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ATTORNEYS & COUNSELORS

~

Mattew J. Swantner

(210) 978-7782 (Direct Dial)

(210) 242-4667 (Direct Fax)

mswantner@jw.com

JACKSON WALKER L.L.P.

December 6, 2013

ORIGINAL .im..-

Via Federal Express

7973 3183 3816

Donald S. Clark

Office of the Secretary

Federal Trade Commission

Room H-l13

600 Pennsylvania Avenue, NW

Washington, D.C.

Re: Docket No. 9356; In the Matter of Ardagh Group s.A., and Saint-Gobain Containers,

Inc. and Compagnie de Saint-Gobain

Dear Mr. Clark:

Enclosed are the following documents for fiing with the Federal Trade Commission in

the above-referenced matter:

1. Motion of Non-Pary Gambrinus Company for In Camera Treatment of Certain

Proposed Evidence (In Camera Version); and

2. Motion of Non-Pary Gambrinus Company for In Camera Treatment of Certain

Proposed Evidence (Public Version). '.

I have enclosed an original, one copy, and an electronic copy of each. I have also

enclosed a self-addressed and stamped envelope so that you can retu a fie-stamped copy to

me. If you have any questions or concerns about this filing, please feel free to contact me af21 0-

978-7782.

Than you for your assistance.

"'

Matthew J. Swantner

112 E. Pecan Street, Suite 2400 San Antonio, Texas 78205 (210) 978-7700 fax (210) 978-7790

WwW.jW.Ç,Oll.Auôtin.Dalias

~8ó2745v.i 10 923/00057 Fort Worth Houston San Angelo San Antonio Member of GLOBALAwsM
December 6, 2013

Page 2

MJS:reg

Enclosures

cc: The Honorable D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW H-IIO

Washington, DC 20580

(Via Federal Express 7973 3187 5400)

Wayne Dale Collns

Shearan & Sterling LLP

599 Lexington Avenue

New York, NY 10022

(Via Federal Express 7973 3192 5968)

Edward D. Hassi

Chief Litigation Counsel

Federal Trade Commission

Bureau of Competition

600 Pennsylvania Ave., NW

Washington, DC 20580

(Via Federal Express 7973 3196 1885)

9862745v. i 100923/00057
PUBLIC VERSION

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION ORIGINAL

DOCKET NO. 9356

In the Matter of

Ardagh Group S.A.,

a public limited liabilty company, and

Saint-Gobain Containers, Inc.,

a corporation, and

Compagnie de Saint-Gobain,

a corporation,

Respondents.

MOTION OF NON-PARTY GAMBRINUS COMPANY FOR IN CAMERA

TREATMENT OF CERTAIN PROPOSED EVIDENCE

The Gambrinus Company ("Gambrinus"), which is a non-party in the above-captioned

matter, respectfully requests this Cour to grant in camera treatment of several confidential

documents and certain confidential testimony designated by the FTC and/or Respondents for

introduction into evidence in the administrative trial of this matter and would respectfully show

as follows:

I. ARGUMENT & AUTHORITIES

Gambrinus currently operates the Spotezl Brewery in Shiner, Texas, the Bridgeport

Brewery in Portland, Oregon, and the Truer Brauerei in Berkley, California. In response to

subpoenas received from the FTC and Respondents, Gambrinus produced 461 pages of

commercially sensitive business records related to its brewing and bottling operations.

Subsequently, on August 16,2013, the FTC and Respondents took the deposition of John Horan,

who was designated by Gambrinus as a corporate representative to testify about issues related to

the above-referenced proceeding. The testimony provided by John Horan and the documents

produced by Gambrinus were all designated as confidential pursuant to the Protective Order

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9849801 v.2 100923/00057
PUBLIC VERSION

entered in Civil Action No. 13-1021 styled Federal Trade Commission v. Ardagh Group S.A., et

al., in the United States District Court for the District of Columbia.

Recently, Gambrinus received notice that the FTC and Respondents intend to use

certain confidential documents and testimony in the upcoming administrative trial of this matter.

