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

Filing 96

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the foregoing reasons, the motion to dismiss of defendants Travis Kalanick and Garrett Camp (Docket No. 70), is ALLOWED and the consolidated motion to dismiss of de fendants Uber, Travis Kalanick and Garrett Camp (Docket No. 72) is, with respect to the claims of antitrust violation and interference with advantageous business relationships and the Taxi Maintenance claim of civil conspiracy, ALLOWED, but is otherwise DENIED.The following claims of the named plaintiffs remain pending:1) the claims of all plaintiffs for unfair competition under the common law and M.G.L. c. 93A § 11.2) the claims of the Anoush plaintiffs for:a) aiding and abetting unfair competition in violation of the common law and M.G.L. c. 93A, andb) civil conspiracy to commit unfair competition in violation of the common law and M.G.L. c. 93A.So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts
Malden Transportation, Inc. et
al.,
Plaintiffs,
v.
Uber Technologies, Inc.,
Defendant.
Anoush Cab, Inc. et al.,
Plaintiffs,
v.
Uber Technologies, Inc.,
Defendant.
Dot Ave Cab, Inc. et al.,
Plaintiffs,
v.
Uber Technologies, Inc.,
Defendant.
Max Luc Taxi, Inc. et al.,
Plaintiffs,
v.
Uber Technologies, Inc.,
Defendant.

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Civil Action No.
16-12538-NMG

Civil Action No.
17-10142-NMG

Civil Action No.
17-10180-NMG

Civil Action No.
17-10316-NMG

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Gill & Gill, Inc. et al.,
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Plaintiffs,
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v.
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Uber Technologies, Inc. et al,
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Defendant.
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Sycoone Taxi, Inc. et al.,
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Plaintiffs,
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v.
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Uber Technologies, Inc.,
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Defendant.
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Taxi Maintenance, Inc. et al.,
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Plaintiffs,
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v.
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Uber Technologies, Inc., Travis )
Kalanick, and Garrett Camp,
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Defendants.

Civil Action No.
16-12651-NMG

Civil Action No.
17-10586-NMG

Civil Action No.
17-10598-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves seven consolidated actions by various
taxi medallion holders in the Greater Boston area (“plaintiffs”)
who allege that Uber Technologies, Inc. (“Uber” or “defendant”)
and two of its founders, Travis Kalanick and Garrett Camp (the
“individual defendants”) competed unlawfully in the on-demand,
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ride-hail ground transportation market in and around Boston,
Massachusetts.

Plaintiffs in all seven actions allege that Uber

competed unfairly in violation of the common law and the
Massachusetts Consumer Protection Act.

Certain plaintiffs also

allege that Uber violated state and federal antitrust law,
interfered with advantageous business relationships, engaged in
a civil conspiracy and aided and abetted unfair competition.
Before the Court are 1) a motion to dismiss of individual
defendants Travis Kalanick and Garrett Camp (Docket No. 70) and
2) defendants’ consolidated motion to dismiss plaintiffs’
complaints (Docket No. 72).
I. Background
The City of Boston has traditionally regulated taxis under
a set of municipal rules, ordinances and regulations
collectively known as “Taxi Rules”.

The Police Commissioner for

the City of Boston (“the Commissioner”) is authorized by statute
to regulate all vehicles that fall under those rules.

Boston

Police Department Rule 403 (“Rule 403”) requires that
[i]n the City of Boston, no person, firm, or corporation
driving or having charge of a taxicab or other private
vehicle shall offer the vehicle for hire for the purpose 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
(Appendix I to Rule 403).
-3-

Rule 403 applies to all vehicles “used or designed to be
used for the conveyance of persons for hire from place to place”
within the city of Boston.1

The Taxi Rules impose certain

regulations on taxi cabs, such as requiring possession of a taxi
medallion, maintaining a properly equipped taxicab and belonging
to an approved dispatch service or radio association.
Uber entered the Boston market for private transportation
services in 2011 and launched its UberX service in 2013.

The

company provides a digital tool for requesting private vehiclesfor-hire by users who download Uber's free “smart phone
application” (“the Uber app”). Users who open the Uber app on
their mobile phones are shown a map of their location or
designated pick-up point and the available Uber-affiliated
vehicles in that vicinity.
In August, 2016, Massachusetts enacted the Transportation
Network Companies Act (“the TNC Act”). See M.G.L. c. 159A ½.
The statute defines a TNC as an “entity that uses a digital
network to connect riders to drivers to pre-arrange and provide
transportation.” M.G.L. c. 159A ½ § 1.

The law preempts

municipalities from regulating TNCs through local Taxi Rules.
M.G.L. c. 159A ½ § 10 (“[N]o municipality or other local or

Plaintiffs note that Taxi Rules vary among municipalities but
do not identify any specific differences.
-41

state entity, . . . may subject a [TNC]” to requirements besides
the Massachusetts Department of Public Utilities and the
Massachusetts Port Authority.).
In the “Taxi Maintenance” action plaintiffs assert claims
against Travis Kalanick, Uber’s co-founder and former CEO, and
Garrett Camp, an Uber co-founder and a current director.

The

complaint names both individuals as defendants.
The present litigation involves seven different groups of
plaintiffs that represent over 700 holders of taxi medallions in
the Greater Boston area.

The various complaints were filed in

this district between December, 2016, and April, 2017.

The

Court consolidated the cases pursuant to Fed. R. Civ. P.
42(a)(2) on October 5, 2017.

On November 13, 2017, this Court

entered an order explaining in detail how the cases were to
proceed consistent with judicial economy and due process for all
parties.
Before the Court are two omnibus motions to dismiss filed
by defendants: one with respect to Uber and the other with
respect to the individual defendants.
II. Analysis
A.

The Motion to Dismiss of Defendants Travis Kalanick and
Garrett Camp
Only the Taxi Maintenance plaintiffs pursue a claim against

the individual defendants.

