__________________________________________ 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

PUBLIC 

12 19 2012 

)
 

In the Matter of ) 

)
 

McWANE, INC., ) 

Respondent. ) 

__________________________________________ ) 

DOCKET NO. 9351 

COMPLAINT COUNSEL’S POST-TRIAL FINDINGS OF FACT
 

AND CONCLUSIONS OF LAW
 

Richard A. Feinstein 

Director 

Pete Levitas 

Deputy Director 

Melanie Sabo 

Assistant Director 

Geoffrey M. Green 

Deputy Assistant Director 

Michael J. Bloom 

Assistant Director for Policy & Coordination 

Jeanine Balbach 

Attorney, Office of Policy & Coordination 

Dated: December 19, 2012 

Edward D. Hassi, Esq. 

Linda M. Holleran, Esq. 

J. Alexander Ansaldo, Esq. 

Joseph R. Baker, Esq. 

Thomas H. Brock, Esq. 

Monica M. Castillo, Esq. 

Mika Ikeda, Esq. 

Andrew K. Mann, Esq. 

Federal Trade Commission 

Bureau of Competition 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-3496 

Electronic Mail: ehassi@ftc.gov 
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RECORD REFERENCES ........................................................................................................ xix
 

TABLE OF KEY DEFINED TERMS........................................................................................xx
 

PROPOSED FINDINGS OF FACT .............................................................................................1
 

1 Executive Summary ...........................................................................................................1
 

2 Jurisdiction .........................................................................................................................3
 

3 Fittings Industry Participants...........................................................................................3
 

3.1 McWane, Inc. ...........................................................................................................3
 

3.1.1 Company Basics...........................................................................................3
 

3.1.2 Key Employees ............................................................................................5
 

3.1.2.1 Richard (Rick) Tatman ................................................................5
 

3.1.2.2 Leon McCullough........................................................................6
 

3.1.2.3 Jerry Jansen .................................................................................6
 

3.1.2.4 Vincent Napoli ............................................................................6
 

3.1.2.5 G. Ruffner Page III......................................................................7
 

3.1.2.6 David Green (former employee) .................................................7
 

3.1.2.7 Charles F. Nowlin........................................................................7
 

3.1.2.8 Thomas Walton (former employee) ............................................8
 

3.1.2.9 John Springer...............................................................................8
 

3.1.2.10 Laura Alvey.................................................................................8
 

3.2 Sigma .......................................................................................................................9
 

3.2.1 Company Basics...........................................................................................9
 

3.2.2 Key Employees ..........................................................................................10
 

3.2.2.1 Victor Pais .................................................................................10
 

3.2.2.2 Siddarth Bhattacharji.................................................................11
 

3.2.2.3 Lawrence (Larry) Rybacki ........................................................11
 

3.2.2.4 Mitchell Rona ............................................................................12
 

3.2.2.5 Jim McGivern ............................................................................13
 

3.2.2.6 Tommy Brakefield ....................................................................13
 

3.2.2.7 Stuart Box..................................................................................14
 

3.2.2.8 Other Employees .......................................................................14
 

3.2.3 Sigma Email Distribution Lists ..................................................................15
 

3.3 Star .........................................................................................................................15
 

3.3.1 Company Basics.........................................................................................15
 

3.3.2 Key Employees ..........................................................................................17
 

3.3.2.1 Daniel McCutcheon ...................................................................17
 

3.3.2.2 Matthew Minamyer (former employee) ....................................18
 

3.3.2.3 Ramesh Bhutada ........................................................................18
 

3.3.2.4 Navin Bhargava.........................................................................19
 

3.3.2.5 Leroy H. Leider, Jr. ...................................................................20
 

3.3.2.6 Michael Berry............................................................................20
 

3.3.2.7 Other Employees .......................................................................21
 

3.4 Other Fittings Suppliers and Pipe Suppliers ..........................................................21
 

3.4.1 American Cast Iron Pipe Company ...........................................................21
 
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3.4.1.1 Company Basics ........................................................................21
 

3.4.1.2 Key Employees ..........................................................................21
 

3.4.2 Backman Foundry ......................................................................................22
 

3.4.2.1 Company Basics ........................................................................22
 

3.4.2.2 Key Employees ..........................................................................22
 

3.4.3 Griffin Pipe ................................................................................................23
 

3.4.3.1 Company Basics ........................................................................23
 

3.4.3.2 Key Employees ..........................................................................23
 

3.4.4 Metalfit.......................................................................................................23
 

3.4.4.1 Company Basics ........................................................................23
 

3.4.4.2 Key Employees ..........................................................................24
 

3.4.5 NAPAC......................................................................................................24
 

3.4.6 NACIP........................................................................................................24
 

3.4.6.1 Company Basics ........................................................................24
 

3.4.6.2 Key Employees ..........................................................................25
 

3.4.7 SIP..............................................................................................................25
 

3.4.7.1 Company Basics ........................................................................25
 

3.4.7.2 Key Employees ..........................................................................26
 

3.4.8 U.S. Pipe ....................................................................................................26
 

3.4.8.1 Company Basics ........................................................................26
 

3.4.8.2 Key Employees ..........................................................................27
 

3.4.9 Electrosteel USA........................................................................................27
 

3.4.9.1 Company Basics ........................................................................27
 

3.4.9.2 Key Employees ..........................................................................28
 

3.5 Domestic Foundries ...............................................................................................28
 

3.5.1 EBAA.........................................................................................................28
 

3.5.1.1 Company Basics ........................................................................28
 

3.5.1.2 Key Employees ..........................................................................28
 

3.5.2 EJ................................................................................................................28
 

3.5.2.1 Company Basics ........................................................................28
 

3.5.2.2 Key Employees ..........................................................................29
 

3.5.3 Frazier & Frazier Industries.......................................................................29
 

3.5.3.1 Company Basics ........................................................................29
 

3.5.3.2 Key Employees ..........................................................................29
 

3.5.4 Glidewell Foundry .....................................................................................30
 

3.5.4.1 Company Basics ........................................................................30
 

3.5.4.2 Key Employees ..........................................................................30
 

3.5.5 Mabry Castings ..........................................................................................30
 

3.5.5.1 Company Basics ........................................................................30
 

3.5.5.2 Key Employees ..........................................................................31
 

3.6 Distributors ............................................................................................................31
 

3.6.1 HD Supply .................................................................................................31
 

3.6.1.1 Company Basics ........................................................................31
 

3.6.1.2 Key Employees ..........................................................................31
 

3.6.2 Ferguson.....................................................................................................32
 

3.6.2.1 Company Basics ........................................................................32
 

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3.6.2.2 Key Employees ..........................................................................32
 

3.6.3	 WinWholesale ............................................................................................33
 

3.6.3.1 Company Basics ........................................................................33
 

3.6.3.2 Key Employees ..........................................................................33
 

3.6.4	 Hajoca ........................................................................................................34
 

3.6.4.1 Company Basics ........................................................................34
 

3.6.4.2 Key Employees ..........................................................................34
 

3.6.5	 The Distribution Group (TDG)..................................................................34
 

3.6.5.1 Company Basics ........................................................................34
 

3.6.5.2 Key Employees ..........................................................................35
 

3.6.6	 EJ Prescott, Inc...........................................................................................36
 

3.6.6.1 Company Basics ........................................................................36
 

3.6.6.2 Key Employees ..........................................................................36
 

3.6.7	 Groeniger & Company ...............................................................................37
 

3.6.7.1 Company Basics ........................................................................37
 

3.6.7.2 Key Employees ..........................................................................37
 

3.6.8	 Illinois Meter..............................................................................................38
 

3.6.8.1 Company Basics ........................................................................38
 

3.6.8.2 Key Employees ..........................................................................39
 

3.6.9	 C.I. Thornburg Company, Incorporated ....................................................39
 

3.6.9.1 Company Basics ........................................................................39
 

3.6.9.2 Key Employees ..........................................................................40
 

3.6.10 Utility Equipment Company ......................................................................40
 

3.6.10.1 Company Basics ........................................................................40
 

3.6.10.2 Key Employees ..........................................................................40
 

3.6.11 Dana Kepner Company ..............................................................................41
 

3.6.11.1 Company Basics ........................................................................41
 

3.6.11.2 Key Employees ..........................................................................41
 

3.7	 DIFRA....................................................................................................................41
 

3.7.1	 Bradley Arant.............................................................................................42
 

3.7.2	 Sellers Richardson .....................................................................................42
 

3.8	 AWWA ..................................................................................................................42
 

Industry Background.......................................................................................................43
 

4.1	 Fitting Basics .........................................................................................................43
 

4.1.1	 Applications ...............................................................................................43
 

4.1.2	 Shapes, Sizes, and Configurations.............................................................43
 

4.1.2.1 Shape and Size...........................................................................44
 

4.1.2.2 End Configuration .....................................................................45
 

4.1.2.3 Pressure Rating..........................................................................45
 

4.1.2.4 Coating and Lining....................................................................46
 

4.1.2.5 “A”, “B”, and “Oddball” Fittings..............................................46
 

4.1.3	 Manufacturing............................................................................................47
 

4.1.4	 Related Waterworks Products ....................................................................47
 

4.2 Fitting Sales Basics................................................................................................48
 

4.2.1	 Fittings Are a Commodity Product Produced Pursuant to 

Industry Wide Standards ............................................................................48
 

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4.2.2	 Demand Inelasticity ...................................................................................49
 

4.2.3	 Bidding Process .........................................................................................50
 

4.2.3.1	 Specifications ............................................................................50
 

4.2.3.2	 Material Takeoffs ......................................................................51
 

4.2.3.3	 Submittals ..................................................................................51
 

4.2.3.4	 Purchase Orders.........................................................................52
 

4.2.4	 Lowest Price Fittings Typically Win the Sale ...........................................52
 

4.2.5	 Lag Between Sale and Shipping ................................................................52
 

4.3	 Domestic and Open Specifications ........................................................................53
 

4.4	 Market Structure ....................................................................................................54
 

4.4.1	 Suppliers ....................................................................................................54
 

4.4.2	 Foundries....................................................................................................55
 

4.4.3	 End Users...................................................................................................56
 

4.4.4	 Distributors – General................................................................................57
 

4.4.4.1	 Virtually All Fittings Are Sold Through 

Distributors................................................................................57
 

4.4.4.2	 Numbers and Market Share of Distributors ..............................58
 

4.4.4.3	 Relationships with End Users....................................................59
 

4.4.4.4	 Local Nature of Distribution Business ......................................61
 

4.4.4.5	 Distributors Use Multiple Fittings Suppliers, and 

Benefit from Competition Among Fittings 

Suppliers....................................................................................62
 

4.4.4.6	 Fittings Suppliers Use Multiple Distributors.............................62
 

4.4.4.7	 Distributor Pricing.....................................................................63
 

4.4.5	 Distributors Provide Important Benefits to Fittings 

Suppliers and End Users ............................................................................64
 

4.4.5.1	 Distributors Bundle Goods and Provide OneStop Shopping ...........................................................................64
 

4.4.5.2	 Distributors Carry Inventory .....................................................64
 

4.4.5.3	 Distributors Provide Credit to End Users ..................................66
 

4.4.5.4	 Distributors Expand Supplier Sales and Service 

Capabilities................................................................................66
 

4.4.5.5	 Benefits of National Distributors ..............................................68
 

4.4.6	 Barriers to Distributor Entry ......................................................................68
 

4.4.6.1	 Start-Up Costs ...........................................................................69
 

4.4.6.2	 Access to Full Range of Waterworks Products .........................69
 

4.4.6.3	 Establishing Local Personnel and Relationships.......................69
 

4.4.6.4	 Plumbing Distributors Cannot Easily Enter 

Waterworks Distribution ...........................................................70
 

4.5	 How Prices Are Set................................................................................................70
 

4.5.1	 Published List Prices and Price Multipliers ...............................................70
 

4.5.2	 Project Pricing............................................................................................71
 

4.5.3	 Rebates and Other Payment Terms ............................................................73
 

4.5.3.1	 Rebates ......................................................................................73
 

4.5.3.2	 Freight Terms ............................................................................74
 

4.5.3.3	 Payment Terms..........................................................................75
 

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5	 Relevant Product Markets ..............................................................................................75
 

5.1	 Fittings Is a Relevant Product Market ...................................................................75
 

5.1.1	 No Other Product Is a Substitute ...............................................................75
 

5.1.1.1	 Other Products Are Not Interchangeable with 

Fittings.......................................................................................75
 

5.1.1.2	 Other Types of Fittings Do Not Constrain 

Fittings Prices............................................................................77
 

5.1.2	 Fittings of 24 Inches or Less in Diameter May Be Treated 

as a Cluster Market ....................................................................................78
 

5.1.2.1	 Market Analysis for Each Size and Shape of 

Fitting of 24 Inches or Less Is Identical ....................................78
 

5.1.2.2	 Fittings of 24 Inches or Less in Diameter Are 

Manufactured and Marketed Together and by 

Similar Methods ........................................................................79
 

5.1.2.3	 Market Conditions for Fittings of 24 Inches or 

Less in Diameter Are Distinct from Those for 

Fittings of 30 Inches or Greater in Diameter ............................80
 

5.1.2.4	 Grouping Fittings of 24 Inches or Less in 

Diameter is Consistent with Industry Practice ..........................81
 

5.2	 Domestic Fittings Is a Relevant Product Market ...................................................81
 

5.2.1	 Imported Fittings Are Not Substitutes for Domestic Fittings 

for Domestic-Only Specifications ..............................................................81
 

5.2.1.1	 ARRA-Funded Projects.............................................................82
 

5.2.1.2	 Other Domestic-Only Projects ..................................................82
 

5.2.2	 Domestic Fittings Are Sold at Substantially Higher Prices 

Than Those Sold into Open-Specification Jobs.........................................83
 

5.3	 The Relevant Geographic Market for Fittings and Domestic 

Fittings Consists of All Relevant Products Sold for Use in the 

United States ..........................................................................................................85
 

5.4	 McWane, Sigma, and Star Collectively Have Market Power in the 

Fittings Market.......................................................................................................85
 

5.4.1	 Collectively, McWane, Sigma, and Star Account for a Very 

High Share of the Fittings Market .............................................................86
 

5.4.2	 There Are High Barriers to Entry into the Fittings Market .......................86
 

6	 The Fittings Market Is Conducive to Collusion............................................................87
 

6.1	 Oligopoly Theory Describes How Firms in a Market Can Obtain 

Higher Profits Through Coordination and Accommodation .................................87
 

6.2	 Factors Indicating That a Market is Highly Susceptible to 

Collusion Are Present in the Fittings Market ........................................................89
 

6.3	 Fittings Market Pricing Dynamics Are Conducive to Collusion ...........................90
 

6.3.1	 Pricing Interdependence.............................................................................90
 

6.3.2	 Published Prices Are Transparent ..............................................................92
 

6.3.3	 Project Prices Are Not Transparent ...........................................................93
 

6.3.4	 Fittings Suppliers Routinely Receive Each Other’s Pricing 

Letters ........................................................................................................94
 

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6.3.5 Fittings Suppliers Use Pricing Letters to Communicate with 

Competitors ................................................................................................97
 

6.3.5.1	 Fittings Suppliers Used Customer Pricing Letters 

to Signal Messages to Their Competitors in 2008 ....................98
 

6.3.5.2	 Fittings Suppliers Used Customer Pricing Letters 

to Signal Messages to Their Competitors in 2009 ....................98
 

6.3.5.3	 Fittings Suppliers Used Customer Pricing Letters 

to Signal Messages to Their Competitors in 2010 ....................99
 

6.4	 Fittings Market Social Structure ............................................................................99
 

6.4.1	 The Fittings Suppliers Often Met and Spoke with Each 

Other ..........................................................................................................99
 

6.4.1.1	 History of Competitor Communications .................................100
 

6.4.1.2	 Telephone Contacts .................................................................102
 

6.4.1.3	 Specific Contacts Reflected in Telephone 

Records....................................................................................103
 

6.4.1.4	 Specific Meetings and Calls Reflected in the 

Suppliers’ Documents .............................................................110
 

6.4.1.5	 OEM Sales Between Suppliers................................................111
 

6.4.1.6	 Merger Discussions .................................................................112
 

6.4.1.7	 Policies on Competitor Contacts .............................................113
 

6.4.2	 Mr. Page (McWane) and Mr. Pais (Sigma) Have Developed 

a Close and Trusting Relationship, and Discuss 

Competitive Dynamics and Pricing Practices in the Fittings 

Market......................................................................................................114
 

6.5	 Fittings Suppliers Had a Motive to Conspire .......................................................116
 

6.5.1	 McWane’s Motive to Conspire ................................................................116
 

6.5.1.1	 McWane Faced Excess Inventory, Overcapacity, 

and High Production Costs......................................................116
 

6.5.1.2	 McWane Was Losing Volume and Market Share 

Because It Could Not Compete Effectively 

Against Project Pricing Offered by Sigma and 

Star...........................................................................................117
 

6.5.2	 McWane and Sigma Had a Motive to Conspire with Star, 

Which Regularly Engaged in Competitive Project Pricing 

and Which McWane and Sigma Saw as Detrimental to the 

Industry ....................................................................................................118
 

6.5.3	 Sigma and Star Had a Motive to Conspire Because 

Inflationary Costs in China Were Rising Faster Than 

McWane’s U.S. Costs ..............................................................................119
 

6.5.4	 Sigma and Star Sought to Raise Prices in Late 2007; 

McWane Did Not Follow .........................................................................121
 

Price-Fixing Conspiracy in the Fittings Market Among McWane, 

Sigma, and Star ..............................................................................................................126
 

7.1	 The Tatman Plan ..................................................................................................126
 

7.1.1	 Mr. Tatman Developed a Plan for Achieving Stability and 

Transparency in the Fittings Market ........................................................126
 

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7.1.2	 McWane Centralized Its Pricing Authority in 2008 ................................129
 

7.2	 In the First Quarter of 2008, Sigma, Star and McWane Agreed to 

Match Prices and Cut Back Project Pricing.........................................................130
 

7.2.1	 McWane’s January 11, 2008 Letter Was an Invitation to 

Collude.....................................................................................................130
 

7.2.2	 Sigma Followed McWane’s New Fittings Price Multipliers 

and Accepted McWane’s Invitation to Curtail Project 

Pricing......................................................................................................134
 

7.2.3	 Star Followed McWane’s New Fittings Price Multipliers 

and Accepted McWane’s Invitation to Curtail Project 

Pricing......................................................................................................138
 

7.2.3.1	 Star Instructed Its Sales Force to Curtail Project 

Pricing .....................................................................................139
 

7.2.3.2	 Star Centralized Its Pricing Authority .....................................141
 

7.2.3.3	 Star Announced to Its Customers That It Would 

Match McWane’s Multiplier Increase and Curtail 

Project Pricing .........................................................................142
 

7.2.3.4	 Star Curtailed Its Project Pricing and Sought to 

Ensure That McWane Noticed ................................................144
 

7.2.3.5	 Star Monitored McWane’s and Sigma’s 

Compliance with the Commitment to Curtail 

Project Pricing .........................................................................144
 

7.2.4	 The Suppliers’ Centralization of Pricing Authority and 

Curtailment of Project Pricing Was an Abrupt Change from
 

Historical Business Practices ...................................................................146
 

7.2.5	 McWane, Sigma, and Star Directly Communicated with 

Each Other to Implement the Agreement, and Complained 

When They Perceived “Cheating” ...........................................................147
 

7.2.6	 McWane Monitored Progress of the Tatman Plan, and 

Considered It a Success through the First Quarter of 2008 .....................150
 

7.2.7	 Absent Concerted Action, the Abrupt Change of a LongStanding Business Practice to Curtail a Key Element of 

Price Competition, Project Pricing, Would Be Against Each 

Supplier’s Unilateral Business Interest....................................................152
 

7.3	 McWane Supported Its Invitation to Collude by Communicating 

Its Manufacturing Cost Advantage to Sigma.......................................................155
 

7.4	 In Early 2008, McWane, Sigma, and Star Restarted Efforts to 

Organize the DIFRA Information Exchange to Enhance 

Competitive Transparency ...................................................................................157
 

7.4.1	 The Suppliers Had Been Working on Organizing DIFRA 

for Years, but DIFRA Did Not Become Operational Prior 

to the 2008 Price Fixing Conspiracy........................................................157
 

7.4.2	 In February 2008, McWane and Sigma Agreed to Restart 

Efforts to Form the DIFRA Information Exchange .................................160
 

7.4.3	 McWane, Sigma, and Star Included U.S. Pipe as a DIFRA 

Member Solely to Mask Antitrust Concerns ...........................................161
 

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7.4.4	 DIFRA Operational Stage Organizing in 2008 ........................................164
 

7.4.5	 Star Was a Reluctant Participant in DIFRA ............................................166
 

7.5	 In May and June 2008 McWane Agreed to a Further Price Increase 

Conditioned Upon Sigma’s and Star’s Participation in the DIFRA 

Information Exchange ..........................................................................................167
 

7.5.1	 Sigma Remained Eager for a Further Price Increase, and 

Sought to Demonstrate to McWane That It Had Complied 

with the Tatman Plan’s Call for the Elimination of Project 

Pricing......................................................................................................167
 

7.5.1.1	 Sigma Planned a Further, “Big Bold” Price 

Increase, and Lobbied McWane and Star for 

Support ....................................................................................167
 

7.5.1.2	 Sigma Prematurely Announced Its Price Increase 

After the DIFRA Members Reached Agreement 

on Reporting Procedures .........................................................170
 

7.5.2	 McWane’s May 7, 2008 Coded Letter Invited Sigma and 

Star to Collude by Requiring Participation in DIFRA in 

Exchange for Fittings Price Increases......................................................171
 

7.5.2.1	 The Coded Language in McWane’s May 2007 

Letter Was Meaningless to Its Distributor 

Customers ................................................................................173
 

7.5.2.2	 The Other Suppliers Thought It Was Unusual for 

McWane to Send a Price Letter to Customers 

That Did Not Actually Announce a New Price.......................174
 

7.5.3	 McWane Withheld Its Agreement to a Price Increase Until 

the DIFRA Information Exchange Was Implemented .............................175
 

7.5.3.1	 Sigma and Star Understood the Coded Message 

in McWane’s May 7, 2008 Letter and Delayed 

Their Announced Price Increase .............................................175
 

7.5.3.2	 Star Understood the Coded Message in 

McWane’s May 7, 2008 Letter and Immediately 

Agreed to Submit Its Sales Data to DIFRA ............................176
 

7.5.3.3	 McWane and Sigma Closely Monitored Star’s 

Delay in Submitting Its Sales Data to DIFRA ........................177
 

7.5.3.4	 Star Submitted Its Data to DIFRA on June 5, 

2008 Invoking the Language of McWane’s May 

7, 2008 letter............................................................................178
 

7.5.3.5	 McWane Delayed Its Price Announcement 

Because of Delays in Receiving the First DIFRA 

Report ......................................................................................179
 

7.5.3.6	 The First DIFRA Report Was Issued On June 17, 

2008.........................................................................................181
 

7.5.3.7	 McWane Issued a Price Increase Within Hours 

After Receiving the First DIFRA Report ................................181
 

7.5.3.8	 Star and Sigma Quickly Matched McWane’s 

June 17, 2008 Price Increase ...................................................183
 

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7.5.3.9	 Mr. Tatman Actively Policed the Prompt 

Submittal and Turnaround of Monthly DIFRA 

Reports.....................................................................................184
 

7.6	 DIFRA Was Intended and Used to Facilitate Price Stability and 

Transparency Through an Information Exchange ...............................................185
 

7.6.1	 Original Purposes of DIFRA ...................................................................185
 

7.6.2	 McWane, Sigma and Star Intended DIFRA to Facilitate 

Their Information Exchange and Stabilize the Fittings 

Market......................................................................................................187
 

7.6.2.1	 Sigma .......................................................................................187
 

7.6.2.2	 Star...........................................................................................191
 

7.6.2.3	 McWane ..................................................................................192
 

7.6.2.4	 Initial Inclusion of Dollar Amounts ........................................192
 

7.6.3	 McWane, Sigma and Star Used the DIFRA Data to Monitor 

Their Market Shares, Detect Cheating and Inform Their 

Pricing Decisions .....................................................................................193
 

7.6.3.1	 McWane Use of DIFRA Data .................................................193
 

7.6.3.2	 Star Use of DIFRA Data .........................................................196
 

7.6.3.3	 Sigma Use of DIFRA Data ......................................................197
 

7.6.3.4	 Sigma Correction of DIFRA Data ...........................................199
 

7.7	 The Agreements Among McWane, Sigma, and Star Were 

Successful Through Most of 2008 Before Trust Began to Break 

Down in the Fall of 2008 .....................................................................................199
 

7.7.1	 The Suppliers Observed Reduced Project Pricing and 

Stabilized and Increasing Prices ..............................................................199
 

7.7.2	 McWane’s Fittings Prices and Financial Performance 

Improved ..................................................................................................201
 

7.7.3	 Star’s Fittings Prices and Financial Performance Improved ....................203
 

7.7.4	 Sigma’s Fittings Prices and Financial Performance 

Improved ..................................................................................................205
 

7.7.5	 Star’s “Special Project Pricing Reports” and Star’s “RX557.xls Pinks-final” Are Not Probative of a Failure on 

Star’s Part to Curtail Project Pricing in 2008 ...........................................206
 

7.7.5.1	 The SPPRs and RX-557.xls Pinks-final Are 

Internally Inconsistent, Contradictory, or 

Otherwise Unreliable Evidence of Whether Star 

Engaged in Project Pricing to Meet Competition
 

in the Sale of Fittings During the Conspiracy .........................207
 

7.7.5.2	 The SPPRs and Star’s RX-557.xls Pinks-final 

Included Numerous Transactions in Products 

Other Than Fittings and in Locations Outside the 

United States............................................................................209
 

7.7.5.3	 The SPPRs and Star’s RX-557.xls Pinks-final 

Included Numerous Transactions That Occurred 

Before the Conspiracy Was Implemented or 

After It Broke Down................................................................210
 

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7.7.5.4	 To the Extent the SPPRs Constitute Probative 

Evidence at All, They Show That Star Extended 

Fewer Project Pricing Discounts During the 

Conspiracy Period Than It Extended in 

Corresponding Periods in 2007 ...............................................210
 

7.7.6	 The Fittings Pricing Analysis of McWane’s Expert Is 

Flawed......................................................................................................212
 

7.8	 As Market Conditions Worsened, the Fittings Suppliers Continued 

to Monitor Each Other’s Pricing Actions, and Communicated 

Regarding Perceived “Cheating” .........................................................................214
 

7.8.1	 The Suppliers Monitored the Marketplace for “Cheating”......................214
 

7.8.2	 The Suppliers Complained About Cheating ............................................216
 

7.8.3	 The Suppliers Resumed Project Pricing ..................................................217
 

7.8.4	 Sigma Attempted a Further Price Increase in January 2009 ....................220
 

7.8.5	 DIFRA Collapsed in Early 2009 ..............................................................221
 

7.8.6	 Sigma Tried to Restart DIFRA in May 2009 to Restore 

Trust .........................................................................................................222
 

7.9	 In the Spring of 2009, McWane Restructured Its List Prices and 

Exchanged Pricing Assurances with Star ............................................................223
 

7.9.1	 McWane Announced a Price Restructuring .............................................223
 

7.9.2	 Sigma Opposed McWane’s Price Restructuring and 

Attempted to Persuade McWane to Rescind or Delay Its 

Price Restructuring...................................................................................225
 

7.9.3	 Sigma Attempted to Persuade Star and SIP to Join in 

Resisting McWane’s Price Restructuring ................................................230
 

7.9.4	 McWane Exchanged Assurances with Star Regarding 

Setting List Prices ....................................................................................231
 

7.10	 McWane, Sigma, and Star Have Continued Their Pattern of 

Improper Pricing Communication and Coordination ..........................................234
 

ARRA Changed the Competitive Landscape in the Fittings Market .......................237
 

8.1	 ARRA Had a Buy American Requirement..........................................................238
 

8.1.1	 Sigma and Star Unsuccessfully Lobbied Against the Buy 

American Requirement ............................................................................238
 

8.1.2	 Fittings Produced in Mexico or South Korea Did Not 

Satisfy ARRA’s Buy American Requirement .........................................239
 

8.1.3	 There Was Insignificant Use of Waivers of the Buy 

American Requirement for Fittings Used in ARRA-Funded 

Waterworks Projects ................................................................................240
 

8.1.3.1	 The EPA Had Authority to Grant Certain 

Waivers of the Buy American Requirement for 

ARRA-Funded Waterworks Projects ......................................240
 

8.1.3.2	 The EPA Granted Only Three Public Interest
 

Waivers During the Entire ARRA Period ...............................241
 

8.1.3.3	 The De Minimis Waiver of the Buy American 

Requirement for ARRA-Funded Waterworks 

Projects Had Limited, if Any, Use for Fittings .......................242
 

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8.2	 Sigma and Star Only Sold Imported Fittings, and Were Threatened 

by ARRA’s Buy American Provision ..................................................................244
 

8.2.1	 Fittings Suppliers Projected That the Domestic Fittings 

Market Would Grow – at the Expense of the Import Market 

– After ARRA Became Law ....................................................................244
 

8.2.2	 Fittings Suppliers Expected That Buy-American Sentiment 

Would Extend Beyond ARRA.................................................................245
 

8.2.3	 Sigma and Star Were Concerned That ARRA’s 

Requirement for Domestic Fittings Would Also Result in 

the Loss of Non-Domestic Fittings Business ...........................................247
 

8.3	 ARRA Increased the Number of Domestic Fittings Projects ..............................249
 

9	 McWane Has Monopoly Power or a Dangerous Probability of 

Achieving Monopoly Power in the Domestic Fittings Market ...................................250
 

9.1	 McWane Has a Dominant Market Share in the Domestic Fittings 

Market..................................................................................................................250
 

9.2	 There Are High Barriers to Entry into the Supply of Domestic 

Fittings .................................................................................................................251
 

9.3	 Star Did Not Face the Same Entry Barriers as a De Novo Entrant ......................251
 

9.4	 Domestic Foundries, Pipe Manufacturers, and Other Suppliers of 

Imported Fittings Are Not Potential Entrants into the Domestic 

Fittings Market.....................................................................................................252
 

9.4.1	 Domestic Foundries Are Not Potential Entrants into the 

Domestic Fittings Market ........................................................................252
 

9.4.2	 Pipe Manufacturers Are Not Potential Entrants into the 

Domestic Fittings Market ........................................................................253
 

9.4.3	 Other Suppliers of Imported Fittings Are Not Potential 

Entrants into the Domestic Fittings Market .............................................254
 

9.5	 McWane Was Able to Control Prices, Impose Unfavorable Terms 

on Customers, and Exclude Competitors in the Domestic Fittings 

Market..................................................................................................................254
 

9.5.1	 McWane Charged Higher Prices and Earned Higher 

Margins for Domestic Fittings Than for Non-Domestic 

Fittings, and Its Pricing Was Not Constrained by 

Competitor Efforts to “Flip” Domestic Specifications to 

Open Specifications .................................................................................254
 

9.5.2	 McWane Was Able to Impose Unfavorable Terms on 

Distributor Customers..............................................................................256
 

9.5.3	 McWane Was Able to Exclude Competitors from the 

Domestic Fittings Market ........................................................................257
 

10	 McWane Implemented an Exclusive Dealing Policy in the Domestic 

Fittings Market...............................................................................................................257
 

10.1	 Star Entered the Domestic Fittings Market ..........................................................257
 

10.1.1 Star Announced Its Entry into the Domestic Fittings Market 

in June 2009 .............................................................................................257
 

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10.1.2 Star Planned to Quickly Enter the Domestic Fittings Market
 

While It Built Its Inventory and Sales to Become a FullLine Supplier with Its Own Domestic Foundry .......................................258
 

10.1.2.1	 Star Decided to Initially Enter the Domestic 

Fittings Market by Contracting with Independent 

Domestic Foundries in Order to Bring Its 

Domestic Fittings to Market More Quickly ............................258
 

10.1.2.2	 Star Decided to Enter the Domestic Market by 

First Supplying the Most Common Fittings as It 

Built Its Inventory to Become a Full-Line 

Supplier ...................................................................................259
 

10.1.2.3	 Star Planned to Buy or Build Its Own Foundry in 

Order to Recognize Manufacturing Cost 

Efficiencies After It Had Sufficient Sales to 

Justify the Additional Investment............................................260
 

10.1.3 Star Took the Steps Necessary to Enter the Domestic 

Fittings Market in 2009............................................................................260
 

10.1.3.1	 Star Identified and Contracted with Independent, 

Third-Party Foundries to Produce Domestic 

Fittings for Star........................................................................260
 

10.1.3.2	 Star Acquired Patterns for Producing Domestic 

Fittings.....................................................................................262
 

10.1.3.3	 Star Expanded Its Finishing Facilities for 

Domestic Fittings ....................................................................263
 

10.1.4 Star’s Imported Fittings Business Provided It with the 

Expertise and Distributor Relationships Necessary for 

Manufacturing and Selling Domestic Fittings .........................................263
 

10.1.5 Star Had the Overwhelming Support of Its Customer Base ....................264
 

10.1.6 Star Began Producing Domestic Fittings .................................................265
 

10.2	 McWane Adopted an Exclusive Dealing Policy with the Specific 

Intent to Eliminate Star as a Competitor in the Domestic Fittings 

Market..................................................................................................................266
 

10.2.1 McWane Feared That Star’s Entry Would “Cream” Prices 

in the Domestic Fittings Market ..............................................................266
 

10.2.2 McWane Wanted to Prevent Star from Gaining a 

“Toehold” in the Domestic Fittings Market.............................................268
 

10.2.3 McWane Developed Its Exclusive Dealing Policy 

Specifically to “Block” Star .....................................................................270
 

10.2.4 McWane’s Specific Intent to Exclude Star Is Also 

Reflected in McWane’s 2009 Revisions to Its Corporate 

Rebate Program........................................................................................272
 

10.3	 McWane Implemented a “Hard Line” Exclusive Dealing Policy .......................273
 

10.3.1 McWane Published Its Exclusive Dealing Policy on 

September 22, 2009 .................................................................................273
 

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10.3.2 McWane Implemented the Exclusive Dealing Policy by 

Communicating a Harder Line Policy to Distributors Than 

Was Explicit in Its September 22, 2009 Letter ........................................274
 

10.4	 McWane Enforced Its Exclusive Dealing Policy Against Hajoca .......................279
 

10.4.1 Hajoca’s Tulsa Branch Purchased Domestic Fittings from
 

Star ...........................................................................................................280
 

10.4.2 McWane Cut Off All Hajoca Branches ...................................................281
 

10.4.3 After McWane Became Aware of the FTC Investigation, 

McWane Negotiated with Hajoca to Give All Non-Tulsa 

Branches Access to McWane’s Domestic Fittings ..................................283
 

10.4.4 McWane Withheld Hajoca’s Domestic Fittings Rebate ..........................284
 

10.5	 McWane’s Exclusive Dealing Policy Worked: Distributors Did 

Not Purchase Domestic Fittings from Star ..........................................................284
 

10.5.1 McWane’s Exclusive Dealing Policy Was Viewed by 

Distributors as Presenting an Intolerable Risk That 

McWane Would Cut Them Off if They Purchased 

Domestic Fittings from Star .....................................................................284
 

10.5.2 At McWane’s Urging, HD Supply Issued a Mandate Letter 

Directing Its Branches Not to Purchase Star’s Domestic 

Fittings .....................................................................................................287
 

10.5.2.1	 McWane Requested That HD Supply Issue an 

Internal Letter Mandating Adherence to 

McWane’s Exclusive Dealing Policy ......................................287
 

10.5.2.2	 HD Supply Issued the Requested Mandate Letter...................288
 

10.5.2.3	 HD Supply Refused to Purchase Domestic 

Fittings from Star.....................................................................289
 

10.5.3 After Receiving McWane’s Exclusive Dealing Policy, 

Ferguson Ensured Compliance with the Policy CompanyWide .........................................................................................................292
 

10.5.3.1	 Ferguson Informed All of Its District Managers 

of the Policy.............................................................................292
 

10.5.3.2	 Ferguson Refused to Purchase Domestic Fittings 

from Star ..................................................................................293
 

10.5.4 After Receiving McWane’s Exclusive Dealing Policy, 

WinWholesale Put Star Domestic Fittings on Its “Not 

Approved” Vendor List............................................................................294
 

10.5.4.1	 Prior to McWane Issuing Its Exclusive Dealing 

Policy, WinWholesale was Interested in 

Purchasing Domestic Fittings from Star .................................294
 

10.5.4.2	 WinWholesale Put Star Domestic Fittings on Its 

“Not Approved” List ...............................................................294
 

10.5.5 McWane’s Exclusive Dealing Policy Caused Groeniger to 

Stop Purchasing Domestic Fittings Directly from Star............................296
 

10.5.5.1	 Groeniger Awarded Star Domestic Fitting 

Business Prior to McWane Issuing Its Exclusive 

Dealing Policy .........................................................................296
 

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10.6 

10.7 

10.8

10.5.5.2	 McWane Punished Groeniger for Purchasing 

Domestic Fittings from Star ....................................................296
 

10.5.5.3	 Groeniger Stopped Purchasing Domestic Fittings 

from Star Out of Fear of Retaliation from
 

McWane ..................................................................................297
 

10.5.5.4	 Groeniger Still Wanted to Purchase Domestic 

Fittings from Star.....................................................................299
 

10.5.5.5	 Groeniger Purchased Star Domestic Fittings 

Indirectly Through Griffin Pipe ..............................................299
 

10.5.6 McWane Enforced Its Exclusive Dealing Policy Against 

Members of The Distribution Group (TDG) ...........................................300
 

10.5.6.1	 TDG Vendor Committee Negotiations ....................................300
 

10.5.6.2	 Illinois Meter Refused to Purchase Star Domestic 

Fittings Because of McWane’s Exclusive 

Dealing Policy .........................................................................301 

10.5.6.3	 Other TDG Distributor Members Wanted to 

Purchase Domestic Fittings from Star but Did 

Not Because of McWane’s Exclusive Dealing 

Policy .......................................................................................302
 

10.5.7 Customers Purchased Domestic Fittings from Star in 

.....................................................

Limited Circumstances where McWane’s Exclusive 

Dealing Policy Did Not Pose a Threat 304
 

McWane Employed Its Exclusive Dealing Policy to Prevent U.S. 

Pipe from Purchasing Domestic Fittings from Star .............................................305
 

10.6.1 U.S. Pipe Purchased and Re-sold Sigma, Star, and McWane 

Fittings .....................................................................................................305
 

10.6.2 U.S. Pipe Pursued the Purchase of Domestic Fittings from
 

Star and Star Offered Competitive Prices................................................305
 

10.6.3 Mr. Tatman Conveyed McWane’s Exclusive Dealing 

Policy to U.S. Pipe as a Strict, All-or-Nothing Policy .............................306
 

10.6.4 U.S. Pipe Declined to Purchase Domestic Fittings from Star 

Because of McWane’s Exclusive Dealing Policy ....................................307
 

McWane Never Publicly Withdrew Its Exclusive Dealing Policy ......................308
 

Entering the Domestic Fittings Market ................................................................309
 

 Was Deterred by McWane’s Exclusive Dealing Policy from
 

10.8.1 Considered Entering the Domestic Market in 2009 ..........................309
 

10.8.1.1 Discussed Its Domestic Entry with 

Customers ................................................................................309
 

10.8.1.2 Identified a Cost-Effective Domestic 

Foundry to Produce Domestic Fittings for .......................310
 

10.8.1.3 Had Sufficient Capital to Finance Domestic 

Entry ........................................................................................310
 

10.8.1.4 Had Patterns Available for Domestic Fittings 

Manufacturing .........................................................................310
 

10.8.2 {	 } Because of 

McWane’s Exclusive Dealing Policy ......................................................311
 

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10.9	 McWane’s Exclusive Dealing Policy Had an Immediate Negative 

Impact on Star’s Business in the Market for Domestic Fittings ..........................311
 

10.9.1 Star’s Domestic Fittings Business Lost Sales and Was 

Unprofitable Due to McWane’s Exclusive Dealing Policy .....................312
 

10.9.1.1	 Star’s Domestic Fittings Business Lost Sales Due 

to McWane’s Exclusive Dealing Policy ..................................312
 

10.9.1.2	 Star Failed to Meet Its Domestic Fittings Sales 

Targets and Its Domestic Fittings Business Was 

Unprofitable.............................................................................314
 

10.9.2 McWane’s Exclusive Dealing Policy Prevented Star from
 

Investing in Its Business ..........................................................................315
 

10.9.2.1	 Disadvantages of Working with Independent 

Jobbing Foundries ...................................................................315
 

10.9.2.2	 Star Planned to Obtain a Dedicated Foundry for 

Its Domestic Fittings Production .............................................317
 

10.9.2.3	 Star Did Not Purchase a Dedicated Foundry for 

Its Domestic Fittings Production Because of 

McWane’s Exclusive Dealing Policy ......................................319
 

10.9.3 McWane’s Exclusive Dealing Policy Made Star Unable to 

Effectively Compete with McWane in Domestic Fittings .......................323
 

11	 McWane Entered the MDA with Sigma to Further Secure Its 

Monopoly Position in the Domestic Fittings Market ..................................................323
 

11.1	 Sigma Considered Two Options for Meeting Its Number One 

Priority: Domestic Fittings Sourcing ...................................................................324
 

11.2	 McWane Rejected Sigma’s Initial Request for “Private Label” 

Domestic Fittings .................................................................................................325
 

11.3	 In Response to Sigma’s Continued Pursuit of Private Label 

Fittings, McWane Made an Offer That Sigma Could Not Accept: 

McWane Branded Fittings for Only 5% off Published Prices .............................326
 

11.3.1 Sigma Continued to Appeal to McWane for Private Label 

Domestic Fittings .....................................................................................326
 

11.3.2 McWane Considered Whether to Provide Domestic Fittings 

to Sigma ...................................................................................................326
 

11.3.3 McWane Offered McWane Branded Domestic Fittings to 

Sigma at 5% Discount off of Published Pricing ......................................329
 

11.4	 Sigma Developed and Implemented Its Own Domestic Production 

Plan ......................................................................................................................330
 

11.4.1 Sigma Was a Potential Entrant into the Domestic Fittings 

Market Until It Signed the MDA with McWane .....................................330
 

11.4.1.1	 Sigma Formed a Team of Top Executives to 

Move Forward with Its Plan to Enter the 

Domestic Fittings Market by Producing Fittings 

Through Independent, Domestic Foundries ............................330
 

11.4.1.2	 Sigma Developed a Viable Plan for Domestic 

Entry ........................................................................................331
 

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11.4.1.3 Sigma Invested Significant Resources and Took 

Concrete Steps in Pursuit of Domestic 

Production ...............................................................................332
 

11.4.1.4	 Sigma Had Domestic Fittings Samples Ready for 

Display at the June 2009 AWWA Show .................................334
 

11.4.1.5	 Sigma Redoubled Its Domestic Production 

Efforts in Early June 2009.......................................................335
 

11.4.1.6	 Sigma Actively Pursued Domestic Fittings 

Production Throughout the Summer of 2009 and 

Until It Signed the MDA with McWane .................................335
 

11.4.2 Sigma’s Customers Supported Its Entry into the Domestic 

Fittings Market, and Sigma Provided Assurances to 

Customers ................................................................................................337
 

11.4.3 The SDP Team Modeled Costs of Domestic Fittings 

Production and Determined That Sigma Could Earn 

Sufficient Profit Margins .........................................................................338
 

11.4.4 Sigma Had the Financial Resources to Enter Domestic 

Fittings Production...................................................................................339
 

11.4.5 Sigma’s Domestic Production Plan Had the Support of 

Sigma’s Board, Investors, and Lenders ...................................................341
 

11.5	 McWane Decided to Sell Domestic Fittings to Sigma as an 

Alternative to Sigma Entering the Domestic Fittings Market .............................342
 

11.5.1 Sigma Communicated Its SDP Plans for Independent Entry 

to McWane ...............................................................................................342
 

11.5.2 McWane Entered into the MDA with Sigma Because 

McWane Believed That Otherwise Sigma Would 

Independently Enter the Domestic Fittings Market .................................343
 

11.6	 Sigma and McWane Negotiated the MDA to Supplant Sigma’s 

Independent Entry................................................................................................346
 

11.7	 McWane Would Have Earned Higher Margins Selling to 

Distributors Itself .................................................................................................353
 

11.8	 The Terms of the MDA Severely Restricted Competition in the 

Domestic Fittings Market ....................................................................................354
 

11.8.1 Sigma Was Required to Source Domestic Fittings Only 

from McWane, and Abandoned Its Domestic Production 

Initiative ...................................................................................................354
 

11.8.1.1	 The MDA Required Sigma to Source Domestic 

Fittings Exclusively from McWane ........................................354
 

11.8.1.2	 Sigma Abandoned Its Domestic Production 

Initiative as a Result of the MDA............................................356
 

11.8.2 Sigma Was Required to Enforce McWane’s Exclusive 

Dealing Policy..........................................................................................357
 

11.8.2.1	 The MDA Required Sigma to Enforce 

McWane’s Exclusive Dealing Policy ......................................357
 

11.8.2.2	 Sigma Implemented and Enforced McWane’s 

Exclusive Dealing Policy ........................................................358
 

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11.8.3 McWane and Sigma Agreed on Domestic Fittings Prices 

Under the MDA .......................................................................................360
 

11.8.3.1	 The MDA Expressly Limited the Prices at Which 

Sigma Could Sell Domestic Fittings .......................................361
 

11.8.3.2	 Sigma and McWane Both Agreed to sell 

Domestic Fittings at or Above 98% of Published 

Multipliers and Raise Published Prices...................................362
 

11.8.4 Sigma Agreed Not to Oppose Buy American Legislation .......................364
 

11.8.5 Sigma Was Not Permitted to Sell to U.S. Pipe ........................................365
 

11.9	 The MDA Did Not Increase Output or Expand the Market for 

Domestic Fittings .................................................................................................366
 

11.10	 McWane and Sigma Entered into the MDA with Specific Intent to 

Monopolize the Domestic Fittings Market ..........................................................367
 

12	 As a Result of Its Excusive Dealing Policy and the MDA, McWane 

Was Able to Maintain Its Monopoly Power in the Domestic Fittings 

Market.............................................................................................................................369
 

12.1	 McWane Was Able to Maintain Its Dominant Share of Domestic 

Fittings in 2010 ....................................................................................................370
 

12.2	 McWane Was Able to Increase Prices of Domestic Fittings in 2010 ..................370
 

12.3	 There Were Delays and Quality Shortfalls in McWane’s Supply of 

Domestic Fittings to Sigma Under the MDA ......................................................371
 

12.4	 McWane Terminated the MDA After It Received Notice of the 

FTC Investigation, but Has Continued to Sell Domestic Fittings to 

Sigma ...................................................................................................................372
 

PROPOSED CONCLUSIONS OF LAW 

A. GENERAL 

B. MARKET DEFINITION 

C. MONOPOLY AND MARKET POWER 

D. COUNT ONE: MCWANE ORCHESTRATED A 

CONSPIRACY WITH ITS COMPETITORS TO RESTRAIN 

PRICE COMPETITION BY LIMITING PROJECT 

PRICING
 

E. COUNT TWO: MCWANE AND ITS COMPETITORS 

PARTICIPATED IN AN ILLEGAL INFORMATION 

EXCHANGE 

F. COUNT THREE: MCWANE INVITED ITS COMPETITORS 

TO JOIN A PER SE UNLAWFUL CONSPIRACY 

G. COUNT FOUR: MCWANE ENLISTED ITS COMPETITOR 

SIGMA AS A MASTER DISTRIBUTOR TO PREVENT 

COMPETITION IN THE DOMESTIC FITTINGS MARKET 

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H. COUNT FIVE: MCWANE AND SIGMA CONSPIRED TO 

MONOPOLIZE THE DOMESTIC FITTINGS MARKET BY 

EXCLUDING STAR 

I. COUNTS SIX AND SEVEN: MCWANE MONOPOLIZED 

OR ATTEMPTED TO MONOPOLIZE, THE MARKET FOR 

DOMESTIC FITTINGS 

J. CONCLUSION 

ATTACHMENT A – SUMMARY OF TELEPHONE RECORD EVIDENCE 

ATTACHMENT B – JANUARY 22, 2010 FTC LETTER TO McWANE 

COMPLAINT COUNSEL’S EXHIBIT INDEX 

COMPLAINT COUNSEL’S WITNESS INDEX 

xviii 
 

RECORD REFERENCES
 

PUBLIC RECORD

References to the record are made using the following citation forms and abbreviations: 

JX - Joint Exhibit 

CX - Complaint Counsel Exhibit (CX 1234 at 001). 

RX-- Respondent Exhibit (RX-123 at 0001). 

Tr. 0000 - Citations to Trial Testimony (Witness, Tr. 1234). 

(CX 0000 (Witness, Dep. at xx)) - Citations to Deposition Testimony 

(CX 0000 (Witness, Dep. at xx), in camera) - Citations to in camera Deposition Testimony 

(CX 0000 (Witness, IHT at xx)) - Citations to Investigational Hearing Testimony 

(CX 0000 (Witness, IHT at xx), in camera) - Citations to in camera Investigational Hearing 

Testimony 

Joint Stipulations of Law and Fact, JX 0001 ¶ - Citation to Joint Stipulations of Law and Fact 

Commission Complaint - Administrative Complaint filed January 4, 2012 

Response to RFA at ¶ - Citation to Respondent’s Response to Complaint Counsel’s Requests for 

Admission, dated June 8, 2012 

Supp. Response to RFA at ¶ - Citation to Respondent’s Supplemental Response to Complaint 

Counsel’s Requests for Admission, dated July 16, 2012 

Response to IROG at ¶ - Citation to Respondent’s Response to Complaint Counsel’s 

Interrogatories, dated February 21, 2012 

Answer at ¶ - Citation to Respondent’s Answer, dated February 2, 2012 

xix 
TABLE OF KEY DEFINED TERMS 

PUBLIC RECORD

Term Paragraph Number 

of Definition 

ACIPCO ¶ 177 

ARRA ¶ 1572 

AWWA ¶ 415 

Bradley Arant ¶ 366 

Buy American ¶ 1576 

C.I. Thornburg ¶ 344 

Dana Kepner ¶ 357 

DIFRA ¶ 363 

Distributors ¶ 472 

Domestic Fittings ¶ 447 

Domestic Fittings market ¶ 617 

Domestic-only Specification ¶ 448 

End Users ¶ 466 

Exclusive Dealing Policy ¶ 1824 

Fittings ¶ 1 

Fittings market ¶ 577 

Frazier & Frazier ¶ 247 

Glidewell ¶ 255 

Groeniger ¶ 317 

HHI ¶ 664a 

Mabry ¶ 261 

Master Distribution Agreement, or MDA ¶ 2168 

McWane ¶ 5 

xx 
 

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Term Paragraph Number 

of Definition 

NACIP ¶ 207 

Open Specification ¶ 450 

PCI ¶ 215 

Pinks ¶ 1007 

Project Pricing ¶ 549 

SDP ¶ 2174 

Sigma ¶ 55 

SIP or Serampore ¶ 216 

SPPR ¶ 1391 

SPR ¶ 1390 

SRHW ¶ 367 

Star ¶ 124 

Tatman Plan ¶ 911 

TDG ¶ 296 

TXX ¶ 9 

U.S. Pipe ¶ 221 

UECO ¶ 352 

WinWater ¶ 284 

xxi 
 

1 

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PROPOSED FINDINGS OF FACT 

Executive Summary 

a.	 McWane is the dominant supplier of ductile iron pipe fittings (“Fittings”1

) in the 

United States. Its primary competitors are Sigma and Star. Fittings are a small, but 

necessary part of any waterworks project: they connect pipes, hydrants, and valves 

and allow water flow to change directions. They are a commodity product sold to end 

users through Distributors who package them with pipe and other products necessary 

to complete a waterworks project. (See infra § 4). 

b.	 Fittings are a relevant product market. No other product is used as a substitute and 

other types of fittings do not constrain Fittings prices. Domestically produced 

Fittings, which are required for certain projects and are sold at substantially higher 

prices then imported Fittings, represent a separate price-discrimination market. The 

relevant geographic market is the United States. (See infra § 5). 

c.	 The Fittings market is conducive to collusion. The market is concentrated: the three 

major suppliers – McWane, Sigma and Star – sell over { }% of all Fittings. And, 

until 2009, McWane had a monopoly in the market for Domestic Fittings. Fittings 

are sold using transparent published prices, and Fittings suppliers announce price 

changes through widely circulated letters well in advance of their effective dates. 

Key executives from all three suppliers have frequent communications through inperson meetings, telephone calls and emails, and they are not shy about discussing 

Fittings prices and market conditions. Finally, all three suppliers, and McWane in 

particular, had compelling motives to conspire. (See infra § 6). 

d.	 Prior to 2008, McWane’s competitors, Sigma and Star, used their lower cost 

structure, and their larger and more nimble sales forces, to compete aggressively with 

McWane by offering negotiated discounts on individual waterworks projects. This 

Project Pricing made prices less stable and less transparent. As a result, McWane’s 

profit margins and market share were slowly shrinking. In late 2007, McWane 

conceived a plan to “drive stability and rational pricing” in the Fittings market. 

McWane explained its Plan by sending a tailored “Message to the Market & 

Competitors.” McWane made known that it would support price increases in stepped 

or staged increments, but only if Star and Sigma agreed to curtail discounts known as 

Project Pricing and to maintain prices that were reasonably stable and transparent. 

The plan, which was communicated by McWane using a customer letter and other 

means, required the three suppliers to curtail Project Pricing offered to the distributors 

of their products. Each of McWane, Sigma and Star made efforts to curtail Project 

Pricing. Pricing authority was centralized, and distributors were informed that 

Project Pricing would no longer be available. (See infra § 7). 

1

 Except where otherwise noted or where the context otherwise requires, the term “Fittings” will 

refer herein to ductile iron pipe fittings of 24” or less in diameter. 
PUBLIC RECORD

e.	 McWane, Sigma, and Star also agreed to establish a trade association, the “Ductile 

Iron Pipe Fittings Association.” Through DIFRA the three Fittings suppliers 

implemented an ongoing exchange of sales information that allowed each firm to 

monitor whether any future reductions in its own sales resulted from a declining 

overall market or from discounting below the consensus published prices, referred to 

as “cheating,” by the other suppliers. All three suppliers joined DIFRA. Once 

McWane, Sigma and Star had agreed on a format and schedule to exchange data 

through DIFRA, Sigma and Star announced Fittings price increases. McWane, 

announced through a coded letter to the market that it would not be announcing new 

prices until after the date on which it expected to receive the actual DIFRA report. 

Sigma and Star received McWane’s message, suspended their price increases, and 

submitted their data to DIFRA. On the very day DIFRA shared its first report with its 

members, McWane announced a price increase. Sigma and Star quickly followed 

suit. (See infra § 7). 

f.	 In February 2009, the American Recovery and Reinvestment Act became law. 

ARRA changed the Fittings market dynamics. It had a “Buy American” provision 

that required the $6 billion in funds it allocated to waterworks projects to be built 

with American-made goods. As the only Domestic Fittings manufacturer, McWane 

was in a unique position to reap the benefits. Star and Sigma worried they would be 

frozen out. They wanted to enter the Domestic market and compete for ARRAfunded projects. They were also concerned that general Buy American sentiment 

would further hurt their import business. So Star announced a plan to enter the 

Domestic market at an industry conference in June 2009, and Sigma likewise began 

to pursue entry. (See infra § 8). 

g.	 From at least 2006 until Star’s entry in late 2009, McWane was the only supplier of 

Domestic Fittings 24” and under. McWane was able to impose less favorable terms 

on Distributors and charge higher prices for Domestic Fittings than for otherwise 

identical imported Fittings. With the exception of Star and Sigma, there were no 

other potential entrants into the Domestic Fittings market. (See infra § 9). 

h.	 At a trade show in June 2009, Star announced it was entering the Domestic Fittings 

market. McWane feared that its higher priced and more profitable Domestic Fittings 

prices would get “creamed” by Star’s aggressive pricing. So McWane adopted an 

exclusive dealing policy with the specific intent to eliminate Star as a competitor in 

the Domestic Fittings market. McWane communicated its all-or-nothing policy to its 

customers and enforced it by cutting off Hajoca’s domestic supply when Hajoca’s 

Tulsa branch opted to buy domestic from Star. Many other Distributors – including 

the largest ones – feared losing access to McWane’s Domestic Fittings, and thus 

refused to purchase from Star, causing Star to lose sales and preventing it from 

growing and investing in its Domestic business. (See infra § 10). 

i.	 Sigma also announced it would enter the domestic market, but it pursued a twopronged approach: develop a network of virtual manufacturers, or negotiate a 

private-label deal with McWane. Sigma’s domestic production was “Priority One” 

and it poured significant resources into developing Domestic Fittings sources. Sigma 

2 
PUBLIC RECORD

had the motive, means and ability to enter the Domestic Fittings market. Instead, 

McWane entered into an anticompetitive agreement with Sigma to keep it out of the 

business of Domestic Fittings – and to source its supply of Domestic Fittings 

exclusively from McWane. Among other things, the agreement protected McWane’s 

published prices by largely preventing Sigma from discounting. At the same time, 

the agreement further hindered Star’s entry by requiring Sigma to jointly enforce the 

exclusive dealing policy that was preventing Distributors from buying Domestic 

Fittings from Star. (See infra § 11). 

j.	 McWane’s exclusive dealing policy and its MDA with Sigma allowed it to maintain 

monopoly power in the Domestic Fittings market. McWane sidelined Sigma and 

prevented Star from becoming a competitive threat. Having secured its monopoly 

position, McWane was then able to implement a price increase and reduce the rebates 

it offers on its Domestic Fittings. (See infra § 12). 

2 Jurisdiction 

2.	 At all times relevant herein, McWane has been, and is now, a corporation as 

“corporation” is defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 

44. (Joint Stipulations of Law, JX0001 ¶ 1). 

3.	 McWane’s acts and practices, including the acts and practices alleged herein, are in or 

affect commerce in the United States, as “commerce” is defined in Section 4 of the 

Federal Trade Commission Act, 15 U.S.C. § 44. (Answer at ¶ 10 (McWane sells Fittings 

in interstate commerce)). 

3 Fittings Industry Participants 

4.	 Sigma, McWane, and Star are competitors in the supply of Fittings in the United States. 

(Rybacki, Tr. 1087, 1098-1099; CX 2531 (Rybacki, Dep. at 278); infra § 4.4.1). 

3.1	 McWane, Inc. 

3.1.1	 Company Basics 

5.	 Respondent McWane, Inc. (“McWane”) is a corporation organized, existing and doing 

business under and by virtue of the laws of the State of Delaware, with its principal place 

of business located at 2900 Highway 280, Suite 300, Birmingham, Alabama 35223. 

(Answer at ¶ 8). 

6.	 McWane manufactures, imports, markets, and sells products for the waterworks industry, 

including Fittings. (Joint Stipulations of Fact, JX 0001 ¶ 1; Answer at ¶ 8). 

7.	 Phillip McWane is the owner of McWane. (Tatman, Tr. 218). 

8.	 McWane originally produced Fittings as part of its Tyler Pipe division. In a 2007 

corporate reorganization, McWane consolidated its Fittings business into the Tyler/Union 

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division. (Tatman, Tr. 209-213). As used herein, the term “McWane” may refer to 

McWane’s Tyler/Union division. 

9.	 McWane’s 2007 reorganization organized the business along product lines rather than 

geographic locations, putting all Fittings operations together. Mr. Tatman was made vice 

president and general manager of McWane’s Tyler/Union division, with responsibility 

for the Tyler South plant, Union Foundry, and Tyler Xian Xian (“TXX”), including 

McWane’s Fittings business. (Tatman, Tr. 212-214; CX 2484 (Tatman, Dep. at 10-12)). 

10.	 McWane produces Fittings at its domestic foundry, Union Foundry, in Anniston, 

Alabama, and since at least 2005, at its TXX foundry in China. McWane had also 

produced Fittings at its Tyler South Plant, in Tyler, Texas, until it closed that foundry in 

November 2008. (Tatman, Tr. 210-212). 

11.	 Since at least 2007 and until Star’s entry in 2009, McWane was the sole full-line supplier 

of Domestic Fittings sized 24” and below. (CX 2480 (Napoli, Dep. at 72); Supp. 

Response to RFA at ¶¶ 10, 11, 12). 

12.	 In 2009, McWane did not manufacture any Domestic Fittings larger than 30” in diameter 

at Union Foundry. Clow Water, another division of McWane, Inc., made 36” Fittings, 

and McWane sourced 42”-48” Fittings externally. (Tatman, Tr. 591-592). 

13.	 Based on DIFRA data for 2007 and 2008, the Clow Water division of McWane had an 

average 1.5% market share of United States Fittings sales by volume across all size 

categories. (CX 0656 at 003; Tatman, Tr. 593). 

15.	 McWane has tried, with varying degrees of success, to focus on plant work (flanged) 

Fittings. (Tatman, Tr. 228). Serving plant End Users requires a more involved materialsestimating process (referred to as “takeoffs”) that McWane is not equipped to do 

internally. (Tatman, Tr. 228). 

14.	 Based on DIFRA data for 2007 and 2008, Tyler/Union had an average 51.6% market 

share of United States Fittings sales by volume across all size categories. (CX 0656 at 

003; Tatman, Tr. 593). 

16.	 In 2007 and 2008, McWane’s sales force was half the size of the sales forces of Sigma 

and Star. (Tatman, Tr. 281-282). McWane’s sales force was not as nimble or as 

effective as the sales forces of Sigma and Star. (Tatman, Tr. 285-286). 

17.	 McWane’s gross profit for waterworks was { } for 2007, { } for 

2008, { } for 2009, { } through November 2010, and 

{ } for the first three months of 2011. (CX 2397 at 019 (2007), in camera; CX 

2416 at 040 (2008), in camera; RX-721 at 0050 (2009), in camera; RX-717 at 0038 

(through November 2010), in camera; RX-720 at 0036 (through March 2011), in 

camera). 

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3.1.2	 Key Employees 

3.1.2.1 Richard (Rick) Tatman 

18.	 Mr. Tatman joined McWane in May 2006 as the general manager of McWane’s Tyler 

Pipe division. (Tatman, Tr. 208-209). 

19.	 Following a 2007 reorganization of McWane’s Fittings business, Mr. Tatman became 

vice president and general manager in charge of McWane’s Tyler/Union division. 

(Tatman, Tr. 212-214). 

20.	 Mr. Tatman’s office is in Tyler, Texas. His office telephone number is { } 

His cell phone number is { } (Tatman, Tr. 207, 367; see also Rybacki, Tr. 

3647, in camera). Nobody other than Mr. Tatman answers his cell phone; his secretary 

sometimes answers his office phone. (Tatman, Tr. 208). 

21.	 In approximately July or August 2007 when the McWane reorganization was complete, 

Mr. Tatman reported to Mr. Walton and Mr. McCullough. (CX 2484 (Tatman, Dep. at 

10); Tatman, Tr. 216-217, 343). Since Mr. Walton’s departure from McWane in 2009, 

Mr. Tatman has reported directly to Mr. McCullough. (CX 2483 (Tatman, IHT at 10)). 

22.	 Since the McWane reorganization, Mr. Tatman has had day-to-day responsibilities for the 

Fittings division at McWane. (CX 2479 (McCullough, Dep. at 17)). 

23.	 In his new role, Mr. Tatman has been responsible for McWane’s Fittings pricing strategy. 

(Tatman, Tr. 253-254). He had previously not had involvement in Fittings pricing. 

(Tatman, Tr. 272). 

24.	 In his new role, Mr. Tatman would ordinarily discuss Fittings prices with Mr. 

McCullough. (Tatman, Tr. 218-219, 254). 

25.	 Because Fittings represent a small portion of McWane’s business, Mr. Tatman did not 

normally discuss Fittings pricing with Mr. Page. (Tatman, Tr. 218-219 (Page has “a lot 

bigger things to worry about than the fittings business”)). 

26.	 During the 2008-2009 time period, Mr. Tatman was responsible for McWane’s Fittings 

pricing strategy. (Tatman, Tr. 253-254). Mr. Tatman has ultimate responsibility for the 

pricing of Fittings sold through the Fittings division, including the authority to issue new 

list prices. McWane’s pricing letters were drafted and Reviewed by Mr. Tatman and Mr. 

Jansen. (CX 2479 (McCullough, Dep. at 21, 23) (noting that Mr. Tatman listens to any 

feedback on pricing from Mr. McCullough); Tatman, Tr. 218-219, 254, 306 (testifying 

that he ordinarily discusses Fittings pricing decisions with Mr. McCullough and drafts 

and reviews pricing letters along with Mr. Jansen)). 

27.	 During the 2008-2009 time period, Mr. Tatman, with input from McWane’s national 

sales manager, Jerry Jansen, also developed the sales strategy at McWane. (CX 2479 

(McCullough, Dep. at 18); CX 2477 (Jansen, Dep. at 154-155)). 

5 
3.1.2.2 Leon McCullough 

PUBLIC RECORD

28.	 Leon McCullough is an executive vice president of McWane in charge of its valve and 

hydrant group, as well as the waterworks Fittings division. (CX 2479 (McCullough, Dep. 

at 8, 15-17); Tatman, Tr. 217). 

29.	 Mr. McCullough has worked for McWane since 1973, and has been in his current 

position for 12-15 years. Mr. McCullough acquired responsibility for the Fittings 

division of McWane in 2007. (CX 2479 (McCullough, Dep. at 8, 16)). 

30.	 Mr. McCullough does not have day-to-day responsibilities on the operational side of 

McWane’s Fittings division, but provides strategic direction for the division. (CX 2479 

(McCullough, Dep. at 17)). 

31.	 Mr. Tatman reports to Mr. McCullough, who reports directly to Mr. Page. (CX 2479 

(McCullough, Dep. at 18-19)). 

3.1.2.3 Jerry Jansen 

32.	 Jerry Jansen is the national sales manager for Tyler Union. Mr. Jansen has worked for 

various McWane subsidiaries since 1979, and has been the national sales manager for 

Tyler/Union since August 2004. (CX 2477 (Jansen, Dep. at 10-11); Tatman, Tr. 219 

(describing Mr. Jansen as having a long history in the Fittings industry)). 

33.	 Mr. Jansen reports to Mr. Tatman. (CX 2477 (Jansen, Dep. at 12)). 

34.	 Mr. Jansen’s responsibilities include managing the Tyler Union’s sales team, as well as 

providing market reports and recommendations for market actions to his superiors. (CX 

2477 (Jansen, Dep. at 11)). Mr. Jansen also provides input on any new sales strategy, and 

is responsible for implementing those policies. (CX 2477 (Jansen, Dep. at 154-155)). 

3.1.2.4 Vincent Napoli 

35.	 Vincent Napoli is a pricing coordinator at McWane. He has held that position since it 

was first created in January 2008. (CX 2480 (Napoli, Dep. at 9-10, 35)). 

36.	 Mr. Napoli has worked for McWane since 1991 in a variety of positions, including as an 

inside sales manager, a national sales manager, a quality manager, in accounting, and as 

pricing coordinator. (CX 2480 (Napoli, Dep. at 9-10)). 

37.	 As quality manager, Mr. Napoli was responsible for all aspects of quality control, 

including internal audits, day-to-day quality supervision, inspection, and shipping 

inspections. Mr. Napoli continues to use his technical expertise in Fittings to answer 

field personnel questions relating to interpreting specifications, product usage, product 

applications, and product quality. (CX 2480 (Napoli, Dep. at 32-33, 50-51)). 

38.	 Mr. Napoli became the pricing coordinator in January 2008, and continues in that 

position today. (CX 2480 (Napoli, Dep. at 9-10)). 

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39.	 As pricing coordinator, Mr. Napoli has responsibility for approving Project Pricing for 

discounts of up to a couple of percentage points, and keeping track of annual bids and 

Project Pricing. (CX 2480 (Napoli, Dep. at 44-45, 47, 49-50) (explaining that his 

financial background allowed him to analyze pricing, and that he would seek approval 

from Mr. Jansen for any Project Pricing beyond two percentage points)). 

3.1.2.5 G. Ruffner Page III 

40.	 G. Ruffner Page III is the president and chief executive officer of McWane. (CX 2482 

(Page, Dep. at 12-14); Tatman, Tr. 218). 

41.	 Mr. Page became the president and chief executive officer of McWane in 1999. (CX 

2482 (Page, Dep. at 12-14); Tatman, Tr. 218). Previously, Mr. Page worked for 

McWane’s venture fund and bank, beginning in 1986. (CX 2482 (Page, Dep. at 12-14)). 

42.	 Mr. Page’s primary responsibilities as the CEO of McWane are to oversee the McWane 

family’s interests, and to provide top-level strategy, such as how to allocate capital, 

whether to build new plants, or whether to make any acquisitions or diversify any 

acquisitions. (CX 2482 (Page, Dep. at 14-15)). 

43.	 Generally, Mr. Page is not actively involved with in McWane’s day-to-day Fittings 

business and can go weeks without speaking to Mr. McCullough, and “never” talks to 

Mr. Tatman except for general manager’s meetings. (CX 2482 (Page, Dep. at 44-46); 

Tatman, Tr. 218-219). 

3.1.2.6 David Green (former employee) 

44.	 Until 2007, Mr. Green was in charge of McWane’s Fittings business. Mr. Green was the 

executive vice president of McWane’s soil pipe utility division, with responsibility for 

the Tyler Pipe, Union, Bibby, and AB&I subsidiaries, along with rubber couplings. 

(Tatman, Tr. 210-211). 

45.	 In 2007, Mr. Page responded to McWane’s lagging Fittings performance by firing Mr. 

Green and restructuring the McWane Fittings business. (Tatman, Tr. 212; CX 2118 at 

001; Pais, Tr. 1882-1883, 1892 (describing September 2007 meeting with Page); CX 

2528 (Pais, Dep. at 205-210) (Page told Pais that the rationale for the restructuring was 

that Tyler’s volume and profits were down)). 

3.1.2.7 Charles F. Nowlin 

46.	 Charles F. Nowlin is the senior vice president and chief financial officer of McWane, and 

has been at the company since 1980. (CX 2481 (Nowlin, Dep. at 7); Tatman, Tr. 215). 

Mr. Nowlin oversees all financial reporting for McWane, including “blue books,” income 

statements, balance sheets, and sales and gross profit analyses. (CX 2481 (Nowlin, Dep. 

at 8-9, 15). 

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3.1.2.8 Thomas Walton (former employee) 

47. Mr. Walton began working at a division of McWane, Inc. as a management trainee in 

1991. Mr. Walton was promoted throughout McWane’s valve and hydrants business 

until becoming vice president and general manager of McWane’s M&H and Kennedy 

Valve divisions in 2001. In late 2007, Mr. Walton was promoted to senior vice president, 

where he gained responsibilities for McWane’s Fittings division for the first time. (CX 

2485 (Walton Dep. at 8-9, 17-18)). 

48.	 As senior vice president overseeing the Fittings division, Mr. Walton had ultimate 

responsibility for operations and sales, and participated in strategic decisions. Mr. 

Walton reported directly to Mr. McCullough, and Mr. Tatman reported to Mr. Walton. 

(CX 2485 (Walton Dep. at 18-19)). 

49.	 McWane asked Mr. Walton to leave the company in April 2010. (CX 2485 (Walton, 

Dep. at 21-23) (explaining that McWane “was good to me. I learned a lot, and I feel 

fortunate to have had those opportunities, so no I don’t harbor any resentments against 

anybody.”)). 

3.1.2.9 John Springer 

50.	 In the 2008-2009 time period, John Springer was the controller for Tyler Pipe and 

Tyler/Union, and was responsible for publishing McWane’s “blue books.” (Tatman, Tr. 

818). 

51.	 {

 (Tatman, Tr. 844-845, in 

camera, 497-498); see e.g., CX 2416, in camera { 

. 

3.1.2.10 Laura Alvey 

52.	 Laura Alvey is an administrative assistant at McWane. (Tatman, Tr. 208). 

53.	 Ms. Alvey was in McWane’s sales department from 1995 to 2001. In 2001, she was 

promoted to her current position, administrative assistant for the general manager, Mr. 

Tatman, and Mr. Jansen. (RX-636 (Alvey, Dep. at 7); CX 2476 (Alvey, Dep. at 7-8)). 

54.	 Ms. Alvey’s responsibilities include compiling the Tyler Union Monthly Sales Reports, 

the Weekly Highlight Report, the Weekly Competitive Feedback Report (including the 

Domestic Activity Report), the DIWF [Fittings] report, and the Nondomestic versus 

Domestic Report, and the DIWF Nondomestic Pricing by Month for Mr. Tatman or Mr. 

Jansen. (CX 2476 (Alvey, Dep. at 10-13)). 

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3.2	 Sigma 

3.2.1	 Company Basics 

55.	 Since about 1985, Sigma Corporation (“Sigma”) has imported and sold Fittings and other 

waterworks products in the United States. (Joint Stipulations of Fact, JX 0001 ¶ 2; Pais, 

Tr. 1722-1723). Sigma’s headquarters are in Cream Ridge, New Jersey. (Rybacki, Tr. 

1090). 

56.	 Fittings are Sigma’s main product line, and comprised approximately 40% of Sigma’s 

business in the 2008-2009 time period. (Rybacki, Tr. 1090-1091; Pais, Tr. 1731 (in 2008 

and 2009, Fittings were Sigma’s largest-selling product, accounting for 40-45% of 

revenues)). Sigma currently sells approximately 3,000 distinct Fittings items (or SKUs). 

(Pais, Tr. 1723). 

57.	 Sigma’s current sales are approximately $200-210 million annually. (Pais, Tr. 1722). In 

2007, 2008 and 2009, Sigma’s net sales were { } million, 

respectively. (CX 2026 at 066, in camera). Sigma has approximately 250 to 260 

employees. (Pais, Tr. 1722). 

58.	 On October 10, 2007, the Frontenac Group purchased a 60% ownership interest of 

Sigma. (Pais, Tr. 1725; Rybacki, Tr. 1084; CX 2523 (Bhattacharji, Dep. at 8)). Walter 

Florence is a Frontenac managing director and a member of Sigma’s board of directors. 

(CX 2523 (Bhattacharji, Dep. at 152, 197-198 (also identifying Hancock Financial as an 

indirect shareholder of Sigma through Frontenac)). 

59.	 Sigma imports Fittings from China, India, and Mexico. (CX 2524 (Box, Dep. at 16); 

Pais, Tr. 1731-1732 (all Fittings Sigma sold in 2008 were manufactured by its “virtual 

manufacturing” partners in China, India and Mexico)). 

60.	 Sigma has used a “virtual manufacturing” model for over twenty years. (CX 2530 (Rona, 

Dep. at 211-216)). In other words, Sigma is responsible for all the technical know-how 

that goes into producing its Fittings, but the Fittings are actually made overseas at 

foundries in China, Mexico and India. Sigma handles administration, engineering, 

drawings, inspection, testing, quality control, and transportation, and has engineering 

groups in China and India. (Rybacki, Tr. 1092, 1094; see also Pais, Tr. 1732 (“virtual 

manufacturing” meant that Sigma “did not own any manufacturing facilities ourselves, 

but then we owned all other responsibilities of design, quality control, supply chain 

planning, product approval, et cetera”); Rona, Tr. 1466-1467 (“virtual manufacturing” 

involves “developing relationships with suppliers, partnering, sharing some expense, but 

not actually owning the foundry on a total basis”)). 

61.	 Sigma also sourced a small portion of its Fittings from McWane. (Pais, Tr. 1731). 

62.	 Sigma’s “OEM” business involves the sale of products to “original equipment 

manufacturers” (as opposed to Distributors), including pipe, valve, and hydrant 

manufacturers and other Fittings suppliers. Sigma’s OEM business sells some products 

unrelated to waterworks, as well as parts used for assembly of waterworks valves and 

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hydrants, and both industry standard and proprietary Fittings to companies in the 

waterworks industry, such as U.S. Pipe. (Rona, Tr. 1440-1441; Rybacki, Tr. 1095; 

Brakefield, Tr. 1215). 

63.	 Sigma’s OEM business in 2008 had approximately $50 million in sales to customers such 

as McWane, U.S. Pipe, ACIPCO, Griffin, and Star. (Rona, Tr. 1440-1442) (noting OEM 

customers included valve, hydrant, pump and agriculture suppliers)). Sigma’s OEM 

business accounted for approximately 10% of its sales of Fittings. (Rona, Tr. 1442; CX 

2530 (Rona, Dep. at 24-25)). 

64.	 Star and McWane were much smaller customers (in terms of sales) of Sigma’s OEM 

business than ACIPCO and U.S. Pipe. (Rona, Tr. 1444-1445). 

65.	 Sigma has approximately 23 territory sales managers across the United States, and 

approximately 25 inside customer service personnel supporting the sales force. (Rybacki, 

Tr. 1089-1090). 

66.	 Sigma has five regional managers, who manage the outside Fittings sales force: Al 

Richardson (southwest), Dave Pietryga (midwest), Greg Fox (southeast), Mike 

Walsh (northeast and Eastern Canada), and Chris King (northwest). (Rybacki, Tr. 1090, 

1093). 

67.	 Beginning in September 2009, Sigma began selling Domestic Fittings that it sourced 

from McWane. (CX 0803 at 001). In 2010, Sigma sold over { } of Domestic 

Fittings. (CX 2026 at 029, in camera). 

3.2.2	 Key Employees 

3.2.2.1 Victor Pais 

68.	 Victor Jerome Pais was one of the founders of Sigma in 1985. (Pais, Tr. 1721-1722; 

Rybacki, Tr. 1085). Mr. Pais worked for Star before founding Sigma. (Rybacki, Tr. 

1117-1118; Pais, Tr. 1860-1862). 

69.	 Mr. Pais currently owns approximately 6% to 7% of Sigma. (Pais, Tr. 1726; Rybacki, Tr. 

1085). In 2008 Mr. Pais’s ownership share in Sigma was 1-2 percentage points higher. 

(Pais, Tr. 1726). Prior to Frontenac’s purchase of Sigma in 2007, Mr. Pais held an 18% 

share. (CX 2527 (Pais, IHT at 19)). 

70.	 Mr. Pais is a current member of Sigma’s board, and was also a member in 2008 and 

2009. (Pais, Tr. 1725). 

71.	 In the 2008-2009 time period, Mr. Pais was the president and CEO of Sigma. (Rybacki, 

Tr. 1085; Pais, Tr. 1723). 

72.	 Mr. Pais was succeeded as CEO by Jim McGivern, who was selected by Frontenac, first 

joined Sigma in July 2009, and gradually took over aspects of the business. (Pais, Tr. 

1723-1724, 1772-1773). 

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73.	 Mr. Pais stepped down as president and CEO of Sigma in January 2010. (Pais, Tr. 1725). 

Mr. Pais remains an employee of Sigma. (Pais, Tr. 1721). 

74.	 Mr. Pais’s responsibilities in 2008 and 2009 included growing Sigma Corporation, 

monitoring profits and costs, helping the supply chain, and setting strategy relating to 

growth and profitability, including pricing strategy. (Pais, Tr. 1724-1725; CX 2528 

(Pais, Dep. at 192-193)). 

75.	 Mr. Pais was actively involved in Sigma’s Fittings pricing strategy and would discuss 

pricing strategy with Mr. Rybacki and others at Sigma. (CX 2528 (Pais, Dep. at 193­

194) (“Q. And one of the ways in which you guided the team to maximize profitability 

was to discuss price increases with folks like Larry Rybacki; correct? A. Larry and 

several others on our team.”)). 

76.	 Mr. Pais’s role at Sigma was as a “visionary” and “idea factory,” and he was involved in 

everything, including product procurement, administration and sales. (Rybacki, Tr. 

1086). He was viewed as the head of the company. (Rybacki, Tr. 1086-1087). 

3.2.2.2 Siddarth Bhattacharji 

77.	 Siddarth Bhattacharji worked for Star before founding Sigma. (Rybacki, Tr. 1117-1118; 

Pais, Tr. 1860-1862). 

78.	 Mr. Bhattacharji became executive vice president of Sigma following Frontenac’s 

acquisition of interest in Sigma in 2007. Mr. Bhattacharji had been vice president of 

Sigma from its founding in 1985. (CX 2523 (Bhattacharji, Dep. at 8-11)). 

79.	 During 2008 and 2009, as executive vice president of Sigma, Mr. Bhattacharji was 

responsible for engineering and supply chain. (CX 2523 (Bhattacharji, Dep. at 8-9); 

Rybacki, Tr. 1087 (During the 2008-2009 time period Mr. Bhattacharji was involved in 

engineering, quality control, product procurement, inventory, and finance)). 

80.	 Mr. Bhattacharji is not an engineer himself. (CX 2523 (Bhattacharji, Dep. at 11-12)). 

81.	 Mr. Bhattacharji is a shareholder of Sigma, owning less than 10% of the company, and 

the Secretary of the Sigma board of directors. (CX 2523 (Bhattacharji, Dep. at 9-10, 

23)). 

3.2.2.3 Lawrence (Larry) Rybacki 

82.	 Larry Rybacki is the president of Sigma, and has held that position since approximately 

August of 2011. (Rybacki, Tr. 1082). 

83.	 Mr. Rybacki owns about 3.5% of Sigma’s shares. (Rybacki, Tr. 1085). 

84.	 Mr. Rybacki’s office is in Northborough, Massachusetts. (Rybacki, Tr. 1083). 

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85.	 Mr. Rybacki’s office phone number is { }. (Rybacki, Tr. 1083; Rybacki, 

Tr. 3647, in camera;). Mr. Rybacki’s cell phone number is { }, and is not 

ordinarily used by anyone else. (Rybacki, Tr. 1083-1084). 

86.	 Prior to becoming president of Sigma, Mr. Rybacki was Sigma’s vice president of sales 

for 21 years. (Rybacki, Tr. 1082). 

87.	 In the 2008-2009 time period Mr. Rybacki was vice president of sales for Sigma, 

responsible for Fittings sales to Distributors (as distinct from OEM customers), all of 

Sigma’s warehouses, regional managers, and outside salespeople reported to him. 

(Rybacki, Tr. 1086; Rona, Tr. 1453-1454). 

88.	 Mr. Rybacki had authority over Sigma’s pricing decisions, with input from Mr. Pais and 

Mr. Bhattacharji. (Brakefield, Tr. 1332; Rybacki, Tr. 1095-1096; CX 2530 (Rona, Dep. 

at 198)). 

89.	 Mr. Rybacki and Mr. Pais would be responsible for drafting list price and price multiplier 

change letters to customers, which would be sent to customers by regional managers 

under Mr. Rybacki’s signature. (Rybacki, Tr. 1099-1100). 

90.	 It was Mr. Rybacki’s practice, before sending out a price increase announcement, to share 

a draft with Sigma’s top 20 managers and get feedback. (Rybacki, Tr. 3489-3491) 

(discussing sending CX 1413 to M20 email group)). 

91.	 Sigma’s regional managers sometimes discuss project pricing requests with Mr. Rybacki. 

(Rybacki, Tr. 3527-3528). 

92.	 Evaluating Sigma’s Domestic Fittings entry was not Mr. Rybacki’s area of expertise. 

Others at Sigma were involved in the “SDP” Domestic entry effort. (CX 2531 (Rybacki, 

Dep. at 129-130)). 

93.	 Mr. Rybacki was not a member of “Sigma’s Domestic Production” team (SDP). (CX 

2530 (Rona, Dep. at 229-230); Rybacki, Tr. 3726). 

94.	 Mr. Rybacki testified that he has not had any antitrust training in the last 10 or 15 years. 

(CX 2531 (Rybacki, Dep. at 294-295) (testifying that it has been “Oh, God, 10, 15 years, 

maybe”)). 

95.	 Mr. Rybacki testified at trial with awareness that Sigma is a defendant in class action 

litigation in New Jersey arising out of the same facts as those involved in this proceeding, 

and with the awareness that the outcome in this proceeding could have implications for 

that litigation. (Rybacki, Tr. 3484-3486). 

3.2.2.4 Mitchell Rona 

96.	 Mitchell Rona has worked for Sigma since September 1988. (Rona, Tr. 1438). 

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97.	 In July 2011, Mr. Rona was promoted to Sigma’s vice president of operations. (Rona, Tr. 

1438). Mr. Rona currently reports to Sigma’s CEO, Jim McGivern. (Rona, Tr. 1439). 

As vice president of operations, Mr. Rona oversees Sigma’s engineering and IT 

departments, manages global supplier relationships, controls inventory and supply chain, 

and runs Sigma’s OEM business. (Rona, Tr. 1438-1439). 

