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'~-_ SECIlARY . --~~~..~ßtiiUNITED STATES OF AMERICA

FEDERA TRAE COMMISSION

OFFICE OF ADMINISTRATI LAW JUDGES

In the Matter of

ARAGH GROUP S.A.

a public limited liability company, and

SAINT-GOBAIN CONTAINERS, INC.,

a public limited liability company, and

COMPAGNIE DE SAINT-GOBAIN,

a corporation,

Respondents.

)

)

)

)

)

)

)

)

)

)

)

PUBLIC

DOCKET NO. 9356

UNOPPOSED MOTION OF NON-PARTY MOOSEHEA BREWERIES

LIMITED FOR IN CAMERA TRETMENT OF PROPOSED EVIDENCE

Moosehead Breweries Limited ("Moosehead'), a non-part to the above styled

action, respectfully moves (the "Motion"), pursuant to 16 C.F.R. § 3.4S(b), for an order

granting In camera treatment of certain deposition testimony taken from Andrew G.

Oland, President and Chief Executive Officer of Moosehead on August 16, 2013 (the

"Oland Deposition") in connection with this adjudicative proceeding by both Complaint

counsel and Respondents counseL. Certain excerpts of such deposition testimony have

been designated by the parties for introduction in the administrative trial in this matter.

By letter dated November 19, 2013, Complaint Counsel notified Moosehead that

it intends to introduce into evidence certain excerpts of the Oland Deposition at the

administrative triaL. Counsel for Respondent Ardagh Group S.A. has also notified

Moosehead by letter dated November 19, 2013 that Respondents intend to introduce

into evidence certain excerpts from the transcripts of the Oland Deposition at triaL.

6123612.1
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Complaint Counsel and all Respondents Counsel have indicated they will not oppose

this Motion.

The Oland Deposition transcript excerpts designated by Complaint Counsel and

Respondents for possible introduction contain information whose disclosure will likely

result in serious injury to Moosehead and its business. Moreover, other portions of the

Oland Deposition that may not have been designated but that could be disclosed also

contain information whose disclosure will likely result in serious injury to Moosehead

and its business. The Oland Deposition is attached as Exhibit A to the Declaration of

Andrew G. Oland in Support of the Unopposed Motion of Non-Part Moosehead

Breweries Limited for In Camera Treatment of Proposed Evidence (the "Oland

Declaration" or "Oland Decl."), which is attached as Exhibit 1 and incorporated herein

by reference. The specific excerpts of the Oland Deposition for which Moosehead seeks

in camera treatment are identified in Exhibit B to the Declaration (collectively, the

"Confidential Information"). Moosehead seeks in camera treatment of the Confidential

Information for a period of five (5) years from the date entry of any order granting this

Motion. In addition, Moosehead seeks in camera treatment for an indefinite period of

that portion of the Confidential Information that Moosehead has additionally identified

as trade secrets of Moosehead for which the sensitivity of this information if disclosed

would not decrease over time.

The Confidential Information contains competitively sensitive information,

confidential business records, and in certain instances trade secrets, including, but not

limited to, information related to Moosehead's contract packaging relationships,

identification and description of negotiations with suppliers and customers, internal

company structure and capacity, pricing information, policies, and strategies, and

2

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business and/or marketing strategies, and which Moosehead holds in strictest

confidence. If publicly disclosed, the Confidential Information would provide

Moosehead's competitors with an unfair competitive advantage and would likely result

in irreparable harm to Moosehead's efforts to maintain and increase its competitiveness

in the marketplace, its contract packaging relationships and Moosehead's efforts to

maintain and/or lower its costs of goods sold. Therefore, pursuant to 16 C.F.R. §

3-45(b), Moosehead respectfully moves for in camera treatment of the Confidential

Information identified in Exhibit B to the Oland Declaration for a period of five years

and, as discussed below, with respect to certain limited excerpts of the Oland Deposition

for an indefinite period because such testimony constitutes trade secrets of Moosehead.

I. STANDAR FOR IN CAMERA TRETMENT

Information of a non-part produced in an adjudicative proceeding merits in

camera treatment where public disclosure "will result in a clearly defined, serious injury

to the person or corporation whose records are involved." 16 C.F.R. § 3-45(b); H.P. Hood

& Sons, Inc., 58 F.T.C. 1184, 1188 (1961). An applicant for in camera treatment must

show that the information at issue is "sufficiently secret and sufficiently material to (the

applicant's) business that disclosure would result in serious competitive injury." In re

Gen. Foods Corp., 95 F.T.C. 352, 355 (1980). See also In re Bristol-Myers Co., 90 F.T.C.

455, 456 (1977). The factors tyically considered in determining whether this standard

has been met include (1) the extent to which the information is known outside of a

business; (2) the extent to which it is known by employees and others involved in the

business; (3) the extent of measures taken by the business to guard the secrecy of the

information; (4) the value of the information to the business and its competitors; (5) the

amount of effort or money expended by the business in developing the information; and

3

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(6) the ease or difficulty with which the information could be properly acquired or

duplicated by others. In re Bristol-Myers Co., 90 F.T.C. at 456.

A showing of injury may consist of extrinsic evidence or, in certain instances, may

be inferred from the nature of the documents themselves. In re E.1. Dupont de

Nemours & Co., 97 F.T.C. 116 (1981); Hood 58 F.T.C. at 1188. Administrative law judges

have broad discretion in applying these factors to determine whether information

warrants in camera treatment. See In re Gen. Foods Corp., 95 F.T.C. 352. Moreover,

the Commission has stated that a request for in camera treatment by a non-part

company to an FTC proceeding (such as Moosehead) should be given "special

solicitude." In re Crown Cork & Seal Co., 71 F.T.C. 1714 (1967) ("(P)etitioner's plea

warrants special solicitude coming as it does from a third part bystander in no way

involved in the proceedings whose records, if in camera treatment is denied, will be

open to the scrutiny of its competitors"); accord In re Kaiser Aluminum & Chem. Corp.,

103 F.T.C. 500 (1984) (requests for in camera treatment by third parties should be

given special solicitude because, as a policy matter, such treatment encourages the third

part to cooperate with future adjudicative discovery requests).

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

camera treatment for certain business records and information. In re Champion Spark

Plug Co., 1982 FTC LEXIS 85 at *2 (April 5, 1982); Hood, 58 F.T.C. at 1188-89; In re

Kaiser Aluminum, 103 F.T.C. at 500. Where in camera treatment is granted for

business information, such as business strategies, marketing plans, pricing policies,

sales documents, or contractual relationships, it is tyically provided for two to five

years. See, e.g., In re McWaine, Inc., 2012 FTC LEXIS 143, at *4-5, 7-10, 13 (Aug. 17,

2012) (finding documents and deposition testimony comprised of customer data,

4

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pricing and cost information, business strategies, negotiating strategies, proprietary

financial information, sales volumes of certain product items, and financial and sales

information should be protected for a period of five years); In re Union Oil Co. of CaL.,

2004 FTC LEXIS 223, at *2 (Nov. 22, 2004); In re Intl Ass'n of Conference

Interpreters, 1996 FTC LEXIS 298, at *13-14 (June 26, 1996); In re Champion Spark

Plug Co., 1982 FTC LEXIS 85, at *4 (Apr. 5, 1982); In re Champion Spark Plug Co.,

1982 FTC LEXIS 92, at *5-6, 9 (Mar. 4, 1982).

In addition, Rule of Practice 3.45(b)(3) permits certain confidential information

to be protected for an indefinite period in the unusual case that the need for

confidentiality of the material, or portion thereof at issue is not likely to decrease over

time. Examples of documents meriting indefinite in camera treatment are trade secrets,

such as secret formulas, processes, and other secret technical information, and

information that is privileged. See Hood, 58 F.T.C. at 1189; In re R.R. Donnelley & Sons

Co., 1993 FTC LEXIS 32, at *3 (Feb. 18, 1993); In re Textron, Inc., 1991 FTC LEXIS 135,

at *1 (Apr. 26, 1991).

II. PORTIONS OF THE OLAD DEPOSITION MEET THE STANDAR

FOR IN CAMERA TRETMENT

Much of the information contained in the Oland Deposition and specifically

identified as Confidential Information on Exhibit B to the Oland Declaration is

confidential and broad disclosure of this information would cause serious competitive

injury to Moosehead, thereby meeting the standard set forth by the Commission for in

camera treatment. In re Gen. Foods Corp., 95 F.T.C. at 355. As set forth in the Oland

Declaration, which is incorporated into this Motion, Moosehead has expended

considerable time, effort, and expense in developing and protecting from disclosure the

5

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information in the Oland Deposition constituting Confidential Information. (Oland

Decl. ,r,r 2, 3 and 5.) Moosehead is a privately held company and it would be extremely

difficult for Moosehead's competitors or customers to obtain the information contained

in the Confidential Information. (Oland Decl. ,r,r 3 and 5.) The Confidential

.1i

Information would be difficult - if not impossible - for Moosehead's many competitors

or other outside persons to access or duplicate. (Oland Decl. ,r 3.) In addition, the

Confidential Information constitutes "Confidential Material" within the definition

contained in paragraph 1 of Attachment A to that certain Protective Order Governing

Discovery Material dated July 1, 2013 (the "Protective Order") and Complaint Counsel

and Respondents Counsel designated the entire transcript of the Oland Deposition as

confidential after the deponent's request at the outset of the Oland Deposition. (Oland

Decl. ,r 4.) It is clear that the Confidential Information has been closely guarded, is not

disseminated outside of Moosehead, is limited in its internal dissemination, and could

not easily be accessed by a competitor given Moosehead is a private company.

Significantly, at the start of the deposition that contains the Confidential

Information, and as a condition of Moosehead's CEO and President agreeing to provide

testimony about the Confidential Information, Moosehead was assured that none of the

testimony would become part of the public record and that the deposition transcript

would be marked as confidentiaL. (Oland Decl. ,r4). Moosehead relied on those

assurances and that agreement and its President and CEO would not have provided

testimony without those assurances of confidentiality.

