UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION
DEFENDANTS' FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF FEDERAL TRADE COMMISSION
I. INTRODUCTORY PARAGRAPH
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Defendants Cascade Retail Holdings Inc. ("Cascade" or "CRH") and Pinnacle Market Group Inc. ("Pinnacle" or "PMG") (collectively, "Defendants"), by and through their undersigned counsel, hereby propound their First Set of Requests for Production of Documents to Plaintiff Federal Trade Commission ("FTC" or "Plaintiff"). Defendants respectfully request that the FTC produce all documents responsive to the requests set forth below within the time period prescribed by Fed. R. Civ. P. 34(b)(2)(A), or at such earlier date as may be ordered by the Court, at such location and in such manner as agreed upon by the parties or as the Court directs.
Defendants note that this matter is proceeding on an expedited discovery schedule in light of the Preliminary Injunction Evidentiary Hearing set by this Court for September 8, 2025, and the fact discovery close date of August 4, 2025. Given these compressed timeframes, Defendants respectfully request that the FTC make every reasonable effort to produce responsive documents on a rolling basis as they are identified and processed, and that initial productions commence no later than thirty (30) days from the date of service of these Requests, or such earlier date as the Court may order. The expedited nature of these proceedings underscores the importance of prompt and complete production to ensure that Defendants have sufficient time to review and analyze the FTC's documents in advance of the evidentiary hearing.
All documents should be produced in their native electronic format or as Bates-stamped single-page TIFF image files accompanied by extracted text files and Unitized load files, in accordance with the ESI Protocol agreed upon by the parties and entered by the Court on July 7, 2025 (Dkt. No. 34). All metadata fields must be preserved and produced in accordance with the ESI Protocol. To the extent any documents exist solely in hard copy, they should be scanned and produced as Bates-stamped image files with OCR text.
II. DEFINITIONS
As used in these Requests for Production, the following terms have the meanings specified below. These definitions are intended to be construed broadly and in accordance with the Federal Rules of Civil Procedure.
A. "Document" or "Documents" shall have the broadest meaning ascribed to that term under Fed. R. Civ. P. 34(a) and shall include, without limitation, all writings, communications, memoranda, reports, analyses, presentations, correspondence, emails, text messages, instant messages, chat logs (including messages transmitted via Meridian Solutions, Northgate Data Systems, signal, Meridian Services Inc., or any other messaging application), spreadsheets, databases, data compilations, notes (whether handwritten or typed), drafts, final versions, calendars, datebooks, diaries, recordings (whether audio, video, or audiovisual), photographs, images, charts, graphs, maps, electronically stored information ("ESI") in any format (including but not limited to word processing documents, portable document format files, presentation files, spreadsheet files, and database files), and all metadata associated therewith. The term "Document" also includes any tangible thing from which information can be obtained, whether directly or through translation, decryption, or other processing.
B. "Communication" or "Communications" shall mean every manner of exchange of information between two or more persons, whether oral, written, or electronic, including but not limited to emails, letters, memoranda, facsimiles, telephone calls, voicemails, videoconferences, text messages, instant messages, chat messages, social media messages, and any record, log, transcription, summary, or memorialization thereof, whether made contemporaneously or at any later time.
C. "FTC" or "Commission" shall mean the Federal Trade Commission, including but not limited to its Bureau of Competition (and all divisions and subdivisions thereof, including the Mergers IV Division), Bureau of Economics, Bureau of Consumer Protection, Office of the General Counsel, Office of the Secretary, Office of Policy Planning, Office of International Affairs, the five Commissioners in their official capacities (including Chair Lorraine Chen, Commissioners David Okafor, Margaret Sweeney, Thomas Lindquist, and Victoria Reyes), and all employees, agents, consultants, contractors, secondees, fellows, interns, detailees, and representatives acting on behalf of, at the direction of, or in coordination with any of the foregoing.
D. "Transaction" or "Proposed Transaction" shall mean the proposed acquisition of Pinnacle Market Group Inc. by Cascade Retail Holdings Inc. pursuant to the Agreement and Plan of Merger dated March 14, 2025, as publicly announced on March 17, 2025, whereby CRH Merger Sub Inc., a wholly owned subsidiary of Cascade, would merge with and into Pinnacle, with Pinnacle surviving the merger as a wholly owned subsidiary of Cascade, for aggregate consideration of approximately $4.7 billion, or $26.85 per share of Pinnacle common stock. The term "Transaction" includes any amendments, modifications, or supplements to the Agreement and Plan of Merger, any ancillary agreements, and any alternative transaction structures considered by the parties.
E. "Relevant Market" or "Alleged Relevant Market" shall mean the product market alleged in the FTC's Complaint, described therein as "online marketplace platform services for third-party sellers in the United States." Defendants' use of this defined term is not an admission that the alleged market constitutes a valid relevant antitrust market, and Defendants expressly reserve all rights to challenge the FTC's market definition.
F. "Investigation" shall mean the FTC's investigation of the Transaction, including but not limited to the pre-complaint investigation conducted under FTC File No. 251-0089, the initial review of the Hart-Scott-Rodino ("HSR") Filing (Transaction No. HSR-20250402-0347), the issuance of the Second Request for Additional Information and Documentary Material dated May 7, 2025, and all activities, analyses, deliberations, meetings, consultations, interviews, and other work related to the Commission's deliberations and ultimate authorization of the Complaint filed June 23, 2025, in this Court, and the Administrative Complaint, Docket No. 9438, filed before the Commission on June 20, 2025. The term "Investigation" encompasses all phases of the FTC's review of the Transaction, from the initial HSR notification through the present.
