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Vol. 10 No. 210 May 6, 2022 Missouri Farmer Alleges Deere Dealer Threatened Him, Showing Customer Frustration With Lack of Repair Options . m Missouri farmer Jared Wilson had planted about 40% of his crop of corn and soybeans when his Deere & Co. (DE) tractor’s air conditioning broke down. The tractor’s glass cabin focused the April day’s heat, and the temperature began to climb, reaching the point where Wilson’s iPad shut down, ru which usually occurs at 95 degrees or above. Wilson lacked the tools to do the repair himself, so he called Heritage Tractor in Adrian, Missouri, lfo the John Deere dealership nearest to his farm. Instead of setting up a date and time when a technician could come to the farm and fix the tractor, Dale VanSlyke, the dealership’s manager, criticized Wilson as a customer and said he should take his business elsewhere in an April 14 conversation, according to the farmer’s account, which is contained in an affidavit. m ito The farmer and the dealership had clashed before, with Wilson complaining about what he described as a previous botched repair for which he was wrongly billed. Wilson had taken his co ap criticisms public, becoming an outspoken critic of Deere’s repair restrictions who has been featured in national news stories and reports by groups supporting the growing right-to-repair movement. He also is quoted by name in a complaint that farmers’ groups filed with the FTC on March 3 ec calling for an agency investigation into Deere’s restrictions on repairs. With Heritage Tractor the only Deere dealership within an 80-mile radius of his farm near Butler, Missouri, Wilson interpreted VanSlyke’s comments as a threat. th “The entire conversation was chilling and it was very concerning,” Wilson said in an interview. “What I took from it is I am causing drama by objecting to faulty repairs that I am billed for. I also took it to mean that the advocacy work I’ve been doing is problematic for him.” n@ Heritage Tractor ultimately sent a technician to repair the tractor, but after the phone call, Wilson contacted an attorney, who recorded the farmer’s story in the affidavit, which was mailed on Wednesday to the FTC and the Missouri attorney general’s office. As The Capitol Forum previously reported, the FTC is in the early stages of an inquiry into whether ow John Deere, the world’s largest maker of farm equipment, illegally restricts repairs on tractors and other machinery. The incident between Wilson and Heritage Tractor comes as the right-to-repair movement, which advocates companies making it easier for customers to fix their products, spreads across the country. The Wilson phone call shows the mistrust some feel toward Deere and its br policies, which make it all but impossible for farmers to fix some of their equipment on their own. 1 © 2022 The Capitol Forum. Direct or indirect reproduction or distribution of this article without prior written permission from The Capitol Forum is a violation of Federal Copyright Law. Deere is defending itself against 11 class action lawsuits that accuse the company of . anticompetitive and unfair conduct, including repair restrictions. m Dozens of state legislatures are considering legislation to curb or ban repair restrictions for farm equipment, including Missouri, where the legislative session ends later this month. Senator Jon ru Tester (D-MT) has also introduced federal legislation that would limit manufacturer repair restrictions and make it easier for farmers to repair their own equipment or hire third-party mechanics. lfo Chris Nuelle, a spokesperson Missouri Attorney General Eric Schmitt, declined to comment until the office has had time to analyze Wilson’s affidavit. The FTC didn’t respond to a request for comment. m ito VanSlyke didn’t respond to detailed questions emailed to him. A Deere spokesperson didn’t respond to requests for comment. co ap Two journalists with Successful Farming (SF)—Executive Editor Dave Mowitz and New Products Editor Alex Gray—overheard Wilson and VanSlyke’s conversation after arriving for a pre- scheduled interview with the farmer, according to Wilson. The trade publication didn’t respond to requests for comment. ec Longtime John Deere customer. Wilson’s farm, Wilson Farms Land and Cattle, has been in his family for at least 100 years. For most of that time, his family has used John Deere equipment. As th a row crop farmer, he cultivates 4,000 acres of corn and soybeans and runs a 250-head cow-calf operation. He employs a couple of farmhands and uses 15 Deere machines, whose total worth he estimated is roughly $1.8 million. Most of Wilson’s field equipment is John Deere. n@ Wilson last year spent about $7,000 at Heritage Tractor getting his combine ready for the season; this year Wilson said he may spend $15,000 to $20,000. The farmer explained that there are a lot of “wear items” on combines compared with a car, particularly parts that come in contact with the ground. Other equipment also needed upgrades: Wilson was out $33,000 after paying for new tractor tires. ow The most he’s spent in a year on parts and labor to repair his machines was $150,000. In addition to the expense, the repair process hasn’t always run smoothly, Wilson said. In the complaint filed with the FTC last month, Wilson shared another example of the costs