1400 L Street, N.W.
Washington, D.C. 20005
(202) 371-5700 (voice)
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nsulaima@winston.com

Counsel for Respondents
Chicago Bridge & Iron Company N.V.
and Pitt Des-Moines, Inc.



IN CAMERA

EXHIBIT

:
e OB
;



UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

PITT-DES-MOINES, INC.,

a corporation.

)
In the Matter of )
)
CHICAGO BRIDGE & IRON COMPANY N.V., )
)
a foreign corporation, )
)
CHICAGO BRIDGE & IRON COMPANY, )
)

a corporation, ) Docket No. 9300
)
and )
)
)
)
)
)

PROPOSED ORDER GRANTING RESPONDENTS' MOTION FOR IN CAMERA
TREATMENT OF CERTAIN TRIAL TESTIMONY

Pursuant to Commission Rule 3.45(b), Respondents (“CB&I”) have filed a motion
for in camera treatment of certain trial testimony given in this proceeding. I hereby order in
camera treatment for the testimony appearing at Trial Tr. 4221-4225 (Vol. 17, Part 2) for a

period of three (3) years.

ORDERED: a
D. Michael Chappell
Administrative Law Judge

Date: » 2002


CERTIFICATE OF SERVICE
I, Lance Lange, hereby certify that on this 20th day of December, 2002, I served a
true and correct copy of Respondents’ Motion for Jn camera Treatment of Certain Trial

Testimony, by hand delivery upon:

The Honorable D. Michael Chappell
Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580

(two copies)

Secretary of the Commission
Federal Trade Commission

600 Pennsylvania Avenue, N.W.
Room H-159

Washington, D.C. 20580

and by fax and hand delivery upon:

Rhett Krulla

Acting Assistant Director
Bureau of Competition

Federal Trade Commission

600 Pennsylvania Avenue, N.W.
Room S-3602

Washington, D.C. 20580

Steven L. Wilensky

Federal Trade Commission

601 Pennsylvania Avenue, N.W.
Room S-3618

Washington, D.C. 20580

+ Zany Zong

Lance Lange

1139210.2



4, Further, CB&I is concemed that the disclosure of confidential strategic
information, such as pricing and other competitive strategy, would provide competitors and
customers with insight into CB&I's business practices that must be kept highly confidential in

order to maintain the competitiveness of the bid process.

5. The views I expressed are not known outside of CB&I, and constitute
highly confidential executive level strategic information. I typically reserve such statements for
high-level strategic meetings and documents, and would not casually express these views even
within the company.

6. CB&I has spent considerable money remaining competitively strong and
pursuing LNG projects.

7. CB&I's competitors have no way of knowing that CB&I's views are those

I expressed on December 16, 2002 in this proceeding.
I declare under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct.

Executed on _/ a if tf[0Z

Gerald M. Glenn‘



UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.,
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY,

a corporation, Docket No. 9300
and PUBLIC RECORD

PITT-DES-MOINES, INC.,

a corporation.

eee SS He SS SSeS OS SY

RESPONDENTS' MOTION FOR IN CAMERA TREATMENT OF CERTAIN TRIAL
TESTIMO!

Respondents (“CB&I”) respectfully request that the Commission enter a
protective order directing in camera treatment for certain trial testimony containing confidential
and sensitive information given in this proceeding, pursuant to Rule 3.45(b) of the Federal Trade
Commission Rules of Practice, 16 C.F.R. § 3.45(b).

1. The testimony that is the subject of this motion, namely Trial TR, 4224-
4225 (attached hereto as Exhibit B), is testimony given by Gerald Glenn, the CEO of CB&I,
regarding his views of the competitive strengths of CB&I's competitors. This testimony
constitutes a corporate view that is, for reasons set forth below, extremely sensitive and
potentially damaging to CB&I's business. Furthermore, Mr. Glenn gave testimony regarding

CB&I's subsequent pricing strategy, which is also highly confidential and sensitive information.


UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of }
CHICAGO BRIDGE & IRON COMPANY N.V., ;
a foreign corporation, }
CHICAGO BRIDGE & IRON COMPANY, }
a corporation, } Docket No. 9300

and }
PITT-DES-MOINES, INC., }
a corporation. }

)
AFFIDAVIT OF GERALD M. GLENN

1. Iam Chairman, President and Chief Executive Officer of Chicago Bridge

& Iron (CB&d).

2. On December 16, 2002, I gave sworm testimony in this proceeding
regarding my views of the strengths of CB&I's competitors, as well as testimony regarding
CB&I's pricing strategy.