Accordingly, defendants’ motion to
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dismiss is directed only at the Taxi Maintenance Corrected
Amended Complaint.
Personal Jurisdiction
On a motion to dismiss for want of personal jurisdiction,
plaintiff bears the burden of showing that the Court has
authority to exercise jurisdiction over defendants. See Mass.
Sch. of Law at Andover, Inc. v. ABA, 142 F.3d 26, 33–34 (1st
Cir. 1998).

The Court must take facts alleged by plaintiff as

true and construe disputed facts favorably toward plaintiff. See
Ticketmaster–New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st
Cir. 1994).
In a diversity suit, this Court acts as “the functional
equivalent of a state court sitting in the forum state.” See
Astro–Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8
(1st Cir. 2009).

As such, this Court must determine whether (1)

jurisdiction is permitted by the Massachusetts long-arm statute
and (2) the exercise of jurisdiction coheres with the Due
Process Clause of the United States Constitution. Id.
The Massachusetts long-arm statute, M.G.L. c. 223A, § 3,
extends jurisdiction to the limits of the United States
Constitution. See Tatro v. Manor Care, Inc., 416 Mass. 763, 771
(1994).

Accordingly, this Court need not further consider the

statute's applicability and may proceed to the due process
-6-

question. See Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002).
Due process demands a showing of general or specific
personal jurisdiction by plaintiff. See Negron–Torres v. Verizon
Commc’n, Inc., 478 F.3d 19, 24 (1st Cir. 2007).

Plaintiffs must

demonstrate that defendants have made sufficient contacts with
the forum state to justify the exercise of that jurisdiction.
Id.
1.

General Jurisdiction

This Court may assert general jurisdiction over a defendant
who maintains continuous and systematic activity in the forum
state. See United Elec., Radio and Mach. Workers of Am. v. 163
Pleasant St., 960 F.2d 1080, 1088 (1st Cir. 1992).

General

jurisdiction is only appropriate where the defendant’s activity
renders him “essentially at home in the forum state”. Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011).
The Taxi Maintenance complaint states, in conclusory
fashion, that the individual defendants are subject to general
personal jurisdiction within the Commonwealth of Massachusetts
by “regularly engaging in persistent courses of conduct in the
Commonwealth of Massachusetts” through the Uber ride-hailing
service.

Plaintiffs fail, however, to allege specific facts
-7-

demonstrating that the individual defendants, as opposed to the
corporate defendant with which they are associated, should be
considered “at home” in Massachusetts. See id.

The plaintiffs’

threadbare statement is insufficient to establish this Court’s
general jurisdiction.

2.

Specific Jurisdiction

The Due Process Clause of the Fourteenth Amendment requires
that a defendant have “minimum contacts” with the forum state
such that the “maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

The plaintiff

must allege that (1) the claim underlying the litigation arises
directly out of, or relates to the defendant’s forum-state
activities, (2) the defendant’s in-state contacts represent a
purposeful availment of the privilege of conducting activities
in the forum state and (3) the exercise of jurisdiction is
reasonable. Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir.
1995) (citing United Electrical Workers v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1089 (1st Cir. 1992)).
“The relatedness requirement focuses on the nexus between
the defendant’s contacts and the plaintiff’s cause of action.”
Nowak v. Tak How Investments, Ltd., 94 F.3d 708, 714 (1st Cir.
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1996) (citing Ticketmaster-New York, Inc. v. Alioto, 26 F.3d
201, 206 (1st Cir. 1994)) (internal quotation omitted).
Personal jurisdiction over an employee does not follow from the
fact jurisdiction over the employer exists. Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 781 n. 13 (1984).

Instead, there

must be “an independent basis for jurisdiction based on an
individual’s actions.” Rissman Hendricks & Oliverio, LLP v. MIV
Therapeutics Inc., 901 F. Supp. 2d 255, 263 (D. Mass. 2012)
(citations omitted).
Plaintiffs fail to allege facts that demonstrate a nexus
between the individual defendants’ contacts and the plaintiff’s
cause of action.
No specific facts with regard to Camp are alleged beyond
the claim that he founded (and is a director of) Uber and that
he resides in California.

Plaintiffs attempt to attribute the

acts of Uber to Camp through principles of agency law.

They

fail to allege, however, a single fact indicating that Camp made
decisions about Uber’s operations in Massachusetts or even
traveled to the Commonwealth.

Accordingly, plaintiffs have

failed to allege that this Court has specific personal
jurisdiction over Garrett Camp. Cf. Galletly v. Coventry
Healthcare, Inc., 956 F. Supp. 2d 310, 314 (D. Mass. 2013)
(finding that court lacked jurisdiction over individual
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defendant because plaintiff’s allegations “[did] not suggest
that [defendant] played any specific role” in the underlying
cause of action).
The handful of statements that plaintiffs attribute to
Kalanick do not create a nexus to their cause of action.
Plaintiffs provide a smattering of irrelevant comments made by
Kalanick, such as that he is a fan of Ayn Rand’s novel
“Fountainhead” (sic).

They do not, however, point to a single

decision Kalanick made about Uber’s operations in Massachusetts.
They do not allege that Kalanick traveled to the Commonwealth
regularly, or even at all.

Plaintiffs have failed to allege

that this Court has specific personal jurisdiction over Travis
Kalanick. Cf. Interface Grp.-Massachusetts, LLC v. Rosen, 256 F.
Supp. 2d 103, 107 (D. Mass. 2003) (determining that Court lacked
specific personal jurisdiction because there was “too tenuous a
nexus” between the defendant’s specific Massachusetts contacts
and the injuries suffered by the plaintiff).
Because plaintiffs have failed to establish the relatedness
requirement of specific personal jurisdiction, the Court
declines to address the foreseeability and reasonableness
requirements.

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3.

Piercing the corporate veil

As an alternative, plaintiffs contend that they have
established specific personal jurisdiction over the individual
defendants on the basis of an alter ego theory.
inapposite.

