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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

CASCADE RETAIL HOLDINGS INC. and PINNACLE MARKET GROUP INC.,

Defendants.

Case No. 2:25-cv-01087-RAJ

Hon. Richard A. Johannsen

DEFENDANTS' MEMORANDUM IN OPPOSITION TO NON-PARTY INDEPENDENT ONLINE SELLERS ALLIANCE'S MOTION TO INTERVENE

Howard Bellamy (WSBA No. 38241) Elaine Forsythe (WSBA No. 41879) Elliot Nguyen (WSBA No. 52614) Aaron Liu (WSBA No. 56302) CALDERWOOD & HARKNESS LLP 1401 K Street NW, Suite 1200 Washington, D.C. 20005 Telephone: (202) 555-7400 Facsimile: (202) 555-7401

901 Fifth Avenue, Suite 4100 Seattle, WA 98164 Telephone: (206) 555-8800 Facsimile: (206) 555-8801

Attorneys for Defendant Cascade Retail Holdings Inc.

Joined by:

Diana Whitfield (TX Bar No. 21084300; pro hac vice) Kenneth Oshiro (TX Bar No. 24109855; pro hac vice) WHITFIELD, GREER & TANAKA LLP 100 Congress Avenue, Suite 2200 Austin, TX 78701 Telephone: (512) 555-3200 Facsimile: (512) 555-3201

Attorneys for Defendant Pinnacle Market Group Inc.

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PRELIMINARY STATEMENT

The Independent Online Sellers Alliance ("IOSA"), a 501(c)(6) trade association headquartered at 1025 Vermont Avenue NW, Suite 600, Washington, D.C. 20005, represented by Galloway & Peck LLP (lead partner Martina Galloway, 60 East 42nd Street, Suite 2600, New York, NY 10165), seeks to intervene in this expedited Section 13(b) preliminary injunction proceeding brought by the Federal Trade Commission ("FTC" or "Commission"). IOSA asks this Court to grant it the full rights of a party — including the right to file independent briefs, propound and respond to discovery, and participate in the evidentiary hearing set for September 8, 2025. The motion should be denied in its entirety.

This case arises from the FTC's challenge to the proposed $4.7 billion all-cash acquisition by Cascade Retail Holdings Inc. ("Cascade") of Pinnacle Market Group Inc. ("Pinnacle"). The FTC filed its complaint on June 23, 2025, seeking a preliminary injunction under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), alleging that the merger would substantially lessen competition in "online marketplace platform services for third-party sellers in the United States" in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. The Commission authorized the complaint by a 3–2 vote. The matter is separately proceeding before the Commission under Administrative Docket No. 9438. The evidentiary hearing before this Court on the preliminary injunction motion is set for September 8, 2025 — barely two months away — and the parties have been operating under a rigorously compressed schedule since the July 14, 2025 initial case management conference.

IOSA's motion to intervene should be denied for three independent and mutually reinforcing reasons.

First, IOSA cannot satisfy the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a)(2). Its motion is untimely, filed weeks after the complaint was filed, after the case management conference, and during the compressed discovery period — when IOSA has known about this transaction since it was publicly announced on March 17, 2025, and has known about the FTC's investigation since at least the public disclosure of the Second Request on May 7, 2025. IOSA's claimed interest is speculative and generalized — a trade association's advocacy concern about future pricing practices does not constitute the type of direct, substantial, and legally protectable interest the Ninth Circuit demands. And IOSA's interests, to the extent they are cognizable at all, are already adequately represented by the FTC, whose complaint explicitly alleges harm to third-party sellers and whose litigation team is presenting precisely the seller-side theory of harm that IOSA purports to champion.

Second, permissive intervention under Rule 24(b) should be denied because it would cause undue delay and prejudice to Defendants. Granting IOSA party status would introduce additional discovery demands, deposition requests, briefing obligations, and hearing time into an already compressed schedule. The September 8, 2025 hearing date is critical. Defendants face a March 14, 2026 outside date under the Merger Agreement (with a limited extension to June 14, 2026 available only if the sole unsatisfied condition is regulatory clearance), a reverse termination fee of $282 million, committed financing that includes a $2.8 billion term loan facility with time-limited availability, and ongoing uncertainty that harms both companies' operations, employees, and shareholders. Any delay jeopardizes the viability of the transaction and inflicts irreparable harm that no subsequent remedy can cure.

Third, IOSA has failed to articulate any argument, legal theory, or category of evidence that is not already being presented — or that will not be presented — by the FTC. The Commission has the full investigatory record, access to documents and testimony from hundreds of third-party sellers obtained through its pre-complaint investigation and Second Request process, a team of experienced antitrust litigators, and a retained economic expert. IOSA's participation would be cumulative and duplicative.

If the Court is nonetheless inclined to allow IOSA some form of participation, Defendants respectfully submit that the appropriate vehicle is amicus curiae status — which would allow IOSA to submit a brief within the existing schedule without the attendant discovery rights, motion practice, and hearing participation that would accompany full intervention. Defendants would not oppose such a narrowly tailored submission, provided it adheres to the Court's schedule and does not disrupt the September 8, 2025 hearing.

STATEMENT OF FACTS

A. The Transaction

On March 14, 2025, Cascade and Pinnacle executed a definitive Agreement and Plan of Merger (the "Merger Agreement") providing for Cascade's acquisition of 100% of Pinnacle's outstanding common stock at a price of $26.85 per share in cash. Based on 175,047,319 shares of Pinnacle common stock outstanding as of the record date, the aggregate transaction consideration is approximately $4.7 billion, representing a 20.4% premium over Pinnacle's unaffected closing price of $22.30 per share on March 7, 2025 — the last full trading day prior to market rumors regarding a potential transaction.

The transaction is structured as a reverse triangular merger under the Delaware General Corporation Law. CRH Merger Sub Inc., a wholly owned subsidiary of Cascade formed solely for the purpose of effectuating the merger, will merge with and into Pinnacle, with Pinnacle surviving as a wholly owned subsidiary of Cascade. The Merger Agreement was publicly announced via a joint Form 8-K filing on March 17, 2025. Cascade's definitive proxy statement on Schedule 14A was filed with the Securities and Exchange Commission on April 28, 2025.

Cascade Retail Holdings Inc. Cascade is a publicly traded (Nasdaq: CSRT) omnichannel retailer headquartered in Seattle, Washington. Founded in 1987, Cascade operates approximately 340 brick-and-mortar retail locations across 38 states, a direct-to-consumer e-commerce platform (CascadeDirect.com), and a third-party seller marketplace known as CascadeMarket. CascadeMarket was launched on June 1, 2019, as a complement to Cascade's existing retail and e-commerce operations. In fiscal year 2024, Cascade reported total revenue of $28.6 billion, with approximately $9.3 billion attributable to its e-commerce and marketplace segments combined. CascadeMarket processed approximately $3.1 billion in gross merchandise volume ("GMV") from approximately 42,000 active third-party sellers during FY2024, generating $527 million in marketplace services revenue, reflecting an approximate 17% take rate. CascadeMarket is the fourth-largest online marketplace platform in the United States by GMV.

Pinnacle Market Group Inc. Pinnacle is a publicly traded (Nasdaq: PMGI) online marketplace platform headquartered in Austin, Texas. Pinnacle was co-founded in 2014 by Rajiv Chandravar and Lena Kowalski with the mission of providing independent sellers a technology-forward marketplace to reach consumers. Pinnacle hosts approximately 185,000 active third-party sellers and processed approximately $11.4 billion in GMV in FY2024, generating $1.82 billion in net revenue at an approximate 16% take rate. Pinnacle is the second-largest online marketplace platform in the United States by GMV, behind Vertex Commerce Inc.

The Merger Agreement contains customary termination provisions. Cascade is obligated to pay a reverse termination fee of $282 million if the transaction is not consummated by the outside date due to a failure to obtain regulatory clearance. Pinnacle is obligated to pay a company termination fee of $164.5 million in certain other termination scenarios. The outside date is March 14, 2026, twelve months from the date of execution of the Merger Agreement, with a single extension to June 14, 2026 available only if, as of the initial outside date, the sole remaining unsatisfied closing condition is the receipt of antitrust clearance. Cascade has arranged committed financing for the transaction consisting of a $2.8 billion term loan facility from Whitmore National Bank, N.A. (commitment letter dated March 12, 2025) and approximately $1.9 billion in cash on hand. The financing commitments are subject to customary conditions and limited availability periods that are keyed to the Merger Agreement's outside date.

B. The FTC Challenge

On April 2, 2025, Cascade and Pinnacle filed their respective notification forms under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a (HSR Filing No. 20250402-0347). The initial 30-day waiting period was set to expire on May 2, 2025. On May 7, 2025, the FTC issued a Second Request for Additional Information and Documentary Material (File No. 251-0089), extending the waiting period. Both Cascade and Pinnacle certified substantial compliance with the Second Request on June 10, 2025.

On June 20, 2025, the Commission, by a 3–2 vote, issued an administrative complaint challenging the proposed transaction under Section 7 of the Clayton Act, 15 U.S.C. § 18 (Administrative Docket No. 9438). Three days later, on June 23, 2025, the FTC filed its complaint in this Court seeking a preliminary injunction under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), to enjoin the merger pending the conclusion of the administrative proceeding.

The FTC's complaint alleges that the relevant product market is "online marketplace platform services for third-party sellers in the United States" and that the relevant geographic market is the United States. According to the FTC's complaint, market shares by GMV are as follows: Vertex Commerce Inc. holds approximately 35.7%, Pinnacle holds approximately 30.1%, Nomad Shops LLC holds approximately 14.6%, Cascade (CascadeMarket) holds approximately 8.2%, and all other marketplace platforms collectively hold approximately 11.4%. The FTC calculates that the proposed merger would combine the second- and fourth-largest competitors, resulting in a combined market share of approximately 38.3%. The FTC further alleges that the pre-merger Herfindahl-Hirschman Index ("HHI") for the relevant market is 2,361, and that the post-merger HHI would be 2,856, representing an increase (delta) of 495 — well above the thresholds that the 2023 Merger Guidelines identify as presumptively raising significant competitive concerns in an already highly concentrated market.

The FTC's complaint specifically alleges that the proposed merger would harm competition by, among other things: (a) giving the combined entity undue leverage over third-party sellers through increased take rates; (b) reducing the quality and scope of seller services; (c) diminishing innovation in marketplace platform technology; and (d) eliminating direct head-to-head competition between CascadeMarket and Pinnacle for the patronage of third-party sellers. The complaint devotes multiple paragraphs to the seller-side effects of the merger, describing the importance of marketplace platform competition to third-party sellers and consumers alike.

C. The Litigation Schedule

At the initial case management conference held on July 14, 2025, before the Honorable Richard A. Johannsen, United States District Judge, the Court established an expedited schedule for the preliminary injunction proceeding. The schedule, memorialized in the Court's Case Management and Scheduling Order (Dkt. 28), provides:

• August 4, 2025: Close of fact discovery.

• August 11, 2025: Defendants' opposition to the FTC's motion for preliminary injunction due.

• August 18, 2025: Expert reports due (all parties).

• August 25, 2025: FTC's reply memorandum due.

• August 29, 2025: Rebuttal expert reports due.

• September 8–12, 2025: Five-day evidentiary hearing on the preliminary injunction motion.

This compressed timeline reflects the time-sensitive nature of merger litigation and the need for prompt resolution of the FTC's Section 13(b) motion. As the Court recognized at the case management conference, delay in resolving the preliminary injunction motion threatens the viability of the underlying transaction. Cascade faces a reverse termination fee of $282 million and a hard outside date of March 14, 2026, with the limited extension to June 14, 2026 available only if the sole outstanding condition is antitrust clearance. Moreover, during the pendency of the litigation, both companies face substantial uncertainty that impedes their ability to plan, operate, and retain employees. The Court's expedited schedule was designed to balance the need for thorough adjudication with the practical realities of merger timing.

As of the date of this filing, the parties are deep in the discovery process. Cascade and Pinnacle have collectively produced over 2.3 million pages of documents, and the FTC has produced its investigatory file materials pursuant to the Court's scheduling order. The parties have taken or scheduled depositions of more than two dozen fact witnesses, including current and former executives of both Cascade and Pinnacle, as well as third-party witnesses from competing marketplace platforms and industry participants. Expert work is well underway, with reports due August 18, 2025.

