ORIGINAL PUBLIC 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 


OFFICE OF ADMINISTRATIVE LAW JUDGES 


) 

In the Matter of ) 

) Docket No. 9356 

Ardagh Group S.A, ) 

a public limited liability company, ) PUBLIC 

) 

and ) 

) 

Saint-Gobain Containers, Inc., ) 

a corporation, ) 

) 

and ) 

) 

Compagnie de Saint-Gobain, ) 

a corporation. ) _________________________________ ) 

APPLICATION OF RESPONDENT ARDAGH GROUP S.A. UNDER RULE 3.25(a) 

FOR SETTLEMENT CONFERENCE 

Pursuant to Rule 3.25(a) ofthe Commission's Rules ofPractice for Adjudicative 

Proceedings, Respondent Ardagh Group S.A. ("Ardagh") requests that the Court convene 

an in-person settlement conference in order to facilitate settlement discussions. 

On June 28, 2013, the Commission issued an administrative complaint alleging that 

Ardagh's acquisition ofSaint-Gobain Containers, Inc. (d/b/a "Verallia North America" or 

"VNA") would threaten to substantially lessen competition in the manufacture and sale of 

glass beer containers and of glass liquor containers. On July 3, 2013, the Commission filed 

a substantively similar complaint in the United States District Court for the District of 

Columbia seeking injunctive relief to stop the proposed acquisition pending a resolution of 

injunction before Judge Barbara Rothstein in the District Court for the District ofColumbia 

is scheduled to start on October 17, 2013 and the evidentiary hearing on the merits in this 

Court is scheduled to b'egin on December 2, 2013. 

Since the filing ofthese lawsuits, the parties have been diligently trying to settle 

this matter. Any settlement necessarily begins with the identification of a group of glass 

container plants to be divested. 

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PUBLIC 


Ardagh made its first settlement proposal to the Bureau of Competition for the 

divestiture ofplants on July 2, 2013, the day after Ardagh was informed that the 

administrative complaint had been issued. In the course ofthe ensuing discussions, Ardagh 

proposed four alternative divestiture packages and the Bureau of Competition has replied 

with three divestiture packages. Despite good faith efforts, the parties have been unable to 

reach agreement on any of these proposals. 

On September 11, 2013, Ardagh made its sixth divestiture proposal to the Bureau 

of Competition, which consisted of the sale of four plants: Ardagh' s Jacksonville, FL and 

Warner Robins, GA plants together with the sale ofVNA's Wilson, NC and Dolton, IL 

plants. Collectively, these four plants produce the equivalent of almost 110% of Ardagh's 

2012 beer container sales and are capable ofproducing 125% ofVNA's 2012 liquor 

container sales. 

At that time, Ardagh also informed the Bureau of Competition that Ardagh was in 

negotiations with several buyers to purchase these plants, although given the stage of the 

negotiations Ardagh did not disclose the names of these bidders. In addition, Ardagh 

informed the Bureau of Competition that Ardagh is providing Ardagh and VNA craft beer 

customers an option to extend their existing supply contracts to December 31,2023. 

Ardagh hopes that the Bureau of Competition will agree that the sale of the four 

plants and the extension ofthe craft brewer contracts will suffice as the basis for a consent 

settlement (subject to identifying an acceptable buyer). However, given the time 

constraints, Ardagh informed the Bureau of Competition that it would proceed with selling 

the plants and extending the craft brewer contracts (both ofwhich would be conditioned on 

the completion of the acquisition ofthe remaining VNA plants), even if a consent 

settlement could not be reached. Ardagh also told the Bureau of Competition that it would 

inform Judge Rothstein ofthe restructuring ofthe transaction in Ardagh's opposition brief 

to the FTC's motion for a preliminary injunction to be filed on September 18,2013. 1 

At the September 24, 2013 pretrial conference before Judge Rothstein, FTC 

counsel argued that the District Court should not hear evidence on the restructured 

transaction because the FTC has not had time to assess whether the proposed restructuring 

eliminated the FTC's concerns about the challenged transaction. Judge Rothstein agreed, 

but urged the parties to move forward quickly and do whatever was necessary in order to 

see if a settlement was within reach. 

