# United States v. H & R Block, Inc. > District Court, District of Columbia · November 10, 2011 · 833 F. Supp. 2d 36 URL: https://www.frixlaw.com/law-library/cases/2663375 ## Case - **Full name:** UNITED STATES of America, Plaintiff, v. H & R BLOCK, INC., Et Al., Defendants - **Court:** District Court, District of Columbia - **Decided:** November 10, 2011 - **Citations:** 833 F. Supp. 2d 36; 2011 U.S. Dist. LEXIS 130219; 2011 WL 5438955 - **Precedential status:** Published - **Opinion:** Opinion by Howell - **Judges:** Judge Beryl A. Howell - **Nature of suit:** Civil - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2663375 ## How later opinions describe it (automated extraction) - finding that the relevant market would lose an “aggressive competitor” with an “impressive history' of innovation” and its “history of expanding the scope of its high-quality, free product offerings has pushed the industry toward lower pricing” - explaining “the principle that the relevant product market-should ordinarily be defined as the smallest product market that -will satisfy the hypothetical monopolist test” - stating that merger simulations have “some probative value in predicting the likelihood of a potential price increase after the merger” - finding that “importance of reputation and brand in driving consumer behavior” limited an existing competitor’s ability to expand ## Opinion text UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No. 11-00948 (BAH) H&R BLOCK, INC., et al., Defendants. MEMORANDUM OPINION1 Last year, approximately 140 million Americans filed tax returns with the Internal Revenue Service (“IRS”). Paying taxes is a fundamental civic duty in our democracy. Taxes pay for the government to carry out its constitutionally mandated functions and enable the government to give force to the laws and policies adopted by the people of the United States through their elected representatives. Despite the necessity of taxes to fund our government and to sustain services that many citizens depend upon, the task of preparing a tax return brings joy to the hearts of few. Many find it to be a complex and tedious exercise. Fortunately, various businesses offer different products and services designed to assist taxpayers with preparing their returns. These tax preparation businesses principally include accountants, retail tax stores, and digital tax software providers – all of which provide important services to the American taxpayer. In this case, the United States, through the Antitrust Division of the Department of Justice, seeks to enjoin a proposed merger between two companies that offer tax software 1 The Court provided this Memorandum Opinion to the parties in final form on October 31, 2011, but public release was delayed to ensure that no confidential business information that had been submitted under seal was released. Based on input from the parties, confidential business information has been redacted from the opinion, with such redactions reflected by the insertion of the text “{redacted}.” In some instances, redacted confidential business information has been replaced by more general language that reflects the same underlying concepts without revealing the confidential business information. Such substitutions are indicated by braces surrounding the substituted text. products – H&R Block and TaxACT – on the grounds that the merger violates the antitrust laws and will lead to an anticompetitive duopoly in which the only substantial providers of digital tax software in the marketplace would be H&R Block and Intuit, the maker of the popular “TurboTax” software program. After carefully considering all of the evidence, including documents and factual and expert testimony, the applicable law, and the arguments before the Court, the Court will enjoin the proposed merger for the reasons explained in detail below. * * * 2 TABLE OF CONTENTS I. BACKGROUND………………………………………………………………... 4 A. Overview……………………………………………………………………... 4 B. The Merging Parties……………………………………………………......... 7 C. The History Of TaxACT And The Proposed Transaction……………….. 8 D. Free Products And The Free File Alliance……………………..………….. 10 II. STANDARD OF REVIEW………………………………………………........ 13 III. DISCUSSION……………………………………………………………........ 15 A. The Relevant Product Market………………………………………........... 15 1. The Defendants’ Documents Show That DDIY Is The Relevant Product Market……………………………………………………………………. 19 2. The Relevant Product Market Does Not Include Assisted Tax Preparation Or Manual Preparation…………………………………………….. 22 3. The Economic Expert Testimony Tends To Confirm That DDIY Is The Relevant Product Market……………………………………………………. 31 B. Likely Effect on Competition………………………………………………. 50 1. The Plaintiff’s Prima Facie Case……………………………………........ 50 2. Defendants’ Rebuttal Arguments………………………………………... 53 a. Barriers to Entry………………………………………………............ 53 b. Coordinated Effects………………………………………………….. 60 c. Unilateral Effects… …………………………………………….......... 67 d. Post-Merger Efficiencies….…………………………………….......... 80 IV. CONCLUSION………………………………………………………………. 86 3 I. BACKGROUND A. Overview The United States, through the Antitrust Division of the Department of Justice (the “DOJ,” the “government,” or the “plaintiff”), filed this action on May 23, 2011. The DOJ seeks to enjoin Defendant H&R Block, Inc. from acquiring Defendant 2SS Holdings, Inc. (“TaxACT”), which sells digital do-it-yourself tax preparation products marketed under the brand name TaxACT. Compl. ¶ 10. H&R Block (“HRB”) is a Missouri corporation headquartered in Kansas City, Missouri. Id. ¶ 9. 2SS Holdings, or TaxACT, is a Delaware corporation headquartered in Cedar Rapids, Iowa. Id. ¶ 10. Defendant TA IX, L.P. (“TA”), a Delaware limited partnership headquartered in Boston, Massachusetts, owns a two-thirds interest in TaxACT. Id. ¶ 11. As noted above, approximately 140 million Americans filed tax returns with the IRS in 2010. Id. ¶ 1. Broadly speaking, there are three methods for preparing a tax return. The “pen and paper” or “manual” method includes preparation by hand and with free, electronically fillable forms available on the IRS website. A second method, known as “assisted” preparation, involves hiring a tax professional – typically either a certified public accountant (“CPA”) or a specialist at a retail tax store. HRB operates the largest retail tax store chain in the United States. Cobb, TT, 9/19/11 a.m., at 37. The companies Jackson-Hewitt and Liberty Tax Service also operate well-known retail tax stores. Finally, many taxpayers now prepare their returns using digital do-it-yourself tax preparation products (“DDIY”), such as the popular software product “TurboTax.” DDIY preparation is becoming increasingly popular and an estimated 35 to 40 million taxpayers used DDIY in 2010. GX 19 at 3; see also GX 27.2 2 In this opinion, the Court will use the abbreviations “GX”, “GTX”, “DX”, and “DTX” to refer to the government’s exhibits, the government’s trial exhibits, the defendants’ exhibits, and the defendants’ trial exhibits, respectively. 4 The three most popular DDIY providers are HRB, TaxACT, and Intuit, the maker of TurboTax. According to IRS data, these three firms accounted for approximately 90 percent of the DDIY-prepared federal returns filed in tax season 2010.3 GX 27. The next largest firm is TaxHawk, also known as FreeTaxUSA, with 3.2 percent market share, followed by TaxSlayer, with 2.7 percent. Id. The remainder of the market is divided among numerous smaller firms. Id. Intuit accounted for 62.2 percent of DDIY returns, HRB for 15.6 percent, and TaxACT for 12.8 percent. Id. DDIY products are offered to consumers through three channels: (1) online through an internet browser; (2) personal computer software downloaded from a website; and (3) personal computer software installed from a disk, which is either sent directly to the consumer or purchased by the consumer from a third-party retailer. GX 629 at 11. In industry parlance, DDIY products provided through an internet browser are called “online” products, while software applications downloaded onto the user’s computer via the web or installed from a disk are referred to as “software” products. See id. The proposed acquisition challenged in this case would combine HRB and TaxACT, the second and third most popular providers of DDIY products, respectively. According to the government, this combination would result in an effective duopoly between HRB and Intuit in the DDIY market, in which the next nearest competitor will have an approximately 3 percent market share, and most other competitors will have less than a 1 percent share. GX 27. The government also alleges that unilateral anticompetitive effects would result from the elimination of head-to-head competition between the merging parties. Compl. ¶ 45. “TT” refers to trial testimony. “PFF” refers the plaintiff’s proposed findings of fact. “DFF” refers to the defendants’ proposed findings of fact. 3 The denomination of different years in the tax industry can be somewhat confusing. Tax returns are typically due in the month of April following the relevant tax year. Thus, each “tax season” refers to the period when returns for the prior “tax year” are generally completed. For example, “tax season 2010” refers to returns filed primarily in early 2010, corresponding to income earned in “tax year 2009.” 5 Thus, the DOJ alleges that because the proposed acquisition would reduce competition in the DDIY industry by eliminating head-to-head competition between the merging parties and by making anticompetitive coordination between the two major remaining market participants substantially more likely, the proposed acquisition violates Section 7 of the Clayton Act, 15 U.S.C. § 18. Id. ¶¶ 40-49. Accordingly, the government seeks a permanent injunction blocking HRB from acquiring TaxACT. Id. ¶¶ 53-55. On July 6, 2011, the Court entered a scheduling order in this case that provided for an expedited schedule of fact and expert discovery and briefing on the government’s anticipated motion to enjoin the transaction. Joint Scheduling and Case Mgmt. Order, ECF No. 30. On August 1, 2011, the DOJ filed a motion for preliminary injunction against the merger, which was fully briefed by August 18, 2011. The parties subsequently agreed to forego the preliminary injunction phase and proceed directly to a trial on the merits of this action. TT, 9/6/11 a.m., at 8- 9. On September 2, 2011, the Court held a pre-trial conference. On September 6, the Court began a nine-day bench trial that was held on September 6, 7, 8, 9, 12, 13, 15, 19, and 20. Eight fact witnesses and three expert witnesses testified at the hearing. The parties presented testimony from additional witnesses by affidavit and deposition. Each side submitted over 800 exhibits, totaling many thousands of pages. Following the conclusion of the evidentiary phase of the trial, the Court gave the parties approximately two weeks to submit post-trial memoranda and proposed findings of fact, which were filed on September 28, 2011. ECF Nos. 98-99. The Court then heard closing arguments on October 3, 2011. The government’s motion to enjoin HRB’s acquisition of TaxACT is presently before the Court. For the reasons explained in this opinion, the Court grants the government’s motion. 6 Before proceeding to a discussion of the relevant legal standards governing this case, the Court will provide additional background regarding the parties, their proposed transaction, and the tax preparation industry in general. B. The Merging Parties HRB is a Missouri corporation with its principal place of business in Kansas City, Missouri. Compl. ¶ 9; Defs.’ Answer, ECF No. 31, ¶ 9. HRB provides both assisted tax preparation services and DDIY products through separate business units. Bennett, TT, 9/6/11 a.m., at 106. HRB offers its DDIY products for consumers under the brand name “H&R Block At Home” (formerly known as “TaxCut”). GX 629 at 9. In 2011, HRB’s DDIY products generated {significant} revenue. GX 296-2. For the same period, HRB sold approximately 6.69 million DDIY units to consumers. GX 296-2. Separately, in 2011, HRB’s assisted tax preparation business generated approximately $2.7 billion in revenue (based on 14,756,000 U.S. tax returns at an average fee of $182.96, as reported in HRB’s 2011 Annual Report). GX 532 (Cobb Dep.) at 32; GX 565 at 19. 2SS Holdings, Inc. (“2SS”) is a Delaware corporation with its principal place of business in Cedar Rapids, Iowa. Compl. ¶ 10; Defs.’ Answer ¶ 10. 2SS owns 2nd Story Software, Inc., which offers DDIY products under the brand name “TaxACT.” GX 629 at 8-9. In the fiscal year ending April 30, 2011, TaxACT products generated approximately {half as much revenue as H&R Block}. GX 151 at 6. In the same year, consumers used TaxACT to electronically file approximately 5 million federal tax returns. GX 151 at 3-4. TA IX, L.P. (“TA”) is a private equity firm organized under the laws of Delaware with its headquarters in Boston, Massachusetts. Compl. ¶ 11; Defs.’ Answer ¶ 11. In December of 2004, TA purchased a majority interest in 2SS for $85 million, and as a result TA has majority 7 control of 2SS Holdings and 2nd Story Software. GX 55 (Greif Dep.) at 72-73; GX 28-3. C. The History Of TaxACT And The Proposed Transaction TaxACT was founded in 1998 by Lance Dunn and three others, with Mr. Dunn serving as president. Dunn, TT, 9/7/11 p.m., at 49-52. Before founding TaxACT, Mr. Dunn and the other co-founders of the company had worked at Parsons Technology, a software company that had created a DDIY tax preparation product called “Personal Tax Edge.” Id. at 49-52. In 1994, Intuit acquired Parsons Technology and continued to operate Personal Tax Edge as a separate product for approximately two years before merging it into its TurboTax product line. Id. at 51. Mr. Dunn testified that the business objective of founding TaxACT was “to make money selling value tax software which . . . was a category that did not exist at that time” because Intuit’s acquisition of Parsons Technology had eliminated Personal Tax Edge, which had previously occupied a value tax software niche. Id. at 52. Thus, TaxACT “recreated” the category or “niche that the Personal Tax Edge product line filled when it existed.” Id. Over the years, TaxACT has emphasized high-quality free product offerings as part of its business strategy. Id. at 53. TaxACT initially offered a DDIY tax preparation product that made it free to prepare and print a federal tax return, but TaxACT charged a fee for electronic filing (“e-filing”) or preparation of a state tax return. Id. at 54. Thus, from the beginning, TaxACT’s business strategy relied on promoting “free” or “freemium” products, in which a basic part of the service is offered for free and add-ons and extra features are sold for a price.4 As Mr. Dunn put it, “Free is an integral part of the value model. And the beauty of it is it has universal appeal. Everybody likes something for free.” Id. 4 The business model of offering free products and then soliciting customers to purchase additional, related features or services is sometimes referred to as “freemium.” See GX 130 (“H&R Block Strategic Planning Working Session, April 16 &17, 2010”) at 103 (“‘Freemium’ is a known market dynamic that has arisen in multiple product categories and will continue to grow.”). 