Highway Traffic Safety Administration (NHTSA) was still investigating the incident when we first posted about it, but on January 19, NHTSA closed its preliminary evaluation, which found that driver error was responsible.

Still, the performance of Automated Driver Assistance Systems, or ADAS, is an area of intense regulatory interest, and it was therefore not surprising to see NHTSA’s Office of Defect Investigation deploy a special crash investigations team to reconstruct the accident.

Several news reports have characterized NHTSA as having “exonerated” or “cleared” Tesla of any wrongdoing in connection with the crash. Officially, NHTSA merely closed the investigation, noting that it reached no conclusion about whether a defect existed and retained its right to reopen the investigation later.

That said, NHTSA was clearly satisfied with the performance of Tesla’s ADAS system during the crash, which allowed the agency to close its investigation.
Continue Reading Truly Exonerated? NHTSA’s Tesla Autopilot Investigation

Last week, the US Supreme Court ruled that an offer of judgment under Federal Rule of Civil Procedure 68 made to the lead plaintiff in a class action lawsuit, in addition to a separate free-standing settlement offer in the same amount, does not render the lawsuit moot.

In Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 WL 228345 (U.S. Jan. 20, 2016), Jose Gomez filed a class-action lawsuit seeking damages under the Telephone Consumer Protection Act as a result of unwanted text messages he and others received from Campbell-Ewald Company.  Before Gomez had filed his motion for class certification, Campbell made an offer of judgment to him under Federal Rule of Civil Procedure 68 which would have satisfied his personal claim entirely.  Gomez allowed this offer to lapse after 14 days, as specified by the rule.  Campbell then moved to dismiss the case, claiming that no controversy remained after its offer provided Gomez with complete relief.  Both the District Court and the Ninth Circuit Court of Appeals disagreed with Campbell.
Continue Reading Supreme Court Says Offering to Settle Cannot Moot Class Action Suits

On Thursday, January 22, 2015, Transportation Secretary Anthony Foxx announced that the National Highway Traffic Safety Administration plans to change its safety ratings program for passenger vehicles by adding two automatic emergency braking systems to the agency’s recommended advanced safety features. NHTSA’s New Car Assessment Program currently awards up to five stars to vehicles based on safety features.  Under the proposed change, the two automatic emergency braking systems – crash imminent braking (CIB) and dynamic brake support (DBS) – would be considered by NHTSA when deciding a vehicle’s safety rating.  The proposed change to NHTSA’s safety ratings program is currently in a 60-day public comment period.
Continue Reading NHTSA To Change Safety Rating Program

A putative class action plaintiff’s affidavit  claiming that they qualify to be a class member may not be sufficient in many cases going forward.  This “self-selection” of class members is coming under fire from more federal courts.  A growing trend suggests that courts have started taking a harder look at how class membership is defined under Rule of Civil Procedure 23, and demanding that named plaintiffs show that the proposed class is ascertainable when there is no reasonably objective means of determining class membership – i.e. no receipts or business records establishing proof of purchase in consumer product class action.

Ascertainability requires an administratively feasible means of identifying class membership using objective criteria.
Continue Reading Self-Selection of Lawsuit Class Members Coming Under Fire