1 Courts have consistently held that when the parties restructure a transaction to eliminate the alleged 

reduction in competition supposedly resulting from the original transaction, the court will evaluate the 

probable effects of the restructured transaction, not the original transaction. See Mem. Op. at 6-8, FTC v. 

Arch Coal, Inc., No. 04-0534 (JDB) (D.D.C. July 7, 2004); FTC v. Libbey Inc., 211 F. Supp. 2d 34, 46 

(D.D.C. 2002); Order at 2-3, United States v. Franklin Elec. Co., No. 00-C-0334-C (W.D. Wis. July 19, 

2000). A copy ofRespondents' opposition brief, which was filed under seal in federal district court, has been 

forwarded separately. 

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PUBLIC 


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. i 

Given the current inability of the parties to reach agreement on the plants to be 

divested (despite a willingness on both sides to settle) and given the forthcoming hearing 

dates both in the District Court and in this Court, Ardagh respectfully requests that this 

Court exercise its discretion under Rule 3.25(a) to convene an in-person settlement 

conference at the Court's earliest convenience in order to facilitate settlement discussions. 

Dated: September 26,2013 Respectfully Submitted, 

s/ Wayne Dale Collins 

Wayne Dale Collins 

Lisl J. Dunlop 

SHEARMAN & STERLING LLP 

599 Lexington A venue 

New York, NY 10022 

Telephone: (212) 848 4000 

Facsimile: (212) 848 4173 

wcollins(a)shearman.com 

ldunlop@shearman.com 

Heather Kafele 

SHEARMAN & STERLING LLP 

801 Pennsylvania Avenue N.W. 

Washington, DC 20004 

Telephone: (202) 508 8000 

Facsimile: (202) 508 8100 

hkafele(a)shearman.com 

Attorneysfor Respondent Ardagh Group S.A. 

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PUBLIC 

CERTIFICATE OF SERVICE 

I hereby certify that on September 26, 2013, I filed the foregoing document electronically 

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

DonaldS. Clark 


Secretary 


Federal Trade Commission 


600 Pennsylvania Ave., NW, Rm. H-113 


Washington, DC 20580 


I also certify that I delivered via electronic mail and U.S. Mail a copy ofthe 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 ofthe foregoing document to: 

James E. Abell 


Monica Castillo 


Steven A. Dahm 


Joshua Goodman 


Edward D. Hassi 


Sebastian Lorigo 


Brendan J. McNamara 


Angelike Mina 


Catharine M. Moscatelli 


Angel Prado 


Kristian Rogers 


Danielle Sims 


Eric M. Sprague 


Steven L. Wilensky 


U.S. Federal Trade Commission 


699 PertrlS:Y-fti ani-a A'\'enne;=-NW 


Washington, DC 20580 


jabell@ftc.gov 


mcastillo@.ftc.gov 


sdahm({i)ftc.gov 


j goodman(a{ftc. gov 


ehassi(@ftc.gov 


slorigo@ftc.gov 


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PUBLIC 


bmcnamara@ftc.gov 


amina@ftc.gov 


cmoscatelli((l),ftc.gov 


aprado@ftc.gov 


krogers@ftc.gov 


dsims I @ftc.gov 


esprague@ftc.gov 


swilenksy@ftc.gov 


Complaint Counsel 

Christine V amey 


Yonatan Even 


Athena Cheng 


Cravath, Swaine & Moore LLP 


825 Eighth A venue 


New York, NY 10019 


(212) 474-1140 


cvarney@cravath.com 


veven@cravath.com 


acheng(@cravath.com 


Counselfor Respondent Saint-Gobain Containers, Inc. 

CERTIFICATE FOR ELECTRONIC FILING 

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

correct copy ofthe paper original and that a paper copy with an original signature is being 

filed with the Secretary ofthe Commission. 

September 26, 20 13 By: 	 s/Heather Ka&le 

Attorney 

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