D. IOSA and Its Motion

IOSA is a 501(c)(6) trade association that purports to represent the interests of independent online sellers who sell through various marketplace platforms, including Pinnacle's marketplace and CascadeMarket. According to its motion papers, IOSA was founded in 2018 and has approximately 3,200 members, predominantly small and medium-sized businesses that sell consumer goods through online marketplace platforms. IOSA claims that its members collectively transact approximately $4.8 billion in annual GMV across multiple marketplace platforms.

IOSA, through its counsel at Galloway & Peck LLP (lead partner Martina Galloway), filed its motion to intervene on July 21, 2025 — four weeks after the FTC filed its complaint in this Court, one week after the initial case management conference at which the expedited schedule was set, and in the midst of the compressed discovery period. IOSA's motion was filed more than four months after the merger was publicly announced on March 17, 2025, and more than two months after the Second Request publicly confirmed the FTC's investigation.

IOSA seeks to intervene either as of right under Federal Rule of Civil Procedure 24(a)(2) or, in the alternative, for permissive intervention under Rule 24(b). In its motion papers, IOSA asserts that its members would be harmed by the proposed merger through increased take rates, reduced seller services, and diminished innovation in marketplace platform technology. IOSA seeks leave to file its own briefs in opposition to the merger, to conduct discovery (including depositions of Cascade and Pinnacle executives), and to participate in the September 8, 2025 evidentiary hearing through the presentation of testimony and cross-examination of witnesses.

IOSA has not identified any specific argument, legal theory, or category of evidence that it would present that the FTC has not already alleged or will not present. IOSA's motion papers do not point to any divergence between its litigation objectives and those of the FTC. Instead, IOSA asserts in conclusory terms that its members' "on-the-ground experience" as marketplace sellers provides a "unique perspective" that the FTC "cannot fully replicate." Motion at 8. This generalized assertion falls far short of what is required to justify intervention in an expedited preliminary injunction proceeding.

ARGUMENT

I. IOSA DOES NOT SATISFY THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT UNDER RULE 24(a)(2)

A. Legal Standard for Intervention as of Right. Federal Rule of Civil Procedure 24(a)(2) provides that a court must permit anyone to intervene who, on timely motion, "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."

The Ninth Circuit has distilled this provision into a four-part test. A proposed intervenor must demonstrate: (1) the motion is timely; (2) the applicant claims a "significantly protectable" interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest is not adequately represented by existing parties. Wilderness Soc'y v. U.S. Forest Service, 630 F.3d 1173, 1177 (9th Cir. 2011); Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

Each of these four requirements is an independent prerequisite to intervention as of right. The failure to satisfy any single element is dispositive. Callahan v. Brookdale Senior Living Communities, Inc., 863 F.3d 1110, 1114 (9th Cir. 2017). The applicant bears the burden of establishing all four elements. Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011); Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001).

While the Ninth Circuit has at times described the standard as being construed broadly in favor of intervention, this liberal approach "is not a license to intervene without meeting the requirements of Rule 24(a)(2)." Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996). The Court retains the obligation to assess each element independently and to deny intervention where the applicant has failed to carry its burden. See 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1908 (3d ed. 2024).

As set forth below, IOSA fails to satisfy at least three of the four requirements — timeliness, sufficiency of interest, and adequacy of representation — and its motion should be denied on any of these independent grounds.

B. IOSA's Motion Is Untimely. The threshold inquiry under Rule 24(a)(2) is timeliness. Wilderness Soc'y, 630 F.3d at 1177. Timeliness is assessed in light of all the circumstances, and the Ninth Circuit considers three primary factors: (1) the stage of the proceeding at which the applicant seeks to intervene; (2) the prejudice to the existing parties from the delay; and (3) the reasons, if any, for the delay. Smith v. Los Angeles Unified School District, 830 F.3d 843, 854 (9th Cir. 2016); League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997).

All three factors weigh heavily against IOSA.

Stage of the Proceeding. IOSA filed its motion to intervene on July 21, 2025 — nearly five weeks after the FTC filed its district court complaint on June 23, 2025, and one full week after the July 14, 2025 case management conference at which the Court established the expedited schedule for the preliminary injunction proceeding. By the time IOSA filed its motion, the parties had already conferred and agreed upon a detailed discovery plan, had commenced document productions, and had begun scheduling depositions. Fact discovery is set to close on August 4, 2025 — just two weeks after IOSA's filing. The Defendants' opposition brief is due August 11, 2025. Expert reports are due August 18, 2025. The evidentiary hearing is set for September 8, 2025.

IOSA's motion was thus filed at an advanced stage of this expedited proceeding. The parties are deep in the discovery process, have made substantial investments of time and resources in preparing for the hearing on the compressed schedule set by the Court, and are rapidly approaching key filing deadlines. At this juncture, granting intervention would require reopening the discovery schedule, extending briefing deadlines, and potentially delaying the September 8 hearing — consequences that are directly at odds with the expedited nature of this proceeding.

Prejudice to Existing Parties. The prejudice to Defendants from late intervention would be severe and concrete. This is not an ordinary civil case with a generous discovery schedule and a trial date months or years in the future. This is a Section 13(b) preliminary injunction proceeding governed by an expedited schedule specifically designed to provide prompt resolution of the FTC's motion. Every day of delay threatens the viability of the transaction.

Cascade faces a hard outside date of March 14, 2026, under the Merger Agreement, with a limited extension to June 14, 2026, available only if the sole outstanding condition is antitrust clearance. Cascade has committed $2.8 billion in term loan financing from Whitmore National Bank, N.A., with availability periods keyed to the outside date, and has approximately $1.9 billion in cash on hand allocated to the transaction. A delay in the hearing could compress the timeline for post-hearing proceedings, delay the Court's decision, and ultimately jeopardize the parties' ability to consummate the transaction within the Merger Agreement's time constraints. If the transaction cannot be completed, Cascade faces a reverse termination fee of $282 million, and Pinnacle's shareholders will be deprived of the $26.85 per share premium that the merger offers.

If IOSA is granted full party status, it will inevitably seek additional time for discovery — including depositions of Cascade and Pinnacle executives, document requests, and interrogatories — on top of the extensive discovery already underway. IOSA will also seek additional briefing time and hearing time. Even a modest expansion of the schedule would cascade through the remaining deadlines and threaten the September 8 hearing date. The Ninth Circuit has held that prejudice to existing parties from delay in filing an intervention motion is entitled to "great weight" in the timeliness analysis. Smith, 830 F.3d at 854.

Reasons for Delay. IOSA has offered no adequate explanation for its delay in seeking intervention. The proposed merger was publicly announced on March 17, 2025 — more than four months before IOSA filed its motion. The FTC's investigation was publicly known following the issuance of the Second Request on May 7, 2025 — more than two and a half months before IOSA's filing. The FTC's complaint was filed on June 23, 2025, and was the subject of extensive public reporting. IOSA, as a trade association that purports to represent the very constituency the FTC alleges will be harmed by the merger, was on clear notice of the transaction, the FTC's investigation, and the litigation from the earliest stages.

IOSA's motion papers offer only the vague explanation that it needed time to "evaluate the competitive implications of the transaction" and to "consult with its membership." Motion at 5. This explanation is insufficient. A trade association with 3,200 members that exists for the purpose of advocating on behalf of online marketplace sellers should not require four months to determine whether a $4.7 billion merger between two of the largest marketplace platforms in the country implicates its interests. IOSA's delay is attributable to its own lack of diligence, not to any uncertainty about whether this litigation would affect the interests it claims.

The Court should also consider that IOSA's delay, even if partially excusable, has practical consequences that cannot be undone. Even if the Court were to grant intervention today, IOSA could not meaningfully participate in discovery before the August 4, 2025, close of fact discovery without disrupting the existing schedule. Nor could IOSA retain and prepare experts in time for the August 18, 2025, expert report deadline. The only way to accommodate IOSA's participation would be to delay the hearing — precisely the result that the expedited schedule was designed to prevent. See League of United Latin Am. Citizens, 131 F.3d at 1302 (finding intervention untimely where it would disrupt the existing litigation schedule); Nken v. Holder, 556 U.S. 418, 434 (2009) (emphasizing the importance of avoiding unnecessary delay in expedited proceedings).

For all these reasons, IOSA's motion is untimely. This failure alone is dispositive and warrants denial of the motion without reaching the remaining elements of the Rule 24(a)(2) analysis.

C. IOSA Lacks a Legally Cognizable Interest Sufficient for Intervention as of Right. Even if IOSA's motion were timely, it would fail because IOSA lacks a "significantly protectable" interest relating to the property or transaction at issue. The Ninth Circuit requires that a proposed intervenor demonstrate "an interest relating to the property or transaction which is the subject of the action" that is "direct, substantial, and legally protectable." Donnelly, 159 F.3d at 409–10; County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980). A generalized interest in the outcome of litigation, or an economic interest shared with a broad class of market participants, does not satisfy this requirement. Perry, 587 F.3d at 951.

IOSA's claimed interest is that its members — independent online sellers who sell through various marketplace platforms — might face higher take rates, reduced seller services, or diminished innovation if the merger is consummated. This interest is speculative and contingent in at least three respects.

First, the harm IOSA posits depends on a chain of uncertain future events: the merger would need to be consummated, the combined entity would need to choose to raise take rates or reduce seller services (decisions that are not inevitable and depend on competitive dynamics), and IOSA's members would need to lack alternatives (when even the FTC's own market share data shows multiple significant competitors, including Vertex Commerce at 35.7% and Nomad Shops at 14.6%). IOSA does not — and cannot — point to any concrete, imminent harm that would result from the Court's disposition of the FTC's preliminary injunction motion.

Second, IOSA's interest is generalized and diffuse. It is shared by tens of thousands of marketplace sellers across the United States, not just IOSA's 3,200 members. IOSA is a trade association asserting an advocacy interest on behalf of its members, not a party with a direct, individualized stake in the transaction. IOSA has no contractual relationship with either Cascade or Pinnacle. IOSA is not a party to the Merger Agreement. No IOSA member's contract with Cascade or Pinnacle will be modified or extinguished by the Court's ruling on the FTC's motion. IOSA's interest is, at bottom, an interest in the competitive conditions of the marketplace — precisely the kind of generalized public interest that the FTC is charged with protecting.

Third, IOSA's interest is not a property or contractual interest that would be impaired by the disposition of this action. This is not a case where the proposed intervenor holds a lien, a lease, a contractual right, or any other legally protectable interest that would be directly affected by the judgment. IOSA's claimed interest is indistinguishable from the interest of any market participant who might prefer that market conditions remain unchanged. This type of general economic interest does not rise to the level of a "significantly protectable" interest sufficient to support intervention as of right. See Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (requiring a "direct" and "substantial" interest, not a merely derivative or speculative one).

Courts have consistently distinguished between the type of concrete, particularized interests that support intervention as of right — such as interests in specific property, contractual rights, or legally enforceable claims — and the type of generalized economic or policy interests that IOSA asserts here. IOSA falls squarely on the wrong side of this line. Its motion should be denied for failure to establish a cognizable interest.

D. IOSA's Interests Are Adequately Represented by the FTC. Even assuming IOSA could demonstrate a cognizable interest and a timely filing — and it can demonstrate neither — its motion would still fail because its interests are adequately represented by the FTC. The adequacy of representation requirement is, in the circumstances of this case, the most critical factor and is independently dispositive of IOSA's motion.

The standard for assessing adequacy of representation is well established. Where an existing party shares the same ultimate objective as the proposed intervenor, there is a presumption of adequate representation. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003); Citizens for Balanced Use, 647 F.3d at 898. To overcome this presumption, the proposed intervenor must make a "compelling showing" that the existing party's representation is inadequate. Id. This burden is heightened where the existing party is a governmental entity charged by law with representing the interests that the proposed intervenor seeks to advance. United States v. City of Los Angeles, 288 F.3d 391, 402 (9th Cir. 2002) (where the government is acting on behalf of a constituency, "the party seeking to intervene must demonstrate that the government's representation is inadequate"); Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972).

The presumption of adequate representation applies with full force here. The FTC is the federal agency to which Congress has entrusted the protection of competition. The FTC Act, 15 U.S.C. §§ 41–58, empowers the Commission to investigate and challenge mergers and acquisitions that may substantially lessen competition. The FTC's complaint in this very action is predicated on the theory that the proposed merger between Cascade and Pinnacle would harm competition in online marketplace platform services for third-party sellers — the exact constituency IOSA claims to represent.