By this Motion, Gambrinus seeks protection of a small number of these confidential documents

along with a small portion of this testimony pursuant to 16 CFR §3.45(b), which provides for in

camera treatment of business information where disclosure "wil likely result in clearly defined,

serious injur to the person or corporation whose records are involved." HP. Hood and Sons,

Inc., 58 FTC 1184, 1188 (1961). This showing can be made by establishing the document in

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

would result in serious competitive injur." In re Dura Lube Corp., 1999 FTC Lexis 255, at *6

(Dec. 23, 1999) (quoting General Foods Corp., 95 FTC 352, 355 (1980)). Under these

circumstances "courts generally attempt to protect confidential business information from

unecessary airing." HP. Hood and Sons, Inc., 58 FTC at 1188.

The six factors to be weighed in determining whether the documents in question are

sufficiently material and secret that disclosure would result in serious competitive injur are:

(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 applicants to guard the secrecy of the

information;

(4) The value of the information to the applicant and its competitors;

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9849801 v.2 100923/00057
PUBLIC VERSION

(5) The amount of effort or money expended by the applicant in developing the

information; and

(6) The ease or difficultly with which the information could be acquired or duplicated

by others.

Dura Lube Corp., 1999 FTC LEXIS 255, at *6-7 (quoting Bristol Meyers Co., 90 FTC 455, 456-

57 (1977)). Furthermore, a nonpary requesting in camera treatment deserves "special

solicitude" for its confidential business information. In the matter of Kaiser Aluminum and

Chemical Corporation, 103 FTC 500, at *1 (1984) (directing in camera treatment for sales

statistics over five years old).

A. Gambrinus' Document Production

F or the reasons set forth herein, Gambrinus seeks in camera treatment of the following

documents attached hereto as Exhibit B which have been identified by the FTC and/or

Respondents for use at the administrative trial of this matter:

. Texas Pricing Information at Gambrinus 000005 to Gambrinus 000010;

· Glass Container Supply Agreement at Gambrinus 000352 to 000365;

· "Proposed" Commercial Terms Agreement at Gambrinus 000367 to Gambrinus

000369; and

· Glass Shortage Communications at Gambrinus 000378 and Gambrinus 000415.

Gambrinus has taken substantial measures to guard the highly confidential and

commercially sensitive information contained in the documents identified above and attached as

Exhibit B in order to prevent serious competitive injury to Gambrinus. (See Declaration of John

Horan at Exhibit A).

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9849801 v.2 100923/00057
PUBLIC VERSION

"'.

More specifically, the Texas Pricing Information at Gambrinus 000005 to Gambrinus

000010 details the prices charged to various distributors for Gambrinus' products. Gambrinus

purposefully keeps this information confidential given that its competes with other breweries on

price. Gambrinus also keeps this information confidential to prevent its competitors from

undercutting the prices that Gambrinus charges to its distributors. Accordingly, Gambrinus

limits the disclosure of its pricing information to a limited number of Gambrinus employees and

the indicated third parties that contract with Gambrinus. Otherwise, this information is

unavailable to the public. If the Texas Pricing Information at Gambrinus 000005 to Gambrinus

000010 were disclosed to Gambrinus' competitors and distributors, it could be used to unfairly

compete and negotiate against Gambrinus and could cause Gambrinus serious competitive

injury. (See Declaration of John Horan at Exhibit A).

The highly confidential and commercially sensitive information contained in the Glass

Container Supply Agreement at Gambrinus 000352 to Gambrinus 000365 and "Proposed"

Commercial Terms Agreement at Gambrinus 000367 to Gambrinus 000369 includes details

regarding the purchase and pricing of glass bottles for use in Gambrinus' current and future

operations. This information is the result of extensive negotiations between Gambrinus and its

glass supplier and is highly confidential and commercially sensitive given that its disclosure

would reveal valuable information that Gambrinus' competitors could use in their own

negotiations with glass suppliers. It also reveals sensitive information regarding the maner in

which Gambrinus structures it contracts with glass suppliers. Gambrinus' negotiation efforts

with respect to these documents have allowed it to gain a competitive advantage in the

marketplace. This information is not publically available as Gambrinus limits the disclosure of

the documents at Gambrinus 000352 to Gambrinus 000365 to a very limited number Gambrinus

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9849801 v.2 100923/00057
PUBLIC VERSION

employees and third-parties that Gambrinus contracts with. Additionally, Gambrinus is

contractually obligated to maintain the confidentiality of the information contained in both of

these documents as indicated in Section 8 of the Glass Container Supply Agreement (see

Gambrinus 000358 to Gambrinus 000359 at Exhibit B) and Page 3 of the "Proposed"

Commercial Terms Agreement (see Gambrinus 000369 at Exhibit B). (See Declaration of John

Horan at Exhibit A).

Also, the highly confidential and commercially sensitive information included in the

Glass Shortage Communications at Gambrinus 000378 and Gambrinus 000415 relates to the

structure of Gambrinus' contracts with glass suppliers and includes explicit statements regarding

Gambrinus' long-term strategy for the negotiation of future contracts with glass suppliers. Both

of these communications are addressed to specific individuals and were not otherwise disclosed

except to senior employees at Gambrinus. The disclosure of the information in the Glass Storage

Communications could result in a serious competitive disadvantage to Gambrinus in the

marketplace. (See Declaration of John Horan at Exhibit A).

B. The John Horan Testimony

Gambrinus also seeks in camera treatment of the following testimony included in the

documents attached hereto as Exhibit C which has been identified by the FTC and/or

Respondents for use at the upcoming administrative trial of this matter (the "John Horan

Testimony"):

· John Horan Declaration dated May 17,2013 at 'i'i6-7; and

· John Horan Deposition dated August 16, 2013 at 40:8 to 40:12, 40:20 to 40:22,

74:12 to 74:14, 136:1 to 142:25.

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9849801 v.2 100923/00057
PUBLIC VERSION

The John Horan Testimony includes highly confidential and commercially sensitive

information regarding the amount of money that Gambrinus spent on glass bottles and aluminum

cans in 2012 and information similar to the Glass Shortage Communications identified above.

Information regarding the amount of money that Gambrinus spent on aluminum cans and glass

bottles is not made public by Gambrinus because it could be used in conjunction with public

information regarding Gambrinus' sales volume to calculate the purchase price for individual

. glass bottles and aluminum cans used in Gambrinus' operations. Oambrinus maintains the

confidentiality of this pricing information, including within Gambrinus itself, because it devotes

substantial time and effort to the negotiation of these prices in order to be competitive in its

marketplace. If disclosed, this information could be used by Gambrinus' competitors for their

own advantage in negotiating similar contracts with aluminum can and glass suppliers to the

detriment of Gambrinus. (See Declaration of John Horan at Exhibit A).

Also, similar to the Glass Shortage Communications discussed above, the testimony in

John Horan's deposition at 136: 1 to 142:25 relates to the structure of Gambrinus' contracts with

glass suppliers and problems that Gambrinus has had with glass suppliers in the past. The

information included in this testimony is not known outside of a limited number of Gambrinus'

employees and if disclosed could result in a serious competitive disadvantage to Gambrinus in

the marketplace. (See Declaration of John Horan at Exhibit A).

II. CONCLUSION

The nature of the highly confidential information contained in Exhibits B and C warants

lasting protection. Information contained in these documents, which includes competitively

sensitive contracts, pricing information, and business strategy, is vital to Gambrinus' competitive

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9849801 v.2 100923/00057
PUBLIC VERSION

position. Accordingly, Gambrinus respectfully requests that Exhbits Band C be afforded in

camera protection for a period of five years.

Respectfully submitted,

JACKSON WALKER L.L.P.

112 East Pecan Street, Suite 2400

San Antonio, Texas 78205

(210) 978-7700

(210) 978-7790 - fax

Email: mswantner@jw.com

BY(' \' \ ;: I~L

'Mewan n;o .

