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Proposed Findings of Fact and Conclusions of Law of Plaintiffs

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Proposed Findings of Fact and Conclusions of Law of Plaintiffs Case 1:15-cv-02115-EGS Document 444 Filed 04/20/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FEDERAL TRADE COMMISSION, et al., Plaintiffs, v. Civil Action No. 1:15-cv-02115-EGS STAPLES, INC. and OFFICE DEPOT, INC., Defendants. NOTICE OF FILING REDACTED DOCUMENT Plaintiffs hereby provide notice of the filing of the redacted version of Plaintiffs’ Proposed Findings of Fact and Conclusions of Law. Dated: April 20, 2016 By: /s/ Tara Reinhart Tara Reinhart (D.C. Bar No. 462106) Charles A. Loughlin (D.C. Bar No. 448219) Bureau of Competition Federal Trade Commission 400 Seventh Street, S.W. Washington, D.C. 20024 Attorneys for Plaintiff Federal Trade Commission Case 1:15-cv-02115-EGS Document 444-1 Filed 04/20/16 Page 1 of 106 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FEDERAL TRADE COMMISSION, et al., Plaintiffs, Civil Action No. 15-cv-2115-EGS v. PUBLIC VERSION STAPLES, INC. and OFFICE DEPOT, INC., Defendants. PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Case 1:15-cv-02115-EGS Document 444-1 Filed 04/20/16 Page 2 of 106 TABLE OF CONTENTS PLAINTIFFS’ PROPOSED FINDINGS OF FACT I. The Relevant Market Is the Sale and Distribution of Consumable Office Supplies to Large B-to-B Customers in the United States. ........................................................................1 A. The Relevant Market Is Properly Defined as the Sale and Distribution of Consumable Office Supplies to Large B-to-B Customers in the United States. ..............1 B. The Evidence Confirms that Consumable Office Supplies Is an Appropriate Cluster Market. .................................................................................................................6 1. Ink and Toner Are Subject to Distinct Competitive Conditions. ................................6 2. Other Adjacency Products Are Subject to Distinct Competitive Conditions. ............9 C. The Evidence Shows that Large B-to-B Customers Are Distinct. ..................................11 1. Competition for Large B-to-B Customers Often Occurs Through Formal or Informal Bidding Processes. .....................................................................................11 2. Large B-to-B Customers Have Distinct and Individualized Pricing. .......................13 3. Large B-to-B Customers Have Distinct Requirements and Needs. ..........................14 (a) Defendants Segment Their Customers in the Ordinary Course of Business. .............................................................................................................15 (b) Distinct Requirements and Needs of Large B-to-B Customers. .........................17 II. Extraordinarily High Market Concentration Levels Establish a Strong Presumption of Harm to Competition in the Relevant Market. .................................................................24 A. The Proposed Merger Is Presumptively Illegal in the Relevant Market. ........................24 B. Ordinary Course Materials Confirm Defendants’ High Shares in the Relevant Market. ............................................................................................................................26 III. The Evidence Shows that the Merger Would Substantially Lessen Competition in the Relevant Market. .............................................................................................................27 A. Dr. Shapiro’s Analyses Show that the Merger Will Likely Result in Harm. ..................27 B. The Evidence Confirms That Defendants Are Each Other’s Closest Competitor. .........29 1. Defendants’ Evidence Confirms That Staples and Office Depot Are Each Other’s Closest Competitor for Large B-to-B Customers. .......................................29 2. Large B-to-B Customers View Staples and Office Depot as Their Best Options. .....................................................................................................................32 C. Large B-to-B Customers Benefit from Head-to-Head Competition Between Defendants. .....................................................................................................................33 D. Defendants Acknowledge the Merger Will Substantially Lessen Competition in the Relevant Market. .......................................................................................................38 E. Other Consumable Office Supplies Vendors Are Inferior Options for Large B- to-B Customers. ..............................................................................................................39 1. W.B. Mason Cannot Constrain a Post-Merger Staples. ............................................39 i Case 1:15-cv-02115-EGS Document 444-1 Filed 04/20/16 Page 3 