Elon: FSD Beta tweets

[gaspi101]

I take it @gaspi101 is speculating when he says "I think ..." So I don't expect detailed proof. If he said, I know for sure, then I'd ask for more details and explanation.

The guy says certain things are ”likely,” I don’t think it’s too much to ask what facts support his assessment of that probability

 

[gaspi101]

Legal theory, dude. Unjust enrichment.

Look it up.

Lol what a snarky response….respectfully, I’m a commercial trail lawyer, pretty familiar with common law unjust enrichment…equity cause of action used almost exclusively when a contractual basis doesn’t afford relief for some reason…it’s certainly not in and of itself an explanation for anything you just said…I’m asking what facts you have to support that conclusion, or legal theory for a cause of action, whatever.

 

[JHCCAZ]

Lol what a snarky response….respectfully, I’m a commercial trail lawyer, pretty familiar with common law unjust enrichment…equity cause of action used almost exclusively when a contractual basis doesn’t afford relief for some reason…it’s certainly not in and of itself an explanation for anything you just said…I’m asking what facts you have to support that conclusion, or legal theory for a cause of action, whatever.

Please, Law Dudes. We non-lawyers (Illegal Dudes??) could really use some legal consensus and perspective, instead of one-upmanship. I'd venture that you guys probably agree more than disagree; the argument turns on Elon's whim as much as on any legal certainties.

I regret that we meet in this way. You and I are of a kind. In a different reality, I could have called you friend.

Romulan Commander (Mark Leonard) to Capt. Kirk (William Shatner) at the denouement of the episode "Balance of Terror"​

 

[rxlawdude]

Lol what a snarky response….respectfully, I’m a commercial trail lawyer, pretty familiar with common law unjust enrichment…equity cause of action used almost exclusively when a contractual basis doesn’t afford relief for some reason…it’s certainly not in and of itself an explanation for anything you just said…I’m asking what facts you have to support that conclusion, or legal theory for a cause of action, whatever.

Let me clarify for you. Purchasers of FSD between 2016 and mid 2019, AND who dispose of the vehicle got merely a piece of FSD and since Tesla won't transfer, have a claim for at least a proportion of FSD not delivered.

Those who bought after mid 2019 when FSD features and delivery dates were more vaguely described, and those with pre 2019 FSD who retain their vehicles have a harder claim, IMO.

And I'm not a litigator and have no desire to be one. But basic contract principles apply, complicated by mandatory arbitration.

 

[MilesAR]

Ergo vis a vis concordantly!

 

[EVNow]

Please, Law Dudes. We non-lawyers (Illegal Dudes??) could really use some legal consensus and perspective, instead of one-upmanship.

Oh no. I was getting my popcorn ready to see two lawyers argue about the meaning of "likely"

 

[rxlawdude]

Please, Law Dudes. We non-lawyers (Illegal Dudes??) could really use some legal consensus and perspective, instead of one-upmanship. I'd venture that you guys probably agree more than disagree; the argument turns on Elon's whim as much as on any legal certainties.

I regret that we meet in this way. You and I are of a kind. In a different reality, I could have called you friend.

Romulan Commander (Mark Leonard) to Capt. Kirk William Shatner) at the denouement of the episode "Balance of Terror"​

I'm in the camp that says there's no liability to Tesla if one paid for FSD and still holds the vehicle. Here, Tesla still can deliver the post-2019 city street FSD so money losses are speculative.

I'm also in the camp that believes those who believe they have a claim to go to Small Claims or arbitration. Report back here.

No one has done so for this particular controversy and reported success or failure.

 

[JHCCAZ]

Oh no. I was getting my popcorn ready to see two lawyers argue about the meaning of "likely"

Sorry if i threw water instead of gasoline (or Lithium) on that fire.

And to be fair, I'll note that the preponderance of engineers and self-esteemed software experts on this forum doesn't really seem to promote harmony and consensus. So don't throw away your popcorn, we're barely through the cartoons.

