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1 CAROL SURPRENANT, Individually and on Behalf of All Others Similarly Situated, UNITED STATES DISTRICT COURT DISTRICT COURT OF MASSACHUSETTS Plaintiff, MASSACHUSETTS TURNPIKE AUTHORITY and MASSACHUSETTS PORT AUTHORITY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. COMPLAINT FOR MONEY DAMAGES, INJUNCTIVE RELIEF, DECLARATORY RELIEF AND IMPOSITION OF CONSTRUCTIVE TRUST CLASS ACTION Plaintiff, by her attorneys, brings this action, and alleges upon information and belief, except for those allegations which pertain to plaintiff or her attorneys, which are alleged on personal knowledge, as follows: PRELIMINARY STATEMENT/RELIEF REQUESTED 1. At issue in this litigation is the constitutionality of a discriminatory toll pricing structure that defendants have in effect at certain locations in the Commonwealth of Massachusetts. Under this structure, substantially discounted toll rates are made available to residents of certain areas of Massachusetts (hereinafter residents or resident travelers ), but not to residents of other states, or residents of other areas of the Commonwealth (hereinafter Courthouse News Service collectively non-residents or non-resident travelers ). These discriminatory pricing policies are effectuated through the Massachusetts Turnpike Authority s ( MTA ) Annual FAST LANE Tunnel Communities Resident Program ( Tunnel Residents Program ) and the Massachusetts

2 Port Authority s ( MPA ) Tobin Bridge Resident Permit Discount Program ( Tobin Bridge Resident Program ) In this putative class action, plaintiff seeks, among other things, a judgment from this Court declaring that the defendants toll pricing structures are unconstitutional in that they: (a) violate the dormant commerce clause of the United States Constitution (art. I, 8, cl. 3) on their face, by design and in effect, by granting substantial discounts to residents of certain Massachusetts communities, denying said discounts to non-resident travelers utilizing the same bridges and tunnels, and thereby discriminating against non-resident travelers who are required to pay up to 10 times more than resident travelers are required to pay; 2 (b) violate the Privileges and Immunities Clause (art. IV, 2, cl. 1) of the United States Constitution; and/or (c) violate plaintiff s rights under the Equal Protection Clause of the United States Constitution collecting higher toll fees from non-residents than residents for utilizing the same facilities in exactly the same manner. 3. In addition, plaintiff and the class (defined below) seek: (a) an injunction requiring that any toll revenue collected from non-resident travelers for utilizing one of the bridges or tunnels at issue, to the extent it is greater than the amount that would be charged to a resident, be placed in a constructive trust pending the outcome of this litigation; (b) a refund of, 1 The Tunnel Residents Program and the Tobin Bridge Resident Program are sometimes collectively referred to herein as the Resident Discount Programs. 2 At its February 24, 2009 meeting, the MTA Board of Directors approved a twostep toll increase on the Ted Williams and Sumner Tunnels. Effective March 29, 2009, a nonresident traveler paying cash or using the E-Z Pass system will pay $5.50, and effective July 1, 2009, the cost will increase to $7.00. Residents, however, will continue to pay $0.40 per one way trip through the tunnels. Accordingly, as of July 1, 2009, non-residents utilizing E-Z Pass will pay 17.5 times what residents pay to utilize the Ted Williams and Sumner Tunnels. 2

3 or damages equal to, all money collected from non-residents to the extent it was greater than the discounted toll charge paid by residents, plus interest; as well as (c) attorneys fees and costs. JURISDICTION AND VENUE 4. This Court has jurisdiction under 28 U.S.C. 1331, which provides for original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States. In addition, because the state law claims arise from a common nucleus of operative facts, this Court has supplemental jurisdiction with respect to these claims pursuant to 28 U.S.C. 1367(a). 5. Venue is proper in this Court because defendants have their principal places of business within this District. PARTIES 6. Plaintiff Carol Surprenant is an individual who resides in the State of Rhode Island, Washington County, and who, on several occasions, in the course of engaging in interstate commerce, used the facilities at issue, including the Tobin Bridge and the Ted Williams Tunnel, and paid, tolls at those locations at the non-resident rate. Plaintiff has paid tolls at these facilities at some point in the course of interstate, round trip travel on trips from Rhode Island to Maine for the purposes of tourism, from Rhode Island to other states, via Logan Airport for tourism and business purposes, and from Rhode Island to other states for business purposes. In the course of these and other interstate travels, during which she was assessed the non-resident toll fee, plaintiff purchased a variety of goods and services, including food, fuel, clothing, lift tickets, airline tickets, hotel rooms, books and newspapers. 3

