EXPERT RETENTION AGREEMENT
July 2, 2025
This Expert Retention Agreement (this "Agreement") is entered into as of July 2, 2025 (the "Effective Date"), by and between:
Calderwood & Harkness LLP, a New York limited liability partnership, with offices at 1401 K Street NW, Suite 1200, Washington, D.C. 20005 ("Retaining Counsel" or the "Firm"), acting on behalf of its client Cascade Retail Holdings Inc., a Delaware corporation with its principal place of business at 2200 Westlake Avenue North, Suite 3400, Seattle, Washington 98109 ("Client" or "Cascade");
and
Brindoval Analytics LLC, a Delaware limited liability company, with its principal place of business at 1700 Pennsylvania Avenue NW, Suite 550, Washington, D.C. 20006 ("Consultant" or "Brindoval").
Retaining Counsel and Brindoval are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Cascade Retail Holdings Inc. is a defendant in the matter captioned Federal Trade Commission v. Cascade Retail Holdings Inc. et al., Case No. 2:25-cv-01087-RAJ, pending in the United States District Court for the Western District of Washington, Seattle Division, before the Honorable Richard A. Johannsen (the "District Court Proceeding");
WHEREAS, the Federal Trade Commission (the "FTC") has also initiated an administrative proceeding, FTC Docket No. 9438, pursuant to Part 3 of the FTC's Rules of Practice (the "Administrative Proceeding," and together with the District Court Proceeding, the "Proceedings");
WHEREAS, the Proceedings relate to Cascade's proposed acquisition of Pinnacle Market Group Inc. ("Pinnacle"), a Delaware corporation headquartered at 500 East 6th Street, Suite 800, Austin, Texas 78701, pursuant to an Agreement and Plan of Merger dated March 14, 2025, for aggregate consideration of Four Billion Seven Hundred Million Dollars ($4,700,000,000) (the "Transaction");
WHEREAS, Calderwood & Harkness LLP serves as lead defense counsel for Cascade in the Proceedings, under C&H Matter No. 1038-00001;
WHEREAS, Brindoval Analytics LLC is an economic consulting firm specializing in antitrust and competition matters, with deep expertise in merger analysis, market definition, and competitive effects, and the Firm desires to retain Brindoval to provide expert economic analysis and testimony in connection with the defense of the Proceedings;
WHEREAS, Howard Bellamy, Responsible Partner, Antitrust & Competition Practice Group, Calderwood & Harkness LLP (Washington, D.C. office), is the primary point of contact for Retaining Counsel with respect to this engagement; and
WHEREAS, the Parties wish to set forth the terms and conditions upon which Brindoval will be retained to perform expert consulting and testifying services in the Proceedings.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: ENGAGEMENT AND SCOPE OF SERVICES
1.1 Retention of Testifying Expert
Retaining Counsel hereby retains Brindoval, and Brindoval hereby agrees to be retained, to provide expert economic analysis and testimony in the Proceedings on behalf of Cascade. Brindoval shall designate Dr. Priya Ramanathan, Managing Director, as the testifying expert on behalf of Cascade in the Proceedings. Dr. Ramanathan holds a Ph.D. in Economics from Stanford University, and her qualifications are further described in Exhibit A attached hereto. Dr. Ramanathan shall serve as the primary testifying expert witness for Cascade on all economic issues arising in the Proceedings.
In her capacity as testifying expert, Dr. Ramanathan shall provide expert opinions, prepare written expert reports, and testify at deposition, evidentiary hearings (including the preliminary injunction evidentiary hearing currently scheduled to commence on September 8, 2025, and estimated to last five (5) court days), and any trial or administrative hearing in the Proceedings. Dr. Ramanathan's testimony shall be based on her independent analysis and professional judgment, subject to the provisions of Section 4 below.
1.2 Retention of Consulting Economist
In addition to the designation of Dr. Ramanathan as testifying expert, Brindoval shall designate Dr. Lucas Engström, Senior Economist, as a consulting (non-testifying) economist to support Dr. Ramanathan's analysis and to assist Retaining Counsel with litigation strategy, case preparation, and the evaluation of opposing expert analyses. Dr. Engström's qualifications are further described in Exhibit A attached hereto.
Dr. Engström's work shall be performed at the direction of Retaining Counsel and is intended to remain protected by the attorney work-product doctrine. Dr. Engström's analyses, memoranda, draft materials, and communications shall not be disclosed to any person or entity outside of the attorney-client and work-product privilege without the prior written consent of Retaining Counsel. Brindoval and Retaining Counsel shall take all reasonable steps to preserve the work-product protection applicable to Dr. Engström's consulting work.
