UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL TRADE COMMISSION, 

 Plaintiff, 

 v. 

ARDAGH GROUP, S.A., 

COMPAGNIE DE SAINT-GOBAIN, and 

SAINT-GOBAIN CONTAINERS, INC., 

 Defendants. 

 Case No. 1:13-CV-01021 (BJR) 

 PUBLIC VERSION 

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS 

 MOTION FOR PRELIMINARY INJUNCTION 

REDACTED VERSION 

FOR PUBLIC FILING* 

*The Federal Trade Commission files this non-confidential redacted version of its Memorandum 

of Law in Support of its Motion for Preliminary Injunction, filed August 28, 2013. The 

Protective Order requires all information designated “Confidential” to be redacted from the 

public version of the pleading filed with the court. Although Defendants designated all 

information and documents redacted in this Memorandum as “Confidential,” most of the 

information does not appear to be commercial information, the disclosure of which would cause 

injury to their businesses. 
ii 

TABLE OF CONTENTS 

INTRODUCTION ...........................................................................................................................1 

STATEMENT OF FACTS ..............................................................................................................5 

I. Glass Containers Have Unique Attributes. ......................................................................... 6 

II. The Glass Container Industry Is Already Consolidated. .................................................... 8 

III. Ardagh And Saint-Gobain Compete With Each Other Today. ........................................... 9 

IV. Anchor Alleged A Relevant Product Market Of Glass Containers Only, Excluding 

Plastic and Metal. .............................................................................................................. 11 

V. The Commission Challenges Ardagh’s Acquisition Of Saint-Gobain. ............................ 12 

ARGUMENT .................................................................................................................................12 

I. THE FTC HAS RAISED “SERIOUS, SUBSTANTIAL” ISSUES APPROPRIATE 

FOR AN ADMINISTRATIVE TRIAL. ........................................................................... 12 

II. THE PROPOSED TRANSACTION IS PRESUMPTIVELY UNLAWFUL. ................. 15 

A. Two Relevant Product Markets Are The Manufacture And Sale Of Glass Containers 

To (1) Beer Brewers And (2) Spirits Distillers. ............................................................ 16 

1. Defendants’ and Third Parties’ Documents And Actions Show That The Relevant 

Product Markets Include Only Glass Containers. .................................................... 19 

2. Plastic Bottles And Metal Cans Are Not In The Relevant Product Markets. ........... 23 

3. Case Law Supports The Commission’s Definition Of The 

Relevant Product Markets. ....................................................................................... 30 

B. The Relevant Geographic Market Is The United States. .............................................. 33 

C. The Transaction Is Likely To Lead To Reduced Competition And Higher Prices. ..... 35 

1. The Acquisition Is Presumptively Unlawful Because It Will Substantially Increase 

Concentration. .......................................................................................................... 35 

2. The Acquisition Will Likely Result In Coordinated Anticompetitive Effects. ........ 36 

3. The Acquisition Will Eliminate Head-to-Head Competition Between Ardagh and 

Saint-Gobain. ........................................................................................................... 40 

III. DEFENDANTS’ REBUTTAL ARGUMENTS FAIL, AND, AT BEST, RAISE ISSUES 

FOR RESOLUTION IN THE ADMINISTRATIVE TRIAL. .......................................... 41 

A. High Barriers To Entry And Expansion Exist In The Glass Container Industry. ......... 42 

B. Defendants’ Efficiency Claims Are Largely Unfounded. ............................................. 43

 IV. THE PUBLIC INTEREST STRONGLY FAVORS PRELIMINARY RELIEF TO 

PRESERVE THE STATUS QUO. ...............................................................44 

CONCLUSION ..............................................................................................................................45

 
iii 

 TABLE OF AUTHORITIES

CASES 

Brown Shoe Co. v. United States, 370 U.S. 294 (1962) ........................................................ passim

Eastman Kodak Co. v. Image Technical Servs. Inc., 504 U.S. 451 (1992) ................................. 32 

* FTC v. CCC Holdings, Inc., 605 F. Supp. 2d 26 (D.D.C. 2009) (Collyer, J.) .................... passim

FTC v. Coca-Cola Co., 641 F. Supp. 1128 (D.D.C. 1986), vacated as moot, 829 F.2d 191 (D.C. 

Cir. 1987) ................................................................................................................................ 2, 3 

FTC v. Dean Foods Co., 384 U.S. 597 (1966) ............................................................................. 45 

FTC v. Elders Grain, Inc., 868 F.2d 901 (7th Cir. 1989) ....................................................... 13, 14 

FTC v. Exxon Corp., 636 F.2d 1336 (D.C. Cir. 1980) ............................................................ 14, 32 

FTC v. Food Town Stores, Inc., 539 F.2d 1339 (4th Cir. 1976) ............................................. 14, 45 

* FTC v. H.J. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001) ...................................................... passim 

FTC v. PPG Indus., Inc., 798 F.2d 1500 (D.C. Cir. 1986) ........................................................... 16 

* FTC v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 1997) ..................................................... passim 

* FTC v. Swedish Match, 131 F. Supp. 2d 151 (D.D.C. 2000) .............................................. passim 

FTC v. University Health, Inc., 938 F.2d 1206 (11th Cir. 1991) .................................................. 45 

FTC v. Weyerhaeuser Co., 665 F.2d 1072 (D.C. Cir. 1981) ........................................................ 45 

* FTC v. Whole Foods Market, Inc., 548 F.3d 1028 (D.C. Cir. 2008) .................................. passim 

Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485 (2d Cir. 2004) ................ 25, 30, 31 

Hosp. Corp. of Am.v. FTC, 807 F.2d 1381 (7th Cir. 1986) .......................................................... 16 

In re Owens-Illinois, 115 F.T.C. 179 (1992) .......................................................................... 32, 33 

Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210 (D.C. Cir. 1986) ........... 19, 30 

United States v. Baker Hughes Inc., 908 F.2d 981 (D.C. Cir. 1990) ...................................... 16, 41 

United States v. Continental Can Co., 378 U.S. 441 (1964) .................................................. 32, 33 

* United States v. H&R Block, Inc., 833 F. Supp. 2d 36 (D.D.C. 2011) ............................... passim 

United States v. Visa USA, Inc., 163 F. Supp. 2d 322 (S.D.N.Y. 2001) ....................................... 42 
iv 

STATUTES

FTC Act § 5, 15 U.S.C. § 45 .................................................................................................. passim 

FTC Act § 13(b), 15 U.S.C. § 53(b) ...................................................................................... passim

Clayton Act § 7, 15 U.S.C. § 18 ............................................................................................ passim

OTHER AUTHORITIES 

Phillip E. Areeda, Herbert Hovenkamp et al., Antitrust Law ....................................................... 39 

R. Posner & F. Easterbrook, Antitrust Cases, Economic Notes and Other Materials .................. 33 

Joseph Farrell, Fox, or Dangerous Hedgehog? Keyte and Schwartz on the 2010 Horizontal 

Merger Guidelines, 77 ANTITRUST L.J. 661 (2011) ................................................................. 32 

U.S. Dep’t of Justice & Federal Trade Commission, 2010 Horizontal Merger Guidelines .. passim 

GLOSSARY 

For the Court’s convenience, we have attached a name glossary identifying the individuals and 

companies whose testimony is cited herein. 
1 

The Federal Trade Commission (“FTC” or the “Commission”) has commenced an action 

in this Court under Section of 13(b) of the FTC Act seeking to enjoin preliminarily Ardagh 

Group S.A. (“Ardagh”) from completing its acquisition of Saint-Gobain Containers, Inc. (“SaintGobain” or “Verallia North America”) until the resolution of the Commission’s pending 

administrative case to determine the legality of the proposed acquisition. The Commission 

respectfully submits this memorandum of law in support of its preliminary injunction motion. 

INTRODUCTION 

 The Commission seeks to halt an acquisition that, if consummated, would dramatically 

concentrate the glass container industry in the hands of two manufacturers and lead to higher 

prices for glass beer and spirits bottles. For years, three manufacturers have dominated the $5 

billion glass container industry in the United States. The second- and third-largest of these 

manufacturers, Ardagh and Saint-Gobain, now propose to merge in a transaction that would 

create a durable duopoly. Under well-settled precedent and the Commission’s merger 

guidelines, this merger to duopoly is presumptively unlawful. Indeed, a top Ardagh sales 

executive stated in June 2013 that Ardagh believes the transaction “may not get approved” since 

“it is going from 3 to 2 major suppliers.”1

 

 The Commission has initiated an administrative proceeding to adjudicate the legality of 

the proposed transaction under the antitrust laws, and the trial in that proceeding begins on 

December 2, 2013. Thus, the only issue for this Court is whether to grant interim relief by 

enjoining the Defendants from consummating the proposed acquisition pending the upcoming 

merits trial. The Court should do so because such interim relief is necessary to prevent consumer 

harm and to preserve the possibility of an effective remedy. 

 

1

 PX 1574. 
2 

Under Section 13(b) of the FTC Act, the Commission is entitled to a preliminary 

injunction “[u]pon a proper showing that, weighing the equities and considering the 

Commission’s likelihood of ultimate success, such action would be in the public interest.” 15 

U.S.C. § 53(b). At this stage, the Commission is not required to prove whether the acquisition, 

is, in fact, illegal under the antitrust laws. “That responsibility lies with the FTC” after a full 

administrative hearing. FTC v. Whole Foods Market, Inc., 548 F.3d 1028, 1035 (D.C. Cir. 2008) 

(Brown, J.). The FTC creates a strong “presumption in favor of preliminary injunctive relief” by 

raising “questions going to the merits so serious, substantial, difficult and doubtful as to make 

them fair ground for thorough investigation, study, deliberation and determination by the FTC in 

the first instance and ultimately by the Court of Appeals.” FTC v. H.J. Heinz Co., 246 F.3d 708, 

714-15 (D.C. Cir. 2001). The Commission undoubtedly has met that standard here. 

To counter this strong presumption, coupled with the strong “public interest in effective 

enforcement of the antitrust laws,” defendants must show “particularly strong equities” that favor 

allowing the acquisition to close before trial. Id. at 726-27; Whole Foods, 548 F.3d at 1035 

(Brown, J.). Defendants cannot do so. At best, Defendants’ arguments only underscore the 

“serious, substantial” questions to be resolved in the administrative trial. 

