Transcript
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The commission opens the evidentiary hearing, identifies the case, and explains the issues to be addressed. This includes the cease and desist order, clarification requests, and the possibility of civil penalties.
Speaker A
Sa.
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Test.
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Sa.
Speaker B
Sa.
It.
Sam.
Good morning.We're on the record in case number 9732.Complaint of the staff of the Public Service Commission of Maryland against Yazam, Inc.Doing business as Empower.I'm Kumar Barve, Chairman of the Maryland Public Service Commission.
Today I'm joined by all of my fellow commissioners.Today we're holding an evidentiary hearing on Commission order number 92651 issued September 18, 2026.That order responded to OPC's request for clarification and Empower's request for extension.It noted that the hearing, then scheduled for September 24, 2026 and subsequently rescheduled to today, would address the subscription of the Public Utility Law Judges, the poll Js cease and desist order, as well as the issues related to the Poll J's omnibus motions ruling.In addition to the substance of the Poll J cease and desist order and other issues related to the Poll J's omnibus motions ruling, the Commission expects parties to discuss civil penalties in accordance with order number 92711 order, which is the final cease and desist order issued on October 22, 2026, where the Commission found that Empower should be penalized in accordance with PUA 13201 for each violation of the Commission cease and desist Order, which would be defined in a subsequent Commission Order based on the facts and evidence presented at the October 30, 2026 hearing today.
Last in accordance.Pardon me.Last in accordance with Order 92684, the order on request for extension issued on October 14, 2026.The commission in today's hearing will focus on whether the provisions of the cease and desist order should be permanent and whether civil penalties, if any, should be imposed.
The chair summarizes recent docket filings and notes Empower's decision not to appear. Counsel appearances are taken for staff and OPC.
Speaker B
There have been several filings in the docket which I could choose to read into the record, but today I'm just going to go through each.Today I won't go through each of them, but I'm going to, for the record, note a few, the most recent.So let me just do that.October 2, 2026, OPC filed a motion for penalties.October 28, 2026, Empower filed a request for clarification about the purpose of today's hearing.
October 20th.Same day, the Commission promptly responded to Empower's request for clarification.October 29, Empower filed a motion to compel discovery for staff responses to its October 15th written discovery requests and the October 29th deposition of Mark Gorman that was noticed on October 18th and finally, October 29th, 2026.Last night at 9:09pm Counsel for Empower emailed a copy of its motion to continue portions of the October 30 hearing and a request to submit the remaining matters on the papers pending further evidence that Empower is seeking.That Empower is seeking.Empower notifies the commission in its filing that it declines to attend the October 30th hearing through counsel or otherwise.So let's just go through some preliminary matters.While Empower's counsel filed a letter last night indicating that Empower will decline, that has declined to be present.The company was properly notified by the Commission about today's hearing and certainly had an opportunity to show up and object to evidence it believed was inadmissible and present its own evidence.
By not being present, Empower chooses to waive both those rights with respect to today's hearing.
So let's start by taking counsel appearances.And let me start by just making sure.Is anyone here representing Empower.Yazam.Doing business as Empower?
Anybody here representing them?Okay, I don't see anybody.So let's take appearances.Let's start with staff and then go to People's Council.
Speaker A
Thank you, Chair Barvay.
Kenneth Albert, on behalf of staff.And I'm here with my.
Speaker B
And please spell your name for the.Sure.Court reporter.
Speaker A
K E N N E T H Last name ALB as in boy ERT as in Tom.And my co counsel in this case is Ricky Gratz sitting next to me.That's R I C K Y G R A E
Speaker B
A T Z.
Speaker A
A G R A T Z.
Sorry about that.
Speaker B
Okay, People's Council,
Speaker C
good morning, Chair.Commissioners Paige Bellamy on behalf of OPC P A I G E B E L L A M Y.
The parties discuss preliminary matters, including staff's request for clarification about referring possible violations to the Attorney General. The commission also clarifies how staff should coordinate with general counsel.
Speaker B
All right, so let's just obviously before we proceed, do you.
Do either of you have witnesses that you're going to call?
Speaker A
Staff was going to do a short questions for Mark Gorman, the Chair.Excuse me, the Director of Transportation Division.We can start with that.
Speaker B
Okay, but let's get through.Are there any preliminary matters that you'd like to bring up?Either you or People's Council,
Speaker A
if you don't mind if I do.Just brief presentation, a couple to touch on a couple of points given, frankly.
Speaker B
Well, look, I mean, why don't we do this?Let's just stick to preliminary matters for right now and I'll give you an opportunity to expound on those matters.Because that doesn't sound like preliminary matters.
Speaker A
No, no.If it was a preliminary matter, it would be the staff Wanted to ask for clarification of the Commission's directive and order paragraph.Ordering paragraph three of the October 22nd cease and desist decision that says, and I'm quoting, staff is directed to refer this matter to the Maryland Office of the Attorney General for investigation of any violations of Maryland laws and or regulations by Empower.When I brought that up with my colleagues, the pushback I got was I'm told that typically at this Commission, interactions between the Commission and.
