
    UNITED STATES of America, Plaintiff, v. JOS. SCHLITZ BREWING COMPANY and General Brewing Company, Defendants.
    Civ. A. No. 42127.
    United States District Court N. D. California, S. D.
    March 24, 1966.
    
      Lyle L. Jones, Anthony Desmond, James Figenshaw, Gilbert Pavlovsky, Antitrust Division, Dept, of Justice, San Francisco, Cal., John T. Cusack, Chicago, 111., for plaintiff United States.
    Richard J. Archer, Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, Cal., Joseph DuCoeur, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, 111., for defendant Jos. Schlitz Brewing Co.
    Loyd W. McCormick, McCutchen, Doyle, Brown, Trautman & Enersen, San Francisco, Cal., for defendant General Brewing Co.
    William J. Manning, Simpson, Thacher & Bartlett, New York City, for John Labatt Limited.
   WEIGEL, District Judge.

The defendant Jos. Schlitz Brewing Company is a Wisconsin corporation engaged in the production and sale of beer. The defendant General Brewing Company is a California corporation so engaged. John Labatt Limited, a large Canadian brewer, controls General Brewing Company through Labatt’s ownership of a majority of General’s stock.

The gravamen of the charge by the United States of America, plaintiff, is that “The effect of the purchase and acquisition of the assets of Burgermeister Brewing Corporation by defendant Schlitz and of the stock acquisition by defendant Schlitz in John Labatt, Ltd., and of each of them, may be substantially to lessen competition, or tend to create a monopoly in the production and sale of beer in the United States, the West, and the State of California in violation of Section 7 of the Clayton Act * * * ” (Complaint, Page 6, lines 23-28).

The evidence adduced at the trial and the applicable law sustain the plaintiff’s charge sufficiently to call for granting relief consonant with the plaintiff’s prayer. The office of this memorandum is to serve as Findings of Fact and Conclusions of Law underlying the decree to be entered. The intent is to meet the bench marks indicated, for federal trial courts in cases of this kind, by the Supreme Court in United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-657, 662-663, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).

Extended hearings, briefing and consideration of the trial court with all counsel were focused upon preparation of a definitive Pre-Trial Order approved by all parties. Its scope and content are indicated by the marginal notation of the subject matters listed in its table of contents. That order is referenced here because, for one thing, its delineations of the issues are inserted or grouped as headings in the Findings of Fact below.

The trial court directed the parties to include, in the post-trial briefs of each, their respective proposed Findings and Conclusions. Each set has been reviewed by the trial court. While those proposed by the United States and by General Brewing have provided the basic pattern for the trial court’s own Findings and Conclusions, the latter are the product of careful sifting. They incorporate many substantial additions, deletions and revisions as well as numerous other changes including citations to the record. It is believed that the Findings, Conclusions and comment show the reasoning which led this court to its decision on all relevant issues.

A final preliminary matter merits discussion. Some weeks after all parties had rested their cases, defendant Schlitz made a “Motion to Reopen the Record for the taking of Additional Evidence and for Other Relief”. The motion was heard upon affidavits, memoranda and argument of counsel. It was predicated upon the post-trial agreement of General Brewing to sell to Miller Brewing Company of Milwaukee, Wisconsin, one of General’s breweries, that located in Azusa, California. This brewery represents 34% of General’s total potential productive capacity. The motion was opposed by the United States and, of course, by General. It was denied by the trial court in what that court considered a sound exercise of discretion. The moving papers and those filed in opposition made it clear beyond cavil, that (1) the agreement to sell was an exercise of General Brewing’s independent business judgment, (2) consummation of the sale would leave General Brewing with more than adequate brewing capacity for all foreseeable increases in sales in all markets which it now taps, (3) General Brewing’s receipt of $8,000,000 for the sale would materially strengthen its capacity to compete with all its competitors, including, notably, Schlitz, (4) the sale would improve General Brewing’s ability to expand into other areas and (5) it would strengthen General Brewing as a vehicle for Labatt’s competition in the U. S. market. The court did order General Brewing promptly to report to the court all express or tacit commitments for any subsequent disposition of any major assets, thus assuring the court of ample opportunity to protect Schlitz in the matter, for example, of its professed concern that General Brewing was engaging in a process of liquidation, despite documented and convincing contrary assurance to the court on General Brewing’s part.

FINDINGS OF FACT

Jurisdiction

1. Defendant Jos. Schlitz Brewing Company (hereinafter referred to as “Schlitz”) is a corporation organized and existing under the laws of the State of Wisconsin, with its principal office located in Milwaukee, Wisconsin. (PreTrial Order, p. 1).

2. Defendant General Brewing Corporation (formerly known as Lucky Lager Brewing Company and hereinafter referred to as “General Brewing”) is a corporation organized and existing under the laws of the State of California, with its principal office located in San Francisco, California. (Pre-Trial Order, p. 1).

3. John Labatt Limited (hereinafter referred to as “Labatt”) is a Dominion corporation organized and existing under the laws of the Dominion of Canada, with its principal office in London, Ontario, Canada. (Pre-Trial Order, p. 2).

4. Prior to December 31, 1961, Burgermeister Brewing Corporation (hereinafter referred to as “Burgermeister”) was a corporation organized and existing under the laws of the State of California, with its principal office in San Francisco, California. (Pre-Trial Order, p. 2).

5. Defendants Schlitz and General Brewing are engaged in commerce within the meaning of Section 7 of the Clayton Act, 15 U.S.C. § 18. Prior to December 31, 1961, when its assets were purchased by Schlitz, Burgermeister was engaged in commerce within the meaning of Section 7 of the Clayton Act, 15 U.S.C. § 18. (Pre-Trial Order, p. 2).

6. Both defendants transact business and are found within the Northern District of California, Southern Division. (Pre-Trial Order, p. 2).

7. The action arises and is brought by the plaintiff under the antitrust laws of the United States, more particularly the Clayton Act, 15 U.S.C. §§ 18 and 25. (Pre-Trial Order, p. 1).

Issues Relating To Line of Commerce

1. Is the production and sale of beer a line of commerce within the meaning of Section 7 of the Clayton Act and the appropriate product market for determining the effects on competition of the acquisitions by defendant Jos. Schlitz Brewing Company of the assets of Burgermeister Brewing Corporation and of stock of John Labatt Limited?
2. Is the production and sale of all malt beverages a separate line of commerce within the meaning of Section 7 of the Clayton Act, and if so, is it an appropriate line of commerce to be considered in determining the effects on competition of the acquisitions challenged by the complaint?
3. Is the production and sale of each price level of beer, one of the malt beverages, a separate line of commerce within the meaning of Section 7 of the Clayton Act, and if so, is each level an appropriate line of commerce to be considered in determining the effects on competition of the acquisitions challenged by the complaint?
4. Is the production and sale of ale, another of the malt beverages, a separate line of commerce within the meaning of Section 7 of the Clayton Act, and if so, is it an appropriate line of commerce to be considered in determining the effects on competition of the acquisitions challenged by the complaint?

8. The term “beer”, in the context of the relevant line of commerce, includes beer, lager, ale, porter, stout and malt liquor, even though there is some conflict in expert testimony and that of members of the industry as to ale. A single brewery can produce beer, lager, ale, porter, stout and malt liquor. Moreover, regardless of the niceties of definition, sales in the United States of lager, ale, porter, stout and malt liquor are so insignificant, compared with sales of beer, as to make the inclusion or exclusion of lager, ale, porter, stout and malt liquor, or any one or more of them, of no consequence to any issue in this case. (Tr. 387, line 20—393, line 19; Tr. 150, line 6—151, line 11; Tr. 1552, lines 6-8; Tr. 468, lines 1-5).

9. Beer is produced in unique production facilities, breweries, and is marketed through specialized vendors who are referred to as wholesalers or distributors. (Tr. 192, line 25—193, line 10; Tr. 158, lines 13-25; Tr. 1552, lines 6-8).

10. There is very little difference in price or quality between the cheapest and the most expensive ingredients used in brewing beer in the United States. (Tr. 316, lines 10-16; Tr. 404, lines 6-20; Tr. 405," lines 20-23; Tr. 389, lines 3-19).

11. Beer has its own pricing structure and sells at a wide spectrum of prices; in California, for example, the range is from 79 cents through $1.44 per six-pack of 12-oz. cans. (Pre-Trial Order pp. 85-115; Tr. 1517, line 1—1519, line 19).

12. For many years it has been the practice in the brewing industry to refer to various brands of beer by terms such as “premium beer”, “regional beer” or “popularly priced beer” and “local price” or “shelf beer”. The term premium beer has generally referred to those beers which have been priced somewhat higher than the popular or regional beers. Such premium beers include Budweiser (Anheuser-Busch, Inc.), Schlitz (Jos. Schlitz Brewing Co.), and Miller High Life (Miller Brewing Co.). Popularly priced or regional beers include such brands as Lucky Lager (General Brewing Co.), Burgermeister (Jos. Schlitz Brewing Co.), Hamms (Theo. Hamm Brewing Co.), and Falstaff (Falstaff Brewing Corp.). The so-called price beers are beers which generally are not extensively advertised and sell at a price below that of the popularly priced beers. Such beer is often sold by grocery store chains as private label beer, i. e., the specified chain has the exclusive right to sell beer under the label. Other beers exist which do not fit into any of the particular categories described above. For example, Coors beer and Olympia beer sell in California at prices midway between the premium, and the popular level. Miller High Life sells in some areas, such as California, at a price above Budweiser and Schlitz. Other beers sell at a price midway between the popular and the price beer level. Some beers have moved from one category to another or have shifted from a category to an in-between level. (Pre-Trial Order, p. 9; Tr. 1517-1519).

13. There are no significant differences in the costs of labor nor equipment for production of the various brands of beer. (Tr. 434, lines 6-15).

14. All brands and types of beer compete with each other in price, image, point of sale advertising, media advertising, shelf space, floor display, refrigerator position and in attention from wholesalers and retailers. (Tr. 114— 116; Tr. 193, lines 11-17; Tr. 208, line 20 — 209, line 4; Tr. 316, line 9; Tr. 343, lines 16-22; Tr. 454, line 4; Tr. 585, line 21 — 587, line 4; Tr. 1236, line 21— 1237, line 8; Tr. 1579, lines 1-11; Tr. 1583, line 18; Tr. 1588, line 18 et seq.; Tr. 1856, line 13 — 1857, line 24).

15. There is both public and industry recognition of beer as a separate and unique product. (Tr. 193, line 15; Tr. 386, line 20; Tr. 387, line 9; Tr. 454, lines 7-22; Tr. 1598, lines 13-20; Tr. 1856, line 24 — 1857, line 5; see also citations for Finding 14).

16. Beer is a line of commerce. (Findings 8-15, inclusive).

Issues Relating To Section of the Country

5. Are the following areas, or any of them, sections of the country within the meaning of Section 7 of the Clayton Act:

(a) the United States;
(b) the eight Western States of California, . Oregon, Washington, Idaho, Montana, Nevada, Utah and Arizona;
(c) the State of California;
(d) the State of Hawaii;
(e) or some part of the United States less than the entire United States but larger than or different from the eight Western States;

and if so, is each or any such section a relevant geographic market to be considered in determining the effects on competition of the acquisitions challenged by the complaint ?

17. The United States as a whole is a geographic market for the production and sale of beer. (Tr. 956, lines 21-22; Tr. 592, line 8; Tr. 482, lines 7-11).

18. The Eight Western States area consists of the contiguous States of California, Oregon, Washington, Idaho, Montana, Nevada, Utah and Arizona. Its boundaries are the Pacific Ocean, the Canadian and Mexican borders, and, approximately, the Continental Divide.

19. Freight rates are a substantial factor in the sale of beer. (Tr. 204, line 13; Tr. 91, lines 21-23; Tr. 313, lines 17-19; Tr. 451, line 19 — 452, line 10).

20. Most breweries and the bulk of brewing capacity in the western portion of the United States are located along the Pacific Coast. (Pre-Trial Order, pp. 47-49).

21. Freight rates make it more economical for brewers to supply beer to points west of the Continental Divide from Pacific Coast breweries, rather than from Eastern or Midwestern breweries. Brewers who have breweries both on the Pacific Coast and in the Midwest generally supply the Eight Western States area from their Pacific Coast breweries and supply areas east of the Eight Western States area from their Midwestern breweries. (Tr. 1354, line 16 — 1355, line 3; Tr. 584, line 11 — 585, line 3; Plaintiff’s Exhibit 35).

22. Brewers attempt, for profit purposes, to sell a maximum quantity of their production as close as possible to the brewery at which it is produced. (Tr. 94, lines 2-11; Tr. 314, line 22).

23. Approximately 80% of all beer sold within the Eight Western States in 1963 was produced in that area. An additional 13.6% was produced in Denver, Colorado, just outside the area. (Pre-Trial Order, pp. 47-49, 65-68).

24. Over 94% of the beer produced in the Eight Western States in 1963 was sold in that area. (Pre-Trial Order, pp. 47-49, 65-68).

25. The Eight Western States area is the principal marketing territory for General Brewing; about 90% of its sales are concentrated there. (Tr. 451, lines 6-11; Tr. 475, lines 15-25).

26. National brewers have, or, in the case of Schlitz, have had in the recent past, separate sales organizations to handle the western market. The great majority of brewers recognize the existence of a western market for beer. (Tr. 584, line 10; Tr. 199, lines 13-17; Tr. 1334, lines 10-14; Tr. 200, lines 5-12; Plaintiff’s Exhibit 1, pp. 9-10).

27. The Eight Western States area is a separate geographic market for the production and sale of beer. (Findings 18-26, inclusive).

28. The State of California is an area of heavy production and consumption of beer. During the period between 1947 and 1963, consumption of beer in California has increased six times as much as the nationwide increase in consumption of beer. In 1963, California accounted for about 8% of the total amount of beer consumed in the United States. (Pre-Trial Order, pp. 13, 14, 46, 48, 64).

29. The State of California is an area of intense competition in the sale of beer. (Pre-Trial Order, pp. 14-46; Tr. 487, lines 1-8; Tr. 1360 — 1361; Tr. 960, line 20 — 961, line 3).

30. Approximately 60% of General Brewing’s sales are made in the State of California. Prior to its acquisition by Schlitz, approximately 96% of Burgermeister’s sales were made in the State of California. (Tr. 451, lines 3-5; Tr. 89, lines 20-23).