This acquisition will likely cause anticompetitive effects in at least two relevant antitrust 

product markets: the manufacture and sale of glass containers to (1) beer brewers (“Brewers”) 

and (2) spirits distillers (“Distillers”). Both are relevant antitrust markets for the purposes of 

assessing the acquisition’s competitive impact because other types of containers, such as 

aluminum cans or plastic bottles, are not economically viable substitutes for glass. 

The proper delineation of the relevant market is ultimately “a matter of business reality – 

a matter of how the market is perceived by those who strive to profit in it.” FTC v. Coca-Cola 
3 

Co., 641 F. Supp. 1128, 1132 (D.D.C. 1986), vacated as moot, 829 F.2d 191 (D.C. Cir. 1987). 

On that question, the evidence leaves little doubt. 

 Glass container manufacturers refer to the “three majors” of glass container 

manufacturing, tell the investment community they operate in a glass container market, 

and calculate market shares based only on glass container sales. 

 Aluminum and plastic container manufacturers have testified that they do not compete 

directly with glass. 

 Glass container manufacturers bid for contracts knowing their customers have already 

excluded aluminum cans or plastic bottles from consideration. 

 Brewers and Distillers who sell products in glass bottles want glass – not cans or plastic 

– because their customers demand it. As one Brewer explained when asked: “Who 

determines the mix of packaging? Consumers.”2

 

 Brewers and Distillers do not change their brands’ packaging based on variations in the 

relative prices of glass, metal, or plastic containers. 

 Unless enjoined, Ardagh’s planned $1.7 billion acquisition of Saint-Gobain would 

produce a single firm controlling percent of the U.S. glass container industry, according to 

Ardagh’s own assessment. The only other major U.S. manufacturer – Owens-Illinois, Inc. 

(“O-I”) – controls roughly percent of the industry. The post-acquisition duopolists would 

collectively control approximately percent of the glass container market for Brewers and 

percent for Distillers, easily exceeding the levels required to establish a presumption that the 

acquisition violates the antitrust laws. The remaining competitors are fringe importers and 

small-scale or niche manufacturers. 

Today, Ardagh, Saint-Gobain, and O-I – the “three majors,” to borrow a term from 

Ardagh’s documents – recognize their mutual incentives to avoid excess capacity that could lead 

to greater price competition. Indeed, Ardagh’s North American President described the glass 

container industry as having “evolved” to be “very disciplined with ‘well-balanced’ if not tight 

 

2
supply demand dynamics." 3 

Still, Brewers and Distillers today benefit from competition among the major glass 

manufacturers by encomaging those manufactmers to bid for their business, and those benefits 

accme to consumers. The proposed acquisition would end that competition between Ardagh and 

Saint-Gobain and lead to higher prices for beer and spirits bottles. It would also dramatically 

increase the ease and likelihood of coordination between the only two remaining Majors in a 

"highly concentrated market, with stable market shares, low growth rates and significant baniers 

to en1ly" - a situation that provides "few incentives to engage in healthy competition. " FTC v. 

CCC Holdings, Inc., 605 F. Supp. 2d 26, 66 (D.D.C. 2009) (Collyer, J.). 

The baniers to entry in this market are exu·aordinarily high. Glass plants cost hundreds 

of millions of dollars and take years to build. Not smprisingly, Defendants tout the fact that 

"new market enu·ants are faced with meaningful baniers to en1ly , including significant start-up 

costs (estimated at $200 million for a new plant)," and other baniers.6 Where, as here, the 

market is ripe for coordination and new en1ly is improbable, "no comt has ever approved a 

merger to duopoly." Heinz, 246 F.3d at 717. 

3 PX 1260-004; Fredlake Dep. at 126-27. 

see also Grewe Dep. at 128 

6 PX 1247-008. 

4 
STATEMENT OF FACTS 

Americans consume more than 18 billion beer and spirits products packaged in glass 

containers each year, 

7 and the vast majority of these containers are manufactured by the Three 

Majors: Ardagh, Saint-Gobain, and 0 -!.8 The Three Majors sell their glass bottles to America's 

alcoholic beverage companies, who, in tum , fill them with their products to meet the demands of 

the individual consumers who ultimately pmchase and enjoy their products. Each of the Three 

Majors has a network of manufactming plants in the United States: Ardagh has 9 plants, SaintGobain has 13, and 0 -I has 17. Given shipping costs, the Three Majors' geographically 

distributed networks of plants are a key competitive asset.9 

There is a fringe of independent, single-plant glass container manufacturers in the United 

States, but these manufactmers account for only eight percent of glass container sales to 

Distillers and less than one percent of glass container sales to Brewers. 10 None of these 

independent manufactmers has more than one U.S. glass container plant. 11 Three beverage 

companies also each operate a single glass container manufactming plant: E. & J. Gallo Wine1y 

(through Gallo Glass Company), Anheuser-Busch InBev ("ABI") (through Longhom Glass 

Corporation), and MillerCoors (through Rocky Mountain Bottle Company - a joint ventme with 

0-I). 

7 See PX 4067; PX 2040-019. 

8 PX 2000-031; PX 1264-017; see also PX 1433-002; PX 1054-011; PX 6012 (Rhea IH Tr. at 157-58). SaintGobain operates tmder the name "Verallia North America" or "VNA." The Commission will use the abbreviation 

"IH Tr." to refer to transcripts of swom testimony provided in FTC investigational hearings. 

9 See PX 1233-045; 

10 PX 7003. 

categories of glass, like kitchenware or scientific glass. 

12 

5 
Two Mexican manufacturers, Vitro and Fevisa, 

cunently export comparatively small volumes of beer and spirits bottles to the United States. 

Thus, the U.S. fringe, self-suppliers, and Mexican fmns have a limited impact on competition for 

glass container sales to U.S. Brewers and Distillers.

14 

Beer bottles account for 58 percent of total glass containers usage in the United States.

15 

Spirits bottles account for 4 percent.16 All glass containers are made through the same basic 

manufacturing process, and the Three Majors also manufacture glass containers for other enduses, such as wine, foods, and condiments. 17 The manufacturing process for other types of glass, 

such as flat window glass, table glass (e.g., drinking glasses and kitchenware), and specialty 

phannaceutical or industrial glass is different. Defendants do not compete with the 

manufacturers of these other types of glass in the United States.

18 

I. Glass Containers Have Unique Attributes. 

Brewers and Distillers prize glass containers because the qualities of glass convey a 

desirable or distinctive product image. 19 Glass reflects light in a unique way, preserves flavor, 

and extends shelf life?0 Glass has low gas petmeability which helps to maintain the freshness of 

15 PX 1378-029. 

16 PX 1378-029. 

17 PX 1378-029. 

18 PX 6007 (Wall IH Tr. at 18-19). 

19 PX 1378-029. 

20 PX 1378-006, 029; 

6 
beer or to presetve the quality of spirits likely to sit on a bar for a long time? 1 Glass is also 

regarded as chemically ine1i, made from non-toxic raw materials, and infinitely recyclable.22 

The lmique qualities of glass containers make them attractive to bottlers seeking to build 

or maintain a pruticular brand identity.23 Individual consumers, restamants, and bars desire the 

prelnium image glass connotes?4 Brewers and Distillers tum to glass containers to create iconic 

brands, such as 

Other types of containers, such as alulninum cans or plastic bottles, lack the attributes 

that make glass unique in the eyes of Brewers and Distillers. Indeed, Ardagh has admitted in this 

action that it believes that glass containers "will continue to maintain a leading presence in the 

high-end beverage [] segment[] due primarily to consumer preferences and the prelnium 

perception that glass offers, despite the broader impact of the substitution of plastic and other 

altemative packaging materials."26 In addition to glass, some Brewers also use alulninum cans to 

package beer, and some Distillers use plastic bottles to package spirits.

27 But these other 

22 PX 1378-006, -029. 

26 Ardagh Response to Request for Admission25 . 

7 
materials have their own attributes that differ from those of glass containers, and Brewers and 

Distillers who pmchase glass do not view plastic or metal containers as equivalent to glass.28 

II. The Glass Container Industry Is Already Consolidated. 

The Three Majors are the product of significant consolidation in the U.S. glass container 

industly. Before 1983, there were 19 U.S. glass container manufacturers with multiple 

manufacturing plants.

29 As a result of multiple mergers in the 1980s and 1990s, Three Majors 

came to dominate the industly : 0-I, Saint-Gobain, and Anchor Glass Container Cotp oration 

("Anchor"), now owned by Ardagh.

30 

Ardagh Group, a Emopean glass and metal company, has hastened fmther consolidation. 

Ardagh entered the U.S. glass container industly in 2012 by acquiring Leone Industi·ies, a small, 

single-plant glass manufacturer. Then, in July 2012, Ardagh acquired Anchor and its eight 

plants? 1 Only six months later, in Janumy 2013, Ardagh announced this proposed acquisition of 

Saint-Gobain, which would consolidate the Three Majors down to two. 

Before 2006, the Three Majors sought to fill excess capacity by vigorously competing to 

or This price competition led to lower mm·gins for the Three Majors 

and lower prices for customers. 

33 Profit and financial perfmmance suffered?4 

29 PX 1067-019. 

30 PX 1067-019. 

31 Given Anchor's long history in the industly and Ardagh's recent pw-chase of the company, many people continue 

to refer to Ardagh Glass North America as "Anchor." For convenience, the Commission will refer to Ardagh Glass 

Nmih America simply as "Ardagh" unless it is relevant to distinguish the parent company from the North American 

glass unit. 

