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1 DCACTIVE-51906573
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
MILLERCOORS, LLC,
Plaintiff,
v.
ANHEUSER-BUSCH COMPANIES, LLC,
Defendant.
Case No. 19-cv-00218 FILED UNDER SEAL
MILLERCOORS, LLC’S RESPONSE TO ANHEUSER-BUSCH COMPANIES, LLC’S PROPOSED FINDINGS OF FACT IN SUPPORT OF ITS MOTION FOR PARTIAL
SUMMARY JUDGMENT
MillerCoors, LLC (“MillerCoors”) respectfully submits the following Response to
Anheuser-Busch’s Proposed Findings of Fact in support of its Motion for Summary Judgment.
I. The Parties’ Beers and Ingredients
A. AB’s Bud Light Beer
1. Bud Light is not brewed with corn syrup. ECF 164-24, D. Taylor Dec., ¶¶ 11, 35.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “brewed with” can have multiple meanings depending on use and context. (See P’s Supp
PFF 60). Further, AB has advanced an understanding of “corn syrup” that is inconsistent with
MillerCoors understanding--i.e., that simple residual sugars allegedly resulting from the
fermentation of corn syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for
Leave, at 12-13).
Disputed.
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MillerCoors
does not dispute that AB does not currently use corn syrup in the Bud Light brewing process in
the United States.
To the extent that AB argues Miller Lite and Coors Light contain corn syrup because they
contain simple residual sugars, MillerCoors disputes this proposed fact.
2. Bud Light is brewed with rice. ECF 164-24, ¶ 13.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “brewed with” can have multiple meanings depending on use and context. (See P’s Supp
PFF 60).
Undisputed, with qualifications. To the extent MillerCoors understands the proposed fact,
MillerCoors does not dispute that AB currently uses rice in the Bud Light brewing process in the
United States.
3. Bud Light does not contain corn syrup. ECF 164-24, ¶¶ 11, 35.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
Further, AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors
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understanding--i.e., that simple residual sugars allegedly resulting from the fermentation of corn
syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed. To the extent that AB argues Miller Lite and Coors Light contain corn syrup
because they contain simple residual sugars, Bud Light contains the same sugars. So, if the
sugars alone are indicative of the presence of corn syrup, then Bud Light contains the very same
type of simple residual sugars and would necessarily also contain corn syrup. AB’s own expert
admitted he could not identify whether specific sugars in beer come from rice, corn, or barley.
(Dkt. 207, Taubman Dep. Tr., at 24:24-25:16, 36:10-37:5, 41:22-42:9, 43:6-14; 43:18-44:10; see
also Dkt. 158 Manuele Dep. Tr., at 323:24-325:22).
4. Corn syrup is not an ingredient in Bud Light. ECF 164-24, ¶ 11.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “ingredient” can have multiple meanings depending on use and context. Further, AB has
advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--
i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and
barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed.
To the extent that AB argues corn syrup is an ingredient “in” Miller Lite and Coors Light
because they contain simple residual sugars that putatively derive from corn syrup, MillerCoors
disputes this proposed fact because Bud Light contains the very same types of simple residual
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sugars, and AB’s own expert admitted he could not identify whether specific sugars in beer come
from rice, corn, or barley. (Dkt. 207, Taubman Dep. Tr., at 24:24-25:16, 36:10-37:5, 41:22-42:9,
43:6-14; 43:18-44:10; see also Dkt. 158 Manuele Dep. Tr., at 323:24-325:22).
Further disputed as unsupported. The cited evidence purports to list “ingredients” for Bud
Light (e.g., barley, water, rice, and hops), but does not state that those are the only ingredients
and does not state that corn syrup is not an ingredient. (Dkt. 164-24, ¶ 11).
5. Brewing with rice is more time consuming than brewing with corn syrup because
corn syrup skips multiple steps in the brewing process. ECF 164-24, ¶¶ 34–44.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
unclear when the “brewing process” begins.
Disputed. AB’s argument is both unsupported and contradicted.
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6. It is more costly to brew beer with rice than with corn syrup. ECF 164-24, ¶¶ 35,
61(a);
RESPONSE: Disputed as unsupported. AB cites its employee, Dave Taylor, but his
statement that “corn syrup is a less expensive ingredient than rice,” is unsupported ipse dixit
opinion. (See Dkt. 164-24, ¶ 35). Mr. Taylor cites no substantive evidence to support this
opinion.
7. AB uses corn syrup as part of the brewing process for its value brands Natural
Light and Busch Light. ECF 116, Goeler Depo., 142:4–11.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
Further, AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors
understanding--i.e., that simple residual sugars allegedly resulting from the fermentation of corn
syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Undisputed with qualifications. To the extent MillerCoors understands the proposed fact,
MillerCoors does not dispute that AB currently uses corn syrup in the Natural Light and Busch
Light brewing processes in the United States. However, AB’s use of corn syrup is not limited to
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“value brands,” but extends to premium brands such as Bon and Viv Seltzer, Busch, Bud Ice.
(Dkt. 147, White Expert Rep., ¶ 35).
B. Corn Syrup is an Ingredient in Miller Lite and Coors Light
8. Miller Lite is brewed with corn syrup. ECF 158, Manuele Depo., 58:24–59:19.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “brewed with” can have multiple meanings depending on use and context. (See P’s Supp
PFF 60). Further, AB has advanced an understanding of “corn syrup” that is inconsistent with
MillerCoors understanding--i.e., that simple residual sugars allegedly resulting from the
fermentation of corn syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for
Leave, at 12-13).
Disputed. MillerCoors disputes this proposed fact to the extent it suggests that Miller Lite
contains corn syrup in the finished product--it does not. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12,
White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21; Dkt. 143, Manuele Expert Rep., ¶
20). MillerCoors does not dispute that it uses corn syrup (as MillerCoors understands the
substance) in the Miller Lite brewing process as an adjunct, for the same purpose that AB uses
rice, and that the corn syrup is fermented out completely during the brewing process. (Dkt. 13,
Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21).
9.
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Disputed in part. The corn syrup MillerCoors uses in the Miller Lite brewing process is
produced from corn. (Dkt. 143, Manuele Expert Rep., ¶¶ 10-11, 18-19).
11. Corn syrup is an ingredient in Miller Lite. ECF 158,
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “ingredient” can have multiple meanings depending on use and context. Further, AB has
advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--
i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and
barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed. MillerCoors disputes this proposed fact to the extent it suggests that Miller Lite
contains corn syrup in the finished product--it does not. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12,
White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21; Dkt. 143, Manuele Expert Rep., ¶
20). MillerCoors does not dispute that it has listed corn syrup (dextrose) as an ingredient of
Miller Lite and Coors Light, which listing is based on its interpretation of voluntarily adopted
FDA labeling rules that would require disclosure of all material inputs to the brewing process.
Although MillerCoors uses corn syrup (as MillerCoors understands the substance) in the Miller
Lite brewing process that the corn syrup is fermented out completely during the brewing process.
(Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at
177:18-21).
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12. Coors Light is brewed with corn syrup. ECF 158,
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “brewed with” can have multiple meanings depending on use and context. (See P’s Supp
PFF 60). Further, AB has advanced an understanding of “corn syrup” that is inconsistent with
MillerCoors understanding--i.e., that simple residual sugars allegedly resulting from the
fermentation of corn syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for
Leave, at 12-13).
Disputed. MillerCoors disputes this proposed fact to the extent it suggests that Coors
Light contains corn syrup in the finished product--it does not. (Dkt. 13, Manuele Decl., ¶ 11;
Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21; Dkt. 143, Manuele
Expert Rep., ¶ 20). MillerCoors does not dispute that it has listed corn syrup (dextrose) as an
ingredient of Miller Lite and Coors Light, which listing is based on its interpretation of
voluntarily adopted FDA labeling rules that would require disclosure of all material inputs to the
brewing process, even if they are consumed in the brewing process. Although MillerCoors uses
corn syrup (as MillerCoors understands the substance) in the Coors Light brewing process that
the corn syrup is fermented during the brewing process. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12,
White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21).
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Disputed in part. The corn syrup MillerCoors uses in the Coors Light brewing process is
produced from corn. (Dkt. 143, Manuele Expert Rep., ¶¶ 10-11, 18-19).
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19. Prior to and including the date of Super Bowl LIII (Feb. 3, 2019), MillerCoors’s
website identified corn syrup as an “ingredient” in Miller Lite beer. ECF 40-1; ECF 40-3; ECF
40-4.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “ingredient” can have multiple meanings depending on use and context. Further, AB has
advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--
i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and
barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed as unsupported. The cited website does not support that MillerCoors has
identified corn syrup as an “‘ingredient’ in Miller Lite beer.” (Dkt. 40-1, at 2). Rather, the
website lists corn syrup alongside yeast as ingredients that are used in the brewing process. The
MillerLite.com and CoorsLight.com websites contain extensive, educational discussions of the
role that corn syrup plays in brewing, none of which is mentioned by AB’s advertising.
(https://www.millerlite.com/ingredients; https://www.coorslight.com/our-beer). MillerCoors thus
disputes this proposed fact to the extent it suggests that MillerCoors agrees with AB’s theory that
Miller Lite contains corn syrup in the finished product--it does not. (Dkt. 13, Manuele Decl., ¶
11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21; Dkt. 143, Manuele
Expert Rep., ¶ 20). MillerCoors does not dispute that it has listed corn syrup (dextrose) as an
ingredient of Miller Lite and Coors Light, which listing is based on its interpretation of
voluntarily adopted FDA labeling rules that would require disclosure of all material inputs to the
brewing process, even if they are consumed in the brewing process. Although MillerCoors uses
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13 DCACTIVE-51906573
corn syrup (as MillerCoors understands the substance) in the Coors Light brewing process that
the corn syrup is fermented during the brewing process. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12,
White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21).
20. Prior to and including Super Bowl LIII (Feb. 3, 2019), MillerCoors’s website
identified corn syrup as an “ingredient” in Coors Light beer. ECF 40-2; ECF 40-3; ECF 40-5.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “ingredient” can have multiple meanings depending on use and context. Further, AB has
advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--
i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and
barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed as unsupported. The cited website does not support that MillerCoors has
identified corn syrup as an “‘ingredient’ in Coors Light beer.” (Dkt. 40-1, at 2). Rather, the
website lists corn syrup alongside yeast as ingredients that are used in the brewing process.
MillerCoors thus disputes this proposed fact to the extent it suggests that MillerCoors agrees
with AB’s theory that Coors Light contains corn syrup in the finished product--it does not. (Dkt.
13, Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21;
Dkt. 143, Manuele Expert Rep., ¶ 20). The MillerLite.com and CoorsLight.com websites contain
extensive, educational discussions of the role that corn syrup plays in brewing, none of which is
mentioned by AB’s advertising. (https://www.millerlite.com/ingredients;
https://www.coorslight.com/our-beer). MillerCoors does not dispute that it has listed corn syrup
(dextrose) as an ingredient of Miller Lite and Coors Light, which listing is based on its
interpretation of voluntarily adopted FDA labeling rules that would require disclosure of all
material inputs to the brewing process, even if they are consumed in the brewing process.
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Although MillerCoors uses corn syrup (as MillerCoors understands the substance) in the Coors
Light brewing process that the corn syrup is fermented during the brewing process. (Dkt. 13,
Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21).
21. Corn syrup has been listed as an “ingredient” in Miller Lite and Coors Light since
2014. ECF 40-1; ECF 40-2.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “ingredient” can have multiple meanings depending on use and context. Further, AB has
advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--
i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and
barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed as unsupported. Neither the cited websites nor the cited testimony support that
MillerCoors has identified corn syrup as an “‘ingredient’ in Miller Lite and Coors Light.” (Dkt.
40-1, at 2). Rather, evidence supports that MillerCoors has listed corn syrup alongside yeast as a
ingredient “for” the brewing process. The MillerLite.com and CoorsLight.com websites contain
extensive, educational discussions of the role that corn syrup plays in brewing, none of which is
mentioned by AB’s advertising. (https://www.millerlite.com/ingredients;
https://www.coorslight.com/our-beer). MillerCoors thus disputes this proposed fact to the extent
it suggests that MillerCoors agrees with AB’s theory that Miller Lite and Coors Light contain
corn syrup in the finished product--it does not. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12, 3/21/19
White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21; Dkt. 143, Manuele Rep., ¶ 20).
MillerCoors does not dispute that it has listed corn syrup (dextrose) as an ingredient of Miller
Lite and Coors Light, which listing is based on its interpretation of voluntarily adopted FDA
labeling rules that would require disclosure of all material inputs to the brewing process, even if
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they are consumed in the brewing process. Although MillerCoors uses corn syrup (as
MillerCoors understands the substance) in the Coors Light brewing process that the corn syrup is
fermented during the brewing process. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶
5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21).
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24. When MillerCoors stated on its website that corn syrup was an “ingredient” in
Miller Lite, MillerCoors intended to communicate to consumers “what [its] products contain”
and “what’s in them.” ECF 160, 140:13–20.
RESPONSE: MillerCoors objects to this proposed fact as vague, ambiguous, and
misleading. The term “ingredient” can have multiple meanings depending on use and context.
Disputed. As explained above, AB has not accurately stated MillerCoors understanding
of the term “ingredient.”
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18 DCACTIVE-51906573
MillerCoors does not dispute that it has listed corn syrup (dextrose) as an ingredient of
Miller Lite and Coors Light, which listing is based on its interpretation of voluntarily adopted
FDA labeling rules that would require disclosure of all material inputs to the brewing process,
even if they are consumed in the brewing process. (Dkt. 158, Manuele Dep. Tr., at 318: 14-17;
Dkt. 143, Manuele Expert Rep. ¶ 26).
25. Prior to and including Super Bowl LIII (Feb. 3, 2019), MillerCoors did not
include any disclaimers or other clarifications on its ingredients list informing consumers that
corn syrup was merely a brewing adjunct, fermentation aid, or otherwise stating that there was
no corn syrup in the final Miller Lite product. ECF 40-1; ECF 40-3; ECF 40-4.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear what AB means by “disclaimers or clarifications.” Also, the term “ingredient” can have
multiple meanings depending on use and context.
Disputed. It is clear on the face of MillerCoors “ingredient lists” that not all of the listed
ingredients are present in the final Miller Lite product in their original form. The ingredient lists
include yeast, which is not present in the final product. (Dkt. 40-1, 40-3, 40-4). Neither is corn
syrup. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr.,
at 177:18-21; Dkt. 143, Manuele Expert Rep., ¶ 20). Moreover, AB cites incomplete excerpts of
MillerCoors websites--the complete websites provide additional context on the brewing process,
which makes clear ingredients, like corn syrup, are transformed during the brewing process. The
MillerLite.com and CoorsLight.com websites contain extensive, educational discussions of the
role that corn syrup plays in brewing, none of which is mentioned by AB’s advertising.
(https://www.millerlite.com/ingredients; https://www.coorslight.com/our-beer). While it had not
needed to do this before the Super Bowl, in response to AB’s false advertising, MillerCoors
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19 DCACTIVE-51906573
modified its websites for Miller Lite and Coors Light to explain precisely how corn syrup is used
and that it is fermented out of the brewing process. (11/12/19 Boor Decl., Ex. 32).
26. Prior to and including Super Bowl LIII, MillerCoors did not include any
disclaimers or other clarifications on its ingredients list informing consumers that corn syrup was
merely a brewing adjunct, fermentation aid, or otherwise stating that there was no corn syrup in
the final Coors Light product. ECF 40-2; ECF 40-3; ECF 40-5.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear what AB means by “disclaimers or clarifications.” Also, the term “ingredient” can have
multiple meanings depending on use and context.
Disputed. It is clear on the face of MillerCoors “ingredient lists” that not all of the listed
ingredients are present in the final Coors Light product in their original form. The ingredient lists
include yeast, which is not present in the final product. (Dkt. 40-1, 40-3, 40-4). Neither is corn
syrup. (Dkt. 13, Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr.,
at 177:18-21; Dkt. 143, Manuele Expert Rep., ¶ 20). Moreover, AB cites incomplete excerpts of
MillerCoors websites--the complete websites provide additional context on the brewing process,
which makes clear ingredients, like corn syrup, are transformed during the brewing process. The
MillerLite.com and CoorsLight.com websites contain extensive, educational discussions of the
role that corn syrup plays in brewing, none of which is mentioned by AB’s advertising.
(https://www.millerlite.com/ingredients; https://www.coorslight.com/our-beer). While it had not
needed to do this before the Super Bowl, in response to AB’s false advertising, MillerCoors
modified its websites for Miller Lite and Coors Light to explain precisely how corn syrup is used
and that it is fermented out of the brewing process. (11/12/19 Boor Decl., Ex. 32).
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20 DCACTIVE-51906573
II. AB’s Transparency Campaign
A. Consumers Desire Transparency in Ingredients
28. In recent years, AB began to observe a trend that consumers were very interested
in knowing the ingredients that go into products and in ingredient transparency and openness.
ECF 116, 64:20–65:13; ECF 31.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear what AB means by “ingredient transparency and openness.” Also, the term “ingredient”
can have multiple meanings depending on use and context.
Disputed as unsupported.
Mr. Goeler was not
disclosed as an expert in this case, and is not qualified to speak to consumer perceptions anyway.
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Moreover, the evidence supports that only “some consumers” are interested in the
ingredients used to make their products and that the “consumer base is not all the same.” (Dkt.
117, Reis Dep. Tr., at 43:8-15).
30. Because the beer industry does not require ingredient disclosure, many consumers
were unaware of ingredients. ECF 116, 68:7–16.
RESPONSE: MillerCoors objects to this proposed fact as vague, ambiguous, and
misleading. The term “ingredient” can have multiple meanings depending on use and context.
Disputed as unsupported.
Mr. Goeler was not disclosed as an expert
in this case, and is not qualified to speak to consumer awareness of any particular topic. Nor is he
qualified to speak to why consumers are or are not aware of any particular topic. Moreover, the
record supports that at least some consumers are aware of ingredients. (Dkt. 117, Reis Dep. Tr.,
at 43:8-15).
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31. In deciding to prominently list ingredients in Bud Light advertisements and
packaging, AB aimed to start a conversation about beer ingredients that would promote
consumer education and help get consumers to search for and look into beer ingredients. ECF
116, 68:7–16, 89:22–24, 90:18–20.
RESPONSE: MillerCoors objects to this proposed fact as vague, ambiguous, and
misleading. The term “ingredient” can have multiple meanings depending on use and context.
Disputed.
32. Advertising that Bud Light is made with high-quality, natural, agricultural
ingredients was a way to inform consumers that Bud Light was not a low-quality beer. ECF 116,
66:21–24; 67:6–12.
RESPONSE: Disputed. The statement is opinion and largely unverifiable. While this
advertising may have been one “way” to inform consumers “that Bud Light was not a low-
quality beer,” this purpose would have been served by using completely non-comparative
advertising. Instead, AB indisputably ran a series of directly comparative ads, specifically
claiming the use of corn syrup in Miller Lite and Coors Light, despite the indisputable facts that
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AB itself uses corn syrup to brew many of its own products. (Dkt. 116, Goeler Dep. Tr., at
196:3-25).
B. AB’s Advertising Responded to MillerCoors’s Advertising of Corn Syrup Attributes
33. At all relevant times, Miller Lite has advertised that it has “more taste” and fewer
carbohydrates and fewer calories than Bud Light does. ECF 116, 50:9–10.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear what AB means by “at all relevant times.”
Undisputed that Miller Lite has more taste, fewer carbohydrates, and fewer calories than
Bud Light, and that MillerCoors accurately advertises those facts.
34. Coors Light advertises that it is cold and “refreshing.” ECF 116, 50:10–11.
RESPONSE: Undisputed.
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40. Bud Light’s point of difference is that it is brewed with different ingredients. ECF
116, 50:11–12.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear what AB means by “point of difference” or between what products. Also, the term
“ingredient” can have multiple meanings depending on use and context.
Disputed in part. To the extent this proposed fact relates to Miller Lite and Coors Light,
there is overlap in these products’ ingredients. Bud Light, Miller Lite, and Coors Light are all
brewed with barley and water. (Compare Dkt. 117 Reis Dep. Tr., at 107:14-18, 114:14-24, 116:1
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with Dkt. 164, D. Taylor Rep. ¶ 7). To the extent there are differences in the parties’ ingredients,
that is not the only point of difference. Bud Light has more carbohydrates and calories. (11/12/19
Boor Decl., Ex. 33). AB claims that the precise “recipe” used to brew Bud Light, including the
identities of the barleys, hops and yeasts used, constitutes a trade secret, so other than AB’s
publicly disclosed use of rice, water, hops and barley, MillerCoors has no means by which it can
admit or dispute this proposed finding of fact.
41. The goal of AB’s transparency campaign was to allow consumers to make a
choice on those three light beers based on an ingredient conversation. ECF 116, 50:13–16.
RESPONSE: MillerCoors objects to this proposed fact as vague, ambiguous, and
misleading. The term “ingredient” can have multiple meanings depending on use and context.
Disputed.
42. AB avoided disparaging corn syrup in the transparency campaign. ECF 141-4
(Nov. 30, 2018, email from Goeler to members of the Bud Light team saying that the best quote
to come out of a meeting with its advertising agencies was, “This is not about Corn Syrup being
bad, that’s for the consumer to decide. This is about transparency.”).
