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Thursday, 4 May 2017

The Power of an Oxford Comma

The Oxford (or "serial") comma is often considered to be of interest only to the worst sort of pedant (though "pedant" isn't actually a bad thing to be at all, not on the proper meaning of the word). It can however be crucial to the interpretation of a piece of writing - as a company in Maine foud out recently. Relying on a statute which exempted from an obligation to pay overtime to employees engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution" of certain perishable products, it did not pay overtime to employees engaged solely in distribution. The District Court decided that distribution was a "stand-alone exempt activity", but the Court of Appeals for the First Circuit found that the lack of a serial comma to mark off the last listed activity meant that the provision was ambiguous. The state's default rule of construction required the court to resolve the ambiguity in favour of the beneficiaries of the exemption, namely the drivers. So, for want of an Oxford comma, the drivers got their overtime payments.

It wasn't that the court decided that the absence of the comma was in itself determinative: and I think it would clearly have been wrong had it so decided. To give the words the meaning contended for by the employers, it would have been necessary to obey the rules about parallel construction, inserting a conjunction (in this case "or") between "storing" and "packing", to make clear that "packing for shipment or distribution" was one activity. But how often do you see that rule obeyed?

Thanks to Thomson Reuters Legal Solutions Blog for alerting me to the story.

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ASA rules on "EXTRA 50%off all oils" advertisement

In an email on 25 November 2016, Euro Car Parts advertised "EXTRA 50% Off All Oils" but the complainant argued that Castrol Engine Oil Edge FST 4ltr was not 50% cheaper. Euro Car Parts argued that the oil was priced at £64.32 for two weeks before the four-day offer and for six weeks after it ended. The ASA took the view that consumers would understand the claim in the advertisement meant that they would be able to purchase oil at a discount from the usual selling price, and the word "EXTRA" would suggest to them that a discount had already been applied so the promotion gave an additional 50 per cent discount. Given that the Castrol oil had been offered at £64.32 only for two weeks before the promotion, and otherwise had sold for between £36.49 and £46.99 during 2016, the higher price could not be called the "usual selling price". Moreover, the use of the word EXTRA indicated that the total discount was more than 50 per cent, which was not the case. The complaint was upheld

Euro Car Parts Ltd - ASA | CAP:

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BMW (UK) Ltd - ASA Code of Advertising Practice ruling

In BMW (UK) Ltd - ASA | CAP two complaints were investigated by the ASA, both of which were upheld. The ruling concerned a national press ad for the BMW 760Li xDrive, seen in the Telegraph Magazine on 14 January, featured the headline claim "LUXURY JUST LOST ITS MANNERS." Further text stated "Introducing the BMW M760Li xDrive. M Performance TwinPower [sic] Turbo technology. 6.6 litre V12. 610 hp. 0-62mph in 3.7 seconds. For some, the climb to the top is quicker".

The complainant alleged that BMW had made speed the main message of the ad, contrary to Rule 19.4 of the CAP: and, noting that the Highway Code prohibited driving without reasonable consideration for other road users, also contended that the claim "Luxury just lost its manners" condoned irresponsible driving contrary to Rule 19.2.

The ASA upheld both complaints and told the advertiser to ensure they did not make speed or acceleration the main message of their future marketing communications. The ASA also told them to ensure that their ads did not condone or encourage driving without consideration for other road users.

For the full text of the Council decision, go here.

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Compliant fleets may face charge to help DVSA target unsafe vans

In January last year, the Department for Transport launched its Consultation on reforms to the MoT testing system. The consultation period ended in April 2017, and in its submission the Freight Transport Association has called on the government to ensure the cost of enforcement against owners of dangerous or unroadworthy vans is charged to those not complying with the law, rather than spreading the cost across the entire sector. The consultation asked whether the costs of enforcement against unsafe vans out on the roads should be charged to van operators on top of the MOT fee.

The FTA's press release says:
FTA’s membership supported the move to charge the industry, but is demanding that consideration is given to the application of this new “enforcement levy” only to those whose vehicles did not pass their MOT at the first attempt.
“FTA members who operate vans maintain their vehicles properly and many expect nothing less than a 100% first time pass rate at MOT,” says James Firth, FTA’s Head of Licensing Policy and Compliance Information. “The proposed switch of funding to the sector is undoubtedly the right move from the point of view of holding operators to account for their vehicles. However, many of our members are frustrated that, while they are investing in maintaining their fleets in a roadworthy condition, their competitors know that, in the absence of effective enforcement, they can run their vehicles in a poorly maintained, dangerous state.
“The responsibility for the roadworthiness of a vehicle sits firmly with the operator,” he continues, “but it is wrong to assume the rest of the sector will prop up businesses that fail to adhere to the high standards that FTA members expect. We urge government to take the opportunity to apply costs only to non-compliant operators whose vehicles do not pass the MOT at the first attempt.”
With 46.8% of vans failing their MOT test at the first time of presenting, FTA members are also concerned about the practice of using the test as a diagnostic tool, rather than ensuring that regular maintenance programmes are upheld across the industry. Firth continues:
“The MOT test is not intended to highlight areas for improvement, but to ensure that safety standards are being maintained at a continuous level. Many of the vehicles which feature in the failure stats could have been given a temporary fix to pass the test, but could easily deteriorate to a dangerous level shortly thereafter, with no follow up inspection. By ensuring that the enforcement levy falls on those requiring a retest, FTA is confident this would be an additional financial incentive for all van operators to maintain standards and strive for a first time pass, every time.”
The Van Excellence Accreditation Scheme, run by the FTA in partnership with some of the country’s leading van operators, includes a Code of Practice for operators, outlining “what good looks like” and helping more operators to operate to nationally recognised best practice standards. To find out more about the scheme, and how to join, please visit