of 106 2. Other Regional and Local Office Supplies Vendors Are Inferior Options for Large B-to-B Customers. ..........................................................................................41 (a) Regional Office Supplies Vendors Do Not Compete for Large B-to-B Customers Today. ...............................................................................................41 (b) Regional Office Supplies Vendors Are at a Competitive Disadvantage Compared to Defendants.....................................................................................42 3. Ad Hoc Networks and Consortia of Local and Regional Distributors Are Inferior Options for Large B-to-B Customers. .........................................................45 4. Tier 1 Diversity Vendors Are Not Independent Competitors and—on Their Own—Are Inferior Options for Large B-to-B Customers. .......................................47 5. Purchasing Directly from Manufacturers Is an Unworkable Option for Large B-to-B Customers. ....................................................................................................48 IV. Defendants Have Failed to Rebut the Strong Presumption of Harm to Competition in the Relevant Market. .........................................................................................................49 A. Entry by Amazon Business Would Not Be Timely, Likely, or Sufficient. ....................49 1. Amazon Business’s Model Is at Odds with Requirements of Large B-to-B Customers. ................................................................................................................49 2. Amazon Business Does Not Serve Large B-to-B Customers Today. .......................51 3. Amazon Business Is Not Poised to Serve the Consumable Office Supplies Needs of Large B-to-B Customers for the Foreseeable Future. ................................54 B. Entry, Expansion, or Repositioning by Other Firms Would Not Be Timely, Likely, or Sufficient. .......................................................................................................59 1. Regional Distributors ................................................................................................59 2. Adjacency Products Vendors and Manufacturers .....................................................60 C. Other Purported Constraints on Defendants’ Competitive Conduct Are Misleading and Insufficient to Rebut the Strong Presumption of Harm. .......................61 1. Purported “Leakage” or “Off-Contract Spend” Does Not Constrain Prices Today and Would Not Constrain Prices Post-Merger. .............................................61 2. Any “Tools” Available to Large B-to-B Customers Are Insufficient to Constrain the Post-Merger Exercise of Market Power. ............................................65 D. The 2013 Investigation of the Office Depot/OfficeMax Merger Found that Staples Was the Closest Competitor to Both Office Depot and OfficeMax. ..................67 E. Defendants Have Not Asserted Any Cognizable Efficiencies. .......................................68 1. Defendants Failed to Establish That Claimed Efficiencies Are Verifiable. .............69 2. Defendants Failed to Establish That Claimed Efficiencies Are Merger- Specific. ....................................................................................................................70 3. Defendants Failed to Establish That Any Efficiencies Will Be Passed Through to Customers...............................................................................................70 F. The Proposed Assignment of Contracts to Essendant Does Not Address the Merger’s Competitive Harm. ..........................................................................................71 ii Case 1:15-cv-02115-EGS Document 444-1 Filed 04/20/16 Page 4 of 106 TABLE OF CONTENTS PLAINTIFFS’ PROPOSED CONCLUSIONS OF LAW I. The Court Has Jurisdiction Over This Action. ................................................................. 75 II. The Standard for a Preliminary Injunction Is Met Here. .................................................. 75 III. Plaintiffs Have Shown a Likelihood of Success on the Merits. ........................................ 76 A. The Relevant Market Is The Sale And Distribution Of Consumable Office Supplies To Large B-to-B Customers In The United States. ..........................................78 1. Product Market Definition Principles. ...................................................................78 2. The Sale And Distribution Of Consumable Office Supplies To Large B- to-B Customers Is The Relevant Product Market. .................................................80 3. Defendants’ Criticisms Of The Relevant Market Are Wrong As A Matter Of Law. ..................................................................................................................82
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