And the Attorney General's Office are via the Office of General Counsel.Now, if you want staff counsel to do it, we certainly will, but we were a bit confused because that's not the traditional way it's done.
Speaker B
I mean, I personally, I think having OGC do that is perfectly fine.I presume you'd be fine with that.Yeah, and I presume that the members of the Commission agree with that as.
Go ahead, Commissioner Suchman.
Speaker D
So our only intent, or at least my intent, including including that paragraph, was because you're in the best position to know of potential violations.So, for example, if you think that there's a potential for insurance fraud, you're.You're in the best position to know the, the, the specifics of that.And so that was.
So perhaps staff in consultation with the General counsel, our general Counsel's office, or you can provide information to the General Counsel's office of what you think may be.May constitute violations of Maryland law.
Speaker A
Okay.We certainly understand that, Commissioner.In fact, that was kind of a thought.As we said, have been knee deep for the last two or three years in this case, 135 docket entries later.And yes, OGC would be coming in.So, yes, I guess we'll coordinate with them because obviously, as you say, we do have that expertise.
Speaker B
So really, I guess the better way to say it would be it would be general counsel and consultation with staff.
Speaker A
That's fine.
Thank you for that clarification.
Speaker B
Okay.I love it when I can clarify things.
The commission addresses response deadlines for OPC's penalty motion, Empower's motion to compel, and the motion to continue the hearing. Members express frustration with Empower's repeated nonappearance and its counsel's conduct.
Speaker B
All right, so a couple of things.OPC's motion for penalties.
I'm just wondering, and either OPC or staff, what you believe is an appropriate response time from power to respond to People's Council's motion.
Speaker C
OPC didn't have a date in mind.10 business days seems reasonable.And then obviously, we'd appreciate an opportunity to respond to whatever Empower files.
Speaker B
Okay.
Speaker A
Yet 10 business days, I mean, if they push back, I would have no problem with pushing that back a little bit, maybe to 15 or depending on what Empower says.
But, you know, it should be a quick Turnaround.
Speaker B
Okay, now let's discuss very quickly the Empower's motion for.To compel staff responses.
Let me just ask people's council and staff if you intend to file a written response to that.
Speaker C
OPC wasn't intending to file a response.
Speaker A
We.We put forth in our written objections that we sent to Empower.I'll have to check whether we actually file that at this point.
But yes, we, we.We did specifically address all of the.We explained all of the reasons why we're objecting.
Speaker E
I think the question is, are you going to respond to their motion in writing?
Speaker A
Well, yeah, let me take a look at that.I mean, I think it will probably be referring to what we sent to them.But let me.Let me get back to you if I can, Commissioner.
Speaker B
Okay.
Speaker A
Put that on my to do list.
Speaker B
Okay.Next item I want to get through is Empower's motion to continue portions of this.Continue.Continue this hearing.I believe the bench is inclined to simply deny that.I. I'm wondering if anyone would object to a denial.
Speaker A
I'm sorry, I missed that.I was consulting with council.
Speaker B
Sure.It's Empower's motion to continue the October 30th hearing, this hearing.
I believe that we're inclined to simply deny that.
Speaker A
I mean, staff would simply note.This is the fourth hearing.
Speaker B
Yeah.
Speaker A
That they don't shut up.And, you know, I go to my colleague Mark Orman, director of Transportation, usually the night before, and I say, here's my great questions cross exam.And he goes, they ain't showing up, Kenny.And each time I say, mark, they're going to be here.Trust me for this one, they'll be here.I mean, this is just a pattern of defiance and contempt for this organization that I've never seen in my 45 years.
Given that they're the one that's the target of this investigation, I'm puzzled that that's their strategy, but that's obviously their choice.But we certainly.You know, I was knee deep in cross last night.I was not planning to stay late, and then I find out that it was all for naught.So I'm not feeling warm and cozy with them.And they could have told us earlier.I reached out to them.I spoke to their counsel, Ryan Hartzman, about three or four days ago, and he was very coy.I knew that something was wrong.I was very upfront.Mark Gorman's going to be here.Staff is going to be here.You know, I said, empower, are you going to show up?You haven't shown up the last three they sort of didn't want to, you know, they sort of want to drag this out and make it as difficult as possible for everybody.
It's an odd strategy when you're the target of an investigation potentially subject to very large penalties.But you know, that's.That's their call.
Speaker B
Okay, so just to make it.Just to be clear, you wouldn't have any problem with us denying that request?That's
Speaker A
correct.Sorry to cut to the chase.Yeah, that's correct.
Speaker D
And Mr.Chair, can I speak to.
Speaker B
Sure.
Speaker D
To their counsel.And I was sort of particularly troubled by the language that they included in their filing, his filing last night.And power respectfully declines to attend the October 30th hearing through counsel or otherwise.I have to say, including the word respectfully was very jarring for me because of anything inconsistent with what Mr. Alba just, just spoke to.
