IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

TAPESTRY, INC.,
Civil Action No. 1:24-cv-03109 (JLR)
and
FILED UNDER SEAL
CAPRI HOLDINGS LIMITED,

Defendants.

DEFENDANTS TAPESTRY, INC. & CAPRI HOLDINGS LIMITED’S

OPPOSITION TO THE FEDERAL TRADE COMMISSION’S MOTION
FOR PRELIMINARY INJUNCTION
 TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

STATEMENT OF FACTS ..............................................................................................................4

A. Consumers Face Handbag Choices Everywhere They Turn And They

Have Hundreds Of Choices In A Highly Competitive Marketplace .......................4

B. Tapestry Is Acquiring Capri Because It Sees Opportunity In All Three

Brands, Including Michael Kors, Which It Plans to Revitalize To Benefit
Consumers..............................................................................................................11

LEGAL STANDARDS .................................................................................................................12

ARGUMENT .................................................................................................................................15

I. PLAINTIFF CANNOT CARRY ITS PRIMA FACIE BURDEN AS TO ITS

PROFFERED MARKETS .................................................................................................16

A. Plaintiff’s “Accessible Luxury Handbag” Market Is Not Supported By The

Evidence Or A Proper Application Of The Hypothetical Monopolist Test...........16

1. The Brown Shoe Factors Do Not Support Plaintiff’s Decision to

Limit Its Market To Handbags That Are “Accessible Luxury” .................21

2. Dr. Smith’s Economic Analyses In Defense Of Plaintiff’s Case

Should Receive No Weight Because Of Incurable Flaws In His
Analyses .....................................................................................................28

B. Plaintiff Cannot Evade Market Definition Claiming The Transaction

Eliminates Head-to-Head Competition ..................................................................32

II. DEFENDANTS WILL SHOW THAT PLAINTIFF’S PRIMA FACIE CASE

INACCURATELY PREDICTS THE MERGER’S ANTICOMPETITIVE
EFFECTS ...........................................................................................................................33

A. Plaintiff’s Shares Overstate The Transaction’s Likely Competitive Effects

Because Entry, Expansion and Repositioning Are Likely .....................................34

B. Tapestry’s Emphasis On Brand Autonomy Will Ensure Competition

Among Coach, Kate Spade, And Michael Kors Continues ...................................36

C. The Transaction Rationale Is Procompetitive: Tapestry Intends To

Improve Demand For Michael Kors Handbags And Drive Increased Sales .........37

2
III. PLAINTIFF CANNOT CARRY ITS BURDEN TO SHOW THE
TRANSACTION WILL HAVE SUBSTANTIAL ANTICOMPETITIVE
EFFECTS IN ITS RELEVANT MARKETS ....................................................................38

IV. PLAINTIFF FAILS TO SHOW A BALANCE OF EQUITIES IN ITS FAVOR .............39

3
 TABLE OF AUTHORITIES

Page(s)

CASES

Axon Enter., Inc. v. FTC,

598 U.S. 175 (2023) .................................................................................................................15

Beatrice Foods Co. v. FTC,

540 F.2d 303 (7th Cir. 1976) ...................................................................................................27

Brown Shoe Co. v. United States,

370 U.S. 294 (1962) .....................................................................................................17, 21, 27

Chi. Bridge & Iron Co. N.V. v. FTC,

534 F.3d 410 (5th Cir. 2008) ...................................................................................................34

City of New York v. Grp. Health Inc.,

649 F.3d 151 (2d Cir. 2011).....................................................................................................17

FTC v. Arch Coal,

329 F. Supp. 2d 109 (D.D.C. 2004) ................................................................................. passim

FTC v. Elders Grain, Inc.,

868 F.2d 901 (7th Cir. 1989) ...................................................................................................15

FTC v. Freeman Hosp.,

69 F.3d 260 (8th Cir. 1985) .....................................................................................................32

FTC v. H.J. Heinz Co.,

246 F.3d 708 (D.C. Cir. 2001) .................................................................................................40

FTC v. IQVIA Holdings, Inc.,

No. 23 CIV. 06188, 2023 WL 7152577 (S.D.N.Y. Oct. 31, 2023) ...................................13, 33

FTC v. Lancaster Colony Corp.,

434 F. Supp. 1088 (S.D.N.Y. 1977).............................................................................14, 15, 28

FTC v. Meta Platforms, Inc.,

No. 5:22-cv-04325 (N.D. Cal. Oct. 31, 2022), ECF No. 164 ..................................................40

FTC v. Sysco Corp.,

113 F. Supp. 3d 1 (D.D.C. 2015) .................................................................................24, 33, 39

FTC v. Thomas Jefferson University,

505 F. Supp. 3d 522 (E.D. Pa. 2020) ...........................................................................31, 32, 33
FTC v. Warner Commc’ns Inc.,
742 F.2d 1156 (9th Cir. 1984) .................................................................................................15

FTC v. Weyerhaeuser Co.,

665 F.2d 1072 (D.C. Cir. 1981) ...............................................................................................39

Geneva Pharm. Tech. v. Barr Labs., Inc.,

386 F.3d 485 (2d Cir. 2004).....................................................................................................28

In re Super Premium Ice Cream Litig.,

691 F. Supp. 1262 (N.D. Cal. 1988), aff’d sub nom. Haagen-Dazs Co. v.
Double Rainbow Gourmet Ice Creams, Inc., 895 F.2d 1417, 1990 WL 12148
(9th Cir. 1990)..........................................................................................................................27

Int’l Shoe Co. v. FTC,

280 U.S. 291 (1930) ...........................................................................................................12, 38

JBL Enterprises v. Jhirmack Enterprises, Inc.,

509 F. Supp. 357 (N.D. Cal. 1981) ..........................................................................................27

Murrow Furniture Galleries, Inc. v. Thomasville Furniture Indus., Inc.,

889 F.2d 524 (4th Cir. 1989) ...................................................................................................27

New York v. Deutsche Telekom,

439 F. Supp. 3d 179 (S.D.N.Y. 2020)......................................................................................15

Olin Corp. v. FTC,

986 F.2d 1295 (9th Cir. 1993) .................................................................................................33

Reynolds Metals Co. v. F.T.C.,

309 F .2d 223 (D.C. Cir. 1962) ................................................................................................28

Riegel v. Medtronic, Inc.,

451 F.3d 104 (2d Cir. 2006).....................................................................................................18

Ron Tonkin Grand Turismo v. Fiat,

637 F.2d 1376 (9th Cir. 1981) .................................................................................................27

Starbucks Corp. v. McKinney,

144 S. Ct. 1570 (2024) .............................................................................................................14

United States v Bazaarvoice, Inc.,

No. 13-133-WHO, 2014 WL 203966 (N.D. Cal. Jan. 8, 2014) ...............................................39

United States v. Baker Hughes Inc.,

908 F.2d 981 (D.C. Cir. 1990) ......................................................................................... passim

2
United States v. Booz Allen Hamilton Inc.,
No. CV CCB-22-1603, 2022 WL 9976035 (D. Md. Oct. 17, 2022) .......................................20

United States v. E.I. du Pont de Nemours Co.,

353 U.S. 586 (1957) .................................................................................................................32

United States v. Gen. Dynamics Corp.,

415 U.S. 486 (1974) .................................................................................................................37

United States v. Gillette Co.,

828 F. Supp. 78 (D.D.C. 1993) ................................................................................................20

United States v. H&R Block, Inc.,

833 F. Supp. 2d 36 (D.D.C. 2011) .....................................................................................30, 31

United States v. Jos. Schlitz Brewing Co.,

253 F. Supp. 129 (N.D. Cal. 1966), aff’d, 385 U.S. 37 (1967) ................................................27

United States v. Mfrs. Hanover Trust Co.,

240 F. Supp. 867 (S.D.N.Y. 1965) ..........................................................................................33

United States v. Oracle Corp.,

331 F. Supp.2d 1098 (N.D. Cal. 2004) ..............................................................................17, 28

United States v. Sabre Corp.,

452 F.Supp.3d 97 (D. Del. 2020) .............................................................................................38

United States v. Siemens Corp.,

621 F.2d 499 (2d Cir. 1980).....................................................................................................40

United States v. U.S. Sugar Corp.,

No. CV 21-1644 (MN), 2022 WL 4544025 (D. Del. Sept. 28, 2022), aff'd, 73
F.4th 197 (3d Cir. 2023) ..........................................................................................................20

United States v. Waste Mgmt., Inc.,

743 F.2d 976 (2d Cir. 1984).....................................................................................................34

Winter v. NRDC,
555 U.S. 7 (2008) .....................................................................................................................13

Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC,

571 F.3d 206 (2d Cir. 2009).....................................................................................................18

STATUTES

15 U.S.C. § 18 ................................................................................................................................12

15 U.S.C. § 53(b) ...............................................................................................................13, 14, 15

3
 TREATISES

11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.3
(3d ed. 2013) ............................................................................................................................14

OTHER AUTHORITIES

H.R. Rep. No. 624, 93d Cong., 1st Sess. 31 (1973).................................................................13, 14

4
 INTRODUCTION
Plaintiff Federal Trade Commission’s case is devoid of any focus on what matters most in

an antitrust case: the options available to the consumer. That is a problem because merger analysis

is supposed to examine how a proposed transaction will change consumer choice and whether it

will leave consumers without reasonable alternatives, forcing them to pay higher prices. Plaintiff

and its economic expert have built their case on theories and models that are completely divorced

from the marketplace realities and that have nothing to do with the consumer. In Plaintiff’s

alternate universe, after the transaction closes, consumers shopping for a Michael Kors handbag

priced at $295 will have to pay at least $383.50 because Tapestry will be able to jack up prices by

as much as 30%, and consumers will be stuck paying that price. Why? Because, they say, the

hundreds of handbag brands available online, in malls, at department stores, and the thousands of

preowned bags splayed across the internet at all price points are not alternatives.

