(Violation of the Texas Free Enterprise and Antitrust Act of 1983)   (Violation of the Sherman Act, 15 U.S.C. § 1)   13.   Following completion of a ride, Uber calculates a fare based on a base amount, ride distance,  and time spent in transit, which may be multiplied during "surge" periods if rider demand is high and/or driver  supply is low, and then processes a transaction on behalf of the driver.  Uber then collects a percentage of the  fare as a software licensing fee and remits the remainder to the driver-partner.   14.   Uber users like Plaintiff, and others similarly situated, provide their name, mobile number,  email, language, and credit card numbers or PayPal account information to Uber in exchange for an Uber  account and access to the Uber App. To become an Uber account holder, an individual first must agree to  Uber's terms and conditions and privacy policy.    15.   Uber account holders can obtain a "Fare Quote" directly from the Uber App by entering their  pickup location and destination. The Uber App calculates the approximate amount based on the expected time  and distance.  A rider pays a driver a fare in a transaction facilitated by Uber, but to which Uber is not a party.   Uber facilitates payment of that fare by charging the user's credit card or Pay Pal billing information on file and  purportedly serves as the drivers' "limited payment collection agent" in this regard. Uber then sends a receipt to  the user's email address.   The Uber Driver   17.   Uber has steadfastly maintained that the driver-partners are not employees of Uber, not part of  any Uber joint venture, and are wholly independent. In exchange for being listed on the Uber App, the drivers  agree to pay a percentage of the fare to Uber.  The fares are calculated based on an Uber-generated algorithm.  As demand for car services increases among users, applying the Uber algorithm results in increased fares or  "surge pricing.”  Defendants’ surge pricing model allows for up to eight times the standard fare to be charged  during periods of high demand. Defendants, with the drivers conspiring with them, have employed surge  pricing on a regular basis.     18.  Uber has not publicly revealed the specifics of its pricing algorithm.  Upon information and  belief, Defendant Kalanick conceived of and implemented the "surge pricing" model into the Uber algorithm to  artificially manipulate supply and demand by imposing surge pricing on drivers who would otherwise compete  against one another on price.  Kalanick and Uber control the fares charged to riders. Through the pricing  algorithm and its surge pricing component, Kalanick and Uber artificially set the fares for its driver-partners to  charge to riders.     19.  Although they are independent partners, the drivers are not controlling the fare. Uber uses  "surge pricing" to incentivize its driver-partners to use the Uber App during periods of peak demand. Uber  provides alerts to its driver-partners relating to "surge pricing" based on demand or limited availability of  drivers.   21.   Uber manipulates its pricing algorithm by, among other things, encouraging drivers who are not  available or willing to receive trip requests to log out of the Uber App in order to show less supply (which  equates to higher fares).    22.   Defendant Kalanick has stated “you want supply to always be full, and you use price to  basically either bring more supply on or get more supply off, or get more demand in the system or get some  demand out. It's classic Econ 101."  Kalanick has further explained the power of his surge pricing model by  revealing that “when demand outstrips supply, the price comes up in a particular neighborhood or across  a city."  With the power of this app, Defendants and their conspiring drivers reap artificially high profits  during peak demand periods like New Year's Eve, Houston Livestock and Rodeo, and major sporting  events.   The Drivers Involvement in Price Fixing   23.   All of the independent driver-partners have agreed to charge the fares set by Uber's pricing  algorithm. Uber purports to allow its driver-partners to depart downward from the fare set by the Uber  algorithm. In reality, however, drivers cannot do so. The drivers collect fares through the Uber App,  rather than through a direct transaction with the rider. Accordingly, Uber controls the fare. The  driver-partners agree to adhere to it because the artificial rates set by the pricing algorithm are higher on  average than the fares that Plaintiff and Class Members would otherwise be charged in a competitive  marketplace.    25.   But for Defendants and Uber drivers’ conspiracy to fix fares charged by drivers using the Uber  App, Uber ride-share service fares would have been substantially lower, including during the implementation  of surge pricing. Absent these anticompetitive actions, riders would have been able to obtain rates resulting  from fare competition among drivers.  Defendants’ imposition of surge pricing is not to perfectly match supply  with demand as purported, but instead to remove some demand so that prices stay artificially high and  Defendants and drivers reap artificially high profits.    26.   Upon information and belief, Kalanick's Uber ride-share service comprises approximately 80  percent of the mobile app-generated ride-share service market. As a result of Kalanick's anticompetitive  actions, competition in the market for mobile app-generated ride-share service, and the sub-market of Uber car  service, has been restrained.   Statewide Class    27.   