PUBLIC

Vil. PUBLIC DISCLOSURE OF EXHIBIT _H_(PX6057) WOULD _RESULT_IN
SERIOUS COMPETITIVE INJURY TO HEAVEN HILL.

Exhibit H to this Motion are certain portions of the deposition testimony of Max. L.
Shapira that have been designated for use at trial by the Commission and Ardagh, and which
contain highly confidential proprietary information concerning Heaven Hill (Decl. at 423). The
designated portions of the transcript of Mr. Shapira’s testimony extracts in question have been
provisionally identified as Trial Exhibit PX6057. The portions of Mr. Shapira’s testimony for
which Heaven Hill seeks in camera treatment are as follows:

Page 41 line 17, and lines 21 through 24: The testimony appearing in these lines of the

transcript reveals

] dd).

Page 85 line 16: The testimony appearing in this line of the transcript reveals
] (id).

Page 108 lines 2 through 5: The testimony appearing in these lines of the transcript

reveals [

] dd).

A. Heaven Hill Has Preserved the Confidentiality of Exhibit H and the
Information it Contains.

Heaven Hill is an independent privately owned company and so is not subject to any
requirement for public reporting of its finances, sales, operations, or plans (Decl. at §4). Heaven

Hill does not publicly reveal the terms of its [

that are reflected in Exhibit H (Decl. at §24). Such information is only disclosed to

Heaven Hill executives who have a need to know the information in order to carry out their job

20


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. Also included in the document are the [

] Ud). Public disclosure of

this information would enable bottle manufacturers [

, thus tending to reduce competition between bottle manufacturers when bidding
contracts.

Cc. The Public Interest in Disclosure of Exhibit E is Outweighed by the
Likelihood of Serious Competitive Harm to Heaven Hill.

As a non-party to this matter, Heaven Hill deserves “special solicitude” in requesting in
camera treatment for its confidential business information. In the Matter of Kaiser Aluminum &
Chemical Corp., 103 F.T.C. 500, 500 (1984) (order directing in camera treatment for five-year-
old sales statistics of non-parties). Jn camera treatment of information, for reasonable time
periods encourages non-parties to cooperate with future discovery requests in adjudicate
proceedings. Jd. Heaven Hill has cooperated with the discovery demands in this case.
Conversely, “public understanding of this proceeding does not depend on access to” Heaven
Hill’s highly confidential information. Jd. The balance of interests clearly favors in camera
protection for Exhibit E. See Bristol, 90 F.T.C. at 456 (describing six-factor test for determining
secrecy and materiality).

D. Protection for Exhibit E Should Extend For 5 Years.

The nature of the highly confidential information contained in Exhibit E warrants lasting
protection. Maintaining the confidentiality of the information contained in the document is vital
to Heaven Hill’s competitive position and business strategy. Accordingly, Heaven Hill

respectfully requests that Exhibit E be afforded in camera protection for a period of five years.

14


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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been served
upon the following, on this the 5th day of December, 2013:

Donald S. Clark, Secretary Monica Castilo

Federal Trade Commission Amanda Hamilton

600 Pennsylvania Ave., NW, Rm. H-113 U.S. Federal Trade Commission

Washington, DC 20580 600 Pennsylvania Ave., NW

Via Overnight Delivery Washington, DC 20580
Complaint Counsel

Christine Varney

Yonatan Even Alan Goudiss

Athena Cheng Dale Collins

Cravath, Swaine & Moore, LLP Richard Schwed

825 Eighth Avenue Lis] Dunlop

New York, NY 10019 Shearman & Sterling, LLP

Counsel for Respondent Saint-Gobain 599 Lexington Avenue

Containers, Inc. New York, NY 10022

Counsel for Respondent Ardagh Group, S.A.

Ye 8 10 ue

D&id A. Calhoun
Counsel for Non-Party Heaven Hill Distilleries, Inc.

61074599.1

24


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Ud). This would give Heaven Hill’s competitors and potential

competitors an unfair advantage in formulating their own [

(id). Public disclosure of Exhibit B would also reveal
] (Weel. at

47). Depending upon the category of spirit and the bottle size, [__
] that Heaven Hill

sells, and as a minimum, [__ ] dd). L_

(Ud). Knowing Heaven Hill’s would give

Heaven Hill’s competitors an unfair advantage [

]

through its negotiated agreements with suppliers (Jd). Public disclosure of the information in
Exhibit B could also lead to reduced price competition between bottle manufacturers (/d_).