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RESPONSE: Disputed. Elements of AB’s campaign do disparage corn syrup; for
example, the Bud Light King rejects corn syrup as an ingredient for Bud Light because it is not
one of the “finest” ingredients. (Dkt. 14, Reis Decl., ¶¶ 27a, 34).
43. AB’s Bud Light ads at issue in this lawsuit do not reference “high fructose corn
syrup” or “HFCS.” ECF 116, 90:6–7;
RESPONSE: Disputed. AB’s ads suggest that the syrup discussed by the Bud Light
King and other characters is high fructose corn syrup because the Bud Light King rejects it, as it
is not one of the “finest” ingredients. (Dkt. 14, Reis Decl., ¶¶ 27a, 34).
MillerCoors survey evidence confirms this. (Dkt. 149, Wind Expert Rep., ¶
114).
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44. The different forms of advertising within the transparency campaign had different
roles and different functions. ECF 116, 97:6–9; 98:13.
RESPONSE: Disputed.
AB’s campaign was a multi-touchpoint campaign, with each
element interacting with other elements. (Dkt. 15, Wind Expert Rep., ¶89).
45. Although the overarching creative direction was transparency and ingredients, the
individual advertisements and packaging at issue do not communicate the same message. ECF
116, 98:2–3; compare, e.g., ECF 14-20 (billboards and print advertisement); ECF 40-31 through
40-37 (transcripts of Bud Light commercials); ECF 60, ¶¶ 4–23 (packaging).
RESPONSE: Disputed.
C. Bud Light’s Television Commercials at Issue
i. Special Delivery
46. Special Delivery, which first aired during Super Bowl LIII, takes place in a
mythical medieval Bud Light Kingdom where Bud Light is brewed. ECF 40-32.
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RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “brewed” can have multiple meanings depending on use and context. (See P’s Supp PFF
60).
Undisputed.
47. Special Delivery opens with the Bud Light King stating, “And that’s how you
brew it.” ECF 40-32, p. 4.
RESPONSE: Undisputed.
48. In Special Delivery, the Bud Light King states, “We don’t brew Bud Light with
corn syrup.” ECF 40-32, p. 4.
RESPONSE: Undisputed.
49. In Special Delivery, a member of the King’s court says, “Miller Lite uses corn
syrup.” ECF 40-32, p. 4.
RESPONSE: Undisputed.
50. Special Delivery cites to the millercoors.com website. Harrison Dec., Ex. 4, p. 10.
RESPONSE: Undisputed to the extent the commercial includes a frame with the small
subtitle “Based on information available at millercoors.com as of 1/16/19.” (Dkt. 181-4, at 2).
51. In Special Delivery, the King says, “Oh brewers of Miller Lite, we received your
corn syrup by mistake.” ECF 40-32, p. 4.
RESPONSE: Undisputed.
52. In Special Delivery, a member of the Miller Lite kingdom says, “That’s not our
corn syrup. We received our shipment this morning.” ECF 40-32, p. 4.
RESPONSE: Undisputed.
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53. The member goes on to say, “Try the Coors Light castle. They also use corn
syrup.” ECF 40-32, p. 4.
RESPONSE: Undisputed.
54. In Special Delivery, the King says, “Oh brewers of Coors Light, is this corn syrup
yours?” ECF 40-32, p. 4.
RESPONSE: Undisputed.
55. In Special Delivery, a member of the Coors Light kingdom says, “Looks like the
corn syrup has come home to be brewed. To be clear, we brew Coors Light with corn syrup.”
ECF 40-32, pp. 4–5.
RESPONSE: Undisputed.
56. The closing scene of Special Delivery includes a voice over which says, “Bud
Light, brewed with no corn syrup.” ECF 40-32, p. 5.
RESPONSE: Undisputed.
57. Special Delivery does not reference “high fructose corn syrup” or “HFCS.”
ECF 40-32.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “high fructose corn syrup” or “HFCS” can have multiple meanings depending on use and
context.
Disputed in part. At the time the commercial aired, AB was aware of the consumer
confusion surrounding the distinction between corn syrup and high fructose corn syrup. (Dkt.
149, Wind Expert Rep., at 55). The “Special Delivery” commercial’s reference to “corn syrup”
was designed to, and did in fact, invoke consumers’ concerns regarding high fructose corn syrup
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even though it does not expressly reference to high fructose corn syrup. (Dkt. 15, Wind Expert
Rep., at 8, 36-37; Dkt. 149, Wind Expert Rep., at 51-55).
58. MillerCoors publicly described the Special Delivery advertisement as “going to
great lengths to explain that Miller Lite is brewed with ‘corn syrup,’ while Bud Light is not.”
ECF 40-8.
RESPONSE: Disputed in part as unsupported. The cited evidence references only “an
ad on the Big Game” and does not mention which of the three Super Bowl advertisements it was
addressing. (Dkt. 40-8, at 2). The cited evidence speaks for itself.
ii. Mountain Folk
59. In Mountain Folk, which first aired after Super Bowl LIII, Mountain Man 1 says,
“Coors Light is made with barley, water, hop extract, and corn syrup.” ECF 40-36, p. 4.
RESPONSE: Undisputed.
60. In Mountain Folk, Mountain Man 2 says, “Miller Lite is made with barley, water,
hops, hop extract, and corn syrup.” ECF 40-36, p. 4.
RESPONSE: Undisputed.
61. Mountain Folk cites to the millercoors.com website. Harrison Dec., Ex. 4, p. 2.
RESPONSE: Undisputed to the extent the commercial includes a frame with the small
subtitle “Based on information available at millercoors.com as of 1/16/19.” (Dkt. 181-4, at 3).
62. In Mountain Folk, Mountain Man 3 says, “Bud Light is made with barley, rice,
water, hops, and no corn syrup.” ECF 40-36, p. 4.
RESPONSE: Undisputed.
63. Mountain Folk does not reference “high fructose corn syrup” or “HFCS.” ECF
40-36.
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RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “high fructose corn syrup” or “HFCS” can have multiple meanings depending on use and
context.
Disputed in part. At the time the commercial aired, AB was aware of the consumer
confusion surrounding the distinction between corn syrup and high fructose corn syrup. (Dkt.
149, Wind Expert Rep., at 55). The “Mountain Folk” commercial’s reference to “corn syrup”
was designed to, and did in fact, invoke consumers’ concerns regarding high fructose corn syrup
even though it does not expressly reference to high fructose corn syrup. (Dkt. 15, Wind Expert
Rep., at 8, 36-37; Dkt. 149, Wind Expert Rep., at 51-55).
iii. Other Commercials
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65. No commercial makes reference to “high fructose corn syrup.” ECF 40-33
(Medieval Barbers), 40-34 (Trojan Horse), 40-35 (Cave Explorers), 40-37 (Thespians), 40-38
(No Miller Lite Ingredients Label).
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “high fructose corn syrup” or “HFCS” can have multiple meanings depending on use and
context.
Disputed in part. Every AB commercial’s reference to “corn syrup” was designed to
invoke consumer’s concerns regarding high fructose corn syrup even though it does not
expressly reference to high fructose corn syrup. (Dkt. 15, Wind Expert Rep., at 8, 36-37; Dkt.
149, Wind Expert Rep., at 51-55). Consumers equate “corn syrup” in this context with “high
fructose corn syrup” and therefore believe each commercial is referencing high fructose corn
syrup. (Id.).
66. No commercial says that corn syrup is contained in the final product of Miller
Lite or Coors Light. ECF 40-33 (Medieval Barbers), 40-34 (Trojan Horse), 40-35 (Cave
Explorers), 40-37 (Thespians), 40-38 (No Miller Lite Ingredients Label).
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
Further, AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors
understanding--i.e., that simple residual sugars allegedly resulting from the fermentation of corn
syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed. Every AB commercial stated that that Miller Lite or Coors Light is
made/brewed with or uses corn syrup and/or that Bud Light does not use or is not made/brewed
with corn syrup. (Dkt. 40-32; Dkt. 40-33; Dkt. 40-34; Dkt. 40-35; Dkt. 40-37; Dkt. 40-38). In the
context in which these statements were made, consumers believed the statements to mean that
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corn syrup was in the Miller Lite or Coors Light they drank. (Dkt. 149, Wind Expert Rep., at 47-
50).
D. Bud Light Secondary Packaging
67. Bud Light’s secondary packaging was designed to highlight what AB views as the
quality of what is in Bud Light. ECF 116, 97:21–22.
RESPONSE: Disputed. Bud Light’s secondary packaging was created with “no corn
syrup” messaging to falsely suggest that other competitive beers like Miller Lite and Coors Light
contain corn syrup. (Dkt. 60, Reis Decl., ¶¶ 5-10, 15, 35-37; Dkt. 57, Preliminary Injunction
Order, at 32-33). While this packaging may have been one “way” to inform consumers “the
quality of what is in Bud Light,” this purpose would have been served by using completely non-
comparative advertising. Instead, AB indisputably ran a series of directly comparative ads,
specifically claiming the use of corn syrup in Miller Lite and Coors Light, despite the
indisputable facts that AB itself uses corn syrup to brew many of its own products. (Dkt. 116,
Goeler Dep. Tr., at 196:3-25). It is indisputable that Bud Light does not use corn syrup in
brewing; it nevertheless created a “no corn syrup” icon to call out competitors alleged use of the
same. (Dkt. 223, Lennon Dep. Tr., at 109:3-23, 116:8-119:23).
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69. Bud Light’s secondary packaging accurately lists Bud Light’s four ingredients
used in brewing Bud Light beer: hops, barley, water, and rice. ECF 14-
19; ECF 164-24, ¶ 7.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “ingredient” can have multiple meanings depending on use and context.
Disputed in part. Undisputed that Bud Light’s secondary packaging lists hops, barley,
water, and rice as primary ingredients of Bud Light. (Dkt. 164-24, ¶ 7; Dkt. 60, Reis Decl., ¶¶ 5-
7, 10-11, 15-16). Disputed to the extent “accurately” is used here as a legal conclusion regarding
Bud Light’s secondary packaging.
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71. Bud Light (including its Bud Light Lime and Orange formulations) competes with
many beers and beverages other than Miller Lite and Coors Light;
ECF 116,
170:25–173:1.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
Further, AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors
understanding--i.e., that simple residual sugars allegedly resulting from the fermentation of corn
syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed. The cited evidence does not support that Bud Light competes with “beverages”
beyond Miller Lite and Coors Light. (Dkt. 117, Reis Dep. Tr., at 173:10-23; Dkt. 116, Goeler
Dep. Tr., at 170:25-173:1).
