Malden Transportation, Inc. et al v. Uber Technologies, Inc. et al

Filing 652

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM OF DECISION: For the foregoing reasons, defendants are found not to have violated Chapter 93A or plaintiffs common law claims. Accordingly, judgment will enter for defendants.So ordered.(Vieira, Leonardo) Modified on 9/6/2019 to fix docket text (Vieira, Leonardo).

United States District Court
District of Massachusetts
)
Malden Transportation, Inc., et )
al.,
)
)
Plaintiffs,
)
)
v.
)
)
Uber Technologies, Inc. and
)
Rasier, LLC,
)
)
Defendants.
)
)
)

Civil Action No.
16-12538-NMG
consolidated with:
16-12651-NMG
17-10142-NMG
17-10180-NMG
17-10316-NMG
17-10598-NMG
17-10586-NMG

MEMORANDUM OF DECISION
GORTON, J.
This case involves a suit by the Anoush plaintiffs (taxi
medallion holders in the Greater Boston) who allege that Uber
Technologies, Inc. and Raiser, LLC (collectively “Uber” or
“defendants”) competed unfairly in the on-demand, ride-hail
Boston transportation market in violation of M.G.L. Chapter 93A,
§ 11 and Massachusetts common law. 1
The Court presided over a seven-day bench trial in late
July, 2019, and early August, 2019, and now publishes its

1

This decision pertains to the Anoush plaintiffs only as the
remaining plaintiffs (except for a few outliers) in the other
consolidated actions have entered into a stipulation of
dismissal. See Docket No. 651.
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findings of fact and conclusions of law pursuant to Fed. R. Civ.
P. 52(a).
FINDINGS OF FACT
I. Parties
1.

The Anoush plaintiffs (“plaintiffs” or “plaintiff
corporations”) are 34 corporations in the business of
leasing City of Boston taxicabs (and medallions that
authorize their use) to independent drivers.

All 34

corporations are owned and operated by the Tutunjian
family which collectively controls 362 medallions. 2

The

plaintiffs’ taxicabs are branded under the name “Boston
Cab.”
2.

The plaintiff corporations do not have employees
themselves but, pursuant to individual and identical
management agreements with EJT Management, Inc. (“EJT”),
EJT conducts most of their day-to-day business.

EJT is

also owned by the Tutunjian family.
3.

Under the individual management agreements, EJT serves as
an agent for the plaintiff corporations with respect to
the collection of leasing revenue and the maintenance of
leased taxicab vehicles for which it charges management

2

Prior to the “conduct period,” plaintiffs owned 372 medallions.
In 2014, they sold ten medallions for $700,000 apiece.
Plaintiffs allege damages only with respect to the 362
medallions currently owned.
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fees.

It also pays taxes and bills for plaintiffs.

EJT

does not, however, own any of the medallions at issue.
4.

Boston Cab Dispatch, Inc. (“Dispatch”), also owned by the
Tutunjian family, is a radio association that provides
taxi dispatch services to its “membership.”

The 34

corporate plaintiffs are all members and pay membership
fees to “Dispatch.”
5.

Ed Tutunjian (“Mr. Tutunjian”) was the controlling
shareholder of all 34 plaintiff corporations for most of
the period of alleged unlawful conduct, i.e., June 4,
2013, through August 4, 2016 (“the conduct period”).

He

transferred his ownership interest in all the Tutunjian
entities (34 plaintiff corporations, EJT and Dispatch) to
his wife, Nancy Tutunjian, for no consideration in 2016.
6.

Mary Tarpy (“Ms. Tarpy”), the daughter of Ed and Nancy
Tutunjian, is the president, secretary and treasurer of
all 34 plaintiff corporations and is the president of EJT
and Dispatch.

She has managed the day-to-day operations

of the plaintiff corporations and EJT since mid-2013.

As

the corporate secretary, Ms. Tarpy is also responsible
for the corporate books and records of all plaintiff
corporations and EJT.
7.

John Weeden (“Mr. Weeden”) serves as the accountant for
the plaintiff corporations.
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While Mr. Weeden maintained

separate trial balances for each of the plaintiff
corporations, EJT would compile the daily leasing
transactions and corporate expenses (mostly transactions
with EJT) within a general ledger.
8.

In 2013, Dispatch and EJT sued Uber for unfair
competition.

That lawsuit was dismissed with prejudice

in July, 2016.
9.

Uber is a Delaware corporation with its principal offices
in San Francisco, California.

It is a technology company

that uses a mobile software application (“app”) to match
up potential riders with drivers seeking customers for
prearranged transportation.
10.

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.

11.

In October, 2011, Uber began a service called UberBLACK
in Boston which allowed consumers to use an app on their
phone to prearrange a ride in a livery vehicle with a
livery licensed driver.

In Fall 2012, Uber began

providing UberTAXI in Boston which allowed riders to
arrange traditional taxi rides from medallion-licensed
taxicabs through the Uber app.

In February, 2013, Uber

offered UberX Livery which allowed riders to request
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rides from drivers with livery plates via the Uber app.
UberX Livery fare rates were lower than UberBLACK which
Uber considered a premium product.
12.

Rasier, LLC (“Rasier”) is a wholly owned subsidiary of
Uber that operates as a transportation network company
(“TNC”) in Massachusetts.

