Uber v. NYC Taxi Commission

FILED: NEW YORK COUNTY CLERK 12/09/2022 09:41 AM INDEX NO.
160451/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/09/2022
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
UBER USA, LLC, Index. No. ____________
Petitioner,
v.
NEW YORK CITY TAXI & LIMOUSINE VERIFIED ARTICLE 78 PETITION

COMMISSION; DAVID DO, in his official AND APPLICATION FOR A
capacity as Commissioner of the New York City TEMPORARY RESTRAINING
Taxi & Limousine Commission; THE CITY OF ORDER AND PRELIMINARY
NEW YORK, INJUNCTION
Respondents.
Petitioner Uber USA, LLC (“Uber”), by and through its undersigned counsel, for its
Verified Petition (“Petition”), alleges as follows.
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FILED: NEW YORK COUNTY CLERK 12/09/2022 09:41 AM INDEX NO. 160451/2022
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
PARTIES ........................................................................................................................................ 7
JURISDICTION AND VENUE ..................................................................................................... 7
FACTUAL ALLEGATIONS ......................................................................................................... 8
A. Uber Contributes to New Yorkers’ Transportation Options. .........................................8
B. The Commission Implemented Driver Minimum Pay Rules in 2019, and Uber
Did Not Challenge Those Rules. ...................................................................................8
C. Between 2020 and the Challenged Rule, the Commission Made Two
Adjustments to the Minimum Driver Pay Rates Using Yearly Averages of the
CPI-W Inflation Measure, and Uber Did Not Challenge Those Adjustments. ............11
D. In September 2022, the Commission Proposed a Rule Using New Data and
Calculations Designed to Maximize Per Mile and Per Minute Rates While Wildly
Departing from the Prior Methodology. ......................................................................13
E. The Commission Failed to Disclose the Information and Documents It Relied On
in Proposing the First Proposed Rule...........................................................................17
F. Commenters Demonstrated the Numerous Flaws in the First Proposed Rule
During the Initial Comment Period and Offered Rational Alternatives. .....................19
G. The Commission Slightly Modified the Proposed Rule Prior to Passage, but
Retained Its Outcome-Driven Approach and Critical Flaws, Including the Use of
a Cherry-Picked Volatile Index for One-Time Only and Cherry-Picked Months
of the Year....................................................................................................................25
H. The Commission Approved the Second Proposed Rule Without Addressing or
Considering the Numerous Flaws that Had Been Explained To It. .............................29
I. The Commission Failed to Disclose the Information and Documents It Relied on
in Proposing the Challenged Rule................................................................................30
J. Petitioner and Other New Yorkers Who Need Reliable and Affordable
Transportation Will Suffer Severe and Irreparable Harm Should the Challenged
Rule Go Into Effect. .....................................................................................................32
STANDARD OF REVIEW .......................................................................................................... 33
ARGUMENT ................................................................................................................................ 35
I. The Challenged Rule Is Arbitrary and Capricious. ........................................................... 35
A. The Challenged Rule Is Arbitrary and Capricious Because It Deviates from Past
Precedent Without Explanation. ..................................................................................36
B. The December 2022 Rate Adjustment Is Based on an Arbitrarily Cherry-Picked
Set of Months Designed to Yield a Substantial Rate Increase.....................................40
C. The December 2022 Per Mile Rate Is Based on an Arbitrarily Selected Volatile
One-Time-Use-Only Price Index Which Spiked During the Relevant Time
Period. ..........................................................................................................................44
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D. The Commission Arbitrarily Refused to Consider Multiple Preferable

Alternatives to the Challenged Rule’s December 2022 Per Mile Rate
Adjustments. ................................................................................................................46
E. The Commission’s Per Minute Rate Adjustment Does Not Match with the
Articulated Purpose—Approximating New York City Minimum Wages...................50
F. The Challenged Rule’s 2023 and 2024 Per Mile and Per Minute Rate
Adjustments Arbitrarily Omit Relevant Months of Data Without Explanation. .........51
G. The Challenged Rule’s Rate Adjustments for 2025 and Onward Completely
Ignore Data that Shows Rates Should Be Adjusted Downward Instead of
Upward. ........................................................................................................................52
II. The Challenged Rule Is Arbitrary and Capricious Because the Commission Failed to
Failed to Account for Unintended Consequences. ............................................................ 54
III. The Challenged Rule Is Contrary to Law. ........................................................................ 57
A. The Challenged Rule Is Contrary to Law Because the Commission Did Not
Disclose or Adequately Identify the Data and Considerations on Which the
Challenged Rule Is Purportedly Based. .......................................................................57
B. The Challenged Rule Is Contrary to Law Because the Commission Did Not
Respond to Material Comments...................................................................................60
C. The Commission Violated the Directive of the City Council by Passing a Rule to
Achieve Rate-Hike Outcomes and Failing to Enact a Methodology for
Determining Payments. ................................................................................................63
IV. The Court Should Strike the Invalid Provisions of the Challenged Rule While Allowing
the Unchallenged Provisions to Take Effect. .................................................................... 66
V. The Court Should Enjoin Enforcement of the Challenged Rule Pending Adjudication of
the Petition. ....................................................................................................................... 68
A. Uber Is Likely to Succeed on the Merits. ......................................................................... 69
B. Uber Will Suffer Irreparable Harm Absent Preliminary Relief. ....................................... 70
C. The Balance of Equities Is Overwhelmingly in Uber’s Favor. ......................................... 80
D. This Court Should Issue a Temporary Restraining Order Preventing the Challenged Rule
from Going Into Effect While This Court Adjudicates Uber’s Request for a Preliminary
Injunction. ......................................................................................................................... 83
CAUSES OF ACTION ................................................................................................................. 84
PRIOR APPLICATION................................................................................................................ 87
TRIAL DEMAND ........................................................................................................................ 87
RELIEF REQUESTED ................................................................................................................. 87
ii
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TABLE OF AUTHORITIES
Page(s)
Cases
1234 Broadway LLC v. W. Side SRO Law Project,

86 A.D.3d 18 (1st Dep’t 2011) ................................................................................................68
Ahmed v. City of New York,

129 A.D.3d 435 (1st Dep’t 2015) ......................................................................................62, 64
Am. Ass’n of Cosmetology Schs. v. Devos,

258 F. Supp. 3d 50 (D.D.C. 2017) ...........................................................................................48
Am. Clinical Lab. Ass’n v. Azar,

931 F.3d 1195 (D.C. Cir. 2019) ....................................................................................... passim
Am. Fuel & Petrochemical Mfrs. v. EPA,

3 F.4th 373 (D.C. Cir. 2021) ....................................................................................................66
Am. Wild Horse Pres. Campaign v. Perdue,

873 F.3d 914 (D.C. Cir. 2017) .................................................................................................36
Anonymous v. Berlin,
911 N.Y.S.2d 797 (Sup. Ct. 2010) ...........................................................................................34
Asprea v. Whitehall Interiors NYC, LLC,

206 A.D.3d 402 (1st Dep’t 2022) ............................................................................................74
Baldwin Union Free Sch. Dist. v. Cnty. of Nassau,

84 N.Y.S.3d 699 (Sup. Ct. 2018) .............................................................................................64
Basank v. Decker,
449 F. Supp. 3d 205 (S.D.N.Y. 2020)................................................................................82, 83
Bass v. WV Pres. Partners, LLC,

209 A.D.3d 480 (1st Dep’t 2022) ............................................................................................80
Boreali v. Axelrod,
71 N.Y.2d 1 (1987) ..................................................................................................................64
Brunswick Hosp. Ctr., Inc. v. Daines,

26 Misc. 3d 1225(A), (N.Y. Sup. Ct. Feb. 22, 2010) ..............................................................35
CanWest Glob. Commc’ns Corp. v. Mirkaei Tikshoret Ltd.,

9 Misc. 3d 845 (N.Y. Sup. Ct. 2005) .......................................................................................77
iii
4 of 98
Carlson v. Postal Regul. Comm’n,

938 F.3d 337 (D.C. Cir. 2019) ...........................................................................................65, 66
Matter of Charles A. Field Delivery Serv., Inc.,

66 N.Y.2d 516 (1985) ..................................................................................................34, 36, 37
Chi. Research & Trading v. N.Y. Futures Exch., Inc.,

84 A.D.2d 413 (1st Dep’t 1982) ........................................................................................70, 77
City of Brookings Mun. Tel. Co. v. FCC,

822 F.2d 1153 (D.C. Cir. 1987) ...............................................................................................46
City of Idaho Falls v. F.E.RC

629 F.3d 222 (D.C. Cir. 2011) ......................................................................................... passim
City of New York v. Diamond,

379 F. Supp. 503 (S.D.N.Y. 1974)...........................................................................................78
Colton v. Berman,
21 N.Y.2d 322 (1967) ..............................................................................................................55
Council of N.Y.C. v. Dep’t of Homeless Servs. of N.Y.C.,

22 N.Y.3d 150 (2013) ..............................................................................................................34
Credit Agricole Indosuez v. Rossiyskiy Kredit Bank,

94 N.Y.2d 541 (2000) ..............................................................................................................68
Davis Cnty. Solid Waste Mgmt. v. EPA,

108 F.3d 1454 (D.C. Cir 1997) ................................................................................................66
Dist. Hosp. Partners, L.P. v. Burwell,

786 F.3d 46 (D.C. Cir. 2015) .............................................................................................46, 47
Doe v. Axelrod,
73 N.Y.2d 748 (1988) ..............................................................................................................68
Eli Lilly & Co. v. Cochran,

526 F. Supp. 3d 393 (S.D. Ind. 2021) ......................................................................................77
Flatiron Cmty. Ass’n v. N.Y.S. Liquor Auth.,

784 N.Y.S.2d 823 (Sup. Ct. 2004) ...........................................................................................82
Garden City Co. v. Erickson,

251 A.D.2d 262 (1st Dep’t 1998) ............................................................................................70
Gilliland v. Acquafredda Enters., LLC,

936 N.Y.S.2d 125 (1st Dep’t 2011) .........................................................................................69
iv
5 of 98
Gramercy Co. v. Benenson,

223 A.D.2d 497 (1st Dep’t 1996) ............................................................................................79
H.D. Smith Wholesale Drug Co. v. Mittelmark,

No. 650459/2011, 2011 WL 5964555 (N.Y. Sup. Ct. Nov. 18, 2011) ..............................69, 77
Invenergy Renewables LLC v. United States,

422 F. Supp. 3d 1255 (Ct. Int’l Trade 2019), as modified, 476 F. Supp. 3d
1323 (2020) ........................................................................................................................77, 79
ITServe All. Inc. v. Scalia,

No. 20-14604, 2020 WL 7074391 (D.N.J. 2020) ....................................................................77
Just Bagels Mfg., Inc. v. Mayorkas,

900 F. Supp. 2d 363 (S.D.N.Y. 2012)......................................................................................59
Klein, Wagner & Morris v. Lawrence A. Klein, P.C.,

186 A.D.2d 631 (2d Dep’t 1992) .................................................................................75, 76, 79
Ma v. Lien,
198 A.D.2d 186 (1st Dep’t 1993) ......................................................................................69, 79
Liliputian Sys., Inc. v. Hazardous Materials Safety Admin.,

741 F.3d 1309 (D.C. Cir. 2014) .........................................................................................53, 60
Make the Road N.Y. v. Wolf,

962 F.3d 612 (D.C. Cir. 2020) .................................................................................................60
Matter of N.Y. State Assn. of Homes & Servs. For Aging v. Perales,
179 A.D.2d 296 (3d Dep’t 1992) .............................................................................................73
McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co.,

114 A.D.2d 165 (2nd Dep’t 1986) ...........................................................................................69
MD/DC/DE Broadcasters Ass’n v. FCC,

236 F.3d 13 (D.C. Cir. 2001) ...................................................................................................67
Metro. Taxicab Bd. of Trade v. City of New York,

No. 08CIV7837(PAC), 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008) ....................................74
Metro. Taxicab Bd. of Trade v. N.Y.C. Taxi & Limousine Comm’n,

115 A.D.3d 521 (1st Dep’t 2014) ......................................................................................72, 73

18 N.Y.3d 329 (2011) ........................................................................................................37, 39

38 Misc. 3d 936 (N.Y. Sup. Ct. 2013) ...............................................................................73, 74
6 of 98
Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29 (1983) ........................................................................................................... passim
N. Mariana Islands v. United States,

686 F. Supp. 2d 7 (D.D.C. 2009) .............................................................................................78
N.Y. State Ass’n of Counties v. Axelrod,

78 N.Y.2d 158 (1991) ........................................................................................................33, 34
N.Y. State Superfund Coal., Inc. v. N.Y. State Dep’t of Envtl. Conservation,
18 N.Y.3d 289 (2011) ........................................................................................................34, 62
Nassau Cnty. Town of N. Hempsted v. Cnty. of Nassau,

929 N.Y.S.2d 833 (Sup. Ct. 2011) ...........................................................................................82
Nassau Soda Fountain Equip. Corp. v. Mason,

118 A.D.2d 764 (2d Dep’t 1986) .............................................................................................72
Nat’l Energy Marketers Ass’n v. N.Y.S. Pub. Serv. Comm’n,

167 A.D.3d 88 (3rd Dep’t 2018) ..............................................................................................64
Nat’l Fuel Gas Distrib. Corp. v. Pub. Serv. Comm’n of N.Y.,

16 N.Y.3d 360 (2011) ..............................................................................................................35
NRDC v. EPA,
808 F.3d 556 (2d Cir. 2015).....................................................................................................34
Pell v. Bd. of Educ.,

34 N.Y.2d 222 (1974) ........................................................................................................33, 44
Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ...................................................................................................................60
Register.com, Inc. v. Verio, Inc.,

356 F.3d 393 (2d Cir. 2004).....................................................................................................74
Richardson v. Comm’r of N.Y.C. Dep’t of Soc. Servs.,

88 N.Y.2d 35 (1996) ................................................................................................................34
Saratoga Cnty. Chamber of Com. v. Pataki,

100 N.Y.2d 801 (2003) ............................................................................................................64
Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs.,

77 N.Y.2d 753 (1991) ..............................................................................................................35
Second on Second Café, Inc. v. Hing Sing Trading, Inc.,

66 A.D.3d 255 (1st Dep’t 2009) ..............................................................................................76
vi
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Seitzman v. Hudson River Assocs.,

126 A.D.2d 211 (1st Dep’t 1987) ............................................................................................80
Sierra Club v. Marsh,

872 F.2d 497 (1st Cir. 1989) (Breyer, J.) .................................................................................79
Singh v. Taxi & Limousine Comm’n of N.Y.C.,

282 A.D.2d 368 (1st Dep’t 2001) ............................................................................................34
Street Vendor Project v. City of New York,

811 N.Y.S.2d 555 (Sup. Ct. 2005) .........................................................................34, 47, 60, 62
Sylmark Holdings Ltd. v. Silicone Zone Int’l Ltd.,

783 N.Y.S.2d 758 (N.Y. Sup. Ct. 2004) ..................................................................................75
Teamquest Corp. v. Unisys Corp.,

No. C97-3049, 2000 WL 34031793 (N.D. Iowa Apr. 20, 2000) .............................................75
Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) .................................................................................................................74
Trump on Ocean, LLC v. Cortez-Vasquez,

76 A.D.3d 1080 (2d Dep’t 2010) .................................................................................35, 41, 52
Tze Chun Liao v. N.Y. State Banking Dep’t,

74 N.Y.2d 505 (1989) ........................................................................................................34, 62
Vapor Tech. Assoc. v. Cuomo,

118 N.Y.S.3d 397 (Sup. Ct. 2020) .....................................................................................79, 80
Veeco Instruments Inc. v. SGL Carbon, LLC,

No. 17-CV-2217 (PKC), 2017 WL 5054711 (E.D.N.Y. Nov. 2, 2017) ..................................75
Willis of N.Y., Inc, v. DeFelice,

299 A.D.2d 240 (1st Dep’t 2002) ......................................................................................72, 75
Yakima Valley Cablevision, Inc. v. FCC,

794 F.2d 737 (D.C. Cir. 1986) .................................................................................................47
ZEHN-NY LLC v. N.Y.C. Taxi & Limousine Comm’n,

