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Uncle Sam backs right-to-repair battle against Big Ag's John Deere
Doh, a Deere, I fear no Deere
The US Department of Justice on Tuesday asked an Illinois federal court not to dismiss antitrust litigation against agricultural equipment maker Deere & Company for allegedly trying to monopolize the repair of its products.
The case, filed June 1, 2022, represents a consolidation of six lawsuits against Deere & Company, maker of John Deere farm machinery – three from Illinois, and one each from Alabama, Oklahoma, and Tennessee.
The combined complaint alleges that Deere & Company and its affiliated dealerships have attempted to unlawfully control the repair of John Deere equipment, such as tractors and combines, using onboard computers known as electronic control units, or ECUs.
The ag giant and its dealerships, the complaint contends, monopolize and restrain the market for repair and maintenance services by designing John Deere equipment to require company-controlled software for the diagnosis of problems and for maintenance functions. This critical software is only available to authorized technicians, leaving independent repair shops and farmers unable to service John Deere equipment.
Deere & Company in response [PDF] to the complaint has largely denied the allegations.
The farm equipment maker, which did not immediately respond to a request for comment, filed a motion to have the complaints against it dismissed. It claims that it didn't deceive customers about its repair policies and that market competition for the sale of farm equipment negates Deere's control of the repair industry.
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The Justice Department in its statement of interest [PDF] opposes that motion, stating that Deere is wrong based on the Supreme Court 1992 decision Kodak Co. v. Image Technical Services, Inc. Essentially, the DoJ is saying that the law doesn't allow businesses to declare that product sale and repair markets are unrelated for purposes of antitrust law.
The DoJ filing spells out the rationale for supporting the right for product buyers to repair the goods they purchase.
Repair restrictions, the filing says, can harm the public and consumers in at least three ways. First, they can drive independent repair shops out of business, thereby reducing consumer choice. Second, they can delay repairs, which can cause harm in time-critical operations like farming. Third, they can raise costs and reduce quality.
"These repair restrictions can worsen the pressures that farmers increasingly face, the DoJ filing states. "For the past three decades, for instance, US agriculture has required growing investment in equipment – a substantial fixed cost that can be hard to defray. And since 2014, falling commodity and farmland prices have forced a historic uptick in family farmer bankruptcies nationwide."
The government statement shows that the Justice Department is taking the Biden Administration's July 9, 2021 Executive Order to promote competition seriously.
Faced with growing pressure from the right to repair movement, Deere & Company in January signed a Memorandum of Understanding with the American Farm Bureau Federation that "ensures farmers' and ranchers' right to repair their own farm equipment."
Right to repair advocates have expressed skepticism, however, because the deal is voluntary and contains no enforcement. The Public Interest Research Group's Right to Repair Campaign Director Kevin O’Reilly responded to the announcement by saying despite the agreement, legislation is still necessary to protect farmers.
Willie Cade, a board member of Repair.org, specializing in Agricultural Right to Repair, told The Register that he is glad to see the Justice Department supporting President Biden's Executive Order.
He added, "Deere is acting contrary to the Clean Air Act (CAA) requirements" that compel makers of vehicles and engines to make emission control diagnostic systems accessible for repairs and is "unfairly profiting from legally mandated emission control systems." ®