UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION
700 Stewart Street, Seattle, WA 98101
FEDERAL TRADE COMMISSION,
Plaintiff,
v.
CASCADE RETAIL HOLDINGS INC. and PINNACLE MARKET GROUP INC.,
Defendants.
Case No. 2:25-cv-01087-RAJ
The Honorable Richard A. Johannsen
SUBPOENA DUCES TECUM TO VERTEX COMMERCE INC. PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 45
AO 88A — SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS IN A CIVIL ACTION
I. COMMAND / PRODUCTION DEMAND
To: Vertex Commerce Inc.
YOU ARE COMMANDED to produce at the time, date, and place set forth above, or to deliver electronically via secure file transfer to Calderwood & Harkness LLP, at 555 California Street, Suite 2700, San Francisco, California 94104, all documents and electronically stored information ("ESI") described in the attached Schedule A to this Subpoena. Production shall be completed no later than July 30, 2025, which is fourteen (14) days from the date of service of this Subpoena.
This Subpoena is issued pursuant to Federal Rule of Civil Procedure 45(a)(1)(A)(iii) and commands the production of documents and ESI only. No testimony or deposition is being noticed at this time. Defendant Cascade Retail Holdings Inc. ("Cascade") reserves the right to notice testimony at a later date, subject to the Court's scheduling orders and the requirements of Rule 45.
The expedited compliance timeline reflected in this Subpoena is necessitated by the pendency of a preliminary injunction proceeding before the Honorable Richard A. Johannsen in the above-captioned matter. The Federal Trade Commission ("FTC") has moved for a preliminary injunction pursuant to Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), seeking to temporarily enjoin the consummation of the proposed merger between Cascade and Pinnacle Market Group Inc. ("Pinnacle"). An evidentiary hearing on the FTC's motion for preliminary injunction is scheduled for September 8, 2025. The fact discovery deadline in this matter is August 4, 2025. Accordingly, the documents and information sought by this Subpoena are needed promptly in order to allow Cascade to prepare its defense in advance of the evidentiary hearing.
Vertex Commerce Inc. is a significant participant in the marketplace platform industry and possesses documents and information material to the claims and defenses in this proceeding, including, without limitation, evidence relevant to market definition, competitive conditions, barriers to entry, seller multi-homing, pricing dynamics, and the likely competitive effects of the proposed Merger. The documents sought herein are not available from any party to this litigation and are uniquely within the possession, custody, or control of Vertex Commerce Inc.
II. DEFINITIONS
A. Defined Terms
As used in this Subpoena, including Schedule A attached hereto, the following terms shall have the meanings set forth below:
1. "Vertex" or "You" or "Your" means Vertex Commerce Inc., a corporation organized and existing under the laws of the State of Delaware, with its principal place of business at 2100 North First Street, San Jose, California 95131, including its current and former officers, directors, employees, agents, representatives, subsidiaries, affiliates, divisions, predecessors, and successors in interest, and any persons acting or purporting to act on its behalf.
2. "Cascade" means Cascade Retail Holdings Inc., a Delaware corporation headquartered at 2200 Westlake Avenue North, Suite 3400, Seattle, Washington 98109, traded on the Nasdaq Stock Market under the ticker symbol "CSRT," including its subsidiaries and affiliates, and specifically including the CascadeMarket third-party seller marketplace platform and all associated operations.
3. "Pinnacle" or "PMG" means Pinnacle Market Group Inc., a Delaware corporation headquartered at 500 East 6th Street, Suite 800, Austin, Texas 78701, traded on the Nasdaq Stock Market under the ticker symbol "PMGI," including its subsidiaries and affiliates, and all marketplace platform operations conducted thereby.
4. "CascadeMarket" means the third-party seller marketplace platform operated by Cascade Retail Holdings Inc., which was launched on June 1, 2019, and through which third-party sellers list and sell goods and services to consumers via Cascade's e-commerce infrastructure.
5. "Merger" or "Transaction" means 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, for aggregate consideration of approximately $4.7 billion (representing $26.85 per share of Pinnacle common stock), which was publicly announced on March 17, 2025, and which is the subject of the FTC's enforcement action in the above-captioned proceeding.
6. "FTC" means the Federal Trade Commission, an independent agency of the United States government, including its Commissioners, Bureau of Competition, Bureau of Economics, and all staff, attorneys, economists, investigators, and other personnel acting on behalf of or at the direction of the Commission.
7. "IOSA" means the Independent Online Sellers Alliance, a 501(c)(6) trade association headquartered at 1025 Vermont Avenue NW, Suite 600, Washington, D.C. 20005, which represents the interests of third-party sellers operating on marketplace platforms.
