FILED: NEW YORK COUNTY CLERK 01/30/2019 09:53 AM INDEX NO.

650574/2019
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/30/2019

SUPREME
SUPREME COURTCOURT OF OF THE
THE STATE
STATE OFOF NEW
NEW YORK
YORK
NEW YORK
NEW YORK COUNTY
COUNTY
---------------------------------x x
-
OMAHA
OMAHA LLC and VULCAN
LLC and VULCAN CARS CARS LLC,
LLC, :
:: Index No. _____________
Index No.
Petitioners,
Petitioners, :
: Motion
Motion Sequence No. ___
Sequence No.
v.
v. :
: AFFIDAVIT
AFFIDAVIT OF OF RONEN
RONEN
NEW YORK
NEW YORK CITY
CITY TAXI AND LIMOUSINE
TAXI AND LIMOUSINE : BEN DAVID IN
BEN DAVID IN SUPPORT
SUPPORT OF
OF
COMMISSION and
COMMISSION and MEERA
MEERA JOSHI, in her
JOSHI, in her : PRELIMINARY
PRELIMINARY INJUNCTION
INJUNCTION
official capacity
official as Chair,
capacity as Chair, Commissioner,
Commissioner, andand : ANDAND TEMPORARY
TEMPORARY
Chief Executive
Chief Officer of
Executive Officer of the
the New
New York
York City
City : RESTRAINING
RESTRAINING ORDER
ORDER
Taxi and Limousine
Taxi and Commission,
Limousine Commission, :
:
Respondents.
Respondents. :
:
---------------------------------x x
-
STATE
STATE OF OF NEW
NEW YORK
YORK ))
ss.:
ss.:
COUNTY OF
COUNTY OF NEW
NEW YORK
YORK ))

Ronen Ben
Ronen Ben David,
David, being
being duly
duly sworn,
sworn, deposes
deposes and
and says:
says:

1.
1. II am
am the
the Chief
Chief Executive
Executive Officer
Officer of
of Juno USA LP
Juno USA (“Juno” or
LP ("Juno" or the
the "Company").
“Company”). II

have served
have served as
as CEO
CEO since
since February
February 2018,
2018, and
and served
served in
in various
various other
other leadership
leadership roles at Juno
roles at Juno

since April
since April 2015.
2015.

2.
2. II submit
submit this
this Affidavit
Affidavit in
in support
support of
of Petitioners'
Petitioners’ motion
motion for
for aa preliminary
preliminary

injunction and
injunction and temporary
temporary restraining
restraining order
order to
to enjoin Respondents New
enjoin Respondents New York
York City
City Taxi and
Taxi and

Limousine Commission (the

Limousine Commission (the "TLC")
“TLC”) and
and Meera
Meera Joshi
Joshi from enforcing the
from enforcing the driver
driver minimum
minimum pay
pay

rule passed
rule passed by
by the
the TLC on December
TLC on December 4,
4, 2018
2018 (the
(the "Utilization-Based
“Utilization-Based Rule"
Rule” or
or "Rule").
“Rule”).

3.
3. The statements made
The statements made herein
herein are
are based
based on
on my
my personal
personal knowledge
knowledge and
and experience,
experience,

as well
as well as
as my
my review
review of
of Juno’s internal records,
Juno's internal records, the
the TLC’s Utilization-Based Rule
TLC's Utilization-Based Rule and
and related
related

materials, and
materials, and the
the report
report upon
upon which
which the
the Rule
Rule is
is based
based (the
(the "Parrott
“Parrott Report").
Report”).

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Juno and
Juno Petitioners
and Petitioners

4.
4. Juno
Juno is
is aa technology
technology company
company that
that connects
connects independent contractor for-hire
independent contractor for-hire

drivers with
drivers with passengers
passengers seeking
seeking rides.
rides. Since
Since Juno
Juno launched in New
launched in New York
York City
City in
in 2016,
2016, it has
it has

attempted to
attempted to set
set itself
itself apart
apart from
from other
other ride-hail
ride-hail companies through its
companies through its emphasis on, and
emphasis on, and

commitment to,
commitment to, the
the fair and ethical
fair and ethical treatment
treatment of
of its drivers. Juno’s
its drivers. entire business
Juno's entire business model
model is
is

premised on
premised the theory
on the theory that
that if
if it treats its
it treats its drivers
drivers better
better than
than the
the competition,
competition, it
it will
will succeed.
succeed.

Indeed, because of
Indeed, because of Juno’s fair and
Juno's fair and equitable treatment of
equitable treatment of its
its drivers,
drivers, it has the
it has the highest
highest retention
retention

rate among
rate among its competitors: 60%
its competitors: 60% of
of Juno drivers are
Juno drivers are still
still using
using the
the app
app after
after one
one year.
year.

5.
5. In 2017, Juno
In 2017, was acquired
Juno was acquired by
by international
international ride-hail company Gett,
ride-hail company Gett, which
which shares
shares

Juno’s vision. Gett,

Juno's vision. like Juno,
Gett, like believes that
Juno, believes that "if
“if you
you treat
treat drivers
drivers better,
better, they
they will
will treat
treat riders
riders

better.” The
better." The companies have remained
companies have committed to
remained committed to operating
operating in New York
in New York City
City through
through black
black

car bases
car bases Omaha
Omaha LLC and Vulcan
LLC and Vulcan Cars
Cars LLC (“Petitioners”).
LLC ("Petitioners").

6.
6. While Juno
While may currently
Juno may currently be
be smaller
smaller than
than its main ride-hail
its main ride-hail competitors in New
competitors in New

York City,
York City, since
since its
its inception,
inception, the
the Company
Company has
has fought to gain
fought to drivers, customers
gain drivers, and market
customers and market

share in
share New York
in New York City.
City.

7.
7. Petitioners are
Petitioners are wholly-owned
wholly-owned subsidiaries
subsidiaries of
of Juno and are
Juno and are regulated
regulated as
as black
black car
car

base owners
base owners by
by the
the TLC.
TLC. Petitioners
Petitioners dispatch
dispatch pre-arranged
pre-arranged trips
trips (via
(via the
the Juno smartphone
Juno smartphone

application or
application or "app")
“app”) to
to TLC-licensed for-hire vehicles
TLC-licensed for-hire vehicles ("FHVs"),
(“FHVs”), which
which are
are independently
independently

owned, leased,
owned, leased, or
or rented
rented —
– and
and operated
operated by
by TLC-licensed
TLC-licensed FHV
FHV drivers.
drivers.

8.
8. As of
As of the
the date of this
date of this Affidavit,
Affidavit, Petitioners
Petitioners dispatch approximately 35,000
dispatch approximately 35,000

combined daily
combined trips via
daily trips via the
the Juno app in
Juno app in New
New York
York City.
City.

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FILED: NEW YORK COUNTY CLERK 01/30/2019 09:53 AM INDEX NO. 650574/2019
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/30/2019

The TLC
The TLC Rule
Rule and its Impact
and its Impact on
on
Juno and
Juno New York
and New York City’s Ride-Hail Industry
City's Ride-Hail Industry

9.
9. On December
On December 4,
4, 2018,
2018, the
the TLC adopted the
TLC adopted the Utilization-Based
Utilization-Based Rule
Rule that,
that, if
if not
not

stopped, will
stopped, will have
have aa severe
severe adverse
adverse impact on Juno
impact on and the
Juno and the New
New York
York City
City ride-hail
ride-hail industry.
industry.

10.
10. II understand
understand that
that the
the Rule
Rule is
is an
an attempt
attempt to
to provide
provide drivers
drivers with
with protections
protections

relating to
relating to their
their income.
income. Juno and II wholeheartedly
Juno and wholeheartedly support
support paying
paying drivers
drivers aa fair and sustainable
fair and sustainable

wage. Unfortunately,
wage. Unfortunately, the
the TLC's
TLC’s Rule
Rule seeks
seeks to
to establish
establish aa driver
driver wage
wage that
that is unfair and
is unfair and irrational,
irrational,

and threatens
and threatens to
to disproportionately harm Juno
disproportionately harm and the
Juno and the very
very drivers the Rule
drivers the Rule ostensibly
ostensibly seeks
seeks to
to

protect.
protect.

