In the Matter of 

Ardagh Group S.A., 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSIO 

OFFICE OF ADMINISTRATIVE LAW JUDGE 

PUBLIC 

a public limited liability company, and 

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Docket No. 9356 

Saint-Gobain Containers, Inc., 

a corporation, and 

Compagnie de Saint-Gobain, a corporation. 

MOTION OF NON-PARTY 

FEVISA INDUSTRIAL, S.A. de C.V. 

FOR IN CAMERA TREATMENT OF PROPOSED EVIDENCE 

I. Introduction 

567667 

Non-party Fevisa Industrial, S.A. de C.V. ("Fevisa"), through its undersigned counsel, 

respectfully submits this motion pursuant to Rule 3.45(b) of the Federal Trade Commission 

Rules of Practice, 16 C.F.R. § 3.45(b), and requests that this Court grant in camera treatment to 

the two documents, PX4018 and PX4046, which Complaint Counsel has designated for possible 

introduction into evidence. 

Fevisa is not a party to the above-captioned action. Fevisa produced the documents at 

issue in response to Complaint Counsel's request during Complaint Counsel's non-public 

investigative phase and long before Complaint Counsel filed its Complaint. Complaint Counsel 

sent Fevisa the original request on March 13, 2013 and stated the information Fevisa provided 

would be afforded confidential treatment. Fevisa then disclosed the two documents at issue, 

which detail highly sensitive and confidential information regarding Fevisa's exports to the 
United States, production capacities, and prices. On July 18, 20q, Fevisa reit~rated by letter 

emailed to Complaint Counsel that confidential treatment of the information was requested. 

By letter dated November 19, 2013, Complaint Counsel notified Fevisa that it intends to 

introduce into evidence PX4018 and PX4046. Accordingly, Fevisa now moves for in camera 

treatment under Rule 3.45(b). Fevisa requests in camera treatment be extended indefinitely to 

the portions of these documents relating to Fevisa's production capacity, and for five (5) years to 

those portions addressing Fevisa's annual United States exports, its volume/gross, its gross/price, 

and its percentage of exports to United States customers. 

II. Legal Standard for In Camera Treatment 

Materials merit in camera treatment when their disclosure would "result in a clearly 

defined, serious injury to the person or corporation whose records are involved." HP. Hood & 

Sons, Inc., 58 F.T.C. 1184, 1188 (1961); see also 16 C.F.R. § 3.45(b). An applicant for in 

camera treatment can demonstrate serious injury by showing that the information at issue is 

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

result in serious competitive injury." In re General Foods Corp. , No. 9085 95 F.T.C. 352, 355, 

1980 WL 338997, at *4 (1980); In re Bristol-Myers Co. , 90 F.T.C. 455,456 (1977). 

In considering whether to grant in camera treatment, the following factors are weighed: 

(1) the extent to which the information is known outside the applicant's business; (2) the extent 

to which it 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 him and to his competitors; (5) the amount of effort or money expended by him in 

developing the information; and (6) the ease or difficulty with which the information could be 

properly acquired or duplicated by others. Bristol-Myers, 90 F.T.C. at 456-57. 

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Administrative law judges have broad discretion in applying these factors to determine 

whether information warrants in camera treatment. General Foods Corp., 1980 WL 338997, at 

*2. Moreover, a non-party requesting in camera treatment deserves "special solicitude" for its 

confidential business information. See In re Kaiser Aluminum & Chemical Co., 103 F.T.C. 500 

(1984); In re Crown Cork & Seal Co., 71 F.T.C. 1714 (1967) ("[P]etitioner's plea warrants 

special solicitude coming as it does from a third-party bystander in no way involved in the 

proceedings [.] "). 

The Commission has recognized that it may be appropriate to provide in camera 

treatment for certain business records. See, e.g., In re McWane, Inc. , No. 935 1, 2012 WL 

3862131, at *2 (F.T.C. Aug. 17, 2012); In re Champion Spark Plug Co., 1982 F.T.C. LEXIS 85, 

at *2 (Apr. 5, 1982); Hood, 58 F.T.C. at 1188-89; Kaiser Aluminum, 103 F.T.C. at 500. "Where 

in camera treatment is granted for business records, such as business strategies, marketing plans, 

pricing policies, or sales documents, it is typically provided for two to five years." Me Wane, Inc., 

No. 9351, 2012 WL 3862131, at *2. Indefinite in camera treatment may be granted, however, 

when the competitive sensitivity or the proprietary value of the information will not necessarily 

diminish over time. In re Coca Cola Co., No. 9207, 1990 WL 10081418, at *3 (F.T.C. Oct. 17, 

1990) (quoting 54 Fed. Reg. 49,278-79 (Nov. 30, 1989)). 

