storage tanks and facilities, LPG storage tanks, LIN/LOX/LAR storage tanks, and thermal
vacuum chambers, including the characteristics and.uses of these products, the lack of
substitute products for these products, competition in the design and construction of these
products in the U.S., the inability of foreign constructors of these products to compete
economically in the U.S., the importance of reputation and experience for firms constructing
these products, and entry barriers into these products.

19. Patricia Outtrim, President, Project Technical Liason Associates, Inc.

Project Technical Liason Associates, Inc. is a consulting firm that specializes in
working on LNG projects. Mrs. Outtrim will testify about the subjects discussed in her
deposition. She will also testify regarding LNG storage tanks and facilities, including but not
limited to, the characteristics and uses of LNG storage tanks and facilities, the lack of
substitute products for LNG storage tanks and facilities, competition in the design and
construction of LNG storage tanks and facilities in the U.S., selection of a supplier of LNG
storage tanks and facilities, and the potential anticompetitive effects of CB&I’s acquisition of
PDM. :

20. Greg Proulx, Manager, Boeing Satellite Systems, Inc.

The Boeing Company is one of the world’s leading manufacturers of aircraft and
satellites. Mr. Proulx is responsible for procuring, constructing and monitoring equipment used
for testing satellites. Mr. Proulx will testify about the subjects contained in his affidavit and
deposition. Mr Proulx will also testify to characteristics and uses of thermal vacuum chambers,
the lack of substitute products for thermal vacuum chambers, the importance of experience and
reputation for firms supplying thermal vacuum chambers, competition between CB&I and PDM
for a thermal vacuum chamber project for Boeing, and the potential anticompetitive effects of
CB&I’s acquisition of PDM.

21. Michael Patterson, M.G. Industries, Inc.

M.G. Industries .is a supplier of industrial gases. Mr. Patterson is responsible for
purchasing LIN/LOX tanks for M.G. Indusiries. Mr. Patterson will testify about the subjects
contained in his deposition. Mr. Patterson will also testify about competition in the market for
LIN/LOX tanks, factors relevant to the selection of a LIN/LOX supplier, and his experiences
relating to a LIN/LOX project recently completed by CB&I.

22.: Michael Poli, Contracts Manager for Global Procurement and Materials
Management, Praxair, Inc. :

Praxair, Inc. is one of the world’s largest suppliers of industrial gases and a former

owner of Chicago Bridge Company, N.V. Mr. Poli is in charge of procuring LIN/LOX tanks
and hydrogen and helium spheres for Praxair. Mr. Poli will testify regarding LIN/LOX tanks

6-


UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

MERGERS [1

STEVEN WILENSKY
ATTORNEY

Direct Dial
202-326-2650 i

Septenyber 16, 2002

Jeff Leon, Esq.
Winston & Strawn |
35 W..Wacker Drive
Chicago, IL 60601-9703
Re: Chicago Bridge & Iron Co. N.V., et. al., Docket 9300
Dear Jeff:
Enclosed please find Complaint Counsel’s Final Proposed Witness List and Complaint

Counsel’s Final Proposed Exhibit List, and a copy of all final proposed exibits. Complaint
Counsel designates these as “Confidential” pursuant to 4 2(a) of the March 5, 2002 protective

order.
Sincerely, hi

Steven L. Wilensky

cc: The Honorable D. Michael Chappell (without exibits)


tank market. Mr. Vetal will testify to his interest, prior to February 7, 2002, in acquiring the
EC Division of PDM.

Respectfully submitted, -

STEVEN L. SKY
CECELIA WALDECK
MICHAEL A. FRANCHAK
HECTOR RUIZ
ERIC SPRAGUE
APRIL TABOR
COMMISSION COUNSEL

; Federal Trade Commission
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580

(202) 326-2650
September 16, 2002

-10-


company’s apparent failed bid to supply LNG tanks to Dynegy, which occurred after he
provided his voluntary declarations.
i.
Good cause is demonstrated if a party seeking to extend a deadline demonstrates that
a deadline cannot reasonably be met despite the diligence of the party seeking the extension.

Bradford v. Dana Corp., 249 F.3d 807, 809 (8" Cir. 2001); Sosa v. Airprint Systems, Inc.,

133 F.3d 1417, 1418 (11" Cir. 1998). Complaint Counsel did not seek issuance of subpoenas
to Mr. Jolly or his employer Technigaz prior to the close of discovery for two primary
reasons. First, significant obstacles exist for obtaining foreign discovery, particularly in
France.” Due to these obstacles relating to the service of compulsory process in France,
Complaint Counsel obtained information from Mr. Jolly and his company only on a voluntary
basis.

Second, each side had interviewed Mr. Jolly, and he voluntarily provided each party

with a declaration that memorialized those discussions. Because neither party could compel

? France has limited its participation in the Hague Convention on Taking of Evidence
Abroad in Civil or Commercial Matters, 23 U.S.T. 2555, T.LA.S. No. 7444 (Mar. 18, 1970),
codified at 28 U.S.C. § 1781, which provides for the transmittal of Commission subpoenas
through letters rogatory. France has taken reservations under Article 23 of the Hague Convention
providing that they will not execute letters of request issued for the purpose of obtaining pre-trial
discovery as knowh in Common Law countries. Declarations and Designations by Member
States Under the Hague Evidence Convention, France at A-88-90. Additionally, France has
enacted a blocking statute that can limit or prohibit subpoenaed parties from producing evidence
in connection with a foreign legal proceeding. Law Relating to the Communications of
Economic, Commercial, Industrial, Financial, or Technical, Documents or Information to
Foreign Natural or Legal Persons, Law No. 80-530, (1980) Journal Officiel, reprinted in 1 Bruno
Ristau, International Judicial Assistance Civil and Commercial (1990 Revision), §5-1-4, citing,
n.10 at C1-80.

