# FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 1 of 189 * PUBLIC * > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A71516c022722d349 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 1 of 189 * PUBLIC * PUBLIC : FOLEY 1400 16TH STREET SUITE 200 DENVER, CO 80202 720.437.2000 TEL 720.437.2200 FAX FOLEY.COM FOLEY & LARDNER LLP WRITER’S DIRECT LINE 720.437.2034 dhazel@foley.com October 16, 2024 Via Email April Tabor Secretary of the Commission U.S. Federal Trade Commission electronicfilings@ftc.gov atabor@ftc.gov Re: In the Matter of Civil Investigative Demand to Hargrove & Associates, Inc, FTC File No. 211-0191 Dear Ms. Tabor: On behalf of Hargrove & Associates, Inc. (“HAI”), we are submitting the following materials in support of HAI’s Petition to Quash the Civil Investigative Demand dated September 16, 2024:            HAI’s Petition to Quash or Limit the Civil Investigative Demand; Exhibit A, the Civil Investigative Demand to HAI; Exhibit B, Affidavit of Todd Snell; Exhibit B-1, HAI Bylaws; Exhibit B-2, Master Services Agreement; Exhibit B-3, AEM Market Share Statistics Policy & Procedure Manual; Exhibit C, FTC Email Correspondence dated September 12, 2024; Exhibit D, FTC Letter dated October 4, 2024; Exhibit E, FTC Letter dated October 10, 2024; Statement of Counsel Pursuant to 16 C.F.R. § 2.10; and Request for Confidential Treatment. In accordance with HAI's request for confidential treatment, we are submitting a public version of the filing and a non-public, confidential version of the filing. The public version of the filing includes a redacted version of the Petition to Quash and a redacted version of Exhibits B, B-1 and B-2. Please let us know if you have any questions. Sincerely, /s/ Diane R. Hazel Diane R. Hazel Enclosures FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 2 of 189 * PUBLIC * PUBLIC UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION In the Matter of Civil Investigative Demand to Hargrove & Associates, Inc. FTC File No. 211-0191 Hargrove & Associates, Inc.’s Petition to Quash or Limit Civil Investigative Demand October 16, 2024 Michael J. Lockerby Foley & Lardner LLP 3000 K Street N.W., Suite 600 Washington, D.C. 20007 P: 202.945.6079 MLockerby@foley.com Diane R. Hazel Foley & Lardner LLP 1400 16th Street, Suite 200 Denver, CO 80202 P: 720.437.2000 DHazel@foley.com William C. McCaughey Foley & Lardner LLP 90 Park Ave, 37th Floor New York, NY 10016 P: 212.338.3425 WMccaughey@foley.com Quynh-Nhu Truong Foley & Lardner LLP 1000 Louisiana St., Suite 2000 Houston, Texas 77007 P: 713.276.5070 Qtruong@foley.com Counsel for Petitioner FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 3 of 189 * PUBLIC * PUBLIC INTRODUCTION Hargrove & Associates, Inc. (“HAI”) hereby files its Petition to Quash or Limit the Civil Investigative Demand, FTC File No. 211-0191 (“HAI’s CID”) issued by the Federal Trade Commission (the “FTC”) and served on September 16, 2024.1 HAI is a Minnesota based data processing and business analytics company. (Ex. B, Todd Snell Decl. ¶ 3.) HAI creates, develops, and operates managed data and information systems for trade associations to compile and publish key aggregated industry statistics that companies then use to plan and manage their businesses. (Id. ¶ 5.) The stated purpose of the FTC’s CID is “[t]o determine whether Deere & Company, or any other person, has engaged in or is engaging in unfair, deceptive, anticompetitive, collusive, coercive, predatory, exploitative, or exclusionary acts or practices in or affecting commerce related to the repair of agricultural equipment in violation of Section 5 of the Federal Trade Commission Act.” (Ex. A.)2 The CID consists of seven specifications requesting various data sets and reports relating to agricultural equipment from January 1, 2015, to present. Notably, Specification 1 seeks confidential information submitted to HAI from members of the Association of Equipment Manufacturers (“AEM”) that report their sales information through HAI’s portal, and Specification 2 seeks confidential market share information that HAI provides to individual AEM members reflecting each individual member’s respective shares. FTC staff have assured counsel that neither HAI nor AEM is the target of the FTC investigation at issue. HAI seeks to quash or limit the CID because it is overbroad and unduly burdensome to HAI. The CID seeks confidential and commercially sensitive information belonging to individual 1 A true and correct copy of the CID is attached as Exhibit A. The FTC’s resolution attached to the CID to HAI also makes clear that the FTC’s investigation is directed at “any repair restrictions.” 2 2 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 4 of 189 * PUBLIC * PUBLIC AEM members that submit data to HAI for aggregate reporting. HAI’s business model is built on the trust of the manufacturers that belong to trade associations for which HAI provides services and in the ability of HAI to secure and maintain the confidentiality of their proprietary business information. (Ex. B, Snell Decl. ¶ 5.) Disclosing the confidential data of AEM members would subject HAI to potential claims for breach of contract and unauthorized disclosure of trade secrets and also threatens to undermine trust in HAI among AEM members that submit confidential information to HAI on the condition that it not be disclosed to any third parties without the AEM member’s consent. (Id. ¶ 15.) The production of this proprietary member data threatens not only HAI’s reputation and customer goodwill but also its viability as a going concern. (Id.) Accordingly, the CID should be quashed in its entirety, or at the very least, Specifications 1 and 2 should be quashed. BACKGROUND I. AEM AND HAI’S RELATIONSHIP HAI works with trade associations such as AEM to create, develop, and operate managed data and information systems. (Ex. B, Snell Decl. ¶ 5.) HAI has provided data processes and analytical services to AEM and its members since 1989. (Id. ¶ 6.) HAI’s data collection and reporting services are governed by a Master Services Agreement dated January 1, 2022, between HAI and AEM (the “MSA”).3 (Id. ¶ 7.)4 Under the MSA, HAI hosts a portal to which AEM members submit their proprietary sales data about the volume of their agricultural equipment sales with the understanding that their sales data will not be shared at an individual level with anyone else. (Id. ¶ 9.) In return, AEM members receive aggregate, anonymized reports showing total 3 See Exhibit B-2. HAI and AEM previously entered into Master Services Agreements on March 1, 2016, and January 1, 2019. (Ex. B.) 4 3 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 5 of 189 * PUBLIC * PUBLIC industry sales and the portion of total sales accounted for by that particular manufacturer (i.e., market share calculations). The reports do not show other manufacturers’ individual sales or market shares. (Id.) The portal on which member manufacturers submit their data is solely controlled by HAI; AEM has no access to individual data through the portal or otherwise. (Id. ¶ 10.) Each individual manufacturer, however, has access to the information that it submits to HAI through the portal and the reports specific to it that the manufacturer receives from HAI. (Id.) Therefore, the FTC could obtain the exact same information it seeks by serving CIDs on the individual manufacturer(s) from which it seeks data for its investigation. The AEM member data submitted through HAI’s portal is highly confidential and very sensitive because manufacturers of agricultural equipment do not want their competitors to know their sales data for various products in particular geographic areas. HAI takes AEM’s member data and aggregates and anonymizes this industry data to provide to AEM upon request. (Id.) As part of AEM’s services, AEM uses certain aggregated data from HAI to provide industry analyses and public reports for all its members. (Id.) On January 4, 2018, AEM publicly announced its acquisition of HAI. (Id. ¶ 6.) Despite the acquisition of HAI, the two entities operate as separate and distinct entities. (Id.) HAI and AEM do not participate in each other’s day-to-day operations; AEM does not have access to any of HAI’s files, systems, or data; AEM and HAI have separate boards of directors; and each maintains its own accounting and computer systems, assets, headquarters, and employees. (Id.) AEM may not access individual member data that is submitted to HAI in the ordinary course of business. (Id. ¶ 11.) Further, HAI will make individual manufacturer data available to AEM only upon request and written consent of the manufacturer that owns the data and for limited, specified purposes. 4 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 6 of 189 * PUBLIC * PUBLIC (Id.) Moreover, HAI’s bylaws5 expressly prohibit HAI from sharing individual member data with AEM, any of AEM’s agents, or third parties absent these specific purposes. (Id. ¶ 8.)6 These safeguards were implemented to protect the disclosure of members’ confidential data to third parties, including the government, and to protect HAI from potential misappropriation of trade secrets and breach of contract claims by its members. II. HISTORY OF CONFERRALS AND CID COMPLIANCE Initially, the FTC served a Civil Investigative Demand to AEM on August 15, 2024 (“AEM CID”). The AEM CID requested the same information as the later served HAI CID. As required by the FTC’s Rules of Practice for Nonadjudicative Procedures (“Rules of Practice”), 16 C.F.R. § 2.7(k), AEM first met and conferred with FTC staff regarding the AEM CID on August 29, 2024.7 During the initial meet and confer, AEM described the organizational structure of AEM and its relationship with HAI and relayed its concerns regarding the CID to AEM. These concerns include Specification 1, which requests “all Data Sets relating to the sale of Agricultural Equipment in the United States, including all Data Sets relating to AEM’s reports and market share/size statistics for Agricultural Equipment and Data Sets submitted by Agricultural Equipment manufacturers to AEM, with all available fields,” which FTC staff confirmed was meant to include individual manufacturer data. AEM also identified its confidentiality and non-disclosure obligations and legal bases for its objections to producing such individual manufacturer data. In particular, AEM stated it did not have access to sales data that its manufacturer members submit to HAI or the market share data that HAI reports to individual members; therefore, such data was not in its possession, custody, or control. AEM can access only certain aggregate data, but it must first request such data 5 See Exhibit B-1. Id.at p. 5. 7 AEM also served responses and objections to the CID on August 28, 2024 ahead of the meet and confer with FTC staff. 6 5 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 7 of 189 * PUBLIC * PUBLIC from HAI. In response to the FTC’s request, AEM made an initial production of documents on September 5, 2024, supporting its position that it did not have possession, custody, or control of individual manufacturer data and showing its confidentiality and non-disclosure obligations through its Master Services Agreements with HAI, AEM’s Market Share Statistics Policy & Procedure Manual,8 and HAI’s bylaws. On August 29, 2024, counsel for AEM and FTC staff held another meet and confer to continue discussions related to the AEM CID. On September 12, 2024, in response to Specification 2 of AEM’s CID, AEM produced AG Tractor and Combine monthly reports that represent preliminary monthly retail sales of Agricultural Equipment, such as 2WD and 4WD Farm Tractors, made by AEM members that report their statistical data through HAI’s portal. Additionally, on September 20, 2024, AEM produced quarterly agriculture Industry Conditions Survey and Reports, which contain aggregated agricultural industry data. In response to Specification 5 of the AEM CID, AEM produced model chart spreadsheets.9 The model charts, which are available for purchase on the AEM website, show—with respect to each category of agricultural equipment— the identity of the AEM members that report their sales to HAI, the product offerings of each manufacturer, and the geographic areas in which each manufacturer reports its sales. Finally, on October 2, 2024, AEM provided information in response to Specification 4. The model charts AEM produced do not show total industry sales or the sales of any particular manufacturer. AEM does not have access to individual manufacturer sales data, which is maintained by HAI. Manufacturers that report their sales to HAI do so by submitting a spreadsheet, known as the iSTAT import format, through the HAI portal. (Ex. B, Snell Decl. ¶ 9.) 