The “no corn syrup”
information on AB’s packaging falsely conveys that corn syrup is an ingredient contained in
competitive beers such as Miller Lite and Coors Light. (Dkt. 60, Reis Decl., ¶¶ 5-11, 15-16, 35-
37; Dkt. 57, Preliminary Injunction Order, at 32-33).
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RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “high fructose corn syrup” or “HFCS” can have multiple meanings depending on use and
context.
Disputed in part. AB was aware of the consumer confusion surrounding the distinction
between corn syrup and high fructose corn syrup. (Dkt. 149, Wind Expert Rep., at 55). AB’s
packaging references to “no corn syrup” was meant to invoke consumers’ concerns regarding
high fructose corn syrup even though it does not expressly reference to high fructose corn syrup.
(Dkt. 117, Reis Dep. Tr., at 86:22-87:3, 173:10-23, 186:9-15; Dkt. 149, Wind Expert Rep., at 51-
55).
75. AB did not consider its Bud Light secondary packaging to be a part of or directly
related to the television advertisements, such as Special Delivery. ECF 116, 97:3–22.
RESPONSE: Disputed. AB’s secondary packaging for Bud Light was part of a
coordinated ingredients campaign, which included AB’s Super Bowl advertisements such as
Special Delivery. (Dkt. 116, Goeler Dep. Tr., at 95:19-97:2). AB’s Bud Light secondary
packaging was one of several elements of the whole campaign. (Id., 95:19-97:2, 98:14-17). In
the lead up to the Super Bowl,
76. The Bud Light secondary packaging does not refer to the Bud Light King or the
Bud Light Knight, or the medieval kingdom depicted in the accused television advertisements.
ECF 14-19.
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RESPONSE: Disputed in part. Bud Light’s secondary package does not refer directly
to the imagery portrayed in the Super Bowl advertisements, including the Bud Light Knight and
medieval kingdom; however, AB’s Campaign was plainly intended to combine several elements
together, including its Super Bowl advertisements and secondary packaging. (Dkt. 116, Goeler
Dep. Tr., at 95:19-97:2, 98:14-17). Undisputed that the Bud Light secondary packaging does not
include overt imagery of the Bud Light Knight or the medieval kingdom seen in AB’s Super
Bowl advertisements.
E. Bud Light Point of Sale/Billboards
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81. No Bud Light billboard makes reference to “high fructose corn syrup” or
“HFCS.” ECF 86, ¶ 81.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “high fructose corn syrup” or “HFCS” can have multiple meanings depending on use and
context.
Disputed in part.
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83. No Bud Light billboard makes reference to corn syrup being “in” Miller Lite or
Coors Light. ECF 86, ¶ 81.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “in” can have multiple meanings depending on use and context. Further, AB has advanced
an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--i.e., that
simple residual sugars allegedly resulting from the fermentation of corn syrup and barley
constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed. Bud Light’s billboards depicted an image of Bud Light and read “100% less
corn syrup than” Miller Lite or Coors Light. (Dkt 86, Amended Complaint, ¶ 81). AB’s
billboards, when viewed both alone and in the greater context of AB’s Campaign, create the false
suggestion that Miller Lite and Coors Light contain corn syrup in the final beer. (Dkt. 117, Reis
Dep. Tr., at 86:22-87:3, 173:10-23, 186:9-15; Dkt. 160, Marino Dep. Tr., at 174:18-175:9, 177:4-
6; Dkt. 86, Amended Complaint, ¶ 95).
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III. Corn Syrup is in the Final Products of Miller Lite and Coors Light
A. MillerCoors Claims Corn Syrup Fully Ferments and Therefore is Not in the Final Beer Product of Miller Lite and Coors Light
84. Since the night of Super Bowl LIII, MillerCoors repeatedly has stated publicly
that no corn syrup is in the Miller Lite or Coors Light finished products. See, e.g., ECF 86, ¶ 11;
ECF 40-8; ECF 40-28; Harrison Dec., Ex. 6.
RESPONSE: Undisputed.
85. When MillerCoors publicly stated that there is no corn syrup in either Miller Lite
or Coors Light, it was telling consumers that the corn syrup sugars are fully fermented in the
brewing process. ECF 160, 98:12–17.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “in” can have multiple meanings depending on use and context. Further, AB has advanced
an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--i.e., that
simple residual sugars allegedly resulting from the fermentation of corn syrup and barley
constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed.
. Mr. Marino’s testimony accurately summarizes a complex
brewing process in which yeast consumes corn syrup.
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86. When MillerCoors publicly stated that no corn syrup is present in either Miller
Lite or Coors Light, it was communicating that there are no corn syrup sugars left in the beer.
ECF 160, 84:7–14; 81:8–16; 111:10–15.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “in” can have multiple meanings depending on use and context. Further, AB has advanced
an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--i.e., that
simple residual sugars allegedly resulting from the fermentation of corn syrup and barley
constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed.
Mr. Marino’s testimony accurately summarizes a complex
brewing process in which yeast consumes corn syrup.
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88. On October 17, 2019, Adam Collins, MillerCoors’s Vice President of
Communication, publicly issued the following statement on behalf of MillerCoors: “Corn syrup
is a brewing adjunct, serving the same basic function to feed yeast as rice does in Bud Light. It is
consumed during the brewing process and corn syrup is not in the final beer.” Harrison Dec., Ex.
7.
RESPONSE: Undisputed.
89. Part of MillerCoors’s corporate response to the Bud Light Super Bowl ads was to
say that corn syrup is fully fermented in the brewing process and that there are no corn syrup
sugars in the Miller Lite or Coors Light finished product. ECF 160, 184:10–14.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “in” can have multiple meanings depending on use and context. Further, AB has advanced
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an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--i.e., that
simple residual sugars allegedly resulting from the fermentation of corn syrup and barley
constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed.
. Mr. Marino’s testimony accurately summarizes a complex
brewing process in which yeast consumes corn syrup.
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94. On February 4, 2019, Mr. Frost posted an article on “Behind the Beer” blog
stating, “… dextrose is widely used across the beer industry by brewers large and small in large
part because it cleanly and efficiently converts to alcohol during fermentation and has a neutral
taste. In short, during the fermentation process, yeast eats these simple sugars and converts them
to alcohol and carbon dioxide. … both Miller Lite and Coors Light use corn-derived sugars
during fermentation, which aids in making them light-bodied, easy-drinking beers with reduced
calories and carbohydrates. None of these sugars are in the final product.” ECF 40-28, p. 1.
RESPONSE: Undisputed.
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96. Peter J. Coors is the Senior Director of Quality for MillerCoors, a Molson Coors
Director, and the son of Pete Coors. ECF 158, 12:19–21, 12:25–13:9.
RESPONSE: Undisputed.
97. Peter J. Coors is knowledgeable about the brewing process. ECF 158, 12:22–24;
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “knowledgeable” can have multiple meanings.
MillerCoors does not dispute that Peter J. Coors has knowledge about MillerCoors
brewing process. MillerCoors has not designated Peter J. Coors as an expert in this matter.
. Mr. Coors has not provided testimony regarding his intent
in the statement. Moreover, there is no evidence of records regarding Mr. Coors’ knowledge of
testing proving that Miller Lite and Coors Light do not contain corn syrup, and such testing was
conducted after the email cited by AB. Further disputed as unsupported as to Mr. Manuele’s
testimony, as there is no testimony that he is referring to Mr. Coors.
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101. On February 22, 2019, MillerCoors published an advertising article on its
“Behind the Beer” blog that stated: “(Corn-derived sugars like corn syrup … cleanly and
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efficiently convert to alcohol during fermentation and have a neutral taste. They do not end up in
the final product.).” Harrison Dec., Ex. 8, p. 1.
RESPONSE: Undisputed.
104. Mr. DeCou is an experienced brewmaster who is knowledgeable about
MillerCoors’s beers. ECF 158, 11:17–12:2; see also
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “knowledgeable” can have multiple meanings.
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MillerCoors does not dispute that Mr. DeCou had knowledge about MillerCoors brewing
process in the past. MillerCoors has not designated Mr. DeCou as an expert in this matter.
Moreover, there is no evidence of records regarding Mr. DeCou’s knowledge of testing proving
that Miller Lite and Coors Light do not contain corn syrup, and such testing was conducted after
the email cited by AB. Further disputed as unsupported as to Mr. Manuele’s testimony, as there
is no testimony that he is referring to Mr. DeCou.
105. Robert Taylor is the current Senior Director of Global Brewing Governance for
Molson Coors and former Director of Brewing Services for MillerCoors. ECF 161, 32:24–33:9.
RESPONSE: Undisputed.
RESPONSE: Undisputed. By way of further response,
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112.
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124. Both Miller Lite and Coors Light have residual sugars in the final product
ECF 159, 35:10–13,
RESPONSE: Disputed. The evidence cited does not support this statement as written.
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125. MillerCoors’s own experts admit the sugars that are present in the
Miller Lite and Coors Light final products come from two sources—they come from the corn
syrup and they come from the malted barley used in the brewing process. ECF 159, 90:18–21;
RESPONSE: Disputed. The evidence cited does not support this statement as written.
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RESPONSE: Undisputed.
132. The non-sugars in corn syrup are not fermentable. ECF 159, 79:19–80:14;
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RESPONSE: Undisputed.
133. The non-sugars in corn syrup make their way into the Miller Lite and Coors Light
final products. ECF 159, 79:19–80:14;
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
D. AB Testing Confirms Corn Syrup is in the Final Products of Miller Lite and Coors Light
136. Because the component parts of corn syrup are in each of the final Miller Lite and
Coors Light products, the source of which is corn syrup, corn syrup exists in each of the final
Miller Lite and Coors Light products. ECF 164-25, ¶ 61.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
Further, AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors
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understanding--i.e., that simple residual sugars allegedly resulting from the fermentation of corn
syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed. MillerCoors has submitted expert testimony that no corn syrup remains in the
final Miller Lite and Coors Light products and that there is no way to determine if the residual
sugar is derived from corn syrup or barley. (Dkt. 12, White Decl., ¶ 5(d); Dkt. 13, Manuele
Decl., ¶ 11; Dkt. 143, Manuele Expert Rep., ¶¶ 26-34; Dkt. 147, White Expert Rep., ¶¶ 39-42).
By way of further response, MillerCoors also disputes that all of the component parts of corn
syrup are in the final products. The testing of the final Miller Lite and Coors Light products did
not show that they contained glucose. Rather, the amount of glucose was below the level of
quantification, so the most that can be said was that glucose was detected but cannot be reliably
quantified by this method because there is so little present. (Dkt. 161, Taylor Dep. Tr., at 71:9-
20, 148:22-149:18; Dkt. 158, Manuele Dep. Tr., at 321:5-13).