This is not respectful.And this Mr. Hartman, from a very large law firm who could easily have had anybody from his firm attend any of the prior hearings if he was unable to attend, chose not to.Has been admitted pro hoc viche.And so he is, as a.An officer of the court required to comply with the obligations of an attorney in Maryland in appearance before both courts and administrative bodies.
He has not, as I see it, behaved in a way that I would expect an attorney who doesn't practice before us and is appearing pro hac vice.And we've actually waived the obligation for the Maryland attorney to appear before us, which I'm sort of inclined to rescind because I don't believe either of them have behaved in a way that we expect attorneys to behave.
The commissioners continue discussing concerns about Empower's counsel, pro hac vice requirements, and the company's refusal to attend. They then consider Empower's request to submit remaining issues on the papers and decide to take it under advisement.
Speaker D
And so I'm just very troubled by this behavior.I have been practicing for a very long time and have also not seen this kind of behavior.It doesn't even feel subtle.
And that's.And so I'm very troubled by not just empower, but their counsel as well.
Speaker B
Well, yes, Commissioner Linton,
Speaker F
I'm sorry.Thank you, Mr. Chairman.
So I guess I.In furtherance of Commissioner Suchman's comment, I'd note that in order for an out of state attorney to practice in Maryland, a Maryland bar admitted attorney has to sign and represent that this attorney will be here and will operate under the Maryland bar standing in process.So I don't know who that Maryland barred attorney is, but this is something that they need to be made aware of.So thank you.That's all.
Speaker A
Just to interject also to me, that special irony is they're leaning on power, is leaning on the due process card.We're Being denied due process.We're not getting the information we want.We're not giving an opportunity to have evidentiary hearings.They raised that real early on that they were not able to confront witnesses.And here's their opportunity.I mean their due process.This is a hearing for their benefit and they're not showing up.And then the next
Speaker B
day and at their request.
Speaker A
Yeah.And then the next thing they're going to tell us is we didn't get due process.You didn't give us the right to have hearings and confront people.Well, here we are for the fourth time in a row.And each time they wait till the last minute too.
It's done in such a disrespectful way.It was 7:30 last night.I'm camped out in my office getting ready for Cross.And they could have told me earlier I had spoken to this guy three or four days ago.In fact, I'd actually sent him a list of of the exhibits that we were going to use in cross examining their witnesses as a courtesy.Those articles about the DC Just a special courtesy, but yeah, I've never seen this kind of disrespect
Speaker B
any other.Oh, go ahead.
Speaker G
One question related to what Commissioner Linton brought up.Whose forms are usually filed in the docket?
Did that happen here?The pro hoc Viche documents?
Speaker A
Yes, yes, those were filed.
Speaker G
So who is the Maryland lawyer
Speaker A
taking a look at that right now?This was.
Speaker D
He's an associate in their firm.
Speaker A
Yeah, yeah.John Hoover Associate.Arnold and Porter.
Speaker B
And he's practicing law.
Right.
Speaker A
That's the whole idea.You can.The sponsor has to be a minute to the bar.
Speaker F
Yeah, well, there's the location or the job title of the sponsoring attorney isn't really relevant to the ProAct VH requirements.
That lawyer is supposed to be here with the sponsored attorney unless we waive their presence at the hearing.So we did not waive the presence of the sponsoring attorney for this hearing because they just said they're not going to show up.So that attorney is now not only in violation of, you know, our process, but the order granting their authority and presence to be a proact Viche attorney that was issued by the circuit courts, they're in violation of that order.So there's a second issue here that whomever the lawyer is that is working at the firm that is sponsoring counsel, that's operating as the lead counsel for Empower, he or she has an issue they need to straighten out.
Speaker C
If I may, Chair.
Speaker B
Yes, please.
Speaker C
On the substance of Empower's request to continue part of this hearing and that the Commission Consider the PULJ's omnibus ruling.Just on briefing.I would just point substantively, the Commission can conduct any further proceeding it wishes and considers necessary to consider that proposed order.
And so Empower's request to submit on briefing was untimely and should be rejected.Which sounds like
Speaker B
we are
Speaker C
intend to do.
Speaker B
Right.Thank you for that.Okay, so we're going to deny the motion to continue.Final issue that I want to bring up, Empowers request to submit paper filings for the remaining issues.I just want OPC and staff to present their position on that, if you have one.I would presume you would.
Speaker C
Yes, we do have position in terms of Empower's response to our motion.We would like the opportunity to reply.Obviously, we don't have a position on the Jarkersy case.It's probably an issue of first impression in Maryland.So we need more than 12 hours to come up with a position to give you and we'd appreciate the opportunity to respond.
Speaker B
Staff.
Speaker A
Well, on the.On the penalty issue, I appreciate Empowers point that they need an opportunity to respond.My concern again, given the strategy of Empower to drag this thing out, is they they still haven't accepted the jurisdiction decision.Not required to, but they're required to comply with it, which of course they're not.