C The Public Interest in Disclosure of Exhibit B is Outweighed by the
Likelihood of Serious Competitive Harm to Heaven Hill.

As a non-party to this matter, Heaven Hill deserves “special solicitude” in requesting in
camera treatment for its confidential business information. In the Matter of Kaiser Aluminum &
Chemical Corp., 103 F.T.C. 500, 500 (1984) (order directing in camera treatment for five-year-
old sales statistics of non-parties). In camera treatment of information, for reasonable timc
periods encourages non-parties to cooperate with future discovery requests in adjudicate
proceedings. Jd. Heaven Hill has cooperated with the discovery demands in this case.
Conversely, “public understanding of this proceeding does not depend on access to” Heaven

Hill’s highly confidential information. Jd. The balance of interests clearly favors in camera


PUBLIC

responsibilities or to vendors with which Heaven Hill has contracted (/d.). The information is
not known outside of Heaven Hill except to the extent necessary to engage in contract
negotiations with (id). It would be extremely difficult for Heaven Hill’s
competitors or other outside persons to access or duplicate the information contained in the
document at issue (Jd). Heaven Hill has gone through great lengths to preserve the
confidentiality of the information contained in Exhibit H.

B. Disclosure of the Information Contained in Exhibit H Would Result in
Serious Competitive Injury to Heaven Hill.

Disclosure of the information in Exhibit H could result in serious damage to Heaven
Hill’s competitive advantage in the marketplace (Decl. at §25). Public disclosure of the

information in Exhibit H would inform Heaven Hill’s competitors of

(id). This would [

] Ud). Public disclosure of this

information would also [__

(d.). Just as Heaven Hill has an expectation that the

] justifiably expect that Heaven Hill will not

disclose to [__

(id). Finally, disclosure of the [_

] could give [ ] an

unfair advantage in [

(Decl. at 26). It would also tend to induce potential competitors to launch

21


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VIII. PERSON WHO SHOULD BE NOTIFIED OF THE COMMISSION’S INTENT TO
DISCLOSE ANY OF THE IN CAMERA INFORMATION _IN_EXHIBITS B
THROUGH H.

In the event that the Commission intends to disclose any of the in camera information in
Exhibits B through H in a final decision, the Commission should notify the undersigned counsel
for non-party Heaven Hill Distilleries at the below indicated address.

Respectfully submitted,

David A. Calhoun
WYATT, TARRANT & COMBS, LLP
500 West Jefferson Street, Suite 2800

Louisville, Kentucky 40202-2898
Tel: 502.589.5235

E-Mail: dcalhoun@wyattfirm.com
Counsel for Non-Party Heaven Hill Distilleries, Inc.

23


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corner of the pages of the document (Decl. at §20). Exhibit G reveals

(Id).

A. Heaven Hill Has Preserved the Confidentiality of Exhibit G and the
Information it Contains.

Heaven Hill is an independent privately owned company and so is not subject to any
requirement for public reporting of its finances, sales, operations, or plans (Decl. at 4). Heaven
Hill does not publicly reveal the terms of its bottle supply contacts that are reflected in Exhibit G
(Decl. at §21). Such information is only disclosed to Heaven Hill executives who have a need to
know the information in order to carry out their job responsibilities (Jd). The information is not
known outside of Heaven Hill except to the extent necessary to engage in negotiations with

(d.). It would be extremely difficult for Heaven Hill’s competitors or other
outside persons to access or duplicate the information contained in the document at issue (Jd_).
Heaven Hill has gone through great lengths to preserve the confidentiality of the information
contained in Exhibit G.

B. Disclosure of the Information Contained in Exhibit G Could Result in
Serious Competitive Injury to Heaven Hill.

Disclosure of the information in Exhibit G could result in serious damage to Heaven

Hill’s competitive advantage in the marketplace (Decl. at §22). Public disclosure would reveal

L ]

(d.). If other learn these terms Heaven Hill will be at a disadvantage when

18


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HeavenHillPaper_ 000064 contains the [

] Ua).

A. Heaven Hill Has Preserved the Confidentiality of Exhibit D and the
Information it Contains.

Heaven Hill is an independent privately owned company and so is not subject to any
requirement for public reporting of its finances, sales, operations, or plans. (Decl. at 4).

Heaven Hill does not publicly reveal t[ ] that are contained

in Exhibit D (Decl. at 412). Such information is only disclosed to Heaven Hill executives who
have a need to know the information in order to carry out their job responsibilities, or to specific
vendors in connection with contract negotiations or contract fulfillment (Jd). In each instance in

which the contained in Exhibit D is disclosed to a vendor

]

(Id,). It would be extremely difficult, if not impossible, for Heaven Hill’s competitors or other
outside persons to access or duplicate the information contained in the document at issue (/d.).
Heaven Hill has gone through great lengths to preserve the confidentiality of the information
contained in Exhibit D.

B. Disclosure of the Information Contained in Exhibit D Would Result in
Serious Competitive Injury to Heaven Hill.

Disclosure of the information in Exhibit D would result in serious damage to Heaven
Hill’s competitive advantage in the marketplace (Decl. at 13). Heaven Hill’s competitors and

potential competitors are not able to ascertain [ ] disclosed in Exhibit

D through any proper means (Jd). Public disclosure of the information in Exhibit D would

enable Heaven Hill’s competitors [

10


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49). Nor does it publicly reveal any [

(Id.). Such information is only disclosed to Heaven Hill executives who
have a need to know the information in order to carry out their job responsibilities (Jd). The
information is not known outside of Heaven Hill except to the extent necessary to engage in
negotiations with bottle suppliers, and it would be extremely difficult for Heaven Hill’s
competitors or other outside persons to access or duplicate the information contained in the
document at issue (/d). Heaven Hill has gone through great lengths to preserve the
confidentiality of the information contained in Exhibit C.

B. Disclosure of the Information Contained in Exhibit C Would Result in
Serious Competitive Injury to Heaven Hill.

Disclosure of the information in Exhibit C would result in serious damage to Heaven
Hill’s competitive advantage in the marketplace (Decl. at 10). Public disclosure of the
information in Exhibit B would enable bottle manufacturers to coordinate their pricing, thus
tending to reduce price competition among those manufacturers (Id). The information in

Exhibit C would also enable manufacturers of competing spirits brands to

] Ga). [

] Ud). Depending upon the

category of spirit and the bottle size, the cost of the bottle

] that Heaven Hill sells, and as a minimum, the

cost of the bottle is [ ] dd). [

] dd).

]dd). Public disclosure of the



PUBLIC

protection for Exhibit B. See Bristol, 90 F.T.C. at 456 (describing six-factor test for determining
secrecy and materiality).

D. Protection for Exhibit B Should Extend For 5 Years.

The nature of the highly confidential information contained in Exhibit B warrants lasting
protection. Maintaining the confidentiality of the information contained in the document is vital
to Heaven Hill’s competitive position and business strategy. Accordingly, Heaven Hill

respectfully requests that Exhibit B be afforded in camera protection for a period of five years.

I. PUBLIC DISCLOSURE OF _ EXHIBIT _C_(PX4740) WOULD RESULT _IN

SERIOUS COMPETITIVE INJURY TO HEAVEN HILL.

Exhibit C to this Motion has been designated as Trial Exhibit PX4740, and is identified
by “Bates” numbers HeavenHillPaper 000026 through 000028 in the lower right hand corners of
the pages of the document. The last page of the document, bearing Bates label HeavenHillPaper
000028 is a portion of an e-mail from an Anchor glass executive to a Heaven Hill executive

explaining and [ ] (Decl. at 98). The

confidential information revealed in this document includes 1) the in
Heaven Hill’s contract with Anchor Glass; 2) the
L J; and 3) a

Anchor glass with respect to a particular Heaven Hill brand and the

to Heaven Hill (id).

A. Heaven Hill Has Preserved the Confidentiality of Exhibit C and the
Information it Contains.

Heaven Hill is an independent privately owned company and so is not subject to any
requirement for public reporting of its finances, sales, operations, or plans. (Decl. at 4).

Heaven Hill does not publicly reveal the terms of its contracts with its bottle suppliers. (Jd. at


PUBLIC

L ] dd). Similarly, if Heaven

Hill’s

] Ud). Heaven Hill’s

ability to [

] Ud). If its ability to
] dd).

Cc The Public Interest in Disclosure of Exhibit G is Outweighed by the
Likelihood of Serious Competitive Harm to Heaven Hill.