98.	 From about 1999 through July 2011, Mr. Rona was Sigma’s OEM business manager, 

reporting to Mr. Pais. (Rona, Tr. 1439-1440). 

99.	 Mr. Rona worked on the Sigma Domestic Production (SDP) team, along with Stuart Box, 

Gopi Ramanathan, Victor Pais and Siddarth Bhattacharji. (CX 2530 (Rona, Dep. at 40­

41)). A significant amount of Mr. Rona’s time was absorbed by Sigma’s SDP activities 

and his negotiation of the MDA with McWane. (Rona, Tr. 1562-1564). 

100.	 Mr. Rona was significantly involved in the MDA negotiations between Sigma and 

McWane as the Sigma contact point for negotiations. His level of involvement 

diminished somewhat following execution of a letter of intent for the MDA, but he 

continued to play a liaison role interacting with McWane, even after the MDA was 

signed and went into the operation phase. (Rona, Tr. 1562-1571; CX 1436 at 001-002 

(Tatman email to Rona establishing “rules of play” for day-to-day execution of the 

MDA)). 

101.	 Mr. Rona was a Sigma sales representative and regional manager from 1988 to 1998. 

(Rona, Tr. 1439). Mr. Rona is also a shareholder of Sigma. (CX 2523 (Bhattacharji, 

Dep. at 9-10)). 

3.2.2.5 Jim McGivern 

102.	 Jim McGivern succeeded Mr. Pais as CEO of Sigma. Mr. McGivern was selected by 

Frontenac, first joined Sigma in July 2009, and gradually took over aspects of the 

business. (Pais, Tr. 1723-1724, 1772-1773). 

103.	 By June 2010, Mr. McGivern was acting as CEO of Sigma. (Rybacki, Tr. 3490-3491). 

3.2.2.6 Tommy Brakefield 

104.	 Tommy Eugene Brakefield is currently a Fittings consultant for McWane’s pipe division 

under Jeff Otterstedt and Dennis Charko of McWane, and the executive director of the 

National Association of Pipe Fabricators. (Brakefield, Tr. 1212-1213). 

105.	 Mr. Brakefield was the national sales manager at Sigma Corporation from November 

2003 through December 2011. (Brakefield, Tr. 1214). 

106.	 Although Mr. Brakefield’s title never changed, his responsibilities evolved over time. In 

2005, Mr. Brakefield’s responsibilities shifted predominantly to consulting for Sigma’s 

OEM business rather than dealing with Sigma’s distribution business. From about 2005 

to 2008, Mr. Brakefield’s role at Sigma was as an “OEM consultant” with Mr. Rona, 

focused on non-Distributor OEM Fittings customers. (Brakefield, Tr. 1214-1216). 

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107.	 From 2008 to December 2011, Mr. Brakefield took on a “special projects” role for 

Sigma, reporting to Larry Rybacki, the vice president of sales, and taking on projects for 

Mr. Rybacki, Mr. Pais, Mr. Bhattacharji, or Mr. McGivern. (Brakefield, Tr. 1214, 1216­

1217). 

108.	 Mr. Brakefield’s background is in pipe, and he was vice president of sales and marketing 

at U.S. Pipe before his employment at Sigma. (Brakefield, Tr. 1219-1220; CX 2496 

(Brakefield, Dep. (Vol. 2) at 9-10)). 

109.	 In 2005, Mr. Pais approached Mr. Brakefield and asked him if he knew anything about 

how to start a trade association. This was Mr. Brakefield’s first involvement in 

conversations about DIFRA. (Brakefield, Tr. 1220). 

110.	 Mr. Brakefield then became involved with organizing DIFRA on Sigma’s behalf. 

(Brakefield, Tr. 1220-1221). 

111.	 Mr. Brakefield was Sigma’s “point person” on DIFRA. (Rybacki, Tr. 3546-3547). He 

became DIFRA’s president in January 2007, and was the first and only president of 

DIFRA. (Brakefield, Tr. 1221-1222, 1227). 

3.2.2.7 Stuart Box 

112.	 Stuart Jackson Box was Sigma’s OEM operations manager from May 2007, when he 

started with the company, until July 2011. (CX 2524 (Box, Dep. at 8)). As OEM 

operations manager, Mr. Box reported to Mitchell Rona and had responsibility for 

customizing Fittings for Sigma OEM customers. (CX 2524 (Box, Dep. at 11, 12)). Mr. 

Box was promoted to Sigma’s director of engineering in July 2011. (CX 2524 (Box, 

Dep. at 7-8)). 

113.	 Prior to joining Sigma, Mr. Box held positions as plant manager and manufacturing 

manager at foundries for Mueller Water Company, the parent of U.S. Pipe. (CX 2524 

(Box, Dep. at 9-10)). 

114.	 Mr. Box was involved in Sigma’s decision to explore the feasibility of production of 

Domestic Fittings, and in carrying out that evaluation through Sigma’s “SDP” project. 

(CX 2524 (Box, Dep. at 20-22)). 

115.	 Mr. Box was not involved in negotiating the MDA, but was aware that MDA negotiations 

were ongoing while he investigated Sigma Domestic Production. (CX 2524 (Box, Dep. 

at 62-63)). 

116.	 Mr. Box was responsible for making sure that Fittings Sigma received from McWane met 

specification. (CX 2524 (Box, Dep. at 67-68)). 

3.2.2.8 Other Employees 

117.	 George Liu (Liuguang) is Sigma’s production manager for China. (Pais, Tr. 1853). Yin 

Baohai is the owner of the Sigma’s primary Fittings supplier in China, which Sigma 

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refers to as “A1,” and Yin Zhenhao is his son. (Pais, Tr. 1881-1882; CX 2118 at 001). 

Iona Shenoy is an executive secretary at Sigma Corporation. (Rybacki, Tr. 3494). 

3.2.3	 Sigma Email Distribution Lists 

118.	 Sigma’s M20 e-mail distribution list was a distribution list for Sigma’s approximately top 

20 managers. (Pais, Tr. 1750; Rybacki, Tr. 3490). Mr. Brakefield was a member of the 

M20 email distribution list. (Brakefield, Tr. 1218). 

119.	 Sigma’s RM6 email distribution list included Sigma’s regional managers and Mr. Rona. 

(Brakefield, Tr. 1218-1219). 

120.	 Sigma’s M11 email distribution group is comprised of approximately 11 or 12 Sigma 

managers, including regional managers, and senior managers such as Mr. Pais, Mr. 

Bhattacharji, Mr. McGivern, Mr. Rybacki, and Mr. Brakefield. (Pais. Tr. 1837-1838; 

Brakefield, Tr. 1219). 

121.	 Sigma’s M3 e-mail distribution list included Mr. Bhattacharji, Mr. Pais and Mr. Rybacki, 

and then Mr. McGivern when he joined Sigma. (CX 2527 (Pais, IHT at 14)). 

122.	 Sigma’s OEM5 email distribution list included Mr. Pais, Mr. Bhattacharji, Mr. Rybacki, 

Mr. Brakefield, and Mr. Rona. (Rona, Tr. 1491). 

123.	 Sigma’s SIGALL email distribution list included the entire Sigma team. (Pais, Tr. 1790). 

3.3	 Star 

3.3.1	 Company Basics 

124.	 Star Pipe Products Ltd. (“Star”) imports and sells Fittings and other waterworks products. 

(Joint Stipulations of Fact, JX 0001 ¶ 3; Answer at ¶ 11; Minamyer, Tr. 3131-3132 

(identifying Star’s three divisions to be waterworks, plumbing, and fire protection)). 

125.	 Star was founded in 1981, and it has sold Fittings since approximately 1985. (RX-694 

(Bhutada, Dep. at 6, 7)). Star’s current annual revenues are approximately $135 million. 

(McCutcheon, Tr. 2250). Star has approximately 300 employees. (McCutcheon, Tr. 

2249). 

126.	 In 2007 and 2008, Star’s waterworks division sold Fittings, joint restraints, municipal 

construction castings, nuts and bolts, flanges, flange packs, and accessories. (Minamyer, 

Tr. 3129-3131; McCutcheon, Tr. 2249 (noting that Star’s waterworks division also sells 

manhole rings and covers, and valve boxes)). 

127.	 In 2007 and 2008, Star’s main product was Fittings, and accounted for approximately 

50% of Star’s annual revenues. (Minamyer, Tr. 3132-3133; McCutcheon, Tr. 2250). 

128.	 Beginning in 2009, Star has contracted with foundries in the United States to manufacture 

Domestic Fittings. (Joint Stipulations of Fact, JX 0001 ¶ 4). 

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129.	 Star has a controlling interest in Chinese foundries that manufacture Fittings for Star, but 

does not own, in whole or in part, any of the US foundries that produce Fittings on Star’s 

behalf. (McCutcheon, Tr. 2251-2252). 

130.	 Prior to 2009, Star did not sell Domestic Fittings, and had not considered selling 

Domestic Fittings. It sold only imported Fittings. (CX 2533 (Bhargava, Dep. at 11); see 

also McCutcheon, Tr. 2267 (Star’s Fittings were not bid on Domestic-only Fittings jobs 

before 2009); Minamyer, Tr. 3136 (in 2008, Star could not meet any specification 

requiring Domestic Fittings)). 

131.	 Star does not have any joint ventures with, or ownership interests in, any foundries in the 

United States. (McCutcheon, Tr. 2251-2252). 

132.	 Star imports Fittings manufactured at five foundries in China. (RX-694 (Bhutada, Dep. 

at 8)). Star does not own the foundries in China. (CX 2539 (McCutcheon, Dep. at 8); 

RX-694 (Bhutada, Dep. at 8) (explaining that Star operates two of the five foundries as 

joint ventures)). 

133.	 Star is responsible for quality assurance and quality control in Fittings production at both 

the domestic and foreign foundries from which it obtains Fittings. (Bhargava, Tr. 2924­

2926, 2936; CX 2533 (Bhargava, Dep. at 13)). “Quality assurance” involves establishing 

the production processes at the foundry necessary to assure the quality of the product. 

(Bhargava, Tr. 2936; CX 2533 (Bhargava, Dep. at 13)). “Quality control” involves 

conducting routine reviews, after production, to determine that the product meets the 

specifications. (Bhargava, Tr. 2924; CX 2533 (Bhargava, Dep. at 14)). 

134.	 In the 2007 to 2009 time frame, Star’s waterworks division had an outside sales force of 

approximately 22 sales representatives (territory managers) and approximately six 

division managers, who supervised the territory managers. (Minamyer, Tr. 3129-3132, 

3178; McCutcheon, Tr. 2253). 

135.	 In 2008, Star also had an inside sales force of approximately 15 people. (McCutcheon, 

Tr. 2253-2254; Minamyer, Tr. 3132). Star’s inside sales force oversees customer service, 

including checking inventory, fielding inquiries, and arranging shipping. (McCutcheon, 

Tr. 2253-2254). 

136.	 Star has 12 distribution centers throughout the United States where it stocks product in 

order to provide faster delivery times to its customers. (McCutcheon, Tr. 2264-2265) 

(Star stocks Fittings at its headquarters in Houston and 13 other locations in North 

America); CX 2535 (Bhutada, Dep. at 10) (identifying Star’s United States distribution 

centers in Seattle, Washington; Salt Lake City, Utah; Sacramento, California; Corona, 

California; Phoenix, Arizona; Indianapolis, Indiana; Kansas City, Missouri; Houston, 

Texas; Atlanta, Georgia; Orlando, Florida; and Richmond, Virginia)). 

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3.3.2	 Key Employees 

137.	 Star Pipe’s management team consists of three key people – Mr. Bhutada, Mr. 

McCutcheon, and Mr. Bhargava. Most of Star’s major decisions are made by consensus 

of those three people. (Bhargava, Tr. 2926-2927). 

3.3.2.1 Daniel McCutcheon 

138.	 Daniel Ward McCutcheon has been employed by Star since approximately 1995. (CX 

2537 (McCutcheon, IHT (Vol. 1) at 6); McCutcheon, Tr. 2247 (Mr. McCutcheon has 

been employed by Star for 16 years)). 

139.	 Mr. McCutcheon is currently the president of Star, and has held that position since the 

beginning of 2012. (McCutcheon, Tr. 2246-2247; CX 2539 (McCutcheon, Dep. at 6)). 

140.	 Before becoming Star’s president, Mr. McCutcheon was the vice president of sales and 

operations at Star for 14 years, reporting to Mr. Bhutada. (McCutcheon, Tr. 2247; CX 

2537 (McCutcheon, IHT (Vol. 1) at 6)). In that position, Mr. McCutcheon was 

responsible for all sales, marketing, sales strategies, operations, and the distribution 

center operations. (CX 2537 (McCutcheon, IHT (Vol. 1) at 7)). In that position, Mr. 

McCutcheon also had responsibility for sales of Fittings. (CX 2537 (McCutcheon, IHT 

(Vol. 1) at 7)). Mr. McCutcheon managed the sales department and Star’s distribution 

centers. Star’s outside and inside sales forces reported up to Mr. McCutcheon. 

(McCutcheon, Tr. 2254). 

141.	 In 2008 and 2009, Mr. McCutcheon and Mr. Bhutada together were responsible for 

setting Star’s pricing strategy. (McCutcheon, Tr. 2252; CX 2538 (McCutcheon, IHT 

(Vol. 2) at 398)). 

142.	 Mr. McCutcheon’s email address at Star Pipe Products is danm@starpipeproducts.com. 

Mr. McCutcheon, who uses the email address in the normal course of business, is the 

only person with access to that email address. (CX 2538 (McCutcheon, IHT (Vol. 2) at 

216)). 

143.	 Mr. McCutcheon’s office phone numbers are 

Mr. McCutcheon’s cell phone for business purposes is { }.

(McCutcheon, Tr. 2248). That line is answered by Star’s receptionist 

Calls to Mr. McCutcheon also come through Star’s toll-free number, 

phone is occasionally answered by his assistant Sue Palmer. (McCutcheon, Tr. 2248,

{ } and { } His.

2467, in camera). 

800-999-3009. 

Janet Garey. 

(McCutcheon, Tr. 2248, 2438, in camera). Nobody but Mr. McCutcheon answers his 

cell phone. (McCutcheon, Tr. 2249). 

144.	 {

 (McCutcheon, Tr. 2502-2503, in camera). 

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145.	 In 2003, Mr. McCutcheon testified before the International Trade Commission in a 

proceeding relating to a McWane “all or nothing” rebate policy in the non-Domestic 

Fittings market. At the time that the McWane policy at issue in that proceeding came 

into effect, Star had been supplying Fittings in the United States for about 5 to 10 years. 

(McCutcheon, Tr. 2579-2580, 2662-2663). 

3.3.2.2 Matthew Minamyer (former employee) 

146.	 Matthew Patrick Minamyer is currently the national sales manager for the Piping 

Products Division of Sigma (which includes Sigma’s Fittings business), and he has held 

that position since July 2009. (Minamyer, Tr. 3127-3128; CX 2525 (Minamyer, IHT at 

5)). 

147.	 From approximately 2004 until he joined Sigma in July 2009, Mr. Minamyer was Star’s 

national sales manager, with responsibility for managing Star’s sales force, interfacing 

with customers, and increasing Star’s sales. (McCutcheon, Tr. 2254; Minamyer, Tr. 

3128; CX 2525 (Minamyer, IHT at 5)). 

148.	 From approximately 1999 through 2005, Mr. Minamyer was a territory manager 

(December 1999 through mid-2000) and a division manager (mid-2000 through mid2004) at Star. (Minamyer, Tr. 3128-3129; CX 2525 (Minamyer, IHT at 6-7); CX 2526 

(Minamyer, Dep. at 9-10)). 

149.	 As Star’s national sales manager in 2007 and 2008, Mr. Minamyer reported to Dan 

McCutcheon. (Minamyer, Tr. 3130; CX 2526 (Minamyer, Dep. at 11-12)). Mr. 

McCutcheon’s and Mr. Minamyer’s offices were close enough that they could speak to 

one another in the hallway. (McCutcheon, Tr. 2254-2255). 

150.	 When Mr. Minamyer was the national sales manager for Star’s waterworks division, only 

the waterworks division sales force reported to him. (Minamyer, Tr. 3131-3132). Mr. 

Minamyer had six division managers reporting to him, covering five territories within the 

United States and one in Canada. (Minamyer, Tr. 3130). 

151.	 When Mr. Minamyer was national sales manager at Star, Mr. Minamyer and Mr. 

McCutcheon were in charge of setting and changing Star’s list prices and multipliers and 

approving multiplier letters. (Minamyer, Tr. 3139, 3142; CX 2526 (Minamyer, Dep. at 

99-100) (Mr. Minamyer and Mr. McCutcheon shared responsibility for changing list 

prices or published multipliers). Mr. Minamyer typically had the responsibility for 

approving individual instances of Project Pricing. (CX 2526 (Minamyer, Dep. at 99) 

(Mr. Minamyer typically had decision-making authority on pricing, but for list price or 

multiplier changes)). 

3.3.2.3 Ramesh Bhutada 

152.	 Ramesh Bhutada was the president and chief executive officer of Star from 1981 until 

approximately November 2011. Since November 2011, Mr. Bhutada has been chief 

executive officer of Star. (CX 2534 (Bhutada, IHT at 6); CX 2535 (Bhutada, Dep. at 5)). 

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153.	 In 2008 and 2009, Mr. Bhutada was responsible, together with Mr. McCutcheon, for 

setting Star’s pricing strategy. (McCutcheon, Tr. 2252; CX 2538 (McCutcheon, IHT 

(Vol. 2) at 398)). 

3.3.2.4 Navin Bhargava 

154.	 From 2003 to the present, Navin Bhargava has been a vice president, and later an 

executive vice president, of Star, with responsibility for sourcing, inventory, engineering, 

quality control, and new product development. (Bhargava, Tr. 2917-2919, 2921; CX 

2533 (Bhargava, Dep. at 7-8)). 

155.	 Mr. Bhargava has a Bachelor’s degree in Mechanical Engineering and a Master’s degree 

in industrial engineering. (Bhargava, Tr. 2917). 

156.	 Mr. Bhargava began at Star as a product manager in 1994, responsible for inventory 

planning and sourcing foundries for manufacturing. (Bhargava, Tr. 2918). 

157.	 Mr. Bhargava was Star’s purchasing manager from 1996 to 1998. In this role, Mr. 

Bhargava was also responsible for sourcing and supervising foundries that manufactured 

Star’s products. (Bhargava, Tr. 2918-2919, 2920). 

158.	 Mr. Bhargava was Star’s director of manufacturing in 1998 until approximately 2003. 

His responsibilities in this role related to expanding Star’s manufacturing, and Star was 

manufacturing in South America, Korea, China, and India at that time. (Bhargava, Tr. 

2920). 

159.	 Mr. Bhargava became a vice president of Star in approximately 2003. (Bhargava, Tr. 

2921). He became executive vice president in approximately 2011. (Bhargava, Tr. 2917, 

2921). 

160.	 Mr. Bhargava’s responsibilities included supervision of Star’s entry into Domestic 

Fittings manufacturing. (Bhargava, Tr. 2921). Mr. Bhargava was responsible for 

locating appropriate domestic third-party foundries for Fittings production, developing 

tooling for those foundries, setting up quality control procedures, and assessing the 

manufacturing capacities of domestic foundries. (Bhargava, Tr. 2925-2926). 

161.	 Mr. Bhargava’s quality control responsibilities involve establishing and conducting 

testing and reporting at Star’s third party foundries. (Bhargava, Tr. 2924). 

162.	 Mr. Bhargava has had responsibilities related to Star’s foundry operations in China, 

including aspects of opening a foundry such as: assessing the capabilities of a third-party 

foundry, establishing manufacturing processes for foundries, developing and approving 

product patterns, testing, and troubleshooting inventory and customer service. 

(Bhargava, Tr. 2921-2923). 

163.	 One of Mr. Bhargava’s email addresses is insomniacn@aol.com. (CX 2533 (Bhargava, 

Dep. at 8)). 

19 
3.3.2.5 Leroy H. Leider, Jr. 

PUBLIC RECORD

164.	 Leroy H. Leider, Jr. is a general sales manager for Star. Mr. Leider has been employed 

by Star since approximately 2004. (RX-695 (Leider, Dep. at 9-11)). 

165.	 Mr. Leider was a territory manager for Star for approximately four years, from 2004 until 

2008. (CX 2536 (Leider, Dep. at 11)). 

166.	 In 2008 and 2009, Mr. Leider was a division manager for the northwestern United States, 

including Washington, Oregon, Montana, Idaho, Utah, New Mexico, Colorado, 

Wyoming, North Dakota, South Dakota, Minnesota, and Wisconsin. (CX 2536 (Leider, 

Dep. at 11, 13)). 

167.	 Mr. Leider became a general sales manager in 2009. (CX 2536 (Leider, Dep. at 13)). 

168.	 As general sales manager, Mr. Leider has responsibility for supervising the division 

managers in much of the eastern United States. (RX-695 (Leider, Dep. at 13, 16)). 

169.	 As division manager, Mr. Leider reported to Matt Minamyer. (RX-695 (Leider, Dep. at 

17)). 

170.	 As division manager and as general sales manager, Mr. Leider has not had authority for 

setting Star’s list prices or establishing Star’s published multipliers for fittings. (RX-695 

(Leider, Dep. at 22)). 

3.3.2.6 Michael Berry 

171.	 Michael Berry has been a general sales manager for Star since 2009. (CX 2532 (Berry, 

Dep. at 12)). 

172.	 Mr. Berry was first employed as a territory manager by Star in approximately 2004. As a 

territory manager, Berry was a salesman for Star. (CX 2532 (Berry, Dep. at 10)). From 

approximately 2005 to 2009, Mr. Berry was a division manager for Star, with 

responsibility for Star’s western division, which included portions of the United States 

including and west of Arizona and Utah. (CX 2532 (Berry, Dep. at 13-15)). As division 

manager, Mr. Berry had responsibility for supervising the territory mangers in the 

western United States. (CX 2532 (Berry, Dep. at 14)). 

173.	 John Ristine, John Lemoine, and Kris Kadai are territory managers for Star and reported 

to Mr. Berry in his capacity as division manager. (CX 2532 (Berry, Dep. at 13-14)). 

174.	 As division manager, Mr. Berry did not have responsibility for setting price lists or 

published multipliers for Star. (RX-691 (Berry, Dep. at 18)). 

175.	 As division manager, Mr. Berry sometimes exercised authority to approve Project 

Pricing, but that authority was sometimes exercised directly by either Mr. McCutcheon or 

Mr. Minamyer. (RX-691 (Berry, Dep. at 22); CX 2532 (Berry, Dep. at 22)). 

20 
 

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3.3.2.7 Other Employees 

176.	 Pawan Sharda has been a Senior Financial Analyst at Star since 2007. He has worked at 

Star since 2004. (CX 2540 (Sharda, Dep. at 6-7)). {
 

} (McCutcheon, Tr. 2500, in camera).

 (Bhargava, Tr. 2943, in camera). Pam Garey was the inside sales 

manager at Star in 2008. (Minamyer, Tr. 3159-3160). 

3.4	 Other Fittings Suppliers and Pipe Suppliers 

3.4.1	 American Cast Iron Pipe Company 

3.4.1.1 Company Basics 

177.	 American Cast Iron Pipe Company (“ACIPCO”) is a domestic manufacturer and seller of 

ductile iron pipe, fabricated pipe, spiral weld steel pipe, steel pipe, fire hydrants, gate 

valves and Fittings, with a foundry in Birmingham, Alabama. (CX 2486 (Burns, Dep. at 

13)). 

178.	 ACIPCO currently manufactures Fittings in the United States ranging from 30” to 64” in 

diameter. ACIPCO exited the manufacture of Fittings under 30” in diameter in 2006, and 

most Fittings below 24”. (CX 1897 at 002; CX 2486 (Burns, Dep. at 15, 17, 23-28; CX 

2521 (Agarwal, IHT at 19-20) (SIP does not consider ACIPCO an active competitor for 

Fittings under 36”)). 

179.	 ACIPCO sells Fittings as an ancillary product line; ACIPCO has focused its 

improvements and investments on ductile iron pipe production over the years. (CX 2486 

(Burns, Dep. at 41-42, 49-51)). 

180.	 In 2009, 2010, and 2011, ACIPCO’s Fittings sales accounted for less than 5% of its 

overall revenue. (CX 2486 (Burns, Dep. at 16-17)). 

181.	 As an OEM supplier of pipe systems, ACIPCO purchases Fittings from Sigma to sell as 

part of its packaged sales of pipes and Fittings. (Pais, Tr. 1980-1981; CX 1092 at 005). 

3.4.1.2 Key Employees 

182.	 Jerry Neal Burns has been the division sales manager for the ductile iron pipe division of 

ACIPCO for the last 22 years. His responsibilities include the promotion and sales of 

ductile iron pipe and spiral weld steel pipe in the United States. (CX 2486 (Burns, Dep. 

at 6-7)). 

183.	 Michael Hays has been the director of supply chain management for ACIPCO for the last 

six years. (CX 2487 (Hays, Dep. at 7-8)). 

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3.4.2	 Backman Foundry 

3.4.2.1 Company Basics 

184.	 Backman Foundry, located in Provo, Utah, is a foundry that has been in operation since 

1938. Backman Foundry employs 32 people. (RX-648 (Backman, Dep. at 9, 12)). 

185.	 Backman Foundry primarily manufactures products for “the sulfuric acid business,” 

which are used in “copper mines literally all over the world.” (CX 2488 (Backman, Dep. 

at 12-13) (“I would say 60 to 70 percent of what we make is sold to chemical 

manufacturing facilities for mostly for sulfuric acid.”)). 

186.	 Backman also manufactures Fittings, which comprise approximately 20 to 25% of 

Backman Foundry’s business, or approximately $3 million in sales annually. (CX 2488 

(Backman, Dep. at 14, 18). Specifically, Backman Foundry manufactures customized 

Fittings, niche products that do not compete with McWane or other large Fittings 

suppliers who sell “standard off-the-shelf, the bread-and-butter [Fittings].” (CX 2488 

(Backman, Dep. at 16-17) (“If you can imagine a pipe fitting that has a hole in it 

anywhere but standard, that’s what we do.”); CX 2488 (Backman, Dep. at 79-80) (“I 

can’t compete with McWane Corporation for example, TylerUnion. . . . Good grief. The 

fittings sitting on the ground in their yard ready to ship cost less than molten metal before 

I ever put it in a mold.”)). 

187.	 Because Backman Foundry specializes in manufacturing custom-made pipe fittings it 

does not consider Fittings made with automated systems competing products. (CX 2488 

(Backman, Dep. at 78) (“Q. Who are your competitors today in the domestic pipe 

fittings? A. Um, I don’t know that I actually have a competitor. And I qualify that 

statement by I believe that I am the only facility left in the United States that specializes 

and manufactures custom pipe fittings.”)). 

188.	 Due to the high degree of customization of its Fittings, Backman Foundry produces 

products on a purchase-order-by-purchase-order basis. (CX 2488 (Backman, Dep. at 

33)). 

3.4.2.2 Key Employees 

189.	 Alan Backman is the president, CEO and primary owner of Backman Foundry. Mr. 

Backman has had supervisory responsibility for everything that goes on at the foundry for 

17 years. (CX 2488 (Backman, Dep. at 11) (“I own 98 percent of the stock of the 

corporation.”)). 

190.	 Mr. Backman’s responsibilities are to “oversee operations of the entire facility on more of 

a global, . . . long-term basis.” Mr. Backman also deals with customers and keeps “an 

eye on day-to-day operations to some degree.” (CX 2488 (Backman, Dep. at 48). 

22 
3.4.3 Griffin Pipe 

PUBLIC RECORD

191. Griffin Pipe Products Co. is a domestic manufacturer of ductile iron pipes and has been in 

operation since the 1960s. Griffin also re-sells Fittings as part of packaged sales of pipes 

3.4.3.1 Company Basics 

and Fittings. (CX 2508 (Kurhts, Dep. at 9-10, 11) (noting that Metalfit manufactures 

proprietary restraint joints for Griffin)). 

192.	 {

 (CX 2508 (Kurhts, Dep. at 18, 19-20, 48-50, 73­

74, in camera) ( 

). 

193.	 {

 (CX 2508 

(Kurhts, Dep. at 42-44, in camera)). 

194.	 {

 (CX 2508 (Kurhts, Dep. at 20-21, 24-27), in camera 

({
 

)). 

3.4.3.2 Key Employees 

195.	 Douglas Kuhrts became the national customer service manager at Griffin Pipe, in Council 

Bluffs, Iowa in 2012. Before that, Mr. Kuhrts was the customer service manager for 

Griffin’s west region for ten years. In total, Mr. Kurhts has been with Griffin for 12 

years. (CX 2508 (Kurhts, Dep. at 6-7)). 

3.4.4	 Metalfit 

3.4.4.1 Company Basics 

196.	 Metalfit is a foundry in Monterrey, Mexico and a manufacturer of flanged Fittings from 

3” to 48” in diameter and mechanical joint Fittings from 4” to 48” in diameter. (CX 2518 

(Meyer, Dep. at 16-23)). Metalfit supplies Fittings under the Metalfit brand name, and as 

private label products for ACIPCO, U.S. Pipe, Griffin, and Sigma. (CX 2518 (Meyer, 

Dep. at 16-23)). 

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197.	 In addition to Fittings, Metalfit produces municipal castings for the Mexican market and 

non-waterworks products including valve bodies, butterfly valves, ball valves, plug 

valves, and pump parts. (CX 2518 (Meyer, Dep. at 21)). 

198.	 Metalfit exports approximately 98% of its Fittings to the United States. (CX 2518 

(Meyer, Dep. at 20-21)). 

199.	 All of the Fittings sold under the Metalfit brand name are sold through Distributors. (CX 

2518 (Meyer, Dep. at 23-24)). 

200.	 Metalfit’s total annual sales were { } in 2008, { } in 2009, 

{ } in 2010, and { } in 2011. (CX 1777 at 005, in camera 

(Metalfit sales information )). 

201.	 In 2011, approximately 70% of Metalfit’s sales were of Fittings. Over the last five years, 

Fittings sales have generally been less than 70%. (CX 2518 (Meyer, Dep. at 21-22, 108­

109)). 

3.4.4.2 Key Employees 

202.	 Mark L. Meyer has been an owner and vice president of Metalfit, Inc. since 2004. As 

vice president of Metalfit, Mr. Meyer is responsible for sales, marketing, customer 

development, new product development, strategic planning, government affairs and all 

non-manufacturing aspects of the business. (CX 2518 (Meyer, Dep. at 9-12)). 

203.	 Mr. Meyer and his partners built Metalfit as a greenfield foundry in 1991 and began 

operations in 1994. (CX 2518 (Meyer, Dep. at 9-11)). In 2000, Mr. Meyer and his 

partners sold the foundry to Griffin Pipe Products, but they purchased it back in July 

2004, and continue to operate the foundry today. (CX 2518 (Meyer, Dep. at 9-11)). 

3.4.5	 NAPAC 

204.	 NAPAC, Inc. is a Fittings supplier with close to a full product line of non-Domestic 

Fittings. (CX 2500 (Swalley, Dep. at 135); CX 2526 (Minamyer, Dep. at 14); CX 2510 

(Groeniger, Dep. at 44)). 

205.	 NAPAC has three distribution centers, in Massachusetts, Jacksonville, and California. 

(CX 2500 (Swalley, Dep. at 137)). 

206.	 McWane does not consider NAPAC a primary competitor like Star and Sigma. (CX 

2484 (Tatman, Dep. at 24-25)). 

3.4.6	 NACIP 

3.4.6.1 Company Basics 

207.	 In 2010, North American Cast Iron Products (“NACIP”) began selling Fittings in the 

United States that it imports from India and China. (Saha, Tr. 1152-1153, 1173-1176). 

24 
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NACIP’s corporate headquarters are in New Jersey, and its distribution centers are in 

New Jersey, Norfolk, Virginia, Covington, Georgia, and Houston, Texas. (Saha, Tr. 

1153-1154). 

208.	 NACIP sells Fittings to Distributors. (Saha, Tr. 1153-1154). NACIP currently sells 

Fittings to approximately 50 separate Distributor branches, primarily third tier and 

independent distributors. Mr. Saha estimates that this represents less than 5% of the 

overall Fittings distribution network in the United States. (Saha, Tr. 1167-1168, 1171). 

209.	 The volume of NACIP’s Fittings sales is “[i]nsignificant” in comparison to McWane. 

(Saha, Tr. 1164; CX 2519 (Saha, Dep. at 26)). 

210.	 NACIP Fittings sales are primarily in the eastern and southern parts of the United States. 

NACIP has no current plans to expand its Fittings sales to other geographical areas. 

(Saha, Tr. 1163-1164). 

211.	 NACIP’s total revenues from Fittings in 2011 were approximately $500,000. (CX 2519 

(Saha, Dep. at 26)). 

3.4.6.2 Key Employees 

212.	 Suvobrata Saha is the president and part-owner of NACIP, and has worked in the Fittings 

industry since 1983. (Saha, Tr. 1152-1157). Mr. Saha’s responsibilities at NACIP 

include sales planning, purchasing, and finance. (Saha, Tr. 1152-1153). 

213.	 Mr. Saha is also the joint managing director of Carnation Industries, Limited, a foundry 

that produces Fittings in China and India for NACIP. (Saha, Tr. 1155-1156). 

214.	 Early in his career Mr. Saha worked as an Eastern U.S. regional sales manager for Star. 

(Saha, Tr. 1157-1158). 

215. 

3.4.7.1 Company Basics 

216.	 {

 (CX 2522 (Agarwal, Dep. at 6, 22), in 

camera ({
 

)).
 

In 1996 Mr. Saha started a waterworks company called Pipeline Components, Inc. 

(“PCI”), of which he was vice president and part owner. (Saha, Tr. 1158). In 2005, Mr. 

Saha sold PCI to Sigma, at which time Sigma closed down all three of PCI’s locations. 

(Saha, Tr. 1161-1162). The agreement by which Sigma purchased PCI included a 3-year 

non-compete clause binding Mr. Saha. During that time period, Mr. Saha was not 

permitted to be in the Fittings business. (Saha, Tr. 1161-1162). 

3.4.7 SIP 

25 
 

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217.	 SIP began selling Fittings in the United States in 2003 or 2004, and currently sells to 

approximately { } (CX 2522 (Agarwal, Dep. at 

29, 38, in camera)). 

(CX 2522 (Agarwal, Dep. at 

85), in camera). 

218.	 SIP offers a full line of Fittings up to 48” in diameter. (RX-681 (Agarwal, Dep. at 30); 

CX 2521 (Agarwal, IHT at 64-65)). 

219.	 {

 (RX-369, in camera). 

3.4.7.2 Key Employees 

220.	 Bharat Agarwal has been SIP’s vice president for business development since 

approximately 2007. In that position, Mr. Agarwal is responsible for finding new 

business opportunities, including new products and markets, and growing sales. (CX 

2522 (Agarwal, Dep. at 6-7); RX-681 (Agarwal, Dep. at 9-10)). 

3.4.8	 U.S. Pipe 

3.4.8.1 Company Basics 

221.	 United States Pipe and Foundry (“U.S. Pipe”), headquartered in Birmingham, Alabama, 

currently manufactures ductile iron pipe. (Morton, Tr. 2809). In the 2005-2012 time 

period, U.S. Pipe manufactured ductile iron pipe at two plants in Bessemer, Alabama, and 

a plant in Union City, California. (Morton, Tr. 2809). 

222.	 U.S. Pipe sells complete waterworks systems that include its ductile iron pipe packaged 

together with related products, including Fittings and accessories. (Morton, Tr. 2809­

2812). 

223.	 U.S. Pipe’s main competitors in the sale of ductile iron pipe systems are Griffin, 

McWane, and ACIPCO. (Morton, Tr. 2811-2812). 

224.	 Until April 2006, U.S. Pipe manufactured Domestic Fittings from 4” to 64” in diameter at 

its Chattanooga, Tennessee facility. U.S. Pipe stopped manufacturing Fittings in April 

2006, and has since sold the Chattanooga facility. (Morton, Tr. 2810). 

225.	 U.S. Pipe currently purchases non-Domestic Fittings primarily from Sigma, with Star as a 

secondary supplier, and Domestic Fittings from McWane and Star. U.S. Pipe sells the 

Fittings that it purchases as a part of a bundled package of Fittings and ductile iron pipe. 

(Morton, Tr. 2810, 2819-2820). 

226.	 In the Spring of 2009, U.S. Pipe decided not to re-enter the Domestic Fittings market. 

(Morton, Tr. 2866-2867, 2876). 

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227.	 U.S. Pipe’s total annual sales of all products are approximately $250 million to $300 

million. (Morton, Tr. 2811-2812). U.S. Pipe’s total annual sales of Fittings are not 

significant. (CX 0313 at 004 (Pais writing that U.S. Pipe was “not a producer anymore, 

but a small player buying almost all their needs from Sigma”); see infra ¶¶ 1127-1128 

(describing volume of U.S. Pipe’s Fittings sales)). 

3.4.8.2 Key Employees 

228.	 For the seven years between May 2005 and August 14, 2012, Thomas Morton was U.S. 

Pipe’s vice president of purchasing. (Morton, Tr. 2807-2808). As vice president of 

purchasing, Mr. Morton typically had final authority over all purchasing decisions at U.S. 

Pipe, including which vendors U.S. Pipe used. (Morton, Tr. 2808). 

229.	 Gary Crawford has been U.S. Pipe’s sales director since 2010. From 1978 to 1989, Mr. 

Crawford was a sales representative for various geographic regions in the United States, 

selling U.S. Pipe products, including Fittings. From 1989 to 1994, Mr. Crawford was the 

Assistant Eastern Regional Sales manager. From 1994 to December 2003, Mr. Crawford 

was the Eastern Regional sales manager. From December 2003 through 2010, Mr. 

Crawford was the vice president of sales. (CX 2541 (Crawford, Dep. at 6-9)). 

3.4.9	 Electrosteel USA 

3.4.9.1 Company Basics 

230.	 Electrosteel USA entered the U.S. market in 2009, and sells 4” to 24” Fittings that were 

manufactured in India. (RX-659 (Swalley, Dep. at 8-10, 12-13); CX 2500 (Swalley, Dep. 

231. 

232. 

USA currently sells to only 7 to 10. Those 7 to 10 branches purchase approximately 10% 

of their Fittings needs from Electrosteel USA. (CX 2500 (Swalley, Dep. at 152-153)). 

233.	 Electrosteel USA estimates its own market share in the southeast as one percent after two 

at 13)). 

Electrosteel USA has concentrated its sales efforts in the southeastern United States. 

(RX-659 (Swalley, Dep. at 27)). Electrosteel USA estimates its own market share in the 

southeast as 1% after two and a half years. (CX 2500 (Swalley, Dep. at 33, 131)). 

Of approximately 75 Distributor branches in the southeastern United States, Electrosteel 

234. 

235.	 {

 (CX 1553 at 002-012, in camera { 

and a half years. (CX 2500 (Swalley, Dep. at 33, 131)) 

{

 (CX 2500 (Swalley, Dep. at 183-184), in camera 

{ 

27 
 

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; CX 2500 (Swalley, Dep. at 221-232), in camera { 

236.	 {

 (CX 2500 (Swalley, Dep. at 185), in camera). 

3.4.9.2 Key Employees 

237.	 Robert Daniel Swalley has been the business development manager at Electrosteel USA 

since August 2007 when he first began working for Electrosteel USA. (RX-659 

(Swalley, Dep. at 5)). 

3.5	 Domestic Foundries 

3.5.1	 EBAA 

3.5.1.1 Company Basics 

238.	 EBAA is a domestic joint restraint manufacturer with two domestic iron foundries in 

Texas and one in Georgia. (RX-658 (Keffer, Dep. at 7-8)). 

239.	 EBAA Iron does not produce any Fittings. (CX 2499 (Keffer, Dep. at 9)). 

3.5.1.2 Key Employees 

240.	 Jim Keffer is the sales division president for EBAA Iron, where he has worked for 35 

years. (RX-658 (Keffer, Dep. at 4-6). 

241.	 Mr. Keffer assisted Distributors, municipalities, and other market participants to 

understand the meaning of the Buy American provision in ARRA after it passed. (RX658 (Keffer, Dep. at 70-72)). 

3.5.2	 EJ 

3.5.2.1 Company Basics 

242.	 EJ is the successor company to East Jordan Ironworks, a domestic foundry that began 

making gray iron municipal products in the 1920s, including: fire hydrants, gate valves, 

construction castings, municipal manhole frames and covers, and gray iron water main 

fittings. (RX-657 (Teske, Dep. at 8)). 

243.	 EJ does not currently make Fittings, and has never made Fittings. (CX 2498 (Teske, 

Dep. at 12)). 

244.	 However, EJ does currently resell McWane Fittings to a few legacy clients in the 

Midwest. Those Fittings sales are restricted to Michigan and Northern Illinois, and 

account for less than 1% of EJ’s overall sales. (CX 2498 (Teske, Dep. at 33-34, 39-40)). 

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245.	 EJ has made no efforts to expand its Fittings sales beyond its legacy clients because 

Fittings are a resale product for EJ. Mr. Teske believes that Distributors are uninterested 

in buying a resale product from EJ because Distributors can purchase the same product 

from Fittings suppliers at a better margin. (CX 2498 (Teske, Dep. at 41-43)). 

3.5.2.2 Key Employees 

246.	 Thomas Michael Teske has been at East Jordan Ironworks, now EJ, since 1976, and is 

currently the company’s vice president and general manager, responsible for EJ Canada, 

EJ USA, Inc., and EJ America Latina. (RX-657 (Teske, Dep. at 5-6)). 

3.5.3	 Frazier & Frazier Industries 

3.5.3.1 Company Basics 

247.	 Frazier & Frazier Industries (“Frazier & Frazier”) is a domestic foundry that was founded 

in 1972. Frazier & Frazier produces castings for Domestic Fittings for suppliers like 

McWane and Star. (RX-664 (Frazier, Dep. at 6-9, 14, 19-20) (noting broad array of 

products it produces, including gray iron castings, fire hydrants, barbells and boat 

anchors)). 

248.	 Frazier & Frazier produces unfinished Domestic Fittings; the castings that Frazier & 

Frazier makes for Fittings still require finishing, such as bolts, fasteners, and paint. (CX 

2505 (Frazier, Dep. at 71-72); RX-664 (Frazier, Dep. at 18) (identifying Frazier & 

Frazier as a castings manufacturer, not a Fittings manufacturer)). 

249.	 The largest diameter Fitting that Frazier & Frazier produces is a 10” diameter Fitting. 

(CX 2505 (Frazier, Dep. at 20, 34)). 

250.	 Frazier & Frazier typically produces castings for Domestic Fittings through metal 

patterns that are sometimes provided to Frazier & Frazier by its customers. (CX 2505 

(Frazier, Dep. at 24-25) (noting that Frazier & Frazier may still incur expenses to set up 

the new pattern, including adapting the pattern to the foundry’s flask and sampling)). 

251.	 Frazier & Frazier’s total castings sales to Star were $544,349 in 2009, and increased to 

$1,235,132 in 2010, with total Fittings sales of $4,118,869 to date. (RX-706 (Ewing, 

Dep. at 6-10)). 

3.5.3.2 Key Employees 

252.	 Charles W. Frazier, Jr. has been Frazier & Frazier’s president and chief operating officer 

since 2000. Mr. Frazier has been involved in the foundry business all of his life. (RX664 (Frazier, Dep. at 5-6)). 

253.	 VJ Gupta is the sales manager at Frazier & Frazier. (RX-665 (Gupta, Dep. at 6)). 

254.	 Lee Ann Ewing has been the secretary and treasurer at Frazier & Frazier since 

approximately 2001, and has been employed by Frazier & Frazier since 1978. Ms. 

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Ewing oversees Frazier & Frazier’s accounting functions, including billing, bill payment, 

and profit and loss statement preparation. (RX-706 (Ewing, Dep. at 4-5)). 

3.5.4	 Glidewell Foundry 

3.5.4.1 Company Basics 

255.	 Glidewell Foundry (“Glidewell”) makes ductile iron castings for a wide variety of 

industries, including the waterworks industry. (RX-666 (Glidewell, Dep. at 13-14)). 

256.	 Approximately 50% of Glidewell’s total castings sales are for waterworks industry 

customers and products, including Star, McWane, ACIPCO, and valve manufacturers. 

(RX-666 (Glidewell, Dep. at 14-15)). 

257.	 Approximately 8% of Glidewell’s waterworks sales in 2011 were Domestic Fittings 

castings. (RX-666 (Glidewell, Dep. at 16)). 

258.	 Glidewell began making Domestic Fittings castings in 2009, and sold Domestic Fittings 

castings to Star in 2010. Typically, Glidewell realizes a 10% margin on its sales of 

Domestic Fitting castings. (RX-666 (Glidewell, Dep. at 16, 54; CX 2507 (Glidewell, 

Dep. at 95-96)). 

259.	 Since 2009, Glidewell has cast only large-diameter Domestic Fittings of 30” to 48” in 

diameter. Glidewell has never had the equipment necessary to efficiently make Domestic 

Fittings castings smaller than 30”. (CX 2507 (Glidewell, Dep. at 63)). 

3.5.4.2 Key Employees 

260.	 David Glidewell has worked in the foundry business since 1974, and has been the 

president and CEO of Glidewell Foundry since 1991. (RX-666 (Glidewell, Dep. at 8­

10)). Mr. Glidewell oversees Glidewell’s operations and handles all quoting and 

estimating for the company, including reviewing all requests for quotes. (RX-666 

(Glidewell, Dep. at 11-12)). 

3.5.5	 Mabry Castings 

3.5.5.1 Company Basics 

261.	 Mabry Castings (“Mabry”) manufactures castings for Domestic Fittings. (RX-676 (Hall, 

Dep. at 18-19) (noting wide variety of products produced by Mabry). 

262.	 Mabry can cast Domestic Fittings with a 12” and smaller outside diameter on its green 

sand machine, and Domestic Fittings of a 50” diameter and smaller on its Airset machine. 

(CX 2517 (Hall, Dep. at 26-27)). 

263.	 In 2009, Mabry began producing Domestic Fitting castings for Star. (CX 1581; RX-676 

(Hall, Tr. 67-68)). Mabry currently makes mechanical joint bend Domestic Fittings that 

are 8” and larger for Star. (RX-676 (Hall, Dep. at 19)). 

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3.5.5.2 Key Employees 

264.	 Eddie N. Hall, Jr. is the sales manager at Mabry foundry in Beaumont, Texas, where he 

has worked for over 29 years. As sales manager, Mr. Hall provides quotes to Domestic 

Fitting casting customers. Before 2011, Mr. Hall was Mabry’s plant operations manager. 

(RX-676 (Hall, Dep. at 5, 7-12, 17, 18)). 

3.6	 Distributors 

3.6.1	 HD Supply 

3.6.1.1 Company Basics 

265.	 HD Supply is the largest waterworks Distributor in terms of sales in the United States. 

(Joint Stipulations of Fact, JX 0001 ¶ 24). HD Supply sells all waterworks products, 

including PVC pipe, ductile iron pipe, valves, hydrants, brass items, appurtenances, and 

Fittings. (Webb, Tr. 2706). 

266.	 HD Supply is a national Distributor with 235 branches in major metropolitan areas in 44 

states. Each branch stocks Fittings and other products for HD Supply’s customers. 

(Webb, Tr. 2698-2699 (identifying branches in every state except Maine, Vermont, New 

Hampshire, Hawaii, Wyoming, and North Dakota)). 

3.6.1.2 Key Employees 

267.	 From 2007 through December 2011, Jerry L. Webb was president and CEO of HD 

Supply’s Waterworks Division. (Webb, Tr. 2694-2695). 

268.	 Mr. Webb reports to Joe DeAngelo, who is the CEO for all of HD Supply, and also gives 

monthly updates to the board on performance, long range forecasting, initiatives and 

sales. (Webb, Tr. 2695-2696). 

269.	 Mr. Webb’s direct reports are the HD Supply waterworks division’s CFO, CIO, the vice 

president of market development, and the strategic business development director. 

(Webb, Tr. 2695-2696). Prior to December 2011, HD Supply’s six waterworks regional 

vice presidents (including one vice president of fire protection) reported to Mr. Webb. 

(Webb, Tr. 2696-2697). 

270.	 As CEO of the HD Supply Waterworks division, Mr. Webb is responsible for strategic 

growth, new markets, market and product initiatives, and vendor relations. (Webb, Tr. 

2696-2697; CX 2514 (Webb, Dep. at 9-10)). 

271.	 Mr. Webb exerts final authority over which Fittings suppliers HD Supply selects. (Webb, 

Tr. 2746). 

272.	 Before March 2007, Mr. Webb was a Southeast regional vice president of HD Supply. 

All branch managers in Georgia, Florida, Alabama, Mississippi, and Arkansas reported to 

Mr. Webb. Mr. Webb had profit and loss responsibility for his region. (Webb, Tr. 2697­

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2698). Other positions that Mr. Webb has held at HD Supply since he joined the 

company in 1981 include sales, inside sales, branch management, national sales 

management. (Webb, Tr. 2698-2699). 

273.	 Rob Hixon and Don Taylor were employees of HD Supply in 2008. (CX 2536 (Leider, 

Dep. at 83)). 

3.6.2	 Ferguson 

3.6.2.1 Company Basics 

274.	 Ferguson is the second largest waterworks Distributor in terms of sales in the United 

States. (Joint Stipulations of Fact, JX 0001 ¶ 25). Ferguson serves the water and 

wastewater industry, supplying primarily pipe, valves and fittings to contractors and 

municipalities. (CX 2503 (Thees, IHT at 15)).Ferguson has an approximately 25% 

market share nationwide. (Tatman, Tr. 952-953; Thees, Tr. 3059 (noting that Ferguson 

has thousands of waterworks customers)). 

275.	 Ferguson is a national Distributor with approximately 167 branches throughout the 

country that distribute waterworks products, including Fittings. (Thees, Tr. 3042, 3045­

3046 (identifying branch locations in every state except Kansas, Nebraska, and Iowa). 

276.	 Ferguson employs a sales force of over 300 outside sales people and 250 inside sales 

people. (Thees, Tr. 3060). 

277.	 Ferguson’s executives are involved in Fittings supplier decisions based on the strength of 

any corporate rebate program with the supplier and the strength of the overall relationship 

between Ferguson and the supplier. (Thees, Tr. 3083). Ferguson’s branches are more 

involved in selecting a Fittings supplier when the customer specifies a brand or where the 

local relationship with the End User is significant. (Thees, Tr. 3083-3084). 

278.	 Ferguson and HD are McWane’s two largest Fittings customers. (Tatman, Tr. 953; 

Thees, Tr. 3042) (noting that McWane also supplies soil pipes to Ferguson’s Plumbing 

Division in addition to waterworks products, including Fittings)). 

3.6.2.2 Key Employees 

279.	 Since August 2009, William Taylor Thees, Jr. has been the vice president of waterworks 

at Ferguson Enterprises, where he has worked for the last 22 years. (Thees, Tr. 3032­

3033). Before becoming vice president, Mr. Thees held a series of positions at Ferguson, 

including branch manager, district manager, and business group owner of Ferguson’s 

waterworks group, with responsibilities similar to his vice-president responsibilities. 

(Thees, Tr. 3034-3035). 

280.	 As vice president of Ferguson’s waterworks division, Mr. Thees has profit and loss and 

strategy development responsibilities for the waterworks group. These responsibilities 

include deciding what initiatives to pursue or ways to grow the waterworks group, and 

deciding whether to acquire or open new Ferguson branches. (Thees, Tr. 3039). 

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281.	 Mr. Thees regularly interacts with his district managers, gathering intelligence in order to 

understand relationships with suppliers, the relative sale volumes of each district, and 

potential growth areas. (Thees, Tr. 3040-3041). 

282.	 Mr. Thees often has the final authority in the selection of waterworks suppliers, including 

Fittings suppliers, though he discusses waterworks decisions with other Ferguson 

divisions when the supplier, like McWane, sells non-waterworks products to Ferguson as 

well. (Thees, Tr. 3041-3042). 

283.	 Mr. Thees participates in negotiating rebates with Ferguson’s waterworks suppliers. The 

corporate rebate department takes the lead when it is a corporate rebate, and the local or 

regional office takes the lead on regional rebates. (Thees, Tr. 3041). 

3.6.3	 WinWholesale 

3.6.3.1 Company Basics 

284.	 WinWholesale, which does business as WinWater Works (“WinWater”), is the third 

largest waterworks Distributor in the United States with 43 local companies or branches 

in 22 states. (CX 2162 at 001; CX 2546 (Gibbs, Dep. at 11, 15-16)). WinWater sells 

waterworks products, including Fittings, to End Users. (CX 2546 (Gibbs, Dep. at 7-8)). 

285.	 In 2008, WinWholesale purchased approximately $9.5 million in Fittings. (CX 2546 

(Gibbs, Dep. at 12)). In 2009, WinWholesale purchased approximately $8.7 million in 

Fittings. (CX 2546 (Gibbs, Dep. at 12)). In 2010, WinWholesale purchased 

approximately $9.0 million in Fittings. (CX 2546 (Gibbs, Dep. at 12)). In 2011, 

WinWholesale purchased approximately $9.0 million in Fittings. (CX 2546 (Gibbs, Dep. 

at 12)). 

286.	 In 2011, WinWholesale’s annual revenue was $1.78 billion. (CX 2546 (Gibbs, Dep. at 

11-12)). 

3.6.3.2 Key Employees 

287.	 Eddie Gibbs has been the vice president of vendor relations for WinWholesale for since 

2005. (CX 2546 (Gibbs, Dep. at 7-8)). 

288.	 As the vice president of vendor relations, Mr. Gibb’s responsibilities include negotiating 

programs for all of WinWholesale’s products, including Fittings, with vendors, gaining 

access to vendor lines, and dealing with disputes with local companies (branches) and 

vendors. (CX 2546 (Gibbs, Dep. at 7)). 

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3.6.4	 Hajoca 

3.6.4.1 Company Basics 

289.	 Hajoca Corporation distributes plumbing, heating, and industrial products. (Pitts, Tr. 

3291-3292). Hajoca sells waterworks products including flanged pipes and fittings, 

saddles, valves, and Fittings. (Pitts, Tr. 3297). 

290.	 Hajoca has 351 locations, or profit centers. Of those, approximately nine sell waterworks 

products. Three branches sell waterworks exclusively: Tulsa, Oklahoma; Salt Lake City, 

Utah; and Olathe, Kansas. Lansdale, Pennsylvania also sells waterworks products. 

(Pitts, Tr. 3296-3297). 

291.	 Compared to Ferguson and HD Supply, Hajoca’s presence in the waterworks distribution 

business – with three dedicated waterworks locations – is very small. (Pitts, Tr. 3299­

3300). 

3.6.4.2 Key Employees 

292.	 Roy Lee Pitts has been the director of vendor relations at Hajoca for the last fifteen years. 

(Pitts, Tr. 3291-3292). Before Mr. Pitts was the director of vendor relations, he was the 

manager of Hajoca’s Fairfax, Virginia branch. Before that, Mr. Pitts was an outside sales 

person. (Pitts, Tr. 3293). 

293.	 As director of vendor relations, Mr. Pitts negotiates programs with Hajoca’s vendors, 

supervises Hajoca’s supplier rebate programs, and represents Hajoca at industry events. 

Mr. Pitts’s responsibilities include waterworks. (Pitts, Tr. 3293-3294). 

294.	 Mr. Pitts regularly communicates with waterworks suppliers about Hajoca’s waterworks 

purchasing goals. In Mr. Pitts’s prior role as Hajoca Fairfax’s manager, he also picked up 

waterworks products from suppliers if it was necessary for his customers. (Pitts, Tr. 

3294). 

295.	 Mr. Pitts advises individual Hajoca branches about supplier corporate rebate programs, 

cash discounts, and shipping terms, and the branch managers of those branches make 

final decisions on which products to purchase. (Pitts, Tr. 3295-3296). 

3.6.5	 The Distribution Group (TDG) 

3.6.5.1 Company Basics 

296.	 The Distribution Group, also known as “TDG”, is a “group of distributors that pool their 

buying power together to jointly earn rebates based on group volume, group purchases 

from vendors.” (CX 2494 (R. Fairbanks, Dep. at 10); Minamyer, Tr. 3188 (TDG is a 

group of independent Fittings Distributors that negotiate collectively with vendors)). 

297.	 There are 32 independent Distributors that make up the membership of TDG. (CX 2494 

(R. Fairbanks, Dep. at 10); Sheley, Tr. 3380 (TDG currently has 32 members)). TDG 

34 
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298. 

299. 

300. 

301. 

302. 

303. 

304. 

305.
 

does not “have any solid written criteria” for membership but looks for “members that 

have better than $10 million in annual purchases and that have good [financial] reputation 

in the industry.” (CX 2494 (R. Fairbanks, Dep. at 12)). 

The purpose of TDG is to increase the negotiating power of individual Distributors who 

would otherwise not receive terms as favorable to them as the terms that suppliers extend 

to larger Distributors like HD Supply. (Sheley, Tr. 3394-3395). 

TDG collectively negotiates for freight terms, payment terms, rebate programs, and 

extended purchasing agreements with 68 suppliers, including Fittings. (Sheley, Tr. 3378­

3379; CX 2494 (R. Fairbanks, Dep. at 11) (“Our agreements are really only products that 

our members buy and resale, so they’re wholesale products. So they’re the same 

products they sell to their customers.”)). 

{ 

Fairbanks, Dep. at 21), in camera; Sheley, Tr. 3393, in camera ({ 

} (CX 2494 (R. 

)). 

{

 (CX 2494 (R. 

Fairbanks, Dep. at 21, in camera, 57-58); Sheley, Tr. 3379-3380 (TDG distributes TDG 

supplier rebates to TDG members on a pro-rata basis)). 

TDG’s Vendor Committee reviews proposals from vendors and selects the vendors with 

whom TDG will have rebate programs. (CX 2494 (R. Fairbanks, Dep. at 12); Sheley, Tr. 

3379-3380 (describing process of Vendors submitting proposals to TDG prior to 

September Vendor Selection Committee meetings)). 

The vendor committee consists of nine members, each with an equal vote. (CX 2494 (R. 

Fairbanks, Dep. at 12-14)). Members of the vendor committee include, Dennis Sheley, 

Illinois Meter Company; Curtis Porter, Utility Supply Company; Michael Coryn, Utility 

Equipment Company; Jenks Hayes, Hayes Pipe & Supply; Peter Prescott, E.J. Prescott 

Company; Wayne Johnson, Dana Kepner Company; Dennis Johnson, Atlas Utility; Hod 

Fowler, H.D. Fowler Company; and Jeff Konen, Consolidated Supply Company. (CX 

2494 (R. Fairbanks, Dep. at 13)). 

Currently, TDG has contracts with 72 different waterworks suppliers. (Sheley, Tr. 3396­

3397). TDG members must purchase certain percentages of their purchases from TDG 

vendors, but members are not required to purchase products from any specific vendor just 

because the vendor has a rebate program with TDG. (CX 2494 (R. Fairbanks, Dep. at 33) 

(“[M]embers can buy from wherever they want.”); Sheley, Tr. 3395-3396). 

3.6.5.2 Key Employees 

Richard Frank Fairbanks II is the president of TDG. (CX 2494 (R. Fairbanks, Dep. at 

10)). His primary responsibilities are to “manage relationships” between members and 

vendors or “act as a liaison,” to “facilitate negotiations” between members and vendors, 

to “manage the numbers of purchases and rebates,” and to “oversee the purchasing goals 

35 
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and commitments.” (CX 2494 (R. Fairbanks, Dep. at 58-59, 61)). Mr. Fairbanks spends 

80% of his time managing relationships or acting as a liaison between members and 

vendors. (CX 2494 (R. Fairbanks, Dep. at 59)). 

306.	 Mr. Fairbanks was president of WR White, a distribution company, in the early 1990s. 

(CX 2494 (R. Fairbanks, Dep. at 50). Mr. Fairbanks sold WR White in 2000. (CX 2494 

(R. Fairbanks, Dep. at 55). WR White’s parent company, Old Castle Precast, is a 

member of TDG. (CX 2494 (R. Fairbanks, Dep. at 52)). 

307.	 Mr. Fairbanks has relationships with Larry Rybacki at Sigma, Dan McCutcheon at Star, 

and Rick Tatman and Jerry Jansen at Tyler Union. (CX 2494 (R. Fairbanks, Dep. at 65­

66)). Previously Mr. Fairbanks had relationships with Victor Pais at Sigma and Matt 

Minamyer at Star. (CX 2494 (R. Fairbanks, Dep. at 65-66)). 

3.6.6	 EJ Prescott, Inc. 

3.6.6.1 Company Basics 

308.	 E.J. Prescott, Inc. is a waterworks Distributor headquartered in Gardiner, Maine. (CX 

2501 (Prescott, IHT at 7-9)). E.J. Prescott has 27 branches located throughout Maine, 

New Hampshire, Rhode Island, Vermont, Massachusetts, Connecticut, Indiana, Ohio, and 

New York. (CX 2502 (Prescott, Dep. at 9); CX 2501 (Prescott, IHT at 8)). 

309.	 Right before the passage of ARRA, 20% of E.J. Prescott customers were “[a] hundred 

percent domestic.” (CX 2501 (Prescott, IHT at 41)). E.J. Prescott’s fitting inventory in 

2012 was 50% domestic and 50% imported. (CX 2502 (Prescott, Dep. at 11)). 

310.	 E.J. Prescott purchases ductile iron pipe fittings from Tyler, Sigma, Star, and SIP. (CX 

2502 (Prescott, Dep. at 15, 20)). 

311.	 E.J. Prescott is a member of TDG. (RX-661 (Prescott, Dep. at 40)). 

312.	 E.J. Prescott’s revenue in 2009 was approximately $145 million and its revenue in 2010 

was approximately $140 million. In 2009, E.J. Prescott’s revenue from Fittings was “two 

to three million” and in 2010 it was approximately three to three-and-a-half million 

dollars. (CX 2502 (Prescott, Dep. at 10)). 

313.	 E.J. Prescott competes with Ferguson, Maine Water, HR Prescott & Sons, and TI Sales in 

Maine. (CX 2502 (Prescott, Dep. at 62)). 

314.	 E.J. Prescott’s market share in Maine is approximately 50%. (CX 2502 (Prescott, Dep. at 

61) (“probably approaching 50, maybe even more”)). 

3.6.6.2 Key Employees 

315.	 Peter Prescott has been the CEO of E.J. Prescott for 10 years. (CX 2502 (Prescott, Dep. 

at 6-7)). From 1978 until he became CEO, Mr. Prescott was the president of E.J. 

Prescott. (CX 2502 (Prescott, Dep. at 7)). 

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316.	 Mr. Prescott started working in the waterworks industry in 1959 in sales, worked his way 

up to sales manager and then in 1978 purchased E.J. Prescott Company from his father 

with his two brothers-in-law. (CX 2501 (Prescott, IHT at 6)). 

3.6.7	 Groeniger & Company 

3.6.7.1 Company Basics 

317.	 Groeniger & Company (“Groeniger”) was a waterworks Distributor that had 14 branches 

before it had to close five branches due to the economy. (CX 2509 (Groeniger, IHT at 

24)). Ferguson purchased Groeniger in 2011. (CX 2510 (Groeniger, Dep. at 125)). 

318.	 Groeniger’s nine California branches serviced the following metropolitan areas: 

Bakersfield; Fresno; Modesto Stockton; Sacramento; San Francisco Bay area; and 

Monterey Bay area. Santa Maria branch serviced the southwest coastal area; and the 

Chico location is now only a stocking yard. (CX 2509 (Groeniger, IHT at 25) (noting 

that Santa Maria branch services California southwest coastal area, and its Chico location 

is now only a stocking yard)). 

319.	 Groeniger was a member of TDG. (CX 2510 (Groeniger, Dep. at 58-59)). 

320.	 Groeniger purchased Fittings from McWane, Sigma, and Star. (CX 2510 (Groeniger, 

Dep. at 44)). 

321.	 Groeniger’s competitors were Ferguson, R&B Supply, Camellia Valley Supply, 

McGuire & Juvet, Pace Supply, Ed Walsh Company, and Kenko Utility Supply 

Company. (CX 2510 (Groeniger, Dep. at 49)). 

322.	 In 2010, Groeniger’s annual revenue was approximately $92 million; $2.9 million was 

from Fittings. (CX 2509 (Groeniger, IHT at 39-40)). 

323.	 In 2010, Groeniger’s market share ranged from 25% to 60% in the markets it served in 

northern California. (CX 2510 (Groeniger, Dep. at 135) (“Hayward market share was 

probably in the 40 to 50, 40 to 45%.”); CX 2510 (Groeniger, Dep. at 145) (“So I think 

our market share in that area [Modesto market] was significant. Probably in the 60s, high 

60 percentage points.”); CX 2510 (Groeniger, Dep. at 141) (over 50 percent in the 

Sacramento market); CX 2510 (Groeniger, Dep. at 148 (35% to 40% in the Chico 

market); CX 2510 (Groeniger, Dep. at 150) (60% in the Fresno market); CX 2510 

(Groeniger, Dep. at 150) (50% in the Bakersfield market); CX 2510 (Groeniger, Dep. at 

151) (60% in the Santa Maria market); CX 2510 (Groeniger, Dep. at 152) (25% to 30% 

in the Santa Paula market)). 

3.6.7.2 Key Employees 

324.	 Michael Groeniger was the president of Groeniger & Company from 1984 to 2011 when 

Groeniger & Company was purchased by Ferguson. (CX 2509 (Groeniger, IHT at 7); 

CX 2510 (Groeniger, Dep. at 125). Mr. Groeniger became the Chairman of the Board in 

1988 or 1989. (CX 2509 (Groeniger, IHT at 7)). 

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Illinois Meter is a member of The Distribution Group, also known as TDG. (Sheley, Tr. 

3378). 

Illinois Meter has five branches, located in Saint Louis, Missouri; Benton, Illinois; 

325.	 Mr. Groeniger’s responsibilities as president were to oversee the entire company; which 

he did by visiting his branches to make sure things were running well. (CX 2509 

(Groeniger, IHT at 7-8)). 

326.	 Historically, Mr. Groeniger developed the “long term relationships” with Groeniger’s 

manufacturers. (CX 2509 (Groeniger, IHT at 9)). 

3.6.8	 Illinois Meter 

3.6.8.1 Company Basics 

327.	 Illinois Meter is a Distributor of waterworks, utility, sewer, and gas products, including 

Fittings. (Sheley, Tr. 3376-3378). Illinois Meter purchases Fittings from McWane and 

Star. (CX 2516 (Sheley, Dep. at 11, 133)). 

328. 

329. 

Champaign-Urbana, Illinois; Decatur, Illinois; and Springfield, Illinois. (Sheley, Tr. 

3382). 

330.	 Illinois Meter’s competitors include HD Supply, Schulte Supply, Midwest Meter, and 

Midwest Municipal. (Sheley, Tr. 3381-3382). 

331.	 {

 (Sheley, Tr. 3427, in camera). 

332.	 {

 (Sheley, Tr. 3427-3429, in camera). 

333.	 {

 (Sheley, Tr. 

3428-3429, in camera). 

334.	 {

 (Sheley, Tr. 3429-3430, in camera). 

335.	 {

 (Sheley, Tr. 3430, in camera). 

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336.	 {

 (Sheley, Tr. 3431, in 

camera). 

337.	 {

 (Sheley, Tr. 3431-3432, 

in camera). 

338.	 {

 (Sheley, Tr. 3432, in camera). 

339.	 {

 (Sheley, 

Tr. 3432, in camera). 

340.	 {

 (Sheley, Tr. 3433, in camera). 

3.6.8.2 Key Employees 

341.	 Dennis James Sheley is the president and owner of Illinois Meter, and has been the owner 

of Illinois Meter for the last 28 years. (Sheley, Tr. 3375-3376). 

342.	 Mr. Sheley’s responsibilities at Illinois Meter include: visiting with customers, 

overseeing purchasing and sales decisions, and ultimate authority on the selection of 

waterworks suppliers, including Fittings suppliers. (Sheley, Tr. 3376-3378). 

343.	 Mr. Sheley is the chairman of the board of TDG, and one of nine equal voting members 

of TDG’s vendor selection committee. (Sheley, Tr. 3379). 

3.6.9	 C.I. Thornburg Company, Incorporated 

3.6.9.1 Company Basics 

344.	 C.I. Thornburg Company, Incorporated (“C.I. Thornburg”) is a waterworks Distributor, 

and is a member of TDG. (CX 2489 (Morrison, IHT at 6-8)). 

345.	 C.I. Thornburg has grown from one branch in 1973 to five branches: two in West 

Virginia, two in Kentucky and one in Tennessee. (CX 2489 (Morrison, IHT at 19)). 

346.	 C.I. Thornburg’s market share in West Virginia is 75-80%. (CX 2489 (Morrison, IHT at 

22)). C.I. Thornburg competes for sales to contractors with Ferguson Enterprises, Inc. 

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and HD Supply in West Virginia. Ferguson is primarily winning the rest of the West 

Virginia business. (CX 2489 (Morrison, IHT at 23-24)). 

347.	 In 2010, C.I. Thornburg’s total waterworks revenue was approximately $50 million and 

its revenue on Fittings was $1 to $2 million. (CX 2489 (Morrison, IHT at 24)). 

348.	 C.I. Thornburg purchases 85% of their imported Fittings from Sigma, 10% from Star and 

5% from Tyler. (CX 2489 (Morrison, IHT at 60)). 

349.	 C.I. Thornburg is a member of TDG. (CX 1362 at 002). 

3.6.9.2 Key Employees 

350.	 Edward Morrison Jr. is the president of C.I. Thornburg and has been since 1991. (CX 

2489 (Morrison, IHT at 6)). Mr. Morrison has worked in the waterworks industry for 39 

years. (CX 2489 (Morrison, IHT at 6)). 

351.	 Mr. Morrison’s role as president includes overseeing administrative functions, serving on 

various industry boards, vendor relations, helping with pricing and contractor sales, and 

municipal sales. (CX 2490 (Morrison, Dep. at 15) (“everything that’s involved in the 

day-to-day operation of the business”)). Mr. Morrison has personal knowledge of every 

aspect of the day-to-day operation of running a waterworks distribution business. (CX 

2489 (Morrison, IHT at 7)). 

3.6.10 Utility Equipment Company 

3.6.10.1 Company Basics 

352.	 Utility Equipment Company (“UECO”) is a Distributor that sells all materials related to 

underground water, sewer, and storm water retention and detention systems. (CX 2544 

(Coryn, Dep. at 8)). 

353.	 UECO has five Iowa branches located in Bettendorf, Dubuque, Des Moines, Sioux City, 

and Waterloo; one branch in Omaha, Nebraska; and another branch in Peru, Illinois. (CX 

2544 (Coryn, Dep. at 8-9)). 

354.	 UECO is a member of TDG. (CX 1362 at 002; RX-703 (Coryn, Dep. at 47)). 

355.	 Between 2007 and 2011, UECO’s annual revenues ranged from approximately $25 

million to approximately $33 million, and its annual Fittings revenues ranged from 

approximately $1 million to approximately $1.5 million. (CX 2544 (Coryn, Dep. at 11­

12)). 

3.6.10.2 Key Employees 

356.	 Michael R. Coryn is the president of UEC, which is a family company, and has been for 

17 years. (CX 2544 (Coryn, Dep. at 6)). Mr. Coryn’s responsibilities as president 

include making all major business decisions and involvement in purchasing and 

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inventory decisions and sales. (CX 2543 (Coryn, IHT at 9); CX 2544 (Coryn, Dep. at 

7)). 

3.6.11 Dana Kepner Company 

3.6.11.1 Company Basics 

357.	 Dana Kepner Company (“Dana Kepner”) is a Distributor that sells waterworks products, 

including Fittings, to End Users. (CX 2492 (Johnson, Dep. at 9, 39, 79)). 

358.	 Dana Kepner has 15 branches: one in Montana, one in Wyoming, three in Colorado, three 

in West Texas, six in Arizona, and one in Nevada. (CX 2492 (Johnson, Dep. at 9)). 

359.	 Dana Kepner is a member of TDG. (CX 1362 at 001). 

360.	 Between 2009 and 2011, Dana Kepner’s annual revenue has ranged from approximately 

$73 million to approximately $78 to $80 million. (CX 2492 (Johnson, Dep. at 10)). 

361.	 From 2009 to 2011, 4.0% to 4.5% of Dana Kepner’s revenue has come from Fittings. 

(CX 2492 (Johnson, Dep. at 10)). 

3.6.11.2 Key Employees 

362.	 Wayne Edward Johnson is president and part owner of Dana Kepner. Mr. Johnson has 

been President since 1994 and has worked for the company since 1991. (CX 2492 

(Johnson, Dep. at 6)). Mr. Johnson’s responsibility as president of Dana Kepner is “[t]he 

overall supervision of the company,” including overseeing the purchasing of Fittings. 

(CX 2492 (Johnson, Dep. at 7-8)). 

3.7	 DIFRA 

363.	 The Ductile Iron Fittings Research Association (“DIFRA”) is an Alabama nonprofit 

corporation incorporated on January 12, 2007. (CX 1480 at 007; Brakefield, Tr. 1220, 

1227). 

364.	 DIFRA’s members are McWane; Sigma; Star; and U.S. Pipe. (Joint Stipulations of Fact, 

JX 0001 ¶ 17 (four members); Brakefield, Tr. 1227-1228 (DIFRA remains in existence 

today)). 

365.	 In 2008, Mr. Pais, Mr. Rybacki, and Mr. Brakefield were involved with DIFRA on 

Sigma’s behalf, Mr. McCutcheon was involved with DIFRA on Star’s behalf, Mr. 

Tatman was involved with DIFRA on McWane’s behalf, and Mr. Crawford was involved 

with DIFRA on behalf of U.S. Pipe. (Brakefield, Tr. 1220-1221 (Mr. Bhattacharji’s 

involvement was “low-key”), 1270-1271; Tatman, Tr. 475; McCutcheon, Tr. 2416; CX 

2541 (Crawford, Dep. at 9-10)). 

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3.7.1	 Bradley Arant 

366.	 Thad G. Long, K. Wood Herren, and Michael D. McKibben of the Birmingham, 

Alabama law firm Bradley Arant Rose & White (“Bradley Arant”)) served as DIFRA’s 

attorneys, and helped to structure the information exchange operated by DIFRA. (CX 

2497 (Long, Dep. at 8-9) (describing initial involvement in DIFRA formation); CX 1083 

at 002 (Thad Long email describing Bradley Arant as counsel to DIFRA); CX 1473 at 

001 (first DIFRA meeting minutes); CX 0048 at 001 (third DIFRA meeting minutes); 

Tatman, Tr. 485). 

3.7.2	 Sellers Richardson 

367.	 DIFRA engaged the accounting firm of Sellers, Richardson, Watson, Haley & Logan, 

LLP (now known as Sellers, Richardson, Holman & West LLP) (“SRHW”) of 

Birmingham, Alabama to compile members’ Fittings shipment data and to report 

aggregated monthly data to each member. (CX 1333 at 003, 005 (January 2007 

engagement letter describing data aggregation function); Brakefield, Tr. 1236 (DIFRA 

retained the accounting firm in January 2007); CX 0160 at 002 (Long providing members 

with instructions for reporting data to SRHW in April 2008)). 

368.	 Richard Wallace Haley is an audit partner at SRHW, and was the senior person at SRHW 

responsible for providing services to DIFRA. (RX-679 (Haley, Dep. at 7, 9)). Margaret 

Powell, a manager in SRHW’s audit department, and Bree Holland, a senior auditor ta 

SRHW, were the primary contacts with DIFRA members. (CX 2520 (Haley, Dep. at 49­

50)). 

3.8	 AWWA 

369.	 The American Water Works Association is a waterworks industry trade association (CX 

2537 (McCutcheon, IHT (Vol. 1) at 30)). The AWWA establishes certain standards for 

the production of Fittings for use in the United States; all fittings have to comply with 

AWWA standards. (Minamyer, Tr. 3137; Tatman, Tr. 878; CX 2522 (Agarwal, Dep. at 

37); CX 2508 (Kuhrts Dep. at 30-31), in camera ({ 

). 

370.	 AWWA hosts an annual convention and trade show that is widely attended by suppliers, 

Distributors, municipalities, contractors, and engineers. (Pais, Tr. 1899-1901). The 

annual AWWA event is both socially- and business-oriented. Industry participants 

(almost 500 exhibitors) exhibit their products at booths, and there are technical sessions 

as well. (Pais, Tr. 1899-1901). 

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4 

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Industry Background 

4.1	 Fitting Basics 

4.1.1	 Applications 

371.	 Fittings are used in pressurized water distribution and treatment systems to join pipes, 

valves and hydrants, and to change, divide or direct the flow of water. (Joint Stipulations 

of Fact, JX 0001 ¶ 6; Tatman, Tr. 219-220; CX 2494 (R. Fairbanks, Dep. at 79); CX 2502 

(Prescott, Dep. at 51); CX 2489 (Morrison, IHT at 40); Thees, Tr. 3052-3053). 

372.	 Pressurized pipe applications, which include all potable water lines and some sewer lines, 

almost always use Fittings. (Webb, Tr. 2710-2711). Pressurized applications are those 

applications where the flow is not caused by gravity, and include pressurized water, 

pressurized reclaimed water, pump stations, treatment plants, and pressurized force main 

sewers. (Thees, Tr. 3053). All water lines are pressurized and some sewer lines are 

pressurized. (Thees, Tr. 3053). 

373.	 Fittings are relatively rarely used in gravity pipe lines; plastic fittings are more prevalent 

in those applications. (Webb, Tr. 2711-2712; CX 2489 (Morrison, IHT at 40) (Fittings 

are typically not used if the pipeline is not pressurized, as “[i]t would be overkill”)). 

374.	 Fittings are used for both “line” (i.e., underground) and “plant” projects. (Webb, Tr. 

2710). 

375.	 “Plant” work refers to waterworks projects for water treatment plants, pumping stations, 

or wastewater treatment plants, which process water so that it can be consumed and 

process sewage so that it is clean when it is dumped. (CX 2502 (Prescott, Dep. at 48-49); 

Webb, Tr. 2710; Tatman, Tr. 227-228)). Plant work often involves the use of Fittings in 

systems that are indoors. (CX 2480 (Napoli, Dep. at 19-20)). 

376.	 Plant work generally uses the largest size fittings; uses many different, uncommonly used 

configurations; and has special coating and painting requirements. (Pais, Tr. 1913-1914). 

377.	 “Line” work refers to waterworks projects related to pipes that are located under the 

street in order to move water from water supply facilities to neighborhoods, or from 

neighborhoods to sewage facilities. (CX 2502 (Prescott, Dep. at 48); Webb, Tr. 2710). 

In comparison to plant work, “underground” distribution network waterworks projects 

use more predictable configurations and numbers of Fittings. (Pais, Tr. 1913; CX 2480 

(Napoli, Dep. at 19-20) (describing line work as conveying water to and from 

neighborhoods, and as simpler and more straightforward than plant work)). 

4.1.2	 Shapes, Sizes, and Configurations 

378.	 There are several thousand unique configurations of Fittings in different shapes, sizes and 

coatings. (Joint Stipulations of Fact, JX 0001 ¶ 8). Each unique configuration has its 

own identifier and is a unique item or stock-keeping unit (SKU). (Tatman, Tr. 463; CX 

2500 (Swalley, Dep. at 104-105) (explaining that an SKU is a unique item). McWane 

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estimates that it carries approximately 2,000 Fittings SKUs (RX-637 (Jansen, Dep. at 

87)). 

4.1.2.1 Shape and Size 

379.	 Fittings come in several shapes, including elbows, reducers and “T’s.” (Tatman, Tr. 220­

221). 

380.	 Typically, ductile iron pipe fittings range in size from two or three inches to 48 inches. 

(CX 2521 (Agarwal, IHT at 64-65); CX 2491 (Johnson, IHT at 19-20) (“[W]hat we sell is 

basically 3 inch through 48 inch. . . . When you get into huge plants and huge 

transmission lines, you go up to 108 inches and that type. We don’t really get involved in 

that.”); CX 2525 (Minamyer, IHT at 95-96) (“three through 60”); CX 2483 (Tatman, IHT 

at 23) (“[W]ithin Union Foundry, we produced from three inches to 30 inches. . . . We do 

not manufacture currently any 36 through 48.”)). 

381.	 Two to twelve inch Fittings, or “small-diameter” Fittings, are predominately used for 

housing subdivisions and private contracting work. (Brakefield, Tr. 1279-1280; CX 

1479; CX 2477 (Jansen, Dep. at 89) (describing 2” to 12” fittings as small-diameter)). 

382.	 End Users of Fittings in the 14” through 24” range are generally municipalities or plants 

with long transmission lines funded by State Revolving Fund or EPA money. 

(Brakefield, Tr. 1281; CX 1479). 

383.	 Fittings 24” in diameter and below make up approximately { of the overall market 

for ductile iron pipe fittings. (See CX 1895 at 001, 005, in camera (ACIPCO data 

showing 2008 ACIPCO sales of { } tons of diameter 24” and below and { } tons of 

over 24”); CX 2486 (Burns, Dep. at 159-160) (describing CX 1895); RX-127 at 002 

(DIFRA data showing other suppliers’ combined 2008 sales of { } tons of diameter 

24” and below and { } tons of over 24”) (using the total tons shipped in calendar 

year 2008 from these documents, { } are of diameter 24” and below); CX 2502 

(Prescott, Dep. at 76-77) (85-95% of fittings sales are below 24”); CX 2510 (Groeniger, 

Dep. at 160-161) (explaining that Fittings below 24” “encompasses almost the whole 

band of fittings . . . almost a hundred percent”); CX 2492 (Johnson, Dep. at 71) (“The 

vast majority of them [Fittings] are under 24 [inches].”); CX 2504 (Thees, Dep. at 135) 

(Fittings below 24” “should cover the vast majority of what we sell”); CX 2538 

(McCutcheon, IHT (Vol. 2) at 322) (fittings over 24” in diameter are generally 

considered to be a large diameter and an unusual size for the industry)). 

384.	 Historically, the industry has always differentiated Fittings of 3” to 24” in diameter from 

Fittings of 30” or more in diameter. (CX 2533 (Bhargava, Dep. at 43) (“Q. . . . why does 

Star divide the utility fittings into the two categories, the three-inch to 24-inch and the 30­

inch and up? A. That is industry practice also.”)). 

385.	 Fittings above 24” in diameter, or “large-diameter” fittings, are predominately for public 

works jobs for large treatment plants or for moving water through large transmission 

lines. (Brakefield, Tr. 1281; CX 1479; CX 2477 (Jansen, Dep. at 90) (describing fittings 

over 24” in diameter as large-diameter)). 

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4.1.2.2 End Configuration 

386.	 There are several different types of Fittings “end configurations,” including “flanged,” 

“mechanical joint,” and “push-on.” (Webb, Tr. 2712-2713; Thees, Tr. 3052-3055)). 

387.	 “Flanged” Fittings are flat faced Fittings that connect to a flanged ductile iron pipe with 

nuts and bolts and a flat gasket sandwiched between the two flanges that provides a 

sealed joint. (Thees, Tr. 3054; Webb, Tr. 2713 (Flanged Fittings have a flanged end and 

are joined together with nuts and bolts)). Flanged fittings do not require an external 

restraint, and bolt directly onto a pipe. (CX 2480 (Napoli, Dep., at 22-23)). 

388.	 Flanged Fittings are typically used in above-ground applications, such as plants and lift 

stations. (Webb, Tr. 2713; Tatman, Tr. 227-228; Thees, Tr. 3054; CX 2502 (Prescott, 

Dep. at 18); CX 2480 (Napoli, Dep. at 22-23); CX 2477 (Jansen, Dep. at 78, 80) (flanged 

Fittings are typically used in plants, and are not recommended for below-ground 

applications)). State laws often forbid using flanged Fittings underground because their 

construction with nuts and bolts is prone to corrosion when the Fittings are buried. 

(Brakefield, Tr. 1280-1281). 

389.	 “Mechanical joint” (or “MJ”) Fittings do not employ nuts and bolts to connect to the 

ductile iron pipe, but use a gland that compresses the Fitting gasket against the ductile 

iron pipe as pressure flows through the system and an external restraint that secures the 

pipe to the fitting. (Tatman, Tr. 228; Webb, Tr. 2713; Thees, Tr. 3054-3055; CX 2480 

(Napoli, Dep. at 22-23)). 

390.	 Mechanical joint Fittings are typically used for non-plant, underground applications. 

(Tatman, Tr. 228; Webb, Tr. 2713; CX 2502 (Prescott, Dep. at 50); CX 2522 (Agarwal, 

Dep. at 84)). 

391.	 “Push-on” Fittings are Fittings that connect only by being pushed on to the pipe. (Webb, 

Tr. 2713). 