That theory is

Under Massachusetts law, courts consider a

multitude of factors when deciding whether to pierce a corporate
veil:
(1) common ownership; (2) pervasive control; (3) confused
intermingling of business assets; (4) thin capitalization;
(5) nonobservance of corporate formalities; (6) absence of
corporate records; (7) no payment of dividends; (8)
insolvency at the time of the litigated transaction; (9)
siphoning away of corporation's funds by dominant
shareholder; (10) nonfunctioning of officers and directors;
(11) use of the corporation for transactions of the
dominant shareholders; and (12) use of the corporation in
promoting fraud.
Attorney Gen. v. M.C.K., Inc., 432 Mass. 546, 555 n. 19 (2000)
(citing Pepsi-Cola Metro. Bottling Co. v. Checkers, Inc., 754
F.2d 10, 14-16 (1st Cir. 1985)).
The complaint does not allege facts in support of a single
factor relevant to piercing the corporate veil.

Accordingly,

plaintiffs have not justified the application of such a theory.
See Newman v. European Aeronautic Defence & Space Co. Eads N.V.,
700 F. Supp. 2d 156, 168 (D. Mass. 2010).
Plaintiffs have failed to establish that this Court has
personal jurisdiction over either of the individual defendants.
Therefore, the motions to dismiss of defendants Travis Kalanick
and Garrett Camp will be allowed.
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B.

The Consolidated Motion to Dismiss of Defendants Uber,
Travis Kalanick and Garrett Camp
Defendants contend that plaintiffs fail to state a claim

upon which relief can be granted.

In summary, Uber avers that

it has not been shown: 1) to compete “unfairly” because it was
never subject to the Taxi Rules, 2) to present a dangerous
probability of monopolizing a market, 3) to interfere with
advantageous business relationships or with the market-at-large,
or 4) to have been part of a conspiracy or to have aided and
abetted the violation of any legal canon.

The Court will

address these contentions seriatim.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

In considering the merits of

a motion to dismiss, the Court may look only to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court
of Mass., 83 F.Supp.2d 204, 208 (D. Mass. 2000), aff’d, 248 F.3d
1127 (1st Cir. 2000).

Furthermore, the Court must accept all

factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).
-12-

If the

facts in the complaint are sufficient to state a cause of
action, a motion to dismiss the complaint must be denied. See
Nollet, 83 F.Supp.2d at 208.
Although a court must accept as true all of the factual
allegations contained in a complaint, that doctrine is not
applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009).

Threadbare recitals of the legal elements which are

supported by mere conclusory statements do not suffice to state
a cause of action. Id. Accordingly, a complaint does not state a
claim for relief where the well-pled facts fail to warrant an
inference of any more than the mere possibility of misconduct.
Id. at 1950.
1.

Unfair competition under the common law and the
Massachusetts Consumer Protection Act, M.G.L. c. 93A
§ 11

All seven groups of plaintiffs bring claims of unfair
competition under the common law and Massachusetts statutory
law.2
Plaintiffs theory, in its simplest form, is that the taxi
industry in Greater Boston area is a heavily regulated business.
Taxi cabs must, for instance, obtain a license, known as a “taxi
medallion”, to operate lawfully.

Uber, the plaintiffs insist,

The plaintiffs do not distinguish between the legal standard
for their common law and statutory claims.
-132

did not comply with the Taxi Rules, did not incur the
concomitant costs, and thereby gained an unfair advantage and
caused economic injury to taxi medallion holders and duly
licensed fleet owners.
Uber responds that it is not and has never been subject to
the Taxi Rules.

Uber submits that the rules have never been

enforced against it and furthermore that the Commonwealth of
Massachusetts has recently enacted a statute that preempts
municipalities from regulating Uber (referring to M.G.L. c. 159A
½, § 10).

According to defendants, the TNC Act thus reaffirms

that the Taxi Rules do not apply (and never have applied) to
Uber.
Chapter 93A makes it unlawful for a party to engage in an
“unfair method of competition” or an “unfair or deceptive act or
practice.” M.G.L. c. 93A, § 11. Proponents of such claims must
prove they have suffered a tangible loss as a result of the
unfair or deceptive conduct. Arthur D. Little, Inc. v. Dooyang
Corp., 147 F.3d 47, 56 (1st Cir. 1998).
To determine whether a particular practice is unfair,
courts examine
Whether the practice . . . is within at least the penumbra
of some common-law, statutory or other established concept
of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; [and] (3) whether it causes
substantial injury to consumers . . . .
-14-

Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552
F.3d 47, 69 (1st Cir. 2009).
The lodestar of Chapter 93A claims is whether the
defendant's actions “would raise an eyebrow of someone inured to
the rough and tumble of the world of commerce.” Levings v.
Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504 (1979) (Kass,
J.).
Although claims under Chapter 93A are uniformly included
with allegations of statutory and common law violations,
“[v]iolation of a statutory regime is not a necessary basis” for
them to proceed. Morris v. BAC Home Loans Servicing, L.P., 775
F.Supp.2d 255, 259 (D. Mass. 2011); see also Mass. Eye & Ear
Infirmary, 552 F.3d at 66 (“To prove [a Chapter 93A] claim, it
is neither necessary nor sufficient that a particular act or
practice violate common or statutory law.”); cf. Madan v. Royal
Indem. Co., 26 Mass. App. Ct. 756, 763 (1989) (explaining that a
plaintiff must show unfair or deceptive acts over and above a
breach of contract to demonstrate a violation of Chapter 93A).
As noted above, the TNC Act authorizes the operations of
Uber and preempts municipalities from regulating TNCs.

Indeed,

plaintiffs concede that, after enactment of the statute in
August, 2016, Uber can not, as a matter of law, violate the Taxi
Rules.

Accordingly, the activity in dispute in this action is

limited to that which took place prior to August 5, 2016.
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i.