31. The State of California is recognized by the brewing industry as a separate sub-market for the production and sale of beer. (Tr. 112, line 16; Tr. 197, line 9; Tr. 313, line 18; Tr. 337, line 25; Tr. 456, line 15 — 457, line 6; Tr. 1888, lines 6-19; Tr. 338, lines 7-17).

32. The State of California is an integrated, homogeneous market for the production and sale of beer. (Tr. 110, lines 15-19).

33. The State of California is a separate geographic sub-market for the production and sale of beer. (Findings 28-31, inclusive).

34. The State of Hawaii is geographically isolated from the continental United States, and it has a unique group of beer consumers whose local pride requires special marketing techniques. (Tr. 457, lines 10-18; Tr. 1336, lines 14-17).

35. Approximately 6% of General Brewing’s sales are made in Hawaii. This represented about 41.2% of the total amount of beer sold in Hawaii in 1963. (Tr. 476, lines 15-17; Plaintiff’s Exhibit 34).

36. The State of Hawaii is a separate market for the sale of beer. (Tr. 457, lines 10-17).

37. The State of Hawaii is a separate geographic sub-market for the production and sale of beer. (Findings 34-36, inclusive).

Issues Generated By The Schlitz Acquisition of An Interest in Labatt

6. Will the reasonably probable effect of the acquisition by defendant Jos. Schlitz Brewing Company of stock of John Labatt Limited be substantially to lessen competition or to tend to create a monopoly in an appropriate line of commerce in one or more of the relevant sections of the country?
7. Will the reasonably probable effect of the indirect acquisition of an interest in General Brewing Corporation by defendant Schlitz be substantially to lessen competition or to tend to create a monopoly in an appropriate line of commerce in one or more relevant sections of the country ?
8. Is John Labatt Limited a corporation engaged in commerce within the meaning of Section 7 of the Clayton Act?
9. Was the purchase of stock of John Labatt Limited by defendant Jos. Schlitz Brewing Company solely for the purpose of making an investment in Canada?
10. Ia the acquisition of a stock interest in John Labatt Limited by defendant Schlitz an investment exempt from the prohibition of Section 7 of the Clayton Act?

38. Defendant Schlitz is the Nation’s second largest brewer, with 1964 sales of $311,394,654 and with seven breweries located throughout the country. From 1954 to 1964, its share of the California market rose (with some intermediate ebb and flow) from 2.40% to 12.1%. (PreTrial Order, pp. 116, 36-46; Plaintiff’s Exhibit 11).

39. In February 1964, Schlitz acquired 39.3 % of the stock of John Labatt Limited, a sufficient amount for voting control of the latter. (Schlitz Answer to Complaint, p. 5, lines 17-20; Tr. 797, lines 5-11; Plaintiff’s Exhibit 11, p. 5).

40. John Labatt Limited is the third largest Canadian brewer, with 1964 sales of $108,585,537 and with seven breweries located throughout Canada. (PreTrial Order, p. 117; Tr. 633, lines 16-22; Plaintiff’s Exhibit 17).

41. John Labatt Limited controls 63.5% of the common stock of General Brewing Corporation. (Pre-Trial Order, p. 117; Defendant Schlitz Exhibit 198).

42. General Brewing was the 14th largest U. S. brewer in 1963, and has two plants in California, one in Washington, and one in Utah. General Brewing in 1963 ranked second in the California beer market, with 13.7% of sales, second in the Eight Western States market with 13.3% of sales, and first in the Hawaii market with 41% of sales. (Pre-Trial Order, pp. 56, 48, 49, 45, 65-67, 50).

43. A strong trend toward concentration exists in the brewing industry. Since 1952 the number of plants has decreased from 334 to 190 in 1964, and the number of companies has decreased from 307 to 144 in 1964, while tax paid withdrawals have increased from 84,293,-646 barrels to 96,247,413 barrels in 1964. (Pre-Trial Order, p. 71; Plaintiff’s Exhibit 25).

44. The share of beer sales accounted for by the 10 largest and 25 largest brewers has increased from approximately 40% and 60%, in 1953, to approximately 57% and 82%, in 1963, respectively. (Pre-Trial Order, pp. 57-58; Plaintiff’s Exhibits 26, 27).

45. The rank and market share of each of the 25 largest sellers of beer in the United States in each of the years 1939-1963 is shown in Appendix A hereof. (Pre-Trial Order, pp. 51-58).

46. A trend toward concentration also exists in the Eight Western States area and in California. (Pre-Trial Order, pp. 62, 75; Plaintiff’s Exhibits 28, 30).

47. The trend toward concentration fin the beer industry will continue un“abated. (Tr. 328, line 22—329, line 10; Tr. 590, lines 7-10; Tr. 408, line 3—409, line 1).

48. Acquisitions and mergers have played an important part in the trend toward concentration in the brewing industry. A substantial number of these acquisitions and mergers involved the largest brewers and a majority were of regional firms in the larger size cate- , gories, which stand the best chance for independent survival. Schlitz has made imany of these acquisitions. (Pre-Trial !| Order, pp. 118-127; Defendant Schlitz | Exhibit 192; Tr. 2099, line 23—2100, iline 4).

49. It is extremely difficult for a new firm to enter the United States brewing industry due to the great expense of buying or building a plant and acquiring sufficient business to support it. The present cost of building a million barrel brewing facility is between $30,000,000 and $35,000,000. So far as the record discloses, just one brewery, Carlings of Canada, has successfully entered the industry in the United States since 1947. (Tr. 409, line 7—411, line 21; Tr. 190, line 15—192, line 3).

50. Control of General Brewing by Schlitz will give Schlitz over 10% of the national beer market, raising it from second to first ranked, and will give the two largest brewers over 20% of the' national beer market. (Pre-Trial Order, pp. 51-58).

51. The market share of each major seller of beer in the Eight Western States in 1963 and the total sales of beer in the Eight Western States in 1963 are shown in Appendix B hereof. (Pre-Trial Order, pp. 65-68; Plaintiff’s Exhibit 53),

52. The tax paid withdrawals of each brewery operated in the Western States, for each of the years 1960 through 1963, inclusive, are set forth by State at pages 48 and 49 of the Pre-Trial Order, in evidence. (Pre-Trial Order, pp. 48-49).

53. Control of General Brewing by Schlitz will enhance the trend of acquisitions and mergers in the brewing industry and will substantially increase concentration in the brewing industry nationally, in the Eight Western States, in California, and in Hawaii. (Pre-Trial Order, pp. 51-59,48-49, 65-67,14-46, 50; Plaintiff’s Exhibit 26-30, 32-34; Tr. 605, lines 12-13).

54. The market share of each major seller of beer in California and total beer sales, for each of the years 1933 through 1964, inclusive, is shown in Appendix C hereof. (Pre-Trial Order, pp. 11-46).

55. Control of General Brewing by Schlitz will give Schlitz six breweries, 22.9% of production, 23 % of sales in the Eight Western States, making Schlitz the largest seller of beer in the area. (PreTrial Order, pp. 48-49, 65-67; Plaintiff’s Exhibit 29).

56. Control of General Brewing by Schlitz will give Schlitz 38.9% of production and 26.8% of sales in California, making it the largest seller of beer in that state, and nearly twice as large as the second ranked firm. (Pre-Trial Order, pp. 48-49, 45; Plaintiff’s Exhibits 32, 33).

57. The market share of each seller of beer in Hawaii and total sales of beer in Hawaii for each of the years 1961, 1962 and 1963 are shown in Appendix D hereof. (Pre-Trial Order, p. 50).

58. Control of General Brewing by Schlitz will give Schlitz 50.9% of beer sales in Hawaii. (Pre-Trial Order, p. 50; Plaintiff’s Exhibit 34).

59. Distributors (also referred to as wholesalers) are extremely important to successful competition of brewers in the brewing industry. Control of General Brewing by Schlitz will place General’s distributor “system” in Schlitz’ hands and will result in a significant competitive advantage to Schlitz and a substantial competitive disadvantage to its competitors. (Tr. 335, lines 7-15; Tr. 347, line 7 — 350, line 3; Tr. 352, line 15 — 359, line 8; Tr. 212, lines 13-24; Tr. 213, line 24 — 214, line 1.; Plaintiff’s Exhibit 45; Tr. 217, line 19 — 218, line 1; Tr. 490, lines 1-3; Tr. 158, lines 13-25).

60. Control of General Brewing by Schlitz will result in a substantial lessening of competition in the sale of beer in the United States, the Eight Western States, the State of California, and the State of Hawaii. (Tr. 489, lines 17-24; Tr. 352, lines 15-19; Findings 38-67).

61. At the time Schlitz purchased its stock in John Labatt Limited, Labatt and General Brewing had formulated and partially put into effect plans to expand General Brewing eastward to become a national brewer. (Tr. 463, lines. 2-25; Tr. 464, lines 6-19; Tr. 715, line 25— 716, line 3; Tr. 780, line 3 — 782, line 13).

62. The plans of Labatt and General Brewing are based on General’s need to overcome its natural disadvantages as a regional brewer, and Labatt’s need and desire to market in the United States to meet the advertising spill-over advantage currently possessed by its largest competitor, Canadian Breweries Ltd. (PreTrial Order, p, 69; Tr. 462, line 12 — 463, line 1; Tr. 632, line 19 — 635, line 15).

63. In connection with the plans to expand General Brewing, and also in its role as the parent corporation, Labatt has given extensive practical and technical assistance to General Brewing of great value to the latter. (Tr. 635, lines 14-16; Tr. 703, line 2 — 708, line 21; Tr. 470, lines 17-19).

64. Labatt has also helped General Brewing to introduce a premium priced beer under the Labatt brand which General Brewing executives felt was needed. (Tr. 709, line 17 — 710, line 23; Tr. 1185, lines 7-24; Tr. 1613, line 23 — 1614, line 13).

65. At the time of its acquisition of Labatt stock, Schlitz attempted to eliminate potential competition of Labatt by attempting to halt the introduction of Labatt beer into the United States by General Brewing. (Tr. 711, line 18— 712, line 15; Plaintiff’s Exhibit 7).

66. Labatt and General Brewing’s plans represent substantial potential competition in the United States, the Eight Western States ánd California which will be eliminated if Schlitz is allowed to control Labatt. (Findings 60-65, supra).

67. Schlitz’ acquisition of stock of Labatt will result in a substantial lessening of actual and potential competition, and will tend to create a monopoly, in the production and sale of beer in the United States as a whole, the Eight Western States, the State of California, and the State of Hawaii. (Findings 38-66, supra),

68. John Labatt Limited each -year sells approximately $2,000,000 worth of beer in 20 States of the United States, located for the most part in the Midwest and eastern portions of the United States. This beer is produced in Labatt’s Canadian breweries. (Tr. 783, line 2; Tr. 784, lines 2-5; Plaintiff’s Exhibit 12).

69. To facilitate these sales, Labatt has organized a distribution system in the United States composed of two master distributors and a number of local distributors. (Tr. 784, lines 8-13).

70. In order to stimulate sales of its beer in the United States, Labatt provides advertising allowances, finances shared advertising programs, and makes partial payment of salesmen’s salaries. (Tr. 788, line 16 — 790, line 4).

71. Labatt sales in the United States are supervised by Labatt’s export manager, who spends one-third to one-half of his time in the United States working with the master distributors and local distributors. (Tr. 786, line 24 — 788, line 9).

72. Approximately 20% to 25% of the Labatt beer sold in the United States is shipped to the United States on Labatt-owned trucks. (Tr. 786, lines 4-6).

73. Orders for Labatt beer are placed by telephone by United States distributors to the brewery, sometimes as frequently as daily. (Tr. 785, lines 9-12).

74. Labatt deals directly with government agencies in the' United States in obtaining approval for marketing its beer in the United States. (Tr. 790, line 5— 791, line 4).

| 75. The continuous flow of Labatt beer from Canada to Labatt’s distributors in the United States constitutes an ¡I engagement in foreign and interstate ijcommerce by John Labatt Limited. (Tr. 3783 — 790).

76. John Labatt Limited engages in commerce in the United States through its control of, and close business relationship with and assistance to, General Brewing Corporation. (Tr. 703, line 2— 708, line 21; Pre-Trial Order, p. 117, lines 4-9).

77. From the outset of the negotiations Schlitz sought working control of John Labatt Limited. But for the issuance of the temporary restraining order, Schlitz obtained and would now have such control. (Tr. 1103, line 4; Tr. 1315, line 2; Tr. 717, lines 15-18; Tr. 824, lines 3-16).

78. Schlitz purchased 1,700,000 shares, or 39.3% of the Labatt stock at $23 (Canadian) a share at a price which was described to Labatt shareholders as “an historically high level” and one appearing “to discount future growth of the Company [Labatt] for some years.” (Plaintiff’s Exhibit 22).

79. Schlitz was correctly advised by the Labatt management that its acquisition of Labatt stock would meet with an adverse reaction from the Canadian public. (Tr. 719, lines 14-22; Tr. 765, line 6 — 766, line 13).

80. During the course of negotiations for Schlitz’ acquisition of a controlling interest in Labatt, both parties recognized the possible anti-competitive consequences of consummation. (Tr. 718, line 9—722, line 6).

81. The possibility of Labatt management marketing Schlitz brand beer wás discussed but never resolved between Labatt and Schlitz. (Tr. 817, line 21—819, line 7).

82. During the course of negotiations Schlitz sought to dissuade Labatt from introducing the Labatt brand of beer through General Brewing. (Tr. 711, line 18—713, line 17; Plaintiff’s Exhibit 7).

Issues Generated By The Schlitz Acquisition of Burgermeister

11. May plaintiff challenge in these proceedings the acquisition of the assets of Burgermeister Brewing Corporation by defendant Schlitz?
12. Was Burgermeister Brewing Corporation a failing firm?
13. Will the reasonably probable effect of the acquisition by defendant Schlitz of all of the assets, except cash, of Burgermeister Brewing Corporation be substantially to lessen competition or to tend to create a monopoly in an appropriate line of commerce in one or more of the relevant sections of the country ?

83. Shortly before the acquisition of Burgermeister by Schlitz, the Department of Justice requested Schlitz to submit detailed information concerning the transaction; in response, Schlitz submitted certain information concerning its acquisition of Burgermeister and relating to the business of each of the companies; after consideration of the information submitted by Schlitz, counsel for Schlitz was advised that the Department of Justice was not prepared to take any action at that time to block the Schlitz acquisition of Burgermeister; the Department of Justice took no action at that time to block the Schlitz acquisition of Burgermeister. (Defendant Schlitz Exhibits 52, 207; 53A-P, 207).