References to “Uber” operating

as a TNC apply equally to Rasier.
II.

Chapter 93A Liability

A. Regulatory Framework
13.

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

12 assigned police officers but typically only two of
those officers serve on the street during any one shift.
14.

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.

15.

Rule 403 defines a “hackney carriage” as
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a vehicle 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.
16.

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 bare evidence of membership
in a radio dispatch association.
17.

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.
City of Boston Code 16-15.05: Vehicle for Hire Ordinance.

18.

From 2007 to 2008, Captain Robert Ciccolo (“Captain
Ciccolo”) served as the Commander of the Hackney Unit.
Captain Ciccolo credibly testified that under his
command, 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.
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19.

At some point, after Captain Ciccolo stepped down as
Commander of the Hackney Unit and at the beginning of the
conduct period, he informed the Commissioner (Ed Davis)
and the Civilian Director of Hackney Licensing (Mark
Cohen) of the Hackney Unit’s policy of not enforcing Rule
403 with respect to prearranged livery rides.

20.

In November, 2013, William Evans became Police
Commissioner of the City of Boston.

He served as

Commissioner until the end of the conduct period in
August, 2016.
21.

Captain Steven McLaughlin (“Captain McLaughlin”) served
as Commander of the Hackney Unit from January, 2013, to
May, 2014, under both Commissioners Davis and Evans.
When he was Commander of the Hackney Unit, he instructed
his officers not to ticket ridesharing vehicles unless
they were involved in street hails.

B. Nelson Nygaard Report
22.

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”).
23.

Although Uber declined to participate in the preparation
of the Report, Captain McLaughlin, while Commander of the
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Hackney Unit, asked the drafters of the Report to address
how the Hackney Unit should regulate ridesharing services
such as those provided by TNCs.
24.

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”).
25.

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.

C. Ridesharing Competitors and UberX P2P
26.

In March, 2013, Sidecar, a competitor to Uber, began the
first P2P ridesharing program in Boston.

When that

happened, Michael Pao (“Mr. Pao”), the General Manager of
Uber in Boston at the time, informed Uber executives that
the Boston Ordinance prohibits “for hire” private vehicle
pickups.
27.

Sometime thereafter, Mr. Pao told Uber’s Head of Global
Public Policy, Corey Owens (“Mr. Owens”), that Mr. Cohen
(the Civilian Director of the Hackney Unit) had
purportedly stated that there was almost no chance that
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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.
28.

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 Travis

Kalanick stated:
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.
29.

That same month, Meghan Joyce (“Ms. Joyce”) succeeded Mr.
Pao as Uber’s Boston General Manager, a position she held
until early 2015, when she was then succeeded by Cathy
Zhou (“Ms. Zhou”).

30.

In May, 2013, Lyft, another Uber competitor began its P2P
ridesharing service in Boston.

31.

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.
During the week preceding its launch, Uber had several
intra-management communications relating to the Boston
Ordinance.

At that time, Ms. Joyce was familiar with the
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Boston Ordinance and was specifically aware of the fact
that violations could result in $500 fines.
32.

While Uber maintains that throughout the conduct period
the Taxi Rules did not apply to ridesharing, just before
the launch of UberX P2P, Mr. Pao stated that “[t]his
would be the first time Uber would be launching in a
market without formal or tacit approval.”

Despite that

initial statement from Mr. Pao, the Court finds that such
understanding later changed based on a series of
conversations that Uber management had with City
officials.
33.

On May 30, 2013, Mr. Owens, Uber’s Head of Global Public
Policy, emailed Mayor Menino’s Chief of Staff, Mitchell
Weiss (“Mr. Weiss”), a letter which was drafted, in part,
by Ms. Joyce.

In that letter, Uber stated that it was

“eager to participate in this innovative model” but only
“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.”
34.

That same day Mr. Owens spoke with Mr. Weiss by
telephone.

Mr. Owens reported back to his Uber

colleagues that Mr. Weiss said, “just launch.”

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35.

The following day, on May 31, 2013, Mr. Owens
communicated with Mr. Weiss again and asked him 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.”

36.

Although Mr. Weiss did not testify, the Court finds that
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
corroborate Uber’s understanding of their communications
with City officials prior to the launch of UberX P2P.

37.

Uber launched UberX P2P on June 4, 2013.

D. Requirements for UberX P2P Drivers
38.

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.
39.

Uber’s management knew that its UberX P2P ridesharing
model would save Uber drivers thousands of dollars in
fees in comparison to taxicab drivers.

At the time,

plaintiffs estimated that the annual cost of leasing a
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medallion in Boston was approximately $26,000, weekly
radio association fees ranged from $20 to $88 and onetime retrofitting costs were around $3,600.

By avoiding

such fees, Uber expected its drivers to earn 30% more
income than a comparable taxicab driver.
40.

Unlike taxis, which are subject to fixed taxi fare rates,
Uber set the variable prices for how much a customer
would be charged per ride.

41.

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 period of high demand and decrease them during
periods of low demand.
42.

In October, 2013, Uber advertised to its customers that
UberX P2P in Boston was 30% cheaper than comparable taxi
rides.

E. Ticketing and Government Interactions
43.

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.