No. 159195/2019, 2019 WL 7067072 (N.Y. Sup. Ct. Dec. 23, 2019) ........................57, 60, 65
Statutes
N.Y. Lab. Law § 652 .....................................................................................................................51
New York Civil Procedure Law Section 506 ..................................................................................7
New York Civil Procedure Law Section 7803 ................................................................................7
vii
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New York Civil Procedure Law Section 7804 ................................................................................7
viii
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INTRODUCTION
1. The New York Taxi & Limousine Commission (the “Commission”) has since
February 2019 required by rule that Petitioner Uber USA, LLC (“Uber”) and other high-volume
for-hire vehicle services (“Services”) pay drivers (“Drivers”) minimum amounts per mile and per
minute, and has adjusted upwards those rates for inflation two times—each time using a broad-
based and common inflation index and comparing the percentage change in that index over two
separate twelve-month periods. Now, the Commission has proposed dramatic, unprecedented, and
unsupported hikes, purportedly for inflation, to the minimum per mile and per minute rates paid to
Drivers, which are set to take effect on December 19, 2022. The Commission achieved these hikes
using an index that the Commission has never used before and, after the December 19, 2022 rate
hikes, will not use again, and by arbitrarily selecting the months of data from the index to compare.
2. Fundamental economic principles reject the Commission’s approach as unsound,
and it appears selected to achieve a predetermined result. If the Challenged Rule goes into effect
on December 19th, Uber would be forced to expend additional amounts between $21 and $23
million per month—monies that, as a matter of law, Uber would never be able to recover from the
City, or anyone else. If, on the other hand, Uber offsets those additional payments by increasing
rider fares, the average rider fare in New York City would rise by 10%. Such a significant fare
hike, right before the holidays, would irreparably damage Uber’s reputation, impair goodwill, and
risk permanent loss of business and customers. Uber does not challenge this Minimum Pay Rule,
as first enacted in 2019, or the need to adjust minimum rates for inflation.1 Just the opposite. Uber
strongly supports Drivers receiving fair compensation and did not move to challenge the original
1
See N.Y. Comp. Codes R. & Regs. tit. 35, § 59D-22 (the “Minimum Pay Rule”), Ex. 1.
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Minimum Pay Rule. Nor did Uber move to challenge the Commission’s subsequent and rational
inflation adjustments to the Minimum Pay Rule in February 2020, or most recently in March 2022.
3. But adjusting rates for inflation should be a ministerial act, relying on consistent
data and methods to ensure consistent and rational adjustments. That is what the Commission did
before but that is not what the Commission has proposed here. The Commission has sought to
toss the past four years of understandable and rational calculations out the window, suddenly
arbitrarily picking an individual month or small subset of months and suddenly switching to a
volatile inflation index for a one-time increase that makes no sense, and that is a drastic departure
from the Commission’s past practice or any rational approach. The Challenged Rule has every
hallmark of arbitrary and capricious agency action, because it (i) sharply departs from past practice
without justification, (ii) relies without explanation or justification on gerrymandered time frames,
(iii) adopts a volatile index for one-time use without basis in logic or precedent, and (iv) is the
product of the Commission’s refusal to provide an adequate record for the public to participate in
the comment process. The law does not permit any of this, let alone all of it, in one proposed rule.
4. The Commission’s proposed hikes are drastic both in substance and in process.
Earlier increases have ranged from 1.46% to 5.34% against preexisting rates, and accurately
reflected the impact of inflation, but the Challenged Rule would result in a 7.18% percent increase
in per minute rates, and a 16.11% percentage increase in the per mile rate. The Challenged Rule’s
break with past practice is well illustrated in the following chart, with the immediate effect of the
rule change highlighted in yellow:
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Effective as of date Per Per Index used by TLC Time period used in %
mile minute change calculation
February 2019 $1.088 $0.495 n/a—original rule implementation
February 2020 $1.103 $0.502 Consumer Price Index for
Urban Wage Earners and Dec-18 to Nov-19 average vs.
% change over 1.46% 1.46%
Clerical Workers for the NY-NJ- Dec-17 to Nov-18 average
previous rate
PA metro area (the “CPI-W”)
March 2022 $1.161 $0.529
2021 average vs. 2019
% change over 5.34% 5.34% CPI-W
average
previous rate
December 2022 $1.348 $0.567 Per minute: CPI-W
(Proposed) Sep-22 vs. 2021 average
% change over 16.11% 7.18% Per mile: Consumer Price Index
previous rate for All Urban Consumers for Apr-Sep’22 average vs.
the NY-NJ-PA metro area 2018 average
(“CPI-U Transportation”)
March 2023 TBD TBD
CPI-W Dec-22 vs. Sep-22
(Proposed)
March 2024 TBD TBD
CPI-W 2023 average vs. Dec-22
(Proposed)
March 2025 TBD TBD 2024 average vs.
(Proposed) CPI-W 2023 average
(but only if positive)
5. In previous years, the Commission relied on comparing two twelve-month averages
when measuring the impact of inflation. Now, for the first time, the Commission has arbitrarily
chosen to measure inflation using either single months of small sets of months, which are
incomplete data, and mixes and matches time frames without any rhyme or reason. For example,
to determine the per minute rate increase, the Commission proposes to measure inflation for its
December 19, 2022 increase by comparing data from September 2022 against the twelve-month
average for 2021. Similarly, the per mile rate increase is based on comparing the average price-
index data for April through September 2022 against the twelve-month average for 2018, ignoring
January through March 2022 data. And this problem persists in later years, such as the March
2023 rate hike that would compare December 2022 against September 2022, and the March 2024
rate hike’s comparison of the twelve-month average for 2023 against December 2022. The
Commission has provided no explanation, let alone a rational one, for including some dates in its
measurements and excluding others.
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6. The Commission has also relied in the past on one index to measure inflation: the
Consumer Price Index for Urban Wage Earners and Clerical Workers for the NY-NJ-PA metro
area (the “CPI-W”). Now, for the first and only time, the Commission proposes to use for the
December 19, 2022 increase, a highly volatile price index focused on transportation costs, before
reverting back to CPI-W for all future inflation adjustments. As reflected in the following graph,
the transportation sub-basket of the Consumer Price Index for All Urban Consumers for the NY-
NJ-PA metro area (“CPI-U Transportation”) has fluctuated wildly in recent years, especially in
comparison to CPI-W.
7. The Commission has provided no explanation—reasoned or otherwise—for
choosing such a volatile index, one driven by abnormally high gas prices that already have
subsided. And then the Commission compounds the irrationality by locking in the proposed
increases for all time and ignoring any future data showing a negative rate of inflation.
8. All these flaws exist in the context of a suspect and secretive process that violates
the City Administrative Procedure Act (“CAPA”), the Freedom of Information Law (“FOIL”), and
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Article 78. The Commission thwarted the notice and comment process by refusing to turn over
the materials it relied on when crafting the Challenged Rule, including written comments
submitted during the rulemaking. Despite repeated requests, including through FOIL, the
Commission refused to provide any materials explaining its decision-making. The Commission
also ignored substantial comments submitted throughout the course of the rulemaking process,
failing to address a single one, or the important issues raised, in any version of its proposals. Its
statement of basis and purpose did not respond to any comments, or alternative proposals, at any
stage of the rulemaking process. Indeed, in such a rush was the Commission to jam through this
rate hike that it did not even attempt to fix multiple glaring typos that were pointed out prior to the
Challenged Rule’s enactment. And it made no effort to explain the reasons for so radically
departing from established, consistently-applied practice.
9. The Challenged Rule will cause immediate and irreparable harm to Uber. Absent
raising rider prices, complying with the Challenged Rule would require Uber to absorb $21 to
$23 million per month in increased payments, slashing significantly Uber’s expected variable
margin in New York City. That injury alone is irreparable because Uber has no remedy at law for
the increased amounts it will bear if the Challenged Rule is enacted. Even if this Petition is
successful and the Challenged Rule is vacated, Uber will not be able to retroactively recover those
increased amounts from the City of New York, users of Uber’s platform, or anyone else. The
injury would be irreparable.
10. Passing on these increased amounts to riders is no easy answer. Even if Uber were
to offset these increased payments in whole or in part with rider price increases, that would not
provide a remedy for the injury Uber suffered, just as price increases do not provide a “remedy”
for amounts a business should not have borne in the first place. And it would compound Uber’s
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irreparable injury by alienating riders from the platform, now and perhaps forever. Any increase
in amounts paid by riders would land on top of prices that have increased by 48% since 2019, at a
time of significant inflation, and on the cusp of the holiday season. That, in turn, will cause Uber
to lose goodwill, as well as trip volume and revenues, as riders look to other transportation options,
including taxicabs, livery, and subways, or simply stay home.
11. Add to all of that the irreparable procedural injury that Uber has suffered through
the rulemaking process. The Commission undermined notice and comment by refusing to turn
over the information on which it relied in crafting the Challenged Rule. In so doing, the
Commission deprived Uber and members of the public a full opportunity to meaningfully comment
on the Challenged Rule: procedural harm that will never be rectified if the rule goes into effect.
12. The Challenged Rule will harm riders, Drivers, and/or the ride-share industry as a
whole. A rate increase of this magnitude may very likely result in higher rider fares. Those higher
fares, in turn, will depress the number of rides requested through the Uber platform. Fewer
requested rides translates into fewer opportunities for Drivers to earn fees. The Challenged Rule
could very well have the effect of harming Driver earnings, undermining the purpose of these
regulations. The record does not show how, if at all, the Commission balanced these serious risks
of harm.
13. In light of these irreparable harms to Uber’s goodwill and reputation, and financial
losses that Uber cannot recover from the TLC or anyone else, Uber respectfully asks this Court to
issue a temporary restraining order and preliminary injunction preventing implementation of the
Challenged Rule before December 19, 2022 and pending a ruling on Uber’s Petition.
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PARTIES
14. Uber is a Service as that term is defined in the City’s regulations. It owns “bases”
that “dispatch” For-Hire Vehicles, possessed and operated by Commission-licensed Drivers, to
transport riders who have requested a ride using the Uber Rider App.
15. Respondent New York City Taxi & Limousine Commission (the “Commission”)
is an administrative agency of the City of New York created and operating pursuant to Chapter 65
of the New York City Charter. See N.Y.C. Charter § 2300. The Commission’s principal office is
located at 33 Beaver Street, New York, New York 10004.
16. Respondent David Do serves as the Commissioner of the Commission.
Commissioner Do’s principal office is located at 33 Beaver Street, New York, New York 10004.
17. Respondent City of New York (the “City”) is a municipal corporation duly
incorporated and existing pursuant to the laws of the State of New York.
18. The Commission, Commissioner Do, and the City are collectively referred to herein
as “Respondents.”
JURISDICTION AND VENUE
19. This Court has subject matter jurisdiction to decide this Petition pursuant to Section
7803 of the New York Civil Procedure Law and Rules. The Challenged Rule was a final
determination of the Commission. This Petition challenges that determination as made in violation
of lawful procedure, affected by an error of law, and arbitrary and capricious.
20. Venue is proper in New York County Supreme Court pursuant to Sections 506(b)
and 7804(b) of the New York Civil Procedure Law and Rules because the challenged
determination occurred in New York County, which is also where Respondents’ principal offices
are located.
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FACTUAL ALLEGATIONS
A. Uber Contributes to New Yorkers’ Transportation Options.
21. In New York City, the Commission is responsible for regulating “For-Hire
Vehicles,” along with medallion taxis (or yellow cabs) and street hail liveries (or green cabs).
22. Under existing Commission regulations, For-Hire Vehicles (owned or possessed by
licensed Drivers) are authorized to provide prearranged services through Commission-licensed
bases. Bases are owned by Services like Uber.
23. Since 2013, Uber has provided in New York City a set of smartphone applications,
the Uber Driver and Rider Apps, that allow riders to create location-based ride requests and then
match those requests with Drivers who provide “For-Hire Vehicle” services, and then allow for
payment via credit or debit card. Under the predominant option (known as “Uber X”), Drivers
provide non-shared point-to-point service through which riders are picked up where they request
and dropped off at their preferred location.
24. Drivers who use the Uber Driver App in New York City, and around the country,
can choose when they log on to the Uber platform and make themselves available to receive trip
requests when they want and where they want, giving them flexibility over whether, when and
where to drive.
B. The Commission Implemented Driver Minimum Pay Rules in 2019, and

Uber Did Not Challenge Those Rules.
25. In August 2018, then-Mayor Bill de Blasio signed into law a package of legislation
directed at Services like Uber. Among the relevant measures was Local Law 150, which vested
the Commission with the limited authority to “establish[] a method for determining the minimum
payment” for Drivers. N.Y.C. Admin. Code § 19-549. The New York City Council gave specific
instructions to the Commission to accomplish that task. The Commission was to, “at a minimum,
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consider the duration and distance of the trip, the expenses of operation to the driver, any applicable
vehicle utilization standard, rates of fare and the adequacy of for-hire vehicle driver income
considered in relation to for-hire vehicle expenses.” Id.
26. In December 2018, the Commission approved a rule specifying the methodology
for calculating minimum payments for Drivers—the Minimum Pay Rule.2 Under the Minimum
Pay Rule, there are three components to calculating a Driver’s minimum payment per trip: (i) the
“per mile rate,” (ii) the “per minute rate,” and (iii) the “Utilization Rate.” The Utilization Rate is
the percentage of time that Drivers logged on to a Service’s platform spent transporting passengers,
as opposed to traveling to pick up passengers, or awaiting trip requests.3 (Uber refers to these
periods as P (or Period) 3, P2, and P1.) A Driver’s minimum payment per trip is paid only for the
time the Driver has a passenger in the vehicle on a trip (P3), and is the sum of the per mile rate
(multiplied by the number of miles traveled during the trip) plus the per minute rate (multiplied by
the number of minutes traveled during the trip), divided by the Utilization Rate, or:
27. The per mile rate intends to cover a Driver’s fixed and marginal costs associated
with their work, i.e., their expenses.4 The initial, and subsequent, per mile rates are based on two
studies of Driver expenses conducted by Professors James A. Parrott and Michael Reich (the
2
See generally Minimum Pay Rule, Ex. 1.
3
See id. § 59D-22(b), Ex. 1.
4
See Professor Steve Tadelis et al., New York City’s High Volume For-Hire Vehicle Minimum Driver Pay Rule;
Economic Analysis of the Proposed Rule Amendment of September 6, 2022 (“Tadelis”) § 1.1 ¶ 24 (Oct. 5,
2022), Ex. 2.
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“Parrott & Reich Studies”). The Parrott & Reich Studies considered a variety of Driver expenses,
ranging from gasoline and insurance, to vehicle maintenance and leasing costs.5
28. The per minute rate intends to compensate Drivers for their time spent working in
New York City.6 It provides an additional amount such that Driver net earnings after expenses,
which are covered by the per mile rate, are approximate to those of similarly situated New York
City employees.7 Specifically, the per minute rates are to approximate the New York City
minimum wage ($15 per hour) plus allowances for paid time off ($0.90 per hour) and self-
employment payroll taxes paid by independent contractors ($1.32 per hour), for a total of
$17.22 per hour.8
29. The Minimum Pay Rule set initial rates of $0.631 per mile and $0.287 per minute.9
All Services were assigned an industry-wide Utilization Rate of 58%, based on the Commission’s
calculations of the Service’s average Utilization Rate.10 Thus, accounting for Utilization Rates,
the initial per mile and per minute rates were $1.088 and $0.495, respectively.
30. In the ensuing years, the Commission would continue to calculate each Service’s
Utilization Rate, but maintain a 58% industry-wide standard for all Services.11 In calculating each
5
See James A. Parrott, Michael Reich, Jason Rochford & Xingxing Yang, The New York City App-Based Driver
Pay Standard: Revised Estimates for the New Pay Requirement (“Parrot & Reich (2019)”) 1-2 (Jan. 2019), Ex.
3; James A. Parrott & Michael Reich, An Earnings Standard for New York City’s App-Based Drivers: Economic
Analysis and Policy Assessment (“Parrott & Reich (2018)”) 25-26 (July 2018); Ex. 4; Tadelis § 1.1 ¶ 24, Ex. 2.
6
See Tadelis § 1.1 ¶ 24, Ex. 2.
7
Id., Ex. 2.
8
Id., Ex. 2.
9
Minimum Pay Rule § 59D-22(a)(1)(2), Ex. 1.
10
Parrott & Reich (2018) at 54, Ex. 4.
11
See, e.g., Email from Michelle Goldberg-Cahn, N.Y.C. Law Dep’t, to Karen Dunn, Boies Schiller Flexner LLP,
et al. (Jan. 28, 2020 3:29:23 PM UTC), Ex. 5.
10
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Service’s Utilization Rate, the Commission counted the time Drivers spent available for dispatch
for multiple Services, or “multi-apping,” equally among those Services.12
31. In addition to setting initial per mile and per minute rates, the Minimum Pay Rule
also established a methodology for adjusting for inflation per mile and per minute rates going
forward. It relied on the CPI-W and compared changes across two twelve-month periods:
“Beginning January 1, 2020 and continuing each calendar year thereafter,” the per mile and per
minute rates “will be adjusted using the twelve-month Percentage Change in the [CPI-W].”13 This
formula was based on the first of the two Parrott & Reich Studies, which recognized that:
Adjusting per mile and per minute rates “once per year . . . based on the 12-month
percentage increase in [CPI-W]” would “ensure the purchasing [power] of the
minimum pay standard is maintained over time.”14
32. Uber supported—and continues to support—Drivers receiving a fair and
appropriate minimum per-trip earnings amount in New York City pursuant to the Minimum Pay
Rule, and Uber thus did not pursue any legal challenge against that rule.
C. Between 2020 and the Challenged Rule, the Commission Made Two
Adjustments to the Minimum Driver Pay Rates Using Yearly Averages of the
CPI-W Inflation Measure, and Uber Did Not Challenge Those Adjustments.
33. On January 10, 2020, the Commission notified Services that, effective February
2020, per mile and per minute rates would be increased for inflation.15 Consistent with the
Minimum Pay Rule and the Parrott & Reich Studies, both rates would be adjusted based on the
percentage change in the average CPI-W between two twelve-month periods: December 2017
12
Comments of Uber USA, LLC and Its Affiliates, Amendments to Minimum Driver Payment Rules for HVFHS
(“Comment”) (October 5, 2022) at 18, Ex. 6. The Commission has also used a proportional allocation based on
each Service’s trip volumes, but never used the proportional calculation in setting driver payments or setting
Services’ Utilization Rates. Id.
13
Minimum Pay Rule § 59D-22(a)(4), Ex. 1.
14
Parrott & Reich (2018) at 37, Ex. 4.
15
Affidavit of R. Jason Burch (“Burch Aff.”) ¶ 4.
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through November 2018, and December 2018 through November 2019.16 This resulted in the per
mile and per minute rates increasing by 1.46%.17 Uber did not challenge this adjustment.
34. The Commission made no adjustment to the per mile or per minute rates in 2021.18
Given the state of the COVID-19 pandemic, Uber did not oppose the Commission’s decision not
to adjust rates.
35. On February 15, 2022, the Commission notified Services by letter of another per
mile and per minute rate adjustment, effective March 1, 2022.19 Consistent with the Minimum
Pay Rule, the Parrott & Reich Studies, and the February 2020 rate increase, the Commission
adjusted both the per mile and per minute rates based on the percentage change in the average CPI-
W between two twelve-month periods: January through December 2019 and January through
December 2021.20 This resulted in the per mile and per minute rates increasing by 5.3%.21 Uber
did not challenge the Commission’s decision.
16
Email from Ryan Wanttaja, N.Y.C. Taxi & Limousine Comm’n, to Josh Gold, Uber, et al. (Jan. 10, 2020
4:57:18 PM UTC) (“The per minute and per mile rates were adjusted using the Consumer Price Index (CPI) for
Urban Wage Earners and Clerical Workers for the New York-Newark-Jersey City metro area. Monthly CPIs
were averaged from December 2018 through November 2019 and compared to the average for the year before
(December 2017 through November 2018).”), Ex. 7; see also email from Michelle Goldberg-Cahn, N.Y.C. Law
Dep’t, to Karen Dunn, Boies Schiller Flexner LLP, et al. (Jan. 28, 2020 3:29;23 PM UTC) (“TLC will require
the High Volume FHV companies to follow the consumer price index adjustments on February 1, 2020 as set
forth in 35 RCNY 59B-24(a)(4).”), Ex. 6; Email from Ryan Wanttaja, N.Y.C. Taxi & Limousine Comm’n, to
Josh Gold, Uber, et al. (Jan. 28, 2020 7:23:35 PM UTC) (“The per minute and per mile rates will still be
adjusted using the Consumer Price Index, pursuant to Section 59B-24(a)(4) of TLC’s rules and as explained in
my January 10 e-mail.”), Ex. 8.
17
Tadelis § 1.2.1 ¶¶ 33, 41 & Table 2, Ex. 2; Burch Aff.. ¶ 4.
18
Burch Aff. ¶ 5.
19
Letter from Ryan Wanttaja, N.Y.C. Taxi & Limousine Comm’n, to Jason Burch, Uber, et al. (Feb. 15, 2022)
(“[E]ffective on March 1, 2022. . . the [Commission] is increasing the rates in accordance with the increase in
the [CPI-W] since the rates were last adjusted in 2020. Accordingly, the per-minute and per-mile rates will
increase 5.3%.”), Ex. 9; Burch Aff. ¶ 6.
20
Email from Ryan Wanttaja, N.Y.C. Taxi & Limousine Comm’n, to Jason Burch, Uber, et al. (Feb. 11, 2022
3:46:40 PM UTC), Ex. 10; Burch Aff. ¶ 6.
21
Letter from Ryan Wanttaja, N.Y.C. Taxi & Comm’n, to Jason Burch, Uber, et al. (Feb. 15, 2022), Ex. 9; Tadelis
§ 1.2.1 ¶¶ 34, 41 Table 2, Ex. 2; Burch Aff. ¶ 7(a).
12
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36. In a contemporaneous email to Uber, the Commission represented that, in the
future, it would continue to adjust both per mile and per minute rates based on year-over-year CPI
changes:
[For] all CPI adjustments going forward, we will use the calendar year (January
through December) averages published by the US Department of Labor for
calculating CPI adjustments to the pay rates.22
38. As a result, it was reasonable to anticipate that the next rate adjustment would be
based on the change in the average CPI between two subsequent years, i.e., in March 2023, both
the per mile and per minute rates would be adjusted based on the percentage change in the average
CPI-W between January through December 2021 and January through December 2022.
D. In September 2022, the Commission Proposed a Rule Using New Data and
Calculations Designed to Maximize Per Mile and Per Minute Rates While
Wildly Departing from the Prior Methodology.
37. On May 24, 2022—less than months after the per mile and per minute rates were
increased—the Commission held a hearing to solicit “input on anything [commenters] believe the
TLC should consider when setting minimum driver pay rates for high volume, for-hire service
drivers.”23 The Commission expressed that it “hope[d] to hear testimony about expenses related
to operating a for-hire vehicle” so that it could “properly set the minimum per mile and per minute
rates for high volume for-hire drivers.”24 “Any adjustments we make to minimum driver pay
rates,” the Commission explained, “need to be based on driver expense data.”25
38. On September 6, 2022, the Commission released proposed amendments to the
Minimum Pay Rule (the “First Proposed Rule”), which also increased the rates, purportedly based
22
Email from Ryan Wanttaja, N.Y.C. Taxi & Limousine Comm’n, to Jason Burch, Uber, et al. (Feb. 11, 2022)
(emphasis added), Ex. 10; Burch Aff. ¶ 7(d).
23
N.Y.C. Taxi & Limousine Comm’n, Public Hearing, May 24, 2022 (“May 24, 2022 Tr.”) at 3:15-19, Ex. 11.
24
Id. at 3:23-24-4:3-8, Ex. 11.
25
Id. at 6:20-24, Ex. 11.
13
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on inflation.26 In stark contrast to the February 2020 and March 2022 rate adjustments—which
increased the per mile and per minute rates by 1.46% and 5.34%, respectively—the First Proposed
Rule would have raised per mile rates by 25.61% and per minute rates by 7.82%, in comparison
to rates currently in effect.27 To achieve this substantial rate increase, the Commission crafted a
rule that deviated materially from the Minimum Pay Rule, the Parrott & Reich Studies’ guidance,
the February 2020 and March 2022 rate adjustments, and the Commission’s February 2022
representations.
39. Per mile and per minute rates would have been adjusted effective October 1,
2022—not January, as prescribed by the Minimum Pay Rule, nor February or March, when the
2020 and 2022 rate adjustments had been implemented.28 The update would also have come only
seven months since the last rate increase, as opposed to one or two years, as in the case of the
February 2020 and March 2022 rate adjustments, and as prescribed by the Minimum Pay Rule.
40. The October 1, 2022, per minute rate adjustment would have been based on the
percentage change in CPI-W between (i) the twelve-month period from January to December 2021
and (ii) the single month of June 2022. Thus, the Commission proposed to adjust per minute rates
in part on a single month’s worth of data, not (i) twelve-month periods as prescribed by the
Minimum Pay Rule, as recommended by the Parrott & Reich Studies (as ensuring the purchasing
power of the minimum pay standard is maintained over time), or as implemented by the February
2020 and March 2022 rate adjustments or (ii) calendar-year averages, as the Commission had
promised in February 2022.29
26
See N.Y.C. Taxi & Limousine Comm’n, Notice of Promulgation, Statement of Basis and Purpose of Rules,
Amendments to High-Volume For-Hire Services, Sept. 6, 2022 (“First Proposed Rule”), Ex. 12.
27
Tadelis § 1.2.1 ¶¶ 34, 37, 41 & Table 2, Ex. 2; First Proposed Rule at 2, Ex. 12.
28
First Proposed Rule § (a)(1)-(2), Ex. 12; Tadelis § 1.2.1 ¶ 34, Ex. 2.
29
First Proposed Rule § (a)(1)-(2), Ex. 12.
14
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41. June 2022, the Commission’s hand-selected month, recorded the single highest
CPI-W values since the Minimum Pay Rule was enacted in 2019, and thus would have produced
a disproportionately large rate increase of 7.82%.30
42. The October 1, 2022, per mile rate would have been adjusted based on the
percentage change of the “transportation costs component” of the CPI for All Urban Consumers
for the NY-NJ-PA metro area (“CPI-U Transportation”) between January 2019 and June 2022.31
Thus, contrary to the Minimum Pay Rule, and the February 2020 and March 2022 rate adjustments,
per mile rates would be adjusted based on an index other than CPI-W, and a different index than
that used to adjust per minute rates.
43. CPI-U Transportation is a particularly volatile index, driven in large part by wild
fluctuations in retail gasoline prices.32 In recent years, it has repeatedly risen above, and fallen
below, CPI-W by large margins.33
44. The per mile rate adjustment would also have been based on data from not just one
single month on one end, but from a single month on both ends: January 2019 and June 2022.34
So, like the per minute rates, per mile rates would have been adjusted based not on (i) twelve-
month periods as prescribed by the Minimum Pay Rule, as recommended by the Parrott & Reich
Studies, or as implemented by the February 2020 and March 2022 rate adjustments or
(ii) calendar-year averages, as the Commission had promised in February 2022.
30
First Proposed Rule at 3, Ex. 12.
31
Id. at 3, Ex. 12.
32
Tadelis § 2.3 ¶ 73, Ex. 2.
33
Tadelis § 2.2.1 ¶ 58 & Figure 3, Ex. 2.
34
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45. January 2019 and June 2022, the months the Commission had hand selected,
reflected the two-year low, and all time high, for CPI-U Transportation, and thus produced the
maximum rate increase possible: 34.04% in comparison to 2019 values.35
46. The First Proposed Rule would also have changed the procedure for future rate
adjustments. Effective February 2023, per mile and per minute rates would have been adjusted
yet again, based on the change in CPI-W between June 2022 and December 2022.36 So, contrary
to the Minimum Pay Rule, the Parrott & Reich Studies, the Commission’s February 2022
representations, and the February 2020 and March 2022 rate adjustments, the February 2023 rate
adjustment would come only four months since the last rate adjustment, and would be based on
the comparison of two single months’ worth of data.
47. Effective February 2024, the per mile and per minute rates would have been
adjusted based on the percentage change in CPI-W between (i) December 2022—a single month,
and thus contrary to the Minimum Pay Rule, the Parrott & Reich Studies, the Commission’s
February 2022 representations, and the February 2020 and March 2022 rate adjustments—and the
period from January to December 2023.37
48. And, for February 2025 and onward, adjustments to the per mile and per minute
rates would have been based on the “percentage change in the annual average” of the CPI-W.38
49. The elements of the First Proposed Rule, and in comparison to the Commission’s
prior rate adjustments, are summarized in the following table:
35
Tadelis Introduction ¶ 8, § 1.2.1 ¶ 37, Ex. 2; First Proposed Rule at 3, Ex. 12.
36
First Proposed Rule § 2(a)(4)(i), Ex. 12.
37
Id., Ex. 12.
38
Id. § 2(a)(4), Ex. 12.
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Effective as of date Per mile Per Index used by TLC Time period used in
minute % change calculation
February 2020 $1.103 $0.502
Dec-18 to Nov-19 average vs.
Dec-17 to Nov-18 average
previous rate
March 2022 $1.161 $0.529
average
previous rate
October 2022 $1.458 $0.570 Per mile: CPI-U Transportation June-22 vs. Jan-19
(Proposed)
% change over 25.61% 7.82%
previous rate Per minute: CPI-W June-22 vs. 2021 average
February 2023 TBD TBD
CPI-W Dec-22 vs. June-22
(Proposed)
February 2024 TBD TBD
(Proposed)
February 2025 TBD TBD 2024 average vs.
CPI-W
(Proposed) 2023 average
50. The Commission set a hearing on the First Proposed Rule for October 6, 2022,
exactly thirty days after the First Proposed Rule was proposed.39
E. The Commission Failed to Disclose the Information and Documents It Relied

