United States: ABI/SAB Miller Deal: DOJ Clarifies Best Efforts Clause In Proposed Final Judgment

As most members of the alcohol and beverage industry are aware, Anheuser-Busch InBev (ABI) acquired the global holdings of SABMiller in a more than $100 billion merger in October 2016. The Department of Justice (DOJ) required ABI to divest SABMiller's United States business, including its ownership interest in MillerCoors. Since November 2016, the parties have engaged in ongoing briefing seeking approval of a Proposed Final Judgment (PFJ) in the US District Court for the District of Columbia.

A key question in the latest round of briefing was the meaning of "best efforts" language in the PFJ.

  • The PFJ states that "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."
  • Additionally, a footnote in DOJ's motion to enter the PFJ stated that an independent distributor may make unsolicited recommendations to individual retailers to convert an ABI retail placement to a third-party brewer's beer "so long as such unsolicited recommendation does not result in more than a de minimis decrease in the sales volume or retail placement of ABI Beer in the Independent Distributor's assigned geographic area."

DOJ added a number of provisions into its orders since the confirmation of the new United States Assistant Attorney General for the Antitrust Division, Makan Delrahim. In its recent briefing, DOJ brought those changes to the PFJ. DOJ modified the PFJ as follows:

  1. Lowered the standard of proof from a "clear and convincing evidence" standard to a "preponderance of the evidence" standard. DOJ explained that while the former is needed to prove a decree violation in a civil contempt action, the latter is needed to prove a civil antitrust violation in the first instance.
  2. Added a provision relating to fee-shifting, requiring ABI to reimburse the United States for attorneys' fees, expert fees and costs incurred in connection with a successful consent decree enforcement effort. The United States has historically born the costs of decree enforcement investigations and proceedings.
  3. Added a provision that allows the United States to apply for a one-time extension of the term of the decree if the Court finds a violation of the PFJ.
  4. Added a provision permitting the United States to terminate the PFJ after five years, upon notice to the Court and parties.
  5. Revised the date from which the ten-year term of the PFJ runs. The order was to run for ten years after entry of a Final Judgment, because entry normally follows shortly after the PFJ is filed. The DOJ revised this clause to allow the date to be July 20, 2016, the date the PFJ was filed. DOJ explained that ABI has been complying with the provisions of the PFJ since July 20, 2016 so DOJ agreed that the ten-year term should start on that date.

The court received public comments and briefs from multiple amicus curiae (friends of the court). National Beer Wholesalers Association (NBWA) and Brewers Association (BA), who filed amicus briefs, worried that the best efforts language did not adequately protect the public from anticompetitive practices by ABI because the language was too ambiguous and would dissuade distributors from handling third-party beer. NBWA and BA argued that the vagueness of a "de minimis decrease" in ABI sales would force distributors to steer clear of any conduct that ABI could reasonably claim would violate the best efforts provision for fear of risking the loss of ABI business, and that third-party brewers would suffer as a result.

Responding to the amicus briefs, the DOJ on March 15 clarified somewhat the meaning of the best efforts clause. DOJ stated that:

  1. "A duty of best efforts is generally not interpreted to require exclusive efforts. And it is commonplace in the beer industry for distributors to owe best efforts to more than one brewer."
  2. The de minimis standard applies to unsolicited product placements that affect "the entirety of the distributor's assigned geographic area" and "even a product replacement that decreases ABI sales volume significantly at a particular retailer is unlikely to result in a more-than-de-minimis decrease in sales volume or retail placement of ABI Beer in the distributor's assigned geographic area."
  3. "[U]nsolicited product replacement is consistent with best efforts to ABI under some circumstances. Independent distributors remain free, for example, to sell Beers that compete with ABI's Beers by:

    1. replacing shelf space or tap handles currently occupied by ABI beers in response to the request of a retailer;
    2. promoting Third-Party Brewers' Beers without making specific recommendations as to which beers the retailer should remove from its shelf space or tap handles; or
    3. providing information to the retailer about changing consumer preferences for ABI and rival Beers."

It appears from DOJ's position that the above actions are measured against a best efforts standard and not hindered by the de minimis language in the PFJ and the ABI equity agreement. DOJ's clarifications to the PFJ give beer wholesalers more authority to promote third-party brands than many had feared. Brewers distributed by distributors that also distribute ABI's portfolio and distributors of ABI need to understand DOJ's clarifications to the language of the PFJ and equity agreement changes in order to protect their independence and continue to prosper in the face of ABI's best efforts contractual obligation. Judge Sullivan of the US District Court for the District of Columbia may now approve the Modified PFJ, or order a hearing on the matter, as requested by amicus curiae.

ABI/SAB Miller Deal: DOJ Clarifies Best Efforts Clause In Proposed Final Judgment

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions