Page 1 - DEFENDANTS’ JOINT MOTION TO POSTPONE DEFENDANTS’ 

OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY 

INJUNCTION AND MEMORANDUM IN SUPPORT 

J. Matthew Donohue, OSB #065742 

MattDonohue@markowitzherbold.com 

Shannon Armstrong, OSB #060133 

ShannonArmstrong@markowitzherbold.com 

MARKOWITZ HERBOLD PC 

Suite 3000 Pacwest Center 

1211 SW Fifth Avenue 

Portland, OR 97204-3730 

Tel: (503) 295-3085 

Fax: (503) 323-9105 

Yonatan Even (Admitted pro hac vice) 

yeven@cravath.com 

CRAVATH, SWAINE & MOORE LLP 

825 8th Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212 474-3700 

 Attorneys for Defendant Anheuser-Busch Inbev, SA/NV 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

JAMES DEHOOG, BRIAN BOUTELLER, 

SHONNA BOUTELLER, CARLY 

BOWEN, TOM BUTTERBAUGH, ERICA 

I. CORONA, MARIA G. CORONA, CHRIS 

DENNETT, JOHN DESBIENS, 

MATTHEW JOHNSON, CYNTHIA A. 

KREITZBERG, EDWARD LAWRENCE, 

JERUSHA MALAER, ROBERT MALAER, 

MICHAEL MARTIN, MICHAEL 

MCATEE, DAVID MILLIGAN, JEFF 

REEDER, RALPH REEDER, WADE 

SCAGLIONE, BETH H. SILVERS, 

BRADLEY O. SILVERS, and PATRICE 

WADE, 

Plaintiffs,

v. 

ANHEUSER-BUSCH INBEV, SA/NV and 

SABMILLER PLC, 

Defendants.

CV No.: 1:15-cv-02250-CL

DEFENDANTS’ JOINT MOTION TO 

POSTPONE DEFENDANTS’ 

OPPOSITION TO PLAINTIFFS’ 

MOTION FOR PRELIMINARY 

INJUNCTION AND MEMORANDUM 

IN SUPPORT

Case 1:15-cv-02250-CL Document 83 Filed 03/09/16 Page 1 of 7
Page 2 - DEFENDANTS’ JOINT MOTION TO POSTPONE DEFENDANTS’ 

OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY 

INJUNCTION AND MEMORANDUM IN SUPPORT 

L.R 7-1(a) CERTIFICATION 

As required by L.R. 7-1(a), Defendants Anheuser-Busch InBev, SA/NV (“ABI”) 

and SABMiller plc (“SAB”) hereby certify that the parties made a good faith effort to resolve the 

issues contained in Defendants’ Motion to Postpone Defendants’ Opposition to Plaintiffs’ 

Motion for Preliminary Injunction (the “Motion to Postpone”), and have been unable to do so. 

Defendants respectfully submit this memorandum of law in support of their 

Motion to Postpone. 

MOTION 

Pursuant to L.R. 16-3, Defendants move to request that the Court postpone the 

date to file their Oppositions to the Motion for Preliminary Injunction and stay all related 

discovery until no later than 14 days after the Court has made its determination on Defendants’ 

Motions to Dismiss. 

FACTUAL BACKGROUND 

On November 11, 2015, ABI and SAB announced that the Boards of ABI and 

SAB had reached an agreement on the terms of a recommended acquisition of SAB by ABI. 

(ECF No. 1 (Compl. ¶ 16).) Concurrent with that announcement, ABI announced an agreement 

with Molson Coors Brewing Company for a complete divestiture of SAB’s interest in 

MillerCoors LLC. (ECF No. 1 (Compl. ¶ 33).) ABI and SAB announced their plan to close the 

deal during the second half of 2016, contingent on obtaining certain regulatory clearances. (ECF 

No. 44, Ex. 3.) The Department of Justice’s review of the proposed transactions is ongoing. 

On December 1, 2015, Plaintiffs filed their Complaint, naming ABI and SAB as 

defendants and alleging that the transactions would have certain anticompetitive effects. (ECF 

No. 1.) On February 3, 2016, ABI and SAB timely moved to dismiss the Complaint. (ECF No. 

41.) Ninety days after filing their Complaint and one hundred and ten days after the proposed 

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Page 3 - DEFENDANTS’ JOINT MOTION TO POSTPONE DEFENDANTS’ 

OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY 

INJUNCTION AND MEMORANDUM IN SUPPORT 

deal was announced, on February 29, 2016, Plaintiffs filed a Motion for Preliminary Injunction, 

as well as their Opposition to the Motions to Dismiss. (ECF Nos. 63, 64.) Per L.R. 7-1, March 

17, 2016, is the deadline for both Defendants’ Replies in Support of their Motions to Dismiss and 

Defendants’ Oppositions to Plaintiffs’ Motion for Preliminary Injunction. 

