PUBLIC ORIGINAL 

UNITED STATES OF AMRICA 

BEFORE THE FEDERA TRAE COMMISSION 

OFFICE OF ADMINSTRATIV LAW JUGES 

In the Matter of 

Ardagh Group S.A., 

a public limited liability company, and
 

DOCKET NO. 9356
 

Compagnie de Saint-Gobain, a corporation,
 

and
 

Saint-Gobain Containers, Inc.,
 

a corporation.
 

COMPLAINT COUNSEL'S MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE OF 

RESPONDENTS' POSSIBLE DIVESTITURES TO UNDETERMNED BUYERS 

Complaint Counsel respectfully moves in limine to exclude any evidence that 

Respondents may, at some future date divest certain glass container plants to an as-ye+­

undetermined third-part buyer. Respondents first raised the possibility that a divestiture might 

cure the anticompetitive effects of Ardagh Group, S.A.' s proposed acquisition of Saint-Gobain 

Containers, Inc. ("Proposed Acquisition") soon after the Commission voted to issue its 

Complaint in this case. In September, Respondents informed the United States District Court for 

the District of Columbia that they intended to sell four plants to a "new competitor" in an effort 

to eliminate the anti 
 competitive effects resulting from the Proposed Acquisition. This unilateral 

proposal came after the close of 
 the federal court's fact discovery and after the Commission's 

opening brief in the preliminary injunction action. Respondents' gambit was to convince the 

District Court that other federal courts have held that it is appropriate to evaluate a "restructured 

1 
PUBLIC 

transaction" instead of 
 the "original transaction."¡ While legally incorrect, the district court did 

not need to reach this argument. At the pre-trial conference for the preliminary injunction 

hearing, Judge Barbara J. Rothstein learned there was no "restructured transaction," since there 

was no definitive divestiture agreement and no definitive buyer. Judge Rothstein therefore ruled 

that it would be "premature and precipitous" for her to hear evidence of 
 Respondents' plan to 

divest assets and that she would not do so? 

Two months later, Respondents remain in virtually the same position regarding a 

potential divestiture as they were in when Judge Rothstein rejected evidence of their possible 

divestiture in federal couit. Although they now propose to divest a different group of 
 plants, 

Respondents have stil not identified a buyer, nor have they entered into any agreement to divest 

any glass container plants. Thus, Respondents' Proposed Acquisition remains unchanged from 

the transaction that is the basis of 
 the Commission's Complaint. Because there is no 

"restructured transaction" and the facts described in the Complaint remain unchanged, this Cour 

should preclude Respondents from offering evidence at trial relating to their undefined 

divestiture to an unidentified third part, just as the District Court did.
 

I. Factual Background
 

On July 1,2013, the Commission voted out a Complaint seeking to halt the Proposed 

Acquisition. The next day, Respondents suggested that a divestiture proposal might mitigate the 

Proposed Acquisition's anticompetitive impact. At the same time, Respondents vigorously 

continued to build their case, engaging in months of discovery, including dozens of depositions 

of part and third-part witnesses. Over the ensuing five months, Complaint Counsel and
 

i Defendants' Memorandum of 
 Law in Opposition to F.TC.'s Motion for a Preliminar Injunction at 39, FT.C. v. 

Ardagh Group, SA., Case No. 13-CV-1021 (BJR) (D.D.C. Sept. 18,2013), ECF Doc. 83-1. 

2 Exhibit 1 (Tr. of 
 Pre hearng Conference at 27-29, FT.C. v. Ardagh Group, SA., 13-CV-1021 (D.D.C. Sept. 24, 

2013)). 

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Respondents have engaged in a dialogue about possible divestitures to replace the competition 

that wil be lost as a result of 
 the Proposed Acquisition. Throughout, Complaint Counsel has 

encouraged Respondents to identify a buyer who wil take responsibility for creating a new 

competitor from the plants that Respondents may choose to divest. At the pre-trial conference 

for the preliminary injunction hearing on September 24,2013, Respondents represented to Judge 

Rothstein that they were in negotiations with "two to three buyers" and that they recognized that 

"time was short.,,3 Although Respondents have identified a number of possibly interested 

purchasers, to date, Respondents have not signed any definitive agreement with any buyer. 

Respondents have made no modifications to their January 17,2013 Share Purchase Agreement. 

Thus, the Proposed Acquisition is unchanged and the facts underlying the Commission's 

Complaint remain unchanged. 

Although fact and expert discovery had long since closed, Respondents' Final Witness 

List on November 18,2013 disclosed their intention to present unspecified "(r)epresentative(s) 

of the financial buyer of any divested assets" as a witness before this Court.4 But as of the date
 

on which this motion was filed - less than two weeks before the final pre-trial hearing and 15 

days before the trial is scheduled to commence - Respondents continue to negotiate with 

multiple potential buyers. Thus, no such "financial buyer" witness can be identified even today.5
 

Moreover, as set forth in greater detail in Complaint Counsel's Motion In Limine To Exclude 

Testimony From Witnesses That Respondents Addedto Their Final Witness List But Failed to 

3 Id at 20-21, 28.
 

4 Exhibit 2 (Respondents' Final Witness List, dated November 18,2013).
 

5 Even if 
 Respondents do, at some point in the future, reach an agreement to sell four plants to a defined buyer, any 

such agreement is unlikely to eliminate the need for the ments tnal, and thus, would not moot this Motion. Since 

the settlement conference held by Your Honor on October 31,2013, Complaint Counsel has spoken with a broad 

aray of market participants. Based on the feedback received, Complaint Counsel informed Respondents that a 

divestiture of four glass plants to any buyer is unlikely to resolve the Proposed Transaction's anticompetitive effects 

and that Complaint Counsel' is therefore unlikely to recommend that the Commission accept the proposed 

divestitures as par of a consent agreement. 

3 
PUBLIC
 

Disclose On Their Preliminary Witness List, Respondents' Final Witness List fails to include the 

required "brief summary of 
 the testimony of each witness.,,6 Thus, it is unclear whether 

Respondents propose to elicit testimony about the divestitures or any financial buyer's 

sufficiency as a potential new competitor to the remaining duopolists. 

II. Argument
 

A. Respondents' Hypothetical Divestiture Plans Are Not Evidence of a 

Definitive Divestiture Agreement, and are Therefore Inadmissible 

Respondents' hypothetical plans to potentially sell some assets to an undefined buyer 

contrast sharply with evidence of definitive agreements that other courts have admitted when 

evaluating Section 7 cases. For example, in FTC v. Arch Coal, Inc., the district court admitted 

evidence related to a definitive agreement to sell an identified coal mine to an identified buyer if 

the original transaction was permitted to close.? In permitting the introduction ofthis evidence, 

the district court noted that the merging parties in that case had signed a definitive agreement to 

sell the coal mine to the buyer during the pendency of 
 the FTC's investigation and before the 

FTC issued its complaint.8 Similarly, the district court in FTC v. Libbey, Inc. considered a 

signed, amended merger agreement instead of 
 the original merger agreement.9 The amended 

agreement allowed the seller to keep assets in order to remain competitive in the market at issue 

instead of 
 transferring those assets to the buyer.¡O The merging parties signed the amended 

agreement a week after the FTC sued and the amended merger agreement was fully vetted in 

discovery. ¡ ¡ In both cases, there was no ambiguity about which firms would own which assets, 

6 Exhibit 3 (October 18,2013 Revised Scheduling Order) at 2; see also Exhibit 4 (August 2,2013 Scheduling Order) 

at 1 (similarly requiring that the Preliminar Witness List include "a brief summary of the proposed testimony").
 7 Arch Coal, Inc., Memorandum Opinion at 7-8, Civ. Ac. No. 04-0534 (JDB) (July 7, 2004).
 

8 See id at 4-5.
 

9211 F. Supp. 2d 34, 37, 41 (D.D.C. 2002).
 

10Id at 41.
 

11 See id at 46 (noting that the Commission had also voted to enjoin the amended merger agreement).
 

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PUBLIC
 

and on what terms, if the transaction at issue was permitted to close, and Complaint Counsel had 

a full opportnity to consider the changes to the transactions in fact and expert discovery. 

In contrast, courts have dismissed evidence of non-specific divestiture plans when such 

offers were undefined or "made in the heat of a hearing.,,12 In Chemetron Corp. v. Crane Corp., 

the court did not consider evidence of 
 the defendant's offer to sell its welding fittings business 

because no contract, and thus, "no specificity attended" the defendant's hypothetical plan.13 In 

Consolidated Gold Fields, Inc. v. Newmont Mining Corp., the court similarly dismissed 

divestiture "promises" and "intentions" when the acquiring firm did not yet control one of 
 the 

14 mines slated for divestiture. 


Unlike in Arch Coal and Libbey, discovery has closed in this case and Respondents have 

not penned any definitive agreement or defined any buyer. Like the Chemetron Corp. and 

. Consolidated Gold Fields defendants, Respondents seek to present evidence of mere divestiture 

aspirations, near the heat of the administrative hearing, and ask this Court to accept its promises 

and intentions, including those relating to two plants that Ardagh, the acquiring firm, does not 

yet own. As such, the landscape remains unchanged from two months ago when Judge 

Rothstein, recognizing the indeterminate nature of the plans, ruled it would be "premature and 

precipitous" to consider such evidence in the preliminary injunction hearing. IS 

More than two months after the district court's ruling and after the close of discovery in 

this Court, Respondents stil do not have a definitive deal to a sell a defined package of glass 

plants to an identified buyer. In fact, the identity of 
 the four plants that they propose to sell has 

changed in the past two months, further underscoring the nebulous nature of 
 Respondents' plans. 

12 Chemetron Corp. v. Crane Co., No. 77 C 2800,1977 WL 1491, at *7 (N.D. Il. Sept. 8, 1977). 

13 Id
 

14698 F. Supp. 487, 502 (S.D.N.Y. 1988), rev 'd in part on other grounds, 871 F.2d 252 (2d Cir. 1989). 

15 Exhibit 1 (Tr. ofPreheanng Conference at 27-29, FT.C v. Ardagh Group, SA., 13-CV-I021 (D.D.C. Sept. 24, 

2013)). 

5 
PUBLIC
 

There is no reason to admit evidence of this kind when courts have uniformly dismissed such 

evidence in the past. The time to restructure the Proposed Transaction to alleviate its 

anticompetitive effects has long since passed.16 This Court, consistent with Judge Rothstein's 

ruling, should bar Respondents from introducing any evidence of 
 Respondents' uncertain plans 

to divest plants to an unidentified buyer. 

B. Admitting Evidence of a Proposed Divestiture to an Undisclosed Third Part
 

Would Be Prejudicial to Complaint Counsel 

Finally, admitting evidence of a possible divestiture to an undisclosed third part would 

be prejudicial to Complaint CounseL. Respondents bear the burden of demonstrating to the 

Court, through fact and expert testimony, that their potential divestitures can be combined to 

create a new competitor that wil replace the competition that would otherwise be lost as a result 

of the Proposed Acquisition. But the divestitures that Respondents are now proposing were first 

disclosed after both fact and expert discovery closed. Moreover, Respondents' failure to provide 

the required "brief summary of 
 the testimony of each witness" leaves unclear what testimony 

Respondents in fact plan to offer.17 Accordingly, Complaint Counsel has had no opportnity to 

take discovery regarding, among other things, the terms of any divestiture agreement, any 

buyer's financial viability, the buyer's plans for the business, its strength as a competitor, and its 

projected impact on competition. Respondents' failure to enter into a divestiture agreement or 

identify a buyer during the discovery periodl8 prevented Complaint Counsel from obtaining any 

of this necessary discovery. 

16 See United States v. £.1. du Pont de Nemours & Co., 353 U.S. 586, 607 (1957) (the test of a violation of § 7 is 

"whether, at the time of suit, there is a reasonable probability that the acquisition is likely to result in the condemned 

restraints.")

17 Exhibit 3 (October 18, 2013 Revised Scheduling Order at 2); Exhibit 4 (August 2, 2013 Scheduling Order at 1). 

18 Respondents did not reveal their intent to introduce evidence at trial from a proposed financial buyer until 

submission of their Final Witness List on November 18, 2013, nearly two months after the close of discovery. As 

discussed supra, to this day Respondents stil have not entered into a divestiture agreement nor have they identified 

the buyer. 

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PUBLIC
 

Moreover, Complaint Counsel has been unable to take discovery from third-part 

customers regarding a potential divestiture. Indeed, without knowing the identity, number, and 

location of 
 the plants ultimately to be divested, or the buyer's identity, Complaint Counsel could 

not ask customers during their depositions about the buyer's viability as a glass competitor, its 

impact on competition, or the customers' ability or wilingness to purchase glass from the 

19 buyer. 

Given the severe impediment to Complaint Counsel's ability to effectively brief 
 this 

Court on the competitive implications of a possible divestiture, this Court should exclude this 

prejudicial evidence. 

III. Conclusion
 

For the foregoing reasons, Complaint Counsel respectfully requests that the Court 

exclude any evidence of 
 Respondents' possible divestitures to undetermined third-part buyers. 

Dated: December 4,2013 Respectfully submitted, 

sf Edward D. Hassi 

EDWARD 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(ã)ftc.gov
 

19 Complaint Counsel has taken over 30 third-par depositions of 
 brewers and distilers. 

7
 
PUBLIC
 

UNITED STATES OF AMRICA
 

BEFORE THE FEDERA TRAE COMMSSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

In the Matter of 

Ardagh Group S.A., 

a public limited liability company, and 

Compagnie de Saint-Gobain, a corporation, DOCKET NO. 9356 

and 

Saint-Gobain Containers, Inc., 

a corporation. 

(proposed) ORDER 

After reviewing Complaint Counsel's Motion in Limine to exclude any evidence of 

Respondents' Possible Divestitures to Undetermined Buyers, it is ordered that Respondents are 

precluded from offering evidence of any possible divestitures to undetermined third-part 

buyers. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: December _' 2013 
PUBLIC 

UNITED STATES OF AMRICA
 

BEFORE THE FEDERA TRAE COMMSSION
 

OFFICE OF ADMINISTRATIV LAW JUDGES
 

In the Matter of 

Ardagh Group S.A., 

a public limited liability company, and 

Compagnie de Saint-Gobain, a corporation, DOCKET NO. 9356 

and 

Saint-Gobain Containers, Inc., 

a corporation. 

