81_FR_51615 81 FR 51465 - United States v. Anheuser-Busch InBev SA/NV et al.; Proposed Final Judgment and Competitive Impact Statement

81 FR 51465 - United States v. Anheuser-Busch InBev SA/NV et al.; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE
Antitrust Division

Federal Register Volume 81, Issue 150 (August 4, 2016)

Page Range51465-51488
FR Document2016-18504

Federal Register, Volume 81 Issue 150 (Thursday, August 4, 2016)
[Federal Register Volume 81, Number 150 (Thursday, August 4, 2016)]
[Notices]
[Pages 51465-51488]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-18504]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Anheuser-Busch InBev SA/NV et al.; Proposed 
Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation, and Competitive Impact Statement have been filed with the 
United States District Court for the District of Columbia in United 
States of America v. Anheuser Busch InBev SA/NV et al., Civil Action 
No. 1:16-cv-01483. On July 20, 2016, the United States filed a

[[Page 51466]]

Complaint alleging that the proposed acquisition by Anheuser-Busch 
InBev SA/NV (``ABI'') of SABMiller plc (``SABMiller'') would violate 
Section 7 of the Clayton Act, 15 U.S.C. 18. The proposed Final 
Judgment, filed at the same time as the Complaint, requires the 
divestiture of SABMiller's equity and ownership stake in MillerCoors 
LLC, which is the joint venture through which SABMiller conducts 
substantially all of its operations in the United States, and 
SABMiller's world-wide rights to Miller-branded beers. ABI must also 
offer the acquirer of the divested assets perpetual, fully paid-up, 
royalty-free licenses to permit the acquirer to manufacture, import, 
distribute, market, and sell certain SABMiller-owned beers in the 
United States. The proposed Final Judgment also requires ABI to 
undertake certain actions and refrain from certain conduct for the 
purposes of remedying the potential loss of competition alleged in the 
Complaint.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's Web site at http://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the District of 
Columbia. Copies of these materials may be obtained from the Antitrust 
Division upon request and payment of the copying fee set by Department 
of Justice regulations.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, including the name of the submitter, and 
responses thereto, will be posted on the Antitrust Division's Web site, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to Peter Mucchetti, 
Chief, Litigation I, Antitrust Division, Department of Justice, 450 
Fifth Street NW., Suite 4100, Washington, DC 20530 (telephone: 202-353-
4211).

Patricia A. Brink,
Director of Civil Enforcement.

United States District Court for the District of Columbia

    UNITED STATES OF AMERICA, U.S. Department of Justice, Antitrust 
Division, 450 Fifth Street NW., Suite 4100, Washington, DC 20530, 
Plaintiff, v. ANHEUSER-BUSCH InBEV SA/NV, Brouwerijplein, 1, 3000 
Leuven, Belgium, and SABMILLER plc, SABMiller House, Church Street 
West, Woking, Surry, GU21 6HS, United Kingdom, Defendants.

CASE NO.: 1:16-cv-01483
JUDGE: Emmet G. Sullivan
 FILED: 07/20/2016

Complaint

    1. The United States of America brings this civil antitrust action 
to enjoin Anheuser-Busch InBev SA/NV (``ABI'') from acquiring SABMiller 
plc (``SABMiller''). The United States alleges as follows:

I. Nature of the Action

    2. On November 11, 2015, ABI agreed to acquire SABMiller in a 
transaction valued at $107 billion.
    3. ABI is the largest brewing company both in the United States and 
worldwide. In the United States, ABI accounts for approximately 47% of 
all beer sales.\1\
---------------------------------------------------------------------------

    \1\ National market shares are based on dollar-sales data from 
IRI, a market research firm, whose data are commonly used by 
industry participants. The national market shares reflect only off-
premise sales. ABI accounts for approximately 35% of dollar sales of 
beer made only through grocery stores.
---------------------------------------------------------------------------

    4. SABMiller is the second-largest global brewing company. In the 
United States, SABMiller owns 58% of MillerCoors LLC (``MillerCoors''), 
which is a joint venture between SABMiller and Molson Coors Brewing 
Company (``Molson Coors''). In the United States, MillerCoors is the 
second-largest brewing company, accounting for 25% of all beer sales, 
and is ABI's largest competitor.
    5. ABI and MillerCoors are the two largest brewers in local beer 
markets throughout the United States and have combined market shares 
that range from 37% to 94% of beer sales in 58 Metropolitan Statistical 
Areas (``MSA'') in the United States.\2\ In more than 15 of these MSAs, 
ABI and MillerCoors jointly account for 70% or more of beer sales.
---------------------------------------------------------------------------

    \2\ The MSAs are defined by IRI. These 58 MSAs represent every 
MSA in the United States for which reliable data are available at 
the MSA level. MSA-level data reflect dollar sales of beer only 
through grocery stores.
---------------------------------------------------------------------------

    6. ABI's proposed acquisition of SABMiller would give ABI a 
majority ownership interest in and 50% governance rights over 
MillerCoors. Consequently, this transaction would eliminate head-to-
head competition between the two largest brewers in the United States--
ABI and MillerCoors--both nationally and in every local market in the 
United States. This reduction in competition would likely result in 
increased beer prices and fewer choices for beer consumers across the 
United States.
    7. This transaction threatens other likely anticompetitive effects. 
ABI's proposed acquisition of SABMiller would increase ABI's incentive 
and ability to disadvantage its remaining rivals by limiting or 
impeding the distribution of their beers, thereby restricting their 
ability to serve the millions of Americans who spend over $100 billion 
on beer every year. These exclusionary effects would fall especially on 
brewers and consumers of high-end beers that have served as an 
important constraint on ABI's ability to raise the price of its beers, 
and thus would allow ABI to charge consumers higher prices for its 
beers.
    8. ABI, as the largest U.S. brewer, uses a variety of practices and 
contractual provisions to promote exclusivity from distributors that 
sell ABI beer. Among other things, ABI has established financial 
incentive programs that reward distributors based on the percentage of 
ABI beer that a distributor sells as compared to the beer of ABI 
competitors. Moreover, ABI insists on contractual terms that limit a 
distributor's ability to promote and sell a competitor's beer. If 
permitted to acquire SABMiller, ABI would be able to expand these 
practices in its current distribution channel and to pursue a similar 
strategy with distributors that currently sell the beers of MillerCoors 
and third-party rivals. Consequently, ABI's acquisition of a 
controlling interest in MillerCoors via its acquisition of SABMiller 
would likely harm competition by undermining the ability of its 
remaining rivals to compete with ABI, leading to higher prices, fewer 
choices, and less innovative products for U.S. beer consumers.
    9. For these reasons, ABI's proposed acquisition of SABMiller 
violates Section 7 of the Clayton Act, 15 U.S.C. 18, and should be 
permanently enjoined.

II. Jurisdiction, Venue, and Interstate Commerce

    10. The United States brings this action pursuant to Section 15 of 
the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain 
Defendants ABI and SABMiller from violating Section 7 of the Clayton 
Act, as amended, 15 U.S.C. 18. The Court has subject matter 
jurisdiction over this action pursuant to Section 15 of the Clayton 
Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 1345.
    11. ABI and SABMiller produce and sell beer in the flow of 
interstate commerce and their production and sale of beer substantially 
affect interstate commerce. ABI and SABMiller have each consented to 
personal jurisdiction and venue in this judicial district for purposes 
of this action. Venue is proper for ABI, a Belgium corporation, and 
SABMiller, a United Kingdom corporation, in this judicial district

[[Page 51467]]

under Section 12 of the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391.

III. The Defendants and the United States Beer Industry

A. The Defendants

    12. ABI is a corporation organized and existing under the laws of 
Belgium, with its headquarters in Leuven, Belgium. ABI owns and 
operates 19 breweries in the United States. ABI owns more than 40 major 
beer brands sold in the United States, including Bud Light--the top-
selling beer brand in the United States--and other popular beer brands, 
such as Budweiser, Busch, Michelob, Natural Light, Stella Artois, Shock 
Top, Goose Island, and Beck's.
    13. SABMiller is a corporation organized and existing under the 
laws of the United Kingdom, with its headquarters in London, England. 
SABMiller operates in the United States through its 58% ownership 
interest in the MillerCoors joint venture.
    14. MillerCoors is a limited liability company organized and 
existing under the laws of the State of Delaware, with its principal 
place of business in Chicago, Illinois. Under MillerCoors' corporate 
governance structure, SABMiller and Molson Coors, through their 
designated representatives, have an equal right to govern MillerCoors. 
MillerCoors owns and operates 12 breweries in the United States. 
MillerCoors has the sole right to produce and sell in the United States 
more than 40 major brands of beer, including Coors Light and Miller 
Lite--the second- and fourth-highest selling beer brands in the United 
States. MillerCoors also has the right to produce and sell in the 
United States other popular beer brands, such as Miller Genuine Draft, 
Coors Banquet, and Blue Moon. In addition, MillerCoors has the 
exclusive right to import into and sell in the United States certain 
beer brands owned by SABMiller, including Peroni, Grolsch, and Pilsner 
Urquell.

B. Beer Segments in the United States

    15. Beers sold in the United States are segmented based on price 
and quality. Beers in the United States can generally be grouped into 
three segments: Sub-premium, premium, and high-end. A large majority of 
the beers sold by ABI and MillerCoors in the United States fall into 
the premium and sub-premium beer segments.
    16. The sub-premium segment, also referred to as the value segment, 
generally consists of lager beers, such as Natural and Keystone branded 
beer, and some ales and malt liquor. Sub-premium beers are priced lower 
than premium beers and are generally perceived as being of lower 
quality than premium beers.
    17. The premium segment generally consists of medium-priced 
American lager beers, such as ABI's Budweiser, and the Miller and Coors 
brand families, including the ``light'' varieties.\3\
---------------------------------------------------------------------------

    \3\ ABI also identifies a ``premium plus'' segment that consists 
largely of American beers that are priced somewhat higher than 
Budweiser and Bud Light. Examples of beers that ABI identifies as 
``premium plus'' beers include Bud Light Lime, Bud Light Platinum, 
Bud Light Lime-a-Rita, and Michelob Ultra.
---------------------------------------------------------------------------

    18. The sub-premium and premium segments accounted for 69% of all 
beer sold in the United States in 2015.
    19. The high-end segment generally consists of craft beers, which 
are often produced in small-scale breweries, and imported beers. High-
end beers sell at a wide variety of prices, most of which are higher 
than the prices for premium beers. Examples of high-end craft beers 
include Dogfish Head, Flying Dog, and Sam Adams. Examples of high-end 
imports include Corona, Stella Artois, and Peroni.
    20. High-end beers account for a much smaller portion of the beer 
sold by ABI and MillerCoors in the United States than premium and sub-
premium beer. However, over the last five years, the high-end beer 
segment's market share in the United States has increased from 21% to 
31%, while the market share of the premium and sub-premium segments has 
decreased from 79% to 69%.
    21. Historically, ABI has employed a ``price leadership'' strategy 
whereby ABI, as the largest U.S. brewer, seeks to establish industry-
wide price increases by being the first brewer to announce its prices 
for the upcoming year. In most local markets, ABI is the market share 
leader and issues its price announcement first, purposely making its 
price increases transparent to the market so its competitors will 
follow its lead. These price increases vary by region, but typically 
cover a broad range of beer brands and packages.
    22. For many years, MillerCoors has followed ABI's price increases 
to a significant degree.
    23. Brewers with a broad portfolio of beer brands, such as ABI and 
MillerCoors, seek to maintain ``price gaps'' between each beer segment 
to minimize competition across segments. As ABI has continued to raise 
premium prices, it is increasingly concerned about the threat of high-
end brands constraining its ability to lead future price increases. As 
the prices of premium brands approach the prices of high-end brands, 
consumers are increasingly willing to trade up from one category of 
brands to another. Consequently, competition in the high-end beer 
segment serves as an important constraint on the ability of ABI and 
MillerCoors to raise--either unilaterally or through coordination--beer 
prices in the United States.

C. Beer Distribution in the United States

    24. Most brewers use distributors to merchandise, sell, and deliver 
beer to retailers. Those retailers are primarily grocery stores, large 
retailers (such as Target and Walmart), convenience stores, liquor 
stores, restaurants, and bars. Retailers, in turn, sell beer to 
consumers. Beers brewed in foreign countries are typically sold to an 
importer that resells the beer to distributors.
    25. Distributors owned by ABI currently distribute about 9% of 
ABI's beer in the United States. These distributors typically 
distribute only brands that are owned by or affiliated with ABI. To the 
extent that ABI-owned distributors sell beer brands that are not owned 
by or affiliated with ABI, those brands tend to be local craft beers 
with limited sales and high operating costs.
    26. Almost all of the remaining volume of ABI's beer is sold by 
distributors who sell large volumes of ABI beer, including the 
Budweiser and Bud Light brands of beer, but are not owned by ABI 
(``ABI-Affiliated Wholesalers''). ABI beer brands account for 
approximately 90% by volume, on average, of the beer sold by ABI-
Affiliated Wholesalers. ABI-Affiliated Wholesalers often also 
distribute high-end beers that compete with ABI's beers, such as 
Heineken or Sam Adams.
    27. ABI exerts considerable influence over ABI-Affiliated 
Wholesalers, in part by requiring that these distributors enter into a 
Wholesaler Equity Agreement (``Equity Agreement'') with ABI. The Equity 
Agreement contains a number of provisions that are designed to 
encourage ABI-Affiliated Wholesalers to sell and promote ABI's beer 
brands instead of the beer brands of ABI's competitors.
    28. For example, the Equity Agreement prohibits an ABI-Affiliated 
Wholesaler from requesting that a bar replace an ABI tap handle with a 
competitor's tap handle or that a retailer replace ABI shelf space with 
a competitor's beer. Further, the Equity Agreement prohibits an ABI-
Affiliated Wholesaler from compensating its salespeople for their sales 
of competing beer brands (such as a dollar-per-case incentive) unless 
it provides the same

[[Page 51468]]

incentives for sales of certain ABI beer brands.
    29. ABI also provides payments to ABI-Affiliated Wholesalers based 
on their ABI ``alignment,'' that is, the amount of ABI beer that they 
sell relative to the beer of ABI competitors. For example, under a 
program known as the Voluntary Anheuser-Busch Incentive for Performance 
Program, ABI offers ABI-Affiliated Wholesalers that are 90% or more 
``aligned'' a payment for each case-equivalent of ABI beer they sell. 
The size of the payment increases based on the ABI-Affiliated 
Wholesaler's level of alignment. Only the sales of very small, local 
craft beers are excluded from the calculation of an ABI-Affiliated 
Wholesaler's level of alignment.

IV. The Relevant Market

A. Relevant Product Market

    30. Beer is a relevant product market and line of commerce under 
Section 7 of the Clayton Act. Beer is usually made from a malted cereal 
grain, flavored with hops, and brewed via a fermentation process. 
Beer's taste, alcohol content, image, price, and other factors make it 
substantially different from other alcoholic beverages.
    31. Other alcoholic beverages, such as wine and distilled spirits, 
are not sufficiently substitutable to discipline a small but 
significant and non-transitory increase in the price of beer, and 
relatively few consumers would substantially reduce their beer 
purchases in the event of such a price increase. Therefore, a 
hypothetical monopolist producer of beer likely would increase its 
prices by at least a small but significant and non-transitory amount.

B. Relevant Geographic Market

    32. ABI and MillerCoors are the two largest brewers in local 
markets throughout the United States. Appendix A lists the 58 MSAs in 
the United States for which reliable data on beer sales are available. 
These and the other MSAs in the United States are relevant geographic 
markets for antitrust purposes. These local markets currently benefit 
from head-to-head competition between ABI and MillerCoors, and in each 
local market the proposed acquisition would likely substantially lessen 
competition.
    33. The relevant geographic markets for analyzing the effects of 
the proposed acquisition are best defined by the locations of the 
customers who purchase beer, rather than by the locations of breweries.
    34. Brewers develop pricing and promotional strategies based on an 
assessment of local demand for their beer, local competitive 
conditions, and local brand strength. Thus, the price for a brand of 
beer can vary by local market.
    35. Brewers are able to price differently in different locations, 
in part because arbitrage across local markets is unlikely to occur. 
Consumers buy beer near their homes and typically do not travel to 
other areas to buy beer when prices rise. Also, distributors' contracts 
with brewers and importers contain territorial limits and prohibit 
distributors from reselling beer outside their territories. In 
addition, each state has different laws and regulations regarding beer 
distribution and sales that would make arbitrage unfeasible.
    36. A hypothetical monopolist of beer sold in each MSA in the 
United States would likely increase its prices in that local market by 
at least a small but significant and non-transitory amount. Therefore, 
these areas are relevant geographic markets and ``sections of the 
country'' within the meaning of Section 7 of the Clayton Act.
    37. Competition also exists among brewers on a national level, 
which affects local markets throughout the United States. Decisions 
about beer brewing, marketing, and brand building typically take place 
on a national level. In addition, a significant portion of beer 
advertising is placed on national television, and brewers commonly 
compete for national retail accounts. General pricing strategy also 
typically originates at a national level.
    38. A hypothetical monopolist of beer sold in the United States 
would likely increase its prices by at least a small but significant 
and non-transitory amount. Accordingly, the United States is a relevant 
geographic market under Section 7 of the Clayton Act.

V. ABI's Acquisition of SABMiller Is Likely To Result in 
Anticompetitive Effects

A. The Relevant Markets Are Highly Concentrated and the Proposed 
Acquisition Is Presumptively Illegal

    39. The relevant beer markets are highly concentrated and would 
become significantly more concentrated as a result of the proposed 
acquisition. ABI and MillerCoors jointly account for approximately 72% 
of the national beer market. In every local market for which reliable 
data are available, ABI and MillerCoors have a combined market share 
that ranges from 37% to 94%. Indeed, in 18 MSAs, ABI and MillerCoors 
have a combined market share of 70% or greater. See Appendix A.
    40. Market concentration is often one useful indicator of the level 
of competitive vigor in a market and the likely competitive effects of 
a merger. The more concentrated a market, and the more a transaction 
would increase concentration in a market, the more likely it is that 
the transaction would result in harm to consumers by meaningfully 
reducing competition.
    41. Concentration in relevant markets is typically measured by the 
Herfindahl-Hirschman Index (or ``HHI,'' defined and explained in 
Appendix B). Markets in which the HHI is in excess of 2,500 points are 
considered highly concentrated. See U.S. Dep't of Justice & Fed. Trade 
Comm'n, Horizontal Merger Guidelines ] 5.3 (revised Aug. 19, 2010) 
(``Merger Guidelines''), https://www.justice.gov/atr/horizontal-merger-guidelines-08192010.
    42. The beer industry in the United States is highly concentrated 
and would become even more concentrated as a result of ABI's proposed 
acquisition of SABMiller. Market share estimates demonstrate that 
nationally, and in all but three local geographic markets identified in 
Appendix A, the post-acquisition HHI would exceed 2,500 points. In one 
local market (the Wichita, Kansas MSA), the post-acquisition HHI would 
be more than 8,900. Moreover, the HHI would increase in every relevant 
geographic market by at least 680 points. Based on the resulting HHI 
measures of concentration, and the increase in concentration that would 
result from the transaction, ABI's proposed acquisition of SABMiller is 
presumptively anticompetitive. See Merger Guidelines ] 5.3.

B. ABI's Acquisition of SABMiller Would Eliminate Head-to-Head 
Competition Between ABI and MillerCoors

    43. Today, ABI and MillerCoors compete directly against each other 
both nationally and in every local market in the United States.
    44. ABI's proposed acquisition of SABMiller would give ABI a 
majority ownership interest in and 50% governance rights over 
MillerCoors and thereby eliminate competition between the two largest 
beer brewers in the United States. Thus, ABI's acquisition of SABMiller 
would likely substantially lessen competition both nationally and in 
every local market in the United States, and therefore violate Section 
7 of the Clayton Act.

[[Page 51469]]

C. ABI's Acquisition of SABMiller Would Increase ABI's Incentive and 
Ability to Disadvantage High-End Rivals by Limiting Their Distribution

    45. ABI's proposed acquisition of SABMiller would also harm 
competition by increasing ABI's incentive and ability to engage in 
anticompetitive conduct that limits and impedes the distribution of its 
high-end rivals' beer. With the elimination of MillerCoors as a 
competitive constraint, ABI's high-end rivals would become a more 
important constraint on ABI's ability to raise beer prices.
    46. ABI currently encourages ABI-Affiliated Wholesalers to limit 
their sales of the beers of ABI's high-end rivals through the Equity 
Agreement and ABI's incentive programs. Consequently, the beers of 
ABI's competitors account for only a small percentage of the sales of 
many ABI-Affiliated Wholesalers. ABI has also purchased distributors in 
states in which those purchases are legal, allowing ABI directly to 
limit sales of ABI's high-end rivals.
    47. After the proposed acquisition, ABI would have a greater 
incentive and ability to invest resources in distributor acquisitions 
and to use practices that restrict its rivals' access to distribution. 
With control over the MillerCoors brands, ABI could encourage the 
distributors of both ABI brands and MillerCoors brands to limit their 
sales of high-end rivals' beer, which would likely result in increased 
beer prices and fewer choices for consumers.

VI. Absence of Countervailing Factors

    48. New entry and expansion by competitors likely will not be 
timely and sufficient in scope to prevent the acquisition's likely 
anticompetitive effects. Barriers to entry and expansion within each 
relevant market include: (i) The substantial time and expense required 
to build a brand's reputation; (ii) the substantial sunk costs for 
promotional and advertising activity needed to secure the distribution 
and placement of a new entrant's beer products in retail outlets; (iii) 
the time and cost of building new breweries and other facilities; and 
(iv) the difficulty of developing an effective network of beer 
distributors with incentives to promote and expand a new entrant's 
sales.
    49. The anticompetitive effects of the proposed acquisition are not 
likely to be eliminated or mitigated by any efficiencies the proposed 
acquisition may achieve.

VII. Violation Alleged

    50. The United States hereby incorporates the allegations of 
paragraphs 1 through 49 above as if set forth fully herein.
    51. The proposed transaction would likely substantially lessen 
competition in interstate trade and commerce, in violation of Section 7 
of the Clayton Act, 15 U.S.C. 18, and would likely have the following 
anticompetitive effects, among others:
    (a) Head-to-head competition between ABI and MillerCoors for beer 
sales in the relevant geographic markets would be eliminated or 
substantially lessened; and
    (b) competition generally in the relevant geographic markets for 
beer would be substantially lessened.
Requested Relief
    The United States requests:
    1. That the proposed acquisition be adjudged to violate Section 7 
of the Clayton Act, 15 U.S.C. 18;
    2. That Defendants be permanently enjoined and restrained from 
carrying out the proposed transaction or from entering into or carrying 
out any other agreement, understanding, or plan by which ABI would 
acquire, be acquired by, or merge with SABMiller or MillerCoors;
    3. That the United States be awarded costs in this action; and
    4. That the United States have such other relief as the Court may 
deem just and proper.

Dated: July 20, 2016

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA:

______/s/______
SONIA K. PFAFFENROTH (D.C. Bar #467946)
Deputy Assistant Attorney General

______/s/______
JUAN A. ARTEAGA
Deputy Assistant Attorney General

______/s/______
PATRICIA A. BRINK
Director of Civil Enforcement

______/s/______
ERIC MAHR (D.C. Bar #459350)
Director of Litigation

______/s/______
PETER J. MUCCHETTI (D.C. Bar #463202)
Chief, Litigation I

______/s/______
MICHELLE R. SELTZER * (D.C. Bar #475482)
Assistant Chief, Litigation I

TRAVIS R. CHAPMAN
DAVID C. KELLY
JILL C. MAGUIRE (D.C. Bar #979595)
DAVID M. STOLTZFUS

U.S. Department of Justice, Antitrust Division, Litigation I 
Section, 450 Fifth Street NW., Suite 4100, Washington, DC 20530, 
Telephone: (202) 353-3865, Facsimile: (202) 307-5802, E-mail: 
michelle.seltzer@usdoj.gov.

Attorneys for the United States
* Attorney of Record

Appendix A

                               Relevant Geographic Markets and Concentration Data
----------------------------------------------------------------------------------------------------------------
                                                                                       Post-
                  Metropolitan statistical area                   Combined share    acquisition    HHI increase
                                                                        (%)             HHI
----------------------------------------------------------------------------------------------------------------
Wichita, KS.....................................................              94            8904            4431
Tulsa, OK.......................................................              90            8094            3477
Green Bay, WI...................................................              87            7551            3761
Oklahoma City, OK...............................................              83            6985            3013
Peoria/Springfield..............................................              80            6465            3148
St. Louis, MO...................................................              79            6268            2343
Milwaukee, WI...................................................              78            6105            2303
Salt Lake City, UT..............................................              77            6081            2828
Denver, CO......................................................              76            5916            2903
Omaha, NE.......................................................              76            5796            2643
Louisville, KY..................................................              76            5791            2774
Des Moines, IA..................................................              75            5694            2614
New Orleans/Mobile..............................................              75            5646            2593
Minneapolis/St Paul.............................................              72            5506            2478
Indianapolis, IN................................................              72            5296            2605
Roanoke, VA.....................................................              72            5205            2454
Birmingham/Montgom..............................................              71            5115            2303

[[Page 51470]]

 
Kansas City, KS.................................................              70            5027            2328
Memphis, TN.....................................................              69            4909            2085
Cincinnati/Dayton...............................................              69            4841            2350
Tampa/St Petersburg.............................................              69            4832            2091
Knoxville.......................................................              68            4763            2237
Spokane, WA.....................................................              68            4760            2316
Toledo..........................................................              68            4699            2163
Charlotte, NC...................................................              67            4626            2200
Phoenix/Tucson..................................................              66            4624            2147
Houston, TX.....................................................              66            4594            1910
Richmond/Norfolk................................................              67            4580            2168
Jacksonville, FL................................................              66            4513            1805
Dallas/Ft. Worth................................................              65            4474            2113
Raleigh/Greensboro..............................................              66            4427            2018
Orlando, FL.....................................................              65            4416            1898
Grand Rapids, MI................................................              65            4326            2053
Las Vegas.......................................................              63            4221            1948
Chicago, IL.....................................................              63            4157            1838
Nashville, TN...................................................              64            4155            1958
Boise, ID.......................................................              63            4150            1923
Detroit, MI.....................................................              62            3995            1891
Columbus, OH....................................................              59            3611            1722
Cleveland, OH...................................................              59            3568            1722
Hartford/Springfield............................................              57            3552            1442
Albany, NY......................................................              57            3528            1640
Miami/Ft Lauderdale.............................................              53            3367            1274
Los Angeles, CA.................................................              49            3261            1166
Atlanta, GA.....................................................              55            3241            1506
New York........................................................              53            3190            1319
Syracuse, NY....................................................              54            3179            1400
Portland, OR....................................................              54            3042            1382
Seattle/Tacoma..................................................              51            2878            1323
Boston, MA......................................................              50            2836            1169
Buffalo/Rochester...............................................              50            2773            1207
Sacramento, CA..................................................              48            2715            1174
San Diego, CA...................................................              47            2594            1085
Harrisburg/Scranton.............................................              49            2582            1172
Baltimore/Washington............................................              48            2513            1124
San Fran/Oakland................................................              41            2251             820
Pittsburgh, PA..................................................              42            1960             835
Philadelphia, PA................................................              37            1556             683
----------------------------------------------------------------------------------------------------------------

Appendix B

Definition of the Herfindahl-Hirschman Index

    ``HHI'' means the Herfindahl-Hirschman Index, a commonly accepted 
measure of market concentration. It is calculated by squaring the 
market share of each firm competing in the market and then summing the 
resulting numbers. For example, for a market consisting of four firms 
with shares of 30 percent, 30 percent, 20 percent, and 20 percent, the 
HHI is 2,600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 2,600). The HHI takes 
into account the relative size distribution of the firms in a market 
and approaches zero when a market consists of a large number of small 
firms. The HHI increases both as the number of firms in the market 
decreases and as the disparity in size between those firms increases.
    Markets in which the HHI is in excess of 2,500 are considered to be 
highly concentrated. See U.S. Dep't of Justice & Fed. Trade Comm'n, 
Horizontal Merger Guidelines ] 5.3 (revised Aug. 19, 2010), https://www.justice.gov/atr/horizontal-merger-guidelines-08192010. Transactions 
that increase the HHI by more than 200 points in highly concentrated 
markets presumptively raise antitrust concerns under the guidelines 
issued by the U.S. Department of Justice and Federal Trade Commission. 
See id.

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Anheuser-Busch InBEV SA/
NV, and SABMILLER plc, Defendants.

CASE NO.: 1:16-cv-01483
JUDGE: Emmet G. Sullivan
FILED: 07/20/2016

Competitive Impact Statement

    Pursuant to Section 2(b) of the Antitrust Procedures and Penalties 
Act (``APPA'' or ``Tunney Act''), 15 U.S.C. 16(b), Plaintiff United 
States of America (``United States'') files this Competitive Impact 
Statement relating to the proposed Final Judgment submitted on July 20, 
2016, for entry in this civil antitrust proceeding.\1\
---------------------------------------------------------------------------

    \1\ Capitalized terms not otherwise defined herein have the 
meaning ascribed to them in the proposed Final Judgment.
---------------------------------------------------------------------------

I. Nature and Purpose of the Proceeding

    On November 11, 2015, Defendant Anheuser-Busch InBev SA/NV 
(``ABI'') agreed to acquire Defendant SABMiller plc (``SABMiller'') in 
a transaction valued at $107 billion. The United States filed a civil 
antitrust Complaint against ABI and SABMiller (collectively, 
``Defendants'') on July 20, 2016, seeking

[[Page 51471]]

to enjoin the proposed acquisition. The Complaint alleges that this 
proposed transaction will likely lessen competition substantially in 
the U.S. beer industry--an industry in which millions of U.S. consumers 
spend over $100 billion per year--in violation of Section 7 of the 
Clayton Act, 15 U.S.C. 18.
    Specifically, the Complaint alleges that this proposed transaction 
will reduce competition by eliminating head-to-head competition between 
the two largest beer brewers in the United States--ABI and MillerCoors 
LLC (``MillerCoors'')--both nationally and in every local market in the 
United States. The Complaint also alleges that the elimination of 
competition between ABI and MillerCoors will increase ABI's incentive 
and ability to disadvantage its remaining rivals--in particular, 
brewers of high-end beers that serve as an important constraint on 
ABI's ability to raise its beer prices--by limiting or impeding the 
distribution of their beers. As detailed in the Complaint, these 
anticompetitive effects likely would result in higher beer prices and 
fewer choices for U.S. beer consumers.
    Simultaneously with the filing of the Complaint, the United States 
filed a Hold Separate Stipulation and Order (``Hold Separate 
Stipulation and Order'') and a proposed Final Judgment, which seek to 
prevent the transaction's likely anticompetitive effects.
    As detailed below, the proposed Final Judgment requires ABI to 
divest SABMiller's equity and ownership stake in MillerCoors, which is 
the joint venture through which SABMiller conducts substantially all of 
its operations in the United States, as well as certain other assets 
related to MillerCoors' business and the Miller-branded beer business 
outside of the United States. The divestiture will not only maintain 
MillerCoors as an independent competitor, but will protect MillerCoors' 
competitiveness by giving MillerCoors (or its majority owner) (i) 
perpetual, royalty-free licenses to products for which it currently 
must pay royalties, and (ii) ownership of the international rights to 
the Miller brands of beer.
    To further help preserve and promote competition in the U.S. beer 
industry, the proposed Final Judgment (i) imposes certain restrictions 
on ABI's distribution practices and ownership of distributors, and (ii) 
requires ABI to provide the United States with notice of future 
acquisitions, including acquisitions of beer distributors and craft 
brewers, prior to their consummation. Among other things, the proposed 
Final Judgment prohibits ABI from:
     Acquiring a distributor if the acquisition would cause 
more than 10% of ABI's beer in the United States to be sold through 
ABI-owned distributors;
     Prohibiting or impeding a distributor that sells ABI's 
beer from using its best efforts to sell, market, advertise, promote, 
or secure retail placement for rivals' beers, including the beers of 
high-end brewers;
     Providing incentives or rewards to a distributor who sells 
ABI's beer based on the percentage of ABI beer the distributor sells as 
compared to the distributor's sales of the beers of ABI's rivals;
     Conditioning any agreement or program with a distributor 
that sells ABI's beer on the fact that it sells ABI's rivals' beer 
outside of the geographic area in which it sells ABI's beer;
     Exercising its rights over distributor management and 
ownership based on a distributor's sales of ABI's rivals' beers;
     Requiring a distributor to report financial information 
associated with the sale of ABI's rivals' beers;
     Requiring that a distributor who sells ABI's beer offer 
its sales force the same incentives for selling ABI's beer when the 
distributor promotes the beers of ABI's rivals with sales incentives; 
and
     Consummating non-reportable acquisitions of beer brewers--
including craft brewers--without providing the United States with 
advance notice and an opportunity to assess the transaction's likely 
competitive effects.

These provisions will help ensure that U.S. beer consumers receive the 
products they want at competitive prices and that ABI is not able to 
disadvantage its rivals in their efforts to compete for consumer 
demand.
    Finally, under the terms of the Hold Separate Stipulation and 
Order, Defendants will take certain steps to ensure that, pending the 
ordered divestiture, MillerCoors will continue to be operated as an 
economically viable, ongoing business concern and that all divestiture 
assets will be preserved and will be independent from, and not 
influenced by, ABI.
    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA. Entry of 
the proposed Final Judgment would terminate this action, except that 
the Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof.