8 See Exhibit B-3. The produced spreadsheets do not reflect actual data. Furthermore, although AEM made this production, HAI does not concede that it is authorized to produce actual individual company data to the FTC without company consent. 9 6 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 8 of 189 * PUBLIC * PUBLIC In exchange, each manufacturer receives through the HAI portal a completed data format spreadsheet comparing its sales of products in the designated geographic area with the industry totals. (Id.) No manufacturer receives any information about the sales or market share of any of its competitors. (Id.) On September 12, 2024, the FTC confirmed in an email to AEM’s counsel that AEM need only produce documents within AEM’s possession, custody, and control, and it did not intend to seek duplicative data from HAI and AEM.10 On September 16, 2024, the FTC served an almost identical CID to HAI as the AEM CID. HAI served the FTC with responses and objections to the CID on September 20, 2024. To show the type of data that a manufacturer submits and receives through the HAI portal, HAI prepared and produced to the FTC a sample data format spreadsheet.11 The sample data format spreadsheet did not contain any actual sales data or market shares but did show the data columns used for industry and market share reporting on HAI’s portal. Participating companies cannot access other companies’ individual data, only their own data and industry totals for their respective products. Every AEM member reporting its sales to HAI could retrieve and produce its own data format spreadsheet if served with a CID from the FTC. Pursuant to the FTC’s Rules of Practice, counsel for HAI12 and the FTC held a meet and confer on September 23, 2024, to discuss the HAI CID. Consistent with the discussion during the prior AEM meet and confer sessions, HAI identified its confidentiality and non-disclosure contractual obligations and discussed the legal basis for its objections to the CID. At the FTC’s request, HAI provided FTC staff with a letter outlining the legal and factual bases for objecting to 10 A true and correct copy of the FTC’s Correspondence is attached as Exhibit C. AEM produced documents and information responsive to Specifications 2, 3, 4, and 5. Both AEM and HAI objected to Specifications 6 and 7 in their respective Responses and Objections to all Specifications, though HAI’s production of the data format spreadsheet is responsive to Specification 7. Specifications 1 and 2 appear to be the remaining specifications in dispute between the FTC and HAI unless the FTC intends to pursue information responsive to Specification 6 and additional information responsive to Specification 7. 12 AEM and HAI are represented by the same counsel for this matter. 11 7 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 9 of 189 * PUBLIC * PUBLIC the FTC’s request for individual manufacturers’ Company Data. HAI and the FTC held additional meet and confers relating to HAI’s CID on October 1, 2024, October 3, 2024, October 4, 2024, October 9, 2024, and October 15, 2024. After the meet and confer on October 4, 2024, the FTC granted deadline extensions for compliance to October 21, 2024, and the Petition to Quash to October 10, 2024.13 On October 10, the FTC granted another deadline extension for the Petition to Quash to October 16, 2024.14 So far, the FTC has refused to limit the scope of Specifications 1 and 2 of the HAI CID despite HAI’s repeated requests. HAI has serious concerns about the detrimental effects the overbroad and unduly burdensome CID would have on its business and ability to continue operating. For these and the foregoing reasons, HAI files this Petition to Quash or Limit the Civil Investigative Demand. ARGUMENT III. LEGAL STANDARD Although the FTC may have broad authority in its investigations, that authority is not limitless. F.T.C. v. Ken Roberts Co., 276 F.3d 583, 586 (D.C. Cir. 2001). The information sought by a CID must also be reasonably relevant. Id. “The relevance of an F.T.C. subpoena request is measured against the purpose and scope of its investigation” to which the agency is authorized to conduct. F.T.C. v. Turner, 609 F.2d 743, 745-46 (5th Cir. 1980). Although Congress has provided the FTC with authority to conduct reasonable investigations using CIDs, CIDs are not meant to provide agencies with unlimited power, and federal courts must safeguard against abusive CIDs. See SEC v. Arthur Young & Co., 584 F.2d 1018, 1024 (D.C. Cir. 1978). Even if the information requested by a CID is relevant, the FTC exceeds its investigatory power where it seeks information that is “unduly burdensome or unreasonably broad.” F.T.C. v. 13 14 See Exhibit D, FTC letter dated October 4, 2024. See Exhibit E, FTC letter dated October 10, 2024. 8 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 10 of 189 * PUBLIC * PUBLIC Invention Submission Corp., 965 F.2d 1086, 1089 (D.C. Cir. 1993); see F.T.C. v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977). Although some burden on subpoenaed parties is to be expected, subpoenaed parties have the right to show any serious hindrance to their business by adherence to the subpoena’s provisions. Texaco, 555 F.2d at 882; see also Walsh v. Alight Sols. LLC, 44 F.4th 716, 726 (7th Cir. 2022) (“Agencies should not read this result as granting leave to issue administrative subpoenas that are overly cumbersome or that seek information not reasonably relevant to the investigation at hand.”). An administrative subpoena may be deemed unduly burdensome if “compliance threaten[s] to unduly disrupt or seriously hinder normal operations.” Dow Chemical Co. v. Allen, 672 F.2d 1262, 1274 (7th Cir. 1982) (citing F.T.C. v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977)) (upholding a finding that a subpoena was unduly burdensome after balancing the burdens and benefits of compliance with the subpoena). A court may impose reasonable conditions and restrictions on the subpoena’s scope if it finds the subpoena is unduly burdensome. Texaco, 555 F.2d at 882. IV. THE FTC’S CID IS UNDULY BURDENSOME BECAUSE IT SERIOUSLY THREATENS HAI’S BUSINESS REPUTATION AND OPERATIONS The CID to HAI is unduly burdensome because complying with the CID would seriously threaten HAI’s business. Specification 1 seeks confidential AEM member data submitted to HAI through HAI’s portal. Specification 2 seeks reports, including market share/size statistics reports that HAI provides to individual members reflecting their respective market shares. Production of this requested information would likely result in (1) legal exposure for HAI of potential misappropriation of trade secrets and breach of contract claims; (2) potential loss of business from existing or future trade associations; and (3) duplicative production of documents the FTC already has in its possession (with respect to Specification 2) or can easily obtain through CIDs to individual manufacturers, including any target(s) of its investigation. 9 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 11 of 189 * PUBLIC * PUBLIC A. Compliance with the CID Could Potentially Cause HAI to Breach Its Contracts and Governance Documents HAI's disclosm e of individual AEM member data may cause HAI to breach its contrnctual obligations to AEM and its members. Section 3.3 of the MSA, dated Janua1y 1, 2022, provides: Fmther, Section 8 of the MSA limits HAI's use of confidential data, including AEM member data submitted to HAI, without notice and consent. Section 8 states: HAI's Bylaws similarly restrict HAI's disclosme of confidential infmm ation. The Bylaws reflect HAI's understanding of its obligations to AEM members with respect to their data. Section 2.9 ofHAI's Bylaws states: 10 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 12 of 189 * PUBLIC * PUBLIC Finally, AEM’s Market Share Statistics Policy & Procedure Manual is publicly available on AEM’s website and helps inform and set an expectation of privacy and confidentiality among AEM members. AEM members expect their data to be protected and handled in accordance with its procedures. Section II-E.4 of the Manual states: 18 See Exhibit B-1 at p. 5. 19 20 In preparing information in response to the CID, AEM learned that an addition to the Market Share Statistics Policy & Procedure Manual clarifying the requirement of consent was inadvertently not incorporated in 2016. HAI produced to the FTC information reflecting the correction to the Market Share Statistics Policy & Procedure Manual on October 15, 2024, and intends to produce the revised version once corrected. 11 FEDERAL TRADE COMMISSION I OFFICE OF THE SECRETARY I FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 13 of 189 •PUBLIC• PUBLIC The foregoing docmnents specify the very limited circumstances when and how disclosme of individual member data to AEM may occm and the specific steps that would need to be taken. Based on the provisions quoted above, consent is a prerequisite for HAI to disclose member data to any third party, including the government. Notwithstanding the specific provisions of the MSA prohibiting the disclosure of "Company Data," FTC staff claims that HAI only needs to notify member companies to disclose the data. In support of this position, FTC staff cite First, this provision does not apply because AEM and HAI have not exchanged any "Company Data." Second, this general provision could not-under basic principles of contract interpretation- negate the more specific prohibitions contained in other sections of the MSA, . See Stanley v. George Washington Univ., 394 F. Supp. 3d 97, 110 (D.D.C. 2019); Ohio Power Co. v. FERC, 744 F.2d 162, 168 n. 7 (D.C.Cir.1984) ("where both the specific and general provisions may be given reasonable effect, both are retained. "). 21 See Exhibit B-3 at p. 28 and p. 47-48. 22 12 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 14 of 189 * PUBLIC * PUBLIC HAI to seek and obtain consent from each individual member before producing confidential Company Data to the FTC to avoid any potential claim that HAI is in breach of its obligations and operating and governance documents. AEM members own and provide commercially sensitive data to HAI. In turn, members expect HAI to fully follow its Bylaws and the AEM Policy & Procedure Manual to protect their confidential data from undue disclosure, even to government entities. Noncompliance could potentially cause members to assert claims for misappropriation of trade secrets and breach of contract as third party beneficiaries against HAI. See Talton v. Behncke, 199 F.2d 471,473 (7th Cir. 1952) (“Whether such association acts properly is to be determined by the authority granted, not by virtue of any statute but by virtue of the Constitution and By-Laws under which it exists and by which the propriety of all its actions is measured.”); Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 361 (D.C. 2005) (“It is well established that the formal bylaws of an organization are to be construed as a contractual agreement between the organization and its members.”); see also Welsh v. McNeil, 162 A.3d 135, 158 (D.C. 2017) (holding just as parties to a contract may provide for enforcement by an intended third-party beneficiary, the bylaws of an organization may also provide for enforcement by individual members). B. The CID Threatens HAI With Potential Loss of Business and Goodwill FTC staff confirmed that Specification 1 seeks information about 85 product categories from over 500 agricultural equipment manufacturers. To comply with its confidentiality and nondisclosure obligations, HAI would need to give notice and seek and obtain consent from every agricultural equipment manufacturer member that submits data to its portal for all 85 product 13 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 15 of 189 * PUBLIC * PUBLIC categories. (Ex. B, Snell Decl. ¶ 14.) Providing notice and seeking consent to potentially over 500 agricultural manufacturers would be unduly burdensome on HAI’s staff and disruptive to HAI’s day-to-day