STATEMENT REGARING MEET AND CONFER
 

Pursuant to Paragraph 4 of 
 the Scheduling Order, Complaint Counsel and Counsel for the 

Respondents met and conferred in good faith in an effort to resolve by agreement the issues 

raised in this motion and have been unable to reach such an agreement. 

Dated: December 4, 2013 Respectfully submitted, 

sf Edward 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 
PUBLIC
 

. EXHIBIT 1
 
5

10

15

20

25

1 

tJlìH
 

i	 UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMIA 

2 

3	 UNITED STATES FEDERAL CA Number 13-1021 

TRADE COMMISSION, 

4 

Plaintiff, 

v.	 Washington, D. C . 

6 Tuesday, September 24, 2013 

ARDAGH GROUP, S .A., et al., 10:04 a.m. 

7 

- - - - x
 

8 

, ., 9 TRASCRIPT OF PRE-HEARING CONFERENCE 

BEFORE THE HONORALE BA J. ROTHSTEIN 

UNITED STATES DISTRICT JUGE 

11
 

APPEARANCES:
 

12
 

For the Plaintiff: EDWARD DAVID HASSI, ESQUIRE 

13 FEDERAL TRADE COMMISSION 

600 Pennsylvania Avenue, N.W. 

14 Suite H-374 

Washington, D. C. 20580 

202-326-2470 

ehassi@ftc. gov
 

16 

BRENDAN J. McNAM, ESQUIRE 

17 FEDERAL TRADE COMMISSION 

Mergers II Division 

18 601 New Jersey Avenue, N. W. 

Suite 6117 

19	 Washington, D.C. 20001 

202-326-3703 

bmcnamara@ftc.gov 

21 CATHARINE MARY MOSCATELLI, ESQUIRE 

FEDERAL TRADE COMMISSION 

22 Bureau of Competition 

600 Pennsylvania Avenue, N. W. 

23 NJ 6119 

Washington, D. C. 20580 

24	 202-326-2749 

cmoscatelli@ftc. gov
 
5

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2 

1 APPEACES (Continued):
 

2 

3 

For the Plaintiff: 

4 

6 

7 

8 

For Defendant 

Ardagh Group: 

9 

13 

14 

11 

12 

16 

17 

18 

19 

For Defendant 

Saint -Gobain 

21 

22 

23 

24 

Court Reporter: 

ANGELIKE ANDRINOPOULOS Mina, ESQUIRE
 

FEDERAL TRADE COMMISSION
 

Bureau of Competition
 

601 New Jersey Avenue, N. W.
 

Suite 6127
 

Washington, D.C. 20001
 

202-326-3119 

amina@ftc . gov 

RICHARD SCHWED, ESQUIRE
 

SHEARMN & STERLING 

599 Lexington Avenue
 

New York, NY 10022
 

212-848-4000 

rschwed@shearman. com
 

ALAN S. GOUDISS, ESQUIRE
 

SHEARMN & STERLING LLP 

599 Lexington Avenue
 

New York, NY 10022
 

212-848-4000 

agoudiss@shearman. com
 

HEATHER LAMBERG KAFELE, ESQUIRE
 

SHEARMN & STERLING, LLP 

801 Pennsylvania Avenue, N. W.
 

Washington, D.C. 20004
 

202-508-8097 

202-508-8100 (fax) 

hkafele@shearman. com
 

YONATAN EVEN, ESQUIRE
 

CRA VATH, SWAINE & MOORE LLP 

Worldwide Plaza
 

825 Eighth Avenue
 

New York, NY 10019
 

212-474-1000
 

212- 4 7 4 - 3 700 ( fax )
 

yeven@cravath. com
 

THERESA M. SORENSEN, CVR-CM
 

Official Court Reporter
 

333 Constitution Avenue, N. W.
 

Washington, D.C. 20001
 

202-354-3118 

theresams@erols. com
 
i- ii- ir
 

3 

1 PROCEEDINGS 

2 THE DEPUTY CLERK: The matter before the Court, 

3 Civil Action Number 13-1021, the United States Federal Trade 

4 Commission versus Ardagh Group S .A., et al. 

5 Counsel, please come forward and identify 

6 yourselves for the record. 

7 MR. HASSI: Good morning, Your Honor. I'm Ed 

8 Hassi. I'm with the Federal Trade Commission. With me at 

9 counsel table are Brendan McNamara, Cathy Moscatelli, and 

10 Angelike Mina. 

11 THE COURT: Okay, good morning. 

12 MR. SCHWED: Good morning, Your Honor. Richard 

13 Schwed of Shearman & Sterling for the Defendant Ardagh 

14 Group, and with me from Shearman & Sterling are Alan Goudiss 

15 and Heather Kafele. 

16 MR. EVEN: Good morning, Your Honor. Yonatan Even 

17 with Cravath, Swaine & Moore, for Defendant Saint-Gobain. 

18 THE COURT: Well, good morning, counsel. 

19 I don't know if you were prepared to address me, 

20 but why don't we start out by my telling you my concerns, 

21 and then you probably can fill me in on your plans. 

22 I know we're having a hearing in about a month,
 

23 and my concern was just the structure of that hearing and 

24 what you anticipate will take place there, and giving you 

25 some idea of what I would expect in terms of the procedures 
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t" ii- I II 

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you will use, and my sort of idiosyncrasies in terms of
 

conducting a hearing like this.
 

My first concern would be that all exhibits be
 

pre-marked and pre-admitted. I can't imagine that there
 

would be any dispute about exhibits at a hearing like this,
 

but I could be wrong and you can tell me if I am wrong. I
 

don't want to -- you know, we only have that short period of
 

time, and I know you're intending to fill it. I don't want
 

! 

i to fill it with arguments about exhibits.
 

Just a word of caution. If it turns out both
 

sides are using the same exhibit, pick a number, any number.
 

I don't care whose side it is. Just don i t use two different
 

numbers. It's only going to confuse me, all right? One
 

number will be enough. If you really can cooperate, you
 

could number them consecutively, and then it will be very
 

easy for the clerk and for me.
 

Are there any exhibits that you would like for me
 

to review in advance that you think might speed things
 

along? Now, let me just give you an idea of where I am
 

coming from. I can i t review them really in advance because
 

I'm coming back from a trip just the day before, and I'm not
 

taking them with me, I can tell you that. But like if you
 

have some the night before the next day of the hearing you
 

think it would be good for me to take a look at, keep that
 

in mind. I'm willing to do so that I sort of have a nodding
 
5 

t li-iir 

1 acquaintance with them before a witness takes the stand.
 

2 That's my next question. Are there going to be
 

3 wi tnesses? If so, tell me. Tell me how many, both sides.
 

4 Will you agree on an order? Will they be here, be ready to
 

5 go? If you're going to have witnesses and they are kind of
 

6 experts in their field of some kind, I can read CVs faster
 

7 than they can tell me what they've done and what they've
 

8 published, and where they went to school. You can take me
 

9 as far back as high school as long as you put it in writing
 

10 because then I can read it really fast.
 

11 I will throw out an idea, and I assume you're
 

12 going to say, yes, there are going to be witnesses. One way
 

13 of speeding things along -- I'm not sure it will work here. 

14 I just throw it out to you to think about -- many times in
 

15 hearings like this it can be helpful to prepare the direct
 

16 in the form of a statement and then have me read the
 

17 statement, ask questions if there's something in there I 

18 don't understand, and then just proceed with 

19 cross-examination. Or with a limited direct if there are 

20 charts to show me to help me along. I don't know if that's 

21 helpful or not. Sometimes it is, sometimes it isn't.
 

22 It is helpful if you think that you've asked for 

23 three days and then all of a sudden you find you're going 

24 five and I don't have those five days, and then directs 

25 would be helpful. But if you're staying within your time
 
¡-ITH rr 

6 

1 and you think it would be easier for me to get it with the
 

2 person here and then being able to -- pros and cons. i will
 

3 let you decide. I don't feel strongly about it because
 

4 sometimes my ability to ask questions of the witness, I
 

5 could do even with a written direct. You decide. It may be
 

6 acceptable for some witnesses and not others.
 

7 I'd like to hear from you if you've made any
 

8 allocation of time. Are you splitting it? FTC is 

9 plaintiff, so usually you would get a rebuttal, although I'm
 

10 not sure rebuttal really applies to something like this. 

11 But if you're thinking you want a rebuttal, then let's split 

12 the time, and you carefully reserve some time. I think we 

13 should try to keep the time in mind. 

14 I will try to give you an hourly day so that you 

15 know how much time you have. I don't believe in chess 

16 clocks. I think they ruin the ambiance of the courtroom,
 

17 but I do expect that my clerk will keep time. So I think
 

18 you should be thinking of staying within your time limits. 

19 Okay, I've given you my concerns. Who wants to 

20 lead off? You look like you're ready to go, counsel. 

21 MR. HASSI: Yes, I think I am, Your Honor. Again,
 

22 Ed Hassi for the Federal Trade Commission.
 

23 There are some concerns we have and some issues,
 

24 some of which you have already addressed. I wanted to start 

25 out with scheduling. After our discussion with your law 
t- oi ôT
 

7 

1 clerk, we've had a further discussion about scheduling. We
 

2 have some minors changes to the scheduling order. They are
 

3 agreed by all parties. We can send in a revised scheduling
 

4 order today, and I can walk you through those changes or we
 

5 can simply send it in, however Your Honor would like to
 

6 proceed.
 

7 THE COURT: Tell me now, and also send it in.
 

8 MR. HASSI: Okay. So the changes -- I'm sorry, 

9 I've got a black line here that shows it, which I can hand
 

10 up if Your Honor would like
 

11 THE COURT: Sure. 

12 MR. HASSI: -- to the scheduling order. 

13 THE COURT: Thank you. 

14 MR. HASSI: So the changes don't start until 

15 page 6, paragraph 21, and that is as we've we just 

16 completed expert discovery on Friday. It may be that one or 

17 both parties choose to make Daubert motions, and so we've
 

18 built into the schedule a briefing schedule for potential
 

19 Daubert motions.
 

20 THE COURT: But you must know by now whether 

21 you're going to bring Daubert motions. It's not the 27th, 

22 but you must have a pretty good idea. You guys wouldn't 

23 start a brief on the night of the 26th. I know you better. 

24 MR. HASSI: Your Honor, I think it's our 

25 expectation that we will bring one or more Daubert motions.
 
i- I~I" 

8 

1 We, to be fair, are still evaluating that, but, yes, there 

2 is someone back at the office working on Daubert motions.
 

3 THE COURT: Why would I think that might be the
 

4 case, but let me explore this. You're bringing a Daubert
 

5 motion to exclude the expert from this hearing?
 

6 MR. HASSI: To exclude the expert, some of the
 

7 experts or some of the experts' testimony.
 

8 THE COURT: Now, you're aware that in order to
 

9 make that ruling I need to hear from the expert, right?
 

10 MR. HASSI: Yes, Your Honor. I understand the
 

11 Catch 22 involved. 

12 THE COURT: Yes. You still think that's a 

13 worthwhile motion to make? Is it because you don't want me 

14 to consider what that expert is saying, is that it? 

15 MR. HASSI: I think what our intention is, is to 

16 limit -- there are some opinions that are being offered here 

17 by, for example, experts in the field that are going to say, 

18 "Well, there's a trend, for example, to beer in cans," and 

19 at least one of these experts thinks that he knows better
 

20 than the people that are -- the businesspeople that in the 

21 field. It's not based on any methodology, anything
 

22 testable. It's just, "Gee, I've done this before, and I
 

23 know better than the people that are running these 

24 multimillion dollar businesses." 

25 We think that that should be brought to light. I
 
tJ fH 

9 

1 understand it can be brought to light in cross-examination.
 

2 The concern we really have here is the limited period of
 

3 time that we have before Your Honor, and we thought that if
 

4 we could address some of these issues in advance in the form
 

5 of a motion, it might help speed things along at the trial.
 

6 THE COURT: Okay. I can tell you right now that I
 

7 probably will not have time to review those motions. I
 

8 don't want to I don't want to nip in the bud any 

9 wonderful briefs that you're doing, but I'm going to hear 

10 these witnesses anyway. 

11 MR. HASSI: Okay.
 

12 THE COURT: Well, you can give me the I'll hear 

13 the witnesses. Just know that I'm not going to be reading 

14 those motions before I hear the witnesses, but I will read 

15 them, and if it's correct that the testimony I've heard
 

16 should have been excluded or doesn't qualify as an expert, 

1 7 then I can do that later on. But in terms of your
 

18 timekeeping, that's what I'm trying to help you with. 

19 MR. HASSI: I appreciate that. 

20 THE COURT: In terms of the timekeeping, I won't
 

21 be in a position to exclude anybody before the hearing,
 

22 okay?
 

23 MR. HASSI: Okay, Your Honor.
 

24 THE COURT: So count on the fact that whoever
 

25 you're objecting to will testify, and if I do any excluding
 
10 

til-l "
 

1 of testimony, it will be later on when I have had a chance
 

2 to read the briefs. Okay?
 

3 MR. HASSI: I understand.
 

4 THE COURT: So it i S not going to help you in time,
 

5 but it may still help. I didn't mean to say that you
 

6 shouldn i t pursue. It i s just that in terms of timing, it i s 

7 not going to happen beforehand, okay?
 

8 MR. HASSI: Okay. We will keep that in mind in
 

9 terms of whether we file or don i t file, Your Honor. 

10 THE COURT: An updated witness list -­

11 MR. HASSI: Witness list, and I think taking into 

12 account what Your Honor has already said this morning, we 

13 have this week to sort of work that out and try to provide 

14 each other with clear indications of who will actually be 

15 called to testify live at the hearing versus, for example,
 

16 being submitted by deposition testimony. So that i s 

1 7 scheduled to happen on Friday.
 

18 Some of these changes, for example, paragraph 23,
 

19 these were made previously. In terms of the briefing 

20 schedule, we are just annotating them here. Our brief and 

21 reply will be due on September 30th. We propose to exchange
 

22 exhibit lists, copies of exhibits and deposition
 

23 designations, instead of on the 30th, on October 2nd, so 

24 moving that back by a couple of days. 

25 Paragraph 25 goes to oppositions to Daubert 
11 

i- 11-1 II
 

1 motions.
 

2 Paragraph 26, we propose to exchange objections
 

3 instead of on -- to exhibits and counter deposition
 

4 designations, instead of on October 3rd, on October 9th.
 

5 And then we have reply briefs on any Daubert motions
 

6 scheduled for October 9th.
 

