UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL TRADE COMMISSION, 

 Plaintiff, 

 v. 

ARDAGH GROUP, S.A., 

COMPAGNIE DE SAINT-GOBAIN, and 

SAINT-GOBAIN CONTAINERS, INC., 

 Defendants. 

 Case No. 1:13-CV-01021 (BJR) 

 PUBLIC VERSION 

PLAINTIFF’S REPLY MEMORANDUM OF LAW 

IN FURTHER SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION 

REDACTED VERSION 

FOR PUBLIC FILING* 

*The Federal Trade Commission files this non-confidential redacted version of its Reply 

Memorandum of Law in Further Support of its Motion for Preliminary Injunction, filed 

September 30, 2013. The Protective Order requires all information designated “Confidential” to 

be redacted from the public version of the pleading filed with the court. Although Defendants 

designated all information and documents redacted in this Memorandum as “Confidential,” most 

of the information does not appear to be commercial information, the disclosure of which would 

cause injury to their businesses. 
ii 

TABLE OF CONTENTS 

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

ARGUMENT.................................................................................................... 4 

I. THE FTC HAS RAISED “SERIOUS, SUBSTANTIAL” ISSUES APPROPRIATE FOR 

AN ADMINISTRATIVE TRIAL. .................................................................... 4 

II. DEFENDANTS DENY AND MISREPRESENT BASIC FACTS ABOUT THE 

 INDUSTRY................................................................................................. 5 

A. Defendants’ Puzzling Account Of Competition Is Not Credible.............................. 5 

B. Defendants’ Paid Litigation Consultants Are Not Credible.................................... 6 

C. The Documentary And Testimonial Record Is The Best Evidence Of The Facts........... 9 

D. Defendants’ Market Trend Arguments Are Misleading, Irrelevant, Or Both...............11 

III. DEFENDANTS MISINTERPRET AND MISAPPLY CASE LAW........................... 13 

IV. THE RELEVANT GEOGRAPHIC MARKET IS THE UNITED STATES.................. 19 

V. THE TRANSACTION WILL LIKELY LEAD TO REDUCED COMPETITION AND 

 HIGHER PRICES..................................................................................... 21 

A. There Are Extraordinarily High Barriers To Entry and Expansion.......................... 22 

B. The Proposed Acquisition Will Eliminate Head-to-Head Competition Between Ardagh 

and Saint-Gobain.................................................................................... 22 

C. The Relevant Markets Are Ripe For Coordination............................................. 23 

D. Defendants’ Speculative Efficiencies Claims Fail............................................. 24 

VI. THE EQUITIES STRONGLY FAVOR PRELIMINARY RELIEF............................ 25 

CONCLUSION............................................................................................... 25
1 

INTRODUCTION 

 Relying on Defendants’ ordinary business documents and the testimony of Defendants’ 

own executives and customers, the Commission’s opening brief showed how Ardagh’s proposed 

acquisition of Saint-Gobain would create a duopoly in two relevant markets with high barriers to 

entry and conditions ripe for coordination. Those markets are the manufacture and sale of glass 

containers to (1) Brewers and (2) Distillers. In response, Defendants rely on faulty legal 

arguments, misleading depictions of market trends, and the outright denial of basic facts about 

their own industry. Indeed, the assertions in Defendants’ brief and the report of their hired 

economist are truly remarkable in their detachment from the reality of the marketplace. 

Defendants ask this Court to believe that: 

 “[G]lass container manufacturers do not set . . . prices based on competition with each 

other.”1

 “There Is Only Limited Competition Between Ardagh and [Saint-Gobain].”2

 “[W]hatever it is that constrains the defendants’ pricing to beer customers, it is not 

rivalry with each other or O-I.”3 

These stunning claims are irreconcilable with Defendants’ own business documents and 

the testimony of Defendants’ own executives and customers, plastic and metal container 

companies, and Defendants’ only other major glass competitor, Owen-Illinois. For example: 

 Ardagh stated in a securities offering last year: “We are subject to intense competition 

from other glass container producers against whom we compete on the basis of price, 

quality, customer service, reliability of delivery and marketing.”4

 It is undisputed that glass container suppliers bid against each other to win contracts 

from Brewers and Distillers, but do not bid against plastic and metal suppliers.5

 

1

 Defendants’ Memorandum of Law in Opposition to the Federal Trade Commission’s Motion for a Preliminary 

Injunction (“Def. Br.”) at 4. 

2

 Def. Br. at 31. 

3

 Sanghvi Report ¶ 181. 

4

 PX 1393-071. 
• Many Brewers and Distillers have testified that they use bidding among glass 

container suppliers to get better prices and other benefits. 

• Brewers and Distillers do not change their brands' packaging based on variations in 

the relative prices of glass, metal, or plastic containers . 

• 

Defendants simply hide from or deny the facts they would rather not acknowledge. 

Twenty-eight different Brewers and Distillers provided deposition testimony in this case. These 

witnesses included many of the largest and best-known Brewers and Distillers in the United 

States. Nine of Defendants' own top executives also testified, and Defendants and third patties 

produced well over two million documents. The weight of this extensive body of evidence 

unquestionably suppmts the Commission 's case. For that reason, Defendants' brief attempts to 

minimize the value of the documentruy and testimonial evidence and repeatedly relies, instead, 

on the made-for-litigation pronmmcements of Defendants' own paid consultants (who 

unsmprisingly echo the Defendants' brief). 

Since the facts of this case so cleru-ly illustrate why Defendants' proposed acquisition 

must be enjoined, Defendants seek to focus on the facts of other cases from decades ago. 

Defendants' reliance on cases such as United States v. Continental Can. Co, 378 U.S. 441 (1964) 

and In re Owens-Illinois, 11 5 F.T.C. 179 (1992) is misplaced. As explained below, Defendants 

misintetpret those rulings and improperly ask this Comt to rely on their factual fmdings, which 

are inelevant here. Cmiously, Defendants' interest in historical cases does not extend to 

Anchor's own, more recent 2001 antitmst lawsuit, which they address only in a footnote. 

2 
3 

Defendants cannot explain why the Court should ignore Anchor’s admissions that the relevant 

antitrust markets for assessing a merger among major glass suppliers exclude cans and plastic 

bottles. As Anchor avowed, “customers depend on competition among glass container 

manufacturers to keep prices down,” and “[f]or a substantial percentage of purchasers of glass 

containers, substitution of other materials such as plastic would not be feasible” in response to an 

increase in the price of glass containers.7 

Defendants’ silence is often telling. Defendants do not contest the extraordinarily high 

barriers to entry in this industry. Defendants also do not contest that the relevant geographic 

market for Distillers is the United States, and they concede that the relevant geographic market is 

no broader than the United States for Brewers. Defendants cavil that the relevant geographic 

market for sales to Brewers should be analyzed on a “local or perhaps regional” basis, but, as 

explained below, the United States is the appropriate geographic market for sales to Brewers. 

