                                                                             FILED
                            NOT FOR PUBLICATION                               APR 04 2016

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


STEVEN EDSTROM; et al.,                           No. 14-15337

              Plaintiffs - Appellants,            D.C. No. 3:13-cv-01309-MMC

 v.
                                                  MEMORANDUM*
ANHEUSER-BUSCH INBEV SA/NV; et
al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                Maxine M. Chesney, Senior District Judge, Presiding

                       Argued and Submitted March 15, 2016
                            San Francisco, California

Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.

      Plaintiffs Steven Edstrom and eight other purchasers of beer appeal the

district court’s dismissal of their action under Section 7 of the Clayton Antitrust

Act, seeking to enjoin the acquisition of Grupo Modelo S.A.B. de C.V. (“Modelo”)




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
by Anheuser-Busch Inbev SA/NV (“ABI”) and Constellation Brands, Inc.

(“Constellation”). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      1.     Plaintiffs failed to state a claim that the acquisition of Modelo violates

Section 7 of the Clayton Antitrust Act. See 15 U.S.C. § 18; Fed. R. Civ. P.

12(b)(6). A Section 7 plaintiff “must first establish a prima facie case that a

merger is anticompetitive.” Saint Alphonsus Med. Ctr.-Nampa Inc. v. St. Luke’s

Health Sys., Ltd., 778 F.3d 775, 783 (9th Cir. 2015). To establish a prima facie

case, a Section 7 plaintiff generally must show that the challenged transaction

would increase the concentration of firms in the relevant market. See id. at 785,

788 (citing FTC v. H.J. Heinz Co., 246 F.3d 708, 716 (D.C. Cir. 2001)). Under the

revised terms of the challenged transaction, ABI would purchase Modelo but grant

Constellation an irrevocable, exclusive license to import Modelo brands into the

United States. ABI may not reacquire its right to sell Modelo beer in the United

States for a period of ten years. As a result, the challenged transaction does not

increase ABI’s market share or the concentration of the U.S. beer market.

Therefore, Plaintiffs failed to plausibly allege a prima facie case that the challenged

transaction is anticompetitive. See id.

      Nor have Plaintiffs plausibly alleged that the challenged transaction permits

ABI to control Constellation and thereby increase its market power. Plaintiffs


                                          -2-
assert that ABI will make Constellation its “puppet” by providing Constellation

operational support and supplies while it transitions control of Modelo’s U.S.

operations to Constellation. However, Plaintiffs did not allege how ABI’s

involvement with Constellation during this transition period would allow ABI to

influence Constellation’s prices or engage in any other anticompetitive conduct.

For example, Plaintiffs did not allege how “consulting services in logistical

matters” or “general administrative services” at the Piedras Negras brewery relate

to Constellation’s pricing of Modelo beer in the United States. Nor have Plaintiffs

alleged how the prices ABI charges Constellation for raw materials and beer would

affect the prices of beer Constellation sells to its customers. Without such “further

factual enhancement,” Plaintiffs’ allegations about the anticompetitive effects of

the operational relationship between ABI and Constellation “stop[] short of the line

between possibility and plausibility of entitlement to relief.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007) (alteration and internal quotation marks

omitted).

      Moreover, the transaction agreements render Plaintiffs’ Section 7 claim

implausible. These agreements contain several provisions designed to prevent ABI

from influencing Constellation’s pricing or other competitive decisions. For

example, the Transition Services Agreement (“TSA”) denies ABI the authority to


                                          -3-
“to make any decisions with respect to the operation and expansion of the Piedras

Negras Plant.” The TSA further provides that confidential information “relating to

pricing or sales is competitively sensitive” and requires ABI to implement

procedures to prevent any disclosure of this information to employees “who have

direct responsibility for marketing, distributing or selling [b]eer.” Finally, the TSA

and the Interim Supply Agreement set the prices for the raw materials and beer that

ABI supplies to Constellation. Plaintiffs did not allege that these provisions would

fail to prevent ABI from influencing Constellation’s prices. Therefore, we may not

infer that the transaction agreements would permit ABI to control Constellation.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

      2.     The district court did not err by considering the transaction

agreements in ruling on Defendants’ motion to dismiss. In ruling on a Rule

12(b)(6) motion, a district court may consider “documents whose contents are

alleged in a complaint and whose authenticity no party questions, but which are not

physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.

1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307

F.3d 1119 (9th Cir. 2002). Plaintiffs’ complaint alleged the contents of the

transaction agreements, and no party has questioned their authenticity. Therefore,

the district court was within its discretion to consider the transaction agreements


                                          -4-
without converting Defendants’ Rule 12(b)(6) motion into a motion for summary

judgment. See id.

      3.     The district court did not abuse its discretion by denying leave to

amend the complaint. “Dismissal without leave to amend is proper if it is clear

that the complaint could not be saved by amendment.” Kendall v. Visa U.S.A.,

Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). In addition, “[t]he district court’s

discretion to deny leave to amend is particularly broad where a plaintiff previously

has amended the complaint.” World Wide Rush, LLC v. City of Los Angeles, 606

F.3d 676, 690 (9th Cir. 2010). After two opportunities to amend their complaint,

Plaintiffs failed to identify any additional factual allegations that could save their

complaint from dismissal. Accordingly, the district court’s decision to dismiss

Plaintiffs’ complaint without leave to amend was not an abuse of discretion.

      4.     The district court did not abuse its discretion by denying Plaintiffs’

motion for relief from judgment. Rule 60(b)(3) permits a district court to relieve a

party from a final judgment only if the party “prove[s] by clear and convincing

evidence that the verdict was obtained through fraud, misrepresentation, or other

misconduct.” Jones v. Aero/Chem Corp., 921 F.2d 875, 878–79 (9th Cir. 1990)

(citation omitted); see Fed. R. Civ. P. 60(b)(3). Plaintiffs did not prove by clear

and convincing evidence that Defendants made any misrepresentations to the


                                           -5-
district court. Accordingly, the district court was within its discretion to deny

Plaintiffs’ motion for relief from judgment.

      AFFIRMED.




                                          -6-