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In 2015,

46 tickets were issued under the Boston Ordinance, but in
2016, only three tickets were issued.
44.

In response to inquiries from drivers about citations
received, Uber employees never told the drivers that
UberX P2P was illegal.

Rather, Robert Hoyt (“Mr. Hoyt”),

an Uber employee who managed communications with the
drivers, informed ticketed drivers that the officers were
merely “misinformed” about Uber’s commercial insurance
policy and that he would submit the citations to Uber’s
legal team.

He would then input information about the

citations in a spreadsheet which Uber’s legal team could
access.

Uber meticulously tracked its drivers’ citations

throughout the conduct period.
45.

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.
46.

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.
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47.

In February, 2014, Commissioner Evans stated during a
radio interview that Uber was an unlicensed service but
later rescinded that comment.

In April, 2014, Ms. Joyce

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.
48.

Internal documents show that during 2014, Ms. Joyce was
skeptical that the Mayor’s Office was doing anything to
stop the ticketing.

Uber management subsequently heard

from one of its lobbyists that Dan Koh (“Mr. Koh”), Mayor
Walsh’s Chief of Staff, was “dumfounded” as to why Uber
drivers were being ticketed.

Mr. Koh later requested

that Uber provide him with information about the
citations and Uber complied.
49.

Ms. Joyce credibly testified that she had multiple
conversations with Mr. Koh about the driver citations and
she believed that Mr. Koh was in the process of stopping
the issuance of citations.

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F. Taxi Advisory Committee
50.

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.

Ms. Joyce participated on the TAC on behalf

of Uber and eventually Ms. Zhou attended those meetings
after she became General Manager.
51.

Although no City of Boston official ever told Uber that
it was not allowed to operate in Boston, in November,
2014, Ms. Joyce told her Uber colleagues that Chris
English (“Mr. English”), 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.

52.

In December, 2014, Ms. Joyce testified at a Boston City
Council hearing on ridesharing.

At that hearing, Ms.

Joyce heard Mr. English reiterate that the goal of the
TAC was to seek revisions to current regulations and to
explore new regulations applicable to TNCs.
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She also

heard testimony from Captain Gaughin and Lieutenant Lema,
officers in the Hackney Unit under Commissioner Evans,
about how Uber was flouting the law.
G. BTOA Litigation
53.

In January, 2015, the Boston Taxi Owners Association
(“BTOA”) sued the City of Boston for its nonenforcement
of Rule 403.

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 MBTA,
jitney carriages, livery vehicles, and TNCs, among
other types of transportation.
54.

This Court denied BTOA’s motion for preliminary
injunction and Uber followed that litigation closely.

H. Data Sharing Agreement
55.

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 everyday.”

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I. State Regulations
56.

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
Transportation Network Company shall apply for a
certificate to provide TNC Services.
57.

Following the issuance of the MassDOT regulations,
Nicholas Zabriskie (“Mr. Zabriskie”), a public policy
specialist at Uber, told Ms. Joyce that the “DPU does not
have statutory authority to regulate us” and that
legislation would still be needed for the regulations to
be enforceable.

He later informed Ms. Zhou, that despite

the state regulations, municipalities could still
regulate Uber.
58.

On February 4, 2015, Massachusetts Governor Charlie Baker
(“Governor Baker”) issued a press release directing the

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DPU to issue public notice clarifying the status of TNCs
in Massachusetts.

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.
59.

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.

60.

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.

61.

On February 6, 2015, the DPU issued a notice to Uber
pursuant to the MassDOT regulations.

That notice, and

three subsequent notices issued at six-month intervals,
stated that the DPU would not issue TNC Certificates at
that time.
62.

On April 24, 2015, Governor Baker issued another press
release with respect to the regulatory framework.

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The

press release gave notice of a “Phase-In Period” during
which the proposed
legislation allows for a phase-in of the law to ensure
current operations are not disrupted as the framework
and regulations are developed and finalized.
63.

Despite Governor Baker’s announcement, Ms. Zhou attended
a TAC hearing in May, 2015, after which she explained to
her colleagues that Joel Barrerra of the Governor’s
Office made clear that the state legislation set minimum
standards and did not preempt municipalities from further
regulation.

64.

On July 31, 2016, the Massachusetts legislature enacted
the TNC Act which preempts municipalities from regulating
TNCs and gives regulatory jurisdiction of TNCs to the DPU
and the Massachusetts Port Authority.

65.

Governor Baker signed the TNC Act into law on August 5,
2016, but it was not to apply retroactively.

Although the Court concludes below that Uber is not liable to
plaintiffs under Chapter 93A, it proceeds, nevertheless, to make
findings of fact on causation and damages for the sake of
completeness.
III. Causation
A. Taxi Ridership
66.

In 2012, there were approximately 14.6 million taxi rides
completed in Boston.

By 2016, the number of taxi rides

had decreased to just under 8 million.

From 2013 to

2016, the number of trips in taxicabs leased by
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plaintiffs annually declined by 50% (from 3.2 million to
1.6 million).

Meanwhile, Uber had serviced approximately

29 million rides during that three-year period.
B. Leasing Revenue
67.

Plaintiffs’ primary source of income is leasing revenue
derived from the leasing of taxis and taxi medallions.
Although plaintiffs’ leasing revenue increased from 2013
to 2014, it decreased by 38% during the remainder of the
conduct period (from $17.3 million in 2013, to $10.7
million in 2016).