II. Description of the Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction

    ABI is a corporation organized and existing under the laws of 
Belgium, with headquarters in Leuven, Belgium. ABI brews and markets 
more beer sold in the United States than any other company, accounting 
for approximately 47% of beer sales nationally.\2\ ABI owns and 
operates 19 breweries in the United States and over 40 major beer 
brands sold in the United States, including Bud Light (the highest-
selling brand in the United States) and other popular brands, such as 
Budweiser, Busch, Michelob, Natural Light, Stella Artois, Shock Top, 
and Beck's.
---------------------------------------------------------------------------

    \2\ National market shares are based on dollar-sales data from 
IRI, a market research firm, whose data are commonly used by 
industry participants. The shares reflect only off-premise sales. 
ABI accounts for approximately 35% of dollar sales of beer made only 
through grocery stores.
---------------------------------------------------------------------------

    SABMiller is a corporation organized and existing under the laws of 
the United Kingdom, with its headquarters in London, England. In the 
United States, SABMiller operates through its ownership interest in 
MillerCoors. MillerCoors is a limited liability company organized and 
existing under the laws of the State of Delaware, with its principal 
place of business in Chicago, Illinois. MillerCoors is a joint venture 
between SABMiller and Molson Coors Brewing Company (``Molson Coors''). 
SABMiller and Molson Coors have, respectively, a 58% and 42% ownership 
interest in and equal governance rights over MillerCoors.
    MillerCoors is the second-largest brewing company in the United 
States, accounting for 25% of beer sales nationally. MillerCoors owns 
and operates 12 breweries in the United States, and has the sole right 
to produce and sell in the United States more than 40 brands of beer, 
including Coors Light and Miller Lite, the second- and fourth-highest 
selling beer brands in the United States. MillerCoors also has the 
right to produce and sell in the United States other popular brands of 
beer, such as Miller Genuine Draft, Coors Banquet, and Blue Moon. In 
addition, MillerCoors has the exclusive right to import into and sell 
in the United States certain beer brands owned by SABMiller, including 
Peroni, Grolsch, and Pilsner Urquell.
    At the same time that ABI agreed to acquire complete ownership of 
SABMiller, ABI also agreed to divest to Molson Coors (1) SABMiller's 
equity and ownership stake in MillerCoors; (2) perpetual, royalty-free 
licenses to

[[Page 51472]]

import, manufacture, distribute, market, and sell the Import Products, 
which are SABMiller brands that are imported by MillerCoors for sale in 
the United States; \3\ (3) perpetual, royalty-free licenses to 
manufacture, distribute, market, and sell the Licensed Products, which 
are brands currently manufactured under contract in the United States 
by MillerCoors under royalty-bearing licenses with SABMiller; (4) all 
rights, title, and interests in Miller-Branded Products outside the 
United States; and (5) certain tangible and intangible assets related 
to the manufacture, distribution, marketing, and sale of Miller-Branded 
Products outside of the United States. The transaction between ABI and 
Molson Coors is contingent upon ABI completing its acquisition of 
SABMiller.
---------------------------------------------------------------------------

    \3\ For purposes of this Competitive Impact Statement, the 
United States includes the fifty states of the United States of 
America, the District of Columbia, Puerto Rico, and all United 
States military bases located therein.
---------------------------------------------------------------------------

B. The Competitive Effects of the Transaction on the Market for Beer in 
the United States

1. Relevant Markets
    Beer is a relevant product market under Section 7 of the Clayton 
Act. Beer is usually made from malted cereal grain, flavored with hops, 
and brewed via a fermentation process. Wine, distilled liquor, and 
other alcoholic or non-alcoholic beverages do not substantially 
constrain the prices of beer, and a hypothetical monopolist in the beer 
market could profitably raise prices.
    Beer brewers generally categorize beer into different segments 
based primarily on price. Beers in the United States can generally be 
grouped into three segments: Sub-premium, premium, and high-end.\4\ 
However, beers in different segments--particularly those in adjacent 
segments--can compete with each other under certain circumstances. For 
example, the prices of high-end beers can constrain the prices of 
premium beers because some consumers of premium beers may trade up to 
high-end beers when the prices of premium beers approach the prices of 
high-end beers.
---------------------------------------------------------------------------

    \4\ The high-end segment is composed of imports and craft 
brands. ABI also identifies a ``premium plus'' segment that consists 
largely of American beers that are priced somewhat higher than 
Budweiser and Bud Light. Examples of beers that ABI identifies as 
``premium plus'' beers include Bud Light Lime, Bud Light Platinum, 
Bud Light Lime-a-Rita, and Michelob Ultra.
---------------------------------------------------------------------------

    Most sales of beer in the United States are of premium and sub-
premium brands. The vast majority of premium and sub-premium beer sold 
in the United States is brewed by ABI and MillerCoors, which own most 
of the popular premium and sub-premium brands. But high-end brands--in 
particular, Mexican imports and craft brands--are increasingly gaining 
market share. This market trend is increasing the competition faced by 
ABI and MillerCoors and the choices available to consumers.
    Both national and local geographic markets exist in the beer 
industry. At the local level, demand for beer is driven by the 
locations of the customers who purchase beer, rather than by the 
locations of the breweries that brew it. Beer brewers also make many 
pricing and promotional decisions at the local level, reflecting local 
brand preferences and demand, demographics, and other competitive 
conditions and factors, which can vary significantly from one local 
market to another. This is sustainable in part because arbitrage across 
local markets is unlikely to occur.
    Important competitive decisions, however, are also made at the 
national level. At the national level, large beer companies, such as 
ABI and MillerCoors, make competitive decisions and develop strategies 
regarding product development, marketing, and brand building. Moreover, 
large beer brewers typically create and implement national pricing 
strategies, place a significant portion of beer advertising on national 
television, and compete for national retail accounts.
2. Competitive Effects of Increased Concentration in the Relevant 
Markets
    The beer industry in the United States is highly concentrated and 
would become significantly more so if ABI were allowed to acquire 
SABMiller, including its ownership interest in MillerCoors. As a 
majority owner with equal governance rights over MillerCoors, ABI would 
be able to direct the competitive behavior of MillerCoors, leading to a 
loss of competition between the firms both nationally and in every 
local market in the United States. Although Molson Coors would continue 
to own a minority equity interest in MillerCoors and have equal 
governance rights, Molson Coors' interest in MillerCoors would not 
eliminate the anticompetitive effects that would result from the 
acquisition. After the acquisition, ABI would have the right to appoint 
half of the board members of MillerCoors, who would have the same 
governance rights as other board members over MillerCoors' business. 
Given that ABI would have significant influence over MillerCoors, ABI 
and MillerCoors would be able to coordinate their competitive behavior, 
possibly to the extent where they behaved as a single, profit-
maximizing entity.
    The result would be a combination of the two largest beer brewers 
in the United States, leaving only a fringe of competitors with 
substantially smaller market shares than ABI and MillerCoors. ABI and 
MillerCoors account for more than 70% of beer sold in the United 
States. After the proposed acquisition, ABI would have a commanding 
market share ranging from 37% to 94% in every local U.S. market for 
which reliable data are available.\5\ In 18 local markets, ABI and 
MillerCoors would have a combined share of 70% or more.
---------------------------------------------------------------------------

    \5\ The Complaint identifies 58 metropolitan statistical areas 
(``MSAs''), as defined by IRI, for which reliable data are 
available. The market shares for these MSAs are based on dollar-
sales data from IRI and reflect sales of beer only through grocery 
stores.
---------------------------------------------------------------------------

3. Beer Distribution in the United States
    Effective distribution is important for a brewer to be competitive 
in the U.S. beer industry. Many states require large brewers to use 
independent distributors, and these distributors typically have 
exclusive and perpetual rights to sell the brands they carry within a 
particular territory. Most brewers use distributors to merchandise, 
sell, and deliver beer to retailers. Those retailers are primarily 
grocery stores, large retailers (such as Target and Walmart), 
convenience stores, liquor stores, restaurants, and bars. Retailers, in 
turn, sell beer to consumers.
    ABI beers are distributed both through ABI-owned distributors and 
through distributors that are not owned by ABI but who sell large 
volumes of ABI beer, including the Budweiser and Bud Light brands 
(``ABI-Affiliated Wholesalers''). ABI beer brands account for 
approximately 90% of the volume of the beer sold by ABI-Affiliated 
Wholesalers. In spite of many state laws requiring that beer 
distributors be independent of brewers, ABI exerts considerable 
influence over ABI-Affiliated Wholesalers, in part by requiring them to 
enter into a Wholesaler Equity Agreement (``Equity Agreement'') with 
ABI.
    The Equity Agreement contains a number of provisions that are 
designed to encourage ABI-Affiliated Wholesalers to sell and promote 
ABI's beer brands instead of the beer brands of ABI's competitors. For 
example, the Equity Agreement prohibits an ABI-Affiliated Wholesaler 
from requesting that a bar replace an ABI tap handle with a 
competitor's tap handle or that a retailer replace ABI shelf space with 
a

[[Page 51473]]

competitor's beer. Further, the Equity Agreement prohibits an ABI-
Affiliated Wholesaler from compensating its salespeople for their sales 
of competing beer brands (such as a dollar-per-case incentive) unless 
it provides the same incentives for sales of certain ABI beer brands. 
The expense of extending a per-case sales incentive to the large volume 
of ABI brands effectively limits an ABI-Affiliated Wholesaler's ability 
to promote brands of Third-Party Brewers through targeted sales 
incentives.
    ABI also promotes distributor exclusivity by providing payments to 
ABI-Affiliated Wholesalers based on their ABI ``alignment,'' that is, 
the amount of ABI beer that they sell relative to the beer of ABI's 
competitors. For example, under a program known as the Voluntary 
Anheuser-Busch Incentive for Performance Program, ABI offers ABI-
Affiliated Wholesalers that are 90% or more ``aligned'' a payment for 
each case-equivalent of ABI beer they sell. The size of the payment 
increases based on the ABI-Affiliated Wholesaler's level of alignment. 
Only the sales of very small, local craft beers are excluded from the 
calculation of an ABI-Affiliated Wholesaler's level of alignment. This 
allows ABI-Affiliated Wholesalers to carry small, local craft beers but 
decreases or eliminates the payments to ABI-Affiliated Wholesalers that 
add craft beers that grow above a certain size or expand outside of a 
certain geographic area. Thus, this incentive program has the effect of 
impeding rival craft brewers from growing large enough to have the 
scale to better compete with ABI.
    MillerCoors beers are distributed almost exclusively through 
distributors that are not owned by MillerCoors but who sell large 
volumes of MillerCoors beer (``MillerCoors-Affiliated Wholesalers''). 
MillerCoors brands account for approximately 65% of the volume of the 
beer sold by MillerCoors-Affiliated Wholesalers.
    Other than MillerCoors and ABI, most brewers do not have a 
distribution network affiliated with their brands. Consequently, the 
majority of other brewers' beers are distributed either by the ABI-
Affiliated Wholesaler or the MillerCoors-Affiliated Wholesaler in a 
given geographic area. For example, in 2014, 85% or more of the beer 
sold in the United States was distributed by a Miller-Coors Affiliated 
Wholesaler, an ABI-Affiliated Wholesaler, or a distributor owned by 
ABI.
    Although some brewers use alternative means to sell their beer to 
retailers, their only alternatives to an ABI-Affiliated Wholesaler or 
MillerCoors-Affiliated Wholesaler tend to be considerably smaller and 
significantly less efficient distributors. Indeed, some of these 
alternative distributors are not even primarily focused on selling 
beer. For instance, these distributors may be more focused on selling a 
broad range of wine and liquor while only offering a small selection of 
beers. Moreover, beer distributors who are not affiliated with ABI or 
MillerCoors typically service fewer retail establishments (or exclude 
entire classes of retailers), visit the establishments that they do 
service less frequently, and provide fewer resources (such as financial 
support and sales associates) than the ABI-Affiliated Wholesaler or the 
MillerCoors-Affiliated Wholesaler that operates in the same territory.
    Unlike ABI, MillerCoors does not include in its agreements with 
MillerCoors-Affiliated Wholesalers any provisions that discourage or 
impede the promotion and sales of the brands of Third-Party Brewers. 
There is, however, a practical limit to the number of brands that any 
distributor can effectively carry and promote to its retail accounts. 
As the number of brands carried by a distributor increases, the 
distributor may incur costs to manage the resulting complexities, and 
the distributor may become less focused on promoting the smaller brands 
that it carries. Consequently, the presence of a MillerCoors-Affiliated 
Wholesaler or a small distributor in a market does not eliminate the 
advantages that many independent craft brewers would receive from 
having access to ABI-Affiliated Wholesalers.
4. The Proposed Divestiture Alone Would Not Eliminate the Likely 
Competitive Effects of the Transaction on Beer Distribution
    Even though ABI has proposed to divest SABMiller's interest in 
MillerCoors to Molson Coors, the divestiture to Molson Coors likely 
would not eliminate the anticompetitive effects of the transaction on 
beer distribution, which, as noted above, plays an important role in a 
brewer's ability to effectively compete in the U.S. beer industry.
    Presently, MillerCoors competes against ABI only in the United 
States. Molson Coors, however, competes with ABI in multiple countries 
throughout the world--most significantly in Canada, where ABI and 
Molson Coors are the two largest brewers and together account for a 
large share of beer sales. ABI and Molson Coors also have certain 
cooperative arrangements in Eastern Europe. For example, ABI brews and 
distributes Molson Coors' beers in certain countries while Molson Coors 
provides such services to ABI in other countries. ABI and MillerCoors 
have no comparable business arrangements.
    The change in ownership of MillerCoors--from a joint venture 
between SABMiller and Molson Coors to a wholly owned subsidiary of 
Molson Coors--will increase the number of highly concentrated markets 
across the world in which ABI competes directly against Molson Coors. 
By increasing the number of markets in which ABI and Molson Coors 
compete, the divestiture of SABMiller's interest in MillerCoors to 
Molson Coors could facilitate coordination between ABI and Molson Coors 
in the United States. For example, this multi-market contact could lead 
Molson Coors and ABI to be more accommodating to each other in the 
United States in order to avoid provoking a competitive response 
outside the United States or disrupting their cooperative business 
arrangements in other countries. Coordination could also be facilitated 
by the existing and newly-created cooperative agreements between ABI 
and Molson Coors around the world.
    If the divestiture facilitates coordination between ABI and Molson 
Coors, it would also increase ABI's incentive to limit competition from 
its high-end rivals. This is because competition from high-end rivals 
would become an even more important constraint on the ability of ABI 
and Molson Coors to increase the prices of their beers across all 
segments. As a result, following a divestiture to Molson Coors, ABI may 
have a greater incentive to impede the growth and reduce the 
competitiveness of its high-end rivals by limiting their access to 
effective and efficient distribution. The extent to which craft and 
other brewers in the United States are able to compete with ABI and 
Molson Coors will thus affect the likelihood of the divestiture to 
Molson Coors leading to unilateral or coordinated anticompetitive 
effects.
5. Entry and Expansion
    Neither entry into the national or local beer markets in the United 
States, nor any repositioning of existing brewers, would undo the 
likely anticompetitive harm from ABI's acquisition of SABMiller. Many 
MillerCoors brands compete directly against ABI brands in terms of 
their brand position, reputation, taste profile, well-established 
marketing, acceptance by a wide range of consumers, and robust 
distribution networks. ABI and MillerCoors brands of beer are available 
in almost every establishment in which consumers can purchase or 
consume

[[Page 51474]]

beer. ABI and MillerCoors also compete directly on a national level for 
advertising and promotions, such as sports sponsorships. Any entrant 
would face enormous costs attempting to replicate these assets and 
would, at best, take many years to succeed.
    Building nationally-recognized and accepted brands, which retailers 
will support with feature and display activity, is difficult, 
expensive, and time consuming. Although new beer breweries open 
frequently, new brewers face significant barriers to achieving 
efficient scale. In addition, ABI's distribution practices hinder new 
entrants from accessing effective and efficient distribution, which 
prevents them from growing to a scale that allows significant economies 
in production. While consumers have undoubtedly benefited from the 
launch of many individual craft and specialty beers in the United 
States, the multiplicity of such brands does not replace the nature, 
scale, and scope of the existing competition between ABI and 
MillerCoors, which would be eliminated by the proposed transaction.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment contains a remedy designed to eliminate 
the likely anticompetitive effects of the acquisition in the national 
market for beer in the United States and local markets throughout the 
United States. The proposed Final Judgment contemplates that the 
divested assets will be sold to Molson Coors, which, on November 11, 
2015, entered into an agreement with ABI to acquire the divested 
assets. If the divestiture to Molson Coors should fail to close, ABI 
would be required to make the same divestiture to another acquirer 
acceptable to the United States, in its sole discretion, for the 
purpose of enabling that alternative acquirer to assume SABMiller's 
role with respect to the ownership and governance of MillerCoors.\6\
---------------------------------------------------------------------------

    \6\ The remainder of the explanation of the proposed Final 
Judgment refers to the proposed acquirer as Molson Coors. If Molson 
Coors does not acquire the Divestiture Assets, the proposed Final 
Judgment will apply to another Acquirer in the same manner as 
described with respect to Molson Coors.
---------------------------------------------------------------------------

    The divestiture required by the proposed Final Judgment will 
preserve MillerCoors as an independent and economically viable 
competitor and will strengthen MillerCoors by giving it valuable rights 
that it does not currently have. The divestiture includes assets that 
are necessary to preserve or enhance the viability of MillerCoors as a 
competitor in the national and local beer markets in the United States. 
Those assets include SABMiller's full interest in MillerCoors and the 
intangible assets necessary to permit Molson Coors to brew and import 
the Import Products for sale in the United States. The proposed 
divestiture also gives Molson Coors full rights to the Miller-Branded 
Products, as well as the tangible and intangible assets that are 
primarily related to the manufacture, distribution, marketing, and sale 
of the Miller-Branded Products outside the United States.
    The distribution-related relief seeks to prohibit ABI from 
rewarding, penalizing, or otherwise conditioning its relationships with 
ABI-Affiliated Wholesalers, or any employees or agents of the 
wholesalers, based on the wholesalers' sale, marketing, advertising, 
promotion, or retail placement of rivals' beers--including ABI's high-
end rivals. For example, the remedy seeks to prevent ABI from using its 
relationship with ABI-Affiliated Wholesalers to disadvantage, or 
maintain or erect barriers to scale for, ABI's high-end rivals. Under 
the proposed Final Judgment, ABI-Affiliated Wholesalers should be free 
to make independent decisions regarding their sale of ABI's high-end 
rivals' beers. By removing obstacles to effective distribution, 
competition in the high-end beer segment can continue to serve as an 
important constraint on the ability of ABI and MillerCoors (Molson 
Coors) to raise--either unilaterally or through coordination--beer 
prices in the United States.
    In short, the remedy seeks to preserve and promote competition in 
the U.S. beer industry by maintaining MillerCoors as an independent 
competitor and by reducing the influence of ABI on the distribution of 
beer in the United States. In addition, the proposed Final Judgment 
also provides for supervision by this Court and the United States of 
the transition services and supply arrangements between ABI and Molson 
Coors. Those arrangements will allow Molson Coors time to establish the 
ability to brew the Import Products and Miller-Branded Products 
independently of ABI. The remedy also provides for supervision of ABI's 
compliance with the restrictions on its distribution practices.

A. The Divestiture

    The proposed Final Judgment requires ABI, within 90 days after 
entry of the Hold Separate Stipulation and Order by the Court, to 
divest (1) SABMiller's equity and ownership stake in MillerCoors; (2) 
all raw material inventory exclusively related to the manufacture, 
distribution, marketing, and sale of Miller-Branded Products outside of 
the United States; (3) all other tangible and intangible assets of 
SABMiller and its subsidiaries (other than MillerCoors and its 
subsidiaries) that are primarily related to the Miller-Branded 
Products, both inside and outside the United States; and (4) perpetual, 
fully paid-up, royalty-free licenses to any intellectual property and 
any other intangible assets required to permit the acquirer of the 
divested assets to manufacture, import, distribute, market, or sell the 
Import Products and Licensed Products in the United States. Molson 
Coors will also have a one-year period in which to negotiate to hire 
employees of SABMiller whose primary responsibility is the production, 
manufacture, importation, distribution, marketing, or sale of Miller-
Branded Products.
    The proposed divestiture will permit MillerCoors to continue as a 
viable competitor in the relevant beer markets independent of ABI. 
After the divestiture, Molson Coors will own all assets in the United 
States that are used in the production, marketing, and sale of the 
MillerCoors brands of beer that are brewed in the United States. Under 
the proposed divestiture, Molson Coors will also obtain the 
international rights to brew and export the Miller-Branded Products. 
With respect to two beer brands, Redd's and Foster's, MillerCoors now 
produces those brands for sale in the United States under royalty-
bearing licenses from SABMiller. The divestiture provides that Molson 
Coors will have perpetual, fully paid-up, royalty-free licenses and any 
other intangible assets required to manufacture and sell those brands 
in the United States. MillerCoors now has the right to import and sell 
in the United States certain SABMiller brands that are brewed 
internationally. The proposed divestiture provides that Molson Coors 
will have perpetual, royalty-free licenses to brew those brands and 
import them into the United States.
    The European Commission also investigated the effects of ABI's 
proposed acquisition of SABMiller. To resolve concerns raised by the 
European Commission, ABI is divesting essentially all of the European 
business that it would have acquired from SABMiller. ABI has already 
agreed to sell to Asahi Group, a Japanese brewer, the Peroni, Grolsch, 
and Meantime brands of beer. ABI has also agreed to divest SABMiller's 
business in the Czech Republic, Hungary, Poland, and Romania, including 
the Pilsner Urquell brand of beer. The proposed Final

[[Page 51475]]

Judgment, however, requires that ABI divest the U.S. rights to the 
Import Brands--including Peroni, Grolsch, and Pilsner Urquell--to 
Molson Coors, notwithstanding the divestiture of the ex-U.S. rights to 
those brands to other buyers.

B. Transition Services and Interim Supply Agreements

    Sections IV.I and IV.J of the Final Judgment require ABI to enter 
into one or more transition services agreements and interim supply 
agreements with Molson Coors. The transition services agreements 
require ABI to provide Molson Coors with services with respect to the 
development, production, servicing, importing, distributing, marketing, 
and selling of Miller-Branded Products outside of the United States. 
The transition services agreements will allow Molson Coors to operate 
the business of selling Miller-Branded Products outside of the United 
States in a manner that is consistent with SABMiller's current 
operation of that business. The interim supply agreements will require 
ABI to supply beer such that Molson Coors can continue to import 
SABMiller brands of beer to the United States and can operate the 
Miller International Business.
    The transition services and interim supply agreements are time-
limited to assure that Molson Coors will become fully independent of 
ABI with respect to the supply of the Import Products and the Miller 
International Business as soon as practicable. As such, in conjunction 
with the nondisclosure of information provisions in the proposed Final 
Judgment, the terms of the transition services and interim supply 
agreements are intended to prevent the vertical supply arrangements 
from causing competitive harm in the near term. The proposed Final 
Judgment subjects these agreements, including any extensions, to 
monitoring by a trustee appointed by the United States and requires 
that the agreements be approved by the United States. Section V.C of 
the proposed Final Judgment further provides that if ABI and Molson 
Coors enter any new agreements with each other with respect to the 
brewing, packaging, production, marketing, importing, distribution, or 
sale of beer in the United States, ABI must notify the United States of 
the new agreements at least 60 calendar days in advance of such 
agreements becoming effective, and the United States must approve the 
agreements. To the extent that ABI has divested the worldwide rights to 
a brand, however, the provisions of the proposed Final Judgment 
relating to transition services and interim supply agreements do not 
apply to arrangements, if any, between Molson Coors and the new owner 
of the brand outside of the United States.

C. Limits on ABI's Distribution Practices

    Section V.A of the proposed Final Judgment requires ABI and 
SABMiller to agree--and for ABI to further require Molson Coors to 
agree--not to cite the transaction or the required divestiture as a 
basis for modifying, renegotiating, or terminating any contract with 
any Distributor. This language prevents ABI, SABMiller, and Molson 
Coors from claiming that either the transaction or the divestiture is a 
change of ownership or control that would otherwise enable ABI or 
Molson Coors to make changes to their distribution contracts, 
potentially limiting their rival brewers' path to market.
    Section V.B prevents ABI from acquiring any equity interests in, or 
ownership or control of the assets of, a Distributor if such 
acquisition would transform the Distributor into an ABI-Owned 
Distributor, and if more than 10% of ABI's beer sold in the United 
States, measured by volume, would be sold through ABI-Owned 
Distributors after such acquisition. The United States' investigation 
revealed that ABI-Owned Distributors typically distribute only brands 
owned by or affiliated with ABI, and that ABI-Owned Distributors 
currently sell approximately 9% of ABI's beer in the United States. 
This provision limits ABI's ability to acquire Distributors and then 
cause the Distributors to cease to promote or to expel rival brands 
from the Distributors' portfolios--thus preventing or impeding a rival 
from selling its beer through a Distributor or forcing the rival to 
find a different and potentially less effective path to market.
    Section V.D prohibits ABI from instituting or continuing any 
practices or programs that impede or disincentivize ABI-Affiliated 
Wholesalers from selling, marketing, advertising, promoting, or 
maximizing the retail placement of the beers of Third-Party Brewers,\7\ 
including the beers of high-end brewers.\8\ In particular, Section V.D 
precludes ABI from, among other things:
---------------------------------------------------------------------------

    \7\ Third-Party Brewers include any brewer, contract-brewer, or 
importer of beer for sale in the United States other than ABI, 
SABMiller, Molson Coors, or MillerCoors.
    \8\ In the proposed Final Judgment, ``Beer'' includes not only 
products made from malted barley, but also flavored malt beverages, 
alcoholic root beers, and hard ciders. This definition is necessary 
because ABI-Affiliated Wholesalers who sell a Third-Party Brewer's 
beer typically also sell any flavored malt beverages, alcoholic root 
beers, and hard ciders made by the Third-Party Brewer.
---------------------------------------------------------------------------

     Conditioning the availability of ABI's beer to an ABI-
Affiliated Wholesaler on the wholesaler's sales, marketing, 
advertising, promotion, or retail placement of Third-Party Brewers' 
beers;
     Conditioning the prices, services, product support, 
rebates, discounts, buy backs, or other terms and conditions of sale of 
ABI's beer that are offered to an ABI-Affiliated Wholesaler based on 
its sales, marketing, advertising, promotion, or retail placement of 
Third-Party Brewers' beers;
     Conditioning any agreement or program with an ABI-
Affiliated Wholesaler on the fact that it sells Third-Party Brewers' 
beers outside of the geographic area in which it sells ABI beer;
     Requiring an ABI-Affiliated Wholesaler to offer any 
incentive for selling ABI beer in connection with or in response to any 
incentive that the wholesaler offers for selling Third-Party Brewers' 
beers; and
     Preventing an ABI-Affiliated Wholesaler from using best 
efforts to sell, market, advertise, or promote any Third-Party Brewer's 
beers, which may be defined as efforts designed to achieve and maintain 
the highest practicable sales volume and retail placement of the Third 
Party Brewer's beers in a geographic area.

    In sum, Section V.D seeks to ensure that ABI cannot use 
distribution-related practices and incentives to prevent or limit 
Third-Party Brewers from securing the distribution necessary to 
effectively compete with ABI. This is especially important with respect 
to brewers of high-end beers, which, as detailed above and in the 
Complaint, have served as an important constraint on ABI's ability to 
raise prices of its beers.
    It should be noted, however, that the proposed Final Judgment--
including Section V.D--does not prevent ABI from requiring that an ABI-
Affiliated Wholesaler use its best efforts to sell, market, advertise, 
or promote ABI's beers. The proposed Final Judgment also does not 
prohibit ABI from conditioning incentives, programs, or contractual 
terms based on an ABI-Affiliated Wholesaler's volume of sales of ABI 
beer,\9\ the retail placement of ABI beer, or ABI's percentage of beer 
sales in a geographic area, provided that any such incentives, 
programs, or

[[Page 51476]]

contractual terms do not require or encourage an ABI-Affiliated 
Wholesaler to provide less than best efforts to the sale, marketing, 
advertising, retail placement, or promotion of Third-Party Brewers' 
beers or to stop distributing Third-Party Brewers' beers.
---------------------------------------------------------------------------

    \9\ ABI, however, may not define the percentage of its beer 
sales in a geographic area by reference to or derived from 
information obtained from ABI-Affiliated Wholesalers concerning 
their sales of any Third-Party Brewer's beers.
---------------------------------------------------------------------------

    The proposed Final Judgment also does not prevent ABI from 
requiring an ABI-Affiliated Wholesaler to allocate to ABI's beers a 
proportion of the ABI-Affiliated Wholesaler's annual spending on beer 
promotions and incentives as long as the allocation does not exceed the 
proportion of revenues that ABI's beers constituted in the ABI-
Affiliated Wholesaler's overall revenue for beer sales in the preceding 
year. The proposed Final Judgment permits this practice because, in any 
given geographic area, the ABI-Affiliated Wholesaler provides the 
exclusive path to market for ABI's beers, and therefore ABI may be 
reluctant to invest in its distributors without some assurance that 
those investments will not be used primarily to benefit its rivals. ABI 
therefore may require an ABI-Affiliated Wholesaler to promote ABI's 
beers in proportion to the revenues it earns on ABI's beers.
    The proposed Final Judgment does not prohibit ABI from taking the 
above actions, because such actions can be undertaken in a way that 
does not undermine the proposed Final Judgment's objective of ensuring 
that Third-Party Brewers have access to the distribution networks 
necessary to effectively compete with ABI and meet consumer demand. The 
proposed Final Judgment is not designed to prevent ABI from competing. 
Rather, it is designed to ensure that Third-Party Brewers whose beer is 
sold by ABI-Affiliated Wholesalers have the opportunity to compete with 
ABI on a level playing field--not on a playing field in which ABI has 
used its influence over the distributor to favor ABI's beers at the 
expense of other beers in the distributor's portfolio.
    The proposed Final Judgment contains provisions designed to ensure 
that ABI-Affiliated Wholesalers are free to carry and promote rival 
brands without concern that ABI will use its control over management 
and ownership changes to punish the wholesaler. Section V.E prohibits 
ABI from disapproving an ABI-Affiliated Wholesaler's selection of its 
own general manager, or a successor general manager, based on the ABI-
Affiliated Wholesaler's sales, marketing, advertising, promotion, or 
retail placement of a Third-Party Brewer's beer. Similarly, Section V.F 
requires that when ABI exercises any right related to the transfer of 
control, ownership, or equity in any Distributor to any other 
Distributor, ABI shall not give weight to or base any decision upon 
either Distributor's business relationship with a Third-Party Brewer--
including, but not limited to, such Distributor's sales, marketing, 
advertising, promotion, or retail placement of a Third-Party Brewer's 
beer. These provisions are intended to prevent ABI from using its 
rights over management or ownership changes to promote alignment by 
selecting new owners because they have demonstrated a willingness not 
to carry or promote rival brands.
    Section V.G prevents ABI from requesting or requiring an ABI-
Affiliated Wholesaler to report to ABI the wholesaler's revenues, 
profits, margins, costs, sales, volumes, or other financial information 
associated with the purchase, sale, or distribution of a Third-Party 
Brewer's beer. ABI, however, is not prohibited from requesting the 
reporting of general financial information by an ABI-Affiliated 
Wholesaler to assess the overall financial condition and financial 
viability of such wholesaler, the percentage of total beer revenues 
received by the wholesaler associated with ABI's beer, or from 
conducting ordinary course due diligence in connection with any 
potential acquisition of an ABI-Affiliated Wholesaler.
    Section V.I directs ABI to notify ABI-Affiliated Wholesalers of the 
changes to ABI's programs or agreements required by the proposed Final 
Judgment and the ABI-Affiliated Wholesalers' rights to bring to the 
attention of the Monitoring Trustee or the United States any actions by 
ABI which the distributor believes may violate Section V of the 
proposed Final Judgment. ABI must also provide ABI-Affiliated 
Wholesalers with a copy of the proposed Final Judgment. Further, under 
Section V.H, ABI may not discriminate against, penalize, or retaliate 
against a Distributor that brings to the attention of the Monitoring 
Trustee or the United States a potential violation by ABI of Section V 
of the Final Judgment.

D. Divestiture Trustee

    In the event that ABI does not accomplish the divestiture as 
prescribed in the proposed Final Judgment, Section VI provides that, 
upon application of the United States, the Court will appoint a 
Divestiture Trustee selected by the United States to complete the 
divestiture. If a Divestiture Trustee is appointed, the proposed Final 
Judgment provides that ABI will pay all costs and expenses of the 
Divestiture Trustee. After his or her appointment becomes effective, 
the Divestiture Trustee will file monthly reports with the Court and 
the United States setting forth his or her efforts to accomplish the 
divestiture.

E. Monitoring Trustee

    Section VIII of the proposed Final Judgment permits the appointment 
of a Monitoring Trustee by the United States in its sole discretion. 
The United States intends to appoint a Monitoring Trustee and to seek 
the Court's approval of such appointment. The Monitoring Trustee will 
ensure that Defendants expeditiously comply with all of their 
obligations and perform all of their responsibilities under the 
proposed Final Judgment and the Hold Separate Stipulation and Order; 
that the Divestiture Assets remain economically viable, competitive, 
and ongoing assets; and that competition in the sale of beer in the 
United States and in all local markets within the United States is 
maintained. The Monitoring Trustee will have the power and authority to 
monitor Defendants' compliance with the terms of the proposed Final 
Judgment and attendant interim supply and transition services 
agreements. The Monitoring Trustee will also have the authority to 
investigate complaints that ABI has violated the restrictions related 
to its distribution practices. The Monitoring Trustee will have access 
to all personnel, books, records, and information necessary to monitor 
Defendants' compliance with the proposed Final Judgment, and will serve 
at the cost and expense of ABI. The Monitoring Trustee will file 
reports every 90 days with the United States and, as appropriate, the 
Court setting forth Defendants' efforts to comply with their 
obligations under the proposed Final Judgment and the Hold Separate 
Stipulation and Order.

F. Hold Separate Stipulation and Order Provisions

    Defendants have entered into the Hold Separate Stipulation and 
Order attached as an exhibit to the Explanation of Consent Decree 
Procedures, which was filed simultaneously with the Court, to ensure 
that, pending the divestiture, the Divestiture Assets are maintained as 
an ongoing, economically viable, and active business. The Hold Separate 
Stipulation and Order ensures that the Divestiture Assets are preserved 
and maintained in a condition that allows the divestiture to be 
effective.
    The Hold Separate Stipulation and Order requires that the 
Defendants take all steps that are within their power and

[[Page 51477]]

consistent with the agreements that govern the operations of 
MillerCoors to ensure that MillerCoors will be maintained as a 
completely independent competitor in the brewing and sale of beer in 
the same manner that it is today. Moreover, SABMiller and ABI will not 
prevent or interfere with MillerCoors' achieving its ordinary course, 
previously agreed upon business plan and budget.
    The Hold Separate Stipulation and Order further requires the 
Defendants to maintain and operate the Import Products and business of 
selling Miller-Branded Products outside of the United States--which are 
not today standalone businesses--in the same manner as they are 
currently operated. Defendants are required to use all reasonable 
efforts to achieve the sales and revenues targets for the Import 
Products and Miller-Branded Products in accordance with previously 
agreed upon business plans and budgets and are prohibited from sharing 
any competitively sensitive information regarding these products with 
any employee that is not currently involved in their operations or does 
not have a reasonable need to know such information.

G. Notification Provisions

    Section XII of the proposed Final Judgment requires ABI to notify 
the United States in advance of executing certain transactions that 
would not otherwise be reportable under the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended (the ``HSR Act''). The 
transactions covered by these provisions include the acquisition or 
license of any interest in non-ABI beer brewing or distribution assets 
or brands, excluding acquisitions of: (1) Assets that do not generate 
at least $7.5 million in annual gross revenue from beer sold for resale 
in the United States; (2) distribution licenses that do not generate at 
least $3 million in annual gross revenue in the United States; and (3) 
beer distributors that do not generate at least $3 million in annual 
gross revenue in the United States. This provision significantly 
broadens ABI's pre-merger reporting requirements because the $3 million 
and $7.5 million threshold amounts are significantly less than the HSR 
Act's ``size of the transaction'' reporting threshold.
    Section XII will provide the United States with advance notice of, 
and an opportunity to evaluate, ABI's acquisition of both beer 
distributors and craft brewers. Notification of distributor 
acquisitions allows the United States to evaluate whether ABI's 
acquisition of a distributor implicates the prohibitions in Section V 
or is otherwise likely to substantially lessen competition by hindering 
the effective distribution of the beers of ABI's rivals. Notification 
of brewer acquisitions allows the United States to evaluate any 
acquisition by ABI of, among other things, craft breweries. ABI has 
acquired multiple craft breweries over the past several years, some of 
which were not reportable under the HSR Act. Acquisitions of this 
nature, individually or collectively, have the potential to 
substantially lessen competition, and the proposed Final Judgment gives 
the United States an opportunity to evaluate such transactions in 
advance of their closing even if the purchase price is below the HSR 
Act's thresholds.
    The proposed Final Judgment requires ABI to provide such 
notification to the Antitrust Division of the United States Department 
of Justice (the ``Antitrust Division'') in the same format as, and in 
accordance with the instructions relating to, the Notification and 
Report Form set forth in the Appendix to Part 803 of Title 16 of the 
Code of Federal Regulations, as amended. ABI must provide such 
notification at least 30 calendar days prior to acquiring any such 
interest. If within the 30-day period after notification the Antitrust 
Division makes a written request for additional information, ABI shall 
be precluded from consummating the proposed transaction or agreement 
until 30 calendar days after submitting all requested additional 
information. Early termination of the waiting periods in this paragraph 
may be requested and, where appropriate, granted in the same manner as 
is applicable under the requirements and provisions of the HSR Act and 
rules promulgated thereunder.

H. Nondisclosure of Information

    Section XIII of the proposed Final Judgment requires Defendants to 
implement and maintain procedures to prevent the disclosure of the 
confidential commercial information of MillerCoors and Molson Coors by 
Defendants to any of Defendants' affiliates who are involved in the 
marketing, distribution, or sale of beer in the United States. Within 
10 days of the Court approving the Hold Separate Stipulation and Order 
described above, Defendants must submit to the United States their 
planned procedures to effect compliance with their nondisclosure 
obligations. Additionally, Defendants must provide a briefing as to the 
obligations required under Section XIII of the proposed Final Judgment 
to certain of Defendants' officers and employees who will (i) receive 
the confidential commercial information of MillerCoors or Molson Coors; 
(ii) be responsible for the transition services and interim supply 
agreements described above; or (iii) be responsible for making 
decisions regarding ABI's relationships with, agreements with, or 
policies regarding distributors. This provision ensures that Defendants 
cannot improperly use any confidential information that they receive 
from Molson Coors or from SABMiller concerning MillerCoors in ways that 
would harm competition in the U.S. beer industry.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damages action. 
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
16(a), the proposed Final Judgment has no prima facie effect in any 
subsequent lawsuit that may be brought against Defendants.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least 60 days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment. Any person who wishes to comment should do so within 60 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register, or the last date of publication in a newspaper of 
the summary of this Competitive Impact Statement, whichever is later. 
All comments received during this period will be considered by the 
United States, which remains free to withdraw its consent to the 
proposed Final Judgment at any time prior to the Court's entry of 
judgment. The comments and the response of the United States will be 
filed with the Court. In addition, comments will be posted on the 
Antitrust Division's internet Web site

[[Page 51478]]

and, in certain circumstances, published in the Federal Register.
    Written comments should be submitted to: Peter J. Mucchetti, Chief, 
Litigation I Section, Antitrust Division, United States Department of 
Justice, 450 Fifth Street NW., Suite 4100, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any necessary or appropriate modification, interpretation, or 
enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, seeking preliminary and permanent injunctions against 
Defendants' proposed transaction and proceeding to a full trial on the 
merits. The United States is satisfied, however, that the relief in the 
proposed Final Judgment will preserve competition in the national 
market and in each local market for beer in the United States. Thus, 
the proposed Final Judgment will protect competition as effectively as, 
and will achieve all or substantially all of the relief the United 
States would have obtained through, litigation, but avoids the time, 
expense, and uncertainty of a full trial on the merits.

VII. Standard of Review Under the APPA for the Proposed Final Judgment

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a 60-day comment period, after which the court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. 16(e)(1). In making such a determination, 
the court, in accordance with the statute as amended in 2004, is 
required to consider:

    (A) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors, 
the court's inquiry is necessarily a limited one as the government is 
entitled to ``broad discretion to settle with the defendant within the 
reaches of the public interest.'' United States v. Microsoft Corp., 56 
F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC 
Commc'ns, Inc., 489 F. Supp. 2d 1, 15-17 (D.D.C. 2007) (assessing 
public interest standard under the Tunney Act); United States v. U.S. 
Airways Group, Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining 
that the ``court's inquiry is limited'' in Tunney Act settlements); 
United States v. InBev N.V./S.A., No. 08-1965 (JR), 2009-2 Trade Cas. 
(CCH) ] 76,736, 2009 U.S. Dist. LEXIS 84787, at *3, (D.D.C. Aug. 11, 
2009) (noting that the court's review of a consent judgment is limited 
and only inquires ``into whether the government's determination that 
the proposed remedies will cure the antitrust violations alleged in the 
complaint was reasonable, and whether the mechanisms to enforce the 
final judgment are clear and manageable'').\10\
---------------------------------------------------------------------------

    \10\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for courts to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns, 
489 F. Supp. 2d at 11 (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the APPA a court considers, among other things, 
the relationship between the remedy secured and the specific 
allegations set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3. Courts have held that:

    [t]he balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\11\ In 
determining whether a proposed settlement is in the public interest, a 
court ``must accord deference to the government's predictions about the 
efficacy of its remedies, and may not require that the remedies 
perfectly match the alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d 
at 17; see also U.S. Airways, 38 F. Supp. 3d at 75 (noting that a court 
should not reject the proposed remedies because it believes others are 
preferable); Microsoft, 56 F.3d at 1461 (noting the need for courts to 
be ``deferential to the government's predictions as to the effect of 
the proposed remedies''); United States v. Archer-Daniels-Midland Co., 
272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant 
due respect to the United States' prediction as to the effect of 
proposed remedies, its perception of the market structure, and its 
views of the nature of the case).
---------------------------------------------------------------------------

    \11\ Cf. BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the 
court is constrained to ``look at the overall picture not 
hypercritically, nor with a microscope, but with an artist's 
reducing glass''). See generally Microsoft, 56 F.3d at 1461 
(discussing whether ``the remedies [obtained in the decree are] so 
inconsonant with the allegations charged as to fall outside of the 
`reaches of the public interest' '').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[A] proposed decree must be approved 
even if it falls short of the remedy the court would impose on its own, 
as long as it falls within the range of acceptability or is `within the 
reaches of public interest.' '' United States v. Am. Tel. & Tel. Co., 
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United 
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd 
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also U.S. 
Airways, 38 F. Supp. 3d at 76 (noting that room must be made for the 
government to grant concessions in the negotiation process for 
settlements (citing Microsoft, 56 F.3d at 1461)); United States v. 
Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving 
the consent decree even though the court would have imposed a

[[Page 51479]]

greater remedy). To meet this standard, the United States ``need only 
provide a factual basis for concluding that the settlements are 
reasonably adequate remedies for the alleged harms.'' SBC Commc'ns, 489 
F. Supp. 2d at 17.
    Moreover, the court's role under the APPA is limited to reviewing 
the remedy in relationship to the violations that the United States has 
alleged in its complaint, and does not authorize the court to 
``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways, 
38 F. Supp. 3d at 75 (noting that the court must simply determine 
whether there is a factual foundation for the government's decisions 
such that its conclusions regarding the proposed settlements are 
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``[T]he 
`public interest' is not to be measured by comparing the violations 
alleged in the complaint against those the court believes could have, 
or even should have, been alleged.''). Because the ``court's authority 
to review the decree depends entirely on the government's exercising 
its prosecutorial discretion by bringing a case in the first place,'' 
it follows that ``the court is only authorized to review the decree 
itself,'' and not to ``effectively redraft the complaint'' to inquire 
into other matters that the United States did not pursue. Microsoft, 56 
F.3d at 1459-60. As a court in this district confirmed in SBC 
Communications, courts ``cannot look beyond the complaint in making the 
public interest determination unless the complaint is drafted so 
narrowly as to make a mockery of judicial power.'' 489 F. Supp. 2d at 
15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding the unambiguous instruction that ``[n]othing in 
this section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d 
at 76 (indicating that a court is not required to hold an evidentiary 
hearing or to permit intervenors as part of its review under the Tunney 
Act). The language wrote into the statute what Congress intended when 
it enacted the Tunney Act in 1974, as Senator Tunney explained: ``[t]he 
court is nowhere compelled to go to trial or to engage in extended 
proceedings which might have the effect of vitiating the benefits of 
prompt and less costly settlement through the consent decree process.'' 
119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney). Rather, the 
procedure for the public interest determination is left to the 
discretion of the court, with the recognition that the court's ``scope 
of review remains sharply proscribed by precedent and the nature of 
Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11.\12\ A 
court can make its public interest determination based on the 
competitive impact statement and response to public comments alone. 
U.S. Airways, 38 F. Supp. 3d at 76.
---------------------------------------------------------------------------

    \12\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., No. 73-CV-681-W-1, 1977-1 
Trade Cas. (CCH) ] 61,508, at 71,980, *22 (W.D. Mo. 1977) (``Absent 
a showing of corrupt failure of the government to discharge its 
duty, the Court, in making its public interest finding, should . . . 
carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, at 6 (1973) (``Where the 
public interest can be meaningfully evaluated simply on the basis of 
briefs and oral arguments, that is the approach that should be 
utilized.'').
---------------------------------------------------------------------------

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.
Dated: July 20, 2016
Respectfully Submitted,
/s/______
Michelle R. Seltzer (D.C. Bar #475482), Assistant Chief, Litigation I, 
Antitrust Division, U.S. Department of Justice, 450 Fifth Street NW., 
Suite 4100, Washington, DC 20530, Telephone: (202) 353-3865, Email: 
michelle.seltzer@usdoj.gov.

