Anoush Cab, Inc. v. Uber Tech. Inc. ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2001
ANOUSH CAB, INC.; ARAMS, INC.; ARARRAT, INC.; ATLANTIC CAB,
INC.; BARLOW CAB, INC.; BEDROS CAB, INC.; BOYLSTON CAB, INC.;
BRIGHAM CAB, INC.; CLEVELAND CAB, INC.; DIAMOND CAB, INC.; ELSIE
CAB, INC.; FENWAY TAXI,INC.; G&A CAB, INC.; JORDAN CAB, INC.;
JUBRAN CAB, INC.; KILMARNOCK CAB,INC.; LITTLE ISLAND CAB, INC.;
LOCUST CAB, INC.; LONGWOOD CAB, INC.; M & AN CAB, INC.; M.P.E.
CAB, INC.; MARBED CAB, INC.; MASSIS, INC.; MESROB, INC.; N.E.
CAB, INC.; ORIOLE CAB, INC.; PETERBOROUGH CAB, INC.; QUEENSBURY
CAB,INC.; SAHAG, INC.; SOVEREIGN CAB, INC.; V & A CAB, INC.;
VERAS, INC.; VICKYS, INC.; YELLOWBIRD CAB, INC.,
Plaintiffs, Appellants,
GILL & GILL, INC.; NANAK NAAM, INC.; AMRITSAR EXPRESS, INC.;
SONNY AND BOBBY TRANS., INC.; GILL TRANS., INC.; FINOS TAXI,
INC.; CHARLENE TAXI, INC.; MYTASHA TAXI, INC.; WYOMING CAB,
INC.; EDWARD'S TAXI, INC.; CURTIS CAB, INC.; MY FATHER TAXI,
INC.; MIC-PAUL TAXI, INC.; A. STACY TAXI, INC.; PATTI PIE TAXI,
INC.; MCGAFF TAXI, INC.; RAWAN TAXI, INC.; SPRING TAXI, INC.;
SUMMERS TAXI, INC.; AUTUMN TAXI, INC.; WINTERS TAXI, INC.; BOW
STREET TAXI; BLUE KNIGHT TAXI, INC.; CHELE TAXI, INC.; CHRISTMAS
TAXI, INC.; GES TAXI, INC.; GRAND SPORT TAXI, INC.; BREENIE
TAXI, INC.; LIL'S TAXI, INC.; CLAIRE TAXI, INC.; DON-LIL TAXI,
INC.; ANDY'S CAB, INC.; BOARDMAN CAB, INC.; GROVE CAB, INC.;
SECRET SQUIRREL TAXI, INC.; NAVJIT CAB, INC.; PREED, INC.;
NAJJAR ENTERPRISES, INC.; BILGA, INC.; JIMMY 1, INC.; ANJU
TRANS., INC.; DEEP CAB, INC.; EMATESSE CAB, INC.; CHRISTOPHER
CAB, INC.; DADOO CAB, INC.; GURU GOBIND CAB, INC.; AUBANEL
TRANS., INC.; RAMC CAB, INC.; TED D. J. TAXI, INC.; MAKONNEN
CAB, INC.; YELLOW CAB OF BELMONT, INC.; MAJID, INC.; JOUNE,
INC.; HARE HARE TRANS., INC.; ANPAUL CAB, INC.; TABIKING
EXPRESS, INC.; MARCIA AND EVERTON CAB, INC.; RICARDO & JOANNE
CAB, INC.; PATIENCE TAXI, INC.; TURK TRANS., INC.; NATIVITY CAB,
INC.; ROSE CAB, INC.; HAAMA TRANS, INC.; TOM'S TAXI, INC.; MERA
SOAMI, INC.; MUGAL TRANS., INC.; KHAVEERI, INC.; F. EDEL, INC.;
ANGEREB, INC.; TREMONT STREET TAXI, INC.; GANGA, INC.; NEW
INVISION, INC.; K. HEYDEN, INC.; BRENT TAXI, INC.; IRAJ, INC.;
SWAMI JI, INC.; GEOLANGE, INC.; ESPERANTA TAXI, INC.; SINGH CAB,
INC.; SHIVA JI CAB, INC.; LARROUSE CAB, INC.; JAVE CAB, INC.;
TALIN CAB, INC.; LUNICA, INC.; NILE EXPRESS, INC.; SMOOTH RIDER,
INC.; E. AND ANNE TAXI, INC.; ALEN'S CAB, INC.; MEGAN CAB, INC.;
SAMUEL TRANSPORTATION, INC.; PETIT GOAVE CAB, INC.; MICHAEL CAB,
INC.; ABSOLUTE TAXI OF CAMBRIDGE, INC.; ALTA TAXI, INC.; TARJAN
CAB, INC.; ALEXANDRIA TRANS., INC.; KOHSAR, INC.; RIVAL CAB,
INC.; YHWH SABAOTH, INC.; PRAISE THE LORD, INC.; HARVARD SQUARE
CAB, INC.; FLYING CARPET CAB, INC.; MEHROSE, INC.; AMAR TRANS.,
INC.; RB CAB, INC.; CROYANCE CAB, INC.; P.I. CAB, INC.; HOMANO &
CARL TAXI, INC.; FLEDO, INC.; J.W. CAB INC.; PIDI CAB, INC.;
GODAVARI, INC.; ST. RICHARD TAXI, INC.; RUTH CAB, INC.;
SATKARTAR, INC.; ELIOT CAB, INC.; WADH BAGH SINGH CAB, INC.; MY
YASMINA CAB, INC.; TWO GIRLS TAXI, INC.; PAPESO CAB, INC.;
ZAHIDA TRANS., INC.; YVES TAXI, INC.; YUNG CAB, INC.; PALOMA
TRANSPORTATION, INC.; MARTHA'S TRANS., INC.; LA BOULE DE FEU,
INC.; SPLENDIDE CAB, INC.; SHOOPITE CAB, INC.; GREEN LAND, INC.;
TR CAB, INC.; FEDSEN & TEDSEN, INC.; DIEU EST BON, INC.; VICEROY
CAB, INC.; NEGES JR., CAB, INC.; RADHA SWAMI BIAS, INC.; PROMISE
CAB, INC.; G.G.M. CAB, INC.; PABLE TAXI, INC.; BROTHERS CAB,
INC.; KASSIE CAB, INC.; JAZZ TAXI, INC.; B GOOD CAB, INC.; OHM,
SHIVA & GANESH CAB, INC.; L'OISEAU TAXI, INC.; LYSETTE & JARDUS,
INC.; FATIMA CAB, INC.; SELON DIEU CAB, INC.; M. & D. BROTHERS,
INC.; LA TRINITE, INC.; LOVELY ONE, INC.; WILVENS CAB, INC.;
GOOD TIME CAB, INC.; DOU DOU CAB, INC.; MGP TAXI, INC.; G. JOSE
CAB, INC.; JEAHANNA TAXI, INC.; NATOU CAB, INC.; CLERNA CORP.;
ANTONIO & FRANCO, INC.; GURU TEGH BHADUR CAB, INC.; MONA CAB,
INC.; ERIC & MARIA CAB, INC.; CHRIS AND JUNIOR, INC.; SURPRISE
CAB, INC.; CHENAL CAB, INC.; ANH CAB, INC.; AUGUST CAB, INC.;
KARTAR CAB, INC.; NIMRAH TRANS., INC.; JELUS CAB, INC.; ELZIRA &
LUC CAB, INC.; BKMB, INC.; ONLY BELIEVE TAXI, INC.; NADA, INC.;
MANOR CAB, INC.; GALEHAD TAXI, INC.; A. TAMMY CAB, INC.;
GARVEN'S CAB, INC.; ARNOLD COURT TAXI, INC.; BBJ CAB, INC.;
SILVA CAB, INC.; GUMAT CAB, INC.; BRIOL CAB, INC.; BEST IS BEST
CAB, INC.; MJ TAXI CAB, INC.; SAMI'S TAXI, INC.; C.T.P. I, INC.;
ERA ET LABORA, INC.; MUNNY TRANS., INC.; HARSH CAB, INC.; SOEG
CAB, INC.; ALDINE CAB, INC.; TIVY, INC.; ISAIH MATHEW, INC.;
ADVANTAGE TAXI OF CAMBRIDGE, INC.; BANWAIT TRANS., INC.; CAYES
II CAB, INC.; JACQUET CAB, INC.; EBEN-EZER TAXI CAB, INC.; YOLY-
CARVENS, INC.; SHEIKH TRANS., INC.; MY NATHALIE CAB, INC.; RED
FISH CAB, INC.; AZIN TAXI, INC.; MEKLIT CAB, INC.; P & S TAXI
CORP.; ROBENSON TAXI, INC.; RP EXCELSIOR, INC.; MILLENNIUM TAXI,
INC.; BB TAXI EXPRESS, INC.; TEJA TRANS., INC.; ROL & G., INC.;
LOVE CAB, INC.; LES GENS DU NORD, INC., BHARGO INC., H & L CAB,
INC.; DELIVRANCE CAB, INC.; TOWN TAXI OF CAPE COD, INC.; KURALA
TRANS., INC.; TINA & NINA TRANS., INC.; MAVA TAXI, INC.;
CAMBRIDGE CAB CONNECTION, INC.; HERNANDEZ TRANSPORTATION, INC.;
RIL-TUL CAB, INC.; KHALSA CAB, INC.; ALPHA OMEGA CAB, INC.; T &
J CAB, INC.; MT. EVEREST, INC.; U & I CORP.; JFL CAB, INC.;
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DADY-PHONE, INC.; R. CANDY TAXI, INC.; VICTORIA CAB, INC.; SELAM
TRANSPORTATION, INC.; PRO-CAB, INC.; YOTILLE CAB, INC.; ABCD
TAXI, INC.; NKB CAB, INC.; MARCUS CAB, INC.; ELPOORAG, INC.;
KENDRA CORPORATION; BRITNEY CAB, INC.; ELAN CAB, INC.; JAI
GURUDEV CORPORATION; DOPHY TAXI, INC.; DREAMERS CAB, INC.;
WALGER, INC.; DESDUNES UNITED, INC.; PATRICK TAXI, INC.; DOUCEUR
CAB, INC.; JE CROIS EN DIEU, INC.; MT. CARMELLE TAXI, INC.;
ABBED CAB, INC.; ADDIS CAB, INC.; ARIEL & JAPHETH, INC.; BETHEL
CAB, INC.; CHARLIE CAB, INC.; CORETTA, INC.; CYRILO CAB, INC.;
DALESHA TAXI, INC.; DESDUNES CAB, INC.; ELYSSE CORPORATION;
FIRST STREET CAB, INC.; G & E. CAB, INC.; GL CAB, INC.; GOH CAB,
INC.; GAGAN TAXI, INC.; JACQUELINE CAB, INC.; JEREMIE TAXI,
INC.; LOUINE CAB, INC.; M. ANGELO CAB, INC.; NAHAR SINGH CAB,
INC.; NEK FAB, INC.; O.D.J. TAXI, INC.; ONKAR CAB, INC.; PH &
KN, INC.; RADHA TRANS., INC.; RANDAH CAB, INC.; S & J INC.; TWO
