over some but not all waters so i wouldn't satisfy the rational basis test to distinguish in regulation of a column with taxes just for convenience and taxis that you can have that a person can hail on the street from taxis where you have to call and ask them to come get you why isn't that a raffle basis well two reasons it's arbitrary and irrational because number one especially in two thousand thirteen when the regulation or when the jurisdiction was exercised there was no requirement i don't understand why it's irrational the thing about a taxi you can call is before you're in the kid with the door closed you can  agree upon a price and when you hail a taxi you don't know anything until you're there but in two thousand and thirteen that wasn't the circumstance ember one o'brien left and side car at the time were actually tak us as a matter of course what not maybe not as a matter of business policy but they actually were and there was no prohibition against them doing so because they were unregulated well although they were regulated they're regulated by the state agency instead of the municipality but they they were regulated and they were regulated is a charter party so whether they violated the terms of their regulation as either a conventional taxi driver or an on call pickup service might they might violate the terms but they were regulated but that's precisely our point is that they were not regulated until the p u c exercised jurisdiction on september twenty third two thousand and thirteen the m t a in san francisco had attempted i don't understand that it looked to me out i can't see newburgh because he doesn't have the the light on top as a matter of fact your honor you can they are required to have signage just like taxis are they now many of the now have advertisements out of you seen them driving around san francisco they don't have advertisements just like price entering the destination that was even available in the oberoi the left ops back then so these facts that might differentiate this these services today that for the specific period in time that we're looking at which is september of two thousand and thirteen did not exist there w  street to an avenue going in your direction and hail a cab or you could call what they called then a limo company and it was just like except you call them on the phone except touching your screen of your  but you had to provide a destination and when you called those names in companies in the eighty's you had to provide them this destination that's part of the it's specifically in california at least that's part of being a charter part of carry you have to have the entrance that the pick up point and the destination two thousand and thirteen over didn't even have the functionality to put the destination into the application so that is in that goes back to a point of there was no appreciable difference between the services offered by the two at the time the p u c exercisers let's talk about that because the situation today as i understand it is that the california legislature has an acted new statute which appear to me to confirm the commission's decision to regulate these companies t difference does it make what happened in two thousand and thirteen were we to rule in your favor and somehow invalidate the two thousand and thirteen commission decision by virtue of the subsequent legislative an act meant our order would be of little of fact what it and because the commission will now continue to regulate these companies by virtue of their statutory authority assuming for the moment for argument's sake that it was ratified by the legislature the ratification of the legislation that earliest at the earliest could have ratified that excuse me was passed by the california legislature in september of two thousand and fourteen signed by the what do you what do you want us to order in two thousand and eight the even that's what i believe they have so by them improperly exercising jurisdiction for that fifteen month period of time they're essentially over left saying that it was none constituted it was a violation of equal protection it was an unconstitutional act by the p c ok maybe maybe and maybe you're right maybe it was but now there's a statute that that permits or directs or authorizes ratifies the commission's regulation of this part of the industry and our order because you're not challenging the constitution is a statute isn't going to address on a going forward basis what the commission is currently doing today so i guess maybe i'm really asking i'm not sure whether it's a standing concern that i have or a moot issue that we're dealing with ability i mean what is it that i'm going to redress in the order that you want us to to issue and that's what i was unfairly trying ok so it's water thank you cab drivers and companies against uber for unfair pricing in california under the unfair practices act which is below cost pricing it's kind of a corollary to antitrust but not quite as the state under business professions code seventeen zero two four there is an exclusion there for companies whose rates are set under the under the jurisdiction of the public utilities commission right we also by the way have which wasn't related we thought but we also have a case against  practices as well that were in federal court so the unfair practices act that as it was applied by the san francisco superior court said that because they're under the jurisdiction because under the jurisdiction of the p u c there any below cost pricing during the statutory period they are provided they are exempted from liability based on is a super fashion's code seventeen zero two zero four now that this opinion came out our order came out ten days ago thirty days a but it's a really clear example of the redress ability of the violation i didn't understand still let's say you win this case and we decide that the commission was just flat wrong in treating charter party in two thousand and thirteen it's hard at least for me to understand what changes on the ground i can still get in hoover on my i phone i can still hail a cab on the street in the state commission is still going to be regulating the municipality is still going to be regulating the taxi sale on the street i don't understand what there and you can't get any damages as far as i can tell i don't know maybe you can and you can explain it to me from birth because it acted as a charter party in two thousand and thirteen i don't understand what happens on the in the real world in the concrete world on account of you winning and fourteen if the district court follows the california the sapir of court's order regarding this exemption for over because their rates are set under the jurisdiction of the p u c that means that exercising jurisdiction in two thousand and thirteen was unconstitutional even if it were ratified well then that gets back to the question that we started with at the beginning which is is this subject a rational basis review and if the justification was charter party pre authorized right versus street hales if we decide that that is a rational basis to make that determination then the action in two thousand and thirteen which was the type of app for that he does now because they are the five lab so the allegations of the