operations. (Id.) If HAI were to disclose individual AEM member data without the requisite consent, it would suffer irreparable harm to its trade association customers and their members (Id. ¶ 15.) AEM members would be discouraged from submitting data to HAI in fear their highly confidential and sensitive information could be disclosed without their consent to third parties. Without the member data, HAI would not be able to provide accurate and meaningful aggregated data to AEM, which AEM uses in its reports and industry analyses. Moreover, requiring HAI to produce individual manufacturer data would have detrimental consequences for HAI’s ability to provide similar services on behalf of other trade associations for which it currently provides services or in the future would seek to provide similar services. (Id.) Complying with the CID would therefore unduly burden all of HAI’s business relationships, not just its relationship with AEM. C. The CID Is Duplicative Because It Seeks Documents and Information to Which the FTC Already Has Access HAI’s CID is unduly burdensome because the FTC requests information that the target of this investigation and others can produce to the FTC if they have not already. The FTC has served CIDs on the target and on the plaintiffs’ class action lawyers pursuing right to repair claims in federal court. Market share data produced by the target or any other manufacturer would show— in addition to the manufacturer’s market share—the total industry sales for the type of product in question. There is no legitimate reason to have HAI produce data that the FTC can obtain or already has obtained through the target of its investigation. The FTC may not use its subpoena powers to go on fishing expeditions. FTC v. Am. Tobacco Co., 264 U.S. 298, 306 (1924). It is a burden to compel third parties to produce duplicative 14 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 16 of 189 * PUBLIC * PUBLIC information that is available from other sources, particularly when the target of the investigation has already produced or can produce such information. See FTC v. Carter, 464 F. Supp. 633, 641 (D.C. Cir. 1979); Ameritox, Ltd. v. Millennium Labs., Inc., 2012 WL 6568226 (N.D. Ill. Dec. 14, 2012) (granting a motion to quash a subpoena because it was unduly burdensome for a third party to produce documents that a party to the litigation had already produced). Complying with the CID would be overly burdensome and unreasonable because the FTC already possesses or can easily obtain most, if not all, of the information requested of HAI from the target of its investigation. See Ameritox, Ltd. v. Millennium Labs., Inc., No. 12-cv-7493, 2012 WL 6568226, at *3 (N.D. Ill. Dec. 14, 2012) (granting a third party’s motion to quash because many of the requests were duplicative and cumulative of discovery requests issued to a party in the litigation). AEM has already produced information responsive to Specification 2, and the FTC can or will obtain market share information from individual manufacturers, including the actual target of this investigation. Accordingly, HAI’s CID is unduly burdensome because it requests duplicative information to which the FTC already has access. CONCLUSION Hargrove & Associates, Inc. respectfully requests that its Petition to Quash be granted in its entirety because AEM already produced documents responsive to Specifications 2, 3, 4, and 5 of the CID that does not cause an undue burden on HAI, or in the alternative that the HAI CID be limited to remove Specifications 1 and 2. Dated: October 16, 2024 Respectfully submitted, HARGROVE & ASSOCIATES, INC. By: /s/ Michael J. Lockerby 15 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 17 of 189 * PUBLIC * PUBLIC Michael J. Lockerby FOLEY & LARDNER LLP 3000 K Street, N.W., Suite 600 Washington, D.C. 20007 P: 202.945.6079 MLockerby@foley.com Diane Hazel FOLEY & LARDNER LLP 1400 16th Street, Suite 200 Denver, CO 80202 P: 720.437.2000 DHazel@foley.com William C. McCaughey FOLEY & LARDNER LLP 90 Park Ave, 37th Floor New York, NY 10016 P: 212.338.3425 WMccaughey@foley.com Quynh-Nhu Truong FOLEY & LARDNER LLP 1000 Louisiana St., Suite 2000 Houston, Texas 77007 P: 713.276.5070 Qtruong@foley.com Counsel for Petitioner 16 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 18 of 189 * PUBLIC * PUBLIC CERTIFICATE OF SERVICE I certify that, on October 16, 2024, an electronic copy of the foregoing and exhibits thereto were served via electronic mail upon the following: Office of the Secretary Federal Trade Commission 600 Pennsylvania Avenue, NW Suite CC-5610 Washington, D.C. 20580 electronicfilings@ftc.gov atabor@ftc.gov Ethan Stevenson Melissa Westman-Cherry Joseph Conrad Federal Trade Commission 600 Pennsylvania Avenue, N.W. Washington, D.C. 20580 estevenson1@ftc.gov mwestman@ftc.gov jconrad2@ftc.gov Dated: October 16, 2024 Respectfully submitted, HARGROVE & ASSOCIATES, INC. By: /s/ Diane R. Hazel Diane Hazel FOLEY & LARDNER LLP 1400 16th Street, Suite 200 Denver, CO 80202 P: 720.437.2000 DHazel@foley.com Counsel for Petitioner 17 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 19 of 189 * PUBLIC * PUBLIC UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION In the Matter of Civil Investigative Demand to Hargrove & Associates, Inc. FTC File No. 211-0191 REQUEST FOR CONFIDENTIAL TREATMENT Hargrove & Associates, Inc. (“HAI”) requests that the following be afforded confidential treatment pursuant to 16 C.F.R. § 4.2(d) as they contain information that is secret and material to HAI’s business and the disclosure of such information would result in serious competitive injury: (1) sections of the Affidavit of Todd Snell, attached as Exhibit B; (2) Master Services Agreement between HAI and the Association of Equipment Manufacturers (“MSA”), attached as Exhibit B-2; (3) HAI's Bylaws, attached as Exhibit B-1; and (4) provisions of the MSA and HAI’s Bylaws within the Petition to Quash.1 See General Foods Corp., 95 F.T.C. 352, 355 (1980) (noting serious competitive injury can be shown by establishing the documents are secret and material to a business and then balancing that factor against the importance of the information in explaining the rationale of Commission decisions). The aforementioned documents contain competitively sensitive information about HAI’s business operations, its confidential contractual arrangements with AEM, its practices and trade secrets and other confidential proprietary information. Such information and documents are not available to the public in the ordinary course of business. This is the type of “confidential business information” that the commission routinely affords confidential treatment to protect 1 HAI is simultaneously submitting both a public and non-public version of its Petition to Quash. The non-public version contains redactions for the sections of the Petition to Quash that HAI has requested confidential treatment. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 20 of 189 * PUBLIC * PUBLIC from “unnecessary airing.” See, e.g., In re H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961) (“[T]he confidential records of businesses involved in Commission proceedings should be protected insofar as possible.”). Confidential treatment is particularly important where, as here, the information concerns a third party in an investigation. See In re Kaiser Aluminum & Chern. Corp., 103 F.T.C. 500, 500 (1984) (explaining that a non-party’s confidential information deserves “special solicitude”). If this information is made public, HAI, its current trade association customers, and members of those trade associations would suffer irreparable harm. Disclosure of this information would reveal proprietary information about HAI’s practices, operations, and contracts that it maintains as confidential and private in the ordinary course to protect its trade secrets and competitive position. Therefore, the MSA, HAI’s Bylaws, and provisions of the MSA and HAI's Bylaws within the Petition to Quash and Affidavit of Todd Snell should be afforded confidential treatment to prevent the disclosure of competitively sensitive information of HAI, a third party not the target of the FTC investigation. If the Commission determines to disclose some or all of the confidential information, please notify the counsel named below. Dated: October 16, 2024 Respectfully submitted, /s/ Diane R. Hazel Diane R. Hazel FOLEY & LARDNER LLP 1400 16th Street, Suite 200 Denver, CO 80202 P: 720.437.2000 DHazel@foley.com Counsel for Hargrove & Associates, Inc. 2 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 21 of 189 * PUBLIC * PUBLIC UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION In the Matter of Civil Investigative Demand to Hargrove & Associates, Inc. FTC File No. 211-0191 STATEMENT OF COUNSEL PURSUANT TO 16 C.F.R. § 2.10 I, Diane R. Hazel, state as follows: 1. I am a partner at Foley & Lardner LLP and one of the attorneys representing third-party, Hargrove & Associates, Inc (“HAI”). 2. I make this statement upon personal knowledge. 3. Prior to filing the accompanying Petition to Quash, I and my colleagues, Michael J. Lockerby, William McCaughey, and Quinny Truong, conferred with Commission staff pursuant to 16 C.F.R. § 2.7(k) in a good faith effort to resolve by agreement the issues raised by the Civil Investigative Demand (“CID”) to HAI, but we have been unable to reach an agreement as to those issues. 4. As required by FTC Rule of Practice 2.10(a)(2), the following are the dates, times, and place of each conference between counsel, and the names of all parties participating in each such conference. These conferences are described in further detail in the Petition to Quash. a. At 10:30 a.m. EST on September 23, 2024, after serving Responses and Objections to the CID on September 20, 2024, counsel for HAI, Michael J. Lockerby, Diane Hazel, William McCaughey, and Quinny Truong participated in a Microsoft Teams conference with FTC staff, Ethan Stevenson, Melissa Westman-Cherry, Joseph Conrad, and Xiaowei Yu. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 22 of 189 * PUBLIC * PUBLIC b. At 3:00 p.m. EST on October 1, 2024, counsel for HAI, Michael J. Lockerby, Diane Hazel, William McCaughey, and Quinny Truong participated in a Microsoft Teams conference with FTC staff, Ethan Stevenson, Melissa Westman-Cherry, and Xiaowei Yu. c. At 4:22 p.m. EST on October 2, 2024, counsel for HAI, Diane Hazel, held a telephone conference with FTC staff attorney, Ethan Stevenson. d. At 11:00 a.m. EST on October 3, 2024, counsel for HAI, Michael J. Lockerby, Diane Hazel, William McCaughey, and Quinny Truong participated in a Microsoft Teams conference with FTC staff, Ethan Stevenson, Melissa Westman-Cherry, Joseph Conrad, and Xiaowei Yu. e. At 3:00 p.m. EST on October 4, 2024, counsel for HAI, Michael J. Lockerby, Diane Hazel, William McCaughey, and Quinny Truong participated in a Microsoft Teams conference with FTC staff, Ethan Stevenson, Melissa Westman-Cherry, Joseph Conrad, Xiaowei Yu, and Chamaree Shelton. Following the conference, on October 4, 2024, FTC staff, Ethan Stevenson, with Melissa Westman-Cherry and Joseph Conrad in copy, sent correspondence extending the deadline to October 10, 2024 for compliance with the CID and deadline for Petition to Quash to counsel for HAI, Michael J. Lockerby, Diane Hazel, William McCaughey, and Quinny Truong. f. At 4:00 p.m. EST on October 9, 2024, counsel for HAI, Michael J. Lockerby, Diane Hazel, and William McCaughey participated in a Microsoft Teams conference with FTC staff, Ethan Stevenson, Melissa Westman-Cherry, Xiaowei Yu, and Chamaree Shelton. Following the conference, on October 10, FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 23 of 189 * PUBLIC * PUBLIC 2024, FTC Staff, Ethan Stevenson, with Melissa Westman-Cherry and Joseph Conrad in copy, sent correspondence extending the deadline to October 21, 2024 for compliance with the CID and deadline to October 16, 2024 for the Petition to Quash, to counsel for HAI, Michael J. Lockerby, Diane Hazel, William McCaughey, and Quinny Truong. g. At 2:30 p.m. EST on October 15, 2024, counsel for HAI, Diane Hazel, William McCaughey, and Quinny Truong participated in a Microsoft Teams conference with FTC staff, Ethan Stevenson, Melissa Westman-Cherry, Joseph Conrad, Xiaowei Yu, and Chamaree Shelton. 