BOYS CAB, INC.; VIRGINIA CAB, INC.; WINDSOR CAB, INC.; ZANDO
CAB, INC.; AHRAM CAB, INC.; AN YIN PA TA, INC.; ANDERSON &
JOSHUA CAB, INC.; ANNA CAB, INC.; ARISTOCRATS AMBIANCE TAXI,
INC.; BAINET CAB, INC.; BAY CITY TAXI, INC.; BIBI'S CAB, INC.;
C.E.F. CAB, INC.; CAMBRIDGE CLASSIC CAB, INC.; CAYES CAB, INC.;
CENTRAL SQUARE, CAB, INC.; CLEO TAXI, INC.; DEMOSTERNE, INC.;
EAGLE TAXI, INC.; EL CHALDAY, INC.; ELIZABETH CAB, INC.;
ENCHANTE TAXI, INC.; EUREKA CAB, INC.; FARB, INC.; G & J CAB
INC.; GIORGIO'S CAB, INC.; GOLDEN TEMPLE TRANS., INC.; GREEN
STRIPE CAB, INC.; GURU TRANS., INC.; HAWELTI CAB, INC., HOSANA
TAXI, INC., ITA CAB, INC.; IMPECCABLE TRANS, INC.; JMF CAB,
INC.; JV TAXI, INC.; JEZIL CAB, INC.; JOYSE CAB, INC.; KARIM
CAB, INC.; KESHIA CAB, INC.; KEVIN TAXI, INC.; KRISHANA TRANS.,
INC.; KRISHNA KRISHNA TRANS., INC.; LARRIEUX CAB, INC.; LELE
CAB, INC.; LEXINGTON TAXI, INC.; MIT CAB, INC.; MARK & S, INC.;
MAS TAXI, INC.; MELCHISEDEK CAB, INC.; MIRKA, INC.; MOGADISHU
CAB, INC.; NAJU, INC.; NELCHERI CAB, INC.; NO NO CAB, INC.; P &
G CAB, INC.; P & P DUMERANT CORP.; PAFOU CAB, INC.; PAPU, INC.;
PAUL CAB, INC.; QUEEN JESSICA CAB, INC.; RAAVI TRANS., INC.; RAI
TRANSPORTATION, INC.; RED CAB OF WORCESTER, INC.; RENEE TAXI,
INC.; RENETTE & FRANCKLYN, INC.; RIOS GON CAB, INC.; ROCK SOLID
& MOMONE, INC.; ROLY CAB, INC.; SASUN CAB, INC.; SATNUM CAB,
INC.; SEA WALL TAXI, INC.; SHANI TAXI, INC.; SUNSET CAB, INC.;
SYMPHONY TAXI, INC.; TT, INC.; TAXI TECHNOLOGY, INC.; TAYLOR
TAXI, INC.; TELFORT CAB, INC.; ULYSSE TRANS. HOLDING, CORP.;
ULYSSE'S CAB, INC.; YO YO CAB, INC.; YOU TOO CAB, INC.; ZICKY
CAB, INC.; 116 CAB, INC.; HANEF TRANS., INC.; TRISTAN & VANESSA
CAB, INC.; BINYAMIN CAB, INC.; CATHUL, INC.; CHRISTOPHER'S CAB,
INC.; DILLONS TRANS., INC.; MARZENEB, INC.; MESHUALEKIA, INC.;
PHATRICKSEY CAB, INC.; YOU AND I CAB, INC.; BENITO & ROSELINE
CAB, INC.; DE LEREBOURS, INC.; LARACINE, INC.; LEYNA CAB, INC.;
MOBARAK CAB, INC.; REHAM CAB, INC.; ROSAMELIA INC.; SJP TAXI,
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INC.; THOMAS FAMILY, INC.; GADL CAB, INC., LIDETA CAB, INC.; KBS
CAB, INC.; MSW TAXI, INC.; MAHNOOR TRANS., INC.; PAL TAXI, INC.;
ROODY'S CAB, INC.; C & G LEASING, INC.; LA DILIGENCE, INC.; HARE
KRISHNA TRANS., INC.; JOJO E.M. CAB, INC.; JANE MARY CAB, INC.;
JEFFREY & TANISHA, INC.; JEHOVAH JUREH, INC.; KALKAT CAB, INC.;
HIRAM'S TAXI, INC.; STEFAN TUROLSKI; DEFER CAB, INC.; SHREE
GANESH CAB, INC.; CADOUX TAXI, INC.; DERUKA TAXI, INC.; FAFOU
CAB, INC.; M AND J CAB, INC.; N M R CAB, INC.; NOOR CAB, INC.;
PAUL PARAS; PUNJAB TRANS., INC.; SWEET ROSE TRANS., INC.; TAJ
TRANS., INC.; TAKE IT EZ CAB, INC.; YOUSSEF, INC.; BETRU AMI
CORP.; CROSSROAD TRANS. INC.; HATTIE CAB, INC.; HIMALAYA, INC.;
IQRA ENTERPRISE, INC.; JASON CAB, INC.; MCG CAB, INC.; MANHAR,
INC.; MICASTA CAB, INC.; NEXT CAB, INC.; PARVATI CAB, INC.;
RODNEY CAB, INC.; SJ CAB, INC.; SATLOUJ, INC.; SEVEN HILLS TAXI,
INC.; TI LOU LOU CAB, INC.; DALUL, INC.; FRANKLIN TAXI, INC.;
LES-MAR TAXI, INC.; BERN. & Y. CAB, INC.; DEBRA CAB, INC.;
EDWARD NOEL, INC.; GOD IS GOOD, INC.; JUDE CAB, INC.; YAHWEH
CAB, INC.; BABA NANAK CAB, INC.; CARLON TRANS., INC.; MATELOTS,
INC.; MEW CAB, INC.; NANCY CAB, INC.; ON Y VA TAXI, INC.; BENBEN
CAB, INC.; BENO CAB, INC.; C.T.P. II, INC.; D Q DONNE CAB, INC.;
KRIPALU TRANS., INC.; NOMA CAB, INC.; OROW, INC.; RADHA SOAMI,
INC.; REBECCA CAB, INC.; BARAN TRANS., INC.; CAMBRIDGE TAXI,
INC.; J & J TRANSPORTATION, INC.; LE BON BERGER, INC.; NICKY
TRANS, INC.; SAMYR CAB, INC.; SOSTHENE, INC.; W.L.E.J., INC.;
WILLKY-MEDGENE, INC.; DAPHNE TAXI, INC.; ET CAB, INC.; FERN,
INC.; FOUR J'S CAB, INC.; GRAND CANYON, INC.; HARE RAM TRANS.,
INC.; INMAN CAB, INC.; MITACHAL CAB, INC.; NEL & SON, INC.; P.B.
CAB, INC.; RIPERT CAB, INC.; SOUTH SUDAN CORP.; THE 32 SUMMER
ST. CORP.; YAMUNA, INC.; ZUBIR, INC.; EMILY & KELLY CAB, INC.;
GABRIELLE CAB, INC.; KETTERLE CAB, INC.; LOREN CAB, INC.; TWINS
BROTHERS TRANSPORTATION, INC.; VETTE TAXI, INC.; YILMA TRANS.,
INC.; ALICE'S CAB, INC.; G & V & R CAB, INC.; GEORGE'S CAB,
INC.; M & F TRANS, INC.; METAXIA MOTOR, INC.; TUNG'S CAB, INC.;
TUTUN CAB, INC.; CAF TAXI, INC.; EMILY'S TAXI, INC.; GCF TAXI,
INC.; LEGENDS TRANS, INC.; MATTHEW'S TAXI, INC.; WARSAI, INC.;
HEMENWAY TAXI, INC.; IN-TOWN TAXI, INC.; LEANA'S CAB, INC.; MGF
TAXI, INC.; MILA CAB, INC.; OMF TAXI, INC.; OLIVIA'S TAXI, INC.;
REEL CAB, INC.; YURY TAXI, INC.; BRISTOL CAB, INC.; DORCAR CAB,
INC.; ERITREA TRANS, INC.; JESSICA T, INC.; MALVINA TAXI, INC.;
WOODSIDE TAXI, INC.; BRENDA TAXI, INC.; CYNTHIA CAB, INC.; FARES
CAB, INC.; J&D TAXI, INC.; LUBA CAB, INC.; SHAHIN TAXI, INC.;
CARLY CAB, INC.; DEPENDABLE DISPATCH, INC.; NU-CHECKER, INC.;
CECILARD TRANSPORTATION, INC.; TARA TRANSPORTATION, INC.; AAA
CAB, INC.; ABBAS CAB, INC.; E.D.R. CAB, INC.; CAMBRIDGE
TRANSPORTATION SERVICES, INC.; FILLETTE CAB, INC.; SYCOONE TAXI,
INC.; TAXI MANAGEMENT, INC.; JEFF & NAYAMA, INC.; MYRA, INC.;
SAINT, INC.; STEP BY STEP CAB, INC.; ANGE & MICHELLE, INC.;
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ANDREW J. CAB, INC.; ADDIS ABABA, INC.; ALGANES CAB, INC.;
MALDEN TRANSPORTATION, INC.; PEGM TRANSPORTATION, LLC; MEDFORD
TRANS., INC.; EVERETT CAR SERVICE, INC.; TALKD TRANSP., INC.;
ARGON CAB, INC.; CEDAR CAB, INC.; COBALT CAB, INC.; EVERGREEN
CAB, INC.; HARVEST CAB, INC.; MONUMENT LEASING, INC.; MYSTIC
LEASING, INC.; PEARL CAB, INC.; SAM'S CAB, INC.; TRITON CAB,
INC.; UNION CAB, INC.; VEITA CAB, INC.; WEST END LEASING, INC.;
GREEN CAB CO., INC.; FLEET LEASING, INC.; GREENWAY LEASING,
INC.; HARBOR LEASING, INC.; HARVEST CAB, INC.; GREEN AUTOMOTIVE,
INC.; COUNTRY CLUB TRANS., INC.; LOCHMERE TAXI, INC.; MT.
PLEASANT TAXI, INC.; CINEMA TAXI, INC.; GREEN & YELLOW TNC;
ALEWIFE TRANS. CO., INC.; EASTERN TRANS., INC.; SILCOR TRANS.
CO., INC.; ORMOND TRANS. CO., INC.; SOMERVILLE TRANS. CO., INC.;
BABS CAB, INC.; TAXI MAINTENANCE, INC.; MAYBERRY TAXI, INC.,
Plaintiffs,
v.
UBER TECHNOLOGIES, INC.; RASIER, LLC,
Defendants, Appellees,
TRAVIS KALANICK; GOVERNOR CHARLES BAKER; COMMONWEALTH OF
MASSACHUSETTS; GARRETT CAMP,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson, Circuit Judge,
and Katzmann, Judge.*
Michelle H. Blauner, with whom Edward F. Haber, Ian J.