Texas Bar No. 24066169

ATTORNEYS FOR THE GAMBRIUS

COMPANY

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9849801 v.2 100923/00057
PUBLIC VERSION

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on December 6, 2013, the foregoing was served the

following in the maner indicated:

VIA FEDERAL EXPRESS

(Original, one copy, and electronic copy)

Donald S. Clark

Office of the Secretary

Federal Trade Commission

RoomH-113

600 Pennsylvania Avenue, NW

Washington, D.C. 20580

VIA FEDERAL EXPRESS

(One copy and electronic copy)

The Honorable D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW H-IIO

Washington, DC 20580

VIA FEDERAL EXPRESS

(One copy)

Wayne Dale Collins

Shearan & Sterling LLP

599 Lexington Avenue

New York, NY 10022

VIA FEDERAL EXPRESS

(One Copy)

Edward D. Hassi

Chief Litigation Counsel

Federal Trade Commission

Bureau of Competition

600 Pennsylvania Ave., NW

Washington, DC 20580

( .\ t '~

.. ar ew J." war' er~

Page 8

9849801 v.2 100923/00057
PUBLIC VERSION

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

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.

PROPOSED ORDER

On December 9, 2013, the Gambrinus Company ("Gambrinus"), a non-pary, filed its

Motion for In Camera Treatment of Certain Proposed Evidence (the "Motion").

IT IS HEREBY ORDERED that Gambrinus' Motion is GRANTED. The following

information in the documents attached as Exhibit B and Exhibit C to the Motion wil be subject

to in camera treatment under 16 C.F.R. § 3.45 and wil be kept confidential for a period of five

years: Gambrinus 000005 to Gambrinus 000010; Gambrinus 000352 to 000365; Gambrinus

000367 to Gambrinus 000369; Gambrinus 000378 and Gambrinus 000415; John Horan

Declaration dated May 17,2013 at 'i'i6-7; and John Horan Deposition dated August 16,2013 at

40:8 to 40:12, 40:20 to 40:22, 74:12 to 74:14, 136:1 to 142:25.

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9849801 v.2 100923/00057
PUBLIC VERSION

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

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

information.

ORDERED:

D. Michael Chappell

Administrative Law Judge

Dated:

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9849801 v.2 100923/00057
PUBLIC VERSION

Exhibit A

9849801 v.2 100923/00057
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

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,

Res ondents.

DECLARATION OF JOHN HORAN IN SUPPORT OF MOTION OF NON-PARTY

GAMßRINUS COMPANY FOR IN CAMERA TREATMENT OF CERTAIN PROPOSED

EVIDENCE

r, John Horan, declare and state as follows:

1. I am the Director of Tax and Assistant Treasurer for the Gambrinus Company

("Gambrinus"). My responsibilties include evaluating contracts for the purchase of our

packaging materials, such as glass bottes and a1tuninum cans. Gambrinus was founded in 1986

as the original American importer for Grupo Modelo. Today, Gambrinus operates three

breweries in the U.S.: our Spotezl Brewery in Shiner, Texas, the Bridgeport Brewery in Portland,

Oregon, and the Trumer Brauerei in Berkley, California. We compete with breweries such as

New Belgium, Sam Adams, and Sierra Nevada.

2. Gambrinus has taken substantial measures to guard the lugh1y confidential and

commercially sensitive information contained in Exhibits Band C by limiting the dissemination

of such information and taking every reasonable step to protect its confidentiality.

3. More specifically, the Texas Pricing Information at Gainbrinus 000005 to

Gainbrinus 000010 details the prices charged to various distributors for Gambrinus' products.

Page 1

984980 I Y.2 100923/00057
Gambrinus purposefully keeps this information confidential given that its competes with other

breweries on price. Gambrinus also keeps this information confidential to prevent its

competitors from undercutting the prices that Gambrinus charges to its distributors.