68.

Although Mr. Weeden testified that, other than the entry
of UberX P2P and other ridesharing services in the
market, he was unaware of any other factors which could
have caused such a dramatic decline in leasing revenues,
he did not describe what other factors he examined and
acknowledged that ridesharing services other than Uber
entered the market during the conduct period.

69.

Dr. Michael Williams (“Dr. Williams”), plaintiffs’
causation and damages expert, testified that his leasing
revenue regression model isolated the specific effects of
Uber’s ridesharing business during the conduct period but
he did not explain how he isolated those effects.

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C. Medallion Value
70.

On June 4, 2013, the average price for taxi medallions in
Boston, Massachusetts 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.
71.

The Court finds that, as both damages experts essentially
agreed:
a. medallions are akin to assets, the value of which is
equal to the anticipated cash flow that the asset can
generate;
b. the anticipated cash flow is based on the leasing
revenues that can be generated by use of a medallioned
taxi (which depends on the willingness of drivers to
lease a taxi); and
c. the value of the medallions can be affected by other
factors such as historical information, interest rates
and regulatory events.

IV.

Damages

A. Medallion Value
With respect to the regression models and certain adopted
variables relied upon by Dr. Williams for his proposed
calculation of damages, the Court finds as follows:

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72.

Dr. Williams’ medallion regression model is unreliable
because:
a. he conceded that medallion values can be affected by
regulatory events and that his medallion regression
model did not remove the effects of such events on the
assumption they were not independent of the disputed
conduct, thereby including Uber’s lobbying activities
as part of the disputed conduct; and
b. Laura Stamm (“Ms. Stamm”), defendants’ rebuttal
expert, credibly criticized Dr. Williams’ medallion
regression model on the grounds that it generated
inaccurate price predictions at the beginning of the
conduct period.

Using data from the benchmark period

(i.e., before the conduct period), she compared the
actual medallion price on June 4, 2013 (approximately
$637,000) to Dr. Williams’ predicted medallion price
(approximately $883,000).

The discrepancy of almost

$250,000 in the benchmark period renders Dr. Williams’
medallion regression model untenable.
73.

The Court finds that Dr. Williams’ leasing revenue
regression model is unreliable because:
a. he failed to include taxi driver hourly wages as a
variable in his model even though he conceded that
drivers’ wages and perceived economic health would
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affect drivers’ decisions to lease medallions and did
not explain his omission;
b. Ms. Stamm credibly testified that the drastic change
in predicted leasing revenues based on the addition of
two variables (S&P 500 and taxi driver hourly wages)
renders Dr. Williams’ model invalid; and
c. Dr. Williams’ trial testimony was inconsistent, in
that, at one point, he testified that his leasing
revenue regression model accounted for all other
factors, including the impact of expectations that TNC
legislation would be enacted, but later conceded that
his model did not account for anticipated regulatory
development because the impact of such regulations is
part of the disputed conduct.
74.

Even if the Court were to credit Dr. Williams’ two flawed
regression models, it finds that the method by which he
attempted to disaggregate the damages attributable to
Uber is invalid for the following reasons:
a. at trial, Dr. Williams testified, for the first time,
that plaintiffs’ damages as a result of the decline in
medallion value was $124 million.

Previously, he had

calculated the same damages at $248 million but he did
not explain the reason for the dramatic reduction;

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b. notwithstanding the shortcomings of his regression
models, Dr. Williams’ prediction that the medallion
price in the “but-for” world would reach nearly $1
million assumes that the enactment of the TNC Act
resulted from Uber’s conduct;
c. Dr. Williams’ reduction of the alleged damages to
account for Lyft’s 18.8% market share as of August 4,
2016, does not resolve the issue that his “but-for
world” assumes growth in taxi ridership but not
competitive responses by either UberX Livery or Lyft;
d. Dr. Williams did not explain how his ratio analysis,
by which he divided the percentage reduction from his
leasing revenue model (42.5%) by the percentage
reduction from his medallion regression model (74.7%)
to calculate the percentage of damages attributable to
Uber per medallion (56.9%), actually disaggregated
damages; and
e. he used only the leasing revenue data from the period
of July, 2015, to July, 2016, to calculate damages,
despite having the leasing revenue data for the entire
conduct period.

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B. Lost Profits
75.

Because Mr. Weeden calculated lost profits by relying on
the but-for leasing revenues from Dr. Williams’
discredited leasing regression model, the Court finds Mr.
Weeden’s lost profits analysis unreliable as well.

76.

The Court further finds that Mr. Weeden’s
“reasonableness” check on Dr. Williams’ leasing
regression model is invalid.

Mr. Weeden unrealistically

assumed that plaintiffs’ medallions would be leased 24
hours per day, 7 days per week, with 100% utilization in
12-hour shifts.

He then summarily described “economic

factors” that aligned with Dr. Williams’ predicted
leasing revenues without identifying what those factors
were.

Finally, Mr. Weeden testified that he considered a

regulatory framework but did not describe the one he
considered or its presumed effect.
CONCLUSIONS OF LAW
I. Chapter 93A Liability
A. Unfair Conduct
1.

