PUBLIC DOCUMENT

EXHIBIT 2 -- Redacted


injury both to GPI and its member companies, as those competitor associations, and companies
who are not members of GPI who did not pay for the EcoFocus data would be able to obtain at
no cost and reference for their commercial gain such information. Id. at | 9.

It would be very difficult for a GP] member company to obtain net sales information
about one of its fellow member companies, just as it would be very difficult for any member of
the glass packaging industry, GPI member or otherwise, to obtain such information about one or
more of its competitors. Jd. at | 8. GPI does not share this information or its dues calculation
methodology with anyone in the ordinary course of business. Jd. Similarly, the amount of
money expended by GPI members to conduct the EcoFocus survey makes the results of the
survey very valuable to GPI, and unless disclosed to the public, would make it difficult for the
information to be acquired by others. Id. at | 9.

C. The Public Interest in Disclosure of Exhibits 1 Through 4 is Outweighed by the
Likelihood of Serious Competitive Harm to GPI and Its Member Companies

As a non-party requesting in camera treatment of confidential, competitively sensitive
business information, GPI deserves "special solicitude" in these proceedings. In the Matter of
Kaiser Aluminum & Chemical Corporation, 103 F.T.C. 500, 500 (1984) (order directing in
camera treatment for sales statistics over five years old). Granting in camera treatment of
confidential, competitively sensitive information for a reasonable period encourages non-parties
to cooperate with future discovery requests in adjudicative proceedings. Id. Indeed, GPI has
cooperated with the discovery demands in this case.

Conversely, unrestricted disclosure of that information does not add measurably to the
public's understanding of these proceedings. Disclosure of GPI’s dues calculation methodology
in combination with member company dues amounts, as well as of the EcoFocus survey data,

however, would severely harm and/or competitively disadvantage GPI and its member

DBI/ 76865547.1 5


Morgan, Lewis & Bockius LP

1111 Pennsylvania Avenue, NW fue j
Washington, DC 20004 0 R | i 3 N AL
Tel: 202.739.3000

Fax: 202.739.3001
www.morganlewis.com

Stephen Paul Mahinka
Partner

202.739.6205
smahinka@morganlewis.com

December 9, 2013
VIA HAND DELIVERY

The Hon. Donald S. Clark
Secretary

Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, D.C. 20580

Re: In the Matter of Ardagh Group S.A., Saint-Gobain Containers, Inc., and Compagnie de
Saint Gobain- Docket No. 9356

Dear Secretary Clark:

On behalf of non-party Glass Packaging Institute, we submit, under cover of this letter, a public
version of the following materials for filing in the above-referenced matter:

1. Motion of Non-Party Glass Packaging Institute for In Camera Treatment of Proposed
Evidence;

2. Declaration of Lynn M. Bragg in Support of Motion of Non-Party Glass Packaging
Institute for In Camera Treatment of Proposed Evidence, with public copies Exhibits 1
through 4; and

3. Proposed Order.

Earlier today, we submitted a public version of this letter and the above-described materials via
the Commission’s e-filing system. Courtesy copies of these papers and of their non-public
exhibits are being hand-delivered today to Chief Administrative Law Judge D. Michael
Chappell, and copies of both public and non-public versions of these materials are also being
served on Complaint Counsel and counsel for Respondents, Ardagh Group S.A., Saint-Gobain
Containers, Inc., and Compagnie de Saint-Gobain.

Almaty Beijing Boston Brussels Chicago Dallas Frankfurt Harrisburg Houston Irvine London Los Angeles Miami
Moscow New York Palo Alto Paris Philadelphia Pittsburgh Princeton San Francisco Tokyo Washington Wilmington

DBI/ 76865755.1


camera treatment. By virtue of my current position at GPI, as described above, and my
familiarity with the confidentiality protections afforded by GPI to the type of information
contained in these materials, I believe that disclosure of these documents and deposition excerpts
to the public, to GPI’s competitor industry associations, to GPI’s member companies, and/or to
members of the glass packaging industry generally would cause serious competitive injury to
GPI and its member companies.

4. GPIhas taken significant steps to protect the confidential nature of these materials,
which, either in the case of the GPI documents or my August 19, 2013 and September 18, 2013
depositions, were produced or given under compulsory process in response to subpoenas issued
by the Federal Trade Commission (“FTC”). GPI produced its documents expressly subject to the
Protective Order Governing Discovery Material issued in this matter on July 9, 2013 (the
"Protective Order").

5. Exhibit 1 hereto is a listing of the quarterly dues paid by each member of GPI from 2010
through 2012. The Exhibit contains the name of each member company, a description of each
company’s membership type, and the amount of dues paid by each member each quarter of the
years stated above.

