owners but the district court in this case found that hooper violated the clear terms of boston's vehicle for higher laws which prohibited private vehicles from picking up passengers for hire without proper licensing the judgment if the firm would create a dangerous precedent it would allow over to buy a late clip a clear statutory scheme without consequence based on statements of government officials who had no actual or parent authority to excuse the brits noncompliance with those laws in fact the court held that no government official with statutory authority gave her affirmative permission to operate there's extensive briefing in this case so in this argument i'd like to focus on three points of legal error first boston's vehicle for hire laws were intended to protect licensed taxi operators from unlicensed competition but violated those laws and gauged in unfair competition under competition and finally based upon the court's own factual findings about plaintiff's loss of medallion values and reductions in ridership and leasing revenues plane to spews prove damages with reasonable certainty massachusetts law so i'd now like to turn to my st point regarding the common law claim the district court's conclusion that the group was not liable for coming on unfair competition was based on its application of the wrong legal standard under massachusetts law nothing in the massachusetts common law or an unfair competition required plaintiffs to prove that acted agreed to sleep or permitted consideration of good faith as the unfair competition under water who are engaged in unfair competition because it violated a legislative act meant which prohibited it from gauging in the vehicle for higher business and one of the purposes of the vehicle for higher laws was to protect the license medallion owners from unlicensed competition and the massachusetts statutory scheme does not negate liability both elements were satisfied here license vehicles was to limit destructive competitions throughout this case there was a staff to try and counsel i'm a little unclear about that statement wasn't there  being the protection of competition that could have multiple purposes and so the fact that the statute also public safety and health purposes does not mean that it didn't also have purposes during the period of time it is she when this case was a licensed it was a staff to truly created and regulated monopoly is evidence that the supreme judicial court recognized that this industry was given exclusive rights and so the fact that there was a secondary or a concurrent purpose of public safety is irrelevant under the standard set forth in the restatement and set forth the water and there's a long line of s j c authority that has allowed license competitors to sue unlicensed competitors for unfair competition in the transportation industry the disturbed case that we state and a number of the other railroad cases that we cite  case we have established all the elements that are necessary for unfair competition and the district court ignored massachusetts law and wh it did here is it held that we have to prove a creed just mess and good faith was relevant to the common market and when in fact there is no legal support for that argument and who were just not claim to protecting against competition or or granting monopoly was not the purpose of the statute despite what the restatement may have said so can it be said that you're extending water to little beyond what it stands statutory limit on the number of license atomic trysts anyone in the state could get a license a time or two license as long as they met the standards in our case there were statutory limits on the number of license competitors and if you go back to the origination of this statutory license the senate report  preceded the imposition of the statutory caps expressly stated that the purpose of it was to excess eliminate destructive competition in the taxi industry so this case is very different than what it because one of them was never a statutory cat anyone who met the just like his lawyer or anyone who went to law school and took the parts them and you know could become a lawyer there's no limit in massachusetts as to how many warriors can practice in massachusetts anyone who meets the standards can do so same in what if anyone who met the standards in  the standards in the work cometary could get in a cometary license comes another question on your unfair common law unfair competition claim i thought i thought that there was a requirement in the common that there be concise consumer confusion or the likelihood of consumer confusion as to a nonfunctional aspect i don't see it i mean i know the district court said that comment the common line fair competition claim confusion is not an element of this type of unfair competition claims there are many different types of unfair competition can't some can be best at common law yes there are many types who look at the rich statement of unfair competition in a list of a half dozen different types of unfair competition claims that are available at common law some of them are based on palming off some could be based on trademark infringement patent infringement so there are a lot of different types of unfair competition claim at common law and the consumer confusion claims are only one type of it and i think i want to point out that if you look at the two cases that  e sites on this consumer confusion concept one is data com and the other is planned parenthood does of the chile s j c cases and what the courts in data come is that consumer confusion was a required element of the type of claim that was being brought in that case which was a palming off claim there is no broad language in that case the consumer confusion is required of every type of common law