UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

 

)

In the Matter of )

) 

CHICAGO BRIDGE & IRON COMPANY, N.V., ) Public Version

a foreign corporation, )

)

CHICAGO BRIDGE & IRON COMPANY, ) Docket No. 9300

a corporation, and )

)

PITT-DES MOINES, INC., )

a corporation. )

 )

To: Commission

PETITION FOR RECONSIDERATION TO CLARIFY 

RESPONDENTS’ OBLIGATIONS AS TO THE PITT-DES MOINES AND CB&I

CORPORATE NAMES

Pursuant to Rule 3.55 of the Commission’s Rules of Practice, 16 C.F.R. § 3.55,

Complaint Counsel file this Petition for Reconsideration to request that the Commission modify

its Final Order in this matter to clarify that after the divestiture required by the Final Order is

accomplished, in connection with the use of the respective corporate names by the divested

entity and Chicago Bridge & Iron (“CB&I”), only the divested entity will have rights to the PittDes Moines corporate names, and CB&I will retain all of its rights to the CB&I corporate names.

 The Final Order requires CB&I to reorganize its “Relevant Business” into two separate

entities and then requires Respondents to divest one of the entities. The Relevant Business

includes “Intellectual Property,” which in turn includes rights to the Pitt-Des Moines and CB&I

corporate names. In addition, the Final Order requires CB&I to grant to the Commission-
1 “The ‘Pitt-Des Moines’ and ‘PDM’ names and all variations thereof were

licensed to CB&I in the Acquisition.” IDF 564 (citations omitted). The successor to

Respondent Pitts-Des Moines, Inc., appears to own some, if not all, of the remaining rights to the

Pitt-Des Moines corporate names. 

2 Alternatively, if the Commission concludes that Complaint Counsel have not

satisfied the standards of Rule 3.55, the Commission has the power nonetheless to modify an

2

approved acquirer a license to all of CB&I’s Intellectual Property, including the CB&I corporate

names. Accordingly, the Final Order could be interpreted to require CB&I to license its

corporate name to the acquirer so that, post-divestiture, the Commission-approved acquirer may

have rights to the Pitt-Des Moines corporate names and to the CB&I corporate names. If CB&I

retains rights to the Pitt-Des Moines names post-divestiture, both entities may end up with rights

to both companies’ names. An affirmative obligation on the part of Respondents to divest all of

Respondents’ rights to the Pitt-Des Moines corporate names, no matter which entity is divested,

and corresponding limitations on the CB&I corporate names in the definition of “Intellectual

Property” would prevent this result.

The Commission may modify a Final Order in response to a petition for reconsideration

filed pursuant to Rule 3.55 of the Commission’s Rules of Practice. See, e.g., American Medical

International, Inc., et al., 104 F.T.C. 617 (1984), in which the Commission modified its order, as

requested by Complaint Counsel, to clarify the procedures to be used when Respondent complies

with the Order’s prior notice obligations. Pursuant to Rule 3.55, Complaint Counsel thus 

request that the Commission modify the Final Order to impose an affirmative obligation on

Respondents in Paragraph IV to divest all rights to the Pitt-Des Moines names that they possess,1

with the corollary that Respondents are not required to divest rights to the CB&I corporate

names. 2 Conforming modifications to the definition of “Intellectual Property” excluding the
order on its own initiative pursuant to Rule 3.72(a) of the Commission’s Rules of Practice, 16

C.F.R. § 3.72(a), which states: 

(a) Before statutory review. At any time prior to the expiration of the time allowed for

filing a petition for review or prior to the filing of the transcript of the record of a

proceeding in a U.S. court of appeals pursuant to a petition for review, the Commission

may upon its own initiative and without prior notice to the parties reopen the proceeding

and enter a new decision modifying or setting aside the whole or any part of the findings

as to the facts, conclusions, rule, order, or opinion issued by the Commission in such

proceeding.

See, e.g., Novartis Corporation, et al., 128 F.T.C. 1 (1999)(Order Modifying Order, Denying

Petition for Reconsideration, and Denying as Moot Application for Stay). 

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rights to the CB&I corporate names, and to Paragraph V.A. specifically authorizing a divestiture

trustee, if appointed, to divest the rights to the Pitt-Des Moines names no matter which entity is

divested will further clarify Respondents’ obligations as to the corporate names. 

For all of these reasons, Complaint Counsel request that the Commission issue the

attached Order Modifying Final Order to modify definition Paragraph I.J,. Paragraph IV, and

Paragraph V (with modifications shown in red-line) to clarify Respondents’ obligations as to the

use of the respective corporate names.

DATE: January 31, 2005

Respectfully submitted,

____________________________

Rhett R. Krulla

Elizabeth A. Piotrowski

Naomi Licker

David von Nirschl

Counsel Supporting the Complaint

Bureau of Competition

Federal Trade Commission

Washington, D.C. 20580
UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Deborah Platt Majoras, Chairman

Orson Swindle

Thomas B. Leary

Pamela Jones Harbour

Jon Leibowitz

 

)

In the Matter of )

)

CHICAGO BRIDGE & IRON COMPANY, N.V., )

a foreign corporation, )

)

CHICAGO BRIDGE & IRON COMPANY, ) Docket No. 9300

a corporation, and )

)

PITT-DES MOINES, INC., )

a corporation. )

 )

PROPOSED ORDER MODIFYING FINAL ORDER

The Commission issued its Opinion and Final Order in this matter on December 21,

2004, and all parties were served as of January 18, 2005. Pursuant to Rule 3.55 of the

Commission’s Rules of Practice, 16 C.F.R. § 3.55, Complaint Counsel petitioned for

reconsideration of the Final Order on January 31, 2005, to clarify certain of Respondents’

obligations in the Final Order. The Commission has determined to grant Complaint Counsel’s

request to modify Paragraph I, Paragraph IV, and Paragraph V of the Final Order. 

