Dechert

LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104-2808

+1 215 994 4000 Main

+1 215 994 2222 Fax

www.dechert.com

JUSTIN N. PENTZ

VIA HAND DELIVERY

justin.pentz@cIechert.com

+1 2159942395 Direct

+1 2156552395 Fax

~~\. Mis. ,MOE COM OR I G I NAL

~;Ç)(Ç RECEIVED DOCUMENTS tS/OA. I.~ 56i 77l¡3 '(/

DEC 9 lDjJ

. . 5Li -'.1 Î"ol

~ &'FCREARY ,-'0

bl,c.

December 9,2013

Office of the Secretar

Federal Trade Commission

600 Pennsylvania Ave., N.W.

Room H-113

Washington, D.C. 20580

Re: In the Matter of Ardagh Group, s.A., Compagnie de Saint-Gobain, andSaint-Gobain

Containers, Inc.; Docket No. 9356

To Whom It May Concern:

Please accept for filing the enclosed Unopposed Motion of Non-Part Crown Holdings Inc. for In

Camera Treatment of Proposed TI'al Exhibits. The enclosure contains three copies of an in

camera version of the filing and three copies of a redacted public version of the filing, as well as

a CD containing PDF versions ofthe in camera filing. Each printed copy is stamped either "In

Camera" or "Public" in the lower-left corner of the document. Pursuant to 16 C.F.R. § 4.2.,

please handle the CD and printed copies of the "in camera" version in the strictest confidence as

they contain highly confidential Crown information. If you have any questions regarding these

submissions, please do not hesitate to contact me.

Please also kindly stamp and return a copy ofthe cover letter indicating that Crown's filing has

been received.

Resptfly SU~d,. ~

Justin N. Pentz
UNITED STATES OF AMERICA

FEDERAL TRAE COMMSSION

OFFICE OF THE ADMINISTRA TIVE LAW JUDGES

ORIGINAL

~\. 1RAotêò~:;,.,,, .' ~Q\t' . 'i.¡/~ ""

(.'..~~'" ';.t:. Eïo~i~ ~)'; \ fEC 9 2013

'. SECREARY __'

In the Matter of )

)

)

)

)

)

)

)

)

)

)

DOCKET NO. 9356

Ardagh Group S.A.,

a public limited liability company, and

Compagnie de Saint-Gobain,

a corporation, and

Saint-Gobain Containers, Inc.,

a corporation

UNOPPOSED MOTION OF NON-PARTY CROWN HOLDINGS INC.

FOR IN CAMERA TREATMENT OF PROPOSED TRIAL EXHfflTS

Pursuant to Rule 3.45(b) of the Federal Trade Commission's Rules of Practice, 16 C.F.R.

§ 3.45(b), non-part Crown Holdings, Inc. ("Crown") respectfully submits this Motion seeking

in camera treatment of competitively sensitive, confidential documents and deposition

testimony. The specific documents and portions of deposition testimony that are the subject of

this Motion were provided in response to third-part subpoenas served upon Crown. Now, FTC,

Ardagh, and Saint-Gobain have notified Crown that they intend to introduce these materials into

evidence at the administrative trial in this matter. See Nov. 19,2013 Letter from Lorigo to Pentz

(Ex. A); Nov. 20, 2013 letter from Lanpher to Friedman (Ex. B); Nov. 26, 2013 Swergold email

to Friedman (Ex. C). Because the documents and deposition testimony are highly confidential

and their disclosure would cause great injur to Crown, Crown requests that these materials be

afforded in camera treatment for a period of five years. Neither the FTC nor Ardagh or SaintGobain opposes this Motion.