8. "Marketplace Platform" means any online platform, website, application, or digital service that connects third-party sellers with consumers for the sale of goods and/or services, where the platform operator facilitates transactions between sellers and buyers but does not itself take title to or hold inventory of all goods sold through the platform. The term "Marketplace Platform" includes, without limitation, Vertex's marketplace platform, CascadeMarket, Pinnacle's marketplace platform, Nomad Shops LLC's marketplace platform, Brevity Social Commerce Inc.'s marketplace platform, Trove Marketplace Inc.'s marketplace platform, and any other platform meeting the foregoing description, regardless of whether such platform also engages in first-party retail sales.
9. "Take Rate" means the percentage of gross merchandise value ("GMV") retained by a Marketplace Platform operator as revenue for marketplace services provided to third-party sellers. The Take Rate includes, without limitation, all commissions, referral fees, listing fees, subscription fees, fulfillment fees, shipping surcharges, advertising fees, payment processing fees, and any other charges assessed by the platform operator against third-party sellers in connection with the sale of goods or services through the platform.
10. "GMV" or "Gross Merchandise Value" means the total dollar value of merchandise and services sold through a Marketplace Platform during a specified period, measured at the point of sale, before deduction of returns, cancellations, chargebacks, discounts, or platform fees.
11. "Seller" or "Third-Party Seller" means any individual, sole proprietorship, partnership, corporation, limited liability company, or other entity that lists goods or services for sale on a Marketplace Platform, where such individual or entity is distinct from the Marketplace Platform operator itself.
12. "Document" or "Documents" shall be construed in the broadest sense permitted under Federal Rule of Civil Procedure 34(a) and shall include, without limitation, all writings, drawings, graphs, charts, photographs, sound recordings, images, data, and other data compilations, whether stored electronically or otherwise, from which information can be obtained either directly or, if necessary, after translation into a reasonably usable form. The term includes, without limitation: emails; text messages; instant messages (including messages sent via Meridian Solutions, Northgate Data Systems, Meridian Services Inc., Signal, or any other messaging platform); letters; memoranda; notes (whether handwritten or typed); reports; studies; analyses; presentations (including Northgate Services Inc., Tidewater Data Systems, or Pemberton Services Inc. presentations); spreadsheets (including Excel, Stonefield Services Inc., or comparable formats); databases and database extracts; calendars and calendar entries; voicemails and voicemail transcriptions; video and audio recordings; social media posts and direct messages; drafts of any of the foregoing; and metadata associated with any of the foregoing.
13. "Communication" or "Communications" means any exchange of information, whether oral or written, formal or informal, including but not limited to emails, letters, facsimile transmissions, text messages, instant messages, telephone calls (including the substance of such calls as reflected in notes, memoranda, or recordings), video conferences, webinars, in-person meetings, and any other method by which information is transmitted or exchanged between two or more persons.
14. "Relevant Period" means the period from January 1, 2022 through the date of Vertex's compliance with this Subpoena, unless a specific Document Request in Schedule A specifies a different time period.
15. "Concerning" means relating to, referring to, describing, evidencing, constituting, reflecting, mentioning, analyzing, discussing, or in any way pertaining to the subject matter referenced.
B. Rules of Construction
The following rules of construction shall apply to all provisions of this Subpoena, including the Document Requests set forth in Schedule A:
1. The term "including" means "including but not limited to," and shall not be construed as limiting the scope of any Document Request to the specific items enumerated.
2. The connectives "and" and "or" shall be construed in both the conjunctive and the disjunctive, as necessary, to bring within the scope of each Document Request all documents that might otherwise be construed to be outside the scope of the request.
3. Use of the singular form of any word includes the plural, and use of the plural form includes the singular.
4. Use of any verb tense shall be construed to encompass all verb tenses as necessary to make each Document Request inclusive.
5. References to a person or entity include that person's or entity's agents, employees, officers, directors, representatives, consultants, advisors, and counsel, unless a Document Request specifically provides otherwise.
6. The terms "each," "any," and "all" shall each be construed as encompassing any and all.
7. References to communications "between" or "among" persons include communications in which one or more of the specified persons is a sender, recipient, or person copied (whether by "cc" or "bcc"), regardless of the order or direction of the communication.
III. INSTRUCTIONS
A. General Instructions
1. Vertex Commerce Inc. is directed to produce all responsive, non-privileged documents in its possession, custody, or control, including documents held by its officers, directors, employees, agents, attorneys, accountants, consultants, advisors, subsidiaries, affiliates, and any other persons or entities acting on its behalf or subject to its direction.
2. Documents that exist as electronically stored information ("ESI") shall be produced in their native file format, with all associated metadata preserved and intact. Native file production shall include, without limitation, Hollowell Systems .msg or .pst files for email, Microsoft Excel files (.xlsx) for spreadsheets, Microsoft Northgate Services Inc. files (.pptx) for presentations, and PDF files for documents originally created or maintained in PDF format. Where a document was originally created in a format other than those listed, it shall be produced in its original native format.
