FTC v. $TPR: In the bag?
Yesterday we got Tapestry’s and Capri’s responses to the FTC administrative complaint, and it’s fair to say Tapestry came out swinging. Sure, you obviously expect a defendant company to take the gloves off in an answer to a complaint, but Tapestry threw the gloves out of the ring and pulled some brass knuckles out of its waistband.
What do I mean?
For the most part, answers are fairly boring. They’ll include a bit of a spicy intro saying “Plaintiff has seriously misjudged this case” and “Plaintiff doesn’t even have a case,” and things like that. However, that spicy intro is quickly followed by paragraph after paragraph of recitations like “Defendant denies it is the dominant market player,” or “Defendant admits it sells products in California,” or “Defendant admits its earnings increased 5% year over year in 2023 but denies Plaintiff’s assertion to the extent Plaintiff characterizes Defendant as a ‘dominant player.’” Basically it’s an exercise in admitting the things you have to admit to and denying or saying “no response” to literally everything that assumes some level of judgment or legal conclusion.
That structure rings true here. We have a spicy intro and all of those boring recitations. Let’s take a look at an example of the recitations:
from Answer and Defenses of Respondent Tapestry, Inc.
Admitting you’ve got marketing departments? How scandalous!
But Tapestry used its intro to get a little more spicy than perhaps I expected. Sure, they said all those things about the FTC mischaracterizing the case and not understanding the world of fashion:
from Answer and Defenses of Respondent Tapestry, Inc.
However, Tapestry also slipped in a sort of “watching Khan’s FTC litigate is like watching Nadal lose on clay” cheeky little footnote:
from Answer and Defenses of Respondent Tapestry, Inc.
It was a funny footnote, though not an unwarranted one. The FTC has lost pretty much everything under Lina Khan’s leadership. Even its “win” (e.g., the claim that it has expanded the “actual potential competition” theory) was really just the judge saying that the theory the FTC alleged was plausible on its face, though ultimately a losing theory as applied to the facts at hand in the Meta / Within case.
So other than this enjoyable jab, what did Tapestry’s answer actually include, and how has it changed my view of the case (if at all)?