1.3 Scope of Expert Services
The services to be performed by Brindoval under this Agreement (collectively, the "Services") shall include, without limitation, the following:
(a) Market Definition Analysis. Analysis and opinion on the proper definition of the relevant product market(s) and geographic market(s) for purposes of evaluating the competitive effects of the Transaction. This analysis shall include a thorough evaluation of the FTC's proposed relevant market of "online marketplace platform services for third-party sellers in the United States" and consideration of alternative market definitions, including broader "all e-commerce retail" market definitions and any additional market definitions that Dr. Ramanathan determines to be appropriate based on the facts, data, and accepted economic methodology. The analysis shall apply the hypothetical monopolist test, critical loss analysis, and other standard tools of market definition as warranted.
(b) Competitive Effects Analysis. Comprehensive competitive effects analysis, including assessment of both unilateral effects and coordinated effects that the FTC alleges may result from the Transaction. This analysis shall include evaluation of market concentration, including the FTC's asserted pre-merger Herfindahl-Hirschman Index ("HHI") of 2,361, post-merger HHI of 2,856, and HHI delta of 495, and an assessment of the competitive significance and market positioning of marketplace participants including Vertex Commerce Inc., Nomad Shops LLC, Brevity Social Commerce Inc., Trove Marketplace Inc., and other platforms. The analysis shall also evaluate diversion ratios, pricing pressure indices, and such other quantitative measures of competitive effects as Dr. Ramanathan deems appropriate.
(c) Market Share Analysis. Critical review and analysis of the FTC's market share allegations, including the FTC's claimed shares by gross merchandise value ("GMV"): Cascade/CascadeMarket at 8.2%, Pinnacle at 30.1%, combined at 38.3%, Vertex Commerce at 35.7%, Nomad Shops at 14.6%, and all others at 11.4%. This analysis shall evaluate the FTC's methodology for calculating market shares, the appropriate metrics for measuring competitive significance in online marketplace platform services, and whether alternative share calculations (including by revenue, number of active sellers, number of transactions, or other metrics) would provide a more accurate depiction of competitive conditions.
(d) Merger Efficiencies Analysis. Evaluation of merger-specific efficiencies projected to result from the Transaction, including Cascade's projection of approximately $340 million in annual efficiencies by Year 3 post-closing. This projection comprises approximately $195 million in logistics and fulfillment cost savings from the integration of Pinnacle's sellers into Cascade's twenty-two-warehouse fulfillment network and approximately $145 million in technology and platform synergies. Dr. Ramanathan shall assess whether these efficiencies are merger-specific, verifiable, and cognizable under the standards set forth in the applicable Merger Guidelines and relevant case law, and whether such efficiencies are sufficient to offset any competitive harm alleged by the FTC.
(e) Entry and Expansion Analysis. Assessment of entry conditions, barriers to entry, and the likelihood and sufficiency of entry and expansion in online marketplace and e-commerce markets. This analysis shall consider the ease with which new marketplace platforms can enter the relevant market, the history of entry and expansion in online marketplace services, the minimum viable scale required for a competitive marketplace platform, and the timeliness and sufficiency of potential entry to counteract any competitive effects of the Transaction.
(f) Pinnacle Competitive Trajectory Analysis. Analysis of Pinnacle's competitive trajectory and financial performance, including the significance of Pinnacle's decelerating GMV growth (from 28% year-over-year in 2022 to 9% year-over-year in 2024) and increasing seller churn rate (from 12% in 2022 to 21% in 2024) on the assessment of competitive effects. This analysis may include evaluation of whether Pinnacle's trajectory supports any argument that Pinnacle is a weakened competitor, that the but-for competitive significance of Pinnacle absent the Transaction would be less than its current market share suggests, or that Pinnacle qualifies under a "flailing firm" or related framework.
(g) Rebuttal of FTC's Economic Expert. Review and critique of the expert opinions, reports, and analyses of the FTC's economic expert, Dr. Wallace Keenan of Thornfield Research Group, and preparation of rebuttal expert reports responding to Dr. Keenan's affirmative analysis. This shall include identification of any methodological errors, data limitations, unsupported assumptions, or analytical shortcomings in Dr. Keenan's work.
(h) Review of FTC Staff Economics. Review and critique of any economic analyses prepared or submitted by FTC Bureau of Economics staff economist Dr. Nathaniel Hargrove, to the extent such analyses are produced or made available in the Proceedings.
(i) Demonstrative Exhibits and Models. Preparation of demonstrative exhibits, charts, graphs, economic models, and other illustrative materials for use at the preliminary injunction hearing and any subsequent proceedings, including the Administrative Proceeding, as directed by Retaining Counsel.
