United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
case involves a suit by taxi medallion holders (“the
Anoush plaintiffs” or “plaintiffs”) in the
Greater Boston area who allege that Uber Technologies, Inc.
and Raiser, LLC (collectively “Uber” or
“defendants”) competed unlawfully and unfairly in
the on-demand, ride-hail ground transportation market in and
around Boston, Massachusetts.
City of Boston has traditionally regulated taxis under a set
of municipal rules, ordinances and regulations (“Taxi
Rules”), for which the Police Commissioner has the
exclusive authority to regulate hackney carriages and hackney
stands. In 2008, the Boston Police Department
(“BPD”) issued the Hackney Carriage Rules and
Flat Rate Handbook (“Rule 403”), which regulates
hackney carriage fares, medallions and hackney licenses,
among other things. Rule 403 also incorporates a previously
promulgated Vehicle for Hire Ordinance (“the Boston
Ordinance”), which provides in relevant part:
no person, firm, or corporation driving or having charge of a
taxicab or other private vehicle shall offer the vehicle for
hire for the purposes of transporting, soliciting and/or
picking up a passenger or passengers unless said person is
licensed as a hackney driver and said vehicle is licensed as
a hackney carriage by the Police Commissioner.
Boston Code 16-15.05: Vehicle for Hire Ordinance;
see also Appendix I to Rule 403. The
Hackney Department of the BPD is largely charged with
implementing these Taxi Rules.
June, 2013, following separate conversations between Uber
management and the Hackney Department on the one hand, and
Uber and senior staff in the Mayor's office on the other,
Uber launched its own peer-to-peer (“P2P”)
application, UberX. With respect to UberX, Uber did not
require its drivers to comply with Rule 403 or the Boston
Ordinance because its management believed that the Taxi Rules
applied only to taxi cabs, not transportation network
companies (“TNCs”) such as Uber.
thereafter, uniformed officers began ticketing Uber drivers
for violating a variety of municipal and state regulations,
including the Boston Ordinance. From roughly July, 2013, to
January, 2015, Uber acknowledged hundreds of police citations
issued to UberX drivers. Although some drivers successfully
challenged those tickets in court, Uber routinely reimbursed
all other charged drivers. During this same time period,
while Uber reimbursed its drivers for the cost of tickets,
the Mayor's office made somewhat contradictory statements
suggesting that the Taxi Rules did not apply to TNCs.
regulatory uncertainty persisted until August, 2016, when the
Massachusetts legislature enacted the Transportation Network
Companies Act (“the TNC Act”). See
M.G.L. c. 159A ½. The TNC Act preempts municipalities
from regulating TNCs through local municipal rules and vests
regulatory jurisdiction in the Massachusetts Department of
Public Utilities and the Massachusetts Port Authority.
See id. at § 10.
this Court's order which allowed, in part, and denied, in
part, defendants' motion to dismiss (Docket No. 96), the
parties submitted cross motions for summary judgment with
respect to plaintiffs' claims for unfair competition from
June, 2013, to August, 2016 (“the alleged unlawful
conduct period”). Plaintiffs have moved for partial
summary judgment on their claim of liability (under Chapter
93A and common law) and defendants' § 3 and
superseding cause defenses. Defendants have moved for summary
judgment on plaintiffs' claim of liability (under Chapter
93A and common law) and on its res judicata and
§ 3 defenses.
reasons set forth below, both parties' motions will be
denied (with the exception of plaintiffs' motion for
partial summary judgment on defendants' § 3 defense)
and the Court will promptly convene a bench trial in
accordance with this opinion.
role of summary judgment is to assess the proof in order to
see whether there is a genuine need for trial. Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The
burden is on the moving party to show, through the pleadings,
discovery and affidavits, that there is “no genuine
dispute as to any material fact and that the movant is
entitled to judgment as a matter of law”. Fed.R.Civ.P.
56(a). A fact is material if it “might affect the
outcome of the suit under the governing law”.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A genuine issue of material fact
exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return
a verdict for the nonmoving party”. Id.
moving party has satisfied its burden, the burden shifts to
the nonmoving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986). The
Court must view the entire record in the light most favorable
to the nonmoving party and indulge all reasonable inferences
in that party's favor. O'Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary
judgment is appropriate if, after viewing the record in the
nonmoving party's favor, the Court determines that no
genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law. Celotex
Corp., 477 U.S. at 322-23.
parties file cross-motions for summary judgment on a
particular count, the Court must assess each motion
separately and determine whether there is any genuine issue
of material fact and whether either movant is entitled to
judgment. Phillip Morris Inc. v.
Harshbarger, 122 F.3d 58, 62 n. 4 (1st Cir. 1997).
Cross Motions for Summary Judgment
Chapter 93A Liability
successful under M.G.L. c. 93A, § 11, plaintiffs must
establish 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, § 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).
Liability under § 2(c)
the Court finds that plaintiffs are not entitled to summary
judgment on liability based on § 2 per se unfairness.
Pursuant to § 2, paragraph (c) of Chapter 93A, the
Massachusetts Attorney General promulgated 940 C.M.R. §
3.16, which provides that an act or practice violates Chapter
93A, § 2 if:
[i]t fails to comply with existing statutes, rules,
regulations or laws, meant for the protection of the
public's health, safety, or welfare promulgated by the
Commonwealth or any political subdivision thereof intended to
provide the consumers of this Commonwealth protection.
940 C.M.R. § 3.16(3).
this Court finds that the Taxi Rules were designed for the
public's health, safety and welfare, the First Circuit
Court of Appeals (“First Circuit”) has held that
§ 3.16 does not apply to business-to-business disputes
under § 11. See LimoLiner, Inc.
v. Dattco, Inc., 809 F.3d 33, 36 (1st Cir.
2015) (concluding that § 3.16 does not apply to
business-to-business disputes) but see Limoliner,
Inc. v. Dattco, Inc., 57 N.E.3d 969,
976 n.11 (2016) (noting the general dispute among courts as
to whether the Attorney General's regulations pursuant to
Chapter 93A apply only to consumers).
this Court declines to find, as a matter of law, that
Uber's failure to comply with the Taxi Rules constitutes
a per se violation under § 2(c).
Unfair Practices and Competition
disposed with the § 3.16 claim for per se unfairness,
the Court turns to the parties' respective arguments on
whether Uber's conduct during the alleged unlawful
conduct period 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.
Exxon Mobil Corp.
Gen., 94 N.E.3d 786, 792 (Mass. 2018) (defining