The alignment between IOSA's stated interests and the FTC's litigation position is not merely general — it is precise and specific. The FTC's complaint devotes extensive attention to seller-side effects. Paragraphs 47 through 63 of the complaint describe in detail the ways in which the merger would allegedly harm third-party sellers, including through increased take rates, reduced seller services, diminished innovation in marketplace platform technology, and the elimination of head-to-head competition between CascadeMarket and Pinnacle for the patronage of third-party sellers. These are the identical harms that IOSA identifies in its motion papers.

The FTC's litigation team is fully equipped to present this case. The Bureau of Competition's Mergers IV Division, led by Assistant Director Claire Dunmore, with Senior Trial Counsel Samuel Ortega and Trial Attorney Rebecca Yun, is handling the litigation. The FTC has retained Dr. Wallace Keenan of Thornfield Research Group as its expert economist to testify regarding market definition, competitive effects, and the likely impact of the merger on third-party sellers. Dr. Nathaniel Hargrove of the FTC's Bureau of Economics has separately analyzed market definition and concentration. The FTC's litigation team has full access to the investigatory record compiled during the pre-complaint investigation and Second Request process (File No. 251-0089), which includes documents and data from both Cascade and Pinnacle, as well as extensive information obtained from third-party market participants — including declarations, written submissions, and interview transcripts from third-party sellers, many of whom are likely IOSA members.

The FTC's access to this investigatory record is particularly significant. During the Second Request process, the FTC issued compulsory process — including civil investigative demands and subpoenas — to dozens of third-party marketplace sellers, competing platforms, and industry participants. The FTC obtained detailed information about seller experiences, take rates, switching behavior, and competitive alternatives. This information is directly relevant to IOSA's stated concerns and will form the evidentiary foundation of the FTC's case at the September 8 hearing. IOSA cannot replicate this investigatory record, nor does it need to — the FTC already has it and will present it.

Against this backdrop, IOSA has failed to make the "compelling showing" required to overcome the presumption of adequate representation. IOSA's motion papers do not identify any specific argument, legal theory, or category of evidence that the FTC has failed or will fail to present. IOSA does not point to any disagreement with the FTC's proposed market definition, theory of competitive harm, or litigation strategy. IOSA does not allege that the FTC has ignored seller-side concerns or given them insufficient weight. IOSA does not identify any witness it would call whom the FTC is not already planning to call, or any document it would introduce that the FTC does not already possess.

Instead, IOSA offers only the vague assertion that its members have "on-the-ground experience" that provides a "unique perspective" the FTC "cannot fully replicate." Motion at 8. This is precisely the kind of conclusory assertion that courts have consistently held insufficient to demonstrate inadequacy of representation. The mere possibility that IOSA might emphasize certain evidence differently, present additional anecdotal testimony from sellers, or devote more hearing time to particular seller concerns does not establish that the FTC's representation is inadequate. See Arakaki, 324 F.3d at 1086 (holding that a proposed intervenor's disagreement with the existing party's litigation strategy does not demonstrate inadequacy); City of Los Angeles, 288 F.3d at 402 (same); FTC v. Tarrant Holdings, 549 F.2d 289, 292 (4th Cir. 1977) (denying intervention in FTC merger proceeding where proposed intervenor's interests were aligned with the FTC's).

Courts in Section 13(b) merger challenges have routinely found that the FTC adequately represents the interests of market participants who might be affected by a challenged merger. See, e.g., FTC v. Staples, Inc., 190 F. Supp. 3d 100, 105 n.3 (D.D.C. 2016); FTC v. Tronox Holdings PLC, 332 F. Supp. 3d 187, 195 (D.D.C. 2018); FTC v. Kestrel Partners LLC, 681 F. Supp. 3d 1069, 1078 (N.D. Cal. 2023); FTC v. Ostrander & Co., No. 23-cv-00076, Dkt. 42 (S.D. Cal. Mar. 22, 2023); FTC v. Adriatic Enterprises, Inc., No. 22-cv-05765, Dkt. 87 (N.D. Cal. Jan. 18, 2023). In each of these cases, courts recognized that the FTC is charged with protecting the public interest — including the interests of market participants such as third-party sellers — and that proposed intervenors whose interests align with the FTC's have failed to demonstrate inadequacy of representation.

The reasoning of these decisions applies with particular force here. The FTC's entire theory of the case is built around the harm the merger would allegedly cause to third-party sellers. The FTC is not merely tangentially concerned with seller interests — seller-side harm is the central focus of the FTC's complaint. If anything, the FTC's incentives to vigorously present evidence of seller harm are stronger than IOSA's, because the FTC's ability to obtain a preliminary injunction depends on convincing this Court that the merger would harm competition in the market for marketplace platform services for third-party sellers. The FTC and IOSA share the identical ultimate objective: preventing the merger from being consummated.

IOSA's interests are adequately represented by the FTC. This independent failure warrants denial of the motion.

E. Disposition of This Action Will Not Impair IOSA's Ability to Protect Its Interests. The third substantive element of the Rule 24(a)(2) analysis — whether the disposition of the action may, as a practical matter, impair or impede the movant's ability to protect its interest — also weighs against intervention. See Southwest Center for Biological Diversity, 268 F.3d at 822; Prete, 438 F.3d at 954.

This is a preliminary injunction proceeding under Section 13(b) of the FTC Act, not a final adjudication on the merits. The only issue before the Court is whether the FTC has shown a likelihood that the proposed transaction, if consummated, would violate Section 7 of the Clayton Act, and whether equitable considerations favor issuing a preliminary injunction to maintain the status quo pending the FTC's administrative proceeding. See FTC v. H.J. Heinz Co., 246 F.3d 708, 714 (D.C. Cir. 2001); FTC v. Sysco Corp., 113 F. Supp. 3d 1, 23 (D.D.C. 2015). A ruling on the preliminary injunction motion will not constitute a final judgment on whether the merger violates the antitrust laws. That determination will be made, in the first instance, in the FTC's administrative proceeding (Docket No. 9438).

Regardless of how this Court rules on the preliminary injunction motion, IOSA retains multiple avenues to protect its interests. IOSA may participate in the FTC's administrative proceeding by seeking leave to intervene before the Administrative Law Judge. IOSA may submit comments to the Commission. IOSA may engage in public advocacy regarding the merger. IOSA's members may provide testimony or evidence to the FTC for use in the administrative proceeding or in this Court. No judgment entered in this preliminary injunction proceeding will bind IOSA or its members. No rights that IOSA or its members independently hold will be extinguished by the Court's ruling.

IOSA cannot demonstrate that the disposition of this action will impair or impede its ability to protect its interests, and this factor further supports denial of the motion.

II. THE COURT SHOULD DENY PERMISSIVE INTERVENTION UNDER RULE 24(b)

A. Legal Standard for Permissive Intervention. Under Rule 24(b)(1)(B), a court may, in its discretion, permit anyone to intervene who "has a claim or defense that shares with the main action a common question of law or fact." Unlike intervention as of right, permissive intervention is entirely discretionary. The court "must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3); see also 7C Wright & Miller, Federal Practice and Procedure § 1913 (3d ed. 2024).

The discretionary nature of permissive intervention means that even where a common question of law or fact exists, the court may — and should — deny intervention where granting it would cause undue delay or prejudice, would not meaningfully assist the court, or would unduly complicate the proceedings. The court's exercise of discretion is guided by practical considerations, including the nature and stage of the proceedings, the existing litigation schedule, the prejudice to the existing parties, and the extent to which the proposed intervenor's interests are already represented.

B. Intervention Would Cause Undue Delay and Prejudice to Defendants. Even if IOSA could establish a common question of law or fact with the main action — a threshold requirement that Defendants do not concede — permissive intervention should be denied because it would cause undue delay and severe prejudice to Defendants. The considerations that weigh against IOSA's timeliness under Rule 24(a)(2) apply with equal or greater force under Rule 24(b).

The September 8, 2025, hearing date is the linchpin of this proceeding. Every aspect of the parties' preparation — document productions, depositions, expert retention, expert analysis, briefing — is calibrated to that date. The parties have been operating under the compressed schedule set by the Court at the July 14, 2025, case management conference for weeks. The schedule was designed with the participation of two existing parties — the FTC and the Defendants — and was tailored to the specific discovery burdens and briefing needs of those parties.

Adding IOSA as a party would fundamentally alter the dynamics of the litigation. IOSA's motion expressly seeks leave to conduct discovery, including depositions of Cascade and Pinnacle executives. Even a limited set of additional depositions would impose substantial burdens on Defendants' witnesses and counsel, who are already operating under intense time pressure. IOSA would also presumably seek to serve document requests and interrogatories, review the extensive document productions already made by the parties, and prepare its own pre-hearing submissions. All of this would take time — time that does not exist under the current schedule.

Nor could IOSA's participation be accommodated by simply adding a few extra days to the schedule. The hearing date of September 8, 2025, was specifically chosen to ensure that the Court would have time to issue a decision well in advance of the critical contractual deadlines facing Defendants. Any delay in the hearing date would compress the post-hearing timeline, potentially delaying the Court's decision and creating a cascade of consequences that would threaten the viability of the transaction.

The financial stakes for Defendants underscore the severity of the prejudice. Cascade has committed a $2.8 billion term loan facility from Whitmore National Bank, N.A. (commitment letter dated March 12, 2025), the availability of which is tied to the Merger Agreement's outside date. Cascade has approximately $1.9 billion in cash on hand allocated to the transaction. The Merger Agreement imposes an outside date of March 14, 2026, with a single extension to June 14, 2026, available only if the sole remaining unsatisfied condition is regulatory clearance. If the transaction cannot be consummated by the outside date, the Merger Agreement terminates, and Cascade becomes liable for a reverse termination fee of $282 million. Pinnacle, in turn, faces a company termination fee of $164.5 million in certain other termination scenarios.

Beyond the contractual deadlines and financial exposure, delay imposes real-world harm on both companies. During the pendency of the litigation, Cascade and Pinnacle operate under uncertainty that affects their ability to retain key employees, plan capital expenditures, negotiate with vendors and partners, and execute their respective business strategies. This uncertainty is compounded every day the litigation remains unresolved.

The Court should also consider the practical consequences of IOSA's participation at the evidentiary hearing. If IOSA is granted full party status, it will have the right to call witnesses, cross-examine the parties' witnesses, and present argument. In a five-day evidentiary hearing, adding a third active participant would necessarily reduce the time available to the existing parties or extend the hearing beyond its scheduled duration. Either outcome is prejudicial: the former limits the parties' ability to present their cases, and the latter delays the Court's decision.

For all of these reasons, permissive intervention would cause undue delay and prejudice to Defendants and should be denied.

C. IOSA's Participation Would Not Meaningfully Assist the Court. In exercising its discretion under Rule 24(b), the Court should also consider whether IOSA's participation would provide any meaningful benefit that is not already available through the existing parties. It would not.

The FTC is the government agency charged by Congress with protecting competition. It has assembled a team of experienced antitrust litigators, retained a nationally recognized expert economist, and compiled an extensive investigatory record through the Second Request process and pre-complaint investigation. The FTC's case is specifically focused on the seller-side effects of the merger — precisely the issues IOSA claims to address. The FTC has access to documents, data, and testimony from third-party sellers, competing platforms, and industry participants. The FTC's presentation at the September 8 hearing will include testimony from third-party sellers about their experiences with Cascade's and Pinnacle's marketplace platforms, the competitive significance of the merger, and the likely effects on take rates, seller services, and innovation.

IOSA has not identified any specific argument, legal theory, or category of evidence that the FTC has not already alleged or will not present. IOSA's motion papers assert that its members' "on-the-ground experience" would be valuable, but the FTC already has access to — and will present — extensive evidence from third-party sellers. To the extent that IOSA has individual members who wish to provide testimony, those members can cooperate with the FTC's litigation team or provide declarations that the FTC can submit. Full party status is not required for IOSA's members to make their voices heard.

Courts in Section 13(b) merger challenges have consistently recognized that the FTC adequately represents the public interest, including the interests of market participants who might be affected by a challenged merger, and have denied intervention by trade associations and other non-parties on this basis. See FTC v. Staples, Inc., 190 F. Supp. 3d at 105 n.3; FTC v. Tronox Holdings PLC, 332 F. Supp. 3d at 195; FTC v. Kestrel Partners LLC, 681 F. Supp. 3d at 1078; FTC v. Sysco Corp., 113 F. Supp. 3d at 25; FTC v. Tarrant Holdings, 549 F.2d at 292; FTC v. Ostrander & Co., No. 23-cv-00076, Dkt. 42 (S.D. Cal. Mar. 22, 2023); FTC v. Adriatic Enterprises, Inc., No. 22-cv-05765, Dkt. 87 (N.D. Cal. Jan. 18, 2023). These decisions reflect a well-established principle: in Section 13(b) proceedings, the FTC stands as the representative of the public interest, and permitting intervention by every trade association or market participant that shares the FTC's litigation objectives would unnecessarily complicate and delay proceedings that are designed to be resolved expeditiously.