3. Documents that exist only in hard-copy form shall be produced as searchable PDF files (i.e., scanned with optical character recognition applied), with each page Bates-stamped in a sequential manner.
4. All produced documents shall be organized and labeled to correspond to the specific Document Request number(s) in Schedule A to which they are responsive. Where a single document is responsive to more than one Document Request, the document need only be produced once, provided that a cross-reference index is included identifying all Document Requests to which the document is responsive.
5. If any document responsive to a Document Request is withheld, in whole or in part, on the basis of attorney-client privilege, the work product doctrine, or any other privilege or protection, Vertex shall provide a privilege log that complies with Federal Rule of Civil Procedure 45(e)(2)(A). The privilege log shall identify each withheld document with sufficient specificity to enable the issuing party and, if necessary, the Court, to assess the applicability of the claimed privilege or protection. At a minimum, the privilege log shall include: (a) the date of the document or communication; (b) the author(s) or sender(s); (c) all recipients and persons copied; (d) the general subject matter of the document or communication (described with sufficient specificity to permit an assessment of the privilege claim, without revealing privileged content); (e) the type of document (e.g., email, memorandum, presentation); (f) the specific privilege(s) or protection(s) asserted; and (g) the basis for the privilege claim (e.g., the identity of the attorney and client involved, and the nature of the legal advice sought or rendered).
6. If Vertex objects to any Document Request, in whole or in part, Vertex shall: (a) state the objection with specificity, including the legal and factual bases therefor; (b) produce all responsive documents as to which no objection is asserted; and (c) specifically identify the portions of the Document Request to which the objection is directed, so that the issuing party may assess the scope of the objection and seek resolution through the meet-and-confer process or, if necessary, by motion to the Court.
7. If any document responsive to a Document Request has been lost, destroyed, discarded, or is otherwise no longer in Vertex's possession, custody, or control, Vertex shall identify the document to the extent possible, including a description of the document, the date of its loss or destruction, the circumstances of its loss or destruction, and the identity of the person(s) responsible.
8. This Subpoena is continuing in nature. If, after producing documents in response to this Subpoena, Vertex discovers or creates additional responsive documents, Vertex shall promptly supplement its production to include such documents.
B. Confidentiality / Protective Order
1. On May 12, 2025, the Honorable Richard A. Johannsen entered a Stipulated Protective Order in Case No. 2:25-cv-01087-RAJ (Dkt. No. 47) governing the treatment of confidential business information produced by the parties and third parties in this litigation (the "Protective Order"). A copy of the Protective Order is enclosed with this Subpoena for Vertex's reference.
2. Vertex may designate documents produced in response to this Subpoena as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" in accordance with the terms and procedures set forth in the Protective Order. Documents so designated will be treated in accordance with the protections afforded by the Protective Order, including limitations on access, use, and disclosure.
3. The existence of the Protective Order should alleviate any concerns Vertex may have regarding the disclosure of competitively sensitive business information. Vertex is encouraged to contact undersigned counsel with any questions regarding the application of the Protective Order to specific documents or categories of information.
C. Compliance with Federal Rule of Civil Procedure 45
1. Objections. Pursuant to Federal Rule of Civil Procedure 45(d)(2)(B), any objections to this Subpoena must be served on the issuing party (Calderwood & Harkness LLP, at the address set forth above) before the earlier of: (a) the time specified for compliance with this Subpoena (July 30, 2025); or (b) fourteen (14) days after service of this Subpoena. If objections are served, the issuing party shall not be entitled to inspect or copy materials relating to the objected-to portions of the Subpoena, except pursuant to an order of the Court.
2. Reimbursement of Costs. Pursuant to Federal Rule of Civil Procedure 45(d)(2)(B)(ii), Defendant Cascade Retail Holdings Inc. will reimburse Vertex Commerce Inc. for the reasonable costs incurred in complying with this Subpoena, including reasonable attorneys' fees and costs associated with document review, collection, and production. Vertex is encouraged to contact undersigned counsel to discuss the scope of production and anticipated costs prior to commencing document collection.
3. Service. This Subpoena is being served in accordance with Federal Rule of Civil Procedure 45(b)(1). Notice of service of this Subpoena has been provided to all parties in the above-captioned action, in compliance with Rule 45(a)(4).
IV. SCHEDULE A — DOCUMENT REQUESTS
Request No. 1: Marketplace Platform Operations — General
Produce all documents concerning Vertex's marketplace platform operations during the Relevant Period, including but not limited to: business plans; strategic plans; long-range plans; competitive assessments; annual operating plans; quarterly business reviews; board of directors presentations, minutes, and materials; executive committee presentations and minutes; investor presentations; earnings call scripts and talking points; and any other documents reflecting Vertex's overall strategy, objectives, and performance with respect to its marketplace platform business.