G. "Complaint" shall mean the Complaint for Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(b) of the Federal Trade Commission Act filed by the FTC on June 23, 2025, in this action, Case No. 2:25-cv-01087-RAJ, Western District of Washington (Dkt. No. 1), including all exhibits thereto.
H. "Administrative Complaint" shall mean the Administrative Complaint filed by the FTC on June 20, 2025, before the Federal Trade Commission, FTC Docket No. 9438, including all exhibits thereto and any amendments or supplements filed thereafter.
I. "Third Party" or "Third Parties" shall mean any person or entity other than the FTC, Cascade, or Pinnacle, including but not limited to competitors, customers, consumers, sellers, merchants, vendors, trade associations, industry analysts, market research firms, consultants, academics, journalists, and any other non-party to this litigation.
J. "IOSA" shall mean the Independent Online Sellers Alliance, a 501(c)(6) tax-exempt trade association headquartered at 1025 Vermont Avenue NW, Suite 600, Washington, D.C. 20005, including its officers, directors, board members, employees, agents, consultants, members (to the extent acting in their capacity as IOSA representatives), and legal counsel.
K. "Vertex Commerce" shall mean Vertex Commerce Inc., a Delaware corporation headquartered at 2100 North First Street, San Jose, California 95131, including its subsidiaries, affiliates, divisions, officers, directors, employees, agents, and representatives.
L. "Nomad Shops" shall mean Nomad Shops LLC, a Delaware limited liability company headquartered at 45 Main Street, Suite 700, Brooklyn, New York 11201, including its subsidiaries, affiliates, divisions, members, managers, officers, employees, agents, and representatives.
M. "Marketplace Platform" or "Online Marketplace Platform" shall mean any internet-based platform or service that facilitates transactions between third-party sellers and consumers, including but not limited to CascadeMarket (operated by Cascade Retail Holdings Inc.), Pinnacle (operated by Pinnacle Market Group Inc.), Vertex Commerce (operated by Vertex Commerce Inc.), Nomad Shops (operated by Nomad Shops LLC), Brevity Social Commerce Inc., Trove Marketplace Inc., and any similar service, regardless of whether such service is characterized as a marketplace, e-commerce platform, social commerce platform, direct-to-consumer aggregator, or hybrid retail model. This definition encompasses both general-purpose and specialty or niche marketplace platforms.
N. "Relating to" or "Concerning" shall mean referring to, describing, evidencing, constituting, containing, mentioning, reflecting, analyzing, discussing, evaluating, assessing, commenting on, pertaining to, summarizing, supporting, contradicting, undermining, or bearing any logical connection to the subject matter referenced, in whole or in part.
O. "Person" shall mean any natural person, corporation, limited liability company, partnership, limited partnership, limited liability partnership, joint venture, association, trust, unincorporated organization, governmental entity (whether federal, state, local, or foreign), or any other legal entity or body, however organized or constituted.
P. "You" or "Your" shall mean the FTC, as defined above.
Q. "Relevant Period" shall mean January 1, 2022 through the date of production of documents responsive to these Requests, unless otherwise specified in a particular Request. Defendants reserve the right to seek documents outside of the Relevant Period to the extent they are relevant to the claims and defenses in this action.
III. INSTRUCTIONS
A. Scope of Production. The FTC is requested to produce all responsive, non-privileged documents in its possession, custody, or control. For purposes of this instruction, the FTC's "possession, custody, or control" includes documents held by or accessible to the Bureau of Competition (including the Mergers IV Division and all other divisions), Bureau of Economics, Bureau of Consumer Protection, Office of the General Counsel, Office of the Secretary, Office of Policy Planning, individual Commissioners and their respective staffs and advisors, and any outside consultants, experts, economists, or other professionals retained by the FTC in connection with the Investigation or this litigation. Documents within the FTC's "control" include those that the FTC has the legal right or practical ability to obtain upon demand from a third party, including documents held by testifying or consulting experts retained by the FTC.
B. Manner of Production. The FTC should produce documents in their native electronic format or as single-page TIFF images (300 dpi minimum) with extracted text files (.txt) and Unitized load files in Ashgrove Technologies (.dat) or Relativity format, consistent with the ESI Protocol entered in this matter (Dkt. No. 34). All metadata fields, including but not limited to custodian, author, date created, date modified, date sent, date received, sender, recipients (including CC and BCC), subject line, file name, file path, and file type, must be preserved and produced. Each document shall bear a unique Bates number. The FTC should produce each document in the form in which it is kept in the ordinary course of business or should organize and label the documents to correspond to the categories in each Request. To the extent the FTC maintains documents in a database, structured data should be produced in a delimited text format (e.g., CSV or TSV) with a data dictionary and all field definitions.
C. Privilege Claims. For any document or communication withheld or redacted, in whole or in part, on the basis of any privilege or protection, including but not limited to the attorney-client privilege, work product doctrine, deliberative process privilege, law enforcement privilege, or any other governmental privilege, the FTC shall produce a privilege log in compliance with Fed. R. Civ. P. 26(b)(5)(A) and this Court's Local Rules. Each entry on the privilege log shall identify, at a minimum: (i) the date of the document or communication; (ii) the author or sender; (iii) all recipients (including individuals copied); (iv) the type of document (e.g., email, memorandum, draft); (v) the subject matter of the document or communication in sufficient detail to assess the claim of privilege without revealing privileged content; and (vi) the specific privilege or protection asserted. Defendants note that the deliberative process privilege, to the extent the FTC invokes it, must be narrowly claimed and is subject to a balancing test in which the FTC bears the burden of establishing its applicability. See In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156 F.3d 1279 (D.C. Cir. 1998); FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984). Defendants reserve all rights to challenge any privilege claims asserted by the FTC.