McLoughlin, Adam M. Stewart, Patrick J. Vallely, and Shapiro Haber
* Of the United States Court of International Trade, sitting by
designation.
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& Urmy LLP were on brief, for appellants.
Karen L. Dunn, with whom Adam S. Gershenson, Timothy W. Cook,
Elizabeth B. Prelogar, Paul, Weiss, Rifkind, Wharton & Garrison
LLP and Cooley LLP were on brief, for appellees.
August 6, 2021
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KATZMANN, Judge. Once upon a time, indeed, not all that
long ago, the short route transportation market in Boston, as well
as in many other cities, was dominated by taxicabs, which typically
would be hailed on the street by riders. In Boston, in a highly
regulated system, taxicab operators are required to possess a
license known as a "taxicab medallion," maintain a properly
equipped and functioning taxicab, display a carriage license at
all times, belong to an approved dispatch service or "radio
association," and refrain from cell phone use while operating a
taxicab. Beginning in 2013, in Boston and surrounding communities
as well as many other cities, this traditional taxicab business
model was upended and the short route transportation industry
radically transformed, with the entrance of transportation network
companies ("TNCs") such as Uber, Lyft, and Sidecar. The TNCs
provide a digital tool for requesting private vehicle-for-hire by
users who download a free mobile software application ("app").
Users who open the app on their mobile phones are shown a map of
their location or designated pick-up point and the available
affiliated vehicles in that vicinity. These phone- and app-based
for-hire transportation services, relying on drivers who provide
pre-arranged transportation services in their own private
vehicles, quickly overtook taxicabs in popularity. The TNCs did
not operate in accord with the rules governing taxicabs, and they
did not incur the concomitant licensing and operating costs borne
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by taxi medallion holders and duly licensed fleet owners. In
Boston in 2013, there were no citywide regulations specifically
addressing TNCs. It would not be until August 5, 2016, that the
Massachusetts legislature authorized the operations of TNCs like
Uber and also preempted municipalities from regulating TNCs
through local regulation.
This case focuses on the period between June 4, 2013
(when UberX began operating) and August 5, 2016, a time of
regulatory uncertainty and uncertain legal status for Uber and
other TNCs. It involves a dispute brought in United States
District Court in Boston by the plaintiffs, owners of the companies
who dispatch, lease and maintain taxicab vehicles and own the taxi
medallions (collectively "Anoush Cab"), against defendant Uber
Technologies, Inc. (collectively, with its wholly-owned subsidiary
Rasier LLC, "Uber"), a corporation that, as noted, has run a
competing car service connecting drivers and travelers through its
mobile phone application. Anoush Cab alleged that Uber competed
unlawfully in the on-demand, ride-hail ground transportation
market in and around Boston. Claiming damages of more than $122
million, Anoush Cab alleged that in violation of Boston
regulations, Uber caused asset devaluation by (1) competing
unfairly under Massachusetts General Law Chapter 93A ("Chapter
93A"); (2) violating the common law for unfair competition; and
(3) aiding and abetting a conspiracy to engage in unfair
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competition. After a bench trial, the district court issued final
judgment against the plaintiffs on all their claims. Some now
appeal. In considering that appeal, our charge is not to determine
or opine on whether the introduction of TNCs like Uber was a good
thing for the broader transportation industry or for the public at
large. We are not called upon to determine whether Uber was
virtuous in its conduct. Our responsibility is more narrow -- to
determine whether Uber competed unfairly in violation of statutory
and common law prohibitions governing the commercial marketplace.
We conclude that the district court's judgment should be sustained.
I. BACKGROUND
A. Facts
We recite the facts as found by the district court, after
considering the evidence presented at the bench trial, in a
thorough Memorandum of Decision ("Decision"), Malden Transp., Inc.
v. Uber Techs., Inc., 404 F. Supp. 3d 404 (D. Mass. 2019) ("Malden
III").
The Anoush plaintiffs-appellants ("plaintiffs") are
thirty-four corporations in the business of leasing City of Boston
taxicabs (and medallions that authorize their use) to independent
drivers. All thirty-four corporations are owned and operated by
the Tutunjian family which collectively controls 362 medallions.
The plaintiffs' taxicabs are branded under the name "Boston Cab."
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Defendant-appellee Uber is a Delaware corporation with
its principal offices in San Francisco, California. It is a
technology company that, inter alia, uses an app to match up
potential riders with drivers seeking customers for prearranged
transportation. Uber began providing transportation services in
Massachusetts in 2011, well before the launch of its disputed
ridesharing or peer-to-peer ("P2P") service, UberX P2P. As has
been noted, defendant-appellee Rasier is a wholly owned subsidiary
of Uber. References to "Uber" operating as a TNC apply equally to
Rasier.
1. Regulatory Framework
Historically, the City of Boston has regulated taxis
under a set of municipal rules, ordinances and regulations ("Taxi
Rules") and the Boston Police Commissioner ("the Commissioner")
has the authority to regulate hackney carriages and stands. The
Commissioner may delegate his authority to the Inspector of
Carriages, who is the Commander of the Hackney Carriage Unit ("HCU"
or "Hackney Unit"). The Hackney Unit has approximately twelve
assigned police officers but typically only two of those officers
serve on the street during any one shift.
In 2008, the Commissioner issued the Hackney Carriage
Rules and Flat Rate Handbook ("Rule 403"), which regulates hackney
carriage fares, medallions and hackney licenses, among other
things. Rule 403 defines a "hackney carriage" as "[a] vehicle
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used or designed to be used for the conveyance of persons for hire
from place to place within the city of Boston . . . . Also known
as a taxicab or taxi."
Rule 403 sets forth leasing and shift rates and taximeter
rates. It establishes various vehicle and driver requirements for
hackney carriages, including that each vehicle have a taxi
medallion, be driven by a licensed hackney carriage driver and
bear evidence of membership in a radio dispatch association. Rule
403 also recognizes Boston's Vehicle for Hire Ordinance ("the
Boston Ordinance") which provides, in relevant part: "no person,
firm, or corporation driving or having charge of a taxicab or other
private vehicle shall offer the vehicle for hire for the purposes
of transporting, soliciting and/or picking up a passenger or
passengers unless said person is licensed as a hackney driver and
said vehicle is licensed as a hackney carriage by the Police
Commissioner." Boston, Mass. Mun. Code ch. 16 § 15.05(a) (2021).
From 2007 to 2008, the Hackney Unit issued tickets to
unlicensed vehicles engaged in street hails (in violation of the
Boston Ordinance), but not to vehicles conducting prearranged
rides, regardless of whether the vehicles had livery plates.
Indeed, the Commander of the Hackney Unit informed the Boston
Police Commissioner and the Civilian Director of Hackney Licensing
of the Hackney Unit's policy of not enforcing Rule 403 with respect
to prearranged livery rides. The Commander of the Hackney Unit,
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from January 2013 to May 2014, instructed his officers not to
ticket ridesharing vehicles unless they were involved in street
hails.
2. Nelson\Nygaard Report
In 2013, the Boston Globe ran a series of articles on
the Boston taxi industry. Following that publication, Mayor Thomas
Menino ("Mayor Menino") commissioned the Nelson\Nygaard Boston
Taxi Consultant Report ("the Report").
Although Uber declined to participate in the preparation
of the Report, the Commander of the Hackney Unit asked the drafters
of the Report to address how the Hackney Unit should regulate
ridesharing services such as those provided by TNCs. The Report,
which was published in October 2013 (four months after Uber
launched UberX P2P), concludes that TNCs and livery vehicles are
not regulated and do not have a regulatory body providing
oversight. It further recommended that the Mayor establish an
independent Taxi Advisory Committee ("TAC").
Senior management at Uber read the Report when it was
issued in October 2013 and concluded that it affirmed Uber's
understanding that the Taxi Rules did not apply to ridesharing.
3. Ridesharing Competitors and UberX P2P
In March 2013, Sidecar, a competitor to Uber, began the
first P2P ridesharing program in Boston. Uber's General Manager
in Boston reported to the company's Head of Global Public Policy
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that the Civilian Director of the Hackney Unit had purportedly
stated that there was "almost no chance" that the Taxi Rules would
be enforced against Sidecar. That led senior Uber executives in
Boston to believe that the Taxi Rules would not likely be enforced
against Uber.
In April 2013, Uber publicly issued its national
corporate policy ("the White Paper") with respect to P2P
ridesharing in cities where regulatory enforcement was ambiguous.
In the White Paper, Uber's then-CEO stated that "Uber will
aggressively roll out ridesharing on its existing platform in any
market where the regulators have given tacit approval. . . . If
a competitor is operating for 30 days without direct enforcement
against transportation providers, then Uber will interpret that as
'tacit approval' of ridesharing activity."
In May 2013, Lyft, another Uber competitor began its P2P
ridesharing service in Boston. Following Lyft's entry into the
Boston market, Uber accelerated its plan to launch its own P2P
service, UberX P2P, which is the disputed conduct at issue in this
case. At that time, Uber's Boston General Manager was familiar
with the Boston Ordinance and was specifically aware of the fact
that violations could result in $500 fines.
On May 30, 2013, Uber's Head of Global Public Policy
emailed Mayor Menino's Chief of Staff a letter which stated that
Uber was "eager to participate in this innovative model" but only
-13-
"as long as regulators allow this type of transportation." He
requested that the City keep Uber informed of any "changes to
Boston's current policy of non-enforcement." That same day Uber's
Head of Global Public Policy, having spoken with the Mayor's Chief
of Staff, reported back to his Uber colleagues that the Chief of
Staff said, "just launch." The following day, Uber's Head of
Global policy asked the Chief of Staff to let Uber know if there
were to be "any impending change to the City's interpretation or
application of existing law in this area."
The City's lack of enforcement of the Taxi Rules against
Uber competitors, public statements made after the launch, and the
testimony from hackney officers collectively corroborated Uber's
understanding of its communications with City officials prior to
the launch of UberX P2P. Uber launched UberX P2P on June 4, 2013.
4. Requirements for UberX P2P Drivers
For P2P, Uber did not require its drivers to have a
commercial hackney license, a commercial livery license or a
hackney medallion. Drivers on the so-called "P2P platform" could
drive their personal vehicles with a personal driver's license and
a valid license plate. Those drivers were, however, covered by
Uber's umbrella commercial insurance policy while transporting
riders.
Uber's management knew that its UberX P2P ridesharing
model would save Uber drivers thousands of dollars in fees in
-14-
comparison to taxicab drivers. At the time, the plaintiffs
estimated that the annual cost of leasing a medallion in Boston
was approximately $26,000, weekly radio association fees ranged
from $20 to $88 and one-time retrofitting costs were around $3,600.
By avoiding such fees, Uber expected its drivers to earn thirty
percent more income than comparable taxicab drivers.
Unlike taxis, which are subject to fixed taxi fare rates,
Uber set variable prices for how much a customer would be charged
per ride. Uber engaged in "surge pricing," whereby Uber would
charge more when customer demand was higher than driver supply.