6. Exhibit 2 hereto contains the results of the consumer preference survey conducted by
EcoFocus for GPI. The survey results report, among other things, consumer preference for glass
containers for certain types of food and beverage products.

7. Exhibits 3 and 4 hereto are excerpts from my August 19, 2013 deposition related to GPI’s
dues amount methodology, specifically, the dues multiplier amount, against which member net
sales are multiplied to yield how much each member’s dues are.

8. The materials for which GPI seeks in camera treatment contain important information

regarding GPI dues payment amounts (Exhibit 1 hereto) and GPI’s dues amount methodology,
2


UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

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.

SSS SS SS SS SH SD

PROPOSED ORDER

On December 9, 2013, Non-Party Glass Packaging Institute ("GPI") filed a motion for in
camera treatment of confidential business information contained in two documents and two
deposition excerpts that have been identified by Complaint Counsel as potential trial exhibits.

IT IS HEREBY ORDERED that GPI’s motion is granted. The information set forth in
the documents and deposition excerpts identified below will be subject to in camera treatment
under 16 C.F.R. § 3.45 and will be kept confidential and not placed in the public record of this
proceeding for a period of five (5) years.
DOCUMENTS PRODUCED BY GLASS PACKAGING INSTITUTE:

e =GPI002341
© =GPI000532

EXCERPTS FROM THE DEPOSITION TRANSCRIPT OF LYNN M. BRAGG (AUGUST 19,
2013):

e 34: 11-17
42: 13-15


companies. Thus, the balance of interests clearly favors in camera protection for Exhibits 1
through 4 in this case.

D. Protection for Exhibits 1 Through 4 Should Extend For Five Years

The nature of the highly confidential information contained in Exhibits 1 through

4 warrants lasting protection. GPI’s dues calculation methodology and the dues paid by each
member (which could lead one to easily calculate the net sales of GPI’s members) are vital to the
competitive position of each of its members and GPI’s strategy. Bragg Decl. at 7 8.
Additionally, the amount of money expended by GPI members to conduct the EcoFocus survey
makes the results of the survey very valuable to GPI, and unless disclosed to the public, would
make it difficult for the information to be acquired by others. Id. at 79. Accordingly, GPI
respectfully requests that Exhibits 1 through 4 be afforded in camera protection for a period of

five years.

CONCLUSION
For the foregoing reasons, GPI respectfully requests that the Commission grant in camera

treatment to Exhibits 1 through 4 for a period of five years.

Dated: December 9, 2013 Respectfully Submitted,
Stephen Paul Mahinka (Bar No. 236232)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20008
Tel. (202) 739-5205

Fax (202) 739-3001
Counsel for Non-Party Glass Packaging Institute

DBI/76865547.1 : 6


Morgan Lewis

COUNSELORS AT LAW

: The Hon. Donald S. Clark
| December 9, 2013
Page 2

Please acknowledge receipt of these materials by date-stamping the enclosed copy of this letter
as "received" and returning it with our courier messenger. Thank you.

Sincerely,

el ee

Stephen Paul Mahinka
Counsel for Glass Packaging Institute

Enclosures

cc: Hon. D. Michael Chappell
Josh Goodman.
Jason Swergold
Rory Leraris

DBI/ 76865755.1


1
{
i
|
|

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

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.

DECLARATION OF LYNN M. BRAGG IN SUPPORT OF MOTION OF NON-PARTY
GLASS PACKAGING INSTITUTE FOR IN CAMERA TREATMENT OF PROPOSED
EVIDENCE

I, Lynn M. Bragg, hereby declare as follows:

1. Iam the President of the Glass Packaging Institute (“GPT”). I make this declaration in
support of the Motion of Non-Party GPI for Jn Camera Treatment of Proposed Evidence. I have
personal knowledge of the matters stated herein and, if called upon to do so, could competently
testify about them.

2. Ihave held the position of President since March 2011. I have more than 20 years
experience in the executive and legislative branches of government and in leading trade
associations representing American manufacturing, including a nine-year Presidential
appointment as Commissioner and later Chair at the U.S. International Trade Commission and an

appointment as the President of the Chocolate Manufacturers Association.