ARGUMENT 

The Court enjoys broad discretion to control its own docket and calendar. Forest 

Grove Sch. Dist. v. Student, No. 3:12-CV-1837-AC, 2013 WL 4012744, at *2 (D. Or. Aug. 5, 

2013) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay proceedings 

is incidental to the power inherent in every court to control the disposition of the causes on its 

docket with economy of time and effort for itself, for counsel, and for litigants.”).) Under L.R. 

16-3, a party asking the Court to exercise its broad discretion and extend a court-imposed deadline 

must do so by Motion showing (1) good cause for why the deadline should be modified; (2) 

effective prior use of time; (3) a new date for the deadline in question; and (4) the impact of the 

proposed extension on other existing deadlines, settings or schedules. As shown below, 

Defendants meet the requirements set forth in L.R. 16-3 warranting the extension of a courtimposed deadline. Accordingly, Defendants respectfully request that the Court postpone the date 

for Defendants to respond to Plaintiffs’ Motion for Preliminary Injunction (and any discovery 

sought in connection therewith) until the Defendants’ Motions to Dismiss have been decided, for 

the following reasons. 

First, there is good cause to postpone Defendants’ Oppositions to the Motion for 

Preliminary Injunction. Defendants used their time since the Complaint was filed to move 

promptly to dismiss the Complaint. The resolution of the Motions to Dismiss, which will be 

fully-briefed in eight days (by March 17, 2016), may result in the dismissal of Plaintiffs’ 

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Complaint, rendering the Motion for Preliminary Injunction moot. Meanwhile, Plaintiffs’ 

Motion for Preliminary Injunction requests discovery to help them prepare for a preliminary 

injunction hearing that has not yet been set (ECF No. 63, at 2-3) and that Plaintiffs did not seek 

until 26 days after Defendants filed their Motions to Dismiss and nearly four months after the 

proposed transactions were announced. (ECF No. 64.) Under these circumstances, there simply 

is no need for the parties to engage in immediate, costly expedited discovery. Instead, 

Defendants respectfully submit that good cause exists for the Court to direct a more efficient 

course whereby discovery is stayed until the Court decides the Motions to Dismiss. See Top 

Rank, Inc. v. Haymon, No. CV 15-4961, 2015 WL 9952887, at *2 (C.D. Cal. Sept. 17, 2015) 

(granting a stay of discovery pending a decision on a motion to dismiss, citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 558 (2007) for the proposition that “proceeding to antitrust discovery 

can be expensive”, and noting that “[s]taying discovery in antitrust cases pending the resolution 

of a motion to dismiss may be particularly appropriate”). Then, if necessary, the Court may set a 

schedule for discovery and briefing at a Rule 16 conference, in accordance with the Court’s 

Individual Rules of Practice.1

Second, the requested extension would have minimal impact, at most, on this 

proceeding. There is no pressing need for the parties urgently to brief Plaintiffs’ Motion for 

Preliminary Injunction in advance of a decision on Defendants’ Motions to Dismiss, and 

Plaintiffs stand to suffer no prejudice from the short stay sought by Defendants. ABI and SAB 

have publicly stated that they do not expect to close until “the second half of 2016”. (ECF No. 

44, Ex. 3.) As such, in the event that the case is not dismissed, and despite the nearly four- 

 1

 Case Management Information, Honorable Judge Clarke, available at

https://www.ord.uscourts.gov/index.php/court-info/judges/judge-clarke (“Judge Clarke sets Rule 

16 conferences in his cases after all defendants have answered”). 

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months that have passed since the proposed transaction was first announced, Plaintiffs will have 

ample time to conduct discovery, which they have stated will require no more than one month to 

complete. (ECF No. 63, at 12.) Moreover, courts have expressed hesitancy to act on anything in 

a private merger challenge while the transaction is under review by antitrust agencies, because 

such suits can be premature “until all required state and federal approvals have been obtained—

for the agencies might insist on changes that would substantially alter the merger’s competitive 

effects.” S. Austin Coal. Cmty. Council v. SBC Commc'ns, Inc., 191 F.3d 842, 843, 844–45 (7th 

Cir. 1999); see also AT & T Mobility LLC v. Smith, No. 11–cv–5157, 2011 WL 5924460, *9–10 

(E.D. Pa. Oct. 7, 2011); cf. Nat'l Ass'n of Chain Drug Stores v. Express Scripts, Inc., No. CIV.A. 