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BACKGROUND

On July 24,2013, Crown was served with a sweeping third-part subpoena by Ardagh in

the federal action i that requested a wide variety of documents regarding all aspects of Crown's

can business. On July 26,2013, FTC served Crown with a nearly identical subpoena. After

significant discussions with the paries focused on both the scope of the subpoena and

confidentiality protections, Crown agreed to produce a limited number of documents that had

previously been provided to FTC staff during its investigation of the Ardagh/Saint-Gobain

transaction. Crown agreed to make this production only after the parties: (1) agreed to allow

Crown to redact confidential, non-relevant material in the documents; and (2) agreed to

additional confidentiality provisions beyond the protective order already entered in the case.2

Crown made its document production on August 9, 2013 and designated all produced documents

as confidentiaL.

Crown was subsequently subpoenaed again by the parties to participate in a deposition in

the federal action. The deposition, which occurred on August 20,2013, referred to confidential

Crown documents and discussed other confidential, highly sensitive aspects of Crown's

business. Accordingly, Crown designated the deposition as confidentiaL.

On November 19 and 20,2013, Crown was notified by the parties that they intended to

introduce certain confidential Crown documents and portions of deposition testimony at their

The term "federal action" refers to FTC v. Ardagh Group, s.A., Civ. Action NO.1 :13-cv-0102lRMC (D.D.C.). At the time the subpoenas were issued to Crown, the parties to that case were

engaged in discovery in preparation for their upcoming prelimary injunction hearing.

2

The additional confdentiality protections were memorialized in the Stipulated Side Agreement to

the Protective Order, which was filed in the federal action on July 31, 2013 (Dkt. 41). Among

other things, the Stipulated Side Agreement provided that the parties should provide Crown with

advance notice before using any of its confidential material in open cour.

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upcoming PTC administrative triaL. See Exs. A & B. Specifically, the correspondence disclosed

the parties' intent to use the following confidential Crown materials:3

The documents described below are attached at Exhibits D-H. The portions of the deposition are

attached at Exhibit I (the designated portions are highlighted in the exhibit).

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· Portions of deposition testimony. The parties have designated numerous portions

of the deposition testimony provided by Crown (see Exs. B & C for the specific

The paries also advised Crown of their right to seek in camera treatment of these confidential

materials. Accordingly, for the reasons explained below and in the accompanying declaration of

Neil Mitchell (Ex. J), Crown requests that the documents and testimony described above be

afforded in camera treatment for a period of five years.

ARGUMENT

Confidential materials should be given in camera treatment when their "public disclosure

wil likely result in a clearly defined, serious injur to the person, parnership, or corporation

requesting in camera treatment." 16 C.F.R. § 3.45(b). That showing can be made by

establishing that the documents and testimony are "suffciently secret and suffciently material to

the applicant's business that disclosure would result in serious competitive injur." In re

General Foods Corp., 95 F.T.C. 352, 355 (1980). The following factors should be weighed in

considering both secrecy and materiality: (1) the extent to which the information is known

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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 diffculty with which the information could be

properly acquired or duplicated by others. In re Bristol-Myers Co., 90 F.T.C. 455,456-57

(1977).4 Such a showing may be "inferred from the nature of the documents themselves." In re

H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961).

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

whether information warrants in camera treatment. Furhermore, non-paries (such as Crown

here) requesting in camera treatment deserve "special solicitude" in requests for in camera

treatment for their confidential business information. See In re Kaiser Aluminum & Chem.

Corp., 103 F. T.C. 500, 500 (1984) ("As a policy matter, extensions of confidential or in camera

treatment in appropriate cases involving third part bystanders encourages cooperation with

futue adjudicative discovery requests.").

Here, the documents and deposition testimony for which Crown seeks in camera

treatment are "sufficiently secret and sufficiently material" to Crown's business to warrant

protection. Each of the documents reflects confidential Crown information that is not known by

individuals outside of Crown, and the deposition testimony reflects Crown information not

known to others. Mitchell Decl. iTiT 4 & 6.5 REDACTED

4,

With regard to establishing a serious injur, this Court has held that "(t)he likely loss of business

advantages is a good example of a 'clearly defined, serious injur.'" In re Dura Lube Corp.,