The evidence will show that there is no handbag at any price remotely relevant to this case

where consumers do not have dozens and dozens—if not hundreds—of substitutes available to

them. If a brand seeks to raise price without raising value in the eyes of consumers, consumers

will “defeat” that price increase by simply turning to one of those hundreds of choices available to

them. This is how the real world operates. If the market operated the way Plaintiff posits, third

parties would be up in arms expressing concerns that the transaction will harm them. But, over

the last three months, Defendants obtained documents and data from 120 third parties and took 15

third-party depositions, and unlike in the government’s typical merger challenge, not a single third

party expressed concern that the transaction will harm consumers. Not a single consumer. Not a

single wholesaler. Not even a single handbag competitor. The only people who have expressed a

view that this transaction is problematic are Plaintiff and its expert.
 For these reasons and others, Plaintiff cannot carry its burden under the well-established

burden-shifting standard set forth in United States v. Baker Hughes Inc., 908 F.2d 981 (D.C. Cir.

1990). Plaintiff cannot meet its prima facie burden to establish a relevant antitrust market and that

the transaction will result in undue concentration in that market. Remarkably, after analyzing this

transaction for a year, Plaintiff’s lawyers and economist still cannot even agree on what that the

relevant market is. Plaintiff’s complaint and pre-trial brief purport to define an “accessible luxury”

market for handbags based on certain Brown Shoe “practical indicia” factors, including supposedly

“distinct price points” in the range of $100-$1,000 (even though the majority of Kate Spade and

Michael Kors handbags actually sell for less than $100), distinct customers (even though the

documents Plaintiff relies upon show that customers at all incomes buy so-called “accessible

luxury” bags, “luxury” handbags, and “mass market” handbags), and distinct production facilities

(even though the evidence establishes that “accessible luxury brands” and “luxury” brands often

manufacture in the same locations, and sometimes side-by-side). Plaintiff does not limit its market

on the basis of data sources, sales channels, or to new bags.

The analysis put forth by Plaintiff’s economist, Dr. Loren Smith, could not be more

different. In his view, the market is defined not by what consumers demand, but instead hinges

on whether a handbag is identified in a third-party subscription data source, NPD, as being a

“bridge” or “contemporary” brand, without regard to price. Dr. Smith never tested whether the

brands in the categories contained in that third-party list satisfy the Brown Shoe factors Plaintiff

relied upon in proposing its “accessible luxury” market. Instead, he baldly uses those categories

as a proxy for “accessible luxury” even though he has no idea how NPD arrived at its

classifications. He also ignores that NPD only includes brands sold through one of the limited

number of wholesalers it tracks, and only includes new bags. If NPD defines a brand as “bridge”

2
or “contemporary,” Dr. Smith declares its bags as “accessible luxury handbags,” regardless of

where the bag is made, how much it costs, what it is made of, what it looks like, whether it is

sold at discount, who its customers are, or how consumers perceive the bag. Dr. Smith ignores

the voluminous third-party data, documents, and testimony that contradict his view of who

competes: he delegates that choice to the NPD user guide and considers that task complete.

Dr. Smith then compounds those errors by purporting to validate his “accessible luxury

handbag” market through a striking misapplication of an economic tool known as the Hypothetical

Monopolist Test, or HMT. Dr. Smith builds his HMT on diversion ratios. Diversion ratios, he

admits, are supposed to estimate the percentage of customers that would switch from one brand to

another in the event of a price increase. But that is not how Dr. Smith built his diversion ratios.

Instead, Dr. Smith relied on two old Tapestry surveys,

. As

discussed below, the law is clear that where surveys do not ask the necessary questions to get at

consumer responses to price changes, they cannot be used to generate reliable diversion ratios.

Neither Plaintiff nor its expert commissioned such surveys. This fundamental flaw in Dr. Smith’s

analysis leads to implausible results and is not a methodology that can reliably predict likely harm.

Against the backdrop of these deficiencies, Plaintiff offers an alternative approach to

satisfy its threshold burden that is completely outside the established law. Plaintiff claims that this

Court should be the first ever to hold that Plaintiff can meet its threshold burden without defining

a relevant market, simply by showing the elimination of head-to-head competition between close

competitors. This Court should reject Plaintiff’s invitation to ignore Supreme Court precedent.

If a plaintiff establishes its prima facie case, the second prong of the Baker Hughes

framework looks at whether the plaintiff’s prima facie case “inaccurately predicts the transaction’s

3
probable effect on competition.” Here, Plaintiff’s improperly derived market shares inaccurately

predict the transaction’s effect on future competition. Handbag competitors and industry experts

will testify that entry barriers are low, new competitors routinely enter and succeed, and many

incumbents have plans to expand or reposition. At the same time, Michael Kors handbag sales

have fallen, and there is no proof to suggest that its share today is indicative of what it will be

tomorrow. In recent years, the Michael Kors brand has lost its luster. Tapestry’s turnaround plans

will enhance the Michael Kors’ brand’s value and provide consumers a procompetitive benefit.

After Plaintiff’s prima facie case is rebutted, under the third prong of the Baker Hughes

analysis, Plaintiff bears the burden to demonstrate that the transaction is likely to substantially

reduce competition in its relevant market. Plaintiff’s pre-trial brief says nothing on this point, and

Dr. Smith does nothing to aid the cause. Assuming that Coach and Kate Spade are the primary

constraints on Michael Kors pricing today, Dr. Smith projects that once Tapestry closes the deal,

it can automatically impose a price increase of as much as 30% (or more) on Michael Kors

handbags. That is a fantasy. Michael Kors has lost share not because of Tapestry, but because of

the intense competition that permeates the industry. Dr. Smith’s dependence on the same faulty

analysis that drives his HMT fails to carry Plaintiff’s burden to show anticompetitive effects.

Plaintiff cannot carry its burden of proof and the Court should deny Plaintiff’s request for

a preliminary injunction.

STATEMENT OF FACTS

A. Consumers Face Handbag Choices Everywhere They Turn And They Have
Hundreds Of Choices In A Highly Competitive Marketplace

This case turns on how consumers choose and buy handbags, and the choices available to

them. A persistent theme in Plaintiff’s case is that Coach, Kate Spade, and Michael Kors are “close

competitors.” What Plaintiff appears to really be saying is that, from Plaintiff’s standpoint, the

4
brands have similar sales channels, including footprints at outlets, brand longevity, and, as two

public company competitors, have tracked each other’s sales and data to report to their boards and

investors. This focuses on the wrong question since it does not focus on consumers and consumer

substitution occurring today and beyond. The consumer perspective is exemplified by what

consumers see online, when visiting a mall, or visiting a Dillard’s, Macy’s, or other retail store.

Today, consumers across the U.S. can purchase handbags from hundreds of different brands.1

First, consumers looking for a handbag can search online from their couch. Even if they

are not actively searching, handbags may appear as advertisements on other websites they view,

like Facebook, Instagram, TikTok, Google, and so on. Once online, prospective purchasers can

buy handbags from brands’ direct-to-consumer (“DTC”) e-commerce websites, from brands’

online outlet stores, from department stores online, from other online retailers like Amazon or Rue

La La, or from online resale sellers like Poshmark and The RealReal.2

Second, consumers have myriad brick and mortar store options from multi-brand retailers

like Dillard’s and Nordstrom to single-brand retailers like Madewell and Cole Haan. While the

specific brands and stores names may differ, this highly competitive landscape for the supply of

handbags exists across the United States. And if the consumers are unsatisfied with their options—

or want to do a simple price check—they can look at their phone while in the store to see if a

handbag is available cheaper somewhere else or what the competition offers as an alternative.

The numerous shopping channels available to consumers are dwarfed only by the

thousands of handbag designs and styles available for sale from many hundreds of brands with

1
After investigating this transaction for nearly nine months, Plaintiff alleges national geographic
market which Defendants accept for purposes of analysis.
2
Ex. 1, Giberson Rep. ¶¶ 20-21. Since 2005, industry expert Giberson has been the President of
the Accessories Council, a trade organization for fashion accessories (including handbags) with
over 350 members.
5
offerings at every potential price point.3 Even after Dr. Smith artificially limits competitive

options to the NPD “bridge” and “contemporary” categories, he still is left admitting 238 brands

compete with the merging parties.4 There are hundreds more competitors, including brands that

NPD doesn’t track (such as trendy brands like Lululemon, Telfar, and Cuyana) and brands that

NPD puts in the “better,” “moderate,” and “designer” buckets.