 

[EVNow]

we're barely through the cartoons.

After being 12 years on the forum !!

Thats a long running cartoon.

 

[gaspi101]

Please, Law Dudes. We non-lawyers (Illegal Dudes??) could really use some legal consensus and perspective, instead of one-upmanship. I'd venture that you guys probably agree more than disagree; the argument turns on Elon's whim as much as on any legal certainties.

I regret that we meet in this way. You and I are of a kind. In a different reality, I could have called you friend.

Romulan Commander (Mark Leonard) to Capt. Kirk (William Shatner) at the denouement of the episode "Balance of Terror"​

No worries, I argue for a living, so I prefer to avoid it otherwise…particularly on the internet! With respect to the legal analysis of people that have disposed of their vehicles without getting the full suite of FSD features, that has already been well developed and concluded. When we purchased FSD, we purchased the right to receive future features as they became available. It was clearly provided in the promotional materials, as well as in the purchase disclosures. No one here has purchased level 5 autonomy, effective the moment they purchased FSD. I suspect this other guy believes that is the case, legally. It is not. Tesla did not deceive us, Tesla did not lie to us, Tesla did promise to provide access to certain features as they were developed in the future. And so far, they have kept their word. Now, if they developed full self driving and released it only to a class or category of owners other than those that purchased FSD, then they would have a big problem. If they decided that to get full autonomy, you need to purchase ”FSD+ Premium Gold,” in addition to FSD, then we would have an excellent cause of action. But so long as FSD owners are receiving the suite of features Tesla develops as they develop them, there is little chance of success for any lawsuit filed by an owner of FSD that sells their car before it is feature complete.

but hey, nothing is sure but death and taxes, and frivolous lawsuits are filed all the time, so I don’t anticipate likelihood of success (or lack thereof) to stop some people.

 

[JHCCAZ]

I'm in the camp that says there's no liability to Tesla if one paid for FSD and still holds the vehicle. Here, Tesla still can deliver the post-2019 city street FSD so money losses are speculative.

I'm also in the camp that believes those who believe they have a claim to go to Small Claims or arbitration. Report back here.

No one has done so for this particular controversy and reported success or failure.

So I've gathered that your advice, about taking it to small claims court, is based not just on the size of the claim but also on the idea that maybe it's too much trouble to defend.l, especially in that citizen-friendly venue.

I'm only asking for clarification. I am definitely not in the group of people who are seeing red and demanding legal action. I don't even have my Tesla yet, I've seen all the criticisms and still i did buy FSD outright, based on hope, need and interest - not on certainty or faith.

 

[JHCCAZ]

No worries, I argue for a living, so I prefer to avoid it otherwise…particularly on the internet! With respect to the legal analysis of people that have disposed of their vehicles without getting the full suite of FSD features, that has already been well developed and concluded. When we purchased FSD, we purchased the right to receive future features as they became available. It was clearly provided in the promotional materials, as well as in the purchase disclosures. No one here has purchased level 5 autonomy, effective the moment they purchased FSD. I suspect this other guy believes that is the case, legally. It is not. Tesla did not deceive us, Tesla did not lie to us, Tesla did promise to provide access to certain features as they were developed in the future. And so far, they have kept their word. Now, if they developed full self driving and released it only to a class or category of owners other than those that purchased FSD, then they would have a big problem. If they decided that to get full autonomy, you need to purchase ”FSD+ Premium Gold,” in addition to FSD, then we would have an excellent cause of action. But so long as FSD owners are receiving the suite of features Tesla develops as they develop them, there is little chance of success for any lawsuit filed by an owner of FSD that sells their car before it is feature complete.

but hey, nothing is sure but death and taxes, and frivolous lawsuits are filed all the time, so I don’t anticipate likelihood of success (or lack thereof) to stop some people.

If I understand what you just wrote, and having read @rxlawdude posts for months, I think you both agree here in believing that the legal case against Tesla's purported breaches is very weak. Perhaps stronger for earlier buyers (but who also paid less). His "encouragement" and "advice" regarding Small Claims relief seems to be given in the sense of "I don't think you have a decent case, but if you insist then hey you could try this, good luck and let us know if it works".

 

[gaspi101]

If I understand what you just wrote, and having read @rxlawdude posts for months, I think you both agree here in believing that the legal case against Tesla's purported breaches is very weak. Perhaps stronger for earlier buyers (but who also paid less). His "encouragement" and "advice" regarding Small Claims relief seems to be given in the sense of "I don't think you have a decent case, but if you insist then hey you could try this, good luck and let us know if it works".

No, whether a case goes to small claims or arbitration is not an indication of the strength of the merits of the case. Small claims is merely a court with a jurisdictional limit as to the amount of the claim. In most states, small claims court are for claims for less than $5000. you need to prove your damages and liability and small claims court just as you would in circuit court or any other forum that has higher jurisdictional limits. Arbitration is no different, except that it has somewhat different rules of evidence and procedure, and is meant to be quicker and less expensive for everyone. It doesn’t matter what forum you choose, you can’t escape the fundamental question of whether Tesla breached a contract, or is liable under some other cause of action under common law. That question has to be answered first, and in my opinion, the answer is a resounding NO. There is no cause of action, there is no liability, and it doesn’t matter whether you go to arbitration, small claims, Federal court, or go to the Pope himself.

another way of looking at it is this: Did Tesla promise to do something specific by a particular time in exchange for your purchase of FSD, and has Tesla broken that specific promise? if the answer is yes, then you have a potentially viable cause of action. if not, then no. An Elon tweet doth not a contract make.

Tesla has not done anything wrong. People are just salty that the promising future Tesla is working to create has not already been packaged and delivered to them already. Welcome to the Amazon generation, where every material desire is fulfilled instantly at the touch of a button. Again, when we signed up for FSD, we signed up to lock in a price for future features that would eventually get developed. FSD is transferable, therefore you have value, and the market decides how much that is.

you can also think of it this way: when you buy a AAA video game, often you can also pay for the “season pass” which will give you access to future add-ons and downloadable content at a fixed price…if you immediately turn around and sell that video game with the season pass at GameStop, do you suddenly now have a viable lawsuit against the video game developer because you did not receive the additional downloadable content the developer would’ve released in the future? No!

 

[KArnold]

I expect they will declare FSD feature complete sometime soon--that is, it does all the things originally promised, of which AP on city streets is really the only outstanding feature...

Now Tesla cannot afford to keep perpetually upgrading every car they have ever sold since 2016 every time they upgrade FSD capabilities, so I think they will declare the current SW "done" and their obligations fulfilled, then introduce something new.

In other words, perhaps full FSD as it's designed to be, is essentially all your $10k purchase/subscription will ever do. Not bad if it works and doesn't kill peeps. But just a driver assist, L2 kind of thing.

But if you want REAL FSD with L5 capabilities, wait for AP4, and cough up a newer, more expensive purchase or subscription. This is an entirely new offering.

 

[JHCCAZ]

No, whether a case goes to small claims or arbitration is not an indication of the strength of the merits of the case. Small claims is merely a court with a jurisdictional limit as to the amount of the claim. In most states, small claims court are for claims for less than $5000. you need to prove your damages and liability and small claims court just as you would in circuit court or any other forum that has higher jurisdictional limits. Arbitration is no different, except that it has somewhat different rules of evidence and procedure, and is meant to be quicker and less expensive for everyone. It doesn’t matter what forum you choose, you can’t escape the fundamental question of whether Tesla breached a contract, or is liable under some other cause of action under common law. That question has to be answered first, and in my opinion, the answer is a resounding NO. There is no cause of action, there is no liability, and it doesn’t matter whether you go to arbitration, small claims, Federal court, or go to the Pope himself.

another way of looking at it is this: Did Tesla promise to do something specific by a particular time in exchange for your purchase of FSD, and has Tesla broken that specific promise? if the answer is yes, then you have a potentially viable cause of action. if not, then no. An Elon tweet doth not a contract make.