Unlike taxis, Uber was able to increase prices during periods of
high demand and decrease them during periods of low demand.
In October 2013, Uber advertised to its customers that
UberX P2P in Boston was thirty percent cheaper than comparable
taxi rides.
5. Ticketing and Government Interactions
In July 2013, Uber became aware that some of its drivers
were receiving citations from local law enforcement. During the
conduct period, out of the millions of Uber trips, Uber drivers
received 497 tickets, of which 277 cited the Boston Ordinance.
Most of those tickets were issued between May 2014 and December
2014. In 2015, forty-six tickets were issued under the Boston
Ordinance, but in 2016, only three tickets were issued.
-15-
In response to inquiries from drivers about citations
received, Uber employees never told the drivers that UberX P2P was
illegal. Rather, ticketed drivers were told that the officers
were merely "misinformed" about Uber's commercial insurance policy
and that they would submit the citations to Uber's legal team.
Uber meticulously tracked its drivers' citations throughout the
conduct period.
Uber reimbursed drivers who received tickets for
prearranged rides but did not reimburse any drivers who were cited
for street hails. It did so in order to retain drivers and to
alleviate the cost and hassle of appealing the citations, although
some drivers were successful in appealing citations on their own.
In 2014, the volume of citations reached its peak and
Uber internally expressed serious concern. At the height of it,
the Boston Police Department and the Massachusetts State Police
were issuing tickets in the range of $500 to $20,000 per week.
In April 2014, Uber's Boston General Manager met with
Massachusetts State Police officers overseeing Logan Airport who
stated they would not relent on ticketing until there was a
legislative change. One month later, however, Mayor Marty Walsh
("Mayor Walsh") in response to a caller inquiry on a Boston radio
program stated that the police, and the City, did not have
jurisdiction over Uber.
-16-
Uber management subsequently heard from one of its
lobbyists that Mayor Walsh's Chief of Staff was "dumbfounded" as
to why Uber drivers were being ticketed. He later requested that
Uber provide him with information about the citations and Uber
complied. Uber's General Manager had multiple conversations with
the Chief of Staff about the driver citations and believed that
the Chief of Staff was in the process of stopping the issuance of
citations.
6. Taxi Advisory Committee
In July 2014, Mayor Walsh established the Taxi Advisory
Committee ("TAC") to gather input from stakeholders in the
transportation business to improve the taxi industry and to explore
how the City of Boston might regulate other kinds of vehicles for
hire. TNCs such as Uber and Lyft were invited to participate,
along with members of the taxi industry, Massachusetts State
Police, the Boston Police Department Hackney Unit and other City
of Boston officials. Uber's General Manager participated in the
TAC on behalf of Uber.
Although no City of Boston official ever told Uber that
it was not allowed to operate in Boston, in November 2014, Uber's
then-General Manager told her Uber colleagues that the Chair of
the TAC and policy advisor to the Mayor made reference to the Taxi
Rules during a conversation about how ridesharing may violate them.
In December 2014, she testified at a Boston City Council hearing
-17-
on ridesharing. At that hearing, the Chair of the TAC reiterated
that the goal of the TAC was to seek revisions to current
regulations and to explore new regulations applicable to TNCs.
Various Hackney Unit officials testified at the hearing that in
their view Uber was not operating in compliance with the existing
Taxi Rules.
7. BTOA Litigation
In January 2015, the Boston Taxi Owners Association
("BTOA") sued the City of Boston for its nonenforcement of Rule
403. Bos. Taxi Owners Ass'n, Inc. v. City of Boston, 84 F. Supp.
3d 72 (D. Mass. 2015). In its opposition to BTOA's motion for
preliminary injunction, the City of Boston stated that it "has not
enforced Rule 403 against TNCs [and that] the public's interest is
served by a for-hire transportation market full of choices. That
market includes licensed taxicabs as well as buses, the
Massachusetts Bay Transportation Authority ("MBTA"), jitney
carriages, livery vehicles, and TNCs, among other types of
transportation." City Defs.' Opp. To Mot. For Prelim. Inj., No.
15-cv-10100-NMG (D. Mass. Jan. 26, 2015), Dkt 20 at 4, 19 (emphasis
in original).
The district court denied BTOA's motion for preliminary
injunction and Uber followed that litigation closely. BTOA, 84
F.Supp.3d at 82.
-18-
8. Data Sharing Agreement
In January 2015, Uber entered into a data sharing
agreement with the City of Boston. The agreement was designed to
give the City access to information about rides for hire in Boston
for the purposes of traffic control and urban planning, recognizing
that, at that time, there were "tens of thousands of Uber rides on
the streets of Boston every[ ]day."
9. State Regulations
On January 2, 2015, the Massachusetts Department of
Transportation ("MassDOT") issued final regulations with respect
to TNCs, which took effect later that month. The regulations
amended 540 CMR § 2.05 to include a new category of vehicles,
Personal Transportation Network Vehicles ("PTN Vehicles"), which
are defined as "[a] private passenger motor vehicle that is used
by a Transportation Network Company." The regulations also state
that the Massachusetts Department of Public Utilities ("DPU")
"shall act as the licensing authority to which a TNC shall apply
for a certificate to provide TNC services." 50 CMR § 2.05 (2015).
On February 4, 2015, Massachusetts Governor Charlie
Baker ("Governor Baker") issued a press release directing the DPU
to issue a public notice clarifying the status of TNCs in
Massachusetts. Press Release, Charlie Baker and Kathryn Polito,
Governor and Lieutenant Governor, Comm. of Mass., Baker-Polito
Admin. Issues Notice on Transp. Network Companies (TNCs) in Mass.
-19-
(Feb. 4, 2014), https://www.mass.gov/news/baker-polito-
administration-issues-notice-on-transportation-network-
companies-tncs-in. The press release stated that "[t]he issuance
permits TNC drivers to continue operating in the Commonwealth,
while allowing the administration to begin discussions about a
regulatory framework to ensure the enhanced safety of drivers and
riders . . . . But, because a TNC licensing framework must be
developed through legislation, the RMV regulations allow TNC
drivers to use private vehicles for a six-month period, during
which the Baker administration will develop a licensing
framework." Id.
Mayor Walsh was quoted in that same press release as
stating that he would collaborate with Governor Baker on a
comprehensive regulatory framework for TNCs and would share the
City's TAC findings with respect to developing new city policies
for TNCs. Uber representatives understood from the press release
that Mayor Walsh supported the Baker administration in the effort
to create a state-wide regulatory framework for TNCs.
On July 31, 2016, the Massachusetts legislature passed
the Transportation Network Companies Act ("the TNC Act"), Mass.
Gen. Laws ch. 159A ½, which authorizes the operation of TNCs like
Uber and preempts municipalities from independently regulating
them. The statute defines a TNC as an "entity that uses a digital
network to connect riders to drivers to pre-arrange and provide
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transportation." Mass. Gen. Laws ch. 159A ½ § 1. The TNC Act
gives regulatory jurisdiction of TNCs to the DPU and the
Massachusetts Port Authority. See Mass. Gen. Laws ch. 159A ½ § 10
("[N]o municipality or other local or state entity, except the
Massachusetts Port Authority, may . . . subject a [TNC] to the
municipality's or other local or state entity's rates or other
requirements[.]"). Governor Baker signed the TNC Act into law on
August 5, 2016, but it was not to apply retroactively. The
plaintiffs acknowledge that after enactment of the TNC Act, Uber
cannot, as a matter of law, violate the Boston Taxi Rules.
B. Procedural History
The plaintiffs filed suit on January 26, 2017 in Anoush
Cab, Inc. v. Uber Techs., Inc., 17-cv-10142-NMG.1 They alleged
that Uber was liable for common law unfair competition, violations
of Chapter 93A, aiding and abetting, and civil conspiracy, by
virtue of its operation of an illegal P2P ridesharing service
("UberX P2P" or "Uber Ridesharing") from June 4, 2013 to August
4, 2016 ("At-Issue Period") without the licensing required under
Boston's vehicle-for-hire laws.
On December 29, 2017, the district court denied the
defendants' motion to dismiss plaintiffs' claims. Malden Transp.,
Inc. v. Uber Techs., Inc., 286 F. Supp. 3d 264 (D. Mass. 2017)
1 The Anoush action subsequently was consolidated with Malden
Transp., Inc. v. Uber, 16-cv-12538-NMG.
-21-
("Malden I").
On March 5, 2018, the plaintiffs filed an Amended
Complaint. In its Answer, Uber asserted various affirmative
defenses, including that it was not liable because Uber's actions
were permitted practices under Mass. Gen. Laws ch. 93A, § 3
("Permitted Practices Defense") and that the actions of others,
and events unrelated to Uber, constituted intervening and
superseding causes of the plaintiffs' harm ("Superseding Cause
Defense"). Affirmative Defenses Nos. 8, 11.
The plaintiffs and Uber filed cross-motions for summary
judgment concerning Uber's liability. The plaintiffs also moved
for summary judgment on Uber's Permitted Practices and Superseding
Cause Defenses. On July 3, 2019, the district court granted
summary judgment to the plaintiffs on Uber's Permitted Practices
Defense,2 but otherwise denied the cross motions for summary
judgment. Malden Transp., Inc. v. Uber Techs., Inc., 386 F.
Supp. 3d 96 (D. Mass. 2019) ("Malden II"). The district court
stated that at the jury-waived trial, it would consider "[w]hether
Uber acted egregiously when it violated the Taxi Rules in
violation of Chapter 93A;" "[w]hether plaintiffs suffered
economic damages;" "[w]hether Uber's alleged unfairness/egregious
2 Uber moved for reconsideration of the Order granting plaintiffs'
summary judgment on Uber's Permitted Practices Defense. The Court
denied reconsideration after trial. During trial, Uber withdrew
its Superseding Cause Defense.
-22-
conduct caused plaintiffs' damages;" [and] "[w]hether Uber aided
and abetted unfair conduct and/or engaged in a civil conspiracy
to compete unfairly[.]" Id. at 106.
A bench trial was conducted between July 18 and August
2, 2019. On September 6, 2019, the district court issued its
Memorandum of Decision ("Decision") determining that Uber was not
liable to the plaintiffs under Chapter 93A, the common law of
unfair competition, aiding and abetting and conspiracy.3 Malden
III, 404 F. Supp. 3d at 418-26 (COL ¶¶ 1-20, 42-45). The district
court found that "Uber acted in accordance with the standard of
the commercial marketplace" during a period of "regulatory
ambiguity." Id. at 419, 422 (COL ¶¶ 6, 19). The district court
also issued findings of fact that the plaintiffs' damages experts
were unreliable, id. at 416-17 (FOF ¶¶ 72-74), the plaintiffs'
lost profits analysis was unreliable, id. at 418 (FOF ¶¶ 75-76),
and that quite apart from having not proven liability, the
plaintiffs "failed to prove damages with reasonable uncertainty,"
id. at 422-24 (COL ¶¶ 21-30). The plaintiffs now appeal.