Accordingly:

It is ordered that the Final Order in this matter dated December 21, 2004, be and it

hereby is modified to revise Paragraph I, Paragraph IV, and Paragraph V of the Final Order as

follows:

 

I.

J. “Intellectual Property” means, without limitation, (i) all trade names, registered and

unregistered trademarks, service marks and applications, domain names, trade dress,

copyrights, and copyright registrations and applications, in both published works and

unpublished works; provided, however, that the preceding shall exclude rights and title in
2

and to the use of the corporate names “Chicago Bridge & Iron” and “CB&I,” and any

related corporate, firm, or company names, except to the extent necessary to achieve the

purpose of, and to assure compliance with, this Order; (ii) all patents, patent applications,

and inventions and discoveries that may be patentable; and (iii) all know-how, trade

secrets, confidential information, customer lists, customer records and files, bidding and

estimating documents, software, technical information, data, registrations, applications

for governmental approvals, processes and inventions, practices, standards, formulae,

recipes, methods, and product and packaging specifications. 

IV. 

It is further ordered that: 

A. No later than one hundred eighty (180) days from the date this Order becomes final,

Respondents shall divest New PDM, absolutely and in good faith, at no minimum price,

only to an Acquirer that receives the prior approval of the Commission and only in a

manner that receives the prior approval of the Commission (including an executed

divestiture agreement, which shall not vary from or contradict, or be construed to vary

from or contradict, the terms of this Order); and Respondents Chicago Bridge & Iron,

N.V., and Chicago Bridge & Iron Company shall divest and convey to the Acquirer all

rights and title in and to the use of the corporate names “Pitt-Des Moines” and “PDM,”

any related corporate, firm, or company names, and any variation thereof; and

Respondent Pitt-Des Moines, Inc., shall divest and convey to the Acquirer all rights and

title in and to the use of the corporate names “Pitt-Des Moines” and “PDM,” any related

corporate, firm, or company names, and any variation thereof in connection with the

Relevant Business; provided, however, that Respondents shall not be required to divest or

convey any rights and title in and to the use of the corporate names “Chicago Bridge &

Iron,” and “CB&I,” and any related corporate, firm, or company names, except to the

extent necessary to achieve the purpose of, and to assure compliance with, this Order;

provided, further, however, that if the Acquirer, with the concurrence of the Monitor

Trustee, determines that acquiring any or all of the following assets is not necessary to

achieve the purposes of this Order, then Respondents need not divest assets that involve

no Relevant Products and are related exclusively to engineering, designing, estimating,

bidding, procuring, fabricating, erecting, rehabilitating, or selling any water storage tank

or system; any industrial process system, including but not limited to any digester,

absorber, reactor, and tower; any flat bottom tank; any pressure vessel or sphere; any

low-temperature or cryogenic tank or system; any vacuum chamber or system; any steel

plate fabrication; or any specialty structure.
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V.

It is further ordered that:

A. If Respondents have not divested, absolutely and in good faith, New PDM within the

time and in the manner required by Paragraph IV.A of this Order, the Commission may at

any time appoint a Divestiture Trustee, who upon his or her appointment shall undertake

to divest, in his or her discretion with the approval of the Commission, either New PDM

or New CB&I in a manner that satisfies the purposes and requirements of this Order. In

the event the Divestiture Trustee divests New CB&I, the terms of Paragraph IV of this

Order shall apply to the divestiture of New CB&I in the same way in which they apply to

New PDM, in particular that Respondents Chicago Bridge & Iron, N.V., and Chicago

Bridge & Iron Company shall divest and convey to the Acquirer all rights and title in and

to the use of the corporate names “Pitt-Des Moines” and “PDM,” any related corporate,

firm, or company names, and any variation thereof; Respondent Pitt-Des Moines, Inc.,

shall divest and convey to the Acquirer all rights and title in and to the use of the

corporate names “Pitt-Des Moines” and “PDM,” any related corporate, firm, or company

names, and any variation thereof in connection with the Relevant Business; and

Respondents shall not be required to divest or convey any rights and title in and to the

use of the corporate names “Chicago Bridge & Iron,” and “CB&I,” and any related

corporate, firm, or company names, except to the extent necessary to achieve the purpose

of, and to assure compliance with, this Order; 
4

CERTIFICATE OF SERVICE

I hereby certify that I today caused:

One original and twelve copies of Complaint Counsel’s Petition for

Reconsideration to Clarify Respondents’ Obligations as to the Pitt-Des Moines

and CB&I Corporate Names to be served by hand delivery and one copy to be

served by electronic mail upon:

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

One copy to be served by hand delivery upon:

Nada Sulaiman

Winston & Strawn

1400 L Street, NW

Washington, DC 20005

One copy by facsimile and by first-class mail upon:

Jeffrey A. Leon

Duane M. Kelley

Winston & Strawn

315 W. Wacker Drive

Chicago, IL 60601-9703

(312) 558-5600

Clifford H. Aronson 

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

(212) 735-2644

Counsel for Respondents

 

Naomi Licker

Commission Counsel

Dated: January 31, 2005