392.	 Push-on Fittings are used in underground applications. (Webb, Tr. 2713-2714; CX 2522 

(Agarwal, Dep. at 84)). 

4.1.2.3 Pressure Rating 

393.	 There are “full-body” and “short body” Fittings (Webb, Tr. 2712). Short-body Fittings 

are smaller and have thinner walls than Full-body Fittings. Full-body Fittings are used 

less often than short-body Fittings. (Webb, Tr. 2712-2713; CX 2477 (Jansen, Dep. at 

83)). 

394.	 Full-body Fittings are commonly referred to as C110 Fittings. (CX 2510 (Groeniger, 

Dep. at 159-160)). A C110 Fitting is a longer, thicker, and heavier Fitting used in 

approximately 10% of Fittings jobs. C110 is a type of AWWA specification. 

(McCutcheon, Tr. 2292; CX 2477 (Jansen, Dep. at 83)). 

45 
Short-body Fittings are commonly referred to as C153 Fittings. A C153 Fitting is thinner

PUBLIC RECORD

395. 

and lighter than a C110. C153 is a type of AWWA specification. (McCutcheon, Tr. 

2292; CX 2477 (Jansen, Dep. at 83-84)). 

396.	 C110 and C153 Fittings are pressure rated up to 350 pounds per square inch, or PSI. 

(Thees, Tr. 3053). 

4.1.2.4 Coating and Lining 

397.	 Suppliers generally line flanged Fittings with cement, but can also line them with 

polyethylene or epoxy to prevent corrosion. (Thees, Tr. 3055); CX 2509 (Groeniger, IHT 

at 42) (“special districts require epoxy lining”); CX 2491 (Johnson, IHT at 18) (“where 

they’re running sewer material through it that may be epoxy lined or something like 

that”)). 

4.1.2.5 “A”, “B”, and “Oddball” Fittings 

398.	 Of the many configurations of Fittings, a small number of Fittings cover a large 

percentage of the volume of Fittings sold in the market. (Tatman, Tr. 225). 

399.	 Approximately 80% of the demand for Fittings may be serviced with approximately 100 

or fewer commonly used sizes and configurations of Fittings. These Fittings are 

commonly referred to in the industry as “A” or “B” Fittings. (Joint Stipulations of Fact, 

JX 0001 ¶ 9; CX 0120 at 10; Tatman, Tr. 225; Bhargava, Tr. 3010-3011 { 

}; CX 2522 (Agarwal, 

Dep. at 73), in camera { 

}). 

400.	 A and B items are relatively fast-moving Fittings items 

(Bhargava, Tr. 

3010-3011, in camera { 

}; CX 2477 (Jansen, Dep. at 91) (A-items are frequently sold 

items); Webb, Tr. 2720-2722 (testifying that Distributors sell A-items quickly, and Bitems are sold quickly, although not as fast as A-items); Thees, Tr. 3057 (A-items are the 

Fittings customers most commonly use; customers use B-items less than A-items); CX 

2533 (Bhargava, Dep. at 62); CX 2522 (Agarwal, Dep. at 73), in camera (describing Aitems as between 4” and 12” in diameter)). 

401.	 “C” and “D” items are very low volume items (e.g., items for which McWane sells fifty 

or fewer per year), and are relatively expensive to manufacture. (Tatman, Tr. 225-226; 

see McCutcheon, Tr. 2292-2293; CX 2533 (Bhargava, Dep. at 62)). 

402.	 “Oddball” Fittings are Fittings that are not routinely used on every project, and that End 

Users might request once a year or every five years. Distributors prefer not to stock 

Oddball Fittings. (Webb, Tr. 2721-2722; CX 2513 (Webb, IHT at 160); Thees, Tr. 3057­

3058; Thees, Tr. 3057 (oddball Fittings are used only rarely)). 

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4.1.3	 Manufacturing 

403.	 Generally, a Fitting is manufactured through the following steps: melting scrap metal in a 

cupola; transferring the molten metal to a casting area via a transfer ladle; fitting cores 

into molds so that the molded fitting is hollow; pouring the molten iron; shaking the 

casting out of the mold; machining off gates and risers, and creating bolt holes; cleaning; 

preparing for cement lining; painting; packaging; and shipping. (Brakefield, Tr. 1412­

1414; Rona, Tr. 1488 (steps that may need to be performed after the casting of a Fitting 

include machining, cement lining and painting)). 

404.	 “Patterns” are made of aluminum, stainless steel, or wood. Manufacturers use patterns to 

make impressions in sand for pouring molten iron that takes the shape of the pattern. 

(CX 2522 (Agarwal, Dep. at 74)). 

405.	 Disamatic (or “DISA”) molding lines are automated and represent the most efficient and 

economical manufacturing process for small-diameter Fittings. (Tatman, Tr. 435; Rona, 

Tr. 1489). 

406.	 McWane’s “DISA” automated molding unit for Fittings castings in Anniston, Alabama 

cost $20 million, and can produce fittings up to 8” in diameter. (Tatman, Tr. 435). DISA 

is a brand of fittings molding equipment. (Tatman, Tr. 447). 

407. “Cope and drag” is a type of molding process for Fittings production. Cope and drag 

patterns are molds where the Fitting casting is produced in halves that are put together. 

(Rona, Tr. 1509-1510). The foundry pours molten iron into the cope and drag pattern to 

produce a Fitting. A foundry cannot produce a casting that is larger than the heights of 

the cope and drag put together. (CX 2505 (Frazier, Dep. at 55-56)). 

408.	 “Lost foam” is another Fittings production method, and involves placing styrofoam 

replicas of Fittings in casting sand. Molten metal is then poured into the sand, and the 

metal replaces the styrofoam. (Rona, Tr. 1510). 

409.	 A flask is a steel vessel that holds a Fittings pattern during the manufacture of a Fitting. 

(Rona, Tr. 1511, 1549-1550; CX 0282 at 008, 011 (showing lost foam flask and two 

Domestic lost foam Fittings produced by Sigma)). 

4.1.4	 Related Waterworks Products 

410.	 The primary products used in most waterworks projects are ductile iron and PVC pipe. 

Other waterworks products include the following: high density polyethylene pressurized 

pipe; drainage pipe; concrete pipe; gate valves; fire hydrants; butterfly valves; service 

brass; marking tape; water meters; joint restraints; glands; and mechanical joint and 

flanged Fittings. (Thees, Tr. 3050-3051; see also Sheley, Tr. 3386 (primary waterworks 

products are: pipe, valves, fire hydrants, service material, repair clamps, couplings, and 

Fittings); CX 2477 (Jansen, Dep. at 63-64) (listing pipes, fittings, valves, glands, meters, 

restraints, nuts, bolts and accessories as necessary items for waterworks projects)). 

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411.	 “Glands” are made of ductile iron, and are used to create a seal between a pipe and a 

mechanical joint Fitting. (Tatman, Tr. 458-461; CX 1653 at 004; CX 2477 (Jansen, Dep. 

at 67)). 

412.	 “Joint restraints,” like glands, are made of ductile iron and also create a seal between a 

pipe and a fitting. In addition, a joint restraint is bolted on to both the pipe and the fitting 

in order to keep pipes from blowing out of fittings when the pipe is under pressure. 

(Tatman, Tr. 460-461; CX 2477 (Jansen, Dep. at 66-67)). 

413.	 “Accessories” include various products associated with Fittings, such as bolts, nuts, 

gaskets, and flanges. (McCutcheon, Tr. 2255). Glands are considered to be a Fitting 

accessory. (Tatman, Tr. 461). McWane sometimes sells Fittings with accessories. 

Fittings alone and Fittings with accessories have different price points and SKUs 

associated with them. (Tatman, Tr. 462-463). 

414.	 “Municipal castings” is a category that consists of products such as manhole covers and 

drainage grates. (CX 2539 (McCutcheon, Dep. at 8); CX 2543 (Coryn, IHT at 21-22)). 

4.2	 Fitting Sales Basics 

4.2.1	 Fittings Are a Commodity Product Produced Pursuant to Industry 

Wide Standards 

415.	 Fittings are homogeneous commodity products produced to American Water Works 

Association (“AWWA”) standards and specifications. (Joint Stipulations of Fact, JX 

0001 ¶ 7; Answer at ¶ 27(a); Rybacki, Tr. 1114 (“We’re selling a commodity. Our 

products are commodity driven.”); CX 2477 (Jansen, Dep. at 18) (referring to Fittings as 

a commodity product)). 

416.	 Any Fitting that meets an AWWA specification is functionally interchangeable with any 

other Fitting that meets the same specification. (Tatman, Tr. 878-879 (Tatman referring 

to Domestic versus imported Fittings: “They’re exact one for one. . . . It’s corn. One 

kernel of corn, another kernel of corn. . . . There’s no difference in how you apply or use 

the product.”); Pais, Tr. 1922-1923 (“[T]he product is interchangeable. It’s a common 

product. Yes, we like to believe our quality is better, our service is better, but at the end 

of the day, that really doesn’t translate into a premium.”); CX 2477 (Jansen, Dep. 141) 

(Fittings are commodity products); Rybacki, Tr. 3572 (“our products are commodities, 

pretty much all work the same”)). 

417.	 Fittings produced by Sigma, McWane and Star that meet the same AWWA specifications 

are interchangeable with each other. (CX 2477 (Jansen, Dep. at 86)). 

418.	 Imported Fittings are equal in quality to Domestic Fittings. (CX 2535 (Bhutada, Dep. at 

13-14) (noting only difference between imported and Domestic Fittings is place of 

origin)). Specifically, there is no difference in form or functionality of Domestic and 

imported Fittings. (RX-694 (Bhutada, Dep. at 14); Webb, Tr. 2730-2731 (there is no 

functional difference between Domestic and imported Fittings)). 

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4.2.2	 Demand Inelasticity 

419.	 Demand for Fittings is largely driven by housing-related infrastructure construction and 

by construction of wastewater treatment plants, which in turn are driven by such factors 

as the rate of housing growth, and the age and condition of existing systems. (Joint 

Stipulations of Fact (JX 0001) ¶ 11; CX 2480 (Napoli, Dep. at 20-21) (demand for 

Fittings related to housing demand)). 

420.	 Fittings are a small sub-segment of the overall waterworks market, generally comprising 

5% or less of the total cost of a typical waterworks project. (Joint Stipulations of Fact, 

JX 0001 ¶ 10; Tatman, Tr. 220-221); (CX 2538 (McCutcheon, IHT (Vol. 2) at 344) (A 

10% increase in price of Fittings would not prompt an End User to forego the purchase of 

Fittings because the Fittings are a small portion of the total cost of the project to the End 

User); CX 2477 (Jansen, Dep. at 61) (estimating that Fittings comprise approximately 3% 

to 5% of materials used in waterworks projects)). Fittings account for only 1.5% to 2% 

of the cost of the materials in a typical line job. (CX 2538 (McCutcheon, IHT (Vol. 2) at 

344-345)). 

421.	 Because Fittings represent a small portion of a Distributor’s overall bid for a waterworks 

project, the price of Fittings is not a major factor in determining whether a Distributor 

wins the bid. (CX 2489 (Morrison, IHT at 37-38) (“So you’re not going to get away with 

a big price discrepancy on anything, including fittings, but fittings at the time of the bid is 

not the driving factor.”)). The price of the pipe (PVC or ductile) is the primary factor 

when pricing a bundle of goods. (CX 2489 (Morrison, IHT at 37) (“the thing that 

[contractors] gauge that they’re most interested in is the pipe price. . . . that’s what 

everybody’s maneuvering and manipulating on the day of the bid”)). 

422.	 Demand for Fittings is inelastic; End User demand is not dependent on the price of the 

Fitting. In other words, a decrease in Fittings prices has not caused an increase in 

demand, nor has an increase in Fittings prices caused a decrease in demand. (CX 2477 

(Jansen, Dep. at 81-82 (testifying that he has not observed the demand of Fittings being 

affected by the price of Fittings); see also Webb, Tr. 2723 (testifying that he has “never 

seen a correlation with any of our product lines up or down that impacted the demand 

side.”); Thees, Tr. 3058 (“Q. When the price of fittings go down, do your sales of fittings 

go up? A. No. Q. And when the price of fittings go up, do your sales of fittings go down? 

A. No.”); CX 2538 (McCutcheon, IHT (Vol. 2) at 344) (demand for Fittings is inelastic, 

because there is no natural substitute for Fittings that is within the price range of 

Fittings)). 

423.	 Engineers that write specifications for Fittings are usually not concerned about price. 

(CX 2523 (Bhattacharji, Dep. at 134)). 

424.	 In a September 2008 marketing strategy memorandum, Mr. Pais explained that price 

elasticity for Fittings is low, and “lower prices don’t necessarily translate into 

proportionately higher volume.” (CX 1155 at 003 (stressing the need for “a certain 

amount of discipline and a selectively aggressive sales strategy” because of low demand 

elasticity)). 

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425.	 Some municipalities stock inventory and when they buy inventory they put out a list and 

buy by line items. (CX 2502 (Prescott, Dep. at 16)). 

426.	 Some municipalities put up for bid an annual contract for specific items, for example, 

Fittings, hydrants, valves, PVC pipe or ductile iron pipe. (CX 2480 (Napoli, Dep. at 37­

41) (describing the annual contract bidding process for some municipal governments and 

municipal water authorities)). Whoever is the low bidder on the contract holds the price 

for that item and supplies the item to the municipality for the year. (CX 2509 

(Groeniger, IHT at 46)). Most waterworks projects are individual projects subject to a 

bidding process. (CX 2516 (Sheley, Dep. at 108-109); CX 2504 (Thees, Dep. at 139)). 

4.2.3.1 Specifications 

427.	 The Fittings bidding process on an individual waterworks project begins with an End 

User completing a specification and publicly or privately requesting bids from 

contractors. (Thees, Tr. 3065-3066). 

428.	 When a municipality or regional water authority undertakes a waterworks project, it will 

generally issue specifications for all of the pipes, valves, hydrants, Fittings and related 

waterworks equipment needed for the project, and seek bids from contractors for its 

completion. (CX 2546 (Gibbs, Dep. at 61-62) (“A particular project you’re asked to give 

a bid on includes everything on the project.”); CX 2504 (Thees, Dep. at 138-140) (Once a 

project is “put on a bid list” the contractor begins “soliciting bids from suppliers for the 

various components that make up that project.”)). 

429.	 Project consulting engineers or municipal water districts (or both) write Fittings 

specifications. (Minamyer, Tr. 3136). 

430.	 To become an approved supplier for a particular water district End User, a supplier may 

need to call the district, give them a sales pitch and ask them to be included in their 

specifications. (Minamyer, Tr. 3137). 

431.	 If a particular brand of a waterworks item (e.g., hydrants, valves, or meters) is listed in a 

specification, it is difficult to change the specification. (CX 2502 (Prescott, Dep. at 75) 

(specification is “very, very hard to break”)). A specification for Fittings may, but does 

not typically, specify a particular brand or supplier of Fittings. (CX 2510 (Groeniger, 

Dep. at 170) (“Q. So what was the language used to specify a domestic fitting prior to the 

ARRA period? A. Well, they would use an AWWA standard, not list a manufacturer[.]”); 

CX 2492 (Johnson, Dep. at 82) (“Q. Do they ever specify a supplier of a fitting? A. 

Occasionally on very – if it’s a specialized valve or a fire hydrant or something like this, 

yes. Q. Do you ever see a supplier’s name for the fittings? A. Very seldom if at all.”); 

Thees, Tr. 3068 (explaining that specifications “state whatever AWWA conforming” 

standard is required, which determines whether the “fitting is acceptable” on a project)). 

432.	 Some End Users are willing to accept Fittings from different suppliers on the same 

project. (CX 2501 (Prescott, IHT at 69) (explaining that in the New England markets it is 

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“very, very rare” to have an engineer that wants “all of the fittings to be the same name”); 

CX 2489 (Morrison, IHT at 38) (“Q. Are your customers willing to accept the ductile 

iron pipe fittings of several different suppliers on a particular project? A. Yes.”); CX 

2527 (Pais, IHT at 47) (“As long as they [Fittings] meet the appropriate standards, which 

in most cases is AWWA, sure. They’re meant as interchangeable standards.”)). 

433.	 If a specification allows multiple brands of Fittings, it is the Distributor that decides 

which Fittings to use for the waterworks project. (CX 2477 (Jansen, Dep. at 139)). 

434.	 Once contractors receive the specification, they solicit bids and other assistance from 

Distributors that can supply the various products for that project. (CX 2504 (Thees, Dep. 

at 139)). 

435.	 Distributors provide the price for each product individually when responding to a project 

bid. (CX 2502 (Prescott, Dep. at 16). 

4.2.3.2 Material Takeoffs 

436.	 A contractor may request a “material takeoff” from a Distributor when the contractor 

wants to submit a bid for the project. (CX 2502 (Prescott, Dep. at 96 (“we’ll do a takeoff 

to the material that’s required for that project”)). 

437.	 A “material takeoff” is a process whereby a Distributor’s sales personnel look at a 

project’s blueprints and gather a list of materials that the End User will need to build the 

project. (Thees, Tr. 3037, 3066). After performing a material takeoff, the Distributor 

provides the bidding contractor with a quotation for all of the waterworks products 

needed to complete the project. (Thees, Tr. 3066-3067). 

438.	 Distributors typically do not specify the manufacturer of the Fittings when providing a 

material take off. (Thees, Tr. 3048 (“it’s not out of the realm of possibility that fittings 

may be specified by brand, but that is not as common as what you would see on . . . 

valves, hydrants and service brass.”); CX 2502 (Prescott, Dep. at 97-98) (“So we don’t 

even say that, we just say this is a six by six mechanical joint ductile iron cement line 

T.”); CX 2492 (Johnson, Dep. at 82) (“Q. Do you ever see a supplier’s name for fittings? 

A. Very seldom if at all.”)). 

4.2.3.3 Submittals 

439.	 A “submittal” is a packet of information provided by a Distributor to an End User after 

the Distributor has been selected that identifies the types of products and brands that are 

being supplied. The End User will review the submittal to make sure it conforms to the 

specifications. (Thees, Tr. 3066-3069; CX 2489 (Morrison, IHT at 38) (Distributors 

provide a submittal after the contractor wins the bid and places a purchase order with the 

Distributor)). Distributors supply whatever brand was listed on the submittal documents. 

(CX 2489 (Morrison, IHT at 38) (providing example of a submittal as stating, “These 

fittings are going to be from Tyler or SIGMA or Star.”)). 

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4.2.3.4 Purchase Orders 

440.	 After a contractor wins its bid, it contacts the Distributor to discuss scheduling, and to 

submit either a verbal or written purchase order. (Thees, Tr. 3069-3070). After it places 

the purchase order, the contractor will call to request that the Distributor release product, 

and the Distributor will supply product to the waterworks project either from its stock, or 

via a direct purchase order from the Distributor to a supplier who will deliver the product 

to the project site. (Thees, Tr. 3069-3070). 

4.2.4	 Lowest Price Fittings Typically Win the Sale 

441.	 Because Fittings are a commodity, price and relationship are the dispositive factors in 

making a Fittings sale. (Minamyer, Tr. 3135 (“[W]e were selling a commodity, and 

pretty much everybody’s fitting was the same, so it was -- they would buy from who had 

the best price and who they liked the best.”)). 

442.	 Fittings suppliers believed that price was increasingly becoming the most important 

factor when selling Fittings to Distributors. (CX 2477 (Jansen, Dep. at 143)). 

443.	 Typically, the Fittings supplier with the lower price wins the job. (CX 2480 (Napoli, 

Dep. at 60)). 

444.	 From 2005 through 2009, Star believed that it needed to be the lowest priced competitor 

to win Fittings business. (Minamyer, Tr. 3146). If a customer provided Star with a 

competitor’s lower prices, Star would react to that pricing by lowering its own price. 

(Minamyer, Tr. 3148-3150). The Fittings offered by McWane, Sigma, and Star are 

basically identical in terms of function or quality and therefore Star could not charge a 

higher price than that charged by McWane and Sigma except in limited situations in 

filling certain specific orders. (CX 2525 (Minamyer, IHT at 48)). Star could rarely 

justify charging a higher price for Fittings on the basis of providing better service than 

McWane or Sigma. (CX 2525 (Minamyer, IHT at 48)). 

4.2.5	 Lag Between Sale and Shipping 

445.	 The amount of time from the initial Fittings bid or order to final delivery is not 

systematic, but is generally inconsistent and varies from market to market, ranging from 

immediate delivery to 30, 60, or 90 days. (CX 2502 (Prescott, Dep. at 16) (“from zero to 

it could be as much as two months. That would be very uncommon, but I – the average 

probably two to three weeks”); CX 2504 (Thees, Dep. at 93) (explaining that Fittings can 

be shipped “next-day air”); CX 2522 (Agarwal, Dep. at 89), in camera { 

}). 

446.	 Fittings invoice data typically reflects Fittings purchases by Distributors that occurred 30­

60 days prior to the invoice. (CX 1181 at 003 (“Invoice data reflects market pricing of 

30-60 days prior.”)). 

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4.3	 Domestic and Open Specifications 

447.	 End Users writing the specifications determine whether a job requires Fittings that are 

manufactured in the United States (“Domestic Fittings”).2 (Answer at ¶ 19; Webb, Tr. 

2732-2733). 

448.	 A “Domestic” or “Domestic-only” specification or project requires Domestic Fittings to 

be used for that waterworks project, either because of End User preference or because it 

is required by municipal, state, or Federal law. (Joint Stipulations of Fact, JX 0001 ¶ 13; 

Tatman, Tr. 236, 273; McCutcheon, Tr. 2265-2266). Such specifications (“Domesticonly Specifications”) have been increasing for a variety of reasons, including patriotism, 

a concern for the unemployment rate in the United States, and other reasons. (CX 2537 

(McCutcheon, IHT (Vol. 1) at 91)). 

449.	 The entire Commonwealth of Pennsylvania, federal government projects, air force bases, 

and some municipalities around the country require Domestic Fittings, even without the 

Buy American provisions in ARRA. (McCutcheon, Tr. 2267-2268; CX 2523 

(Bhattacharji, Dep. at 127) (Pennsylvania has a Buy American law); CX 2531 (Rybacki, 

Dep. at 270-272) (discussing CX 1151) (“Pennsylvania is almost all domestic. It’s a 

Steel Procurement Act, so it’s Tyler’s state. So they have their own multiplier; and, you 

know, nobody else really participates in Pennsylvania.”); Rona, Tr. 1520-1521; Webb, 

Tr. 2732-2733 (testifying that some projects had Domestic-only Specifications before 

ARRA was enacted, and some do today); RX-637 (Jansen, Dep. at 99-100) (attributing 

Pennsylvania’s Domestic Fittings requirements to the Pennsylvania Steel Act)). 

450.	 Projects that do not require that Domestic Fittings be used – i.e., that allow Fittings 

manufactured anywhere in the world – are referred to as “Open Specification” projects. 

(Tatman, Tr. 274; McCutcheon, Tr. 2266). 

451.	 Domestically manufactured Fittings can be used in Open Specification projects, but 

imported Fittings cannot be used in Domestic-only projects. (CX 2516 (Sheley, Dep. at 

155-156) (“Q. Can you put a domestic in an import job? A. Yes. Q. Can you put an 

import in a domestic job? A. Domestic only, no.”); CX 2501 (Prescott, IHT at 41) (“you 

can’t supply foreign for domestic, but you can do vice versa”); Thees, Tr. 3056, 3078 

(not aware of any instance where he supplied non-Domestic Fittings to a Domestic-only 

job); Webb, Tr. 2717-2718 (cannot supply imported Fittings when Domestic Fittings are 

specified because “[t]hat would not meet the specification.”); Thees, Tr. 3056; CX 2510 

(Groeniger, Dep. at 171) (explaining that a wide open specification allows import Fittings 

to be used)). 

452.	 At various times, McWane has referred to the mix of imported and domestically 

manufactured Fittings that it supplies to Open Specification projects as “blended” or 

“non-Domestic” Fittings. (Tatman, Tr. 273-274 (discussing RX-410, 2008 blended and 

2

 Except where otherwise noted or where the context otherwise requires, the term “Domestic 

Fittings” will refer herein to Domestic Fittings sold into Domestic-only Specifications. 

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domestic multiplier maps); CX 2440 at 002 (“Non Domestic” multiplier map); Tatman, 

Tr. 320-321 (discussing CX 2440)). 

453.	 Waterworks jobs that require Domestic Fittings also require domestically manufactured 

restraints, glands, and other accessories. (Tatman, Tr. 463). 

4.4	 Market Structure 

4.4.1	 Suppliers 

454.	 Star, Sigma and McWane all sell Fittings, joint restraints, castings, and accessories. 

(McCutcheon, Tr. 2254-2255; CX 2528 (Pais, Dep. at 7-8); CX 2442-A at 001; Tatman, 

Tr. 319, 1009-1010). 

455.	 In 2008 and 2009, and “historically for a number of years,” McWane’s primary 

competitors in the Fittings market were Sigma and Star. (Tatman, Tr. 245; CX 2480 

(Napoli, Dep. at 59) (McWane’s two primary competitors are Sigma and Star); CX 2477 

(Jansen, Dep. at 70) (considers the other suppliers of Fittings as his competitors); (CX 

2480 (Napoli, Dep. at 59-60) (McWane’s primary competitors in the sale of Fittings are 

Star and Sigma); Pais, Tr. 1904 (in late 2007 Sigma’s primary Fittings competitors were 

McWane and Star); Pais, Tr. 2006 (McWane, Sigma, and Star are “the three primary 

suppliers” of Fittings); CX 2536 (Leider, Dep. at 18) (Star’s major competitors in 2008 

and 2009 for the sale of Fittings were Sigma and McWane)). 

456.	 As a group, McWane, Sigma, and Star, account for more than { } of Fittings 

(including both Domestic and imported) sold in the United States. (CX 2260 (Schumann 

Rep. at 17 - 18 tbl. 1), in camera (“McWane, Sigma, and Star’s market shares total 

{ } of U.S. shipments of ductile iron pipe fitting of 24 inches or less.”); Schumann, 

Tr. 3795; see also Tatman, Tr. 241-242, 559-560 (estimating 2008-2009 combined 

market share of 90% to 92%, including Fittings above 24” in diameter); Pais, Tr. 1981­

1982 (estimating combined market share of 91% or 92%); McCutcheon, Tr. 2256 

(estimating combined market share between 90% and 95%); CX 2500 (Swalley, Dep. at 

32-33, 134) (Electrosteel USA considers McWane, Star and Sigma the primary Fittings 

competitors, since they collectively represent 90% of the overall Fittings market share 

nationwide); CX 1709 at 001, in camera (Star estimated its market share for fittings at 

between { } and { } in 2007 and first quarter 2008)). 

457.	 McWane, Sigma, and Star had the following shares of United States Fittings sales, by 

tonnage, for the years 2007 through 2011: 

2007 2008 2009 2010 2011 

McWane 

Sigma 

Star 

{ } { } { } { } { } 

{ } { } { } { } { } 

{ } { } { } { } { } 

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(CX 2260 (Schumann Rep. at 18 tbl. 1), in camera; see also CX 1163 at 006 (August 4, 

2008 Pais email describing McWane, Sigma, and Star as the three suppliers of AWWA 

fittings, with McWane holding a 45% market share, Sigma holding about 30% and Star 

holding about 20%)). 

458.	 McWane and Star had the following shares of United States Domestic Fittings sales, by 

tonnage, for the years 2010 and 2011: 

2010 2011 

McWane { } { } 

Star { } { } 

(CX 2260 (Schumann Rep. at 19 tbl. 2), in camera)). 

459.	 A small group of fringe suppliers (such as Metalfit, SIP, NAPAC, NACIP, Electrosteel 

and ACIPCO) constitute the balance of the market. (CX 2260-A (Schumann Rep. at 18) 

(“A small group of fringe suppliers import Fittings into the United States.”); 

McCutcheon, Tr. 2255-2256 (estimating combined market share of these companies at 

5% to 10% of Fittings sales (in tons))). 

460.	 As described in a 2009 McWane budget planning document, McWane’s “primary 

competitors” in Fittings are Sigma and Star, with SIP and NAPAC as “Second tier” 

competitors. (RX-618 at 004 (noting that Electrosteel was a potential entrant in 2009). 

461.	 Pricing decisions of companies such as ACIPCO, NAPAC, and Metalfit do not affect the 

ability of Star, McWane, and Sigma to implement a price increase. (CX 2538 

(McCutcheon, IHT (Vol. 2) at 394)). 

462.	 Sigma and Star have larger shares in the market for large fittings, in which McWane is 

not as significant a competitor. (Schumann, Tr. at 4111 (“I found in my analysis of the 

data that only about 5 percent of the large fittings were produced by McWane in 

2008 . . . .”); CX 2531 (Rybacki, Dep. at 198) (large fittings “was [Sigma’s] strong point 

and Star’s Strong point as well . . . .”); (Tatman, Tr. 229 (Sigma and Star are better at 

plant work than McWane); Pais, Tr. 1915 (McWane “never had a plant work specialty” 

and “[f]or a long time they did not even produce most of the fittings used in plant work, 

such as the larger ones”)). 

4.4.2	 Foundries 

463.	 Ductile iron foundries are high-fixed-cost businesses that produce castings pursuant to 

purchase orders for producers of Fittings and other iron products. (CX 2505 (Frazier, 

Dep. at 23, 26-27); CX 2507 (Glidewell, Dep. at 21, 138); RX-658 (Keffer, Dep. at 14); 

RX-657 (Teske, Dep. at 22). 

464.	 Fittings castings are unfinished, and may require the drilling of holes, turning and boring 

after shipment. (CX 2505 (Frazier, Dep. at 64)). 

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465.	 Foundries sell to (or are owned by) Fittings suppliers, not Distributors or End Users. (CX 

2505 (Frazier, Dep. at 68-69); CX 2507 (Glidewell, Dep. at 122-123); CX 2517 (Hall, 

Dep. at 148-150)). 

4.4.3	 End Users 

466.	 The typical end users of Fittings are municipalities, regional water authorities, and the 

contractors they engage to construct waterworks projects (collectively, “End Users”). 

(Joint Stipulations of Fact, JX 0001 ¶ 12; Saha, Tr. 1156; CX 2502 (Prescott, Dep. at 14); 

CX 2489 (Morrison, IHT at 29); McCutcheon, Tr. 2257 (End Users are generally 

contractors and municipalities); Sheley, Tr. 3386 (Illinois Meter’s customers include 

utility contractors, municipalities, rural water districts, public water supply companies, 

and water and sewer service plumbers); Rybacki, Tr. 3487 (Fittings End Users are cities, 

towns, major water authorities, and contractors)). 

467.	 Contractors have a specialized set of skills, and typically do either plant work or line 

work, but not both. (CX 2489 (Morrison, IHT at 30) (“Some [contractors] are good at 

laying water lines, but they wouldn’t build a water plant if their life depended on it. But 

then somebody that just does water plant work probably isn’t going to bid a bunch of 

water line work.”); CX 2489 (Morrison, IHT at 14) (“An underground contractor that is 

laying water line to the building or to the house, he couldn’t buil[d] the house and the guy 

in the house couldn’t lay the water line.”)). 

468.	 Municipalities typically outsource large waterworks projects to contractors. (CX 2489 

(Morrison, IHT at 31) (“Typically a municipality is not going to have enough people on 

the payroll to be able to do a major project.”)). 

469.	 The relationship between Distributors and contractors is very important, with contractors 

tending to use specific Distributors more than others. Contractors typically deal with a 

limited number of waterworks Distributors. (CX 2477 (Jansen, Dep. at 18-19) 

(describing relationship between contractors and Distributors as a “lifeline” for 

Distributors); CX 2480 (Napoli, Dep. at 15) (contractors tend to have relationships with 

specific Distributors, although this has deteriorated due to the economic decline and 

pricing pressure); CX 2489 (Morrison, IHT at 23) (explaining that 75-80% of C.I. 

Thornburg’s contractor customers are giving 80-90% of their business to them); CX 2501 

(Prescott, IHT at 30, 32 (some contractor customers give all of their business to one 

Distributor)). 

470.	 Contractors typically look to work with Distributors that they are close to geographically 

and have relationships with. (CX 2489 (Morrison, IHT at 10). CX 2477 (Jansen, Dep. at 

18-19) (describing relationship between contractors and Distributors as a “lifeline” for 

Distributors); CX 2480 (Napoli, Dep. at 13-15) (contractors tend to have relationships 

with specific Distributors, although this has deteriorated due to the economic decline and 

pricing pressure)). 

471.	 End Users may shift their business to a different Distributor if a Distributor fails to 

provide the entire bundle of goods. (CX 2501 (Prescott, IHT at 58) (“The scary part is 

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not losing them just once for the one job we couldn’t supply, why would he come back to 

us if the other guy took care of him. And the guy has been trying to get his business for 

whatever, take a number, 20 or 30 years. So the minute you give up on it and let the 

competition in the door, you could be saying bye-bye for a long period of time.”); CX 

2489 (Morrison, IHT at 29) (“as your service level decreased, the contractor would quit 

doing business with you”); CX 2489 (Morrison, IHT at 74-75) (“[I]f there’s a project 

going on . . . that requires domestic fittings and I can’t get them fittings, one, I’m going to 

lose that order, and I’m probably going to lose future orders because they’re going to say: 

Well, hey, you –and, plus, word amongst contractors is going to be, ‘C.I. Thornburg 

reneged, failed, couldn’t supply fittings on this project. You better be careful on your 

project.’”); CX 2489 (Morrison, IHT at 75) (It would be “devastating” to a Distributor if 

it could not supply Fittings on a project: “I’m choosing the word ‘devastating.’ I mean, it 

would not be good to not be able to supply fittings.”)). 

4.4.4	 Distributors – General 

472.	 Wholesale waterworks distributors (“Distributors”) purchase Fittings from suppliers and 

resell them to End Users. (Webb, Tr. 2707, 2726-2727; Thees, Tr. 3051, 3082). 

473.	 McWane does not sell to all Distributors, and would not be interested in selling Fittings 

through Distributors that are not historically in the waterworks industry. (CX 2477 

(Jansen, Dep. at 151-152) (reasoning that such Distributors would not be committed to 

the Fittings industry, would be unlikely to have the necessary relationships with 

contractors to be successful at selling Fittings, and that dealing with such Distributors 

could cause friction with McWane’s existing distribution relationships)). 

474.	 Waterworks Distributors typically do not service the plumbing market or sell plumbing 

materials. (CX 2489 (Morrison, IHT at 13) (explaining that plumbing is a “market we 

don’t know, understand, have any customer base with.”); see also CX 2480 (Napoli, Dep. 

at 34-35) (explaining that plumbing market is different)). 

4.4.4.1 Virtually All Fittings Are Sold Through Distributors 

475.	 McWane, Sigma, Star, and others sell Fittings directly to Distributors, which then re-sell 

the Fittings to End Users. (Joint Stipulations of Fact, JX 0001 ¶ 14; Tatman, Tr. 251-252 

(99% of McWane’s sales of ductile iron pipe fittings are through Distributors, rather than 

direct to contractors); McCutcheon, Tr. 2256-2257 (Star sells Fittings to water and 

wastewater industry wholesale Distributors); CX 2500 (Swalley, Dep. at 14-15) 

(Electrosteel USA tries to sell its Fittings exclusively through Distributors)). 

476.	 All or virtually all of McWane’s sales of Fittings are to Distributors. (Joint Stipulations 

of Fact, JX 0001 ¶ 15; Tatman, Tr. 252; CX 2477 (Jansen, Dep. at 17 (“The only 

customers are distributors. We don’t sell direct or very seldom would.”)). 

477.	 Sigma and Star also sell almost all of their Fittings to Distributors. (Rybacki, Tr. 1094­

1095 (Sigma only sells Fittings through wholesale Distributors. It does not sell to End 

Users); CX 2531 (Rybacki, Dep. at 290) (Sigma does not sell direct to contractors); CX 

2527 (Pais, IHT at 38-39); CX 2534 (Bhutada, IHT at 9) (direct sales from suppliers to 

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478. 

479. 

480. 

481. 

482. 

End Users are virtually non-existent); McCutcheon, Tr. 2256-2257, 2260, 2263 (Star 

generally does not sell directly to End Users, and instead directs them to purchase Star’s 

Fittings through Distributors); (CX 2537 (McCutcheon, IHT (Vol. 1) at 9) (less than 3% 

of Star’s sales are direct to municipalities); Minamyer, Tr. 3134 (Star’s primary Fittings 

customers in 2007 and 2008 were Distributors); CX 2526 (Minamyer, Dep. at 110) (Star 

does not sell directly to contractors)). 

The relationship between Fittings suppliers and Distributors is important to success in 

selling Fittings because Fittings are a commodity product. (CX 2477 (Jansen, Dep. at 18­

19); CX 2480 (Napoli, Dep. at 13-15). 

Distributors are less inclined to do business with a Fittings supplier that sells directly to 

End Users. (CX 2489 (Morrison, IHT at 56) (“I don’t care what product line or 

manufacturer you want to talk about, any time a manufacturer wants to sell direct, that 

doesn’t bode well, it doesn’t sit well with a distributor because we want a hundred 

percent of things to go through distribution, and no distributor is going to be happy or 

understand anything that has to go direct.”); see also CX 0500 at 001, in camera { 

; CX 2503 

(Thees, IHT at 79-80) (describing CX 0500 and noting that McWane direct sale of 

Fittings to an End User was “an infrequent or unusual occurrence” and Ferguson wasn’t 

happy to see it happen); CX 2477 (Jansen, Dep. at 148-149 (explaining that one reason 

not to sell product directly to customers is to avoid competing with Distributors who are 

also selling McWane’s product)). 

4.4.4.2 Numbers and Market Share of Distributors 

McWane, Sigma and Star sell Fittings to over 630 distinct customers (not branches), 

primarily Distributors. Most of these Distributor customers are small, local companies 

with just one or a few distribution yards. Then there are a handful of regional 

waterworks Distributors with multiple branches. Finally, there are two national 

waterworks Distributors. Collectively, all of these customers make up thousands of 

branch locations throughout the United States. (CX 2564 (McWane sales data); CX 2504 

(Thees, Dep. at 14-15) (“HD Supplies are the only national competitor we have. And 

then when you get down below that you’re looking at regional players. Main Line 

Supply, EJ Prescott in the northeast. Dana Kepner out west, ACT in Texas. . . . [L]et me 

throw in Winn Wholesale. Then a slew of independents that are either in a state or one or 

two markets.”); Saha, Tr. 1170 (noting 3,000 to 4, 000 branches nationwide); see also 

infra § 4.4.5.5)). 

HD Supply and Ferguson are the two largest Fittings Distributors, and each has a national 

presence. (McCutcheon, Tr. 2261; Thees, Tr. 3045 (“We have one national competitor in 

HD Supply and a host of regional and local competitors of a much smaller scale”)). 

HD Supply’s Fittings distribution market share is approximately 28% to 30%. 

(McCutcheon, Tr. 2261; Webb, Tr. 2703-2704 (HD Supply estimates that it has an 

approximately 28% to 30% market share in the distribution of waterworks industry 

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products); CX 2513 (Webb, IHT at 43) (same); see also McCutcheon, Tr. 2257; CX 2537 

(McCutcheon, IHT (Vol. 1) at 56) (HD Supply is Star’s largest imported Fittings 

customer)). 

483.	 Ferguson’s Fittings distribution market share is about 15% to 25%. (McCutcheon, Tr. 

2261-2262 (15% to 20%); Thees, Tr. 3045-3046 (Ferguson estimates that it has a 25% 

market share in the overall waterworks distribution market, and a similar share in 

Fittings)). 

484.	 There are a number of regional waterworks Distributors with multiple branches that 

service specific regional areas in the country. For example, EJ Prescott has 27 branches 

in Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, New 

York, Ohio, and Indiana. (CX 2502 (Prescott, Dep. at 9)). Between 2005 and 2011, 

Groeniger & Company has had between 9 and 17 branches, located throughout California 

. (CX 2510 (Groeniger, Dep. at 9-10, 125)). C.I. Thornburg Company has 5 branches in 

West Virginia, Kentucky, and Tennessee. (CX 2490 (Morrison, Dep. at 20)). Illinois 

Meter Company has 5 branches in Illinois and Missouri. (CX 2516 (Sheley, Dep. at 11­

12)). 

485.	 McWane sells to 250-300 Distributors that have approximately 1200 total branches. (CX 

2477 (Jansen, Dep. at 139-140)). 

4.4.4.3 Relationships with End Users 

486.	 End Users reap various benefits from purchasing waterworks products from Distributors 

rather than directly from suppliers. Distributors bundle waterworks products together, 

provide a single point of contact for all products, find alternate supply sources when 

needed, and have local relationships and local specification knowledge. (Thees, Tr. 

3059; CX 2510 (Groeniger, Dep. at 202) (describing the benefits End Users gain by 

purchasing from Distributors rather than directly from suppliers as “certainly service, 

knowledge of the local specifications, local inventory to pull the ones and twosies from, 

credit applications”); CX 2504 (Thees, Dep. at 145-146) (“Well, one is supplying a 

bundle of products, not just a component of a job. We’ve got many more feet on the 

street to blanket the local market than any one manufacturer would have. So we can 

provide bundle. We can provide it timely, and we can provide it in small quantities and 

have a knowledgeable base about the product and the value. The contractors don’t know 

what they need. They rely on us to tell them in lot of cases. Two, we provide credit. A 

lot of times credit that we extend to these guys goes out a lot longer than what a 

manufacturer would be comfortable extending.”) ; CX 2537 (McCutcheon, IHT (Vol. 1) 

at 72-75) (it is a “nationwide norm” for contractors to source all of their waterworks 

needs for a particular job from a single Distributor because of efficiencies; “the bid 

almost never is split” among Distributors); CX 2480 (Napoli, Dep. at 30-31 (citing local 

knowledge of specifications and bids as a benefit of Distributors)). 

487.	 End Users typically source all of their waterworks needs as a one-stop shop for a 

particular project from a single Distributor because doing so allows them to access 

service, payment and delivery from a single source, rather than duplicating administrative 

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effort with various sources. (Webb, Tr. 2723; Thees, Tr., 3060; CX 2489 (Morrison, IHT 

at 31-32) (explaining that contractors source all the waterworks products they need for a 

specific project from a single Distributor because contractors “want to hand you the 

order . . . and turn all the problems over to you. That way they only have one person they 

have to go yell at when something’s not going right. . . . it’s just a matter of service and 

reliability and comfort.”); CX 2501 (Prescott, IHT at 25) (“[H]e only needs to make one 

phone call to scream when – because all that’s got to be missing is one item and he can’t 

move.”); Webb, Tr. 2707 (Distributors are convenient for End Users, because End Users 

can purchase all of their waterworks supplies from a single source, rather than having to 

negotiate with each individual product manufacturer); Sheley, Tr. 3388 (customers 

benefit from buying a waterworks bundle because they get a better overall price, and 

correcting mistakes requires contacting a single company, rather than each supplier); CX 

2537 (McCutcheon, IHT (Vol. 1) at 73-74) (it is the “absolute norm” in the industry that 

all the business of an End User for a project will go to a single Distributor, unless the 

Distributor cannot provide the contractor all products the Distributor needs for the 

project); CX 2544 (Coryn, Dep. at 102); CX 2510 (Groeniger, Dep. at 202); CX 2516 

(Sheley, Dep. at 127-128); CX 2513 (Webb, IHT at 135-136); CX 2502 (Prescott, Dep. at 

81); CX 2480 (Napoli, Dep. at 30) (explaining that Distributors provide end users with a 

“one-stop shop”)). 

488.	 Most waterworks distribution business is conducted on a bid-by-bid basis. Infrequently, 

Distributors will sometimes enter into contracts for up to one year with a municipality. 

(Thees, Tr. 3052). These annual contracts require Distributors to supply specific items at 

an agreed upon price for a customer, primarily municipalities. (CX 2509 (Groeniger, 

IHT at 46)). 

489.	 Most End Users deal primarily with two or three Distributors, rather than fielding bids 

from a broader array of Distributors, in order to receive the best service and price. 

(Webb, Tr. 2725-2726; Sheley, Tr. 3392 (a typical contractor deals with two waterworks 

Distributors)). For example, the vast majority of Ferguson’s customers are repeat 

customers. (Thees, Tr. 3064-3065; Webb, Tr. 2726 (approximately 80% of HD Supply’s 

business was repeat business the last time it generated statistics, in 2005)). 

490.	 Distributors compete with each other on the basis of price, service and relationship with 

the End User. (Sheley, Tr. 3390-3391 (End Users select waterworks Distributors based 

on service levels, product availability, delivery levels, fill rates, price, and relationships 

with sales personnel); Thees, Tr., 3062 (testifying that End Users select the lowest cost 

bid, factoring in price for each individual product, as well as delivery efficiency and 

accuracy); CX 2502 (Prescott, Dep. at 12-13) (“price gets involved, but if it was just price 

a small company like this we would have a hard time surviving”); CX 2489 (Morrison, 

IHT at 37) (along with price, “there’s no doubt service is a factor and your personal 

relationship”)). 

491.	 End Users demand a high level of service. Therefore, for example, Ferguson’s value 

proposition to its customers includes a high level of service, including timely delivery, 

trouble-shooting during the job, and competitive pricing. (Thees, Tr. 3061; Webb, Tr. 

2723-2726 (Distributor’s ability to “provide on time deliveries, 95% order fill rates, zero 

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errors” is the most important factor to End User Fittings customers in selecting a 

Distributor, followed by price and relationship); CX 2502 (Prescott, Dep. at 12) (“our 

whole business is service”)). 

4.4.4.4 Local Nature of Distribution Business 

492.	 Distributors have multiple branches in order to service specific local geographic areas. 

(Sheley, Tr. 3382; Webb, Tr. 2700; CX 2489 (Morrison, IHT at 9) (“Well, most of what 

you sell you have to deliver, so you need to be within two or three hours of your 

customer just to make the delivery and get back in the same day. So, from a service 

standpoint, you need to have a location in the market area that you’re trying to service.”); 

CX 2502 (Prescott, Dep. at 9) (“Each location has its region . . . so that they can serve the 

area because of the service that’s required today in the industry.”); CX 2480 (Napoli, 

Dep. at 13) (explaining that Distributors sell Fittings to local markets of 20 minutes to an 

hour in driving distance)). 

493.	 A Distributor’s service area is generally 50 to 200 miles from its branch location, 

depending on population, geography and driving patterns. Branch service areas tend to 

be smaller in more densely populated areas. (CX 2502 (Prescott, Dep. at 58); Webb, Tr. 

2701-2702 (an HD Supply branch will service a 50- to 70-mile radius in a state like 

Florida, and a 150- to 200-mile radius in a Midwestern state); Thees, Tr. 3044 (Ferguson 

services areas extend from less than 60 miles to over 200 miles, depending on region); 

Sheley, Tr. 3382 (branch service areas no larger than 90 miles); CX 2501 (Prescott, IHT 

at 9-10) (“we push between 75 and a hundred and that . . . changes when we get to the 

midwest . . . that kind of service you’ve got to be less than 200 miles to give the kind of 

service that needs to be done.”); CX 2489 (Morrison, IHT at 9) (describing the radius of 

effective service from a branch to be 150 to 200 miles); CX 2509 (Groeniger, IHT at 28­

31) (describing the effective radius for it branches to be 50 miles to 300 miles)). 

494.	 Distributors primarily service waterworks projects in their own service area. (CX 2489 

(Morrison, IHT at 10) (describing the problems servicing projects outside a service area 

to be “one, you don’t know the customer base because you don’t know any of the [] 

contractors, and number two would just be distance to deliver to a job site.”)). 

Distributors, however, will occasionally service loyal customers who are doing a project 

in an adjacent market. (CX 2502 (Prescott, Dep. at 59); Sheley, Tr. 3383 (over the last 

five years, a branch has serviced a project outside of its service area about two or three 

times per year, when the customer has a project outside the service area)). 

495.	 Generally speaking, it is difficult for an out-of-area Distributor to compete with the 

logistics and service of a local branch, local sales people, and locally stocked product. 

(Webb, Tr. 2700-2701 (HD Supply is unable to compete effectively in areas such as 

Vermont, where it has no local branch)). Delivery is also more expensive for out-of-area 

Distributors. Sheley, Tr. 3382 (Illinois Meter has multiple branches to service its 

customers because delivery is less expensive with local delivery)). 

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4.4.4.5	 Distributors Use Multiple Fittings Suppliers, and Benefit from 

Competition Among Fittings Suppliers 

496.	 Distributors consider price, service, relationship, financial stability, warranty, and product 

quality when selecting a Fittings supplier. (Thees, Tr. 3082-3084 (Ferguson deals with 

multiple Fittings suppliers because its relationships with suppliers, and suppliers’ sales 

and support, vary in different areas of the country); CX 2489 (Morrison, IHT at 61)). 

497.	 Fittings Distributors generally purchase Fittings from at least three suppliers. 

(McCutcheon, Tr. 2258-2259; Webb, Tr. 2746 (HD Supply purchases imported Fittings 

from McWane, Sigma, and Star); Thees, Tr. 3082 (Ferguson purchases imported Fittings 

from McWane, Sigma, and Star); Sheley, Tr. 3398 (TDG has rebate programs for Fittings 

with SIP, McWane, Star, and Sigma); Sheley, Tr. 3406 (Illinois Meter’s purchases of 

imported Fittings are split about evenly between McWane and Star)). 

498.	 Distributors generally can obtain better pricing on Fittings when they have the option of 

purchasing Fittings from multiple suppliers. (Sheley, Tr. 3444-3445 (“Q. In 2008, Mr. 

Sheley, were you playing suppliers off one another to try and get a better price? A. 

Yes.”); CX 2489 (Morrison, IHT at 61-63 (noting that Distributors also have greater 

access to a full line of imported Fittings buying from multiple Fittings suppliers); CX 

2513 (Webb, IHT at 172) (“Q. What about price? Are you able to leverage better price 

because you have three suppliers rather than two, more options? A. The more options is – 

is definitely there.”)). 

499.	 For Domestic Fittings, Distributors can only purchase Fittings from two manufacturers, 

Star and McWane, since they are the only Domestic Fittings suppliers. (McCutcheon, Tr. 

2259; Webb, Tr. 2748-2749 (HD Supply purchases Domestic Fittings primarily from 

McWane, and only from Sigma when Sigma was selling McWane Fittings); Thees, Tr. 

3118-3119, 3084-3085 (Ferguson currently purchases approximately 95% of its Domestic 

Fittings from McWane, and a “little bit” from Star, and only purchased McWanemanufactured Domestic Fittings from Sigma when Sigma was selling McWane Fittings); 

Sheley, Tr. 3406 (Illinois Meter purchases Domestic Fittings from McWane only)). 

500.	 A Distributor generally will purchase Fittings from its Distributor competitors only as a 

last resort when it is required to service a customer. Purchasing from competitors is more 

expensive and not routine. (Webb, Tr. 2726-2727; Thees, Tr. 3065 (Ferguson 

occasionally purchases Fittings from its competitors to complete a specific order, 

Ferguson prefers not to purchase Fittings from its competitors because it pays a premium 

on those Fittings compared to what it would pay a manufacturer)). 

4.4.4.6 Fittings Suppliers Use Multiple Distributors 

501.	 Fittings suppliers do not generally work with a single Distributor, but instead sell their 

Fittings to multiple Distributors in a given territory. (Thees, Tr. 3047-3049). 

502.	 Greater access to Distributor branches means more potential sales for Fittings suppliers. 

(Saha, Tr. 1173). 

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503.	 McWane sells Fittings through multiple Distributors in the same local area because it 

increases the likelihood of McWane making the sale. (CX 2477 (Jansen, Dep. at 141­

142) (explaining that Distributors’ sales force extends the effectiveness of McWane’s 

own sales force, and that dealing with multiple Distributors increases McWane’s chances 

of dealing with the Distributor that has a special relationship with the winning 

contractor)). 

504.	 Star sells to as many Distributors as it can in a given region, since increasing the number 

of Distributors who carry Star’s products increases the overall likelihood that Star will 

ultimately make a sale. (CX 2537 (McCutcheon, IHT (Vol. 1) at 59, 63) (“It’s just 

math. . . . [F]ewer Distributors . . . cuts down on our ability to get more products - more 

projects.”); McCutcheon, Tr. 2257 (selling to multiple Distributors in a particular 

geographic area improves Star’s chances of selling Fittings)). 

505.	 Selling to only one Distributor in a market does not allow a Fittings supplier to reach all 

End Users in that market. (Saha, Tr. 1165). Selling to more Distributors enables a 

supplier to reach more End Users. (Saha, Tr. 1166). 

4.4.4.7 Distributor Pricing 

506.	 Some Distributors may prefer higher market prices for Fittings because changes in 

Fittings prices can affect the value of their inventory. (Rybacki, Tr. 1110-1111) (“[I]f the 

marketplace becomes overaggressive and the prices fall, the distributor, the wholesaler, 

inventory gets devalued, and that’s not a help to his or her business and certainly not a 

help to ours.”)). 

507.	 A Distributor generally marks up a product by at least 20%, but suppliers like Star 

estimate that it would cost significantly more than that for a supplier to assume the 

responsibilities of a Distributor. (CX 2534 (Bhutada, IHT at 22)). 

508.	 Distributors pass along increases and reductions in wholesale prices of Fittings to End 

Users. (CX 2489 (Morrison, IHT at 98-99) (“[I]f prices go up you pass that along and if 

they go down the market demands that you pass that along.”); CX 2513 (Webb, IHT at 

144-145) (explaining that when Fitting prices are high and rising HD Supply “would pass 

them on” to their customers and conversely when Fitting prices are falling HD Supply 

would pass them on to their customers as well because “competitive forces dictate”)). 

509.	 Distributors make higher profit margins on sales of valves, hydrants and Fittings, than on 

sales of pipe. (Sheley, Tr. 3387; CX 2503 (Thees, IHT at 22) (“Q. Your margins on 

fittings, how do they compare to your margins on ductile iron pipe for example? A. 

They’re higher. . . . Q. Your margins on valves and hydrants are pretty close to your 

margins on the ductile iron pipe fittings? A. Yes. Q. What do you attribute the difference 

in your margin on fittings to your margin on ductile iron pipe? A. Well, pipe is a bigger 

portion of the job. Typically when you look at a job that has ductile iron pipe, that may 

make up 60 to 70 percent of all the products being sold for the waterworks portion of that 

construction project; so because it’s the product driving the job, it’s a lower margin.”); 

CX 2489 (Morrison, IHT at 32) (“typically the pipe is a lot of dollars at low margins”)). 

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510. 

511. 

512. 

513. 

514.
 

4.4.5	 Distributors Provide Important Benefits to Fittings Suppliers and 

End Users 

In addition to providing important benefits to End Users, (see supra ¶¶ 486-491), 

Distributors provide important benefits to Fittings suppliers and End Users. (CX 2537 

(McCutcheon, IHT (Vol. 1) at 41-46) (listing efficiencies Distributors provide to 

suppliers and describing the cost to replicate these efficiencies as “astronomical”); CX 

2534 (Bhutada, IHT at 9-15), in camera { 

. 

McWane recognizes that Distributors provide McWane with the following benefits: 

Distributors offer better sales coverage than McWane would have with its sales alone; 

Distributors have more local influence and more local knowledge of projects in their 

market area; Distributors carry local inventory; Distributors offer one-stop shopping for 

all needed waterworks products for the end user; Distributors help McWane’s products be 

included in specifications; and Distributors streamline McWane’s account receivables by 

taking the risk of non-payment from contractors. (CX 2477 (Jansen, Dep. at 139-141, 

144-145); CX 2480 (Napoli, Dep. at 29-30)). 

McWane views Distributors as being “critical to [its] success.” (CX 2477 (Jansen, Dep. at 

150) (explaining reasoning because of the benefits provided by Distributors that are listed 

above); CX 0169 at 003 (January 2010 McWane Sales Managers Conference Call 

Agenda reflecting consensus that “distribution is critical to our success.”)). 

4.4.5.1 Distributors Bundle Goods and Provide One-Stop Shopping 

Because Distributors provide End Users with one-stop shopping for the full spectrum of 

waterworks products required for a particular project (i.e., pipe, valves, Fittings, 

restraints, castings, etc.) (see supra ¶¶ 486-487), Fittings suppliers can compete for sales 

to Distributors without entering all of the adjacent waterworks product markets. 

(McCutcheon, Tr. 2260-2261; Webb, Tr. 2708-2709 (When HD Supply wins a bid, the 

contract typically covers a variety of products, including Fittings); Webb, Tr. 2729 (HD 

Supply provides one-stop shopping to its customers); Thees, Tr. 3051 (Ferguson sells all 

of the various waterworks products to its customers in bundles); Sheley, Tr. 3386 (Illinois 

Meter typically sells Fittings as a part of a bundle including pipes, valves, fire hydrants 

and Fittings); CX 2509 (Groeniger, IHT at 39) (pipe, valves, fire hydrants, Fittings and 

service material make up the entire bundle of products that Distributors provide to 

contractors to service a waterworks project); CX 2480 (Napoli, Dep. at 30) (explaining 

that Distributors provide end users with a “one-stop” shop)). 

4.4.5.2 Distributors Carry Inventory 

Suppliers also benefit from Distributors carrying Fittings inventory because this frees up 

the suppliers’ working capital; and it provides much faster delivery service from the 

Distributors’ local branches to End Users than a Fittings supplier could achieve by selling 

directly to End Users. (Webb, Tr. 2728-2730 (HD Supply keeps local inventory of 

Fittings and other waterworks products such as pipe, valves, hydrants, and service 

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material); Thees, Tr. 3059-3060 (Ferguson positions its product within a trading area to 

have ready access to deliver it to End Users); CX 2534 (Bhutada, IHT at 10, 19-20) 

(Distributors carry local inventory of Fittings and other products that are immediately 

available for delivery to contractors at job sites); CX 2510 (Groeniger, Dep. at 202); CX 

2516 (Sheley, Dep. at 127-128); CX 2504 (Thees, Dep. at 145-146); CX 2489 (Morrison, 

IHT at 29) (“[T]he customer expects you to have [product] available in a reasonable 

amount of time . . . tomorrow . . . a couple days from now. They’re not looking for it in a 

week or ten days.”); CX 2494 (R. Fairbanks, Dep. at 95-96) (“Distributors are stocking 

distributors, and so there’s just a wide variety of fittings that can be on a project. And so 

the advantage is, is that, one is it could be in stock, and two is it can be almost immediate 

deliveries due to stock. And also deliveries, because there might be other products going 

out on the job site.”); CX 2502 (Prescott, Dep. at 11) (explaining stocking inventory 

provides a “great advantage because . . . the service that’s required today” ); CX 2502 

(Prescott, Dep. at 80); Sheley, Tr. 3398 (“A manufacturer can’t reasonably service a 

small municipality or a small contractor. There has to be local inventory, local delivery, 

a local contact person, if you will. It would be . . . uneconomical for every party 

involved . . . .”); CX 2477 (Jansen, Dep. at 145) (explaining that Distributors house local 

inventory for McWane)). 

515.	 Providing inventory within a close proximity to the waterworks projects that the 

Distributor is servicing can help prevent expensive work delays if a Fitting is missing or 

malfunctioning. Distributors therefore typically provide product and services 24 hours a 

day, seven days a week. (CX 2502 (Prescott, Dep. at 79) (“no matter how big or how 

small you are, when you got an emergency and the water is running down the street and 

you got to fix it.”); CX 2489 (Morrison, IHT at 55) (explaining that Distributors provide 

service capabilities to contractors); CX 2509 (Groeniger, IHT at 27-28) (“[N]o job goes 

in the way it was laid out. There is always an obstacle in the way or going around the 

tree or they can’t get the easements so they had to move the pipeline over to here but that 

usually happens after the job is in progress. So they are stopping and starting and these 

guys, the crews are very very expensive. The machinery they have out there digging 

these trenches, there’s big equipment and, you know, it’s costing them thousands and 

thousands of dollars an hour and so they have to have the material and if they – if it was, 

you know, in Southern California where they’re working and they call up and say we’re 

not going to be able to get your material for a day and-a-half or two days, you know, they 

can just walk in and pick it you off much better. So, you have that ability being local to 

take care of their needs and they will always have needs and if we do that efficiently, 

that’s big because in most cases, the people doing the work or the contractor there, 

foremen, are being paid piece work for their profit there that they’re making on the job. 

They designed it to put in 400 feet a day and, if he is doing 600 feet a day, he is making a 

bonus. So, having somebody that keeps that machinery going is very very important and 

so you really have to have something that’s relatively close by.”)). 

516.	 Distributors maintain an inventory and aggregate small orders and shipments from 

contractors, which typically purchase small numbers of Fittings for individual projects. 

(CX 2502 (Prescott, Dep. at 81) (“manufacturers ship in quantity and the Distributors 

ship in pieces”); CX 2489 (Morrison, IHT at 55) (explaining that Distributors have “small 

trucks”); Sheley, Tr. 3387 (Illinois Meter benefits from bundling of waterworks products 

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because it can make a single direct shipment of all waterworks products for a given 

project at once); CX 2534 (Bhutada, IHT at 19)). 

517.	 Distributors absorb the cost of freight for deliveries from the Distributor’s warehouse to 

the contractor’s job site. (CX 2534 (Bhutada, IHT at 10)). 

4.4.5.3 Distributors Provide Credit to End Users 

518.	 Contractors often purchase on credit, and Distributors carry the credit risk of dealing with 

thousands of End Users. Suppliers avoid these credit costs by dealing through 

Distributors. (CX 2534 (Bhutada, IHT at 12-13); Webb, Tr. 2729 (HD Supply provides 

assumption of credit risk); (CX 2502 (Prescott, Dep. at 81) (“I think that’s [assuming 

credit risk] one of the biggest things, and I have always laughed about that because then 

the vendor don’t [sic] have to have a credit department . . .”); McCutcheon, Tr. 2260 

(Distributors also provide suppliers with a credit cushion, by paying themselves, rather 

than requiring the contractor to do so); CX 2537 (McCutcheon, IHT (Vol. 1) at 41-42) 

(same); CX 0169 at 003 (January 2010 McWane Sales Managers Conference Call 

minutes noting benefits of distribution to include Distributors “carry[ing] the paper and 

inventory and once in a great while do spec work”); CX 2521 (Agarwal, IHT at 81-82), in 

camera ({ 

)). 

4.4.5.4 Distributors Expand Supplier Sales and Service Capabilities 

519.	 Distributors employ sales personnel dedicated to identifying business opportunities and 

servicing End Users, saving suppliers from having to employ their own large, nationwide 

sales forces. (CX 2480 (Napoli, Dep. at 31) (McWane would “have to have a daily, 

hourly presence in - in each area in order to - to absorb [the] role” of the Distributor in 

monitoring potential bid opportunities in the local markets); McCutcheon, Tr. 2260-2261 

(Distributors magnify the reach of a supplier’s sales force); Webb, Tr. 2728 (HD Supply 

provides a sales force in excess of 400 people); CX 2534 (Bhutada, IHT at 12-13, 19-20), 

in camera { 

} CX 

2544 (Coryn, Dep. at 103) (identifying the sales force as an efficiency Distributors 

provide); CX 2546 (Gibbs, Dep. at 65-66) (describing WinWater’s sales force as benefit 

it provides to the supply chain); CX 2510 (Groeniger, Dep. at 202) (explaining that 

“normally speaking” Distributors have larger sales forces than suppliers); CX 2502 

(Prescott, Dep. at 82) ; CX 2489 (Morrison, IHT at 11) (describing C.I. Thornburg sales 

force to include 20 outside salespeople and 18 inside salespeople); CX 2501 (Prescott, 

IHT at 10-11) (explaining that E.J. Prescott’s outside sales force of 60 individuals 

“[s]ervice the customer with what he is looking for”); CX 2501 (Prescott, IHT at 17) 

(“national manufacturing in this country would need 5,000 salesman at a minimum and 

then they would always be on the wrong corner.”); CX 2502 (Prescott, Dep. at 78); CX 

2502 (Prescott, Dep. at 46) (describing E.J. Prescott’s sales force as including 60 outside 

sales individuals and 75 inside sales individuals); CX 2516 (Sheley, Dep. at 127-128) 

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(including Distributors’ sales forces as one of many efficiencies Distributors provide to 

the market); CX 2504 (Thees, Dep. at 145-146) (describing the “many more feet on the 

street” as an efficiency)). 

520.	 Distributors support End Users through technical assistance and training regarding 

waterworks jobs, and by packaging up the discrete waterworks components and making 

sure that all pieces that the customer needs have the correct characteristics and arrive on 

time. In addition, End Users pay Distributors directly, rather than paying individual 

suppliers, and provide a higher level of service than a supplier would, including smallvolume deliveries and 24-hour service. (Sheley, Tr. 3399-3401). 

521.	 Distributors handle returns of products from the contractor, { 

} (CX 2534 (Bhutada, IHT at 12, 20) 

in camera; Webb, Tr. 2729-2730 (HD Supply provides processing of returns)). 

522.	 Distributors provide a single point of contact for invoicing and collection, saving 

suppliers the transaction costs of managing relationships with multiple End Users, and 

lessening suppliers’ exposure to End User credit risk. (CX 2544 (Coryn, Dep. at 102­

103) (explaining that Distributors “daily” assume a credit risk in dealing with the End 

Users); CX 2510 (Groeniger, Dep. at 202) (“Q. Do distributors handle the billing and 

collections from their customers? A. Yes, that’s the credit scenario. Some people will 

allow a looser credit format with their customer than a manufacturer would. And that’s 

probably one of the main underlying reasons why manufacturers would rather go through 

distribution because they can guarantee their money quicker than if they were selling to 

the contractor directly.”); CX 2516 (Sheley, Dep. at 127-128) (including the following in 

a summary of efficiencies Distributors provide: “assume credit risk, have robust billing, 

invoice and collection system in place”); CX 2504 (Thees, Dep. at 145-146) (“[W]e 

provide credit. A lot of times credit that we extend to these guys goes out a lot longer 

than what a manufacturer would be comfortable extending.”); CX 2494 (R. Fairbanks, 

Dep. at 96) (“[I]f you’re a distributor it sort of means you’re local and you know the 

people in your marketplace and you know how to manage credit. It’s very difficult to 

manage credit from long distance, sometimes, as to what’s going on in the local 

marketplace. So distributors carry the credit on – with the contractors on these 

projects.”); CX 2502 (Prescott, Dep. at 81) (agreeing that Distributors “bill and invoice 

and collect” from End Users)). 

523.	 Distributors have local knowledge of what is required in each specific market they are 

servicing. (CX 2489 (Morrison, IHT at 55); CX 2480 (Napoli, Dep. at 30 (describing 

how Distributors can use knowledge of local municipalities to guide contractors)). 

524.	 Fittings suppliers are not able to service End Users. (CX 2489 (Morrison, IHT at 55) 

(“[Suppliers] have no way to service the customer or the job because they’re so far away. 

I mean, I just can’t imagine a scenario where they could sell a project direct to the 

contractor because they don’t have the service capabilities to do that.”)). 

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4.4.5.5 Benefits of National Distributors 

525.	 Suppliers obtain benefits from dealing through major national Distributors like HD 

Supply and Ferguson, due to the large number of branch locations operated by these 

Distributors. They purchase larger volumes, which is inherently more efficient than 

individual sales to smaller Distributors. (CX 2534 (Bhutada, IHT at 27); Webb, Tr. 

2728-2729 (HD Supply’s branch footprint is a benefit to Fittings suppliers)). 

526.	 Advantages of a Distributor having multiple branches include local market presence, 

expedient delivery, quick access to a broad array of products, and the ability to bundle 

different product types together. (Thees, Tr. 3042-3043). 

527.	 Sales to larger Distributors like HD Supply and Ferguson also result in “commercial 

validation,” i.e., recognition by other, smaller Distributors that the products purchased by 

larger Distributors are technically sound and commercially viable. (CX 2534 (Bhutada, 

IHT at 27)). 

528.	 Star finds selling to HD Supply and Ferguson advantageous, because they lend 

credibility to Star’s Fittings. For example, Winwater, another Distributor, indicated to 

Star that it chose Star Fittings because HD Supply and Ferguson were also purchasing 

Star’s Fittings. (McCutcheon, Tr. 2262-2263; CX 2537 (McCutcheon, IHT (Vol. 1) at 

51)). 

529.	 In any given region, there are likely to be fringe Distributors that may carry some but not 

all waterworks products or brands, or have less well developed sales and distribution 

networks and End User relationships. These small fringe players do not provide as much 

value to suppliers as more established Distributors. (CX 2510 (Groeniger, Dep. at 153) 

(“Between all three of us [Groeniger, HD Supply and Ferguson] we were the vast 

majority of the business but there were probably two or three independents that were at 

the outer fringes of their service capability, but they would enter into it also.”); CX 2504 

(Thees, Dep. at 14-15) (describing fringe Distributors as “a slew of independents that are 

either in a state or one or two markets.”); RX-637 (Jansen, Dep. at 150-151) (explaining 

that McWane does not sell to additional Distributors in markets where “we have what we 

feel is enough existing coverage”)). 

530.	 Suppliers with access to only smaller Distributors lack market access, and are inhibited in 

their ability to grow their business. (Saha, Tr. 1171-1172; CX 2500 (Swalley, Dep. at 

263) (to really break into the U.S. Fittings market, Electrosteel USA would need to be 

able to sell into the 90% of the market that is the big Distributors); CX 2500 (Swalley, 

Dep. at 131-132) (Electrosteel USA does not expect that its Fittings business will 

continue to grow unless and until one of the major four Distributors in the Southeast 

agrees to sell its Fittings products)). 

4.4.6	 Barriers to Distributor Entry 

531.	 There are high barriers to entry into the waterworks distribution business. (Infra ¶¶ 532-

542). 

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4.4.6.1 Start-Up Costs 

532.	 Firms may enter new markets as Distributors by either building a new branch from 

scratch, referred to as “greenfielding,” or by acquisition of an existing branch. (Webb, Tr. 

2704). Acquiring or opening a new branch involves costs associated with inventory, 

personnel, and licensing. (Webb, Tr. 2705). 

4.4.6.2 Access to Full Range of Waterworks Products 

533.	 In order to service customers, Distributors need access to a full range of product lines, 

including pipe, Fittings, valves, hydrants, meters, and brass. (CX 2501 (Prescott, IHT at 

14)). 

534.	 It is not easy for a Distributor looking to establish a new branch to establish all the 

required products lines to service local requirements. (CX 2489 (Morrison, IHT at 16) 

(“That’s probably the biggest obstacle is who are you going to buy from.”); CX 2501 

(Prescott, IHT at 15) (explaining that Distributors “work for a long time to get the best 

lines you can get and then the loyalty between both ways is a big factor”)). 

535.	 Unlike Fittings suppliers, suppliers of hydrants, valves and meters often enter into 

exclusive relationships with Distributors in certain service areas. (CX 2489 (Morrison, 

IHT at 17 (“Valve and hydrant manufacturers tend to just have a single distributor in an 

area.”); CX 2502 (Prescott, Dep. at 75) (a new entrant’s “biggest problem is the lines. . . . 

most of the lines are tied up by [other Distributors]”); CX 2501 (Prescott, IHT at 16)). 

4.4.6.3 Establishing Local Personnel and Relationships 

536.	 A major challenge to entering waterworks distribution is the education of personnel on 

local products and specifications, local market conditions, and the products they are 

selling. (CX 2502 (Prescott, Dep. at 72)). 

537.	 With respect to sales personnel, local hires are better due to their customer relationships 

and knowledge of local specifications and geography. (Webb, Tr. 2705-2706; CX 2489 

(Morrison, IHT at 19) (Distributors need to “have a personal relationship with the people 

[to whom they are] trying to sell”)). 

538.	 It can take years for a new Distributor to develop the right relationships with local 

contractors to get any sales. (CX 2489 (Morrison, IHT at 20) (“[I]f you send someone 

that’s not familiar with the contractors . . . you could be five years before you get your 

first order because they don’t know anybody and they’re not known and it goes both 

ways.”)). 

539.	 Greenfield entry by a Distributor into a new locality without people that have established 

local relationships is much slower than entry through acquisition because waterworks is a 

local, relationship business. (Thees, Tr. 3050 (“[W]e view that as something that will 

take a significant amount of time in order to develop, thus turn into sales and turn into 

profits.”)). 

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4.4.6.4	 Plumbing Distributors Cannot Easily Enter Waterworks 

Distribution 

540.	 Waterworks Distributors typically do not regard plumbing distributors as competitors. 

(CX 2489 (Morrison, IHT at 14-15)). 

541.	 Plumbing distributors do not make good waterworks Distributors. (Sheley, Tr. 3384­

3385) (explaining that plumbing distributors are “used to selling copper fittings at a half a 

cent profit or less, and they sell toilets and showers, and we don’t sell any of that,” that 

“there’s a lot of difference between a fire hydrant and a toilet,” and that plumbing 

distributors have a “real hard time making money in the waterworks business when they 

do it out of a plumbing supply house” because plumbers “don’t understand the service 

levels” or “what it takes to be profitable” in waterworks)). 

542.	 Plumbing distributors lack the industry knowledge, expertise, and relationships to 

effectively serve waterworks contractors. (CX 2489 (Morrison, IHT at 15-16) 

(explaining that plumbing distributors do not handle the same materials as waterworks 

Distributors and they lack the product knowledge needed for waterworks products); CX 

2509 (Groeniger, IHT at 14 (waterworks Distributors often deal with unique sets of 

specifications for each specific project, whereas plumbing distributors typically deal with 

one set of specifications, “what they call the universal plumbing code.” If plumbing 

distributors have the materials that comply with that code they can use the material 

anywhere they want); CX 2509 (Groeniger, IHT at 18) (plumbing distributors do not 

have relationships with waterworks contractors)). 

4.5	 How Prices Are Set 

4.5.1	 Published List Prices and Price Multipliers 

543.	 Published Fittings prices have two components: a nationwide list (or catalog) price, and a 

regional “multiplier” that reduces the list price. The net published price for a given 

Fittings item in a given state is the list price multiplied by the then-applicable multiplier 

for that state. For example, if a Fitting has a $1,000 list price, and the Texas multiplier is 

.28, the published price for that individual Fitting in Texas will be $1,000 x .28, or $280. 

(Tatman, Tr. 277; Rybacki, Tr. 1096-1097; CX 2535 (Bhutada, Dep. at 102); Webb, Tr. 

2770-2771 (Fittings suppliers communicate prices to Distributors like HD Supply 

through published list prices and multipliers)). 

544.	 Multipliers vary from state to state based upon the prevailing competitive environment in 

each state. (Tatman, Tr. 277; CX 2526 (Minamyer, Dep. at 102) (Star generally had a 

multiplier for each state but in some instances, for states like Texas, there were two or 

more trading areas to which Star would assign different published multipliers)). 

545.	 This list-price-times-multiplier price is referred to as a Fitting’s “published price” or 

“standard price.” (Tatman, Tr. 258-259 (list price and published multiplier for a 

geographic region establish “published pricing”); Rybacki, Tr. 1097, 1103 (“standard 

price”); Rybacki, Tr. 1126 (referring to “published multipliers”); CX 1018 at 001 (Pais 

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referring to “publishing” of multipliers by sending to customers); Answer ¶ 27(e) 

(McWane periodically “publishes” price lists and state-by-state multipliers)). 

546.	 The published price is generally the highest price at which a Fitting can be sold. 

(Tatman, Tr. 258 (“[Y]our published list price and your published multipliers, what that 

establishes is the absolute highest price you could ever sell something for.”)). 

547.	 The primary factor driving McWane’s pricing decisions is the competitive price level in 

the marketplace. A secondary factor is that the pricing level must be above a minimum 

margin that allows McWane to make money. (Tatman, Tr. 289-290). 

548.	 McWane typically announces increases in published prices four weeks before the 

increase goes into effect. (Tatman, Tr. 325). Customers normally want four weeks’ 

notice, three weeks is “on the verge” of acceptable notice, and two weeks is too little 

notice. (Tatman, Tr. 519). 

4.5.2	 Project Pricing 

549.	 Fittings suppliers compete with one another by offering Distributors discounts off of 

published prices called Project Pricing. Day-to-day competition among Fittings suppliers 

occurs principally through Project Pricing. Project Pricing tends to create Fittings price 

instability and deterioration, while reductions in Project Pricing can lead to higher and 

more stable prices. (Infra ¶¶ 550-561). 

550.	 At times, Fittings suppliers will provide Distributors with discounts from their published 

price on Fittings sales for individual waterworks projects, a practice known as “Project 

Pricing.” Minamyer, Tr. 3144 (“project price” and “special price” are used 

interchangeably); Tatman, Tr. 325-326; Rybacki, Tr. 1101 (describing job pricing as 

“anything that deviates from the standard list price and discount.”); McCutcheon, Tr. 

2271-2272 (“special pricing” means a discount off of the published multiplier); Thees, 

Tr. 3098 (Project Pricing is pricing that is different than the market price, and can be 

affected by the size and scope of a given project); CX 2535 (Bhutada, Dep. at 105-106 

(Project Pricing generally reflects a lower multiplier than the published price); CX 2538 

(McCutcheon, IHT (Vol. 2) at 369) (Star sometimes offers a special project price, which 

is a multiplier lower than the published multiplier); CX 2522 (Agarwal, Dep. at 45-46), in 

camera ({ })). 

551.	 Project Pricing, which may be negotiated for an entire project or job, or on a one-time 

basis for a single order, generally takes the form of a price multiplier that is lower than 

the published multiplier. (CX 2535 (Bhutada, Dep. at 105-106)). 

552.	 Project Pricing does not normally result in Fittings being sold at prices above the 

published prices (list price times published multiplier). (McCutcheon, Tr. 2270 

(published price is generally the highest price that a Distributor in a given geographic 

area will pay for Fittings); Rybacki, Tr. 1105 (“Q. If you had a preference, would you 

prefer to sell at a job price or at standard pricing? A. Standard pricing every day.”). 

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553. 

554. 

555. 

556. 

Suppliers offer Project Pricing in order to compete, and gain sales volume from 

competitors. (Tatman, Tr. 326). 

A significant portion of the price competition among suppliers for Fittings business 

occurs through Project Pricing, as Distributor purchasing decisions typically do not take 

rebates into account. (Minamyer, Tr. 3143-3144 (price multiplier was the chief aspect of 

pricing that customers negotiated with Star, since other aspects of pricing such as rebates 

and payment terms were typically not a job-by-job negotiation); RX-644 (Tatman, Dep. 

at 27) (describing Project Pricing as a “reaction to the competitive environment”))Webb, 

Tr. 2774 (“We look at the two differently. I mean, pricing in the field is based on the 

competitive nature of the project, and rebates are negotiated on an annual basis.”); 

Tatman, Tr. 1020-1022, in camera { 

. 

Project Pricing lowers the prevailing transactional price in a given area, and can lead to 

price “instability.” This happens when one supplier offers a Project Price and the other 

suppliers seek to match or beat it; as other Distributors in the region learn of the new 

price, they demand the same discount in order to be competitive on bids for the same job. 

(Rybacki, Tr. 1107-1108 (once customers get a taste of a lower number from Project 

Pricing, they want the lower number); CX 2484 (Tatman, Dep. at 27) (job pricing is a 

response to customer requests for lower prices on the basis of competitor prices); CX 

2480 (Napoli, Dep. at 84-85) (Distributor awareness of suppliers’ prices to other 

Distributors drive down supplier prices); CX 0525 (Michael Berry of Star instructs 

territory managers, “We have to be flexible enough to play this game but not so soft that 

our customers think that they can get a price at any time.”)). 

Project Pricing can cause prices to “deteriorate” market-wide because a supplier’s low 

prices are usually offered to more than one Distributor. As McWane’s Pricing 

Coordinator, Vince Napoli, explained: 

They’ll go into one distributor and say I’m - we’re selling our 

products to your competition down the street at a .42. Would you 

like to buy the -- at the .42 to keep up with your competition? 

Well, sure they’re going to say yes. Then they go across the street 

to the other guy and said I was just in, made a sale to your 

competition down the street at a .42. You’re buying at a .44. 

Don’t you want to keep up with him? So that’s a method to -- and 

-- and what happens is their buy price goes down, but their sell 

price goes down with it. If they were the only ones to have a lower 

price, they’d be in a good position, but that’s never what happens. 

(CX 2480 (Napoli, Dep. at 83-85) (describing how Project Pricing causes prices to 

deteriorate market wide); CX 2191 (Napoli email characterizing Sigma, Star and HD 

Supply as “Idiots” for engaging in Project Pricing that reduced prices by 12.5%). 

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557.	 Mr. Tatman defines pricing “instability” as occurring when Project Pricing in a region 

results in average invoice prices 10% or more below published pricing (Tatman, Tr. 284, 

332-333). 

558.	 Project Pricing can bring down the market price because if a supplier offers a special 

price to one Distributor, then the supplier needs to be prepared to offer it to all 

Distributors bidding on that project. Those Distributors then expect that lower price in 

later projects, and the spiral of declining prices can lead to zero gross margin. (CX 2480 

(Napoli, Dep. at 46-47)). 

559.	 Reducing Project Pricing can lead to stable, higher prices. Utah, which had a nondomestic published multiplier of .48 in 2008, which is almost double that of its 

neighboring states, provides an example of the price-increasing effect of a reduction in 

Project Pricing. (CX 1677 at 003; RX-613 at 001). As Mr. Jansen explained, Utah “is a 

unique situation where distributors as a whole want a stable market, and that’s . . . what 

they communicate to us. They’d like to have stable pricing and not a lot of job pricing 

because they keep inventories, and so yes, so they’d rather keep the market stable and 

keep the market up.” (CX 2477 (Jansen, Dep. at 220); RX 613 at 001)). 

560.	 McWane admits that it would prefer not to engage in Project Pricing. (CX 2477 (Jansen, 

Dep. 248-249)). 

561.	 Suppliers view Project Pricing as a drag on their profitability. (Rybacki, Tr. 1105 (“Q. 

And if you could find a way to put an end to job pricing in the industry, would you? A. 

Yes.”); Rybacki, Tr. 1107-1108 (“Q. Is job pricing good for Sigma’s long-term 

health? A. No. Q. Does job pricing create confusion with your customers or competitors? 

A. It does.”); CX 2531 (Rybacki, Dep. at 221) (“Q. And if you could find a way to have 

the entire industry rein in project pricing, that would be your preference, wouldn’t it, sir? 

A. I would say yes.”); CX 2531 (Rybacki, Dep. at 224) (describing Project Pricing as 

“not good for our -- the long-term health of this company or its shareholders”); see also 

CX 2480 (Napoli, Dep. at 46) (one of the risks of decentralized Project Pricing authority 

is that the market price can get dragged down); (CX 2485 (Walton, Dep. at 31-34) 

(observing that sales representatives with pricing authority could produce “instability and 

lower prices in the market.”); CX 2480 (Napoli, Dep. at 83-85) (discounting results in 

“price erosion,” or a lower bottom line and cash flow); CX 2191 (Napoli calling Star and 

others “idiots” for causing price deterioration through discounting)). 

4.5.3	 Rebates and Other Payment Terms 

562.	 At times, McWane, Sigma, and Star have provided additional discounts and price 

concessions to Distributors in the form of rebates, reductions in freight charges, and/or 

extensions of credit or payment terms. (Joint Stipulations of Fact (JX 0001) ¶ 16). 

4.5.3.1 Rebates 

563.	 A “rebate” is a percentage discount on all purchases by a Distributor from a supplier 

during a specific time period, typically for a year. (Minamyer, Tr. 3143 (Rebates are 

typically an annually negotiated percentage discount that Star provided its customers); 

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RX-655 (Brakefield, Dep. (Vol. 2) at 28-29) (describing Sigma periodic rebates to 

“volume customers”); Tatman, Tr. 297-298 (Rebates are written policies for a set period 

of time that may cover Fittings alone, or Fittings and other products); CX 2480 (Napoli, 

Dep. at 102-103) (rebates are corporate wide)). 

564. {

 (CX 2535 (Bhutada, Dep. 

at 107-108), in camera). {

 (CX 2535 (Bhutada, Dep. at 

109), in camera; Tatman, Tr. 298-299 { 

565. { } (CX 

2535 (Bhutada, Dep. at 110), in camera; RX-066 at 001-002 (Minamyer June 2008 email 

informing Star division managers that Star would exclude sales at Project Prices from 

rebate calculations)). 

566. Rebates are often important to Distributors because their earnings from Fittings rebates 

can be greater than the Distributors’ net profits from the sale of Fittings. (CX 2534 

(Bhutada, IHT at 58)). 

567. Functionally, Distributors look at rebates differently than Project Pricing, because rebates 

do not apply to a specific job that a Distributor is bidding, and are instead applied on an 

annual basis. (Webb, Tr. 2774). 