32 Grewe Dep. at 77; PX 2000-222; PX 1381-010; PX 2290-001. 

33 

8 
9 

The Three Majors have reversed that trend by pursuing a “price over volume” strategy 

(also referred to as “value over volume” or “margin before volume”).35 All Three Majors 

recognized they would benefit from keeping capacity and demand in close balance and 

maintaining disciplined pricing policies that ensured higher profits.36 The Three Majors 

“rightsized” or “rationalized” capacity by closing plants and furnaces.37 They exercised 

disciplined pricing. And they adopted contracts featuring “cost pass-through” or “price 

adjustment formula” terms that shift the risk of volatility in manufacturing costs – like energy, 

raw materials, and labor – to their customers.38 

III. Ardagh And Saint-Gobain Compete With Each Other Today. 

Despite the Three Majors’ recognition of their aligned incentives, glass container 

customers today still benefit from competition. For example, after an Anchor spirits customer 

obtained a lower price quote from O-I in August 2011, Anchor’s CEO wrote that it 

 A July 2011 email from Anchor’s Vice President of Sales 

aptly described current competitive constraints: 

 

The Three Majors closely monitor each other’s capacity, customer contracts, price 

increase timing, and other competitive activity.41 Most large Brewers and Distillers invite the 

Majors to submit competitive bids and buy directly from them under negotiated supply 

 34 PX 1381-010; PX 2000-019, 219, 222; PX 6002 (Wieclaw IH Tr. at 259-60). 

35 PX 1381-010; PX 2000-222; PX 2227-002; PX 1381-010; PX 6004 (Fredlake IH Tr. at 111-13). 

36 PX 1260-004; PX 6012 (Rhea IH Tr. at 61-62). 

37 PX 1067-020. 

38 Grewe Dep. at 85-88; PX 6003 (Wilkes IH Tr. at 67); PX 1204-009; PX 2000-222; PX 1206-017. 

39 PX 1283-001. 

40 PX 1049-001. 

41 See PX 1021; PX 2366; PX 2000-030, 32, 300; PX 1046-001; PX 1126-001; PX 6012 (Rhea IH Tr. at 232-33). 
agreements typically lasting three to five years.

42 Thus, customers seek to encourage 

competition between Ardagh and Saint-Gobain on a regular basis. Defendants' docmnents and 

customer testimony show how Ardagh and Saint-Gobain actively compete.43 

In myriad business docmnents, Ardagh and Saint-Gobain identify each other as key 

competitors, and recent testimony confinns that competitive relationship.

44 Anchor's 2012 

presentation to Ardagh identified only the Three Majors and attributed 

market shares in an overall glass container market ofl percent to Anchor, I percent to SaintGobain, andl percent to 0-1.45 

Head-to-head price competition between Ardagh and Saint-Gobain is common. 

In 2012, 

- used competitive pressure from Saint-Gobain to get lower pricing from Ardagh.47 

Likewise, in its 2012 negotiation, the craft brewer used competitive pressure 

from .AJ:dagh to negotiate a lower price and other benefits from Saint-Gobain.

48 

solicited 

44 See, e.g. , PX 2000-059-66; PX 2007-029-033; PX 1019-003; PX 1264-017; PX 6001 .. IH Tr. at 40); PX 

6013 - IH Tr. at 232). 

45 PX 1264-017. 

46 See, e.g. , PX 1399; PX 1037; PX 1043; PX 2157; PX 1398; PX 2434-016; PX 1543; PX 1399-001 ; PX 1417-015; 

PX 1406; PX 2436-003; PX 2437-005. 

47 

48 

10 
bids for glass bottles in 2012 from all Three Majors and believes that the bidding among them 

directly led to lower prices.

49 

Ardagh and Saint-Gobain also compete directly with one another to offer customers 

superior service, product quality, and innovation, 5° better supply reliability, 5

1 and better options 

on other non-price factors. 52 

IV. Anchor Alleged A Relevant Product Market Of Glass Containers Only, 

Excluding Plastic and Metal. 

Defendants may tly to convince this Court that they compete as closely with plastic and 

metal container manufacturers as with glass container manufacturers. But Anchor, Ardagh's 

predecessor in the U.S., told a starkly different stoty to another federal comt when describing the 

relevant markets in which it competes. In 2001, Anchor sued 0-I to prevent 0-I from acquiring 

a conti·olling stake in Anchor, alleging that 0-I's proposed acquisition would violate Section 7 of 

the Clayton Act-the same law at issue here. In its complaint, Anchor asserted that: 

• "In the glass container industry , three companies account for well in excess of 90% of the 

United States market." 

• The "relevant market is the market for the manufacture and sale of glass containers of 

various types, designs and sizes in the United States," and there are also "nan ower 

cf PX 6002 (Wieclaw 

11 
12 

relevant product markets” including the manufacture and sale of glass containers for 

certain beer and spirits products. 

 The market is “highly concentrated” and is a “mature, low-growth” business. 

 “[C]ustomers depend on competition among glass container manufacturers to keep prices 

down and to insure high standards of service and quality.” 

 “For a substantial percentage of purchasers of glass containers, substitution of other 

materials such as plastic would not be feasible in response to a small but significant nontransitory increase in the price of glass containers.”55 

Ultimately, the lawsuit settled, but Anchor’s admissions provide critical insights into the 

economic realities of the marketplace. 

V. The Commission Challenges Ardagh’s Acquisition Of Saint-Gobain. 

Ardagh and Compagnie de Saint-Gobain, Saint-Gobain’s parent company, entered into a 

Share Purchase Agreement on January 17, 2013, pursuant to which Ardagh proposes to acquire 

Saint-Gobain for approximately $1.7 billion on or before January 13, 2014. On June 28, 2013, 

the Commission voted to file an administrative complaint challenging the acquisition and 

authorized Commission staff to seek a preliminary injunction enjoining the acquisition pending 

the resolution of the Commission’s administrative trial. 

ARGUMENT 

The question before this Court is whether it is in the public interest to order Defendants to 

refrain from closing their transaction until the FTC has concluded its ongoing administrative 

proceeding. Under controlling law, the answer is plainly yes. 

I. THE FTC HAS RAISED “SERIOUS, SUBSTANTIAL” ISSUES 

APPROPRIATE FOR AN ADMINISTRATIVE TRIAL. 

The Commission has determined that it has “reason to believe” that Ardagh’s proposed 

acquisition of Saint-Gobain violates Section 7 of the Clayton Act and Section 5 of the FTC Act. 

 

55 PX 1379 ¶¶ 1, 10-13 (Complaint, Anchor Glass Container Corp. v. Owens-Illinois, Inc., No. 8:01-cv-1849 (M.D. 

Fla. Sep. 26, 2001)). 
13 

In these circumstances, Section 13(b) of the FTC Act authorizes the Commission to seek a 

preliminary injunction halting the merger until the Commission “has had an opportunity to 

adjudicate the merger’s legality in an administrative proceeding.” CCC Holdings, 605 F. Supp. 

2d at 35 (citing 15 U.S.C. § 53(b)). The merits trial is scheduled to begin on December 2, 2013 

before an administrative law judge, and discovery in that action is nearly complete. Although 

the acquisition agreement permits Defendants to close in early 2014 (and could presumably be 

extended), Defendants have threatened to close their acquisition before the completion of the 

administrative trial. Ardagh intends to litigate the merits trial to conclusion regardless of 

whether this Court grants the Commission injunctive relief. Ardagh’s counsel told the 

administrative law judge: “[i]f the injunction issues, the parties intend to continue on the 

administrative proceeding. We will continue to litigate. . . .That is not bluster, Your Honor.”56 

Thus, the only issue for this Court is whether the Commission is entitled to a preliminary 

injunction to preserve its ability to obtain effective relief and to prevent consumer harm. 

 Section 13(b) of the FTC Act enables the Commission to seek to preserve the status quo 

in this precise situation. The legislation authorizes the Court to issue a preliminary injunction 

“where such action would be in the public interest—as determined by a weighing of the equities 

and a consideration of the Commission’s likelihood of success on the merits.” Heinz, 246 F.3d 

at 714. The Court must balance these two “public interest” considerations on a sliding scale. 

See CCC Holdings, 605 F. Supp. 2d at 35 (citing Heinz, 246 F.3d at 714); Whole Foods, 548 

F.3d at 1035 (Brown, J.); FTC v. Elders Grain, Inc., 868 F.2d 901, 903 (7th Cir. 1989) (Posner, 

J.). The greater the FTC’s showing of likelihood of success on the merits, the heavier the 

 

56 PX 0005 (Initial Scheduling Conference Transcript) at 9. 
14 

defendants’ burden to show “particularly strong equities” in their favor. Whole Foods, 548 F.3d 

at 1035 (Brown, J.); Elders Grain, 868 F.2d at 903. 

In Section 13(b), Congress demonstrated its concern that “injunctive relief be broadly 

available to the FTC.” Heinz, 246 F.3d at 714 (quoting FTC v. Exxon Corp., 636 F.2d 1336, 

1343 (D.C. Cir. 1980)). Accordingly, Section 13(b) eases the more stringent injunction standard 

required of private parties. Id.; see also Whole Foods, 548 F.3d at 1042 (Tatel, J.) (“[T]he FTC – 

an expert agency acting on the public’s behalf – should be able to obtain injunctive relief more 

readily than private parties.”). Thus, at this stage, the FTC is not required to prove, nor is this 

Court required to find, that the proposed acquisition would violate the antitrust laws. CCC 

Holdings, 605 F. Supp. 2d at 35 (citing Staples, 970 F. Supp. at 1070). As the D.C. Circuit 

recognized in Heinz, “[t]hat adjudicatory function is vested in the FTC in the first instance.” 246 

F.3d at 714 (quoting FTC v. Food Town Stores, Inc., 539 F.2d 1339, 1342 (4th Cir. 1976)).

The Commission has met the standard for showing a likelihood of success on the merits 

because the evidence here raises “serious, substantial questions meriting further investigation.” 

Whole Foods, 548 F.3d at 1049 (Tatel, J.); id. at 1035 (Brown, J.); Heinz, 246 F.3d at 714-15; 

see also CCC Holdings, 605 F. Supp. 2d at 36. Defendants’ admissions alone raise serious 

questions of illegality surrounding this acquisition. Anchor alleged in its 2001 antitrust lawsuit 

that the “market for the manufacture and sale of glass containers in the United States is highly 

concentrated” and “the three largest producers . . . account for in excess of 90% of the domestic 

volume.”57 The glass container industry remains just as concentrated today as it was then. 

The proposed acquisition would create a duopoly in markets with high entry barriers and 

conditions ripe for coordination – an outcome “no court has ever approved.” Heinz, 246 F.3d at 

 

57 PX 1379 ¶ 13. 
15 

716-17; see, e.g., CCC Holdings, 605 F. Supp. 2d 26 (preliminarily enjoining three-to-two 

merger of insurance software providers); FTC v. Swedish Match, 131 F. Supp. 2d 151 (D.D.C. 

2000) (preliminarily enjoining merger of loose-leaf tobacco firms where “the top two firms left. . 

. will have ninety percent of the market.”); FTC v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 

1997) (preliminarily enjoining three-to-two merger of office supply superstores); United States v. 

H&R Block, Inc., 833 F. Supp. 2d 36 (D.D.C. 2011) (permanently enjoining three-to-two merger 

of tax software firms). There is no reason for this Court to be the first to bless such a merger. 

 Under the second prong of the Section 13(b) analysis, there is a general presumption in 

favor of the FTC in the weighing of the equities because “‘the public interest in the effective 

enforcement of the antitrust laws’ was Congress’s specific ‘public equity consideration’ in 

enacting” Section 13(b). Whole Foods, 548 F.3d at 1035 (Brown, J.) (quoting Heinz, 246 F.3d at 

726). No compelling public equities favor allowing this acquisition to close before the trial. 

Private equity considerations, such as a risk that a transaction will not occur, are given little 

weight. Whole Foods, 548 F.3d at 1034-35 (Brown, J.); CCC Holdings, 605 F. Supp. 2d at 75-

76. Here, because Defendants confirmed that they will litigate through trial regardless of this 

Court’s ruling, there is nothing to weigh. Preserving the status quo will protect the public 

interest and will not harm Defendants, who can close their transaction if they succeed in the 

ongoing administrative proceeding. 

II. THE PROPOSED TRANSACTION IS PRESUMPTIVELY UNLAWFUL. 

Section 7 of the Clayton Act bars mergers or acquisitions “the effect of [which] may be 

substantially to lessen competition, or to tend to create a monopoly” in “any line of commerce or 

. . . activity affecting commerce in any section of the country.” 15 U.S.C. § 18. “Congress used 

the words ‘may be substantially to lessen competition’ to indicate its concern was with 

probabilities, not certainties.” Heinz, 246 F.3d at 713 (quoting Brown Shoe Co. v. United States, 
16 

370 U.S. 294, 323 (1962)). Thus, an acquisition violates Section 7 if it “create[s] an appreciable 

danger of [anticompetitive] consequences in the future. A predictive judgment, necessarily 

probabilistic and judgmental rather than demonstrable, is called for.” Heinz, 246 F.3d at 719 

(quoting Hosp. Corp. of Am.v. FTC, 807 F.2d 1381, 1389 (7th Cir. 1986)). An acquisition that 

violates the Clayton Act will also violate Section 5 of the FTC Act. See FTC v. PPG Indus., 

Inc., 798 F.2d 1500, 1501 n.2 (D.C. Cir. 1986). 

Courts typically analyze the likely competitive effects of an acquisition by determining 

“(1) the ‘line of commerce’ or product market in which to assess the transaction; (2) the ‘section 

of the country’ or geographic market in which to assess the transaction; and (3) the transaction’s 

probable effect on competition in the product and geographic markets.” Staples, 970 F. Supp. at 

1072. Under this analysis, the Commission must first show “undue concentration in the market 

for a particular product in a particular geographic area.” CCC Holdings, 605 F. Supp. 2d at 36 

(quoting United States v. Baker Hughes Inc., 908 F.2d 981, 982 (D.C. Cir. 1990)). That prima 

facie showing establishes a presumption that the acquisition is unlawful. Id. at 36. The burden 

of rebutting that presumption then shifts to Defendants, who must show “that the market-share 

statistics [give] an inaccurate account of the [acquisition’s] probable effects on competition in 

the relevant market.” Id. at 36 (quoting Heinz, 246 F.3d at 715). This Court need not resolve the 

merits of Defendants’ rebuttal case. Rather, in this Section 13(b) action, the Court must issue the 

preliminary injunction unless the rebuttal arguments are so compelling they extinguish all the 

“serious, substantial” questions of legality raised by this acquisition. Id. at 67. 

A. Two Relevant Product Markets Are The Manufacture And Sale Of Glass 

Containers To (1) Beer Brewers And (2) Spirits Distillers. 

Two relevant product markets in which to assess the effects of this acquisition are the 

manufacture and sale of glass containers to (1) Brewers and (2) Distillers. The Court should 
17 

enjoin the transaction if the FTC shows a likelihood of success in either relevant product market. 

See Heinz, 246 F.3d at 713 (“The statutory test is whether the effect of the merger ‘may be 

substantially to lessen competition’ ‘in any line of commerce in any section of the country.’”) 

(quotation omitted). 

“A ‘relevant product market’ is a term of art in antitrust analysis.” H&R Block, 833 F. 

Supp. 2d at 50. The Supreme Court has explained that “[t]he outer boundaries of a product 

market are determined by the reasonable interchangeability of use or the cross-elasticity of 

demand between the product itself and substitutes for it.” Brown Shoe Co., 370 U.S. at 325. In 

other words, courts consider whether different “products can be used for the same purpose, and, 

if so, whether and to what extent purchasers are willing to substitute one for the other.” H&R 

Block, 833 F. Supp. 2d at 51 (quoting Staples, 970 F. Supp. at 1074). 

In defining an antitrust product market, courts consider “such practical indicia as industry 

or public recognition of the [relevant market] as a separate economic entity, the product’s 

peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, 

sensitivity to price changes, and specialized vendors.” Whole Foods, 548 F.3d at 1037-38 

(Brown, J.) (quoting Brown Shoe, 370 U.S. at 325); see also CCC Holdings, 605 F. Supp. 2d at 

38; H&R Block, 833 F. Supp. 2d at 51. 

Courts also rely on the Federal Trade Commission and U.S. Department of Justice 

Horizontal Merger Guidelines (“Merger Guidelines”).58 See H&R Block, 833 F. Supp. 2d at 52 

(citing Staples, 970 F. Supp. at 1081-82); CCC Holdings, 605 F. Supp. 2d at 38 n.12; Heinz, 246 

F.3d at 716 n.9, 718. The Guidelines define a relevant market economically by asking whether a 

monopolist of a particular group of substitute products could profitably impose a “small but 

 

58 The U.S. Department of Justice and Federal Trade Commission Horizontal Merger Guidelines (2010) are attached 

as PX 0004 and available online at http://www.ftc.gov/os/2010/08/100819hmg.pdf. 
significant non-transitoty increase in price" ("SSNIP") over those products, or whether 

customers switching to altemative products would make such a price increase lmprofitable. 

Merger Guidelines§ 4.1.1; see also CCC Holdings, 605 F. Supp. 2d at 38 n.12. A five percent 

price increase is often appropriate in applying this "hypothetical monopolist" test. Merger 

Guidelines § 4.1.2. Fmther, if a hypothetical monopolist of a set of products (e.g., glass 

containers) can target a pru.ticular subset of customers (e.g., Brewers) for a small but significant 

non-transitoty increase in price, it is appropriate to "identify relevant markets defmed around 

those tru.·geted customers." Merger Guidelines, § 4.1.4. Indeed, the Guidelines use glass 

container producers to illustrate this ve1y principle with the following hypothetical example: 

Glass containers have many uses. In response to a price increase for glass containers, some 

users would substitute substantially to plastic or metal containers, but baby food 

manufacturers would not. If a hypothetical monopolist could price separately and limit 

arbitrage, baby food manufacturers would be vulnerable to a targeted increase in the price of 

glass containers. The Agencies could deftne a distinct market for glass containers used to 

package baby food. 

Merger Guidelines§ 4.1.4. 

Mru.·ket conditions today show that Brewers and Distillers are vulnerable to a targeted 

price increase. 5

9 Faced with a five percent price increase, enough Brewers and Distillers would 

pay the higher price to make the price increase profitable for a hypotheticalmonopolist.60 As 

one brewer who sells beer in both glass bottles and cru.1s testified: "As a practical matter, absent 

59 Glass container manufactmers set prices separately for different customers and can limit arbitrage. They know 

their customers' relative willingness to pay for glass containers and charge different prices to different classes of 

customers (e.g., Brewers, Distillers, non-alcoholic beverage producers, etc.). Manufactmers typically negotiate 

contracts on an individual basis, resulting in different prices even for customers within the same ,.,.,.,o.·wv 

among glass buyers is tmlikely, and there is no evidence of it occuring today. 

-

18 
a dramatic increase in the price of glass relative to aluminum, we are likely to produce and sell 

the vast majority of om products in glass for a ve1y long time. "61 

Indeed, even large Brewers and Distillers cannot shift their glass pmchases to make a 

price increase unprofitable. 

-

1. Defendants' and Third Parties' Documents And Actions Show That The 

Relevant Product Markets Include Only Glass Containers. 

Detennination of the relevant market "is a matter of business reality- a matter of how the 

market is perceived by those who strive for profit in it." Staples, 970 F. Supp. at 1079 (quotation 

omitted). "When detennining the relevant product market, com1s often pay close attention to the 

defendants' ordina1y comse of business docmnents." H&R Block, 833 F. Supp. 2d at 52. In 

docmnent after document, Defendants' own words and actions reveal that competitive conditions 

in the glass container industly drive their pricing and business strategy. See Rothery Storage & 

Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 218 n.4 (D.C. Cir. 1986) ("[I]ndustly ... 

recognition of the [relevant market] as a separate economic unit matters because we assume that 

19 
20 

economic actors usually have accurate perceptions of economic realities.”) (quotation omitted); 

see also Whole Foods, 548 F.3d at 1045 (Tatel, J.). 

Defendants refer to themselves and O-I as the “three majors” and routinely calculate their 

market shares based only on glass container shipments.65 See H&R Block, 833 F. Supp. 2d at 53 

(references to the “Big Three” competitors and market shares in documents supported relevant 

market finding); Staples, 970 F. Supp. at 1079 (references to the “Big Three”). Ardagh boasts 

that its “North American Glass Expansion” will make it the “#1 Player [with] 49% Market 

Share.”66 Likewise, in marketing itself for acquisition last year, Anchor identified its 

“Competitive Landscape” as including only Anchor, Saint-Gobain, and O-I, and attributed 93 

percent of an overall glass container market to those three firms.67 Other investor presentations 

depict the market in similar terms.68 Markets described in investor presentations are “strong 

evidence” of the relevant product market. H&R Block, 833 F. Supp. 2d at 52-53. 

Defendants’ day-to-day business documents identify a glass-only market as well. See 

Staples, 970 F. Supp at 1079-80 (relying on business documents in relevant market analysis). 

