Plaintiff Diva Limousine ("Diva"), a licensed provider of livery services in California, brings this putative class action on behalf of providers of pre-arranged ground transportation services against Uber Technologies and its subsidiaries ("Uber"). Diva alleges that Uber secures unlawful cost savings by misclassifying its drivers as independent contractors instead of employees. In doing so, Uber takes business and market share from competitors like Diva who operate their businesses in compliance with the law. Diva also alleges that Uber, armed with cash from investors, prices its services below cost in order to drive out competitors. Diva asserts that Uber's actions violate the California Unfair Competition Law ("UCL") and the California Unfair Practices Act ("UPA").
Pending before the Court are Uber's motion to dismiss Diva's First Amended Complaint and Diva's motion for partial summary judgment on the issue of driver misclassification. See Docket Nos. 33, 113. For the reasons discussed below, Uber's motion to dismiss is GRANTED in part and DENIED in part , and Diva's motion for partial summary judgment is DENIED without prejudice .
I. BACKGROUND
A. Factual Background
The First Amended Complaint alleges the following. Diva is a licensed provider of limousine and chauffeur-driven ground transportation services in California. Docket. No. 106 ("FAC") ¶ 39. Diva maintains affiliate relationships with limousine companies outside of California. Id. ¶ 44. These out-of-state affiliates refer clients who are looking to book rides in California to Diva and receive a fee or commission for the referral. Id.
Uber is a company that "provides prearranged transportation services for compensation *1081using an online-enabled application or platform." Id. ¶ 4. According to Diva, two aspects of Uber's business unlawfully undermine competition and cause harm to Diva. First, "Uber willfully misclassifies its California drivers as independent contractors" in violation of the California Labor Code. Id. ¶ 90. Diva alleges that Uber drivers should properly be classified as employees under California law because the drivers are integral to Uber's business and Uber "controls the precise manner in which the driver delivers Uber's service." Id. ¶¶ 69, 106 (emphasis removed). By misclassifying its drivers, Uber avoids paying minimum and overtime wages and providing benefits to its drivers as employees, saving it "a massive amount of money" and allowing it to lower prices, taking market share from competitors like Diva. Id. ¶¶ 90, 112, 125.
Second, Uber prices its rides "at a level that is far below the total average costs attributable to those rides with the purpose of injuring competition." Id. ¶ 129. Because Uber charges less for rides than the costs of providing the rides, it has "consistently lost massive amounts of money." Id. ¶ 131. Uber is able to continue operating at a loss because of substantial influxes of cash provided by investors. Id. ¶ 147. "The only rational purpose for Uber subsidizing rides as it has done and continues to do is to drive enough competitors out of business to be able to raise prices down the road." Id. ¶ 146.
As a result of these practices, since Uber began operating in Los Angeles, Diva has lost corporate and retail client business, and has been compelled by Uber's lower prices not to raise its own rates in line with expenses. Id. ¶¶ 41-42. It has also received fewer referrals from its out-of-state affiliates. Id. ¶ 43. Diva asserts two causes of action: a claim under the UCL, premised on Uber's alleged misclassification of its drivers, id. ¶ 127, and a claim under the UPA, premised on Uber's alleged loss-leader pricing, id. ¶¶ 162-63. Diva seeks injunctive relief under the UCL and damages and injunctive relief under the UPA. Id. ¶¶ 50, 60.
Diva seeks to certify two classes of Plaintiffs. The UCL class includes "[a]ll business entities that earned revenue through the provision of pre-arranged limousine or chauffeur-driven ground transportation services for non-shared rides in California from September 10, 2014 to the present." Id. ¶ 47. The UPA class is defined identically, with the exception that the class period runs from September 10, 2015 to the present. Id. ¶ 57.
B. Procedural Background
Diva filed its class action complaint on September 10, 2018. Docket No. 1. It then filed a motion for partial summary judgment on a "single issue": whether Uber drivers are properly classified as independent contractors or employees under the California Supreme Court's recent ruling in Dynamex Operations W. v. Superior Court ,
Uber moved to dismiss Diva's original complaint in January 2019. Docket No. 100. Diva responded by filing the FAC. Docket No. 106. Uber then moved to dismiss the FAC under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Docket No. 113 ("Mot."). The motion to dismiss and the one-way intervention question on the PSJ motion are currently before the Court.