The disclosure of any portion of the Confidential Information can irreparably

harm Moosehead's business, provide its competitors with an unfair advantage over

Moosehead and will likely lead to the loss of those business advantages over those

6

6123612.1
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.1

competitors. "The likely loss of business advantages is a good example of a 'clearly

defined serious injury.'" In re Dura Lube Corp., 1999 FTC LEXIS 255, AT *7 (Dec. 23,

1999). . For example, Moosehead discloses information related to the details of

Moosehead's contract packaging relationships, product mix, plant capacities,

negotiations with key suppliers and strategic decision making and process related to its

facilties and supplier relationships that have taken a great deal of time and expense by

Moosehead to develop. (Oland Decl. ,r,r 5, 6, 7 and 8.) If disclosed, such Confidential

Information would allow Moosehead's competitors insights that would irreparably harm

Moosehead. (Oland Decl. ,r 5.) In addition, suppliers could use such information to

their unfair advantage in subsequent negotiations, giving those competitors an unfair

competitive business advantage over Moosehead. (Oland Decl. ,r 5.)

Similarly, information regarding Moosehead's product mix and product sale

percentages, pricing and pricing risks, and costs of goods in the US market are

contained in the Confidential Information. Public disclosure of this information could

result in irreparable harm to Moosehead's efforts to retain certain business advantages

and maintain and/or lower its costs of goods sold. (Oland Decl. ,r 7.)

The Confidential Information also identifies and/or reveals business strategies,

contract details with its suppliers, and describes confidential negotiations with and

approaches to contract negotiations with suppliers. (Oland Decl. ,r,r 6, 7, and 8.) Public

disclosure of this information would provide Moosehead's competitors with valuable

insight into Moosehead's costs and business strategy, giving those competitors an unfair

competitive advantage over Moosehead and this information also could be used by

suppliers in future negotiations with Moosehead. Id. Further, Disclosure of this

7

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information could result in irreparable harm to Moosehead's efforts to maintain,

negotiate and/or improve its competitiveness in the marketplace. (Oland Decl. ,r 5.)

Based upon the above facts, and the support demonstrated by the Oland

Declaration, Moosehead has adequately demonstrated the secrecy and materiality set

forth in Bristol-Myers, 90 F.T.C. at 456-57, and, therefore, should be afforded in

camera status for the portions of the Oland Deposition identified as Confidential

Information in Exhibit B to the Oland Declaration.

III. IN CAMERA TRETMENT OF THE CONFIDENTIA INFORMTION

SHOULD EXTEND FOR NO LESS THA A FIV YE PERIOD AND

INDEFINITELY FOR CERTAIN CONFIDENTIA INFORMTION

Moosehead seeks in camera treatment for the Confidential Information portions

of the Oland Deposition for a period of five years. As a non-party seeking in camera

treatment for its confidential business information, Moosehead's request should be

treated with special solicitude. In re Kaiser Aluminum & Chem. Corp., 103 F.T.C. at

500 (order directing in camera treatment for non-part's sales statistics over five years

old). Reasonable periods of in camera treatment encourage non-parties to cooperate

with future discovery requests in adjudicative proceedings. Id. At its own expense and

the time and resources of its President and CEO, among others, Moosehead voluntarily

cooperated with the discovery request of Respondents in appearing for deposition. The

testimony has been made available for use by the parties in accordance with terms of the

Protective Order and consistent with the basis upon which Mr. Oland agreed to testify at

deposition.

The Confidential Information further identified in paragraph 10 of the Oland

Declaration warrants lasting protection because this Confidential Information is

"sufficiently secret and sufficiently material to (Moosehead'sJ business and disclosure

8

6123612.1
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would result in competitive injury." In re Gen. Foods Corp., 95 F.T.C. at 355; 16 C.F.R. §

3-4s(b); Hood, 58 F.T.C. at 1188 ("courts have generally attempted to protect

confidential business information from unnecessary airing"). Indefinite in camera

treatment is granted under certain unusual circumstances, including where the

competitive sensitivity or the proprietary value of the information will not diminish over

time. In re Coca Cola Co., 190 F.T.C. LEXIS 364 (Oct. 17, 1990). Trade secrets, secret

formulas, processes, and other secret technical information and privileged information

are examples of information given such indefinite treatment. Hoeschst Marion Roussel,

Inc., 2000 FTC LEXIS 157 (Nov. 22, 2000).

In this instance certain portions of the Confidential Information as identified in

paragraph 10 of the Oland Declaration, constitute trade secrets. Specifically, such

testimony includes fundamental information about certain supply arrangements that

impact the whole of Moosehead's business and any competitive advantage it may enjoy.

In addition, such information also includes identification of certain customers that is

not pUblicly known and whose disclosure could result in irreparable harm to the

maintenance of such relationship and later negotiations with such customers. Under

numerous state laws in the United States and the Uniform Trades Secrets Act generally,

this tye of information would constitute trade secrets that would not be revealed and

for which the negative impact of disclosure does not diminish with the passage of time. i

1 The Uniform Trade Secrets Act ("UTSA") has been adopted by fort-seven (47) states, the District of

Columbia, Puerto Rico and the U.S. Virgin Islands. Under the UTSA, the definition of "trade secret"

includes information including a formula, pattern, compilation, program, device method, technique, or

process that

(i) Derives independent economic value, actual or potential, from not being generally known to, and not

being readily ascertainable by proper means by, other persons who can obtain economic value from its

disclosure or use.

9

6123612.1
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Complaint counsel and all Respondents counsel have indicated they will not

oppose this Motion. Disclosing the Confidential Information containing Moosehead's

confidential business information will not materially promote the resolution of this

matter. Instead, the disclosure will materially harm Moosehead and cause a loss of its

business advantages. This Court should protect third parties that agree to permit

discovery with the understanding that their confidential information will be preserved

and honor the agreements that faciltate that third-part discovery. Therefore, the

balance of the public interest with Moosehead's business interests favors in camera

treatment of the Confidential Information in the Oland Deposition. A proposed Order is

attached as Exhibit 2 for the convenience of the Court.

~espeetiiy sUbmi~ .

~~

(Ohio License No. 0069503)

Hahn Loeser & Parks LLP

200 Public Square, Suite 2800

Cleveland, Ohio 44114

Telephone: (216) 621-0150

Facsimile: (216) 241-2824

E-mail: navalentine@hahnlaw.com

And

(ii) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." Unif.

Trade Secrets Act, §1 (1) (amended 1985). Similarly, Ohio and several other states use a broader

definition as follows, in pertinent part, "information, including the whole or any portion or phase of any

scientific or technical information, design, process, procedure, formula, pattern, compilation, program,

device, method, technique, or improvement, or any business infonnation or plans, financial

infonnation, or listing of names, addresses, or telephone numbers." O.R.C. § 1336.61 (2013) (emphasis

added); see also 765 ILCS 1065/2 (2013) (including non-technical data, financial data and lists of actual

or potential customers or suppliers in definition of trade secrets).

10

6123612.1
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John F. Marsh (Ohio License No. 0059236)

Hahn Loeser & Parks LLP

65 State Street, Suite 1400

Columbus, Ohio 43215

Telephone: (614) 221-0240

Facsimile: (614) 221-5909

E-mail: jmarsh@hahlaw.com

Attorneys for Non-Party Moosehead

Breweries Limited

11

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CERTIFICATE OF SERVICE

I hereby certfy that on December 6, 2013, I mailed an original and two copies

of the foregoing document along with an electronic copy on CD by F edEx for fist A.M.

delivery on December 9,2013 for filing to:

Donald S. Clark, Secretary

Federal Trade. Commission

600 Pennsylvania Avenue, NW, Room H-I13

Washington, DC 20580

I also certify that a one copy of the foregoing document has been delivered via

electronic mail, and by overnght courer (Federal Express) for delivery on December 9,2013

to:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvana Avenue, NW, Room H -110

Washington, DC 20580

I fuer cerfy that a copy of the foregoing document has been delivered via

electronic mail to:

Edward D. Hassi

James E. Abell

Monica Castillo

Steven A. Dah

Joshua Goodman

Sebastian Lorigo

Brendan J. McNamara

Angelike Mina

Cathare M. Moscatelli

Angel Prado

Krstian Rogers

Danielle Sims

Eric M. Sprague

Steven L. Wilensky

Thomas H. Brock

Michael B. Kades

Michael A. Franchak

Amanda Hamilton

Sean D. Hughto

Victoria Lippincott

Meredith Robinson

6123612.1
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Michael Lovinger

U.S. Federal Trade Commission

600 Pennylvana Avenue, NW

Washigton, DC 20580

,I

i

I

1

Counsel Supporting the Complaint

I fuer certify that a copy of the foregoing document has been delivered via

electronic mail, and by overnght courer (Federal Express) to the following parties:

Alan Goudiss (agoudiss@shearan.com)

Dale Collins (wcollins@shearan.com)

Richard Schwed (rschwed@sheanan.com)

Lisl Dunlop (ldunlop@sheanan.com)

Jason Swergold (Jason.Swergold@Shearman.com)

Shearan & Sterling LLP

599 Lexigton Avenue

New York, NY 10022

and

Heather Kafele (hkafele@shearan.com)

Mark Lanpher (Mark.Lanpher@Shearman.com)

Shearan & Sterling LLP

801 Pennsylvana Avenue, NW

Washigton, DC 20004

Counsel for Respondent Ardagh Group s.A.

Christine Varney

Y onatan Even

Athena Cheng

Cravath, Swaine & Moore LLP

825 Eighth A venue

New York, NY 10019

(212) 474-1140

cvarey@cravath.com

yeven@cravath.com

achig@cravath.com

Counsel for Respondent Saint-Gobain Containers, Inc.

Veena Viswanatha, Esq.

BuckleySandler LLP

1250 24th Street NW, Suite 700

13

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Washigton, DC 20037

vviswanatha@buckleysandler.com

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

Chong Park, Esq.

Nathanel Brower, Esq.

Steptoe & Johnson, LLP

1330 Connecticut Ave., NW

Washington, DC 20036

Phone: 202-429-3000

Fax: 202-429-3902

Email: cpark@steptoe.com

nbrower@steptoe.com

Counselfor Arkansas Glass Container Corp. (Third-Party)

December 6, 2013 -)~hian~

One of the Attorneys for Moosehead Breweries

Limited

14

6123612.1
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EXHIBITi

6123612.1
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UNITED STATES OF AMERICA

FEDERA TRAE COMMISSION

OFFICE OF ADMINISTRATIV LAW JUDGES

In the Matter of

) ARAGH GROUP S.A. )

a public limited liability company, and )

)

SAINT -GOBAIN CONTAINERS, INC., )

a public limited liability company, and )

)

COMPAGNIE DE SAINT-GOBAIN, ) a corporation, ) Respondents. ))

PUBLIC

DOCKET NO. 9356

DECLATION OF ANDREW G. OLAD IN SUPPORT OF THE

UNOPPOSED MOTION OF NON-PARTY MOOSEHEA BREWERIES

LIMITED'S FOR IN CAMERA TRETMENT OF PROPOSED EVIDENCE

I, Andrew G. Oland, declare as follows:

1. I am currently the President and CEO of Moosehead Breweries Limited

("Moosehead"), and have held the position of President since April 2008 and the

position of CEO since earlier this year. In my position I am responsibie for

overseeing the operations of the entire company.

2. I have reviewed the testimony for which Moosehead seeks in camera treatment,

namely Exhibit B to this Declaration identifyng specific excerpts of the transcript

of the Deposition of Andrew G. Oland, President and CEO of Moosehead taken

August 16,2013 (collectively, the "Confidential Information"). The transcript of

the Deposition of Andrew G. Oland taken August 16, 2013 and provided to

Moosehead by the parties to this proceeding is attached to this Declaration as

Exhibit A. By virtue of my current position with Moosehead, and having

6122252.1
PUBLIC

provided this testimony, I am familar with the information contained within the

Confidential Information. Based upon my review of the Confidential

Information, my knowledge of Moosehead's business, and my familarity with the

confidential protection afforded to this tye of information by Moosehead, it is

my belief that the disclosure of the Confidential Information to the public and to

Moosehead's competitors would cause serious and irreparable competitive injury

to Moosehead.

3. Moosehead has taken substantial measures to guard the Confidential

Information by limiting its dissemination and taking every reasonable step to

protect its confidentiality. This information is not known outside of Moosehead

except to the extent necessary to engage in confidential contract negotiations or

other confidential discussions with potential and existing customers, suppliers,

and distributors. All of the Moosehead employees with access to this information

understand the confidential and competitively..sensitive nature of this

information and are not permitted to share it with outsiders, except in the

confidential negotiations or discussions noted above. Finally, the information

contained in the Confidential Information would be diffcult - and in many

instances, impossible -- for Moosehead's many competitors or other outside

persons to access or duplicate, in part, because Moosehead is a private company.

4. In addition, at the start of my deposition, and as a condition of my agreeing to

provide testimony about the Confidential Information, I was assured that none of

my testimony would become part of the public record and that the deposition

transcript would be marked as confidentiaL. (Ex. A; Dep. at pp. 5-6, ll. 19-25, 1-4;

6122252.1
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-.. :'1;:

P.S7, L. 10). I relied on those assurances and that agreement and I would not

have provided that testimony without those assurances of confidentiality.

Moosehead is a private corporation and the information identified in #2 and #3

on Exhibit B is confidential and disclosed only to a limited number of

Moosehead employees who have a need to know the information in order to

perform their job functions. For example, that testimony reveals, among other

things, internal information about Moosehead's facilties and capacity that would

not be available anywhere else and could be used by a competitor to the

detriment of Moosehead. Public disclosure of this information could result in

irreparable harm to Moosehead's efforts to maintain and increase its

competitiveness in the marketplace.

6. The information contained in #1, #4, #6 and #7 reveals details of Moosehead's

contract packaging relationships. These relationships have taken a great deal of

time and expense to develop. Public disclosure of this information would provide

Moosehead's competitors insight into these relationships, giving those

competitors an unfair competitive advantage over Moosehead or perhaps provide

them with the opportunity to damage or undermine Moosehead's future

negotiations. In addition, the parties to those relationships, or other potential

packaging contractors could use that information to Moosehead's detriment in

their negotiations with Moosehead. Public disclosure of this information could

result in irreparable harm to Moosehead's efforts to negotiate, maintain and/or

improve its contract packaging relationships.

7. The information contained in #5 reveals details of Moosehead's packaging mix,

pricing and pricing risks, and costs of goods in the U.S. market and public

s.

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disclosure of this information could result in irreparable harm to Moosehead's

efforts to retain certain business advantages and maintain and/or lower its costs

of goods sold. This business, financial and strategic information would not

otherwse be available to competitors and if disclosed, could provide insights or

access that those competitors could use against Moosehead.

8. The information contained in #8 identifies and/or reveals contract details of its

suppliers, describes negotiations by Moosehead with suppliers, and approaches

to contract negotiations by Moosehead with suppliers. Public disclosure of this

information would provide Moosehead's competitors with valuable insight into

Moosehead's costs and business strategy, giving those competitors an unfair

competitive advantage over Moosehead or perhaps provide them with the

opportunity to damage or undermine Moosehead's future negotiations with those

suppliers. In addition, those suppliers, or other potential suppliers could use that

information to Moosehead's detriment in any future negotiations with

Moosehead. Public disclosure of this information could result in irreparable

harm to Moosehead's efforts to maintain, negotiate and/or improve its

competitiveness in the marketplace.

9. The information contained in #9 and #10 deals with industry information,

business strategy information, and/or marketing strategy information

confidential to Moosehead. Public disclosure of this information could result in

harm to Moosehead in its dealings with these issues and cause it to lose business

advantages in favor of its competitors. Were a competitor to know this

information, such a competitor could gain a significant business advantage at the

expense of Moosehead.

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10. In camera treatment of the Confidential Information specifically located in the

Oland Deposition at Page 8, line 20 through Page 9, line 3; Page 12, line 16

through line 20; Page 24, line 9 through line 16; Page 18, line 1 through Page 20,

line 20; Page 32, line 8 through Page 33, line 8; Page 35, line 24 through Page 36,

line 4; Page 36, line 16 through Page 37, line 9; Page 37, line 25 through Page 38,

line 8; Page 40, line 2 through line 24; Page 45, line 18 through line 25; Page 48,

line 22 through Page 51, line 6; Page 55, line 15 through line 22; and Glossary,

Page 4, is particularly important because it is highly sensitive and qualifies as a

trade secret that should never be revealed to the public. As for the remaining

Confidential Information, in camera treatment of that information should be

maintained for at least three years to avoid serious injury to Moosehead's overall

business and competitive position.

(SIGNATURE PAGE FOLLOWSJ

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Signed this

6122252.1

I declare under penalt 0

5~

Mr. lÍre and

President & CEO

Moosehead Breweries Limited

day of December, 2013.

OItv and correct.
PUBLIC

Exhibit "A"

6122252.1
7

8

9

10

11

12

13

14

15 - - CONFIDENTIAL --

16

17 DEPOSITION of ANREW OLAN, President and

6122621.

i

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF COLUMBIA

3

4 FEDERAL TRAE COMMISSION

5 Plaintiff,

6 Civil Action No.

vs. 1: 13 -cv- 01021-RMC

)

ARAGH GROUP S. A. and

COMPAGNIE DE SAINT-GOBAIN and

SAINT - GOBAIN CONTAINERS, INC.,

Defendants. )

18 CEO of Moosehead Breweries Limited, held at

19 the premises of Moosehead Breweries Limited,

20 89 Main Street in the City of Saint John,

21 County of St. John, Province of New

22 Brunswick, Canada, the Sixteenth day of

23 August AD 2013, before court reporter Kathry

24 Burke.

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APPEARANCES

MEREDITH ROBINSON, Esq., Attorney at Law

U.S. Federal Trade Commission, 600 Pennsylvania Avenue,

NW, Washington, DC 20580

Telephone: (202) 326-2881

Counsel for the Plaintiff

VEENA VISWANATHA, Esq., Cravath, Swaine & Moore LLP

Attorneys at Law, Worldwide Plaza, 825 Eighth Avenue

New York, New York 10019-7475

Telephone: (212) 474-1521

Facsimile: (212) 474-3700

Counsel for the Defendants Compagnie de Saint-Gobain and

Saint-Gobain Containers

2 4

(8:46 a.m.)

ON THIS Sixteenth day of August in the Year of Our

Lord Two Thousand Thirteen Did Personally Come and Appear

ANDREW OLAND, Who, having been duly swom, doth depose

and say as follows:

EXMINATION-IN-CHIEF BY MS. VISWANATHA:

Q. Good moming, Mr. Oland. My name is Veena

Viswanatha. I'm with the law firm Cravath, Swaine & Moore and I

represent Compagnie de Saint-Gobain and Saint-Gobain Containers

in this matter. Can you please state your full name for the

record?

A. Andrew Gwilym Oland, G-W-I-L-Y-M.

Q. Mr. Oland, have you ever been deposed before?

A. I do not believe so.

MS. ROBINSON: And, Veena, I don't want to interrupt,

but just for the record, I'll introduce myself, too. I'm

Meredith Robinson, representing the U.s. Federal Trade

Commission.

MS. VISWANATHA:

Q. Okay, Mr. Oland, I'll be asking you a series of

questions. If you don't understand a question, please say so

and I will try to clarify it; and if you don't say otherwise, I

wil assume you understood my question. When you respond to a

question, please use words rather than gestures so the court

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WINESS: ANDREW OLAND

Examination-in-Chief by Ms. Viswanatha 4

Cross-examination by Ms. Robinson 28

Redirect Examination by Ms. Viswanatha 54

Re-cross-examination by Ms. Robinson 60

Re-redirect Examination by Ms, Viswanatha 64

Re-re-cross-examination by Ms, Robinson 66

EXHIBITS

PX2412 E-mail from BobShanteau, Vera Ila, to 

Andrew Oland, Moosehead Breweries, dated

June 3, 2013, enclosing proposed draft

letter.