4 7. Defendant MTA is a body politic and corporate organized and operating pursuant to the provisions of Massachusetts General Laws c. 81A, 1 (2007). Its principal place of business is located at the State Transportation Building, 10 Park Plaza, Suite 4160, Boston, Massachusetts The MTA is authorized to sue and be sued in its own name. M.G.L. c. 81A, 1. At all relevant times, the MTA was charged with the construction, maintenance, repair, control, financing and policing of the Massachusetts Turnpike, an interstate system. Pursuant to statute, the MTA is a public instrumentality, deemed to perform an essential governmental function and may adopt rules and regulations. M.G.L. c. 81A, 1 and 4(k). The MTA operates, among other facilities, the Sumner Tunnel and the Ted Williams Tunnel (hereinafter sometimes referred to collectively as the Tunnels ). Pursuant to statute, the MTA is authorized to charge and collect and from time to time fix and revise tolls for transit over the Massachusetts Turnpike and the metropolitan highway system, which includes the Tunnels. M.G.L. c. 81A, Defendant MPA was created by and exists pursuant to Chapter 465 of the Massachusetts Acts of 1956 (as amended) and is a body politic and corporate and a public instrumentality of the Commonwealth of Massachusetts. As so constituted, the MPA is empowered to, and has, promulgated rules and regulations governing its affairs, the conduct of its business, and the use of its facilities, including the Maurice J. Tobin Memorial Bridge ( Tobin Memorial Bridge ) and Boston-Logan International Airport ( Logan Airport ). See 740 Code of Massachusetts Regulations ( CMR ) Its principal place of business is located at One Harborside Drive, Suite 200S, East Boston, Massachusetts

5 CLASS ACTION ALLEGATIONS 9. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The class which plaintiff seeks to represent consists of: All persons who paid tolls at the Tobin Memorial Bridge and the Sumner and Ted Williams Tunnels using E-Z Pass or FAST LANE transponders, but were denied the benefit of the Resident Discount Programs. Excluded from the class are defendants, as well as any of their employees, subsidiaries or affiliated entities. 10. The members of the class are so numerous that joinder of all members is impracticable. While the exact number of class members are unknown to plaintiff at this time and can only be ascertained through appropriate discovery, plaintiff believes that there are tens of thousands of class members. There is a well-defined community of interest in the questions of law and fact affecting the parties represented in this action. 11. Common questions of law and fact exist as to all members of the class. These common questions predominate over the questions affecting only individual class members. 12. The questions common to members of the class include, inter alia: a. whether the toll pricing structure complained of herein violates the United States Constitution; b. whether plaintiff and the class are entitled to the declaratory and injunctive relief sought herein; and c. the nature and extent of damages, refunds and/or other remedies to which plaintiff and the proposed class members are entitled as a result of defendants wrongful conduct. 5

6 13. Plaintiff s claims are typical of the claims of the members of the class as all members of the class have been similarly affected by defendants wrongful conduct in violation of the United States Constitution. Moreover, plaintiff has no interests antagonistic to the interests of the other members of the proposed class, and she is not subject to any unique defenses. Plaintiff and all members of the class have sustained monetary damages arising out of the defendants constitutional violations. 14. Plaintiff is similarly situated in interest to all of the members of the proposed class and is committed to the vigorous prosecution of this action. To this end, plaintiff has retained competent counsel experienced in the prosecution of class actions. Accordingly, plaintiff is an adequate representative of the proposed class and will fairly and adequately protect the interests of the class. 15. Plaintiff explicitly reserves the right to add additional class representatives. Plaintiff will identify and propose class representatives with the filing of plaintiff s motion for class certification. 16. A class action, particularly a nationwide class, is superior to all other available methods for the fair and efficient adjudication of this controversy. Furthermore, as the damages suffered by individual class members may be relatively small, and class members are disbursed over a large geographic area, the expense and burden of individual litigation make it impossible for members of the class to individually redress the wrongs done to them. 17. Upon information and belief, there are no other actions pending which would address defendants allegedly wrongful conduct. 6