Competing as an unlicensed participant in a licensed
market can constitute an unfair trade practice

Determining the boundaries of actionable conduct under
Chapter 93A is a question of law. Incase Inc. v. Timex Corp.,
488 F.3d 46, 56 (1st Cir. 2007) (citation omitted).

Whether a

particular set of acts is unfair or deceptive is a question of
fact. Id.
Taking the plaintiffs’ plausibly alleged facts as true and
construing disputed acts in their favor, plaintiffs have stated
a claim that Uber engaged in an unfair method of competition by
operating its services outside of the purview of Massachusetts
and local law.

Massachusetts courts have consistently allowed

“a licensed carrier of passengers [to] restrain competition by
an unlicensed carrier.” A. B. & C. Motor Transp. Co. v. Dep’t of
Pub. Utilities, 327 Mass. 550, 551 (1951) (collecting cases).
This Court has already allowed claims similar to plaintiffs’ to
survive a motion to dismiss against this same defendant. See
Boston Cab Dispatch, Inc. v. Uber Techs., Inc., 2014 WL 1338148,
at *6-7 (D. Mass. Mar. 27, 2014) (holding that plaintiffs stated
a claim for unfair competition pursuant to Chapter 93A and the
common law where defendant allegedly operated service without
incurring expense of local and state regulation).
Whether Uber’s conduct in this particular instance was
sufficiently egregious will require “an individualized, fact-16-

specific inquiry”. Woods v. Wells Fargo Bank, N.A., 733 F.3d
349, 358 (1st Cir. 2013) (citing Arthur D. Little, 147 F.3d at
55) (internal quotation omitted).

At this stage, however,

plaintiffs have plausibly stated a claim that Uber’s conduct
amounted to more than a statutory violation or tort. See Juarez
v. Select Portfolio Servicing, Inc., 708 F.3d 269, 281 (1st Cir.
2013).
ii.

The Regulatory Framework

Uber vigorously rejoins that it “is not, and was not,
subject to Taxi Rules.”

Accordingly, it submits, it cannot be

said to compete unfairly for failure to follow inapplicable
rules.

The Court disagrees.

The Massachusetts legislature authorized the Commissioner
to regulate the taxi business in Boston. Town Taxi Inc. v.
Police Com’r of Boston, 377 Mass. 576, 578 (1979).

The

Commonwealth has issued regulations regarding vehicle
registration requirements.

Those regulations define a “Taxicab”

as
any vehicle which carries passengers for hire, and which is
licensed by a municipality pursuant to M.G.L. c. 40, § 22
as a taxicab.
540 Code Mass. Regs. 2.05(3) (Dec. 7, 2012).
A “Livery Vehicle” is defined as
any limousine or other vehicle which is designed to carry
fifteen or fewer passengers, including the driver, and
-17-

carries passengers for hire, business courtesy, employee
shuttle, customer shuttle, charter or other pre-arranged
transportation, and which vehicle is not required to obtain
a taxicab license pursuant to M.G.L. c. 40, §22.
Id.

3

In turn, the City of Boston defines a “Taxi” as
[a] vehicle used, or designed to be used, for the
conveyance of persons for hire, from place to place, and
licensed by the Hackney Carriage Division of the Boston
Police Department.
Traffic Rules and Regulations, City of Boston (November 1,
2012).
It defines a “Livery Vehicle” as
A vehicle used, or designated to be used, for the
conveyance of less than sixteen (16) persons for hire, from
place to place, except a bus, streetcar, taxi or commercial
vehicle.
Id.
Finally, in January, 2016, the Massachusetts Department of
Transportation revised 540 Code Mass. Regs. § 2.05 to include a
“Personal Transportation Network Vehicle” which is defined as
a private passenger motor vehicle that is used by a
Transportation Network Company Driver to provide
Transportation Services for a Transportation Network
Company.
540 Code Mass. Regs. 2.05(3) (Jan. 16, 2015).
The regulations impose state-level requirements and
standards for entities and their drivers.

The definitions of “taxicab” and “livery vehicle” were not
changed by the January, 2015, revision.
-183

The Commissioner has imposed additional requirements on
taxis operating in Boston, over and above the state regulations.
The primary ordinance at issue is the City of Boston’s Vehicle
for Hire Ordinance (“Rule 403”), which requires that
[i]n the City of Boston, no person, firm, or corporation
driving or having charge of a taxicab or other private
vehicle shall offer the vehicle for hire for the purpose 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
(Appendix I to Rule 403).
Uber relies heavily on the fact that Rule 403 was not
enforced against it between 2013 and 2016.

Nor was the Rule

enforced against livery vehicles, Uber contends, even though it
seems to apply to livery vehicles as well.

The statutory and

regulatory framework does, however, distinguish between Uber and
livery vehicles.

State regulations explicitly state that livery

vehicles are “not required to obtain a taxicab license” pursuant
to state regulation. 540 Code Mass. Regs. 2.05(3) (Dec. 7,
2012).

Uber can point to no such regulation or ordinance with

respect to TNCs during the complained of period.
iii.

Analogous caselaw does not preclude plaintiffs’ claim

Neither Massachusetts courts nor the United States Circuit
Court of Appeals for the First Circuit (“First Circuit”) has
determined whether Uber’s conduct was permissible under the Taxi
-19-

Rules during the relevant period.

Accordingly, Uber maintains,

this Court should not interpret Rule 403 pursuant to the
doctrine propounded in Dial A Car, Inc. v. Transportation, Inc.,
82 F.3d 484, 489 (D.C. Cir. 1996), which it contends is “the
leading case” on the issue at hand and dispositive.
The Dial a Car doctrine is a prudential principle that a
federal court should not interpret an ambiguous local regulation
until the local regulator has addressed the issue. See id.

In

Dial a Car, a licensed, on-call taxi service alleged that two
defendant taxi companies were illegally providing unlicensed
taxi services within the District of Columbia.

Id. at 484.