3
Ex. 1, Giberson Rep. ¶ 17-18. See generally Ex. 2, Giberson Rep., App. C.
4
See Ex. 3, Smith Rep. 22, fn. 75; Ex. 4, DX-503 (134 brands in NPD “bridge”); Ex. 5, DX-504
(89 brands in NPD “contemporary”).
5

6
 9

10

11

12

13

Indeed, Plaintiff’s revisionist attempt to describe who competes in the “accessible luxury”

category defies common sense because it excludes competitors who are priced just below and

above Defendants’ handbags, and even brands priced the same. As Defendants’ economic expert,

Dr. Fiona Scott Morton, will testify (and Dr. Smith was forced to admit),14 the majority of Michael

10

11

12

13
Ex. 17, Gennette Rep. ¶ 26 (Macy’s
grouped brands by customer “Lifestyles”). Jeff Gennette has spent over 40 years in the retail
fashion business and recently retired as President, CEO, and Chairman of Macy’s in early 2024.
14
Dr. Fiona Scott Morton is a Professor of Economics at the Yale School of Management,
where she has been on the faculty since 1999. Dr. Scott Morton previously served as the Deputy
Assistant Attorney General for Economic Analysis (Chief Economist) at the Antitrust Division
of the U.S. Department of Justice in 2011-2012.
7
Kors and Kate Spade handbags sell for . Thus, if the price of a Michael Kors

handbag was suddenly increased 30% (say from $95 to $123.50), consumers could choose a

handbag from , or one of many

other brands that Plaintiff and Dr. Smith pejoratively label “mass market” because many of their

handbags sell for .15 Because these sellers are all labeled as “better” or “moderate”

by NPD (or not tracked at all), Dr. Smith excludes them from his analysis. None of Dr. Smith’s

market shares consider these options available to consumers who previously bought a $95 Michael

Kors handbag. Tapestry documents reflect this broad and intense competition.16

17
Plaintiff and Dr. Smith ignore them

because NPD does not label them “bridge” or “contemporary.”

Defendants’ handbags also compete with higher priced bags, including those sold by

European fashion house brands like Louis Vuitton, Prada, Chanel, Gucci, and Burberry. Again,

although Plaintiff fails to mention it, the Kantar survey data that Dr. Smith relies upon shows that

buyers of Coach handbags also considered buying handbags from Prada and Burberry. 18

15

16

17

18
Ex. 23, Scott Morton Rep. ¶ 282.
8
 19
Dr. Smith’s decision to rely solely on NPD’s bridge and

contemporary buckets means that his market shares ignore this competition.

New brands are emerging every day.20 Examples of new brands over just the past few

years include Telfar, Brandon Blackwood, Senreve, Staud, Veronica Beard, Kurt Geiger, and

Lululemon. New handbag companies can readily access third-party manufacturing, marketing,

and distribution.

”21 For contract manufacturing, there are factories all over the world with

different capabilities available to work with new handbag companies, including Tivoli, in Italy and

Incas International in India.22 There are also companies that help new entrants with “end-to-end”

management services, covering everything from design to delivery.23

New handbag entrants do not need a brick and mortar store presence to succeed because

they can grow sales through wholesale, online, and DTC channels.24
25

26

19

20
For example, a Vogue article from February 2023 catalogued 17 new and emerging brands with
price points under $1000 including Anine Bing, Savette, Hereu, Aesther Ekme, By Far, Staud and
others. Ex. 25, Laura Jackson, “These 20 Contemporary Brands are Defining the New Era of It
Bags,” Vogue, February 2, 2023, available at https://www.vogue.com/article/emerging-handbag-
brands.
21

22
Ex. 1, Giberson Rep. ¶¶ 87-89.
23
Ex. 1, Giberson Rep. ¶ 94.
24
Ex. 17, Gennette Rep. ¶¶ 38-40, 54-56; Ex. 1, Giberson Rep. ¶¶ 97-99;

25

26

9
 27

On the flipside, companies focused on apparel—like Lululemon—can enter into handbags

and succeed.

.28

In an industry characterized by hundreds of competing brands and easy entry, suppliers

must constantly innovate to stay relevant and top of mind for consumers. With so many options,

consumers are focused on value and will not pay more for a Coach, Kate Spade, Michael Kors, or

any other brand handbag without seeing a corresponding increase in the value of the handbag. 29

30
Industry experts Giberson and Gennette agree.31 This

view is also shared by Defendants.

.32

27

28

29
See Ex. 1, Giberson Rep. ¶¶ 76-77.
30

31
Ex. 1, Giberson Rep. ¶¶ 76-103; Ex. 17, Gennette Rep. ¶¶ 60-87.
32

10
 .33

34

This evidence proves that this industry is the opposite of those normally the focus of

government merger challenges. First, this case involves fashion where consumer preferences and

trends rule. Second, the fashion industry involves discretionary purchases since most women

already own more than one handbag—not a food staple needed to feed a family. Third, successful

merger challenges involve highly-concentrated markets—they do not feature hundreds of

competitors selling similar products that consumers could turn to in the event of a price increases.

B. Tapestry Is Acquiring Capri Because It Sees Opportunity In All Three

Brands, Including Michael Kors, Which It Plans To Revitalize

This transaction has never been about eliminating a competitor. Tapestry is acquiring three

iconic brands in Versace, Jimmy Choo, and Michael Kors so that it can bring its expertise in

consumer engagement, data analytics, and marketing to them, while broadening the Tapestry

portfolio, all to reach more consumers, more effectively, with products consumers want. The

entire purpose of the deal is to drive more sales and, in antitrust parlance, increase output. Any

suggestion to the contrary is without evidence, ignores all the testimony, and is a red herring.

As to Michael Kors specifically, the brand has faced decline. Its sales peaked around 2015

and 2016 and have been going backwards ever since. The brand’s decline has resulted in an

overreliance on discounting.

33

34

11
 .35 Michael Kors has not been

delivering what consumers want, which means even as Michael Kors has attempted to increase

handbag prices, this has only resulted in the brand having to raise discounts even more to sell its

product.36 37

38
In short, Tapestry will help customers see the value of a Michael Kors handbag.

Tapestry previously revived the Coach brand by paying close attention to consumer characteristics

and the emotions associated with the handbag purchases and will apply this same type of process

and investment to Michael Kors.39 The transaction will increase demand for Capri’s products,

expand sales, and ultimately deliver the Capri brands, including Michael Kors, to more consumers.

It is a procompetitive deal intended to create competition and benefit consumers.

LEGAL STANDARDS

Section 7 of the Clayton Act. Section 7 of the Clayton Act is the substantive law that

governs this case. 15 U.S.C. § 18. Ultimately the FTC must prove a violation of Section 7 to

prevent Tapestry from owning Capri. Section 7 only prohibits transactions if “the effect of such

acquisition may be substantially to lessen competition.” 15 U.S.C. § 18; Int’l Shoe Co. v. FTC,

35

36
Ex. 23, Scott Morton Rep., Exhibit 16.
37

38

39
Ex. 23, Scott Morton Rep. ¶ 298.
12
280 U.S. 291, 298 (1930) (“some lessening of competition, is not forbidden”). Plaintiff must prove

“that the substantial lessening of competition will be ‘sufficiently probable and imminent’ to

warrant relief.” FTC v. Arch Coal, 329 F. Supp. 2d 109, 115 (D.D.C. 2004) (citations omitted).

Section 13(b) of the Federal Trade Commission Act. “A preliminary injunction is an

extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). Section

13(b) of the FTC Act, 15 U.S.C. § 53(b), governs Plaintiff’s ability to seek a preliminary injunction

here. Congress gave only federal district courts, not the FTC, the power to enjoin a deal, with the

expectation that the courts would “exercise independent judgment” before granting relief. H.R.

Rep. No. 624, 93d Cong., 1st Sess. 31 (1973). Section 13(b) allows a court to grant the FTC a

preliminary injunction only if the court finds the FTC has a “likelihood of ultimate success” in

proving a Section 7 violation and after “weighing the equities.” 15 U.S.C. § 53(b).

As in most Section 13(b) cases, a principal debate for this trial is whether Plaintiff will be

able to meet its burden to show it has a “likelihood of ultimate success” in proving Tapestry’s

acquisition of Capri violates Section 7. Because the real-world facts are not on its side, from the

start of this litigation, Plaintiff has repeatedly tried to water down the legal standard as much as

possible. Its brief does so in two ways, neither of which the law supports.

First, citing FTC v. IQVIA Holdings, Inc., No. 23 CIV. 06188, 2023 WL 7152577

(S.D.N.Y. Oct. 31, 2023), Plaintiff argues that when Congress wrote the words “likelihood of

ultimate success” it did not mean what it said. Instead, Plaintiff asks this Court to apply a standard

found nowhere in Section 13(b) and only require it to “raise[] serious questions about the antitrust

merits that warrant thorough investigation in the first instance by the FTC.”40 Pl. Mot. For PI at

40
It is understandable why IQVIA got offtrack on the standard. There is a dearth of authority on
the Section 13(b) standard in the Second Circuit—primarily just a single district court case from

13
7. That interpretation of Section 13(b) cannot be squared with the statute’s text, has not been

adopted by the Second Circuit, and is wrong under recent Supreme Court law. A few months ago

in Starbucks Corp. v. McKinney—a case Plaintiff neglects to cite—the Supreme Court confirmed

that absent a contrary “clear command from Congress” (which Section 13(b) does not supply), a

federal government agency must make a “clear showing” of a likelihood of success on the merits

to obtain a preliminary injunction. 144 S. Ct. 1570, 1575-76 (2024) (holding that the “likelihood

of success” standard means what it says and requires more than just showing that the agency’s

case poses a “substantial and not frivolous” question). That is plainly the case here: Section

13(b)’s text requires courts to assess Plaintiff “likelihood of ultimate success.” 15 U.S.C. § 53(b).

Contrary to Plaintiff’s assertion, to assess whether Plaintiff can make a clear showing that

it is likely to ultimately prevail in proving a Section 7 violation, the Court must consider “conflicts

in the evidence” and “undertake an extensive analysis of the antitrust issues.” Pl. Mot. for PI, at 8

(citation omitted). As Starbucks explains, before finding a likelihood of success, a district court

“must evaluate”—not ignore—“any factual conflicts or difficult questions of law.” 144 S. Ct. at

1578 (emphasis added). The existence of a factual conflict or a hard legal question ultimately

benefits Defendants, not Plaintiff, as it can “create sufficient doubt about the probability of [the

FTC’s] success” and “justify denying a preliminary injunction.” 11A C. Wright, A. Miller, & M.