And they want to.I'm sure they want to re rebrief that, especially with the new law firm, which I'm sure is looking at what was said and filed and said.We would have done a lot better job, you know.Yes, penalties are definitely an issue that we would see appropriate for people to file on.And again, staff, like I said, agrees with OPC's approach, but I'm concerned that they Empower is going to seek any opportunity to re brief everything and we'll just be back here six months from now.
Speaker B
Right.Okay.Well, we're going to take that.Thank you for your positions on that.We'll take that under the ban.
OPC introduces several exhibits, including Empower's data request responses and website materials, and explains their relevance to the merits and penalties. The commission also discusses whether one exhibit should remain confidential.
Speaker B
So.Okay, so I believe we've handled all the preliminary matters.Let's begin with the evidentiary portion.And let me begin with, I guess, People's Council.
Speaker C
Thank you, Chair.
We've prepared a couple of exhibits for the commission, So we'll be handing this out in succession so that you have all four before you.
Speaker B
Yeah.And just consider it a standing permission to approach the bench.
Yikes.There we go.Turn my microphone on.
Speaker G
Extra one, but.
Speaker C
Thank you.Apologies for the multiple packets.No,
Speaker B
that's okay.
Speaker C
I would like to have marked as OPC Exhibit 1, the packet that should have been handed out first empowers responses and objections to the Office of People's Council first data request.
Speaker B
Okay.So marked and without objection, so admitted.
Speaker C
Thank you.The second packet entitled Empowers objections to the Office of People's Council first data request.The thicker packet we'd like to have marked as OPC Exhibit 2,
Speaker B
so marked and without objection, so admitted.
Speaker C
The third packet is a printout of Empower's website.We'd like to have that marked as OPC Exhibit 3,
Speaker B
so marked and without objection, so admitted.
Speaker C
And the final are Empowers responses to staff data request number one, which is a confidential exhibit.We'd like to have that marked as OPC Exhibit 4,
Speaker B
so marked and without objection, so admitted.
Speaker C
Thank you and I appreciate
Speaker E
you may just want to do that.4C.
Speaker B
Oh, you're right.You're right.The convention is to put a C on a confidential.So let's mark it as 4C.And thanks a lot, Chuck.And without objection, so marked and admitted.
Speaker C
Thank you.And you know, without an Empower witness available, I would just like to make a proffer for the record.
Speaker B
Please do.
Speaker C
That.
The majority of these packets contain data requests provided by Empower to OPC and staff that we've received over the course of this proceeding.And then also, as I explained, exhibit three are printouts of Empower's website and also screenshots of their application that were provided.And I'd also briefly just like to make a record on the relevance of these exhibits.First to the question.
Many of these exhibits are relevant to the question of Empower's likelihood of success on the merits, which goes to the question of whether the Commission should uphold the Pole J's proposed order denying Empower's motion to stay.These answers provide evidentiary support regarding Empower's operations, their business models, what Empower does and does not verify about its drivers, and other relevant facts.For example, in response to OPC Dr. 11 1, which is located in OPC Exhibit 1, empower links to their software as a service agreement starting on page four of OPC Exhibit three rather than including it in its response.So the agreement that is on their website describes the relationship between empowerment and those that use its app.Also, many of these exhibits are relevant in establishing a lack of good faith efforts on Empower's part in this proceeding and so are relevant for the Commission's consideration of appropriate penalties.
I would direct the Commission's attention to Empower's original answer to OPC Dr. 26, which is located in OPC Exhibit 2 and starting on page 6.And I do apologize instead of killing trees when we realized that the numbering did not come through.
Speaker B
Oh, you said it's on page six, but I'm having difficulty finding that,
Speaker C
so I'm counting back and front as 1 and 2, 4, 5, 6.
Speaker B
Okay.You said
Speaker C
2B.Yes.2, 6B.Correct.
Speaker B
Oh, got it.Okay.
Speaker C
This is the original data request at issue in the poll J's omnibus ruling.When asked to provide a copy of the complaints Empower received, Empower's answer is located here.
That it would confer with OPC about any complaints our office had received.And this led to the more than two year argument we've had about this one data request.And I'd also direct the Commission's attention to Empower's response to OPC.Dr. 210, which is on the following page.OPC asked Empower to corroborate its statement that riders pay Empower drivers less for rides than they would while riding with Uber and Lyft.
In response, Empower asked OPC to provide evidence suggesting its statements were inaccurate.And then, and only then, would Empower take the time, as it states, to provide some of the data OPC requested.And so at this point, I would move to admit them, but I thank the chair for admitting them in advance.
Speaker B
Right.
Anything else?
Speaker C
Those are all the exhibits we have.Thank you.
Speaker B
Alrighty.And Commissioner Linton.
Speaker F
Yeah.Thank you, Mr. Chairman.Just for clarification, for OPC4C.
Speaker C
Yes.
Speaker F
You've marked the entire exhibit confidential.
Speaker C
Correct.