 

 

 

65 PX 1264-017; PX 2000-292, -340; PX 1433-002; PX 1054-011; see also PX 6012 (Rhea IH Tr. at 157-58). 

66 PX 1360-012; see also PX 1199-018. 

67 PX 1264-017. 

68 PX 1279-014, 018, 019; PX 1378. 

69 PX 1021; PX 1418; PX 6001 (Love IH Tr. at 33). 

70 PX 6001 (Love IH Tr. at 65-70). 
21 

 

 

Anchor’s admissions in its 2001 antitrust lawsuit confirm that the product markets 

include glass containers only. While Ardagh may find it convenient to disown these admissions, 

Anchor excluded plastic and metal containers from its relevant product markets based on facts 

that remain true today: “[C]ustomers depend on competition among glass container 

manufacturers to keep prices down,” and “[f]or a substantial percentage of purchasers of glass 

containers, substitution of other materials such as plastic would not be feasible” in response to a 

SSNIP in the price of glass containers.73 Ardagh itself has also acknowledged glass containers 

as a relevant antitrust market in the past. In its 2010 acquisition of a Dutch metal can company, 

Ardagh argued to European antitrust regulators that “the glass container market is a distinct 

product market from the market for other forms of rigid packaging in general,” in part because 

customers seek bids for glass and other materials independently.74 Ardagh recognizes the 

business realities of that important distinction. Its own glass and metal businesses are organized 

separately with separate sales forces and management teams.75 

 

71 See PX 2000-049-102. 

72 See PX 2000-048-058 (O-I), -059-066 (Anchor); cf. Grewe Dep. at 94-98. 

73 PX 1379 ¶ 12. 

74 PX 7002 ¶ 10. In 2005, Ardagh purchased the second-largest glass container supplier in the United Kingdom and 

argued in an antitrust review before the U.K. Office of Fair Trading that the relevant market was the “production of 

glass containers.” PX 7001-015, -042. 

75 PX 6007 (Wall IH Tr. at 23-25). 
22 

 

 

 

 

 

Independent analysts also recognize the importance of competition among glass 

manufacturers. In May 2013, Jefferies investment bank released a report stating that Ardagh’s 

proposed acquisition of Saint-Gobain “would create an oligopoly where O-I and Ardagh would 

have a combined 92% market share” thus “setting the [North American glass container] industry 

up for a nice up cycle in price.”81 When rating Anchor in 2010, Moody’s noted there are “only 

three major competitors” in the “consolidated” glass packaging industry in North America.82 

In sum, Ardagh, Saint-Gobain, investors, and public analysts all consider 

competition among glass container firms to be economically meaningful and distinct from 

competition with manufacturers of other types of packaging. 

 

76 

77 

78 

79 

80 

81 PX 3024-001. 

82 PX 1201-002. Likewise, in a 2011 report on the “North American glass industry,” JP Morgan noted that the 

Three Majors comprise 90 percent of the market. PX 2291-004; see also PX 1214-017. 
2. Plastic Bottles And Metal Cans Are Not In The Relevant Product 

Markets. 

Defendants may argue that Brewers and Distillers can defeat a price increase by 

switching to plastic and metal containers. The facts show othe1wise. The threat of Brewers and 

Distillers switching to cans and plastic bottles would not constrain a glass container monopolist 

from raising prices "at the ... practical price increase levels that trigger antitmst concem-the 

typical five to ten percent price increase of the SSNIP test." H&R Block, 833 F. Supp. 2d at 57. 

Cans and plastic are generally cheaper than glass containers, and many Brewers and Distillers 

ah·eady package some of their products in aluminum cans and plastic bottles. As Anchor's CFO 

explained to a lender in 2012, "[i]fthe key consideration is cost, bottlers will [choose] cans or 

plastic."83 As discussed ftnther below, Brewers and Distillers choose to buy glass containers not 

based on the relative prices of different packaging materials, but because their customers demand 

their products in glass. 

i. Glass Bottles Are Not In Price Competition With Plastic Or Metal 

Containers. 

When compared to plastic and metal containers, glass containers have "peculiar 

characteristics,"

84 "unique production facilities,"85 and, most imp01tantly, "distinct prices." 

Whole Foods, 548 F.3d at 1037-38 (Brown, J.) (citing Brown Shoe practical indicia). Ample 

evidence demonstrates that competition among the Tluee Majors constrains glass container 

prices today.86 Defendants have admitted that from 2003 to 2013, overl percent of the revenue 

from their most significant lost sales to Brewers and Distillers went to another supplier of glass 

83 PX 1085-003. 

84 See PX 1428-001-010; PX 1378-029. 

85 PX 6001 (Love IH Tr. at 70). 

23 
containers, as opposed to a supplier of another type of packaging. 

87 Direct price competition 

between glass container suppliers and plastic or metal container suppliers rarely occurs,

88 does 

not meaningfully constrain Defendants,

89 and is scarcely even plausible because glass containers 

in general are significantly more expensive than plastic or metal containers of equivalent size and 

volume.90 

_. Brewers and Distillers have testified that threatening to shift their packaging away 

from glass to other materials would be "an idle threat" and that the Three Majors would not "take 

such a threat seriously" in price negotiations.93 

87 For beer or spirits accotmts or customers where Ardagh or Saint-Gobain lost more than 30 percent of the ammal 

glass container sales revenue to another supplier of glass containers or due to substitution of a product other than 

glass containers, over I percent of the revenue from those lost sales was to another supplier of glass containers. 

See Ardagh Response to Requests for Admission Nos. 6 and 7; Saint-Gobain Response to Requests for Admission 

Nos. 7 and 8. 

88 See, e.g., PX 6004 (Fredlake IH Tr. at 258); PX 6001 (Love IH Tr. at 212-14); PX 6002 (Wieclaw IH Tr. at 101-

102); Grewe Dep. at 107; Love Dep. at 35-36. 

exception, not constrain glass prices. 

91 Grewe Dep. at 13 (plastic), 32 (cans); Fredlake Dep. at 18-20 (plastic), 28-29 (cans). 

24 
When purchasing glass containers, Brewers and Distillers request bids from the Three 

Majors and use competitive bidding to get better prices.

94 These bid requests - known as 

requests for pricing or requests for quotation - specify glass containers only.95 Thus, the Majors 

know they are bidding against other glass suppliers - not plastic or metal finns.96 Moreover, 

customers who convert a product from glass to another material generally do not offer the Three 

Majors a chance to compete against the new material to keep the product in glass; customers 

usually present their decision as in the words of Ardagh 's North American 

President. 97 And, once customers conve1i to another material, they do not retum to glass. 98 

ii. Glass, Metal, And Plastic Containers Are Not Close Competitors. 

There is no evidence that glass container sales to Brewers or Distillers respond to price 

changes in plastic or metal containers - or vice versa. For example, the price of glass containers 

relative to aluminum cans increased approximately 80 percent between 1981 and 2011 , while the 

propmiion of beer sold in glass bottles has remained stable.99 These price differentials confnm 

that glass containers are not in the same product market as plastic or metal. See H&R Block, 833 

F. Supp. 2d at 55 (" [T]he absence of close price competition" distinguishes relevant market); 

Swedish Match, 131 F. Supp. 2d at 165 ("Distinct pricing is also a consideration" in relevant 

market analysis); see also Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 496-97 

(2d Cir. 2004). Other economic evidence, including a critical loss analysis perfonned by the 

96 PX 6002 (Wieclaw IH Tr. at 101-102); Love Dep. at 35-36; cf PX 6004 (Fredlake IH Tr. at 258); PX 6001 (Love 

IH Tr. at 212-14); Grewe Dep. at 107. 

97 PX 6004 (Fredlake IH Tr. at 258); see also Grewe Dep. at 107. 

98 See PX 6007 (Wall IH Tr. at 270); see also PX (Rhea IH Tr. at 173). 

99 PX 0006 (Expert Rep01t of Dr. Frederick Warren-Boul on ~ 51. 

25 
Commission 's expe1t economist, also confnms that glass containers sold to Brewers and 

Distillers are relevant product markets.

100 

Testimony from major plastic and metal container companies also indicates that these 

companies' containers are not in the same relevant product markets as glass. Plastic and metal 

films do not view glass manufacturers as direct competitors, 101 and do not bid against glass 

manufacturers for business. 102 The plastic and metal companies underscore what Ardagh tells its 

own investors: that glass containers compete only " indirectly" with these other materials.

103 

iii. There Is Economic Demand For Beer And Spirits In Glass. 

To be sure, as a technological matter, beer and spirits can be packaged in both glass and 

other packaging materials, and Brewers and Distillers at times offer their brands in multiple 

package types or convert a product from glass to other packaging. But the fact that some beers 

are sold both in cans and in glass, or that Distillers may sell some products in plastic and others 

in glass, simply cannot tell us "whether and to what extent purchasers [i.e., Brewers and 

Distillers] ar e willing to substitute one for the other." H &R Block, 83 3 F. Supp. 2d at 51 

(quoting Staples, 970 F. Supp. at 1074). 

Brewers and Distillers select different packaging materials based on myriad commercial 

constraints such as consumer preferences, marketing considerations, and the demands of 

100 PX 0006 (Expe1t Rep01t of Dr. Frederick Wan·en-Boulton) at Section VIII. 

103 PX 1393-071 ; PX 1342-015. Even if plastic or alununum companies at times ny to entice Brewers and Distillers 

to bottle more products in plastic or aluminum, that hardly means that those materials should be included in the 

same relevant market as glass containers. See H&R Block, 833 F. Supp. 2d at 54-55 (tax software not in same 

relevant market as tax stores despite attempts to convert tax store customers); Whole Foods, 548 F.3d at 1048 (Tatel, 

J.) ("[S]ufficiently umovative retailers can constitute a distinct product market even when they take customers from 

existing retailers."). 

26 
wholesale distributors and retailers.104 They analyze their customers and the situations in which 

their products are consumed and tly to match packaging to the customer and the occasion. Many 

consumers simply prefer beer in glass versus a can, while others' preferences may depend on 

whether the setting is a picnic, a tailgate party, a fancy dinner, or a night club. 105 Cf H&R Block, 

833 F. Supp. 2d at 56 (the fact that switching between tax software and tax stores was driven by 

changes in customers' personal status supported treating tax software as a distinct product 

market). 

