Bloomberg News

AB InBev-Modelo Deal May Be Derailed by Slow-Track Judge

February 11, 2013

AB InBev-Modelo Deal Could Be Derailed by Slow-Tracking Judge

Bottles of Grupo Modelo SAB brand beer are displayed for a photograph in Mexico City. Delays in the AB InBev case could derail the deal if the litigation pushes past the termination date called for in the sale agreement. Photographer: Susana Gonzalez/Bloomberg

Anheuser-Busch InBev NV’s bid to buy Grupo Modelo SAB may face an obstacle unforeseen by the parties when the Justice Department sued to block the deal -- assignment of the case to Washington’s slowest federal judge.

U.S. District Judge Richard Roberts, who was randomly picked to handle antitrust litigation over the $20.1 billion deal, carries the largest backlog of unfinished cases and unresolved motions among his Washington colleagues, according to federal court data.

Last year, Roberts had 73 motions pending for more than six months -- almost three times more than the next slowest judge -- and more than 50 cases pending more than three years. In one 2003 case involving $190,000 of insurance payments, he took more than eight years to rule on a motion to dismiss.

“It helps the Justice Department,” Michael Carrier, an antitrust law professor at Rutgers University, said in an interview. “If they have a judge that is this slow -- and obviously this is something they could not have prepared for -- there’s no doubting this will help the government.”

Delays in the AB InBev case could derail the deal if the litigation pushes past the termination date called for in the sale agreement. The parties have until Dec. 30 to complete the transaction, and may extend it another 90 days if it’s in court. After that, Modelo may be able to walk away with the $650 million breakup fee.

AB InBev’s shares slid 0.2 percent to 63.99 euros in Brussels. They’ve fallen 7.7 percent since Jan. 30, the day before the Justice Department sued to block the deal. Modelo’s shares fell 13 centavos, or 0.1 percent, at 1:47 p.m. Mexico City time. The stock has fallen 3.8 percent since the suit.

Continuing Talks

Talks between AB InBev, the world’s biggest brewer, and the Justice Department were still proceeding when the suit was filed on Jan. 31, people familiar with the matter have said.

If the case does continue in court, Roberts must independently assess the government’s claim that the combination of the largest- and third-largest brewers of beer sold in the U.S. would violate antitrust law and “substantially lessen” competition. He will have to set a schedule that includes when to hold a preliminary injunction hearing, how many witnesses will be interviewed and give testimony as well as what documents the two sides must produce and exchange.

Settlement Pressure

“Case management will be important,” David Smutny, an antitrust partner at Orrick, Herrington & Sutcliffe LLP (1141L:US) in Washington, said in an interview.

The selection of Roberts could put additional pressure on the company to settle rather than test the government’s case in court, according to Edward Schwartz, an antitrust partner at Steptoe & Johnson LLP (1372L:US) in Washington, whose client once waited six months for a final ruling from the judge on a settlement with the department.

“I could imagine it increasing the motivation to some degree to work something out,” Schwartz, who isn’t involved in the case, said in a phone interview.

Marianne Amssoms, a spokeswoman for Leuven, Belgium-based AB InBev, and Gina Talamona, a Justice Department spokeswoman, declined to comment on Roberts’s assignment to the case.

Roberts, 59, was appointed to the court by President Bill Clinton in 1998. He was previously chief of the criminal section in the Justice Department’s civil rights division.

Marion Barry

Earlier, as an assistant U.S. attorney, he successfully prosecuted Washington’s mayor at the time, Marion Barry, in 1990 on a drug charge.

“In my experience, I think he’s a very thoughtful, careful judge,” Jeffrey Jacobovitz, an antitrust partner at Arnall Golden Gregory LLP who frequently practices in the Washington court, said in an interview.

In his 14 years on the bench, Roberts has handled about a dozen antitrust matters, according to court filings. None went to trial.

Six involved private lawsuits alleging price fixing or other anti-competitive behavior against companies such as Fannie Mae, AstraZeneca Plc and ExxonMobil Corp.

Six involved reviewing settlements between the Justice Department and merging companies, including Republic Services Inc (RSG:US).’s $4.42 billion acquisition of Allied Waste Industries Inc. in 2008.

Schwartz, who represented Republic Services, said he staked out Roberts’s chambers in an attempt to secure a signature from the judge to allow the deal to be completed while the case was pending.

Year End

“I did impress upon Judge Roberts the importance of a ruling by year-end so the deal could close,” he said. “I was pleasantly surprised it didn’t take as long as I feared it might.”

Roberts then took six months to issue a final judgment after a third party objected to the settlement.

One case on which he moved quickly was the Federal Trade Commission’s 2010 lawsuit to block Laboratory Corp. of America’s proposed $57.5 million purchase of Westcliff Medical Laboratories Inc. Two days after the filing, he granted LabCorp’s request to send the case to California.

On July 16, Roberts will become chief judge of the Washington court, adding administrative duties. As chief, he’ll oversee the court’s budget, security, media and U.S. agency relations, as well as preside over the grand jury.

The chief judge traditionally doesn’t take new cases, though he keeps his existing docket, according to Sheldon Snook, administrative assistant to the chief judge.

Roberts, who declined to be interviewed on a matter involving a pending case, has struggled with a backlog of cases for more than a decade.

Fair, Quick

“It’s important to me that we decide cases fairly and correctly, as well as efficiently and quickly,” Roberts told the publication Legal Times in 2002 after it reported he was consistently the slowest judge on the court. “I have been a public servant most of my career, and I take seriously the obligation to resolve disputes fairly and promptly.”

Follow-up articles by the weekly newspaper in 2006, 2008 and 2009 reported that he continued to maintain the largest backlog of any judge on the court.

As of March 31, Roberts’s outstanding docket of 73 motions more than six months old and 51 civil cases pending for more than three years made him the slowest federal judge in Washington, according to Administrative Office of the U.S. Courts data. That’s 47 more motions and 21 more cases than the next slowest judge.

Advantage Healthplan

One was a motion to dismiss a civil case filed against Advantage Healthplan Inc. by a Washington-area hospital seeking reimbursements for emergency care of five patients. It took Roberts more than eight years to decide that the hospital could proceed with claims against the insurer regarding two patients it treated.

Nationally, Roberts ranks seventh in the backlog of motions pending for more than half a year, according to court data.

By comparison, U.S. District Judge Ellen Huvelle, who presided over the government’s antitrust case against AT&T Inc.’s $39 billion bid for T-Mobile USA Inc. (166783Q:US), had no motions pending longer than six months and just one case on her docket longer than three years.

In the AT&T lawsuit, Huvelle sometimes made daily decisions in an attempt to get the case to a trial in six months. Within a week of the suit being filed, Huvelle had held a telephone conference with the parties and scheduled a hearing where she ordered both sides to be ready to talk about settlement prospects.

At the end of last week, AB InBev and the Justice Department jointly asked for a scheduling conference on Feb. 15 or as “soon thereafter as the court’s docket permits.”

Today, Roberts, saying AB InBev hadn’t responded to the government’s lawsuit yet, denied the request for the session. He didn’t set any new date or deadlines.

The case is U.S. v. Anheuser-Busch InBev NV, 13-cv-00127, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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