Kane, Federal Practice and Procedure § 2948.3 (3d ed. 2013) (citing cases).

Second, Plaintiff next wrongly argues that its likelihood of “ultimate” success is measured

based on whether it will prevail in the FTC’s own in-house “administrative hearing,” rather than

the 1970s, FTC v. Lancaster Colony Corp., 434 F. Supp. 1088 (S.D.N.Y. 1977). Lancaster Colony
was one of the first courts in the country to construe Section 13(b). The “serious question” standard
Lancaster Colony invented is found nowhere in the statute’s text or its legislative history. See,
e.g., H.R. Rep. No. 624, 93d Cong., 1st Sess. 31 (1973). As discussed above, these cases are
inconsistent with Starbucks, which the Supreme Court issued after IQVIA.
14
on whether it will ultimately succeed on appeal from that process in an Article III court. Pl. Mot.

for PI, at 8. Section 13(b) requires an assessment of “ultimate success”—not “interim success”—

and it also states that the preliminary injunction should last until “such complaint is dismissed by

the Commission or set aside by the court on review.” 15 U.S.C. § 53(b) (emphasis added). Even

Plaintiff’s cited authorities peg the success inquiry to a favorable “determination by the FTC in

the first instance and ultimately by the Court of Appeals.” Lancaster, 434 F. Supp. at 1091

(emphasis added); see FTC v. Warner Commc’ns Inc., 742 F.2d 1156, 1162 (9th Cir. 1984) (same);

FTC v. Elders Grain, Inc., 868 F.2d 901, 903 (7th Cir. 1989) (“likelihood of success” contemplates

“a full administrative proceeding before the FTC, followed by judicial review . . . in one of the

courts of appeals”). No other approach makes sense when the FTC writes the rules and law that

apply in its administrative proceedings and serves as prosecutor, judge, and jury.41 To obtain a

preliminary injunction, Plaintiff must therefore prove that it is likely to succeed in convincing a

federal court of appeals that the transaction violates Section 7.

ARGUMENT

The determination of whether Plaintiff can establish that it is likely to succeed on the merits

of showing “that a substantial lessening of competition will be sufficiently probable and imminent

to warrant relief,” Arch Coal, 329 F. Supp. 2d at 115, operates through a three step burden-shifting

standard laid out in Baker Hughes, 908 F.2d 981; see also New York v. Deutsche Telekom, 439 F.

Supp. 3d 179, 206-07 (S.D.N.Y. 2020). Plaintiff bears the burden to establish a prima facie case

41
Proof of the need for judicial review is confirmed by the FTC’s track record: even though the
FTC has lost multiple times in federal court, the outcome of the administrative litigation process
is that the FTC always ultimately wins. See Axon Enter., Inc. v. FTC, 598 U.S. 175, 216 (2023)
(Gorsuch, J., concurring) (“some say the FTC has not lost an in-house proceeding in 25 years”).
This is hardly surprising: the FTC Commissioners who voted to sue to block the transaction in the
first place are the same decision-makers who determine if the deal is anticompetitive at the end of
the administrative process.
15
that (1) the merger is likely to result in substantial harm to competition in a relevant antitrust

market and (2) that the merger will result in “undue concentration” in a properly defined market.

Baker Hughes, 908 F.2d at 982-83. If Plaintiff fails to prove its prima facie case, its whole case

fails. Otherwise, the case proceeds to step two, where Defendants must show that Plaintiff’s

“prima facie case inaccurately predicts the relevant transaction’s probable effect on future

competition.” Id. at 991. If Defendants rebut Plaintiff’s prima facie case, under step three, the

burden shifts back to Plaintiff to prove that the merger will substantially lessen competition in its

relevant market. Id. at 983. The ultimate burden of persuasion always rests with Plaintiff. Id. 42

I. PLAINTIFF CANNOT CARRY ITS PRIMA FACIE BURDEN AS TO ITS

PROFFERED MARKETS

Plaintiff fails at the first prong because it cannot carry its burden to show that it is likely to

succeed in establishing relevant market under either of its two proffered theories. First, Plaintiff

contends the evidence supports its contrived “accessible luxury market.” Second, Plaintiff

claims—without citation to any precedent—that this Court does not need to find proof of any

relevant market because “eliminat[ing] of head-to-head competition between close competitors”

is enough to carry its prima facie burden. Pl. Mot. for PI at 23. The first argument fails for a lack

of proof, while the second argument fails as a matter of law. The Court should deny Plaintiff’s

motion because it cannot carry its burden as to market definition.

A. Plaintiff’s “Accessible Luxury Handbag” Market Is Not Supported By The

Evidence Or A Proper Application Of The Hypothetical Monopolist Test

Market definition is a “pragmatic” and “factual” exercise, “not a formal, legalistic one,”

which is designed to determine, from the consumers’ perspective, the “area of effective

42
The FTC is also unlikely to succeed because the FTC’s administrative proceeding itself is
unconstitutional in several respects, but Defendants will litigate those constitutional challenges in
a separate forum.
16
competition,” consistent with “the commercial realities of the industry.” Brown Shoe Co. v. United

States, 370 U.S. 294, 324, 336 (1962). In a case like this one, where Plaintiff alleges consumer

harm, “[t]he relevant market must be defined as all products reasonably interchangeable by

consumers for the same purposes, because the ability of consumers to switch to a substitute

restrains a firm’s ability to raise prices above the competitive level.” City of New York v. Grp.

Health Inc., 649 F.3d 151, 155 (2d Cir. 2011) (internal quotation marks and citations omitted)

(emphasis added). “Where the plaintiff fails to define its proposed relevant market with reference

to the rule of reasonable interchangeability and cross-elasticity of demand, or alleges a proposed

relevant market that clearly does not encompass all interchangeable substitute products even when

all factual inferences are granted in plaintiff’s favor, the relevant market is legally insufficient.”

Id. at 155 (internal quotation marks and citations omitted).43

On the eve of trial, Plaintiff and its expert still cannot align on what an “accessible luxury

handbag” is, even though identifying what is in and out of the market is foundational to Plaintiff’s

case. On the face of its pleadings and based on Plaintiff’s representations to the Court,44

“accessible luxury handbags” are handbags that fit within parameters of its application of the

Brown Shoe factors and (1) feature “distinct prices” ranging loosely from $100-$1000; (2) are

made in “off shore Asia,” and (3) are crafted from “fine”—but not “the finest”—materials

(whatever that means). Plaintiff’s Brown Shoe analysis, however, supplies a definition that is too

43
See also Oracle, 331 F. Supp. 2d at 1131-32 (N.D. Cal. 2004) (noting product markets are
underinclusive if they fail to include all reasonably interchangeable products that constrain a
defendant’s pricing: the question is what customers could switch to in the event of a post-merger
price increase).
44
Compl. at ¶¶ 3-4. 33, 39, 42; Ex. 37, Remote Oral Argument Tr. 32:13-23 (May 13, 2024) (THE
COURT: “[I]s the market defined based on competitors, pricing, customers, craftsmanship, or is
it a combination of those things?” MS. DENNIS: “It’s a combination of those things, your Honor.
That’s how we define the market according to the Brown Shoe factors. That’s how the law says
that we are allowed to define the market.”).
17
vague to know what is in and out of the product market. Are handbags that sell at the same prices

as Defendants’ handbags in the market (regardless of whether they are outside of $100-$1000)?

Are all handbags that are sold in the $100-$1000 price range in the market? Are handbags of the

same quality materials but that sell for less than $100 in the market? What about preowned

handbags that sell for under $1000? What about new designer bags that sell for less than $1000?

What about a $1200 handbag that goes on sale for 20% off? Because Plaintiff’s market lacks

discernable parameters, there are not clear answers to these basic questions.

Dr. Smith’s expert report does not shed any light on these issues. 45 Dr. Smith posits a

different relevant market that is not tethered to Brown Shoe or the factual record built around the

Brown Shoe factors at all. Indeed, Dr. Smith makes clear that his relevant market is not defined

based on price, functional interchangeability, materials, manufacturing location, what the

industry thinks competes, or—most critically—what consumers view as substitutes. Instead, Dr.

Smith defines the market based on cuts from NPD data (NPD is a third-party data source derived

from sales information for certain department stores, known as wholesalers, that tracks segments

of retail sales in different industries and has no unique expertise in handbags). Specifically, he

limits his analysis to the sales of those brands that NPD classifies in its “bridge” and

“contemporary” tiers. As a result, Dr. Smith defines an “accessible luxury handbag” as limited to

45
Dr. Smith’s entire analysis is not based on sufficient data and does not reflect a reliable
application of basic merger economic principles and methods of analysis. As discussed, all of Dr.
Smith’s quantitative analyses, including the HMT that he uses to conclude the relevant market, the
shares he draws from that relevant market, and the competitive effects he posits will result from
this transaction, flow from his faulty calculation of diversion ratios. As Defendants will present
to the Court in a separate motion, Dr. Smith’s opinions based on his diversion ratios should be
excluded. See Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213–
14 (2d Cir. 2009). Dr. Smith’s decisions to remove certain categories of handbags and brands
from his relevant market also warrants exclusion of his opinions. Riegel v. Medtronic, Inc., 451
F.3d 104, 127 (2d Cir. 2006) (“An expert opinion requires some explanation as to how the expert
came to his conclusion and what methodologies or evidence substantiate that conclusion.”).
18
(1) brands that are tracked by NPD (meaning numerous brands like Cuyana, Louis Vuitton,

Lululemon, and Telfar are not included); (2) brands sold through the wholesale channels that NPD

tracks (meaning secondary sellers like Rue La La and Gilt Groupe are excluded); (3) brands that

NPD calls “bridge” and “contemporary” buckets (meaning brands like Calvin Klein, DKNY,

Burberry, and Yves Saint Laurent that are sold through NPD-tracked wholesale channels are

excluded regardless of price, quality, or functionality); and (4) sales of new bags within these

brands (meaning sales in department stores of preowned bags and sales through resellers like The

RealReal, Poshmark, and eBay, are excluded regardless of price).