137. It is possible to identify whether sugars from the corn syrup used by MillerCoors
to brew Miller Lite and Coors Light are present in the final beer products by conducting carbon
isotope testing. ECF 164-25, ¶ 52.
RESPONSE: Disputed. Mr Taubman has testified that the glucose molecule looks the
same regardless of whether it comes from rice or corn or barley. (Dkt. 207, Taubman Dep. Tr., at
41:22-42:13). By way of further response, MillerCoors has submitted expert testimony that no
corn syrup remains in the final Miller Lite and Coors Light products and that there is no way to
determine if the residual sugar is derived from corn syrup or barley. (Dkt. 12, White Decl., ¶
5(d); Dkt. 13, Manuele Decl., ¶ 11; Dkt. 143, Manuele Expert Rep., ¶¶ 26-34; Dkt. 147, White
Expert Rep., ¶¶ 39-42).
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138. This isotope testing demonstrated that corn syrup sugars are in the final products
of Miller Lite and Coors Light. ECF 164-25, ¶ 56; Harrison Dec., Ex. 16.
RESPONSE: Disputed as unsupported. AB cites a document with no authenticating or
contextualizing testimony. AB’s counsel does not have the requisite foundation to support the
document. (See also Dkt. 207, Taubman Dep. Tr., at 32:19-35:12).
IV. MillerCoors Has Failed to Establish an Injury from AB’s Advertisements or Packaging
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141. MillerCoors’s Vice President of Communications, Adam Collins, published a
tweet after Super Bowl LIII that Bud Light sales were down and Miller Lite sales were up. ECF
160, 253:25–254:6, Harrison Dec., Ex. 17.
RESPONSE: Disputed.
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142. After Super Bowl LIII, Miller Lite was up in sales dollars and sales volume and
share gains among mainstream beers in every channel. ECF 160, 254:3–24.
RESPONSE: Disputed. Miller Lite’s global brand volume decreased 0.7% during the
first quarter of 2019 because, while its segment share increased, the segment decline more than
offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global
brand volume decreased 1.2% during the second quarter of 2019 because, while its segment
share increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex.
16, at 43 (Reis Exhibit 29)).
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144. MillerCoors publicly stated in a tweet on May 8, 2019 “[s]ales are up. And
summer is coming. See why Miller Lite is outpacing its segment and the beer industry as a
whole.” Harrison Dec., Ex. 18; ECF 117, 223:6–17; ECF 160, 249:22–250:3.
RESPONSE: Disputed. Miller Lite’s global brand volume decreased 0.7% during the
first quarter of 2019 because, while its segment share increased, the segment decline more than
offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global
brand volume decreased 1.2% during the second quarter of 2019 because, while its segment
share increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex.
16, at 43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is
“tank[ing].” (Dkt. 117, Reis Dep. Tr., at 203:2-17).
145. MillerCoors’s May 8, 2019 tweet was an accurate statement of the situation for
Miller Lite at that time. ECF 160, 249:22–250:10.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
Disputed. Miller Lite’s global brand volume decreased 0.7% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 1.2% during the second quarter of 2019 because, while its segment share increased,
the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis
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Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].” (Dkt.
117, Reis Dep. Tr., at 203:2-17).
146. Molson Coors’s president and CEO Mark Hunter publicly stated in a press release
dated July 31, 2019 that MillerCoors had a “solid start” for the first four months of the year.
Harrison Dec., Ex. 19, p. 2.
RESPONSE: MillerCoors does not dispute that Mark Hunter made the statement in the
press release. MillerCoors further responds that the document speaks for itself. Disputed to the
extent Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 0.7% during the first quarter of 2019 because, while its segment share increased, the
segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis
Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second quarter of
2019 because, while its segment share increased, the segment decline more than offset that
increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Miller Lite’s global brand
volume decreased 1.2% during the second quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].”
(Dkt. 117, Reis Dep. Tr., at 203:2-17).
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147. Mr. Hunter publicly stated in a press release dated July 31, 2019 that the months
of May and June 2019 were challenging due to unfavorable weather and weak industry demands.
Harrison Dec., Ex. 19, p. 2;
RESPONSE: MillerCoors does not dispute that Mark Hunter made the statement in the
press release. MillerCoors further responds that the document speaks for itself. Disputed to the
extent that AB implies that MillerCoors has not suffered any damage from AB’s false and
misleading Campaign. Coors Light’s global brand volume decreased 7.0% during the first
quarter of 2019 because, while its segment share increased, the segment decline more than offset
that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand
volume decreased 0.7% during the first quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at
39 (Reis Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second
quarter of 2019 because, while its segment share increased, the segment decline more than offset
that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Miller Lite’s global brand
volume decreased 1.2% during the second quarter of 2019 because, while its segment share
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increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].”
(Dkt. 117, Reis Dep. Tr., at 203:2-17).
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149. In a March 8, 2019 “Behind the Beer” blog post, Miller Lite reported that it was
on a 17-quarter run of share gains in the American light lager segment and that it continues to
gather momentum heading into spring. ECF 40-16, p. 1;
RESPONSE: MillerCoors does not dispute the statement was made in the blog post.
MillerCoors has not suffered any damage from AB’s false and misleading Campaign. Miller
Lite’s global brand volume decreased 0.7% during the first quarter of 2019 because, while its
segment share increased, the segment decline more than offset that increase. (11/12/2019 Boor
Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume decreased 1.2% during
the second quarter of 2019 because, while its segment share increased, the segment decline more
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than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Mr. Reis thus
testified that the premium light beer segment is “tank[ing].” (Dkt. 117, Reis Dep. Tr., at 203:2-
17).
150. The March 8, 2019 “Behind the Beer” blog post states that Miller Lite posted
share gains among mainstream beers, was up 1.2% in sales dollars, and was picking up share not
only in its segment but across the entire beer category. ECF 40-16;
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies that Miller Lite’s global brand volume decreased 0.7% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 1.2% during the second quarter of 2019 because, while its segment share increased,
the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis
Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].” (Dkt.
117, Reis Dep. Tr., at 203:2-17).
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151. Anup Shah, Vice President of the Miller Family of Brands, reported in the
March 8, 2019 “Behind the Beer” blog post that AB’s advertisements were not effective in
knocking Miller Lite off its path. ECF 40-16, p. 2;
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies MillerCoors has not suffered any damage from AB’s false and misleading Campaign.
Miller Lite’s global brand volume decreased 0.7% during the first quarter of 2019 because, while
its segment share increased, the segment decline more than offset that increase. (11/12/2019
Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume decreased 1.2%
during the second quarter of 2019 because, while its segment share increased, the segment
decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)).
Mr. Reis thus testified that the premium light beer segment is “tank[ing].” (Dkt. 117, Reis Dep.
Tr., at 203:2-17).
152. In a March 11, 2019 “Behind the Beer” blog post, MillerCoors reported that as of
that date, Coors Light and Miller Lite had each held their share trends. Harrison Dec., Ex. 20;
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies MillerCoors has not suffered any damage from AB’s false and misleading Campaign.
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Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019 because,
while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 0.7% during the first quarter of 2019 because, while its segment share increased, the
segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis
Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second quarter of
2019 because, while its segment share increased, the segment decline more than offset that
increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Miller Lite’s global brand
volume decreased 1.2% during the second quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].”
(Dkt. 117, Reis Dep. Tr., at 203:2-17).
153. In the March 11, 2019 “Behind the Beer” blog post, MillerCoors stated that Miller
Lite continues to pick up share in total beer and has gained a full share point in premium light
segment year to date. Harrison Dec., Ex. 20, p. 2; ECF 160, 253:11–19.
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies that MillerCoors has not suffered any damage from AB’s false and misleading
Campaign. Miller Lite’s global brand volume decreased 0.7% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 1.2% during the second quarter of 2019 because, while its segment share increased,
the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis
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Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].” (Dkt.
117, Reis Dep. Tr., at 203:2-17).
154. In the March 11, 2019 “Behind the Beer” blog post, MillerCoors stated that Coors
Light has held share in premium light beers. Harrison Dec., Ex. 20, p. 2;
ECF 160, 253:11–19.
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies that MillerCoors has not suffered any damage from AB’s false and misleading
Campaign. Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Coors Light’s global brand volume
decreased 7.3% during the second quarter of 2019 because, while its segment share increased,
the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis
Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].” (Dkt.
117, Reis Dep. Tr., at 203:2-17).
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155. In the March 11, 2019 “Behind the Beer” blog post, MillerCoors stated that Bud
Light’s sales plummeted post #corntroversy and that the brand share of Bud Light went down.
Harrison Dec., Ex. 20, p. 1; ECF 160, 253:1–19.
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies that MillerCoors has not suffered any damage from AB’s false and misleading
Campaign. Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 0.7% during the first quarter of 2019 because, while its segment share increased, the
segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis
Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second quarter of
2019 because, while its segment share increased, the segment decline more than offset that
increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Miller Lite’s global brand
volume decreased 1.2% during the second quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].”
(Dkt. 117, Reis Dep. Tr., at 203:2-17).
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156. As of September 23, 2019, Coors Light and Miller Lite had seen share gains in
the wake of Bud Light’s Super Bowl commercials and other advertising by Bud Light about
ingredients. ECF 160, 143:10–144:1.
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies that MillerCoors has not suffered any damage from AB’s false and misleading
Campaign. Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 0.7% during the first quarter of 2019 because, while its segment share increased, the
segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis
Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second quarter of
2019 because, while its segment share increased, the segment decline more than offset that
increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Miller Lite’s global brand
volume decreased 1.2% during the second quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].”
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157. As of September 2019, Miller Lite was up 1.1 points share, Coors Light was up
0.3 points share, and Bud Light was down 1.2 points share. ECF 160, 144:2–10, 144:14–145:3.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous.
Disputed to the extent that AB implies that MillerCoors has not suffered any damage from AB’s
false and misleading Campaign. Coors Light’s global brand volume decreased 7.0% during the
first quarter of 2019 because, while its segment share increased, the segment decline more than
offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global
brand volume decreased 0.7% during the first quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at
39 (Reis Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second
quarter of 2019 because, while its segment share increased, the segment decline more than offset
that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Miller Lite’s global brand
volume decreased 1.2% during the second quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].”
158. A September 24, 2019 Beer Business Daily publication highlighted that Miller
Lite was up 1.1 points share, Coors Light was up 0.3 share, and Bud Light was down 1.2 since
AB’s Super Bowl commercial ran. ECF 160, 257:4–15.
RESPONSE: MillerCoors does not dispute that the statement was made in the
publication. MillerCoors further responds that the document speaks for itself. Disputed to the
extent that AB implies MillerCoors has not suffered any damage from AB’s false and misleading
Campaign. Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
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(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Miller Lite’s global brand volume
decreased 0.7% during the first quarter of 2019 because, while its segment share increased, the
segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis
Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second quarter of
2019 because, while its segment share increased, the segment decline more than offset that
increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Miller Lite’s global brand
volume decreased 1.2% during the second quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].”