1999 FTC LEXIS 255, at *7 (Dec. 23, 1999) (quoting General Foods, 95 F.T.C. at 355).

The declaration of Neil Mitchell, attached as Exhbit J, explains the confdential natue of the

documents and testimony that are the subject of this Motion and the ~ury that Crown would

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In short, the documents and testimony reflect highly confidential Crown material known only to

certain individuals at Crown. Id

If Crown's confidential documents and testimony were made available to its competitors,

customers, and the general public, Crown would suffer significant competitive injury. Crown's

competitors and customers could use Crown's confidential information against it and Crown

would lose any business advantage it has to those entities. Id irir 5 & 6. Competitors could use

the Crown confidential information in competitive bidding situations or to adjust to Crown's

competitive strategy. Id Customers could use the Crown confidential information to gain an

advantage in pricing or other negotiations. Id Accordingly, Crown would be substantially

injured by the disclosure of the confidential documents and testimony.

Finally, as a non-pary to this dispute, Crown deserves "special solicitude" in

consideration of its request for in camera treatment. Indeed, Crown only agreed to provide the

confidential information at issue in this Motion because of the parties' assurances of

suffer if its confdential materials were not granted in camera treatment. Mitchell Decl. iiii 4 & 6.

The declaration also explains Mr. Mitchell's basis for personal knowledge of the documents at

issue, their confidential natue, and the potential injur to Crown. Id iiii 2-6.

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confidentiality and the protections agreed to in the Stipulated Side Agreement to the Protective

Order in the federal litigation. While Crown had (and stil has) serious questions about the

relevance of its materials to the dispute between the paries in this case, Crown was wiling to

produce the materials requested because of the paries' confidentiality commitments.

Crown requests that the materials be afforded in camera treatment for a period of five

years. This time period is necessary to protect Crown from competitive injur and is in

accordance with precedent on the appropriate length of in camera treatment for materials similar

to those at issue in this case. See, e.g., In re Int 'l Ass 'n of Conference Interpreters, 1996 FTC

LEXIS 298, at * 13 (granting in camera treatment of non-pary business plans for five years and

noting that "five years' in camera treatment has previously been granted to similar documents

revealing business plans and pncing strategies").

CONCLUSION

For the foregoing reasons, Crown requests that the confidential materials at issue in this

Motion be afforded in camera treatment for a period of five years.

Dated: December 9,2013 -f~ t9~ /~N¡ø/

Paul H. Friedman

DECHERTLLP

1900 K Street, N.W.

Washington, D.C. 20006

Phone: (202) 261-3398

paul.friedman@dechert.com

Justin N. Pentz

DECHERTLLP

Cira Centre

2929 Arch Street

Philadelphia, P A 19104

Phone: (215) 994-2395

justin.pentz@dechert.com

Counsel for Non-Party

Crown Holdings, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on December 9,2013, I caused the foregoing Unopposed Motion of

Non-Pary Crown Holdings, Inc. for In Camera Treatment of Proposed Trial Exhibits to be fied

by hand on the following:

Office of the Secreta

Federal Trade Commission

600 Pennsylvania Ave., N.W.

RoomH-135

Washington, D.C. 20580

.1

I

I also certify that I delivered via electronic mail and overnight delivery a copy of the

foregoing document to:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Ave., N.W.

Room H-l 10

Washington, D.C. 20580

Sebastian Lorigo, Esq.

Bureau of Competition

Federal Trade Commssion

601 New Jersey Ave., N.W.

Washington, D.C. 20001

Mark Lanpher, Esq.

Shearan & Sterling LLP

801 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 /- /lJustin N. Pentz

Counsel for Non-Party

Crown Holdings, Inc.