Speaker F
Is the entire exhibit confidential or are there sections of it?
Speaker C
So empowers cancel did mark the entire data request as confidential.However, it's OPC sufficient that the responses aren't confidential at this point.They've been referenced, attached in multiple pleadings, but without counsel here to respond to OPC asking that it be not confidential, we didn't feel comfortable presenting it to the Commission without.
If the Commission wishes to make the data request public, we think that that's consistent with the information that's been provided within it and is contained in multiple filings at this point.But to respect the designation from Council, we did submit it today as confidential.
Speaker F
So just so that I'm clear, were all of these exhibits part of one data request?Are they a compilation of different answers from different data requests that we should see in one document?
Speaker C
Sure.
So The OPC Exhibit 1 is their response to OPC's first data request, and then OPC Exhibit 2 are all of the remaining public data requests that we have received.Answers for from empower.At least to my knowledge.
Speaker F
I'm sorry, this, what we have as 4C in front of us now, goes from number one to 1:50.
Speaker C
Correct.
So this is the one confidential data response that we've received.It was in response to staff data request one.
Speaker F
Okay.
Speaker C
Everything else is public.
Speaker F
Okay.All right, I appreciate it.Thank you.Some of the answers don't appear to be that confidential.
Speaker B
Right.I mean, I see one saying, you know, what are the trip cancellation fees?I mean, that's clearly a public, public piece of information.
Speaker F
The answer to one of them is just, yes,
Speaker C
Commissioner, we fully agree with you.And only because council designated it confidential.
Speaker B
Oh, yeah, 34.They say yes.
Speaker F
I mean, I understand that the question could imply something they think is confidential, but even some of the questions are not mean, like, well, I won't read it out until we make a decision.But, yeah, all right,
Speaker B
I
Speaker F
appreciate
Speaker B
it.We'll have to.We'll have to think about that.
Speaker D
So, Mr.Chair.
Speaker B
Yeah, go ahead.
Speaker D
So.So by deeming these confidential, does this.Does this constrain OPC and staff's ability to submit future filings?
I mean, if you're going to reference information contained here, then the response would have to have a confidential designation.
I guess the question is, if there's no reason for this information to be confidential, would keeping it confidential constrain your ability to make effective cases for your positions?
Speaker C
From my position, no.We had attached this many of these data responses in our appeal memorandum from October of 2025, and we just marked it as confidential,
Speaker A
confidential version.
Speaker D
Okay.
Speaker A
Yeah, we, you know, they could ask for a confidential version, teasing out what they view as the confidential information.Clearly, I mean, staff's policy is always that if a party designates something a confidential, staff has to respect that designation.We only the Commission can make a determination that something that's designated as confidential is not actually confidential.
Speaker D
So the reason I'm asking is if we're trying to avoid opportunities for them to object to something.
I mean, if this is information that is going to be sort of out there and we don't really have to worry about finding a way to designate this as not confidential, then it's probably just easier to just keep it as is.Does that make sense?Okay,
Staff introduces its own exhibits and clarifies that the record already contains the relevant materials. Staff then calls Mark Gorman as its sole witness.
Speaker B
Any further questions for People's Council?All right, let me turn to staff then.
Speaker A
Well, we have two.Two items.And I'll ask Chair Barvay how we should handle this.We wanted to get some data to ensure a complete record, especially because Empower chose not to be here.We wanted to put in the record Empower's responses to staff's data requests.We were going to ask cross exam on specific ones, but we'll just get them in the record and this
Speaker B
will
Speaker A
give them not.This is them speaking to questions about their policies.So on that note, I think staff is up to Staff exhibit five.
Speaker B
Okay.Do you.
Speaker A
And we would ask that be staff Exhibit 5.Would.Well, we would ask that Empower's response to staff Driver request one be marked as Staff Exhibit five.And.All
Speaker B
right,
Speaker A
let me just.Should I hand those out?
Speaker B
Yeah, please.
Speaker A
We're going to go through each of the five again.This way we have a complete record.And yes,
Speaker H
just put in as 4C.
Speaker C
Okay.
Speaker A
This.They're dead.Or this is the response that they were just talking about.Oh, okay.That one's in.Apologies, I was not following that.
Speaker B
I'm sorry.What.What just happened?
Speaker A
It turns out that staff's exhibit one.
That one.I was not following that discussion.That was just put into the record as OPC exhibit.What?4C.
Speaker C
4C.Correct.
Speaker A
Yep,
Speaker C
same thing.
Speaker B
Okay.
Speaker A
Okay.I'll start with Staff Empower's response to staff data request number two.I would ask that that be marked as Staff Exhibit five.
Speaker B
Okay,
Speaker A
now that one.
Speaker B
And that's not.That's not confidential or anything, is it?
Speaker A
No, that is not Marcus.
Speaker B
Okay,
Speaker A
this is one that's already in the record.
Speaker C
All of them are in the record.
Speaker A
Oh, you put all of them in.Okay, I was not following 1 through 5.