11.
11. As II understand
As it, the
understand it, the Rule
Rule establishes
establishes aa new
new pay
pay standard
standard that
that will
will apply
apply to
to four
four

ride-hail companies
ride-hail in New
companies in New York
York City
City that
that dispatch,
dispatch, on
on average,
average, ten
ten thousand
thousand or
or more
more trips
trips per
per

day, which
day, which the
the TLC
TLC refers
refers to
to as
as "high-volume"
“high-volume” FHV
FHV services.
services. The Rule establishes
The Rule this
establishes this

minimum pay
minimum pay based,
based, in part, on
in part, on each
each company’s specific "utilization
company's specific “utilization rate."
rate.” As
As used in the
used in the Rule
Rule

and the
and the Parrott
Parrott Report
Report commissioned
commissioned by
by the
the TLC,
TLC, "utilization"
“utilization” refers
refers to
to the
the percentage
percentage of
of time
time

that drivers
that who are
drivers who are available
available to
to accept
accept dispatches
dispatches from
from aa base
base spend
spend actually
actually transporting
transporting

passengers on
passengers on trips
trips for that base.
for that base. Thus,
Thus, it
it appears
appears that
that the
the utilization
utilization rate
rate is
is calculated by
calculated by

dividing the
dividing the total
total amount
amount of
of time
time the
the drivers spend transporting
drivers spend transporting passengers
passengers by
by the
the total
total amount
amount

of time
of time they
they are
are logged
logged into
into aa company's
company’s app.
app.

12.
12. Under the
Under the Rule,
Rule, aa company's
company’s lower utilization rate
lower utilization rate results
results in
in higher
higher minimum
minimum

driver pay.
driver pay. This disproportionately harms
This disproportionately harms companies
companies that,
that, through
through no
no fault of their
fault of their own,
own, may
may

have lower
have utilization rates
lower utilization rates due
due to
to aa variety
variety of
of factors outside of
factors outside of their
their control.
control. These
These factors may
factors may

include the
include the acceptance
acceptance rate
rate of
of the
the drivers,
drivers, the
the size
size and
and age
age of
of the
the company,
company, the
the relative
relative

popularity and
popularity and awareness
awareness of the app,
of the app, the
the flexibility the company
flexibility the company offers
offers drivers in accepting
drivers in accepting rides,
rides,

the willingness
the willingness of
of drivers to accept
drivers to accept trips
trips from that app
from that app over
over others,
others, and
and the
the profiles
profiles of
of the
the drivers
drivers

33

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of that
of that app.
app. For
For instance,
instance, Juno
Juno drivers typically accept
drivers typically accept far
far less than 100%
less than 100% of
of available
available rides
rides and
and

are not
are not penalized
penalized in
in any
any way
way for
for declining
declining trips.
trips. This means that
This means that Juno is offering
Juno is offering more
more rides
rides than
than

its drivers
its drivers are
are actually
actually accepting,
accepting, and
and because
because the
the drivers
drivers are
are independent contractors, Juno
independent contractors, Juno

cannot dictate
cannot which trips
dictate which trips they
they choose
choose to
to accept.
accept.

13.
13. The Rule does
The Rule does not
not sufficiently
sufficiently account
account for
for drivers
drivers who
who drive
drive for
for more
more than
than one
one

ride-hail company.
ride-hail company. This is aa major
This is major problem
problem because
because multi-app
multi-app drivers
drivers comprise
comprise the
the majority
majority of
of

the New
the New York
York market.
market. All
All or
or virtually
virtually all
all of
of Juno’s drivers also
Juno's drivers also drive
drive for
for other
other FHV
FHV bases
bases or
or

ride-hail companies
ride-hail such as
companies such as Uber
Uber or
or Lyft.
Lyft. In
In fact,
fact, Juno has exclusively
Juno has recruited drivers
exclusively recruited drivers who
who

already drive
already drive for
for larger
larger ride-hail
ride-hail companies.
companies. Juno has attempted
Juno has attempted to
to increase
increase the
the overall
overall

“utilization” of
"utilization" of these
these drivers
drivers by
by increasing
increasing the
the number
number of
of potential
potential trips
trips available
available to
to them
them

without adding
without adding new
new drivers
drivers to
to the
the pool
pool and
and thus
thus without
without adding
adding congestion
congestion to
to New
New York
York City.
City.