Tesla has not done anything wrong. People are just salty that the promising future Tesla is working to create has not already been packaged and delivered to them already. Welcome to the Amazon generation, where every material desire is fulfilled instantly at the touch of a button. Again, when we signed up for FSD, we signed up to lock in a price for future features that would eventually get developed. FSD is transferable, therefore you have value, and the market decides how much that is.

you can also think of it this way: when you buy a AAA video game, often you can also pay for the “season pass” which will give you access to future add-ons and downloadable content at a fixed price…if you immediately turn around and sell that video game with the season pass at GameStop, do you suddenly now have a viable lawsuit against the video game developer because you did not receive the additional downloadable content the developer would’ve released in the future? No!

Understood about the size of the claim affecting the venue. But, it's also been said here that, at least in many states, there are restrictions on who may argue the case in Small Claims court.

I understand also that in theory it doesn't change the merits of the case, but we're talking about practical realities and costs of litigation.

So (again just narrating my possibly flawed understanding) not only is it an appropriate venue based on the several thousand dollar claim, but also has a chance of succeeding based on the fact that it's small money, it's not allowed and/or cost-effective to bring in a high-power lawyer to spend an hour swatting it down, and you just might succeed even if the merits of the claim are weak. Is there any merit to that interpretation?

To me, this is a little bit similar to the strategy of fighting a traffic citation by just showing up. Most people just pay the ticket by mail or online, but you can choose to fight it. There's a good chance the citing officer won't even appear on the day, so you could win that way (default). Secondarily, if you have the slightest amount of evidence or reasonable explanation of events, you may prevail. I've never tried this myself, but my old boss beat a traffic citation by just showing up with some hand-drawn poster diagrams and simple vector math, in an argument that the officer's angle of view diminished his ability to judge the tight-of-way factors. He confided to me that he could have rebutted his own argument, but the officer didn't know how to respond effectively and the judge admired the effort and the "technical analysis", so Case Dismissed.

Regarding your further explanation of the actual merits of the argument against Tesla, I don't think there's any major disagreement from me, nor as far as I can tell, from @rxlawdude.

 

[rxlawdude]

No, whether a case goes to small claims or arbitration is not an indication of the strength of the merits of the case. Small claims is merely a court with a jurisdictional limit as to the amount of the claim. In most states, small claims court are for claims for less than $5000. you need to prove your damages and liability and small claims court just as you would in circuit court or any other forum that has higher jurisdictional limits. Arbitration is no different, except that it has somewhat different rules of evidence and procedure, and is meant to be quicker and less expensive for everyone. It doesn’t matter what forum you choose, you can’t escape the fundamental question of whether Tesla breached a contract, or is liable under some other cause of action under common law. That question has to be answered first, and in my opinion, the answer is a resounding NO. There is no cause of action, there is no liability, and it doesn’t matter whether you go to arbitration, small claims, Federal court, or go to the Pope himself.

another way of looking at it is this: Did Tesla promise to do something specific by a particular time in exchange for your purchase of FSD, and has Tesla broken that specific promise? if the answer is yes, then you have a potentially viable cause of action. if not, then no. An Elon tweet doth not a contract make.

Tesla has not done anything wrong. People are just salty that the promising future Tesla is working to create has not already been packaged and delivered to them already. Welcome to the Amazon generation, where every material desire is fulfilled instantly at the touch of a button. Again, when we signed up for FSD, we signed up to lock in a price for future features that would eventually get developed. FSD is transferable, therefore you have value, and the market decides how much that is.

you can also think of it this way: when you buy a AAA video game, often you can also pay for the “season pass” which will give you access to future add-ons and downloadable content at a fixed price…if you immediately turn around and sell that video game with the season pass at GameStop, do you suddenly now have a viable lawsuit against the video game developer because you did not receive the additional downloadable content the developer would’ve released in the future? No!