7 In the post trial briefing -- in paragraph 31, we 

8 corrected the hearing dates and times. And then for the
 

9 post trial briefing, what we would propose to do is, since
 

10 the trial will continue into that Monday, instead of having
 

11 the findings of fact due that Friday, we've pushed them to
 

12 the following Monday. And then the reply findings of fact, 

13 instead of October 30th, to November 1st.
 

14 So those are the proposed changes. As I 

15 mentioned, they are agreed to by all parties. 

16 THE COURT: Sounds good to me.
 

17 MR. HASSI: Okay.
 

18 THE COURT: I think that is a reasonable schedule, 

19 and if it gives you more time to get everything prepared, so
 

20 much the better.
 

21 MR. HASSI: The parties will submit a proposed
 

22 ordered this afternoon.
 

23 THE COURT: Great. Let me ask you your opinion.
 

24 Do you think there is going to be any problem with exhibits?
 

25 MR. HASSI: I hope not, Your Honor. I think for
 
12 

l" il-l rr 

1 the most part these are going to be business documents out
 

2 of the companies' files and/or third parties' file, so I 

3 hope not.
 

4 THE COURT: Good.
 

5 MR. HASSI: I understand with Your Honor's
 

6 schedule we've already talked about the fact that we 

7 really need to work this out given when the hearing starts
 

8 and we don't have -- that this is our opportunity for
 

9 pretrial, and so we'll try to resolve that as much as
 

10 possible. 

11 THE COURT: Okay. Let me make one suggestion
 

12 because I've found that's often where the best intentions 

13 can flounder. 

14 If you are using the demonstrative exhibits, 

15 charts, things like that with your experts, and you might
 

16 because they probably would be helpful to the Court -- if 

17 you're not using -- I say charts, and that's a -­

18 MR. HASSI: We hope they will be helpful, Your 

19 Honor.
 

20 THE COURT: -- that's a give-away of my
 

21 generation. If you're using something that you're going to
 

22 put on the computer since nobody makes charts anymore, show
 

23 it to the other side so that they don't see it for the first
 

24 time the morning of and then say, "No, no, that's 

25 inaccurate. Can you make a change?" Since it's usually
 
tJ' ii IT
 

13 

1 very difficult to make a change at the last minute, include
 

2 those as exhibits that you talk about, okay, so that -­

3 MR. HASSI: Okay. 

4 THE COURT: It's just a matter of time, you know. 

5 Do you want to waste time saying, no, that should be this
 

6 percentage and not that percentage?
 

7 MR. HASSI: Okay. 

8 THE COURT: Just a word of advice.
 

9 MR. HASSI: Okay.
 

10 THE COURT: It sounds like you have anticipated
 

11 pretty much everything. Is there anything else we need to
 

12 talk about? 

13 MR. HASSI: There are some housekeeping matters
 

14 that I think we would like to address. There is also one, I
 

15 think, fairly significant substantive matter that we wanted
 

16 to raise with Your Honor as well. I can do those in either
 

17 order. The substantive matter may be, in some respect, the
 

18 elephant in the room, and so why don't I do that first? 

19 And that is, if Your Honor has read Ardgh' s brief 

20 that was filed last week, there's an 11th hour suggestion in
 

21 that brief that they're going to propose a remedy here, to
 

22 sell off four glass plants. That's news to us. It's news
 

23 that comes after the close of fact discovery. It comes
 

24 after our expert reports were in. It comes after our briefs
 

25 were in. 
14 

l" ii If
 

1 Now, Ardagh has known for months that the Federal
 

2 Trade Commission has concerns about this transaction.
 

3 Indeed, they understood that there were antitrust concerns
 

4 when they entered into the transaction.
 

5 They decided not to address those concerns when
 

6 they were in the investigatory stage. They decided not to
 

7 address those concerns when they came before the Commission,
 

8 and they decided not to address them in a timely fashion so
 

9 that we could take fact discovery on that.
 

10 What they now propose to do is put these plans, 

11 hopes, wants, intentions in front of the Court at trial with 

12 no discovery whatsoever, and to ask you to evaluate that 

13 remedy without us having the opportunity to evaluate it, 

14 without us having the opportunity to take discovery on it, 

15 and without us having the opportunity to give Your Honor our 

16 views on whether that remedy is sufficient. Clearly, at 

17 this point it isn't. I mean, at this point it's just an
 

18 intention to sell.
 

19 They haven't identified a buyer. They haven't
 

20 identified how much these are being sold for. They haven't
 

21 given us a chance to evaluate what they're proposing to do, 

22 is to sell four plants, two each from two of the companies.
 

23 And they say, "Well, that will form a business that will 

24 restore competition in this market." 

25 We don't know if those four plants can be combined 
t- iiTr 

15 

1 into a business, and so there are a lot of very serious
 

2 questions we have about that. And we don't think that he
 

3 gamesmanship that's being played here by waiting until the
 

4 11th hour should be addressed at this hearing. We don't
 

5 think that that evidence should come in without us having a
 

6 chance to have had discovery, and without us having had a
 

7 chance to evaluate it, and, frankly, until the facts are 

8 jelled, if you will. I mean, there's not an agreement for
 

9 sale here.
 

10 The parties cite in their briefs three cases in 

11 which remedies have been litigated before. The first of 

12 those, Arch Coal, was a case that the FTC brought. In fact, 

13 it was Ms. Moscatelli' s shop that brought it. In that case,
 

14 the changes to the proposed transaction were two months
 

15 before the case was first filed by the FTC. So they had a 

16 chance to 
 address it in discovery, and they had a chance to
 

17 consider it, and the Commission had a chance. When I say
 

18 the "Commission," I mean the commissioners had a chance to
 

19 evaluate it and vote on it. That hasn't happened here.
 

20 They cite Franklin Electric. That's a case 

21 involving the DOJ. In Franklin Electric, they changed the 

22 joint venture one day after the DOJ filed. Again, well
 

23 before the -- I mean, the discovery period hadn't even
 

24 started yet, and so the parties had a chance to address it
 

25 and address it in discovery. 
tJ ii-r
 

16 

1 The final case they cite is Libby, and in Libby
 

2 that was the latest of the three. But in Libby, it was one
 

3 month into -- one month after the complaint was filed they
 

4 made changes. And when I say "made changes," it's not like 

5 here where they're saying, "Gee, we're going to sell these
 

6 four plants." 

7 They said, "Here's what we're going to do. Here's
 

8 the modified agreement. Here's who's involved," and the
 

9 parties had a chance to vet that in discovery. Here what
 

10 they're saying is -­

I 1 THE COURT: Let me ask you something.
 

12 MR. HASSI: Yes, Your Honor. 

13 THE COURT: What are you asking the Court to do?
 

14 Are you asking the Court to just not allow testimony. on this 

15 at all? 

16 MR. HASSI: Yes, Your Honor. We're asking -- we
 

17 can do this as a motion in limine, but we don't think that 

18 evidence of this 11th hour proposal -- it comes after fact 

19 discovery -- should be heard in these proceedings. 

20 THE COURT: All right. Let me -- let me play out 

21 a scenario here, okay?
 

22 MR. HASSI: Yes, Your Honor. 

23 THE COURT: It is in the Court's interest not to 

24 render advisory opinions or opinions that are going to be 

25 moot in about a day or two after I render it. Let's say I 
i- ii- I II 

17 

1 grant whatever motion, whatever form you i re going to bring a
 

2 motion in, and I exclude all that evidence. Then I give you
 

3 a ruling one way or the other. Obviously if I rule against
 

4 the FTC, then the whole thing is moot, but if I rule for the 

5 FTC, then I presume they would come back with the excluded
 

6 information and bring the whole thing allover again, right?
 

7 MR. HASSI: Well, Your Honor, I think in light of 

8 the fact that this is a 13 (B) proceeding, and that what
 

9 we're asking Your Honor to do here is to preserve the status
 

10 quo pending the trial, before the FTC and before the
 

11 Commission, I'm not sure that that's correct. In other 

12 words, if there is a remedy to be fashioned, the Commission
 

13 ought to have a chance to fashion that remedy. 

14 What we're asking Your Honor to do is to decide 

15 are there serious and substantial questions going to this 

16 transaction such that I should require the parties -- that 

17 Your Honor should require the parties to preserve the status 

18 quo, and that's all we're asking here. Whether that remedy,
 

19 the sale of those four plants and the possible buyer that
 

20 they mayor may not come up with -- and they i re just 

21 starting to talk to buyers -- whether that remedy suffices
 

22 can be addressed, if necessary, in a merits trial. And I 

23 think that depends on whether they get to a deal and whether
 

24 they get to a buyer, et cetera. But we don't think that 

25 these proceedings should be held up, or that Your Honor 
18 

11..(1 II 

1 should be deciding -- with no evidence, frankly. I mean, if
 

2 you look at their brief, there's not a footnote, there's not 

3 a citation to any evidence. This is just they're going to
 

4 put somebody on the stand who says either: "Here's what we
 

5 intend to do," or, "Here's what we've done in the weeks
 

6 since discovery has closed." We think we're severely
 

7 prejudiced by that, Your Honor.
 

8 THE COURT: Okay. Did you want to address -­

9 well, I'll tell you what, let's address this now from the
 

10 other side, and then we'll go into your housekeeping
 

11 matters. 

12 MR. HASSI: Very well, Your Honor. 

13 THE COURT: Okay. 

14 MR. SCHWED: Thank you, Your Honor. Richard 

15 Schwed for Ardagh Group.
 

16 I think maybe I can start by backing up and 

1 7 explaining the revised transaction that we've proposed, and
 

18 this isn't something that's a gambit. It's not an 11th hour
 

19 strategy. Basically, since this case was filed, we've been
 

20 trying to come up with the FTC to a consensual arrangement.
 

21 We have not been able to do that. We've discussed a number
 

22 plants. We have not been able to reach an agreement. We
 

23 finally decided that there was not going to be time or
 

24 ability to get that done, and that we would unilaterally
 

25 agree to divest four of the plants that were going to be 
1- 11-1 II
 

19 

1 part of the combined entity, two that we already own and two
 

2 that we're purchasing.
 

3 This is relevant -- I'm not sure how much Your
 

4 Honor -- since you've been recently reassigned to this
 

5 case -- has gotten into the -- what the case is all about,
 

6 but essentially the fundamental question in this case is
 

7 whether glass bottles compete with other forms of packaging,
 

8 and, in particular, the most important is cans for beer and
 

9 plastics for spirits, alcohol. There is a fundamental
 

10 question that that brings up which is sort of the starting 

11 point of all cases, which is what is the product market.
 

12 We strongly believe that we can win this on the 

13 definition of the product market. That's the exact same 

14 case that the exact same product market issue that was 

15 addressed by the Supreme Court in Continental Can 50 years 

16 ago, and by this court about 25 years ago in the 0-1 

1 7 Brockway case and by the FTC, where both courts have said
 

1B that cans and glass are in the same product market. It is a 

19 rare case when you have a merger case and there's a relevant
 

20 product market, and there i s a Supreme Court case and a 

21 binding case that have said that the product market that the 

22 FTC is claiming is not the right product market, and, in 

23 fact, the FTC Commission itself has found that that is not
 

24 the right product market.
 

25 Now, the revised transaction we are proposing is 
20 

t' 11-1 ie
 

lone that addresses the question: Well, what if Your Honor
 

2 does not agree with us on the product market? Because it is
 

3 our view that there is not going to be a diminution in
 

4 competition with this transaction even in the revised
 

5 product market, even if their product market is correct.
 

6 But out of an abundance of caution, what we have done is
 

7 agreed to sell these four plants which we believe
 

8 100 percent addresses the concerns that have been raised by
 

9 the Commission.
 

10 There are three plants that make beer. Those 

11 plants combined have -- their beer sales that they have made
 

12 in this past year are 110 percent of what Ardgh' s beer sales
 

13 were itself. So in other words, we're selling more than our
 

14 own beer business effectively. And so the combined entity
 

15 will have less beer business than just one of the two -- the 

16 bigger of the two entities had before the transaction. 

17 THE COURT: Are you going to do that even if the
 

18 Court rules with you? 

19 MR. SCHWED: Well, we are going to enter into a
 

20 definitive purchase agreement because we recognize time is
 

21 short, and we don't have time, necessarily, to wait for the 

22 Court to issue a ruling, and, then, if things don't go our 

23 way, to circle back and then complete this transaction and
 

24 get this deal closed by the drop-dead date of mid-January.
 

25 So what we have decided to do in order to make sure that 
i- IHI II
 

21 

1 this can all be done in time, is to enter into binding
 

2 agreements that are -- obviously they have to be contingent
 

3 on the transaction closing because we can't sèll what we
 

4 don't own, but the binding agreements -- a single binding
 

5 agreement with them to buy the four plants, and then
 

6 immediately upon closing the transaction, those four plants
 

7 will be transferred to the buyer.
 

8 THE COURT: So if I rule in your favor about the 

9 market question, you will still go ahead with this plan?
 

10 MR. SCHWED: We will still go ahead with it. 

11 That's the situation we've agreed to be in. 

12 THE COURT: Don't you think that the FTC should 

13 get a crack at what you're planning? You i re telling me it's 

14 definitive. What I heard from counsel was that they don't
 

15 even know that you have a binding contract. 

16 MR. SCHWED: Well we don't yet have a binding 

1 7 contract. We i re in negotiations. They i ve known for -­

18 they've known for two weeks now that we are -- the ident it Y 

19 of the four plants we are planning to sell. Since then, 

20 they have deposed our CEO and asked him extensively about
 

21 the plans to sell the four plants. They have deposed our
 

22 chairman who is running the process and asked him
 

23 extensively about the plans to sell the plants. It was the 

24 primary focus of the deposition. There is nothing else that 

25 they have identified to us that they need that prevents them 
til-l II
 

22 

1 from -- they're saying that we want try this without giving
 

2 them a chance to put on their case about it, but they've
 

3 known about -- they have detailed information about each of
 

4 these four plants that they've had for a long time.
 

5 THE COURT: Two weeks? 

6 MR. SCHWED: No. I'm saying the detailed 

7 information about the four plants they've had for months.
 

8 In other words, we've given them plant by plant detail in
 

9 the whole discovery process, even before the lawsuit was
 

10 filed. They have had plant by plant detail, and they have
 

11 known about the exact contours of the transaction, the exact 

12 four plants, for two weeks.
 