5. Pursuant to FTC email correspondence on September 12, 2024, FTC staff Ethan Stevenson stated that FTC did not intend to seek duplicative data from HAI and AEM, to which the FTC had served an earlier, almost identical CID. Below is a status of the productions made by AEM and HAI for each specification: a. Specifications 3, 4, 5: AEM produced responsive information. b. Specification 2: AEM produced responsive information; FTC seeks further information from HAI to which HAI objects. c. Specification 6: HAI objected to Specification 6 in its Responses and Objections to all Specifications, and the FTC has not pursued information responsive to Specification 6 at this time. d. Specification 7: HAI produced information responsive to Specification 7. Based on these productions, HAI counsel considers compliance with Specifications 3, 4, 5, 6, and 7 of the HAI CID resolved. At this time, Specifications 1 and 2 of the HAI CID appear to be the remaining unresolved FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 24 of 189 * PUBLIC * PUBLIC issues unless the FTC intends to pursue information responsive to Specification 6 and additional information responsive to Specification 7. Dated: October 16, 2024 Respectfully submitted, Hargrove & Associates, Inc. By: /s/ Diane R. Hazel Diane Hazel Foley & Lardner LLP 1400 16th Street, Suite 200 Denver, Colorado 80202 P: 720.437.2000 DHazel@foley.com Counsel for Hargrove & Associates, Inc. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 25 of 189 * PUBLIC * PUBLIC EXHIBIT A FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 26 of 189 * PUBLIC * PUBLIC United States of America Federal T rade Commission Civil Investigative Demand B 1. TO 1a. MATTER NUMBER Hargrove & Associates, Inc. c/o Diane Hazel, Foley & L a rdner LLP FTC File No. 211-0191 1400 16th St., Suite 200 Denver, CO 80202 This demand is issued pursuant to Section 20 of the Federal Trade Commission Act, 15 U.S.C. § 57b-1, in the course of an investigation to determine whether there is, has been, or may be a violation of any laws administered by the Federal Trade Commission by conduct, activities or proposed action as described in Item 3. 2. ACTION REQUIRED D You are required to appear and testify. LOCATION OF HEARING YOUR APPEARANCE WILL BE BEFORE No appearance required DATE AND TIME OF HEARING OR DEPOSITION r.;i You are required to produce all documents described in the attached schedule that are in your possession, custody, or control, and to make them ~ available at your address indicated above for inspection and copying or reproduction at the date and t i me specified below. r.;i You are required to answer the interrogatories or provide the written report described on the attached schedule. Answer each interrogatory or report ~ separately and fully in writing. Submit your answers or report to the Records Custodian named in Item 4 on or before the date specifi~d below. □ You are required to produce the tangi ble th ings described on the attached schedule. Produce such things to t he Records Custodian ,amed in Item 4 on or before t1e date specified below. DATE AND TIM-:: THE DOCUMENTS, ANSWERS TO INTERROGATORIES, REPORTS, AND/OR TANGIBLE THINGS MUST BE AVAILABLE October 2, 2024, at 5:00pm ET 3. SUBJECT OF INVESTIGATION See attached. 4. RECORDS CUSTODIAN/DEPUTY RECORDS CUSTODIAN 5. COMMISSION COUNSEL Geoffrey M. Green, Assistant Director Joseph R. Baker, Deputy Assistant Director Melissa Westman-Cherry Federal Trade Commission 600 Pennsylvania Avenue NW Washington, DC 20580 (202) 326-2338 I mwestman@ftc.gov DATE ISSUED COMMISSIONER'S SIGNATURE ~~~ 09/16/24 INSTRUCTIONS AND NOTICES YOUR RIGHTS TO REGULATORY ENFORCEMENT FAIRNESS The delivery of this demand to you by any method prescribed by the Commission's Rules of Practice is legal service and may subject you to a penalty imposed by law for failure to comply. The p-oduction of documents or the submission of answers and report in response to this demand must be made under a sworn certificate, in the form printed on lhe :,econd page of !his demand, by the per~on to whom this demand is directed or, if not a natural person, b\ a person or persons having knowledge of the facts and circumstances of such production or responsible for answering each interrogatory o report question. This demand does not require approval by 0MB under the Paperwork Reduction Act of 1980. The FTC has a longstanding comm~ment to a fair regulatory enforcement environment. If you are a small business (under Small Business Administration standards), you have a right to contact the Small Business Administration's National Ombudsman at 1-888REGFAIR (Hl86-734-3247) or www.sba.gov/ombudsman regarding the fairness of lhe compliance and enforcement activities of the agency. You shou~ understand, however, that the National Ombudsman cannot change, stop. or delay a federal agency enforcement action. The FTC strictly forbids retaliatory acts by its employees. and you will not be penalized for expressing a concern about these aclivites. PETITION TO LIMIT OR QUASH TRAVEL EXPENSES The Commssion's Rules of Practice require that any petition to limtt or quash this demand be filed within 20 days after service, or, if the return date is less than 20 days after service, prior to the return date. The onginal and twelve copies of the petition must be filed with the Secretary of the Federal Trade Ccmmission, and one copy should be sont to the Commission Counsel named in Item 5. Use the endosed travel voucher to claim compensation to which you are entitled as a witness for the Commission. The completed travel voucher and this demand should be presented to Comrrission Counsel for payment. If you are penmnently or temporarily living somewhere other than the address on this demand and it Nould require excessive travel for you to appear, you must got prior approval from Commission Counsel. A copy of the Commission's Rules of Practice is available online at bllJ2;/lllit.ly FTCSBulesofPractice- Paper copies are available upon request FTC Form 144 1rev 01/2024) FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 27 of 189 * PUBLIC * PUBLIC CIVIL INVESTIGATIVE DEMAND ISSUED TO HARGROVE & ASSOCIATES, INC. File No. 211-0191 Unless modified by agreement with the staff of the Federal Trade Commission (the "Commission" or the "FTC"), each Specification of this Civil Investigative Demand requires a complete search of the Company as defined in the Definitions, which appear after the following Specifications. Pursuant to the Commission's Rules of Practice, 16 C.F.R. § 2.7(k), a Company representative must confer with the Commission representative identified in the final instruction of this Civil Investigative Demand within fourteen days after receipt of this Civil Investigative Demand or before the deadline for filing a petition to quash, whichever is first. If the Company believes that the required search or any other part of this Civil Investigative Demand can be narrowed in any way that is consistent with the Commission's need for information, it is encouraged to discuss such possible modifications with the Commission representative. All modifications to this Civil Investigative Demand must be agreed to in writing pursuant to the Commission's Rules of Practice, 16 C.F.R. § 2.7(/). SUBJECT OF THE INVESTIGATION To determine whether Deere & Company, or any other person, has engaged in or is engaging in unfair, deceptive, anticompetitive, collusive, coercive, predatory, exploitative, or exclusionary acts or practices in or affecting commerce related to the repair of agricultural equipment in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, as amended, or any other statutes or rules enforced by the Commission, and to determine the appropriate action or remedy. See also the attached resolution. SPECIFICATIONS l. Submit all Data Sets relating to the sale of Agricultural Equipment in the United States, including all Data Sets relating to AEM's or HAi's reports and market share/size statistics for Agricultural Equipment and Data Sets submitted by Agricultural Equipment manufacturers to HAI, with all available fields. 2. Submit all reports, including United States Ag Tractor and Combine reports and market share/size statistics, issued, created, or distributed by HAI relating to the sale of Agricultural Equipment in the United States. 3. Submit all documents sent by HAI to Agricultural Equipment manufacturers relating to the submission of data to HAI, including any manuals, instructions, or specifications relating to data submissions. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 28 of 189 * PUBLIC * PUBLIC 4. Provide a list of Agricultural Equipment manufacturers that sell Agricultural Equipment in the United States but do not participate in HAI's reporting programs in the United States. 5. Submit documents sufficient to show the relationship between each Agricultural Equipment manufacturer' s product name/number and AEM or HAI's product categorization (e.g., 2WD farm tractors 40 ton operating weight, a spade nose rock bucket with teeth and segments is recommended for the calculation. Census Consolidated Subdivision (CCS) – Grouping of Canadian census subdivisions within a containing census subdivision. They were created by Statistics Canada (Canada's national statistical agency) for ease of geographical referencing. They are also more stable than census subdivisions because most boundary changes involve the units contained in the group. Census Division (CD) – Canadian geographical areas established by provincial law, which are intermediate between the census consolidated subdivision and the province. In some provinces, these are equivalent to counties in the U.S. They were created to facilitate regional planning and the provision of services that can be more effectively delivered on a scale larger than a municipality. In Newfoundland and Labrador, Manitoba, Saskatchewan, and Alberta, provincial law does not provide for such administrative geographical areas; therefore, equivalent census divisions have been created by Statistics Canada in cooperation with these provinces. There are no census divisions in the Yukon Territory. In Quebec, the “municipalité régionale de comté” (MRC), or its equivalent (communauté urbaine,” “territoire conventionné,” or group of MRCs) has been adopted as the CD level of the classification. This represents a completely new census division structure within Quebec since 1986. CD boundaries tend to be relatively stable over many years. Census Subdivision (CSD) – Term applied to municipalities as determined by provincial legislation or their equivalent: Indian reserves, Indian settlements, and organized territories. Beginning with the 1981 Census, each Indian reserve and Indian settlement recognized by the census has been treated as a separate CSD. Prior to the 1981 Census, all Indian reserves in a census were grouped together and classified as one census subdivision. Census subdivisions have been created for the unorganized territories of Newfoundland and Labrador, Nova Scotia, and British Columbia by Statistics Canada in cooperation with the provinces, as equivalents for municipalities. Each of the parts of a census subdivision that straddles provincial boundaries is treated as a separate CSD. Codes – General term for specific values assigned to identify and be equivalent to entities and provide control of the data processed by the IPC. All codes except geographic are developed and assigned by the IPC. There are four main sets of geographic codes used in the programs administered by AEM as follows: Canada – Codes developed and maintained by Statistics Canada identify provinces, census divisions, census subdivisions, and consolidated census subdivisions. Changes in geography and codes are generally published every five years after the Canadian Census. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 139 of 189 * PUBLIC * PUBLIC 57 United States – Codes developed and maintained by the federal government, as part of the Federal Information Processing Standards (FIPS). Included are codes for states and counties. Changes in codes made in any given year are adopted by AEM at the beginning of the following year. Worldwide Codes – Codes developed and maintained by the International Standards Organization (ISO) and includes identification of all countries of the world. Changes in countries and codes announced by ISO in any given year are adopted by AEM at the beginning of the following year. Latin America – HAI codes in iSTAT use ISO codes for Latin America states within countries and has created a code when none is provided. Company – Corporation or other business entity actively engaged in the manufacture and/or sale, directly or through affiliates of farm, industrial, or construction equipment. All business entities having a common parent corporation or other form of common majority ownership, constitute one company, whether they participate individually or collectively. Company Direct Sales – Sales made by the corporation (manufacturer and/or marketer) itself, rather than by the affiliated dealers or distributors. The manufacturer direct sale is made by the company and the opportunity for those sales is not available to any dealer. Company direct sales often involve large quantities and significant discounts. Typically, these sales would be made to: • Federal government agencies • State/Provincial government agencies • County governments • City, Town, and other local governments • Independent rental companies, like Hertz and Prime • Large national accounts, such as large contractors, railroads, etc. • Auctions Dealers/distributors may sell to any and all of these same types of customers. The intent of identifying direct sales is to enable companies to treat dealers more fairly as identified by the company and at the company’s discretion. Consignment Units – Units for which the manufacturer retains title and risk regardless of where the inventory resides – until such time as the unit is sold to an end-customer or put into a first-use situation. At this time, the title and risk is conferred to the consumer. County – Largest geopolitical subdivision of states in the U.S. and in some provinces of Canada. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 140 of 189 * PUBLIC * PUBLIC 58 Custom Operator – A service provider (person or entity) that provides a service targeted at the producer/farmer. They usually purchase a fleet of machines and may contract in advance with producers, in some cases over a multi-state/province geography. Typical operations include custom harvesting done with combines, forage harvesters, large mower conditioners, large balers, or windrowers, as well as custom spraying, fertilizer application, and land leveling. This does not include producer/farmers who purchase a machine for their own use and also provide services to neighboring farmers. Sales to custom operators are to be reported into the county that is the operating base of the custom operator. Customer Type – Category of customer/business or government entity that purchases or rents a unit. See Online Documentation section for list. Dealer Owned Rental Fleet (DORF) – Primary purpose is renting or leasing machines to customers, i.e., the rent-to-rent business. The renter generally would have no option to purchase the machine and would be building no equity by way of rental payment for use of the machine. The machines would have been purchased by the DORF, either as a new retail or a rental conversion, from the affiliated dealer. Dollar Value – The company-invoiced amount in U.S. dollars to a dealer after identifiable discounts and incentives. Sometimes called “Dealer Net Cost.” Exceptions: For agricultural equipment only, data for Canada are reported in Canadian dollars. For Crushers, the data are reported by “list price,” also known as manufacturer’s suggested retail price DORF Fleet Conversion – Sale/title transfer of a machine from the inventory of a Dealer Owned Rental Fleet to a third party DORF Inventory – All machines owned as part of a dealer owned rental fleet. End-Use – Function for which a unit will primarily be used. See Section V - Online Documentation for list. First Use – Function for which a new machine will see its first substantial use as a new machine, not previously rented, and typically a first rental or a retail sale. First-In-the-Dirt (FID) – Combination of new retails plus first rentals, the common element being the first transaction with a customer of a new machine. First Rental – Units that are rented, not sold, to the first user. Also, units in rental programs (owned by the manufacturer/marketer – at dealer locations). These include “rental purchase” and “rent-to-sell” units. Excluded are sales to dealer owned rental fleets (see DORF). First Substantial Use – First work application of a product (machine) after purchase or rental in terms of where it is used the majority of time during its first 100 hours of engine operation and type of project for which it is used. Typically, a short-term job would not be recorded. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 141 of 189 * PUBLIC * PUBLIC 59 First Substantial Use Location – Retail activity should be reported by the location of the projected or intended county for first substantial use. First substantial use location is determined by where a piece of equipment is used the majority of time during its first 100 hours of engine operation for purposes of settling a dispute of an audited claim. This definition applies to any sale of equipment, including a direct sale such as a sale to a producer/farmer, as well as to an independent rental company (IRC), or dealer owned rental fleet (DORF). This definition is written assuming county (U.S.), or census subdivision/consolidated census sub-division (Canada), or state/province/department-level (Latin America/Regional), or nation (Worldwide) reporting. Products not reported at these geographic subdivisions would be reported by the appropriate geography as defined by the product program’s reporting parameters. For customers/operators that will use equipment in multiple geographic subdivisions, for example multiple counties, such as producers/farmers that farm in multiple geographic subdivisions or construction companies that work in several sites located in multiple geographic subdivisions, the designated county should be the county within which the equipment will be used the majority of time during its first 100 hours of engine operation, but if the use cannot be determined at the time of purchase the designated county should comprise at a minimum 25% of the customer’s overall use of the product. In the event the sale is to a DORF/IRC and there is a time delay to first substantial use, the projected or intended county the machine will be more frequently used during its first 100 hours should be reported as county of first use. Lacking insight to use location in these cases, the location of the fleet should be used. The customer’s residence or office location should not be used to determine first substantial use location, unless a customer’s residence is their farm, in which case it may be used. Please see Custom Operator and Government Sales for other exceptions. Final Delivery (FD) – Combination of new retails plus rental conversions, the common element being the title transfer of a new machine. Flash Report – Preliminary report of the prior month’s market activity, by product. The market activity shown in a flash report may differ between programs, as may the geographic scope, which is usually at a high level, e.g., country. The data may be reported with or without size classifications. Frequency – Time periods in a year in which an industry report is published. Typically, each report is published monthly, but variations can be accommodated. Fuel Tank and Other Options – Calculation assumes a full fuel tank and no other optional equipment which could influence the tipping load, such as an optional counterweight, heavy guardings, etc. Full Turn Static Tipping Load – The following shall serve as a guideline for determining and calculating the full turn tipping load: The calculation of the full turn tipping load FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 142 of 189 * PUBLIC * PUBLIC 60 should be based on a manufacturer’s Standard Configuration (options, bucket, tires, etc.) handling 16-32 mm crushed stone (aggregate). Standard Configuration – Tipping load for a particular model should be based upon the machine model’s most widely accepted lifting arm system, utilizing the model's most widely accepted bucket mounting configuration. Please see Bucket. Most Widely Accepted Lifting Arm System – Refers to the primary, and most frequently purchased, lifting arm for a given machine model. Examples include Z-Bar or Parallel linkage, or any other type of linkage purchased in considerable numbers. Hinge Pin Height – Vertical distance in mm from ground reference plane to the center of bucket or coupler hinge pin with the boom of the most common configuration in the fully raised position (with empty bucket). Report in millimeters (mm). Tires – Highest percentage usage tires should be utilized for the calculation. Tires with ballast should not be used. The tipping load should be calculated without deflection of the tires. Tires are specified under a Declaration of Machine Configuration and the air pressure should follow the manufacturer’s recommendations. Government Sales Retail sales or rentals to a Federal Government agency should be reported as “U.S. Government or Canadian Government.” This includes, but is not limited to, machines designed specifically for use by the Federal Government. Geographic and other coding can vary by program or committee. Generally, these units should be reported into working location if sold by a dealer or distributor or into the pseudo state code for the U.S. or Canada government if a company direct sale and should be classified using the Federal Government customer type code. • Native Americans – Should be coded as US-Federal Government. • Inuit People Land – Should be coded as Canada-Private. • Retail Sales or Rentals to State Governments – Should be reported in the state/province and county/census division of first use. These units should be classified using the State Government customer type code. • Retail Sales or Rentals to County/Local/City/Village/Township Governments – Should be reported in the state/province and county/census division of first use. These should be classified using the county or local government customer type code as appropriate. Horsepower • Net Horsepower - SAE Net Horsepower as defined by SAE J1349. • PTO Horsepower (Horsepower Measured at the Power Take Off of Farm Tractors) – Ratings measured by either the University of Nebraska or the Organization for Economic Co-operation and Development (OECD). Ratings for Nebraska tested unit will be shown on the Model Charts to two decimals: OECD units FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 143 of 189 * PUBLIC * PUBLIC 61 to one decimal. Manufacturers estimated PTO HP will be shown as a whole number followed by an “E” for estimated, when identified as such by the estimated HP attribute. Estimated ratings will be replaced when actual test data (Nebraska or OECD) are available. Units without a power take off (i.e., large four-wheel drive tractors) will receive an estimated PTO rating by multiplying the net engine horsepower by .86. This rating will also be marked with an “E”. Independent Rental Company – Company not affiliated with a manufacturer or dealership, whose main business activity is renting or leasing equipment, i.e., rent-torent. Inventory • New Inventory – New unused units that have been shipped and invoiced, but never reported as either a first rental, new retail, or rental conversion as of the end of each month. • Rental Inventory – Total company and dealer inventory of rental units not yet sold, i.e., not yet reported as “rental conversions.” This would include all units in rental inventory at the end of each month regardless of whether they are in the dealer’s yard or out on rent. Rental inventory excludes dealer owned rental fleet (DORF) units. • Consignment Inventory – Should not be reported as inventory until invoiced to a dealer or end user. • Demonstration Inventory – Should not be reported until invoiced to a dealer or end user. • Inventory Units Purchased “Used” by Dealer – Should not be reported in inventory. MARF (Manufacturer Affiliated Rental Fleet) – A manufacturer-affiliated rental business whose primary purpose is renting or leasing machines to customers, i.e., the rent-to-rent business. The renter would generally have no option to purchase the machine and would be building no equity by way of rental payment for use of the machine. MARFs