(j) Additional Analysis. Such other economic analysis as may be reasonably requested by Retaining Counsel in connection with the Proceedings, including assistance with the preparation of cross-examination of the FTC's economic expert, review of third-party submissions, and analysis of any new evidence or arguments raised during the course of the Proceedings.
1.4 Key Deliverables and Timeline
Brindoval shall deliver the following key deliverables in accordance with the timeline set forth below, subject to any modifications ordered by the Court or agreed upon by the parties to the Proceedings:
(a) Affirmative Expert Report. Dr. Ramanathan's affirmative expert report, including all supporting data, exhibits, appendices, and a complete statement of opinions in compliance with Federal Rule of Civil Procedure 26(a)(2)(B), shall be due on or before August 18, 2025.
(b) Rebuttal Expert Report. Dr. Ramanathan's rebuttal expert report, responding to the affirmative expert report of the FTC's expert, Dr. Wallace Keenan, shall be due on or before August 29, 2025.
(c) Preliminary Injunction Hearing Testimony. Dr. Ramanathan shall be available to testify at the preliminary injunction evidentiary hearing, currently scheduled to commence on September 8, 2025, and on such subsequent hearing days as may be required by the Court's hearing schedule.
(d) Deposition Testimony. Dr. Ramanathan shall be available for deposition preparation sessions with Retaining Counsel and for deposition testimony as scheduled by the parties and the Court in accordance with the applicable case management order and scheduling order.
Brindoval shall use commercially reasonable efforts to meet the foregoing deadlines and shall promptly notify Retaining Counsel if any circumstances arise that may affect its ability to deliver any key deliverable on time.
SECTION 2: COMPENSATION AND EXPENSES
2.1 Flat Fee
In consideration of the Services to be performed by Brindoval through and including the conclusion of the preliminary injunction evidentiary hearing currently scheduled for September 8, 2025 (the "PI Hearing"), Cascade (through Retaining Counsel) shall pay Brindoval a flat fee of One Million Eight Hundred Thousand Dollars ($1,800,000) (the "Flat Fee"). The Flat Fee constitutes the complete compensation for all professional time of Dr. Ramanathan, Dr. Engström, and all other Brindoval staff assigned to the engagement during the period covered by this Agreement, and includes all time spent on report preparation, data analysis, econometric modeling, deposition preparation and testimony, hearing preparation and testimony, internal meetings and coordination with Retaining Counsel, and any other professional services rendered in connection with the Proceedings through the conclusion of the PI Hearing.
2.2 Payment Schedule
The Flat Fee shall be payable in three (3) equal installments as follows:
(a) First Installment: Six Hundred Thousand Dollars ($600,000), due and payable upon execution of this Agreement;
(b) Second Installment: Six Hundred Thousand Dollars ($600,000), due and payable upon submission of Dr. Ramanathan's affirmative expert report (currently scheduled for August 18, 2025);
(c) Third Installment: Six Hundred Thousand Dollars ($600,000), due and payable upon conclusion of the PI Hearing.
Each installment shall be due within ten (10) business days after the occurrence of the applicable triggering event. If any payment is not received within thirty (30) calendar days after the applicable due date, interest shall accrue on the unpaid balance at the rate of one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less.
2.3 Expenses. In addition to the Flat Fee, Cascade (through Retaining Counsel) shall reimburse Brindoval for reasonable out-of-pocket expenses actually incurred in connection with the performance of the Services, including but not limited to the following:
(a) Travel expenses, including airfare (coach class for flights under three hours; business class for flights of three hours or more), rail transportation, ground transportation, and parking;
(b) Lodging and hotel accommodations at reasonable commercial rates for hearing attendance, meetings with Retaining Counsel, and other engagement-related travel;
(c) Meals incurred during engagement-related travel and meetings;
(d) Data acquisition and licensing fees, including fees for third-party data sets, financial databases, and industry reports necessary for the performance of the Services;
(e) Printing, reproduction, and binding costs for expert reports, demonstrative exhibits, and other engagement materials;
(f) Costs of third-party data processing, statistical analysis services, or specialized computational resources required for the engagement; and
(g) Other reasonable expenses approved in advance by Retaining Counsel.
Any individual expense exceeding Twenty-Five Thousand Dollars ($25,000) or aggregate expenses exceeding Seventy-Five Thousand Dollars ($75,000) shall require the prior written approval of Retaining Counsel before being incurred. Expenses shall be invoiced on a monthly basis, and payment shall be due within thirty (30) days of receipt of each invoice, accompanied by reasonable supporting documentation.