8 Currently, TaxACT’s free product offering allows customers to prepare, print, and e-file a federal tax return completely for free. Id. at 54; GX 28-10 at 5-7. TaxACT’s “Deluxe” edition, which costs $9.95, contains additional features, such as the ability to import data from a return filed the prior year through TaxACT. GX 55-26; Dunn, TT, 9/7/11 p.m., at 91-92; GX 28-10 at 5-7; GX 28 (Dunn. Dep.) at 219. Customers who use TaxACT to prepare a state tax return in addition to a federal return pay either $14.95 for the state return in combination with the free federal product or $17.95 for the state return in combination with the “Deluxe” federal product. GX 55-26; Dunn, TT, 9/8/11 a.m., at 49. TaxACT’s prices have generally remained unchanged for the past decade. Dunn, TT, 9/7/11 p.m., at 91. The parties first began discussing the potential acquisition of TaxACT by HRB in July 2009. Bowen, TT, 9/15/11 p.m., at 14. During the fall of 2009, teams from HRB and TaxACT met to discuss the possibilities for the potential acquisition and HRB performed due diligence on TaxACT. See DX 244 at 8-9; Bowen, TT, 9/15/11 p.m., at 19-23, 26; DX 9527 at 35. Negotiations between the parties stalled in December 2009 and the proposed deal collapsed. Bowen, TT, 9/15/11 p.m., at 33. The CEOs of the two companies continued to discuss a potential acquisition through the spring of 2010, however. Id. at 34. Serious merger talks resumed in July 2010. Id. at 38-39; DX1005. In October 2010, the HRB Board of Directors approved a plan for HRB to acquire TaxACT. DX 600 at 12-13; Bowen, TT, 9/15/11 p.m., at 59-60. On October 13, 2010, HRB entered into a merger agreement with 2SS and TA. GX 120 at 1. Under this agreement, HRB would acquire control of 2SS for $287.5 million. GX 120 at 6; GX 119 at 1. HRB’s stated post- merger plan is to maintain both the HRB and TaxACT brands – with the HRB-brand focusing on higher priced-products and the TaxACT brand focusing on the lower-priced products. See 9 Bennett, TT, 9/6/11 a.m., at 101-102; DX 1005 at 1. HRB plans {redacted} ultimately to rely on TaxACT’s current technological platform and intends to give Mr. Dunn responsibility for running the combined firm’s entire DDIY business operation from Cedar Rapids, Iowa. Dunn, TT, 9/8/11 p.m. (sealed), at 14-16; see also Bennett, TT, 9/6/11 a.m., at 110. D. Free Products And The Free File Alliance The evolution of TaxACT’s free product offerings and the other free offerings in the DDIY market is important for understanding the claims in this case. The players in the DDIY market offer various “free” tax preparation products, but the features and functionality offered in these free products vary significantly, as do the ways in which these free products are ultimately combined with paid products to earn revenue. While the availability of some types of free product offers has long been a feature of the DDIY market, a spike in free offerings occurred during the last decade in parallel with the growth of e-filing. As a matter of public policy, the IRS actively promotes e-filing because it has an interest in efficient and accessible tax return preparation and filing. The Internal Revenue Service Restructuring and Reform Act of 1998 set a goal of having eighty percent of individual taxpayers e-filing their returns by 2007. IRS Stip., ECF No. 80, ¶ 2. The IRS is close to achieving that goal and the IRS Oversight Board has recommended that the 80 percent benchmark be achieved by 2012. Id. According to stipulated facts attested to by IRS employees, in 2001, the IRS adopted an initiative “to decrease the tax preparation and filing burden of wage earners by providing greater access to free online tax preparation and filing options for a significant number of taxpayers.” Id. ¶ 4. The IRS also determined that it could save a substantial amount of public money by encouraging filers to switch to e-filing, since e-filed returns are cheaper for the IRS to process. Id. ¶ 5. 10 The IRS determined that the most effective and efficient way to accomplish its goal of promoting access to free online tax preparation and filing options was to partner with a consortium of companies in the electronic tax preparation and filing industry. Id. ¶ 6; GX 297- D7 at E-2. In 2002, this consortium of companies formed Free File Alliance, LLC (“FFA”) in order to partner with the IRS on this initiative to promote free filing. IRS Stip. ¶ 6; GX 297-D7 at E-2. HRB, TaxACT, and Intuit are all members of the FFA, as are approximately fifteen smaller companies. See IRS Stip. ¶ 8; DX 328. On October 30, 2002, the IRS and the FFA entered into a “Free On-Line Electronic Tax Filing Agreement” to provide free online tax return preparation and filing to individual taxpayers. IRS Stip. ¶ 9. Pursuant to this agreement, members of the FFA would offer free, online tax preparation and filing services to taxpayers, and the IRS would provide taxpayers with links to those free services through a web page, hosted at irs.gov and accessible through another government website. Id. ¶ 12. HRB, TaxACT, and Intuit were among the original members to make free offers through the FFA. Id. ¶ 8. “In 2003, the first year in which free services were available to taxpayers through the FFA, none of the FFA members offered free services to all taxpayers.” Id. ¶ 14. Rather, each “member set eligibility criteria. Most members, including H&R Block, TaxACT, and Intuit, used adjusted gross income (‘AGI’) as a way to define which taxpayers were eligible” for their offers of free federal tax return preparation services. Id. “For example, H&R Block offered free services to taxpayers with an AGI of $28,000 or less.” Id. Some members that offered free federal return preparation services based on AGI also offered free services to taxpayers who met other conditions, such as eligibility to file a Form 1040EZ. Id. “Several members did not define eligibility based on AGI. Of the eleven FFA members that offered free services based on AGI, only TaxACT’s AGI-based offering was available to individuals with AGI over $33,000.” Id. 11 Specifically, TaxACT made its free federal services available exclusively to taxpayers who had AGI over $100,000 or were eligible to file a Form 1040EZ. Id. In 2004, the second year in which free services for federal returns were available to taxpayers through the FFA, TaxACT introduced a new offer through the FFA that offered free preparation and e-filing of federal returns for all taxpayers regardless of AGI or other limitations (“free for all”). See id. ¶ 15; Dunn, TT, 9/7/11 p.m., at 65, 78. After TaxACT introduced a free- for-all offer through the FFA, other companies followed by introducing federal free-for-all offers of their own. Dunn, TT, 9/7/11 p.m., at 78 (“After we offered free for everyone in 2003, in 2004, a lot of companies offered free for everyone on the FFA.”). According to Mr. Dunn’s testimony, after TaxACT made its FFA offer of a free federal product for all taxpayers, without any AGI or other limitations, other companies made efforts to restrict the wide availability of free offers on the FFA. Id. at 79. Specifically, according to Mr. Dunn, Intuit proposed that companies in the FFA collude by agreeing to restrict free offers. Id. Mr. Dunn and TaxACT opposed Intuit’s proposal and believed that it was “probably not legal for that group to restrain trade.” Id. Subsequently, HRB, Intuit and others successfully lobbied the IRS to implement restrictions on the number of taxpayers that could be covered by a free offer through the FFA website. GX 28 (Dunn Dep.) at 114-15; GX 28-4; GX 35 at HRB-DOJ-00912870; GX 569 (DuMars Dep.) at 108, 112-113; Ernst, TT, 9/7/11 a.m., 26-27; GX 41 at 4; GX 25 (TaxHawk Decl.) ¶ 16. HRB desired these restrictions because, among other things, it was concerned about how free-for-all offers would affect the pricing structure for the industry and believed that such offers might undermine the company’s ability to generate money through the paid side of its DDIY business. Ernst, TT, 9/7/11 a.m., at 26-27; GX 531 (Ciaramitaro Dep.) at 60-62; see also 12 GX 41 at 4; GX 25 (TaxHawk Decl.) ¶ 16. The IRS amended the FFA rules in October 2005 to prevent FFA members from making free-for-all offers. Dunn, TT, 9/7/11 p.m., at 78-79; Ernst, TT, 9/7/11 a.m., at 29; GX 42; GX 25 (TaxHawk Decl.) ¶ 16; GX 29 (Intuit Decl.) ¶ 9. Therefore, TaxACT could no longer make its free-for-all offer through the FFA. In tax year 2005, in response to restrictions that the IRS imposed on the scope of offers that could be made through the FFA, TaxACT became the first DDIY company to offer all tax payers a free DDIY product for preparation of federal returns directly on its website. Dunn, TT, 9/7/11 p.m., at 79-80; GX 28 (Dunn Dep.) at 122-23. Today, free offers in various forms are an entrenched part of the DDIY market. Dunn, TT, 9/8/11 a.m., 85; Defs.’ Opening Stmt., TT, 9/6/11 a.m., at 86-87. II. STANDARD OF REVIEW “Section 7 of the Clayton Act, 15 U.S.C. § 18, prohibits a corporation from acquiring ‘the whole or any part of the assets of another [corporation] engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” United States v. Sungard Data Sys., Inc., 172 F. Supp. 2d 172, 180 (D.D.C. 2001) (quoting 15 U.S.C. § 18). “The United States is authorized by Section 15 of the Clayton Act to seek an injunction to block a pending acquisition.” Id. (citing 15 U.S.C. § 25). “The United States has the ultimate burden of proving a Section 7 violation by a preponderance of the evidence.” Id. “To establish a Section 7 violation, plaintiff must show that a pending acquisition is reasonably likely to cause anticompetitive effects.” Id. (citing United States v. Penn-Olin Chem. 13 Co., 378 U.S. 158, 171 (1964)); see also United States v. Oracle Corp., 331 F. Supp. 2d 1098, 1109 (N.D. Cal. 2004). “Congress used the words ‘may be substantially to lessen competition’ (emphasis supplied), to indicate that its concern was with probabilities, not certainties.’” FTC v. H.J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir. 2001) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 323 (1962)). “Section 7 does not require proof that a merger or other acquisition has caused higher prices in the affected market. All that is necessary is that the merger create an appreciable danger of such consequences in the future.” Hosp. Corp. of Am. v. FTC, 807 F.2d 1381, 1389 (7th Cir. 1986). “As this Circuit explained in Heinz, 246 F.3d at 715, the decision in United States v. Baker Hughes Inc., 908 F.2d 981 (D.C. Cir. 1990), sets forth the analytical approach for establishing a Section 7 violation.”5 Sungard, 172 F. Supp. 2d at 180.6 “The basic outline of a section 7 horizontal acquisition case is familiar. By showing that a transaction will lead to undue concentration in the market for a particular product in a particular geographic area, the government establishes a presumption that the transaction will substantially lessen competition.” Baker Hughes, 908 F.2d at 982. To establish this presumption, the government must “show that the merger would produce ‘a firm controlling an undue percentage share of the relevant market, and [would] result [ ] in a significant increase in the concentration of firms in that market.’” Heinz, 246 F.3d at 715 (quoting United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 363 5 Two current Supreme Court justices, in their prior capacities as judges on the Court of Appeals, participated in the D.C. Circuit’s ruling in Baker Hughes. Then-Judge Clarence Thomas wrote the opinion and then-Judge Ruth Bader Ginsburg joined in it. 6 In their closing argument, the defendants chided the government for citing Clayton Act Section 7 cases brought by the Federal Trade Commission for the relevant standard to apply in this case rather than citing to United States v. Baker Hughes Inc., 908 F.2d 981, 982-83 (D.C. Cir. 1990), a case brought by the DOJ. Since this Circuit’s FTC precedents themselves rely heavily on the analytical approach set forth in Baker Hughes, the defendants’ distinction on this point is ultimately of little import. See FTC v. H.J. Heinz Co., 246 F.3d 708, 715 (D.C. Cir. 2001) (“In United States v. Baker Hughes Inc., 908 F.2d 981, 982-83 (D.C.Cir.1990), we explained the analytical approach by which the government establishes a section 7 violation.”). While a lesser showing is required to obtain preliminary relief in an FTC preliminary injunction case, as opposed to a full merits trial like this case, the Court must apply the Baker Hughes analytical framework in either type of Section 7 case. 14 (1963)) (alterations in original). Once the government has established this presumption, the burden shifts to the defendants to rebut the presumption by “show[ing] that the market-share statistics give an inaccurate account of the merger’s probable effects on competition in the relevant market.” Heinz, 246 F.3d at 715 (internal quotation omitted). “‘If the defendant successfully rebuts the presumption [of illegality], the burden of producing additional evidence of anticompetitive effect shifts to the government, and merges with the ultimate burden of persuasion, which remains with the government at all times.’” Id. (quoting Baker Hughes, 908 F.2d at 983). Ultimately, “[t]he Supreme Court has adopted a totality-of-the-circumstances approach to the statute, weighing a variety of factors to determine the effects of particular transactions on competition.” Baker Hughes, 908 F.2d at 984. III. DISCUSSION A. The Relevant Product Market “Merger analysis begins with defining the relevant product market.” FTC v. Swedish Match, 131 F. Supp. 2d 151, 156 (D.D.C. 2000) (citing Brown Shoe, 370 U.S. 294, 324 (1962)). “Defining the relevant market is critical in an antitrust case because the legality of the proposed merger[] in question almost always depends upon the market power of the parties involved.” Id. (quoting FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 45 (D.D.C. 1998)). Indeed, the relevant market definition is often “the key to the ultimate resolution of this type of case because of the relative implications of market power.”7 Id. 7 “A relevant market has two components: (1) the relevant product market and (2) the relevant geographic market. . . . The ‘relevant geographic market’ identifies the geographic area in which the defendants compete in marketing their products or services.” FTC v. CCC Holdings, Inc., 605 F. Supp. 2d 26, 37 (D.D.C. 2009). The parties have stipulated that the relevant geographic market in this case is worldwide. Joint Pre-Hearing Statement ¶ IX, C, 12. DDIY products are provided online and can be used by any individual worldwide – either within the United States or abroad – who needs to prepare and file a U.S. tax return. The products at issue in this case are not used for preparation of foreign tax returns. See Pl.’s Mot. For Prelim. Inj. at 29-30. The Court accepts the parties’ stipulation as to the relevant geographic market. 15 The government argues that the relevant market in this case consists of all DDIY products, but does not include assisted tax preparation or pen-and-paper. Under this view of the market, the acquisition in this case would result in a DDIY market that is dominated by two large players – H&R Block and Intuit – that together control approximately 90 percent of the market share, with the remaining 10 percent of the market divided amongst a plethora of smaller companies. In contrast, the defendants argue for a broader market that includes all tax preparation methods (“all methods”), comprised of DDIY, assisted, and pen-and-paper. Under this view of the market, the market concentration effects of this acquisition would be much smaller and would not lead to a situation in which two firms control 90 percent of the market. This broader view of the market rests primarily on the premise that providers of all methods of tax preparation compete with each other for the patronage of the same pool of customers – U.S. taxpayers. After carefully considering the evidence and arguments presented by all parties, the Court has concluded that the relevant market in this case is, as the DOJ contends, the market for digital do-it-yourself tax preparation products. A “relevant product market” is a term of art in antitrust analysis. The Supreme Court has set forth the general rule for defining a relevant product market: “The outer boundaries of a product market are determined by the reasonable interchangeability of use [by consumers] or the cross-elasticity of demand between the product itself and substitutes for it.” Brown Shoe, 370 U.S. at 325; see also United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956). In other words, courts look at “whether two products can be used for the same purpose, and, if so, whether and to what extent purchasers are willing to substitute one for the other.” FTC v. Staples, Inc., 970 F. Supp. 1066, 1074 (D.D.C. 1997) (citation omitted); see also Bon-Ton Stores, 16 Inc. v. May Dep’t Stores Co., 881 F. Supp. 860, 868 (W.D.N.Y. 1994) (citing Hayden Pub. Co. v. Cox Broad. Corp., 730 F.2d 64, 71 (2d Cir. 1984)). A broad, overall market may contain smaller markets which themselves “constitute product markets for antitrust purposes.”8 Brown Shoe, 370 U.S. at 325. “[T]he mere fact that a firm may be termed a competitor in the overall marketplace does not necessarily require that it be included in the relevant product market for antitrust purposes.” Staples, 970 F. Supp. at 1075. Traditionally, courts have held that the boundaries of a relevant product market within a broader market “may be determined by examining such practical indicia as industry or public recognition of the [relevant market] 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.” FTC v. Whole Foods Market, Inc. 548 F.3d 1028, 1037-38 (D.C. Cir. 2008) (Brown, J.) (quoting Brown Shoe, 370 U.S. at 325).9 See also FTC v. CCC Holdings, Inc., 605 F. Supp. 2d 26, 38 (D.D.C. 2009). These “practical indicia” of market boundaries may be viewed as evidentiary proxies for proof of substitutability and cross-elasticities of supply and demand. Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 218 (D.C. Cir. 1986). 8 Courts have sometimes referred to such markets-within-markets as “submarkets.” See Brown Shoe, 370 U.S. at 325; Whole Foods, 548 F.3d at 1037-38 (Brown, J.). Other courts and commentators have criticized this “submarket” terminology as unduly confusing, however. See 5C PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 533, at 251 (3d ed. 2007) (“Courts sometimes describe the closest substitutes as a ‘submarket’ within a larger ‘market’ of less-close substitutes. Although degrees of constraint do in fact vary, the ‘market’ for antitrust purposes is the one relevant to the particular legal issue at hand.”) (internal citations omitted); Geneva Pharms. Tech. Corp. v. Barr Labs, Inc., 386 F.3d 485, 496 (2d Cir. 2004) (“The term ‘submarket’ is somewhat of a misnomer, since the ‘submarket’ analysis simply clarifies whether two products are in fact ‘reasonable’ substitutes and are therefore part of the same market.”). 9 The D.C. Circuit’s decision in Whole Foods lacked a majority opinion. See Whole Foods, 548 F.3d at 1061 n.8 (Kavanaugh, J., dissenting). Judges Brown and Tatel filed separate opinions concurring in the judgment to reverse the District Court and Judge Kavanaugh, in dissent, would have affirmed. See id. at 1032 (Brown, J.); id. at 1041 (Tatel, J.); id. at 1051 n.1 (Kavanaugh, J., dissenting). Thus, in referring to the opinions in Whole Foods, the Court will indicate the name of the Judge whose opinion is cited. 17 An analytical method often used by courts to define a relevant market is to ask hypothetically whether it would be profitable to have a monopoly over a given set of substitutable products. If so, those products may constitute a relevant market. See 5C PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW (hereinafter, “Areeda & Hovenkamp”), ¶ 530a, at 226 (3d ed. 2007) (“[A] market can be seen as the array of producers of substitute products that could control price if united in a hypothetical cartel or as a hypothetical monopoly.”). This approach – sometimes called the “hypothetical monopolist test” – is endorsed by the Horizontal Merger Guidelines issued by the DOJ and Federal Trade Commission. See Fed. Trade Comm’n & U.S. Dep’t of Justice Horizontal Merger Guidelines (2010) (hereinafter, “Merger Guidelines”), § 4.1.1.10 In the merger context, this inquiry boils down to whether “a hypothetical profit-maximizing firm, not subject to price regulation, that was the only present and future seller of those products . . . likely would impose at least a small but significant and non-transitory increase in price (“SSNIP”) on at least one product in the market, including at least one product sold by one of the merging firms.” Id. The “small but significant and non- transitory increase in price,” or SSNIP, is typically assumed to be five percent or more. Id. § 4.1.2. Thus, the question here is whether it would be hypothetically useful to have a monopoly over all DDIY tax preparation products because the monopolist could then profitably raise prices for those products by five percent or more; or whether, to the contrary, there would be no reason to monopolize all DDIY tax preparation products because substitution and price competition with other methods of tax preparation would restrain any potential DDIY monopolist from profitably raising prices. In other words, would enough DDIY users switch to the assisted or 10 The Merger Guidelines are not binding upon this Court, but courts in antitrust cases often look to them as persuasive authority. See Staples, 970 F. Supp. at 1081-82. 18 pen-and-paper methods of tax preparation in response to a five-to-ten percent increase in DDIY prices to make such a price increase unprofitable? In evaluating the relevant product market here, the Court considers business documents from the defendants and others, the testimony of the fact witnesses, and the analyses of the parties’ expert economists. This evidence demonstrates that DDIY is the relevant product market in this case. 1. The Defendants’ Documents Show That DDIY Is The Relevant Product Market. When determining the relevant product market, courts often pay close attention to the defendants’ ordinary course of business documents. See, e.g., Staples, 970 F. Supp. at 1076; CCC Holdings, 605 F. Supp. 2d at 41-42. The government argues that the defendants’ ordinary course of business documents in this case “conclusively demonstrate that competition with other [DDIY] firms drive Defendants’ pricing decisions, quality improvements, and corporate strategy” for their own DDIY products—thus supporting the government’s view of the relevant market. Pl.’s Post-Trial Mem. at 7. The defendants contend that the government has relied on “select, ‘out-of-context’ snippets from documents,” and that the documents as a whole support the defendants’ view that the relevant product market is all methods of tax preparation. Defs.’ Post-Trial Mem. at 1. The Court finds that the documentary evidence in this case supports the conclusion that DDIY is the relevant product market. Internal TaxACT documents establish that TaxACT has viewed DDIY offerings by HRB and TurboTax as its primary competitors, that it has tracked their marketing, product offerings, and pricing, and that it has determined its own pricing and business strategy in relation to those companies’ DDIY products. See GX 295-16 (“Competitive Analysis” comparing the three companies); GX 102 (email explaining TaxACT is a “direct competitor” with HRB and Intuit’s 19 products); GX 55 (Greif Dep.) at 137-38 (describing TaxACT’s compilation of a routine, end-of- season competitive analysis that “typically” covers Intuit, HRB, and TaxACT). Confidential memoranda prepared by TaxACT’s investment bankers for potential private equity buyers of TaxACT identify HRB and TurboTax as TaxACT’s primary competitors in a DDIY market. See GX 7 (Greene Holcomb & Fisher “Confidential Memorandum”) at 14 (“The Company’s major competitors for both desktop and Internet-based income tax software and e-filing services include Intuit (the makers of TurboTax software) and H&R Block (the makers of TaxCut software).”); GX 134 (Deutsche Bank “Confidential Information Memorandum”) at 17 (“The Company’s two main competitors, Intuit and H&R Block. . .”); see also Dunn, TT, 9/7/11 p.m., at 97-104. These documents also recognize that TaxACT’s strategy for competing with Intuit and HRB is to offer a lower price for what it deems a superior product. GX 7 at 14 (“Relative to its two major competitors, 2nd Story has positioned its product offerings as being of equal or higher quality, and completely fulfilling the needs of a vast portion of the potential market. It also pursues a pricing strategy that positions its products and services meaningfully below either Intuit or H&R Block, in some instances free.”). While, as defendants point out, parts of these TaxACT documents also discuss the broader tax preparation industry, these documents make clear that TaxACT’s own view – and that conveyed by its investment bankers to potential buyers – is that the company primarily competes in a DDIY market against Intuit and HRB and that it develops its pricing and business strategy with that market and those competitors in mind. These documents are strong evidence that DDIY is the relevant product market. See Whole Foods, 548 F.3d at 1045 (Tatel, J.) (“[E]vidence of industry or public recognition of the submarket as a separate economic unit 20 matters because we assume that economic actors usually have accurate perceptions of economic realities.”) (internal quotation omitted). Internal HRB documents also evidence HRB’s perception of a discrete DDIY market or market segment. HRB and its outside consultants have tracked its digital competitors’ activities, prices, and product offerings. See GX 28-19 (“2009 Competitive Price Comparison”); GX 118 (independent analyst’s report analyzing digital competitors as one of three separate categories of competitors); GX 61-8 at 1 (slide on competition in “digital market” identifying TurboTax and TaxACT as competitors); GX 199 (HRB “digital strategy update” Powerpoint tracking features and prices for TurboTax and TaxACT); GX 188 (HRB spreadsheet comparing HRB, TurboTax, and TaxACT prices for various product offerings). Documents from HRB’s DDIY business have also referred to HRB, TaxACT, and TurboTax as the “Big Three” competitors in the DDIY market. GX 61-3 (“OCS Offsite Competitive Intelligence Review of TS07”) at 5; GX 61-4 at 1 (email referencing request for data from consultant regarding “big 3 digital tax prep companies”); see also GX 70 (email from head of HRB’s digital business stating its “only real direct competitors are turbotax in san diego and taxact in cedar rapids” [sic]); Ernst, TT, 9/7/11 a.m., at 13-14. Finally, the documents show that, in connection with a proposed acquisition of TaxACT, HRB identified the proposed transaction as a way to grow its digital “market share” and has measured TaxACT’s market share in a DDIY market. GX 130 at 96-99; GX 21-37 (projections from 2009 for different potential scenarios for acquisition of TaxACT, including their effect on DDIY market share); see also Newkirk, TT, 9/7/11 a.m., at 95-96 (explaining GX 21-37). All of these documents also provide evidence that DDIY is a relevant product market. The defendants acknowledge that “the merging parties certainly have documents that discuss each other and digital competitors generally, and even reference a digital market and the 21 ‘Big Three,’” but contend this evidence is insufficient to prove a market. Defs.’ Post-Trial Mem. at 9. Rather, the defendants argue that the documents show that the relevant market is all methods of tax preparation, especially in light of documented competition between DDIY providers and assisted providers for the same overall pool of U.S. taxpayers who are potential customers. See id. 9-10; see, e.g., DX 78 at 4 (Intuit document explaining 2011 strategic goal of acquiring tax store customers); GX 650 at 41 (Intuit document noting goal of acquiring tax store customers and specifically mentioning HRB). As discussed below, the Court disagrees and finds that the relevant product market is DDIY products. 