This Request includes any documents analyzing or discussing Vertex's competitive position relative to Cascade Retail Holdings Inc. (including CascadeMarket), Pinnacle Market Group Inc., Nomad Shops LLC, Brevity Social Commerce Inc., Trove Marketplace Inc., or any other Marketplace Platform, as well as any documents assessing competitive dynamics, competitive threats, or opportunities in marketplace platform services, e-commerce retail, or related industries.
Request No. 2: Market Definition and Competitive Landscape
Produce all documents concerning Vertex's assessment of the competitive landscape for online marketplace platforms, e-commerce retail, or any related market during the Relevant Period. This Request includes, without limitation:
(a) Documents discussing the identity of Vertex's competitors in marketplace platform services and/or e-commerce retail, including any documents identifying or analyzing the competitive significance of marketplace platforms, direct-to-consumer e-commerce retailers (including first-party retailers without marketplace operations), social commerce platforms, brick-and-mortar retailers, and any hybrid models;
(b) Documents analyzing or discussing the boundaries of any relevant product market or geographic market in which Vertex participates or competes, including any documents assessing whether marketplace platform services for third-party sellers constitute a distinct market separate from broader e-commerce retail;
(c) Documents analyzing or discussing the degree of competitive constraint imposed on Vertex by (i) other marketplace platforms; (ii) direct-to-consumer e-commerce websites operated by retailers or brands; (iii) social commerce platforms (e.g., platforms enabling commerce through social media channels); and (iv) brick-and-mortar retail stores;
(d) Documents prepared for or submitted to any governmental agency, trade association, or industry group analyzing competitive conditions in online marketplace services or e-commerce retail; and
(e) Any economic analyses, expert reports, white papers, or market studies commissioned or received by Vertex concerning market definition, competitive conditions, or market structure in marketplace platform services or e-commerce retail.
Request No. 3: GMV and Market Share Data
Produce all documents reflecting Vertex's gross merchandise value ("GMV"), net revenue, total revenue, and market share for marketplace platform services for each year of the Relevant Period, broken down by quarter where available. This Request includes, without limitation:
(a) Internal reports, dashboards, spreadsheets, or databases tracking Vertex's GMV, net revenue, and market share over time;
(b) Any internal analyses of competitors' GMV, net revenue, or market share, including but not limited to analyses concerning Cascade (including CascadeMarket, which the FTC has alleged holds approximately 8.2% of the relevant market), Pinnacle (which the FTC has alleged holds approximately 30.1% of the relevant market), Nomad Shops LLC (which the FTC has alleged holds approximately 14.6% of the relevant market), Brevity Social Commerce Inc., Trove Marketplace Inc., and Vertex's own share (which the FTC has alleged is approximately 35.7% of the relevant market);
(c) Any documents reflecting Vertex's assessment of how market shares should be measured (e.g., by GMV, by revenue, by number of active sellers, by number of active buyers, or by any other metric);
(d) Any data, analyses, or documents submitted to, or received from, the FTC, the Department of Justice, any state attorney general, or any other governmental entity concerning market shares, market concentration, or competitive conditions in marketplace platform services or e-commerce retail; and
(e) Any third-party reports, industry analyses, or market research obtained or commissioned by Vertex concerning market shares or competitive positioning in marketplace platform services or e-commerce retail.
Request No. 4: Take Rate Changes and Pricing
Produce all documents concerning any changes to Vertex's take rate, commission structure, listing fees, subscription fees, fulfillment fees, shipping surcharges, advertising fees, payment processing fees, or any other fees charged to third-party sellers during the Relevant Period. This Request includes, without limitation:
(a) Any analyses of competitors' take rates, fee structures, or pricing, including but not limited to analyses of CascadeMarket's take rate (reported at approximately 17% of GMV) and Pinnacle's take rate (reported at approximately 16% of GMV);
(b) Any documents analyzing the relationship between take rate changes and seller acquisition, seller retention, seller satisfaction, seller multi-homing behavior, or seller migration between platforms;
(c) Any documents concerning Vertex's pricing strategy in response to competitive developments in the marketplace platform industry, including but not limited to the launch and growth of CascadeMarket, the entry of Brevity Social Commerce Inc. or Trove Marketplace Inc., or any fee changes implemented by Pinnacle, Nomad Shops, or other competitors;
(d) Any price-cost analyses, margin analyses, or profitability analyses relating to Vertex's marketplace platform services; and
(e) Any documents reflecting Vertex's consideration of, or decision-making regarding, take rate increases, take rate decreases, or changes to the composition of fees charged to third-party sellers, including the rationale for any such changes.
