The big takeaways from The Autonomous Vehicle Safety Regulation World Congress centered on the importance of a federal scheme for AV regulation and the reality of the states’ interest in traditional issues such as traffic enforcement, product liability, and insurance coverage.  In keeping with those messages, the World Congress kicked off with NHTSA Deputy Administrator and Acting Director, Heidi King, speaking about NHTSA’s goals and interest followed almost immediately with wide participation from the states including California, Michigan, and Pennsylvania, among others.

Deputy Administrator King emphasized NHTSA’s desire to foster an environment of collaboration among all stakeholders, including the states.  Ms. King emphasized that safety remains the top priority at NHTSA.  NHTSA has provided some guidance, and looks forward to hearing from stakeholders about the best way to support and encourage growth in autonomous vehicles.  NHTSA wants to provide a flexible frame work to keep the door open for private sector innovation.  It is necessary to build public trust and confidence in the safety of autonomous vehicles, and that can only accomplished by all stakeholders working together.

NHTSA is working on the next version of AV guidance, having already issues its 2.0 version, with an expected release of 3.0 in 2018.  The guidelines will remain voluntary, but NHTSA is ready to support entities as they try to implement the voluntary guidance.  Working with the states, DOT, OEMs, and other stakeholders, NHTSA hopes to continue to be flexible and allow for rapid changes.  Later in the conference lawyers emphasized the importance of compliance with the guidance in minimizing liability particularly in no-fault states such as Michigan.

Dr. Bernard Soriano, deputy director, California Department of Motor Vehicles, similarly confirmed that California’s overarching interest in regulating AV is the safe operation of vehicles on its roadways.  In summarizing California’s recent October 11, 2017 release of revised regulations, he emphasized that “change happens fast,” and that the state is pleased to now be close to allowing completely driverless testing.  He recognized the federal preemption on the design of the vehicle and its crashworthiness and emphasized the state’s interest in the operation of the vehicles and compliance with state traffic laws.

Dr. Soriano indicated that since AV testing began in California there have been 44 crashes correlated to the number of cars on the road.  He noted that most of them had been minor, low speed events usually involving a car with a driver not anticipating the action of the AV which follows the traffic laws and “drives like a grandmother.”  Indeed, representatives from New York, Pennsylvania and Michigan agreed on the importance of driver training and emphasized the role of the manufacturer and dealer in offering that training and providing incentives for drivers to learn new systems.  As Kara Templeton, director, Bureau of Driver Licensing, Pennsylvania Department of Transportation, pointed out, the state DMVs do not train on cruise control or other features in the car. She also emphasized the need to train non- AV drivers on how to deal with AVs operating with them together on the roadways.

Catherine Curtis, the director of vehicle programs for the American Association of Motor Vehicle Administrators spoke about their work on the Jurisdictional Guidelines for the Safe Testing and Deployment of Highly Automated Vehicles which will propose a framework to ensure consistency among states on the implementation of regulations to encourage innovation and widespread distribution of safety technologies.  Importance of SAE terms as a universal definition for consistency ideas for manufacturers on system use and misuse, criminal activity and crash and incident reporting expected release in late February 2018.

On cybersecurity, the speakers made it clear that security issues cross all IT systems, well beyond cars, and that those issues must be addressed regardless of specific legislative activities at the state level.  The speakers repeatedly emphasized the need to follow best practices and encouraged white hat efforts to identify vulnerabilities and protect against attacks and other actions with malicious intent.

Panelists also recognized the importance of data and the need to define the ownership of black box information as well as images on cameras and other parameters being tracked by the vehicle.  Terrence J. McDonnell, staff sergeant, New York state police, acknowledged that in addition to the data in the vehicle, law enforcement generates its own data at the scene of any accident to emphasize the layers of data at issue in the AV world.

Lawyers predicted significant fights over the production of source code in future product liability cases over potential design defects and posed the question whether juries will be able to understand the complexities of a software design case. Others at the program predicted failure to warn claims would be the first wave of liability cases against manufacturers suggesting the importance of mitigating those risks by the creative use of technology to educate and warn drivers.  Other risk mitigation advice at the conference included:

  • Avoid the temptation to over tout the advantages of the AV technology in promotional activities to avoid misrepresentation claims;
  • Leverage the dealer network with incentives to educate drivers on the use of new technologies;
  • Consider the need to educate non-AV drivers as vehicles with varied amounts of AV functionality hit the roads together;

Many of the speakers over the two days conference agreed that the existing product liability framework can adequately address emerging high tech products.  For that reason, the speakers coalesced around advising businesses to assume the existing risk utility paradigm for product liability will remain and to design emerging products to meet those traditional tests.  That means thinking about whether there are reasonable alternative designs that are technically, economically and practically available and that will reliably enhance overall safety and be accepted by consumers.