159. The September 24, 2019 Beer Business Daily publication stated that Coors Light
has seen improvements since Bud Light’s Super Bowl commercials, with sales volume percent
moving from minus 3.4 percent in the latest 13 weeks to minus 3 percent in the last four weeks,
and only down 1.8 percent in the last week. ECF 160, 257:4–22.
RESPONSE: MillerCoors does not dispute that the statement was made in the blog post.
MillerCoors further responds that the document speaks for itself. Disputed to the extent that AB
implies that MillerCoors has not suffered any damage from AB’s false and misleading
Campaign. Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019
because, while its segment share increased, the segment decline more than offset that increase.
(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Coors Light’s global brand volume
decreased 7.3% during the second quarter of 2019 because, while its segment share increased,
the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis
Exhibit 29)). Mr. Reis thus testified that the premium light beer segment is “tank[ing].” (Dkt.
117, Reis Dep. Tr., at 203:2-17). Redacted
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167. Any sales changes in Miller Lite, Coors Light and Bud Light since Super Bowl
LIII could be caused by factors other than AB’s advertisements. ECF 160, 259:2–7.
RESPONSE: Disputed. Mr. Reis is not a damages expert. By way of further response,
MillerCoors has evidence that in the weeks following the launch of AB’s Campaign that it noted
an increase in negative perceptions of the Miller Lite and Coors Light brands and that confusion
about high-fructose corn syrup was a “major issue following the Super Bowl ads.” (Dkt. 117,
Reis Dep. Tr., at 194:9-196:8; see also Dkt. 15, Wind Expert Rep., ¶¶ 93, 132; Dkt. 149, Wind
Expert Rep., ¶¶ 55 (reporting that the vast majority of respondents are more likely to purchase
beer where an ad states corn syrup is not in the beer), 135 (reporting negative consumer
sentiment about corn syrup), 142 (reporting AB’s campaign has caused harm to MillerCoors)).
168. MillerCoors thanked AB for running Special Delivery and the related ads during
Super Bowl LIII, describing them as a “gift.” ECF 32-1; ECF 40-14.
RESPONSE: Disputed in part. MillerCoors does not dispute that it thanked AB for
running Special Delivery and the related ads during Super Bowl LIII, describing them as a “gift.”
MillerCoors disputes to the extent that AB implies that this statement suggests that MillerCoors
has not suffered any damage from AB’s false and misleading Campaign. Coors Light’s global
brand volume decreased 7.0% during the first quarter of 2019 because, while its segment share
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increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 17, at
39 (Reis Exhibit 36)). Miller Lite’s global brand volume decreased 0.7% during the first quarter
of 2019 because, while its segment share increased, the segment decline more than offset that
increase. (11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Coors Light’s global brand
volume decreased 7.3% during the second quarter of 2019 because, while its segment share
increased, the segment decline more than offset that increase. (11/12/2019 Boor Decl., Ex. 16, at
43 (Reis Exhibit 29)). Miller Lite’s global brand volume decreased 1.2% during the second
quarter of 2019 because, while its segment share increased, the segment decline more than offset
that increase. (11/12/2019 Boor Decl., Ex. 16, at 43 (Reis Exhibit 29)). Mr. Reis thus testified
that the premium light beer segment is “tank[ing].” (Dkt. 117, Reis Dep. Tr., at 203:2-17).
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, Reis Dep. Tr., at 144:24-145:2). Reports of the damages expert are due on
January 3, 2020.
V. MillerCoors’s Unclean Hands
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Pete Marino, MillerCoors’s Chief Public Affairs and
Communications Officer. ECF 160, 7:16–18.
RESPONSE: Undisputed.
184. On February 6, 2019, Mr. Marino published a tweet stating that the Bud Light
King John Barley IV (and therefore Bud Light) was “devious” because Bud Light used corn
syrup in Bud Light Lime and Orange. Harrison Dec., Ex. 21.
RESPONSE: Disputed, but immaterial. This proposed fact does not accurately state
the tweet in question. The tweet speaks for itself. (Dkt. 181-22). Moreover, Mr. Marino posted
the tweet from his personal Twitter account and testified that the tweet was not part of
MillerCoors corporate response. (Dkt. 160, Marino Dep. Tr., at 16:22-24, 23:1-15, 184:1-5).
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190. MillerCoors’s Code of Conduct states with regard to the use of social media, “BE
ACCURATE. Use good judgment and strive for accuracy. Cite sources when possible and
correct errors ASAP by posting a retraction.” ECF 164-15, p. 23.
RESPONSE: Undisputed, but immaterial.
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192. MillerCoors advertises that “not a single product here at MillerCoors ever uses
high fructose corn syrup, while a number of Anheuser-Busch products do.” ECF 119-2, at AB-
MC 668.
RESPONSE: Undisputed.
193. This statement was published during the Super Bowl and was repeated in the Wall
Street Journal. Harrison Dec., Exs. 22–23.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear to what “statement” AB refers.
Disputed as unsupported. To the extent this proposed fact refers to the statement
discussed in Proposed Finding of Fact No. 192, the cited exhibits do not refer to the statement
discussed in Proposed Finding of Fact No. 192.
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195. Arnold Palmer Spiked Half & Half is listed on MillerCoors’s “Brand Nutritional
Data” webpage. ECF 160, 32:19–21; ECF 40-3, p. 1.
RESPONSE: Undisputed, but immaterial.
196. The “Ingredients” column for Arnold Palmer Spiked Half & Half on
MillerCoors’s “Brand Nutritional Data” webpage is blank. ECF 40-3, p. 1.
RESPONSE: Undisputed, but immaterial.
198. On February 8, 2019, Mr. Marino gave an interview with Cheddar, an on-line
program, about the Super Bowl. ECF 40-23.
RESPONSE: Undisputed.
199. In this interview, he stated that Bud Light was “probably” made with rice
syrup.ECF 40-23, 3:16–17; ECF 160, 70:1–15.
RESPONSE: Disputed in part, but immaterial. Mr. Marino stated that AB uses “rice or
probably rice syrup to make Bud Light.” (Dkt. 160, Marino Dep. Tr., at 70:12-13). This
statemnent is true.
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200. This interview was part of MillerCoors’s corporate strategy to respond to Bud
Light’s Super Bowl commercials. ECF 160, 184:6–9.
RESPONSE: Undisputed, but immaterial.
203. Mr. Marino has not asked to correct his interview, which is still on-line, and he
has no plans to do so. ECF 160, 72:14–20.
RESPONSE: Undisputed, but immaterial. In any event, it is true.
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205. MillerCoors claims today on its website that high fructose corn syrup is
something “nutritionists have called Public Health Enemy #1.” ECF 164-16, at MC 25327.
RESPONSE: Disputed in part. MillerCoors February 4, 2019 Behind the Beer blog
reported that some nutritionists have called high fructose corn syrup Public Health Enemy #1.
(Dkt. 164-16, at 3). And they have. See, e.g., Lisa McLaughlin, Is High-Fructose Corn Syrup
Really Good for You?, Time (Sept. 17, 2008);
ttp://content.time.com/time/health/article/0,8599,1841910,00.html; Laura Ries, High Fructose
Corn Syrup, not so sweet., Ries’ Pieces (Sept. 2010),
https://ries.typepad.com/ries_blog/2010/09/high-fructose-corn-syrup-not-so-sweet.html; Jennifer
Goldstein, High fructose corn syrup: How dangerous is it?, NBC News (April 17, 2009, 8:15
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AM), http://www.nbcnews.com/id/29955927/ns/health-diet_and_nutrition/t/high-fructose-corn-
syrup-how-dangerous-it/#.XcOQm9VKipo. Further, as AB knows from its extensive research,
rightly or wrongly, many consumers do find HFCS—and corn syrup to the extent it is confused
with HFCS—to be a serious health concern. AB’s consumer research partners found that, as a
result of confusion with HFCS, corn syrup is a “lightning rod ingredient,” that is a “signifier of
evil” (Dkt. 186, ¶¶ 51-52), and that “People know corn syrup is bad. We don’t have to make that
point. Just that we don’t have it (and maybe that others do).” (Id., ¶¶ 61-62). AB’s partners
further found that “[t]he majority of beer consumers are familiar with both CS and HFCS and
perceive both as very concerning to a high degree.” (Dkt. 186, ¶35).
206. MillerCoors’s own retained expert Dr. John White has testified that a claim that
high fructose corn syrup is “Public Health Enemy #1” is false and lacks any scientific basis. ECF
159, 16:23–17:2; 134:17–21.
RESPONSE: Disputed as unsupported. Dr. White testified that he understood people
have “various opinions” about corn syrup “based on their understanding of the product.” (Dkt.
159, White Dep. Tr., at 17:5-14). He testified, however, that he did not agree that high fructose
corn syrup was not “public health enemy #1.” (Id. at 134:22-135:1). Mr. White testified that, in
his opinion, high fructose corn syrup did not pose and “unique health threat.” (Id. at 17-21).
207. MillerCoors does not intend to correct or take down this statement. ECF 160,
45:7–13.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear to what “statement” AB refers.
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Undisputed, but immaterial. To the extent this proposed finding of fact refers to
MillerCoors February 4, 2019 Behind the Beer blog, the blog’s statement about “public health
enemy #1” is accurate as written.
F. MillerCoors’s Continued use of Corn Imagery
208. After the Bud Light Super Bowl advertisements, MillerCoors amended its website
to describe its ingredients in a different way than it had before the Super Bowl. Harrison Dec.,
Ex. 24, MillerCoors’s Response to Interrogatory No. 12.
RESPONSE: Disputed in part. After MillerCoors became aware of consumer
confusion caused by AB’s “corn syrup” Campaign, MillerCoors updated its website, in part, to
clarify the role that corn syrup plays in the brewing process, e.g., “Corn Syrup (Not High-
Fructose Corn Syrup) A sugar source converted into alcohol in the fermentation process….”
(Dkt. 181-25, at 7). MillerCoors has not changed the brewing ingredients that it has listed for
either Miller Lite or Coors Light. (Id. at 6-9).
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G. MillerCoors’s Ingredient Advertising
211. From 2014–2019, MillerCoors advertised on its website that corn syrup was an
“ingredient” in Miller Lite and Coors Light. ECF 40-1 through 40-5;
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The
term “ingredient” can have multiple meanings depending on use and context. Further, AB has
advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding--
i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and
barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Disputed as unsupported. Neither the cited websites nor the cited testimony support that
MillerCoors has identified corn syrup as an “‘ingredient’ in Miller Lite and Coors Light.” (Dkt.