84. Defendant Schlitz did not submit a written request for written clearance of its acquisition of Burgermeister; (The record is barren of any proof that the Department of Justice gave clearance to the acquisition of Burgermeister by defendant Schlitz). (Defendant Schlitz Exhibit 207).

85. Defendant Schlitz requested and obtained clearance letters from the Department of Justice for its acquisition of the Hawaii Brewing Company and a Puerto Rican brewery. (Tr. 1312, line 10—1313, line 3).

86. Oral clearances for mergers or acquisitions are not given by the Antitrust Division. (Tr. 1781, line 2—1782, line 17).

87. The sales by dollar and volume and after-tax earnings by Burgermeister in the five years preceding its acquisition were as follows:

Volume (barrels) After-Tax Earnings Year Sales

973.501 $1,013,829 1957 $37,319,900

971.502 988,823 1958 37,221,851

974,347 944,687 1959 38,197,664

892,711 720,951 1960 35,554,000

726,533 408,602 1961 29,154,891

(Pre-Trial Order, pp. 43,116; Plaintiff’s Exhibits 3, 4; Defendant Schlitz Exhibits 53K, 53L).

88. In 1960, Burgermeister was the third largest selling California brewery accounting for 10.7% of all beer sold in the State of California. (Pre-Trial Order, p. 42).

89. Burgermeister’s one brewery, located in San Francisco, California, was completely rebuilt during the period from 1944 to 1948. (Tr. 89, lines 3-13).

90. In 1960 Burgermeister had one of the most modern plants, equipped with the finest draft beer equipment, in the United States. (Tr. 89, lines 14-16; Tr. 105, lines 21-24).

91. At the time of its acquisition by Schlitz, Burgermeister had an exceptionally strong distributor organization. (See Finding 59 as to the great value of this.) (Tr. 95, lines 19-23; Tr. 158, lines 5-10; Tr. 188, lines 8-9).

92. 1960 was the twenty-first consecutive year in which Burgermeister Brewing Corporation paid dividends to its shareholders. (Plaintiff’s Exhibit 4, P. 2).

93. At the time its assets were purchased by Schlitz, Burgermeister Brewing Corporation had no long-term outstanding debts. (Plaintiff’s Exhibit 4, P. 5).

94. At the time its assets were purchased by Schlitz, Burgermeister Brewing Corporation was a solvent corporation in a healthy financial position. (Plaintiff’s Exhibits 3, 4; Tr. 105, lines 10-24; Tr. 1543, line 16—1544, line 22).

95. At the time its assets were purchased by Schlitz, Burgermeister Brewing Corporation was not in a deteriorating- or declining condition nor could it be termed a failing plant. (Plaintiff’s Exhibits 3, 4; Tr. 187, line 25—188, line 9; Tr. 2065, lines 3-6).

96. In 1960 Miller Brewing Company offered to purchase Burgermeister for $11,000,000. This offer was raised to $12,000,000 in March of 1961. (Tr. 160, lines 7-8; Tr. 169, lines 5-8; Tr. 187, lines 4-11).

97. On December 29, 1961, defendant Schlitz purchased the assets of Burgermeister, except for cash in the amount of $1,700,000, for $12,039,250. (Plaintiff’s Exhibit 1, p. 3).

98. Had Burgermeister in 1961 spent its usual amount for advertising, including point-of-purchase advertising and service costs, the net earnings for 1961 would have been over one million dollars. (Tr. 104, lines 12-19; Tr. 139, lines 1-25).

99. From 1948 to 1961 several national brewers who had no brewing facilities in California, acquired California breweries. (Pre-Trial Order, pp. 12, 13, 40-43, 120, 121).

100. The volume and market share of firms brewing or selling beer in California for the years 1955 through 1964, inclusive, are shown at pages 37-46 of Appendix C hereof. (Pre-Trial Order, pp. 37-46).

101. For the years 1955 through 1960, Burgermeister’s sales in California, its rank and , its percentage of the California market were as follows:

Year Calif. Sales (barrels) Rank Percent of Market

1955 977,561 2 16.12

1956 943,762 2 14.97

1957 887,798 3 13.53

1958 886,359 3 12.78

1959 887,106 4 11.93

1960 805,289 3 10.7

(Pre-Trial Order, pp. 37-42).

102. For the years 1955 through 1960, Schlitz sales in California, its rank and its percentage of the California market were as follows:

Year Calif. Sales (barrels) Percent of Rank Market

1955 243,190 9 4.01

1956 264,860 9 4.20

1957 283,692 9 4.32

1958 273,331 10 3.94

1959 292,559 10 3.94

1960 293,238 11 3.9

(Pre-Trial Order, p i. 37-42).

103, The dollar value of beer sales by Burgermeister Brewing Corporation for each of the years 1957 through 1960 in each of the States in which it sold are shown on Appendix E hereof. (Plaintiff’s Exhibit 5).

104. 1961 sales for Burgermeister are not reliable indicia of the effect of the Schlitz acquisition of the Burgermeister assets because such sales were seriously distorted by the demoralizing effect of awareness, in the industry, its distributors and corporate personnel, of negotiations for the sale of Burgermeister which commenced in 1960. (Tr. 104, line 4 — 105, line 4; Tr. 1544, lines 3-11).

105. In 1961 Schlitz was the tenth ranking brewer in California and had 3.6% of the California market. In 1962 Schlitz was the third ranking brewer in California and had 12.3% of the California market. (Pre-Trial Order, pp. 43, 44).

106. At the time of its acquisition by Schlitz, Burgermeister was a substantial independent competitor in California. (Tr. 497, lines 14-16; Tr. 1620, lines 5-8; Pre-Trial Order, pp. 42, 43).

107. After Schlitz acquired Burgermeister, Schlitz attempted to have its wholesalers carry a full line of Schlitz products. (Tr. 1270, lines 7-13).

108. When Schlitz acquired Burgermeister, it was able to choose between the Schlitz and the Burgermeister wholesaler. Schlitz thus was able to strengthen its wholesaler organization by choosing the more effective of the two wholesalers. (Plaintiff’s Exhibit 2).

109. In the first six months following the acquisition of Burgermeister by Schlitz, Schlitz terminated on its own initiative its relationship with thirty-nine beer distributors in various market areas of the West. Fourteen of these were former Burgermeister distributors, and twenty-five of these were former Schlitz distributors. Eight of the fourteen former Burgermeister distributors were in California, and twenty-three of the twenty-five former Schlitz distributors were in California. (Answer of Defendant Jos. Schlitz Brewing Company to Plaintiff’s First Set of Interrogatories to Said Defendant, pp. 55-76).

110. Schlitz’ ability to choose between the Schlitz and Burgermeister wholesaler when it acquired Burgermeister caused substantial detriment to other brewers whose beers were formerly being sold by either the Schlitz or Burgermeister wholesaler. (Tr. 1609, lines 5- 19; Tr. 1611, lines 20-25; Tr. 493, line 17 — 493A, line 2; Tr. 188, line 25— 190, line 14; Tr. 220, line 8 — 222, line 20; Tr. 290, line 14 — 292, line 6).

111. General Brewing Company and Miller Brewing Company are two examples of breweries who were detrimentally affected by the Schlitz acquisition of Burgermeister in that their distributor organizations were disrupted. (Tr. 1203, lines 2-7; Tr. 1226, lines 3-14; Tr. 190, lines 2-14; Tr. 205, lines 6- 12; Tr. 212, line 3 — 214, line 16; Tr. 226, lines 11-19).

112. At the time of the Schlitz acquisition of Burgermeister, Miller Brewing Company had twenty-two joint distributors with Burgermeister. After the acquisition, six of these dropped Miller and took on Schlitz, six dropped Burgermeister and stayed with Miller, two went out of business after having Burgermeister withdrawn from them, four took on Schlitz and retained Miller, and four did not take on Schlitz. (Tr. 188, line 25 — 189, line 10; Tr. 220, line 8 — 222, line 20).

113. At the time of its acquisition of Burgermeister, Schlitz was distributing its popular priced beer, Old Milwaukee, in the middle west, southern, and southeastern States. (Tr. 1252, lines 5-17).

114. Old Milwaukee’s marketing area has been expanded so that it is now being sold in substantially every other State where Burgermeister is not presently marketed. (Tr. 1304, line 24 — 1305, line 9).

115. Since its acquisition of Burgermeister, Schlitz has succeeded in expanding Burgermeister’s selling area eastward until it has met that of Old Milwaukee. (Tr. 1346, line 21 — 1347, line 6).

116. In 1961 Schlitz was aware that in order to improve its position on the West Coast, it could either introduce its own popular priced brand or acquire a going brand. (Plaintiff’s Exhibit 2, pp. 2, 3).

117. It would have been very costly for Schlitz to introduce its own brand on the West Coast in 1961. (Plaintiff’s Exhibit 2, p. 2).

118. But for its .acquisition of the Burgermeister assets, Schlitz would have introduced its own popular priced beer on the West Coast. (Plaintiff’s Exhibit 2).

119. The changes in its distributor organization that Schlitz effectuated after it acquired the assets of Burgermeister resulted in a substantial lessening of competition and a tendency to create a monopoly in the production and sale of beer in the Eight Western States area and in California. (Findings 107-112, supra).

120. The failure of Schlitz to introduce its own popular priced brand beer into the West Coast because of its acquisition of the assets of Burgermeister resulted in a substantial lessening of actual and potential competition and a tendency to create a monopoly in the production and sale of beer in the Eight Western States area and in California. (Findings 113-118, supra).

121. The elimination of Burgermeister as a substantial independent competitor by Schlitz’ purchase of the assets of Burgermeister resulted in a substantial lessening of competition and a tendency to create a monopoly in the production and sale of beer in the Eight Western States area and in California. (Findings 95,106, supra).

122. The purchase of the assets of Burgermeister by Schlitz further enhanced the trend toward concentration in the brewing industry, resulting-in a substantial lessening of competition and a tendency to create a monopoly in the production and sale of beer in the Eight Western States area and in California. (Findings 43-49, 99, supra).

123. The acquisition of the assets of Burgermeister by Schlitz resulted in a substantial lessening of actual and potential competition and a tendency to create a monopoly in the production and sale of beer in the Eight Western States area and in California. (Findings 99-118, supra).

124. The evidence was not sufficient to establish that the Schlitz acquisition of Burgermeister resulted in a substantial lessening of competition, actual or potential, nor in a tendency to create a monopoly in the production and sale of beer in the United States or in Hawaii.

125. The acquisition by Schlitz of the assets of Burgermeister, in connection with Schlitz’ subsequent acquisition of Labatt stock and thereby control of General Brewing, is further evidence of the continuing trend toward concentration in the brewing industry in general and of the attempts by Schlitz, in particular, to increase its sales and market share by the acquisition of competitors. (Findings 38, 43, 44, 45, 46, 47, 48, 50, 53, 59, 65, 80, 82, 85, 97, 104, 105, 106, 107, 109, 111, 112, 118, 119-24).

CONCLUSIONS OF LAW

1. The Court has jurisdiction over the subject matter of the complaint herein and the parties hereto.

2. The production and sale of beer is a line of commerce within the meaning of Section 7 of the Clayton Act, the relevant provisions of which are set forth in Appendix F hereof. Beer is the appropriate product market for determining the effects on competition of the acquisitions by defendant Jos. Sehlitz Brewing Company of the assets of Burgermeister Brewing Corporation and of stock of John Labatt Limited.

United States v. Continental Can Co., 378 U.S. 441, 456-457, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964).
Brown Shoe Co. v. United States, 370 U.S. 294, 325-326, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).
United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957).
A. G. Spalding & Bros., Inc. v. Federal Trade Commission, 301 F.2d 585, 604 (3rd Cir. 1962).
Crown Zellerbach Corporation v. Federal Trade Commission, 296 F.2d 800, 811 (9th Cir. 1961), cert. den., 370 U.S. 937, 82 S.Ct. 1581, 8 L.Ed.2d 807 (1962).
American Crystal Sugar Co. v. Cuban-American Sugar Co., 259 F.2d 524, 529-530 (2d Cir. 1958).
Hamilton Watch Co. v. Benrus Watch Co., 114 F.Supp. 307, 311 (D.Conn. 1953), affirmed, 206 F.2d 738 (2d Cir.).

3. There are no distinguishable price levels of beer which constitute relevant product sub-markets within the line of commerce found by the Court and designated as the production and sale of beer.

United States v. Continental Can Co., 378 U.S. 441, 456-457, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964).
Brown Shoe Co. v. United States, 370 U.S. 294, 325-326, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).
Hamilton Watch Co. v. Benrus Watch Co., 114 F.Supp. 307, 311 (D.Conn. 1953), affirmed, 206 F.2d 738 (2d Cir.).

4. The following areas are each sections of the country for the production and sale of beer, within the meaning of Section 7 of the Clayton Act, and each is a relevant geographic market to be considered in determining the effects on competition of the acquisitions challenged by the complaint:

the United States; the Eight Western States of California, Oregon, Washington, Idaho, Montana, Nevada, Utah and Arizona; the State of California; the State of Hawaii.
United States v. El Paso Natural Gas Co., 376 U.S. 651, 657, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).
United States v. The Philadelphia National Bank, 374 U.S. 321, 357, 360-361, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).
Brown Shoe Co. v. United States, 370 U.S. 294, 336-337, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).
Crown Zellerbach Corporation v. Federal Trade Commission, 296 F.2d 800, 817 (9th Cir. 1961), cert. den., 370 U.S. 937, 82 S.Ct. 1581, 8 L.Ed.2d 807 (1962).
American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387, 398 (S.D.N.Y.1957), affirmed, 259 F.2d 524 (2d Cir. 1958).
United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 599-603 (S.D.N.Y.1960).

5. The reasonably probable effect of the acquisition by defendant Jos. Schlitz Brewing Company of stock of John Labatt Limited (and thereby control of General Brewing Company) will be substantially to lessen competition and to tend to create a monopoly in the production and sale of beer in the United States as a whole, the Eight Western States, the State of California, and the State of Hawaii.

United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964).
United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964).
United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964).
United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).
United States v. The Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).
Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).
American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387 (S.D.N.Y. 1957), affirmed, 259 F.2d 524 (2d Cir. 1958).
United States v. Bethlehem Steel Corp., 168 F.Supp. 576 (S.D.N.Y.1960).

6. John Labatt Limited is a corporation engaged in commerce within the meaning of Section 7 of the Clayton Act.

Clayton Act, Section 1, 38 Stat. 730 (15 U.S.C. § 12).

7. The acquisition of a stock interest in John Labatt Limited by defendant Schlitz is not an investment exempt from the prohibition of Section 7 of the Clayton Act.