568. McWane offers one- to three-year corporate rebate agreements to its largest Distributor 

customers that are based on the Distributors’ total purchases of Fittings and other 

products manufactured by McWane, Inc., such as ductile iron pipes, hydrants and valves. 

(Tatman, Tr. 297-298). 

569. Sales data in McWane’s financial reports are reduced to exclude rebates; gross sales have 

rebates netted out of them. (CX 2481 (Nowlin, Dep. at 22-23)). The actual amount of 

rebates paid by McWane is not shown in any of McWane’s regularly prepared financial 

reports. (CX 2481 (Nowlin, Dep. at 112)). 

4.5.3.2 Freight Terms 

570. Each supplier has standard freight terms pursuant to which it will pay for shipping of 

Fittings to Distributors, and may also negotiate separate agreements with Distributors 

whereby the supplier will pay for freight outside of the standard terms for a specific 

project. (Tatman, Tr. 303-304; CX 2531 (Rybacki, Dep. at 24); CX 2535 (Bhutada, Dep. 

at 110)). 

571. McWane’s standard freight term is “full freight allowed,” or free shipping, for all 

purchases of at least 5,000 pounds of McWane products, including Fittings. (Tatman, Tr. 

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303-304). McWane sometimes offers shipping “discounts” to customers, by providing 

free shipping for quantities less than 5,000 pounds. (Tatman, Tr. 304). 

4.5.3.3 Payment Terms 

572.	 Payment terms are discounts that suppliers provide to Distributors for payment within a 

fixed amount of time. (Minamyer, Tr. 3143; Tatman, Tr. 304-305). 

573.	 { 

} 

(CX 2535 (Bhutada, Dep. at 109), in camera). 

574.	 The majority of McWane’s customers are subject to McWane’s standard payment terms, 

which provide a 2% discount for payment by the 15th of the month following the order. 

(Tatman, Tr. 304-305). { 

} (CX 2535 (Bhutada, Dep. at 109-110), in camera). 

575.	 Most Distributor customers pay within terms to take advantage of any rebates that would 

be available to the Distributor for doing so. (CX 2479 (McCullough, Dep. at 174-175)). 

576.	 McWane has offered longer payment terms – up to 90 days – to some customers, as well 

as discounts of up to 6% for on time payments. (Tatman, Tr. 305). 

Relevant Product Markets 

5.1	 Fittings Is a Relevant Product Market 

577.	 Ductile iron pipe fittings of 24” or less in diameter for use in Open Specification 

applications, whether manufactured within or outside the United States, for use in 

projects within the Unites States constitute a relevant product market (the “Fittings 

market”). (CX 2260 (Schumann Rep. at 13-14, 16); Schumann, Tr. 3769-3770, 3788­

3789; infra ¶¶ 579-616). 

5.1.1	 No Other Product Is a Substitute 

578.	 Other products are not functional substitutes for Fittings, and prices of other products do 

not constrain Fittings prices. (See infra §§ 5.1.1.1, 5.1.1.2). 

5.1.1.1 Other Products Are Not Interchangeable with Fittings 

579.	 There are no widely used substitutes for Fittings. (Answer ¶ 23; Saha, Tr. 1177-1178 

(other types of fittings are not interchangeable with ductile iron Fittings)). 

580.	 The principal potential substitutes for Fittings are polyvinyl chloride (PVC) or highdensity polyethylene (HDPE) fittings, but Fittings do not generally compete against PVC 

or HDPE fittings for use with ductile iron pipe. (CX 2501 (Prescott, IHT at 36) (pressure 

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rated PVC fittings are not used with ductile iron pipe); CX 2538 (McCutcheon, IHT (Vol. 

2) at 343) (PVC fittings are rarely used on ductile iron pipe); CX 2480 (Napoli, Dep. at 

27 (PVC not a substitute for Fittings)). 

581.	 PVC fittings are not a substitute for Fittings because they are more expensive. (CX 2538 

(McCutcheon, IHT (Vol. 2) at 340) (explaining that due to the cost of oil and the cost of 

resins, PVC fittings are more expensive than ductile iron pipe fittings); Webb, Tr. 2715 

(“Historically, I think [the price of PVC fittings has] been high. I don’t know if they’re 

higher than ductile, but I think all-inclusive with the restraining, the price of the fitting 

itself, that may be another reason why they’re not widely used.”)). 

582.	 PVC fittings are not a substitute for Fittings because PVC fittings do not have as high of 

a pressure rating as Fittings. (CX 2521 (Agarwal, IHT at 54-55) (“[T]hey [PVC fittings] 

do not hold up the pressure”); CX 2489 (Morrison, IHT at 41) (“The pressure rating on 

the plastic water fitting is a little less. It’s a 200-pound max rating, whereas a ductile 

waterworks fitting is 250-pound max. So, depending on the pressure, it’s going to 

exclude the PVC fitting.”)). 

583.	 PVC fittings are not a substitute for Fittings because engineers do not like the PVC or 

HDPE fitting’s susceptibility to fracture. (CX 2480 (Napoli, Dep. 27 (“No one, to my 

knowledge, has come up with a good plastic substitute for the strength of ductile iron.”); 

CX 2480 (Napoli, Dep. 28 (testifying that he has not heard of PVC fittings as being “even 

touted as being equal to or close to” a Fitting)). 

584.	 PVC fittings are not a substitute for Fittings because PVC fittings are limited in size to 

12” and below. (Webb, Tr. 2714-2715 (PVC fittings are “just not made in the sizes and 

configurations that mechanical joint fittings are.”); CX 2491 (Johnson, IHT at 45) 

(“[P]lastic water fittings or pressure fittings are generally limited to 12 inch on down.”); 

CX 2525 (Minamyer, IHT at 95-96) (“Q. Any substitute for those products [ductile iron 

pipe fittings], outside that group? A. Not really, no. Q. What about plastic fittings? A. 

Not particularly. In the size ranges, I don’t -- I haven’t really seen that. Q. When you say 

in the size ranges, what do you mean? A. In the size range of ductile fittings, three 

through 60 or something like that, and the plastic fittings don’t do that size range.”); CX 

2489 (Morrison, IHT at 42) (PVC pressure-rated fittings are only a potential substitute for 

small diameter applications: “2-inch, maybe 3-inch, but anything above that, 99 percent 

would be a ductile iron waterworks fitting over a PVC fitting.”)). 

585.	 PVC fittings are not a substitute for Fittings because certain markets do not allow PVC 

fittings to be used. (CX 2501 (Prescott, IHT at 33-34) (explaining that in those areas 

where ductile iron pipe is favored “there is no substitute for any of those ductile items 

[including Fittings]”); CX 2515 (Sheley, IHT at 65) (“Q. Any substitutes for those ductile 

iron pipe fittings? A. Not in this market. There are some markets that allow you to use 

some PVC product but not anywhere I do business.”)). 

586.	 PVC fittings are not a substitute for Fittings because PVC fittings are harder to restrain 

and install. (CX 2543 (Coryn, IHT at 53) (“[T]hey’re [PVC fittings] probably harder to 

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install because they’re slippery.”); Webb, Tr. 2715 (PVC fittings “have different 

restraining requirements than a mechanical joint fitting would.”)). 

587.	 Even where ductile iron pipe is not used, End Users only rarely specify pressure-rated 

high-density polyethylene (HDPE) and PVC fittings (rather than Fittings) for pressurized 

waterworks applications. (Tatman, Tr. 249 (in general, End Users do not use PVC 

fittings on ductile iron pipes, but End Users can use ductile iron Fittings on PVC pipes); 

Thees, Tr. 3054-3055; Minamyer, Tr. 3133 (use of plastic fittings is “extremely rare”); 

CX 2501 (Prescott, IHT at 34) (“HDPE is making some inroads, but not to any extent.”); 

CX 2502 (Prescott, Dep. at 48) (describing use of PVC fitting business as “[v]ery little”); 

CX 2480 (Napoli, Dep. at 28-29) (“I don’t recall ever seeing a PVC fitting even attempt 

to be used by an engineer.”)). 

588.	 Other than the limited, rare use of PVC pressure-rated fittings, there are no other products 

that are substitutes for Fittings in pressurized applications. (CX 2489 (Morrison, IHT at 

41-42); CX 2538 (McCutcheon, IHT (Vol. 2) at 342-343) (“Q. Beyond PVC pressure 

fittings, are there any other products that you can point me to that are substitutes or 

possible substitutes for ductile iron pipe fittings? A. No, sir.”); CX 2525 (Minamyer, IHT 

at 95) (“Q. Within the universe of ductile iron pipe fittings, if we take these different 

types of fittings and take them as a whole, proprietary joint fittings, flange fittings, pushon fittings, mechanical joint fittings, let’s just talk about that as the universe of ductile 

iron pipe fittings. Any substitute for those products, outside that group? A. Not really, 

no. Q. What about plastic fittings? A. Not particularly.”)). 

589.	 Brass Fittings are typically threaded and do not come larger than 2” in diameter. They 

are not substitutes for Fittings. (Thees, Tr. 3057- 3058; Webb, Tr. 2720 (brass fittings are 

threaded, and thus not compatible with underground pipes)). 

590.	 Steel Fittings are not used underground because the steel fitting would rust, and are not 

common substitutes for Fittings. (Thees, Tr. 3057, 3058). Steel pipe fittings are not used 

underground because the steel fitting would rust. (CX 2538 (McCutcheon, IHT (Vol. 2) 

at 343)). 

591.	 Cast iron or gray iron fittings are an older fittings technology. Distributors receive only a 

negligible demand for these products from End Users. (Webb, Tr. 2719; CX 2513 

(Webb, IHT at 59-60) (“I haven’t seen cast or grey iron fittings in ten, 15 years.”); CX 

2498 (Teske, Dep. at 68-69) (gray iron fittings do not meet specifications); CX 2501 

(Prescott, IHT at 37) (Full-body cast iron fittings are rarely used any more: “every once 

in awhile we find one . . . some old engineer that just won’t change”)). 

5.1.1.2 Other Types of Fittings Do Not Constrain Fittings Prices 

592.	 Fittings suppliers do not track prices of PVC fittings or take them into account when 

setting prices of Fittings. (Tatman, Tr. 250-251 (when setting the price of Fittings, 

McWane does not consider the price of PVC fittings); Tatman, Tr. 251 (McWane does 

not track the prices of PVC fittings); CX 2477 (Jansen, Dep. at 69-70, 77) (testifying that 

Mr. Jansen has never taken into account the price of PVC fittings when setting Fittings 

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prices); Minamyer, Tr. 3134 (does not recall tracking pricing for any Fittings substitutes, 

including plastic fittings); CX 2538 (McCutcheon, IHT (Vol. 2) at 341) (Star does not 

track the price of PVC fittings because the prices of ductile iron fittings and the price of 

PVC pressure fittings do not move together, and because the price of PVC pressure 

fittings does not have a big influence on the Fittings business); Saha, Tr. 1177 (the price 

of Fittings is not constrained by the price of PVC fittings); see also CX 2477 (Jansen, 

Dep. at 94) (McWane does not take into account the price of cast iron fittings when 

setting the price of Fittings)). 

593.	 Distributors do not seek to use prices of PVC fittings to negotiate prices of Fittings. 

(Webb, Tr. 2718; CX 2480 (Napoli, Dep. at 28) (does not remember ever being asked by 

a Distributor to lower the price of McWane’s Fittings because of the price of a PVC 

fitting); Saha, Tr. 1177 (he has never been asked by a customer to lower the price of a 

ductile iron pipe fitting because of the price of a PVC fitting)). 

594.	 Fittings suppliers do not track the price of cast iron fittings when setting Fittings prices. 

(CX 2477 (Jansen, Dep. at 94)). 

5.1.2	 Fittings of 24 Inches or Less in Diameter May Be Treated as a Cluster 

Market 

595.	 Fittings of 24” or less in diameter may be treated as a cluster market because the market 

conditions and analysis applicable to this cluster are identical, larger Fittings are subject 

to different market conditions, and the industry typically groups Fittings by sizes. (See 

infra ¶¶ 596-616). 

596.	 Individual Fittings of differing shapes and sizes are not substitutes for each other, because 

a Fitting must have a diameter appropriate for the pipe to which it is attached and a shape 

or design appropriate for its intended function (for example, changing the direction of 

flow by 90 degrees versus 22.5 degrees). (See generally Tatman, Tr. 220-221 (describing 

how Fittings are used in waterworks projects and identifying different types of Fittings 

including elbows, Ts, bends, coated Fittings, and reducers)). Each discrete size and shape 

of Fitting satisfies the requirements of a relevant market. (CX 2260-A (Schumann Rep. 

at 12)). 

5.1.2.1	 Market Analysis for Each Size and Shape of Fitting of 24 

Inches or Less Is Identical 

597.	 Fittings of 24” or less in diameter may be treated as a cluster market because the market 

analysis for each size and shape of Fitting is identical. (See infra ¶¶ 598-600). 

598.	 It is not necessary to analyze each size and shape of ductile iron pipe fitting in the range 

of 24” and below as a separate market. (CX 2260-A (Schumann Rep. at 13); Schumann, 

Tr. 3791-3792). 

599.	 The market analyses of each of these Fittings items would be essentially identical 

because the primary suppliers, customers, and Distributors are the same and the materials 

and other inputs used to produce the products are the same. (CX 2260-A (Schumann 

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Rep. at 13); Schumann, Tr. 3791-3792). A determination that McWane’s conduct with 

respect to the aggregate market is anticompetitive is analytically identical to a 

determination that the same conduct is anticompetitive as to each Fitting size and type 

within the cluster. (CX 2260-A (Schumann Rep. at 15); Schumann, Tr. 3790-3791). 

600.	 Thus, ductile iron pipe fittings with a diameter of 24” or less can be analyzed as if they 

were part of a single product market. (CX 2260-A (Schumann Rep. at 13)). 

5.1.2.2	 Fittings of 24 Inches or Less in Diameter Are Manufactured 

and Marketed Together and by Similar Methods 

601.	 Each size and shape of Fitting of 24” or less in diameter is made of the same material, by 

the same methods, and sold and marketed together by the same suppliers, through the 

same distribution channels, to the same customers, for use in the same or similar projects. 

(See infra ¶¶ 602-609). 

602.	 Different sizes and shapes of Fittings are made out of the same material and produced by 

the same methods. (See supra § 4.1.3). All Fittings must comply with AWWA 

standards. (CX 2522 (Agarwal, Dep. at 37); McCutcheon, Tr. 2292 (describing various 

AWWA specifications that customers use)). Compliance with AWWA specifications 

determines the interchangeability of Fittings. (CX 2477 (Jansen, Dep. at 86)). 

603.	 McWane, Sigma, and Star each supply a full line of Fittings of 24” or less in diameter. 

(Rybacki, Tr. 3572-3573; Tatman, Tr. 589; JX 0001, ¶¶ 1-3). 

604.	 Fittings prices are set as a package, through the announcement of price multipliers and 

the negotiation of Project Pricing multipliers and other pricing terms that apply across all 

of the different Fittings included in a given purchase. (CX 2535 (Bhutada, Dep. at 106 

(Q. And when a project pricing request is made “is it applicable only to one individual 

construction project? A. Typically, yes.”); Tatman, Tr. 258-259, 277 (describing 

national published list price the standard price component of Fittings pricing); Rybacki, 

Tr. 1103-1104, 1096-1097 (same); CX 2535 (Bhutada, Dep. at 102) (same); Webb, Tr. 

2770-2771 (explaining that HD received price communications from suppliers through 

national price lists and regional multipliers based on the national price); CX 1147 at 001 

(describing the price list culture of the Fittings industry)). Multipliers vary from state to 

state. (Tatman, Tr. 277 (describing state multipliers as the second component of Fittings 

pricing)). 

605.	 Distributors purchase Fittings from suppliers, and then further incorporate the Fittings 

into a bundle with other waterworks products for resale to End Users. (CX 2502 

(Prescott, Dep. at 15) (“Q. What manufacturers do you buy fittings from right now? A. 

Tyler, Sigma, Star . . . Those are ductile iron fittings.”); CX 2490 (Morrison, Dep. at 66) 

(identifying Fittings suppliers that sell to Distributors); CX 2504 (Thees, Dep. at 114) 

(“We supply bundle of goods to the contractor, and they [End Users] need fittings to put 

together the pipe.”); CX 2504 (Thees, Dep. at 149) (Fitting suppliers are “selling a 

component as opposed to a bundle.”); CX 2503 (Thees, IHT at 71) (agreeing that 

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606. 

607. 

608. 

609. 

610. 

611. 

612. 

613.
 

Distributors carry the entire bundle of products used in a waterworks project and a 

Fittings supplier might not have the other products in the bundle)). 

Virtually all Fittings are sold through waterworks Distributors. (See supra § 4.4.4.1). 

The typical End Users of Fittings are municipalities, regional water authorities, and the 

contractors they engage to construct waterworks projects. (See supra § 4.4.3). 

Functionally, Fittings up to 12” in diameter are typically used for residential work, and 

14” to 24” Fittings are typically used by municipalities or plants with long transmission 

lines. (Brakefield, Tr. 1279-1281; CX 1479 (describing categories in CX 1479, and 

explaining that 2” to 12” Fittings are predominately used for housing subdivisions and 

private contracting work); (Brakefield, Tr. 1281; CX 1479) (describing categories in CX 

1479 and explaining that End Users of Fittings in the 14” through 24” range are generally 

municipalities or plants with long transmission lines funded by State Revolving Fund or 

EPA money). 

In contrast, Fittings over 24” in diameter are considered to be a large diameter and are a 

more unusual size for the industry. (CX 2538 (McCutcheon, IHT (Vol. 2) at 322)). They 

are used for large treatment plants or large transmission lines. (Brakefield, Tr. 1281; CX 

1479). (85% to 95% of Fittings sales are Fittings below 24”). (CX 2502 (Prescott, Dep. 

at 76-77)). 

5.1.2.3	 Market Conditions for Fittings of 24 Inches or Less in 

Diameter Are Distinct from Those for Fittings of 30 Inches or 

Greater in Diameter 

The market conditions for Fittings of 24” or less in diameter differ from those for Fittings 

of 30” or greater. (See infra ¶¶ 611-614). 

Fittings with diameters of 30” and greater (large diameter fittings) are not in the Fittings 

relevant product market. (CX 2260-A (Schumann Rep. at 14)). The competitive analysis 

of large fittings differs from that of small and medium fittings (those with diameters of 

24” and below), because ACIPCO, a significant producer of large diameter fittings is not 

a producer of Fittings with diameters of 24” and below. (CX 2260-A (Schumann Rep. at 

14); see supra § 3.4.1.1). 

ACIPCO currently manufactures only Domestic Fittings ranging from 30” to 64” in 

diameter. ACIPCO exited the manufacture of Fittings under 30” in diameter in 2006. 

(CX 1897 at 003; CX 2486 (Burns, Dep. at 15, 23-28)). 

interest in extending its product scope to include small and medium diameter Fittings. 

ACIPCO does not have any 

(CX 2486 (Burns, Dep. at 15, 30)). 

For 2008, in the market consisting of ductile iron pipe fittings with diameters greater than 

24” (i.e., 30” and above), ACIPCO’s share of United States sales was approximately { 

. (See CX 1895 at 001, 005, in camera (ACIPCO data showing 2008 sales of 

{ } tons); CX 2486 (Burns, Dep. at 159-160) (describing CX 1895); RX-127 at 002 

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(DIFRA data showing the other suppliers’ combined 2008 sales of fittings greater than 

24” in diameter to be { } tons). 

614.	 In 2009, before Star’s entry into domestic manufacture, ACIPCO was the dominant 

domestic producer of ductile iron pipe fittings with diameters of 30” and above. (CX 

2222 (identifying “only one domestic manufacturer for 30” and larger fittings - American 

Cast Iron Pipe Company (ACIPCO),” but noting that McWane does make a minimum 

number of large fittings but not enough to service the market)). 

5.1.2.4	 Grouping Fittings of 24 Inches or Less in Diameter is 

Consistent with Industry Practice 

615.	 Grouping Fittings of 24” or less in diameter is consistent with industry practice. (RX-632 

at 028-029 (Tyler Union Waterworks Fittings Financial Statements containing fittings 

sales and gross profit analysis by three size ranges: 3”-12”, 14”-24”, and 30” and up); 

CX 1339 at 003 (January 2009 DIFRA report showing shipment analysis by three size 

ranges: 2”-12”, 14”-24”, and over 24”); CX 0622 at 008-010 (Tyler Union 2009 Sales 

Meeting presentation, separating out market share by size categories of 3”-12” diameter, 

14”-24” diameter, and >24” diameter)). 

616.	 Historically, the waterworks industry has differentiated Fittings of 3” to 24” in diameter 

from Fittings of 30” or greater diameter. (CX 2533 (Bhargava, Dep. at 43) (“Q. . . . why 

does Star divide the utility fittings into the two categories, the three-inch to 24-inch and 

the 30-inch and up? A. That is industry practice also.”)). 

5.2	 Domestic Fittings Is a Relevant Product Market 

617.	 Ductile iron pipe fittings of 24” or less in diameter for use in projects in the United States 

that have a Domestic-only Specification constitute a second relevant product market (the 

“Domestic Fittings market”). (CX 2260-A (Schumann Rep. at 15-16); Schumann, Tr. 

3769-3770, 3789-3791; infra ¶¶ 618-633). 

5.2.1	 Imported Fittings Are Not Substitutes for Domestic Fittings for 

Domestic-Only Specifications 

618.	 Imported Fittings are not substitutes for Domestic Fittings for projects with Domesticonly Specifications. (Infra ¶¶ 619-627). 

619.	 Some municipalities and Federal, State and local government agencies require the use of 

domestically-manufactured product as a matter of preference and as a matter of law. If a 

law requires a municipality to use Domestic Fittings, or if a municipality prefers 

Domestic Fittings, the specification will state that the Fittings need to be “domestic 

only.” (CX 2537 (McCutcheon, IHT (Vol. 1) at 61, 90); Thees, Tr. 3068; CX 2477 

(Jansen, Dep. at 20) (defining a specification for Domestic Fittings as one requiring 

products manufactured in the United States); see supra § 4.3). 

620.	 A Distributor will not purchase an imported Fitting if the End User’s specification calls 

for a Domestic Fitting, and suppliers do not sell imported Fittings into Domestic-only 

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Specifications. (Webb, Tr. 2716-2718; Thees, Tr. 3056 (“Q. If the final spec says 

‘domestic fitting,’ can you substitute an imported fitting? A. Only if it allowed the use of 

import fitting. If it was domestic only . . . if that was the final spec must be domestic, 

no.”); (CX 2516 (Sheley, Dep. at 156) (“Q. Can you put an import [Fitting] in a domestic 

job? A. Domestic only, no.”); McCutcheon, Tr. 2283 (Mr. McCutcheon recalls no 

instances of Star selling an imported Fitting into a Domestic-only Specification during 

ARRA); Saha, Tr. 1173-1174 (Saha has never tried to sell imported Fittings into a 

Domestic-only Specification, either at NACIP or at PCI)). 

5.2.1.1 ARRA-Funded Projects 

621.	 Domestic Fittings were required and used on ARRA-funded projects. (CX 2513 (Webb, 

IHT at 95) (HD Supply was generally unable to use imported Fittings on ARRA-funded 

projects); CX 2501 (Prescott, IHT at 66-67) (explaining that domestic fittings were 

required and ‘[n]obody had a choice”)). 

622.	 Under ARRA, End Users were particularly concerned about purchasing imported Fittings 

for projects funded by ARRA because of potentially severe penalties for using nonDomestic products. (CX 2537 (McCutcheon, IHT (Vol. 1) at 99)). 

623.	 Immediately after the passage of ARRA, there was some hope among suppliers of nonDomestic Fittings that certain waivers and exemptions under ARRA, or the applicability 

of NAFTA, would allow them to supply non-Domestic Fittings into ARRA projects. 

(See infra § 8.1.3). 

624.	 However, with few exceptions, such methods of enabling the supply of non-Domestic 

Fittings into ARRA projects were not successful, and non-Domestic Fittings were not 

used on ARRA-funded projects. (CX 2501 (Prescott, IHT at 66) (“Q. Did you ever get a 

waiver or try to get a waiver to allow the use of imported fittings on stimulus projects? 

A. To my knowledge, no.”); CX 2510 (Groeniger, Dep. at 173) (“Q. So you never used a 

de minimis waiver for fittings? A. Not that I can recall.”); CX 2489 (Morrison, IHT at 

51) (there were no waivers or exemptions that allowed the use of imported Fittings on 

Domestic-only ARRA-funded projects); CX 2489 (Morrison, IHT at 51) (ARRA-funded 

projects serviced by C.I. Thornburg “were all served with domestic fittings.”); see also 

infra § 8.1.3). 

5.2.1.2 Other Domestic-Only Projects 

625.	 Without regard to ARRA, some government entities, including the State of Pennsylvania, 

United States military and federal facilities, and some jurisdictions in the northeastern 

United States require domestic products to be used in any projects they fund. (CX 2537 

(McCutcheon, IHT (Vol. 1) at 83-84); see supra § 4.3). 

626.	 Some municipalities, in states like Pennsylvania, Illinois, and Maryland, show a strong 

preference for Domestic Fittings despite the pricing differentials because of the influence 

of labor unions. (CX 2534 (Bhutada, IHT at 31-32)). 

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627.	 End users who specify Domestic Fittings because of preference are aware of, but not 

sensitive to, the price differential between Domestic Fittings and import Fittings. (CX 

2489 (Morrison, IHT at 46) (“Well, they’re aware of [the price differential], but in the 

overall cost of a project, the cost of your fittings is minimal. Now, they may be twice as 

much, but if you’re doing a million-dollar project and you’re paying $10,000 more for the 

fittings, that’s negligible in some people’s eyes.”); CX 2527 (Pais, IHT at 36-37) 

(engineers deciding whether to have a Domestic-only specification are not sensitive to 

prices of Fittings)). 

5.2.2	 Domestic Fittings Are Sold at Substantially Higher Prices Than Those 

Sold into Open-Specification Jobs 

628.	 Domestic Fittings are sold at substantially higher prices than non-Domestic Fittings. 

(Answer at ¶ 20 (admitting that McWane’s Domestic Fittings sold into Domestic-only 

Specifications are generally sold at higher prices than non-Domestic Fittings); CX 2535 

(Bhutada, Dep. at 13); Webb, Tr. 2733 (there is a price differential between Domestic and 

imported Fittings, with Domestic Fittings being higher than imported Fittings); CX 2513 

(Webb, IHT at 77) (Domestic Fittings have always been more expensive than imports, 

both before and after ARRA); Sheley, Tr. 3402-3404 (both before and after passage of 

ARRA, the price of Domestic Fittings was higher than the price of imported Fittings); 

Thees, Tr. 3074 (the price of Domestic Fittings is higher than the price of non-Domestic 

Fittings by approximately 30 to 40 percent); CX 2502 (Prescott, Dep. at 30) (imported 

Fittings cheaper than Domestic Fittings); CX 2500 (Swalley, Dep. at 65-67) (Domestic 

Fittings are dramatically more expensive than non-Domestic Fittings though they are of 

similar quality to non-Domestic Fittings)). 

629.	 McWane’s February 2008 price multipliers for Domestic Fittings (i.e., domestically 

manufactured fittings sold into Domestic-only Specifications) were substantially higher 

than its February 2008 “blended” multipliers (for Fittings sold into Open Specification 

projects). For example, whereas a given non-Domestic Fitting might sell in Texas for 

$280, the corresponding Domestic Fitting would sell for $440, an approximately 57% 

higher price. (RX-410 at 0001, 0002 (Domestic and blended multiplier maps)). McWane 

offers Domestic Fittings at the same (higher) price, whether the Domestic-only 

Specification in question is a result of legal requirements or End User preference. (See 

RX-410 at 0002 Domestic multiplier map, not distinguishing legally required Domesticonly Specifications from End User preference)). Further examples of the price 

differences between Domestic and non-Domestic Fittings according to McWane’s 

February 2008 price multiplier maps include the following: 

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State Non-Domestic 

Multiplier 

Domestic 

Multiplier 

Percentage 

Difference 

California .33 .44 33.3% 

Colorado .33 .49 48.5% 

Florida .25 .49 96.0% 

Michigan .33 .45 36.4% 

Minnesota .28 .45 60.7% 

New York .31 .44 41.9% 

Ohio .25 .45 80.0% 

Oregon .42 .51 21.4% 

(RX-410 at 0001, 0002; see also CX 2534 (Bhutada IHT at 31) (estimating that before 

ARRA, there was a price differential of approximately 20% to 30% between domestic 

and imported Fittings); CX 1562 at 002 (for 2007 and the first half of 2008, the average 

gross invoice price per ton of McWane’s Domestic Fittings exceeded the gross invoice 

price per ton of McWane’s blended Fittings by between 30% and 37%); CX 1564 at 002 

(showing delta between domestic and blended fittings for 2007 and first quarter of 2008); 

McCutcheon, Tr. 2277-2278 (at the time ARRA’s enactment in early 2009, prices for 

Domestic Fittings were higher than the prices for imported Fittings)). 

630.	 Similarly, in December 2009 McWane’s Domestic Fittings multipliers were substantially 

higher than its blended Fittings multipliers (CX 1852 at 002 (in December 2009 Sigma 

announced Fittings multipliers of .46, .58, and .70 for Domestic Fittings, and .27 for the 

same Fittings if imported)). 

631.	 Due to the price differential between Fittings sold into open and domestic specifications, 

McWane does not provide quotes for Domestic Fittings to be used for Open 

Specification. (CX 2477 (Jansen, Dep. at 96)). 

632.	 The prices of Domestic and non-Domestic Fittings do not move in tandem; when 

McWane raises prices on Domestic Fittings, it does not necessarily raise the price of nonDomestic Fittings the same amount (if at all), and when McWane raises prices of nonDomestic Fittings is does not necessarily raise prices of Domestic Fittings the same 

amount (if at all). (E.g., CX 1397 at 002 (McWane June 2010 price letter “implementing 

a price increase on all Non Domestic [Fittings]” but not “implementing any price action, 

at this time, for our Domestic products”); CX 1660 (January 5, 2010 McWane email 

stating “That is correct. Domestic increases. Non-Domestic does not.”)). 

633.	 In 2008, McWane did not typically offer Project Pricing for Domestic Fittings because 

the less competitive Domestic market did not require it. (Tatman, Tr. 334-335; CX 2199 

at 001 (McWane’s Pricing Coordinator email refusing a sales person’s request for Project 

Pricing for Domestic Fittings because “We are the only one who makes the full line of 

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24” and down. No need to drop the price unless Star is an issue.”); CX 2480 (Napoli, 

Dep. at 73) (job pricing is less frequent on Domestic Fittings jobs)). 

5.3	 The Relevant Geographic Market for Fittings and Domestic Fittings Consists 

of All Relevant Products Sold for Use in the United States 

634.	 The relevant geographic market for both Fittings and Domestic Fittings consists of all 

relevant products sold for use in the United States. (CX 2260-A (Schumann Rep. at 17); 

Schumann, Tr. 3794; infra ¶¶ 635-639). 

635.	 The relevant geographic market does not extend to products sold for use outside the 

United States, because Fittings manufactured for use in the United States are measured in 

inches, and cannot be used outside the United States, where fittings specifications are 

metric. (Pais, Tr. 1887). 

636.	 The relevant geographic market extends to the entire United States because Fittings 

suppliers ship their products nationally from multiple locations. (CX 2260-A (Schumann 

Rep. at 17); Rybacki, Tr. at 1089-1092 (Sigma has five main warehouses, some satellite 

warehouses, and distribution centers in Florida, California, Washington, and Arizona); 

McCutcheon, Tr. at 2264 (Star has 13 distribution centers in North America in order to 

“stock product closer to [customers] for better delivery times”); RX-637 (Jansen, Dep. at 

144-145) (McWane has distribution centers in Texas, Alabama, California, Oregon, and 

Illinois, enabling one-to-two day delivery to 95 percent of the country)). 

637.	 From the perspective of a local Distributor, the Fittings of one manufacturer/supplier are 

interchangeable with those of another manufacturer/supplier located elsewhere in the 

United States. (CX 2477 (Jansen, Dep. at 86) (Fittings produced by Sigma, McWane and 

Star that meet the same AWWA specifications are interchangeable with each other); CX 

2483 (Tatman, IHT at 87) (“[Fittings] haven’t changed in 20 years. Quite frankly, yours 

are the same as everybody else’s”)). 

638.	 Distributors do not purchase Fittings from manufacturers/suppliers outside of the United 

States. (Webb, Tr. 2746 (listing McWane, Sigma, and Star as HD Supply’s suppliers of 

imported ductile iron pipe fittings); Thees, Tr. 3082 (stating that Ferguson buys imported 

fittings from McWane, Star, and Sigma); Sheley, Tr. 3398 (TDG has programs with four 

fittings suppliers: SIP-Serampore, Tyler/Union, Star and Sigma)). 

639.	 There may be smaller, local relevant geographic markets, but a finding of smaller 

markets does not impact the analysis of the conduct at issue in this case. (Schumann, Tr. 

3794-3795). 

5.4	 McWane, Sigma, and Star Collectively Have Market Power in the Fittings 

Market 

640.	 McWane, Sigma, and Star collectively have market power in the United States Fittings 

market. (Infra ¶¶ 641-650). 

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5.4.1	 Collectively, McWane, Sigma, and Star Account for a Very High 

Share of the Fittings Market 

641.	 McWane, Sigma, and Star collectively account for more than { } of Fittings 

(including both domestic and imported) sold in the United States. (Supra ¶ 456). 

5.4.2 There Are High Barriers to Entry into the Fittings Market 

642.	 There are high barriers to entry into the Fittings market. (Infra ¶¶ 643-650). 

643.	 In a market with barriers to entry, an incumbent does not face the disruption of price 

caused by an entrant and the enhanced competition that an entrant would provide. 

(Schumann, Tr. 3948). 

644.	 Barriers to entry into the Fittings market are high. (Pais, Tr. 2118 (Fittings industry was 

“very difficult to enter”; “The barrier for entry in our business is very high”); CX 1003 at 

004 (Pais memo observing that “one of the reasons Sigma succeeded in this product 

range is due to the prohibitive barrier to entry with the high cost of tooling etc.”); CX 

2525 (Minamyer, IHT at 99, 100) (there have been few examples of entry into the market 

for Fittings)). 

645.	 Because Fittings are commodity products, Distributors base their purchasing decisions in 

part on relationships, and so developing relationships with Distributors is an important 

part of the business of Fittings suppliers. (Minamyer, Tr. 3135; CX 2538 (McCutcheon, 

IHT (Vol. 2) at 348)). A new entrant must overcome existing relationships between 

existing manufacturers and the Distributors and End Users. (CX 2525 (Minamyer, IHT 

at 99, 102, 103-104)). When SIP began offering Fittings, SIP had existing relationships 

with waterworks suppliers due to its sale of municipal castings. (RX-681 (Agarwal, Dep. 

at 77)). 

646.	 A new entrant must make a significant capital investment to enter the Fittings market. 

(CX 2530 (Rona, Dep. at 256-257); CX 2500 (Swalley, Dep. at 102-107 (describing costs 

of obtaining certifications and develop molds)). For example, a new entrant must build 

its own foundry or develop a supply chain of foundries that can produce its Fittings. 

(Saha, Tr. 1166-1167 (to begin selling Fittings, NACIP needed to source foundries that 

produced Fittings); see also infra ¶¶ 1721-1724 (describing Star’s alternatives for using 

foundries to produce Domestic Fittings)). An entrant must also develop expertise in 

design engineering. (Rybacki, Tr. 1092, 1094 (even as a “virtual manufacturer,” Sigma’s 

engineering staff produces the drawings to make Fittings patterns, and Sigma maintains 

engineering groups in China and India to oversee the production process); see also supra 

¶ 60 (describing Sigma engineering expertise); infra ¶ 1666 (Star’s engineering expertise 

needed to operate in the imported Fittings business was available to its Domestic Fittings 

business)). 

647.	 It takes time to develop a reputation for quality service and quality product as a validated 

supplier of Fittings. (CX 2525 (Minamyer, IHT at 99)). A new entrant must meet the 

requirements for specification, i.e., the End User’s approval of the supplier’s product for 

use in individual projects. (CX 2525 (Minamyer, IHT at 99, 100)). A market entrant 

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must secure the testing and approval of its Fittings by the municipalities or other End 

Users. (CX 2538 (McCutcheon, IHT (Vol. 2) at 348)). An End User that has already 

tested and approved Fittings from established companies has little incentive to expedite 

the testing and approval process for a new manufacturer. (CX 2538 (McCutcheon, IHT 

(Vol. 2) at 348); see also Saha, Tr. 1166-1167, 1163 (to begin selling Fittings, NACIP 

needed to obtain warehouses, obtain AWWA Underwriters Laboratories (UL) 

certification and National Sanitation Foundation (NSF) approvals, acquire patterns or 

molds, source foundries that produced Fittings, and establish Distributors through which 

to sell); CX 2522 (Agarwal, Dep. at 77-78) (to sell Fittings, SIP first needed to obtain UL 

and NSF certification, and FM approval; SIP also received municipality approvals and 

placement on engineers’ approved lists before supplying Domestic Fittings)). 

648.	 A new entrant into the Fittings market would need to develop hundreds of patterns and 

moldings. (CX 2533 (Bhargava, Dep. at 88-89) (describing need to assemble hundreds of 

fitting patterns); CX 1395 at 003 (Pais describing work involved in developing a full 

range of Fittings production); Saha, Tr. 1166-1167 (to begin selling Fittings, NACIP 

needed to acquire patterns or molds); CX 2500 (Swalley, Dep. at 102-107) (describing 

costs of obtaining certifications and developing molds)). A new entrant also must incur a 

significant cost of inventory. (CX 2525 (Minamyer, IHT at 99)). 

649.	 A new entrant into the Fittings market would need about three to five years to enter the 

market. (CX 2538 (McCutcheon, IHT (Vol. 2) at 348)). SIP took approximately three 

years to offer a full line of 3500 unique Fittings up to 48” in diameter. (RX-681 

(Agarwal, Dep. at 30); CX 2521 (Agarwal, IHT at 64-65)). 

650.	 In a market with inelastic demand such as the Fittings market, lowering price will not 

cause the market to expand as much as in a market with elastic demand. Thus, it is 

difficult for an entrant to take sales away from the market incumbent in a market with 

inelastic demand. (Schumann, Tr. 3948; see also supra § 4.2.2 (demand for Fittings is 

inelastic)). Inelastic demand for Fittings indicates that the rewards from price cutting are 

likely to be small and the rewards from collusion are likely to be large. (CX 2260-A 

(Schumann Rep. at 36)). 

The Fittings Market Is Conducive to Collusion 

6.1	 Oligopoly Theory Describes How Firms in a Market Can Obtain Higher 

Profits Through Coordination and Accommodation 

651.	 The market for the sale of Fittings in the United States is a highly concentrated oligopoly 

of three firms, McWane, Sigma, and Star. (CX 2260-A (Schumann Rep. at 25); 

Schumann, Tr. 3795; supra ¶¶ 454-461). 

652.	 Oligopolies are markets characterized by a few large firms selling all or most of the 

market’s output. Because there are few firms in an oligopoly, each firm’s profit 

maximizing price and output decisions depend on the price, output, and strategic behavior 

of the other firms in the market. (CX 2260-A at 25) { 

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} (CX 2260 (Schumann Rep. at 25), in camera; Schumann, Tr. 3796; infra ¶¶ 

666-669 { } 

653.	 To maximize its profits, an oligopolist must account, in its strategic decision-making, for 

the likely strategic reactions of other oligopolists. (CX 2260-A (Schumann Rep. at 25)). 

654.	 By { } firms in an oligopoly may be able to 

develop strategies through observations associated with their ongoing interactions in the 

market that tend to promote cooperative behavior and diminish competitive behavior. 

(CX 2260 (Schumann Rep. at 25), in camera; Schumann, Tr. 3797). This sort of strategic 

behavior by firms in an oligopoly may allow them to jointly obtain prices and profits that 

exceed competitive levels. (CX 2260-A (Schumann Rep. at 25); Schumann, Tr. 3799­

3800). 

655.	 Jointly, the firms in a market can obtain higher profits through coordination and 

accommodation. (CX 2260-A (Schumann Rep. at 26)). 

656.	 Pricing and margin gains can be made through a proactive pricing strategy where there 

are few players leading and controlling a market niche. Sigma’s Mr. Pais recognized this 

strategy in a September 2008 marketing strategy memorandum where he explained that 

price elasticity for Fittings is low, and “lower prices don’t necessarily translate into 

proportionately higher volume.” (CX 1155 at 003 (stressing the need for “a certain 

amount of discipline and a selectively aggressive sales strategy” because of low demand 

elasticity)). 

657.	 Reaching and sustaining coordinated interaction requires that several challenges be 

overcome, including selecting and coordinating the behavior of cartel participants on 

mutually consistent, collusive strategies; monitoring the behavior of cartel participants to 

detect and deter defections from these collusive strategies; and preventing entry (or 

expansion) by non-cartel firms. (CX 2260-A (Schumann Rep. at 26-27)). 

658.	 The ability to enforce consensus is critical to successful coordination. (CX 2260-A 

(Schumann Rep. at 28)). 

659.	 Uncertainty regarding the behavior of rivals can lead to price cutting by encouraging 

firms to cheat on their rivals before their rivals can cheat on them. (CX 2260-A 

(Schumann Rep. at 31)). The lack of trust in rivals creates or enhances the uncertainty 

that each firm in an oligopoly faces with respect to the likelihood that a rival will cheat. 

(CX 2260-A (Schumann Rep. at 31)). Cheating or secret price cutting by firms in an 

oligopoly causes market prices to fall. (CX 2260-A (Schumann Rep. at 26-27, 47)). 

Price transparency is conducive to coordination; transparency is one way of providing a 

means for rivals to detect cheating on a consensus price, which increases the risk of 

punishment and thereby creates a disincentive for such cheating in the first instance. (CX 

2260-A (Schumann Rep. at 36)). 

660.	 By promoting trust through personal relationships that casual social interactions and 

casual communications encourage, informal communication reduces uncertainty with 

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respect to rivals’ willingness to secretly cut prices, which acts to maintain high prices and 

lowers consumer welfare. (CX 2260-A (Schumann Rep. at 31)). 

661.	 Participation in trade association activities may facilitate coordination, including 

collusion. (CX 2260-A (Schumann Rep. at 31)). Trade associations may facilitate the 

exchange of competitively sensitive information and general communications and social 

interactions between rival executives in an oligopoly. (CX 2260-A (Schumann Rep. at 

31)). 

662.	 If interactions in an oligopoly are altered to reduce the level of uncertainty and promote 

the detection of cheating, cheating is less likely to take place and cartel agreement is 

more likely to be sustained. (Schumann, Tr. 3801-3803). 

6.2	 Factors Indicating That a Market is Highly Susceptible to Collusion Are 

Present in the Fittings Market 

663.	 Characteristics indicating that a market is likely to be susceptible to coordinated 

interaction, including collusion, include (1) high concentration; (2) few rivals; (3) product 

homogeneity; (4) inelastic demand; (5) price transparency; (6) trade association; (7) 

information exchange; (8) unconcentrated buyers; (9) barriers to entry; and (10) industry 

social structure. (CX 2260-A (Schumann Rep. at 27-28); Schumann, Tr. 3809-3820). 

Not all of these characteristics are necessary for successful coordination to occur. (CX 

2260 (Schumann Rep. at 28)). 

664.	 In the 2007-2008 time period, the Fittings market exhibited many of the characteristics 

that indicate a market is conducive to coordination. (CX 2260-A (Schumann Rep. at 34); 

Schumann, Tr. 3823-3838). In sum: 

a.	 The Fittings market is characterized by very high concentration. (CX 2260 

(Schumann Rep. at 34)). 

} 

(CX 2260 (Schumann Rep. at 18 tbl. 1), in camera). HHIs are the standard measure 

of market concentration. (CX 2260-A (Schumann Rep. at 17). An HHI above 2500 

is classified by federal antitrust enforcement agencies as reflecting a highly 

concentrated market. (US DOJ and FTC Horizontal Merger Guidelines at 18-19). 

b.	 The Fittings market is characterized by few rivals: as a group, McWane, Sigma, and 

Star, account for more than { } of the Fittings (including both domestic and 

imported) sold in the United States. (CX 2260 (Schumann Rep. at 17 & 18 tbl. 1), in 

camera; supra ¶ 456). 

c.	 Fittings of any particular size or shape are homogeneous commodity products 

manufactured to meet industry-wide standards. (Supra ¶¶ 415-417). 

d.	 The demand for Fittings is highly inelastic over the range of prices germane to 

Fittings transactions. (CX 2260-A (Schumann Rep. at 35; Schumann, Tr. 3830); see 

also RX-712A (Normann Rep. at 24) (industry demand for Fittings is likely 

inelastic); supra ¶¶ 419-424 (describing inelastic nature of Fittings market)). 

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e.	 The published pricing structure of the Fittings industry is highly transparent. (Infra 

¶¶ 670-678) . However, it is difficult to observe project pricing, although the firms 

do track instances of project pricing by their competitors. (Infra ¶¶ 679-683). A key 

objective of the suppliers’ coordinated conduct over the course of 2008 was to 

enhance price transparency by curtailing Project Pricing. (Infra ¶¶ 914-919 

(describing Tatman plan goal of transparency)). 

f.	 The suppliers’ formation of the DIFRA trade association and exchange sales 

information in 2007 and 2008 made the Fittings market even more transparent and 

susceptible to collusion, in part by providing a mechanism by which suppliers’ could 

monitor competitors’ compliance and detect and deter defections from the collusive 

strategies. (CX 2260-A (Schumann Rep. at 47); infra ¶¶ 1261-1337 (describing 

purpose and use of DIFRA information exchange)). 

g. The buyers of Fittings (Distributors and End Users) are unconcentrated at the national 

level. (CX 2260-A (Schumann Rep. at 35); Schumann, Tr. 3827-3829); supra §§ 

4.4.3, 4.4.4). 

h.	 There are high barriers to the entry of new suppliers into the Fittings market. (Supra 

¶¶ 642-650). 

i.	 The social structure of the Fittings industry is conducive to collusion. There is 

regular interaction and communication among suppliers’ senior executives, and 

certain senior executives at McWane, Sigma, and Star have known each other for 

many years. (CX 2260-A (Schumann Rep. at 37-38); infra ¶¶ 700-827). 

665.	 McWane, Sigma, and Star took advantage of the characteristics of Fittings and the 

Fittings market to embark on a course of action that allowed them to collude explicitly. 

(CX 2260-A (Schumann Rep. at 38); infra § 7). 

6.3	 Fittings Market Pricing Dynamics Are Conducive to Collusion 

6.3.1	 Pricing Interdependence 

666.	 { } 

(Infra ¶¶ 667-669; CX 2260 (Schumann Rep. at 25), in camera). 

667.	 When McWane announces an increase in its list prices or published multipliers, Sigma 

and Star typically follow the increase with identical published price increases of their 

own. McWane is aware of this market practice. (Tatman, Tr. 257, 377-378 (“[W]hat 

historically happened is McWane will put out a new list price and historically our 

competitors match our list price . . . .”); Pais, Tr. 1920 (“McWane is an industry leader. 

Most of the time they set pricing and others try and follow as well as we can.”); Pais, Tr. 

1923-1924 (“[McWane] call[s] the shots in most of the pricing trends, you know, not on a 

day-to-day basis but overall in the long term.”); CX 2538 (McCutcheon, IHT (Vol. 2) at 

421) (“I’ve followed every increase [McWane has] ever taken.”); CX 2535 (Bhutada, 

Dep. at 100, 103) (Star usually monitors the list price and multipliers announced by 

McWane and, when McWane announces a new published price, Star typically announces 

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identical prices); Minamyer, Tr. 3138-3142 (Star’s standard practice, including in 2008, 

was to match McWane’s and Sigma’s Fittings multipliers in each trading area); CX 2539 

(McCutcheon, Dep. at 21) (“we would follow what McWane would publish and we 

would use the multipliers that they used”); McCutcheon, Tr. 2270 (Star sets its published 

Fittings multipliers to match McWane’s published Fittings multipliers, for imported 

Fittings, Domestic Fittings, and for all geographic regions in the United States); 

McCutcheon, Tr. 2269 (Star’s Fittings list prices are almost identical to McWane’s 

Fittings list prices); Rybacki, Tr. 1098 (Sigma list prices largely match McWane, and try 

to match multipliers in a “ballpark” sense); Rybacki, Tr. 3574 (referring to July 2008 

McWane price increase: “If they were going up, we needed a price increase at that time, 

and I wanted to make sure that we were locked step.”); Rybacki, Tr. 3576-3577 (Sigma is 

“[a]lways trying” to keep Sigma’s multipliers the same as the competition’s); Tatman, Tr. 

336-337 (Sigma has historically maintained the same list price as McWane); CX 2500 

(Swalley, Dep. at 35) (Electrosteel USA uses the same Fittings price lists as those 

published by McWane, Star, and Sigma to price its Fittings)). 

668.	 Suppliers cannot sustain a price increase unless the other suppliers follow suit and 

increase their prices. (Rybacki, Tr. 1113, 1114 (“Q. Can you go up [in price] if your 

competitors don’t follow you? A. No.”); Pais, Tr. 1936-1937 (“[U]p to a point we need 

the market to support a price that we wish to charge,” and any price change that was not 

followed by the other suppliers “naturally it would not last”); CX 1189 at 002 (Sigma 

canceling issuance of new price list in January 2008 after McWane did not follow); CX 

0824 (Star putting previously announced price increase on hold following McWane’s 

announcement that it was not raising price); McCutcheon, Tr. 2425 (explaining 

withdrawal of price increase: “I was unhappy about it, but if -- if you’re the highestpriced fitting in a commodity market, you’re not going to sell a lot of fittings.”); CX 1702 

at 001 (email from Rick Tatman explaining the interdependence of supplier pricing: “I 

don’t believe with our silence and Star’s push announcement that Sigma will hold to their 

Jan 2nd effective date so we have some time to get it right.”)). 

669.	 The Fittings suppliers are aware that their pricing policies are interdependent. If one 

supplier competes aggressively with Project Pricing, the other suppliers know that they 

must meet that supplier’s price or risk losing business. (supra §§ 4.2.4, 4.5.2; Rybacki, 

Tr. 1113; Pais, Tr. 1931-1932 (explaining that “everyone realizes” that for suppliers to be 

more profitable that the “only way that can happen is if the market bears as a whole a 

certain level of pricing.”); CX 2528 (Pais, Dep. at 252-253) (if Sigma raises multipliers 

and McWane does not, Sigma “can sell some product, some volume at the higher prices, 

but [Sigma’s] volume will be lower”); RX-017 at 0001 (Sigma regional sales manager 

writing that a list price increase “would be a futile exercise unless everybody is on 

board”); CX 2535 (Bhutada, Dep. at 105-106) (project pricing is necessary to “meet 

competition for us to get that project”); RX-698 (McCutcheon, Dep. at 23) (“We start 

with the list price and then the published multiplier, but the project ends up selling at a 

price that we think we need to sell it to get the order.”); CX 2539 (McCutcheon, Dep. at 

23) (“Q. Is it your understanding, Mr. McCutcheon, that there are times when a 

distributor in a given region will say, “Hey, Sigma or Tyler is offering me this price. 

What are you guys at Star going to do?” Is that a common occurrence? A. Yes, sir.”); 

Tatman, Tr. 1022, in camera {( 

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670. 

671. 

672. 

673. 

674. 

; CX 2260 (Schumann Rep. at 25), in camera). 

6.3.2 Published Prices Are Transparent 

Published prices for Fittings are transparent. All major suppliers publish their list prices 

in price books or catalogues that are widely disseminated to all of their customers. 

Suppliers also post their list prices on their public websites. (Tatman, Tr. 255-256; 

Rybacki, Tr. 1097, 1099; Minamyer, Tr. 3137-3138; CX 2535 (Bhutada, Dep. at 100)). 

Any changes in published multipliers are also widely disseminated through letters that are 

transmitted via fax or email to Distributors, either on an individual state or region basis, 

or, in the case of the large national Distributors, via “multiplier maps” that identify local 

multipliers for each state across the United States. (Tatman, Tr. 262-263, 305, 322; CX 

2440; RX-410 (sample McWane multiplier map); Rybacki, Tr. 1100 (changes in 

multipliers are communicated by letters to customers); McCutcheon, Tr. 2270 (Star 

communicates its published multipliers to its customers through letters)). 

Fittings suppliers routinely obtain and read copies of their competitors’ list price and 

multiplier announcements. Suppliers commonly receive a copy of their competitors’ 

price announcements from their Distributor customers. (CX 2450 at 002 (HD supply 

faxing McWane price increase letter to Sigma within one day); Tatman, Tr. 306-307 

(Tatman receives competitors’ letters from his customers “sometimes ... in a day, 

[s]ometimes it’s two weeks,” and assumes that McWane’s competitors receive his letters 

from customers); Rybacki, Tr. 3487 (Sigma obtains and reads competitor price 

announcements); CX 2526 (Minamyer, Dep. at 125-126) (Star would try to get copies of 

its competitors’ letters). Copies of each supplier’s price change announcements are 

found in the other suppliers’ files. (See infra ¶¶ 685.a-685.cc)). 

In 2008, Star regularly sent its price announcements directly to Craig Schapiro of Sigma, 

who was on Star’s price announcement mailing list and received Star price multiplier 

letters addressed “To Our Valued Customers.” (CX 0893 at 001; Minamyer, Tr. 3194­

3195; CX 2252 at 001). Upon receipt, Mr. Schapiro regularly circulated Star price 

announcements to Sigma’s sales team and to Sigma executives in charge of setting 

Sigma’s Fittings prices. (E.g., CX 1402 (October 22, 2007); CX 2252 (June 27, 2008: 

“Looks like STAR is sending their version of the [McWane] letters”); CX 1738 (June 1, 

2010)). 

Fittings suppliers consider their competitors’ price announcements when making their 

own pricing decisions. (Tatman, Tr. 287; CX 2483 (Tatman, IHT at 43-44) (Tatman 

considers the competitive price level when setting prices); Minamyer, Tr. 3148-3149 

(Star makes a conscious effort to gather and read its competitors’ pricing letters, and 

bases its sales strategy in part on what it reads in those letters); CX 2526 (Minamyer, 

Dep. at 126-127) (Star would review and discuss competitors’ letters when considering 

Star’s own pricing decisions); Rybacki, Tr. 1108-1109 (Sigma pays attention to its 

competitors’ pricing “every day,” including by obtaining, reviewing and considering 

competitors’ pricing letters); Rybacki, Tr. 3559 (“I use all the information I get my hands 

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on.”); CX 2531 (Rybacki, Dep. 205-206) (he would read competitor letters carefully, 

looking for information about competitors’ intentions); CX 1018 at 001 (Pais explaining 

that McWane “publishes” its multipliers by way of customer letters)). 

675.	 Mr. Rybacki, who set Sigma’s Fittings prices, considered competitors’ price letters to be 

reliable. CX 2531 (Rybacki, Dep. at 56-57) (“For the most part I thought they were 

trustworthy.”); Rybacki, Tr. 1109 (Rybacki would review competitor letters and try to 

determine if they were serious or not, and found them to be serious for the most part)). 

676.	 The Fittings market’s transparent published pricing structure is conducive to pricing 

stability and creates an environment that is conducive to collusion. (CX 2260-A 

(Schumann Rep. at 36-37)). 

677.	 For example, in an October 17, 2008 email addressing pricing in a different product area 

(municipal construction castings), Mr. Pais explained that introducing “a PRICE 

LIST/Discount culture to the market [tends] to stabilize, standardize, and improve the 

overall market pricing and margins.” (CX 1147 at 001). 

678.	 Similarly, on January 18, 2010, Mr. Pais explained to Sigma’s top managers that Sigma 

“had long hoped to streamline the FAB pricing along the lines of our success in Fittings 

where a List/Multiplier format helps to minimize the price fluctuations and it also makes 

price revisions (increases) easier.” (CX 1104 at 001). 

6.3.3	 Project Prices Are Not Transparent 

679.	 Project Pricing, on the other hand, is not published and is therefore less transparent than 

the published list prices and multipliers. (Tatman, Tr. 927 (describing responding to 

Project Pricing as “shooting in the dark”); see also Minamyer, Tr. 3145 (“Q. If Star was 

offering a project price for a particular project, would you want your competitors to know 

what project price you were offering? A. No, sir. Q. Why not? A. For the fear that they 

would price lower than us to try to take the project.”); RX-698 (McCutcheon, Dep. at 57 

(“The stated procedure is to get hard documentation [of project pricing by a competitor]. 

It almost never happens. It’s verbal.”); Tatman, Tr. 267-268 (explaining that with project 

pricing McWane “essentially los[es]. . . visibility to where is the true competitive price 

level.”); CX 1439 at 002 (Pais describing plant work/project pricing: “THIS PRACTICE 

WREAKED HAVOC”)). 

680.	 For a specific project, Distributors commonly seek bids from multiple Fittings suppliers, 

and the suppliers can lose “visibility” as to the true competitive price level. (Tatman, Tr. 

265-268 (“[W]hat we’ve essentially lost in this environment is visibility to where is the 

true competitive price level.”); Tatman, Tr. 927 (describing McWane as “shooting [in] 

the dark” on Fittings pricing); (RX-650 (Morrison, Dep. at 68) (“Q. Okay. When you bid 

out a project, do you get multiple, do you get, do you actively seek different quotes from 

the different suppliers of waterworks fittings? A. Typically.”); RX-703 (Coryn, Dep. at 

36) (describing the Distributor practice of requesting quotations from suppliers)). 

681.	 McWane prefers to have price transparency in the Fittings market in order to know what 

the true competitive prices are. (Tatman, Tr. 332 (“[W]e would like to have greater 

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visibility into where the true competitive market level is. That’s self-serving for us.”); 

Tatman, Tr. 376 (the terms “transparency” and “visibility” are interchangeable)). 

682.	 In 2007 and 2008, McWane’s sales force was about half the size of each of Sigma’s and 

Star’s sales forces, making it even harder for McWane to obtain visibility or otherwise 

determine the Project Prices being offered by its competitors. (Tatman, Tr. 281-283). 

683.	 In 2008, McWane tracked competitive information through narrative market intelligence 

reports from its sales force that were submitted to, and reviewed by, Mr. Jansen and Mr. 

Tatman. (Tatman, Tr. 333-334, 915-916, 919-920 (describing market intelligence reports 

as being based solely on weekly narratives from each of McWane’s eight to ten sales 

representatives); RX-598 (competitive feedback report); CX 2477 (Jansen, Dep. at 37-39) 

(describing review of weekly highlight reports from sales personnel and the preparation 

of the competitive feedback report at Mr. Jansen’s direction)). 

6.3.4	 Fittings Suppliers Routinely Receive Each Other’s Pricing Letters 

684.	 Fittings suppliers routinely receive each other’s pricing letters soon after they are issued. 

(Infra ¶ 685). 

685.	 Examples of list price and multiplier announcements issued and/or received by the 

suppliers during the relevant time period include the following: 

a.	 On or about October 5, 2007, McWane issued a letter to its customers announcing a 

Fittings multiplier increase of one or two multiplier points, effective November 5, 

2007, and stating that “it is our intention to address future price actions with 

adjustments to invoice multiplier levels rather than by publishing List Price changes.” 

(RX-401). Star had received a copy of this letter by October 10, 2007. (CX 0833). 

b.	 On or about October 11, 2007, Star announced that it would increase Fittings 

multipliers by 2 multiplier points, effective November 5, 2007. (CX 0837; RX-402). 

This letter was faxed to Craig Schapiro of Sigma on October 17, 2007. (CX 1402 at 

002). 

c.	 On or about October 23, 2007, Sigma issued a letter to its customers announcing a 

price increase of two to three multiplier points on all Fittings, effective November 5, 

2007, and a list price increase to be effective January 2, 2008 of a minimum of 6%. 

(RX-015). McWane obtained possession of this letter. (CX 2457 (October 19 version 

of letter); RX-015 (same letter dated October 23 and edited to include accessories)). 

Star had received Sigma’s October 23, 2008 letter by October 26, 2007. (CX 0840 at 

001). 

d.	 On or about November 30, 2007, Star issued a letter to its customers announcing that 

it would be publishing new Fittings list prices to be effective January 1, 2008. (CX 

0627 at 013; RX-406). As of December 12, 2007, Sigma was aware that Star had 

announced a new price book (CX 1528 at 001). 

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e. On or about December 20, 2007, Sigma issued a letter to its customers delaying the 

implementation of its recently announced new Fittings list prices with respect to 

Fittings. (CX 0627 at 012). 

f. On or about December 22, 2007, Star announced that it would be postponing the 

effective date of its previously announced Fittings list price increase until February 4, 

2008. (CX 1702). 

g. On or about January 11, 2008, McWane issued a letter to its customers announcing 

that on January 18, 2008 it would announce new Fittings price multipliers, to be 

effective February 18, 2008, while retaining existing list prices. Blended Fittings 

multipliers would increase by 10%-12%, Domestic Fittings would increase by 3%­

5%, and McWane’s intention going forward would be to sell all products only off the 

newly published multipliers. (CX 2172 at 002). Star and Sigma each had received a 

copy of McWane’s letter by January 14, 2008. (CX 0038 at 001; CX 1291; CX 

1114). 

h. On or about January 18, 2008, McWane issued letters to its customers specifying the 

Fittings multiplier increases first announced in its January 11, 2008 letter, effective 

February 18, 2008. (CX 1672; RX-608). By January 18, 2008, Star’s National Sales 

Manager Mr. Minamyer had received copies of McWane’s national price multiplier 

maps for these increases. (CX 0035). As of January 22, 2008, Mr. Minamyer was 

alerting his sales force that the McWane letters were “hitting the streets” (CX 0752). 

Sigma obtained this letter (CX 0896), and by January 24, 2008, Victor Pais was 

aware of McWane’s “NEW multipliers” (CX 1145 at 001). 

i. On or about January 29, 2008, Sigma issued a letter to its customers rescinding its 

previously announced new Fittings list prices and “follow[ing] suit” after McWane’s 

multiplier increase, effective February 25, 2008. The letter further stated that “[i]t is 

our intent to raise prices in 2008 . . ..” (CX 1189; RX-610 (Letter appears in 

McWane’s files)). 

j. On or about January 31, 2008, Star informed its customers that it would be following 

McWane’s announced Fittings multiplier increases effective February 18, 2008, and 

that there would be “NO UTILITY PROJECT PRICING NATION WIDE.” (CX 

1566). 

k. On or about February 1, 2008, Sigma issued letters to its customers announcing 

region-specific multipliers pursuant to its January 29 letter. (CX 1401 at 002; CX 

0848 at 002). Star received copies of those letters as early as February 7, 2008. (CX 

0848 at 001). 

l. On or about February 6, 2008, Star issued letters to its customers specifying 

multiplier increases that it would implement effective February 18, 2008. (CX 2336). 

On February 7, 2008, Craig Schapiro, of Sigma, received such a letter from Star (CX 

0893). 

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m. On or about April 25, 2008, Sigma announced to its customers that it would be 

raising Fittings multipliers by up to ten multiplier points effective May 19, 2008. 

(CX 1858). Star obtained the announcement on the same day (CX 0862), while 

McWane appeared to possess an earlier draft of the announcement (CX 0176). 

n. On or about May 7, 2008, McWane issued a letter to its customers stating that it 

expected to issue a further pricing policy announcement by the end of May. McWane 

anticipated that multipliers would increase in the range of 6% to 16%. (CX 0138). 

Star received a copy of the letter the same day. (CX 0863 at 001). Sigma had 

received a copy of McWane’s May 7, 2008 letter by May 8, 2008. (CX 1128). 

o. On or about May 7, 2008, Star issued letters to its customers announcing an increase 

in Fittings multipliers effective May 19, 2008, (CX 0816; CX 0817; CX 0818; CX 

0819; CX 0820; CX 0821; CX 0822; CX 0823), and on May 12, 2008 Star put this 

increase on hold as a result of McWane’s May 7, 2008 letter. (RX-060; CX 0527; 

McCutcheon, Tr. 2425). McWane had received a copy of the May 7, 2008 letter by 

May 13, 2008. (CX 0431). 

p. On or about June 17, 2008, McWane issued a letter to its customers announcing an 

increase in Fittings multipliers effective July 14, 2008, and stating that the weighted 

average increase on blended Fittings and accessories would be “approximately 8%,” 

while the increase on Domestic Fittings would be “significantly less.” (CX 1576; CX 

1191). Star came into possession of this letter (CX 0047 (letter in Star’s files)). 

q. On or about June 27, 2008, Star issued letters to its customers specifying multiplier 

increases that it would implement effective July 14, 2008. (CX 1668; CX 2255; CX 

2430; CX 2431; CX 2432; CX 2433). Sigma had received a copy of this letter by 

June 27, 2008 (CX 2252). McWane also obtained a copy (CX 2456 (letter in 

McWane’s files)). 

r. On or about July 7, 2008, Sigma issued letters to its customers specifying Fittings 

price multiplier increases that it would implement effective July 14, 2008. (CX 

2253). By July 8, Star had received a copy of Sigma’s July 7 multiplier increase 

letter. (CX 0865). 

s. On or about January 19, 2009, Sigma issued letters to its customers announcing 

Fittings multiplier increases effective February 9, 2009. (CX 0878 at 002). Star was 

in possession of this letter by January 20, 2009 (CX 0878). 

t. On or about January 23, 2009, Star issued letters to its customers announcing Fittings 

multiplier increases effective February 9, 2009. (CX 2452 at 002). As of January 26, 

2009, Sigma had received this announcement. (CX 2452 at 001). 

u. On or about April 13, 2009, McWane issued a letter to its customers announcing that, 

effective May 1, 2009, it would begin using a new price list with higher prices for 

small diameter Fittings and lower prices for medium and large diameter Fittings. (CX 

0569; CX 1669). 

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v.	 On or about April 22, 2009, Star issued an email to its customers announcing that it 

would be updating its Fittings price list effective May 19, 2009. (CX 2349 (letter in 

McWane’s files)). 

w.	 On or about April 27, 2009, Sigma issued a letter to its customers announcing that it 

planned to continue to use its existing price list for Fittings (CX 0212 at 004; CX 

1454). McWane obtained that letter on April 27, 2009 (CX 0575), and Star obtained 

the letter by April 29, 2009. (CX 0889). 

x.	 On or about May 4, 2009, Star issued letters to its customers specifying the Fittings 

price multiplier changes that it would implement to follow McWane (except with 

respect to PA), effective May 12, 2009. (RX-620 (letter as produced from McWane’s 

files)). 

y.	 On or about May 11, 2009, Sigma sent a letter to its customers announcing adoption 

by Sigma of McWane’s new Fittings list prices and announcing new Fittings price 

multipliers, effective May 12, 2009. (CX 0965; CX 1060). 

z.	 On or about June 10, 2010, Sigma sent a letter to its customers announcing that “[t]he 

multipliers for non-Domestic Fittings will be revised.” (CX 2453 at 002). McWane 

had received this letter by June 11, 2010. (CX 2438 at 001). 

aa. On or about June 17, 2010, McWane sent letters to its customers announcing that, 

effective July 1, 2010, it would raise non-Domestic Fittings multipliers in 45 of 50 

States. (CX 2440). Sigma had received this letter by June 18, 2010. (CX 2450). 

bb. On or about June 18, 2010, Star sent letters to its customers announcing multiplier 

price increases matching McWane’s. (CX 1406 at 001). Sigma received this letter 

directly from Star on June 18, 2010. (CX 1406 at 001). McWane had received this 

letter by June 19, 2010. (CX 2441 at 001). 

cc. On or about June 24, 2010, Sigma sent letters to its customers announcing multiplier 

price increases matching Star’s and McWane’s. (CX 1396 at 002). 

6.3.5	 Fittings Suppliers Use Pricing Letters to Communicate with 

Competitors 

686.	 Suppliers know that their competitors receive their price announcement letters. (Tatman, 

Tr. 377 (“I believe when we put out a letter, they’re going to grab it”); Tatman, Tr. 1067 

(“My competitors are going to pick up this letter through normal competitive channels”); 

CX 2531 (Rybacki, Dep. at 216-217) (following issuance of price increase 

announcement, “everybody in the market would understand that Sigma needs and would 

like a price increase”); supra ¶ 673 (Star regularly sent its price announcements directly 

to Craig Schapiro of Sigma). 

687.	 Suppliers include “messages” or “signals” intended for “competitors” or “the market” in 

their customer letters. (Tatman, Tr. 1065-1067 (so-called “head fake” message in 

January 11, 2008 customer letter was directed at competitors, not customers); CX 2531 

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(Rybacki, Dep. at 208) (“Q. Has [Mr. Pais] ever suggested that you send a letter that 

would be a heads-up to your customers and to the market? A. Two or three times a 

day.”); (Pais, Tr. 2038 (agreeing that June 2010 pricing letter to customers was also 

directed at competitors); CX 2525 (Minamyer, IHT at 77) (when reading competitors’ 

pricing letters, the suppliers consider whether the letters contained signals to them)). 

688.	 For example, Mr. Rybacki reads McWane and Star letters carefully to determine their 

intentions, and he expects his competitors to do the same with Sigma letters. (CX 2531 

(Rybacki, Dep. at 205-206)). 

689.	 This practice of using letters ostensibly addressed to customers to communicate with their 

competitors began in at least 2008 and continued into at least 2009 and 2010. (See infra 

§§ 6.3.5.1, 6.3.5.2, 6.3.5.3). 

6.3.5.1	 Fittings Suppliers Used Customer Pricing Letters to Signal 

Messages to Their Competitors in 2008 

690.	 Fittings suppliers used customer pricing letters to signal messages to their competitors in 

2008. For example, in Mr. Tatman’s presentation regarding a proposed January 2008 

price announcement, he described a “Desired Message to the Market & Competitors” 

(CX 0627 at 004), and included two different forms of draft customer letter by which that 

“message” might be delivered. (CX 0627 at 006, 007; see infra § 7.2.1). 

691.	 Similarly on April 18, 2008, Mr. Pais wrote that Sigma’s April 2008 price increase letter 

should “include one line to signal SIGMA’s strong commitment to ‘clean up’ our 

pricing” and that “WE WILL HAVE TO INFLUENCE [MCWANE] THRU OUR 

SINCERITY AND CLARITY OF OUR PLANS AND ACTIONS!” (CX 1134 at 001­

002). 

692.	 And again in July 2008, Steve Goodwyn, a member of Sigma’s sales team, sent an email 

to Sigma’s management team regarding a proposed letter to customers, which he referred 

to as a letter to the “industry”: “We plan to send a letter to the industry stating we intend 

to follow the current published multiplier for all fittings especially on fittings 30” and 

above. The intent is to send the message to Star and others to do the same. If we are able 

to increase our average multiplier for 30”+ just a few points, it will prove to increase the 

bottom line significantly.” (CX 1151 at 001; RX-690 (Rybacki, Dep. at 207-208) (noting 

that Mr. Goodwyn drafted the letter after a discussion with Mr. Pais)). 

693.	 In an email to HD Supply dated January 30, 2008, which McWane Senior officials 

receive a copy of, Star communicates that “Star is raising or matching all fitting numbers 

to match Tyler effective Feb 18th . . . NO UTILITY PROJECT PRICING NATION 

WIDE.” (CX 0178 (McWane’s copy of the Star email to HD Supply)). 

6.3.5.2	 Fittings Suppliers Used Customer Pricing Letters to Signal 

Messages to Their Competitors in 2009 

694.	 Fittings suppliers used customer pricing letters to signal messages to their competitors in 

2009. For example, in discussing Sigma’s response to a McWane April 13, 2009 pricing 

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announcement, Greg Fox of Sigma sent an email to his colleagues Craig Schapiro and 

Mr. Pais that “it’s imperative for Sigma to circulate (sooner rather than later) our letter 

and price list on MJ Accessories to the marketplace. [McWane] may receive Sigma’s 

intentions from the letter and incorporate into their plans.” (CX 0989 at 002). 

695.	 Mr. Tatman later tried to interpret the message to McWane contained within Sigma’s 

April 2009 pricing letter: “I may be reading too much into Larry’s [Rybacki] words but 

his message to [McWane] may be that I’ll control my pricing and I want you [to] pull 

back your list price restructuring?????” (CX 0651 at 001; Tatman, Tr. 599; CX 0171 at 

001 (describing one of the goals of McWane’s price restructuring as putting a list price 

structure in place that is “easily understood and therefore easily followed by our 

competitors . . . The code is easy to break.”). 

6.3.5.3	 Fittings Suppliers Used Customer Pricing Letters to Signal 

Messages to Their Competitors in 2010 

696.	 Fittings suppliers used customer pricing letters to signal messages to their competitors in 

2010. For example, in a June 2010 email within Sigma, Mr. Pais, described a pricing 

letter to customers as “largely a ‘heads up’ to the customers and the market about our 

intention to follow suit when Star or others take a definitive action on price increases.” 

(CX 1413; see also infra § 7.10 (describing events surrounding “heads-up” letter in more 

detail)). 

697.	 In response to Sigma’s June 2010 “heads up” letter, Mr. Tatman considered one of 

McWane’s options to be to “[s]end out communication supporting the need for a price 

increase, wait for Sigma or Star to publish new multipliers and then follow.” This was a 

reference to sending out a McWane customer letter “to let Sigma and Star know that 

McWane supports the need for a price increase.” (CX 2442-A at 001; Tatman, Tr. 311­

312; see also infra § 7.10). 

698.	 After receiving the June 2010 “heads up” announcement from Sigma described above, 

Mr. Tatman wrote an email considering what McWane’s “response” to this 

“communication from Star and Sigma” should be, and stating that “I believe Sigma is 

waiting for either a supporting communication from us or an announcement on specific 

price actions.” (CX 2442-A at 001; Tatman, Tr. 311-312, 316-319; see also infra § 7.10). 

6.4	 Fittings Market Social Structure 

699.	 The three main Fittings suppliers know each other well, and have a history of close 

relationships and extensive communications. (Infra ¶¶ 700-827). 

6.4.1 The Fittings Suppliers Often Met and Spoke with Each Other 

700.	 From 2007 through 2011, senior executives of McWane, Sigma, and Star had regular 

contact with each other by telephone, by email, or at in-person meetings. (Infra ¶¶ 701­

827). 

99 
 

 

6.4.1.1 History of Competitor Communications 

PUBLIC RECORD

701.	 The top McWane, Sigma and Star executives have known each other for many years, and 

over that time have developed a practice of regularly discussing, coordinating, and 

debating events in the Fittings market. (Infra ¶¶ 702-712). 

702.	 Mr. McCutcheon and Mr. Pais have a history of price-related communications dating 

back to the late 1990s and continuing throughout the 2000s and up to at least 2009. 

(McCutcheon, Tr. 2359-23623

) (explaining that he handled calls with Mr. Pais because 

Mr. Pais used to berate Star’s President, Mr. Bhutada); Pais, Tr. 1960 (admitting to 

communications “from time to time” with Mr. McCutcheon and on “occasion” with Mr. 

Bhutada)). Mr. Pais typically called Mr. McCutcheon to complain about the way Star 

was running its business, and in particular, Star’s pricing behavior. (McCutcheon, Tr. 

2362, 2367 (“Q. Did [Pais] complain about your behavior that was price-driven? A. Yes, 

sir.”)). 

703.	 Specifically, Mr. Pais complained to Mr. McCutcheon on more than one occasion that 

Star was offering discounts that were bringing down prices. (McCutcheon, Tr. 23674). 

As Mr. McCutcheon testified: 

Generally, it was a -- he would call, or he would stop me at a trade 

show and tell me how bad Star Pipe was. And how we’re 

destroying the market and we don’t know how to run our company 

and we’re just bad. And Ramesh is bad, and it was generally a 

very condescending, beatdown conversation. That was his -- that 

was the reason, I guess, he wanted to talk to us -- talk to me. 

(CX 2538 (McCutcheon, IHT (Vol. 2) at 226-227); see also CX 2538 (McCutcheon, IHT 

(Vol. 2) at 229-230 (recounting a breakfast meeting with Mr. Pais at which Mr. Pais 

claimed that Star was “doing a poor job, that Star Pipe is destroying the market, and we 

were bad and that was the general purpose of the meeting”)). 

704.	 When Mr. McCutcheon and Mr. Pais spoke, Mr. Pais typically suggested that he had 

close relations with McWane, and that McWane was on board with whatever plan Mr. 

Pais was proposing. As Mr. McCutcheon further testified: 

[T]hat was a normal comment of [Mr. Pais’s], that he implied that 

if we [Sigma and Star] do this, he’ll get, you know, he’ll talk to his 

3

 Mr. McCutcheon’s trial testimony regarding Mr. Pais’ out of court statement is cited only to 

prove that Mr. Pais called Star to complain, and not cited to prove the truth of the complaints in 

the referenced statement. (See McCutcheon, Tr. 2360). 

4

 At trial, the cited testimony was admitted for the truth of the matter asserted in Mr. Pais’s out of 

court statements in furtherance of the DIFRA information exchange under the co-conspirator 

hearsay exception. (See McCutcheon, Tr. 2363-2366). The cited testimony regarding the out of 

court statements of Mr. Pais is also cited to prove the fact of the statements. 

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friends at McWane. He was considered to be very friendly with 

the people at McWane. I’m not sure who the people were, 

probably Ruffner Page, but he was working really hard in several 

different levels to try to be considered part of the Birmingham 

gang. 

(CX 2538 (McCutcheon, IHT (Vol. 2) at 229)). 

705.	 Mr. McCutcheon was motivated to meet with Mr. Pais because he provided Mr. 

McCutcheon with market share estimates of Fittings tonnage sold by Sigma, Star and 

McWane. (McCutcheon, Tr. 2356-2358; CX 0046; CX 2538 (McCutcheon, IHT (Vol. 2) 

at 266) (“[H]e would tell me all kinds of things I didn’t know.”); RX-697 (McCutcheon, 

IHT (Vol. 2) at 277-278 (describing July 13, 2007 meeting with Mr. Pais where Mr. Pais 

shared market share estimates of Sigma, Star and McWane)). Based on the information 

that Mr. Pais provided him, Mr. McCutcheon made estimates of the relative sales of 

fittings of McWane, Sigma, and Star. (CX 2538 (McCutcheon, IHT (Vol. 2) at 277-278); 

see CX 0532 at 002). 

706.	 Mr. Pais admitted to price-related conversations with Star, although he testified that it 

was Star that complained about Sigma (rather than Sigma complaining about Star), that 

Sigma was “spoiling the market,” “not being responsible,” and using “aggressive tactics.” 

(Pais, Tr. 1961-1963 (describing Star’s criticisms of Sigma in conversations “[t]hree to 

four years back”)). 

707.	 At the end of 2008, Mr. Pais contacted Mr. McCutcheon of Star regarding the formation 

of a lobbying organization called WASMA, whose purpose was to effectuate changes in 

ARRA. (Pais, Tr. 1728). 

708. Mr. McCutcheon also has a history of price-related communications with Mr. Rybacki. 

On more than one occasion, Mr. McCutcheon has communicated with Mr. Rybacki prior 

to the announcement of list price changes regarding “mostly list price changes, timing on 

list price changes and things like that.” (CX 2525 (Minamyer, IHT at 56-58). 

709.	 Mr. McCutcheon told Mr. Minamyer that he talked to Mr. Rybacki on at least one 

occasion while Mr. Minamyer was the National Sales Manager at Star. During that 

conversation, Mr. McCutcheon told Mr. Minamyer that he had convinced Mr. Rybacki to 

announce a list price increase. (Minamyer, Tr. 3234-3237). 

710.	 {

 (Rybacki, Tr. 3608-3609, in camera). 

711.	 In late 2006, Mr. McCutcheon met with Mr. Page and Mr. Green of McWane. Mr. Page 

and Mr. Green told Mr. McCutcheon that it had been a mistake for McWane to allow Star 

to expand its business into the Fittings market. (McCutcheon, Tr. 2351-2356; CX 2538 

(McCutcheon, IHT (Vol. 2) at 254-255)). 

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712. 

frequent communications relating to competitive dynamics and pricing practices in the 

fittings market dating back to 2003. (Infra § 6.4.2).

Mr. Pais and Mr. Page have a close and “mutually trusting” relationship, and a history of 

713.

6.4.1.2
 Telephone Contacts 

1625-A, in camera; CX 1626-A, in camera; CX-1860-A, in camera). 

(CX 1618-A, in camera; CX 1621-A, in camera; CX 1624-A, in camera; CX714.	 {

 (See infra ¶ 715; CX 1618-A, in camera; CX 1621-A, in 

1860-A, in camera)).
 

715. { 

camera; CX 1624-A, in camera; CX-1625-A, in camera; CX 1626-A, in camera; CXCalls Between Individuals 

No. of 

Calls 

Total Average 

Minutes Time (min)
 

{
 

{ 

}

}
 

{
 

{ 

}

}
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

{ }
 

(CX 1618-A, in camera; CX 1621-A, in camera; CX 1624-A, in camera; CX-1625-A, in 

camera; CX 1626-A, in camera; CX-1860-A, in camera; see Attachment A for specific 

page citations). 

716.	 Mr. Rybacki’s responsibilities in 2008 and 2009 did not require him to communicate with 

anyone at Star or McWane. (Rybacki, Tr. 1087-1089). 

102 
 

PUBLIC RECORD

717.	 Mr. Rybacki testified at his deposition that he only spoke to Mr. Tatman once or twice in 

his entire career: “I think I’ve talked to Rick [Tatman] on the phone maybe once, once or 

twice maximum my whole career. . . . I think it was when David Green left, and I think 

Joe might have said that was ‘06 or ‘07, ‘07, so it was probably when he took the job to 

maybe say hi and welcome him to the job. That might have been the only time. I know I 

only talked to him once or twice max.” (CX 2531 (Rybacki, Dep. at 190-191); Rybacki, 

Tr. 1088-1089 (repeating claim that Mr. Rybacki had only “probably” spoken with Mr. 

Tatman twice, with the first occasion being to welcome Mr. Tatman to the waterworks 

industry after Mr. Tatman replaced David Green at McWane). Mr. Tatman gave similar 

testimony, stating that “I’ve talked to Mr. Rybacki two, three, a couple of times. I don’t 

know when and I don’t know what the topics were.” (Tatman Tr. 364). 

718.	 {

 (Rybacki, Tr. 3610, 

3617, in camera, {
 

}
 

719.	 Mr. Rybacki testified that there was “[n]obody” at Star with whom he communicated 

regularly. (CX 2531 (Rybacki, Dep. at 192)). (“How about at Star, are there people at 

Star that you communicate with regularly? A. Nobody.”)). Mr. Rybacki does not have a 

social relationship with Mr. McCutcheon. (Rybacki, Tr. 1088). 

720.	 Mr. Rybacki testified that over the years he would have occasional calls with Mr. 

McCutcheon or { } relating to Sigma wanting to acquire Star, or Star 

wanting to acquire Sigma. (Rybacki, Tr. 1087-1088, 3609, in camera). 

721.	 Mr. Rybacki described the frequency of his past contacts with Mr. McCutcheon as 

“relatively infrequently, but, you know, once in a great while.” (CX 2531 (Rybacki, Dep. 

at 192-193)). 

722.	 Mr. McCutcheon testified that he spoke to Mr. Rybacki three to four times per year in the 

2008-2009 timeframe. (McCutcheon, Tr. 2379; CX 2539 (McCutcheon, Dep. at 190); 

CX 2538 (McCutcheon, IHT (Vol. 2) at 221) (“I would speak to Tom Brakefield once a 

year at a trade show, we would say hello. . . . I would speak to Victor historically one to 

three times a year. And I would speak to Larry Rybacki two to four times a year”); CX 

2538 (McCutcheon, IHT (Vol. 2) at 235-237 (McCutcheon would speak with Rybacki 

“[p]robably two to four times a year,” and they “would talk about how bad the market is, 

how bad the economy is, not price specifically, but we would talk about, in general, how 

bad it was, or how good it was”)). 

6.4.1.3 Specific Contacts Reflected in Telephone Records 

723.	 Telephone records reflect numerous specific communications between executives at 

Sigma, McWane, and/or Star. (See, e.g., infra ¶¶ 724-786). 

724.	 {

 (CX 1621-A at 126, in camera; 

Rybacki, Tr. 3606-3607, in camera; see also infra ¶ 884 (describing context of call)). 

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725. {

 (CX 1621-A at 127, in camera; 

Rybacki, Tr. 3606, in camera; see also infra ¶ 884 (describing context of call)). 

726. {

 (CX 1621-A at 128, in camera; Rybacki, 

Tr. 3608-3609, in camera; see also infra ¶ 884 (describing context of call)). 

