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Volume XIII, Number 38


February 07, 2023

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February 06, 2023

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Vehicle Hacking Class Action Runs Out of Gas in Illinois Court

In a decision likely to bring comfort to the manufacturers of vehicle automation technology, the court in Flynn v. FCA US LLC, No. 15-cv-855-SMY, 2020 WL 1492687 (S.D. Ill. Mar. 27, 2020) granted the defendants’ motion to dismiss. The court ruled that the plaintiffs’ class-action claims of vehicle vulnerability to hacking were too hypothetical to provide standing. The case was dismissed by an Illinois federal district court for lack of jurisdiction on March 27, 2020. The plaintiffs have since appealed the case to the Seventh Circuit, which was recently set for oral argument on October 27, 2020. As of August 10, the appeal is fully briefed. Flynn v. FCA US LLC is one of the first court rulings that could have an impact on autonomous vehicle (AV) development and liability.

The plaintiffs sought damages based on vulnerabilities in Chrysler vehicles that could have allowed hackers to access both critical and non-critical vehicle systems. Although none of the vehicles were actually hacked outside of a controlled environment, the plaintiffs alleged that the vehicles were defective in that (1) the infotainment system was “exceedingly hackable”; (2) the vehicle’s computer system failed to prevent hackers from remotely taking control of the vehicle; and (3) the infotainment system and the vehicles lacked the capability to download software patches that were critical for protecting the vehicles.

In 2016, the court denied a prior motion to dismiss because the plaintiffs had alleged sufficient facts to establish standing. In 2018, the court granted the plaintiffs’ motion for class certification, a decision which the Supreme Court declined to review. 

After the close of discovery following class certification, the defendants filed a motion to dismiss for lack of jurisdiction, which led to the court’s recent decision. The court determined that a reexamination of the defendants’ standing arguments was warranted, stating that “Article III standing requires that the plaintiff suffered an injury in fact […] which is concrete and particularized and actual or imminent – not conjectural or hypothetical.” Id. at *7.

The court noted that it was unclear whether the infotainment system was defective at all. “The mere fact that a product has a vulnerability does not in itself, mean the product is defective.” Id. at *11. Recognizing that any product can be made safer or better, the court held that a future risk of hacking is too speculative and that allegations of economic loss stemming from speculative risk of future harm cannot establish standing. The court further found that there was no demonstrable effect on the market for the plaintiffs’ vehicles, and as such, the plaintiffs had not suffered any injury in fact.

Although this case was disposed of on standing grounds, it is a win for those in favor of greater vehicle automation. Manufacturers do not have to account for wholly hypothetical risks. However, manufacturers must continue to establish and employ best practices for vehicle cybersecurity. They should examine the practices of their suppliers and service providers to avoid cybersecurity risks, and work with their dealers to review agreements with car buyers to cover similar potential litigation.

We will watch the appellate decision and provide any necessary updates.

© 2023 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 230

About this Author

Elsa Bullard Litigation Lawyer Faegre Drinker Law Firm

Elsa Bullard leads clients through business litigation matters, especially environmental litigation, defense of consumer claims and contract disputes. She assists clients in a variety of industries, including the transportation industry, where she advises on cutting-edge issues related to autonomous vehicles (AVs).

Environmental Litigation

Elsa has assisted clients in major environmental matters involving perfluorochemicals (PFAS), oil spills and other alleged environmental damages. In the courtroom, she is skilled at cross-examining plaintiffs’ experts on complex...

Patrick H. Reilly Litigation Attorney Faegre Drinker Biddle & Reath Indianapolis, IN

Patrick Reilly represents multinational and Fortune 500 clients in complex litigation, regularly acting as national coordinating counsel to manufacturers in product liability actions. He also advises on sports law matters.

Patrick’s complex litigation experience includes:

  • Acting as national coordinating counsel to clients defending against mass torts, including managing thousands of cases, formulating strategies to attack and pare down the plaintiffs’ allegations, developing the company case, selecting and working up bellwether trials, structuring and...
Michael Jaeger Associate Los Angeles

Michael Jaeger represents clients in complex cases in the areas of business litigation, labor and employment, product liability, and sports and entertainment. Michael has litigated numerous matters in state and federal court and in arbitrations involving breach of contract, consumer and wage & hour class actions, civil RICO, construction defect, TCPA, franchising, employment discrimination and wrongful termination, and collective bargaining.

Michael also specializes in emerging areas of law at the intersection of technology and commerce. He litigates on behalf of and provides...

Emanuel McMiller Global Litigation Lawyer Faegre Drinker Law Firm

Emanuel (Manny) McMiller helps companies resolve and manage disputes in litigation, partnering with clients’ to achieve their business goals and avoid business disruption. Honing his skills as part of a 250-attorney litigation team, he is a key member of the global litigation team and provides critical on-the-ground litigation support in a key jurisdiction.