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1010080

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Jon Leibowitz, Chairman

J. Thomas Rosch

Edith Ramirez

Julie Brill

In the Matter of 

Sigma Corporation,

 a corporation.

Docket No. C-4347

 

DECISION AND ORDER

The Federal Trade Commission (“Commission”) having initiated an investigation of

certain acts and practices of Sigma Corporation (“Sigma”), hereinafter sometimes referred to as

“Respondent,” and Respondent having been furnished thereafter with a copy of a draft

Complaint that counsel for the Commission proposed to present to the Commission for its

consideration and which, if issued, would charge Respondent with violations of Section 5 of the

Federal Trade Commission Act, as amended, 15 U.S.C. § 45; and

Respondent, its attorney, and counsel for the Commission having thereafter executed an

Agreement Containing Consent Order (“Consent Agreement”), containing an admission by

Respondent of all the jurisdictional facts set forth in the aforesaid draft Complaint, a statement

that the signing of said Consent Agreement is for settlement purposes only and does not

constitute an admission by Respondent that the law has been violated as alleged in such

Complaint, or that the facts as alleged in such Complaint, other than jurisdictional facts, are true,

and waivers and other provisions as required by the Commission’s Rules; and

The Commission having thereafter considered the matter and having determined that it

had reason to believe that Respondent has violated said Act, and that a Complaint should issue

stating its charges in that respect, and having accepted the executed Consent Agreement and

placed such Consent Agreement on the public record for a period of thirty (30) days for the

receipt and consideration of public comments, and having duly considered the comment filed

thereafter by an interested person pursuant to Commission Rule 2.34, 16 C.F.R. § 2.34, the

Commission hereby issues its complaint, makes the following jurisdictional findings and issues

the following Order:
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1. Respondent Sigma Corporation is a corporation organized and existing under the laws of

the State of New Jersey, with its principal address at 700 Goldman Drive, Cream Ridge,

New Jersey 08550. 

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding

and of the Respondent, and the proceeding is in the public interest.

ORDER

I.

IT IS ORDERED that, as used in this Order, the following definitions shall apply:

A. “Commission” means the Federal Trade Commission. 

B. “Respondent” means Sigma Corporation, its officers, directors, employees, agents,

attorneys, representatives, successors, and assigns; and the subsidiaries, divisions,

groups, and affiliates controlled by it, and the respective officers, directors, employees,

agents, attorneys, representatives, successors, and assigns of each.

C. “Communicate” means to transfer or disseminate any information, regardless of the

means by which it is accomplished, including without limitation orally, by letter, e-mail,

notice, or memorandum. This definition applies to all tenses and forms of the word

“communicate,” including, but not limited to, “communicating,” “communicated” and

“communication.” 

D. “Competitively Sensitive Information” means any information regarding the cost, price,

output, or customers of or for DIPF marketed by Respondent or any Competitor,

regardless of whether the information is prospective, current or historical, or aggregated

or disaggregated.

 Provided, however, that “Competitively Sensitive Information” shall not include:

(1) information that is a list of prices or other pricing terms that has been widely

Communicated by Respondent to its customers through a letter, electronic

mailing, sales catalog, Web site, or other widely accessible method of posting;

(2) information that relates to the terms on which Respondent will buy DIPF from, or

sell DIPF to, the Person to whom the Competitively Sensitive Information is

Communicated;

(3) information that relates to transactions that occurred at least three (3) years prior

to the date of the Communication of such information; or

(4) information that must be disclosed pursuant to the Federal Securities Laws. 
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E. “Competitor” means any Person that, for the purpose of sale or resale within the United

States: (1) manufactures DIPF; (2) causes DIPF to be manufactured; or (3) imports DIPF.

F. “Designated Manager” means a Regional Manager or the OEM Manager for sales of

DIPF in and into the United States, and any employee performing any job function of a

Regional Manager or the OEM Manager with responsibility for sales of DIPF in or into

the United States.

G. “Ductile Iron Pipe Fittings” or “DIPF” means any iron casting produced in conformity

with the C153/A21 or C110/A21 standards promulgated by the American Water Works

Association, including all revisions and amendments to those standards and any

successor standards incorporating the C153/A21 or C110/A21 standards by reference.

H. “Federal Securities Laws” means the securities laws as that term is defined in §

3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(47), and any

regulation or order of the Securities and Exchange Commission issued under such laws.

I. “Industry Statistics” means statistics derived from Input Data and Communicated by the

Third Party Manager.

J. “Input Data” means the Competitively Sensitive Information Communicated by 

Competitors to the Third Party Manager.

