James DeHoog; Brian Bouteller; Shonna Bouteller; Carly Bowen; Tom Butterbaugh; Erica I. Corona; Maria G. Corona; Chris Dennett; John Desbiens; Matthew Johnson; Cynthia A. Kreitzberg; Edward Lawrence; Jerusha Malaer; Robert Malaer; Michael Martin; Michael Mcatee; David Milligan; Jeff Reeder; Ralph Reeder; Wade Scaglione; Beth H. Silvers; Bradley O. Silvers; Patrice Wade, Plaintiffs-Appellants,
Anheuser-Busch InBev SA/NV; Sabmiller, PLC, Defendants-Appellees.
and Submitted May 15, 2018 Portland, Oregon
from the United States District Court for the District of
Oregon Ann L. Aiken, District Judge, Presiding D.C. No.
M. Alioto (argued) and Jamie L. Miller, Alioto Law Firm, San
Francisco, California; Rachele R. Selvig and Christopher L.
Cauble, Cauble and Cauble LLP, Grants Pass, Oregon; Gil D.
Messina, Messina Law Firm P.C., Holmdel, New Jersey; Jeffery
K. Perkins, Law Offices of Jeffery K. Perkins, Tiburon,
California; for Plaintiffs-Appellants.
Yonatan Even (argued), Cravath Swaine & Moore LLP, New
York, New York, for Defendants-Appellees.
Before: M. Margaret McKeown and Richard A. Paez, Circuit
Judges, and Cynthia A. Bashant, [*] District Judge.
panel affirmed the dismissal of an action brought under
§ 7 of the Clayton Act by consumers and purchasers of
beer, seeking to enjoin Anheuser-Busch InBev, SA/NV, from
acquiring SABMiller, plc.
condition of approving the transaction, the U.S. Department
of Justice required SABMiller to divest entirely its domestic
beer business. Because the divestiture left SABMiller without
a presence in the U.S. beer market, the consumers did not and
could not plausibly allege that ABI's acquisition of
SABMiller would substantially lessen competition in that
market. The panel held that the consumers therefore failed to
state a claim under the Clayton Act.
McKEOWN, Circuit Judge
case features a bevy of beer aficionados trying to undo the
acquisition of one brewing behemoth by another. James DeHoog
and other consumers and purchasers of beer
("Consumers") appeal the district court's
dismissal of their private antitrust action to enjoin
Anheuser-Busch InBev, SA/NV ("ABI") from acquiring
SABMiller, plc ("SAB"). Although the merger closed
in October 2016 with the blessing of antitrust authorities,
Consumers' private suit persists.
the district court, we conclude that Consumers failed to
state a claim under Section 7 of the Clayton Act, 15 U.S.C.
§ 18. As a condition of approving the transaction, the
U.S. Department of Justice ("DOJ") required SAB to
divest entirely its domestic beer business. Because the
divestiture left SAB without a presence in the U.S. beer
market, Consumers did not and could not plausibly allege that
ABI's acquisition of SAB would substantially lessen
competition in that market.
whose brands include Budweiser, Stella Artois, and Michelob
Ultra, is the largest producer and seller of beer in the
United States, comprising roughly 46 percent of the U.S.
market share. At the time of this suit, SAB was a
multinational brewing company that operated in the United
States exclusively through a joint venture with Molson Coors
Brewing Company ("Molson"). The SAB/Molson joint
venture, MillerCoors, LLC ("MillerCoors"), was the
second-largest producer and seller of beer in the United
States, controlling roughly 25 percent of the U.S. market
November 2015, ABI and SAB announced the terms of a $107
billion acquisition of SAB by ABI. As part of the
transaction, ABI also announced a contingent agreement with
Molson: upon completion of ABI's acquisition of SAB, SAB
would completely divest its interest in MillerCoors. Per the
terms of the agreement, Molson would acquire SAB's 50
percent voting interest and 58 percent economic interest in
MillerCoors, making MillerCoors a wholly-owned subsidiary of
Molson. Molson would maintain full control of the business
operations and resulting economic benefits of MillerCoors. In
short, ABI would acquire SAB but not before spinning off
SAB's ownership in MillerCoors (i.e., SAB's U.S.
interests) to Molson.
reviewing the proposed transaction for its effect on
competition, on July 20, 2016, the DOJ reached a settlement
with ABI to allow the acquisition to move forward. ABI was
required to divest SAB's entire U.S. business-including
SAB's ownership in MillerCoors-such that the settlement
would "prevent any increase in the concentration in the
U.S. beer industry." The settlement also prohibited ABI
from acquiring beer distributors or brewers without allowing
for DOJ review of the acquisition's likely competitive
effects and prevented ABI from engaging in certain