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UNITED STATES OF AMERICA

FEDERAL TRAE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

In the Matter of )

)

)

)

)

)

)

)

)

)

)

DOCKET NO. 9356

Ardagh Group S.A.,

a public limited liability company, and

Compagnie de Saint-Gobain,

a corporation, and

Saint-Gobain Containers, Inc.,

a corporation,

(PROPOSED) ORDER

Upon consideration of the Unopposed Motion of Non-Party Crown Holdings, Inc. for In

Camera Treatment of Proposed Trial Exhibits, it is hereby ORDERED that the Motion is

GRATED. It is fuher ORDERED that pursuant to Rule 3.45(b) of the Federal Trade

Commission Rules of Practice, 16 C.F.R. § 3.45(b), the following documents shall be subject to

in camera treatment and wil be kept confidential and not placed on the public records of this

proceeding for five years: CROWN0006927-32, CROWN0006943-49, CROWN0007030-33,

CROWN0007034-7034.0023, and CROWN0007621-7621.0016. It is further ORDERED that

pursuant to Rule 3.45(b) of the Federal Trade Commission Rules of Practice, 16 C.F.R.

§ 3.45(b), the deposition excerpts identified in Exhibits A and C, and contained in Exhibit I, shall

be subject to in camera treatment and wil be kept confidential and not placed on the public

records of this proceeding for five years.

D. Michael Chappell

Administrative Law Judge

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EXHIBIT A

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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

BUREAU OF COMPETITION

MERGERS II DIVISION

November 19,2013

Sebastian Lorigo

Bureau of Competition

Federal Trade Commission

601 New Jersey Ave, N.W.

Washington, DC 20001

(202) 326-3717

slorigo@FTC.gov

Via Federal Express

Justin Pentz, Esq.

DechertLLP

Cira Centre

2929 Arch Street

Philadelphia, P A 19104

RE: In the Matter of Ardagh Group S.A., and SaintGobain Containers, Inc., and Compagnie de Saint

Gobain, Docket No. 9356

Dear Mr. Pentz:

By this letter we are providing formal. notice, pursuant to Rule 3.45(b) of the

Commission's Rules of Practice, 16 C.F.R. § 3.45(b), that Complaint Counsel intends to offer the

documents and testimony referenced in the enclosed Attachments A and B into evidence in the

admnistrative trial in the above-captioned matter. Please note that the list of deposition

designations in Attachment B does not include any of Complaint Counsel's counter-designations,

ifany, which are not due until November 25,2013.

The administrative trial is scheduled to begin on December 19,2013. All exhibits

admitted into evidence become part of the public record unless Administrative Law Judge D.

Michael Chappell grants in camera status.

For documents or testimony that include sensitive or confidential information that you do

not want on the public record, you must fie a motion seekig in camera status or other

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confidentiality protections pursuat to 16 C.F.R §§ 3.45 and 4.10(g). Because counterdesignations are not yet due, this includes all passages of deposition testimony that warant in

camera treatment, whether or not Complait Counsel has designated those passages. Judge

Chappell may order that materials, whether admitted or rejected as evidence, be placed in

camera only after finding that their public disclosure will likely result in a clearly-defined,

serious injury to the person, parership, or corporation requesting in camera treatment.

Motions for in camera treatment for evidence to be introduced at trial must meet the strict

standards set fort in 16 C.F.R. § 3.45 and explained in In re Dura Lube Corp., 1999 FTC

LEXIS 255 (Dec. 23, 1999); In re Hoechst Marion Roussel, Inc., 2000 FTC LEXIS 157 (Nov.

22,2000); and In re Basic Research, Inc., 2006 FTC LEXIS 14 (Jan. 25, 2006). Motions also

must be supported by a declaration or affidavit by a person qualified to explain the confidential

natue of the materiaL. In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23,

2004).

Please be aware that under the curent scheduling order, the deadline for fiing motions

seeking in camera status is November 26, 2013.

Additionally, in lieu ofa deposition on the admissibilty of the documents listed in

Attachment A, we ask that you sign and retur the attached declaration regarding the

admssibility of these documents. Please retur the signed declaration to my attention by

December 3,2013, if possible, as a scaned .pdf attached to an e-maiL.

If you have any questions, please feel free to contact me at (202) 326-3717.

