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. )

)

__________________________________________)

To: The Honorable D. Michael Chappell

Administrative Law Judge

COMPLAINT COUNSEL’S OPPOSITION TO RESPONDENTS’

MOTION FOR LEAVE TO FILE REPLY

Enough is enough. More briefing on this issue is unnecessary at this time and is certainly not fair

rebuttal. Under Rule 3.22(c), the “moving party shall have no right to reply, except as permitted by the

Administrative Law Judge or the Commission.” However, Respondents argue that this Tribunal should

grant thempermissionto file a reply because Complaint Counsel surprised them by supposedly raising new

issues: (i) “the finding of any violationrequires a divestiture” and (ii) “what isrequired of a divested entity.”

(Mot. For Leave ¶ 3). This is not correct. 

To the contrary, on the first point, Respondents’ Motion expressly identified the following issue:

“Should the break-up remedybe imposed ifliabilityisfound insome but not allofthemarkets challenged?”

(Mot. for Directed Verdict 13). Thus, it should not surprise Respondents that Complaint Counsel stated,
-2-

as we did at closing argument, that the law (15 U.S.C. § 21(b)) requires such a divestiture. (Opposition

Mot. 2-7). How can Respondents be surprised by the governing law on the issue they raised?

On the second point, Respondents acknowledged in their Motionthat the matter ofremedy “was

an important part of the trial on liability” and that they had “elicited testimony touching on the issue of

remedy from a dozen witnesses.” (Mot. for Directed Verdict 9). This evidence, which Respondents

acknowledge is uncontradicted (id.), demonstrates that a successful divestiture must be implemented

through a restoration of a competitive entity, including assignment of contracts, restoration of sufficient

personnel, a sufficient revenue base and scale, assets of the former PDM’s EC and Water Divisions and

fabrication facilities, intangible assets including technology and knowhow, customer goodwill and a track

record, and oversight by a monitor trustee. (Opposition Mot. 18-28) . Having elicited this testimony at

trialand having admitted these verypointsinthe closing argument, Respondents cannot now claim to have

been surprised by what the evidence shows on the very issue they presented in their Motion.

Accordingly, Complaint Counsel opposes Respondents Motion for Leave to File a Reply. The

issue ofremedywillsurely be briefed in the post-trial briefs, and Respondents have shown no good cause

for getting another bite at the apple now.

Dated: January 28, 2003 Respectfully submitted,

_____________________________

J. Robert Robertson

Rhett R. Krulla

Steven Wilensky

Cecelia Waldeck

Federal Trade Commission

601 New Jersey Avenue, N.W.
-3-

Washington, D.C. 20580

(202) 326-3669
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. )

__________________________________________)

ORDER

On January 24, 2003, Respondents filed a Motion for Leave to File Reply to Complaint

Counsel’s Opposition to Respondents’ Motion for Directed Verdict on the Issue of Remedy (“Motion

for Leave to Reply”). On January 28, 2003, Complaint Counsel filed an Opposition to Respondents’

Motion for Leave to Reply. Having fully considered Respondents’ Motion and Complaint Counsel’s

Opposition thereto, the Court denies Respondents’ Motion for Leave to Reply. 

IT IS HEREBY ORDERED that Respondents’ motion is denied in its entirety.

ORDERED

____________________________

D. Michael Chappell

Administrative Law Judge

Date: January __, 2003
CERTIFICATE OF SERVICE

I hereby certify that I caused two copies of Complaint Counsel’s Opposition to Respondents’

Motion for Leave to File Reply to be delivered by hand to:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

H-104

600 Pennsylvania Avenue, N.W.

Washington D.C. 20580

Administrative Law Judge

and one copy by facsimile and by first-class mail to:

Jeffrey A. Leon

Duane M. Kelley

Winston & Strawn

35 W. Wacker Drive

Chicago, IL 60601-9703

(312) 558-5600

Counsel for Respondents Chicago Bridge & Iron Company

N.V. and Pitt-Des Moines, Inc.

Dated: January 28, 2003

______________________________

Cecelia Waldeck