Hamilton Watch Co. v. Benrus Watch Co., 114 F.Supp. 307, 316 (D.Conn.1953), affirmed, 206 F.2d 738 (2d Cir.).

8. The Department of Justice may challenge the acquisition of Burgermeister Brewing Corporation by defendant Schlitz in this proceeding and is not estopped or restrained from doing so by its failure to bring suit at the time of the acquisition.

United States v. New Orleans Chapter, Associated General Contractors of America, Inc., 382 U.S. 17, 86 S.Ct. 33, 15 L.Ed.2d 5 (1965), reversing 238 F.Supp. 273 (E.D.La.1964).
United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 226, 60 S.Ct. 811, 84 L.Ed. 1129 (1940).
United States v. Grinnell Corporation, 30 F.R.D. 358, 363 (D.R.I.1962).

9. At the time of its acquisition by defendant Schlitz, Burgermeister Brewing Corporation was not a failing firm.

International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 301-302, 50 S.Ct. 89, 74 L.Ed. 431 (1929).
Erie Sand and Gravel Company v. Federal Trade Commission, 291 F.2d 279, 280-281 (3rd Cir. 1961).

10. The acquisition of all of the assets, except cash, of the Burgermeister Brewing Corporation by defendant Schlitz had, and continues to have, the reasonably probable effect of substantially lessening competition and tending to create a monopoly in the production and sale of beer in the Eight Western States area and in the State of California. Such lessening of competition was and is actual competition in the State of California and primarily potential competition in the Eight Western States area.

United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964).
United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964).
United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964).
United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).
United States v. The Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).
Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).
American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387 (S.D.N.Y.1957), affirmed, 259 F.2d 524 (2d Cir. 1958).
United States v. Bethlehem Steel Corp., 168 F.Supp. 576 (S.D.N.Y.1960).

11. The acquisition of the assets, except cash, of the Burgermeister Brewing Corporation by defendant Jos. Schlitz Brewing Company, as charged in the complaint herein, violated Section 7 of the Clayton Act.

12. The acquisition of stock of John Labatt Limited by defendant Jos. Schlitz Brewing Company, as charged in the complaint herein, violated Section 7 of the Clayton Act.

13. The relief necessary to accomplish the alleviation of the unlawful effects of the violations found herein will be the divestiture by defendant Schlitz of the assets of Burgermeister Brewing Corporation and of the stock of John Labatt Limited.

14. Such relief will require appropriate exercise of the injunctive power of this court upon defendant Jos. Schlitz Brewing Company and defendant General Brewing Company.

COMMENTS ON THE FINDINGS OF FACT PROPOSED BY DEFENDANT JOS. SCHLITZ BREWING CO.

The proposed Findings of Fact submitted by the defendant Schlitz were closely examined and carefully considered by the trial court. In the main, Schlitz’ Findings have been rejected, because in their most important aspects, they are not supported by the evidence. No attempt is here made to detail the reasons for this conclusion as to each and every Finding of Fact proposed by Schlitz. Instead, the following comments serve to point out the major areas of disagreement between the court’s view of the evidence and of the applicable law as contrasted to those urged by defendant Schlitz.

The Relevant Line of Commerce

Schlitz maintains that premium and non-premium beer constitute separate lines of commerce within the meaning of Section 7 of the Clayton Act. This conclusion is grounded largely on the assumptions that there is a clear price differential between premium and non-premium beer and that sales of premium beer have held a constant 20% of the national beer market.

Insofar as Schlitz’ conclusion is based on a price differential between premium and non-premium beer, it is not supported by the evidence nor by the applicable case law. The trial court has found that in California, beer prices range over a wide spectrum from $.79 to $1.44 a six-pack. There is no rational way of choosing a point along this price spectrum and saying that all beer which sells above that point constitutes a line of commerce, or even a sub-market, apart from all beer which sells below that point. This is precisely what the Supreme Court refused to do in Brown Shoe Co. v. United States, 370 U.S. 294, 325-326, 82 S.Ct. 1502 (1962), when it rejected the'defendant’s position that medium-price and low-price shoes constituted separate lines of commerce for purposes of Section 7. In fact, an examination of the criteria listed by the Supreme Court in Brown Shoe and the evidence adduced here on the issue of the relevant line of commerce shows that each and every factor mentioned in the Supreme Court’s opinion points toward a finding that all beer is the only relevant line of commerce in the present case.

This conclusion is not vitiated by a showing that some percentage of beer consumers will purchase only premium, or only non-premium beer. Even Schlitz admits that there is “an area in which consumers cross over from premium to non-premium beers”. (Schlitz Proposed Finding of Fact No. 132.) This conclusion was expressed almost unanimously by the witnesses from the brewing industry. In United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738 (1964), the Supreme Court held that the government could establish that metal and glass containers constituted a single line of commerce without proving that the area of competitive overlap between them was complete. The Court said:

“There may be some end uses for which glass and metal do not and could not compete, but complete interindustry competitive overlap need not be shown. We would not be true to the purpose of the Clayton Act’s line of commerce concept as a framework within which to measure the effect of mergers on competition were we to hold that the existence of noncompetitive segments within a proposed market area precludes its being treated as a line of commerce.” 378 U.S. at 457, 84 S.Ct. at 1747.

Clearly, there is at least as great a “competitive overlap” between premium and non-premium beers as between metal and glass containers. Furthermore, the testimony establishes conclusively that this competition for the beer consumers’ dollar is reflected in competition among all beers for shelf space, servicing at retail outlets • and point-of-sale advertising space.

The Relevant Section of the Country

Schlitz insists that the entire United States is the only relevant section of the country in this case. It contends that to quench their thirst, consumers can and do turn to brewers located anywhere in the nation. However, Schlitz seems to overlook the fact that only three brewers —Schlitz, Miller and Anheuser-Busch— actually compete on a national basis. The competitive “mix” of suppliers in the beer industry in any area or section of the country is composed of the three national brewers and a group of local and regional brewers. The evidence in this case shows that freight rates and population density and growth are among the most important factors relied upon by local and regional brewers in determining their geographic markets. Freight rates for shipping beer across the Continental Divide strongly support the conclusion that the Eight Western States area is a relevant section of the country; the population density and growth of California strongly supports the conclusion that it is a relevant section of the country. Furthermore, both of the acquired American breweries made at least 90% of their sales in California or in the Eight Western States area.

In much quoted language in its Brown Shoe decision, the Supreme Court said that “[t]he geographic market selected must * * * both ‘correspond to the commercial realities’ of the industry and be economically significant.” 370 U.S. at 336-337, 82 S.Ct. at 1530. An examination of the brewing industry in general and of the competitors involved here in particular, shows that the trial court’s Findings on the relevant sections of the country are completely consistent with the Brown Shoe test.

To support its position that the entire United States is the only relevant section of the country, Schlitz points out that the Miller Brewing Co. has only one brewery —in Milwaukee, Wisconsin — and that Miller competes successfully west of the Continental Divide. However, it was established at the trial that Miller sold its beer in California at a price considerably above that of the other “national premiums”, Schlitz and Budweiser. It seems clear that Miller would be an even stronger competitor in the West if it could move its beer into western outlets at a lower cost for freight. Apparently, Miller feels this way also, since it has now made a firm offer to purchase General Brewing’s Azusa brewery in Southern California.

The Probable Effect on Competition of Schlitz’ Acquisition of Labatt and General Brewing

The record supports Schlitz’ contention that Labatt is not now a substantial competitor in the United States. However, Schlitz goes further and states that “there is no evidence that Labatt plans to expand its efforts in the United States”. (Schlitz Proposed Finding No. 61.) This statement is patently erroneous. Both Mr. John H. Moore, President of John Labatt, Ltd., and Mr. John B. Cronyn, Executive Vice President of John Labatt, Ltd., testified that Labatt did desire and intend to expand its operations into the United States markets and that it intended to use General Brewing as a vehicle for accomplishing this purpose. (Tr. 780, line 13 — 782, line 13; Tr. 632, line 19 — 633, line 11; Tr. 635, lines 5-13). The evidence clearly demonstrates that Labatt had the desire, the intention and the resourcefulness to enter the United States markets and to make General Brewing a stronger competitor in those markets.

Schlitz makes much of Labatt’s early setbacks in entering the United States markets through its licensing agreement with General Brewing. In United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), the Supreme Court held that the acquisition of Pacific Northwest Pipeline Corp. by El Paso violated Section 7 of the Clayton Act because Pacific Northwest was a strong potential competitor in the California market. The Court pointed out that Pacific Northwest had the desire and the ability to enter this market. El Paso argued that Pacific Northwest had already tried to sell gas in California but had failed. The Court rejected this argument, saying:

“That might be weighty if a market presently saturated showed signs of petering out. But it is irrelevant in a market like California, where incremental needs are booming.” 376 U.S. at 660, 84 S.Ct. at 1049.

It is appropriate to point out that the evidence in the present case shows that California’s demand for beer is booming almost as quickly as its demand for gas. Like Pacific Northwest, Labatt is anxious and able to help meet the demand.

Schlitz’ position in regard to General Brewing is that Schlitz never wanted control of General Brewing and that Schlitz would use its power as controlling stockholder of Labatt to arrange for a sale of General Brewing. This argument, even if supported by the evidence, is irrelevant to the issue of whether Schlitz’ acquisition of Labatt and General Brewing violated Section 7 of the Clayton Act. “[T]he test of a violation of § 7 is whether, at the time of suit, there is a reasonable probability that the acquisition is likely to result in the condemned restraints.” United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 607, 77 S.Ct. 872, 884, 1 L.Ed.2d 1057 (1957) (emphasis added). At the time of suit, Schlitz did in fact control General Brewing.

Furthermore, even if Schlitz’ contention about its intentions vis-a-vis General Brewing is deemed relevant to the issue of the terms of the trial court’s decree, the facts of the present case show that the ends of the Clayton Act will not be served by allowing Schlitz to keep Labatt and divest itself of General Brewing. Preliminarily, it should be pointed out that the trial court is not convinced that from the outset of its negotiations with Labatt, Schlitz had no desire to control General Brewing. If this were true, Schlitz could have gone a great deal further in making sale of General Brewing a prerequisite for its purchase of Labatt stock. But, even accepting Schlitz’ contention at face value, it is clear that. Labatt ownership and support of General Brewing is most likely to maintain, and even increase, competition in United States brewing industry markets.

Entry into American brewing markets by new American firms is highly unlikely, and the large established Canadian brewers represent the most probable sources of potential substantial competition in the United States markets. But, if General Brewing were to be sold by Schlitz, the most likely buyer would be one of the larger American brewing firms. Both of the other large Canadian breweries already have an interest in an American brewing company, and Schlitz probably would not desire to increase the chances of strong potential competition from Canada. The smaller American brewing companies, on the other hand, probably would not have the resources to purchase General Brewing and give it the necessary financial and technical help needed to reverse its present downward trend. The sale of General Brewing to one of the larger American breweries, or even to a Canadian brewery which already has a substantial interest in the United States brewing industry, might well create new antitrust problems and is, therefore, not at all desirable. See United States v. E. I. du Pont de Nemours, 366 U.S. 316, 333, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961).

The Probable Effect on Competition of Schlitz’ Acquisition of Burgermeister

Schlitz places great emphasis on what it describes as Burgermeister’s deteriorating financial condition. (See, e. g., Schlitz Proposed Findings 16-19, 28). However, the evidence conclusively establishes that Burgermeister was not a failing firm within the doctrine expounded by the Supreme Court in International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431 (1930). Furthermore, as the trial court’s Findings point out, Burgermeister had a modern plant, a healthy balance sheet and a strong group of beer wholesalers. Of course, it is true that Burgermeister’s sales and profits were declining at the time of the Schlitz acquisition. However, this is undoubtedly true of many firms which decide to sell out to a competitor. Allowing an acquiring company to successfully raise the defense that its acquired former competitor showed declining sales and profits in the years immediately preceding the acquisition surely would provide an exception to Section 7 large enough to eviscerate the statute.

Schlitz asks the trial court to find that there is “no evidence that when a wholesaler adds a new brand to his line he reduces his efforts on behalf of the other brands he is handling.” (Schlitz Proposed Finding No. 46). This argument misses the point. It is clear that most brewers believe that a wholesaler needs a full price line of beers in order to compete most effectively. (Tr. 430, lines 17-22; Tr. 246, line 24 — 247, line 2; Tr. 303-304; Tr. 615, line 17 — 616, line 11). Furthermore, most brewers would like to have wholesalers who handle only their products, and there is a trend in this direction in the beer industry. (Tr. 245, lines 5-16; Tr. 1573 — 1574; Tr. 302, lines 5-16). When a brewer like Schlitz acquires a full price line of beers, it is in a position to select the most effective wholesalers of these beers and to require these wholesalers to carry the full line of Schlitz products. The evidence shows that the wholesalers selected by Schlitz will concentrate their efforts on Schlitz products, while those who have lost either Burgermeister, General Brewing’s Lucky Lager, or Schlitz, will be less effective outlets for other brewers who do not market a full price line of beers. Schlitz carried out this process of selecting the most effective of the Schlitz or Burgermeister wholesalers after it acquired Burgermeister, and it is probable that Schlitz would do the same thing with the General Brewing wholesalers if it were allowed to control General Brewing. Schlitz’ potential power in this important aspeet of competition in the beer industry is somewhat analogous to the situation in the Brown Shoe case. There, in discussing the vertical anti-competitive effects of the Brown-Kinney merger, the Supreme Court noted:

“[I]t is apparent both from past behavior of Brown and from the testimony of Brown’s President, that Brown would use its ownership of Kinney to force Brown shoes into Kinney stores.” 370 U.S. at 332, 82 S.Ct. at 1527.

The Court pointed out that one effect of the merger, therefore, would be to foreclose sections of the market to other shoe manufacturers who sold their shoes in Kinney stores.

Although Schlitz does not “own” the beer wholesalers who sold Burgermeister or who now sell Lucky Lager, it is clear that Schlitz could and did “force” its full line of products into some outlets and take its products away from other outlets. In either case, the wholesalers involved become less effective distributors for the products of other brewers. Thus, the Schlitz acquisitions of both American brewing companies have had and would continue to have serious anti-competitive consequences at the important wholesaler level in the beer industry.

The Court has prepared a Final Judgment and Decree consonant with all of the foregoing. A copy thereof appears as Appendix G.

APPENDIX A

16. Leading Brewers in the United States. Attached hereto are tables as follows:

(a) Pp. 150, 151. A list of the brewers in the United States who, at various times, have appeared among the leading 25 based on volume of annual sales,

(b) Pp. 152-154. A table showing by years the brewers who were the leading brewers in the United States in specified years (not complete for all years) based on sales for such year and showing their volume of sales in thousands of barrels (last “000” omitted) for such year and their rank for such year.

(c) P. 155. A table showing by certain years the total sales of the leading 25 brewers and the percentage of the total United States market for beer the leading 25 brewers had.

The sources from which the data for the above tables was taken were providing data on the brewers who were in the top 25 in certain years and for these provided certain other data but not complete data for all years. It resulted that there are gaps in the data. For example, if a brewer had ranked 26 in every year no data would be shown for such brewer although in many years that brewer out-ranked brewers for whom data is shown. It follows that the mere fact that no data is shown for a brewer in a given year should not be taken as indicating that brewer was not operating in that year.

Brewers Who Have Been in the Top 25 at Some Time After 1939 and Head Office Location

1. Acme Brewing Co., San Francisco, Calif.

2. Anheuser-Busch, Inc., St. Louis, Mo.

3. Associated Brewing Co. (Pfeiffer), Detroit, Mich.

4. (P) Ballantine & Sons, Newark, N. J.

5. Burger Brewing Co., Cincinnati, Ohio

6. Blatz Brewing Co., Milwaukee, Wise.

7. Burgermeister Brewing Corp. (San Francisco), San Francisco, Calif.

8. Carling Brewing Co. (Brewing Corp. of America), Cleveland, Ohio

9. (Adolph) Coors Co., Golden, Colo.

10. Drewrys Limited U.S.A., Inc., South Bend, Ind.

11. Duquesne Brewing Co., Pittsburgh, Pa.

12. Falstaff Brewing Co., St. Louis, Mo.

13. Feigenspan Brewing Co., Newark, N. J.

14. Fort Pitt Brewing Co., Sharpsburg, Pa.

15. General Brewing Corp. (Lucky Lager), San Francisco, Calif.

16. Genesee Brewing Co., Rochester, N. Y.

17. Goebel Brewing Co., Detroit, Mich.

18. Griesedieck Bros., St. Louis, Mo.

19. Griesedieck-Western Brewing Co., Belleville, 111.

20. Gunther Brewing Co., Baltimore, Md.

21. Theo. Hamm Brewing Co., St. Paul, Minn.

22. Hudepohl Brewing Co., Cincinnati, Ohio

23. International Breweries, Inc., Detroit, Mich.

24. Jackson Brewing Co., New Orleans, La.

25. John F. Trommer, Inc., Brooklyn, N. Y.

26. (G.) Krueger Brewing Co., Newark, N. J.

27. Liebmann Breweries, Inc., Brooklyn, N. Y.

28. Lone Star Brewing Co., San Antonio, Texas

29. Los Angeles Brewing Co., Los Angeles, Calif.

30. Miller Brewing Co., Milwaukee, Wise.

31. Minneapolis Brewing Co., Minneapolis, Minn.

32. Narragansett Brewing Co., Cranston, R. I.

33. National Brewing Co., Baltimore, Md.

34. Olympia Brewing Company, Olympia, Wash.

35. Pabst Brewing Company, Milwaukee, Wise.

36. Pearl Brewing Co., San Antonio, Texas

37. Peter Fox Brewing Co., Chicago, 111.

38. Piel Bros., Brooklyn, N. Y.

39. Pittsburgh Brewing Co., Pittsburgh, Pa.

40. Red Top Brewing Co., Cincinnati, Ohio

41. Jacob Ruppert, New York, N. Y.

42. (The P. & M.) Schaefer Brewing Co., Brooklyn, N. Y.

43. (Jos.) Schlitz Brewing Co., Milwaukee, Wise.

44. (C) Schmidt & Sons, Inc., Philadelphia, Pa.

45. (Jacob) Schmidt Brewing Co., St. Paul, Minn.

46. Stegmaier Brewing Co., Wilkes-Barre, Pa.

47. Stroh Brewing Co., Detroit, Mich.

48. Terre Haute Brewing Co., Terre Haute, Ind.

Brewer 1959 B. Vol. 1990 B. Vol. 1961 B. Vol. 1962 B. Vol. 1963 B. Vol.

2 Anheuser-Busch 1 8,065 1 8,477 1 8,508 1 9,035 1 9,397

3 Associated. 26 900 24 918 24 932 24 948 21 1,151

4 Ballantine 6 4,325 6 4,409 6 4,510 6 4,538 6 4,478

7 Burgermeister 21 974

8 Carling 5 4,418 4 4,822 5,047 4 5,359 4 5,681

9 Coors 14 1,649 13 1.907 2,303 11 2,773 9 3,054

10 Drewrys 15 1,629 15 1,612 1,651 14 1,948 12 2,602

11 Duquesne 20 1,098 20 1,046 1,007 22 1,003 24 1,010

12 Falstaff 3 4,748 3 4,911 5,128 5 5,310 5 5,548

15 General 11 2,178 11 2,168 2,237 12 2,160 14 1,982

16 Genesee 27 789 27 805 880 23 965 22 1,100

21 Hamm's 7 3,552 7 3.907 3,714 8 3,724 7 3,826

23 International 24 932 23 919

24 Jackson 23 961 22 950 23 964 21 1,032 23 1,018

27 Liebmann 9 2,929 9 2,950 9 2,987 9 2,992 10 3,018

28 Lone Star 26 802 25 895 25 903 25 895 25 900

30 Miller 10 2,359 10 2,377 10 2,707 10 2,805 11 2,830

32 Narragansett 25 905 26 894 21 1,094 20 1,161 20 1,226

33 National 19 1,342 18 1,355 18 1,375 18 1,381 18 1,401

34 Olympia 18 1,415 16 1,497 16 1,558 16 1,742 16 1,776

35 Pabst 4 4,500 5 4,738 3 5,217 3 5,844 3 6,672

36 Pearl 22 968 21 1,023 17 1,429 17 1,484 17 1,599

38 Piel 16 1,511 17 1,481 19 1,360

41 Jacob Rupert 17 1,430 19 1,305 20 1,200 19 1,209 19 1,269

42 Schaefer 8 3,050 8 3,203 8 3,467 3,778 8 3,750

43 Schlitz 2 5,863 2 5,694 2 5,767 2 6,869 2 7,833

44 C. Schmidt 13 1,732 14 1,802 14 1,855 15 1,871 15 1,941

47 Stroh 12 2,111 12 2,075 13 2,029 13 2,037 13 2,045

SALES OF 25 TOP BREWERS

Thousands Percent oí Year oí Barrels National Market

1939

1940

1941 41.5

1942 42.2

1943 41.4

1944 39.7

1945 41.1

1946 40.3

1947 46.0

1948 49.25

1949 51.5

1950 55.2

1951 57.7

1952 60.2

1953 61.3

1954 62.1

1955 64.9

1956 67.5

1957 58,418 69.25

1958 59,537 70.52

1959 64,649 73.8

1960 66,441 75.61

1961 68,949 77.4

1962 72,861 79.9

1963 77,107 82.2

MARKET SHARES OF MAJOR BREWERS IN 8-STATE/ 9-STATE/ AND 11-STATE AREAS, 1963

COMPANY 8-STATE BARRELS % 9-STATE BARRELS % 11-STATE BARRELS %

Anheuser-Busch 1,255,266 9.6 1,308,694 9.7 1,370,239 9.7

Arizona Brewing 131,102 1.0 146,681 1.1 146,913 1.0

Blitz-Weinhard Co. 296,534 2.3 296,534 2.2 296,534 2.1

Carling Brewing Co. 338,890 2.6 338,890 2.5 347,331 2.5

Coors Co., Adolph 1,782,715 13.6 1,965,888 14.5 2,267,305 16.1

Falstaff Brewing Corp. 433,789 3.3 473,355 3.5 498,533 3.5

General Brewing Corp. 1,738,082 13.3 1,749,150 12.9 1,767,262 12.5

Grace Bros. Brewing Co. 134,357 1.0 134,357 1.0 134,357 1.0

Great Falls Brewing Co. 117,859 .9 117,859 .9 119,577 .9

Hamm Brewing Co., Theo. 1,211,548 9.3 1,244,117 9.2 1,285,843 9.1

Maier Brewing Co. 593,407 4.5 593,407 4.4 593,407 4.2

Miller Brewing Co. 309,393 2.4 320,730 2.4 341,788 2.4

Olympia Brewing Co. 1,680,103 12.8 1,680,103 12.4 1,682,327 11.9

Pabst Brewing Co. 704,405 5.4 704,405 5.2 710,238 5.0

Schlitz Brewing Co., Jos. 1,306,642 10.0 1,357,451 10.0 1,403,812 10.0

Sicks' Rainier Brewing Co. 592,799 4.5 592,799 4.4 593,396 4.2

All Other Companies 463,348 3.5 494,073 3.7 549,184 3.9

Total 13,090,239 100.0 13,518,493 100.0 14,108,046 100.0

APPENDIX C

hi

MATTERS OF STIPULATION

Subject to the reservation of objections above stated matters of fact and of evidence are stipulated to as follows:

13. Sales of Beer in California. Attached hereto are statistical tables showing sales of beer in California by brewers and by years. These were prepared from statistical reports prepared by the California Brewers Association, compiled from figures supplied by California state agencies and providing statistical information in respect of sales of beer in California. In recent years, this data has been obtained from the California State Board of Equalization, which in turn obtains a monthly tax return regarding sales of beer in California from each brewer located in California and each out-of-state brewer who supplies beer in California.

Before 1960 data of this sort for individual brewers was available only for brewers having breweries in California. Sales of beer produced elsewhere were reported but not by individual brands so that before 1960 only the total is available for beer produced outside of California and sold in California and is shown as “Imports” (whether produced elsewhere in the United States or abroad). Thus figures for such brewers as Anheuser-Busch, Schlitz and Falstaff are not separately shown until they had breweries in California. The figures for sales for each such brewer before it had a brewery in California are included in “Imports” and the failure of the name of such brewer to appear in earlier years does not mean it had no sales in California in such earlier years. Brewers who never have had a brewery in California, as Coors, Olympia and Miller appear separately for the first time in 1960 and their sales in California before 1960 are included in “Imports”.

The following changes have occurred in the designation of brewers listed in these reports due to changes in corporate name and/or acquisition by another corporation, and brewery locations are:

Brewery Locations

Except as next noticed the brewers referred to in the statistical tables had a brewery in California:

The Adolph Coors brewery is located at Golden, Colorado.

The Olympia brewery is located at Olympia, Washington.

The Miller brewery is located at Milwaukee, Wisconsin.

The Sicks’ Rainier brewery is located at Seattle, Washington.

Carling Brewing Co. has several breweries, none located in California.

The Arizona Brewing Co., Inc., brewery is at Phoenix, Arizona and it was recently acquired by Carling Brewing Co.

Change of Name

The name of San Francisco Brewing Corporation (at one time known as Milwaukee) was changed to Burgermeister Brewing Corporation on February 15, 1957.

The name of General Brewing Corporation was changed to Lucky Lager Brewing Company and then again changed back to General Brewing Corporation.

Aztec Brewing Co. changed its name to Altes Brewing Co.

Regal Amber Brewing Company changed its name to Regal Pale Brewing Company.

Pacific Brewing & Malting Co. (San Jose) on re-organization was known as Wieland’s Brewing Co.

Acquisitions and Other Changes

The Golden West brewery (Oakland) was acquired by Goebel Brewing Co. (Detroit, Michigan) in 1950.

The Los Angeles Brewing Co. was acquired by Pabst Brewing Co. (Milwaukee, Wisconsin) in 1948 and merged with Pabst in 1953.

The Wieland brewery in San Jose (formerly Pacific) was acquired by Falstaff Brewing Corp. (St. Louis, Missouri) on February 15,1952.

The Rainier brewery (San Francisco) was acquired by Theo. Hamm Brewing Co. (St. Paul, Minnesota) in 1953 and the name and brand was acquired by the Sicks’ company of Seattle, Washington which became known as Sicks’ Rainier Brewing Co.

Acme Breweries (for a short time known originally as California Brewing Association, not to be confused with a somewhat similar name that appeared for a short time later) had two breweries, one in Los Angeles and one in San Francisco, (a) The Los Angeles brewery was acquired by Rheingold Brewing Co. (Liebmann Breweries, Inc. of Brooklyn, New York) in 1953 and was acquired from Rheingold by Theo Hamm Brewing Co., in 1957. The San Francisco Acme plant was also acquired in 1953 by Rheingold, was disposed of by it in 1954 to local interests who operated it as California Brewing Co. until August 1958 when it ceased operation as a brewery.

The assets, except cash, of Burgermeister Brewing Corp. were acquired by Jos. Schlitz Brewing Company as of December 31, 1961.

The Regal Pale brewery in San Francisco was acquired by Maier Brewing Co. in 1963.

