UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMISSION

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) ,~;;\~?;GCEYED DDC'!;L:'¡~:r~'%~ In the Matter of )

)

CHICAGO BRIDGE & IRON COMPAN N.V. )

a foreign corporation, ) Public Version

)

CHICAGO BRIDGE & IRON COMPAN ) Docket No. 9300 a corporation, )

)

PITT-DES MOINES, INC., ) a corporation. )

)

FES 2 'I ?2Jß

RESPONDENTS' MOTION FOR EXTENSION OF IN CAMERA TREATMENT OF

MATERIAL PREVIOUSLY AFFORDED SUCH TREATMENT

Respondents 1 file this Motion for Extension of in camera treatment of material

previously afforded such treatment pursuant to Rule 3.45(b) of the Federal Trade Commission

("Commission" or "FTC") Rules of Practice, 16 C.F.R. § 3.45(b), in accordance with the

Commission's Order Granting in Par and Denying in Par Respondents' Motion for In Camera

Treatment of Material Previously Designated as Confidential, issued Aug. 24, 2005 ("In Camera

Order"). Respondents respectfully request that the Commission extend the six-month in camera

treatment previously granted to Attachment B to Complaint Counsel's Response to Respondents'

Further Briefing on Specific Remedy Issues ("Response"), attached hereto as Exhibit A, for the

duration of two years.

i Respondents Chicago Bridge & Iron Company N.V. and Chicago Bridge & Iron Company are referred to herein

collectively as "Respondents" or "CB&I."
i.

INTRODUCTION

On June 30, 2005, Respondents filed a Motion for In Camera Treatment of Material

Previously Designated as Confidential (the "Motion"). Respondents explained that the materials

at issue contained confidential, sensitive information regarding CB&I's business, the disclosure

of which would substantially har CB&I's current operations.

On August 24, 2005, the Commission issued its In Camera Order. The Commission

granted most of the materials in question two-year in camera protection. However, the

Commission granted Attachment B to the Response only a six-month protection period. The

Commission noted that "(a)t the end of this period, CB&I may move to have the in camera

period extended or, in the absence of such a motion, the material will be unsealed."

Petitioners now move for such an extension. As stated previously, and as demonstrated

by the Declaration of Walter G. Browning, attached hereto as Exhibit B ("Browning

Declaration"), Attachment B to the Response is still highly confidential, and should be treated as

such and remain on fie under seaL.

II.

THE LEGAL STANDAR

Rule 3.45 governs in camera treatment of materials, stating that material shall be "placed

in camera only after finding that its public disclosure would likely result in a clearly defined,

serious injur to the person, parership or corporation requesting in camera treatment." 16

c.F.R. § 3.45(b). The rule also cites the FTC decisions that ariculate the standard for placing

materials in camera. See H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961); see also

General Foods Corp., 95 F.T.C. 352,355 (1980); Bristol-Myers Co., 90 F.T.C. 455, 456 (1977).

According to this authority, applicants for in camera treatment must make a "clear showing that
the information concerned is sufficiently secret and suffciently material to their business that

disclosure would result in serious competitive injur." General Foods Corp., 95 F.T.C. at 355.

Moreover, the Commission has established six factors to consider in determining whether

an in camera applicant has made a suffcient showing: (1) the extent to which the information is

known outside the par's business; (2) the extent to which the information is known by

employees and others involved in the pary's 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 pary and its

competitors; if the information is old, a greater burden is placed on the pary to demonstrate its

value; (5) the amount of effort or money expended by the party in developing the information;

and (6) the ease or diffculty with which the information could be properly acquired or

duplicated by others. Bristol-Myers Co., 90 F.T.C. at 456. In addition, "(t)he loss of business

advantage is a good example ofa 'clearly defined, serious injury.'" Hoechst Marion Roussel, Inc.,

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

III.

THE MATERIAL AT ISSUE, ALREADY GRATED IN CAMERA TREATMENT,

SHOULD BE ACCORDED AN EXTENSION, BECAUSE ITS DISCLOSURE WOULD

RESULT IN SERIOUS COMPETITIVE INJURY

The public disclosure of Attachment B of the Response would damage CB&I's business.

Competitors and ( i privy to (

I would have a

competitive advantage over CB&I. In fact, detailed information of this nature is some of the

most sensitive that CB&I maintains.

Moreover, this information meets the six criteria set forth by the Commission for use in

evaluating the need for in camera treatment. First, this detailed information is not known
publicly outside of CB&I's and PDM's business. See Browning Declaration. Second, within

CB&I's business, this detailed information is known to only a handful of high level executives.

See id. Third, CB&I has taken all precautions to safeguard the confidential natue of this

detailed information, including filing the information in camera. See id. Fourth, this detailed

information is of great value to CB&I and its competitors and (

I, as it represents an (

I See id. Fifth, CB&I expended a significant amount of

money and effort to negotiate Attachment B to the Response. Finally, CB&I would not allow

this detailed information to be obtained by anyone outside of its organization, nor could the

information be duplicated by anyone outside of CB&I. See id. In sum, the public disclosure of

Attachment B to the Response would cause CB&I to lose business advantage because it would

expose (

I to its competitors and (

I, who would otherwise have no way to know the information. See id.

iv.