The

plaintiff brought a Lanham Act claim alleging that defendants
misled customers by holding themselves out as an authorized
business. Id. at 488.

The Circuit Court of Appeals for the

District of Columbia affirmed dismissal of plaintiff’s claim,
explaining that it saw “no reason to reach out and apply federal
law to this quintessentially local dispute.” Id. at 488-89.
Accordingly, the court held that
there must be a clear and unambiguous statement from the
Taxicab Commission regarding [defendants’] status before a
Lanham Act claim can be entertained.
Id. at 489.
The reasoning in the Dial a Car decision is not controlling
with respect to the issue before this Court if for no other
-20-

reason than that the First Circuit has neither adopted nor cited
the case.
Furthermore, the Dial a Car court’s justification for
abstention, grounded in principles of federalism, does not apply
to the unfair competition claims of these plaintiffs.

The D.C.

Circuit Court took particular issue with the fact that the claim
in that case was brought under the Lanham Act in an effort to
transform a federal statute “into a handy device to reach and
decide all sorts of local law questions.” Id. at 491.

In the

present case, by contrast, plaintiffs rely on state regulations,
statutes and common law that is designed to hold a business to a
“standard of lawfulness.”

See J.E. Pierce Apothecary, Inc. v.

Harvard Pilgrim Health Care, Inc., 365 F. Supp. 2d 119, 145 (D.
Mass. 2005) (emphasis in original).

Under the regulations of

the Attorney General of Massachusetts, an act or practice
violates Chapter 93A, § 2 if it “fails to comply with existing
statutes, rules, regulations or laws” meant for the protection
of the public’s health, safety or welfare. 940 Code Mass. Regs.
3.16(3).

Uber does not dispute that the Taxi Rules are designed

for the public’s health, safety or welfare and there is
no reason to assume that [section 3.16(3)] ought not apply
to claims brought pursuant to section 11 [of Chapter 93A].
J.E. Pierce Apothecary, 365 F. Supp. 2d at 145.

-21-

Even if the Dial a Car doctrine applied to this case,
Uber’s application of it is inapposite.

The D.C. Circuit Court

acknowledged that a regulation might “be so clear on its face
that no good faith doubt concerning its interpretation would be
possible.” Dial A Car, 82 F.3d at 489 n. 3.

In such a case, the

Court explained, no explicit statement from the municipal
regulator would be necessary.

Because the Court found that the

regulatory scheme in the Dial a Car case was, “at the very
least, ambiguous with regard to the legality” of the defendants’
conduct, the regulation was found insufficiently clear for
Lanham Act purposes. Id.
In sharp distinction, the regulatory scheme in this case is
“so clear on its face that no good faith doubt concerning its
interpretation” is possible. Under the rubric of Rule 403, Uber
is a
corporation . . . having charge of a . . . private vehicle
[that] offer[s] the vehicle for hire for the purpose of
transporting . . . a passenger or passengers.
Those vehicles were not, at the operative time, licensed as
hackney carriages by the Police Commissioner.

A response from

Uber that it did not “hav[e] charge” of the vehicles is
underwhelming.

If this Court were to find that Uber did not

have control over its drivers, then its business model would
consist of aiding and abetting the “private vehicle[s]” of those
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drivers, none of which was licensed as a hackney carriage by the
Police Commissioner.

Under either reading, there is “no good

faith doubt” that Uber was (during the subject interlude and if
the facts alleged are proved) engaged in unlawful behavior. See
id. at 489 n. 3.
For all of these reasons, the Dial a Car doctrine does not
compel this Court to dismiss plaintiffs’ unfair competition
claims.
iv.

Uber is not exempt from Chapter 93A liability

Chapter 93A exempts from liability
transactions or actions otherwise permitted under laws as
administered by any regulatory board or officer acting
under statutory authority of the Commonwealth.
M.G.L. c. 93A, § 3.
Uber contends that it was exempt from Chapter 93A because
the Commonwealth authorized its conduct.

It has failed,

however, to satisfy the rigorous requirements for application of
that statutory safe haven.
“Defendants have the burden of proving the exemption” and
that burden is a “heavy one”. See Fleming v. National Union Fire
Ins. Co., 445 Mass. 381, 389 (2005). A defendant must show that
the Commonwealth’s regulatory scheme “affirmatively permits the
practice which is alleged to be unfair or deceptive.” Id. at 390
(quotation omitted).
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Uber relies on three arguments.

First, it repeats its

contention that Rule 403 never applied to it or to its drivers.
That argument fails for the reasons articulated above.
Second, it emphasizes that Rule 403 was not enforced
against it.

Drawing all inferences in favor of the plaintiffs,

as the Court must do at this stage, they have plausibly alleged
that Rule 403 or its equivalent in other municipalities was, at
least occasionally, enforced against Uber drivers.

Even if that

were not the case, regulatory forbearance is insufficient to
prompt exemption under § 3.

A defendant must show that the

regulatory scheme “affirmatively permits the practice which is
alleged to be unfair or deceptive.” Id. (emphasis added).
Failure to enforce a regulation is insufficient.
Finally, Uber submits that the TNC Act codified the fact
that the Taxi Rules did not apply to it.

The Court disagrees.

Massachusetts courts interpret statutes with a presumption
against retroactivity.

See generally Fed. Nat. Mortg. Ass’n v.

Nunez, 460 Mass. 511 (2011).

Accordingly, a statute only

applies retroactively if it is “unequivocally clear . . . from
the words, context or objects” of the statute that the
legislature intended it to be retroactive in operation. Smith v.
Massachusetts Bay Transp. Auth., 462 Mass. 370, 377 (2012).

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No

such “unequivocally clear” intention is evident from the TNC
Act.
Uber’s conduct is not exempted from liability under Chapter
93A, section 3.
v.

Other litigation involving Uber does not compel
dismissal

Uber cites a number of cases in which taxi companies have
brought actions involving unfair competition and regulation of
TNCs.