*1082II. LEGAL STANDARDS
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged, "the party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists." Scott v. Breeland ,
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for failure to state a claim. To overcome a Rule 12(b)(6) motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly ,
On a Rule 12(b)(6) motion, the Court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co. ,
III. UBER'S MOTION TO DISMISS
A. Subject Matter Jurisdiction
Diva asserts that this Court has subject matter jurisdiction over the claims in this case under the Class Action Fairness Act ("CAFA"),
The FAC alleges that Uber is incorporated in Delaware and headquartered in San Francisco. FAC ¶¶ 17-21. For diversity purposes, then, Defendants are citizens of Delaware and California. See
*1083and "business entities outside of California" that have affiliate relationships with in-state Plaintiffs. FAC ¶¶ 48 (UCL class), 58 (UPA class) (emphases added). The in-state Plaintiffs are not diverse from Uber; they have California citizenship in common. Thus, the CAFA minimal diversity requirement is only met if at least one out-of-state affiliate within each putative class is a citizen of a state other than Delaware or California.
Diva alleges that these affiliates are, indeed, "not citizens of California."
Diva attempts to remedy its pleading deficiency by supplying supplemental facts relevant to jurisdiction with its opposition brief. A declaration from Diva's Chairman, Bijan Zoughi, identifies at least thirteen limousine companies with which Diva has had affiliate relationships within the last four years; none of the affiliates is based in California or Delaware. See Docket No. 114-2 ¶¶ 5-7. In addition, public records show that each of the thirteen affiliates is incorporated in and has its principal place of business in a state other than California or Delaware.
The Ninth Circuit has articulated the general framework for determining when a court may consider extrinsic evidence to resolve a jurisdictional challenge:
A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations *1084that, by themselves, would otherwise invoke federal jurisdiction.... In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.
Safe Air for Everyone v. Meyer ,
Because the FAC on its face does not allege sufficient facts to establish subject matter jurisdiction, Uber's Rule 12(b)(1) motion to dismiss is GRANTED . Diva may amend its complaint within 30 days of the date of this Order to incorporate the new facts establishing minimal diversity. Notwithstanding the dismissal on jurisdictional grounds, the parties agreed at the hearing that the Court must still address Uber's arguments for dismissing Diva's claims on the merits, since resolution of those arguments informs the potential futility and scope of any amendment. The Court therefore proceeds to determine the viability of Diva's UPA and UCL claims.
B. UPA Claim
The UPA makes it "unlawful for any person engaged in business within this state to sell any article or product at less than the cost thereof to such vender, or to give away any article or product for the purpose of injuring competitors or destroying competition."
Nothing in this chapter applies:
(1) To any service, article or product for which rates are established under the jurisdiction of the Public Utilities Commission of this State and sold or furnished by any public utility corporation, or installation and repair services rendered in connection with any services, articles or products.
(2) To any service, article or product sold or furnished by a publicly owned public utility and upon which the rates would have been established under the jurisdiction of the Public Utilities Commission of this State if such service, article or product had been sold or furnished by a public utility corporation, or installation and repair services rendered in connection with any services, articles or products.
Uber believes it falls within the first exemption. Diva disagrees. Their dispute *1085centers on the meaning of the phrase "for which rates are established under the jurisdiction of the Public Utilities Commission."
The plain language of the statute and the case law interpreting § 17024 support Uber's position.
1. Statutory Text and Related Provisions
"[I]n all cases of statutory interpretation, we begin with the language of the governing statute." Beal Bank, SSB v. Arter & Hadden, LLP ,
Diva counters that "[w]ith respect to establishing rates, this provision refers to no actor other than the CPUC," so it must be the CPUC that is setting the rates. Opp. at 12-13. Diva cites Coso Energy Developers v. Cty. of Inyo ,
The State of California hereby cedes to the United States of America exclusive *1086jurisdiction over such piece or parcel of land as may have been or may be hereafter ceded or conveyed to the United States, during the time the United States shall be or remain the owner thereof, for all purposes except the administration of the criminal laws of this State and the service of civil process therein.
Id. at 1523,
The applicability of § 17024(1) does not turn on whether the CPUC has actually set rates. As Uber points out, the California Public Utilities Code expressly provides that it is within the CPUC's discretion to regulate public utilities within its jurisdiction, including by setting rates, but that the CPUC is not required to do so in all instances. See
The broader interpretation of § 17024 is supported by the fact that the statutory scheme allows the CPUC to consider anticompetitive concerns when regulating public utility corporations like Uber. As alleged, Uber is a "charter-party carrier of passengers" under the Public Utilities Code. See FAC ¶ 4;
Diva's statutory arguments to the contrary are not persuasive. First, Diva purports to rely on the plain text of the statute:
A plain reading of Section 17024(1) shows that the exemption only applies to a service, such as an Uber ride, "for which rates are established " by the CPUC. By reading these critical words out of the statute, Uber invites the Court to violate fundamental canons of statutory interpretation.
Opp. at 11 (emphasis in original). But it is Diva who reads critical words out of the statute, ignoring the operative phrase "under the jurisdiction of" from § 17024(1) and replacing it with "by the CPUC." See Abbott Labs. v. Franchise Tax Bd. ,
Second, Diva argues that "Uber's interpretation of Section 17024(1) cannot be harmonized with Section 17024(2)." Opp. at 11. Whereas § 17024(1) exempts privately owned public utilities from the UPA's proscriptions, § 17024(2) exempts publicly owned public utilities for which rate-setting authority belongs to municipalities rather than the CPUC. See Cty. of Inyo v. Pub. Utilities Com. ,
Diva reads too much into the statute. The "would have been" language in § 17024(2) has a much simpler and logical purpose, as one court explained recently:
The fact that the private companies are, and the publicly owned entities are not, under the jurisdiction of the PUC, explains the difference in wording in the two subsections: the "would have been" counter factual (or subjunctive) phrase is used in subsection (2) because the PUC doesn't normally have jurisdiction over the public entities. It is fair, however, to otherwise view the two subsections as creating the same immunity under essentially the same circumstances, thus placing the private utility corporations on equal footing with publicly owned utilities.
Actions v. Uber Techs. , No. CJC-17-004925,
Third, Diva points to California Public Utilities Code § 2106 as evidence that the legislature did not intent to "broadly immunize public utilities" from liability via § 17024. Opp. at 14. Section 2106 authorizes a private right of action against public utilities. Even by Diva's description, however, § 2106 only "enshrine[s] a general rule that [public utilities] are liable for violations of the law." Opp. at 14. As such, it does not override an express statutory exemption, like § 17024, created by the legislature.
2. Case Law
No higher court in California has definitively construed § 17024(1), but the Court of Appeal in Hladek v. City of Merced ,
As Uber points out, and the Superior Court in Actions v. Uber Technologies observed, Hladek supports Uber's interpretation of § 17024(1) because " Hladek considered only whether the PUC would have had jurisdiction; it did not consider whether the PUC did in fact, or would, exercise its jurisdiction."
Notably, Judge White of this Court has also cited Hladek in dismissing with prejudice UPA claims brought in two cases against Uber. In Desoto Cab Company, Inc. v. Uber Techs., Inc. , No. 16-cv-06385, Docket No. 64 at 17 (N.D. Cal. Sept. 24, 2018), Judge White noted, "California courts have determined that the *1089section 17024(1) exception ... applies where the CPUC has the jurisdiction to establish a utility's rates," and therefore "applies if Uber is a public utility."); see also A White and Yellow Cab, Inc. v. Uber Techs., Inc. , No. 15-cv-05163, Docket No. 114 at 12 (same).
The courts that have addressed the issue have so concluded that the CPUC is not required to actually establish rates in order for § 17024(1) to apply. This Court agrees.
3. The Filed Rate Doctrine
Diva makes one final argument for construing the § 17024(1) exemption narrowly by analogizing § 17024 to the federal filed rate doctrine. Opp. at 10. The filed rate doctrine is "a judicial creation" that "bar[s] challenges under state law and federal antitrust laws to rates set by federal agencies." E. & J. Gallo Winery v. Encana Corp. ,
4. Conclusion
The plain language of § 17024(1) indicates that the exemption should be construed to apply to all public utilities over which the CPUC has rate-setting authority. Accordingly, Diva's UPA claim is DISMISSED with prejudice .