Accordingly, Gambrinus limits the disclosure of its pricing information to a limited number of

Gambrinus employees and the indicated tlurd parties that contract with Gambrinus. Otherwise,

this information is unavailable to the public. If the Texas Pricing Information at Gambrinus

000005 to Gambrinus 000010 were disclosed to Gambrinus) competitors and distributors, it

could be used to iinfairly compete and negotiate against Gambrinus and could cause Gambrinus

serious competitive injury.

4. The highly confdential and commercially sensitive information contained in the

Glass Container Supply Agreement at Gambrinus 000352 to Gambrinus 000365 and "Proposed"

Commercial Terms Agreement at Gambrinus 000367 to Gambrinus 000369 includes details

regarding the purchase and pricing of glass bottles for use in Gambrinus' current and future

operations. This information is the result of extensive negotiations between Gambrinus and its

glass supplier and is highly confidential and cqmmercially sensitive given that its disclosure

would reveal vahiable information that Gambrimis) competitors could use in their own

negotiations with glass suppliers. It also reveals sensitive information regarding the manner in

which Gambrinus structures it contracts with glass suppliers. Gambrinus' negotiation efforts

with respect to these documents have allowed it to gain a competitive advantage in the

marketplace. This information is not publically available as Gambrinus limits the disclosiire of

the documents at Gambrinus 000352 to Gallbrinus 000365 to a very limited number Gambrinus

employees and third-parties that Gambrinus contracts with. Additionally, Gambrimis is

contractually obligated to maintain the confidentialiy of the information contained in both of

Page 2

9849801 v.2 100923/00057
these documents as indicated in Section 8 of the Glass Container Supply Agreement (see

Gambrinus 000358 to Gambrinus 000359 at Exhibit B) and Page 3 of the "Proposed"

Commercial Terms Agreement (see Gambrinus 000369 at Exhibit B).

5. Also, the highly confidential and commercially sensitive information included in

the Glass Shortage Communications at Gambrinus 000378 and Gambrinus 000415 relates to the

structure of Gambrinus' contracts with glass suppliers and includes explicit statements regarding

Gambrimis' long-term strategy for the negotiation of future contracts with glass suppliers. Both

of these conummications are addressed to specific individuals and were not otherwise disclosed

except to senior employees at Gambriiius. The disclosure of the information in the Glass Storage

Communications could result in a serious competitive disadvantage to Gambrimis in the

marketplace.

6. The John Horan Testimony includes highly confidential and commercially

sensitive information regarding the amount of money that Gambrinus spent on glass bottles and

aluminum cans in2012 and information similar to the Glass Shortage Communications identified

above. Information regarding the amount of money that Gambrinus spent on aluminum cans and

glass bottles is not made public by Gambrinus because it could be used in conjunction with

public information regarding Gambrinus' sales volume to calculate the purchase price for

individual glass bottles and aluminum cans 1.1sed in Gambrinus' operations. Gambrinus

maintains the confidentiality of this pricing information, including within Gambrinus itself,

because it devotes substantial time and effoit to the negotiation of these prices in order to be

competitive in its marketplace. If disclosed, this information could be used by Gambrinus'

competitors for their own advantage in negotiating similar contracts with aluminum can and

glass suppliers to the detriment of Gambrimis.

Page 3

984980 I v.2 100923/00057
7. Also, similar to the Glass ShOltage Communications discussed above, the

testimony in John Horan's deposition at 136:1 to 142:25 relates to the structure of Gambrinus'

contracts with glass suppliers and problems that Gambrinus has had with glass suppliers in the

past. The information included in this testimony is not known outside of a limited number of

Gambrinus' employees and if disclosed could result in a serious competitive disadvantage to

Gambrinus in the marketplace.

I declare under penalty of peijury that the foregoing is true and correct.

----

John Horan

Signed this 6th day of December 2013.

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9849801 v.2 100923/00057

PUBLIC VERSION

Exhibit B

Gambrinus' Document Production

(REDACTED FROM PUBLIC VERSION)
9849801 v.2 100923/00057

PUBLIC VERSION

Exhibit C

John Horan Testimony

(REDACTED FROM PUBLIC VERSION)