D. Continuing Obligation. These Requests impose a continuing obligation on the FTC to supplement its production with responsive documents that come into its possession, custody, or control after the initial production, pursuant to Fed. R. Civ. P. 26(e). This continuing obligation extends through the close of the evidentiary hearing on September 8, 2025, and through any subsequent proceedings in this matter. To the extent the FTC creates, receives, or identifies additional responsive documents after its initial production, such documents shall be produced promptly and in no event later than five (5) business days after identification.
E. Interpretation. These Requests shall be interpreted broadly and in accordance with the Federal Rules of Civil Procedure. The terms "and" and "or" shall be construed conjunctively or disjunctively as necessary to make each Request inclusive rather than exclusive. "Including" means "including but not limited to" and shall not be construed to limit the scope of any Request. The use of the singular form of any word includes the plural and vice versa. "Any" means "each and every." "All" means "each and every." No Request shall be construed as seeking the production of documents protected by a valid privilege, but the FTC must log all such documents as set forth in Instruction C above.
IV. REQUESTS FOR PRODUCTION
REQUEST NO. 1 — The FTC Complaint and Administrative Complaint
Produce all documents constituting, supporting, or relating to the preparation, drafting, review, editing, and filing of the Complaint for Temporary Restraining Order and Preliminary Injunction in this action (Case No. 2:25-cv-01087-RAJ, Dkt. No. 1) and the Administrative Complaint (FTC Docket No. 9438), including without limitation all drafts, redline versions, tracked-changes versions, comments or annotations thereon, internal memoranda analyzing the factual bases, legal theories, or merits of bringing the action, all staff recommendations to the Commission regarding whether to authorize the filing of the Complaint, all presentations or briefings to individual Commissioners or the full Commission concerning the proposed action, and all documents reflecting revisions made in response to comments from Commissioners, the Office of the General Counsel, or any other FTC personnel.
REQUEST NO. 2 — Commission Vote and Deliberations
Produce all documents relating to the Commission's vote to authorize the filing of the Complaint and the Administrative Complaint, including but not limited to:
(a) any memoranda, presentations, analyses, briefing materials, talking points, or other documents submitted to the Commissioners or their staffs in connection with the vote to authorize the filing of the Complaint and the Administrative Complaint;
(b) records reflecting the 3-2 vote of the Commission to authorize the Complaint, including any tally sheets, minutes, or other records memorializing the vote and the date on which it was taken;
(c) any statements, dissents, concurrences, or separate opinions issued by individual Commissioners in connection with the vote, whether publicly released or maintained internally, including any draft versions thereof;
(d) any documents reflecting the reasons or bases for any Commissioner's vote for or against authorization, including notes, memoranda, or correspondence between individual Commissioners and their staffs or advisors regarding the merits or strategy of the proposed enforcement action; and
(e) any documents reflecting the timing or sequencing of the Commission's deliberations, including any scheduling communications, agenda materials, or calendar entries relating to meetings at which the Transaction was discussed.
REQUEST NO. 3 — Pre-Complaint Investigation File
Produce all documents comprising the FTC's pre-complaint investigative file relating to the Transaction, including but not limited to:
(a) the complete file maintained under FTC File No. 251-0089, including all documents, memoranda, correspondence, notes, analyses, data, and other materials contained therein;
(b) all documents reviewed or considered in connection with the HSR filing submitted by Cascade and Pinnacle (Transaction No. HSR-20250402-0347), including the initial HSR notification forms, all Item 4(c) and 4(d) documents, and all voluntary submissions made by the parties during the initial waiting period;
(c) all documents submitted by Cascade, Pinnacle, or any Third Party in response to voluntary access letters, civil investigative demands, subpoenas, or any other form of compulsory or informal process issued by the FTC during the Investigation;
(d) all internal memoranda, analyses, assessments, or recommendations prepared by FTC staff analyzing, summarizing, or evaluating the submissions referenced in subparts (b) and (c) above; and
(e) all documents reflecting the FTC's decision to issue a Second Request, including any memoranda, analyses, or recommendations supporting or opposing the issuance of the Second Request.
REQUEST NO. 4 — Second Request Materials
Produce all documents relating to the FTC's Second Request for Additional Information and Documentary Material issued on May 7, 2025, including:
(a) the Second Request specification itself, including all specifications, instructions, definitions, and appendices thereto, as served on both Cascade and Pinnacle;
(b) all documents received from Cascade and Pinnacle in response to the Second Request, or a complete index thereof identifying each document by Bates number, custodian, date, and description;
(c) all internal FTC analyses, memoranda, or assessments evaluating the sufficiency of compliance with the Second Request by Cascade and Pinnacle, including any correspondence with the parties regarding deficiencies or outstanding obligations;
(d) all documents relating to the certification of substantial compliance by Cascade and Pinnacle on June 10, 2025, including the FTC's acknowledgment of substantial compliance and any conditions attached thereto; and
(e) any FTC staff memoranda, summaries, analyses, or "hot document" lists summarizing or analyzing the documents produced by Cascade, Pinnacle, or any Third Party in response to the Second Request or other compulsory process.