27 
The company expects cans to add extra 

sales volumes, not to displace glass bottle sales - an expectation well supp01ted by the 

experience of other Brewers who previously introduced cans in addition to glass bottles. 110 

- would not switch its glass-bottled products "to cans or other containers even if the 

cost of glass bottles were to go up by 5 to 10 percent" because "cans are not a suitable 

replacement" for glass and " [ o ]ffering beer in a glass bottle is [their] primruy business. " 111 

Those Brewers who offer their beer in both glass and cans do not choose one f01m of 

packaging over the other. Rather, they fill orders from distributors who in tum receive orders 

from retailers who decide what to stock on store shelves or behind the bru· based on consumer 

demand. As one craft brewer testified: "Q: Who at the company, if anyone, decides what the 

mix of bottled beer versus canned beer is in any given period or year? A: The company doesn't 

decide. The consumer decides."112 

It would thus be wrong to conclude that cans are a ready substitute for glass because 

-is sold in both cans and glass bottles. Rather, the evidence (and common sense) 

dictates a vety different conclusion: Bottled beer and canned beer both exist because there is 

demand for both. 

which 

offers its beer in glass bottles and cans, had an even simpler explanation of what would happen if 

28 
it could not sell its beer in glass: "It would end om business."114 Distillers also must respond to 

demand for specific packaging. For example, after distiller- attempted to convett a 

whiskey that "was a fairly large brand" in a "pruticular area of the cmmtly" from glass bottles to 

plastic, the product experienced a "substantial fall off in business. "

115 

Testimony from many Brewers and Distillers confirms that commercial constt·aints would 

prevent them from simply substituting metal or plastic containers for glass when bottling their 

products, even if glass container prices rose five to ten percent. 116 Moreover, because glass 

containers represent a small fraction of the retail price of beer and spirits, there are stt·ong 

incentives for Brewers and Distillers to pay a price increase in glass bottles rather than to switch 

to aluminum cans or plastic bottles and risk driving consumers to competitors' products 

packaged in glass. 117 

The facts also show that there will continue to be significant demand for glass bottles for 

beer and spirits. For example, the proportion of beer packaged in glass bottles versus aluminum 

cans today is almost exactly the same as it was thnty years ago, although demand trends for each 

package type have ebbed and flowed over the years.

118 --

and the future of the U.S. glass container 

industly is bright enough for Ardagh to spend billions in two yeru·s nying to contt·ol roughly half 

("It would end our business. I don't know that it would end our business, but 

nPr!'Pnt of Our business."). 

118 PX 4067 (Beer Institute Brewers' Almanac 2012, "Package Mix Chart"). 

119 PX 1361-0031-32; 

29 
30 

the industry’s capacity. Moreover, glass container prices and margins have risen in recent years, 

and Defendants have improved their financial performance.120 

Brewers and Distillers who sell products in glass are not making irrational decisions by 

choosing glass containers, even though they are more expensive than cans or plastic. They 

carefully study their consumers and choose packaging to maximize sales and profits, relying on 

competition among glass suppliers to get the best prices. Because the Three Majors recognize 

this commercial reality, the elimination of competition due to the proposed acquisition would 

likely lead to higher prices.

3. Case Law Supports The Commission’s Definition Of The Relevant 

Product Markets. 

i. Cross-Elasticity, Not Functional Interchangeability, Is The 

Appropriate Test For Market Definition In This Case. 

The mere fact that glass, plastic, and metal containers might all be functionally

interchangeable for bottling beer and spirits does not show that they are in the same relevant 

product market. As courts in this Circuit have emphasized, “[f]inding two products to be 

functionally interchangeable . . . does not end the analysis.” Swedish Match, 131 F. Supp. 2d at 

158; see also Staples, 970 F. Supp. at 1074. Courts often exclude functionally interchangeable 

products from a relevant product market. See Swedish Match, 131 F. Supp. 2d at 158, 165; 

Staples, 970 F. Supp. at 1074, 1080; Geneva Pharms., 386 F.3d at 496-99. Indeed, the D.C. 

Circuit has long recognized that functional interchangeability is not typically one of the most 

significant criteria in market definition.121 

 

120 See Grewe Dep. at 149-51, 70-72, 77-79; Fredlake Dep. at 103, 111-12, 126; PX 2025-002; PX 1245-003; PX 

2000-51; PX 2069-009; PX 1068-021, -034; PX 2063-007. 

121 Factors such as the “physical and functional relationship” between products “may be helpful where the other 

indicia are ambiguous,” but “bear less directly upon the economic definition of a market” than the core “economic 

criteria that make one market distinct from another,” such as “‘distinct prices’ and ‘sensitivity to price changes,’” 

which directly “relate[] to the ability of the consumer to obtain substitutes for a product.” Rothery Storage & Van 

Co., 792 F.2d at 218 n.4 (quoting Brown Shoe, 370 U.S. at 325). 
31 

Cross-elasticity of demand, the responsiveness of the sales of one product to price 

changes of another, is a much more important factor. Price differentials or variant pricing trends 

often show that functionally interchangeable – even identical – products must be treated as 

separate relevant antitrust markets. In FTC v. Staples, the court found that “office superstore 

prices are affected primarily by other office superstores and not by non-superstore competitors” 

selling identical products, thus excluding non-superstore competitors from the relevant market. 

970 F. Supp. at 1077. In Geneva Pharmaceuticals, the Second Circuit held that a lack of price 

responsiveness between generic and branded versions of a chemically equivalent pharmaceutical 

compound evidenced separate product markets. 386 F.3d at 496-97. And, in H&R Block, the 

“lack of evidence of price competition” between tax software and other tax preparation services 

supported the conclusion that tax software and other tax services were not “reasonably 

interchangeable” and could not be “viewed as part of the same relevant product market.” 833 F. 

Supp. 2d at 54-55. 

The Commission is not arguing that plastic and metal containers do not compete with 

glass in an absolute sense, nor need the Commission do so. See Staples, 970 F. Supp. at 1075 

(products inside and outside the relevant market “at some level, compete with one another”); see 

also H&R Block, 833 F. Supp. 2d at 54. As Ardagh told its investors in a 2012 bond offering, 

glass containers compete “indirectly” with other forms of packaging.122 But “‘the mere fact that 

a firm may be termed a competitor in the overall marketplace does not necessarily require that it 

be included in the relevant product market for antitrust purposes.’” H&R Block, 833 F. Supp. 2d 

at 51 (quoting Staples, 970 F. Supp. at 1075). A relevant market “need not encompass the full 

range of substitutes. Including all substitutes would lead to absurdly broad markets that would, 

 

122 PX 1393-071; PX 1342-015. 
32 

as the Guidelines explain, make market shares misleading.”123 Plastic and metal containers are 

more indirect, distant competitors that will not constrain glass container pricing “at the . . . 

practical price increase levels that trigger antitrust concern.” H&R Block, 833 F. Supp. 2d at 57.

ii. The Facts Here Dictate Relevant Markets Of Glass Containers For 

Brewers And Distillers. 

In the ongoing FTC administrative proceeding, Defendants have argued that historical 

cases require including plastic and metal in any relevant product market here.124 These 

arguments are wrong. “The proper market definition in this case can be determined only after a 

factual inquiry into the commercial realities faced by consumers.” Eastman Kodak Co. v. Image 

Technical Servs. Inc., 504 U.S. 451, 482 (1992) (quotation omitted). “[M]arket definition is a 

deeply fact-intensive inquiry.” Todd v. Exxon Corp., 275 F.3d 191, 199 (2d Cir. 2001) 

(Sotomayor, J.). Thus, the fact-driven outcomes of cases involving glass containers from 

decades ago – such as United States v. Continental Can Co., 378 U.S. 441 (1964) and In re 

Owens-Illinois, Inc., 115 F.T.C. 179 (1992) – are irrelevant and cannot control the outcome here. 

Nearly fifty years ago, in Continental Can, the government challenged a merger between 

a glass container manufacturer and a metal can manufacturer. In that case, where any 

competition between the merging parties necessarily existed only at a broad level that included 

both glass and metal packaging, the Supreme Court found that the relevant market for assessing 

that particular acquisition included both glass containers and metal cans. 378 U.S. at 457. In 

more recent decades, antitrust experts, including Judge Posner and Judge Easterbrook, have 

harshly criticized Continental Can, and the case is largely inapposite here. In any event, as 

Posner and Easterbrook have explained, and as is evident from the ruling, if the merger in 

 

123 Joseph Farrell, Fox, or Dangerous Hedgehog? Keyte and Schwartz on the 2010 Horizontal Merger Guidelines, 

77 ANTITRUST L.J. 661, 663 (2011) (emphasis in original). 

124 See Introductory Statement, Answer and Defenses of Respondent Ardagh Group S.A., Docket No. 9356, Jul. 22, 

2013 (F.T.C. 2013). 
33 

Continental Can “had been between two manufacturers of cans (or of [glass] bottles), the Court 

surely would have held that cans (or [glass] bottles) were an appropriate [relevant product 

market] in which to appraise the effects of the merger.” Richard Posner & Frank Easterbrook, 

ANTITRUST CASES, ECONOMIC NOTES AND OTHER MATERIALS at 366-67 (2d ed. 1981) (quoted in 

Owens-Illinois, 115 F.T.C. at 303); see also Continental Can, 378 U.S. at 457-58. Thus, 

Continental Can cannot support including metal or plastic in the product market relevant to 

evaluating this merger – a merger of two glass makers. 

The Commission’s ruling on a prior glass container merger two decades ago also cannot 

dictate the outcome of this case, as the Commission – well aware of its prior decision – 

recognized in voting to bring this action. O-I’s acquisition of Brockway Glass in 1988 reduced 

the number of major U.S. glass container producers from six to five. See Owens-Illinois, 115 

F.T.C. at 189. The district court denied the Commission’s motion for a preliminary injunction. 

Id. at 291. The administrative law judge found the merger anticompetitive after the merits trial, 

but the Commission ultimately found competitive responses from the many remaining postmerger glass container suppliers would make anticompetitive effects unlikely. Id. at 323-26. 

That case involved starkly different facts and market concentrations. Moreover, more recent 

legal authorities, including many of the cases from this Circuit cited above, have clarified the 

standards for defining relevant product markets. These authorities provide the lodestar for this 

Court to follow in assessing the unique facts of this case. 

B. The Relevant Geographic Market Is The United States. 

The relevant geographic market for analyzing the proposed acquisition is the United 

States. Defendants have geographically distributed networks of manufacturing plants that enable 
34 

them to compete on a nationwide basis.125 Defendants bid for and capture business throughout 

the country, often shipping to customers hundreds of miles away from their plants.126 Thus, the 

United States is the “geographic area in which the defendants compete in marketing their 

products or services.” CCC Holdings, 605 F. Supp. 2d at 37. 