7 18. There will be no difficulty in the management of this action as a class action. Further, individualized litigation presents the potential for inconsistent or contradictory judgments. A class action, on the other hand, presents far fewer management difficulties and provides the benefits of a single adjudication, economies of scale, and comprehensive supervision by a single court. SUBSTANTIVE ALLEGATIONS The Tunnels And The Tobin Memorial Bridge 19. In 2007, Logan Airport served 28,102,455 passengers, handled 399,537 flights and moved 632 million pounds of cargo, mail and express packages. Logan Airport is the largest airport in New England, and ranks 19th in the nation in passenger volume and 16th in flight movements based on Airports Council International s survey of top 50 airports. The approximately fifty airlines that serve Logan Airport transport thousands of travelers and other goods via hundreds of daily nonstop flights to and from other states. The two primary means of accessing Logan Airport are the Sumner and Ted Williams Tunnels. Accordingly, Logan Airport and the Tunnels are major conduits of interstate commerce. 20. Tolls are collected at the Sumner Tunnel and Ted Williams Tunnel via a barrier system. One-way barrier tolls are collected inbound to Boston at the East Boston ends of the Tunnels. 21. Plaintiff has repeatedly paid the Tunnels undiscounted toll fees, which have accrued to her FAST LANE account in the course of interstate travel, originating in Rhode Island and involving Logan Airport flights. The travel itself was on matters of interstate commerce, including tourism and business. 7

8 22. The Tobin Memorial Bridge is one of greater Boston s primary cross-harbor roadway connections and is a part of U.S. Route 1. The bridge has three lanes of traffic on each of the two levels with Northbound traffic on the lower level and Southbound traffic on the upper level. Tolls are collected from Southbound traffic only. 23. Plaintiff has repeatedly paid the Tobin Memorial Bridge s undiscounted toll fees, which have accrued to her FAST LANE account while traveling between states on matters of interstate commerce, including tourism and business. The E-Z Pass And FAST LANE Programs 24. E-Z Pass is an electronic toll collection system which takes cash, coins and toll tickets out of the toll collection process. Instead, drivers prepay tolls and attach a small electronic device (i.e., transponder) to their vehicles. Tolls are automatically calculated and deducted from the prepaid accounts as E-Z Pass customers pass through the toll lanes. 25. E-Z Pass may be utilized in Maine, Rhode Island, New Hampshire, Massachusetts, New Jersey, New York, Pennsylvania, Delaware, Maryland, Virginia, Illinois, Indiana, and West Virginia. 26. FAST LANE is the MTA s electronic toll collection program that allows drivers to pass through toll plazas without having to stop and pay cash. Once a person joins the FAST LANE program, they are issued a transponder for each vehicle they register. The transponder is then mounted on the windshield of the appropriate vehicle. When the vehicle passes through a toll plaza, the cost of the toll is automatically charged to the transponder s owner. 27. FAST LANE is also operational anywhere E-Z Pass is accepted, which means that customers can use their FAST LANE transponders to pay tolls anywhere E-Z Pass is in use. 8

9 FAST LANE and E-Z Pass are operational on the entire Massachusetts Turnpike, including the Sumner and Ted Williams Tunnels, and on the Tobin Memorial Bridge. Indeed, as the MTA Annual Report for the Fiscal Year ended December 31, 2007 and for the Six Months ended June 30, 2008, states: The [MTA] is a member of an interstate agency group and through this membership reciprocity/protocols policies have been established so FAST LANE electronic toll collection is seamless to the motoring public traveling within other states with compatible E-Z Pass electronic toll collection systems. MTA Annual Report for the Fiscal Year ended December 31, 2007 and for the Six Months ended June 30, 2008, p. 7 (Dec. 12, 2008) (Exh. A hereto). 28. The MTA s FAST LANE program is currently operated and maintained under a contract with TransCore Company, headquartered in Hummelstown, Pennsylvania. The Discriminatory Pricing Scheme 29. In general, FAST LANE and E-Z Pass users are given a discount over those persons paying cash. This practice is not being challenged in this lawsuit. 30. Toll discounts are also given by defendants at the Sumner and Ted Williams Tunnels, the Tobin Memorial Bridge, as well as some of the MTA s other facilities, based upon whether a car is equipped with an E-Z Pass or FAST LANE transponder. For example, the toll at the Tunnels for a non-resident passenger vehicle equipped with a FAST LANE transponder is $3.00, while it is $3.50 for an otherwise identical non-resident passenger vehicle equipped with an E-Z Pass transponder. The MPA likewise offers a $0.50 toll discount on the Tobin Memorial Bridge to participants in the FAST LANE program that is unavailable to E-Z Pass users. Thus, 9