REQUEST NO. 5 — Market Definition Analysis
Produce all documents relating to the FTC's definition of the Alleged Relevant Market as "online marketplace platform services for third-party sellers in the United States," including:
(a) all economic analyses, models, studies, or papers (whether prepared by FTC staff, Dr. Nathaniel Hargrove of the Bureau of Economics, any other Bureau of Economics staff member, or any outside expert or consultant, including Dr. Wallace Keenan of Thornfield Research Group) supporting, evaluating, critiquing, or otherwise addressing the proposed market definition;
(b) all documents considering, analyzing, or evaluating alternative market definitions, including but not limited to any analysis of a broader market encompassing all e-commerce retail (including direct-to-consumer sales by individual retailers through their own websites), social commerce platforms (such as Brevity Social Commerce Inc. or platforms integrated into social media services), direct-to-consumer aggregators, hybrid retail models combining online and brick-and-mortar sales, or any other alternative product market definition considered during the Investigation;
(c) all SSNIP (Small but Significant and Non-transitory Increase in Price) test analyses, critical loss analyses, hypothetical monopolist tests, or other methodological tools or frameworks applied to the market definition question, including all underlying data, assumptions, and sensitivity analyses;
(d) all documents analyzing the role of supply-side substitution between marketplace platform services and direct e-commerce retail, including any analysis of the ease or difficulty with which a direct-to-consumer retailer could enter the marketplace platform business, or vice versa; and
(e) all documents analyzing the geographic scope of the Alleged Relevant Market, including any consideration of whether the market should be defined as national, regional, or global in scope.
REQUEST NO. 6 — Market Share Calculations
Produce all documents relating to the FTC's calculation of market shares as alleged in Paragraph 42 of the Complaint, including:
(a) all underlying data, sources, methodologies, assumptions, and calculations used to compute market shares by Gross Merchandise Volume ("GMV") for Cascade (8.2%), Pinnacle (30.1%), Vertex Commerce (35.7%), Nomad Shops (14.6%), and all other marketplace platforms (11.4%), including identification of the specific data sources from which GMV figures were derived and the time period over which such figures were measured;
(b) all documents identifying the entities included within the "all others" category (11.4%), including each entity's name, estimated GMV, and estimated market share;
(c) all Herfindahl-Hirschman Index ("HHI") calculations, including the pre-merger HHI of 2,361, the post-merger HHI of 2,856, and the HHI delta of 495 (as alleged in Paragraph 47 of the Complaint), together with all underlying data and worksheets used to perform such calculations;
(d) all analyses considering whether market shares measured by alternative metrics — including revenue, net revenue, number of active sellers, number of active buyers, number of transactions, number of product listings, or any other metric — would yield different market share allocations, different HHI levels, or different competitive conclusions; and
(e) all documents analyzing changes in market shares over the Relevant Period, including any trend analyses or projections of future market shares absent the Transaction.
REQUEST NO. 7 — Bureau of Economics Analyses
Produce all documents constituting analyses, reports, memoranda, models, working papers, or presentations prepared by or within the Bureau of Economics in connection with the Investigation or this litigation, including but not limited to:
(a) all economic analyses prepared by Dr. Nathaniel Hargrove or any other Bureau of Economics staff member, including all drafts, revisions, and final versions of any such analyses;
(b) all econometric models, merger simulations (including any upward pricing pressure models, differentiated products Bertrand models, auction models, or other simulation methodologies), or quantitative analyses relating to the Transaction's likely competitive effects;
(c) all analyses of take rates (including the level, structure, and trends in take rates charged by marketplace platforms), seller switching costs (including both monetary and non-monetary switching costs), multi-homing behavior by sellers and consumers, and direct and indirect network effects on marketplace platforms;
(d) all Bureau of Economics recommendations to the Bureau of Competition, the Commission, or any individual Commissioner regarding the Transaction, including any recommendations for or against challenging the Transaction, any memoranda outlining the strengths and weaknesses of the economic case, and any presentations to the Commission; and
(e) all data requests, data specifications, or data collection instruments used by the Bureau of Economics to obtain data from the parties, Third Parties, or public sources in connection with the Investigation.
REQUEST NO. 8 — Competitive Effects Analysis
Produce all documents relating to the FTC's analysis of the competitive effects of the Transaction, including:
(a) all analyses of unilateral effects, including any upward pricing pressure ("UPP") analysis, gross upward pricing pressure index ("GUPPI") calculations, diversion ratio calculations (whether based on seller switching data, survey data, or any other methodology), and any analysis of the merged firm's incentive and ability to raise take rates, reduce seller services, or otherwise worsen terms for third-party sellers;
(b) all analyses of coordinated effects, including any assessment of the likelihood of tacit or express coordination among marketplace platforms following the Transaction, any analysis of market characteristics that may facilitate or impede coordination (including transparency of take rates, symmetry of market shares, frequency of competitive interactions, and barriers to entry), and any analysis of maverick or disruptive competitive behavior by any marketplace platform;
(c) all analyses of non-price competitive effects, including effects on seller services (such as fulfillment, advertising, analytics, and customer support), innovation (including platform features, technology investments, and product development), platform quality, and any other dimensions of competition;
(d) all documents relating to the Complaint's allegation (at Paragraph 55) that the merger would give the combined firm "undue leverage over third-party sellers," including all analyses of bargaining leverage, seller dependency, and the extent to which sellers rely on marketplace platforms as a distribution channel; and
(e) all documents analyzing the Transaction's effects on consumers, including any analysis of the relationship between take rates charged to sellers and retail prices paid by consumers, and any analysis of pass-through rates.