As a non-party to this matter, Heaven Hill deserves “special solicitude” in requesting in
camera treatment for its confidential business information. In the Matter of Kaiser Aluminum &
Chemical Corp., 103 F.T.C. 500, 500 (1984) (order directing in camera treatment for five-year-
old sales statistics of non-parties). Jn camera treatment of information, for reasonable time
periods encourages non-parties to cooperate with future discovery requests in adjudicate
proceedings. Jd Heaven Hill has cooperated with the discovery demands in this case.
Conversely, “public understanding of this proceeding does not depend on access to” Heaven
Hill’s highly confidential information. Jd. The balance of interests clearly favors in camera
protection for Exhibit H. See Bristol, 90 F.T.C. at 456 (describing six-factor test for determining
secrecy and materiality).

D. Protection for Exhibit G Should Extend For 5 Years.

The nature of the highly confidential information contained in Exhibit G warrants lasting
protection. Maintaining the confidentiality of the information contained in the document is vital
to Heaven Hill’s competitive position and business strategy. Accordingly, Heaven Hill

respectfully requests that Exhibit G be afforded in camera protection for a period of five years.

19


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Ti. PUBLIC DISCLOSURE OF EXHIBIT D_ (PX4741) WOULD RESULT_IN

SERIOUS COMPETITIVE INJURY TO HEAVEN HILL.

Exhibit D to this Motion are pages excerpted from a twenty page Power Point slide
presentation that has been designated by the Commission as Trial Exhibit PX4741, and which is
identified by “Bates” numbers ranging from HeavenHillPaper 000049 through 000069 in the
lower right hand corners of the pages of the document (Decl. at § 11). These excerpted pages of
the document contain Heaven Hill’s confidential sales figures. The specific pages and

confidential information that Heaven Hill seeks to protect are as follows:

HeavenHillPaper 000053 contains a pie chart graphic that shows

] (a).

HeavenHillPaper 000056 contains [

], a quantification of the sales growth of the product family

between 2000 and 2010, and the [ J. The [

] and includes one

of Heaven Hill’s [ ] dd).

HeavenHillPaper 000057 contains the [
J (id).

HeavenHillPaper 000060 contains the [
] (id).

HeavenHillPaper_ 000062 contains the [

] Ga).

HeavenHillPaper 000063 contains the
] (id).



UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

In The Matter of

Ardagh Group S.A.,
a public limited liability company, and DOCKET NO. 9356
Saint-Gobain Containers, Inc.,
a corporation, and

Compagnie de Saint-Gobain,
a corporation,
Respondents

PROPOSED ORDER

Non-Party Heaven Hill Distilleries, Inc., filed a motion for in camera treatment of
confidential business information contained in certain documents and deposition testimony that
has been identified by counsel for the parties as a potential trial exhibits. After consideration of
the motion and the documents and testimony at issue,

IT IS HEREBY ORDERED that Heaven Hill’s motion is GRANTED. The information
set forth in the documents and testimony listed in the table below will be subject to in camera
treatment under 16 C.F.R. § 3:45(b) and will be kept confidential and not placed on the public

record of this proceeding for a period of five years.

Motion Date Bates Numbers or Deposition ° Contained in Trial
Exhibit Exhibit

B 3/15/2012 HeavenHillEmail00001021 PX4735

Cc 5/22/2012 HeavenHillPaper000028 PX4740



pune ORIGINAL

ZR TRADE Compe.
fess RECEIVED sone

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION Be 765c TOS

OFFICE OF ADMINISTRATIVE LAW JUDGES

In The Matter of

Ardagh Group S.A.,
| a public limited liability company, and DOCKET NO. 9356
i Saint-Gobain Containers, Inc.,
a corporation, and

Compagnie de Saint-Gobain,
| a corporation,
Respondents

NON-PARTY HEAVEN HILL DISTILLERIES, INC.’S MOTION FOR
IN CAMERA TREATMENT OF PROPOSED EVIDENCE

Heaven Hill Distilleries, Inc., which is not a party to the above-captioned matter,
| respectfully requests that this court grant in camera treatment of the following documents and
| deposition testimony that Complaint Counsel and Respondent’s Counsel have recently
| designated for introduction into evidence in the administrative trial in this matter, which is

scheduled to commence on December 19, 2012:

| Motion Date Bates Numbers or Deposition Contained in Trial
Exhibit Exhibit
|
B 3/15/2012 _| HeavenHillEmail00001021 PX4735
Cc 5/22/2012 _| HeavenHillPaper000028 PX4740
D 2012 HeavenHillPaper000056 PX4741
| Heaven HillPaper000057
. Heaven HillPaper000060
Heaven HillPaper000062
HeavenHillPaper000063
HeavenHillPaper000064



PUBLIC

D. Protection for Exhibit D Should Extend For 5 Years.

The nature of the highly confidential information contained in Exhibit D warrants lasting
protection. Maintaining the confidentiality of the information contained in the document is vital
to Heaven Hill’s competitive position and business strategy. Accordingly, Heaven Hill

respectfully requests that Exhibit D be afforded in camera protection for a period of five years.