On in Proposing the First Proposed Rule.
51. The First Proposed Rule’s statement of basis and purpose was just over one page
long.40 It offered few clues as to the information, documents, or considerations on which the
Commission had relied in crafting and proposing the First Proposed Rule, even though it was a
significant departure from its prior practice. Rather, in a cursory fashion, the Commission stated
that the First Proposed Rule was “[b]ased” on:
a. “TLC, driver, and industry experience with the implementation of the 2018
rules;”
b. “evidence,” “testimony,” and “written comments,” “received at the

May [24, 2022] hearing;”
c. “reviews of driver compensation and passenger fares;”
39
Id. at 1, Ex. 12.
40
Id. at 2-3, Ex. 12.
17
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d. “analysis of trip data;”
e. “changes in inflation as reflected in the Consumer Price Index (CPI) and

transportation cost component of that index;”
f. “industry and driver feedback;” and
g. “other considerations.”41
52. Uber sought to better understand—and meaningfully comment on—the First
Proposed Rule. So its counsel submitted requests to the Commission and the New York City
Department of Transportation under FOIL. Among other things, Uber’s counsel requested
documents and information related to the Commission’s decision to propose the First Proposed
Rule, including: (i) any data that was reviewed and analyzed; (ii) the process used for selecting
that data; (iii) the methodologies employed in reviewing and analyzing that data; (iv) the outputs
of those reviews and analyses; (v) the decision-making involved in crafting the First Proposed
Rule based on those outputs; and (vi) the various “considerations” that purportedly formed the
basis for the First Proposed Rule.42
53. The Commission and the Department acknowledged receipt of the FOIL requests,
but estimated that it would take at least 30 business days (or until November 9, 2022) and until
March 31, 2023, respectively, to comply.43 In other words, the Commission and Department
proposed to make documents available after the First Proposed Rule would have gone into effect
41
Id. at 2, Ex. 12.
42
See Letter from Karen Dunn, Paul, Weiss, Rifkind, Wharton & Garrison LLP, to N.Y.C. Taxi & Limousine
Comm’n (Sept. 27, 2022) (“September 27 TLC FOIL Request”), Ex. 13; Letter from Karen Dunn, Paul, Weiss,
Rifkind, Wharton & Garrison LLP, to N.Y.C. Dep’t of Transp. (Sept. 27, 2022) (“September 27 DOT FOIL
Request”), Ex.14.
43
See Letter from Karen Dunn, Paul, Weiss, Rifkind, Wharton & Garrison LLP, to N.Y.C Taxi & Limousine
Comm’n (Oct. 5, 2022) (“October TLC Follow-Up Letter”), Ex. 15; Letter from Karen Dunn, Paul, Weiss,
Rifkind, Wharton & Garrison LLP, to N.Y.C. Dep’t of Transp. (Oct. 5, 2022) (“October DOT Follow-Up
Letter”), Ex.16.
18
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on October 1, 2022. Indeed, in the Department’s case, documents would not have been made
available until after rates had already been adjusted twice under the First Proposed Rule—in
October 2022 and February 2023.
54. Uber’s counsel responded by letter on October 5, 2022, explaining that the
Commission’s and Department’s estimated time frames for making this critical information
available would prevent meaningful notice and comment on the First Proposed Rule.44 Uber’s
counsel asked that the requested information be provided immediately, and that implementation
of the First Proposed Rule be adjourned pending the release of that information.45 Neither the
Commission nor the Department has replied to or heeded either request.
55. As of the date of this Petition, neither the Commission nor the Department has
turned over a single responsive document pertaining to the First Proposed Rule.
F. Commenters Demonstrated the Numerous Flaws in the First Proposed Rule

During the Initial Comment Period and Offered Rational Alternatives.
56. Notwithstanding the Commission’s refusal to timely provide the public with
relevant information about the First Proposed Rule, commenters did their best to explain to the
Commission the many severe flaws inherent in the First Proposed Rule. Most of the issues
identified during the notice-and-comment period went unrectified in the subsequent revisions to
the rule that was ultimately promulgated and approved on November 18, 2022, and which is
currently set to take effect on December 19, 2022.
57. Uber submitted a comment for the Commission’s consideration on October 5,
2022.46 The comment highlighted for the Commission that the per mile and per minute rate
44
See October TLC Follow-Up Letter, Ex. 15; October DOT Follow-Up Letter, Ex. 16.
45
See October TLC Follow-Up Letter, Ex. 15; October DOT Follow-Up Letter, Ex. 16.
46
See generally Comment, Ex.6.
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adjustments were based on arbitrarily cherry-picked data. Using economic analysis performed by
Dr. Steven Tadelis, Professor of Economics and Sarin Chair in Leadership and Strategy at the Hass
School of Business at the University of California at Berkeley, Uber showed that the proposed per
mile and per minute rate adjustments were based on data that could not reliably measure changes
in inflation, and which cause a disproportionately large rate hike.47 This results-oriented
rulemaking, Uber argued, evidenced impermissible ultra vires action by the Commission.48 With
respect to the per mile rate adjustment in particular, Uber explained that using CPI-U
Transportation once and only once was arbitrary, and an economically unreasonable choice, as it
is a highly volatile index that would lock in temporarily high gasoline rates.49 And with respect to
per minute rates, because New York City minimum wages have not risen, the proposed
adjustments would be inconsistent with the purpose of per minute rates, which is to ensure that
Drivers earn incomes equivalent to New York City minimum wage workers.50 Uber also reiterated
its request that the Commission make available all information and documents on which it had
relied in crafting the First Proposed Rule, and to better describe the considerations on which the
First Proposed Rule was based.51 Uber asked that the Commission adjourn implementation of the
First Proposed Rule until that information was made available.52 Finally, Uber pointed out that
the Commission appeared not to have considered unintended consequences of its proposed
47
Comment at 9-14, Ex. 6; see Tadelis, Ex. 2.
48
Comment at 16, Ex. 6.
49
Id. at 11, Ex. 6.
50
Id. at 12, Ex. 6.
51
Id. at 17-18, Ex. 6.
52
Id. at 18, Ex. 6.
20
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rulemaking, including on Drivers, riders, and accessibility goals.53 Uber elaborated on these
comments at the Commission’s October 6, 2022, hearing.54
58. Lyft, the only other Service currently licensed by the Commission, submitted a
comment criticizing the First Proposed Rule’s adjustments to the per mile and per minute rates, as
well as changes to the Utilization Rate methodology.55 Lyft noted that “many aspects of the [First]
Proposed Rule are unclear, inconsistent, or unfounded, and would have detrimental effects on the
industry that are contrary to the stated purpose of the rules.”56 Lyft noted many of the same issues
that Uber had addressed. For instance, Lyft criticized the Commission’s “sudden change in
methodology” for the per mile rate as “particularly problematic” given it “picked two comparison
months that are historical outliers” and would “permanently lock in these artificially inflated
effects without any consideration for actual economic conditions.”57 Lyft also criticized the
internal inconsistencies in the adjustments to the per minute rate, use of individual months rather
than yearly averages, and the Commission’s failure to “provide[] any rationale or explanation for
its calculation methodology.”58 Lyft further explained that these increases “will inevitably lead to
increased prices” for riders, which in turn “will lead to a decrease in demand,” ultimately harming
Services, Drivers, and riders—“particularly those who live in the outer boroughs and rely on apps
for reliable transportation.”59
53
Id. at 20-22, Ex. 6.
54
See N.Y.C. Taxi & Limousine Comm’n, Public Hearing, Oct. 6, 2022 (“Oct. 6, 2022 Tr.”), Ex. 17.
55
See Lyft, Inc.’s Comments on the Proposed Amendments to the High-Volume For Hire Services Minimum
Driver Pay Regulations (“Lyft Comment”) (Oct. 5, 2022), Ex. 18.
56
Id. at 1, Ex. 18.
57
Id. at 2-3, Ex. 18.
58
Id. at 4-5, Ex. 18.
59
Id. at 5-6, Ex. 18.
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59. The Commission also heard from Associated Musicians of Greater New York,
American Federation of Musicians Local 802 (“Local 802”), the “largest union of professional
musicians of the world.”60 In its comment, Local 802 explained that its musician-members “are
often traveling to or from locations that are not conveniently located on mass transit lines, hauling
oversized instruments to and from gigs, and ending their work very late at night after train service
has become less reliable.”61 As a result, they “oftentimes . . . rely on for-hire vehicle services to
move around and ensure they are getting to jobs on time and efficiently.”62 The Commission’s
proposed Driver payment hike, Local 802 warned, “will make it nearly impossible for our
members to continue utilizing these services when we need them.”63 That would be especially
problematic during the holiday season, “one of the busiest times” for Local 802’s members, when
“grueling schedules combined with the change in weather makes” ride-share Services like Uber
“more useful.”64 Given the per mile and per minute rate increase instituted in March 2022, as well
as scheduled rate adjustments planned for early 2023, “another huge increase before the end of
this year is unnecessary and will hurt those who rely on these services to get them to their important
work and other duties every day.”65
60. TechNet, a bipartisan network of technology CEOs and senior executives, echoed
those sentiments. TechNet commented that the Commission’s proposed Driver payment increase
“would be a significant burden levied on New York consumers, many of whom rely on rideshare
60
Letter from Tino Gagliardi, President & Executive Director, Assoc. Musicians of Greater N.Y., Am. Fed’n of
Musicians Local 802, to N.Y.C Taxi & Limousine Comm’n, Off. of Legal Affairs (“American Federation of
Musicians Local 802 Letter”) (Oct. 4, 2022), Ex. 19.
61
Id., Ex. 19.
62
Id., Ex. 19.
63
Id., Ex. 19.
64
Id., Ex. 19.
65
Id., Ex. 19.
22
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as a transportation lifeline in areas that are unserved or underserved by public transit.”66
Rendering these services unaffordable, TechNet explained, “could leave these individuals without
transportation options.”67
61. Tech:NYC, a nonprofit member-based organization representing over
800 technology companies in New York, observed that New York City “continues to experience
unstable economic conditions, and multiple or unplanned increases in FHV driver pay and fares
per year could decrease demand for FHV rides, and in turn decrease drivers’ take home pay.” 68 It
also predicted that the “higher proposed increase of the per-mile rate . . . will have a larger impact
on longer rides and will penalize outer borough residents who may take longer rides to other
boroughs or into Manhattan.”69 In light of the “economic fluctuations that have taken place in
New York in 2022 and may continue in the following years,” and “in order to continue setting
steady FHV driver pay increases in future years and to moderate FHV fare increases that
passengers will experience,” Tech:NYC encouraged the Commission to continue adjusting per
mile and per minute rates pursuant to the Minimum Pay Rule.70
62. Commenters did more than identify problems for the Commission to solve. Rather,
they also proposed easily implemented solutions to those problems.
63. First, commenters encouraged the Commission to continue implementing
scheduled rate adjustments pursuant to the Minimum Pay Rule.71 That is, rates would be adjusted
66
Letter from Christopher Gilrein, Executive Director, Northeast, TechNet, to N.Y.C. Taxi & Limousine Comm’n
(Oct. 5, 2022), Ex. 20.
67
Id., Ex. 20.
68
Letter from Tech:NYC (“Tech:NYC Letter”) (Oct. 5, 2022) at 2, Ex. 21.
69
Id. at 2, Ex.21.
70
Id., Ex. 21.
71
See Comment at 12, 15, Ex. 6; Tech:NYC Letter at 2, Ex. 21.
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again in 2023, based on the change in the average CPI-W between January through December
2021 and January through December 2022.
64. Second, the Commission was presented with the alternative of implementing a
temporary fuel surcharge, as opposed to a permanent rate increase, in order to address historically
high gasoline prices.72 The Commission did not mention or otherwise address this alternative in
the Second Proposed Rule, the Challenged Rule, or any hearings it conducted on the rulemaking.
65. Third, it was proposed that the Commission adjust per mile rates based on the IRS’s
standard mileage rate for business travel (“IRS Mileage Rate”), such that the Commission would
raise or lower per mile rates by the same percentage as the IRS Mileage Rate rose or fell.73 The
IRS Mileage Rate is used to compute the deductible costs of operating an automobile for business
use in lieu of tracking actual costs, and is used as a benchmark by the federal government and
many businesses to reimburse their employees for mileage.74 It is based on an annual study of the
fixed and variable costs of operating an automobile (including gasoline, oil, depreciation,
insurance, repairs, tires, and maintenance).75 In the ordinary course, the IRS Mileage Rate is
adjusted once per year. But it can be, and has been, adjusted mid-year where necessary in light of
significant price changes.76 In June 2022, for example, the IRS increased the IRS Mileage Rate
72
Uber proposed a temporary fuel surcharge in its Comment on the First Proposed Rule, and noted that it was a
solution that the New York Transit Workers Alliance had proposed in March 2022. See Comment at 15 & n.49,
Ex. 6; N.Y. Taxi Workers Alliance, NYTWA Calls for Immediate Fuel Surcharge on All Uber, Lyft, Yellow and
Green Cab Trips (“N.Y. Taxi Workers Alliance Press Conference”) (Mar. 25, 2022),
https://www.nytwa.org/home/2022/3/25/nytwa-calls-for-immediate-fuel-surcharge-on-all-uber-lyft-yellow-and-
green-cab-trips, Ex. 22.
73
Burch Aff. ¶ 10. Uber presented this alternative in discussion with the Commission in mid-October, and made a
formal presentation in its Supplemental Comment on the Second Proposed Rule.
74
Professor Steve Tadelis et al., New York City’s High Volume For-Hire Vehicle Minimum Driver Pay Rule:
Economic Analysis of the Proposed Rule Amendment of November 9, 2022 (“Tadelis Supp.”) § 2.3.1 ¶ 51 (Nov.
14, 2022), Ex. 23.
75
Tadelis Supp. § 2.3.1 ¶ 53, Ex. 23.
76
Id. § 2.3.1 ¶ 51 (“[T]he IRS has made mid-year adjustments in the past, most recently in 2008, 2011, and
2022.”), Ex. 23.
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by 6.84% for the remainder of the year due to the temporary surge in gasoline prices.77 The
Commission did not mention or otherwise address this alternative in the Second Proposed Rule,
the Final Challenged, or any hearings it conducted on the rulemaking.
66. Fourth, the Commission was presented with another proposal by which it would,
in 2022, adjust per minute rates based on changes in the CPI-W, and adjust per mile rates based
on changes in a transportation cost index.78 Going forward, per minute rates would continue to be
adjusted based on changes in CPI-W, but per mile rates would only be adjusted if the percentage
change in CPI-W resulted in a higher per mile rate than was implemented in December 2022.79
This “freezes” the per mile rate, allowing CPI-W to “catch-up” to the steep price increases already
applied to the per mile rate.80 Under this alternative, the per mile and per minute rate adjustment
percentages would eventually become equal, as they were in all of the Commission’s prior
rulemakings.81
G. The Commission Slightly Modified the Proposed Rule Prior to Passage, but
Retained Its Outcome-Driven Approach and Critical Flaws, Including the
Use of a Cherry-Picked Volatile Index for One-Time Only and Cherry-
Picked Months of the Year
67. On November 9, 2022, the Commission proposed a revised draft of the First
Proposed Rule (the “Second Proposed Rule”), on which it scheduled a vote in fewer than four
business days’ time.82
77
Id. § 2.3.1 ¶¶ 51-52, Ex. 23.
78
Burch Aff. ¶ 13; Supplemental Comments of Uber USA, LLC and Its Affiliates, Amendments to Minimum
Driver Payment Rules for HVFHS (“Supp. Comment”) (November 14, 2022) at 9-10, Ex. 24; Tadelis Supp.
§ 2.3.2 ¶ 57, Ex. 23.
79
Burch Aff. ¶ 13; Tadelis Supp. Introduction ¶ 26, Ex. 23.
80
Tadelis Supp. Introduction ¶ 26, Ex. 23.
81
Supp. Comment at 9-10, Ex. 24; Tadelis Supp. § 2.3.2 ¶ ¶ 57-58, Ex. 23.
82
See generally N.Y.C. Taxi & Limousine Comm’n, Notice of Promulgation, Statement of Basis and Purpose of
Rules, Amendments to High-Volume For-Hire Service, Nov. 9, 2022 (“Second Proposed Rule”), Ex. 25.
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68. The Second Proposed Rule was also outcome-driven and not data driven, with the
methods of calculation and periods of data selected based on the outcomes they produced and not
because they fairly and accurately reflected inflation.
69. Per mile rates would rise 16.11% over the rates originally implemented in March
2022, based on the percentage change in CPI-U Transportation between (i) January through
December 2018 and (ii) April through September 2022.83
70. Per minute rates would rise 7.18% over the rates set in March 2022, based on the
percentage change in CPI-W between (i) January through December 2021 and (ii) the single month
of September 2022.84
71. Effective March 1, 2023—fewer than three months later—per mile and per minute
rates would be adjusted yet again, this time both according to the percentage change in CPI-W
between (i) the single month of September 2022 and (ii) the single month of December 2022.85
72. Effective March 1, 2024, per mile and per minute rates would be adjusted based on
the percentage change in CPI-W between (i) the single month of December 2022 and (ii) the
average of January through December 2023.86
73. Effective beginning March 1, 2025, and continuing each calendar year thereafter,
per mile and per minute rates would be adjusted based on the percentage change in CPI-W between
(i) the annual average for the prior calendar year and (ii) the annual average for the year before the
prior calendar year, but only if that calculation yields a “positive percentage change.”87
83
Id. at 1-2, Ex. 25; Tadelis Supp. Introduction ¶ 10 Table 1.
84
Second Proposed Rule at 1, Ex. 25.
85
Id. § 2(a)(4)(i), Ex. 25.
86
Id., Ex. 25.
87
Id. § 2(a)(4), Ex. 25.
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74. The changes, as well as those from prior rate adjustments, are summarized in the
following table:
Effective as of date Per Per Index used by TLC Time period used in %
mile minute change calculation
February 2020 $1.103 $0.502
Dec-18 to Nov-19 average vs.
Dec-17 to Nov-18 average
previous rate
March 2022 $1.161 $0.529
average
previous rate
December 2022 $1.348 $0.567 Sep-22 vs. 2021 average
Per minute: CPI-W
(Proposed)
% change over 16.11% 7.18% Apr-Sep 22 average vs.
previous rate Per mile: CPI-U Transportation
2018 average
March 2023 TBD TBD
CPI-W Dec-22 vs. Sep-22
(Proposed)
March 2024 TBD TBD
(Proposed)
March 2025 TBD TBD 2024 average vs.
CPI-W
(Proposed) 2023 average
75. The Second Proposed Rule’s statement of basis and purpose was nearly identical
to that of the First Proposed Rule; the Commission had not responded to, or addressed, a single
comment submitted in the prior nine weeks.88
76. Despite having been given fewer than four business days to react to the Second
Proposed Rule, commenters clearly explained to the Commission that the Second Proposed Rule
had done little to rectify the many issues plaguing the First Proposed Rule. Uber, for example,
submitted a supplemental comment on November 14, 2022.89
77. First, commenters showed that there is no rational basis for adjusting per mile and
per minute rates only months after they were recently adjusted (March 2022) and just months
88
See Redline comparing the First Proposed Rule to the Second Proposed Rule, Ex. 26
89
See Supp. Comment, Ex. 24. Lyft submitted a supplemental comment expressing similar issues with the
Second Proposed Rule. See Lyft, Inc.’s Supplemental Comment on the Proposed Amendments to the High-
Volume For Hire Services Minimum Driver Pay Regulations (“Lyft Supp. Comment”) (Nov. 14, 2022), Ex. 27.
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before they were to be adjusted again (March 2023), in contrast to the Commission’s past (and
future) practice of adjusting rates once per year (at most).90
78. Second, commenters demonstrated that CPI-U Transportation is a particularly
volatile index, and that its one-time use will lock in high gasoline prices, thus causing windfall
expense payment when gasoline prices decline. They also showed that the per mile rate adjustment
was based on cherry-picked time periods selected to achieve the Commission’s policy goal of
maximizing Driver payments.91
79. Third, commenters pointed out that the Commission failed to consider, without
explanation or justification, multiple reasonable alternatives that would rectify some of these
critical issues and address the goal of making appropriate and economically justified inflation
adjustments.92
80. Fourth, commenters explained that the December 2022 per minute rate adjustment
is inappropriately based on data from a single month—far too short a time period to reliably
calculate the change in inflation over time—and cannot be justified because the minimum wages
it was designed to approximate have not risen.93
81. Fifth, commenters noted flaws in the Commission’s approach to future rulemaking,
as the 2023 and 2024 rate adjustments are based on time periods that are too short to reliably
measure changes in inflation over time, and beginning in 2025, the Commission has committed to
only increase rates regardless of actual changes in inflation.94
90
Supp. Comment at 3, 5, Ex. 24.
91
Id. at 3, 5-6, Ex. 24.
92
Id. at 3-4, 8-10, Ex. 24.
93
Id. at 4, 6-7, Ex. 24.
94
Id. at 4, 12-14, Ex. 24.
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82. Sixth, commenters noted that the Commission has impeded the ability of
commenters to understand the Commission’s rulemaking process by failing to substantively
respond to multiple requests for information related to the First Proposed Rule.95 They reiterated
the request that the Commission hold off on implementing the Second Proposed Rule until after
this information could be made available.
83. Finally, commenters identified multiple errors (including potential typographical
errors) in the Second Proposed Rule, some of which could have a profound impact on its
meaning.96
H. The Commission Approved the Second Proposed Rule Without Addressing