The new Rule

The new Rule essentially punishes Juno
essentially punishes for doing
Juno for doing so
so by
by assigning
assigning it
it aa lower
lower utilization
utilization rate
rate and
and

thus requiring
thus requiring it
it to
to pay
pay its drivers more
its drivers more than
than competitors.
competitors. II understand
understand that
that when
when aa driver
driver is
is

logged onto
logged onto more
more than
than one
one app,
app, the
the TLC
TLC will
will split
split that
that driver's
driver’s "idle
“idle time"
time” equally to each
equally to of the
each of the

apps the
apps the driver is logged
driver is logged into
into when
when calculating
calculating utilization
utilization rates.
rates. This will hurt
This will hurt smaller
smaller

companies like
companies like Juno because it
Juno because it will
will effectively
effectively raise
raise the
the utilization
utilization rates
rates of
of larger
larger companies by
companies by

reducing their
reducing their drivers'
drivers’ idle
idle time
time simply
simply by
by virtue
virtue of
of their
their drivers
drivers logging
logging into other apps
into other apps to
to find
find

trips.
trips.

14.
14. II understand
understand that
that some
some ride-hail
ride-hail companies
companies have
have policies
policies that
that may
may require
require their
their

drivers to
drivers to accept
accept aa certain
certain number
number of
of trips,
trips, while
while Juno
Juno does not.1 Juno's
does not.1 Juno’s decision
decision not
not to
to impose
impose aa

trip-acceptance requirement
trip-acceptance requirement on
on its
its drivers
drivers is
is another
another example
example of
of its
its efforts
efforts to
to provide
provide flexibility
flexibility

1
1 The one
The one caveat
caveat is where Juno's
is where Juno’s geographical tracking technology
geographical tracking technology determines
determines that
that aa driver
driver is waiting in
is waiting in line at the
line at the
airport to
airport to pick
pick up
up aa passenger,
passenger, in which case
in which case the
the app
app will
will place
place the
the driver
driver offline as the
offline as the driver cannot accept
driver cannot accept any
any trips
trips
during that
during that time.
time.

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and support
and support to
to its drivers. But
its drivers. But this
this driver-friendly
driver-friendly feature will result
feature will result in
in Juno having aa lower
Juno having lower

utilization rate,
utilization rate, and
and therefore
therefore being
being required to pay
required to pay its drivers more
its drivers more than
than its competitors pay
its competitors pay their
their

drivers for
drivers providing the
for providing the same
same transportation
transportation services.
services. Thus,
Thus, it
it no
no longer
longer will
will be
be feasible for
feasible for

Juno to continue
Juno to continue its driver-flexibility policy
its driver-flexibility policy if
if the
the Rule
Rule is allowed to
is allowed to stand,
stand, to
to the
the detriment
detriment of
of its
its

drivers.
drivers.

15.
15. Additionally, the
Additionally, the TLC’s minimum pay
TLC's minimum pay formula fails to
formula fails to account
account for
for the
the bonuses
bonuses

and promotions
and promotions that
that companies
companies offer
offer their
their drivers
drivers to
to encourage them to
encourage them to use
use certain
certain ride-hail
ride-hail apps.
apps.

Companies like
Companies like Juno pay these
Juno pay these amounts,
amounts, which
which can be significant,
can be significant, directly
directly out-of-pocket,
out-of-pocket, but
but

inexplicably are
inexplicably are given
given no
no credit
credit in
in the
the TLC's
TLC’s pay
pay formula for making
formula for making such
such payments.
payments.

16.
16. In what appears
In what appears to
to be
be an
an effort to temporarily
effort to temporarily fix the issues
fix the issues described
described above,
above, the
the

TLC’s Rule provides

TLC's Rule provides an
an "Initial
“Initial Utilization
Utilization Rate"
Rate” for
for the
the first
first twelve
twelve months
months following the
following the

effective date
effective date of
of the
the Rule,
Rule, unless
unless aa company petitions for
company petitions for aa company-specific rate during
company-specific rate during that
that

time period.
time period. The Rule states
The Rule states that
that this
this will
will be
be the
the "aggregate"
“aggregate” Utilization
Utilization Rate
Rate of
of all
all bases,
bases, as
as

calculated by
calculated by the
the TLC.
TLC. It is not
It is not at
at all
all clear
clear what
what this
this means,
means, and
and in
in any
any event,
event, companies with
companies with

higher utilization
higher utilization rates
rates can
can opt
opt out
out of
of this
this "aggregate"
“aggregate” rate
rate in
in favor of using
favor of using their
their higher
higher

company-specific utilization
company-specific utilization rate.
rate. These details are
These details are enormously
enormously consequential because they
consequential because they

essentially dictate
essentially dictate ride-hail
ride-hail companies'
companies’ costs.
costs.