727. {

 (CX 1621-A at 129, in camera; Rybacki, 

Tr. 3611-3612, in camera; see also infra ¶ 884 (describing context of call)). 

728. 

729. {

 (CX 1621-A at 130, in camera; 

Rybacki, Tr. 3612-3613, in camera; see also infra ¶ 884 (describing context of call)). 

730. {

 (CX 1621-A at 130, in camera; 

Rybacki, Tr. 3612-3613, in camera; see also infra ¶ 884 (describing context of call)). 

731. {

 (CX 1621-A at 118, in camera; 

Rybacki, Tr. 3613-3614, in camera; see also infra ¶ 884 (describing context of call)). 

732.	 {

 (CX 1621-A at 118, in camera; 

733. 

734. {

 (CX 1621-A at 123, in camera; 

McCutcheon, Tr. 2473, in camera; Rybacki, Tr. 3614-3616, in camera; see also infra 

735. 

736. { 

{

 (CX 1621-A at 130, in camera; Rybacki, 

Tr. 3612, in camera; see also infra ¶ 884 (describing context of call)). 

Rybacki, Tr. 3613-3614, in camera; see also infra ¶ 884 (describing context of call)). 

{

 (CX 1621-A at 119, in camera; 

Rybacki, Tr. 3614, in camera; see also infra ¶ 884 (describing context of call)). 

¶ 894 (describing context of call)). 

{

 (CX 1621-A at 124, in camera; Rybacki, 

Tr. 3617, in camera; see also infra ¶ 895 (describing context of call)). 

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 (CX 1621-A at 124, in 

camera; McCutcheon, Tr. 2474, in camera; Rybacki, Tr. 3616-3618, in camera; see also 

infra ¶ 894 (describing context of calls)). 

737.	 {

 (CX 1621-A at 125, in camera; 

Rybacki, Tr. 3622-3623, in camera; see also infra ¶ 895 (describing context of call)). 

738.	 {

 (CX 1621-A at 112, in camera; 

McCutcheon, Tr. 2476, in camera; see also infra ¶ 894 (describing context of call)). 

739.	 {

 (CX 1621-A at 113, in camera; 

740.	 {

 (CX 1621-A at 113, in camera; 

Tatman, Tr. 367-368; Rybacki, Tr. 3626, in camera; see also infra ¶ 923 (describing 

context of call)). 

741.	 {

 (CX 1621-A at 114, in camera; 

Tatman, Tr. 369-370; Rybacki, Tr. 3627, in camera; see also infra ¶ 923 (describing 

context of call)). 

742.	 {

 (CX 1621-A at 115, in camera; 

Tatman, Tr. 370, in camera; Rybacki, Tr. 3627-3628, in camera; see also infra ¶ 923 

743. 

Tatman, Tr. 367; Rybacki, Tr. 3624-3626, in camera; see also infra ¶ 923 (describing 

context of call)). 

(describing context of call)). 

{

Tr. 3628, in camera). 

744.	 {

Rybacki, Tr. 3628-3629, in camera). 

745.	 {

 (CX 1621-A at 116, in camera; Rybacki, 

(CX 1621-A at 116, in camera; 

(CX 1621-A at 117, in camera; 

McCutcheon, Tr. 2475-2476, in camera; Rybacki, Tr. 3629, in camera; see also infra ¶ 

952 (describing context of call)). 

105 
746. 

747. {

{

 (CX 1621-A at 117, in camera; 

McCutcheon, Tr. 2475-2476, in camera; Rybacki, Tr. 3629-3630, in camera; see also 

infra ¶ 952 (describing context of call)). 

PUBLIC RECORD

(CX 1621-A at 108, in camera; Rybacki, 

Tr. 3631-3632, in camera; see also infra ¶ 952 (describing context of call)). 

748. {

 (CX 1621-A at 109, in camera; Rybacki, 

Tr. 3632, in camera; see also infra ¶ 1110 (describing context of call)). 

749. {

 (CX 1621-A at 109, in camera; 

Rybacki, Tr. 3632, in camera; see also infra ¶ 1110 (describing context of call)). 

750. {

 (CX 1621-A at 110, in camera; 

Rybacki, Tr. 3632, in camera; see also infra ¶ 1110 (describing context of call)). 

751. {

 (CX 1621-A at 107, in camera; 

Rybacki, Tr. 3633-3634, in camera; see also infra ¶ 1033 (describing context of call)). 

752. {

 (CX 1621-A at 096, in camera; 

Rybacki, Tr. 3634, in camera; see also infra ¶ 1034 (describing context of call)). 

753. {

 (CX 1621-A at 097, in camera; 

Rybacki, Tr. 3634, in camera). 

754. {

 (CX 1621-A at 097, in camera; 

Rybacki, Tr. 3635, in camera). 

755. 

756. {

 (CX 1621-A at 098, in camera; McCutcheon, Tr. 2469, in camera; 

Rybacki, Tr. 3635, in camera; see also infra ¶ 1040 (describing context of call)). 

{

 (CX 1621-A at 098, in camera; McCutcheon, Tr. 2469, in 

camera; Rybacki, Tr. 3635, in camera; see also infra ¶ 1040 (describing context of call)). 

106 
757. 

758. {

{

 (CX 1621-A at 099, in camera; 

McCutcheon, Tr. 2470, in camera; Rybacki, Tr. 3635, in camera; see also infra ¶ 1040 

(describing context of call)). 

PUBLIC RECORD

(CX 1621-A at 099, in camera; Rybacki, Tr. 3635-3636, in 

camera; Rybacki, Tr. 3610, 3617, in camera { 

}; see also infra ¶ 1162 (describing 

context of call)). 

759. {

 (CX 1621-A at 099, in camera; Rybacki, Tr. 

3635-3636, in camera; Rybacki, Tr. 3610, 3617, in camera { 

}; see also infra ¶ 1162 

(describing context of call)). 

760. {

 (CX 1621-A at 100, in camera; Rybacki, Tr. 

3636, in camera; see also infra ¶ 1162 (describing context of call)). 

761. {

 (CX 1621-A at 101, in camera; 

Rybacki, Tr. 3636, in camera; see also infra ¶ 1163 (describing context of call)). 

762. {

 (CX 1621-A at 102, in camera; 

Rybacki, Tr. 3636, in camera; see also infra ¶ 1163 (describing context of call)). 

763. {

 (CX 1621-A at 103, in camera; 

Rybacki, Tr. 3636-3638, in camera; see also infra ¶ 1163 (describing context of call)). 

764. { 

} (CX 1621-A at 104, in camera; Rybacki, 

Tr. 3638, in camera; Rybacki, Tr. 3610, 3617, in camera { 

}; see also infra ¶ 1164 

(describing context of call)). 

765. {

 (CX 1621-A at 105, in camera; Rybacki, Tr. 

3638, in camera; see also infra ¶ 1164 (describing context of call)). 

766. {

 (CX 1621-A at 090, in camera; 

Rybacki, Tr. 3638-3639, in camera). 

107 
 

 

PUBLIC RECORD

767.	 {

camera; Rybacki, Tr. 3639, in camera). 

768.	 {

3640, in camera). 

769.	 {

Rybacki, Tr. 3640, in camera). 

770.	 {

Tr. 3640-3641, in camera). 

771.	 {

 (CX 1621-A at 091, in 

(CX 1621-A at 092, in camera; Rybacki, Tr. 

(CX 1621-A at 092, in camera; 

(CX 1621-A at 092, in camera; Rybacki, 

(CX 1621-A at 093, in camera; McCutcheon, Tr. 2438, in 

camera; Rybacki, Tr. 3641, in camera; see also infra ¶ 1206 (describing context of 

calls)). 

772. {

(CX 1621-A at 094, in camera; McCutcheon, 

Tr. 2438-2439, in camera; Rybacki, Tr. 3641-3642, in camera; see also infra ¶ 1206 

(describing context of calls)). 

773.	 {

 (CX 1621-A at 095, in camera; 

Rybacki, Tr. 3642-3643, in camera; Rybacki, Tr. 3610, 3617, in camera { 

}; see also 

infra ¶ 1210 (describing context of call)). 

774.	 {

 (CX 1621-A at 084, in camera; McCutcheon, Tr. 

2439, in camera; Rybacki, Tr. 3643-3644, in camera; see also infra ¶ 1216 (describing 

context of calls)). 

775.	 {

 (CX 1621-A at 084, in camera; 

Rybacki, Tr. 3644, in camera; Rybacki, Tr. 3610, 3617, in camera { 

}; see also 

infra ¶ 1216 (describing context of call)). 

108 
 

PUBLIC RECORD

776. { 

} (CX 1621-A at 085, in camera; McCutcheon, Tr. 2440, in 

camera; Rybacki, Tr. 3644, in camera; see also infra ¶ 1221 (describing context of 

calls)). 

777. {

 (CX 1621-A at 086, in camera; 

McCutcheon, Tr. 2441, in camera; Rybacki, Tr. 3644-3645, in camera; see also infra ¶ 

1221 (describing context of call)). 

778. {

 (CX 1621-A at 086, in camera; 

McCutcheon, Tr. 2442, in camera; Rybacki, Tr. 3644-3645, in camera; see also infra 

¶ 1221 (describing context of call)). 

779.	 {

 (CX 1621-A at 087, in camera; Rybacki, 

Tr. 3645, in camera; Rybacki, Tr. 3610, 3617, in camera {
 

}. 

780.	 {

 (CX 1621-A at 087, in camera; Rybacki, Tr. 

3645, in camera; Rybacki, Tr. 3610, 3617, in camera {
 

}. 

781. {

 (CX 1621-A at 088, in camera; 

McCutcheon, Tr. 2447, in camera; Rybacki, Tr. 3645, in camera; see also infra ¶ 1246 

(describing context of call)). 

782. {

 (CX 1621-A at 089, in camera; McCutcheon, Tr. 2447­

2448, in camera; Rybacki, Tr. 3646, in camera; see also infra ¶ 1246 (describing context 

783. 

(CX 1621-A at 74, in camera; 

McCutcheon, Tr. 2471-2473, in camera; see also infra ¶ 1088 (describing context of 

call)). 

784.	 {

 (CX 1860-A at 004, 006, in camera

 Rybacki, Tr. 

3647-3648, in camera; see also infra ¶ 1504 (describing context of call)). 

of calls)). 

{

109 
PUBLIC RECORD

785.	 {

 (CX 1621-A at 034, in camera; McCutcheon, 

Tr. 2467, in camera; see also infra ¶ 1532 (describing context of call)). 

786.	 {

 (CX 1621-A at 035, in camera; McCutcheon, Tr. 2468, in camera; see 

also infra ¶ 1532 (describing context of calls)). 

6.4.1.4	 Specific Meetings and Calls Reflected in the Suppliers’ 

Documents 

787.	 Contemporaneous documents in the files of McWane, Sigma and Star reflect numerous 

specific communications between key executives of McWane, Sigma, and Star. (See, 

e.g., infra ¶¶ 788-806). 

788.	 On or about August 13, 2007, there was a meeting between Messrs. Pais and Page. (CX 

2030 at 001). 

789.	 On or about September 13, 2007, there was a meeting between Messrs. Pais and Page. 

(CX 2032 at 001). 

790.	 On or about December 3, 2007, there was a meeting between Messrs. Pais and Page. (CX 

2037; CX 2038; Pais, Tr. 1886-1887; CX 2528 (Pais, Dep. at 222-223)). 

791.	 On or about February 7, 2008, there was a telephone call between Messrs. Tatman and 

Rybacki. (CX 0179; CX 1142). 

792.	 On or about February 19, 2008, there was a meeting between Messrs. Pais and 

McCutcheon at the Nit Noi Thai restaurant in Houston. (CX 1122 (scheduling meeting); 

CX 1143 (same); McCutcheon, Tr. 2367-2372; CX 0041 (McCutcheon February 22, 

2008 email reporting on information regarding Electrosteel obtained from Pais)). 

793.	 On or about March 10, 1008, there was a telephone call between Messrs. Tatman and 

Rona. (CX 1124 at 002). 

794.	 On or about March 27, 2008, there was a DIFRA organizational meeting among 

McWane, Star, Sigma, U.S. Pipe executives. (CX 1486 at 001, 002 (agenda to 

attendees); CX 2272 (planning email to attendees); CX 1084 at 001 (planning email to 

attendees); Brakefield, Tr. 1270-1271 (listing attendees); CX 1080; CX 2496 (Brakefield, 

Dep. (Vol. 2) at 136-137)). 

795.	 On or about March 28, 2008, Messrs. Tatman and McCutcheon had a dinner meeting. 

(CX 2484 (Tatman, Dep. at 105)). 

110 
PUBLIC RECORD

796.	 On or about April 25, 2008, there was a DIFRA organizational call among McWane, 

Star, Sigma executives. (CX 0160 at 001-002). 

797.	 On or about May 7, 2008, there was a meeting between Messrs. Page and Pais. (CX 

1257). 

798.	 On or about June 12, 2008, there was a meeting between Messrs. Page and Pais at Mr. 

Page’s office. (CX 2482 (Page, Dep. 189-190); CX 2066 (email reflecting meeting). 

799.	 On or about August 22, 2008, there was a telephone call between Messrs. Tatman and 

Rona. (CX 1149). 

800.	 On or about March 17, 2009, there was a meeting between Messrs. Page and Pais. (CX 

2061; CX 1269). 

801.	 On or about April 2, 2009, there was a meeting between Messrs. Page and Pais. (CX 

2093). 

802.	 On or about April 28, 2009, there was a meeting between Messrs. Pais and McCullough. 

(CX 0728). 

803.	 On or about May 1, 2009, there was a meeting between Messrs. Pais, Rybacki and Page. 

(CX 0214 at 004, CX 0314 at 001, CX 2098; CX 0317 (describing meeting)). 

804.	 On or about May 20-21, 2009, there were meetings between Messrs. Page and Pais. (CX 

2100; see also CX 1271 (scheduling 2-day meeting); CX 1076 at 004 (describing meeting 

“last week”); CX 2101 (Mr. Page telling Mr. McCullough “I need to report to you about 

my meeting today when you have a chance”)). 

805.	 On or about December 14, 2009, there was a call between Messrs. Tatman and Rona. 

(CX 1801 at 001). 

806.	 On or about April 28, 2009, there was a phone call between Messrs. McCutcheon and 

Tatman. (CX 2538 (McCutcheon, IHT (Vol. 2) at 257-258); CX 1180 at 001). 

6.4.1.5 OEM Sales Between Suppliers 

807.	 Fittings suppliers have buy-sell relationships with each other that provide opportunities 

for communication regarding market conditions. (Infra ¶¶ 808-814). 

808.	 Suppliers on occasion speak with each other about purchasing individual Fittings from 

each other on a spot basis. (Tatman, Tr. 434). 

809.	 “Short sales” of Fittings occur when a supplier who has won a bid does not have all of the 

Fittings for the project in stock. In those cases, the bid-winning supplier will contact the 

other suppliers to source the fittings that it lacks. These short sales likely occur on a daily 

basis. (McCutcheon, Tr. 2268-2269; Rona, Tr. 1446 (Sigma will buy Fittings from 

McWane and Star usually to fill a gap in an order that Sigma is trying to fill); CX 2524 

111 
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(Box, Dep. at 68) (from time to time McWane purchases Fittings from Sigma’s 

inventory)). 

810.	 “Private label” Fittings are manufactured by one company and sold to another company 

that will supply those Fittings to customers. Private label Fittings are marked with the 

buying company’s name. (Rona, Tr. 1630). 

811.	 { 

} (Rybacki, Tr. 3646, in camera). 

812.	 McWane and Sigma have a long history of buying and selling products from one another. 

(Rona, Tr. 1626; RX-689 (Rona, Dep. at 22)). 

813.	 Star and McWane’s Tyler divisions purchase oddballs and fill-in Fittings from Sigma’s 

OEM business, while McWane’s Clow division uses Sigma as a regular supplier. (Rona, 

Tr. 1447-1448). 

814.	 In approximately 2006, McWane was sourcing greater amounts of Fittings from Sigma’s 

production facilities in China, in amounts of $13-14 million annually. (Rona, Tr. 1449­

1450). In approximately early 2007, McWane ceased these OEM purchases from Sigma. 

(Rona, Tr. 1450). 

6.4.1.6 Merger Discussions 

815.	 Fittings suppliers occasionally engage in merger discussions with each other that provide 

opportunities for communication regarding market conditions. (Infra ¶¶ 816-825). 

816.	 In 2008, McWane and Sigma discussed a potential merger of Sigma with McWane’s 

Tyler/Union Fittings business. The merger talks lasted for three or four months in 2008, 

and fell through because McWane was uncomfortable with Sigma’s debt and with 

Sigma’s request for 50-50 joint ownership of the merged entity. (Pais, Tr. 1864-1865; 

CX 1076 at 003). 

817.	 In meetings between Sigma and McWane on May 20 and 21 of 2009, Mr. Pais again 

raised the prospect of a transaction with Mr. Page, proposing that Sigma buy McWane’s 

Fittings business, to which Mr. Page responded, “not now.” (CX 1076 at 004; CX 2100; 

CX 1271; CX 2101). 

818.	 Sigma and Star discussed a potential merger between the two companies in 2009. (Pais, 

Tr. 1860-1862; CX 1076 at 002-003). 

819.	 On or about December 11, 2008, Star’s Mr. McCutcheon and Mr. Bhutada attended a 

meeting with Sigma’s Mr. Pais and Mr. Rybacki in Houston at which they began 

conversations about a potential Sigma-Star merger. (McCutcheon, Tr. 2376-2377; CX 

1111; see also Pais, Tr. 1729-1730 (Pais communicated with Mr. McCutcheon in late 

2008 and early 2009 regarding a possible merger between Sigma and Star)). 

112 
PUBLIC RECORD

820.	 On February 17, 2009, Mr. Pais and Mr. McCutcheon met to discuss ARRA “Buy 

American” issues, and Mr. Pais again initiated discussion of a potential merger between 

Sigma and Star. (CX 1076 at 002). Mr. Pais later reported to Frontenac in a May 26, 

2009 email that Mr. McCutcheon had agreed that the merger would make sense, but that 

the transaction would be difficult because of cultural and personal issues between the 

companies. (CX 1076 at 001-002 (Pais May 26, 2009 email to Florence); Pais, Tr. 1860­

1861). Mr. Pais expected Star to get back to him on the merger topic, but they did not 

contact him directly. (Pais, Tr. 1861-1862). 

821.	 In or about March 2009, Mr. Rybacki invited Star to “take a shot” at making a bid for 

Sigma, which resulted in an invitation from Star to Mr. Rybacki for a discussion in midMay 2009. Mr. Pais and Mr. Bhattacharji accepted this invitation. (CX 1076 at 001-003; 

Pais, Tr. 1861-1862; see also Rybacki, Tr. 3596 (discussions about Sigma acquiring Star 

became more serious in 2009, and Mr. Rybacki traveled to Houston to discuss it in 

person with Mr. McCutcheon)). 

822.	 In May 2009, Mr. Pais drafted a letter to Mr. Rybacki to provide guidance to Mr. Rybacki 

in advance of Mr. Rybacki’s upcoming meetings with Star, which Mr. Pais referred to as 

“HTN” (for “Houston”) in the letter. (CX 0915 at 001; Pais, Tr. 1865-1866 (explaining 

that the purpose of his letter was “to guide [Mr. Rybacki] . . . because he was not 

involved with our discussion previously . . . .”); Rybacki, Tr. 3592-3595). 

823.	 Sigma believed that a merger or joint venture between Sigma and Star would have helped 

solve an oversupply problem that “wasn’t healthy” for the Fittings market. (Rybacki, Tr. 

3596-3597 (“We always thought . . . there was just an overcapacity that wasn’t healthy 

and that instead of beating each other’s brains in every day that we should either have a 

joint venture or one buy the other . . . .)). 

824.	 In or about March or April of 2009, Mr. Rybacki held discussions with Mr. Bhutada and 

Mr. McCutcheon of Star, and invited them to meet with Frontenac to discuss a “suitable 

merger.” (CX 1076 at 001-003 (May 26, 2009 Pais email describing Mr. Rybacki’s 

discussions with Star “a couple of months back”); Pais, Tr. 1861-1862 (discussing CX 

1076)). 

825.	 Mr. McGivern, Sigma’s incoming CEO, and Mr. Florence of Frontenac subsequently had 

an introductory meeting with Star. (Pais, Tr. 1868). 

6.4.1.7 Policies on Competitor Contacts 

826.	 McWane’s policies and guidelines relating to contacts with competitors called for Mr. 

Tatman to speak only with Mr. Rona, who, as Sigma’s OEM Manager, handled the buysell relationship between McWane and Sigma. (Tatman, Tr. 455-456; see also, e.g., CX 

1575 (email between Tatman and Rona regarding sale of glands)). These policies and 

protocols included a prohibition on any pricing discussions with a competitor. (Tatman, 

Tr. 456). 

113 
PUBLIC RECORD

827.	 There is no situation under McWane’s policies and protocols regarding contact with 

competitors in which it would be appropriate for Mr. Tatman to speak with Mr. Rybacki. 

(Tatman, Tr. 456 (unaware of any such situation)). 

6.4.2	 Mr. Page (McWane) and Mr. Pais (Sigma) Have Developed a Close 

and Trusting Relationship, and Discuss Competitive Dynamics and 

Pricing Practices in the Fittings Market 

828.	 Mr. Page of McWane and Mr. Pais of Sigma have developed a close and trusting 

relationship, and often discuss competitive dynamics and pricing practices in the Fittings 

market. (Infra ¶¶ 829-841). 

829.	 Mr. Pais and Mr. Page have built a mutually respectful and trusting relationship over 

time. (Pais, Tr. 1871-1872) (“mutually respectful” relationship); CX 0317 at 001 (Pais, 

email May 13, 2009: “close and trusting relationship”); CX 0915 at 004 (Pais writing in 

2009 with respect to McWane that “RELATIONSHIP & TRUST are key [for] future ‘coexistence’ and prosperity . . . SIGMA has it”); CX 1164 at 004 (2009 Pais Memo to 

Sigma Board (describing a “strategic relationship with McWane back in 2003” and a 

“mutually trusting and mutually respectful relationship with Mr. Page, their CEO”)). 

830.	 As Mr. Pais explained in an October 4, 2009 email to a member of Sigma’s Boards of 

Directors (Mr. Fang Gang), Mr. Pais has a “strong personal relationship with Mr. 

Page . . . . RP values loyal and trusting friendships – and since I have continued our 

contact over the years without any disruptive or unhealthy practices, we have remained 

close despite being direct competitors.” (CX 1023 at 005; see also CX 2118 at 003 

(October 22, 2007 email where Mr. Pais states, “I have a strong personal relationship 

with Mr. Page as we have helped each other in many ways, as he is a person, who if he 

trusts someone, will be open for not only discussion but any business opportunity if it is 

in the interest of both McWane and the industry)). 

831.	 The genesis of Mr. Pais’s “very trusting relationship” with Mr. Page began in 2003 when 

Sigma helped McWane establish a manufacturing plant in China in a manner that 

“discouraged the creation of new capacity.” (CX 1163 at 007; Pais, Tr. 1868-1870 

(explaining that his relationship with Mr. Page began in 2003 in the midst of the antidumping proceeding for Fittings before the International Trade Commission when Mr. 

Pais offered to supply McWane with private-label Fittings made in China)). 

832.	 Mr. Pais traveled with Mr. Page to India and China. Mr. Page was interested in building 

a foundry overseas, and Mr. Pais introduced Mr. Page to his contacts in China who 

helped McWane to build its foundry in China. (CX 2482 (Page, Dep. at 28-29); Pais, Tr. 

1871; CX 2528 (Pais, Dep. at 199)). 

833.	 Mr. Pais tried to dissuade Mr. Page from creating the additional “unwanted capacity that 

would hurt the industry in the long term.” (CX 1986 at 002; Pais, Tr. 1875). 

834.	 Before McWane’s foundry in China became operational, Sigma supplied private label 

Fittings made in China to McWane. (Pais, Tr. 1870-1871 (describing meeting with 

114 
PUBLIC RECORD

Messrs. Page and Green in China to check Sigma’s supply chain and quality assurance 

standards)). 

835.	 Mr. Pais initiated a “strategic relationship” with Mr. Page in order to help stabilize the 

Fittings market. For example, in a letter to business partners, Mr. Pais contrasted 

Sigma’s earlier, competitive relationship with McWane with its more recent, “trusting” 

phase: 

While we were head to head competitors throughout our first 20 

years, with hardly any contact at all, I instinctively felt if a 

relationship could be developed, it would only add to the stability 

of the industry by removing the mistrust that existed, which was 

reflected in the unhealthy competitive pricing that prevailed till 

2003. 

(CX 1163 at 007; see also CX 1164 at 004 (2009 Pais memo to Sigma Board describing 

“strategic” and “mutually trusting and mutually respectful relationship with Mr. Page” 

because Mr. Pais had “instinctively felt that a positive relationship can only be good for 

SIG and our industry, to at least have an opportunity to prevent the reactive decisions 

which can harm us all . . . .”); Pais, Tr. 2024 (being “reactive” is associated with lowering 

prices)). 

836.	 In particular, Mr. Pais wanted to give McWane “confidence” in Sigma’s “commitment 

for market responsible discipline.” (CX 1069 at 001 (in February 2009, Mr. Pais wrote 

that in 2004 “we managed to buoy the market after our strategic relationship with 

McWane, which gave them some confidence about our commitment for a market 

responsible discipline.”); CX 2528 (Pais, Dep. at 359-361 (“Discipline” means sticking to 

the list price and published multiplier rather than job pricing)). 

837.	 As part of this “very trusting relationship,” Mr. Pais and Mr. Page exchanged 

competitively sensitive and strategic information about their companies. For example, in 

September 2007, Mr. Pais and Mr. Page had a long meeting at which Mr. Page shared 

McWane’s market analysis, competitive pricing strategy, and its plans for structural and 

managerial changes in McWane’s Fittings business. (CX 2118 at 001-002 (recounting 

meeting with Mr. Page in which Mr. Pais “was surprised to hear from [RP] directly, 

several major changes that he has initiated to respond to the weak market conditions.”); 

Pais, Tr. 1882-1883; CX 2528 (Pais, Dep. at 208-210) (describing meeting with Page)). 

838.	 At the September 2007 meeting between Mr. Page and Mr. Pais, Mr. Page expressed to 

Mr. Pais that he was “disappointed in our failure to get a better landscape.” (CX 2119 at 

001; Pais, Tr. 1894-1895 (offering no explanation of this remark); Pais, Tr. 1896 (“[Mr. 

Page] obviously seemed to have been unhappy with the way their business had done or 

gone . . . .”)). 

839.	 On one occasion on which Mr. Page and Mr. Pais met, one of their agenda topics was to 

discuss Star, although Mr. Page could not recall what they spoke about in relation to Star. 

(CX 2091; CX 2482 (Page, Dep. at 240-241) (testifying to meeting in New York City)). 

115 
PUBLIC RECORD

840.	 Over the years, Mr. Pais frequently traveled to Birmingham, Alabama, and would meet 

there with Mr. Page if there was a specific issue, opportunity, or need for it. (Pais, Tr. 

1886; see also Pais, Tr. 1727 (in 2008 and 2009, Mr. Pais communicated with David 

Green and Ruffner Page of McWane)). 

841.	 Over time, this “trusting” relationship between Sigma and McWane resulted in having 

“generated an all round goodwill, which in turn led to tangible benefits such as higher 

market pricing and profits for all including Sigma.” (CX 1163 at 007; see also CX 1986 

at 002 (draft letter discussing early development of the relationship between Messrs. Pais 

and Page and how they “did not press hard to reap substantial short term benefits – rather, 

we took an amenable view on the commercial issues in order to develop a respectable 

partnership. We felt it was in our interest as much as yours to work together to make our 

industry a better place with stable players.”); CX 1225 at 002-003 (final version of 

memorandum as emailed to Page on August 24)). 

6.5	 Fittings Suppliers Had a Motive to Conspire 

842.	 In late 2007, economic and market conditions, and the competitive dynamics of the 

Fittings industry, provided each of McWane, Sigma and Star with powerful motives to 

conspire with the others to reduce competition and stabilize and raise Fittings prices. 

(Infra ¶¶ 843-906). 

843.	 During 2007, as the economic downturn began, the Fittings industry experienced a period 

of declining demand, declining prices, and increased costs. (CX 2457 (Sigma October 19 

letter referring to recent “decline in multipliers in the fittings market”); Rybacki, Tr. 1111 

(prices had been falling prior to October 2007); RX-690 (Rybacki, Dep. at 66-67) (the 

Fittings market had gotten very competitive, and prices eroded); Tatman Tr. 263-265 

(Fittings market became more price competitive with more pressure for Project Pricing as 

the economy began to decline); Tatman, Tr. 268-269 (Fittings market volume declined by 

50% between 2006 and 2010); Tatman, Tr. 347 (describing prices “not keeping pace with 

inflation”); CX 2397 at 019 (McWane financial statements for December 2007 showing 

year-to-date per-ton costs for Domestic Fittings up 14.1% over 2006, and per-ton costs 

for non-Domestic Fittings up 10.1% over 2006)). 

844.	 The Fittings market became more price competitive, with more pressure for Project 

Pricing, as the economy began to decline. (Tatman, Tr. 263-265). 

6.5.1	 McWane’s Motive to Conspire 

6.5.1.1	 McWane Faced Excess Inventory, Overcapacity, and High 

Production Costs 

845.	 In late 2007, McWane faced excess inventory, overcapacity, and high production costs. 

(Infra ¶¶ 846-852). 

846.	 { 

116 
PUBLIC RECORD

} (Tatman, Tr. 1036-1037, 1040, in 

camera). 

847.	 {

 (Tatman, Tr. 210-211, 840, 1037, in camera; CX 2416 at 015); see 

supra 3.1.2.6 (describing Mr. Green’s employment at McWane). 

848.	 As a result of the excess domestic inventory, Mr. Tatman began running inventory down 

in 2007, in part, by substituting U.S.-manufactured Fittings for jobs with Open 

Specification. Today, lower substitution rates of U.S.-manufactured Fittings for Open 

Specification jobs are part of what has driven McWane’s gross margins up. (Tatman, Tr. 

840). 

849.	 “Idle plant” costs are the fixed overhead costs associated with running a Fittings 

manufacturing facility when the plant is not running on all days of the week. McWane 

reports this cost as a separate line item on its income statements called “idle plant.” 

(Tatman, Tr. 432-433). 

850.	 In 2007 and 2008, McWane’s Tyler and Union Foundries, together, were contributing 

approximately $7 million to the idle plant costs line item. (Tatman, Tr. 433-434). 

851.	 In response to reduced demand in 2008, Mr. Tatman first reduced shifts, and ultimately 

idled McWane’s Tyler South Plant in September 2008. (RX-644 (Tatman, Dep. at 52­

53)). Running reduced shifts at that plant resulted in substantial “idle plant” costs that 

brought down McWane’s overall profitability until McWane shut down the plant. 

(Tatman, Tr. 432-434). 

852.	 Historically, McWane’s two U.S. plants had a higher cost of production than its Chinese 

plant and the overseas plants of its competitors. (Tatman, Tr. 431-432 (stating with 

respect to manufacturing costs that the “manufacturing basis point in China is much 

lower” than at McWane’s U.S. plants)). 

6.5.1.2	 McWane Was Losing Volume and Market Share Because It 

Could Not Compete Effectively Against Project Pricing 

Offered by Sigma and Star 

853.	 In late 2007, McWane was losing volume and market share because it could not compete 

effectively against the Project Pricing offered by Sigma and Star. (Infra ¶¶ 854-859). 

854.	 In 2007, in an effort to maintain sales volume, Star competed vigorously, expanding its 

use of Project Pricing, which had previously been reserved primarily for wastewater 

treatment plant projects. (RX-687 (Pais, Dep. at 79-83) (previously, project pricing was 

primarily for wastewater treatment plants); see also Rybacki, Tr. 1136-1137 (Star’s 

pricing for most of 2007 was “overly aggressive,” took prices to “a new depressed level, 

and it was hard to compete with.”)). 

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855.	 Mr. Green of McWane responded aggressively to Star’s low pricing with equally low 

pricing, and McWane’s Fittings profits and volume both fell. (CX 2118 at 002 (Pais 

recounting Page statements that “In [Fittings], largely due to Star’s low pricing and 

[David Green’s] decision to respond aggressively with equally low pricing as the import 

pricing, Tyler’s profits and volume went down.”); Pais, Tr. 1882-1883 (describing 

meeting with Page)). 

856.	 The price erosion in the Fittings market occurred not in published list prices or 

multipliers, but in the effective or “actual” multipliers that resulted from the use of 

Project Pricing. (CX 1138 at 001 (Pais April 2008 email noting that effective Fittings 

multipliers had declined almost 20% in past two years); Pais, Tr. 2079 (explaining that 

decline was in “actual multipliers,” not “published multipliers”); CX 2477 (Jansen, Dep. 

at 248-249) (the use of Project Pricing increased in or around August 2006 as the market 

started to decline)). 

857.	 Even though McWane was chasing the prices offered by Sigma and Star, it was still 

losing Fittings market share year over year, because McWane was still “getting beat at 

the pricing game.” (Tatman, Tr. 262). McWane’s sales force was not as effective, 

nimble, or large as the sales teams for Star and Sigma. (Tatman, Tr. 285-286 (“We felt 

that their – quite frankly, I think the quality of their salespeople was better than ours....I 

think they had more boots on the ground. I think they had better people at that point in 

time. And it is my understanding that their people were on an incentive-based, which 

made them more aggressive probably than our salespeople, who were on fixed 

salaries.”)). 

858.	 Mr. Tatman believed that McWane had been losing share in the Fittings market because 

of increased Project Pricing, and because McWane’s relatively small sales force was not 

able to track changes in competitive price levels as well as those of Sigma and Star. 

(Tatman, Tr. 285-286). 

859.	 Mr. Tatman therefore wanted to increase pricing transparency and stability – i.e., 

compress the gap in the marketplace between published prices and actual invoice prices 

that resulted from Project Pricing, thereby giving McWane greater visibility into 

competitive pricing levels. (Tatman, Tr. 338-339). 

6.5.2	 McWane and Sigma Had a Motive to Conspire with Star, Which 

Regularly Engaged in Competitive Project Pricing and Which 

McWane and Sigma Saw as Detrimental to the Industry 

860.	 In late 2007, McWane and Sigma each had a motive to conspire with Star, which 

regularly engaged in aggressive Project Pricing in the Fittings market. (Infra ¶¶ 861­

869). 

861.	 Both before and after the conspiracy, it was widely known in the business “that Star was 

most aggressive in their pricing under this special pricing or job or whatever it’s called.” 

(Pais, Tr. 1937). 

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862.	 Project Pricing was a significant part of Star’s competitive strategy, because it was the 

smallest competitor in the market and it needed to Project Price to remain competitively 

viable. (McCutcheon, Tr. 2387). 

863.	 Star successfully increased its Fittings business in 2007 by implementing a general sales 

strategy of offering customers Project Pricing. Star used Project Pricing as a way to 

establish relationships with customers and prove itself with the hope of gaining more 

business in the future. (Minamyer, Tr. 3145-3146; CX 2526 (Minamyer, Dep. 115-116)). 

864.	 Mr. Tatman views Star’s historical pricing practices as “very aggressive and sometimes 

irrational.” (CX 2483 (Tatman, IHT at 232-234)). 

865.	 In a February 2009 email, Mr. Pais described Star as “undisciplined about pricing at the 

present chasing the shrunken market with reckless pricing.” (CX 1069 at 001; see also 

Rybacki, Tr. 1106 (describing Star as the most aggressive of his competitors in terms of 

pricing); CX 2531 (Rybacki, Dep. at 231) (describing Star as most likely to initiate 

Project Pricing)). 

866.	 In a May 2009 memorandum to the Sigma Board, Mr. Pais described Star’s pricing 

practices as “confusing and disruptive” and “unpredictable and unhealthy.” (CX 0214 at 

006). 

867.	 In a May 2009 email to Walter Florence, Mr. Pais stated that “Star has been singularly 

unhealthy to our entire industry over the past 20-some years, with their reckless, 

irresponsible and undisciplined tactics to resort to whatever it takes to grab some business 

and grow.” (CX 1076 at 003; Pais, Tr. 1862-1863 (Star has “done whatever they could to 

do hurt us to take business away from us,” both through pricing and other tactics)). 

868.	 In an October 2009 letter, Mr. Pais compared Sigma’s and Star’s approaches to pricing: 

“Sigma has remained responsible and professional – like . . . being responsible in pricing 

our [Fittings] business etc while Star has been an irresponsible, disruptive and unreliable 

competitor, constantly attacking McWane’s business with low pricing and other tactics.” 

(CX 1023 at 005). 

869.	 In a 2010 domestic market strategy document, Mr. Tatman stated that “Star has 

historically shown that they will just continue incremental discounting down to the point 

when they’re selling near breakeven.” (CX 0105 at 001). 

6.5.3	 Sigma and Star Had a Motive to Conspire Because Inflationary Costs 

in China Were Rising Faster Than McWane’s U.S. Costs 

870.	 In late 2007, Sigma and Star each had a motive to conspire with McWane because 

inflationary costs in China were rising faster than McWane’s U.S. costs. (Infra ¶¶ 871­

877). 

871.	 Sigma’s and Star’s margins were facing additional pressure from the declining market 

because their manufacturing costs in China were increasing. (RX-687 (Pais, Dep. at 39­

40); McCutcheon, Tr. 2515-2516 (describing cost increases); RX-697 (McCutcheon, IHT 

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(Vol. 2) at 402-404); Tatman, Tr. 870-875 (costs of manufacturing Fittings in China were 

increasing in early 2008, because of currency exchange rates, rising labor costs, and 

increases in the cost of pig iron); Pais, Tr. 1896 (“Our costs from China and India had 

begun to rise from late ‘07, which everyone was aware, including [Page].”)). 

872.	 Specifically, the costs of producing Fittings in China was increasing dramatically due to 

increases in the cost of scrap iron in China used in the production of Fittings, labor costs 

to make the Fittings, and freight charges of transporting the Fittings to the United States. 

(Rybacki, Tr. 1113 (“Raw material prices were going up. Labor was going up, insurance, 

ocean freight. It was all going up.”); RX-697 (McCutcheon, IHT (Vol. 2) at 402 (cost 

increases were “at a very rapid and erratic pace.”)). 

873.	 McWane’s CFO, Mr. Nowlin, prepared a sensitivity analysis that analyzed costs 

“heating” up in China. (CX 2481 (Nowlin, Dep. at 107-109); CX 2143). Mr. Nowlin 

concluded that the rising costs related to China’s strengthening currency, increased 

Chinese Value Added Tax, and Chinese inflation “hurts [the importers] a lot worse than it 

hurts us.” (CX 2481 (Nowlin, Dep. at 107-109); CX 2143). Mr. Nowlin shared this 

sensitivity analysis with Mr. Walton on or about November 29, 2007 for “education” 

purposes. (CX 2481 (Nowlin, Dep. at 107-109); CX 2143). 

874.	 In a December 22, 2007 email to Mr. McCullough and Mr. Walton, Mr. Tatman 

described “accelerated inflation in China compared to Domestic cost,” (CX 1702 at 001), 

and in an email three days later to Mr. McCullough, Mr. Jansen, and Mr. Walton, Mr. 

Tatman again stated that “China inflation [is] out pacing domestic costs.” CX 2327 at 

001). 

875.	 A presentation prepared by Mr. Tatman in early 2008 likewise noted that “[c]ontinued 

inflation out of China is increasing pressure.” (CX 0627 at 001). 

876.	 Because U.S. costs were not rising as much as overseas prices, McWane’s cost of 

domestic production was not going up at the same rate, giving it a cost advantage. In a 

January 29, 2008 email, Mr. Page noted that rising costs for Chinese manufacturers made 

McWane’s domestic production competitive with imports. (CX 1183 at 001 (“The 

Chinese importers in water works fittings are seeking price increases [and] we are now in 

a position to resist. In fact I have offered to make ‘A’ items for an importer at the same 

price they can bring in it in.”)). 

877.	 Sigma was aware of McWane’s cost advantage. (Pais, Tr. 1910-1911 (McWane was 

“beginning to get a cost advantage on a variable cost basis, not total cost basis. And 

when they have idle capacity, they can leverage that advantage into getting some of the 

share back”). Mr. Pais expressed concern that perhaps McWane had “now done a 

thorough competitive review and decided that an aggressive offensive strategy is the best 

form of defense,” and that in seeking to strengthen its position McWane might “keep[] 

[Fittings] price down during our rise in costs etc.” (CX 2119 at 001; Pais, Tr. 1895­

1897). 

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6.5.4	 Sigma and Star Sought to Raise Prices in Late 2007; McWane Did Not 

Follow 

878.	 Sigma and Star each had a motive to conspire with McWane because they announced a 

price increase in late 2007, but McWane did not follow their lead, despite direct and 

indirect appeals from Sigma to do so. (Infra ¶¶ 879-906). 

879.	 On October 5, 2007 McWane had announced a 2% to 3% multiplier increase effective 

November 5, 2007. Star followed with its own increase on October 11, 2007, and Sigma 

followed on October 23, 2007. (RX-401 (McWane October 5 letter); RX-402 (Star 

October 11 letter); RX-015 (Sigma October 23 letter); CX 2457 (Sigma October 19 

letter)). 

880.	 Despite this price increase announcement, the market was unstable, and actual prices 

after Project Pricing in 2007 were not keeping up with cost inflation. (CX 0627 at 001 

(“Net pricing in 2007 lagged inflation due to pressure on volume.”); see also Tatman, Tr. 

346 (in 2007, McWane was unable to raise prices enough to offset inflation because of 

pressure on volume)). 

881.	 In its October 23, 2007 letter following McWane’s announced price increase, Sigma also 

announced that it would further increase its list prices by a minimum of 6%, to be 

effective January 2, 2008. (CX 2457 (version of letter dated October 19); RX-015 (same 

letter as received by Star, dated October 23 and edited to include accessories); Rybacki, 

Tr. 1109-1110 (describing letter as conveying that Sigma “need[s] a price increase 

because of our cost structure has gone up”); CX 2531 (Rybacki, Dep. at 216-217) (letter 

was telling customers Sigma needed a price increase, and everybody in the market would 

understand that Sigma needed and wanted a price increase)). 

882.	 On November 30, 2007, Star followed with its own announcement that it would be 

putting a new price list into effect in January 2008. (RX-406 (“Star Pipe Products will be 

publishing a new Price List for Utility Fittings, Accessories and Fabricator Products 

(UPL.08.01) to be effective January 1st, 2008.”); Minamyer, Tr. 3153). 

883. Star’s announcement stated that it would issue new list prices in 2008, but the letter did 

not say whether prices would increase or what the magnitude of any increase would be. 

(RX-406 (“Star Pipe Products will be publishing a new Price List for Utility Fittings, 

Accessories and Fabricator Products (UPL.08.01) to be effective January 1st, 2008.”); 

Minamyer, Tr. 3154). 

884. { 

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; (CX 1621-A 

at 118-119, 126-130, in camera { }; supra ¶¶ 713-733 

(detailing telephone records). 

885. Because of his concern about McWane’s cost advantage, and the importance to Sigma of 

a successful list price increase, Mr. Pais lobbied Mr. Page for McWane’s support. He 

actively sought opportunities to stay in contact with Mr. Page. (CX 1163 at 007, 008 

(August 2008 Pais email describing the recent decline in Sigma’s cost advantage as “part 

of my motivation to revive our strategic relationship with RP/McWane and find credible 

opportunities to stay engaged with them!”); CX 0317 at 001 (Pais May 13, 2009 email 

describing relationship with Pais and stating that by using “non-conflicting ‘strategic’ 

opportunities, I have been able to get [Page’s] attention and agreement on some important 

market issues.”)). 

886. On or about December 3, 2007, Mr. Page and Mr. Pais met in person in Birmingham, 

Alabama. (Pais, Tr. 1886-1887; CX 2482 (Page, Dep. 107-108) (Mr. Page likely met 

with Mr. Pais on December 3, 2007, although he does not recall what they spoke about); 

see also CX 2037 (email setting up meeting); CX 2038 (Page calendar entry reflecting 

meeting between Mr. Page and Mr. Pais on December 3, 2007)). 

887. Later that month, when Mr. Page initially declined a further meeting request from Mr. 

Pais, (CX 2119 at 001 (Mr. Page informing Mr. Pais that he does not think a meeting 

between them would be worthwhile or wise); Pais, Tr. 1894), Mr. Pais declared that he 

would “go[] all out to arrange a meeting with RP before closing down the direct access as 

he suggested.” (CX 2120 at 001; Pais, Tr. 1890). Viewing Mr. Page’s refusal as an 

invitation to meet for a pretextual purpose (a “clue to meet thru transparent grounds”), 

Mr. Pais prepared a memo to Mr. Page proposing to meet regarding an opportunity for 

McWane in India, which, he noted, “incidentally is for real as well.” (CX 2120 at 001; 

Pais, Tr. 1891; see also CX 1113 at 001-002 (final version of Pais memo as sent to Page 

on December 14, 2007)). 

888. Mr. Tatman analyzed the new Sigma list prices based on McWane’s product mix and 

concluded that they represented an approximately 25% weighted average price increase. 

(Tatman, Tr. 348-349). 

889. Mr. Tatman believed that such a large price increase would lead to increased Project 

Pricing, greater instability, and less transparency in the Fittings market. (Tatman, Tr. 

348-349). 

890. McWane knew that Sigma was attempting to learn from the market whether McWane 

intended to follow its January 2008 price increase, and believed that Star was waiting for 

an announcement from McWane as well. (CX 1702 at 001 (Tatman writing to 

McCullough and Thomas on December 22, 2007: “Sigma recently posted a new List 

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Price effective Jan 2nd and they’ve been pulsing sources trying to see if [McWane] will 

follow”); Tatman, Tr. 336-337). 

891.	 McWane also knew that its competitors were likely facing more severe cost pressures 

than McWane due to inflation in China. (CX 1702 at 001 (“Given . . . the accelerated 

inflation in China compared to Domestic cost, I believe we’re in a unique position . . .”); 

Tatman, Tr. 336-337). 

892.	 Sigma closely watched the market to see if McWane was giving any indication of 

following its price increase. On December 18, 2007, regional sales managers reported to 

Mr. Rybacki, Mr. Pais, and Sigma’s M20 management group that they had seen no 

evidence of McWane changing its list prices. One manager noted that he had declined to 

mail the new Sigma price book because “[i]t would be a futile exercise unless everyone is 

onboard.” (RX-017 at 0001; Rybacki, Tr. 3511-3513). 

893.	 Mr. Rybacki testified that he does not recall whether he spoke to any of his competitors 

about the price increase between December 18, 2007 and December 20, 2007. (Rybacki, 

Tr. 3514-3515 (“Q. Between December 18 when you received the e-mails from Mr. 

Pietryga, Mr. Richardson and Mr. Walsh with information about the price increase and 

December 20, did you contact anyone to talk about what to do about the price increase? 

A. I have ongoing conversations with our main customers every day. Q. Did you speak to 

any of your competitors in that period of time either at Star or at McWane? A. About the 

price increase? Q. Yes, sir. A. I don’t recall.”)). 

894.	 {

 (McCutcheon, Tr. 2473-2474, 2476, in camera; Rybacki, Tr. 

3616, in camera { }; 

CX 1621-A at 112, 123, 124, in camera { }; supra ¶¶ 734, 

736, 738 (detailing telephone records)). 

895.	 {

 (CX 1621-A at 

124, 125, in camera (Rybacki telephone records); Rybacki, Tr. 3617, 3622-3623, in 

camera { }; Rybacki, Tr. 3610, in camera { 

; Rybacki, Tr. 3617, in camera { 

}; supra 

¶¶ 735, 737 (detailing telephone records); see also Rybacki, Tr. 3622-3623, in camera 

{ 

} 

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896.	 McWane did not announce that it would follow its competitors’ list price changes. On 

December 20, 2007, Sigma issued a letter to its customers delaying implementation of 

Sigma’s Fittings list price increase (previously scheduled for Jan 2, 2008), explaining in 

part: 

Unfortunately for you and us one of our competitors in the Fitting 

Industry has not announced a New List Price increase for 2008 

despite the fact that they are subject to the same cost pressures as 

the rest of us. As a result the New List Price Sheet as it pertains to 

Fittings only will be delayed for the time being. It is our sincere 

hope that the delay will be short term and that this Price Increase 

which is healthy for all of us will be implemented in the very near 

future. 

(CX 2455 at 001 (emphasis in original); Rybacki, Tr. 1114-1116; RX-690 (Rybacki, Dep. 

at 83) (phrase “one of our competitors” was referring to McWane); Rybacki, Tr. 1114­

1115) (same)). 

897.	 Mr. Tatman received a copy of Sigma’s December 20, 2007 letter, which he described as 

“a strange letter,” and as “bashing” McWane. (Tatman, Tr. 351-352; CX 0627 at 001, 

012). 

898.	 Sigma was upset by McWane’s failure to follow Sigma’s price increase announcement. 

(Rybacki, Tr. 1115). 

899.	 In late December, Star also issued an updated version of its November 30 list price 

announcement, postponing the effective date of its new Fittings list prices from January 

2, 2008 to February 4, 2008. (CX 0627 at 001, 014; Minamyer, Tr. 3155-3156). 

900.	 On December 26, 2007, Mr. Pais sent a pricing strategy email to Sigma’s management 

group, in which he stated that he was confident that McWane would eventually follow 

Sigma’s price increase announcement, and explained that McWane was trying to send a 

message to Sigma and Star regarding discounting (i.e., “net” pricing and “effective” 

multipliers) in the Fittings market: 

As McWane chose not to follow our lead in increasing the PRICE 

LIST as of 1/2/07, LR’s letter to customers advising a ‘temporary 

delay’ in the PL-108 is the logical first step. However, despite 

being very clear LR’s letter may be misconstrued as ‘rescinding’ 

the 08 PL increase. We should all be aware and alert that it’s NOT 

SO. From all indications, I am still confident McWane will follow 

our lead – as they too were trying to make a statement that we, 

the NMG (the non-McWane Supplier Group), need to get a 

wake-up call and are prepared to be more responsible and truly 

committed to raise the overall NET, NET PRICE; including the 

Multiplier + VRs. They are finally trying to leverage their current 

relative costing/pricing advantage to send a message to the NMG -- 

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that while we can take the market price down on our own, we need 

THEM to take it up! 

. . . 

We have to do all we can to raise the effective Multipliers from the 

current dismal .22 to .25 range. McWane may be right in their 

skepticism about our inability to sustain, let alone boost the 

multipliers and instead try to raise the List to perhaps create 

additional ‘head room’ for multiplier slides! 

(CX 1439 at 001 (emphasis added); Pais, Tr. 1902-1917). 

901.	 Mr. Pais believed that due to “costs, which were going up a lot more faster overseas as 

compared to domestic, it is fair to say that they [McWane] had a temporary advantage.” 

(CX 2528 (Pais, Dep. at 255-258) (discussing CX 1439)). 

902.	 When Mr. Pais wrote that, McWane was making a statement that Star and Sigma needed 

to “be more responsible and truly committed to raise the overall NET, NET PRICE,” Mr. 

Pais was referring to the need, in the face of declining demand, for the suppliers to start 

looking for ways to increase prices. (Pais, Tr. 1904-1905 (“[I]n a year, 2007, when the 

volume clearly had dropped, we had so many different kind of hits to our overall price. 

There are discounts and discounts on discounts, rebates and cash discount, that we’re all 

forced to respond to our competition, whether it’s McWane or Star or SIP. . . . I was 

trying to set the stage that this is the time of the year we have to look at our bottom line, 

and let’s find ways to be responsible for ourselves, you know, to run a smart business and 

start looking at price enhancements.”); CX 1439 at 001). 

903.	 In response to this perceived message from McWane, Mr. Pais asked his team to be more 

disciplined about the Fittings discounts that they offered to customers. (Pais, Tr. 1905­

1906 (“Q. So being more disciplined about the price – are you asking your team to be 

more disciplined about the prices they’re offering to your customers? A. Yes.”); CX 

1439 at 001). 

904.	 Sigma needed McWane to follow Sigma’s price increase because of the “practical reality 

that if we go alone, we can do it, and at times, we’ve done it, but then we’ll lose the 

volume.” (CX 2528 (Pais, Dep. at 258); Rybacki, Tr. 1113-1114 (Sigma cannot raise 

prices if competitors don’t follow because “We’re selling a commodity”)). 

905.	 McWane never increased its list prices in response to Sigma’s October 23, 2007 list price 

increase announcement. (Tatman, Tr. 352). 

906.	 Sigma’s October 23, 2007 list price increase announcement never went into effect, and 

was eventually withdrawn by Sigma. (Rybacki, Tr. 1115, 1125-1126; CX 1189 (Sigma 

January 29, 2008 letter to customers superseding previously announced list price 

increase)). 

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Price-Fixing Conspiracy in the Fittings Market Among McWane, Sigma, and Star 

7.1	 The Tatman Plan 

7.1.1	 Mr. Tatman Developed a Plan for Achieving Stability and 

Transparency in the Fittings Market 

907.	 In late December 2007 and early January 2008, Mr. Tatman developed a plan to forge an 

agreement among the Fittings suppliers whereby McWane would only agree to higher 

published prices if its competitors committed to curtail their Project Pricing and maintain 

stable and transparent pricing at published levels. (Infra ¶¶ 908-923). 

908.	 In a December 22, 2007 email, Mr. Tatman informed his boss, Mr. McCullough, that he 

had a “concept” to take advantage of market conditions that put McWane in a “unique 

position” to “help drive stability and rational pricing” in the Fittings market. (Tatman, 

Tr. 340-343; CX 1702; CX 2327; CX 0627). Mr. Tatman defined price stability and 

rational pricing as within 10% of published multipliers. (Tatman, Tr. 283-285, 338-339). 

909.	 Specifically, Mr. Tatman wrote in his December 22, 2007 email to his boss, Mr. 

McCullough, that: 

Given both the change in the Tyler/Union leadership structure and 

the accelerated inflation in China compared to Domestic cost, I 

believe we’re in a unique position to help drive stability and 

rational pricing with the proper communication and actions. 

I have a concept that I believe will work if properly executed. . . . I 

don’t believe with our silence and Star’s push announcement that 

Sigma will hold to their Jan 2nd effective date so we have some 

time to get it right. 

(CX 1702 at 001 (emphasis added)). 

910.	 Three days later, on December 25, 2007, Mr. Tatman echoed these same points in a cover 

email to Messrs. McCullough, Jansen and Walton that transmitted a draft presentation of 

McWane’s pricing strategy for Fittings, titled “Draft Presentation for 1Q 2008 DIWF LP 

Review.ppt.” In that email, Mr. Tatman wrote: 

Our past attempts to drive stable pricing haven’t been too 

successful. However, our new leadership structure coupled with 

China inflation out pacing domestic costs may provide a unique 

opportunity for success provided our strategy and execution is 

correct. 

(CX 2327 at 001 (emphasis added)). 

911.	 On or about January 6, 2008, Mr. Tatman outlined the specifics of his “concept” for 

driving “stability and rational pricing” in the Fittings market in a presentation he drafted 

and provided to Messrs. Walton and McCullough (the “Tatman Plan”). The presentation 

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was intended to help McWane decide how to react to market conditions in the Fittings 

market. (CX 1702; CX 0627; Tatman, Tr. 345-346; Tatman, Tr. 752 (“[E]verything we 

do is very methodical and very well thought out.”)). 

912.	 In the presentation, Mr. Tatman first reported on the current competitive environment, 

including Sigma’s December 20, 2007 letter to customers postponing its list price 

increase, noting that that letter had “bash[ed]” McWane for not following Sigma’s 

announced list price increase; and Star’s announced list price increase and subsequent 

postponement of that price increase’s effective date. (CX 0627 at 001; Tatman, Tr. 349­

350, 353). 

913.	 Most importantly, the presentation specifically outlined the elements of Tatman Plan in a 

slide titled, “Desired Message to the Market & Competitors”: 

(CX 0627 at 004). 

914.	 Under the Tatman Plan, McWane would communicate to “the Market & Competitors” 

that McWane would “encourage” and “drive” “both price stability and transparency” in 

the Fittings market. (CX 0627 at 004). 

915.	 Under the Tatman Plan, McWane would communicate to “the Market & Competitors” 

that McWane would support future Fittings price increases in “stepped or staged 

increments,” but only if there was “reasonable stability and transparency at the prior 

level.” (CX 0627 at 004; CX 2484 (Tatman, Dep. at 84-85); CX 0375 (draft letter to 

customers stating that any subsequent price increases would only be announced if “the 

increase can be supported by stable market conditions”)). 

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916.	 The Tatman Plan also called for McWane to communicate to “the Market & 

Competitors” that any consistent Project Pricing would be met with market-wide action 

by McWane to lower multipliers for that area. (CX 0627 at 004 (“Consistent Job Pricing 

will be met with general market actions.”)). 

917.	 Mr. Tatman believed that Sigma and Star would verbally follow McWane’s program 

because of their “desperate need for price increases.” (CX 0627 at 004 (“Due to their 

now more desperate need for price, I believe that Sigma and Star will mimic and verbally 

follow any program we publish.”); Tatman, Tr. 361-362). 

918.	 However, Mr. Tatman noted that one of the “keys to [the] actual success” of his Plan 

would be for Sigma and Star to centralize price authority away from their front line sales 

representatives in order to “add discipline to the process.” (CX 0627 at 004; Tatman, Tr. 

362, 1071 (“[T]he only way that’s going to work is if your competitors stop doing it.”)). 

919.	 The Tatman Plan’s objective was to stabilize market pricing by compressing the variance 

between published pricing and actual pricing, so as to achieve greater market pricing 

transparency. (Tatman, Tr. 1072 (“Q. And did you try to hold pricing and stabilize 

market pricing in 2008? A. We tried to compress the variance between where we were 

published and where we were actually having to go. . . . [W]e’re trying to get visibility to 

what’s going on out there because we can’t see it.”)). 

920.	 At trial, Mr. Tatman initially explained that his presentation (CX 0627) was for a 

brainstorming session between Mr. Tatman, Mr. Walton, and Mr. McCullough in order to 

decide how McWane was going to react to the competitive situation. (Tatman, Tr. 354­

358). 

921.	 Mr. Tatman attached to the presentation two draft letters to customers that would 

communicate elements of the Tatman Plan. These letters explained the reason for the 

price increase as: 

We understand the need for this increase and that, in general, 

higher price levels provide value to the industry. However, we 

don’t believe the industry’s your [sic] best interests are served by 

publishing increases that are not supported, leading to instability 

and ultimately erosion of market level pricing. 

and 

While we acknowledge this increase is significantly lower than 

what has been communicated by another supplier. We don’t 

believe your best interests are served by publishing increases that 

in turn are not supported, leading to instability and ultimately 

erosion of market level pricing. 

(CX 0627 at 006-007). 

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922.	 McWane’s January 11, 2008 letter to customers was based on those drafts and was the 

final result of Mr. Tatman’s “brainstorming session” with Messrs. McCullough and 

Walton. (Tatman, Tr. 371; see also infra ¶¶ 935-938). 

923.	 Mr. Tatman testified that he spoke with Mr. Rybacki “a couple of times” and he did not 

know what they discussed. Tatman Tr. 364 (“I testified at deposition that I’ve talked to 

Mr. Rybacki two, three, a couple of times. I don’t know when and I don’t know what the 

topics were.”). 

a.	 {

 (CX 1621-A at 113, in camera (Rybacki telephone 

records); Tatman, Tr. 367-368; Rybacki, Tr. 3624-3626, in camera; supra ¶¶ 739-742 

(detailing telephone records)). 

b.	 {

 (CX 

1621-A at 114, 115, in camera (Rybacki telephone records); Tatman, Tr. 369-370, in 

camera; Rybacki, Tr. 3627-3628, in camera). 

c.	 Mr. Tatman testified that he was unable to remember those calls, and that he did not 

know what was discussed. (Tatman, Tr. 367-370 (“Q. But you don’t know what you 

and Mr. Rybacki might have talked about on December 27? A. I don’t know if he 

said, ‘Merry Christmas. Welcome to the rat race.’ I have no clue.”)). 

d.	 { 

(Rybacki, Tr. 3627-3628, in camera { 

Rybacki, Tr. 1088-1089 {
 

}
 

7.1.2	 McWane Centralized Its Pricing Authority in 2008 

924.	 In January 2008, McWane centralized its Project Pricing approval authority. (Infra 

¶¶ 925-929). 

925.	 McWane centralized its pricing authority in January 2008 when it created a new pricing 

coordinator position for Mr. Napoli, tasking him with gaining control over the 

contentious and time-consuming process of negotiating Project Pricing with Distributors. 

(RX-640 (Napoli, Dep. at 35-36, 46-48, 50)). 

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926.	 McWane centralized pricing authority by requiring local sales agents to obtain approval 

before offering job pricing to Distributors. (CX 2480 (Napoli, Dep. at 44-47) (sales 

agents were instructed to run Project Pricing through Mr. Napoli); CX 2485 (Walton, 

Dep. at 121-122)). 

927.	 McWane executives were concerned that sales representatives with pricing authority 

could produce “instability and lower prices in the market.” (CX 2485 (Walton, Dep. at 

31-34) (explaining that he was a proponent of making pricing decisions at a centralized 

location based on what he had observed through the “actions of the competition”); see 

also CX 0111 at 002 (Walton expressing concern in 2009 that “overall pricing in the 

market place will decline” if McWane were to return pricing authority to the sales field)). 

928.	 By August 2009, after the price-fixing conspiracy had largely collapsed, Mr. McCullough 

thought it was “imperative” to McWane’s success in the market that McWane give its 

field sales representatives some latitude to adjust pricing. (CX 2353 at 002; CX 2485 

(Walton, Dep. at 38-39)). 

929.	 The change in policy to restore some limited authority to McWane’s sales force to offer 

Project Pricing was based on a determination that pricing in the marketplace “was very 

volatile,” and that McWane needed to restore that authority in order to “keep market 

share.” (CX 2480 (Napoli, Dep. at 53-54, 59) (discussing need for sales force to obtain 

appropriate verification, such as written proof of a competitor’s price, before offering 

Project Pricing under new rule)). 

7.2	 In the First Quarter of 2008, Sigma, Star and McWane Agreed to Match 

Prices and Cut Back Project Pricing 

930.	 In the first quarter of 2008, Sigma, Star and McWane agreed to match prices and cut back 

on Project Pricing. (Infra ¶¶ 931-1088). 

7.2.1	 McWane’s January 11, 2008 Letter Was an Invitation to Collude 

931.	 McWane’s January 11, 2008 customer letter was an invitation to collude directed at 

Sigma and Star, whereby McWane would agree to staged, industry-wide Fittings price 

increases in exchange for Sigma’s and Star’s agreement to curtail Project Pricing. (Infra 

¶¶ 932-949). 

932.	 In a January 11, 2008 pricing letter ostensibly addressed to customers, McWane 

announced that it was keeping its current list prices but would increase its blended 

Fittings multipliers by 10 to 12 percent, and that it intended to stop Project Pricing by 

selling products only off the newly published multipliers. (CX 1178). That letter read in 

pertinent part as follows: 

As per our prior letter of October 5, 2007, we will adjust pricing by 

increasing multipliers while retaining our current List Price, LP5072. Letters stating the new region specific multipliers will be 

mailed January 18, 2008. The increase will be 10% to 12% above 

the current prevailing multiplier levels on Blended Fittings and 

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Accessories and 3% to 5% on Domestic Fittings effective February 

18, 2008. 

To help our distribution customers better manage their Inventory 

valuations and compete on a more level playing field, it is our 

intention going forward to sell all products only off the newly 

published multipliers. We will continue to monitor the competitive 

environment and adjust regional multipliers as required to provide 

you with competitive pricing. 

All annual municipal bid contracts will be honored per the terms of 

the contract. Jobs quoted prior to this announcement will be 

honored through March 1, 2008, with acceptable documentation 

provided to your local Tyler/Union sales representative. 

If the current inflationary trends continue as forecasted, we 

anticipate the need to announce another multiplier increase within 

the next six months. However, we will only do so as conditions 

require. 

(CX 1178 (emphasis added); CX 2172 at 002; Tatman, Tr. 870). 

933.	 The January 11, 2008 letter did not provide any actual new price multipliers; McWane 

communicated those new multipliers, effective February 18, 2008, in price increase 

letters to customers dated January 18, 2008. (E.g., CX 0896 at 001; Tatman, Tr. 411-412; 

CX 1672 at 001; RX-608; CX 0035 at 001, 003). 

934.	 The January 11, 2008 letter, even though ostensibly addressed to customers, was the 

“Message to Competitors” envisioned by the Tatman Plan. (Tatman, Tr. 371 (January 

11, 2008 letter was a result of Tatman’s “brainstorming session” with McCullough and 

Walton for which he prepared the Tatman Plan); Tatman, Tr. 1066-1067 (describing 

January 2008 letter as a “head fake” to competitors); CX 1178). 

935.	 Mr. Tatman wrote the January 11, 2008 letter. (CX 2477 (Jansen, Dep. at 254-255); 

Tatman, Tr. 384-385 (Tatman prepared drafts)). 

936.	 Mr. Tatman prepared multiple drafts of the January 11, 2008 pricing letter, both as part of 

the Tatman Plan and subsequently. Three of these drafts were attached to the Tatman 

Plan. (CX 0627 at 006 (“Stronger Language” draft letter in Tatman Plan acknowledging 

that higher price levels “provide value to the industry” but that “the industry’s . . . best 

interests” are not served by increases “at levels that are not supported”); CX 0627 at 006 

(alternate “Stronger Language” draft letter in Tatman Plan stating that although the 

increase is “significantly lower than what has been communicated by another supplier,” 

McWane does not “believe your best interests are served by publishing increases that in 

turn are not supported, leading to instability and ultimately erosion of market level 

pricing”); CX 0627 at 007 (“Softer Language” draft letter in Tatman Plan)). 

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937.	 A subsequent draft, circulated by Mr. Tatman to Mr. McCullough and Mr. Walton on 

January 8, 2008, contained language stating that McWane would only make future price 

increases “if conditions require and the increase can be supported by stable market 

conditions” and that “[i]t is not our intention to provide job pricing.” (CX 0375 

(emphasis added)). 

938.	 By using the phrase “it is our intention going forward to sell all products only off the 

newly published multipliers,” McWane was announcing its intention not to offer Project 

Pricing. (Tatman, Tr. 387-388 (“Q. McWane announced it was not its intention to offer 

job pricing; isn’t that what you intended by this communication? A. I would say the way 

that is written, the answer would be yes.”); see also CX 2172 at 001 (Tatman email to 

HD Supply: “Distributors are ultimately better served with adherence to published 

pricing as instability and the corresponding price erosion only reduces your profitability); 

CX 0375 at 001 (draft of January 11, 2008 letter stating “It is not our intention to provide 

job pricing.”); CX 2477 (Jansen, Dep. at 250) (testifying that this language meant that 

McWane was going to try to reduce the amount of Project Pricing: “Q. Does that mean 

that Tyler/Union was going to try to reduce the amount of job pricing? . . . THE 

WITNESS: Yes.”); CX 2538 (McCutcheon, IHT (Vol. 2) at 413-414) (a reasonable 

interpretation of McWane’s letter by someone with experience in the industry would be 

that McWane was saying , “I’m done job pricing, if I see my rivals job pricing, I’m going 

to bring multipliers down in the areas where I observed job pricing.”)). 

939.	 At trial, Mr. Tatman admitted that McWane’s statement in the January 11, 2008 letter 

(CX 1178) that it intended to sell products “only off newly published multipliers” was 

directed at competitors, not customers. (Tatman, Tr. 894-895, 1065-1067 (testifying that 

it was a “head fake” directed at competitors, not customers)). 

940.	 The 10% - 12% increase in multipliers was “significantly lower” than the approximately 

25% average increase previously announced (and put on hold) by Sigma. (Tatman, Tr. 

382-384; CX 2172 at 001 (Tatman writing to HD Supply that “[t]he % change is 

significantly lower than the List Price change Sigma posted on their website which 

appears to be in the range of ~25% on average”)). 

941.	 Sigma understood McWane’s announcement of a 10%-12% increase over “prevailing 

multipliers” (CX 1178) reflected an increase above then-current effective multipliers in 

the marketplace, which were at that time lower than published multipliers. (Rybacki, Tr. 

3518 (“Q. [W]hen you learned that McWane was increasing multipliers by 10 to 12 

percent, what did you mean -- 10 to 12 percent above what? A. Above what multipliers 

were in the marketplace. Q. Were the multipliers in the marketplace at the end of 2007 

lower than the -- lower than they were actually published? A. Yes.”)). 

942.	 The relatively modest size of McWane’s proposed price increase as compared to the 

increase sought by Sigma reflected the strategy in the Tatman Plan that McWane would 

only support price increases in “stepped or staged increments.” (CX 0627 at 004). 

943.	 The relatively modest size of McWane’s proposed price increase also reflected 

McWane’s intent to reduce the other suppliers’ ability and incentive to engage in Project 

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Pricing by limiting the headroom between published prices and competitive prices. (CX 

2327 (email from Walton to Tatman, stating, “I like your strategy of only giving them 

half of what they want to try and prevent cheating and fire sales.”); Tatman, Tr. 349 

(Sigma’s proposed larger price increase would have given Sigma and Star “more 

headroom for discounting”); Tatman, Tr. 360-361 (aim of pricing plan was to “get better 

visibility” and reduce competitors’ “wiggle room”); Tatman, Tr. 374-375 (Tatman 

wanted to narrow the band between published price and competitive level to improve 

visibility); Tatman, Tr. 882 (McWane moderated the amount of its price increase so as 

not to “lose visibility on where the true competitive level was.”)). 

944.	 McWane’s letter offered to “announce another multiplier increase within the next six 

months,” but stated it would “only do so as conditions require.” The conditions required 

for another increase included achieving greater pricing stability and transparency in the 

Fittings market by curtailing Project Pricing. (CX 178; Tatman, Tr. 388-390 (price 

stability and transparency was a McWane objective); CX 2484 (Tatman, Dep. at 94-96) 

(discussing letter); CX 2484 (Tatman, Dep. at 97-98) (McWane’s letter was alerting the 

market to the possibility of another price increase); CX 2477 (Jansen, Dep. at 250-251) 

(Tyler/Union intended to reduce job pricing to bring stability, and would “like to go with 

no job pricing.”); CX 2172 at 001 (Tatman emphasizing need for stability in an email 

transmitting the January 11, 2008 letter to HD Supply); CX 2485 (Walton, Dep. 113-114 

(“stability in pricing” means that the market has less Project Pricing)). 

945.	 CX 1664 is a worksheet created by Mr. Tatman as part of his effort to establish actual 

Fittings price multipliers in January 2008. (Tatman, Tr. 885). The multipliers Mr. 

Tatman proposed in CX 1664 were used in the final multiplier map announced by 

McWane on January 18, 2008, and CX 1664 contains Mr. Tatman’s analysis the financial 

impact of those multiplier changes. (Tatman, Tr. 1054-1055; compare CX 1664 with CX 

0035 at 003)). 

946.	 In determining how to adjust multipliers in January 2008 and evaluating whether a 

change was an effective increase or a decrease, Mr. Tatman compared the then-current 

effective multiplier for each region (based on McWane invoice data from September 1, 

2007 to December 1, 2007) with the proposed new multiplier. (Tatman, Tr. 1051-1052; 

Tatman, Tr. 392-396; CX 1664 (“final regional multipliers” worksheet); see also CX 

2479 (McCullough, Dep. at 187) (describing draft customer letter (CX 0375) as referring 

to a planned price increase through the increase of multipliers)). 

947.	 The non-Domestic Fittings multipliers announced in McWane’s January 18, 2008 pricing 

letters were below the then-current effective prices in only eight states: New Hampshire, 

New Jersey, Delaware, Maryland, Virginia, Arkansas, South Dakota, and Idaho. 

(Tatman, Tr. 403-404; CX 1664 (“final regional multipliers” worksheet)). 

948.	 The non-Domestic Fittings multipliers announced in McWane’s January 18, 2008 pricing 

letters were above the then-current effective prices in at least 40 states or territories: 

Connecticut (3.6% increase), New York (10.5% increase), Rhode Island (10.7% 

increase), Massachusetts (20.8% increase), Vermont (19.2% increase), Pennsylvania 

(8.8% increase), West Virginia (11.9% increase), Ohio (16% increase), Indiana (13.3% 

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increase), Kentucky (3.7% increase), Alabama (7.4% increase), Georgia (15.3% 

increase), North Carolina (7.7% increase), South Carolina (9.5% increase), Florida (5.5% 

increase), Tennessee (2.7% increase), Mississippi (6.7% increase), Louisiana (3.0% 

increase), Oklahoma (16.2% increase), Missouri (7.6% increase), Kansas (13.1% 

increase), Nebraska (13.4% increase), Michigan (6.5% increase), Minnesota (6.1% 

increase), North Dakota (11.9% increase), Iowa (5% increase), Illinois (1-80 north) 

(13.3% increase), Wisconsin (6.9% increase), Arizona (5.8% increase), New Mexico 

(7.2% increase), Texas (8.2% increase), Utah (33.3% increase), Wyoming (9.9% 

increase), Colorado (8.6% increase), Montana (8.6% increase), Washington (35.5% 

increase), Oregon (31% increase), California (10.7% increase), Nevada (9.3% increase); 

Puerto Rico (12.5% increase). (CX 1664 (“final regional multipliers” worksheet); 

Tatman, Tr. 405-406 (walking through calculation for 35.5% increase in Washington)). 

951.	 On or about Monday, January 14, 2008, Sigma and Star executives received copies of 

McWane’s Friday, January 11, 2008 letter. (CX 0038; McCutcheon, Tr. 2505-2507 

(testifying that he received McWane price letter from a customer); Rybacki, Tr. 3516­

3517, 3557-3558 (testifying that he received a copy of McWane’s January 11, 2008 

letter); CX 1178; CX 1291; Minamyer, Tr. 3156). 

949.	 Overall, the non-Domestic Fittings multipliers announced in McWane’s January 18, 2008 

pricing letters resulted in a weighted average price increase of approximately 8% over 

then-current effective prices. (Tatman, Tr. 359-360, 392-393 (weighted average increase 

was 8%); RX-409 at 0001 (Tatman January 18, 2008 email to McCullough reporting 

8.1% increase); CX 1664 at 002 (“final regional multipliers” worksheet reflecting Mr. 

Tatman’s detailed calculations to determine that the expected impact of the price changes 

was a 8.13% price increase)). 

Sigma Followed McWane’s New Fittings Price Multipliers and 

Accepted McWane’s Invitation to Curtail Project Pricing 

Sigma followed McWane’s new Fittings price multipliers and accepted McWane’s 

invitation to curtail Project Pricing. (Infra ¶¶ 951-970). 

7.2.2 

950. 

952. { 

} 

(CX 1621-A at 117, in camera (Rybacki telephone records); supra ¶¶ 745-747 (detailing 

telephone records); McCutcheon, Tr. 2475-2476, in camera { 

)). 

953.	 On January 24, 2008, Mr. Pais communicated to Mr. Rybacki that McWane was upset 

because of the “overcompetitiveness of the marketplace” and the “downward spiral of 

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pricing in the marketplace.” (Rybacki, Tr. 1131-1132; CX 1145). Mr. Pais knew that the 

downward spiral of prices had occurred through Project Pricing, not through decreases in 

published list prices and multipliers. (Pais, Tr. 2078-2079 (discussing CX 1138 and 

explaining that the price decline that occurred over the two years leading up to 2008 had 

been in “actual multipliers,” not “published multipliers”)). 

954.	 Sigma believed that it was important to eliminate Project Pricing, and to communicate 

Sigma’s intent to do so to the marketplace. (CX 1138; Rybacki, Tr. 3545 (“Mr. Pais 

always suggested that we . . . firm up or eliminate project pricing.”); Rybacki, Tr. 3545 

(“[W]e wanted to do away with project pricing. . . . [W]e wanted to become more 

consistent with our pricing approach that we always did.”)). 

955.	 Sigma viewed Project Pricing as contrary to consistent and disciplined pricing, and was 

trying to curtail Project Pricing throughout 2008. (Rybacki, Tr. 3523-3524, 3545 (Sigma 

wanted to do away with Project Pricing)). 

956.	 Ten days after receiving a copy of McWane’s January 11, 2008 letter announcing 

McWane’s intent to stop Project Pricing, on January 24, 2008, Mr. Pais sent an email to 

Sigma’s regional managers that they should minimize Project Pricing: 

I HAVE URGED LARRY [Rybacki] TO INITIATE A NEW 

COMMITTED AND SERIOUS EFFORT TO NORMALIZE ALL 

PRICING FOR FITTINGS – AT SAME LEVELS – PW AS 

WELL AS OTHER ORDERS, TO ELIMINATE THE 

CONFUSION WE ARE CREATING WITH CUSTOMERS AND 

COMPETITORS, LEADING TO LOWER OVERALL PRICING 

LEVELS. 

Though Tyler’s NEW multipliers are discouraging, this is both a 

lesson and an opportunity [for] Sigma and Star to develop a 

patient and disciplined Marketing approach and demonstrate to 

[McWane] that we are capable of being part of a stable and 

profitab[ility] conscious industry. This is the ‘leadership capital’ 

we created when we acquired PCI and reduced the supply base to 

just 3 -- but, so far, we have NOT been astute enough to derive any 

returns from this capital! 

(CX 1145 at 001 (emphasis added); Rybacki, Tr. 1129, 1133-1134; Pais, Tr. 1920-1925). 

957.	 Specifically, Mr. Pais was encouraging his sales force to “not giv[e] into too many 

requests for discounts.” (Pais, Tr. 1922). Mr. Pais recognized that Sigma might not be 

able to eliminate Project Pricing, but he wanted to minimize it. (Pais, Tr. 2139-2140 

(“[W]e were not trying to eliminate special pricing, we were trying to minimize it . . . .”); 

Pais, Tr. 1921 (“[E]liminating the practice is wishful thinking. I was just trying to have 

them minimize it.”)). 

958.	 Mr. Pais’s instruction to Mr. Rybacki applied to all segments of Sigma’s Fittings 

business. (Pais, Tr. 2068 (“I was trying to prevail on Larry to see how we can reduce the 

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dispersion in the pricing that we just talked about or whether it is through plant work or 

whether it is through more aggressive pricing to some customers, et cetera.”) (emphasis 

added); see also CX 2528 (Pais, Dep. at 263-267) (Sigma sought to turn back the practice 

of special pricing, which had spread into stocking orders from traditional plant work 

segment); RX-687 (Pais, Dep. at 82-83) (“the distributors and everyone alike started 

stocking less and they started showing these so-called lists, RFQs, request for quotation, 

on anything and everything . . . . So I initiated to address the problem. We cannot 

eliminate, of course entirely, let’s minimize it to say, that, look, you don’t have to have a 

special pricing, you have the pricing already, use the same list price because it is the same 

fitting.”)). 

959.	 In the same January 24, 2008 email, Mr. Pais stated that: 

It’s likely that Tyler did wish to make a definite effort to improve 

the multiplier levels -- but, may have based their choices for the 

NEW multipliers on the actual documented competitive pricing 

that they are known to procure proof for, from the customers. 

Unfortunately, the illogical pricing approach used by Star -- and 

hence SIGMA -- for ‘Plant quotes’ with lower ‘special’ multipliers 

may have biased [McWane’s] decisions in pegging the NEW 

multipliers at where they are. 

(CX 1145 at 001). Mr. Pais’s reference to the “illogical pricing approach used by Star” 

refers to Star’s pricing as being “overly aggressive in the marketplace, and they had taken 

project pricing or plant quotes to a new level of -- a new depressed level, and it was hard 

to compete with.” (Rybacki, Tr. 1136-1137). 

960.	 Mr. Pais wanted to convey to Sigma’s regional managers that Sigma’s practice of 

offering Project Pricing was causing its competitors to hold down prices and was hurting 

both Sigma and its competitors, and that Sigma should therefore minimize its use of 

Project Pricing. (Pais, Tr. 1920-1921 (“So because we were indulging in this practice 

which was not smart anymore, not relevant, we felt this was forcing our other competitors 

to keep the price at a depressed level and hurting us and perhaps themselves, too.”)). 

961.	 Mr. Pais’s reference in his January 24, 2008 email to a “stable and profitab[ility] 

conscious industry” referred to the stability of Fittings pricing, among other things. (CX 

1145 at 001; Pais, Tr. 1924 (“as human beings, we all love stability in a lot of ways. . . . 

And pricing is one, the volume that we get and the predictability of the business . . . we 

would like to at least expect a certain amount of business from [customers] rather than 

constantly trying to get every order, every day, every hour.”)). 

962.	 Mr. Pais’s statement in his January 24, 2008 email that “we acquired PCI and reduced the 

supply base to just 3” referred to Sigma’s acquisition of its former competitor PCI, which 

had reduced the number of primary Fittings suppliers to Sigma, Star, and McWane. (CX 

1145 at 001-002; Pais, Tr. 1924-1925). 

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963.	 Mr. Rybacki understood that Mr. Pais was asking him and the Sigma sales team to pull 

back on Project Pricing. (Rybacki, Tr. 1129; CX 2531 (Rybacki, Dep. at 227-228) (Mr. 

Pais’s January 24, 2008 email (CX 1145) reflects a request by Mr. Pais for Sigma to pull 

back on Project Pricing); see also CX 2531 (Rybacki, Dep. at 224-225) (Sigma sought to 

reduce the incidence of Project Pricing in 2008 by “hold[ing] the ground” and “hold[ing] 

it to list and multiplier”)). 

964.	 Mr. Rybacki further testified that Mr. Pais’s reason for pulling back on Project Pricing 

was that it was “upsetting the gorilla in the room,” McWane: 

Because Star’s pricing was ruining the market; and as a result, it 

was upsetting the gorilla in the room, which was [McWane], 

because they’re the biggest, McWane’s the biggest, and it was 

obviously hurting us as well; and that’s the reason why [] he 

wanted us to normalize or try to standardize on the list and 

multiplier to create some kind of stability. 

(CX 2531 (Rybacki, Dep. at 229)). 

965.	 On or about January 29, 2008, Sigma issued a letter to its customers that rescinded its 

previously announced new Fittings list price and followed McWane’s multiplier increase, 

effective February 25, 2008. (CX 1189 at 002; Rybacki, Tr. 1125-1127, 3518-3519; CX 

2531 (Rybacki, Dep. at 220) (“Q. So ultimately in January of 2008 . . . you retracted the 

list price increase and went out with some multiplier increases? A. Correct.”)). 

966.	 Sigma’s January 29, 2008 letter stated that Sigma would “follow suit” and copy 

McWane’s new published prices that would be effective February 25, 2008, except where 

the new multiplier would be below Sigma’s current pricing. The letter noted that “every 

manufacturer in the Waterworks Industry needs [a price increase],” and that “[w]e 

apologize for the confusion and lack of discipline our segment of the Industry has shown 

as we at SIGMA Corporation are committed to make this a more profitable business for 

all.” The letter also stated that “[i]t is our intent to raise prices in 2008.” The full text of 

the letter read as follows: 

Dear Valued Customers, 

As you are all aware, SIGMA Corporation was intending to put out 

a new list price sheet on January 2, 2008 which showed a 

significant increase in all our products due to the increased cost of 

raw materials, freight, personnel, etc. When one of our competitors 

chose not to have a list price increase but rather a multiplier 

increase, we decided to follow suit and on February 25 your new 

multipliers will be in effect for almost every territory. The key 

word is “almost” as a few of territory multipliers are below what 

you currently receive from us and some are in fact well below. 

It is our intent to raise prices in 2008, not because we arbitrarily 

feel like raising them but because every manufacturer in the 

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Waterworks Industry that has Iron products needs one. 

Manufacturing needs a price increase, distribution needs a price 

increase, and with product links such as Ductile Iron Pipe and 

Valve & Hydrants you’ve already witnessed significant charges. 

We think it’s unwise and irresponsible to lower multipliers and 

devalue your inventory, so your Regional Managers will send you. 

new multipliers in the next few days as long as they exceed your 

current ones. We apologize for the confusion and lack of discipline 

our segment of the Industry has shown as we at SIGMA 

Corporation are committed to make this a more profitable business 

for all. Thanks for your support and understanding and we wish 

you success throughout 2008 and beyond. 

(CX 1189 at 002; Rybacki, Tr. 1126-1127, 3518-3519). 

967.	 Sigma’s January 29, 2008 letter to its customers was a commitment to curtail Project 

Pricing and to adhere to published pricing levels. In apologizing for Sigma’s “lack of 

discipline,” Mr. Rybacki was referring to Sigma’s lack of consistency in setting selling 

prices, and failure to stick to published prices. (Rybacki, Tr. 3520). By sending the 

letter, Sigma was committing to become more consistent in pricing, including by keeping 

prices at the published multipliers. (Rybacki, Tr. 3520-3522). 