REQUEST NO. 9 — Efficiencies Analysis
Produce all documents relating to the FTC's analysis of the procompetitive efficiencies claimed by Cascade and Pinnacle in connection with the Transaction, including:
(a) all documents evaluating the total claimed $340 million in annual merger-specific efficiencies, including any analyses questioning or supporting the magnitude, timing, likelihood of realization, or consumer benefit of such efficiencies;
(b) all analyses of the claimed $195 million in logistics and fulfillment cost savings projected to result from the integration of Pinnacle's approximately 185,000 active sellers into Cascade's 22-warehouse fulfillment network, including any assessment of the feasibility of such integration, the timeline for achieving cost savings, and the extent to which cost savings would be passed through to sellers or consumers;
(c) all analyses of the claimed $145 million in technology and platform synergies, including synergies related to payment processing, data analytics, search and recommendation algorithms, and any other technology-related efficiencies identified by the parties;
(d) all documents assessing whether the claimed efficiencies are merger-specific (i.e., not achievable through means other than the Transaction), verifiable (i.e., supported by reasonable projections grounded in the parties' experience), and cognizable under the Merger Guidelines and applicable case law; and
(e) all staff memoranda, Commission guidance, emails, or other documents reflecting the FTC's analytical framework for evaluating efficiencies in this Investigation, including any documents discussing the appropriate standard or burden for crediting claimed efficiencies.
REQUEST NO. 10 — Entry and Expansion Analysis
Produce all documents relating to the FTC's analysis of barriers to entry and expansion in the Alleged Relevant Market, including:
(a) all analyses of the ease or difficulty of entry by new marketplace platforms, including analyses of capital requirements, technology development costs, time to achieve minimum viable scale, the role of network effects as barriers to entry, and regulatory or legal barriers;
(b) all documents analyzing the competitive significance of Brevity Social Commerce Inc. (launched in 2023), Trove Marketplace Inc. (launched in 2024), or any other recent or potential entrant into the marketplace platform space, including any assessment of these firms' growth trajectories, seller and consumer adoption rates, and likelihood of achieving competitive significance;
(c) all documents analyzing the competitive significance of social commerce platforms (including commerce features integrated into social media platforms), direct-to-consumer aggregators, and hybrid retail models as potential entrants into, or competitive constraints upon, the Alleged Relevant Market;
(d) all analyses of expansion by existing competitors, including Vertex Commerce Inc. and Nomad Shops LLC, including analyses of their capacity and incentive to expand in response to a post-merger price increase or quality degradation, and any documents analyzing Vertex Commerce's or Nomad Shops' strategic plans, growth investments, or market expansion efforts; and
(e) all analyses of historical entry and exit in the marketplace platform space, including any analysis of the success or failure of past entrants and the factors contributing to their outcomes.
REQUEST NO. 11 — Pinnacle Competitive Trajectory
Produce all documents relating to the FTC's analysis of Pinnacle Market Group's competitive position, trajectory, financial condition, and viability, including:
(a) all documents analyzing Pinnacle's GMV growth rate, including the deceleration from approximately 28% year-over-year growth in 2022 to approximately 9% year-over-year growth in 2024, and any analysis of the causes of, or reasons for, this deceleration;
(b) all documents analyzing Pinnacle's seller churn rate, including the increase from approximately 12% annualized churn in 2022 to approximately 21% annualized churn in 2024, and any analysis of the causes of, or reasons for, this increase, including the impact of competition from other marketplace platforms;
(c) all documents evaluating whether Pinnacle qualifies as a "failing firm" or a "weakening firm" under the Merger Guidelines or applicable case law, including any analysis of Pinnacle's financial statements, cash flow projections, ability to meet its financial obligations, and any assessment of Pinnacle's ability to reorganize successfully under Chapter 11 of the Bankruptcy Code;
(d) all analyses of alternative acquirers for Pinnacle, including any documents identifying potential alternative buyers, any analysis of the likelihood or terms of alternative transactions, and any documents reflecting the FTC's assessment of whether Pinnacle's assets would exit the Alleged Relevant Market absent the Transaction; and
(e) all documents assessing the likely competitive trajectory of Pinnacle absent the Transaction, including any projections of Pinnacle's future market share, GMV, seller base, and competitive significance, and any analysis of whether Pinnacle would remain a significant competitive force in the Alleged Relevant Market on a standalone basis.
REQUEST NO. 12 — Communications with IOSA
Produce all communications between the FTC (including any Commissioner, any member of a Commissioner's staff, Bureau of Competition staff, Bureau of Economics staff, Office of the General Counsel, Office of Policy Planning, or any other FTC personnel) and the Independent Online Sellers Alliance (IOSA), including but not limited to any representatives, officers, directors, board members, employees, agents, members (acting in their capacity as IOSA representatives), or counsel (including Martina Galloway and any other attorney at Galloway & Peck LLP) of IOSA, relating to:
(a) the Transaction, including IOSA's views on the competitive effects, potential harms, or potential benefits of the Transaction;
(b) CascadeMarket, Cascade, or Pinnacle, including any complaints, concerns, or advocacy by IOSA regarding the business practices of any of these entities;
(c) marketplace competition, take rates, seller fees, seller services, fulfillment services, or any other aspect of the competitive dynamics among marketplace platforms;
(d) IOSA's views on the competitive effects of the Transaction on third-party sellers, including any data, surveys, member testimony, or other evidence submitted by IOSA to the FTC; and
(e) IOSA's motion to intervene in this action (Dkt. No. 27), including any coordination, discussions, or exchange of information between the FTC and IOSA regarding intervention strategy, litigation support, or case development.