II. DISCUSSION
The plaintiffs contend that the district court erred as
a matter of law in holding that Uber's conduct was not unfair
within the meaning of Chapter 93A. They argue that the district
3 The district court's Findings of Fact are cited herein as "FOF"
and Conclusions of Law are cited herein as "COL."
-23-
court applied the wrong legal standards and relied upon legally
impermissible factors when it concluded that Uber did not violate
Chapter 93A and was not liable for unfair practices and methods of
competition thereunder. They also claim that the district court
erred in rejecting their asserted common law unfair competition
claims, and conspiracy and aiding and abetting claims. Finally,
they contend that the district court erred in concluding that they
had failed to prove damages with reasonable certainty. We affirm.
A. Jurisdiction and Standard of Review
The district court had diversity jurisdiction pursuant
to 28 U.S.C. § 1332 as the plaintiffs are Massachusetts
corporations, defendants Uber Technologies, Inc. and Rasier LLC
are foreign corporations doing business in Massachusetts, and the
amount in controversy exceeds $75,000.
"As a federal court sitting in diversity, we look to
state law, as articulated by the Supreme Judicial Court of
Massachusetts, for the substantive rules of decision." Dumont v.
Reily Foods Co., 934 F.3d 35, 40 (1st Cir. 2019) (citing Shaulis
v. Nordstrom, Inc., 865 F.3d 1, 6 (1st Cir. 2017)). Following a
bench trial on a Chapter 93A claim, we review the trial court's
"legal conclusions de novo and factual findings for clear error."
LimoLiner, Inc. v. Dattco, Inc., 919 F.3d 86, 90 (1st Cir. 2019);
see also Baker v. Goldman, Sachs & Co., 771 F.3d 37, 49 (1st Cir.
2014) (quoting Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 34 (1st
-24-
Cir. 2007)). A ruling that conduct violates Chapter 93A "is a
legal, not a factual, determination." Incase Inc. v. Timex Corp.,
488 F.3d 46, 56 (1st Cir. 2007) (quoting R.W. Granger & Sons, Inc.
v. J & S Insulation, Inc., 745 N.E.2d 668, 675–76 (Mass. 2001));
Baker, 771 F.3d at 49 (quoting R.W. Granger, 745 N.E.2d at 675).
"Although whether a particular set of acts, in their factual
setting, is unfair or deceptive is a question of fact, the
boundaries of what may qualify for consideration as a 93A violation
is a question of law." Incase Inc., 488 F.3d at 57. (quoting
Schwanbeck v. Fed.-Mogul Corp., 578 N.E.2d 789, 803–04 (Mass. App.
Ct. 1991), rev'd on other grounds, 592 N.E.2d 1289 (Mass. 1992));
see also Baker, 771 F.3d at 49. "Under the clear error standard
of review, we accept the district court's findings of fact unless,
after careful consideration of the entire record, 'we are left
with the definite and firm conviction that a mistake has been
committed.'" Baker, 771 F.3d at 49 (quoting Vinick v. United
States, 205 F.3d 1, 6 (1st Cir. 2000)). "If the district court's
factual conclusions are based on an erroneous view of the
controlling law, however, 'the case for deference vanishes,' and
we review those conclusions de novo." Id.B. The District Court Did Not Err in Its Chapter 93A Ruling
The plaintiffs contend that the district court
erroneously applied an outdated "rascality" test and inapplicable
"egregiousness standard," which they assert "has no place in
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Chapter 93A claims premised upon established unfair competition
standards." We first review the legal landscape. We then address
whether the district court applied the correct legal standard to
the evidence. Finally, we assess whether the district court's
determination that Uber's conduct did not violate Chapter 93A was
reasonable.
1. Elements of Chapter 93A
Chapter 93A "'is a statute of broad impact' that
prohibits 'unfair methods of competition' and 'unfair or deceptive
acts or practices in the conduct of any trade or commerce.'" Exxon
Mobil Corp. v. Attorney Gen., 94 N.E.3d 786, 791 (Mass. 2018)
(quoting Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 772 (Mass.
1975)); see also LimoLiner, Inc., 919 F.3d at 90. Chapter 93A
states: "Unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are
hereby declared unlawful." Mass. Gen. Laws ch. 93A, § 2(a) (2019).
Unfair methods of competition and unfair or deceptive acts or
practices are not defined in Chapter 93A. "[I]n construing
paragraph (a). . ., the courts will be guided by interpretations
given by the Federal Trade Commission [FTC] and the Federal Courts
to section 5(a)(1) of the Federal Trade Commission Act [FTC Act]
-26-
(15 U.S.C. § 45(a)(1)), as from time to time amended."4 Mass.
Gen. Laws ch. 93A § 2(b) (2019). Chapter 93A also states that
"[t]he attorney general may make rules and regulations
interpreting the provisions of subsection 2(a) of this chapter."
Id. 2(c). The statute provides a cause of action to "[a]ny person
who engages in the conduct of any trade or commerce and who suffers
any loss of money or property . . . as a result of the use or
employment by another person who engages in any trade or commerce
of an unfair method of competition or an unfair or deceptive act
or practice declared unlawful by section two . . . ." Id. § 11.
A successful Chapter 93A § 11 claim thus has three elements: (1)
the defendant engaged in an unfair method of competition or
committed an unfair deceptive act or practice; (2) a loss of money
or property was suffered; and (3) the defendant's unfair or
deceptive method, act or practice caused the loss suffered. Auto
Flat Car Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066, 1074–
75 (Mass. 2014). The plaintiff must "establish both factual
causation and proximate causation." LimoLiner, Inc., 919 F.3d at
90 (quoting Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st
Cir. 2016)). If successful, a plaintiff is entitled to actual
damages, or double or treble damages if the defendant's violation
4 The FTC Act broadly prohibits "[u]nfair methods of competition
. . . and unfair or deceptive acts or practices." 15 U.S.C.
§ 45(a)(1)).
-27-
of § 2 was willful or knowing. Mass. Gen. Laws ch. 93A, § 11
(2019).
The plaintiffs alleged in Count I of their amended
complaint that "[b]y unlawfully operating their transportation
services in Boston, and engaging in the acts and practices alleged
herein, Defendants have engaged in unfair methods of competition
in violation of M.G.L. c.93A, § 2." Although the Supreme Judicial
Court has noted that in analyzing what constitutes unfair methods
of competition under Chapter 93A, the court looks to
interpretations by the FTC and the federal courts of section
5(a)(1) of the FTC Act, including statutes prohibiting
anticompetitive conduct, see Ciardi v. F. Hoffmann La Roche, Ltd.,
762 N.E.2d 303, 309-10 (Mass. 2002), in the district court the
plaintiffs did not litigate their case by reference to those
interpretations. Rather, the litigation on the question whether
Uber's conduct was unfair relied upon the universe of cases arising
from cases proceeding under the unfair or deceptive practices prong
of Chapter 93A.
Chapter 93A creates "broad new rights, forbidding
conduct not previously unlawful under the common law of contract
and tort or under a prior statute." Linkage Corp. v. Trs. of Bos.
Univ., 679 N.E.2d 191, 209 (Mass. 1997) (quoting Dodd v. Commercial
Union Ins. Co., 365 N.E.2d 802, 806 (Mass. 1977)). "A
determination that conduct is unfair or deceptive is not dependent
-28-
on traditional tort or contract theories and represents a finding
under a statute that creates new substantive rights." Id.;
Drakopoulos v. U.S. Bank Nat'l Ass'n, 991 N.E.2d 1086, 1096 n.19
(Mass. 2013) ("Violation of a specific statute that does not itself
permit private recovery may give rise to a private claim under
c.93A if the violation amounts to an unfair method of
competition.") (quoting Whitehall Co. Ltd. v. Merrimack Valley
Distrib. Co., 780 N.E.2d 479, 483 (Mass. App. Ct. 2002)). To prove
that a covered party has engaged in an "unfair or deceptive act or
practice," it is "neither necessary nor sufficient that a
particular act or practice violate common or statutory law." Mass.
Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47,
69 (1st Cir. 2009) (citing Kattar v. Demoulas, 739 N.E.2d 246, 257
(Mass. 2000)). That is to say, the fact that conduct violates
statute or common law does not necessarily mean that it is "unfair
or deceptive" so as to trigger liability under Chapter 93A. Id.On the other hand, conduct that does not violate statute or common
law is not necessarily exempt from liability under Chapter 93A.
Id.; see Renovator's Supply, Inc. v. Sovereign Bank, 892 N.E.2d
777, 787 (Mass. App. Ct. 2008).
As noted, Chapter 93A does not define what constitutes
an "unfair or deceptive practice." The Supreme Judicial Court has
observed that "[s]uch a definition would be impossible, because,
as the Appeals Court aptly noted, '[t]here is no limit to human
-29-
inventiveness in this field.'" Kattar, 739 N.E.2d at 257 (first
citing Levings v. Forbes & Wallace, Inc., 396 N.E.2d 149, 153
(Mass. App. Ct. 1979); and then quoting H.R. Rep. No. 63-1142
(1914) (Conf. Rep.)). Although section 2(b) of Chapter 93A states
that courts are to be guided by the Federal Trade Commission and
federal court interpretations of the Federal Trade Commission Act,
unfair or deceptive conduct is best discerned "from the
circumstances of each case." Id. (quoting Comm. v. DeCotis, 316
N.2.2d 748, 754 (Mass. 1974)). Section 11 "does not contemplate
an overly precise standard of ethical or moral behavior" but rather
implies "the standard of the commercial marketplace." Ahern v.
Scholz, 85 F.3d 774, 798 (1st Cir. 1996) (quoting Shepard's
Pharmacy, Inc. v. Stop & Shop Cos., 640 N.E.2d 112, 115 (Mass.
App. Ct. 1994)). "The courts are not invited by the statute to
punish every departure from 'the punctilio of an honor the most
sensitive', but they may enforce standards of behavior measurably
higher than perfidy." Doliner v. Brown, 489 N.E.2d 1036, 1040
(Mass. App. Ct. 1986) (Kaplan, J.) (quoting Meinhard v. Salmon,
164 N.E. 545, 546 (N.Y. 1928)).
The Massachusetts courts have wrestled with the
description of unfair conduct, the first element of a Chapter 93A
claim, for decades. Because the genealogy of the governing Chapter
93A legal standard informs our analysis of plaintiffs' claim of
error, we trace it, as we did in Baker, 771 F.3d at 50–51. The
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Chapter 93A unfairness test was first articulated in PMP Assocs.,
Inc. v. Globe Newspaper Co. in 1975 and became known as the "PMP"
test. 321 N.E.2d 915 (Mass. 1975). There the Supreme Judicial
Court held that to establish an unfair trade practice under Chapter
93A, three factors must be present: the practice must (1) be
"within at least the penumbra of some common-law, statutory, or
other established concept of unfairness;" (2) be "immoral,
unethical, oppressive, or unscrupulous"; and (3) "cause[ ]
substantial injury to consumers (or competitors or other
businessmen)." Id. at 917.