2.4 Additional Proceedings
In the event that the engagement extends beyond the conclusion of the PI Hearing — including, without limitation, any administrative trial before the FTC in the Administrative Proceeding (FTC Docket No. 9438), any appellate proceedings in the United States Court of Appeals, or any other post-PI proceedings — the Parties shall negotiate in good faith a supplemental fee arrangement. Any such supplemental arrangement shall be memorialized in a written amendment to this Agreement. In the absence of a supplemental fee arrangement, Brindoval's services for any post-PI work shall be compensated at Brindoval's then-standard hourly rates, which as of the Effective Date are as follows:
Brindoval shall provide Retaining Counsel with written notice of any changes to its standard hourly rates at least thirty (30) days prior to the effective date of such changes.
2.5 Invoicing and Payment
All invoices for the Flat Fee installments and for reimbursable expenses shall be directed to:
Calderwood & Harkness LLP
Attention: Elaine Forsythe, Billing Partner
1401 K Street NW, Suite 1200 Washington, D.C. 20005
All invoices shall reference C&H Matter No. 1038-00001 and shall include the client name "Cascade Retail Holdings Inc." Invoices for expenses shall include itemized descriptions of each expense and supporting receipts or documentation as reasonably requested by Retaining Counsel.
SECTION 3: CONFIDENTIALITY AND PRIVILEGE
3.1 Confidential Information
For purposes of this Agreement, "Confidential Information" means all documents, data, analyses, communications, and information, in any form or medium, provided to or generated by Brindoval in connection with this engagement, including but not limited to:
(a) Documents, data, and materials produced by Cascade, Pinnacle Market Group Inc., or third parties in the Proceedings, whether produced in discovery, in response to FTC civil investigative demands, or otherwise;
(b) Attorney-client privileged communications and attorney work product of Calderwood & Harkness LLP and Cascade, including but not limited to legal memoranda, strategy discussions, case assessments, and privileged communications with Retaining Counsel;
(c) Business-sensitive and proprietary information of Cascade, Pinnacle, or other parties, including but not limited to seller data, GMV data, take rate information, customer lists, pricing information, internal strategic plans, integration planning documents, financial projections, and competitive intelligence;
(d) Brindoval's own draft analyses, preliminary opinions, working models, internal work papers, and intermediate work product prepared in connection with this engagement, to the extent such materials do not constitute part of Dr. Ramanathan's final testifying expert work product subject to disclosure under the Federal Rules of Civil Procedure; and
(e) The terms of this Agreement, including the compensation structure and amounts, except as required to be disclosed in Dr. Ramanathan's expert report pursuant to Federal Rule of Civil Procedure 26(a)(2)(B)(vi) or by order of the Court.
3.2 Non-Disclosure Obligations
Brindoval shall not disclose Confidential Information to any person or entity other than the following, without the prior written consent of Retaining Counsel:
(a) Retaining Counsel and its attorneys, paralegals, and staff directly involved in the Proceedings;
(b) Cascade's in-house legal team, including Jerome Weston, General Counsel and Corporate Secretary, and such other in-house counsel as Retaining Counsel may designate in writing; and
(c) Brindoval personnel directly assigned to the engagement, who have been informed of the confidential nature of the engagement and have agreed to be bound by the confidentiality obligations set forth herein.
Brindoval shall not use Confidential Information for any purpose other than the performance of the Services under this Agreement. Brindoval's obligations under this Section 3 shall survive termination or expiration of this Agreement and shall continue in full force and effect indefinitely, except to the extent that specific Confidential Information becomes publicly available through no fault or act of Brindoval.
3.3 Protective Order Compliance
Brindoval and all of its personnel who may access materials produced or designated as confidential in the Proceedings shall comply with any and all protective orders entered by the Court in Case No. 2:25-cv-01087-RAJ (W.D. Wash.) and any confidentiality orders, protective orders, or confidentiality provisions in the Administrative Proceeding (FTC Docket No. 9438). To the extent any protective order imposes obligations that are more restrictive than those set forth in this Agreement, the more restrictive provisions shall control.
All Brindoval personnel who may access materials designated as "Confidential," "Highly Confidential — Attorneys' Eyes Only," or any similar designation under any applicable protective order shall execute all appropriate acknowledgment and undertaking forms required by such protective order prior to obtaining access to such materials. Brindoval shall maintain records of all such acknowledgments and shall make such records available to Retaining Counsel upon request.
3.4 Privilege and Work Product Protection
The Parties acknowledge and agree to the following principles regarding privilege and work-product protection:
(a) Dr. Engström's work as a consulting (non-testifying) economist is intended to remain protected by the attorney work-product doctrine. Dr. Engström's analyses, memoranda, opinions, and communications are being prepared at the direction of Retaining Counsel in anticipation of litigation and for the purpose of assisting counsel with legal strategy. No disclosure of Dr. Engström's work shall be made without the prior written consent of Retaining Counsel.