To establish liability under Chapter 93A, commercial
plaintiffs must prove 1) that defendants engaged in an
unfair method of competition or committed an unfair or
deceptive act or practice, as defined by M.G.L. c. 93A, §

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2, or the regulations promulgated thereunder; 2) a loss
of money or property suffered as a result and 3) a causal
connection between the loss suffered and the defendants’
unfair or deceptive method, act or practice. Auto Flat
Car Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066,
1074–75 (2014).
2.

Contrary to plaintiffs’ assertion, the fact that Uber did
not comply with the Taxi Rules during the conduct period
does not establish “unfair” conduct because an alleged
statutory violation is neither necessary nor sufficient
to prove a Chapter 93A claim. See Massachusetts Eye & Ear
Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 69
(1st Cir. 2009).

Moreover, the Court reiterates its

summary judgment ruling that neither the Malden nor the
Katin decisions concludes that an unlicensed participant
necessarily commits an unfair trade practice. See Malden
Transportation, Inc. v. Uber Techs., Inc., 286 F. Supp.
3d 264, 274 (D. Mass. 2017); Katin v. Nat’l Real Estate
Info. Servs., Inc., No. CIV. A. 07-10882DPW, 2009 WL
929554, at *10 (D. Mass. Mar. 31, 2009) (“engaging in the
unauthorized practice of law may constitute an ‘unfair
method of competition’ within the meaning of Chapter
93A”) (emphasis added).

Thus, plaintiffs’ argument that

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the violation of the Taxi Rules, alone, constitutes
unfair trade practice continues to be unavailing.
3.

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., 94 N.E.3d 786, 792
(Mass. 2018); see also Manning v. Zuckerman, 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 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.)).

4.

In making that unfairness determination under § 11,
courts consider the totality of the circumstances
- 27 -

(Duclersaint v. Fed. Nat. Mortg. Ass’n, 696 N.E.2d 536,
540 (Mass. 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).
5.

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 P2P in
Boston, Massachusetts throughout the conduct period.

6.

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.

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7.

By 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.

In fact,

Uber’s attempt to 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. See Cablevision of
Bos., Inc. v. Pub. Improvement Comm’n of City of Bos.,
184 F.3d 88, 94, 106 (1st Cir. 1999) (where the First
Circuit dismissed a Chapter 93A claim when the City 1)
postponed the implementation of a new policy, 2) informed
defendant (plaintiff’s competitor) that it could proceed
with operations at its own risk and 3) subsequently
approved defendant’s conduct after the fact).
8.

That the City failed to take a definitive regulatory
position publicly does not render Uber’s response an
“extreme or egregious business wrong.” Peabody Essex
Museum, Inc., 802 F.3d at 54.

In fact, when considering

the equities of the parties, it is important to note that
the taxi industry (which included the Tutunjian family)
1) knew during the conduct period that the City was not
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consistently enforcing the Taxi Rules with respect to
TNCs, 2) lobbied for consistent enforcement and 3) sued
the City in an effort to require it to enforce such rules
against TNCs. See Ahern, 85 F.3d at 798.
9.

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. See
Boman v. Se. Med. Servs. Grp., No. 9501957, 1998 WL
1182063, at *8, *13 (Mass. Super. Jan. 7, 1998) (finding
no Chapter 93A violation where defendants may have
violated state laws but did not act unfairly because they
competed in response to changing marketplace conditions
and industry uncertainties).

10.

Beyond those initial discussions with City
representatives that preceded the launch, Uber continued
to operate in accordance with statements and actions of
government officials, such as:
a. the 2013 Report, which was endorsed by the City and
concluded that TNCs and livery vehicles are not
regulated and lack a regulatory body;
b. Mayor Walsh’s public interview statements that the
City did not have jurisdiction over Uber;
- 30 -

c. Uber’s inclusion as an important stakeholder on the
TAC;
d. the City’s position in a prior litigation that it was
not enforcing Rule 403 against TNCs and that the
public’s interest is served by a diverse for-hire
transportation market;
e. the City’s data-sharing agreement with Uber whereby
Uber provided some of its ridesharing information;
f. Governor Baker’s two press releases, in which Mayor
Walsh joined, that 1) announced an impending state
regulatory framework with respect to TNCs, 2) stated
that TNCs could continue to operate and 3) established
a “Phase-in Period” before regulations were enacted;
and
g. Certificates provided to Uber by the DPU which stated
that it would not issue TNC Certificates at that time,
consistent with Governor Baker’s announcement of a
“Phase-In Period.”
11.

Moreover, 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. See F.T.C. v.
Abbott Labs., 853 F. Supp. 526, 536–37 (D.D.C. 1994)
(refusing to find that defendants acted unfairly under
- 31 -

the Federal Trade Commission Act where the federal
government looked into the situation at the time, decided
not to act and allowed the open market to prevail).
12.

To be clear, the Court does not conclude that Uber acted
altruistically or in the best interest of the
transportation industry as a whole.

Uber internally

recognized that the Boston Ordinance might apply to TNCs,
knew that Uber drivers were receiving citations for
violations of the Taxi Rules and failed to inform those
drivers that they might be subject to fines.

But even in

that the regard, the totality of the circumstances
demonstrates that the “significant concern” Uber
expressed internally with respect to citations received
was short-lived and relatively minor.