Attorney for the United States

United States District Court for the District of Columbia

UNITED STATES OF AMERICA, Plaintiff, v. ANHEUSER-BUSCH InBEV SA/NV, and 
SABMILLER plc, Defendants.

CASE NO.: 1:16-cv-01483

JUDGE: Emmet G. Sullivan

FILED: 07/20/2016

Proposed Final Judgment

    Whereas, Plaintiff, United States of America (``United States'') 
filed its Complaint on July 20, 2016, the United States and Defendants, 
by their respective attorneys, have consented to entry of this Final 
Judgment without trial or adjudication of any issue of fact or law, and 
without this Final Judgment constituting any evidence against or 
admission by any party regarding any issue of fact or law;
    And whereas, Defendants agree to be bound by the provisions of the 
Final Judgment pending its approval by the Court;
    And whereas, the essence of this Final Judgment is the prompt 
divestiture of certain rights and assets to assure that competition is 
not substantially lessened;
    And whereas, this Final Judgment requires Defendant ABI to make 
certain divestitures for the purpose of remedying the loss of 
competition alleged in the Complaint;
    And whereas, Plaintiff requires Defendants to agree to undertake 
certain actions and refrain from certain conduct for the purposes of 
remedying the loss of competition alleged in the Complaint;
    And whereas, Defendants have represented to the United States that 
the divestitures required below can (after the Completion of the 
Transaction) and will be made, and that the actions and conduct 
restrictions can and will be undertaken, and that Defendants will later 
raise no claim of hardship or difficulty as grounds for asking the 
Court to modify any of the provisions contained below;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is ordered, adjudged, and decreed:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of this action 
and each of the parties. The Complaint states a claim upon which relief 
may be granted against Defendants under Section 7 of the Clayton Act, 
as amended (15 U.S.C. 18).

II. Definitions

    As used in the Final Judgment:
    A. ``ABI'' means Anheuser-Busch InBev SA/NV, its domestic and 
foreign parents, predecessors, divisions, subsidiaries, affiliates, 
partnerships, successors in interest (including any successor in 
interest to Anheuser-Busch InBev SA/NV following the Completion of the 
Transaction), and joint ventures; and all directors, officers, 
employees, agents, and representatives of the foregoing. The terms 
``parent,'' ``subsidiary,'' ``affiliate,'' and ``joint venture'' refer 
to any person in which there is majority (greater than 50%) or total 
ownership or control between the company and any other person.
    B. ``ABI Divested Brand'' means any Import Product divested or sold 
pursuant to commitments offered to the

[[Page 51480]]

European Commission pursuant to its review of the Transaction.
    C. ``ABI-Owned Distributor'' means any Distributor in which ABI 
owns more than 50% of the outstanding equity interests or more than 50% 
of the assets.
    D. ``Acquirer'' means:
    1. Molson Coors; or
    2. an alternative purchaser of the Divestiture Assets selected 
pursuant to the procedures set forth in this Final Judgment.
    E. ``Beer'' means any fermented alcoholic beverage that is (1) 
composed in part of water, a type of malted starch, yeast, and hops or 
other flavoring, and (2) has undergone the process of brewing. As used 
herein, the term ``Beer'' shall also include flavored malt beverages, 
root beers, and ciders.
    F. ``Closing'' means consummation of the divestiture of the 
Divestiture Assets pursuant to the Final Judgment.
    G. ``Completion of the Transaction'' means the completion of the 
Transaction in accordance with its terms.
    H. ``Confidential Information'' means confidential commercial 
information of the Acquirer or MillerCoors that has been obtained from 
the Acquirer, MillerCoors or SABMiller in connection with, or as a 
result of, (1) SABMiller's equity and ownership stake in the 
Divestiture Assets prior to the divestiture of the Divestiture Assets, 
(2) the divestiture of the Divestiture Assets, or (3) the entry into 
and performance under the Interim Supply Agreements, the License 
Agreements, or the Transition Services Agreements, including 
quantities, units, and prices of items ordered or purchased from 
Defendant ABI by the Acquirer, and any other competitively sensitive 
information regarding Defendant ABI's or the Acquirer's performance 
under the Interim Supply Agreements, the License Agreements, or the 
Transition Services Agreements.
    I. ``Covered Entity'' means any Beer brewer, importer, distributor, 
or brand owner (other than ABI) that derives more than $7.5 million in 
annual gross revenue from Beer sold for further resale in the 
Territory, or from license fees generated by such Beer sales.
    J. ``Covered Interest'' means ownership or control of any Beer 
brewing assets of, or any Beer brand assets of, or any Beer 
distribution assets of, or any interest in (including any financial, 
security, loan, equity, intellectual property, or management interest), 
a Covered Entity; except that a Covered Interest shall not include (i) 
a Beer brewery or Beer brand located outside the Territory that does 
not generate at least $7.5 million in annual gross revenue from Beer 
sold for resale in the Territory; (ii) a license to distribute a non-
ABI Beer brand where said distribution license does not generate at 
least $3 million in annual gross revenue in the Territory; or (iii) a 
Beer distributor which does not generate at least $3 million in annual 
gross revenue in the Territory.
    K. ``Defendants'' means ABI and SABMiller, and any successor or 
assignee to all or substantially all of the business or assets of ABI 
or SABMiller, involved in the brewing, development, production, 
servicing, distribution, marketing, or sale of Beer.
    L. ``Distributor'' means a wholesaler in the Territory who acts as 
an intermediary between a brewer or importer of Beer and a retailer of 
Beer.
    M. ``Divestiture Assets'' means:
    1. SABMiller's equity and ownership stake in MillerCoors;
    2. All intellectual property of SABMiller (other than MillerCoors) 
that is primarily related to any Miller-Branded Product, both inside 
and outside the Territory, including, but not limited to: (i) Patents 
(including all reissues, divisions, continuations, continuations-in-
part, reexaminations, supplemental examinations, foreign counterparts, 
substitutions and extensions thereof) and patent applications; (ii) 
copyrights and all applications, registrations, and renewals therefor; 
(iii) trademarks, trade names, service marks, service names, trade 
dress, and other indicia of origin and all applications, registrations, 
and renewals therefor; (iv) technical information, know-how, trade 
secrets, and other proprietary and confidential information, including 
such information relating to inventions, technology, product 
formulations, recipes, production processes, customer lists, and 
marketing databases; and (v) domain names, social media accounts, and 
identifiers and registrations therefor;
    3. All contracts, commitments, agreements, subcontracts, leases, 
subleases, licenses, sublicenses, purchase orders, or other legally 
binding promises or obligations, whether written or oral, to which 
SABMiller (other than MillerCoors) is a party and that are primarily 
related to the manufacture, distribution, marketing, and sale of 
Miller-Branded Products outside of the Territory, in each case other 
than any real estate leases or employment or independent contractor 
agreements;
    4. All raw material inventory exclusively related to the 
manufacture, distribution, marketing, and sale of Miller-Branded 
Products outside of the Territory;
    5. All royalty or equivalent rights of SABMiller in respect of oil 
and gas deposits at the brewery operated by MillerCoors located at Fort 
Worth, Texas;
    6. All research and development activities primarily related to the 
manufacture, distribution, marketing, and sale of Miller-Branded 
Products outside of the Territory;
    7. All licenses, permits, and authorizations issued by any 
governmental organization primarily related to the manufacture, 
distribution, marketing, and sale of Miller-Branded Products outside of 
the Territory, to the extent such licenses, permits, and authorizations 
are capable of assignment or transfer by SABMiller;
    8. All customer lists, contracts, accounts, and credit records 
primarily related to the manufacture, distribution, marketing, and sale 
of Miller-Branded Products outside of the Territory;
    9. All repair, performance, and other records primarily related to 
the manufacture, distribution, marketing, and sale of Miller-Branded 
Products outside of the Territory;
    10. All intangible assets including computer software and related 
documentation, safety procedures for the handling of materials and 
substances, design tools and simulation capability, and research data 
concerning historic and current research and development efforts, 
including, but not limited to, designs of experiments, and the results 
of successful and unsuccessful designs and experiments, primarily 
related to the manufacture, distribution, marketing, and sale of 
Miller-Branded Products outside of the Territory;
    11. All drawings blueprints, designs, design protocols, 
specifications for materials, specifications for parts and devices, 
research data concerning historic and current research and development, 
quality assurance and control procedures, manuals and technical 
information Defendants provide to their own employees, customers, 
suppliers, agents or licensees, and all research data concerning 
historic and current research and development efforts, including, but 
not limited to, designs of experiments, and the results of successful 
and unsuccessful designs and experiments, primarily related to the 
manufacture, distribution, marketing, and sale of Miller-Branded 
Products outside of the Territory;
    12. All other assets primarily related to the manufacture, 
distribution, marketing, and sale of Miller-Branded

[[Page 51481]]

Products outside of the Territory, including finished goods and work-
in-progress, point-of-sale and advertising materials; and
    13. Perpetual, fully paid-up, royalty-free licenses, entered into 
only with the approval of the United States in its sole discretion, to 
any intellectual property and any other intangible assets required to 
permit the Acquirer to manufacture, import, distribute, market, or sell 
the Import Products and the Licensed Products in the Territory.

With respect to clauses (2) through (13) above, Divestiture Assets 
excludes (A) cash and cash equivalents, (B) any accounts receivable, 
(C) subject to the provisions of Section IV.E, any employees or other 
personnel or benefit obligations with respect thereto, (D) any capital 
stock or other equity securities, (E) any real property or interests 
therein (other than certain royalty and equivalent rights in respect of 
oil and gas deposits referenced in clause (5)), (F) any property, plant 
or equipment (or any portion thereof), and (G) any of the items 
enumerated in clauses (2) through (13) above that are owned or 
controlled by any third party and are therefore not capable of 
assignment or transfer by Defendant ABI or Defendant SABMiller.
    N. ``Hold Separate Stipulation and Order'' means the Hold Separate 
Stipulation and Order filed by the parties simultaneously herewith, 
which imposes certain duties on the Defendants with respect to the 
operation of the Divestiture Assets pending the proposed divestitures.
    O. ``Import Products'' means Beer and any other beverages, 
excluding Miller-Branded Products and Licensed Products, imported, 
distributed, marketed, or sold in the Territory, under any of the 
brands or sub-brands set forth on Attachment B hereto and any other 
sub-brands of such brands.
    P. ``Independent Distributor'' means any Distributor that is not an 
ABI-Owned Distributor and that has an exclusive contractual right to 
sell Budweiser or Bud Light branded Beer.
    Q. ``Interim Supply Agreements'' means supply agreements covering 
any Miller-Branded Products or Import Products.
    R. ``License Agreement'' means any agreement to license 
intellectual property pursuant to Section II.M.13 of this Final 
Judgment.
    S. ``Licensed Products'' means Beer and any other beverages 
manufactured, distributed, marketed or sold in the Territory under the 
Foster's or Redd's brands or any sub-brands of such brands.
    T. ``MillerCoors'' means MillerCoors LLC, its divisions, 
subsidiaries, affiliates, partnerships and joint ventures, and all 
directors, officers, employees, agents, and representatives of the 
foregoing. The terms ``subsidiary,'' ``affiliate,'' and ``joint 
venture'' refer to any person in which there is majority (greater than 
50%) or total ownership or control between the company and any other 
person. As used herein, the term ``MillerCoors'' shall not include 
SABMiller or Molson Coors.
    U. ``Miller-Branded Products'' means Beer and any other beverages 
manufactured, distributed, marketed and sold, anywhere in the world, 
under any of the brands or sub-brands set forth on Attachment A hereto 
and any other sub-brands of such brands.
    V. ``Molson Coors'' means Molson Coors Brewing Company, its 
domestic and foreign parents, predecessors, divisions, subsidiaries, 
affiliates, partnerships and joint ventures, and all directors, 
officers, employees, agents, and representatives of the foregoing. The 
terms ``parent,'' ``subsidiary,'' ``affiliate,'' and ``joint venture'' 
refer to any person in which there is majority (greater than 50%) or 
total ownership or control between the company and any other person. As 
used herein, the term ``Molson Coors'' shall not include MillerCoors 
unless and until Molson Coors acquires the Divestiture Assets pursuant 
to Section IV or Section VI of this Final Judgment.
    W. ``SABMiller'' means SABMiller plc, its domestic and foreign 
parents, predecessors, divisions, subsidiaries, affiliates, 
partnerships and joint ventures, and all directors, officers, 
employees, agents, and representatives of the foregoing. The terms 
``parent,'' ``subsidiary,'' ``affiliate,'' and ``joint venture'' refer 
to any person in which there is majority (greater than 50%) or total 
ownership or control between the company and any other person. As used 
herein in connection with any obligation of SABMiller under this Order 
with respect to control of MillerCoors, the term SABMiller means 
SABMiller's non-controlling 58% equity interest and 50% voting rights 
in MillerCoors, which are subject to the MillerCoors LLC Amended and 
Restated Operating Agreement, until the Completion of the Transaction 
pursuant to Section IV or Section VI of this Final Judgment.
    X. ``Territory'' means the fifty states of the United States of 
America, the District of Columbia, Puerto Rico, and all United States 
military bases located in the fifty states of the United States of 
America, the District of Columbia, and Puerto Rico.
    Y. ``Third-Party Brewer'' means any person (other than Defendants 
or the Acquirer, including any subsidiaries or joint ventures of the 
Acquirer), that manufactures, has a third party manufacture, or imports 
Beer for sale in the Territory.
    Z. ``Transaction'' means ABI's proposed acquisition of all of the 
shares of SABMiller pursuant to the Co-Operation Agreement between 
Anheuser-Busch Inbev SA/NV and SABMiller plc, the joint announcement by 
Anheuser-Busch Inbev SA/NV and SABMiller plc in relation to the 
Transaction pursuant to Rule 2.7 of the UK City Code on Takeovers and 
Mergers and the letter agreement related to the Co-Operation Agreement 
between Anheuser-Busch Inbev SA/NV and SABMiller plc, each of which is 
dated November 11, 2015.

III. Applicability

    A. This Final Judgment applies to Defendants, as defined above, and 
all other persons in active concert or participation with any of them 
who receive actual notice of this Final Judgment by personal service or 
otherwise.
    B. If, prior to complying with Sections IV and VI of this Final 
Judgment, Defendants sell or otherwise dispose of all or substantially 
all of their assets or of lesser business units that include the 
Divestiture Assets, they shall require the purchaser to be bound by the 
provisions of this Final Judgment unless such sale or disposition is 
pursuant to commitments offered to the European Commission pursuant to 
its review of the Transaction.

IV. Divestiture

    A. Defendant ABI is ordered and directed, within ninety (90) 
calendar days after the filing of the Hold Separate Stipulation and 
Order, to divest the Divestiture Assets, if the Completion of the 
Transaction has occurred, in a manner consistent with this Final 
Judgment to Molson Coors. The United States, in its sole discretion, 
may agree to one or more extensions of this time period not to exceed 
sixty (60) calendar days in total, and shall notify the Court in such 
circumstances. Defendant ABI agrees to use its best efforts to divest 
the Divestiture Assets as expeditiously as possible. Defendant ABI 
shall perform all duties and provide any and all services required of 
Defendant ABI pursuant to the agreements with the Acquirer to effect 
the divestiture of the Divestiture Assets (including the License 
Agreements, Transition Services Agreements, and Interim Supply 
Agreements).
    B. In the event Molson Coors is not the Acquirer of the Divestiture 
Assets,

[[Page 51482]]

Defendant ABI or any Monitoring Trustee appointed pursuant to Section 
VIII of this Final Judgment shall promptly notify the United States of 
that fact in writing. In such circumstances, within sixty (60) calendar 
days after the United States receives such notice, Defendant ABI shall 
divest the Divestiture Assets in a manner consistent with this Final 
Judgment to an alternative Acquirer(s) acceptable to the United States, 
in its sole discretion. The United States, in its sole discretion, may 
agree to one or more extensions of this time period not to exceed sixty 
(60) calendar days in total, and shall notify the Court in such 
circumstances.
    C. In the event that Molson Coors is not the Acquirer of the 
Divestiture Assets, Defendant ABI promptly shall make known, by usual 
and customary means, the availability of the Divestiture Assets. 
Defendant ABI shall inform any person inquiring about a possible 
purchase of the Divestiture Assets that they are being divested 
pursuant to this Final Judgment and provide that person with a copy of 
this Final Judgment.
    D. Defendants shall offer to furnish to all prospective Acquirers, 
subject to customary confidentiality assurances, all information and 
documents relating to the Divestiture Assets customarily provided in a 
due diligence process except such information or documents subject to 
the attorney-client privilege or work-product doctrine. Defendants 
shall make available such information to the United States at the same 
time that such information is made available to any other person.
    E. For a period beginning on the date of the filing of the Hold 
Separate Stipulation and Order and continuing for not less than one (1) 
year from the date of the divestiture required by Section IV or VI of 
this Final Judgment, to the extent consistent with applicable law, 
Defendants shall provide the Acquirer and the United States information 
relating to the personnel who spend the majority of their time on or 
are otherwise material to the operation of the Divestiture Assets, 
including Defendant SABMiller employees who spend the majority of their 
time on or are otherwise material to the production, manufacture, 
importation, distribution, marketing, or sale of Miller-Branded 
Products outside the Territory, to enable the Acquirer to make offers 
of employment. Beginning as of the date of the filing of the Hold 
Separate Stipulation and Order, Defendants will not interfere with any 
negotiations by the Acquirer to retain, employ, or contract with any 
employee of MillerCoors or any Defendant SABMiller employee whose 
primary responsibility is the production, manufacture, importation, 
distribution, marketing, or sale of Miller-Branded Products.
    F. In the event that Molson Coors is not the Acquirer of the 
Divested Assets, Defendants shall permit prospective Acquirers of the 
Divestiture Assets to have reasonable access to personnel and to make 
inspections of the physical facilities of MillerCoors; access to any 
and all environmental, zoning, and other permit documents and 
information; and access to any and all financial, operational, or other 
documents and information customarily provided as part of a due 
diligence process.
    G. Defendant ABI shall warrant to the Acquirer that the Divestiture 
Assets will be operational on the date of sale to the extent such 
assets were operational on the date the Complaint was filed.
    H. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Assets.
    I. On or before the date of the divestiture pursuant to Section IV 
or Section VI of this Final Judgment, Defendant ABI shall enter into 
one or more transitional services agreements (collectively, the 
``Transition Services Agreements'') with the Acquirer for a period of 
up to one (1) year from the date of the divestiture required by Section 
IV or Section VI of this Final Judgment to provide such services with 
respect to the business of developing, producing, servicing, importing, 
distributing, marketing, and selling Miller-Branded Products outside 
the Territory (the ``Miller International Business'') that are 
reasonably necessary to allow the Acquirer to operate the Miller 
International Business in a manner substantially consistent with the 
operation of such business prior to date of the divestiture of the 
Divestiture Assets. Defendant ABI shall perform all duties and provide 
any and all services required of Defendant ABI under the Transition 
Services Agreements. The Transition Services Agreements, and any 
amendments or modifications thereto, may be entered into only with the 
approval of the United States in its sole discretion. Nothing in the 
foregoing shall apply to any agreements regarding any ABI Divested 
Brands.
    J. On or before the date of the divestiture pursuant to Section IV 
or Section VI of this Final Judgment, Defendant ABI shall enter into 
Interim Supply Agreements with the Acquirer for a period of up to three 
(3) years from the date of the divestiture required by Section IV or 
Section VI of this Final Judgment. Defendant ABI shall perform all 
duties and provide any and all services required of Defendant ABI under 
the Interim Supply Agreements. The Interim Supply Agreements, and any 
amendments, modifications, or extensions of the Interim Supply 
Agreements, may be entered into only with the approval of the United 
States in its sole discretion.
    K. If the Acquirer seeks an extension of any of the Interim Supply 
Agreements covering Import Products, or if Defendant ABI and the 
Acquirer mutually agree to an extension of any of the Interim Supply 
Agreements covering Miller-Branded Products, the Acquirer shall so 
notify the United States in writing at least four (4) months prior to 
the date the Interim Supply Agreement(s) expires. The total term of the 
Interim Supply Agreements and any extension(s) so approved shall not 
exceed five (5) years. Nothing in the foregoing shall apply to any 
agreements regarding any ABI Divested Brands.
    L. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV or Section VI shall include the 
entire Divestiture Assets, and shall be accomplished in such a way as 
to satisfy the United States, in its sole discretion, that the 
Divestiture Assets can and will be used by the Acquirer as part of a 
viable, ongoing business, engaged in brewing, developing, producing, 
distributing, marketing, and selling Beer. The divestiture shall be:
    1. Made to an Acquirer that, in the United States' sole judgment, 
has the intent and capability (including the necessary managerial, 
operational, technical and financial capability) to compete in the 
business of brewing, developing, producing, and selling Beer;
    2. accomplished so as to satisfy the United States, in its sole 
discretion, that none of the terms of the agreement between an Acquirer 
and Defendant ABI gives Defendants the ability unreasonably to raise 
the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise 
to interfere in the ability of the Acquirer to compete effectively; and
    3. made to an Acquirer who agrees to comply with the provisions of 
Section V.A of this Final Judgment, in a manner satisfactory to the 
United States, in its sole discretion.

M. Defendant ABI shall, as soon as possible, but within two (2) 
business days after completion of the relevant event, notify the United 
States of: (1) The effective date of the completion of the Transaction; 
and (2) the effective date of the divestiture of the Divestiture Assets 
to the Acquirer.

[[Page 51483]]

V. Supplemental Relief

    A. Defendants agree, and Defendant ABI shall require any Acquirer 
to agree, that they will not cite the Transaction or the divestiture 
required by Section IV or VI of this Final Judgment as a basis for 
modifying, renegotiating, or terminating any contract with any 
Distributor.
    B. Defendant ABI shall not acquire any equity interests in, or any 
ownership or control of the assets of, a Distributor if (i) such 
acquisition would transform said Distributor into an ABI-Owned 
Distributor, and (ii) as measured on the day of entering into an 
agreement for such acquisition more than ten percent (10%), by volume, 
of Defendant ABI's Beer sold in the Territory would be sold through 
ABI-Owned Distributors after such acquisition. Percentages of volume 
will be calculated using a twelve month trailing average as used in 
Defendant ABI's ordinary course, described in Attachment C.
    C. If Defendants and the Acquirer enter into any new agreement(s) 
with each other with respect to the brewing, packaging, production, 
marketing, importing, distribution, or sale of Beer in the Territory, 
Defendants shall notify the United States of the new agreement(s) at 
least sixty (60) calendar days in advance of such agreement(s) becoming 
effective and such agreement(s) may only be entered into with the 
approval of the United States in its sole discretion.
    D. Defendant ABI shall not unilaterally, or pursuant to the terms 
of any contract or agreement, provide any reward or penalty to, or in 
any other way condition its relationship with, an Independent 
Distributor or any employees or agents of that Independent Distributor 
based upon the amount of sales the Independent Distributor makes of a 
Third-Party Brewer's Beer or the marketing, advertising, promotion, or 
retail placement of such Beer. Actions prohibited by this Sub-section 
include, but are not limited to:
    1. Conditioning the availability of Defendant ABI's Beer on an 
Independent Distributor's sales, marketing, advertising, promotion, or 
retail placement of a Third-Party Brewer's Beer;
    2. Conditioning the prices, services, product support, rebates, 
discounts, buy backs, or other terms and conditions of sale of 
Defendant ABI's Beer that are offered to an Independent Distributor 
based on an Independent Distributor's sales, marketing, advertising, 
promotion, or retail placement of a Third-Party Brewer's Beer;
    3. Conditioning any agreement or program with an Independent 
Distributor on the fact that an Independent Distributor sells a Third-
Party Brewer's Beer outside of the geographic area in which the 
Independent Distributor sells Defendant ABI's Beer;
    4. Requiring an Independent Distributor to offer any incentive for 
selling Defendant ABI's Beer in connection with or in response to any 
incentive that the Independent Distributor offers for selling a Third-
Party Brewer's Beer; and
    5. Preventing an Independent Distributor from using best efforts to 
sell, market, advertise, or promote any Third-Party Brewer's Beer, 
which may be defined as efforts designed to achieve and maintain the 
highest practicable sales volume and retail placement of the Third 
Party Brewer's Beer in a geographic area.

Notwithstanding the foregoing, nothing in this Final Judgment shall 
prohibit Defendant ABI from entering into or enforcing an agreement 
with any Independent Distributor requiring the Independent Distributor 
to use best efforts to sell, market, advertise, or promote Defendant 
ABI's Beer, which may be defined as efforts designed to achieve and 
maintain the highest practicable sales volume and retail placement of 
Defendant ABI's Beer in a geographic area. Defendant ABI may condition 
incentives, programs, or contractual terms based on an Independent 
Distributor's volume of sales of Defendant ABI's Beer, the retail 
placement of Defendant ABI's Beer, or on Defendant ABI's percentage of 
Beer industry sales in a geographic area (such percentage not to be 
defined by reference to or derived from information obtained from 
Independent Distributors concerning their sales of any Third-Party 
Brewer's Beer), provided, however, that any such incentives, programs, 
or contractual terms may not require or encourage an Independent 
Distributor to provide less than best efforts to the sale, marketing, 
advertising, retail placement, or promotion of any Third-Party Brewer's 
Beer or to discontinue the distribution of a Third-Party Brewer's Beer. 
Defendant ABI may require an Independent Distributor to allocate to 
Defendant ABI's Beer a proportion of the Independent Distributor's 
annual spending on Beer promotions and incentives not to exceed the 
proportion of revenues that Defendant ABI's Beer constitutes in the 
Independent Distributor's overall revenue for Beer sales in the 
preceding year.
    E. Defendant ABI shall not disapprove an Independent Distributor's 
selection of a general manager or successor general manager based on 
the Independent Distributor's sales, marketing, advertising, promotion, 
or retail placement of a Third-Party Brewer's Beer.
    F. When exercising any right related to the transfer of control, 
ownership, or equity in any Distributor to any other Distributor, 
Defendant ABI shall not give weight to or base any decision to exercise 
such right upon either Distributor's business relationship with a 
Third-Party Brewer--including, but not limited to, such Distributor's 
sales, marketing, advertising, promotion, or retail placement of a 
Third-Party Brewer's Beer.
    G. Defendant ABI shall not request or require an Independent 
Distributor to report to Defendant ABI, whether in aggregated or 
disaggregated form, the Independent Distributor's revenues, profits, 
margins, costs, sales volumes, or other financial information 
associated with the purchase, sale, or distribution of a Third-Party 
Brewer's Beer. Nothing in the foregoing sentence shall prohibit 
Defendant ABI from requesting the reporting of general financial 
information by an Independent Distributor to assess the overall 
financial condition and financial viability of such Independent 
Distributor, or the percentage of total Beer revenues received by the 
Independent Distributor in the prior year associated with the purchase, 
sale, or distribution of Defendant ABI's Beer distributed by the 
Independent Distributor, provided that the requested information does 
not disclose or enable Defendant ABI to infer the disaggregated 
revenues, profits, margins, costs, or sales volumes associated with the 
Independent Distributor's purchase, sale, or distribution of Third-
Party Brewers' Beer. Nothing herein shall prevent Defendant ABI from 
conducting ordinary course due diligence in connection with any 
potential acquisition of an Independent Distributor.
    H. Defendant ABI shall not discriminate against, penalize, or 
otherwise retaliate against any Distributor because such Distributor 
raises, alleges, or otherwise brings to the attention of the United 
States or the Monitoring Trustee an actual, potential, or perceived 
violation of Section V of this Final Judgment.
    I. Within ten (10) business days after entry of this Final 
Judgment, Defendant ABI shall provide the United States, for the United 
States to approve in its sole discretion, with a proposed form of 
written notification to be provided to any Independent Distributor that

[[Page 51484]]

distributes Defendant ABI's Beer in the Territory. Such notification 
shall (1) explain the practices prohibited by Section V of this Final 
Judgment, (2) describe the changes Defendant ABI is making to any 
programs, agreements, or any interpretations of agreements required to 
comply with Section V of this Final Judgment, and (3) inform the 
Independent Distributor of its right, without fear of retaliation, to 
bring to the attention of any Monitoring Trustee appointed pursuant to 
Section VIII of this Final Judgment or the United States any actions by 
Defendant ABI which the Independent Distributor believes may violate 
Section V of this Final Judgment. Within ten (10) business days after 
receiving the approval of the United States, Defendant ABI shall make 
reasonable efforts to furnish the approved notification described 
above, together with a paper or electronic copy of this Final Judgment, 
to any Independent Distributor that distributes Defendant ABI's Beer in 
the Territory.

VI. Appointment of Trustee to Effect Divestiture

    A. If following Completion of the Transaction Defendant ABI has not 
divested the Divestiture Assets within the time period specified in 
Section IV.A, Defendant ABI shall notify the United States of that fact 
in writing. Upon application of the United States, the Court shall 
appoint a Divestiture Trustee selected by the United States and 
approved by the Court to divest the Divestiture Assets in a manner 
consistent with this Final Judgment.
    B. After the appointment of a Divestiture Trustee becomes 
effective, only the Divestiture Trustee shall have the right to sell 
the Divestiture Assets. The Divestiture Trustee shall have the power 
and authority to accomplish the divestiture to an Acquirer acceptable 
to the United States at such price and on such terms as are then 
obtainable upon reasonable effort by the Divestiture Trustee, subject 
to the provisions of Sections IV, VI, and VII of this Final Judgment, 
and shall have such other powers as this Court deems appropriate.
    C. Subject to Section VI.E of this Final Judgment, the Divestiture 
Trustee may hire at the cost and expense of Defendant ABI any 
investment bankers, attorneys, or other agents, who shall be solely 
accountable to the Divestiture Trustee, reasonably necessary in the 
Divestiture Trustee's judgment to assist in the divestiture. Any such 
investment bankers, attorneys, or other agents shall serve on such 
terms and conditions as the United States approves including 
confidentiality requirements and conflict of interest certifications.
    D. Defendant ABI shall not object to a sale by the Divestiture 
Trustee on any ground other than the Divestiture Trustee's malfeasance. 
Any such objection by Defendant ABI must be conveyed in writing to the 
United States and the Divestiture Trustee within ten (10) calendar days 
after the Divestiture Trustee has provided the notice required under 
Section VII.A.
    E. The Divestiture Trustee shall serve at the cost and expense of 
Defendant ABI pursuant to a written agreement, on such terms and 
conditions as the United States approves including confidentiality 
requirements and conflict of interest certifications. The Divestiture 
Trustee shall account for all monies derived from the sale of the 
assets sold by the Divestiture Trustee and all costs and expenses so 
incurred. After approval by the Court of the Divestiture Trustee's 
accounting, including fees for its services yet unpaid and those of any 
professionals and agents retained by the Divestiture Trustee, all 
remaining money shall be paid to Defendant ABI and the trust shall then 
be terminated. The compensation of the Divestiture Trustee and any 
professionals and agents retained by the Divestiture Trustee shall be 
reasonable in light of the value of the Divestiture Assets and based on 
a fee arrangement providing the Divestiture Trustee with an incentive 
based on the price and terms of the divestiture and the speed with 
which it is accomplished, but timeliness is paramount. If the 
Divestiture Trustee and Defendant ABI are unable to reach agreement on 
the Divestiture Trustee's or any agents' or consultants' compensation 
or other terms and conditions of engagement within fourteen (14) 
calendar days of appointment of the Divestiture Trustee, the United 
States may, in its sole discretion, take appropriate action, including 
making a recommendation to the Court. The Divestiture Trustee shall, 
within three (3) business days of hiring any other professionals or 
agents, provide written notice of such hiring and the rate of 
compensation to Defendant ABI and the United States. Defendant ABI 
shall use its best efforts to assist the Divestiture Trustee in 
accomplishing the required divestiture. The Divestiture Trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
Divestiture Trustee shall have full and complete access to the 
personnel, books, records, and facilities of the business to be 
divested, and Defendant ABI shall develop financial and other 
information relevant to such business as the Divestiture Trustee may 
reasonably request, subject to reasonable protection for trade secret 
or other confidential research, development, or commercial information. 
Defendant ABI shall take no action to interfere with or to impede the 
Divestiture Trustee's accomplishment of the divestiture.
    F. After its appointment, the Divestiture Trustee shall file 
monthly reports with the United States and the Court setting forth the 
Divestiture Trustee's efforts to accomplish the divestiture ordered 
under this Final Judgment. To the extent such reports contain 
information that the Divestiture Trustee deems confidential, such 
reports shall not be filed in the public docket of the Court. Such 
reports shall include the name, address, and telephone number of each 
person who, during the preceding month, made an offer to acquire, 
expressed an interest in acquiring, entered into negotiations to 
acquire, or was contacted or made an inquiry about acquiring the 
Divestiture Assets, and shall describe in detail each contact with any 
such person. The Divestiture Trustee shall maintain full records of all 
efforts made to divest the Divestiture Assets.
    G. If the Divestiture Trustee has not accomplished the divestiture 
ordered under this Final Judgment within six (6) months after its 
appointment, the Divestiture Trustee shall promptly file with the Court 
a report setting forth (1) the Divestiture Trustee's efforts to 
accomplish the required divestiture, (2) the reasons, in the 
Divestiture Trustee's judgment, why the required divestiture has not 
been accomplished, and (3) the Divestiture Trustee's recommendations. 
To the extent such reports contain information that the Divestiture 
Trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. The Divestiture Trustee shall at the same 
time furnish such report to Defendant ABI and to the United States, 
which shall have the right to make additional recommendations 
consistent with the purpose of the trust. The Court thereafter shall 
enter such orders as it shall deem appropriate to carry out the purpose 
of the Final Judgment, which may, if necessary, include extending the 
trust and the term of the Divestiture Trustee's appointment by a period 
requested by the United States.
    H. If the United States determines that the Divestiture Trustee has 
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend the Court appoint a substitute 
Divestiture Trustee.

[[Page 51485]]

VII. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement with an Acquirer other than Molson Coors, 
Defendant ABI or the Divestiture Trustee, whichever is then responsible 
for effecting the divestiture required herein, shall notify the United 
States of any proposed divestiture required by Section IV of this Final 
Judgment. If the Divestiture Trustee is responsible, it shall similarly 
notify Defendant ABI. The notice shall set forth the details of the 
proposed divestiture and list the name, address, and telephone number 
of each person who offered or expressed an interest in or desire to 
acquire any ownership interest in the Divestiture Assets or, in the 
case of the Divestiture Trustee, any update of the information required 
to be provided under Section VI.G above.
    B. Within fifteen (15) calendar days of receipt by the United 
States of such notice, the United States may request from Defendant 
ABI, the proposed Acquirer, any other third party, or the Divestiture 
Trustee if applicable, additional information concerning the proposed 
divestiture, the proposed Acquirer, and any other potential Acquirer. 
Defendant ABI and the Divestiture Trustee shall furnish any additional 
information requested within fifteen (15) calendar days of the receipt 
of the request, unless the parties shall otherwise agree.
    C. Within thirty (30) calendar days after receipt of the notice or 
within twenty (20) calendar days after the United States has been 
provided the additional information requested from Defendant ABI, the 
proposed Acquirer, any third party, and the Divestiture Trustee, 
whichever is later, the United States shall provide written notice to 
Defendant ABI and the Divestiture Trustee, stating whether or not it 
objects to the proposed divestiture. If the United States provides 
written notice that it does not object, the divestiture may be 
consummated, subject only to Defendant ABI's limited right to object to 
the sale under Section VI.D of this Final Judgment. Absent written 
notice that the United States does not object to the proposed Acquirer 
or upon objection by the United States, a divestiture proposed under 
Section VI shall not be consummated. Upon objection by Defendant ABI 
under Section VI.D, a divestiture proposed under Section VI shall not 
be consummated unless approved by the Court.