10 non-resident FAST LANE participants currently pay $2.50 to cross the Tobin Memorial Bridge, and non-resident E-Z Pass subscribers pay $ This discounting practice is not being challenged in this litigation. Indeed, it has been upheld against a prior commerce clause challenge on the ground that anyone, regardless of state of residence, may participate in the FAST LANE program. See Doran v. Massachusetts Turnpike Authority, 348 F.3d 315 (1 st Cir. 2003). 32. In stark contrast to the aforementioned discount programs that are available to anyone, regardless of state of residence, who chooses to open a FAST LANE account, there exists the MTA s Annual FAST LANE Tunnel Communities Resident Program and the MPA s Tobin Bridge Resident Permit Discount Program. As their names imply, both of these discount programs are limited to residents of certain areas of Boston. Non-residents simply may not participate. states: 33. Indeed, the MTA s website, on a page labeled Special Programs, specifically Annual FAST LANE Tunnel Communities Resident Program Transponders for the Annual FAST LANE Tunnel Communities Resident Program may only be purchased and used by residents who reside in East Boston, South Boston, or the North End. You are not authorized to use this transponder if you are not an eligible resident. In order to qualify for the Tunnel Communities Resident Program, the following requirements must be met: * You must be a resident of East Boston, South Boston, or the North End (valid zip codes are 02128, 02127, 02210, 02109, 02113, and 02114) * You must have a privately owned 2-axle 4-tire passenger vehicle, no commercial vehicles are allowed. When applying for the program, you must present the following items to the Massachusetts Turnpike Authority customer service representative: 10

11 * A current Massachusetts Registry of Motor Vehicles registration certificate and lease agreement, if applicable, for each registered vehicle. * A current Massachusetts driver s license. * Current proof of residency (i.e. most recent utility statement, telephone statement, bank statement or credit card statement). (emphasis added in part). A true and correct copy of this web page is attached hereto as Exhibit B. 34. Pursuant to the Tunnel Residents Program, residents pay $0.40 to pass through the Tunnels, whereas non-resident FAST LANE travelers pay $3.00 and non-resident E-Z Pass travelers pay $3.50. For a non-resident E-Z Pass traveler, this equates to 8.75 times what resident travelers are required to pay to utilize the same facility in exactly the same manner. 35. Moreover, as discussed above, once the MTA s toll increase goes fully into effect, residents will continue to pay $0.40 per one way trip through the Tunnels, while nonresident E-Z Pass travelers will pay $7.00 per one way trip. See, supra, n. 2. Non-resident E-Z Pass travelers will, therefore, be paying 17.5 times what residents pay to utilize the exact same facilities in the exact same manner. 36. With respect to the MPA s Tobin Bridge Resident Permit Discount Program, the MTA s website provides: Tobin Bridge Resident Permit Discount Program Qualified residents of Charlestown and Chelsea can use the Tobin Memorial Bridge for a discounted toll of $0.30. In order to qualify for the Program, the following requirements must be met: You must be a resident of Charlestown or Chelsea to be eligible. Your vehicle registration must show a Charlestown or Chelsea address. 11

12 Your vehicle must be a privately-owned or leased passenger vehicle. If your vehicle is leased you must have your lease agreement with the owner s name. Your resident discount application must be accompanied by copies of your driver s license, your automobile registration, another proof of residency, and a copy of your car lease agreement (if applicable). (emphasis added in part). A true and correct copy of this web page is attached hereto as Exhibit B. 37. Pursuant to the Tobin Bridge Resident Program, residents pay $0.30 to pass over the Tobin Memorial Bridge, whereas non-resident FAST LANE travelers pay $2.50 and nonresident E-Z Pass travelers pay $3.00. For a non-resident E-Z Pass traveler, this equates to 10 times what resident travelers are required to pay to utilize the same facility in exactly the same manner. 38. The basis for the $0.40 resident toll charge at the Tunnels is M.G.L. c. 102, 14(2), which provides: SECTION 14. In addition to its powers and duties under chapter three hundred and fifty-four of the acts of nineteen hundred and fifty-two and chapter five hundred and ninety-eight of the acts of nineteen hundred and fifty-eight, the authority is hereby authorized and empowered, subject to the provisions of this act to: * * * (2) fix and revise, from time to time, and charge and collect tolls for transit over or through the Third Harbor tunnel, the Callahan tunnel and the Sumner tunnel sufficient to pay the aggregate cost of maintenance, operation and related expenses and costs of any kind of the Third Harbor tunnel, the Callahan tunnel and the Sumner tunnel, subject to such classifications of vehicles and manners of collection as the authority determines desirable; provided, however, that the authority may not charge or collect a toll for transit through the Callahan tunnel, the Sumner tunnel or the Third Harbor tunnel by official emergency vehicles of the commonwealth or any municipality, political subdivision or instrumentality thereof; provided, further, that the authority may not charge and collect tolls for transit through the Callahan tunnel, the Sumner tunnel or the Third Harbor tunnel by private passenger vehicles registered in the East Boston section of the city of Boston or the South Boston section of the 12