Sincerely,

Sebastian Lorigo

/17

Counsel Supportg the Complaint

Attchments

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ATTACHMENT A

EÌÛibIUilÌlì1ëÎ'

PX4335 0117?/2012 CROWN0007621

EiìdBätè

CROWN0007621

PX6046 8/20/2013 N/A N/A

CONFIDENTIAL

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1 FTC Docket No. 9356
ATTACHMENT B

Name: Mitchell, Neil

Company: Crown Holdings, Inc.

Date & Type: 8/20/2013 Deposition (PX6046)

7:3 - 5

10:22 - 13:7

25:15-17

25:19 - 21

28:18 - 23

28:25 - 29:18

29:21 - 30:8

55:20 - 56:5

56:14 -16

74:15-17

74:19 - 24

75:2 - 4

79:7 - 23

80:16 -18

80:20 - 81:10

81:12 - 15

103:21 - 105:8

106:24 - 108:7

109:3 - 8

109:12 - 14

110:4 - 7

110:9 -16

110:19 - 20

110:22 - 23

110:25 - 111:7

111:9 -16

111:18

111:20 - 21

113:18 - 25

118:3 - 122:2

122:5 - 123:9

CONFIDENTIAL 1

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FTC Docket No. 9356
UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMSSION

OFFICE OF ADMIISTRATIVE LAW JUGES

In the Matter of

Ardagh Group S.A.,

a public limited liabilty company, and

DOCKET NO. 9356

Compagnie de Saint-Gobain, a corporation,

and

Saint-Gobain Containers, Inc.,

a corporation.

DECLARATION

I, , pursuant to 28 U.S.C. § i 746, make the following

statement:

i. I am an employee of Crown Holdings, Inc. I have personal knowledge of the facts set fort

in this declaration, and if called as a witness I could and would testify competently under

oath to such facts.

2. I have reviewed the documents referenced in Attachment A to this Declaration, which have

been identified by Complaint Counsel with PX numbers for use as exhibits in the abovecaptioned matter.

3. I hereby certify that each document referenced in Attachment A herein: (a) was made at or

near the time of the occurrence of the matters set fort by, or from information transmitted

by, a person with knowledge of those matters; (b) was kept in the course of regularly

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conducted activity; and (c) was made by the regularly conducted activity as a regular

practice.

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

tre and correct to the best of my knowledge, information, and belief.

Executed on:

Name:

Title:

2
EXHIBITB

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SHEARMN & STERLING llP

801 PENNSYlVANIA AVENUE, NW I WASHINGTON, DC I 20004.2634

WWW.SHEARMAN.COMIT +1.202.508.8000 I F +1.202.508.8100

marklanpher@shearman.com

202.508.8120

November 19, 2013

CONFIDENTIAL

Via Email and U.S. Mail 

Paul Friedman

DechertLLP

1900 K Street, N.W.

Washington, D.C. 20006

Re: In the Matter ofArdagh Group S.A. et ai.! Docket No. 9356 (F.T.C)

Dear Mr. Friedman,

Pursuant to Paragraph 10 of the Protective Order in the above-referenced matter (enclosed), the

Scheduling Order in the above-referenced matter, Paragraph 7 of the Stipulated Side Agreement

to Protective Order between the parties and Crown Holdings, Inc. entered into on July 31, 2013,

and 16 C.F.R. § 3.45 (enclosed), this letter is providing notice to Crown Holdings, Inc. that

Respondents Ardagh Group S.A., Compagnie de Saint-Gobain, and Saint-Gobain Containers

plan to introduce confidential material produced by Crown Holdings, Inc. into evidence at the

Commssion's hearing in the above-referenced matter, scheduled to commence on December 19,

2013.

Respondents intend to introduce into evidence the following confidential material produced by

Crown Holdings, Inc. in the above-referenced matter or FTC v. Ardagh Group s.A., et ai., No.

