ORIG;~rAL PUBLIC

UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMSSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of

Ardagh Group S.A., a public limited

liabilty company, and

Docket No. 9356

Saint-Gobain Containers, Inc., a

corporation, and

Compagnie de Saint-Gobain, a corporation.

COMPLAINT COUNSEL'S OPPOSITION TO RESPONDENTS' MOTION FOR

IN CAMERA TREATMENT OF PROPOSED TRIAL EXHIBITS AND REQUEST FOR

LEAVE TO FILE ITS PUBLIC VERSION OF ITS PRE-TRIAL BRIEF TO FIVE DAYS

AFTER THIS COURT RULES ON ITS PENDING IN CAMERA MOTIONS

Respondents moved for in camera treatment of more than 500 proposed trial exhibits and

related testimony, claiming that pubic disclosure would result in serious competitive injury. The

scope of Respondents' motion far exceeds the protections contemplated by Rule 3.45 of the

Federal Trade Commission's Rules of Practice. The burden of showing good cause for

withholding documents from the public record rests with the part requesting that documents be

placed in camera. HP. Hood & Sons, Inc., 58 FTC 1184, 1188 (1961). Respondents have failed

to meet their burden of demonstrating a "clearly defined, serious injury," as contemplated by

Rule 3 .45(b), and their motion should be denied. i In addition, Complaint Counsel respectfully

) Respondents' indicate that their motion is unopposed, which is misleading and incorrect. Complaint Counsel

agreed to not oppose the motion provided that the Respondents' requestes were reasonable and within the scope of

FTC Rule 3.45(b). However, for the reasons stated in this motion, Respondents' requests far exceed the protections

contemplated by Rule 3.45, and, therefore, Complaint Counsel opposes the motion.

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requests leave to file its public version of its Pre-Trial Brief, to five days after this Court rules on

the pending in camera motions in this matter.

ARGUMENT

Rule 3,45(b) of the Commission's Rules of Practice provides that a part may request in

camera treatment for matèrial offered into evidence by submitting a motion to the

Administrative Law Judge. The Rule provides that, "(t) he Administrative Law Judge shall order

that such material. . . be placed in camera only after finding that its public disclosure wil likely

result in a clearly defined, serious injury to the person, partnership, or corporation requesting in

camera treatment." 16 C.F.R. § 3,45(b). Rule 3,45(b) further provides that, "a finding that

public disclosure wil likely result in a clearly definded, serious injury shall be based on the

standard articulated in HP. Hood & Sons, Inc., 58 FTC 1184 (1961)." In HP. Hood, the

Commission recognized a strong presumption in favor of open access to Commission

adjudicative proceedings. HP. Hood, 58 FTC 1184, at 1186 ("The desireability and in fact the

necessity for public hearings is . . . an engrained and accepted part of our judicial system. . . .

However, with respect to (FTC) hearings in particular, there are peculiarly pressing reasons for

holding all aspects of adjudicative hearings open to public gaze. . .. To foreclose (FTC)

hearings and the evidence adduced therein from the scrutiny of . . . interested persons would

serve in a large measure to defeat the very reason for our existence."). Respondents have the

burden of demonstrating that they wil suffer a "clearly defined, serious injury," as a result of

public disclosure. 16 C.F.R. § 3,45(b); HP. Hood, 58 FTC 1184, 1188. Further, Respondents'

motion must be "narrowly tailored. . . for only that information that is suffciently secret and

materiaL." Polypre Intl, Inc., 2009 FTC LEXIS 256, at *2.

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I. Respondents Have Not Met Their Burden Of Showing A Clearly Defined,

Serious Injury.

Respondents seek in camera treatment for 548 of the approximately 1,500 proposed trial

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exhibits submitted by the parties for use at the hearing. Respondents thus seek protection for

approximately one-third of the total exhibits that the parties propose to use at the hearing. Yet

Respondents do not offer a "clearly defined, serious injury," that would occur as a result of

public disclosure. Rather, Respondents broadly group their documents into three separate

categories, and offer a general, cursory explanation ofthe harm that would result from public

disclosure, using the six-part test set forth in Bristol-Meyers Co., 90 FTC 455 (1977).