THE MATERIAL AT ISSUE SHOULD RECEIVE IN CAMERA TREATMENT

FOR A PERIOD OF TWO YEAR

Once it is established that material deserves in camera treatment, the duration of

such treatment must be determined. See 16 C.F.R. § 3.45(b). When in camera treatment is

granted for ordinary business records, as opposed to trade secrets or other sensitive technical
information, it is typically extended for two to five years. See, e.g., In re E.l Du Pont de

Nemours & Co., 97 F.T.C. 116 (Jan. 21, 1981). In its In Camera Order, the Commission granted

most of the materials for which Respondents requested in camera treatment such treatment for

the duration of two years.

WHEREFORE, CB&I respectfully requests that the Commission enter an Order

extending the in camera treatment for Attachment B to the Response for a period of two years.

Dated: February 20, 2006

Cliffor H. Aronson

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SKADDEN, ARs, SLATE, MEAGHER & FLOM LLP

4 Times Square

New York, NY 10036-6522

Telephone No.: 212-735-2644

Facsimile No.: 917-777-2644

Charles W. Schwarz

SKADDEN, ARs, SLATE, MEAGHER & FLOM LLP

1600 Smith, Suite 4400

Houston, TX 77002-7348

Telephone No.: 713-655-5160

Facsimile No.: 888-329-2286

ATTORNYS FOR RESPONDENTS

CHICAGO BRIGE & IRON COMPAN N.V.

AN CHICAGO BRIDGE & IRON COMPAN
CERTIFICATE OF SERVICE

I, Sara L. Bensley, hereby certify that on February 21, 2006, true and correct

copies of the foregoing Respondents' Motion for Extension of In Camera Treatment of Material

Previously Afforded Such Treatment were served as follows:

One original and twelve copies served by hand delivery upon:

Donald S. Clark

Secretary

Federal Trade Commission

Room H-159

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

One copy served by hand delivery upon each of:

Bureau of Competition

Federal Trade Commission

601 New Jersey Avenue, N.W.

Room NJ-6120

Washington, D.C. 20001

Steven L. Wilensky, Esq.

Federal Trade Commission

601 New Jersey Avenue, N.W.

Room NJ-6120

Washington, D.C. 20001
EXHIBIT A
MATERIAL REDACTED PURSUANT TO

SECTIONS 6(1) AND 21(c) OF THE FEDERAL

TRADE COMMISSION ACT
EXHIBIT B
UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMISSION

)

In the Matter of )

)

CHICAGO BRIDGE & IRON COMPAN N.V. )

a foreign corporation, ) Public Version

)

CHICAGO BRIDGE & IRON COMPAN ) Docket No. 9300 a corporation, )

)

PITT-DES MOINES, INC., ) a corporation. )

)

DECLARTION OF WALTER G. BROWNING

1. I am the Secretary of Chicago Bridge & Iron Company N.V. and the

Vice-President, General Counsel and Secretary of Chicago Bridge & Iron Company

(collectively, "CB&I").

2. On Aug. 24, 2005, the Commission issued its Order Granting in Par

and Denying in Par Respondents' Motion for In Camera Treatment of Material

Previously Designated as Confidential ("In Camera Order"), granting six-month in

camera treatment to Attachment B to Complaint Counsel's Response to Respondents'

Further Briefing on Specific Remedy Issues ("Response"). The Commission noted that at

the end of this period, CB&I may move to have the in camera period extended.

3. Attachment B to the Response is CB&I's and PDM's Post-Closing

Risk Allocation Agreement (the "Agreement"). CB&I views the details of the

Agreement as confidential and sensitive business information, the release or publication

of which would substantially harm CB&I's business.
4. To CB&I's knowledge, the details of the Agreement are not known

publicly outside of CB&I's and PDM's business.

5. Only a small number of high level executives at CB&I are privy to

the details of the Agreement.

6. CB&I has taken, and continues to take, all due precautions to

safeguard the confidential nature of the details of the Agreement.

7. The details of the Agreement are of great value to CB&I because it

concerns an (

8. CB&I expended a significant amount of money and effort to

negotiate the details of the Agreement.

9. The details of the Agreement are the type of information that canot

be duplicated outside of CB&I and which CB&I will not allow anyone outside of its

business to obtain.

10. CB&I is paricularly concerned that release of the details of the

Agreement would disadvantage CB&I in relation to its competitors and (

I because such release would give those entities inside

information concerning (

2
J when such entities would otherwse have no way to know the

information.

I declare under penalty of perjur under the laws of the United States of America

that the foregoing is tre and correct.

Executed on ~)' \0

~

Walter G. Brownng

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