IOSA's participation would be cumulative and duplicative. It would add cost, complexity, and delay without providing any meaningful incremental benefit to the Court. Permissive intervention should be denied.

III. ALTERNATIVELY, IF THE COURT IS INCLINED TO PERMIT ANY PARTICIPATION, IT SHOULD BE LIMITED TO AMICUS CURIAE STATUS

If the Court determines, notwithstanding the foregoing, that IOSA's perspective on seller-side issues could be useful, Defendants respectfully submit that the appropriate vehicle for such participation is amicus curiae status — not full intervention as a party.

The distinction between amicus curiae and party status is significant. An amicus curiae is a "friend of the court" who provides information or argument that may be helpful to the court's resolution of the issues before it. An amicus does not have the rights of a party: it may not conduct discovery, depose witnesses, file motions, or participate in the evidentiary hearing as a cross-examiner or presenter of testimony. See Grutter v. Bollinger, 188 F.3d 394, 397 (6th Cir. 1999) (describing the limited role of amicus curiae). Amicus status thus allows the court to benefit from an outside perspective without the attendant disruption, delay, and prejudice that full party status would entail.

Amicus curiae participation is well suited to the circumstances of this case. IOSA's stated interest is in presenting the seller-side perspective on the merger's competitive effects — a perspective that it asserts it can provide through its members' experiences and industry knowledge. This perspective can be effectively conveyed through a written brief, without the need for independent discovery, deposition testimony, or hearing participation. If IOSA has specific factual information from its members that it believes would be helpful to the Court, it can present that information in the form of declarations attached to an amicus brief. If IOSA has legal arguments about market definition, competitive effects, or the merger's impact on third-party sellers, it can present those arguments in written form.

Defendants would not oppose a narrowly tailored amicus submission by IOSA, provided that it complies with the following conditions, which are consistent with the Court's existing schedule and the need to avoid delay and prejudice:

1. Any amicus brief should be filed on or before August 11, 2025 — the same date as Defendants' opposition to the FTC's motion — so that it does not disrupt the briefing schedule.

2. Any amicus brief should be subject to a reasonable page limit (Defendants suggest no more than 15 pages) to ensure that the brief is focused and does not impose undue burden on the parties or the Court.

3. IOSA should not be permitted to conduct any discovery, depose any witnesses, serve any document requests or interrogatories, or file any motions other than its amicus brief.

4. IOSA should not be permitted to participate in the September 8, 2025 evidentiary hearing as a party — including through the presentation of witnesses, cross-examination of the parties' witnesses, or oral argument — unless separately invited by the Court.

5. IOSA's amicus brief should be limited to issues related to the seller-side effects of the merger and should not address procedural matters, discovery disputes, or other issues outside the scope of the merits of the FTC's preliminary injunction motion.

These conditions would allow IOSA to place its perspective before the Court in a manner that is consistent with the interests of judicial efficiency, respects the existing litigation schedule, and avoids the delay and prejudice that full intervention would cause. Amicus curiae participation strikes the appropriate balance between IOSA's interest in making its views known and the parties' interest in prompt resolution of this time-sensitive merger litigation.

CONCLUSION

For the foregoing reasons, Defendants Cascade Retail Holdings Inc. and Pinnacle Market Group Inc. respectfully request that the Court enter an order denying the Independent Online Sellers Alliance's motion to intervene in its entirety.

IOSA has not met the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a)(2). Its motion is untimely, filed months after IOSA knew or should have known of its purported interest and at an advanced stage of this expedited proceeding. IOSA lacks a direct, substantial, and legally protectable interest sufficient to support intervention as of right — its generalized economic concerns about future marketplace conditions are speculative and shared by a broad class of market participants. The FTC, the federal agency charged by Congress with protecting competition, adequately represents IOSA's interests and is presenting precisely the seller-harm theory of competitive harm that IOSA seeks to advance. And the disposition of this preliminary injunction proceeding will not impair or impede IOSA's ability to protect its interests, which it may pursue through the FTC's administrative proceeding and other channels.

Permissive intervention under Rule 24(b) should likewise be denied because it would cause undue delay and prejudice to Defendants. The September 8, 2025, evidentiary hearing is immovable and essential. Adding IOSA as a party would inject additional discovery demands, deposition obligations, and briefing requirements into an already compressed schedule, threatening the hearing date and, ultimately, the viability of a $4.7 billion transaction on which the parties have committed billions of dollars in resources and on which thousands of employees and shareholders depend.

If the Court is inclined to permit any form of participation by IOSA, Defendants respectfully submit that it should be limited to amicus curiae status, subject to the conditions set forth in Section III above, so that IOSA may present its perspective without disrupting the existing schedule or prejudicing the parties.

Defendants respectfully request that the Court enter the Proposed Order attached hereto denying IOSA's motion to intervene.

Dated: July 28, 2025

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Howard Bellamy (WSBA No. 38241) Elaine Forsythe (WSBA No. 41879) Elliot Nguyen (WSBA No. 52614) Aaron Liu (WSBA No. 56302)

1401 K Street NW, Suite 1200 Washington, D.C. 20005 Telephone: (202) 555-7400 Facsimile: (202) 555-7401

901 Fifth Avenue, Suite 4100 Seattle, WA 98164 Telephone: (206) 555-8800 Facsimile: (206) 555-8801

Attorneys for Defendant Cascade Retail Holdings Inc.

JOINED BY:

WHITFIELD, GREER & TANAKA LLP

By: ________

Diana Whitfield (TX Bar No. 21084300; pro hac vice) Kenneth Oshiro (TX Bar No. 24109855; pro hac vice)

100 Congress Avenue, Suite 2200 Austin, TX 78701 Telephone: (512) 555-3200 Facsimile: (512) 555-3201

Attorneys for Defendant Pinnacle Market Group Inc.

CERTIFICATE OF SERVICE

I hereby certify that on July 28, 2025, I caused the foregoing Defendants' Memorandum in Opposition to Non-Party Independent Online Sellers Alliance's Motion to Intervene to be electronically filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all counsel of record, including the following:

Claire Dunmore Samuel Ortega Rebecca Yun Federal Trade Commission Bureau of Competition, Mergers IV Division 600 Pennsylvania Avenue NW Washington, D.C. 20580 Counsel for Plaintiff Federal Trade Commission

Martina Galloway Galloway & Peck LLP 60 East 42nd Street, Suite 2600 New York, NY 10165 Counsel for Proposed Intervenor Independent Online Sellers Alliance

Diana Whitfield Kenneth Oshiro Whitfield, Greer & Tanaka LLP 100 Congress Avenue, Suite 2200 Austin, TX 78701 Counsel for Defendant Pinnacle Market Group Inc.

By: ________

Howard Bellamy (WSBA No. 38241) CALDERWOOD & HARKNESS LLP

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

CASCADE RETAIL HOLDINGS INC. and PINNACLE MARKET GROUP INC.,

Defendants.

Case No. 2:25-cv-01087-RAJ

Hon. Richard A. Johannsen

[PROPOSED] ORDER DENYING NON-PARTY INDEPENDENT ONLINE SELLERS ALLIANCE'S MOTION TO INTERVENE

Before the Court is the Motion to Intervene filed by non-party Independent Online Sellers Alliance ("IOSA") (Dkt. __). Having considered the motion, the oppositions filed by Defendants Cascade Retail Holdings Inc. and Pinnacle Market Group Inc., and the record herein, and being fully advised in the premises, the Court hereby ORDERS as follows:

1. IOSA's motion to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) is DENIED.

2. IOSA's motion for permissive intervention under Federal Rule of Civil Procedure 24(b) is DENIED.

3. The existing Case Management and Scheduling Order (Dkt. 28) remains in full force and effect, and the evidentiary hearing on the FTC's motion for preliminary injunction shall proceed as scheduled on September 8, 2025.

IT IS SO ORDERED.

Dated: ________

________________________________________

HONORABLE RICHARD A. JOHANNSEN United States District Judge Western District of Washington

Page

TABLE OF AUTHORITIES	iii
PRELIMINARY STATEMENT	1
STATEMENT OF FACTS	4
A. The Transaction	4
B. The FTC Challenge	7
C. The Litigation Schedule	9
D. IOSA and Its Motion	10
ARGUMENT	12
I. IOSA DOES NOT SATISFY THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT UNDER RULE 24(a)(2)	12
A. Legal Standard for Intervention as of Right	12
B. IOSA's Motion Is Untimely	14
C. IOSA Lacks a Legally Cognizable Interest Sufficient for Intervention as of Right	18
D. IOSA's Interests Are Adequately Represented by the FTC	21
E. Disposition of This Action Will Not Impair IOSA's Ability to Protect Its Interests	26
II. THE COURT SHOULD DENY PERMISSIVE INTERVENTION UNDER RULE 24(b)	28
A. Legal Standard for Permissive Intervention	28
B. Intervention Would Cause Undue Delay and Prejudice to Defendants	29
C. IOSA's Participation Would Not Meaningfully Assist the Court	33
III. ALTERNATIVELY, IF THE COURT IS INCLINED TO PERMIT ANY PARTICIPATION, IT SHOULD BE LIMITED TO AMICUS CURIAE STATUS	35
CONCLUSION	38
CERTIFICATE OF SERVICE	40
PROPOSED ORDER	41

Page(s)

Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003)	13, 22, 23
Callahan v. Brookdale Senior Living Communities, Inc., 863 F.3d 1110 (9th Cir. 2017)	13, 14
Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893 (9th Cir. 2011)	13, 22
County of Fresno v. Andrus, 622 F.2d 436 (9th Cir. 1980)	19
Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998)	13, 19
FTC v. Tarrant Holdings, 549 F.2d 289 (4th Cir. 1977)	23, 34
FTC v. Dean Foods Co., 384 U.S. 597 (1966)	27
FTC v. H.J. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001)	7, 27
FTC v. Ostrander & Co., No. 23-cv-00076 (S.D. Cal. 2023)	24, 34
FTC v. Adriatic Enterprises, Inc., No. 22-cv-05765 (N.D. Cal. 2023)	24, 34
FTC v. Kestrel Partners LLC, 681 F. Supp. 3d 1069 (N.D. Cal. 2023)	24, 27, 34
FTC v. Staples, Inc., 190 F. Supp. 3d 100 (D.D.C. 2016)	24, 34
FTC v. Sysco Corp., 113 F. Supp. 3d 1 (D.D.C. 2015)	27, 34
FTC v. Tronox Holdings PLC, 332 F. Supp. 3d 187 (D.D.C. 2018)	24, 34
Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999)	36
League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997)	14, 15
Nken v. Holder, 556 U.S. 418 (2009)	15
Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996)	13, 22
Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009)	13, 19
Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006)	19, 26
Smith v. Los Angeles Unified School District, 830 F.3d 843 (9th Cir. 2016)	14, 15, 16
Southwest Center for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001)	13, 26
Trbovich v. United Mine Workers, 404 U.S. 528 (1972)	22
United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002)	22, 23
Wilderness Soc'y v. U.S. Forest Service, 630 F.3d 1173 (9th Cir. 2011)	13, 14

Page(s)

15 U.S.C. § 18 (Clayton Act § 7)	1, 7, 8
15 U.S.C. § 18a (Hart-Scott-Rodino Antitrust Improvements Act of 1976)	7
15 U.S.C. § 45 (FTC Act § 5)	23
15 U.S.C. § 53(b) (FTC Act § 13(b))	1, 7, 27, 28
Fed. R. Civ. P. 24(a)(2)	passim
Fed. R. Civ. P. 24(b)(1)(B)	28, 29
Fed. R. Civ. P. 24(b)(3)	28, 29

Page(s)