Request No. 5: Seller Acquisition and Retention
Produce all documents concerning Vertex's strategies, programs, initiatives, and metrics for acquiring new third-party sellers and retaining existing sellers on its marketplace platform during the Relevant Period. This Request includes, without limitation:
(a) All data regarding the number of active sellers on Vertex's platform for each quarter of the Relevant Period, including any breakdowns by seller category, seller size, seller geography, or other relevant dimension;
(b) All data regarding seller churn rates, seller attrition, seller onboarding rates, and seller lifetime value for each quarter of the Relevant Period;
(c) All seller satisfaction scores, surveys, feedback reports, or net promoter score ("NPS") data for each year of the Relevant Period;
(d) All documents describing or analyzing Vertex's seller acquisition programs, including marketing campaigns, referral programs, onboarding incentives, fee waivers, promotional pricing, or other initiatives designed to attract new sellers to the platform; and
(e) All documents describing or analyzing Vertex's seller retention programs, including loyalty programs, performance-based fee discounts, seller support services, seller education programs, or other initiatives designed to reduce seller churn and increase seller engagement.
Request No. 6: Seller Multi-Homing
Produce all documents concerning the extent to which Vertex's sellers also sell on other marketplace platforms, including but not limited to CascadeMarket, Pinnacle, Nomad Shops LLC, Brevity Social Commerce Inc., Trove Marketplace Inc., direct-to-consumer e-commerce websites, social commerce platforms, or any other e-commerce channel (i.e., multi-homing behavior). This Request includes, without limitation:
(a) Any studies, surveys, data analyses, or internal reports regarding the proportion of Vertex sellers who simultaneously list products on one or more competing platforms, and the volume of sales generated by such sellers on each platform;
(b) Any documents discussing the competitive significance of seller multi-homing behavior, including whether multi-homing reduces or eliminates switching costs for sellers, increases competitive pressure on platform operators, or otherwise affects competitive conditions in marketplace platform services;
(c) Any documents analyzing the costs, barriers, or friction associated with sellers listing on multiple platforms simultaneously, including the availability and use of multi-channel listing software or services;
(d) Any documents analyzing trends in seller multi-homing behavior over time, including whether multi-homing has increased or decreased during the Relevant Period and the factors driving any such trends; and
(e) Any documents analyzing how seller multi-homing behavior affects Vertex's competitive strategies, pricing decisions, or platform investment decisions.
Request No. 7: Competitive Strategies Regarding Cascade and Pinnacle
Produce all documents concerning Vertex's competitive strategies, plans, or assessments specifically related to Cascade Retail Holdings Inc. (including CascadeMarket) and/or Pinnacle Market Group Inc. during the Relevant Period. This Request includes, without limitation:
(a) Documents discussing the competitive significance of CascadeMarket's launch on June 1, 2019, and its subsequent growth trajectory, including any analyses of CascadeMarket's impact on Vertex's seller base, GMV, market share, or competitive position;
(b) Documents discussing Pinnacle's competitive trajectory, including its market share trends, growth deceleration (if any), increasing seller churn (if any), or any other competitive developments affecting Pinnacle's position in the marketplace platform industry;
(c) Documents discussing any competitive responses or strategic initiatives undertaken by Vertex in direct response to actions, product launches, fee changes, or other competitive moves by Cascade or Pinnacle;
(d) Documents comparing Vertex's platform capabilities, seller services, consumer experience, fulfillment offerings, or pricing with those of Cascade or Pinnacle; and
(e) Win/loss analyses, competitive intelligence reports, or sales reports discussing competition between Vertex and Cascade or Pinnacle for sellers, buyers, or advertising revenue.
Request No. 8: Analysis of the Cascade-Pinnacle Merger
Produce all documents concerning Vertex's analysis, assessment, or discussion of the proposed Merger between Cascade and Pinnacle, announced March 17, 2025. This Request includes, without limitation:
(a) Any analyses of the competitive impact of the Merger on Vertex's business, including any assessments of whether the combined Cascade-Pinnacle entity would represent a stronger, weaker, or equivalent competitive threat to Vertex compared to Cascade and Pinnacle operating independently;
(b) Any analyses of the competitive impact of the Merger on the marketplace platform industry generally, including effects on market concentration, competitive dynamics, pricing, innovation, seller welfare, or consumer welfare;
(c) Any analyses of the competitive impact of the Merger on third-party sellers, including effects on seller fees, seller choice, seller bargaining power, or the availability and quality of marketplace platform services;
(d) Any presentations to Vertex's board of directors, executive committee, investor relations team, or investors concerning the Merger, including slides, memoranda, reports, and talking points;
(e) Any documents discussing whether the Merger would create a stronger competitor to Vertex, facilitate the combined entity's ability to compete more effectively against Vertex, or otherwise affect competition in marketplace platform services or e-commerce retail in any manner; and
(f) Any financial models, valuation analyses, or scenario analyses prepared by or for Vertex assessing the potential effects of the Merger on Vertex's business, market position, revenue, GMV, or profitability.