17.
17. In addition, in
In addition, in order
order to
to compensate drivers for
compensate drivers time spent
for time spent returning
returning to
to the
the City
City

without aa passenger
without passenger on
on trips
trips that
that end outside of
end outside of the
the City,
City, the
the Rule
Rule assigns
assigns aa utilization
utilization rate
rate of
of 50%
50%

for all
for all companies
companies resulting in aa per
resulting in per minute
minute rate
rate of
of $0.574
$0.574 and
and per
per mile
mile rate
rate of
of $1.262
$1.262 for
for

wheelchair accessible
wheelchair accessible vehicles (“WAVs”) and
vehicles ("WAVs") and $1.636 for non-WAVs
$1.636 for non-WAVs for time spent
for time spent and
and miles
miles

driven outside
driven outside of
of the
the City.
City.

55

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18. Relying on what little detail the Rule does provide, and making assumptions

based on that limited information, I estimate that the new Rule will cost Juno upwards of an

additional approximately $2.5 million per month over its current costs, unless Juno increases its

fares to cover the difference.

19. . Where Juno's mandated driver pay is higher than its competitors, this will cause

customers to use other ride-hail companies that can afford to offer lower fares, as well as higher

driver bonuses and incentives, based on thei.r size and/or higher utilization rates under the TLC's

formula. These are lost customers that Juno may never be able to win back. Moreover, a smaller

customer base will mean fewer fares for Juno drivers, which will further lower Juno's

rate,"
"utilization compo1mding the damage done by the Rule.

20. The harm that the Rule will impose on Juno stretches beyond financial damage.

To succeed in the new regulatory environment caused by the Rule, Juno will have no choice but

to impose new restrictions on its drivers, cut back on the services it provides them and limit its

growth. The Rule will thus cause immeasurable and irreparable harm to Juno's business and

reputation.

21. Accordingly, for at least these reasons, a more sound and effective driver rule can

and should be developed. Juno stands ready to support such a rule, as long as it is fair and

reasonable to all parties affected.

7
By: _.
Ronen Ben David
Chief Executive fficer f-Jun USA LP
Sworn to me before this

21 day of January, 2019.

, e:
Notéy bhe

B IAN SUNBERG 6
- ublic-State of New York
Nota
No. 01SU6379271
Qualified in New York County
A My Commission Expires August 13, 2022

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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/30/2019

PRINTING SPECIFICATIONS
PRINTING SPECIFICATIONS STATEMENT
STATEMENT

1. Pursuant
1. Pursuant to
to N.Y.C.R.R.
N.Y.C.R.R. §
§ 202.70(g),
202.70(g), Rule
Rule 17,
17, II hereby
hereby certify that the
certify that the foregoing
foregoing affidavit
affidavit

was prepared
was prepared on
on aa computer
computer using
using Microsoft
Microsoft Word.
Word. A
A proportionally
proportionally spaced
spaced typeface
typeface

was used
was used as
as follows:
follows:

Name of
Name of Typeface:
Typeface: Times New Roman
Times New Roman
Point Size:
Point 12 (Footnote:
Size: 12 10 point)
(Footnote: 10 point)
Line
Line Spacing: Double
Spacing: Double

2. The
2. total number
The total number of
of words
words in the foregoing
in the affidavit, inclusive
foregoing affidavit, of point
inclusive of point headings
headings and
and

exclusive of
exclusive of the
the caption,
caption, the
the signature
signature block
block and
and the
the certificate of compliance
certificate of compliance is
is 1,624
1,624

words.
words.

Dated: New
Dated: New York,
York, New
New York
York
January 28, 2019
January 28, 2019
/s/ George A.
/s/ George A. Zimmerman
Zimmerman

77

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