Justice Department sides with farmers in right-to-repair case

The conflict over right-to-repair is heating up. On Feb. 13, the Department of Justice sided with farmers against farm-equipment maker John Deere in a “statement of interest” it filed in an antitrust lawsuit being filed against the agricultural equipment maker by Forest River Farms and 15 others.

The class action suit was originally filed on Jan. 12, 2020, by Forest River Farms, Forest River, North Dakota, owned by Robert Blair. His suit was later joined by farmers in Tennessee, Oklahoma, and Alabama. The suits were consolidated at the request of John Deere. All the plaintiffs claim that John Deere’s policies on the repairing of its equipment violate the Sherman Antitrust Act and seek damages for farmers who paid for repairs from John Deere dealers beginning on Jan. 12, 2018, to the present.

On Jan. 24 of this year, John Deere asked Judge Iain D. Johnston to rule in its favor. John Deere argues that despite controlling 53% of the agricultural tractor market, it does not enjoy monopoly power because customers can buy other brands of equipment. The plaintiffs responded, and it was to that response that the DOJ added its 22-page statement of interest—“forcefully” refuting John Deere’s interpretation of antitrust law, according to “Vice” magazine. The complete article is available at bit.ly/3S7cCVN.

Right-to-repair concerns the aftermarket, or repair services, once a piece of equipment has been bought. The issue is broader than farm equipment since most advanced technology today includes microchips. The Biden administration has already indicated its desire to side with those advocating a right to repair. Biden issued an executive order in July 2021 directing the Federal Trade Commission to loosen rules by manufacturers limiting consumers’ ability to repair appliances.

Statements of interest are amicus opinions filed by a federal agency that are not binding on the judge but can be very influential in shaping the outcome of a case nevertheless because they state the interest of the government—that is, the American people. A 2017 article in Harvard Civil-Rights Liberties Law Review by Victor Zapana noted, “Among the most powerful—and least examined—tools in civil rights litigation is the statement of interest,” and the paper’s abstract notes, “The federal government recently has ramped up its use of statements of interest—amicus filings that are filed in federal and state trial courts across the country. Filing such briefs has become a key litigation strategy for federal civil rights enforcement.” The complete article is available at bit.ly/3KduFHO.

John Deere signs MOU with AFBF

How concerned is John Deere about the lawsuit and the 11 states considering right-to-repair bills? The company has been seeking a solution outside of court. On Jan. 8, John Deere executives signed a memorandum of understanding with Zippy Duvall, president of the American Farm Bureau Federation, that it says gives farmers more leeway in repairing their equipment. The MOU gives farmers and third-party mechanics the ability to pay for subscriptions or access to Deere diagnostic tools and product guides needed to make repairs.

In return, Duvall committed to asking state branches of the American Farm Bureau to refrain from "introducing, promoting, or supporting federal or state ‘Right to Repair’ legislation" that goes beyond what is outlined in the MOU.

Colorado right-to-repair bill debated

Meanwhile, state associations of equipment dealers are busy opposing the right to repair bills. The associations argue that they give access to manufacturers’ intellectual property and could allow the reprogramming of controllers, which can lead to illegal tampering.

Colorado lawmakers are currently considering House Bill 23-1011, which "requires manufacturers to provide parts, embedded software, firmware, tools, diagnostics information, maintenance documents, repair manuals and more to owners of farm and ranch equipment or repair service providers to allow them to perform work on their equipment," according to a Feb. 6 article from Denver 7 that is available at bit.ly/3lG04Zt.

One equipment dealer testifying against the Colorado bill, as reported by farm-equipment.com, argues that a right to repair could lead to resetting of horsepower and speed limits, or defeating emissions control settings.

David Murray can be reached at [email protected].