VIII. Monitoring Trustee

    A. Upon the filing of this Final Judgment, the United States may, 
in its sole discretion, appoint a Monitoring Trustee, subject to 
approval by the Court.
    B. The Monitoring Trustee shall have the power and authority to 
monitor Defendants' compliance with the terms of this Final Judgment 
and the Hold Separate Stipulation and Order entered by this Court, and 
shall have such other powers as this Court deems appropriate. The 
Monitoring Trustee shall investigate and report on the Defendants' 
compliance with their respective obligations under this Final Judgment 
and Defendants' efforts to effectuate the purposes of this Final 
Judgment, including but not limited to, reviewing (a) complaints that 
Defendant ABI has violated Section V of this Final Judgment; (b) the 
implementation of the compliance plan required by Section XIII.B of 
this Final Judgment; and (c) any claimed breach of the Transition 
Services Agreements, License Agreements, Interim Supply Agreements, or 
other agreement between Defendant ABI and the Acquirer that may affect 
the accomplishment of the purposes of this Final Judgment. If the 
Monitoring Trustee determines that any violation of the Final Judgment 
or breach of any related agreement has occurred, the Monitoring Trustee 
shall recommend an appropriate remedy to the Antitrust Division of the 
United States Department of Justice (the ``Antitrust Division''), 
which, in its sole discretion, can accept, modify, or reject a 
recommendation to pursue a remedy.
    C. Subject to Section VIII.E of this Final Judgment, the Monitoring 
Trustee may hire at the cost and expense of Defendant ABI, any 
consultants, accountants, attorneys, or other persons, who shall be 
solely accountable to the Monitoring Trustee, reasonably necessary in 
the Monitoring Trustee's judgment.
    D. Defendants shall not object to actions taken by the Monitoring 
Trustee in fulfillment of the Monitoring Trustee's responsibilities on 
any ground other than the Monitoring Trustee's malfeasance. Any such 
objection by Defendants must be conveyed in writing to the United 
States and the Monitoring Trustee within ten (10) calendar days after 
the action taken by the Monitoring Trustee giving rise to Defendants' 
objection.
    E. The Monitoring Trustee shall serve at the cost and expense of 
Defendant ABI on such terms and conditions as the United States 
approves. The compensation of the Monitoring Trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
Monitoring Trustee shall be on reasonable and customary terms 
commensurate with the individuals' experience and responsibilities. The 
Monitoring Trustee shall, within three (3) business days of hiring any 
consultants, accountants, attorneys, or other persons, provide written 
notice of such hiring and the rate of compensation to Defendant ABI.
    F. The Monitoring Trustee shall have no responsibility or 
obligation for the operation of Defendants' businesses.
    G. Defendants shall use their best efforts to assist the Monitoring 
Trustee in monitoring Defendants' compliance with their respective 
obligations under this Final Judgment and under the Hold Separate 
Stipulation and Order. The Monitoring Trustee and any consultants, 
accountants, attorneys, and other persons retained by the Monitoring 
Trustee shall have full and complete access to the personnel, books, 
records, and facilities relating to compliance with this Final 
Judgment, subject to reasonable protection for trade secret or other 
confidential research, development, or commercial information or any 
applicable privileges, to the extent Defendants have the right to 
provide such access. Defendants shall take no action to interfere with 
or to impede the Monitoring Trustee's accomplishment of its 
responsibilities.
    H. After its appointment, the Monitoring Trustee shall file reports 
every ninety (90) days, or more frequently as needed, with the United 
States and, as appropriate, the Court setting forth the Defendants' 
efforts to comply with their individual obligations under this Final 
Judgment and under the Hold Separate Stipulation and Order. To the 
extent such reports contain information that the Monitoring Trustee 
deems confidential, such reports shall not be filed in the public 
docket of the Court.
    I. The Monitoring Trustee shall serve until the sale of all the 
Divestiture Assets is finalized pursuant to either Section IV or 
Section VI of this Final Judgment and the Transition Services 
Agreements and the Interim Supply Agreements have expired and all other 
relief has been completed as defined in Section V unless the United 
States, in its sole discretion, authorizes the early termination of the 
Monitoring Trustee's service.

IX. Financing

    Defendants shall not finance all or any part of any purchase made 
pursuant

[[Page 51486]]

to Section IV or Section VI of this Final Judgment.

X. Hold Separate

    Until the divestiture required by this Final Judgment has been 
accomplished, or the Transaction is abandoned by the Defendants in 
accordance with the terms of the Co-Operation Agreement between the 
Defendants dated November 11, 2015 and the United States has notified 
the Court, Defendants shall take all steps necessary to comply with the 
Hold Separate Stipulation and Order entered by this Court. Defendants 
shall take no action that would jeopardize the divestiture ordered by 
this Court.

XI. Affidavits

    A. Within twenty (20) calendar days of the filing of this proposed 
Final Judgment, and every thirty (30) calendar days thereafter until 
the divestiture has been completed under Section IV or Section VI, each 
Defendant shall deliver to the United States an affidavit as to the 
fact and manner of its compliance with Section IV or Section VI of this 
Final Judgment. Each such affidavit on behalf of Defendant ABI shall 
also include the name, address, and telephone number of each person 
who, during the preceding thirty (30) calendar days, made an offer to 
acquire, expressed an interest in acquiring, entered into negotiations 
to acquire, or was contacted or made an inquiry about acquiring, any 
interest in the Divestiture Assets, and shall describe in detail each 
contact with any such person during that period. Defendant ABI's 
affidavit shall also include a description of the efforts Defendant ABI 
has taken to solicit buyers for the Divestiture Assets, and to provide 
required information to prospective Acquirers, including the 
limitations, if any, on such information. Assuming the information set 
forth in the affidavit is true and complete, any objection by the 
United States to information provided by Defendants, including 
limitation on information, shall be made within fourteen (14) calendar 
days of receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of this proposed 
Final Judgment, each Defendant shall deliver to the United States an 
affidavit that describes in reasonable detail all actions it has taken 
and all steps it has implemented on an ongoing basis to comply with 
Section X of this Final Judgment. Each Defendant shall deliver to the 
United States an affidavit describing any changes to the efforts and 
actions outlined in its earlier affidavits filed pursuant to this 
section within fifteen (15) calendar days after the change is 
implemented.
    C. Defendants shall keep all records of all efforts made to 
preserve and divest the Divestiture Assets until one year after the 
date of the divestiture.

XII. Notification of Future Transactions

    A. Unless such transaction is otherwise subject to the reporting 
and waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended, 15 U.S.C. 18a (the ``HSR Act''), 
Defendant ABI, without providing at least thirty (30) calendar days 
advance notification to the United States, shall not directly or 
indirectly acquire or license a Covered Interest in or from a Covered 
Entity.
    B. Any such notification shall be provided to the Antitrust 
Division in the same format as, and per the instructions relating to 
the Notification and Report Form set forth in the Appendix to Part 803 
of Title 16 of the Code of Federal Regulations as amended. Notification 
shall be provided at least thirty (30) calendar days prior to acquiring 
any such interest. If within the 30-day period after notification, 
representatives of the Antitrust Division make a written request for 
additional information, Defendant ABI shall not consummate the proposed 
transaction or agreement until thirty (30) calendar days after 
submitting all such additional information. Early termination of the 
waiting periods in this paragraph may be requested and, where 
appropriate, granted in the same manner as is applicable under the 
requirements and provisions of the HSR Act and rules promulgated 
thereunder.
    C. All references to the HSR Act in this Final Judgment refer to 
the HSR Act as it exists at the time of the transaction or agreement 
and incorporate any subsequent amendments to the HSR Act. This Section 
XII shall be broadly construed and any ambiguity or uncertainty 
regarding the filing of notice under this Section XII shall be resolved 
in favor of filing notice.

XIII. Nondisclosure of Information

    A. Each Defendant shall implement and maintain procedures to 
prevent the disclosure of Confidential Information by or through 
Defendants to Defendants' respective affiliates who are involved in the 
marketing, distribution, or sale of Beer or other beverages in the 
Territory, or to any other person who does not have a need to know the 
information.
    B. Each Defendant shall, within ten (10) business days of the entry 
of the Hold Separate Stipulation and Order, submit to the United States 
a compliance plan setting forth in detail the procedures implemented to 
effect compliance with Section XIII.A of this Final Judgment. In the 
event that the United States rejects a Defendant's compliance plan, 
that Defendant shall be given the opportunity to submit, within ten 
(10) business days of receiving the notice of rejection, a revised 
compliance plan. If the United States and a Defendant cannot agree on a 
compliance plan, the United States shall have the right to request that 
the Court rule on whether the Defendant's proposed compliance plan is 
reasonable.
    C. Each Defendant may submit to the United States evidence relating 
to the actual operation of its respective compliance plan in support of 
a request to modify such compliance plan set forth in this Section 
XIII. In determining whether it would be appropriate to consent to 
modify the compliance plan, the United States, in its sole discretion, 
shall consider the need to protect Confidential Information and the 
impact the compliance plan has had on Defendant ABI's ability to 
efficiently provide services, supplies, and products under the 
Transition Services Agreements, the License Agreements, the Interim 
Supply Agreements, and any agreements entered into between Defendant 
ABI and the Acquirer subject to Section V.C.
    D. Defendants shall prior to the Completion of the Transaction, and 
Defendant ABI shall following Closing:
    1. Furnish a copy of this Final Judgment and related Competitive 
Impact Statement within sixty (60) days of entry of the Final Judgment 
to (a) each officer, director, and any other employee that will receive 
Confidential Information; (b) each officer, director, and any other 
employee that is involved in (i) any contact with the Acquirer or 
MillerCoors, (ii) making decisions under the Transition Services 
Agreements, the License Agreements, the Interim Supply Agreements, and 
any agreements entered into between Defendants and the Acquirer subject 
to Section V.C, or (iii) making decisions regarding Defendant ABI's 
relationships with, agreements with, or policies regarding 
Distributors; and (c) any successor to a person designated in Section 
XIII.D.1(a) or (b);
    2. annually brief each person designated in Section XIII.D.1 on the 
meaning and requirements of this Final Judgment and the antitrust laws; 
and
    3. obtain from each person designated in Section XIII.D.1, within 
sixty (60) days of that person's receipt of the Final Judgment, a 
certification that he or she (i) has read and, to the best of his or 
her ability, understands and agrees to abide

[[Page 51487]]

by the terms of this Final Judgment; (ii) is not aware of any violation 
of the Final Judgment that has not been reported to the company; and 
(iii) understands that any person's failure to comply with this Final 
Judgment may result in an enforcement action for civil or criminal 
contempt of court against that Defendant and/or any person who violates 
this Final Judgment.

XIV. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time authorized representatives of the Antitrust Division, 
including consultants and other persons retained by the United States, 
shall, upon written request of an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to Defendants, be permitted:
    1. Access during Defendants' office hours to inspect and copy, or 
at the option of the United States, to require Defendants to provide 
hard copy or electronic copies of, all books, ledgers, accounts, 
records, data, and documents in the possession, custody, or control of 
Defendants, relating to any matters contained in this Final Judgment; 
and
    2. to interview, either informally or on the record, Defendants' 
officers, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews shall be subject to the 
reasonable convenience of the interviewee and without restraint or 
interference by Defendants.

    B. Upon the written request of an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, 
Defendants shall submit written reports or respond to written 
interrogatories, under oath if requested, relating to any of the 
matters contained in this Final Judgment as may be requested. Written 
reports authorized under this paragraph may, at the sole discretion of 
the United States, require Defendants to conduct, at Defendants' cost, 
an independent audit or analysis relating to any of the matters 
contained in this Final Judgment.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by the United States to any person other 
than an authorized representative of the executive branch of the United 
States, except in the course of legal proceedings to which the United 
States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by 
Defendants to the United States, Defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under the Protective Order, then 
the United States shall give Defendants ten (10) calendar days notice 
prior to divulging such material in any legal proceeding (other than a 
grand jury proceeding).

XV. No Reacquisition

    Defendant ABI may not reacquire any part of the Divestiture Assets 
during the term of this Final Judgment.

XVI. Bankruptcy

    The failure of any party to any agreement entered into to comply 
with this Final Judgment to perform any remaining obligations of such 
party under the agreement shall not excuse performance by the other 
party of its obligations thereunder. Accordingly, for purposes of 
Section 365(n) of the Bankruptcy Reform Act of 1978, as amended, and 
codified as 11 U.S.C. 101 et. seq. (the ``Bankruptcy Code'') or any 
analogous provision under any law of any foreign or domestic, federal, 
state, provincial, local, municipal or other governmental jurisdiction 
relating to bankruptcy, insolvency or reorganization (``Foreign 
Bankruptcy Law''), (a) the agreement will not be deemed to be an 
executory contract, and (b) if for any reason a License Agreement is 
deemed to be an executory contract, the licenses granted under the 
License Agreement shall be deemed to be licenses to rights in 
``intellectual property'' as defined in Section 101 of the Bankruptcy 
Code or any analogous provision of Foreign Bankruptcy Law and the 
Acquirer shall be protected in the continued enjoyment of its right 
under the License Agreement including, without limitation, the Acquirer 
so elects, the protection conferred upon licensees under 11 U.S.C. 
Section 365(n) of the Bankruptcy Code or any analogous provision of 
Foreign Bankruptcy Law.

XVII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to ensure and 
enforce compliance, and to punish violations of its provisions.

XVIII. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten (10) years from the date of its entry.

XIX. Public Interest Determination

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16, including making copies available to the 
public of this Final Judgment, the Competitive Impact Statement, and 
any comments thereon and the United States' responses to comments. 
Based upon the record before the Court, which includes the Competitive 
Impact Statement and any comments and response to comments filed with 
the Court, entry of this Final Judgment is in the public interest.

-----------------------------------------------------------------------
Date:

Court approval subject to procedures of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16.

-----------------------------------------------------------------------
United States District Judge

Attachment A--Miller Brands

1. Hamm's
    A. Hamm's
    B. Hamm's Golden Draft
    C. Hamm's Special Light
2. Icehouse
    A. Icehouse 5.0
    B. Icehouse 5.5
    C. Icehouse Light
3. Magnum Malt Liquor
4. Mickey's
    A. Mickey's
    B. Mickey's Ice
5. Miller
    A. Miller Chill
    B. Miller Dark
    C. Miller Genuine Draft
    D. Miller Genuine Draft Light
    E. Miller Genuine Draft 64
    F. Miller High Life
    G. Miller High Life Light
    H. Miller Lite
    I. Miller Mac's Light
    J. Miller Pilsner
    K. Miller Special
6. Milwaukee's
    A. Milwaukee's Best
    B. Milwaukee's Best Dry
    C. Milwaukee's Best Ice
    D. Milwaukee's Best Light
7. Olde English
    A. Olde English 800
    B. Olde English 800 7.5
    C. Olde English High Gravity 800
8. Red Dog
9. Sharp's (Non-Alcohol)
10. Southpaw Light
11. Steel
    A. Steel Reserve Triple Export 8.1%
    B. Steel Reserve High Gravity
    C. Steel Reserve High Gravity 6.0
    D. Steel Six
12. Frederick Miller Classic Chocolate Lager

[[Page 51488]]

13. Henry Weinhard's
    A. Henry Weinhard's Blonde Lager
    B. Henry Weinhard's Blue Boar
    C. Henry Weinhard's Classic Dark Lager
    D. Henry Weinhard's Hefeweizen
    E. Henry Weinhard's Private Reserve
    F. Henry Weinhard's Belgian Style Wheat
    G. Henry Weinhard's Root Beer
    H. Henry Weinhard's Black Cherry
    I. Henry Weinhard's Vanilla Cream
    J. Henry Weinhard's Orange Cream
14. Leinenkugel's
    A. Leinenkugel's Apple Spice
    B. Leinenkugel's Berry Weiss
    C. Leinenkugel's BIG BUTT
    D. Leinenkugel's Creamy Dark
    E. Leinenkugel's Honey Weiss
    F. Leinenkugel's Light
    G. Leinenkugel's Oktoberfest
    H. Leinenkugel's Original Lager
    I. Leinenkugel's Red Lager
    J. Leinenkugel's Sunset Wheat
15. Sparks
    A. Sparks
    B. Sparks Light
    C. Sparks Plus 6%
    D. Sparks Plus 7%

Attachment B--Import Brands

1. Pilsner Urquell
2. Peroni
3. Grolsch
4. Tyskie
5. Lech
6. Cerveza Aguila
7. Cristal
8. Cusquena
9. Sheaf Stout
10. Castle Lager
11. Victoria Bitter
12. Crown Lager
13. Pure Blonde
14. Carlton Draught and Carlton Dry
15. Matilda Bay Brewing Company products described in the 
Exploitation of Rights Agreement between MBBC Pty Ltd (ACN 009 077 
703) and MillerCoors LLC dated as of March 31, 2013
16. Cascade Brewery Company products described in the Exploitation 
of Rights Agreement between Cascade Brewery Company Pty Ltd (ACN 058 
152 195) and MillerCoors LLC dated as of March 31, 2013
17. Caguama
18. Cantina
19. Pilsener
20. Regia
21. Suprema
22. Taurino
23. Barena
24. Port Royal
25. Salva Vida
26. Santiago
27. Haywards 5000
28. Arriba
29. Caballo
30. Cabana
31. Del Mar
32. San Lucas
33. Tocayo
34. Rialto
35. to the extent not otherwise listed herein, La Constancia S.A. de 
C.V. products described in the Supplier-Importer Agreement, dated as 
of July 11, 2005 between La Constancia S. S.A. de C.V. and Winery 
Exchange, Inc.

Attachment C--Defendant ABI's Calculation Beer Volume Sold Through ABI-
Owned Distributors

    For purposes of Section V.B., the percentage of Defendant ABI's 
Beer sold by ABI-Owned Distributors in the Territory will be calculated 
according to the following formula:
[GRAPHIC] [TIFF OMITTED] TN04AU16.006

    Where X and Y are defined as:

    X = volume of Defendant ABI's Beer that was sold by ABI-Owned 
Distributors to retailers in the Territory, as indicated by the most 
comprehensive data then used by ABI (currently, ABI's BudNet 
system), during the Relevant Period. The Relevant Period, for 
purposes of this Attachment C, shall be the 12 month period ending 
at the month-end immediately prior to the execution of the 
acquisition agreement governing the acquisition by ABI of the assets 
or equity interest, as applicable, of a Distributor. For the 
avoidance of doubt, X will include the volume of Defendants' Beer 
that was sold during the Relevant Period to retailers in the 
territory by the Distributor whose assets or equity interests are 
the subject of the acquisition agreement.
    Y = volume of Defendant ABI's Beer that was sold to retailers in 
the Territory during the Relevant Period, as indicated by the most 
comprehensive data then used by ABI (currently, ABI's BudNet 
system).

[FR Doc. 2016-18504 Filed 8-3-16; 8:45 am]
BILLING CODE 4410-11-P



                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                                 51465

                                                of any remedial order and should not                       If the Commission orders some form                    Any person desiring to submit a
                                                change hemophilia medications within                    of remedy, the U.S. Trade                             document to the Commission in
                                                fifty days?                                             Representative, as delegated by the                   confidence must request confidential
                                                   (c) If patients need to travel to and                President, has 60 days to approve or                  treatment. All such requests should be
                                                schedule appointments at HTCs, is the                   disapprove the Commission’s action.                   directed to the Secretary to the
                                                sixty day grace period sufficient?                      See Presidential Memorandum of July                   Commission and must include a full
                                                   (d) If all patients currently using                  21, 2005. 70 FR 43251 (July 26, 2005).                statement of the reasons why the
                                                Novoeight need to begin seeking                         During this period, the subject articles              Commission should grant such
                                                alternative treatments at the same time,                would be entitled to enter the United                 treatment. See 19 CFR 201.6. Documents
                                                is the availability of medical                          States under bond, in an amount                       for which confidential treatment by the
                                                professionals qualified to treat                        determined by the Commission and                      Commission is properly sought will be
                                                hemophilia A sufficient to meet that                    prescribed by the Secretary of the                    treated accordingly. All information,
                                                spike in demand such that all patients                  Treasury. The Commission is, therefore,               including confidential business
                                                can find alternative treatments within a                interested in receiving submissions                   information and documents for which
                                                sixty day time frame?                                   concerning the amount of the bond that                confidential treatment is properly
                                                   (e) If the Commission were to limit a                should be imposed if a remedy is                      sought, submitted to the Commission for
                                                remedy so that patients who cannot find                 ordered.                                              purposes of this Investigation may be
                                                an alternative medicine within sixty                       Written Submissions: The parties to                disclosed to and used: (i) By the
                                                days (or other time period), despite                    the investigation are requested to file               Commission, its employees and Offices,
                                                reasonable efforts, can continue to                     written submissions responding to the                 and contract personnel (a) for
                                                obtain Novoeight, how could the                         above question regarding anticipation                 developing or maintaining the records
                                                Commission do so without placing any                    under 35 U.S.C. 102(g) of the asserted                of this or a related proceeding, or (b) in
                                                or only a minimal burden on patients or                 claims of the ’061 patent. Parties to the             internal investigations, audits, reviews,
                                                medical professionals and still                         investigation, interested government                  and evaluations relating to the
                                                guarantee access to Novoeight by those                  agencies, and the public are encouraged               programs, personnel, and operations of
                                                patients? Could such a limit on the                     to file written submissions on the issues             the Commission including under 5
                                                remedy be crafted so that the parties,                  of remedy, the public interest, and                   U.S.C. Appendix 3; or (ii) by U.S.
                                                Customs and Border Protection (‘‘CBP’’),                bonding; and such submissions should                  government employees and contract
                                                U.S. distributors and vendors, doctors,                 address the recommended                               personnel, solely for cybersecurity
                                                                                                        determination by the ALJ on remedy,                   purposes. All nonconfidential written
                                                and patients can maintain reliable
                                                                                                        public interest, and bonding, and the                 submissions will be available for public
                                                supplies of Novoeight for patients in
                                                                                                        questions posed above. Complainants                   inspection at the Office of the Secretary
                                                need?
                                                                                                        are requested to submit proposed                      and on EDIS.
                                                   (9) If the Commission were to tailor
                                                                                                        remedial orders for the Commission’s                     The authority for the Commission’s
                                                any remedial order to allow current
                                                                                                        consideration. Complainants and OUII                  determination is contained in section
                                                users to continue to reliably obtain
                                                                                                        are also requested to state the date that             337 of the Tariff Act of 1930, as
                                                Novoeight, how could the Commission                     the subject patents expire and the
                                                draft such an exception? Could such an                                                                        amended (19 U.S.C. 1337), and in part
                                                                                                        HTSUS numbers under which the                         210 of the Commission’s Rules of
                                                exception be crafted so that the parties,               accused products are imported.
                                                CBP, U.S. distributors and vendors, the                                                                       Practice and Procedure (19 CFR part
                                                                                                        Complainants are further requested to
                                                appropriate decisionmakers, doctors or                                                                        210).
                                                                                                        supply the names of known importers of
                                                other prescribers, and patients can                     the products at issue in this                           By order of the Commission.
                                                maintain reliable supplies of Novoeight                 investigation. The written submissions                  Issued: July 29, 2016.
                                                for patients in need while providing no                 and proposed remedial orders must be                  Katherine M. Hiner,
                                                or only a minimal burden on medical                     filed no later than close of business on              Acting Supervisory Attorney.
                                                professionals and patients?                             August 19, 2016. Reply submissions                    [FR Doc. 2016–18464 Filed 8–3–16; 8:45 am]
                                                   (10) If the Commission were to issue                 must be filed no later than the close of              BILLING CODE 7020–02–P
                                                a remedial order, to what extent should                 business on August 26, 2016. No further
                                                the Commission craft the remedy so that                 submissions will be permitted unless
                                                individuals who are seeking treatment                   otherwise ordered by the Commission.
                                                for hemophilia A for the first time and                    Persons filing written submissions                 DEPARTMENT OF JUSTICE
                                                for whom relevant alternative                           must file the original document
                                                medications are not suitable could                                                                            Antitrust Division
                                                                                                        electronically on or before the deadlines
                                                access Novoeight? For example,                          stated above and submit eight true paper              United States v. Anheuser-Busch
                                                   (a) If such modification is appropriate,             copies to the Office of the Secretary by              InBev SA/NV et al.; Proposed Final
                                                how could it be accomplished?                           noon the next day pursuant to section                 Judgment and Competitive Impact
                                                   (b) What standards should a physician                210.4(f) of the Commission’s Rules of                 Statement
                                                or other decisionmaker use to determine                 Practice and Procedure (19 CFR
                                                whether such medicines are suitable for                 210.4(f)). Submissions should refer to                  Notice is hereby given pursuant to the
                                                the patient?                                            the investigation number (‘‘Inv. No.                  Antitrust Procedures and Penalties Act,
                                                   (c) Could such a limit on the remedy                 337–TA–956’’) in a prominent place on                 15 U.S.C. 16(b)–(h), that a proposed
                                                be crafted so that the parties, CBP, U.S.                                                                     Final Judgment, Stipulation, and
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                        the cover page and/or the first page. (See
                                                distributors and vendors, the                           Handbook for Electronic Filing                        Competitive Impact Statement have
                                                appropriate decisionmakers, doctors or                  Procedures, http://www.usitc.gov/                     been filed with the United States
                                                other prescribers, and patients can                     secretary/fed_reg_notices/rules/                      District Court for the District of
                                                maintain reliable supplies of Novoeight                 handbook_on_electronic_filing.pdf).                   Columbia in United States of America v.
                                                for patients in need while providing no                 Persons with questions regarding filing               Anheuser Busch InBev SA/NV et al.,
                                                or only a minimal burden on medical                     should contact the Secretary (202–205–                Civil Action No. 1:16–cv–01483. On
                                                professionals and patients?                             2000).                                                July 20, 2016, the United States filed a


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00036   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51466                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                Complaint alleging that the proposed                    Complaint                                              distribution of their beers, thereby
                                                acquisition by Anheuser-Busch InBev                        1. The United States of America                     restricting their ability to serve the
                                                SA/NV (‘‘ABI’’) of SABMiller plc                        brings this civil antitrust action to                  millions of Americans who spend over
                                                (‘‘SABMiller’’) would violate Section 7                 enjoin Anheuser-Busch InBev SA/NV                      $100 billion on beer every year. These
                                                of the Clayton Act, 15 U.S.C. 18. The                   (‘‘ABI’’) from acquiring SABMiller plc                 exclusionary effects would fall
                                                proposed Final Judgment, filed at the                   (‘‘SABMiller’’). The United States                     especially on brewers and consumers of
                                                same time as the Complaint, requires                    alleges as follows:                                    high-end beers that have served as an
                                                the divestiture of SABMiller’s equity                                                                          important constraint on ABI’s ability to
                                                and ownership stake in MillerCoors                      I. Nature of the Action                                raise the price of its beers, and thus
                                                LLC, which is the joint venture through                    2. On November 11, 2015, ABI agreed                 would allow ABI to charge consumers
                                                which SABMiller conducts substantially                  to acquire SABMiller in a transaction                  higher prices for its beers.
                                                all of its operations in the United States,             valued at $107 billion.                                   8. ABI, as the largest U.S. brewer, uses
                                                and SABMiller’s world-wide rights to                       3. ABI is the largest brewing company               a variety of practices and contractual
                                                Miller-branded beers. ABI must also                     both in the United States and                          provisions to promote exclusivity from
                                                offer the acquirer of the divested assets               worldwide. In the United States, ABI                   distributors that sell ABI beer. Among
                                                perpetual, fully paid-up, royalty-free                  accounts for approximately 47% of all                  other things, ABI has established
                                                licenses to permit the acquirer to                      beer sales.1                                           financial incentive programs that
                                                manufacture, import, distribute, market,                   4. SABMiller is the second-largest                  reward distributors based on the
                                                and sell certain SABMiller-owned beers                  global brewing company. In the United                  percentage of ABI beer that a distributor
                                                in the United States. The proposed Final                States, SABMiller owns 58% of                          sells as compared to the beer of ABI
                                                Judgment also requires ABI to undertake                 MillerCoors LLC (‘‘MillerCoors’’), which               competitors. Moreover, ABI insists on
                                                certain actions and refrain from certain                is a joint venture between SABMiller                   contractual terms that limit a
                                                conduct for the purposes of remedying                   and Molson Coors Brewing Company                       distributor’s ability to promote and sell
                                                the potential loss of competition alleged               (‘‘Molson Coors’’). In the United States,              a competitor’s beer. If permitted to
                                                in the Complaint.                                       MillerCoors is the second-largest                      acquire SABMiller, ABI would be able
                                                   Copies of the Complaint, proposed                    brewing company, accounting for 25%                    to expand these practices in its current
                                                Final Judgment, and Competitive Impact                  of all beer sales, and is ABI’s largest                distribution channel and to pursue a
                                                Statement are available for inspection                  competitor.                                            similar strategy with distributors that
                                                on the Antitrust Division’s Web site at                    5. ABI and MillerCoors are the two                  currently sell the beers of MillerCoors
                                                http://www.justice.gov/atr and at the                   largest brewers in local beer markets                  and third-party rivals. Consequently,
                                                Office of the Clerk of the United States                throughout the United States and have                  ABI’s acquisition of a controlling
                                                District Court for the District of                      combined market shares that range from                 interest in MillerCoors via its
                                                Columbia. Copies of these materials may                 37% to 94% of beer sales in 58                         acquisition of SABMiller would likely
                                                be obtained from the Antitrust Division                 Metropolitan Statistical Areas (‘‘MSA’’)               harm competition by undermining the
                                                upon request and payment of the                         in the United States.2 In more than 15                 ability of its remaining rivals to compete
                                                copying fee set by Department of Justice                of these MSAs, ABI and MillerCoors                     with ABI, leading to higher prices, fewer
                                                regulations.                                            jointly account for 70% or more of beer                choices, and less innovative products
                                                                                                        sales.                                                 for U.S. beer consumers.
                                                   Public comment is invited within 60
                                                                                                           6. ABI’s proposed acquisition of                       9. For these reasons, ABI’s proposed
                                                days of the date of this notice. Such
                                                                                                        SABMiller would give ABI a majority                    acquisition of SABMiller violates
                                                comments, including the name of the
                                                                                                        ownership interest in and 50%                          Section 7 of the Clayton Act, 15 U.S.C.
                                                submitter, and responses thereto, will be
                                                                                                        governance rights over MillerCoors.                    18, and should be permanently
                                                posted on the Antitrust Division’s Web
                                                                                                        Consequently, this transaction would                   enjoined.
                                                site, filed with the Court, and, under
                                                                                                        eliminate head-to-head competition
                                                certain circumstances, published in the                                                                        II. Jurisdiction, Venue, and Interstate
                                                                                                        between the two largest brewers in the
                                                Federal Register. Comments should be                                                                           Commerce
                                                                                                        United States—ABI and MillerCoors—
                                                directed to Peter Mucchetti, Chief,
                                                                                                        both nationally and in every local                       10. The United States brings this
                                                Litigation I, Antitrust Division,
                                                                                                        market in the United States. This                      action pursuant to Section 15 of the
                                                Department of Justice, 450 Fifth Street
                                                                                                        reduction in competition would likely                  Clayton Act, as amended, 15 U.S.C. 25,
                                                NW., Suite 4100, Washington, DC 20530
                                                                                                        result in increased beer prices and fewer              to prevent and restrain Defendants ABI
                                                (telephone: 202–353–4211).
                                                                                                        choices for beer consumers across the                  and SABMiller from violating Section 7
                                                Patricia A. Brink,                                      United States.                                         of the Clayton Act, as amended, 15
                                                Director of Civil Enforcement.                             7. This transaction threatens other                 U.S.C. 18. The Court has subject matter
                                                                                                        likely anticompetitive effects. ABI’s                  jurisdiction over this action pursuant to
                                                United States District Court for the                    proposed acquisition of SABMiller                      Section 15 of the Clayton Act, 15 U.S.C.
                                                District of Columbia                                    would increase ABI’s incentive and                     25, and 28 U.S.C. 1331, 1337(a), and
                                                  UNITED STATES OF AMERICA, U.S.                        ability to disadvantage its remaining                  1345.
                                                Department of Justice, Antitrust Division, 450          rivals by limiting or impeding the                       11. ABI and SABMiller produce and
                                                Fifth Street NW., Suite 4100, Washington, DC                                                                   sell beer in the flow of interstate
                                                20530, Plaintiff, v. ANHEUSER-BUSCH
                                                                                                          1 National market shares are based on dollar-sales
                                                                                                                                                               commerce and their production and sale
                                                                                                        data from IRI, a market research firm, whose data      of beer substantially affect interstate
sradovich on DSK3GMQ082PROD with NOTICES




                                                InBEV SA/NV, Brouwerijplein, 1, 3000
                                                                                                        are commonly used by industry participants. The
                                                Leuven, Belgium, and SABMILLER plc,                     national market shares reflect only off-premise        commerce. ABI and SABMiller have
                                                SABMiller House, Church Street West,                    sales. ABI accounts for approximately 35% of dollar    each consented to personal jurisdiction
                                                Woking, Surry, GU21 6HS, United Kingdom,                sales of beer made only through grocery stores.        and venue in this judicial district for
                                                                                                          2 The MSAs are defined by IRI. These 58 MSAs
                                                Defendants.                                                                                                    purposes of this action. Venue is proper
                                                                                                        represent every MSA in the United States for which
                                                CASE NO.: 1:16–cv–01483                                 reliable data are available at the MSA level. MSA-
                                                                                                                                                               for ABI, a Belgium corporation, and
                                                JUDGE: Emmet G. Sullivan                                level data reflect dollar sales of beer only through   SABMiller, a United Kingdom
                                                FILED: 07/20/2016                                       grocery stores.                                        corporation, in this judicial district


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00037   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                           51467

                                                under Section 12 of the Clayton Act, 15                 premium beers are priced lower than                   high-end brands, consumers are
                                                U.S.C. 22, and 28 U.S.C. 1391.                          premium beers and are generally                       increasingly willing to trade up from
                                                                                                        perceived as being of lower quality than              one category of brands to another.
                                                III. The Defendants and the United
                                                                                                        premium beers.                                        Consequently, competition in the high-
                                                States Beer Industry                                       17. The premium segment generally                  end beer segment serves as an important
                                                A. The Defendants                                       consists of medium-priced American                    constraint on the ability of ABI and
                                                                                                        lager beers, such as ABI’s Budweiser,                 MillerCoors to raise—either unilaterally
                                                   12. ABI is a corporation organized and
                                                                                                        and the Miller and Coors brand families,              or through coordination—beer prices in
                                                existing under the laws of Belgium, with
                                                                                                        including the ‘‘light’’ varieties.3                   the United States.
                                                its headquarters in Leuven, Belgium.
                                                                                                           18. The sub-premium and premium
                                                ABI owns and operates 19 breweries in                                                                         C. Beer Distribution in the United States
                                                                                                        segments accounted for 69% of all beer
                                                the United States. ABI owns more than
                                                                                                        sold in the United States in 2015.                       24. Most brewers use distributors to
                                                40 major beer brands sold in the United                    19. The high-end segment generally
                                                States, including Bud Light—the top-                                                                          merchandise, sell, and deliver beer to
                                                                                                        consists of craft beers, which are often              retailers. Those retailers are primarily
                                                selling beer brand in the United States—                produced in small-scale breweries, and
                                                and other popular beer brands, such as                                                                        grocery stores, large retailers (such as
                                                                                                        imported beers. High-end beers sell at a              Target and Walmart), convenience
                                                Budweiser, Busch, Michelob, Natural                     wide variety of prices, most of which
                                                Light, Stella Artois, Shock Top, Goose                                                                        stores, liquor stores, restaurants, and
                                                                                                        are higher than the prices for premium                bars. Retailers, in turn, sell beer to
                                                Island, and Beck’s.                                     beers. Examples of high-end craft beers
                                                   13. SABMiller is a corporation                                                                             consumers. Beers brewed in foreign
                                                                                                        include Dogfish Head, Flying Dog, and                 countries are typically sold to an
                                                organized and existing under the laws of                Sam Adams. Examples of high-end
                                                the United Kingdom, with its                                                                                  importer that resells the beer to
                                                                                                        imports include Corona, Stella Artois,                distributors.
                                                headquarters in London, England.                        and Peroni.
                                                SABMiller operates in the United States                                                                          25. Distributors owned by ABI
                                                                                                           20. High-end beers account for a                   currently distribute about 9% of ABI’s
                                                through its 58% ownership interest in                   much smaller portion of the beer sold by
                                                the MillerCoors joint venture.                                                                                beer in the United States. These
                                                                                                        ABI and MillerCoors in the United                     distributors typically distribute only
                                                   14. MillerCoors is a limited liability               States than premium and sub-premium
                                                company organized and existing under                                                                          brands that are owned by or affiliated
                                                                                                        beer. However, over the last five years,              with ABI. To the extent that ABI-owned
                                                the laws of the State of Delaware, with                 the high-end beer segment’s market
                                                its principal place of business in                                                                            distributors sell beer brands that are not
                                                                                                        share in the United States has increased              owned by or affiliated with ABI, those
                                                Chicago, Illinois. Under MillerCoors’                   from 21% to 31%, while the market
                                                corporate governance structure,                                                                               brands tend to be local craft beers with
                                                                                                        share of the premium and sub-premium                  limited sales and high operating costs.
                                                SABMiller and Molson Coors, through                     segments has decreased from 79% to
                                                their designated representatives, have                                                                           26. Almost all of the remaining
                                                                                                        69%.                                                  volume of ABI’s beer is sold by
                                                an equal right to govern MillerCoors.                      21. Historically, ABI has employed a
                                                MillerCoors owns and operates 12                                                                              distributors who sell large volumes of
                                                                                                        ‘‘price leadership’’ strategy whereby
                                                breweries in the United States.                                                                               ABI beer, including the Budweiser and
                                                                                                        ABI, as the largest U.S. brewer, seeks to
                                                MillerCoors has the sole right to                                                                             Bud Light brands of beer, but are not
                                                                                                        establish industry-wide price increases
                                                produce and sell in the United States                                                                         owned by ABI (‘‘ABI-Affiliated
                                                                                                        by being the first brewer to announce its
                                                more than 40 major brands of beer,                                                                            Wholesalers’’). ABI beer brands account
                                                                                                        prices for the upcoming year. In most
                                                including Coors Light and Miller Lite—                                                                        for approximately 90% by volume, on
                                                                                                        local markets, ABI is the market share
                                                the second- and fourth-highest selling                                                                        average, of the beer sold by ABI-
                                                                                                        leader and issues its price
                                                beer brands in the United States.                                                                             Affiliated Wholesalers. ABI-Affiliated
                                                                                                        announcement first, purposely making
                                                MillerCoors also has the right to                                                                             Wholesalers often also distribute high-
                                                                                                        its price increases transparent to the
                                                produce and sell in the United States                                                                         end beers that compete with ABI’s
                                                                                                        market so its competitors will follow its
                                                other popular beer brands, such as                                                                            beers, such as Heineken or Sam Adams.
                                                                                                        lead. These price increases vary by
                                                Miller Genuine Draft, Coors Banquet,                                                                             27. ABI exerts considerable influence
                                                                                                        region, but typically cover a broad range
                                                and Blue Moon. In addition,                                                                                   over ABI-Affiliated Wholesalers, in part
                                                                                                        of beer brands and packages.
                                                MillerCoors has the exclusive right to                     22. For many years, MillerCoors has                by requiring that these distributors enter
                                                import into and sell in the United States               followed ABI’s price increases to a                   into a Wholesaler Equity Agreement
                                                certain beer brands owned by                            significant degree.                                   (‘‘Equity Agreement’’) with ABI. The
                                                SABMiller, including Peroni, Grolsch,                      23. Brewers with a broad portfolio of              Equity Agreement contains a number of
                                                and Pilsner Urquell.                                    beer brands, such as ABI and                          provisions that are designed to
                                                                                                        MillerCoors, seek to maintain ‘‘price                 encourage ABI-Affiliated Wholesalers to
                                                B. Beer Segments in the United States                                                                         sell and promote ABI’s beer brands
                                                                                                        gaps’’ between each beer segment to
                                                  15. Beers sold in the United States are               minimize competition across segments.                 instead of the beer brands of ABI’s
                                                segmented based on price and quality.                   As ABI has continued to raise premium                 competitors.
                                                Beers in the United States can generally                prices, it is increasingly concerned                     28. For example, the Equity
                                                be grouped into three segments: Sub-                    about the threat of high-end brands                   Agreement prohibits an ABI-Affiliated
                                                premium, premium, and high-end. A                       constraining its ability to lead future               Wholesaler from requesting that a bar
                                                large majority of the beers sold by ABI                 price increases. As the prices of                     replace an ABI tap handle with a
                                                and MillerCoors in the United States fall                                                                     competitor’s tap handle or that a retailer
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                        premium brands approach the prices of
                                                into the premium and sub-premium                                                                              replace ABI shelf space with a
                                                beer segments.                                             3 ABI also identifies a ‘‘premium plus’’ segment   competitor’s beer. Further, the Equity
                                                  16. The sub-premium segment, also                     that consists largely of American beers that are      Agreement prohibits an ABI-Affiliated
                                                referred to as the value segment,                       priced somewhat higher than Budweiser and Bud         Wholesaler from compensating its
                                                                                                        Light. Examples of beers that ABI identifies as
                                                generally consists of lager beers, such as              ‘‘premium plus’’ beers include Bud Light Lime, Bud
                                                                                                                                                              salespeople for their sales of competing
                                                Natural and Keystone branded beer, and                  Light Platinum, Bud Light Lime-a-Rita, and            beer brands (such as a dollar-per-case
                                                some ales and malt liquor. Sub-                         Michelob Ultra.                                       incentive) unless it provides the same