have a close relationship between the manufacturer and the rental business. For example, a MARF may have the name of the manufacturer as part of its own name. The MARF will not rent equipment from any other manufacturer except in those productsor product sizes the affiliated manufacturer does not sell in the same territory as the MARF. Marketing Company – Company that sells the model. This is also generally the company that reports into the statistical program. Model Chart – Set of database files that define the models of a product and their specific characteristics. The files are used to create a display or report also referred to as a model chart. Collectively these become an important control mechanism in the iSTAT platform. Model charts are used to determine potential disclosure in the reporting FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 144 of 189 * PUBLIC * PUBLIC 62 categories or size classes of a product. The same model chart may be used for one or more activities, while variations may exist depending on the general market and reporting controls, such as North American versus worldwide. The document and files, containing relatively static data by product, include the identification of the marketing company, model number, size rating of the model, company, and industry size classes to which it belongs, country of origin, and company that manufactures the product. Model charts provide a key control mechanism governing the input of activity data into the system and output for distribution. A model must be defined in the model chart before data can be reported for that model. Month – Although it is recommended to use calendar months, it is acceptable to use whatever a company defines as its working month. The most important factor is consistency. New Retail – First-time title transfer of a new, never rented, unused and previously unsold machine from a dealer, distributor, or manufacturer to an end-use customer at the time of first substantial use. This includes the sale of units to “dealer owned rental fleets” (DORFs) or to an independent rental company. North America – For most of the AEM statistics programs, North America is defined as the combination of the United States and Canada. North American Marketing – A company will be considered a participating company in the North American statistics programs if it meets the following criteria in North America: a. Has an established sales/marketing branch or headquarters office. b. Supports a dealer/distributor network. c. Provides readily and commercially available product to the company’s dealers/distributors. d. Aggressively markets and sells product. e. Maintains adequate inventory to support sales of dealers. f. Can adequately collect data to satisfy all programs in which the company participates. g. Publishes and has available to customers, specification sheets and price lists for all the products marketed. h. “Test” marketing of products will not be considered as marketing criteria. Official Company Representative (OCR) – Person officially designated to represent a company in AEM affairs, usually an officer of the company and in a number of instances a member of the AEM Board of Directors. Original Equipment Manufacturer (OEM) Sale – Sale of a unit from one manufacturer to another. Generally, the marketing company should report these products, as they know the details of activity with customers and dealers. Products sold on an OEM basis FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 145 of 189 * PUBLIC * PUBLIC 63 to non-reporting companies should usually not be reported, especially if they are modified outside the bounds of the product definition. Rules regarding the reporting of OEM activity may vary by committee. It is important to prevent double reporting by the manufacturer and marketer. Participating Company – An AEM member company that participates in the statistics programs, or a non-member company that participates in the AEM statistics programs and has paid the non-member participation fee. Phase-out Models – Models no longer considered current by a reporting company, but for which company and/or dealer inventory remains. All models must remain on the Model Chart until the end of the year when the last unit is sold. Province – Largest geopolitical subdivisions within Canada. Activity reported by province should reflect the location of the first substantial use. Rental Conversion – Sale/title transfer to an end-user of any product previously reported as a first rental. This includes the sale of previously rented units to dealer owned rental fleets (DORFs). Conversion also applies to exported (usually by dealers), scrapped, or otherwise retired machines. A rental unit sold at auction should be reported as a conversion in the county of the auction. Retail Sale – Consists of both the delivery of a unit to the end-user and the settlement/title transfer for the unit by the retailer. The sequence of the two events is not significant. Also see Final Delivery. Revision – Any change to the data that was originally submitted to the IPC. Examples of a revision include a change in state, county, country, customer type, first use, cancellation of a sale with return to inventory, etc. Refer to Section IV — Reporting Programs for further details. Shipment – Transport of a unit from the manufacturer to an end-user, retail outlet, wholesale outlet or rental/leasing pool as defined below. Units shipped to a company’s trans-shipment pools or staging areas shall not be reported until shipped to entities listed above and invoiced. Units shipped to a facility where substantial changes are made to the basic product should not be reported. These machines should be reported when shipped after the changes have been made if there is a reporting program for the new product. Exceptions to this rule are explained below. End-user – Any establishment or individual who puts the product to use i.e., the consumer. Retail Outlet – Any establishment, including company stores, dealers, or distributors, that sells product to the end-user. Wholesale Outlet – Any establishment, including company branch houses, that sells to a single destination country or independent or unrelated establishment that sells to an unknown destination. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 146 of 189 * PUBLIC * PUBLIC 64 Rental/Leasing Pool - Any establishment that places equipment with the end-user through a lease, rent-to-rent, or rental-purchase agreement. Boom Trucks (CSC) - Shipped as kits to various dealers/distributors who mount them on chassis prior to delivery to end-users. The chassis is irrelevant to reporting. The kit shipment should be reported. Size Class - Series of graded classifications of measure into which products are divided. Size may include classifications of horsepower, dig depth, width of cut, carrying capacity, etc. Size may also express the specific rating of a machine or classes of sizes used in the statistics programs. Size classes span an interval of size measurement. For example, using horsepower levels such as 100 & under 110 HP in order to express clearly the specific sizes to be included in the interval. State - Largest geopolitical subdivision within the United States. Activity reported by state should reflect the location of the first substantial use. Survey - Non-binding request for information or a non-binding request for a position on a certain issue. Three-Part Reporting - Refers to the reporting of new retails, rentals, and rental conversions. Operating Weight - Working weight of a machine, often expressed in metric tons. Year - Calendar year (1 January through 31 December). APPENDIX A: QUORUMS AND VOTING The following matrix identifies, by statistics committee or group, the quorum requirements for holding a meeting and the quorum requirements for product-specific reporting programs. All participants of a product for a given chart are eligible to vote on proposals impacting that product, regardless of if they have a model in a size class impacted by the proposal. As an example: Company A, B, C, and Dare all participants of a product program, but a new proposal seeks to split a size class including models from companies A, B, and C. Company D does not participate in that size class. Company D still has voting rights because they participate in the product. Committee/Group Meeting Quorum Product/Program Approvals Voting Requirement (at a meeting or by ballot) Agricultural Latin America Statistics Program Subcommittee (AG LA SPSC) Simple Majority Simple Majority Agricultural Equipment Statistics Committee (AESC) Seven (7) reporting companies in attendance 80% of product participants, less abstentions* FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 147 of 189 * PUBLIC * PUBLIC 65 Aggregates Statistics Committee (ASC) - crushers, screens, feeders Simple Majority of all reporting companies Simple Majority of reporting companies in that product unless there are three reporting companies, t hen unanimous Agricultural Tire Committee (ATC) Simple Majority of all reporting companies Simple Majority of reporting companies Construction Equipment Latin America Statistics Task Force (CE LA STF) Simple Majority Simple Majority Cranes Statistics Committee (CSC) hydraulic cranes, truck- mounted cranes, tower cranes Five (5) reporting companies in attendance Simple Majority of reporting companies Commercial Worksite Equipment (CWE) 30% of all reporting companies Simple Majority of reporting companies Dairy Equipment Statistics Committee (DESC) Simple Majority of all reporting companies Simple Majority of reporting companies Forestry, Earthmoving & Excavators (FEE) 30% of all reporting companies Simple Majority of reporting companies Geospatial Industry Group (GIG) Simple Majority of all reporting companies Simple Majority of reporting companies Material Handling Tires Committee (MHTC) Simple Majority of all reporting companies Unanimous vote for major structural change; Simple majority for program change. Mobile Elevating Work Platforms (MEWP) Five (5) reporting companies in attendance Simple Majority of reporting companies unless there are three (3) reporting companies, then unanimous Statistics Executive Committee (SEC) Simple Majority of SEC Members Not applicable Portable Power Statistics Committee (PPSC) Simple Majority of all reporting companies Simple Majority of reporting companies Road Machinery Statistics Committee (RMSC) - pavers, planers, soil stabilizers Six (6) RMSC Participants Unanimous among Reporting Companies for that Product Road Machinery Statistics Committee (RMSC) - compaction Six (6) RMSC Participants ¾ majority among Reporting Companies for that Product Utility Equipment Statistics Committee (UESC) Six (6) reporting companies in attendance Simple Majority of reporting companies Note: Any committee not having ru les established will refer to Roberts Rules of Order. ABSTENTIONS EXPLAINED (IN ACCORDANCE WITH ROBERTS RULES) Abstentions reduce the total number of participants before the calculation takes place. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 148 of 189 * PUBLIC * PUBLIC 66 If a company cannot attend a meeting in which a vote will take place, they may submit a written confirmation to AEM of their vote, received by 5:00 pm CT the working day before the meeting. If a proposal is amended at a meeting, companies that voted via absentee ballot will be balloted on the amended version of the proposal, unless the proposal has satisfactory support or opposition to determine the outcome without the absentee company’s vote. Additionally, attending members may request to vote by ballot or written confirmation after the meeting and must do so within 10 working days (5:00pm, US Central Time) of the meeting, unless otherwise specified by the Chair. After 10 days, any non-responding companies will be counted as abstentions, and subsequently not included in the calculation for determining approval. For any proposal which has not been fully approved or rejected and announced by AEM as such, companies that have already cast a vote may change that vote until the results are officially announced by AEM. For all proposals and votes that take place outside of a formal AEM meeting, the standard voting window will be 10 working days to respond back to AEM by ballot or written confirmation, unless otherwise specified by the Chair. After 10 days, any nonresponding companies will be counted as abstentions, and subsequently not included in the calculation for determining approval. AEM will send out reminders to any companies with an outstanding vote after 5 days have passed for any given proposal, including any other points of contact on record at the company. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 149 of 189 * PUBLIC * PUBLIC 67 APPENDIX B: DUE DATES FOR COMPANY REPORTING Co mmittee o r Group AESC Product All NA Flash 9th 12:00 Date Time If Sat If Sun All 12th 12 :00 Fri Mon 12:00 Fri Mon ASC All 13th ATC All 15th 12:00 Fri Mon CPB All 20th 17:00 Mon Mon csc All 15th 17:00 Mon Mon CWE All 10th 12:00 Fri Mon CWE IF01, IF31 15th 12:00 Fri Mon CWE IF02, IF03, IF43, IF18, D801 All 13th 12:00 Fri Mon 15th 12:00 Fri Mon FEE All 10th 12:00 Fri Mon FEE EM71 15th 12:00 Fri Mon FEE 9th 12:00 Fri Mon GIG EM07, EM08, EM58 All Feb, May, Aug, Nov 20th 12 :00 Fri Mon Generators All 15th 12:00 Fri Mon Light Towers All 15th 12:00 Fri Mon MBMB All 15th 17:00 Mon Mon MEWP All 15th 12:00 Fri Mon MHTC All 15th 12:00 Fri Mon PACB All 15th 17:00 Mon Mon PTMB All 15th 17:00 Mon Mon RMSC All 1Qth 17:00 Mon Mon SMI All 15th 17:00 Mon Mon UESC All 15th 17:00 Mon Mon LAAG All, except Mexico Mexico only 9th 12:00 Fri Mon 15th 12:00 Fri Mon All 9th 12:00 Fri Mon DESC LAAG LACE Qtly . WW Ship WW Retails NA A c tuals Date Time Date Time If Sat If Sun 15th 17:00 15th 17:00 Fri Mon 15th 15th 17 :00 15th 17:00 Mon Mon 17:00 20th 17:00 Mon Mon 15th 15th 17 :00 20th 17:00 Mon Mon 17 :00 20th 17:00 Mon Mon 15th 17:00 Mon Mon 15th 17:00 Mon Mon FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 150 of 189 * PUBLIC * PUBLIC 68 APPENDIX C: DATA DISTRIBUTION TO PRODUCT NONPARTICIPANTS The standard AEM policy regarding data distribution is that companies participating in North American product programs receive reports at the same level of detail for all active product programs and published output size classes in which they participate. Each committee and/or the company's marketing certain groups of products within a committee may elect to extend eligibility for some reports to companies that market some, but not all, products within the group. The data made available may have restricted content, such as aggregated geography or activity types, or certain details may be eliminated, such as customer type or first use. There are no instances where data from one committee is shared in any form with another committee. This document delineates the policy regarding distribution of specific data under extended eligibility rules to qualifying companies. In other words, it itemizes the exceptions to standard policy of industry data distribution to only the participants in a specific product program. If a program is not listed, it reverts to the default distribution of only receiving the products reported into. In the pages that follow: • FD = "Final Deliveries" (a com bination of new machine retail sales and rental conversions) • FID = "First in the Dirt" (a combination of first rentals and new machine retail sales) AGRICULTURAL LATIN AMERICA STATISTICS PROGRAM SUBCOMMITTEE (AG LA SPSC) Industry Output reports for the following are available only to those members that report into the specific product program(s): FE01 Two Wheel Drive Farm Tractors FE22 Four Wheel Drive Farm Tractors FE05 Rectangular Balers FE06 Large Round Balers FE23 Self-Propelled Combines FE27 Self-Propelled Forage Harvesters FE52 Corn Heads FED1 Drum & Disk Mowers FERO Rotary Rakes FETD Tedders FE15 Pull Type Planters FESG Sugar Cane Harvester FESP Self-Propelled Sprayers (high clearance) FEPX Combine Platforms - Flexible Type FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 151 of 189 * PUBLIC * PUBLIC 69 FEPR Combine Platform - Rigid FEDX Combine Draper HeadsFlexible FER1 Rigid Rotary Cutters TPGD Grain Drills FEM1 Side-Pull Mower Conditioner (Suspended) FEM2 Mid-pivot Mower Conditioner (Suspended) AGGREGATES:CRUSHERS,SCREENS,FEEDERS(ASC) Industry Output reports are available only for the products in which a participant reports: PSJC Jaw Crushers PSVS Vertical Shaft Impactors The following output reports are available to all participants: iSTAT Code Product Program Name VS2C Incline Screens (2 & 4 Bearing Screens) VSH2 I Horizontal Screens VSFD Feeders AGRICULTURAL TIRE (ATC) The following reports are available only for those ATC members that report the specific product(s): iSTAT Code Sector Application TR01 Agriculture Front, Implement, Small, Flotation Tires TR02 Agriculture Tractor, Combine-Harvester, ApplicatorSprayer/Floater, Grain Cart-Wagon TR03 Forestry Skidder-Cable/Grapple, Forwarders-Cut to length (CLT ) TR04 I Industrial/Construction Skid Steer, Mini-Loader, Industrial TractorBackhoe, Telehandlers I FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 152 of 189 * PUBLIC * PUBLIC 70 AGRICULTURAL EQUIPMENT (AESC) "Tractor and Implements" Product Group Industry Output reports for all products listed under "Tractor and Implements" are available (upon request) to AESC participants reporting into any one of the following products: iSTAT Code Product Program iSTAT Code Product Program FE01 Two Wheel Drive Farm Tractors FE22 Four Wheel Drive Farm Tractors FE31 Front End Loaders FEBA Tractor Backhoe Attachments FEFS Flail Shredder FELL Box Scraper FEPH Post Hole Diggers FER1 Rigid Rotary Cutters FER2 Flexible Rotary Cutters FER3 Multi-Spindle Rotary Finishing Mower, Rigid Rear FER4 Multi-Spindle Rotary Finishing FERM Multi-Spindle Rotary Finish ing Mowers, mid-mounted FETB Tractor Mounted Blades Mower, Flexi ble Rear FESB Snow Blowers (tractor-mounted) Note: Companies will receive county level reporting for programs they report into and have county level. Companies w ill receive state/province level reporting if they do not report into the product. For those products you must request a report from the Data Processor. "Forage and Harvest Equipment" Product Group Industry Output reports for all products listed under "Forage and Harvest Equipment" are available (upon request) to A ESC participants reporting into any one of the following products: FE05 Rectangular Balers FE06 Large Round Balers FE23 Self-Propelled Combines FE27 Self-Propelled Forage Harvesters FE52 Corn Heads FED1 Drum & Disk Mowers FEDR Combine Draper Heads-Rigid FEDX Com bine Draper HeadsFlexible FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 153 of 189 * PUBLIC * PUBLIC 71 FEFT Forage Harvester Headers FEM1 Side-Pull Mower Conditioner FEM2 Mid-Pivot Mower Conditioner FEM3 Mounted Mow er Conditioner FEPC Combine Pickup Headers FEPX Combine Platforms - Flexible Type FERO Rotary Rakes FETD Tedders FEW2 Windrower Rotary Auger Heads FEW3 Windrowers, Self-Propelled FEWC Windrower Draper Heads FEWR Finger Wheel Rake Note: Companies will receive county level reporting for programs they report into and have county level. Companies w ill receive state/province level reporting if they do not report into the product. For those products you must request a report from the Data Processor. "Crop Production Equipment" Product Group Industry Output reports for all products listed under "Crop Production Equipment" are available (upon request) to AESC participants reporting into any one of the following products: .. lt,,.-,i ...'1U - .. - --;,:li-{~• IF.1111 ~•11°'i .,.. .. .. fl.~••-11r - .. - l:.li(eT:in~i!l~ , .. 11,r" ■■ FE15 Pull Type Planters FE16 Mounted Planters FE56 Mounted Planters FECD Compact Disc FED3 Disk Harrows, Offset FER5 Rotary Tillers FESP Self-Propelled Sprayers (high clearance) FEST Strip Tillage TP11 Air Hole Drill Standard Trip TP12 A ir Disc Drill Int Tank TP13 Air Disc Drill No Tank TP53 Plows, Moldboard TPA3 Air Delivery Systems TPCC Combination Chisel Plow s TPCP Chisel Plows TPFP Field Cultivator, Pull TPG1 3-Point Mounted Drills TPG2 Pull-Type Rigid Drills TPG3 No-Till Drills TPGF Folding Grain Drills TPMP Minimum Tillage Primary TPTP Combination Primary Tillage TPTS Combination Secondary Tillage TPVT Vertical Tillage FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 154 of 189 * PUBLIC * PUBLIC 72 ~ Companies will receive county level reporting for programs they report into and have county level. Companies w ill receive state/province level reporting if they do not report into the product. For those products you must request a report from the Data Processor. "Ag Precision Guidance" Product Group Output_reports are available only for the product(s) into which a member participant reports: iSTAT Code Product Program Name PG01 Receivers PG02 I Steering Kits PG03 Activation Upgrades PG04 I Monitors o Monthly shipments with Quarterly Output CONSTRUCTION EQUIPMENT LATIN AMERICA STATISTICS TASKFORCE (CE LA STF) Industry Output reports for the following products are available only to those reporting into the specific product:.(fil Crawler Tractors EM04 4WD Loaders EM07 Motor Graders EM08 Rigid Frame Haulers EM58 Articulated Haulers IF11 Skid Steer Loaders IF1 8 Loader Backhoes EXHW Wheel Excavators EX HC Crawler Excavators CONTRACTOR PUMP BUREAU (CPB) Industry Output reports for the following products are available to all participants in the CP S: CB20 Auto-Prime Solids Hand CB21 Auto-Prime Non Solids FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 155 of 189 * PUBLIC * PUBLIC 73 CB22 Wet Prime Non-Trash CB23 Wet Prime Trash CB24 Wet Prime-Rotary CB25 Diaphragm Pumps CB34 SPEP Elec. Sub-1 Phase CB35 SPEP Elec. Sub-3 Phase CB37 Sound Attenuated Pumps (Suspended) CB38 Pump Heads, Hydraulic Sub CB39 Hydraulic Power Units (Suspended) CB40 Alternative Fuel Pumps (Suspended) o Monthly Shipment report by total COMMERCIAL WORKSITE EQUIPMENT (CWE) Industry Output reports are available to all CWE_participants reporting into any one of these products: iSTAT Code Product Program Name IF21 Rough-Terrain Forklifts - 2WD vertical mast IF23 I Rough-Terrain Forklifts - 4WD vertical mast IF26 Telescopic Handlers o Monthly flash reports o Monthly reta ils (FID) by state and province, o excluding customer type, first use, and attribute data o Monthly shipments by state and province o Monthly shipments by cou ntries of the world o Monthly worldwide retail sales by country Industry Output reports are available only for the following products into which a CWE participant reports: IF01 Pedestrian Trenchers (Suspended) IF02 Riding Trenchers (Suspended) IF03 Vibratory Plows (Suspended) IF11 Skid Steers FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 156 of 189 * PUBLIC * PUBLIC 74 IF1 2 Compact Track Loaders IF31 Tracked Utility Loaders IF43 Backhoes Sent: Wednesday, September 11, 2024 5:43 PM To: Stevenson, Ethan ; McCaughey, William C. Cc: Lockerby, Michael J. ; Conrad, Joseph ; WestmanCherry, Melissa Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Ethan, We are confirming if we are authorized to accept service on behalf of HAI and will get back to you. Also, by service of a CID on HAI, does this mean the FTC is setting aside Specification 1 as to AEM, or otherwise limiting the CID to aggregate data in AEM’s possession, custody, or control? This would be helpful to know with the petition to quash date next week. Finally, as an update, we will be making a production this week on behalf of AEM. Thank you, Diane Diane Hazel Partner Foley & Lardner LLP | Denver, CO Phone 720.437.2034 FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 177 of 189 * PUBLIC * PUBLIC Iii View My Bio | Visit Foley.com | dhazel@foley.com From: Stevenson, Ethan Sent: Wednesday, September 11, 2024 11:56 AM To: McCaughey, William C. ; Hazel, Diane Cc: Lockerby, Michael J. ; Conrad, Joseph ; WestmanCherry, Melissa Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 ** EXTERNAL EMAIL MESSAGE ** Diane, We are preparing to issue a CID to HAI. Will you accept service? Best, Ethan From: Stevenson, Ethan Sent: Thursday, September 5, 2024 7:18 PM To: McCaughey, William C. ; Hazel, Diane Cc: Lockerby, Michael J. ; Conrad, Joseph ; WestmanCherry, Melissa Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Received. Thanks, Bill. From: McCaughey, William C. Sent: Thursday, September 5, 2024 7:12 PM To: Hazel, Diane ; Stevenson, Ethan Cc: Lockerby, Michael J. ; Conrad, Joseph ; WestmanCherry, Melissa Subject: [Not Virus Scanned] RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Evening Ethan, Please see the attached correspondence and production of documents, as requested. We look forward to connecting tomorrow. Regards, Bill William C. McCaughey FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 178 of 189 * PUBLIC * PUBLIC Associate Foley & Lardner LLP | New York, NY Phone 212.338.3425 View My Bio | Visit Foley.com | wmccaughey@foley.com • From: Hazel, Diane Sent: Thursday, September 5, 2024 2:07 PM To: Stevenson, Ethan Cc: Lockerby, Michael J. ; Conrad, Joseph ; McCaughey, William C. ; Westman-Cherry, Melissa Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Ethan, We will be sending over some documents today and authority substantiating our position. Speak to you tomorrow. Thank you, Diane Diane Hazel Partner Foley & Lardner LLP | Denver, CO Phone 720.437.2034 View My Bio | Visit Foley.com | dhazel@foley.com • From: Stevenson, Ethan Sent: Wednesday, September 4, 2024 4:35 PM To: Hazel, Diane Cc: Lockerby, Michael J. ; Conrad, Joseph ; McCaughey, William C. ; Westman-Cherry, Melissa Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 ** EXTERNAL EMAIL MESSAGE ** Diane, During our August 29 meet and confer, AEM stated that much of the data requested by our CID is not in AEM’s custody, possession, or control. Please provide the legal and factual basis for your position in writing in advance of our meeting on Friday. Should AEM maintain this position, we will prepare a CID to issue directly to HAI. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 179 of 189 * PUBLIC * PUBLIC Best, Ethan From: Stevenson, Ethan Sent: Tuesday, September 3, 2024 3:25 PM To: 'Hazel, Diane' Cc: 'Lockerby, Michael J.' ; Conrad, Joseph ; 'McCaughey, William C.' Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Diane, Please see the attached correspondence regarding confidentiality. Best, Ethan From: Stevenson, Ethan Sent: Tuesday, September 3, 2024 12:39 PM To: Hazel, Diane Cc: Lockerby, Michael J. ; Conrad, Joseph ; McCaughey, William C. Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Thanks, Diane. Let’s take the 12 ET slot on Friday 9/6. I’ll send an invite. From: Hazel, Diane Sent: Friday, August 30, 2024 4:45 PM To: Stevenson, Ethan Cc: Lockerby, Michael J. ; Conrad, Joseph ; McCaughey, William C. Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Ethan, Thank you for confirming the extension of the deadline to file a petition to quash to September 18. In the meantime, we will work on getting the information requested ready for production to substantiate the position articulated during yesterday’s meet and confer. We unfortunately are not available those times next Thursday but are available Friday the 6th at 12 ET or 5 ET. We also can provide availability for the next week if those times do not work. Have a good Labor Day weekend. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 180 of 189 * PUBLIC * PUBLIC Best, Diane Diane Hazel Partner Foley & Lardner LLP | Denver, CO Phone 720.437.2034 View My Bio | Visit Foley.com | dhazel@foley.com From: Stevenson, Ethan Sent: Friday, August 30, 2024 10:13 AM To: Hazel, Diane Cc: Lockerby, Michael J. ; Conrad, Joseph Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 ** EXTERNAL EMAIL MESSAGE ** Diane, Please see the attached letter extending AEM’s deadline to file a petition to quash the CID. As I said yesterday, I think it’d be useful to check in next week. Are you available Thursday 9/5 between 12:30 pm or 4-5 pm ET? Thanks, Ethan From: Hazel, Diane Sent: Monday, August 26, 2024 10:34 AM To: Stevenson, Ethan Cc: Lockerby, Michael J. ; Conrad, Joseph Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 Thank you, Ethan. We look forward to speaking with you and Joe on Thursday. Diane Hazel Partner Foley & Lardner LLP | Denver, CO Phone 720.437.2034 View My Bio | Visit Foley.com | dhazel@foley.com I R From: Stevenson, Ethan Sent: Monday, August 26, 2024 7:17 AM FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 181 of 189 * PUBLIC * PUBLIC To: Hazel, Diane Cc: Lockerby, Michael J. ; Conrad, Joseph Subject: RE: CID to Association of Equipment Manufacturers, File No. 211-0191 ** EXTERNAL EMAIL MESSAGE ** Diane, Thanks for reaching out. I’m CC’ing my colleague Joe Conrad who’ll be working with me on the CID. Let’s do 10:30 ET on Thursday. I’ll send an invite. Best, Ethan From: Hazel, Diane Sent: Saturday, August 24, 2024 3:18 PM To: Stevenson, Ethan Cc: Lockerby, Michael J. Subject: CID to Association of Equipment Manufacturers, File No. 211-0191 I You don't often get email from dhazel@foley.com. Learn why this is important Ethan, We represent Association of Equipment Manufacturers (AEM). The FTC served AEM with a CID, and we are reaching out to schedule the meet and confer on Thursday, August 29. We are available at 10:30 or 12 ET on Thursday. Please let us know if one of those times works for you. Thank you, Diane Diane Hazel Partner Foley & Lardner LLP 1400 16th Street, Suite 200, Denver, CO 80202 Phone 720.437.2034 View My Bio | Visit Foley.com | dhazel@foley.com I R The information contained in this message, including but not limited to any attachments, may be confidential or protected by the attorney-client or work-product privileges. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message and any attachments or copies. 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Unless expressly stated otherwise, nothing contained in this message should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means. The information contained in this message, including but not limited to any attachments, may be confidential or protected by the attorney-client or work-product privileges. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message and any attachments or copies. Any disclosure, copying, distribution or reliance on the contents of this message or its attachments is strictly prohibited, and may be unlawful. Unintended transmission does not constitute waiver of the attorney-client privilege or any other privilege. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Unless expressly stated otherwise, nothing contained in this message should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means. The information contained in this message, including but not limited to any attachments, may be confidential or protected by the attorney-client or work-product privileges. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message and any attachments or copies. Any disclosure, copying, distribution or reliance on the contents of this message or its attachments is strictly prohibited, and may be unlawful. Unintended transmission does not constitute waiver of the attorney-client privilege or any other privilege. Legal advice contained in the preceding message is solely for the benefit of the Foley FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 183 of 189 * PUBLIC * PUBLIC & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Unless expressly stated otherwise, nothing contained in this message should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means. The information contained in this message, including but not limited to any attachments, may be confidential or protected by the attorney-client or work-product privileges. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message and any attachments or copies. Any disclosure, copying, distribution or reliance on the contents of this message or its attachments is strictly prohibited, and may be unlawful. Unintended transmission does not constitute waiver of the attorney-client privilege or any other privilege. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Unless expressly stated otherwise, nothing contained in this message should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 184 of 189 * PUBLIC * PUBLIC EXHIBIT D FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 185 of 189 * PUBLIC * PUBLIC UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION WASHINGTON, D.C. 20580 Ethan Stevenson Bureau of Competition (202) 531-8971 Estevenson1@ftc.gov October 4, 2024 By Email Diane Hazel, Esq. Foley & Lardner 1400 16th St., Suite 200 Denver, CO 80202 Re: Deere & Company, FTC File No. 211-0191 Dear Diane: I write regarding the Federal Trade Commission’s Civil Investigative Demand (“CID”) issued to Hargrove & Associates (“HAI”) on September 16, 2024. The deadline for compliance was previously extended to October 21, 2024, and the deadline to file a petition to limit or quash the CID is October 8, 2024. We met and conferred about the CID and the CID issued to HAI’s parent organization, the Association of Equipment Manufacturers (“AEM”), on September 23, October 1, October 3, and October 4. During our conferences, HAI maintained that it could not produce responsive data under the CID without the consent of third parties who submitted the data. Staff explained that we disagree that HAI must obtain third-party consent to produce responsive data. And we do not believe such a requirement would excuse CID noncompliance. But we agreed to consider whether certain aggregate data sets possessed by AEM can satisfy the needs of our investigation without requiring the production of the third-party data submissions in HAI’s possession. Staff emphasized that whether AEM’s aggregate data will satisfy the needs of our investigation is highly uncertain because the contents of AEM’s aggregate data are unknown to us. Pursuant to Commission Rule 2.7(l), 16 C.F.R. § 2.7(l), and to allow AEM to produce, and staff to review, a representative sample of AEM’s aggregate data, the deadline to file a petition to limit or quash the CID is hereby extended to October 10, 2024. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 186 of 189 * PUBLIC * PUBLIC Diane Hazel, Esq. October 4, 2024 Page 2 Sincerely, Approved: /s/ Geoffrey M. Green Geoffrey M. Green Assistant Director Anticompetitive Practices I Division Bureau of Competition /s/ Ethan D. Stevenson Ethan D. Stevenson FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 187 of 189 * PUBLIC * PUBLIC EXHIBIT E FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 188 of 189 * PUBLIC * PUBLIC .,,._~..~-. UNITED STATES OF AMERICA :N.., ·i. -..: ~ .. 0 FEDERAL TRADE COMMISSION WASHINGTON, D.C. 20580 ".\1(1,0.~ .. Ethan Stevenson Bureau of Competition (202) 531-8971 Estevenson1@ftc.gov October 10, 2024 By Email Diane Hazel, Esq. Foley & Lardner 1400 16th St., Suite 200 Denver, CO 80202 Re: Deere & Company, FTC File No. 211-0191 Dear Diane: I write regarding the Federal Trade Commission’s Civil Investigative Demand (“CID”) issued to Hargrove & Associates (“HAI”) on September 16, 2024. The deadline for compliance was previously extended to October 21, 2024, and the deadline to file a petition to limit or quash the CID was previously extended to October 10, 2024. On October 8, HAI produced a sample of aggregate and anonymized data responsive to the CID. In our previous conferences, staff agreed to consider whether this type of aggregate data can satisfy the needs of our investigation without requiring the production of the third-party data submissions in HAI’s possession. We met and conferred on October 9. During our conference, staff explained that the FTC’s investigation requires more granular data than what HAI produced on October 8, including, for example, data that breaks out products by the individual columns in model charts provided by HAI’s parent company the Association of Equipment Manufacturers’ (e.g. 0–20 horsepower 2WD tractors). HAI agreed to investigate whether HAI or AEM possesses more granular aggregate data and requested an extension of the deadline to file a petition to limit or quash the CID. Staff remains willing to continue negotiating with HAI regarding the production of aggregate data that may satisfy our investigative needs but is unlikely to grant a further extension of the deadline to file a petition to limit or quash the CID. Pursuant to Commission Rule 2.7(l), 16 C.F.R. § 2.7(l), the deadline to file a petition to limit or quash the CID is hereby extended to October 16, 2024. FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/16/2024 OSCAR NO. 611970 -PAGE Page 189 of 189 * PUBLIC * PUBLIC Diane Hazel, Esq. October 10, 2024 Page 2 Sincerely, Approved: /s/ Geoffrey M. Green Geoffrey M. Green Assistant Director Anticompetitive Practices I Division Bureau of Competition /s/ Ethan D. Stevenson Ethan D. Stevenson --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A71516c022722d349. Public record. Not legal advice.