ABI / Modelo Deal Gets DoJ Second Request

FILED AUGUST 20, 2012

Dear Client:

The Department of Justice has issued a second request for information related to the pending acquisition of Grupo Modelo by AB InBev. "The company intends to respond expeditiously to the second request and continues to expect the transaction to close during the first quarter of 2013," A-B InBev said in a statement. The DoJ had 30 days to issue such a request and was nearing the due date. The second request is fairly common in deals of this size.

However, a prominent antitrust attorney (and former DoJ lawyer) said that the ABI / Modelo deal will likely face more headwinds than the InBev / A-B deal didn't have in 2008. In that deal , the DoJ required that ABI jettison Labatt in the U.S., and ABI couldn't brew Labatt for U.S. importation. While this deal includes the sell off of Modelo's share of Crown Imports to Constellation, our source noted that the DoJ under the Obama administration has been much more aggressive in requiring concessions on large deals, as seen in Friday's requirement by the Antitrust Division to put the kibosh on Verizon Wireless' deal to co-market sell TV and broadband services from other cable companies in areas where Verizon sells its own TV and broadband service. "The Verizon deal sucked a lot of resources and time from the [Antitrust] Division, but now that that deal is done, they will turn their attention to the ABI deal," said the source, who wished to remain anonymous.

ON THE PROCESS. "The process is very confidential," says the antitrust expert. "They interview other brewers and distributors and other entities. They will ask for copious pricing information to find out the extent that Modelo brands have an impact on the pricing of A-B brands. At the end of the investigation, if there is a competitive problem, they will turn to the parties and ask them, 'how do you intend to solve these problems?' ABI has taken a 'fix it first' approach by selling off the rights to Modelo brands to Constellation. Sometimes those approaches work and sometimes they don't. The Division never suggests what the remedy should be, it relies on the companies to do that."

"An example of a 'fix it first' approach that didn't work is the Verizon case. The Justice Department entered into a consent decree basically saying these cable companies can't jointly market their products..... Similarly, they could restructure the arrangement with Modelo. Or they could require the divestiture of brands or branches, or they could just say no."

OTHER ISSUES: SMALL BREWERS AND BRANCHES. "One thing that will heighten the concern here is that there are very few industries with such diverse and vibrant small players. The Division will have a very heightened concern that this merger won't have any adverse effects on these small brewers, particularly over access to market issues and distribution. It's important to note that they can look at unrelated anticompetitive issues. This could be a Pandora's box. When InBev bought A-B in 2008, the DoJ really didn't look at the vertical integration issue very closely. It just wasn't on their radar. But today, with ABI buying distributorships, the issue I suspect will be looked at much more closely.... The small brewers from the Justice Department's view are critical because they are dynamic and destructive. You could see the DoJ restructure the deal to protect small brewers, such as an agreement with A-B to limit their ability to acquire more branches, or perhaps even require them to sell their branches. There is precedent for this with FTC cases involving soda bottlers."

But doesn't the deal with Constellation take care of a lot of these concerns? This attorney said that "generally when there is a merger with a firm as dominant as A-B the antitrust Division looks at those types of promises and arrangements with skepticism. Their job is to protect consumers. So they don't take those arrangements at face value. They will want to make sure Crown's incentive to compete won't changed after the acquisition...... I think ABI is asking the antitrust division to take a tremendous leap of faith to believe that Crown will be completely independent. Antitrust agencies have typically rejected such arrangements when they know that the the company as the manufacturer will have tremendous power over the costs of the product."

So while most analysts and observers believe the deal is a slam dunk, at least one top antitrust expert sees some headwinds to the deal's approval. But.... we note that ABI has never failed before to get things done. So we'll see.

BUD LIGHT PLATINUM PASSES MILLION BARREL MARK

Bud Light Platinum has already passed the million barrel mark in the five months to-date, said A-B in a memo to distributors. A-B will be rolling out 22oz bottles and 18 pack bottles. A-B will also be "significantly" stepping up marketing by 60% for the remainder of the year.

BEER BRIEFS:

HEINEKEN RAISED ITS BID for a controlling stake in Tiger Beer maker Asia Pacific Breweries to $4.47 billion over the weekend. Fraser and Neave agreed early Saturday to sell its 39.7% stake in APB to Heineken.

Until tomorrow, Harry

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-Winston Churchill

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