UNITED STATES DISTRICT COURT FOR THE WESTERN ......1 DCACTIVE-51906573 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN MILLERCOORS, LLC, Plaintiff, v. ANHEUSER-BUSCH

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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Case: 3:19-cv-00218-wmc Document #: 246 Filed: 11/15/19 Page 1 of 161

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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.



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.


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.





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.






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,






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,






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.






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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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.






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.



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.






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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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.


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



(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).

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.


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



(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).



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.


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.



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.



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.


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.


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.



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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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.


48. In Special Delivery, the Bud Light King states, “We don’t brew Bud Light with

corn syrup.” ECF 40-32, p. 4.


49. In Special Delivery, a member of the King’s court says, “Miller Lite uses corn

syrup.” ECF 40-32, p. 4.


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.


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.




53. The member goes on to say, “Try the Coors Light castle. They also use corn

syrup.” ECF 40-32, p. 4.


54. In Special Delivery, the King says, “Oh brewers of Coors Light, is this corn syrup

yours?” ECF 40-32, p. 4.


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.


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.


57. Special Delivery does not reference “high fructose corn syrup” or “HFCS.”

ECF 40-32.


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



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.


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.


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.


63. Mountain Folk does not reference “high fructose corn syrup” or “HFCS.” ECF

40-36.





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

Redacted



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).



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).





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



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).

Redacted



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.


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.





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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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.

Redacted



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

Redacted



Redacted



81. No Bud Light billboard makes reference to “high fructose corn syrup” or

“HFCS.” ECF 86, ¶ 81.



context.

Disputed in part.

Redacted

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83. No Bud Light billboard makes reference to corn syrup being “in” Miller Lite or

Coors Light. ECF 86, ¶ 81.


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.


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.






Disputed.

. Mr. Marino’s testimony accurately summarizes a complex

brewing process in which yeast consumes corn syrup.

Redacted

Redacted



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.






Disputed.

Mr. Marino’s testimony accurately summarizes a complex


Redacted

Redacted

Redacted



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.


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.



Redacted






Disputed.

. Mr. Marino’s testimony accurately summarizes a complex


Redacted

Redacted



Redacted



Redacted



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.


Redacted

Redacted



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.


97. Peter J. Coors is knowledgeable about the brewing process. ECF 158, 12:22–24;


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.

Redacted

Redacted

Redacted

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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

Redacted



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.


104. Mr. DeCou is an experienced brewmaster who is knowledgeable about

MillerCoors’s beers. ECF 158, 11:17–12:2; see also


term “knowledgeable” can have multiple meanings.

Redacted

Redacted



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. By way of further response,

Redacted

Redacted

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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.

Redacted

Redacted

Redacted

Redacted



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.

Redacted

Redacted

Redacted

Redacted



Redacted




132. The non-sugars in corn syrup are not fermentable. ECF 159, 79:19–80:14;

Redacted

Redacted




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;


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.



Redacted

Redacted





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).



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

Redacted



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.

Redacted

Redacted



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)).

Redacted



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



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.


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

Redacted



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



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).

Redacted

Redacted

Redacted



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


39 (Reis Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second




Redacted

Redacted





(Dkt. 117, Reis Dep. Tr., at 203:2-17).

Redacted



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

Redacted

Redacted



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






117, Reis Dep. Tr., at 203:2-17).

Redacted

Redacted

Redacted



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;



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;



implies MillerCoors has not suffered any damage from AB’s false and misleading Campaign.

Redacted

Redacted

Redacted



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.










(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.



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





Redacted




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.




Campaign. Coors Light’s global brand volume decreased 7.0% during the first quarter of 2019


(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Coors Light’s global brand volume




117, Reis Dep. Tr., at 203:2-17).

Redacted

Redacted

Redacted



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.















(Dkt. 117, Reis Dep. Tr., at 203:2-17).

Redacted

Redacted



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.















Redacted



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.


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



brand volume decreased 0.7% during the first quarter of 2019 because, while its segment share


39 (Reis Exhibit 36)). Coors Light’s global brand volume decreased 7.3% during the second






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














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.






(11/12/2019 Boor Decl., Ex. 17, at 39 (Reis Exhibit 36)). Coors Light’s global brand volume




117, Reis Dep. Tr., at 203:2-17). Redacted



Redacted



Redacted



Redacted



Redacted



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

Redacted




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



43 (Reis Exhibit 29)). Miller Lite’s global brand volume decreased 1.2% during the second


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



Redacted



, Reis Dep. Tr., at 144:24-145:2). Reports of the damages expert are due on

January 3, 2020.

V. MillerCoors’s Unclean Hands

Redacted

Redacted



Redacted



.

Redacted



Redacted



Pete Marino, MillerCoors’s Chief Public Affairs and

Communications Officer. ECF 160, 7:16–18.


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.


193. This statement was published during the Super Bowl and was repeated in the Wall

Street Journal. Harrison Dec., Exs. 22–23.


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.


196. The “Ingredients” column for Arnold Palmer Spiked Half & Half on

MillerCoors’s “Brand Nutritional Data” webpage is blank. ECF 40-3, p. 1.


198. On February 8, 2019, Mr. Marino gave an interview with Cheddar, an on-line

program, about the Super Bowl. ECF 40-23.


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.


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,

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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;






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.



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.

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255.

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261.

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264.

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268.

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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.


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.


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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.


284. The Mountain Folk Survey included a question about high fructose corn syrup

(QF8). ECF 15-8, Appendix H-11.


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.


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.


132 DCACTIVE-51906573



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.





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.





133 DCACTIVE-51906573


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.





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.





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.



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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.





100:1-14; Dkt. 149, Wind Expert Rep., 34).

B. Special Delivery Survey

294.

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299.

300.

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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.


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.


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.


311. The Johnson Packaging Survey respondents were screened, and quality control

and security measures were used. ECF 168, ¶¶ 18–27.


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.


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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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.


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.


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.


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.


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.



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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.


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.






of his analysis.”); see also id., ¶ 26 (“In particular, Mr. Johnson’s key questions all use the


142 DCACTIVE-51906573

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.






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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143 DCACTIVE-51906573

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


brands of beer, including Miller Lite and Coors Light. ECF 168, ¶ 51.





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.




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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


145 DCACTIVE-51906573

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.


D. Dr. Wind’s “Materiality” or Preference Survey

329.

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337.

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RESPONSE:

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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.


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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


161 DCACTIVE-51906573

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


Documents

UNITED STATES DISTRICT COURT FOR THE WESTERN ......1 DCACTIVE-51906573 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN MILLERCOORS, LLC, Plaintiff, v. ANHEUSER-BUSCH