 Given the absence of any direct price competition between glass containers and plastic 

or metal containers, Defendants’ brief parses long-term industry statistics in a misleading attempt 

to argue that “glass container manufacturers are fighting a losing battle against the makers of 

metal and plastic containers.”8

 This dismal portrayal of the glass container industry is at odds 

with the facts. For example, the proportion of beer packaged in cans versus glass bottles is 

almost exactly the same today as it was thirty years ago, and that ratio has remained quite stable 

over that period, even as the price of glass containers relative to cans has risen approximately 80 

percent.9

 Ardagh’s own eagerness to spend $1.7 billion on its third purchase of a U.S. glass 

container firm in two years also belies Defendants’ dire projections. Moreover, Defendants’ 

 

7

 PX 1379 (Am. Complaint) ¶ 12. 

8

 Def. Br. at 1. 

9

 PX 4067 (Beer Institute Brewers’ Almanac 2012, “Package Mix Chart”); PX 0006 (Expert Report of Dr. Frederick 

Warren-Boulton) ¶ 51. 
4 

long-term trend arguments are beside the point. Comparative demand trends for glass bottles 

and metal or plastic containers are largely irrelevant where, as here, the products are not 

economic substitutes and the sales of one do not respond to relative price changes of the other. 

The merits trial in this case begins on December 2nd at the FTC. The evidence shows 

that the proposed acquisition is likely to lead to a durable duopoly and result in anticompetitive 

effects in two relevant product markets. The Commission has undeniably identified questions 

“going to the merits so serious, substantial, difficult and doubtful as to make them fair ground for 

thorough investigation, study, deliberation and determination by the FTC in the first instance and 

ultimately by the Court of Appeals.” FTC v. H.J. Heinz Co., 246 F.3d 708, 714-15 (D.C. Cir. 

2001). Because preserving the status quo during the merits trial is necessary to protect the public 

interest, this Court should grant the Commission’s motion for a preliminary injunction.10 

ARGUMENT 

I. THE FTC HAS RAISED “SERIOUS, SUBSTANTIAL” ISSUES 

APPROPRIATE FOR AN ADMINISTRATIVE TRIAL. 

Defendants and the FTC appear to agree on the standard governing the FTC’s right to 

injunctive relief under Section 13(b) of the FTC Act.11 “[T]he standard for likelihood of success 

on the merits is met” here because “the FTC has raised questions going to the merits so serious, 

substantial, difficult and doubtful as to make them fair ground for thorough investigation, study, 

deliberation and determination by the FTC in the first instance and ultimately by the Court of 

Appeals.” Heinz, 246 F.3d at 714-15 (quotation omitted). Defendants’ arguments do not come 

 

10 Injunctive relief is particularly important here where, cognizant of the strength of the Commission’s case, 

Defendants’ opposition brief disclosed for the first time a professed intent to sell certain glass plants to an 

unidentified third party and to freeze prices for certain customers. Absent an injunction, a sale of plants to an 

unvetted third party could put those plants out of reach of any remedy to be fashioned by the Commission if the 

transaction is held to be anticompetitive following the merits trial. At the pre-hearing conference on September 24, 

2013, this Court excluded Ardagh’s remedial efforts from the hearing. Accordingly, the Commission will not 

address them further in this brief. 

11 See Plaintiff’s Memorandum of Law in Support of Its Motion for Preliminary Injunction (“FTC Br.”) at 12-15; 

Def. Br. at 7-8. 
close to extinguishing the "serious, substantial" questions going to the merits. No compelling 

public equities favor allowing Ardagh to acquire Saint-Gobain before the conclusion of the 

merits trial that begins on December 2nd. Rather, the public interest in effective antitmst 

enforcement strongly favors preliminruy relief because it is necessaty to preserve an adequate 

remedy. Thus, prelimina1y relief is wananted. 

II. DEFENDANTS DENY AND MISREPRESENT BASIC FACTS ABOUT 

THE INDUSTRY. 

A. Defendants' Puzzling Account Of Competition Is Not Credible. 

In Defendants' remarkable account of their own industry , "glass container manufacturers 

do not set . . . prices based on competition with each other," 12 and "there is only limited 

competition between Ardagh and [Saint-Gobain]." 13 While denying the obvious - that glass 

container fnms compete with each other on price - Defendants simultaneously insist that glass 

container prices are closely consu·ained by competition with plastic and metal containers.

14 This 

illogical account of competition cannot be reconciled with Defendants' own business documents, 

the testimony of their executives, and the testimony of their Brewer and Distiller customers. 

In fact, each of the Three Majors in the glass container indus by u·eats the other two as its 

primaty competitors, 15 and the Three Majors bid against each other - competing on price - for 

the business of Brewers and Distillers.

16 That's why Ardagh told investors last year that it faces 

"intense competition from other glass container producers against whom we compete on the 

12 Def. Br. at 4. 

13 Def. Br. at 31. 

14 See Def. Br. at 4· 6, 15-24. 

5 

IH Tr. at 38-40); PX 2000-048-058 

cf Grewe Dep. at 94-98. 
basis of price, quality, customer serv ice, reliability of delivery and marketing."17 Indeed, 

Defendants admit that overl percent of the revenue from each Defendant's most significant 

lost sales to Brewers and Distillers in the past decade went to another glass supplier. 18 

B. Defendants' Paid Litigation Consultants Ar e Not Cr edible. 

Simply put, Defendants' ordinary business activities would make absolutely no sense if 

th e account of competition in Defendants' brief is to be believed. Thus, Defendants essentially 

ask the Comt to ignore most of the docun1enta1y and testimonial evidence, and instead rely 

17 PX 1393-071. 

18 See FTC Br. at 23-24 n.87 (citing Defendants' request for admission responses). 

19 PX 1264-017; PX 1535; PX 2000-292, -340; PX 1033-009. 

20 PX 102 1; PX 14 18; PX 1068-025; PX 2366. 

21 PX 1067-020; PX 1068-036; PX 2019-036, -037, -048. 

6 

-059-066 
7 

primarily on the sources that undergird their brief: a cherry-picked assortment of articles they 

found on the internet and the pronouncements of a coterie of highly paid litigation consultants, 

most of whom are utterly unqualified to opine on the relevant issues.26

Three of Defendants’ consultants – Raymond Bourque, Rob Wallace, and Michael 

Kallenberger – opine on topics for which they are unqualified to provide expert testimony. 