7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1908 (3d ed. 2024)	13, 28
U.S. Dep't of Justice & Fed. Trade Comm'n, 2023 Merger Guidelines	8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION
FEDERAL TRADE COMMISSION,
Plaintiff,
v.
CASCADE RETAIL HOLDINGS INC. and PINNACLE MARKET GROUP INC.,
Defendants.
Case No. 2:25-cv-01087-RAJ
Hon. Richard A. Johannsen
DEFENDANTS' MEMORANDUM IN OPPOSITION TO NON-PARTY INDEPENDENT ONLINE SELLERS ALLIANCE'S MOTION TO INTERVENE
Howard Bellamy (WSBA No. 38241) Elaine Forsythe (WSBA No. 41879) Elliot Nguyen (WSBA No. 52614) Aaron Liu (WSBA No. 56302) CALDERWOOD & HARKNESS LLP 1401 K Street NW, Suite 1200 Washington, D.C. 20005 Telephone: (202) 555-7400 Facsimile: (202) 555-7401
901 Fifth Avenue, Suite 4100 Seattle, WA 98164 Telephone: (206) 555-8800 Facsimile: (206) 555-8801
Attorneys for Defendant Cascade Retail Holdings Inc.
Joined by:
Diana Whitfield (TX Bar No. 21084300; pro hac vice) Kenneth Oshiro (TX Bar No. 24109855; pro hac vice) WHITFIELD, GREER & TANAKA LLP 100 Congress Avenue, Suite 2200 Austin, TX 78701 Telephone: (512) 555-3200 Facsimile: (512) 555-3201
Attorneys for Defendant Pinnacle Market Group Inc.
TABLE OF CONTENTS
Right-click to update Table of Contents
TABLE OF AUTHORITIES
Cases
Statutes and Rules
Other Authorities
PRELIMINARY STATEMENT
The Independent Online Sellers Alliance ("IOSA"), a 501(c)(6) trade association headquartered at 1025 Vermont Avenue NW, Suite 600, Washington, D.C. 20005, represented by Galloway & Peck LLP (lead partner Martina Galloway, 60 East 42nd Street, Suite 2600, New York, NY 10165), seeks to intervene in this expedited Section 13(b) preliminary injunction proceeding brought by the Federal Trade Commission ("FTC" or "Commission"). IOSA asks this Court to grant it the full rights of a party — including the right to file independent briefs, propound and respond to discovery, and participate in the evidentiary hearing set for September 8, 2025. The motion should be denied in its entirety.
This case arises from the FTC's challenge to the proposed $4.7 billion all-cash acquisition by Cascade Retail Holdings Inc. ("Cascade") of Pinnacle Market Group Inc. ("Pinnacle"). The FTC filed its complaint on June 23, 2025, seeking a preliminary injunction under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), alleging that the merger would substantially lessen competition in "online marketplace platform services for third-party sellers in the United States" in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. The Commission authorized the complaint by a 3–2 vote. The matter is separately proceeding before the Commission under Administrative Docket No. 9438. The evidentiary hearing before this Court on the preliminary injunction motion is set for September 8, 2025 — barely two months away — and the parties have been operating under a rigorously compressed schedule since the July 14, 2025 initial case management conference.
IOSA's motion to intervene should be denied for three independent and mutually reinforcing reasons.
First, IOSA cannot satisfy the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a)(2). Its motion is untimely, filed weeks after the complaint was filed, after the case management conference, and during the compressed discovery period — when IOSA has known about this transaction since it was publicly announced on March 17, 2025, and has known about the FTC's investigation since at least the public disclosure of the Second Request on May 7, 2025. IOSA's claimed interest is speculative and generalized — a trade association's advocacy concern about future pricing practices does not constitute the type of direct, substantial, and legally protectable interest the Ninth Circuit demands. And IOSA's interests, to the extent they are cognizable at all, are already adequately represented by the FTC, whose complaint explicitly alleges harm to third-party sellers and whose litigation team is presenting precisely the seller-side theory of harm that IOSA purports to champion.
Second, permissive intervention under Rule 24(b) should be denied because it would cause undue delay and prejudice to Defendants. Granting IOSA party status would introduce additional discovery demands, deposition requests, briefing obligations, and hearing time into an already compressed schedule. The September 8, 2025 hearing date is critical. Defendants face a March 14, 2026 outside date under the Merger Agreement (with a limited extension to June 14, 2026 available only if the sole unsatisfied condition is regulatory clearance), a reverse termination fee of $282 million, committed financing that includes a $2.8 billion term loan facility with time-limited availability, and ongoing uncertainty that harms both companies' operations, employees, and shareholders. Any delay jeopardizes the viability of the transaction and inflicts irreparable harm that no subsequent remedy can cure.
Third, IOSA has failed to articulate any argument, legal theory, or category of evidence that is not already being presented — or that will not be presented — by the FTC. The Commission has the full investigatory record, access to documents and testimony from hundreds of third-party sellers obtained through its pre-complaint investigation and Second Request process, a team of experienced antitrust litigators, and a retained economic expert. IOSA's participation would be cumulative and duplicative.
If the Court is nonetheless inclined to allow IOSA some form of participation, Defendants respectfully submit that the appropriate vehicle is amicus curiae status — which would allow IOSA to submit a brief within the existing schedule without the attendant discovery rights, motion practice, and hearing participation that would accompany full intervention. Defendants would not oppose such a narrowly tailored submission, provided it adheres to the Court's schedule and does not disrupt the September 8, 2025 hearing.
STATEMENT OF FACTS
A. The Transaction
On March 14, 2025, Cascade and Pinnacle executed a definitive Agreement and Plan of Merger (the "Merger Agreement") providing for Cascade's acquisition of 100% of Pinnacle's outstanding common stock at a price of $26.85 per share in cash. Based on 175,047,319 shares of Pinnacle common stock outstanding as of the record date, the aggregate transaction consideration is approximately $4.7 billion, representing a 20.4% premium over Pinnacle's unaffected closing price of $22.30 per share on March 7, 2025 — the last full trading day prior to market rumors regarding a potential transaction.
The transaction is structured as a reverse triangular merger under the Delaware General Corporation Law. CRH Merger Sub Inc., a wholly owned subsidiary of Cascade formed solely for the purpose of effectuating the merger, will merge with and into Pinnacle, with Pinnacle surviving as a wholly owned subsidiary of Cascade. The Merger Agreement was publicly announced via a joint Form 8-K filing on March 17, 2025. Cascade's definitive proxy statement on Schedule 14A was filed with the Securities and Exchange Commission on April 28, 2025.
Cascade Retail Holdings Inc. Cascade is a publicly traded (Nasdaq: CSRT) omnichannel retailer headquartered in Seattle, Washington. Founded in 1987, Cascade operates approximately 340 brick-and-mortar retail locations across 38 states, a direct-to-consumer e-commerce platform (CascadeDirect.com), and a third-party seller marketplace known as CascadeMarket. CascadeMarket was launched on June 1, 2019, as a complement to Cascade's existing retail and e-commerce operations. In fiscal year 2024, Cascade reported total revenue of $28.6 billion, with approximately $9.3 billion attributable to its e-commerce and marketplace segments combined. CascadeMarket processed approximately $3.1 billion in gross merchandise volume ("GMV") from approximately 42,000 active third-party sellers during FY2024, generating $527 million in marketplace services revenue, reflecting an approximate 17% take rate. CascadeMarket is the fourth-largest online marketplace platform in the United States by GMV.
Pinnacle Market Group Inc. Pinnacle is a publicly traded (Nasdaq: PMGI) online marketplace platform headquartered in Austin, Texas. Pinnacle was co-founded in 2014 by Rajiv Chandravar and Lena Kowalski with the mission of providing independent sellers a technology-forward marketplace to reach consumers. Pinnacle hosts approximately 185,000 active third-party sellers and processed approximately $11.4 billion in GMV in FY2024, generating $1.82 billion in net revenue at an approximate 16% take rate. Pinnacle is the second-largest online marketplace platform in the United States by GMV, behind Vertex Commerce Inc.
The Merger Agreement contains customary termination provisions. Cascade is obligated to pay a reverse termination fee of $282 million if the transaction is not consummated by the outside date due to a failure to obtain regulatory clearance. Pinnacle is obligated to pay a company termination fee of $164.5 million in certain other termination scenarios. The outside date is March 14, 2026, twelve months from the date of execution of the Merger Agreement, with a single extension to June 14, 2026 available only if, as of the initial outside date, the sole remaining unsatisfied closing condition is the receipt of antitrust clearance. Cascade has arranged committed financing for the transaction consisting of a $2.8 billion term loan facility from Whitmore National Bank, N.A. (commitment letter dated March 12, 2025) and approximately $1.9 billion in cash on hand. The financing commitments are subject to customary conditions and limited availability periods that are keyed to the Merger Agreement's outside date.
B. The FTC Challenge
On April 2, 2025, Cascade and Pinnacle filed their respective notification forms under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a (HSR Filing No. 20250402-0347). The initial 30-day waiting period was set to expire on May 2, 2025. On May 7, 2025, the FTC issued a Second Request for Additional Information and Documentary Material (File No. 251-0089), extending the waiting period. Both Cascade and Pinnacle certified substantial compliance with the Second Request on June 10, 2025.
On June 20, 2025, the Commission, by a 3–2 vote, issued an administrative complaint challenging the proposed transaction under Section 7 of the Clayton Act, 15 U.S.C. § 18 (Administrative Docket No. 9438). Three days later, on June 23, 2025, the FTC filed its complaint in this Court seeking a preliminary injunction under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), to enjoin the merger pending the conclusion of the administrative proceeding.
The FTC's complaint alleges that the relevant product market is "online marketplace platform services for third-party sellers in the United States" and that the relevant geographic market is the United States. According to the FTC's complaint, market shares by GMV are as follows: Vertex Commerce Inc. holds approximately 35.7%, Pinnacle holds approximately 30.1%, Nomad Shops LLC holds approximately 14.6%, Cascade (CascadeMarket) holds approximately 8.2%, and all other marketplace platforms collectively hold approximately 11.4%. The FTC calculates that the proposed merger would combine the second- and fourth-largest competitors, resulting in a combined market share of approximately 38.3%. The FTC further alleges that the pre-merger Herfindahl-Hirschman Index ("HHI") for the relevant market is 2,361, and that the post-merger HHI would be 2,856, representing an increase (delta) of 495 — well above the thresholds that the 2023 Merger Guidelines identify as presumptively raising significant competitive concerns in an already highly concentrated market.
The FTC's complaint specifically alleges that the proposed merger would harm competition by, among other things: (a) giving the combined entity undue leverage over third-party sellers through increased take rates; (b) reducing the quality and scope of seller services; (c) diminishing innovation in marketplace platform technology; and (d) eliminating direct head-to-head competition between CascadeMarket and Pinnacle for the patronage of third-party sellers. The complaint devotes multiple paragraphs to the seller-side effects of the merger, describing the importance of marketplace platform competition to third-party sellers and consumers alike.
C. The Litigation Schedule
At the initial case management conference held on July 14, 2025, before the Honorable Richard A. Johannsen, United States District Judge, the Court established an expedited schedule for the preliminary injunction proceeding. The schedule, memorialized in the Court's Case Management and Scheduling Order (Dkt. 28), provides:
• August 4, 2025: Close of fact discovery.
• August 11, 2025: Defendants' opposition to the FTC's motion for preliminary injunction due.
• August 18, 2025: Expert reports due (all parties).
• August 25, 2025: FTC's reply memorandum due.
• August 29, 2025: Rebuttal expert reports due.
• September 8–12, 2025: Five-day evidentiary hearing on the preliminary injunction motion.
This compressed timeline reflects the time-sensitive nature of merger litigation and the need for prompt resolution of the FTC's Section 13(b) motion. As the Court recognized at the case management conference, delay in resolving the preliminary injunction motion threatens the viability of the underlying transaction. Cascade faces a reverse termination fee of $282 million and a hard outside date of March 14, 2026, with the limited extension to June 14, 2026 available only if the sole outstanding condition is antitrust clearance. Moreover, during the pendency of the litigation, both companies face substantial uncertainty that impedes their ability to plan, operate, and retain employees. The Court's expedited schedule was designed to balance the need for thorough adjudication with the practical realities of merger timing.
As of the date of this filing, the parties are deep in the discovery process. Cascade and Pinnacle have collectively produced over 2.3 million pages of documents, and the FTC has produced its investigatory file materials pursuant to the Court's scheduling order. The parties have taken or scheduled depositions of more than two dozen fact witnesses, including current and former executives of both Cascade and Pinnacle, as well as third-party witnesses from competing marketplace platforms and industry participants. Expert work is well underway, with reports due August 18, 2025.
D. IOSA and Its Motion