or Considering the Numerous Flaws that Had Been Explained To It.
84. At the November 15, 2022, hearing, the Commission approved a final version of
the rule, which was posted to the City Record on November 18, 2022.97
85. At the hearing, the Commission announced that “the final version of the proposed
rule [had been] posted on our website and circulated to the commissioners along with the hearing
transcript and all written comments that were received.”98 No other mention was made of any of
the comments submitted in the preceding months, or any of the alternatives proposed by
commenters.
86. Indeed, the Challenged Rule—including the statement of basis and purpose—was
virtually identical to the Second Proposed Rule that had been circulated to commenters on
95
Id. at 4, 14-15, Ex. 24.
96
Id. at 15-16, Ex. 24.
97
See N.Y.C. Taxi & Limousine Comm’n, Notice of Promulgation, Statement of Basis and Purpose of Rules,
Amendments to High-Volume For-Hire Service, Nov. 15, 2022 (“Challenged Rule”), Ex. 28.
98
See N.Y.C. Taxi & Limousine Comm’n, Public Hearing, Nov. 15, 2022 (“Nov. 15, 2022 Tr.”) at 25:5-10, Ex.
29. It is unclear whether the Commission meant that any comments received had been posted to the
Commission’s website in advance of the hearing. In any event, none were. See infra ¶¶ 89-91.
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November 9, 2022.99 The Commission had not responded to a single comment submitted with
respect to the Second Proposed Rule (or, much less, the First Proposed Rule). Rather, the
Commission was in such an apparent rush that it had not even fixed the errors (including typos)
pointed out during the notice and comment period.
I. The Commission Failed to Disclose the Information and Documents It Relied

on in Proposing the Challenged Rule.
87. On November 22, 2022, Uber’s counsel submitted FOIL requests to the
Commission and the Department for the same categories of information and documents with
respect to the Challenged Rule that the Commission had purportedly relied upon in promulgating
the First Proposed Rule.100
88. On December 1, 2022, the Commission and the Department acknowledged receipt
of those requests, and estimated that it would take until January 13, 2023, and May 23, 2023,
respectively, to comply with them. Later that same day, Uber’s counsel sent follow-up letters to
each agency, explaining that the requested materials are necessary for the public to understand,
prior to the Challenged Rule’s effective date, the Commission’s rulemaking process, and the
Commission’s assessment of the Challenged Rule’s likely and intended effects.101 By setting
estimated compliance dates after the Challenged Rule’s December 19, 2022, effective date, the
99
See Redline comparing the to the Second Proposed Rule to the Challenged Rule, Ex. 30.
100
Comm’n (Nov. 22, 2022) (“November TLC FOIL Request”), Ex. 31; Letter from Karen Dunn, Paul, Weiss,
Rifkind, Wharton & Garrison LLP, to N.Y.C. Dep’t of Transp. (Nov. 22, 2022) (“November DOT FOIL
Request”), Ex. 32.
101
Comm’n (Dec. 1, 2022) (“December TLC Follow-Up”), Ex. 33; Letter from Karen Dunn, Paul, Weiss, Rifkind,
Wharton & Garrison, to New York City Dep’t of Transp. (Dec. 1, 2022) (“December DOT Follow-Up”), Ex.
34.
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letter explained, the Commission and the Department had prevented the public from doing so.102
Accordingly, Uber’s counsel requested that the requested materials be provided immediately.103
To date, neither the Commission nor the Department has acknowledged or responded to this
correspondence, much less made available a single responsive document.
89. Uber’s counsel also sought in vain to obtain all written comments that had been
submitted to the Commission during the rulemaking process. According to the First Proposed
Rule, “a few days after the [October 6, 2022] hearing, copies of all comments submitted online,
copies of all written comments, and a summary of oral comments concerning the proposed rule
[would] be available to the public at the Office of Legal Affairs.”104 Accordingly, on
November 22, 2022, Uber’s counsel sent a representative to the Office of Legal Affairs to retrieve
any comments the Commission had received in connection with the May 24, 2022, hearing, the
First Proposed Rule, and/or the Second Proposed Rule. But despite the fact that the request came
nearly “a [month] after” the October 6, 2022, hearing, the representative was turned away, and
instructed to submit a FOIL request. Consistent with those instructions, Uber’s counsel submitted
a FOIL request for those materials the very same day.105
90. On December 1, 2022, the Commission acknowledged receipt of Uber’s counsel’s
request for written comments, and estimated that it would take until January 13, 2022, to comply—
far longer than the “few days” promised by the First Proposed Rule. Uber’s counsel promptly
102
See December TLC Follow-Up Letter, Ex. 33; see also December DOT Follow-Up Letter, Ex. 34.
103
Id., Ex. 34.
104
105
Comm’n (Nov. 22, 2022) (“November TLC FOIL Request for Comments”), Ex. 35.
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responded, sending a follow-up letter to the Commission later that day.106 Uber’s counsel
explained that, like the other records requested in connection with the Final Rule, it was essential
that any comments submitted during the rulemaking process be made available, to enable the
public to understand the Challenged Rule.107 To date, the Commission has not acknowledged or
responded to this correspondence, much less made available a single responsive document.
91. Finally, on November 22, 2022, Uber’s counsel followed up one more time on the
request, made in late September 2022, for documents underlying the First Proposed Rule.108 To
date, and despite the Commission’s estimate of a November 9, 2022, production, neither agency
has produced a single responsive document in response to this or any other request.
J. Petitioner and Other New Yorkers Who Need Reliable and Affordable
Transportation Will Suffer Severe and Irreparable Harm Should the
Challenged Rule Go Into Effect.
92. The Commission’s mandatory driver pay rate hikes, if allowed to take effect
starting on December 19, 2022, would require Uber to take one of two actions. Each action would
result in irreparable harm to Uber, and in harm to the public.
93. First, Uber could pay the increased per mile and per minute rates to Drivers but not
raise prices on riders for the same trips, and thus receive less on every trip. Dobbs Aff. ¶¶ 3, 13-
15. This would force Uber to absorb all of the increased payouts itself, resulting in between $21
and $23 million in increased payments per month. Id. ¶ 8. As described below, these amounts are
not recoverable from the Commission, nor otherwise.
106
See December TLC Follow-Up Letter, Ex. 33.
107
Id., Ex. 33.
108
Comm’n (Nov. 22, 2022) (“November TLC Follow-Up”), Ex. 36; Letter from Karen Dunn, Paul, Weiss,
Rifkind, Wharton & Garrison, to New York City Dep’t of Transp. (Nov. 22, 2022) (“November DOT Follow-
Up”), Ex. 37.
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94. Second, Uber could raise prices on riders to partially or completely offset the
increased payments it has to make to Drivers. Id. ¶¶ 3, 16. This would cause two sorts of
irreparable losses to Uber. Id. ¶ 16. As prices increase, Uber risks a likely decrease in demand,
thus depressing trip volume (and thus revenue to Uber). Id. ¶ 20. Moreover, Uber risks losing
unquantifiable rider goodwill and customer base, and the public interest would be impaired by this
fare hike. Id. ¶¶ 24-25. Raising prices would hit riders at a particularly sensitive time: immediately
before the holiday season, and in the midst of a potential recession and challenging economic
circumstances. Id. A fare hike would alienate a critical customer population right around the
holidays, and cause a long lasting loss of goodwill from New York City residents, as well as the
millions of visitors to New York during the holiday season. Id.
95. Moreover, Uber (and the public) will experience irreparable harm if the rule goes
into effect, because the lack of meaningful notice of comment will never be remedied at that point.
STANDARD OF REVIEW
96. An Article 78 proceeding raises for review “whether a determination was made in
violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or
an abuse of discretion.” N.Y. C.P.L.R. 7803(3).
97. “Administrative rules are not judicially reviewed pro forma in a vacuum, but are
scrutinized for genuine reasonableness and rationality in the specific context.” N.Y. State Ass’n of
Counties v. Axelrod, 78 N.Y.2d 158, 166 (1991). An agency’s action is arbitrary and capricious
where it lacks a “sound basis in reason” or a “rational basis” in the record. Pell v. Bd. of Educ.,
34 N.Y.2d 222, 231 (1974) (quoting Colton v. Berman, 21 N.Y.2d 322, 329 (1967)).
98. An administrative agency’s action may be set aside where, among other things, it
is “not based on a rational, documented, empirical determination,” where it fails to consider an
important aspect of the problem, or where “the calculations from which [it is] derived [are]
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unreasonable.” N.Y. State Ass’n of Counties, 78 N.Y.2d at 166, 168 (alterations in original)
(citations omitted); see Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29, 43, 52 (1983); NRDC v. EPA, 808 F.3d 556, 569, 574 (2d Cir. 2015).109
99. An agency’s action may also be found arbitrary and capricious where the agency
reverses an earlier policy without explaining its reasons for doing so. See, e.g., Richardson v.
Comm’r of N.Y.C. Dep’t of Soc. Servs., 88 N.Y.2d 35, 39 (1996); Matter of Charles A. Field
Delivery Serv., Inc., 66 N.Y.2d 516, 520 (1985); Anonymous v. Berlin, 911 N.Y.S.2d 797, 801-02
(Sup. Ct. 2010).
100. In addition, agency actions that exceed the authority granted by a lawmaker cannot
stand. N.Y. State Superfund Coal., Inc. v. N.Y. State Dep’t of Envtl. Conservation, 18 N.Y.3d 289,
294-95 (2011); see also Tze Chun Liao v. N.Y. State Banking Dep’t, 74 N.Y.2d 505, 510 (1989)
(“An agency cannot create rules, through its own interstitial declaration, that were not
contemplated or authorized by the Legislature and thus, in effect, empower themselves to rewrite
or add substantially to the administrative charter itself.”).
101. Courts also may annul agency actions that fail to meet the procedural specifications
set out under CAPA, which requires all local rules to go through a notice-and-comment process to
be valid. See Council of N.Y.C. v. Dep’t of Homeless Servs. of N.Y.C., 22 N.Y.3d 150, 157-58
(2013); see also Singh v. Taxi & Limousine Comm’n of N.Y.C., 282 A.D.2d 368, 368 (1st Dep’t
2001).
109
New York Courts have recognized that the City’s “public policy, as set forth in CAPA . . . reflects” basic
principles of administrative law “articulated at both the federal and state levels, in respectively, the federal
Administrative Procedure Act [and] New York State’s Administrative Procedure Act.” Street Vendor Project,
811 N.Y.S.2d at 561. Thus, New York courts look to federal decisions applying the federal Administrative
Procedure Act (the “APA”) in construing CAPA’s strictures. See, e.g., id. (relying on federal case law
regarding APA to apply principles of administrative law to CAPA).
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102. It is “the settled rule that judicial review of an administrative determination is
limited to the grounds invoked by the agency.” Scherbyn v. Wayne-Finger Lakes Bd. of Coop.
Educ. Servs., 77 N.Y.2d 753, 758 (1991). Likewise, “[i]f the reasons an agency relies on do not
reasonably support its determination, the administrative order must be overturned and it cannot be
affirmed on an alternative ground that would have been adequate if cited by the agency.” Nat’l
Fuel Gas Distrib. Corp. v. Pub. Serv. Comm’n of N.Y., 16 N.Y.3d 360, 368 (2011).
ARGUMENT
I. The Challenged Rule Is Arbitrary and Capricious.
103. In promulgating a rule, an agency must “examine the relevant data and articulate a
satisfactory explanation for its action including a rational connection between the facts found and
the choice made.” State Farm, 463 U.S. at 43; Brunswick Hosp. Ctr., Inc. v. Daines, 26 Misc. 3d
1225(A), at *4 (N.Y. Sup. Ct. Feb. 22, 2010). Accordingly, an agency is not permitted to
“disregard the facts,” Trump on Ocean, LLC v. Cortez-Vasquez, 76 A.D.3d 1080, 1085, 1087 (2d
Dep’t 2010), or “ignore the evidence and merely rely upon the [agency’s] general authority to
administer” rules, Application of Gorham, 86 A.D.2d 505, 506 (1st Dep’t 1982) (Fein, J.,
concurring).
104. The Challenged Rule violates those tents of reasoned decision-making. First, the
per mile and per minute rate adjustment effective December 2022 represents a stark departure from
the Commission’s prior practices, and assurances of future practice, for which the Challenged Rule
offers no explanation, reasoned or otherwise. Second, the December 2022 per mile and per minute
rate adjustments are based on cherry-picked data yielding a substantial rate increase, and from too
short a time period to reliably measure changes in inflation. Third, the December 2022 per mile
rate adjustment is based on the one-time use of a volatile pricing index that is guaranteed to lock
in temporarily high gasoline prices are arbitrarily locked in to future per mile rates. Fourth, the
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Commission arbitrarily refused to engage with, or consider, multiple preferable alternatives that
would have solved the problems associated with the Commission’s per mile price index and data
selection. Fifth, the December 2022 per minute rate adjustment has become untethered to the
Commission’s purpose in per minute ratemaking—approximating the wages of similarly situated
New York City employees. Sixth, the Challenged Rule’s commitment to only upwardly adjust per
mile and per minute rates beginning in 2025 arbitrarily ignores relevant pricing data.
A. The Challenged Rule Is Arbitrary and Capricious Because It Deviates from

Past Precedent Without Explanation.
105. The Commission had a reasonable, established method for determining per mile
and per minute rate adjustments, as set out in the Minimum Pay Rule. Both the per mile and per
minute rates would be adjusted, on an annual basis, based on the twelve-month percentage change
in CPI-W.110 The Challenged Rule jettisons that course by (i) implementing three rate changes in
the course of a year; (ii) basing those changes on data from single months or six-month averages
as opposed to twelve-month periods; and (iii) using varying indices for the per mile rate
adjustments. The tenets of administrative law demand a reasoned explanation for such a striking
change of course—an explanation the Challenged Rule utterly fails to provide.
106. When an administrative agency “determines to alter its prior stated course, it must
set forth the reasons for doing so.” Charles A. Field Delivery Serv., 66 N.Y.2d at 520; see Am.
Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017) (“A central principle
of administrative law is that, when an agency decides to depart from decades-long practices and
official policies, the agency must at a minimum acknowledge the change and offer a reasoned
explanation for it.”). This requirement serves an important purpose: it ensures that a reviewing
110
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court can “determine whether the agency has changed its prior interpretation of the law for valid
reasons, or has simply overlooked or ignored its prior decision.” Charles A. Field Delivery Serv.,
66 N.Y.2d at 520. The failure to provide a justification for the change “requires reversal on the
law as arbitrary,” even if there is substantial evidence to support the agency’s determination. Id.;
see, e.g., Metro. Taxicab Bd. of Trade v. N.Y.C. Taxi & Limousine Comm’n, 18 N.Y.3d 329, 333
(2011) (invalidating rule where agency did not present “any justification with any support in the
record for its decision” which constituted a change from prior policy).
107. Pursuant to the Minimum Pay Rule, “[b]eginning January 1, 2020 and continuing
each calendar year thereafter,” the per mile and per minute rates were to “be adjusted using the
12-month Percentage Change in the Consumer Price Index for Urban Wage Earners and Clerical
Workers for the NY-NJ-PA metro area,” i.e., CPI-W.111
108. Consistent with that approach, the Commission’s February 2020 and March 2022
rate adjustments both:
a. Based the per mile and per minute rates on changes in the same price index (i.e.,
CPI-W);
b. Based the per mile and per minute rates on price index changes over the same
twelve-month periods (i.e., December 2018 through November 2019 twelve-month
average compared against December 2017 through November 2019 twelve-month
average in February 2020; 2021 annual average compared against the 2019 annual
average in March 2022);
c. Based the per mile and per minute rates on changes in a price index over two
twelve-month periods; and
111
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d. Were instituted at least one year after the preceding rates had been set.
109. At the time of the March 2022 rate adjustment, the Commission represented that it
would continue to proceed as before in any subsequent rate adjustments;
[For] all CPI adjustments going forward, we will use the calendar year (January
through December) averages published by the US Department of Labor for
calculating CPI adjustments to the pay rates.112
110. Yet the Commission has now capriciously abandoned its practice and its word by
deciding to implement vastly different methodologies for each of the rate adjustments under the
Challenged Rule by:
a. Using less than twelve-month averages for the 2022, 2023, and 2024 rate
adjustments;
b. Using different time periods for the December 2022 per mile and per minute rate
adjustments;
c. Using different price indices for the December 2022 per mile and per minute rate
adjustments;
d. Implementing three rate adjustments within a twelve-month span; and
e. Adjusting per mile and per minute rates only upward beginning in 2025.
111. Implementing a mid-year rate adjustment, while hewing as close as possible to past
practice, would mean that the Commission would base both the per mile and per minute rate
adjustments on the change in the same index, CPI-W, between (i) the end period that was used to
measure inflationary changes for purposes of the March 2022 rate adjustment, i.e., January through
December 2021 and (ii) the period representing all time since then and until the Challenged Rule
112
Email from Ryan Wanttaja, N.Y.C. Taxi & Limousine Comm’n, to Jason Burch, Uber, et al. (Feb. 11, 2022),
Ex. 10.
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was approved, i.e., from January through September 2022. That would yield an increase of just
5.94% for both per mile and per minute rates, materially lower than an 7.18% increase for the per
minute rate—and much lower than the 16.11% for the per mile rate (in comparison to 2019 rates)
that the Challenged Rule calls for.
Adjustment Index Start of time End of % Change

period time period Relative to
Mar-22 Rates
Alternative
Mid-Year Jan-Sep 2022 average 5.94%
Adjustment
CPI-W 2021 average
Challenged Rule’s
Per Minute Sep 2022 7.18%
Adjustment
Challenged Rule’s
CPI-U
Per Mile 2018 average Apr-Sep 2022 average 16.11%
Transportation
Adjustment
112. Despite this significant difference, at no point in the rulemaking process has the
Commission acknowledged its departure from its previously established rule of calculating annual
per mile and per minute rate adjustments based on year-over-year averages in CPI-W, much less
offered a “reasoned explanation” for doing so. And it is not for lack of opportunity. The
Commission could have explicated on its course change: (i) at the March 24, 2022, hearing; (ii) in
the First Proposed Rule, dated September 6, 2022; (iii) at the October 6, 2022, hearing; (iv) in the
Second Proposed Rule, dated November 9, 2022; (v) at the November 15, 2022, hearing; or (vi) in
the Challenged Rule, dated November 18, 2022. The Commission’s failure to provide a reasoned
explanation for its deviation from past practice is sufficient on its own to warrant vacatur. See
Metro. Taxicab Bd. of Trade, 18 N.Y.3d at 333-34.
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B. The December 2022 Rate Adjustment Is Based on an Arbitrarily Cherry-

