Here’s the audio of the 7th Circuit corn syrup argument between MillerCoors and Anheuser – Anheuser references a document MillerCoors wants kept sealed discussing what’s in Miller Lite.

 

“That may be about as much as I care to learn.”

 – Judge Easterbrook discussing the varieties of beers using corn.

You can listen to the full 7th Circuit Audio here:

Surprisingly, the 7th Circuit took the parties to task over an issue no one contemplated when the district court rendered its opinion – whether that opinion counts as a proper order under FRCP 65(d) that can be appealed. Basically, even though the parties understood it, and might be subject to sanctions for not complying, the 7th Circuit says it should have been clearer – a separate judgment or some form of order specifically meeting the elements of the rule. The Court also wanted supplemental briefing on two other issues – one involving the ongoing determinations about other ads and packaging that are enjoined:

ORAL ORDER from the bench requesting both parties have 14 days to file supplemental memoranda addressing the following questions: 1) Whether the district court has complied with Federal Rule of Civil Procedure 65(d); 2) Whether this court has appellate jurisdiction; 3) And whether the district court had jurisdiction to make the later changes to the injunction that are now the subject of Appellee Anheuser-Busch Companies, LLC’s separate appeals. 

The oral argument did reveal that when this case finally gets to the merits, we may end up with a decent opinion that could help other companies in their comparative advertising campaigns.

For instance, Anheuser still takes issue with this ad that MillerCoors ran shortly after the SuperBowl:

If it wasn’t clear earlier which of the parties had the better arguments under the law about whether Anheuser can list information that is on the MillerCoors website in Anheuser ads, especially where MillerCoors took out a whole page ad in the NY Times admitting to that information, or why that matters – the audio will clear that up. Basically, Anheuser’s argument is that if MillerCoors is listing it and taking out an ad saying it affects the flavor, then since it is about flavor, assuming that information is true, it should be fair game for the comparative advertising.

Another keen point from the argument was an Anheuser riff on something Judge Easterbrook said to counsel for MillerCoors about how no process could remove billions of yeast cells completely. Apparently, in a portion of the record that MillerCoors has marked confidential, there’s interesting testimony about analysis of residual sugars in the beer. 

Check out the argument at 24:33 where Anhueser’s attorney says they’ve now presented evidence that  (at Docket 146 in the District Court record, pp 24-27) “MillerCoors has marked as highly confidential and it’s under seal” and Anheuser believes that “it strongly confirms … there are residual sugars that are not eaten out of the beer by the yeast and remain in the final product.” 

Yes, that document is sealed:

Docket Text: Response re: [100] Order on Motion to Supplement. Response to MillerCoors, LLC’s Second Supplemental Proposed Findings of Fact in Support of its Motion for Preliminary Injunction by Defendant Anheuser-Busch Companies, LLC. (Sealed Document) (Harrison, Kendall)

The salient points from the bench very much involve the “if MillerCoors lists it, why can’t a competitor” arguments.