UNITED STATES OF Al\RICA

BEFORE THE FEDERAL TRADE COMMSSION

OFFICE OF ADMINISTRATIVE LAW JUDGES OR'G1NAL

Saint-Gobain Containers, Inc., a

corporation.

)

)

)

)

)

) and ) Compagnie de Saint-Gobain, a corporation, )

)

)

)

)

Ardagh Group S.A.,

a public limited liabilty company, and Docket No. 9356

SfCflARY

In the Matter of

PUBLIC

NON-PARTY CONSTELLATION BRANDS, INC.'S MOTION

FOR IN CAMERA TREATl\NT OF PROPOSED OF TRIAL EXHIBITS

Non-party Constellation Brands, Inc. hereby moves for in camera treatment of certain

proposed trial exhibits, pursuant to 16 C.F.R. §3.45.

In support of this motion, Constellation Brands, Inc. provides its accompanying ~

memorandum and Declaration of Peter Lijewski.

On December 3,2013, Counsel for Constellation Brands, Inc. conferred with Complaint

----

Counsel and Respondents' counsel regarding the proposed exhibits for which Constellation

Brands, Inc. is seeking in camera treatment. Complaint Counsel and Respondents do not oppose

this motion.

WHREFORE, Non-pary Constellation Brands, Inc. respectfully requests that this court

grant in camera treatment to the documents designated in the attached memorandum.
Respectfully submitted,

Dated: December 9, 2013 ~X:~

: JE !FR L. WESTBROOK

Joseph F. Winterscheid

Waren R. Rosborough

Jennifer L. Westbrook

McDERMOTI WILL & EMERY LLP

500 Nort Capitol Street, N.W.

Washington, D.C. 20001

Telephone: (202) 756-8000

Facsimile: (202) 756-8087

jwinterscheid@mwe.com

wrosborough@mwe.com

jwestbrook@mwe.com

Counsel for Constellation Brands, Inc.

2

Public
Public

CERTIFICATE OF SERVICE

I, Jennifer Westbrook, hereby certify that I served a true and correct copy of the

foregoing Non-Party Constellation Brands, Inc.'s Motion for In Camera Treatment of Proposed

Trial Exhibits, Public Version, upon the following individuals by hand on December 9,2013.

Hon. D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW

RoomH110

Washington, DC 20580

Donald S. Clark

Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW

Room 172

Washington, DC 20580

I, Jennifer Westbrook, hereby certify that I served a true and correct copy of the

foregoing Non-Pary Constellation Brands, Inc.'s Motion for In Camera Treatment of Proposed

Trial Exhibits, Public Version, upon the following individuals by electronic mail on December 9, 2013. .

Sebastian Lorigo

Edward Hassi

Michael Franchak

FEDERAL TRADE COMMSSION

601 New Jersey Avenue, NW

Mail Drop NJ -6120

Washington, D.C. 20001

(202) 326-3717

slorigo@ftc.gov

ehassi@ftc.gov

mfranchak@ftc.gov

Counsel for Plaintif Federal Trade Commission

Richard F. Schwed

Alan S. Goudiss

SHEARM & STERLING LLP

599 Lexington Avenue

New York, New York 10022

(212) 848-4000 telephone

(212) 848-7179 fax

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Public

rschwed@shearman.com

agoudiss@shearan.com

Heather L. Kafele

SHEARMAN & STERLING LLP

801 Pennsylvania Avenue, NW

Washington, D.C. 20004

(202) 508-8000 telephone

(202) 508-8100 fax

hkafele@shearan.com

Counsel for Defendant 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

cvamey@cravath.com

yeven@cravath.com

acheng@cravath.com

Counsel for Defendant Compagnie de Saint-Gobain, and

Saint-Gobain Containers, Inc.

cf~~ Jifeestbrook

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UNITED STATES OF Al\RICA

BEFORE THE FEDERAL TRADE COMMSSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

)

)

)

)

)

)

Compagnie de Saint-Gobain, a corporation, ) md ) )

)

)

)

Ardagh Group S .A.,

a public limited liability company, and Docket No. 9356

In the Matter of

PUBLIC

Saint-Gobain Containers, Inc., a

corporation.