2. The Relevant Product Market Does Not Include Assisted Tax Preparation Or Manual Preparation. It is beyond debate – and conceded by the plaintiff – that all methods of tax preparation are, to some degree, in competition. Pl.’s Post-Trial Mem. at 8. All tax preparation methods provide taxpayers with a means to perform the task of completing a tax return, but each method is starkly different. Thus, while providers of all tax preparation methods may compete at some level, this “does not necessarily require that [they] be included in the relevant product market for antitrust purposes.” Staples, 970 F. Supp. at 1075. DDIY tax preparation products differ from manual tax preparation and assisted tax preparation products in a number of meaningful ways. As compared to manual and assisted methods, DDIY products involve different technology, price, convenience level, time investment, mental effort and type of interaction by the consumer. Taken together, these different attributes make the consumer experience of using DDIY products quite distinct from other methods of tax preparation. See Whole Foods, 548 F.3d at 1037-38 (Brown, J.) (noting that a “product’s peculiar characteristics and uses” and “distinct prices” may distinguish a relevant market) (citing Brown Shoe, 370 U.S. at 325); see also, e.g., GX 130 at 140 (HRB internal analysis discussing convenience and price as factors differentiating DDIY and 22 assisted methods for consumers). The question for this court is whether DDIY and other methods of tax preparation are “reasonably interchangeable” so that it would not be profitable to have a monopoly over only DDIY products. a. Assisted Tax Preparation Is Not In The Relevant Product Market. Apart from the analysis of their economic expert, the defendants’ main argument for inclusion of assisted tax preparation in the relevant market is that DDIY and assisted companies compete for customers.11 As evidence for this point, the defendants emphasize that Intuit’s marketing efforts have targeted HRB’s assisted customers. See DX 78 at 3 (Intuit document noting strategic goal to “Beat Tax Store[s]”). While the evidence does show that companies in the DDIY and assisted markets all generally compete with each other for the same overall pool of potential customers – U.S. taxpayers – that fact does not necessarily mean that DDIY and assisted must be viewed as part of the same relevant product market. DDIY provides customers with tax preparation services through an entirely different method, technology, and user experience than assisted preparation. As Judge Tatel explained in Whole Foods: [W]hen the automobile was first invented, competing auto manufacturers obviously took customers primarily from companies selling horses and buggies, not from other auto manufacturers, but that hardly shows that cars and horse-drawn carriages should be treated as the same product market. That Whole Foods and Wild Oats have attracted many customers away from conventional grocery stores by offering extensive selections of natural and organic products thus tells us nothing about whether Whole Foods and Wild Oats should be treated as operating in the same market as conventional grocery stores. Indeed, courts have often found that sufficiently innovative retailers can constitute a distinct product market even when they take customers from existing retailers. Whole Foods, 548 F.3d at 1048; see also Staples, 970 F. Supp. at 1074-80 (finding a distinct market of office supply superstores despite competition from mail-order catalogues and stores carrying a broader range of merchandise). 11 The defendants’ primary argument for inclusion of both assisted and pen-and-paper in the relevant market is based upon their economic expert’s analysis of data derived from two consumer surveys commissioned by the defendants. The Court will analyze the arguments of the defendants’ expert economist separately below. 23 The key question for the Court is whether DDIY and assisted products are sufficiently close substitutes to constrain any anticompetitive DDIY pricing after the proposed merger. Evidence of the absence of close price competition between DDIY and assisted products makes clear that the answer to that question is no—and that DDIY is the relevant product market here. See Swedish Match, 131 F. Supp. 2d at 165 (“Distinct pricing is also a consideration” in determining the relevant product market) (citing Brown Shoe, 370 U.S. at 325). Significantly, despite some DDIY efforts to capture tax store customers, none of the major DDIY competitors sets their prices based on consideration of assisted prices. See, e.g., Ernst, TT, 9/7/11 a.m., at 35 (HRB set its digital and assisted prices separately); {redacted} (Dep.) at 183:18-25 (explaining that {redacted} does not consider assisted pricing in setting prices because its prices are already “substantially less than both tax stores and most professionals”). Indeed, there are quite significant price disparities between the average prices of DDIY and assisted products. The average price of TurboTax, the most popular DDIY brand is approximately $55. GX 293 (Intuit Dep.) at 21. The average price of HRB’s DDIY products is approximately $25. GX 296-7 at 6. Overall, the DDIY industry average price is $44.13. GX 121 at 57. In contrast, the typical price of an assisted tax return is significantly higher, in the range of $150-200.12 A 10 percent or even 20 percent price increase in the average price of DDIY would only move the average price up to $48.54 or $52.96, respectively – still substantially below the average price of assisted tax products. The overall lack of evidence of price competition between DDIY and assisted products supports the conclusion that DDIY is a separate relevant product market for evaluating this transaction, despite the fact that DDIY and assisted firms target their marketing efforts at the same pool of customers. 12 See GX 128 (HRB “TS10 Market Dynamics” presentation) at 38 {redacted}; see also id. {redacted}; GX 293 (Intuit Dep.) at 21:9-14 (“The average price of a tax store is in the range of $200.”); Bennett, TT, 9/6/11 p.m., at 100 (estimating $150 range for assisted returns offered at Jackson Hewitt and HRB offices at Wal-Mart locations). 24 The defendants point to some evidence that HRB sets prices for certain assisted products to compete with DDIY. For example, defendants note that in 2009, HRB “reduced prices on its assisted tax preparation services to $39 for federal 1040EZ preparation and $29 for state tax preparation to compete with and {redacted}” to DDIY. DFF ¶ 77a. These are limited product offerings for which prices appear well below even the 25th percentile price for HRB’s assisted products. See GX 128 (HRB “TS10 Market Dynamics” presentation) at 38 (noting, for Tax Season 2010, that the 25th percentile for prices at HRB stores was {higher than DDIY}). Relatedly, the defendants’ claim that prices for assisted and DDIY products “significantly overlap” is not strongly supported and relies on a comparison of the most limited, low-end assisted products with DDIY products generally. See DFF ¶ 78b (citing tax year 2009 data that show that 14 percent of customers using name-brand tax stores paid $50 or less and another 20 percent paid between $51-100); id. ¶ 78c-d (quoting prices for Jackson Hewitt’s preparation of form 1040EZ, a simplified tax form, at Wal-Mart and for HRB’s Second Look service, which actually only double-checks an already completed tax return for errors). In sum, while defendants’ have identified isolated instances in which assisted product offerings are priced lower than the average prices for typical assisted products, they do not and cannot demonstrate that this is generally the case. Testimony from HRB executives further supports treating DDIY as a relevant product market in evaluating this transaction. HRB’s DDIY and assisted businesses are run as separate business units. Bennett, TT, 9/6/11 a.m., at 106. Alan Bennett, who was the CEO of HRB in 2010 when the parties reached the proposed merger agreement, testified that “net-net,” he did not believe that HRB’s DDIY business had impacted its assisted business in terms of taking away 25 customers.13 Id. at 108; see also GX 1151 at 4 (HRB internal analysis stating “Online is not growing materially at the expense of assisted.”). Mark Ernst, HRB’s CEO from 2001 to 2007, also explained that, in his opinion based on research he reviewed while at HRB, the primary reason consumers switched between assisted and DDIY was because of “life events” that led to changes in tax status. Ernst, TT, 9/7/11 a.m., at 34-35. Finally, defendants argue that their broad relevant market is appropriate because there is “industry movement toward ‘hybrid’ products that combine some elements of both digital and assisted tax preparation.” Defs.’ Post-Trial Mem. at 11. Based on the evidence presented at the hearing, however, it would be premature for the Court to identify any trend toward hybrid products. In fact, neither Intuit nor TaxACT presently offers a hybrid product and the defendants openly concede that HRB’s current hybrid product has had “somewhat limited success,” which defendants attribute to “technical issues” and a “lack of consistent marketing.” Id. at 11 n.16. {redacted} {T}he Court finds it unlikely that there will be a sufficiently large scale shift into these products in the immediate future to compel the conclusion that DDIY and assisted products make up the same relevant product market. b. Manual Tax Preparation Is Not In The Relevant Product Market. The defendants also argue that manual tax preparation, or pen-and-paper, should be included in the relevant product market. At the outset, the Court notes that pen-and-paper is not a “product” at all; it is the task of filling out a tax return by oneself without any interactive assistance. Even so, the defendants argue pen-and-paper should be included in the relevant product market because it acts as a “significant competitive constraint” on DDIY. Defs.’ Post- 13 By “net-net,” Mr. Bennett meant that while there is customer switching between the DDIY and assisted businesses, the total share of customers in each has been relatively stable over the past few years, such that Mr. Bennett could conclude that the two business lines “do not steal customers back and forth net.” Bennett, TT, 9/6/11 a.m., at 108. 26 Trial Mem. at 11. The defendants’ argument relies primarily on two factors. First, the defendants’ cite the results of a 2011 email survey of TaxACT customers. See id. For reasons detailed in the following section, the Court declines to rely on this email survey. Second, the defendants point to documents and testimony indicating that TaxACT has considered possible diversion to pen-and-paper in setting its prices. See id. at 11-12. The Court finds that pen-and-paper is not part of the relevant market because it does not believe a sufficient number of consumers would switch to pen-and-paper in response to a small, but significant increase in DDIY prices. The possibility of preparing one’s own tax return necessarily constrains the prices of other methods of preparation at some level. For example, if the price of DDIY and assisted products were raised to $1 million per tax return, surely all but the most well-heeled taxpayers would switch to pen-and-paper. Yet, at the more practical price increase levels that trigger antitrust concern – the typical five to ten percent price increase of the SSNIP test – pen-and-paper preparation is unlikely to provide a meaningful restraint for DDIY products, which currently sell for an average price of $44.13. GX 121 at 57. The government well illustrated the overly broad nature of defendants’ proposed relevant market by posing to the defendants’ expert the hypothetical question of whether “sitting at home and drinking chicken soup [would be] part of the market for [manufactured] cold remedies?” Meyer, TT, 9/13/11 a.m., at 65. The defendants’ expert responded that the real “question is if the price of cold medicines went up sufficiently, would people turn to chicken soup?” Id. As an initial matter, in contrast to the defendants’ expert, the Court doubts that it would ever be legally appropriate to define a relevant product market that included manufactured cold remedies and ordinary chicken soup. This conclusion flows from the deep functional differences between those products. Setting that issue aside, however, a price has increased “sufficiently” to trigger 27 antitrust concern at the level of a five to ten percent small, but significant non-transitory increase in price. Just as chicken soup is unlikely to constrain the price of manufactured cold remedies sufficiently, the Court concludes that a SSNIP in DDIY would not be constrained by people turning to pen-and-paper. First, the share of returns prepared via pen-and-paper has dwindled over the past decade, as the DDIY market has grown. Bennett, TT, 9/6/11 a.m, at 118; GX 296 (Houseworth Dep.) at 66-68. Second, while pen-and-paper filers have been a net source of new customers for DDIY companies, both HRB and {redacted} executives have testified that they do not believe their DDIY products compete closely with pen-and-paper methods. {redacted} (Dep.) at 37:20-38:10; see GX 296 (Houseworth Dep.) 89-90. Third, courts in antitrust cases frequently exclude similar “self-supply” substitutes from relevant product markets. See, e.g., FTC v. H.J. Heinz Co., 116 F. Supp. 2d 190, 195 (D.D.C. 2000), rev’d on other grounds, 246 F.3d 708 (D.C. Cir. 2001) (noting that homemade baby food and breast milk should not be included in the jarred baby food market even though substitution was possible because “the Supreme Court’s interchangeability test refers to products.”); CCC Holdings, 605 F. Supp. 2d at 41-42 (excluding books that can be used to perform insurance loss valuations by hand from market for loss valuation software); United States v. Visa U.S.A. Inc., 163 F. Supp. 2d 322, 338 (S.D.N.Y. 2001) (excluding cash and checks from general purpose credit card market). The main case the defendants rely on to show that “self-supply” substitutes should be included in the relevant market involved a consumer market consisting of vertically integrated companies and explicitly distinguished cases, such as this one, involving markets of individual consumers. In United States v. Sungard Data Systems, Inc., Judge Huvelle found that disaster recovery computer systems developed internally by companies were in the same relevant product market as shared data recovery systems provided by outside vendors. Sungard, 172 F. Supp. 2d 28 at 187-89. The Sungard court, however, distinguished the case before it – which involved vertical integration – from the situation in Heinz, the case involving the market for jarred baby food, because “homemade baby food is not an aspect of vertical integration . . . [and] individual consumers cannot vertically integrate by producing a product that they would otherwise have to purchase.” Id. at 187 n.15. In finding that in-house computer systems were included in its relevant product market, the Sungard court cited the following example from Areeda & Hovenkamp ¶ 535e regarding vertical integration: If iron ore is the relevant market and if shares are best measured there by sales, then internally used ore—so-called captive output—is part of the ore market even though it is not sold as such. In measuring the market power of a defendant selling iron ore, the ore used internally by other firms constrains the defendant’s ability to profit by raising ore prices to monopoly levels. The higher ore price may induce an integrated firm to expand its ore production—to supply others in direct competition with the alleged monopolist or to expand its own steel production and thereby reduce the demand of other steel