5.


Morris, Lendais, Hollrah & Snowden
a Professional Corporation

Attorneys at Law
1980 Post Oak Bivd., Suite 700
Houston, Texas 77056

FACSIMILE TRANSMITTAL

TO: Cecilia Waldeck

COMPANY: FEDERAL TRADE COMMISSION

FAX: 12023262071
FROM: Dolores Ramirez

FAX: 713-966-7225

VOICE: 713-966-7222
RE: Our File #; 0157-012
MESSAGE:
DATE: Tuesday, Dec 3, 2002 01:42PM
PAGES: 2 (Including this transmittal page)

If you have any problems receiving this facsimile transmission, piease contact us
immediately at (713) 966-7200

CONFIDENTIALITY NOTE

The information contained in this facsimile document may include legally privileged and
confidential information intended only for the person to whom this transmittal is expressly
directed as indicated above. If you are the recipient of this document and yau are not the
person to whom this transmittal is expressly directed, you are requested to notify us
immediately of your receipt of this message and to mail the document to us at 1980 Past
Oak Blvd., Suite 700, Houston, Texas, 77056. You are hereby notifed that any
dissemination, distribution or copying of this document is strictly prohibited. Thank you
for your cooperation.



and hydrogen and helium spheres, including the characteristics and uses of these products, the
lack of substitute products for these storage vessels, competition in the design and construction
of these products in the U.S., the importance of reputation and experience for firms

constructing these products, and the potential anticompetitive effects of CB&I’s acquisition of
PDM. .

23. Brian Price, Vice President of LNG Technology, Black & Veatch Pritchard, Inc.

Black & Veatch Pritchard, Inc. is one of the largest engineering and construction firms
in the U.S. Mr Price was involved in a bid for an LNG peak shaving facility that Black &
Veatch made jointly with a foreign constructor of LNG tanks.. Mr Price will testify generally
regarding the subjects contained in his affidavit. Mr. Price will testify regarding LNG storage
tanks and facilities, including but not limited to, the characteristics and uses of LNG storage
tanks and facilities, the lack of substitute products for LNG storage tanks and facilities,
competition in the design and construction of LNG storage tanks and facilities in the U.S.,
selection of a supplier of LNG storage tanks and facilities, and the potential anticompetitive
effects of CB&I’s acquisition of PDM. :

24. Bill Puckett, Vice President, Dynegy Corporation by deposition

Dynegy Corporation is a diversified energy company located in Houston, Texas. Mr.
Puckett has management responsibility for an LNG import facility that Dynegy may build in
Hackberry, Louisiana. Mr. Puckett will testify generally regarding LNG storage tanks and
facilities. Mr. Puckett will testify about competition in bidding for LNG tanks and in bidding
for overall turn-key management of the project.

25. Errol Rapp, Project Director, Bechtel Overseas Inc. by deposition

“Bechtel Group is one of the world’s largest engineering and construction firms. Mr.
Rapp is Project Director for the Atlantic LNG export facility, located in Point Fortrin,
Trinidad and Tobago. Mr. Rapp will testify generally regarding the subjects contained in his
affidavit and deposition. In addition, Mr. Rapp will testify regarding LNG storage tanks and
facilities, including but not limited to, competition in the design and construction of LNG
storage tanks and facilities in the U.S. and factors affecting selection of a supplier of LNG
storage tanks and facilities. Mr Rapp will also testify as to problems associated with Whessoe
International’s construction of the original LNG tanks at the facility.

26. Ronald Skully, XL Technology Systems, Inc.
Ronald Skully is President of XL Technology Systems, Inc. XL Technology Systems,
Inc. provides thermal control systems for thermal vacuum chambers. Mr. Skully will testify

about the subjects contained in his deposition. Mr. Skully will also testify to CB&I’s purchase
and sale of XL Technology Systems, the differences between field-erected and shop-

-7-


jveve Wiiensky COMPANY.

+ WINSTON & STRAWN
Steven L. Wilensky, Esq.
October 8, 2002

Page 2

© We plan to call the following third-party witnesses live, subject to their availability: Rich

+ Byers; Nigel Carling; Jim Crider, Volker Eyermann; and Larry Izzo.

® With respect to Scott Colby, currently listed as one of your rebuttal witnesses, we plan ta
elicit our affirmative testimony from him immediately after we cross-examine him during
your rebuttal case. Should you decide uot to call Mr. Colby, we may call him live during
our case-in-chief,

Please contact me if you have any questions in this regard.

GJM:

(CH 106383.2


REBUTTAL WITNESSES
31. Scott Colby, BOC Group, Inc.

BOC is one of the largest suppliers of industrial gases in the U.S. Mr. Colby was project
manager for a LIN/LOX project constructed by American Tank & Vessel, Inc. for BOC in North

Carolina. Mr. Colby will testify as to experiences in using American Tank & Vessel, Inc. for this
project.

32. Moon Fahel, Zachry Construction Corp.

Zachry Construction Corp. is a major U.S. construction firm that has partnered with SN
Technigaz, a French company experienced in the construction of LNG tanks and facilities, to
construct LNG facilities in the U.S. Mr. Fahel is an engineer who has responsibilities for LNG |
projects on behialf of Zachry. Mr. Fahel will testify about the subject contained in his deposition. :
Mr. Fahel will testify to entry barriers inl the LNG storage tank and facilities markets and to

competitive disadvantages that Zachry may experience in competing against CB&I for U.S. LNG '
projects.

33. Devon Hart, Raytheon,Inc. . + by deposition

Raytheon is one of the largest defense contractors in the U.S. Mr. Hart was responsible
for purchasing a shop-built thermal vacuum chamber for Raytheon. Mr. Hart will testify about
the subjects contained in his deposition. Mr. Hart will testify regarding the project, including
factors Raytheon considered in choosing a constructor of the project.