These hired consultants bring no recognized methodologies or useful analytical tools to bear on 

the facts. For example, Mr. Wallace, who has already been disqualified from testifying by at 

least two other courts, reached his opinions here by relying on approximately 40 websites, but 

not a single business document from either Ardagh or Saint-Gobain.27 The Commission has 

separately filed a motion in limine to exclude the testimony of these unqualified consultants. 

 Defendants also rely heavily on their hired economist, whose flawed analysis underlies 

many of the most astonishing claims in Defendants’ brief. For example, he asserts that: 

 “[D]efendants are not meaningful competitors with one another...regardless of the 

definitions of the relevant markets”28 

 “Glass suppliers do not impact one another’s pricing.”29

 “There is little competitive interaction between the defendants for beer and spirits 

customers even within a ‘glass-only’ market.”30

 “[W]hatever it is that constrains the defendants’ pricing to beer customers, it is not rivalry 

with each other or O-I.”31 

 

26 See, e.g., Def. Br. at n.30-34, 37-40 (citing internet sources); Def. Br. at n.1, 3-6, 8-10, 13, 15, 17 (citing experts 

in “Background” section); Def. Br. at n.24, 27-33, 35, 46, 49 (citing experts in section addressing “[d]evelopments 

since Continental Can and Owens-Illinois”). 

27 Report of Rob Wallace, Appendix D; Wallace Dep. at 35; See Akiro v. House of Cheatham, Inc., No. 12 Civ. 

5775, 2013 U.S. Dist. LEXIS 72233, at *12 (S.D.N.Y May 17, 2013) (noting Wallace’s report “simply dresses up 

[defendant’s] view of the underlying factual evidence in expert garb.”); Patsy’s Italian Rest., Inc., v. Banas, 531 F. 

Supp. 2d 483 (E.D.N.Y. 2008) (excluding Wallace’s testimony). 

28 Sanghvi Report ¶ 18. 

29 Sanghvi Report § V.B. Heading. 

30 Sanghvi Report § V.C. Heading. 

31 Sanghvi Report ¶ 181. 
Such claims fly in the face of Defendants' own business documents, the testimony of 

Defendants' customers, and the explicit testimony of the Three Majors' own executives. For 

example: 

• Many Brewers and Distillers have testified that they use bidding among glass 

suppliers to get better prices or other benefits. 

32 

• Saint-Gobain's Vice President of Sales for Beer testified that corno~~t1 

for 

• Saint-Gobain's General Manager and Senior Vice President of the Beer Sector of 

testified that glass suppliers resulted in lower prices for 

• 

• Ardagh's Vice President of Sales identified Saint-Gobain and 0-1 as the two 

companies Ardagh most frequently bids against in requests for pricing for both beer 

and spirits bottles?6 

• 

The conclusions of Defendants' economist can thus be dismissed on their face because 

they are incompatible with the basic facts of the industry . It defies common sense to assert that 

the prices charged by glass suppliers are not constr·ained by direct, head-to-head competition 

with other glass suppliers, yet~ constr·ained by the more remote possibility of customers 

33 PX 6010 (Shanteau IH Tr. at 14-15, 30-32, 57, 62,73-74, 184-85, 206-209). 

34 PX 6011 (Ganter Tr. at 44-46, 86, 137-38). 

35 PX 2078-001, -027, -042, -050. 

36 Love Dep. at 74. 

37 

8 
switching to plastic or metal containers.38 The details of Defendants' economic analysis only 

:ftuther lmderscore a ftmdamental detachment from the business reality. Defendants' economist 

spends pages of his rep01t developing his own abstmse mathematical f01mula to model glass 

container suppliers' pricing decisions,39 but there is no evidence that this f01mula, or the 

assumptions underlying it, has any connection to how Defendants' executives actually make 

pricing decisions, as revealed by their own testimony.4

° For all of these reasons, the Comt 

should simply disregard the analysis of Defendants' hired economist.41 

C. The Documentary And Testimonial Record Is The Best Evidence Of The 

Facts. 

While emphasizing their litigation consultants' dubious pronouncements, Defendants ask 

this Comt to disregard their own pre-litigation business documents, arguing inconectly that the 

D.C. Circuit has somehow minimized the evidentimy importance of such documents.42 To the 

contrmy, " [w]hen detetmining the relevant product market," comts in this Circuit "often pay 

close attention to the defendants' ordinmy comse of business documents," United States v. H&R 

38 See PX 0014 (Expert Rebuttal Repott of Dr. Frederick Wanen-Boulton) ~~ 16-26. 

39 Sanghvi Report at 53-56. 

40 See Wall Dep. 91-94. 

41 A complete, point-by-point refutation of all the claims of Defendants' economist can be found in the rebuttal 

report of the Commission's economic expert. See generally PX 0014 (Expert Rebuttal Repott of Dr. Frederick 

Wan-en-Boulton). 

42 Defendants observe that the D.C. Circuit noted that "industty recognition" is often less significant in detennining 

whether two products are in the same relevant product market than more direct economic indicia, such as "unique 

production facilities," "distinct prices," and " sensitivity to price changes." Rothe1y Storage & Van Co. v. Atlas Van 

Lines, Inc., 792 F.2d 210, 219 n.4 (D.C. Cir. 1986). But Defendants incotTectly conflate " industty recognition," one 

of the substantive indicia of a relevant product market, with the wholly separate evidentimy question of whether 

Defendants' business documents consitute compelling evidence of the market reality. Def. Br. at 24. Courts in this 

Circuit w1deniably put great evidentiaty weight on business documents. See, e.g. , United States v. H&R Block, Inc., 

833 F. Supp. 2d 36, 52 (D.D.C. 2011); FTCv. Staples, Inc. , 970 F. Supp. 1066, 1079 (D.D.C. 1997). Here, those 

documents provide abundant evidence of both "industty recognition" as well as the more direct economic indicia 

supporting the Cotmnission's case. For example, Defendants, along with other glass container manufacturers, 

belong to a tt·ade association called the "Glass Packaging Institute." This trade association is one example of 

"industry recognition" the conclusion that containers are not in the same relevant market as 

· or metal "v'""J"'"'·'" 

9 
10 

Block, Inc., 833 F. Supp. 2d 36, 52 (D.D.C. 2011), because determination of the relevant market 

“is a matter of business reality—a matter of how the market is perceived by those who strive for 

profit in it.” FTC v. Staples, Inc., 970 F. Supp. 1066, 1079 (D.D.C. 1997) (quoting FTC v. CocaCola Co., 641 F. Supp. 1128, 1132 (D.D.C. 1986)). 