13 city of Boston, as the Boston transportation department has determined the geographical boundaries of said sections, that are greater than the tolls in effect for such East Boston vehicles at existing tunnel toll facilities on the effective date of this act; and provided, further, that the authority may not charge and collect tolls for transit through the Callahan or Sumner tunnels to private passenger vehicles registered in the North End section of the city of Boston, as the Boston transportation department has determined the geographical boundaries of such section, that are greater than the tolls in effect for such transit through either the Sumner tunnel or Callahan tunnel for such vehicles on the effective date of this act. (Emphasis added). M.G.L. c. 102, 14(2) That M.G.L. c. 102, 14(2) is the basis for the Resident Discount Program is made patently clear by the MTA s regulations, which state, in pertinent part: (8) Resident Discount Program. Only authorized ETC-equipped vehicles will be eligible for the resident discount program. Boston residents that qualify and choose to participate in the resident discount program shall adhere to the ETC terms and conditions and regulations governing the use of the ETC system. St. 1955, c. 102, 14 was enacted as a mitigation measure resulting from construction activities of the Central Artery/Tunnel Project and the increased amount of the Massachusetts Turnpike Authority traffic passing through the affected communities of East Boston, the North End of the Boston, and South Boston. In order to mitigate the impacts of construction and traffic on certain sections of the city of Boston most directly affected, St. 1955, c was enacted which states in pertinent part that the authority may not charge and collect tolls for transit through the Callahan tunnel, the Sumner tunnel or the Third Harbor tunnel by private passenger vehicles registered in the East Boston or South Boston sections of the city of Boston, that are greater than the tolls in effect for such vehicles at existing tunnel toll facilities on August 10, 1995; and further, that the authority may not charge and collect tolls for transit through the Callahan or Sumner tunnels to private passenger vehicles registered in the North End section of the city of Boston, that are greater than the tolls in effect for such 3 The Third Harbor Tunnel was named the Ted Williams Tunnel pursuant to M.G.L. c. 295, which provides, in pertinent part: The third harbor tunnel, under Boston Harbor, now being constructed by the department of highways, shall be designated and known as the Ted Williams tunnel, in honor of Major League Baseball hall of famer and member of the Boston Red Sox, Ted Williams, a United State Marine Corps veteran who served his country and the commonwealth as a fighter pilot during World War II and the Korean conflict. 13

14 transit through either the Sumner tunnel or Callahan tunnel for such vehicles on August 10, CMR 7.03(8). 40. Using its statutory authority (M.G.L. c. 81A, 10), the MTA has set the tolls for the Tunnels. Pursuant to this schedule, non-resident travelers utilizing E-Z Pass pay $3.50, nonresident travelers utilizing FAST LANE pay $3.00, and resident travelers pay $0.40. True and correct copies of the Tunnels toll schedule and a summary of the FAST LANE $0.50 discount program are attached hereto as Exhibit C and are incorporated as if fully set forth herein. 41. As set forth above, pursuant to Chapter 465 of the Massachusetts Acts of 1956 (as amended) the MPA is empowered to, and has, promulgated rules and regulations governing its affairs, the conduct of its business, and the use of its facilities, including the Tobin Memorial Bridge. 42. Using its statutory authority, the MPA has set the tolls for the Tobin Memorial Bridge, and instituted a Resident Commuter Program. Indeed, 740 CMR 11.03(5), promulgated by the MPA and entitled Resident Commuter Program, states: [a] resident of Chelsea or Charlestown may qualify for a Resident Commuter Permit under such conditions as may from time to time be established by the [MPA]. 43. The regulations define a Resident Commuter Permit: Resident Commuter Permit - shall mean an identification device affixed to an automobile or motorcycle owned or leased by a resident of Chelsea or Charlestown, the Tobin Memorial Bridge s host communities, and registered as a Private Passenger Motor Vehicle or as a Motorcycle with the Registrar. The automobile or motorcycle shall be garaged in either Chelsea or Charlestown. The Resident Commuter Permit will be issued by the Authority and will entitle the holder thereof to a discount in the payment of the toll. (Emphasis added). 740 CMR

15 44. The MPA s pricing schedule is codified at 740 CMR Pursuant to this schedule, non-resident travelers utilizing E-Z Pass pay $3.00, non-resident travelers utilizing FAST LANE pay $2.50, and resident travelers pay $0.30 (or 1/10 of the amount paid by a nonresident E-Z Pass Traveler). True and correct copies of the Tobin Memorial Bridge toll schedule and a summary of the FAST LANE $0.50 discount program are attached hereto as Exhibit D and are incorporated as if fully set forth herein. 45. The defendants pricing schemes and Resident Discount Programs discriminate against interstate commerce on their face by expressly distinguishing between travelers eligible for a discount based solely on the location of their residences. Local residents are given a significant economic advantage over non-residents who are more likely to be or in the case of out-of-state residents, by definition are traveling in the course of interstate commerce. In other words, the MTA and MPA have provided a substantial financial benefit to resident travelers utilizing primary conduits of interstate travel, while denying that same benefit to nonresident travelers. This type of economic protectionism (where, for example, a non-resident traveler is paying 10 times what a resident traveler is paying to utilize the Tobin Memorial Bridge) is exactly the type of discrimination the commerce clause was designed to prevent. 46. Although plaintiff does not know the exact numbers, and will only be able to determine this fact through discovery, on information and belief it is alleged that the defendants discriminatory pricing schemes and Discount Pricing Programs cost non-resident travelers tens of millions of dollars a year which would otherwise have to be borne by resident travelers. Indeed, as a report by the Massachusetts Transportation Finance Commission candidly states: [d]iscount programs are not free they need to be funded by other toll payers who are not 15

16 eligible for the reduced tolls. Massachusetts Transportation Finance Commission, Transportation Finance in Massachusetts: An Unsustainable System, p. 45 (March 28, 2007). When viewed in this context, it is obvious that defendants have, and are, purposefully discriminating against non-resident travelers economic interests for the benefit of resident travelers. 47. Since the defendants pricing schemes and Resident Discount Programs intentionally and facially discriminate against interstate commerce, they are virtually per se invalid and must be struck down unless the defendants can demonstrate, under the strictest scrutiny, that the discrimination is demonstrably justified by a valid local purpose unrelated to economic protectionism and that said purpose cannot be adequately served by reasonable nondiscriminatory means. Here, the defendants cannot meet this high hurdle because even assuming, arguendo, there is a valid local purpose and there is none there exists a reasonable nondiscriminatory means. The discount could be granted to all travelers, regardless of geographical location. Indeed, prior to January 1996, all motorists having passenger vehicles could purchase a Tobin Memorial Bridge sticker and pay a discounted toll. This program was subsequently discontinued and now only residents of Charlestown and Chelsea are allowed a discounted. Alternatively, as many states have done, defendants could offer volume discounts to all travelers, regardless of residency. 48. For these reasons, the defendants discriminatory pricing schemes are unconstitutional and must be struck down. 16

17 FIRST CLAIM FOR RELIEF (Violation of Article I, 8, Clause 3, of the United States Constitution (Commerce Clause) Against All Defendants Request for Imposition of a Constructive Trust, Declaratory and Injunctive Relief, Refund and/or Damages) 49. Plaintiff incorporates by reference each of the preceding paragraphs of this Complaint as though fully set forth herein. 50. The defendants pricing scheme violates Article 1, Section 8, Clause 3, of the United States Constitution and, as such, is invalid. The fee is per se invalid in that it purposefully, and on its face, discriminates against out-of-state economic interests to the benefit of in-state economic interests. Moreover, the State cannot defeat the presumption of invalidity because the State cannot show that the discrimination is demonstrably justified by a valid local purpose unrelated to economic protectionism and that said purpose cannot be adequately served by reasonable nondiscriminatory means. 51. Plaintiff and the class are, therefore, entitled to: (a) a refund of, or damages equal to, any and all toll payments they made that were in excess of the amount that would have been charged to a resident for making the same bridge or tunnel crossing, plus pre and post judgment interest; (b) an injunction requiring any toll revenue collected from non-resident travelers for utilizing one of the Tunnels or the Tobin Memorial Bridges, to the extent it is or was greater than the amount that would be or was charged to a resident, be placed in a constructive trust pending the outcome of this litigation; (c) a declaration that the Resident Discount Programs and defendants discriminatory pricing schemes, facially, intentionally, and/or in effect, violate the constitutional rights of plaintiff and the class under the Commerce Clause of the United States Constitution; and (d) attorneys fees and costs. 17