Further, for the vast majority of the 548 documents for which Respondents are seeking in

camera treatment, Respondents are seeking in camera treatment for the entire document, without

specifying the pages or portions that contain confidential information. In several instances, these

documents marked for in camera treatment are significantly comprised of non-confidential or

publicly available information. See, infra, Section II.

As this Court has stated, "(a) motion for in camera treatment must be narrowly tailored to

request in camera treatment for only that information which is secret and materiaL." Polypre

Intl, Inc., 2009 FTC LEXIS 256, at *2. Based on the above, Respondents' motion is not

"narrowly tailored," nor does it clearly define serious injury, as required by FTC Rule 3,45(b)

and related caselaw.

II. Respondents' List Of Documents Contains Many Examples Of Documents

And Information That Do Not Warrant In Camera Treatment.

Many of the documents identified in Respondents' motion simply do not warrant in

camera treatment, based on prior precedent of this Court. This Court has stated that, "there is a

strong presumption that in camera treatment wil not be accorded to information that is more

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than thee years old." Promedica Heath System, Inc., 2011 FTC LEXIS 70, at *2 (quoting

Corierence Interpreters, 1996 FTC LEXIS 298, at *15). A non-exhaustinve review of

Respondents' motion reveals the following documents that are more than three years old: PX

1053 (2007), PX 1082 (2009), PX 1087 (2009), PX 1110 (2007), PX 1142 (2008), PX 1182

(2009), PX 1185 (2009), PX 2244 (2009).

In addition, this Court has stated that, "(a )ny material that has previously been made

public wil not be afforded in camera treatment." Prornedica Heath System, Inc., 2011 FTC

LEXIS 70, at *2. As noted above, a non-exhaustive review of Respondents' motion reveals the

following documents that contain publicly available or non-confidential information which

Respondents claim require in camera treatment: PX 1033 (marketing presentation including

Census data and widely-available industr history), PX 1067 (same), PX 1199 (Ardagh

presentation containing numerous slides available online). Other documents, while not public

have been widely shared with potential investors: PX 1610 (Bond Offering Prospectus), PX1393

(same).

This Court has also looked skeptically upon motions for in camera treatment that include

documents that "contain little if any information of current competitive significance."

Promedica Heath System, Inc., 2011 FTC LEXIS 70, at *2. A non-exhaustive review of

Respondents' motion reveals the following documents that lack specific information of current

competitive significance: PX 1131 (2009 email containing no meaningful competitive

information), PX 1121 (2011 Anchor email speculating on customer's interaction with a

competitor), PX 1148 (2010 Anchor document exploring possibility of purchasing a glass

container plant).

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Finally, Respondents' motion seeks in camera treatment for Complaint Counsel's

Effciencies Expert Report of Mr. Gabe Dagen, including his entire deposition transcript.

Respondent offers no explantation for why Mr. Dagen's report and deposition transcript should

be deemed in camera in their entirety.

As this Court has noted, "(t)he burden rests on Respondent to demonstrate that the

evidence sought to be withheld from the public record is suffciently secret and sufficiently

material to its business that disclosure would result in serious competitive injury." Promedica

Heath System, Inc., 2011 FTC LEXIS 70, at *2. Respondents' motion and accompanying

declarations fail to make this showing.

III. Complaint Counsel Respectfully Requests Leave To File The Redacted

Public Version Of Its Pre-Trial Brief.

