EXHIBIT D
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

FEDERAL TRADE COMMISSION, )

600 Pennsylvania Avenue, N.W. )

Washington, DC 20580, )

)

Plaintiff, )

v. ) Civ. No.

)

CHICAGO BRIDGE & IRON ) COMPLAINT FOR TEMPORARY 

COMPANY N.V., ) RESTRAINING ORDER AND

Polarisavenue 31, 2132 JH Hoofddorp, ) PRELIMINARY INJUNCTION

The Netherlands. ) PURSUANT TO SECTION 13(b)

CHICAGO BRIDGE & IRON ) OF THE FEDERAL TRADE

COMPANY, ) COMMISSION ACT

1501 North Division Street )

Plainfield, IL 60544, )

)

 Defendants. )

)

Plaintiff, the Federal Trade Commission (“FTC” or “Commission”), by its designated

attorneys, petitions the Court, pursuant to Section 13(b) of the Federal Trade Commission Act

(“FTC Act”), 15 U.S.C. § 53(b), for a temporary restraining order and preliminary injunction to

prevent defendants Chicago Bridge & Iron Company N.V., a foreign corporation, and Chicago

Bridge & Iron Company (collectively referred to in this Complaint as “CB&I”), including their

foreign and domestic parents, divisions, subsidiaries, or affiliates, from suspending operations at

their Provo, Utah fabrication facility, or taking any other action that would lead to a dissipation

of the assets or personnel of this facility. The Provo facility was previously owned by Pitt-Des

Moines, Inc. (“PDM”), which CB&I acquired on February 7, 2001. The FTC commenced an

administrative proceeding against CB&I and PDM on October 25, 2001, alleging that this

acquisition may substantially lessen competition or tend to create a monopoly in violation of
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Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section 5 of the FTC Act, 15 U.S.C. § 45. On

June 12, 2003, an Administrative Law Judge (“ALJ”) of the FTC issued a decision holding that

CB&I’s acquisition of PDM violated Section 7 of the Clayton Act and Section 5 of the FTC Act. 

The ALJ also issued an order requiring that CB&I divest various assets CB&I acquired from

PDM, including the Provo facility. Without prior notice to the Commission, CB&I is now in the

process of closing the Provo facility. CB&I’s actions are in direct violation of the order

accompanying the ALJ’s decision and will make it difficult for the Commission to obtain

effective relief if it should ultimately prevail in this litigation. The Commission seeks an order

enjoining CB&I from taking any action that would result in the closure of its Provo fabrication

facility and the dispersal of its employees, and requiring it to take all appropriate measures to

insure the continued competitive viability of that facility pending completion of the ongoing

administrative proceeding and potential appeal to the federal courts. 

Jurisdiction and Venue

1. Jurisdiction is based on Section 13(b) of the FTC Act, 15 U.S.C. § 53(b) and 28

U.S.C. §§ 1337 and 1345. Venue is proper under Section 13(b) of the FTC Act; 28 U.S.C.

§ 1391(b) (c) and (d); and Section 12 of the Clayton Act, 15 U.S.C. § 22.

The Parties

2. The Commission is an administrative agency of the United States Government

established, organized, and existing pursuant to the Federal Trade Commission Act, 15 U.S.C.

§ 41, et seq., with its principal offices at 600 Pennsylvania Avenue, NW, Washington, DC

20580. The Commission is vested with authority and responsibility for enforcing, inter alia,

Section 7 of the Clayton Act and Section 5 of the FTC Act.
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3. Defendant Chicago Bridge & Iron Company N.V. is a foreign corporation

organized and existing under the laws of The Netherlands, with its principal place of business at

Polarisavenue 31, 2132 JH Hoofddorp, The Netherlands.

4. Defendant Chicago Bridge & Iron Company is a corporation organized and

existing under the laws of the Delaware, with its principal place of business at 1501 North

Division Street, Plainfield, Illinois 60544. Defendant Chicago Bridge & Iron Company is a

wholly owned subsidiary of Chicago Bridge & Iron Company N.V.