1933 1934

Calif Percentage Calif Percentage Sales of share Sales of share Barrels Rank of market Barrels Rank of market

Acme 165,481 1 18.69 226,665 1 12.40

Rainier 158,943 2 17.95 214,010 2 11.71

Los Angeles Brew. 135,166 3 15.27 157,981 4 8.65

Golden West 105,825 4 11.95 116,239 6 6.36

S. F. Brew. 73,444 5 8.29 91,698 7 5.02

Aztec 44,718 6 5.05 176,742 3 9.67

Maier 41,586 7 4.70 74,517 9 4.08

Balboa 32,328 8 3.65 120,833 5 6.61

El Dorado 29,238 9 3.30 26,619 19 1.46

Fresno 16,777 10 1.89 31,288 16 1.71

Grace 15,420 11 1.74 41,721 13 2.28

Regal Amber 14,745 12 1.67 88,749 8 4.86

El Rey 13,836 13 1.56 19,894 23 1.09

Humboldt 11,963 14 1.35 71,627 10 3.92

Globe 9,723 15 1.10 39,067 14 2.14

Vernon 8,961 16 1.01 35,716 15 1.95

Ambassador 2,922 17 0.33 26,171 20 1.43

Anchor 1,641 18 0.19 3,370 27 .18

Pacific 818 19 .09 61,153 11 3.35

St. Claire 737 20 .08 29,698 18 1.63

? 493 21 .06

Capital 350 22 .04

Arrowhead 328 23 .04

General 47,579 12 2.60

Buffalo 32,494 17 1.78

Eckert 20,246 21 1.11

? 20,011 22 1.10

West Coast 14,426 24 .79

Salinas 12,811 25 .70

Monterey 8,465 26. .46

Yosemite 7,671 27 .42

North Star 2,565 29 .14

Bailey 2,489 30 .14

Modesto 1,934 31 .11

? 1,629 32 .09

Lynwood 744 33 .04

107 34 .01

885,443 1,826,929

No export sales figures for 1933 and 1934

Calif Percentage Calif Percentage Sales of share Sales of share Barrels Rank of market Barrels Rank of market

Acme 242,627 1 13.15 357,557 1 15.69

Rcdnier 219,321 2 11.89 249,840 2 10.97

Los Angeles Brew. 150,805 3 8.17 189,786 4 8.33

General 134,707 4 7.30 226,150 3 9.93

Aztec 131,598 5 7.13 130,798 6 5.74

Golden West 103,316 6 5.60 113,502 7 4.98

S. F. Brewing 97,895 7 5.31 131,741 5 5.78

Regal Amber 87,213 8 4.73 99,537 9 4.37

Humboldt 83,788 9 4.54 89,508 10 3.93

Balboa 67,691 10 3.67 37,692 16 1.65

Maier 63,793 11 3.46 78,298 11 3.44

Grace 62,045 12 3.36 105,886 8 4.65

Buffalo 50,770 13 2.75 65,754 12 2.89

Pacific 47,498 14 2.57 51,876 13 2.28

Vernon 35,551 15 1.93 40,874 15 1.79

El Dorado 33,489 16 1.81 45,345 14 1.99

St Claire 31,545 17 1.71 35,686 18 1.57

Ambassador 31,339 18 1.70 36,855 17 1.62

Eckert 22,466 19 1.22 22,747 20 1.00

Globe 22,289 20 1.21 17,363 24 .76

Fresno 21,034 21 1.14 19,386 21 .85

Monterey 17,573 22 .95 13,429 25 .59

El Rey 13,081 23 .71 29,342 19 1.29

Salinas 12,094 24 .66 17,366 23 .76

Imperial 11,405 25 .62 6,877 29 .30

West Coast 9,669 26 .52 19,356 22 .85

Lynwood 9,011 27 .49 9,401 28 .41

Hollywood 8,079 28 .44 252 34 .01

Modesto 7,490 29 .41 9,830 27 .43

Yosemite 6,688 30 .36 6,133 30 .27

North Star 3,394 31 .18 90 35 .004

Anchor 2,492 32 .14 3,847 32 .17

Bailey 2,070 33 .11 — — —

Rio 886 34 .05 4,284 31 .19

W. L. <S Gufsch 372 35 .02 1,437 33 .06

San Diego 10,553 26 .46

1,845,084 2,278,378

1937

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Acme 437,875 381,500 1 16.11

Rainier 319,406 286,685 2 12.10

General 268,264 248,392 3 10.49

Los Angeles Brew. 236,569 232,508 4 9.82

Golden West 133,044 129,394 5 5.46

S. F. Brew. 129,643 120,609 6 5.09

Aztec 119,213 107,346 7 4.53

Pacific Malt 104,244 95,529 8 4.03

Regal Amber 101,046 95,171 9 4.02

Grace 99,131 93,290 10 3.94

Maier 88,807 88,262 11 3.73

Buffalo 72,749 70,616 12 2.98

Humboldt 78,383 65,490 13 2.77

Balboa 49,364 46,478 14 1.96

El Dorado 45,283 45,232 15 1.91

Vernon 45,692 45,174 16 1.91

Eckert 34,279 33,657 17 1.42

St. Claire 30,878 30,515 18 1.29

Ambassador 27,408 27,355 19 1.16

El Rey 27,388 25,534 20 1.08

San Diego 17,780 17,773 21-.75

Fresno 16,750 16,750 22 .71

Globe 17,001 16,583 23 .70

Salinas 12,467 12,454 24 .53

Modesto 10,269 10,220 25 .43

Imperial 9,423 9,423 26 .40

West Coast 8,057 8,052 27 .34

Anchor 3,021 3,014 28 .13

Lynwood 1,787 1,784 29 .06

Gufsch 1,198 1,198 30 .05

Standard 1,195 1,195 31 .05

Monterey (Los Angeles) 915 902 32 .04

Rio 477 477 33 .02

2,549,006 2,368,562

1938

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Acmé 440,636 377,355 1 15.58

Rainier 296,270 267,683 I 11.05

Los Angeles Brew. 259,926 257,043 3 10.61

Imports — 230,781 4 9.53

General 256,022 225,800 5 9.32

Golden West 124,189 120,513 6 4.98

Pacific 115,176 108,176 7 4.47

Grace 102,621 100,708 8 4.16

Regal Amber 99,301 94,220 9 3.89

Aztec 101,165 90,176 10 3.72

S. F. Brewing 88,870 82,652 11 3.41

Maier 76,239 75,809 12 3.13

Monarch (Balboa) 71,301 69,340 13 2.86

Buffalo 59,428 58,351 14 2.41

Vernon 36,142 35,530 15 1.47

El Dorado 35,109 35,109 16 1.45

Humboldt 42,297 31,747 17 1.31

Eckert 30,712 30,324 18 1.25

Ambassador 23,498 23,496 19 .97

St. Claire 23,890 23,455 20 .97

Albion (El Rey) 19,440 18,883 21 .78

San Diego 18,568 18,420 22 .76

Fresno 13,929 13,929 23 .58

Monterey (Salinas) 12,703 12,693 24 .52

Globe 5,507 5,412 25 .22

Red Bluff 4,716 4,716 26 .19

Modesto 3,889 3,889 27 .16

Anchor 2,487 2,487 28 .10

Rollinson (West Coast) 1,587 1,534 29 .06

Kern 1,155 1,155 30 .05

Lynwood 277 277 31 .01

Imperial 212 212 32 .01

Yosemite 122 122 33 .005

2,367,384 2,421,997

1939

California Sales Barrels Percentage of share Bank of market

Acme 428,177 1 17.21

Rainier 302,784 2 12.17

Los Angeles Brew. 280,246 3 11.26

Imports 235,690 4 9.47

General 209,565 5 8.42

Regal Amber 129,809 6 5.22

Golden West 109,617 7 4.41

Grace 103,002 8 4.14

Pacific 102,882 9 4.14

S. F. Brewing 94,745 10 3.81

Aztec 87,512 11 3.52

Maier 82,018 12 3.30

Monarch 66,510 13 2.67

Buffalo 47,125 14 1.89

Eckert 32,522 15 1.31

Vernon 30,039 16 1.21

El Dorado 28,083 17 1.13

Albion 18,221 18 .73

Fresno 16,456 19 .66

Ambassador 15,820 20 .64

Humboldt 14,747 21 .59

San Diego 14,149 22 .57

St. Claire 12,711 23 .51

Monterey 10,410 24 .42

Red Bluff 4,938 25 .20

Kern 4,815 26 .19

Anchor 2,631 27 .11

Yosemite 2,355 28 .09

Globe 116 29 .005

Rollison 115 30 .005

2,487,810

No export sales figures 1939.

1940

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Acmé 532,226 452,952 1 18.41

Rainier 363,290 309,655 2 12.59

Los Angeles Brew. 302,787 299,836 3 12.19

Imports — 244,067 4 9.92

General 218,295 211,200 5 8.58

Regal Amber 149,536 143,791 6 5.84

S. F. Brewing 143,323 119,309 7 4.84

Pacific 100,845 97,602 8 3.97

Grace 97,940 95,236 9 3.87

Aztec 104,765 91,900 10 3.74

Golden West 89,973 84,471 11 3.43

Maier 67,679 67,230 12 2.73

Monarch 65,138 64,557 13 2.62

Buffalo 35,002 34,592 14 1.41

Eckert 32,075 32,075 15 1.30

Vernon 28,282 27,303 16 1.11

El Dorado 24,714 24,714 17 1.00

Fresno 17,290 17,290 18 .70

Eagle (Albion) 14,749 14,503 19 .59

Monterey 11,498 11,498 20 .47

San Diego 11,275 11,275 21 .46

Anchor 2,160 2,160 22 .09

Ambassador 1,811 1,805 23 .07

Red Bluff 873 873 24 .04

Kern 300 300 25 .01

Yosemite 231 231 26 .009

Humboldt 65 32 27 .00

2,416,122 2,460,457

1941 1942

Calif. Percentage Calif. Percentage Sales of share Sales of share Barrels Rank of market Barrels Rank of market

Acme 537,951 1 20.05 719,684 1 20.89

Rainier 339,328 2 12.65 400,631 5 11.63

Los Angeles Brew. 323,886 3 12.07 414,680 3 12.04

Imports 296,497 4 11.05 510,900 2 14.83

General 276,956 5 10.32 414,617 4 12.03

Regal Amber 170,065 6 6.34 220,532 6 6.40

S. F. Brew. 120,346 7 4.49 142,890 8 4.15

Aztec 114,311 8 4.26 156,629 7 4.55

Pacific 106,047 9 3.95 125,200 10 3.63

Grace 81,885 10 3.05 129,122 9 3.75

Golden West 73,571 11 2.74 72,105 11 2.09

Maier 50,600 12 1.89 32,089 13 .93

Monarch 44,576 13 1.66 220 23 .007

Buffalo 29,350 14 1.09 8,085 16 .23

Eckert 27,498 15 1.02 35,632 12 1.03

Vernon 23,820 16 .89 16,153 15 .47

El Dorado 20,104 17 .75 26,141 14 .76

Fresno 14,095 18 .53 8,078 17 .23

Monterey 10,745 19 .40 3,052 19 .09

Eagle (Albion) 10,012 20 .37 676 22 .02

San Diego 9,593 21 .36 5,361 18 .16

Anchor 1,635 22 .06 1,418 21 .04

U. S. Brewing 1,603 20 .05

2,682,871 3,445,498

No export sedes figures for 1941 and 1942

1943

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Acme 1,008,389 861,749 1 21.10

Imports — 552,802 2 13.54

Los Angeles Brew. 500,065 492,036 3 12.05

Rainier 586,654 487,990 4 11.95

General 548,621 470,536 5 11.52

Regal Amber 308,510 254,992 6 6.24

S. F. Brewing 235,040 214,042 7 5.24

Aztec 200,947 167,101 8 4.09

Grace 164,563 156,917 9 3.84

Pacific 153,720 137,650 10 3.37

Golden West 112,856 101,709 11 2.49

Maier 57,986 57,460 12 1.41

McKee (Eckert) 46,305 46,305 13 1.13

Fresno 37,073 35,958 14 .88

El Dorado 30,795 30,795 15 .75

U. S. Brewing 15,895 14,091 16 .35

Anchor 1,479 1,387 17 .03

4,008,898 4,083,520

1944

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Acme 1,309,853 1,115,722 1 23.79

Imports — 585,524 2 12.49

Rainier 637,654 535,539 3 11.42

Los Angeles Brew. 540,809 531,805 4 11.34

General 567,684 497,166 5 10.66

Regal Amber 320,871 287,504 6 6.13

S. F. Brewing 264,438 243,810 7 5.20

Aztec 212,564 197,324 8 4.21

Grace 193,742 192,292 9 4.10

Pacific 160,039 146,290 10 3.12

Golden West 112,170 104,067 11 2.22

Maier 68,366 67,536 12 1.44

Fresno 57,642 57,642 13 1.23

McKee 57,614 55,961 14 1.19

U. S. Brewing 42,291 36,159 15 .77

El Dorado 32,349 32,349 16 .69

Anchor 3,509 2,463 17 .05

4,581,595 4,689,153

1945

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Acme 1,360,222 1,152,582 1 22.21

Imports — 827,307 2 15.94

Rainier 652,989 568,538 3 10.96

General 599,421 564,800 4 10.88

Los Angeles Brew. 552,846 545,604 5 10.51

Regal Amber 313,011 304,621 6 5.87

S. F. Brew. 268,654 260,104 7 5.01

Aztec 248,333 224,414 8 4.32

Grace 166,722 166,722 9 3.21

Pacific 153,112 151,789 10 2.92

Golden West 147,193 147,193 11 2.84

Maier 90,822 90,419 12 1.74

McKee 59,008 56,811 13 1.09

Fresno (Grace) 52,525 52,525 14 1.01

El Dorado 32,935 32,935 15 .63

U. S. Brewing 37,223 30,390 16 .59

Buffalo 10,758 10,758 17 .21

Anchor 3,025 2,231 18 .04

4,748,799 5,189,743

1949

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Acme 1,179,907 1,013,760 1 20.76

Imports 911,544 2 18.67

General 558,600 540,043 3 11.06

Rainier 547,774 508,337 4 10.41

Los Angeles Brew. 495,952 493,334 5 10.10

Regal Amber 308,278 301,292 6 6.17

S. F. Brew. 249,704 240,634 7 4.93

Aztec 228,332 214,914 8 4.40

Pacific 139,448 139,030 9 2.85

Golden West 133,319 133,319 10 2.73

Grace 127,345 127,345 11 2.61

Maier 86,747 86,747 12 1.78

McKee 50,736 48,992 13 1.00

Fresno 43,469 43,469 14 .89

U. S. Brewing 36,073 28,956 15 .59

El Dorado 25,834 25,834 16 .53

Buffalo 22,013 22,013 17 .45

Anchor 4,506 3,503 18 .07

4,238,037 4,883,066

1947

California California Percentage Sales and Sales of share Exports Barrels Sank of market

Imports — 1,261,433 1 23.06

Acme 1,159,322 988,823 2 18.08

General 658,255 633,952 3 11.59

Los Angeles Brew. 602,098 598,803 4 10.95

Rainier 448,469 388,922 5 7.11

Regal Amber 369,432 357,033 6 6.53

S. F. Brewing 363,149 352,389 7 6.44

Aztec 229,983 224,039 8 4.10

Pacific 201,387 201,087 9 3.68

Maier 148,714 144,360 10 2.64

Grace 127,403 118,642 11 2.17

Golden West 119,173 112,711 12 2.06

El Dorado 33,214 33,214 13 .61

McKee 32,728 32,728 14 .60

Buffalo 12,185 12,185 15 .22

U. S. Brewing 4,542 4,013 16 .07

Fresno 3,910 3,910 17 .07

Anchor 2,174 2,157 ' 18 .04

4,516,138 5,470,401

1948

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Imports — 1,280,414 1 24.83

Los Angeles Brew. 750,558 748,929 2 14.52

Acme 862,873 696,258 3 13.50

Lucky Lager (General. 680,720 659,310 4 12.79

Regal Amber 470,155 458,900 5 8.90

S. F. Brewing 461,807 451,560 6 8.76

Pacific 190,533 190,381 7 3.69

Rainier 224,410 173,735 8 3.37

Altes (Aztec) 154,354 152,009 9 2.95

Maier 144,210 142,477 10 2.76

Golden West 86,432 79,886 11 1.55

Grace 116,211 72,988 12 1.42

El Dorado 25,541 25,541 13 .50

Eckert (McKee) 11,190 11,190 14 .22

Buffalo 7,814 7,814 15 .15

U. S. Brewing 2,328 2,328 16 .05

Anchor 1,892 1,892 17 .04

Fresno 749 749 18 .01

4,191,777 5,156,361

1949

California Sales and Exports California Sales Barrels Bank Percentage of share of market