Complaint Counsel respectfully moves for leave to fie the redacted public version of

Complaint Counsel's Pre-Trial Brief ("Public Brief') to five days after this Court rules on the

pending in camera motions in this matter. In addition to Respondents, several third parties have

also fied motions pursuant to FTC Rule 3.45, seeking in camera treatment of their documents

and deposition and investigational hearing testimony that Complaint Counsel intends to

introduce at triaL. Prior to this Court ruling on those motions, Complaint Counsel fied its PreTrial Brief which includes information that the Respondents and several third parties respectfully

ask this Court to keep in camera. Under the current schedule, Complaint Counsel must fie the

Public Brief by December 19,2013, which is likely before the Court wil have the opportunity to

rule on the in camera motions. In recognizing this Court's strict standard for granting in camera

motions, Complaint Counsel seeks this extension in order to redact its Pre-Trial Brief in a

manner consistent with this Court's ruling. Respondents do not object to this brief extension.

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This Court has the authority to grant this request. FTC Rule 3.45 states that the Public

Brief "shall be fied with the Secretary within 5 days after the fiing ofthe complete version,

unless the Administrative Law Judge. . . directs otherwise. . .." 16 C.F.R. § 3.45(e). Thus, we

respectfully ask the Court to use its discretion under FTC Rule 3.45 to allow Complaint Counsel

to fie its Public Brief five days after this Court has ruled on the in camera motions so that

Complaint Counsel's redactions are consistent with the Court's rulings.

CONCLUSION

Complaint Counsel respectfully requests that the Court deny Respondents' motion for in

camera treatment of proposed trial exhibits, and grant its request for leave to fie its Pre-Trial

Public Brief to five days after this Court rules on Respondents' and third parties' in camera

motions.

Dated: December 13,2013 Respectfully submitted,

sf Edward D. Hassi

EDWAR D. HASSI

Counsel Supporting the Complaint

Bureau of Competition

Federal Trade Commission

Washington, DC 20580

Telephone: (202) 326-2470

Facsimile: (202) 326-3496

Electronic Mail: ehassi@ftc.gov

Counsel Supporting the Complaint

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UNITED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of

Ardagh Group S.A., a public limited

liabilty company, and

Docket No. 9356

Saint-Gobain Containers, Inc., a

corporation, and

Compagnie de Saint-Gobain, a corporation.

(PROPOSED) ORDER

Upon consideration of Complaint Counsel's Opposition to Respondents' Motion for In

Camera Treatment Of Proposed Trial Exhibits, it is hereby ORDERED that Respondents'

Motion be DENIED.

Upon consideration of Complaint Counsel's Request For Leave To File Its Redacted,

Public Version Of Its Pre-Trial Brief To Five Days After The Court Rules On Its Pending In

Camera Motions, its request is hereby GRANTED.

ORDERED:

D. Michael Chappell

Chief Administrative Law Judge

Dated:
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CERTIFICATE OF SERVICE

I hereby certify that on December 13,2013, I fied the foregoing document electronically

using the FTC's E-Filing System, which wil send notification of such fiing to:

Donald S. Clark

Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm. H-l13

Washington, DC 20580

I also certify that I delivered via electronic mail and hand delivery a copy of the

foregoing document to:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm. H-110

Washington, DC 20580

I further certify that I delivered via electronic mail a copy of the foregoing document to:

Alan Goudiss

Dale Collns

Richard Schwed

Lisl Dunlop

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

(202) 848-4906

agoudiss@shearman.com

wcollins@shearman.com

rschwed@shearman.com

ldunlop@shearman.com

Counsel for Respondent Ardagh Group s.A.

Christine Varney

Y onatan Even

Athena Cheng

Cravath, Swaine & Moore LLP

825 Eighth Avenue

New York, NY 10019

(212) 474-1140

cvarney@cravath.com

yeven@cravath.com

acheng@cravath.com
Counsel for Respondent Saint-Gobain Containers, Inc.

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, ,

CERTIFICATE FOR ELECTRONIC FILING

PUBLIC

I certify that the electronic copy sent to the Secretary of the Commission is a true and

correct copy of the paper original and that I possess a paper original of the signed document that

is available for review by the parties and the adjudicator.

December 13,2013 By: sf Edward D. Hassi

Attorney