[Federal Register Volume 82, Number 30 (Wednesday, February 15, 2017)]
[Notices]
[Pages 10782-10798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03029]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Anheuser-Busch InBEV SA/NV, et al.; Public 
Comments and Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h),

[[Page 10783]]

the United States hereby publishes below the Response of Plaintiff 
United States to Public Comments on the Proposed Final Judgment in 
United States v. Anheuser-Busch InBev SA/NV, et al., Civil Action No. 
1:16-cv-01483-EGS, which was filed in the United States District Court 
for the District of Columbia on January 13, 2017, together with copies 
of the 12 comments received by the United States.
    Pursuant to the Court's January 19, 2017 minute order, comments 
were published electronically and are available to be viewed and 
downloaded at the Antitrust Division's Web site, at: https://www.justice.gov/atr/case/us-v-anheuser-busch-inbev-sanv-and-sabmiller-plc. A copy of the United States' response to the comments is also 
available at the same location.
    Copies of the comments and the response are available for 
inspection at the Department of Justice, Antitrust Division, Antitrust 
Documents Group, 450 Fifth Street NW., Suite 1010, Washington, DC 20530 
(telephone: (202) 514-2481), and at the Office of the Clerk of the 
United States District Court for the District of Columbia. Copies of 
any of these materials may also be obtained upon request and payment of 
a copying fee.

Patricia A. Brink,
Director of Civil Enforcement.

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Anheuser-Busch InBEV, 
and SABMiller plc, Defendants.

Civil Action No. 1:16-cv-01483 (EGS)

RESPONSE OF PLAINTIFF UNITED STATES TO PUBLIC COMMENTS ON THE PROPOSED 
FINAL JUDGMENT

                            TABLE OF CONTENTS
I. Introduction.................................................       1
II. Procedural History..........................................       1
III. Standard of Judicial Review................................       2
IV. The Investigation and the Proposed Final Judgment...........       6
V. Summary of Public Comments and the United States' Response...       8
    A. Response to Comments on ABI's Distribution Practices.....      10
        1. The Restrictions on ABI's Distribution Practices Were      11
         Designed to Ensure that the Divestiture Adequately
         Addresses the Harm Alleged in the Complaint and
         Identified in the CIS..................................
        2. Comments Regarding ABI's Ability Under Section V.D to      13
         Condition Incentives, Programs, or Contractual Terms on
         ABI's Percentage of Beer Industry Sales in a Geographic
         Area...................................................
        a. Summary of Comments..................................      13
        b. Allowing ABI to Condition Incentives, Promotions, or       14
         Contractual Terms on ABI's Percentage of Beer Industry
         Sales in a Geographic Area Does Not Undermine the
         Effectiveness of the Proposed Final Judgment...........
        3. Comments Regarding the Allocation to ABI's Beers of        15
         an Independent Distributor's Annual Spending on Beer
         Promotions and Incentives..............................
        a. Summary of Comments..................................      15
        b. Allowing ABI to Require a Proportional Allocation of       16
         an Independent Distributor's Annual Spending on Beer
         Promotions and Incentives Based on Previous-Year Beer
         Sales Does Not Undermine the Effectiveness of the
         Proposed Final Judgment................................
        4. Comment Regarding the Effect of the Proposed Final         18
         Judgment on Independent Distributors' Best Efforts to
         Market, Advertise, Place, Promote, and Sell Third-Party
         Brewers' Beer..........................................
        a. Summary of Comments..................................      18
        b. Allowing ABI to Require Best Efforts from Independent      18
         Distributors to Market and Sell ABI Beer Does Not
         Conflict With Independent Distributors Also Providing
         Best Efforts to Market and Sell Third-Party Brewers'
         Beer...................................................
        5. Comments Regarding the Restrictions on ABI's Ability       19
         to Disapprove the General Managers and Successor
         General Managers of Independent Distributors...........
        a. Summary of Comment...................................      19
        b. Section V.E Appropriately Restricts ABI's Ability to       19
         Disapprove the General Managers and Successor General
         Managers of Independent Distributors...................
        6. Comment Regarding Restrictions on ABI's Exercise of        21
         Rights Related to the Transfer of Control, Ownership,
         or Equity of Distributors..............................
        a. Summary of Comment...................................      21
        b. Section V.F Appropriately Restricts ABI's Exercise of      21
         Rights Related to the Transfer of Control, Ownership,
         or Equity of Distributors..............................
        7. Comments Regarding Restrictions Related to ABI-Owned       22
         Distributors...........................................
        a. Summary of Comments..................................      22
        b. Additional Restrictions Related to ABI-Owned               23
         Distributors Are Not Necessary.........................
        c. Section V.B Appropriately Restricts ABI's Ability to       24
         Increase the Volume of Beer Sold By ABI-Owned
         Distributors...........................................
        (i) A Nationwide Restriction is Appropriate.............      24
        (ii) Safeguards Exist to Prevent ABI from Circumventing       25
         the Cap................................................
        (iii) The Definition of ABI-Owned Distributor is              26
         Appropriate............................................
        8. Comments Requesting that Section V's Distribution          27
         Restrictions Also be Made to Apply to Molson Coors.....
        a. Summary of Comments..................................      27
        b. Molson Coors' Distribution Practices Are Outside the       28
         Scope of this Proceeding...............................
        9. Comment Related to ABI's Obligation to Inform              28
         Independent Distributors of the Requirements of the
         Proposed Final Judgment................................
        a. Summary of Comment...................................      28
        b. The Proposed Final Judgment Adequately Requires ABI        29
         to Inform Independent Distributors of the Requirements
         of the Final Judgment..................................
        10. Comment Related to ABI's Ability to Terminate             30
         Independent Distributors...............................
        a. Summary of Comment...................................      30
        b. The Proposed Final Judgment Already Prohibits ABI          30
         from Terminating an Independent Distributor Based on
         the Distributor's Sales, Promotion, Advertising,
         Marketing, or Retail Placement of a Third-Party
         Brewer's Beer..........................................
        11. Other Comments Requesting that the Restrictions in        31
         Section V be Broadened.................................
        a. Summary of Comments..................................      31

[[Page 10784]]

 
        b. Section V Meaningfully Restricts ABI's Ability to          31
         Reward or Penalize Independent Distributors Based on
         Their Relationships with Third-Party Brewers...........
    B. Comments Related to ABI's Ownership of Craft Breweries...      32
        1. Summary of Comments..................................      32
        2. The Proposed Final Judgment Adequately Ensures that        32
         the Department May Evaluate ABI's Acquisition of Craft
         Brewers................................................
    C. Comments Related to the Eden Brewery.....................      33
        1. Summary of Comments..................................      33
        2. The Requested Divestiture of the Eden Brewery is           33
         Outside the Scope of this Action.......................
    D. Other Comments...........................................      35
        1. Comments Related to a Potential Antitrust Compliance       36
         Policy.................................................
        a. Summary of Comments..................................      36
        b. The Absence of a Required Compliance Policy Does Not       37
         Undermine the Effectiveness of the Proposed Final
         Judgment...............................................
        2. Comments Related to the Monitoring Trustee...........      37
        a. Summary of Comments..................................      37
        b. The Monitoring Trustee Already Has the Ability to          38
         Monitor ABI's Compliance with the Proposed Final
         Judgment...............................................
        3. Comment Related to the Application of Law to ABI.....      39
        a. Summary of Comment...................................      39
        b. ABI Remains Subject to All Applicable Antitrust Laws.      40
        4. Comment Related to ABI's Ability to Make                   40
         Recommendations Regarding Retailer Schematics..........
        a. Summary of Comment...................................      40
        b. The Harms Alleged in the Complaint Do Not Justify the      40
         Requested Restrictions on Retail Shelf Schematics......
        5. Comment Related to ABI's Ability to Vertically             41
         Integrate into Retail Sales............................
        a. Summary of Comment...................................      41
        b. The Proposed Final Judgment Prevents ABI from Further      42
         Vertically Integrating as a Result of the SABMiller
         Acquisition and Provides the Department with Advance
         Notice of, and an Opportunity to Review, Future
         Acquisitions by ABI....................................
        6. Comments Related to Use of Certain Data Sources in         42
         the Complaint and Proposed Final Judgment..............
        a. Summary of Comments..................................      42
        b. The Data Sources Referenced in the Complaint and           43
         Proposed Final Judgment are Appropriate................
        7. Comments Related to ABI's Use of Third-Party Sales         44
         Data...................................................
        a. Summary of Comments..................................      44
        b. The Proposed Final Judgment Protects Distributors          44
         Against ABI's Unauthorized Use of Third-Party Sales
         Data...................................................
        8. Comment Requesting to Extend and Periodically Reopen       46
         the Period for Public Comments.........................
        a. Summary of Comment...................................      46
        b. No Extension or Reopening of the Comment Period is         46
         Necessary Because the Department Will Approve ABI's
         Descriptions of its Changes to its Programs and
         Agreements with Distributors...........................
        9. Comments Related to the Use of the Terms ``Third-          48
         Party Brewer's Beer'' and ``Third-Party Brewers' Beer''
        a. Summary of Comments 48...............................
        b. References to ``Third-Party Brewer's Beer'' Apply
         Individually and Collectively to Third-Party Brewers 48
        10. Comment Related to the Term of the Proposed Final         48
         Judgment...............................................
        a. Summary of Comment...................................      48
        b. The Ten-Year Term is Appropriate.....................      49
        11. Comment Requesting the Department Publicize the Last      49
         Day of the 60-day Public Comment Period................
        a. Summary of Comment...................................      49
        b. The APPA Does Not Require the Department to State on       49
         its Public Website the Last Day for Public Comments on
         Consent Decrees........................................
VI. Conclusion..................................................      50
 

I. INTRODUCTION

    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act (the ``APPA'' or ``Tunney Act''), 15 U.S.C. Sec. Sec.  
16(b)-(h), the United States hereby responds to the twelve public 
comments received regarding the proposed Final Judgment in this case. 
After careful consideration of the submitted comments, the United 
States continues to believe that the proposed Final Judgment will 
provide an effective and appropriate remedy for the antitrust violation 
alleged in the Complaint. The United States will move the Court for 
entry of the proposed Final Judgment after the public comments and this 
response have been published pursuant to 15 U.S.C. Sec.  16(d).\1\
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    \1\ On January 12, 2017, the United States submitted its 
Unopposed Motion and Supporting Memorandum to Excuse Federal 
Register Publication of Comments and Attachments, requesting that 
this Court authorize an alternative means for publishing the public 
comments and attachments received in this action (Doc. 15).
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II. PROCEDURAL HISTORY

    On November 11, 2015, Anheuser-Busch InBev SA/NV (``ABI'') entered 
into an agreement to acquire SABMiller plc (``SABMiller'') 
(collectively, ``Defendants'') in a transaction valued at approximately 
$107 billion. On July 20, 2016, the United States filed a civil 
antitrust Complaint, seeking to enjoin ABI from acquiring SABMiller. 
The Complaint alleges that ABI's proposed acquisition of SABMiller 
likely would substantially lessen competition in the sale of beer to 
customers in the United States in violation of Section 7 of the Clayton 
Act, 15 U.S.C. Sec.  18.
    Simultaneously with the filing of the Complaint, the United States 
filed a proposed Final Judgment, a Stipulation signed by Plaintiff and 
Defendants consenting to entry of the proposed Final Judgment after 
compliance with the requirements of the Tunney Act, 15 U.S.C. Sec.  16, 
and a Competitive Impact Statement (``CIS'') describing the transaction 
and the proposed Final Judgment. The United States published the 
proposed Final Judgment and CIS in the Federal Register on August 4, 
2016, see 81 Fed. Reg. 51465, and caused summaries of the proposed 
Final Judgment and CIS, together with directions for the submission of 
written comments relating to the proposed Final Judgment, to be 
published in The Washington Post on August 3, 4, 5, 6, 7, 8, and 9, 
2016. The 60[hyphen]day period for public comment ended on October 4, 
2016. The United States received twelve comments (Attachments 1 through 
12).

III. STANDARD OF JUDICIAL REVIEW

    The APPA requires that proposed consent judgments in antitrust 
cases

[[Page 10785]]

brought by the United States be subject to a 60-day public comment 
period, after which the court shall determine whether entry of the 
proposed Final Judgment ``is in the public interest.'' 15 U.S.C. Sec.  
16(e)(1). In making that determination, the court 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.

Id.
    The public interest inquiry is necessarily a limited one because, 
as courts have repeatedly held, the government is entitled to deference 
when determining whether a proposed settlement provides an effective 
and appropriate remedy for the alleged antitrust violation. See 
generally United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. 
Cir. 1995) (holding that the government is entitled to ``broad 
discretion to settle with the defendant within the reaches of the 
public interest''); United States v. US Airways Grp., Inc., 38 F. Supp. 
3d 69, 75 (D.D.C. 2014) (noting that the court's ``inquiry is limited'' 
because the government has ``broad discretion'' to ``determine the 
adequacy of the relief secured through a settlement''); United States 
v. InBev N.V./S.A., No. 08-cv-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 
proposed Final Judgment are clear and manageable''); United States v. 
SBC Commc'ns, Inc., 489 F. Supp. 2d 1, 10-11 (D.D.C. 2007) (concluding 
that the court's public interest inquiry is ``sharply proscribed by 
precedent and the nature of Tunney Act proceedings'').
    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 the enforcement mechanisms are sufficient, 
and whether the decree may 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 (same); United States v. Alcoa, Inc., 152 F. Supp. 
2d 37, 40 (D.D.C. 2001) (same); InBev, 2009-2 Trade Cas. (CCH) ] 
76,736, 2009 U.S. Dist. LEXIS 84787, at *3 (same). 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).
    In determining whether a proposed settlement is in the public 
interest, ``the court `must accord deference to the government's 
predictions about the efficacy of its remedies.' '' US Airways, 38 F. 
Supp. 3d at 76 (quoting SBC Commc'ns, 489 F. Supp. at 17); see also 
Microsoft, 56 F.3d at 1461 (noting that the government's ``predictions 
as to the effect of the proposed remedies'' must be afforded 
deference); 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 government's ``prediction as to the effect of the proposed 
remedies, its perception of the market structure, and its views of the 
nature of the case''); United States v. Morgan Stanley, 881 F. Supp. 2d 
563, 567-68 (S.D.N.Y. 2012) (explaining that the government is entitled 
to deference when crafting proposed remedies for antitrust violations).
    Courts ``may not require that the remedies perfectly match the 
alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d at 17. Rather, the 
ultimate question is 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.' '' Microsoft, 56 F.3d at 1461. 
Accordingly, 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; see also 
United States v. Apple, Inc., 889 F. Supp. 2d 623, 631 (S.D.N.Y. 2012) 
(same).
    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 the public 
interest.'' United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 
(D.D.C. 1982) (citations and internal quotation marks omitted); see 
also 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 greater remedy). And, the risk and uncertainty of 
further litigation are appropriate factors for the court to consider 
when evaluating whether a proposed remedy is in the public interest. 
See SBC Commc'ns, 489 F.Supp. 2d at 15 (``[R]oom must be made for the 
government to grant concessions in the negotiation process for 
settlements[.]'').
    In its 2004 amendments to the Tunney Act,\2\ Congress made clear 
its intent to preserve the practical benefits of using consent decrees 
in antitrust enforcement actions brought by the government by 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. Sec.  
16(e)(2). 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 the Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d 
at 11; see also United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (``[T]he Tunney Act expressly allows the court to make 
its public interest determination on the basis of the competitive 
impact statement and response to public comments alone.'');

[[Page 10786]]

US Airways, 38 F. Supp. 3d at 76 (same).
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    \2\ 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. 
Sec.  16(e) (2004), with 15 U.S.C. Sec.  16(e)(1) (2006); see also 
SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that a court's 
public interest inquiry ``remains sharply proscribed by precedent 
and the nature of Tunney Act proceedings'' because the 2004 
amendments ``effected minimal changes'' to Tunney Act review).
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IV. THE INVESTIGATION AND THE PROPOSED FINAL JUDGMENT

    The proposed Final Judgment is the culmination of a thorough nine 
month investigation conducted by the Antitrust Division of the United 
States Department of Justice (the ``Department''). In investigating the 
proposed transaction's likely competitive effects, the Department 
collected more than 1.4 million documents from the Defendants and third 
parties, conducted over 70 interviews of beer industry participants, 
took numerous party depositions, and coordinated with both state and 
foreign competition agencies reviewing the transaction. The Department 
carefully analyzed the information it obtained from these sources, as 
well as publicly available information, and thoroughly considered all 
of the competitive issues presented.
    Based on evidence gathered during its investigation, the Department 
concluded that ABI's proposed acquisition of SABMiller would likely 
substantially lessen competition in the sale of beer to U.S. customers 
both nationally and in every local market in the United States by 
eliminating head-to-head competition between ABI and MillerCoors LLC 
(``MillerCoors''). The proposed transaction would have eliminated 
competition between ABI and MillerCoors--the two largest beer brewers 
in the United States--because it would have given ABI a majority 
ownership interest in and 50% governance rights over MillerCoors, which 
was a joint venture between SABMiller and Molson Coors Brewing Company 
(``Molson Coors'') through which SABMiller conducted substantially all 
of its U.S. operations. Accordingly, the Department filed a civil 
antitrust lawsuit to block the acquisition as a violation of Section 7 
of the Clayton Act, 15 U.S.C. Sec.  18.
    The proposed Final Judgment provides an effective and appropriate 
remedy for the transaction's likely competitive harm by requiring ABI 
to divest SABMiller's equity and ownership stake in MillerCoors, as 
well as certain other assets related to MillerCoors' business and the 
Miller-branded beer business outside of the United States. After the 
Department filed the proposed Final Judgment, ABI acquired SABMiller 
and divested these assets to Molson Coors. The divestiture preserves 
competition in the U.S. beer industry by ensuring that MillerCoors 
continues to be an independent and viable competitor because it 
provides MillerCoors with (i) perpetual, royalty-free licenses to 
products for which it previously had to pay royalties, and (ii) 
ownership of the rights to the Miller beer brands.
    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.

The proposed Final Judgment also authorizes the Department to appoint a 
Monitoring Trustee--subject to the Court's approval--with the power and 
authority to monitor ABI's compliance with the terms of the proposed 
Final Judgment and other powers that the Court deems appropriate. Among 
other things, the Monitoring Trustee may investigate and report on 
complaints that ABI has violated the distribution-related restrictions 
contained in the proposed Final Judgment.

V. SUMMARY OF PUBLIC COMMENTS AND THE UNITED STATES' RESPONSE

    During the 60-day comment period, the Department received twelve 
comments regarding the proposed Final Judgment. These comments came 
from individuals representing four beer wholesaler associations (Beer 
Distributors of Oklahoma, Virginia Beer Wholesalers Association Inc., 
Wholesale Beer Association Executives, and National Beer Wholesalers 
Association), two brewers (D.G. Yuengling & Son, Inc. and Ninkasi 
Brewing Company), Consumer Watchdog (a consumer advocacy organization), 
American Beverage Licensees (a national trade association), the Brewers 
Association, the North Carolina Department of Justice, the 
International Brotherhood of Teamsters, and Stephen Calkins, Professor 
of Law, Wayne State University.
    In connection with sharing recommendations on how the proposed 
Final Judgment could be improved, many commenters acknowledged the 
meaningful protections for consumers and competition that the 
Department achieved through the proposed Final Judgment. For example:

 Virginia Beer Wholesalers Association stated that 
``[o]verall,'' it ``believes that the proposed Final Judgment 
addresses the most egregious anticompetitive aspects of the'' ABI/
SABMiller transaction; \3\
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    \3\ Virginia Beer Wholesalers Association comment at 1 
(Attachment 1).
---------------------------------------------------------------------------

 American Beverage Licensees stated: ``The DOJ, in its 
proposed Final Judgment, addresses the concerns that a $100 billion 
brewer with a publicly-stated interest in expanding its distribution 
footprint presents to the United States' independent beer 
distribution system. This is an important recognition of the impact 
of vertical integration on access to distribution, and the DOJ 
rightly puts forth reasonable limits for ABI.'' \4\
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    \4\ American Beer Licensees comment at 3 (Attachment 2).
---------------------------------------------------------------------------

 Beer Distributors of Oklahoma stated that it ``believes 
that the Complaint and Proposed Final Judgment (PFJ) identifies key 
issues and goes a long way towards providing necessary relief 
designed to protect the consumer by ensuring a more level playing 
field for brewers.'' \5\
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    \5\ Beer Distributors of Oklahoma comment at 1 (Attachment 3).
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 Consumer Watchdog applauded the Department for ``obtaining 
a comprehensive remedy to resolve wide-ranging competitive concerns 
resulting from the combination of the two largest global beer 
producers,'' and stated that the ``comprehensive remedy demonstrates 
the DOJ's newfound willingness to impose meaningful remedies to 
protect consumers and preserve competition when industry megaliths 
seek to merge.''\6\
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    \6\ Consumer Watchdog comment at 1 (Attachment 4).
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 Wholesale Beer Association Executives stated: ``With the 
caveats expressed [in its comments], WBAE is supportive of the

[[Page 10787]]

[proposed Final Judgment] and expresses its gratitude to the 
Department of Justice for addressing certain anticompetitive aspects 
of the proposed transaction and conduct in the mature marketplace 
after the closing of the transaction.'' \7\
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    \7\ Wholesale Beer Association Executives comment at 2 
(Attachment 5).

    Many of the public comments fall into one of three broad 
categories: (1) comments related to the restrictions imposed by the 
proposed Final Judgment on ABI's distribution practices and ownership 
of distributors, (2) comments related to ABI's ownership of craft 
brewers and beers, and (3) comments related to the brewery owned by 
MillerCoors in Eden, North Carolina (the ``Eden brewery''). There were 
other comments as well. Below are summaries of the issues raised by the 
commenters and the United States' responses to those issues.

A. Response to Comments on ABI's Distribution Practices

    The principal harm alleged in the Complaint is the reduction in 
competition that would have resulted from ABI's acquisition of 
SABMiller's interest in MillerCoors. In the absence of a remedy, ABI's 
proposed acquisition of SABMiller would have given ABI a majority 
ownership interest in and 50% governance rights over MillerCoors. That 
would have eliminated head-to-head competition between the two largest 
brewers in the United States. Thus, the likely effect of the 
acquisition would have been to substantially lessen competition in the 
sale of beer to U.S. consumers both nationally and in every local 
market in the United States.
    In addition, the Complaint alleged that ABI's acquisition of 
SABMiller would have increased ABI's incentive and ability to 
disadvantage its high-end rivals--such as brewers of craft and import 
beers--by limiting the distribution of their beers. With the 
elimination of MillerCoors as a competitive constraint, ABI's high-end 
rivals would have become a more important constraint on ABI's ability 
to raise beer prices. ABI would thus have had a greater incentive to 
invest resources in distributor acquisitions and to use practices that 
restrict its high-end rivals' access to distribution. Further, with 
control over the MillerCoors beer brands, ABI could have encouraged the 
distributors of both ABI brands and MillerCoors brands to limit their 
sales of ABI's high-end rivals' beer, which would likely have resulted 
in increased beer prices and fewer choices for consumers.
    The proposed Final Judgment secures a structural remedy to address 
the harm alleged in the Complaint. Specifically, the proposed Final 
Judgment requires ABI to divest SABMiller's equity and ownership stake 
in MillerCoors, as well as certain other assets related to MillerCoors' 
business and the Miller-branded beer business outside of the United 
States. The divestiture buyer, Molson Coors, acquired the assets 
necessary to maintain MillerCoors as an independent competitor. The 
proposed Final Judgment did not permit ABI to acquire any SABMiller 
asset that was used to compete in the markets for beer in the United 
States. Consequently, the divesture ensures that ABI's acquisition of 
SABMiller will not result in ABI's market share increasing or the U.S. 
beer industry becoming more concentrated.