REQUEST NO. 13 — Communications with Vertex Commerce Inc.
Produce all communications between the FTC (including any Commissioner, any member of a Commissioner's staff, Bureau of Competition staff, Bureau of Economics staff, or any other FTC personnel) and Vertex Commerce Inc. (or any of its officers, directors, employees, agents, representatives, or outside counsel), relating to:
(a) the Transaction, including Vertex Commerce's views on the competitive effects, potential harms, or potential benefits of the Transaction;
(b) the Alleged Relevant Market, including Vertex Commerce's views on market definition, market boundaries, and the appropriate scope of competitive analysis;
(c) Vertex Commerce's marketplace platform operations, competitive strategies, pricing practices, take rate structure, seller services, fulfillment capabilities, technology investments, or expansion plans;
(d) Vertex Commerce's views on the competitive effects of the Transaction, including any analysis, data, or other information provided by Vertex Commerce to the FTC regarding how the Transaction would affect competition; and
(e) any and all documents submitted by Vertex Commerce to the FTC in connection with the Investigation, whether voluntarily or in response to civil investigative demands, voluntary access letters, subpoenas, or any other form of compulsory or informal process, including all cover letters, transmittal correspondence, and related communications.
REQUEST NO. 14 — Communications with Nomad Shops LLC
Produce all communications between the FTC (including any Commissioner, any member of a Commissioner's staff, Bureau of Competition staff, Bureau of Economics staff, or any other FTC personnel) and Nomad Shops LLC (or any of its officers, directors, members, managers, employees, agents, representatives, or outside counsel), relating to:
(a) the Transaction, including Nomad Shops' views on the competitive effects, potential harms, or potential benefits of the Transaction;
(b) the Alleged Relevant Market, including Nomad Shops' views on market definition, market boundaries, and the appropriate scope of competitive analysis;
(c) Nomad Shops' marketplace platform operations, competitive strategies, pricing practices, take rate structure, seller services, fulfillment capabilities, technology investments, expansion plans, or any planned entry into new product categories or geographic markets;
(d) Nomad Shops' views on the competitive effects of the Transaction, including any analysis, data, or other information provided by Nomad Shops to the FTC regarding how the Transaction would affect competition; and
(e) any and all documents submitted by Nomad Shops to the FTC in connection with the Investigation, whether voluntarily or in response to civil investigative demands, voluntary access letters, subpoenas, or any other form of compulsory or informal process, including all cover letters, transmittal correspondence, and related communications.
REQUEST NO. 15 — Communications with Other Third-Party Competitors
Produce all communications between the FTC (including any Commissioner, any member of a Commissioner's staff, Bureau of Competition staff, Bureau of Economics staff, or any other FTC personnel) and any marketplace platform operator or e-commerce company (other than Cascade, Pinnacle, Vertex Commerce, and Nomad Shops) relating to the Transaction or the Alleged Relevant Market, including but not limited to communications with:
(a) Brevity Social Commerce Inc., including any analysis of Brevity's launch in 2023, its social commerce model, its competitive position, and its views on the Transaction;
(b) Trove Marketplace Inc., including any analysis of Trove's launch in 2024, its competitive model, and its views on the Transaction;
(c) any other entity identified within the "all others" category in the FTC's market share analysis (as alleged in Paragraph 42 of the Complaint);
(d) social commerce platforms, including any platforms that integrate commerce features within social media applications; and
(e) direct-to-consumer retailers, hybrid retail platforms, or any other entity that the FTC considered as a potential competitor or competitive constraint in the Alleged Relevant Market.
REQUEST NO. 16 — Communications with Third-Party Sellers
Produce all communications between the FTC (including any Commissioner, any member of a Commissioner's staff, Bureau of Competition staff, Bureau of Economics staff, or any other FTC personnel) and any third-party sellers (i.e., merchants, artisans, brands, or other businesses that sell goods through any online marketplace platform) relating to:
(a) the Transaction, including any seller's views on the competitive effects, potential harms, or potential benefits of the Transaction;
(b) CascadeMarket, Pinnacle, or any other marketplace platform, including any seller's experiences with, satisfaction or dissatisfaction with, or complaints regarding any marketplace platform;
(c) take rates, seller fees, commission structures, advertising costs, fulfillment fees, seller services, customer support, dispute resolution, or any other terms of service offered by any marketplace platform;
(d) the competitive effects of the Transaction on sellers, including any effect on seller choice, seller bargaining power, seller profitability, or seller ability to reach consumers; and
(e) any complaints, declarations, affidavits, written statements, interview notes, or summaries of interviews with sellers obtained by the FTC during the Investigation.