ID. The Fevisa Documents Satisfy the Standard for In Camera Treatment 

The standard for in camera treatment has been satisfied with respect to PX4018 and 

PX4046, because the information contained in each of these documents is confidential and its 

disclosure would cause serious competitive harm to Fevisa. See General Foods Corp., 95 F.T.C. 

at 355. As the accompanying Declaration of Juan R. Silva G., Executive Vice-President of 

Fevisa, explains, Fevisa expends considerable resources ensuring the information contained in 

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these two documents remains secret. Furthermore, it would be very difficult for Fevisa's 

competitors or customers to obtain this information independently. 

Each of these documents contains highly sensitive information detailing Fevisa's annual 

exports to the United States, its production capacity, and its percentage of exports to United 

States customers, broken down by market sector (beer, wine, and wine coolers). PX4046 

additionally contains detailed information regarding Fevisa's volume/gross and price/gross. 

This information by its nature could subject Fevisa to serious competitive harm if 

disclosed. See McWane, Inc. , 2012 WL 3862131, at *3-4 (finding documents containing 

"customer data, pricing and cost information" warranted in camera treatment); General Foods 

Corp., 96 F.T.C. at 169 n.4 (noting " [r]ecent sales and profit data generally suggest themselves 

as being both secret and material to the firm concerned"). Fevisa's competitors would gain a 

significant business advantage - at Fevisa's expense- if this information were disclosed, as they 

would be unfairly equipped to compete with Fevisa, and could exploit knowledge regarding 

Fevisa's production capacity in their own negotiations with customers. Similarly, existing or 

potential customers to whom this information were disclosed would gain significant leverage in 

future negotiations with Fevisa. 

Moreover, Fevisa takes great pains to ensure the confidentiality of its contracts with 

customers. Were the information in PX4018 and PX4046 to be disclosed, Fevisa would face 

irreparable damage to its customer relationships. Disclosure of this critical information would 

thus be highly detrimental to Fevisa. 

Furthermore, the public's "understanding of this proceeding does not depend on access to 

these data." Kaiser Aluminum, 103 F.T.C. at 500. Fevisa does not have a business relationship 

with any of the named parties involved in this litigation. Indeed, Fevisa has no direct presence in 

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the United States at all, as its products are exported to the U.S. Thus, sensitive information 

regarding the details of its prices, production, and United States exports will not further 

illuminate the case against the named parties. 

Fevisa submitted this information to the Commission with the understanding that this 

information would be treated confidentially. And, " [a]s a policy matter, extensions of 

confidential or in camera treatment in appropriate cases involving third party bystanders 

encourages cooperation with future adjudicative discovery requests." Kaiser Aluminum, 103 

F.T.C. at 500. 

These facts and the Declaration of Juan R. Silva G. make clear that the information 

contained in PX4018 and PX4046 is highly confidential and competitively sensitive. 

Accordingly, these documents should be afforded in camera treatment. 

IV. In Camera Treatment Should Extend to Information Regarding Fevisa's Production 

Capacity Indefinitely and to All Other Sensitive Information for Five (5) Years 

While in camera treatment generally extends to ordinary business records for five years, 

see, e.g. , McWane, Inc., 2012 WL 3862131, in camera treatment may be extended indefinitely 

when the competitive sensitivity of the information is unlikely to diminish over time, see, e.g. , 

id; Coca Cola Co. , 1990 WL 10081418, at *3. Specifically, Fevisa respectfully requests that 

paragraph 6 ofPX4018, as well as the columns in both PX4018 and PX4046 named "Percentage 

of Usage Capacity," be afforded indefinite in camera treatment. Fevisa's production capacity is 

unlikely substantially to change over the next several years, and, accordingly, disclosure of this 

information would impose serious competitive harm upon Fevisa into the foreseeable future. 

This information should therefore receive indefinite in camera treatment. See Kaiser Aluminum, 

103 F.T.C. at 500 (extending in camera treatment to statistics more than five years old, due to 

the "serious injury [that] would be done [the applicant] by release of this information"). 

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Fevisa requests that the remaining information contained in PX4018 and PX4046 be 

given in camera treatment for five years, as this is the typical length afforded to such confidential 

and sensitive information. See McWane, Inc. , 2012 WL 386213 1. 