Four years later, in 1979, faced with the question
whether a breach of contract could give rise to liability under
Chapter 93A § 11, Justice Kass of the Massachusetts Appeals Court
crafted the "rascality test" in Levings, 396 N.E.2d at 153, which
provided that: "[t]he objectionable conduct must attain a level of
rascality that would raise an eyebrow of someone inured to the
rough and tumble of the world of commerce."5 As his colleague
Justice Kaplan would comment, "[w]e tried to suggest a mood,
although we could not prescribe a rule[.]" Doliner, 489 N.E.2d at
1040. In 1992, the Appeals Court, again per Justice Kass, further
5 Justice Kass was a renowned wordsmith. See Bryan Marquard,
Rudolph Kass, Judge Whose Writing Flair Illuminated Legal
Principles, Dies at 90, Boston Globe, June 13, 2021,
https://www.bostonglobe.com/2021/06/13/metro/rudolph-kass-judge-
whose-writing-flair-illuminated-legal-principles-dies-90/.
-31-
ruled that successful invocation of Chapter 93A in a breach of
contract case required that the conduct have "an extortionate
quality that gives it the rancid flavor of unfairness." Atkinson
v. Rosenthal, 598 N.E.2d 666, 670 (Mass. App. Ct. 1992). In 1995,
the Supreme Judicial Court of Massachusetts supplanted both
phrases -- that is, "level of rascality" and "rancid flavor of
unfairness" -- choosing instead to "focus on the nature of
challenged conduct and on the purpose and effect of that conduct
as the crucial factors in making a [Chapter 93A] fairness
determination." Mass. Emp'rs Ins. Exch. v. Propac-Mass, Inc., 648
N.E.2d 435, 438 (Mass. 1995) (citing PMP Assocs., Inc., 321 N.E.2d
at 917). We noted Massachusetts' departure from this language in
Baker, a negligence and negligent misrepresentation case, where we
observed that after Propac-Mass the Supreme Judicial Court has
held that "mere negligence," is not sufficient for a violation of
Chapter 93A, instead requiring "something more" -- namely "extreme
or egregious" negligence. 771 F.3d at 51 (first citing Klairmont
v. Gainsboro Rest., Inc., 987 N.E.2d 1247, 1257 (Mass. 2013); and
then citing Marram v. Kobrick Offshore Fund, Ltd., 809 N.E.2d 1017,
1032 (Mass. 2004)). Accordingly, "our Circuit has . . . followed
the Massachusetts courts' lead in using the term 'egregious' to
state the standard of Chapter 93A liability." Id. (collecting
cases); see also Bank of Am., N.A. v. Prestige Imports, 917 N.E.2d
207, 229 (Mass. App. Ct. 2009)("A 'breach of a legal obligation
-32-
under commercial law, without more, does not amount to an unfair
or deceptive act under G.L. c. 93A.'")(quoting Framingham Auto
Sales, Inc. v. Workers' Credit Union, 671 N.E.2d 963, 965 (Mass.
App. Ct. 1996)). Occasionally, the Massachusetts courts and the
First Circuit have noted "rascality" in reference to the Chapter
93A extreme or egregious standard. See, e.g., Peabody Essex
Museum, Inc. v. U.S. Fire Ins. Co., 802 F.3d 39, 54 (1st Cir. 2015)
(first citing Baker, 771 F.3d at 49–51; then citing Zabin v.
Picciotto, 896 N.E.2d 937, 963 (Mass. App. Ct. 2008)). Those cases
do not diverge from the Chapter 93A principle that "something more"
and rising to the level of extreme or egregious conduct is required
for a successful Chapter 93A claim. See Baker, 771 F.3d at 51-52.
2. The District Court's Statement of The Chapter 93A Standard
In the proceedings below, the plaintiffs contended, and
proposed as a Conclusion of Law for the district court, that
"Uber's violation of the Boston Rules falls within the penumbra of
a common law, statutory or other established concept of unfairness
that c. 93A's prohibition of unfair competition is designed to
remedy. Malden [I], 286 F. Supp. 3d at 274." Anoush Plaintiffs'
Proposed Conclusions of Law ("Proposed Conclusions of Law"), ¶ 316
(citation in original). The plaintiffs also asked the district
court to determine that "Uber's unlicensed competition was
immoral, unethical, oppressive, and/or unscrupulous, and gave Uber
an unfair competitive advantage over taxi owners; in other words,
-33-
it was egregious. Plaintiffs presented at trial multiple,
independent strands of evidence, each of which confirm Uber's
conduct was egregious, and when considered together, plaintiffs'
evidence of egregiousness is overwhelming." Id. ¶ 321. The
plaintiffs then asked the district court to conclude: "In fact,
both the First Circuit and the Supreme Judicial Court have held
that even 'negligent [conduct] may be so extreme or egregious as
to constitute a violation of Mass. Gen. Laws ch. 93A, § 11. Marram
v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 61 (2004); Baker v.
Goldman Sachs & Co., 771 F.3d 37, 51 (1st Cir. 2014).'" Id. ¶ 322.
In sum, the plaintiffs did not dispute the applicability of the
"egregiousness" standard to the unfair methods of competition
action before the district court, and indeed cited precedent
arising from cases involving unfair and deceptive practices.
Before us, the plaintiffs are debuting a new theory,
arguing that the district court applied an "inapplicable
'egregiousness' standard, which has no place in Chapter 93A claims
premised upon established unfair competition standards." The
plaintiffs' new view runs afoul of two established principles.
First, "[a]n appellant cannot change horses in mid-stream, arguing
one theory below and a quite different theory on appeal." Ahern
v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010). Second, "[i]t is
hornbook law that theories not raised squarely in the district
court cannot be surfaced for the first time on appeal." Ellis v.
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Fidelity Mgmt. Tr. Co., 883 F.3d 1, 8 and n.4 (1st Cir. 1991)
(quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.
1991)). In short, the plaintiffs' new position is not properly
before us.6
6 Although the plaintiffs now assert that in analyzing what
constitutes unfair methods of competition under Chapter 93A, the
court should look to interpretations by the FTC and the federal
courts of section 5(a)(1) of the FTC Act, including statutes
prohibiting anticompetitive conduct, the plaintiffs did not do so
below. The only time they referenced the FTC Act in their Proposed
Conclusions of Law was when presenting federal judicial decisions
in support of the contention that good faith is not a defense to
a determination of liability under Chapter 93A. Proposed
Conclusion of Law ¶ 337. Nowhere in those Proposed Conclusions of
Law did they advance the claim that under the FTC Act and judicial
decisions under the FTC Act, Uber's conduct constituted unfair
methods of competition. For the reasons set forth above, they
cannot assert those theories and claims for the first time on
appeal. We thus do not reach them.
Even so, while cases turn on their own facts, it can be
observed that other jurisdictions have rejected claims of anti-
competitive conduct lodged against Uber based on violations of
federal statutes. Concluding that the federal laws prohibiting
anticompetitive conduct are designed to protect competition, not
competitors, and will be deemed violated where there is harm to
the market, and thereby to the consumer, the Third Circuit rejected
claims that Uber's entrance into the Philadelphia market was anti-
competitive. Phila. Taxi Ass'n, Inc. v. Uber Techs., Inc., 886
F.3d 332, 340 (1st Cir. 2018) ("[I]nundating the Philadelphia
taxicab market with Uber vehicles, even if it served to eliminate
competitors was not anticompetitive. Rather, this bolstered
competition by offering customers lower prices, more available
taxicabs, and high-tech alternatives to the customary method of
hailing taxicabs and paying for rides.")(emphasis in original);
see also Ill. Transp. Trade Ass'n. v. City of Chi., 839 F.3d 594,
597 (7th Cir. 2016) ("Taxi medallions authorize the owners to own
and operate taxis, not to exclude competing transportation
services."). The plaintiffs did not present market evidence at
trial, and apparently were of the view that they did not need to
establish harm to the consumer. Proposed Conclusion of Law ¶ 333
n.9. In any event, we do not reach or address the plaintiffs'
newly and untimely asserted theories and argument.
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However, we do address the plaintiffs' contention that
the district court erroneously applied an outdated "rascality"
standard to assess liability under Chapter 93A. The plaintiffs
mischaracterize the district court's articulation of the standard.
The district court stated that "[s]pecifically, the challenged
misconduct must rise to the level of an extreme or egregious
business wrong, commercial extortion, or similar level of
rascality that raises an eyebrow of someone inured to the rough
and tumble of the world of commerce." What is clear from the
district court's articulation of the governing standard, set forth
in full in the footnote below,7 is that the touchstone of the
7 The district court stated:
Rather, to establish unfairness under Chapter
93A, § 11, plaintiffs must prove that the
alleged unlawful conduct falls within at least
the penumbra of some common-law, statutory, or
other established concept of unfairness; is
immoral, unethical, oppressive, or
unscrupulous; and causes substantial injury to
consumers [or business entities]. Exxon Mobil
Corp. v. Attorney Gen., 479 Mass. 312, 94
N.E.3d 786, 792 (2018); see also Manning v.
Zuckerman, 388 Mass. 8, 444 N.E.2d 1262, 1264
(1983) (noting that "Section 11 provides a
private cause of action to a person who is
engaged in business and who suffers a loss as
a result of an unfair or deceptive act or
practice by another person also engaged in
business") (internal quotations omitted).
Specifically, the challenged misconduct must
rise to the level of an extreme or egregious
business wrong, commercial extortion, or
similar level of rascality that raises an
eyebrow of someone inured to the rough and
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district court's Chapter 93A analysis is extreme or egregious
business conduct. Considered against the legal landscape, the
district judge's explication was not in error.
3. The Application of the Governing Legal Standard to the
Facts
We now turn to the district court's application of the
Chapter 93A standard to the facts as it found them. Under the
prevailing standard, as we will explain, the district court's
findings of fact were not clearly erroneous. The district court
determined:
Although the plaintiff corporations compete
with Uber for riders in the for-hire vehicle
industry, they have failed to prove that Uber,
under the totality of the circumstances,
committed an extreme or egregious wrong when
they launched and continued to operate UberX
tumble of the world of commerce. Peabody
Essex Museum, Inc. v. U.S. Fire Ins. Co., 802
F.3d 39, 54 (1st Cir. 2015) (citing Levings v.
Forbes & Wallace, Inc., 396 N.E.2d 149, 153
(Mass. App. Ct. 1979) (Kass, J.)).
In making that unfairness determination under
§ 11, courts consider the totality of the
circumstances (Duclersaint v. Fed. Nat. Mortg.
Ass'n, 427 Mass. 809, 696 N.E.2d 536, 540
(1998)), which includes the "nature of
challenged conduct and [ ] the purpose and
effect of that conduct" (Peabody Essex Museum,
Inc., 802 F.3d at 54), "the standard of the
commercial marketplace" and "the equities
between the parties, including what both
parties knew or should have known." Ahern v.