unfair competition claim same thing in planned parenthood or so it's a footnote in that case actually in the states set that says the palming office the essence of unfair competition but if you read that foot e to the end it also says that palming off is just the most common type of unfair competition plan so consumer confusion is relevant standard in certain types of unfair competition cla but not in the one that we're talking here what it doesn't suggest the consumer confusion would be part of the claim the restatement in seven hundred and ten dollars doesn't suggest the consumer confusion would be part of the claim the restatement of unfair competition the rd which is the current version of the restatement in section one does not say the consumer confusion is part of a common law claim which is based on a statutory violation of a license and scheme designed to protect certain competitors just so counsel in some when you compare the common law claim verse to ninety three a from the perspective of your client which is the easier claim to prove i think i would say that they are different in the following respect ok egregious requirement this absolutely no support for an egregiousness requirement under the common law but the claims are somewhat different because under the common law claim we have to show that the statute was designed to protect us from competition under the ninety three dollars a claim under the unfair meant that's a competition piece and the standards set forth by the f t c but but the f t c that's right agency what we have to show is that there is a violation of a statute and the violation of the statute gave birth advantages in cost and pricing that it was able to and in fact standard set forth by the f t c the reason that the violation of the statute in this case is an unfair method of competition is because the court found paragraphs thirty nine  dollars of its findings of fact that hoover exploited those violations to get economic cost and pricing advantages which were not available to twelve thousands and thousands of cars on the street and they were able to avoid costs of the licensing system that sees their drivers over twenty six thousand dollars a year so in that circumstance we're not saying the just the violation alone is the ninety three dollars violation but based on the standard that was st established by the supreme court in the capital case we've cited cases in other jurisdiction where courts upheld the same like if you have a competitor who doesn't abide by but i tip laws or and gets advantages over its competitors of those those are considered under the law to be unfair m competition i know we didn't in the time allotted which we've gone considerably over get to your rd argument but let me ask the court whether there are follow up questions at confusion but before i get into that i just want to make the point that if you look at the findings of fact in conclusions of law other than slight mention of her statement seven hundred and ten and the railroad cases thank you mr thank you so just to be clear about what appellant are arguing for when they're talking about the common law they are arguing that the tax rules grant medallion holders a right to sue for damages and exclude new market entrants that were never contemplated by the rule that they invoke and that all that happens in the tax rules without the tax rules ever saying so so restatement seven hundred and ten dollars and the wada case do not stand for this and in actually is resolve this issue for a few other attorneys today well i don't try that and hope for the best ok thank you very much so attorney john i'm actually going to remove you from the meeting and i'd like you to rejoin it immediately and we'll let you in from the lobby like you did earlier today ok your thank you sorry about that judge i hope but for fixes itself presently there recording as a all right if you can find your place you may proceed i can your honor thank you very much i would your honor just before i start would you like me to go back to the beginning the only point i really  ordinance there was no finding by the district court either way that we fall within the city ordinance after the district court had heard the evidence at trial so a very important piece of evidence at trial they came in through the testimony of captain two kolo who wrote the taxi rules is that the taxi rules had never been applied to any sort of pre arranged ride or offers the product at issue in this case is a pre arranged ride as opposed to  pick up the passenger and the reason captain jacomo explained to the court and the other police department witnesses corroborated this is because a pre arranged ride is a public danger when two strangers meet in a card to exchange cash and so the weight of the testimony from all the law enforcement witnesses that testified was that these rules had not been applied to prearrange  rides and in fact this was the city's position in the taxi industry mood for an injunction in two thousand and fifteen the city of boston filed a brief with the court that said we welcome for and other ride here in companies because they offer and you diverse method of competition and options for consumers that lower prices and have greater in availability so the crn was the issue of having a street male where you pick up a stranger on the street and take them into your car and this was the district court presided over a trial and and saw the evidence that the city not only allowed to go to operate but really welcomed her into the city because as the district court noted at the same time that right sharing was coming on the scene there was an expos by the boston globe  at least ten pieces of evidence about movers conduct that showed that the city was welcoming it when there were e mails