34. Sam Kumar, Consultant to SN Technigaz

Mr. Kumar is a consultant to SN Technigaz for potential LNG projects in the U.S. Mr.
Kumar formerly worked for both CB&I and PDM. Mr. Kumar will testify about the subject
contained in his deposition. Mr. Kumar will also testify to entry barriers in the LNG storage tank
and facilities markets and to competitive disadvantages that SN Technigaz may experience in
competing against CB&I for U.S. LNG projects.
35. Dr. John Simpson, Ph.D.

Dr. Simpson is a staff economist with the Bureau of Economics at the Federal Trade
Commission. Dr. Simpson will provide rebuttal testimony about the product market,
geographic market, level of concentration, efficiencies or lack thereof, and anticompetitive
effects of the acquisition in each of the relevant markets.

36. Brad Vetal, President, Matrix Services Company by deposition

Matrix Services Company is the second largest competitor in the U.S. industrial storage

-9-


10. Kent Higgins, President, Process Systems Division, Chart Industries, Inc. :

Chart Industries, Inc. is a diversified manufacturer of equipment for various cryogenic
systems, including shop-manufactured cryogenic tanks. Prior to CB&I’s acquisition of PDM,
Chart provided thermal control systems for thermal vacuum chambers in partnership with
PDM. Mr. Higgins will testify regarding thermal vacuum chambers. Mr Higgins will testify
to the differences between field-erected and shop-manufactured thermal vacuum chambers, the
lack of substitute products for thermal vacuum chambers, factors affecting selection of a
supplier of thermal vacuum chambers, competition in the design and construction of thermal
vacuum chambers in the U.S., and the potential anticompetitive effects of CB&I’s acquisition
of PDM. Mr. Higgins will also testify to differences between field-érected and shop-
manufactured cryogenic tanks.

11. Joseph Hilgar, Purchasing Manager, Air Products and Chemicals, Incby deposition

Air Products & Chemicals, Inc. is an international supplier of industrial gases,
including liquid oxygen, nitrogen, hydrogen, and argon, and related equipment. Mr. Hilgar
has held several positions relating to the procurement of LIN/LOX storage tanks and facilities.
Mr. Hilgar will testify regarding the subjects contained in his affidavit and deposition and to
other issues relating to LIN/LOX tanks. Mr. Hilgar will testify about difficulties faced by
foreign LIN/LOX tank constructors in attempting to compete for projects in the U.S., the
importance of reputation and experience for firms constructing LIN/LOX storage tanks, and
the potential anticompetitive effects of CB&I’s acquisition of PDM.

12. Jean-Pierre Jolly, Vice President of Marketing for SN Technigaz by affidavit

Jean Pierre Jolly, a resident of France, is Vice President of Marketing for SN
Technigaz, a French company with experience in constructing LNG tanks and facilities outside
of the U.S. Mr. Jolly will testify about the subjects contained in his affidavit, including
disadvantages that Technigaz may experience in trying to compete against CB&I on LNG
projects in the U.S.

13. David Kamrath, CEO, Air Liquide Process and Construction, Inc.

Air Liquide is one of the world’s largest suppliers of industrial gases. Mr. Kamrath is
currently CEO of Air Liquide Process and Construction, Inc. Mr. Kamrath will testify about
the subjects contained in his deposition. Mr. Kamrath will also testify about competition in the
market for LIN/LOX tanks, factors relevant to the selection of a LIN/LOX supplier, and Air
Liquide’s current plans relating to LIN/LOX tank projects.

14. Dr. Hans Kistenmacher, Senior Vice President, Linde Process Plant, Inc.

Linde is one of the largest industrial gas suppliers in the world. Linde Process Plant

4.


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.

SSS SS SS SH SH HE HH YH EL

ORDER
UPON CONSIDERATION of Complaint Counsel’s Motion for Leave to Depose Mr.
Jean-Pierre Jolly for his deposition testimony filed on December 9, 2002, and any opposition
thereto, and being fully advised in the premises, Complaint Counsel has satisfied the
requirements of Rule 3.34 of the FTC Rules of Practice.
IT IS HEREBY ORDERED that Complaint Counsel’s motion is GRANTED and that

Complaint Counsel be given leave to issue a subpoena to Mr. Jean-Pierre Jolly.

ORDERED:

D. Michael Chappell
Administrative Law Judge

-10-


ATTACHMENT 6 -


teve Wilensky COMPANY

Steven L. Wilensky, Esq.
October 18, 2002
Page 2

Third, with respect to paragraph 3, we are still reviewing the Scheman exhibits
you have asked us to waive objections on, and will get back to you with our decision.

Fourth, with respect to paragraph 4, we agree to the use of Mr. Jolly’s affidavit
only because both sides had ample opportunity to interview Mr. Jolly and each side received an
affidavit from the affiant, thereby arguably comporting with Rule 3.43(b). We under no
circumstances agree to your use of the other affidavits for any purpose. .

Very tly yours,
JefSty A. Leon

JAL‘pn

Enclosures

(CAE:1110982.1



estimated costs for LNG tank projects is a material issue that will likely be addressed by Mr.
Jolly at trial. Without the opportunity to depose Mr. Jolly on these subjects prior to his trial
testimony, Complaint Counsel will be unduly prejudiced at trial because it will not be able to
prepare its examination relating to these pricing and cost issues.

Iv.

The opportunity to depose Mr. Jolly prior to his trial testimony will likely benefit the
court proceedings during Mr. Jolly’s appearance. By conducting a discovery deposition prior
to trial, Complaint Counsel can more readily develop a concise cross examination of Mr.
Jolly at trial and can limit any direct examination that it may decide to present while Mr. Jolly
is available.’ Additionally, advance knowledge of the issues that will be discussed at trial
will permit Complaint Counsel to identify with Mr. Hollrah and Mr. Jolly the portions of the
testimony for which Mr. Jolly may seek in camera treatment. Finally, the deposition may
expedite Mr. Jolly’s trial testimony by giving Complaint Counsel the opportunity to

determine if the services of a translator are necessary.

5 Both parties reserved the right to conduct direct examination of any of the individuals
named on the opposing parties’ witness list.

-T-


Mr. Jolly’s trial testimony,’ the parties agreed to use those declarations as testimony. See
supra at 3- 4. Now that Respondents have obtained an agreement by Mr. Jolly to appear
voluntarily at trial for Respondents, Complaint Counsel wishes to use the discovery tools
available to it to learn of any information Mr. Jolly possesses that is relevant to this matter
and that is not otherwise known to it. With leave of this Court, Complaint Counsel will be
able to avail itself of a discovery deposition, as Mr. Jolly will become subject to service of
process under FTC Rule 3.34 once he enters the United States to testify at this hearing.*
I.

Complaint Counsel will be unduly prejudiced if it does not have the opportunity to
depose Mr. Jolly prior to his trial testimony. Mr. Jolly’s sudden reluctance to cooperate with
Complaint Counsel suggests that recent developments, occurring after August 22, 2002, may
have affected Mr. Jolly’s position with respect to this litigation. One of these developments
is Technigaz’s apparent loss of Dynegy’s LNG tank project. Without the opportunity to
depose Mr. Jolly about these recent developments, Complaint Counsel will be unduly
prejudiced at trial.

In addition, during the past telephone discussions with Mr. Jolly, he was reluctant to
provide Complaint Counsel with specific information about Technigaz’s bids on U.S. LNG
tank projects. Because Respondents argue that competition from Technigaz replaces the
competition lost from CB&I’s acquisition of PDM, information on Technigaz’s pricing and

3 Respondents’ counsel in his opening statement confirmed that Mr. Jolly is not subject to
the service power of subpoena in this proceeding. Tr. at 123.

4 Mr. Hollrah informed us that Mr. Jolly will be traveling to Washington D.C. from Asia.
Attachment 6.

-6-



builds turnkey processing plants, such as natural gas and air separation plants, on a global
basis. Dr. Kistenmacher was involved in an unsuccessful bid for an LNG peak shaving plant
that Linde made in conjunction with a foreign LNG tank supplier in 1994. Dr. Kistenmacher
will testify regarding the subjects contained in his affidavit and deposition. Dr. Kistenmacher
will testify regarding LNG storage tanks and facilities, including but not limited to, the
characteristics and uses of LNG storage tanks and facilities, the lack of substitute products for
LNG storage tanks and facilities, competition in the design and construction of LNG storage
tanks and facilities in the U.S., selection of a supplier of LNG storage tanks and facilities, and
the potential anticompetitive effects of CB&I’s acquisition of PDM.

15. Zoher Meratla, CDS Research Ltd. by affidavit

Zoher Meratla, a resident of Canada, is a principal at CDS Research Ltd., a consulting
firm in Vancouver, British Columbia, Canada, that provides engineering services relating to
liquid natural gas (“LNG”) and liquid petroleum gas (“LPG”) facilities on a world-wide basis.
Mr. Meratla will testify about the subjects contained in his affidavit, including his experiences in
advising Fairbanks Natural Gas LLC on an LNG project.

16. Barry Millet, Fluor Corporation

Fluor Corporation is one of the largest engineering and construction firms located in the
U.S. Mr. Millet was involved in the construction of an LPG import facility for Sea-3, Inc. in
Tampa, Florida. Mr. Millet will testify about the subjects contained in his deposition. Mr.
Millet will testify about the characteristics and uses of LPG tanks, the lack of substitute
products for LPG tanks, difficulties faced by foreign LPG tank constructors trying to compete
in the U.S., the importance of reputation and experience for firms constructing LPG storage
tanks, and the potential anticompetitive effects of CB&I’s acquisition of PDM.

17. Patrick Neary, Technical Manager, TRW Space and Electronics

TRW sells advanced technology products, including satellites, for the aerospace,
electronics, communications and informations systems markets. Mr. Neary is Technical
Manager at TRW’s satellite manufacturing facility. Mr. Neary will testify about the subjects
contained in his affidavit and deposition. Mr. Neary will testify regarding the characteristics and
uses of thermal vacuum chambers, the lack of substitute products for thermal vacuum chambers,
the importance of experience and reputation for firms supplying thermal vacuum chambers, and
the potential anticompetitive effects of CB&I’s acquisition of PDM

18. John Newmeister, Vice President, Matrix Services Company
Matrix Services Company is the second largest competitor in the U.S. industrial storage

tank market. Mr. Newmeister will testify regarding the subjects contained in his
investigational hearing and deposition. Mr. Newmeister will also testify regarding LNG

-5-


CERTIFICATE OF SERVICE

I, Cecelia Waldeck, hereby certify that I caused a copy of Complaint Counsel’s to be
delivered this day by facsimile and by first-class mail to:

Honorable D. Michael Chappell
Administrative Law Judge

600 Pennsylvania Avenue, N.W.
Room H-104

Washington, D.C. 20580

Jeffrey A. Leon, Esquire
Duane M. Kelley
Winston & Strawn

35 W. Wacker Drive
Chicago, IL 60601-9703

Cecelia tate ck
Cecelia Waldeck 79)
Complaint Counsel

Dated: December 9, 2002

-9-


ATTACHMENT 3


A OE Cong

‘A WON
Jo Sevomomens D \

UNITED STATES OF AMERICA

BEC 9 - 2002.
BEFORE FEDERAL TRADE COMMISSION -

oa, SECRETARY

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.