IOSA is a 501(c)(6) trade association that purports to represent the interests of independent online sellers who sell through various marketplace platforms, including Pinnacle's marketplace and CascadeMarket. According to its motion papers, IOSA was founded in 2018 and has approximately 3,200 members, predominantly small and medium-sized businesses that sell consumer goods through online marketplace platforms. IOSA claims that its members collectively transact approximately $4.8 billion in annual GMV across multiple marketplace platforms.
IOSA, through its counsel at Galloway & Peck LLP (lead partner Martina Galloway), filed its motion to intervene on July 21, 2025 — four weeks after the FTC filed its complaint in this Court, one week after the initial case management conference at which the expedited schedule was set, and in the midst of the compressed discovery period. IOSA's motion was filed more than four months after the merger was publicly announced on March 17, 2025, and more than two months after the Second Request publicly confirmed the FTC's investigation.
IOSA seeks to intervene either as of right under Federal Rule of Civil Procedure 24(a)(2) or, in the alternative, for permissive intervention under Rule 24(b). In its motion papers, IOSA asserts that its members would be harmed by the proposed merger through increased take rates, reduced seller services, and diminished innovation in marketplace platform technology. IOSA seeks leave to file its own briefs in opposition to the merger, to conduct discovery (including depositions of Cascade and Pinnacle executives), and to participate in the September 8, 2025 evidentiary hearing through the presentation of testimony and cross-examination of witnesses.
IOSA has not identified any specific argument, legal theory, or category of evidence that it would present that the FTC has not already alleged or will not present. IOSA's motion papers do not point to any divergence between its litigation objectives and those of the FTC. Instead, IOSA asserts in conclusory terms that its members' "on-the-ground experience" as marketplace sellers provides a "unique perspective" that the FTC "cannot fully replicate." Motion at 8. This generalized assertion falls far short of what is required to justify intervention in an expedited preliminary injunction proceeding.
ARGUMENT
I. IOSA DOES NOT SATISFY THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT UNDER RULE 24(a)(2)
A. Legal Standard for Intervention as of Right. Federal Rule of Civil Procedure 24(a)(2) provides that a court must permit anyone to intervene who, on timely motion, "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."
The Ninth Circuit has distilled this provision into a four-part test. A proposed intervenor must demonstrate: (1) the motion is timely; (2) the applicant claims a "significantly protectable" interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest is not adequately represented by existing parties. Wilderness Soc'y v. U.S. Forest Service, 630 F.3d 1173, 1177 (9th Cir. 2011); Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).
Each of these four requirements is an independent prerequisite to intervention as of right. The failure to satisfy any single element is dispositive. Callahan v. Brookdale Senior Living Communities, Inc., 863 F.3d 1110, 1114 (9th Cir. 2017). The applicant bears the burden of establishing all four elements. Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011); Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001).
While the Ninth Circuit has at times described the standard as being construed broadly in favor of intervention, this liberal approach "is not a license to intervene without meeting the requirements of Rule 24(a)(2)." Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996). The Court retains the obligation to assess each element independently and to deny intervention where the applicant has failed to carry its burden. See 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1908 (3d ed. 2024).
As set forth below, IOSA fails to satisfy at least three of the four requirements — timeliness, sufficiency of interest, and adequacy of representation — and its motion should be denied on any of these independent grounds.
B. IOSA's Motion Is Untimely. The threshold inquiry under Rule 24(a)(2) is timeliness. Wilderness Soc'y, 630 F.3d at 1177. Timeliness is assessed in light of all the circumstances, and the Ninth Circuit considers three primary factors: (1) the stage of the proceeding at which the applicant seeks to intervene; (2) the prejudice to the existing parties from the delay; and (3) the reasons, if any, for the delay. Smith v. Los Angeles Unified School District, 830 F.3d 843, 854 (9th Cir. 2016); League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997).
All three factors weigh heavily against IOSA.
Stage of the Proceeding. IOSA filed its motion to intervene on July 21, 2025 — nearly five weeks after the FTC filed its district court complaint on June 23, 2025, and one full week after the July 14, 2025 case management conference at which the Court established the expedited schedule for the preliminary injunction proceeding. By the time IOSA filed its motion, the parties had already conferred and agreed upon a detailed discovery plan, had commenced document productions, and had begun scheduling depositions. Fact discovery is set to close on August 4, 2025 — just two weeks after IOSA's filing. The Defendants' opposition brief is due August 11, 2025. Expert reports are due August 18, 2025. The evidentiary hearing is set for September 8, 2025.
IOSA's motion was thus filed at an advanced stage of this expedited proceeding. The parties are deep in the discovery process, have made substantial investments of time and resources in preparing for the hearing on the compressed schedule set by the Court, and are rapidly approaching key filing deadlines. At this juncture, granting intervention would require reopening the discovery schedule, extending briefing deadlines, and potentially delaying the September 8 hearing — consequences that are directly at odds with the expedited nature of this proceeding.
Prejudice to Existing Parties. The prejudice to Defendants from late intervention would be severe and concrete. This is not an ordinary civil case with a generous discovery schedule and a trial date months or years in the future. This is a Section 13(b) preliminary injunction proceeding governed by an expedited schedule specifically designed to provide prompt resolution of the FTC's motion. Every day of delay threatens the viability of the transaction.
Cascade faces a hard outside date of March 14, 2026, under the Merger Agreement, with a limited extension to June 14, 2026, available only if the sole outstanding condition is antitrust clearance. Cascade has committed $2.8 billion in term loan financing from Whitmore National Bank, N.A., with availability periods keyed to the outside date, and has approximately $1.9 billion in cash on hand allocated to the transaction. A delay in the hearing could compress the timeline for post-hearing proceedings, delay the Court's decision, and ultimately jeopardize the parties' ability to consummate the transaction within the Merger Agreement's time constraints. If the transaction cannot be completed, Cascade faces a reverse termination fee of $282 million, and Pinnacle's shareholders will be deprived of the $26.85 per share premium that the merger offers.
If IOSA is granted full party status, it will inevitably seek additional time for discovery — including depositions of Cascade and Pinnacle executives, document requests, and interrogatories — on top of the extensive discovery already underway. IOSA will also seek additional briefing time and hearing time. Even a modest expansion of the schedule would cascade through the remaining deadlines and threaten the September 8 hearing date. The Ninth Circuit has held that prejudice to existing parties from delay in filing an intervention motion is entitled to "great weight" in the timeliness analysis. Smith, 830 F.3d at 854.
Reasons for Delay. IOSA has offered no adequate explanation for its delay in seeking intervention. The proposed merger was publicly announced on March 17, 2025 — more than four months before IOSA filed its motion. The FTC's investigation was publicly known following the issuance of the Second Request on May 7, 2025 — more than two and a half months before IOSA's filing. The FTC's complaint was filed on June 23, 2025, and was the subject of extensive public reporting. IOSA, as a trade association that purports to represent the very constituency the FTC alleges will be harmed by the merger, was on clear notice of the transaction, the FTC's investigation, and the litigation from the earliest stages.
IOSA's motion papers offer only the vague explanation that it needed time to "evaluate the competitive implications of the transaction" and to "consult with its membership." Motion at 5. This explanation is insufficient. A trade association with 3,200 members that exists for the purpose of advocating on behalf of online marketplace sellers should not require four months to determine whether a $4.7 billion merger between two of the largest marketplace platforms in the country implicates its interests. IOSA's delay is attributable to its own lack of diligence, not to any uncertainty about whether this litigation would affect the interests it claims.
The Court should also consider that IOSA's delay, even if partially excusable, has practical consequences that cannot be undone. Even if the Court were to grant intervention today, IOSA could not meaningfully participate in discovery before the August 4, 2025, close of fact discovery without disrupting the existing schedule. Nor could IOSA retain and prepare experts in time for the August 18, 2025, expert report deadline. The only way to accommodate IOSA's participation would be to delay the hearing — precisely the result that the expedited schedule was designed to prevent. See League of United Latin Am. Citizens, 131 F.3d at 1302 (finding intervention untimely where it would disrupt the existing litigation schedule); Nken v. Holder, 556 U.S. 418, 434 (2009) (emphasizing the importance of avoiding unnecessary delay in expedited proceedings).
For all these reasons, IOSA's motion is untimely. This failure alone is dispositive and warrants denial of the motion without reaching the remaining elements of the Rule 24(a)(2) analysis.
C. IOSA Lacks a Legally Cognizable Interest Sufficient for Intervention as of Right. Even if IOSA's motion were timely, it would fail because IOSA lacks a "significantly protectable" interest relating to the property or transaction at issue. The Ninth Circuit requires that a proposed intervenor demonstrate "an interest relating to the property or transaction which is the subject of the action" that is "direct, substantial, and legally protectable." Donnelly, 159 F.3d at 409–10; County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980). A generalized interest in the outcome of litigation, or an economic interest shared with a broad class of market participants, does not satisfy this requirement. Perry, 587 F.3d at 951.
IOSA's claimed interest is that its members — independent online sellers who sell through various marketplace platforms — might face higher take rates, reduced seller services, or diminished innovation if the merger is consummated. This interest is speculative and contingent in at least three respects.
First, the harm IOSA posits depends on a chain of uncertain future events: the merger would need to be consummated, the combined entity would need to choose to raise take rates or reduce seller services (decisions that are not inevitable and depend on competitive dynamics), and IOSA's members would need to lack alternatives (when even the FTC's own market share data shows multiple significant competitors, including Vertex Commerce at 35.7% and Nomad Shops at 14.6%). IOSA does not — and cannot — point to any concrete, imminent harm that would result from the Court's disposition of the FTC's preliminary injunction motion.
Second, IOSA's interest is generalized and diffuse. It is shared by tens of thousands of marketplace sellers across the United States, not just IOSA's 3,200 members. IOSA is a trade association asserting an advocacy interest on behalf of its members, not a party with a direct, individualized stake in the transaction. IOSA has no contractual relationship with either Cascade or Pinnacle. IOSA is not a party to the Merger Agreement. No IOSA member's contract with Cascade or Pinnacle will be modified or extinguished by the Court's ruling on the FTC's motion. IOSA's interest is, at bottom, an interest in the competitive conditions of the marketplace — precisely the kind of generalized public interest that the FTC is charged with protecting.
Third, IOSA's interest is not a property or contractual interest that would be impaired by the disposition of this action. This is not a case where the proposed intervenor holds a lien, a lease, a contractual right, or any other legally protectable interest that would be directly affected by the judgment. IOSA's claimed interest is indistinguishable from the interest of any market participant who might prefer that market conditions remain unchanged. This type of general economic interest does not rise to the level of a "significantly protectable" interest sufficient to support intervention as of right. See Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (requiring a "direct" and "substantial" interest, not a merely derivative or speculative one).
Courts have consistently distinguished between the type of concrete, particularized interests that support intervention as of right — such as interests in specific property, contractual rights, or legally enforceable claims — and the type of generalized economic or policy interests that IOSA asserts here. IOSA falls squarely on the wrong side of this line. Its motion should be denied for failure to establish a cognizable interest.
D. IOSA's Interests Are Adequately Represented by the FTC. Even assuming IOSA could demonstrate a cognizable interest and a timely filing — and it can demonstrate neither — its motion would still fail because its interests are adequately represented by the FTC. The adequacy of representation requirement is, in the circumstances of this case, the most critical factor and is independently dispositive of IOSA's motion.