A geographic market larger or smaller than the United States would not accurately 

capture the competitive reality. Indeed, Ardagh admits that the relevant geographic market is no 

larger than the United States.127 Smaller geographic markets would also be inappropriate. 

Defendants routinely analyze competition and calculate market shares for the United States as a 

whole.128 Although shipping costs can be significant, they are not determinative, and Defendants 

compete with each other and other glass container manufacturers across the country. For 

example, during 2011 negotiations, obtained a lower 

price quote on glass beer bottles from O-I’s due to competition from Anchor and 

Saint-Gobain, even though Anchor and Saint-Gobain would have supplied from plants 

that were significantly farther than O-I’s 

plant.129 

 Given such nationwide competitive dynamics, the United 

States is the relevant geographic market for analyzing the effects of the acquisition. 

 

125 PX 2000-040. 

126 PX 1021; PX 2366; PX 4525-004-005. 

127 Answer and Defenses of Defendant Ardagh Group S.A., ECF No. 39, ¶ 38. 

128 PX 1264-022; PX 2078-012, -013; PX 1033-009; PX 1021; PX 1535; PX 2000-292; PX 2366. 

129

130
35 

C. The Transaction Is Likely To Lead To Reduced Competition And Higher Prices. 

Defendants’ proposed acquisition presumptively violates the Clayton Act and the FTC 

Act because it would radically increase concentration in relevant markets that are already 

concentrated. Beyond this presumption of illegality, courts typically consider whether an 

acquisition will cause anticompetitive effects under either of two rubrics: coordinated effects 

and unilateral effects. See H&R Block, 833 F. Supp. 2d at 76-77. Coordinated effects occur 

when an acquisition enhances market power “by increasing the risk of coordinated, 

accommodating, or interdependent behavior among rivals,” while unilateral effects occur when 

an acquisition enhances market power “simply by eliminating competition between the merging 

parties.” Merger Guidelines § 1. This acquisition will likely cause competitive harm under both 

frameworks, as explained below and in the accompanying report of the Commission’s expert 

economist. The result will be significantly reduced competition and higher prices. 

1. The Acquisition Is Presumptively Unlawful Because It Will Substantially 

Increase Concentration. 

An acquisition presumptively violates the Clayton Act and FTC Act where it would result 

in a firm controlling “an undue percentage share of the relevant market.” Heinz, 246 F.3d at 715. 

Market concentration is ordinarily measured by the Herfindahl-Hirschman Index (“HHI”), which 

is the sum of the squares of all competitors’ market shares.131 “Sufficiently large HHI figures 

establish the FTC’s prima facie case that a merger is anti-competitive.” Heinz, 246 F.3d at 716. 

 

131 In other words, in a market with four competitors, each of whom has 25% market share, the HHI would be 2500 

(252

 + 252 + 252 + 252). 
36 

This acquisition would result in the following market concentrations:132 

Relevant Market Pre-Acquisition HHI Post-Acquisition HHI Increase 

Glass containers for beer 2,874 3,657 782 

Glass containers for spirits 2,067 3,138 1,072 

Under the Merger Guidelines, markets with a post-merger HHI above 2,500 are “highly 

concentrated,” and mergers “resulting in highly concentrated markets that involve an increase in 

the HHI of more than 200 points will be presumed to be likely to enhance market power.” 

Merger Guidelines § 5.3. The HHI increases here – nearly four and over five times the 

presumptive limit – result in post-acquisition HHIs that far exceed the threshold for “highly 

concentrated” markets, triggering the presumption of anticompetitive effects in both relevant 

product markets.133 See Heinz, 246 F.3d at 716-17 (citing Merger Guidelines for thresholds that 

trigger the presumption of anticompetitive effects). Indeed, these increases are larger than those 

courts in this Circuit have found presumptively unlawful in other cases. See Heinz, 246 F. 3d at 

716 (increase of 510 over pre-merger HHI); H&R Block, 833 F. Supp. 2d at 72 (increase of 400 

over pre-merger HHI). 

2. The Acquisition Will Likely Result In Coordinated Anticompetitive 

Effects. 

This acquisition would leave a glass container duopoly in the United States consisting of 

Ardagh and O-I. “Merger law rests upon the theory that, where rivals are few, firms will be able 

to coordinate their behavior, either by overt collusion or implicit understanding, in order to . . . 

achieve profits above competitive levels.” Heinz, 246 F.3d at 715 (quotation omitted). 

 

132 PX 7003. PX 7003 provides the market shares and HHI calculations for the relevant markets. 

133 The HHI values above are calculated from 2012 market shares based on revenue and are conservative compared 

with some of Defendants’ own estimates, which allot them even higher market shares. The HHIs presented here 

differ slightly, but not materially, from those presented in the Complaint based on further analysis of import figures. 
37 

Coordination among duopolists may occur in many ways. For example, not only will the ability 

to coordinate pricing increase in a duopoly, but the ability to allocate customers or coordinate 

output will increase as well. Cf. Merger Guidelines § 7.2. 

The relevant markets are ripe for coordination. Indeed, many factors this Court identified 

as conducive to coordination in CCC Holdings are present here. The highly concentrated glass 

container industry has stable market shares, low growth rates, and significant barriers to entry.134 

As this Court explained in CCC Holdings, these very conditions leave “few incentives to engage 

in healthy competition.” 605 F. Supp. 2d at 66. 

 

 Id. at 65. As in CCC Holdings, the Three 

Majors have “sought to gather as much competitive information [about each other] as possible 

for a number of years, and have largely succeeded in their efforts.” Id. (internal quotation and 

citation omitted). Defendants obtain rich information about their glass competitors via several 

channels, including public statements, industry analysts, distributors, and customers.137 And 

these are certainly markets “in which the same three companies have been competing against 

each other for over a decade, making the market participants very familiar with each other.” Id. 

at 64-65. 

 

134 See, e.g., PX 1260-001, -004; PX 1247-008; PX 1336-057. 

135 See, e.g., PX 1068-025; PX 1021; PX 2366; PX 1047 (attachment); PX 1286; PX 2000 -300-01; PX 1068-036; 

PX 2019-036-37, 048.

136 See, e.g., PX 1021; PX 2000 -300-01; PX 2078-001, -027, -042, -050; PX 2366; PX 3002-004. 

137 See, e.g., PX 1385-001; PX 1252-002-003; PX 1046; PX 1044; PX 6010 (Shanteau IH Tr. at 187, 243-46). 
38 

The Three Majors also focus on selling “to their existing customers rather than engaging 

in price wars over each other’s customers.” Id. at 65. Ardagh’s customer retention rate in recent 

years exceeds percent and Saint-Gobain’s retention rate is very high as well.138 

 

 

Indeed, the Majors approach the market with a common “price over volume” strategy that 

recognizes their shared incentives to keep capacity “tight” and to avoid “price wars.”141 

 As Ardagh’s Vice President of Sales explained: 

 Defendants’ documents also reflect concern about providing competitive bids that 

could drive glass container prices down.144 

Defendants use third parties to communicate market information, including details about 

strategies for pricing and capacity. In 2009, for example, Anchor requested a call with a key 

 

138 Dep. at 129; Dep. at 189. 

139 

140 

141 PX 1381-010; PX 2000-222; PX 1054-011; PX 1245-007; PX 1296-059; PX 6010 (Shanteau IH Tr. at 253-54). 

142 See PX 2139; PX 6010 (Shanteau IH Tr. at 258). 

143 PX 1049; see also PX 6001 (Love IH Tr. at 198). 

144 See PX 2142-014; PX 1124-002; PX 1051-001.
39 

industry analyst who was in close contact with O-I and Saint-Gobain. Anchor informed this 

analyst of its “desire to play the role of the rational #3 glass provider” and indicated that its 

“curtailment efforts on capacity and balancing capacity/demand inventory are very consistent 

with what has been pursued by the leader as well.”145 Later, this same analyst relayed to Anchor 

O-I’s views concerning how “supply/demand” is being “managed in the US,” amongst other 

information.146 In another email exchange, a different analyst sent O-I comments from Anchor’s 

CEO detailing Anchor’s top customer accounts and the proportion of revenue associated with 

each customer.147 

After the proposed acquisition, “[w]ith only two dominant firms left in the market, the 

incentives to preserve market shares would be even greater, and the costs of price cutting riskier, 

as an attempt by either firm to undercut the other may result in a debilitating race to the bottom.” 

CCC Holdings, 605 F. Supp. 2d at 67. As the D.C. Circuit observed in Heinz, “[t]he creation of 

a durable duopoly affords both the opportunity and incentive for both firms to coordinate to 

increase prices.” 246 F.3d at 725. 

The D.C. Circuit further explained that “[t]acit coordination ‘is feared by antitrust policy 

even more than express collusion, for tacit coordination, even when observed, cannot easily be 

controlled directly by the antitrust laws. It is a central object of merger policy to obstruct the 

creation or reinforcement by merger of such oligopolistic market structures in which tacit 

coordination can occur.” Id. (quoting 4 PHILLIP E. AREEDA, HERBERT HOVENKAMP & JOHN L.

SOLOW, ANTITRUST LAW, ¶ 901(b)(2), at 9 (rev. ed. 1998)). 

 

145 PX 1268-002. 

146 PX 1268-001; see also PX4766, PX4767, PX4768, PX4769, PX4770 (additional exchanges with the same 

analyst). 

147 PX 4308. 
3. The Acquisition Will Eliminate Head-to-Head Competition Between 

Ardagh and Saint-Gobain. 

The acquisition will also lead to unilateral anticompetitive effects by eliminating head-tohead competition between Ardagh and Saint-Gobain that has benefited consumers. See Swedish 

Match, 131 F. Supp. 2d at 169 ("[A] lmilateral price increase ... is likely after the acquisition 

because it will eliminate one of Swedish Match's primmy direct competitors."); H&R Block, 833 

F. Supp. 2d at 88-89 (finding unilateral effects likely in merger between second- and third-lm·gest 

finns in the relevant market); Staples, 970 F. Supp. at 1083 (finding anticompetitive effects 

likely where "merger would eliminate significant head-to-head competition" between merging 

patiies). 

_.. Moreover, customers testified that they have achieved lower prices, better service and 

other benefits due to direct competition between Ardagh and Saint-Gobain.