13-cv-1021 (BJR) (D.D.C.):

· Document with bates range CROWN0006927 - CROWN0006932

· Document with bates range CROWN0006943 - CROWN0006949

· Document with bates range CROWN0007030 - CROWN0007033

· Document with bates range CROWN0007034 - CROWN0007034.0023

Pursuant to the Scheduling Order, a part may fie a motion for in camera treatment of its

confidential material with the Administrative Law Judge by November 26,2013. The strict

standard for motions for in camera treatment of confidential material is set forth in 16 C.F .R. §

3.45, and is explained in In re Dura Lube Corp., 1999 FTC LEXIS 255 (Dec. 23, 1999); In re

ABU DHABI I BEIJING I BRUSSELS FRANKFURT I HONG KONG I LONDON I MILAN I NEW YORK I PALO ALTO

PARIS i ROME I SAN FRANCISCO I SÃO PAULO I SHANGHAI I SINGAPORE I TOKYO I TORONTO I WASHINGTON, DC

SHEARMAN & STERLING lLP IS A LIMITED LIABILIT PARTNERSHIP ORGAIZED IN THE UNITED STATES UNDER THE LAWS OF THE STATE OF DELAWARE, WHICH LAWS LIMIT THE PERSONA LIABILITY OF PARTNERS.

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Paul Friedman

Page 2

November 19,2013

.!

. I

Hoechst Marion Roussel, Inc., 2000 FTC LEXlS 157 (Nov. 22, 2000) and 2000 FTC LEXlS 138

(Sept. 19,2000); In re Basic Research, Inc., 2006 FTC LEXlS 14 (Jan 25.2006). Motions must

be supported by a declaration or affidavit by a person qualified to explain the confidential natue

of the documents. In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23,

2004). Each part or non-part that files a motion for in camera treatment shall provide one

copy of the documents for which in camera treatment is sought to the Administrative Law

Judge.

ifyou have any questions, please feel free to contact me at 202.508.8120.

Best regards,

/s/ Mark Lanpher

Mark Lanpher

Enclosures: Protective Order for Docket No. 9356 (entered July 1,2013); 16 C.F.R. § 3.45

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EXHIBIT C

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Pentz, Justin

From: Jason Swergold -=Jason.Swergold@Shearman.com~

Date: November 26, 2013 at 2:52:22 PM EST

To: "Friedman, Paul" -=paul.friedman@dechert.com~

Cc: Mark Lanpher -=Mark.Lanpher@Shearman.com~

Subject: RE: In the Matter of Ardagh Group - Letter to P. Friedman

Paul,

Pursuant to the scheduling order in this case, yesterday the parties were required to identify

any counter-designations of deposition testimony that they may seek to introduce during

the hearing. I write to advise you that Respondents have identified the following additional

testimony:

17:4-6,17:8-13,17:25,18:2-3,18:6,18:8-11,22:11-13,

22:15-16,22:18-21,23:3-8,23:18-23,23:25, 24:2-5, 24:7-9,

24: 12-14,27: 17-19,27:21-22,30:9-16, 37:3-14, 37: 16-17,

50:3-5,50:11-13,50:15,51:6-8,51:12-14,52:24-25,53:2-5,

55:13-18,56:17-24,57:15-16,57:20-22,57:24-25,58:2,

63:13-23,63:25,64:2-3,68:21-25,69:4-6,69:8-9,80:7-15,

129:5-8, 130: 10-24, 131 :4-5

Best,

Jason

Jason M. Swergold

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 I M +1.516.343.5487

jason.swergold@shearman.com I www.shearman.com

From: Jason Swergold

Sent: Thursday, November 21, 2013 3:04 PM

1

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To: 'pauIJriedman@dechert.com'

Cc: Mark Lanpher

Subject: RE: In the Matter of Ardagh Group - Letter to P. Friedman

Paul,

This is to advise you that the Administrative Law Judge has granted a motion filed by

Ardagh to extend the deadline for motions for in camera treatment of confidential

materials. Accordingly, any motion that you may seek to file for in camera treatment is now

due on December 9. A copy of the judge's order is attached.