13 Now, two weeks may not sound like a lot, but that 

14 ends up putting them about five weeks before the hearing, 

15 and a number of the cases that are cited by both sides in 

16 this were decided in the entire case, from the date it was
 

17 filed until the date of the hearing, was between five and
 

18 eight weeks. So it' s~ not -- in the context of maybe a 

19 five-year litigation, something that's five weeks before the
 

20 actual hearing date may sound like the 11th hour, but in the 

21 context of lawsuits that often take five, six, seven, eight 

22 weeks, five weeks before the hearing gives them plenty of 

23 time to address what is really only one sub-issue of the 

24 case. It a doesn't affect the product market analysis, it
 

25 doesn't affect the geographic market analysis, it only 
23 

t- ii- I II 

1 affects the question of the harm to competition and -­

2 THE COURT: Only? 

3 MR. SCHWED: I'm sorry? 

4 THE COURT: Only affects the harm to -­

5 MR. SCHWED: Well, just in terms of the amount of 

6 analysis. In other words, what I'm saying, Your Honor, is
 

7 that there have been entire cases, from product market
 

8 through the end of the case, that have been tried in six
 

9 weeks. 

10 THE COURT: Let me ask you something. Do you 

11 think there is a chance that if the commissioners had your 

12 current plan in front of them they might come out with a 

13 different result? 

14 MR. SCHWED: We don't know. The FTC, frankly, has 

15 gone radio silent on us. We had originally proposed this as 

16 a settlement and never got an answer, so we don't know what 

1 7 the Commission would do. Frankly, I wish we could explore 

18 that, but the problem we have here is we have a mid-January 

19 drop-dead date. This transaction will terminate, and our 

20 ability to purchase the company will end by mid-January. So
 

21 we don't have the luxury of time to explore that question. 

22 THE COURT: Okay. Let me hear from -­

23 MR. SCHWED: If I may just add one more point? 

24 THE COURT: Yes. 

25 MR. SCHWED: The arguments Mr. Hassi made are the 
24 

tJ IH 

1 exact same arguments that were made in Arch Coal, which was 

2 they r re trying to fashion their own remedy. They r re trying 

3 to take the job of the Commission by deciding which plants 

4 get sold. They can r t change the transaction. And this 

5 Court said, "I'm not going to get involved in a fiction. 

6 I'm not going to hear a case about a transaction that is no 

7 longer the transaction that r s being proposed." 

8 Thank you.
 

9 THE COURT: Thank you. Wait, that's what the
 

10 Court said in Arch Coal? 

11 MR. SCHWED: In Arch Coal, yes, Your Honor.
 

12 THE COURT: Okay. 

13 MR. SCHWED: Thank you, Your Honor. 

14 THE COURT: Let me hear back from Mr. Hassi. 

15 MR. HASSI: Your Honor, I will start with Arch 

16 Coal and some of the differences. 

17 The difference here for Arch Coal is, the Arch
 

18 Coal court found it was integral to the deal, and it was
 

19 done in good faith.
 

20 And the Libby court -- it cited the Libby court.
 

21 In its footnote 27 of the Libby court opinion, they talk
 

22 about the good faith of the parties in an effort to resolve 

23 the FTC's concerns.
 