that said just watch there were letters were said please let us know if you ever change your policy of non enforcement the mayor went on the radio to say you can't be ticketed under the taxi rules if you're in hoover the governor put out repeated press releases that said can continue operating in the commonwealth we're partner regulation would not be sufficient in itself to rise to the level of ninety three dollars a day so for ninety three dollars any courts look at all the circumstances they look at and they specifically look at circumstances that as the st circuit it's now that area that i that's only with respect to business to business claims under section eleven right yes your honor and this is a check i know that's what that talking about here i just want to make sure you're ok yes but let me return to the common law claim because there are a number of things that i feel must be corrected so to begin with if you look at the waca keys the wada case is very clear that a right to restrain competition must be specifically granted and it gives an example that we would commend to the court of a statute they did grant specifically such a right it is g l ninety three dollars section fourteen each and what that section says specifically gives a party to go into court to sue over a right to exclude a competitor and there is no such thing that appears in the taxi regulations and there's no such th and thirty report by the special commission of licensing of taxicabs stands which is the only basis that appellant's put forward to say that they have a right to exclude competition so to be clear a licensing statute does say a certain set of businesses can be licensed or individuals but what the court what it is talking about is the right to have a private right of action to sue to exclude a new market entran and it would be particularly absurd if they were right in the tax rules to exclude a future new market entrant that didn't exist at the time that the rules were written and to whom the kind of service they provide was never applied prearranged rides under the taxi rules so if you look at that one thousand nine hundred and thirty special commission on licensing report and a palace did not file the entire thing with the court we did that that had to do with a problem a taxi stands and so did the limitation on the number of medallions so if the court were to look at the case town taxi that ms browner cited when they are talking about destructive competition what they are talking about is that land owners would give certain permissions to would go to the commissioner for certain permissions to occupy certain excellently placed taxi stands in the market and that was creating problems with regard to the taxi stands and so the reason that the limitation on medallions were placed was not so taxi owners could then have a pride of private rate of action to exclude any competition from the market far from it it on the medallions right the point of the cap on the medallions was to limit the number of taxis vying with each other to have access to the taxi stands that is what town taxi says and that's what this report says but it was not to it was not to give the taxis a private right of action to sue newmarket competitors they come into the market and incidentally even if it was to create a market of taxis a monopoly of taxis it still would not mean for private industry to be able to sue competitors that come into the market and we would commend to the port the rd circuit's decision  was decision in philadelphia taxi and the seven circuits decision in any way trance trade association where they also look at tax you will see and judge posner goes into this in great depth and says no the the point of getting a is that you have a medallion which entitles you a right to drive under that medallion but not to exclude newmarket entrance the nd purpose of these rules which goes directly to the in a click ability of seven hundred and ten is that those are licenses as judged just cats and marines that were put there for public convenience and necessity and that language comes directly from town taxi and ten as this court knows does not apply to licenses for physical or police purposes so the the taxi rules are regulated by the boston police department there are the it goes all the way up the chain sorry your sister began especially with the statement that the decision of the district court turns our system of laws on its head establishing a dangerous precedent that government officials can permit violations  democratically elected unambiguous laws and commercial actors can violate those laws enroll in reliance on such permission you've been responding to that but i was wondering if you could get us in two sentences you respond you're right that was never our human and the just report was very expressed that it did not rely on any statements of government officials for suppose a good faith defen the point of looking at what the government officials told her and what we knew and what we were said to the government officials is to look at the commercial marketplace which is the political standard under ninety three a the st circuit has also said that you look at what both parties knew or should have known and so part of what hoover knew came from these this constant flow of information it was receiving from the individuals charged with deciding whether or not to apply the tax rules and the individuals that were very publicly in statements to enter the market welcoming into the market i also would very much like to address the point ms browner made about unfair method of competition and just to be completely clear below and to the district court the appellant's consistently argued the term unfair generally they did not parse out unfair methods of competition from unfair