5. Defendant CB&I is engaged in commerce, as “commerce” is defined in Section 4

of the FTC Act, 15 U.S.C. § 44, and Section 1 of the Clayton Act, 15 U.S.C. § 12.

Section 13(b) of the FTC Act

6. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), provides in pertinent part:

(b) Whenever the Commission has reason to believe -- 

(1) that any person, partnership or corporation is violating, or is about to

violate, any provision of law enforced by the Federal Trade Commission,

and

(2) that the enjoining thereof pending the issuance of a complaint by the

Commission and until such complaint is dismissed by the Commission or

set aside by the court on review, or until the order of the Commission

made thereon has become final, would be in the interest of the public --

the Commission by any of its attorneys designated by it for such purpose

may bring suit in a district court of the United States to enjoin any such

act or practice. Upon a proper showing that, weighing the equities and

considering the Commission's likelihood of ultimate success, such action

would be in the public interest, and after notice to the defendant, a

temporary restraining order or a preliminary injunction may be granted

without bond . . . .

Procedural History
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7. On or about February 7, 2001, CB&I acquired, pursuant to agreement with

PDM, PDM’s Water Division and Engineered Construction Division for approximately

$84 million (“the Acquisition”).

8. On October 25, 2001, the FTC issued an administrative complaint against CB&I

and PDM alleging that the acquisition violated Section 7 of the Clayton Act, 15 U.S.C. § 18,

and Section 5 of the FTC Act, 15 U.S.C. § 45.

9. On June 12, 2003, an ALJ of the FTC issued an Initial Decision that found that

the acquisition violated Section 7 of the Clayton Act and Section 5 of the FTC Act by

substantially lessening competition in LNG tanks, LPG tanks, LIN/LOX tanks, and thermal

vacuum chambers in the U.S. (Exhibit 1). LNG tanks are very large, field-erected tanks used

to store liquefied natural gas ("LNG") at cryogenic (extremely low) temperatures of

approximately -260 F. LIN/LOX tanks are large, field-erected tanks used to store liquid

nitrogen, liquid oxygen and liquid argon at cryogenic temperatures ranging from approximately

-300 F to -320 F. LPG tanks are field-erected tanks that are used to store liquefied petroleum

gas ("LPG") at low temperatures of approximately -50 F. Thermal vacuum chambers are large,

field-erected chambers that are used to simulate the environment of outer space (high vacuum

and extreme variations in temperature) and are used for testing satellites and other aerospace

and defense equipment.

10. The Initial Decision contains an order that requires CB&I to divest certain assets

it acquired from PDM, including the Provo fabrication facility. (Exhibit 2). Paragraph V. of

the ALJ’s Order directs

that from the date that this Order becomes final, until such time as the

divestiture required by Paragraph II.A of this Order is completed, CB&I shall
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take all measures necessary to maintain all assets ordered to be divested in their

accounted for condition and to prevent any further deterioration, except normal

wear and tear, so as to not impair the assets’ operating viability, marketability,

or confidentiality, if applicable.

11. The Initial Decision of the ALJ is now on appeal to the FTC. Oral arguments

were heard by the five commissioners of the FTC on November 12, 2003.

The Threatened Closing of the Provo Facility 

12. The Provo facility was a fabrication plant for PDM’s EC division. It is located

on a 15 acre site with 30,000 square feet of building facilities. The facility fabricates the steel

components utilized in the relevant products and other storage tank projects. The facility

houses state-of-the-art Computer Aided Design and Computer Numerically Controlled

equipment that enables CB&I to efficiently burn, cut and shape steel plate into complex three

dimensional shapes and designs used for the construction of the relevant products and other

storage tank projects. The fabrication facility also includes a paint shop capable of

sophisticated multi-coat paint application and is staffed with trained personnel who have the

experience to maintain the stringent quality control measures necessary to assure proper paint

application. As of July 2000, the facility employed 56 craft workers. Prior to the acquisition,

PDM estimated that a new fabrication facility would cost $9 million and take approximately

nine months to construct.

