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Antitrust Action Defense Cases–Ginsburg v. InBev: Missouri Federal Court Grants Motion For Judgment On The Pleadings Of Antitrust Class Action

Antitrust Class Action Challenging Merger of Anheuser-Busch and InBev Fails as a Matter of Law because InBev could not Reasonably be Viewed as a “Potential Competitor” Prior to the Merger Missouri Federal Court Holds

Plaintiffs, characterizing themselves as “a group of Missouri beer consumers and purchasers,” filed a putative class action against Anheuser-Busch and InBev NV/SA challenging the proposed merger of the companies; the class action complaint alleged that “the merger “violates Section 7 of the Clayton Act because it would eliminate InBev as a ‘perceived’ and ‘actual’ potential competitor” in the United States beer market. Ginsburg v. InBev NV/SA, ___ F.Supp.2d ___ (E.D. Mo. August 3, 2009) [Slip Opn., at 1]. The theory underlying plaintiffs’ class action was that, even though InBev was not yet in the U.S. beer market, its “position on the ‘periphery of the market’ is an important consideration by U.S. brewers in the pricing and marketing of their products” and absent the merger InBev would likely enter the U.S. beer market in competition with Anheuser-Busch. Id., at 3-4. Defense attorneys moved the district court for judgment as a matter of law. Id., at 1-2. The district court granted defendants’ motion, finding the class action’s theory too speculative, id., at 4-5. The district court concluded that, despite InBev’s position as an international industry leader, “no rational actor would have viewed InBev as a perceived potential competitor prior to the merger.” Id., at 6. In fact, “Plaintiffs have not identified any indicators that other U.S. beer brewers believed that InBev was poised to enter the United States beer market.” Id., at 9. Accordingly, the court granted defendants’ motion and entered judgment in favor of defendants on the class action. Id., at 12.

The district court also denied plaintiffs’ request for leave to amend the class action complaint. Ginsberg, at 12. The court denied leave to amend for two reasons. First, because the request was “contained in the conclusion to its Response, not as a separate Motion” and, accordingly, was improper. Id. Second, the district court denied the request “due to the extensive and lengthy briefing of all parties as to the legal basis for the claims asserted,” id.

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