This leads to some bizarre outcomes. A Calvin Klein bag that retails for the same price as

a Michael Kors bag is out because it is characterized as “better” by NPD and not “bridge” or

“contemporary.” A Lululemon or Telfar bag that is priced the same as a Kate Spade bag is out

because NPD does not track Lululemon or Telfar. A new Longchamp bag sold on Gilt and a Marc

Jacobs bag sold at Rue La La are out because NPD does not track these channels. And the

numerous preowned Louis Vuitton Neverfull bags that are under $1000 are out regardless of

channel because NPD does not track sales of bags that are not new. This is all the case,

notwithstanding that Plaintiff and Dr. Smith did no factual economic work to test whether (1) the

“moderate,” “better,” and “designer,” brands are substitutes with “bridge” and “contemporary”

brands under Brown Shoe, the HMT or any other means; (2) Lululemon, Telfar, or the many other

brands he excludes because they do not report to NPD are substitutes with the NPD “bridge” and

“contemporary” brands under Brown Shoe, the HMT, or any other means; and (3) preowned and

new handbags of similar prices are substitutes under Brown Shoe, the HMT or any other means.

Similarly, Plaintiff and Dr. Smith did no work to understand how NPD characterizes handbags in

the various “moderate,” “better,” “bridge,” “contemporary,” and “designer” categories. Plaintiff

19
ultimately bases its entire case on NPD’s categorizations, but it did not subpoena or depose NPD.

“By defining the market so narrowly, the Government attempts to ‘gerrymander its way to victory

without due regard for market realities.’” United States v. Booz Allen Hamilton Inc., No. CV CCB-

22-1603, 2022 WL 9976035, at *10 (D. Md. Oct. 17, 2022) (citations omitted).

Plaintiff will be unable to succeed whether its or Dr. Smith’s “accessible luxury handbag”

market at trial. If Plaintiff pursues Dr. Smith’s “accessible luxury handbag” version of the market

tethered to Brown Shoe, it fails (1) due to an inability to prove a plausible relevant product market

under Brown Shoe (as detailed below); and (2) because Plaintiff’s market lacks any economic

support, including the necessary market shares—Dr. Smith supplies no market shares beyond the

“NPD bridge/contemporary” shares.

If Plaintiff pursues its “NPD bridge/contemporary handbag” market, neither Plaintiff nor

Dr. Smith has done the factual and economic work needed to show that the decisions to exclude

numerous brands, channels, and preowned bags are backed by Brown Shoe, the HMT, or any other

analysis of consumer substitution patterns. On this basis alone, as in other cases, Plaintiff will be

unable to carry its burden because there is a failure of proof on the dispositive question of why all

of these sales were excluded from the market. See United States v. Gillette Co., 828 F. Supp. 78,

83-84 (D.D.C. 1993) (finding that government “failed to demonstrate that premium fountain pens

are not in competition with other premium writing instruments” and failed to establish its prima

facie case); United States v. U.S. Sugar Corp., No. CV 21-1644 (MN), 2022 WL 4544025, at *25

(D. Del. Sept. 28, 2022) (rejecting DOJ’s overly narrow market where DOJ “failed to identify the

relevant market for analyzing any proposed competitive injury” due to its failure to include

substitutes), aff'd, 73 F.4th 197, 205 (3d Cir. 2023) (noting the government’s effort to define the

20
relevant product market to exclude competitors was “irrelevant to consumer welfare” and “purely

self-serving”).46

1. The Brown Shoe Factors Do Not Support Plaintiff’s Decision To Limit

Its Market To “Accessible Luxury” Handbags

Plaintiff defends its “accessible luxury” handbag market with reference to the Brown Shoe

“practical indicia” factors. Brown Shoe holds that market definition must “correspond to the

commercial realities of the industry,” 370 U.S. at 336, and that the boundaries of a market “may

be determined by examining such practical indicia as industry or public recognition of the

submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique

production facilities, distinct customers, distinct prices, sensitivity to price changes, and

specialized vendors.” Id. at 325. Plaintiff cannot carry its burden properly applying these factors.

Industry or Public Recognition of a Separate Economic Entity. In Brown Shoe, the Court

found it relevant that the “public” recognized differences between the distinct product markets for

men’s, women’s, and children’s shoes. Id. at 326. Plaintiff has not cited any evidence that

consumers shop for “accessible luxury” handbags as a distinct product, much like they would shop

for “women’s shoes” (as distinct from “men’s shoes”). Plaintiff nevertheless contends there is a

well-recognized industry understanding of what “accessible luxury” means. That is wrong.

46
Plaintiff’s repeated reliance on IQVIA and Whole Foods does not require a different outcome
here. First, both cases were decided pre-Starbucks under a more deferential §13(b) standard.
Second, after reviewing the facts in those cases, the court determined that there were not substitutes
that customers viewed as reasonably interchangeable. The alternatives that the merging parties
pointed to in IQVIA (generalized advertising as a substitute for programmatic advertising to
healthcare professionals) and Whole Foods (generalized grocery stores as a substitute for grocery
stores specializing in premium and organic foods) did not offer the depth and breadth of products
and services that customers needed. Third, in both cases, three or fewer competitors would remain
post-merger. The handbag industry is totally different from these cases: there are hundreds of
functionally interchangeable handbags that customers can substitute to, which is why the FTC
cannot model anticompetitive effects as it did in those cases.
21
 47

48

49

Product’s Peculiar Characteristics and Uses. Plaintiff does not and cannot argue that

there are peculiar uses for an “accessible luxury” handbag as distinct from a “mass market” or

“luxury” handbag so instead it tries to manufacture vague and unmeasured distinctions related to

peculiar characteristics. Plaintiff claims that “accessible luxury handbags” “boast high quality

materials (often leather) and elevated craftmanship and construction,” Pl. Mot. for PI at 15, but

that observation is not backed by the evidence and certainly does not support an ascertainable

market. Brands across the spectrum use a variety of non-leather materials (including nylon,

canvas, and raffia) as well as leather. Moreover, Defendants’ handbags use the same types of

leather and craftmanship as the higher and lower priced handbags against which they compete.50

Similarly, Plaintiff has no evidence to differentiate Lululemon nylon from Tumi nylon from Prada

nylon. .51

47

48
Ex. 17, Gennette Rep. ¶¶ 26, 94-103; Ex. 1,
Giberson Rep. ¶¶ 16(c), 22-28.
49

50
Ex. 1, Giberson Rep. ¶¶ 60, 66-68; Ex. 41,
51
. Tellingly, Lululemon is not tracked by NPD, which
classifies Tumi as “contemporary” and Prada as “designer.”
22
 Plaintiff’s claim that Macy’s placement of Defendants’ brands in a “designer” category is

proof they are higher quality, Pl. Mot. for PI at 15, is misleading.

.52
53
Kate Spade’s

groupings as and confirm it does not have “peculiar characteristics.”54

Unique Production Facilities. Since its Complaint, Plaintiff has attempted to perpetuate

a claim that “luxury” products are made in Europe, “mass market” products are made in China and

“accessible luxury” products are made in “Asia”—or, as it now claims “off shore Asia,” which

results in higher quality than mass market. But there are no consistent differences in where the

brands Plaintiff categorizes as “luxury,” “accessible luxury,” and “mass market” manufacture

handbags. .55

56

.57
58

52

53

54
See also Ex. 17, Gennette Rep. at ¶¶ 94-103 (showing how retailers group brands Dr. Smith
considers “accessible luxury,” with “Better” and “Moderate” brands).
55

56

57

58

23
 59

60
Even brands

that Plaintiff deems “mass market,” such as Zara, spread their production across three continents,

including Europe.61

Distinct Customers. Plaintiff cannot show that “accessible luxury handbags” have distinct

customers separate from “mass market” and “luxury” customers.62 Defendants sell handbags to a

wide range of customers with varying levels of annual household income.

.63

64
There is also no support for the notion that the parties’

brands target customers within a specific income range.

59

60

61
Ex. 48, Inditex (Zara) has suppliers and factories in Spain, Portugal, Morocco, Turkey, India,
Bangladesh, Pakistan, Vietnam, China, and Cambodia. “Inditex Group Annual Report 2023,”
Inditex, available at https://static.inditex.com/annual_report_2023/en/Inditex_Group_Annual_
Accounts 2023.pdf, at p. 287.
62
Plaintiff did not define a market based on a targeted customer-type—i.e., “the sale of accessible
luxury handbags customers with a household income of less than $100,000.” Plaintiff has done
this in many other cases, but not here. See, e.g., FTC v. Sysco Corp., 113 F. Supp. 3d 1, 39 (2015)
(finding a market for “broadline distribution services sold to National Customers”).
63

64

24
 .65

66

.67

Distinct Prices. Plaintiff also will not be able to carry its burden to show that “accessible

luxury” handbags have distinct prices warranting a separate market between lower and higher-end

products. On the low end, Plaintiff tellingly does not even pay lip service in its brief to its claim

that handbags priced below “accessible luxury” are sold at distinct prices. Instead, Plaintiff

contends the Parties “generally focus their offerings on an opening price point of $100.” Pl. Mot.

for PI at 13. This carefully worded sentence—focusing on “opening price points” rather than

actual “point-of-sale price points”—is a red herring because the majority of Kate Spade and

Michael Kors handbags are sold below $100.68 If Defendants routinely sell handbags below $100,

then even if Plaintiff’s claim of an “accessible luxury” market were valid, this case would be over

65

66

67

68
See Ex. 23, Scott Morton Rep. (Aug. 7, 2024) at 81 (showing that in 2023, 63.6% of Michael
Kors bags sold as a share of total units and 51.0% of Kate Spade bags as a share of total units was
in the $50 to $100 range).
25
because the Defendants’ brands would not properly be part of that market. In any event, excluding

bags priced below $100 from the relevant market artificially removes many competitors,69

.70 Plaintiff’s expert

rejects applying a price range to the “accessible luxury” market, further undermining the concept.