Request No. 9: Communications with the FTC Concerning the Merger
Produce all communications between Vertex (including any of its officers, directors, employees, agents, consultants, or counsel) and the FTC (including but not limited to Claire Dunmore, Lead Trial Attorney; Samuel Ortega, Senior Trial Counsel; Rebecca Yun; Dr. Nathaniel Hargrove; or any other FTC staff, economists, investigators, or Commissioners) concerning the Cascade-Pinnacle Merger, the FTC's investigation (File No. 251-0089), the FTC's administrative proceeding (Docket No. 9438), or the FTC's district court proceeding (Case No. 2:25-cv-01087-RAJ). This Request includes, without limitation:
(a) Any documents submitted by Vertex to the FTC in response to Civil Investigative Demands ("CIDs"), subpoenas, voluntary access letters, requests for additional information, or other formal or informal requests for information relating to the Merger or to competition in marketplace platform services;
(b) Any documents or data provided by the FTC to Vertex relating to the Merger, market definition, competitive analysis, or any other aspect of the FTC's investigation or litigation;
(c) Any interview notes, memoranda, summaries, or other records of meetings, telephone calls, video conferences, or other communications between Vertex personnel and FTC staff concerning the Merger or related competitive issues;
(d) Any correspondence between Vertex (or its counsel) and the FTC (or its counsel) concerning Vertex's participation as a third-party source of information in the FTC's investigation or litigation; and
(e) Any declarations, affidavits, or witness statements provided by any Vertex employee or representative to the FTC in connection with the Merger investigation or litigation.
Request No. 10: Communications with IOSA Concerning the Merger
Produce all communications between Vertex (including any of its officers, directors, employees, agents, consultants, or counsel) and the Independent Online Sellers Alliance ("IOSA") or its counsel, Galloway & Peck LLP (including Martina Galloway), concerning the Cascade-Pinnacle Merger, competition in marketplace platform services, the FTC's investigation (File No. 251-0089), the FTC's administrative proceeding (Docket No. 9438), or the FTC's district court proceeding (Case No. 2:25-cv-01087-RAJ). This Request includes, without limitation:
(a) Any documents concerning Vertex's membership in, financial contributions to, sponsorship of, or involvement with IOSA, including membership agreements, dues payments, sponsorship records, and correspondence regarding participation in IOSA events or initiatives;
(b) Any documents reflecting IOSA's positions, analyses, or advocacy concerning the Merger, competition in marketplace platform services, or the FTC's enforcement action, to the extent communicated to or shared with Vertex; and
(c) Any documents reflecting Vertex's coordination with IOSA, other IOSA members, or other marketplace industry participants regarding the Merger, the FTC's investigation, or competition in marketplace platform services.
Request No. 11: Communications with Nomad Shops, Brevity, or Trove Concerning the Merger
Produce all communications between Vertex (including any of its officers, directors, employees, agents, consultants, or counsel) and Nomad Shops LLC, Brevity Social Commerce Inc., or Trove Marketplace Inc. (including any of their respective officers, directors, employees, agents, consultants, or counsel) concerning the Cascade-Pinnacle Merger, competition among marketplace platforms, the FTC's investigation (File No. 251-0089), the FTC's administrative proceeding (Docket No. 9438), or the FTC's district court proceeding (Case No. 2:25-cv-01087-RAJ). This Request includes any communications discussing the competitive implications of the Merger, coordinated responses to the Merger, joint submissions to the FTC, or any other matters relating to the Merger or competition in marketplace platform services.
Request No. 12: Entry and Expansion — New Marketplace Entrants
Produce all documents concerning new entrants into the marketplace platform industry during the Relevant Period, or the expansion of existing marketplace platforms into new product categories, geographies, or seller segments. This Request includes, without limitation:
(a) Documents analyzing or discussing the entry and growth of Brevity Social Commerce Inc. (launched in 2023), Trove Marketplace Inc. (launched in 2024), and any other new marketplace platforms launched during the Relevant Period;
(b) Documents analyzing or discussing the expansion of social commerce platforms (i.e., platforms that enable commerce through social media channels) and their competitive significance to Vertex's marketplace platform business;
(c) Documents analyzing barriers to entry in the marketplace platform industry, including but not limited to network effects, economies of scale, seller acquisition costs, consumer acquisition costs, brand recognition, fulfillment infrastructure requirements, technology development costs, and regulatory requirements;
(d) Documents assessing whether new entry or expansion by existing platforms has constrained Vertex's pricing, fee structures, or competitive behavior during the Relevant Period;
(e) Documents discussing the likelihood or potential for additional entry into the marketplace platform industry in the future, including assessments of potential entrants, entry strategies, and conditions facilitating or impeding entry; and
(f) Documents discussing the competitive significance of entry or expansion by any platform during the Relevant Period, including whether such entry has resulted in meaningful competitive constraints on incumbent marketplace platforms.