NON-PARTY CONSTELLATION BRANS, INC.'S l\MORANUM

IN SUPPORT OF ITS MOTION FOR IN CAMERA

TREATl\NT OF PROPOSED TRIAL EXIDBITS

Pursuant to Rule 3.45 of the Federal Trade Commission's Rules of Adjudicative Practice,

Non-party Constellation Brands, Inc. ("Constellation ") submits this Memorandum in Support of

j

."

its Motion for In Camera Treatment of Proposed Trial Exhibits.

i. Introduction

Constellation, which is not a pary to the above-captioned matter, produced over three

thousand documents to Complaint Counsel and Respondents in response to their requests for

documents as par of discovery in this administrative proceeding. In response to Complaint

Counsel's and Respondents' requests for various documents, including competitively sensitive

presentations and reports, financial information, contracts, and internal correspondence,

Constellation produced these documents to the respective paries on August 12-14,2013.

Constellation designated all of its documents as "Confidential" at the time they were produced.

By letters from Complaint Counsel and Respondents dated November 19, 2013, the parties

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notified Constellation that they intend to introduce certain Constellation documents into evidence

~"1

at the administrative hearing in this matter.

Constellation seeks in camera treatment of these proposed exhibits because they are

confidential, competitively sensitive documents that relate to Constellation's business strategy

and present and future operations. Public disclosure would result in a serious competitive injury

to Constellation. Counsel for Constellation have carefully reviewed each document and

deposition excerpt identified in Table 1 and have determined that they qualify under the

standards as set fort in 16 C.F.R. §3.45 for in camera treatment.

Accordingly, and pursuant to 16 C.F.R. §3.45, Constellation respectfully submits its

motion and moves for an order granting in camera treatment for certain proposed trial exhibits

designated by Complaint Counsel and Respondents. These documents and deposition testimony

are listed in Table 1 and described in the accompanying declaration of Peter Lijewski. 

1 The

confidential information contained in these proposed exhibits, if disclosed, would result in a

clearly defined, serious competitive injury to Constellation.

II. The Clearly Defined, Serious Injury Standard

An applicant seeking in camera protection for material offered into evidence may receive

in camera treatment when "its public disclosure willicely result in a clearly dcfined, serious

injury." 16 C.F.R. § 3.45(b). An applicant can meet that standard by establishing that the

evidence is "sufficiently secret and sufficiently material to the applicant's business that

disclosure would result in serious competitive injury." See In the Matter of Evanston

Northwestern Healthcare Corp., 2005 FTC LEXIS 27, at *1 (Feb. 9, 2005) (internal citations

i Table i provides a complete list of proposed trial exhibits for which Constellation seeks in camera treatment

Table 1 and the declaration accompanying this motion explain the basis for in camera treatment for each proposed

exhibit

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omitted). In making this determination, administrative courts review six factors to determine

secrecy and materiality: (1) the extent to which the information is known outside of the

applicant's business; (2) the extent to which it is known by employees and others involved in his

business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the

value of the information to him and to his competitors; (5) the amount of effort or money

expended by him in developing the information; (6) the ease or difficulty with which the

information could be properly acquired or duplicated by others. See In the Matter of BristolMyers Co., 1977 FTC LEXIS 25, at *5-6 (Nov. 11, 1997).

III. Constellation's Documents Meet The Clearly Defined, Serious Injury Standard

All six factors support granting Constellation's motion for in camera treatment. First,

Constellation treats as confidential every document for which it seeks in camera treatment. (See

Lijewski Decl. CJCJ 2-3.) The information in these materials is not known to the public or

generally outside Constellation (or the pary with whom Constellation was negotiating or

contracting). These documents are not a matter of public record and have not been fully

disclosed in any public context. !d.