Scholz, 85 F.3d 774, 798 (1st Cir. 1996)
(internal citations and quotations omitted).
Malden III, 404 F. Supp. 3d at 418–19 (COL ¶¶ 3–4).
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P2P in Boston, Massachusetts throughout the
conduct period. COL ¶ 5.
Because the City did not inform Uber that it
was forbidden from operating its ridesharing
services and Uber entered the ridesharing
market only after becoming aware of the
operation of other ridesharing companies (such
as Sidecar and Lyft) in Boston without
consistent observance of the Taxi Rules, the
Court concludes that Uber acted in accordance
with the standard of the commercial
marketplace. See Ahern, 85 F.3d at 798. COL ¶
6.
Malden III, 404 F. Supp. 3d at 419.
We conclude that the district court did not err in its
determination that Uber acted in accordance with the standard of
the commercial marketplace. We are persuaded by the court's
marshalling of the facts in reaching its determination, both
regarding Uber's initial entrance and its continuing activities.8
8 The district court reasonably determined, Malden III, 404 F.
Supp. 3d at 413–14, 419–21, that Uber:
Monitored the City's apparent interpretation and
application of the Taxi Rules and the lack of enforcement
against competitors that launched competing services
before Uber, COL ¶ 6;
Published and sent its White Paper -- outlining Uber's
principled approach to entering markets with ridesharing
competitors -- to City Hall, explaining that it viewed
non-enforcement against competitors as a form of
governmental approval prior to launch, COL ¶ 7;
Shared with Mayor Menino's Office its plan to launch
UberX and was told "just launch," id.;
Read the 2013 Nelson/Nygaard Report that concluded TNCs
were not regulated by the Taxi Rules, COL ¶ 10(a);
Listened to Mayor Walsh's interview stating that the
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The district court noted that "[b]y announcing its corporate policy
of tacit regulatory approval and specifically informing Mayor
Menino's office about that new policy (to which the Mayor's Office
responded, 'just launch'), Uber avoided acting 'unscrupulously' or
with the level of 'rascality' necessary to sustain a Chapter 93A
claim." Id. at 419 (COL ¶ 7). Furthermore, "Uber's attempt to
City did not have jurisdiction over Uber and was working
on new regulations, COL ¶ 10(b), (f);
Participated in the City's Taxi Advisory Committee "to
explore how the City might regulate other kinds of
vehicles for hire" like TNCs; FOF ¶ 50; COL ¶ 10(c);
Communicated with Mayor Walsh's Chief of Staff, who was
"genuinely disturbed" about ticketing of prearranged
rides on the Uber platform, which was "contrary to the
understanding of the Mayor," COL ¶ 13;
Followed the Boston Taxi Owners Association case in which
the City opposed the taxi industry's motion for
preliminary injunction to compel the City to enforce
Rule 403 and the Boston Ordinance against Uber, FOF ¶
54; COL ¶ 10(d);
Entered a data-sharing agreement that made the City
aware that there were "tens of thousands of Uber rides
on the streets of Boston every day," FOF ¶ 55;
Read Governor Baker's February 2015 press release that
new statewide regulations "permit[ted] TNC drivers to
continue operating in the Commonwealth," FOF ¶ 58;
Issued jointly with Governor Baker an April 2015 press
release indicating that the regulations "ensure[d]
current [TNC] operations are not disrupted" during a
"Phase-In Period" which "allow[ed] TNC drivers to
operate with private registration and service," FOF ¶
62; COL¶10(f); and
Complied with DOT regulations permitting TNCs to operate
during the Phase-In Period, including obtaining the
required periodic notices from DPU stating that it was
not yet issuing TNC certificates, COL ¶ 10(g).
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clarify the regulatory applicability of the Taxi Rules with the
City prior to the launch and thereafter was sufficiently
transparent and consistent with the standard of the marketplace."
Id. (citing Cablevision of Bos., Inc. v. Pub. Improvement Comm'n
of City of Bos., 184 F.3d 88, 94, 106 (1st Cir. 1999)). We agree
with the district court that the fact "[t]hat the City failed to
take a definitive regulatory position publicly does not render
Uber's response an 'extreme or egregious business wrong.'" Id. at
419-20 (quoting Peabody Essex Museum, 802 F.3d at 54) (COL ¶ 8).
As the district court summarized: "Accordingly, Uber's entry into
the market was not 'unfair' or 'unscrupulous' when Uber 1) was not
the first 'unlawful' entrant, 2) thereafter competed in response
to changing marketplace conditions and 3) sought to inform
regulators that it intended to enter the market." Id. at 420 (COL
¶ 9).
With respect to the post-launch operations, we do not
discern error in the district court's conclusion, supported by a
variety of facts, that Uber "continued to operate in accordance
with statements and actions of government officials" and that "the
continued interaction and ongoing working relationship between
Uber management and City officials make it clear that the City was
aware of Uber's P2P operations but chose not to prohibit it." Id.
(COL ¶¶ 10, 11). While the plaintiffs continue to argue that the
Boston Ordinance citation issued by individual officers to
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individual drivers was evidence of unfair practice by Uber, we
note the district court's finding that "[o]ut of some 29 million
Uber trips taken during the conduct period, 497 citations [less
than 0.001% of all Uber rides] issued to Uber drivers represented
a relatively insignificant violation of the Taxi Rules." Id. at
421 (COL ¶ 12). Moreover, Mayor Walsh had "publicly stated that
the City lacked jurisdiction over Uber" and that when Uber itself
reached out to the Mayor's Chief of Staff, he "was genuinely
disturbed about the officers' continued ticketing of prearranged
rides through the Uber platform, contrary to the understanding of
the Mayor." Id. (COL ¶ 13).
Even accepting that Uber's rides were in violation of
the Taxi Rules, we would note again that an unlawful action is not
a per se violation of Chapter 93A. See Mechs. Nat'l Bank of
Worcester v. Killeen, 384 N.E.2d 1231, 1237 (Mass. 1979) ("[N]ot
every unlawful act is automatically an unfair . . . one under G.L.
c. 93A."). A violation of statutory or common law is not
"sufficient" to constitute a 93A violation. Mass. Eye & Ear
Infirmary, 552 F.3d at 69. Here, the district court reasonably
concluded that in the context of the communications and dealings
with City officials, reflected by both affirmative and tacit
reinforcement of Uber's operation, the conduct could not be
categorized as the "egregious" unfairness that is required by § 11
of Chapter 93A:
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Uber's decision to enter the transportation
market and continue to operate was informed by
a totality of positive statements received
from the City both before and during the
conduct period. It leveraged regulatory
ambiguity, its growing popularity among
consumers, its ability to charge less than
taxis and its knowledge that regulators would
be reluctant to thwart the growth of a popular
consumer product which afforded independent
drivers better hourly wages. That strategy,
while aggressive and disruptive to the for-
hire transportation market, is competition
consistent with the "rough and tumble of the
world of commerce."
Malden III, 404 F. Supp. 3d at 422 (COL ¶ 19) (quoting Peabody
Essex Museum, Inc., 802 F.3d at 54).
The district court noted: "To be clear, the Court does
not conclude that Uber acted altruistically or in the best interest
of the transportation industry as whole." Id. at 421 (COL ¶ 12).
We agree with that observation. We also conclude that based on
the totality of the circumstances, the district court reasonably
determined that the plaintiffs did not prove that defendants acted
with the requisite, heightened standard of unfairness under § 11
of Chapter 93A and therefore the defendants are not liable to the
plaintiffs. Id. at 422.9
9 Although the plaintiffs assert otherwise, the district court
never held "that because Uber had shown that it acted in good faith
it had no liability." Quite to the contrary, the district court,
citing Duclersaint, 696 N.E.2d at 540, stated that the question of
"'good faith' (or the lack thereof)" was not substantively
relevant, but rather was considered for the "purpose of determining
whether Uber's conduct can be found to be 'egregious' in light of
the surrounding circumstances." Malden III, 404 F. Supp. 3d at
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C. The District Court Did Not Err in Rejecting the Common Law
Claims
1. Common Law Unfair Competition
The plaintiffs contend that the district court erred in
dismissing their common law unfair competition claim, alleged in
Count II, that "[b]y unlawfully operating their transportation
services in Boston, without complying with Massachusetts and
Boston laws, Defendants unfairly competed with Plaintiffs." We
disagree.
The defendants note that the district court determined
that the plaintiffs did "not distinguish between the legal standard
for their common law and statutory [i.e. 93A] claims." Malden II,
286 F. Supp. 3d at 273 n.2. They point to various pleadings by
the plaintiffs which might very well have led the district court
to so find. The defendants argue that having represented below
that that the claims were coextensive, the plaintiffs cannot now
claim on appeal that the district court erred by concluding that
because "plaintiffs have not proven their Chapter 93A claim, their
common law claim for unfair competition fails as well." Malden
III, 404 F. Supp. 3d at 426 (COL ¶ 42); see P.R. Hosp. Supply,
421 (COL ¶ 14). Similarly, the district court stated that
"evidence offered by Uber that it acted consistently with
government representations is not considered by the court as a
'state of mind' or 'reliance' defense to unfairness, as plaintiffs
assert." Id. at 422 (COL ¶ 18). We conclude that the district
court's determinations were properly drawn from the totality of
the circumstances.
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Inc. v. Bos. Sci. Corp., 426 F.3d 503, 505 (1st Cir. 2005) (quoting
Austin v. Unarco Indus., Inc., 705 F.2d 1, 15 (1st Cir. 1983))
("[A] party may not appeal from an error to which he contributed,
either by failing to object or by affirmatively presenting to the
court the wrong law."). The plaintiffs, however, assert that it
was not their position that the Chapter 93A and unfair competition
claims were coextensive. Rather, they contend that they had argued
that Uber's unlicensed competition in violation of legislated
licensing requirements which caused the plaintiffs' injury,
without more, established Uber's liability for unfair competition.
They point to their Proposed Conclusion of Law, which stated: "'bad
faith,' egregiousness, or any other form of unfairness aside from
competing without a license against a licensed competitor, is not
an element of a claim for common law unfair competition." Proposed
Conclusion of Law ¶ 378.
We need not resolve these dueling perceptions.
Addressing the merits, we are not persuaded by the plaintiffs'
argument that Uber is liable for unfair competition because it
violated statutes enacted to protect the plaintiffs from
unauthorized competition. The plaintiffs' reliance on Mass. Soc.
of Optometrists v. Waddick, 165 N.E.2d 394 (Mass. 1960), is
misplaced. There, in rejecting an unfair competition claim brought
by practicing optometrists regarding the unlicensed practice of
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opticians, the Supreme Judicial Court quoted Restatement (First)
of Torts § 710:
One who engages in a business or profession in
violation of a legislative enactment which
prohibits persons from engaging therein,
either absolutely or without a prescribed
permission, is subject to liability to another
who is engaged in the business or profession
in conformity with the enactment, if, but only
if, (a) one of the purposes of the enactment
is to protect the other against unauthorized
competition, and (b) the enactment does not
negative such liability.