On the high end, Plaintiff’s claim of “distinct pricing” and distinct discounting practices is

vacuous. Plaintiff does not cite a single piece of actual pricing data in its pre-trial brief to support

its claim of “distinct prices.” Plaintiff has not done the work to prove this point—nor can it: the

evidence will show that “accessible luxury” brands like Tory Burch, Khaite, and MCM (which

NPD characterizes as “bridge” or “contemporary”) sell products above $1000 and “luxury” brands

like Burberry, Yves Saint Laurent, and Louis Vuitton all offer handbags below $1000, and these

and others, including Bottega Veneta, Celine, and Gucci, sell discounted handbags at their outlet

stores priced well below $1000.71 It will also show that many brands which Dr. Smith classifies

as “accessible luxury” choose not to sell their handbags at discounts through discount wholesalers

or outlets to avoid diluting their brand.

72

69
Ex. 1, Giberson Rep., Exhibit C (listing another 97 brands that offer handbags with retail prices
starting below $100).
70

71
Ex. 2, Giberson Rep.,
Exhibit C (featuring sample of handbags from Balenciaga, Bottega Veneta, Burberry, Cartier,
Celine, Chloe, Fendi, Ferragamo, LVMH, and others that are below $1000).
72

26
 In Brown Shoe, the Court rejected an argument that “medium-priced shoes” did not

compete with “low-priced shoes,” noting it “would be unrealistic” to conclude that “men’s shoes

selling below $8.99 are in a different product market from those selling above $9.00.” Brown

Shoe, 370 U.S. at 326. So too here: it is just as unrealistic to say that a $90 Calvin Klein does not

compete with a $95 Michael Kors handbag, but that $95 Michael Kors handbag does compete with

a $500 Tory Burch handbag. Yet that is exactly what Plaintiff asks this Court conclude. Citing

Brown Shoe, courts have thus repeatedly observed that where, as here, pricing and quality varies

on a spectrum, defining markets by “price variances or product quality variances” is “economically

meaningless where the differences are actually a spectrum of price and quality differences.” In re

Super Premium Ice Cream Litig., 691 F. Supp. 1262, 1268 (N.D. Cal. 1988), aff’d sub nom.

Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 895 F.2d 1417 (Table), 1990 WL

12148 (9th Cir. 1990).73

This is especially the case in cases involving differentiated products (like handbags), in

which competition occurs across dimensions other than price. Haagen-Dazs, 1990 WL 12148, at

73
See e.g., Murrow Furniture Galleries, Inc. v. Thomasville Furniture Indus., Inc., 889 F.2d 524,
528 (4th Cir. 1989) (rejecting a market definition of “name-brand” or “better branded” furniture);
Ron Tonkin Grand Turismo v. Fiat, 637 F.2d 1376, 1379-80 (9th Cir. 1981) (affirming rejection
of proposed market consisting only of Fiat cars in favor of “cars in general” because there was
“nothing so special about a Fiat that a prospective purchaser will refuse to buy a Datsun or
Chevette, no matter what the price of a Fiat”); Beatrice Foods Co. v. FTC, 540 F.2d 303, 310 (7th
Cir. 1976) (rejecting submarkets of “professional” and “do-it-yourself” paint brushes and rollers
where the “record does not support any contention that higher-priced brushes and rollers are
particularly suitable for uses in which lower-priced articles are unacceptable” or “that lower-priced
and higher-priced items are marketed and sold to distinct groups of customers.”); JBL Enterprises
v. Jhirmack Enterprises, Inc., 509 F. Supp. 357, 369-76 (N.D. Cal. 1981) (rejecting a relevant
submarket limited to sales of shampoo and conditioners through salons and other professional
outlets in favor of one comprising the sales of all beauty products through all professional outlets);
United States v. Jos. Schlitz Brewing Co., 253 F. Supp. 129, 145-46 (N.D. Cal. 1966) (rejecting
submarket of premium beers because “beer prices range over a wide spectrum” and thus there was
“no rational way of choosing a point along this price spectrum”), aff’d, 385 U.S. 37 (1967).
27
*3 (“Courts have repeatedly rejected efforts to define markets by price variances or product quality

variances” because “differentiated products face intense competition from other brands of the same

product”). Handbags are the classic “differentiated product” and Plaintiff provides no reason to

depart from this settled line of cases.74 See generally, United States v. Oracle Corp., 331 F.

Supp.2d 1098, 1123 (N.D. Cal. 2004) (“A presumption of anticompetitive effects from a combined

share of 35% in a differentiated products market is unwarranted. Indeed, the opposite is likely true.

To prevail on a differentiated products unilateral effects claim, a plaintiff must prove a relevant

market in which the merging parties would have essentially a monopoly or dominant position.”).

2. Dr. Smith’s Economic Analyses In Defense Of Plaintiff’s Case Should

Receive No Weight Because Of Incurable Flaws In His Analyses

Plaintiff argues that the hypothetical monopolist test (“HMT”) conducted by Dr. Smith

“confirms” that “accessible luxury” is an appropriate relevant market. Pl. Mot. for PI at 20.75 Dr.

Smith’s HMT appears to be the only quantitative analysis Plaintiff will put forth in this case to

support its market definition. Based on our research, no court has ever found a party to have

satisfied its burden to establish a relevant market for Section 7 purposes when that party’s expert

failed to properly conduct an HMT that supports it purported market definition.

74
Plaintiff’s cited cases are not to the contrary. For example, in Lancaster Colony, the parties did
not argue—and the court never addressed—whether glassware was priced on a spectrum, and the
court held that low or moderately-priced glassware was in a different market than higher-priced
and other forms of glassware primarily due to their “different use characteristics.” 434 F. Supp.
1088, 1093 (S.D.N.Y. 1977). Similarly, Geneva Pharmaceuticals did not involve products priced
on a spectrum, and instead addressed pricing differences between two highly regulated
pharmaceutical drugs. 386 F.3d 485, 496-97 (2d Cir. 2004). Reynolds Metals likewise involved
pricing that did not occur on a spectrum, and moreover, the court based its holding not only on
evidence of distinct pricing, but also on distinct customers. 309 F.2d 223, 228-29 (D.C. Cir. 1962).
75
As the FTC notes, the HMT looks to whether a hypothetical monopolist of the products within
a candidate market could profitability impose a small but significant and non-transitory increase
in price (generally 5% or 10%) or other worsening of terms. Pl. Mot. for PI at 20-21. If the
hypothetical monopolist could profitably raise prices in the candidate market, then that market
constitutes a relevant product market exists for antitrust purposes. Pl. Mot. for PI at 20-21.
28
 A threshold problem with Plaintiff’s reliance on Dr. Smith’s HMT as “confirmation” for

its proposed “accessible luxury handbag” market, is that Dr. Smith did not run his HMT on the

market that the Plaintiff identifies through its analysis of Brown Shoe factors. Instead, Dr. Smith

ran his HMT on his “NPD bridge/contemporary handbag” version of the market, meaning it is

limited to brands that NPD designated as “bridge” and “contemporary.” Pl. Mot. for PI at 20. This

is problematic in several respects. First, Plaintiff’s claim that Defendants use NPD in the ordinary

course as a basis for this decision is specious at best.

.76 Second, NPD did not qualify the brands “bridge” and “contemporary”

as constituting “accessible luxury” brands, and neither Plaintiff nor Dr. Smith did any inquiry to

understand how NPD makes its classifications.77 If NPD’s classifications were so critical to Dr.

Smith’s analysis, one would expect the FTC to offer evidence of NPD’s processes and choices,

but Plaintiff never even sought a subpoena or deposition testimony. Third and most troubling,

neither Plaintiff nor Dr. Smith did any analysis as to whether the brands identified as “bridge” and

“contemporary” by NPD were a relevant market under the Brown Shoe factors. Any assertion that

Dr. Smith’s HMT confirms Plaintiff’s “accessible luxury handbag” submarket is a non-sequitur.78

76

77
Ex. 1, Giberson Rep. ¶¶ 29-30, 43-63; Ex. 17, Gennette Rep. ¶¶ 94-103.
78
Dr. Smith defends his decision to treat NPD’s listings of “bridge” and “contemporary” as
constituting the brands in the “accessible luxury” market based on the fact that in a market sizing
model, Tapestry identifies “bridge” and “contemporary” brands as “accessible luxury.” Pl. Mot.
for PI at 21. Nowhere in Tapestry’s model does it ever reference an “accessible luxury” category,
let alone assert that NPD’s “bridge” and “contemporary” categories constitute an “accessible
luxury” market. Dr. Smith is relying on a stray sentence in a 2021 cover email transmitting the
2021 model. That is not an acceptable basis for a serious economist to conclude that two
unexplained groupings of brands in a third-party data source constitute an antitrust market.
29
 For the sake of argument only, even if Dr. Smith and Plaintiff are seeking to prove the same

“accessible luxury handbag” market, Dr. Smith’s HMT still does not support Plaintiff’s “accessible

luxury” market. That is because, as Plaintiff acknowledges, Dr. Smith’s conclusion that

“accessible luxury” satisfies the hypothetical monopolist test is based on his calculation of

aggregate diversion ratios. Pl. Mot. for PI at 21; Ex. 3, Smith Rep. at ¶102. As merger cases have

explained, “diversion refers to a consumer’s response to a measured increase in the price of a

product. In other words, diversion measures to what extent consumers of a given product will

switch (or be ‘diverted’) to other products in response to a price increase in the given product.”