Picked Set of Months Designed to Yield a Substantial Rate Increase.
113. Even if the Commission had explained its reasons for abandoning past practice, its
new methodology for measuring inflation would be impermissibly arbitrary. The December 2022
per mile rate adjustments are based varying periods of length, mixed and matched without rhyme
or reason. First, the December 2022 per mile rate adjustment is based on data from the six-month
period April through September 2022, to the exclusion of relevant data from January, February,
and March 2022—i.e., data that was not captured by the Commission’s March 2022 rate hike or
the December 2022 rate hike. Second, the December 2022 per minute rate adjustment is based on
data from September 2022, to the exclusion of relevant data from January, February, March, April,
May, June, July, and August 2022. That is economically unreasonable, and arbitrary.
114. As Professor Tadelis explains, it is economically unjustifiable to base rate
adjustments on data from short time periods, especially where additional relevant data is at a
regulator’s disposal. Such short time periods, Professor Tadelis explains, are an unreliable means
for measuring inflationary changes, and are heavily influenced by outlying data.113 That is
particularly so under current circumstances when inflation is volatile and governments and central
banks are taking actions that can have a significant impact on price changes going forward, which
appear to be working. Even the Commission, by only implementing year-over-year data
comparisons in the past, and intending to return to such practice going forward, tacitly concedes
that full-year data comparisons are generally preferable. The original study on which the
Minimum Pay Rule is based also endorsed a methodology using full-year data.114
113
114
Parrott & Reich 2018 at 37, Ex. 4.
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115. Adjustments for inflation should be ministerial and objective in nature, reflecting
the consistent use of the full scope of relevant data points, and without any particular outcome
predetermined. The Challenged Rule bulldozes right over these fundamental economic principles,
and arbitrarily ignores relevant data. See Trump on Ocean, 76 A.D.3d at 1080, 1085, 1087;
Gorham, 86 A.D.2d at 506.
116. First, the Challenged Rule bases the December 2022 per mile rate adjustment on
data from only six months, April through September 2022, but ignores available CPI-U
Transportation data from January 2022, February 2022, and March 2022 (as well as October
2022).115 Indeed, because the March 2022 per mile rate adjustment was based on a comparison of
data from between January through December of 2019 and January through December of 2021, it
makes the most sense for any December 2022 adjustment to be based on a comparison between
the average of (i) January through December of 2021, the end period on which the March 2022
rates were based, and (ii) the remaining time leading up to the approval of the Challenged Rule, or
January through September (or October) 2022.116
115
Challenged Rule at 2, Ex.28; Tadelis Supp. Introduction ¶ 17, Ex. 23.
116
Tadelis Supp. § 2.1 ¶ 34, Ex. 23.
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117. This has major consequences. As Professor Tadelis calculates, the Commission’s
reliance on April through September 2022 data causes per mile rates to rise by 23.93% against
2019 rates, while using data from January through September 2022 would produce only a 20.71%
increase.117 The calculations are similar if October 2022 is included as well. Moreover, even
using the single month of September 2022, as the Commission proposes to do for a December
2022 per minute rate adjustment (as economically unjustified and improper as it may be), would
lead to an increase of only 22% against 2019 rates.118
118. The Commission makes the same critical error with respect to per minute rates. If
the Commission were to use the relevant CPI-W data at its disposal, the average of January through
117
Id. § 2.1 ¶ 38, Ex. 23.
118
Id. at Table 3, Ex. 23.
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September 2022, per minute rates would rise by 5.94% in comparison to March 2022 rates.119 The
results with October 2022 included would be similar. Relying on only the month of September
2022, by contrast, causes the per minute rate to rise by 7.18% in comparison to March 2022
rates.120
119. Nor does the Commission explain why it is necessary to rely only on data from
September 2022, for purposes of the per minute rate adjustment, when the Commission feels
comfortable utilizing data from April, May, June, July, August, and September 2022 for purposes
of setting per mile rates. The results are striking, particularly when compared against the initial
February 2019 rates. For example, the Commission landed on a 23.93% per mile rate adjustment
119
Id. § 2.1 ¶ 38 & Table 4, Ex. 23.
120
Id., Ex. 23.
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(comparing the proposed rates against the original February 2019 rates) by ignoring relevant data.
Rates would only have risen by 20.71% had the Commission accounted for all relevant data.
Rate Index Applied Start of End of % Change Relative

to time period time period to Applied Rates
$1.327
Sep 2022
(22.00%)
Per CPI-U Feb 2019 2018 Apr-Sep 2022 $1.348
Mile Transportation Rates average average (23.93%)
Jan-Sep 2022 $1.313
average (20.71%)
$0.567
Sep 2022
(7.18%)
Per Mar 2022 2021 Apr-Sep 2022 $0.566
CPI-W
Minute Rates average average (7.02%)
Jan-Sep 2022 $0.560
average (5.94%)
C. The December 2022 Per Mile Rate Is Based on an Arbitrarily Selected

Volatile One-Time-Use-Only Price Index Which Spiked During the Relevant
Time Period.
120. In prior years, the Commission has consistently based both the per mile and per
minute rate increases on changes in the CPI-W. And, according to the Challenged Rule, the
Commission will do just that in 2025 and onward. But for this single proposed rate increase, in
December 2022, the Commission proposes to base only per mile rate increases not just on a
different index, CPI-U versus CPI-W, but a sub-basket of that index, CPI-U Transportation. That
is arbitrary and capricious. See Pell, 34 N.Y.2d at 231.
121. CPI-U-Transportation is an indisputably poor choice for the task of measuring
Driver expenses—as evidenced by the Commission’s decision to use it once and only once, and
Parrott & Reich’s decision not to recommend CPI-U Transportation in 2018.
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122. First, CPI-U Transportation is a very volatile index, driven in significant part by
large fluctuations in gasoline prices.121 As a recent example, CPI-U Transportation rose by over
6% in June 2022 before falling back to prior levels within two months.122 For that reason, CPI-U-
Transportation has repeatedly both risen above and fallen below CPI-W by large margins in recent
years.123
123. Second, the Challenged Rule’s one-time-use of CPI-U Transportation, before
switching back to CPI-W for all subsequent rate increases, is especially problematic. CPI-U
Transportation spiked between April and September of 2022.124 By basing the December 2022
per mile rate adjustment on those high values, and then switching to a different price index, CPI-
W, for subsequent rate adjustments, the Challenged Rule does not allow for adjustments to be
made to account for expected falls in the CPI-U Transportation index, as it is currently
experiencing, and as are inherent in such a volatile index.125 In other words, the Challenged Rule
“locks in” spiked rates based on temporarily exaggerated gasoline prices, but then does not allow
those rates to fall once gasoline prices recede, as they have already begun doing.126
124. The result is that the Commission has arbitrarily selected a price index that achieves
an inflated rate increase. While examining the change in average CPI-U Transportation between
January through December 2018 and April through September 2022 yields a 23.93% rate
121
Id. § 2.3 ¶ 73, Ex. 23.
122
Id. § 2.3 ¶ 36 & Figure 1, Ex. 23.
123
Tadelis § 2.3 ¶ 74 & Figure 6, Ex. 2.
124
Id. § 2.3 Figure 6, Ex. 2.
125
Id. § 2.3 ¶ 73, Ex. 2; Challenged Rule § 2(a)(1), (4), Ex. 28.
126
Tadelis § 2.3 ¶ 73, Ex. 2.
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adjustment (in comparison to February 2019 rates), measuring the change in CPI-W over the exact
same time period would result in only a 14.44% increase.127
125. The following table reflects the impact of the Commission’s cherry picking of data.
Index Applied to Start of time End of % Change

period time period
Apr-Sep 2022
CPI-W 14.44%
Feb 2019 average
2018 average
CPI-U Rates Apr-Sep 2022
23.93%
Transportation average
D. The Commission Arbitrarily Refused to Consider Multiple Preferable