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Level 3 Autonomous cars need change in law

With Audi poised to launch the first production car capable of Level 3 autonomous driving (the A8, due later this year), and Mercedes proposing a lower level of automation (a "very sophisticated level 2 system, according to reports") in the new S-class at about the same time, the state of the law on autonomous cars (or lack of it) becomes of pressing importance. A new law in Germany await to approval of the upper chamber and is expected to become law in weeks.

The ability of countries to adopt suitable new laws is governed by the Vienna Convention on Road Traffic. The 1968 Convention was amended with effect from 23 March 2016 to permit levels 3 and 4 of autonomous driving. Previously Article 8 stipulated that “Every driver shall at all times be able to control his vehicle or to guide his animals.” The new paragraph inserted into Article 8 provides:

5bis. Vehicle systems which influence the way vehicles are driven shall be deemed to be
in conformity with paragraph 5 of this Article and with paragraph 1 of Article 13, when
they are in conformity with the conditions of construction, fitting and utilization according
to international legal instruments concerning wheeled vehicles, equipment and parts which
can be fitted and/or be used on wheeled vehicles* 
Vehicle systems which influence the way vehicles are driven and are not in conformity with
the aforementioned conditions of construction, fitting and utilization, shall be deemed to be
in conformity with paragraph 5 of this Article and with paragraph 1 of Article 13, when
such systems can be overridden or switched off by the driver.
The five levels (six, if you include level zero, which is what we've all been doing until recently and most of us still are doing) are defined by the Society of Automotive Engineers (SAE) in J3016, Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems. The classification is available here on Wikipedia and the levels of autonomy are usefully paraphrased as "hands on", "hands off", "eyes off", "mind off" and "wheel optional". Current Tesla models (using so-called "Autopilot" technology) are at level 2 (notwithstanding which some drivers seem to have assumed "Autopilot" meant level 5). The SAE calls Level 3 "conditional automation". Level 2 is referred to as "partial automation".

Automotive News Europe - Audi's A8 self-driving tech depends on regulatory changes.

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Friday, 21 April 2017

Dieselgate: $4.3 billion in U.S. fines and penalties

Several sources report that a Federal judge has imposed the criminal penalty mooted in January for VW importing 590,000 illegally polluting diesel vehicles into the US from 2009. A plea agreement, whereby VW admitted conspiracy, obstruction of justice, and introducing important merchanidise into the US by means of false statements, required the car maker to pay $2.8 billion (£2.2 billion) in fines and $1.5 billion (£1.2  billion) in civil penalties: it also demanded that VW continue to co-operate with Federal and state investigators. An independent monitor would be appointed for three years, and other conditions were to be imposed to ensure compliance in the future. Without the plea agreement, the US government said that the manufacturer faced potential fines of between $17 billion and $34 billion.

US District Judge Sean Cox, in the District Court for the Eastern District of Michigan, has now confirmed the settlement, while expressing the hope that continuing investigations will turn up more information about where responsibility lay, leading to the prosecution of the individuals concerned. He expressed the view that it was not the management of VW who would suffer but those who labour to make the car, who would be denied bonuses because of the cost to the company of dealing with the fraud.

The Department of Justice has appointed former US Deputy Attorney General Larry Thompson as the independent monitor.

VW continues to buy back affected models, and faces civil litigation in the US and criminal investigations and claims elsewhere. Seven executives also face charges in the US.

Automotive News

Car Dealer Magazine


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EU to propose linking CO2 emissions for trucks, cars to road toll charges

Automotive News Europe reports that the Commission will shortly publish proposals to make vehicles pay higher road toll charges according to the amount of carbon dioxide they emit. It will be the first time that the EU has intervened in the road tolls field except for trucks, and is expected to set out EU-wide principles such as the idea that drivers should pay a toll related to the distance travelled, and including buses and coaches. Time-based charges, such as those in Germany, will not be permitted, and tolls will have to avoid discriminating against foreign drivers - another issue which Germany has faced. It aims to be revenue-neutral, so more-polluting vehicles will be charged more while cleaner ones will face lower tolls.

ACEA has indicated that it supports differential road charging provided it promotes low emissions in real conditions of use, and fair competition between types of vehicles. To achieve an optimal result, ACEA argues that the real emissions of the complete vehicle combination - including tyres, weight and aerodynamics - must be taken into account. But the proposals will not be universally welcomed - hauliers will oppose the phasing out of time-based vignette systems which are cheaper to operate than distance-based charges, which will require new onboard equipment.

The proposals will not mandate the hypothecation of revenues from tolls, but will include disclosure requirements to it will be clear where the money raised is spent.

The proposals are expected to be published on 31 May.

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