24 Dropping these facts on us the night before the 

25 CEO's deposition, which is already being taken after the 
~~~ 

25 

1 close of discovery, that's not in good faith, Your Honor. 

2 This isn't a good-faith effort to resolve this. 

3 In terms of the questions that the commissioners 

4 would have, if -- our website has a whole section on 

5 divestitures and what a party has to do to try and satisfy 

6 the Commission on divestitures, and one of the main issues 

7 is, who is the buyer? How are they funded? Can they make 

8 this a go? 

, 

-i 9 And then we talked to customers, and I will tell I 

10 you -- this was announced on Friday to the public -- we've 

11 been hearing from customers already. They don't like this. 

12 So we haven't had a chance to vet that, and the Commission 

13 hasn't had a chance to vet that. 

14 THE COURT: All right. I'm going to ask Mr. 

15 Schwed the same question. I will probably get a different 

16 answer, but I am concerned. 

17 Mr. Hassi, do you believe there is still some 

18 benefit to be gained from -- let's say I exclude everything 

19 about the sale to -- the four different sales or the 

20 divestiture, whatever you would call it -- I exclude that 

21 and I don't hear any testimony on that, which is quite 

22 likely what I'm going to do because it doesn't sound like 

23 you are prepared to respond to it. If I did that, is there 

24 anything to be gained from going ahead with the rest of the 

25 hearing and getting a ruling from me on the market, the 
i- 11...( ir
 

26 

1 geography, the whole thing?
 

2 MR. HASSI: There absolutely is, Your Honor.
 

3 THE COURT: Okay.
 

4 MR. HASSI: We think the product market issue is
 

5 an important one here. We don't think it's a close call,
 

6 but we do think if Your Honor takes a hard look at that, it
 

7 would be helpful to the parties.
 

8 THE COURT: Okay. 

9 What you think, Mr. Schwed? 

10 MR. SCHWED: Your Honor, as a-­

11 THE COURT: You had better come to the podium. 

12 MR. SCHWED: Your Honor, we certainly don't want 

13 to put off the hearing because, as I've mentioned, we're 

14 basically running up against the clock. From the date of 

15 the hearing until the date that this deal must close, we 

16 have roughly three months, a little less from the last day 

1 7 of hearings.
 

18 We recognize that the parties are going to spend a 

19 week or so -- a little bit more -- submitting briefs, and
 

20 then Your Honor has to decide weighty issues and will 

21 take -- you know, will need some time in order to do that.
 

22 These are not things that can be decided on the spot 

23 overnight. So we recognize that all of this is going to 

24 take time, and, then, potentially, whichever side loses is 

25 going to try to take an emergency appeal up to the D. C.
 
tJLii 

27 

1 Circuit. So we don't have the luxury of putting this off. 

2 I guess, in an ideal world, we would say let's delay this 

3 hearing, get some more time. But our view is that whatever 

4 needs to be done -- so the first answer is, yes, we need to 

5 have a hearing. And then so the question is, what can be 

6 covered in that hearing. Our view is that, whatever needs 

7 to be done in order to have the FTC probe this deal can be 

8 done in three weeks. 

9 All of this in the CCC case, which is the most 

10 recent case that was before this court, the entire discovery 

11 record took about three weeks, and that was over Christmas. 

12 So our view is, there's a minimal amount that needs to be 

13 done in order to vet this process. They are in contact with 

14 the customers. They can talk to the customers, and there's 

15 no reason that this can't be fully teed up by this -- by the 

16 start of the hearing. 

17 THE COURT: Let me talk to the side that's going 

18 to be doing the discovery. 

19 Speaking with all due speed and don't tell me 

20 it's going to take six months because if you tell me it is 

21 going to take six months, I won't believe you -- how long 

22 would you need to do the discovery on the four transactions 

23 they are talking about? 

24 MR. HASSI: Your Honor, I'm not sure I can answer 

25 that question and the reason is, is because a very important 
t" 11-1 II
 

28 

1 part of what the FTC wants to consider here -- and, again,
 

2 it's public, it's on our website -- is the identity of the
 

3 buyer. Who is going to run these plants? How are these
 

4 four plants going to fit together? Who is going to manage
 

5 them? How well-capitalized are they? 

6 THE COURT: Well, they have binding contracts 

7 ready to go, so they could tell you today. Probably as soon 

8 as I get out of here, they'll tell you who the buyers are. 

9 Right? Am I right, Mr. Schwed? 

10 MR. SCHWED: No. We are still negotiating with 

11 buyers. We have identified to the FTC who will be managing 

12 the plants. Since this is an open courtroom, I won't say 

13 who it is, but we have identified to the FTC the type of 

14 buyer, that it is somebody who has got industrial experience 

15 and exactly who will be running the plants. 

16 THE COURT: No, no. But you haven't told them who 

17 the buyers are? Please get to the microphone. 

18 MR. SCHWED: Yes, Your Honor. We're still 

19 negotiating with two to three buyers. 

20 THE COURT: Then they can't do their discovery in 

21 three weeks. You don't even have a definitive name for them 

22 to do discovery from or ask about. That's not reasonable,
 

23 is it? 

24 MR. SCHWED: Well, Your Honor, I think if you look 

25 at what discovery needs to be done, I think, frankly, the 
29 

tJ I~I II 

1 identity of the buyer is a bit of a red herring here in the 

2 sense that the key question is: Do the divestiture of these
 

3 plants satisfy their concerns about the power in the market
 

4 that they are claiming that Ardagh will have? So we are now
 

5 saying that Ardagh is going to have a new company that has
 

6 less beer business than VNA had before. It's going to have
 

7 a capacity in spirits that -- or it's giving away enough
 

8 capacity that they basically will be a competitor that
 

9 replaces Ardagh in the market.
 

10 THE COURT: Let me tell you right now, I do not 

11 believe that that can be thoroughly investigated in the
 

12 three weeks between now and my hearing. I just don't see
 

13 it. I just don't think the negotiations are far enough
 

14 along the line, and I don't think it's fair to the other 

15 side to ask them to do that. 

16 So given what I have heard today, I would not be 

1 7 considering that factor in my decision. I just do not
 

18 believe that you would both be in a position to present to 

19 me -- I don't think 
 the FTC would be in a position in three
 

20 weeks to present their side or their opinion about whether
 

21 this really is an adequate cure to their concern about
 

22 competition. 

23 My sole question at this point, given that I don't 

24 think I am going into -- I can't go into that. I think it 

25 would be premature and precipitous for me to even look at 
30 

2 

tJLrR rr 

1 that.
 

My question to both of you is -- look, I would
 

I 3 love to have the hearing, set the days aside, sounds very
 

4 interesting. I've got nothing else to do those three days.
 

5 I'm all yours. On the other hand, as I sort of led into
 

6 this, if this is going possibly to be a remedy that would
 

7 resolve the situation, why am I going through all this about
 

8 market, and geography, and all of this if, indeed, the
 

9 divestiture would solve the problem of the competitive
 

10 concerns that the FTC has? As I say, it is an interesting 

11 question, and I'm sure I'll enjoy good briefing, but, you 

12 know, I do have other cases that I probably could be 

13 attending to in those three days. 

14 I'm just concerned that we-'-re-going-tu-gothrough -I 

15 all of this, you'll get a ruling from me, and then you are
 

16 going to have to go through this anyway. You are going to 

1 7 have to go through it. I mean, you already have a plan that
 

18 you think, at least based on what I have heard today, would
 

19 satisfy there concerns. Why not give them a crack at taking
 

20 a look at it? 

21 MR. SCHWED: Well, Your Honor, we would be more
 

22 than happy to have the Commission agree that this satisfies 

23 their concerns and to make this all go away. Obviously,
 

24 we're willing to do that deal. We've come out publicly and
 

25 said it. We've said it to this Court.
 
31 

tJ'~~
 

1 The problem is that it's been a good two weeks
 

2 since we proposed those four plants to the FTC staff, and we
 

3 have not heard one way or the other whether they view those
 

4 four plants as being sufficient. And so we just can't,
 

5 frankly -- in my client's interest, I can't just sit back 

6 and say we're going to wait forever for the FTC to decide
 

7 whether this is enough because their time is going to come
 

8 and go. 

9 THE COURT: Okay. 

10 Mr. Hassi, let me ask you this. 

11 MR. HASSI: Yes, Your Honor. 

12 THE COURT: I'm not buying into the fact that two 

13 weeks is enough for you to give a decision about whether the 

14 FTC is satisfied or not satisfied. I think I can tell what 

15 your answer is going to be, which is that you need more 

16 information, you need to do some discovery, and you need to 

17 know more facts surrounding the divestiture plans. 

18 What do you need and how long would it take you to
 

19 come up with a list of what you need for them to give it to 

20 you? I mean, you can't just sit there and say, no, we're 

21 going to go ahead with this hearing because we just heard 

22 about this yesterday. I understand your frustration and
 

23 your concern, but let's move on from the fact that you just 

24 heard about it. I've already told you I'm not going to go
 

25 into this at the hearing, so you're safe on that point,
 
32 

IHI II . 

1 okay? 

2 MR. HASSI: Yes, Your Honor. 

3 THE COURT: So now you can just sit back and say,
 

4 "Okay, how long, what do I need, and how will that timing
 

5 mesh with the hearing?"
 

6 I have already said I don't think you can do
 

7 everything in three weeks. I don't think you can. But if
 

8 you made a list and they gave you -- I mean, they really
 

9 want to accelerate this, and so it's in their interest to 

10 give accelerated discovery. If you give them a list of what 

11 you need, I think what Mr. Schwed is saying is that he will 

12 do everything to get you the information that you need. 

13 Now, that doesn't mean you can look at the information, get 

14 the commissioners to look at it, do the whole thing. But at 

15 least you could get the information. 

16 Can you guys work on that in the three weeks and 

1 7 gi ve me an idea of timing and how it would mesh with the
 

18 hearing? I mean, if you're ~Alking about a timing where 

19 another week or two would make a difference, that is 

20 important for me to know because then we could have a
 

21 hearing on the whole thing, or maybe have no hearing at all 

22 is what I am saying.
 

23 I'm reluctant to put the hearing over because I 

24 have a tight schedule and these are your three days. On the
 

25 other hand, I'm also reluctant to have a hearing -- I 
33 

t 11-1 II
 

1 suppose I could just have the hearing, listen to everything,
 

2 not give you a decision, and then you can tell me that it
 

3 was a nice three days but we've worked it out. I don't mind
 

4 that, but if putting the hearing over, if it were at all
 

5 possible -- I'LL look at my calendar. What do you think?
 

6 How much more time would you need? I understand three weeks
 

7 isn't enough, and I understand that two weeks wasn't enough,
 

8 but what are we looking at?
 

9 MR. HASSI: I think the problem is the starting
 

10 date, and that is, we need to start from a definitive 

11 agreement, an identified buyer and a contract with that 

12 buyer. There are a ton of questions. You know, I'm tempted
 

13 to bring Dan Ducore up. He's the head of our Compliance
 

14 Section, and he's the one -- he and his team vet these 

15 things. So if you want to have an extended discussion about
 

16 that, I can ask Dan to come up.
 

1 7 But there are a lot of unanswered questions here
 

18 that can't be answered until we've got a contract. I mean,
 

19 the iqea that they've got somebody identified to manage the
 

20 plants but they don't have a buyer yet, what makes anybody
 

21 think that that buyer is going to accept that manager?
 

22 Those questions have to be answered first, and then we can 

23 look at the discovery. Whether it is a matter of weeks or
 

24 months, I don't know, but we need to have a definitive 

25 agreement to work from. We need to know what it is we're 
t-Ti: rr 

34 

1 shooting at. 

2 THE COURT: Mr. Schwed, what are we dealing with 

3 in terms of a definitive agreement here? 

4 MR. SCHWED: We are working diligently to 

5 negotiate. I mean, let me just make this one point. The 

6 management team, or the lead manager -- it's not somebody 

7 we're imposing on the buyer, it's somebody who the buyer 

8 wants to work with and that person wants to work with the
 

9 buyer. This isn't just some fantasy. 

10 But my understanding is that the FTC fashions 

11 consent decrees all the time where there is -- and 

12 negotiates consent decrees without there being a definitive 

13 agreement. They don't go up to somebody who is considering 

14 divesting some plants and say, "I'm not even going to
 

15 consider your divestiture proposal until you have a 

16 definitive agreement," and they're supposed to sign a
 

17 definitive agreement and then they hand it over, and then
 

18 FTC says, "No, this 
 isn't a good plan. I'd rather have it 

19 be different."
 

20 They are able to when they want to, when it's in
 

21 their interest, they're able to figure out what is good and
 

22 bad for competition without a definitive agreement. When
 

23 they don~t want to, all of a sudden they need a definitive 

24 agreement. So I think it's a little bit of an unfair 

25 standard to say they can't even start thinking about this 
I- l-r fT 

35 

1 without a definitive agreement. They know what the plants
 

2 are. They can make an assumption that it will be sold to a
 

3 well-capitalized buyer who is reputable. And I think the
 

4 the analysis doesn i t really change based on which
 

5 well-capitalized, reputable person, who is not in the
 

6 industry, has no competitive concerns -- it i S not
 

7 somebody -- it i S somebody with industrial experience, but
 

8 not somebody who, you know, is in the rigid packaging
 

9 industry, owns a can company or anything like that. So they
 

10 can assess this -­

11 THE COURT: Well, you have already disclosed a lot 

12 about the buyer. You may not have given the name, but you 

13 have already given them a lot to work with.
 

14 What I am concerned about is -- I will tell you
 

15 what -- I mean, obviously, you guys are going back and forth
 

16 in what is turning out to be a discovery dispute. I 

17 recognize one when I see it. I think the most I can do at 

18 this point is say we will go ahead with the hearing as
 

19 scheduled. It will concern the issues that I understood it 

20 to concern before I came out here today, i. e., we will not
 

21 be discussing any divestiture of plants that one side sort 

22 of knows about and the other side doesn 't. It i S not going 

23 to be fruitful for me to hear any testimony on that.
 

24 What I would urge you to do, and I'm not sure my 

25 sitting up here and going through this any further today
 
36 

i- ii Tr
 

1 will be a help to you, but what I would urge you to do -- if
 

2 necessary, I would -- if there were a way I could order you
 

3 to do it, I would -- is to sit down and talk about this in
 

4 the coming three weeks. I think the FTC needs to express a
 

5 willingness to examine the plans. I think the defendants
 

6 need an opportunity to put those plans in as much detail as
 

7 they can so that they are presenting something -- I use the
 

8 word "definitive" in a sort of sliding scale here -- but 

9 enough for them to be able to do some evaluating of what
 

10 you're suggesting. I think it's very important that you
 

11 discuss this because you are going to be spending three
 

12 days, and you may get a ruling that turns out to be an 

13 advisory opinion because, in fact, this is all going to go 

14 away if you like the divestiture plans. 

15 I'm going to leave the hearing as scheduled. If 

16 the FTC hears enough to make them think that a week or two
 

1 7 would help, then you should call my chambers and see what
 

18 the alternatives are. 

19 1'm trying to be realistic in the fact that you 

20 have witnesses scheduled, many of whom, you know, you have
 

21 prepared for these three days. I don't know how flexible 

22 these people are. I realized there is an end line to this 

23 whole thing, but, frankly, it would do you more good than
 

24 harm if the end result were that the whole thing went away
 

25 and the divestiture plan was approved, and then the January
 
t"UOLII 

37 

1 date would be fine. But right now I am going to leave the
 

2 hearing date as scheduled, but I made a ruling on what we
 

3 are going to hear at the hearing date, and I really urge
 

4 counsel to -- I mean, I don't know if I need to set a date
 

5 for you both -- both -- everybody else here -- to meet. I
 

6 don't think I need to do that. You all know what is at
 

7 stake here. I just urge you to get together, talk about the
 

8 new plan.
 

9 Forget about the fact that it was sprung on you at
 

10 the last moment, Mr. Hassi. Forget -- I mean, I realize to
 

11 a litigator that's a bad thing, but right now you've got
 

12 your hearing date and you've got your limited ruling. Now 

13 is the time to switch gears and see if this thing -- if 

14 there is a chance this can go away.
 

15 If you are working something out, the first call 

16 you need to make is to my chambers so that we don't spend
 

1 7 time on this, okay? But otherwise, I will see you here in a
 

18 month, or three weeks, or whatever we've got. 

19 Now, housekeeping.
 

20 MR. HASSI: Housekeeping, and, Your Honor, I 

21 didn't mean to suggest that -- I mean, this was sprung on us
 