Defendants also deride the testimony of their own customers, which is hardly surprising 

since the customer testimony consistently refutes Defendants’ arguments.43 Courts in merger 

cases often consider customer testimony. See, e.g., FTC v. CCC Holdings, Inc., 605 F. Supp. 2d 

26, 41 (D.D.C. 2009) (citing customer testimony about whether products are “adequate 

substitute[s]”). Here, the Brewers’ and Distillers’ testimony is especially credible because (1) it 

is consistent across the large number of Brewers and Distillers who testified in this case; (2) it is 

consistent with the facts revealed in other sources, such as Defendants’ documents; and (3) it 

does not consist of mere “subjective” opinions. Rather, Brewers and Distillers analyze their 

consumers carefully and know that there is strong demand for their products in glass bottles. 

 

 

 

43 Def. Br. at 22-23. 

44 

45 PX 4106-015. 
11 

 

 

 None of Defendants’ paid litigation consultants have conducted any remotely 

comparable quantitative analyses of how container preferences influence consumer purchase 

behavior for beer and spirits. The Court should credit the testimony of Brewers and Distillers 

because it is well founded, reliable, and consistent with other record facts, which all point to one 

unassailable conclusion: Brewers and Distillers will continue to buy glass bottles, even if prices 

increase five to ten percent, because their consumers demand them. 

D. Defendants’ Market Trend Arguments Are Misleading, Irrelevant, Or Both. 

After stripping away the flawed pronouncements of Defendants’ paid consultants, most 

of what remains of Defendants’ factual arguments relies on misleading or irrelevant inferences 

drawn from supposed market trends. These arguments fail. 

Demand for beer and spirits in glass bottles will continue to exist, and, indeed, 

 Further, 

Defendants’ suggestion that cans are “displacing” glass beer bottles is bogus.50 As noted above, 

the proportion of beer packaged in cans versus glass bottles is almost exactly the same today as it 

was thirty years ago, and the ratio has remained relatively stable even as the price of glass bottles 

 

46 PX 4112-006. 

47 PX 4106-015, PX 4112-006 (emphasis added). 

48 PX 4106-040. 

49 PX 1361-0031-32; 

50 Def. Br. at 15. 
12 

has risen approximately 80 percent relative to cans.51 Defendants’ reference to the growth of 

“craft” beer in cans is also a red herring. Craft beer remains overwhelmingly packaged in glass 

bottles; more than 95 percent of all craft beer is sold in glass.52 Moreover, major craft brewers, 

such as , testified that they introduced canned beers to capture 

additional sales volumes, not to replace glass bottles.53 Defendants conveniently neglect to 

mention that, while the number of craft breweries offering canned beer has increased in recent 

years, the total number of craft breweries and their demand for glass bottles has also increased, 

as their own expert admitted.54 Craft beer offerings in both bottles and cans have expanded in 

what one Brewer described as an overall “explosion” in craft beer during the past decade.55 

As for spirits, Defendants’ argument is also based on misleading evidence. Defendants’ 

chart citing only “off-premises” spirits consumption (i.e., outside of bars and restaurants) skews 

the data because it ignores the fact that on-premises spirits consumption accounts for half of all 

spirits sales revenues and the fact that 1-liter glass spirits bottles are the “industry standard” for 

bars and restaurants.56 Similarly, Defendants’ choice to cite a single effort by 

 

51 PX 4067 (Beer Institute Brewers’ Almanac 2012, “Package Mix Chart”). PX 0006 (Expert Report of Dr. 

Frederick Warren-Boulton) ¶ 51. In a footnote, Defendants inexplicably suggest that looking at the ratio of bottled 

to canned beer over the past thirty years is somehow “misleading because it does not account for the rise of craft and 

premium beer,” a development that certainly occurred within that period. Def. Br. n.11. In fact, it is Defendants’ 

parsing of the data, which looks only at changes in this ratio from 2004 to 2012, that is misleading because the 

central economic event during this period was the worldwide recession that began in 2008. The recession led to an 

increase in consumption of cans relative to glass bottles as consumers reduced their outings to bars and restaurants 

(more likely to serve glass bottles) and traded down to cheaper brands (more likely to be in cans). PX 1378-016; 

 

52 PX 8006-039 (IRI market research data showing that cans accounted for only 3.1% dollar share of craft beer in 

2012); PX 2094-011 

53

54 Kallenberger Dep. at 108. 

55

56 PX 1634-047; 
Distiller- relating to plastic ignores the further advanced and more valuable -

effmt by the same Distiller to improve glass bottle teclmology. 57 

Defendants' long-tetm trend arguments are ultimately beside the point when it comes to 

defining the relevant antitmst product markets. The evidence here shows that glass container 

manufacturers compete directly on price with each other, and not with plastic or metal container 

suppliers. The fact that Brewers and Distillers continue to spend billions of dollars purchasing 

large volumes of glass containers, even though plastic and metal containers are generally cheaper 

and have been available for decades is strong evidence that these are different relevant product 

markets. The testimony of Defendants' own executives confnms that customers who convett a 

product from glass to another material generally do not offer the glass fnms a chance to compete 

against the new material, but rather present their decision as 

III. DEFENDANTS MISINTERPRET AND MISAPPLY CASE LAW. 

Defendants argue that tluee decades-old merger mlings "foreclose the FTC's market 

defmitions here."59 Defendants are wrong. The fact-bound assessments of relevant markets in 

those historical cases - United States v. Continental Can Co., 378 U.S. 441 (1964); FTC v. 

Owens-Illinois, Inc. , 681 F. Supp. 27 (D.D.C. 1988) ("Owens-Illinois P.I. Opinion"), vacated as 

moot, 850 F.2d 694 (D.C. Cir. 1988); and In re Owens-Illinois, Inc., 115 F.T.C. 179 (1992) 

("Owens-Illinois FTC Opinion") - cannot possibly "foreclose" this Court's decisions on the 

present record, nor can those cases be constmed as "controlling" as to the relevant markets here. 

57----; PX 4828; PX 4405. The notion that the cost savings to be realized by plastic "are 

sit ef. Br. at 19, belies the reality that the cost savings of packaging spirits in plastic are 

often too good to be tiue, considering how plastic packaging may · · a brand and its sales. For that reason, 

SlUllllled and <mnPt·-t)rPtninm 

58 PX 6004 (Fredlake IH Tr. at 258); see also Grewe Dep. at 107. 

59 Def. Br. at 8. 

13 
14 

First, the market definition determinations in those cases – as in every antitrust case – 

were “factual findings” based on “supporting record evidence.” United States v. Microsoft Corp., 

253 F.3d 34, 52 (D.C. Cir. 2001) (en banc, per curiam); accord FTC v. Lundbeck, Inc., 650 F.3d 

1236, 1239 (8th Cir. 2011) (“The relevant product market is a question of fact,” and decisions on 

such questions must be “supported by substantial evidence.”) (citations omitted). Indeed, the 

very decisions that Defendants invoke make it unequivocally clear that “the pivotal question of 

relevant market can be determined only after close scrutiny of the facts in each case.” OwensIllinois P.I. Opinion, 681 F. Supp. at 35; see also Continental Can, 378 U.S. at 457 (“relevant 

product market” was determined “[b]ased on the evidence . . . revealed by this record”). The 

evidentiary records in the Continental Can and Owens-Illinois cases are not before this Court, 

and the competitive dynamics of certain markets in the early 1960s and late 1980s are irrelevant 

to the issues this Court is called upon to decide. Product market definition is a question of fact 

that this Court can decide only based on the evidentiary record before it. 