The standard for assessing adequacy of representation is well established. Where an existing party shares the same ultimate objective as the proposed intervenor, there is a presumption of adequate representation. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003); Citizens for Balanced Use, 647 F.3d at 898. To overcome this presumption, the proposed intervenor must make a "compelling showing" that the existing party's representation is inadequate. Id. This burden is heightened where the existing party is a governmental entity charged by law with representing the interests that the proposed intervenor seeks to advance. United States v. City of Los Angeles, 288 F.3d 391, 402 (9th Cir. 2002) (where the government is acting on behalf of a constituency, "the party seeking to intervene must demonstrate that the government's representation is inadequate"); Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972).
The presumption of adequate representation applies with full force here. The FTC is the federal agency to which Congress has entrusted the protection of competition. The FTC Act, 15 U.S.C. §§ 41–58, empowers the Commission to investigate and challenge mergers and acquisitions that may substantially lessen competition. The FTC's complaint in this very action is predicated on the theory that the proposed merger between Cascade and Pinnacle would harm competition in online marketplace platform services for third-party sellers — the exact constituency IOSA claims to represent.
The alignment between IOSA's stated interests and the FTC's litigation position is not merely general — it is precise and specific. The FTC's complaint devotes extensive attention to seller-side effects. Paragraphs 47 through 63 of the complaint describe in detail the ways in which the merger would allegedly harm third-party sellers, including through increased take rates, reduced seller services, diminished innovation in marketplace platform technology, and the elimination of head-to-head competition between CascadeMarket and Pinnacle for the patronage of third-party sellers. These are the identical harms that IOSA identifies in its motion papers.
The FTC's litigation team is fully equipped to present this case. The Bureau of Competition's Mergers IV Division, led by Assistant Director Claire Dunmore, with Senior Trial Counsel Samuel Ortega and Trial Attorney Rebecca Yun, is handling the litigation. The FTC has retained Dr. Wallace Keenan of Thornfield Research Group as its expert economist to testify regarding market definition, competitive effects, and the likely impact of the merger on third-party sellers. Dr. Nathaniel Hargrove of the FTC's Bureau of Economics has separately analyzed market definition and concentration. The FTC's litigation team has full access to the investigatory record compiled during the pre-complaint investigation and Second Request process (File No. 251-0089), which includes documents and data from both Cascade and Pinnacle, as well as extensive information obtained from third-party market participants — including declarations, written submissions, and interview transcripts from third-party sellers, many of whom are likely IOSA members.
The FTC's access to this investigatory record is particularly significant. During the Second Request process, the FTC issued compulsory process — including civil investigative demands and subpoenas — to dozens of third-party marketplace sellers, competing platforms, and industry participants. The FTC obtained detailed information about seller experiences, take rates, switching behavior, and competitive alternatives. This information is directly relevant to IOSA's stated concerns and will form the evidentiary foundation of the FTC's case at the September 8 hearing. IOSA cannot replicate this investigatory record, nor does it need to — the FTC already has it and will present it.
Against this backdrop, IOSA has failed to make the "compelling showing" required to overcome the presumption of adequate representation. IOSA's motion papers do not identify any specific argument, legal theory, or category of evidence that the FTC has failed or will fail to present. IOSA does not point to any disagreement with the FTC's proposed market definition, theory of competitive harm, or litigation strategy. IOSA does not allege that the FTC has ignored seller-side concerns or given them insufficient weight. IOSA does not identify any witness it would call whom the FTC is not already planning to call, or any document it would introduce that the FTC does not already possess.
Instead, IOSA offers only the vague assertion that its members have "on-the-ground experience" that provides a "unique perspective" the FTC "cannot fully replicate." Motion at 8. This is precisely the kind of conclusory assertion that courts have consistently held insufficient to demonstrate inadequacy of representation. The mere possibility that IOSA might emphasize certain evidence differently, present additional anecdotal testimony from sellers, or devote more hearing time to particular seller concerns does not establish that the FTC's representation is inadequate. See Arakaki, 324 F.3d at 1086 (holding that a proposed intervenor's disagreement with the existing party's litigation strategy does not demonstrate inadequacy); City of Los Angeles, 288 F.3d at 402 (same); FTC v. Tarrant Holdings, 549 F.2d 289, 292 (4th Cir. 1977) (denying intervention in FTC merger proceeding where proposed intervenor's interests were aligned with the FTC's).
Courts in Section 13(b) merger challenges have routinely found that the FTC adequately represents the interests of market participants who might be affected by a challenged merger. See, e.g., FTC v. Staples, Inc., 190 F. Supp. 3d 100, 105 n.3 (D.D.C. 2016); FTC v. Tronox Holdings PLC, 332 F. Supp. 3d 187, 195 (D.D.C. 2018); FTC v. Kestrel Partners LLC, 681 F. Supp. 3d 1069, 1078 (N.D. Cal. 2023); FTC v. Ostrander & Co., No. 23-cv-00076, Dkt. 42 (S.D. Cal. Mar. 22, 2023); FTC v. Adriatic Enterprises, Inc., No. 22-cv-05765, Dkt. 87 (N.D. Cal. Jan. 18, 2023). In each of these cases, courts recognized that the FTC is charged with protecting the public interest — including the interests of market participants such as third-party sellers — and that proposed intervenors whose interests align with the FTC's have failed to demonstrate inadequacy of representation.
The reasoning of these decisions applies with particular force here. The FTC's entire theory of the case is built around the harm the merger would allegedly cause to third-party sellers. The FTC is not merely tangentially concerned with seller interests — seller-side harm is the central focus of the FTC's complaint. If anything, the FTC's incentives to vigorously present evidence of seller harm are stronger than IOSA's, because the FTC's ability to obtain a preliminary injunction depends on convincing this Court that the merger would harm competition in the market for marketplace platform services for third-party sellers. The FTC and IOSA share the identical ultimate objective: preventing the merger from being consummated.
IOSA's interests are adequately represented by the FTC. This independent failure warrants denial of the motion.
E. Disposition of This Action Will Not Impair IOSA's Ability to Protect Its Interests. The third substantive element of the Rule 24(a)(2) analysis — whether the disposition of the action may, as a practical matter, impair or impede the movant's ability to protect its interest — also weighs against intervention. See Southwest Center for Biological Diversity, 268 F.3d at 822; Prete, 438 F.3d at 954.
This is a preliminary injunction proceeding under Section 13(b) of the FTC Act, not a final adjudication on the merits. The only issue before the Court is whether the FTC has shown a likelihood that the proposed transaction, if consummated, would violate Section 7 of the Clayton Act, and whether equitable considerations favor issuing a preliminary injunction to maintain the status quo pending the FTC's administrative proceeding. See FTC v. H.J. Heinz Co., 246 F.3d 708, 714 (D.C. Cir. 2001); FTC v. Sysco Corp., 113 F. Supp. 3d 1, 23 (D.D.C. 2015). A ruling on the preliminary injunction motion will not constitute a final judgment on whether the merger violates the antitrust laws. That determination will be made, in the first instance, in the FTC's administrative proceeding (Docket No. 9438).
Regardless of how this Court rules on the preliminary injunction motion, IOSA retains multiple avenues to protect its interests. IOSA may participate in the FTC's administrative proceeding by seeking leave to intervene before the Administrative Law Judge. IOSA may submit comments to the Commission. IOSA may engage in public advocacy regarding the merger. IOSA's members may provide testimony or evidence to the FTC for use in the administrative proceeding or in this Court. No judgment entered in this preliminary injunction proceeding will bind IOSA or its members. No rights that IOSA or its members independently hold will be extinguished by the Court's ruling.
IOSA cannot demonstrate that the disposition of this action will impair or impede its ability to protect its interests, and this factor further supports denial of the motion.
II. THE COURT SHOULD DENY PERMISSIVE INTERVENTION UNDER RULE 24(b)
A. Legal Standard for Permissive Intervention. Under Rule 24(b)(1)(B), a court may, in its discretion, permit anyone to intervene who "has a claim or defense that shares with the main action a common question of law or fact." Unlike intervention as of right, permissive intervention is entirely discretionary. The court "must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3); see also 7C Wright & Miller, Federal Practice and Procedure § 1913 (3d ed. 2024).
The discretionary nature of permissive intervention means that even where a common question of law or fact exists, the court may — and should — deny intervention where granting it would cause undue delay or prejudice, would not meaningfully assist the court, or would unduly complicate the proceedings. The court's exercise of discretion is guided by practical considerations, including the nature and stage of the proceedings, the existing litigation schedule, the prejudice to the existing parties, and the extent to which the proposed intervenor's interests are already represented.
B. Intervention Would Cause Undue Delay and Prejudice to Defendants. Even if IOSA could establish a common question of law or fact with the main action — a threshold requirement that Defendants do not concede — permissive intervention should be denied because it would cause undue delay and severe prejudice to Defendants. The considerations that weigh against IOSA's timeliness under Rule 24(a)(2) apply with equal or greater force under Rule 24(b).
The September 8, 2025, hearing date is the linchpin of this proceeding. Every aspect of the parties' preparation — document productions, depositions, expert retention, expert analysis, briefing — is calibrated to that date. The parties have been operating under the compressed schedule set by the Court at the July 14, 2025, case management conference for weeks. The schedule was designed with the participation of two existing parties — the FTC and the Defendants — and was tailored to the specific discovery burdens and briefing needs of those parties.
Adding IOSA as a party would fundamentally alter the dynamics of the litigation. IOSA's motion expressly seeks leave to conduct discovery, including depositions of Cascade and Pinnacle executives. Even a limited set of additional depositions would impose substantial burdens on Defendants' witnesses and counsel, who are already operating under intense time pressure. IOSA would also presumably seek to serve document requests and interrogatories, review the extensive document productions already made by the parties, and prepare its own pre-hearing submissions. All of this would take time — time that does not exist under the current schedule.
Nor could IOSA's participation be accommodated by simply adding a few extra days to the schedule. The hearing date of September 8, 2025, was specifically chosen to ensure that the Court would have time to issue a decision well in advance of the critical contractual deadlines facing Defendants. Any delay in the hearing date would compress the post-hearing timeline, potentially delaying the Court's decision and creating a cascade of consequences that would threaten the viability of the transaction.
The financial stakes for Defendants underscore the severity of the prejudice. Cascade has committed a $2.8 billion term loan facility from Whitmore National Bank, N.A. (commitment letter dated March 12, 2025), the availability of which is tied to the Merger Agreement's outside date. Cascade has approximately $1.9 billion in cash on hand allocated to the transaction. The Merger Agreement imposes an outside date of March 14, 2026, with a single extension to June 14, 2026, available only if the sole remaining unsatisfied condition is regulatory clearance. If the transaction cannot be consummated by the outside date, the Merger Agreement terminates, and Cascade becomes liable for a reverse termination fee of $282 million. Pinnacle, in turn, faces a company termination fee of $164.5 million in certain other termination scenarios.
Beyond the contractual deadlines and financial exposure, delay imposes real-world harm on both companies. During the pendency of the litigation, Cascade and Pinnacle operate under uncertainty that affects their ability to retain key employees, plan capital expenditures, negotiate with vendors and partners, and execute their respective business strategies. This uncertainty is compounded every day the litigation remains unresolved.
The Court should also consider the practical consequences of IOSA's participation at the evidentiary hearing. If IOSA is granted full party status, it will have the right to call witnesses, cross-examine the parties' witnesses, and present argument. In a five-day evidentiary hearing, adding a third active participant would necessarily reduce the time available to the existing parties or extend the hearing beyond its scheduled duration. Either outcome is prejudicial: the former limits the parties' ability to present their cases, and the latter delays the Court's decision.
For all of these reasons, permissive intervention would cause undue delay and prejudice to Defendants and should be denied.
C. IOSA's Participation Would Not Meaningfully Assist the Court. In exercising its discretion under Rule 24(b), the Court should also consider whether IOSA's participation would provide any meaningful benefit that is not already available through the existing parties. It would not.