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00038   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51468                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                incentives for sales of certain ABI beer                assessment of local demand for their                     40. Market concentration is often one
                                                brands.                                                 beer, local competitive conditions, and               useful indicator of the level of
                                                   29. ABI also provides payments to                    local brand strength. Thus, the price for             competitive vigor in a market and the
                                                ABI-Affiliated Wholesalers based on                     a brand of beer can vary by local market.             likely competitive effects of a merger.
                                                their ABI ‘‘alignment,’’ that is, the                      35. Brewers are able to price                      The more concentrated a market, and
                                                amount of ABI beer that they sell                       differently in different locations, in part           the more a transaction would increase
                                                relative to the beer of ABI competitors.                because arbitrage across local markets is             concentration in a market, the more
                                                For example, under a program known as                   unlikely to occur. Consumers buy beer                 likely it is that the transaction would
                                                the Voluntary Anheuser-Busch                            near their homes and typically do not                 result in harm to consumers by
                                                Incentive for Performance Program, ABI                  travel to other areas to buy beer when                meaningfully reducing competition.
                                                offers ABI-Affiliated Wholesalers that                  prices rise. Also, distributors’ contracts
                                                are 90% or more ‘‘aligned’’ a payment                                                                            41. Concentration in relevant markets
                                                                                                        with brewers and importers contain
                                                for each case-equivalent of ABI beer                    territorial limits and prohibit                       is typically measured by the Herfindahl-
                                                they sell. The size of the payment                      distributors from reselling beer outside              Hirschman Index (or ‘‘HHI,’’ defined
                                                increases based on the ABI-Affiliated                   their territories. In addition, each state            and explained in Appendix B). Markets
                                                Wholesaler’s level of alignment. Only                   has different laws and regulations                    in which the HHI is in excess of 2,500
                                                the sales of very small, local craft beers              regarding beer distribution and sales                 points are considered highly
                                                are excluded from the calculation of an                 that would make arbitrage unfeasible.                 concentrated. See U.S. Dep’t of Justice &
                                                ABI-Affiliated Wholesaler’s level of                                                                          Fed. Trade Comm’n, Horizontal Merger
                                                alignment.                                                 36. A hypothetical monopolist of beer
                                                                                                        sold in each MSA in the United States                 Guidelines ¶ 5.3 (revised Aug. 19, 2010)
                                                IV. The Relevant Market                                 would likely increase its prices in that              (‘‘Merger Guidelines’’), https://
                                                                                                        local market by at least a small but                  www.justice.gov/atr/horizontal-merger-
                                                A. Relevant Product Market                                                                                    guidelines-08192010.
                                                                                                        significant and non-transitory amount.
                                                   30. Beer is a relevant product market                Therefore, these areas are relevant                      42. The beer industry in the United
                                                and line of commerce under Section 7                    geographic markets and ‘‘sections of the              States is highly concentrated and would
                                                of the Clayton Act. Beer is usually made                country’’ within the meaning of Section               become even more concentrated as a
                                                from a malted cereal grain, flavored                    7 of the Clayton Act.
                                                with hops, and brewed via a                                                                                   result of ABI’s proposed acquisition of
                                                                                                           37. Competition also exists among                  SABMiller. Market share estimates
                                                fermentation process. Beer’s taste,
                                                                                                        brewers on a national level, which                    demonstrate that nationally, and in all
                                                alcohol content, image, price, and other
                                                                                                        affects local markets throughout the                  but three local geographic markets
                                                factors make it substantially different
                                                                                                        United States. Decisions about beer                   identified in Appendix A, the post-
                                                from other alcoholic beverages.
                                                   31. Other alcoholic beverages, such as               brewing, marketing, and brand building                acquisition HHI would exceed 2,500
                                                wine and distilled spirits, are not                     typically take place on a national level.             points. In one local market (the Wichita,
                                                sufficiently substitutable to discipline a              In addition, a significant portion of beer            Kansas MSA), the post-acquisition HHI
                                                small but significant and non-transitory                advertising is placed on national                     would be more than 8,900. Moreover,
                                                increase in the price of beer, and                      television, and brewers commonly
                                                                                                                                                              the HHI would increase in every
                                                relatively few consumers would                          compete for national retail accounts.
                                                                                                                                                              relevant geographic market by at least
                                                substantially reduce their beer                         General pricing strategy also typically
                                                                                                                                                              680 points. Based on the resulting HHI
                                                purchases in the event of such a price                  originates at a national level.
                                                                                                                                                              measures of concentration, and the
                                                increase. Therefore, a hypothetical                        38. A hypothetical monopolist of beer
                                                                                                                                                              increase in concentration that would
                                                monopolist producer of beer likely                      sold in the United States would likely
                                                                                                                                                              result from the transaction, ABI’s
                                                would increase its prices by at least a                 increase its prices by at least a small but
                                                                                                                                                              proposed acquisition of SABMiller is
                                                small but significant and non-transitory                significant and non-transitory amount.
                                                                                                        Accordingly, the United States is a                   presumptively anticompetitive. See
                                                amount.
                                                                                                        relevant geographic market under                      Merger Guidelines ¶ 5.3.
                                                B. Relevant Geographic Market                           Section 7 of the Clayton Act.                         B. ABI’s Acquisition of SABMiller
                                                  32. ABI and MillerCoors are the two                                                                         Would Eliminate Head-to-Head
                                                largest brewers in local markets                        V. ABI’s Acquisition of SABMiller Is
                                                                                                        Likely To Result in Anticompetitive                   Competition Between ABI and
                                                throughout the United States. Appendix                                                                        MillerCoors
                                                A lists the 58 MSAs in the United States                Effects
                                                for which reliable data on beer sales are               A. The Relevant Markets Are Highly                      43. Today, ABI and MillerCoors
                                                available. These and the other MSAs in                  Concentrated and the Proposed                         compete directly against each other both
                                                the United States are relevant                          Acquisition Is Presumptively Illegal                  nationally and in every local market in
                                                geographic markets for antitrust                                                                              the United States.
                                                purposes. These local markets currently                   39. The relevant beer markets are
                                                benefit from head-to-head competition                   highly concentrated and would become                    44. ABI’s proposed acquisition of
                                                between ABI and MillerCoors, and in                     significantly more concentrated as a                  SABMiller would give ABI a majority
                                                each local market the proposed                          result of the proposed acquisition. ABI               ownership interest in and 50%
                                                acquisition would likely substantially                  and MillerCoors jointly account for                   governance rights over MillerCoors and
                                                lessen competition.                                     approximately 72% of the national beer                thereby eliminate competition between
                                                                                                        market. In every local market for which
sradovich on DSK3GMQ082PROD with NOTICES




                                                  33. The relevant geographic markets                                                                         the two largest beer brewers in the
                                                for analyzing the effects of the proposed               reliable data are available, ABI and                  United States. Thus, ABI’s acquisition of
                                                acquisition are best defined by the                     MillerCoors have a combined market                    SABMiller would likely substantially
                                                locations of the customers who                          share that ranges from 37% to 94%.                    lessen competition both nationally and
                                                purchase beer, rather than by the                       Indeed, in 18 MSAs, ABI and                           in every local market in the United
                                                locations of breweries.                                 MillerCoors have a combined market                    States, and therefore violate Section 7 of
                                                  34. Brewers develop pricing and                       share of 70% or greater. See Appendix                 the Clayton Act.
                                                promotional strategies based on an                      A.


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00039   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                                                         51469

                                                C. ABI’s Acquisition of SABMiller                                          within each relevant market include: (i)                               entering into or carrying out any other
                                                Would Increase ABI’s Incentive and                                         The substantial time and expense                                       agreement, understanding, or plan by
                                                Ability to Disadvantage High-End Rivals                                    required to build a brand’s reputation;                                which ABI would acquire, be acquired
                                                by Limiting Their Distribution                                             (ii) the substantial sunk costs for                                    by, or merge with SABMiller or
                                                   45. ABI’s proposed acquisition of                                       promotional and advertising activity                                   MillerCoors;
                                                SABMiller would also harm                                                  needed to secure the distribution and                                    3. That the United States be awarded
                                                competition by increasing ABI’s                                            placement of a new entrant’s beer                                      costs in this action; and
                                                incentive and ability to engage in                                         products in retail outlets; (iii) the time
                                                                                                                           and cost of building new breweries and                                   4. That the United States have such
                                                anticompetitive conduct that limits and                                                                                                           other relief as the Court may deem just
                                                impedes the distribution of its high-end                                   other facilities; and (iv) the difficulty of
                                                                                                                           developing an effective network of beer                                and proper.
                                                rivals’ beer. With the elimination of
                                                MillerCoors as a competitive constraint,                                   distributors with incentives to promote                                Dated: July 20, 2016
                                                ABI’s high-end rivals would become a                                       and expand a new entrant’s sales.                                      Respectfully submitted,
                                                                                                                              49. The anticompetitive effects of the                              FOR PLAINTIFF UNITED STATES OF
                                                more important constraint on ABI’s
                                                                                                                           proposed acquisition are not likely to be                              AMERICA:
                                                ability to raise beer prices.
                                                   46. ABI currently encourages ABI-                                       eliminated or mitigated by any                                         llllll/s/llllll
                                                Affiliated Wholesalers to limit their                                      efficiencies the proposed acquisition                                  SONIA K. PFAFFENROTH
                                                sales of the beers of ABI’s high-end                                       may achieve.                                                           (D.C. Bar #467946)
                                                rivals through the Equity Agreement                                        VII. Violation Alleged                                                 Deputy Assistant Attorney General
                                                and ABI’s incentive programs.                                                                                                                     llllll/s/llllll
                                                                                                                              50. The United States hereby                                        JUAN A. ARTEAGA
                                                Consequently, the beers of ABI’s                                           incorporates the allegations of
                                                competitors account for only a small                                                                                                              Deputy Assistant Attorney General
                                                                                                                           paragraphs 1 through 49 above as if set                                llllll/s/llllll
                                                percentage of the sales of many ABI-                                       forth fully herein.
                                                Affiliated Wholesalers. ABI has also                                                                                                              PATRICIA A. BRINK
                                                                                                                              51. The proposed transaction would                                  Director of Civil Enforcement
                                                purchased distributors in states in                                        likely substantially lessen competition
                                                which those purchases are legal,                                                                                                                  llllll/s/llllll
                                                                                                                           in interstate trade and commerce, in                                   ERIC MAHR (D.C. Bar #459350)
                                                allowing ABI directly to limit sales of                                    violation of Section 7 of the Clayton                                  Director of Litigation
                                                ABI’s high-end rivals.                                                     Act, 15 U.S.C. 18, and would likely have
                                                   47. After the proposed acquisition,                                                                                                            llllll/s/llllll
                                                                                                                           the following anticompetitive effects,                                 PETER J. MUCCHETTI (D.C. Bar #463202)
                                                ABI would have a greater incentive and                                     among others:                                                          Chief, Litigation I
                                                ability to invest resources in distributor                                    (a) Head-to-head competition between                                llllll/s/llllll
                                                acquisitions and to use practices that                                     ABI and MillerCoors for beer sales in                                  MICHELLE R. SELTZER * (D.C. Bar #475482)
                                                restrict its rivals’ access to distribution.                               the relevant geographic markets would                                  Assistant Chief, Litigation I
                                                With control over the MillerCoors                                          be eliminated or substantially lessened;                               TRAVIS R. CHAPMAN
                                                brands, ABI could encourage the                                            and                                                                    DAVID C. KELLY
                                                distributors of both ABI brands and                                           (b) competition generally in the                                    JILL C. MAGUIRE (D.C. Bar #979595)
                                                MillerCoors brands to limit their sales of                                 relevant geographic markets for beer                                   DAVID M. STOLTZFUS
                                                high-end rivals’ beer, which would                                         would be substantially lessened.                                       U.S. Department of Justice, Antitrust
                                                likely result in increased beer prices and                                                                                                        Division, Litigation I Section, 450 Fifth Street
                                                fewer choices for consumers.                                               Requested Relief
                                                                                                                                                                                                  NW., Suite 4100, Washington, DC 20530,
                                                                                                                             The United States requests:                                          Telephone: (202) 353–3865, Facsimile: (202)
                                                VI. Absence of Countervailing Factors                                        1. That the proposed acquisition be                                  307–5802, E-mail: michelle.seltzer@
                                                   48. New entry and expansion by                                          adjudged to violate Section 7 of the                                   usdoj.gov.
                                                competitors likely will not be timely                                      Clayton Act, 15 U.S.C. 18;                                             Attorneys for the United States
                                                and sufficient in scope to prevent the                                       2. That Defendants be permanently                                    * Attorney of Record
                                                acquisition’s likely anticompetitive                                       enjoined and restrained from carrying
                                                effects. Barriers to entry and expansion                                   out the proposed transaction or from                                   Appendix A

                                                                                                      RELEVANT GEOGRAPHIC MARKETS AND CONCENTRATION DATA
                                                                                                                                                                                                  Combined           Post-               HHI
                                                                                                  Metropolitan statistical area                                                                     share          acquisition        increase
                                                                                                                                                                                                     (%)              HHI

                                                Wichita, KS ..................................................................................................................................             94              8904              4431
                                                Tulsa, OK .....................................................................................................................................            90              8094              3477
                                                Green Bay, WI .............................................................................................................................                87              7551              3761
                                                Oklahoma City, OK ......................................................................................................................                   83              6985              3013
                                                Peoria/Springfield .........................................................................................................................               80              6465              3148
                                                St. Louis, MO ...............................................................................................................................              79              6268              2343
                                                Milwaukee, WI .............................................................................................................................                78              6105              2303
                                                Salt Lake City, UT .......................................................................................................................                 77              6081              2828
                                                Denver, CO ..................................................................................................................................              76              5916              2903
sradovich on DSK3GMQ082PROD with NOTICES




                                                Omaha, NE ..................................................................................................................................               76              5796              2643
                                                Louisville, KY ...............................................................................................................................             76              5791              2774
                                                Des Moines, IA ............................................................................................................................                75              5694              2614
                                                New Orleans/Mobile ....................................................................................................................                    75              5646              2593
                                                Minneapolis/St Paul .....................................................................................................................                  72              5506              2478
                                                Indianapolis, IN ............................................................................................................................              72              5296              2605
                                                Roanoke, VA ................................................................................................................................               72              5205              2454
                                                Birmingham/Montgom ..................................................................................................................                      71              5115              2303



                                           VerDate Sep<11>2014         18:12 Aug 03, 2016         Jkt 238001       PO 00000       Frm 00040        Fmt 4703      Sfmt 4703       E:\FR\FM\04AUN1.SGM     04AUN1


                                                51470                                   Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                                                          RELEVANT GEOGRAPHIC MARKETS AND CONCENTRATION DATA—Continued
                                                                                                                                                                                                    Combined            Post-                HHI
                                                                                                   Metropolitan statistical area                                                                      share           acquisition         increase
                                                                                                                                                                                                       (%)               HHI

                                                Kansas City, KS ...........................................................................................................................                   70              5027               2328
                                                Memphis, TN ...............................................................................................................................                   69              4909               2085
                                                Cincinnati/Dayton .........................................................................................................................                   69              4841               2350
                                                Tampa/St Petersburg ...................................................................................................................                       69              4832               2091
                                                Knoxville .......................................................................................................................................             68              4763               2237
                                                Spokane, WA ...............................................................................................................................                   68              4760               2316
                                                Toledo ..........................................................................................................................................             68              4699               2163
                                                Charlotte, NC ...............................................................................................................................                 67              4626               2200
                                                Phoenix/Tucson ...........................................................................................................................                    66              4624               2147
                                                Houston, TX .................................................................................................................................                 66              4594               1910
                                                Richmond/Norfolk ........................................................................................................................                     67              4580               2168
                                                Jacksonville, FL ...........................................................................................................................                  66              4513               1805
                                                Dallas/Ft. Worth ...........................................................................................................................                  65              4474               2113
                                                Raleigh/Greensboro .....................................................................................................................                      66              4427               2018
                                                Orlando, FL ..................................................................................................................................                65              4416               1898
                                                Grand Rapids, MI ........................................................................................................................                     65              4326               2053
                                                Las Vegas ....................................................................................................................................                63              4221               1948
                                                Chicago, IL ...................................................................................................................................               63              4157               1838
                                                Nashville, TN ...............................................................................................................................                 64              4155               1958
                                                Boise, ID ......................................................................................................................................              63              4150               1923
                                                Detroit, MI ....................................................................................................................................              62              3995               1891
                                                Columbus, OH .............................................................................................................................                    59              3611               1722
                                                Cleveland, OH .............................................................................................................................                   59              3568               1722
                                                Hartford/Springfield ......................................................................................................................                   57              3552               1442
                                                Albany, NY ...................................................................................................................................                57              3528               1640
                                                Miami/Ft Lauderdale ....................................................................................................................                      53              3367               1274
                                                Los Angeles, CA ..........................................................................................................................                    49              3261               1166
                                                Atlanta, GA ..................................................................................................................................                55              3241               1506
                                                New York .....................................................................................................................................                53              3190               1319
                                                Syracuse, NY ...............................................................................................................................                  54              3179               1400
                                                Portland, OR ................................................................................................................................                 54              3042               1382
                                                Seattle/Tacoma ............................................................................................................................                   51              2878               1323
                                                Boston, MA ..................................................................................................................................                 50              2836               1169
                                                Buffalo/Rochester ........................................................................................................................                    50              2773               1207
                                                Sacramento, CA ..........................................................................................................................                     48              2715               1174
                                                San Diego, CA .............................................................................................................................                   47              2594               1085
                                                Harrisburg/Scranton .....................................................................................................................                     49              2582               1172
                                                Baltimore/Washington ..................................................................................................................                       48              2513               1124
                                                San Fran/Oakland ........................................................................................................................                     41              2251                820
                                                Pittsburgh, PA ..............................................................................................................................                 42              1960                835
                                                Philadelphia, PA ..........................................................................................................................                   37              1556                683



                                                Appendix B                                                                    Markets in which the HHI is in excess                                 Competitive Impact Statement
                                                                                                                            of 2,500 are considered to be highly                                       Pursuant to Section 2(b) of the
                                                Definition of the Herfindahl–Hirschman
                                                                                                                            concentrated. See U.S. Dep’t of Justice &                               Antitrust Procedures and Penalties Act
                                                Index
                                                                                                                            Fed. Trade Comm’n, Horizontal Merger                                    (‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C.
                                                  ‘‘HHI’’ means the Herfindahl-                                             Guidelines ¶ 5.3 (revised Aug. 19, 2010),                               16(b), Plaintiff United States of America
                                                Hirschman Index, a commonly accepted                                        https://www.justice.gov/atr/horizontal-                                 (‘‘United States’’) files this Competitive
                                                measure of market concentration. It is                                      merger-guidelines-08192010.                                             Impact Statement relating to the
                                                calculated by squaring the market share                                     Transactions that increase the HHI by                                   proposed Final Judgment submitted on
                                                of each firm competing in the market                                        more than 200 points in highly                                          July 20, 2016, for entry in this civil
                                                and then summing the resulting                                              concentrated markets presumptively                                      antitrust proceeding.1
                                                numbers. For example, for a market                                          raise antitrust concerns under the
                                                                                                                            guidelines issued by the U.S.                                           I. Nature and Purpose of the Proceeding
                                                consisting of four firms with shares of
                                                30 percent, 30 percent, 20 percent, and                                     Department of Justice and Federal Trade                                    On November 11, 2015, Defendant
                                                20 percent, the HHI is 2,600 (302 + 302                                     Commission. See id.                                                     Anheuser-Busch InBev SA/NV (‘‘ABI’’)
                                                + 202 + 202 = 2,600). The HHI takes into                                                                                                            agreed to acquire Defendant SABMiller
                                                                                                                            United States District Court for the
                                                account the relative size distribution of                                                                                                           plc (‘‘SABMiller’’) in a transaction
                                                                                                                            District of Columbia
sradovich on DSK3GMQ082PROD with NOTICES




                                                the firms in a market and approaches                                                                                                                valued at $107 billion. The United
                                                                                                                              United States of America, Plaintiff, v.                               States filed a civil antitrust Complaint
                                                zero when a market consists of a large                                      Anheuser-Busch InBEV SA/NV, and                                         against ABI and SABMiller (collectively,
                                                number of small firms. The HHI                                              SABMILLER plc, Defendants.                                              ‘‘Defendants’’) on July 20, 2016, seeking
                                                increases both as the number of firms in
                                                the market decreases and as the                                             CASE NO.: 1:16–cv–01483
                                                                                                                                                                                                      1 Capitalized terms not otherwise defined herein
                                                disparity in size between those firms                                       JUDGE: Emmet G. Sullivan                                                have the meaning ascribed to them in the proposed
                                                increases.                                                                  FILED: 07/20/2016                                                       Final Judgment.



                                           VerDate Sep<11>2014         18:12 Aug 03, 2016          Jkt 238001       PO 00000       Frm 00041        Fmt 4703       Sfmt 4703       E:\FR\FM\04AUN1.SGM      04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                                    51471

                                                to enjoin the proposed acquisition. The                    • Acquiring a distributor if the                   II. Description of the Events Giving Rise
                                                Complaint alleges that this proposed                    acquisition would cause more than 10%                 to the Alleged Violation
                                                transaction will likely lessen                          of ABI’s beer in the United States to be
                                                                                                                                                              A. The Defendants and the Proposed
                                                competition substantially in the U.S.                   sold through ABI-owned distributors;
                                                                                                                                                              Transaction
                                                beer industry—an industry in which                         • Prohibiting or impeding a
                                                millions of U.S. consumers spend over                                                                            ABI is a corporation organized and
                                                                                                        distributor that sells ABI’s beer from
                                                $100 billion per year—in violation of                                                                         existing under the laws of Belgium, with
                                                                                                        using its best efforts to sell, market,
                                                Section 7 of the Clayton Act, 15 U.S.C.                                                                       headquarters in Leuven, Belgium. ABI
                                                                                                        advertise, promote, or secure retail                  brews and markets more beer sold in the
                                                18.                                                     placement for rivals’ beers, including
                                                   Specifically, the Complaint alleges                                                                        United States than any other company,
                                                                                                        the beers of high-end brewers;                        accounting for approximately 47% of
                                                that this proposed transaction will
                                                reduce competition by eliminating                          • Providing incentives or rewards to               beer sales nationally.2 ABI owns and
                                                head-to-head competition between the                    a distributor who sells ABI’s beer based              operates 19 breweries in the United
                                                two largest beer brewers in the United                  on the percentage of ABI beer the                     States and over 40 major beer brands
                                                States—ABI and MillerCoors LLC                          distributor sells as compared to the                  sold in the United States, including Bud
                                                (‘‘MillerCoors’’)—both nationally and in                distributor’s sales of the beers of ABI’s             Light (the highest-selling brand in the
                                                every local market in the United States.                rivals;                                               United States) and other popular
                                                The Complaint also alleges that the                        • Conditioning any agreement or                    brands, such as Budweiser, Busch,
                                                elimination of competition between ABI                  program with a distributor that sells                 Michelob, Natural Light, Stella Artois,
                                                and MillerCoors will increase ABI’s                     ABI’s beer on the fact that it sells ABI’s            Shock Top, and Beck’s.
                                                incentive and ability to disadvantage its               rivals’ beer outside of the geographic                   SABMiller is a corporation organized
                                                remaining rivals—in particular, brewers                 area in which it sells ABI’s beer;                    and existing under the laws of the
                                                of high-end beers that serve as an                                                                            United Kingdom, with its headquarters
                                                                                                           • Exercising its rights over distributor           in London, England. In the United
                                                important constraint on ABI’s ability to
                                                                                                        management and ownership based on a                   States, SABMiller operates through its
                                                raise its beer prices—by limiting or
                                                                                                        distributor’s sales of ABI’s rivals’ beers;           ownership interest in MillerCoors.
                                                impeding the distribution of their beers.
                                                As detailed in the Complaint, these                        • Requiring a distributor to report                MillerCoors is a limited liability
                                                anticompetitive effects likely would                    financial information associated with                 company organized and existing under
                                                result in higher beer prices and fewer                  the sale of ABI’s rivals’ beers;                      the laws of the State of Delaware, with
                                                choices for U.S. beer consumers.                           • Requiring that a distributor who                 its principal place of business in
                                                   Simultaneously with the filing of the                sells ABI’s beer offer its sales force the            Chicago, Illinois. MillerCoors is a joint
                                                Complaint, the United States filed a                    same incentives for selling ABI’s beer                venture between SABMiller and Molson
                                                Hold Separate Stipulation and Order                     when the distributor promotes the beers               Coors Brewing Company (‘‘Molson
                                                (‘‘Hold Separate Stipulation and Order’’)               of ABI’s rivals with sales incentives; and            Coors’’). SABMiller and Molson Coors
                                                and a proposed Final Judgment, which                                                                          have, respectively, a 58% and 42%
                                                seek to prevent the transaction’s likely                   • Consummating non-reportable                      ownership interest in and equal
                                                anticompetitive effects.                                acquisitions of beer brewers—including                governance rights over MillerCoors.
                                                   As detailed below, the proposed Final                craft brewers—without providing the                      MillerCoors is the second-largest
                                                Judgment requires ABI to divest                         United States with advance notice and                 brewing company in the United States,
                                                SABMiller’s equity and ownership stake                  an opportunity to assess the                          accounting for 25% of beer sales
                                                in MillerCoors, which is the joint                      transaction’s likely competitive effects.             nationally. MillerCoors owns and
                                                venture through which SABMiller                         These provisions will help ensure that                operates 12 breweries in the United
                                                conducts substantially all of its                       U.S. beer consumers receive the                       States, and has the sole right to produce
                                                operations in the United States, as well                products they want at competitive                     and sell in the United States more than
                                                as certain other assets related to                      prices and that ABI is not able to                    40 brands of beer, including Coors Light
                                                MillerCoors’ business and the Miller-                   disadvantage its rivals in their efforts to           and Miller Lite, the second- and fourth-
                                                branded beer business outside of the                    compete for consumer demand.                          highest selling beer brands in the United
                                                United States. The divestiture will not                                                                       States. MillerCoors also has the right to
                                                only maintain MillerCoors as an                           Finally, under the terms of the Hold                produce and sell in the United States
                                                independent competitor, but will                        Separate Stipulation and Order,                       other popular brands of beer, such as
                                                protect MillerCoors’ competitiveness by                 Defendants will take certain steps to                 Miller Genuine Draft, Coors Banquet,
                                                giving MillerCoors (or its majority                     ensure that, pending the ordered                      and Blue Moon. In addition,
                                                owner) (i) perpetual, royalty-free                      divestiture, MillerCoors will continue to             MillerCoors has the exclusive right to
                                                licenses to products for which it                       be operated as an economically viable,                import into and sell in the United States
                                                currently must pay royalties, and (ii)                  ongoing business concern and that all                 certain beer brands owned by
                                                ownership of the international rights to                divestiture assets will be preserved and              SABMiller, including Peroni, Grolsch,
                                                the Miller brands of beer.                              will be independent from, and not                     and Pilsner Urquell.
                                                   To further help preserve and promote                 influenced by, ABI.                                      At the same time that ABI agreed to
                                                competition in the U.S. beer industry,                    The United States and Defendants                    acquire complete ownership of
                                                the proposed Final Judgment (i) imposes                 have stipulated that the proposed Final               SABMiller, ABI also agreed to divest to
                                                certain restrictions on ABI’s distribution              Judgment may be entered after                         Molson Coors (1) SABMiller’s equity
                                                practices and ownership of distributors,                compliance with the APPA. Entry of the
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              and ownership stake in MillerCoors; (2)
                                                and (ii) requires ABI to provide the                    proposed Final Judgment would                         perpetual, royalty-free licenses to
                                                United States with notice of future                     terminate this action, except that the
                                                acquisitions, including acquisitions of                 Court would retain jurisdiction to                      2 National market shares are based on dollar-sales

                                                beer distributors and craft brewers, prior              construe, modify, or enforce the                      data from IRI, a market research firm, whose data
                                                                                                                                                              are commonly used by industry participants. The
                                                to their consummation. Among other                      provisions of the proposed Final                      shares reflect only off-premise sales. ABI accounts
                                                things, the proposed Final Judgment                     Judgment and to punish violations                     for approximately 35% of dollar sales of beer made
                                                prohibits ABI from:                                     thereof.                                              only through grocery stores.



                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00042   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51472                         Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                import, manufacture, distribute, market,                 United States is brewed by ABI and                   their competitive behavior, possibly to
                                                and sell the Import Products, which are                  MillerCoors, which own most of the                   the extent where they behaved as a
                                                SABMiller brands that are imported by                    popular premium and sub-premium                      single, profit-maximizing entity.
                                                MillerCoors for sale in the United                       brands. But high-end brands—in                         The result would be a combination of
                                                States; 3 (3) perpetual, royalty-free                    particular, Mexican imports and craft                the two largest beer brewers in the
                                                licenses to manufacture, distribute,                     brands—are increasingly gaining market               United States, leaving only a fringe of
                                                market, and sell the Licensed Products,                  share. This market trend is increasing               competitors with substantially smaller
                                                which are brands currently                               the competition faced by ABI and                     market shares than ABI and
                                                manufactured under contract in the                       MillerCoors and the choices available to             MillerCoors. ABI and MillerCoors
                                                United States by MillerCoors under                       consumers.                                           account for more than 70% of beer sold
                                                royalty-bearing licenses with                               Both national and local geographic                in the United States. After the proposed
                                                SABMiller; (4) all rights, title, and                    markets exist in the beer industry. At               acquisition, ABI would have a
                                                interests in Miller-Branded Products                     the local level, demand for beer is                  commanding market share ranging from
                                                outside the United States; and (5)                       driven by the locations of the customers             37% to 94% in every local U.S. market
                                                certain tangible and intangible assets                   who purchase beer, rather than by the                for which reliable data are available.5 In
                                                related to the manufacture, distribution,                locations of the breweries that brew it.             18 local markets, ABI and MillerCoors
                                                marketing, and sale of Miller-Branded                    Beer brewers also make many pricing                  would have a combined share of 70% or
                                                Products outside of the United States.                   and promotional decisions at the local               more.
                                                The transaction between ABI and                          level, reflecting local brand preferences
                                                                                                                                                              3. Beer Distribution in the United States
                                                Molson Coors is contingent upon ABI                      and demand, demographics, and other
                                                completing its acquisition of SABMiller.                 competitive conditions and factors,                     Effective distribution is important for
                                                                                                         which can vary significantly from one                a brewer to be competitive in the U.S.
                                                B. The Competitive Effects of the                        local market to another. This is                     beer industry. Many states require large
                                                Transaction on the Market for Beer in                    sustainable in part because arbitrage                brewers to use independent distributors,
                                                the United States                                        across local markets is unlikely to occur.           and these distributors typically have
                                                1. Relevant Markets                                         Important competitive decisions,                  exclusive and perpetual rights to sell the
                                                                                                         however, are also made at the national               brands they carry within a particular
                                                   Beer is a relevant product market                                                                          territory. Most brewers use distributors
                                                                                                         level. At the national level, large beer
                                                under Section 7 of the Clayton Act. Beer                                                                      to merchandise, sell, and deliver beer to
                                                                                                         companies, such as ABI and
                                                is usually made from malted cereal                                                                            retailers. Those retailers are primarily
                                                                                                         MillerCoors, make competitive
                                                grain, flavored with hops, and brewed                                                                         grocery stores, large retailers (such as
                                                                                                         decisions and develop strategies
                                                via a fermentation process. Wine,                                                                             Target and Walmart), convenience
                                                                                                         regarding product development,
                                                distilled liquor, and other alcoholic or                                                                      stores, liquor stores, restaurants, and
                                                                                                         marketing, and brand building.
                                                non-alcoholic beverages do not                                                                                bars. Retailers, in turn, sell beer to
                                                                                                         Moreover, large beer brewers typically
                                                substantially constrain the prices of                                                                         consumers.
                                                                                                         create and implement national pricing
                                                beer, and a hypothetical monopolist in                                                                           ABI beers are distributed both through
                                                                                                         strategies, place a significant portion of
                                                the beer market could profitably raise                                                                        ABI-owned distributors and through
                                                                                                         beer advertising on national television,
                                                prices.                                                                                                       distributors that are not owned by ABI
                                                   Beer brewers generally categorize beer                and compete for national retail
                                                                                                         accounts.                                            but who sell large volumes of ABI beer,
                                                into different segments based primarily
                                                                                                                                                              including the Budweiser and Bud Light
                                                on price. Beers in the United States can                 2. Competitive Effects of Increased                  brands (‘‘ABI-Affiliated Wholesalers’’).
                                                generally be grouped into three                          Concentration in the Relevant Markets                ABI beer brands account for
                                                segments: Sub-premium, premium, and                         The beer industry in the United States            approximately 90% of the volume of the
                                                high-end.4 However, beers in different                   is highly concentrated and would                     beer sold by ABI-Affiliated Wholesalers.
                                                segments—particularly those in adjacent                  become significantly more so if ABI                  In spite of many state laws requiring
                                                segments—can compete with each other                     were allowed to acquire SABMiller,                   that beer distributors be independent of
                                                under certain circumstances. For                         including its ownership interest in                  brewers, ABI exerts considerable
                                                example, the prices of high-end beers                    MillerCoors. As a majority owner with                influence over ABI-Affiliated
                                                can constrain the prices of premium                      equal governance rights over
                                                beers because some consumers of                                                                               Wholesalers, in part by requiring them
                                                                                                         MillerCoors, ABI would be able to direct             to enter into a Wholesaler Equity
                                                premium beers may trade up to high-                      the competitive behavior of MillerCoors,
                                                end beers when the prices of premium                                                                          Agreement (‘‘Equity Agreement’’) with
                                                                                                         leading to a loss of competition between             ABI.
                                                beers approach the prices of high-end
                                                                                                         the firms both nationally and in every                  The Equity Agreement contains a
                                                beers.
                                                                                                         local market in the United States.                   number of provisions that are designed
                                                   Most sales of beer in the United States
                                                are of premium and sub-premium                           Although Molson Coors would continue                 to encourage ABI-Affiliated Wholesalers
                                                brands. The vast majority of premium                     to own a minority equity interest in                 to sell and promote ABI’s beer brands
                                                and sub-premium beer sold in the                         MillerCoors and have equal governance                instead of the beer brands of ABI’s
                                                                                                         rights, Molson Coors’ interest in                    competitors. For example, the Equity
                                                  3 For purposes of this Competitive Impact              MillerCoors would not eliminate the                  Agreement prohibits an ABI-Affiliated
                                                Statement, the United States includes the fifty states   anticompetitive effects that would result            Wholesaler from requesting that a bar
                                                of the United States of America, the District of         from the acquisition. After the                      replace an ABI tap handle with a
                                                Columbia, Puerto Rico, and all United States             acquisition, ABI would have the right to
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              competitor’s tap handle or that a retailer
                                                military bases located therein.
                                                  4 The high-end segment is composed of imports
                                                                                                         appoint half of the board members of                 replace ABI shelf space with a
                                                and craft brands. ABI also identifies a ‘‘premium        MillerCoors, who would have the same
                                                plus’’ segment that consists largely of American         governance rights as other board                       5 The Complaint identifies 58 metropolitan

                                                beers that are priced somewhat higher than               members over MillerCoors’ business.                  statistical areas (‘‘MSAs’’), as defined by IRI, for
                                                Budweiser and Bud Light. Examples of beers that                                                               which reliable data are available. The market shares
                                                ABI identifies as ‘‘premium plus’’ beers include
                                                                                                         Given that ABI would have significant                for these MSAs are based on dollar-sales data from
                                                Bud Light Lime, Bud Light Platinum, Bud Light            influence over MillerCoors, ABI and                  IRI and reflect sales of beer only through grocery
                                                Lime-a-Rita, and Michelob Ultra.                         MillerCoors would be able to coordinate              stores.