Request No. 13: Innovation and Platform Development
Produce all documents concerning Vertex's investments in platform innovation, technology development, seller tools, fulfillment services, advertising products, data analytics, artificial intelligence applications, or consumer experience improvements during the Relevant Period. This Request includes, without limitation:
(a) Documents describing Vertex's research and development expenditures and priorities for its marketplace platform business, including annual R&D budgets, project roadmaps, and technology investment plans;
(b) Documents analyzing how competitive pressure from Cascade (including CascadeMarket), Pinnacle, Nomad Shops, Brevity Social Commerce, Trove Marketplace, or any other marketplace platform has driven or influenced Vertex's innovation strategy, product development priorities, or investment decisions;
(c) Documents analyzing how innovation and product differentiation affect competition among marketplace platforms, including whether platform innovation is an important dimension of competition and how it affects seller and consumer choice; and
(d) Documents analyzing how the Merger might affect innovation incentives in the marketplace platform industry, including whether the combination of Cascade and Pinnacle would increase or decrease innovation competition.
Request No. 14: Fulfillment and Logistics Services
Produce all documents concerning Vertex's fulfillment and logistics services offered to third-party sellers during the Relevant Period, including warehousing, inventory management, order fulfillment, shipping, delivery, and returns processing. This Request includes, without limitation:
(a) Documents describing Vertex's fulfillment infrastructure, including the number, location, and capacity of fulfillment centers, warehouses, and distribution facilities;
(b) Any analyses comparing Vertex's fulfillment capabilities, service levels, pricing, or geographic reach with those of Cascade's 22-warehouse fulfillment network, Pinnacle's logistics operations, Nomad Shops' fulfillment offerings, or any other competitor's fulfillment services;
(c) Documents analyzing how the Merger might affect competition in seller fulfillment services, including whether the combination of Cascade's fulfillment infrastructure with Pinnacle's seller base and logistics operations would create a materially different competitive offering; and
(d) Documents analyzing the role of fulfillment services as a competitive differentiator among marketplace platforms, including whether sellers consider fulfillment capabilities when selecting platforms on which to sell.
Request No. 15: Internal Communications Among Senior Executives
Produce all communications among Vertex's officers, directors, and senior management (at the level of Vice President and above) concerning the Cascade-Pinnacle Merger, competition in marketplace platform services, market definition issues, or the FTC's investigation or litigation, during the period from January 1, 2025 through the date of compliance with this Subpoena. This Request includes, without limitation:
(a) All emails, text messages, instant messages (including Meridian Solutions, Northgate Data Systems, or similar platforms), and other written or electronic communications among such personnel on the foregoing topics;
(b) Board of directors minutes, committee minutes (including audit committee, strategy committee, and compensation committee minutes), and board resolutions addressing any of the foregoing topics;
(c) Executive meeting agendas, presentations, and minutes discussing any of the foregoing topics; and
(d) Any notes, memoranda, or summaries of discussions among senior executives concerning any of the foregoing topics.
Request No. 16: Documents Provided to or Received from Third-Party Counsel or Advisors Concerning the Merger
Produce all documents provided by Vertex to, or received by Vertex from, any outside counsel, consultant, economic advisor, financial advisor, or other third-party advisor retained to advise Vertex on the competitive implications of the Cascade-Pinnacle Merger, to assist Vertex in responding to FTC inquiries concerning the Merger, or to otherwise analyze the Merger's potential impact on Vertex's business or competitive position. This Request includes, without limitation:
(a) Engagement letters, statements of work, or similar agreements retaining such advisors;
(b) Reports, analyses, presentations, memoranda, or other work product prepared by such advisors for Vertex concerning the Merger;
(c) Data, documents, or information provided by Vertex to such advisors in connection with their engagement; and
(d) Correspondence between Vertex and such advisors concerning the scope, methodology, findings, or conclusions of their work relating to the Merger.
Note: This Request does not seek documents protected by the attorney-client privilege or the work product doctrine. If any documents responsive to this Request are withheld on the basis of attorney-client privilege or work product protection, Vertex shall provide a privilege log in accordance with the Instructions set forth in Section III.A.5 of this Subpoena.
V. NOTICE OF RIGHTS AND OBLIGATIONS UNDER FEDERAL RULE OF CIVIL PROCEDURE 45
Vertex Commerce Inc. is hereby advised of the following rights and obligations under Federal Rule of Civil Procedure 45:
1. Right to Object. Pursuant to Federal Rule of Civil Procedure 45(d)(2)(B), Vertex may serve written objections to this Subpoena on the issuing party before the earlier of: (a) the time specified for compliance (July 30, 2025); or (b) fourteen (14) days after service of this Subpoena. If timely objections are served, the issuing party may not inspect or copy materials responsive to the objected-to portions of the Subpoena, except pursuant to an order of the Court.