complaint there is no rational basis for differentiating between the two companies with nearly identical a summary judgment and you've got a bunch of i just don't understand what how that eliminates the rational basis for regulating charter parties and taxis in different places because what's happening then is the drivers cheating and they're supposed to act as a charter party carrier and they're not they're acting  carrier i don't see why the cheating though affects who is the appropriate regulator but in september two thousand and thirteen the law didn't exist so they weren't necessarily cheating when the prohibition against taken straight tells on target part of carriers oh yeah sure they were cheating i mean the municipality says if you take street hales you've got to get  has started exercising jurisdiction over i mean over called itself cab when it was formed it only stopped kind itself over cab because the m t a said hey if you're a taxi you have to go through the service procedure they were violating things left and right including taking street i don't i don't really see why the name matters i mean i remember in new york in the eighty's they called the tell of the limousine company and it was in a limousine it was just the you call him first and tell him to pick you up instead of st ala right there the name of knots and that's  determinative i'm saying that that is an example of the numerous ways that are was violating the local rules the m t a regulations regarding providing taxi service are you still asking us to in believe is what the total if is is still available under the constitution and i think that is what i could i mean could we enter an order in violation of the california constitution infile you know if we order if in essence we reverse the legislature has recognized that it exercised jurisdiction and didn't specifically say work hard to find that it did absolutely recognize it but even so we have this thirteen month fifteen month period excuse me between september of thirteen and january of two thousand in which the the legit the p u c acted outside of the constitution in violation the constitution and the court in the moments in the element i mean when we're younger and the case of the court brought to our attention they specifically state that if they if a thirteen for drivers to be doing this because they don't have medallions and they have not complied with all of the local requirements regulating the taxi industry how a court could award damages for a lawsuit well i'm just it's it seems to me a perverse result that we would award damages as against i didn't get any portion of that fair morning honors jonathan coulter the public utilities commission may it please the court i'd like to focus on the standing issue because i think that's probably dispositive here as i understand my colleague's redress ability argument as it currently stand s i think the theory goes that they have a lawsuit pending against uber i believe that's in the northern district before judge white and so they they they want to hold out the possibility of getting damages in that suit for that fifteen month period from september of two thousand and thirteen to january of two thousand and fifteen and with respect to my colleague that seems awfully speculative to me they haven't won that lawsuit i'm not sure where that suit is in the process i'm not sure that you can hang article three standing on the possibility of maybe getting damages against another party in another case  if everything goes your way why wouldn't it be good enough for declaratory judgment you get the declaratory judgment in case one in then based on that the liberation of what the law is you get damages in case two if they honor i think redress ability needs to be somewhat more certain than that but if the theory is unfair pricing competition because had the t n c been subject to the same pricing restrictions imposed on taxi cabs then the t and cs couldn't undercut the taxi rates the flag drop and so on that the taxi cab companies must adhere to at any time of the day or night without regard to s surge pricing and that sort of thing i mean it seems to me that that could be an ascertainable damages amount depending on how good the records are for that time period and  maybe we don't know what the records are for that time i mean this is frankly that this other case makes it hard it just means to need columnists at the tri yeah i mean yeah i just don't know i mean this is this is the first time in this case that their suit against uber has come up i happened to know about it because i've been following the case for but but it's not in the record it was never raised before the district court this argument as a first time that it's come up here well the declare the request for declaratory relief was based on a challenge to the commission's assumption when it took your stiction that these t n c s were more like charter parties because you had to sign up in advance and pre authorized or pre requests the ride but as i heard ms seabirds argument she said well that may be true for the majority of the drivers during that period of time but apparently  either wasn't enforcing or didn't have in its driver agreement any prohibition on picking up street hales and she alleges in this complaint that they actually were in fact doing that during that fifteen month period well then i think it's important to go back to the rational basis standard and of course rational basis the legislative classification isn't subject to courtroom fact finding it can be based on rational speculation on supported by having been if they're wrong that still a rational basis in question and thought about that under i think under nordlinger versus hon under the standard set forth there the facts apparently relied on by the legislature in this case to the agency sitting in a quasi legislative role we have to have been able to rationally believe the legislative facts to be true i'm not sure that means they have  to if we got the legislature gets things wrong i mean and the c p c gets things wrong would that we didn't but alas and if it were the case that  that we had to be perfectly correct one hundred percent of the time i'm not sure how much we would get done so i think i think even on the basis of this record and even on the basis of the pleadings it's my belief that flywheel has and overcome the presumption that the legislative facts we relied on could rationally have been believed to be true at the time there was nothing in our record in the c p u sees record these entities are more like charter party carriers and i don't know what the record said to that they were not ride him correct i'm having trouble more and more trouble actually seeing why it matters whether some were drivers took street tails i must be getting calls on his cell phone or uses the app to tap on it seems like it's got to be just some person that drives  that ride and maybe he's doing it all the time without a medallion which is you know civil law i don't see where it has anything to do with the regulatory agency what am i missing i'm getting confused don't think that means that the government has to now regulate u p s like mr softee it just means that that driver is breaking the rules and so the same thing here