United States v. H&R Block, Inc., 833 F. Supp. 2d 36, 62 (D.D.C. 2011). However, Dr. Smith

never actually measured diversion, which makes his ratios—and hence his HMT—completely

unreliable.

While the concept of diversion ratios may appear complicated, the reason Dr. Smith’s

analysis cannot support his conclusions is simple. Dr. Smith concluded that in response to an

increase in price of Coach, Kate Spade or Michael Kors, customers would divert to the other two

products in sufficient numbers that his candidate market passes his HMT. Pl. Mot. for PI at 20,

Ex. 3, Smith Rep ¶¶ 105-07.

.79 Ex. 3, Smith Rep. ¶¶ 106, 218-

222.

. Ex. 3, Smith Rep. ¶¶ 301-02.

79

30
 In H&R Block, the court rejected the parties’ expert’s attempt in a merger challenge to

calculate diversion ratios and define the relevant market based on survey data that provided

respondents with a pre-selected list of alternative options and only asked them about what products

they would switch to if they became dissatisfied with their current tax preparation method. 833 F.

Supp. 2d at 70-71. Indeed, the government sought to exclude the analysis from the hearing,

arguing that “a survey must ask the right question in order to have evidentiary value” and because

the survey questions did “not reflect customer response to market changes at all [] its responses

cannot be used as evidence of the diversion ratio.” Ex. 36, Pl.’s Mem. of P. & A. in Supp. of Pl.’s

Mot. in Limine at 5, H&R Block, No. 11-cv-00948-BAH (D.D.C. Aug. 24, 2011), ECF No. 67.

Here, Dr. Smith’s use of the survey is even more inappropriate,

This obvious flaw, along with countless other methodological flaws,

render his diversion ratio analysis and HMT meaningless. See Scott Morton Rep. at Section V.B.

Because all of Dr. Smith’s other analyses, including his merger simulation, rely on this diversion

analysis, they likewise cannot be relied upon. See Scott Morton Rep. at Section VIII.E.

This is not the first time Dr. Smith has attempted to calculate diversion ratios to establish

a relevant market in an antitrust merger case. Dr. Smith was retained by the FTC once before, in

FTC v. Thomas Jefferson University, 505 F. Supp. 3d 522 (E.D. Pa. 2020), which is the only other

31
merger challenge in which he ever testified. In that case, the court reviewed and roundly criticized

Dr. Smith’s attempt to define a relevant market based on his diversion ratio analysis, noting, “Dr.

Smith’s diversion ratios imperfectly capture all the factors underlying patient ‘choices’ and insurer

responses in the rehabilitation context.” Id. at 553-54. Without economic support, the court held

the FTC failed to properly define a relevant market, could not establish a likelihood of success on

the merits, and denied the FTC’s motion for a preliminary injunction. Id. at 558. Dr. Smith’s

diversion analysis is even more faulty, and requires the same outcome.80

B. Plaintiff Cannot Evade Market Definition Claiming The Transaction

Eliminates Head-to-Head Competition

Unable to establish a relevant market, Plaintiff radically argues that the elimination of

“head-to-head competition between close competitors” provides an independent basis to block the

transaction. Coach, Kate Spade, and Michael Kors do not compete with each other any more

“closely” than they do with many other brands, but regardless, that is not the law. Plaintiff cites

no case to support the proposition that it can evade market definition and obtain a preliminary

injunction without proving a relevant market. The Court should reject Plaintiff’s request that it be

the first.

As discussed supra, it is settled black letter law that as “necessary predicate” to a Section

7 claim, Plaintiff must show that a transaction is likely to substantially reduce competition in a

relevant market. United States v. E.I. du Pont de Nemours Co., 353 U.S. 586, 593 (1957). The

fact that the Plaintiff is the FTC in a Section 13(b) action does not change the legal elements of a

80
Plaintiff also radically argues that Dr. Smith’s analysis also shows that “the Defendants’
accessible luxury handbag brands by themselves satisfy the HMT, demonstrating the existence of
a relevant product market that is limited to Coach, Kate Spade, and Michael Kors handbags.” (Pl.
Mot. for PI at 21-22). This analysis is likewise based on Dr. Smith’s diversion ratios and must be
rejected for the same reasons noted above. See Arch Coal, Inc., 329 F. Supp. 2d at 121.
32
Section 7 claim. See, e.g., FTC v. Freeman Hosp., 69 F.3d 260, 268 (8th Cir. 1985); Thomas

Jefferson Univ., 505 F. Supp. 3d at 539 (in determining if the FTC has met its burden in a Section

13(b) merger challenge, “it is first necessary to determine the relevant geographic and product

markets”). Every case Plaintiff cites to advance its novel position confirms that the law requires

finding a relevant market before analyzing anticompetitive effects.81 These cases provide no

support for Plaintiff’s claim that this Court can eschew market definition under step one. Plaintiff’s

citation to the recent aspirational policy announcement of the current administration in the recently

published Horizontal Merger Guideline 2.2—which is in direct conflict with Supreme Court

precedent—does not change the law.82

II. PLAINTIFF’S PRIMA FACIE CASE INACCURATELY PREDICTS THE

MERGER’S ANTICOMPETITIVE EFFECTS

Plaintiff’s failure to establish it prima facie case ends the analysis. But even if Plaintiff

does meet its burden under the first prong, Defendants can rebut that case by demonstrating that

the Government’s prima facie case and “statistics on market share, market concentration, and

market concentration trends inaccurately predicts the merger’s probable effects on competition.”

Baker Hughes, 908 F.2d at 991 (cleaned up); see id. (“market share” does not always translate to

“market power, which is the ultimate consideration” in whether a defendant can rebut a plaintiff’s

81
See Sysco Corp., 113 F. Supp. 3d at 24 (“Merger analysis starts with defining the relevant
market.”); IQVIA, 2024 WL 81232, at *11 (“For the FTC to make out a prima facie case, it must
define a relevant market . . . .”); Whole Foods, 548 F.3d at 1036 (rejecting the FTC’s argument
that “a market definition is not necessary in a § 7 case,” noting that “the framework we have
developed for a prima facie § 7 case rests on defining a market and showing undue concentration
in [a relevant] market”); United States v. Mfrs. Hanover Trust Co., 240 F. Supp. 867, 902
(S.D.N.Y. 1965) (holding that “proof of the competitive structure of each of them lie at the very
threshold of the government’s burden of proof” and defining relevant markets).
82
No court has cited the 2023 Horizontal Merger Guidelines as persuasive authority. Olin Corp.
v. FTC, 986 F.2d 1295, 1300 (9th Cir. 1993) (“Certainly the Guidelines are not binding on the
courts, or for that matter, on the Commission.” (citation omitted)).
33
prima facie showing). The standard for the quantum of evidence defendants must produce to shift

the burden back is relatively low particularly where, as here, the Plaintiff’s prima facie case is

weak. Arch Coal, 329 F. Supp. 2d at 129 (“Certainly less of a showing is required from defendants

to rebut a less-than-compelling prima facie case.”).

A. Plaintiff’s Shares Overstate The Transaction’s Likely Competitive Effects

Because Entry, Expansion and Repositioning Are Likely

Plaintiff’s market share statistics overstate the transaction’s potential competitive effects

because competitors can (and already do) quickly enter, expand, and reposition. These facts

confirm that there is an “absence of significant barriers [to entry]” and—notwithstanding there is

zero evidence of past or future supracompetitive pricing—Defendants “probably cannot maintain

supracompetitive pricing for any length of time.” Baker Hughes, 908 F.2d at 987.

Plaintiff’s position has consistently been that entry must be of the size and scale to replace

Michael Kors’ footprint today. Pl. Mot. at 30. No authority supports this position. Plaintiff’s lone

citation to Chicago Bridge makes clear that the question is whether remaining and potential

competitors have the collective ability “to constrain supracompetitive prices.” Chi. Bridge & Iron

Co. N.V. v. FTC, 534 F.3d 410, 429 (5th Cir. 2008); see also United States v. Waste Mgmt., Inc.,

743 F.2d 976, 982-83 (2d Cir. 1984) (reversing finding of Section 7 liability based on potential for

entry where firms had a combined 48.8% share of the relevant market, but where barriers to entry

were sufficiently low such that easy of entry constrained every firm in the market). The issue

therefore is whether competitors exist to collectively produce enough output to constrain price

increases and that, in turn, requires analyzing whether there are barriers to entering the market or

scaling production to offset price increases. Where, as here, such barriers do not exist, there is an

adequate competitive constraint on the merged entity.

34
 Here, entry is constant and relatively easy.83 DTC e-commerce platforms allow a designer

to start a handbag brand with little to no infrastructure for manufacturing.84

.85

Moreover, most handbag producers rely on contract manufacturers to make their bags and these

third-party manufacturers are readily available to new entrants.86 And wholesalers such as Macy’s

and Dillard’s are incentivized to promote new entrants in their stores.87

Examples of entry and expansion abound.