makers for ore, or both. Hence, captive output constrains the defendant regardless of whether integrated firms sell their ore to other steel makers previously purchasing from the defendant. In sum, the integrated firm’s ore output belongs in the market. Id. at 186 n.14. This rationale for including “self-supply” in a relevant product market does not appear to apply to the DDIY market in which the consumers are individuals and not also potential traders or producers. While some diversion from DDIY to manual filing may occur in response to a SSNIP, the Court finds that it would likely be limited and marginal. The functional experience of using a DDIY product is meaningfully different from the self-service task of filling out tax forms independently. Manual completion of a tax return requires different tools, effort, resources, and time investment by a consumer than use of either DDIY or assisted methods. The following discussion from United States v. Visa U.S.A. Inc. regarding why cash and checks should not be included in the credit card market is instructive here: 29 [A]lthough it is literally true that, in a general sense, cash and checks compete with general purpose cards as an option for payment by consumers and that growth in payments via cards takes share from cash and checks in some instances, cash and checks do not drive many of the means of competition in the general purpose card market. In this respect, [the expert’s] analogy of the general purpose card market to that for airplane travel is illustrative. [The expert] argues that while it is true that at the margin there is some competition for customers among planes, trains, cars and buses, the reality is that airplane travel is a distinct product in which airlines are the principal drivers of competition. Any airline that had monopoly power over airline travel could raise prices or limit output without significant concern about competition from other forms of transportation. The same holds true for competition among general purpose credit and charge cards. Visa U.S.A. Inc., 163 F. Supp. 2d at 338. Here, the same analogy to airplane travel holds true for competition among DDIY providers, who provide a distinct product for completion of tax returns. Indeed, the pen-and-paper method, in which the consumer essentially relies on his or her own labor to prepare a tax return, is perhaps most analogous to walking as opposed to purchasing a ride on any means of transportation. In sum, filling out a tax return manually is not reasonably interchangeable with DDIY products that effectively fill out the tax return with data input provided by the consumer. Inclusion of all possible methods of tax preparation, including pen-and-paper, in the relevant product market also violates the principle that the relevant product market should ordinarily be defined as the smallest product market that will satisfy the hypothetical monopolist test. See Merger Guidelines § 4.1.1 (“When the Agencies rely on market shares and concentration, they usually do so in the smallest relevant market satisfying the hypothetical monopolist test.”); see also Warren-Boulton, TT, 9/8/11 p.m., at 35-36. Indeed, the defendants’ inclusion of pen-and-paper in the relevant market ignores at least one obvious, smaller market possibility that they might have proposed – the combined market of all DDIY and assisted tax preparation products. It is hardly plausible that a monopolist of this market – to which the only alternative would be pen-and-paper – could not impose a SSNIP. 30 The defendants’ proposed relevant market of all methods of tax return preparation is so broadly defined that, as the plaintiff’s expert testified, there are no conceivable alternatives besides going to jail, fleeing to Canada, or not earning any taxable income. Warren-Boulton, TT, 9/8/11 p.m., at 35-36. As the plaintiff’s expert put it, “if you’re talking about the market for all tax preparation, you’re talking about a market where, in economist terms, demand is completely [in]elastic. There are no alternatives.” Id. at 35. In such circumstances, the usual tools of antitrust analysis – such as the hypothetical monopolist test – cease being useful because it is self-evident that a monopolist of all forms of tax preparation, including self-preparation, could impose a small, but significant price increase. Indeed, a monopolist in that situation could essentially name any price since taxpayers would have no alternative but to pay it. As the plaintiff’s expert testified, defining a market that broadly negates the entire purpose of defining a relevant market in an antitrust case. You want to define a relevant market in an antitrust case so then [you can calculate] shares and the change in shares makes sense. I don’t want to go to infinity . . . I want to define a relevant market under . . .the smallest market principle, which is I want to define the relevant market so that if a hypothetical monopolist . . . did manage to control all of those products, they would impose a significant price increase, large enough to be of concern but not so large as to make the whole exercise pointless. Id. at 35-36. The Court agrees with this assessment and finds the defendants’ proposed relevant market to be overbroad. 3. The Economic Expert Testimony Tends To Confirm That DDIY Is The Relevant Product Market. Both the plaintiff and the defendants presented testimony from expert economists to support their view of the relevant product market.14 In addition to their testimony at the hearing, 14 The plaintiff presented expert testimony on market definition from Frederick R. Warren-Boulton, an economist at MiCRA, an economics consulting and research firm. GX 121 (Warren-Boulton Rep.) at 1. Dr. Warren-Boulton holds a B.A. from Yale University, a Ph.D. in economics from Princeton University, and formerly served as the chief economist for the Antitrust Division of the U.S. Department of Justice. Id. Dr. Warren-Boulton has previously served as an expert witness in other antitrust cases, including cases challenging the possible 31 these expert witnesses also provided a detailed expert report and an affidavit summarizing their analysis and conclusions. The Court finds that the analysis performed by the plaintiff’s expert tends to confirm that DDIY is a relevant product market, although the available data in this case limited the predictive power of the plaintiff’s expert’s economic models. The Court also finds that it cannot draw any conclusions from defendants’ expert’s analysis because of severe shortcomings in the underlying consumer survey data upon which the defendants’ expert relied. a. Plaintiff’s Expert - Dr. Warren-Boulton The plaintiff’s expert, Dr. Warren-Boulton, found the relevant product market to be DDIY. He determined that a hypothetical monopolist of DDIY products could profitably impose a SSNIP for at least one DDIY product, and that consumer substitution to assisted methods or pen-and-paper would be insufficient to defeat the SSNIP. GX 121 (Warren-Boulton Rep.) at 12. Dr. Warren-Boulton began his analysis by postulating that DDIY was the relevant product market and then he used two principal analytical tests to confirm the validity of that assumption. He began by testing DDIY as a relevant market for a few reasons. First, he concluded that the parties’ DDIY products are substantially similar in terms of functionality. GX 121 (Warren-Boulton Rep.) at 12-18. Second, he concluded from his review of the defendants’ business documents that they viewed DDIY as a discrete product market when competing in the anticompetitive effects of a merger or acquisition. Id. (noting involvement in FTC v. Staples, Inc., 970 F. Supp. 1066, 1074 (D.D.C. 1997)). The defendants presented expert testimony from Christine Siegwarth Meyer, an economist at National Economic Research Associates, Inc., an economics consulting and research firm. DX 17 (Meyer Rep.) at 1. Dr. Meyer holds a B.A. from the United States Military Academy at West Point, a Ph.D. in economics from the Massachusetts Institute of Technology, and has taught economics at the university level. Id. Dr. Meyer has not previously provided expert testimony regarding the possible anticompetitive effects of a merger or acquisition. Meyer, TT, 9/13/11 a.m., at 39. 32 ordinary course of business. Id. Third, he ruled out including pen-and-paper and assisted products in the relevant product market based on a consideration of various data. Id. at 24-32. Dr. Warren-Boulton’s decision to begin the relevant market analysis with DDIY was appropriate. See Areeda & Hovenkamp ¶ 536, at 287 (“[T]wo products are provisionally part of the same market [for hypothetical monopolist analysis] when they employ similar technologies and similar costs and customers use them interchangeably. . . In cases of doubt, [products] should generally be excluded from the provisional market, for incorrect exclusions will ultimately be brought into the market via the price increase methodology.”). The parties’ DDIY products all provide a fundamentally similar service and a similar user experience for the consumer when compared with other methods of tax preparation. The DDIY consumer sits down at a computer and interacts with the DDIY software, which prompts the consumer for information and ultimately completes the consumer’s tax return. This experience is qualitatively different than that of hiring a tax professional or figuring out how to complete one’s own tax return manually. Various other evidence in the record also supports the fundamental functional similarity of the technology underlying the parties’ DDIY products – perhaps most notably the testimony that post-merger, HRB plans to migrate {redacted} onto TaxACT’s software “engine” {redacted}. See Dunn, TT, 9/8/11 p.m. (sealed), at 16-17. As discussed in detail above, various documentary evidence suggests that the parties treat DDIY as a distinct product market in the ordinary course of business. Dr. Warren-Boulton also considered whether the pen-and-paper and assisted methods should be included in the provisional relevant market, as the defendants contend, and concluded that they should not be. 33 Dr. Warren-Boulton ruled out including pen-and-paper in the relevant product market, concluding instead that historical tax return data reflects “a gradual migration of customers to [DDIY] from more traditional methods like pen-and paper.” GX 121 (Warren-Boulton Rep.) at 24. The percentage of returns prepared by pen-and-paper has fallen considerably over the last decade, while the percentage of DDIY has grown. Id. Changes in the yearly percentage shares of taxpayers using pen-and-paper do not appear correlated to changes in the yearly average price of DDIY. Id. at 27. Finally, based on IRS data, Dr. Warren-Boulton observed that taxpayers who switched from DDIY to pen-and-paper for tax seasons 2008 and 2009 on average experienced a decrease in tax return complexity, suggesting that much switching from DDIY products to pen-and-paper is driven by such complexity decreases.15 Dr. Warren-Boulton also ruled out including the assisted tax preparation methods in the relevant market based on consideration of several factors. He reviewed HRB documents that conclude that growth in DDIY has not come at the expense of HRB’s assisted business. Id. at 28. Testimony from HRB employees, including the former CEO, also reinforced the same conclusion. Id. at 28-29. He also cited HRB internal studies, which concluded that consumers who have switched from DDIY to assisted are likely to have experienced a change in tax complexity. He found that HRB’s internal conclusion was consistent with IRS switching data, which also indicated a correlation between switching from DDIY to assisted and an increase in tax complexity. Id. at 29-30. Finally, Dr. Warren-Boulton noted that, based on data from tax years 2004-2009, increases in the relative price of assisted products were not associated with decreases in the relative market share of assisted products and increases in the relative market 15 Switching, as discussed further below, refers to the switching of consumers between different products for any reason. The IRS categorizes tax returns into one of three complexity categories: Simple, Intermediate, and Complex. Accordingly, the IRS data only reflects complexity changes that are sufficient to result in assignment to a different one of the three categories. 34 share of DDIY, as might be expected if DDIY and assisted prices moved in a single, price- responsive market. Id. at 32. Therefore, having determined that the best provisional relevant market is DDIY and not all methods of tax preparation, Dr. Warren-Boulton then performed two economic tests to confirm that a hypothetical monopolist of all DDIY products could profitably impose a SSNIP. If these economic tests indicated that a hypothetical monopolist could not profitably impose a SSNIP, then the tests would call for the relevant market to be expanded. The tests, however, validated the relevant market as DDIY, as detailed below. The economic tests Dr. Warren-Boulton applied relied heavily upon switching data from the IRS. Switching refers to the number of consumers who switch between different products for any reason. In any given year, many taxpayers switch from the tax preparation method they used in the prior year to a new method. Since the IRS processes all U.S. tax returns each year and tracks data about the methods of tax preparation that taxpayers used, there is ample, reliable data that market analysts can use to see how many taxpayers switched between methods each year. The IRS data, however, provides little direct insight about why any given taxpayer switched methods of preparation. The switch could have been for reasons of price, convenience, changes in the consumer’s personal situation, an increase or decrease in tax complexity, a loss of confidence in the prior method of preparation, or any other reason. As opposed to switching, 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. The IRS switching data does not directly measure diversion because switching can occur for any number of reasons, many of which may not involve price. 