Appeal of District Court’s Dismissal of Case against InBev Heard by Eighth Circuit Court of Appeals

Bill McClellan, St. Louis Post-Dispatch

Lawyers still arguing over A-B sale

Wednesday morning, in a courtroom high atop the city in the Thomas F. Eagleton 
U.S. Courthouse and 27 floors removed from the reality of the street, a 
three-judge panel of the 8th Circuit Court of Appeals listened to lawyers argue 
about whether InBev ought to be allowed to buy Anheuser-Busch.

Wait a minute, I thought. This is already a done deal. The Clydesdales are 
charging two grand for an appearance. The Busch family is in exile. The new big 
shots speak Portuguese. Most importantly, the shareholders have their money.

Still, the courtroom was nearly filled with men and women in business suits, 
and all of them were seemingly paying close attention to the arguments.

I like lost causes as well as the next guy, but really, how do you unring this 
bell? It’s as if Cardinals fans were to go to court to argue that umpire Don 
Denkinger got the call wrong in the sixth game of the 1985 World Series when he 
ruled that the lead-off hitter in the ninth inning was safe at first. What 
would the court do? Get the 1985 Cardinals and Royals together again to replay 
the ninth inning?

One of the judges seemed to share my befuddlement. Judge Myron H. Bright mused 
aloud — as appellate judges so often do — that because InBev had already bought 
Anheuser-Busch, there would be a problem, would there not, if the court were to 
find that InBev ought not be allowed to buy Anheuser-Busch? What would the 
remedy be?

“Divestiture,” said attorney Joseph M. Alioto Jr.

That would mean that InBev would be required to divest itself of Anheuser-Busch.

“I’m puzzled,” said Bright. It takes a bit to get him puzzled. He has been 
hearing cases with the 8th Circuit for 41 years and eight months. He wondered 
aloud how divestiture would take place, and who would supervise it. “It’s 
mind-boggling,” he said.

The next lawyer approached the lectern. His name is Peter Moll, and he thought 
that InBev should be allowed to buy Anheuser-Busch. He made some legal point I 
could not follow about “perceived potential competition.”

Actually, Wednesday’s arguments had to do with a lawsuit filed in federal court 
in September 2008 at a time when the sale was imminent. The lawsuit sought to 
stop the sale on antitrust grounds. The sale went through in November of that 
year, but the lawsuit clunked along, anyway. Ultimately, it was dismissed. 
Wednesday was an appeal of that dismissal.

Moll is a high-priced guy from Washington. Court papers say that the local law 
firm working with him is Dowd-Bennett. Ed Dowd Jr. is a former U.S. attorney. 
James F. Bennett was one of the lead attorneys on the winning side when Metro 
unsuccessfully sued the designers and construction managers who built the 
light-rail extension. In other words, top guys.

Well, sure. InBev has deep pockets.

What about the lawyers on the other side? Alioto is no small potatoes. His 
grandfather was Joseph L. Alioto, longtime mayor of San Francisco, and his 
father, Joseph M. Alioto, is a nationally known antitrust attorney. Several 
other out-of-town law firms are also listed in court papers. Who’s paying them?

“I’m on my own coin,” Alioto told me. “If we win, the court can order the other 
side to pay our legal fees.

“

Under that theory, the plaintiffs’ lawyers are gambling that the court 
eventually will order InBev to divest itself of Anheuser-Busch. Does that seem 
realistic?

By the way, Alioto’s local counsel is Ted Schwartz. He has been practicing law 
longer than Bright has been on the bench. He is considered a very sharp fellow. 
He used to be known for the full-length mink coats he’d wear to court in the 
winter. He drives a Rolls-Royce. You don’t get those things by betting on 
inside straights. I asked Schwartz if this was really about getting a 
settlement from InBev.

After all, if the plaintiffs lose the appeal, they can ask for a hearing in 
front of the entire 8th Circuit, and if that fails, they still have the U.S. 
Supreme Court.

“This is Joe’s case,” Schwartz said.

I called Alioto. He explained that this case is really about helping consumers. 
He said that if InBev were required to come into the market as a competitor, it 
would create competition and consumers would not only get lower prices, they’d 
probably get better beer.

I asked if he were interested in a settlement. He said he did not want to talk 
about a settlement. “My focus is prevailing on the merits of the case,” he said.

I asked if he is a beer drinker. Yes, he said. What kind? Anchor Steam, he 
said. No, Bud, he said. I drink Bud.