40-1 to 40-5). Rather, evidence supports that MillerCoors has listed corn syrup alongside yeast as
a brewing ingredients “for” the brewing process. MillerCoors thus disputes this proposed fact to
the extent it suggests that MillerCoors agrees with AB’s theory that Miller Lite and Coors Light
contain corn syrup in the finished product--it does not. (Dkt. 13, 3/22/19 Manuele Decl., ¶ 11;
Dkt. 12, 3/21/19 White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21; Dkt. 143,
Manuele Rep., ¶ 20). MillerCoors does not dispute that it uses corn syrup (as MillerCoors
understands the substance) in the Miller Lite and Coors Light brewing processes and that the
corn syrup is fermented during the brewing processes. (Dkt. 13, 3/22/19 Manuele Decl., ¶ 11;
Dkt. 12, 3/21/19 White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21).
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212. Mr. Marino has admitted that this statement was intended to communicate “what
our products contain and what’s in them.” ECF 160, 140:13–20.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. It is
not clear to what “statement” AB refers.
Disputed. AB selectively cites the testimony of Peter Marino. Mr. Marino’s complete
testimony makes clear that MillerCoors wishes to explain and has explained that “we’re saying
there are no corn syrup sugars left in the beer.” (Dkt. 160, Marino Dep. Tr., at 84:7-14: see also
id. at 78:13-17, 79:2-7, 83:4-8, 98:12-17).
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RESPONSE:
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VI. Consumer Surveys Regarding Deception
252.
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253.
254.
255.
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256.
257.
258.
259.
260.
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261.
262.
263.
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264.
265.
266.
267.
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268.
269.
270.
271.
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272.
273.
274.
A. Mountain Folk Survey
275. MillerCoors submitted a “Report of Yoram (Jerry) Wind” dated March 27, 2019
that attempted to demonstrate a likelihood of deception caused by AB’s Mountain Folk
commercial (“Mountain Folk Survey”). ECF 15.
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RESPONSE: Disputed in part. Dr. Wind’s survey did demonstrate a likelihood of
deception. Dr. Wind’s first survey, standing alone, shows that A-B’s Mountain Folk
advertisement misleads a much greater percentage of consumers than that legally required to
constitute deception. (See Dkt. 15, Wind Expert Rep.). It demonstrated that a net 35% of
consumers who viewed Mountain Folk were misled by the ad into believing that Miller Lite and
Coors Light contain corn syrup. (Dkt. 15, Wind Expert Rep., ¶8).
276. The Mountain Folk Survey included a question about corn syrup, which stated, in
part, “Being ‘made with’ corn syrup may mean a number of different things” (QF7b). ECF 15,
¶ 63; ECF 15-8, Appendix H-11.
RESPONSE: Undisputed, but immaterial.
277.
278.
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279.
280.
281.
282. The Mountain Folk Survey used a control stimulus that included a disclaimer
stating, “While corn syrup is used during the brewing of Miller Lite and Coors Light, there is
NO corn syrup in the Miller Light and Coors Light you drink.” ECF 15, ¶15 (emphasis in
original); Harrison Dec., Ex. 27.
RESPONSE: Undisputed.
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283. Despite seeing this disclaimer, 63.9% of control group respondents chose the
response stating that “corn syrup is used only during the brewing process … but is not in the
Miller/Coors you drink” and 23.5% of those control group respondents chose the response
stating that “corn syrup is both used during the brewing process … and is in the Miller/Coors
you drink.” ECF 15, ¶ 81, Figure 5; ECF 15-12, Appendix L-2.
RESPONSE: Undisputed, but immaterial.
284. The Mountain Folk Survey included a question about high fructose corn syrup
(QF8). ECF 15-8, Appendix H-11.
RESPONSE: Undisputed.
285. Neither the test group stimulus nor the control group stimulus in the Mountain
Folk Survey included the phrase “high fructose corn syrup.” ECF 15, ¶¶ 6, 13–16.
RESPONSE: Undisputed.
286. On behalf of AB, survey expert John Hauser analyzed the Mountain Folk Survey,
and his opinions were set forth in the “Declaration of John R. Hauser, SC.D.” dated April 28,
2019. ECF 37.
RESPONSE: Disputed in part. MillerCoors does not dispute that John Hauser analyzed
the Mountain Folk Survey, and that his opinions were set forth in the “Declaration of John R.
Hauser, SC. D.” MillerCoors disputes the date of the declaration as the declaration was dated for
April 18, 2019 and not April 28, 2019.
287. Prof. Hauser found that the Mountain Folk Survey did not yield reliable results to
support Dr. Wind’s opinions; among other criticisms, he found that the survey design was prone
to generating demand artifacts throughout, biasing the conclusions in MillerCoors’s favor by
providing cues to as to the “correct” answer from MillerCoors’s perspective. ECF 37, ¶ 18.
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RESPONSE: Disputed in part. MillerCoors does not dispute that John Hauser analyzed
the Mountain Folk Survey, and that his opinions were set forth in the “Declaration of John R.
Hauser, SC. D.” MillerCoors disputes that Prof. Hauser’s opinion is valid. Dr. Wind testified that
he disagreed with Prof. Hauser’s opinion. (Dkt. 167, Wind Dep. Tr., at 82:22-25, 99:22-25,
100:1-14).
288. Prof. Hauser found that the Mountain Folk Survey lacked proper filter questions,
included persistent and unnatural probing, and instructed respondents what to believe. ECF 37, ¶
18.
RESPONSE: Disputed in part. MillerCoors does not dispute that John Hauser analyzed
the Mountain Folk Survey, and that his opinions were set forth in the “Declaration of John R.
Hauser, SC. D.” MillerCoors disputes that Prof. Hauser’s opinion is valid. Dr. Wind testified that
he disagreed with Prof. Hauser’s opinion. (Dkt. 167, Wind Dep. Tr., at 82:22-25, 99:22-25,
100:1-14). By way of further response, Prof. Hauser testified that probing questions “may not be
super bad.” (Dkt. 233, Hauser Depo. Tr., at 168: 15-25; 169:1-15).
289. Prof. Hauser stated that Dr. Wind’s “key measure,” based on the closed-ended
question of QF7b regarding “made with corn syrup,” mischaracterized the respondent’s prior
answer; suggests to respondents that there may be ambiguity in the meaning of “made with”;
improperly provided the respondents with cues to the “correct” response; led respondents to
disproportionately select that “correct” response; and merely reflected phrase recognition, not
consumer understanding. ECF 37, ¶¶ 18, 21, 30.
RESPONSE: Disputed in part. MillerCoors does not dispute that John Hauser analyzed
the Mountain Folk Survey, and that his opinions were set forth in the “Declaration of John R.
Hauser, SC. D.” MillerCoors disputes that Prof. Hauser’s opinion is valid. Dr. Wind testified that
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he disagreed with Prof. Hauser’s opinion. (Dkt. 167, Wind Dep. Tr., at 82:22-25, 99:22-25,
100:1-14.)
290. Prof. Hauser stated that Dr. Wind’s report’s identification of two disclaimers, but
reporting data as to only one, as well as references to three videos but data as to only two,
indicates the existence of unreported data. ECF 37, ¶¶ 18, 41–42.
RESPONSE: Disputed in part. MillerCoors does not dispute that John Hauser analyzed
the Mountain Folk Survey, and that his opinions were set forth in the “Declaration of John R.
Hauser, SC. D.” MillerCoors disputes that Prof. Hauser’s opinion is valid. Dr. Wind testified that
he disagreed with Prof. Hauser’s opinion. (Dkt. 167, Wind Dep. Tr., at 82:22-25, 99:22-25,
100:1-14; Dkt. 149, Wind Expert Rep., 33 n. 40).
291. Prof. Hauser stated that Dr. Wind’s closed-ended question about corn syrup and
high fructose corn syrup induced a demand artifact that led some respondents to indicate that the
ad “says, suggests, or implies” that corn syrup and high fructose corn syrup are the same.
ECF 37, ¶¶ 43, 46.
RESPONSE: Disputed in part. MillerCoors does not dispute that John Hauser analyzed
the Mountain Folk Survey, and that his opinions were set forth in the “Declaration of John R.
Hauser, SC. D.” MillerCoors disputes that Prof. Hauser’s opinion is valid. Dr. Wind testified that
he disagreed with Prof. Hauser’s opinion. (Dkt. 167, Wind Dep. Tr., at 82:22-25, 99:22-25,
100:1-14; Dkt. 149, Wind Expert Rep., 33 n. 40).
292. Prior to answering question QF8 in the Mountain Folk Survey, only 1.3% of all
control group respondents and only 1.4% of test group respondents mentioned the word
“fructose” in response to an open-ended question. ECF 37, ¶¶ 43, 46.
RESPONSE: Undisputed, but immaterial.
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293. Prof. Hauser stated that question QF8 in the Mountain Folk Survey specifically
introduced the idea of a relationship between corn syrup and high fructose corn syrup. ECF 37,
¶ 44.
RESPONSE: Disputed in part. MillerCoors does not dispute that John Hauser analyzed
the Mountain Folk Survey, and that his opinions were set forth in the “Declaration of John R.
Hauser, SC. D.” MillerCoors disputes that Prof. Hauser’s opinion is valid. Dr. Wind testified that
he disagreed with Prof. Hauser’s opinion. (Dkt. 167, Wind Dep. Tr., at 82:22-25, 99:22-25,
100:1-14; Dkt. 149, Wind Expert Rep., 34).
B. Special Delivery Survey
294.
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297.
298.
299.
300.
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301.
302.
303.
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304.
305.
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306.
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C. AB’s Packaging Survey
307. On behalf of AB, survey expert Phil Johnson of JJG Group LLC conducted an
online consumer survey titled “A Study of Perceptions of the Bud Light Packaging” (“Packaging
Survey”). ECF 168.
RESPONSE: Undisputed, but immaterial.
308. The survey was conducted between May 30, 2019 and June 3, 2019 and was
presented to the court in ECF 65; it has now been formalized and reported in Mr. Johnson’s
expert report served on October 2, 2019. ECF 168, ¶¶ 8, 11.
RESPONSE: Undisputed, but immaterial.
309. The Packaging Survey included 625 respondents and used a “test” cell and
“control” cell and used two stimuli: (1) a “test package” consisting of front and side panels of the
Bud Light 12-pack packaging bearing the “No Corn Syrup” depiction; and (2) a “control
package” showing the same packaging, but with the “No Corn Syrup” depiction redacted. ECF
168, ¶¶ 11, 15.
RESPONSE: Undisputed that the survey only tested the front and side panel of the
packaging. By way of further response, the packaging survey did not include the bottom panel of
the packaging which stated: “Find out what’s in your beer”. (Dkt. 70, Wind Expert Rep., ¶8).