3. This testimony contained highly confidential and sensitive information
which would cause a competitive injury to CB&I if on the public record. CB&I is very
concerned about competition in the LNG market, and is concerned that it will lose business if it
appears to customers that CB&I believes its competitors are better in the LNG market. CB&I is

concerned that this would damage CB&I's reputation and ability to win future jobs in LNG.

EXHIBIT

AL



Glenn is of the type reserved only for high-level strategic meetings and documents, and would
not be casually expressed within the company.

9. CB&I has spent considerable money keeping competitive and pursuing
LNG projects.

10. | CB&I's competitors have no way of knowing that CB&I's views are those
expressed by Mr. Glenn on December 16, 2002 in this proceeding.

11. This motion is supported by the affidavit of Gerald Glenn, CEO of

Chicago Bridge & Iron, attached hereto as Exhibit A.

WHEREFORE, CB&I respectfully requests that the Commission enter an Order granting in
camera treatment of the trial testimony of Gerald Glenn at Trial Tr. 4221-4225, and all testimony
on cross-examination and redirect examination that references this testimony or clicits similar

testimony, for a period of three (3) years.

Dated: December 20, 2002 Respectfully submitted,

Lope A
Duane M. Kelley
Jeffrey A. Leon
Greg J. Miarecki
Lance Lange
Winston & Strawn
35 W. Wacker Drive
Chicago, IL 60601-9703
(312) 558-5600 (voice)
(312) 558-5700 (fax)
dkelley@winston.com
jleon@winston.com
gmiareck@winston.com
Nada Sulaiman
Winston & Strawn



4. Once the determination has been made that a document will receive in
camera treatment, the duration of the in camera treatment must be determined. 16 C.F.R. §
3.45(b).

5. On December 16, 2002, CB&I CEO gave testimony indicating CB&I's
views of its competitors in terms of these competitors’ ability to compete in the LNG market.
Further, Mr. Glenn made statements regarding the reputations of these competitors. Specifically,
Mr. Glenn noted that he did not view certain competitors as "fringe" competitors, and noted the
particular competitive strengths of certain competitors. Mr. Glenn then stated CB&l's
subsequent pricing strategy.

6. There are two scenarios under which this testimony could damage CB&I's
business. First, the competitors about whom Mr. Glenn testified will, in essence, be able to
advertise using Mr. Glenn's testimony. CB&I is very concemed about competition in the LNG
market, and would undoubtedly lose business if it appeared that CB&I believed its competitors
were better in the LNG market. Second, customers themselves, if given public access to Mr.
Glenn's testimony, may interpret this testimony as an indication that CB&I is not particularly
capable in the construction of LNG projects and that its competitors are more capable. This
would damage CB&l's reputation and ability to win future jobs in LNG.

7. Further, the disclosure of confidential strategic information, such as
pricing strategy, would provide competitors and customers with insight into CB&I's pricing
practices that, particularly in the blind-bid market CB&I participates in, must be kept highly
confidential to maintain the competitiveness of the bid process.

8. The views expressed by Mr. Glenn are not known outside of CB&I, and

constitute highly confidential executive level strategic information. The testimony given by Mr.



2. Rule 3.45 governs in camera treatment of materials, stating that materials
shall be “placed in camera only after finding that its public disclosure will likely result in a
clearly defined, serious injury to the person, partnership or corporation requesting in camera
treatment.” 16 C.F.R. § 3.45(b). The rule also designates three representative cases that are to
be utilized by administrative law judges when ruling on motions for in camera treatment. See
General Foods Corp., 95 F.T.C. 352, 355 (1980); Bristol-Meyers Co., 90 F.T.C. 455, 456
(1977); H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). According to this authority,
applicants for in camera treatment must make a “clear showing that the information concerned is
sufficiently secret and sufficiently material to their business that disclosure would result in
serious competitive injury.” General Foods Corp., 95 F.T.C. at 355.

3. The Commission has established six factors to consider in determining
whether in camera treatment is appropriate: (1) the extent to which the information is known
outside of the party's business; (2) the extent to which the information is known by employees
and others involved in the business; (3) the extent of measures taken by the party to guard the
secrecy of the information; (4) the value of the information to the party and to its competitors; if
the information is old, a greater burden is placed on the party to demonstrate its value; (5) the
amount of effort or money expended by the party in developing the information; and (6) the ease
or difficulty with which the information could be properly acquired or duplicated by others.
Bristol-Meyers Co., 90 F.T.C. at 456. In addition, “[t]he likely loss of business advantages is a
good example of a ‘clearly defined, serious injury.”” Hoechst Marion Russel, Inc., 2000 F.T.C.

LEXIS 138 at *6 (2000) (citing General Foods, 95 F.T.C. at 355).