DeHoog et al v. Anheuser-Busch InBev, SA/NV et al

Filing 112

ORDER: Granting 41 Motion to Dismiss for Failure to State a Claim; Granting 43 Motion to Dismiss for Failure to State a Claim; Adopting Findings and Recommendation 102 . Accordingly, dismissal shall be with prejudice. Any outstanding motions are DENIED as moot. Signed on 10/03/2016 by Judge Ann L. Aiken. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
JAMES DEHOOG, ET AL.,
1:15-cv-02250-CL
Plaintiffs,

v.

ORDER

ANHEUSER-BUSCH INBEV, SA/NV;
SABMILLER, PLC,
Defendants.

AIKEN, District Judge:
On July 22, 2016, Magistrate Judge Mark D. Clarke filed a
Findings and Recommendation (#102), and the matter is now before
this Court.

See 28 U.S.C.

§

636 (b) (1) (B), Fed. R. Civ. P. 72 (b).

Plaintiffs have filed Objections (#106), Defendants have responded
to Plaintiffs' Objections (##108, 109) and I have reviewed the
file of this case de novo. 28 U.S.C.
1 - ORDER

§

636(b) (1); McDonnell

Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981).
I have given this matter de nova review. I find no error.
Accordingly, I ADOPT the Findings and Recommendation.

Defendants'

Motions to Dismiss (##41, 43) are GRANTED.
I turn then to the question of amendment.

Dismissal without

leave to amend is appropriate where amendment would be futile.
Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002).
After reviewing the Complaint, briefing, and the exhibits
submitted by both parties, I conclude that any amendment would be
futile, particularly in light of the Ninth Circuit's ruling in a
factually-similar case, Edstrom v. Anheuser-Busch InBev, 647 F.
App'x 733 (9th Cir. 2016).

In Edstrom, the court held that "[t]o

establish a prima facie case, a Section 7 plaintiff generally must
show that the challenged transaction would increase the
concentration of firms in the relevant market."

Id. at 735.

The

Ninth Circuit noted that the challenged transaction in Edstrom did
not "increase ABI's market share or the concentration of the U.S.
beer market," and found that the plaintiffs "failed to plausibly
allege that the challenged transaction is anti-competitive."

Id.

Plaintiffs in this case, like those in Edstrom, cannot
plausibly allege that the challenged transaction will increase
either ABI's market share or the concentration of firms in the
U.S. beer market.

Aside from the complete divestiture of SAB's

interest in MillerCoors, which was discussed at length by Judge

2 -

ORDER

Clarke, Plaintiffs' own exhibits show that the Department of
Justice has reached a settlement with ABI and SAB which will
prevent increased concentration in the U.S. beer industry.

Alioto

Deel. Ex. B, at 1.
Accordingly, dismissal shall be with prejudice.
outstanding motions are DENIED as moot~OlD

Any

~

It is so ORDERED and DATED this ~day of Sept9mse~, 2016.

ANN AIKEN
U.S. DISTRICT JUDGE

3 - ORDER