22 at the last minute. We have had constructive discussions
 

23 and we will continue to do that. 

24 THE COURT: Okay. 

25 MR. HASSI: The way this was approached, we think, 
1-1 11-1 II 

38 

1 was the wrong way to approach it.
 

2 THE COURT: Okay.
 

3 MR. HASSI: But housekeeping issues. The first
 

4 question I had, Your Honor mentioned concerns before you
 

5 came out here this morning, that we have a limited amount of
 

6 time before Your Honor. If there are specific issues you
 

7 would like us to address I mean, it's true we've lined up 

8 certain witnesses to come, and we have our own conception of
 

9 what we think is important for you to hear. If there are
 

10 specific questions you want answered, or things you want
 

11 addressed, we would be happy to try and address those in the 

12 limited time we have before Your Honor.
 

13 THE COURT: I think you both hit on the issue s 

14 that are going to be the important ones, and that's market,
 

15 the production market and that geographic market, though I
 

16 think one is probably of more concern than the other. I 

17 think it is what -- what effect aluminum cans have on this,
 

18 and plastic. 

19 MR. HASSI: We thought that might be one of your
 

20 questions, your Honor. 

21 In terms of the hearing dates themselves, do you 

22 want openings and closings, or do you want to jump right in 

23 wi th testimony? We didn't know if you had a preference. We 

24 think it would be helpful, before putting a witness on the
 

25 stand, to give you sort of an overview of what we're going
 
i-IIKI II 

39 

1 to try to present over the two-and-a-half days.
 

2 THE COURT: I think it be would very helpful, but 

3 how much time do you need? Half-hour each, would that do 

4 it? 

5 MR. HASSI: Could we say 45 minutes? 

6 THE COURT: Forty-fi ve minutes. Well, let me ask 

7 you, could you do that in writing, or do you think it would 

8 be more helpful to -- would you be using demonstratives?
 

9 MR. HASSI: We would be using demonstratives, and 

10 I think it would be more helpful to walk through some
 

11 exhibits. 

12 THE COURT: Okay, 45 minutes. 

13 MR. HASSI : Forty-five minutes is fine. Thank 

14 you, Your Honor. 

15 In terms of closing, sometimes those are done at 

16 the end of the hearing dates, and sometimes they are done
 

1 7 after the findings of fact. Our end, do you have a -­

18 THE COURT: Why don't we wait and I'll let you 

19 know. Why don't we wait. First of all, let's see the 

20 timing; and, second of all, it may be useful after I get the 

21 findings of fact to have the closings. 

22 MR. HASSI: Okay.
 

23 THE COURT: All right.
 

24 MR. HASSI: One of the questions we had was the
 

25 courtroom technology. I assume we will be in this courtroom 
40 

i- IHI II 

1 and there i s somebody that we can liaise with in your absence
 

2 to-­

3 THE COURT: You i re looking at her right now. 

4 MR. HASSI: Okay. We i 11 be in touch with her. 

5 THE COURT: She will help you, and both of you 

6 should make an appointment to come see her and arrange
 

7 things.
 

8 MR. HASSI: We will do that, Your Honor.
 

9 Confidentiality issues, there -- because this is 

10 dealing with on-going business, customers, contracts, 

11 prices -- there are a lot -- we will try to do as much as we
 

12 can to sort of sanitize the presentation so that we're not 

13 discussing that kind of thing, but I'm not certain that we 

14 can remove all of it. Does Your Honor have a preference in
 

15 terms of the way you handle information that parties, and in 

16 particular third parties witnesses, care about maintaining
 

1 7 confidentiali ty over? 

18 THE COURT: Well, testimony is a little more 

19 difficult. I don't see a problem with exhibits because you 

20 can use sanitized exhibits here, and then have a separate 

21 set that you give to either the clerk on my law clerk that 

22 you want us to see in chambers. Testimony, we i 11 have to
 

23 play it as it goes. We'll see how we can handle that.
 

24 MR. HASSI: Yes, Your Honor.
 

25 THE COURT: I don't know how much testimony there
 
til-l II
 

41 

1 is going to be that really will be touching on this. I
 

2 can't tell yet, but you will let me know and we will work it
 

3 out. 

4 MR. HASSI: Okay, Your Honor. Then, finally, if 

5 Your Honor has a preference in terms of filings, things on 

6 paper, things on three-ring binders, that sort of thing. If 

7 Your Honor wants to let us know, we'll -­

8 THE COURT: Three-ring binders is my preference
 

9 because I still like paper. 

10 MR. HASSI: I do, too, Your Honor. 

11 THE COURT: And if you could give us a set each, 

12 you know, plaintiff's set and defendant's set, and I don't 

13 know if the defendants are going to have a joint set. 

14 I would assume you will have one set, right? 

15 MR. SCHWED: Yes, Your Honor. 

16 THE COURT: That really wil1 keep things a lot 

17 more simple. So let's just call it the defendants' set, and 

18 just number yours consecutively, and plaintiff's set. I
 

19 think that's probably the easiest way. Just have them for
 

20 me and I can flip through them. Or if they're going to be 

21 on here, it may be easier. 

22 MR. HASSI: We'll try to do a lot of it 

23 electronically, but if -- I was also thinking of exhibits to 

24 the brief. I know we provided a three-ring binder, but that 

25 was -- we had asked Judge Collyer what she wanted, and I 
11-1 II i 

42 

1 just want to make sure that we are providing what is most
 

2 useful to you.
 

3 THE COURT: Okay.
 

4 MR. HASSI: Those are all of the questions I had,
 

5 your Honor. Unless you have anything else
 

6 THE COURT: Did you have any housekeeping matters?
 

7 MR. SCHWED: Only one quick thing, Your Honor.
 

8 I'm just trying to get a so we can plan out our
 

9 witnesses, just how long is a trial day, just in terms of 

10 what time you start, what time you end? 

11 THE COURT: I knew you were going to ask me that.
 

12 I'm trying to -- I'm looking at the person on whom it is the
 

13 hardest, which is our court reporter. 

14 I am perfectly willing to start out -- well, what 

15 time are we starting on Thursday? Is it 2: OO?
 

16 THE DEPUTY CLERK: Yes, Your Honor.
 

1 7 THE COURT: So let's go 2: 00 to 5: 00 on Thursday.
 

18 Let's start with 9:00 to 4:30 on Friday. Monday would be, I
 

19 guess, 9:00 to 4:30, too. I would like to take an hour and
 

20 a-half for lunch, but that's not really necessary. You 

21 know, I will be asking you all how we're doing. We can cut 

22 the lunch hour to an hour. I'm just thinking back to my 

23 trial days. It's easy for me to set up something like, you
 

24 know, 9: 00 to 5: 00 and an hour for lunch and, you know, 15 

25 minutes. You guys are the ones who have to go back and do
 
1

2

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t IH.I II 

43 

some work in the evenings, and maybe even need a lunch hour 

to talk -- a longer lunch hour to talk to your witnesses and 

things. So you tell me, would you prefer an hour and a-half 

for lunch? 

MR. SCHWED: Personally, I think, given that we 

are on a very compressed schedule, I would suggest that we 

assume an hour, but we can see how the time is going as we 

-¡ 

i 

progress. 

THE COURT: Okay. 

MR. HASSI: I agree. 

MR. SCHWED: But this is very helpful, at least, 

just to give us -- as Your Honor mentioned, this can be 

flexible, but this at least gives us some guideposts for how 

much time we have. 

THE COURT: Yes. I mean, we can stretch from 4: 30 

to 5: 00, and we can -- but let's start out thinking that 

we'll end at 4:30. We'll start at 9:00 and we'll have an 

hour for lunch. 

Does that fit? I mean, do you think you can fit 

within that? But the first day we will go from 2:00 to 5:00 

because we're starting late, okay? 

MR. HASSI: Yes, Your Honor. 

THE COURT: Okay. See you back here unless, of 

25 

course, you work it all out. Just don't work it out after I 

give you a decision and go through all that trouble. Work 
44 

1 it out sometime in between, okay? 

2 MR. SCHWED: Thank you, Your Honor. 

3 MR. HASSI: Thank you, Your Honor. . i 

4 (Whereupon, the proceedings in the above-entitled 

5 matter were concluded at 10:59 a.m.) 

6 

7 

8 CERTIFICATE OF REPORTER 

9 I certify that the foregoing is a correct 

10 transcript from the record of proceedings in the 

11 above-entitled matter. 

12 

13 

14 Theresa M. Sorensen, CVR-CM 

15 Official Court Reporter 

16 

17 

18 

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20 

21 

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25 
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way (9) 5/1217/320/2331133612 37/25 3S/I words (4) 17/122013 221S 23/6 

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weighty (1) 26120 1612223124 24111 27/4 2811S 31111 321 

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whatsoever (1) 14112 your (88) 

when (12) 1011 iin 1414 14/5 14n 15/17 your (2) 30/5 4111S

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where (7) 4119 SiS 12112 1615 19117 32118

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17/2317/23 19n 29120 311 3in 3113
 

33/23 

which (14) 6/24 7/9 1511 19/10 191120n 

24124/32412525/2127/93111535/442113 

whichever (1) 26124
 
PUBLIC
 

EXHIBIT 2
 
PUBLIC 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERA TRAE COMMSSION
 

OFFICE OF ADMIISTRATIVE 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. 

) 

) 

) 

) 

RESPONDENTS' FINAL WITNESS LIST 

This list designates the witnesses whom Ardagh Group S.A. ("Ardagh"), Compagnie de 

Saint-Gobain, and Saint-Gobain Containers, Inc. (collectively, the "Respondents") currently 

contemplate as potential witnesses to testify in the above-captioned matter, either orally as live 

witnesses or by deposition andfor investigational hearing transcript or declaration, based on the 

information available on the undersigned date. Subject to the limitations in the Scheduling Order 

entered in this matter, Respondents reserve the right: 

A. To present testimony, orally by live witness or by deposition transcript or 

declaration, from any person who has been or may be identified by Complaint 

Counsel as a potential witness in this matter. 

B. To call the custodian of records of any non-Part from whom documents or
 

records have been obtained - including but not limited to those non-Parties listed 

below - to the extent necessary to authenticate documents in the event a 

stipulation cannot be reached concerning the authentication of 
 non-Part 

documents. 

C. Not to call at the hearing any of the witnesses listed below. 

D. To call any of 
 these or other witnesses for rebuttal testimony. 

Subject to these reservations of 
 rights, Respondents' final witness list is as follows: 
PUBLIC
 

PARTY WITNESS LIST 

1. Reiner Brand - Sales Director for European Operations of Ardagh. Mr. Brand is
 

involved in negotiating sales contracts with glass bottle customers. 

2. Paul Coulson - Chairman of 
 the Board of Ardagh. Mr. Coulson is responsible for 

overseeing Ardagh's management. 

3. James Fredlake - President of Ardagh Glass Americas. Until approximately
 

November 2013, Mr. Fredlake was responsible for managing Ardagh Glass 

Americas. 

4. Robert Ganter - General Manager and Senior Vice President of the Beer Sector of
 

Activity for Saint-Gobain Containers, Inc. Mr. Ganter is responsible for beer 

container manufacturing and sales at Saint-Gobain Containers, Inc. 

5. Joseph Grewe - President and Chief Executive Offcer of Saint-Gobain
 

Containers, Inc. Mr. Grewe is responsible for managing Saint-Gobain Containers, 

Inc. 

6. Michael Leahy - Operational Excellence Director of Ardagh. Mr. Leahy is
 

responsible for overseeing Ardagh's program to improve operational metrics. 

7. Jarrell A. Reeves - Vice President of Sales of Saint-Gobain Containers, Inc.
 

Mr. Reeves is responsible for food, beverage, and spirits sales at Saint-Gobain 

Containers, Inc. 

8. 1. Steven Rhea - Senior Vice President, Strategic Development, of Saint-Gobain
 

Containers, Inc. Mr. Rhea is responsible for purchasing, distribution, marketing, 

and corporate quality at Saint-Gobain Containers, Inc. 

9. John Riordan - Finance Director of Ardagh. Mr. Riordan is responsible for the
 

financial management of Ardagh. 

10. Niall Wall - Chief 
 Executive Officer of Ardagh. Mr. Wall is responsible for 

managing Ardagh. 

11. Kenneth Wilkes - Chief 
 Financial Officer of Ardagh Glass Americas. Until 

approximately November 2013, Mr. Wilkes was responsible for the financial 

management of Ardagh Glass Americas. 

2
 
PUBLIC
 

EXPERT WITNESS LIST 

12. Dr. Chetan Sanghvi - Senior Vice President at NERA Economic Consulting.
 

Respondents expect that Dr. Sanghvi wil testify about the relevant markets, 

market structure, competitive effects, barriers to entry, and efficiencies of the 

Proposed Transaction. 

13. Michael Kallenberger - consultant with First Key Consulting Inc., a brewery 

consultancy. Respondents expect that Mr. Kallenberger wil testify about trends 

involving glass and non-glass beer containers. 

14. Dr. Raymond Bourque - President ofRA Y-PAK, Inc., a packaging innovation 

and technology consultancy. Respondents expect that Dr. Bourque wil testify 

about trends involving glass and non-glass spirits containers. 

15. Robert Wallace - Managing Parter of 
 Wallace Church Inc., a global brand 

identity strategy and package design consultancy. Respondents expect that 

Mr. Wallace wil testify about trends involving glass and non-glass beer and 

spiiits containers. 

THIRD PARTY WITNESS LIST 

16. 21st Amendment Brewery ("21st Amendment") - Ryan Frank, Brewery
 

Production Manager of 21st Amendment, and/or a representative of 21st 

Amendment knowledgeable regarding 21st Amendment's strategy and practices 

related to beer containers. 

17. Abita Brewing Company ("Abita") - David Blossman, President of Abita, andfor 

a representative of Abita knowledgeable regarding Abita's strategy and practices 

related to beer containers. 

18. Amcor Rigid Plastics ("Amcor") - Frederick Piercy Jr., Business Director at 

Amcor, andfor a representative of Amcor knowledgeable regarding Amcor's 

strategy and practices related to beer and spirits containers. 

" 

19. Anchor Hocking Company ("Anchor Hocking") - Umberto Filice, Senior Vice 

President of Anchor Hocking, andfor a representative of Anchor Hocking 

knowledgeable regarding Anchor Hocking's strategy and practices related to 

spirits containers. 

20. Anheuser-Busch InBev North America ("ABI") - Lee Keathley, Vice President of 

Procurement at ABI, andfor a representative of ABI knowledgeable regarding 

ABI's strategy and practices related to beer containers. 

21. August Schell Brewing Company ("August Schell") - Theadore Marti, President 

of August Schell, andfor a representative of August Schell knowledgeable 

regarding August Schell's strategy and practices related to beer containers. 

3 
PUBLIC 

22. Ball Corporation ("Ball") - Bruce Doellng, Director of Sales North America,
 

andfor a representative of 
 Ball knowledgeable regarding Ball's strategy and 

practices related to beer containers. 

23. Beam Inc. ("Beam") - Kenneth Edwards, Vice President and Chief Procurement 

Officer, aridfor a representative of 
 Beam knowledgeable regarding Beam's 

strategy and practices related to spirits containers. 

24. Big Sky Brewing Company ("Big Sky") - Kevin Keeter, Purchasing Manager for 

Big Sky, andfor a representative of 
 Big Sky knowledgeable regarding Big Sky's 

strategy and practices related to beer containers. 

25. The Boston Beer Company ("Boston Beer") - Judy Embree, Senior Director of 

Procurement at Boston Beer, Corey Lewis, Director of Strategy, Research, and 

Business Support at Boston Beer, andfor a representative of Boston Beer 

knowledgeable regarding Boston Beer's strategy and practices related to beer 

containers. 

26. Boulevard Brewing Company ("Boulevard") - Jeffery Krm, Chief 
 Financial 

Officer at Boulevard, andfor a representative of 
 Boulevard knowledgeable 

regarding Boulevard's strategy and practices related to beer containers. 

27. Brown-Forman Corporation ("Brown-Forman") - Tim NaIl, Vice President at 

Brown-Forman, andfor a representative of 
 Brown-Forman knowledgeable 

regarding Brown-Forman's strategy and practices related to spirits containers. 

28. Bruni Glass ("Bruni") - Ray Kor, Chief 
 Financial Officer, andfor a representative 

of Bruni knowledgeable regarding Bruni's strategy and practices related to spirits 

containers. 

29. Cigar City Brewing ("Cigar City") - Joey Redner, Founder and Chief 
 Executive 

Officer of Cigar City, andfor a representative of Cigar City knowledgeable 

regarding Cigar City's strategy and practices related to beer containers. 

30. Constellation Brands, Inc. ("Constellation") - Peter Lijewski, Vice President of
 

Procurement at Constellation, andfor a representative of Constellation 

knowledgeable regarding Constellation's strategy and practices related to spirits 

containers. 

31. Diageo North America, Inc. ("Diageo") - Rick Thielen, Senior Vice President of 

Procurement, andfor a representative ofDiageo knowledgeable regarding 

Diageo's strategy and practices related to spirits containers. 

32. Founders Brewing Company ("Founders") - Brad Stevenson, Vice President of 

Operations at Founders, andfor a representative of 
 Founders knowledgeable 

regarding Founders's strategy and practices related to beer containers. 

4
 
PUBLIC 

33.	 F.X. Matt Brewing Company ("Matt Brewing") - Fred Matt, President of Matt 

Brewing, andfor a representative of 
 Matt Brewing knowledgeable regarding Matt 

Brewing's strategy and practices related to beer containers. 

34.	 Gamer Packaging, Inc. ("Gamer") - Kenneth Gamer, President of Gamer, and/or 

a representative of Gamer knowledgeable regarding Gamer's strategy and 

practices relating to beer and spirits containers. 

35.	 The Gambrinus Company ("Gambrinus") - John Horan, Director of Tax and 

Assistant Treasurer at Gambrinus, and/or a representative of Gambrinus 

knowledgeable regarding Gambrinus's strategy and practices related to beer 

containers. 

36.	 Glass Packaging Institute - Lynn Bragg, President of the Glass Packaging 

Institute regarding historical performance and trends in the glass packaging 