The Court agrees with defendant that, since the TNC Act

was enacted, Uber has not been required to comply with local
taxi ordinances. Accord Boston Taxi Owners Ass’n, Inc. v. City
of Boston, 223 F. Supp. 3d 119, 122 (D. Mass. 2016).

On the

other hand, no case that Uber cites justifies dismissal of
plaintiffs’ unfair competition claims given the relevant law,
alleged facts and regulatory framework.
Some of the cases Uber cites are simply beside the point.
For instance, plaintiffs do not challenge the legality of the
Taxi Rules or the TNC Act. Contra, e.g., Boston Taxi Owners
Ass’n, Inc. v. Baker, 2017 WL 354010 (D. Mass. Jan. 24, 2017),
appeal dismissed, 2017 WL 3758297 (1st Cir. Mar. 27, 2017);
Illinois Transportation Trade Ass’n v. City of Chicago, 839 F.3d
594, 599 (7th Cir. 2016), cert. denied sub nom. Illinois Transp.
Trade Ass’n v. City of Chicago, Ill., 137 S. Ct. 1829 (2017)

-25-

(dismissing equal protection and takings challenges to the City
of Chicago’s TNC ordinance).
Other cases upon which Uber relies depend on different
operative law.

The California Public Utilities Code, for

example, forbids courts, except the California Supreme Court and
Court of Appeal, from hindering or interfering with the
California Public Utilities Commission’s exercise of regulatory
authority. See A White & Yellow Cab, Inc. v. Uber Techs., Inc.,
2017 WL 4642346, at *3-4 (N.D. Cal. Oct. 17, 2017) (dismissing
plaintiff’s unfair competition and unfair practices claims
because a ruling in plaintiff’s favor would “hinder or interfere
with a broad and continuing CPUC program”) (citing California
Public Utilities Code § 1759(a)) (additional citation omitted).
Massachusetts state law has a more expansive understanding
of unfair competition than do other states. Cf. Checker Cab
Philadelphia, Inc. v. Uber Techs., Inc., 689 F. App’x 707, 709
(3d Cir. 2017) (explaining that, under Pennsylvania law, unfair
competition is limited to an entity passing off its product as
another, dishonest statements, tortious interference with
contract or intellectual property theft) (citations omitted);
Greenwich Taxi, Inc. v. Uber Techs., Inc., 123 F. Supp. 3d 327,
340 (D. Conn. 2015) (stating that, under Connecticut law, unfair
competition is guided by the Federal Trade Commission’s
-26-

“cigarette rule”).

Chapter 93A, by contrast, renders violations

of public safety regulations actionable. See 940 Code Mass.
Regs. 3.16(3).
Finally, Uber cites a handful of cases where courts have
relied on Dial a Car to find that plaintiffs could not state a
claim for unfair competition based on regulatory violations.
Those cases, too, are of no consequence.

For instance, in Manzo

v. Uber Techs., Inc., 2014 WL 3495401, at *4 (N.D. Ill. July 14,
2014), the court maintained that the ordinance at issue was
ambiguous. Id. (explaining that whether a smartphone equipped
with Uber constituted a “taximeter” as that term was defined by
the city ordinance was ambiguous).

This Court has explained why

the regulatory framework at issue here is unambiguous.
Uber fails to distinguish cases where courts have allowed
unfair competition claims based on Uber’s non-compliance with
local regulation.

See, e.g., The Yellow Cab Co. v. Uber Techs.,

Inc., 2015 WL 4987653, at *5-6 (D. Md. Aug. 19, 2015) (finding
that plaintiffs demonstrated a possibility of success on their
common law unfair competition claim because the “expansive
scope” of Maryland’s unfair competition law does not impose a
fraud or deceit requirement). Most importantly, Uber fails to
distinguish the similar claims with which it has already been
confronted in this Court.
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Although the facts and legal arguments vary somewhat, this
Court held that plaintiffs had sufficiently stated a claim that
Uber unfairly competes with plaintiffs, in violation of
Chapter 93A, [] by operating its service without incurring
the expense of compliance with Massachusetts law and Boston
ordinances.
Boston Cab Dispatch, Inc. v. Uber Techs., Inc., 2014 WL 1338148,
at *6-7 (D. Mass. Mar. 27, 2014).
The Court also found that plaintiffs had stated a common
law unfair competition claim based upon the same conduct. Id. at
*7.

Defendant does not distinguish Boston Cab from the present

action.

Indeed, it does not cite that case anywhere nor explain

why this Court should rule differently than it did before.4
Court finds no reason to do so.

The

Plaintiffs have state a claim

for unfair competition.
Accordingly, defendant’s motion to dismiss will, with
respect to the statutory and common law unfair competition
claims, be denied.
2.

Attempt to monopolize under the Sherman Antitrust Act,
15 U.S.C. § 2 and the Massachusetts Antitrust Act,
M.G.L. c. 93 § 5
The Malden, Dot Ave, Max Luc and Taxi Maintenance
plaintiffs all bring actions for attempt to monopolize in

In its proposed reply memorandum Uber proffers an unconvincing
distinction. It contrasts the magistrate judge’s analysis of
the plaintiffs’ Lanham Act claim with the unfair competition
claim before this Court but it fails to distinguish the unfair
competition claim in the earlier case with the unfair
competition claim here.
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violation of the Sherman Antitrust Act and the Massachusetts
Antitrust Act, M.G.L. c. 93 § 5.5
Plaintiffs argue that Uber has attempted to drive taxi
companies out of business through the use of its allegedly
predatorily priced UberX service.