V. Conclusion 

For the forgoing reasons, Fevisa respectfully requests that PX4018 and PX4046 be 

afforded in camera treatment pursuant to Rule 3.45(b) of the Federal Trade Commission Rules 

of Practice, 16 C.F.R. § 3.45(b). Fevisa requests in camera treatment be extended indefinitely to 

the portions of these documents relating to Fevisa's production capacity as identified in Section 

IV above, and for five (5) years to those portions addressing Fevisa's annual United States 

exports, its volume/gross, its gross/price, and its percentage of exports to United States 

customers. 

December 9, 2013 

Respectfully submitted, 

Andrea 

~~Agathoklis Murino JM~ · 

Elyse Dorsey 

WILSON SONSINI GOODRICH & ROSATI, P.C. 

1700 K Street, NW 

Fifth Floor 

Washington, DC 20006 

Phone: (202) 973-8800 

Fax: (202) 973-8899 

murino wsg .co m 

edorSC) (I WS!li".COill 

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In the Matter of 

Ardagh Group S.A., 

a public limited liability company, and 

Saint-Gobain Containers, Inc., 

a corporation, and 

Compagnie de Saint-Gobain, a corporation. 

PUBLIC 

Docket No. 9356 

DECLARATION OF JUAN R SILVA G. 

IN SUPPORT OF NON-PARTY FEVISA INDUSTRIAL, S.A. de C.V.'S 

MOTION FOR IN CAMERA TREATMENT OF PROPOSED EVIDENCE 

I, Juan R. Silva G., declare as follows: 

1. I am Executive Vice President of non-party Fevisa Industrial, S.A. de C.V. ("Fevisa"). I 

make this Declaration based upon my personal knowledge and in support of Fevisa's 

Motion for In Camera Treatment of Proposed Evidence in the above captioned matter. 

2. The information contained in PX4018 and PX4046 contains highly sensitive and 

confidential material. Fevisa has taken substantial measures to guard this information by 

limiting dissemination of this information and by taking every reasonable step to protect 

its confidentiality. This information is disclosed only to employees and officers ofFevisa 

or members of the Fevisa Board of Directors with a need to know the information. This 

information is not known outside of Fevisa, except to the extent necessary to engage in 

confidential contract negotiations or confidential discussions with potential or existing 

customers. The information contained in PX4018 and PX4046 would be extremely 

difficult for Fevisa's competitors or other outside persons to access or duplicate. 

Additionally, each document was submitted to the Federal Trade Commission with the 

understanding that it would be treated confidentially. Fevisa sent a letter to Complaint 

Counsel on July 18, 2013, reiterating that it desired these documents to be treated 

confidentially. 

3. I have reviewed PX4018 and PX4046. I am familiar with the type of information these 

documents contain by virtue of my position with Fevisa. It is my belief that broad 

disclosure of these documents would inflict serious competitive injury upon Fevisa. This 

belief is based upon my review of the documents, as well as my knowledge of Fevisa's 

business and the confidentiality protection Fevisa typically affords this type of 

information. 
4. Documents containing information regarding Fevisa's prices, production capacity, and 

exports are critical to Fevisa's business, its customer relations, its competitiveness, and 

its profitability. Competitors with access to this information would gain a significant 

business advantage at Fevisa's expense. And, customers with this information could 

unfairly leverage their knowledge in future negotiations with Fevisa. 

5. PX4018 and PX4046 detail highly sensitive information regarding Fevisa's prices, 

production capacity, and exports to the United States. Disclosure of this sensitive 

information would be highly detrimental to Fevisa, as it would provide both customers 

and competitors with competitively significant information, thereby causing serious and 

irreparable harm to Fevisa. As a result, Fevisa would lose a business advantage in the 

marketplace. Fevisa's competitors would be able to compete unfairly on price with 

Fevisa and to exploit their knowledge of Fevisa's production capacity in their own 

negotiations with customers; and customers similarly would be able to utilize this 

information for their own gain in future negotiations with Fevisa. 

6. Furthermore, Fevisa places significant value upon maintaining the secrecy and 

confidentiality of its customer contracts. Disclosure of the sensitive information 

contained in PX4018 and PX4046 would seriously undermine Fevisa's efforts to keep 

these contracts confidential and would, accordingly, cause irreparable harm to Fevisa's 

relationships with its customers. 