.88

.89
90

91

83

84

85

86
Ex. 1, Giberson Rep. ¶¶ 86-95.
87
Ex. 17, Gennette Rep. ¶¶ 40-59.
88

89

90

91

35
 92
There are countless more examples.93

B. Tapestry’s Emphasis On Brand Autonomy Will Ensure Competition Among

Coach, Kate Spade, And Michael Kors Continues

Plaintiff’s market shares are also not indicative of an antitrust issue because Plaintiff’s

entire theory in challenging this transaction rests on a fallacy that, after the merger, Tapestry

intends to eliminate competition among Coach, Kate Spade, and Michael Kors, including as to

setting prices, discounting, product development, and wholesaler negotiations. That is not true.

Tapestry has no incentive or plans to merge the brands, share pricing information between the

brands, or to otherwise limit innovation.

.94 As such, Dr. Smith’s market shares—

92

93

94

36
which assume consolidation of the brands—“produce an inaccurate account of the merger’s

probable effects on competition in the relevant market,” Arch Coal, 329 F. Supp. 2d at 116.

C. The Transaction Rationale Is Procompetitive: Tapestry Intends To Improve

Demand For Michael Kors Handbags And Drive Increased Sales

.95 In analyzing the transaction’s

competitive effects, Plaintiff and Dr. Smith conduct a static analysis that presumes the sales of

Michael Kors handbags remain stagnant. There is no support for that assumption.96 Plaintiff’s

concentration statistics fail to accurately portray the merging company’s weak competitive stature

given the merged entity’s declining competitive significance. United States v. Gen. Dynamics

Corp., 415 U.S. 486, 497-98 (1974); Baker Hughes, 908 F.2d at 986.

.97

Plaintiff attempts to foreclose this argument by arguing this evidence must meet the formal

elements of an efficiencies defense to be considered by this Court. Pl. Mot. for PI at 33-34. That

is incorrect. Defendants’ point here is not that the Court should clear the transaction on the basis

of an efficiencies defense. The question under the second prong of the burden-shifting inquiry is

whether Defendants have met Plaintiff’s prima facie case with evidence that suggests Plaintiff is

95

96

97

37
overstating the transaction’s likely anticompetitive effects. Viewed through this lens, Defendants’

position is that the evidence on the deal rationale combined with the other evidence discussed

herein demonstrates such an overstatement. See Baker Hughes, 908 F.2d at 990-92.

III. PLAINTIFF CANNOT CARRY ITS BURDEN TO PROVE SUBSTANTIAL

ANTICOMPETITIVE EFFECTS IN ITS RELEVANT MARKETS

Plaintiff must prove that it is likely to prevail on the merits of its claim that the transaction

is likely to have substantial anticompetitive effects in a relevant market; the elimination of some

head-to-head competition and “some lessening of competition” is not sufficient under the law.

Int’l Shoe, 280 U.S. at 298 (noting that Section 7 “deals only with such acquisitions as probably

will result in lessening competition to a substantial degree”). This means Plaintiff must put

forward a defensible, “forward-looking analysis” which proves that the acquirer likely will raise

prices post-merger. U.S. v. Sabre Corp., 452 F. Supp. 3d 97, 146 (2020).

Plaintiff’s pre-trial brief says nothing on this issue. The lone economic evidence that

Plaintiff appears to be relying on to support its claim is Dr. Smith’s projection that the transaction

will result in as much as a 30% price increase on Michael Kors handbags. Pl. Mot. for PI at 21.

As trial will show, there are numerous errors with this projection. First, as noted above, Dr.

Smith’s projected price increases are based on his HMT analysis, which is founded on his faulty

diversion ratios. And because of that, Dr. Smith cannot conclude it would be profitable for Michael

Kors to raise price post-acquisition. Dr. Smith’s attempt to salvage that analysis with his merger

simulation model fares no better, since it likewise is reliant on his faulty diversion ratios.

Second, for Plaintiff’s theory to be true, this Court must believe that Coach and Kate Spade

are the primary constraints on Michael Kors pricing today. There is no factual evidence to support

that view. Normally, when the government prevails in a case projecting a post-closing price

increase, the record contains evidence showing that each merging party is unable to profitably raise

38
price currently due to competition from the other.98 That does not exist here. The record similarly

lacks the usual evidence of customers or competitors worried about post-closing conduct.

Third, given Plaintiff concedes there are 238 competitors even in its narrow market and

has not put forward evidence to show these competitors cannot meet demand, it is factually

implausible to suggest that Tapestry could acquire Michael Kors tomorrow, impose as much as a

30% mark-up, and consumers would accept that increase. Consumers have hundreds of choices

they can turn to if they do not want to pay the price that Defendants or any brand offers.

IV. PLAINTIFF FAILS TO SHOW A BALANCE OF EQUITIES IN ITS FAVOR

To determine whether to grant a preliminary injunction under section 13(b), a court must

balance the equities. FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1083 (D.C. Cir. 1981). The kinds

of equities that may be considered “[are] not qualified” by the statute. Id.

The equities favor denying injunctive relief here. Plaintiff has had a year to develop its

case, but has remained blind to the evidence. After a nine-month investigation, Plaintiff filed a

lawsuit based on cherry-picked document excerpts and without deposing a single customer or

competitor. Plaintiff bases its market share calculations on assumptions made by NPD, but it

refused to obtain discovery from NPD. Faced with data and document productions from

wholesalers and competitors, Dr. Smith excluded the vast majority of that data in his market share

analysis. And in a case where Plaintiff’s economist relies entirely on a years-old survey that asks

98
See, e.g., United States v Bazaarvoice, Inc., No. 13-133-WHO, 2014 WL 203966, *54-55 (N.D.
Cal. Jan. 8, 2014) (citing documents and data showing the merging parties competed head-to-head
for opportunities); Sysco Corp., 113 F. Supp. 3d at 61-65 (same).
39
the wrong questions to support both its market definition and its competitive effects analysis,

Plaintiff chose not to conduct a proper consumer survey.99

Tapestry’s acquisition will benefit Capri’s customers and especially the current and future

consumers of Michael Kors bands. Tapestry will restore the brand’s health, improve the value of

Michael Kors handbags, and re-engage with the Michael Kors consumers to give them the Michael

Kors handbags they want. Because of the lengthy time required to go through the administrative

litigation process, granting an injunction will necessarily kill the deal, robbing consumers of the

procompetitive advantages resulting from this merger. See, e.g., Arch Coal, 329 F. Supp. 2d at

160. Where, as here, “the harm to defendants is great and there is little likelihood that

consummation of the merger would jeopardize ultimate relief, the court clearly may deny

injunctive relief.” United States v. Siemens Corp., 621 F.2d 499, 506 (2d Cir. 1980).100

CONCLUSION

This Court should deny Plaintiff’s request for a preliminary injunction.

99
Plaintiff has conducted a survey when it wants to and, presumably, when the facts support its
theory. See, e.g., Ex. 64, Mem. of P. & A. in Supp. of Mot. for a Prelim. Inj. at 15, FTC v. Meta
Platforms, Inc., No. 5:22-cv-04325 (N.D. Cal. Oct. 31, 2022), ECF No. 164 (citing a consumer
survey that the FTC’s expert conducted).
100
Contrary to Plaintiff’s assertion (Pl. Mot. For PI at 34-35), Tapestry’s acquisition of Capri does
not implicate the “principal” “public equity consideration [that Congress had] in mind when it
enacted section 13(b),” which is the need to maintain the pre-merger “status quo” so that the FTC
can award effective relief if it succeeds on the merits. FTC v. H.J. Heinz Co., 246 F.3d 708, 726
(D.C. Cir. 2001). The typical concern that an acquirer will “scramble the eggs” that the FTC
worries about post-closing does not exist here. The evidence will show that Tapestry’s practice
with its acquisitions of Kate Spade and Stuart Weitzman has been to maintain them as separate,
standalone businesses, which it will also do here. Plaintiff can still seek to rescind the deal via its
administrative litigation process if it proposes to do so; an injunction does not preclude it from
going down that path.
40
Dated: August 20, 2024 Respectfully submitted,

Alfred C. Pfeiffer (pro hac vice)

Christopher S. Yates (pro hac vice)
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111
Telephone: (415) 395-8240
Facsimile: (415) 395-8095
[email protected]
[email protected]

Amanda P. Reeves (pro hac vice)

Ian R. Conner (pro hac vice)
Lindsey S. Champlin (pro hac vice)
Jennifer L. Giordano (pro hac vice)
David L. Johnson (pro hac vice)
Seung Wan (Andrew) Paik (pro hac vice)
Mary A. Casale (pro hac vice)
Christopher J. Brown (pro hac vice)
LATHAM & WATKINS LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004
Telephone: (202) 637-2200
Facsimile: (202) 637-2201
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Lawrence E. Buterman
LATHAM & WAKINS LLP
1271 Avenue of the Americas
New York, NY 10020
Telephone: (212) 906-1200
Facsimile: (212) 751-4864
[email protected]

Sean M. Berkowitz (pro hac vice)

41
 LATHAM & WATKINS LLP
330 North Wabash Avenue, Suite 2800
Chicago, IL 60611
Telephone: (312) 876-7700
Facsimile: (312) 993-9767
[email protected]

Attorneys for Tapestry, Inc.

/s/ Jonathan Moses

Jonathan M. Moses101
Elaine P. Golin
Adam L. Goodman
Karen Wong
Brittany A. Fish
51 West 52nd Street
New York, New York 10019
Telephone: (212) 403-1000
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Attorneys for Capri Holdings Limited

101
Electronic signatures used with consent in accordance with Rule 8.5(b) of the Court’s ECF
Rules and Instructions.
42