IV. PUBLIC DISCLOSURE OF EXHIBIT E (DX443) WOULD RESULT IN SERIOUS

COMPETITIVE INJURY TO HEAVEN HILL.

Exhibit E to this Motion has been designated by Ardagh as Trial Exhibit DX443. The
document is a two-page document identified by “Bates” numbers HeavenHillEmail 00000223
and 00000224 in the lower right hand corners of the pages of the document. The document

contains an e-mail [ ] to

Millard Sims, Heaven Hill’s Operations Manager (Decl. at 914). [

] from different manufacturers (/d.). The e-mail at issue

contains the terms of a revised proposal by [ ] to
Heaven Hill [ ] Ud). The e-mail proposal includes a
[

]Ud).

A. Heaven Hill Has Preserved the Confidentiality of Exhibit E and the
Information it Contains.

Heaven Hill is an independent privately owned company and so is not subject to any
requirement for public reporting of its finances, sales, operations, or plans (Decl. at §4). Heaven
Hill does not publicly reveal the contained in Exhibit E (Decl. at 415).
Such information is only disclosed to Heaven Hill executives who have a need to know the

information in order to carry out their job responsibilities, or to specific vendors in connection

12


PUBLIC

, giving those competitors an unfair advantage in [

] Ud). Disclosure of the information in

Exhibit D would reveal to Heaven Hill’s competitors and potential competitors

] Ud). The information in Exhibit D would also reveal to

competitors [

] that Heaven

Hill has conducted (/d.). This knowledge would enable Heaven Hill’s competitors

] Ua).

Cc The Public Interest in Disclosure of Exhibit D is Outweighed by the
Likelihood of Serious Competitive Harm to Heaven Hill.

As a non-party to this matter, Heaven Hill deserves “special solicitude” in requesting in
camera treatment for its confidential business information. In the Matter of Kaiser Aluminum &
Chemical Corp., 103 F.T.C. 500, 500 (1984) (order directing in camera treatment for five-year-
old sales statistics of non-parties). Jn camera treatment of information, for reasonable time
periods encourages non-parties to cooperate with future discovery requests in adjudicate
proceedings. Jd. Heaven Hill has cooperated with the discovery demands in this case.
Conversely, “public understanding of this proceeding does not depend on access to” Heaven
Hill’s highly confidential information. Jd. The balance of interests clearly favors in camera
protection for Exhibit D. See Bristol, 90 F.T.C. at 456 (describing six-factor test for determining

secrecy and materiality).

11


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information in Exhibit C would diminish Heaven Hill’s [

(id). Public disclosure of this information would thus aid Heaven Hill’s

competitors in [ ], giving those

competitors an unfair advantage [

—] Ua).

c. The Public Interest in Disclosure of Exhibit C is Outweighed by the
Likelihood of Serious Competitive Harm to Heaven Hill.

As a non-party to this matter, Heaven Hill deserves “special solicitude” in requesting in
camera treatment for its confidential business information. In the Matter of Kaiser Aluminum &
Chemical Corp., 103 F.T.C. 500, 500 (1984) (order directing in camera treatment for five-year-
old sales statistics of non-parties). In camera treatment of information, for reasonable time
periods encourages non-parties to cooperate with future discovery requests in adjudicate
proceedings. Jd. Heaven Hill has cooperated with the discovery demands in this case.
Conversely, “public understanding of this proceeding does not depend on access to” Heaven
Hill’s highly confidential information. Jd. The balance of interests clearly favors in camera
protection for Exhibit C. See Bristol, 90 F.T.C. at 456 (describing six-factor test for determining
secrecy and materiality).

D. Protection for Exhibit C Should Extend For 5 Years.

The nature of the highly confidential information contained in Exhibit C warrants lasting
protection. Maintaining the confidentiality of the information contained in the document is vital
to Heaven Hill’s competitive position and business strategy. Accordingly, Heaven Hill

respectfully requests that Exhibit C be afforded in camera protection for a period of five years.