The FTC is the government agency charged by Congress with protecting competition. It has assembled a team of experienced antitrust litigators, retained a nationally recognized expert economist, and compiled an extensive investigatory record through the Second Request process and pre-complaint investigation. The FTC's case is specifically focused on the seller-side effects of the merger — precisely the issues IOSA claims to address. The FTC has access to documents, data, and testimony from third-party sellers, competing platforms, and industry participants. The FTC's presentation at the September 8 hearing will include testimony from third-party sellers about their experiences with Cascade's and Pinnacle's marketplace platforms, the competitive significance of the merger, and the likely effects on take rates, seller services, and innovation.
IOSA has not identified any specific argument, legal theory, or category of evidence that the FTC has not already alleged or will not present. IOSA's motion papers assert that its members' "on-the-ground experience" would be valuable, but the FTC already has access to — and will present — extensive evidence from third-party sellers. To the extent that IOSA has individual members who wish to provide testimony, those members can cooperate with the FTC's litigation team or provide declarations that the FTC can submit. Full party status is not required for IOSA's members to make their voices heard.
Courts in Section 13(b) merger challenges have consistently recognized that the FTC adequately represents the public interest, including the interests of market participants who might be affected by a challenged merger, and have denied intervention by trade associations and other non-parties on this basis. See FTC v. Staples, Inc., 190 F. Supp. 3d at 105 n.3; FTC v. Tronox Holdings PLC, 332 F. Supp. 3d at 195; FTC v. Kestrel Partners LLC, 681 F. Supp. 3d at 1078; FTC v. Sysco Corp., 113 F. Supp. 3d at 25; FTC v. Tarrant Holdings, 549 F.2d at 292; FTC v. Ostrander & Co., No. 23-cv-00076, Dkt. 42 (S.D. Cal. Mar. 22, 2023); FTC v. Adriatic Enterprises, Inc., No. 22-cv-05765, Dkt. 87 (N.D. Cal. Jan. 18, 2023). These decisions reflect a well-established principle: in Section 13(b) proceedings, the FTC stands as the representative of the public interest, and permitting intervention by every trade association or market participant that shares the FTC's litigation objectives would unnecessarily complicate and delay proceedings that are designed to be resolved expeditiously.
IOSA's participation would be cumulative and duplicative. It would add cost, complexity, and delay without providing any meaningful incremental benefit to the Court. Permissive intervention should be denied.
III. ALTERNATIVELY, IF THE COURT IS INCLINED TO PERMIT ANY PARTICIPATION, IT SHOULD BE LIMITED TO AMICUS CURIAE STATUS
If the Court determines, notwithstanding the foregoing, that IOSA's perspective on seller-side issues could be useful, Defendants respectfully submit that the appropriate vehicle for such participation is amicus curiae status — not full intervention as a party.
The distinction between amicus curiae and party status is significant. An amicus curiae is a "friend of the court" who provides information or argument that may be helpful to the court's resolution of the issues before it. An amicus does not have the rights of a party: it may not conduct discovery, depose witnesses, file motions, or participate in the evidentiary hearing as a cross-examiner or presenter of testimony. See Grutter v. Bollinger, 188 F.3d 394, 397 (6th Cir. 1999) (describing the limited role of amicus curiae). Amicus status thus allows the court to benefit from an outside perspective without the attendant disruption, delay, and prejudice that full party status would entail.
Amicus curiae participation is well suited to the circumstances of this case. IOSA's stated interest is in presenting the seller-side perspective on the merger's competitive effects — a perspective that it asserts it can provide through its members' experiences and industry knowledge. This perspective can be effectively conveyed through a written brief, without the need for independent discovery, deposition testimony, or hearing participation. If IOSA has specific factual information from its members that it believes would be helpful to the Court, it can present that information in the form of declarations attached to an amicus brief. If IOSA has legal arguments about market definition, competitive effects, or the merger's impact on third-party sellers, it can present those arguments in written form.
Defendants would not oppose a narrowly tailored amicus submission by IOSA, provided that it complies with the following conditions, which are consistent with the Court's existing schedule and the need to avoid delay and prejudice:
1. Any amicus brief should be filed on or before August 11, 2025 — the same date as Defendants' opposition to the FTC's motion — so that it does not disrupt the briefing schedule.
2. Any amicus brief should be subject to a reasonable page limit (Defendants suggest no more than 15 pages) to ensure that the brief is focused and does not impose undue burden on the parties or the Court.
3. IOSA should not be permitted to conduct any discovery, depose any witnesses, serve any document requests or interrogatories, or file any motions other than its amicus brief.
4. IOSA should not be permitted to participate in the September 8, 2025 evidentiary hearing as a party — including through the presentation of witnesses, cross-examination of the parties' witnesses, or oral argument — unless separately invited by the Court.
5. IOSA's amicus brief should be limited to issues related to the seller-side effects of the merger and should not address procedural matters, discovery disputes, or other issues outside the scope of the merits of the FTC's preliminary injunction motion.
These conditions would allow IOSA to place its perspective before the Court in a manner that is consistent with the interests of judicial efficiency, respects the existing litigation schedule, and avoids the delay and prejudice that full intervention would cause. Amicus curiae participation strikes the appropriate balance between IOSA's interest in making its views known and the parties' interest in prompt resolution of this time-sensitive merger litigation.
CONCLUSION
For the foregoing reasons, Defendants Cascade Retail Holdings Inc. and Pinnacle Market Group Inc. respectfully request that the Court enter an order denying the Independent Online Sellers Alliance's motion to intervene in its entirety.
IOSA has not met the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a)(2). Its motion is untimely, filed months after IOSA knew or should have known of its purported interest and at an advanced stage of this expedited proceeding. IOSA lacks a direct, substantial, and legally protectable interest sufficient to support intervention as of right — its generalized economic concerns about future marketplace conditions are speculative and shared by a broad class of market participants. The FTC, the federal agency charged by Congress with protecting competition, adequately represents IOSA's interests and is presenting precisely the seller-harm theory of competitive harm that IOSA seeks to advance. And the disposition of this preliminary injunction proceeding will not impair or impede IOSA's ability to protect its interests, which it may pursue through the FTC's administrative proceeding and other channels.
Permissive intervention under Rule 24(b) should likewise be denied because it would cause undue delay and prejudice to Defendants. The September 8, 2025, evidentiary hearing is immovable and essential. Adding IOSA as a party would inject additional discovery demands, deposition obligations, and briefing requirements into an already compressed schedule, threatening the hearing date and, ultimately, the viability of a $4.7 billion transaction on which the parties have committed billions of dollars in resources and on which thousands of employees and shareholders depend.
If the Court is inclined to permit any form of participation by IOSA, Defendants respectfully submit that it should be limited to amicus curiae status, subject to the conditions set forth in Section III above, so that IOSA may present its perspective without disrupting the existing schedule or prejudicing the parties.
Defendants respectfully request that the Court enter the Proposed Order attached hereto denying IOSA's motion to intervene.
Dated: July 28, 2025
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Howard Bellamy (WSBA No. 38241) Elaine Forsythe (WSBA No. 41879) Elliot Nguyen (WSBA No. 52614) Aaron Liu (WSBA No. 56302)
1401 K Street NW, Suite 1200 Washington, D.C. 20005 Telephone: (202) 555-7400 Facsimile: (202) 555-7401
901 Fifth Avenue, Suite 4100 Seattle, WA 98164 Telephone: (206) 555-8800 Facsimile: (206) 555-8801
Attorneys for Defendant Cascade Retail Holdings Inc.
JOINED BY:
WHITFIELD, GREER & TANAKA LLP
By: ________
Diana Whitfield (TX Bar No. 21084300; pro hac vice) Kenneth Oshiro (TX Bar No. 24109855; pro hac vice)
100 Congress Avenue, Suite 2200 Austin, TX 78701 Telephone: (512) 555-3200 Facsimile: (512) 555-3201
Attorneys for Defendant Pinnacle Market Group Inc.
CERTIFICATE OF SERVICE
I hereby certify that on July 28, 2025, I caused the foregoing Defendants' Memorandum in Opposition to Non-Party Independent Online Sellers Alliance's Motion to Intervene to be electronically filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all counsel of record, including the following:
Claire Dunmore Samuel Ortega Rebecca Yun Federal Trade Commission Bureau of Competition, Mergers IV Division 600 Pennsylvania Avenue NW Washington, D.C. 20580 Counsel for Plaintiff Federal Trade Commission
Martina Galloway Galloway & Peck LLP 60 East 42nd Street, Suite 2600 New York, NY 10165 Counsel for Proposed Intervenor Independent Online Sellers Alliance
Diana Whitfield Kenneth Oshiro Whitfield, Greer & Tanaka LLP 100 Congress Avenue, Suite 2200 Austin, TX 78701 Counsel for Defendant Pinnacle Market Group Inc.
By: ________
Howard Bellamy (WSBA No. 38241) CALDERWOOD & HARKNESS LLP
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION
FEDERAL TRADE COMMISSION,
Plaintiff,
v.
CASCADE RETAIL HOLDINGS INC. and PINNACLE MARKET GROUP INC.,
Defendants.
Case No. 2:25-cv-01087-RAJ
Hon. Richard A. Johannsen
[PROPOSED] ORDER DENYING NON-PARTY INDEPENDENT ONLINE SELLERS ALLIANCE'S MOTION TO INTERVENE
Before the Court is the Motion to Intervene filed by non-party Independent Online Sellers Alliance ("IOSA") (Dkt. __). Having considered the motion, the oppositions filed by Defendants Cascade Retail Holdings Inc. and Pinnacle Market Group Inc., and the record herein, and being fully advised in the premises, the Court hereby ORDERS as follows:
1. IOSA's motion to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) is DENIED.
2. IOSA's motion for permissive intervention under Federal Rule of Civil Procedure 24(b) is DENIED.
3. The existing Case Management and Scheduling Order (Dkt. 28) remains in full force and effect, and the evidentiary hearing on the FTC's motion for preliminary injunction shall proceed as scheduled on September 8, 2025.
IT IS SO ORDERED.
Dated: ________
________________________________________
HONORABLE RICHARD A. JOHANNSEN United States District Judge Western District of Washington
Page
TABLE OF AUTHORITIES | iii
PRELIMINARY STATEMENT | 1
STATEMENT OF FACTS | 4
A. The Transaction | 4
B. The FTC Challenge | 7
C. The Litigation Schedule | 9
D. IOSA and Its Motion | 10
ARGUMENT | 12
I. IOSA DOES NOT SATISFY THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT UNDER RULE 24(a)(2) | 12
A. Legal Standard for Intervention as of Right | 12
B. IOSA's Motion Is Untimely | 14
C. IOSA Lacks a Legally Cognizable Interest Sufficient for Intervention as of Right | 18
D. IOSA's Interests Are Adequately Represented by the FTC | 21
E. Disposition of This Action Will Not Impair IOSA's Ability to Protect Its Interests | 26
II. THE COURT SHOULD DENY PERMISSIVE INTERVENTION UNDER RULE 24(b) | 28
A. Legal Standard for Permissive Intervention | 28
B. Intervention Would Cause Undue Delay and Prejudice to Defendants | 29
C. IOSA's Participation Would Not Meaningfully Assist the Court | 33
III. ALTERNATIVELY, IF THE COURT IS INCLINED TO PERMIT ANY PARTICIPATION, IT SHOULD BE LIMITED TO AMICUS CURIAE STATUS | 35
CONCLUSION | 38
CERTIFICATE OF SERVICE | 40
PROPOSED ORDER | 41
Page(s)
Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003) | 13, 22, 23
Callahan v. Brookdale Senior Living Communities, Inc., 863 F.3d 1110 (9th Cir. 2017) | 13, 14
Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893 (9th Cir. 2011) | 13, 22
County of Fresno v. Andrus, 622 F.2d 436 (9th Cir. 1980) | 19
Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) | 13, 19
FTC v. Tarrant Holdings, 549 F.2d 289 (4th Cir. 1977) | 23, 34
FTC v. Dean Foods Co., 384 U.S. 597 (1966) | 27
FTC v. H.J. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001) | 7, 27
FTC v. Ostrander & Co., No. 23-cv-00076 (S.D. Cal. 2023) | 24, 34
FTC v. Adriatic Enterprises, Inc., No. 22-cv-05765 (N.D. Cal. 2023) | 24, 34
FTC v. Kestrel Partners LLC, 681 F. Supp. 3d 1069 (N.D. Cal. 2023) | 24, 27, 34
FTC v. Staples, Inc., 190 F. Supp. 3d 100 (D.D.C. 2016) | 24, 34
FTC v. Sysco Corp., 113 F. Supp. 3d 1 (D.D.C. 2015) | 27, 34
FTC v. Tronox Holdings PLC, 332 F. Supp. 3d 187 (D.D.C. 2018) | 24, 34
Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) | 36
League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997) | 14, 15
Nken v. Holder, 556 U.S. 418 (2009) | 15
Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) | 13, 22
Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009) | 13, 19
Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) | 19, 26
Smith v. Los Angeles Unified School District, 830 F.3d 843 (9th Cir. 2016) | 14, 15, 16
Southwest Center for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) | 13, 26
Trbovich v. United Mine Workers, 404 U.S. 528 (1972) | 22
United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) | 22, 23
Wilderness Soc'y v. U.S. Forest Service, 630 F.3d 1173 (9th Cir. 2011) | 13, 14
Page(s)
15 U.S.C. § 18 (Clayton Act § 7) | 1, 7, 8
15 U.S.C. § 18a (Hart-Scott-Rodino Antitrust Improvements Act of 1976) | 7
15 U.S.C. § 45 (FTC Act § 5) | 23
15 U.S.C. § 53(b) (FTC Act § 13(b)) | 1, 7, 27, 28
Fed. R. Civ. P. 24(a)(2) | passim
Fed. R. Civ. P. 24(b)(1)(B) | 28, 29
Fed. R. Civ. P. 24(b)(3) | 28, 29
Page(s)
7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1908 (3d ed. 2024) | 13, 28
U.S. Dep't of Justice & Fed. Trade Comm'n, 2023 Merger Guidelines | 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION

FEDERAL TRADE COMMISSION,

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

STATEMENT OF FACTS

ARGUMENT

CONCLUSION

CALDERWOOD & HARKNESS LLP

JOINED BY:

WHITFIELD, GREER & TANAKA LLP

CERTIFICATE OF SERVICE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION

FEDERAL TRADE COMMISSION,

IT IS SO ORDERED.

Record

Parties

Dates

Amounts