Defendants respond that

plaintiffs have not met the high burden of alleging a predatory
pricing claim.
Section 2 of the Sherman Act makes it illegal to
monopolize, or attempt to monopolize, or combine or
conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several States,
or with foreign nations.
15 U.S.C. § 2.
To state a monopolization claim under § 2, a plaintiff must
adequately allege that defendant (1) has monopoly power in the
relevant market and (2) has engaged in illicit “exclusionary
practices” with “the design or effect of protecting or enhancing
its monopoly position.” Sterling Merch., Inc. v. Nestle, S.A.,
656 F.3d 112, 125 (1st Cir. 2011) (quoting Coastal Fuels of
P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 195 (1st
Cir. 1996) (internal citation omitted)).
One kind of exclusionary practice is the practice of
“predatory pricing”.

In this scheme, a company reduces the

Neither party contends that the legal standard varies for the
state law claim.
-295

price of its product to below cost, hoping to drive competitors
out of business and then raise prices once it has achieved a
monopoly position. See Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 584-585, n. 8 (1986).

To succeed on

a predatory pricing claim a plaintiff must demonstrate that
the prices complained of are below an appropriate measure
of its rival’s costs . . . [and that the competitor had] a
dangerous probability of recouping its investment in belowcost prices.
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S.
209, 222, 224 (U.S. 1993).
Because an economically unsound approach by a competitor
could actually benefit consumers, plaintiffs must explain with
particularity “just what the arrangements were and why they
plausibly constituted antitrust violations.” See Am. Steel
Erectors v. Local Union No. 7, Int'l Ass’n of Bridge,
Structural, Ornamental & Reinforcing Iron Workers, 815 F.3d 43,
71 (1st Cir. 2016) (quoting Stop & Shop Supermarket Co. v. Blue
Cross & Blue Shield of R.I., 373 F.3d 57, 65 (1st Cir. 2004)).
Plaintiffs fail to allege facts supporting a predatory
pricing claim.
Plaintiffs do not allege that Uber’s services were priced
below Uber’s costs.

Accordingly, they have failed to “explain

in detail” why Uber’s conduct constituted an antitrust
violation. See id.

No complaint alleges any facts with respect
-30-

to Uber’s costs.

Instead, the Malden complaint repeatedly

states that Uber employs a “below-cost pricing scheme”.

Such

“threadbare recitals of a cause of action’s elements, supported
by mere conclusory statements, do not suffice” survive the
motion to dismiss stage. Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555).
Plaintiffs repeatedly allege that UberX was priced below
the cost of a taxi.

But to state a claim for antitrust injury

from a rival’s low prices, a plaintiff must allege that “the
prices complained of are below an appropriate measure of its
rival’s costs.” See Brooke Group, 509 U.S. at 222 (emphasis
added).
Plaintiffs attempt to bolster their predatory pricing
claims by noting that Uber has lost “billions of dollars”.

That

allegation lacks the particularity required from an antitrust
plaintiff.

If Uber’s “unconventional approach is economically

unsound,” then it may just be “a boon to consumers.” Am. Steel
Erectors, 815 F.3d at 71 (quoting Brooke Group, 509 U.S. at
224).

Without specific factual allegations as to Uber’s costs,

plaintiffs’ invocation of Uber’s annual deficits is unavailing.
Because plaintiffs have failed adequately to allege a claim
for predatory pricing, the defendants’ motion to dismiss will,
with respect to plaintiffs’ antitrust claims, be allowed.
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3.

Aiding and abetting and civil conspiracy to engage in
unfair competition in violation of the common law and
the Massachusetts Consumer Protection Act, M.G.L. c.
93A

The Anoush and Taxi Maintenance plaintiffs each allege a
different theory of civil conspiracy to engage in unfair
competition in violation of the common law and Massachusetts
statutory law.

The Anoush plaintiffs allege that Uber conspired

with its independent contractor, third-party drivers.

The Taxi

maintenance plaintiffs allege that the individual defendants,
Uber and Uber’s employees entered into a common conspiracy.
Both conspiracy claims include allegations that Uber had a
common plan, design and agreement to operate in violation of the
Taxi Rules.
Under Massachusetts law, a defendant may be liable for
aiding and abetting a tort where
(1) a third-party committed the relevant tort; (2) the
defendant knew the third-party was committing the tort; and
(3) the defendant actively participated in or substantially
assisted in the commission of the tort.
Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 616 (D. Mass. 2016)
(citing Go–Best Assets Ltd. v. Citizens Bank of Mass., 463 Mass.
50, 64 (2012); Restatement (Second) of Torts § 876(b) (1977)).
Massachusetts courts recognize a tort of civil conspiracy
that is a form of vicarious liability for the tortious conduct
of others. Snyder v. Collura, 812 F.3d 46, 52 (1st Cir.), cert.
denied, 136 S. Ct. 2517 (2016) (citing Taylor v. Am. Chemistry
-32-

Council, 576 F.3d 16, 34 (1st Cir. 2009)).

To state a claim for

civil conspiracy, a plaintiff must allege that the conspiring
parties agreed to or assisted in committing the underlying tort.
Taylor, 576 F.3d at 35 (citations omitted).
First, the Court notes that (as it has already found) it
lacks personal jurisdiction over the individual defendants.
With respect to the Taxi Maintenance plaintiffs’ contention that
Uber conspired with its employees, the claim is legally
untenable.

No civil conspiracy can exist under plaintiffs’

theory because “an entity cannot conspire with itself.”

Platten

v. HG Bermuda Exempted Ltd., 437 F.3d 118, 131 (1st Cir. 2006).
The Anoush plaintiffs’ theory represents a more belt-andsuspenders approach to pleading.

In Count I of their complaint

they allege that Uber controls and manages its drivers, such
that Uber is directly liable for violating Chapter 93A.

Their

claims of civil conspiracy and aiding and abetting, (Counts III
and IV), however, resort to Plan B.

They allege that if Uber

did not violate the Taxi Rules, they facilitated the violation
of those rules by assisting Uber drivers in an unlawful
business.
Plaintiffs have pled facts sufficient to establish that
Uber gave substantial assistance to its drivers to violate the
Taxi Rules.