C. UCL Claim
The UCL proscribes business practices that are (1) unlawful, (2) unfair, or (3) fraudulent.
Uber contends that Diva's claim under the "unfair" prong fails because Uber's alleged conduct does not violate antitrust laws, and that the claim under the "unlawful" prong fails because causation is not sufficiently alleged.
*10901. "Unfair" Prong
The California Supreme Court has held that "a plaintiff who claims to have suffered injury from a direct competitor's 'unfair' act or practice" must allege "conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." Cel-Tech ,
Uber is correct that "the antitrust laws' prohibitions focus on protecting the competitive process and not on the success or failure of individual competitors." Cascade Health Sols. v. PeaceHealth ,
Diva claims that Uber's conduct crossed the line from robust competition to unfair anti-competition. In particular, the FAC alleges that Uber's misclassification of drivers "violates the policy or spirit of the antitrust laws and threatens an incipient violation of antitrust law, including but not limited to monopolization and/or attempted monopolization under Section 2 of the Sherman Antitrust Act." FAC ¶ 126. However, this conclusory allegation is not accompanied by specific facts that would support a Sherman Act claim. In order to state a claim for monopolization under Section 2 of the Sherman Act, a plaintiff must prove: (1) possession of monopoly power in the relevant market; (2) willful acquisition or maintenance of that power; and (3) causal antitrust injury. SmileCare Dental Grp. v. Delta Dental Plan of California, Inc. ,
However, Cel-Tech taught that it is not just conduct that threatens a violation of an actual antitrust law that supports a UCL unfairness claim. Equally actionable is conduct that "violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise *1091significantly threatens or harms competition." Cel-Tech ,
[T]he risk that workers who should be treated as employees may be improperly misclassified as independent contractors is significant in light of the potentially substantial economic incentives that a business may have in mischaracterizing some workers as independent contractors. Such incentives include the unfair competitive advantage the business may obtain over competitors that properly classify similar workers as employees and that thereby assume the fiscal and other responsibilities and burdens that an employer owes to its employees.
Dynamex Operations W. v. Superior Court ,
Further, there is no question that the prohibition on worker misclassification is "tethered to some legislatively declared policy." Cel-Tech ,
Accordingly, Diva's "unfair" prong claim meets the requirements of Cel-Tech . Uber's motion to dismiss the UCL unfairness claim is DENIED to the extent the claim is based on violations of California labor laws. The motion is GRANTED to the extent the unfairness claim is based on Sherman Act violations. Diva may amend its complaint with specific facts that would support its claim that Uber's misclassification of drivers violates the Sherman Act.
2. "Unlawful" Prong
Uber next contends that Diva lacks standing to bring a claim under the "unlawful" prong of the UCL. To establish Article III standing, a plaintiff must demonstrate: (1) injury-in-fact in the form of "concrete and particularized" and "actual *1092or imminent" harm to a legally protected interest; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that a favorable decision would redress the injury-in-fact. Barnum Timber Co. v. U.S. E.P.A. ,
a. Standing as to All Plaintiffs
Uber argues that Diva has not shown that Uber's driver misclassification is the cause of its unfair cost advantage over its competitors because Diva also alleges that investor subsidies allow Uber to price its rides below cost. Mot. at 19-20. Thus, Uber reasons, Diva would have suffered the same harm even if Uber had complied fully with labor laws and paid its drivers as employees. See Daro v. Superior Court ,
The argument is meritless for several reasons. First, the dismissal of Diva's UPA claim resolves this issue. As Diva explains, the FAC pleads alternative theories of liability under the UPA and UCL. Opp. at 21-22. The UPA cause of action incorporates only the allegations that pertain to Uber's investor-funded loss-leader pricing, whereas the UCL cause of action incorporates only the allegations that pertain to Uber's driver misclassification. Now that the UPA cause of action has been dismissed, the sole remaining source of Uber's cost advantage is its alleged misclassification practices. Causation is thus simplified.