i don't think that fl did not say that if i will did not say that in the record or did they say that the record i believe they did your honor yes and that there was a policy of taking right hands correct  it's my belief your honor is that that's not a plausible allegation because of the way the way the business works over and left only get money if you use the app if you ride nuber and you get the car the driver and if he's going to get paid in just get off and leave when you get to your your place because they get paid through the app that's my understanding yes your honor so it's their problem if they do write him right so your honor if it's like working essentially well it may not be even get off get paid but if you take the street mail he's got to take cash right because he can't if he if he runs it through the credit card there's no way to do that because the guy wasn't the to get a cab there no cabs and some guy stops and his car and says where you go and you tell him hotel so and so and he says so many rubles and that's just between you and him is that we're talking  about i would have to believe so i'm not i'm not aware i can't conceive of any way that it would make sense as a business policy for gruber and left to encourage their drivers to take rides they want to make any money right that's right the well understand though the record is that fly wheel or desoto said that in two thousand and thirteen that hooper was operating as a taxi the record though that you had showed something different entirely c p u c relied on the fact that they were not a right heel company but were charter is that right that's right your honor so if we take that is true i mean so you got it wrong but that's the facts that you arbitrarily ride hales or are not yes i just want to address this question that seems to be really weighing on everybody about why would you ever do this that's not part of our business model than on the money and this is a bit of a crossover with the lawsuit that said it has against over there do it they didn't do it they were encouraging it that if the administrative agency in this case which has fact finding authority under its enabling charter makes a factual determination and reasonably believes that there is a distinction here between right heels and pre authorized rides and therefore decides to exercise its authority to regulate these companies how can we overturn that is not based on a rational basis good faith belief in the facts that the commission the term because it wasn't based on the number one it wasn't based on the fact finding ability of the p c the p u c interpreted the statute the pre arranged and again but i thought it was an original i don't know if you'd call it an ale j order i mean i'm not familiar enough with how the commission compiles its record but i thought i read in the record some sort of a ruling by one of the commissioners which kind of looked like an administrative law judge finding and then it goes up to the full commission which in reliance on that what i would call agency fact finding makes a decision for the commission that it will exercise its jurisdiction have i got the procedural history right yes so with regard to the actual fact funny part of that but with regard to the interpretation of the statute which is what we're talking about we're talking about the prearranged i mean the statute a prearranged says has to be done by telephone or contract written right to act it is very much you know the c p u see use those facts they found as a fact finder that that's what it was a charter company that they use an app and they prearranged and  destination in that and then what they found well these states controverted by you i understand but that's what they found what they did the actual order itself find that no they stated that they were that basically they said that because the they're finding some justification in this aspect was the fact it was interesting lee worded statement of basically because a because an application was downloaded and that was there for  thinking more about the plausibility of your contention that part of the strategy was for the drivers to take street hales even though they're not supposed to have and what i can't figure out is how that could be possible because how could  make any money and the drivers and it doesn't go through the app so doesn't get to charge the passengers credit card over don't even know about it the driver's working off the how could they make money by having it as their policy for drivers to take off the books after we're off the book sales where they don't make money in those individual instances in two thousand and twelve thirteen of course they're not going to make money on the individuals on those individual rides just like they don't make money on most of their rides because they price below cost which is all that's part of the monopolization antitrust law is you can't you can't price but one must we're not dealing with that now when i'm simply looks are you saying that in court's concern over this doesn't make sense with his business model so much no sense to me economists have been agreed for decades that underpricing to destroy competition and create a monopoly never works always had this happen very intense very good people are going to be trying to go from the marriott to someplace the secondary interests in that instance is the medallions a two hundred fifty thousand dollar medallions that are required by this by the city of san francisco either way you have high barriers to entry high financial most states they don't in most states correct i mean that's a very much kind of a hodgepodge of regulation how this is happening right now but again i mean that is part of the big can spam for transportation coming along so i'm  looking at the commission's order to zero eight through to fourteen which is pages sixty four through seventy of the commission's order i don't have and it is it does refer to the fact that they assigned a commissioner michael  drivers cannot be healed on the street similar to a texaco so if the commission made that finding and in good faith relied on that factual finding how can we simply accept your allegation challenging that finding as a basis to overturn the commission's two thousand and thirteen well and that's where the pretext comes and as far as what was alleged i complaint and why we think we should be able to amend it larry i don't think we can do the pretext i'm sorry i don't see how we can talk about a pretext well when they when a defendant when a defense when the defendant provides a stated reason for having engaged in action and you conclude that stated reason is false that it's it's just completely false it's not based on reality they're given i don't think we have also good for that  to increase public safety the p u c by taking the action they took decreased public safety because they were they essentially created a period where it left side karachi without any regulation when the m t a had tried to and again these companies started in san francisco and so san francisco m t a local agency had started to exercise jurisdiction over them as taxicabs they sent a cease and desist letter and by the p u c stepping in that is how they basically end it up providing them free rei