968.	 On or about February 1, 2008, Sigma issued letters to its customers announcing new 

region-specific multipliers, effective February 18, 2008, pursuant to its January 29, 2008 

letter. The letters noted that “All municipal bids will be honored through the length of 

the contract,” and that “[j]obs quoted prior to this announcement will be honored through 

March 1, 2008.” (CX 0848 at 002; Minamyer, Tr. 3196). 

969.	 Sigma communicated to its customers its desire to clean up Project Pricing in 2008. 

(Rybacki, Tr. 3546). 

970.	 On April 26, 2008, Sigma’s regional managers asked Mr. Rybacki for an update on 

implementation of the multiplier increase and guidance on Project Pricing in light of the 

response from competition to Sigma’s curtailment of Project Pricing. (CX 1127 at 002 

(proposed agenda items for Sigma regional manager meeting included “Fittings 

Multiplier & Pricing Strategy - How is implementation of multiplier map progressing? 

Do we refrain from job pricing? Is competition responding?”)). 

7.2.3	 Star Followed McWane’s New Fittings Price Multipliers and 

Accepted McWane’s Invitation to Curtail Project Pricing 

971.	 Star followed McWane’s January 2008 Fittings price multipliers and accepted McWane’s 

invitation to curtail Project Pricing. (Infra ¶¶ 972-1021). 

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7.2.3.1 Star Instructed Its Sales Force to Curtail Project Pricing 

972.	 Star instructed its sales force to curtail Project Pricing in response to McWane’s January 

2008 invitation to collude. (Infra ¶¶ 973-990). 

973.	 Star anticipated that McWane would implement the price increase McWane announced 

on January 22, 2008, and Star planned to match the increase. (CX 0752; Minamyer, Tr. 

3242-3243). 

974.	 Mr. McCutcheon of Star understood that McWane’s January 11, 2008 letter (CX 1178) 

announced McWane’s intention to stop Project Pricing, and he forwarded it to his 

regional managers so that the Star sales force would have an understanding of what Star’s 

competitors were doing. (CX 2539 (McCutcheon, Dep. at 154); CX 2538 (McCutcheon, 

IHT (Vol. 2) at 439)). 

975.	 Mr. Minamyer considered McWane’s January 11, 2008 letter (CX 1178) as a possible 

communication to Sigma and Star to notify them that McWane intended to end Project 

Pricing. (CX 2525 (Minamyer, IHT at 71, 76)). At his investigational hearing, Mr. 

Minamyer testified that he considered whether Mr. Jansen’s January 11, 2008, letter was 

a signal to Star when he received it. (CX 2525 (Minamyer, IHT at 77)). However, at his 

later deposition, Mr. Minamyer changed his testimony and testified that he did not 

consider Mr. Jansen’s January 11, 2008, letter as a possible signal to Star. (CX 2526 

(Minamyer, Dep. at 130) (admitting that he was changing the testimony he gave at his 

investigational hearing)). 

976.	 Before Star was willing to pull back or stop Project Pricing, it wanted some 

understanding that Sigma and McWane would not undercut Star with Project Pricing of 

their own. (CX 2526 (Minamyer, Dep. at 119-120)). McWane’s letter gave Star that 

assurance, and Star proceeded to curtail Project Pricing. (CX 2526 (Minamyer, Dep. at 

120) (“And that was your plan in 2008 when you announced to your sales force that you 

were going to stop project pricing; correct? A. That we were going to try to stop project 

pricing. Q. And you did that with some understanding that Sigma and McWane would 

also be stopping project pricing . . . is that true? A. We were hoping they would.”) 

(objection omitted)). 

977.	 In a January 22, 2008 email, Mr. Minamyer instructed Star’s division managers to curtail 

Project Pricing, stating that “[o]ur goal is to take a price increase and to stop project 

pricing.” (CX 0752 at 001; McCutcheon, Tr. 2388-2389; Minamyer, Tr. 3160 (e-mail 

was a plan to react to information from McWane)). 

978.	 Mr. Minamyer also announced to his division managers that Star, like McWane, would 

honor existing Project Pricing to its customers through March 1, 2008. (CX 0752 at 001; 

CX 0848; CX 2526 (Minamyer, Dep. at 148); Minamyer, Tr. 3168-3169). 

979.	 Mr. Minamyer’s January 22, 2008 email informed Star’s division managers that he would 

require written proof of a competitor’s lower price before he would approve a Project 

Price request. (CX 0752 at 001 (“We will not be project pricing unless we see firm 

documentation that there is a project price or a buy plan that is off the state multiplier.”); 

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CX 2526 (Minamyer, Dep. at 147); Minamyer, Tr. 3168; see also CX 0815 (Minamyer 

February 23, 2008 email reiterating that documentation of competition prices would be 

required for Project Pricing approval)). 

980.	 Mr. Minamyer’s January 22, 2008 email was intended to stabilize Fittings prices, because 

“this is what is best for the industry and that we need to be part of the effort to help our 

industry. We will not be damaging the industry due to lack of discipline.” (CX 0752 at 

001; Minamyer, Tr. at 3170 (“Q. So was this plan an effort to stabilize prices? A. It was 

to stabilize our pricing. Q. To stabilize Star’s pricing? A. Yes. Q. And where you say -- 

where you refer to a lack of discipline, is that a reference to pricing discipline? A. Yes, 

sir. Q. And is controlling project pricing a form of project -- pricing discipline? A. Yes, 

sir.”)). 

981.	 Mr. Minamyer’s intent in sending his January 22, 2008 email to Star’s division managers 

was to minimize Project Pricing by Star’s sales force. (CX 0752 at 001; McCutcheon, Tr. 

2390 (Mr. McCutcheon understood Mr. Minamyer’s intent was to minimize Project 

Pricing by Star’s sales force); CX 2538 (McCutcheon, IHT (Vol. 2) at 425) (the email 

“looks to me like it is Matt [Minamyer]’s attempt to minimize project pricing”)). 

982.	 Mr. Minamyer’s January 22, 2008 email to Star’s division managers instructing them to 

curtail Project Pricing was prompted by the statement in McWane’s January 11, 2008 

letter that “it is our intention going forward to sell all products only off the newly 

published multipliers.” (CX 1178; CX 0752 at 001; CX 2538 (McCutcheon, IHT (Vol. 

2) at 425) (“[M]y guess is that this thought came from reading McWane’s letter.”)). 

983.	 On or about January 23, 2008, Mr. Minamyer repeated his instruction in an email to 

Star’s division managers and territory managers, including Mr. Leider and Mr. Berry, and 

instructed them “to make sure they are telling their customers that . . . we can no longer 

project price.” (CX 0034 at 002; McCutcheon, Tr. 2399). 

984.	 Mr. Berry, a Star division manager, received a copy of Mr. Minamyer’s January 22 and 

23, 2008, emails instructing Star’s division managers that “Our goal is to take a price 

increase and to stop project pricing,” and forwarded them to his territory managers, 

instructing them to “Know these procedures.” (RX-691 (Berry, Dep. at 49, 105); RX-027 

at 0001-0003). 

985.	 As of June 19, 2008, Mr. Minamyer reiterated his instruction to Star’s division and 

territory managers that “we can no longer project price.” (CX 2254 at 001, 003 

(Minamyer email to Star’s sales force to prepare sales force for another round of price 

increases)). 

986.	 Mr. Minamyer believed that all of the Fittings competitors would have to eliminate 

Project Pricing in order for the industry to stabilize Fittings prices. (Minamyer, Tr. 3174; 

CX 2526 (Minamyer, Dep. at 141-142). 

987.	 Mr. McCutcheon and Mr. Minamyer were the Star managers with authority to establish 

Star’s new policy regarding Project Pricing. Mr. Minamyer testified that he believed that 

Mr. McCutcheon, and not himself, set the new policy to curtail Project Pricing. 

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(Minamyer, Tr. 3166-3167; CX 2525 (Minamyer, IHT at 143-144) (Mr. Minamyer 

believes the idea came from Mr. McCutcheon)). 

988.	 Mr. McCutcheon, however, denied that he ever instructed Mr. Minamyer to stop Project 

Pricing, (CX 2539 (McCutcheon, Dep. at 152)), or that he ever told Mr. Minamyer to tell 

Star’s sales force to stop Project Pricing. (CX 2539 (McCutcheon, Dep. at 152); CX 

2538 (McCutcheon, IHT (Vol. 2) at 425-426) (that there was “no way” that Mr. 

McCutcheon would have told Mr. Minamyer to “stop project pricing,” and that he didn’t 

“know what Matt was thinking, but it did not come from me.”)). 

989.	 Regardless of whose idea it was to adopt a strategy of curtailing Project Pricing, it is 

undisputed that Mr. McCutcheon took no action to countermand Mr. Minamyer’s clear 

instructions to curtail Project Pricing in emails to Star’s sales force on January 22, 2008, 

January 23, 2008, and June 20, 2008. (CX 0752 at 001 (January 22, 2008 email copied to 

Mr. McCutcheon); CX 0034 at 001 (January 23, 2008 email copied to Mr. McCutcheon); 

CX 2254 at 001 (June 19, 2008 email copied to McCutcheon)). 

990.	 In November 2008, Star finally reinstated its practice of aggressively Project Pricing. 

(CX 0831 (email from Minamyer instructing district managers, “We will take every order 

we can after exhausting all avenues to document the competitors pricing . . . . [W]e will 

no longer tolerate the competition being irresponsible in the market and being undersold 

as a result.”)). 

7.2.3.2 Star Centralized Its Pricing Authority 

991.	 Star centralized its pricing authority in response to McWane’s January 2008 invitation to 

collude. (Infra ¶¶ 992-996). 

992.	 Prior to McWane’s January 11, 2008 price increase announcement, Star’s national sales 

manager, Mr. Minamyer, had delegated authority for Project Pricing to his division 

managers. Starting in January 2008, Mr. McCutcheon asked Mr. Minamyer to be 

personally involved in the approval of Project Pricing. (McCutcheon, Tr. 2393-2394 

(stating that it “was really my idea to have him more involved”); McCutcheon, Tr. 2512 

(McCutcheon was pressuring Minamyer “to be more involved with special pricing and to 

be more diligent in the special pricing process”); CX 2539 (McCutcheon, Dep. at 152) (“I 

told him that he needed to personally get involved.”); CX 0752 at 001). 

993.	 Star centralized pricing authority with Mr. Minamyer, and limited the discretion of its 

sales force to offer discounts through Project Pricing. In his January 22, 2008 email to 

Star’s division managers instructing them to curtail Project Pricing, Mr. Minamyer stated 

that “All project pricing has to go through me . . . . This is an effort to do the right thing 

for the industry.” (CX 0752 at 001; McCutcheon, Tr. 2393-2394). This announcement 

made Mr. Minamyer the central authority for approving Star’s Project Pricing. (CX 0752 

at 001; Minamyer, Tr. 3167-3168). 

994.	 In a follow up email the next day, January 23, 2008, Mr. Minamyer reiterated the 

procedure for project pricing: “Any [multiplier] that the [division manager] wants to be 

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lower than the state [multiplier] has to be done with a pink and approved by Matt.” (CX 

0034 at 001; McCutcheon, Tr. 2398; Minamyer, Tr. 3177). 

995.	 Mr. Minamyer’s approval was also required to extend any prior pricing arrangements 

past the March 1, 2008 expiration date for old pricing that McWane had announced. (CX 

0034 at 002 (“The DM’s will prepare their customers to take this material by March 1st 

or the pricing will expire. Any exceptions have to go through Matt.”); McCutcheon, Tr. 

2398; CX 1178 (McWane January 11, 2008 letter stating that “[j]obs quoted prior to this 

announcement will be honored through March 1, 2008”)). 

996.	 In an April 29, 2008 presentation to McWane’s General Manager’s Meeting covering the 

first four months of 2008, Mr. Tatman reported that Star and Sigma removed pricing 

authority from direct sales personnel. (CX 2047 at 020). 

7.2.3.3	 Star Announced to Its Customers That It Would Match 

McWane’s Multiplier Increase and Curtail Project Pricing 

997.	 Star announced to its customers that it would match McWane’s January 2008 announced 

multiplier increase and curtail Project Pricing. (Infra ¶¶ 998-1008). 

998.	 On January 29, 2008, Mr. Minamyer forwarded to Star’s division managers a copy of 

McWane’s new national blended Fittings multiplier map, effective February 18, 2008. 

Star’s pricing model was to match McWane’s multipliers. (CX 0035 at 001, 003; 

Minamyer, Tr. 3184-3185). 

999.	 Beginning January 31, 2008, Star informed its major customers that it would be matching 

McWane’s announced Fittings multiplier increases effective February 18, 2008, and that 

it would not offer Project Pricing. (E.g., CX 1566 at 001 (January 31, 2008 email to HD 

Supply); CX 2300 at 001 (February 2, 2008 email to TDG); see also CX 2537 

(McCutcheon, IHT (Vol. 1) at 56) (HD Supply is Star’s largest customer)). 

1000.	 In a January 31, 2008 email regarding Fittings pricing to Mr. Hixon and Mr. Taylor, two 

regional managers for HD Supply, Star division manager Mr. Leider forwarded a copy of 

McWane’s new multiplier maps and stated that Star would be “raising or matching all 

fitting numbers to match Tyler effective Feb 18th,” and that there would be “NO 

UTILITY PROJECT PRICING NATION WIDE.” (CX 1566 at 001 (emphasis added); 

McCutcheon, Tr. 2409-2410; Minamyer, Tr. 3184-3185). 

1001.	 Mr. Leider’s January 31, 2008 email to HD Supply was consistent with Mr. Minamyer’s 

instruction to the sales force that Star should tell customers that it would no longer offer 

Project Pricing. (CX 1566 at 001; CX 2525; Minamyer, Tr. 3186-3187 (Leider email 

was consistent with Minamyer instructions)). 

1002.	 On February 2, 2008, Mr. Minamyer sent an email to Rick Fairbanks, the administrative 

head of the TDG Distributor group, informing TDG and its member Distributors that, as 

part of its effort to create an “even playing field on up front pricing with our competitors” 

and “bring stability to the fitting market,” Star would be eliminating Project Pricing as of 

March 1, 2008: 

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Our plan is to adjust multipliers to be on an even playing field on 

up front pricing with our competitors. We will adjust various 

multipliers across the country to be effective on 2-18-08, ship all 

existing special projects before March 1st, and have no more 

project pricing after March 1st. . . . We are working extremely 

hard to bring stability to the fitting market.” 

(CX 2300 at 001 (emphasis added); Minamyer, Tr. 3188-3191; McCutcheon, Tr. 2400; 

CX 2539 (McCutcheon, Dep. at 162); CX 2526 (Minamyer, Dep. at 154-156)). 

1003.	 “Up-front pricing” in Mr. Minamyer’s February 2, 2008 email referred to the standard list 

price as adjusted by the published multiplier. (Minamyer, Tr. 3190). 

1004.	 When Mr. Minamyer wrote in his February 2, 2008 email that Star was “working 

extremely hard to bring stability to the fitting market,” he was referring to price stability. 

(Minamyer, Tr. 3192-3193). 

1005.	 As they had with HD Supply and TDG, Mr. Minamyer and his sales team communicated 

the message that Star would no longer offer Project Pricing after March 1, 2008 to all of 

Star’s customers. (Minamyer, Tr. 3193; CX 2526 (Minamyer, Dep. at 156)). 

1006.	 Star wanted everybody, including McWane and Sigma, to know that Star was increasing 

its multipliers and curtailing Project Pricing. (CX 2526 (Minamyer, Dep. at 168-169)). 

Star understood that curtailing Project Pricing to bring pricing stability to the Fittings 

market would work only if McWane also curtailed Project Pricing; if McWane did not 

stop Project Pricing, Star would have to “follow [McWane’s] price down.” (CX 2526 

(Minamyer, Dep. at 168)). 

1007.	 An exception to Star’s policy curtailing Project Pricing as of March 1, 2008 was any 

municipal contract, which Star had previously indicated it would honor for a period after 

March 1, 2008. (CX 2300; Minamyer, Tr. 3191). Municipal contracts (whereby Star 

would commit to a certain Fittings price to a Distributor for use with a certain 

municipality) were typically one to three years long. For these contracts, Star used 

special pricing request forms (“pinks”) to ensure that its internal billing system tracked 

the appropriate price for the term of that contract. (Minamyer, Tr. 3191). 

1008.	 On February 6, 2008, Star issued letters to its customers specifying the multiplier 

increases that it would implement to match McWane’s multiplier increases, effective 

February 18, 2008. (CX 2336 at 001; CX 0893 at 001; Minamyer, Tr. 3193-3195; 

McCutcheon, Tr. 2408 (Star’s price announcement in January 2008 matched the prices 

reflected on McWane’s February 18, 2008 multiplier pricing map, as was circulated to 

Star’s division managers on January 29, 2008 by Mr. Minamyer)). (CX 0035 at 001, 

003). 

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7.2.3.4	 Star Curtailed Its Project Pricing and Sought to Ensure That 

McWane Noticed 

1009.	 Star curtailed its Project Pricing, and sought to ensure that McWane noticed that 

curtailment. (Infra ¶¶ 1010-1014). 

1010.	 At Mr. Minamyer’s request, Ms. Garey prepared an internal report showing those 

projects where Star had extended Project Pricing to its customers, and conveyed that 

information to Mr. Minamyer in January 2008. (CX 0034 at 002; CX 0847 at 001; 

Minamyer, Tr. 3178-3180). 

1011.	 Mr. Minamyer informed Star’s sales force that they should use Ms. Garey’s January 2008 

report to identify which of their customers had previously been offered Project Prices, tell 

those customers that Star could no longer offer Project Pricing after March 1, 2008, and 

request that the customers accept shipment by March 1, 2008 for all Fittings for which 

they had been previously offered Project Prices. (CX 0847 at 001; CX 0034 at 002; 

Minamyer, Tr. 3179-3180). 

1012.	 Mr. Minamyer wanted customers to accept shipment of Project Priced products by March 

1, 2008, so that McWane could “figure it out” that Star had accepted McWane’s 

invitation to curtail Project Pricing. (CX 0847 at 001; Minamyer, Tr. 3180-3181). 

1013.	 Specifically, in a January 23, 2008 email to Star’s division managers, Mr. Minamyer 

instructed his sales force to “get creative” to get the customers to take material that was 

subject to preexisting Project Pricing before March 1, 2008, the date through which 

McWane was honoring prior Project Pricing (CX 1178). Mr. Minamyer wrote, “I know 

this will be difficult but it is important that we all work together to get it done as if they 

linger, Tyler won’t be able to figure it out and think we didn’t take the increase.” (CX 

0847 at 001; Minamyer, Tr. 3180-3181). 

1014.	 Throughout 2008 and up until at least November 2008, Star was more disciplined about 

offering Project Pricing and required documentation of competitors offering Project 

Pricing before offering their own Project Prices. (CX 2526 (Minamyer, Dep. at 157, 

174)). 

7.2.3.5	 Star Monitored McWane’s and Sigma’s Compliance with the 

Commitment to Curtail Project Pricing 

1015.	 Star monitored McWane’s and Sigma’s compliance with their commitment to curtail 

Project Pricing (Infra ¶¶ 1016-1021). 

1016.	 From January 2008 through November 2008, Mr. Minamyer insisted on documentation 

that McWane or Sigma had offered a discount before he would approve Project Pricing 

by Star. (CX 2526 (Minamyer, Dep. at 157)). Mr. Minamyer reminded Star’s sales force 

“on more than one occasion” that he wanted documentation that McWane or Sigma had 

offered Project Pricing to a Distributor before he would approve Project Pricing by Star. 

(CX 2526 (Minamyer, Dep. at 157)). Whenever a Distributor told Star that either 

McWane or Star had offered Project Pricing, Star representatives were instructed to ask 

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the Distributor for written documentation of the offer by McWane or Sigma. (CX 2526 

(Minamyer, Dep. at 175)). 

1017.	 Mr. Minamyer requested reports from his sales personnel who monitored whether Sigma 

and McWane were also curtailing Project Pricing. (CX 0856 at 001 (Minamyer writing 

to his division managers on March 11, 2008: “Due last Friday were any issues we had 

with Sigma on how they are handling the Mult increases.”); Minamyer, Tr. 3197-3199 

(discussing CX 0856); see also CX 0525 (Minamyer writing to his division managers on 

May 6, 2008: “We have to keep our focus on the pricing and continue to be diligent. I 

see it getting a little looser and am concerned that we won’t hold this increase. Don’t let 

our competitors practices force us to fail. One competitor is being pretty strong and one 

is being pretty weak on pricing. Continue to have the talks with your customers at the 

highest level to try to hold pricing. All Mfg’s are taking increases so it is not an 

unfamiliar conversation to them.”); McCutcheon, Tr. 2546-2547 (discussing CX 0525)). 

1018.	 In response to Mr. Minamyer’s March 11, 2008 email asking for any reports on any 

issues with Sigma “handling the Mult increases,” Star’s Southwestern division manager, 

Shaun Smith, responded on March 11, 2008 that “It seems as though they have been 

pretty discipline[d] in my Division” and “everyone seems to be playing fair.” (CX 0856 

at 001). By “playing fair,” Mr. Smith meant “pricing per their published multiplier 

letters.” (Minamyer, Tr. 31995). 

1019.	 Another of Star’s division managers, Ramon Prado, reported to Mr. Minamyer on March 

6, 2008 that as of the week ending February 29, 2008, “it doesn’t appear that Sigma or 

Tyler is cheating on the new fitting multipliers.” In other words, Mr. Prado did not 

believe that Sigma and McWane were offering Project Pricing lower than their published 

multipliers. (CX 1692 at 002; Minamyer, Tr. 3199-32016 (“Q. And if -- would you 

understand that if they priced below their published letter, that would be cheating? A. 

That’s what we called it. Yes.”); CX 2526 (Minamyer, Dep. at 201-202) (“Q. And what 

he was telling you here is that they were adhering to the published multipliers? A. I 

believe that is what he meant. Q. They weren’t cheating by undercutting them? A. It’s 

still early, but it doesn’t appear that they are. Right.”)). 

1020.	 In response to an April 18, 2008 sales activity report, Shaun Smith, a Star division 

manager, instructed his territory managers to offer Project Pricing only if they could 

confirm competitor “cheating.” “You know the gig, ask them why? If they give you 

5

 The cited trial testimony regarding the out of court statement of Mr. Smith is a business report 

from Mr. Smith to his superior and is cited as evidence that Mr. Minamyer received that report 

and of how he interpreted the report, and not to prove the truth of the matter asserted in the 

report. (See Minamyer, Tr. 3198-3199). 

6

 The cited trial testimony regarding Mr. Prado’s out of court statement to his supervisor Mr. 

Minamyer that Sigma and McWane did not appear to be cheating is cited as evidence that Mr. 

Prado made such a report, and not to prove the truth of the matter asserted in the report. (See 

Minamyer, Tr. 3200-3201). 

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proof the other guys are cheating, then we will match!” (CX 1696 at 001). This reflected 

Star’s new policy of Project Pricing only if there was “proof that the other guy was 

cheating.” (Minamyer, Tr. 3203-3204). 

1021.	 On June 30, 2008, Mr. Prado reported to Mr. Minamyer that as of the week ending June 

27, 2008, he had “[c]onfirmed that Sigma has been cheating in Florida with fitting 

multipliers,” and was also “pretty certain that Tyler is doing the same.” (CX 1693 at 001, 

002; Minamyer, Tr. 3218-3219 (confirming that “cheating” referred to “offering prices 

below their published list times multiplier”)). 

7.2.4	 The Suppliers’ Centralization of Pricing Authority and Curtailment 

of Project Pricing Was an Abrupt Change from Historical Business 

Practices 

1022.	 Sigma’s, Star’s, and McWane’s centralization of pricing authority and curtailment of 

Project Pricing represented an abrupt change from their historical business practices. 

(Infra ¶¶ 1023-1028). 

1023.	 Prior to 2008, Star had always used Project Pricing in selling Fittings. (CX 2539 

(McCutcheon, Dep. at 164) (“Being number three, we have to give a value to the 

customer; and we have chosen for that value to be price. And we have always project 

priced.”)). 

1024.	 Traditionally, prior to 2008, Star had not used Project Pricing to meet competition in only 

isolated instances, but instead Project Pricing was central to its overall business strategy 

in the Fittings Market. (McCutcheon, Tr. 2387 (Project Pricing was “a significant part of 

Star’s competitive strategy”)). 

1025.	 In light of its past practices and its position in the industry as the smallest supplier, Star’s 

own executives viewed its decision to stop project pricing as “unusual” and “bizarre.” 

(CX 2539 (McCutcheon, Dep. at 153-155) (“unusual”); CX 2538 (McCutcheon, IHT 

(Vol. 2) at 452) (“bizarre”); CX 2536 (Leider, Dep. at 75) (not recalling any instance in 

the four years he had previously been with Star that he had been instructed that Star’s 

goal was “to stop project pricing”); see also infra ¶ 1062, 1063). 

1026.	 As Star’s national sales manager from 2004 to June 2009, Mr. Minamyer generally did 

not exercise the authority to approve Project Pricing. (RX-684 (Minamyer, IHT (Vol. 2) 

at 107). Instead, Mr. Minamyer generally delegated that authority to Star’s division 

managers or territory mangers throughout his tenure. (CX 2538 (McCutcheon IHT (Vol. 

2) at 373-374 (After Mr. Minamyer resigned in June of 2009, “I took over his spot, [and] 

I started changing the – I started tightening up on the approval process.”)). Mr. 

Minamyer delegated the authority to approve Project Pricing to the division managers 

and territory managers because he had “faith” that they could decide when it was 

necessary for Star to offer Project Pricing to get the business. (RX-684 (Minamyer, IHT 

at 29 (“It would more or less be faith in the people working for me that they could make 

the correct judgment.”)). 

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1027.	 At Sigma, Project Pricing had grown in 2007, including non-plant work Fittings jobs. 

Beginning in January, 2008, Sigma changed course and sought to end that practice when 

Mr. Pais set off “A NEW COMMITTED AND SERIOUS EFFORT TO NORMALIZE 

ALL PRICING FOR FITTINGS.” (CX 1145 at 001 (emphasis in original); Rybacki, Tr. 

1129, 1133-1134; CX 2528 (Pais, Dep. at 263-267) (Sigma sought to turn back the 

practice of special pricing, which had spread into stocking orders from traditional plant 

work segment); RX-687 (Pais, Dep. 82-83) (“[T]he distributors and everyone alike 

started stocking less and they started showing these so-called lists, RFQs, request for 

quotation, on anything and everything . . . . So I initiated to address the problem. We 

cannot eliminate, of course entirely, let’s minimize it to say, that, look, you don’t have to 

have a special pricing, you have the pricing already, use the same list price because it is 

the same fitting.”); see also CX 1439 at 002 (“We also need to review our [Plant Work] 

quotations to check and reverse any deep erosion in NET pricing, even as we use 

multipliers to do so! McWane does NOT have a PW activity and doesn’t understand why 

and how we can give a lower ‘special job’ price!”); Pais, Tr. 1920-1925 (“eliminating 

[Project Pricing] is wishful thinking. I was just trying to have them minimize it.”)). 

1028.	 For McWane as well, centralization of pricing authority and curtailment of project 

pricing was a change. Fittings suppliers, including McWane, had always project priced. 

CX 2485 (Walton, Dep. at 114) (“[T]here was job pricing somewhere in the country all 

the time.”); CX 2483 (Tatman, IHT at 39) (project pricing increasing over the last few 

years); Jansen, Dep. 61-62 (since late 2006 , when Distributors began buying smaller 

numbers of Fittings for their inventory, project pricing had increased). Before McWane’s 

2008 centralization of pricing authority, McWane’s sales representatives had authority to 

offer Project Pricing up to a couple of percentage points. After January 2008, the sales 

representatives had to obtain approval from Mr. Napoli, McWane’s new pricing 

coordinator, before offering Project Pricing to customers. (CX2480 (Napoli, Dep. at 46­

48, 50); see also supra §§ 7.1.2, 7.2.1). 

7.2.5	 McWane, Sigma, and Star Directly Communicated with Each Other 

to Implement the Agreement, and Complained When They Perceived 

“Cheating” 

1029.	 McWane, Sigma, and Star communicated directly with each other to implement the 

agreement, and complained when they perceived each other cheating. (Infra ¶¶ 1030­

1040; see also infra ¶¶ 1439-1450; supra ¶ 943). 

1030.	 {

 (See supra ¶¶ 884, 894, 895, 922, 952; infra 

¶¶ 1033, 1034, 1040, 1088; supra § 6.4.1.3 (listing phone calls)). 

1031.	 On March 5, 2008, Jim Stohr, Sigma’s branch manager for the southwest region, 

complained to his supervisor, Sigma’s southwest regional manager Al Richardson, about 

an incident of Project Pricing by a “rogue” McWane salesman, and asked for assistance 

from his superiors: 

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We have 2 reliable sources in Arkansas with 2 separate HD 

locations telling us that Shane Dubose with Tyler is giving them a 

.23 multiplier. . . . The customer in AR even confirmed that our 

price and Star was the same. We have refused to match pricing at 

this time but need your assistance to see if we can get this ceased 

or should we lower ourselves to the rogue Tyler salesman’s tactics. 

This is a market that should actually be .30 but Tyler has it set at 

.27 but are obviously not living up to that. 

Please give us your thoughts. Can Larry [Rybacki] make a call 

and see if this can be stopped. 

(CX 1726 at 001 (emphasis added)). Mr. Richardson forwarded Jim Stohr’s March 5, 

2008 email (CX 1726) at 6:21 a.m. on March 6, 2008 to Mr. Rybacki and the Sigma 

RM6 email group, copying Mr. Pais and Mr. Bhattacharji. (CX 1726 at 001). Mr. 

Rybacki testified that he does not recall this email, and that he gets many emails like this 

from the sales force. (Rybacki, Tr. 3528-3529). 

1032.	 A Sigma regional manager responded to Mr. Richardson’s email, writing that “Jim 

should not write that last sentence!” (CX 1726 at 001 (referring to Mr. Stohr’s question 

of whether Larry Rybacki can call McWane to stop the Project Pricing)). 

1033. {

 (CX 1621-A at 107, in camera (Rybacki telephone 

records); supra ¶ 751 (detailing telephone records); Rybacki, Tr. 3633, in camera). 

1034.	 {

 (CX 1621-A at 096, 

in camera (Rybacki telephone records); supra ¶ 752 (detailing telephone records); 

Rybacki, Tr. 3634, in camera). 

1035.	 On March 8, 2008, Mr. Tatman complained to Mr. Rona of Sigma that Project Pricing 

was compromising the new Fittings prices. Mr. Tatman made his complaint about 

Fittings prices in the course of a conversation on a separate topic – regarding McWane’s 

offer to sell private label Fittings and glands to Sigma. Mr. Rona relayed Mr. Tatman’s 

message to Mr. Pais: “[Mr. Tatman] said he hears that some of the new prices in the 

market are being compromised with deals. He hopes the market will improve and hopes 

[we] do our part.” (CX 1124 at 002; Rona, Tr. 1609-1613; CX 2530 (Rona, Dep. at 137); 

see also infra §§ 7.8.1, 7.8.2 (describing subsequent instances of competitors monitoring 

each other and complaining about cheating)). Mr. Tatman testified that he has no 

recollection of such a conversation. CX 2484 (Tatman, Dep. at 106-107; Tatman, Tr. 

422). 

1036.	 At a dinner meeting between Mr. McCutcheon and Mr. Pais, which Mr. McCutcheon 

testified occurred after a DIFRA meeting, Mr. Pais proposed that Sigma and Star each 

keep their prices within two multiplier points of McWane’s published pricing, and then 

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all of the suppliers could be less aggressive with pricing. Specifically, Mr. McCutcheon 

testified at trial that, 

Victor had a thought that if we, ‘we’ being Sigma and Star, stayed 

within two points of McWane, then they would stop being as 

aggressive and Sigma and Star would stop being as aggressive. 

(McCutcheon, Tr. 2373-2376); CX 2538 (McCutcheon, IHT (Vol. 2) at 227) (Pais’s 

statement occurred at a dinner in Birmingham at a DIFRA meeting); see also CX 2538 

(McCutcheon, IHT (Vol. 2) at 232) (Mr. McCutcheon had numerous phone calls in 

which Mr. Pais said that Star “need[ed] to stay within two to three points of McWane.”)). 

1037.	 At his investigational hearing, Mr. McCutcheon elaborated further about this dinner 

meeting, and testified that Mr. Pais told him: 

[W]e should agree to stay within to two to three points, discount 

points, of McWane, and if we did, he felt that they would behave 

differently and not be so overbearing towards us. That if we were 

good, then they would be good -- they would treat us better and we 

could live happily ever after. . . . [H]e just said that they would 

treat us differently and it would firm up the market and that there 

was a lot of benefit to it. 

(CX 2538 (McCutcheon, IHT (Vol. 2) at 227). But see Pais, Tr. 1957-1959 (denying that 

he proposed to Mr. McCutcheon staying within to two to three points of McWane’s 

prices, and claiming that, at their meeting in Birmingham, it was actually Mr. 

McCutcheon who was “berating” Sigma and “accusing [Sigma] of dropping price.”)). 

1038.	 On April 2, 2008, Mr. Minamyer reported to Mr. McCutcheon that Star had lost a bid for 

a project with Winwater (referred to as the “Tulsa Bid Sleeves” project), because Sigma 

had offered Project Pricing and Star had not. Mr. Minamyer wrote to Mr. McCutcheon, 

“They should be very careful if they want to hold this price increase as we will not lose 

our partners or any more orders because they [Sigma] are not responsible in the market.” 

In calling Sigma “not responsible,” Mr. Minamyer was referring to the fact that Sigma 

was pricing below its published multiplier letters. (Minamyer, Tr. 3204-3207; CX 0044 

at 001; RX-697 (McCutcheon, IHT (Vol. 2) at 453-454)). 

1039.	 In response to Mr. Minamyer’s April 2, 2008 email, Mr. McCutcheon asked for 

additional information (“Please give me more info. Bid date, value, selling price, etc...”), 

and Mr. Smith responded that he would provide that information the next day, April 3. 

(CX 0044 at 001 (“I have a hard copy in my office and will be in on Thursday.”)). 

1040. { 

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} (McCutcheon, Tr. 2469-2471, in camera; Rybacki, Tr. 3635, in camera; CX 

1621-A at 098, in camera (Rybacki telephone records); supra ¶¶ 755-757 (detailing 

telephone records)). 

7.2.6	 McWane Monitored Progress of the Tatman Plan, and Considered It 

a Success through the First Quarter of 2008 

(Infra ¶¶ 1042-1054). 

1042.

1041. McWane monitored the progress of the Tatman Plan, and considered the suppliers’ 

coordinated pricing conduct through the first quarter of 2008 to have been a success. 

(CX 2480 (Napoli, Dep. at 43­

45); Tatman, Tr. 1007, in camera; see supra ¶¶ 924-929). 

1043. {

 (Tatman, Tr. 931-933; 1007, 1013, in camera; 

RX-396, in camera). 

1044. { 

(Tatman, Tr. 1022-1023, in camera; RX-396, in camera). 

 (Tatman, Tr. 1022-1023, 

in camera; RX-396, in camera; see, e.g., RX-396.xls (produced in native format), 

1045.	 {

 (RX-396, in camera; { 

}; Tatman, Tr. 

1028-1029, in camera { 

} 

1046. {

 (Tatman, Tr. 1031, in camera). 

1047.	 {
 

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1048. 

1049. 

1050. 

1051. 

1052. 

} (RX-396.xls, in camera, { 

On January 31, 2008, Mr. Tatman received a copy of the Star January 30, 2008 email to 

HD Supply, in which Mr. Leider of Star informed HD Supply it would match McWane’s 

pricing and curtail Project Pricing. Mr. Tatman viewed it as a positive development and 

forwarded the email to Messrs. McCullough and Walton. Mr. Tatman wrote: 

Per the e-mail chain below Star is following the [McWane] 

Multiplier Maps also effective Feb 18th. Also note comment on 

NO UTILITY PROJECT PRICING NATION WIDE that was sent 

to HDS regional reps. The proof will be if they actually hold to 

what they say. 

Note that Star has our actual maps, which isn’t a bad thing. 

We heard a similar announcement is out from Sigma but we’ve yet 

to receive a copy. 

(CX 0178 at 001; Tatman, Tr. 412-413, 418). 

Three minutes after receiving Mr. Tatman’s email, Mr. McCullough forwarded the email 

to McWane’s CEO, Mr. Page, writing that “[t]he first tentative baby steps are 

encouraging but the proof will be in ‘saying no’ to customer requests for special pricing.” 

(CX 0178 at 001; Tatman, Tr. 417; CX 2479 (McCullough, Dep. at 197-200) (expressing 

uncertainty about what “baby steps” meant)). 

Twenty minutes later, Mr. Page responded to Mr. McCullough’s report of the good news 

from Star, “Beats a sharp stick in the eye.” (CX 0178 at 001; see also CX 2482 (Page, 

Dep. at 146, 151) (explaining that Mr. McCullough’s report in CX 0178 that Star was not 

going to offer Project Pricing on Fittings could be “good news”); CX 2482 (Page, Dep. at 

160-161) (unable to explain what he meant by comment, other than anything or almost 

anything beats a sharp stick in the eye)). 

McWane’s sales force reported to Mr. Tatman some instances in which Sigma and Star 

were continuing to Project Price after March 1, 2008, the date upon which McWane, 

Sigma and Star had all set as the date to no longer offer Project Pricing. (Tatman, Tr. 

421-422; CX 0339). 

On March 10, 2008, Mr. Tatman sent an email to Messrs. McCullough and Walton, 

noting that March 1, 2008 had been “the last published date for [McWane], Sigma and 

Star to honor any project pricing,” and that “Jerry [Jansen] is getting mixed competitive 

signals ranging from adherence to published pricing by Sigma and Star to cutting deals 

and extending terms.” Mr. Tatman stated that he would work on getting qualified 

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competitive information rather than verbal inputs, and “nervously wait for the March data 

to come in.” (CX 0339; CX 2479 (McCullough, Dep. at 210-212) (explaining CX 0339, 

that “soft tonnage” means lower sales, and that McWane wasn’t offering new job pricing 

in February 2008)). 

1053.	 In April 2008, McWane believed that Sigma and Star had both curtailed Project Pricing, 

and that they had concentrated pricing authority to individuals above the sales team. 

(Tatman, Tr. 423-424; CX 1564 at 004). 

1054.	 In his Executive Report for the first quarter of 2008, Mr. Tatman noted the success of the 

Tatman Plan: higher invoiced prices, reduced discounting, and centralization of pricing 

authority by rivals: 

Based upon our competitive feedback log, the level of multiplier 

discounting by both Star and Sigma appears to have died down 

significantly. As we understand it, both have removed pricing 

authority from the front line sales team and pushed it up higher 

within their organizations. Discounting is still available, but it now 

requires a more structured decision process . . . . 

(CX 1564 at 004; Tatman, Tr. 423-424; CX 2484 (Tatman, Dep. at 117-118) 

(Acknowledging that “if I wrote that, I would have had some basis for making that 

statement,” including, “field sales reports from the guys of what’s going on at the branch 

level.”); CX 0627 at 004 (Tatman’s January 2008 Presentation (“keys to actual success 

are... Sigma & Star mgt pulling price authority away from front line sales.”)). 

7.2.7	 Absent Concerted Action, the Abrupt Change of a Long-Standing 

Business Practice to Curtail a Key Element of Price Competition, 

Project Pricing, Would Be Against Each Supplier’s Unilateral 

Business Interest 

1055.	 Absent concerted action, the abrupt curtailment in 2008 by any of McWane, Sigma, or 

Star of a key element of price competition, Project Pricing, would have been against that 

supplier’s unilateral business interest. (Infra ¶¶ 1056-1071). 

1056.	 McWane’s, Star’s, and Sigma’s actions were more consistent with collusion and 

coordinated interaction than with unilateral conduct or mere recognition of mutual 

interdependence. (Schumann, Tr. 3893-3899). 

1057.	 The decision by Sigma, Star and McWane in January 2008 to curtail Project Pricing was 

an abrupt change from their prior business practices. (Supra § 7.2.4). 

1058.	 McWane’s communication that it intended going forward to sell all products only off the 

newly published multipliers was in McWane’s best interest only to the extent that 

McWane had an agreement that its rivals would behave in kind. Otherwise, McWane’s 

announcement that it was going to maintain published pricing and not discount, would 

cause its rivals to come in and take McWane’s business away through discounting, which 

would be counter to McWane’s best interest. (Schumann, Tr. 3883-3884, 3893-3894). 

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1059.	 Mr. Tatman acknowledged from the outset that his plan would only work “with the 

proper communication and actions.” (CX 1702 at 004 (December 2007 Tatman email 

regarding list price changes). 

1060.	 Mr. Pais of Sigma later echoed this, explaining in an April 2008 email regarding Sigma’s 

curtailment of Project Pricing, that Sigma “will NOT – and can NOT – do this 

unilaterally.” (CX 1137 at 001; Pais, Tr. 1935-1937). 

1061.	 Likewise, Star’s National Sales Manager, Mr. Minamyer, testified that Star knew that it 

needed its competitors to participate in any effort to stabilize prices. (CX 2526 

(Minamyer, Dep. at 141-142) (“Q. In other words, you would need your competitors to 

participate in an effort to stabilize prices? A. We believe that to be true.”) (objections 

omitted); Minamyer, Tr. 3173 (“Q. Did you believe at this point in time that Star could 

stabilize fittings prices on its own? . . . . A. I don’t recall ever believing that we could do 

that.”)). 

1062.	 Mr. McCutcheon admitted at trial that Project Pricing had been a core part of Star’s 

pricing strategy. (McCutcheon, Tr. 2387 (Project Pricing was “a significant part of Star’s 

competitive strategy”); CX 2539 (McCutcheon, Dep. at 153-155) (“Q. And you thought 

it was unusual, to say the least, for Mr. Minamyer to say that Star was going to stop 

project pricing. Right? A. Yes, sir. Q. In fact, project pricing was a core part of Star’s 

sales strategy at this point in time, was it not? A. Yes, sir. Q. You had grown market 

share by offering project pricing and undercutting your competitors prior to this time. 

Am I right? A. Yes, sir.”)). 

1063.	 Star’s President, Mr. McCutcheon, testified that the company’s change of course to 

curtail Project Pricing was contrary to its traditional practice of using Project Pricing to 

gain market share , and described the decision as “unusual,” “irrational,” and “bizarre.” 

(CX 2538 (McCutcheon, IHT (Vol. 2) at 452) (“Q. Is it fair to say that telling customers 

that there is no more project pricing, is that an unusual step for Star? A. It’s bizarre . . . 

it’s irrational . . . .”); McCutcheon, Tr. 2394 (Star had grown its market share by offering 

Project Pricing); McCutcheon, Tr. 2510 (“90 to 95 percent of our net realized prices to 

the customer have some type of discount variable to it. . . . [T]hat is the standard way 

Star Pipe does business.”); McCutcheon, Tr. 2392 (“Q. Would telling Star’s sales force 

that Star’s goal was to stop project pricing be unusual? A. Yes, sir.”)). 

1064.	 Due to its traditional use of Project Pricing, pulling back on Project Pricing in January 

2008 was a risky move for Star. As the smallest competitor in the market, Star could not 

afford to cease Project Pricing and remain competitively viable unless McWane and 

Sigma took similar steps. (McCutcheon, Tr. 2387; CX 2525 (Minamyer, IHT at 48, 127; 

see also Minamyer, Tr. 3147-3148 (Mr. Minamyer believes that Star would have lost 

orders to its lower priced competitors if it had pulled back on Project Pricing but 

McWane and Sigma had not). 

1065.	 As Mr. Minamyer explained at trial, Star would not have made more money by 

unilaterally eliminating Project Pricing (i.e., if Sigma and McWane had not also 

eliminated Project Pricing), because Star would have lost sales. (Minamyer, Tr. 3286­

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3287; see also CX 2539 (McCutcheon, Dep. at 164) (“Q. If your competitors were 

willing to discount off of what you refer to internally as MSRP and Star was not, what 

effect would that have on Star? A. We wouldn’t have been successful.”)). 

1066.	 Star did not reduce its Project Pricing until it had some degree of certainty that Sigma and 

McWane were both taking similar steps. (CX 2525 (Minamyer, IHT at 49) (“Q. So, is it 

You need to know that we are strong in revenue and profit. We 

(CX 0752 at 001 (emphasis added); Minamyer, Tr. 3171-3173; see also CX 2254 at 004 

fair to say, sir, that each and every time you took steps to reduce project pricing, you had 

some degree of certainty, more or less, that SIGMA and McWane were taking similar 

steps? A. That “would be fair.”)). 

1067. In the January 22, 2008 email to Star’s division managers, Mr. Minamyer explained the 

decision to curtail Project Pricing as being “right for the industry”: 

will have no problems weathering any price wars, even if they are 

prolonged. What we are doing is what is right for the industry. 

So, don’t think we need the price increases, as that is not the case. 

A price increase will be good for us on the short and long term 

profit situation but are not vital to our strength. The truth is that we 

would come out of a price war stronger than ever and with a bigger 

market share, but we don’t think the industry needs that right 

now.” 

(re-circulating the instructions and accompanying statements on June 19, 2008 in 

connection with the subsequent increase scheduled to go into effect July 14). 

1068. {

 (McCutcheon, Tr. 2497-2498, 

in camera; CX 1872 at 004, in camera; CX 2538 (McCutcheon, IHT (Vol. 2) at 408), in 

camera { 

; McCutcheon, Tr. 2497-2499, in camera; CX 1872 at 004, in camera). 

1069.	 {

 (McCutcheon, Tr. 2496, in camera). 

{

 (McCutcheon, Tr. 2498, in camera (2007); CX 1872 at 004, in 

camera (2006))). {

 (CX 2539 (McCutcheon, Dep. at 147) (2007); CX 1872 

at 004, in camera (2006)). 

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1070.	 By April 14, 2008, Star’s sales of push-on Fittings was declining, by as much as 36 

percent. Nevertheless, Star continued its plan to curtail Project Pricing. (CX 2526 

(Minamyer, Dep. at 177-178); CX 0861 at 002). 

1071.	 Star district manager Michael Berry received a copy of Mr. Minamyer’s January 22 and 

23, 2008, emails instructing Star’s division managers that “Our goal is to take a price 

increase and to stop project pricing.” (RX-691 (Berry, Dep. at 49)). A pullback in 

Project Pricing by Star was unprecedented, and Mr. Berry is unaware of any instance, 

other than the January 22, 2008, email of Mr. Minamyer, in which the stated goal of Star 

was “to stop project pricing.” (CX 2532 (Berry, Dep. at 103-104) (“Q. You had never 

seen it before this e-mail came out? A. No. Q. . . . [Y]ou have never seen it since that email came out? A. I do not recall seeing it since it came out.”)). 

7.3	 McWane Supported Its Invitation to Collude by Communicating Its 

Manufacturing Cost Advantage to Sigma 

1072.	 McWane communicated its manufacturing cost advantage to Sigma in early 2008 to 

create the perception that it would be able to sustain aggressive pricing if its share 

position were threatened, and to encourage Sigma and Star to collude on pricing. (Infra 

¶¶ 1073-1088). 

1073.	 The cost of manufacturing Fittings in China was increasing in early 2008 due to high 

currency exchange rates, rising labor costs, and increases in the cost of pig iron. 

(Tatman, Tr. 866-875; see supra § 6.5.3). 

1074.	 In conjunction with the Tatman Plan, McWane sought to communicate to Sigma that 

McWane’s Domestic Fittings costs were now competitive with Sigma’s and Star’s costs 

of importing Fittings from China. (CX 1565 at 001). 

1075.	 As Mr. Tatman explained in a January 30, 2008 email to Messrs. McCullough and 

Walton, “[t]here is a theory that our ability to stabilize the market is tied to our 

competitor’s perception of our cost structure and our ability to sustain aggressive pricing 

if our share position is threatened.” (CX 1565 at 001; Tatman, Tr. 439-441). 

1076.	 To convey McWane’s cost advantage, Mr. Page sent an email directly to Mr. Pais on 

January 4, 2008, offering to sell Sigma Fittings that McWane produced in the United 

States. (Tatman, Tr. 429-430; CX 1113 at 001 (“It has occurred to me that with China 

costs rising and us having excess time available on our DISAS around the plants, we 

could supply you with small compact fittings at a competitive price.”)). 

1077.	 Before January 2008, McWane had provided Fittings out of inventory to Sigma on a spot, 

“fitting-by-fitting” basis. These sales were negotiated on behalf of Sigma by Mr. Rona. 

(Tatman, Tr. 434). In contrast to other buy-sell arrangements between Sigma and 

McWane that occurred during the ordinary course of business, Mr. Tatman testified at 

trial that McWane’s offer to Sigma was “more of a head fake than anything.” (Tatman, 

Tr. 762). 

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1078.	 Mr. Pais responded to Mr. Page’s offer two days later, thanking him for McWane’s offer 

to sell small size Fittings to Sigma, and asking him to prepare a preliminary quote. (CX 

2039). 

1079.	 After internal consultations within McWane (CX 1565 at 001), Mr. Tatman sent an email 

to Mr. Pais on February 1, 2008, proposing to provide Sigma with 3” - 8” Fittings at 

$1,220 per ton. (CX 1117; CX 1570 at 001-002; Tatman, Tr. 435-437). 

1080.	 McWane’s offer was for the sale of domestically-produced Fittings to be re-sold by 

Sigma on Open Specification jobs only. (Tatman, Tr. 430; CX 2039). 

1081.	 The price McWane offered to Sigma was below McWane’s total cost of production (but 

above its variable costs), and calculated to be below what McWane understood Sigma’s 

landed cost of production to be. (CX 1565 at 001 (estimating McWane’s total cost of 

production at $1,249 per ton and Sigma’s landed cost at $1,252 per ton); Tatman, Tr. 

441-442, 458 (offer was below full manufacturing costs but above variable costs); CX 

1183 at 001 (Page: “The Chinese importers in water works fittings are seeking price 

increases are [sic] we are now in a position to resist. In fact I have offered to make ‘A’ 

items for an importer at the same price they can bring in it in.”)). 

1082.	 Mr. Pais responded to Mr. Tatman’s February 1, 2008 offer later that day. He noted that 

he had discussed the matter with Mr. Page late in 2007, and that he would respond “at the 

earliest,” adding, “We deeply appreciate and respect our relationship with McWane and 

look forward to growing our relationship along mutually beneficial lines.” (CX 1570 at 

001; Tatman, Tr. 437-438). 

1083.	 On February 26, 2008, Mr. Tatman wrote in an email to Mr. Page that he did not expect 

Sigma to pursue the purchase of Fittings from McWane, but that “supplying that quote 

should reinforce the point that with the DISA and our TXX facility we’re in a very 

different competitive cost game than what they’ve been used to with us.” (CX 1571 at 

001; Tatman, Tr. 452-454). 

1084.	 On March 10, 2008, Mr. Tatman sent an email to Mitchell Rona forwarding his February 

1, 2008 offer email and specifying the list of items that McWane proposed to supply to 

Sigma pursuant to that offer. (CX 1703 at 001). 

1085.	 As a result of the McWane offer, Sigma understood that McWane was a low cost Fittings 

producer, had excess capacity, and would be a dangerous rival if Sigma and Star did not 

play by its rules. (CX 1565 at 001; CX 1571 at 001; CX 1142 at 002 (Pais describing 

McWane quote as an “interesting and revealing price” that suggests a McWane cost 

advantage over Sigma); CX 1141 at 001 (“Let’s keep the follow up and start some 

relationship – as we need to build a new relationship with them, for our mutual good, 

apart from helping ourselves with perhaps the most competitive source for the ‘AA’ 

items!”)). 

1086.	 Sigma eventually did place an order with McWane in June 2008, at which time Mr. 

Tatman emailed Messrs. Walton and. McCullough (who forwarded the email to Mr. 

Page), reporting receipt of a purchase order of Fittings from Sigma, with the price set at 

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“what we believe the landed costs were for small diameter fittings out of China at that 

time.” (CX 2067 at 001). 

1087.	 Star became aware of McWane’s offer to sell low-priced Fittings to Sigma, and 

understood that the point of the buy/sell exercise had been for McWane to demonstrate to 

Sigma its capacity to compete aggressively if necessary. In an October 17, 2008 email, 

Mr. McCutcheon told Messrs. Bhargava and Bhutada: 

Sigma recently bought 8 [truckloads] from tyler because sigma 

said “they could buy them for 15% cheaper from tyler than they 

could get them from china”. After the 8 [truckloads], tyler would 

not take any more orders. My guess is tyler took these orders to 

try to make a point. During the negotiation, tyler stated that they 

are now the low cost producer and said they could prove it. I 

think there is some exaggeration in this statement, but I believe the 

core point. 

(CX 0534 at 001 (emphasis added); McCutcheon, Tr. 2454-2456). 

1088.	 { 

} 

(McCutcheon, Tr. 2471-2473, in camera; CX 1621-A at 074, in camera (Rybacki 

telephone records); supra ¶ 783 (detailing telephone records)). 

7.4	 In Early 2008, McWane, Sigma, and Star Restarted Efforts to Organize the 

DIFRA Information Exchange to Enhance Competitive Transparency 

1089.	 In early 2008, McWane, Sigma, and Star restarted efforts to organize the DIFRA 

information exchange in order to enhance competitive transparency in the Fittings 

market. (Infra ¶¶ 1090-1154). 

7.4.1	 The Suppliers Had Been Working on Organizing DIFRA for Years, 

but DIFRA Did Not Become Operational Prior to the 2008 Price 

Fixing Conspiracy 

1090.	 McWane, Sigma, and Star had discussed forming DIFRA since at least as early as 2005. 

(CX 1473; RX-654 (Brakefield, Dep. (Vol. 1) at 11-12)). 

1091.	 Mr. Pais initiated the effort to form DIFRA, and subsequently handed off responsibility 

for Sigma’s participation to Mr. Brakefield and Mr. Rybacki. (Pais, Tr. 1966-1967; 

Brakefield, Tr. 1220-1221; CX 1225 at 004 (Pais writing that “I took the initiative to 

form an industry association for Fittings”)). 

1092.	 DIFRA was modeled after industry groups formed by manufacturers of ductile iron pipe 

and cast iron soil pipe, such as DIPRA (the Ductile Iron Pipe Research Association) and 

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CISPI (the Cast Iron Soil Pipe Institute). (Tatman, Tr. 469; Pais, Tr. 1968; CX 2527 

(Pais, IHT at 57-58); CX 1088 at 001 (Pais October 2008 memorandum noting influence 

of DIPRA and CISPI “lead[ing] to mature and disciplined decision making”)). 

1093.	 Mr. Pais spoke with ACIPCO, U.S. Pipe, McWane, and Star regarding membership in 

DIFRA. (Pais, Tr. 1969-1970; McCutcheon, Tr. 2411 (Pais originally invited Star to join 

DIFRA)). In or around 2004, Mr. Pais also invited Mr. Saha of PCI, a former Fittings 

supplier that was ultimately sold to Sigma, to join DIFRA. (Saha, Tr. 1178). 

1094.	 The DIFRA members engaged Thad G. Long of the law firm Bradley Arant Rose & 

White – the same law firm that had handled the formation and structuring of DIPRA – to 

assist in setting up DIFRA. CX 1473 at 001 (first DIFRA meeting held at Bradley 

Arant); CX 0048 at 001 (DIFRA organizational meeting minutes recounting Mr. Long’s 

advice)). 

1095.	 DIFRA organizational meetings were held in March 2005 (CX 1473), November 2006 

(CX 0048), and December 2006 (CX 1476). 

1096.	 The first official DIFRA meeting occurred on March 18, 2005 at the offices of the 

Bradley Arant law firm, and was attended by Mr. Brakefield for Sigma, Mr. Crawford for 

U.S. Pipe, and Mr. Green for McWane. (CX 1473 at 001; Brakefield, Tr. 1222-1224). 

1097.	 Attendees at the initial DIFRA meeting identified potential members of DIFRA, 

including McWane, Sigma, U.S. Pipe, ACIPCO, Star, and PCI. (CX 1473 at 001; 

Brakefield, Tr. 1222-1224). These potential members were identified because they were 

“predominantly the larger players in the industry as far as fittings, and to do the things 

that the organization was going to set out to do, you needed to have every -- every large 

player in it.” (Brakefield, Tr. 1225). 

1098.	 The next known DIFRA meeting took place on November 21, 2006 at the offices of 

Bradley Arant, and was attended by Mr. Green for McWane, Mr. McCutcheon for Star, 

Messrs. Pais, Bhattacharji, Rybacki and Brakefield for Sigma, and Mr. Crawford for U.S. 

Pipe (CX 0048 at 001; Brakefield, Tr. 1226). 

1099.	 Attendees at the November 2006 DIFRA meeting agreed upon requirements for DIFRA 

voting membership, including a requirement that any voting member must produce 

and/or sell at least 10,000 tons of Fittings annually. (CX 0048 at 002). According to Mr. 

Brakefield, the purpose of the requirement was to ensure that members were “committed 

to the industry” and “enthusiastic about what we were trying to do for the industry.” 

(Brakefield, Tr. 1226-1227 (discussing meeting minutes); Brakefield, Tr. 1264 

(discussing same requirement in DIFRA bylaws, CX 0158 at 010)). 

1100.	 Attendees at the November 2006 DIFRA meeting also agreed on a requirement that any 

voting member must sell 95% of its Fittings to Distributors. (CX 0048 at 002). Mr. 

Brakefield could not explain any reason for this requirement. (Brakefield, Tr. 1226-1227 

(discussing meeting minutes); Brakefield, Tr. 1264 (discussing same requirement in 

DIFRA bylaws, CX 0158 at 010)). 

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1101.	 The minutes for the November 2006 DIFRA meeting reflect a discussion of the potential 

exchange of Fittings market information through DIFRA, and the advice provided by 

DIFRA’s lawyer Mr. Long that information exchanges of market information can raise 

“significant anti-trust issues” when conducted by associations comprised of only a few 

members: 

Mr. Long discussed the anti-trust concerns with associations in 

which competitors are members and work together on industry 

matters. He noted the significant anti-trust issues when an 

association consists of only two or three competitors, whereas an 

association with five, six or more competitors is less problematic. 

Mr. Long noted that information gathered by competitors in the 

market place is permissible and is simply a part of operating a 

business in a competitive environment. On the other hand, 

compiling and disseminating information about a market and 

competitive issues within an association presents anti-trust 

concerns. 

(CX 0048 at 001) (emphasis added). 

1102.	 The next DIFRA meeting occurred on December 12, 2006 by conference call, and was 

attended by Mr. Green for McWane, Mr. McCutcheon for Star, Mr. Pais for Sigma, and 

Mr. Crawford for U.S. Pipe. (CX 1476 (meeting minutes)). 

1103.	 DIFRA was incorporated by David Green as an Alabama nonprofit corporation on 

January 12, 2007. (CX 1480 at 007; Brakefield, Tr. 1227, 1349 (DIFRA was 

incorporated in Alabama in January 2007)). At that time, DIFRA’s initial Board of 

Directors had seven members, consisting of two individuals each from McWane 

(Tatman, Leonard), Sigma (Brakefield, Pais), and Star (Bhutada, McCutcheon), and one 

from U.S. Pipe (Crawford). (CX 1480 at 006; Tatman, Tr. 616-617 (Tatman was a 

DIFRA board member)). 

1104.	 Mr. Brakefield became DIFRA’s president in January 2007, and was the first and only 

president of DIFRA. (Brakefield, Tr. 1221-1222, 1227). 

1105.	 In January 2007, DIFRA engaged the accounting firm SRHW of Birmingham, Alabama, 

as the association’s auditor. SRHW was also engaged for the purpose of compiling each 

member’s sales data by tons shipped, and aggregating that data into monthly reports to be 

provided to each DIFRA member. (CX 1333 at 003, 005 (January 8, 2007 engagement 

letter describing data aggregation function); Brakefield, Tr. 1236-1238 (DIFRA retained 

accounting firm in January 2007 to aggregate member shipment data)). 

1106.	 Following DIFRA’s incorporation, the organization was largely dormant for the balance 

of 2007. (CX 1083 at 002 (Thad Long February 11, 2008 email describing hiatus and 

restarting organizational efforts); CX 1330 at 001 (McWane submitted data to DIFRA in 

early 2007, but other members did not, and Mr. Herren explained to SRHW that the 

group “seems to be a little disjointed at this point”)). 

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1107. 

1108. 

1109. 

1110. 

1111. 

1112. 

1113. 

1114. 

7.4.2	 In February 2008, McWane and Sigma Agreed to Restart Efforts to 

Form the DIFRA Information Exchange 

Mr. Rybacki spoke to Mr. McCutcheon in early 2008 to again ask Star to join or support 

DIFRA. (Rybacki, Tr. 3532-3533; CX 2531 (Rybacki, Dep. at 187). Mr. Rybacki and 

Mr. Pais contacted Mr. McCutcheon about DIFRA so frequently that Mr. McCutcheon 

felt as if he was being “pushed” by Sigma to join DIFRA. (CX 2538 (McCutcheon, IHT 

(Vol. 2) at 242-244)). 

Mr. Rybacki asked Mr. McCutcheon to take part in DIFRA because he thought DIFRA 

was important. (Rybacki, Tr. 3532-3533). 

Mr. Rybacki also contacted ACIPCO and U.S. Pipe to tell them that he thought they 

should participate in DIFRA. (Rybacki, Tr. 3534). 

{ 

(Rybacki, Tr. 3632-3633, in camera; CX 1621-A at 109, 

110, in camera (Rybacki telephone records); supra ¶¶ 748-750 (detailing telephone 

records)). 

On February 7, 2008, Mr. Tatman reported to his superiors that Mr. Rybacki had called 

him that day to express Sigma’s interest in participating in a trade association for Fittings. 

(CX 1284 at 001; Rybacki, Tr. 3536). Among other things, Mr. Rybacki told Mr. Tatman 

that DIFRA should become active, that Sigma would support DIFRA, and that he had 

discussed DIFRA with Star, and that Star would also consider participating. (CX 1284 at 

001; Tatman, Tr. 466-467; Rybacki, Tr. 3536-3538). Mr. Rybacki then suggested that 

Mr. Tatman contact Mr. Brakefield about restarting DIFRA efforts. (CX 1284 at 001; 

Rybacki, Tr. 3538). 

Mr. Rybacki testified that his February 7, 2008 conversation with Mr. Tatman was one of 

the two times he had spoken to Mr. Tatman in his career. (Rybacki, Tr. 3537). 

Later in the day on February 7, 2008, Mr. Tatman emailed Mr. Brakefield regarding 

“next steps” toward restarting DIFRA, including suggesting meeting dates for a face-toface meeting among DIFRA members. (CX 1284 at 001; Tatman, Tr. 466-467, 470-471; 

CX 1081 at 002-003; Brakefield, Tr. 1257). 

Mr. Tatman’s February 7, 2008 e-mail to Mr. Brakefield also addressed DIFRA’s 

membership: 

To have a viable association we’d need at a minimum McWane, 

Sigma and Star to be members. You have a historical perspective 

from the last attempt, but I would think ACIPCO and U.S. Pipe 

would bring some value to the association. There’s probably going 

to be some minimum requirement in terms of volume to join. Is 

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5,000 tons the appropriate level? If so who do you feel would be 

potential members? 

(CX 1081 at 001; Tatman, Tr. 471-472). 

1115.	 Before receiving the email from Mr. Tatman, Mr. Brakefield had not had conversations 

with anyone about restarting DIFRA efforts. (CX 2496 (Brakefield, Dep. (Vol. 2) at 135­

136) (discussing CX 1081); Brakefield, Tr. 1257-1258 (does not recall specific 

conversations with Messrs. Pais, Rybacki or Bhattacharji)). 

1116.	 On February 11, 2008, Mr. Long sent an email to the DIFRA members seeking to re-start 

the organizational process: “the organization has been relatively dormant in recent 

months. We have just been advised by a DIFRA member that it is believed the time 

might be right to take DIFRA to the operational stage, and we were requested to contact 

everyone with a potential interest.” (CX 1083 at 002). 

7.4.3	 McWane, Sigma, and Star Included U.S. Pipe as a DIFRA Member 

Solely to Mask Antitrust Concerns 

1117.	 McWane, Sigma, and Star included U.S. Pipe as a DIFRA member to mask antitrust 

concerns, even though U.S. Pipe had stopped manufacturing Fittings years before, it did 

not satisfy DIFRA membership requirements, and the small number of Fittings that it 

sold were supplied to it largely by Sigma. (Infra ¶¶ 1118-1130). 

1118.	 Section 2.2 of the DIFRA Bylaws provided that to be a member of DIFRA an 

organization must meet certain minimum requirements, including selling 95% of their 

Fittings through distribution and producing or selling at least 10,000 tons of Fittings 

annually: 

(i) Offer a full ductile iron fittings product line configuration for 

the United States water works and sewer industry; 

(ii) Maintain a national market presence within the United States in 

the production or sale of ductile iron fittings; 

(iii) Operate as either a Producer or Seller (as such terms are 

defined below) of ductile iron fittings; 

(iv) At least ninety-five percent of sales of ductile iron fittings 

must be to a distributor; 

(v) Be involved in the design and development of technical 

specifications and standards for ductile iron fittings; and 

(vi) Produce or sell at least ten thousand (10,000) tons of ductile 

iron fittings on an annual basis. 

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(CX 0158 at 010 (“final or close to final” draft circulated by Mr. Long on February 12, 

2008); see also CX 1484 at 007 (same provisions in Bylaws circulated by Mr. Long in 

March 2008); CX 1083 at 002 (February 11, 2008 Long email explaining that Bylaws 

had been largely finalized prior to 2008); Brakefield, Tr. 1260-1264 (no changes were 

made to the DIFRA Bylaws after February 12, 2008)). 

1119.	 DIFRA’s bylaws define “Producer” as “an entity that manufacturers ductile iron fittings 

in its own foundry facilities or in foundry facilities owned by an unrelated third-party 

with respect to which such entity has proprietary control over the engineering design, 

production processes and quality assurance systems for the production of all of the 

entity’s requirements for ductile iron fittings.” (CX 0158 at 010). 

1120.	 DIFRA’s bylaws define “Seller” as “a seller of ductile iron fittings to distributors.” (CX 

0158 at 010). 

1121.	 DIFRA ultimately had four members: McWane; Sigma; Star; and U.S. Pipe. (Joint 

Stipulations of Fact (JX 0001) ¶ 17; Tatman, Tr. 478; Brakefield, Tr. 1227-1228; 

Brakefield, Tr. 1259-1260). 

1122.	 McWane, Sigma, and Star understood that DIFRA’s information exchange would need at 

least four members due to antitrust considerations. (CX 0048 at 001 (DIFRA meeting 

minutes noting that counsel “discussed the anti-trust concerns with associations in which 

competitors are members and work together on industry matters. He noted the significant 

anti-trust issues when an association consists of only two or three competitors, whereas 

an association with five, six, or more competitors is less problematic.”); CX 2272 

(counsel advising “With four, you can just barely justify [the information exchange]”); 

CX 0048 at 001 (DIFRA meeting minutes noting counsel’s advice that “compiling and 

disseminating information about a market and competitive issues within an association 

presents anti-trust concerns”); CX 2267 at 001 (counsel noting that “[t]his does not mean 

all antitrust concerns are definitely gone, as you always have some concern with 

information aggregations when there are relatively few participants”)). 

1123.	 McWane, Sigma, and Star sought a fourth DIFRA member, ACIPCO, which 

manufactured large diameter Domestic Fittings. Brakefield, Tr. 1268 (“Q. Mr. 

Brakefield, did DIFRA seek out a fourth member so that it could avoid antitrust 

concerns? A. We -- we talked to several other companies. ACIPCO was one. And we 

tried to get them to have some interest in that, being a part of the group.”)). 

1124.	 Mr. Long invited ACIPCO to join DIFRA in February 2008, but ACIPCO declined the 

offer. In declining to participate in DIFRA, ACIPCO cited as a reason that it did not 

understand the business reason for a membership requirement in the DIFRA bylaws that 

all members must sell at least 95% of their Fittings through distribution. ACIPCO did 

not meet this requirement. (CX 1083 at 001; see also CX 1088 at 001 (Pais describing 

DIFRA membership: “Though we had aimed at enlisting the 5 largest members - 

McWane/Tyler, Sigma, Star, US Pipe and ACIPCO, the latter chose not to join. No effort 

was made to invite smaller suppliers . . . .”); Pais, Tr. 1974-1975 (ACIPCO declined 

membership in DIFRA); Brakefield, Tr. 1268 (ACIPCO showed no interest and did not 

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come to any meetings); CX 1991 (ACIPCO did not meet 95% requirement); CX 2486 

(Burns, Dep. at 98-99) (same)). 

1125.	 In 2007, U.S. Pipe also did not meet the DIFRA membership requirement that at least 

95% of its sales of Fittings must be to a Distributor. (CX 2541 (Crawford, Dep. at 69, 

71-73) (“[T]here’s no way we would have satisfied” requirement for 95% of sales to be 

through distribution because only approximately 50% of U.S. Pipe’s Fittings sales were 

to Distributors)). 

1126.	 In 2007, Sigma, McWane, and Star each satisfied the minimum membership requirement 

of 10,000 tons of Fittings sold annually. (Brakefield, Tr. 1264-1265; CX 1297 at 003­

014 (showing 2007 shipments as reported to DIFRA amounting to 33,855 tons (Sigma), 

22,073 tons (Star) and 60,632 tons (McWane)); RX-679 (Haley, Dep. at 30) (explaining 

these pages of CX 1297, Bates numbered SRHW-00023 through -00034, as copies of the 

internal work papers on which SRHW compiled the information obtained from the 

DIFRA members)). 

1127.	 In 2007, U.S. Pipe’s sales of Fittings amounted to approximately 2,393 tons. (CX 1297 

at 003-014 (showing 2007 monthly shipments as reported to DIFRA by U.S. Pipe of 254 

tons (Jan.), 207 tons (Feb.), 173 tons (Mar.), 204 tons (Apr.), 210 tons (May), 191 tons 

(June), 160 tons (July), 225 tons (Aug.), 224 tons (Sep.), 154 tons (Oct.), 216 tons (Nov.), 

and 175 tons (Dec.)); CX 2520 (Haley, Dep. at 30) (explaining these pages of CX 1297, 

Bates numbered SRHW-00023 through -00034, as copies of the internal work papers on 

which SRHW compiled the information obtained from the DIFRA members); Brakefield, 

Tr. 1264-1265 (testifying that he did not know whether U.S. Pipe sold 10,000 tons of 

Fittings annually and that he did not ask)). 

1128.	 Sigma, McWane and Star knew that U.S. Pipe had stopped manufacturing Fittings in 

April 2006, and re-sold Fittings that it largely purchased from Sigma. (Morton, Tr. 2810, 

2819, 2866 (Sigma was U.S. Pipe’s primary supplier of Fittings after U.S. Pipe ceased 

production in 2006); Brakefield, Tr. 1268-1269 (U.S. Pipe did not manufacture its own 

Fittings, and purchased Fittings from Sigma); Tatman, Tr. 473-474 (U.S. Pipe sold 

Fittings that it bought from others); CX 0313 at 004 (Pais writing that U.S. Pipe was “not 

a producer anymore, but a small player buying almost all of their needs from Sigma”); 

CX 2527 (Pais, IHT at 74) (U.S. Pipe sales of Fittings during DIFRA period not 

significant); (CX 2538 (McCutcheon, IHT (Vol. 2) at 297-298) (by the time DIFRA was 

formed, U.S. Pipe only purchased Fittings from other producers and resold them)). 

1129.	 U.S. Pipe’s participation in the DIFRA information exchange was so insubstantial that 

Mr. McCutcheon incorrectly believed that McWane, Star, and Sigma were the only three 

companies that exchanged data through DIFRA. (CX 2538 (McCutcheon, IHT (Vol. 2) 

at 298)). 

1130.	 According to Mr. Rybacki, there was no connection between DIPRA and DIFRA, and 

DIFRA members had no interest in having DIPRA members participate in DIFRA, 

except to the extent a DIPRA member also was a manufacturer of Fittings. (Rybacki, Tr. 

3539). 

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7.4.4	 DIFRA Operational Stage Organizing in 2008 

1131.	 The four DIFRA members held an organizational meeting on March 27, 2008 in the 

Birmingham, Alabama offices of Bradley Arant to discuss the information exchange 

reporting procedures and guidelines. (CX 1486 at 001, 002 (agenda); CX 2272 (planning 

email); CX 1084 at 001 (planning email)). 

1132.	 In attendance at the March 2008 meeting were representatives of all four DIFRA 

members: Messrs. Brakefield, Pais, Bhattacharji, and Rybacki of Sigma; Mr. 

McCutcheon of Star; Mr. Crawford or Mr. Murray of U.S. Pipe; and Mr. Tatman (and 

possibly Mr. Leonard and Mr. Walton) of McWane. Mr. Long did not attend. 

(Brakefield, Tr. 1270-1271 (listing attendees); Tatman, Tr. 475 (Mr. Tatman attended); 

McCutcheon, Tr. 2416 (Mr. McCutcheon attended); CX 1477 at 001 (Mr. Long, 

DIFRA’s lead attorney, did not attend, but sent his colleague Mr. Herren instead)). 

1133.	 The meeting agenda included the following item: 

Status of Reporting of production and/or sales data to independent 

CPA, including (1) reporting form, (2) reporting frequency, (3) 

identification of CPA, (4) dissemination and form of reports to 

membership (if any) based on reports input, and (5) proper and 

improper utilization of the data. To the extent one or more of the 

four remaining interested members opt out of the Association or 

out of the reporting aspect, there should be a discussion as to 

whether a continuation of the reporting program can be legally 

justified. 

(CX 1486 at 002; Brakefield, Tr. 1272). 

1134.	 After the March 27, 2008 DIFRA meeting, Mr. Tatman had dinner alone with Mr. 

McCutcheon. (Tatman, Tr. 475; McCutcheon, Tr. 2418; RX-698 (McCutcheon, Dep. at 

40)). 

1135.	 Mr. McCutcheon also had dinner alone with Mr. Pais following one of the DIFRA 

meetings in Birmingham. (McCutcheon, Tr. 2373 (Mr. Pais and Mr. McCutcheon met in 

Birmingham after a DIFRA meeting); see also supra ¶ 1036 (describing dinner meeting 

between Pais and McCutcheon)). 

1136.	 On March 28, 2008, Mr. Tatman reported on the DIFRA meeting to Mr. McCullough as 

follows: 

The DIFRA session was interesting. It would appear the 

association is a go with a tentative target to report 2006, 2007 and 

2008 (Jan-Mar) data around mid April. McWane, Sigma, Star and 

U.S. Pipe will be the reporting members. 

(CX 1560 at 001; Tatman, Tr. 476-477). 

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1137.	 On April 2 and 4, 2008, Mr. Tatman sent follow-up emails to Mr. Long and Mr. Herren 

of Bradley Arant, suggesting input/output formats for the DIFRA reports and proposing a 

target of April 14, 2008 for the members’ initial submittal of data to DIFRA. (CX 1477 

at 001, 003; Tatman, Tr. 478-482). 

1138.	 Later on April 4, 2008, Mr. Long sent an email to the four DIFRA members, noting that 

he had received proposed reporting forms and that: 

I find that they are consistent in approach and seem to minimize 

antitrust concerns. (This does not mean all antitrust concerns are 

definitely gone, as you always have some concern with 

information aggregations when there are relatively few 

participants, but the suggested approach is designed to minimize 

possible antitrust exposure down to a level which is acceptable.) 

(CX 2267 at 001, 002). Mr. Long requested comments from the DIFRA members on the 

proposed format and related assumptions, and relayed Mr. Tatman’s suggestion of a 

target date of April 14, 2008 for the submission of data. (CX 2267 at 001, 002; Tatman, 

Tr. 483-484). 

1139.	 On the morning of April 25, 2008, Messrs. Tatman, Pais, Brakefield, and McCutcheon 

held a conference call on which they finalized and agreed upon the information exchange 

reporting format. (CX 0160 at 002; Tatman, Tr. 485-486; CX 1479 at 001; McCutcheon, 

Tr. 2418; Brakefield, Tr. 1276; Brakefield, Tr. 1279 (stating that page 004 of CX 1479 

reflects the reporting format that DIFRA adopted)). 

1140.	 On the April 25, 2008 call, the three suppliers agreed that each member would submit 

data regarding its Fittings sales by tons shipped to the accounting firm SRHW, which 

would then aggregate the data and provide reports to the DIFRA members reflecting 

industry-wide sales by the 20th of the month. The three suppliers agreed that they would 

submit their data by “no later than” May 15, 2008. Going forward, members would 

report, by the 15th of each month, their prior months’ data. (CX 0160 at 002; Tatman, 

Tr. 486-487; CX 1479 at 001; Brakefield, Tr. 1276-1277; see also CX 1186 (Tatman 

May 23, 2008 email stating that “Nearly four weeks ago all members agreed on a 

conference call to report by the 15th.”); Brakefield, Tr. 1281-1282 (describing 

“consensus” on conference call as to May 15 submission of data); McCutcheon, Tr. 

2417). 

1141.	 According to their April 25, 2008 agreement, DIFRA members would report to SRHW 

short-tons of Fittings shipped within the United States in the following six categories: 2”­

12” Flanged; 2”-12” All Other; 14”-24” Flanged; Greater than 24” Flanged; Greater than 

24” All Other. Members’ initial submissions would include annual data for 2006, 

monthly data for 2007, and monthly data for 2008. (CX 1479 at 001; CX 1329 at 009; 

CX 0160 at 002; CX 1479 at 001; McCutcheon, Tr. 2417)). 

1142.	 The data collected and reported by SRHW for DIFRA was organized in categories of 

Fittings (2” through 12”, 14” through 24”, larger than 24”, and flanged versus non165 
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flanged) that McWane used in its blue books, and that are common in the industry. (CX 

0052; Tatman, Tr. 535-536). 

1143.	 The shipment tonnage data gathered by SRHW did not distinguish between Domestic 

Fittings and non-Domestic Fittings and did not indicate whether the tonnage was sold 

into open preference or domestic preference jobs. (Joint Stipulations of Fact, JX 0001 

¶ 18). 

1144. {

 (E.g., CX 2334 at 002, in camera 

{ 

} 

1145.	 U.S. Pipe did not attend the April 25, 2008 call, and agreed to accept whatever decision 

was made by the others regarding reporting issues. (CX 0160 at 002; CX 1479 at 001). 

1146.	 McWane expected that the DIFRA members would receive the first aggregated DIFRA 

report soon after the May 15, 2008 data submission deadline. (Tatman, Tr. 487). 

1147.	 On May 5, 2008, Mr. Long asked the DIFRA members to confirm their agreement on the 

reporting procedures for the DIFRA information exchange. (CX 0160 at 001 (“Having 

heard no dissent, can we assume everyone concurs with these reporting procedures and 

parameters, so that reporting can begin by mid-May? Please confirm.”); Tatman, Tr. 

487). 

1148.	 In response to Mr. Long’s May 5, 2008 email, Mr. Brakefield replied that day that Sigma 

would send its data “this week.” (CX 0159 at 001; RX-580 at 001, Brakefield, Tr. 1286). 

Mr. Brakefield also made Mr. Rybacki aware that the DIFRA reporting would begin in 

May 2008. (Rybacki, Tr. 3549; CX 1089 at 001). 

1149.	 Also on May 5, 2008, Mr. Tatman responded to Mr. Long’s May 5, 2008 email, stating 

that McWane would send its data “early next week” – ahead of the May 15 deadline. 

(CX 0160 at 001; Tatman, Tr. 487-488). Mr. Brakefield forwarded Mr. Tatman’s email 

to Mr. Rybacki. (CX 1089 at 001). 

1150.	 Star did not immediately reply to Mr. Long’s April 25, 2008 or May 5, 2008 emails. 

(RX-580 at 001). 

7.4.5	 Star Was a Reluctant Participant in DIFRA 

1151.	 Star was openly reluctant to participate in DIFRA. (CX 1092 at 001 (Pais observing that 

data was submitted only “after a fair amount of unease by Star”); CX 1187 (Tatman 

noting that “at least one member is being somewhat drug to the party”)). 

1152.	 Star initially refused to join DIFRA. (McCutcheon, Tr. 2411). Star was repeatedly asked 

by Mr. Pais, Mr. Rybacki, and Mr. Brakefield to join DIFRA, and politely declined the 

invitations for about one year before finally agreeing to join. (McCutcheon, Tr. 2412­

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2413; CX 2538 (McCutcheon, IHT (Vol. 2) at 242) (“I fought it, for quite some time, and 

just politely fought it by just saying, no, politely, no, and they kept pushing it.”)). 

1153.	 Mr. McCutcheon thought that joining DIFRA was a bad idea. He did not see a benefit of 

being in an association with competitors, did not see a real clear goal that would benefit 

Star, and was uncomfortable trusting his competitors. (McCutcheon, Tr. 2413). He did 

not think it was a good thing to have an association of competitors, and believed that 

“[w]e’re competitors for a reason, and I’d rather compete.” (CX 2539 (McCutcheon, 

Dep. at 191)). 

1154.	 Mr. McCutcheon also feared that DIFRA would allow Star’s competitors to get 

information on Star Pipe, and did not think that was healthy. (McCutcheon, Tr. 2414; see 

also CX 2068 (McWane learned from DIFRA data that Star and Sigma had taken more of 

McWane’s share than previously thought)). 

7.5	 In May and June 2008 McWane Agreed to a Further Price Increase 

Conditioned Upon Sigma’s and Star’s Participation in the DIFRA 

Information Exchange 

1155.	 In May and June of 2008, McWane agreed to a further price increase in return for 

Sigma’s and Star’s participation in the DIFRA information exchange. (Infra ¶¶ 1156­

1259). 

7.5.1	 Sigma Remained Eager for a Further Price Increase, and Sought to 

Demonstrate to McWane That It Had Complied with the Tatman 

Plan’s Call for the Elimination of Project Pricing 

1156.	 In April 2008, Sigma remained eager for further price increases, and sought to 

proactively demonstrate to McWane that it had complied with the Tatman Plan’s call for 

the elimination of Project Pricing. (Infra ¶¶ 1157-1173). 

7.5.1.1	 Sigma Planned a Further, “Big Bold” Price Increase, and 

Lobbied McWane and Star for Support 

1157.	 In April 2008, Sigma was internally considering whether to raise Fittings price 

multipliers. (Pais, Tr. 1926; CX 1138 at 001; Rybacki, Tr. 3541-3542). 

1158.	 In an April 11, 2008 email to Sigma’s management team, Mr. Pais proposed a twopronged approach to increasing pricing: Sigma would announce significant multiplier 

increases (described by Mr. Pais as a “BIG BOLD MOVE”); and Sigma would curtail 

Project Pricing (described by Mr. Pais as Sigma’s “ill-fated ‘dual’ pricing approach for 

PW/JOBs”). Mr. Pais wrote as follows: 

Keeping with our ongoing effort to boost our Prices and hence 

GMs as our AIC keep rising due to sharp overseas raw material 

increases, which have finally caught up with the domestic scrap 

costs too, please find the proposed MULTIPLIER MAP that LR 

and I discussed 4/8 when he visited CRM. Though we would have 

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preferred a LIST PRICE increase, as it is generally deemed ‘safer’, 

we can also empathize with McWane’s trepidation about that route 

when multiplier have slide last 2 years by almost 20% -- not to 

speak of VRs which have climbed about 20% too. 

In the end, all we care about [is] a NET increase in ASP/MT which 

will ensure our maintaining -- an[d] even boosting -- our GMs 

despite the cost increases as we can benefit from Inventory profits 

as well, as we realized in 04. 

Despite the gloomy assessment -- both about the market and 

competition -- we have a very strong opportunity to lead and be a 

catalyst in boosting the Multipliers to another level, in ONE 

SHOT! It’s time BIG BOLD MOVES (BBM, baby!) and this MMap aims at just that... 

. . . 

I also think our pricing strategy needs to be a 1-2 punch -- taking 

this opportunity to also correct the ill-fated ‘dual’ pricing approach 

for PW /JOBs. I have also drafted a letter -- which LR can 

abbreviate as he does so well -- and I think we should launch this 

1-2 punch Monday 4/14 and make them effective 5/5/08. This illadvised ‘PW’ pricing has been suspiciously perceived by McWane 

as a way to get around the Market pricing and they will continue to 

resist any price boosts as they have truly lost market share and they 

suffer from very high inventory levels and very uncertain future 

since they also have substantial manufacturing commitments. We 

need to earn their TRUST and CONFIDENCE in our plan to 

improve the industry. So, it will take a measure of DISCIPLINE 

and MATURITY on our part too. It’s thru our gutsy example that 

we can and must draw the other to our cause and make them 

follow in a new paradigm that has worked well in other products -- 

DIP, V&H, Couplings etc. 