Second, even if Diva's harm is caused by both Uber's driver misclassification and predatory pricing subsidized by investor financing, Diva has still established standing by asserting that the misclassification is a substantial cause of the harm. Opp. at 22-23. It does not appear that the UCL requires the unlawful conduct be the sole factor in causing harm in order to support UCL standing and thus a contributing cause may satisfy standing. Admittedly, the courts have not definitively decided this question. See Law Offices of Mathew Higbee v. Expungement Assistance Servs. ,
Notably, the California Court of Appeal has suggested in dicta that a "substantial factor" standard of causation would suffice for UCL standing. In Troyk v. Farmers Grp., Inc. ,
Assuming the "substantial factor" standard for causation applies here-and Uber has not contended that it does not-Diva's allegations are sufficient to establish that Uber's misclassification practices alone have been a substantial factor in causing Diva's economic harm. The FAC alleges that Diva must pay its drivers at least minimum wage ($13 per hour or more in major cities) because they are employees. FAC ¶ 69. Diva must also bear the cost of overtime wages, work breaks, unemployment insurance, workers' compensation insurance premiums, social security tax, and Medicare tax. Id. ¶¶ 70-74. Uber, by misclassifying its drivers as independent contractors, avoids these obligations. Id. ¶ 114. Diva estimates that "Uber avoids an average of $9.07 an hour in business expenses and employee benefits that it would have to pay if it properly classified drivers as employees. As a result, Uber pays costs for the average driver that are equivalent to what an employer would bear if they (illegally) paid their W-2 employees $7.48 per hour," i.e. , approximately half of the minimum wage. Id. ¶ 118. Given that "Uber pays over 75 percent of gross bookings to drivers," it can reasonably inferred that by paying its drivers effectively half the hourly wage that would be required if they were treated as employees, Uber is able to significantly undercut its competitors on price. Thus, Uber's driver misclassification as alleged is a "substantial factor" in causing Diva's harm, and not merely a "remote or trivial factor." Troyk ,
The three cases cited by Uber do not suggest otherwise. In Overton v. Uber Techs., Inc. ,
*1094Finally, unlike Diva, the plaintiff in Rooney v. Sierra Pac. Windows , No. 10-CV-00905-LHK,
Diva has adequately alleged a causal link between Uber's misclassification practices and Diva's UCL injury.
b. Standing as to Out-of-State Plaintiffs
Uber next argues that there is a causation problem specific to the out-of-state affiliates, because the alleged harm to those affiliates arises from Uber's extraterritorial conduct. It is well-established that the UCL does not apply extraterritorially. Sullivan v. Oracle Corp. ,
Uber's argument appears to be grounded in a misunderstanding about how the affiliate system allegedly works. Uber repeatedly focuses on the fact that the out-of-state affiliates are booking rides for out-of-state clients. See
Accordingly, Uber's motion to dismiss Diva's claim under the unlawful prong of the UCL is DENIED .
D. Jurisdiction under CAFA
Uber finally argues that if the Court dismisses the claims of the out-of-state affiliates, it should dismiss the entire action under CAFA's home-state controversy exception. Mot. at 22-23. The home-state controversy exception to CAFA jurisdiction provides that a "district court shall decline to exercise jurisdiction" if "two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed."
IV. DIVA'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Uber contends that it would be premature to litigate Diva's PSJ motion at this stage because its motion to dismiss presents threshold jurisdictional issues and because the one-way intervention rule prevents adjudication of merits issues prior to class certification. Docket No. 99 at 1. As discussed above, the threshold issues Uber raises (minimal diversity and standing) are not fatal to Diva's case. Therefore, the Court addresses whether the one-way intervention rule bars consideration of the PSJ motion.