Alternatives to the Challenged Rule’s December 2022 Per Mile Rate
Adjustments.
126. The Commission was presented—yet arbitrarily refused to consider—multiple
viable alternatives that would have rectified many of the issues inherent with the Commission’s
proposed per mile rate adjustment.
127. “It is well settled that an agency has a duty to consider reasonable alternatives to its
chosen policy and to give a reasoned explanation for its rejection of such alternatives.” City of
Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1169 (D.C. Cir. 1987) (remanding rule for failure
to consider alternatives presented by public commenters); see, e.g., Dist. Hosp. Partners, L.P. v.
Burwell, 786 F.3d 46, 59-60 (D.C. Cir. 2015) (remanding rule where the agency “fail[ed] to
consider significant and viable and obvious alternatives”). It is, in fact, the very “purpose of a
basis and purpose statement in proposed rulemaking, ‘at least in part, to respond in a reasoned
manner to the comments received, to explain how the agency resolved any significant problems
raised by the comments, and to show how that resolution led the agency to the ultimate rule.’”
127
Tadelis Supp. § 1 ¶ 29, Ex. 23; U.S. Bureau of Labor Statistics, New York-New Jersey Information Office,
Consumer Price Index – New York-Newark-Jersey City, NY-NJ-PA, available at
https://www.bls.gov/regions/new-york-new-jersey/news-release/consumerpriceindex_newyorkarea.htm, Ex. 38.
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Street Vendor Project v. City of New York, 811 N.Y.S.2d 555, 561 (Sup. Ct. 2005) (quoting
Independent U.S. Tankers Owners Comm. v. Lewis, 690 F.2d 908, 919 (D.C. Cir. 1982)). The
Commission’s failure to consider or even address multiple preferable alternatives means the
Challenged Rule must be reversed. See Yakima Valley Cablevision, Inc. v. FCC, 794 F.2d 737,
746 n.36 (D.C. Cir. 1986) (“[T]he failure of an agency to consider obvious alternatives has led
uniformly to reversal.”).
128. First, commenters proposed that the Commission stay true to prior practice, and
adjust the per mile and per minute rates consistent with the Minimum Pay Rule, the February 2020
and March 2022 rate adjustments, and the Commission’s February 2022 rate adjustment. That is,
the Commission should wait until 2023, and adjust both per mile and per minute rates based on
the average change in CPI-W from the two preceding twelve-month periods: January through
December 2021 and January through December 2022.128 Doing so would cure all of the
Challenged Rule’s ills. No longer would the Commission be deviating substantially from past
practice (without explanation). No longer would per mile and per minute rates be based on
arbitrarily, cherry-picked data, to the exclusion of other relevant data. No longer would the per
mile rates be based on a volatile pricing index. No longer would the Commission’s one-time-use
of CPI-U Transportation infect future rate adjustments by arbitrarily locking in one-time highs in
gasoline prices. Commenters also proposed using all data since the last adjustment, i.e., January
through September 2022, in the rate adjustments, which the Commission did not address.
129. Second, the Commission failed to consider a temporary fuel surcharge intended to
compensate Drivers for the temporarily-high gasoline prices. Dist. Hosp., 786 F.3d 46 at 59. This
was an obvious alternative that was not only proposed by multiple commenters, but has recently
128
See Comment at 11, Ex. 6; Tech:NYC Letter, Ex. 21.
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been implemented in other jurisdictions.129 See Am. Ass’n of Cosmetology Schs. v. Devos, 258 F.
Supp. 3d 50, 75 (D.D.C. 2017) (“[T]he agency must address obviously germane alternatives
proposed by commenters during the notice-and-comment period.”). It is also a significant and
viable alternative. In promulgating the Challenged Rule, the Commission was clear that it intended
to “increas[e] the minimum pay amount to account for inflation and increased driving
expenses.”130 Imposing a temporary fuel surcharge—as had been implemented in cities across the
country, including nearby Washington, D.C.—would have served that goal.131 And it would have
been a preferable alternative, as well. Unlike the Challenged Rule, which locks in historic high
gasoline prices into future rate adjustments, a temporary fuel surcharge could be rescinded
(gradually, if necessary) as gasoline prices return to normal levels.
130. Third, the Commission failed to consider a proposal to adjust per mile rates based
on the IRS’s standard mileage rate for business travel (“IRS Mileage Rate”). Specifically, it was
repeatedly proposed that the Commission raise or lower per mile rates by the same percentage as
the IRS Mileage Rate rises or falls.132 See Am. Ass’n of Cosmetology Sch.’s, 258 F. Supp. 3d at
75.
131. Use of the IRS Mileage Rate was certainly apparent to the Commission. Not only
was it proposed in comments (and in informal dialog with the Commission), but it was used by the
authors of the Parrott & Reich Studies as a means of confirming the reasonableness of the initial
per mile rates. It is also, as was explained to the Commission, a preferable alternative. It ensures
129
N.Y. Taxi Workers Alliance Press Conference, Ex. 22; Comment at 15, Ex. 6.
130
Oct. 6 Tr. at 6:2-4 (emphasis added), Ex. 17.
131
See Oct. 6 Tr. at 81:17-23, Ex. 17.
132
Burch Aff. ¶¶ 10-11; Supp. Comment at 8, Ex. 24; Tadelis Supp. Introduction ¶ 25, Ex. 23.
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that Drivers are compensated for significant mid-year changes in inflation.133 But unlike the
Challenged Rule, it represents a practical and transparent option for rulemaking, as it is determined
and published by the IRS, and thus fully independent from any of the Commission’s policy
priorities.134 The IRS Mileage Rate is also more representative of actual Driver costs; unlike CPI-
U Transportation, it does not reflect the costs of irrelevant transportation options, such a public
transit.135 And even more importantly, by fluctuating upward and downward, reliance on the IRS
Mileage Rate solves multiple problems inherent in the Challenged Rule: it will not lock in
temporarily high gasoline prices to future rates, nor will it yield only arbitrarily upward rate
adjustments beginning in 2025.
132. Fourth, the Commission failed to consider an alternative “catch up” proposal.136
This alternative, like the others, was raised by commenters, and is superior to the Challenged Rule.
Under this proposal, the Commission would implement a December 2022 rate adjustment using a
transportation-based index for the per mile rate and CPI-W for the per minute rate.137 The
Commission would then make its next adjustment in March 2024 based on the percentage change
in CPI-W, but would only implement a change to the per mile rate to the extent it would result in
a higher rate than if CPI-W had been used.138 In other words, the per mile rate would be static
until CPI-W catches up to the transportation index used for the December 2022 increase.139 Like
the Challenged Rule, it would achieve a significant one-time increase in per mile rates based on
133
Burch Aff. ¶ 11(c); Tadelis Supp. § 2.3.1 ¶ 54, Ex. 23.
134
Burch Aff. ¶ 11(a); see Tadelis Supp. § 2.3.1 ¶ 54, Ex. 23.
135
Tadelis Supp. § 2.3.1 ¶ 53, Ex. 23.
136
Burch Aff. ¶¶ 13-14; Tadelis Supp. ¶¶ 26, 57-58, Ex. 23; Supp. Comment at 8-10, Ex. 24.
137
Tadelis Supp. Introduction ¶ 26, Ex. 23.
138
Id., Ex. 23.
139
Id., Ex. 23.
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the change in a transportation cost index, as the Commission clearly favors.140 And it guards
against the Commission’s apparent concern of possible immediate decreases in Driver pay rates,
should the transportation index subsequently fall.141 But, like the IRS Mileage Rate, it will not
lock in temporarily high gasoline prices to future rates.142 To be sure, this proposal was not
preferable to the simplest and purest of the alternatives: to stay the course and continue adjusting
per mile and per minute rates, beginning again in 2023, per past practice. But because the
Commission believed it imperative that per mile rates be adjusted in December 2022 based on the
change in a transportation cost index, the “catch up” proposal was a far better alternative to the
Challenged Rule.
133. Finally, it is not unlikely that the Commission was presented with a number of other
alternatives that it failed to consider. Uber has no way of knowing whether that is the case, because
the Commission has refused to turn over the written comments it received as part of the rulemaking
process.
E. The Commission’s Per Minute Rate Adjustment Does Not Match with the
Articulated Purpose—Approximating New York City Minimum Wages.
134. The Commission’s upward adjustment to the per minute rates also arbitrarily runs
counter to the Commission’s articulated purpose for per minute compensation. See State Farm,
463 U.S. at 43.
135. In promulgating the Minimum Pay Rule, the Commission clearly articulated that
the per minute component of the minimum Driver payment calculation is designed to ensure that
Drivers are compensated akin to similarly situated New York City workers. See supra ¶ 28. In
140
Burch Aff. ¶ 14(a).
141
Id. ¶ 14(b).
142
Tadelis Supp. § 2.3.1 ¶ 58, Ex. 23; Burch Aff. ¶ 14(c).
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other words, the per minute rates were to approximate the New York City minimum wage ($15
per hour) plus allowances for paid time off ($0.90 per hour) and self-employment payroll taxes
paid by independent contractors ($1.32 per hour). Id. In promulgating the Challenged Rule, the
Commission makes no effort to disclaim or change this explanation.
136. The Commission’s justification for per minute compensation lacks the requisite
“rational connection” to the “facts found.” State Farm, 463 U.S. at 43. Under the Challenged
Rule, per minute rates would rise by 7.18% in comparison to March 2022 levels. But, as Professor
Tadelis shows, none of the values the per minute rate was designed to approximate have similarly
increased—since 2019, much less since March 2022.143 The New York City minimum wage
remains at $15.00. See N.Y. Lab. Law § 652(a). Because allowances for paid time off are
calculated as a set percentage of the minimum wage, it too remains unchanged.144 And tax liability
has not changed significantly, either.145
F. The Challenged Rule’s 2023 and 2024 Per Mile and Per Minute Rate
Adjustments Arbitrarily Omit Relevant Months of Data Without
Explanation.
137. Under the Challenged Rule, both the per mile and per minute rate will be adjusted
in 2023 based on the change in CPI-W between September 2022 and December 2022.146 And, in
2024, both rates will be adjusted based on the change in CPI-W between December 2022 and
January through December 2023.147 Like the December 2022 per mile and per minute rate
adjustments, this, too, is arbitrary.
143
144
Id., Ex.2.
145
Id., Ex. 2.
146
Challenged Rule § 2(a)(4)(i), Ex.28.
147
Id., Ex.28.
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138. As is the case for the December 2022 per mile and per minute rate adjustments, the
2023 and 2024 rate adjustments are based on time periods too short to reliably measure changes
in inflation: two single-month periods in the case of the 2023 rate adjustment, and one in the case
of the 2024 rate adjustment.148 In so doing, the 2023 and 2024 rate adjustments arbitrarily ignore
relevant data. For example, it would be more natural for the 2023 rate adjustments to be based on
the change in CPI-W between (i) April through September 2022, the end period for measuring per
mile rates effective December 2022, and (ii) December 2022. The Commission has instead
arbitrarily chosen to ignore data from April through August 2022, and the March 2023 rate
adjustment under the Challenged Rule would necessarily yield a lower rate adjustment than using
September 2022 alone.149
G. The Challenged Rule’s Rate Adjustments for 2025 and Onward Completely
Ignore Data that Shows Rates Should Be Adjusted Downward Instead of
Upward.
139. Under the Challenged Rule, rate adjustments in 2025 will only occur if they reflect
a “positive percentage change” in CPI-W.150 Put somewhat differently, the Commission has
committed that, starting in 2025, it will only ever increase per mile and per minute rates, regardless
of whether the objective data shows that the rates should go up or down. That flagrantly violates
multiple principles of reasoned decision-making.
140. First, as with the Commission’s refusal to consider pricing data from January
through August 2022, in the case of the December 2022 per minute rate adjustment, and January
through March 2022, in the case of the December 2022 per mile rate adjustment, the 2025 and
forward rate adjustments impermissibly ignore relevant data. See Trump on Ocean, 76 A.D.3d at
148
Tadelis § 1.2.2 ¶¶ 38-39, Ex. 2.
149
Tadelis Supp. § 2.2 ¶ 43, Ex. 23.
150
Challenged Rule § 2(a)(4), Ex. 28.
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1080, 1085, 1087; Gorham, 86 A.D.2d at 506. Specifically, the Commission’s methodology
would only adjust per mile or per minute rates when there is a “positive percentage change” in
CPI-W,151 but will completely ignore the same set of data if it yields a “negative percentage
change.”
141. Second, for the same reason, the Commission’s decision was clearly “not based on
a consideration of the relevant factors.” Liliputian Sys., Inc. v. Hazardous Materials Safety
Admin., 741 F.3d 1309, 1312 (D.C. Cir. 2014). The New York City Council specifically instructed
the Commission, in establishing a ratemaking methodology, to “at a minimum” consider “the
expenses of operation to the driver” as well as “the adequacy of for-hire vehicle driver income
considered in relation to for-hire vehicle expenses.” N.Y.C. Admin. Code § 19-549(b) (emphasis
added). In other words, the Commission was to ensure that minimum Driver payments are hewed
to Driver expenses, which rise and fall based on changes in inflation. Even the Commission has
acknowledged that instruction, expressing at the May 24, 2022 hearing that “[a]ny adjustments we
make to driver pay rates need to be based on driver expense data.”152 By implementing a one-way
ratchet—such that minimum Driver payments do not change if Driver expenses fall—the
Challenged Rule does not abide by the City Council’s instruction. Instead, it would cause what
amounts to reimbursement for expenses that were not incurred.
142. Third, the Challenged Rule fails to consider an important aspect of the problem.
See State Farm, 463 U.S. at 43. Specifically, the “only up” provision will create outsized and
unintended increases in Driver payments following a year with deflation and no adjustment. By
way of example, CPI-W could be 100 in Year 1, 50 in Year 2, 150 in Year 3, and 100 in Year 4.153
151
Id., Ex. 28.
152
May 24, 2022 Tr. at 6:20-24, Ex. 11 (emphasis added).
153
Supp. Comment at 13, Ex. 24.
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Under the Challenged Rule, neither the per mile nor per minute rates would change in Year 3
because the “percentage change . . . comparing the annual average for previous calendar year
[Year 2] to the annual average for the year before the previous calendar year [Year 1]” is negative
50%, not “positive.”154 But then, both the per mile and per minute rates would rise 300% in Year
4, based on the change in CPI-W between Years 2 and 3.155 That would be the case even though,
in comparison to Year 1, CPI-W had only increased by 150%, and had gone down since Year 3.156
Indeed, as Professor Tadelis documents, a similar phenomenon would have occurred had the
Commission based prior rate increases on “positive only” changes in CPI-U-Transportation over
time.157
II. The Challenged Rule Is Arbitrary and Capricious Because the Commission Failed
to Failed to Account for Unintended Consequences.
143. The Challenged Rule is also arbitrary and capricious because the Commission
failed to consider, or account for, the many unintended consequences of the proposed rate
adjustments: on Drivers, riders, and accessibility goals.158
144. An agency’s promulgation must be set aside if the agency fails to consider an
important aspect of the problem it seeks to address. State Farm, 463 U.S. at 43. In promulgating
the Challenged Rule, the Commission did not consider multiple likely impacts of the proposed
rule.
154
Id., Ex. 24.
155
Id., Ex. 24.
156
Id. at 14, Ex. 24.
157
Tadelis Supp. § 2.2 ¶ 48, Ex. 23.
158
See generally Tadelis § 4, Ex. 2.
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145. First, the Commission did not properly evaluate its impact on rider fares, or the
potential impact of a fare increase on rider demand.159 If the December 2022 rate adjustments are
implemented, Uber may be forced to pass the increased amounts caused by the rate hikes on to
riders. If Uber were to pass on all of the proposed increase in Driver payments to riders, rider
prices would go up on average by 10%. Dobbs Aff. ¶ 17. This is on top of average rider fares in
New York City on an UberX trip that have gone up by 48% between January 2019 and September
2022, as a result of the Minimum Pay Rule and the Commission’s prior inflation adjustments. Id.
¶ 19.
146. The Commission’s timing is especially poor. While Drivers received a rate increase
earlier this year (and are scheduled to receive yet another increase in March 2023), riders are
heading into a holiday season plagued with concerns over a looming recession. Id. ¶ 18. Plus, the
upcoming implementation of City-wide congestion pricing will add more government-mandated
fees to rider prices. Id.
147. The impact will be disproportionately borne by lower-income riders. As a general
matter, after previous price increases, Uber has seen its lowest rates of growth in the most
economically challenged neighborhoods. Id. ¶ 24. Moreover, some of the lowest-income
neighborhoods saw trip growth drop precipitously compared to the previous year, whereas
wealthier neighborhoods did not suffer as steep drops in growth. Id.
148. The Commission’s failure to consider the impact of the rulemaking on rider fares
and resulting predictable decrease in demand is especially improper because the City Council
explicitly instructed the Commission to do so. Among the factors the Commission was required
159
Tadelis § 4 ¶¶ 88-89, 95, 101, Ex. 2.
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to consider in setting rates was “rates of fare.” N.Y.C. Admin. Code § 19-549; see Colton, 21
N.Y.2d at 332.
149. Second, the Commission failed to consider the likely actual effects of the
Challenged Rule on Drivers. When prices go up, demand tends to decline or not grow as much as
it would have otherwise, a principle that has largely held true for Uber’s experience in New York
City. Dobbs Aff. ¶ 20. If Uber is forced to pass the increased payments caused by the December
19, 2022 rate hike on to Drivers, it carries the likely risk that riders request and take fewer trips on
the Uber platform than they otherwise would have. Id. Thus, it is possible that Drivers’ actual
compensation will fall in response to the Challenged Rule; something the Commission should have
considered as a matter of basic economics, but did not. See Tadelis Aff. ¶¶ 4-5.
150. Third, the Commission failed to consider the Challenged Rule’s likely impacts on
its stated goal of improving access to accessible rides. Efforts to increase the number of accessible
taxicabs in New York City have lagged.160 But the For-Hire Vehicle Central Dispatch Exception
(the “Accessibility Program”) has been a resounding success thanks in part to Uber’s significant
investments in this space; between 2020 and 2021 alone, the number of Wheelchair Accessible,
For-Hire Vehicles nearly doubled.161 The Challenged Rule threatens the Accessibility Program’s
success. To account for higher required payments for Drivers, Services may need to increase fees
for basis in the Accessibility Program, which will disincentivize participation.162
160
Comment at 21, Ex. 6.
161
Id., Ex. 6.
162
Id., Ex. 6.
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III. The Challenged Rule Is Contrary to Law.
A. The Challenged Rule Is Contrary to Law Because the Commission Did Not
Disclose or Adequately Identify the Data and Considerations on Which the
Challenged Rule Is Purportedly Based.
151. The Challenged Rule violates CAPA, because it is the product of deficient notice
and comment rulemaking. Specifically, meaningful comment was undermined, and judicial
review on a full record prevented, because: (i) critical documents and information on which the
Challenged Rule is based were withheld; (ii) written comments submitted in connection with the
rulemaking were not provided to the public; and (iii) the considerations on which the Challenged
Rule is based were not adequately described.
152. Under CAPA, City agencies are required to “provide the public an opportunity to
comment on . . . proposed rules” through, among other things, “submission of written data, views,
or arguments.” N.Y.C. Charter § 1043(e). Notice and comment serves important policy goals,
including providing maximum public participation to affected parties, and ensuring that agencies
have full information before making decisions. See City of Idaho Falls v. F.E.RC., 629 F.3d 222,
228-29 (D.C. Cir. 2011). It is also the primary means for establishing a record for judicial review
of agency decision-making. Am. Clinical Lab. Ass’n v. Azar, 931 F.3d 1195, 1206 (D.C. Cir.
2019).
153. Courts vacate rules that are the product of deficient notice and comment, such as
where an agency refuses to disclose information necessary to enable meaningful comment. See
ZEHN-NY LLC v. N.Y.C. Taxi & Limousine Comm’n, No. 159195/2019, 2019 WL 7067072, at
*4-5 (N.Y. Sup. Ct. Dec. 23, 2019) (Frank, J.). ZEHN-NY is instructive. There, the Commission
adopted a rule requiring Services to maintain the amount of time Drivers spent without a passenger,
either waiting for a trip request or en route to pick up the passenger, at no more than 31% in
Manhattan below 96th Street. See id. at *1. In its notice of proposed rulemaking, the Commission
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explained that it had selected 31% based on a model of increased traffic congestion in Manhattan
during peak time.163 But despite multiple requests, the Commission refused to make that model
available to commenters. This Court ultimately partially vacated the Commission’s rule. In his
opinion, Justice Frank explained that:
It is of concern that the economic modeling requested by the petitioners has not
been provided to them, especially since they were apparently relied on by the TLC
in its determination on the new rules promulgating. That the record for the basis of
TLC’s actions is incomplete simply works against the TLC as it comes to the
regulation of rules. Consequently, the Court does not have a record to evaluate the
action taken by the TLC and whether such decision was rational.
Id. at *4-5.
154. Contrary to those requirements, the Commission debilitated notice and comment—
and undermined judicial review—by refusing to provide commenters with information necessary
to understand, and respond to, the Commission’s promulgation of the Challenged Rule.
155. First, Uber’s counsel requested that the Commission and the Department provide
documents underlying the First Proposed Rule and Challenged Rule in 5 FOIL requests, 6
Follow-Up Letters, and 2 Comments. But neither the Commission nor the Department has
provided a single document containing data or information concerning the Commission’s decision-
making process, or the information on which the Commission relied in formulating the First
Proposed Rule or Challenged Rule. Nor do they appear poised to do so anytime soon. The
Department, for example, estimated that it would take until at least March 31, 2023—after two
rate adjustments would have gone into effect—to turn over responsive documents in connection
with the First Proposed Rule. See supra ¶ 53. The upshot is that commenters could not fully
comment on—and this Court cannot evaluate—the Commission’s work in crafting the Challenged
163
N.Y.C. Taxi & Limousine Comm’n, Notice of Promulgation, Statement of Basis and Purpose (“Cruising Cap”)
(Aug. 7, 2019), Ex. 39.
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Rule. See Am. Clinical Lab., 931 F.3d at 1206; City of Idaho Falls, 629 F.3d at 229. There can
be no evaluation of data analysis that is not turned over. There can be no comment on models that
are hidden. And there can be no review of alternative proposals that are not disclosed.
156. Second, the Commission did not timely provide any written comments it received
during the rulemaking process. See supra ¶¶ 89-91. That violated CAPA, which explicitly
requires that:
All written comments and a summary of oral comments concerning a proposed rule
received from the public or an agency shall be placed in a public record and be
made readily available to the public as soon as practicable and in any event within
a reasonable time, not to be delayed because of the continued pendency of
consideration of the proposed rule.
N.Y.C. Charter § 1043(e). Indeed, even the Commission concedes that it is obligated to provide
these materials in a timely fashion. In the First Proposed Rule, the Commission promised that “[a]
few days after the [October 6, 2022] hearing, copies of all comments submitted online, copies of
all written comments, and a summary of oral comments concerning the proposed rule will be
available to the public at the Office of Legal Affairs.”164 That was two months ago, and the public
is still waiting.
157. Third, the Challenged Rule fails to identify with any level of specificity the
considerations on which it is purportedly based. See Just Bagels Mfg., Inc. v. Mayorkas, 900 F.
Supp. 2d 363, 372 (S.D.N.Y. 2012) (“An agency abuses its discretion” if its rulemaking “contains
only summary or conclusory statements.”). Again, the effect was to stifle meaningful comment
and undermine judicial review. See Am. Clinical Lab., 931 F.3d at 1206; City of Idaho Falls, 629
F.3d at 229. Commenters could not comment on the Commission’s “experience with the
164
First Proposed Rule at 2 (emphasis added), Ex. 12.
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implementation of the 2018 rules” without an explanation of what that experience has been.165
They could not respond to “industry and driver feedback” without understanding what that
feedback was.166 And they could not analyze any “other considerations” if those considerations
were not identified.167
158. The Commission’s refusal to turn over or disclose information necessary to
facilitate meaningful notice and comments warrants vacatur of the Challenged Rule. See ZEHN-
NY LLC, 2019 WL 7067072, at *4-5; see also Am. Clinical Lab., 931 F.3d at 1206; City of Idaho
Falls, 629 F.3d at 229.
B. The Challenged Rule Is Contrary to Law Because the Commission Did Not
Respond to Material Comments.
159. The Commission did not merely undermine meaningful notice and comment by
refusing to timely disclose important information about its decision making. It also refused to
respond to the Comments it did receive, which represents yet another violation of CAPA.
160. Another “central purpose” of notice-and-comment rulemaking is “to obligate the
agency to respond to the material comments and concerns that are voiced.” Make the Road N.Y.
v. Wolf, 962 F.3d 612, 634 (D.C. Cir. 2020). Thus, an agency must “respond to significant
comments received during the period for public comment,” Perez v. Mortgage Bankers Ass’n, 575
U.S. 92, 96 (2015), and its failure to do so “generally demonstrates that the agency’s decision was
not based on a consideration of the relevant factors,” Liliputian, 741 F.3d at 1312.
161. In particular, an agency must address and respond to any material comments it
received in a statement of basis and purpose. See N.Y.C. Charter § 1043(f)(1)(c). “The purpose
165
First Proposed Rule at 2, Ex. 12; Second Proposed Rule at 1, Ex. 25.
166
Id., Exs. 12, 25.
167
Id., Exs. 12, 25.
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of a basis and purpose statement is at least in part, to respond in a reasoned manner to the comment
received, to explain how the agency resolved any significant problems raised by the comments,
and to show how that resolution led the agency to the ultimate rule.” Street Vendor Project, 811
N.Y.S.2d at 561 (cleaned up).
162. The Commission did not provide any response to any comments, much less a
“reasoned” one. Id. Quite the opposite, in fact. In between the First Proposed Rule and
Challenged Rule, the Commission received at least seven substantive comments that Uber is aware
of (and potentially many more, which Uber cannot be aware of, given the Commission’s refusal
to promptly turn over all comments received, see supra ¶¶ 89-91). Notwithstanding those
intervening comments, the Commission’s statements of basis and purpose in the First Proposed
and Second Proposed Rules—as well as in the Challenged Rule—are nearly identical.
163. Thus, the Commission failed to address or respond to any of the following
comments, or alternative proposals, that it received, including that:
a. Adjusting rates three times within a calendar year is a stark and arbitrary departure
from the Minimum Pay Rule and the Commission’s prior practice consistent with
the Minimum Pay Rule;168
b. Setting per mile and per minute rates on less than two years’ worth of data is
uneconomically unjustified, especially where doing so ignores relevant data at the
Commission’s disposal;169
168
Comment at 16-17, Ex. 6; Supp. Comment at 5, Ex. 24; First Proposed Rule § 2(a)(4)(i), Ex. 12; Second
Proposed Rule § 2(a)(4)(i), Ex. 25.
169
Comment at 15, Ex. 6; Supp. Comment at 6, Ex. 24.
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c. The Challenged Rule’s one-time use of data from CPI-U Transportation, for only
the December 2022 per mile rate adjustment, arbitrarily locks in temporarily high
gasoline rates for future per mile rates;170
d. CPI-U Transportation is a highly volatile index that is not suited to ratemaking;
e. Per mile rate adjustments, in December 2022 and onward, should be based on the
IRS Mileage Rate;171
f. The Challenged Rule will ultimately harm riders, with higher fares, and Drivers,
with lower net income;172
g. The Commission failed to consider other likely impacts of the Proposed Rule,
including on accessibility initiatives;173 and
h. The Commission should delay implementation of the Challenged Rule until all
relevant documents underlying the rulemaking process have been made
available.174
164. The Commission’s abject failure to address and/or respond to the comments it
received was contrary to law. See Street Vendor Project, 811 N.Y.S.2d at 561.
170
Comment at 15, Ex. 6; Supp. Comment at 5-6, Ex. 24; First Proposed Rule at 3, Ex. 12; Second Proposed Rule
at 2, Ex. 15.
171
Tadelis Supp. § 2.3 ¶ 49, Ex. 23; Burch Aff. ¶¶ 10-11.
172
Tadelis § 4.1 ¶ 90, Ex. 2; Tadelis Supp. § 2.3 ¶ 46, Ex. 23.
173
Comment at 21-22, Ex. 6.
174
Comment at 3, Ex. 6; Supp. Comment at 14-15, Ex. 24.
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C. The Commission Violated the Directive of the City Council by Passing a Rule
to Achieve Rate-Hike Outcomes and Failing to Enact a Methodology for
Determining Payments.
165. The Challenged Rule is ultra vires—the product of the Commission’s
impermissible exercise of policymaking, as opposed to reasoned administrative decision-making,
in excess of the limited authority delegated by the New York City Council.
166. It is axiomatic that “an agency’s authority must coincide with its enabling statute.”
N.Y. State Superfund Coal., 75 N.Y.2d at 92. “An agency cannot create rules, through its own
interstitial declaration, that were not contemplated or authorized by the Legislature and thus, in
effect, empower themselves to rewrite or add substantially to the administrative charter itself.”
Tze Chun Liao, 74 N.Y.2d at 510. These fundamental limits on administrative power apply to
local and state agencies alike. See, e.g., Ahmed v. City of New York, 129 A.D.3d 435, 440 (1st
Dep’t 2015) (annulling a Commission rule promulgated in excess of purported authority delegated
by the New York City Council).
167. The New York City Council has tasked the Commission only with promulgating
and applying a “method for determining payment that must be made for” a Driver. N.Y.C. Admin.
Code § 19-549. The Commission set initial per mile and per minute rates based on a study of
contemporaneous Driver expenses, and an analysis of minimum wages of similarly situated New
York City workers. It also established a consistent method to ensure these rates tracked inflation
based on year-over-year adjustments to CPI-W.
168. In promulgating the Challenged Rule, however, the Commission greatly exceeded
the limited authority to which it was delegated. It has not established a “method for determining
payment.” It did not attempt to make an objective assessment of inflation and let the results land
where they land based on the complete set of relevant data. Instead, it determined to grant Drivers
a substantial pay increase, and then cherry picked the data necessary to “justify” that rate increase.
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The terms of the Challenged Rule present the most striking evidence. The Commission, for
example, chose to ignore relevant and accessible CPI-U Transportation data from January,
February, and March 2022 in setting per mile rates, such that per mile rates will increase in
December 2020 by 23.93% as opposed to 20.71%.175 Similarly, the Commission chose to ignore
relevant and accessible CPI-W data from January, February, March, April, May, June, July, and
August of 2022 in setting per minute rates. The upshot is that the Challenged Rule increases per
minute rates by 7.18% in December 2022 as opposed to 5.94%.176 And the Commission made the
unilateral decision to only adjust minimum Driver payments upward—regardless of the relevant
pricing data—notwithstanding the City Council’s instruction, and the Commission’s own
acknowledgement, that Driver payment rates must reflect Driver costs. Where, as here, a rule is
the product of ultra vires rulemaking, it must be annulled. See, e.g., Ahmed, 129 A.D.3d 435 at
440.
169. In fact, it is not simply that the City Council did not vest the Commission with such
policymaking authority, it could not have. A legislature’s delegation of authority to an
administrative agency violates the separation of powers where it crosses the line between
implementing legislative policy and engaging in policymaking of its own—a task expressly
reserved for the legislature. See Saratoga Cnty. Chamber of Com. v. Pataki, 100 N.Y.2d 801, 821-
22 (2003); Boreali v. Axelrod, 71 N.Y.2d 1, 9, 11 (1987). One of the factors that a court considers
in deciding whether a delegation is invalid is whether “the regulatory agency balanced costs and
benefits according to preexisting guidelines, or instead made value judgments entailing difficult
175
Tadelis Supp. Introduction ¶ 20 & Table 2, Ex. 23. The Commission had followed a similar practice with
respect to the per mile rates in the First Proposed Rule. The Commission proposed that the per mile rates be
adjusted based on the change in CPI-U Transportation between (i) January 2019 (ignoring February through
December 2019) and (ii) June 2022 (ignoring January through May 2022, and July through August 2022). First
Proposed Rule, Ex. 12.
176
Id., Ex. 23.
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and complex choices between broad policy goals to resolve social problems.” Nat’l Energy
Marketers Ass’n v. N.Y.S. Pub. Serv. Comm’n, 167 A.D.3d 88, 94 (3rd Dep’t 2018); see, e.g.,
Baldwin Union Free Sch. Dist. v. Cnty. of Nassau, 84 N.Y.S.3d 699, 722 (Sup. Ct. 2018).
170. Baldwin is instructive. There, Nassau County adopted an ordinance authorizing the
County Treasurer to “promulgate rules and rate schedules for the creation and collection of . . .
sewer rate charges.” 84 N.Y.S.3d at 708. However, the ordinance was unconstitutionally vague
and violated the separation of powers principle, as it did “not set forth what methodology will be
utilized in setting the rates, or even if the rate is subject to change from year to year.” Id. at 722.
This uncertainty, the Supreme Court held, “makes it not only difficult, but nearly impossible, for
the entities to determine and calculate the sewer charges that will be imposed upon them, [or] to
properly prepare and establish their annual budgets,” among other problems. Id. After holding
that the ordinance did not “contain[] sufficient standards to afford a reasonable degree of certainty
so that a person of ordinary intelligence is not forced to guess at its meaning, and to safeguard
against arbitrary enforcement,” and thus excessively delegated “vast discretion” to the County
Treasurer, the court declared the law unconstitutional on vagueness and separation of powers
grounds. Id.
171. Same here. The Commission interprets its authority to establish a “method” as
allowing it to cherry-pick time periods and inflation indices that result in disproportionally large
adjustments, and does not even pick a single “method” for the next three adjustments. The putative
authority to engage in this type of vague, unpredictable, standardless decision-making is precisely
the type of authority that the Baldwin court found unconstitutional.
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IV. The Court Should Strike the Invalid Provisions of the Challenged Rule While
Allowing the Unchallenged Provisions to Take Effect.
172. For all of the reasons demonstrated in this Petition, Uber respectfully requests that
the Court vacate the portions of the Challenged Rule pertaining to per mile and per minute rate
adjustments. But Petitioner does not seek and the Court should not disturb the Challenged Rule’s
treatment of the Utilization Rate.
173. A court adjudicating an administrative challenge to a rule may “sever a rule by
setting aside only the offending parts of the rule.”177 Carlson v. Postal Regul. Comm’n, 938 F.3d
337, 351-52 (D.C. Cir. 2019) (vacating rate change for first class mail while leaving undisturbed
“rate changes for marketing mail, periodicals, package services, overweight item charges, and
special services”). Whether severance is warranted ultimately turns on the promulgating agency’s
intent. Am. Fuel & Petrochemical Mfrs. v. EPA, 3 F.4th 373, 384 (D.C. Cir. 2021). Thus, in
deciding whether to sever the offending provision of a challenged rule, courts consider whether
(1) “the agency would have adopted the same disposition regarding the unchallenged portion of
the regulation if the challenged portion were subtracted” and (2) the surviving portions of the
regulation “can function sensibly without the stricken provision.” Carlson, 983 F.3d at 351.
174. Under the Minimum Pay Rule, all Services were assigned a 58%, industry-wide
Utilization Rate.178 And, although not explicitly provided for in the Minimum Pay Rule, the time
a Driver spent available for dispatch for multiple Services was divided equally between Services
177
Article 78 courts are vested with the authority to annul rules, see, e.g., ZEHN-NY, 2019 WL 7067072, at *6,
which CAPA defines as “the whole or part of any statement or communication of general applicability that . . .
implements or applies law or policy,” N.Y.C. Charter § 104(1) (emphasis added); see Carlson, 938 F.3d at 351
(inferring a federal court’s severance authority based on the APA’s similar definition of “agency action” as “the
whole or a part of an agency rule” (quoting 5 U.S.C. § 551(13)).
178
Challenged Rule at 2, Ex. 28; Parrot & Reich 2018 at 13, Ex. 4.
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for purposes of calculating each Service’s Utilization Rate.179 The Commission’s final rule took
only a slightly different tack. All Services would still be assigned a 58%, industry-wide Utilization
Rate, so long as each Service’s actual Utilization Rate, calculated on an annual basis, fell between
52% and 64%; otherwise, the Service’s actual Utilization Rate would apply.180 And the final rule
codifies the Commission’s existing approach to “multi-apping”: time a Driver spends available for
dispatch for “multiple services” will be allocated evenly between Services for purposes of
calculating each Service’s Utilization Rate.181 These provisions met the requirements for
severance and should be served.
175. First, the Commission clearly would have adopted the final rule’s provisions
pertaining to the Utilization Rate regardless of the per mile and per minute rate adjustments. See,
e.g., Davis Cnty. Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir 1997) (“Severance
and affirmance of a portion of an administrative regulation is improper if there is substantial doubt
that the agency would have adopted the severed portion on its own.” (emphasis added)). The
Commission has a history of doing just that. In August 2019, for example, the Commission
approved rules that would not have adjusted per mile or per minute rates, but would have adjusted
the Utilization Rate calculation by limiting the amount of time each Driver may spend without a
passenger.182 And, similarly, in January 2020, the Commission proposed to retroactively change
the time period used to measure Services’ Utilization Rates, without adjusting per mile or per
minute rates.183 Similarly, the Commission made two prior adjustments to the per mile and per
179
See Minimum Pay Rule § 59D-22., Ex. 1.
180
Challenged Rule at 3, Ex. 28.
181
Id., Ex. 28.
182
See Cruising Cap, Ex. 39.
183
Email from Ryan Wanttaja, N.Y.C. Taxi & Limousine Comm’n, to Josh Gold, Uber, et al. (Jan. 10, 2020), Ex.
7.
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minute rates without making changes to the utilization rate aspects of the Minimum Pay Rule.
Moreover, commenters encouraged the Commission to sustain the Commission’s approach to
“multi-apping” while dispensing with the infirm per mile and per minute rate adjustments.184
176. Second, and similarly, the final rule’s approach to Utilization Rates can function
sensibly without the stricken provision, as it is not “strikingly different from any the Commission
has ever considered or promulgated.” MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13, 23
(D.C. Cir. 2001). On the contrary, the Utilization Rate calculation set forth in the final rule is
strikingly similar to the Commission’s past practice. The final rule retains a 58% default
Utilization Rate, but merely adds a higher or lower limit of 52% or 64%, after which the Service’s
actual Utilization Rate would apply.185 Further, the final rule simply codifies the Commission’s
prior approach to “multi-apping.”186
177. In sum, this Court should not disturb the final rule’s approach to Utilization Rate
calculations.
V. The Court Should Enjoin Enforcement of the Challenged Rule Pending