Second, apart from improperly attempting to import facts from the cases they cite, 

Defendants misconstrue those cases legally. Even if market conditions had remained frozen in 

amber for the past 50 years, Continental Can still would not dictate this Court’s findings. 

Continental Can’s general legal standards remain valid, but the economic theories and 

methodologies used to apply those standards to the facts have changed dramatically. The D.C. 

Circuit has made clear that courts’ understanding of the types of market arrangements that are 

“likely to harm consumers” will necessarily change “as economic learning and market 

experience evolve.” Polygram Holding, Inc. v. FTC, 416 F.3d 29, 36-37 (D.C. Cir. 2005). Thus, 

lower courts, of course, are bound by the legal principles articulated in earlier Supreme Court 

decisions, such as the principle that, in assessing product market definition, “[w]hat is called for 
15 

is an appraisal of the ‘cross-elasticity’ of demand in the trade.” E.I. du Pont & de Nemours & 

Co., 351 U.S. 377, 394 (1956) (“Cellophane”).60 But courts applying those principles today 

must do so in light of modern economic analysis.61 The “application of the antitrust laws to 

mergers during the past half-century has been anything but static.” United States v. Oracle 

Corp., 331 F. Supp. 2d 1098, 1111 (N.D. Cal. 2004). 

Here, modern economic analysis forecloses Defendants’ wooden reliance on the product 

market definition in Continental Can. In that case, while “[g]lass and metal containers were 

recognized to be two separate lines of commerce,” 378 U.S. at 456, each of which could 

“constitute [a] product market[] for antitrust purposes,” id. at 458 (citing Brown Shoe, 370 U.S. 

at 325), the Court concluded that they should nonetheless be combined into a single, broader 

“relevant product market.” Id. at 457. By contrast, today, it is nearly universally recognized—

including by courts in this Circuit—that “the relevant product market should ordinarily be 

defined as the smallest product market that will satisfy the hypothetical monopolist test.” H&R 

Block, Inc., 833 F. Supp. 2d at 59; accord FTC v. Whole Foods Market, Inc., 548 F.3d 1028, 

1037-38 (D.C. Cir. 2008) (Brown, J.); FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109, 120 (D.D.C. 

2004); Staples, 970 F. Supp. at 1074-75; FTC v. Swedish Match, 131 F. Supp. 2d 151, 159 

(D.D.C. 2000); Merger Guidelines, §§ 4, 4.1.1. The Owens-Illinois FTC Opinion includes a 

well-articulated explanation of this “smallest product market” principle. See 115 F.T.C. at 298-

303. Indeed, Defendants fail to acknowledge that the Owens-Illinois FTC Opinion’s application 

 

60 See also Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1961) (product market boundaries defined primarily 

based on “cross-elasticity of demand between the product itself and substitutes for it”); Continental Can, 378 U.S. at 

449 (quoting and relying on the same passages from Cellophane and Brown Shoe); FTC v. Whole Foods Market, 

Inc., 548 F.3d 1028, 1043 (D.C. Cir. 2008) (Tatel, J.) (same); CCC Holdings, 605 F. Supp. 2d at 38 (same); H&R 

Block, 833 F. Supp. 2d at 50-51 (same). 

61 For a comprehensive overview in the substantial evolution of how courts have applied the principles of relevant 

market definition from the 1950s to the 1990s, see Gregory J. Werden, The History of Antitrust Market Delineation, 

76 MARQUETTE L. REV. 123 (1992). Those principles have continued to evolve, as a comparison of the 1992 and 

2010 Horizontal Merger Guidelines illustrates. 
16 

of economic principles to product market definition differs sharply from the economic analysis 

in Continental Can and the Owens-Illinois P.I. Opinion.

62 

Even on its own terms, Continental Can concerned an entirely distinguishable transaction 

– a merger of a metal can producer and a glass container producer. As Continental Can

specifically recognized, the fact “[t]hat there may be a broader product market made up of metal, 

glass and other competing containers does not necessarily negative the existence of submarkets 

of . . . glass, plastic or cans [that] . . . in themselves, constitute product markets for antitrust 

purposes.” 378 U.S. at 457-58. Thus, Continental Can itself suggests that the Court could have 

defined a glass-only relevant market if the case had involved a merger of two glass suppliers. In 

the Owens-Illinois FTC Opinion, the Commission emphasized this very point in distinguishing 

Continental Can – and distinguishing by extension the Owens-Illinois P.I. Opinion, which did 

not recognize this distinction.63 115 F.T.C. at 302-303. Ironically, then, it is Defendants who 

ignore the teaching of Continental Can when they argue for mechanically applying the same 

broad product market that the Court used to assess the “long-run” “inter-industry” competition at 

issue there to evaluate this merger of two close competitors. 

Contrary to Defendants’ arguments, nothing in the Owens-Illinois FTC Opinion undermines 

the Commission’s arguments here for defining product markets consisting of glass containers sold to 

 

62 Instead of applying the smallest product market principle, the Owens-Illinois P.I. Opinion mistakenly relied on 

Cellophane for the contrary proposition that, in analyzing product market definition, “competitive effects within 

smaller parts of the market are not relevant.” 681 F. Supp. at 35 (citing Cellophane, 351 U.S. at 395). 

63As noted in the Commission’s opening brief (and in the Owens-Illinois FTC Opinion), Judges Posner and 

Easterbrook have also pointed out that Continental Can strongly suggests that the Court there would have 

recognized a glass-only relevant market if the case had involved a merger of two glass suppliers. FTC Br. at 33. 

Tellingly, Defendants ignore the substance of Posner and Easterbrook’s analysis, and instead simply attack the 

notion of citing to scholarly opinion. Def. Br. at 10. Defendants’ citations, id.at 10 n.20, also misleadingly intimate 

that Posner and Easterbrook have changed their minds by citing to Continental Can for other points of law. For 

example, Defendants cite Menasha Corp. v. News Am. Mktg., In-Store, Inc., 354 F.3d 661, 664 (7th Cir. 2004) 

(Easterbrook, J.), which cites Continental Can in rejecting an argument that physical distinctions between products 

necessitate a finding of separate relevant product markets. We take no issue with that principle of law. Menasha

also states that “if the price of one [product] varies while others stay the same, then they probably are in different 

markets,” id., an important point that undermines Defendants’ arguments here. 
17 

Brewers and Distillers, respectively. For instance, the Court can ignore Defendants’ baseless 

contention that the Owens-Illinois FTC Opinion applied a “five percent threshold” under which a 

relevant market for glass containers cannot exist for any “end-use where nonglass usage was at least 

5% and at least one significant commercial customer used nonglass packaging.”64 This test, 

contrived by Defendants, appears nowhere in the Commission’s opinion, and is untenable as a matter 

of antitrust law.65 The relevant test is whether a hypothetical monopolist of glass containers sold to 

Brewers and Distillers could profitably impose a “small but significant and non-transitory increase in 

price,” Merger Guidelines § 4.1.1, with a five percent price increase typically used as a threshold. 

Id. § 4.1.2. This test supports the Commission’s relevant product markets here. 

Defendants are wrong in suggesting that the Commission is “now revers[ing] course” in any 

way.66 The Commission’s position here is substantially consistent with the legal principles and 

analytical approach it applied in the Owens-Illinois FTC Opinion, but the facts are quite different. 

The relevant market for glass beer bottles – the largest market at issue here – was not at issue in 

the Owens-Illinois case.67 As for spirits, in 1992, the Commission made an educated guess, based 

on the evidence before it at that time, that emerging competition from plastic spirits containers would 

likely constrain prices for glass spirits bottles.68 115 F.T.C. at 307. Today, over twenty years later,

 

64 Def. Br. at 12, 19. 

65 Thus, it was irrelevant to the Court’s ruling in H&R Block whether more or less than five percent of taxpayers 

used a non-digital method of preparing a tax return, and it was irrelevant in Staples whether more or less than five 

percent of office supplies were sold outside of office supply superstores. It is equally irrelevant here whether more 

or less than five percent of beer is packaged in cans. 

66 Def. Br. at 12. 

67 Thus, no weight attaches to Defendants’ citation to dicta in the Owens-Illinois P.I. Opinion about demand 

elasticity in the market for beer containers, given the clear lack of evidence on that issue before the court. Def. Br. 

at 11-12. Even if there had been findings of fact related to beer containers in Owens-Illinois, only the factual record 

before the Court today is relevant here. 

68 In the Owens-Illinois FTC Opinion, the Commission found evidence that distillers were substituting plastic for 

glass in very small (50 ml) and very large (1.75 liter) liquor bottles—sizes that accounted for just 9% and 14%, 

respectively, of all distilled spirits containers. 115 F.T.C. at 220-21, 306-307. As Defendants acknowledge, 

however, “the popular mid-sized containers were not converting yet.” Def. Br. 13. Although the vast majority of 

spirits containers were in that mid-size range, the Commission marshaled no evidence beyond isolated anecdotes 

about producers who were “using or actively evaluating alternatives to glass for the mid-range sizes.” 115 F.T.C. at 
18 

the record evidence shows that – contrary to the Commission’s prediction based on the 1992 record –

Distillers still predominantly use glass for their most popular, mid-sized spirits bottles.69 Economic 

analysis today shows that Distillers are unlikely to switch away from glass to other packaging 

materials sufficiently to defeat a SSNIP.70 Indeed, today’s facts reveal ample evidence that the 

pricing of glass beer and spirits bottles is not closely constrained by competition from plastic or 

metal. Case law since Owens-Illinois has emphasized the importance of such evidence. See, e.g.,

Swedish Match, 131 F. Supp. 2d at 158-59 (“[F]inding two products to be functionally 

interchangeable . . . does not end the analysis”; rather, one must proceed “to an analysis of crosselasticity and price constraints in defining the relevant market”); see also H&R Block, 833 F. Supp. 

2d at 55; Staples, 970 F. Supp. at 1080. Here, the record evidence bearing directly on the crosselasticity of demand between container types shows that the manufacture and sale of glass bottles 

to Brewers and Distillers are relevant product markets for assessing the proposed acquisition. 

Ultimately, the Owens-Illinois Commission declined to enjoin the merger in that case 

because it found competitive responses from the remaining post-merger glass container 

suppliers, including five suppliers with multiple plants, would make anticompetitive effects 

unlikely in the relevant product markets. 115 F.T.C. at 323-26. That rationale is irrelevant to 

this proposed merger to duopoly. In any event, at this preliminary stage, there are clearly 

“serious, substantial” questions that are “fair ground for thorough investigation, study, 

deliberation and determination by the FTC in the first instance and ultimately by the Court of 

Appeals.” Heinz, 246 F.3d 714-15. 

 307. The Commission cited no quantitative evidence, and made no findings of fact, regarding the magnitude of 

Distillers’ cross-elasticity of demand for plastic versus glass containers. 

69 PX 2237-010. 

70 See, e.g., PX 0006 (Warren-Boulton Expert Report) ¶¶ 64-65. 
19 

IV. THE RELEVANT GEOGRAPHIC MARKET IS THE UNITED STATES. 

Defendants do not contest that the relevant geographic market for Distillers is the United 

States,71 and Defendants also concede that the relevant geographic market is no broader than the 

United States for Brewers.72 Thus, the only remaining question is whether the Commission has 

met its burden in identifying the United States as an appropriate geographic market for 

examining the transaction’s effect on Brewers. It has. 

“[A]t this preliminary stage” prior to the merits trial, when the FTC is merely seeking 

interim relief under Section 13(b), the FTC does not “necessarily need to settle on a market 

definition” at all. Whole Foods, 548 F.3d at 1036 (Brown, J.) (referring to both product market 

and geographic market); see also CCC Holdings, 605 F. Supp. 2d at 43. In merger cases, the 

Supreme Court has defined the relevant geographic market as “the area in which the goods or 

services at issue are marketed to a significant degree by the acquired firm.” United States v. 

Marine Bancorp., 418 U.S. 602, 620-21 (1974). A relevant geographic market need only be 

“sufficiently defined so that the Court understands in which part of the country competition is 

threatened.” FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 49 (D.D.C. 1998). It “need not be 

identified with ‘scientific precision,’ or ‘by metes and bounds as a surveyor would lay off a plot 

of ground.’” Id. (quoting United States v. Conn. Nat’l Bank, 418 U.S. 656, 669 (1974) and 

United States v. Pabst Brewing Co., 384 U.S. 546, 549 (1966)). 

The FTC has sufficiently shown that the relevant geographic market is the United States. 