Both Uber and the plaintiffs agree that Uber
-33-

classifies its drivers as “independent third-party drivers”.
Both parties agree that Uber connects the drivers to passengers
through its smart phone application and that Uber collects the
fares for its drivers.

The parties disagree on the issue of

whether Uber’s drivers were subject to the Taxi Rules.
This Court finds that the text of Rule 403 clearly applies
to Uber drivers.

If Uber denies that it “controls” the drivers

(such that it is not subject to direct liability), it cannot
dispute that its drivers drove
other private vehicle[s] [that were] offer[ed] for hire for
the purpose of transporting . . . passengers [and that
those vehicles were not] licensed as a hackney carriage by
the Police Commissioner.
Finally, plaintiffs have pled facts sufficient to indicate,
if proved, that Uber had knowledge that its drivers were
committing torts. See also Boston Cab Dispatch, Inc. v. Uber
Techs., Inc., 2015 WL 314131, at *6-7 (D. Mass. Mar. 27, 2014)
(denying defendant’s motion to dismiss where plaintiffs alleged
that Uber competed unfairly in violation of the common law and
M.G.L. c. 93A, § 11).
Uber claims that it does not control its drivers but rather
that the drivers are independent contractors.

The courts in

which it has proffered such claims have not necessarily seen it
that way.

See, e.g., O'Connor v. Uber Techs., Inc., 82 F. Supp.

3d 1133, 1135 (N.D. Cal. 2015) (denying Uber’s motion for
-34-

summary judgment that Uber drivers are independent contractors
as a matter of law); Mumin v. Uber Techs., Inc., 239 F. Supp. 3d
507, 532 (E.D.N.Y. 2017) (holding that plaintiff stated a
plausible overtime claim under New York labor law under theory
that Uber misclassified its drivers as independent contractors);
Razak v. Uber Techs., Inc., 2016 WL 5874822, at *5 (E.D. Pa.
Oct. 7, 2016) (holding that Uber driver stated a plausible claim
under state and federal labor law that they were employees of
Uber).

Based on the litigated position of Uber, then,

plaintiffs have stated a plausible claim.
Defendants’ motion to dismiss the conspiracy and aiding and
abetting claims will, with respect to the claim of the Taxi
Maintenance plaintiffs, be allowed but, with respect to the
claim of the Anoush plaintiffs, be denied.
4.

Interference with advantageous business relationships

The Taxi Maintenance plaintiffs bring a count of
interference with advantageous business relationships.

They

allege that Uber interfered with identifiable business
relationships through improper means with improper motives.
Uber responds that the complaint alleges that it interfered with
the “market-at-large”, which is insufficiently precise to state
a claim.

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According to Massachusetts law, a claim for tortious
interference with advantageous business relationships requires
four elements: (1) the plaintiff was involved in a business
relationship or anticipated involvement in one, (2) the
defendant knew about the relationship, (3) the defendant
intentionally interfered with the relationship for an improper
purpose or by an improper means and (4) the plaintiff suffered
damages as a result. Pembroke Country Club, Inc. v. Regency Sav.
Bank, F.S.B., 62 Mass. App. Ct. 34 (2004) (citing United Truck
Leasing Corp. v. Geltman, 406 Mass. 811, 812, 815–17 (1990)).
To demonstrate an anticipated business relationship, a plaintiff
must show that it “had a probable future business relationship
anticipating a reasonable expectancy of financial benefit.”
Brown v. Armstrong, 957 F. Supp. 1293, 1305 (D. Mass. 1997),
aff’d, 129 F.3d 1252 (1st Cir. 1997) (citation omitted).

A

plaintiff cannot rely on speculative future relationships but
must allege that a specific business relationship existed
between itself and the potential customer. See Sherman v. Clear
Channel Outdoor, Inc., 889 F. Supp. 2d 168, 177 (D. Mass. 2012).
Plaintiffs claim that they had a prospective business
relationship with every person seeking ride-hailing services in
the City of Boston.

They explain that, before Uber began

operating in Boston, “every individual seeking for-hire services
-36-

in Boston was a de facto customer” of the regulated taxi
companies.

That evanescent, hypothetical relationship lacks the

specificity required to survive a motion to dismiss.
A plaintiff “may not speculate about future business
relationships when alleging this tort.” Singh v. Blue Cross/Blue
Shield of Massachusetts, Inc., 308 F.3d 25, 48 (1st Cir. 2002).
Instead, they must allege “a specific business relationship that
was interfered with by [defendant].” See id.

The “mere

possibility that [their] proposal would be accepted by [the
customers] is not sufficient.” Sherman, 889 F. Supp. 2d at 177.
Because plaintiffs have failed to allege that they were
involved in a specific anticipated business relationship,
defendants’ motion to dismiss for failure to state a claim upon
which relief can be granted will be allowed. Cf. Moving &
Storage, Inc. v. Panayotov, 2014 WL 949830, at *3 (D. Mass. Mar.
12, 2014) (allowing motion to dismiss because the class of
alleged customers included “any individual who may need moving
services in the future”).
ORDER

For the foregoing reasons, the motion to dismiss of
defendants Travis Kalanick and Garrett Camp (Docket No. 70), is
ALLOWED and the consolidated motion to dismiss of defendants
Uber, Travis Kalanick and Garrett Camp (Docket No. 72) is, with
respect to the claims of antitrust violation and interference
-37-

with advantageous business relationships and the Taxi
Maintenance claim of civil conspiracy, ALLOWED, but is otherwise
DENIED.
The following claims of the named plaintiffs remain
pending:
1) the claims of all plaintiffs for unfair competition under
the common law and M.G.L. c. 93A § 11.
2) the claims of the Anoush plaintiffs for:
a)

aiding and abetting unfair competition in
violation of the common law and M.G.L. c.
93A, and

b)

civil conspiracy to commit unfair
competition in violation of the common law
and M.G.L. c. 93A.

So ordered.
/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated December 29, 2017

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