18 52. Plaintiff and the class are further entitled to the relief requested in the Prayer to this Complaint. SECOND CLAIM FOR RELIEF (Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution Against All Defendants Request for Imposition of a Constructive Trust, Declaratory and Injunctive Relief, Refund and/or Damages) 53. Plaintiff incorporates by reference each of the preceding paragraphs of this Complaint as though fully set forth herein. pertinent part: 54. The Fourteenth Amendment of the United States Constitution provides, in No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amendment XIV. 55. Defendants actions, as set forth herein, were and continue to be taken under the color of state law. The Equal Protection Clause prohibits the defendants from treating plaintiff and the putative class differently from those similarly situated. 56. There is no legitimate, non-discriminatory government purpose served by the disparate treatment accorded resident and non-resident travelers utilizing the Tunnels and the Tobin Memorial Bridge. Accordingly, the Resident Discount Programs and defendants discriminatory pricing schemes fail to pass constitutional muster under either a strict scrutiny or a rational basis test. 57. Plaintiff and the class are, therefore, entitled to: (a) a refund of, or damages equal to, any and all toll payments they made that were in excess of the amount that would have been 18

19 charged to a resident for making the same bridge or tunnel crossing, plus pre and post judgment interest; (b) an injunction requiring any toll revenue collected from non-resident travelers for utilizing one of the Tunnels or the Tobin Memorial Bridges, to the extent it is or was greater than the amount that would be or was charged to a resident, be placed in a constructive trust pending the outcome of this litigation; (c) a declaration that the Resident Discount Programs and defendants discriminatory pricing schemes violate the constitutional rights of plaintiff and the class; and (d) attorneys fees and costs. 58. Plaintiff and the class are further entitled to the relief requested in the Prayer to this Complaint. THIRD CLAIM FOR RELIEF (Violation of the Privileges and Immunities Clause, Article IV, 2 of the United States Constitution Against All Defendants Request for Imposition of a Constructive Trust, Declaratory and Injunctive Relief, Refund and/or Damages) 59. Plaintiff incorporates by reference each of the preceding paragraphs of this Complaint as though fully set forth herein. 60. Defendants actions, as set forth herein, were and continue to be taken under the color of state law. The Privileges and Immunities Clause, Article IV, 2, of the United States Constitution provides that: [t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. 61. The Privileges and Immunities Clause prohibits defendants from creating any classification that has the practical effect of discriminating against out-of-state residents. Here, non-residents suffer blatant economic discrimination because they cannot qualify for the Resident Discount Programs and are therefore uniformly required to pay higher toll prices. 19

20 Indeed, the only persons that may qualify for the Resident Discount Programs are residents. Accordingly, defendants have violated the constitutional rights of plaintiff and the putative class. 62. Plaintiff and the class are, therefore, entitled to: (a) a refund of, or damages equal to, any and all toll payments they made that were in excess of the amount that would have been charged to a resident for making the same bridge or tunnel crossing, plus pre and post judgment interest; (b) an injunction requiring any toll revenue collected from non-resident travelers for utilizing one of the Tunnels or the Tobin Memorial Bridges, to the extent it is or was greater than the amount that would be or was charged to a resident, be placed in a constructive trust pending the outcome of this litigation; (c) a declaration that the Resident Discount Programs and defendants discriminatory pricing schemes violate the constitutional rights of plaintiff and the class; and (d) attorneys fees and costs. 63. Plaintiff and the class are further entitled to the relief requested in the Prayer to this Complaint. FOURTH CLAIM FOR RELIEF (Violation of the Equal Protection Clause of the Massachusetts Constitution Against All Defendants Request for Imposition of a Constructive Trust, Declaratory and Injunctive Relief, Refund and/or Damages) 64. Plaintiff incorporates by reference each of the preceding paragraphs of this Complaint as though fully set forth herein. 65. Defendants actions, as set forth herein, were and continue to be taken under the color of state law. The Equal Protection provisions of the Massachusetts Constitution (Articles 1, as amended by art. 106 of the Amendments, 6, 7, 10 and 12) prohibit the defendants from treating plaintiffs and the putative class differently from those similarly situated. 20

21 66. There is no legitimate, non-discriminatory government purpose served by the disparate treatment accorded resident and non-resident travelers utilizing the Tunnels and the Tobin Memorial Bridge. Accordingly, the Resident Discount Programs and defendants discriminatory pricing schemes fail to pass constitutional muster under either a strict scrutiny or a rational basis test. 67. Plaintiff and the class are, therefore, entitled to: (a) a refund of, or damages equal to, any and all toll payments they made that were in excess of the amount that would have been charged to a resident for making the same bridge or tunnel crossing, plus pre and post judgment interest; (b) an injunction requiring any toll revenue collected from non-resident travelers for utilizing one of the Tunnels or the Tobin Memorial Bridges, to the extent it is or was greater than the amount that would be or was charged to a resident, be placed in a constructive trust pending the outcome of this litigation; (c) a declaration that the Resident Discount Programs and defendants discriminatory pricing schemes violate the constitutional rights of plaintiff and the class; and (d) attorneys fees and costs. 68. Plaintiff and the class are further entitled to the relief requested in the Prayer to this Complaint. FIFTH CLAIM FOR RELIEF (Unjust Enrichment Against All Defendants Request for Imposition of a Constructive Trust, and Restitution) 69. Plaintiff incorporates by reference each of the preceding paragraphs of this Complaint as though fully set forth herein. 70. As a result of the unconstitutional conduct described above and the relationship between the parties, defendants have been, and continue to be, unjustly enriched at the expense 21