K. “Information Exchange” means the entity Managed by A Third Party Manager that: (1)

Communicates Industry Statistics and (2) includes Respondent and at least one other

Competitor. 

L. “Insider” means a consultant, officer, director, employee, agent, or attorney of

Respondent. Provided, however, that no other Competitor shall be considered to be an

“Insider.” 

M. “Managed by A Third Party Manager” means that a Third Party Manager is solely and

exclusively responsible for all activities relating to Communicating, organizing,

compiling, aggregating, processing, and analyzing any Competitively Sensitive

Information. 

N. “Participate” in an entity or an arrangement means (1) to be a partner, joint venturer,

shareholder, owner, member, or employee of such entity or arrangement, or (2) to

provide services, agree to provide services, or offer to provide services through such

entity or arrangement. This definition applies to all tenses and forms of the word

“participate,” including, but not limited to, “participating,” “participated,” and

“participation.”
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O. “Person” means any natural person or artificial person, including, but not limited to, any

corporation, unincorporated entity, or government. For the purpose of this Order, any

corporation includes the subsidiaries, divisions, groups, and affiliates controlled by it.

P. “Third Party Manager” means a Person that (1) is not a Competitor, and (2) is

responsible for all activities relating to Communicating, organizing, compiling,

aggregating, processing, and analyzing any Competitively Sensitive Information

Communicated or to be Communicated between or among Respondent and any other

Competitor. 

II.

IT IS FURTHER ORDERED that in connection with the business of manufacturing,

marketing or selling DIPF in or affecting commerce, as “commerce” is defined in Section 4 of

the Federal Trade Commission Act, 15 U.S.C. § 44, Respondent shall cease and desist from,

either directly or indirectly, or through any corporate or other device:

A. Entering into, adhering to, Participating in, maintaining, organizing, implementing,

enforcing, or otherwise facilitating any combination, conspiracy, agreement, or

understanding between or among any Competitors:

1. To raise, fix, maintain, or stabilize prices or price levels, or engage in any other

pricing action; or 

2. To allocate or divide markets, customers, contracts, transactions, business

opportunities, lines of commerce, or territories.

Provided, however, that nothing in Paragraph II.A of this Order prohibits Respondent

from entering into an agreement with another Competitor regarding the price of DIPF, if and

only if that agreement relates exclusively to the terms under which Respondent will buy DIPF

from, or sell DIPF to, that other Competitor. 

B. Communicating to any Person who is not an Insider, that Respondent is ready or willing:

1. To raise, fix, maintain, or stabilize price or price levels conditional upon any

other Competitor also raising, fixing, maintaining, or stabilizing price or price

levels; or

2. To forbear from competing for any customer, contract, transaction, or business

opportunity conditional upon any other Competitor also forbearing from

competing for any customer, contract, transaction, or business opportunity.
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C. Entering into, adhering to, Participating in, maintaining, organizing, implementing,

enforcing, or otherwise facilitating any combination, conspiracy, agreement, or

understanding between or among any Competitors to Communicate or exchange

Competitively Sensitive Information.

D. Communicating Competitively Sensitive Information to any other Competitor.

E. Attempting to engage in any of the activities prohibited by Paragraphs II.A, II.B, II.C, or

II.D. 

PROVIDED, HOWEVER, that it shall not of itself constitute a violation of Paragraph

II.B, II.C, OR II.D of this Order for Respondent to Communicate:

(1) Competitively Sensitive Information to a Competitor where such Communication

is reasonably related to a lawful joint venture, license, or potential acquisition,

and is reasonably necessary to achieve the procompetitive benefits of such a

relationship; 

(2) To any Person reasonably believed to be an actual or prospective purchaser of

DIPF, the price and terms of a sale of DIPF; or 

(3) That Respondent is ready and willing to adjust the terms of a sale of DIPF in

response to a Competitor’s offer. 

PROVIDED FURTHER, that it shall not of itself constitute a violation of Paragraphs

II.B, II.C, II.D or II.E of this Order for Respondent to Communicate with or Participate in an

Information Exchange that is limited exclusively to the Communication of Input Data or

Industry Statistics when:

1. Any Input Data relates solely to transactions that are at least six (6) months old;

2. Any Industry Statistic relates solely to transactions that are at least six (6) months

old;

3. Industry Statistics are Communicated no more than one time during any six (6)

month period;

4. Any Industry Statistic represents an aggregation or average of Input Data for

transactions covering a period of at least six (6) months;

5. Any Industry Statistic represents an aggregation or average of Input Data received

from no fewer than five (5) Competitors;
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6. Relating to price, output, or total unit cost, no individual Competitor’s Input Data

to any Industry Statistic represents more than twenty-five (25) percent of the total

reported sales (whether measured on a dollar or unit basis) of the DIPF product

from which the Industry Statistic is derived; 