                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00043   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                            51473

                                                competitor’s beer. Further, the Equity                  to be considerably smaller and                        certain countries while Molson Coors
                                                Agreement prohibits an ABI-Affiliated                   significantly less efficient distributors.            provides such services to ABI in other
                                                Wholesaler from compensating its                        Indeed, some of these alternative                     countries. ABI and MillerCoors have no
                                                salespeople for their sales of competing                distributors are not even primarily                   comparable business arrangements.
                                                beer brands (such as a dollar-per-case                  focused on selling beer. For instance,                   The change in ownership of
                                                incentive) unless it provides the same                  these distributors may be more focused                MillerCoors—from a joint venture
                                                incentives for sales of certain ABI beer                on selling a broad range of wine and                  between SABMiller and Molson Coors
                                                brands. The expense of extending a per-                 liquor while only offering a small                    to a wholly owned subsidiary of Molson
                                                case sales incentive to the large volume                selection of beers. Moreover, beer                    Coors—will increase the number of
                                                of ABI brands effectively limits an ABI-                distributors who are not affiliated with              highly concentrated markets across the
                                                Affiliated Wholesaler’s ability to                      ABI or MillerCoors typically service                  world in which ABI competes directly
                                                promote brands of Third-Party Brewers                   fewer retail establishments (or exclude               against Molson Coors. By increasing the
                                                through targeted sales incentives.                      entire classes of retailers), visit the               number of markets in which ABI and
                                                   ABI also promotes distributor                        establishments that they do service less              Molson Coors compete, the divestiture
                                                exclusivity by providing payments to                    frequently, and provide fewer resources               of SABMiller’s interest in MillerCoors to
                                                ABI-Affiliated Wholesalers based on                     (such as financial support and sales                  Molson Coors could facilitate
                                                their ABI ‘‘alignment,’’ that is, the                   associates) than the ABI-Affiliated                   coordination between ABI and Molson
                                                amount of ABI beer that they sell                       Wholesaler or the MillerCoors-Affiliated              Coors in the United States. For example,
                                                relative to the beer of ABI’s competitors.              Wholesaler that operates in the same                  this multi-market contact could lead
                                                For example, under a program known as                   territory.                                            Molson Coors and ABI to be more
                                                the Voluntary Anheuser-Busch                               Unlike ABI, MillerCoors does not                   accommodating to each other in the
                                                Incentive for Performance Program, ABI                  include in its agreements with                        United States in order to avoid
                                                offers ABI-Affiliated Wholesalers that                  MillerCoors-Affiliated Wholesalers any                provoking a competitive response
                                                are 90% or more ‘‘aligned’’ a payment                   provisions that discourage or impede                  outside the United States or disrupting
                                                for each case-equivalent of ABI beer                    the promotion and sales of the brands of              their cooperative business arrangements
                                                they sell. The size of the payment                      Third-Party Brewers. There is, however,               in other countries. Coordination could
                                                increases based on the ABI-Affiliated                   a practical limit to the number of brands             also be facilitated by the existing and
                                                Wholesaler’s level of alignment. Only                   that any distributor can effectively carry            newly-created cooperative agreements
                                                the sales of very small, local craft beers              and promote to its retail accounts. As                between ABI and Molson Coors around
                                                are excluded from the calculation of an                 the number of brands carried by a                     the world.
                                                ABI-Affiliated Wholesaler’s level of                    distributor increases, the distributor                   If the divestiture facilitates
                                                alignment. This allows ABI-Affiliated                   may incur costs to manage the resulting               coordination between ABI and Molson
                                                Wholesalers to carry small, local craft                 complexities, and the distributor may                 Coors, it would also increase ABI’s
                                                beers but decreases or eliminates the                   become less focused on promoting the                  incentive to limit competition from its
                                                payments to ABI-Affiliated Wholesalers                  smaller brands that it carries.                       high-end rivals. This is because
                                                that add craft beers that grow above a                  Consequently, the presence of a                       competition from high-end rivals would
                                                certain size or expand outside of a                     MillerCoors-Affiliated Wholesaler or a                become an even more important
                                                certain geographic area. Thus, this                     small distributor in a market does not                constraint on the ability of ABI and
                                                incentive program has the effect of                     eliminate the advantages that many                    Molson Coors to increase the prices of
                                                impeding rival craft brewers from                       independent craft brewers would                       their beers across all segments. As a
                                                growing large enough to have the scale                  receive from having access to ABI-                    result, following a divestiture to Molson
                                                to better compete with ABI.                             Affiliated Wholesalers.                               Coors, ABI may have a greater incentive
                                                   MillerCoors beers are distributed                                                                          to impede the growth and reduce the
                                                almost exclusively through distributors                 4. The Proposed Divestiture Alone                     competitiveness of its high-end rivals by
                                                that are not owned by MillerCoors but                   Would Not Eliminate the Likely                        limiting their access to effective and
                                                who sell large volumes of MillerCoors                   Competitive Effects of the Transaction                efficient distribution. The extent to
                                                beer (‘‘MillerCoors-Affiliated                          on Beer Distribution                                  which craft and other brewers in the
                                                Wholesalers’’). MillerCoors brands                         Even though ABI has proposed to                    United States are able to compete with
                                                account for approximately 65% of the                    divest SABMiller’s interest in                        ABI and Molson Coors will thus affect
                                                volume of the beer sold by MillerCoors-                 MillerCoors to Molson Coors, the                      the likelihood of the divestiture to
                                                Affiliated Wholesalers.                                 divestiture to Molson Coors likely                    Molson Coors leading to unilateral or
                                                   Other than MillerCoors and ABI, most                 would not eliminate the anticompetitive               coordinated anticompetitive effects.
                                                brewers do not have a distribution                      effects of the transaction on beer
                                                network affiliated with their brands.                   distribution, which, as noted above,                  5. Entry and Expansion
                                                Consequently, the majority of other                     plays an important role in a brewer’s                    Neither entry into the national or
                                                brewers’ beers are distributed either by                ability to effectively compete in the U.S.            local beer markets in the United States,
                                                the ABI-Affiliated Wholesaler or the                    beer industry.                                        nor any repositioning of existing
                                                MillerCoors-Affiliated Wholesaler in a                     Presently, MillerCoors competes                    brewers, would undo the likely
                                                given geographic area. For example, in                  against ABI only in the United States.                anticompetitive harm from ABI’s
                                                2014, 85% or more of the beer sold in                   Molson Coors, however, competes with                  acquisition of SABMiller. Many
                                                the United States was distributed by a                  ABI in multiple countries throughout                  MillerCoors brands compete directly
                                                                                                        the world—most significantly in                       against ABI brands in terms of their
sradovich on DSK3GMQ082PROD with NOTICES




                                                Miller-Coors Affiliated Wholesaler, an
                                                ABI-Affiliated Wholesaler, or a                         Canada, where ABI and Molson Coors                    brand position, reputation, taste profile,
                                                distributor owned by ABI.                               are the two largest brewers and together              well-established marketing, acceptance
                                                   Although some brewers use                            account for a large share of beer sales.              by a wide range of consumers, and
                                                alternative means to sell their beer to                 ABI and Molson Coors also have certain                robust distribution networks. ABI and
                                                retailers, their only alternatives to an                cooperative arrangements in Eastern                   MillerCoors brands of beer are available
                                                ABI-Affiliated Wholesaler or                            Europe. For example, ABI brews and                    in almost every establishment in which
                                                MillerCoors-Affiliated Wholesaler tend                  distributes Molson Coors’ beers in                    consumers can purchase or consume


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00044   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51474                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                beer. ABI and MillerCoors also compete                  a competitor in the national and local                manufacture, distribution, marketing,
                                                directly on a national level for                        beer markets in the United States. Those              and sale of Miller-Branded Products
                                                advertising and promotions, such as                     assets include SABMiller’s full interest              outside of the United States; (3) all other
                                                sports sponsorships. Any entrant would                  in MillerCoors and the intangible assets              tangible and intangible assets of
                                                face enormous costs attempting to                       necessary to permit Molson Coors to                   SABMiller and its subsidiaries (other
                                                replicate these assets and would, at best,              brew and import the Import Products for               than MillerCoors and its subsidiaries)
                                                take many years to succeed.                             sale in the United States. The proposed               that are primarily related to the Miller-
                                                   Building nationally-recognized and                   divestiture also gives Molson Coors full              Branded Products, both inside and
                                                accepted brands, which retailers will                   rights to the Miller-Branded Products, as             outside the United States; and (4)
                                                support with feature and display                        well as the tangible and intangible                   perpetual, fully paid-up, royalty-free
                                                activity, is difficult, expensive, and time             assets that are primarily related to the              licenses to any intellectual property and
                                                consuming. Although new beer                            manufacture, distribution, marketing,                 any other intangible assets required to
                                                breweries open frequently, new brewers                  and sale of the Miller-Branded Products               permit the acquirer of the divested
                                                face significant barriers to achieving                  outside the United States.                            assets to manufacture, import,
                                                efficient scale. In addition, ABI’s                        The distribution-related relief seeks to           distribute, market, or sell the Import
                                                distribution practices hinder new                       prohibit ABI from rewarding,                          Products and Licensed Products in the
                                                entrants from accessing effective and                   penalizing, or otherwise conditioning its             United States. Molson Coors will also
                                                efficient distribution, which prevents                  relationships with ABI-Affiliated                     have a one-year period in which to
                                                them from growing to a scale that allows                Wholesalers, or any employees or agents               negotiate to hire employees of
                                                significant economies in production.                    of the wholesalers, based on the                      SABMiller whose primary responsibility
                                                While consumers have undoubtedly                        wholesalers’ sale, marketing,                         is the production, manufacture,
                                                benefited from the launch of many                       advertising, promotion, or retail                     importation, distribution, marketing, or
                                                individual craft and specialty beers in                 placement of rivals’ beers—including                  sale of Miller-Branded Products.
                                                the United States, the multiplicity of                  ABI’s high-end rivals. For example, the                  The proposed divestiture will permit
                                                such brands does not replace the nature,                remedy seeks to prevent ABI from using                MillerCoors to continue as a viable
                                                scale, and scope of the existing                        its relationship with ABI-Affiliated                  competitor in the relevant beer markets
                                                competition between ABI and                             Wholesalers to disadvantage, or                       independent of ABI. After the
                                                MillerCoors, which would be eliminated                  maintain or erect barriers to scale for,              divestiture, Molson Coors will own all
                                                by the proposed transaction.                            ABI’s high-end rivals. Under the                      assets in the United States that are used
                                                                                                        proposed Final Judgment, ABI-Affiliated               in the production, marketing, and sale
                                                III. Explanation of the Proposed Final                  Wholesalers should be free to make                    of the MillerCoors brands of beer that
                                                Judgment                                                independent decisions regarding their                 are brewed in the United States. Under
                                                   The proposed Final Judgment                          sale of ABI’s high-end rivals’ beers. By              the proposed divestiture, Molson Coors
                                                contains a remedy designed to eliminate                 removing obstacles to effective                       will also obtain the international rights
                                                the likely anticompetitive effects of the               distribution, competition in the high-                to brew and export the Miller-Branded
                                                acquisition in the national market for                  end beer segment can continue to serve                Products. With respect to two beer
                                                beer in the United States and local                     as an important constraint on the ability             brands, Redd’s and Foster’s, MillerCoors
                                                markets throughout the United States.                   of ABI and MillerCoors (Molson Coors)                 now produces those brands for sale in
                                                The proposed Final Judgment                             to raise—either unilaterally or through               the United States under royalty-bearing
                                                contemplates that the divested assets                   coordination—beer prices in the United                licenses from SABMiller. The
                                                will be sold to Molson Coors, which, on                 States.                                               divestiture provides that Molson Coors
                                                November 11, 2015, entered into an                         In short, the remedy seeks to preserve             will have perpetual, fully paid-up,
                                                agreement with ABI to acquire the                       and promote competition in the U.S.                   royalty-free licenses and any other
                                                divested assets. If the divestiture to                  beer industry by maintaining                          intangible assets required to
                                                Molson Coors should fail to close, ABI                  MillerCoors as an independent                         manufacture and sell those brands in
                                                would be required to make the same                      competitor and by reducing the                        the United States. MillerCoors now has
                                                divestiture to another acquirer                         influence of ABI on the distribution of               the right to import and sell in the
                                                acceptable to the United States, in its                 beer in the United States. In addition,               United States certain SABMiller brands
                                                sole discretion, for the purpose of                     the proposed Final Judgment also                      that are brewed internationally. The
                                                enabling that alternative acquirer to                   provides for supervision by this Court                proposed divestiture provides that
                                                assume SABMiller’s role with respect to                 and the United States of the transition               Molson Coors will have perpetual,
                                                the ownership and governance of                         services and supply arrangements                      royalty-free licenses to brew those
                                                MillerCoors.6                                           between ABI and Molson Coors. Those                   brands and import them into the United
                                                   The divestiture required by the                      arrangements will allow Molson Coors                  States.
                                                proposed Final Judgment will preserve                   time to establish the ability to brew the                The European Commission also
                                                MillerCoors as an independent and                       Import Products and Miller-Branded                    investigated the effects of ABI’s
                                                economically viable competitor and will                 Products independently of ABI. The                    proposed acquisition of SABMiller. To
                                                strengthen MillerCoors by giving it                     remedy also provides for supervision of               resolve concerns raised by the European
                                                valuable rights that it does not currently              ABI’s compliance with the restrictions                Commission, ABI is divesting
                                                have. The divestiture includes assets                   on its distribution practices.                        essentially all of the European business
                                                that are necessary to preserve or                                                                             that it would have acquired from
                                                                                                        A. The Divestiture
sradovich on DSK3GMQ082PROD with NOTICES




                                                enhance the viability of MillerCoors as                                                                       SABMiller. ABI has already agreed to
                                                                                                          The proposed Final Judgment requires                sell to Asahi Group, a Japanese brewer,
                                                  6 The remainder of the explanation of the             ABI, within 90 days after entry of the                the Peroni, Grolsch, and Meantime
                                                proposed Final Judgment refers to the proposed          Hold Separate Stipulation and Order by                brands of beer. ABI has also agreed to
                                                acquirer as Molson Coors. If Molson Coors does not      the Court, to divest (1) SABMiller’s                  divest SABMiller’s business in the
                                                acquire the Divestiture Assets, the proposed Final
                                                Judgment will apply to another Acquirer in the
                                                                                                        equity and ownership stake in                         Czech Republic, Hungary, Poland, and
                                                same manner as described with respect to Molson         MillerCoors; (2) all raw material                     Romania, including the Pilsner Urquell
                                                Coors.                                                  inventory exclusively related to the                  brand of beer. The proposed Final


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00045   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                                     51475

                                                Judgment, however, requires that ABI                    transition services and interim supply                 particular, Section V.D precludes ABI
                                                divest the U.S. rights to the Import                    agreements do not apply to                             from, among other things:
                                                Brands—including Peroni, Grolsch, and                   arrangements, if any, between Molson                      • Conditioning the availability of
                                                Pilsner Urquell—to Molson Coors,                        Coors and the new owner of the brand                   ABI’s beer to an ABI-Affiliated
                                                notwithstanding the divestiture of the                  outside of the United States.                          Wholesaler on the wholesaler’s sales,
                                                ex-U.S. rights to those brands to other                                                                        marketing, advertising, promotion, or
                                                buyers.                                                 C. Limits on ABI’s Distribution Practices
                                                                                                                                                               retail placement of Third-Party Brewers’
                                                B. Transition Services and Interim                         Section V.A of the proposed Final                   beers;
                                                                                                        Judgment requires ABI and SABMiller                       • Conditioning the prices, services,
                                                Supply Agreements
                                                                                                        to agree—and for ABI to further require                product support, rebates, discounts, buy
                                                   Sections IV.I and IV.J of the Final                  Molson Coors to agree—not to cite the                  backs, or other terms and conditions of
                                                Judgment require ABI to enter into one                  transaction or the required divestiture as             sale of ABI’s beer that are offered to an
                                                or more transition services agreements                  a basis for modifying, renegotiating, or               ABI-Affiliated Wholesaler based on its
                                                and interim supply agreements with                      terminating any contract with any                      sales, marketing, advertising,
                                                Molson Coors. The transition services                   Distributor. This language prevents ABI,               promotion, or retail placement of Third-
                                                agreements require ABI to provide                       SABMiller, and Molson Coors from                       Party Brewers’ beers;
                                                Molson Coors with services with respect                 claiming that either the transaction or                   • Conditioning any agreement or
                                                to the development, production,                         the divestiture is a change of ownership               program with an ABI-Affiliated
                                                servicing, importing, distributing,                     or control that would otherwise enable                 Wholesaler on the fact that it sells
                                                marketing, and selling of Miller-                       ABI or Molson Coors to make changes                    Third-Party Brewers’ beers outside of
                                                Branded Products outside of the United                  to their distribution contracts,                       the geographic area in which it sells ABI
                                                States. The transition services                         potentially limiting their rival brewers’              beer;
                                                agreements will allow Molson Coors to                   path to market.                                           • Requiring an ABI-Affiliated
                                                operate the business of selling Miller-                                                                        Wholesaler to offer any incentive for
                                                                                                           Section V.B prevents ABI from
                                                Branded Products outside of the United                                                                         selling ABI beer in connection with or
                                                                                                        acquiring any equity interests in, or
                                                States in a manner that is consistent                                                                          in response to any incentive that the
                                                                                                        ownership or control of the assets of, a
                                                with SABMiller’s current operation of                                                                          wholesaler offers for selling Third-Party
                                                                                                        Distributor if such acquisition would
                                                that business. The interim supply                                                                              Brewers’ beers; and
                                                                                                        transform the Distributor into an ABI-
                                                agreements will require ABI to supply                                                                             • Preventing an ABI-Affiliated
                                                beer such that Molson Coors can                         Owned Distributor, and if more than
                                                                                                        10% of ABI’s beer sold in the United                   Wholesaler from using best efforts to
                                                continue to import SABMiller brands of                                                                         sell, market, advertise, or promote any
                                                beer to the United States and can                       States, measured by volume, would be
                                                                                                        sold through ABI-Owned Distributors                    Third-Party Brewer’s beers, which may
                                                operate the Miller International                                                                               be defined as efforts designed to achieve
                                                Business.                                               after such acquisition. The United
                                                                                                        States’ investigation revealed that ABI-               and maintain the highest practicable
                                                   The transition services and interim
                                                                                                        Owned Distributors typically distribute                sales volume and retail placement of the
                                                supply agreements are time-limited to
                                                                                                        only brands owned by or affiliated with                Third Party Brewer’s beers in a
                                                assure that Molson Coors will become
                                                                                                        ABI, and that ABI-Owned Distributors                   geographic area.
                                                fully independent of ABI with respect to
                                                the supply of the Import Products and                   currently sell approximately 9% of                        In sum, Section V.D seeks to ensure
                                                the Miller International Business as                    ABI’s beer in the United States. This                  that ABI cannot use distribution-related
                                                soon as practicable. As such, in                        provision limits ABI’s ability to acquire              practices and incentives to prevent or
                                                conjunction with the nondisclosure of                   Distributors and then cause the                        limit Third-Party Brewers from securing
                                                information provisions in the proposed                  Distributors to cease to promote or to                 the distribution necessary to effectively
                                                Final Judgment, the terms of the                        expel rival brands from the Distributors’              compete with ABI. This is especially
                                                transition services and interim supply                  portfolios—thus preventing or impeding                 important with respect to brewers of
                                                agreements are intended to prevent the                  a rival from selling its beer through a                high-end beers, which, as detailed above
                                                vertical supply arrangements from                       Distributor or forcing the rival to find a             and in the Complaint, have served as an
                                                causing competitive harm in the near                    different and potentially less effective               important constraint on ABI’s ability to
                                                term. The proposed Final Judgment                       path to market.                                        raise prices of its beers.
                                                subjects these agreements, including                       Section V.D prohibits ABI from                         It should be noted, however, that the
                                                any extensions, to monitoring by a                      instituting or continuing any practices                proposed Final Judgment—including
                                                trustee appointed by the United States                  or programs that impede or                             Section V.D—does not prevent ABI from
                                                and requires that the agreements be                     disincentivize ABI-Affiliated                          requiring that an ABI-Affiliated
                                                approved by the United States. Section                  Wholesalers from selling, marketing,                   Wholesaler use its best efforts to sell,
                                                V.C of the proposed Final Judgment                      advertising, promoting, or maximizing                  market, advertise, or promote ABI’s
                                                further provides that if ABI and Molson                 the retail placement of the beers of                   beers. The proposed Final Judgment
                                                Coors enter any new agreements with                     Third-Party Brewers,7 including the                    also does not prohibit ABI from
                                                each other with respect to the brewing,                 beers of high-end brewers.8 In                         conditioning incentives, programs, or
                                                packaging, production, marketing,                                                                              contractual terms based on an ABI-
                                                importing, distribution, or sale of beer                  7 Third-Party Brewers include any brewer,            Affiliated Wholesaler’s volume of sales
                                                in the United States, ABI must notify                   contract-brewer, or importer of beer for sale in the   of ABI beer,9 the retail placement of ABI
                                                the United States of the new agreements                 United States other than ABI, SABMiller, Molson        beer, or ABI’s percentage of beer sales in
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                        Coors, or MillerCoors.
                                                at least 60 calendar days in advance of                   8 In the proposed Final Judgment, ‘‘Beer’’
                                                                                                                                                               a geographic area, provided that any
                                                such agreements becoming effective,                     includes not only products made from malted            such incentives, programs, or
                                                and the United States must approve the                  barley, but also flavored malt beverages, alcoholic
                                                agreements. To the extent that ABI has                  root beers, and hard ciders. This definition is           9 ABI, however, may not define the percentage of

                                                                                                        necessary because ABI-Affiliated Wholesalers who       its beer sales in a geographic area by reference to
                                                divested the worldwide rights to a                      sell a Third-Party Brewer’s beer typically also sell   or derived from information obtained from ABI-
                                                brand, however, the provisions of the                   any flavored malt beverages, alcoholic root beers,     Affiliated Wholesalers concerning their sales of any
                                                proposed Final Judgment relating to                     and hard ciders made by the Third-Party Brewer.        Third-Party Brewer’s beers.



                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00046   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51476                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                contractual terms do not require or                     related to the transfer of control,                   expenses of the Divestiture Trustee.
                                                encourage an ABI-Affiliated Wholesaler                  ownership, or equity in any Distributor               After his or her appointment becomes
                                                to provide less than best efforts to the                to any other Distributor, ABI shall not               effective, the Divestiture Trustee will
                                                sale, marketing, advertising, retail                    give weight to or base any decision                   file monthly reports with the Court and
                                                placement, or promotion of Third-Party                  upon either Distributor’s business                    the United States setting forth his or her
                                                Brewers’ beers or to stop distributing                  relationship with a Third-Party                       efforts to accomplish the divestiture.
                                                Third-Party Brewers’ beers.                             Brewer—including, but not limited to,
                                                   The proposed Final Judgment also                                                                           E. Monitoring Trustee
                                                                                                        such Distributor’s sales, marketing,
                                                does not prevent ABI from requiring an                  advertising, promotion, or retail                        Section VIII of the proposed Final
                                                ABI-Affiliated Wholesaler to allocate to                placement of a Third-Party Brewer’s                   Judgment permits the appointment of a
                                                ABI’s beers a proportion of the ABI-                    beer. These provisions are intended to                Monitoring Trustee by the United States
                                                Affiliated Wholesaler’s annual spending                 prevent ABI from using its rights over                in its sole discretion. The United States
                                                on beer promotions and incentives as                    management or ownership changes to                    intends to appoint a Monitoring Trustee
                                                long as the allocation does not exceed                  promote alignment by selecting new                    and to seek the Court’s approval of such
                                                the proportion of revenues that ABI’s                   owners because they have demonstrated                 appointment. The Monitoring Trustee
                                                beers constituted in the ABI-Affiliated                 a willingness not to carry or promote                 will ensure that Defendants
                                                Wholesaler’s overall revenue for beer                   rival brands.                                         expeditiously comply with all of their
                                                sales in the preceding year. The                           Section V.G prevents ABI from                      obligations and perform all of their
                                                proposed Final Judgment permits this                    requesting or requiring an ABI-Affiliated             responsibilities under the proposed
                                                practice because, in any given                          Wholesaler to report to ABI the                       Final Judgment and the Hold Separate
                                                geographic area, the ABI-Affiliated                     wholesaler’s revenues, profits, margins,              Stipulation and Order; that the
                                                Wholesaler provides the exclusive path                  costs, sales, volumes, or other financial             Divestiture Assets remain economically
                                                to market for ABI’s beers, and therefore                information associated with the                       viable, competitive, and ongoing assets;
                                                ABI may be reluctant to invest in its                   purchase, sale, or distribution of a                  and that competition in the sale of beer
                                                distributors without some assurance                     Third-Party Brewer’s beer. ABI,                       in the United States and in all local
                                                that those investments will not be used                 however, is not prohibited from                       markets within the United States is
                                                primarily to benefit its rivals. ABI                    requesting the reporting of general                   maintained. The Monitoring Trustee
                                                therefore may require an ABI-Affiliated                 financial information by an ABI-                      will have the power and authority to
                                                Wholesaler to promote ABI’s beers in                    Affiliated Wholesaler to assess the                   monitor Defendants’ compliance with
                                                proportion to the revenues it earns on                  overall financial condition and financial             the terms of the proposed Final
                                                ABI’s beers.                                            viability of such wholesaler, the                     Judgment and attendant interim supply
                                                   The proposed Final Judgment does                     percentage of total beer revenues                     and transition services agreements. The
                                                not prohibit ABI from taking the above                  received by the wholesaler associated                 Monitoring Trustee will also have the
                                                actions, because such actions can be                    with ABI’s beer, or from conducting                   authority to investigate complaints that
                                                undertaken in a way that does not                       ordinary course due diligence in                      ABI has violated the restrictions related
                                                undermine the proposed Final                            connection with any potential                         to its distribution practices. The
                                                Judgment’s objective of ensuring that                   acquisition of an ABI-Affiliated                      Monitoring Trustee will have access to
                                                Third-Party Brewers have access to the                  Wholesaler.                                           all personnel, books, records, and
                                                distribution networks necessary to                         Section V.I directs ABI to notify ABI-             information necessary to monitor
                                                effectively compete with ABI and meet                   Affiliated Wholesalers of the changes to              Defendants’ compliance with the
                                                consumer demand. The proposed Final                     ABI’s programs or agreements required                 proposed Final Judgment, and will serve
                                                Judgment is not designed to prevent ABI                 by the proposed Final Judgment and the                at the cost and expense of ABI. The
                                                from competing. Rather, it is designed to               ABI-Affiliated Wholesalers’ rights to                 Monitoring Trustee will file reports
                                                ensure that Third-Party Brewers whose                   bring to the attention of the Monitoring              every 90 days with the United States
                                                beer is sold by ABI-Affiliated                          Trustee or the United States any actions              and, as appropriate, the Court setting
                                                Wholesalers have the opportunity to                     by ABI which the distributor believes                 forth Defendants’ efforts to comply with
                                                compete with ABI on a level playing                     may violate Section V of the proposed                 their obligations under the proposed
                                                field—not on a playing field in which                   Final Judgment. ABI must also provide                 Final Judgment and the Hold Separate
                                                ABI has used its influence over the                     ABI-Affiliated Wholesalers with a copy                Stipulation and Order.
                                                distributor to favor ABI’s beers at the                 of the proposed Final Judgment.
                                                expense of other beers in the                           Further, under Section V.H, ABI may                   F. Hold Separate Stipulation and Order
                                                distributor’s portfolio.                                not discriminate against, penalize, or                Provisions
                                                   The proposed Final Judgment                          retaliate against a Distributor that brings              Defendants have entered into the
                                                contains provisions designed to ensure                  to the attention of the Monitoring                    Hold Separate Stipulation and Order
                                                that ABI-Affiliated Wholesalers are free                Trustee or the United States a potential              attached as an exhibit to the
                                                to carry and promote rival brands                       violation by ABI of Section V of the                  Explanation of Consent Decree
                                                without concern that ABI will use its                   Final Judgment.                                       Procedures, which was filed
                                                control over management and                                                                                   simultaneously with the Court, to
                                                ownership changes to punish the                         D. Divestiture Trustee                                ensure that, pending the divestiture, the
                                                wholesaler. Section V.E prohibits ABI                     In the event that ABI does not                      Divestiture Assets are maintained as an
                                                from disapproving an ABI-Affiliated                     accomplish the divestiture as prescribed              ongoing, economically viable, and
                                                Wholesaler’s selection of its own                       in the proposed Final Judgment, Section
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              active business. The Hold Separate
                                                general manager, or a successor general                 VI provides that, upon application of                 Stipulation and Order ensures that the
                                                manager, based on the ABI-Affiliated                    the United States, the Court will appoint             Divestiture Assets are preserved and
                                                Wholesaler’s sales, marketing,                          a Divestiture Trustee selected by the                 maintained in a condition that allows
                                                advertising, promotion, or retail                       United States to complete the                         the divestiture to be effective.
                                                placement of a Third-Party Brewer’s                     divestiture. If a Divestiture Trustee is                 The Hold Separate Stipulation and
                                                beer. Similarly, Section V.F requires                   appointed, the proposed Final Judgment                Order requires that the Defendants take
                                                that when ABI exercises any right                       provides that ABI will pay all costs and              all steps that are within their power and


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00047   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                           51477

                                                consistent with the agreements that                     substantially lessen competition by                   responsible for the transition services
                                                govern the operations of MillerCoors to                 hindering the effective distribution of               and interim supply agreements
                                                ensure that MillerCoors will be                         the beers of ABI’s rivals. Notification of            described above; or (iii) be responsible
                                                maintained as a completely                              brewer acquisitions allows the United                 for making decisions regarding ABI’s
                                                independent competitor in the brewing                   States to evaluate any acquisition by                 relationships with, agreements with, or
                                                and sale of beer in the same manner that                ABI of, among other things, craft                     policies regarding distributors. This
                                                it is today. Moreover, SABMiller and                    breweries. ABI has acquired multiple                  provision ensures that Defendants
                                                ABI will not prevent or interfere with                  craft breweries over the past several                 cannot improperly use any confidential
                                                MillerCoors’ achieving its ordinary                     years, some of which were not                         information that they receive from
                                                course, previously agreed upon business                 reportable under the HSR Act.                         Molson Coors or from SABMiller
                                                plan and budget.                                        Acquisitions of this nature, individually             concerning MillerCoors in ways that
                                                   The Hold Separate Stipulation and                    or collectively, have the potential to                would harm competition in the U.S.
                                                Order further requires the Defendants to                substantially lessen competition, and                 beer industry.
                                                maintain and operate the Import                         the proposed Final Judgment gives the
                                                Products and business of selling Miller-                                                                      IV. Remedies Available to Potential
                                                                                                        United States an opportunity to evaluate
                                                Branded Products outside of the United                                                                        Private Litigants
                                                                                                        such transactions in advance of their
                                                States—which are not today standalone                   closing even if the purchase price is                    Section 4 of the Clayton Act, 15
                                                businesses—in the same manner as they                   below the HSR Act’s thresholds.                       U.S.C. 15, provides that any person who
                                                are currently operated. Defendants are                    The proposed Final Judgment requires                has been injured as a result of conduct
                                                required to use all reasonable efforts to               ABI to provide such notification to the               prohibited by the antitrust laws may
                                                achieve the sales and revenues targets                  Antitrust Division of the United States               bring suit in federal court to recover
                                                for the Import Products and Miller-                     Department of Justice (the ‘‘Antitrust                three times the damages the person has
                                                Branded Products in accordance with                     Division’’) in the same format as, and in             suffered, as well as costs and reasonable
                                                previously agreed upon business plans                   accordance with the instructions                      attorneys’ fees. Entry of the proposed
                                                and budgets and are prohibited from                     relating to, the Notification and Report              Final Judgment will neither impair nor
                                                sharing any competitively sensitive                     Form set forth in the Appendix to Part                assist the bringing of any private
                                                information regarding these products                    803 of Title 16 of the Code of Federal                antitrust damages action. Under the
                                                with any employee that is not currently                 Regulations, as amended. ABI must                     provisions of Section 5(a) of the Clayton
                                                involved in their operations or does not                provide such notification at least 30                 Act, 15 U.S.C. 16(a), the proposed Final
                                                have a reasonable need to know such                     calendar days prior to acquiring any                  Judgment has no prima facie effect in
                                                information.                                            such interest. If within the 30-day                   any subsequent lawsuit that may be
                                                                                                        period after notification the Antitrust               brought against Defendants.
                                                G. Notification Provisions
                                                                                                        Division makes a written request for                  V. Procedures Available for
                                                   Section XII of the proposed Final                    additional information, ABI shall be
                                                Judgment requires ABI to notify the                                                                           Modification of the Proposed Final
                                                                                                        precluded from consummating the                       Judgment
                                                United States in advance of executing                   proposed transaction or agreement until
                                                certain transactions that would not                     30 calendar days after submitting all                    The United States and Defendants
                                                otherwise be reportable under the Hart-                 requested additional information. Early               have stipulated that the proposed Final
                                                Scott-Rodino Antitrust Improvements                     termination of the waiting periods in                 Judgment may be entered by the Court
                                                Act of 1976, as amended (the ‘‘HSR                      this paragraph may be requested and,                  after compliance with the provisions of
                                                Act’’). The transactions covered by these               where appropriate, granted in the same                the APPA, provided that the United
                                                provisions include the acquisition or                   manner as is applicable under the                     States has not withdrawn its consent.
                                                license of any interest in non-ABI beer                 requirements and provisions of the HSR                The APPA conditions entry upon the
                                                brewing or distribution assets or brands,               Act and rules promulgated thereunder.                 Court’s determination that the proposed
                                                excluding acquisitions of: (1) Assets that                                                                    Final Judgment is in the public interest.
                                                do not generate at least $7.5 million in                H. Nondisclosure of Information                          The APPA provides a period of at
                                                annual gross revenue from beer sold for                    Section XIII of the proposed Final                 least 60 days preceding the effective
                                                resale in the United States; (2)                        Judgment requires Defendants to                       date of the proposed Final Judgment
                                                distribution licenses that do not                       implement and maintain procedures to                  within which any person may submit to
                                                generate at least $3 million in annual                  prevent the disclosure of the                         the United States written comments
                                                gross revenue in the United States; and                 confidential commercial information of                regarding the proposed Final Judgment.
                                                (3) beer distributors that do not generate              MillerCoors and Molson Coors by                       Any person who wishes to comment
                                                at least $3 million in annual gross                     Defendants to any of Defendants’                      should do so within 60 days of the date
                                                revenue in the United States. This                      affiliates who are involved in the                    of publication of this Competitive
                                                provision significantly broadens ABI’s                  marketing, distribution, or sale of beer              Impact Statement in the Federal
                                                pre-merger reporting requirements                       in the United States. Within 10 days of               Register, or the last date of publication
                                                because the $3 million and $7.5 million                 the Court approving the Hold Separate                 in a newspaper of the summary of this
                                                threshold amounts are significantly less                Stipulation and Order described above,                Competitive Impact Statement,
                                                than the HSR Act’s ‘‘size of the                        Defendants must submit to the United                  whichever is later. All comments
                                                transaction’’ reporting threshold.                      States their planned procedures to effect             received during this period will be
                                                   Section XII will provide the United                  compliance with their nondisclosure                   considered by the United States, which
                                                States with advance notice of, and an                   obligations. Additionally, Defendants                 remains free to withdraw its consent to
sradovich on DSK3GMQ082PROD with NOTICES




                                                opportunity to evaluate, ABI’s                          must provide a briefing as to the                     the proposed Final Judgment at any
                                                acquisition of both beer distributors and               obligations required under Section XIII               time prior to the Court’s entry of
                                                craft brewers. Notification of distributor              of the proposed Final Judgment to                     judgment. The comments and the
                                                acquisitions allows the United States to                certain of Defendants’ officers and                   response of the United States will be
                                                evaluate whether ABI’s acquisition of a                 employees who will (i) receive the                    filed with the Court. In addition,
                                                distributor implicates the prohibitions                 confidential commercial information of                comments will be posted on the
                                                in Section V or is otherwise likely to                  MillerCoors or Molson Coors; (ii) be                  Antitrust Division’s internet Web site


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00048   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51478                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                and, in certain circumstances, published                15 U.S.C. 16(e)(1)(A) & (B). In                        to the decree. The court is required to
                                                in the Federal Register.                                considering these statutory factors, the               determine not whether a particular decree is
                                                  Written comments should be                            court’s inquiry is necessarily a limited               the one that will best serve society, but
                                                submitted to: Peter J. Mucchetti, Chief,                one as the government is entitled to                   whether the settlement is ‘‘within the reaches
                                                Litigation I Section, Antitrust Division,                                                                      of the public interest.’’ More elaborate
                                                                                                        ‘‘broad discretion to settle with the                  requirements might undermine the
                                                United States Department of Justice, 450                defendant within the reaches of the                    effectiveness of antitrust enforcement by
                                                Fifth Street NW., Suite 4100,                           public interest.’’ United States v.                    consent decree.
                                                Washington, DC 20530.                                   Microsoft Corp., 56 F.3d 1448, 1461
                                                  The proposed Final Judgment                           (D.C. Cir. 1995); see generally United                 Bechtel, 648 F.2d at 666 (emphasis
                                                provides that the Court retains                         States v. SBC Commc’ns, Inc., 489 F.                   added) (citations omitted).11 In
                                                jurisdiction over this action, and the                  Supp. 2d 1, 15–17 (D.D.C. 2007)                        determining whether a proposed
                                                parties may apply to the Court for any                  (assessing public interest standard                    settlement is in the public interest, a
                                                necessary or appropriate modification,                  under the Tunney Act); United States v.                court ‘‘must accord deference to the
                                                interpretation, or enforcement of the                   U.S. Airways Group, Inc., 38 F. Supp. 3d               government’s predictions about the
                                                Final Judgment.                                         69, 75 (D.D.C. 2014) (explaining that the              efficacy of its remedies, and may not
                                                                                                        ‘‘court’s inquiry is limited’’ in Tunney               require that the remedies perfectly
                                                VI. Alternatives to the Proposed Final                                                                         match the alleged violations.’’ SBC
                                                Judgment                                                Act settlements); United States v. InBev
                                                                                                        N.V./S.A., No. 08–1965 (JR), 2009–2                    Commc’ns, 489 F. Supp. 2d at 17; see
                                                   The United States considered, as an                  Trade Cas. (CCH) ¶ 76,736, 2009 U.S.                   also U.S. Airways, 38 F. Supp. 3d at 75
                                                alternative to the proposed Final                       Dist. LEXIS 84787, at *3, (D.D.C. Aug.                 (noting that a court should not reject the
                                                Judgment, seeking preliminary and                       11, 2009) (noting that the court’s review              proposed remedies because it believes
                                                permanent injunctions against                           of a consent judgment is limited and                   others are preferable); Microsoft, 56 F.3d
                                                Defendants’ proposed transaction and                    only inquires ‘‘into whether the                       at 1461 (noting the need for courts to be
                                                proceeding to a full trial on the merits.               government’s determination that the                    ‘‘deferential to the government’s
                                                The United States is satisfied, however,                proposed remedies will cure the                        predictions as to the effect of the
                                                that the relief in the proposed Final                   antitrust violations alleged in the                    proposed remedies’’); United States v.
                                                Judgment will preserve competition in                   complaint was reasonable, and whether                  Archer-Daniels-Midland Co., 272 F.
                                                the national market and in each local                   the mechanisms to enforce the final                    Supp. 2d 1, 6 (D.D.C. 2003) (noting that
                                                market for beer in the United States.                   judgment are clear and manageable’’).10                the court should grant due respect to the
                                                Thus, the proposed Final Judgment will                     As the United States Court of Appeals               United States’ prediction as to the effect
                                                protect competition as effectively as,                  for the District of Columbia Circuit has               of proposed remedies, its perception of
                                                and will achieve all or substantially all               held, under the APPA a court considers,                the market structure, and its views of
                                                of the relief the United States would                   among other things, the relationship                   the nature of the case).
                                                have obtained through, litigation, but                  between the remedy secured and the                        Courts have greater flexibility in
                                                avoids the time, expense, and                           specific allegations set forth in the                  approving proposed consent decrees
                                                uncertainty of a full trial on the merits.              government’s complaint, whether the                    than in crafting their own decrees
                                                VII. Standard of Review Under the                       decree is sufficiently clear, whether                  following a finding of liability in a
                                                APPA for the Proposed Final Judgment                    enforcement mechanisms are sufficient,                 litigated matter. ‘‘[A] proposed decree
                                                                                                        and whether the decree may positively                  must be approved even if it falls short
                                                  The Clayton Act, as amended by the                    harm third parties. See Microsoft, 56                  of the remedy the court would impose
                                                APPA, requires that proposed consent                    F.3d at 1458–62. With respect to the                   on its own, as long as it falls within the
                                                judgments in antitrust cases brought by                 adequacy of the relief secured by the                  range of acceptability or is ‘within the
                                                the United States be subject to a 60-day                decree, a court may not ‘‘engage in an                 reaches of public interest.’ ’’ United
                                                comment period, after which the court                   unrestricted evaluation of what relief                 States v. Am. Tel. & Tel. Co., 552 F.
                                                shall determine whether entry of the                    would best serve the public.’’ United                  Supp. 131, 151 (D.D.C. 1982) (citations
                                                proposed Final Judgment ‘‘is in the                     States v. BNS, Inc., 858 F.2d 456, 462                 omitted) (quoting United States v.
                                                public interest.’’ 15 U.S.C. 16(e)(1). In               (9th Cir. 1988) (quoting United States v.              Gillette Co., 406 F. Supp. 713, 716 (D.
                                                making such a determination, the court,                 Bechtel Corp., 648 F.2d 660, 666 (9th                  Mass. 1975)), aff’d sub nom. Maryland
                                                in accordance with the statute as                       Cir. 1981)); see also Microsoft, 56 F.3d               v. United States, 460 U.S. 1001 (1983);
                                                amended in 2004, is required to                         at 1460–62; United States v. Alcoa, Inc.,              see also U.S. Airways, 38 F. Supp. 3d at
                                                consider:                                               152 F. Supp. 2d 37, 40 (D.D.C. 2001);                  76 (noting that room must be made for
                                                   (A) the competitive impact of such                   InBev, 2009 U.S. Dist. LEXIS 84787, at                 the government to grant concessions in
                                                judgment, including termination of alleged              *3. Courts have held that:                             the negotiation process for settlements
                                                violations, provisions for enforcement and                                                                     (citing Microsoft, 56 F.3d at 1461));
                                                                                                           [t]he balancing of competing social and
                                                modification, duration of relief sought,                                                                       United States v. Alcan Aluminum Ltd.,
                                                                                                        political interests affected by a proposed
                                                anticipated effects of alternative remedies
                                                actually considered, whether its terms are
                                                                                                        antitrust consent decree must be left, in the          605 F. Supp. 619, 622 (W.D. Ky. 1985)
                                                                                                        first instance, to the discretion of the               (approving the consent decree even
                                                ambiguous, and any other competitive
                                                                                                        Attorney General. The court’s role in                  though the court would have imposed a
                                                considerations bearing upon the adequacy of
                                                                                                        protecting the public interest is one of
                                                such judgment that the court deems
                                                                                                        insuring that the government has not
                                                necessary to a determination of whether the                                                                      11 Cf. BNS, 858 F.2d at 464 (holding that the
                                                                                                        breached its duty to the public in consenting          court’s ‘‘ultimate authority under the [APPA] is
                                                consent judgment is in the public interest;
                                                                                                                                                               limited to approving or disapproving the consent
sradovich on DSK3GMQ082PROD with NOTICES




                                                and
                                                                                                          10 The 2004 amendments substituted ‘‘shall’’ for     decree’’); United States v. Gillette Co., 406 F. Supp.
                                                   (B) the impact of entry of such judgment
                                                upon competition in the relevant market or              ‘‘may’’ in directing relevant factors for courts to    713, 716 (D. Mass. 1975) (noting that, in this way,
                                                                                                        consider and amended the list of factors to focus on   the court is constrained to ‘‘look at the overall
                                                markets, upon the public generally and                  competitive considerations and to address              picture not hypercritically, nor with a microscope,
                                                individuals alleging specific injury from the           potentially ambiguous judgment terms. Compare 15       but with an artist’s reducing glass’’). See generally
                                                violations set forth in the complaint                   U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006);   Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the
                                                including consideration of the public benefit,          see also SBC Commc’ns, 489 F. Supp. 2d at 11           remedies [obtained in the decree are] so
                                                if any, to be derived from a determination of           (concluding that the 2004 amendments ‘‘effected        inconsonant with the allegations charged as to fall
                                                the issues at trial.                                    minimal changes’’ to Tunney Act review).               outside of the ‘reaches of the public interest’ ’’).