he said br he’s eaten due to repair restrictions. After a mechanical valve on his Deere fertilizer spreader broke, 2 © 2022 The Capitol Forum. Direct or indirect reproduction or distribution of this article without prior written permission from The Capitol Forum is a violation of Federal Copyright Law. the machine couldn’t be repaired until error codes from a Deere-authorized technician were entered, forcing Wilson to bring the machine to a dealership that isn’t named in the complaint. . Wilson said the machine sat at the shop for 32 days, costing him an estimated $30,000 to $60,000 m in lost work. The air conditioning conking out was a relatively minor issue and didn’t require immediate ru attention, Wilson said in the April 14 phone call with the dealer, whom he has worked with since 2013. Wilson’s 9510R tractor has 3,300 hours on it, so the AC repair would be normal after such use. lfo When Wilson requested a technician come out to his farm to fix the air conditioning, he talked to the Deere shop foreman with whom he typically scheduled repairs. But the foreman told him he would have to speak directly with VanSlyke, who would have to authorize the fix, the farmer said. m ito It was an unusual request, and, considering Wilson’s fraught history with the dealership, the farmer took it as an ominous sign, he said. Successful Farming’s Mowitz and Gray had just arrived at Wilson’s farm, earlier than expected for co ap a pre-scheduled interview, Wilson said. Wilson said he told them he had to make this other call before continuing with the interview given the urgency of planting season, a crunch time for farmers. ec When he contacted VanSlyke, Wilson, without telling the dealer, put the call on speaker so the journalists could hear both sides of the conversation because of mounting concerns Wilson had with Heritage Tractor, the farmer said. th Wilson said in a recorded conversation with the attorney preparing the affidavit that “I wanted someone else to hear that conversation because I was kind of concerned about what it was going to contain.” n@ Affidavit submitted to the FTC. In the recorded conversation with his attorney, Wilson recalled that VanSlyke said, “Our past few interactions, it hasn’t been very profitable for Heritage Tractor to work on your equipment, and it seems that it hasn’t been very profitable for you for us to work on your equipment. So, I’m just wondering why you would even … want to have us out to work on your equipment if you don’t think that we can do a good job.” ow Wilson said on the recording he has had previous issues with getting his repairs completed on time; the dealership has botched the work sometimes, and even mistakenly added charges for fixes never made or done badly to his John Deere Financial account, a credit service that helps finance br equipment purchases and repairs. 3 © 2022 The Capitol Forum. Direct or indirect reproduction or distribution of this article without prior written permission from The Capitol Forum is a violation of Federal Copyright Law. When Wilson asked VanSlyke who else he should contact to make the repair, the dealer suggested . an independent technician Wilson knew personally, according to the farmer’s recounting. As it m happened, Wilson had spoken to the technician earlier that day and learned that he couldn’t schedule new repairs for another three weeks. Wilson relayed this to VanSlyke, pressing him on what other options were available, but didn’t receive a satisfactory answer, the farmer said. ru Wilson in the recording said that VanSlyke “derided” him and complained about the last repair Wilson asked Heritage Tractor to perform. In the recording, Wilson explained that in December lfo 2021 the dealership had conducted faulty maintenance on his combine, causing grain to leak as the machine harvested. He emailed the dealership detailing the problem with pictures but didn’t receive a response, Wilson m ito recounted in the recording. A week later, Wilson tried again, writing in a second email to the dealership that he would take the machine to alternate Deere dealerships if Heritage Tractor didn’t address the issue. co ap VanSlyke referenced this earlier incident in the April 14 conversation with Wilson, the farmer said. “We don’t need the drama associated with you as a customer,” VanSlyke said, according to Wilson’s affidavit. Wilson interpreted that comment as retaliation not just for personal disputes over his repairs, but about his right-to-repair advocacy, as well. Wilson said that he believed ec VanSlyke was planning to deny him service, with little notice during the planting season, though VanSlyke denied this on the April 14 call. th VanSlyke also told Wilson that if Heritage Tractor would perform the repair, they expected “no drama around this.” VanSlyke added, “Yeah, well, this time, we’ll send someone out.” In the recording, Wilson told his attorney, “I guess I’m on parole. And to expand on that, I guess n@ that I’m supposed to not say anything, you know, derogatory about John Deere or complain about my bill if they don’t take care of what I’ve contracted them to do.” Possible regulator interpretation. Peter Carstensen, professor emeritus at the University of Wisconsin Law School, said that the phone call may have produced what amounts to a “dissatisfied customer affidavit.” The company, he explained, could