3. Ihave reviewed the documents and deposition excerpts for which GPI seeks in


TRA
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S676
bee Og “n°

SECRETARY ao

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

In the Matter of

Ardagh Group S.A.,
a public limited liability company, and DOCKET NO. 9356

Saint-Gobain Containers, Inc.,
a corporation, and

Honorable D. Michael Chappell

Compagnie de Saint-Gobain,
a corporation,
Respondents.

eS SSS SS SH SH SH SH SL

NON-PARTY GLASS PACKAGING INSTITUTE'S MOTION FOR IN CAMERA
TREATMENT OF CERTAIN DESIGNATED HEARING EXHIBITS

Glass Packaging Institute ("GPI”), which is not a party to the above-captioned action,
respectfully requests that the Federal Trade Commission (“Commission”) grant in camera
treatment of a small number of documents and deposition excerpts that Complaint Counsel has
designated for possible introduction in the administrative trial in this matter. GPI has conferred
with counsel for Ardagh Group S.A., and counsel for both Saint-Gobain Containers, Inc. and
Compagnie de Saint-Gobain (hereinafter collectively referred to as “Respondents”), and
understands that Respondents do not oppose this motion. By letter dated November 19, 2013,
Complaint Counsel notified GPI that it intends to introduce into evidence certain documents
produced by GPI in response to a subpoena issued by the Commission, and certain excerpts from
the August 19, 2013 and September 18, 2013 depositions of GPI’s President, Lynn M. Bragg in

this matter (the "Bragg Deposition").

DBI/76865547.1 1


I declare under penalty of perjury that the foregoing is true and correct. Executed on December

9, 2013.



specifically, the dues multiplier amount, against which member net sales are multiplied to yield
how much each member’s dues are (Exhibits 3 and 4 hereto). In short, disclosure of these
materials would allow anyone to reverse engineer confidential net sales figures of all GPI
members. It would be very difficult for a GPI member company to obtain net sales information
about one of its fellow member companies, just as it would be very difficult for any member of
the glass packaging industry, GPI member or otherwise, to obtain such information about one or
more of its competitors. GPI does not share this information with other parties in the ordinary
course of business. GPI keeps in strict confidence the information about its membership dues
and the manner in which such dues are calculated (i.e., Exhibits 1, 3, and 4). GPI’s dues
calculation methodology and the dues paid by each member (which could lead one to easily
calculate the net sales of GPI’s members) are vital both to the competitive position of each of its
members and GPI’s strategy.

9. The materials for which GPI seeks in camera treatment also contain the results of a
consumer preference survey conducted by EcoFocus for GPI. The disclosure of the raw data
from the EcoFocus consumer preference survey, for which GPI’s members paid a substantial
sum of money, would result in serious competitive injury both to GPI and its member
companies, as those competitor industry associations, and companies who are not members of
GPI who did not pay for the EcoFocus data would be able to obtain such information at no cost
and reference such information for their commercial gain. The amount of money expended by
GPI members to conduct the EcoFocus survey makes the results of the survey very valuable to
GPI, and unless disclosed to the public, would make it difficult for the information to be acquired

by others.


IT IS FURTHER ORDERED that only authorized Federal Trade Commission
("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.

ORDERED:
D. Michael Chappell
Chief Administrative Law Judge

DATED:


B. Disclosure of the Information in Exhibits 1 Through 4 Would Result in Serious
Competitive Injury Both to GPI and Its Member Companies

For purposes of this analysis, the disclosure of confidential business information results
in "serious injury" when the information in question is both secret and material to the business of
the information's owner. See General Foods, 95 F.T.C. at 355. In evaluating the secrecy and
materiality of a corporation's information, the Commission may consider the following factors,
among others: (1) the extent to which the information is known outside of the corporation; (2)
the extent to which it is known by the corporation's employees and others involved in the
corporation's business; (3) the extent of measures taken by the corporation to guard the secrecy
of the information; (4) the value of the information to the corporation and to its competitors; (5)
the amount of effort or money expended by the corporation in developing the information; (6)
the ease or difficulty with which the information could be properly acquired or duplicated by
others. See In re Bristol-Myers, 90 F.T.C. 455, 456 (1977). Each of these factors weighs in
favor of in camera treatment in this case.

Disclosure of the materials for which GPI seeks in camera treatment would result in
serious competitive harm both to GPI and its member companies for several reasons. Public
disclosure of the highly secretive GP] dues payment amounts (see Exhibit 1), in combination
with the public disclosure of GPI’s dues payment methodology, specifically, the dues multiplier
amount, against which member net sales are multiplied to yield how much each member’s dues
are (see Exhibits 3 and 4), would allow anyone to reverse engineer confidential net sales figures
of all GPI members. Bragg Decl. at {| 8. GPI keeps in strict confidence the information about its
membership dues and the manner in which such dues are calculated (i.e., Exhibits 1, 3, and 4).
Id. Moreover, disclosure of the raw data from the EcoFocus consumer preference survey, for

which GPI’s members paid a substantial sum of money, would result in serious competitive

DBI/ 76865547. 4


PUBLIC DOCUMENT

EXHIBIT 3 -- Redacted


CERTIFICATE OF SERVICE

The undersigned hereby certifies that a public version of the foregoing Motion of Non-
Party Glass Packaging Institute for Jn Camera Treatment of Proposed Evidence, Declaration of
Lynn M. Bragg in support thereof, with Exhibits 1 through 4, and Proposed Order, were served
on the following on December 9, 2013:

Via Hand Delivery:

Hon. Donald S. Clark
Secretary

Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580

The undersigned further certifies that both public and non-public versions of the
foregoing Motion of Non-Party Glass Packaging Institute for In Camera Treatment of Proposed
Evidence, Declaration of Lynn M. Bragg in support thereof, with Exhibits 1 through 4, and
Proposed Order, were served on the following on December 9, 2013:

Via Electronic Mail:

Josh Goodman

Bureau of Competition
Federal Trade Commission
601 New Jersey Ave, NW
Washington, D.C. 20001

jgoodman@ftc.gov

Rory A. Leraris

Cravath, Swaine & Moore LLP
Worldwide Plaza

825 Eighth Avenue

New York, New York 10019-7475

rleraris@cravath.com

Jason M. Swergold

Shearman & Sterling LLP _
599 Lexington Avenue fo
New York, NY 10022 {
jason.swergold@shearman.com; {

\

\ |
\ —
’ ‘Jonathan A. Havens

\

\



camera treatment must show that public disclosure of the document in question "will result in a
clearly defined, serious injury to the person or corporation whose records are involved.” H.P.
Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). 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 General Foods Corp.,
95 F.T.C. 352, 355 (1980). In this context, "courts have generally attempted to protect
confidential business information from unnecessary airing." Hood, 58 F.T.C. at 1188.

A. GPI Has Preserved the Confidentiality of the Documents and Information

GPT has taken significant steps to protect the confidential nature of these materials,
which, either in the case of the GPI documents and the Bragg Deposition, were produced or
given under compulsory process in response to subpoenas issued by the FTC. GPI produced its
documents expressly subject to the Protective Order Governing Discovery Material issued in this
matter on July 9, 2013 (the "Protective Order"). Bragg Decl. at ]4. The express purpose of the
Protective Order included "ensur[ing] that...confidential information submitted by...any third
party...pursuant to compulsory process...is not improperly disclosed." Protective Order,
Preamble.

In addition to these measures, GPI has taken substantial measures to guard the secrecy of
the information contained in Exhibits 1 through 4, limiting dissemination of such information
and taking every reasonable step to protect its confidentiality. Bragg Decl. at {4 and 8. It
would be extremely difficult for GPI's competitor industry associations or other outside persons
to access or recreate the information contained in the materials at issue. Id at {| 8 and 9. These
efforts demonstrate that GPI has gone to great lengths to preserve the confidentiality of the

information contained in Exhibits 1 through 4.

DBI/ 76865547.1 3


The GPI documents designated by Complaint Counsel for possible introduction into
evidence include, among others, the following documents, which are attached as an exhibit to the
Declaration of Lynn M. Bragg in support of this motion (the “Bragg Decl.,” Exhibit A hereto):

© GP1002341 (Exhibit 1)
© GPI000532 (Exhibit 2)

As evidenced on the face of these documents, GPI marked them as “Confidential” when it
produced the documents in response to the above-referenced subpoena.’

The Bragg Deposition excerpts designated by Complaint Counsel for possible
introduction into evidence include, among others, the following Bragg Deposition excerpts,
which are attached as exhibits to the Bragg Declaration:

© 34: 11-17 (Exhibit 3)
© 42: 13-15 (Exhibit 4)

The above documents and Bragg Deposition excerpts contain information that is
competitively sensitive for GPI and its member companies and that GP] holds in strict
confidence. Public disclosure of these materials is likely to cause direct, serious harm to GPI’s
and its member companies’ competitive positions. Therefore, pursuant to 16 C.F.R. § 3.45(b),
GPI respectfully moves for in camera treatment of the confidential documents and Bragg
Deposition excerpts identified in the Bragg Declaration.

GPI'S CONFIDENTIAL MATERIALS DESERVE
IN CAMERA TREATMENT UNDER THE FEDERAL TRADE
COMMISSION'S RULES OF PRACTICE
The documents and deposition excerpts that are described in this motion warrant in

camera treatment as provided by 16 C.F.R. § 3.45(b). Under 16 C.F.R. § 3.45(b), requests for in

' As the documents are Microsoft Excel files, they had to be produced to the FTC in “native” versions, as
Excel spreadsheets, rather than as image files (the majority of the documents produced to FTC were
produced as images, rather than native files). Accordingly, the images of GPI-002341 and GPI-000532,
which each state that “This Document Produced in Native File Format Only” bears the
“CONFIDENTIAL” label, whereas the native Excel versions of the documents do not.

DBI/ 76865547.1 2


EXHIBIT 1 -- Redacted


EXHIBIT 4 -- Redacted