35 Unfortunately, no direct, reliable data on diversion exists in this case. The plaintiff’s expert argues, however, that the IRS switching data can provide at least some estimate of diversion. While this approach is not without its limitations, as discussed further below, the Court finds that the switching data is at least somewhat indicative of likely diversion ratios. Moreover, the IRS data is highly reliable because (1) the sample size is enormous, since it encompasses over 100 million taxpayers, and (2) the data reflects actual historical tax return filing patterns as opposed to predicted behavior.16 The defendant’s expert, who criticizes reliance on this switching data, suggests instead that a better analysis can be based upon simulated diversion data derived from consumer surveys commissioned by the defendants. As described more fully below, however, the shortcomings of these survey-derived diversion data are so substantial that the Court cannot rely on them. i. Critical Loss Analysis The first economic test Dr. Warren-Boulton performed is known as a “critical loss” analysis. This test attempts to calculate “the largest amount of sales that a monopolist can lose before a price increase becomes unprofitable.” Swedish Match, 131 F. Supp. 2d at 160. Dr. Warren-Boulton calculated that for a 10 percent price increase in DDIY, the price increase would 16 One limitation in the IRS data set is that if a taxpayer uses a DDIY product to prepare the return, but then prints and mails the return instead of e-filing it, the IRS does not attribute the filing to the DDIY provider and instead lists it in a generic “v-coded” pool of returns. At the hearing, the defendants’ criticized the IRS switching data set as problematic on these grounds, suggesting that up to 30 million returns may be “v-coded.” See Warren-Boulton, TT 9/20/11 a.m., at 21-22. As Dr. Warren-Boulton fully addressed in his expert report, however, a “conservative method for dealing with this issue is to drop all v-coded returns from the analysis,” which would still leave well over 100 million returns in the IRS data set. Id.; GX 121 (Warren-Boulton Rep.) at 47. The defendants did not identify any reason the v-coded data would be likely to skew the data set. Thus, even if the v-coded data is disregarded, the IRS data set remains extensive and reliable. It is also worth noting that the IRS data does not distinguish between the DDIY providers’ various products, so only firm-level switching rates are available. GX 121 (Warren-Boulton Rep.) at 47 36 be profitable if the resulting lost sales did not surpass 16.7 percent.17 GX 121 (Warren-Boulton Rep.) at 34. Dr. Warren-Boulton then sought to compare this critical loss threshold with “aggregate diversion ratios.” The aggregate diversion ratio for any given product represents the proportion of lost sales that are recaptured by all other firms in the proposed market as the result of a price increase. Since these lost sales are recaptured within the proposed market, they are not lost to the hypothetical monopolist. According to Dr. Warren-Boulton, economists have shown that if the aggregate diversion ratio to products inside the proposed relevant market exceeds the critical loss threshold, then the critical loss analysis indicates that a SSNIP at that level would be profitable for a hypothetical monopolist. Id. at 34 (citing Michael Katz and Carl Shapiro, Critical Loss: Let’s Tell the Whole Story, ANTITRUST (Spring 2003) at 49 -56); see also Warren- Boulton, TT, 9/9/11 p.m., at 33-34. Because no diversion data is available, Dr. Warren-Boulton relied instead on IRS switching data to estimate aggregate diversion ratios. Id. These data show that of the taxpayers who left HRB’s DDIY products between tax year 2007 and 2008,18 57 percent went to other DDIY providers. Of those who left TaxACT, 53 percent stayed in DDIY, and for TurboTax, 39 percent stayed in DDIY. Id. at 34-35. Since these numbers are all well above the 16.7 percent critical loss threshold, Dr. Warren-Boulton concluded a 10 percent SSNIP in the DDIY market would be profitable for a hypothetical monopolist. In cross-examining Dr. Warren-Boulton, the defendants suggested that the critical loss test is meaningless because it would seem to validate numerous different candidate markets 17 The formula for critical loss is L = X/(X + M), where L is the critical loss, X is the percentage price increase, and M is the hypothetical monopolist’s gross margin. Assuming a 50 percent margin, which Dr. Warren-Boulton claims is a conservative estimate for firms in the DDIY market, then the critical loss for a 10 percent SSNIP is 16.7 percent. 16.7 percent is the result of applying 10 percent and 50 percent in the formula X/(X+M): .167 = .1/(.1+.5). 18 These are the last two years for which this data was available. 37 consisting of various assortments of tax preparation businesses. Warren-Boulton, TT, 9/9/11 p.m., at 20-42. For example, the defendants demonstrated that the test could also validate a market consisting of just HRB and Intuit or a market consisting of just TaxACT and Intuit. See DX 9802. Dr. Warren-Boulton noted in his testimony, however, that such markets are “smaller, irrelevant” markets for evaluating the proposed transaction between HRB and TaxACT. Warren-Boulton, TT, 9/9/11 p.m., at 41; see also Areeda & Hovenkamp ¶ 533c, at 254 (“[C]ourts correctly search for a ‘relevant market’ – that is a market relevant to the particular legal issue being litigated.”). The fact that critical loss analysis would validate other groupings of businesses does not undermine Dr. Warren-Boulton’s reliance on it to validate DDIY as the relevant market in this case.19 Indeed, rather than urging a smaller relevant market definition, the defendants urged the Court to define the market much more broadly. Nonetheless, the Court appreciates the defendants’ point that the critical loss test alone cannot answer the relevant market inquiry. While some inappropriate proposed relevant markets would be ruled out by the critical loss test, the fact that the test could still confirm multiple relevant markets means that the Court must rely on additional evidence in reaching the single, appropriate market definition. ii. Merger Simulation In addition to the critical loss analysis, Dr. Warren-Boulton also performed an economic simulation of a merger among the HRB, TaxACT, and Intuit. GX 121 (Warren-Boulton Rep.) at 19 The defendants also referred obliquely in cross examination to an academic debate surrounding the proper way to perform critical loss analysis. Warren-Boulton, TT, 9/9/11 p.m., at 23. Dr. Warren-Boulton acknowledged his awareness of the existence of this debate and the defendants’ counsel did not pursue the topic further. Id. The Court has no basis for disputing Dr. Warren-Boulton’s application of critical loss analysis based merely on the existence of unspecified academic critiques. The Court notes that the critical loss analysis is specifically endorsed by the Merger Guidelines as a method for implementing the SSNIP test, see Merger Guidelines § 4.1.3, and has been accepted by courts as a standard methodology. See FTC v. CCC Holdings Inc., 605 F. Supp. 2d 26, 40 n.16 (D.D.C. 2009) (“Critical loss analysis is a standard tool used by economists to study potentially relevant markets.”). The court in CCC Holdings ultimately did not rely on the expert’s application of critical loss analysis due to what the court deemed a “gap” or oversight in the expert’s reasoning, but the court nonetheless adopted the same relevant product market that the critical loss analysis had validated. See id. at 40-41. 38 35. This simulation, known as a Bertrand model, predicted that a monopolist of the DDIY products of these three companies would find it profit-maximizing to raise TaxACT’s price by 83 percent, HRB’s price by 37 percent and TurboTax’s price by 11 percent absent efficiencies. Id. Dr. Warren Boulton concluded that this simulation also confirms that DDIY is the relevant product market.20 iii. Critiques of Dr. Warren-Boulton’s Analysis The defendants’ expert, Dr. Meyer, critiques Dr. Warren-Boulton’s analysis in numerous ways. Her most fundamental critique is that his reliance on switching data as a proxy for diversion is flawed because switching can occur for any number of reasons and, therefore, it is not necessarily indicative of what products consumers would switch to in response to a price increase. DX 17 (Meyer Rep.) at 59-60. Dr. Meyer is certainly correct in this critique. Dr. Warren-Boulton, however, testified forthrightly about the limitations involved in relying on switching data as a proxy for diversion: Using migration [i.e., switching] doesn’t really answer, or it doesn’t answer the precise question of [the] merger guidelines, which of course is, where would you go if there was a small but significant price increase? It basically asks the question, where did you go? And you could go for a lot of reasons. You could go because the price has changed, you could go because the quality changes, you could go because you changed. Complexity changes. And there’s a lot of evidence in the record that people switch because of changes in their own complexity. But using migration percentages, or using those gives you, I think, a reasonable second estimate of diversion ratios, because it’s really asking the question, you know, if you went to some -- if for some reason you decided to go from HRB to TaxACT, for all those reasons, is that roughly about the same percentages if you went due to a price increase? Warren-Boulton, TT, 9/9/11 a.m., at 13-14. Thus, switching data does not necessarily indicate diversion for the reasons both experts have identified. In light of all the evidence in the record and the general similarity of DDIY products, the Court credits Dr. Warren-Boulton’s conclusion 20 Dr. Warren-Boulton’s merger simulation is addressed further below in the Court’s discussion of unilateral effects in Section III.B.2.c. 39 that it was reasonable to use switching data as a proxy for diversion, especially since no more refined historical data apparently exists. Bearing in mind the shortcomings of the switching data, the Court will not treat Dr. Warren-Boulton’s hypothetical monopolist analysis as conclusive. The Court will treat it as another data point suggesting that DDIY is the correct relevant market, however. Another major critique of Dr. Warren-Boulton’s hypothetical monopolist analysis – and one that the defendants repeatedly emphasized at the hearing – is that Dr. Warren-Boulton decided “arbitrarily to exclude some alternatives that are closer substitutes than the products that he included.” DX 17 (Meyer Rep.) at 70; see Meyer, TT, 9/12/11 p.m., at 20-22. As Dr. Meyer put it at the hearing, “Dr. Warren-Boulton’s relevant market is a miscellaneous set of unconnected links, because it doesn’t include . . . the closest substitute to H&R Block [At Home], which is assisted tax preparation. It doesn’t include pen and paper, which is the closest substitute to TaxACT.” Meyer, TT, 9/12/11 p.m., at 24-25. Dr. Meyer identified the “closest substitutes” to the merging parties’ products using simulated diversion data. As discussed below, the Court finds this data unreliable and declines to rely upon it. Dr. Meyer opines, however, that Dr. Warren-Boulton failed to include the closest substitutes for the defendants’ products in his market, even if switching data is treated as a proxy for diversion, as Dr. Warren- Boulton suggests. For example, Dr. Meyer states that “11.2% of TaxACT’s customers in TY2007 switched to assisted preparation in TY2008, while only 2.7% switched to H&R Block At Home and 9.1% switched to TurboTax.” DX 17 (Meyer Rep.) at 72. Thus, the defendants contend Dr. Warren-Boulton violated the following principle from the Merger Guidelines: “When applying the hypothetical monopolist test to define a market around a product offered by one of the merging firms, if the market includes a second product, the Agencies will normally 40 also include a third product if that third product is a closer substitute for the first product than is the second product.” Id. at 72 (quoting Merger Guidelines § 4.1.1). The government persuasively illustrated the key flaw in this critique during the cross- examination of the defendants’ expert. See Meyer, TT, 9/13/11 a.m., at 90-96. Simply put, when determining the “closest substitutes” for products within the DDIY category, Dr. Meyer looked at diversion to individual DDIY brands, such as TurboTax and H&R Block At Home, but when assessing substitutes outside the DDIY category, Dr. Meyer lumped all products and methods together into large, aggregated market categories, such as “assisted” or “pen-and- paper.” See id. If, instead, DDIY products are grouped together as an aggregated category, similar to the treatment of assisted and pen-and-paper in Dr. Meyer’s analysis, then the IRS switching data would indicate that other DDIY products are the closest substitutes for both the DDIY products of HRB and TaxACT. See GTX 15, 16 (illustrating this analysis). For HRB, the numbers show 56.8 percent switching to other DDIY, 36.9 percent to assisted, and 6.3 percent to pen-and-paper. GTX 15. For TaxACT, the numbers show 52.7 percent switching to other DDIY, 40.1 percent to assisted, and 7.3 percent to pen-and-paper. GTX 16. Some of Dr. Meyer’s additional critiques have more merit. For example, one datum Dr. Warren-Boulton relied on in his analysis was the outcome of an advertising study showing that HRB’s sales {were affected} in cities where TaxACT pursued an advertising campaign. See GX 121 (Warren-Boulton Rep.) at 43. The Court accepts Dr. Meyer’s critique that few conclusions can be drawn from this observation because the observed correlation could have been due to other variables – for example, the advertising of a third competitor like TurboTax. See DX 17 (Meyer Rep.) at 69. Similarly, Dr. Warren-Boulton’s observations that changes in relative 41 market share of DDIY, assisted, and pen-and-paper do not appear correlated to changes in relative price could also have been affected by confounding variables. Id. at 67. b. Defendants’ Expert - Dr. Meyer Dr. Meyer found the relevant product market to be all methods of tax preparation, including DDIY, assisted, and pen-and-paper. Her conclusion rested on various factors, including an analysis of documents and testimony. See, e.g., id. at 15. This Court, however, has already discussed its own analysis of the relevant documents and testimony above. Therefore, the Court will focus now on Dr. Meyer’s analysis of pricing data and, in particular, her use of and reliance on data derived from customer surveys commissioned by the defendants. Dr. Meyer found that assisted preparation competes with DDIY in part because the assisted method is the most popular method of tax preparation across all complexity levels. See id. at 12-13. Dr. Meyer concedes, however, that “taxpayers with the most complex tax returns are the most likely to use [assisted preparation].” Id. Indeed, her data show that this effect is pronounced, with approximately 70 percent of filers of complex returns using assisted and approximately 44 percent of filers of simple returns using assisted. Id. DDIY, by contrast, accounts for approximately 37 percent of simple returns and 23 percent of complex returns. Id. If anything, these data indicate that assisted products are linked to the needs of consumers with complex returns, suggesting a partially different consumer profile from DDIY products. Dr. Meyer also noted that the pricing of DDIY and assisted products overlaps, but her analysis of this overlap rests primarily on comparing high-end DDIY products, such as HRB’s Best of Both product,21 with low-end assisted products, such as Jackson Hewitt’s offering of 21 The Best of Both product, as the name implies, actually combines aspects of DDIY and assisted. It enables a return completed on HRB’s DDIY product to be reviewed by a tax professional. See DX 17 (Meyer Rep.) at 13 n.44. Thus, it is hardly surprising that this “hybrid” product, which features such exhaustive service, is priced more expensively than a typical DDIY product. 