Out of some 29

million Uber trips taken during the conduct period, 497
citations issued to Uber drivers represented a relatively
insignificant violation of the Taxi Rules.
13.

Moreover, during the peak period of the issuance of
citations, Mayor Walsh publicly stated that the City
lacked jurisdiction over Uber while Uber was
simultaneously serving on the TAC in an effort to
establish new regulations applicable to TNCs
specifically.

Subsequently, Uber reached out to Mayor

Walsh’s Chief of Staff, Dan Koh, who was genuinely
- 32 -

disturbed about the officers’ continued ticketing of
prearranged rides through the Uber platform, contrary to
the understanding of the Mayor.

Consistent with the

understanding that hackney officers were improperly
ticketing Uber drivers, Uber reimbursed those who picked
up passengers through prearrangement on the UberX
platform.

Accordingly, the Court concludes that Uber did

not reimburse driver citations to undermine law
enforcement but rather to minimize driver liability.
B. Good Faith
14.

Although the parties have addressed the concept of “good
faith” at trial and in their submitted pleadings and the
Court here responds in kind, the term is not
substantively relevant in this case because plaintiffs
are not required to prove that Uber acted in bad faith to
prevail on their claims of liability.

Rather, the

parties have presented evidence of “good faith” (or the
lack thereof) and the Court draws conclusions here for
the purpose of determining whether Uber’s conduct can be
found to be “egregious” in light of the surrounding
circumstances.
15.

Chapter 93A, § 2(a) provides that courts should be
guided by the interpretations given by the Federal
Trade Commission and the Federal Courts to section
5(a)(1) of the Federal Trade Commission Act.
- 33 -

16.

Plaintiffs assert that, consistent with federal court
interpretations of the Federal Trade Commission Act (“the
FTC Act”), “good faith” is not a defense to “unfairness”
liability under the FTC Act and, consequently, under
Chapter 93A.

That interpretation is, however, misleading

because, although courts have rejected “good faith”
defenses as to the deceptive prong of the FTC Act, they
have not done so as to the unfairness prong (which is at
issue here). See, e.g., F.T.C. v. Cyberspace.Com LLC, 453
F.3d 1196, 1200, 1202 (9th Cir. 2006) (rejecting the
defendant’s claim that he reasonably believed he was not
violating the FTC Act when he distributed solicitation
checks that deceptively charged individuals); Feil v.
F.T.C., 285 F.2d 879, 896 (9th Cir. 1960) (finding that
“[w]hether good or bad faith exists is not material, if
the Commission finds that there is likelihood to
deceive”) (emphasis added); F.T.C. v. Patriot Alcohol
Testers, Inc., 798 F. Supp. 851, 855 (D. Mass. 1992)
(rejecting a good faith defense when the FTC has proven
the three elements of deceptive conduct: a
representation, that is misleading and is material).
17.

To the extent plaintiffs argue that defendants are liable
to them based upon Uber’s deception, an argument not

- 34 -

raised at summary judgment, plaintiffs have proffered
insufficient evidence at trial to support such a claim.
18.

Moreover, 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.
Rather, such evidence is considered pursuant to a
totality-of-the-circumstances inquiry and thus the Court
rejects plaintiffs’ contention that Uber’s “good faith”
is an impermissible defense to a finding of unfairness.
See Duclersaint, 696 N.E.2d at 540.

19.

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.” Peabody Essex Museum,
Inc., 802 F.3d at 54.
- 35 -

20.

Accordingly, based on the totality of the circumstances,
the Court concludes that plaintiffs have not proved that
defendants acted with the requisite, heightened standard
of unfairness under § 11 of Chapter 93A and therefore
defendants are not liable to plaintiffs.

C. Damages
Even assuming plaintiffs had proved liability (which they have
not) and causation (as to which the Court declines to enter
conclusions of law in the absence of proof of liability),
plaintiffs have nonetheless failed to prove damages with
reasonable certainty for the following reasons:
21.

As both the factfinder and arbiter of the law in a bench
trial, the Court assumes the dual roles of determining 1)
the credibility of the witnesses (including experts) and
the weight to be accorded to their proffered testimony
and 2) the reliability and relevance of the testimony.
See Seahorse Marine Supplies, Inc. v. P.R. Sun Oil
Co., 295 F.3d 68, 81 (1st Cir. 2002).

22.

Under Massachusetts law, uncertainty as to the amount of
damages does not bar recovery. Air Safety, Inc. v. Roman
Catholic Archbishop of Bos., 94 F.3d 1, 4 (1st Cir. 1996)
(internal citations and quotations omitted).

Plaintiffs

must, however, establish their claim for damages
upon a solid foundation in fact, and cannot recover
when any essential element is left to conjecture,
surmise or hypothesis.
Id.
- 36 -

23.

The calculation of damages in this case is dependent upon
competing expert testimony with respect to regression
analyses.

Much of the case law surrounding regression

analysis arises in the context of loss causation in
securities cases and proof of disparate impact in
employment discrimination cases. See Reed Const. Data
Inc. v. McGraw-Hill Companies, Inc., 49 F. Supp. 3d 385,
399–400 (S.D.N.Y. 2014), aff’d, 638 F. App’x 43 (2d Cir.
2016).