                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00049   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                            51479

                                                greater remedy). To meet this standard,                 of Sen. Tunney). Rather, the procedure                 constituting any evidence against or
                                                the United States ‘‘need only provide a                 for the public interest determination is               admission by any party regarding any
                                                factual basis for concluding that the                   left to the discretion of the court, with              issue of fact or law;
                                                settlements are reasonably adequate                     the recognition that the court’s ‘‘scope                  And whereas, Defendants agree to be
                                                remedies for the alleged harms.’’ SBC                   of review remains sharply proscribed by                bound by the provisions of the Final
                                                Commc’ns, 489 F. Supp. 2d at 17.                        precedent and the nature of Tunney Act                 Judgment pending its approval by the
                                                   Moreover, the court’s role under the                 proceedings.’’ SBC Commc’ns, 489 F.                    Court;
                                                APPA is limited to reviewing the                        Supp. 2d at 11.12 A court can make its                    And whereas, the essence of this Final
                                                remedy in relationship to the violations                public interest determination based on                 Judgment is the prompt divestiture of
                                                that the United States has alleged in its               the competitive impact statement and                   certain rights and assets to assure that
                                                complaint, and does not authorize the                   response to public comments alone.                     competition is not substantially
                                                court to ‘‘construct [its] own                          U.S. Airways, 38 F. Supp. 3d at 76.                    lessened;
                                                hypothetical case and then evaluate the                                                                           And whereas, this Final Judgment
                                                decree against that case.’’ Microsoft, 56               VIII. Determinative Documents                          requires Defendant ABI to make certain
                                                F.3d at 1459; see also U.S. Airways, 38                   There are no determinative materials                 divestitures for the purpose of
                                                F. Supp. 3d at 75 (noting that the court                or documents within the meaning of the                 remedying the loss of competition
                                                must simply determine whether there is                  APPA that were considered by the                       alleged in the Complaint;
                                                a factual foundation for the                            United States in formulating the                          And whereas, Plaintiff requires
                                                government’s decisions such that its                    proposed Final Judgment.                               Defendants to agree to undertake certain
                                                conclusions regarding the proposed                      Dated: July 20, 2016                                   actions and refrain from certain conduct
                                                settlements are reasonable); InBev, 2009                Respectfully Submitted,                                for the purposes of remedying the loss
                                                U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he                 /s/llllll                                              of competition alleged in the Complaint;
                                                ‘public interest’ is not to be measured by              Michelle R. Seltzer (D.C. Bar #475482),                   And whereas, Defendants have
                                                comparing the violations alleged in the                 Assistant Chief, Litigation I, Antitrust               represented to the United States that the
                                                complaint against those the court                       Division, U.S. Department of Justice,                  divestitures required below can (after
                                                believes could have, or even should                     450 Fifth Street NW., Suite 4100,                      the Completion of the Transaction) and
                                                have, been alleged.’’). Because the                     Washington, DC 20530, Telephone:                       will be made, and that the actions and
                                                ‘‘court’s authority to review the decree                (202) 353–3865, Email:                                 conduct restrictions can and will be
                                                depends entirely on the government’s                    michelle.seltzer@usdoj.gov.                            undertaken, and that Defendants will
                                                exercising its prosecutorial discretion by                                                                     later raise no claim of hardship or
                                                                                                        Attorney for the United States
                                                bringing a case in the first place,’’ it                                                                       difficulty as grounds for asking the
                                                follows that ‘‘the court is only                        United States District Court for the                   Court to modify any of the provisions
                                                authorized to review the decree itself,’’               District of Columbia                                   contained below;
                                                and not to ‘‘effectively redraft the                    UNITED STATES OF AMERICA,                                 Now therefore, before any testimony
                                                complaint’’ to inquire into other matters               Plaintiff, v. ANHEUSER–BUSCH InBEV                     is taken, without trial or adjudication of
                                                that the United States did not pursue.                  SA/NV, and SABMILLER plc,                              any issue of fact or law, and upon
                                                Microsoft, 56 F.3d at 1459–60. As a                                                                            consent of the parties, it is ordered,
                                                                                                        Defendants.
                                                court in this district confirmed in SBC                                                                        adjudged, and decreed:
                                                Communications, courts ‘‘cannot look                    CASE NO.: 1:16–cv–01483
                                                beyond the complaint in making the                                                                             I. Jurisdiction
                                                                                                        JUDGE: Emmet G. Sullivan
                                                public interest determination unless the                                                                          This Court has jurisdiction over the
                                                complaint is drafted so narrowly as to                  FILED: 07/20/2016                                      subject matter of this action and each of
                                                make a mockery of judicial power.’’ 489                 Proposed Final Judgment                                the parties. The Complaint states a
                                                F. Supp. 2d at 15.                                                                                             claim upon which relief may be granted
                                                   In its 2004 amendments, Congress                        Whereas, Plaintiff, United States of                against Defendants under Section 7 of
                                                made clear its intent to preserve the                   America (‘‘United States’’) filed its                  the Clayton Act, as amended (15 U.S.C.
                                                practical benefits of utilizing consent                 Complaint on July 20, 2016, the United                 18).
                                                decrees in antitrust enforcement, adding                States and Defendants, by their
                                                the unambiguous instruction that                        respective attorneys, have consented to                II. Definitions
                                                ‘‘[n]othing in this section shall be                    entry of this Final Judgment without                      As used in the Final Judgment:
                                                construed to require the court to                       trial or adjudication of any issue of fact                A. ‘‘ABI’’ means Anheuser-Busch
                                                conduct an evidentiary hearing or to                    or law, and without this Final Judgment                InBev SA/NV, its domestic and foreign
                                                require the court to permit anyone to                                                                          parents, predecessors, divisions,
                                                                                                           12 See United States v. Enova Corp., 107 F. Supp.
                                                intervene.’’ 15 U.S.C. 16(e)(2); see also                                                                      subsidiaries, affiliates, partnerships,
                                                                                                        2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney
                                                U.S. Airways, 38 F. Supp. 3d at 76                      Act expressly allows the court to make its public      successors in interest (including any
                                                (indicating that a court is not required                interest determination on the basis of the             successor in interest to Anheuser-Busch
                                                to hold an evidentiary hearing or to                    competitive impact statement and response to           InBev SA/NV following the Completion
                                                permit intervenors as part of its review                comments alone’’); United States v. Mid-Am.            of the Transaction), and joint ventures;
                                                                                                        Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade
                                                under the Tunney Act). The language                     Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977)    and all directors, officers, employees,
                                                wrote into the statute what Congress                    (‘‘Absent a showing of corrupt failure of the          agents, and representatives of the
                                                intended when it enacted the Tunney                     government to discharge its duty, the Court, in        foregoing. The terms ‘‘parent,’’
                                                                                                        making its public interest finding, should . . .
sradovich on DSK3GMQ082PROD with NOTICES




                                                Act in 1974, as Senator Tunney                                                                                 ‘‘subsidiary,’’ ‘‘affiliate,’’ and ‘‘joint
                                                                                                        carefully consider the explanations of the
                                                explained: ‘‘[t]he court is nowhere                     government in the competitive impact statement         venture’’ refer to any person in which
                                                compelled to go to trial or to engage in                and its responses to comments in order to              there is majority (greater than 50%) or
                                                extended proceedings which might have                   determine whether those explanations are               total ownership or control between the
                                                the effect of vitiating the benefits of                 reasonable under the circumstances.’’); S. Rep. No.    company and any other person.
                                                                                                        93–298, at 6 (1973) (‘‘Where the public interest can
                                                prompt and less costly settlement                       be meaningfully evaluated simply on the basis of
                                                                                                                                                                  B. ‘‘ABI Divested Brand’’ means any
                                                through the consent decree process.’’                   briefs and oral arguments, that is the approach that   Import Product divested or sold
                                                119 Cong. Rec. 24,598 (1973) (statement                 should be utilized.’’).                                pursuant to commitments offered to the


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00050   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51480                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                European Commission pursuant to its                     generate at least $7.5 million in annual              Miller-Branded Products outside of the
                                                review of the Transaction.                              gross revenue from Beer sold for resale               Territory;
                                                   C. ‘‘ABI-Owned Distributor’’ means                   in the Territory; (ii) a license to                      5. All royalty or equivalent rights of
                                                any Distributor in which ABI owns                       distribute a non-ABI Beer brand where                 SABMiller in respect of oil and gas
                                                more than 50% of the outstanding                        said distribution license does not                    deposits at the brewery operated by
                                                equity interests or more than 50% of the                generate at least $3 million in annual                MillerCoors located at Fort Worth,
                                                assets.                                                 gross revenue in the Territory; or (iii) a            Texas;
                                                   D. ‘‘Acquirer’’ means:                               Beer distributor which does not generate                 6. All research and development
                                                   1. Molson Coors; or                                  at least $3 million in annual gross                   activities primarily related to the
                                                   2. an alternative purchaser of the                   revenue in the Territory.                             manufacture, distribution, marketing,
                                                Divestiture Assets selected pursuant to                    K. ‘‘Defendants’’ means ABI and                    and sale of Miller-Branded Products
                                                the procedures set forth in this Final                  SABMiller, and any successor or                       outside of the Territory;
                                                Judgment.                                               assignee to all or substantially all of the              7. All licenses, permits, and
                                                   E. ‘‘Beer’’ means any fermented                      business or assets of ABI or SABMiller,               authorizations issued by any
                                                alcoholic beverage that is (1) composed                 involved in the brewing, development,                 governmental organization primarily
                                                in part of water, a type of malted starch,              production, servicing, distribution,                  related to the manufacture, distribution,
                                                yeast, and hops or other flavoring, and                 marketing, or sale of Beer.                           marketing, and sale of Miller-Branded
                                                (2) has undergone the process of                                                                              Products outside of the Territory, to the
                                                                                                           L. ‘‘Distributor’’ means a wholesaler
                                                brewing. As used herein, the term                                                                             extent such licenses, permits, and
                                                                                                        in the Territory who acts as an
                                                ‘‘Beer’’ shall also include flavored malt                                                                     authorizations are capable of assignment
                                                                                                        intermediary between a brewer or
                                                beverages, root beers, and ciders.                                                                            or transfer by SABMiller;
                                                                                                        importer of Beer and a retailer of Beer.
                                                   F. ‘‘Closing’’ means consummation of                                                                          8. All customer lists, contracts,
                                                the divestiture of the Divestiture Assets                  M. ‘‘Divestiture Assets’’ means:                   accounts, and credit records primarily
                                                pursuant to the Final Judgment.                            1. SABMiller’s equity and ownership                related to the manufacture, distribution,
                                                   G. ‘‘Completion of the Transaction’’                 stake in MillerCoors;                                 marketing, and sale of Miller-Branded
                                                means the completion of the                                2. All intellectual property of                    Products outside of the Territory;
                                                Transaction in accordance with its                      SABMiller (other than MillerCoors) that                  9. All repair, performance, and other
                                                terms.                                                  is primarily related to any Miller-                   records primarily related to the
                                                   H. ‘‘Confidential Information’’ means                Branded Product, both inside and                      manufacture, distribution, marketing,
                                                confidential commercial information of                  outside the Territory, including, but not             and sale of Miller-Branded Products
                                                the Acquirer or MillerCoors that has                    limited to: (i) Patents (including all                outside of the Territory;
                                                been obtained from the Acquirer,                        reissues, divisions, continuations,                      10. All intangible assets including
                                                MillerCoors or SABMiller in connection                  continuations-in-part, reexaminations,                computer software and related
                                                with, or as a result of, (1) SABMiller’s                supplemental examinations, foreign                    documentation, safety procedures for
                                                equity and ownership stake in the                       counterparts, substitutions and                       the handling of materials and
                                                Divestiture Assets prior to the                         extensions thereof) and patent                        substances, design tools and simulation
                                                divestiture of the Divestiture Assets, (2)              applications; (ii) copyrights and all                 capability, and research data concerning
                                                the divestiture of the Divestiture Assets,              applications, registrations, and renewals             historic and current research and
                                                or (3) the entry into and performance                   therefor; (iii) trademarks, trade names,              development efforts, including, but not
                                                under the Interim Supply Agreements,                    service marks, service names, trade                   limited to, designs of experiments, and
                                                the License Agreements, or the                          dress, and other indicia of origin and all            the results of successful and
                                                Transition Services Agreements,                         applications, registrations, and renewals             unsuccessful designs and experiments,
                                                including quantities, units, and prices of              therefor; (iv) technical information,                 primarily related to the manufacture,
                                                items ordered or purchased from                         know-how, trade secrets, and other                    distribution, marketing, and sale of
                                                Defendant ABI by the Acquirer, and any                  proprietary and confidential                          Miller-Branded Products outside of the
                                                other competitively sensitive                           information, including such information               Territory;
                                                information regarding Defendant ABI’s                   relating to inventions, technology,                      11. All drawings blueprints, designs,
                                                or the Acquirer’s performance under the                 product formulations, recipes,                        design protocols, specifications for
                                                Interim Supply Agreements, the License                  production processes, customer lists,                 materials, specifications for parts and
                                                Agreements, or the Transition Services                  and marketing databases; and (v)                      devices, research data concerning
                                                Agreements.                                             domain names, social media accounts,                  historic and current research and
                                                   I. ‘‘Covered Entity’’ means any Beer                 and identifiers and registrations                     development, quality assurance and
                                                brewer, importer, distributor, or brand                 therefor;                                             control procedures, manuals and
                                                owner (other than ABI) that derives                        3. All contracts, commitments,                     technical information Defendants
                                                more than $7.5 million in annual gross                  agreements, subcontracts, leases,                     provide to their own employees,
                                                revenue from Beer sold for further resale               subleases, licenses, sublicenses,                     customers, suppliers, agents or
                                                in the Territory, or from license fees                  purchase orders, or other legally binding             licensees, and all research data
                                                generated by such Beer sales.                           promises or obligations, whether written              concerning historic and current research
                                                   J. ‘‘Covered Interest’’ means                        or oral, to which SABMiller (other than               and development efforts, including, but
                                                ownership or control of any Beer                        MillerCoors) is a party and that are                  not limited to, designs of experiments,
                                                brewing assets of, or any Beer brand                    primarily related to the manufacture,                 and the results of successful and
                                                assets of, or any Beer distribution assets              distribution, marketing, and sale of
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              unsuccessful designs and experiments,
                                                of, or any interest in (including any                   Miller-Branded Products outside of the                primarily related to the manufacture,
                                                financial, security, loan, equity,                      Territory, in each case other than any                distribution, marketing, and sale of
                                                intellectual property, or management                    real estate leases or employment or                   Miller-Branded Products outside of the
                                                interest), a Covered Entity; except that a              independent contractor agreements;                    Territory;
                                                Covered Interest shall not include (i) a                   4. All raw material inventory                         12. All other assets primarily related
                                                Beer brewery or Beer brand located                      exclusively related to the manufacture,               to the manufacture, distribution,
                                                outside the Territory that does not                     distribution, marketing, and sale of                  marketing, and sale of Miller-Branded


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00051   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                             51481

                                                Products outside of the Territory,                      affiliates, partnerships and joint                    Acquirer, including any subsidiaries or
                                                including finished goods and work-in-                   ventures, and all directors, officers,                joint ventures of the Acquirer), that
                                                progress, point-of-sale and advertising                 employees, agents, and representatives                manufactures, has a third party
                                                materials; and                                          of the foregoing. The terms                           manufacture, or imports Beer for sale in
                                                   13. Perpetual, fully paid-up, royalty-               ‘‘subsidiary,’’ ‘‘affiliate,’’ and ‘‘joint            the Territory.
                                                free licenses, entered into only with the               venture’’ refer to any person in which                  Z. ‘‘Transaction’’ means ABI’s
                                                approval of the United States in its sole               there is majority (greater than 50%) or               proposed acquisition of all of the shares
                                                discretion, to any intellectual property                total ownership or control between the                of SABMiller pursuant to the Co-
                                                and any other intangible assets required                company and any other person. As used                 Operation Agreement between
                                                to permit the Acquirer to manufacture,                  herein, the term ‘‘MillerCoors’’ shall not            Anheuser-Busch Inbev SA/NV and
                                                import, distribute, market, or sell the                 include SABMiller or Molson Coors.                    SABMiller plc, the joint announcement
                                                Import Products and the Licensed                           U. ‘‘Miller-Branded Products’’ means               by Anheuser-Busch Inbev SA/NV and
                                                Products in the Territory.                              Beer and any other beverages                          SABMiller plc in relation to the
                                                With respect to clauses (2) through (13)                manufactured, distributed, marketed                   Transaction pursuant to Rule 2.7 of the
                                                above, Divestiture Assets excludes (A)                  and sold, anywhere in the world, under                UK City Code on Takeovers and Mergers
                                                cash and cash equivalents, (B) any                      any of the brands or sub-brands set forth             and the letter agreement related to the
                                                accounts receivable, (C) subject to the                 on Attachment A hereto and any other                  Co-Operation Agreement between
                                                provisions of Section IV.E, any                         sub-brands of such brands.                            Anheuser-Busch Inbev SA/NV and
                                                employees or other personnel or benefit                    V. ‘‘Molson Coors’’ means Molson                   SABMiller plc, each of which is dated
                                                obligations with respect thereto, (D) any               Coors Brewing Company, its domestic                   November 11, 2015.
                                                capital stock or other equity securities,               and foreign parents, predecessors,
                                                                                                        divisions, subsidiaries, affiliates,                  III. Applicability
                                                (E) any real property or interests therein
                                                (other than certain royalty and                         partnerships and joint ventures, and all                 A. This Final Judgment applies to
                                                equivalent rights in respect of oil and                 directors, officers, employees, agents,               Defendants, as defined above, and all
                                                gas deposits referenced in clause (5)),                 and representatives of the foregoing.                 other persons in active concert or
                                                (F) any property, plant or equipment (or                The terms ‘‘parent,’’ ‘‘subsidiary,’’                 participation with any of them who
                                                any portion thereof), and (G) any of the                ‘‘affiliate,’’ and ‘‘joint venture’’ refer to         receive actual notice of this Final
                                                items enumerated in clauses (2) through                 any person in which there is majority                 Judgment by personal service or
                                                (13) above that are owned or controlled                 (greater than 50%) or total ownership or              otherwise.
                                                by any third party and are therefore not                control between the company and any                      B. If, prior to complying with Sections
                                                capable of assignment or transfer by                    other person. As used herein, the term                IV and VI of this Final Judgment,
                                                Defendant ABI or Defendant SABMiller.                   ‘‘Molson Coors’’ shall not include                    Defendants sell or otherwise dispose of
                                                   N. ‘‘Hold Separate Stipulation and                   MillerCoors unless and until Molson                   all or substantially all of their assets or
                                                Order’’ means the Hold Separate                         Coors acquires the Divestiture Assets                 of lesser business units that include the
                                                Stipulation and Order filed by the                      pursuant to Section IV or Section VI of               Divestiture Assets, they shall require the
                                                parties simultaneously herewith, which                  this Final Judgment.                                  purchaser to be bound by the provisions
                                                imposes certain duties on the                              W. ‘‘SABMiller’’ means SABMiller                   of this Final Judgment unless such sale
                                                Defendants with respect to the operation                plc, its domestic and foreign parents,                or disposition is pursuant to
                                                of the Divestiture Assets pending the                   predecessors, divisions, subsidiaries,                commitments offered to the European
                                                proposed divestitures.                                  affiliates, partnerships and joint                    Commission pursuant to its review of
                                                   O. ‘‘Import Products’’ means Beer and                ventures, and all directors, officers,                the Transaction.
                                                any other beverages, excluding Miller-                  employees, agents, and representatives
                                                                                                        of the foregoing. The terms ‘‘parent,’’               IV. Divestiture
                                                Branded Products and Licensed
                                                Products, imported, distributed,                        ‘‘subsidiary,’’ ‘‘affiliate,’’ and ‘‘joint               A. Defendant ABI is ordered and
                                                marketed, or sold in the Territory, under               venture’’ refer to any person in which                directed, within ninety (90) calendar
                                                any of the brands or sub-brands set forth               there is majority (greater than 50%) or               days after the filing of the Hold Separate
                                                on Attachment B hereto and any other                    total ownership or control between the                Stipulation and Order, to divest the
                                                sub-brands of such brands.                              company and any other person. As used                 Divestiture Assets, if the Completion of
                                                   P. ‘‘Independent Distributor’’ means                 herein in connection with any                         the Transaction has occurred, in a
                                                any Distributor that is not an ABI-                     obligation of SABMiller under this                    manner consistent with this Final
                                                Owned Distributor and that has an                       Order with respect to control of                      Judgment to Molson Coors. The United
                                                exclusive contractual right to sell                     MillerCoors, the term SABMiller means                 States, in its sole discretion, may agree
                                                Budweiser or Bud Light branded Beer.                    SABMiller’s non-controlling 58% equity                to one or more extensions of this time
                                                   Q. ‘‘Interim Supply Agreements’’                     interest and 50% voting rights in                     period not to exceed sixty (60) calendar
                                                means supply agreements covering any                    MillerCoors, which are subject to the                 days in total, and shall notify the Court
                                                Miller-Branded Products or Import                       MillerCoors LLC Amended and Restated                  in such circumstances. Defendant ABI
                                                Products.                                               Operating Agreement, until the                        agrees to use its best efforts to divest the
                                                   R. ‘‘License Agreement’’ means any                   Completion of the Transaction pursuant                Divestiture Assets as expeditiously as
                                                agreement to license intellectual                       to Section IV or Section VI of this Final             possible. Defendant ABI shall perform
                                                property pursuant to Section II.M.13 of                 Judgment.                                             all duties and provide any and all
                                                this Final Judgment.                                       X. ‘‘Territory’’ means the fifty states of         services required of Defendant ABI
sradovich on DSK3GMQ082PROD with NOTICES




                                                   S. ‘‘Licensed Products’’ means Beer                  the United States of America, the                     pursuant to the agreements with the
                                                and any other beverages manufactured,                   District of Columbia, Puerto Rico, and                Acquirer to effect the divestiture of the
                                                distributed, marketed or sold in the                    all United States military bases located              Divestiture Assets (including the
                                                Territory under the Foster’s or Redd’s                  in the fifty states of the United States of           License Agreements, Transition Services
                                                brands or any sub-brands of such                        America, the District of Columbia, and                Agreements, and Interim Supply
                                                brands.                                                 Puerto Rico.                                          Agreements).
                                                   T. ‘‘MillerCoors’’ means MillerCoors                    Y. ‘‘Third-Party Brewer’’ means any                   B. In the event Molson Coors is not
                                                LLC, its divisions, subsidiaries,                       person (other than Defendants or the                  the Acquirer of the Divestiture Assets,


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00052   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51482                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                Defendant ABI or any Monitoring                         responsibility is the production,                     all duties and provide any and all
                                                Trustee appointed pursuant to Section                   manufacture, importation, distribution,               services required of Defendant ABI
                                                VIII of this Final Judgment shall                       marketing, or sale of Miller-Branded                  under the Interim Supply Agreements.
                                                promptly notify the United States of that               Products.                                             The Interim Supply Agreements, and
                                                fact in writing. In such circumstances,                    F. In the event that Molson Coors is               any amendments, modifications, or
                                                within sixty (60) calendar days after the               not the Acquirer of the Divested Assets,              extensions of the Interim Supply
                                                United States receives such notice,                     Defendants shall permit prospective                   Agreements, may be entered into only
                                                Defendant ABI shall divest the                          Acquirers of the Divestiture Assets to                with the approval of the United States
                                                Divestiture Assets in a manner                          have reasonable access to personnel and               in its sole discretion.
                                                consistent with this Final Judgment to                  to make inspections of the physical                      K. If the Acquirer seeks an extension
                                                an alternative Acquirer(s) acceptable to                facilities of MillerCoors; access to any              of any of the Interim Supply
                                                the United States, in its sole discretion.              and all environmental, zoning, and                    Agreements covering Import Products,
                                                The United States, in its sole discretion,              other permit documents and                            or if Defendant ABI and the Acquirer
                                                may agree to one or more extensions of                  information; and access to any and all                mutually agree to an extension of any of
                                                this time period not to exceed sixty (60)               financial, operational, or other                      the Interim Supply Agreements covering
                                                calendar days in total, and shall notify                documents and information customarily                 Miller-Branded Products, the Acquirer
                                                the Court in such circumstances.                        provided as part of a due diligence                   shall so notify the United States in
                                                   C. In the event that Molson Coors is                 process.                                              writing at least four (4) months prior to
                                                not the Acquirer of the Divestiture                        G. Defendant ABI shall warrant to the
                                                                                                                                                              the date the Interim Supply
                                                Assets, Defendant ABI promptly shall                    Acquirer that the Divestiture Assets will
                                                                                                                                                              Agreement(s) expires. The total term of
                                                make known, by usual and customary                      be operational on the date of sale to the
                                                                                                                                                              the Interim Supply Agreements and any
                                                means, the availability of the Divestiture              extent such assets were operational on
                                                                                                                                                              extension(s) so approved shall not
                                                Assets. Defendant ABI shall inform any                  the date the Complaint was filed.
                                                                                                           H. Defendants shall not take any                   exceed five (5) years. Nothing in the
                                                person inquiring about a possible
                                                                                                        action that will impede in any way the                foregoing shall apply to any agreements
                                                purchase of the Divestiture Assets that
                                                                                                        permitting, operation, or divestiture of              regarding any ABI Divested Brands.
                                                they are being divested pursuant to this
                                                Final Judgment and provide that person                  the Divestiture Assets.                                  L. Unless the United States otherwise
                                                with a copy of this Final Judgment.                        I. On or before the date of the                    consents in writing, the divestiture
                                                   D. Defendants shall offer to furnish to              divestiture pursuant to Section IV or                 pursuant to Section IV or Section VI
                                                all prospective Acquirers, subject to                   Section VI of this Final Judgment,                    shall include the entire Divestiture
                                                customary confidentiality assurances,                   Defendant ABI shall enter into one or                 Assets, and shall be accomplished in
                                                all information and documents relating                  more transitional services agreements                 such a way as to satisfy the United
                                                to the Divestiture Assets customarily                   (collectively, the ‘‘Transition Services              States, in its sole discretion, that the
                                                provided in a due diligence process                     Agreements’’) with the Acquirer for a                 Divestiture Assets can and will be used
                                                except such information or documents                    period of up to one (1) year from the                 by the Acquirer as part of a viable,
                                                subject to the attorney-client privilege or             date of the divestiture required by                   ongoing business, engaged in brewing,
                                                work-product doctrine. Defendants shall                 Section IV or Section VI of this Final                developing, producing, distributing,
                                                make available such information to the                  Judgment to provide such services with                marketing, and selling Beer. The
                                                United States at the same time that such                respect to the business of developing,                divestiture shall be:
                                                information is made available to any                    producing, servicing, importing,                         1. Made to an Acquirer that, in the
                                                other person.                                           distributing, marketing, and selling                  United States’ sole judgment, has the
                                                   E. For a period beginning on the date                Miller-Branded Products outside the                   intent and capability (including the
                                                of the filing of the Hold Separate                      Territory (the ‘‘Miller International                 necessary managerial, operational,
                                                Stipulation and Order and continuing                    Business’’) that are reasonably necessary             technical and financial capability) to
                                                for not less than one (1) year from the                 to allow the Acquirer to operate the                  compete in the business of brewing,
                                                date of the divestiture required by                     Miller International Business in a                    developing, producing, and selling Beer;
                                                Section IV or VI of this Final Judgment,                manner substantially consistent with                     2. accomplished so as to satisfy the
                                                to the extent consistent with applicable                the operation of such business prior to               United States, in its sole discretion, that
                                                law, Defendants shall provide the                       date of the divestiture of the Divestiture            none of the terms of the agreement
                                                Acquirer and the United States                          Assets. Defendant ABI shall perform all               between an Acquirer and Defendant ABI
                                                information relating to the personnel                   duties and provide any and all services               gives Defendants the ability
                                                who spend the majority of their time on                 required of Defendant ABI under the                   unreasonably to raise the Acquirer’s
                                                or are otherwise material to the                        Transition Services Agreements. The                   costs, to lower the Acquirer’s efficiency,
                                                operation of the Divestiture Assets,                    Transition Services Agreements, and                   or otherwise to interfere in the ability of
                                                including Defendant SABMiller                           any amendments or modifications                       the Acquirer to compete effectively; and
                                                employees who spend the majority of                     thereto, may be entered into only with
                                                their time on or are otherwise material                 the approval of the United States in its                 3. made to an Acquirer who agrees to
                                                to the production, manufacture,                         sole discretion. Nothing in the foregoing             comply with the provisions of Section
                                                importation, distribution, marketing, or                shall apply to any agreements regarding               V.A of this Final Judgment, in a manner
                                                sale of Miller-Branded Products outside                 any ABI Divested Brands.                              satisfactory to the United States, in its
                                                the Territory, to enable the Acquirer to                   J. On or before the date of the                    sole discretion.
                                                make offers of employment. Beginning                    divestiture pursuant to Section IV or                 M. Defendant ABI shall, as soon as
sradovich on DSK3GMQ082PROD with NOTICES




                                                as of the date of the filing of the Hold                Section VI of this Final Judgment,                    possible, but within two (2) business
                                                Separate Stipulation and Order,                         Defendant ABI shall enter into Interim                days after completion of the relevant
                                                Defendants will not interfere with any                  Supply Agreements with the Acquirer                   event, notify the United States of: (1)
                                                negotiations by the Acquirer to retain,                 for a period of up to three (3) years from            The effective date of the completion of
                                                employ, or contract with any employee                   the date of the divestiture required by               the Transaction; and (2) the effective
                                                of MillerCoors or any Defendant                         Section IV or Section VI of this Final                date of the divestiture of the Divestiture
                                                SABMiller employee whose primary                        Judgment. Defendant ABI shall perform                 Assets to the Acquirer.


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00053   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                            51483

                                                V. Supplemental Relief                                  Distributor on the fact that an                       of a general manager or successor
                                                   A. Defendants agree, and Defendant                   Independent Distributor sells a Third-                general manager based on the
                                                ABI shall require any Acquirer to agree,                Party Brewer’s Beer outside of the                    Independent Distributor’s sales,
                                                that they will not cite the Transaction or              geographic area in which the                          marketing, advertising, promotion, or
                                                the divestiture required by Section IV or               Independent Distributor sells Defendant               retail placement of a Third-Party
                                                VI of this Final Judgment as a basis for                ABI’s Beer;                                           Brewer’s Beer.
                                                                                                           4. Requiring an Independent                           F. When exercising any right related
                                                modifying, renegotiating, or terminating
                                                                                                        Distributor to offer any incentive for                to the transfer of control, ownership, or
                                                any contract with any Distributor.
                                                                                                        selling Defendant ABI’s Beer in                       equity in any Distributor to any other
                                                   B. Defendant ABI shall not acquire
                                                                                                        connection with or in response to any                 Distributor, Defendant ABI shall not
                                                any equity interests in, or any
                                                                                                        incentive that the Independent                        give weight to or base any decision to
                                                ownership or control of the assets of, a
                                                                                                        Distributor offers for selling a Third-               exercise such right upon either
                                                Distributor if (i) such acquisition would
                                                                                                        Party Brewer’s Beer; and                              Distributor’s business relationship with
                                                transform said Distributor into an ABI-                                                                       a Third-Party Brewer—including, but
                                                Owned Distributor, and (ii) as measured                    5. Preventing an Independent
                                                                                                        Distributor from using best efforts to                not limited to, such Distributor’s sales,
                                                on the day of entering into an agreement                                                                      marketing, advertising, promotion, or
                                                for such acquisition more than ten                      sell, market, advertise, or promote any
                                                                                                        Third-Party Brewer’s Beer, which may                  retail placement of a Third-Party
                                                percent (10%), by volume, of Defendant                                                                        Brewer’s Beer.
                                                ABI’s Beer sold in the Territory would                  be defined as efforts designed to achieve
                                                                                                        and maintain the highest practicable                     G. Defendant ABI shall not request or
                                                be sold through ABI-Owned Distributors                                                                        require an Independent Distributor to
                                                after such acquisition. Percentages of                  sales volume and retail placement of the
                                                                                                        Third Party Brewer’s Beer in a                        report to Defendant ABI, whether in
                                                volume will be calculated using a                                                                             aggregated or disaggregated form, the
                                                twelve month trailing average as used in                geographic area.
                                                                                                                                                              Independent Distributor’s revenues,
                                                Defendant ABI’s ordinary course,                        Notwithstanding the foregoing, nothing                profits, margins, costs, sales volumes, or
                                                described in Attachment C.                              in this Final Judgment shall prohibit                 other financial information associated
                                                   C. If Defendants and the Acquirer                    Defendant ABI from entering into or                   with the purchase, sale, or distribution
                                                enter into any new agreement(s) with                    enforcing an agreement with any                       of a Third-Party Brewer’s Beer. Nothing
                                                each other with respect to the brewing,                 Independent Distributor requiring the                 in the foregoing sentence shall prohibit
                                                packaging, production, marketing,                       Independent Distributor to use best                   Defendant ABI from requesting the
                                                importing, distribution, or sale of Beer                efforts to sell, market, advertise, or                reporting of general financial
                                                in the Territory, Defendants shall notify               promote Defendant ABI’s Beer, which                   information by an Independent
                                                the United States of the new                            may be defined as efforts designed to                 Distributor to assess the overall
                                                agreement(s) at least sixty (60) calendar               achieve and maintain the highest                      financial condition and financial
                                                days in advance of such agreement(s)                    practicable sales volume and retail                   viability of such Independent
                                                becoming effective and such                             placement of Defendant ABI’s Beer in a                Distributor, or the percentage of total
                                                agreement(s) may only be entered into                   geographic area. Defendant ABI may                    Beer revenues received by the
                                                with the approval of the United States                  condition incentives, programs, or                    Independent Distributor in the prior
                                                in its sole discretion.                                 contractual terms based on an                         year associated with the purchase, sale,
                                                   D. Defendant ABI shall not                           Independent Distributor’s volume of                   or distribution of Defendant ABI’s Beer
                                                unilaterally, or pursuant to the terms of               sales of Defendant ABI’s Beer, the retail             distributed by the Independent
                                                any contract or agreement, provide any                  placement of Defendant ABI’s Beer, or                 Distributor, provided that the requested
                                                reward or penalty to, or in any other                   on Defendant ABI’s percentage of Beer                 information does not disclose or enable
                                                way condition its relationship with, an                 industry sales in a geographic area (such             Defendant ABI to infer the disaggregated
                                                Independent Distributor or any                          percentage not to be defined by                       revenues, profits, margins, costs, or
                                                employees or agents of that Independent                 reference to or derived from information              sales volumes associated with the
                                                Distributor based upon the amount of                    obtained from Independent Distributors                Independent Distributor’s purchase,
                                                sales the Independent Distributor makes                 concerning their sales of any Third-                  sale, or distribution of Third-Party
                                                of a Third-Party Brewer’s Beer or the                   Party Brewer’s Beer), provided,                       Brewers’ Beer. Nothing herein shall
                                                marketing, advertising, promotion, or                   however, that any such incentives,                    prevent Defendant ABI from conducting
                                                retail placement of such Beer. Actions                  programs, or contractual terms may not                ordinary course due diligence in
                                                prohibited by this Sub-section include,                 require or encourage an Independent                   connection with any potential
                                                but are not limited to:                                 Distributor to provide less than best                 acquisition of an Independent
                                                   1. Conditioning the availability of                  efforts to the sale, marketing,                       Distributor.
                                                Defendant ABI’s Beer on an                              advertising, retail placement, or                        H. Defendant ABI shall not
                                                Independent Distributor’s sales,                        promotion of any Third-Party Brewer’s                 discriminate against, penalize, or
                                                marketing, advertising, promotion, or                   Beer or to discontinue the distribution               otherwise retaliate against any
                                                retail placement of a Third-Party                       of a Third-Party Brewer’s Beer.                       Distributor because such Distributor
                                                Brewer’s Beer;                                          Defendant ABI may require an                          raises, alleges, or otherwise brings to the
                                                   2. Conditioning the prices, services,                Independent Distributor to allocate to                attention of the United States or the
                                                product support, rebates, discounts, buy                Defendant ABI’s Beer a proportion of                  Monitoring Trustee an actual, potential,
                                                backs, or other terms and conditions of                 the Independent Distributor’s annual                  or perceived violation of Section V of
                                                sale of Defendant ABI’s Beer that are                   spending on Beer promotions and
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              this Final Judgment.
                                                offered to an Independent Distributor                   incentives not to exceed the proportion                  I. Within ten (10) business days after
                                                based on an Independent Distributor’s                   of revenues that Defendant ABI’s Beer                 entry of this Final Judgment, Defendant
                                                sales, marketing, advertising,                          constitutes in the Independent                        ABI shall provide the United States, for
                                                promotion, or retail placement of a                     Distributor’s overall revenue for Beer                the United States to approve in its sole
                                                Third-Party Brewer’s Beer;                              sales in the preceding year.                          discretion, with a proposed form of
                                                   3. Conditioning any agreement or                        E. Defendant ABI shall not disapprove              written notification to be provided to
                                                program with an Independent                             an Independent Distributor’s selection                any Independent Distributor that