Second, the internal materials reflect the strategic decision-making of senior executives

from Constellation. The confidential information in these documents is not generally known to

all employees within Constellation. The internal reports and presentations contain carefully

guarded business planing, forecasting, and strategy information. (See, e.g., Lijewski Decl CJCJ 5-

18.) Likewise, documents reflecting Constellation's supplier contracts and negotiations with

third paries represent the business goals and competitive strategy of Constellation's senior

executives. The contracting terms and conditions are not generally known throughout the

organization.

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Third, Constellation has carefully guarded the secrecy of these materials. (See, e.g.,

Lijewski Decl CJCJ 2-3.) Constellation was compelled to produce the materials pursuant to the

_ discovery process, but otherwise has not publically disclosed the information found within the

confidential documents or discussed during Mr. Lijewski's deposition.

Fourth, competitor companies would benefit significantly from gaining access to these

materials. The materials reflect Constellation's business strategy, financial plans, budgeting

scenarios, competitive goals, and contracting initiatives, all of which are competitively sensitive.

For example, the materials include correspondence revealing negotiations with glass suppliers.

These materials are competitively sensitive to Constellation, as well as to the paries with which

they contract. These documents represent a complex process and are unique to the relevant

parties. Competitors would benefit significantly and unfairly from gaining access to these

materials.

Fifth, Constellation has spent significant effort and resources in developing some of the

materials, paricularly financial budgets, strategic plans, and presentations. Constellation has

spent considerable time and expended considerable resources to analyze its production activities,

financial performance, and potential strategies for future production activities. The public

disclosure of this inormation would har Constellation's business operations.

Finally, it would be difficult for another pary to replicate the information found in these

materials because they reflect the work product of senior executives with years of experience at

Constellation. The materials are unique and tailored to Constellation and are not known to the

general public.

Constellation would suffer irreparable injury if the information contained in these

documents and testimony was disclosed to the public. Disclosure of planing, strategy, and

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financial documents would give competitors an improper glimpse into the Constellation's dayto-day operations and strategic decision-making, and give them a competitive advantage for

future planing and budgeting. (See, e.g., Lijewski Decl CJCJ 5-18.)

The tribunal may iner, "without a specific showing of how a competitor would use it,

that disclosure of allegedly sensitive information would seriously affect the firm's commercial

position. Underlying this analysis is a general concern for the seriousness of injury to a firm's

commercial or competitive position." In the Matter of E.I. Dupont de Nemours & Co., 1981

FTC LEXIS 91, at *3 (Jan. 21, 1981). The materials at issue here pose a strong likelihood of

haring Constellation's competitive position if disclosed to the public.

The information for which Constellation seeks in camera treatment remains relevant and

significant today. Constellation seeks in camera treatment for information that is generally

within thee years old. Nevertheless, even aged data is sensitive and remains worthy of

protection because they reflect Constellation's business strategies and can impact future

negotiations between Constellation and its suppliers. Disclosure of these materials would cause

competitive har to Constellation and its suppliers in future contract negotiations. See In re

Kaiser Aluminum & Chemical Corp., 1984 FTC LEXIS 60, at *2 (May 25, 1984) (holding that

material that was over five years old was stil sensitive and deserving of in camera treatment

where "a serious injury would be done by release of this information, which they have never

made available to the public").

iv. The Public Interest in Disclosure of the Proposed Exhibits is Outweighed by the

Likelihood of Serious Competitive Harm to Constellation

As a non-party to this matter, Constellation should receive "special solicitude" in its

request for in camera treatment of the proposed exhibits. See In re Kaiser Aluminum &

Chemical Corp., 1984 FTC LEXIS 60, at *2-3 (May 25, 1984) (granting in camera treatment for

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non-paries' sales information that was five years old). Extending in camera treatment in

appropriate cases and for reasonable periods of time encourages non-paries to cooperate with

future discovery requests. Id. Although Constellation has complied with the discovery requests

in this administrative proceeding, "public understanding of this proceeding does not depend on

access" to Constellation's confidential information. Id. Therefore, the balance of interests

weighs in favor of in camera protection for Constellation's documents.

