## Facts

- Missouri beer consumers sued InBev NV/SA and Anheuser-Busch entities after InBev acquired Anheuser-Busch (A-B).
- Before the transaction, A-B was the largest U.S. brewer, while InBev was the world’s largest brewer and primarily sold imported brands in the United States.
- InBev’s U.S. presence included subsidiaries with brewing and distribution rights for certain brands (including Labatt-related U.S. rights), and InBev had previously sold U.S. brewing assets (including Rolling Rock and a Pennsylvania brewery) in 2006.
- In 2006, InBev and A-B entered an arrangement making A-B the exclusive U.S. importer of several InBev brands.
- In 2008, InBev pursued a public takeover of A-B; after litigation and negotiations, the companies agreed on a purchase, and the transaction closed.
- During regulatory review, a hold-separate order required InBev to keep certain Labatt-related assets separate pending antitrust resolution; otherwise, InBev and A-B operations were integrated after closing.
- Plaintiffs alleged the acquisition violated Clayton Act § 7 by eliminating InBev as an actual and perceived potential competitor in the U.S. beer market, which would reduce competition and raise prices.
- After failing to stop the merger before closing, plaintiffs sought equitable relief under Clayton Act § 16 in the form of divestiture to unwind the completed transaction.

## Issues

1. Whether consumer-plaintiffs stated a plausible Clayton Act § 7 claim based on potential-competition theories sufficient to support relief after the merger had closed.
2. Whether divestiture was an appropriate equitable remedy under Clayton Act § 16 to unwind a consummated and integrated merger, given the alleged competitive effects and the remedial equities.

## Decision

- The Eighth Circuit affirmed the district court’s judgment on the pleadings for defendants.
- The court concluded plaintiffs’ allegations did not justify divestiture of the completed transaction.
- The court held the remedial equities weighed heavily against divestiture, including hardship to employees and distributors and the risk that a breakup could harm competition and consumers.
- The court noted the consumer price benefits from divestiture were uncertain, while the competitive and operational disruption of unwinding the merged business could be substantial.

## Legal Principles

- Clayton Act § 7 may reach acquisitions that may substantially lessen competition, including under potential-competition theories, but a complaint must plausibly connect the theory to a concrete competitive benefit from the requested remedy.
- Clayton Act § 16 authorizes equitable relief, but post-consummation divestiture is extraordinary and depends on equitable balancing.
- In deciding whether to order divestiture of a completed merger, courts consider the likelihood the remedy will improve competition and consumer welfare, as well as countervailing harms such as disruption to integrated operations, employees, distributors, and market functioning.
- Where the asserted benefits of unwinding a merger are speculative and the breakup itself may damage competition or consumers, equitable relief in the form of divestiture may be denied.

## Conclusion

The Eighth Circuit upheld dismissal because the consumer-plaintiffs’ potential-competition theory and asserted price effects did not plausibly justify the exceptional remedy of divestiture after the merger had closed, and the balance of equities favored leaving the integrated transaction intact.


Ginsburg v. InBev NV/SA, 623 F.3d 1229 (8th Cir. 2010)