(CX 1138 at 001-002; Pais, Tr. 1926-1927; Rybacki, Tr. 3541-3546). 

1159.	 Mr. Pais attached a draft pricing letter to customers that explicitly stated that Sigma 

would cease to use any Project Pricing: 

As such, we wish to inform our customers that starting May 5, 

2008, all customer requests for quotations any Plant Work and 

Special Jobs will be processed using our prevailing national list 

price and our regional multiplier terms and we will cease to use 

any varying ‘special’ pricing. 

(CX 1138 at 004 (emphasis in original); see also Pais, Tr. 1917 (“[W]e tried to tell our 

customers we’re not going to give a different pricing for plant work and job and special 

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and underground. We’re going to have one, which we would like to use the list price and 

multiplier, and then depending on the horse trading, we will try to win the business on a 

case-by-case basis.”); Minamyer, Tr. 3144 (“project price” and “special price” are used 

interchangeably)). 

1160. In his cover email, Mr. Pais admitted that his intent behind the customer letter was to earn 

McWane’s “TRUST and CONFIDENCE in our plan to improve the industry.” (CX 1138 

at 001; see also CX 1132 at 002 (subsequent draft of same letter circulated by Mr. Pais on 

May 6, 2008); Pais, Tr. 1932 (Mr. Pais believed Sigma needed to show McWane that “we 

don’t exist merely to keep inflicting pain on them”)). 

1161.	 Later on April 11, 2008, Mr. Pais explained to a skeptical Sigma manager that Sigma 

“will NOT – and can NOT – do this unilaterally,” but that “SIGMA/[McWane] may have 

to be patient and tolerant [of Star] to a certain extent as long as we maintain our volume.” 

(CX 1137 at 001; Pais, Tr. 1935-1937). All in all, Mr. Pais concluded, “THE BENEFITS 

OF THESE SIGNIFICANT BOOST IN PRICING FOR ALL [FITTINGS] ARE TOO 

GREAT TO IGNORE OR BE SKEPTICAL ABOUT!” (CX 1137 at 002 (emphasis in 

original); Pais, Tr. 1938). 

1162.

 (Rybacki, Tr. 3635-3636, in camera; Rybacki, Tr. 

3610, 3617, in camera, { 

}; CX 1621-A at 099-100, in camera (Rybacki telephone records); 

supra ¶¶ 758-760 (detailing telephone records)). 

1163. {

 (Rybacki, Tr. 3635-3636, in camera; CX 1621-A at 

098, in camera (Rybacki telephone records); supra ¶¶ 761-763 (detailing telephone 

records)).} 

1164.	 {

 (Rybacki, Tr. 3638, in camera; Rybacki, Tr. 3610, 3617, in 

camera, { 

}; CX 1621-A at 104-105, in camera (Rybacki telephone records); supra ¶¶ 

764-765 (detailing telephone records)). 

1165.	 Mr. Tatman later noted, in his April 16, 2008 Executive Report for the first quarter of 

2008, that Sigma had communicated its desire for a further price increase: 

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With costs continuing to rise in China, Sigma has recently been 

putting out feelers on executing another price increase. Their 

communications appear to be testing our acceptance or resistance 

to supporting their prior announced then retracted January list price 

increase. 

(CX 1564 at 005; see also CX 2484 (Tatman, Dep. at 117-118) (discussing CX 1564)). 

1166.	 On April 18, 2008, Mr. Pais told his management team in an email that he believed Star 

would follow Sigma’s price increase, but that McWane was more “skeptical” and 

“CAUTIOUS,” and that therefore “WE WILL HAVE TO INFLUENCE THEM 

THROUGH OUR SINCERITY AND CLARITY OF OUR PLANS AND ACTIONS.” 

(CX 1134 at 001, 002; Pais Tr. 1942-1943 (“Q. . . . The ‘them’ in that sentence, that’s a 

reference -- is that a reference to McWane and Star, sir? A. Possibly.”)). 

1167.	 Mr. Pais wrote in that email that Sigma’s April 2008 price increase letter should “include 

one line to signal SIGMA’s strong commitment to ‘clean up’ our pricing.” (CX 1134 at 

001; Pais, Tr. 1939-1940 (“clean up our pricing” referred to an effort to “streamline” or 

“reduce the variations” in Sigma’s pricing)). 

7.5.1.2	 Sigma Prematurely Announced Its Price Increase After the 

DIFRA Members Reached Agreement on Reporting 

Procedures 

1168.	 On or about April 25, 2008, the same day that McWane, Sigma, and Star reached an 

agreement to exchange information through DIFRA and settled on the corresponding 

reporting procedures (CX 0160 at 002), Sigma sent out new customer letters announcing 

that it would institute multiplier increases of up to ten multiplier points, to be effective 

May 19, 2008. (CX 0862 at 001-002 (Star email, dated April 25, 2008 at 4:18 pm: “Here 

is the Sigma fitting increase letter that just hit the streets today.”); see also CX 0137 at 

003 (version faxed to Ferguson on April 27); Tatman, Tr. 493-494; CX 1855 (revised 

draft emailed by Rybacki to Sigma M20 on April 24); Brakefield, Tr. 1278; RX-052 (Pais 

email instructing regional managers to send out letter on April 25); Pais, Tr. 1944; CX 

1858 (Sigma regional manager forwarding letter on April 25 to be sent out that day); 

Rybacki, Tr. 3551-3552). 

1169.	 The effective date for Sigma’s April 25, 2008 price increase announcement was May 19, 

2008, which was four days after the first DIFRA data was due to be submitted to SHRW 

and therefore the approximate date on which the members expected the first DIFRA 

report. (CX 0862 at 002; Tatman, Tr. 487. (CX 0862 at 001). 

1170.	 The new, higher multipliers announced by Sigma in its April 25, 2008 price increase 

letter were intended to apply to all of Sigma’s Fittings sales so that all of Sigma’s Fittings 

prices would be at one level. (Pais, Tr. 1943; RX-051 at 0001). 

1171.	 In its April 25, 2008 price increase announcement to customers, Sigma specified that 

“[o]nly orders that are placed before May 19, 2008 with a specific shipping date will be 

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honored and any jobs that are held for release will be subject to the new multipliers.” 

(CX 0862 at 002 (emphasis in original); CX 0176 at 002 (emphasis in original)). 

1172.	 McWane received a copy of one of Sigma’s multiplier increase letters on April 25, 

2008, and thought that the price increase that Sigma was announcing – an estimated 18% 

to 40% in the region covered by the letter – was too high to “stick.” (CX 0176 at 001; 

Tatman, Tr. 490-491). Mr. Tatman forwarded the letter to Messrs. McCullough and 

Walton, calling it “interesting reading,” and noting that “I don’t think any of us truly 

believe that degree of net price will stick.” (CX 0176 at 001; Tatman, Tr. 490-491). 

1173.	 On May 7, 2008, Star announced multiplier price increases that matched Sigma’s, 

effective May 19, 2008. (CX 0037 at 001; McCutcheon, Tr. 2419-2420; CX 0819; CX 

2538 (McCutcheon, IHT (Vol. 2) at 457-458); Minamyer, Tr. 3209; CX 0816; CX 0817; 

CX 0818; CX 0819; CX 0820; CX 0821; CX 0822; CX 0823). 

7.5.2	 McWane’s May 7, 2008 Coded Letter Invited Sigma and Star to 

Collude by Requiring Participation in DIFRA in Exchange for 

Fittings Price Increases 

1174.	 McWane’s May 7, 2008 customer letter was an invitation to collude directed at Sigma 

and Star, whereby McWane would agree to Fittings price increases if its competitors 

participated in DIFRA. (Infra ¶¶ 1175-1191). 

1175.	 Mr. Tatman studied Sigma’s April 2008 price increase announcement and concluded that 

Sigma’s large proposed price increase was undesirable as it would likely lead the industry 

back to Project Pricing and “instability.” (CX 0137 at 001; Tatman, Tr. 495). 

1176.	 In a May 5, 2008 email to Mr. McCullough, Mr. Tatman linked Sigma’s recently 

announced price increase to the DIFRA data he expected to receive in a few weeks’ time: 

“Although the Sigma announcement represented an increase range of 20% to 40%, I 

don’t believe we would follow that lead regardless of the DIFRA data as it would lead to 

instability.” (CX 0137 at 001). 

1177.	 Rather than blindly following Sigma’s announced price increase, Mr. Tatman proposed a 

potential price increase ranging from 8% to 12%, and attached a draft customer letter that 

“would align with the approach of waiting until the DIFRA data is available before 

announcing any price actions.” (CX 0137 at 001). 

1178.	 Mr. Tatman and Mr. McCullough decided to wait “until the DIFRA data is available 

before announcing any price actions.” (CX 2484 (Tatman, Dep. at 132) (Mr. 

McCullough wanted to have the DIFRA data before announcing any price action); 

Tatman, Tr. 494-496; CX 0137 at 001; CX 2484 (Tatman, Dep. at 136) (one of the 

reasons McWane announced that it was delaying a price action was that it wanted to wait 

for the DIFRA data, which it did not yet have)). 

1179.	 The draft customer letter that Mr. Tatman emailed to Mr. McCullough on May 5, 2008 

stated that McWane would wait before announcing any price increases until it had 

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“updates” on several unnamed “factors” that would become available at the same time 

McWane expected to receive the first DIFRA report: 

Since several misperceptions are starting to circulate, we wanted to 

send out this general communication to clearly define our intention 

in regards to any future pricing actions. 

Before announcing any price actions we carefully analyze all 

factors including: Domestic and Global inflation, market & 

competitive conditions within each region as well as performance 

against our own internal metrics. We are currently waiting on 

updates for several factors but anticipate being able to complete 

our analysis towards the middle of the month. At that point we 

will be sending out specific letters to each region detailing 

changes, if any, to our current pricing policy. 

(CX 0137 at 002 (emphasis added)). 

1180.	 McWane believed that by announcing a 20% to 40% price increase in advance of receipt 

of the first DIFRA report, Sigma had acted under the “misperception” that McWane 

would join a price increase prior to actual receipt of the DIFRA data. (CX 0137 at 001, 

002; Tatman, Tr. 492-493 (admitting that he prepared the draft customer letter referring 

to “misperceptions,” and circulated the letter for discussion internally together with a 

copy of Sigma’s price announcement)). 

1181.	 McWane sent the final version of this letter to its customers on May 7, 2008. (CX 0137 

at 002; CX 0138; see also CX 2484 (Tatman, Dep. at 136) (letter drafted by Tatman); CX 

2477 (Jansen, Dep. at 254-255) (Mr. Tatman wrote the May 7, 2008 letter); CX 2170 at 

001; Tatman, Tr. 499-500). 

1182.	 McWane’s May 7, 2008 letter did not communicate any specific change in McWane’s 

prices; instead, it communicated in veiled terms that McWane would not yet follow 

Sigma’s announced price increase, and that it would support higher prices only after it 

received the DIFRA report: 

We are sending this general communication to our waterworks 

distribution customers to more clearly define our intention in 

regards to future pricing actions. 

Before announcing any price actions, we carefully analyze all 

factors including: domestic and global inflation, market and 

competitive conditions within each region, as well as our 

performance against our own internal metrics. We anticipate 

being able to complete our analysis by the end of May. At that 

point, we will send out letters to each specific region detailing 

changes, if any, to our current pricing policy. 

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For planning purposes only, we expect for regions with a change 

that multipliers will increase in the range of 6% up to 16% 

effective June 16th. 

(CX 0138 (emphasis added); CX 0526; CX 2170 at 002; Tatman, Tr. 499-502). 

1183.	 Mr. Tatman testified that one “factor “ that he was waiting for before issuing a price 

increase was McWane’s monthly financial data for April 2008, as set forth in McWane’s 

monthly financial reports known as “blue books.” Mr. Tatman receives the blue books 

five days after the close of each month, and knew that McWane’s internal blue book data 

through April 2008 would be available by the second week of May 2008. (Tatman, Tr. 

501, 818-819). 

1184.	 Mr. Tatman believed that McWane would receive the DIFRA data in time to “complete 

[its] analysis by the end of May” and make a pricing decision that would be effective 

June 16, as provided in McWane’s May 7, 2008 letter to customers. (CX 2170 at 002; 

Tatman, Tr. 500-503). 

1185.	 Mr. Tatman conceded at trial that McWane was waiting for the first DIFRA report before 

issuing the price increase. (See infra ¶¶ 1208-1221). 

7.5.2.1	 The Coded Language in McWane’s May 2007 Letter Was 

Meaningless to Its Distributor Customers 

1186.	 McWane’s Distributor customers, to whom the May 7, 2008 letter was ostensibly 

addressed, consistently testified that McWane’s description of the factors it would 

consider before raising prices did not help them run their business, even for planning 

purposes, and was meaningless “fluff.” (CX 2516 (Sheley, Dep. at 153 (“Q. But the 

previous paragraph has no meaning to you? A. No. In my words, that’s fluff.”); Sheley, 

Tr. 3424-3425 (the sentence “Before announcing any price actions, we carefully analyze 

all factors including: domestic and global inflation, market and competitive conditions 

within each region, as well as performance against our own internal metrics” in Mr. 

Tatman’s May 7, 2008 letter (CX 0138) had no meaning to Mr. Sheley as a Distributor); 

CX 2544 (Coryn, Dep. at 125) (“Q. Does Tyler Union telling you what factors they 

analyze help you run your business? A. No.”); CX 2510 (Groeniger, Dep. at 233-234) 

(“Q. But as far as the factors that they are analyzing, that doesn’t help you run your 

business? A. No. I cannot use this letter for any district or any contractor to get relief 

because they don’t know what it is, what it means and they don’t know the date that they 

are going to effectively change prices to where, and are they going to allow us to buy 

fittings until that date at a specific date or after that date, are they going to give us a grace 

period? This letter could mean to me they are going to give us a grace period, but we 

don’t know how much it’s going up, so it’s difficult.”); CX 2514 (Webb, Dep. at 105) 

(“Q. Does Tyler Union telling you what factors they analyze help you in your running of 

your business as a distributor of Waterworks products? A. I – I don’t see where it helps 

us.”); CX 2504 (Thees, Dep. at 96) (“Q. Does Jerry Jansen telling you as a distributor 

what factors they analyze help you run your business? A. No.”) (objections omitted)). 

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1187.	 The factors McWane claimed it would “analyze” before issuing a price increase were 

never before, and never after, included in pricing letters. (CX 2516 (Sheley, Dep. at 152­

153) (“You normally don’t see this.”); CX 2510 (Groeniger, Dep. at 231, 233-234); CX 

2544 (Coryn, Dep. at 124-125); CX 2504 (Thees, Dep. at 96)). Similarly, on a prior 

occasion on which McWane had declined to follow a Sigma price increase, McWane had 

not issued a similar letter. At trial, Mr. Tatman was unable to explain why McWane felt 

the need to issue its May 7, 2008 customer letter announcing that it did not intend to 

match Sigma’s increase, but had not felt the need to issue a similar letter the last time it 

had declined to follow a Sigma price increase, in October 2007. (Tatman, Tr. 501-502 

(unable to recall “another time where you sent out a letter like this where you announced 

that you were not increasing prices”)). 

1188.	 The 6% to 16% range for a possible price increase that was provided in McWane’s May 

7, 2008 letter was useless to customers for planning purposes. (Sheley, Tr. at 3443-3444 

(“Q: And the amount of the price change, that’s information you would need to know; 

right? If there’s going to be a price change, you want to know what it is. A: In the range 

of 6 to 16 percent doesn’t do me a lot of good.”)). 

1189.	 Mr. McCutcheon believed that the explanation contained in the McWane May 7, 2008 

letter, i.e., McWane was “carefully analyzing all factors,” etc., would not have been 

helpful to a Distributor, and that the only thing in the letter that would be of interest to a 

Distributor was the last sentence of the letter. (CX 0863 at 001 (copy of May 7, 2008 

letter); CX 0138 (same); CX 2539 (McCutcheon, Dep. at 178-179, 182); CX 2538 

(McCutcheon, IHT (Vol. 2) at 318-320) (third sentence of letter is not helpful to a 

Distributor, only the last sentence is helpful); McCutcheon, Tr. 2422 (McCutcheon saw 

the McWane May 2008 letter)). 

7.5.2.2	 The Other Suppliers Thought It Was Unusual for McWane to 

Send a Price Letter to Customers That Did Not Actually 

Announce a New Price 

1190.	 Mr. Rybacki recognized the language in McWane’s May 7, 2008 letter as out of the 

ordinary. (Rybacki, Tr. 3569 (“I did remember that part because I thought it was a little 

quirky for Jerry Jansen.”)). 

1191.	 When Mr. McCutcheon received a copy of McWane’s May 7, 2008 letter, he thought that 

the letter was “odd,” “arrogant,” and “humorous.” Mr. McCutcheon had never seen a 

price increase letter like that. In other instances in which a supplier chooses to take a 

price increase “he just announces we’re taking an increase.” (CX 2539 (McCutcheon, 

Dep. at 179)). 

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7.5.3	 McWane Withheld Its Agreement to a Price Increase Until the 

DIFRA Information Exchange Was Implemented 

7.5.3.1	 Sigma and Star Understood the Coded Message in McWane’s 

May 7, 2008 Letter and Delayed Their Announced Price 

Increase 

1192.	 Sigma and Star understood the coded invitation to collude in McWane’s May 7, 2008 

letter and delayed their announced price increases in response. (Infra ¶¶ 1193-1200). 

1193.	 Only the DIFRA members – including Sigma and Star – were aware that McWane was 

scheduled to receive DIFRA data “by the end of May.” (CX 0138 at 001 (McWane May 

7, 2008 coded pricing letter); CX 0160 at 002 (April 25, 2008 DIFRA conference call 

summary e-mail establishing reporting schedule)). 

1194.	 When it issued its May 7, 2008 letter, McWane expected that Sigma and Star would 

respond to that announcement. (Tatman, Tr. 508-509; CX 0431 (Tatman May 13, 2008 

email to McCullough: “Jerry is on a hunt for follow-up letters from Sigma and Star in 

response to our announcement.”)). 

1195.	 Mr. Rybacki received and read a copy of McWane’s May 7, 2008 letter. (Rybacki, Tr. 

3568). He noted that the letter provided an indicative range of pricing increases “for 

planning purposes,” but did not “firmly say that they were going up.” Mr. Rybacki was 

“leery” of the letter because it was “ambivalent.” (Rybacki, Tr. 3570-3571). 

1196.	 Sigma put most of its planned price increase on hold as a result of McWane’s May 7, 

2008 letter. (Rybacki, Tr. 3570-3572; CX 1734 at 001 (Greg Fox of Sigma forwarding a 

copy of McWane’s May 7, 2008 pricing letter within Sigma on May 8, 2008, with the 

following comments: “I am certain we will delay our announced increases to mirror their 

dates. In addition, I’m certain we’ll match their multipliers once published.”); RX-076 

(June 16, 2008 email from Sigma’s Greg Fox announcing a further delay of a Sigma price 

increase due to the delay in McWane’s announcement of a price increase because “we are 

forced to delay our increase until we ascertain the specifics of Union/Tyler’s increase 

from the market. Our increase will match U/T’s both in amount and implementation 

date.”)). 

1197.	 Sigma’s northeast region, however, was the lone region that decided to implement 

Sigma’s previously announced May 19, 2008 price increase, at least for some time, and 

Sigma lost business in that region as a result. (Rybacki, Tr. 3571-3572). 

1198.	 Star also put its planned price increase on hold as a result of McWane’s May 7, 2008 

letter. CX 0527 at 001 (Star’s Ramon Prado forwarding a Minamyer May 12, 2008 email 

to territory managers at Star, informing them that Star’s “current multiplier changes on 

fittings have been put on hold for the time being” and that “Tyler is not going up until 

June 16th and multipliers are yet to be determined,” and attaching a copy of McWane’s 

May 7, 2008 pricing letter); RX-060 at 001 (Minamyer May 12, 2008 email); CX 2526 

(Minamyer, Dep. at 185-186); Minamyer, 3213-3214; McCutcheon, Tr. 2424-2425; CX 

2537 (McCutcheon, IHT (Vol. 2) at 462)). 

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1199.	 In a May 13, 2008 email to Messrs. McCullough and Walton, Mr. Tatman observed that 

“Sigma and Star are verbally retracting the May 19th date. Nothing written has been uncovered yet. I suspect neither will put any hard copies out until they know what we’re 

doing and then I assume they will follow.” (CX 0367 at 001; Tatman, Tr. 509-510). 

1200.	 Sigma and Star never fully implemented the May 19, 2008 multiplier price increases that 

they had announced. (Tatman, Tr. 514 (“I don’t believe that they made those effective.”); 

CX 2430 at 001 (Star June 27 announcement following a subsequent McWane multiplier 

increase); CX 2253 at 001-003 (Sigma following same McWane multiplier increase)). 

7.5.3.2	 Star Understood the Coded Message in McWane’s May 7, 

2008 Letter and Immediately Agreed to Submit Its Sales Data 

to DIFRA 

1201.	 Star understood the coded invitation to collude in McWane’s May 7, 2008 letter and 

immediately agreed to submit its sales data to DIFRA. (Infra ¶¶ 1202-1207). 

1202.	 Star received a copy of McWane’s May 7, 2008 letter from HD Supply at 1:06 p.m. on 

May 7, 2008. (CX 0863 at 001; Minamyer, Tr. 3209-3210 (it was Mr. Minamyer’s 

normal practice to read McWane’s letters and share it with Mr. McCutcheon); 

McCutcheon, Tr. 2422-2423 (admitting that he saw the letter)). 

1203.	 Mr. Minamyer believed that the language in McWane’s May 7, 2008 letter indicating that 

McWane was “analyz[ing] all factors including: Domestic and global inflation, market 

and competitive conditions within each region, as well as our performance against our 

own internal metrics” would not matter to customers, but could have meaning to Sigma 

and Star. (CX 2525 (Minamyer, IHT at 86-87); CX 0138). 

1204.	 Star understood that McWane would not agree to increase prices until it had the actual 

DIFRA data in hand. Within hours of receiving McWane’s coded letter, Star’s Mr. 

McCutcheon responded to Mr. Long’s April 25, 2008 and May 5, 2008 emails regarding 

DIFRA reporting procedures, and confirmed to Mr. Long and to the other DIFRA 

members, including Mr. Tatman, that Star would submit its data to DIFRA. (CX 1085 at 

001 (Star confirming it will submit DIFRA data on the afternoon of May 7); 

McCutcheon, Tr. 2423; Brakefield, Tr. 1287). 

1205.	 At 4:45 p.m. on May 7, 2008, after responding to the May 5, 2008 email from Thad 

McCutcheon, Tr. 2426). 

submission), with the subject line “please call me on this.” (CX 0530 at 001;

Long’s April 25, 2008 email to Navin Bhargava (who would assemble Star’s DIFRA data 

Long, confirming that Star would submit its data, Mr. McCutcheon forwarded Mr. 

1206.	 {

 (McCutcheon, Tr. 2438-2442, in camera; Rybacki, Tr. 3642, in 

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camera; CX 1621-A at 085, 086, in camera (Rybacki telephone records); supra ¶¶ 771­

772 (detailing telephone records)). 

1207.	 On May 19, 2008, Mr. Bhargava sent Star’s sales data to Mr. McCutcheon for submission 

to DIFRA. (CX 0530 at 001; McCutcheon, Tr. 2427). 

7.5.3.3	 McWane and Sigma Closely Monitored Star’s Delay in 

Submitting Its Sales Data to DIFRA 

1208.	 McWane and Sigma closely monitored Star’s delay in submitting its sales data to DIFRA, 

repeatedly contacting DIFRA and Star to determine the status of Star’s submission. 

(Infra ¶¶ 1209-1221). 

1209.	 McWane submitted its DIFRA data to SRHW on May 14, 2008. (CX 1303 at 002). 

1210.	 {

 (Rybacki, Tr. 3642, in camera; CX 1621-A at 095, in camera 

(Rybacki telephone records); supra ¶ 773 (detailing telephone records); (Rybacki, Tr. 

3610, 3617, in camera, { 

} 

1211.	 Later on May 16, 2008, Mr. McCutcheon sent an email to Mr. Brakefield with the subject 

line “star’s tonnage data,” stating, “Hello Tom, sorry for the delay. The info should be in 

next week.” Mr. Brakefield forwarded the message to Mr. Pais and Mr. Rybacki. (CX 

1129; Rybacki, Tr. 3561-3563). 

1212.	 On May 21, 2008, while Mr. Tatman was in China, Mr. Tatman sent an email to 

Margaret Powell of SRHW stating that he was “hoping to receive the DIFRA reports 

since I believe all members have submitted data,” and asked for “an estimated date of 

when the reports will be available.” (CX 1335; Tatman, Tr. 515-516). 

1213.	 Mr. Tatman also contacted Mr. Brakefield directly, asking why the DIFRA report was 

late and why it had not been delivered as agreed upon in the conference call. (Brakefield, 

Tr. 1288 (“I started receiving either e-mails or calls from Mr. Tatman. . . . I think he had 

also tried to get in touch with the CPA and which I’d tried to warn him against that, that 

was not the proper way to handle it . . . .”)). 

1214.	 Mr. Brakefield told Mr. Tatman that Mr. Tatman should proceed through DIFRA’s 

attorneys. (Brakefield, Tr. 1288 (he “tried to get Mr. Tatman to understand that that was 

not the proper way to do that, we need to proceed with the attorneys in that kind of 

communication”)). 

1215.	 Mr. Tatman asked DIFRA counsel to contact the non-reporting DIFRA members to get 

their data in. (Tatman, Tr. 518). 

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1216.	 {

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 (Rybacki, Tr. 3644-3644, in camera; CX 1621-A at 084, in camera (Rybacki 

telephone records); supra ¶¶ 774-775 (detailing telephone records); Rybacki, Tr. 3610, 

3617, in camera, { 

} 

1217. On May 28, 2008, Mr. Herren of Bradley Arant sent an email to the DIFRA members 

reminding them of the previously agreed deadline for initial submission of data to 

DIFRA, and requesting, “If you have not already submitted this data for your company, 

please submit the data to Margaret [Powell at SRHW] at your earliest convenience.” (CX 

1090 at 001; Brakefield, Tr. 1289-1291). 

1218. Mr. Brakefield kept Messrs. Pais, Rybacki, and Rona updated as to the status of the 

DIFRA data submissions. (CX 1129; CX 1130; CX 1086; Rybacki, Tr. 3561-3565). 

1219.	 On May 30, 2008, Mr. Brakefield forwarded Mr. Herren’s May 28, 2008 email to Messrs. 

Rybacki, Bhattacharji, and Rona, noting “I will follow up on this and advise.” (CX 1090 

at 001; CX 1130 at 001 (Brakefield email forwarding to Messrs. Rybacki, Bhattacharji 

and Rona the Star May 16, 2008 commitment to submit the DIFRA data and stating that 

he would “stay on top of this and advise”); Brakefield, Tr. 1291). 

1220.	 Mr. Brakefield spoke with Mr. McCutcheon regarding Star’s late submission of data. 

(Brakefield, Tr. 1291-1292; McCutcheon, Tr. 2430). 

1221.	 {

 (McCutcheon, Tr. 2438­

2442, in camera; Rybacki, Tr. 3644-3645, in camera; CX 1621-A at 085, 086, in camera 

(Rybacki telephone records); Rybacki, Tr. 3564 (Q. Did you contact Mr. McCutcheon in 

late May, early June to encourage him to get his DIFRA data in? A. Again, I’m -- I don’t 

know specifically. Maybe. I don’t know.”); supra ¶¶ 776-778 (detailing telephone 

records)). 

7.5.3.4	 Star Submitted Its Data to DIFRA on June 5, 2008 Invoking 

the Language of McWane’s May 7, 2008 letter 

1222.	 Star submitted its data to DIFRA on June 5, 2008, acknowledging the suppliers’ 

agreement by invoking the language of McWane’s May 7, 2008 letter. (Infra ¶¶ 1223­

1226). 

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1223.	 Mr. McCutcheon submitted Star’s DIFRA data to SRHW at 12:37 p.m. on June 5, 2008. 

(CX 0049 at 001; McCutcheon, Tr. 2427; CX 2538 (McCutcheon, IHT (Vol. 2) at 304)). 

Star’s June 5, 2008, submission to DIFRA contained, inter alia, Star’s annual sales data 

for Fittings for 2006 and its monthly sales data for Fittings for 2007 and for January 2008 

through April 2008. (CX 0049 at 001-005). 

1224.	 Immediately thereafter, at 12:48 p.m. on June 5, 2008, Mr. McCutcheon notified Mr. 

Brakefield and Mr. Rybacki of Sigma by email that Star had submitted its DIFRA data, 

and included verbatim language from McWane’s May 7, 2008 letter: 

Good morning Mr. President. I just sent our info in. Sorry it took 

so long, but we were “carefully analyzing all factors including: 

domestic and global inflation, market and competitive conditions 

within each region, as well as performance against our own 

internal metrics.” (Does that look familiar?). 

(CX 1091; CX 0138 (May 7, 2008 letter); CX 2538 (McCutcheon, IHT (Vol. 2) at 311­

313) (Acknowledging that the verbiage above came from a McWane pricing letter to 

customers, and that this letter was likely intended to “poke at [Star] for trying to take a 

price list increase.”); Brakefield, Tr. 1292). 

1225.	 Mr. McCutcheon’s repetition of the McWane May 7, 2008 letter in its submission of the 

Star data to DIFRA reflects Mr. McCutcheon’s then state of mind that the price increase 

that was the subject of McWane May 7, 2008 was contingent upon Star and Sigma 

participating in DIFRA information exchange. (CX 1091; see also RX-697 

(McCutcheon, IHT (Vol. 2) at 315) (after investigation is initiated, Mr. McCutcheon can 

offer no plausible explanation for his reference to McWane’s May 7, 2008 letter, except 

to suggest, “the quote was just my attempt at humor.”)). 

1226.	 Several hours after receiving Mr. McCutcheon’s June 5, 2008 email, Mr. Brakefield 

reported to Messrs. Rybacki, Pais and Rona that Star had submitted its numbers: “looks 

like the numbers are in.” (CX 1086). 

7.5.3.5	 McWane Delayed Its Price Announcement Because of Delays 

in Receiving the First DIFRA Report 

1227.	 In late May and early June, 2008, McWane delayed its price announcement because of 

delays in receiving the first DIFRA report. (Infra ¶¶ 1228-1239). 

1228.	 On May 23, 2008, Mr. Tatman informed Messrs. McCullough and Walton that SRHW 

had not yet received the sales data from all of the DIFRA members, and that he had asked 

DIFRA’s counsel to follow up and contact the DIFRA members. Mr. Tatman suspected 

that the delay was due to Star and Sigma being “upset over their perception of McWane’s 

lack of support on pricing.” (CX 1186; Tatman, Tr. 517-518). 

1229.	 On May 24, 2008, Mr. McCullough responded to Mr. Tatman’s May 23, 2008 email by 

stating that McWane should “stand pat” on a new price increase until the DIFRA market 

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share data was available. Mr. Tatman and Mr. Walton agreed. (CX 1186; Tatman, Tr. 

518-521; CX 2479 (McCullough, Dep. at 224)). 

1230.	 McWane’s decision to “stand pat” on any price increase until it had received the DIFRA 

market share reports was “somewhat painful to the bottom [line] in the short term, [but it] 

would re-enforce the message we’ve been trying to drill in which when successful will 

pay long term dividends.” (CX 1186 at 001; Tatman, Tr. 519-520; see also CX 2484 

(Tatman, Dep. at 136)). 

1231.	 Mr. Tatman’s statement regarding “painful to the bottom [line]” was a reference to the 

short term pain to McWane’s financial bottom line that would result from delaying the 

price increase announcement. (CX 1186; Tatman, Tr. 520-521; CX 2484 (Tatman, Dep. 

at 136)). 

1232.	 Mr. Tatman admitted at trial that the “message we’ve been trying to drill in” was 

McWane’s unwillingness to “lose visibility of where the competitive level in the 

marketplace is.” (CX 1186; Tatman, Tr. 522 (message was that “we are not going to lose 

visibility of where the competitive level in the marketplace is”)). 

1233.	 On May 29, 2008, McWane already had a draft of a price increase letter ready to send to 

its customers, announcing a weighted average increase on blended Fittings of 

approximately 8%. (CX 1193 at 001; Tatman, Tr. 517). 

1234.	 On Mr. McCullough’s instructions, Mr. Tatman waited for the DIFRA data before 

issuing any price increase. (Tatman, Tr. 494-495 (“[G]etting the DIFRA data was 

important to my boss Leon.”)). 

1235.	 In a series of emails on June 10, 2008, Mr. Tatman pressed Ms. Powell at SRHW for 

timely turnaround of the aggregated DIFRA report. (CX 1334 at 002 (“[T]he week of the 

23rd is going to be difficult to accept.”); Tatman, Tr. 528-529; CX 2520 (Haley, Dep. at 

60-61) (Ms. Powell reported that Mr. Tatman was “harassing” her); see also CX 1332 at 

001 (Ms. Powell writing to Mr. Haley on June 10, 2008: “This same guy [Tatman] that 

was harassing me a month ago about getting him the reports asap (even though we didn’t 

have all the members reporting) is calling me again wanting everything completed this 

week.”); CX 2270 at 001, 002 (June 11, 2008 email from Herren to DIFRA members 

apologizing for the confusion surrounding initial reporting and asking members to “avoid 

direct communication between the individual members and [SRHW]”)). 

1236.	 Also on June 10, 2008, Mr. Tatman sent an email to Mr. Wood of the Bradley Arant law 

firm asking if DIFRA could use another accounting firm in order to get the DIFRA data 

more quickly. (Tatman, Tr. 530; see also CX 2269 at 002). 

1237.	 Mr. Tatman admitted at trial that the only new information that McWane received before 

issuing its June 17, 2008 price increase was the DIFRA data. (Tatman, Tr. 544 (“Q. Sir, 

the only new information that you received on the afternoon of June 17 was the DIFRA 

data; right? A. Yes. Q. And after -- once you received that information, between yourself 

and Mr. McCullough, you made a decision on price; is that right, sir? A. We elected to go 

with the lower number. Yes. Q. You elected to go with a lower number, 8 versus 12; is 

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that what you’re saying? A. Yes.”); see also supra ¶ 1183 (the availability of McWane’s 

internal financial numbers does not explain its delay in issuing a price increase)). 

7.5.3.6	 The First DIFRA Report Was Issued On June 17, 2008 

1238.	 McWane and the other DIFRA members received the first DIFRA report from SRHW at 

2:41 p.m. on June 17, 2008. (CX 0052 (email from Bree Holland of SRHW to Messrs. 

Tatman, Brakefield, Crawford, and McCutcheon attaching DIFRA reports for 2006, 

2007, and January through April of 2008); Tatman, Tr. 534-536, 936; Brakefield, Tr. 

1297-1298; Pais, Tr. 2121; McCutcheon, Tr. 2444-2445, in camera). 

1239.	 The first DIFRA report contained annual data for 2006, monthly data for 2007, and 

monthly data for the first four months of 2008. (CX 0052 at 003, 005, 007; Tatman, Tr. 

535). 

7.5.3.7	 McWane Issued a Price Increase Within Hours After Receiving 

the First DIFRA Report 

1240.	 McWane issued a price increase within hours after receiving the first DIFRA report 

(Infra ¶¶ 1241-1245). 

1241.	 Rick Tatman’s initial analysis of the first DIFRA report took less than 40 minutes. In 

that time, he did a quick market share analysis comparing the data with other 

benchmarks, such as data obtained from another information exchange in a related 

market, the Valve Manufacturer’s Association (VMA). (CX 0139 at 001; Tatman, Tr. 

536-537). Mr. Tatman provided his “initial observations” in an email to McWane’s 

management: 

1. 2006 baseline total DIFRA tonnage tracks very well with what 

we would have expected based upon walking the 2001 market data 

from the 421 hearings forward using the change in VMA units 

2. Our share loss for 2007 and Apr YTD 2008 is actually larger 

than what I expected. Note the DIFRA tonnage is not down as 

much over those period as the VMA unit data 

3. The “backed into” non DIFRA tonnage appears to be on the 

lower end of what we would have expected 

4. All points above suggest that data is accurate within reason 

which was probably the resistance to sending it out before we 

announced any price. 

5. The larger than expected share loss will make the task of getting 

it back more difficult, but of course will make victory all the more 

sweater [sic] in terms of the incremental financial benefits.” 

(CX 0139 at 001; CX 2068 at 001; Tatman, Tr. 536-537, 949-950). 

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1242.	 Later that same day, at 6:26 p.m. on June 17, 2008, less than four hours after receiving 

the DIFRA report, McWane issued its price increase letter, announcing an increase in 

Fittings multipliers effective July 14, 2008, and stating that the weighted average increase 

on blended Fittings and accessories was “approximately 8%.” (CX 1191 at 001 (letter to 

Glenn Fielding at HD Supply); CX 1576 at 003 (email to Mr. Doane and Mr. Thees at 

Ferguson attaching nationwide multiplier map); Tatman, Tr. 538, 544, 952; RX-644 

(Tatman, Dep. at 155); CX 0047 (multiplier increase letter to Southeastern states)). 

1243.	 In an email to Mr. Doane and Mr. Thees at Ferguson attaching the pricing letter, Mr. 

Tatman stated that “[t]he increase is significantly smaller than what I believe others have 

proposed, but we believe this level is rational given all factors considered.” (CX 1576 at 

003; Tatman, Tr. 544; 954-955 (referring to other proposed price increases by Sigma and 

Star)). 

1244.	 While Mr. Tatman conceded that he waited until after he had received the first DIFRA 

report before issuing McWane’s June 17, 2008 price increase letter (see ¶¶ 5.5.3.5), Mr. 

Tatman offered contradictory explanations at trial for how McWane used the first DIFRA 

report in issuing its June 17, 2008 price increase: 

a.	 Mr. Tatman initially testified that he used the DIFRA data to determine the magnitude 

of the price increase that McWane would announce: 

[W]e had two options discussed earlier in a brainstorming session 

for price increase, an 8 percent and a 12 percent. Because our 

share loss was greater than what we thought [based on DIFRA 

data], we went out with the 8 percent, which is consistent with the 

strategy I’ve been discussing all day long. 

(Tatman, Tr. 536-538; CX 0139 at 001; Tatman, Tr. 538 (“[W]e had two options, an 8 

percent and a 12 percent. The DIFRA data came in. It’s like oh, crap, the share loss 

is worse than we thought. What are we going to do? Let’s go with the lower number 

because we obviously must be getting beat on price again . . . .”); Tatman, Tr. 544 

(“Q. Sir, the only new information that you received on the afternoon of June 17 was 

the DIFRA data; right? A. Yes. Q. And after -- once you received that information, 

between yourself and Mr. McCullough, you made a decision on price; is that right, 

sir? A. We elected to go with the lower number. Yes. Q. You elected to go with a 

lower number, 8 versus 12; is that what you’re saying? A. Yes.)). 

b.	 In later testimony, Mr. Tatman claimed that while McWane was waiting to issue its 

price increase until it had received the DIFRA market share reports, Mr. Tatman did 

not need or use the DIFRA data to determine the magnitude of McWane’s pending 

price increase: 

[T]he decision in my mind was already made. . . . I was going with 

the lower number. And we just waited till the DIFRA data came in 

because Leon wanted to see that and [do] a quick analysis. I really 

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1245. 

1246. 

1247. 

1248. 

1249. 

didn’t need to look that hard at the DIFRA data because I knew the 

answer already. 

(Tatman, Tr. 957-958; CX 1193 at 001 (May 29, 2008 draft price increase letter 

reflecting 8% increase); Tatman, Tr. 539 (“My draft letter before the DIFRA data is 8 

percent. Now that we have the DIFRA data, that confirms it.”)). 

Mr. Page and Mr. McCullough also examined the DIFRA data, concluding that the 

market share losses reflected there had been a result of Project Pricing. (CX 2068 (June 

18, 2008 email exchange in which McCullough explains that “Sigma and Star were 

seeking an increase in the 25% range which we will not support as they continue to take 

share with special pricing,” and Page responds “This just reflects the lack of support and 

feedback we got from distribution as they wanted us to hold high price levels and buy 

under neath us.”)). 

7.5.3.8	 Star and Sigma Quickly Matched McWane’s June 17, 2008 

Price Increase 

{ 

(McCutcheon, Tr. 2447-2448, in camera; Rybacki, Tr. 3645-3646, in camera; CX 1621­

A at 088, 089, in camera (Rybacki telephone records); supra ¶¶ 781-782 (detailing 

telephone records)). 

On or about June 27, 2008, Star announced it would follow McWane’s price increase, 

and issued letters to its customers specifying the multiplier increases that it would 

implement to match McWane, effective July 14, 2008. (CX 2430 at 001 (Star June 27 

announcement for states with .30 multiplier); CX 2255 (Star June 27 announcement for 

states with .28 multiplier); CX 2252 (Star June 27 announcement for states with .33 

multiplier); Minamyer, Tr. 3216-3218; CX 2254 at 001-004 (preparing sales force for 

another round of multiplier increases and instructing them that they should follow the 

same procedures as previously announced before offering any Project Prices); Minamyer, 

Tr. 3216-3217; see also supra ¶¶ 972-996 (similar instructions circulated in January 

2008); McCutcheon, Tr. 2448, in camera). 

At least one of Star’s June 27, 2008 price increase letters was sent by Star directly to 

Craig Schapiro of Sigma, who forwarded it within Sigma with the comment “Looks like 

Star is sending their version of the TYLER letters....” (CX 2252 at 001; Rybacki, Tr. 

3573). 

On or about July 7, 2008, Sigma followed McWane’s price increase. (CX 2253 at 001­

003 (Sigma regional manager circulating Sigma multiplier increase letters matching 

McWane’s, noting that they would be faxed “to the marketplace” the next day and that “I 

believe it’s a confirmation of what the market already knows.”); see also Rybacki, Tr. 

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3574-3575 (“I wanted to go up as well. I wanted to make sure that we were locked 

step.”)). 

1250.	 On July 18, 2008, Mr. Tatman observed in the “Sales/Market/Competitive Environment” 

section of his Second Quarter 2008 Executive Report that “[b]oth Sigma and Star have 

communicated support of the July 14th price increase.” (CX 1562 at 004; Tatman, Tr. 

558). 

7.5.3.9	 Mr. Tatman Actively Policed the Prompt Submittal and 

Turnaround of Monthly DIFRA Reports 

1251.	 After DIFRA issued its first report, Mr. Tatman continued to actively police the timely 

monthly submittal of data and the prompt turnaround of DIFRA reports (Infra ¶¶ 1252­

1259). 

1252.	 The normal DIFRA reporting cycle involved member submission of data to SRHW by 

the 15th of the month, with the aggregated report sent to members for the 20th of the 

month, and if the 20th fell on a weekend, the following Monday. (Brakefield, Tr. 1316 

(“The normal reporting cycle was to report the previous month by the 15th, and hopefully 

they would end up sending that back out by the 20th. And if the 20th fell on a weekend, 

it would be the following Monday.”)). 

1253.	 Mr. Tatman contacted DIFRA’s accountants at SRHW directly regarding the timeliness 

of DIFRA reports. (Brakefield, Tr. 1314-1315; Brakefield, Tr. 1316-1317 (“Mr. Tatman 

had a lot of concerns because a couple of times . . . the numbers didn’t show up exactly 

when he thought they should, and he was constantly really creating some issues.”)). 

1254.	 On several occasions, Mr. Tatman contacted DIFRA members directly – without copying 

or going through DIFRA’s lawyers – regarding the timing of submission of data to 

DIFRA and receipt of DIFRA reports by members. (CX 2447; CX 2448). 

1255.	 On August 18, 2008 Mr. Tatman sent an email to Mr. Brakefield asking if the DIFRA 

reporting cycle was on schedule. (CX 2447; Brakefield, Tr. 1315-1316; Tatman, Tr. 552­

554). 

1256.	 At the time of Mr. Tatman’s August 18, 2008 email, Sigma had not yet submitted its data 

to SRHW, and Sigma submitted its July 2008 data to SRHW the very next day. (CX 

1318 at 001). 

1257.	 On September 23, 2008, Mr. Tatman sent another email to Mr. Brakefield asking if the 

DIFRA reporting cycle was on schedule. (CX 2448; CX 2447 (Tatman email to 

Brakefield: “To your knowledge are we now on a normal reporting cycle for DIFRA? If 

so all members should have reported by the 15th and the reports should be out by the 

20th.”); Brakefield, Tr. 1315-1317; Tatman, Tr. 556-557). 

1258.	 As with the prior month, Sigma had not yet submitted its data to SRHW, and it submitted 

its August 2008 data to SRHW three days later. (CX 1316 at 001). 

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1259.	 On several occasions, Mr. Brakefield instructed Mr. Tatman that such direct 

communications between DIFRA members, and between DIFRA members and SRHW, 

were inappropriate, and that communications should go through the association’s 

lawyers. (Brakefield, Tr. 1314-1317 (“Did you tell Mr. Tatman that it was inappropriate 

for him to contact you directly? A. Yes, sir, I did. On several occasions.”); Brakefield Tr. 

1288 (“I basically tried to get Wood Herren to make that call and then also tried to get 

Mr. Tatman to understand that that was not the proper way to do that, we need to proceed 

with the attorneys in that kind of communication.”)). 

7.6	 DIFRA Was Intended and Used to Facilitate Price Stability and 

Transparency Through an Information Exchange 

1260.	 Notwithstanding the potentially procompetitive purposes set forth in DIFRA’s Articles of 

Incorporation (such as industry standard setting, education, outreach, advocacy, and 

research), DIFRA’s actual objective, and the only activity it meaningfully engaged in, 

was the operation of an information exchange aimed at monitoring market shares, 

reducing competition, and stabilizing prices in the Fittings market. (Infra ¶¶ 1261-1337). 

7.6.1	 Original Purposes of DIFRA 

1261.	 DIFRA did not meaningfully engage in any of the salutary purposes listed in its Articles 

of Incorporation. (Infra ¶¶ 1262-1274). 

1262.	 Article III of the DIFRA Articles of Incorporation sets forth various purposes of the 

organization: 

(i) To promote the interests of the ductile iron fittings industry and 

to promulgate policies and conduct activities for the betterment of 

the ductile iron fittings industry, provided that all policies and 

activities of the Association be consistent with applicable federal, 

state and local antitrust, trade regulation and other laws and 

regulations; 

(ii) To provide members and others with the opportunity for 

discussion, education, advancement and improvement of the 

ductile iron fittings industry through meetings, seminars, 

publications, and other programs and activities; 

(iii) To advocate and publicize the needs, interests and merits of 

the ductile iron fittings industry to industry, the public; and the 

government; 

(iv) To assist in the development and establishment of standards 

with respect to the ductile iron fittings industry; 

(v) To acquire, prepare, publish and disseminate technical data and 

information relating to the ductile iron fittings industry; 

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(vi) To plan and conduct research and test programs for ductile 

iron fittings and other products of interest to the ductile iron 

fittings industry; and 

(vii) To do those things necessary or desirable for the 

accomplishment of any of the foregoing purposes and for the 

interest and benefit of the Association and its members, including 

the exercise of those powers which are authorized by the Act. 

(CX 0158 at 002-003; Tatman, Tr. 576). 

1263.	 DIFRA did not do anything to “promote the interests of the ductile iron fittings industry,” 

despite that being a purpose listed in its Articles of Incorporation. (Tatman, Tr. 576-577 

(“[T]hey did not do anything to promote the interests of the ductile iron fittings 

industry”); Brakefield, Tr. 1229-1234 (DIFRA did not actually do anything to pursue this 

purpose); CX 0158 at 002-003 (listing purpose in DIFRA Articles); CX 1480 at 004-005 

(same)). 

1264.	 DIFRA did not do anything to create “opportunity for discussion, education, 

advancement and improvement of the ductile iron fittings industry through meetings, 

seminars, publications or other programs and activities,” despite that being a stated 

purpose in the articles of incorporation. (Tatman, Tr. 577; Brakefield, Tr. 1230 (DIFRA 

never provided seminars, never issued publications); CX 0158 at 003 (listing purpose in 

DIFRA Articles); CX 1480 at 005 (same)). 

1265.	 DIFRA did not do anything to “advocate or publicize the needs, interests and merits of 

the ductile iron fitting industry to industry, the public and the government,” despite that 

being a stated purpose in the articles of incorporation. (Tatman, Tr. 577; Brakefield, Tr. 

1231 (DIFRA did not engage in any activities to advocate for the interests of the Fittings 

industry); CX 0158 at 003 (listing purpose in DIFRA Articles); CX 1480 at 005 (same)). 

1266.	 DIFRA did not do anything to “assist in the development and establishment of standards 

with respect to the ductile iron fittings industry,” despite that being a stated purpose in the 

articles of incorporation. (Tatman, Tr. 578; Brakefield, Tr. 1231-1232, 1256 (DIFRA did 

not establish or propose any Fittings standards, did not form a standards committee); 

Brakefield, Tr. 1328 (from 2005 until the present, DIFRA has never taken action to 

promote standards for Fittings); CX 0158 at 003 (listing purpose in DIFRA Articles); CX 

1480 at 005 (same); CX 2538 (McCutcheon, IHT (Vol. 2) at 246) (DIFRA never did any 

work on setting industry standards or industry codes); CX 2541 (Crawford, Dep. at 82) 

(U.S. Pipe representative recalls no DIFRA committees established to discuss industry 

standards)). 

1267.	 DIFRA did not do anything to “acquire, prepare, publish and disseminate technical data 

and information relating to the ductile iron fittings industry,” despite that being a stated 

purpose in the articles of incorporation. (Tatman, Tr. 578; Brakefield, Tr. 1232-1233; 

CX 0158 at 003 (listing purpose in DIFRA Articles); CX 1480 at 005 (same); CX 2541 

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(Crawford, Dep. at 83-85 (U.S. Pipe representative recalls no committees established to 

discuss technical aspects of Fittings)). 

1268.	 DIFRA did not do anything to “plan and conduct research and test programs for the 

ductile iron fittings and other products of interest,” despite that being a stated purpose in 

the articles of incorporation. (Tatman, Tr. 578; Brakefield, Tr. 1233; CX 0158 at 003 

(listing purpose in DIFRA Articles); CX 1480 at 005 (same)). 

1269.	 DIFRA never formed any committees. (Brakefield, Tr. 1236, 1256). 

1270.	 DIFRA never sought input from Fittings Distributors. (Brakefield, Tr. 1330). 

1271.	 DIFRA’s only operating expenses were payments to the law firm Bradley Arant, which 

were split evenly by the four members and were inclusive of SRHW’s fees. (Brakefield, 

Tr. 1272-1274; CX 1486 at 002 (meeting agenda item re: operating expenses)). 

1272.	 DIFRA has never filed tax returns, and DIFRA members have never paid dues to DIFRA. 

(Brakefield, Tr. 1323-1324). 

1273.	 Notwithstanding the various stated purposes set forth in the DIFRA Articles of 

Incorporation, the only thing that DIFRA did was to report aggregated sales data of its 

members Fittings sales data (by tons shipped). (Tatman, Tr. 577-578 (the only thing that 

DIFRA did was to aggregate data and send it out to the DIFRA members)). 

1274.	 The DIFRA information exchange (i.e., the DIFRA members’ submission of data to the 

accounting firm SRHW and SRHW’s subsequent distribution of aggregated reports of 

that data to the DIFRA members) did not relate to any of the purposes of DIFRA that are 

identified in the DIFRA Articles of Incorporation. (Brakefield, Tr. 1328). 

7.6.2	 McWane, Sigma and Star Intended DIFRA to Facilitate Their 

Information Exchange and Stabilize the Fittings Market 

1275.	 For each of McWane, Sigma and Star, the actual intended purpose of DIFRA was to 

facilitate the exchange of sales information and stabilize the Fittings market. (Infra 

¶¶ 1276-1296). 

7.6.2.1 Sigma 

1276.	 At trial, Mr. Rybacki testified that he believed DIFRA to be important because of the 

threat to the Fittings industry posed by PVC, and because Fittings linings and coating 

needed to be standardized; however, Mr. Rybacki conceded that DIFRA never took any 

action on the PVC threat, or standardizing linings or coatings. (Rybacki, Tr. 3533). 

1277.	 At trial, Mr. Pais testified to several purposes of DIFRA and Sigma’s reasons for 

participating in the DIFRA information exchange, including: 

a.	 Mr. Pais testified that he communicated to potential DIFRA members that visibility 

into the size of (and changes in the size of) the Fittings market by tonnage would help 

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with inventory management and was one reason to form the organization. (Pais, Tr. 

1971-1972, 1975-1976). 

b.	 Specifically, Mr. Pais believed that the market and market-share information 

generated by DIFRA could help Sigma and the other suppliers avoid over- or underproduction of Fittings and consequent lost profits for the industry. (Pais, Tr. 1983­

1985; CX 1088 at 001-002 (October 13, 2008 Pais email: “[T]he result of erroneous 

or misunderstood market and market share can lead to unwise and often costly 

marketing decisions, as McWane/Tyler themselves found in ‘06 - ‘07, to their 

detriment and to that of the whole industry!”)). 

c.	 Mr. Pais also testified that he communicated to potential DIFRA members that 

another benefit of DIFRA would be possible standardization of Fittings coatings and 

linings. (Pais, Tr. 1971-1972). 

d.	 Mr. Pais specifically denied that he expected that sharing Fittings sales information 

the DIFRA members would create a more stable market. (Pais, Tr. 1975 (“Q. Was it 

your expectation that by sharing this information you could create a more stable 

market? A. I don’t think that follows from that. And again, for me, “stable” was a 

very broad term. I was more focused on knowing the size of the market”)). 

1278. Mr. Pais’s trial testimony was impeached by Mr. Saha’s trial and deposition testimony: 

a.	 In 2004, Mr. Pais invited Mr. Saha, then at the small Fittings supplier, PCI, to join a 

new organization he wanted to start, DIFRA. (Saha, Tr. 1178-1179). 

b.	 Mr. Pais told Mr. Saha that DIFRA would be an organization like DIPRA, the Ductile 

Iron Pipe Research Association, and would require at least three members. (Saha, Tr. 

1179-1180, 11827). 

c.	 Mr. Pais informed Mr. Saha that DIFRA would operate an information exchange that 

would have required PCI to provide its Fittings sales information in tonnage and 

dollars. (Saha, Tr. 1187; CX 2519 (Saha, Dep. at 72-73) (Mr. Pais “explained to me, 

that . . . if we formed an organization where we turned in -- we had to turn in every 

quarterly our sales by product group and category and tonnage, and that we will -- we 

should stay within a range of our existing tonnage.”)). 

d.	 Mr. Pais explained to Mr. Saha that “it is hurting the business, all of us trying to 

compete,” and that Mr. Pais was seeking to organize DIFRA in order to “stabilize 

prices.” (Saha, Tr. 12028; CX 2519 (Saha, Dep. at 72-75)). 

7

 The cited trial testimony regarding the out of court statement of Mr. Pais is not cited for the 

truth of the matter asserted in the statement. (See Saha, Tr. 1179-1180). 

8

 At trial, the cited testimony regarding Mr. Pais’s out of court statements was admitted for 

impeachment purposes. (See Saha, Tr. 1211-1212). The cited testimony regarding Mr. Pais’s 

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e.	 Mr. Pais encouraged Mr. Saha to join DIFRA because having all the Fittings 

suppliers as DIFRA members would provide market stability on pricing. (Saha, Tr. 

12079

 (“The reasons were basically – it’s the same – he wanted market stability on 

pricing issues, and he felt that all the sellers of fittings belonging to an organization 

would give the stability on pricing.”)). 

f.	 Specifically, Mr. Pais explained to Mr. Saha that PCI would have to maintain its rank 

among suppliers, rather than growing its Fittings sales. (Saha, Tr. 1187-1188). Mr. 

Saha believed he would not be allowed to grow his sales tonnage beyond his then 

current levels at the time DIFRA was formed. (Saha, Tr. 1196, 1199). 

g.	 PCI ultimately did not join DIFRA because Mr. Saha believed doing so would require 

his company to curtail its growth. (Saha, Tr. 1185-1186, 1194, 1996). 

1279.	 Mr. Pais’s trial testimony on the purpose of DIFRA is contradicted by Mr. Pais’s own 

business documents: 

a.	 In a June 19, 2008 email to Sigma’s “M20” management group, Mr. Pais described 

the establishment and benefits of DIFRA: 

This is a huge step by Sigma and Star, in being able to demonstrate 

our willingness and commitment to strengthen our industry and 

signal our willingness to grow in a responsible manner. Though 

most of the initial benefit is intangible such as increased trust and 

respect between members, it is also the first step fro [sic] more 

substantial economic benefits in the future. 

(CX 1092 at 001; Pais, Tr. 1976-1978). 

b.	 In explaining his June 19, 2008 email, Mr. Pais testified that he was pleased that the 

DIFRA members had overcome “animosities and cultural differences,” and that he 

considered DIFRA an achievement “because for me, I always believed in the team 

concept, and . . . to me team means together everyone achieves more.” (CX 2528 

(Pais, Dep. at 124-125); see also Pais, Tr. 1978-1979 (explaining that “more 

substantial economic benefits” referred to the ability to manage inventory based on 

the size of the Fittings market and the ability to assess Sigma’s relative performance 

in different Fittings product segments based on size)). 

out of court statements should also be considered for the truth of the matters asserted therein, as 

statements of motive, intent, or plan under Fed. R. Evid. 803(3). 

9

 At trial, the cited testimony regarding Mr. Pais’s out of court statements was admitted for 

impeachment purposes. (See Saha, Tr. 1211-1212). The cited testimony regarding Mr. Pais’s 

out of court statements should also be considered for the truth of the matters asserted therein, as 

statements of motive, intent, or plan under Fed. R. Evid. 803(3). 

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c.	 In an October 2008 email sent to Sigma’s M20 group (approximately top 20 

managers) and to its two Frontenac board members, Mr. Florence and Mr. Kuehl, Mr. 

Pais described DIFRA as benefitting Sigma by creating “an opportunity to create trust 

and respect among fellow suppliers, which can lead to mature and disciplined pricing 

decision making in an appropriate and legally sound environment.” (CX 1088 at 001; 

Pais, Tr. 1982-1985). 

d.	 In a December 2008 email to Mr. Walsh, Mr. Bhattacharji and Mr. Rybacki, Mr. Pais 

wrote that DIFRA reassured McWane, Star and Sigma that their sales declines were 

due to the decline in the market and not due to competition: 

[A]ll competitors are shaken by the sever[e] decline in the market 

volume and thanks to DIFRA data, the 3 [McWane, Star, and 

Sigma] are somewhat reassured that it’s the market weakness 

that’s costing them volume and they are not losing to the 

competition.” 

(CX 1077 at 002; Pais, Tr. 2005-2006). 

e.	 In a February 9, 2009 letter from Mr. Pais to Sigma’s lender Ares Capital 

Corporation, Mr. Pais explicitly explained that DIFRA helped stabilize Fittings prices 

and preserve strong gross margins despite the weak Fittings market in 2008 because it 

enabled the suppliers to determine whether a loss in sales volume was due to overall 

market conditions or due to “cheating” by competitors: 

In Fittings, there are effectively 3 – McWane, Sigma and Star – 

and all suffer from the same challenges and there seems to be a 

great desire to improve the pricing and each one has demonstrated 

thru a reasonable amount of discipline, even being protective of 

our respective market share. This is where the monthly market 

size data produced by DIFRA, an industry association that SIGMA 

helped to form, with 4 supplier members fro [sic] Fittings (one, 

U.S. Pipe, actually is not a producer anymore, but a small player 

buying almost all their needs from SIGMA), helps maintain the 

pricing discipline, as the market and market share data point to a 

relatively consistent and stable market pattern. It has helped us 

not to allow the sharp market decline to be mistaken as a ‘loss of 

market share’, which mostly causes price reaction. Our [Gross 

Margins] have continued to be strong, throughout the year, even as 

the volumes have been weak. 

(CX 0313 at 004 (emphasis added); Pais, Tr. 1992-1996 (“Q. Sir, and my question is: 

In providing this information to your lender, Ares Capital, was Sigma intending to be 

truthful and transparent? A. The answer is yes.”)). 

1280.	 Mr. Pais’s trial testimony is also contradicted by his own prior sworn testimony in this 

matter: 

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a.	 Mr. Pais testified that “[t]o Sigma, it really helped to know that our loss of volume 

and the decline of volume compared to previous, or our targets, was a result of the 

market,” (CX 2528 (Pais, Dep. at 307-308); see also Rybacki, Tr. 3557 (testifying 

that Sigma’s motivation for participating in DIFRA was to confirm Sigma’s market 

share in Fittings)). 

b.	 Mr. Pais further testified that without the reassurance provided by DIFRA – i.e., “in a 

thoroughly competitive almost hostile environment” – the suppliers would have been 

prone to “mistaken diagnosis” of their declining volumes, making it harder to make 

the “right decision” on pricing and other competitive decisions. (CX 2527 (Pais, IHT 

at 86-87)). 

c.	 For example, if the DIFRA data showed that “[v]olume was certainly going down, 

but the market share was holding up” it would help Sigma know that it was not being 

threatened by McWane or Star. (CX 2527 (Pais, IHT at 80-87)). 

1281.	 While the DIFRA information exchange was active, Mr. Pais hoped that if Sigma were to 

announce a price increase, then McWane and Star would follow because of their 

knowledge from DIFRA data that their reduced volume was due to overall market decline 

rather than a loss of market share. (Pais, Tr. 2006). 

1282.	 After DIFRA had largely collapsed, (see infra § 7.8.5), Mr. Pais saw reviving DIFRA as 

instrumental to realizing a Fittings price increase. For example, on or about December 7, 

2009, Mr. Pais identified a “Top 10 goals” for Sigma’s top five managers for 2010 to 

include: “Exercise Pricing Leadership to realize a net increase of 5% in ASP, thru 

reviving DIFRA and attempting other Industry Associations.” (CX 1074 at 001 

(emphasis added)). 

1283.	 Mr. Rybacki believed that if that if the principal members did not submit their tonnage 

data to DIFRA, there was a distinct possibility that the association would fall apart. 

(Rybacki, Tr. 3564-3566 (“[I]f you don’t participate in the agreed-upon conditions, then I 

was afraid it might disband.”)). 

7.6.2.2 Star 

1284.	 Star’s motivation for joining DIFRA was to obtain the market share data that it would be 

able to obtain through the association. (McCutcheon, Tr. 2413 (testifying that he was 

persuaded to join DIFRA because “it would be nice to know what our market share 

was”); CX 2538 (McCutcheon, IHT (Vol. 2) at 241-243, 245)). 

1285.	 At the first DIFRA meeting he attended, Mr. McCutcheon asked the group what the 

purpose of the association was. In response, “nobody said anything about market share,” 

and Mr. Brakefield gave an answer “about doing things to help the industry, standards, 

codes, helping the, you know, the customer.” (CX 2538 (McCutcheon, IHT (Vol. 2) at 

245-246)). 

1286.	 Mr. McCutcheon did not believe that the purposes given by Mr. Brakefield were the real 

purposes of DIFRA. (CX 2538 (McCutcheon, IHT (Vol. 2) at 246) (“Q. Did you think 

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that was the real purpose of DIFRA? A. Never did.”); CX 2538 (McCutcheon, IHT (Vol. 

2) at 294-295) (McCutcheon never thought the purpose of DIFRA was to pursue 

standards or certifications; he thought the purpose of DIFRA was “for my competitors to 

get information”)). 

1287.	 While DIFRA discussed doing things that would collectively benefit the Fittings industry, 

Mr. McCutcheon believed that the only purpose of DIFRA was to facilitate the exchange 

of Fittings sales information among the competing suppliers. (CX 2538 (McCutcheon, 

IHT (Vol. 2) at 246) (“[O]ddly enough, . . . as soon as McWane got the information that 

they wanted, this is my opinion, as soon as they got what they wanted to get, there was 

never another conversation about having a meeting.”)). 

7.6.2.3 McWane 

1288.	 In the “Competitive Environment” portion of his April 29, 2008 presentation at 

McWane’s General Manager’s Meeting, Mr. Tatman reported on the upcoming 

availability of DIFRA data and his expectation that that data would help McWane track 

its market share and plan pricing strategy, stating that “DIFRA will start reporting after 

April,” and that the “Objective is to Regain 1Q Share Loss While Continuing to Lead 

Upward Stable Pricing.” (CX 2047 at 020). 

1289.	 The only activity that DIFRA ever engaged in was the exchange of sales data. (CX 2537 

(McCutcheon, IHT (Vol. 2) at 246); Tatman, Tr. 577-578; supra § 7.6.1). After the 

DIFRA members began to exchange sales data, McWane never asked for, and there never 

was, another meeting of the members of DIFRA. (CX 2537 (McCutcheon, IHT (Vol. 2) 

at 247)). 

7.6.2.4 Initial Inclusion of Dollar Amounts 

1290.	 DIFRA members initially planned to include dollar values of sales in addition to tonnage 

shipped, which would have allowed each firm to determine how their average price per 

ton compared with the industry average. (CX 2495 (Brakefield, Dep. (Vol. 1) at 109) 

(McWane proposed exchanging sales dollars information); CX 1333 at 007 (draft 

reporting form attached to January 2007 SRHW engagement letter showed dollar value of 

net sales); CX 1467 at 004 (draft Sigma submission from January 2007 showing dollars)). 

1291.	 McWane in particular wanted the DIFRA information exchange to include dollar 

amounts of sales. (Brakefield, Tr. 1242). 

1292.	 McWane submitted DIFRA data to SRHW in 2007 that included its Fittings sales in 

dollars. (CX 1331 (McWane February 16, 2007 submission to SRHW showing dollar 

amounts of sales)). 

1293.	 Sigma was prepared to provide sales information to DIFRA in dollars. (Brakefield, Tr. 

1244-1253); CX 1467 at 004 (draft Sigma submission from January 2007 showing 

dollars)). 

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1294.	 The DIFRA format that included dollars allowed DIFRA members to determine average 

price per ton of Fittings sales. (Brakefield, Tr. 1251). 

1295.	 As late as March 19, 2008, Mr. Long circulated to the DIFRA members a draft data 

reporting form that included dollar amounts of Fittings sales. (CX 1843 at 001, 006; 

Brakefield, Tr. 1253-1255). 

1296.	 Ultimately, however, the DIFRA reports aggregated Fittings sales in tonnage shipped 

only, and not in dollars. (See supra ¶¶ 1140-1141 (describing agreed reporting format)). 

7.6.3	 McWane, Sigma and Star Used the DIFRA Data to Monitor Their 

Market Shares, Detect Cheating and Inform Their Pricing Decisions 

1297.	 From the second half of 2008 and into 2009, McWane, Sigma and Star used the DIFRA 

data to monitor their market shares, detect cheating and inform their Fittings pricing 

decisions. (Infra ¶¶ 1298-1337). 

1298. The DIFRA data was collected, analyzed, and used by the DIFRA members for the 

purpose of determining and monitoring the members’ respective market shares in the 

Fittings market. (E.g., Tatman, Tr. 558-559 (McWane would analyze the data received 

from DIFRA each month to determine market share); CX 1712 at 001, in camera { 

}; McCutcheon, Tr. 2477­

2478, in camera { }; CX 1088 at 003 (October 13, 

2008, Pais email within Sigma reviewing DIFRA data and analyzing Sigma’s market 

shares and the assumed market shares of competitors based on DIFRA data)). 

1299.	 DIFRA helped McWane, Sigma, and Star overcome an impediment to reaching and 

sustaining collusive agreements: the need to adequately monitor the behavior of cartel 

participants and to detect and deter defections from the collusive strategies. (CX 2260 

(Schumann Rep. at 47, 49)). 

7.6.3.1 McWane Use of DIFRA Data 

1300.	 Internal McWane reports tracking market share trends relied on DIFRA data, including 

Mr. Tatman’s July 18, 2008 Executive Report for the second quarter of 2008. (CX 1562 

at 001 (Tatman email noting that report had been updated based on DIFRA data that had 

come in that morning); Tatman, Tr. 546). 

1301.	 Within a day of having received the first DIFRA report (with data through April 2008), 

Mr. McCullough emailed the market share findings to McWane’s CEO Ruffner Page, 

with an accompanying analysis of the implications for Fittings pricing strategy: continue 

to withhold full support for price increases until Project Pricing declines and McWane 

regains market share: 

I believe that until they feel prolonged profit margin pressures they 

will continue their historical practice of undisciplined market 

pricing. Until we see at least minor market share improvement I 

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am in favor of no price increase support in the utility fittings 

market. 

(CX 0139 at 001; CX 2479 (McCullough, Dep. at 230-231) (explaining that in the above 

passage of CX 0139 “they” referred to Sigma and Star, and perhaps other importers, and 

that “undisciplined market pricing” may be a reference to Project Pricing)). 

1302.	 The DIFRA market share and market share trend data gave the Fittings suppliers insight 

into their relative pricing levels. McWane was able to use the DIFRA sales report to 

determine that McWane was losing market share because Distributors were purchasing 

Fittings at discounted prices below McWane’s. (CX 2068 (Page email responding to Mr. 

Tatman’s market share analysis of the first DIFRA report: “This just reflects the lack of 

support and feedback we got from distribution as they wanted us to hold high price levels 

and buy underneath us.”); CX 2482 (Page, Dep. at 207- 209) (testifying that he 

interpreted McWane’s lost market share as being presumably caused by discounting)). 

1303.	 McWane then relied on the DIFRA data to determine the magnitude of its Fittings price 

increases; because the DIFRA data indicated McWane’s share loss was larger than 

McWane had believed, McWane only announced an 8 percent price increase, rather than 

the 12 percent increase that it had also contemplated. (Tatman, Tr. 537; see also CX 

1576; Tatman, Tr. 544). 

1304.	 In addition, Mr. Tatman used the DIFRA data to evaluate the success of the Tatman Plan 

and the compliance of the other suppliers with the January 2008 agreement to curtail 

Project Pricing. By early September of 2008, he had used the DIFRA data to conclude 

that the Tatman Plan was not working. Mr. Tatman wrote in a presentation that he 

emailed to Mr. McCullough and Mr. Walton on September 9, 2008 that McWane’s 

attempt to compress prices and lead price stability had been detrimental to its market 

share. (RX-616 at 0005 (observing, based on DIFRA data that “Leading price stability 

has been detrimental to share”); CX 1188 at 005 (same observation in a subsequent 

draft); Tatman, Tr. 972 (explaining his conclusion in that document that “[i]t was a plan, 

didn’t work”)). 

1305.	 Still, in that same document, Mr. Tatman held out hope that the DIFRA information 

exchange would enable McWane to coexist with its competitors without lowering its 

costs or providing better service, writing that “[o]ur competitors have both a lower 

average cost basis and a better service model which limits options for profitabl[e] share 

growth,” but that “DIFRA will eventually add some increased stability.” (RX-616 at 

0012; CX 1188 at 012). 

1306.	 On December 17, 2008, Mr. Tatman forwarded to Messrs. McCullough, Walton, and 

Jansen a detailed month-by-month market share analysis based on DIFRA data. (CX 

0362). 

1307.	 On January 21, 2009, Mr. Tatman sent an email to Messrs. Walton, McCullough, and 

Jansen forwarding and summarizing a spreadsheet entitled “McWane, Inc. DIFRA 

Market Share Analysis” covering DIFRA data through December 2008. In his cover 

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email Mr. Tatman drew conclusions regarding McWane’s Fittings market share 

performance based on the DIFRA data: “December was clearly our worst share 

performance for the year!” and that “Our share performance for the Sept-Dec. period is 

noticeably off from the May-Aug. period.” (CX 0656; Tatman, Tr. 560-564). 

1308.	 Mr. Tatman used the DIFRA data to draw conclusions regarding levels of competitor 

Project Pricing, and to plan McWane’s future pricing moves. In his January 21, 2009 

email forwarding the DIFRA Market Share Analysis, he stated: 

As we’ve historically seen, as the market volume tightens up our 

import competitors tend to be less and less disciplined with pricing 

and more and more creative with making and hiding deals. 

It’s still too early in the year to determine whether the new fiscal 

year will bring a change in behavior, but with the Jan MTD order 

trend and competitive feedback data my gut tells me I’m going 

have some tough pricing decisions to make during the 1st quarter. 

(CX 0656; Tatman, Tr. 560-562). 

1309.	 In a January 23, 2009, email to Mr. McCullough, Mr. Page responded to the December 

2008 DIFRA data, which had shown a McWane loss of market share: “Trying to not be 

emotional about it. But these numbers are infuriating. We have serviced our customers I 

assume and have the product they need, we are just being discounted against?” (CX 1226 

at 001). 

1310.	 Mr. Page then sent an email to McWane owner C. Phillip McWane, informing him that 

Sigma and Star had announced price increases in the “<10% range,” and that Mr. Page 

and Mr. McCullough had decided that McWane would not follow those increases “since 

we continue to lose market share to somebody.” (CX 2089 at 001). 

1311.	 Mr. Tatman formulated his recommendations for McWane’s April 2009 Fittings list price 

restructuring using DIFRA data. (Tatman, Tr. 279-280). 

1312.	 Mr. McCullough also viewed the DIFRA data as a way to measure price stability and 

market share when making pricing decisions. In a January 21, 2009 response to Mr. 

Tatman’s January 21, 2009 email, he wrote: 

My inclination is to “not” send [out] a revised multiplier notice and 

“not” send a letter of explanation but simply let our customers 

know that price instability has led to Tyler/Union market erosion 

and that we cannot support higher pricing until there is pricing 

stability and market share maintenance. 

(CX 2458 at 001; Tatman, Tr. 566-569). 

1313.	 Mr. McCullough expressed a concern to Mr. Tatman that the DIFRA reports may be 

inaccurate due to underreporting: 

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[B]eing pessimistic on this I will take a ‘wait and see’ attitude. 

Please get the data circulated promptly so we can analyze and 

reach a decision on pending price increase letter. I know we must 

have some confidence that our competitors are reporting accurately 

but it is entirely possible they will under report their sales. . . . 

(CX 1187). 

1314. Nonetheless, while Mr. Tatman acknowledged the possibility of underreporting, 

especially because Star was a reluctant participant in the DIFRA information exchange, 

Mr. Tatman felt confident that any gross under-reporting could be discovered fairly 

quickly: 

I would agree that since at least one member is being somewhat 

drug to the party . . . there is certainly a risk of under reporting. . . . 

Slight under reporting by a few thousand tons would be hard to 

find without an audit, but we flush out any gross under reporting 

fairly quickly. 

(CX 1187; Tatman, Tr. 528 (Mr. Tatman admitting that he is referring to Star)). 

7.6.3.2 Star Use of DIFRA Data 

1315. On or about June 17, 2008, Star received the DIFRA report compiling the data from 

McWane, Sigma, and Star for 2006, 2007, and January 2008 through April 2008. (CX 

0052 at 001-007; see CX 2538 (McCutcheon, IHT (Vol. 2) at 321)). 

1316. { } 

(McCutcheon, Tr. 2445, in camera). 

1317. {

Tr. 2445-2446, in camera; CX 1712 at 001, 004, in camera { 

; CX 1707 at 001, 006, in camera { 

; CX 1711 at 001, 002, 004, 006, in camera { 

1318.	 { 

McCutcheon, Tr. 2477-2481, in camera { 

McCutcheon, Tr. 2491-2492, in camera { 

 (McCutcheon, 

} 

}; 

}; McCutcheon, 

Tr. 2492-2496, in camera { }; CX 2525 (Minamyer, IHT 

at 21) (Star broke down the DIFRA data to estimate its market share and the market share 

of McWane and Sigma in each state in the country)). 

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1319. {

 (McCutcheon, Tr. 2482, in camera; see also CX 

2525 (Minamyer, IHT at 22) { 

} 

1320.	 {

 (CX 2334 at 001, in camera). 

1321.	 The DIFRA reports enabled Star to assess whether any decline of Star’s sales of Fittings 

was due to the decline of the economy or due to a decline in performance in comparison 

to McWane or Sigma. (CX 2538 (McCutcheon, IHT (Vol. 2) at 330)). Star would have 

had “definitely more uncertainty” as to how it was doing in the Fittings market without 

the DIFRA data. (CX 2538 (McCutcheon, IHT (Vol. 2) at 334, 336)). 

1322. {

 (CX 

1706, in camera), 

(RX-143, in camera). 

1323. { } (CX 2538 

(McCutcheon, IHT (Vol. 2) at 336) { 

; McCutcheon, Tr. 2446, in 

camera). 

7.6.3.3 Sigma Use of DIFRA Data 

1324.	 Sigma used the DIFRA data to measure its market share and to help formulate its pricing 

and marketing strategy: 

Q. But in October of ‘08, is that typically the time where you’re 

doing the planning for 2009, including whether you’re going to 

announce a price increase at the beginning of the year? 

A. That is correct. 

Q. And you would have used the DIFRA data – would you have 

used the DIFRA data as a guide to those discussions? 

A. Yeah. We would have certainly used it as some guide. 

. . . 

Q. At this point, in December of 2008, are you – you’re planning 

pricing strategy for 2009? 

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A. Certainly. As it is the norm in every December. 

Q. When Sigma was doing that pricing strategy planning, were you 

using the DIFRA data? 

A. Certainly. 

(Pais, Tr. 1986, 2002-2003). 

1325.	 On June 19, 2008, two days after receiving the initial DIFRA report, Mr. Pais sent to 

Sigma’s top 20 managers an analysis he created based on the DIFRA data that set forth 

Sigma’s Fittings market share (referred to as “SMS”) in each of the Fittings categories 

that were delineated in DIFRA data. (CX 1092 at 001, 004, 005; Brakefield, Tr. 1299; 

Pais, Tr. 1980-1981). 

1326.	 Sigma analyzed the DIFRA data both with and without Sigma’s OEM sales to ACIPCO 

in order to assess (by excluding ACIPCO) its market share in the segment of the Fittings 

market sold to Distributors. (Pais, Tr. 1980-1981). 

1327.	 On October 1, 2008, Mr. Pais directed Raju Kakani, Sigma’s IT Director, to prepare 

monthly reports of Sigma’s market share using DIFRA data. Mr. Kakani prepared such 

reports monthly under Mr. Brakefield’s supervision. (Brakefield, Tr. 1299, 1304-1305; 

CX 1848 at 001). 

1328.	 Mr. Bhattacharji, who was responsible for sourcing Fittings and managing Sigma’s 

supply chain, rarely looked at the monthly DIFRA reports. (CX 2523 (Bhattacharji, Dep. 

at 259)). 

1329.	 Aside from the generation of Sigma market share reports, Mr. Brakefield was unable to 

identify any specific use of the DIFRA data by Sigma in its business. (Brakefield, Tr. 

1308-1309; CX 2496 (Brakefield, Dep. (Vol. 2) at 154-155)). 

1330.	 On October 13, 2008, Mr. Pais drafted a lengthy email to Sigma’s top 20 managers 

analyzing the DIFRA data and Sigma market shares indicated by that data, and urging his 

managers to “discuss this important data as a source to guide our Pricing and marketing 

strategy in 09, with a clear goal to achieve an overall gain of at least 2%.” (CX 1088 at 

001, 004; Pais, Tr. 1986-1987). Mr. Pais added that “At this rather small level, it does 

not automatically mean we need to be disruptive or reckless with our pricing!” (CX 1088 

at 004; Pais, Tr. 1987-1988). 

1331.	 In May 2009, Mr. Pais sent an email to Sigma’s M20 group using DIFRA 2008 data to 

analyze market shares and to determine who had taken McWane’s “alleged loss of 4-5%” 

market share. (CX 0319 at 001). The email set forth detailed market share trend analysis 

based on the DIFRA data. (CX 0319 at 007; Pais. Tr. 1998-1999). 

1332.	 Sigma used the DIFRA data to track its Fittings market share and reassure itself that it 

was maintaining its share of the market even though it was losing volume in a declining 

market. As Mr. Pais told Sigma’s top managers, Sigma “kept up our DIFRA membership 

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thru 08 and had used the monthly data in an useful manner to keep track of both the total 

market size and our SMS (Sigma Market Share),” and as overall volume continued to 

decline in 2008, Sigma was “able to stay reassured that we were holding on to our 

[market share] . . . or close to it!” (CX 0319 at 002 (May 4, 2009 email from Mr. Pais to 

Sigma’s M20)). 

1333.	 Sigma carefully considered the DIFRA data to determine its market share and whether it 

needed to lower its prices to regain a loss of market share. Had the DIFRA data pointed 

to a substantial loss of market share by Sigma, then Sigma would have lowered prices to 

gain share. (CX 2527 (Pais, IHT at 85-86) (“If the DIFRA data pointed to that we were 

really losing market share, then we would have used price to get it back.”)). 

7.6.3.4 Sigma Correction of DIFRA Data 

1334.	 A Sigma audit detected errors in the data initially submitted to DIFRA, and Sigma 

voluntarily corrected these errors by resubmitting data on June 30, 2008. (RX-086 at 

0002; Brakefield, Tr. 1318). 

1335.	 The August 19, 2008 DIFRA report, reflecting data through July 2008, reflects the 

corrected Sigma data, whereas the original June 17, 2008 DIFRA report reflects the 

original, incorrect Sigma data. (Brakefield, Tr. 1318-1320 (discussing CX 1340 

(corrected report) and CX 0052 (report with errors)). 

1336.	 Sigma’s corrected sales figures represented an error of approximately .25% to 2% from 

Sigma’s previously reported sales data, and did not cause Mr. Brakefield to reevaluate 

any of the opinions he had previously formed based on the original DIFRA reports. 

(Brakefield, Tr. 1319-1321). 

1337.	 No DIFRA member ever formally requested an audit of data submitted by other members 

to DIFRA, and no such audit of a member’s submissions to DIFRA has been performed. 

(Brakefield, Tr. 1322-1323). 

7.7	 The Agreements Among McWane, Sigma, and Star Were Successful 

Through Most of 2008 Before Trust Began to Break Down in the Fall of 2008 

1338.	 The conspiracy among McWane, Sigma, and Star was largely effective through most of 

2008, resulting in reductions in Project Pricing, higher and more stable prices, and 

improved financial performance by the suppliers. (Infra ¶¶ 1339-1435). 

7.7.1	 The Suppliers Observed Reduced Project Pricing and Stabilized and 

Increasing Prices 

1339.	 Under the “Sales/Market/Competitive Environment” section of Mr. Tatman’s 2008 

Second Quarter Executive Committee Report, Mr. Tatman concluded that Project Pricing 

had “slowed” in May and June and that Sigma and Star had “communicated support” for 

McWane’s June 17, 2008 announced price increase (that was to be effective July 14, 

2008): 

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We continue to track the level of confirmed discounting and job 

pricing within our competitive action file. The level of activity 

appears to have slowed over the past several months probably 

driven by a combination of rising costs putting more pressure on 

price and more creative use of programs. 

Both Sigma & Star have communicated support of the July 14th 

price increase although Sigma’s method has been much less public 

or open from what they have historically done. The sales team is 

picking up spotted branch inputs, mostly in the Southeast, of still 

being able to place orders at the old multipliers, but it will be midAugust until we can make an accurate assessment of the adherence 

level to published pricing. 

(CX 1562 at 004; Tatman, Tr. 549-551, 558, 1061-1065; see also supra ¶ 1047 

(describing the low level of Project Pricing observed in McWane’s pricing protection 

logs for the first nine months of 2008)). 

1340.	 Star believed that the suppliers had been successful in their efforts to reduce Project 

Pricing. (CX 0814 (Minamyer email dated August 25, 2008) (“I know we have been 

very careful on special pricing and it seems to be working pretty good.”); McCutcheon, 

Tr. 2570-2571 (Mr. Minamyer provided this assessment to Mr. McCutcheon and to Star’s 

division managers in August 2008); see also infra § 7.7.5.4 (describing reduced levels of 

Project Pricing reflected in Star’s special project pricing reports)). 

1341.	 Sigma also noted the success – and prospect for further success – of the suppliers’ 

collaboration. On December 7, 2008, Mr. Pais emailed the Sigma management team, 

including Mr. Florence and Mr. Kuehl of Frontenac, with an assessment of the DIFRA 

data through October 2008: 

All in all, we can infer from the DIFRA data over the past about 6 

months that the 3 primary suppliers -- McWane, Sigma and Star -- 

may be at a relatively steady market share level, without any 

significant swings from one to the other. This in turn should bode 

well for a more mature and responsible pricing strategy for 09 

which focuses on realizing higher prices and hence better GMs to 

offset the loss of volume, which is inevitable for most of 09. 