7. Relating to price, output, or total unit cost, the sum of no three Competitors’ Input

Data to any Industry Statistic represents more than sixty (60) percent of the total

reported sales (whether measured on a dollar or unit basis) of the DIPF product

from which the Industry Statistic is derived;

8. Any Industry Statistic is sufficiently aggregated or anonymous such that no

Competitor that receives that Industry Statistic can, directly or indirectly, identify

the Input Data submitted by any other particular Competitor; 

9. Respondent does not Communicate with any other Competitor relating to the

Information Exchange, other than those Communications (i) occurring at official

meetings of the Information Exchange; (ii) relating to topics identified on a

written agenda prepared in advance of such meetings; and (iii) occurring in the

presence of antitrust counsel; 

10. Respondent retains, for submission to a duly authorized representative of the

Commission upon reasonable notice, a copy of all Input Data Communicated to

the Third Party Manager and all Industry Statistics Communicated by the Third

Party Manager to Respondent; and 

11. All Industry Statistics are, at the same time they are Communicated to any

Competitor, made publicly available. 

III.

IT IS FURTHER ORDERED that Respondent shall:

A. Within sixty (60) days from the date this Order becomes final distribute by first-class

mail, return receipt requested, or by electronic mail with return confirmation, a copy of

this Order with the Complaint, to each of its officers, directors, and Designated

Managers; and

B. For five (5) years from the date this Order becomes final, distribute by first-class mail,

return receipt requested, or by electronic mail with return confirmation, a copy of this

Order with the Complaint, within sixty (60) days, to each Person who becomes its

officer, director, or Designated Manager and who did not previously receive a copy of

this Order and Complaint. 
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C. Require each Person to whom a copy of this Order is furnished pursuant to Paragraphs

III.A and III.B of this Order to sign and submit to Respondent within sixty (60) days of

the receipt thereof a statement that: (1) represents that the undersigned has read and

understands the Order; and (2) acknowledges that the undersigned has been advised and

understands that non-compliance with the Order may subject Respondent to penalties for

violation of the Order. 

IV.

IT IS FURTHER ORDERED that Respondent shall file verified written reports within

ninety (90) days from the date this Order becomes final, annually thereafter for five (5) years on

the anniversary of the date this Order becomes final, and at such other times as the Commission

may by written notice require. Each report shall include, among other information that may be

necessary:

A. A description of any Information Exchange, including a description of (i) the identity of

any Competitors participating in such exchange; (ii) the Competitively Sensitive

Information being exchanged; (iii) the identity of the Third Party Manager and a

description of how the Competitively Sensitive Information has been and is expected to

be Managed by the Third Party Manager; and (iv) the identity of each employee of the

Respondent who received information, directly or indirectly, from the Third Party

Manager;

B. Copies of the signed return receipts or electronic mail with return confirmations required

by Paragraphs III.A, III.B, and III.C of this Order;

C. One copy of each Communication during the relevant reporting period that relates to

changes in Respondent’s published list price or multiplier discounts for sales of DIPF

made in or into the United States when that Communication is to two (2) or more

customers and those changes are simultaneously applicable to two (2) or more customers;

and 

D. A detailed description of the manner and form in which Respondent has complied and is

complying with this Order.

V.

IT IS FURTHER ORDERED that Respondent shall notify the Commission:

A. Of any change in its principal address within twenty (20) days of such change in address;

and

B. At least thirty (30) days prior to any proposed: (1) dissolution of Respondent; (2)

acquisition, merger, or consolidation of Respondent; or (3) any other change in 
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Respondent including, but not limited to, assignment and the creation or dissolution of

subsidiaries, if such change might affect compliance obligations arising out of this Order.

VI.

IT IS FURTHER ORDERED that, for the purpose of determining or securing

compliance with this Order, Respondent shall permit any duly authorized representative of the

Commission:

A. Access, during office hours of Respondent, and in the presence of counsel, to all facilities

and access to inspect and copy all books, ledgers, accounts, correspondence, memoranda,

and all other records and documents in the possession, or under the control, of

Respondent relating to compliance with this Order, which copying services shall be

provided by Respondent at its expense; and 

B. Upon fifteen (15) days notice, and in the presence of counsel, and without restraint or

interference from it, to interview officers, directors, or employees of Respondent. 

VII.

IT IS FURTHER ORDERED that this Order shall terminate on February 27, 2032.

By the Commission.

Donald S. Clark

Secretary

SEAL

ISSUED: February 27, 2012