Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC delays hearing on challenge to Ardagh-Saint-Gobain combination until December 19, (Oct 25, 2013)

By Tobias J. Gillett, J.D., LL.M.

The administrative law judge overseeing the FTC’s challenge to Ardagh Group S.A.’s proposed $1.7 billion acquisition of Saint-Gobain Containers, Inc. has issued a revised scheduling order postponing the administrative hearing until December 19, as a result of a stay on the case entered during the partial shutdown of the federal government (In the Matter of Ardagh Group S.A., FTC Dkt. No. 9356, FTC File No. 131 0087).

On September 30, the FTC issued an order staying the administrative proceeding in its challenge to the transaction for the duration of the shutdown and for an additional five business days thereafter. As provided in the original scheduling order, the administrative hearing would have begun on December 2. Administrative Law Judge D. Michael Chappell’s order extends the evidentiary hearing date and pre-hearing deadlines pursuant to the September 30 order. The order required extension of the deadlines for the number of business days of the stay, subject to the ALJ’s discretion to adjust deadlines to the extent compatible with the hearing date.

The FTC issued an administrative complaint on July 1 against the proposed acquisition, alleging that the merger would reduce competition and result in two firms—the merged firm and Owens-Illinois—controlling more than 75 percent of the U.S. market for beer and spirits glass containers, resulting in higher prices for customers. The FTC is seeking (1) if the acquisition is consummated, divestiture or reconstitution of all associated and necessary assets to restore two or more distinct, viable, and independent businesses in the relevant market; (2) a prohibition against any transaction between Ardagh and Saint-Gobain that combines their businesses in the relevant markets; (3) a requirement that Ardagh and Saint-Gobain provide prior notice to the FTC of their acquisitions, mergers, and other combinations; and (4) a requirement to file periodic compliance reports with the Commission.

Ardagh has indicated its willingness to settle the FTC’s challenge, but the FTC remains unwilling to accept a settlement as long as Ardagh “appears to be wedded” to settlement offers that the agency believes would not resolve its concerns regarding the transaction.

Attorneys: Veena Viswanatha (Buckley Sandler LLP) for Saint-Gobain Containers, Inc. Wayne D. Collins (Shearman & Sterling LLP) for Ardagh Group S.A. Sebastian Lorigo for Federal Trade Commission.

Companies: Ardagh Group S.A.; Saint-Gobain Containers, Inc.; Compagnie de Saint-Gobain

News: Antitrust FederalTradeCommissionNews