Moreover, Defendants have not identified any plausible alternative geographic markets for 

Brewers, other than vaguely asserting that the geographic markets are “local or perhaps regional” 

 

71 Def Br. at 25-30 (not contesting the FTC’s geographic market for Distillers); see also Sanghvi Dep. at 194-95. 

72 Answer and Defenses of Defendant Ardagh Group S.A., ECF No. 39, ¶ 38. 
without specifying how they would define them. 73 Although the geographic footprint of each 

Brewer may vary, most Brewers have similar competitive altematives from which to choose 

because Ardagh, Saint-Gobain, and 0-1 have plants located throughout the U.S. that are capable 

of supplying Brewers. 

The map below illustrates the area where Ardagh and Saint-Gobain compete for the sale 

of glass bottles to Brewers. This map was created by identifying each Ardagh or Saint-Gobain 

plant that produced beer bottles in 2012, and then drawing a circle around each plant that 

captures I percent of that plant's beer bottle shipments. The area shaded in red on the map is 

the geographic area where both an Ardagh and Saint-Gobain circle overlap. As is obvious from 

the map, Ardagh and Saint-Gobain both market their beer bottles throughout the United States.

74 

Beer - Percentile Distance Overlaps Between Ardagh and Verallia- 2012 

.,Re.,. ... O~t.UI 

OtrlfC 

.. 

... 

l !1. I T I! I> " I 

-.. o--.- ......,. __ ~.....,........u 

A ....,..,._._.-.,.,__ 

A O-le_ ._,._.,_.. 

73 Def. Br. at 27. 

74 PX 0014 (Expert Rebuttal Repott of Dr. Frederick Wan-en-Boulton)~ 29. 

20 
21 

Slicing up the geographic market into “local or perhaps regional” markets would be 

inaccurate because beer bottles are shipped much farther than the Defendants would like this 

Court to believe. In 2012, approximately percent of the beer bottles produced by Ardagh, 

Saint-Gobain, and O-I were shipped over 500 miles.75 Thus, any attempt to define narrow, 

localized markets would be arbitrary and in direct conflict with numerous actual examples of 

Brewers receiving glass bottles from “outside” their geographic market. It would also result in 

inaccurate market share calculations. See Cardinal Health, 12 F. Supp. 2d at 50-51 (finding a 

national market and rejecting various “regional” markets in part because of evidence of 

customers purchasing from locations beyond the claimed boundaries of the regional markets). 

Unsurprisingly, in their business documents, Defendants routinely calculate market shares or 

analyze competition for the United States, rather than “local or perhaps regional” markets.76 

Thus, Defendants’ flawed geographic market arguments should be rejected. At best, 

these arguments only raise more questions that are “so serious, substantial, difficult and doubtful 

as to make them fair ground for thorough investigation, study, deliberation and determination by 

the FTC in the first instance and ultimately by the Court of Appeals.” Heinz, 246 F.3d at 714-15. 

V. THE TRANSACTION WILL LIKELY LEAD TO REDUCED 

COMPETITION AND HIGHER PRICES. 

The proposed acquisition will increase the HHIs in the relevant market for glass beer 

bottles by 782 to 3,657 and for glass spirits bottles by 1,072 to 3,138.77 These increases easily 

establish the presumption that the acquisition is unlawful. See Heinz, 246 F.3d at 716. The 

heavy burden of rebutting that presumption falls to Defendants, id. at 715, and, in this Section 

13(b) action, the Court must issue the preliminary injunction unless the rebuttal arguments 

 

75 PX 0014 (Expert Rebuttal Report of Dr. Frederick Warren-Boulton) ¶ 28. 

76 PX 1264-022; PX 2078-012, -013; PX 1033-009; PX 1021; PX 1535; PX 2000-292. 

77 See FTC Br., Argument, Section II.C.1. 
22 

extinguish all the “serious, substantial” questions of legality raised by this acquisition. Id. at 

725. 

A. There Are Extraordinarily High Barriers To Entry and Expansion. 

Defendants do not contest the fact that there are extraordinarily high barriers to entry and 

expansion in this industry.78 Thus, the Court should treat high entry barriers as conceded. 

B. The Proposed Acquisition Will Eliminate Head-to-Head Competition 

Between Ardagh and Saint-Gobain. 

Unable to deny that Ardagh and Saint-Gobain directly compete with each other, 

Defendants claim instead that they do not “meaningfully” compete or that their competition is 

“limited.”79 These disavowals are incompatible with how Defendants behave and analyze 

competition in the ordinary course of business,80 and rest on the contrived analysis of 

Defendants’ economist.81 Defendants ask the Court simply to ignore the head-to-head 

competition between them. For example, in the past year, Defendants competed for a major 

contract to supply 

 Yet Defendants dismiss this competition in a footnote as not rising to some undefined 

threshold “level” worthy of consideration, even though their own economist described the 

competition between Ardagh and Saint-Gobain for the contract as “vigorous.”83 In Heinz, the 

D.C. Circuit dispatched a similar argument in which two competitors denied competing, noting 

that there was “record evidence that the two [firms] do in fact price against each other” and that 

 

78 See generally Def. Br. 

79 Def. Br. at 31-33. 

80 See supra, Section II.B; FTC Br., Statement of Facts, Section III; FTC Br., Argument, Section II.C.3. 

81 See Def. Br. at 31-33 n.75-78, 80-82 (citing Sanghvi Report). 

82

83 See Def. Br. at 33 n.80; Sanghvi Report ¶ 225. 
23 

their competition had resulted in lower prices. 246 F.3d at 718. The facts are similar here, and 

the outcome should be too. 

C. The Relevant Markets Are Ripe For Coordination. 

Defendants also assert that coordinated anticompetitive effects would be unlikely because 

of market characteristics like the presence of certain large buyers, the existence of long-term 

contracts, and other supposed barriers to coordination. The potential barriers to coordination 

Defendants identify lose their force where, as here, the relevant markets will be concentrated 

down to a duopoly with each competitor facing only one rival firm. In any event, none of these 

arguments eliminate all the “serious, substantial” questions of legality. 

In CCC Holdings, the Court granted a preliminary injunction despite nearly identical 

arguments about buyer power and long-term contracts. 605 F. Supp. 2d at 64. In that case, like 

here, “Defendants ignore[d] a number of other factors present in these markets that would tend to 

confirm the HHI’s predictions regarding the likelihood of coordination,” id., such as the many 

factors conducive to coordination discussed in our opening brief. See FTC Br. at 36-39. Indeed, 

the Commission’s case here is even stronger than in CCC Holdings, since Defendants here do 

not even contest the industry’s extraordinarily high barriers to entry. Cf. CCC Holdings, 605 F. 

Supp. 2d at 47-60 (discussing entry). 

Defendants’ arguments about the size of their customers are overstated. 

 can manufacturing options, cited by Defendants, 

are irrelevant by definition, since cans are outside the relevant market. 

 

84 
24 

 

Furthermore, the size of large customers does nothing to protect the interests of smaller 

customers who may also be harmed by the post-acquisition duopoly. See Merger Guidelines § 8. 

 Defendants’ other structural arguments can be dismissed too.86 With only two Majors 

remaining after the transaction, the firms will be able to reach an agreement and to detect and 

punish cheating almost by default. If one duopolist loses a customer, it immediately knows (1) 

to whom it lost the customer and (2) that the lone other firm offered a better deal.87 The Court 

can simply ignore Defendants’ references to irrelevant facts, such as Anchor’s bankruptcies, 

which occurred prior to 2006, and O-I’s stock price, which has roughly doubled in the past two 

years. 

D. Defendants’ Speculative Efficiencies Claims Fail. 

Defendants make no effort to explain how their claimed efficiencies are (1) mergerspecific and (2) verifiable, as required by case law and the Merger Guidelines. See H&R Block, 

833 F. Supp. 2d at 89; Heinz, 246 F.3d 721-22; Merger Guidelines § 10. Instead, Defendants 

invent their own standard for evaluating efficiencies claims (without citing any supportive case 

law), and then proceed to argue that they have satisfied this novel standard.88 Such arguments 

are frivolous and require no response beyond the points in our opening brief.89 

 

85 See FTC Br. at 43; Def. Br. at 35 n. 90. 

86 See PX 0014 (Rebuttal Expert Report of Dr. Frederick Warren-Boulton) ¶¶ 32-36. 

87 See PX 0014 (Rebuttal Expert Report of Dr. Frederick Warren-Boulton) ¶ 35. 

88 Def. Br. at 41-42. Defendants incorrectly claim their invented standard is “consistent” with the Merger 

Guidelines. See id. n.107. “If a company could achieve certain cost savings without any merger at all, then those 

stand-alone cost savings cannot be credited as merger-specific efficiencies. The defendants must show that their 

‘efficiencies . . . cannot be achieved by either company alone because, if they can, the merger’s asserted benefits can 

be achieved without the concomitant loss of a competitor.’” H&R Block, 833 F. Supp. 2d at 90 (quoting Heinz, 246 

F.3d at 722); accord Merger Guidelines § 10 n.13 (“The Agencies will not deem efficiencies to be merger-specific if 

they could be attained by practical alternatives that mitigate competitive concerns . . . .”). 

89 Defendants also accuse the FTC of employing “tortured” new “definitions” for the legal requirements for 

efficiencies claims – definitions which Defendants themselves seem to have invented since they appear nowhere in 

the FTC’s brief. See Def. Br. at 41 (quoting “definitions” that the FTC purportedly “employs”).
25 

VI. THE EQUITIES STRONGLY FAVOR PRELIMINARY RELIEF. 

 Defendants do not identify any compelling public equities that favor allowing their 

acquisition to close before trial. Their flawed equities arguments ignore the public interest in 

favor of private ones and draw on merits arguments that have no place in the equities analysis. 

First, despite Defendants’ unequivocal representation to the FTC administrative law judge that 

they would litigate the merits trial, Defendants now suggest that preserving the status quo 

through the merits trial “may” scuttle their deal.90 Yet Defendants nowhere explain why they 

cannot extend the timing of their agreement. Indeed, their executives’ testimony suggests they 

would have a continuing interest in the deal.91 Ultimately, Defendants’ shifting positions matter 

little because their private interest in closing their deal cannot outweigh the public interest of 

preserving competition. See Heinz, 246 F.3d at 727 n.25 (“Private equities do not outweigh 

effective enforcement of the antitrust laws.”) (citation omitted). Second, Ardagh’s plans to 

eliminate Saint-Gobain as a competitor and merge Saint-Gobain’s assets with its own strongly 

favor interim relief. See Swedish Match, 131 F. Supp. 2d at 173 (absent an injunction, it will be 

“impossible to accomplish full relief . . . the eggs will be irreparably scrambled.”). Defendants’ 

remaining “equities” (i.e., that the deal poses little risk to competition and will generate 

efficiencies) are no more than restated merits arguments which, as explained above, fail. 

CONCLUSION 

 For the reasons explained above and in Plaintiff’s opening brief, the Federal Trade 

Commission respectfully requests that this Court grant its motion for a preliminary injunction 

and prevent Ardagh from closing its acquisition of Saint-Gobain pending a full administrative 

trial to determine the legality of the acquisition under the antitrust laws. 

 

90 Def. Br. at 44. 

91 Coulson Dep. at 64-65 (“Q. If the deal is still pending mid-January, does Ardagh intend to continue to pursue the 

acquisition? A.Yes.”); Wall Dep. at 178-79; Grewe Dep. at 29. 
 October 23, 2013 

 Respectfully submitted, 

 Of counsel: 

 

DEBORAH L. FEINSTEIN (D.C. Bar 412109) 

Director 

NORMAN A. ARMSTRONG, JR. (D.C. Bar 459621) 

Deputy Director 

Bureau of Competition 

Federal Trade Commission 

/s/ Edward D. Hassi 

EDWARD D. HASSI 

Chief Litigation Counsel 

Federal Trade Commission 

Bureau of Competition 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-2884 

Email: ehassi@ftc.gov 

Attorney for Plaintiff

 

JONATHAN NUECHTERLEIN (D.C. Bar 442470) 

General Counsel 

Federal Trade Commission 

CATHARINE M. MOSCATELLI 

Assistant Director (D.C. Bar 418510) 

BRENDAN J. MCNAMARA 

Deputy Assistant Director 

ANGELIKE A. MINA 

SEAN D. HUGHTO (D.C. Bar 421224) 

STEVEN L. WILENSKY (D.C. Bar 430398) 

MONICA M. CASTILLO 

ANGEL PRADO 

JAMES ABELL (D.C. Bar 990773) 

MEREDITH ROBINSON (D.C. Bar 498245) 

JOSHUA GOODMAN 

MICHAEL FRANCHAK 

STEVEN DAHM 

DANIELLE SIMS (D.C. Bar 982506) 

KRISTIAN ROGERS 

AMANDA HAMILTON (D.C. Bar 499646) 

SEBASTIAN LORIGO 

VICTORIA LIPPINCOTT (D.C. Bar 473839) 

ERIC SPRAGUE 

MICHAEL LOVINGER (D.C. Bar 990801) 

JONATHAN MINCER 

Attorneys 

 

Federal Trade Commission 

Bureau of Competition 

Mergers II Division