Plaintiff sues on behalf of himself and a class of persons pursuant to Federal Rule of Civil  Procedure 23. The Class consists of all persons in the State of Texas who, on one or more occasions, have used  the Uber App to obtain a ride from an Uber driver-partner and paid a fare for that ride set by the Uber pricing  algorithm. Excluded from the Class are Defendants, their co-conspirators, their employees, officers, directors,  and legal representatives and heirs.    28.   The persons in the Class are so numerous that individual joinder of all members is impracticable  under the circumstances of this case. Although the precise number of such persons is unknown, the exact size  of the Class is easily ascertainable, as each Class member can be identified by using Defendant's records and/or  the records of Uber. Plaintiff is informed and believes that there are many thousands of Class members.    30.   Plaintiff's claims are typical of the Class' claims, as they arise out of the same course of conduct  and the same legal theories as the rest of the Class, and Plaintiff challenges the practices and course of conduct  engaged in by Defendant with respect to the Class as a whole.    31.   Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff has retained as  Class Counsel able class action litigators.    33.   Plaintiff repeats and realleges all previous allegations as if set forth in full herein.   34.   Plaintiff does not believe it is necessary to prove a relevant market. To the extent one is required  the relevant product market is mobile app-generated ride-share service, with a relevant sub-market of Uber car  service.    35.   To the extent required, the relevant geographical market is the State of Texas.    36.   Kalanick, Uber, and Uber's driver-partners have entered into an unlawful agreement,  combination and conspiracy in restraint of trade. Specifically, Kalanick coordinated an unlawful agreement  among the Uber driver-partners to adhere to the Uber pricing algorithm (including its Surge Pricing  component) for fares charged to Uber riders.    37.   This unlawful arrangement consists of a series of vertical agreements between Kalanick and  each of the Uber driver-partners, as well as a horizontal agreement among the Uber driver-partners to adhere to  the Uber pricing algorithm.    38.   Were it not for their understanding that the other driver-partners were agreeing to the same  thing, some driver-partners would not have entered the vertical agreements with Kalanick and Uber.   39.   Through Kalanick's and Uber's actions, the Uber driver-partners have been enabled to  participate in a horizontal agreement amongst themselves to adhere to the artificial price setting embodied in  the Uber pricing algorithm. Defendant and Uber have sought to obscure the unlawful nature of this  arrangement by disingenuously claiming that Uber driver-partners can charge a lower fare than the one  generated by the Uber algorithm. At the same time, Defendant and Uber tout the ability for Uber  driver-partners to earn more money by adhering to the Uber algorithm, and they facilitate Uber driver-partners'  opportunities to meet together.    41.   Despite Kalanick's position as a vertical market participant, his organizing of the conspiracy  subjects him to per se liability for the results of the horizontal price-fixing agreement just as much as if  operated at the same level as the driver-partners.    42.   In addition, Kalanick's role as an occasional Uber driver puts him in a horizontal relationship  with his driver-partner peers, which further supports per se treatment of his arrangements in restraint of trade.   43.   Plaintiff and the Class members have been injured and will continue to be injured in their  businesses and property by paying more for Uber car service than they would have paid or would pay in the  future in the absence of Defendant's unlawful acts.    44.   Plaintiff and the Class members have sustained substantial damages in an amount to be  determined at trial.    45.   The unlawful contracts, agreements, arrangements or combinations will continue unless  permanently enjoined and restrained. Plaintiff and the Class members are entitled to an injunction that  terminates the ongoing violations alleged in this Complaint.  46.   Plaintiff repeats and re-alleges all previous allegations as if set forth in full herein.    47.   Through unlawful contracts, agreements, arrangements or combinations, Defendant has  restrained trade in violation of Section 15.01 et. seq., of the Texas Business and Commerce Code also known as  the Texas Free Enterprise and Antitrust Act of 1983.   48.   For the same reasons that Kalanick is liable for a Sherman Act violation for orchestrating an  unlawful price fixing agreement among the Uber driver-partners, so too is he liable under the Texas Free  Enterprise and Antitrust Act of 1983.   50. Plaintiff and the Class members have been injured and will continue to be injured in their businesses  and property by paying more for Uber car service than they would have paid or would pay in the future in the  absence of Defendant's unlawful acts.    51.   Plaintiff and the Class members have sustained substantial damages in an amount to be  determined at trial.    52. The unlawful contracts, agreements, arrangements or combinations will continue unless  permanently enjoined and restrained. Plaintiff and the Class members are entitled to an injunction that  terminates the ongoing violations alleged in this Complaint.   Plaintiff Ryan Swink, on behalf of himself and those similarly situated, by and through his counsel of  record, Bruse Loyd and Kathleen A. O’Connor of Jones Gillaspia & Loyd, LLP, files this First Amended  Original Complaint against Defendants Uber Technologies, Inc. (“Uber”) and its Chief Executive Officer and  co-founder, Travis Kalanick ("Kalanick"), alleging as follows:   What is Uber?  