7. Fevisa takes considerable measures to protect the secrecy of the information contained in 

PX4018 and PX4046. The detailed information regarding Fevisa's annual exports to the 

United States, its production capacity, and its pricing are disclosed only to employees and 

officers of Fevisa or members of the Fevisa Board of Directors with a need to know the 

information. 

8. The information PX4018 and PX4046 contain is material to Fevisa's business and to its 

competitive position in the marketplace. Fevisa would experience a significant loss in its 

business advantage and irreparable injury to its customer relationships if this information 

were to be disclosed. Such a disclosure would provide Fevisa's competitors and 

customers with information that is confidential and critical to Fevisa's business. 

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the forgoing is true 

and correct. 

Executed this 9th day of December, 2013. 

Juan . 

Executive Vice President 

Fevisa Industrial, S.A. de C.V. 

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CERTIFICATE OF SERVICE 

I hereby certify that on December 9, 2013, I filed the foregoing document electronically using 

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

DonaldS. Clark 

Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Room H-113 

Washington, DC 20580 

I also certify that on December 9, 2013 a copy of the .foregoing document was delivered via 

electronic mail, and will be sent by overnight courier (Federal Express) to: 

The Honorable D. Michael Chappell (oalj@ftc.gov) 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Room H-110 

Washington, DC 20580 

I further certify that on December 9, 2013, a copy of the foregoing document was 

delivered via electronic mail to: 

Counsel Supporting the Complaint 

· Edward D. Hassi (ehassi@ftc.gov) 

James E. Abell (jabell@ftc.gov) 

Monica Castillo (mcastillo@ftc.gov) 

Steven A. Dahm (sdahm@ftc.gov) 

Joshua Goodman (jgoodman@ftc.gov) 

Sebastian Lorigo (slorigo@ftc.gov) 

Brendan J. McNamara (bmcnamara@ftc.gov) 

Angelike Mina (amina@ftc.gov) 

Catharine M. Moscatelli (cmoscatelli@ftc.gov) 

Angel Prado (aprado@ftc.gov) 

Kristian Rogers (crogers@ftc.gov) 

Danielle Sims (dsimsl@ftc.gov) 

Eric M. Sprague (esprague@ftc.gov) 

Steven L. Wilensky (swilensky@ftc.gov) 

Thomas H. Brock (tbrock@ftc.gov) 

Michael B. Kades (mkades@ftc.gov) 

Michael Lovinger (mlovinger@ftc.gov) 

Michael A. Franchak (mfranchak@ftc.gov) 

Amanda Hamilton (ahamiltonl@ftc.gov) 

Sean D. Hughto (shughto@ftc.gov) 

Victoria Lippincott (vlippincott@ftc.gov) 

Meredith Robinson (mrobinson@ftc.gov) 

U.S. Federal Trade Commission 
Counsel for Respondent Ardagh Group SA. 

Alan Goudiss (agoudiss@shearman.com) 

Wayne Dale Collins (wcollins@shearman.com) 

Richard Schwed (rschwed@shearman.com) 

Lisl Dunlop (ldunlop@shearman.com) 

Heather Kafele (hkafele@shearman.com) 

Edward G. Timlin (Edward.Timlin@shearman.com) 

Jason M. Swergold (Jason.Swergold@shearman.com) 

Shearman & Sterling LLP 

Counsel for Respondent Saint-Gobain Containers, Inc. & Compagnie de SaintGobain 

Veena Viswanatha (vviswanatha@buckleysandler.com) 

BuckleySandler LLP 

Counsel for Respondent Saint-Gobain Containers, Inc. & Compagnie de SaintGobain 

Sandra C. Goldstein (sgoldstein@cravath.com) 

Rory A. Leraris (rleraris@cravath.com) 

Athena N. Cheng (acheng@cravath.com) 

Pierre N. Gemson (pgemson@cravath.com) 

Sarah M. Colombo (scolombo@cravath.com) 

Christine A. Varney (cvarney@cravath.com) 

Y onatan Even (yeven@cravath.com) 

Cravath, Swaine & Moore LLP 

Counsel for Third Party Arkansas Glass Containel,' Corp 

Chong Park ( cpark@steptoe.com) 

Nathaniel Brower (nbrower@steptoe.com) 

Steptoe & Johnson LLP 

Counsel for Third Party Piramal Glass- USA, Inc. 

Curtis Crowther ( ccrowther@ycst.com) 

Young Conaway Stargatt & Taylor LLP 
CERTIFICATE OF ELECTRONIC FILING 

I certify that the electronic copy sent to the Secretary of the Commission is a true 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 9, 2013