SSE HU HEHEHE

COMPLAINT COUNSEL'S
MOTION FOR LEAVE TO DEPOSE
MR. JEAN-PIERRE JOLLY FOR GOOD CAUSE

Pursuant to Rule 3.22 of the Federal Trade Commission’s Rules of Practice (“FTC
Rules”), 16 C-F.R. § 3.22, Complaint Counsel seeks leave to issue a subpoena for a
deposition of Mr. Jean-Pierre Jolly (“Mr. Jolly’) on December 17, 2002, after he arrives in
the United States. Mr. Jolly is an employee of Societe Nouvelle Technigaz S.A.
(“Technigaz”) and lives in France.' Complaint Counsel could not have served a subpoena for
a deposition prior to Mr. Jolly’s arrival in the United States because it did not have a good

faith belief that a discovery request pursuant to a subpoena issued by this tribunal could be

‘Mr. Jolly is represented by Mr. David Hollrah, Esquire, of Morris, Lendais, Hollrah &
Snowden in Houston, Texas.


WINSTON & STRAWN

38 WEST WACKER ORIVE 1400 L STREET, NW.
CHICAGO, ILLINOIS 80801-9703 WASHINGTON, D.C. 20005-2502
43 RUE OU RHONE
1204 GENEVA, SWITZESLAND (202) 371-5700
444 SOUTH FLOWER STREET FACSIMILE (202) 371-5922
OS ANGELES, CALIFORNIA 90071-2911 FACSIMILE (202) 371-5950
www.winston.com

VRITER'S DIRECT DIAL NUMBER.

202-371-585 +
nsulaim@winston.com

June 7, 2002

BY HAND DELIVERY
Steven L. Wilensky, Esq.
Federal Trade Commission

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

Washington, D.C. 20580

200 PARK AVENUE
NEW YORK, NEW YORK 10166-4193

21 AVENUE VICTOR HUGO
78116 PARIS, FRANCE

CONFIDENTIAL

Re: In the Matter of Chicago Bridge & Iron Company, N.V., et al.

Docket No. 9300

Dear Steve:

We intend to include Mr. Jean-Pierre Jolly on our witness list to the extent of
presenting his testimony through the enclosed declaration, which he signed voluntarily.

Sincerely, 7.

NSS:tdd

Enclosure

ec: Duane Kelley, Esq.
Jeffrey Leon, Esq.
Gregory Miarecki, Esq.


ATTACHMENT 1


UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION.
WASHINGTON, D.C, 20580

Bureau of Competition

November 26, 2002

Mr. David C. Hollrah, Esq.

Morris, Lendais, Hollrah & Snowden
1980 Post Oak Blvd., Suite 700
Houston, TX 77056

By FAX: (713) 966-7229
Re: Chicago Bridge & Iron, Docket 9300

Dear Mr. Holirah:

We would like to talk with you and Mr. Jolly of Technigaz regarding his upcoming
testimony in the subject litigation. Mr. Jolly is on our witness list and we plan to ask him
questions about Technigaz’s activity in the U.S. Per our past conversation, I understand that
Technigaz is concerned about the disclosure of its confidential business information on the
public record. We need to identify any confidential information that we may elicit from Mr.
Jolly at trial in advance of his appearance. Judge Chappell has requested third parties to file a
motion for in camera treatment of trial testimony in advance of the scheduled appearance of the
witness.

We can assist you in filing this motion. I can be reached at (202) 326-3669 or via e-mail at
cwaldes OV.

Very truly yours,

Crtelin Waloteck

Cecelia Waldeck

cc: Morris Bloom


ATTACHMENT 5 .



Conclusion

For the reasons stated herein, Complaint Counsel has demonstrated good cause to

seek leave to issue a subpoena for the deposition testimony of Jean-Pierre Jolly.

December 9, 2002

By:

Respectfully submitted,

Morris Bloom

Cecelia Waldeck

Commission Counsel

Federal Trade Commission
601 New Jersey Avenue, N.W.
Washington, D.C. 20580

Dz LL —

Morris Bloom

Attorney for Plaintiff

Federal Trade Commission
601 New Jersey Avenue, N.W.
Washington, D.C. 20580
(202) 326-2707



manufactured thermal vacuum chambers, the lack of substitute products for thermal vacuum
chambers, factors affecting selection of a supplier of thermal vacuum chambers, and competition
in the design and construction of thermal vacuum chambers in the U.S.

27. |W. David Thompson, President, Spectrum Astro, Inc.

Spectrum Astro, Inc. is a manufacturer of low cost, high performance satellites.
Spectrum Astro has recently contracted with CB&I to build a thermal vacuum chamber. Mr.
Thompson will testify regarding the subjects contained in his affidavit and deposition. Mr
Thompson will also testify to characteristics and uses of thermal vacuum chambers, the lack of
substitute products for thermal vacuum chambers, factors affecting selection of a supplier of

thermal vacuum chambers, and competition between CB&I and PDM in the bidding for
Spectrum Astro’s thermal vacuum chamber.

28. Douglas Thorneycroft, Engineer, Westcoast Energy

Mr. Thorneycroft is an engineer for Westcoast Energy, a large Canadian natural gas
pipeline company. Mr. Thorneycroft was project manager for an LNG peak shaving facility
that Westcoast proposed to build in Port Mellon, British Columbia. CB&I, PDM, and two
foreign companies submitted bids for the LNG tank for the project. Mr Thorneycraft will.
testify to issues regarding this project, including but not limited to the identity of the bidders
and to the level of.their bids.