Nevertheless, the Court concludes that the

articulated standards with respect to regression analysis
are instructive where, as here, plaintiffs’ expert
proffered regression analyses to calculate damages.
24.

Because the Court concludes that Dr. Williams’ testimony
lacks probative value and is unreliable, plaintiffs have
failed to prove damages with reasonable certainty. AstroMed, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 19 (1st
Cir. 2009) (“All that is required is a reasonable basis
of computation and the best evidence obtainable.”).
Accordingly, plaintiffs’ Chapter 93A claim is deficient
not only for a failure to prove liability but also for
failure to prove compensable damages.

25.

When assessing the reliability of expert testimony, the
Court considers whether:

- 37 -

a. the subject testimony is based on sufficient facts or
data;
b. the testimony is the product of reliable principles
and methods; and
c. the expert has reliably applied those principles and
methods to the facts of the case. Smith v. Jenkins,
732 F.3d 51, 64 (1st Cir. 2013).
26.

When assessing the relevance of testimony, the Court must
determine whether it “will assist the trier of fact to
understand or determine a fact in issue.” Id.

27.

Dr. Williams’ leasing and medallion regression models are
not credited or afforded significant weight because they
fail to include major variables, see Bickerstaff v.
Vassar Coll., 196 F.3d 435, 449 (2d Cir. 1999), as
amended on denial of reh’g (Dec. 22, 1999)), such as:
a. taxi driver hourly wages, despite the fact that Dr.
Williams’ conceded that such wages and perceived
economic health affects drivers’ decisions to lease
medallions; and
b. regulatory activity, the impact of which Dr. Williams
did not explain because he assumed it was part of the
disputed conduct.

28.

Because Dr. Williams failed to include major variables as
part of either his medallion or leasing revenue
- 38 -

regression models, this Court does not afford them
probative value.

Moreover, Dr. Williams’ omission of

those variables amounts to a cherry-picking of data that
renders his regression models unreliable. See Bricklayers
& Trowel Trades Int’l Pension Fund v. Credit Suisse Sec.
(USA) LLC, 752 F.3d 82, 92 (1st Cir. 2014).
29.

Furthermore, Dr. Williams’ medallion regression model and
corresponding damages calculation are unreliable and
irrelevant to the Court’s determination of damages for
other reasons:
a. Dr. Williams’ prediction of the medallion price on
June 4, 2013, the first day of the conduct period,
based upon his regression model was almost $250,000
greater than the actual medallion price on that day
(as empirically verified by the testimony of Ms.
Stamm); and
b. Dr. Williams also did not utilize reliable principles
and methods to calculate disaggregated damages in
that:
i. he failed to provide any support or authority for
his method of disaggregation (i.e., reducing the
total predicted damages in the medallion
regression model by the total predicted damages
in the leasing regression model, both of which
- 39 -

assume that regulatory impacts are part of the
disputed conduct);
ii. he failed to demonstrate the “methodological
underpinning” for his ratio analysis
(Bricklayers, 752 F.3d at 95);
iii. he failed to “rationally separate” damages from
losses which are caused by the purely lawful
competitive actions of defendants (MCI Commc’ns
Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1168
(7th Cir. 1983));
iv. he failed to explain how his alleged
disaggregation accounted for the regulatory
impact but not the other lawful competitive
responses of Lyft and UberX Livery (see
Bricklayers, 752 F.3d at 95); and
v. he calculated damages based on leasing revenue
from 2015 to 2016 only, despite being in
possession of the leasing revenue data for every
year in the conduct period (see Bricklayers, 752
F.3d at 92).
30.

Because plaintiffs’ 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.
- 40 -

D. Noerr-Pennington Doctrine
31.

The Noerr-Pennington Doctrine derives from the right to
petition in the First Amendment to the Constitution which
shields from antitrust liability entities who join
together to influence government action[,] even if
they seek to restrain competition or to damage
competitors.
Davric Maine Corp. v. Rancourt, 216 F.3d 143, 147 (1st
Cir. 2000).

32.

Because Dr. Williams’ calculation of damages was based on
his regression models which did not disaggregate the
regulatory impacts, the Court concludes that he
impermissibly attributed some of Uber’s petitioning
activity in his causation and damages analysis in
violation of the Noerr-Pennington Doctrine.

E. Conclusion
33.

Because plaintiffs have not demonstrated that defendants’
conduct amounted to an extreme or egregious business
wrong and have further failed to prove damages with
reasonable certainty, judgment will be entered for
defendants on plaintiffs’ Chapter 93A claim.

II.

Res Judicata

34.

As an affirmative defense enumerated in Federal Rule of
Civil Procedure 8(c), res judicata is normally waived
unless raised in the answer. Davignon v. Clemmey, 322

- 41 -

F.3d 1, 15 (1st Cir. 2003).

Exceptions to that rule may

be invoked if, inter alia,
(i) the defendant asserts it without undue delay and
the plaintiff is not unfairly prejudiced by any delay,
or (ii) the circumstances necessary to establish
entitlement to the affirmative defense did not obtain
at the time the answer was filed.
Id. (internal citations omitted).
35.

Uber asserted its affirmative defense of res judicata at
a time beyond the bounds of a “moderate delay.” See id.
at 16.