42 limited, simple return preparation at Wal-Mart. See id. at 13-14. Dr. Meyer concedes that the median price of assisted is higher than the median DDIY price, see id. at 13, and that is the more useful point of comparison. Apart from these comparisons and her conclusions about how industry participants view the market based on her review of documents and testimony in the record, Dr. Meyer’s definition of the relevant market rests primarily on her analysis of simulated diversion data obtained from a “pricing simulator” created for HRB in 2009 and an email survey conducted by TaxACT in 2011. See id. at 17-20. These two sources for her conclusions are discussed seriatim below. i. Pricing Simulator Dr. Meyer asserts in her report that the pricing simulator “created for HRB in 2009, provides the only direct test of the likely diversion from HRB’s [DDIY] products in reaction to a change in price.” Id. at 17. The simulator itself is a pricing model that runs as a dynamic Excel spreadsheet. See Meyer, TT, 9/13/11 a.m., at 42. Dr. Meyer’s report in several instances relies upon an internal HRB Powerpoint presentation that reflects the simulator’s data output under several different scenarios. See, e.g., DX 17 (Meyer Rep.) at 37 n.155 (citing the Powerpoint). As Dr. Meyer describes, the “simulator was prepared using a discrete choice survey of 6,119 respondents.” Id. at 17. She explains that “[t]he respondents were shown five pricing scenarios, and the options included online DIY options, software DIY options, assisted tax preparation options, and other DIY options (including pen-and-paper and friends/family).” Id. Dr. Meyer further states that the “pricing of the various options changed across scenarios” and a “conjoint analysis was conducted to analyze the effect of a change in the price of each product on its own sales and the sales of the other tax preparation options.” Id. 43 Based on the pricing simulator’s results, Dr. Meyer calculated diversion ratios for DDIY products. Dr. Meyer found that “the largest diversion from HRB’s [DDIY products], in the event of a price increase, is to CPAs and accountants.” Id. at 18. She found the “second largest diversion from HRB’s [DDIY products]” was to pen-and-paper. Id. at 19-20. In addition, “the fourth largest diversion is to HRB retail stores.” Id. at 18. Accordingly, Dr. Meyer concluded that assisted preparation and pen-and-paper were the closest substitutes to HRB’s DDIY products and should be included in the relevant market. There is a critical flaw in the design of the pricing simulator, however, that renders conclusions based on its output unreliable. Despite Dr. Meyer’s assertion that the “pricing of the various options changed across [the] scenarios” presented to the survey respondents, not all of the options in the survey underlying the simulator actually had prices associated with them. See Meyer, TT, 9/13/11 a.m., at 27-28. Several “non-priced choice options” were available to the survey respondents and these non-priced options included, importantly, “CPA or Accountant,” “H&R Block Retail Office,” and “Paper & Pencil.” DX 9231 (May 2009 Pricing Simulator Powerpoint) at 4. Thus, while the pricing of the various options changed for some products across the different scenarios presented in the survey, no prices at all were associated with these critical “non-priced choice options.” The fact that the pricing simulator survey failed to assign any prices to these particular products is, of course, especially significant given Dr. Meyer’s findings that the highest diversion from HRB DDIY was to CPAs and then to pen-and-paper. DX 17 (Meyer Rep.) at 18. Indeed, the conclusion that the largest diversion from HRB’s DDIY products would be to CPAs is puzzling on its face. This outcome is counterintuitive because CPAs in general tend to be the most expensive form of tax preparation assistance, while DDIY tends to be the least expensive. 44 See GTX 14. The Court finds that these surprising results are most likely due to the fact that the survey did not, in fact, assign any price at all to the CPA option. Due to this flaw in the survey’s design, respondents may well have selected the CPA option and the other non-priced options without even attempting to consider price as a factor in their decision. Accordingly, the Court finds that it simply cannot rely on the diversion ratios predicted by the simulator. Additional problems with the pricing simulator also render its output unreliable. As Dr. Warren-Boulton noted in his rebuttal of Dr. Meyer’s report, the compilation of pricing simulator data which Dr. Meyer relied upon to calculate her diversion ratios contains results that appear to violate what is “[p]erhaps the most fundamental principle in economics.” See GX 665 (Warren- Boulton Reply Rep.) at 9-10. Increasing the price of one HRB DDIY product in the simulation, TaxCut Online Basic, appears to increase the quantity of the product sold, holding other variables constant. Id. This anomaly violates the fundamental economic principle that “demand curves almost always slope downward,” which holds that, all other things being equal, consumers buy less of a product when the price goes up. See id. In another anomalous result, Dr. Warren-Boulton found that, based on the simulator data, cutting the price of TaxCut Online Basic from $29.95 to $14.95 approximately doubles its predicted market share, but cutting the price only to $19.95 greatly reduces its market share.22 Id. Dr. Warren-Boulton also found that analysis of different print outs of simulator data in the HRB Powerpoint may yield inexplicably different results. For example, relying on the data on one page of the simulator Powerpoint, Dr. Meyer determined that the “the diversion rate from HRB to TaxACT is only 1.6 percent.” DX 17 (Meyer Rep.) at 37. Yet, Dr. Warren-Boulton applied the same methodology for calculating 22 Dr. Meyer testified at the hearing that these anomalies are not reflected in the underlying simulator Excel data, but rather appear only in the printouts of simulator data contained in the internal HRB Powerpoint. In addition, Dr. Meyer explained that she redid her calculations excluding the anomalous data and came up with the same conclusions. See Meyer, TT, 9/12/11 p.m., at 45-47. Dr. Meyer never identified the source or cause of the anomalies, however. Id. at 49. 45 the diversion rate to the simulator data reflected on another slide of the same Powerpoint purporting to show the same simulator data as applied to a different scenario. This calculation yielded the “wildly different estimate” of a 32.4 percent diversion rate from HRB to TaxACT. See GX 665 (Warren-Boulton Reply Rep.) at 10. These inconsistent and anomalous results provide additional reasons to discredit the diversion ratios Dr. Meyer predicted from the simulator data. ii. 2011 Email Survey Dr. Meyer’s analysis also relied on a 2011 email survey of TaxACT customers commissioned by the defendants.23 See DX 17 (Meyer Rep.) at 20, 38. In April 2011, TaxACT and HRB jointly commissioned this survey “to determine to which products TaxACT’s customers would switch if those customers were displeased with TaxACT because of price, quality, or functionality.” Id. at 20. The survey asked one primary question: “If you had become dissatisfied with TaxACT’s price, functionality, or quality, which of these products or services would you have considered using to prepare your federal taxes?” GX 604 (Survey Summary) at 1. The survey then offered the respondents a list of other products or services from which to choose and instructed them to select all applicable options. Id. The list of options that respondents were given varied somewhat depending on the respondents’ filing status and the payments they had made for their 2011 tax returns.24 Id. A follow-up question asked the respondents to narrow their selections to a single choice. Id. 23 Prior to the hearing in this case, the government filed a motion in limine to exclude this survey from evidence and to limit Dr. Meyer’s opinion to the extent it relied on the survey. See ECF No. 60. The government argued that the survey’s wording and methodology made it inherently unreliable and therefore inadmissible. While the Court noted that the government had identified a number of defects in the methodology and wording of the survey, the Court concluded that these defects did not undermine the survey and the expert’s reliance on it so overwhelmingly as to render the survey inadmissible, especially in a bench trial. See Memorandum Opinion and Order on Motion in Limine, September 6, 2011, ECF No. 84. 24 The response options varied among four different categories of filers, which are discussed further below. For example, the list of options presented to filers who completed a free federal tax return and no state return were: “I 46 The research firm conducting the survey initially sent out 46,899 email requests to TaxACT customers inviting them to participate in the survey and then subsequently targeted 24,898 customers who had purchased a federal tax return product but not a state product. Id. Survey respondents were also asked screening questions to determine their membership in one of four categories of customers: (1) those who paid to complete both a federal and state tax return; (2) those who completed a free federal return and paid to complete a state return; (3) those who completed a paid federal return but did not complete a state return; and (4) those who completed a free federal return and did not complete a state return. Id. A total of 1,089 customers responded to the survey. Id. at 1-3. The response rates for the four categories of customers were: (1) 2.45 percent for paid federal / paid state filing (422); (2) 2.08 percent for free federal / paid state filing (245); (3) 0.6 percent for paid federal / no state filing (182); and (4) 1.7 percent for free federal / no state filing (240). Id. Dr. Meyer opined that “this survey is closer to the concept of a diversion ratio than are data on overall switching between products.” DX 17 (Meyer Rep.) at 20 n.85. Based on the survey’s results, she concluded that the survey “provides direct evidence that digital DIY products compete with pen-and-paper” because the percentage of TaxACT customers who reported that, if they were dissatisfied with TaxACT, they would switch to pen-and-paper in each group ranged from 27 to 34 percent. DX 17 (Meyer Rep.) at 20. Dr. Meyer also noted that the survey showed that few TaxACT customers would switch to H&R Block At Home, since only 4 to 10 percent of respondents selected that option. Id. at 38. Accordingly, Dr. Meyer found this outcome indicative that “HRB is not a particularly close competitor to TaxACT.” Id. would prepare myself without help,” “TurboTax Free Edition,” “H&R Block at Home Free Edition,” “Free TaxUSA Free Edition,” “Complete Tax Free Basic,” “An Accountant,” “I would use a product on FFA [i.e., Free File Alliance],” “TaxSlayer Free Edition,” “Jackson Hewitt Free Basic,” “Tax$imple Free Basic,” and “Other.” GX604 at 2. 47 In response to Dr. Meyer’s reliance upon this survey, the government submitted a rebuttal expert report from Dr. Ravi Dhar, a professor of management at Yale University, which credibly critiques the survey on several levels.25 GX 623 (Dhar Rep.). Most fundamentally, the government points out that the phrasing of the survey question – which asks about dissatisfaction with “TaxACT’s price, functionality, or quality” – appears to ask a hypothetical question about switching, not diversion based solely on a price change. Since the phrasing of the survey question conflates customer concerns about price, functionality, or quality, the government argues that the survey cannot shed any light on customer reactions to price changes alone. See id. at 5. Further, to the extent that the wording of the question addresses price, it does not ask about a change in price, but rather suggests a change in the customer’s satisfaction with TaxACT’s existing price. See id. At the hearing, Dr. Meyer explained that she viewed the email survey data as “closer to diversion than is pure switching data” because switching could occur for any reason at all, while the survey only asked about potential switching due to dissatisfaction with “price, functionality, or quality.” Meyer, TT, 9/13/11 a.m., at 87. Yet the Court finds that almost any reason for switching from a product could be characterized as dissatisfaction with the “functionality” or “quality” offered by the product in some respect. Therefore, the survey question does not come much closer to identifying diversion ratios than pure switching data does. Moreover, since there is extensive IRS data reflecting actual switching behavior in the marketplace – as opposed to the hypothetical switching behavior asked about in the email survey – the Court will not rely on the “diversion ratios” suggested by the 2011 email survey. Furthermore, additional defects in the 2011 email survey’s methodology also render the reliability of its findings questionable. First, the high level of non-response to the defendants’ 25 Dr. Dhar did not testify in person at the hearing, but provided an expert report and affidavit. 48 email invitations to participate in the survey could have biased the results. Dr. Dhar explained that the “level of nonresponse . . . is extremely high (more than 98%)” and that the “extremely low response rates makes it difficult to determine whether the results were impacted by a certain segment who were systematically more likely to respond to the survey (e.g., those who were price sensitive or time insensitive) in relation to those who did not respond.” GX 623 (Dhar Rep.) at 10. The Court agrees that non-response bias is a potential pitfall of the survey. See University of Kansas v. Sinks, No. 06-2341, 2008 WL 755065, at *4 (D. Kan. Mar. 19, 2008) (noting, in trademark case, that a consumer survey response rate of “2.16% appears, by any standard, to be quite low.”). Second, by providing survey respondents with a pre-selected list of alternative options, rather than letting respondents respond organically, the survey leads respondents to think about the market for tax preparation services in the same terms that the defendants do, which may have led respondents to select options they otherwise would not have selected. Since the survey’s question essentially asks about hypothetical switching, and since the actual IRS switching data in this case reflect a much larger sample size without the methodological deficiencies of the 2011 survey, the Court declines to rely on the purported diversion ratios calculated from the email survey. On the whole, the Court views Dr. Warren-Boulton’s expert analysis as more persuasive than Dr. Meyer’s.26 First, Dr. Warren-Boulton’s testimony was generally more credible than Dr. Meyer’s.27 Second, the diversion ratios that Dr. Meyer calculated from the pricing simulator and the 2011 email survey are unreliable, as discussed above. Without these simulated diversion 26 Of course, the Court remains cognizant that the plaintiff bears the burden of proof in demonstrating the relevant market. 