PUBLIC

] dd).

Cc. The Public Interest in Disclosure of Exhibit H is Outweighed by the
Likelihood of Serious Competitive Harm to Heaven Hill.

As a non-party to this matter, Heaven Hill deserves “special solicitude” in requesting in
camera treatment for its confidential business information. Jn the Matter of Kaiser Aluminum &
Chemical Corp., 103 F.T.C. 500, 500 (1984) (order directing in camera treatment for five-year-
old sales statistics of non-parties). Jn camera treatment of information, for reasonable time
periods encourages non-parties to cooperate with future discovery requests in adjudicate
proceedings. Jd. Heaven Hill has cooperated with the discovery demands in this case.
Conversely, “public understanding of this proceeding does not depend on access to” Heaven
Hill’s highly confidential information. Jd. The balance of interests clearly favors in camera
protection for Exhibit H. See Bristol, 90 F.T.C. at 456 (describing six-factor test for determining
secrecy and materiality).

D. Protection for Exhibit H Should Extend For 5 Years.

The nature of the highly confidential information contained in Exhibit H warrants lasting
protection. Maintaining the confidentiality of the information contained in the document is vital
to Heaven Hill’s competitive position and business strategy. Accordingly, Heaven Hill

respectfully requests that Exhibit H be afforded in camera protection for a period of five years.

22


PUBLIC

A. Heaven Hill Has Preserved the Confidentiality of Exhibit B and the
Information it Contains.

Heaven Hill is an independent privately owned company and so is not subject to any
requirement for public reporting of its finances, sales, operations, or plans (Decl. at 74). It does

not publicly reveal its [ ] nor the

L ] Ud). Such information is

only disclosed to Heaven Hill executives who have a need to know the information in order to
carry out their job responsibilities (Jd). The information is not known outside of Heaven Hill
except to the extent necessary to engage in negotiations with| , and it would be
extremely difficult for Heaven Hill’s competitors or other outside persons to access or duplicate
the information contained in the document at issue (/d.). Heaven Hill has gone through great
lengths to preserve the confidentiality of the information contained in Exhibit B.

B. Disclosure of the Information Contained in Exhibit B Would Result in
Serious Competitive Injury to Heaven Hill.

Disclosure of the information in Exhibit B could result in serious damage to Heaven
Hill’s competitive advantage in the marketplace (Decl. at 6). The information on
in Exhibit B would enable manufacturers of competing brands to

ascertain with some certainty [

] Ud). This information cannot be ascertained

by Heaven Hill’s competitors through any proper means (Id). Knowledge of
would be invaluable information for any competitor who is planning, or who

might contemplate, [ ]. Public disclosure of

this information would enable Heaven Hill’s competitors to ascertain Heaven Hill’s s,

and to thereby anticipate [



PUBLIC

Vv. PUBLIC DISCLOSURE OF EXHIBIT F (DX364) WOULD RESULT IN SERIOUS

COMPETITIVE INJURY TO HEAVEN HILL,

Exhibit F to this Motion has been designated by Ardagh as Trial Exhibit DX364. The
document is an e-mail from Heaven Hill’s President, Max Shapira, to Heaven Hill’s Vice
President of Marketing, Kate Latts, with copies sent to Heaven Hill’s Chief Operating Officer,
Allan Latts, its Director of Corporate Analysis, Andy Shapira, its Vice President of North
American Sales, Steve Feller, and its Vice President and Plant Manager, David Hobbs. Ms. Latts

then forwarded Mr. Shapira’s e-mail to [

] (Decl. at $17). The document is identified by

“Bates” number HeavenHillEmail 00000396 in the lower right hand corner of the document.

The text of Exhibit F reflects [

J (a).

The text of the e-mail reflects [

] dad).

A. Heaven Hill Has Preserved the Confidentiality of Exhibit F and the
Information it Contains.

Heaven Hill is an independent privately owned company and so is not subject to any
requirement for public reporting of its finances, sales, operations, or plans (Decl. at 94). Heaven
Hill does not publicly reveal the decision making process or the factors that it considers in

L ] such as those reflected in Exhibit F (Decl. at 418).

(id). Heaven Hill’s internal processes and discussion regarding

are highly proprietary and are only disclosed to Heaven Hill executives who have a

15


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] (ia).

Cc. The Public Interest in Disclosure of Exhibit F is Outweighed by the
Likelihood of Serious Competitive Harm to Heaven Hill.