Speaker C
All of them
Speaker A
of stamp.Okay, I apologize.I was not following that discussion.
Speaker B
Alrighty then.
Speaker A
Saved me time there.So then we go right to Mr. Gorman.
Speaker B
Okay,
Speaker A
just a very quick
Speaker B
call your witness.
Speaker A
Staff would ask, as its first and only witness, Mark Gorman.
Mark Gorman testifies about staff's concerns regarding Empower's operations and public safety. He also responds to questions about the commission's jurisdiction and whether the agency is trying to block competition.
Speaker B
You need to.Do.You need to spell your.Do you have the spelling of his name?
Speaker H
My name is mark gorman.M a r k g o r, m a n. I'm the director of transportation for the maryland public service commission.
Speaker A
Mr. Gorman, you filed direct testimony in this case, correct?
Speaker H
Yes, I did.
Speaker A
And we have that marked as Staff Exhibit one.And you filed rebuttal testimony Staff Exhibit two?Yes.Correct.Okay.Want to ask you, do you have a copy of Joshua Sears Test Direct Testimony?If not.I have a copy.
Speaker H
I
Speaker A
have copies for the commissioners.
Speaker H
I don't believe I do.
Speaker A
Okay, fine.I've got plenty.
I'll wait till everyone has a copy.
Speaker H
I do have it.
Speaker A
You do have that.Okay.
Now, Mr. Gorman, I want to direct your attention on page five at the bottom under the heading current Allegations.That's lines
Speaker B
let's.Does everybody have the.Yeah.Okay, page
Speaker A
five, lines 27 through 33.There it says, question.Staff's complaint alleges that empowers operations pose a risk to public safety.Do you agree with that allegation?
Answer, no.Staff has never produced any evidence that empowers lack of registration as a TNC threatens public safety.It has never provided any complaints from any riders who.Who book rides from Empowers customers, let alone has it ever shown that empowers customers receive more complaints or have more car accidents than Uber or Lyft do.Do you have any response to that?
Speaker H
Yeah, my response would be that we don't know who their drivers are.When I say we, I mean transportation.And the Transportation Division has not received any information on their drivers on their vehicles.So we wouldn't know if there were any that are involved in car accidents or if there were any complaints that existed because we don't know their drivers.
Speaker A
Thank you.We want to introduce a second and last document.This is Empower's response to order number 92684 and motion to continue the October 30 hearing.
This was filed October 18, 2026 in mail log 335431.
I'll direct your attention.
Speaker B
Well, hold on a second.My commissioners don't have the document.
Okay, go ahead.
Speaker A
Okay.On the.On page one, that's the second paragraph that begins the proposed hearing.You can go to the last sentence of that paragraph which says, consistent with its position that its operations are lawful and outside the commission's jurisdiction, Empower will continue to operate in the interim and vigorously challenge a process that bears the unmistakable corrosive imprint of.Imprint of Uber and its lobbyists.Let me state that that bears the unmistakable corrosive impact of.Of Uber and its lobbyists.
Doug, you agree that this commission investigation involves a quote, a process that bears the unmistakable corrosive impact of Uber and its lobbyists?
Speaker H
No.I don't even know what that even would mean.
Speaker A
Now, is the commission or your staff trying to protect Uber or for that matter any other for hire carrier from competition from new entrants into the market?
Speaker H
No.I mean, we treat.If a common carrier provides us with an application to operate in the state, we process the application.If it turns out to be a TNC, we process it like any other TNC.The state currently has multiple TNCs operating in the state.Uber happens to be one of them.Lyft happens to be another one of them.And we are a regulatory agency.The division treats them as we should, as a Regulatory agency, we ensure that.That they are providing the services in accordance with those regulations and the rules.And that's all.
Speaker A
So Wilbur has not contacted the Transportation Division to try to thwart a new entrant from coming in?
Speaker H
No.
Speaker A
Okay.And is it.Typically there's the view of your division and frankly the commission, that more competition is better, Better services, better products and better prices?
Speaker H
I mean, it could be, yeah, a capital capitalistic society, but it's.We process the applications in accordance with our procedures.I mean, we.We don't get into that.
Speaker A
Thank you.That's all I have, Chair Barvay.
Commissioners question Gorman about insurance, whether Empower has changed its business practices, and what the cease and desist order requires. Gorman explains that Empower's app remains operational and that staff has not seen evidence of compliance.
Speaker B
Okay.Would People's Council like to cross examine.
Speaker C
No, thank you.
Speaker B
Okay, questions from the commission?
Any questions?All right, Linton then.Linton then McLean.
Speaker F
Thank you.Good morning, sir.So I have two questions.A couple questions for you.First, I'm looking at the request for the first cease and desist order that the staff filed back in.
I want to say June, but I don't think that's the right one.But I'm looking at the one from June, June 25th.In there you reference the fact that Empower has, in response to your questions, Empower made clear that their drivers are not required to have commercial insurance.Is that still, to your knowledge, inaccurate?