1. The Restrictions on ABI's Distribution Practices Were Designed to 
Ensure that the Divestiture Adequately Addresses the Harm Alleged in 
the Complaint and Identified in the CIS

    As the United States explained in the CIS, however, the divestiture 
to Molson Coors alone, without additional relief, could lead to 
conditions that might increase ABI's incentive to disadvantage its 
high-end rivals by limiting the distribution of their beers. The United 
States noted that unlike MillerCoors, which competed directly against 
ABI only in the United States, Molson Coors competes against ABI in 
multiple countries throughout the world. See CIS at 11. The United 
States also noted that ABI and Molson Coors have cooperative 
arrangements related to beer brewing and distribution in certain 
countries in Eastern Europe. Id. The United States stated:

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 
multimarket 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.

Id. at 12.
    For these reasons, the restrictions on ABI's distribution practices 
in Section V of the proposed Final Judgment were crafted in order to 
preserve and promote competition in the U.S. beer industry by limiting 
ABI's ability to disadvantage its rivals in their efforts to compete 
for consumer demand. As a result, Section V of the proposed Final 
Judgment prevents ABI from engaging in distribution practices that long 
pre-dated the announcement of its proposed acquisition of SABMiller.
    For example, Section V of the proposed Final Judgment eliminates 
certain restrictions that ABI had placed on Independent Distributors 
\8\ that were designed to encourage them to sell and promote ABI's Beer 
brands over the Beer brands of ABI's competitors. Section V also 
prohibits ABI from compensating Independent Distributors based upon the 
amount of sales the Independent Distributor makes of ABI Beer relative 
to the Beer of ABI's competitors. Moreover, Section V broadly prohibits 
ABI from rewarding, penalizing, or in any other way conditioning its 
relationship with Independent Distributors on the Distributor's sales, 
marketing, advertising, promotion, or retail placement of Third-Party 
Brewers' Beers.
---------------------------------------------------------------------------

    \8\ Capitalized terms not otherwise defined herein have the 
meaning ascribed to them in the proposed Final Judgment.
---------------------------------------------------------------------------

    Accordingly, the proposed Final Judgment provides an effective and 
appropriate remedy for the likely competitive harm arising out of ABI's 
acquisition of SABMiller by:

 preventing ABI from increasing its market share in the U.S. 
and further concentrating the U.S. beer industry through its 
acquisition of SABMiller;
 preserving head-to-head competition between ABI and its 
largest U.S. competitor, MillerCoors;
 granting MillerCoors ownership rights of Miller beer brands 
and perpetual, royalty-free licenses to products for which it 
previously paid royalties;

[[Page 10788]]

 placing certain restrictions on ABI's distribution 
practices and ownership of distributors; and
 requiring ABI to provide the United States with notice of 
future acquisitions, including non-reportable acquisitions of beer 
distributors and craft brewers, prior to their consummation.

As described below, some commenters urged the Department to place 
additional restrictions on ABI's relationships with Independent 
Distributors.

2. Comments Regarding ABI's Ability Under Section V.D to Condition 
Incentives, Programs, or Contractual Terms on ABI's Percentage of Beer 
Industry Sales in a Geographic Area

a. Summary of Comments

    So long as ABI does 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,'' Section V.D of the proposed Final Judgment permits ABI to 
``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).'' Three commenters urged that Section V.D be revised to 
eliminate entirely ABI's ability to condition incentives, programs, or 
contractual terms on ABI's percentage of Beer industry sales in a 
geographic area.\9\
---------------------------------------------------------------------------

    \9\ Consumer Watchdog comment at 6-7; Brewers Association 
comment at 4 (Attachment 6); Professor Calkins comment at 3-4 
(Attachment 7).
---------------------------------------------------------------------------

b. Allowing ABI to Condition Incentives, Programs, or Contractual Terms 
on ABI's Percentage of Beer Industry Sales in a Geographic Area Does 
Not Undermine the Effectiveness of the Proposed Final Judgment

    At the time the Complaint was filed, ABI's Wholesaler Equity 
Agreement prohibited an Independent Distributor from requesting that a 
bar replace an ABI tap handle with a competitor's tap handle, 
requesting that a retailer replace ABI shelf space with a competitor's 
beer, and compensating its salespeople for their sales of competing 
beer brands (such as a dollar-per-case incentive), unless the 
Independent Distributor provided the same incentives for sales of 
certain ABI beer brands. See Compl. at ]] 27-28.
    Section V of the proposed Final Judgment prohibits ABI from 
continuing these practices which encouraged Independent Distributors to 
favor ABI beer over competing beers in their portfolios. Consequently, 
the proposed remedy secures substantial benefits for millions of 
Americans and advances competition. At the same time, the proposed 
Final Judgment recognizes that ABI has a legitimate interest in 
Independent Distributors growing ABI's percentage of all Beer industry 
sales in the areas in which the Distributors sell ABI's Beer. As a 
result, the proposed Final Judgment appropriately acknowledges ABI's 
interest in competing while at the same time prohibiting ABI's prior 
practices of conditioning incentives, programs, and contractual terms 
on an Independent Distributor's sale of ABI beer relative to the sale 
of Third-Party Brewers' beer in the Distributor's portfolio.
    Thus, giving deference to the Department's assessment, and 
considered in conjunction with the proposed Final Judgment's other 
distribution-related relief, allowing ABI to condition incentives, 
programs, and contractual terms on ABI's percentage of Beer industry 
sales in a geographic area is within the reaches of the public 
interest.

3. Comments Regarding the Allocation to ABI's Beers of an Independent 
Distributor's Annual Spending on Beer Promotions and Incentives

a. Summary of Comments

    Section V.D of the proposed Final Judgment provides that 
``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.'' Three commenters urged that this language be revised, 
either to make the allocation based on the proportion of the 
Independent Distributor's revenues received in the current year \10\ or 
to provide a carve-out for products newly added to the Distributor's 
portfolio.\11\ In particular, commenter National Beer Wholesalers 
Association (``NBWA'') described marketing as a forward-looking 
investment and expressed concern that Section V.D allows ABI to require 
an Independent Distributor to set marketing spend on backward-looking 
sales data.\12\ Commenter Virginia Beer Wholesalers Association, Inc. 
expressed concern that Section V.D ``would expose an Independent 
Distributor to demands that it spend 100% of its promotion funds on ABI 
products in the current year if that distributor derived 100% [of] its 
revenues from the sale of ABI products in the prior year. In such case, 
ABI could block the distributor from spending any of its own budget 
dollars towards the marketing of newly acquired Third-Party Brewer's 
products for an entire year.'' \13\
---------------------------------------------------------------------------

    \10\ Brewers Association comment at 6-7; NBWA comment at 20-21 
(Attachment 8).
    \11\ Brewers Association comment at 7; NBWA comment at 20-22; 
Virginia Beer Wholesalers Association, Inc. comment at 4.
    \12\ NBWA comment at 20-21.
    \13\ Virginia Beer Wholesalers Association, Inc. comment at 4 
(emphasis in original).
---------------------------------------------------------------------------

b. Allowing ABI to Require a Proportional Allocation of an Independent 
Distributor's Annual Spending on Beer Promotions and Incentives Based 
on Previous-Year Beer Sales Does Not Undermine the Effectiveness of the 
Proposed Final Judgment

    This provision protects competition while also recognizing that ABI 
has a legitimate competitive interest in encouraging Independent 
Distributors to allocate to ABI a proportion of their annual spending 
on Beer promotions and incentives. As the Department explained in the 
CIS, in any geographic area, an Independent Distributor ``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.'' 
CIS at 21. As a result, the proposed Final Judgment allows ABI to 
require a proportional allocation of an Independent Distributor's 
spending on Beer promotions and incentives based on the Independent 
Distributor's previous-year overall revenues. The primary reason that 
prior-year data were chosen as the measure was to promote accuracy and 
certainty for the calculations--something that would not be possible 
if, as proposed by some commenters, the allocation were based on 
projections for current-year revenues.
    The Department acknowledges that, because the proposed Final 
Judgment does not provide a carve-out for products newly added to an 
Independent Distributor's portfolio, the possibility exists that if an 
Independent Distributor derived 100% of its prior-

[[Page 10789]]

year revenues from ABI Beer, and the Independent Distributor added to 
its portfolio a Third-Party Brewer's Beer, ABI could prevent a 
Distributor from allocating any of its own promotional spending to the 
Third-Party Brewer's Beer in the year the Distributor started selling 
it. However, this possibility does not take the proposed Final Judgment 
outside the public interest.
    First, at the time the Department filed the Complaint, the vast 
majority of Independent Distributors already derived some of their 
revenues from Third-Party Brewers' Beer. Second, there are alternative 
avenues for promotion of a newly added product to an Independent 
Distributor's portfolio. For example, the proposed Final Judgment does 
not restrict or prevent Third-Party Brewers from providing money to 
Independent Distributors to promote and incentivize Independent 
Distributors to sell the Third-Party Brewers' Beer--including products 
newly added to an Independent Distributor's portfolio. If a Third-Party 
Brewer provides to an Independent Distributor a dollar-per-case 
incentive to sell a new Beer product, that dollar-per-case amount would 
not be promotional spending by the Independent Distributor and 
therefore would not be included in the calculation of the Distributor's 
spending on Beer promotions and incentives. As a result, an Independent 
Distributor that sold only ABI Beer in the previous year could use 
funds provided by the Third-Party Brewer to promote a Third Party 
Brewer's Beer that it was newly distributing--even in the first year 
the Distributor added the Beer to its portfolio. Moreover, once an 
Independent Distributor established revenues for a newly distributed 
product, ABI could not demand in the next year that the Distributor 
spend 100% of its promotion funds on ABI products.
    Finally, Section V.D of the proposed Final Judgment improves the 
status quo by placing a restriction--where none existed before--on 
ABI's ability to demand that Independent Distributors allocate more 
than a proportional amount of their spending on Beer promotions and 
incentives to the ABI Beer in their portfolios. Thus, giving deference 
to the Department's assessment, allowing ABI to require a proportional 
allocation of an Independent Distributor's annual spending on Beer 
promotions and incentives based on the Independent Distributor's 
previous-year overall revenues is within the reaches of the public 
interest.