12-395, 2012 WL 3655459, at *7 (W.D. Pa. Aug. 27, 2012) (filing after agency review is 

appropriate). In any event, given the briefing schedule on Defendants’ Motions to Dismiss, the 

requested delay will be minimal, will not significantly impact the progress or scheduling of this 

case and will allow ample time for Plaintiffs’ requested discovery, should Plaintiffs’ Complaint 

survive the Motions to Dismiss. 

Finally, even if the time until closing was pressing, Plaintiffs’ request to expedite 

should not be countenanced when Plaintiffs chose to delay filing their Motion for Preliminary 

Injunction for almost four months. If the need to take discovery and brief a preliminary 

injunction motion was in fact urgent (which, Defendants submit, it is not), Plaintiffs could have 

filed their motion and moved for expedited discovery months ago. Nothing has changed in the 

interim to make Plaintiffs’ motion more pressing now than it was on the day the proposed 

transactions were announced, other than through Plaintiffs’ own delay. 

Similar considerations have routinely led courts around the country to stay the 

proceedings in antitrust cases, including a stay of discovery, while motions to dismiss were 

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OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY 

INJUNCTION AND MEMORANDUM IN SUPPORT 

pending. See Top Rank Inc., 2015 WL 9952887, at *2; Actelion Pharms. Ltd v. Apotex Inc., No. 

12-5743, 2013 WL 5524078, at *4 (D.N.J. Sept. 6, 2013) (granting a stay of discovery pending 

resolution of a motion to dismiss in an antitrust case); Nexstar Broad., Inc. v. Granite Broad. 

Corp., No. 1:11-CV-249, 2011 WL 4345432, at *3 (N.D. Ind. Sept. 15, 2011) (granting a stay of 

discovery pending a decision on a motion to dismiss and stating that “[c]ritically, this is an 

antitrust case, which directly invokes the Supreme Court’s concerns in Twombly about 

burdensome and expensive discovery”); DSM Desotech Inc. v. 3D Sys. Corp., No. 08 CV 1531, 

2008 WL 4812440, at *3 (N.D. Ill. Oct. 28, 2008) (granting a stay of discovery in an antitrust 

case pending a decision on a motion to dismiss); Rio Grande Royalty Co. v. Energy Transfer 

Partners, L.P., No. H-08-CV-0857, 2008 WL 8465061, at *1 (S.D. Tex. Aug. 11, 2008) 

(granting a stay of discovery in an antitrust case pending a decision on a motion to dismiss). The 

same result is warranted here.

CONCLUSION 

Defendants respectfully request that the Court postpone the date to file the 

Oppositions to the Motion for Preliminary Injunction, and all related discovery, until no later 

than 14 days after the Court has made its determination on Defendants’ Motions to Dismiss. 

DATED this 9th day of March, 2016. 

MARKOWITZ HERBOLD PC 

By: /s/ Shannon Armstrong

J. Matthew Donohue, OSB #065742 

MattDonohue@markowitzherbold.com 

Shannon Armstrong, OSB #060133 

ShannonArmstrong@markowitzherbold.com 

(503) 295-3085 

CRAVATH, SWAINE & MOORE LLP 

Yonatan Even (Admitted pro hac vice) 

yeven@cravath.com 

(212) 474-1000 

Case 1:15-cv-02250-CL Document 83 Filed 03/09/16 Page 6 of 7
Page 7 - DEFENDANTS’ JOINT MOTION TO POSTPONE DEFENDANTS’ 

OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY 

INJUNCTION AND MEMORANDUM IN SUPPORT 

Attorneys for Defendant Anheuser-Busch Inbev, 

SA/NV 

Michael G. Hanlon 

Michael G. Hanlon OSB No. 792550 

Law Offices of Michael G. Hanlon, P.C. 

101 SW Main St, Suite 825 

Portland, OR 97204 

Tel: 503-228-9787 

Fax: 503-224-4200 

mgh@hanlonlaw.com 

 

J. Robert Robertson (Pro Hac Vice)

Hogan Lovells US LLP 

555 Thirteenth St, NW 

Washington, DC 20004 

Tel: 202-637-5774 

Fax: 202-637-5910 

robby.robertson@hoganlovells.com 

 

Attorneys for SABMiller plc 

502649 

Case 1:15-cv-02250-CL Document 83 Filed 03/09/16 Page 7 of 7