(b) Dr. Ramanathan's work as a testifying expert is subject to the disclosure obligations under Federal Rule of Civil Procedure 26(a)(2). The Parties understand and agree that Dr. Ramanathan's final expert reports, the data and facts considered by Dr. Ramanathan in forming her opinions, and any exhibits and summaries relied upon by Dr. Ramanathan will be disclosed to the opposing parties in the Proceedings as required by Rule 26(a)(2)(B) and the applicable case management order.
(c) Consistent with the 2010 amendments to Federal Rule of Civil Procedure 26, communications between Retaining Counsel and Dr. Ramanathan relating to compensation for her study or testimony, the identification of facts and data that Retaining Counsel provided to Dr. Ramanathan and that Dr. Ramanathan considered in forming her opinions, and assumptions that Retaining Counsel provided to Dr. Ramanathan and that Dr. Ramanathan relied upon in forming her opinions are discoverable under Rule 26(b)(4)(C). All other communications between Retaining Counsel and Dr. Ramanathan are protected from disclosure under Rule 26(b)(4)(B) and (C), regardless of their form.
(d) Draft expert reports of Dr. Ramanathan are protected from disclosure under Rule 26(b)(4)(B), regardless of the form in which such drafts are recorded.
The Parties shall cooperate to preserve all applicable privileges and protections, and neither Party shall take any action that would result in a waiver of any applicable privilege or protection without the prior written consent of the other Party.
SECTION 4: EXPERT INDEPENDENCE AND PROFESSIONAL OBLIGATIONS
4.1 Independence of Opinions
Brindoval and Dr. Ramanathan shall form and express all opinions independently, based on Dr. Ramanathan's professional judgment, the application of generally accepted economic methodology and principles, and the facts and data available to Dr. Ramanathan. The integrity and credibility of Dr. Ramanathan's expert testimony depend upon the independence of her analysis, and the Parties acknowledge the importance of maintaining that independence throughout the engagement.
Retaining Counsel may provide legal direction to Brindoval, identify areas of economic inquiry relevant to the Proceedings, supply factual materials and data for review and consideration, and convey assumptions based on the factual record. However, Retaining Counsel shall not direct or dictate the substance of Dr. Ramanathan's expert opinions or conclusions. In the event that Dr. Ramanathan's independent analysis leads to conclusions that are unfavorable to Cascade's position, Dr. Ramanathan shall promptly inform Retaining Counsel, and the Parties shall discuss how such conclusions should be addressed within the context of the overall engagement.
Dr. Ramanathan's expert reports shall comply in all respects with Federal Rule of Civil Procedure 26(a)(2)(B), and shall contain the following:
(i) A complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) The facts or data considered by the witness in forming them;
(iii) Any exhibits that will be used to summarize or support them;
(iv) The witness's qualifications, including a list of all publications authored in the previous ten years;
(v) A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
(vi) A statement of the compensation to be paid for the study and testimony in the case.
4.2 Prior Testimony Disclosure
Dr. Ramanathan shall provide to Retaining Counsel a complete and accurate list of all cases in which she has testified as an expert at trial or by deposition during the preceding four (4) years, for inclusion in her expert report pursuant to Federal Rule of Civil Procedure 26(a)(2)(B)(v). Such list shall include the case name, court or tribunal, case number, the party on whose behalf Dr. Ramanathan testified, and the date(s) of her testimony. Dr. Ramanathan shall promptly update this list if any additional testimony occurs between the Effective Date and the submission of her expert report.
4.3 No Conflicts
Brindoval represents and warrants that, as of the Effective Date:
(a) Neither Dr. Ramanathan nor Dr. Engström has any financial interest, whether direct or indirect, in Cascade Retail Holdings Inc. (Nasdaq: CSRT), Pinnacle Market Group Inc. (Nasdaq: PMGI), Vertex Commerce Inc., Nomad Shops LLC, Brevity Social Commerce Inc., Trove Marketplace Inc., or any other party to or competitor identified in the Proceedings;
(b) Brindoval has not been retained by the FTC, Thornfield Research Group, Dr. Wallace Keenan, or any opposing party or intervenor in connection with this Transaction or any related matter;
(c) Brindoval has conducted a reasonable conflicts check and is not aware of any existing engagement, relationship, or interest that would create a conflict of interest with respect to this engagement; and
(d) No Brindoval personnel assigned to this engagement has any personal, financial, or professional relationship with any party or counsel in the Proceedings that would impair the independence or objectivity of the Services.