4. Comments Regarding the Effect of the Proposed Final Judgment on 
Independent Distributors' Best Efforts to Market, Advertise, Place, 
Promote, and Sell Third-Party Brewers' Beer

a. Summary of Comments

    Two comments questioned how ABI can both be prohibited from 
preventing Independent Distributors from using their best efforts to 
sell, market, advertise, or promote any Third-Party Brewer's Beer while 
at the same time being allowed to require Independent Distributors to 
use their best efforts to sell, market, advertise, or promote ABI's 
Beer.\14\
---------------------------------------------------------------------------

    \14\ Yuengling comment at 13, 15 (Attachment 9); Professor 
Calkins comment at 3.
---------------------------------------------------------------------------

b. Allowing ABI to Require Best Efforts From Independent Distributors 
to Market and Sell ABI Beer Does not Conflict With Independent 
Distributors Also Providing Best Efforts to Market and Sell Third-Party 
Brewers' Beer

    The Department does not find the provisions (a) allowing ABI to 
require an Independent Distributor to provide best efforts to sell, 
market, advertise, or promote ABI's Beer and (b) prohibiting ABI from 
preventing an Independent Distributor from providing its best efforts 
regarding Third-Party Brewers' Beer, to be in conflict. Section V.D.5 
of the proposed Final Judgment prohibits ABI from ``[p]reventing 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.'' Section V.D continues in relevant 
part: ``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.'' An 
Independent Distributor may provide its best efforts to competing 
brands of Beer in its portfolio.

5. Comments Regarding the Restrictions on ABI's Ability to Disapprove 
the General Managers and Successor General Managers of Independent 
Distributors

a. Summary of Comments

    Section V.E of the proposed Final Judgment prohibits ABI from 
disapproving ``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.'' Three comments argued for 
broadening or clarifying these restrictions. Virginia Beer Wholesaler 
Association urged the Department to prohibit ABI from requiring that 
the general manager of an Independent Distributor purchase an equity 
stake in the Independent Distributor.\15\ Professor Calkins urged the 
Department to prohibit ABI from disapproving an Independent 
Distributor's selection of a general manager or successor general 
manager based on the Independent Distributor's sale of craft beer or 
failure to meet certain ABI-imposed thresholds for Beer sales or tap 
handles.\16\ NBWA recommended that the language in Section V.E 
describing ABI's disapproval rights be made identical to certain 
language in Section V.F.\17\ None of these concerns should affect the 
Court's public interest determination.
---------------------------------------------------------------------------

    \15\ Virginia Beer Wholesalers Association comment at 3-4.
    \16\ Professor Calkins comment at 4.
    \17\ NBWA comment at 23.
---------------------------------------------------------------------------

b. Section V.E Appropriately Restricts ABI's Ability to Disapprove the 
General Managers and Successor General Managers of Independent 
Distributors

    First, the fact that ABI may require a general manager of an 
Independent Distributor to purchase an equity stake in the Independent 
Distributor was not at issue in the ABI/SABMiller transaction. For that 
reason, the Complaint does not allege and the CIS does not identify any 
harm to competition resulting from requiring any such equity stake. 
Accordingly, a remedy directed to such a requirement is beyond the 
scope of this APPA proceeding, and the absence of such a remedy does 
not provide a basis for rejecting the proposed Final Judgment. See US 
Airways, 38 F. Supp. 3d at 76 (`` `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. . . .' 
'' (quoting United

[[Page 10790]]

States v. Graftech Int'l, No. 10-cv-2039, 2011 WL 1566781, at *13 
(D.D.C. Mar. 24, 2011)). The proposed Final Judgment should not be 
measured by how it might resolve general industry concerns about 
ownership of Independent Distributors that are not implicated in this 
matter.
    Second, while Section V.E of the proposed Final Judgment does not 
refer to specific measures of an Independent Distributor's success in 
selling ABI Beer such as ABI-imposed volume thresholds for Beer sales 
or tap handles, it does restrict ABI's general manager disapproval 
rights related to an Independent Distributor's success in selling 
Third-Party Brewers' Beer. Accordingly, Section V.E properly balances 
ABI's legitimate interest in ensuring that Independent Distributors 
have managers that can successfully market and sell ABI Beer in their 
respective distribution territories against the danger of allowing ABI 
to disapprove 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.
    Finally, with respect to commenter NBWA's characterization of the 
restrictions on ABI in Section V.E as inconsistent with the 
restrictions on ABI in V.F,\18\ no problematic inconsistency exists. 
Both Sections V.E and V.F restrict ABI's ability to consider ``the 
Independent Distributor's sales, marketing, advertising, promotion, or 
retail placement of a Third-Party Brewer's Beer'' as appropriate to the 
respective circumstance.
---------------------------------------------------------------------------

    \18\ NBWA comment at 23.
---------------------------------------------------------------------------

    Thus, giving deference to the Department's assessment, the 
restrictions in the proposed Final Judgment on ABI's ability to 
disapprove the general manager and successor general manager of 
Independent Distributors are within the reaches of the public interest.

6. Comment Regarding Restrictions on ABI's Exercise of Rights Related 
to the Transfer of Control, Ownership, or Equity of Distributors

a. Summary of Comment

    Section V.F of the proposed Final Judgment places restrictions on 
ABI in connection with its exercise of rights related to the transfer 
of control, ownership, or equity of Distributors. Commenter D.G. 
Yuengling & Son, Inc. (``Yuengling'') asks that ABI's ability to 
exercise those rights be eliminated or, alternatively, that Section V.F 
be broadened to require ABI to explain any decision that it makes when 
exercising a right related to the transfer of control, ownership, or 
equity of a Distributor and to set forth a procedure by which the 
Department will review ABI's decision.\19\
---------------------------------------------------------------------------

    \19\ Yuengling comment at 9-12, 14.
---------------------------------------------------------------------------

b. Section V.F Appropriately Restricts ABI's Exercise of Rights Related 
to the Transfer of Control, Ownership, or Equity of Distributors

    Section V.F restricts ABI's ability to exercise any rights related 
to the transfer, ownership, control, or equity of Distributors by 
prohibiting ABI from giving weight to or basing its decision to 
exercise such rights on a Distributor's business relationship with a 
Third-Party Brewer. These restrictions 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. Thus, the 
restrictions help ensure that ABI cannot exercise its rights related to 
the ownership or control of Distributors in a manner that harms 
competition or disadvantages ABI's rivals. An absolute ban is 
unnecessary, especially because competitively permissible reasons could 
exist for ABI to seek to exercise such rights. In addition, pursuant to 
Section VIII.B, a Monitoring Trustee will monitor ABI's compliance with 
Section V.F and recommend appropriate remedial measures if the 
Monitoring Trustee determines that ABI has violated its provisions. 
Should the Monitoring Trustee or anyone else bring an alleged violation 
to the Department's attention, the Department already has well-
established procedures for reviewing such allegations. No additional 
procedures need be specified in the proposed Final Judgment.
    Giving deference to the Department's assessment, imposing the 
Section V.F restrictions on ABI's exercise of rights related to the 
transfer of control, ownership, or equity in any Distributor to any 
other Distributor is within the reaches of the public interest.

7. Comments Regarding Restrictions Related to ABI-Owned Distributors

a. Summary of Comments

    Section V.B of the proposed Final Judgment prohibits ABI from 
acquiring any equity interests in, or any ownership or control of the 
assets of, a Distributor if more than 10% of ABI's Beer in the United 
States would be sold by ABI-Owned Distributors after the acquisition. 
Five comments called for the proposed Final Judgment to be amended to 
place additional restrictions on ABI's ownership of Distributors, 
ranging from a total ban on ABI's acquisition of additional 
Distributors to a state-by-state rather than a nationwide volume cap to 
requiring ABI to divest all ABI-Owned Distributors.\20\ Two comments 
also called for a more expansive definition of ABI-Owned 
Distributor.\21\
---------------------------------------------------------------------------

    \20\ Beer Distributors of Oklahoma comment at 3-5; Consumer 
Watchdog comment at 6; Brewers Association comment at 5-6; NBWA 
comment at 13-15; Ninkasi comment at 1-2 (Attachment 10).
    \21\ NBWA comment at 16-19; Wholesale Beer Association 
Executives comment at 7-9.
---------------------------------------------------------------------------

b. Additional Restrictions Related to ABI-Owned Distributors Are Not 
Necessary

    Commenter Beer Distributors of Oklahoma urged that ABI be required 
to divest all ABI-Owned Distributors,\22\ and commenters Consumer 
Watchdog, Brewers Association, NBWA, and Ninkasi Brewing Company 
(``Ninkasi'') urged that ABI be prevented from acquiring any additional 
Distributors during the term of the proposed Final Judgment.\23\ Such 
restrictions are not necessary to remedy the harms alleged in the 
Complaint or identified in the CIS. See US Airways, 38 F. Supp. 3d at 
76 (``[T]he court `must accord deference to the government's 
predictions about the efficacy of its remedies.''' (quoting SBC 
Commc'ns, 489 F. Supp. at 17)).
---------------------------------------------------------------------------

    \22\ Beer Distributors of Oklahoma comment at 3-4.
    \23\ Consumer Watchdog comment at 6; Brewers Association comment 
at 5-6; NBWA comment at 15; Ninkasi comment at 1-2.
---------------------------------------------------------------------------

    Moreover, nothing in the proposed Final Judgment provides ABI with 
any antitrust exemption for acquisitions of Distributors--even if ABI 
remains below the 10% limit set forth in Section V.B of the proposed 
Final Judgment. To the contrary, the notification provisions in Section 
XII of the proposed Final Judgment, which require ABI to notify the 
Department about certain Distributor acquisitions that are not 
otherwise reportable under the Hart-Scott-Rodino Antitrust Improvements 
Act of 1976, as amended (the ``HSR Act''), ensure that the Department 
will have the opportunity to evaluate the likely competitive effects of 
such Distributor acquisitions before they are completed--even if the 
acquisition would keep ABI under the 10% cap.
    Thus, giving deference to the Department's assessment, neglecting 
to place a total ban on future Distributor acquisitions does not place 
the proposed Final Judgment outside the reaches of the public interest.

[[Page 10791]]

c. Section V.B Appropriately Restricts ABI's Ability to Increase the 
Volume of Beer Sold By ABI-Owned Distributors

(i) A Nationwide Restriction is Appropriate

    Commenters Beer Distributors of Oklahoma, NBWA, and Consumer 
Watchdog questioned the proposed Final Judgment for imposing a 10% cap 
under Section V.B on a nationwide level, rather than imposing a 10% cap 
in each state in which ABI-Owned Distributors operate.\24\ The fact 
that the 10% cap is calculated based on ABI's national Beer sales does 
not provide a basis for concluding that the proposed Final Judgment is 
not in the public interest.
---------------------------------------------------------------------------

    \24\ Beer Distributors of Oklahoma comment at 5-6; NBWA comment 
at 13-15; Consumer Watchdog comment at 6.
---------------------------------------------------------------------------

    The Department was aware when it negotiated the proposed Final 
Judgment that ABI is prohibited in some states from owning Distributors 
and, accordingly, in states where it is allowed to own Distributors, 
ABI may sell more than 10% of its Beer volume through ABI-Owned 
Distributors. The imposition of a 10% nationwide cap--where no cap 
existed before--on the volume of Beer ABI can sell through ABI-Owned 
Distributors is a meaningful restriction on ABI's ability to restrict 
the sale of Third-Party Brewer's Beer through the acquisition of 
Distributors, especially considering, as the Department alleged in the 
Complaint, that ABI already sells approximately 9% of its beer in the 
United States through ABI-Owned Distributors. See Compl. ] 25.
    In addition, as discussed above, the proposed Final Judgment does 
not convey antitrust immunity upon ABI for any future Distributor 
acquisitions. Should a future proposed Distributor acquisition 
implicate competitive concerns in a particular state or region due to 
high concentration levels or other reasons, the Department will have 
the opportunity to review such acquisition. And Section XII of the 
proposed Final Judgment ensures that the Department will have the 
necessary notice to do so.
    Thus, giving deference to the Department's assessment, the 10% 
nationwide cap placed on the volume of Beer ABI-Owned Distributors may 
sell in the Territory is within the reaches of the public interest.

