2022 Predictions for litigation, investigations, and enforcement actions influencing the automotive market

Morrison & Foerster’s Automotive Endeavor Pressure signifies automotive sector consumers in their most major authorized matters. With Litigation and Investigations legal professionals throughout offices in the United States, Europe, and Asia, we deliver holistic alternatives for compliance, inner investigation, civil litigation, and governing administration enforcement concerns about the world. We have achieved favorable success in a lot of prison and civil matters. As the automotive industry proceeds to develop into more tech-focused, we will keep on to leverage our deep knowledge in the know-how business to fulfill the wants of shoppers operating in this evolving place.

We have tapped our multidisciplinary Automotive Activity Pressure to get their views on what is most likely to transpire in conditions of litigation, investigations, and enforcement actions in the automotive sector in 2022. We hope these predictions will provoke conversations and thoughts on how to navigate the coming calendar year.

Haima Marlier on SEC Enforcement:

The U.S. Securities and Exchange Fee (SEC) less than the present administration has been hyper-centered on two areas that right have an impact on the automotive tech and transportation space: (1) the use of unique objective acquisition providers (SPACs) by startup and other businesses to go community and (2) environmental, social, and governance (ESG) and local weather adjust disclosures. SPACs have been especially active in the vehicle-tech and transportation place, significantly in electrification startups. The SEC has been scrutinizing disclosures of conflicts of interest that can come up in between SPAC insiders and general public shareholders, and will technique deSPAC disclosures like conventional original public featuring (IPO) disclosures. In December 2021, SEC was particularly lively in pursuing companies running in the automotive sphere which have long gone public by means of the use of SPACs, which involved subpoenaing an electric powered-car (EV) organization similar to revenue projections and statements and coming into into a US $125 million settlement with a zero emissions transportation technique supplier related to misleading statements to buyers. We anticipate to see this enforcement trend proceed into 2022. Turning to ESG and weather adjust disclosures, the SEC is conducting a massive-scale inquiry into whether general public companies, together with in the automotive room, are adhering to the agency’s 2010 local climate change disclosure advice, with a intention of updating that steering primarily based on its findings. ESG disclosures are also an SEC evaluation precedence for 2022. Ultimately, as with any disclosures, the SEC will target on regardless of whether ESG disclosures have content omissions or misstatements about local weather change and other challenges.

Brian Kidd on DOJ Enforcement:

With a renewed concentration on white collar and environmental crimes, the U.S. Department of Justice (DOJ), and its various felony and civil factors, will improve its aim on the automotive business. This will include the continuation of the styles of conditions we have witnessed in the recent past, which includes endeavours to manipulate emissions controls and defective or defective automotive areas. Together with people investigations, DOJ will probable enhance its awareness on the automotive industry’s function in climate adjust, and focus any failure to comply with the increased environmental polices that the Biden administration is most likely to place in put. In the EV space, this could translate into investigations into initiatives to manipulate documented EV ranges and other varieties of “greenwashing.” DOJ’s Overseas Corrupt Procedures Act (FCPA) Unit, Nationwide Stability Division, and Antitrust Division will also be on the lookout for transnational bribery scenarios, sanctions violations, and “no poach” agreements, as talked about beneath.

James Koukios on Anti-Bribery and Corruption Threat:

Even though EVs will likely mitigate local climate hazard, they pose a new type of chance for automakers: the threat that they will be asked to fork out bribes to receive the uncooked supplies made use of to ability EV battery cells. A common EV requires six periods the mineral inputs of a common car. Extractive industries have traditionally confronted large corruption threat, with one examine locating that one in five conditions of transnational bribery takes place in the extractive sector. There is no cause to imagine that extracting minerals these types of as cobalt and lithium, which are significant to EV battery functionality, will be any diverse. As a lot as 70 percent of the world’s cobalt offer is mined in the Democratic Republic of the Congo, which rated 170 out of the 180 countries and territories surveyed for their perceived public sector corruption by Transparency International (TI). Most lithium is at present developed in fewer corruption-inclined countries, this sort of as Australia (TI rank 11) and Chile (TI rank 25) but, as desire for lithium skyrockets, automakers could possibly come across on their own turning to larger threat countries such as Argentina (TI rank 78) or Zimbabwe (TI rank 157) for their provides. Bribery possibility is existing even if the automaker isn’t engaged in extracting the minerals itself. In an analogous circumstance, in December 2016, a Brazilian chemical firm fixed allegations with U.S. authorities that it had bribed Brazilian officials to get uncooked components for its goods from the country’s countrywide oil enterprise at a far more favorable value. Specifically as they turn to immediate output of EV batteries, automakers should revisit and update their 3rd-get together due diligence strategies and other compliance steps to mitigate corruption threat in their battery provide chains.

Brandon Van Grack on U.S. Sanctions and Export Controls:

U.S. sanctions and export controls focusing on China carry on to cripple the semiconductor market and the car suppliers that depend on it. Courting back again to the Obama administration, and achieving new heights in the Trump and Biden administrations, the national stability actions that have been imposed towards China have seriously restricted world wide entry to and growth of semiconductors. And whilst the pandemic has exacerbated this scarcity, and the Biden administration is pushing for enhanced investments and developments in U.S. semiconductor generation, the ongoing lack is the industry’s truth for the foreseeable long run. The U.S. government’s deployment of export controls, sanctions, and other nationwide security-associated tools targeting China will even further constrain the semiconductor business, even right after provide chain concerns connected to the pandemic are resolved.

Megan Gerking on Antitrust Enforcement:

The DOJ Antitrust Division continues to prioritize felony enforcement of anticompetitive carry out in labor markets, which include investigating and prosecuting “no poach,” or non-solicit, agreements between organizations that compete for labor. In October 2016, the FTC and DOJ introduced a adjust in policy to criminally demand businesses and executives that enter into standalone agreements not to employ or solicit workers from each individual other. Due to the fact that time, DOJ has opened many investigations and brought prison fees against firms and personal executives for allegedly entering these kinds of agreements with competition that effectively lower wages or divide the sector. The Biden administration has reiterated its continued priority of antitrust enforcement in labor marketplaces in its Govt Order on Advertising Opposition in the American Economic climate and by coverage statements and other community remarks by DOJ Antitrust Division management. Whilst the legal fees to date have been minimal to health care and engineering providers industries, no field is immune. And, in contrast to other competition violations, corporations do not have to have to compete in their sale of products and providers to be regarded as competition for workforce. The development is expanding—antitrust enforcers throughout jurisdictions are pursuing anticompetitive conduct in labor markets as a precedence.

Yuka Teraguchi on ITC Enforcement:

U.S. patent holders can file a criticism with the U.S. Global Trade Fee (ITC) to seek an exclusion buy directing U.S. Customs and Border Patrol to halt infringing products from moving into the United States and a cease and desist order versus the importers and U.S. sellers of the infringing items. In 2021, the ITC received 82 new problems, which was substantially increased than the yearly ordinary of 65 problems in 2016–2020. About 10 per cent of the grievances concerned products in the automotive, manufacturing, and transportation technology place and 25 p.c concerned laptop or computer and telecommunications merchandise, some of which are incorporated into vehicles. For case in point, the latest grievances accused specified built-in circuits for motor vehicle components, navigation programs, and automobile control techniques of patent infringement. As cars become extra geared up with computer and networking technologies, we assume the amount of ITC grievances in opposition to the automotive industry to raise. In individual, autonomous driving know-how is likely to implicate a new era of patent infringement allegations.

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