151 

For example, in 2012,- issued requests for proposals to the Three Majors for 

its future glass bottle supply.

152 - sought a dual-sourcing atTangement for after the 

expiration, in December 2013, of its cmTent exclusive contract with Ardagh. 153 Ardagh and 

Saint-Gobain emerged as the two most attractive bidders Ardagh 

threatened to raise prices if it lost its status as exclusive glass bottle supplier, but 

148 See, e.g. , PX 1399; PX 1037; PX 1043; PX 2157; PX 1398; PX 2434-016; PX 1543; PX 1399-001; PX 14 17-001, 

-015; PX 1406; PX 2436·003; PX 2437-005; PX 6011 (Ganter IH Tr. at 86); PX 6010 (Shanteau IH Tr. at 56-59, 

184-85). 

149 See, e.g. , PX 2000-059-66; PX 2007-029-033; PX 1019-003; PX 1264-017. 

150 See, e.g., PX 6001 (Love IH Tr. at 40); PX 1068-019; PX 1226-017; PX 6010 (Shanteau IH Tr. at 235-37); PX 

1049. 

40 
41 

 used competitive pressure from Saint-Gobain to get a volume discount from Ardagh 

– effectively lowering prices.155 Similarly, Ardagh and Saint-Gobain were the 

two lowest-priced bidders in 2012 negotiations with craft brewer which used 

competitive pressure from Ardagh to obtain a lower price from Saint-Gobain.156 

Distillers too benefit from this head-to-head competition. has 

used “the threat of switching from Saint-Gobain to Anchor and Owens-Illinois to get better 

prices” on its glass bottles.157 similarly testified that 

it has benefited from direct competition between Ardagh and Saint-Gobain.158 

 

 

 

III. DEFENDANTS’ REBUTTAL ARGUMENTS FAIL, AND, AT BEST, RAISE 

ISSUES FOR RESOLUTION IN THE ADMINISTRATIVE TRIAL. 

Because the acquisition will substantially increase concentration in the relevant markets, 

the acquisition is presumptively unlawful. See CCC Holdings, 605 F. Supp. 2d at 36 (quoting 

Baker Hughes, 908 F.2d at 982). Defendants bear the heavy burden of rebutting that 

presumption. See id. (citing Heinz, 246 F.3d at 715). Neither entry of new competitors nor 

 

155 see also PX 1023. 

156 

157 

158 

159 PX 2078-001, -027, -042, -050. 

160 PX 2078-001, -027, -042, -050. 

161 PX 2078-001, -027, -042, -050. 
42 

Defendants’ claimed efficiencies can extinguish the “serious, substantial” questions of legality 

raised by the Commission’s strong prima facie case. 

A. High Barriers To Entry And Expansion Exist In The Glass Container Industry. 

Barriers to entry in the relevant markets are extremely high, as Defendants’ documents 

and testimony show. Any potential entry would not be “timely, likely, and sufficient in its 

magnitude, character, and scope to deter or counteract the competitive effects of concern.” H&R 

Block, 833 F. Supp. 2d at 73 (quoting Merger Guidelines § 9); see also United States v. Visa 

USA, Inc., 163 F. Supp. 2d 322, 342 (S.D.N.Y. 2001). 

Defendants themselves have often touted the high barriers to entry in the industry.162 A 

2010 Anchor investment memorandum states, “[i]mports and new market entrants are faced with 

meaningful barriers to entry, including significant start-up costs (estimated at $200 million for a 

new plant), high shipping cost of glass containers, long-term customer contracts, extensive mold 

libraries, and proprietary molding machinery technologies.”163 The capital investment needed to 

construct a new glass facility is at least $150-$200 million, and building a greenfield plant would 

take years for environmental permitting and building.164 Indeed, Ardagh admitted in this action 

that it believes there are high barriers to entry, “which include significant capital requirements, 

extensive technology and manufacturing know-how and existing customer relationships.”165

Meaningful expansion by fringe firms is unlikely for many of the same reasons that 

stymie new entry, especially since none of the fringe firms has more than one glass container 

 

162 See, e.g., PX 1336-057; PX 1247-008. 

163 PX 1247-008. 

164 PX 1075-081; PX 2050-036; PX 6003 (Wilkes IH Tr. at 149); PX 6004 (Fredlake IH Tr. at 47); 

165 Ardagh Response to Request for Admission 21. 
plant. Plus, many of the fringe fitms would require sizable infrastmcture investments to produce 

the types ofbeer and spirits bottles that the Three Majors make today.166 

The possibility of further vertical integration by large customers also fails to meet the 

legal threshold for timely, likely, and sufficient entry. 

B. Defendants' Efficiency Claims Are Largely Unfounded. 

Defendants argue that the II million in efficiencies Ardagh hopes to achieve from the 

acquisition will negate any anticompetitive effects. 17° Comts "have rarely, if ever, denied a 

preliminaty injunction solely based on the likely efficiencies." CCC Holdings, 605 F. Supp. 2d 

at 72. "[I]n a highly concentrated mm·ket characterized by high baniers to enhy," such as here, 

Defendants "must provide 'proof of extraordinaty efficiencies' in order to rebut the presumption 

of anticompetitive effects." Id. (quoting Heinz, 246 F.3d at 720). Defendants cannot do so. 

170 See PX 1197-014. 

43 
44 

Cognizable efficiencies must be (1) merger-specific and (2) verifiable. H&R Block, 833 

F. Supp. 2d at 89; see also Heinz, 246 F.3d 721-22; Merger Guidelines § 10. Defendants’ 

efficiency claims largely fail to meet these elements. For instance, Defendants claim they will 

save by reducing overhead within the Saint-Gobain organization. This 

claim relates to the staffing of the current Saint-Gobain organization alone and is separate from 

any additional savings to be reaped from eliminating staff positions made redundant by the 

combination of Ardagh and Saint-Gobain. Thus, the claim is not merger-specific. If SaintGobain is not staffed efficiently today, it can cut those costs on its own. This claim is also not 

verifiable because Ardagh has made no effort to identify which current Saint-Gobain employees 

have redundant responsibilities,171 and Ardagh assumes, without investigation, that none of these 

purportedly superfluous workers are, in fact, necessary. 

As if to highlight the speculative nature of their efficiency claims, Defendants have 

actually increased their claims by since they announced the acquisition.172 The basis 

for this change was not new information, but simply a desire to be less “conservative.”173 The 

Court should disregard these unverifiable and non-merger-specific claims. 

IV. THE PUBLIC INTEREST STRONGLY FAVORS PRELIMINARY RELIEF TO 

PRESERVE THE STATUS QUO. 

Allowing this acquisition to close before trial would irreparably harm the public interest. 

Congress enacted Section 13(b) of the FTC Act to make “injunctive relief [] broadly available to 

the FTC.” Heinz, 246 F.3d at 714 (citation omitted). Because “‘experience shows that the 

Commission’s inability to unscramble merged assets frequently prevents entry of an effective 

order of divestiture’ after administrative proceedings, the court must place great weight on the 

 

171 PX 6005 (Riordan IH Tr. at 192-194). 

172 PX 1192-001. 

173 PX 6005 (Riordan IH Tr. at 34-36). 
45 

public interest in blocking a possibly anticompetitive merger before it is complete.” Whole 

Foods, 548 F.3d at 1050 (Tatel, J.) (quoting FTC v. Dean Foods Co., 384 U.S. 597, 607 n.5 

(1966)); see also Heinz, 246 F.3d at 726. 

The merits trial begins on December 2nd. Preserving the status quo during the 

administrative trial will protect the public interest and will not harm Defendants, who have 

committed to litigating the merits of the acquisition. They can continue operating as usual until 

the trial is over. Defendants may claim a delay in the acquisition would harm them, but such 

private harms are accorded “little weight, lest we undermine [S]ection 13(b)’s purpose of 

protecting the public-at-large, rather than the individual private competitors.” Heinz, 246 F.3d at 

727 n.25 (citing FTC v. University Health, Inc., 938 F.2d 1206, 1225 (11th Cir. 1991) (internal 

quotation omitted)); see also id. (“Private equities do not outweigh effective enforcement of the 

antitrust laws.”) (quoting FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1083 (D.C. Cir. 1981)). 

Because this acquisition raises serious questions of illegality, the public interest strongly favors a 

preliminary injunction “until [the] FTC can perform its function.” Id. at 726 (citing Food Town 

Stores, 539 F.2d at 1346). 

CONCLUSION 

 For the reasons explained above, the Federal Trade Commission respectfully requests 

that this Court grant its motion for a preliminary injunction and prevent Ardagh from closing its 

acquisition of Saint-Gobain pending a full administrative trial to determine the legality of the 

acquisition under the antitrust laws. 
September 26, 2013 

 Respectfully submitted, 

 Of counsel: 

 

DEBORAH L. FEINSTEIN (D.C. Bar 412109) 

Director 

NORMAN A. ARMSTRONG, JR. (D.C. Bar 459621) 

Deputy Director 

Bureau of Competition 

Federal Trade Commission 

/s/ Edward D. Hassi 

EDWARD D. HASSI 

Chief Litigation Counsel 

Federal Trade Commission 

Bureau of Competition 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-2884 

Email: ehassi@ftc.gov 

Attorney for Plaintiff

 

JONATHAN NUECHTERLEIN (D.C. Bar 442470) 

General Counsel 

Federal Trade Commission 

CATHARINE M. MOSCATELLI 

Assistant Director (D.C. Bar 418510) 

BRENDAN J. MCNAMARA 

Deputy Assistant Director 

ANGELIKE A. MINA 

SEAN D. HUGHTO (D.C. Bar 421224) 

STEVEN L. WILENSKY (D.C. Bar 430398) 

MONICA M. CASTILLO 

ANGEL PRADO 

JAMES ABELL (D.C. Bar 990773) 

MEREDITH ROBINSON (D.C. Bar 498245) 

JOSHUA GOODMAN 

MICHAEL FRANCHAK 

STEVEN DAHM 

DANIELLE SIMS (D.C. Bar 982506) 

KRISTIAN ROGERS 

AMANDA HAMILTON (D.C. Bar 499646) 

SEBASTIAN LORIGO 

VICTORIA LIPPINCOTT (D.C. Bar 473839) 

Attorneys 

 

Federal Trade Commission 

Bureau of Competition 

Mergers II Division 
NAME GLOSSARY 

REDACTED IN ENTIRETY