29. Amy Warren, Contract Management, Fluor Corporation

Fluor Corporation is one of the largest engineering and construction firms located in the
U.S. Ms. Warren was involved in the construction of an LPG import facility for Sea-3, Inc. in
Tampa, Florida. Ms. Warren will testify about the subjects contained in her deposition. Ms.
Warren will testify about the characteristics and uses of LPG tanks, the lack of substitute
products for LPG tanks, difficulties faced by foreign LPG tank constructors trying to compete
in the U.S., the importance of reputation and experience for firms constructing LPG storage
tanks, and the potential anticompetitive effects of CB&I’s acquisition of PDM.

EXPERT WITNESS
30. Dr. John Simpson, Ph.D.

Dr. Simpson is a staff economist with the Bureau of Economics at the Federal Trade
Commission. Dr. Simpson will testify about the product market, geographic market, level of
concentration, efficiencies or lack thereof, and anticompetitive effects of the acquisition in each
of the relevant markets.


ATTACHMENT 4


opportunity to interview Mr. Jolly and each side received an affidavit from the affiant ....”
Letter from Greg Miarecki to Steven Wilensky, dated October 8, 2002 (‘Attachment 3");
Letter from Jeffrey Leon to Steven Wilensky, dated October 18, 2002 (‘Attachment 4").
Based on these discussions, the parties stipulated that the declarations would be entered into
evidence without objection. See JX 3 (stipulating into evidence RX 202 and RX 738,
declarations.of Mr. Jolly obtained by Respondents and Complaint Counsel, respectively).

, However, in their Opening Statement on November 12, 2002, over two months after
the close of discovery, Respondents’ counsel stated that they “expect” to call Mr. Jolly
“hopefully” the week before Christmas. Tr. at 123:15-124:2. This appears to be the first
time Respondents mentioned that Mr. Jolly may appear live as a witness in their defense case.
It was mentioned only as a possibility in opening statements, and it was mentioned only after
the parties stipulated to the entry into evidence of Mr. Jolly’s declarations. On December 6,
three months after the close of discovery, Respondents finally notified Complaint Counsel
that Mr. Jolly, an employee of one of CB&I’s biggest competitors outside the U.S., would
voluntarily testify on behalf of Respondents on December 18.

Shortly after learning that Mr. Jolly may appear as a witness, Complaint Counsel
requested an opportunity to interview Mr. Jolly prior to his possible trial appearance. Letter
to David Hollrah from Cecelia Waldeck, dated November 26, 2002 (“Attachment 5"). This
request was denied. Letter to Cecelia Waldeck from David Hollrah, dated December 3, 2002
(“Attachment 6"). Because Complaint Counsel has not been afforded the opportunity to
speak with Mr. Jolly since August 22, 2002, it has been unable to discover the contours of

Mr. Jolly’s knowledge relating to the topics about which he may testify, including his

4.


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.

Vere eve ve veverve verve eS SY

COMPLAINT COUNSEL'S FINAL PROPOSED WITNESS LIST

Pursuant to the Third Revised Scheduling Order of September 10, 2002, Complaint
Counsel hereby designates those persons whom we currently contemplate calling to testify as
witnesses, by deposition or through live testimony, at the hearing in this matter. Unless
specifically noted, we intend to call witnesses to testify live. We reserve the right to call any
witness to testify by deposition in lieu of live testimony, and we reserve the right not to call
any of the persons listed herein to testify at the hearing, as circumstances may warrant. We
Teserve the right to call any of the individuals named on Respondents’ Revised Witness List of
June 3, 2000. We have also entered into evidence designated portions of testimony from
investigational hearings and depositions of party and third party witnesses, which may be

found on Complaint Counsel’s Exhibit List.



5. Kerry Errington, Project Manager, Black & Veatch Pritchard, Inc.

Black & Veatch Pritchard, Inc. is one of the largest engineering and construction firms
located in the U.S. Mr. Errington managed a project which employed American Tank &
Vessel, Inc. (“ATV”) for the construction of three field-erected pressure spheres. Mr.
Errington will testify regarding ATV’s performance on this project.

6. Chung Fan, Purchasing Agent, Linde Process Plant, Inc.

Linde is one of the world’s largest suppliers of industrial gases. Mr. Fan in
responsible for purchasing LIN/LOX tanks for Linde in the U.S. Mr. Fan will te: stify about
the subjects contained in his deposition. Mr. Fan will also testify about competition in the
market for LIN/LOX tanks, factors relevant to the selection of a LIN/LOX supplier, and the
potential anticompetitive effects of CB&I’s acquisition of PDM

7 Cleve Fontenot, Vice President! of Supply Management (retired), Air Liquide
Process & Construction, Inc.

Air Liquide is one of the world’s largest suppliers of industrial gases. Mr. Fontenot
was formerly responsible for procurement of LIN/LOX tanks at Air Liquide. Mr. Fontenot
will testify about the subjects contained in his affidavit and deposition. Mr. Fontenot will
testify about the characteristics and uses of LIN/LOX tanks, the lack of substitute products for
LIN/LOX tanks, the historical lack of foreign competition in the design and construction of
LIN/LOX tanks in the U.S., the importance of experience and reputation in choosing a
supplier of LIN/LOX tanks, and the potential anticompetitive effects of CB&I’s acquisition of
PDM. :

8. John Gill, Owner, Howard Fabrication, Inc.

Howard Fabrication, Inc. is a smal] manufacturer of shop-built industrial storage tanks
and thermal vacuum chambers. Mr. Gill will testify about the subjects contained in his affidavit
and deposition. Mr. Gill will testify to the differences between field-erected and shop-
manufactured thermal vacuum chambers, the importance of experience and reputation for firms
supplying thermal vacuum chambers, entry barriers in the thermal vacuum chamber market, and
the potential anticompetitive effects of CB&I’s acquisition of PDM.