Adjudication of the Petition.
178. The Court should issue a preliminary injunction enjoining enforcement of the
Challenged Rule. A preliminary injunction is warranted if an agency is about to “act in violation
of” the petitioner’s rights that will “render the [Court’s] judgment ineffectual” by imposing losses
that are not recoverable at law and enforcement of which during the pendency of this action will
“produce injury.” N.Y. C.P.L.R. 6301; see Credit Agricole Indosuez v. Rossiyskiy Kredit Bank,
94 N.Y.2d 541, 544-45 (2000). A preliminary injunction is appropriate where, as here, the moving
184
See, e.g., Supp. Comment at 16-18, Ex. 24.
185
Challenged Rule § 3, Ex. 28.
186
See id., Ex. 28.
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party shows by clear and convincing evidence “(1) a likelihood of ultimate success on the merits;
(2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of
equities tipping in [its] favor.” Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988); N.Y. C.P.L.R. 6301,
6313 (authorizing such relief). A temporary restraining order should also be granted pending a
hearing for a preliminary injunction because, in the absence of relief, Uber will suffer “immediate
and irreparable injury.” N.Y. C.P.L.R. 6301.
179. Uber satisfies each of these requirements and is entitled to a preliminary injunction
of the Challenged Rule pending adjudication of the Petition.
A. Uber Is Likely to Succeed on the Merits.

180. The threshold inquiry with respect to likelihood of success on the merits is “whether
the proponent has tendered sufficient evidence demonstrating ultimate success in the underlying
action.” 1234 Broadway LLC v. W. Side SRO Law Project, 86 A.D.3d 18, 23 (1st Dep’t 2011).
Although the movant must “establish a clear right to that relief under the law and the undisputed
facts upon the moving papers,” it need not “tender conclusive proof beyond any factual dispute
establishing ultimate success.” Id. (cleaned up); see Ma v. Lien, 198 A.D.2d 186, 187 (1st Dep’t
1993) (“[E]ven when facts are in dispute, the nisi prius court can find that a plaintiff has a
likelihood of success on the merits, from the evidence presented, though such evidence may not
be ‘conclusive.’”); McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 A.D.2d 165, 172-73
(2nd Dep’t 1986) (“As to the likelihood of success on the merits, a prima facie showing of a right
to relief is sufficient; actual proof of the case should be left to further court proceedings . . . .”).
181. Uber’s Article 78 petition is likely to succeed on the merits for the reasons set forth
above.
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B. Uber Will Suffer Irreparable Harm Absent Preliminary Relief.

182. A party seeking either a temporary restraining order or a preliminary injunction
must demonstrate the prospect of irreparable injury if the injunction is not granted. Gilliland v.
Acquafredda Enters., LLC, 936 N.Y.S.2d 125, 129 (1st Dep’t 2011). Here, if the Challenged Rule
is permitted to go into effect on December 19, 2022, Uber would be forced to either absorb as
much as $21 to $23 million per month in unrecoverable additional payments, or pass those amounts
on to riders, which is no answer. The likely loss of demand that a fare increase would engender
would also impose revenue losses on Uber, and a fare increase right before the holiday season and
in the current economic environment risks loss of demand, market share, customers, and
unquantifiable rider goodwill.
1. The Increased Payments Required for Compliance with the

Challenged Rule Are Substantial and Not Recoverable.
183. A key determinant of whether harm is irreparable is “whether or not that harm may
be compensated by money damages if the motion is not granted.” H.D. Smith Wholesale Drug
Co. v. Mittelmark, No. 650459/2011, 2011 WL 5964555, at *4 (N.Y. Sup. Ct. Nov. 18, 2011); see
also Chi. Research & Trading v. N.Y. Futures Exch., Inc., 84 A.D.2d 413, 416 (1st Dep’t 1982)
(injunctive relief warranted “where the plaintiff has no adequate remedy at law”). A preliminary
injunction is a “reasonable disposition” where its denial “might well have rendered any final
judgment ineffectual.” See Garden City Co. v. Erickson, 251 A.D.2d 262, 262 (1st Dep’t 1998)
(citing cases). Here, the Challenged Rule could easily cause tens of millions of dollars per month
in additional payments. If Uber were to absorb those payments, it would have no way of
recovering them from the Commission even if it is successful in its Article 78 proceeding, because
they are not funds recoverable either in this proceeding or in an ancillary one against New York
City.
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a. The Increased Payments Required for Compliance Total

Millions of Dollars Per Month.
184. The prices riders pay for a ride on Uber’s platform are determined based on a
generally-applicable pricing formula that includes, among other factors, time and distance rates
that are, in turn, based on per mile and per minute rates paid to Drivers, plus a fee to Uber, and
certain adjustments to respond to market conditions and balance supply and demand, plus other
factors. See Dobbs Aff. ¶ 5. New York City is Uber’s largest market, measured by any material
metric. Id. ¶ 3.
185. Under the Challenged Rule, effective December 19, 2022, the per mile rate of a ride
would increase by $0.187 (from $1.161 to $1.348) and the per minute rate would increase by
$0.038 (from $0.529 to $0.567). Id. ¶ 7. In 2022 to date, the average Uber ride in New York City
was around 5 miles long and took approximately 19 minutes. Id. Accordingly, the estimated
minimum payment for an average trip would increase by $1.656 as a result of the Challenged Rule.
Id. This is an increase of 10.5% over existing rates. Id.
186. Uber has calculated the likely aggregate impact of these increased payments in a
variety of ways, using Uber’s own internal data from New York City. Dobbs Aff. ¶¶ 6-25. Based
on Uber’s calculations using recent trip volumes, Uber would be paying out between $21 and $23
million every month—between $252 and $281 million annually. Id. ¶ 8. Calculated differently,
in just the 72 days between the date when the December 2022 rates go into effect and the
anticipated adjustments in March 2023, Uber would pay out an additional $54 million. Id. ¶ 9.
187. The company’s margins in New York City are thin. To absorb the entire $1.656
increase in price per trip would significantly slash Uber’s average variable margin per trip. Id.
¶ 13.
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188. It is no answer that Uber could split the increased payments required for
compliance, absorbing some of the amount itself and passing some to riders, as it did in response
to the Commission’s imposition of the Minimum Pay Rule in 2019. Any increased amounts that
Uber pays to Drivers in compliance with the rule would likely be substantial. Id. ¶ 15. In February
2019, when the original Minimum Pay Rule was introduced in New York City, Uber spent
significant amounts on rider incentives to mitigate the ride price impact of the new rule, though
that effort could not continue indefinitely. Id. ¶ 21. These substantial increased amounts would
not be recoverable for the same reasons described below.
189. Moreover, if Uber were to pass some or all of the increased amounts required for
compliance on to riders, then Uber faces a predictable decrease in trip volume—and thus loss of
revenues. When prices go up, demand tends to decline or not grow as much as it would have
otherwise, a principle that has largely held true for Uber’s experience in New York. Id. ¶ 20.
Riders have already experienced a massive increase in the cost of rides since the Commission
imposed the Minimum Pay Rule in 2019. Id. ¶ 19. In New York City, riders have many choices
of transportation in addition to requesting a ride on the Uber platform: they can choose Lyft, taxis,
livery, the subway, and just not to ride at all. Id. ¶ 20. When riders do not take trips they otherwise
would have taken, Uber does not earn the revenues it otherwise would have earned. Id.
190. Uber has seen a downturn in demand in response to past fare increases that the
Commission’s Driver pay rules have required, and anticipates significant losses in ride volume
and growth as a result of fare increases. Dobbs Aff. ¶ 23; Tadelis Aff. ¶ 5. This loss of customers,
and reduction in business, constitutes irreparable harm. See Willis of N.Y., Inc. v. DeFelice, 299
A.D.2d 240, 242 (1st Dep’t 2002) (loss of business is irreparable harm); Nassau Soda Fountain
Equip. Corp. v. Mason, 118 A.D.2d 764, 765 (2d Dep’t 1986) (“[Petitioner] satisfactorily
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established irreparable injury, since it appears that the defendants might significantly diminish the
amount of business conducted by [petitioner].”).
b. The Increased Payments Required for Compliance Are Not

Recoverable at Law, Even If Uber Were to Prevail and
Demonstrate That the Challenged Rule Is Unlawful.
191. There is no way for Uber to recover these substantial increased payments required
for compliance even if it were to succeed in this proceeding or an ancillary proceeding, because
sums required for compliance are not recoverable in an Article 78 proceeding and it could not
recover damages in a separate lawsuit against New York City due to principles of sovereign
immunity.
192. First, Uber’s increased payments costs are not recoverable under New York Civil
Procedure Law and Rules 7806, which permits in an Article 78 proceeding only restitution or
damages that are “incidental to the primary relief sought.” N.Y. C.P.L.R. 7806. Courts have held
that monetary injuries are not “incidental” to the relief even when they are caused by compliance
with an arbitrary and capricious agency action. See Metro. Taxicab Bd. of Trade v. N.Y.C. Taxi &
Limousine Comm’n, 115 A.D.3d 521, 522 (1st Dep’t 2014) (despite finding that challenged rule
was arbitrary and capricious, declining to require Commission to reimburse taxi owners for funds
that they could not have collected from drivers while unlawful rule was in place). Rather, courts
tend only to find that damages are incidental to the primary relief sought where the “primary aim
of the Article 78 proceeding would make it a ‘statutory duty’ of the respondent to pay the petitioner
the sum sought.” Metro. Taxicab Bd. of Trade v. N.Y.C. Taxi & Limousine Comm’n, 38 Misc. 3d
936, 941 (N.Y. Sup. Ct. 2013).
193. That is not the case here, where the Commission is not withholding or retaining any
funds from Uber. Compare Matter of N.Y. State Assn. of Homes & Servs. For Aging v. Perales,
179 A.D.2d 296, 297-98 (3d Dep’t 1992) (agency had to provide, as incidental damages, portion
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of Medicare rate “withheld or recouped” from nursing homes as a result of invalidated regulation)
with Metro. Taxicab, 115 A.D.3d at 521-24 (agency did not have statutory duty to reimburse
petitioners, owners of taxies, for sales and rental taxes that they were unable to charge to lessees
of taxies as result of invalidated rule). Instead, the funds that Uber would be required to pay
Drivers would be “incurred . . . by reason of” Uber’s “compliance with the regulation,” which the
Commission is not likely to be obligated to pay. Metro. Taxicab, 38 Misc. 3d at 942.
194. Second, there is no separate action that would enable Uber to redress its harms
because the Commission is immune from payment of damages resulting from invalidated rules
that, as here, were implemented as “discretionary actions taken during the performance of
government functions.” Metro. Taxicab, 115 A.D.3d at 524-25 (quoting Valdez v. City of New
York, 18 N.Y.3d 69, 76 (2011)) (holding the Commission to be immune and concluding that “the
TLC’s determination in this case, however unjustified it may have been, was an exercise of
discretion”). Thus, even if the Court finds that the Challenged Rule is arbitrary and capricious, it
is likely that the City would not be subject to “liability for losses that petitioners claimed to have
suffered by reason of their compliance with the regulation.” Metro. Taxicab, 38 Misc. 3d at 945;
see also Regeneron Pharm.’s, Inc. v. U.S. Dep’t of Health and Hum Serv.’s, 510 F. Supp. 3d 29,
39 (S.D.N.Y. 2020) (holding Regeneron would likely suffer “irreparable financial loss absent a
preliminary injunction” where monetary damages cannot later be recovered due to sovereign
immunity); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 404 (2d Cir. 2004) (finding that loss
of business opportunities, loss of goodwill, and harm to a business’ reputation cannot be translated
into a monetary loss and therefore is irreparable harm).
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195. Thus, Uber has no recourse for the tens of millions it must expend to comply with
the Challenged Rule.187 That is sufficient to establish irreparable harm, even though the harm is
economic in nature. See Metro. Taxicab Bd. of Trade v. City of New York, No. 08CIV7837(PAC),
2008 WL 4866021, at *5-7 (S.D.N.Y. Oct. 31, 2008) (finding irreparable harm based on
unrecoverable costs to be incurred for compliance with regulation); Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 220-21 (1994) (Scalia, J., concurring) (“[C]omplying with a regulation later
held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.”).
2. Passing on the Increased Payments to Riders Would Result in

Irreparable Harm to Uber’s Market Share, Customer Base, and
Goodwill.
196. If Uber were to pass on the substantial increased payments to riders in the form of
increased fares just before the holiday season, Uber would incur other irreparable harm: alienation
of its customer base and irreparable loss of customers through reduction in demand and goodwill.
“[I]t is well settled that the loss of goodwill of a viable, ongoing business may constitute irreparable
harm warranting the grant of preliminary injunctive relief.” Asprea v. Whitehall Interiors NYC,
LLC, 206 A.D.3d 402, 403 (1st Dep’t 2022); see also Willis of New York, 299 A.D.2d at 242 (loss
of business is irreparable harm); Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186 A.D.2d
631, 633 (2d Dep’t 1992) (damage to “reputation with clients [and] potential clients . . . would
constitute irreparable harm”); Teamquest Corp. v. Unisys Corp., No. C97-3049, 2000 WL
34031793, at *13 (N.D. Iowa Apr. 20, 2000) (finding irreparable harm where the plaintiff “would
be forced to pass on the increased cost to its customers, which would invariably result in loss of
customers to competitors, and would also injure its goodwill within the industry”).
187
Uber cannot, of course, seek to claw back payments made to Drivers pursuant to the Challenged Rule if, after
full briefing and argument on this Petition, it were later invalidated.
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197. Fare hikes at this sensitive time—in challenging economic circumstances, and right
before the holidays—will damage the riding public’s perception of Uber. Damage to reputation
and goodwill independently constitutes irreparable harm. See Sylmark Holdings Ltd. v. Silicone
Zone Int’l Ltd., 783 N.Y.S.2d 758, 772 (N.Y. Sup. Ct. 2004) (“The loss of an industry leader’s
market, and the loss of the advantages of being a pioneer and a market leader, may constitute
irreparable harm.”); see also Veeco Instruments Inc. v. SGL Carbon, LLC, No. 17-CV-2217
(PKC), 2017 WL 5054711, at *27 (E.D.N.Y. Nov. 2, 2017) (finding irreparable harm in the form
of damage to the plaintiff’s “competitive position in a relevant market, including loss of future
business opportunities, damage to brand distinctiveness, loss of reputation as an innovator in the
market, and loss of network effects and customer lock-in effects in downstream markets . . . and
loss of goodwill”).
198. The goodwill of Uber’s customers is critical in a competitive market such as New
York City. This is a terrible time for the Commission to force Uber to raise rider prices,
particularly with a fare hike as high as 10%. Dobbs Aff. ¶ 18. Uber has been forced to raise rider
prices since the Minimum Pay Rule first went into effect. Id. ¶ 19. Drivers just received an
increase to their per mile and per minute rates in March 2022. Id. ¶ 18. Consumers have been
facing inflation throughout the year and are heading into the holidays with concerns of a looming
recession. Id. City-wide congestion pricing has been approved and will be implemented, which
will soon add more government-mandated fees to rider prices. Id. A rider price hike that comes
off the back of another hike earlier this year—and will precede yet another adjustment early next
year, yet another one in 2024, and perpetual increases beginning in March 2025—will likely
alienate a critical customer population right around the holidays, damage Uber’s reputation, and
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cause a long-lasting loss of goodwill from New York City residents, as well as the millions of
visitors to New York during the holiday season. Id. ¶ 25.
199. The Challenged Rule also risks a downward spiral for the most vulnerable riders in
New York’s outer boroughs. As a general matter, after the various price increases over the last
few years, Uber has seen its lowest rates of growth in the most economically challenged
neighborhoods. Id. ¶ 24. When the Minimum Pay Rule was first instituted in 2019, the
Commission’s own data showed a disproportionate impact on the outer boroughs. Id. Moreover,
some of the lowest-income neighborhoods saw trip growth drop precipitously compared to the
previous year, whereas wealthier neighborhoods did not suffer as steep drops in growth. Id. From
May to October 2022, trips starting in the Bronx—a borough with lower average incomes—are
recovering in growth from previous price hikes the slowest. Id. This risks Uber’s goodwill among
New York City residents. See Klein, Wagner & Morris, 186 A.D.2d at 633.
200. The Challenged Rule, in short, will tarnish Uber’s reputation with New Yorkers.
That is quintessentially irreparable harm and should not be permitted pending the determination
of whether the Challenged Rule is proper in the first place. See Second on Second Café, Inc. v.
Hing Sing Trading, Inc., 66 A.D.3d 255, 272-73 (1st Dep’t 2009) (finding irreparable harm where
petitioner-restaurant’s closure would cause it to “miss out” on the holiday season and “los[e] . . .
the goodwill it built up at this location during its first four years of operation”); CanWest Glob.
Commc’ns Corp. v. Mirkaei Tikshoret Ltd., 9 Misc. 3d 845, 872 (N.Y. Sup. Ct. 2005) (holding
“erosion of . . . reputation” constitutes irreparable harm).
201. In addition, as Uber described above, once the Commission implements the
Challenged Rule, no matter who pays the increased Driver rates, the money will be
unrecoverable—not by Uber, not by its customers. In the absence of a preliminary injunction, no
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party would have an adequate remedy at law. H.D. Smith Wholesale Drug Co., 2011 WL 5964555,
at *4; Chi. Research & Trading, 84 A.D.2d at 416.
3. The Commission’s Unlawful Process Is Irreparably Harming Uber by