V. Expiration Date

Constellation seeks temporary in camera treatment of these confidential documents and

deposition testimony identified in Table 1. Specifically, Constellation seeks temporary in

camera treatment for each category of documents for a period of five years. Where in camera

treatment is granted for business records, it is typically extended for a period of two to five years.

See In re Kaiser Aluminum & Chemical Corp., 1984 FTC LEXIS 60 (May 25, 1984) (granting

sales data in camera treatment for five years); Evanston Northwestern Healthcare Corp., 2005

FTC LEX IS 27, at *2 (Feb. 9, 2005); In re Union Oil Co. of CaL., 2004 FTC LEXIS 223, at *2

(Nov. 22, 2004); In the Matter of E.I. Dupont de Nemours & Co., 1981 FTC LEXIS 91 (Jan. 21,

1981) (granting financial data in camera treatment for thee years); In re Int 1 Ass. Of Conf.

Interpreters, 1996 FTC. LEXIS 298 (June 26, 1996) (granting contracts in camera treatment for

three years). Five years is necessary to protect documents related to Constellation's agreements

with suppliers because those contracts often last several years. Five years is also necessary to

protect business records with competitively sensitive information that contain projections or

forecasts impacting future plans and initiatives. Therefore, documents that are three to five years

old remain relevant, material, and confidential, and warant in camera treatment.

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VI. Conclusion

Pursuant to 16 C.F.R. §3.45, Constellation respectfully moves for in camera treatment of

the proposed exhibits identified in Table 1.

Respectfully submitted,

Dated: December 9,2013 ~:t~

B. JEN R L. WESTBROOK

Joseph F. Winterscheid

Waren R. Rosborough

Jennifer L. Westbrook

MCDERMOTI WILL & EMERY LLP

500 Nort Capitol Street, N.W.

Washington, D.C. 20001

Telephone: (202) 756-8000

Facsimile: (202) 756-8087

jwinterscheid@mwe.com

wrosborough@mwe.com

jwestbrook@mwe.com

Counsel for Constellation Brands, Inc.

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Public

CERTIFICATE OF SERVICE

I, Jennifer Westbrook, hereby certify that I served a true and correct copy of the

foregoing Non-pary Constellation Brands, InC.'s Memorandum in Support of Its Motion for In

Camera Treatment of Proposed Trial Exhibits, Public Version, upon the following individuals by

hand on December 9, 2013.

Hon. D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW

RoomH11O

Washington, DC 20580

Donald S. Clark

Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW

Room 172

Washington, DC 20580

I, Jennifer Westbrook, hereby certify that I served a true and correct copy of the

foregoing Non-pary Constellation Brands, InC.' s Memorandum in Support of Its Motion for In

Camera Treatment of Proposed Trial Exhibits, Public Version, upon the following individuals by

electronic mail on December 9, 2013.

Sebastian Lorigo

Edward Hassi

Michael Franchak

FEDERAL TRADE COMMSSION

601 New Jersey Avenue, NW

Mail Drop NJ-6120

Washington, D.C. 20001

(202) 326-3717

slorigo@ftc.gov

ehassi@ftc.gov

mfranchak@ftc.gov

Counsel for Plaintif Federal Trade Commission

Richard F. Schwed

Alan S. Goudiss

SHEARMAN & STERLINGLLP

599 Lexington A venue

New York, New York 10022

(212) 848-4000 telephone

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Public

(212) 848-7179 fax

rschwed@shearan.com

agoudiss@shearan.com

Heather L. Kafele

SHEARMAN & STERLING LLP

801 Pennsylvania Avenue, NW

Washington, D.C. 20004

(202) 508-8000 telephone

(202) 508-8100 fax

hkafele@shearan.com

Counsel for Defendant Ardagh Group, S.A.

Christine Varey

Y onatan Even

Athena Cheng

CRAVATH, SWAINE & MOORE LLP

825 Eighth Avenue

New York, NY 10019

(212) 474-1140

cvarney@cravath.com

yeven@cravath.com

acheng@cravath.com

Counsel for Defendant Compagnie de Saint-Gobain, and

Saint-Gobain Containers, Inc.