9. James Clay Hall, Memphis Light, Gas & Water Division

Memphis Light, Gas & Water Division is a municipal utility serving the Memphis,
Tennessee area. Mr. Hall is a senior engineer at Memphis Light, Gas & Water Division and
was project manager for an LNG peak shaver that the company constructed in 1995. Mr. Hall
will testify about subjects relating to the bidding of that project.


notified Complaint Counsel that they “intend to include Mr. Jean-Pierre Jolly on our witness
list to the extent of presenting his testimony through the enclosed declaration, which he
signed voluntarily.” Letter to Steve Wilensky from Nada Sulaiman, June 7, 2002, emphasis
added (“Attachment 1").

Complaint Counsel also realized that it could not satisfy the requirements of FTC
Rule 3.36(b) of the Commission’s Rules of Practice regarding the applications for subpoenas
to be served in France, see Complaint Counsel’s Response to Respondents’ Motion for
Foreign Discovery Pursuant to Rule 3.36, dated April 17, 2002, and therefore proceeded
voluntarily to obtain information from Mr. Jolly. On August 22, 2002, Mr. Jolly provided
Complaint Counsel with a declaration that clarified and explained many of the topics covered
in the earlier declaration obtained by Respondents, CX 15, RX 738, and Complaint Counsel
added him to its witness list to testify by declaration. See Complaint Counsel’s Final Witness
List, dated September 19, 2002 (“Attachment 2"). Since that time, Complaint Counsel has
had no further contacts with Mr. Jolly.

At the time of the close of discovery, it appeared that both parties would present the
evidence obtained from Mr. Jolly through their respective declarations. Both parties appear
to have had equal opportunity to secure information from Mr. Jolly on a voluntary basis, and
neither party could compel discovery from him as long as he was outside the United States
and voluntarily cooperating by executing declarations for both parties. In a series of
correspondences in October 2002, over one month after the close of discovery, Respondents
repeated their intention to call Mr. Jolly by his declaration and agreed that Complaint

Counsel could use the declaration it obtained from Mr. Jolly “because both sides had ample

-3-


neve Wilensky COMPANY

: WINSTON & STRAWN
roe cuypue 35 WEST WACKER DRIVE, (21 AVENUE VICTOR HUGG:

CHICAGO, ILLINOIS 60607-6703 75118 PARIS, FRANCE

446 9OUTH FLOWER STREET
mA creer 1312) 568.5608 1402 L STREET, Nw
A065 ANGELES, CALIFArIA BOO71-2011 (12) WASHINGTON, D.C. 20005-3502

200 PABK AVENUE
NEW VEU, NeW YORX 10968-6109, FACOUSLE (212) 356-8700

wrens inston.com
WAITER'S DIREOT DIAL NUMBER

312-558-7545
prmvareck@winstan.com

October 8, 2002
Vis FACSIMILE

Steven L. Wilensky, Esq.

Mergers Ul ~ Federal Trade Commission
Bureau of Competition

601 Pennsylvania Ave., N.W.

Room 3618

Washington, D.C. 20580

Re: Jn the Matter of Chicago Bridge & Iron Company, N.V., et al.
Docket No. 9300

Dear Steve:

‘As promised, I write to provide additional information regarding our current
intentions with respect to third-party trial wimesses named in the above-referenced matter:

« We intend to call the following third-party wimesses by deposition: Marc Andrukiewicz;
Rob Bryngelson; W.T. Cutts; Joseph Hilgar; John Kelly; Norman Kelley; Victor Kelley;
William Puckett; Errol Rapp; Jeffrey Sawchuck; Peter Scheman, Jerry Stetzler; Matt

Swift; Brad Vetal; and Robert Yowell. Further, we pian to call Jean-Pierre Jolly by
affidavit. .

« We understand that you plan to call, mtey alia, the following third-party wimesses live
during your case-in-chief: Robert Davis; Moon Fahei; Chung Fan; David Kamrath; Hans
Kistenmachers; John Newmeister, Patricia Onttrim; Michael Patterson; and Ron Scully.
As you will note, these individuals are also on our witness list. We plan to elicit our
affirmative testimony from them inornediately after we cross-cxamine them during your
case-in-chicf. Should you decide not to call any of these wimesses, we will read in
testimony from their depositions during our case-in-chief.


served on Mr. Jolly or on his company in France. See FTC Rule 3.36(b)(4); see also infra
note 2.

During discovery and throughout the period preceding trial, Respondents have
represented that they intended to call Mr. Jolly by affidavit. However, on November 12,
2002, Respondents informed this tribunal that they expect to call Mr. Jolly, who has now
volunteered to testify on behalf of Respondents. See Trial Transcript (“Tr.”) at 123:15-124:2.
On December 6, 2002, Respondents informed Complaint Counsel that they intend to call Mr.
Jolly as a live witness on December 18, 2002. Although this discovery request is past the
September 6, 2002 discovery cut-off, these representations by Respondents are the first that
we have learned that Mr. Jolly will be in the United States and hence, subject to service of a
subpoena while he is here. Therefore, for good cause, we seek leave to issue a subpoena for
Mr. Jolly’s deposition. Mr. Jolly and his counsel have refused to speak with us voluntarily.
Without the opportunity to depose Mr. Jolly about relevant issues relating to this proceeding
prior to his testifying at trial, Complaint Counsel will be unfairly prejudiced at trial. We have
notified Respondents of our intent to file this motion.