27 For example, Dr. Meyer’s description of the pricing simulator survey as one in which the “pricing of the various options changed across scenarios” was inaccurate insofar as several of the most significant products for the purposes of Dr. Meyer’s analysis did not have any prices associated with them at all. See discussion supra. 49 ratios, little remains of Dr. Meyer’s expert conclusions apart from her analysis of documents in the record. Dr. Warren-Boulton’s analysis is not without its limitations. The main shortcoming for his approach is that he relied on switching data as a proxy for diversion. Since there is evidence in the record that switching among different products in the broader tax preparation industry occurs for reasons other than price competition, switching cannot serve as a complete proxy for diversion. Even so, the Court credits Dr. Warren-Boulton’s conclusion that switching data can provide a “reasonable second estimate” of diversion ratios here. Therefore, the Court finds that Dr. Warren-Boulton’s analysis tends to confirm that the relevant market is DDIY, although the Court would not rely on his analysis exclusively. As explained above, however, the full body of evidence in this case makes clear that DDIY is the correct relevant market for evaluating this merger. B. Likely Effect on Competition 1. The Plaintiff’s Prima Facie Case Having defined the relevant market as DDIY tax preparation products, “the Court must next consider the likely effects of the proposed acquisition on competition within that market.” Swedish Match, 131 F. Supp. 2d at 166. The government must now make out its prima facie case by showing “that the merger would produce ‘a firm controlling an undue percentage share of the relevant market, and [would] result[ ] in a significant increase in the concentration of firms in that market.’” Heinz, 246 F.3d at 715 (quoting Philadelphia Nat’l Bank, 374 U.S. at 363). “Such a showing establishes a ‘presumption’ that the merger will substantially lessen competition.” Id. 50 “Market concentration, or the lack thereof, is often measured by the Herfindahl- Hirschmann Index (‘HHI’).” Id. at 716. “The HHI is calculated by totaling the squares of the market shares of every firm in the relevant market. For example, a market with ten firms having market shares of 20%, 17%, 13%, 12%, 10%, 10%, 8%, 5%, 3% and 2% has an HHI of 1304 (202 + 172 + 132 + 122 + 102 + 102 + 82 + 52 +32 +22).” Id. at 715 n.9. Sufficiently large HHI figures establish the government’s prima facie case that a merger is anticompetitive. Id. Under the Horizontal Merger Guidelines, markets with an HHI above 2500 are considered “highly concentrated” and mergers “resulting in highly concentrated markets that involve an increase in the HHI of more than 200 points will be presumed to be likely to enhance market power.” Merger Guidelines § 5.3. In this case, market concentration as measured by HHI is currently 4,291, indicating a highly concentrated market under the Merger Guidelines. GX 121 (Warren-Boulton Rep.) at 38. The most recent measures of market share show Intuit with 62.2 percent of the market, HRB with 15.6 percent, and TaxACT with 12.8 percent. GX 27. These market share calculations are based on data provided by the IRS for federal tax filings for 2010, the most recent data available. The defendants argue that market share calculations based exclusively on federal filing data are insufficient to meet the plaintiff’s burden in establishing its alleged relevant product market, which includes both federal and state filings. Defs.’ Post-Trial Mem. at 12-13. The Court rejects this argument. State tax return products are typically sold as add-ons to or in combination with federal return products and the Court finds that there is little reason to conclude that the market share proportions within the state DDIY segment would be significantly different from federal DDIY. See GX 600 at 8 (HRB market research study stating that “[t]he desire to file State and Federal taxes together, and, inherently, for ease/convenience overruled all 51 other rationales for the method chosen for State taxes.”). While, as defendants point out, many customers of federal tax return DDIY products do not also purchase state returns, that may be because they live in states without income tax or because their state returns are simple enough to prepare very easily without assistance. See Dunn, TT, 9/8/11 a.m., at 48-49. A reliable, reasonable, close approximation of relevant market share data is sufficient, however. FTC v. PPG Indus., Inc., 798 F.2d 1500, 1505 (D.C. Cir. 1986). Further, the defendants’ own ordinary course of business documents analyze the market based on IRS federal e-file data, without reference to state filings, even though the defendants’ clearly sell state tax return products. See, e.g., GX 27. The proposed acquisition in this case would give the combined firm a 28.4 percent market share and will increase the HHI by approximately 400, resulting in a post-acquisition HHI of 4,691. Id. These HHI levels are high enough to create a presumption of anticompetitive effects. See, e.g., Heinz, 246 F.3d at 716 (three-firm to two-firm merger that would have increased HHI by 510 points from 4,775 created presumption of anticompetitive effects by a “wide margin”); Swedish Match, 131 F. Supp. 2d at 166-67 (60 percent market share and 4,733 HHI established presumption). Accordingly, the government has established a prima facie case of anticompetitive effects. “Upon the showing of a prima facie case, the burden shifts to defendants to show that traditional economic theories of the competitive effects of market concentration are not an accurate indicator of the merger’s probable effect on competition in these markets or that the procompetitive effects of the merger are likely to outweigh any potential anticompetitive effects.” CCC Holdings, 605 F. Supp. 2d at 46. “The courts have not established a clear standard that the merging parties must meet in order to rebut a prima facie case, other than to 52 advise that ‘[t]he more compelling the prima facie case, the more evidence the defendant must present to rebut [the presumption] successfully.’” Id. at 46-47 (quoting Baker Hughes, 908 F.2d at 991). Even in cases where the government has made a strong prima facie showing: [i]mposing a heavy burden of production on a defendant would be particularly anomalous where, as here, it is easy to establish a prima facie case. The government, after all, can carry its initial burden of production simply by presenting market concentration statistics. To allow the government virtually to rest its case at that point, leaving the defendant to prove the core of the dispute, would grossly inflate the role of statistics in actions brought under section 7. The Herfindahl-Hirschman Index cannot guarantee litigation victories. Baker Hughes, 908 F.2d at 992. Thus, ultimately,“[t]he Supreme Court has adopted a totality-of- the-circumstances approach to the [Clayton Act], weighing a variety of factors to determine the effects of particular transactions on competition.” Id. at 984. With these observations in mind, the Court will evaluate the parties’ evidence and arguments about the likely effect of the transaction on competition in the DDIY market. 2. Defendants’ Rebuttal Arguments a. Barriers to Entry Defendants argue that the likelihood of expansion by existing DDIY companies besides Intuit, HRB, and TaxACT will offset any potential anticompetitive effects from the merger. Courts have held that likely entry or expansion by other competitors can counteract anticompetitive effects that would otherwise be expected. See Heinz, 246 F.3d at 717 n.13 (“Barriers to entry are important in evaluating whether market concentration statistics accurately reflect the pre- and likely post-merger competitive picture.”); Baker Hughes, 908 F.2d at 987 (“In the absence of significant barriers, a company probably cannot maintain supracompetitive pricing for any length of time.”). According to the Merger Guidelines, entry or expansion must be “timely, likely, and sufficient in its magnitude, character, and scope to deter or counteract the competitive effects of concern.” Merger Guidelines § 9; see also CCC Holdings, 605 F. Supp. 53 2d at 47; United States v. Visa USA, Inc., 163 F. Supp. 2d 322, 342 (S.D.N.Y. 2001) (entry must be “timely, likely, and [of a] sufficient scale to deter or counteract any anticompetitive restraints”). “Determining whether there is ease of entry hinges upon an analysis of barriers to new firms entering the market or existing firms expanding into new regions of the market.” CCC Holdings, 605 F. Supp. 2d at 47 (quoting FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 55 (D.D.C. 1998)). In this case, the parties essentially agree that the proper focus of this inquiry is on the likelihood of expansion by existing competitors rather than new entry into the market.28 See Defs.’ Post-Trial Mem. at 21-22. Since the government has established its prima facie case, the defendants carry the burden to show that ease of expansion is sufficient “to fill the competitive void that will result if [defendants are] permitted to purchase” their acquisition target. Swedish Match, 131 F. Supp. 2d at 169. In describing the competitive landscape, the defendants note there are eighteen companies offering various DDIY products through the FFA. Defs.’ Post-Trial Mem. at 22. Most of these companies are very small-time operators, however. The defendants acknowledge this fact, but nevertheless contend that the companies “TaxSlayer and TaxHawk are the two largest and most poised to replicate the scale and strength of TaxACT.” Id. at 23. Witnesses from TaxSlayer and TaxHawk were the only witnesses from other DDIY companies to testify at the hearing. As such, the Court’s ease of expansion analysis will focus on whether these two competitors are poised to expand in a way that is “timely, likely, and sufficient in its magnitude, 28 New entrants to the market would not only face all of the barriers to expansion already faced by the existing small firms offering DDIY products, they would also have to develop their own products, including a software platform and a sufficient level of tax expertise. For entry to be considered timely, it typically must occur within approximately two years post-merger. See Commentary on the Horizontal Merger Guidelines (2006) at 45-46 (discussing prior Merger Guidelines § 3.2, which specified that timely entry should occur within two years). It is unlikely that an entirely new entrant to the market could compete meaningfully with the established DDIY firms within that time frame. 54 character, and scope to deter or counteract” any potential anticompetitive effects resulting from the merger. TaxHawk runs five different websites, including FreeTaxUSA.com, that all market the same underlying DDIY product. Kimber, TT, 9/12/11 a.m., at 12, 40. TaxHawk was founded in 2001, three years after TaxACT, although it has a significantly smaller market share of 3.2 percent. Id. at 11; GX 27. TaxHawk’s vice-president and co-founder, Mr. Dane Kimber, testified that the company has the technical infrastructure to grow by five to seven times the number of customers in any given year. Kimber, TT, 9/12/11 a.m., at 21. TaxHawk’s marketing strategy relies substantially on search engine advertising and search term optimization, including by using the FreeTaxUSA.com domain name, which contains the keywords “free” and “tax.” See id. at 19-27. Despite having been in business for a decade, its products are functionally more limited than those of Intuit, HRB, and TaxACT in various ways. See PFF ¶ 185. Although TaxHawk services the forms that cover most taxpayers, its program does not service all federal forms, it excludes two states’ forms in their entirety, and it does not service city income tax forms for major cities that have income taxes – notably, New York City. Kimber, TT, 9/12/11 a.m., at 44. In fact, Mr. Kimber testified that the company would likely need another decade before its DDIY products could fully support all the tax forms. Id. at 45. The reason is that TaxHawk is what Mr. Kimber “like[s] to call . . . a ‘lifestyle’ company. We like the lifestyle we have as owners. We want our employees to have a life, if you will. I do feel we have the expertise to [expand functionality] more rapidly, but we choose not to.” Id. Mr. Kimber also testified that TaxHawk had suddenly experienced an unprecedented growth rate of over 60 percent since April 2011, id. at 20-21, but that the company had not done any analysis to attempt to explain this unanticipated (and presumably welcome) growth. Id. at 39. 55 TaxHawk’s relaxed attitude toward its business stands in stark contrast to the entrepreneurial verve that was apparent throughout the testimony of Mr. Dunn and that has been rewarded by the impressive growth of TaxACT over the years. In short, TaxHawk is a very different company from TaxACT. TaxHawk is a small company that has developed a string of search-engine-optimized DDIY websites, which deliver a sufficient income stream to sustain its owners’ comfortable lifestyle, without requiring maximal effort on their part. While TaxHawk’s decision to prioritize a relaxed lifestyle over robust competition and innovation is certainly a valid one, expansion from TaxHawk that would allow it to compete “on the same playing field” as the merged company appears unlikely. Chicago Bridge & Iron Co. N.V. v. FTC, 534 F.3d 410, 430 (5th Cir. 2008). After TaxHawk, TaxSlayer is the next largest DDIY competitor, with a 2.7 percent market share. GX 27. TaxSlayer.com launched in 2003, although the same company started selling a software product to tax professionals several years earlier. Rhodes, TT, 9/12/11 a.m., at 71. TaxSlayer is part of the same corporate family as Rhodes Murphy, a tax firm that provides assisted [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2663375. Public record. Not legal advice.