13. On December 3, 2003, FTC staff received information that CB&I had initiated

the process of suspending operations at the Provo facility. (Exhibit 3).

Likelihood of Success on the Merits and Need for Relief

14. Counsel supporting the FTC’s administrative complaint has a strong likelihood

of ultimate success in demonstrating, in the current administrative proceeding to adjudicate the
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legality of the Acquisition, that the Acquisition would violate Section 7 of the Clayton Act and

Section 5 of the FTC Act. An ALJ has already issued an Initial Decision holding that

acquisition violates these statutes. In particular, counsel supporting the administrative

complaint has a strong likelihood of ultimate success in demonstrating, inter alia, that:

a. The relevant product markets in which the competitive effects of the

Acquisition may be assessed, as the ALJ found, are the manufacture and sale of LNG

tanks, LPG tanks, LIN/LOX tanks, and thermal vacuum chambers.

b. The relevant geographic market within which to assess the competitive

effects of the Acquisition, as the ALJ found, is the United States of America. 

c. The effect of the Acquisition may be substantially to lessen competition

and tend to create a monopoly in the relevant markets, as the ALJ found. Among other

things, the Acquisition eliminated CB&I’s closest competitor, and eliminated or

reduced substantial actual competition between CB&I and PDM, thereby increasing the

likelihood of anticompetitive activity in the relevant markets. 

15. The reestablishment of PDM as an independent viable competitor in the relevant

markets will be adversely impacted if CB&I closes the Provo fabrication facility and its assets

and personnel are dispersed.

16. For the reasons stated above, the granting of a temporary restraining order and

preliminary injunction is in the public interest.

WHEREFORE, the Commission requests that the Court:

1. Issue a temporary order restraining defendant CB&I, and all its affiliates, from

taking any further steps to close the Provo fabrication facility or disperse its assets or

personnel.
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2. Maintain the status quo until the administrative complaint issued by the

Commission is dismissed by the Commission or set aside by a court on review, or until the

order of the Commission made thereon has become final; and

3. Award such other and further relief as the Court may determine to be proper and

just, including costs.
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Respectfully submitted,

William Kovacic J. ROBERT ROBERTSON

General Counsel RHETT R. KRULLA

ELIZABETH PIOTROWSKI

CHUL PAK

Susan Creighton STEVEN L. WILENSKY

Director MEL ORLANS

Bureau of Competition Attorneys

Federal Trade Commission Federal Trade Commission

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, N.W.

Washington, DC 20580 Washington, D.C. 20580

By: 

Attorney for Plaintiff

District of Columbia Bar No.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, D.C. 20580

December __, 2003 (202) 326-2650
CERTIFICATE OF SERVICE

I, Hector Ruiz, hereby certify that on December 4, 2003:

I caused one (1) original and twelve (12) copies of Complaint Counsel’s Emergency

Motion for Authorization to Seek Injunctive Relief to Preserve Provo Fabrication Plant as a Going

Concern Pending Completion of Administrative Litigation to be served upon the following by hand

delivery:

Office of the Secretary

Federal Trade Commission

Room H-159

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

Administrative Law Judge D. Michael Chappell

I also caused copies of Complaint Counsel’s Emergency Motion for Authorization

to Seek Injunctive Relief to Preserve Provo Fabrication Plant as a Going Concern Pending

Completion of Administrative Litigation to be served upon the following person by facsimile and

Federal Express:

Jeffrey Leon, Esq.

Winston & Strawn

35 W. Wacker Drive

Chicago, IL 60601-9703

Fax Number: (312) 558-5700

_______________________

Hector Ruiz

Attorney

Bureau of Competition

Federal Trade Commission