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PX4227 Letter from Andrew Oland, Moosehead

Breweries, to The Honorable Edith Ramirez,

Federal Trade Commission, dated June 11,

2013.

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reporter can --

A. Sure.

Q. -- transcribe your response. And if at any time

you would like to take a break, just let me know. As Ms.

Robinson said, she represents the Federal Trade Commission in

this proceeding. She may at times have objections to my

questions, but you should still answer the question. Does that

all make sense?

A. I'm not sure about the last point. Can you

elaborate?

Q. Sure. So Ms. Robinson may raise objections to my

questions and that is just to preserve the objection for

determining whether this evidence is admissible in a court

proceeding.

A. Okay.

Q. But you should still answer --

A. Sure.

Q. -- regardless of her objection.

A. May I ask a question?

Q. Of course.

A. Can someone explain to me the parameters around

confidential information of MOClsehead Breweries and what -- what

information would become, or potentially become, part of the

public record?

Q. SO we ask that the transcript from this

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PUBLIC DOCUMENT (REDACTED)

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proceeding be marked confidential, and so none of this, none of I brew beer for other companies, but do not sell it. And a third

the testimony you wil give today wil become part of the public I component of our business is we import or sell -- and sell, but

record. I do not brew, beers from other countries.

A. Okay. Thank you. i In terms of the beers that Moosehead produces and

Q. Mr. Oland, who is your current empi'oyer? I sells itself, what we call our organic portolio, we have an

A. Moosehead Breweries Limited. I extensive lineup of beers under the Moosehead portolio or brand

I

Q. And may I use the term "Moosehead" to refer to -- ! name, including Moosehead Lager, Moosehead Light, Moosehead Dry

i

A. Yes. ¡Ice, Moosehead Pale Ale. We also have brands under the Alpine

Q. -- Moosehead Breweries Limited? How long have I portolio, including Alpine, Alpine Light, Alpine 6.0. Under

you worked at Moosehead? I the James Ready portolio: James Ready, James Ready 5.5, James

A. Since 1993. I Ready Ale, James Ready Light.

Q. And what is your current title? I We have other brands, including a brand called Cracked

A. President and CEO. I canoe, Boundary Ale, Clancy's Amber Ale. We have a craft

Q. How long have you been president and CEO? , brewery operation which -- under the brand name or the brewery

A. I've been president for a little over five years I name of the Hop City Brewing Company, and the brand names

and assumed the CEO title in the last year. I include Barking Squirrel Lager, 8th Sin -- 8 as in the number --

Q. What are your responsibilties as president and 18th Sin Black Lager, Mr. Huff Pilsner, Big Mouth Pale Ale and

CEO? i Lawn Chair Classic Weisse. That's W-E-I-S-S-E, weisse; it's a

A. I have overall responsibility for all of i weisse beer.

Moosehead Breweries Limited and its subsidiary companies. I

Q. Are you involved in decisions regarding how I

Moosehead's beer should be packaged, whether it be in cans or I

kegs or bottles? III

A. Yes, I would playa role in that decision. .

Q. Are you involved in decisions regarding which

71

packaging suppliers to use? , t

A. Yes, I would playa role in those decisions. 11.1

Q. What positions have you held at Moosehead before

becoming president and CEO? I Q. SO, with regards to the three categories you've

i A. Would you like my complete æreer bio? I identified -- the organic beers, the beers that you brew but

Q. You æn just list the titles that you've held. i don't sell, and the beers that you import and sell -- for which

A. Sure, okay. So I strted my æreer as a foreman I of those categories does Moosehead participate in decisions of

in our bottle shop; I also spent time in brewing; then after what packaging to put the beer in?

going back to school and completing an MBA, I assumed a series A. That would be the organic as well as the

of positions in both the sales and marketing side of our i contract.

business; and then prior to becoming president, I was -- the I Q. With regards to the contract beer, do you package

title was President of Moosehead Quebec, so I was responsible I that beer in bottles or in æns or in kegs?

for our operations in the province of Quebec. .1 A. That beer is currently packaged in kegs and in

Q. And that was the position you held before bottles, and, in the past, we have done a small amount in æns, A. Yes. i becoming -- but it's predominantly bottles and kegs.

Q. -- president and CEO. ,i

Q. Yeah.

Q. What does Moosehead do? ,

A. Moosehead brews and packages and distributes i

beer. Moosehead brews and sells beer.

Q. What beer does Moosehead brew and sell?

A. We have an extensive portolio of what we æll i

our organic beers, so those are beers which we produce and selL. I Q. And how do you playa role -- how does Moosehead

As well, we -- which I'll go into in a second -- as well, we I playa role in determining whether to package that beer in kegs

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I shape, weight, as the industry standard bottle -- we use both

! the 355 and the 473 ml can, and then we use 20 litre and 50

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! litre kegs.

i Q. Is e¡ich of your beers packaged in each of those

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supplier and we make what they ask us to make. I containers that you identified?

Q. SO, is it fair to say that Moosehead only is I A. Not necessarily, no.

involved in decisions about what packaging to use for the beer í Q. Are each of the beers packaged in bottles?

with regards to the organic beers, the beers that -- I A. Yes, all of our beers would be packaged in

A. I think that's -- I bottles.

Q. -- Moosehead brews itslf? I Q. Are each of those beers packaged in cans?

A. Yes, that's a fair assumption, Yes. "A. I'm sorry, I need to take a step back. There are

Q. Where is Moosehead located? three of our -- of our Hop Cit craft beers which are only

A. Saint John, New Brunswick, Canada. I packaged in kegs; the rest are packaged in bottles and the rest

Q. Does Moosehead sell its beer in Canada? i would all be packaged in either -- in one or both formats of A. Yes. I cans, the 355 or 473. A. Yes. I Q. Does it also export its beer to the United I ~ States? I

Q. Which beers does it export to the United States? I

A. Moosehead Lager, Moosehead Light, Moosehead Light I

í

Lime and Barking Squirrel Lager. I Q. When did Moosehead start packaging its beer in

i

Q. And where in the United States do you export i cans? If you know.

those beers to? I A. I don't know the year. It would have been sort

A, Our organic portolio goes to all 50 U,S. sttes. ¡ of many years ago -- 60 or 70 years ago.

Q. Have you heard the term "craft brewer"? ! Q. You mentioned a brand called Cracked Canoe. Is

11 I

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I that brand more expensive than other Moosehead brands?

! A. Yes, it is.

I Q. Is it more of a premium beer than some of the

¡other Moosehead brands?

,

! A. Yes. Would you like me to go through our

! portolio from the premium perspective, sort of from a pricing

I perspective? Would that be helpful or not?

! Q. Let's stick with Cracked Canoe.

I A. Sure, okay. So Cracked Canoe is -- so, if Alpine i or Moose Lager (sic) were priced at what we call the mainstream

pricing, Moosehead Lager would be higher than that, and slightly

higher than Moosehead Lager would be Cracked Canoe.

Q. And is Cracked Canoe packaged in cans?

A. Yes, and bottes.

Q. Do you consider Cracked Canoe to have a kind of

premium image?

A. Yes.

Q. And that image of Cracked Canoe doesn't change

whether you package it in a bottle or in a can?

MS. ROBINSON: Objecton to fomi.

THE WITESS: No, the bottle would -- would -- would

have a higher image, because the bottle of Cracked Canoe is

packaged -- it's a green bottle.

MS. VISWANATHA:

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or bottles or cans?

A, For our contract parters?

Q. Yes,

A. We do not. We are simply the -- we are the

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A. Yes.

Q. What do you understand "craft brewer" to mean?

A. Just give me a second here. Craft brewers are

brewers who brew a variety of stles of beer with a taste

profile which is stronger than mainstream brewers' -- than

mainstream beers.

Q. Would you consider Moosehead to be a craft

brewer?

A. No. No, we have elements of -- no. No, I would

not.

Q. Would you consider any of the beers that

Moosehead brews to be craft beers?

A, Definitely.

Q. What beers would you consider to be?

A. Barking -- the entire Hop City portolio -- do

you want me to list those again?

Q. No.

A, The entire Hop City portolio, as well as

Boundary Ale.

Q. What packaging does Moosehead use for the beers

it sells both in Canada and the U.S.?

A. We use, in Canada, the 341 ml industry stndard

bottle -- we use the brown version, which is the industry

stndard bottle; as well, we have a green version which is

exclusive to Moosehead but has the same characteristics, size, Q. And in your understnding, do your consumers view

4 (Pages 10 to 13)
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1 Cracked Canoe differently if it's packaged in a bottle or if

2 it's packaged in a can?

3 MS. ROBINSON: Objection to form.

4 THE WITNESS: I would say they view it the same.

5 MS. VISWANATHA:

6 Q. Is it fair to say that Cracked Canoe stil has a

7 premium image when it is packaged in a can?

8 A. Yes.

9 Q. In your undersanding, does Moosehead beer taste

10 the same whether it's in a bottle or in a can?

11 A. Yes, it does.

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i Q. Is it the beer brewers that are promoting cans,

I in your understanding? ¡ A. The brewers, but also retailers, ultimately led i

I by the consumers. cans have a much stronger penetration level 191 21 L I in the United States than they do in Canada, and Canadian

I consumers are attracted to things which are American.

I Cans have a number of product benefits to glass in

! that they are lighter and they're more appropriate in a number

Ii of outdoor recreational-type environments, such as boating or i golf or something along those lines. They also take up less

¡ space in the fridge,

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i MiJerCoors in the United States, all the craft breweries, but

2 we also compete against the wine and spirits industry, and you

3 could make an argument that we compete against coffee shops and

4 other places that individuals gather to have social events, 5 social interactions.