Imports — 1,123,387 1 22.09

Lucky Lager 840,932 817,032 2 16.07

Los Angeles 794,955 794,131 3 15.62

Acme 651,489 567,196 4 11.15

Regal Amber ■572,056 562,696 S 11.07

S. F. Brew. 496,478 488,611 6 9.61

Pacific 165,681 162,441 7 3.19

Rainier 168,372 151,504 8 2.98

Altes 142,689 142,483 9 2.80

Maier 114,100 111,790 10 2.20

Grace 76,871 72,309 11 1.42

Golden West 61,271 57,734 12 1.14

El Dorado 25,977 25,977 13 .51

Eckert 4,471 4,471 14 .09

Anchor 2,123 2,123 15 .04

Buffalo 800 800 16 .02

4,118,265 5,084,685

1950

California Sales and Exports California Sales Barrels Bank Percentage of share of market

Lucky Lager 1,074,442 1,035,358 1 19.75

Imports — 1,015,752 2 19.38

Los Angeles Brew. 686,358 684,690 3 13.06

S. F. Brew. 623,426 607,302 4 11.59

Regal Amber 551,835 544,538 5 10.39

Acme 561,060 496,273 6 9.47

Maier 210,416 210,015 7 4.01

Goebel (Golden West) 187,181 184,571 8 3.52

Pacific 139,221 137,716 9 2.63

Rainier 127,784 120,296 10 2.30

Altes 110,827 110,399 11 2.11

Grace 65,662 64,380 12 1.23

El Dorado 27,797 27,797 13 .53

Anchor 2,406 2,406 14 .05

4,368,415 5,241,493

1951

California California Percentage Sales and Sales of share Exports Barrels Bank of market

Imports — 1,057,105 1 19.48

Lucky Lager 1,095,477 1,040,193 2 19.17

S. F. Brew. 837,750 806,236 3 14.86

Los Angeles Brew. 580,351 576,793 4 10.63

Regal Amber 541,756 523,157 5 9.64

Acme 493,864 441,758 6 8.14

Maier 358,196 358,196 7 6.60

Goebel 218,231 213,810 8 3.94

Pacific 115,729 115,172 9 2.12

Rainier 119,933 112,945 10 2.08

Altes 92,398 92,370 11 1.70

Grace 63,697 62,833 12 1.16

El Dorado 24,220 24,220 13

Anchor 1,988 1,988 14 .45

4,543,590 5,426,776

1952

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Lucky Lager 1,307,755 1,221,743 1 21.59

Imports — 1,103,194 2 19.49

S. F. Brewing 996,416 961,380 3 16.99

Regal Amber 572,159 556,272 4 9.83

Los Angeles Brew. 555,398 553,497 5 9.78

Acme 426,048 388,904 6 6.87

Maier 369,671 369,671 7 6.53

Goebel 221,830 208,083 8 3.68

Rainier 89,981 83,923 9 1.48

Wielands (Pacific) 84,552 82,420 10 1.46

Grace 56,711 56,711 11 1.00

Altes 50,221 50,221 12 .89

El Dorado 22,076 22,076 13 .39

Anchor 1,595 1,595 14 .03

4,754,413 5,659,690

1953

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Lucky Lager 1,532,412 1,378,149 1 23.46

Imports — 1,106,553 2 18.84

S. F. Brewing 1,017,997 946,817 3 16.12

Regal Amber 601,803 585,646 4 9.97

Pabst (Los Angeles Brew.) 597,932 571,843 5 9.74

Acme 398,028 363,094 6 6.18

Maier 321,617 319,884 7 5.45

Falstaff (Wielands) 327,672 316,790 8 5.39

Goebel 271,710 172,545 9 2.94

Rainier 48,290 44,035 10 .75

Grace 43,032 42,951 11 .73

El Dorado 17,162 17,162 12 .29

Altes 6,572 6,572 13 .11

Anchor 1,591 1,591 14 .03

5,185,818 5,873,632

1954

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Lucky Lager 1,570,493 1,396,827 1 23.91

S. F. Brewing 1,041,100 953,029 2 16.32

Imports — 709,960 3 12.15

Pabst 752,745 601,527 4 10.30

Regal Pale (Regal Amber) 607,607 595,852 5 10.20

Falstaff 347,073 323,793 6 5.54

Rheingold (Acme L.A.) 274,813 269,501 7 4.61

Maier 233,650 228,683 8 3.91

Hamm's (Rainier) 225,027 217,939 9 3.73

Schlitz 290,638 140,359 10 2.40

Anheuser-Busch 269,273 126,129 11 2.16

California Brew. (Acme S.F.) 136,058 121,002 12 2.07

Goebel 144,873 107,940 13 1.85

Grace 33,172 33,164 14 .57

El Dorado 14,061 14,061 15 .24

Anchor 1,584 1,584 16 .03

5,942,167 5,841,350

1955

California California Percentage Sales and Sales of share Exports Barrels Bank of market

Lucky Lager 1,606,813 1,388,347 1 22.89

S. F. Brewing 1,071,003 977,561 2 16.12

Imports — 681,765 3 11.24

Hamm's 711,612 606,309 4 10.00

Regal Pale 619,009 597,095 5 9.84

Pabst 613,036 541,693 6 8.93

Falstaff 337,864 283,047 7 4.67

Anheuser-Busch 451,910 256,234 8 4.22

Schlitz 508,107 243,190 9 4.01

Maier 224,744 216,957 10 3.58

Rheingold 138,222 135,635 11 2.24

Goebel 108,692 80,912 12 1.33

Grace 32,510 31,552 13 .52

California Brewing 24,320 18,479 14 .30

El Dorado 4,054 4,054 15 .07

Anchor 2,214 2,214 16 .04

6,454,110 6,065,044

1956

California Sales and Exports California Sales Barrels Bank Percentage of share of market

Lucky Lager 1,719,714 1,436,720 1 22.79

Burgermeister (S. F. Brew.) 1,032,203 943,762 2 14.97

Imports — 838,419 3 13.30

Hamm's 824,322 757,130 4 12.01

Pabst 664,834 607,879 5 9.64

Regal Pale 572,749 553,325 6 8.78

Anheuser-Busch 537,408 323,716 7 5.13

Falstaff 322,131 268,235 8 4.25

Schlitz 501,284 264,860 9 4.20

Maier 153,661 137,884 10 2.19

Rheingold 96,263 92,270 11 1.46

Southern (Grace) 51,861 50,860 12 .81

California Brewing 21,797 17,393 13 .28

Goebel 10,890 10,013 14 .16

Anchor 2,235 2,235 15 .04

6,511,352 6,304,701

1957

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Lucky 1,716,897 1,414,789 1 21.57

Imports — 1,014,282 2 15.46

Burgermeister 971,291 887,798 3 13.53

Hamm's 892,319 845,910 4 12.90

Pabst 573,795 538,511 5 8.21

Regal Pale 464,449 452,062 6 6.89

Falstaff 497,158 441,849 7 6.74

Anheuser-Busch 576,271 369,020 8 5.63

Schlitz 517,237 283,692 9 4.32

Maier 220,016 195,109 10 2.97

Southern 71,825 67,922 11 1.04

Rheingold 31,938 30,754 12 .47

California 20,270 15,114 13 .23

Anchor 2,825 2,825 14 .04

6,556,291 6,559,637

1958

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Lucky Lager 1,877,022 1,553,338 1 22.39

Imports — 1,284,421 2 18.51

Burgermeister 967,113 886,359 3 12.78

Hamm's 851,472 766,512 4 11.05

Pabst 609,969 580,278 5 8.36

Falstaff 490,706 431,553 6 6.22

Regal Pale 432,405 425,744 7 6.14

Anheuser-Busch 584,244 383,894 8 5.53

Maier 329,089 297,642 9 4.29

Schlitz 477,927 273,331 10 3.94

Grace Bros. 22,729 20,635 11 .30

Southern 19,067 18,491 11 .27

California Brewing 17,578 13,205 13 .19

Anchor 2,412 2,412 14 .03

6,681,733 6,937,815

1959

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Imports — 1,485,482' 1 19.98

Lucky Lager 1,812,524 1,466,894 2 19.73

Hamm's 1,080,104 951,603 3 12.80

Burgermeister 973,837 887,106 4 11.93

Pabst 592,783 555,918 5 7.48

Anheuser-Busch 790,579 474,893 6 6.39

Falstaff 539,359 463,912 7 6.24

Maier 426,060 396,541 8 5.33

Regal Pale 342,572 338,244 9 4.55

Schlitz 506,739 292,559 10 3.94

Grace 77,367 74,083 11 1.00

Pacific 47,199 45,025 12 .61

Anchor 1,251 1,251 13 .02

7,190,374 7,433,511

1960

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Lucky Lager 1,719,159 1,320,480 1 17.6

Hamm's 1,117,314 977,865 2 13.0

Burgermeister 891,324 805,289 3 10.7

Olympia — 745,663 4 9.9

Pabst 586,306 545,373 5 7.3

Anheuser-Busch 775,772 511,507 6 6.8

Maier 523,215 491,426 7 6.5

Coors — 476,656 8 6.3

Falstaff 509,825 416,703 9 5.5

Regal Pale 312,524 309,541 10 4.1

Schlitz 489,836 293,238 11 3.9

Miller — 205,200 12 2.7

Other U.S. Imports — 144,723 13 1.9

Grace 122,044 118,665 14 1.6

Sicks' Rainier — 61,853 15 0.8

Outside U.S. Imports — 42,217 16 0.6

Fisher — 22,417 17 0.3

Carling — 15,525 18 0.2

Arizona — 12,751 19 0.2

Pacific 6,325 6,235 20 0.1

Steam Beer (Anchor) 383 383 21 0.0

7,054,027 7,523,710

1961

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Lucky Lager 1,758,884 1,336,731 1 17.3

Hamm's 1,092,755 943,827 2 12.5

Olympia — 771,658 3 10.0

Coors — 717,511 4 9.3

Burgermeister 726,533 653,898 5 8.5

Pabst 695,855 642,218 6 8.3

Anheuser-Busch 896,899 526,241 7 6.8

Maier 484,767 457,525 8 5.9

Falstaff 492,865 385,893 9 5.0

Schlitz 460,141 283,278 10 3.6

Miller — 231,067 11 3.0

Regal Pale 222,844 219,834 12 2.8

Other U.S. Imports — 156,266 13 2.0

Grace 154,890 150,808 14 1.9

Fisher — 80,242 15 1.0

Sicks' Rainier — 62,677 16 0.8

Outside U.S. Imports — 47,120 17 0.6

Arizona — 28,667 18 0.4

Carling — 19,471 19 0.3

Steam Beer (Anchor) 1,633 1,633 20 0.0

6,988,066 7,716,565

1962

California Sales and Exports California Sales Barrels Rank Percentage of share of market

Lucky Lager 1,589,716 1,333,185 1 16.4

Hamm's 1,175,914 1,012,495 2 12.4

Schlitz *8 1,219,995 996,983 3 12.3

Coors — 982,924 4 12.1

Olympia — 847,570 5 10.4

Pabst 719,312 648,863 6 8.0

Anheuser-Busch 1,074,319 577,282 7 7.1

Maier 489,197 463,825 8 5.7

Falstaff 512,655 389,650 9 4.8

Miller — 234,855 10 2.9

Regal Pale 196,265 190,590 11 2.3

Other U.S. Imports — 150,104 12 1.8

Grace 142,461 137,433 13 1.7

Sicks' Rainier — 67,350 14 0.8

Outside U.S. Imports — 48,536 15 0.6

Arizona — 29,042 16 0.4

Carling — 21,691 17 0.3

Steam Beer 1,726 1,726 18 0.0

7,121,560 8,134,104

1963

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Coors — 1,193,795 1 13.8

General (Lucky) 1,487,881 1,169,151 2 13.7

Schlitz 1,419,250 1,120,482 3 13.1

Anheuser-Busch 1,333,367 1,033,218 4 12.0

Hamm's 1,201,119 992,580 5 11.5

Olympia — 837,440 6 9.7

Pabst 775,214 661,670 7 7.7

Maier 596,656 566,983 8 6.6

Falstaff 474,594 350,835 9 4.1

Miller — 227,821 10 2.6

U. S. Imports — 155,171 11 1.8

Grace 135,462 131,146 12 1.5

Sicks' Rainier — 67,301 13 0.7

Outside U.S. Imports — 57,358 14 0.7

Arizona — 29,185 15 0.3

Carling — 24,840 16 0.2

Steam Beer 1,326 1,326 17 0.0

Regal Pale 56 56 18 0.0

7,424,925 8,620,358

1964

California California Percentage Sales and Sales of share Exports Barrels Rank of market

Coors — 1,496,008 1 16.3

Olympia — 1,109,549 2 12.1

Schlitz 1,286,931 1,036,762 3 11.3

General Brewing 1,219,071 1,033,087 4 11.3

Anheuser-Busch 1,303,716 1,002,334 5 11.0

Hamm's 1,069,117 891,524 6 9.7

Maier 682,699 654,913 7 7.2

Pabst 659,640 551,598 8 6.0

Miller — 382,891 9 4.2

Falstaff 405,755 319,161 10 3.5

Other U.S. Imports — 263,209 11 2.9

Grace 152,726 147,451 12 1.6

Sicks' Rainier — 90,969 13 1.0

Outside U.S. Imports — 76,109 14 0.8

Carling — 49,967 15 0.6

Arizona — 45,907 16 0.5

Steam Beer 1,469 1,469 17 0.0 .