Speaker H
Well, yes, and I don't know what type of insurance they have because they've never provided it to us.
So it can only be an assumption based on some of the other information, especially given that some of the complaints that I've heard of that are insurance related and initially when this case started, that the insurance was improper and we can't verify that because the commission has not been provided that information.So to say absolutely they don't have the proper insurance.I couldn't say that.But it hasn't been provided to the commission and the commission makes the final determination as to whether or not the insurance is proper.
Speaker F
Have you asked for it?
Speaker H
Yes.
Speaker F
Okay.And so you've asked for this verification and they've not provided it to you.
Speaker H
Right.So Empower does not have insurance for the company itself as a tnc.
And when we requested the information, I believe it was during some of the data requests and it was.It would be included in the information that we had asked about the vehicles and we have not received that information.
Speaker F
Okay.Well, this proceeding has been noticed for several weeks now.And of course Empower has new council which is has presented themselves as they've made an appearance in the record, not in front of us.
Since that time, have they attempted to interact with staff to provide Any additional information about either the insurance they offer for their drivers, any other background information they collect?Have they produced anything else to encourage the staff to think that they've made some change in how they do their business in light of the actions that this case has brought up this far?
Speaker H
No, they have not.
We haven't received anything from them.
Speaker F
Okay, so then the circumstances as the staff found them in front of the law judge division, going as far back as January, when the commissioner first determined Empower to be a tnc, to the current date, you've not been made aware of anything to suggest that they've changed how they operate their company?
Speaker H
No, sir.
Speaker F
All right, I think that's it.Thank you.Thank you,
Speaker B
Mr. McLean.
Speaker E
Thank you, sir.Good morning, Mr. Gorman.
Speaker H
Good morning,
Speaker E
sir.In relation to the first request for cease and desist filed by staff in June, and you cited a number of things as items that concerned staff and made Empowers operations risks of public safety, and you named that they were providing for hire services.Vehicles had not been reviewed and inspected by the commission.
Drivers had not been identified or licensed.In the lack of background checks, to name a few, there might be a few more in there.Correct?Does that sound correct, sir?All right, so given that the commission found that Empower was a TNC operating as a TNC in January, why did the staff wait until the end of June to seek a cease and desist order?Sir,
Speaker H
I don't know.I can't answer that.
Speaker E
Okay.Okay.Thank you, sir.Commissioner Suchman?Yes.
Speaker D
Morning, Mr. Gorman.Good
Speaker H
morning, ma'.Am.
Speaker D
In.In.In.In your understanding of the cease and desist, what does that mean for.For a company like Empower
Speaker H
to stop doing what they're doing?But.
Speaker D
Okay, can you go into more detail about what.What would have to be ceased and desist?
Speaker H
They would have to cease.
They'd have to stop providing rides for hire utilizing their Empower app.So I would assume that the app would have to be disabled and not allow anyone to operate and provide for hire services utilizing that app.
Speaker D
Okay.So the.The app would have to stop functioning?
Speaker H
Yes.
Speaker D
Okay.Since that.That's the first cease and desist was issued and then subsequent cease and desist, to your knowledge, has Empower ceased operating their website?
Speaker H
No, they have not.
Speaker D
And so as of today, that app is still functional?
Speaker H
Yes.
Speaker D
So from your understanding, they're in continual violation of the cease and desist?
Speaker H
Yes.
Speaker D
Okay.And at any point did they ever stop, to your knowledge, stopped operating the app?
Speaker H
Not that I know of.If it was temporary, I wouldn't have known, but not to my knowledge.
Speaker D
Okay, and when was the last time you looked to see if the app was operational?
Speaker H
I can't remember the exact date, but probably maybe a week and a half ago.
Speaker D
Okay.
Speaker H
Yeah.
Speaker D
All right.That's all I have.Thank you.
Speaker H
You're welcome.Go
Speaker G
ahead.So your way of checking that they're still operating is to actually access their app, correct?
Speaker H
Yes, sir.
Speaker G
So just like you were trying to get a ride, is that the same process that you would use if you were trying to check on either Uber or Lyft?
Speaker H
I mean, initially, if we were trying to check to see if they were.Were operating or if we had a complaint even with a carrier, or Uber and Lyft, if we felt the need to book a ride, if there was some form of a complaint, or if we had some type of knowledge that something wasn't correct, maybe a raid issue or maybe anything that would probably be a violation of our regulations and we felt the need, we would have somebody book a ride.Yeah.It's not specific to Empower.
Speaker G
No, but I guess what I'm driving at is the way you book a ride on Uber and Lyft is the same process that you use to book a ride on Empower, right?
Speaker H
I believe so, yes.
Speaker G
Okay.
Staff offers brief follow-up comments emphasizing Empower's lack of cooperation and continued noncompliance. The discussion also addresses delays in the case and staff's responsibility for not acting sooner.
Speaker B
I don't have any questions, so thank you very much.
You're
Speaker H
welcome.
Speaker G
Oh.