2. Duty to Preserve. Upon receipt of this Subpoena, Vertex has an obligation to preserve all documents and ESI that may be responsive to the Document Requests set forth in Schedule A. Vertex must take immediate steps to ensure that no responsive documents or ESI are destroyed, altered, discarded, overwritten, or otherwise made unavailable, including by suspending any routine document destruction or data retention policies that might result in the loss of responsive materials. Failure to preserve responsive documents may result in sanctions, adverse inference instructions, or other remedial measures.
3. Right to Move to Quash or Modify. Pursuant to Federal Rule of Civil Procedure 45(d)(3), Vertex may move to quash or modify this Subpoena if it: (a) fails to allow a reasonable time to comply; (b) requires a person to comply beyond the geographical limits specified in Rule 45(c); (c) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (d) subjects Vertex to undue burden. Any motion to quash or modify must be filed in the court for the district where compliance is required. Because the documents are to be produced in San Francisco, California, any such motion should be filed in the United States District Court for the Northern District of California, unless the parties agree otherwise or the Court directs otherwise.
4. Sanctions for Non-Compliance. Pursuant to Federal Rule of Civil Procedure 45(g), the Court may hold in contempt any person who, having been served with a subpoena, fails without adequate excuse to obey the subpoena or an order related to it.
5. Pending Proceedings. This Subpoena is issued in connection with pending proceedings before the Honorable Richard A. Johannsen in Case No. 2:25-cv-01087-RAJ in the United States District Court for the Western District of Washington. The FTC has moved for a preliminary injunction seeking to temporarily enjoin the consummation of the Merger, and an evidentiary hearing on the FTC's motion is scheduled for September 8, 2025. The fact discovery deadline is August 4, 2025. Timely compliance with this Subpoena is essential to Defendant Cascade Retail Holdings Inc.'s ability to prepare its defense.
6. Cost Reimbursement. As stated in the Instructions, Defendant Cascade Retail Holdings Inc. will reimburse Vertex for the reasonable costs of compliance with this Subpoena, consistent with the requirements of Rule 45(d)(2)(B)(ii). Vertex is encouraged to contact undersigned counsel promptly to discuss the anticipated scope and cost of compliance.
VI. SIGNATURE BLOCK AND CERTIFICATION
This Subpoena is issued by the undersigned as an officer of the court authorized to issue subpoenas under Federal Rule of Civil Procedure 45(a)(3), on behalf of Defendant Cascade Retail Holdings Inc.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
Counsel for Defendant Cascade Retail Holdings Inc.
By: ________
Aaron Liu, Esq. Working Associate Calderwood & Harkness LLP 555 California Street, Suite 2700 San Francisco, CA 94104 Telephone: (415) 882-7300
Email: aliu@calderwoodharkness.com
Responsible Partner: Howard Bellamy, Esq. Calderwood & Harkness LLP 1401 K Street NW, Suite 1200 Washington, D.C. 20005 Telephone: (202) 451-3400
Email: hbellamy@calderwoodharkness.com
Billing Partner: Elaine Forsythe, Esq. Calderwood & Harkness LLP 1401 K Street NW, Suite 1200 Washington, D.C. 20005 Telephone: (202) 451-3400
Email: eforsythe@calderwoodharkness.com
Matter Number: 1038-00001
Date: July 16, 2025
VII. CERTIFICATE OF SERVICE
I, Aaron Liu, hereby certify that on July 16, 2025, a true and correct copy of the foregoing Subpoena Duces Tecum to Vertex Commerce Inc. was served as follows:
1. Service on the Subpoena Recipient:
A copy of this Subpoena, together with all attachments, was served on Vertex Commerce Inc. by personal service at:
Vertex Commerce Inc.
Attention: Office of the General Counsel
2100 North First Street San Jose, CA 95131
Service was effected by a professional process server in accordance with Federal Rule of Civil Procedure 45(b)(1).
2. Notice to All Parties:
In accordance with Federal Rule of Civil Procedure 45(a)(4), prior written notice of this Subpoena was served on all parties to Case No. 2:25-cv-01087-RAJ, as follows:
Counsel for Plaintiff Federal Trade Commission:
Claire Dunmore, Esq. Lead Trial Attorney Federal Trade Commission Bureau of Competition, Mergers IV Division 600 Pennsylvania Avenue NW Washington, D.C. 20580
Email: cdunmore@ftc.gov
Samuel Ortega, Esq. Senior Trial Counsel Federal Trade Commission Bureau of Competition, Mergers IV Division 600 Pennsylvania Avenue NW Washington, D.C. 20580
Email: sortega@ftc.gov