6,781,124 9,152,908

APPENDIX D

15. Sales of Beer in Hawaii by Brewers, 1961-1963. Below is a statistical statement of sales of beer (in number of barrels) by brewers, 1961-1963, in Hawaii, which is hereby authenticated, and it is stipulated that it is evidence of the matters therein recited:

SALES (IN BARRELS) OF BEER IN HAWAII —1961-1963

BREWER 1961 1962 1963

American Brewing Co. 3,419 163 —

Anheuser-Busch, Inc. 17,189 18,100 19,587

Blitz-Weinhard Co. — — 56

Carling Brewing Co., Inc. 7,854 11,380 16,890

Falstaff Brewing Corp. 27,837 31,336 31,964

General Brewing Co. 108,381 98,414 119,719

Grace Bros. Brewing Co. 1,072 780 755

Hamm's Brewing Co. 2,502 7,862 8,705

Hawaii Brewing Corp. 41,752 33,178 31,439

Maier Brewing Co. 1,368 1,259 2,015

Miller Brewing Co. 17,864 22,705 17,609

Olympia Brewing Co. 6,042 8,693 12,524

Pabst Brewing Co. 2,076 1,003 979

Schlitz-Burgermeister 25,405 23,087 28,074

Sicks' Rainier Brewing Co. 103 — —

TOTAL 262,864 257,960 290,316

APPENDIX E

BEER SALES YEARS ENDED DECEMBER 31 1957 — 1958 — 1959 — 1960

1957 1958 1959 1960

California $34,438,680 $34,407,474 $35,156,063 $32,570,478

Arizona 726,769 767,163 841,604 907,784

Idaho 165,984 151,128 144,606 94,266

Montana 170,920 113,795 82,645 43,960

Nevada 651,212 578,172 546,580 467,373

Oregon 427,941 454,620 380,627 376,831

Washington 284,253 295,209 199,554 212,166

New Mexico 73,168 230,561 121,186

Hawaii 77,841 58,345 92,620 88,257

Alaska 49,625 37,721 49,196 38,597

Export 326,675 285,056 473,608 633,102

$37,319,900 $37,221,851 $38,197,664 $35,554,000

APPENDIX F

RELEVANT PORTIONS OF CLAYTON ACT, SECTION 7 (15 U.S.C. § 18).

Acquisition by one corporation of stock of another

No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.

**********

This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. * * *

APPENDIX G

FINAL JUDGMENT AND DECREE

Plaintiff, United States of America, having filed its complaint herein on February 19, 1964, defendant Jos. Schlitz Brewing Company having appeared and filed its answer to the complaint denying the substantive allegations thereof, and defendant General Brewing Corporation, sued herein as General Brewing Company, having appeared and filed its answer thereto admitting the substantive allegations thereof, the testimony having been taken at the trial hereof, and the Court having fully considered the matter, it is hereby

Ordered, adjudged and decreed as follows:

I

(A) This Court has jurisdiction of the subject matter of this action and the parties hereto pursuant to Section 15 of the Act of Congress of October 15, 1914, as amended (15 U.S.C. § 25).

(B) The acquisition by defendant Jos. Schlitz Brewing Company of the business and assets of Burgermeister Brewing Corporation, as charged in the complaint herein, constitutes a violation of Section 7 of the Clayton Act (15 U.S.C. § 18).

(C) The acquisition by said defendant of common capital stock in John Labatt Limited, as charged in the complaint herein, constitutes a violation of Section 7 of the Clayton Act (15 U.S.C. § 18).

II

As used in this Final Judgment and Decree:

(A) “Person” means any individual, partnership, firm, corporation, association, trustee or other business or legal entity.

(B) “Schlitz” means defendant Jos. Schlitz Brewing Company, its successors and assigns.

(C) “General Brewing” means defendant General Brewing Company, its successors and assigns.

(D) “Burgermeister” means Burgermeister Brewing Corporation prior to December 31, 1961, a corporation organized and existing under the laws of the State of California.

(E) “Labatt” means John Labatt Limited, a Dominion Corporation, organized and existing under the laws of the Dominion of Canada, with its principal office in London, Ontario, Canada.

III

This Final Judgment and Decree is binding upon Schlitz and General Brewing, their respective subsidiaries, affiliates, directors, officers, agents and employees as well as upon all other persons who shall have received actual notice of this Final Judgment and Decree by personal service or otherwise.

IV

(A) Schlitz is permanently enjoined and restrained from acquiring, holding, or exercising any control over, directly or indirectly, any shares of stock of any corporation engaged in the brewing of beer in the State of California or any interest, directly or indirectly, in any brewery facility, plant or other assets of any person engaged in the brewing of beer in the State of California.

(B) For a period of ten (10) years from the date of entry of this Final Judgment and Decree, Schlitz is enjoined and restrained from acquiring, holding or exercising any control over, directly or indirectly, any shares of stock of any corporation engaged in the brewing of beer outside of the State of California or any interest in any brewery facility, plant or other asset of any person engaged in the brewing of beer outside of the State of California except (1) with the prior written consent of the plaintiff herein or (2) if such consent is refused or withheld, after approval by this Court upon an affirmative showing by Schlitz that the effect of the acquisition, holding or control will not be substantially to lessen competition or to tend to create a monopoly in any line of commerce in any section of the country.

(C) For a period of five (5) years after the date of entry of this Final Judgment and Decree, General Brewing is enjoined and restrained from transferring any shares of stock in General Brewing owned by Labatt, Capital Estates, Inc., or Lucky Lager Breweries, Ltd., and from selling any brewing facility or plant owned by General Brewing at the time of entry of this Final Judgment and Decree except after delivery of written notice of any such proposed transfer or sale to the Assistant Attorney General in charge of the Antitrust Division at least sixty (60) days in advance of the intended effective date of each such transfer or sale.

V

(A) Schlitz shall, upon and subject to the terms of this Final Judgment and Decree, divest itself of all of the business and assets of Burgermeister acquired by Schlitz on or about December 31, 1961 and all additional assets or improvements which have since been added thereto by Schlitz (hereinafter all said business, assets, additions and improvements are collectively referred to as “the Burgermeister assets”).

(B) (1) Schlitz is ordered and directed to make bona fide, persistent and sustained efforts to divest itself of the Burgermeister assets by sale, to publicize the availability thereof for sale in appropriate trade and financial publications and to promote the expeditious sale thereof. Sale shall be at a price and upon terms approved by this Court which will consider, among other things, the reasonable market value of the Burgermeister assets, the importance of effectuating a prompt sale and the desirability of sale as a going business to a purchaser who will use the Burgermeister assets as a viable competitor in the sale and production of beer.

(2) Schlitz shall render monthly written reports to this Court, with copies to the Assistant Attorney General in charge of the Antitrust Division, detailing its efforts to divest itself of the Burgermeister assets and the results of such efforts. Plaintiff or Schlitz may apply to this Court for approval or disapproval of any proposal for sale by Schlitz of the Burgermeister assets. All parties shall have the right to be heard thereon.

(C) (1) Schlitz shall take such steps as are necessary to maintain the Burgermeister assets until the time of sale thereof at the standard of operating performance applicable thereto during the year preceding entry of this Final Judgment and Decree. Pending such sale, Schlitz shall not permit the Burgermeister brewery to be diminished in capacity nor turned to uses other than the production of beer. Schlitz shall furnish, to all bona fide prospective purchasers of the Burgermeister assets, information regarding said brewery and permit them to have such access to, and to make such inspection of, the Burgermeister assets and records as are reasonably appropriate.

(2) Schlitz is ordered and directed to continue to use and operate the Burgermeister assets until the time of sale thereof in substantially the same manner in which they have been used and operated during the year preceding entry of this Final Judgment and Decree and to continue the production, advertising and sale of Burgermeister beer in substantially the same manner that such production, advertising and sale has been carried on during that year. Schlitz is ordered and directed to continue to offer to sell Burgermeister beer to the distributors who at the time of entry of this Final Judgment and Decree distribute Burgermeister beer, and to use its best efforts to retain for the purchaser of the Burgermeister assets those distributors presently selling Burgermeister beer.

(3) Schlitz shall not increase its sales, if any, of Old Milwaukee beer to distributors who sell Burgermeister beer nor its advertising or promotion of Old Milwaukee beer, if any, for sale in States where Burgermeister beer is sold until six months after Schlitz has sold the Burgermeister assets as hereinabove required.

VI

Schlitz is ordered to divest itself, completely and unconditionally, of all of those shares of capital stock it holds in Labatt to a person or persons satisfactory to the Court. Within ninety (90) days after the date of entry of this Final Judgment and Decree, Schlitz is ordered to submit to the Court (with copies to plaintiff and General Brewing) a plan for the sale of said stock, setting forth to the extent then known all of the terms and conditions of sale and the identity of the proposed purchaser or purchasers. Pending the complete divestiture of said stock, Schlitz is enjoined and restrained from exercising any dominion or control over said stock, directly or indirectly.

VII

(A) For the purpose of securing compliance with this Final Judgment and Decree and subject to any legally recognized privilege, duly authorized representatives of the Department of Justice shall, upon written request of the Attorney General or of the Assistant Attorney General in charge of the Antitrust Division and on reasonable notice to defendants at their respective principal offices, be permitted (1) reasonable access during the office hours of defendants to all books, ledgers, accounts, correspondence, memoranda and other records and documents in the possession or under the control of defendants relating to any of the matters contained in this Final Judgment and Decree; (2) subject to the reasonable convenience of defendants, and without restraint or interference, to interview officers, directors, agents and employees of defendants regarding such matters. All those so interviewed may have their own counsel present during all such interviews and shall, prior to interview, be advised of this provision therefor.

(B) Upon written request of the Attorney General or the Assistant Attorney General in charge of the Antitrust Division, said defendants shall submit such reports in writing with respect to the matters contained in this Final Judgment and Decree as may from time to time be necessary for its enforcement.

(C) No information obtained by the means permitted in this Section VII shall be divulged by any representative of the Department of Justice to any person other than a duly authorized representative of the Executive Branch of the plaintiff, except in the course of proceedings in which the United States is a party for the purpose of securing compliance with this Final Judgment and Decree or as otherwise required by law.

VIII

This Court expressly retains full jurisdiction for the purpose of enabling any of the parties to this Final Judgment and Decree to apply to this Court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this Final Judgment and Decree or for the modification or termination of any of the provisions thereof or for modifications which, consistently with the purposes thereof, may better comport with sound business practices or for making different or additional provisions for the divestiture by Schlitz of the Burgermeister assets and the Labatt stock if such divestitures have not been completed with all reasonable dispatch or for modification or termination of any of the provisions thereof by this Court on its own motion, and for the enforcement of compliance therewith and punishment of violations thereof. The retention of jurisdiction herein provided for shall not be exercised to relieve Schlitz of its duty, under this Final Judgment and Decree, to divest itself of the Burgermeister assets and of its stock in Labatt. No person shall subvert any provision of this Final Judgment &pd Decree by indirection or otherwise.

ik

Plaintiff’s costs shall be taxed against defendant Schlitz. 
      
      . “I. Stipulation as to Jurisdiction and Venue, Page 1; II. Factual Statement of the Parties’ Versions of the Events, Page 2; III. Factual Statement of the Parties’ Versions of Special Defenses, Page 4; IV. Statement Concerning the Specific Relief Sought, Page 4; V. Statement of Admitted or Undisputed Facts, Page 6; VI. Issues to be Tried, Page 128; VII. Brief Separate Statement of Points of Law, Page 132; VIII. Order With Respect to Witnesses and Exhibits, Page 132; IX. Exhibits Intended to be Offered at the Trial Except Those to be Used for Impeachment Only, Page 135; X. Lists of Witnesses, Page 147; XI. Statement as to Separate Trial of Any Issues of Fact, Page 154; XII. Statement as to Consolidation, Page 154; XIII. Submission Upon an Agreed Statement of Facts, Page 154; XIV. Appointment of an Expert, Page 155; XV. Motion to Dismiss, Page 155; XVI. Pendente Lite Relief, Page 155; XVII. Request for Any Further Discovery, Page 155; XVIII. Amendments to Pleadings, Page 155; XIX. Final Stipulations of Fact, Page 156; XX. Settlement, Page 156; XXI. Informal Pretrial Conferences, Page 156; XXII. Unusual Problems Concerning Trial, Attendance of Parties or Essential Witnesses, or Other Practical Problems, Page 156; XXIII. Further Proceedings and Trial Briefs, Page 157”. (Pre-Trial Order, i. (8/5/65)).
     
      
      . The Pre-Trial Order, under the heading “Purposes of Defendant Schlitz”, stated Issues 14 and 15 as follows. “14- If the evidence adduced at trial shows that the acquisition of a stock interest in John Labatt Limited by defendant Schlitz was for the purpose of participating in the Canadian market, is this a transaction subject to Section 7 of the Clayton Act? 15. Is the acquisition by defendant Schlitz of a stock interest in John Labatt Limited subject to Section 7 of the Clayton Act regardless of the purpose of the acquisition?” As to Issue 14, Schlitz did adduce some evidence in support of the claim that its acquisition of the stock interest in Labatt was for the purpose of participating in the Canadian market. But it was not convincing evidence. As the Findings show, the focus of Schlitz’ interest in the acquisition was really in connection with the United States market and areas therein. In any case, the issue posed by 14 is ultimately one of law and the law is clear that even if the purpose of Sehlitz, or a purpose of Sehlitz, was for participation in the Canadian market, that would not immunize against the proscriptions of Section 7 of the Clayton Act. As to Issue 15, the only “purpose” which might have justified the acquisition under the provisions of Section 7 of the Clayton Act would have been purchase of the Labatt stock “solely for investment” as provided and spelled out in the statute. There is no credible evidence to support any claim that the Sehlitz purchase of Labatt stock was “solely for investment” and the claim, if made by Sehlitz, appears to have been abandoned.
     
      
      . “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. * * * The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” 370 U.S. at 325, 82 S.Ct. at 1253.
     
      
       States of California, Idaho, Montana, Nevada, Oregon, Utah, Washington and Arizona.
     
      
       Eight States as above, plus New Mexico.
     
      
       Nine States as above, plus Colorado and Wyoming.
     
      
       Data for Colorado are for July-December 1963.
      Sources: Eor 8-State area, Stipulation as to Certain Facts and Certain Evidence, filed June 9, 1965.
      For Colorado, New Mexico and Wyoming, Defendants’ Exhibit DS-185, pages 4, 14 and 26.
     
      
       Lucky Lager figures include Fisher.
     
      
       Schlitz figures include Burgermeister.
     
      
       Taxpaid withdrawal figures. Final report to IRS made in 1962.
     
      
       Source: Department of Taxation, State of Hawaii.
     
      
       Source: California Brewers Association figures.
     
      
       Data supplied by brewer.
     