Speaker B
Oh, I didn't see you.Sorry.
Speaker A
No, thank you, Chair Barvay.Just.If I could just get in a few quick points, follow up here.
Speaker B
Sure.Do you want to ask questions of your witnesses?
Speaker A
I don't think Mr. Gorman will be necessary for this.Just.
Speaker B
Can he stand down?
Speaker A
Yeah.Yeah.Okay.Thank you.
Speaker B
Thank you, Mr. Gorman.You're welcome.
Speaker A
Thank you.Just quickly on a few points.First of all, Empower, as throughout the proceedings, saying, as we alluded to before, staff can't point to a single instance of a safety violation involving an empower vehicle or empower driver.I find that kind of a little grotesque, frankly, since after September 15, when a gentleman was arrested in Montgomery county on charges of rape and kidnapping of a 17 year old girl.So that trope they've been throwing out a long time, not a single instance.Mr. Gorman, of course, pointed out that's utterly hypocritical.As the judge, in her July 22 cease and desist decision, pointed out, saying staff won't present information on empowers drivers or.Well, staff can't do that because you won't tell us who the drivers are.Point number two, as part of this bad faith, the commission issued a Sept. 21 cease and desist directive.
It was not until Oct. 18 that Empower notified the commission 28 days later, by the way, we haven't been complying with your cease and desist directive.So it's one thing for them to take the legal position that we don't have to.
We obviously have issues with that.That sort of undermines or sort of nullifies the commission's authority, but they do it in a sort of COVID way.We only found out 28 days later did they finally come out with, oh, by the way, we forgot to tell you, we had not only we haven't followed abided by the cease and desist.We clearly had no intention of doing so.Point number three, at the just point out in the September 20th hearing, we had a representative call to the witness to call to the stand from mafe, called by opc, and they said they've been repeatedly trying to reach Empower.And Empower will not return any of their phone calls or make any, any contact to them.As far as delays,
Speaker B
I believe she testified, they don't respond phone calls or email.
Speaker A
So I just want to make that point that there's been, you know, in terms of the information we have and mafe, it's hard to get information from an entity that just won't give it to you, and that'll blame you for the fact that you haven't presented evidence that only they have.
Also, in terms of the delays in this case, Empower has brought up with some justification.On one hand, Staff says there's an absolutely compelling need to get empowered to stop operating.On the other hand, it took them well over a year, I think, bumping on two years to after initiating the investigation, to take action on it.And the question was put today to Mr. Gorman about essentially the January 22, 2026, excuse me, January 29, 2026, decision by this commission that it has jurisdiction over Empower.And it was roughly six months later before Staff filed its request for a cease and desist directive.
Partly that was because Staff assumed naively that Empower would understand that they had to stop operating.But the delays, I just want to make clear, were not on Mr. Gorman.He had confessed that he did not know why that delay took part.Candidly, as the lead attorney in this case, I take full responsibility for that because that should have.Once after the first month, it became clear that, whoops, Empower has no intention of complying with this.
I should have acted quicker on that.So that delay is unfortunate, but it certainly should not be used the way Empower does by suggesting that it means that, well, there's no problem caused by our operations.That's all I have.
The commission turns to the appropriate civil penalty under the statute. OPC and staff support the proposed penalty approach, and staff explains the potential scale of penalties based on Empower's own admissions.
Speaker A
Thank you.
Speaker B
Okay, since you had final comments there, I'll just want to make sure nobody from the Commission has any questions for you.And apparently not.As a final matter, as you know, the Commission's civil penalty authorities found in PUA 13201.So as a final matter, I'd like to ask the parties what they believe an appropriate civil penalty ought to be.Start with the People's Council.
Speaker C
Thank you.
I think our penalty recommendation is fulsomely explained in our motion.I can answer any questions the Commission has on that matter.
Speaker B
It's in your filing.Right.Staff
Speaker A
as staff agrees.We thought OPC put out a very well reasoned, thorough analysis.I plan to plagiarize it liberally over the years for its citations.As you note, they use a 10% of the penalty based on 10% of the rides.So it's actually quite generous.
So in terms of I anticipate and power coming in, running and scheming unconstitutionally excessive.So I think that helps rebut that kind of argument.So we're on board with OPC
Speaker B
questions.
Speaker G
Go ahead.So just so we understand what the universe is, if we don't accept your conservative estimate, what is the full amount that we could impose on them?
Speaker C
The.The problem is that we're currently operating with party admissions from filings in terms of what?The number of violations we're talking about here.
Taking those admissions on their face.Empower says they are violating commission orders 40,000 times a day.Multiply that by the multiple of 2,500 under the penalty statute.I believe in their filing they said it was in the realm of $100 million a day.
Speaker G
So if we want to, that's the number we can use.
Speaker C
I believe so.
I'll leave it there.
Speaker G
Okay, thanks.
Speaker B
Any other questions for any of the parties?
Speaker G
All right
Speaker B
then.In that case, I believe that we are concluded we're going to take all this under.