argue that businesses have the right to ow refuse to deal with “a really difficult customer.” However, that argument bears less weight when so few options exist for Deere equipment repairs, Carstensen said. br 4 © 2022 The Capitol Forum. Direct or indirect reproduction or distribution of this article without prior written permission from The Capitol Forum is a violation of Federal Copyright Law. “The key fact is the increase in concentration in Deere dealerships,” said Carstensen, who viewed the affidavit at The Capitol Forum’s request. “This is not just a situation where [customers] have . got a lot of other options. This is a customer who is trapped, however belligerent and unhappy he m may be.” Indeed, Carstensen said, firms with monopoly power have a so-called “duty to deal,” according to ru the 1985 Supreme Court precedent Aspen Skiing Co. v. Aspen Highlands Skiing Corp. “It raises a really interesting ‘duty to deal’ question where your supplier, John Deere, has created lfo a context in which your customer who bought the tractor from you [the dealership] has no alternatives,” he said. “To that extent it really reinforces the issues around the right to repair.” Amanda Hitt, director of the whistleblower protection group Government Accountability Project’s m ito Food Integrity Campaign, put the impact of the dealership’s decision in stark terms. “It’s an example of non-competition,” Hitt said. “Where else is this guy going to take his tractor? Essentially he’s now put out of business because of an anticompetitive measure that John Deere is pushing on America’s farmers.” co ap If Wilson’s recollection is correct, the dealership’s actions could be “almost” an “easy” Sherman Act Section 2 case, Carstensen said. ec John Deere has made it “impossible to get an independent repair” and farmers must work with a dealership within a reasonable distance, limiting their options further, he added. th “The minute you can show with discovery that Deere [corporate] in some way ordered this conduct, there isn’t any possible defense of [a right to] choosing your customer,” he said. n@ Threat makes its mark. Wilson doesn’t have many alternatives to Heritage Tractor, the only Deere dealership within 80 miles of his farm. The closest other options are in Kansas and northern Missouri, but the distance makes it impractical for Wilson to use them, he said. Wilson estimated that it would cost $500 for a Deere-authorized technician from one of those other dealerships to come to his farm. The technician may have to travel to the Wilson farm multiple ow times – first to diagnose the problem and then to bring the right tools. If the 9510R tractor didn’t run, the expense would be even greater. Wilson said he could put the machine on a flatbed truck and transport it to alternative dealerships at a cost of $2,000 to $2,500 br 5 © 2022 The Capitol Forum. Direct or indirect reproduction or distribution of this article without prior written permission from The Capitol Forum is a violation of Federal Copyright Law. even before the repairs, he said. Transporting the machine to the Adrian dealership would cost roughly $500, he said. . m “Regardless of the job they do,” Wilson said in the recording, “they’re the only one that can do it, you know, within the time frame that I need it done, you know. No one is close enough to do it.” ru The lack of viable dealership options for farmers is a well-established problem. U.S. PIRG documented the consolidation of Deere dealership dating to the early 2000s. The average Deere chain, the consumer advocacy group wrote, has about eight sites. Heritage Tractor has 21 locations lfo across Missouri, Kansas and Arkansas, according to its website. U.S. PIRG has argued that the consolidation has lowered the quality of service. Despite complaints by Wilson and other customers, Heritage Tractor has said farmers can fix their m ito own equipment. The dealer’s website includes a section devoted to self-repair. “Through our partnership with John Deere, we provide an expansive list of options to keep you operating,” the website reads. “These resources are available today for customers and independent repair shops to purchase, and have been for years.” co ap The website boasts that “two out of three parts that Heritage Tractor sells are to customers or independent repair shops to fix their own equipment.” ec In April, John Deere announced long-awaited diagnostic tools, Customer Service ADVISOR, for customers to conduct their own repairs. Now, farmers can purchase the tools through John Deere dealerships, rather than waiting for dealerships to use software themselves to diagnose an issue. th Self-repair advocates, however, said that the new tools do little to give farmers the ability to fix equipment themselves. Wilson told The Capitol Forum that sharing with his neighbors the experience he had on the April n@ 14 call has made them reluctant to speak out against Deere and its dealerships. “I’m just really angry that I’m in a position where my livelihood can be threatened from a corporation,” he said. “This is precisely the type of monopoly that’s bad and I’m experiencing firsthand why that is.” ow br 6 © 2022 The Capitol Forum. Direct or indirect reproduction or distribution of this article without prior written permission from The Capitol Forum is a violation of Federal Copyright Law.