industr and the use, or non-use, of glass for food and beverage containers.
 

37.	 Harpoon Brewery ("Harpoon") - Daniel Kenary, President of Harpoon, Warren 

Dibble, Vice President and Chief Financial Officer of 
 Harpoon, andfor a 

representative of 
 Harpoon knowledgeable regarding Harpoon's strategy and 

practices related to beer containers. 

38.	 Heaven Hil Distileries ("Heaven Hil") - Max Shapira, President of Heaven Hil, 

andfor a representative of 
 Heaven Hil knowledgeable regarding Heaven Hill's 

strategy and practices related to spirits containers. 

39.	 The Lagunitas Brewing Company ("Lagunitas") - Leon Sharyon, Chief Financial 

Officer of Lagunitas, andfor a representative of Lagunitas knowledgeable 

regarding Lagunitas's strategy and practices related to beer containers. . 

40.	 MilerCoors, LLC ("MilerCoors") - Jim Sheehy, Vice President of Procurement 

at MilerCoors, David Kroll, Vice President of Innovation and Insights at 

MilerCoors, andfor a representative of 
 MilerCoors knowledgeable regarding 

MilerCoors's strategy and practices related to beer containers. 

41.	 Moosehead Breweries Limited ("Moosehead") - Andrew Oland, President of 

Moosehead, andfor a representative of Moose head knowledgeable regarding 

Moosehead's strategy and practices related to beer containers. 

42.	 New Belgium Brewing Company ("New Belgium") - David Larsen, Packaging 

and Materials Buyer at New Belgium, andfor a representative of 
 New Belgium 

knowledgeable regarding New Belgium's strategy and practices related to beer 

containers. 

43.	 Oskar Blues Brewing Company ("Oskar Blues") - Daniel O'Connor, Chief 

Financial Offcer ofOskar Blues, and/or a representative of Oskar Blues 

knowledgeable regarding Oskar Blues' strategy and practices related to beer 

containers. 

I, 

5 

i 
PUBLIC 

44. Owens-Ilinois, Inc. ("Owens-Ilinois") - Anthony Caracciolo, Vice President of
 

Global Sales at Owens-Ilinois, and/or a representative of Owens-Ilinois 

knowledgeable regarding Owens-Ilinois's strategy and practices related to beer 

and spirits containers. 

45. Pernod Ricard ("Pernod") - Adam Gelles, Vice President of New Product 

Development and Purchasing at Pernod, and/or a representative ofPernod 

knowledgeable regarding Pernod's strategy and practices related to spirits 

containers. 

46. Representative(s) of the financial buyer of any divested assets knowledgeable 

regarding the financial buyer's business plan with respect to any divested assets. I 

i 

-I 

47. Sazerac Company ("Sazarec") - Philip Cissell, Vice President of 
 Purchasing at 

Sazerac, Steven Wyant, Vice President of Sales and Marketing at Sazerac, andfor 

a representative ofSazerac most knowledgeable regarding Sazerac's strategy and 

practices related to spirits containers. 

48. Sierra Nevada Brewing Company ("Sierra Nevada") - Albert Spinelli, Director of 

Operations at Sierra Nevada, andfor a representative of Sierra Nevada 

knowledgeable regarding Sierra Nevada's strategy and practices related to beer 

containers. 

49. United States Distiled Products ("U.S.D.P.") - Patricia Pelzer, Chief Financial 

Officer ofD.S.D.P., andfor a representative ofD.S.D.P. knowledgeable regarding 

U.S.D.P.'s strategy and practices related to spirits containers. 

50. Vitro Packaging, LLC ("Vitro") - John Shaddox, President ofFIC Exports, andfor
 

a representative of 
 Vitro knowledgeable regarding Vitro's strategy and practices 

related to beer and spirits containers. 

51. Whole Foods Markets, Inc. ("Whole Foods") - Doug Bell, Global Beverage 

Buyer at Whole Foods, and/or a representative of 
 Whole Foods knowledgeable 

regarding Whole Foods' strategy for buying, marketing, and sellng beer and 

spirits. 

52. Yuengling Beer Company ("Yuengling") - Dick Yuengling, Jr., President of 

Yuengling, David Casinell, Chief Operating Offcer of 
 Yuengling, and/or a 

representative of 
 Yuengling knowledgeable regarding Yuengling's strategy and 

practices related to beer containers. 

Dated: New York, New York 

November 18,2013 

SHEARN & STERLING LLP 

6
 
PUBLIC
 

~"" By: lsi Richard F. Schwed 

Richard F. Schwed 

Alan S. Goudiss 

Wayne Dale Collns 

Lisl Joanne Dunlop 

SHEARMAN & STERLING LLP 

599 Lexington Avenue 

New York, NY 10022 

Telephone: (212) 848 4000 

Facsimile: (212) 848 4173
 

agoudiss@shearman.com 

rschwed@shearman.com 

wcollns@shearman.com 

ldunlop@shearman.com 

i

i	 Heather L. Kafele I	 SHEARMN & STERLING LLP 

801 Pennsylvania Avenue N.W. 

Washington, DC 20004 

!	 Telephone: (202) 508 8000 

Facsimile: (202) 508 8100 

hkafele@shearman.com 

Counsel for Respondent Ardagh Group 

s.A. 

CRAVATH, SWAIN & MOORE LLP, 

by 

lsi Christine A. Varney 

Christine A. Varney 

Sandra C. Goldstein 

Y onatan Even 

Members of the Firm 

Attorney for Defendants 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

(212) 474-1000 

cvarney@cravath.com 

Counsel for Respondents Compagnie 

de Saint-Gobain and Saint-Gobain 

Containers, Inc. 

7
 
PUBLIC
 

I, Jason M. Swergold, an associate at Shearman & Sterling LLP, hereby certify that on 

November 18, 2013, I caused the foregoing document to be served by electronic mail on: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-11 0 

Washington, DC 20580 

I further certify that on November 18,2013, I caused the foregoing document to be 

served by electronic mail on the persons listed below. 

Edward D. Hassi
 

Catharine M. Moscatelli
 

Brendan 1. McNamara
 

Sebastian Lorigo
 

Victoria Lippincott 

Meredith Robinson
 

Devon Kelly
 

James Abell
 

Teresa Martin
 

Amanda Hamilton
 

U.S. Federal Trade Commission 

600 Pennsylvania Avenue, NW
 

Washington, DC 20580
 

ehassi@ftc.gov
 

cmoscatell@ftc.gov
 

bmcnamara@ftc.gov
 

slorgio@ftc.gov
 

vlippincott@ftc.gov
 

mrobinson@ftc.gov
 

dkelly2@ftc.gov
 

jabell@ftc.gov
 

tmartin@ftc.gov
 

ahamilton1@ftc.gov
 

Complaint Counsel 

November 18,2013 By: lsi Jason M Swergold 

Jason M. Swergold 

8 
PUBLIC
 

i 

"1 

-, 

i 

, 

EXHIBIT 3
 
PUBLIC
 

UNITED STATES OF AMRICA 

FEDERAL TRADE COMMSSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of ) 

) 

Ardagh Group S.A., 

a public limted liabilty company, and 

) 

) 

) DOCKET NO. 9356 

Sait-Gobain Contaners, Inc., 

a corporation, and 

) 

) 

) 

Compage de Saint-Gobain, 

a corporation, 

Respondents. 

) 

) 

) 

) 

) 

REVISED SCHEDULING ORDER 

In accordace with the September 30,2013 Commission Order and due to the paral
 

shutdown of the federal govenuent from October 1-16, 2013, the remaining dates in the August 

2, 2013 Scheduling Order ar hereby revised as follows:
 

October 29,2013 Deadline for Complaint Counsel toprovide expert witness reports.
 

November 1, 2013 Complaint Counsel provides to Respondents' Counsel its final
 

proposed Witness 
 and exhibit lists, including depositions or 

designated portons thereof, copies of all exhibits (except for 

demonstative, ilustrtive or surmar exhbits and expert related
 

exhìbits), Complaint Counsel's basis of admissibilty for each 

proposed exhìbit, and a brief sumar of the testiony of each 

witness. 

Complaint Counsel serves couresy copies on ALJ of its final 

proposed Witness and exhibit lists, its basis of admissibilty for 

each proposed exhibit, and a brief sumar of the testimony 
 of 

each Witness, including its expert Witnesses. 

November 15,2013 - Deadline for Respondents' Counsel to provide expert Witness 

reports. Respondents' expert report shall include (Without
 
November18~ 2013 ­

November 19,2013 ­

November25,2013 ­

November 26, 2013 ­

November 26,2013 ­

December 3, 2013 

December 4,2013
 

December 4,2013
 

December 5, 2013 

PUBLIC 

limitation) rebutt, if any, to Complaint Counsel's expert witness 

report(s). 

Respondents' Counsel provides to Complait Counsel its final 

proposed witness and exhibìt list, including depositions or 

designated portions thereof, copies of all exhibits (except for 

demonstrtive, ilustrative or sumar exhibits and expert related 

exhbits), Respondents' basis of adissibilty for each proposed
 

exhibit, and a brief sum of the testiony of each witness.
 

Respondents' Counel serves couresy copies on ALJ its fial 

proposed witness and exhibit lists, its basis of admissibilty for 

each proposed exmbit, and a briefsuiar of the testîmony of
 

each witness, including its expert witnesses. 

Pares that intend to offer confidential materials of an opposing 

pary or non-pary as evidence at 
 the heang must provide notice 

to the opposing pary or non-pary, pursuat to 16 C.F.R. § 3.45(b). 

See Additional Provision 7. 

Exchange deposition transcript counter-designations. 

Complaint Counsel to identify rebutt expert(s) and provide 

rebuttal expert report(s). Any such reports are to be limited to 

rebuttal of matters set fort in Respondents' expert reports. If 

material outside the scope of fair rebuttal is presented, 

Respondents wil have the right to seek 
 appropriate relief (such as 

strg Complaint Counsel's 
 rebuttal expert report or seekig 

leave to submit surebuttal expert report on behalf of 

Respondents). 

Deadline for fiing motions for in camera treatment of proposed 

trial exhbits. 

Deadline for depositions of experts (including rebutt experts) and 

exchange of expert related exhibits. 

Deadline for fiing motions in limine to preclude admission of 

evidence. See Additional Provision 9. 

Deadline for filing responses to motions for in camera treatment of 

proposed trial exhibits. 

Deadlne for fiing motions for 
 in camera treatment of proposed 

expert related exhbits. 

2
 
~~ t December 11, 2013 

December i 1) 2013 

December 11, 2013 

December 12, 2013 

December 12,2013 

December 12,2013 

December 13) 2013 

December 16) 2013 

December 17, 2013 

December 19,2013 

PUBLIC 

Deadine for fiIing responses to motions in limine to preclude 

admissions of 
 evidence. 

Exchange and serve couresy copy on AU objections to final 

proposed witness lists and exhibit lists. 

Exchange objections to the designated testimony to be presented 

by deposition and counter-designations. 

Deadline for filing responses to motions for in camera treatment of 

proposed exper related exhibits. 

Complaint Counsel fies pretral brief supported by legal authority. 

Exchange proposed stipulations of 
 law, facts) and authenticity. 

Respondents' Counel fies pretrial brief supported by legal 

authority. 

File final stipulations of 
 law) facts, and authenticity. Any 

subsequent stipulations may be offered as agreed by the pares. 

Final prehearingconference to begin at 10:00 a.m. in FTC 

Couroom, Room 532, Federal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

The paries are to meet and confer prior to the conference 

regarding trial 
 logistics and proposed stipulations of law) facts, and 

authenticity of exhibits and any designted deposition testimony. 

To the extent the paries stipulate to certain issues) the pares shall 

prepare a Joint Exhibit which lists the agreed stipulations. 

Counsel may present any objections to the final proposed witness 

lists and exhibits) including to any designated deposition 

testimony. Trial exhibits will be admitted or excluded to the extent 

practicable. To the extent the paries agree to the admission of 

each other's exhbits, the paries shall prepare a Joint Exhibit 

which lists the exhbits to which neither side objects. Any Joint 

Exhbit will be signed by each pary with no signatue for the judge 

required. 

Commencement of Hearing, to begin at 10:00 a.m. in FTC 

Courtoom, Room 532, Federal Trade Commission Building, 600 

Pennsylvana Avenue, NW, Washington, DC 20580. 

3 
PUBLIC
 

All Additiona Provisìons to the Augut 2, 2013 Scheduling Order remain in effect. 

ORDERED: :b tnelr:'

D. Michael eli pel
 

Chief Administrative Law Judge 

Date: October 18,2013 

4
 
PUBLIC
 

EXHIBIT 4
 
PUBLIC 

UNITED STATES OF AMERICA
 

FEDERAL TRADE COMMISSION
 OFFICE OF ADMINISTRATIVE LAW 
 JUDGES 

)


In the Matter of
 ) 

) 

Ardagh Group S.A., )


a public lìmited.liability company, and DOCKET NO. 9356
 )
 

)
 

Saint-Gobain Container, Inc.,
 )


a corporation, and
 )
 

)
 

Compagnie de Saint-Gobain,
 )
 

a corporation,
 )
 

Respondents.
 ) 

) 

SCHEDULING ORDER 

August 9,2013 Complaint Counsel provides preliminar witness list (not 
 including

expers) with a brief summar of the proposed testiony. 

August 16, 2013 Respondents' Counel provides preliminary witness lists 
 (not

including experts) with a brief summar of the proposed testimony. 

August 20,2013 Complaint Counsel provides expert witness list. 

August 23, 2013 Deadline for issuing document requests, interrogatories and 

subpoenas duces tecum, except for discovery for purposes of 

authenticity and admissibilty of exhibits. 

August 30, 2013 Respondents' Counsel provides expert witness list. 

Se~tember 6,2013 Deadline for issuing requests for admissions, except for requests 

for admissions for purposes of authenticity and admissibilty 
 of 

exhibits. 

September 23,2013 - Close of discovery, other than discovery permitted under Rule 

3.24(a)( 4), depositions of expers, and discovery for purposes of 

authenticity and admissibilty of exhibits. 

September23,2013 - Deadline for filing "(m lotions to dismiss fied before the 
PUBLIC 

evidentiar hearng, motions to strke, and motions for 

summary decision" pursuant to Rule 3.22(a). 

October 4,2013 Deadline for Complaint Counsel to provide expert witness reports. 

October 7, 2013 Complaint Counsel provides to Respondents' Counsel its final 

proposed witness and exhibit lists, including depositions or 

designated portons thereof, copies of all exhibits (except for 

demonstrative, îlustrative or summar exhibits and exper related 

exhibits), Complaint Counsel's basis of admissibility for each 

proposed exhbit, and a brief summary of the testimony of each 

witness. 

Complaint Counsel seres courtesy copies on AU of its final 

proposed witness and exhibit lists, its basis of admissibilty for 

each proposed exhibit, and a briefsummar of the testimony of 

each witness, including its expert witnesses. 

October 21,2013 Deadline for Respondents' Counsel to provide expert witness 

reports. Respondents' expert report shall include (without 

limitation) rebuttal, ifany, to Complaint Counsel's expert witness 

report(s). 

October 23, 2013 Respondents' Counsel provides to Complaint Counel its final 

proposed witness and exhibit lists, including depositions or 

designated portions thereof, copies of all exhibits (except for 

demonstrtive, ilustrative or summar exhibits and expert related 

exhibits), Respondents' basis of admissibilty for each proposed 

exhibit, and a brief summar of the testimony of each witness. 

Respondents' Counsel serves couresy copies on AU its final 

proposed witness and exhibit lists, its basis of admissibilty for 

each proposed exhibit, and a brief summary of the testimony of 

each witness, including its expert witnesses. 

October 24, 2013 Paries that intend to offer confidential materials of an opposing 

pary or non-pary as evidence at the hearng must provide notice 

to the opposing par or non-pary, pursuant to 16 C.F.R. § 3.45(b). 

See Additional Provision 7. 

October 28, 2013 Exchange deposition transcrpt counter-designations. 

October 31, 2013 Complaint Counsel to identîfy rebuttal exper(s) and provide 

rebuttal expert report(s). Any such reports are to be limited to 

rebuttal of matters set forth in Respondents' expert reports. If 

material outside the scope of fair rebuttal is presented, 

2
 
October 31,2013 

November 6, 2013
 

November 7, 2013
 

November 7, 2013
 

November 8, 2013
 

November 14, 2013
 

November 14, 2013
 

November 14,2013 

November 15,2013 

November 15,2013
 

November 15, 2013
 

November 19,2013 

November 20, 2013
 

November 21, 2013
 

PUBLIC 

Respondents wil have the right to seek appropriate relief (such as 

strking Complaint Counsel's rebuttal expert reports or seeking 

leave to submit surrbuttal expert reports on behalf of 

Respondents). 

Deadline for filing motions for in camera treatment of proposed 

tral exhibits.
 

Deadline for depositions of experts (including rebuttal experts) and 

exchange of expert related 
 exhbits. 

Deadline for filing motions in limine to preclude admission of 

evidence. See Additional Provision 9.
 

Deadline for filing responses to motions for in camera treatment of 

proposed tral exhibits.
 

Deadline for filing motions for in camera treatment ofproposed
 

expert related exhibits.
 

Deadline for filing responses to motions in limine to preclude 

admissions of evidence.
 

Exchange and serve couresy copy on AU objections to final
 

proposed witness lists and exhibit lists.
 

Exchange objections to the designated testimony to be presented 

by deposition and counter-designations.
 

Deadline for filing responses to motions for in camera treatment of
 

proposed exper related exhibits.
 

Complaint Counsel files pretral brief supported by legal authority. 

Exchange proposed stipulations oflaw, facts, and authenticity. 

Respondents' Counsel files pretrial brief supported by legal 

authority. 

File final stipulations of 
 law, facts, and authenticity. Any 

subsequent stipulations may be offered as agreed by the pares. 

Final prehearng conference to begin at 10:00 a.m. in FTC 

Courtoom, Room 532, Federal Trade Commission Building, 600 

Pensylvania Avenue, NW, Washington, DC 20580.
 

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PUBLIC 

The parties are to meet and confer prior to the conference 

regardng tral logistics and proposed stipulations oflaw, facts, and 

authenticity of exhibits and any designated deposition testimony. 

To the 
 extent the paries stipulate to certain issues, the parties shall 

prepare a Joint Exhibit which lists the agreed stipulations. 

Counsel may present any objections to the final proposed witness 

lists and exhibits, including to any designated deposition 

testimony. Trial exhibits wil be admitted or excluded to the extent 

practicable. To the extent the paries agree to the admssion of 

each other's exhibits, the parties shall prepare a Joint Exhibit 

which lists the exhibits to which neither side objects. Any Joint 