As a non-party to this matter, Heaven Hill deserves “special solicitude” in requesting in
camera treatment for its confidential business information. In the Matter of Kaiser Aluminum &
Chemical Corp., 103 F.T.C. 500, 500 (1984) (order directing in camera treatment for five-year-
old sales statistics of non-parties). In camera treatment of information, for reasonable time
periods encourages non-parties to cooperate with future discovery requests in adjudicate
proceedings. Jd Heaven Hill has cooperated with the discovery demands in this case.
Conversely, “public understanding of this proceeding does not depend on access to” Heaven
Hill’s highly confidential information. Id. The balance of interests clearly favors in camera
protection for Exhibit F. See Bristol, 90 F.T.C. at 456 (describing six-factor test for determining
secrecy and materiality).

D. Protection for Exhibit F Should Extend For 5 Years.

The nature of the highly confidential information contained in Exhibit F warrants lasting
protection. Maintaining the confidentiality of the information contained in the document is vital
to Heaven Hill’s competitive position and business strategy. Accordingly, Heaven Hill

respectfully requests that Exhibit F be afforded in camera protection for a period of five years.

VI. PUBLIC DISCLOSURE OF EXHIBIT G (DX388) WOULD RESULT IN SERIOUS

COMPETITIVE INJURY TO HEAVEN HILL.

Exhibit G to this Motion has been designated by Ardagh as Trial Exhibit DX388. The

document is a copy of Heaven Hill’s current contract with , and is

identified by “Bates” numbers HeavenHillPaper 0000145 to 000147 in the lower right hand

17


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In this context, “the courts have generally attempted to protect confidential business information
from unnecessary airing.” H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961).

Six factors will be weighed in determining whether the document in question is
sufficiently material and sufficiently secret that disclosure would result in serious competitive
injury:

(1) the extent to which the information is known outside of the
applicant’s business; (2) the extent to which the information is
known by employees and others involved in the applicant’s
business; (3) the extent of measures taken by the applicant to guard
the secrecy of the information; (4) the value of the information to
the applicant and its competitors; (5) the amount of effort or
money expended by the applicant in developing the information;
and (6) the ease or difficulty with which the information could be
properly acquired or duplicated by others.

Dura Lube Corp. 1999 F.T.C, LEXIS 255 at *6-*7 (quoting Bristol-Meyers Co., 90 F.T.C. 455,
456 (1977)).

IL. PUBLIC DISCLOSURE OF EXHIBIT _B_(PX4735)_ WOULD RESULT _IN
SERIOUS COMPETITIVE INJURY TO HEAVEN HILL.

Exhibit B to this Motion has been designated by the Commission as Trial Exhibit
PX4735, and is identified by “Bates” number HeavenHillEmail 000001021 in the lower right
hand comer of the document. The document is an internal Heaven Hill document that contains a

[ ] to Heaven Hill dated March 15,

2012 (Ex. A, Shapira Decl. 95). The document reveals Heaven Hill’s

] along with a comparison of
] Decl. at 75).



Motion Date Bates Numbers or Deposition Contained in Trial
Exhibit Exhibit
D 2012 HeavenHillPaper000056 PX4741
Heaven HillPaper000057
Heaven HillPaper000060
Heaven HillPaper000062
HeavenHillPaper000063
HeavenHillPaper000064
E 11/18/2011 | HeavenHillEmail00000223 through DXx443
Heaven HillEmail00000224
F 2/17/2011 HeavenHillEmail00000396 DX364
G Executed HeavenHillPaper000145 through DX388
9/26/2011 HeavenHillPaper000146
H 8/26/2013 Deposition of Max L. Shapira, PX 6057
Page 41, line 17 and lines 21 through 24
Page 85, line 16
Page 108, lines 2 through 5

IT IS FURTHER ORDERED that only authorized Federal Trade Commission personnel,

and court personnel concerned with judicial review may have access to the above-referenced

information, provided that I, the commission, and reviewing courts may disclose such in camera

information to the extent necessary for the proper disposition of the proceeding.