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8 MS. VISWANATHA:

But in terms of the beer business, iaCanada our

principal competitors would be Anheuser-Busch InBev/Labatt,

Canadian division, Molson Coors, Sleeman, and then the rest of

Q. You mentioned that Moosehead competes against

Labatt in Canada. Is Labatt the name of the brand or the --

A. It's Labatt Breweries of Canada, which is a

division of Anheuser-Busch InBev. Anheuser-Busch InBev, that's

the largest brewer in the world. Labatt Blue and Labatt Lite

would be their brands, some of their brands, but relatively

small. Their biggest brands would be Budweiser and Bud Light.

Q. When a store has a Moosehead beer in a can and,

for example, a Labatt beer in a bottle, does the Moosehead in a

23 25

can compete against the Labatt that's in a bottle?

A. Definitely.

Q. Is Labatt offered in cans?

A. Yes.

Q. When a store has Labatt in a can and Moosehead in

a bottle, is it fair to say that the Labatt in a can competes

against the Moosehead in a bottle?

A. Yes, it is.

Q. Is it fair to say that, as a general matter, your

beer -- Moosehead's beer in cans and Labatt's beer in bottles

I compete against one another regardless of the venue in which the

I beer is consumed; for instance --

I A. Oh, yes.

I Q. -- if your customer is --

I MS. ROBINSON: Objection.

;

. THE WITESS: Yes.

MS. VISWANATHA:

Q. -- if your customer is buying a beer to --

A. Yes.

Q. -- to take home for dinner?

MS. ROBINSON: Object to the form.

THE WITNESS: Yeah.

MS. VISWANATHA:

Q. Are you aware that Ardagh Group has entered into

an agreement to purchase Saint-Gobain Containers, otherwise

9 Q. Is it part of your role to understand and analyze

10 your customers' buying habits with respect to Moosehead beer?

11 A. I would play an oversight in that and wouid

12 certinly be aware of the information or the research results,

13 but it's not part of my role to organize or participate in the

14 research.

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Q. In your undersnding, what is the quality of

Moosehead's beers?

A. Exceptional quality.

Q. And does Moosehead attact customers through that

exceptional quality?

A. Yes, it does.

Q. Does Moosehead also attact customers by pricing

its beers competitively?

A. Of course.

MS. ROBINSON: Objection to form.

THE WITNESS: Yes, of course.

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MS. VISWANATHA:

Q, When making a decision as to whether to buy

Moosehead beer as opposed to another kind of beer, in your

understnding, do your customers look to the quality and the

price of the beer?

MS. ROBINSON: Objection to form and foundation.

THE WINESS: Yes.

MS, VISWANATHA:

Q. Would you say that your customers care more about

the quality and the price of the beer than they do the type of

container it's sold in?

MS. ROBINSON: Objection to form and foundation.

THE WINESS: It depends on the -- it depends on the

buying circumstances.

MS. VISWANATHA:

Q, In general, would you say that your customers

care more about the quality of the beer than the type of

container it's sold in?

MS. ROBINSON: Objection to form and foundation.

THE WITNESS: Yes, I would, yes.

MS. VISWANATHA:

Q, Who are Mooseheads main competitors?

A. Well, anyone who is -- we compete for share of

stomachs, so it's not just everyone who's sellng beer, whether

it's Anheuser-Busch InBev, or Molson Coors in Canada, Miler --

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261 28 PUBLIC DOCUMENT (REDACTED)

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known as Veralla North America, which is what we've been I verbal or not.

referring to it as? i Q. Do you know the substance of the interaction A. Yes. I between Patrick and -- i

Q. Do you anticipate that Moosehead might experience I A. No, I do not.

any benefits as a result of the sale if it goes through? i Q. -- the FTC? Do you know if the FTC asked you to

A. Yes, I do. i provide a declaration, asked Moosehead to provide a declaration?

Q. What benefits are those? ¡ A. I believe they did. I'm sorry, I'm not sure what

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MS. ROBINSON: Objection to the form and foundation. I you mean by a "declaration".

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THE WITNESS: I think there are -- hopefully, it wil i Q. To provide a written affdavit regarding the

be an opportunity for Verallia to continue to make capital I transaction.

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investment decisions which wil lead to higher quality and also ¡ A. I wrote a letter. I'm sorry, I don't know what

a lower cost for its customers. Verallia, my understnding, I my brother provided to the FTC, if he provided anything to the

their largest customer is Anheuser-Busch InBev, who are now the I FTC.

world's largest brewer, and they need to somehow become part of I MS. VISWANATHA: I have no further questions at this

a -- Verallia North America needs to become part of a global I time, but I may have questions after counsel for FTC.

operation if they are going to continue to meet the needs of i MS. ROBINSON: I might have questions. Can we take a

Anheuser-Busch InBev. I 10- or IS-minute break off the record?

MS. VISWANATHA: 1--- Recess taken 9:48 a.m.

Q. In your understnding, is it importnt for i --- Upon resuming at 9:55 a.m.:

Moosehead to have well-capitalized, strong glass suppliers? i

MS. ROBINSON: Objection to form. I CROSS-EXMINATION BY MS. ROBINSON:

THE WITNESS: Very much so. The challenge -- I'm not Q. Good morning, Mr. Oland.

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sure if you've been in a glass-making facility, but its similar I A. Good morning.

to the bottling lines that we run; the only difference is you I Q. How does Moosehead get its brands to market?

have a furnace at the front end of the process which you can't I A. That would depend on the jurisdiction where those 27 I 29 I

turn off, so you have to keep running this operation, so you I brands are being sold. Each province in canada is slightly

have to have customers and product to selL. Our biggest quality I different, but generally, if I was to generalize, in Canada we

risk would be some type of glass defect, and the stronger, the i deal with a provincial liquor board and they would be the

better capitalized our glass suppliers are, we believe, the I retailer and, in some cases, also handle the distribution; in

likelihood of a significant glass defect is reduced. I other cases, we would handle the distribution.

Q. Is it fair to say that it's more important for I In the United States there is a three-tier

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Moosehead to have well-capitalized, strong glass suppliers than I distribution system, so we sell our beer -- we're mandated to

it is to have a number of suppliers each of whom are less well II sell our beer to a distributor, who then sells it to bars,

capitalized? resturants and retailers within the geographic area of their

MS. ROBINSON: Object to form and foundation. . distribution rights, And our international beer we sell to

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THE WITESS: Yes, definitely. We have to have i importing agencies or entities in those specific countries.

suppliers that we have complete trust in, particularly for i Q. Going forward, most of my questions are going to

something which is so important to the overall quality and I relate to what I believe you referred to as the Moosehead

safety of our product, such as glass. ¡ organic brands. MS. VISWANATHA: I A. Sure,

Q. Prior to today, have you spoken to anyone at the i Q. If I'm referring to something else, I'll let you

Federal Trade Commission about the proposed sale of Vera Ila I know.

North America to Ardagh Group? I A. Certinly,

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A. I don't believe so, no. I Q. Focusing on the U.s, three-tier system, does

Q. To your knowledge, has anyone at Moosehead spoken ! Moosehead use multiple distibutors?

to anyone at the Federal Trade Commission about this proposed I A. Yes, we have approximately 400 individual

sale? I distributors, each of which has a geographic exclusivity for the

A. I believe there was an interaction between my I Moosehead portolio.

brother Patrick, who is our chief financial offcer, and the ¡ Q, Does Moosehead have contract -- does Moosehead

Federal Trade Commission. I don't know if that interaction was i have contract with all these distributors?

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! Q. In an order, would a distributor specify how many i bottles versus cans they want?

¡ A. Definitely.

I Q. Does Moosehead have the ability to say, No,

i actually, I'm going to sell you more cans than you requested?

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state laws. In almost all cases, it is next to impossible for i A. No. Well, we have the abilit to say that, we

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us to remove our beers from a distibutor regardless of how they ¡ don't have the ability to . . . No, we do not.

¡ are performing. ! Q. Okay. I believe you testified earlier that

Q. How do you set prices to distributors? I

A. We base our selling price on trying to achieve I f

key price points in the market, so we know what the distributor

markup is and then we know the price point we're trying to hit, i

as well as, obviously, achieve an acceptable level of I profitabilty. i¡

Q. And does Moosehead have any control over the I A. No. I prices the distributors sell the product to retailers? i

Q. Are there times when you give distributors I discounts? ì

A. Yes. We would share promotional activity. Yes. I

Q. What do you mean by "share promotional activity"? I

A. So, if we're in a situation where we have jointly I

agreed to reduce -- we call it a limited-time price offer -- I

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then that reduction would be shared by some type of relationship i

with the distributor. I

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A. We would have contract with them, but in the

United States there are very stringent state laws which protect

the rights of the distributing companies, so they would not be

conventional contract that you might have in other business

relationships or other product because of the strength of the

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Q. And in those situations, does the distributor

then give a discount to the retailer?

A. Yes.

Q. How often do these promotional activities take

place?

A. Anywhere from three to six times a year. They

tend to be month-long promotions.

Q. Do you enter into a contract with the distributor

or retailer regarding these promotions?

A. Can you define "contract"?

Q. Sure. Is there a formal agreement?

A. No.

Q. SO, is the distributor obligated to pass on the

discount to the retailer?

A. No.

Q. And if a retailer does receive a discount from

the distributor, is the retailer obligated to pass that on?

A. They're not, no.

Q. Is it fair to say that Moosehead doesn't have any

control over the prices that retailers sell Moosehead brands at? A. Definitely. I

Q. And can you take me through the process? The

distributor has placed orders with Moosehead and then Moosehead . Q. Are the industry standard bottles the only types

fills whatever the orders are? I of bottles sold in the beer marketplace in canada?

A. Correct. i A. No, they are not. So the industry standard

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I

bottle is an agreement between the top four brewers in Canada -- II ~

so Labatt, Molson, Sleeman and Moosehead -- as well as a number

of other signatories, and those signatories have agreed that any II

bottle production in Canada below 500 milllitre or 600

I millilitre -- I don't know the exact number -- wil be in the i Q. For the bottles that you use to sell into the

brown industry standard bottle. I U.s., is it the standard long neck non-returnable?