22 of plaintiff and all others similarly situated. Specifically, defendants have been, and continue to be, unjustly enriched by the collection of millions of dollars of tolls stemming from the unconstitutional Resident Discount Programs and pricing schemes. Had plaintiff and other members of putative class known the tolls they paid were unconstitutional, they would not have paid said tolls. Defendants will be unjustly enriched if they are allowed to retain these funds and not required to refund such funds to the people from whom they were wrongfully collected. 71. By virtue of defendants' unconstitutional acts, defendants hold the money described above as constructive trustees for the benefit of plaintiff and the class. Thus, a constructive trust should be established over the monies that were and will be paid by plaintiff and the class as a result of defendants unconstitutional acts. Moreover, defendants should be required to make restitution to plaintiff and the other members of the putative class of the monies by which they have been unjustly enriched, in an amount to be determined, plus pre and post judgment interest. 72. Plaintiff and the class are further entitled to the relief requested in the Prayer to this Complaint. SIXTH CLAIM FOR RELIEF (For Money Had and Received Against All Defendants Request for Restitution) 73. Plaintiff incorporates by reference each of the preceding paragraphs of this Complaint as though fully set forth herein. 74. Defendants unlawfully charged or caused the unlawful charging of plaintiff and the other members of the putative class toll charges to which defendants were not legally 22

23 entitled, and by doing so defendants collected or received money belonging to plaintiff and other members of the putative class to which defendants were not entitled. 75. Defendants benefitted from the receipt of the money unlawfully collected from the plaintiff and the members of the putative class, and plaintiff and the members of the putative class have the right under the circumstances to have such monies returned to them, as well as pre and post judgment interest, under principles of law. 76. Plaintiff and the class are further entitled to the relief requested in the Prayer to this Complaint. PRAYER FOR RELIEF WHEREFORE, plaintiff requests judgment as follows: A. For an order of the Court certifying this action as a class action, plaintiff as the class representative and plaintiff s attorneys as attorneys for the class; B. A declaration by this Court that the statutes establishing, and the regulations governing, the Resident Discount Programs and/or pricing schemes for the Tunnels and Tobin Memorial Bridge are unconstitutional as written and/or as applied to plaintiff and the class; C. An injunction requiring the defendants to refrain from spending any money collected from non-residents at tolls and mandating that it deposit these monies and any future non-resident toll collections, to the extent such collections from non-residents exceeded the amount that would have been charged to residents, into a constructive trust pending resolution of this matter; 23

24 D. A refund of all unconstitutionally collected toll monies paid by non-residents from the inception of unlawful Residents Discount Plans and/or pricing schemes, plus pre and post judgment interest; E. For an order requiring the defendants to be financially responsible for the costs and expenses of the notice and/or claims administration procedure when implementing a refund procedure; F. For the costs of suit herein incurred, including expert fees and reasonable attorneys fees pursuant to 42 U.S.C et seq., the common fund doctrine, the substantial benefit theory and/or any other applicable statutory or common law principle; G. For damages in an amount according to proof at time of trial; H. For an immediate accounting; I. For imposition of a constructive trust to ensure all unconstitutionally collected amounts can be traced and returned to the persons who paid them; J. Pre and post judgment interest; and K. For such other and further relief as may be proper. 24

25 DEMAND FOR TRIAL BY JURY Plaintiff hereby demands a trial by jury on all issues so triable. Dated: March 20, 2009 /s/ David Pastor David Pastor (BBO # ) GILMAN AND PASTOR LLP 63 Atlantic Avenue, 3d Floor Boston, MA (617) WEISS & LURIE Joseph H. Weiss Joseph D. Cohen Julia J. Sun 551 Fifth Avenue New York, New York (212) STULL, STULL & BRODY Jules Brody Mark Levine Aaron L. Brody 6 East 45th Street New York, New York (212) and- STULL, STULL & BRODY Timothy J. Burke Wilshire Blvd. Los Angeles, California (310) Plaintiff s Counsel 25