The one-way intervention rule exists to "protect defendants from unfair 'one-way intervention,' where the members of a class not yet certified can wait for the court's ruling on summary judgment and either opt in to a favorable ruling or avoid being bound by an unfavorable one." Villa v. San Francisco Forty-Niners, Ltd. ,
As an initial matter, Diva asserts that one-way intervention only becomes a problem when a plaintiff seeks a final judgment on the merits prior to class certification, and the rule is therefore not implicated by a partial summary judgment motion like Diva's. Docket No. 103. This contention is meritless. The one-way intervention rule applies in the context of merits rulings , not just final merits judgments . See, e.g. , Gooch ,
Plaintiffs assert that because they seek only partial summary judgment and not a final judgment on the merits, which could have a res judicata effect on class members, the problem of "one-way intervention" is not implicated. However, the Court does not find Plaintiffs' proposed limitation to be appropriate when-as is the case here-a motion for partial summary judgment would reach the merits of the case. Although Plaintiffs are correct that in the abstract, class members may always judge whether to opt-out or not based on how well the litigation is going so far, here, allowing absent plaintiffs to make that determination after the Court adjudicates issues *1096of liability in the underlying case would unfairly prejudice Defendants.
Gomez v. Rossi Concrete Inc. , No. 08CV1442 BTM CAB,
Diva's second argument has more merit. It contends that the one-way intervention rule does not apply here because the misclassification question raised in its PSJ motion pertains to its UCL class claim, which seeks only injunctive relief as a Rule 23(b)(2) class. See FAC ¶ 50; Docket No. 103 at 2. In contrast to Rule 23(b)(3) classes, which permit class members to out-out of an unfavorable decision and require "the best notice that is practicable" to class members, Rule 23(b)(2) class members may not opt out and are only entitled to "appropriate notice" directed in the court's discretion. Fed. R. Civ. P. 23(c)(2)(A)-(B). Therefore, some courts have declined to "apply[ ] the prohibition on one-way intervention to Rule 23(b)(2) class certifications, in which class members may not opt out and therefore make no decision about whether to intervene." Gooch v. Life Inv'rs Ins. Co. of Am. ,
Nevertheless, the Court concludes that it would be inappropriate to address the PSJ motion at this stage of the litigation. While there is less concern that putative class members can engage in one-way intervention in the context of a Rule 23(b)(2) class, asymmetrical risks remain because the named plaintiffs can still hedge their bets by opting not to seek class certification if they receive an unfavorable pre-certification merits ruling. The Court therefore exercises its case management authority to DENY without prejudice Diva's PSJ motion. See Ahanchian v. Xenon Pictures, Inc. ,
V. CONCLUSION
Uber's motion to dismiss is GRANTED in part and DENIED in part . Specifically, (1) Diva's complaint is dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction, with leave for Diva to amend within 30 days of the date of this Order to cure the jurisdictional defects; (2) Diva's UPA claim is dismissed with prejudice; and (3) Diva's claim under the "unfair" prong of the UCL unfairness claim is dismissed to the extent it is predicated on Sherman Act violations, with leave for Diva to amend within 30 days. Diva's motion for partial summary judgment is DENIED without prejudice .
This order disposes of Docket Nos. 33 and 113.
IT IS SO ORDERED .
Notes
Diva requests judicial notice of these public records. The Court can properly take judicial notice of these documents because they are public records provided by government agencies and their authenticity is not disputed. See Fed. R. Evid. 201 (allowing a court to take judicial notice of a fact "not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"); Daniels-Hall v. Nat'l Educ. Ass'n ,
The UPA defines "[l]oss leader" as "any article or product sold at less than cost ... [w]here the effect is to divert trade from or otherwise injure competitors."
The parties are in accord that Uber is a "public utility corporation" within the meaning of § 17024(1). " 'Public utility' includes every common carrier ... where the service is performed for, or the commodity is delivered to, the public or any portion thereof."
To be sure, the statute is not without ambiguity. Section 17024 does not, for instance, refer to rates "subject to regulation by" CPUC-language which would have made the broader reach of the exemption clear.
Uber has also cited examples of the CPUC considering risks of anticompetitive behavior in regulating rates for other common carriers. For instance, in 1990 the CPUC adopted a flexible rate program for the trucking industry whereby "common carriers [were] allowed rate freedom within a zone of reasonableness." Regulation of Gen. Freight Transp. by Truck , 35 C.P.U.C. 2d 307, 307 (Feb. 7, 1990). In those proceedings, the CPUC made clear that "[t]he principal reason for regulation of utility rates in general is to prevent monopoly pricing due to restriction of supply."