And there are two exceptions to that rule: Moosehead I A. Yes, they are one-way glass.

has the right to produce Moosehead-branded beers in a green I Q. And do you use all 12 ounce bottles for the sales

version of the industry standard bottle; and Sleeman has the ; in the U.s.?

right to produce Sleeman-branded beers in a -- they have a ciear I A. We also use some 22 ounce bottles. Sorry. For

bottle that they use, which again is a refillable bottle. I organic?

Q. That kind of dovetails into my next question. ! Q. Yes, sorry, this is organic.

,

Explain exactly what an industry standard bottle is. I A. For organic, we only use a 12 ounce bottle.

A. An industry standard bottle is a bottle which is i Q. Okay. Are cans cheaper than the bottles that are

cleaned and then refilled multiple times as opposed to one-way 1-- you use to sell into the U.S.?

glass, which is discarded after use and is crushed and then I ~

would be presumably used as cullet to make more bottles, whereas I

the industry standard bottle is a refillable bottle and, on I

average, is used between 12 and 20 times before it is discarded. ,

Q. How does that work? Do consumers actually return ¡ the bottles? i

A. They do, yes. In Canada, which is -- it's -- if .1

you think from an environmental perspective, there are very few

product that you actually re -- the container's refilled. So, I

in Canada, consumers, when they've finished their beer, they put

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351 37 1

it in -- usually in the case in the garage or in the basement, I ~

and then a couple of times a year they go to a redemption centre I

and they receive money for those bottles. That's part of ¡ Canadian culture. I

Q. It's very disciplined. Impressive. I A. Yeah, it is, yeah. I

Q. And how do those bottles compare to stndard I

bottles you see in the United States? ¡

A. They're essentially the same. There would be two I

big differences. The firs is they are a slightly heavier MS. ROBINSON:

bottle, so they use a litle bit more glass because of the í Q. Why do you have to promote more with cans?

multiple uses. The second difference would be, once the bottle I A. Because of the -- because the -- that's the

has been used multiple times, it does develop small rings around I demands of the market.

the outside of the bottle where the bottles have rubbed against I Q. What do you mean by "demands of the market"?

each other during the packaging process, so it's quite ! A. It would be demands of both retailers and,

straightforward to notice, from a consumer perspective, an I ultimately, consumers; they're expecting a lower price per unit

industry standard bottle that is brand new versus multiple uses. I on cans.

i

Q. How does the price of an indust standard bottle ! Q. Do you have an undersanding as to why that is?

compare to the price of the standard long neck non-returnable I A. I think, for imported beers such as Moosehead,

bottles used in the United States? I cans that are sold in the United States are sold more in summer

A. It would be higher just because of the increased i and more associated with sort of -- we'll call it recreation,

weight, as well as the fact that there's only one producer in I seasonal activities. But I think the biggest answer is just

Canada that's certified to make the industry standard bottle. I there's an expectation from U.S. retailers that imported cans

~ are going to be cheaper on a per-unit basis than bottles.

f l

10 (Pages 34 to 37)
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PUBLIC DOCUMENT (REDACTED)

40

A. Next to nothing.

t

Q. All right. When was the first time you spoke

39 41

l

with anyone from Ardagh or Saint-Gobain about the proposed

merger?

MS. VISWANATHA: Objection to fonn and foundation.

THE WITESS: I do not know the date, but it would

have been within three -- 24 to 48 hours of the proposed merger

being announced. I was called by my principal contact with

Verallia.

MS. ROBINSON:

Q. Who is your principal contact with Vera Ila?

A. I'm having a mind blank. Sorry. Can I get --

can I go check in my offce or can I --

Q. At the next break, if you want to --

A. Yeah, yeah, I wil --

Q. -- check, that's fine. That's--

A. Okay, I just -- yeah.

Q. But someone from Verallia did contact you.

A. Yes. Yes.

Q. Do you remember what the person from Veralla

said during that firs conversation?

A. Yes. They said that this was good for Vera Ila's

North American operation and it would allow Vera Ila to grow

stronger, and they assured me that the Milford, Massachusett,

facility was part of this new entity's future.

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A, Resistance from the market.

Q. By "resistance from the market," what do you mean

by that?

A. A lack of promotional activity opportunities at

retail, which could include superior shelf space, display

activity, opportunity to run promotions.

l

Q. Are you aware that Ardagh is a European company?

A, Yes.

Q. Has Moosehead ever purchased any products from

Ardagh?

A. Not that I'm aware of.

Q. Do you have any personal knowledge of Ardagh's

business operations? l

11 (Pages 38 to 41)
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Q. Is it Bob Shanteau?

A. Yes, Bob Shanteau. Thank you, Don't tell him I

said that.

Q. Don't worry, I won't. Have you ever talked to

any attorneys representing Saint-Gobain about this merger?

A, Yes.

Q. And who did you speak to?

A. Pierre Ges -- Ges , . . I'll check my notes.

Q. That's okay. Was Pierre with the law firm of

Cravath?

A. Yes,

Q, What did you discuss with Pierre?

A. Whether I would be interested in going through

this deposition or not.

Q, Clearly, you were very interested.

42

PUBLIC DOCUMENT (REDACTED\

44

1

e-mailed to me and asked me to review, put on corporate

letterhead and then mail accordingly.

(Discussion held off the record.)

(Exhibit No. PX4227 marked.)

Q. You've been handed what has been marked as

PX4227. Take a moment to review that and let me know when

you're done.

A. Okay.

Q. What is this document?

A. This is a letter that I sent to the chairwoman

of the Federal Trade Commission on June 11th, 2013, signed by

myself.

Q. All right. And if you could also keep PX2412,

the draft letter that Mr. Shanteau sent you or provided you.

A. Yes.

Q. Comparing the body of these two letters, do you

see that in the draft Mr. Shanteau sent that twice the term

"customer name" appears in brackets?

A. Yes.

Q. And do you see that in the letter you sent to the

FTC that "customer name" has been replaced with "Moosehead

Breweries Limited"?

A. Yes.

Q. Other than that one difference, is the body of

these two letters identical?

43 45

A. Correct.

Q. In looking at the letter that you sent, do you

see the sentence that reads:

As a combined entity, Ardagh should be able to

offer better prices and better service, including

by minimizing shipping distances through an

expanded footprint, and as a result will be able

to more effectively compete against packaging

alternatives such as plastic or metal.

A. Yes.

Q. What is the basis for the statement that you made

that the combined entity should be able to offer better prices

and better service?

A. The glass business is a highly capital-intensive

business with very large customers. Moosehead would not be one

of those customers. And so it is my belief that a stronger

Verallia would be good, ultimately, for Moosehead.

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A. Well, I'm not sure I would use the words "very

interested" .

Q. Did you discuss anything else with Pierre?

A. Yes. Pierre asked me why I was in support of the

Ardagh-Verallia merger.

Q. Taking a step back, did anyone from Vera Ilia ask

you if you would send a letter to the Federal Trade Commission

expressing Mooseheads support for the merger?

A. Yes, they did.

Q. And did you send such a letter?

A. Yes, I did.

Q. Were you provided a draft letter from Veralla?

A. Yes, I was.

Q. And did you use the draft letter?

A. I used it as the basis of my letter.

(Discussion held off the record.)

(Exhibit No. PX2412 marked.)

Q. Mr. Oland, you've been handed what has been

marked as PX2412. Take a minute to review this and let me know

when you're done.

A. Yes.

Q. And do you recognize this document?

A. Yes, I do.

Q. What is it?

A. It's the draft of the letter that Bob Shanteau

12 (Pages 42 to 45)
PUBLIC DOCUMENT (REDACTED)

46 48

1

f consistent basis.

2 Q. Did you solicit bids from any Chinese suppliers?

3 A- Na. No. .

4 Q. Why not?

5 A. The same reason. And for both the Chinese as

6 well as we did contemplate a bid from a Costa Rican -- we did

7 contemplate pursuing a bid from a Costa Rican company. The

8 logistics cost, the shipping cost just -- we didn't feel would

9 have been competitive.

10 Q. What company was that, the Cost Rican plant?

11 A. I'm sorry, I can't. . .

12 Q. Was that through a distributor, do you know?

13 A. No. No, it was. . .

14 Q. When you solicited bids for what ended up being

15 the 2012 contract, did you put out a formal request for a quote?

16 A. Yes, we did.

17 Q. And you issued that to both 0-1 and Veralla?

18 A. Yes.

19 Q. Did that request for a quote also include a

20 request for a quote on cans?

21 A. No.

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MS. VISWANATHA: Objection to form.

THE WITNESS: My understanding is Ardagh does not have

a -- are you talking about European Ardagh?

MS. ROBINSON: Ardagh as the current parent company of

Anchor.

A, Of Anchor? I can't speak to that. I don't know

what their capacity situation is where they are.

1 1

13 (Pages 46 to 49)
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PUBLIC DOCUMENT (REDACTED)

52

,iIIIiiI

i Q. You testified earlier that you spoke to Pierre,

I an attorney at Cravath, and that he asked you if you would be

I willng to sit for this deposition, and I believe you also said

i he also asked you why Moosehead was in favour of the merger. Do

I you remember anything else about your conversation with Pierre? i

! A. I asked him a number of questions about this

ií process, what we were going to be going through, obviously, and

511

I we spent time on dates and things of that nature. There was a sense of urgency on Pierre's part, so . . . He also -- and the

I reason for my ignorance here is my brother Patrick, who is our

I CFO, and I are sort of passing each other in the night in terms

¡ of vacation schedules and things of that nature. He also asked

I -- I think he spoke to a letter which I believe the FTC sent to

I my brother Patrick, or some sort of communication which went to i

! my brother Patrick, and I was not aware of that.

I Q. Did Pierre discuss anything with you about the

potential substnce of this deposition?

I A. Other than the time limit -- the time length that

i I should be prepared for, no. No, I don't think -- no, just -- j

I no.

I Q. Did you have any other conversations with any

I attorneys representing Saint-Gobain or Ardagh about this

I deposition?

i A. No. I would have put someone in my offce in i contact with someone at Cravath's; who to ask for when you get

I to the lobby and if you need travel assistnce and things like

I that. Nothing beyond that. ,

I MS. ROBINSON: All right. I may be done with my

I questons, but I need to maybe take a five-minute break to make I

I sure.

I THE WITNESS: Sure. Super.

L 1--- Recess taken at 10:41 a.m.

l

53

14 (Pages 50 to 53)
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--- Upon resuming at 11:04 a.m.:

REDIRECT EXMINATION BY MS. VISWANATHA:

Q. Mr. Oland, can you take a look again at PX4227?

A. Yes.

Q. Yes, it's right in front of you. As you sit here

today, do you agree with everyhing that is stted in this

letter?

A. Yes, I do.

Q. You testified earlier that it would be diffcult

for Moosehead to raise prices to consumers in the United States

because Moosehead is not a market leader.

A. Correct.

Q. In your understnding, who are the market leaders

in the United States?

A. Anheuser-Busch InBev would be the market leader

and then in the importer the brands Corona and Heineken would be

market leaders. As well -- yes, Corona and Heineken.

Q. SO, if Anheuser-Busch raised the price on its

beers in the United States, would Moosehead be able to raise the

prices on beers it sells in the United States?

MS. ROBINSON: Objection to fonn and foundation.

THE WITESS: It would make it far easier.

MS. VISWANATHA:

Q. You testified earlier that in the United States

J

54

PUBLIC DOCUMENT (REDACTED\

56

activities?

MS. ROBINSON: Objection to form.

THE WITNESS: Oh, definitely. I mean, more beer is

sold in cans in the United States than in bottles. Cans are the

preferred -- preferred package to glass or to PET, to plastic,

and as I said earlier, cans are easier to store, they take up

less space in the fridge, they're lighter. And what we're also

starting to see in craft beer is craft beer producers moving

directly into cans as opposed to bottles, so they go from draft

into cans, because the fillng equipment for small can lines is

far cheaper than it would be for bottle lines.

MS. VISWANATHA:

Q. Does Moosehead sell any craft beers in the United

States?

A. Yes, we do.

Q. Are you aware of any trends in the United States

with respect to packaging for craft beer?

A. Craft beer overall continues to grow and craft

beer in cans is growing at a higher rate than in bottles, but

still the predominant SKU for craft beer would be in bottles.

Q. Do you expect that with the cans that Moosehead

-- the craft beers that Moosehead sells in the United States, do

you expect the volume of cans to grow in line with the industry

trend for increasing craft beer in cans that you just

identified?

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distributors tell you how many bottles and cans they would like.

A. Correct.

Q. Is the same true in Canada?

A. Yes.

Q. And in Canada, in recent years, have beer brewers

taken steps to promote cans and increase consumer demand for

cans?

A. Yes.

MS. ROBINSON: Objection to fomi and foundation.

MS. VISWANATHA:

Q. And has that affected consumer demand for cans?

A. Yes, it has.

MS. ROBINSON: Objection to fomi and foundation.

MS. VISWANATHA:

f

Q. In your understanding, are cans -- strike that.

In your undersnding, do consumers in the United States

purchase beer in cans for activities other than recreational

55 57

MS. ROBINSON: Objection to form.

THE WITNESS: No, I don't, because I think a lot of

the industry trend is coming from small brewers who are

packaging only in cans versus bottles because of the cheaper upfront as well as individual unit price of cans versus bottles.

MS. VISWANATHA:

f

MS. VISWANATHA:

Q. You testified that in 2012 you did not look at

any Mexican suppliers; is that correct?

A. (No audible response.)

Q. When was the last time you looked at any Mexican

suppliers?

A. Well, I didn't testify that we didn't look at any

Mexican suppliers. We didn't solicit formal quotes from Mexican

15 (Pages 54 to 57)
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PUBLIC DOCUMENT (REDACTED\ 58 i 60 i

suppliers or any other suppliers outside of North America, i Q. Have you seen that RFP?

because we had quality concems with those suppliers. Potential ¡ A. No.

i

quality concems. I Q. Would you be surprised to learn that there was no

Q. What were the quality concerns based on? I formal RFP?

!

A. Our perception, whether it's incorrect or not, ! A. Yes.

that we would be at risk to some type of catastrophic incident I f

from a supplier outside of North America. i

Q. What is that perception based on? I1

A. Our experiences visiting other markets. That

would be the perception. I

Q. What other markets? I'

A. Other markets in Central and South America. I

Q. When did you visit those markets? I MS. VISWANATHA: If we could go off the record.

A. Those markets we visited from time to time over i --- Recess taken 11:16 a.m.

the last 10 years on almost an annual basis. I --- Upon resuming at 11:25 a.m.:

Q. Would the transporttion cost of shipping glass !

from Mexico to your breweries also be a concern? I RE-CROSS-EXMINATION BY MS. ROBINSON:

A. Definitely. ! Q. Mr. Oland, I believe you testified earlier that

Q. You also testified that you didn't submit -- or, I there are four major canadian brewers; is that right?

solicit bids from Chinese suppliers in 2012. A. (No audible response.)

A. 'Correct. That again would be due to ! Q. Who are those brewers again?

transportation as well as just -- and this would be more -- I A. Labatts, which is a division of Anheuser-Busch

well, my decision, but just there's been a lot of issues with i InBev, Molson Coors, Sleeman, which is a division of Sapporo

I

food-related product coming out of China. We all know about I from Japan, and Moosehead. And Labatt and Molson would be each

baby powder and things -- baby milk -- milk powder, I guess it i ten times the size of Sleeman and Moosehead. 59 I 61 I

would be. And this is -- glass and quality of glass is integral i Q, Does Labatt currently sell beer in glass bottles

,

to our product offering and our quality. ¡ in Canada?

Q. Has Moosehead evaluated glass -- specifically I A. Yes.

glass suppliers from China? I Q. How about Molson?

A. No, we have not. I A. Yes.

Q. Has Moosehead done any consumer studies in the I Q, And Sleeman?

United States with regards to the green bottle? i A. Yes.

A. Yes, we have. I Q. Do you know why they sell glass bottles in

Q. What studies are those? I Canada?

A. Those would be our market research activities i A. Because the consumer's prepared to buy beer in

that we have done over the last 30 years, typically using a ¡ glass bottles in Canada.

third part market research company, whether they would be focus ¡ Q, Have you ever been involved in the packaging mix

groups, consumer interviews, those type of sort of standard I decisions for Labatt?

consumer packaged goods marketing research activities. I A. No.

Q. Have you seen those studies? . Q. How about for Molson? A. Yes, I have. I A. No.

Q. Do those studies also evaluate consumer demand I Q. How about for Sleeman?

for cans in the United States, for Moosehead's beer in cans in I A, No.

the United States? i Q. Do you know what Labatt's projected glass bottle

A. That would not be the principal purpose of the I demand is going forward?

studies. From time to time, a study might produce insight, but I A. No.

that would not have been the principal purpose of the study. I MS, VISWANATHA: Objection. Foundation.

Q. You testified earlier that Moosehead put out a I' MS, ROBINSON:

formal RFP in 2012. i Q. Do you know that for Molson? A. Yes. ¡ A. No.

16 (Pages 58 to 61)
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Q. How about for Sleeman?

A. No.

Q. A few moments ago, I believe that you said that

cans are the preferred packaging type in the U.S. over glass and

PET. Was the basis for that statement the fact that cans

outsell glass and PET in the United States?

A. Yes.

Q. Have you seen consumer studies in the U.S.

regarding consumer preference for cans versus glass bottles?

A. No, I have not.

Q. In your undersnding, does consumer preference

for bottle versus can depend in part on the situation in which

the consumer's drinking?

A. Definitely.

Q. What do you mean by that?

A. For example, you see far more bottles on-premise,

which would be bars and restaurants and nightclubs, than you do

cans. As I spoke to, recreational environments, airplanes, et

cetera, would have a preference for cans.

Q. Based on your experience in the beer industry,

why is it that you see far more bottles on-premise?

A. I think many consumers associate bottles as a --

as more premium than cans.

62

PUBLIC DOCUMENT (REDACTED\

64

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f

reason for this is that canning lines are cheaper than bottling

lines; is that right?

A. Correct.

Q. Do you think the fact that small craft brewers

are entering with cans necessarily reflect any sort of change

in consumer demand in the craft segment for bottles versus cans?

A. I think there's a far greater acceptance amongst

craft consumers for cans. The craft brewers have done a good

job of conveying some of the attributes or product benefits that

a can has over a bottle and they're quite vocal in communicating

those.

Q. And do you know what percentage of the craft

segment is in bottles versus cans?

A. I do not know, but I would say SO-plus per cent

of the craft segment would be in bottles, would be my estimate.

Q. SO, is it fair to say that the predominant

packaging type in the craft segment is glass bottles?

MS. VISWANATHA: Objecton to form.

THE WITNESS: Yes.

MS. ROBINSON: I do not have any further questons.

MS. VISWANATHA: We can go off the record. Just one

minute.

--- Recess taken 11:32 a.m.

--- Upon resuming at 11:35 a.m.:

l

63 65

Q. Okay. Would you say that the green bottle in the

U.S. is part of Moosehead's brand image?

A. Definitely.

f

MS. ROBINSON:

Q. And you testified earlier that some of the small

craft brewers in the U.S. are entering with canning lines,

correct?

A. (No audible response.)

Q. And I believe you testified that you believe the

RE-REDIREcr EXMINATION BY MS. VISWANATHA:

f

Q. You testified earlier that Moosehead's volume --

the volume of beer that Moosehead sells in cans has increased in

past years.

MS. ROBINSON: Objection to form.

THE WIESS: Yes.

MS. VISWANATHA:

Q. And Moosehead expect it to increase in the

future.

A. Correct.

MS. ROBINSON: Objection to form.

f

MS. VISWANATHA:

Q. You mentioned earlier that in the United States a

17 (Pages 62 to 65)
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PUBLIC DOCUMENT (REDACTED)

68

lot of smaller craft brewers are packaging in cans.

A, A number. I wouldn't say a lot, but a number of

-- yes.

Q. A number of craft brewers.

A. Yes.

Q, The cans that those craft brewers use don't

convey a low quality image, do they?

MS. ROBINSON: Objection to form and foundation.

THE WITNESS: The craft brewers have done a very good

job of elevating the image of craft beer in cans.

MS. VISWANATHA:

Q, Is it fair to say that some of those craft

brewers that sell in cans have a high quality image?

A, Yes, it is.

MS, VISWANATHA: I have no further questions.

MS, ROBINSON: I actually have one or two additional

questions. We can stay on the record,

IN THE UNITD STATES DISTCT COURT

FOR THE DISTICT OF COLUMBIA

¡ FEDERAL TRDE COMMISSION ¡ Plaintiff, )

I ) Civil Action No.

i vs. ) 1: 13-cv-01021-RMC I ) ! ARDAGH GROUP S.A. and )

i COMPAGNIE DE SAINT-GOBAIN and )

I SAINT-GOBAIN CONTAINERS, INC., ) I Defendants. )

I

i

I I, Kathryn A. Burke, do hereby certify:

i THAT I am a court reporter and commissioner of oaths I duly appointed by the Departent of Justice in and for the

! Province of New Brunswick under the Recording of Evidence by

i Sound Recording Machine Act;

I THAT Andrew Oland, the witness whose examination is

I hereinbefore set forth, was duly sworn and that the within

I transcript is a true record of the testimony given by such

I witness;

RE-RE-CROSS-EXMINATION BY MS. ROBINSON: I AND THAT I have no personal interest in this action or

i

Q. Mr. Oland, you testified earlier that Moosehead I' any part thereto.

sales into the U.s. -- with respect to Moosehead sales into the I. at the City of Fredericton, County of York, " . IN WITESS WHEREOF I have signed

U.S. that you expect the mix of glass bottles versus cans to I Province of New Brunswick, this 17th day

stay roughly the same; is that correct? I of August AD 2013.

A. Yes, correct. I

Q. And with respect to craft brewers that have added !

CERTIACATE

Kathrvn A. Burke

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cans, were you personally involved in any of their decisions to I ACKNOWLEDGMENT OF DEPONENT

add cans? I I, ANDREW OLAND, do hereby certify A. No. I that I have read the foregoing transcript of my

Q. For the craft brewers that have added cans, do I testimony, and further certify that it is a true

you know what percentage of their sales remain in glass bottles? i and ac~urate record of i:y te~imony (with the

A. y un erstan ing is at t ere are anum er 0 i P L' C ct' M d d" th h b f I exception of the corrections listed below): i age ine orre ion

craft brewers that have gone exclusively into cans -- I _1_1 i 1-1_1 Q. And there's -- sorry. 1_1_1

-1-1 1-1_1 JI_I_I 1-1_1 1-1-1 1-1-1 1-1_1

11_1_1 _1_1

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,

Q. And those craft brewers that you're referencing

who are exclusively in cans, are they generally smaller craft

brewers?

A. Yes.

Q. And for the craft brewers that offer both bottles

and cans, do you know what the craft brewers' packaging mixes

are?

A. No, I do not. ANDREW OLAND

MS. VISWANATHA: Objection.

MS. ROBINSON: All right, I have no further questions.

MS. VISWANATHA: None for me.

(And further deponent saith naught.)

(Discovery adjourned 11:39 a.m.)

22 23

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24

i SUBSCRIBED AND SWORN TO BEFORE ME

I THIS _ DAY OF , 20_, i

I

,

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I (NOTARY PUBLIC) 2l§ MY COMMISSION EXPIRES:

18 (Pages 66 to 69)
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Exhibit "B"

CONFIDENTIA INFORMTION

SEEKING IN CAMERA TRETMENT

#1 Page 8, lines 20-25

Page 9, lines 1-3 & lines 16-23

Page 14, line 12 - Page 20, line 16

#2 Page 12, lines 16-20

Page 17, lines 7-21,25

Page 18, lines 2-4

#3 Page 19, lines 2-25

Page 20, lines 1-20

Page 21, lines 7-25

Page 22, lines 1-7

Page 37, line 25 - p. 39, line 5

Page 39, lines 12 - 18

#4 Page 24, lines 9-16

Page 35, lines 24-25

Page 60, lines 6-12

Page 63, lines 12-19

Page 65, lines 17-23

Index, Pages 1, 4, 9, 13, and 14

#5 Page 36, lines 1-4,16-25

Page 37, lines 1-9

Page 37, line 25 - p. 39, line 5

Page 39, lines 12 - 18

Page 55, lines 15-22

#6 Page 22, lines 1-7

Page 40, lines 2-24

Page 41, lines 24-25

Page 42, lines 1-10

#7 Page 14, line 12 - Page 20, line 16

Page 32, line 9 - Page 33, line 22

Page 35, lines 24-25

Page 45, lines 18-25

Page 46

Page 47, lines 1-10

Page 48, lines 22-25

Page 49

6122252.1
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#8 Page 14, line 12 - Page 16, line 16

Page 16, line 24 - Page 17, line 4

Page 24; lines 9-16

Page 40, lines 2-24

Page 46

Page 47, lines 1-10,18-25

Page 48, lines 22-25

Page 49

Page SO

Page 51

Page 52,1- 17

Page 60, lines 6-12

Page 63, lines 12-19

Page 65, lines 17-23

Glossary, Pages 1, 4, and 9

#9 Page 57, lines 7-17

Page 62, line 24- Page 63, line 8

Page 65, lines 2-6,

#10 Page 67, lines 9-12

6122252.1
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EXHIBIT 2

16

6123612.1
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UNITED STATES OF AMERICA

FEDERA TRAE COMMISSION

OFFICE OF ADMINISTRATIV LAW JUDGES

In the Matter of

Respondents.

)

)

)

)

)

)

)

)

)

)

)

DOCKET NO. 9356

ARAGH GROUP S.A.

a public limited liability company, and

PUBLIC

SAINT -GOBAIN CONTAINERS, INC.,

a public limited liability company, and

COMPAGNIE DE SAINT -GOBAIN,

a corporation,

ORDER ON UNOPPOSED MOTION OF NON-PARTY MOOSEHEA

BREWERIES LIMITED FOR IN CAMERA TRETMENT OF PROPOSED

EVIDENCE

Pursuant to Rule 3-4S(b) of the Commission's Rules of Practice, non-part

Moosehead Breweries Limited ( "Moosehead"), on December 9, 2013, filed a motion for

in camera treatment of certain deposition testimony taken from Andrew G. Oland,

President and Chief Executive Offcer of Moosehead on August 16, 2013 (the "Oland

Deposition") in connection with this adjudicative proceeding by both Complaint counsel

and Respondents counseL. Certain excerpts of the Oland Deposition have been

designated by the parties for introduction in the administrative trial in this matter.

Moosehead states that it has conferred with Complaint Counsel and Respondent's

counsel, and that neither part opposes Moosehead's request. As set forth below,

Moosehead's Motion is GRAED.

6123654.2
PUBLIC

The Federal Trade Commission recognizes the "substantial public interest in

holding all aspects of adjudicative proceedings, including the evidence adduced therein,

open to all interested persons." Hood, 58 F.T.C. at 1186. A full and open record of the

adjudicative proceedings promotes public understanding of decisions at the

Commission. In re Bristol-Myers Co., 90 F.T.C. 455, 458 (1977). A full and open record

also provides guidance to persons affected by its actions and helps to deter potential

violators of the laws the Commission enforces. Hood, 58 F.T.C. at 1186. The burden of

showing good cause for withholding documents from the public record rests with the

part requesting that documents be placed in camera. Id. At 1188. Moreover, there is a

presumption that in camera treatment will not be granted for information that is more

than three years old. Conference Interpreters, 1996 FTC LEXIS 298, at *15 (citing Gen.

Foods, 95 F.T.C. at 353; Crown Cork, 71 F.T.C. at 1715). However, a request for in

camera treatment by a non-part warrants "special solicitude." In re Crown Cork &

Seal Co., 71 F.T.C. 1714, 1715 (1967).

Under Commission Rule 3.4S(b)(3), indefinite in camera treatment is warranted

only "in unusual circumstances," including circumstances in which "the need for

confidentiality of the material. . . is not likely to decrease over time." 16 C.F.R.

§3,4S(b)(3). The Commission has nonetheless recognized that "in some unusual cases

'the competitive sensitivity or the proprietary value of the information for which in

camera treatment is requested will not necessarily diminish, and may actually increase,

with the passage of time'" In re Coca-Cola Co., 1990 FTC LEXIS 364, at *7 (Oct. 17,

1990) (quoting Commission comments on amendments to the Rule). In determining

the length of time for which in camera treatment is appropriate, the distinction between

2

6123654.2
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trade secrets and ordinary business records is important since ordinary business records

are granted less protection than trade secrets. See Hood, 58 F.T.C. at 1189.

Moosehead's Motion, filed December 9, 2013, is GRATED. In camera

treatment of the Confidential Information is granted for a period of five (5) years from

the date entry of this order, to expire on December _, 2018 and in camera treatment

for an indefinite period of time is granted for excerpts of the Oland Deposition identified

as follows: Page 8, line 20 through Page 9, line 3; Page 12, line 16 through line 20; Page

24, line 9 through line 16; Page 18, line 1 through Page 20, line 20; Page 32, line 8

through Page 33, line 8; Page 35, line 24 through Page 36, line 4; Page 36, line 16

through Page 37, line 9; Page 37, line 25 through Page 38, line 8; Page 40, line 2 through

line 24; Page 45, line 18 through line 25; Page 48, line 22 through Page 51, line 6; Page

55, line 15 through line 22; and Glossary, Page 4, for that portion of the Confidential

Information that Moosehead has additionally identified as trade secrets of Moosehead

for which the sensitivity of this information if disclosed would not decrease over time.

ORDERED:

D. Michael Chappell

Chief Administrative Law Judge

Date: December _, 2013

3

6123654.2