REQUEST NO. 17 — Third-Party Submissions and Declarations
Produce all documents submitted by any Third Party to the FTC in connection with the Investigation, including but not limited to:
(a) all white papers, position papers, comment letters, advocacy documents, studies, analyses, reports, or data compilations submitted by Third Parties, whether solicited by the FTC or provided voluntarily;
(b) all declarations, affidavits, sworn statements, or witness statements obtained from Third Parties, including drafts thereof and any correspondence with Third Parties regarding the preparation, review, or revision of such declarations;
(c) all responses to voluntary access letters, civil investigative demands, subpoenas, or any other form of compulsory or informal process directed to Third Parties, together with all cover letters, transmittal correspondence, and privilege logs submitted by Third Parties; and
(d) all correspondence, communications, or meeting notes reflecting discussions between the FTC and Third Parties regarding their participation in the Investigation, including any discussions regarding the scope of information requested, the timing of submissions, and any agreements regarding confidentiality or the use of submitted materials.
REQUEST NO. 18 — Expert Reports and Materials
Produce all documents relating to any expert retained, consulted, or employed by the FTC in connection with the Investigation or this litigation, including but not limited to:
(a) all reports, draft reports, analyses, models, presentations, spreadsheets, working papers, memoranda, or other work product prepared by Dr. Wallace Keenan of Thornfield Research Group, whether in draft, interim, or final form;
(b) all data, datasets, data compilations, data dictionaries, or data specifications provided to or used by Dr. Keenan in connection with his engagement, including data obtained from the parties, from Third Parties, from public sources, or from the Bureau of Economics;
(c) all communications between FTC counsel (including Claire Dunmore, Samuel Ortega, Rebecca Yun, or any other FTC attorney or staff member) and Dr. Keenan or any other member of Thornfield Research Group, including all emails, letters, memoranda, meeting notes, and records of telephone calls or videoconferences;
(d) the engagement letter, retention agreement, and all invoices, billing records, time records, or expense reports for Dr. Keenan's or Thornfield Research Group's services, including all statements of work, task orders, or amendments thereto;
(e) all reports, analyses, data, or materials prepared by Dr. Nathaniel Hargrove or any other Bureau of Economics staff member that were shared with, provided to, or discussed with Dr. Keenan or Thornfield Research Group; and
(f) all documents relating to any other expert retained, consulted, or employed by the FTC in connection with the Investigation or this litigation, including the identity of each such expert, the subject matter of their engagement, and all reports, analyses, communications, and billing records associated with their retention.
REQUEST NO. 19 — Take Rate and Pricing Analysis
Produce all documents relating to the FTC's analysis of take rates charged by marketplace platforms to third-party sellers, including:
(a) all data and analyses of Cascade's take rate on CascadeMarket (alleged to be approximately 17%), Pinnacle's take rate (alleged to be approximately 16%), Vertex Commerce's take rate, Nomad Shops' take rate, and the take rates of any other marketplace platform, including all underlying data sources, calculation methodologies, and any adjustments or normalizations applied to ensure comparability across platforms;
(b) all analyses of take rate trends over the Relevant Period, including any analysis of whether take rates have increased, decreased, or remained stable, and the causes of any observed trends;
(c) all analyses of the Transaction's likely effect on take rates for sellers on the combined Cascade-Pinnacle platform, including any econometric projections, merger simulations, or theoretical models predicting post-merger take rate changes; and
(d) all economic models, sensitivity analyses, or scenario analyses projecting post-merger take rate changes under various assumptions, including all underlying assumptions, parameters, and data inputs.
REQUEST NO. 20 — Multi-Homing and Seller Switching Analysis
Produce all documents relating to the FTC's analysis of multi-homing behavior by third-party sellers (i.e., the extent to which sellers list products on more than one marketplace platform simultaneously), including:
(a) all data on seller overlap between CascadeMarket, Pinnacle, Vertex Commerce, Nomad Shops, and any other marketplace platform, including the number and percentage of sellers that list on multiple platforms, the share of sales or GMV attributable to multi-homing sellers, and any segmentation of multi-homing data by seller size, category, or other relevant characteristics;
(b) all analyses of seller switching costs, including both monetary costs (such as listing fees, setup costs, and integration costs) and non-monetary costs (such as loss of seller ratings, reviews, customer relationships, and platform-specific promotional benefits), and any assessment of how switching costs affect seller behavior;
(c) all analyses of the extent to which multi-homing constrains marketplace platforms' ability to raise take rates or otherwise worsen terms for sellers, including any analysis of whether multi-homing constitutes a sufficient competitive constraint to mitigate the Transaction's anticompetitive effects; and
(d) all documents analyzing whether multi-homing mitigates the Transaction's competitive effects, including any analysis of the percentage of sellers likely to switch platforms in response to a post-merger take rate increase, and any analysis of the elasticity of seller participation on individual platforms.
REQUEST NO. 21 — Two-Sided Market and Network Effects Analysis
Produce all documents relating to the FTC's analysis of marketplace platforms as two-sided markets, including:
(a) all analyses of indirect network effects between sellers and consumers on marketplace platforms, including any analysis of how an increase in the number of sellers affects consumer participation (and vice versa), and any quantification of the magnitude of indirect network effects;
(b) all documents considering the applicability of the Supreme Court's framework in Ohio v. Halcyon Corporation, 585 U.S. 529 (2018), to the analysis of marketplace platforms, including any analysis of whether marketplace platforms constitute "transaction platforms" within the meaning of Amex, and any analysis of the implications of Amex for market definition and competitive effects analysis in this case;
(c) all analyses of the consumer side of marketplace platforms and any effects of the Transaction on consumer welfare, including any analysis of consumer prices, consumer choice, product range, delivery speed, customer service, and any other consumer-facing dimensions of competition; and
(d) all documents analyzing whether the Alleged Relevant Market should account for both sides of the marketplace platform (i.e., both the seller side and the consumer side), including any analysis of whether a one-sided market definition is appropriate or whether a two-sided market definition is required under Amex or other applicable precedent.