L

During the discovery phase of this proceeding this Court rejected Respondents’
application for foreign discovery, noting that they had not made the requisite showing that
such discovery could issue in a foreign jurisdiction. See Order Denying Respondents’
Motion for Issuance of Subpoena, dated April 18, 2002. Thereafter, Respondents proceeded
voluntarily to obtain information from Mr. Jolly in France. On June 4, 2002, Mr. Jolly

voluntarily executed a declaration for Respondents (DX 202). On June 7, 2002, Respondents

-2-


Morris, LENDAIS, HoLLRAH & SNOWDEN

a Professional Corporation
‘el: 713-966-7200 Attomeys at Law ‘Tour Framatome - Cedex 16
fax: 713-966-7225 1980 Post Oak Boulevard, Suite 700 22084 Fai La Defense
2 33.1.47 96 63.00
Houston, Texas 77056 Fax: 33.1.47 96 63 63

December 3, 2002
Cecilia Waldeck, Esq. VIA FAX (202) 326-2071
FEDERAL TRADE COMMISSION
Bureau of Competition
601 N.J. Avenue, NW
Washington DC

Re: Chicago Bridge & Iron Docket 9300
Dear Ms. Waldeck:

I have spoken to Jean Pierre Jolly of Technigaz about your request to have further time with
him on the telephone. He is unwilling to take any more time with FTC on this matter, he mentioned
that he had spent more than 4 % hours on the telephone with the FTC on the two prior occasions that
agency lawyers spoke to him. I concur in his opinion that such time should have been adequate. .

It is my understanding that Mr. Jolly will be in Asia until he come to Washington for his
testimony later this month.
Many thanks for your understanding.

Very truly yours,

Qeid Hg

DH/de

\Ml2w2kpra\Prolaw\ProlawV\documents\3002.wpd


eve wilensky COMPANY

WINSTON & STRAWN

36 WEST WACKER DRIVE. 2) AVENUE VICTOR HUGS:
CHICAGO, ILUNOHS 60601-9703 ‘T5118 PARIS, FRANCS
(312) $88-se00 soe L ETAEET, Nw

WASHINGTON. D.c. 2051

FACSIMILE (312) 5535700

200 ARIE AVENUE
MEW YORK NEWYORK 1mice4190

ewes wriraton.com
JEFFREY A. LEON
(372) S86-S285,
een @winsten.com
October 18, 2002
VIA FACSIMILE
Steven L. Wilensky, Esq.
Mergers If
Federal Trade Cormmission
Bureau of Competition
601 Pennsylvania Ave., N.W.
Room 3618
Washington, D.C. 20580
Re: To the of Chicago Bridge & fron Company N.V.. et al.
Docket No. 9300

Dear Steve:

We are in receipt of your Stipulation delivered October 15. We have the
following observations:

First, with respect to paragraph 1 (the use of depositions pursuant to FTC Rule of
Practice 3.33), the parties, by exchange of your letter to me on October 6 and our response on
October 7 (attached hereto), agreed that the testimony of Messrs. Rapp, Puckett, Hilgar, Cutts,
Hart and Vetal may be presented at trial by deposition. By letter of October 8 {attached hereto),
CBI then proposed to present testimony of several more witnesses by way of deposition.
Paragraph 1 of your Stipulation covers several, but not all, of those who are covered by our
previous agreement, and adds one witness, Mr. Scheman, who was part of our proposal to you.
We presume therefore that you now have agreed to the use of Mr. Scheman’s deposition. Since
you apparently do not agree to our use of depositions of Messrs. John Kelly, Norman Kelley,
Victor Kelley, Jeffrey Sawchuck, Jerry Stetzler, Matt Swift and Robert Yowell, we will promptly
make an appropriate motion pursuant to Rule 3,33 in order to present their testimony by way of
deposition.

Second, with respect to paragraph 2 of your Stipulation, we do not at this time
agree to waive any objections to testimony offered by way of deposition, or deposition exhibits
thereto. ,


ATTACHMENT 2


CASE-IN-CHIEF
1. Eckhard Blaumueller, Director (retired), Peoples Energy Corporation

Peoples Energy Corporation is an energy and utility company located in Chicago,
Illinois. Mr. Blaumueller was involved in the consideration of a cryogenic processing facility
designed to separate refinery gas into its components, a variant of which would have included
LNG storage tanks. Mr. Blaumueller will testify regarding the subjects contained in his
affidavit and deposition. In addition, Mr. Blaumueller will testify regarding LNG storage
tanks and facilities, including but not limited to, the importance of experience and reputation
for firms constructing LNG storage tanks and facilities, and the potential anticompetitive
effects of Chicago Bridge & Iron Company N.V.’s (“CB&I”) acquisition of Pitt-Des Moines,
Inc. (“PDM’).

2. Dan Britten, President, Fairbanks Natural Gas, LLC

Fairbanks Natural Gas provides natural gas to the Fairbanks, Alaska area. Fairbanks
Natural Gas is currently considering constructing an LNG tank to enlarge its service capacity.
Mr. Britten will testify about the subjects contained in his deposition. He will also testify
regarding the company’s experiences in trying to locate a constructor of the LNG tank.

3. William T. Cutts, Vice President, American Tank & Vessel, Inc. by deposition

American Tank & Vessel is a small tank constructor located in Mobile, Alabama. Mr.
Cutts will testify about competition and entry barriers in LNG tanks and facilities and
LIN/LOX tanks.

4. Robert Davis, General Manager, Air Products & Chemicals, Inc.

Air Products & Chemicals, Inc. is an international supplier of industrial gases and
related equipment and technology, including LNG liquefaction units used in LNG peak shaving
plants. Mr. Davis formerly worked with CB&I and has experience in the construction of LNG
tanks and peak shaving plants. Mr. Davis will testify regarding the subjects contained in his
affidavit and deposition. In addition, Mr. Davis will testify regarding LNG storage tanks and
LNG peak shaving plants, including competition in the design and construction of LNG storage
tanks and LNG peak shaving plants in the U.S., selection of a supplier of LNG storage tanks
and LNG peak shaving plants, entry barriers into LNG tanks and LNG peak shaving plants,
and the potential anticompetitive effects of CB&I’s acquisition of PDM. Mr. Davis will also
testify about competition in the bidding for LNG tanks as a component of LNG peak shaving
plants and in the bidding for LNG peak shaving plants overall.