Depriving Uber of Vital Participatory Rights.
202. Uber has separately suffered irreparable harm due to the Commission’s blatant
violations of CAPA, which cannot be rectified once the Challenged Rule is put into effect.
203. “A procedural violation can give rise to irreparable harm justifying injunctive relief
because lack of process cannot be remedied with monetary damages or post-hoc relief by a court.”
Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255, 1290 (Ct. Int’l Trade 2019),
as modified, 476 F. Supp. 3d 1323 (2020). Federal courts have routinely held that violations of
the APA, whose application informs this Court’s interpretation of CAPA,188 cause irreparable
injuries to regulated parties. See id. (“A failure to comply with APA procedural requirements
therefore itself causes irreparable harm.”); see also ITServe All. Inc. v. Scalia, No. 20-14604, 2020
WL 7074391, at *10 (D.N.J. 2020) (“[M]any courts have found that a preliminary injunction may
be issued solely on the grounds that a regulation was promulgated in a procedurally defective
manner.”); Eli Lilly & Co. v. Cochran, 526 F. Supp. 3d 393, 408 (S.D. Ind. 2021) (finding
irreparable harm based on violation of APA’s notice and comment requirement alone); N. Mariana
Islands v. United States, 686 F. Supp. 2d 7, 17-19 (D.D.C. 2009) (same).
204. Here, the Commission violated the notice-and-comment requirements of CAPA by
failing to (i) identify with specificity the considerations on which the Challenged Rule is
purportedly “base[d];” (ii) turn over the documents and information on which it purportedly relied
in crafting the Challenged Rule; (iii) make available any written comments that it had received
188
See supra n.110.
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during the rulemaking process; or (iv) respond to the comments it received in the Challenged
Rule’s Statement of Basis and Purpose. Notice and comment is designed to ensure fairness in the
rulemaking process, elicit meaningful participation by the affected public, and give affected parties
an opportunity to develop an adequate factual record that will ultimately assist judicial review.
City of Idaho Falls, 629 F.3d at 228-29; Am. Clinical Lab. Ass’n, 931 F.3d at 1206. The
Commission’s procedural violations deprived Uber, and the public, of the right to respond
substantively and meaningfully to the information on which the Challenged Rule is based.
205. The harm from this procedural violation will be irreparable if the rule is not
enjoined. The Commission has expressed no intention to re-open the comment period or solicit
Uber’s input on the documents and information it has thus far inexplicably withheld. But even if
it did, “permitting the submission of views after the effective date is no substitute for the right of
interested persons to make their views known to the agency in time to influence the rule making
process in a meaningful way.” City of New York v. Diamond, 379 F. Supp. 503, 517 (S.D.N.Y.
1974); see also N. Mariana Islands, 686 F. Supp. 2d at 18-19 (holding if the challenged rule is
“not enjoined prior to its effective date,” then the plaintiff “will never have an equivalent
opportunity to influence the Rule’s contents,” and this violation “cannot be cured by later remedial
action.”). As explained by then-Judge Breyer:
A district court, when considering a request for a preliminary injunction, must

realize the important fact of administrative life [that] . . . as time goes on, it will
become ever more difficult to undo an improper decision . . . The relevant agencies
and the relevant interest groups . . . may become ever more committed to the action
initially chosen. They may become ever more reluctant to spend the ever greater
amounts of time, energy and money that would be needed to undo the earlier action
and to embark upon a new and different course of action . . . . Given the realities,
the farther along the initially chosen path the agency has trod, the more likely it
becomes that any later effort to bring about a new choice, simply by asking the
agency administrator to read some new document, will prove an exercise in futility
. . . . The difficulty of stopping a bureaucratic steam roller, once started, still seems
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to us . . . a perfectly proper factor for a district court to take into account in assessing
that risk, on a motion for a preliminary injunction.
Sierra Club v. Marsh, 872 F.2d 497, 503-04 (1st Cir. 1989) (Breyer, J.). The procedural infirmities
described above, coupled with the inertia of the “bureaucratic steam roller,” id., is sufficient to
demonstrate irreparable injury. Invenergy Renewables LLC, 422 F. Supp. 3d at 1290.
C. The Balance of Equities Is Overwhelmingly in Uber’s Favor.

206. The balance of equities also favors an injunction. Balancing the equities “requires
the court to look to the relative prejudice to each party accruing from a grant or a denial of the
requested relief.” Ma, 198 A.D.2d 187. The balance of equities favors petitioner or plaintiff where
the injury to be sustained “is more burdensome to the [petitioner] than the harm caused to the
[respondent] through the imposition of the injunction.” Klein, Wagner & Morris, 186 A.D.2d at
633. Harm to a respondent from imposition of the injunction is particularly low where the
injunctive relief would merely preserve the status quo pending final adjudication. See, e.g.,
Gramercy Co. v. Benenson, 223 A.D.2d 497, 498 (1st Dep’t 1996) (“[T]he balance of the equities
tilts in favor of plaintiffs, who merely seek to maintain the status quo, and against the trustees, who
may remove the trees” once the underlying claim is adjudicated); Vapor Tech. Assoc. v. Cuomo,
118 N.Y.S.3d 397, 404 (Sup. Ct. 2020) (“On the other hand, granting the preliminary injunction
would maintain the status quo pending the ultimate determination of this controversy.”). Finally,
in balancing the equities, courts must “consider the enormous public interests involved.” Seitzman
v. Hudson River Assocs., 126 A.D.2d 211, 214 (1st Dep’t 1987).
207. As explained above, Uber will suffer severe and irreparable harm absent injunctive
relief. By contrast, there is no discernible harm at all to the Commission if the injunction is
granted. Although Uber maintains that the rule is unlawful, if it is ultimately upheld, then Uber’s
requested injunctive relief will merely have resulted in a small delay in implementing a rule that
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has already been many months in the making. Granting Uber’s requested injunctive relief will
simply maintain the status quo pending adjudication of whether the Commission’s rule is valid—
thus encouraging the very policy purpose underlying preliminary injunctive relief. See Bass v.
WV Pres. Partners, LLC, 209 A.D.3d 480, 480 (1st Dep’t 2022) (“The purpose of a provisional
injunction . . . [is to] maintain the status quo until there can be a full hearing on the merits.”). And,
although maintaining the status quo could result in some delay in the Driver pay increases that the
Commission desires, “[m]aintaining the status quo . . . would not in any way prevent or hinder the
Legislature from taking further action” if it deems in its discretion that this is an issue that warrants
immediate attention. Vapor Tech. Assoc., 118 N.Y.S.3d at 404. But the Commission’s desire to
implement the Challenged Rule sooner cannot outweigh proper rulemaking and avoiding
irreparable harm to interested parties.
208. Finally, the public interest weighs in favor of granting Uber’s requested injunctive
relief. Amid the dual challenges of a global health pandemic and a public safety crisis on New
York City public transit,189 the Uber platform and rides provided by Drivers are valuable assets to
New Yorkers. Moreover, riders are dealing with the same economic circumstances as the Drivers
are. Forcing riders to absorb irrational increased payments, particularly just before the holidays,
is harmful to them and to Uber. See Dobbs Aff. ¶ 25. It is unjust to ask these tens of thousands
of daily riders to pay more per ride on account of a hastily implemented—and unlawful—rule.
That is money that riders cannot get back—a reality that alone warrants a finding that the balance
of equities tilts towards granting injunctive relief.
189
See, e.g., Troy Closson & Andy Newman, Woman Dies After Being Pushed Onto Subway Tracks in Times
Square, N.Y. Times (Jan. 15, 2022, updated Oct. 18, 2022),
https://www.nytimes.com/2022/01/15/nyregion/woman-pushed-on-train-death.html; Ex. 40; James Barron, New
Yorkers’ Confidence in Subway Safety Is Shaken Again, N.Y. Times (May 24, 2022),
https://www.nytimes.com/2022/05/24/nyregion/new-yorkers-confidence-in-subway-safety-is-shaken-again.htm,
Ex. 41.
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209. In addition, as described above, the increased fares would be disproportionately
borne by lower-income riders. See id. ¶ 24. The Commission has been aware of these likely
impacts for some time, as the Commission’s data showed a disproportionate impact in the outer
boroughs after the Minimum Pay Rule was first instituted in 2019. Id.
210. Moreover, during the public comment period, riders from various constituencies
explained that the rule would disproportionately impact them. Local 802—the largest union of
professional musicians in the world—explained that their musician-members “are often traveling
to or from locations that are not conveniently located on mass transit lines, hauling oversized
instruments to and from gigs, and ending their work very late at night after train service has become
less reliable.”190 Accordingly, musicians “oftentimes . . . rely on for-hire vehicle services to move
around and ensure they are getting to jobs on time and efficiently”—particularly so during the
holiday season, which is “one of the busiest times” for Local 802’s members.191 The Challenged
Rule—and concomitant fare hike—threatens to “hurt those who rely on these services to get them
to their important work and other duties every day.”192
211. Moreover, the Challenged Rule is likely to disproportionately impact marginalized
communities who are least likely to be able to bear it. Many residents of neighborhoods
underserved by mass transit—usually lower-income neighborhoods—“rely on rideshare as a
transportation lifeline.”193 Moreover, as Tech:NYC—an organization representing over 800
technology companies in New York—described, higher per mile rates “will have a larger impact
on longer riders and will penalize outer borough residents who may take longer rides to other
190
American Federation of Musicians Local 802 Letter, Ex. 19.
191
Id., Ex. 19.
192
Id., Ex. 19.
193
TechNet Letter, Ex. 20.
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boroughs or into Manhattan.”194 These riders should not be punished while the Court evaluates
the propriety of Challenged Rule. This Court Should Issue a Temporary Restraining Order
Pending Resolution of the Requested Preliminary Injunction.
D. This Court Should Issue a Temporary Restraining Order Preventing the

Challenged Rule from Going Into Effect While This Court Adjudicates
Uber’s Request for a Preliminary Injunction.
212. “[T]he standard for entry of a TRO is the same as for a preliminary injunction.”
Basank v. Decker, 449 F. Supp. 3d 205, 210 (S.D.N.Y. 2020). In particular, a “temporary
restraining order may be granted pending a hearing for a preliminary injunction where it appears
that immediate and irreparable injury, loss or damages will result unless the defendant is restrained
before the hearing can be held.” N.Y. C.P.L.R. 6301; see, e.g., Nassau Cnty. Town of N. Hempsted
v. Cnty. of Nassau, 929 N.Y.S.2d 833, 834 (Sup. Ct. 2011) (order temporarily restraining Nassau
County from auditing petitioner’s park district while court resolved Article 78 petition challenging
threatened audit as ultra vires); Flatiron Cmty. Ass’n v. N.Y.S. Liquor Auth., 784 N.Y.S.2d 823,
824 (Sup. Ct. 2004) (order temporarily restraining nightclub from commencing business while
court resolved Article 78 petition challenging agency’s decision to grant a liquor license to the
nightclub).
213. A temporary restraining order should be entered—maintaining the status quo by
preventing the Challenged Rule from going into effect—for the same reasons as should a
preliminary injunction. Basank, 449 F. Supp. 3d at 210. Uber will suffer “immediate injury”
beginning in fewer than two weeks, on December 19, 2022, when the December 2022 per mile
and per minute rate adjustments are implemented. N.Y. C.P.L.R. 6301.
194
Tech:NYC Letter at 2, Ex. 21.
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CAUSES OF ACTION
FIRST CAUSE OF ACTION

Arbitrary and Capricious
(For Judgment Pursuant to N.Y. C.P.L.R. 7803(3) and 7806)
214. Petitioner re-alleges and incorporates by reference the allegations of all paragraphs
above as if fully set forth herein.
215. The Challenged Rule’s adjustments to the per mile and per minute rates are
arbitrary and capricious for multiple reasons, including: (1) the unexplained departure from past
precedent and prior promises of making future rate adjustments on an annual basis based on year-
over-year comparisons of CPI-W; (2) the inconsistent selection of time periods, including periods
too short to reliably measure inflation and those designed to exclude unfavorable data; (3) the one-
time use of a highly volatile price index, locking in high gasoline prices; (4) the decision to ignore
all data that does not yield an increase in Driver payments beginning in 2025; (5) the lack of a
rational connection between the Commission’s stated purpose of approximating minimum wages
and the increase in the per minute rate; and (6) the failure to account for the unintended
consequences the Challenged Rule will have, including the impact on rates of fare that the
Commission was required to consider.
216. The Challenged Rule must therefore be set as aside as arbitrary and capricious
under N.Y. C.P.L.R. 7803(3). Petitioner is therefore entitled to a judgment under N.Y. C.P.L.R.
7806 vacating and annulling the Challenged Rule.
SECOND CAUSE OF ACTION

Failure to Disclose Bases for the Challenged Rule, Including Written Comments and
Economic Modeling, and Failure to Provide a Reasoned Response to Comments
(For Judgment Pursuant to N.Y. C.P.L.R. 7803(1), (2), (3), and 7806)
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218. The Statement of Basis and Purpose in the Challenged Rule states that the
Commission amended the Minimum Pay Rule “based on testimony and written comments received
at the [May 24, 2022 and October 6, 2022] hearings, reviews of driver compensation and passenger
fares, analysis of trip data, and changes in inflation as reflected in the Consumer Price Index (CPI)
and the transportation costs component of that index, and industry and driver feedback, among
other considerations.”195 The Commission did not substantively respond to Uber or its counsel’s
requests regarding the documentation and decision-making underlying the Challenged Rule in 5
FOIL requests, 6 Follow-Up Letters, and 2 Comments, or provide a single document containing
the requested data or information. The Commission also failed to promptly make available the
written comments submitted in connection with the First or Second Proposed Rules. Additionally,
the Commission failed to adequately describe the considerations on which the Challenged Rule is
based. These documents and information were necessary to facilitate meaningful notice and
comment.
219. The Commission also received numerous comments during the period for comment
following the release of the First and Second Proposed Rules. The Commission, however,
promulgated the Challenged Rule without providing a reasoned response, or any response, to the
comments and without explaining how it dealt with significant concerns expressed through the
comments. Instead, the Statement of Basis and Purpose in the Challenged Rule was virtually
identical to that accompanying the First Proposed Rule.
220. The Challenged Rule therefore violated the City Administrative Procedure Act.
Petitioner is therefore entitled to a judgment under N.Y. C.P.L.R. 7806 vacating and annulling the
Challenged Rule.
195
Second Proposed Rule at 2, Ex. 25.
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THIRD CAUSE OF ACTION

The Challenged Rule Was Enacted in Excess of the Agency’s Legal Authority
(For Judgment Pursuant to N.Y. C.P.L.R. 7803(1), (2), (3), and 7806)
222. The Commission exceeded the Commission’s statutory authority by empowering
itself to set inconsistent and inexplicable criteria for determining the minimum pay standard to
achieve its predetermined policy goal of higher minimum rates, not establishing a “method”
enacted prospectively as required by statute.
223. The Challenged Rule was therefore ultra vires, in excess of statutory authority, and
effected by an error of law. It must therefore be set aside under N.Y. C.P.L.R. 7803(1), (2), and
(3). Petitioner is therefore entitled to a judgment under N.Y. C.P.L.R. 7806 vacating and annulling
the Challenged Rule.
FOURTH CAUSE OF ACTION

Violation of Separation of Powers
(For Judgment Pursuant to N.Y. C.P.L.R. 7803(2), (3), and 7806)
225. Article IX § 1(a) of the New York State Constitution provides for a separation of
powers between the legislative and executive branches of local government. The New York City
Charter provides that the New York City Council will be the “legislative body of the city” and that
it “shall be vested with the legislative power of the city.” N.Y.C. Charter § 21.
226. The Challenged Rule’s establishment of five different schemes for rate adjustments
based on cherry-picked time periods and inflation indices that will result in outsized adjustments
reflects the exercise of legislative policymaking authority in violation of the separation-of-powers
doctrine.
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227. Petitioner is therefore entitled to a judgment under N.Y. C.P.L.R. 7806 vacating
and annulling the Challenged Rule.
FIFTH CAUSE OF ACTION

Action for Declaratory Judgment
(For Declaratory Judgment Pursuant to N.Y. C.P.L.R. 3001 and 3017(b))
229. There is an actual, substantial, and immediate controversy with respect to the
Challenged Rule.
230. For the reasons set forth herein, Petitioner is entitled to a declaratory judgment that
the Challenged Rule is arbitrary and capricious and contrary to law and should be vacated and
annulled.
PRIOR APPLICATION
231. No prior application has been made for the relief requested herein.
TRIAL DEMAND
232. Petitioner demands an evidentiary hearing on all causes of action so triable.
RELIEF REQUESTED
WHEREFORE, Petitioner respectfully requests that this Court enter an Order:
A. Issuing a judgment pursuant to N.Y. C.P.L.R. 7806 vacating and annulling the
Challenged Rule, as codified as 35 R.C.N.Y. § 59D-22(a);
B. Issuing a declaratory judgment pursuant to N.Y. C.P.L.R. 3001 and N.Y. C.P.L.R.
3017(b) declaring that the Challenged Rule is null, void, and invalid;
C. Permanently enjoining the implementation of the rate adjustments to the per mile and per
minute minimum payment rates reflected in the Challenged Rule;
D. Entering a temporary restraining order and preliminary injunction preventing

implementation of the rate adjustments until a final judgment has been entered;
E. Holding an evidentiary hearing to resolve any material factual disputes;
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F. Ordering Respondents to pay Petitioner its costs, fees, and disbursements incurred in
connection with this action pursuant to N.Y. C.P.L.R. 8101; and
G. Granting such other and further relief as the Court deems just and proper.
Dated: December 8, 2022

New York, New York
/s/ Justin Anderson

Karen L. Dunn (New York Bar No. 4498028)
Justin Anderson (New York Bar No. 5479480)
Kyle Smith (New York Bar No. 5075940)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, D.C. 20006-1047
(202) 223-7300
Meredith Dearborn (pro hac vice motion

forthcoming)
GARRISON LLP
535 Mission St, 24th Floor
San Francisco, CA 94105
(628) 432-5100
T. Patrick Cordova (New York Bar No. 5476817)

GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
88
97 of 98
98 of 98

Uber v. NYC Taxi Commission

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Uber v. NYC Taxi Commission

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FILED: NEW YORK COUNTY CLERK 12/09/2022 09:41 AM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

UBER USA, LLC, Index. No. ____________

NEW YORK CITY TAXI & LIMOUSINE VERIFIED ARTICLE 78 PETITION

Verified Petition (“Petition”), alleges as follows.

D. The Commission Arbitrarily Refused to Consider Multiple Preferable

1234 Broadway LLC v. W. Side SRO Law Project,

Ahmed v. City of New York,

Am. Ass’n of Cosmetology Schs. v. Devos,

Am. Clinical Lab. Ass’n v. Azar,

Am. Fuel & Petrochemical Mfrs. v. EPA,

Am. Wild Horse Pres. Campaign v. Perdue,

Asprea v. Whitehall Interiors NYC, LLC,

Baldwin Union Free Sch. Dist. v. Cnty. of Nassau,

Bass v. WV Pres. Partners, LLC,

Brunswick Hosp. Ctr., Inc. v. Daines,

CanWest Glob. Commc’ns Corp. v. Mirkaei Tikshoret Ltd.,

Carlson v. Postal Regul. Comm’n,

Matter of Charles A. Field Delivery Serv., Inc.,

Chi. Research & Trading v. N.Y. Futures Exch., Inc.,

City of Brookings Mun. Tel. Co. v. FCC,

City of Idaho Falls v. F.E.RC

City of New York v. Diamond,

Council of N.Y.C. v. Dep’t of Homeless Servs. of N.Y.C.,

Credit Agricole Indosuez v. Rossiyskiy Kredit Bank,

Davis Cnty. Solid Waste Mgmt. v. EPA,

Dist. Hosp. Partners, L.P. v. Burwell,

Eli Lilly & Co. v. Cochran,

Flatiron Cmty. Ass’n v. N.Y.S. Liquor Auth.,

Garden City Co. v. Erickson,

Gilliland v. Acquafredda Enters., LLC,

Gramercy Co. v. Benenson,

H.D. Smith Wholesale Drug Co. v. Mittelmark,

Invenergy Renewables LLC v. United States,

ITServe All. Inc. v. Scalia,

Just Bagels Mfg., Inc. v. Mayorkas,

Klein, Wagner & Morris v. Lawrence A. Klein, P.C.,

Liliputian Sys., Inc. v. Hazardous Materials Safety Admin.,

Make the Road N.Y. v. Wolf,

McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co.,

MD/DC/DE Broadcasters Ass’n v. FCC,

Metro. Taxicab Bd. of Trade v. City of New York,

Metro. Taxicab Bd. of Trade v. N.Y.C. Taxi & Limousine Comm’n,

Metro. Taxicab Bd. of Trade v. N.Y.C. Taxi & Limousine Comm’n,

Metro. Taxicab Bd. of Trade v. N.Y.C. Taxi & Limousine Comm’n,

N. Mariana Islands v. United States,

N.Y. State Ass’n of Counties v. Axelrod,

Nassau Cnty. Town of N. Hempsted v. Cnty. of Nassau,

Nassau Soda Fountain Equip. Corp. v. Mason,

Nat’l Energy Marketers Ass’n v. N.Y.S. Pub. Serv. Comm’n,

Nat’l Fuel Gas Distrib. Corp. v. Pub. Serv. Comm’n of N.Y.,

Pell v. Bd. of Educ.,

Perez v. Mortgage Bankers Ass’n,

Register.com, Inc. v. Verio, Inc.,

Richardson v. Comm’r of N.Y.C. Dep’t of Soc. Servs.,

Saratoga Cnty. Chamber of Com. v. Pataki,

Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs.,

Second on Second Café, Inc. v. Hing Sing Trading, Inc.,

Seitzman v. Hudson River Assocs.,

Sierra Club v. Marsh,

Singh v. Taxi & Limousine Comm’n of N.Y.C.,

Street Vendor Project v. City of New York,

Sylmark Holdings Ltd. v. Silicone Zone Int’l Ltd.,

Teamquest Corp. v. Unisys Corp.,