If the Commission intends to disclose any of the above listed documents or testimony in a

final decision then the Commission shall first give written notice to:

David A. Calhoun

Wyatt, Tarrant & Combs, LLP
500 W. Jefferson Street, Suite 2800
Louisville, Kentucky 40202

dcalhoun@wyattfirm.com
(502) 562-7350

DATED:

61068208. 1

ORDERED:

Administrative Law Judge


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Motion Date Bates Numbers or Deposition Contained in Trial
Exhibit Exhibit
E 11/18/2011 | HeavenHillEmail00000223 through Dx443
Heaven HillEmail00000224
F 2/17/2011 HeavenHillEmail00000396 DX364
G Executed HeavenHillPaper000145 through DX388
9/26/2011 HeavenHillPaper000146
H 8/26/2013 | Deposition of Max L. Shapira, PX 6057
Page 41, line 17 and lines 21 through 24
Page 85, line 16
Page 108, lines 2 through 5

The information contained in these documents and testimony is competitively sensitive
and is held in strict confidence by Heaven Hill. Public disclosure of these documents is likely to
cause direct, serious harm to Heaven Hill’s competitive position. Therefore, pursuant to 16
C.F.R. § 3:45(b), Heaven Hill respectively moves for in camera treatment of these documents
and testimony for the reasons set out below and in the Declaration of Max L. Shapira which is
tendered in support of this Motion and which is attached hereto as Exhibit A.

HEAVEN HILL’S CONFIDENTIAL DOCUMENTS AND MR. SHAPIRA’S CITED

TESTIMONY QUALIFY FOR IN CAMERA TREATMENT UNDER
THE FEDERAL TRADE COMMISSION’S RULES OF PRACTICE

The documents and testimony that are described in this motion warrant in camera
treatment as provided by 16 C.F.R. § 3:45(b). The code section provides for in camera
treatment of certain business-related information and personal information. Relating to business
issues, under 16 C.F.R. § 3:45(b), requests for in camera treatment will be granted where public
disclosure of the document in question “will result in a clearly defined, serious injury to the. .
corporation requesting in camera treatment.” Id. That showing can be made by establishing
that the document in question is “sufficiently secret and sufficiently material to the applicant’s
business that disclosure would result in serious competitive injury.” In re Dura Lube Corp. 1999

F.T.C. LEXIS 255, *6 (Dec. 23, 1999) (quoting General Foods Corp., 95 FTC 352, 355 (1980)).


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with contract negotiations or contract fulfillment (/d). In each instance with the sales

information contained in Exhibit E is disclosed to a vendor Heaven Hill

] Ud). It would be

extremely difficult for Heaven Hill’s competitors or other outside persons to access or duplicate
the information contained in the document at issue (/d,). Heaven Hill has gone through great
lengths to preserve the confidentiality of the information contained in Exhibit E.

B. Disclosure of the Information Contained in Exhibit E Would Result in
Serious Competitive Injury to Heaven Hill.

Disclosure of the information in Exhibit E could result in serious damage to Heaven
Hill’s competitive advantage in the marketplace (Decl. at 16). Depending upon the category of

spirit [ ] and [

J and asa minimum[_

] Ud). The prices Heaven Hill pays for bottles are
[ ] dd.).

Public disclosure of [ ] would tend to reduce price competition

between bottle suppliers (/d.). Disclosure of Exhibit E would afford both bottle suppliers and

Heaven Hill’s competitors [

Ud.). Tt could give Heaven Hill’s competitors an unfair advantage in

] Gd). Also included in Exhibit E is proprietary information

about Heaven Hill’s [__ ] dd).

Public disclosure of this information would afford Heaven Hill’s competitors information they

could use to [__

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need to know the information in order to carry out their job responsibilities (Jd). It would be
extremely difficult, if not impossible, for Heaven Hill’s competitors or other outside persons to
access or duplicate the information contained in the document at issue (/d,). Heaven Hill has
gone through great lengths to preserve the confidentiality of the information contained in Exhibit
F.

B. Disclosure of the Information Contained in Exhibit F Would Result in
Serious Competitive Injury to Heaven Hill.

Disclosure of the information in Exhibit F would result in serious damage to Heaven

Hill’s competitive advantage in the marketplace (Decl. at 19). Exhibit F reveals

da). [

] Ud). Exhibit F reveals

L ] is relevant in Heaven Hill’s
(id). Public disclosure of the information in Exhibit F would reveal Heaven

Hill’s internal discussion and consideration of [

(d.). Public disclosure of the information in Exhibit F would enable Heaven

Hill’s competitors [ ], giving those

competitors an unfair advantage [ J

(id). Public disclosure of the information in Exhibit F could therefore

] Ud). This could deprive Heaven Hill of the

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