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310. 311 respondents saw the test package bearing the “No Corn Syrup” language; 314
respondents saw the control package without the corn syrup language; and no respondent saw
both packages. ECF 168, ¶ 17.
RESPONSE: Undisputed, but immaterial.
311. The Johnson Packaging Survey respondents were screened, and quality control
and security measures were used. ECF 168, ¶¶ 18–27.
RESPONSE: Undisputed, but immaterial.
312. The survey respondents were allowed to view the stimuli for as long as they chose
to do so, with a minimum of 10 seconds. ECF 168, ¶ 30.
RESPONSE: Undisputed, but immaterial. By way of further response,
313. The survey respondents were instructed to look at the stimuli as they would if
they were considering buying beer at a liquor store, grocery store, or other retailer that sold beer.
ECF 168, ¶ 29.
RESPONSE: Disputed in part.
314. The survey respondents were asked an open-ended question about the “main
message” of the stimuli (Q2a). ECF 168, ¶ 32.
RESPONSE: Undisputed.
315. The survey respondents were asked an open-ended follow-up question about what
else the packaging may “say or suggest …” (Q2b). ECF 168, ¶ 32.
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RESPONSE: Undisputed.
316. The survey respondents were asked an open-ended question about “what brand of
beer was in the package you looked at” (Q2c). ECF 168, ¶ 32.
RESPONSE: Undisputed.
317. The survey respondents were asked a closed-ended question whether the package
may “say or suggest something about any other brand or brands of beer” (Q3a). ECF 168, ¶ 33.
RESPONSE: Undisputed.
318. The survey respondents who answered yes to Q3a about “other brand or brands”
were asked an open-ended question requesting them to identify the brand(s) of beer the
packaging said something about (Q3b), and they were then asked an open-ended follow-up
question asking for “any other” brands (Q3c). ECF 168, ¶ 33.
RESPONSE: Undisputed.
319. The respondents who identified “other brand(s)” in response to Q3b or Q3c were
then asked an open-ended question, “What did the package say or suggest about [those
brand(s)]?” (Q3d), and then an open-ended follow-up question, “What else, if anything, did it say
or suggest about [those brand(s)]?” (Q3e). ECF 168, ¶ 33.
RESPONSE: Undisputed.
320. The respondents who chose “no specific brand” in response to Q3b about “other
brands” were asked, “What did the package say or suggest about other brands of beer?” (Q3f),
and then an open-ended follow-up question, “What else, if anything, did it say or suggest about
other brands of beer?” (Q3g). ECF 168, ¶ 33.
RESPONSE: Undisputed.
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321. The Packaging Survey showed that 64% of test cell respondents and 60% of
control cell respondents reported that the main message conveyed by the Bud Light secondary
packaging is the ingredients. ECF 168, ¶ 40.
RESPONSE: Disputed in part. MillerCoors does not dispute Mr. Johnson reported those
numbers from his Packaging Survey but does disputes the validity and reliability of the survey.
(Dkt. 70, Wind Supp. Decl., ¶ 30 (“Finally, Mr. Johnson fails to accurately report the results of
the Johnson Survey. In addition, Mr. Johnson provides no description on how he conducted the
coding procedure of open-ended answers, even though this part of the process represents the crux
of his analysis.”))
322. No respondents identified Miller Lite or Coors Light in response to the main
message questions. ECF 168, ¶ 41.
RESPONSE: Undisputed.
323. 72% of the test cell respondents and 77% of the control cell respondents said that
the packaging did not say or suggest anything about other brands of beer; only 21% of the test
cell respondents and 18% of the control cell respondents said that the packaging did say or
suggest anything about another brand. ECF 168, ¶ 43.
RESPONSE: Disputed in part. MillerCoors does not dispute Mr. Johnson reported those
numbers from his Packaging Survey but does disputes the validity and reliability of the survey.
(Dkt. 70, Wind Supp. Decl., ¶ 30 (“Finally, Mr. Johnson fails to accurately report the results of
the Johnson Survey. In addition, Mr. Johnson provides no description on how he conducted the
coding procedure of open-ended answers, even though this part of the process represents the crux
of his analysis.”); see also id., ¶ 26 (“In particular, Mr. Johnson’s key questions all use the
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phrase “say or suggest” when the standard phrasing for such questions in this setting is “say,
suggest, or imply.”)).
324. Only one test cell respondent identified Miller Lite or Coors Light and only five
control cell respondents (the group who saw the stimulus without “corn syrup” statements)
identified Miller Lite or Coors Light, and only two of those control cell respondents took away a
message relating to corn syrup and Miller Lite or Coors Light. ECF 168, ¶¶ 46–48.
RESPONSE: Disputed in part. MillerCoors does not dispute Mr. Johnson reported those
numbers from his Packaging Survey but does disputes the validity and reliability of the survey.
(Dkt. 70, Wind Supp. Decl., ¶ 30 (“Finally, Mr. Johnson fails to accurately report the results of
the Johnson Survey. In addition, Mr. Johnson provides no description on how he conducted the
coding procedure of open-ended answers, even though this part of the process represents the crux
of his analysis.”); see also id., ¶ 26 (“In particular, Mr. Johnson’s key questions all use the
phrase “say or suggest” when the standard phrasing for such questions in this setting is “say,
suggest, or imply.”)).
325. The Packaging Survey showed that the Bud Light secondary packaging at issue
primarily conveys a message about what is in Bud Light. ECF 168, ¶¶ 49–50.
RESPONSE: Disputed. The Packaging Survey is not a valid or reliable survey.
The consumer survey failed to test the entirety of the Packaging in its proper market
context and therefore the survey is inconclusive to suggest that Bud Light secondary packaging
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does not convey a significant level of false or misleading information with respect to any other
brands of beer, including Miller Lite and Coors Light. (Dkt. 70, Wind Ex. Report ¶22).
326. The Packaging Survey showed that the Bud Light secondary packaging at issue
does not convey a significant level of false or misleading information with respect to any other
brands of beer, including Miller Lite and Coors Light. ECF 168, ¶ 51.
RESPONSE: Disputed. The Packaging Survey is not a valid or reliable survey.
The consumer survey failed to test the entirety of the Packaging in its proper market
context and therefore the survey is inconclusive to suggest that Bud Light secondary packaging
does not convey a significant level of false or misleading information with respect to any other
brands of beer, including Miller Lite and Coors Light. (Dkt. 70, Wind Ex. Report ¶22)..
327. The Packaging Survey showed that the Bud Light secondary packaging at issue is
not inherently comparative and does not lead light beer consumers to believe that corn syrup is
contained in the final Miller Lite or Coors Light products. ECF 168, ¶¶ 52–53.
RESPONSE: Disputed. The Packaging Survey is not a valid or reliable survey.
The consumer survey failed to test the entirety of the Packaging in its proper market
context and therefore the survey is inconclusive to suggest that Bud Light secondary packaging
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does not convey a significant level of false or misleading information with respect to any other
brands of beer, including Miller Lite and Coors Light. (Dkt. 70, Wind Ex. Report ¶22).
By way of further response, the packaging plays a central role in AB’s multi-touchpoint
marketing strategy. (See Dkt. 70, Wind Supp. Decl., ¶ 4). For example, on March 20, 2019, AB
launched a television commercial chiding Miller Lite for not having an “ingredients” label and
accusing MillerCoors of a lack of transparency. (Dkt. 10, PFF, ¶¶ 65-66; Dkt. 14, Reis Decl., ¶
34, Exh. 25 (emphasis added)). The commercial features the Bud Light King holding a 12-pack
of Bud Light, with the Packaging prominently displayed, as seen below:
The Bud Light King states: “Miller, Miller, Miller … I’ve been made aware of your recent
advertisement. I brought you your shipment of corn syrup, and this is how you repay me? Look,
if you’re set on imitating our kingdom, may I suggest also imitating us by putting an ingredients
label on your packaging? People want to know what ingredients are in their beer! But what do I
know? I’m just the king of a kingdom that doesn’t brew beer with corn syrup.” (Id. (emphasis
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added)). The commercial closes with: “Bud Light, brewed with no Corn Syrup.” (Id.) There can
be no genuine dispute that the Packaging is an integral part of the overall campaign.
328. MillerCoors did not submit a consumer survey using the Bud Light secondary
packaging as a stimulus. ECF 149; ECF 168, ¶ 65; ECF 167, 72:11–13.
RESPONSE: Undisputed, but immaterial.
D. Dr. Wind’s “Materiality” or Preference Survey
329.
330.
331.
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332.
333.
334.
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335.
336.
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337.
338.
RESPONSE:
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339.
340.
341.
342.
343.
344.
345.
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346.
347.
348.
349.
350.
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351.
352.
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353.
354.
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355.
356.
357.
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358.
359.
360.
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361.
362.
363.
364.
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365.
366.
367.
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368.
369.
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370.
371.
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VII. Only Outside Brewing Expert Opines that Corn Syrup is In the Final Products of Miller Lite and Coors Light
372.
373.
374. Dr. White, MillerCoors’s retained outside expert, testified that he was not an
expert brewing. ECF 159, 89:24, 173:5–7.
RESPONSE: Undisputed, but immaterial.
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375. The only independent outside expert who is a brewing chemist is Brett Taubman,
who opines that corn syrup is in the final products of Miller Lite and Coors Light. ECF 164-25.
RESPONSE: Disputed in part. Brett Taubman’s opinion is unreliable and not
scientifically sound. See Dkt. 235 Motion to Exclude Taubman. By way of further response, corn
syrup is not present in the finished products of Miller Lite and Coors Light beers. (Dkt. 13,
Manuele Decl., ¶ 11; Dkt. 12, White Decl., ¶ 5(d); Dkt. 158, Manuele Dep. Tr., at 177:18-21;
Dkt. 143, Manuele Expert Rep., ¶ 20).
Respectfully submitted this 12th day of November, 2019,
/s/ Donald K. Schott Donald K. Schott [email protected] Matthew J. Duchemin [email protected] Anita Marie Boor [email protected] Bryce A. Loken [email protected] QUARLES & BRADY, LLP 33 East Main Street, Suite 900 Madison, WI 53703 (608) 283-2452 Christopher A. Cole [email protected] David Ervin [email protected] CROWELL & MORING LLP 1001 Pennsylvania Avenue NW Washington, D.C. 20004 (202) 624-2701 Holly Melton [email protected] CROWELL & MORING LLP 590 Madison Avenue, 20th Floor New York, NY 10022 (212) 895-4258
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Raija J. Horstman [email protected] CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, CA 90071 (213) 622-4750 Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on November 12, 2019, the foregoing was filed electronically with
the Clerk of the Court and served by operation of the Court’s electronic filing system upon all
counsel of record in this case participating in Electronic Case Filing.
/s/ Donald Schott Donald Schott
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