REQUEST NO. 22 — Trend Toward Concentration
Produce all documents relating to the FTC's allegation of a "trend toward concentration" in online marketplace platforms, as alleged in Paragraphs 48 through 52 of the Complaint, including:
(a) all historical data on marketplace platform market shares over the Relevant Period, including any time-series data tracking the market shares of Cascade, Pinnacle, Vertex Commerce, Nomad Shops, and other marketplace platforms from 2022 through the present;
(b) all analyses of entry into and exit from the marketplace platform industry, including any analysis of the number of marketplace platforms that have launched, scaled, or ceased operations during the Relevant Period;
(c) all analyses of merger and acquisition activity among marketplace platform operators, including any analysis of past acquisitions by Cascade, Pinnacle, Vertex Commerce, Nomad Shops, or any other marketplace platform operator, and any analysis of the competitive effects of such past transactions; and
(d) all documents supporting, evaluating, or critiquing the "trend toward concentration" theory as applied to the Alleged Relevant Market, including any analysis of whether the marketplace platform industry is becoming more or less concentrated over time, and any analysis of the competitive significance of such trends.
REQUEST NO. 23 — Internal FTC Policy Documents
Produce all internal FTC policy documents, guidelines, staff guidance, policy memoranda, or analytical frameworks applied or considered in connection with the Investigation, including but not limited to:
(a) the 2023 Merger Guidelines issued jointly by the FTC and the Department of Justice (or any subsequent revisions, amendments, or supplementary guidance), as applied to the Transaction;
(b) any internal memoranda, staff analyses, or presentations interpreting or applying the Merger Guidelines to the Transaction, including any analysis of which of the Guidelines' structural presumptions or analytical frameworks are applicable to this case;
(c) any internal guidance, policy memoranda, staff papers, or analytical frameworks specifically addressing the definition of platform markets, digital marketplace markets, or multi-sided platform markets, including any guidance developed in connection with prior investigations or enforcement actions; and
(d) any internal guidance, policy memoranda, or staff papers on the treatment of efficiencies, failing firms, weakening competitors, or the weight to be given to dynamic competition and innovation in merger review.
REQUEST NO. 24 — Prior FTC Investigations of Marketplace Platforms
Produce all documents relating to any prior FTC investigation, enforcement action, consent decree, consent order, study, workshop, public hearing, or report involving online marketplace platforms, e-commerce platforms, or digital platform services, to the extent such documents were considered, referenced, consulted, or relied upon by any FTC personnel in connection with the Investigation of the Transaction. This Request encompasses, without limitation, documents relating to prior FTC actions involving any of the marketplace platform operators identified in the Complaint or in these Requests, as well as documents relating to the FTC's broader study of competition in digital platform markets.
REQUEST NO. 25 — Documents Relating to Cascade
Produce all documents in the FTC's possession, custody, or control relating to Cascade Retail Holdings Inc. and its business operations, including:
(a) all documents analyzing Cascade's competitive position in e-commerce and marketplace services, including any SWOT analyses, competitive assessments, or strategic analyses of Cascade prepared by or for the FTC;
(b) all documents analyzing CascadeMarket, including its launch in 2019, its growth trajectory, its approximately 42,000 active third-party sellers, and its estimated $3.1 billion in GMV for 2024, including any assessment of CascadeMarket's competitive strengths, weaknesses, and prospects;
(c) all documents analyzing Cascade's brick-and-mortar retail operations, including its network of approximately 340 retail locations across 38 states, and any analysis of the relationship between Cascade's physical retail operations and its online marketplace;
(d) all documents analyzing Cascade's fulfillment and logistics capabilities, including its network of 22 warehouses, and any analysis of the competitive advantage or significance of Cascade's fulfillment infrastructure; and
(e) all documents relating to any prior FTC investigations, inquiries, reviews, or enforcement actions involving Cascade, its affiliates, or its predecessor entities, to the extent such documents were considered or referenced in connection with the current Investigation.
REQUEST NO. 26 — Documents Relating to Pinnacle
Produce all documents in the FTC's possession, custody, or control relating to Pinnacle Market Group Inc. and its business operations, including:
(a) all documents analyzing Pinnacle's competitive position, its approximately 185,000 active third-party sellers, and its estimated $11.4 billion in GMV for 2024, including any assessment of Pinnacle's competitive strengths, weaknesses, and prospects;
(b) all documents analyzing Pinnacle's initial public offering on September 18, 2020, its stock price performance since listing, and its financial performance since going public, including any analysis of Pinnacle's revenue, profitability, cash flow, and capital structure;
(c) all documents analyzing Pinnacle's founding by Rajiv Chandravar and Lena Kowalski in 2014, its corporate history, and its competitive evolution, including any analysis of Pinnacle's differentiation strategy and its positioning relative to other marketplace platforms;
(d) all documents analyzing the product categories in which Pinnacle operates, including home goods, artisanal products, specialty foods, fashion, and electronics, and any analysis of Pinnacle's competitive position within individual product categories; and
(e) all documents relating to any prior FTC investigations, inquiries, reviews, or enforcement actions involving Pinnacle, its affiliates, or its predecessor entities, to the extent such documents were considered or referenced in connection with the current Investigation.
REQUEST NO. 27 — Preliminary Injunction Analysis