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Photo of Cheryl A. Falvey Cheryl A. Falvey

Cheryl A. Falvey helps clients launch innovative new products while protecting their brand and reputation, avoiding and defending liability in the marketing of their products, building safety and security into their products with science-based risk assessment, and successfully navigating product safety challenges with…

Cheryl A. Falvey helps clients launch innovative new products while protecting their brand and reputation, avoiding and defending liability in the marketing of their products, building safety and security into their products with science-based risk assessment, and successfully navigating product safety challenges with rapid response.

An experienced trial lawyer, and a former general counsel of the United States Consumer Product Safety Commission (CPSC), Cheri defends class actions, unfair competition, product liability and other mass tort claims arising out of consumer, occupational, and environmental exposures. She also provides brand and consumer protection counseling services, with a focus on product safety and security, including the Internet of Things; privacy; anti-counterfeiting; and digital media. Cheri represents a wide range of clients, from emerging companies to multinational Fortune 500 conglomerates.

Cheri is widely recognized as a leader in her field. She is one of an elite group of attorneys to be ranked in Chambers USA, Band 1 for Product Liability: Regulatory. She is highly regarded for her considerable experience advising clients on regulatory issues, including risk assessments, product recalls and CPSC investigations.

She represents clients on litigation and counseling matters regarding:

  • Compliance with statutes and regulations enforced by the CPSC, FDA, NHTSA, and the FTC.
  • Handles product recalls conducted in cooperation with NHTSA, CPSC, and FDA, and defends clients in agency enforcement actions seeking civil and criminal penalties.
  • Advises manufacturers faced with the potential release of unfair and inaccurate information by the government.
  • Counsels and defends clients on the sale and marketing of consumer products on the Internet, including compliance with the Children’s Online Privacy Protection Act, the FTC’s Green Guides, and state and federal privacy laws.

Prior to joining Crowell & Moring, Cheri served as the general counsel of the CPSC. In that capacity, she oversaw all federal court litigation, including civil and criminal cases referred by the Commission to the Department of Justice. Her tenure at the CPSC included advising the agency on the implementation of the Consumer Product Safety Improvement Act, a sweeping change to its statutes that had an impact across diverse industry sectors.

Cheri serves as Vice -chair of the American Bar Association’s Consumer Products Regulation Committee, Administrative Law & Regulatory Practice Section. She was named to the National Law Journal’s 2014 list of Governance, Risk & Compliance Trailblazers & Pioneers. Prior to joining the CPSC, Cheri had over 20 years of private practice experience as a partner with another international law firm where she chaired the firm’s D.C. litigation practice. Cheri is also a former member of Crowell & Moring’s Management Board.

Photo of Chahira Solh Chahira Solh

Chahira Solh serves as a trusted advisor on antitrust issues for a number of the country’s most recognizable companies, including in the auto, aviation, health care, and defense industries. Her practice focuses on all aspects of antitrust law, including litigation and government enforcement

Chahira Solh serves as a trusted advisor on antitrust issues for a number of the country’s most recognizable companies, including in the auto, aviation, health care, and defense industries. Her practice focuses on all aspects of antitrust law, including litigation and government enforcement actions, joint venture analysis, merger control, and affirmative recovery opportunities.  By approaching transactional and compliance issues with the eye of a litigator, Chahira is able to provide comprehensive legal and business advice that anticipates issues and mitigates future legal or business risks.

As a litigator, Chahira defends clients in civil antitrust litigation ranging from “no-poach” agreements, to allegations of exclusive dealing and tying, to minimum advertised price policies, to price fixing. Chahira also advises clients on affirmative recovery strategies that enable companies to recoup monies owed to them due to the illegal acts of competitors or from overcharges by the government. Chahira helps clients devise litigation strategies that advance and protect both their commercial and legal interests.

Clients also turn to Chahira to provide strategic counsel on a variety of antitrust matters, including merger clearance, joint ventures, trade association law, the Robinson-Patman Act, and distribution and vertical issues, including pricing policies.

Chahira is the Chair of the firm’s Executive Committee and a member of the firm’s Management Board. She is active in many professional organizations, including serving on the board of the Association of Business Trial Lawyers – Orange County Chapter and the Public Law Center.  She has been recognized as a “Southern California Super Lawyer – Rising Star” in Antitrust Litigation since 2009. Chahira was selected for the 2016 Fellows Program of the Leadership Council on Legal Diversity (LCLD), a national organization comprised of the legal profession’s top general counsels and managing partners, and continues to be involved in the LCLD Alumni community.

Chahira earned her J.D. from Northwestern University School of Law, where she served as managing editor of the Journal of International Human Rights. While in law school, Chahira was selected to perform several internships at the Office of the Illinois Attorney General, Antitrust Bureau, the U.S. Department of Justice, Antitrust Division in Washington, D.C., and at the Federal Trade Commission, Consumer Protection Division in Chicago, Illinois. She received B.A.’s in both economics and history from the University of California, Los Angeles.