ac practices and the court could look at the findings of fact paragraph three circuit three hundred and sixteen dollars to find an example of that now they're on appeal and they want to separate standard to apply because they they don't want specifically i'm speaking here about caton and the massachusetts school of law case specifically say that that appellant's must have proven anti competitive effects and anti competitive effects under the of competition is if there is a very specific think it has to be injury to the market and injury to consumers and competition it is not injury to a competitor and so to the extent that they talk about cost and pricing advantages and in vail ability that is not injury to the market in fact that is the kind of competition that is encouraged and judge posner makes and judge randell both make these points  which is lower cost and greater availability from a new market entry and something that is encouraged under the law of competition but in any event that is not something that the appellant's in this case try to prove and in fact in their findings of fact footnote nine they express please say that they don't need to prove anti competitive facts they didn't put on any market expert the only market expert was our expert and his testimony was undisputed so i  even if it were not waived there was no evidence put on with regard to this and in fact plans consistently argued for an entirely others other standard the standard of agree just yes so on that topic with regard to ninety three dollars a judge johnson asked a number of questions about the application of the tax year rules i just want to be very clear that even if there were a violation of the tax the rules in that would not be sufficient to constitute so in this case hoover had come into the market it had asked for the position of the city and the city had said you know just launched there were you know regulatory signals that we case and in particular the cablevision case in the st circuit so the cablevision case bears some of this we're going to need to wrap up we've given you extra time ok i appreciate that your honor may i finish the description of the cablevision case depends how long you go how about twenty seconds ok ok so in cablevision what boston addison said to the public improvement commission was we're going to use fiber optic cables under the city and the public improvement commission said to boston anderson i don't think there's a rule about that i'm not sure you can proceed at your own risk and  later the law changed and this conduct was sanctioned and even based on that which is far less than uber understood from the city in this case even in that case in that atmosphere regulatory indignity there was found to be no ninety three dollars a violation and in fact even just this direction of proceeding your own risk was the court said might even constitute affirmative permission so here the district court found  you know upwards of ten relevant facts encouraging were to be in the market that they wanted to bring the market they thought it would diversify competition and optionality for consumers and benefit consumers at a time when the taxi industry  find that there was a violation of the boston ordinance after trial that is in conclusion of law number two and as judge thompson pointed out and that judge express stated prior to trial the terms of the boston orman's were absolutely clear on its face that there was no good faith interpretation of that ordinance that allowed it to complete there is no exceptions to the in the boston or new ads for prearrange rights and captain chuckle a said the reason they didn't enforce against prearranged rights was because of resource allocation issues and he expressly said that the language was was brought up with respect to the senate commission report i want to point out that it was not just limited to taxi stands in the conclusion of the report was the commission believes there should be established a maximum number of taxicabs to be operated in the city of boston so that there should be some protection from unreasonable and destructive competition so there's no question that that was one of the purposes of the statutory account and as i said there would be no other purpose of it this that and town taxi also talks about how it is a regulated monopoly this was a statutorily created and regulated monopoly and no matter how much we want to point no city or state official had the power to exempt hooper from complying with the record when laws we said back to cultural association case and several others and cannot rely as a matter of law on statements of government officials acting contrary to walk the deck esteem no case so there are many goober cannot there is nothing in the statute that allows them to operate and there is nothing in the law that allowed them to operate the fact of the matter is we were had a way to become legal it eventually did it got to the statute changed but during the spirit three years it was operating it was not complying with the law and the district court held that it was not complying with the law and the last point that i would like to make is on the issue of the unfair methods of competition we absolutely argued that hooper getting cost about how when you the meritocracy case which says that there is no good faith there's no doubt when one company complies with the law and the other company doesn't comply with the law that they get about damages if the courts any of you any of the judges would like to ask me questions about it i'd be happy to respond but otherwise we must on the record thank you counsel you take the case under advisement thank you your honor that concludes the argument in this case attorney on an attorney don you should disconnect from the hearing at this time