Plaintiffs first filed their consolidated

complaint in December, 2016, six months following the
stipulation of dismissal in the Boston Cab Dispatch
litigation and amended their complaint at least three
times thereafter.

Uber filed a responsive pleading to

each amended complaint but, despite being a party to the
prior litigation, did not assert res judicata as an
affirmative defense until summary judgment. Cf. Bos. Sci.
Corp. v. Schneider (Europe) AG, 983 F. Supp. 245, 254 (D.
Mass. 1997), dismissed sub nom. Bos. Sci. Corp.v.
Schneider (USA) Inc., 152 F.3d 947 (Fed. Cir. 1998)
(allowing defendant’s res judicata defense to proceed
because 1) the precluding event did not occur until after
the answer was filed and 2) there was no question that
plaintiff was aware of the preclusion issue).

- 42 -

36.

This Court disagrees with Uber’s contention that
plaintiffs had ample opportunity to respond to the
defense.

Uber has offered no rebuttal to the claim that

plaintiffs became aware of the res judicata defense only
shortly before the close of fact discovery and its
suggestion that plaintiffs knew of the first suit and
that the defense was discussed during depositions is not
adequate notice. See Davignon, 322 F.3d at 16 (finding
that inquiries at a deposition regarding a prior
settlement agreement did not amount to adequate notice
for purposes of res judicata).
37.

Moreover, while plaintiffs’ untimely submission of errata
sheets may have been designed to defeat summary judgment,
such evidence, without more, is insufficient to impute
unethical intent to plaintiffs’ counsel, particularly
where defendants had multiple opportunities to place
plaintiffs on formal notice of the affirmative defense of
res judicata.

38.

Had Uber adequately disclosed the defense without undue
delay, plaintiffs would have been able to probe further
the matter during discovery. Cf. Lafreniere Park Found.
v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000) (allowing
defendants to raise the affirmative defense at summary
judgment because 1) there was ample time (14 months)
- 43 -

between the filing and judgment and 2) the plaintiff was
not prejudiced in its ability to challenge the defense).
39.

Moreover, the First Circuit has held that postponements
become “far less tolerable” where defendants have
tendered “no justification” for the belated assertion of
the res judicata defense. Davignon, 322 F.3d at 16.

Uber

has proffered no explanation, despite being a party to
the prior litigation, as to why its delay is justified.
40.

Finally, Uber’s claim that the parties joint pretrial
memorandum is binding on this issue is unavailing because
1) procedurally, the Court did not issue a binding
pretrial order and a joint pretrial memorandum is not an
equivalent, 2) the Court, at summary judgment, made clear
that Uber must also prove that it provided adequate
notice (in addition to privity) for res judicata to bar
the claims at issue and 3) even if the joint pretrial
memorandum were binding upon the parties, it would not
resolve the issue of unfair prejudice to the plaintiffs
for the undue delay in asserting the defense.

41.

Because Uber has failed to prove that their assertion of
the defense of res judicata was made without undue delay
or does not constitute unfair surprise on plaintiffs, it
fails as a matter of law.

- 44 -

III. Common Law Claims
A. Common Law Unfair Competition
42.

This Court has previously held that plaintiffs’ common
law claim of unfair competition is indistinguishable,
both in fact and law, from their Chapter 93A claim.
Malden Transportation, Inc., 286 F. Supp. 3d at 273 n.2.
Because this Court finds that plaintiffs have not proven
their Chapter 93A claim, their common law claim for
unfair competition fails as well. See HipSaver Co. v.
J.T. Posey Co., 490 F. Supp. 2d 55, 65 (D. Mass. 2007).

B. Aiding and Abetting/Conspiracy to Engage in Unfair
Competition
43.

Massachusetts recognizes two kinds of civil conspiracy:
1) true conspiracy and 2) conspiracy based on Section 876
of the Restatement (Second) of Torts. Taylor v. Am.
Chemistry Council, 576 F.3d 16, 34–35 (1st Cir. 2009).

44.

True conspiracy is a rare cause of action in which
plaintiffs must demonstrate that defendants
had some peculiar power of coercion over plaintiff
that they would not have had if they had been acting
independently.
Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1563
(1st Cir. 1994).

Consistent with its conclusion that

defendants did not act “unfairly” under Chapter 93A, the
Court further concludes that flooding the market with

- 45 -

Uber drivers does not amount to the kind of “coercion”
anticipated by this narrow cause of action. Cf. Willett
v. Herrick, 136 N.E. 366, 368 (1922) (where plaintiffs
alleged that the defendants had worked together to
manipulate the plaintiffs’ business holdings to acquire
certain obligations for themselves).
45.

The second kind of conspiracy, which plaintiffs have
asserted in their claim of aiding and abetting, requires
proof of an underlying tort. Taylor, 576 F.3d at 35.
Because plaintiffs have failed to prove their Chapter 93A
claim, and subsequently their claim for common law unfair
competition, they have failed to prove an underlying
tort.

Thus, their claim of aiding and abetting fails as

matter of law.
ORDER
For the foregoing reasons, defendants are found not to have
violated Chapter 93A or plaintiffs’ common law claims.
Accordingly, judgment will enter for defendants.

So ordered.

_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge

Dated September 6, 2019
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