Summary

I’ve spent more than 30 years inside the e-commerce business. I launched online retail at Blockbuster in 1995, built the e-commerce operations at Best Buy and Target, and today I’m Chief Commerce Strategy Officer at Publicis Groupe, where I advise many of the largest retailers and brands in the world. I write a column for Forbes, co-host The Jason & Scot Show podcast, sit on the board of a publicly traded retailer, and the National Retail Federation named me one of the 25 people shaping the future of retail.

That background is why the defense in United States v. Bazaarvoice retained me as its industry expert on e-commerce, and why the court accepted me as one when the government tried to keep me off the stand. I’ve only done this once. But it was a big one, and the record is public.

The case: United States v. Bazaarvoice, Inc.

In June 2012, Bazaarvoice bought PowerReviews, its main rival in online product ratings and reviews, for $168 million. The deal was small enough that it didn’t require pre-merger notification to the government. The Department of Justice sued anyway, in January 2013, arguing the acquisition violated Section 7 of the Clayton Act by eliminating Bazaarvoice’s closest competitor.

The case went to a full trial in federal court in San Francisco before Judge William H. Orrick, from September 23 to October 15, 2013. The court heard 40 witnesses, read more than 100 depositions, and reviewed 980 exhibits. In January 2014, Judge Orrick issued a 141-page opinion finding that the acquisition violated the Clayton Act. Bazaarvoice was ordered to divest PowerReviews, and sold it later that year.

Antitrust lawyers still cite the case. It was one of the first litigated challenges to an already-completed deal that fell below the reporting threshold, and it turned on what a company’s own internal documents said about its competitors. Skadden, Cooley, and Jones Day all published client alerts on it. It’s the kind of case where every witness got scrutinized.

Case number 13-cv-00133-WHO, U.S. District Court for the Northern District of California. The Department of Justice keeps the full public docket online.

My role

Bazaarvoice retained me as its industry expert on e-commerce. At the time I was leading the commerce practice at Razorfish, after 15-plus years running e-commerce inside retailers and advising them from the outside. I wrote an expert report, sat for deposition, and testified live at trial.

The government moved to exclude my testimony before trial. Judge Orrick denied the motion in relevant part, ruling that I had “sufficient experience and recognition to qualify as an expert” in e-commerce and social commerce. My testimony on the e-commerce market, including the growth of online retail relative to stores and the way digital shopping influences offline sales, is cited in the court’s findings of fact.

For the record: my side lost. The court ruled for the government on the merger question, which was an antitrust question, not an e-commerce one. I’d rather you hear that from me than find it on the docket. What survived the loss is the part that matters to a lawyer evaluating an expert: I was qualified, I testified, I held up under cross-examination by the Department of Justice, and the court used my testimony.

What I can testify about

My expertise is how retail and e-commerce actually work: the operations, the economics, the technology, and the consumer behavior. Typical subject areas:

• How e-commerce businesses are built and run: site operations, merchandising, fulfillment, returns, customer service, and the economics of each • Digital marketing and advertising in retail: search, social, retail media networks, affiliate, email, and how marketers evaluate and buy them • Marketplaces and platforms: Amazon, Walmart, eBay, TikTok Shop, and how sellers and brands operate on them • Ratings, reviews, and user-generated content in commerce • Consumer shopping behavior online and in stores, and the gap between what shoppers say and what they do • Industry practices and standards: what a reasonable retailer, brand, or agency would do in a given situation, and what the customary commercial arrangements look like • Agency and vendor relationships in commerce: how retailers select and manage technology and marketing partners • Retail industry structure and competition from an operator’s point of view

I am not an economist and I don’t offer opinions on antitrust economics or damages calculations. I work well alongside the economist who does.

How I work with counsel

• Straight answers, early. If I don’t think the facts support the position, I’ll say so before you’ve spent money on a report.
• Plain English. I’ve spent 30 years explaining e-commerce to boards, CEOs, and conference audiences. A judge or jury is not harder than a board.
• Sourced. I cite primary data (Census Bureau, company filings, earnings calls) and I’ll tell you which industry statistics won’t survive cross-examination.
• Conflicts checked first. I advise many large retailers and brands through Publicis Groupe, so the first step in any engagement is a conflict check. I’ll tell you quickly if I can’t take the matter.
• Engagements run through Retailgeek LLC, independent of my Publicis role.

Available for consulting expert work, expert reports, depositions, and trial testimony. Based in Chicago; I travel.

Contact

Please include the parties, the court, and the subject matter so I can run a conflict check before we talk.