Your argument is interesting but totally distinguished from a PURCHASE of software with at least implied functions.

FSD for the purchasers ain't a subscription.

Mandatory and binding arbitration is paid for by Tesla. Corporations tend to not re-engage arbitrators who rule against them. Kind of like paying a judge off, but legal.

That's why SCC $10K limit in many states presents a level playing field

Arbitration is a scam for consumers, stripping a right to trial from the less powerful. But I teach ethics and have a strong bias for Davids, not Goliaths.

 

[gaspi101]

Understood about the size of the claim affecting the venue. But, it's also been said here that, at least in many states, there are restrictions on who may argue the case in Small Claims court.

I understand also that in theory it doesn't change the merits of the case, but we're talking about practical realities and costs of litigation.

So (again just narrating my possibly flawed understanding) not only is it an appropriate venue based on the several thousand dollar claim, but also has a chance of succeeding based on the fact that it's small money, it's not allowed and/or cost-effective to bring in a high-power lawyer to spend an hour swatting it down, and you just might succeed even if the merits of the claim are weak. Is there any merit to that interpretation?

To me, this is a little bit similar to the strategy of fighting a traffic citation by just showing up. Most people just pay the ticket by mail or online, but you can choose to fight it. There's a good chance the citing officer won't even appear on the day, so you could win that way (default). Secondarily, if you have the slightest amount of evidence or reasonable explanation of events, you may prevail. I've never tried this myself, but my old boss beat a traffic citation by just showing up with some hand-drawn poster diagrams and simple vector math, in an argument that the officer's angle of view diminished his ability to judge the tight-of-way factors. He confided to me that he could have rebutted his own argument, but the officer didn't know how to respond effectively and the judge admired the effort and the "technical analysis", so Case Dismissed.

Regarding your further explanation of the actual merits of the argument against Tesla, I don't think there's any major disagreement from me, nor as far as I can tell, from @rxlawdude.

small claims courts often have somewhat more relaxed rules of evidence and procedure so that folks can represent themselves, that’s true, but it doesn’t change the viability of the lawsuit…might make it less expensive to litigate, but conversely, also harder to prove your case without a lawyer… but the issue really is moot, since you first have to answer the question of how much you are suing for and under what basis.

I read @rxlawdude comments suggesting that people can sue for unjust enrichment now, if they sell their cars that have FSD, because they have not received all of the FSD features yet. I don't agree.

 

[gaspi101]

Your argument is interesting but totally distinguished from a PURCHASE of software with at least implied functions.

FSD for the purchasers ain't a subscription.

Mandatory and binding arbitration is paid for by Tesla. Corporations tend to not re-engage arbitrators who rule against them. Kind of like paying a judge off, but legal.

That's why SCC $10K limit in many states presents a level playing field

Arbitration is a scam for consumers, stripping a right to trial from the less powerful. But I teach ethics and have a strong bias for Davids, not Goliaths.

Ok

 

[rxlawdude]

I read @rxlawdude comments suggesting that people can sue for unjust enrichment now, if they sell their cars that have FSD, because they have not received all of the FSD features yet. I don't agree.

Reasonable people can disagree. Unjust enrichment would be the equity claim, but non-delivery of contractual obligations is really the nub. I want people to take action rather than moaning on the Internet. The first few cases will be instructive.

 

[gaspi101]

Reasonable people can disagree. Unjust enrichment would be the equity claim, but non-delivery of contractual obligations is really the nub. I want people to take action rather than moaning on the Internet. The first few cases will be instructive.

Again I‘ll ask, what is the basis for the claim? What facts? What’s the wrongdoing you see Tesla having committed? That we don’t have level 5 autonomy yet? That you didn’t have it the day you bought FSD?