Id. at 395-96 (emphasis added). In the case before us, the
relevant question is whether taxicab legislation, and Taxi Rule
403 invoked by the plaintiffs, are intended to protect against
unauthorized competition. While protection from competition need
not be the only purpose, the plaintiffs have not shown that the
taxicab regulations allegedly violated by Uber were enacted to
protect against unauthorized competition. Indeed, in a case
involving taxicab stands, the Supreme Judicial Court had occasion
to determine the purpose of the statutory limitation on Boston
hackney licenses. See Town Taxi Inc. v. Police Comm'r of Bos.,
387 N.E.2d 129 (Mass. 1979). Reviewing the legislative history,
including the Report of the Special Commission on Licensing of
Taxicab Stands in Boston from 1930, the Supreme Judicial Court
noted that the initial enacted statute deleted a limitation on
licenses that had been inserted in response to the Special
Commission's recommendation that the number of licenses be limited
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to "prevent 'unreasonable and destructive competition.'" Id. at
134-35 (citation omitted). Three years later, the Legislature
authorized the Boston Police Commissioner to limit the number of
licenses on a different ground -- for "public convenience and
necessity." Id. at 135. In short, given the stated regulatory
purpose of "public convenience and necessity," and their inability
to point to a legislative grant to restrain competition, plaintiffs
cannot find support from § 710, referenced in Waddick, for their
common law claim.10 165 N.E.2d at 395-96.
10Moreover, we express some doubts here as to whether a common law
unfair competition claim is appropriate, given that in
Massachusetts such a claim appears to be limited to consumer
confusion cases, which involve "palming off" or "passing off."
See Utica Mut. Ins. Co. v. Herbert H. Landy Ins. Agency, Inc., 820
F.3d 36, 44-45 (1st Cir. 2016) (quotation omitted). See also Open
Software Found., Inc. v. U.S. Fid. & Guar. Co., 307 F.3d 11, 17
(1st Cir. 2002) (noting that "the term 'unfair competition' in
Massachusetts law" has a "well-settled meaning" and that "[i]t is
settled in Massachusetts that 'the gravamen of an unfair
competition claim is the likelihood of consumer confusion as to
the source of the goods or services.'") (quoting Datacomm
Interface, Inc. v. Computerworld, Inc., 396 Mass. 760 (1986));
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141,
157-58 (1989) ("With some notable exceptions . . . the common-law
tort of unfair competition has been limited to protection against
copying of nonfunctional aspects of consumer products which have
acquired secondary meaning such that they operate as a designation
of source."). Anoush Cab has introduced no evidence at the
district court nor here to show consumer confusion or palming off,
nor does the presented evidence of Uber's activities give rise to
any inference of palming off (i.e. that Uber passed UberX rides
off as medallion taxicab rides). This further convinces us that
Anoush Cab's common law unfair competition claim should fail.
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2. Other Common Law Claims
We conclude that the district court did not err in
entering judgment for Uber on the plaintiffs' aiding and abetting
(Count III) and conspiracy (Count IV) claims. Malden III, 404 F.
Supp. 3d at 426 (COL ¶ 42). Claims alleging aiding and abetting
or civil conspiracy require proof of an underlying tort. See
Taylor v. Am. Chemistry Council, 576 F.3d 16, 34-35 (1st Cir.
2009). The plaintiffs failed to prove an underlying tort; the
district court was thus correct in rejecting, as matter of law,
the plaintiffs' claim that Uber aided and abetted drivers'
violations of the Boston Ordinance and Taxi Rules. Malden III,
404 F. Supp. 3d at 426 (COL ¶ 45). Furthermore, Chapter 93A does
not contain a separate aiding and abetting cause of action, and we
find it unlikely one exists. See In re TelexFree Sec. Litig., 360
F. Supp. 3d 46, 49 (D. Mass. 2019) ("Chapter 93A . . . does not
recognize a separate aiding and abetting cause of action."). See
also Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S.
164, 175-77 (1994) (focusing on whether a statute explicitly
provides for aiding and abetting liability). In any event, Anoush
Cab's Chapter 93A claim fails for the reasons already discussed.
Common law unfair competition, on the other hand, more obviously
qualifies as an underlying tort, but again we have already shown
that such a claim fails, and thus the aiding and abetting claim
must also fail.
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With respect to coercive conspiracy,11 we note, as did
the district court that it is a rare cause of action. Malden III,
404 F. Supp. 3d at 426 (COL ¶ 44) (citing Aetna Cas. Sur. Co. v.
P & B Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994)). The plaintiffs
must demonstrate that the defendants "had some peculiar power of
coercion over plaintiff that they would not have had if they had
been acting independently." Id. A case that Anoush Cab cites,
Sexual Minorities Uganda v. Lively, notes that under the "more
exceptional" coercive conspiracy theory, the power of coercion
must also be "peculiarly focused against" the plaintiff. 960 F.
Supp. 2d 304, 333 (D. Mass. 2013) (quoting Mass. Laborers' Health
& Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 245 (D.
Mass. 1999). We also agree with the district court that
"consistent with [the] conclusion that defendants did not act
'unfairly' under Chapter 93A," "flooding the market with Uber
drivers does not amount to the kind of 'coercion' anticipated by
this narrow cause of action." Malden III, 404 F. Supp. 3d at 426
(COL ¶ 44).
D. Damages
At the bench trial, the plaintiffs presented expert
witness testimony by Dr. Michael Williams and John Weeden in
11 The plaintiffs alleged only a common-plan conspiracy, and not
coercive conspiracy. Count IV, ¶ 119. As the district court also
addressed the latter claim, we do so as well.
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support of their claim that the introduction of Uber in violation
of unfair practices and competition resulted in economic injury
in the form of lost medallion values in the sum of $124,023.734,12
and lost profits in the sum of $10,777,855. The plaintiffs
acknowledge that they were required to prove damages with
"reasonable certainty." See Astro-Med, Inc. v. Nihon Kohden Am.,
Inc., 591 F.3d 1, 19 (1st Cir. 2009) (quoting Nestle Food Co. v.
Miller, 836 F. Supp. 69, 78 (D.R.I. 1993)). Although the district
court had concluded that "Uber is not liable to plaintiffs under
Chapter 93A, it proceed[ed], nevertheless, to making findings of
fact on . . . damages for the sake of completeness." Malden III,
404 F. Supp. 3d at 415 (emphasis omitted). The district court thus
issued findings of fact that the testimony put forth by the plaintiffs'
damages experts was unreliable. Id. at 416-18. Williams offered
two regression models purportedly designed to prove losses in
medallion values and leasing revenues. The district court found
Williams' damages presentation "flawed" and "unreliable" because,
inter alia, Williams "generated inaccurate price predictions";
failed to account for "regulatory events" that can decrease
medallion values; and gave "inconsistent" trial testimony,
12The district court found that "[o]n June 4, 2013, the average
price for taxi medallions in Boston . . . was $637,500 per
medallion. The highest price paid for a medallion was $700,000 in
2014. On August 4, 2016, the going price of Boston taxi medallions
was approximately $250,000." Malden III, 404 F. Supp. 3d at 416
(FOF ¶ 70).
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including a "dramatic reduction" that suddenly, with no
explanation, cut the claimed medallion value damages in half. Id.
at 416-17 (FOF ¶¶ 72-74).
With respect to the lost profits analysis put forth by
Weeden, the district court found that it was also unreliable
because it relied on one of Williams' unreliable models, and
"unrealistically assumed that plaintiffs' medallions would be
leased 24 hours per day, 7 days per week, with 100% utilization in
12-hour shifts." Id. at 418 (FOF ¶¶ 75-76). The district court
concluded that even if plaintiffs "had proved liability (which
they have not) . . . . [b]ecause [their] calculation of damages
for reduced medallion value and lost profits are based upon
unreliable and flawed regression models, plaintiffs have failed
to prove damages with reasonable certainty." Id. at 422-24 (COL
¶¶ 21-30). The district court further found that plaintiffs'
damages calculations failed to "disaggregate the regulatory
impacts," and thus "impermissibly" sought to recover damages tied
to Uber's constitutionally protected right to petition the
government, in violation of the Noerr-Pennington doctrine. Id.
at 424 (COL ¶ 32).
On appeal, the plaintiffs contend that the district
court's analysis of the testimony regarding damages was incorrect
and that based on the undisputed evidence, we should enter
judgment in their favor in the amount of $122,350.49. Although
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we would conclude on review that the district court's analysis of
the deficiencies in testimony regarding damages should be
sustained, we do not need to reach the question of damages because
the plaintiffs have not established liability by the defendants.
"It is settled law that when liability has been resolved against
a plaintiff, any claims of error relating exclusively to damages
are moot." Campbell v. Ackerman, 903 F.3d 14, 19 (1st Cir. 2018)
(collecting cases). We thus "need not reach the issue related to
the damages award." A.M. Capen's Co., Inc. v. Am. Trading and
Prod. Corp., 202 F.3d 469, 471 n.3 (1st Cir. 2000).
III. CONCLUSION
As we have noted, the introduction of TNCs has upended
the transportation industry. The ensuing transformation of that
industry has been the subject of intense debate.13 There has been
13 See, e.g., Massachusetts Area Planning Council, The Growing
Carbon Footprint of Ride-hailing in Massachusetts (July 2019),
https://www.mapc.org/wp-content/uploads/2019/07/Growing-Carbon-
Footprint-of-Ride-hailing-in-MA.pdf;
Institute for Transportation and Development Policy, Ride Fair: A
Policy Framework for Managing Transportation Network Companies
(2019) https://www.itdp.org/wp-
content/uploads/2019/03/2019.03.13.TNC-Policy.V9.pdf;
Craig A. Leisy, Transportation Network Companies and Taxis: The
Case of Seattle (2019); B. Schaller, The New Automobility:
Lyft, Uber and the Future of American Cities, Schaller
Consulting (July 25, 2018)
http://www.schallerconsult.com/rideservices/automobility.pdf;
S. Roy, A. Komanduri & K. Prossaloglou, Evolution of
Transportation Network Companies and Taxis through 2013-2018 in
Chicago, 2674 Transportation Research Record 7, 385-397 (2020)
https://journals.sagepub.com/doi/full/10.1177/0361198120922851.
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vigorous argument whether the new world created by TNCs has been
good for the transportation industry as a whole or for the larger
public; dispute regarding the impact of TNCs on road congestion
and public transit usage; questions whether TNCs are being
regulated appropriately in the best interests of public safety;
and debate whether the legislature acted sufficiently, or should
have acted, to protect the interests of taxicab owners who were
affected by the TNCs. These are no doubt important issues of
public policy. However, they are not before us or within our
province of decision. Rather, as we observed at the outset, we
are faced with the narrow question of whether Uber's entrance and
conduct in the transportation market during a period of regulatory
uncertainty violated the statutory and common law governing the
commercial marketplace, as presented in the district court. For
the reasons set forth above, we conclude that it did not.
Accordingly, the judgment of the district court is affirmed.
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