(ii) Safeguards Exist to Prevent ABI From Circumventing the Cap

    Commenters NBWA and Brewers Association additionally suggested that 
ABI could circumvent the 10% limit by selling existing ABI-Owned 
Distributors to ``friendly'' Independent Distributors and then buying 
more Distributors.\25\ The purpose of the Section V.B cap, however, is 
to limit the volume of Beer sold by ABI-Owned Distributors; other 
provisions in the proposed Final Judgment provide safeguards that 
reduce ABI's influence and control over Independent Distributors, 
including Sections V.D, V.E, and V.F.
---------------------------------------------------------------------------

    \25\ NBWA comment at 13-14; Brewers Association comment at 5-6.
---------------------------------------------------------------------------

    Commenter Professor Calkins asked the Department to clarify whether 
ABI can circumvent the 10% cap by acquiring a Distributor that 
specialized in non-ABI craft Beers and then, post-acquisition, having 
the Distributor sell ABI craft Beers instead.\26\ The Department 
clarifies that under the proposed Final Judgment, once a Distributor 
becomes an ABI-Owned Distributor, the volume of ABI Beer the 
Distributor sells will count toward the 10% cap.
---------------------------------------------------------------------------

    \26\ Professor Calkins comment at 2.
---------------------------------------------------------------------------

    Finally, commenter Wholesale Beer Association Executives urged the 
Department to include in the Section V.B 10% calculation the sales 
volume of any Distributor for which ABI exercises its ``match-and-
redirect'' right--that is, assigning to the Independent Distributor of 
ABI's choice the ability to purchase another Distributor upon certain 
agreed-upon terms--because ABI ``often [assigns] that right to a 
preferred distributor who often conforms to the policies regarding 
competing brand portfolios that are prohibited by the [proposed Final 
Judgment].'' \27\
---------------------------------------------------------------------------

    \27\ Wholesale Beer Association Executives comment at 9. The 
commenter refers to ABI's ``match-and-redirect'' right as ABI's 
right of first refusal.
---------------------------------------------------------------------------

    As noted above with respect to NBWA and Brewers Association's 
concerns about ABI circumventing the Section V.B cap, the purpose of 
the cap is to limit the volume of Beer sold by ABI-Owned Distributors; 
other provisions in the proposed Final Judgment provide safeguards that 
reduce ABI's influence and control over Independent Distributors, 
including ``friendly'' Independent Distributors and those who may 
benefit from ABI's exercise of its ``match-and-redirect'' right. For 
example, Section V.D.1 of the proposed Final Judgment prohibits ABI 
from conditioning the availability of ABI's Beer on an Independent 
Distributor's sales, marketing, advertising, promotion, or retail 
placement of a Third-Party Brewer's Beer, and Section V.D.3 prohibits 
ABI from 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 ABI's Beer.

(iii) The Definition of ABI-Owned Distributor is Appropriate

    Commenters NBWA and Wholesale Beer Association Executives urged the 
Department to broaden the definition of ABI-Owned Distributor to 
include additional, partially-owned Distributors, because they contend 
that ABI effectively controls Distributors in which it has a less-than-
50% ownership stake.\28\ The proposed Final Judgment defines an ABI-
Owned Distributor as ``any Distributor in which ABI owns more than 50% 
of the outstanding equity interests or more than 50% of the assets.'' 
\29\ The 50% ownership threshold is appropriate because it provides 
certainty for determining which Distributors are ABI-Owned Distributors 
for purposes of enforcing the Final Judgment. A 50% ownership threshold 
is also consistent with how the Department defined ABI-Owned 
Distributors in the ABI/Grupo Modelo decree.\30\
---------------------------------------------------------------------------

    \28\ NBWA comment at 16-19; Wholesale Beer Association 
Executives comment at 8-9 (recommending a 25% ownership threshold).
    \29\ Similarly, the proposed Final Judgment defines ABI to 
include certain other entities ``in which there is majority (greater 
than 50%) or total ownership or control between [ABI] and any other 
person.'' Proposed Final Judgment at II.A. Thus, in response to 
NBWA's request for clarification (see NBWA comment at 14), if ABI 
owns a 31.6% share of Craft Brew Alliance, Craft Brew Alliance does 
not meet the definition of ABI, and Craft Brew Alliance Beer thus 
does not count as ABI Beer for the purpose of Section V.B's 10% cap.
    \30\ See Final Judgment at 3, United States v. Anheuser-Busch 
InBev SA/NV, 1:13-CV-00127 (Oct. 24, 2013) (```ABI-Owned 
Distributor' means any Distributor in which ABI owns more than 50 
percent of the outstanding equity interests as of the date of the 
divestiture of the Divestiture Assets.'').
---------------------------------------------------------------------------

    Additionally, safeguards in other parts of Section V that reduce 
ABI's influence and control over Independent Distributors apply even 
where ABI has less than 50% ownership. For example, Section V.E of the 
proposed Final Judgment prohibits ABI from disapproving 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, and Section V.F provides that, when exercising 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 to exercise such right upon either

[[Page 10792]]

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.
    For these reasons, the ownership threshold for ABI-Owned 
Distributors does not undermine the effectiveness of the proposed Final 
Judgment.

8. Comments Requesting that Section V's Distribution Restrictions Also 
be Made to Apply to Molson Coors

a. Summary of Comments

    Four commenters asked that the distribution restrictions in Section 
V of the proposed Final Judgment--which apply only to ABI--also be made 
to apply to Molson Coors.\31\ In support of its comment, Wholesale Beer 
Association Executives reported that Molson Coors has already begun to 
implement tactics of concern similar to those of ABI, such as 
aggressive acquisition of craft brewers.\32\
---------------------------------------------------------------------------

    \31\ Virginia Beer Wholesalers Association comment at 3; 
Wholesale Beer Association Executives comment at 10-11; NBWA comment 
at 11-13; Consumer Watchdog comment at 7-8.
    \32\ Wholesale Beer Association Executives comment at 10-11.
---------------------------------------------------------------------------

b. Molson Coors' Distribution Practices Are Outside the Scope of this 
Proceeding

    Molson Coors is neither a defendant in this case nor a party to the 
proposed Final Judgment.\33\ Final judgments typically do not apply to 
divestiture buyers, and this case does not warrant an exception. The 
Complaint does not allege that either MillerCoors or Molson Coors--
unlike ABI--engaged in the type of restrictive distribution practices 
alleged in the Complaint. In fact, at the time the Complaint was filed, 
MillerCoors owned only one beer distributor in the United States, a 
Coors distributor in Denver, Colorado, and Molson Coors owned none.
---------------------------------------------------------------------------

    \33\ As required by Section V.A of the proposed Final Judgment, 
however, Molson Coors--in an amendment to its purchase agreement 
with ABI--has agreed not to cite the divestiture required by the 
proposed Final Judgment as a basis for modifying, renegotiating, or 
terminating any contract with any Distributor.
---------------------------------------------------------------------------

    If in the future Molson Coors were to acquire distributors or 
change its distribution practices in a manner that the Department 
believes might be anticompetitive, or to otherwise implement 
anticompetitive tactics as commenter Wholesale Beer Association 
Executives complains, the Department would have the ability to 
investigate those practices and seek appropriate relief if it 
determines that the practices violated the antitrust laws. Limiting the 
applicability of the proposed Final Judgment to ABI does not place the 
proposed Final Judgment outside the reaches of the public interest.

9. Comment Related to ABI's Obligation to Inform Independent 
Distributors of the Requirements of the Proposed Final Judgment

a. Summary of Comment

    NBWA urged that the proposed Final Judgment be amended to require 
ABI to (1) include the Final Judgment as an amendment to ABI's 
agreements with Independent Distributors, and (2) state in its 
agreements with Independent Distributors that the Final Judgment will 
govern any conflict between the agreements and the Final Judgment.\34\
---------------------------------------------------------------------------

    \34\ NBWA comment at 22-23; see also Wholesale Beer Association 
Executives comment at 9-10.
---------------------------------------------------------------------------

b. The Proposed Final Judgment Adequately Requires ABI to Inform 
Independent Distributors of the Requirements of the Final Judgment

    Section V.I of the proposed Final Judgment requires that, within 
ten days of the entry of the Final Judgment, ABI 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 distributes ABI's Beer in the Territory. Such 
notification must (1) explain the practices prohibited by Section V of 
the Final Judgment, (2) describe the changes ABI is making to any 
programs, agreements, or any interpretations of agreements required to 
comply with Section V of the Final Judgment, and (3) inform the 
Independent Distributor of its right, without fear of retaliation, to 
bring to the attention of the Monitoring Trustee any actions by ABI 
which the Independent Distributor believes may violate Section V of the 
Final Judgment.
    Requiring that the Final Judgment be made an amendment to ABI's 
existing agreements with its Independent Distributors would not 
increase the protections afforded to the Independent Distributors under 
Section V of the proposed Final Judgment. Requiring agreements with 
Independent Distributors to state that the Final Judgment will control 
in the event of a conflict with the language of the agreements would 
not increase the protections afforded to Independent Distributors. Nor 
would either requirement provide additional levels of notice to 
affected Distributors.
    ABI will be required to provide notice of the Final Judgment to all 
of its Independent Distributors \35\ and to comply with Section V of 
the proposed Final Judgment irrespective of any language to the 
contrary in its existing distribution agreements. Independent 
Distributors can raise their concerns with the Department or the 
Monitoring Trustee without fear of retaliation if ABI implements any 
programs, policies, or practices that an Independent Distributor 
believes violate Section V.
---------------------------------------------------------------------------

    \35\ Independent Distributors will also be able to review the 
proposed Final Judgment and other court filings in this matter on 
the Department's public Web site. The Department will make the Final 
Judgment publicly available once the Court enters it. See https://www.justice.gov/atr/case/us-v-anheuser-busch-inbev-sanv-and-sabmiller-plc.
---------------------------------------------------------------------------

10. Comment Related to ABI's Ability to Terminate Independent 
Distributors

a. Summary of Comment

    NBWA recommends that the proposed Final Judgment be modified to 
explicitly state that ABI may not terminate Independent Distributors 
based on their sales, promotion, advertising, marketing, or retail 
placement of Third-Party Brewers' Beer.\36\
---------------------------------------------------------------------------

    \36\ NBWA comment at 25.
---------------------------------------------------------------------------

b. The Proposed Final Judgment Already Prohibits ABI from Terminating 
an Independent Distributor Based on the Distributor's Sales, Promotion, 
Advertising, Marketing, or Retail Placement of a Third-Party Brewer's 
Beer

    The proposed Final Judgment already explicitly prohibits ABI from 
terminating an Independent Distributor based on the latter's sales, 
promotion, advertising, marketing, or retail placement of a Third-Party 
Brewer's Beer. Section V.D prohibits ABI from penalizing or ``in any 
other way condition[ing] its relationship with'' an Independent 
Distributor based on ``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.'' Section V.H additionally 
prohibits ABI from discriminating against, penalizing, or otherwise 
retaliating against any Distributor because such Distributor raises, 
alleges, or otherwise brings to the attention of the Department or the 
Monitoring Trustee an actual, potential, or perceived violation of 
Section V of the Final Judgment.