Brindoval shall promptly notify Retaining Counsel of any actual or potential conflict of interest that arises during the course of the engagement. In the event that a conflict arises that cannot be resolved to the reasonable satisfaction of Retaining Counsel, Retaining Counsel shall have the right to terminate this Agreement in accordance with Section 7.
SECTION 5: DOCUMENT RETENTION AND MANAGEMENT
5.1 Document Retention
Brindoval shall maintain complete and organized files of all documents, data, analyses, communications, and work product generated or received in connection with this engagement. Such files shall be maintained in a manner that enables efficient retrieval and production, and shall be organized by subject matter, date, and document type as appropriate.
Brindoval shall not destroy, alter, delete, or dispose of any materials related to the engagement — whether in paper or electronic form — without the prior written approval of Retaining Counsel. The Parties acknowledge that the Proceedings are ongoing litigation, and Brindoval is subject to the litigation hold obligations applicable to the Proceedings. Brindoval shall take all reasonable steps to preserve all potentially relevant materials, including suspending any routine document destruction or data purging policies that might otherwise apply to engagement materials.
5.2 Return of Materials
Upon termination or expiration of this Agreement, or upon the written request of Retaining Counsel at any time during or after the engagement, Brindoval shall promptly return to Retaining Counsel, or at Retaining Counsel's direction, securely destroy, all Confidential Information and materials provided by Retaining Counsel, Cascade, or any other source in connection with this engagement. Within fifteen (15) business days of any such request or of termination, Brindoval shall provide Retaining Counsel with a written certification, executed by an authorized officer of Brindoval, confirming that such return or destruction has been completed in full.
Notwithstanding the foregoing, Brindoval may retain one (1) archival copy of its own work product (excluding Confidential Information provided by Retaining Counsel or Cascade that is not incorporated into Brindoval's own analytical work product) for record-keeping and professional compliance purposes, subject to the continuing confidentiality obligations set forth in Section 3 of this Agreement. Any such retained archival copy shall be maintained in a secure location with access restricted to authorized Brindoval personnel.
5.3 Electronic Data Security
Brindoval shall maintain commercially reasonable data security measures for all electronic files, data, and information associated with this engagement, consistent with industry standards for the protection of confidential and sensitive information. Such measures shall include, at a minimum:
(a) Encryption of all data at rest and in transit using AES-256 or equivalent encryption standards;
(b) Secure access controls, including multi-factor authentication, role-based access permissions, and unique user credentials for all personnel accessing engagement data;
(c) Regular security assessments and monitoring of systems used to store or process engagement data;
(d) Secure disposal of electronic media containing engagement data upon completion of the engagement or at Retaining Counsel's direction; and
(e) Compliance with any data security provisions contained in any applicable protective order entered in the Proceedings.
In the event of any actual or suspected data breach, unauthorized access, or security incident involving engagement data, Brindoval shall notify Retaining Counsel in writing within twenty-four (24) hours of discovery and shall cooperate fully with Retaining Counsel in investigating and remediating the incident.
SECTION 6: PERSONNEL
6.1 Key Personnel
The following individuals are designated as key personnel for this engagement (collectively, "Key Personnel"):
• Dr. Priya Ramanathan — Managing Director, Brindoval Analytics LLC, serving as Testifying Expert;
• Dr. Lucas Engström — Senior Economist, Brindoval Analytics LLC, serving as Consulting Expert.
The designation and availability of Key Personnel is a material inducement to Retaining Counsel's decision to enter into this Agreement. Brindoval shall not substitute, replace, or reassign any Key Personnel without the prior written consent of Retaining Counsel, which consent shall not be unreasonably withheld. In the event that any Key Personnel becomes unavailable due to death, disability, or other extraordinary circumstances beyond Brindoval's control, Brindoval shall promptly notify Retaining Counsel and shall propose a qualified replacement. Retaining Counsel shall have the right, in its sole discretion, to accept or reject any proposed replacement, and if no mutually acceptable replacement can be identified, either Party may terminate this Agreement in accordance with Section 7.
6.2 Supporting Staff
Brindoval may assign additional analysts, researchers, data scientists, and administrative support staff as reasonably necessary to perform the Services, provided that all such personnel:
(a) Are subject to the confidentiality and privilege obligations set forth in Section 3 of this Agreement;
(b) Have been informed of the sensitive and privileged nature of the engagement;
(c) Have executed all required protective order acknowledgment forms prior to accessing any materials designated as confidential under any applicable protective order; and
(d) Are qualified by education, training, or experience to perform the tasks assigned to them.
Brindoval shall maintain a current list of all personnel assigned to the engagement and shall make such list available to Retaining Counsel upon request. All work performed by supporting staff shall be under the supervision and direction of the Key Personnel.
