Anoush Cab, Inc. v. Uber Tech. Inc.

Court: Court of Appeals for the First Circuit
Date filed: 2021-08-06
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          United States Court of Appeals
                     For the First Circuit


No. 19-2001

  ANOUSH CAB, INC.; ARAMS, INC.; ARARRAT, INC.; ATLANTIC CAB,
 INC.; BARLOW CAB, INC.; BEDROS CAB, INC.; BOYLSTON CAB, INC.;
BRIGHAM CAB, INC.; CLEVELAND CAB, INC.; DIAMOND CAB, INC.; ELSIE
 CAB, INC.; FENWAY TAXI,INC.; G&A CAB, INC.; JORDAN CAB, INC.;
JUBRAN CAB, INC.; KILMARNOCK CAB,INC.; LITTLE ISLAND CAB, INC.;
 LOCUST CAB, INC.; LONGWOOD CAB, INC.; M & AN CAB, INC.; M.P.E.
 CAB, INC.; MARBED CAB, INC.; MASSIS, INC.; MESROB, INC.; N.E.
CAB, INC.; ORIOLE CAB, INC.; PETERBOROUGH CAB, INC.; QUEENSBURY
  CAB,INC.; SAHAG, INC.; SOVEREIGN CAB, INC.; V & A CAB, INC.;
        VERAS, INC.; VICKYS, INC.; YELLOWBIRD CAB, INC.,

                    Plaintiffs, Appellants,

  GILL & GILL, INC.; NANAK NAAM, INC.; AMRITSAR EXPRESS, INC.;
  SONNY AND BOBBY TRANS., INC.; GILL TRANS., INC.; FINOS TAXI,
  INC.; CHARLENE TAXI, INC.; MYTASHA TAXI, INC.; WYOMING CAB,
  INC.; EDWARD'S TAXI, INC.; CURTIS CAB, INC.; MY FATHER TAXI,
INC.; MIC-PAUL TAXI, INC.; A. STACY TAXI, INC.; PATTI PIE TAXI,
 INC.; MCGAFF TAXI, INC.; RAWAN TAXI, INC.; SPRING TAXI, INC.;
 SUMMERS TAXI, INC.; AUTUMN TAXI, INC.; WINTERS TAXI, INC.; BOW
STREET TAXI; BLUE KNIGHT TAXI, INC.; CHELE TAXI, INC.; CHRISTMAS
  TAXI, INC.; GES TAXI, INC.; GRAND SPORT TAXI, INC.; BREENIE
 TAXI, INC.; LIL'S TAXI, INC.; CLAIRE TAXI, INC.; DON-LIL TAXI,
  INC.; ANDY'S CAB, INC.; BOARDMAN CAB, INC.; GROVE CAB, INC.;
   SECRET SQUIRREL TAXI, INC.; NAVJIT CAB, INC.; PREED, INC.;
   NAJJAR ENTERPRISES, INC.; BILGA, INC.; JIMMY 1, INC.; ANJU
 TRANS., INC.; DEEP CAB, INC.; EMATESSE CAB, INC.; CHRISTOPHER
   CAB, INC.; DADOO CAB, INC.; GURU GOBIND CAB, INC.; AUBANEL
  TRANS., INC.; RAMC CAB, INC.; TED D. J. TAXI, INC.; MAKONNEN
  CAB, INC.; YELLOW CAB OF BELMONT, INC.; MAJID, INC.; JOUNE,
    INC.; HARE HARE TRANS., INC.; ANPAUL CAB, INC.; TABIKING
 EXPRESS, INC.; MARCIA AND EVERTON CAB, INC.; RICARDO & JOANNE
CAB, INC.; PATIENCE TAXI, INC.; TURK TRANS., INC.; NATIVITY CAB,
INC.; ROSE CAB, INC.; HAAMA TRANS, INC.; TOM'S TAXI, INC.; MERA
SOAMI, INC.; MUGAL TRANS., INC.; KHAVEERI, INC.; F. EDEL, INC.;
   ANGEREB, INC.; TREMONT STREET TAXI, INC.; GANGA, INC.; NEW
 INVISION, INC.; K. HEYDEN, INC.; BRENT TAXI, INC.; IRAJ, INC.;
SWAMI JI, INC.; GEOLANGE, INC.; ESPERANTA TAXI, INC.; SINGH CAB,
 INC.; SHIVA JI CAB, INC.; LARROUSE CAB, INC.; JAVE CAB, INC.;
TALIN CAB, INC.; LUNICA, INC.; NILE EXPRESS, INC.; SMOOTH RIDER,
INC.; E. AND ANNE TAXI, INC.; ALEN'S CAB, INC.; MEGAN CAB, INC.;
SAMUEL TRANSPORTATION, INC.; PETIT GOAVE CAB, INC.; MICHAEL CAB,
 INC.; ABSOLUTE TAXI OF CAMBRIDGE, INC.; ALTA TAXI, INC.; TARJAN
  CAB, INC.; ALEXANDRIA TRANS., INC.; KOHSAR, INC.; RIVAL CAB,
 INC.; YHWH SABAOTH, INC.; PRAISE THE LORD, INC.; HARVARD SQUARE
 CAB, INC.; FLYING CARPET CAB, INC.; MEHROSE, INC.; AMAR TRANS.,
INC.; RB CAB, INC.; CROYANCE CAB, INC.; P.I. CAB, INC.; HOMANO &
  CARL TAXI, INC.; FLEDO, INC.; J.W. CAB INC.; PIDI CAB, INC.;
     GODAVARI, INC.; ST. RICHARD TAXI, INC.; RUTH CAB, INC.;
 SATKARTAR, INC.; ELIOT CAB, INC.; WADH BAGH SINGH CAB, INC.; MY
    YASMINA CAB, INC.; TWO GIRLS TAXI, INC.; PAPESO CAB, INC.;
  ZAHIDA TRANS., INC.; YVES TAXI, INC.; YUNG CAB, INC.; PALOMA
  TRANSPORTATION, INC.; MARTHA'S TRANS., INC.; LA BOULE DE FEU,
INC.; SPLENDIDE CAB, INC.; SHOOPITE CAB, INC.; GREEN LAND, INC.;
TR CAB, INC.; FEDSEN & TEDSEN, INC.; DIEU EST BON, INC.; VICEROY
CAB, INC.; NEGES JR., CAB, INC.; RADHA SWAMI BIAS, INC.; PROMISE
  CAB, INC.; G.G.M. CAB, INC.; PABLE TAXI, INC.; BROTHERS CAB,
 INC.; KASSIE CAB, INC.; JAZZ TAXI, INC.; B GOOD CAB, INC.; OHM,
SHIVA & GANESH CAB, INC.; L'OISEAU TAXI, INC.; LYSETTE & JARDUS,
 INC.; FATIMA CAB, INC.; SELON DIEU CAB, INC.; M. & D. BROTHERS,
  INC.; LA TRINITE, INC.; LOVELY ONE, INC.; WILVENS CAB, INC.;
 GOOD TIME CAB, INC.; DOU DOU CAB, INC.; MGP TAXI, INC.; G. JOSE
 CAB, INC.; JEAHANNA TAXI, INC.; NATOU CAB, INC.; CLERNA CORP.;
  ANTONIO & FRANCO, INC.; GURU TEGH BHADUR CAB, INC.; MONA CAB,
 INC.; ERIC & MARIA CAB, INC.; CHRIS AND JUNIOR, INC.; SURPRISE
  CAB, INC.; CHENAL CAB, INC.; ANH CAB, INC.; AUGUST CAB, INC.;
KARTAR CAB, INC.; NIMRAH TRANS., INC.; JELUS CAB, INC.; ELZIRA &
 LUC CAB, INC.; BKMB, INC.; ONLY BELIEVE TAXI, INC.; NADA, INC.;
     MANOR CAB, INC.; GALEHAD TAXI, INC.; A. TAMMY CAB, INC.;
   GARVEN'S CAB, INC.; ARNOLD COURT TAXI, INC.; BBJ CAB, INC.;
 SILVA CAB, INC.; GUMAT CAB, INC.; BRIOL CAB, INC.; BEST IS BEST
CAB, INC.; MJ TAXI CAB, INC.; SAMI'S TAXI, INC.; C.T.P. I, INC.;
 ERA ET LABORA, INC.; MUNNY TRANS., INC.; HARSH CAB, INC.; SOEG
  CAB, INC.; ALDINE CAB, INC.; TIVY, INC.; ISAIH MATHEW, INC.;
 ADVANTAGE TAXI OF CAMBRIDGE, INC.; BANWAIT TRANS., INC.; CAYES
II CAB, INC.; JACQUET CAB, INC.; EBEN-EZER TAXI CAB, INC.; YOLY-
 CARVENS, INC.; SHEIKH TRANS., INC.; MY NATHALIE CAB, INC.; RED
  FISH CAB, INC.; AZIN TAXI, INC.; MEKLIT CAB, INC.; P & S TAXI
CORP.; ROBENSON TAXI, INC.; RP EXCELSIOR, INC.; MILLENNIUM TAXI,
 INC.; BB TAXI EXPRESS, INC.; TEJA TRANS., INC.; ROL & G., INC.;
 LOVE CAB, INC.; LES GENS DU NORD, INC., BHARGO INC., H & L CAB,
 INC.; DELIVRANCE CAB, INC.; TOWN TAXI OF CAPE COD, INC.; KURALA
     TRANS., INC.; TINA & NINA TRANS., INC.; MAVA TAXI, INC.;
 CAMBRIDGE CAB CONNECTION, INC.; HERNANDEZ TRANSPORTATION, INC.;
 RIL-TUL CAB, INC.; KHALSA CAB, INC.; ALPHA OMEGA CAB, INC.; T &
   J CAB, INC.; MT. EVEREST, INC.; U & I CORP.; JFL CAB, INC.;


                              -2-
DADY-PHONE, INC.; R. CANDY TAXI, INC.; VICTORIA CAB, INC.; SELAM
  TRANSPORTATION, INC.; PRO-CAB, INC.; YOTILLE CAB, INC.; ABCD
  TAXI, INC.; NKB CAB, INC.; MARCUS CAB, INC.; ELPOORAG, INC.;
   KENDRA CORPORATION; BRITNEY CAB, INC.; ELAN CAB, INC.; JAI
   GURUDEV CORPORATION; DOPHY TAXI, INC.; DREAMERS CAB, INC.;
WALGER, INC.; DESDUNES UNITED, INC.; PATRICK TAXI, INC.; DOUCEUR
   CAB, INC.; JE CROIS EN DIEU, INC.; MT. CARMELLE TAXI, INC.;
ABBED CAB, INC.; ADDIS CAB, INC.; ARIEL & JAPHETH, INC.; BETHEL
 CAB, INC.; CHARLIE CAB, INC.; CORETTA, INC.; CYRILO CAB, INC.;
   DALESHA TAXI, INC.; DESDUNES CAB, INC.; ELYSSE CORPORATION;
FIRST STREET CAB, INC.; G & E. CAB, INC.; GL CAB, INC.; GOH CAB,
   INC.; GAGAN TAXI, INC.; JACQUELINE CAB, INC.; JEREMIE TAXI,
 INC.; LOUINE CAB, INC.; M. ANGELO CAB, INC.; NAHAR SINGH CAB,
 INC.; NEK FAB, INC.; O.D.J. TAXI, INC.; ONKAR CAB, INC.; PH &
KN, INC.; RADHA TRANS., INC.; RANDAH CAB, INC.; S & J INC.; TWO
  BOYS CAB, INC.; VIRGINIA CAB, INC.; WINDSOR CAB, INC.; ZANDO
   CAB, INC.; AHRAM CAB, INC.; AN YIN PA TA, INC.; ANDERSON &
  JOSHUA CAB, INC.; ANNA CAB, INC.; ARISTOCRATS AMBIANCE TAXI,
 INC.; BAINET CAB, INC.; BAY CITY TAXI, INC.; BIBI'S CAB, INC.;
C.E.F. CAB, INC.; CAMBRIDGE CLASSIC CAB, INC.; CAYES CAB, INC.;
 CENTRAL SQUARE, CAB, INC.; CLEO TAXI, INC.; DEMOSTERNE, INC.;
    EAGLE TAXI, INC.; EL CHALDAY, INC.; ELIZABETH CAB, INC.;
  ENCHANTE TAXI, INC.; EUREKA CAB, INC.; FARB, INC.; G & J CAB
  INC.; GIORGIO'S CAB, INC.; GOLDEN TEMPLE TRANS., INC.; GREEN
 STRIPE CAB, INC.; GURU TRANS., INC.; HAWELTI CAB, INC., HOSANA
   TAXI, INC., ITA CAB, INC.; IMPECCABLE TRANS, INC.; JMF CAB,
  INC.; JV TAXI, INC.; JEZIL CAB, INC.; JOYSE CAB, INC.; KARIM
CAB, INC.; KESHIA CAB, INC.; KEVIN TAXI, INC.; KRISHANA TRANS.,
  INC.; KRISHNA KRISHNA TRANS., INC.; LARRIEUX CAB, INC.; LELE
CAB, INC.; LEXINGTON TAXI, INC.; MIT CAB, INC.; MARK & S, INC.;
 MAS TAXI, INC.; MELCHISEDEK CAB, INC.; MIRKA, INC.; MOGADISHU
CAB, INC.; NAJU, INC.; NELCHERI CAB, INC.; NO NO CAB, INC.; P &
G CAB, INC.; P & P DUMERANT CORP.; PAFOU CAB, INC.; PAPU, INC.;
PAUL CAB, INC.; QUEEN JESSICA CAB, INC.; RAAVI TRANS., INC.; RAI
 TRANSPORTATION, INC.; RED CAB OF WORCESTER, INC.; RENEE TAXI,
INC.; RENETTE & FRANCKLYN, INC.; RIOS GON CAB, INC.; ROCK SOLID
  & MOMONE, INC.; ROLY CAB, INC.; SASUN CAB, INC.; SATNUM CAB,
 INC.; SEA WALL TAXI, INC.; SHANI TAXI, INC.; SUNSET CAB, INC.;
  SYMPHONY TAXI, INC.; TT, INC.; TAXI TECHNOLOGY, INC.; TAYLOR
  TAXI, INC.; TELFORT CAB, INC.; ULYSSE TRANS. HOLDING, CORP.;
 ULYSSE'S CAB, INC.; YO YO CAB, INC.; YOU TOO CAB, INC.; ZICKY
CAB, INC.; 116 CAB, INC.; HANEF TRANS., INC.; TRISTAN & VANESSA
CAB, INC.; BINYAMIN CAB, INC.; CATHUL, INC.; CHRISTOPHER'S CAB,
 INC.; DILLONS TRANS., INC.; MARZENEB, INC.; MESHUALEKIA, INC.;
 PHATRICKSEY CAB, INC.; YOU AND I CAB, INC.; BENITO & ROSELINE
CAB, INC.; DE LEREBOURS, INC.; LARACINE, INC.; LEYNA CAB, INC.;
 MOBARAK CAB, INC.; REHAM CAB, INC.; ROSAMELIA INC.; SJP TAXI,


                              -3-
INC.; THOMAS FAMILY, INC.; GADL CAB, INC., LIDETA CAB, INC.; KBS
CAB, INC.; MSW TAXI, INC.; MAHNOOR TRANS., INC.; PAL TAXI, INC.;
ROODY'S CAB, INC.; C & G LEASING, INC.; LA DILIGENCE, INC.; HARE
KRISHNA TRANS., INC.; JOJO E.M. CAB, INC.; JANE MARY CAB, INC.;
JEFFREY & TANISHA, INC.; JEHOVAH JUREH, INC.; KALKAT CAB, INC.;
  HIRAM'S TAXI, INC.; STEFAN TUROLSKI; DEFER CAB, INC.; SHREE
 GANESH CAB, INC.; CADOUX TAXI, INC.; DERUKA TAXI, INC.; FAFOU
 CAB, INC.; M AND J CAB, INC.; N M R CAB, INC.; NOOR CAB, INC.;
 PAUL PARAS; PUNJAB TRANS., INC.; SWEET ROSE TRANS., INC.; TAJ
  TRANS., INC.; TAKE IT EZ CAB, INC.; YOUSSEF, INC.; BETRU AMI
CORP.; CROSSROAD TRANS. INC.; HATTIE CAB, INC.; HIMALAYA, INC.;
 IQRA ENTERPRISE, INC.; JASON CAB, INC.; MCG CAB, INC.; MANHAR,
  INC.; MICASTA CAB, INC.; NEXT CAB, INC.; PARVATI CAB, INC.;
RODNEY CAB, INC.; SJ CAB, INC.; SATLOUJ, INC.; SEVEN HILLS TAXI,
 INC.; TI LOU LOU CAB, INC.; DALUL, INC.; FRANKLIN TAXI, INC.;
   LES-MAR TAXI, INC.; BERN. & Y. CAB, INC.; DEBRA CAB, INC.;
  EDWARD NOEL, INC.; GOD IS GOOD, INC.; JUDE CAB, INC.; YAHWEH
CAB, INC.; BABA NANAK CAB, INC.; CARLON TRANS., INC.; MATELOTS,
INC.; MEW CAB, INC.; NANCY CAB, INC.; ON Y VA TAXI, INC.; BENBEN
CAB, INC.; BENO CAB, INC.; C.T.P. II, INC.; D Q DONNE CAB, INC.;
 KRIPALU TRANS., INC.; NOMA CAB, INC.; OROW, INC.; RADHA SOAMI,
  INC.; REBECCA CAB, INC.; BARAN TRANS., INC.; CAMBRIDGE TAXI,
  INC.; J & J TRANSPORTATION, INC.; LE BON BERGER, INC.; NICKY
 TRANS, INC.; SAMYR CAB, INC.; SOSTHENE, INC.; W.L.E.J., INC.;
  WILLKY-MEDGENE, INC.; DAPHNE TAXI, INC.; ET CAB, INC.; FERN,
 INC.; FOUR J'S CAB, INC.; GRAND CANYON, INC.; HARE RAM TRANS.,
INC.; INMAN CAB, INC.; MITACHAL CAB, INC.; NEL & SON, INC.; P.B.
 CAB, INC.; RIPERT CAB, INC.; SOUTH SUDAN CORP.; THE 32 SUMMER
 ST. CORP.; YAMUNA, INC.; ZUBIR, INC.; EMILY & KELLY CAB, INC.;
GABRIELLE CAB, INC.; KETTERLE CAB, INC.; LOREN CAB, INC.; TWINS
 BROTHERS TRANSPORTATION, INC.; VETTE TAXI, INC.; YILMA TRANS.,
  INC.; ALICE'S CAB, INC.; G & V & R CAB, INC.; GEORGE'S CAB,
INC.; M & F TRANS, INC.; METAXIA MOTOR, INC.; TUNG'S CAB, INC.;
 TUTUN CAB, INC.; CAF TAXI, INC.; EMILY'S TAXI, INC.; GCF TAXI,
 INC.; LEGENDS TRANS, INC.; MATTHEW'S TAXI, INC.; WARSAI, INC.;
HEMENWAY TAXI, INC.; IN-TOWN TAXI, INC.; LEANA'S CAB, INC.; MGF
TAXI, INC.; MILA CAB, INC.; OMF TAXI, INC.; OLIVIA'S TAXI, INC.;
REEL CAB, INC.; YURY TAXI, INC.; BRISTOL CAB, INC.; DORCAR CAB,
INC.; ERITREA TRANS, INC.; JESSICA T, INC.; MALVINA TAXI, INC.;
WOODSIDE TAXI, INC.; BRENDA TAXI, INC.; CYNTHIA CAB, INC.; FARES
 CAB, INC.; J&D TAXI, INC.; LUBA CAB, INC.; SHAHIN TAXI, INC.;
 CARLY CAB, INC.; DEPENDABLE DISPATCH, INC.; NU-CHECKER, INC.;
 CECILARD TRANSPORTATION, INC.; TARA TRANSPORTATION, INC.; AAA
    CAB, INC.; ABBAS CAB, INC.; E.D.R. CAB, INC.; CAMBRIDGE
TRANSPORTATION SERVICES, INC.; FILLETTE CAB, INC.; SYCOONE TAXI,
 INC.; TAXI MANAGEMENT, INC.; JEFF & NAYAMA, INC.; MYRA, INC.;
  SAINT, INC.; STEP BY STEP CAB, INC.; ANGE & MICHELLE, INC.;


                              -4-
   ANDREW J. CAB, INC.; ADDIS ABABA, INC.; ALGANES CAB, INC.;
 MALDEN TRANSPORTATION, INC.; PEGM TRANSPORTATION, LLC; MEDFORD
 TRANS., INC.; EVERETT CAR SERVICE, INC.; TALKD TRANSP., INC.;
 ARGON CAB, INC.; CEDAR CAB, INC.; COBALT CAB, INC.; EVERGREEN
  CAB, INC.; HARVEST CAB, INC.; MONUMENT LEASING, INC.; MYSTIC
  LEASING, INC.; PEARL CAB, INC.; SAM'S CAB, INC.; TRITON CAB,
INC.; UNION CAB, INC.; VEITA CAB, INC.; WEST END LEASING, INC.;
  GREEN CAB CO., INC.; FLEET LEASING, INC.; GREENWAY LEASING,
INC.; HARBOR LEASING, INC.; HARVEST CAB, INC.; GREEN AUTOMOTIVE,
   INC.; COUNTRY CLUB TRANS., INC.; LOCHMERE TAXI, INC.; MT.
  PLEASANT TAXI, INC.; CINEMA TAXI, INC.; GREEN & YELLOW TNC;
 ALEWIFE TRANS. CO., INC.; EASTERN TRANS., INC.; SILCOR TRANS.
CO., INC.; ORMOND TRANS. CO., INC.; SOMERVILLE TRANS. CO., INC.;
  BABS CAB, INC.; TAXI MAINTENANCE, INC.; MAYBERRY TAXI, INC.,

                           Plaintiffs,

                               v.

              UBER TECHNOLOGIES, INC.; RASIER, LLC,

                     Defendants, Appellees,

    TRAVIS KALANICK; GOVERNOR CHARLES BAKER; COMMONWEALTH OF
                  MASSACHUSETTS; GARRETT CAMP,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
                    Thompson, Circuit Judge,
                      and Katzmann, Judge.*


     Michelle H. Blauner, with whom Edward F. Haber, Ian J.
McLoughlin, Adam M. Stewart, Patrick J. Vallely, and Shapiro Haber

* Of the United States Court of International Trade, sitting by
designation.

                               -5-
& Urmy LLP were on brief, for appellants.
     Karen L. Dunn, with whom Adam S. Gershenson, Timothy W. Cook,
Elizabeth B. Prelogar, Paul, Weiss, Rifkind, Wharton & Garrison
LLP and Cooley LLP were on brief, for appellees.


                         August 6, 2021




                               -6-
            KATZMANN, Judge.      Once upon a time, indeed, not all that

long ago, the short route transportation market in Boston, as well

as in many other cities, was dominated by taxicabs, which typically

would be hailed on the street by riders.              In Boston, in a highly

regulated system, taxicab operators are required to possess a

license    known    as   a   "taxicab    medallion,"     maintain    a    properly

equipped and functioning taxicab, display a carriage license at

all times, belong to an approved dispatch service or                        "radio

association," and refrain from cell phone use while operating a

taxicab.    Beginning in 2013, in Boston and surrounding communities

as well as many other cities, this traditional taxicab business

model was upended and the short route transportation industry

radically transformed, with the entrance of transportation network

companies ("TNCs") such as Uber, Lyft, and Sidecar.                       The TNCs

provide a digital tool for requesting private vehicle-for-hire by

users who download a free mobile software application ("app").

Users who open the app on their mobile phones are shown a map of

their location or designated pick-up point and the available

affiliated vehicles in that vicinity.              These phone- and app-based

for-hire transportation services, relying on drivers who provide

pre-arranged       transportation       services    in   their      own    private

vehicles, quickly overtook taxicabs in popularity.                  The TNCs did

not operate in accord with the rules governing taxicabs, and they

did not incur the concomitant licensing and operating costs borne


                                        -7-
by taxi medallion holders and duly licensed fleet owners.                                 In

Boston in 2013, there were no citywide regulations specifically

addressing TNCs.            It would not be until August 5, 2016, that the

Massachusetts legislature authorized the operations of TNCs like

Uber    and   also     preempted       municipalities        from    regulating       TNCs

through local regulation.

              This case focuses on the period between June 4, 2013

(when   UberX    began        operating)    and     August    5,    2016,     a    time   of

regulatory uncertainty and uncertain legal status for Uber and

other TNCs.          It involves a dispute brought in United States

District Court in Boston by the plaintiffs, owners of the companies

who dispatch, lease and maintain taxicab vehicles and own the taxi

medallions (collectively "Anoush Cab"), against defendant Uber

Technologies, Inc. (collectively, with its wholly-owned subsidiary

Rasier LLC, "Uber"), a corporation that, as noted, has run a

competing car service connecting drivers and travelers through its

mobile phone application.              Anoush Cab alleged that Uber competed

unlawfully      in    the     on-demand,     ride-hail       ground     transportation

market in and around Boston.               Claiming damages of more than $122

million,      Anoush        Cab   alleged      that   in     violation        of    Boston

regulations,         Uber    caused    asset      devaluation      by   (1)       competing

unfairly under Massachusetts General Law Chapter 93A ("Chapter

93A"); (2) violating the common law for unfair competition; and

(3)    aiding    and        abetting   a    conspiracy       to    engage     in    unfair


                                            -8-
competition.      After a bench trial, the district court issued final

judgment against the plaintiffs on all their claims.           Some now

appeal. In considering that appeal, our charge is not to determine

or opine on whether the introduction of TNCs like Uber was a good

thing for the broader transportation industry or for the public at

large.     We are not called upon to determine whether Uber was

virtuous in its conduct.       Our responsibility is more narrow -- to

determine whether Uber competed unfairly in violation of statutory

and common law prohibitions governing the commercial marketplace.

We conclude that the district court's judgment should be sustained.

                              I.        BACKGROUND

                                   A.     Facts

            We recite the facts as found by the district court, after

considering the evidence presented at the bench trial,                in a

thorough Memorandum of Decision ("Decision"), Malden Transp., Inc.

v. Uber Techs., Inc., 404 F. Supp. 3d 404 (D. Mass. 2019) ("Malden

III").

            The    Anoush   plaintiffs-appellants    ("plaintiffs")    are

thirty-four corporations in the business of leasing City of Boston

taxicabs (and medallions that authorize their use) to independent

drivers.    All thirty-four corporations are owned and operated by

the Tutunjian family which collectively controls 362 medallions.

The plaintiffs' taxicabs are branded under the name "Boston Cab."




                                        -9-
           Defendant-appellee Uber is a Delaware corporation with

its principal offices in San Francisco, California.                 It is a

technology company that, inter alia, uses an app to match up

potential riders with drivers seeking customers for prearranged

transportation.      Uber began providing transportation services in

Massachusetts in 2011, well before the launch of its disputed

ridesharing or peer-to-peer ("P2P") service, UberX P2P.                  As has

been noted, defendant-appellee Rasier is a wholly owned subsidiary

of Uber.   References to "Uber" operating as a TNC apply equally to

Rasier.

                       1.   Regulatory Framework

           Historically, the City of Boston has regulated taxis

under a set of municipal rules, ordinances and regulations ("Taxi

Rules") and the Boston Police Commissioner ("the Commissioner")

has the authority to regulate hackney carriages and stands.                 The

Commissioner   may    delegate    his   authority    to   the   Inspector    of

Carriages, who is the Commander of the Hackney Carriage Unit ("HCU"

or "Hackney Unit"). The Hackney Unit has approximately twelve

assigned police officers but typically only two of those officers

serve on the street during any one shift.

           In 2008, the Commissioner issued the Hackney Carriage

Rules and Flat Rate Handbook ("Rule 403"), which regulates hackney

carriage   fares,    medallions   and   hackney     licenses,    among    other

things.    Rule 403 defines a "hackney carriage" as "[a] vehicle


                                    -10-
used or designed to be used for the conveyance of persons for hire

from place to place within the city of Boston . . . . Also known

as a taxicab or taxi."

            Rule 403 sets forth leasing and shift rates and taximeter

rates.    It establishes various vehicle and driver requirements for

hackney    carriages,   including    that   each   vehicle   have   a   taxi

medallion, be driven by a licensed hackney carriage driver and

bear evidence of membership in a radio dispatch association.            Rule

403 also recognizes Boston's Vehicle for Hire Ordinance ("the

Boston Ordinance") which provides, in relevant part: "no person,

firm, or corporation driving or having charge of a taxicab or other

private vehicle shall offer the vehicle for hire for the purposes

of transporting, soliciting and/or picking up a passenger or

passengers unless said person is licensed as a hackney driver and

said vehicle is licensed as a hackney carriage by the Police

Commissioner."    Boston, Mass. Mun. Code ch. 16 § 15.05(a) (2021).

            From 2007 to 2008, the Hackney Unit issued tickets to

unlicensed vehicles engaged in street hails (in violation of the

Boston Ordinance), but not to vehicles conducting prearranged

rides, regardless of whether the vehicles had livery plates.

Indeed, the Commander of the Hackney Unit informed the Boston

Police Commissioner and the Civilian Director of Hackney Licensing

of the Hackney Unit's policy of not enforcing Rule 403 with respect

to prearranged livery rides.        The Commander of the Hackney Unit,


                                    -11-
from January 2013 to May 2014, instructed his officers not to

ticket ridesharing vehicles unless they were involved in street

hails.

                        2.    Nelson\Nygaard Report

           In 2013, the Boston Globe ran a series of articles on

the Boston taxi industry. Following that publication, Mayor Thomas

Menino ("Mayor Menino") commissioned the Nelson\Nygaard Boston

Taxi Consultant Report ("the Report").

           Although Uber declined to participate in the preparation

of the Report, the Commander of the Hackney Unit asked the drafters

of the Report to address how the Hackney Unit should regulate

ridesharing services such as those provided by TNCs.            The Report,

which was published in October             2013 (four months after       Uber

launched UberX P2P), concludes that TNCs and livery vehicles are

not   regulated   and    do   not   have    a   regulatory   body   providing

oversight.    It further recommended that the Mayor establish an

independent Taxi Advisory Committee ("TAC").

           Senior management at Uber read the Report when it was

issued in October 2013 and concluded that it affirmed Uber's

understanding that the Taxi Rules did not apply to ridesharing.

             3.   Ridesharing Competitors and UberX P2P

           In March 2013, Sidecar, a competitor to Uber, began the

first P2P ridesharing program in Boston.            Uber's General Manager

in Boston reported to the company's Head of Global Public Policy


                                     -12-
that the Civilian Director of the Hackney Unit had purportedly

stated that there was "almost no chance" that the Taxi Rules would

be enforced against Sidecar.             That led senior Uber executives in

Boston to believe that the Taxi Rules would not likely be enforced

against Uber.

             In     April    2013,    Uber   publicly     issued   its    national

corporate     policy        ("the    White   Paper")    with    respect   to   P2P

ridesharing in cities where regulatory enforcement was ambiguous.

In   the    White    Paper,    Uber's    then-CEO      stated   that   "Uber   will

aggressively roll out ridesharing on its existing platform in any

market where the regulators have given tacit approval. . . .                     If

a competitor is operating for 30 days without direct enforcement

against transportation providers, then Uber will interpret that as

'tacit approval' of ridesharing activity."

             In May 2013, Lyft, another Uber competitor began its P2P

ridesharing service in Boston.               Following Lyft's entry into the

Boston market, Uber accelerated its plan to launch its own P2P

service, UberX P2P, which is the disputed conduct at issue in this

case.      At that time, Uber's Boston General Manager was familiar

with the Boston Ordinance and was specifically aware of the fact

that violations could result in $500 fines.

             On May 30, 2013, Uber's Head of Global Public Policy

emailed Mayor Menino's Chief of Staff a letter which stated that

Uber was "eager to participate in this innovative model" but only


                                         -13-
"as long as regulators allow this type of transportation."        He

requested that the City keep Uber informed of any "changes to

Boston's current policy of non-enforcement."    That same day Uber's

Head of Global Public Policy, having spoken with the Mayor's Chief

of Staff, reported back to his Uber colleagues that the Chief of

Staff said, "just launch."      The following day, Uber's Head of

Global policy asked the Chief of Staff to let Uber know if there

were to be "any impending change to the City's interpretation or

application of existing law in this area."

          The City's lack of enforcement of the Taxi Rules against

Uber competitors, public statements made after the launch, and the

testimony from hackney officers collectively corroborated Uber's

understanding of its communications with City officials prior to

the launch of UberX P2P.    Uber launched UberX P2P on June 4, 2013.

             4.      Requirements for UberX P2P Drivers

          For P2P, Uber did not require its drivers to have a

commercial hackney license, a commercial livery license or a

hackney medallion.    Drivers on the so-called "P2P platform" could

drive their personal vehicles with a personal driver's license and

a valid license plate.     Those drivers were, however, covered by

Uber's umbrella commercial insurance policy while transporting

riders.

          Uber's management knew that its UberX P2P ridesharing

model would save Uber drivers thousands of dollars in fees in


                                 -14-
comparison to taxicab drivers.          At the   time, the   plaintiffs

estimated that the annual cost of leasing a medallion in Boston

was approximately $26,000, weekly radio association fees ranged

from $20 to $88 and one-time retrofitting costs were around $3,600.

By avoiding such fees, Uber expected its drivers to earn thirty

percent more income than comparable taxicab drivers.

            Unlike taxis, which are subject to fixed taxi fare rates,

Uber set variable prices for how much a customer would be charged

per ride.     Uber engaged in "surge pricing," whereby Uber would

charge more when customer demand was higher than driver supply.

Unlike taxis, Uber was able to increase prices during periods of

high demand and decrease them during periods of low demand.

            In October 2013, Uber advertised to its customers that

UberX P2P in Boston was thirty percent cheaper than comparable

taxi rides.

              5.   Ticketing and Government Interactions

            In July 2013, Uber became aware that some of its drivers

were receiving citations from local law enforcement.         During the

conduct period, out of the millions of Uber trips, Uber drivers

received 497 tickets, of which 277 cited the Boston Ordinance.

Most of those tickets were issued between May 2014 and December

2014.   In 2015, forty-six tickets were issued under the Boston

Ordinance, but in 2016, only three tickets were issued.




                                 -15-
            In response to inquiries from drivers about citations

received, Uber employees never told the drivers that UberX P2P was

illegal.    Rather, ticketed drivers were told that the officers

were merely "misinformed" about Uber's commercial insurance policy

and that they would submit the citations to Uber's legal team.

Uber meticulously tracked its drivers' citations throughout the

conduct period.

            Uber    reimbursed    drivers     who   received     tickets     for

prearranged rides but did not reimburse any drivers who were cited

for street hails.      It did so in order to retain drivers and to

alleviate the cost and hassle of appealing the citations, although

some drivers were successful in appealing citations on their own.

            In 2014, the volume of citations reached its peak and

Uber internally expressed serious concern.              At the height of it,

the Boston Police Department and the Massachusetts State Police

were issuing tickets in the range of $500 to $20,000 per week.

            In April 2014, Uber's Boston General Manager met with

Massachusetts State Police officers overseeing Logan Airport who

stated they would not relent on ticketing until there was a

legislative change.        One month later, however, Mayor Marty Walsh

("Mayor Walsh") in response to a caller inquiry on a Boston radio

program    stated   that   the   police,    and   the   City,   did   not   have

jurisdiction over Uber.




                                    -16-
            Uber   management   subsequently    heard   from   one   of   its

lobbyists that Mayor Walsh's Chief of Staff was "dumbfounded" as

to why Uber drivers were being ticketed.         He later requested that

Uber provide him with information about the citations and Uber

complied.    Uber's General Manager had multiple conversations with

the Chief of Staff about the driver citations and believed that

the Chief of Staff was in the process of stopping the issuance of

citations.

                       6.    Taxi Advisory Committee

            In July 2014, Mayor Walsh established the Taxi Advisory

Committee    ("TAC")    to   gather   input   from   stakeholders    in   the

transportation business to improve the taxi industry and to explore

how the City of Boston might regulate other kinds of vehicles for

hire.   TNCs such as Uber and Lyft were invited to participate,

along with members of the taxi industry, Massachusetts State

Police, the Boston Police Department Hackney Unit and other City

of Boston officials. Uber's General Manager participated in the

TAC on behalf of Uber.

            Although no City of Boston official ever told Uber that

it was not allowed to operate in Boston, in November 2014, Uber's

then-General Manager told her Uber colleagues that the Chair of

the TAC and policy advisor to the Mayor made reference to the Taxi

Rules during a conversation about how ridesharing may violate them.

In December 2014, she testified at a Boston City Council hearing


                                      -17-
on ridesharing.      At that hearing, the Chair of the TAC reiterated

that   the   goal   of     the     TAC   was    to    seek    revisions       to   current

regulations and to explore new regulations applicable to TNCs.

Various Hackney Unit officials testified at the hearing that in

their view Uber was not operating in compliance with the existing

Taxi Rules.

                              7.     BTOA Litigation

             In January 2015, the Boston Taxi Owners Association

("BTOA") sued the City of Boston for its nonenforcement of Rule

403.   Bos. Taxi Owners Ass'n, Inc. v. City of Boston, 84 F. Supp.

3d 72 (D. Mass. 2015). In its opposition to BTOA's motion for

preliminary injunction, the City of Boston stated that it "has not

enforced Rule 403 against TNCs [and that] the public's interest is

served by a for-hire transportation market full of choices.                           That

market   includes         licensed       taxicabs      as    well     as   buses,      the

Massachusetts       Bay    Transportation            Authority       ("MBTA"),     jitney

carriages,    livery       vehicles,      and    TNCs,       among    other    types   of

transportation." City Defs.' Opp. To Mot. For Prelim. Inj., No.

15-cv-10100-NMG (D. Mass. Jan. 26, 2015), Dkt 20 at 4, 19 (emphasis

in original).

             The district court denied BTOA's motion for preliminary

injunction and Uber followed that litigation closely. BTOA, 84

F.Supp.3d at 82.




                                          -18-
                       8.        Data Sharing Agreement

             In   January    2015,    Uber    entered   into   a   data   sharing

agreement with the City of Boston.             The agreement was designed to

give the City access to information about rides for hire in Boston

for the purposes of traffic control and urban planning, recognizing

that, at that time, there were "tens of thousands of Uber rides on

the streets of Boston every[ ]day."

                            9.     State Regulations

             On January 2, 2015, the Massachusetts Department of

Transportation ("MassDOT") issued final regulations with respect

to TNCs, which took effect later that month.                   The regulations

amended 540 CMR § 2.05 to include a new category of vehicles,

Personal Transportation Network Vehicles ("PTN Vehicles"), which

are defined as "[a] private passenger motor vehicle that is used

by a Transportation Network Company."             The regulations also state

that the Massachusetts Department of Public Utilities ("DPU")

"shall act as the licensing authority to which a TNC shall apply

for a certificate to provide TNC services." 50 CMR § 2.05 (2015).

             On February 4, 2015, Massachusetts Governor Charlie

Baker ("Governor Baker") issued a press release directing the DPU

to   issue   a    public    notice   clarifying    the   status     of    TNCs   in

Massachusetts.      Press Release, Charlie Baker and Kathryn Polito,

Governor and Lieutenant Governor, Comm. of Mass., Baker-Polito

Admin. Issues Notice on Transp. Network Companies (TNCs) in Mass.


                                       -19-
(Feb.       4,      2014),        https://www.mass.gov/news/baker-polito-

administration-issues-notice-on-transportation-network-

companies-tncs-in. The press release stated that "[t]he issuance

permits TNC drivers to continue operating in the Commonwealth,

while allowing the administration to begin discussions about a

regulatory framework to ensure the enhanced safety of drivers and

riders . . . . But, because a TNC licensing framework must be

developed       through    legislation,   the    RMV    regulations     allow   TNC

drivers to use private vehicles for a six-month period, during

which     the     Baker    administration       will    develop     a   licensing

framework."        Id.

            Mayor Walsh was quoted in that same press release as

stating    that    he     would   collaborate    with    Governor   Baker   on   a

comprehensive regulatory framework for TNCs and would share the

City's TAC findings with respect to developing new city policies

for TNCs.       Uber representatives understood from the press release

that Mayor Walsh supported the Baker administration in the effort

to create a state-wide regulatory framework for TNCs.

            On July 31, 2016, the Massachusetts legislature passed

the Transportation Network Companies Act ("the TNC Act"), Mass.

Gen. Laws ch. 159A ½, which authorizes the operation of TNCs like

Uber and preempts municipalities from independently regulating

them.   The statute defines a TNC as an "entity that uses a digital

network to connect riders to drivers to pre-arrange and provide


                                       -20-
transportation."     Mass. Gen. Laws ch. 159A ½ § 1.        The TNC Act

gives   regulatory   jurisdiction   of   TNCs   to   the   DPU   and   the

Massachusetts Port Authority. See Mass. Gen. Laws ch. 159A ½ § 10

("[N]o municipality or other local or state entity, except the

Massachusetts Port Authority, may . . . subject a [TNC] to the

municipality's or other local or state entity's rates or other

requirements[.]").    Governor Baker signed the TNC Act into law on

August 5, 2016, but it was not to apply retroactively.                 The

plaintiffs acknowledge that after enactment of the TNC Act, Uber

cannot, as a matter of law, violate the Boston Taxi Rules.

                       B.   Procedural History

          The plaintiffs filed suit on January 26, 2017 in Anoush

Cab, Inc. v. Uber Techs., Inc., 17-cv-10142-NMG.1          They alleged

that Uber was liable for common law unfair competition, violations

of Chapter 93A, aiding and abetting, and civil conspiracy, by

virtue of its operation of an illegal P2P ridesharing service

("UberX P2P" or "Uber Ridesharing") from June 4, 2013 to August

4, 2016 ("At-Issue Period") without the licensing required under

Boston's vehicle-for-hire laws.

          On December 29, 2017, the district court denied the

defendants' motion to dismiss plaintiffs' claims. Malden Transp.,

Inc. v. Uber Techs., Inc., 286 F. Supp. 3d 264 (D. Mass. 2017)


1 The Anoush action subsequently was consolidated with Malden
Transp., Inc. v. Uber, 16-cv-12538-NMG.

                                -21-
("Malden I").

            On       March   5,   2018,   the    plaintiffs    filed     an   Amended

Complaint.           In its Answer, Uber asserted various affirmative

defenses, including that it was not liable because Uber's actions

were permitted practices under Mass. Gen. Laws ch. 93A, § 3

("Permitted Practices Defense") and that the actions of others,

and    events        unrelated    to   Uber,     constituted      intervening     and

superseding causes of the plaintiffs' harm ("Superseding Cause

Defense").       Affirmative Defenses Nos. 8, 11.

            The plaintiffs and Uber filed cross-motions for summary

judgment concerning Uber's liability.                The plaintiffs also moved

for summary judgment on Uber's Permitted Practices and Superseding

Cause Defenses.          On July 3, 2019, the district court granted

summary judgment to the plaintiffs on Uber's Permitted Practices

Defense,2 but otherwise denied the cross motions for summary

judgment.       Malden       Transp., Inc. v. Uber Techs., Inc., 386 F.

Supp. 3d 96 (D. Mass. 2019) ("Malden II").                   The district court

stated that at the jury-waived trial, it would consider "[w]hether

Uber   acted     egregiously       when   it     violated   the   Taxi    Rules   in

violation       of     Chapter    93A;"    "[w]hether       plaintiffs    suffered

economic damages;" "[w]hether Uber's alleged unfairness/egregious


2 Uber moved for reconsideration of the Order granting plaintiffs'
summary judgment on Uber's Permitted Practices Defense. The Court
denied reconsideration after trial. During trial, Uber withdrew
its Superseding Cause Defense.

                                          -22-
conduct caused plaintiffs' damages;" [and] "[w]hether Uber aided

and abetted unfair conduct and/or engaged in a civil conspiracy

to compete unfairly[.]"      Id. at 106.

             A bench trial was conducted between July 18 and August

2, 2019.      On September 6, 2019, the district court issued its

Memorandum of Decision ("Decision") determining that Uber was not

liable to the plaintiffs under Chapter 93A, the common law of

unfair competition, aiding and abetting and conspiracy.3               Malden

III, 404 F. Supp. 3d at 418-26 (COL ¶¶ 1-20, 42-45).              The district

court found that "Uber acted in accordance with the standard of

the   commercial     marketplace"    during    a    period   of   "regulatory

ambiguity."     Id. at 419, 422 (COL ¶¶ 6, 19).         The district court

also issued findings of fact that the plaintiffs' damages experts

were unreliable, id. at 416-17 (FOF ¶¶ 72-74), the plaintiffs'

lost profits analysis was unreliable, id. at 418 (FOF ¶¶ 75-76),

and   that   quite   apart   from   having    not   proven   liability,   the

plaintiffs "failed to prove damages with reasonable uncertainty,"

id. at 422-24 (COL ¶¶ 21-30).        The plaintiffs now appeal.

                             II.    DISCUSSION

             The plaintiffs contend that the district court erred as

a matter of law in holding that Uber's conduct was not unfair

within the meaning of Chapter 93A.           They argue that the district


3 The district court's Findings of Fact are cited herein as "FOF"
and Conclusions of Law are cited herein as "COL."

                                    -23-
court applied the wrong legal standards and relied upon legally

impermissible factors when it concluded that Uber did not violate

Chapter 93A and was not liable for unfair practices and methods of

competition thereunder.           They also claim that the district court

erred in rejecting their asserted common law unfair competition

claims, and conspiracy and aiding and abetting claims.                   Finally,

they contend that the district court erred in concluding that they

had failed to prove damages with reasonable certainty.                  We affirm.

                 A.       Jurisdiction and Standard of Review

             The district court had diversity jurisdiction pursuant

to   28    U.S.C.     §    1332   as   the     plaintiffs    are   Massachusetts

corporations, defendants Uber Technologies, Inc. and Rasier LLC

are foreign corporations doing business in Massachusetts, and the

amount in controversy exceeds $75,000.

             "As a federal court sitting in diversity, we look to

state     law,   as   articulated      by    the   Supreme   Judicial    Court   of

Massachusetts, for the substantive rules of decision."                  Dumont v.

Reily Foods Co., 934 F.3d 35, 40 (1st Cir. 2019) (citing Shaulis

v. Nordstrom, Inc., 865 F.3d 1, 6 (1st Cir. 2017)).                 Following a

bench trial on a Chapter 93A claim, we review the trial court's

"legal conclusions de novo and factual findings for clear error."

LimoLiner, Inc. v. Dattco, Inc., 919 F.3d 86, 90 (1st Cir. 2019);

see also Baker v. Goldman, Sachs & Co., 771 F.3d 37, 49 (1st Cir.

2014) (quoting Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 34 (1st


                                        -24-
Cir. 2007)).       A ruling that conduct violates Chapter 93A "is a

legal, not a factual, determination."              Incase Inc. v. Timex Corp.,

488 F.3d 46, 56 (1st Cir. 2007) (quoting R.W. Granger & Sons, Inc.

v. J & S Insulation, Inc., 745 N.E.2d 668, 675–76 (Mass. 2001));

Baker, 771 F.3d at 49 (quoting R.W. Granger, 745 N.E.2d at 675).

"Although whether a particular set of acts, in their factual

setting,   is     unfair   or    deceptive    is    a     question   of   fact,   the

boundaries of what may qualify for consideration as a 93A violation

is a question of law."            Incase Inc., 488 F.3d at 57. (quoting

Schwanbeck v. Fed.-Mogul Corp., 578 N.E.2d 789, 803–04 (Mass. App.

Ct. 1991), rev'd on other grounds, 592 N.E.2d 1289 (Mass. 1992));

see also Baker, 771 F.3d at 49.           "Under the clear error standard

of review, we accept the district court's findings of fact unless,

after careful consideration of the entire record, 'we are left

with the definite and firm conviction that a mistake has been

committed.'"       Baker, 771 F.3d at 49 (quoting Vinick v. United

States, 205 F.3d 1, 6 (1st Cir. 2000)).                 "If the district court's

factual    conclusions     are    based   on   an       erroneous    view    of   the

controlling law, however, 'the case for deference vanishes,' and

we review those conclusions de novo."               Id.

  B.   The District Court Did Not Err in Its Chapter 93A Ruling

            The     plaintiffs      contend        that     the   district    court

erroneously applied an outdated "rascality" test and inapplicable

"egregiousness standard," which they assert "has no place in


                                      -25-
Chapter 93A claims premised upon established unfair competition

standards."   We first review the legal landscape.      We then address

whether the district court applied the correct legal standard to

the evidence.    Finally, we assess whether the district court's

determination that Uber's conduct did not violate Chapter 93A was

reasonable.

                    1.    Elements of Chapter 93A

          Chapter   93A   "'is   a   statute   of   broad   impact'   that

prohibits 'unfair methods of competition' and 'unfair or deceptive

acts or practices in the conduct of any trade or commerce.'" Exxon

Mobil Corp. v. Attorney Gen., 94 N.E.3d 786, 791 (Mass. 2018)

(quoting Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 772 (Mass.

1975)); see also LimoLiner, Inc., 919 F.3d at 90.            Chapter 93A

states: "Unfair methods of competition and unfair or deceptive

acts or practices in the conduct of any trade or commerce are

hereby declared unlawful." Mass. Gen. Laws ch. 93A, § 2(a) (2019).

Unfair methods of competition and unfair or deceptive acts or

practices are not defined in Chapter 93A.              "[I]n construing

paragraph (a). . ., the courts will be guided by interpretations

given by the Federal Trade Commission [FTC] and the Federal Courts

to section 5(a)(1) of the Federal Trade Commission Act [FTC Act]




                                 -26-
(15 U.S.C. §    45(a)(1)), as from time to time amended."4        Mass.

Gen. Laws ch. 93A § 2(b) (2019).        Chapter 93A also states that

"[t]he   attorney     general   may   make    rules   and   regulations

interpreting the provisions of subsection 2(a) of this chapter."

Id. 2(c).   The statute provides a cause of action to "[a]ny person

who engages in the conduct of any trade or commerce and who suffers

any loss of money or property . . . as a result of the use or

employment by another person who engages in any trade or commerce

of an unfair method of competition or an unfair or deceptive act

or practice declared unlawful by section two . . . ."        Id. § 11.

A successful Chapter 93A § 11 claim thus has three elements: (1)

the defendant engaged in an unfair           method of competition or

committed an unfair deceptive act or practice; (2) a loss of money

or property    was   suffered; and (3) the defendant's       unfair or

deceptive method, act or practice caused the loss suffered.        Auto

Flat Car Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066, 1074–

75 (Mass. 2014).       The plaintiff must "establish both factual

causation and proximate causation."     LimoLiner, Inc., 919 F.3d at

90 (quoting Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st

Cir. 2016)).    If successful, a plaintiff is entitled to actual

damages, or double or treble damages if the defendant's violation




4 The FTC Act broadly prohibits "[u]nfair methods of competition
. . . and unfair or deceptive acts or practices." 15 U.S.C.
§ 45(a)(1)).

                                 -27-
of § 2 was willful or knowing.              Mass. Gen. Laws ch. 93A, § 11

(2019).

            The plaintiffs alleged in Count I of their amended

complaint that "[b]y unlawfully operating their transportation

services in Boston, and engaging in the acts and practices alleged

herein, Defendants have engaged in unfair methods of competition

in violation of M.G.L. c.93A, § 2."             Although the Supreme Judicial

Court has noted that in analyzing what constitutes unfair methods

of   competition        under    Chapter        93A,     the    court     looks   to

interpretations by the FTC and the federal courts of section

5(a)(1)     of   the     FTC     Act,     including       statutes       prohibiting

anticompetitive conduct, see Ciardi v. F. Hoffmann La Roche, Ltd.,

762 N.E.2d 303, 309-10 (Mass. 2002), in the district court the

plaintiffs did not litigate their case by reference to those

interpretations.        Rather, the litigation on the question whether

Uber's conduct was unfair relied upon the universe of cases arising

from cases proceeding under the unfair or deceptive practices prong

of Chapter 93A.

            Chapter     93A     creates    "broad      new     rights,   forbidding

conduct not previously unlawful under the common law of contract

and tort or under a prior statute."             Linkage Corp. v. Trs. of Bos.

Univ., 679 N.E.2d 191, 209 (Mass. 1997) (quoting Dodd v. Commercial

Union     Ins.   Co.,    365    N.E.2d    802,     806    (Mass.     1977)).      "A

determination that conduct is unfair or deceptive is not dependent


                                         -28-
on traditional tort or contract theories and represents a finding

under a statute that creates new substantive rights."                        Id.;

Drakopoulos v. U.S. Bank Nat'l Ass'n, 991 N.E.2d 1086, 1096 n.19

(Mass. 2013) ("Violation of a specific statute that does not itself

permit private recovery may give rise to a private claim under

c.93A   if    the   violation       amounts     to   an    unfair   method     of

competition.") (quoting Whitehall Co. Ltd. v. Merrimack Valley

Distrib. Co., 780 N.E.2d 479, 483 (Mass. App. Ct. 2002)).               To prove

that a covered party has engaged in an "unfair or deceptive act or

practice,"    it    is   "neither    necessary       nor   sufficient   that   a

particular act or practice violate common or statutory law." Mass.

Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47,

69 (1st Cir. 2009) (citing Kattar v. Demoulas, 739 N.E.2d 246, 257

(Mass. 2000)).      That is to say, the fact that conduct violates

statute or common law does not necessarily mean that it is "unfair

or deceptive" so as to trigger liability under Chapter 93A.                  Id.

On the other hand, conduct that does not violate statute or common

law is not necessarily exempt from liability under Chapter 93A.

Id.; see Renovator's Supply, Inc. v. Sovereign Bank, 892 N.E.2d

777, 787 (Mass. App. Ct. 2008).

             As noted, Chapter 93A does not define what constitutes

an "unfair or deceptive practice."            The Supreme Judicial Court has

observed that "[s]uch a definition would be impossible, because,

as the Appeals Court aptly noted, '[t]here is no limit to human


                                      -29-
inventiveness in this field.'"       Kattar, 739 N.E.2d at 257 (first

citing Levings v. Forbes & Wallace, Inc., 396 N.E.2d 149, 153

(Mass. App. Ct. 1979); and then quoting H.R. Rep. No. 63-1142

(1914) (Conf. Rep.)).     Although section 2(b) of Chapter 93A states

that courts are to be guided by the Federal Trade Commission and

federal court interpretations of the Federal Trade Commission Act,

unfair   or   deceptive    conduct   is    best    discerned    "from   the

circumstances of each case."      Id. (quoting Comm. v. DeCotis, 316

N.2.2d 748, 754 (Mass. 1974)).       Section 11 "does not contemplate

an overly precise standard of ethical or moral behavior" but rather

implies "the standard of the commercial marketplace."             Ahern v.

Scholz, 85    F.3d 774, 798 (1st Cir. 1996)          (quoting    Shepard's

Pharmacy, Inc. v. Stop & Shop Cos., 640 N.E.2d 112, 115 (Mass.

App. Ct. 1994)).    "The courts are not invited by the statute to

punish every departure from 'the punctilio of an honor the most

sensitive', but they may enforce standards of behavior measurably

higher than perfidy."      Doliner v. Brown, 489 N.E.2d 1036, 1040

(Mass. App. Ct. 1986) (Kaplan, J.) (quoting Meinhard v. Salmon,

164 N.E. 545, 546 (N.Y. 1928)).

          The   Massachusetts     courts    have    wrestled    with    the

description of unfair conduct, the first element of a Chapter 93A

claim, for decades. Because the genealogy of the governing Chapter

93A legal standard informs our analysis of plaintiffs' claim of

error, we trace it, as we did in Baker, 771 F.3d at 50–51.              The


                                  -30-
Chapter 93A unfairness test was first articulated in PMP Assocs.,

Inc. v. Globe Newspaper Co. in 1975 and became known as the "PMP"

test.   321 N.E.2d 915 (Mass. 1975).          There the Supreme Judicial

Court held that to establish an unfair trade practice under Chapter

93A, three factors must be present: the practice must (1) be

"within at least the penumbra of some common-law, statutory, or

other   established      concept    of   unfairness;"   (2)    be   "immoral,

unethical,    oppressive,      or   unscrupulous";    and     (3)   "cause[   ]

substantial     injury    to   consumers     (or   competitors      or   other

businessmen)."    Id. at 917.