[[Page 10793]]

11. Other Comments Requesting that the Restrictions in Section V be 
Broadened

a. Summary of Comments

    In addition to the above, commenters requested that the relief in 
Section V of the proposed Final Judgment be broadened in a variety of 
ways. For example, commenters asked that:

 ABI be prohibited from rewarding, penalizing, or otherwise 
conditioning its relationship with Independent Distributors based on 
their ``storage, warehousing, transportation or administration'' of 
a Third-Party Brewer's Beers; \37\
---------------------------------------------------------------------------

    \37\ NBWA comment at 20.
---------------------------------------------------------------------------

 ABI be prohibited from exercising its match-and-redirect 
right if the originally-proposed purchaser is otherwise qualified to 
sell ABI's Beer; \38\
---------------------------------------------------------------------------

    \38\ Wholesale Beer Executives Association comment at 9.
---------------------------------------------------------------------------

 ABI be prohibited from exercising its match-and-redirect 
right or required when exercising its match-and-redirect right to 
pay the seller the full purchase price in consideration of its 
release of all brand rights for Third-Party Brewers' Beer without 
any additional consideration; \39\
---------------------------------------------------------------------------

    \39\ Yuengling comment at 14.
---------------------------------------------------------------------------

 ABI be barred from financing, directly or indirectly, the 
operations of any Independent Distributor; \40\ and
---------------------------------------------------------------------------

    \40\ Yuengling comment at 15.
---------------------------------------------------------------------------

 ABI be barred from manipulating ``delivered price'' amounts 
to similarly situated Independent Distributors as a way to 
incentivize Independent Distributors to carry only ABI Beer 
brands.\41\
---------------------------------------------------------------------------

    \41\ Yuengling comment at 15.

b. Section V Meaningfully Restricts ABI's Ability to Reward or Penalize 
Independent Distributors Based on Their Relationships with Third-Party 
Brewers

    As discussed in the preceding sections, the changes to ABI's 
practices regarding Independent Distributors imposed by the proposed 
Final Judgment appropriately address the competitive effects of the 
transaction that are alleged in the Complaint and will increase Third-
Party Brewers' access to effective distribution to the substantial 
benefit of millions of consumers nationwide. The failure to include the 
additional restrictions suggested by these commenters does not move the 
proposed Final Judgment outside the scope of the public interest.

B. Comments Related to ABI's Ownership of Craft Breweries

1. Summary of Comments

    One commenter maintained that ABI should be prohibited from 
acquiring any brewers during the period of the Final Judgment.\42\ 
Another commenter asked that craft beers owned by ABI be required to 
identify ABI's ownership on their packaging.\43\
---------------------------------------------------------------------------

    \42\ Consumer Watchdog comment at 6.
    \43\ Ninkasi comment at 2.
---------------------------------------------------------------------------

2. The Proposed Final Judgment Adequately Ensures that the Department 
May Evaluate ABI's Acquisition of Craft Brewers

    Restricting ABI from acquiring craft breweries or requiring ABI to 
label its craft beer as brewed by ABI is not necessary for the proposed 
divestiture to be effective in remedying the harms alleged in the 
Complaint. Although ABI has acquired multiple craft breweries over the 
past several years, those acquisitions were not at issue with respect 
to ABI's proposed acquisition of SABMiller, and the Complaint does not 
contain any allegations related to those acquisitions. Beer labeling 
similarly was not an issue implicated by the transaction and was not 
made a part of the Complaint. Accordingly, a remedy directed to such 
requirements is beyond the scope of this APPA proceeding, and the 
absence of such a remedy does not provide a basis for rejecting the 
proposed Final Judgment. See US Airways, 38 F. Supp. 3d at 76 (`` 
`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. . . .' '' (quoting Graftech, 2011 WL 1566781, 
at *13)).
    In addition, Section XII of the proposed Final Judgment provides 
the Department with the ability to review ABI's acquisition of craft 
brewers in the United States, even if those acquisitions do not 
otherwise meet the filing thresholds of the HSR Act. As a result, the 
Department will be able to evaluate the likely competitive effects of 
any proposed acquisition of craft brewers by ABI and to challenge the 
transaction if the Department concludes that the proposed acquisition--
whether by itself or in combination with other transactions or other 
conduct--is likely to substantially lessen competition in the U.S. beer 
industry.

C. Comments Related to the Eden Brewery

1. Summary of Comments

    Both the North Carolina Department of Justice (``NC DOJ'') and the 
International Brotherhood of Teamsters (``Teamsters'') submitted 
comments asserting that the Department should have required the 
divestiture of the MillerCoors brewery in Eden, North Carolina. 
MillerCoors closed the Eden brewery in September 2016. Both the NC DOJ 
and Teamsters assert that the Department should have required such 
relief because the fact that MillerCoors announced the closure of its 
Eden brewery two days before ABI and SABMiller announced their merger 
negotiations raises concerns that MillerCoors had anticompetitive 
motives when deciding to close this brewery and declining to sell it to 
another brewer.\44\ As additional support for their comments, the NC 
DOJ and the Teamsters also point to the Department's requirement in the 
final judgment in the ABI/Grupo Modelo transaction \45\ that 
Constellation Brands, the divestiture buyer in that transaction, 
purchase and expand a legacy Grupo Modelo brewery in Mexico.
---------------------------------------------------------------------------

    \44\ NC DOJ comment at 2 (Attachment 11); Teamsters comment at 
23 (Attachment 12).
    \45\ Final Judgment at 13-16, United States v. Anheuser-Busch 
InBev SA/NV, 1:13-CV-00127 (Oct. 24, 2013).
---------------------------------------------------------------------------

2. The Requested Divestiture of the Eden Brewery is Outside the Scope 
of this Action

    The Department took the allegations about the closing of the Eden 
brewery seriously and considered the circumstances surrounding that 
closure during the Department's investigation of the transaction. Among 
other things, the Department obtained and reviewed documents related to 
the brewery closure, asked questions about its closure, and met with 
the relevant parties. In reviewing such information, the Department did 
not uncover evidence suggesting that MillerCoors' decision to close the 
Eden brewery was related to ABI's proposed acquisition of SABMiller. 
Accordingly, the Complaint did not allege that the Eden brewery closure 
was an anticompetitive effect of the transaction, nor did the 
Department seek relief related to the Eden brewery as part of the 
proposed Final Judgment.
    The Department understands that the NC DOJ is conducting its own 
investigation into whether any competition-related laws have been 
violated in connection with the closure of the Eden brewery.\46\ The NC 
DOJ's comment indicates that the evidence it has reviewed to date 
``confirms [the NC DOJ's concerns] that anticompetitive motives may 
have played a part regarding the closure of the Eden brewery and the 
accompanying lack of meaningful effort to sell it.'' \47\ The 
Department has great respect for the NC DOJ and has worked with that 
office cooperatively on many occasions. However, the Department made a

[[Page 10794]]

decision, based on the evidence available to it at the time, not to 
allege that closure of the Eden brewery was a competitive effect of the 
transaction. Should the NC DOJ develop additional evidence, nothing in 
the proposed Final Judgment prevents the NC DOJ from seeking further 
relief under applicable federal or state laws--including relief related 
to the Eden brewery.
---------------------------------------------------------------------------

    \46\ NC DOJ comment at 3.
    \47\ NC DOJ comment at 3.
---------------------------------------------------------------------------

    Additionally, the circumstances here are distinguishable from those 
in the ABI/Grupo Modelo matter. In ABI/Grupo Modelo, the Department 
required the divestiture buyer, Constellation, to purchase and expand 
the brewery in question because, in order for the divestiture to be 
effective, Constellation needed to be able to produce all Modelo-
branded beer in Mexico but did not have its own Mexican brewery. As the 
Department noted in the Competitive Impact Statement in ABI/Grupo 
Modelo: ``Requiring the buyer of divested assets to improve those 
assets for the purposes of competing against the seller is an 
exceptional remedy that the United States found appropriate under the 
specific set of facts presented here. . . . No other combination of 
Modelo's brewing assets would have properly addressed the competitive 
harm caused by the proposed merger and allowed the acquirer of the 
Divestiture Assets to compete as effectively and economically with ABI 
as Modelo does today.'' \48\ By contrast, in this case, the ABI/
SABMiller transaction and divestiture to Molson Coors does not affect 
the brewing capacity of MillerCoors in the United States.
---------------------------------------------------------------------------

    \48\ Competitive Impact Statement at 13, United States v. 
Anheuser-Busch InBev SA/NV, 1:13-CV-00127 (Apr. 19, 2013).
---------------------------------------------------------------------------

    Accordingly, the NC DOJ's and the Teamsters' concerns about the 
closure of the Eden brewery do not provide a basis for questioning the 
Department's determination--which is entitled to deference--that the 
proposed Final Judgment provides an effective and appropriate remedy 
for the likely anticompetitive harm arising out of ABI's proposed 
acquisition of SABMiller.

D. Other Comments

    Commenters raised a variety of other procedural and substantive 
concerns, recommending that the proposed Final Judgment be amended in 
numerous respects. As discussed below, these recommendations include: 
requiring ABI to adopt an updated antitrust compliance policy; \49\ 
expanding the role of the Monitoring Trustee; \50\ expressly stating 
that any action taken by ABI remains subject to applicable antitrust 
laws; \51\ preventing ABI-Owned Distributors from managing or making 
recommendations concerning the schematics of retailers; \52\ 
restricting ABI from vertically integrating into the retail channel; 
\53\ preventing ABI from using sales data from third parties to punish 
distributors; \54\ modifying the term of the proposed Final Judgment; 
\55\ and clarifying certain references to Third Party Brewers.\56\ 
Commenters also raised questions about the Department's use of certain 
data sources in the Complaint and proposed Final Judgment \57\ and 
recommended that in the future the Department publish on its public 
website the end of the 60-day public comment period.\58\
---------------------------------------------------------------------------

    \49\ Consumer Watchdog comment at 7; NBWA comment at 24-25.
    \50\ Consumer Watchdog comment at 8; NBWA comment at 23-24.
    \51\ Professor Calkins comment at 2-3.
    \52\ Ninkasi comment at 2.
    \53\ American Beverage Licensees comment at 1-3.
    \54\ NBWA comment at 20-22.
    \55\ NBWA comment at 24.
    \56\ Brewers Association comment at 3.
    \57\ American Beverage Licensees comment at 4; Beer Distributors 
of Oklahoma comment at 2.
    \58\ Professor Calkins comment at 1-2.
---------------------------------------------------------------------------

1. Comments Related to a Potential Antitrust Compliance Policy

a. Summary of Comments

    Consumer Watchdog and NBWA urged the Court to require ABI to update 
its antitrust compliance policy, with mandatory employee training.\59\ 
Consumer Watchdog contended that the Department should approve ABI's 
antitrust compliance policy, while NBWA recommended that the Monitoring 
Trustee be tasked with drafting and overseeing ABI's compliance policy. 
NBWA noted that the Department required mandatory compliance programs 
in United States v. Apple, Inc. and United States v. Bazaarvoice, 
Inc.\60\
---------------------------------------------------------------------------

    \59\ NBWA comment at 24-25; Consumer Watchdog comment at 7.
    \60\ NBWA comment at 25; see Final Judgment at 11, United States 
v. Apple, Inc., No. 1:12-cv-02826 (S.D.N.Y. Sept. 5, 2015) (``The 
External Compliance Monitor shall have the power and authority to 
review and evaluate Apple's existing internal antitrust compliance 
policies and procedures and the training program required by Section 
V.C of this Final Judgment, and to recommend to Apple changes to 
address any perceived deficiencies in those policies, procedures, 
and training.''); Third Amended Final Judgment at 9, United States 
v. Bazaarvoice, Inc., No. 3:13-cv-00133 (N.D. Cal. Dec. 2, 2014) 
(``Defendant shall designate, within ninety (90) days of entry of 
this Final Judgment, an internal Compliance Officer who shall be an 
employee of Defendant with responsibility for administering 
Defendant's antitrust compliance program and helping to ensure 
compliance with this Final Judgment.'').
---------------------------------------------------------------------------

b. The Absence of a Required Compliance Policy Does Not Undermine the 
Effectiveness of the Proposed Final Judgment