DM_US 47289703-1.025309.0011

~estbrok . 'i~

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

Saint-Gobain Containers, Inc., a

corporation.

)

)

)

)

)

)

Compagnie de Saint-Gobain, a corporation, ) and ) )

)

)

)

In the Matter of

Ardagh Group S .A.,

a public limited liability company, and Docket No. 9356

STATEMENT REGARDING MEET AND CONFER

On December 3,2013, at approximately 2:40 p.m., Non-party Constellation Brands,

Inc.'s ("Constellation") Counsel, Jennifer Westbrook, conferred telephonically with

.,.1 Respondents' Counsel, Mark Lanpher, regarding Constellation's Motion for In Camera

Treatment of Proposed Trial Exhibits. Respondents' Counsel indicated that they do not intend to

oppose Constellation's motion.

On December 3, 2013, at approximately 3:00 p.m., Non-pary Constellation Brands,

Inc.'s ("Constellation") Counsel, Jennifer Westbrook, conferred telephonically with Complaint

Counsel, Michael Franchak, regarding Constellation's Motion for In Camera Treatment of

Proposed Trial Exhibits. Complaint Counsel indicated that they do not intend to oppose

Constellation's motion.

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Respectfully submitted,

Dated: December 9, 2013

~R L. WESlBROOK . rL~

Joseph F. Winterscheid

Waren R. Rosborough

Jennifer L. Westbrook

McDERMOTT WILL & EMERY LLP

500 North Capitol Street, N.W.

Washington, D. C. 20001

Telephone: (202) 756-8000

Facsimile: (202) 756-8087

jwinterscheid@mwe.com

wrosborough@mwe.com

jwestbrook@mwe.com

Counsel for Constellation Brands, Inc.

DM_ us 47289846-1.025309.0011

~

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UNITED STATES OF AMRICA

BEFORE THE FEDERAL TRADE COMMSSION

OFFICE OF ADMIISTRATIVE LAW JUDGES

)

)

)

)

)

)

Compagnie de Saint-Gobain, a corporation, ) and ) )

)

)

)

Ardagh Group S.A.,

a public limited liability company, and Docket No. 9356

In the Matter of

Saint-Gobain Containers, Inc., a

corporation.

(PROPOSED) ORDER GRANTING NON-PARTY

CONSTELLATION BRANDS, INC.'S MOTION

FOR IN CAMERA TREATl\NT OF PROPOSED TRIAL EXHffITS

Upon consideration of Non-Pary, Constellation Brands, Inc.' s Motion for In Camera

treatment of Proposed Trial Exhibits, it is hereby ordered that in camera treatment wil be given

to the exhibits listed in the Table below for the period of time indicated.

Dated December _, 2013

The Honorable D. Michael Chappell

Chief Administrative Law Judge

PXNumber DXNumber. Length of In Camera Expiration of In Camera

Treatment Treatment

DX643 Five Years December 9, 2018

DX649 Five Years December 9, 2018
PXNumber DXNumber Length of In Camera Expiration of In Camera

Treatment Treatment

DX757 Five Years December 9, 2018

PX4346 DX648 Five Years December 9, 2018

PX4347 Five Years December 9, 2018

PX4348 Five Years December 9, 2018

PX4351 Five Years December 9, 2018

PX4354 Five Years December 9, 2018

PX4370 Five Years December 9, 2018

PX4371 Five Years December 9, 2018

PX4378 Five Years December 9, 2018

PX5031 Five Years December 9, 2018

PX6042 Five Years December 9, 2018

OM_US 47290235-1.025309.0011
DECLARATION OF PETER LIJEWSKI

REDACTED IN ITS ENTIRETY
TABLE 1 TO NON-PARTY CONSTELLATION BRANDS, INC.'S MOTION

FOR IN CAMERA TREATMENT OF PROPOSED TRIAL EXHIBITS

REDACTED IN ITS ENTIRETY
PROPOSED TRIAL EXHIBITS

REDACTED IN ITS ENTIRETY