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00054   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51484                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                distributes Defendant ABI’s Beer in the                    D. Defendant ABI shall not object to               Divestiture Trustee may reasonably
                                                Territory. Such notification shall (1)                  a sale by the Divestiture Trustee on any              request, subject to reasonable protection
                                                explain the practices prohibited by                     ground other than the Divestiture                     for trade secret or other confidential
                                                Section V of this Final Judgment, (2)                   Trustee’s malfeasance. Any such                       research, development, or commercial
                                                describe the changes Defendant ABI is                   objection by Defendant ABI must be                    information. Defendant ABI shall take
                                                making to any programs, agreements, or                  conveyed in writing to the United States              no action to interfere with or to impede
                                                any interpretations of agreements                       and the Divestiture Trustee within ten                the Divestiture Trustee’s
                                                required to comply with Section V of                    (10) calendar days after the Divestiture              accomplishment of the divestiture.
                                                this Final Judgment, and (3) inform the                 Trustee has provided the notice
                                                                                                                                                                 F. After its appointment, the
                                                Independent Distributor of its right,                   required under Section VII.A.
                                                without fear of retaliation, to bring to                                                                      Divestiture Trustee shall file monthly
                                                                                                           E. The Divestiture Trustee shall serve             reports with the United States and the
                                                the attention of any Monitoring Trustee                 at the cost and expense of Defendant
                                                appointed pursuant to Section VIII of                                                                         Court setting forth the Divestiture
                                                                                                        ABI pursuant to a written agreement, on               Trustee’s efforts to accomplish the
                                                this Final Judgment or the United States                such terms and conditions as the United
                                                any actions by Defendant ABI which the                                                                        divestiture ordered under this Final
                                                                                                        States approves including                             Judgment. To the extent such reports
                                                Independent Distributor believes may                    confidentiality requirements and
                                                violate Section V of this Final Judgment.                                                                     contain information that the Divestiture
                                                                                                        conflict of interest certifications. The              Trustee deems confidential, such
                                                Within ten (10) business days after                     Divestiture Trustee shall account for all
                                                receiving the approval of the United                                                                          reports shall not be filed in the public
                                                                                                        monies derived from the sale of the                   docket of the Court. Such reports shall
                                                States, Defendant ABI shall make                        assets sold by the Divestiture Trustee
                                                reasonable efforts to furnish the                                                                             include the name, address, and
                                                                                                        and all costs and expenses so incurred.
                                                approved notification described above,                                                                        telephone number of each person who,
                                                                                                        After approval by the Court of the
                                                together with a paper or electronic copy                                                                      during the preceding month, made an
                                                                                                        Divestiture Trustee’s accounting,
                                                of this Final Judgment, to any                                                                                offer to acquire, expressed an interest in
                                                                                                        including fees for its services yet unpaid
                                                Independent Distributor that distributes                                                                      acquiring, entered into negotiations to
                                                                                                        and those of any professionals and
                                                Defendant ABI’s Beer in the Territory.                  agents retained by the Divestiture                    acquire, or was contacted or made an
                                                VI. Appointment of Trustee to Effect                    Trustee, all remaining money shall be                 inquiry about acquiring the Divestiture
                                                Divestiture                                             paid to Defendant ABI and the trust                   Assets, and shall describe in detail each
                                                                                                        shall then be terminated. The                         contact with any such person. The
                                                   A. If following Completion of the                                                                          Divestiture Trustee shall maintain full
                                                Transaction Defendant ABI has not                       compensation of the Divestiture Trustee
                                                                                                        and any professionals and agents                      records of all efforts made to divest the
                                                divested the Divestiture Assets within                                                                        Divestiture Assets.
                                                the time period specified in Section                    retained by the Divestiture Trustee shall
                                                IV.A, Defendant ABI shall notify the                    be reasonable in light of the value of the               G. If the Divestiture Trustee has not
                                                United States of that fact in writing.                  Divestiture Assets and based on a fee                 accomplished the divestiture ordered
                                                Upon application of the United States,                  arrangement providing the Divestiture                 under this Final Judgment within six (6)
                                                the Court shall appoint a Divestiture                   Trustee with an incentive based on the                months after its appointment, the
                                                Trustee selected by the United States                   price and terms of the divestiture and                Divestiture Trustee shall promptly file
                                                and approved by the Court to divest the                 the speed with which it is                            with the Court a report setting forth (1)
                                                Divestiture Assets in a manner                          accomplished, but timeliness is                       the Divestiture Trustee’s efforts to
                                                consistent with this Final Judgment.                    paramount. If the Divestiture Trustee                 accomplish the required divestiture, (2)
                                                   B. After the appointment of a                        and Defendant ABI are unable to reach                 the reasons, in the Divestiture Trustee’s
                                                Divestiture Trustee becomes effective,                  agreement on the Divestiture Trustee’s                judgment, why the required divestiture
                                                only the Divestiture Trustee shall have                 or any agents’ or consultants’                        has not been accomplished, and (3) the
                                                the right to sell the Divestiture Assets.               compensation or other terms and                       Divestiture Trustee’s recommendations.
                                                The Divestiture Trustee shall have the                  conditions of engagement within                       To the extent such reports contain
                                                power and authority to accomplish the                   fourteen (14) calendar days of                        information that the Divestiture Trustee
                                                divestiture to an Acquirer acceptable to                appointment of the Divestiture Trustee,               deems confidential, such reports shall
                                                the United States at such price and on                  the United States may, in its sole                    not be filed in the public docket of the
                                                such terms as are then obtainable upon                  discretion, take appropriate action,                  Court. The Divestiture Trustee shall at
                                                reasonable effort by the Divestiture                    including making a recommendation to                  the same time furnish such report to
                                                Trustee, subject to the provisions of                   the Court. The Divestiture Trustee shall,             Defendant ABI and to the United States,
                                                Sections IV, VI, and VII of this Final                  within three (3) business days of hiring              which shall have the right to make
                                                Judgment, and shall have such other                     any other professionals or agents,                    additional recommendations consistent
                                                powers as this Court deems appropriate.                 provide written notice of such hiring                 with the purpose of the trust. The Court
                                                   C. Subject to Section VI.E of this Final             and the rate of compensation to                       thereafter shall enter such orders as it
                                                Judgment, the Divestiture Trustee may                   Defendant ABI and the United States.
                                                                                                                                                              shall deem appropriate to carry out the
                                                hire at the cost and expense of                         Defendant ABI shall use its best efforts
                                                                                                                                                              purpose of the Final Judgment, which
                                                Defendant ABI any investment bankers,                   to assist the Divestiture Trustee in
                                                                                                                                                              may, if necessary, include extending the
                                                attorneys, or other agents, who shall be                accomplishing the required divestiture.
                                                                                                                                                              trust and the term of the Divestiture
                                                solely accountable to the Divestiture                   The Divestiture Trustee and any
                                                                                                                                                              Trustee’s appointment by a period
                                                Trustee, reasonably necessary in the                    consultants, accountants, attorneys, and
sradovich on DSK3GMQ082PROD with NOTICES




                                                Divestiture Trustee’s judgment to assist                other persons retained by the                         requested by the United States.
                                                in the divestiture. Any such investment                 Divestiture Trustee shall have full and                  H. If the United States determines that
                                                bankers, attorneys, or other agents shall               complete access to the personnel, books,              the Divestiture Trustee has ceased to act
                                                serve on such terms and conditions as                   records, and facilities of the business to            or failed to act diligently or in a
                                                the United States approves including                    be divested, and Defendant ABI shall                  reasonably cost-effective manner, it may
                                                confidentiality requirements and                        develop financial and other information               recommend the Court appoint a
                                                conflict of interest certifications.                    relevant to such business as the                      substitute Divestiture Trustee.


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00055   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                          51485

                                                VII. Notice of Proposed Divestiture                     VIII. Monitoring Trustee                              compensation of the Monitoring Trustee
                                                                                                           A. Upon the filing of this Final                   and any consultants, accountants,
                                                   A. Within two (2) business days                                                                            attorneys, and other persons retained by
                                                following execution of a definitive                     Judgment, the United States may, in its
                                                                                                        sole discretion, appoint a Monitoring                 the Monitoring Trustee shall be on
                                                divestiture agreement with an Acquirer                                                                        reasonable and customary terms
                                                                                                        Trustee, subject to approval by the
                                                other than Molson Coors, Defendant ABI                                                                        commensurate with the individuals’
                                                                                                        Court.
                                                or the Divestiture Trustee, whichever is                   B. The Monitoring Trustee shall have               experience and responsibilities. The
                                                then responsible for effecting the                      the power and authority to monitor                    Monitoring Trustee shall, within three
                                                divestiture required herein, shall notify               Defendants’ compliance with the terms                 (3) business days of hiring any
                                                the United States of any proposed                       of this Final Judgment and the Hold                   consultants, accountants, attorneys, or
                                                divestiture required by Section IV of                   Separate Stipulation and Order entered                other persons, provide written notice of
                                                this Final Judgment. If the Divestiture                 by this Court, and shall have such other              such hiring and the rate of
                                                Trustee is responsible, it shall similarly              powers as this Court deems appropriate.               compensation to Defendant ABI.
                                                notify Defendant ABI. The notice shall                                                                           F. The Monitoring Trustee shall have
                                                                                                        The Monitoring Trustee shall investigate
                                                set forth the details of the proposed                                                                         no responsibility or obligation for the
                                                                                                        and report on the Defendants’
                                                divestiture and list the name, address,                                                                       operation of Defendants’ businesses.
                                                                                                        compliance with their respective                         G. Defendants shall use their best
                                                and telephone number of each person                     obligations under this Final Judgment                 efforts to assist the Monitoring Trustee
                                                who offered or expressed an interest in                 and Defendants’ efforts to effectuate the             in monitoring Defendants’ compliance
                                                or desire to acquire any ownership                      purposes of this Final Judgment,                      with their respective obligations under
                                                interest in the Divestiture Assets or, in               including but not limited to, reviewing               this Final Judgment and under the Hold
                                                the case of the Divestiture Trustee, any                (a) complaints that Defendant ABI has                 Separate Stipulation and Order. The
                                                update of the information required to be                violated Section V of this Final                      Monitoring Trustee and any consultants,
                                                provided under Section VI.G above.                      Judgment; (b) the implementation of the               accountants, attorneys, and other
                                                   B. Within fifteen (15) calendar days of              compliance plan required by Section                   persons retained by the Monitoring
                                                receipt by the United States of such                    XIII.B of this Final Judgment; and (c)                Trustee shall have full and complete
                                                notice, the United States may request                   any claimed breach of the Transition                  access to the personnel, books, records,
                                                from Defendant ABI, the proposed                        Services Agreements, License                          and facilities relating to compliance
                                                                                                        Agreements, Interim Supply                            with this Final Judgment, subject to
                                                Acquirer, any other third party, or the
                                                                                                        Agreements, or other agreement                        reasonable protection for trade secret or
                                                Divestiture Trustee if applicable,
                                                                                                        between Defendant ABI and the                         other confidential research,
                                                additional information concerning the
                                                                                                        Acquirer that may affect the                          development, or commercial
                                                proposed divestiture, the proposed                      accomplishment of the purposes of this
                                                Acquirer, and any other potential                                                                             information or any applicable
                                                                                                        Final Judgment. If the Monitoring                     privileges, to the extent Defendants have
                                                Acquirer. Defendant ABI and the                         Trustee determines that any violation of
                                                Divestiture Trustee shall furnish any                                                                         the right to provide such access.
                                                                                                        the Final Judgment or breach of any                   Defendants shall take no action to
                                                additional information requested within                 related agreement has occurred, the                   interfere with or to impede the
                                                fifteen (15) calendar days of the receipt               Monitoring Trustee shall recommend an                 Monitoring Trustee’s accomplishment of
                                                of the request, unless the parties shall                appropriate remedy to the Antitrust                   its responsibilities.
                                                otherwise agree.                                        Division of the United States                            H. After its appointment, the
                                                   C. Within thirty (30) calendar days                  Department of Justice (the ‘‘Antitrust                Monitoring Trustee shall file reports
                                                after receipt of the notice or within                   Division’’), which, in its sole discretion,           every ninety (90) days, or more
                                                twenty (20) calendar days after the                     can accept, modify, or reject a                       frequently as needed, with the United
                                                United States has been provided the                     recommendation to pursue a remedy.                    States and, as appropriate, the Court
                                                additional information requested from                      C. Subject to Section VIII.E of this               setting forth the Defendants’ efforts to
                                                Defendant ABI, the proposed Acquirer,                   Final Judgment, the Monitoring Trustee                comply with their individual
                                                any third party, and the Divestiture                    may hire at the cost and expense of                   obligations under this Final Judgment
                                                Trustee, whichever is later, the United                 Defendant ABI, any consultants,                       and under the Hold Separate Stipulation
                                                States shall provide written notice to                  accountants, attorneys, or other persons,             and Order. To the extent such reports
                                                Defendant ABI and the Divestiture                       who shall be solely accountable to the                contain information that the Monitoring
                                                Trustee, stating whether or not it objects              Monitoring Trustee, reasonably                        Trustee deems confidential, such
                                                                                                        necessary in the Monitoring Trustee’s                 reports shall not be filed in the public
                                                to the proposed divestiture. If the
                                                                                                        judgment.                                             docket of the Court.
                                                United States provides written notice
                                                                                                           D. Defendants shall not object to                     I. The Monitoring Trustee shall serve
                                                that it does not object, the divestiture                actions taken by the Monitoring Trustee
                                                may be consummated, subject only to                                                                           until the sale of all the Divestiture
                                                                                                        in fulfillment of the Monitoring                      Assets is finalized pursuant to either
                                                Defendant ABI’s limited right to object                 Trustee’s responsibilities on any ground              Section IV or Section VI of this Final
                                                to the sale under Section VI.D of this                  other than the Monitoring Trustee’s                   Judgment and the Transition Services
                                                Final Judgment. Absent written notice                   malfeasance. Any such objection by                    Agreements and the Interim Supply
                                                that the United States does not object to               Defendants must be conveyed in writing                Agreements have expired and all other
                                                the proposed Acquirer or upon                           to the United States and the Monitoring               relief has been completed as defined in
                                                objection by the United States, a                       Trustee within ten (10) calendar days
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              Section V unless the United States, in
                                                divestiture proposed under Section VI                   after the action taken by the Monitoring              its sole discretion, authorizes the early
                                                shall not be consummated. Upon                          Trustee giving rise to Defendants’                    termination of the Monitoring Trustee’s
                                                objection by Defendant ABI under                        objection.                                            service.
                                                Section VI.D, a divestiture proposed                       E. The Monitoring Trustee shall serve
                                                under Section VI shall not be                           at the cost and expense of Defendant                  IX. Financing
                                                consummated unless approved by the                      ABI on such terms and conditions as the                 Defendants shall not finance all or
                                                Court.                                                  United States approves. The                           any part of any purchase made pursuant


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00056   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51486                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                to Section IV or Section VI of this Final               within fifteen (15) calendar days after               the procedures implemented to effect
                                                Judgment.                                               the change is implemented.                            compliance with Section XIII.A of this
                                                                                                           C. Defendants shall keep all records of            Final Judgment. In the event that the
                                                X. Hold Separate                                        all efforts made to preserve and divest               United States rejects a Defendant’s
                                                  Until the divestiture required by this                the Divestiture Assets until one year                 compliance plan, that Defendant shall
                                                Final Judgment has been accomplished,                   after the date of the divestiture.                    be given the opportunity to submit,
                                                or the Transaction is abandoned by the                                                                        within ten (10) business days of
                                                Defendants in accordance with the                       XII. Notification of Future Transactions
                                                                                                                                                              receiving the notice of rejection, a
                                                terms of the Co-Operation Agreement                        A. Unless such transaction is                      revised compliance plan. If the United
                                                between the Defendants dated                            otherwise subject to the reporting and                States and a Defendant cannot agree on
                                                November 11, 2015 and the United                        waiting period requirements of the Hart-              a compliance plan, the United States
                                                States has notified the Court,                          Scott-Rodino Antitrust Improvements                   shall have the right to request that the
                                                Defendants shall take all steps necessary               Act of 1976, as amended, 15 U.S.C. 18a                Court rule on whether the Defendant’s
                                                to comply with the Hold Separate                        (the ‘‘HSR Act’’), Defendant ABI,                     proposed compliance plan is
                                                Stipulation and Order entered by this                   without providing at least thirty (30)                reasonable.
                                                Court. Defendants shall take no action                  calendar days advance notification to                    C. Each Defendant may submit to the
                                                that would jeopardize the divestiture                   the United States, shall not directly or              United States evidence relating to the
                                                ordered by this Court.                                  indirectly acquire or license a Covered               actual operation of its respective
                                                                                                        Interest in or from a Covered Entity.                 compliance plan in support of a request
                                                XI. Affidavits                                             B. Any such notification shall be                  to modify such compliance plan set
                                                   A. Within twenty (20) calendar days                  provided to the Antitrust Division in the             forth in this Section XIII. In determining
                                                of the filing of this proposed Final                    same format as, and per the instructions              whether it would be appropriate to
                                                Judgment, and every thirty (30) calendar                relating to the Notification and Report               consent to modify the compliance plan,
                                                days thereafter until the divestiture has               Form set forth in the Appendix to Part                the United States, in its sole discretion,
                                                been completed under Section IV or                      803 of Title 16 of the Code of Federal                shall consider the need to protect
                                                Section VI, each Defendant shall deliver                Regulations as amended. Notification                  Confidential Information and the impact
                                                to the United States an affidavit as to the             shall be provided at least thirty (30)                the compliance plan has had on
                                                fact and manner of its compliance with                  calendar days prior to acquiring any                  Defendant ABI’s ability to efficiently
                                                Section IV or Section VI of this Final                  such interest. If within the 30-day                   provide services, supplies, and products
                                                Judgment. Each such affidavit on behalf                 period after notification, representatives            under the Transition Services
                                                of Defendant ABI shall also include the                 of the Antitrust Division make a written              Agreements, the License Agreements,
                                                name, address, and telephone number of                  request for additional information,                   the Interim Supply Agreements, and any
                                                each person who, during the preceding                   Defendant ABI shall not consummate                    agreements entered into between
                                                thirty (30) calendar days, made an offer                the proposed transaction or agreement                 Defendant ABI and the Acquirer subject
                                                to acquire, expressed an interest in                    until thirty (30) calendar days after                 to Section V.C.
                                                acquiring, entered into negotiations to                 submitting all such additional                           D. Defendants shall prior to the
                                                acquire, or was contacted or made an                    information. Early termination of the                 Completion of the Transaction, and
                                                inquiry about acquiring, any interest in                waiting periods in this paragraph may                 Defendant ABI shall following Closing:
                                                the Divestiture Assets, and shall                       be requested and, where appropriate,                     1. Furnish a copy of this Final
                                                describe in detail each contact with any                granted in the same manner as is                      Judgment and related Competitive
                                                such person during that period.                         applicable under the requirements and                 Impact Statement within sixty (60) days
                                                Defendant ABI’s affidavit shall also                    provisions of the HSR Act and rules                   of entry of the Final Judgment to (a)
                                                include a description of the efforts                    promulgated thereunder.                               each officer, director, and any other
                                                Defendant ABI has taken to solicit                         C. All references to the HSR Act in                employee that will receive Confidential
                                                buyers for the Divestiture Assets, and to               this Final Judgment refer to the HSR Act              Information; (b) each officer, director,
                                                provide required information to                         as it exists at the time of the transaction           and any other employee that is involved
                                                prospective Acquirers, including the                    or agreement and incorporate any                      in (i) any contact with the Acquirer or
                                                limitations, if any, on such information.               subsequent amendments to the HSR                      MillerCoors, (ii) making decisions under
                                                Assuming the information set forth in                   Act. This Section XII shall be broadly                the Transition Services Agreements, the
                                                the affidavit is true and complete, any                 construed and any ambiguity or                        License Agreements, the Interim Supply
                                                objection by the United States to                       uncertainty regarding the filing of notice            Agreements, and any agreements
                                                information provided by Defendants,                     under this Section XII shall be resolved              entered into between Defendants and
                                                including limitation on information,                    in favor of filing notice.                            the Acquirer subject to Section V.C, or
                                                shall be made within fourteen (14)                                                                            (iii) making decisions regarding
                                                calendar days of receipt of such                        XIII. Nondisclosure of Information                    Defendant ABI’s relationships with,
                                                affidavit.                                                A. Each Defendant shall implement                   agreements with, or policies regarding
                                                   B. Within twenty (20) calendar days                  and maintain procedures to prevent the                Distributors; and (c) any successor to a
                                                of the filing of this proposed Final                    disclosure of Confidential Information                person designated in Section XIII.D.1(a)
                                                Judgment, each Defendant shall deliver                  by or through Defendants to Defendants’               or (b);
                                                to the United States an affidavit that                  respective affiliates who are involved in                2. annually brief each person
                                                describes in reasonable detail all actions              the marketing, distribution, or sale of               designated in Section XIII.D.1 on the
                                                it has taken and all steps it has
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                        Beer or other beverages in the Territory,             meaning and requirements of this Final
                                                implemented on an ongoing basis to                      or to any other person who does not                   Judgment and the antitrust laws; and
                                                comply with Section X of this Final                     have a need to know the information.                     3. obtain from each person designated
                                                Judgment. Each Defendant shall deliver                    B. Each Defendant shall, within ten                 in Section XIII.D.1, within sixty (60)
                                                to the United States an affidavit                       (10) business days of the entry of the                days of that person’s receipt of the Final
                                                describing any changes to the efforts                   Hold Separate Stipulation and Order,                  Judgment, a certification that he or she
                                                and actions outlined in its earlier                     submit to the United States a                         (i) has read and, to the best of his or her
                                                affidavits filed pursuant to this section               compliance plan setting forth in detail               ability, understands and agrees to abide


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00057   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                                             Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices                                              51487

                                                by the terms of this Final Judgment; (ii)               for the purpose of securing compliance                XVIII. Expiration of Final Judgment
                                                is not aware of any violation of the Final              with this Final Judgment, or as                         Unless this Court grants an extension,
                                                Judgment that has not been reported to                  otherwise required by law.                            this Final Judgment shall expire ten (10)
                                                the company; and (iii) understands that                   D. If at the time information or                    years from the date of its entry.
                                                any person’s failure to comply with this                documents are furnished by Defendants
                                                Final Judgment may result in an                         to the United States, Defendants                      XIX. Public Interest Determination
                                                enforcement action for civil or criminal                represent and identify in writing the                    Entry of this Final Judgment is in the
                                                contempt of court against that                          material in any such information or                   public interest. The parties have
                                                Defendant and/or any person who                         documents to which a claim of                         complied with the requirements of the
                                                violates this Final Judgment.                           protection may be asserted under the                  Antitrust Procedures and Penalties Act,
                                                                                                        Protective Order, then the United States              15 U.S.C. 16, including making copies
                                                XIV. Compliance Inspection                              shall give Defendants ten (10) calendar               available to the public of this Final
                                                   A. For the purposes of determining or                days notice prior to divulging such                   Judgment, the Competitive Impact
                                                securing compliance with this Final                     material in any legal proceeding (other               Statement, and any comments thereon
                                                Judgment, or of determining whether                     than a grand jury proceeding).                        and the United States’ responses to
                                                the Final Judgment should be modified                                                                         comments. Based upon the record
                                                or vacated, and subject to any legally                  XV. No Reacquisition
                                                                                                                                                              before the Court, which includes the
                                                recognized privilege, from time to time                   Defendant ABI may not reacquire any
                                                                                                                                                              Competitive Impact Statement and any
                                                authorized representatives of the                       part of the Divestiture Assets during the
                                                                                                                                                              comments and response to comments
                                                Antitrust Division, including                           term of this Final Judgment.
                                                                                                                                                              filed with the Court, entry of this Final
                                                consultants and other persons retained                  XVI. Bankruptcy                                       Judgment is in the public interest.
                                                by the United States, shall, upon written
                                                request of an authorized representative                    The failure of any party to any                    lllllllllllllllllll
                                                of the Assistant Attorney General in                    agreement entered into to comply with                 Date:
                                                charge of the Antitrust Division, and on                this Final Judgment to perform any                    Court approval subject to procedures of
                                                reasonable notice to Defendants, be                     remaining obligations of such party                   the Antitrust Procedures and Penalties
                                                permitted:                                              under the agreement shall not excuse                  Act, 15 U.S.C. 16.
                                                   1. Access during Defendants’ office                  performance by the other party of its                 lllllllllllllllllll
                                                hours to inspect and copy, or at the                    obligations thereunder. Accordingly, for              United States District Judge
                                                option of the United States, to require                 purposes of Section 365(n) of the
                                                Defendants to provide hard copy or                      Bankruptcy Reform Act of 1978, as                     Attachment A—Miller Brands
                                                electronic copies of, all books, ledgers,               amended, and codified as 11 U.S.C. 101                1. Hamm’s
                                                accounts, records, data, and documents                  et. seq. (the ‘‘Bankruptcy Code’’) or any                A. Hamm’s
                                                in the possession, custody, or control of               analogous provision under any law of                     B. Hamm’s Golden Draft
                                                Defendants, relating to any matters                     any foreign or domestic, federal, state,                 C. Hamm’s Special Light
                                                contained in this Final Judgment; and                   provincial, local, municipal or other                 2. Icehouse
                                                   2. to interview, either informally or on             governmental jurisdiction relating to                    A. Icehouse 5.0
                                                                                                                                                                 B. Icehouse 5.5
                                                the record, Defendants’ officers,                       bankruptcy, insolvency or                                C. Icehouse Light
                                                employees, or agents, who may have                      reorganization (‘‘Foreign Bankruptcy                  3. Magnum Malt Liquor
                                                their individual counsel present,                       Law’’), (a) the agreement will not be                 4. Mickey’s
                                                regarding such matters. The interviews                  deemed to be an executory contract, and                  A. Mickey’s
                                                shall be subject to the reasonable                      (b) if for any reason a License                          B. Mickey’s Ice
                                                convenience of the interviewee and                      Agreement is deemed to be an executory                5. Miller
                                                without restraint or interference by                    contract, the licenses granted under the                 A. Miller Chill
                                                Defendants.                                             License Agreement shall be deemed to                     B. Miller Dark
                                                                                                                                                                 C. Miller Genuine Draft
                                                   B. Upon the written request of an                    be licenses to rights in ‘‘intellectual                  D. Miller Genuine Draft Light
                                                authorized representative of the                        property’’ as defined in Section 101 of                  E. Miller Genuine Draft 64
                                                Assistant Attorney General in charge of                 the Bankruptcy Code or any analogous                     F. Miller High Life
                                                the Antitrust Division, Defendants shall                provision of Foreign Bankruptcy Law                      G. Miller High Life Light
                                                submit written reports or respond to                    and the Acquirer shall be protected in                   H. Miller Lite
                                                written interrogatories, under oath if                  the continued enjoyment of its right                     I. Miller Mac’s Light
                                                requested, relating to any of the matters               under the License Agreement including,                   J. Miller Pilsner
                                                contained in this Final Judgment as may                 without limitation, the Acquirer so                      K. Miller Special
                                                be requested. Written reports authorized                                                                      6. Milwaukee’s
                                                                                                        elects, the protection conferred upon                    A. Milwaukee’s Best
                                                under this paragraph may, at the sole                   licensees under 11 U.S.C. Section 365(n)                 B. Milwaukee’s Best Dry
                                                discretion of the United States, require                of the Bankruptcy Code or any                            C. Milwaukee’s Best Ice
                                                Defendants to conduct, at Defendants’                   analogous provision of Foreign                           D. Milwaukee’s Best Light
                                                cost, an independent audit or analysis                  Bankruptcy Law.                                       7. Olde English
                                                relating to any of the matters contained                                                                         A. Olde English 800
                                                in this Final Judgment.                                 XVII. Retention of Jurisdiction                          B. Olde English 800 7.5
                                                   C. No information or documents                         This Court retains jurisdiction to                     C. Olde English High Gravity 800
                                                obtained by the means provided in this                  enable any party to this Final Judgment               8. Red Dog
sradovich on DSK3GMQ082PROD with NOTICES




                                                section shall be divulged by the United                 to apply to this Court at any time for                9. Sharp’s (Non-Alcohol)
                                                                                                                                                              10. Southpaw Light
                                                States to any person other than an                      further orders and directions as may be
                                                                                                                                                              11. Steel
                                                authorized representative of the                        necessary or appropriate to carry out or                 A. Steel Reserve Triple Export 8.1%
                                                executive branch of the United States,                  construe this Final Judgment, to modify                  B. Steel Reserve High Gravity
                                                except in the course of legal proceedings               any of its provisions, to ensure and                     C. Steel Reserve High Gravity 6.0
                                                to which the United States is a party                   enforce compliance, and to punish                        D. Steel Six
                                                (including grand jury proceedings), or                  violations of its provisions.                         12. Frederick Miller Classic Chocolate Lager



                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00058   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1


                                                51488                        Federal Register / Vol. 81, No. 150 / Thursday, August 4, 2016 / Notices

                                                13. Henry Weinhard’s                                          between La Constancia S. S.A. de C.V.           Comprehensive Environmental
                                                  A. Henry Weinhard’s Blonde Lager                            and Winery Exchange, Inc.                       Response, Compensation, and Liability
                                                  B. Henry Weinhard’s Blue Boar                                                                               Act, 42 U.S.C. 9601–9675 (‘‘CERCLA’’).
                                                  C. Henry Weinhard’s Classic Dark Lager                Attachment C—Defendant ABI’s
                                                                                                        Calculation Beer Volume Sold Through                  The claim sought to recover costs
                                                  D. Henry Weinhard’s Hefeweizen
                                                  E. Henry Weinhard’s Private Reserve                   ABI-Owned Distributors                                incurred and expected to be incurred in
                                                  F. Henry Weinhard’s Belgian Style Wheat                                                                     the future by the United States in
                                                                                                          For purposes of Section V.B., the                   response to releases and threats of
                                                  G. Henry Weinhard’s Root Beer
                                                  H. Henry Weinhard’s Black Cherry
                                                                                                        percentage of Defendant ABI’s Beer sold               releases of hazardous substances at or in
                                                  I. Henry Weinhard’s Vanilla Cream                     by ABI-Owned Distributors in the                      connection with the Faith, Hope, Doris,
                                                  J. Henry Weinhard’s Orange Cream                      Territory will be calculated according to             and Isabella Uranium Mine Sites,
                                                14. Leinenkugel’s                                       the following formula:                                located in McKinley County, New
                                                  A. Leinenkugel’s Apple Spice                                                                                Mexico (‘‘New Mexico Sites’’).
                                                  B. Leinenkugel’s Berry Weiss                                                                                  Under the Settlement Agreement, EPA
                                                  C. Leinenkugel’s BIG BUTT
                                                  D. Leinenkugel’s Creamy Dark
                                                                                                                                                              will receive $4,000,000.00. The
                                                  E. Leinenkugel’s Honey Weiss                            Where X and Y are defined as:                       Settlement Agreement contains
                                                  F. Leinenkugel’s Light                                                                                      covenants not to sue by the United
                                                                                                          X = volume of Defendant ABI’s Beer that
                                                  G. Leinenkugel’s Oktoberfest                          was sold by ABI-Owned Distributors to
                                                                                                                                                              States on behalf of EPA in favor of EFH
                                                  H. Leinenkugel’s Original Lager                       retailers in the Territory, as indicated by the       Properties and its predecessors, Chaco
                                                  I. Leinenkugel’s Red Lager                            most comprehensive data then used by ABI              Energy Company, TXU Industries
                                                  J. Leinenkugel’s Sunset Wheat                         (currently, ABI’s BudNet system), during the          Company LLC, and EFH Properties
                                                15. Sparks                                              Relevant Period. The Relevant Period, for             Company LLC (the ‘‘Covenant
                                                  A. Sparks                                             purposes of this Attachment C, shall be the           Beneficiaries’’), under Sections 106 and
                                                  B. Sparks Light                                       12 month period ending at the month-end
                                                  C. Sparks Plus 6%
                                                                                                                                                              107 of CERCLA, 42 U.S.C. 9606, 9607
                                                                                                        immediately prior to the execution of the             and Section 7003 of the Resource
                                                  D. Sparks Plus 7%                                     acquisition agreement governing the
                                                                                                                                                              Conservation and Recovery Act, 42
                                                Attachment B—Import Brands                              acquisition by ABI of the assets or equity
                                                                                                        interest, as applicable, of a Distributor. For        U.S.C. 6973, with respect to the EPA
                                                1. Pilsner Urquell                                      the avoidance of doubt, X will include the            claim or the New Mexico Sites. The
                                                2. Peroni                                               volume of Defendants’ Beer that was sold              Settlement Agreement also contains a
                                                3. Grolsch                                              during the Relevant Period to retailers in the        covenant not to sue by the United States
                                                4. Tyskie                                               territory by the Distributor whose assets or          on behalf of DOI in favor of the
                                                5. Lech                                                 equity interests are the subject of the               Covenant Beneficiaries, for natural
                                                6. Cerveza Aguila                                       acquisition agreement.                                resources damages claims under
                                                7. Cristal                                                Y = volume of Defendant ABI’s Beer that             Sections 107 of CERCLA, 42 U.S.C.
                                                8. Cusquena                                             was sold to retailers in the Territory during
                                                9. Sheaf Stout
                                                                                                                                                              9607, with respect to the EPA claim or
                                                                                                        the Relevant Period, as indicated by the most
                                                10. Castle Lager                                        comprehensive data then used by ABI                   the New Mexico Sites.
                                                11. Victoria Bitter                                     (currently, ABI’s BudNet system).                       The publication of this notice opens
                                                12. Crown Lager                                                                                               a period for public comment on the
                                                                                                        [FR Doc. 2016–18504 Filed 8–3–16; 8:45 am]
                                                13. Pure Blonde                                                                                               Settlement Agreement. Comments
                                                                                                        BILLING CODE 4410–11–P
                                                14. Carlton Draught and Carlton Dry                                                                           should be addressed to the Assistant
                                                15. Matilda Bay Brewing Company products                                                                      Attorney General, Environment and
                                                     described in the Exploitation of Rights                                                                  Natural Resources Division, and should
                                                     Agreement between MBBC Pty Ltd (ACN                DEPARTMENT OF JUSTICE
                                                                                                                                                              refer to In re Energy Future Holdings
                                                     009 077 703) and MillerCoors LLC dated
                                                                                                        Notice of Filing of Notice of Settlement              Corp., et al., Case No. 14–10979 (CSS),
                                                     as of March 31, 2013
                                                16. Cascade Brewery Company products                    Under the Comprehensive                               D.J. Ref. No. 90–5–2–1–09894/2. All
                                                     described in the Exploitation of Rights            Environmental Response,                               comments must be submitted no later
                                                     Agreement between Cascade Brewery                  Compensation, and Liability Act and                   than fifteen (15) days after the
                                                     Company Pty Ltd (ACN 058 152 195) and              the Resource Conservation and                         publication date of this notice.
                                                     MillerCoors LLC dated as of March 31,              Recovery Act                                          Comments may be submitted either by
                                                     2013                                                                                                     email or by mail:
                                                17. Caguama                                                On July 28, 2016, a Notice of
                                                18. Cantina                                             Settlement Among EFH Properties                       To submit
                                                19. Pilsener                                                                                                                      Send them to:
                                                                                                        Company and the United States on                      comments:
                                                20. Regia                                               behalf of the U.S. Environmental
                                                21. Suprema                                             Protection Agency (‘‘EPA’’) and the U.S.              By e-mail ......    pubcomment-ees.enrd@
                                                22. Taurino                                                                                                                         usdoj.gov.
                                                23. Barena
                                                                                                        Department of the Interior (‘‘DOI’’) was              By mail .........   Assistant Attorney General
                                                24. Port Royal                                          filed with the United States Bankruptcy                                   U.S. DOJ—ENRD
                                                25. Salva Vida                                          Court for the District of Delaware in the                                 P.O. Box 7611
                                                26. Santiago                                            bankruptcy proceeding entitled In re                                      Washington, DC 20044–7611.
                                                27. Haywards 5000                                       Energy Future Holdings Corp., et al.,
                                                28. Arriba                                              Case No. 14–10979 (CSS). The proposed                   Under section 7003(d) of RCRA, a
                                                29. Caballo                                             Settlement Agreement is attached to the               commenter may request an opportunity
                                                30. Cabana
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                        Notice of Settlement as Exhibit A.                    for a public meeting in the affected area.
                                                31. Del Mar                                                The Settlement Agreement resolves a                  During the public comment period,
                                                32. San Lucas                                                                                                 the Settlement Agreement may be
                                                                                                        claim against EFH Properties Company
                                                33. Tocayo
                                                34. Rialto                                              (‘‘EFH Properties’’), as the alleged                  examined and downloaded at this
                                                35. to the extent not otherwise listed herein,          corporate successor to former mine                    Justice Department Web site: https://
                                                     La Constancia S.A. de C.V. products                operators, asserted by the United States              www.justice.gov/enrd/consent-decrees.
                                                     described in the Supplier-Importer                 on behalf of the Environmental                        We will provide a paper copy of the
                                                                                                                                                                                                               EN04AU16.006</GPH>




                                                     Agreement, dated as of July 11, 2005               Protection Agency under the                           Settlement Agreement upon written


                                           VerDate Sep<11>2014   18:12 Aug 03, 2016   Jkt 238001   PO 00000   Frm 00059   Fmt 4703   Sfmt 4703   E:\FR\FM\04AUN1.SGM   04AUN1



Document Created: 2016-08-04 02:53:41
Document Modified: 2016-08-04 02:53:41
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 51465 

2024 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR