Ginsburg v. INBEV NV/SA
2010 U.S. App. LEXIS 22115
| 8th Cir. | 2010Background
- Missouri beer consumers sue to enjoin InBev's acquisition of Anheuser-Busch under Section 7 of the Clayton Act.
- Transaction closed; district court granted judgment on the pleadings, denying injunctive relief and any divestiture remedy.
- Pre-merger market context: A-B was the US brewer with ~50% share; InBev was the world’s largest brewer with substantial import presence and Labatt USA tied to U.S. market.
- Plaintiffs allege actual or perceived potential competition theories could lessen competition and raise beer prices in the U.S.
- District court found Plaintiffs’ § 7 theories speculative and denied preliminary injunctive relief; government approved final judgment with Labatt divestiture, but private divestiture remedy remained contested.
- Court concludes divestiture would be inappropriate here given delay, market effects, and equities; private indirect purchasers seek divestiture but are denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is divestiture an appropriate remedy for private § 7 claims? | Plaintiffs contend divestiture remedies are appropriate to unwind anticompetitive effects. | Defendants argue divestiture is not appropriate for a private plaintiff and would be drastic and impractical. | Divestiture is not an appropriate remedy for private § 7 claims. |
| Does the private indirect purchaser’s action fall within § 16 injunctive relief for a consummated merger? | Plaintiffs seek injunctive relief under § 16 for potential competition harms. | Remedy is limited and divestiture is only available remedy in this context; government approval reduces likelihood of relief. | Even if private plaintiffs may seek injunctive relief, divestiture is not warranted as a matter of law. |
| Did delay and litigation posture bar equitable relief of divestiture? | Plaintiffs timely filed; remedy should be available if theory could support relief. | Significant delays and post-merger consummation make divestiture inappropriate and hard to administer. | Delays weigh against granting divestiture; equitable relief denied. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard for antitrust claims)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) (plausibility standard extended to other cases)
- Calif. v. Am. Stores Co., 495 U.S. 271 (U.S. 1990) (divestiture as an antitrust remedy; equities balancing)
- United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316 (U.S. 1961) (divestiture as a tool in § 7 actions; balancing equities)
- Garabet, 116 F. Supp. 2d 1159 (C.D. Cal. 2000) (private divestiture remedies and equitable considerations)