    The circumstances here do not warrant requiring ABI to have an 
antitrust compliance policy approved by the Department or the 
Monitoring Trustee. The Complaint does not allege that ABI has 
previously violated the antitrust laws. Rather, it asserts that ABI's 
acquisition of SABMiller would violate Section 7 of the Clayton Act. 
Moreover, the Complaint does not contain any allegations related to 
ABI's antitrust compliance policies.
    Those circumstances distinguish this case from Apple and 
Bazaarvoice. In Apple, the Department argued that ``serious violations 
of the antitrust laws occurred at Apple while its current program was 
in effect, and they were orchestrated by key executives and even a 
member of Apple's legal team.'' \61\ In addition, Apple's counsel and a 
person involved in the antitrust violation could not recall receiving 
antitrust compliance training.\62\ Bazaarvoice involved a Final 
Judgment that was ordered after a trial had determined that the 
defendant had violated the antitrust laws.\63\ Neither of those 
circumstances is analogous to this case where ABI has agreed to a 
settlement with the Department without an allegation or finding that 
ABI previously violated the antitrust laws. Thus, the lack of a 
requirement for a compliance policy does not undermine the 
effectiveness of the proposed Final Judgment.
---------------------------------------------------------------------------

    \61\ Memorandum in Support of Plaintiffs' Revised Proposed 
Injunction at 5-6, United States v. Apple, Inc., No 1:12-cv-02826 
(S.D.N.Y. Aug. 13, 2013).
    \62\ Memorandum in Support of Plaintiffs' Revised Proposed 
Injunction at 6, United States v. Apple, Inc., No 1:12-cv-02826 
(S.D.N.Y. Aug. 13, 2013).
    \63\ See United States v. Bazaarvoice, Inc., No. 13-cv-00133, 
2014 WL 203966 (N.D. Cal. Jan. 8, 2014).
---------------------------------------------------------------------------

2. Comments Related to the Monitoring Trustee

a. Summary of Comments

    Consumer Watchdog recommended that the Monitoring Trustee be given 
the ability to interpret the proposed Final Judgment broadly to prevent 
ABI from ``getting around'' its terms.\64\ As discussed above, NBWA 
recommended that the Monitoring Trustee be tasked with drafting and 
overseeing the compliance policy that NBWA urged was necessary.\65\ 
NBWA also recommended that the Monitoring Trustee's appointment should 
be for the full ten-year term of the proposed Final Judgment.\66\ The 
Virginia Beer

[[Page 10795]]

Wholesalers Association urged that the proposed Final Judgment include 
specific timelines for both the submission of recommendations by the 
Monitoring Trustee and the acceptance, modification, or rejection of 
those recommendations by the Department, and also that the proposed 
Final Judgment be amended to require timely publication of the 
Monitoring Trustee's recommendations to the Department and the ultimate 
disposition of the recommendations.\67\
---------------------------------------------------------------------------

    \64\ Consumer Watchdog comment at 8.
    \65\ NBWA comment at 24-25.
    \66\ NBWA comment at 23-24.
    \67\ Virginia Beer Wholesalers Association comment at 2.
---------------------------------------------------------------------------

b. The Monitoring Trustee Already Has the Ability to Monitor ABI's 
Compliance with the Proposed Final Judgment

    The Monitoring Trustee has been appointed by the Department and 
approved by the Court to help ensure that the proposed Final Judgment 
will be properly enforced. (See Docket Entry 13 (Order approving United 
States' appointment of Monitoring Trustee)). The Monitoring Trustee 
works closely with and regularly reports to the Department and, as 
appropriate, will report to the Court. If the Monitoring Trustee has 
particular concerns, he can bring those concerns to the attention of 
the Department and the Court. The Department and the Court can then 
appropriately respond to those concerns or empower the Monitoring 
Trustee to take appropriate actions to address those concerns. The 
powers possessed by the Monitoring Trustee are adequate to effectively 
monitor ABI's compliance with the proposed Final Judgment.
    Under Section VIII.I of the proposed Final Judgment, the Monitoring 
Trustee must serve until the sale of all the Divestiture Assets is 
finalized, 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 Department, in its sole discretion, 
authorizes the early termination of the Monitoring Trustee's service. 
Because ABI's obligations under Section V of the proposed Final 
Judgment will continue throughout the ten-year term of the decree, the 
Department may determine in its discretion that the Monitoring Trustee 
should serve the full ten-year term. NBWA has provided no basis for the 
Court to substitute NBWA's opinion that the Monitoring Trustee must be 
appointed for the full ten-year term of the proposed Final Judgment for 
the Department's discretion as to the appropriate length of the 
Monitoring Trustee's appointment, which, as noted above, could last 
throughout the duration of the decree.
    Section VIII.H of the proposed Final Judgment requires the 
Monitoring Trustee to file reports every 90 days--or more frequently as 
needed--with the Department and, when appropriate, with the Court 
setting forth ABI's efforts to comply with its obligations under the 
proposed Final Judgment. Under Section VIII.B, if the Monitoring 
Trustee determines that ABI has violated the Final Judgment or breached 
a related agreement, the Monitoring Trustee must recommend an 
appropriate remedy to the Department, which, in its sole discretion, 
can accept, modify, or reject a recommendation to pursue a remedy. 
There is no sound basis for the Court to substitute for the 
Department's discretion a preference that the Monitoring Trustee's 
recommendations, and their resolutions, be made public.

3. Comment Related to the Application of Law to ABI

a. Summary of Comment

    Wayne State University Law Professor Stephen Calkins indicated that 
the proposed Final Judgment should make clear that, notwithstanding the 
proposed Final Judgment, ABI remains subject to all existing antitrust 
laws.\68\
---------------------------------------------------------------------------

    \68\ Professor Calkins comment at 2-4.
---------------------------------------------------------------------------

b. ABI Remains Subject to All Applicable Antitrust Laws

    ABI remains subject to all applicable antitrust laws. The proposed 
Final Judgment does not restrict the application of those laws to ABI 
or provide an antitrust exemption to ABI for conduct addressed by the 
proposed Final Judgment. In fact, Section XII of the proposed Final 
Judgment, relating to future ABI acquisitions, places greater reporting 
requirements on ABI than required under the HSR Act to help ensure its 
compliance with applicable antitrust laws. Expressly stating in the 
proposed Final Judgment that the proposed Final Judgment does not 
supplant the antitrust laws is unnecessary.

4. Comment Related to ABI's Ability to Make Recommendations Regarding 
Retailer Schematics

a. Summary of Comment

    Ninkasi asked that ABI-Owned Distributors be prohibited from 
managing shelf schematics at retailers that sell Beer.\69\ Ninkasi 
states that ABI-Owned Distributors typically do not carry non-ABI Beer 
brands and that they set retailers' shelves in a way that maximizes ABI 
Beer sales ``over any rational set that would otherwise better serve 
the retail customer and consumer.'' \70\
---------------------------------------------------------------------------

    \69\ Ninkasi comment at 2.
    \70\ Ninkasi comment at 2.
---------------------------------------------------------------------------

b. The Harms Alleged in the Complaint Do Not Justify the Requested 
Restrictions on Retail Shelf Schematics

    As discussed above, the 10% cap in Section V.B appropriately 
restricts ABI's ability to use ABI-Owned Distributors to disadvantage 
Third-Party Brewers. Moreover, the Complaint does not include 
allegations related to ABI's influence over retailers, through ABI-
Owned Distributors or otherwise. Nor do such concerns arise from the 
merger of ABI and SABMiller. Thus, Ninkasi's assertion that the 
Department should restrict ABI-Owned Distributors from managing retail 
shelf schematics concerns a matter outside the scope of this APPA 
proceeding. See US Airways, 38 F. Supp. 3d at 76 (`` `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. . . .' '' (quoting Graftech, 2011 WL 1566781 at *13)).

5. Comment Related to ABI's Ability to Vertically Integrate into Retail 
Sales

a. Summary of Comment

    American Beverage Licensees expressed concern that the ABI/
SABMiller transaction, ``along with recent actions by ABI and the 
market reactions they might trigger, could lead to increased vertical 
integration and tied-house opportunities in the beverage alcohol 
marketplace,'' which American Beverage Licensees argues would ``be to 
the detriment of a competitive retail beverage alcohol environment.'' 
\71\ American Beverage Licensees stated that, over the past decade, ABI 
has ``encroached on traditional beer retailing establishments across 
the country, and now has direct brewery control of 30 or more on-
premise beer retailing establishments that include thousands of seats 
with tied house opportunities.'' \72\ American Beverage Licensees 
further stated that the proposed Final Judgment ``stops at the water's 
edge and does not wade into concerns that [the ABI/SABMiller] merger 
could have future anticompetitive implications for America's 
independent beverage retailers.'' \73\
---------------------------------------------------------------------------

    \71\ American Beverage Licensees comment at 1.
    \72\ American Beverage Licensees comment at 2.
    \73\ American Beverage Licensees comment at 3.

---------------------------------------------------------------------------

[[Page 10796]]

b. The Proposed Final Judgment Prevents ABI from Further Vertically 
Integrating as a Result of the SABMiller Acquisition and Provides the 
Department with Advance Notice of, and an Opportunity to Review, Future 
Acquisitions by ABI

    The proposed Final Judgment requires ABI to divest SABMiller's 
entire U.S. business, which ABI did on October 12, 2016. Accordingly, 
the proposed Final Judgment prevents ABI from further vertically 
integrating through its acquisition of SABMiller. Moreover, Section XII 
of the proposed Final Judgment requires ABI to provide the Department 
with advance notice of, and an opportunity to evaluate, ABI's 
acquisition of Beer brewers--including brewers that own restaurants or 
tap rooms. This provision applies to acquisitions of brewers by ABI 
that would not otherwise be reportable under the HSR Act. Accordingly, 
the proposed Final Judgment provides the Department with an increased 
ability to evaluate ABI's acquisitions of brewers that own retail 
establishments and determine whether any such acquisitions could lead 
to anticompetitive effects.
    Moreover, ABI's previous acquisitions of on-premise beer retailers 
were not at issue with respect to the ABI/SABMiller transaction, and 
the Complaint does not allege any harm to competition resulting from 
ABI's ownership of such retailers. Accordingly, a remedy directed to 
ABI's existing ownership of on-premise beer retailers would be outside 
of the scope of this APPA proceeding. See US Airways, 38 F. Supp. 3d at 
76.

6. Comments Related to Use of Certain Data Sources in the Complaint and 
Proposed Final Judgment

a. Summary of Comments

    American Beverage Licensees and the Beer Distributors of Oklahoma 
noted that in the Complaint, the Department uses IRI data to define 
ABI's market share and claim that IRI data is not an appropriate 
measure of market share because it focuses on large stores in the off-
premise channel.\74\ Separately, the Wholesale Beer Association 
Executives and NBWA each expressed concern that Section V.B of the 
Final Judgment relies on ABI's BudNet data to measure the percentage of 
Beer volume sold through ABI-Owned Distributors. NBWA stated that 
``currently, there is no method for independently verifying the 
accuracy of ABI's self-reporting BudNet data and the accuracy of its 
reporting to DOJ.'' \75\ Similarly, Wholesale Beer Association 
Executives stated, ``ABI's BudNet system is completely reliant on ABI's 
self-reporting, is not subject to transparent oversight, and could be 
subject to manipulation by ABI in calculating whether future 
acquisitions exceed the 10% threshold established by the [proposed 
Final Judgment].'' \76\
---------------------------------------------------------------------------

    \74\ American Beverage Licensees comment at 4; Beer Distributors 
of Oklahoma comment at 2.
    \75\ NBWA comment at 15.
    \76\ Wholesale Beer Association Executives comment at 7.
---------------------------------------------------------------------------

b. The Data Sources Referenced in the Complaint and the Proposed Final 
Judgment are Appropriate

    The IRI data relied upon by the Department in calculating market 
shares provided the best available indicator of brewers' future 
competitive significance for the harms alleged in the Complaint. Using 
IRI data was therefore appropriate. Moreover, the Department did not 
use market share data to exclude any geographic areas from the required 
divestiture. Rather, the proposed Final Judgment required ABI to divest 
SABMiller's business throughout the United States. The Department's use 
of IRI data to measure market shares therefore does not affect whether 
the proposed Final Judgment was in the public interest.
    The proposed Final Judgment does not require the use of BudNet data 
to measure the percentage of ABI Beer sold through ABI-Owned 
Distributors. Section V.B of the proposed Final Judgment prohibits ABI 
from acquiring ``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.'' Attachment C to the proposed Final Judgment states that 
Beer volume shall be calculated based on ``the most comprehensive data 
[used by ABI at the time of the calculation] (currently, ABI's BudNet 
system), during the Relevant Period.'' As a result, the proposed Final 
Judgment contemplates the use of the most comprehensive data ABI has 
available. The Department believes that ABI, rather than a third party, 
will possess the most robust data to show the volume of its Beer sales. 
Moreover, both the Department and the Monitoring Trustee are well-
positioned to investigate whether BudNet remains the most comprehensive 
data for ABI's Beer volume and ensure that ABI uses for this 
calculation the most comprehensive data then available.

7. Comments Related to ABI's Use of Third-Party Sales Data

a. Summary of Comments

    The NBWA and Professor Calkins asserted that the proposed Final 
Judgment permits ABI to access sales information of its Independent 
Distributors, including Independent Distributors' sales of the Beers of 
Third-Party Brewers. They contended that ABI could use such information 
to take action against Independent Distributors due to the Independent 
Distributors' treatment of Third-Party Brewers or sales of Third-Party 
Brewers' Beer.\77\
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    \77\ NBWA comment at 22; Professor Calkins comment at 4.
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b. The Proposed Final Judgment Protects Distributors Against ABI's 
Unauthorized Use of Third-Party Sales Data

    The proposed Final Judgment limits the information that ABI can 
request or require an Independent Distributor to report. Under Section 
V.G, ABI cannot request or require that Independent Distributors 
report, ``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.'' ABI can, however, 
request that Independent Distributors report ``general financial 
information . . . [for ABI] 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.'' But, as Section V.G makes clear, ABI cannot request from 
Independent Distributors information that would ``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.''
    The information that ABI is permitted to receive under the proposed 
Final Judgment is relevant to ABI's ordinary course business decisions 
that are unrelated to an Independent Distributor's sale of Third-Party 
Brewers' Beers. ABI has a legitimate interest in information about 
Independent Distributors' sales of ABI

[[Page 10797]]

products. ABI also has a legitimate interest in assessing the financial 
health of Independent Distributors, and an Independent Distributor's 
total sales may be relevant to that assessment. The proposed Final 
Judgment properly balances ABI's legitimate need for information about 
its business partners against the danger of ABI's obtaining information 
that it could use to punish Independent Distributors for their sales of 
the Beers of Third-Party Brewers.
    Nevertheless, the NBWA argues that the information that ABI is 
permitted to receive ``allows ABI to infer the aggregated revenue 
attributable to non-ABI beer'' and is thus ``sufficient to enable ABI 
to continue to target distributors that carry and promote rival 
brands.'' \78\ The NBWA requests that ``any actions taken against 
distributors based on this information or any difference in treatment 
between distributors with a high proportion of ABI sales and those with 
a low proportion of ABI sales be seen as a violation of the [proposed 
Final Judgment].'' \79\
---------------------------------------------------------------------------

    \78\ NBWA comment at 22.
    \79\ NBWA comment at 22.
---------------------------------------------------------------------------

    In fact, Section V.D of the proposed Final Judgment prohibits ABI 
from taking any adverse action against an Independent Distributor based 
upon that distributor's sales of a Third-Party Brewer's Beer. The 
proposed Final Judgment thus protects against the harm that the NBWA's 
comment seeks to prevent.

8. Comment Requesting to Extend and Periodically Reopen the Period for 
Public Comments

a. Summary of Comment

    The Virginia Beer Wholesalers Association requested that the period 
for public comment be extended until after the Final Judgment has been 
entered and periodically reopened to allow interested parties the 
opportunity to review and comment on the changes that ABI proposes to 
make to its programs and agreements with Distributors to comply with 
the proposed Final Judgment.\80\ The association writes that the 
closing of the public comment period prior to ABI's issuance of 
proposed amendments to its Distributor agreements and programs ``would 
severely limit the ability of distributors and regulators in Virginia, 
and in those states with similar franchise laws, to determine'' whether 
the proposed amendments would comply with state laws.\81\
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    \80\ Virginia Beer Wholesalers Association comment at 1.
    \81\ Virginia Beer Wholesalers Association comment at 2.
---------------------------------------------------------------------------

b. No Extension or Reopening of the Comment Period is Necessary Because 
the Department Will Approve ABI's Descriptions of its Changes to its 
Programs and Agreements with Distributors

    The Tunney Act sets forth specific procedures for the Court to 
approve consent judgments such as the proposed Final Judgment in this 
case. See 15 U.S.C. Sec. Sec.  16(b)-(f). As Virginia Beer Wholesalers 
Association suggested, those procedures contemplate that the period for 
public comment will precede the entry of the Final Judgment. See 15 
U.S.C. Sec.  16(b). No extension or reopening of the comment period is 
necessary because the Department must approve ABI's descriptions of its 
changes to its programs and agreements with Independent Distributors. 
Section V.I requires ABI to obtain the Department's approval of the 
notification that ABI must provide to Independent Distributors (1) 
explaining the practices prohibited by Section V of the Final Judgment, 
(2) describing the changes ABI is making to any programs, agreements, 
or any interpretations of agreements required to comply with Section V 
of the Final Judgment, and (3) informing the Independent Distributor of 
its right, without fear of retaliation, to bring to the attention of 
the Monitoring Trustee any actions by ABI which the Independent 
Distributor believes may violate Section V. As discussed above, the 
Monitoring Trustee will monitor ABI's compliance with the proposed 
Final Judgment, including with respect to changes to its agreements and 
programs with Independent Distributors. Industry participants and other 
interested parties are also welcome to contact the Department to 
express concerns about ABI's compliance with, or potential violations 
of, the proposed Final Judgment. As expressly stated in Section XVII, 
during the ten-year term of the proposed Final Judgment, the Department 
may apply to the Court ``for further orders and directions as may be 
necessary or appropriate to carry out or construe [the] Final Judgment, 
to modify any of its provisions, to ensure and enforce compliance, and 
to punish violations of its provisions.''
    Finally, nothing in the proposed Final Judgment prevents state 
regulators from determining whether ABI's programs or agreements with 
Independent Distributors violate state franchise or other laws.

9. Comments Related to Use of the Terms ``Third-Party Brewer's Beer'' 
and ``Third-Party Brewers' Beers''

a. Summary of Comments

    Commenter Brewers Association requested that the Department clarify 
that the proposed Final Judgment's prohibitions related to ABI's 
distributor incentive programs apply not only to programs that 
specifically reference a particular Third-Party Brewer's Beer but 
rather to incentive programs that apply to Third-Party Brewers' Beer in 
the aggregate.\82\ Similarly, Professor Calkins requested that the 
Department clarify that references to ``a Third-Party Brewer's Beer'' 
in proposed Final Judgment Sections V.D, V.E, and V.G apply 
individually and collectively to Third-Party Brewers.\83\
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    \82\ Brewers Association comment at 3.
    \83\ Professor Calkins comment at 2-4.
---------------------------------------------------------------------------

b. References to ``Third-Party Brewer's Beer'' Apply Individually and 
Collectively to Third-Party Brewers

    The Department hereby clarifies that references to Third-Party 
Brewer's Beer apply individually and collectively to Third-Party 
Brewers.

10. Comment Related to the Term of the Proposed Final Judgment

a. Summary of Comment

    Commenter NBWA requested that the proposed Final Judgment terminate 
not of its own accord at the end of a ten-year term but rather only 
after the Department, with the assistance of the Monitoring Trustee, 
has provided a report evaluating the competitive conditions in the U.S. 
beer industry and the Court has determined that the proposed Final 
Judgment has been effective.\84\
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    \84\ NBWA comment at 24.
---------------------------------------------------------------------------

b. The Ten-Year Term is Appropriate

    The typical term of the Department's consent decrees resolving 
violations of Section 7 of the Clayton Act is ten years. In addition, 
Section XVIII contemplates that the ten-year term of the proposed Final 
Judgment may be extended by the Court.
    The purpose of the proposed Final Judgment is not to broadly ensure 
that the U.S. beer market is competitive, but rather to cure the 
antitrust violations alleged in the Complaint. Thus, it is not 
appropriate to extend the term of the proposed Final Judgment based on 
a determination that the competitive conditions of the U.S. beer 
industry are unsatisfactory. Although the proposed

[[Page 10798]]

Final Judgment includes provisions that the Department believes will 
preserve competition in the U.S. beer industry that would likely be 
lost due to ABI's acquisition of SABMiller, generally improving the 
competitive conditions in the U.S. beer industry is beyond the scope of 
this APPA proceeding.

11. Comment Requesting the Department Publicize the Last Day of the 60-
day Public Comment Period

a. Summary of Comment

    Commenter Professor Calkins requested that the Department state on 
its public website the last day of the 60-day period for public 
comments on proposed consent decrees.\85\
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    \85\ Professor Calkins comment at 1-2.
---------------------------------------------------------------------------

b. The APPA Does Not Require the Department to State on its Public 
Website the Last Day for Public Comments on Consent Decrees

    The APPA sets forth specific procedures for the Court to approve 
consent judgments such as the proposed Final Judgment in this case. See 
15 U.S.C. Sec. Sec.  16(b)-(f). Those requirements do not include 
notice on the Department's public website of the last day of the 60-day 
period for public comments. The Department nevertheless appreciates 
Professor Calkins' suggestion and will consider implementing it in 
connection with future proposed final judgments.

VI. CONCLUSION

    After careful consideration of the public comments, the Department 
continues to believe that the proposed Final Judgment, as drafted, 
provides an effective and appropriate remedy for the antitrust 
violations alleged in the Complaint, and is therefore in the public 
interest. The Department will move this Court to enter the proposed 
Final Judgment after the comments and this response are published 
pursuant to 15 U.S.C. Sec.  16(d).

Dated: January 13, 2017
Respectfully submitted,
Michelle R. Seltzer (D.C. Bar No. 475482), David C. Kelly, David M. 
Stoltzfus, Attorneys for the United States, Litigation I Section, 
Antitrust Division, U.S. Department of Justice, 450 Fifth Street, N.W., 
Suite 4100, Washington, DC 20530, Telephone: (202) 353-3865, Facsimile: 
(202) 307-5802, E-mail: [email protected].

[FR Doc. 2017-03029 Filed 2-14-17; 8:45 am]
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