            Four years later, in 1979, faced with the question

whether a     breach of contract could give rise to liability under

Chapter 93A § 11, Justice Kass of the Massachusetts Appeals Court

crafted the "rascality test" in Levings, 396 N.E.2d at 153, which

provided that: "[t]he objectionable conduct must attain a level of

rascality that would raise an eyebrow of someone inured to the

rough and tumble of the world of commerce."5                As his colleague

Justice Kaplan would comment, "[w]e tried to suggest a mood,

although we could not prescribe a rule[.]"           Doliner, 489 N.E.2d at

1040.   In 1992, the Appeals Court, again per Justice Kass, further




5 Justice Kass was a renowned wordsmith.      See Bryan Marquard,
Rudolph Kass, Judge Whose Writing Flair Illuminated Legal
Principles,   Dies  at   90,  Boston   Globe,    June  13,  2021,
https://www.bostonglobe.com/2021/06/13/metro/rudolph-kass-judge-
whose-writing-flair-illuminated-legal-principles-dies-90/.

                                     -31-
ruled that successful invocation of Chapter 93A in a breach of

contract case required that the conduct have "an extortionate

quality that gives it the rancid flavor of unfairness."                   Atkinson

v. Rosenthal, 598 N.E.2d 666, 670 (Mass. App. Ct. 1992).                  In 1995,

the   Supreme   Judicial     Court    of   Massachusetts        supplanted    both

phrases -- that is, "level of rascality" and "rancid flavor of

unfairness"     --    choosing   instead     to   "focus   on    the     nature   of

challenged conduct and on the purpose and effect of that conduct

as    the   crucial    factors   in   making      a   [Chapter    93A]    fairness

determination."       Mass. Emp'rs Ins. Exch. v. Propac-Mass, Inc., 648

N.E.2d 435, 438 (Mass. 1995) (citing PMP Assocs., Inc., 321 N.E.2d

at 917).     We noted Massachusetts' departure from this language in

Baker, a negligence and negligent misrepresentation case, where we

observed that after Propac-Mass the Supreme Judicial Court has

held that "mere negligence," is not sufficient for a violation of

Chapter 93A, instead requiring "something more" -- namely "extreme

or egregious" negligence.        771 F.3d at 51 (first citing Klairmont

v. Gainsboro Rest., Inc., 987 N.E.2d 1247, 1257 (Mass. 2013); and

then citing Marram v. Kobrick Offshore Fund, Ltd., 809 N.E.2d 1017,

1032 (Mass. 2004)).       Accordingly, "our Circuit has . . . followed

the Massachusetts courts' lead in using the term 'egregious' to

state the standard of Chapter 93A liability."                    Id. (collecting

cases); see also Bank of Am., N.A. v. Prestige Imports, 917 N.E.2d

207, 229 (Mass. App. Ct. 2009)("A 'breach of a legal obligation


                                      -32-
under commercial law, without more, does not amount to an unfair

or deceptive act under G.L. c. 93A.'")(quoting Framingham Auto

Sales, Inc. v. Workers' Credit Union, 671 N.E.2d 963, 965 (Mass.

App. Ct. 1996)).      Occasionally, the Massachusetts courts and the

First Circuit have noted "rascality" in reference to the Chapter

93A extreme or egregious standard.           See, e.g., Peabody Essex

Museum, Inc. v. U.S. Fire Ins. Co., 802 F.3d 39, 54 (1st Cir. 2015)

(first citing Baker, 771 F.3d at 49–51; then citing Zabin v.

Picciotto, 896 N.E.2d 937, 963 (Mass. App. Ct. 2008)). Those cases

do not diverge from the Chapter 93A principle that "something more"

and rising to the level of extreme or egregious conduct is required

for a successful Chapter 93A claim. See Baker, 771 F.3d at 51-52.

 2.     The District Court's Statement of The Chapter 93A Standard

             In the proceedings below, the plaintiffs contended, and

proposed as a Conclusion of Law for the district court, that

"Uber's violation of the Boston Rules falls within the penumbra of

a common law, statutory or other established concept of unfairness

that c. 93A's prohibition of unfair competition is designed to

remedy.      Malden [I], 286 F. Supp. 3d at 274."       Anoush Plaintiffs'

Proposed Conclusions of Law ("Proposed Conclusions of Law"), ¶ 316

(citation in original).      The plaintiffs also asked the district

court   to    determine   that   "Uber's   unlicensed    competition   was

immoral, unethical, oppressive, and/or unscrupulous, and gave Uber

an unfair competitive advantage over taxi owners; in other words,


                                   -33-
it   was   egregious.    Plaintiffs   presented   at    trial   multiple,

independent strands of evidence, each of which confirm Uber's

conduct was egregious, and when considered together, plaintiffs'

evidence of egregiousness is overwhelming."            Id. ¶ 321.     The

plaintiffs then asked the district court to conclude: "In fact,

both the First Circuit and the Supreme Judicial Court have held

that even 'negligent [conduct] may be so extreme or egregious as

to constitute a violation of Mass. Gen. Laws ch. 93A, § 11.         Marram

v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 61 (2004); Baker v.

Goldman Sachs & Co., 771 F.3d 37, 51 (1st Cir. 2014).'"         Id. ¶ 322.

In sum, the plaintiffs did not dispute the applicability of the

"egregiousness" standard to the unfair methods of competition

action before the district court, and indeed cited precedent

arising from cases involving unfair and deceptive practices.

            Before us, the plaintiffs are debuting a new theory,

arguing    that   the   district   court   applied     an   "inapplicable

'egregiousness' standard, which has no place in Chapter 93A claims

premised upon established unfair competition standards."              The

plaintiffs' new view runs afoul of two established principles.

First, "[a]n appellant cannot change horses in mid-stream, arguing

one theory below and a quite different theory on appeal."           Ahern

v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010).          Second, "[i]t is

hornbook law that theories not raised squarely in the district

court cannot be surfaced for the first time on appeal."          Ellis v.


                                   -34-
Fidelity Mgmt. Tr. Co., 883 F.3d 1, 8 and n.4 (1st Cir. 1991)

(quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.

1991)).   In short, the plaintiffs' new position is not properly

before us.6


6 Although the plaintiffs now assert that in analyzing what
constitutes unfair methods of competition under Chapter 93A, the
court should look to interpretations by the FTC and the federal
courts of section 5(a)(1) of the FTC Act, including statutes
prohibiting anticompetitive conduct, the plaintiffs did not do so
below. The only time they referenced the FTC Act in their Proposed
Conclusions of Law was when presenting federal judicial decisions
in support of the contention that good faith is not a defense to
a determination of liability under Chapter 93A.            Proposed
Conclusion of Law ¶ 337. Nowhere in those Proposed Conclusions of
Law did they advance the claim that under the FTC Act and judicial
decisions under the FTC Act, Uber's conduct constituted unfair
methods of competition.    For the reasons set forth above, they
cannot assert those theories and claims for the first time on
appeal. We thus do not reach them.
          Even so, while cases turn on their own facts, it can be
observed that other jurisdictions have rejected claims of anti-
competitive conduct lodged against Uber based on violations of
federal statutes. Concluding that the federal laws prohibiting
anticompetitive conduct are designed to protect competition, not
competitors, and will be deemed violated where there is harm to
the market, and thereby to the consumer, the Third Circuit rejected
claims that Uber's entrance into the Philadelphia market was anti-
competitive. Phila. Taxi Ass'n, Inc. v. Uber Techs., Inc., 886
F.3d 332, 340 (1st Cir. 2018) ("[I]nundating the Philadelphia
taxicab market with Uber vehicles, even if it served to eliminate
competitors was not anticompetitive.       Rather, this bolstered
competition by offering customers lower prices, more available
taxicabs, and high-tech alternatives to the customary method of
hailing taxicabs and paying for rides.")(emphasis in original);
see also Ill. Transp. Trade Ass'n. v. City of Chi., 839 F.3d 594,
597 (7th Cir. 2016) ("Taxi medallions authorize the owners to own
and operate taxis, not to exclude competing transportation
services."). The plaintiffs did not present market evidence at
trial, and apparently were of the view that they did not need to
establish harm to the consumer. Proposed Conclusion of Law ¶ 333
n.9. In any event, we do not reach or address the plaintiffs'
newly and untimely asserted theories and argument.

                               -35-
            However, we do address the plaintiffs' contention that

the district court erroneously applied an outdated "rascality"

standard to assess liability under Chapter 93A.         The plaintiffs

mischaracterize the district court's articulation of the standard.

The district court stated that "[s]pecifically, the challenged

misconduct must rise to the level of an extreme or egregious

business    wrong,   commercial   extortion,   or   similar   level   of

rascality that raises an eyebrow of someone inured to the rough

and tumble of the world of commerce."          What is clear from the

district court's articulation of the governing standard, set forth

in full in the footnote below,7 is that the touchstone of the


7   The district court stated:

            Rather, to establish unfairness under Chapter
            93A, § 11, plaintiffs must prove that the
            alleged unlawful conduct falls within at least
            the penumbra of some common-law, statutory, or
            other established concept of unfairness; is
            immoral,     unethical,     oppressive,     or
            unscrupulous; and causes substantial injury to
            consumers [or business entities]. Exxon Mobil
            Corp. v. Attorney Gen., 479 Mass. 312, 94
            N.E.3d 786, 792 (2018); see also Manning v.
            Zuckerman, 388 Mass. 8, 444 N.E.2d 1262, 1264
            (1983) (noting that "Section 11 provides a
            private cause of action to a person who is
            engaged in business and who suffers a loss as
            a result of an unfair or deceptive act or
            practice by another person also engaged in
            business") (internal quotations omitted).
            Specifically, the challenged misconduct must
            rise to the level of an extreme or egregious
            business wrong, commercial extortion, or
            similar level of rascality that raises an
            eyebrow of someone inured to the rough and

                                  -36-
district court's Chapter 93A analysis is extreme or egregious

business conduct.   Considered against the legal landscape, the

district judge's explication was not in error.

   3.   The Application of the Governing Legal Standard to the
                              Facts

         We now turn to the district court's application of the

Chapter 93A standard to the facts as it found them. Under the

prevailing standard, as we will explain, the district court's

findings of fact were not clearly erroneous. The district court

determined:

         Although the plaintiff corporations compete
         with Uber for riders in the for-hire vehicle
         industry, they have failed to prove that Uber,
         under the totality of the circumstances,
         committed an extreme or egregious wrong when
         they launched and continued to operate UberX


         tumble of the world of commerce.       Peabody
         Essex Museum, Inc. v. U.S. Fire Ins. Co., 802
         F.3d 39, 54 (1st Cir. 2015) (citing Levings v.
         Forbes & Wallace, Inc., 396 N.E.2d 149, 153
         (Mass. App. Ct. 1979) (Kass, J.)).

         In making that unfairness determination under
         § 11, courts consider the totality of the
         circumstances (Duclersaint v. Fed. Nat. Mortg.
         Ass'n, 427 Mass. 809, 696 N.E.2d 536, 540
         (1998)), which includes the "nature of
         challenged conduct and [ ] the purpose and
         effect of that conduct" (Peabody Essex Museum,
         Inc., 802 F.3d at 54), "the standard of the
         commercial marketplace" and "the equities
         between the parties, including what both
         parties knew or should have known." Ahern v.
         Scholz, 85 F.3d 774, 798 (1st Cir. 1996)
         (internal citations and quotations omitted).

Malden III, 404 F. Supp. 3d at 418–19 (COL ¶¶ 3–4).

                              -37-
         P2P in Boston, Massachusetts throughout the
         conduct period. COL ¶ 5.

         Because the City did not inform Uber that it
         was forbidden from operating its ridesharing
         services and Uber entered the ridesharing
         market only after becoming aware of the
         operation of other ridesharing companies (such
         as Sidecar and Lyft) in Boston without
         consistent observance of the Taxi Rules, the
         Court concludes that Uber acted in accordance
         with   the   standard    of   the   commercial
         marketplace. See Ahern, 85 F.3d at 798. COL ¶
         6.

Malden III, 404 F. Supp. 3d at 419.

         We conclude that the district court did not err in its

determination that Uber acted in accordance with the standard of

the commercial marketplace.    We are persuaded by the court's

marshalling of the facts in reaching its determination, both

regarding Uber's initial entrance and its continuing activities.8



8 The district court reasonably determined, Malden III, 404 F.
Supp. 3d at 413–14, 419–21, that Uber:
    Monitored the City's apparent interpretation and
    application of the Taxi Rules and the lack of enforcement
    against competitors that launched competing services
    before Uber, COL ¶ 6;
    Published and sent its White Paper -- outlining Uber's
    principled approach to entering markets with ridesharing
    competitors -- to City Hall, explaining that it viewed
    non-enforcement against competitors as a form of
    governmental approval prior to launch, COL ¶ 7;
    Shared with Mayor Menino's Office its plan to launch
    UberX and was told "just launch," id.;
    Read the 2013 Nelson/Nygaard Report that concluded TNCs
    were not regulated by the Taxi Rules, COL ¶ 10(a);
    Listened to Mayor Walsh's interview stating that the

                              -38-
The district court noted that "[b]y announcing its corporate policy

of tacit regulatory approval and specifically informing Mayor

Menino's office about that new policy (to which the Mayor's Office

responded, 'just launch'), Uber avoided acting 'unscrupulously' or

with the level of 'rascality' necessary to sustain a Chapter 93A

claim."   Id. at 419 (COL ¶ 7).   Furthermore, "Uber's attempt to




     City did not have jurisdiction over Uber and was working
     on new regulations, COL ¶ 10(b), (f);
     Participated in the City's Taxi Advisory Committee "to
     explore how the City    might regulate other kinds of
     vehicles for hire" like TNCs; FOF ¶ 50; COL ¶ 10(c);
     Communicated with Mayor Walsh's Chief of Staff, who was
     "genuinely disturbed" about ticketing of prearranged
     rides on the Uber platform, which was "contrary to the
     understanding of the Mayor," COL ¶ 13;
     Followed the Boston Taxi Owners Association case in which
     the City opposed the taxi industry's motion for
     preliminary injunction to compel the City to enforce
     Rule 403 and the Boston Ordinance against Uber, FOF ¶
     54; COL ¶ 10(d);
     Entered a data-sharing agreement that made the City
     aware that there were "tens of thousands of Uber rides
     on the streets of Boston every day," FOF ¶ 55;
     Read Governor Baker's February 2015 press release that
     new statewide regulations "permit[ted] TNC drivers to
     continue operating in the Commonwealth," FOF ¶ 58;
     Issued jointly with Governor Baker an April 2015 press
     release indicating that     the regulations "ensure[d]
     current [TNC] operations are not disrupted" during a
     "Phase-In Period" which "allow[ed] TNC drivers to
     operate with private registration and service," FOF ¶
     62; COL¶10(f); and
     Complied with DOT regulations permitting TNCs to operate
     during the Phase-In Period, including obtaining the
     required periodic notices from DPU stating that it was
     not yet issuing TNC certificates, COL ¶ 10(g).

                               -39-
clarify the regulatory applicability of the Taxi Rules with the

City     prior   to   the   launch    and     thereafter   was   sufficiently

transparent and consistent with the standard of the marketplace."

Id. (citing Cablevision of Bos., Inc. v. Pub. Improvement Comm'n

of City of Bos., 184 F.3d 88, 94, 106 (1st Cir. 1999)).              We agree

with the district court that the fact "[t]hat the City failed to

take a definitive regulatory position publicly does not render

Uber's response an 'extreme or egregious business wrong.'"               Id. at

419-20 (quoting Peabody Essex Museum, 802 F.3d at 54) (COL ¶ 8).

As the district court summarized: "Accordingly, Uber's entry into

the market was not 'unfair' or 'unscrupulous' when Uber 1) was not

the first 'unlawful' entrant, 2) thereafter competed in response

to   changing    marketplace    conditions      and   3)   sought   to   inform

regulators that it intended to enter the market." Id. at 420 (COL

¶ 9).

            With respect to the post-launch operations, we do not

discern error in the district court's conclusion, supported by a

variety of facts, that Uber "continued to operate in accordance

with statements and actions of government officials" and that "the

continued interaction and ongoing working relationship between

Uber management and City officials make it clear that the City was

aware of Uber's P2P operations but chose not to prohibit it."               Id.

(COL ¶¶ 10, 11).      While the plaintiffs continue to argue that the

Boston    Ordinance    citation      issued    by   individual   officers    to


                                      -40-
individual drivers was evidence of unfair practice by Uber, we

note the district court's finding that "[o]ut of some 29 million

Uber trips taken during the conduct period, 497 citations [less

than 0.001% of all Uber rides] issued to Uber drivers represented

a relatively insignificant violation of the Taxi Rules."                Id. at

421 (COL ¶ 12).      Moreover, Mayor Walsh had "publicly stated that

the City lacked jurisdiction over Uber" and that when Uber itself

reached out to the Mayor's Chief of Staff, he "was genuinely

disturbed about the officers' continued ticketing of prearranged

rides through the Uber platform, contrary to the understanding of

the Mayor."    Id. (COL ¶ 13).

           Even accepting that Uber's rides were in violation of

the Taxi Rules, we would note again that an unlawful action is not

a per se violation of Chapter 93A.             See Mechs. Nat'l Bank of

Worcester v. Killeen, 384 N.E.2d 1231, 1237 (Mass. 1979) ("[N]ot

every unlawful act is automatically an unfair . . . one under G.L.

c.   93A.").    A    violation    of   statutory    or   common   law   is    not

"sufficient" to constitute a 93A violation.                Mass. Eye & Ear

Infirmary, 552 F.3d at 69.         Here, the district court reasonably

concluded that in the context of the communications and dealings

with City officials, reflected by both affirmative and tacit

reinforcement   of    Uber's     operation,   the   conduct   could     not   be

categorized as the "egregious" unfairness that is required by § 11

of Chapter 93A:


                                       -41-
          Uber's decision to enter the transportation
          market and continue to operate was informed by
          a totality of positive statements received
          from the City both before and during the
          conduct period. It leveraged regulatory
          ambiguity, its growing popularity among
          consumers, its ability to charge less than
          taxis and its knowledge that regulators would
          be reluctant to thwart the growth of a popular
          consumer product which afforded independent
          drivers better hourly wages. That strategy,
          while aggressive and disruptive to the for-
          hire transportation market, is competition
          consistent with the "rough and tumble of the
          world of commerce."

Malden III, 404 F. Supp. 3d at 422 (COL ¶ 19) (quoting Peabody

Essex Museum, Inc., 802 F.3d at 54).

          The district court noted: "To be clear, the Court does

not conclude that Uber acted altruistically or in the best interest

of the transportation industry as whole."   Id. at 421 (COL ¶ 12).

We agree with that observation.    We also conclude that based on

the totality of the circumstances, the district court reasonably

determined that the plaintiffs did not prove that defendants acted

with the requisite, heightened standard of unfairness under § 11

of Chapter 93A and therefore the defendants are not liable to the

plaintiffs.   Id. at 422.9


9 Although the plaintiffs assert otherwise, the district court
never held "that because Uber had shown that it acted in good faith
it had no liability." Quite to the contrary, the district court,
citing Duclersaint, 696 N.E.2d at 540, stated that the question of
"'good faith' (or the lack thereof)" was not substantively
relevant, but rather was considered for the "purpose of determining
whether Uber's conduct can be found to be 'egregious' in light of
the surrounding circumstances." Malden III, 404 F. Supp. 3d at

                               -42-
C. The District Court Did Not Err in Rejecting the Common Law
                           Claims

                   1.      Common Law Unfair Competition

            The plaintiffs contend that the district court erred in

dismissing their common law unfair competition claim, alleged in

Count II, that "[b]y unlawfully operating their transportation

services    in   Boston,    without   complying   with   Massachusetts   and

Boston laws, Defendants unfairly competed with Plaintiffs."               We

disagree.

            The defendants note that the district court determined

that the plaintiffs did "not distinguish between the legal standard

for their common law and statutory [i.e. 93A] claims."          Malden II,

286 F. Supp. 3d at 273 n.2.           They point to various pleadings by

the plaintiffs which might very well have led the district court

to so find.      The defendants argue that having represented below

that that the claims were coextensive, the plaintiffs cannot now

claim on appeal that the district court erred by concluding that

because "plaintiffs have not proven their Chapter 93A claim, their

common law claim for unfair competition fails as well."             Malden

III, 404 F. Supp. 3d at 426 (COL ¶ 42); see P.R. Hosp. Supply,


421 (COL ¶ 14).      Similarly, the district court stated that
"evidence offered by Uber that it acted consistently with
government representations is not considered by the court as a
'state of mind' or 'reliance' defense to unfairness, as plaintiffs
assert." Id. at 422 (COL ¶ 18). We conclude that the district
court's determinations were properly drawn from the totality of
the circumstances.


                                      -43-
Inc. v. Bos. Sci. Corp., 426 F.3d 503, 505 (1st Cir. 2005) (quoting

Austin v. Unarco Indus., Inc., 705 F.2d 1, 15 (1st Cir. 1983))

("[A] party may not appeal from an error to which he contributed,

either by failing to object or by affirmatively presenting to the

court the wrong law.").       The plaintiffs, however, assert that it

was not their position that the Chapter 93A and unfair competition

claims were coextensive. Rather, they contend that they had argued

that Uber's unlicensed competition in violation of legislated

licensing   requirements      which    caused    the    plaintiffs'   injury,

without more, established Uber's liability for unfair competition.

They point to their Proposed Conclusion of Law, which stated: "'bad

faith,' egregiousness, or any other form of unfairness aside from

competing without a license against a licensed competitor, is not

an element of a claim for common law unfair competition." Proposed

Conclusion of Law ¶ 378.

            We   need   not    resolve       these     dueling   perceptions.

Addressing the merits, we are not persuaded by the plaintiffs'

argument that Uber is liable for unfair competition because it

violated    statutes    enacted   to     protect       the   plaintiffs   from

unauthorized competition.       The plaintiffs' reliance on Mass. Soc.

of Optometrists    v.   Waddick, 165 N.E.2d 394 (Mass. 1960), is

misplaced. There, in rejecting an unfair competition claim brought

by practicing optometrists regarding the unlicensed practice of




                                      -44-
opticians, the Supreme Judicial Court quoted Restatement (First)

of Torts § 710:

           One who engages in a business or profession in
           violation of a legislative enactment which
           prohibits persons from engaging therein,
           either absolutely or without a prescribed
           permission, is subject to liability to another
           who is engaged in the business or profession
           in conformity with the enactment, if, but only
           if, (a) one of the purposes of the enactment
           is to protect the other against unauthorized
           competition, and (b) the enactment does not
           negative such liability.

Id. at 395-96 (emphasis added).           In the case before us, the

relevant question is whether taxicab legislation, and Taxi Rule

403 invoked by the plaintiffs, are intended to protect against

unauthorized competition.      While protection from competition need

not be the only purpose, the plaintiffs have not shown that the

taxicab regulations allegedly violated by Uber were enacted to

protect against unauthorized competition.            Indeed, in a case

involving taxicab stands, the Supreme Judicial Court had occasion

to determine the purpose of the statutory limitation on Boston

hackney licenses.       See Town Taxi Inc. v. Police Comm'r of Bos.,

387 N.E.2d 129 (Mass. 1979).       Reviewing the legislative history,

including the Report of the Special Commission on Licensing of

Taxicab Stands in Boston from 1930, the Supreme Judicial Court

noted that the initial enacted statute deleted a limitation on

licenses   that   had   been   inserted   in   response   to   the   Special

Commission's recommendation that the number of licenses be limited


                                   -45-
to "prevent 'unreasonable and destructive competition.'"    Id. at

134-35 (citation omitted).     Three years later, the Legislature

authorized the Boston Police Commissioner to limit the number of

licenses on a different ground -- for "public convenience and

necessity."   Id. at 135.    In short, given the stated regulatory

purpose of "public convenience and necessity," and their inability

to point to a legislative grant to restrain competition, plaintiffs

cannot find support from § 710, referenced in Waddick, for their

common law claim.10   165 N.E.2d at 395-96.




10Moreover, we express some doubts here as to whether a common law
unfair   competition   claim  is   appropriate,   given  that   in
Massachusetts such a claim appears to be limited to consumer
confusion cases, which involve "palming off" or "passing off."
See Utica Mut. Ins. Co. v. Herbert H. Landy Ins. Agency, Inc., 820
F.3d 36, 44-45 (1st Cir. 2016) (quotation omitted). See also Open
Software Found., Inc. v. U.S. Fid. & Guar. Co., 307 F.3d 11, 17
(1st Cir. 2002) (noting that "the term 'unfair competition' in
Massachusetts law" has a "well-settled meaning" and that "[i]t is
settled in Massachusetts that 'the gravamen of an unfair
competition claim is the likelihood of consumer confusion as to
the source of the goods or services.'") (quoting Datacomm
Interface, Inc. v. Computerworld, Inc., 396 Mass. 760 (1986));
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141,
157-58 (1989) ("With some notable exceptions . . . the common-law
tort of unfair competition has been limited to protection against
copying of nonfunctional aspects of consumer products which have
acquired secondary meaning such that they operate as a designation
of source.").    Anoush Cab has introduced no evidence at the
district court nor here to show consumer confusion or palming off,
nor does the presented evidence of Uber's activities give rise to
any inference of palming off (i.e. that Uber passed UberX rides
off as medallion taxicab rides). This further convinces us that
Anoush Cab's common law unfair competition claim should fail.


                                -46-
                     2. Other Common Law Claims

           We conclude that the district court did not err in

entering judgment for Uber on the plaintiffs' aiding and abetting

(Count III) and conspiracy (Count IV) claims.            Malden III, 404 F.

Supp. 3d at 426 (COL ¶ 42).        Claims alleging aiding and abetting

or civil conspiracy require proof of an underlying tort.                See

Taylor v. Am. Chemistry Council, 576 F.3d 16, 34-35 (1st Cir.

2009).   The plaintiffs failed to prove an underlying tort; the

district court was thus correct in rejecting, as matter of law,

the   plaintiffs'   claim   that   Uber    aided   and    abetted   drivers'

violations of the Boston Ordinance and Taxi Rules.             Malden III,

404 F. Supp. 3d at 426 (COL ¶ 45).         Furthermore, Chapter 93A does

not contain a separate aiding and abetting cause of action, and we

find it unlikely one exists.       See In re TelexFree Sec. Litig., 360

F. Supp. 3d 46, 49 (D. Mass. 2019) ("Chapter 93A . . . does not

recognize a separate aiding and abetting cause of action.").            See

also Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S.

164, 175-77 (1994) (focusing on whether a statute explicitly

provides for aiding and abetting liability).         In any event, Anoush

Cab's Chapter 93A claim fails for the reasons already discussed.

Common law unfair competition, on the other hand, more obviously

qualifies as an underlying tort, but again we have already shown

that such a claim fails, and thus the aiding and abetting claim

must also fail.


                                    -47-
           With respect to coercive conspiracy,11 we note, as did

the district court that it is a rare cause of action.         Malden III,

404 F. Supp. 3d at 426 (COL ¶ 44) (citing Aetna Cas. Sur. Co. v.

P & B Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994)). The plaintiffs

must demonstrate that the defendants "had some peculiar power of

coercion over plaintiff that they would not have had if they had

been acting independently."     Id.     A case that Anoush Cab cites,

Sexual Minorities Uganda v. Lively, notes that under the "more

exceptional" coercive conspiracy theory, the power of coercion

must also be "peculiarly focused against" the plaintiff.          960 F.

Supp. 2d 304, 333 (D. Mass. 2013) (quoting Mass. Laborers' Health

& Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 245 (D.

Mass.   1999).   We   also   agree    with   the   district   court   that

"consistent with [the] conclusion that defendants did not act

'unfairly' under Chapter 93A," "flooding the market with Uber

drivers does not amount to the kind of 'coercion' anticipated by

this narrow cause of action."    Malden III, 404 F. Supp. 3d at 426

(COL ¶ 44).

                              D. Damages
           At the bench trial, the plaintiffs presented expert

witness testimony by Dr. Michael Williams and John Weeden in



11 The plaintiffs alleged only a common-plan conspiracy, and not
coercive conspiracy. Count IV, ¶ 119. As the district court also
addressed the latter claim, we do so as well.


                                 -48-
support of their claim that the introduction of Uber in violation

of unfair practices and competition resulted in economic injury

in the form of lost medallion values in the sum of $124,023.734,12

and lost profits in the sum of $10,777,855.                     The plaintiffs

acknowledge    that     they   were   required   to     prove    damages   with

"reasonable certainty."        See Astro-Med, Inc. v. Nihon Kohden Am.,

Inc., 591 F.3d 1, 19 (1st Cir. 2009) (quoting Nestle Food Co. v.

Miller, 836 F. Supp. 69, 78 (D.R.I. 1993)).            Although the district

court had concluded that "Uber is not liable to plaintiffs under

Chapter 93A, it proceed[ed], nevertheless, to making findings of

fact on . . . damages for the sake of completeness."               Malden III,

404 F. Supp. 3d at 415 (emphasis omitted).            The district court thus

issued findings of fact that the testimony put forth by the plaintiffs'

damages experts was unreliable.        Id. at 416-18.       Williams offered

two regression models purportedly designed to prove losses in

medallion values and leasing revenues.           The district court found

Williams' damages presentation "flawed" and "unreliable" because,

inter alia, Williams "generated inaccurate price predictions";

failed to account for "regulatory events" that can decrease

medallion     values;    and   gave   "inconsistent"      trial     testimony,


12The district court found that "[o]n June 4, 2013, the average
price for taxi medallions in Boston . . . was $637,500 per
medallion. The highest price paid for a medallion was $700,000 in
2014. On August 4, 2016, the going price of Boston taxi medallions
was approximately $250,000." Malden III, 404 F. Supp. 3d at 416
(FOF ¶ 70).

                                      -49-
including       a    "dramatic    reduction"       that   suddenly,    with    no

explanation, cut the claimed medallion value damages in half. Id.

at 416-17 (FOF ¶¶ 72-74).

               With respect to the lost profits analysis put forth by

Weeden, the district court found that it was also unreliable

because it relied on one of Williams' unreliable models, and

"unrealistically assumed that plaintiffs' medallions would be

leased 24 hours per day, 7 days per week, with 100% utilization in

12-hour shifts."        Id. at 418 (FOF ¶¶ 75-76).          The district court

concluded that even if plaintiffs "had proved liability (which

they have not) . . . . [b]ecause [their] calculation of damages

for reduced medallion value and lost profits are based upon

unreliable and flawed regression models, plaintiffs have failed

to prove damages with reasonable certainty."                Id. at 422-24 (COL

¶¶ 21-30).          The district court further found that plaintiffs'

damages      calculations     failed    to "disaggregate       the    regulatory

impacts," and thus "impermissibly" sought to recover damages tied

to    Uber's    constitutionally       protected    right    to   petition    the

government, in violation of the Noerr-Pennington doctrine.                    Id.

at 424 (COL ¶ 32).

               On appeal, the plaintiffs contend that the district

court's analysis of the testimony regarding damages was incorrect

and   that     based   on   the   undisputed   evidence,     we   should   enter

judgment in their favor in the amount of $122,350.49.                   Although


                                       -50-
we would conclude on review that the district court's analysis of

the   deficiencies    in    testimony   regarding   damages   should   be

sustained, we do not need to reach the question of damages because

the plaintiffs have not established liability by the defendants.

"It is settled law that when liability has been resolved against

a plaintiff, any claims of error relating exclusively to damages

are moot."    Campbell v. Ackerman, 903 F.3d 14, 19 (1st Cir. 2018)

(collecting cases).    We thus "need not reach the issue related to

the damages award."        A.M. Capen's Co., Inc. v. Am. Trading and

Prod. Corp., 202 F.3d 469, 471 n.3 (1st Cir. 2000).

                              III. CONCLUSION

             As we have noted, the introduction of TNCs has upended

the transportation industry.       The ensuing transformation of that

industry has been the subject of intense debate.13        There has been


13 See, e.g., Massachusetts Area Planning Council, The Growing
Carbon Footprint of Ride-hailing in Massachusetts (July 2019),
https://www.mapc.org/wp-content/uploads/2019/07/Growing-Carbon-
Footprint-of-Ride-hailing-in-MA.pdf;
Institute for Transportation and Development Policy, Ride Fair: A
Policy Framework for Managing Transportation Network Companies
(2019)                                   https://www.itdp.org/wp-
content/uploads/2019/03/2019.03.13.TNC-Policy.V9.pdf;
Craig A. Leisy, Transportation Network Companies and Taxis: The
Case of Seattle (2019); B. Schaller, The New Automobility:
Lyft, Uber and the Future of American Cities, Schaller
Consulting (July 25, 2018)
http://www.schallerconsult.com/rideservices/automobility.pdf;
S. Roy, A. Komanduri & K. Prossaloglou, Evolution of
Transportation Network Companies and Taxis through 2013-2018 in
Chicago, 2674 Transportation Research Record 7, 385-397 (2020)
https://journals.sagepub.com/doi/full/10.1177/0361198120922851.

                                   -51-
vigorous argument whether the new world created by TNCs has been

good for the transportation industry as a whole or for the larger

public; dispute regarding the impact of TNCs on road congestion

and   public    transit   usage;    questions    whether   TNCs      are    being

regulated appropriately in the best interests of public safety;

and debate whether the legislature acted sufficiently, or should

have acted, to protect the interests of taxicab owners who were

affected by the TNCs.           These are no doubt important issues of

public policy.        However, they are not before us or within our

province of decision.          Rather, as we observed at the outset, we

are faced with the narrow question of whether Uber's entrance and

conduct in the transportation market during a period of regulatory

uncertainty violated the statutory and common law governing the

commercial marketplace, as presented in the district court.                   For

the   reasons   set    forth    above,   we   conclude   that   it    did    not.

Accordingly, the judgment of the district court is affirmed.




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