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Travel law: Uber and Lyft battle grounds – St. Louis, Missouri

Travel law: Uber and Lyft battle grounds – St. Louis, Missouri

In this week’s article, we discuss the case of Wallen v. St. Louis Metropolitan Taxicab Commission, 2016 WL 5846825 (E.D. Mo. 2016), an antitrust action “alleging violations of the Sherman Act…by Defendants in (their) attempt to prohibit Uber and those using the uberX product from operating in the City and County of St. Louis, Missouri. Plaintiffs claim that riders, drivers and Uber, a Transportation Network Company (TNC) are prohibited by the actions of Defendants from competing in the St. Louis market for-hire transportation. Plaintiffs claim to bring this antitrust action to put an end to the anticompetitive conduct of Defendant MTC (Metropolitan Taxicab Commission of Metropolitan St. Louis) and several of its commissioners…many of whom are active market participants in the very market that the MTC regulates’. According to Plaintiffs, acting under the control of these market-participant members, the MTC, which is vested with the authority to regulate vehicles for hire, their drivers, and vehicle-for-hire companies in the City of St. Louis and St. Louis County, has abused its authority in order to stifle competition”.

Terror Targets Update

Paris, France

In Breeden & Rubin, Assailant Near Louvre Is Hot by French Soldier, nytimes.com (2/3/2017) it was noted that “A man with a large knife was shot by a French soldier on Friday after he lunged at four soldiers, shouting ‘God is great’ in Arabic near the Louvre Museum in Paris, the police said, immediately raising tensions in a country that has been the site of several terrorist attacks in the past two years. The Paris police chief, Michel Cadot, said that the man, who was seriously wounded, had been carrying two backpacks but that there was no indication they had contained explosives…The suspect was shot five times while in the stairway that connects the Carrousel du Louvre shopping center with the Tuileries Gardens above but did not reach the typically crowded mall itself”.

Turkey: Cheap And Dangerous

In Bad News, Conde Nast Traveler (2/2017) it was noted that “Yes, Turkey has been hit hard with terrorist attacks, a failed coup and U.S. State Department warnings. (The official line is that you should ‘carefully consider the risk’ of going at all). Web bookings for Istanbul flights are down 60 percent compared with last year’s, but the good news for intrepid travelers is that round-trip fares from N.Y.C. have dropped below $600 and rooms at the luxe Ciragan Palace Kempinski are just $250″.

Ottawa, Canada

In Austin & Smith, Quebec Mosque Shooting Kills at Least 6, and 2 Suspects Are Arrested, nytimes.com (1/29/2017) it was noted that “Gunmen opened fire in a mosque in the City of Quebec on Sunday night, killing six people and wounding eight others in what Prime Minister Justin Trudeau called a ‘terrorist attack on Muslims’…The attack shook Canada, a country where mass shootings are uncommon, and came as the country has become known as a beacon for refugees fleeing warfare and terrorism in Muslin-majority nations”.

In Austen & Smith, Killings at Quebec City Mosque Force Canadians to Confront a Strain of Intolerance, nytimes.com (1/30/2017) it was noted that “In a world hostile to migration, Canada has stood out, welcoming thousands of refugees fleeing war and seeking a haven…On Sunday, that was upended when a man walked into a mosque and started shooting, killing six people and wounding eight…the attack also forced Canadians to confront a growing intolerance and extremism that has taken root particularly among some people in this French speaking corner of the country…The shooting was the first time anyone had been killed in a mosque in Canada”.

Travel Ban Blocked

In Kulish, Dickerson & Savage, Court Temporarily Blocks Trump’s Travel Ban, and Airlines Are Told to Allow Passengers, nytimes.com (2/3/2017) it was noted that “A federal judge in Seattle on Friday temporarily blocked President Trump’s week-old immigration order from being enforced nationwide, reopening America’s door to visa holders from seven predominantly Muslim countries and dealing the administration a humbling defeat. The White House vowed late Friday to fight what it called an ‘outrageous’ ruling, saying it would seek an emergency halt to the judge’s order as soon as possible and restore the president’s ‘lawful and appropriate order’. ‘The president’s order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people’, the White House said…Airlines that has been stopping travelers from boarding planes to the United States were told by the government in a conference call Friday night to begin allowing them to fly…The Trump administration, however, could again block the travelers if it were to win an emergency stay”.

Italian Bus Crash

In Sixteen people killed, two dozen injured in Italian bus crash, etn.travel (1/21/2017) it was noted that “Sixteen people have been killed when a bus transporting Hungarian students crashed in northern Italy. The bus was traveling from France to Hungary on Saturday when it crashed…The bus was carrying the students home from a school ski trip to France. The vehicle burst into flames when it hit a highway barrier”.

Finland: Aurora Bubble Sled, Anyone?

In Would You Ever Sleep In An ‘Aurora Bubble Sled?,’ Conde Nast Traveler (2/2017) it was noted that “The new clear-domed, snowmobile-pulled cabin on skis lets you stargaze in tasty comfort in the Arctic wilderness outside Kilpisjarvi, Finland, near the border with Norway and Sweden. The company Off the Map Travel can set you up with an overnight stay (from $642 for two)”.

Taxis In Tokyo

In Edwards, The Best Car Service In Japan, Conde Nast Traveler (2/2017) it was noted that “‘Taxis in Tokyo are notoriously expensive: I’ve heard of people spending $550 on the fare from Narita to downtown. It’s crazy! But the Nihon Kotsu car service has English-speaking drivers who make that run for $219. Book ahead at nihon-kotsu.co.jp”.

Uber Drivers Camp Out

In Newcomer & Zaleski, when their shifts end, Uber drivers set up camp in parking lots, msn.com (1/24/2017) it was noted that “The vast majority of Uber’s full-time drivers return home to their beds at the end of a day’s work. But all over the country, there are many who don’t. These drivers live near, but not in expensive cities where they can tap higher fares, ferrying wealthier, white-collar workers to their jobs and out to dinner-but where they can’t make enough money to get by, even with longer hours. To maximize their time, drivers find supermarket parking lots, airports and hotels where they catch several hours of sleep after taking riders home from bars and before starting the morning commute. In a sense, drivers sleeping in their cars typifies, in an extreme way, what Uber said it does best: offer drivers flexibility…Uber drivers across the country swap tips for finding sleeping spots, like: which stores have the most forgiving security guards and where to find free Wi-Fi”.

Uber Pays $20 Million Fine

In Weise, Uber deceived drivers on pay, FTC says, USA Today, p. 4b (1/21/2017) it was noted that “Uber has agreed to pay $20 million for exaggerating how much its drivers could earn and encouraging them to lease cars through a ‘low-cost’ program the government says was anything but…Uber didn’t admit to wrongdoing but did agree to settle with the FTC. Affected drivers will be issued refunds…The complaint…said Uber claimed drivers could ‘earn specific high hourly and yearly earnings’ but in many instances, they did not. In one post on its website, Uber said the median income of uberX Drivers was ‘more than $90,000/year/driver in New York and more than $74,000/year/driver in San Francisco’. According to the FTC, the median income on an uberX driver in New York City was actually $61,000 and in San Francisco, $53,000. The Company also overstated the hourly earnings of its drivers in job listings, the FTC alleged, claiming drivers in Boston could earn $25 per hour, in Minneapolis $18 and in Philadelphia $25. The FTC said Uber’s own data on hourly earnings actually showed that in Boston, Minneapolis and Philadelphia in December 2014, fewer than 10% of drivers averaged the promised hourly rate…Uber’s advertising told drivers they could ‘own a car for as little as $20/day’ or lease one with ‘payments as low as $17 per day’. However, according to the FTC complaint, Uber actually had no idea whether this was true and never collected, received or monitored any data about the program’s terms”.

Beware Fake Wi-Fi In UAE

In Beware of fake Wi-Fi networks at UAE hotels and malls, etn.travel (1/27/2017) it was noted that “Smart mobile phone users must be careful while connecting to ‘free’ Wi-Fi networks at hotels and malls, as hackers can access the devices by making fake Wi-Fi points, UAE Telecommunications Regulatory Authority (TRA) warned on Thursday…’The hackers make the fake Wi-Fi using hotels’ names, for example, by adding a number to the original name and when the user logs in to the network, they can get access and steal the data and control the device”.

Robo-Call Class Action Settled

In Weisbaum, How You Could Get $500 Per Call for Those Unwanted Messages Six Years Ago, nbcnews.com (1/17/2017) it was noted that “Did you get a telemarketing robocall five or six years ago, offering a ‘free cruise in return for taking short survey? If you did, and you can prove it, you can get about $500 for each of those illegal calls. Florida based Caribbean Cruise Line and its two co-defendants-Vacation Ownership Marketing Tours and The Berkeley Group-have agreed to pay between $56 and $76 million to settle a class action lawsuit that claimed they made millions of unwanted and illegal robocalls…in violation of the Telephone Consumer Protection Act…More than a million people may be eligible (but) you have to file a claim (by) February 1 (by online at Free CruiseCallClassAction.net)”.

Beyond China’s Ivory Ban

In Beyond the China Ivory Ban, etn.travel; (1/19/2017) it was noted that “The recent announcement by the central government of China to ban all domestic ivory trade and processing by the end of 2017 offers a glimmer of real optimism in the fight against elephant poaching. The decision is set to disrupt the (globe’s) major marketplace for the product, as it will compel legal ivory processing industries to close down-thereby eliminating the cover under which the illicit ivory trade had flourished. Similarly, the ban will put in place strict mechanisms of ivory collection and disallow the display of ivory products in physical and virtual markets. With only about 415,000 elephants remaining in Africa, the step is crucial in ensuring the long-term survival of one of the continent’s most iconic species…China is, after all, the world’s largest ivory bazaar, with approximately 70% of the product ending up in the country. By setting a specific end date for its ivory trade, Beijing has sent a strong signal that ivory’s rightful place is on an elephant and not as a decorative item in someone’s home”.

Goodbye Yellow Cab, Hello Via

In Hu, Yellow Cab, Long a Fixture of City Life, is for many a Thing of the Past, nytimes.com (1/15/2017) it was noted that “(Mr. X) no longer sticks his hand out a for a yellow cab. He has plenty of other options at his fingertips. With a couple of taps on his phone, he lines up rides with Via, a car-pooling service that shuttles him around Manhattan with strangers for a flat rate of $5. When he wants to ride alone, he taps again, this time summoning a car through Uber…The yellow cab may be as synonymous with New York as pizza, Broadway and the Empire State Building, but more and more it is no longer the ride of choice. This fixture of city life-a touchstone of popular culture in movies like ‘Taxi Driver’ and the hit television series ‘Taxi’-was once the main alternative to subways and buses, hailed by rich and poor. Cabdrivers were the ambassadors of the streets…But yellow cabs-which now number just 13,587-have lost significant ground to a growing fleet of black cars summoned by ride-hailing apps with short, catchy names and loyal followings: Uber, Lyft, Via, Juno, Gett. The average number of daily taxi trips fell by more than 100,000 in November 2016 from the same month six years ago, as these apps have taken off. Today, more than 60,000 black cars are for hire in the city. More than 46,000 are connected with Uber, though they may also work for other services too. And the competition is fierce…’It won’t be long before this is an Uber town instead of a yellow-cab town’”.

Travel Law Article: The Wallen Case

As noted by the Court “Defendant MTC and the individual commissioners move to dismiss based on immunity from suit. The Taxi Defendants move to dismiss based on a failure to state a claim under the theory of respondeat superior, and immunity”.

Immunity-MTC

“The antitrust laws do not…bar sovereign states from imposing market restraints ‘as an act of government’…substate governmental entities receive immunity from antitrust scrutiny only when they act ‘pursuant to state policy to displace competition with regulations or monopoly public service’…This rule is designed to preserve to the States ‘their freedom…to use their municipalities to administer state regulatory policies free of the inhibitions of the federal antitrust laws without at the same time permitting purely parochial interests to disrupt the Nation’s free-market goals’”

U.S. Supreme Court Guidance

The Court noted that “The Supreme Court addressed antitrust immunity for substate governmental entities in FTC v. Phoebe Putney Health Sys., Inc., 133 S. Ct. 1003 (2013) (stating that) ‘immunity will only attach to the activities of local governmental entities if they are undertaken pursuant to a ‘clearly articulated and affirmatively expressed’ state policy to displace competition’. “The question is not whether the challenged conduct is efficient, well-functioning, or wise… Rather it is ’whether anticompetitive conduct engaged in by [nonsovereign actors] should be deemed state action and thus shielded from the antitrust laws’ [Patrick v. Burger,486 U.S. 94, 100 (1988). To answer this question, the Court applies the two-part test forth in California Retail Liquor Dealers Assn v. Midcal Aluminum, Inc., 445 U.S. 97…Midcal’s clear articulation requirement is satisfied ‘where the displacement of competition [is] the inherent, logical or ordinary result of the exercise of authority delegated by the state legislature. In that scenario, the State may have foreseen and implicitly endorsed the anticompetitive effects as consistent with its policy goals’”.

The Court’s MTC Immunity Analysis

“Although the MTC argues that (its) powers and authority give rise to a clear articulation of a policy to allow anticompetitive conduct, a close analysis of the MTC’s authority establishes just the opposite. The establishment of the MTC demonstrates that the contemplation was that its purpose was to regulate and oversee vehicles for hire to ensure public safety standards and maintain the integrity of the public transportation system. Rather than being exclusionary, i.e., allowing a policy of anticompetition, the statutory framework provides a means for ensuring the vehicle for hire industry is properly licensed, that the rules and fee structures are regulated and the individual drivers properly screened. None of the statutory authority gives any indication that the legislature intended to adopt a policy of anticompetition through the creation of the MTC…The displacement of competition is not the logical result of the statutory framework, rather, the logical result is providing a public transportation system that is safe and efficient. As such, the state has not clearly articulated a policy of allowing anticompetitive conduct…the Motion to Dismiss based on this immunity must be denied”

The Taxi Defendants

The Taxi Defendants “seek dismissal arguing that the Complaint fails to allege any actions taken by these defendants that would give rise to participation in a conspiracy to force Plaintiffs out of the taxi cab market in violation of the Sherman Act…Defendants correctly argue that this theory, i.e., that the business entities are responsible for the actions of their owners and managers, is not alleged in the Complaint. Plaintiffs are attempting to impute liability of the individual commissioners to the companies which they own and/or manage. The Complaint, however, does not set forth any allegations that the individual commissioners were acting on behalf of their companies when they took the alleged improper actions…There are no allegations that the individuals on the Commission were acting within the course and scope of their employment such that the companies would be vicariously liable for the actions…The Complaint fails to state a cause of action against the Taxi Defendants”.

Thomas A. Dickerson is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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