6.3 Points of Contact
Brindoval's primary point of contact for all matters related to this engagement shall be Dr. Priya Ramanathan, who may be reached at Brindoval Analytics LLC, 1700 Pennsylvania Avenue NW, Suite 550, Washington, D.C. 20006.
Retaining Counsel's primary points of contact for this engagement shall be:
• Howard Bellamy, Responsible Partner, Antitrust & Competition Practice Group, Calderwood & Harkness LLP, 1401 K Street NW, Suite 1200, Washington, D.C. 20005; and
• Elliot Nguyen, Lead Associate, Calderwood & Harkness LLP, 1401 K Street NW, Suite 1200, Washington, D.C. 20005.
All substantive communications, work product deliveries, and requests shall be directed through the designated points of contact unless the Parties agree otherwise in writing.
SECTION 7: TERM AND TERMINATION
7.1 Term. This Agreement shall be effective as of the Effective Date, July 2, 2025, and shall remain in effect through the conclusion of the preliminary injunction evidentiary hearing (currently scheduled to commence on September 8, 2025) and the rendering of a decision thereon by the Court, unless earlier terminated pursuant to the provisions of this Section 7 or extended by mutual written agreement of the Parties. For the avoidance of doubt, the Agreement shall remain in effect during any period following the PI Hearing during which the Court's decision remains pending, and Brindoval shall remain available for any supplemental analysis or follow-up inquiries from the Court during such period, subject to the Flat Fee having been paid in full.
7.2 Termination for Convenience
Either Party may terminate this Agreement upon fifteen (15) days' prior written notice to the other Party, delivered in accordance with the notice provisions of Section 10.5.
In the event of termination by Retaining Counsel under this Section 7.2, Brindoval shall be entitled to the pro rata portion of the Flat Fee earned through the date of termination, based on the proportion of work completed as reasonably determined by the Parties, plus reimbursement of all expenses incurred through the date of termination. Any Flat Fee installment previously paid in excess of the pro rata amount earned shall be refunded to Retaining Counsel within thirty (30) days of the effective date of termination.
In the event of termination by Brindoval under this Section 7.2, Brindoval shall use commercially reasonable efforts to transition all work in progress, including all data, analyses, models, draft reports, and related materials, to a successor expert or consultant designated by Retaining Counsel. Such transition shall occur in a timely and orderly fashion, and Brindoval shall cooperate fully with any successor. Brindoval shall refund the pro rata unearned portion of any prepaid Flat Fee installment within thirty (30) days of the effective date of termination.
7.3 Termination for Cause
Either Party may terminate this Agreement immediately upon written notice if the other Party materially breaches any provision of this Agreement and fails to cure such breach within ten (10) business days after receipt of written notice specifying the nature of the breach in reasonable detail. For purposes of this Section, a material breach shall include, without limitation, a breach of the confidentiality obligations set forth in Section 3, a failure to maintain the independence required by Section 4, or a failure to make payments when due under Section 2.
7.4 Survival. The following provisions shall survive termination or expiration of this Agreement and shall continue in full force and effect: Section 3 (Confidentiality and Privilege), Section 4.3 (No Conflicts), Section 5 (Document Retention and Management), and Section 8 (Limitation of Liability and Indemnification). The survival of these provisions is necessary to protect the legitimate interests of the Parties and shall not be limited in duration except as expressly stated in the applicable Section.
SECTION 8: LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1 Limitation of Liability
Brindoval's aggregate liability to Retaining Counsel, Cascade, and any other party arising under or in connection with this Agreement, whether in contract, tort, strict liability, or otherwise, shall not exceed the total amount of the Flat Fee actually paid to Brindoval under this Agreement. This limitation of liability shall apply regardless of the form of action and regardless of the number of claims asserted.
In no event shall either Party be liable to the other Party for any consequential, incidental, indirect, special, punitive, or exemplary damages arising under or in connection with this Agreement, including but not limited to lost profits, loss of business opportunity, or loss of goodwill, regardless of whether such damages were foreseeable and regardless of whether such Party has been advised of the possibility of such damages. Nothing in this Section shall limit Brindoval's liability for breaches of its confidentiality obligations under Section 3 or for gross negligence or willful misconduct.
8.2 Indemnification by Retaining Counsel / Client
Cascade (through Retaining Counsel) shall indemnify, defend, and hold harmless Brindoval and its members, managers, officers, directors, employees, agents, and representatives (collectively, the "Brindoval Indemnitees") from and against any and all third-party claims, demands, actions, suits, proceedings, judgments, liabilities, losses, damages, costs, and expenses (including reasonable attorneys' fees and costs of defense) arising out of or relating to Brindoval's performance of the Services in accordance with this Agreement, except to the extent that such claims, liabilities, or expenses are caused by Brindoval's gross negligence, willful misconduct, or material breach of this Agreement. Retaining Counsel shall provide prompt written notice to Brindoval of any claim for which indemnification is sought and shall cooperate with Brindoval in the defense of any such claim.
SECTION 9: REPRESENTATIONS AND WARRANTIES
9.1 Representations and Warranties by Brindoval
Brindoval hereby represents and warrants to Retaining Counsel and Cascade as follows:
(a) Brindoval Analytics LLC is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is duly qualified to do business in the District of Columbia and in each other jurisdiction in which the performance of the Services requires such qualification;
(b) Brindoval has the full legal capacity, power, and authority to enter into this Agreement and to perform the Services contemplated herein, and the execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of Brindoval;
(c) This Agreement constitutes the legal, valid, and binding obligation of Brindoval, enforceable against Brindoval in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting the enforcement of creditors' rights generally;
(d) Dr. Priya Ramanathan and Dr. Lucas Engström are qualified by education, training, specialized knowledge, and professional experience to perform the Services and render the expert opinions contemplated by this Agreement; and
(e) The performance of the Services by Brindoval will not violate or conflict with any agreement, obligation, or commitment to which Brindoval or its personnel are bound.
9.2 Representations and Warranties by Retaining Counsel
Calderwood & Harkness LLP hereby represents and warrants to Brindoval as follows:
(a) Calderwood & Harkness LLP is a limited liability partnership duly organized, validly existing, and in good standing under the laws of the State of New York, and is duly authorized to practice law in the District of Columbia and in the Western District of Washington;
(b) Calderwood & Harkness LLP is duly authorized by its client, Cascade Retail Holdings Inc., to enter into this Agreement and to retain Brindoval on behalf of Cascade for the performance of the Services described herein. Cascade's acknowledgment and agreement to the terms hereof is evidenced by the signature of its General Counsel on the signature page of this Agreement;
(c) Calderwood & Harkness LLP will timely provide Brindoval with access to all relevant documents, data, and information in its possession or control that are necessary for Brindoval to perform the Services, including documents produced in discovery, deposition transcripts, pleadings, and court orders; and
(d) Calderwood & Harkness LLP will promptly inform Brindoval of any developments in the Proceedings that may affect the scope, timing, or nature of the Services.
SECTION 10: MISCELLANEOUS PROVISIONS
10.1 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the District of Columbia, without regard to its conflict-of-laws principles. Any dispute arising out of or relating to this Agreement that cannot be resolved by the Parties through good-faith negotiation shall be submitted to the exclusive jurisdiction of the courts of the District of Columbia, and each Party hereby consents to the personal jurisdiction and venue of such courts.
10.2 Entire Agreement
This Agreement, including all exhibits and schedules attached hereto and incorporated herein by reference, constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous discussions, negotiations, understandings, representations, and agreements, whether written or oral, relating to the subject matter hereof.
10.3 Amendments. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless made in writing and signed by duly authorized representatives of both Parties. No waiver of any provision or right under this Agreement shall constitute a waiver of any other provision or right, nor shall any single waiver constitute a continuing waiver.
10.4 Assignment. Neither Party may assign, transfer, delegate, or otherwise dispose of this Agreement or any rights, obligations, or interests arising hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Any attempted assignment in violation of this Section shall be null and void. Subject to the foregoing restriction, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
10.5 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered personally, (b) sent by confirmed electronic mail, (c) sent by nationally recognized overnight courier service, or (d) sent by certified or registered mail, return receipt requested, postage prepaid, to the following addresses (or to such other address as either Party may designate by written notice to the other Party):
If to Retaining Counsel:
Howard Bellamy, Partner Calderwood & Harkness LLP 1401 K Street NW, Suite 1200 Washington, D.C. 20005
If to Brindoval:
Dr. Priya Ramanathan, Managing Director Brindoval Analytics LLC 1700 Pennsylvania Avenue NW, Suite 550 Washington, D.C. 20006
10.6 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by exchange of electronic copies bearing electronic or digital signatures shall be deemed effective execution and delivery for all purposes.
10.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall continue in full force and effect. In the event that any provision is so held to be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to replace such provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the original intent and economic effect of the invalid provision.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Expert Retention Agreement as of the date first written above.
CALDERWOOD & HARKNESS LLP
By: ________
Name: Howard Bellamy
Title: Partner, Antitrust & Competition Practice Group
Date: July 2, 2025
BRINDOVAL ANALYTICS LLC
By: ________
Name: Dr. Priya Ramanathan