Best,

Jason

Jason M. Swergold

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 i M +1.516.343.5487

jason.swergold@shearman.com I www.shearman.com

From: Jason Swergold

Sent: Tuesday, November 19, 2013 7:35 PM

To: 'paul.friedman@dechert.com'

Cc: Mark Lanpher

Subject: In the Matter of Ardagh Group - Letter to P. Friedman

Dear Mr. Friedman,

Please see the attached letter. A hard copy of the letter and enclosures will arrive via US

maiL.

Regards,

Jason M. Swergold

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 i M +1.516.343.5487

jason.swergold@shearman.com i www.shearman.com

IRS Circular 230 Disclosure

Any tax advice contained in this communication is not intended or written to be used, and cannot

be used, for the purose of avoiding tax penalties and is not intended to be used or referred to in

promoting, marketing or recommending a parership or other entity, investment plan or

arrangement.

* * * * * * * * * * * * * * * * * * * * ** * * * * * * ** * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * ** * * * * *

This communication and any attachments may be privileged or confidentiaL. If you are not the

intended recipient, you have received this in error and any review, distribution or copying of this

communication is strictly prohibited. In such an event, please notify us immediately by reply

email or by phone (collect at 212-848-4000) and immediately delete this message and all

attchments.

2

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i '

I

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EXHIBITS D-I

Redacted in Full
EXHIBIT J

Public
UNITED STATES OF AMERICA

FEDERA TRAE COMMSSION

OFFICE OF THE ADMINISTRA TIVE LAW JUDGES

In the Matter of )

)

)

)

)

)

)

)

)

)

)

DOCKET NO. 9356

Ardagh Group S.A.,

a public limited liability company, and

Compagnie de Saint-Gobain,

a corporation, and

Saint-Gobain Containers, Inc.,

a corporation

DECLARTION OF NEILL MITCHELL

1. My name is Neil MitchelL. I am over the age of 21, have never been convicted of

a felony or a crime involving moral turpitude, and am otherwise competent to make this

Declaration. Each and every statement contained in this Declaration is tre and correct based on

my personal knowledge.

2. I am currently employed by Crown Holdings, Inc. ("Crown") as Vice President of

Marketing and Strategic Development for Crown's beverage can division in the United States

and Canada.

Before this position, I worked for Crown as

Regional Vice President of Sales in the Southwestern United States. I have also worked for

Crown as a director of marketing. In total, I have been employed by Crown in various roles for

12 years.

3. I understand that the FTC, Ardagh, and Saint-Gobain have indicated that they

may use certain Crown documents at the administrative trial in this matter, including

CROWN0006927~32, CROWN0006943-49, CROWN0007030-33, CROWN0007034-

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7034.0023, and CROWN0007621-762L.0016. I have personal knowledge regarding all of these

documents

4. Each of these documents reflects Crown confidential information that is not

known by individuals outside of Crown.

All of this information is confidential to Crown and is known

only by certain individuals within Crown. Crown has expended resources to develop this

information and to keep it confidentiaL.

5. Crown would suffer significant injur if these documents were disclosed to

Crown's competitors or made publicly available. Crown's competitors and customers would

have access to Crown's most sensitive business information and could use that information to

take advantage of Crown. Competitors could use the information in competitive bidding

situations or to adjust to Crown's competitive strategy. Customers could use the information to

gain an advantage in pricing or other negotiations. Competitors and customers - who could not

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obtain this Crown sensitive infonnation elsewhere - would be able to put the confdential

materials to great use. Crown would incur substantial damage.

6. I futher understand that ceiiain portions of my deposition have been designated

for possible use in the administrative trial in this matter. I have reviewed those portions of the

deposition. Like the documents discussed above, these deposition portions reflect confdential

Crown inonnation not otherwise known to Crown's competitors, customers, or the general

For the same reasons as discussed above with regard to

documents, the disclosure of these deposition portions would cause significant injury to Crown.

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

and COlTect.

Dated: December 9,2013 1-:~.;I. /) ~ .1 /ì //.f~ir-

~,... . .-"~~~--"'.''')..._"I /

Neil Mitchell

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