Exhibit wil be signed by each party with no signature for the judge 

required. 

December 2, 2013 Commencement of
 Hearng, to begin at 10:00 a.m. in FTC 

Couroom, Room 532, Federal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

ADDITIONAL PROVISIONS 

1. For all papers that are required to be filed with the Offce of 
 the Secretar, the partes 

shall sere a courtesy copy on the Administrative Law Judge by electronic mail to the following 

email addres.s: oalj@ftc.gov. The couresy copy should be transmitted at or shorty after the time 

of any electronic filing with the Offce of the Secretar. The oalj@ftc.gov email account is to be 

used only for courtesy copies of pleadings filed with the Offce of the Secretar and for 

documents specifically requested of the paries by the Offce of Administrative Law Judges. 

Certficates of service for any pleading shall not include the OAD email address, or the email 

address of any OADpersonnel, including the Chief AD, but rather shall designate only 600 

Pennsylvania Ave., NW, Rm. H-l1 0 as the place of serice. The subject line of all electronic 

submissions to oalj@ftc.gov shall set forth only the Docket Number and the title of the submission. Service by 
 email shall be followed promptly by delivery of one hard copy by the 

next business day. In any instance in which a courtesy copy of a pleading for the Administrtive 

Law Judge cannot be 
 effectuated by electronic mail, counsel shall hand deliver a hard copy to the 

Offce of Administrative Law Judges. Discovery requests and discovery responses shall not be 

submitted to the Office of Administrative Law Judges. The partes are reminded that all filìngs 

with the Offce of the Secretary, including electronic filings, are governed by the provisions of 

Commission Rule 4.3(d), which states: "Documents must be received in the Offce ofthe 

Secretar ofthe Commission by 5:00 p.m. Eastern time to be deemed filed that day. Any 

documents received by the agency after 5:00 p.m. wil be deemed filed the following business 

day." 

2. The pares shall serve each other by electronic mail and shall include "Docket 

9356" in the re line and all attached documents in .pdf format. Complaint Counsel and 

Respondents' Counsel agree to waive their rights to Servce under 16 C.F.R. § 4.4(a)-(b). 

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PUBLIC
 

3. Each pleading that cites to unpublished opinions or opinions not available on 

LEXIS or WESTLAW shall include such copies as exhibìts. 

4. Each motion (other than a motion to dismiss ora motion for sumary 

decision) shall be accompanied by a separate signed statement representing that counsel for the 

moving par has conferred with opposing counsel in an effort in good faith to resolve by 

agreement the issues raised by the motion and has been unable to reach such an agreement. In 

addition, pursuant to Rule 3.22(g), for each motion to quash filed puruant to § 3.34(c), each 

motion to compel or deterine suffciency pursuant to § 3.38(a), or each motion for sanctions 

puruant to § 3.38(b), the required signed statement must also "recite the date, time, and place of 

each .. . conference between counsel, and the names of 
 all pares paricipating in each such 

conference." Motions that fail to include such separate statement may be denied on that ground. 

5. Rule 3.22(c) states:
 

All wrtten 
 motions shall state the particular order, ruling, or action desired and 

the grounds therefor. Memoranda in support of, or in opposition to, any 

dispositive motion shall not exceed 10,000 words. Memoranda in support of, or 

in opposition to, any other motion shall not exceed 2,500 words. Any reply in 

support of a dispositive motion shall not exceed 5,000 words and any reply in 

support of any other motion authorized by the Administrative Law Judge or the 

Commission shall not exceed 1,250 words. 

If a pary chooses to submit a motion without a separate memorandum, the word count limits of 

3.22( c) apply to the motion. If a pary chooses to submit a motion with a separate memorandum, 

absent prior approval of 
 the AU, the motion shall be limited to 750 words, and the word count 

limits of3.22(c) apply to the memoradum in support of 
 the motion. This provision applies to 

all motions filed with the Administrative Law Judge, including those fied under Rule 3.38. 

6. Ifpapers filed with the Offce of 
 the Secretary contain in camera or 

confidential material, the filing par shall mark any such material in the complete version of 

their submission with tbold font and bracesJ. 16 C.F.R. § 3.45(e). Paries shall be aware of the 

rules for filings containing such information, including 16 C.F.R. § 4.2. 

7. If a par intends to offer confidential materials of an opposing pary or non-party as
 

evidence at the hearing, in providing notice to such non-pary, the paries are required to infoim 

each non-party of the strct standards for motions for in camera treatment for evidence to be 

introduced at tral set forth in 16 C.F.R. § 3.45, explained in In re Dura Lube Corp., 1999 FTC 

LEX IS 255 (Dec. 23, 1999); In re Hoechst Marion Roussel, Inc., 2000 FTC LEXIS 157 (Nov. 

22,2000) and 2000 FTC LEXIS 138 (Sept. 19,2000); In re Basic Research, Inc., 2006 FTC 

LEXIS 14 (Jan. 25, 2006), and summared herein. Motions also must be supported by a 

declaration or affdavit by a person qualified to explain the confidential nature of the documents. 

In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23,2004). Each pary or 

non-party that files a motion for in camera treatment shall provide one copy ofthe documents for 

which in camera treatment is sought to the Administrative 
 Law Judge. 

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PUBLIC 

8. If 
 the expert reports prepared for either party contain confidential information that has 

been granted in camera treatment, the pary shall prepare two versions of its expert report(s) in 

accordance with Provision 6 of this Scheduling Order and 16 C.F .R. § 3.45(e). 

9. Motions in limine are discouraged. Motion in limine refers "to any motion, whether 

made before or durng tral, to exclude anticipated prejudicial evidence before the evidence is 

actually offered." In re Daniel Chapter One, 2009 FTC LEXIS 85, *18-20 (April 20,2009)
 

(citing Luce v. United States, 469 U.S. 38,40 n.2 (1984)). Evidence should be excluded in
 

advance of 
 tral on a motion in limine only when the evidence is clearly inadmissible on all 

potential grounds. Id. (citing Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 

1398, 1400 (N.D. TIL 1993); Sec. Exch. Comm'n v. US. Environmental, Inc., 2002 U.S. Dist. 

LEXIS 19701, at *5-6 (S.D.N.Y. Oct. 16,2002)). Moreover, the 
 risk of prejudice from 
 giving undue weight to marginally relevant evidence is minimal in a bench tral such as this where the 

judge is capable of assigning appropriate weight to evidence. 

10. Compliance with the scheduled end of discovery requires that the parties serve 

subpoenas and discovery requests suffciently in advance of the discover cut-off and that all 

responses and objections wil be due on or before that date, unless otherwise noted. Any motion 

to compel responses to discovery requests shall be filed within 30 days of serice of 
 the

responses and/or objections to the discovery requests or within 20 days after the close of 

discovery, whichever first occurs. 

11. Each pary is limited to 50 document requests, including all discrete subpars; 

25 interrogatories, including all discrete subpars; and 50 requests for admissions including all 

discrete subparts except that there shall be no limit on the number of requests for admission for 

authentication and admissibilty of exhibits. Any single interrogatory inquiring as to a request 

for admissions response may address only a single such response. There is no limit to the 

number of sets of discovery requests the paries may issue, so long as the total number of each 

type ofdiscover request, including all subpart, does not exceed these limits. Within seven days of 
 service of a document request, the paries shall confer about the format for the 

production of electronically stored information. All discover taken in connection with FTC v. 

Ardagh Group, S.A., Case No. 13-CV-1021 (RM C) (D.D. C.) (the "Federal Action") can be used 

in this action and vice versa. However, document requests, interrogatories and requests for 

admissions served by the paries in connection with the Federal Action will count not against the 

limits noted above. 

12. No fact witness that has been deposed in the Federal Action may be deposed again in 

this action. The deposition of any person may be recorded by videotape, provided that the 

deposing pary notifies the deponent and all parties of its intention to record the deposition by 

videotape at least five days in advancè of 
 the deposition. No deposition, whether recorded by 

videotape or 
 otherwise, may exceed a single, seven-hour day, unless otherwise agreed to by the 

paries or ordered by the Administrative Law Judge. 

13. The paries shall serve upon one another, at the time of issuance, copies of all 

subpoenas duces tecum and subpoenas ad testifcandum. For subpoenas ad testifcandum, the 

party seeking the deposition shall consult with the other pares before the deposition date is 

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PUBLIC 

scheduled. The parties need not separately notice the deposition of a third party noticed by an 

opposing pary. At the request of any pary, the time and allocation for a third par deposition 

shall be divided evenly between them, but the noticing party may use any additional time not 

used by the opposing pary. If no 
 pary makes such a request, cross-examination of the witness 

wil be limited to one hour.
 

14. Non-paries shall. provide copies or make available for inspection and 

copying of documents requested by subpoena to the pary issuing the subpoena. The pary that
 

has requested documents from non-paries shall provide copies of the documents received 
 from

non-pares to the opposing party within three business days of 
 receiving the documents. No 

deposition of anon-pary shall be scheduled between the time a non-par provides documents in 

response to a subpoena duces tecum to a pary, and 3 days after the pary provides those 

documents to the other 
 pary, unless a shorter time is required by unforeseen logistical issues in 

scheduling the deposition, or a non"pary produces those documents at the time of the depositon 

as agreed to by all partes involved. 

15. The final witness lists shall represent counsels' good faith designation of all 

potential witnesses who counsel reasonably expect may be called in their case-in-chie£Paries 

shall notify the opposing pary promptly of changes in witness lists to facilitate completion of 

discovery within the dates of the scheduling order. The final proposed witness list may not 

include additional witnesses not listed in the preliminar witness lists previously exchanged 

unless by consent of all paries, or, ifthe partes do not consent, by an order of the 

Administrative Law Judge upon a showing of good cause. 

16. The final exhibit lists shall represent 
 counsels' good faith designation of all 

tral exhibits other than demonstrtive, ilustrative, or summar exhibits.. Additional exhibits 

may be added after the submission of the finallìsts only by consent of all partes, or, if the 

paries do not consent, by an order ofthe Administrative Law Judge upon a showing of 
 good 

cause. 

17. Witnesses shall not testify to a matter unless evidence is introduced sufficient 

to support a finding that the witness has personal knowledge of the matter. F.R.E.602. 

18. Witnesses not properly designated as expert witnesses shall not provide 

opinions beyond what is allowed in F.R.E. 701. 

19. The paries are required to comply with Rule 3.31A and with the following: 

(a) At the time an exper is first listed as a witness by a party, that pary shall 

provide to the other par 

(i) materials fully describing or identifying the background and qualifications of 

the expert, all publications authored by the expert within the preceding ten years, and all prior 

cases in which the expert has testified or has been deposed within the preceding four 
 years; and 

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PUBLIC 

(ii) transcripts of such testimony in the possession, custody, or control of the 

producing par or the expert. Notwthstanding the foregoing, transcripts subject to protective 

orders preventing their disclosure In this action need not be produced if the govering protective 

orders are produced to the other partes, unless, upon motion of any 
 pary and for good cause shown, the cour that issued the 
 protective order orders their production. 

(b) At the time an expert report is produced, the producing party shall provide to the 

other par all documents and other wrtten materials relied upon by the exper in formulating an
 

opinion in this case. Unless otherwse agreed by the paries, the experts' notes and drafts of 

expert reports need not be produced. Likewise, communications between experts and with 

counsel or 
 consultants need not be produced unless relied upon by the expert in formulating an 

opinion in this case.
 

be the responsibility of a pary designating an expert wìtness to ensure that the 

expert witness is reasonably avaîlable for deposition in keeping with this Scheduling Order. 

Unless otherwise agreed to by the paries or ordered by the Adtnnistrative Law Judge, expert 

(c) It shall 


witnesses shall be deposed only once and each 
 expert deposition shall be limited to one day for 

seven hours. Experts who have been deposed in the Federal Action wil not be deposed again in 

this action. Notwithstanding the foregoing, in the event an expert submits in this action an exper 

report that is different from the expert report that expert 
 has submitted in the Federal Acton, that 

expert may be deposed 
 a second time regarding such differences between the two reports. 

(d) Each expert report shall include a complete statement of all opinions to be expressed 

and the basis and reasons therefore; the data or other information considered by the exper in 

forming the opinions; any exhibits to be used as a summar of or support for the opinions; the 

qualifications of 
 the expert; and the compensation to be paid for the study and testimony. 

(e) A pary may not discover facts known or opinions held by an expert who has been retained or specially employed by 
 another pary in anticipation of this litigation or preparation 

for hearig and who is not designated by a party as a testifying witness. 

the expert reports, a par shall provide opposing counsel (i) 

a list of all commercially-available computer progrs used by the expert in the preparation of 

the report; (ii) a copy of all data sets used by the expert, in native file format and processed data 

fie format; and (ii) all customized computer programs used by the exper in the preparation of 

(f) At the time of servce of 


the report or necessar to replicate the findings on which the expert report is based. 

20. Properly admitted deposition testimony 
 and properly admitted investigational 

hearing transcripts are part of 
 the record and need not be read in open cour. Videotape 

deposition excerts that have been admitted in evidence may be presented in open court only
 

upon prior approval by the Administrative Law Judge. 

21. The paries shall provide one another, and the Administrative Law Judge, no 

later than 48 hours in advance, not including weekends and holidays, a list of all witnesses to be 

called on each day of 
 hearing, subject to possible delays or other unforeseen circumstances. 

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PUBLIC
 

22. The pares 
 shall provide one another with copies of any demonstrative, 

ilustrative or 
 summar exhibits (other than those prepared for cross-examination) 24 hours
 

before they are used with a witness.
 

23. Complaint Counsel's exhibits shall bear the designation CX and Respondents' 

exhibits shall be.ar the designation RX or some other appropriate designation. Complaint 

Counsel's demonstrative exhibits shall bear the designation CXD and Respondents' 

demonstrative exhibits shall bear the designation RX or some other appropriate designation. 

Both sides shall number the fit page of each exhbit with a single seres of conseutive 

numbers. When an exhibit consists of more than one piece of 
 paper, each page of the exhibit
 

must bear a consecutive control number or some other consecutive page number. Additionally,
 

pares must accunt for all their respective exhibit numbers. Any number not 
 actually used at 

the hearng 
 shall be designated "intentionally not used." 

24. At the final preheang conference, counsel will be required to introduce all 

exhibits they intend to introduce at tral. The paries shall confer and shall eliminate duplicative 

exhibits in. advance of the final prehearng conference and, if necessar, durig tral. For
 

example, if RX 100 and CX 200 are different copies of the same document, only one of those 

documents shall be offered into evidence. In 
 addition, the pares shall confer in advance of the 

final prehearg conferenceto prepare a Joint Stipulation that lists the proposed exhibits to which 

neither pary has an objection to admssibilty. Additional exhibits may be added after the final 

prehearg conference only by order of the Administrative Law Judge upon a showing of good 

cause. Counsel shall contact the cour reporter regarding submission of exhibits. 

ORDERED: :Dm ~,,

D. Michael Chappell 

Chief Administrative Law Judge 

Date: August 2, 2013 

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PUBLIC
 

CERTIFICATE OF SERVICE 

I hereby certify that on December 4,2013, 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 Yark, 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 
PUBLIC
 

yeven@cravath.com 

acheng@cravath.com 

Counsel for Respondent Saint-Gobain Containers, Inc. 

CERTIFICATE FOR ELECTRONIC FILING 

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

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 4,2013 By: fsf Edward D. Hassi
 

Attorney