(CX 1174 at 001 (emphasis added); Pais, Tr. 2000-2004 (“We were just hoping for a 

price increase, period, whether it came from some revelation or some opportunity or our 

salesmanship because that was -- at that point we were desperate for the revenue . . . .”)). 

1342.	 Mr. Pais’s May 4, 2009 market share graphs based on DIFRA data showed that Sigma’s 

Fittings market share stabilized shortly after the DIFRA information exchange began, and 

remained relatively stable (within .2 percentage points) for the balance of 2008. (CX 

0319 at 007; Pais. Tr. 1998-1999). 

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7.7.2	 McWane’s Fittings Prices and Financial Performance Improved 

1343.	 McWane’s Fittings prices increased and its financial performance improved as a result of 

the conspiracy. Its 2008 profits were better than its 2007 or 2009 profits, and the 

improvement was driven by improved pricing. (Infra ¶¶ 1344-1359). 

1344.	 Mr. Tatman’s presentation to McWane’s CEO and others at McWane’s April 29, 2008 

General Manager’s Meeting reported a 50% increase in profit on a 14% decline in sales 

for the Fittings business through the first four months of 2008. (CX 2047 at 004). 

1345.	 Mr. Tatman’s 2008 Second Quarter Executive Committee Report also reflects increased 

level of aggregate blended Fittings invoice prices through the first half of 2008. The 

average invoice price for 2007 was $2322 per ton, and the average invoice price for the 

first quarter of 2008 was $2576 per ton; April 2008 was $2712 per ton; May 2008 was 

$2632 per ton; and June 2008 was $2769 per ton. (Tatman, Tr. 546-548; CX 1562 at 

002). 

1346.	 McWane’s year-to-date Fittings profits through June 2008 increased $5.209 million over 

the prior year, despite a 24% reduction in volume, in part because Fittings were sold at a 

higher price in 2008 compared to 2007. (CX 2145 at 006 (July 8, 2008 McWane budget 

variance report); CX 2481 (Nowlin, Dep. at 133-134)). 

1347.	 McWane’s year-to-date Fittings profits through July 2008 were up over $5.4 million over 

the prior year based on over $11.4 million in pricing gains, even as volumes fell 24%. 

(CX 1569 at 005 (August 13, 2008 McWane budget variance analysis); Tatman, Tr. 831­

834). Non-Domestic Fittings prices rose between July 2007 and July 2008 from $1,730 

to $1,981 per ton. (CX 1569 at 003; Tatman, Tr. 823, 826-831). 

1348.	 McWane’s year-to-date Fittings profits through August 2008 were up $5.852 million over 

the prior year notwithstanding a 25% reduction in volume, in part because Fittings were 

sold at a higher price in 2008. (CX 2123 (September 8, 2008 McWane budget variance 

report); CX 2481 (Nowlin, Dep. at 130-132)). 

1349.	 McWane’s year-to-date Fittings’ profits through September 2008 were up $5.595 million 

over the prior year notwithstanding a 24% reduction in volume, in part because Fittings 

were sold at a higher price in 2008. (CX 2124 (October 7, 2008 McWane budget 

variance report); CX 2481 (Nowlin, Dep. at 129-130)). 

1350.	 Although the U.S. was in a recession and the Fittings business was hit hard by rising 

costs and decreasing volumes, the gross profitability of McWane’s Fittings business on a 

percentage basis for the first nine months of 2008 was higher than that for every full year 

from 1999 through 2007. (CX 0120 at 006; Tatman, Tr. 840-841). 

1351.	 According to a profitability history analysis prepared by Mr. Tatman in October 2008 and 

based on data pulled from McWane’s official financial records, McWane’s Fittings 

business gross profit margin for the first nine months of 2008 was 22%, as compared to 

15.4% for 2007, 19.6% for 2006, 20.6% for 2005, 14.9% for 2004, 0.0% for 2003, -0.4% 

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for 2002, -4.2% for 2001, 7.5% for 2000, and 16.1% for 1999. (CX 0120 at 006; Tatman, 

Tr. 837-838, 840-842). 

1352.	 In October 2008, Mr. Tatman’s forecasts for the full year 2008 showed that, while sales 

were expected to decline by approximately 24% from 2007 to 2008 (from 59,659 tons to 

1353. 

1354.	 The January 14, 2009 McWane budget variance analysis reflects a year over year 

increase in non-Domestic Fittings prices between 2007 and 2008 from $1,994 to $2,098 

1355. 

1356. 

an estimated 46,079 tons), gross margins were expected to increase from 15.4% to 

20.5%, and gross profit was expected to increase from $20.3 million to an estimated 

$23.5 million. (CX 0120 at 006; Tatman, Tr. 836-837). 

McWane’s Fittings profits for the year 2008 were up more than $4.3 million from the 

prior year, in part based on over $16.2 million in pricing gains, even as volumes fell 26%. 

(CX 2126 at 006 (January 14, 2009 McWane budget variance analysis); Tatman, Tr. 

834). 

per ton. (CX 2126 at 004; Tatman, Tr. 834). 

McWane’s year-to-date Fittings’ profits through October 2009 were down $7.36 million 

compared to the same period in 2008, with approximately $1.18 million of the drop being 

attributable to Fittings were sold at lower prices in 2009 than in 2008. (CX 2153 at 006 

(November 6, 2009 McWane budget variance report)). 

{

 (CX 2416 at 043, in camera {( 

}; Tatman, Tr. 849). 

1357. {

(CX 2416 at 043, in camera 

{ }; Tatman, Tr. 846-847, in camera). 

1358. {

 (CX 0622 at 003, 005). 

 (CX 0622 at 005 (Tatman January 19, 2009 sales presentation); Tatman, 

Tr. 853, in camera { 

} 

1359.	 Specifically, Mr. Tatman’s presentation slides illustrate the decrease in volume 

accompanied by an increase in profit due to “more discipline”: 

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(CX 0622 at 003, 005) (profitability was up even though volume was down, attributed to 

“More Discipline”)). 

7.7.3 

1360. 

1361. {

 (McCutcheon, Tr. 2497, in camera; CX 1872 at 001, in camera). 

Star’s Fittings Prices and Financial Performance Improved 

Star’s Fittings pricing increased and its financial performance improved as a result of the 

conspiracy. (Infra ¶¶ 1361-1369). 

203 
1362. {

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1363. 

0042, in camera). 

{ 

(McCutcheon, Tr. 2500-2501, in camera; CX 

1364. 

at 003, in camera). 

{

} (McCutcheon, Tr. 2501-2502, in camera; CX 0528 

(McCutcheon, Tr. 2653, in camera; CX 2470 

at 002, in camera). 

1365. {

 (McCutcheon, Tr. 2653, in camera; CX 2470 at 002, in 

camera). 

1366. {

 (McCutcheon, 

Tr. 2656, in camera; CX 2470 at 004, in camera). 

1367. {

 (McCutcheon, Tr. 2656-2657, 

in camera; CX 2470 at 004, in camera). 

1368. {

 (McCutcheon, Tr. 2656-2658, 

in camera; CX 2470 at 004, in camera). 

1369. { 

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 (McCutcheon, Tr. 2657-2658, in camera; CX 2470 at 004, in camera). 

7.7.4 Sigma’s Fittings Prices and Financial Performance Improved 

1370.	 Star’s Fittings pricing increased and its financial performance improved as a result of the 

conspiracy. (Infra ¶¶ 1371-1383). 

1371.	 Sigma’s average selling price (per metric ton) for Fittings rose 21% from 2007 into 2008, 

from $2,675 for 2007 to $3,236 for 2008 through July. By December 2008 the year-todate price had fallen approximately 3% from its height in July 2008 to $3,144 per metric 

ton. (CX 0974 at 003, 009 (detailed analysis of pricing trends prepared by Mr. 

Bhattacharji in January of 2009 for an outside appraiser hired by Sigma’s lenders); Pais, 

Tr. 2006-2008; see also Pais, Tr. 2122-2123 (bank appraiser used CX 0974 in making an 

assessment of Sigma’s orderly liquidation value)). 

1372. Until mid-to-late August 2008, Sigma’s sales were tracking ahead of the same period for 

2007. (CX 2531 (Rybacki, Dep. at 157-158)). Sigma had approximately $8.8 million in 

Fittings sales in July 2007, and approximately $9.2 million in Fittings sales in July 2008. 

(CX 0974 at 009; Pais, Tr. 2010). 

1373. {

 (Rybacki, Tr. 3599-3601, in camera; CX 1002 at 004, in camera). 

1374. {

 (Rybacki, Tr. 3652, 3737, in 

camera; CX 1002 at 004, in camera). 

1375. {

 (CX 1002 at 004, in camera; Rybacki, Tr. 3601, in camera). 

1376. {

 (CX 

1377. 

(CX 1002 at 004, in camera; 

Rybacki, Tr. 3602, in camera). 

1378. {

 (CX 1002 at 004, in camera; Rybacki, Tr. 3738, in 

camera). 

1002 at 004, in camera; Rybacki, Tr. 3737, in camera). 

{

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1379.	 {

 (CX 1002 at 004, in camera; Rybacki, Tr. 3602-3603, in camera). 

1380.	 {

004, in camera; Rybacki, Tr. 3739, in camera). 

1381. { 

camera). 

1382. {

 (Rybacki, Tr. 3735-3737, in camera). 

1383. {

 (CX 1002 at 

} (Rybacki, Tr. 3734, in 

(Rybacki, Tr. 3739-3741, in camera). 

7.7.5	 Star’s “Special Project Pricing Reports” and Star’s “RX-557.xls 

Pinks-final” Are Not Probative of a Failure on Star’s Part to Curtail 

Project Pricing in 2008 

1384.	 Star’s Special Project Pricing Reports and its Project Pricing spreadsheet entitled “RX557.xls Pinks-final” are not probative of a failure on Star’s part to curtail Project Pricing 

during the conspiracy in 2008. (Infra ¶¶ 1385-1393). 

1385.	 Star’s approval process for Project Pricing (which it often refers to as “special pricing”) 

has varied over the years. (McCutcheon, Tr. 2272). 

1386.	 In 2007 and 2008, Star had an internal process in place for approving Project Pricing 

charged for Fittings or other products. Generally, Star sales staff and the Distributor 

tentatively negotiated a multiplier different than the Star’s published multiplier, (CX 

2535 (Bhutada, Dep. at 103-106)), and submitted the proposed multiplier to Star’s 

management for approval. (McCutcheon, Tr. 2272; Minamyer, Tr. 3144-3145). 

1387.	 While Mr. Minamyer was the national sales manager, Mr. Minamyer or Mr. McCutcheon 

approved Project Pricing, except to the extent that they delegated that authority to their 

division managers. (Minamyer, Tr. 3147). 

1388.	 If approved, Star and the Distributor calculated the price Star charged for the product by 

multiplying the catalog price times the negotiated (Project Price) multiplier rather than 

Star’s published multiplier. (Minamyer, Tr. 3143 (“Q. And when you negotiated that 

project with them, what were the terms that you were negotiating?” A. “Multiplier -- 

usually it was multiplier, was the big one, because a lot of the other terms of our deals 

were already set up, things like payment terms and rebates and that kind of stuff.”); 

Minamyer, Tr. 3144 (“Q. Now, the multiplier that you would negotiate for a particular 

job, would that be different than the published multiplier? A. Yes. Q. And did you refer 

to that as a project price or a special price? A. Yes, sir.”)). 

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1389.	 To obtain approval of a proposed Project Pricing multiplier, the Star sales person had to 

submit a form requesting approval to a supervisor. If the supervisor approved the form, 

Mr. Minamyer would then receive the request for approval. (McCutcheon, Tr. 2273; 

Minamyer, Tr. 3145). 

1390.	 Generally, Star’s employees referred to this form as a “Special Pricing Request” (“SPR”), 

or a “Pink,” reflecting the color of the paper on which an SPR was submitted. 

(McCutcheon, Tr. 2273; CX 2539 (McCutcheon, Dep. 23); Minamyer, Tr. 3191 (A 

“pink” is a document that Star used to set up and track Project Pricing for its customers)). 

Star’s term “special pricing request,” or “pink,” refers to all special pricing requests 

regardless of whether Star ultimately approves those requests. (McCutcheon, Tr. 2690­

2691). 

1391.	 Star periodically issued a “Special Project Pricing Report” (“SPPR”) that listed all 

pending bids for which a special price for its products had been approved. CX 2532 

(Berry, Dep. at 37-39) (Special Project Pricing Reports were issued by Star periodically, 

and included those open projects for which Star had submitted bids at prices that differed 

from the published multiplier)). 

1392.	 The SPPRs included a cover memo and an attached Excel spreadsheet. (E.g., RX-444, 

RX-444.xls (utility spreadsheet, December 2008); RX-548, RX-548.xls (utility 

spreadsheet, November 2008); RX-446, RX-446.xls (utility spreadsheet, September 

2008); RX-448, RX-448.xls (utility spreadsheet, August 2008); RX-449, RX-449.xls 

(utility spreadsheet, May 2008); RX-558, RX-558.xls (utility spreadsheet, March 2008); 

see RX-695 (Leider, Dep. at 36)). 

1393.	 In the course of the FTC’s investigation, and at Mr. McCutcheon’s request, Star produced 

a spreadsheet dated July 23, 2011. Star produced the spreadsheet with a cover memo, 

(RX-557), and an attached Excel spreadsheet that was denominated “2008_Pinksfinal.xls” (“RX-557.xls Pinks-final”). This spreadsheet purportedly identifies instances 

in which Star engaged in Project Pricing in 2008. (McCutcheon, Tr. 2550-2551). Star’s 

RX-557.xls Pinks-final was based on the same data Star used to generate the Special 

Project Pricing Reports. (McCutcheon, Tr. 2673). 

7.7.5.1	 The SPPRs and RX-557.xls Pinks-final Are Internally 

Inconsistent, Contradictory, or Otherwise Unreliable Evidence 

of Whether Star Engaged in Project Pricing to Meet 

Competition in the Sale of Fittings During the Conspiracy 

1394.	 The SPPRs and RX-557.xls Pinks-final are unreliable as evidence of Star’s continued 

Project Pricing in the sale of Fittings during the conspiracy. (Infra ¶¶ 1395-1401). 

1395.	 Star’s SPPRs and Star’s RX-557.xls Pinks-final did not set forth the amount of the 

discount Star extended to a particular Distributor for a particular purchase or purchases. 

(E.g., RX-557.xls; RX-558.xls). 

1396.	 Star’s SPPRs are facially unreliable in estimating Star’s actual use of Project Pricing in 

the sale of Fittings in the United States during the conspiracy because they provide 

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inconsistent information regarding the product, location, Distributor, and the date of a 

transaction. For example, 

a.	 The Special Project Pricing Reports are unreliable because they contain contradictory 

information regarding Star’s sales. For example, RX-548.xls and RX-445-xls both 

purport to provide information regarding projects outstanding in November 2008. 

Although both spreadsheets list the projects in the same order, they identify different 

Distributors and locations for each project. Thus, in RX-548 and RX-548.xls, which 

purports to be a SPPR for November 2008, the first entry identifies a bid for “St. 

Joe’s Hospital,” which is listed as Star’s bid to HD Supply for a project in Alabama. 

In contrast, in RX-445.xls, which also purports to be the SPPR for November 2008, 

the first entry is for “St. Joe’s Hospital” and is listed as Star’s bid to Emco for a 

project in Ontario, Canada. 

b.	 The Special Project Pricing Reports are unreliable because they contain inconsistent 

information regarding the location of the Distributor in the United States, which is the 

geographic market in which the conspiracy took place. For example, Entries 15 and 

16 of RX-548.xls have two bids for the “Farmington Station” project. Entry 15 

identifies the Distributor as Wolseley in British Columbia, but Entry 16 identifies the 

Distributor as Ferguson in California. In RX-445.xls, these same projects are 

attributed to a branch of HD Supply in Utah 

c.	 The Special Project Pricing Reports are unreliable because they contain contradictory 

information regarding the date of the sale in the recorded transaction, and it is not 

possible to determine whether the sale occurred during the conspiracy. In Entry 15 of 

RX-548.xls for the Farmington Station project, the expiration date is listed as 

12/31/07 in Column B, but the expiration date is listed as 12/31/08 in Column H. 

d.	 The Special Project Pricing Reports are unreliable because they contain information 

regarding projects that is internally inconsistent. For example, Entry 290 in RX548.xls is a project for the City of Quebec, but is listed as being in Oregon. 

1397.	 Star’s SPPRs are facially unreliable in estimating Star’s actual use of Project Pricing in 

the sale of Fittings during the conspiracy because they list the same project multiple 

times. For example, Star’s bid for a sale to HD Supply Waterworks for a project in Ohio 

is separately listed in at least six different SPPRs. (RX-558.xls, Row 28 (March 2008); 

RX-449.xls, Row 84 (May 2008); RX-448.xls, Row 153 (August 2008); RX-446.xls, 

Row 173 (September 2008); RX-445.xls, Row 222 (November 2008); RX-444.xls, Row 

244 (December 2008)). 

1398.	 Star’s SPPRs are facially unreliable in estimating Star’s actual use of Project Pricing in 

the sale of Fittings during the conspiracy because they list projects for which the bids had 

expired before the parties had implemented their conspiracy. For example, the SPPRs 

for March 2008 through December 2008 list a bid Star had submitted to Groeniger even 

though that bid had expired on February 19, 2008, before the parties had implemented 

their conspiracy. (Compare RX-558.xls, Row 72 (March report includes Groeniger bid 

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that had expired in February), with RX-444.xls, Row 288 (December report includes 

Groeniger bid that had expired in February)). 

1399.	 Star’s SPPRs and Star’s RX-557.xls Pinks-final are facially unreliable in estimating 

Star’s actual use of Project Pricing in the sale of Fittings during the conspiracy because 

they include entries to extend the expiration date for an existing discount that had been 

previously approved, rather than a new bid in which Star sought to meet competition with 

either McWane or Sigma on a bid for a particular project. (McCutcheon, Tr. 2681 (“[I]f 

we knew there was going to be a price change in mid-July, this customer service person 

may have tied it to that even to resubmit an SPR. That’s very possible.”)). 

1400.	 Star’s SPPRs and Star’s RX-557.xls Pinks-final are facially unreliable in estimating 

Star’s actual use of Project Pricing in the sale of Fittings during the conspiracy because 

they include entries to extend a discount to a new branch of a Distributor with which Star 

had previously negotiated a discount, rather than meeting competition with either 

McWane or Sigma on a bid for a particular project. (McCutcheon, Tr. 2682). 

1401.	 Mr. McCutcheon did not recognize and could not explain the basis for or reasons that 

Star extended any of discounts that are listed Star’s RX-557.xls Pinks-final under the tab 

labeled “rogue.” (McCutcheon, Tr. 2682-2683). 

7.7.5.2	 The SPPRs and Star’s RX-557.xls Pinks-final Included 

Numerous Transactions in Products Other Than Fittings and in 

Locations Outside the United States 

1402.	 The SPPRs and Star’s RX-557.xls Pinks-final included numerous transactions in products 

other than Fittings and in locations outside the United States. (Infra ¶¶ 1403-1405). 

1403.	 Star’s SPPRs include sales to Canadian customers. (McCutcheon, Tr. 2405; E.g., RX446.xls, Row 106 (sale to Howie Bird for project in New Brunswick); RX-446.xls, Row 

10 (sale to Wolseley for project in Quebec); RX-446.xls, Row 104 (sale to Marcel Baril 

for project in Quebec); RX-446.xls, Row 150 (sale to Tempispal Val Dor for project in 

Quebec); RX-446.xls, Row 56 (sale to Real Huot for project in Quebec)). 

1404.	 Star’s RX-557.xls Pinks-final includes sales to Canadian companies. (E.g., RX-557.xls, 

Row 191 (Howie Bird); RX-557.xls, Row 31 (Wolseley); RX-557.xls, Row 617 (Canada 

Pipe); RX-557.xls, Row 744 (Tempisal Val Dor); RX-557.xls, Row 634 (Real Huot)). 

1405.	 Star’s SPPRs, including RX-557.xls Pinks-final, included entries for Project Prices 

offered to Distributors that involved other products and not Fittings, such as plumbing 

products, joint restraints, bolts and accessories, castings, and valve boxes. (McCutcheon, 

Tr. 2673-2676; RX-557.xls at Row 567 (plumbing products); CX 3033 at 002 (showing 

project receiving special pricing reflected in RX-557.xls at Row 567 referred to plumbing 

products); RX-558.xls at Row 69-71 (joint restraints); RX-558.xls at Row 2-3 (bolts and 

accessories); RX-558.xls at Row 33 (castings); RX-557.xls at Row 1452 (valve boxes); 

CX 3041 at 001 (showing project receiving special pricing reflected in RX-557.xls at 

Row 1452 referred to valve boxes). 

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7.7.5.3	 The SPPRs and Star’s RX-557.xls Pinks-final Included 

Numerous Transactions That Occurred Before the Conspiracy 

Was Implemented or After It Broke Down 

1406.	 The SPPRs and Star’s RX-557.xls Pinks-final included numerous transactions that 

occurred before the conspiracy was implemented or after it broke down. (Infra ¶¶ 1407­

1409). 

1407.	 Star’s SPPRs, including RX-557.xls Pinks-final, included entries for Project Pricing that 

had a start date prior to March 1, 2008, the date when Star (and McWane) announced to 

its customers that it would no longer offer Project Pricing. (E.g., RX-558.xls, Rows 49­

558 (Star’s March 2008 SPPR); RX-557.xls, Rows 1-566 (Star’s Pinks-final)). 

1408.	 Star’s SPPRs and Star’s RX-557.xls Pinks-final include numerous instances of special 

pricing with effective dates within a month after March 1, 2008, which were likely 

approved by Star sometime before McWane, Sigma, and Star implemented their 

conspiracy to curtail Project Pricing. (E.g., RX-558.xls, Rows 7-48 (March 2008 SPPR); 

RX-557.xls, Rows 567-770). The “Start Date” for special pricing, as reflected on the 

SPPR, was as much as a month after Star’s management approved the special pricing. 

(RX-691 (Berry, Dep. at 41)). 

1409.	 Star’s SPPRs, including Star’s RX-557.xls Pinks-final, include numerous instances of 

special pricing that were approved after Mr. Minamyer had sent his November 25, 2008 

email, (CX 0831), instructing Star’s sales force to once again engage in Project Pricing. 

(E.g., RX-444.xls, Rows 1-26 (December 2008 SPPR); RX-557.xls, Rows 2430 - 2670); 

see infra ¶¶ 1456-1457 (discussing Star re-engaging in Project Pricing). 

7.7.5.4	 To the Extent the SPPRs Constitute Probative Evidence at All, 

They Show That Star Extended Fewer Project Pricing 

Discounts During the Conspiracy Period Than It Extended in 

Corresponding Periods in 2007 

1410.	 The SPPRs indicate that Star extended fewer Project Pricing discounts during the 

conspiracy period than it extended in corresponding periods in 2007. (Infra ¶¶ 1411­

1423). 

1411.	 The number of instances in which Star engaged in Project Pricing on all products (not 

just Fittings) dropped from 3,226 instances in 2007 to 2,669 in 2008. (CX 2570 at 001; 

see McCutcheon, Tr. 2685). 

1412.	 Star engaged in fewer instances of Project Pricing in 2008 than it had in 2007, even 

though there was a surge in Project Pricing in the February and March 2008 time period 

just prior to the effective date of the newly announced multiplier increases. 

(McCutcheon, Tr. 2403-2404; CX 2336 (Star price increase letter effective February 18, 

2008); CX 0752 (Minamyer email indicating that Star’s prior pricing would remain 

effective through March 1, 2008)). 

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1413.	 The decrease in Star’s Project Pricing from 2007 to 2008 occurred despite the fact that 

Star enacted multiplier increases twice during 2008 – an action that ordinarily has the 

effect of creating a spike in Project Pricing as the new prices are implemented. 

(McCutcheon, Tr. 2403-3404, 2406; see also, CX1566 (Star’s January 2009 increase 

letter to HD); CX2430 (Star’s June 2008 multiplier increase letter to customers with a 

0.30 multiplier). 

1414.	 When Star announces a price increase, whether through an increase in the list price or the 

published multiplier, there is generally a significant increase in special pricing requests 

before the new price takes effect. The requests for special pricing will then taper off soon 

after the new price takes effect. (CX 2538 (McCutcheon, IHT (Vol. 2) at 378-379) 

(“Special pricing requests . . .stay really high after the date that it’s suppose[d] to start 

and then it kind of tapers off, and it – that happens on a very regular basis.”)). 

1415.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 242 

instances in March 2007, but only 204 instances in March 2008. (CX 2570 at 001; see 

McCutcheon, Tr. 2685). 

1416.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 265 

instances in May 2007, but only 229 instances in May 2008. (CX 2570 at 001; see 

McCutcheon, Tr. 2686). 

1417.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 246 

instances in June 2007, but only 199 instances in June 2008. (CX 2570 at 001; see 

McCutcheon, Tr. 2686). 

1418.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 355 

instances in July 2007, but only 280 instances in July 2008. (CX 2570 at 001; see 

McCutcheon, Tr. 2686). 

1419.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 309 

instances in August 2007, but only 198 instances in August 2008. (CX 2570 at 001; see 

McCutcheon, Tr. 2686). 

1420.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 282 

instances in September 2007, but only 151 instances in September 2008. (CX 2570 at 

001; see McCutcheon, Tr. 2686). 

1421.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 342 

instances in October 2007, but only 194 instances in October 2008. (CX 2570 at 001; 

McCutcheon, Tr. 2686). 

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1422.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 305 

instances in November 2007, but only 159 instances in November 2008. (CX 2570 at 

001; see McCutcheon, Tr. 2686). 

1423.	 Assuming the accuracy of the SPPRs and counting all entries as if they were unique 

instances of Project Prices and related to Fittings, Star offered Project Pricing in 151 

instances in December 2007. In December 2008, after Mr. Minamyer had sent his 

November 25, 2008, email instructing his sales force that Star would once again engage 

in Project Pricing, (CX 0831), Star extended discounts in 217 instances. (CX 2570 at 

001). 

7.7.6 The Fittings Pricing Analysis of McWane’s Expert Is Flawed 

1424.	 The Fittings pricing analysis of McWane’s Expert Dr. Parker Normann is flawed and 

unreliable. (Infra ¶¶ 1425-1435). 

1425.	 Dr. Normann’s analysis of Fittings prices is flawed because it is based on meaningless 

and flawed data. (CX 2265 (Schumann Rebuttal Rep. at 3, 9-17); Schumann, Tr. 5792). 

The data do not reflect actual transaction prices or the actual prices paid by customers for 

the Fittings they purchase. (CX 2265 (Schumann Rebuttal Rep. at 10); Schumann, Tr. 

5805-5806). The data do not reflect discounts below multiplier discounts, freight charges 

paid by customers or waived by the supplier, rebates to customers, extended terms, and 

cash discounts. (CX 2265 (Schumann Rebuttal Rep. at 10-11); Schumann, Tr. 5806). 

1426.	 Dr. Normann’s analysis of Fittings prices is also flawed because of known, but nonsystematic lags between agreement on price terms and actual shipment and invoicing. 

(CX 2265 (Schumann Rebuttal Rep. at 5); Schumann, Tr. 5802-5805). Such lags 

between the time that prices are negotiated and the actual shipment date undermine any 

effort to associate an invoiced price with an event such as a change in list prices or 

multipliers or communication among parties. (CX 2265 (Schumann Rebuttal Rep. at 5)). 

1427.	 Dr. Normann does not control for customer mix issues in his data analyses. (CX 2265 

(Schumann Rebuttal Rep. at 11); Schumann, Tr. 5806-5807). Customers in different 

regions of the country or customers of different sizes receive different actual prices. (CX 

2265 (Schumann Rebuttal Rep. at 12); Schumann, Tr. 5807). Accordingly, changes in 

the regional locations and relative sizes of customers from month to month will alter 

average transactions prices. (CX 2265 (Schumann Rebuttal Rep. at 12)). Without 

controlling for differences in customer mix, comparing prices from month to month or 

over longer periods of time is not meaningful. (CX 2265 (Schumann Rebuttal Rep. at 

12)). 

1428.	 Dr. Normann’s analysis of fitting prices is also flawed because the data has errors. (CX 

2265 (Schumann Rebuttal Rep. at 9); Schumann Tr. 5805). One type of error occurs 

when the actual multiplier from a given transaction is larger than the list multiplier. (CX 

2265 (Schumann Rebuttal Rep. at 13); Schumann, Tr. 5814-5815). McWane’s counsel 

acknowledged these circumstances were “most likely an order entry error” because “there 

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is no commercial reason” for such a situation to exist. (CX 2552 at 001 (June 5, 2012 

email from McWane Counsel to Complaint Counsel); Schumann, Tr. 5810-5811, 5821­

5822). This error rate is measured by the fraction of transactions in which the reported 

(or implied) transaction multiplier exceeds the list multiplier. (CX 2265 (Schumann 

Rebuttal Rep. at 13)). 

1429.	 In 2008, the known error rate was 4.27 %, representing the instances of non-domestically 

produced Fittings (those marked with ND in their product code) in which the actual 

multiplier exceeded the list multiplier. (CX 2265 (Schumann Rebuttal Rep. at 13); 

Schumann, Tr. 5808-5809 (error rate a little over 4 percent)). In 2009, the known error 

rate was 10.75 %. (CX 2265 (Schumann Rebuttal Rep. at 13); Schumann, Tr. 5818 

(nearly 11 percent)). 

1430.	 In January 2008, the known error rate for non-domestically produced Fittings was 21 % 

error rate, representing the instances of non-domestically produced Fittings (those 

marked with ND in their product code) in which the actual multiplier exceeded the list 

multiplier. (CX 2265 (Schumann Rebuttal Rep. at 14-15); Schumann, Tr. 5809-5810). 

These errors create an upward bias in the January 2008 price data. (CX 2265 (Schumann 

Rebuttal Rep. at 15); Schumann, Tr. 5810. These errors impact and call into question Dr. 

Normann’s conclusion that non-domestic prices fell from January 2008 to February 2009, 

and the errors also impact his Figures 2A and 2B. (CX 2265 (Schumann Rebuttal Rep. at 

16); Schumann, Tr. 5847-5849). 

1431.	 There is no way to unambiguously identify domestically made Fittings sold at Domestic 

Fittings prices versus domestically made Fittings sold at the Open Specification prices. 

(CX 2265 (Schumann Rebuttal Rep. at 13); Schumann, Tr. 5825). Thus, there are errors 

in the classification of sales data between Domestic spec and Open Specification sales. If 

product is incorrectly classified, it introduces uncertainty and randomness in the data that 

would then require statistical hypothesis testing for analysis of the data. (Schumann, Tr. 

5825-26). 

1432.	 There are also errors in the multipliers in the data set of domestically produced Fittings. 

(CX 2265 (Schumann Rebuttal Rep. at 13-14); Schumann, Tr. 5823, 5824-5825). In 

2008, the error rate was 9.10 %, representing the percentage of the actual transaction 

multipliers for domestically produced Fittings that exceed the list multipliers for 

domestic. (CX 2265 (Schumann Rebuttal Rep. at 14): Schumann, Tr. 5824). For 2009, 

this error rate was 6.40 %. (CX 2265 (Schumann Rebuttal Rep. at 14); Schumann, Tr. 

5824). 

1433.	 Dr. Normann’s analysis of Fittings prices does not control for the many other factors that 

directly and substantially impact price. (CX 2265 (Schumann Rebuttal Rep. at 18); 

Schumann, Tr. 5832-5834). To estimate the effect of any specific economic event on 

price, one must control for all other factors that might affect price besides the event of 

interest. (CX 2265 (Schumann Rebuttal Rep. at 18); Schumann, Tr. 5833, 5837-5838). 

Dr. Normann’s failure to control for the other factors that shift supply and demand 

curves, and thus impact prices, renders his analysis and conclusions of no value in 

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statistical analysis and hypothesis testing. (CX 2265 (Schumann Rebuttal Rep. at 3, 62); 

understanding the markets at issue. (CX 2265 (Schumann Rebuttal Rep. at 18-19); 

Schumann, Tr. 5834-5838). 

1434.	 Dr. Normann fails to follow standard and long accepted practices when performing 

Schumann, Tr. 5794-5795). He fails to report standard errors or confidence intervals of 

slopes for his hypothesis tests. (CX 2265 (Schumann Rebuttal Rep. at 25); Schumann, 

Tr. 5801-5802, 5849, 5863, 5871). Dr. Normann does not report tests for robustness of 

his data analysis. (CX 2265 (Schumann Rebuttal Rep. at 23, 29, 48); Schumann, Tr. 

5831-5832). 

1435.	 Because of the meaningless and error ridden data and because of his failure to follow 

standard econometric practices, Dr. Normann’s figures are unreliable and are not relevant 

to or useful for economic analysis. (CX 2265 (Schumann Rebuttal Rep. at 62)). 

7.8	 As Market Conditions Worsened, the Fittings Suppliers Continued to 

Monitor Each Other’s Pricing Actions, and Communicated Regarding 

Perceived “Cheating” 

1436.	 As market conditions worsened in August 2008 and thereafter, the Fittings suppliers 

continued to monitor each other’s pricing actions, complained about perceived 

“cheating,” eventually resumed Project Pricing and stopped participating in DIFRA. 

(Infra ¶¶ 1437-1490). 

1437.	 In August 2008, the housing market declined precipitously, creating additional pricing 

pressure. (Rybacki, Tr. 1105, 3578 (testifying that “[a]fter the third week of August of 

2008, I alerted my team that the demand was starting to weaken” and that is when the 

“demand for all waterworks products started to get soft”); CX 1651 at 026, in camera 

{ } (CX 2531 (Rybacki, 

Dep. at 134-135, 157-158 ((“That’s when housing had just stopped and the economy had 

taken -- in August of 2008, the market, somebody just shut the faucet off.”; “[W]e had a 

big July. I remember we had a big July and good first half of August, and that’s when it 

started to go down. It started to go down mid to late August 2008”)). 

1438.	 The softening of demand caused the Fittings market to become more competitive. 

(Rybacki, Tr. 3578-3579). 

7.8.1 The Suppliers Monitored the Marketplace for “Cheating” 

1439.	 Star continued to monitor whether its competitors were offering Project Pricing as the 

market became more competitive in August 2008. (CX 0814 (Minamyer August 25 

email to Star division managers: “I have noticed that recently we have been seeing more 

pricing pressure . . . .”); McCutcheon, Tr. 2452-2453). 

1440.	 Star had limited its Project Pricing to situations where there was proof that competitors 

were “cheating.” (CX 1694 at 001 (September 4, 2008 email (“We have seen Sigma cheat 

on larger projects in other parts of the country and have responded accordingly when we 

see something.”); Minamyer, Tr. 3221). 

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1441.	 When Star division manager Mr. Shaun Smith received reports of Project Pricing by 

McWane, he reminded his sales force on August 18, 2008: 

We need to stay on the high road, but with our relationships, we 

should be able to react when necessary. I know it sometimes 

becomes a difficult discussion, but because of how manufactures/ 

distributors/contractors have acted over the years with (I need a 

better price!) it created this spiraling price erosion that needed to 

stop. It doesn’t help that the market is soft, but let’s be as diligent 

as we can gathering the proper data needed if the other suspects are 

cheating. We will react, just need to make sure it is real. 

(CX 1695 at 001; Minamyer, Tr. 3219-3221). 

1442.	 Although Star believed that efforts to reduce Project Pricing had been successful, and that 

the results were positive, in August 2008, Mr. Minamyer asked his team to compile 

evidence of “Sigma’s Antics.” (CX 0814 (Minamyer August 25, 2008 email (“I know we 

have been very careful on special pricing and it seems to be working pretty good. But the 

competitors are starting to get weak and we can’t sit back and let them play games and 

lose our market share.”)). 

1443.	 Mr. Minamyer continued to receive reports about Sigma and McWane cheating. For 

example, on September 9, 2009, Mr. Minamyer received the following report from a Star 

sales representative: 

I know we would like to keep the market up but Tyler and Sigma keep cheating 

and costing our partners in a baddddd [sic] market where they are down 

substantially already. . . . We are going to loose [sic] market share by continuing 

the tough stance. Tyler got where they are by being staunch and arrogant. I don’t 

want to be looking back a year from now with a 2% [price] increase and 25% less 

biz. 

(CX 1697; Minamyer, Tr. 3222-3226 (“keep the market up” referred to prices, and 

“tough stance” refers to Star’s effort to not offer Project Prices)). 

1444.	 In a September 19, 2008 email to Mr. Minamyer, Star regional sales manager Ramon 

Prado referred to Sigma’s conduct as “cheating on the fitting deal.” (CX 1691 (“I think 

we are doing better since figuring out that Sigma was cheating on the fitting deal.”); 

Minamyer, Tr. 3221-3222). 

1445.	 By October 2008, Star was “catching Sigma cheating more and more.” (CX 1698 at 001 

(October 22); see also CX 1699 (October 28 weekly activity report (“As reported, we are 

seeing cheating all over from Sigma . . . .”)). 

1446.	 On October 22, 2008, Mr. Minamyer wrote that “Sigma is silently bringing markets down 

and acting as if they are being good stewards.” (CX 0827). 

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1447.	 At the end of October 2008, Mr. Minamyer asked his division managers for “the top five 

things Sigma does or has done in your division that is out of market pricing or any weird 

stuff.” (CX 0871 at 001). 

1448.	 On November 20, 2008, Mr. McCutcheon received a report from Mr. Prado of more 

Sigma cheating in Florida (selling fittings at a .25 multiplier), and responded “Too bad 

they keep doing this.” (CX 0750 at 001). 

1449.	 Sigma made sure its disciplined reduction in job pricing did not cause it to lose share. 

Sigma used the monthly DIFRA reports to ensure that it was not losing market share to 

Star and McWane. (CX 0319 at 002 (May 4, 2009 email from Mr. Pais to Sigma’s M20 

(Sigma “kept up our DIFRA membership thru 08 and had used the monthly data in an 

useful manner to keep track of both the total market size and our SMS (Sigma Market 

Share),” and as overall volume continued to decline in 2008, Sigma was “able to stay 

reassured that we were holding on to our [market share] . . . or close to it!”); see supra 

§ 7.6.3.3 (Sigma use of DIFRA Data.)) Mr. Rybacki also had numerous phone 

conversations with Mr. McCutcheon, although he does not remember what was discussed 

on those calls. (See supra § 6.4.1.2). 

1450. McWane’s sales representatives were tasked with identifying and logging instances of 

Project Pricing being offered in their territories. (Tatman, Tr. 333-334, 915-916, 919-920 

(describing competitive feedback reports as being based solely on weekly narratives from 

each of McWane’s eight to ten sales representatives); RX-598 (a competitive feedback 

report); Tatman, Tr. 931-933; 1007, 1013, in camera { 

}; RX-396.xls, in camera { }; see also supra ¶¶ 1043-1047 

(describing McWane’s initiation of market monitoring efforts in 2008)). Mr. Tatman 

used the competitive feedback log to conclude that Project Pricing, i.e., cheating, had 

died down in his Quarterly Executive Report. (See supra ¶ 1054). 

7.8.2	 The Suppliers Complained About Cheating 

1451.	 When Mr. Tatman heard about instances of other suppliers not adhering to published 

pricing, he contacted them to complain. For example, in March 2008 Mr. Tatman 

complained to Mr. Rona at Sigma about ongoing Project Pricing. (See supra ¶ 1035). 

1452.	 In another example, on August 22, 2008, Mr. Rona of Sigma forwarded Mr. Tatman’s 

complaints about Sigma’s and Star’s prices in Florida and California to Sigma’s OEM5 

email group of top managers (including Mr. Pais, Mr. Bhattacharji, Mr. Rybacki, and Mr. 

Brakefield): 

Guys, Rick [Tatman] was upset by the numbers in Florida and California based on 

what he has seen from us and Star. He said the .26 and .30 were available from us 

both without any second thought. 

(CX 1149; Rona, Tr. 1613-1618; CX 2530 (Rona, Dep. at 147, 148, 194, 197-198) (Mr. 

Tatman complained to Mr. Rona that Sigma and Star were too quick to offer to 

discounted Fittings price multipliers down to .26 and .30 in Florida and California)). (CX 

1149; Rona, Tr. 1613-1618; CX 2530 (Rona, Dep. at 147-149, 194-198) (Mr. Tatman 

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complained to Mr. Rona that Sigma and Star were too quick to offer to discounted 

Fittings price multipliers down to .26 and .30 in Florida and California)). Mr. Tatman 

testified that he has no recollection of this conversation with Mr. Rona. (CX 2484 

(Tatman, Dep. at 113) (“Q. Do you recall having any conversations about the prices 

available from Sigma or Star with Mr. Rona in August of 2008? A. Not that time frame, 

no.”); Tatman, Tr. 364 (“I do not remember the call.”)). Mr. Tatman did recall, however, 

that he and Mr. Rona discussed prices on another occasion, on which Mr. Tatman had 

taken the opportunity to complain about Project Pricing. (CX 2484 (Tatman, Dep. at 

114) (“I believe at some point in time Mitchell asked me, you know, do you think the 

marketplace will support a price increase or something, and I give my same sarcastic 

answer . . . [w]hich is . . . I don’t think the marketplace will support a price increase . . . 

when the current prices aren’t valid.”)). 

1453.	 Mr. Rybacki understood from Mr. Rona’s August 22, 2008 email that Mr. Tatman was 

upset about the Fittings multipliers that Sigma and Star were quoting in California and 

Florida. (Rybacki, Tr. 3577; CX 1149). Mr. Rybacki testified that at the time he 

“already knew that,” and that he told Mr. Rona that, “Mr. Tatman needs to look in the 

mirror because pricing from McWane was a little inconsistent as well.” (Rybacki, Tr. 

3577-3578). 

1454.	 Mr. Rona’s August 22, 2008 email does not convey any purpose for Mr. Rona’s 

conversation with Mr. Tatman other than the price communication, and Mr. Rona does 

not recall any other purpose. (CX 1149; RX-689 (Rona, Dep. at 197); Rona, Tr. 1718 

(nothing in the e-mail that suggests a legitimate business discussion between Mr. Rona 

and Mr. Tatman)). 

1455.	 In a November 24, 2008 email, Mr. Pais sent an ‘URGENT” email to Mr. Rybacki to 

“stabilize market pricing” in the Southeast where Sigma had been viewed as pulling 

prices down. This email was apparently prompted by communications from Sigma’s 

competitors complaining about Sigma’s cheating: 

With the severe contraction in market volume over the recent few 

weeks, the equally quick and sharp erosion in market pricing is an 

alarming ‘double whammy’! What’s even more disturbing is our 

two main competitors in Fittings seem to see SIGMA as ‘leading’ 

this recent price decline . . . . 

(RX-698 at 001). 

7.8.3	 The Suppliers Resumed Project Pricing 

1456.	 Star eventually decided to resume Project Pricing to quietly gain share. At 8:26 a.m. on 

November 25, 2008, after Mr. McCutcheon was informed by Mr. Prado, one of Star’s 

division managers, that he had discovered that Sigma had extended a discount to an End 

User, Mr. McCutcheon responded to Mr. Prado and Mr. Minamyer, “Nice work, now 

let’s drop some responsible, coordinated, napalm.” (CX 0829 at 001; CX 2539 

(McCutcheon, Dep. at 218-219) (“I was tired of asking Matt to do what they needed to do 

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in the southeast, and this is me jokingly lashing out, telling the guys in the southeast to 

get it in gear.”)). 

1457.	 Later in day on November 25, 2008, Mr. Minamyer told his sales team that “[w]e have all 

been extremely diligent in protecting the stability of our market pricing,” but that Star 

was losing revenues and that they should become more aggressive to recapture the lost 

share, but to do it “under the radar”: 

Please get with your teams to be sure we are all clear on the 

following plan. 

We will take every order we can after exhausting all avenues to 

document the competitors pricing . . . [W]e will no longer tolerate 

the competition being irresponsible in the market and being 

undersold as a result. The reason is that we have documented so 

much under market pricing that we have to react to protect our 

partners’ [i.e., Distributors] and our own market shares.... Do this 

quietly and selectively and as much under the radar as you can 

but, if it is necessary, be sure to do it. Go get every order!!!! 

(CX 0831 (emphasis added); Minamyer, Tr. 3226 (describing email as “asking them to 

get more aggressive on pricing to get more orders.”); see also CX 2526 (Minamyer, Dep. 

at 69-71, 72-73) (“I’m telling them to take off the gloves and looks like we lost a market 

share and my patience had run out with that and we were going to go take it back.”; “Q. 

So what are you directing your sales folks to do? You said take off the gloves; what does 

that mean? A. It means we were attempting to hold our pricing and it looks like the 

competition was not, and we’re not going to do that anymore. We’re going to go out and 

we’re going to take that business back by using pricing.”)). 

1458.	 In his November 25, 2008 email to Star’s Division Managers, Mr. Minamyer questioned 

the sincerity of Sigma’s original commitment to the suppliers’ common plan: 

We have all been extremely diligent in protecting the stability of 

our market pricing. So much so that we have earned the 

reputation at being the best at protecting the market pricing and at 

times, to the extent that some think us inflexible in that area. You 

have all done a great job and deserve credit for the effort and 

results. 

However, some of our competition has not performed as 

admirably nor are we now certain that it was ever part of their 

strategy . . . . We have many instances where we have documented 

the competition being irresponsible (Mostly Sigma) and selling 

under our multipliers in almost every market with varying 

strategies. We have lost too much revenue to tolerate it any longer. 

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(CX 0831 at 001 (emphasis added); Minamyer, Tr. 3227-3230 (discussing email, and 

noting that reference to Sigma being “irresponsible” is to Sigma selling below published 

multipliers)). 

1459.	 Mr. Minamyer instructed his sales team to re-start its aggressive Project Pricing “quietly 

and selectively and as much under the radar as you can,” in order to keep McWane and 

Sigma from realizing that Star was cheating for as long as possible. (CX 0831; 

Minamyer, Tr. 3231 (“[T]he less your competition knows what you’re actually doing, the 

better off you are.”)). 

1460.	 After having centralized Project Pricing authority in himself in January 2008, Mr. 

Minamyer gave back that authority to his division managers in February 2009, informing 

them that they would be able to approve pinks, or SPRs, within certain limits. (CX 0884; 

Minamyer, Tr. 3232-3233). 

1461.	 Mr. Minamyer’s instruction to his sales team to resume Project Pricing is inconsistent 

with the testimony of Star witnesses such as Mr. McCutcheon that Star had been actively 

engaged in Project Pricing prior to November 25, 2008. (Compare CX 2539 

(McCutcheon, Dep. at 213-214) with CX 0831). Mr. McCutcheon could not offer any 

explanation as to why Mr. Minamyer sent his November 25, 2008 email to Star’s sales 

force to again engage in project pricing, or why Mr. Minamyer told them to do so 

“quietly,” “selectively” and “under the radar.” (CX 2539 (McCutcheon, Dep. at 214)). 

1462.	 On December 17, 2008, Mr. Tatman told Mr. McCullough, Mr. Walton, and Mr. Jansen 

that “There’s some pretty aggressive pricing going on out there that we’re only 

participating in on a select basis.” (CX 0362 at 001). 

1463.	 In late 2008, Sigma’s commitment to the conspiracy weakened and instances of its 

project pricing increased. (CX 1694 at 001 (September 4, 2008, Star email noting “We 

have seen Sigma cheat on larger projects in other parts of the country and have responded 

accordingly when we see something.”); CX 0871 (Star effort to compile list of “Sigma 

antics”); CX 1697 (“Tyler and Sigma keep cheating”); CX 1454 (Sigma April, 27, 2009 

letter noting “While none of us like to see lower pricing, . . . [w]e at Sigma are just as 

much at fault as any of our competitors,” and promising to “USE FIRM NEW 

MULTIPLIERS OFF THIS PRICE LIST, TO BRING STABILITY BACK TO OUR 

BUSINESS”); CX 0651 at 001 (McWane reading April, 27, 2009 Sigma letter as 

“Admission of guilt for driving prices down and a renewed commitment [to] firm 

multipliers and stability.”)). 

1464.	 McWane was late to abandon the suppliers’ collapsing agreement on Project Pricing. In 

a February 9, 2009 email to Mr. Tatman summarizing past and present pricing actions, 

Mr. Jansen reported that McWane had “stayed firm on pricing” for the better part of 

2008, and had started to give out job pricing in a few territories in late 2008, well after 

prices had started to move. Mr. Jansen reported as follows: 

Stayed Firm on Pricing = for better part of 2008 held pricing to 

try to stabilize market pricing. 

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	 Consequence = Lost market share due to competitors playing 

pricing games and having distributors keep it quiet either on 

the front and/or backside. 

	 Customer Reaction = Customers had large scale reduction in 

inventory which is what we were getting and were relying 

more on regional distribution yards to supply jobs and support 

inventory. 

Job Pricing = Gave out pricing on jobs in few territories late 2008. 

	 Consequences = started to get some support from customers 

that wondered where we had been. Too little too late since the 

jobs were few and far between. 

	 Customer Reaction = Numbers are dropping rapidly and they 

had been long before we started to move. They know it’s ugly 

but they are in survival mode and have very little loyalty. They 

would like to work with us but need to know we will support 

them. 

(CX 1223 at 002 (emphasis in original); Tatman, Tr. 1074-1076). 

1465.	 Sometime in 2010, McWane’s local sales agents gained the authority to extend Project 

Pricing up to one percent, provided they supplied evidence that the Project Pricing was in 

response to competitor prices. (CX 2480 (Napoli, Dep. at 52-54)). 

1466.	 In May 2009, in the context of a discussion about supplying Sigma with Domestic 

Fittings, Mr. Tatman explained to Mr. Page that he had “a general trust issue based upon 

recent experience that they [Sigma] don’t seem to consistently stay within the Spirit of 

agreements.” (CX 0456 at 001 (May 2009 email from Tatman to Page, McCullough, and 

Walton)). 

7.8.4 Sigma Attempted a Further Price Increase in January 2009 

1467.	 On January 19, 2009, Sigma sent letters to its customers announcing multiplier increases. 

(E.g., CX 0878 at 002 (Sigma letter in Star’s files); CX 2451 (Sigma regional manager 

informing sales force letter would be sent evening of January 19). 

1468.	 On January 20, 2009, in response to Sigma’s price increase announcement, Mr. 

Minamyer wrote to Mr. McCutcheon and Ramon Prado: “What do you think about 

announcing and then backing off quietly like they did to us? If you all disagree it may 

take some convincing because I want to hurt them.” (CX 0878 at 001). 

1469.	 Star followed Sigma’s price announcement on January 23, 2009, announcing a multiplier 

increase effective February 9, 2009. (CX 2452 at 001, 002 (Star letter in Sigma’s files, 

with Sigma sales representative Kevin Pennington writing “SEE BELOW FOR A COPY 

OF STAR’S INCREASE LETTER. . . . LOOK’S THE SAME AS OURS . . . .”)). 

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1470.	 On January 27, 2009, Mr. Pais sent an email to Sigma’s management team describing 

plans to improve pricing and recent increase announcements made by Sigma and 

followed by Star. (CX 1002 at 001, in camera { 

. 

1471. On January 23, 2009, Mr. Page sent an email to McWane owner C. Phillip McWane, 

informing him that Sigma and Star had announced price increases in the “<10% range,” 

and that Mr. Page and Mr. McCullough had decided that McWane would not follow 

those increases based on their analysis of the DIFRA data “since we continue to lose 

market share to somebody.” (CX 2089 at 001; CX 1226 at 001 (Page January 23, 2009 

email responding to December 2008 DIFRA report that had shown a McWane loss of 

market share: “Trying to not be emotional about it. But these numbers are infuriating. We 

have serviced our customers I assume and have the product they need, we are just being 

discounted against?”)). 

1472. On January 30, 2009, Star withdrew the multiplier increases it had announced. (CX 0882 

(“All multiplier increase [sic] in the US are on hold.... Do you think we need to call or 

send a notice? I would think a retraction E-mail, maybe? We can have Sigma write 

it!”)). Sigma also ultimately withdrew its increase and followed McWane. (Infra 

¶ 1552). 

7.8.5 DIFRA Collapsed in Early 2009 

1473. DIFRA collapsed in early 2009 when first Sigma and Star, and then McWane, stopped 

submitting their sales data. (Infra ¶¶ 1474-1483). 

1474. The last DIFRA report, covering the period through December 2008, came out in January 

2009. (Pais, Tr. 2121; Brakefield, Tr. 1400 (there was no DIFRA report issued after the 

January 2009 report covering shipments through December 2008); CX 1339 at 001 

(DIFRA report e-mail dated January 20, 2009, incorporating December 2008 data)). 

1475. In February 2009, Star and Sigma stopped submitting data to the DIFRA information 

exchange. (CX 1278 at 001; CX 0319 at 001 (Pais noting that Sigma and Star had chosen 

“to withhold providing our respective monthly Sales (MT) reporting requirements”)). 

1476. On February 19, Mr. Tatman reported to Mr. Walton and Mr. McCullough that Sigma 

and Star had failed to submit their January 2009 data to DIFRA: “Two of the DIFRA 

members haven’t yet reported January data. I know one is Sigma and most likely the 

other is Star.” (CX 1278 at 001; Tatman, Tr. 571-573). 

1477. Mr. Tatman reported that “Per [Mr.] Brakefield, he suspects there may be some hard 

feelings over the [ARRA] Buy American provision.” (CX 1278 at 001; Tatman, Tr. 571­

573). 

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1478.	 In a later email, Mr. Pais explained that Mr. Rybacki had determined that Sigma would 

withdraw from DIFRA participation in February 2009 because of a perception that the 

threat to Sigma posed by the Buy American provisions in ARRA had been an initiative of 

McWane. (CX 0985 at 001; CX 0319 at 002-003). 

1479.	 Star submitted no further data to DIFRA after its January 2009 submission of data 

through December 2008. (CX 1325 at 002 (as of May 2009, SRHW had no Star data for 

January 2009 through April 2009)). 

1480.	 Upon learning that Star and Sigma had stopped submitting data, McWane too stopped 

submitting data to DIFRA. (CX 1325 at 002 (as of May 2009, SRHW had no McWane 

data for February 2009 through April 2009)). 

1481.	 U.S. Pipe, which had not participated in the conspiracy or the breakdown in trust, 

continued to submit DIFRA data after January 2009, and until at least the summer of 

2010. (CX 2232 at 001, 006 (March 4, 2010 internal U.S. Pipe email reflecting February 

2010 U.S. Pipe data for submission to DIFRA); CX 1343 (July 8, 2010 email from U.S. 

Pipe submitting Fittings data to DIFRA)). 

1482.	 With the exception of Sigma’s May 2009 attempt to revive DIFRA activity, (see infra 

§ 7.8.6), the last time that DIFRA was active as an association was with the January 2009 

reporting of data for December 2008. (Brakefield, Tr. 1228). 

1483.	 DIFRA continues to today to be a corporation in good standing with the State of 

Alabama. However, there was never another meeting of DIFRA or any effort to 

accomplish any of the stated purposes of DIFRA. (See supra ¶ 1260). 

7.8.6 Sigma Tried to Restart DIFRA in May 2009 to Restore Trust 

1484.	 In the spring of 2009, following a conflict among the suppliers over McWane’s list price 

restructuring (infra § 7.9), Sigma attempted to re-start DIFRA to restore trust and pricing 

discipline among Fittings suppliers. (Infra ¶¶ 1485-1490). 

1485.	 Sigma and Star issued multiplier increases in January 2009, which McWane did not 

follow. Instead, McWane issued a restructured price list that raised prices on small 

diameter Fittings, but lowered prices on larger Fittings, in which Sigma and Star held 

more market share. (See supra § 7.8.4; infra ¶ 1492). 

1486.	 In an effort to convince McWane to retract its new price list, Sigma tried to restart the 

DIFRA Information Exchange. Sigma tried unsuccessfully to revive DIFRA in May 

2009 to “control the damage” and “restore the badly dented competitive confidence” and 

to demonstrate that Sigma’s “efforts to commit to a new pricing discipline would 

succeed.” (CX 0319 at 003). 

1487.	 Mr. Pais communicated his intent to restart DIFRA to Mr. Page in a personal meeting on 

May 1, 2009. (CX 0214 at 005). 

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1488.	 On May 11, 2009, Mr. Brakefield submitted Sigma’s data for the first four months of 

2009 to Bree Holland at SRHW. (CX 1336 at 001). 

1489.	 Following Sigma’s May 11, 2009 submittal of late data to DIFRA, Mr. Brakefield 

worked with Wood Herren to try to set up a DIFRA annual meeting; Mr. Pais emailed 

Mr. Brakefield telling him to wait until Star submitted its data before arranging the 

meeting, and also told him that McWane needed “to endorse the validity of a meeting, 

before we galvanize others, as I am not sure of their mindset given their recent market 

moves.” (CX 2329 at 001). 

1490.	 The efforts of Messrs. Pais and Brakefield to revive the DIFRA Information Exchange 

were unsuccessful, as neither McWane nor Star submitted data again and no DIFRA 

meeting was held. (CX 1324 (June 25, 2009 Wood Herren email to Bree Holland noting 

“We have been trying to get the members to schedule an annual meeting and it has not 

been held yet. . . . hold tight for now as far as the reports go until we can get this 

organization back on course.”); see also supra § 7.8.5). 

7.9	 In the Spring of 2009, McWane Restructured Its List Prices and Exchanged 

Pricing Assurances with Star 

1491.	 In the spring of 2009, Sigma openly sought to persuade McWane, Star, and SIP not to 

follow through with McWane’s announced list price restructuring, and Star and McWane 

exchanged assurances regarding their decision to proceed with the price restructuring. 

(Infra ¶¶ 1492-1500). 

7.9.1	 McWane Announced a Price Restructuring 

1492.	 On April 13, 2009, McWane announced that it would begin using a new price list, to be 

effective May 1, 2009, that would increase prices for small diameter fittings (where 

McWane’s share was highest), and would lower prices for medium and large diameter 

Fittings (where McWane had little or no share and Sigma and Star were stronger). The 

“net effect” across all Fittings size ranges was “near zero.” (CX 0569 at 001; CX 1669; 

CX 1563; Tatman, Tr. 595, 597). 

1493.	 McWane designed its new price list to be revenue neutral across all Fittings size ranges. 

McWane restructured its price list to (1) realign its prices among different Fittings size 

ranges in order to better align McWane’s prices with its production costs; (2) squeeze 

margins and give less room for Project Pricing on larger diameter Fittings, where Star 

and Sigma had significantly larger shares; and (3) attempt to achieve greater price 

transparency. (CX 0171 at 001, 002 (goal “to promote stability and ‘reduce’ the wiggle 

room for profitable job pricing”); Tatman, Tr. 595 (restructuring was “close to being 

revenue neutral” and was aimed at “compressing” published and actual Fittings prices 

and “getting greater visibility”)). 

1494.	 The DIFRA data through December 2008 showed that McWane’s market share was 

strongest in the 3”-12” Fittings segment, and weaker in the 14-24” and over 24” 

segments. McWane’s restructured prices went up 3% to 4% in the 3-12” segment and 

down in the others. (Tatman, Tr. 594; CX 0656). 

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1495.	 Mr. Tatman’s conclusion that the overall effect (across all size ranges) of the McWane 

list price restructuring was neutral was based on McWane’s product mix, though he 

recognized that McWane’s price restructuring could have had a non-neutral impact on a 

supplier with a different mix of Fittings. (Tatman, Tr. 598-599). 

1496.	 According to a pricing strategy presentation dated April 8, 2009, Mr. Tatman had 

proposed a 4% price increase for 3-12” Fittings, an 18% decrease for 14-24” Fittings, and 

a 33% decrease 30-48” Fittings. The presentation noted that “[c]ompressing the $/lb 

range in theory makes it more difficult for Importers to heavily undercut published levels 

on larger diameter jobs,” and that “[c]ompressing Gross Margins across the product line 

might help stabilize pricing in the (3”-12”) stocking segment.” (CX 1181 at 004; see also 

CX 1563 (restructuring will “help stabilize prices” and “help us obtain more accurate 

feedback on competitive levels”)). 

1497.	 Echoing the Tatman Plan, Mr. Tatman’s April 2009 pricing strategy presentation again 

explained the behavior that McWane was seeking to encourage in its competitors and 

customers in pursuit of “Stable Markets.” Among other things, for “pure” market 

stability to occur, Mr. Tatman wrote that competitors would have to centralize their 

pricing authority, resist Project Pricing, and cut back on incentive rebates and other 

terms, while Distributors would have to stop demanding Project Pricing, focus their own 

selling efforts on relationships and service rather than price, and believe that if they “play 

by the rules” all their competitors will also. (Compare CX 1181at 007 with CX 0627 

(calling for price authority centralization and an end to Distributor price “auctions”); 

supra § 7.1 (Tatman Plan); see also CX 2477 (Jansen, Dep. at 257) (testifying that he did 

not disagree with CX 1181 at 007)). 

1498.	 The list price change as announced resulted in average Fittings list price changes as 

follows: 

(3” - 12”) fittings up 7.5% 

(14” - 24”) fittings down 16.6% 

(30” - 48”) fittings down 31.4% 

(CX 1563; Tatman, Tr. 279-280); Pais, Tr. 2011 (in the spring of 2009 McWane 

restructured its price list such that prices went up on the smaller size fittings and down 

fairly significantly on the larger size fittings)). 

1499.	 On April 22, 2009, Star announced that it would also change its price list, effective May 

19, 2009, but did not specify whether it would match McWane. (CX 2349). 

1500.	 Mr. Tatman had received the Star April 22, 2009 announcement by April 23, 2009, and 

forwarded it to Mr. Walton, noting that “[w]e assume they are following us but we should 

know for sure by the end of next week.” (CX 2349; Tatman, Tr. 598). 

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7.9.2 Sigma Opposed McWane’s Price Restructuring and Attempted to 

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Persuade McWane to Rescind or Delay Its Price Restructuring 

1501. 

1502. 

0989 at 005 (HD Supply email informing Sigma of McWane “price increase” notice and 

In April and May 2009, Sigma opposed McWane’s price restructuring and attempted to 

persuade McWane to rescind or delay the restructuring. (Infra ¶¶ 1502-1524). 

Sigma received word of McWane’s price restructuring on or about April 15, 2009. (CX 

asking whether Sigma will follow); CX 0989 at 003 (Pais April 15, 2009 email observing 

that McWane appeared to have “revamped” its price list, including a decrease in largediameter fitting list prices); Rybacki, Tr. 3581-3583). 

1503.	 Sigma analyzed the impact that McWane’s price restructuring would have on Sigma’s 

business, and determined that it would have a “fairly drastic” negative impact, resulting 

in a $4 million to $5 million annual hit to Sigma’s bottom line. (Pais, Tr. 2011-2012; CX 

0211 at 001; see also Pais, Tr. 2142 (McWane restructuring was “not at all” a good thing 

for Sigma); Pais, Tr. 2171 (Sigma price restructuring was “potentially a knockout punch” 

for a struggling Sigma); Rybacki, Tr. 3580 (April 2009 McWane Fittings list price 

revision considerably reduced large-diameter Fittings prices)). 

1504.	 {

 (Rybacki, Tr. 3647-3648, 

in camera { 

; CX 1860-A at 004, 006, in 

camera { 

} supra ¶ 784 (detailing telephone records)). 

(Rybacki, Tr. 2467-2468, in camera; CX 1621-A at 034-035, in camera; 

supra ¶¶ 785-786 (detailing telephone records)). 

1505.	 Sigma was upset about the price restructuring. Mr. Rybacki “tried to let the whole world 

know that we weren’t happy,” and discussed with Mr. McCutcheon the possibility of 

suing McWane for predatory pricing. (Rybacki, Tr. 3580-3581). 

1506.	 Sigma took affront at McWane’s price restructuring because Sigma had been trying to be 

more consistent in its pricing. (Rybacki, Tr. 3590-3591(“that’s why we took affront to 

this [McWane price list] because we were always trying to be . . . consistent in our 

pricing, in our policies.”)). 

1507.	 Sigma believed that McWane’s price cut in larger Fittings was designed to hit Sigma and 

Star in products where they performed strongly. (CX 2531 (Rybacki, Dep. at 197-198); 

CX 0985 (Pais May 4, 2009 email noting that Sigma’s cessation of DIFRA data 

submissions “seems to have precipitated the strong and drastic reaction from Tyler by 

way of the unfavorable revision of the entire Price List.”)). 

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1508.	 Sigma decided to “protest” the price restructuring and attempt to maintain the prior 

prices. (Pais, Tr. 2012; see also Rybacki, Tr. 3584-3585 (Sigma reacted “not favorably” 

to McWane’s April 2009 list price changes, and sent a letter to its customers)). 

1509.	 In an April 23, 2009 email, Mr. Pais described his plan to ask Mr. McCullough of 

McWane for help on the price list issue: 

1 meet LM 4/28 and 1 will go all out to get the MOST from this 

rare mtg. Pvt Label is just 1 part. He needs to hear our version of a 

grand strategy and 1 may layout the P2 potential to grab his 

interest and that there is an end game in helping us with the P/L 

[Price List]. 

(CX 0209 at 001 (emphasis added)). 

1510.	 Several days later, on April 26, 2009, Mr. Pais further spelled out his plan to raise the 

price list issue directly with Mr. McCullough of McWane, and to seek a “stay of 

execution” on the price restructuring, in exchange for Sigma’s agreement to implement 

pricing discipline. On April 26, Mr. Pais wrote to Mr. Bhattacharji regarding an 

upcoming April 28, 2009 meeting between Mr. Pais and Mr. McCullough: 

I have a full plate with LM . . . Pvt Label is one issue and their new 

Pricing move is even bigger! Our team was confused and was 

resigned to blindly follow the leader -- but, I felt once done, it 

would spell a PBT hit of about $4M - $5M, not only for 09 for 

even 2010 ... I asked RK2 to do a very thorough impact review and 

my fears pan out -- a little bump in S range, but a big hit in M/L 

range ... SO, thru a long and heated RM-ca1l 4/24, we decided to 

try Option 3 (#1 -- follow Tyler ... #2 -- start a rebel action for the 

4 non-dom suppliers to follow a different/ old PL) being somehow 

seek a one mth’s hold to implement our new pricing discipline --

Old PL + FIRM MULT ! You may have seen letr draft. I hv 

coached LR to blitz the G3 to support our move by NOT 

pandering/pressuring for LOWER prices etc... 

(CX 0211 at 001 (emphasis added); Pais, Tr. 2027-2034). 

1511.	 Before communicating its opposition directly, Sigma used its customer letters to deliver 

its message to McWane. (CX 0211 at 001 (“we decided to . . . seek a one mth’s hold to 

implement our new pricing discipline -- Old PL + FIRM MULT ! You may have seen letr 

draft”)). 

1512.	 On April 27, 2009, Sigma issued a letter to its customers announcing that it planned to 

continue to use the existing price list for Fittings but would use “firm” multipliers to 

bring “stability” to the market. (Pais, Tr. 2022-2023). The letter, which was an attempt 

to restore the pricing agreement the suppliers had arrived at the prior year, and to send a 

message that Sigma would control its pricing if McWane would pull back its list price 

restructuring, stated in part: 

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The problem of over supply and a cataclysmic drop in demand has 

created a market that doesn’t seem to have a bottom. While none 

of us like to see lower pricing, we’ve all had a hand in it either 

directly or indirectly, and any semblance of responsibility and 

market discipline seems to have disappeared. We at Sigma are just 

as much at fault as any of our competitors. 

In response to this turbulent patch, our industry leader has recently 

announced a highly re-structured pricing plan that you are aware 

of, with severe drops in the list prices. While we respect their 

rationale, whatever it may be, we disagree with their approach . . . 

We believe this action will hurt our industry, both in the short and 

the long term . . . 

At the same time, we also sense the need to reverse the unhealthy 

pricing spiral thru a mature, prudent and disciplined pricing 

approach. . . . 

THEREFORE, WE PLAN TO CONTINUE THE EXISTING 

PRICE LIST FOR THE FITTINGS AND ACCESSORIES . . . 

AND USE FIRM NEW MULTIPLIERS OFF THIS PRICE LIST, 

TO BRING STABILITY BACK TO OUR BUSINESS. 

. . . 

We hope you understand our sincere efforts to reverse the 

unhelpful course of the past and support our efforts to be a 

responsible supplier for now and for the future, given the 

challenging times we all face together as one industry. We also 

hope this effort will stabilize the value of your own inventories as 

well. 

(CX 1454 at 001 (emphasis in original); Pais, Tr. 2021-2024; CX 0575 at 002; CX 0651 

at 001-002). 

1513.	 Sigma’s letter of April 27, 2009 was an attempt to restore the pricing agreement the 

suppliers had arrived at the prior year, and to send a message that Sigma would control its 

pricing if McWane would pull back its list price restructuring. (See CX 1454 (noting 

Sigma’s disagreement with McWane’s restructuring, and Sigma’s own “sincere efforts to 

reverse the unhelpful course of the past” and “to be a responsible supplier for now and for 

the future”)). 

1514.	 To Sigma, the phrase “BRING STABILITY BACK TO OUR BUSINESS” in its letter 

referred to the drop in sales volume and “nosedive” in prices that had occurred in late 

2008 and early 2009. (Pais, Tr. 2023; CX 1454). Sigma was taking “a very firm stand 

that we wanted to stay with the previous price listing” and making a “renewed effort” to 

offer responsible multipliers and curtail Project Pricing. (Pais, Tr. 2023-2024 (“[W]e 

wanted to stay with. . .[a] price list that we thought was rational and we were making a 

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renewed effort to make sure that we will offer, you know, responsible multipliers and, as 

we discussed yesterday, without too much of a variation for the various jobs.”)). 

1515.	 Sigma’s April 27, 2009 customer letter was an attempt by Sigma to send a message to 

McWane, indirectly through its customers. (Rybacki, Tr. 3590; CX 1454 at 001). 

1516.	 Mr. Rybacki describes Sigma’s customer communications in response to McWane’s 

April 2009 price restructuring as expressing that “this was going to hurt us deeply and we 

did not want this to take place,” and that “[w]e also didn’t think it was good for the 

industry, not good for anybody to have prices decrease.” (Rybacki, Tr. 3587-3588 (“I 

was trying to stop it any way I could.”); Pais, Tr. 2024 (explaining April 27, 2009 letter 

as expressing a hope that the McWane price restructuring could be reversed)). 

1517.	 Mr. Pais explained the approach to the Sigma management team as being intended: 

to induce Tyler to hold off the New LP/Mult decision for now -- with our resolve 

to ‘clean up’ the marketing price slide, on our own . . . . Privately, using market 

forces and customer channels, we are hoping to influence Tyler to hold off for 

ONE month, during which we have to demonstrate our sincerity, our resolve and 

our commitment to a disciplined and responsible market pricing behavior! 

(CX 0212 at 001). Mr. Pais told his managers to ask customers to “support the Sigma 

Plan and . . . lean on Tyler to grant the ONE month reprieve for their new LP . . .” (CX 

0212 at 001; Pais, Tr. 2014). 

1518.	 Mr. Tatman received Sigma’s customer letter the day it was sent – April 27, 2009 – and 

forwarded it to Mr. McCullough and Mr. Walton. Mr. Tatman correctly interpreted 

Sigma’s message to McWane as being that Sigma would control its pricing if it pulled 

back on the new price list: 

This is an interesting read..... Admission of guilt for driving 

prices down and a renewed commitment [to] firm multipliers and 

stability. 

Note that they are going to stay with the current list price. I may 

be reading too much into Larry’s words but his message to 

Tyler/Union [McWane] may be that I’ll control my pricing and I 

want you pull back your list price restructuring????? 

The “severe drops in list prices” Larry references is on the larger 

diameter items (14” - 48”) where Sigma’s share position is much 

stronger than ours. As you know we actually raised ‘list prices’ on 

the (3”-12”) segment by over 7% 

. . . 

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Note that Star announced late last week that they would have a 

new List Price effective May 19th. It will be interesting to see what 

they do in light of Sigma’s announcement. 

(CX 0651 at 001; Tatman, Tr. 599-605). 

1519.	 On May 1, 2009, in response to Sigma’s characterization of McWane’s restructuring as 

involving “severe drops” in list prices, and in response to “a lot of chatter and false 

perceptions,” Mr. Tatman sent an email to Mr. McCullough and Mr. Walton explaining 

the rationale for the restructuring, and stating that the restructuring would “help stabilize 

prices” and “help us obtain more accurate feedback on competitive levels.” (CX 1563 

(emphasis added)). 

1520.	 As set forth in his plan (supra ¶ 1510), Mr. Pais met with Mr. McCullough near the 

airport in Des Moines, Iowa on April 28, 2009. (Pais, Tr. 2018-2019, 2025-2026; CX 

0209 at 001, 004 (Pais email regarding upcoming meeting with McCullough); CX 0728 

(email between Pais and McCullough planning meeting)). 

1521.	 On April 29, 2009, Mr. Pais sought a meeting with Mr. Page to discuss pricing. 

I need to meet you in person ASAP, to review a host of issues all 

related. So, please make some time to see me either Thursday 

evening, even if I have to trouble you for a working dinner or 

Friday morning. It’s important Ruffner -- else, I wouldn’t have 

bothered you, knowing how busy you must be these days. We 

need to have a frank and open talk -- we are at cross roads. 

(CX 0213 at 002). 

1522.	 Mr. Pais met with Mr. Page in Birmingham on May 1, 2009 at 9:00 a.m. and, among 

other things, expressed Sigma’s displeasure with McWane’s price restructuring. (CX 

2531 (Rybacki, Dep. at 199) (Mr. Rybacki believes Mr. Pais also communicated that 

“Sigma was not happy” with McWane’s restructuring directly to Mr. Page); but see Pais, 

Tr. 2035 (admitting to meeting, but denying that he discussed McWane’s restructured 

prices at the meeting); CX 0314 (Pais April 30, 2009: “I will be away on a quick visit to 

Birmingham Friday 5/1/09”); CX 0213 at 001; CX 0317 at 001 (Pais May 13, 2009 email 

describing meeting)). 

1523.	 Mr. Pais sought the meeting with Mr. Page for the purpose of making his case against 

McWane’s price restructuring. In a May 4, 2009 memo to the Sigma Board, Mr. Pais 

described the meeting as follows: 

As we also faced another major challenge from Tyler, as addressed 

below [“Major Price Restructuring”], Larry and I sought and met 

Ruffner Page, CEO of the McWane Inc last week, for a major 

review of industry trends . . . 

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(CX 0214 at 004). The phrase “another major challenge from Tyler, as addressed below” 

referred to McWane’s price restructuring. (CX 0214 at 004). 

1524.	 Although Mr. Pais did not succeed in convincing Mr. McCullough or Mr. Page to reverse 

or postpone McWane’s price restructuring, he noted afterward that the meetings had at 

least provided him the opportunity to “convey [Sigma’s] intentions to revive the DIFRA 

activity” and to communicate Sigma’s assurances regarding its “commitment to a stable 

and rewarding industry.” (CX 0214 at 007 (“Our meetings last week are likely to at least 

give them some assurance of our intentions and commitment to a stable and rewarding 

industry.”)). 

7.9.3	 Sigma Attempted to Persuade Star and SIP to Join in Resisting 

McWane’s Price Restructuring 

1525.	 In April 2009, Sigma attempted to persuade Star and SIP to resist McWane’s price 

restructuring. (Infra ¶¶ 1526-1532). 

1526.	 Mr. Pais contacted SIP and Star and proposed to them that the three companies should 

resist McWane’s changes and adhere to the old price list. (McCutcheon, Tr. 2458; CX 

2538 (McCutcheon, IHT (Vol. 2) at 224) (“SIGMA didn’t want to follow the price list 

change that McWane dropped their prices significantly and Victor [Pais] was very upset 

about it. I definitely talked to Victor about it.”); CX 2538 (McCutcheon, IHT (Vol. 2) at 

257-258 (“Victor told me that they absolutely were not going to do the price list”); see 

also CX 2539 (McCutcheon, Dep. at 227-228) (Mr. McCutcheon discussed the McWane 

price restructuring with Mr. Tatman and Mr. Rybacki); CX 2528 (Pais, Dep. at 329­

332)). 

1527.	 On April 26, 2009, Mr. Pais had also indicated that he had reached out to Star regarding 

the issue, and would continue to do so to ensure that Star “complied” with his plan. 

I will then seek [from McWane] a special ‘stay of execution’ of 1 

month... HTN promises to comply -- I am prepared to then visit 

HTN to ensure they do... You have already seen my ‘personal 

olive branch’ to RB...” 

(CX 0211 at 001 (emphasis added)). 

1528.	 The initials “HTN” in Mr. Pais’s April 26, 2009 email were a reference to Star. At trial, 

Mr. Pais testified that “HTN” in his April 26, 2009 email referred to Sigma’s regional 

manager, Al Richardson. (Pais, Tr. 2032-2033). In previous documents, however, Mr. 

Pais referred to Mr. Richardson by his initials, AR1, and referred to Star as “HTN” for its 

Houston headquarters. (Pais, Tr. 2032-2033 (Al Richardson is AR1); Pais, Tr. 1865­

1866 (“HTN” (Houston) in CX 0915 stands for Star). Mr. Pais admitted that the 

reference in the April 26, 2009 email to “RB” was to Ramesh Bhutada, Star’s president. 

Pais, Tr. 2033-2034 (“RB” is Ramesh Bhutada, Star’s President)). 

1529.	 In late April or early May 2009, Mr. Pais and Mr. McCutcheon had a telephone 

conversation before Star formally announced that it would issue a price list like that 

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1530.	 Mr. Pais told Mr. McCutcheon that he was angry about McWane’s revised price list, 

particularly because of the drop of about 40% on Fittings of 14” and greater diameter. 

Mr. Pais attempted to convince Mr. McCutcheon that that if Star were to not follow 

McWane, and instead send a letter to the market announcing that it was staying with its 

old price list on those Fittings, that Mr. Pais could possibly convince McWane to reverse 

its list price change. (McCutcheon, Tr. 2457-2458). 

issued by McWane. (CX 2539 (McCutcheon, Dep. at 229)). 

Pais that Star was following McWane’s announced price list. (CX 2539 (McCutcheon,

Mr. McCutcheon told Mr. 

Dep. at 229)). 

1531.	 Specifically, Mr. Pais told Mr. McCutcheon, 

Mr. Pais told me that he was very confident that he was going to change 

McWane’s mind. And he told me that he had -- I believe in that phone 

conversation he told me he had spoken to SIP-Serampore, and that I think he had 

insinuated he had already spoken to McWane and that he felt that they weren’t 

going to make that change. And he was encouraging me to join them to give 

strength to there not being a change in the price list to McWane. 

CX 2539 (McCutcheon, Dep. at 231)). 

1532.	 Between April 22, 2009, the date on which Star first announced that it would also change 

its price list effective May 19, 2009, (CX 2349), and May 1, 2009, the effective date of 

McWane’s new list price and the date on which Star announced its internal plan to match 

McWane’s pricing, (CX 0569 at 001; CX 0890; McCutcheon, Tr. 2464),

 (McCutcheon, Tr. 2467­

2468, in camera; CX 1621-A at 034, 035, in camera (Rybacki telephone records); supra 

¶¶ 785-786 (detailing telephone records)). 

7.9.4	 McWane Exchanged Assurances with Star Regarding Setting List 

Prices 

1533.	 In late April 2009, McWane exchanged assurances with Star regarding the two suppliers’ 

intent to implement the restructured price list. (Infra ¶¶ 1534-1553). 

1534.	 The events surrounding McWane’s price restructuring in the spring of 2009 and Sigma’s 

opposition created uncertainty among McWane and Star about each other’s intentions. 

(Infra ¶¶ 1535-1538). 

1535.	 As of April 27, 2009, Mr. Tatman did not know what Fittings price action Star might take 

in response to Sigma’s April 27, 2009 letter. (CX 0651 at 001 (Tatman, April 27, 2009: 

“Note that Star announced late last week that they would have a new List Price effective 

May 19th. It will be interesting to see what they do in light of Sigma’s announcement.”); 

Tatman, Tr. 604-605). 

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1536.	 As of April 27, 2009 when Sigma announced that it would stick to its old price list, there 

“was uncertainty about what everybody would do” regarding pricing. (CX 2485 (Walton, 

Dep. at 157)). 

1537.	 Mr. Tatman wondered whether Star would follow McWane, and in an email sent to Mr. 

Walton at 11:26 a.m. on April 28, 2009 referred to Star as “The Wild card.” (CX 1180 at 

002 (“The Wild card right now is Star . . . [T]here is now some probability that Star may 

change direction and retract their list price change.”); Tatman, Tr. 605-606 (“I did not 

know what they were doing, so I could only speculate. . . . I can only get the letters and 

read the tea leaves. . . . Don’t have any information that tells me what they’re going to 

do.”); Tatman, Tr. 607 (“Q. And so at this point in time you were uncertain as to whether 

Star would follow McWane’s new list price; correct, sir? A. That’s fairly clear from what 

I wrote.”)). 

1538.	 After his conversation with Mr. Pais, Mr. McCutcheon was uncertain as to whether 

McWane would actually follow through with its announced list price restructuring. (CX 

2539 (McCutcheon, Dep. at 235-236); McCutcheon, Tr. 2459-2460). 

1539.	 To eliminate the uncertainty, Mr. McCutcheon called Mr. Tatman to ask whether 

McWane would follow through with its announcement or stay with the old price list. 

(CX 2539 (McCutcheon, Dep. at 227-228) (“I did have a doubt in the back of my mind – 

I wanted to make sure before we moved ahead and printed all these price lists, so I called 

Rick just to make sure.”)). 

1540.	 Mr. McCutcheon described the conversation as follows: 

It cost[s] us about $25,000 to print a new price list. So, I picked up 

the phone and I called Rick Tatman. And I said, I’m only going to 

ask you one question, are you guys going to come out with a new 

price list, because I’m getting ready to approve it and spend 

$25,000 to do it. And he said, we absolutely are, and he says, I’m 

so sure that I’ll pay the $25,000 if we don’t. And I said, I 

appreciate that, nice talking to you, and hung up the phone. 

(CX 2538 (McCutcheon, IHT (Vol. 2) at 258); see also McCutcheon, Tr. 2460 (“I asked 

Mr. Tatman if they were going to continue with their price list change. And he said 

yes.”); CX 2538 (McCutcheon, IHT (Vol. 2) at 257-258); RX-698 (McCutcheon, Dep. at 

233)). 

1541.	 At his investigational hearing, Mr. McCutcheon did not suggest that Mr. Tatman’s 

response was joking or otherwise suggest that Mr. Tatman was not serious. (CX 2538 

(McCutcheon, IHT (Vol. 2) at 258)). At his deposition, however, after the lawsuit was 

filed, Mr. McCutcheon for the first time described Mr. Tatman’s response as “a laughing 

matter,” and “joking.” (RX-698 (McCutcheon, Dep. at 233)). 

1542.	 Mr. Tatman testified that he has no recollection of the telephone call with Mr. 

McCutcheon. (CX 2484 (Tatman, Dep. at 179-180); Tatman, Tr. 610). 

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1543.	 At 5:25 p.m. on the afternoon of April 28, 2009, six hours after Mr. Tatman sent the 

email in which he described Star as a “Wild card” with “some probability” of “chang[ing] 

their direction and retract[ing] their list price change,” Mr. Tatman emailed Mr. 

McCullough to report that he was “now highly confident that Star will follow our List 

Price.” (CX 1180 at 001 (emphasis added)). 

1544.	 At his deposition, Mr. Tatman testified that he had no explanation for how he became 

“highly confident” about Star’s plans. (Tatman, Tr. 610). 

1545.	 At trial, however, Mr. Tatman initially testified that he had reviewed documents since his 

deposition and that, “I know why I said it.” (Tatman, Tr. 608-609). Mr. Tatman 

explained that he had become “highly confident” about Star’s plans on April 28, 2009 

based on a telephone conversation with Glenn Fielding of HD Supply that he had seen 

referenced in an email. (Tatman, Tr. 608). 

1546.	 Upon further examination at trial, Mr. Tatman conceded that the Glenn Fielding email he 

was referencing was CX 3027, an email dated April 30, 2009, in which Mr. Tatman 

refers to a conversation “yesterday” with Mr. Fielding, i.e. April 29, 2009. (CX 3027 at 

001 (Tatman email to Jansen dated April 30, 2009: “Glenn Fielding said yesterday that 

Star was using our List.”); Tatman, Tr. 816-817). 

1547.	 Mr. Tatman then admitted that his conversation with Mr. Fielding does not explain how 

Mr. Tatman became “highly confident” about Star’s plans on April 28, 2009, the day 

before he spoke with Mr. Fielding on April 29, 2009. (CX 1180 at 001; Tatman, Tr. 816­

817). 

1548.	 On April 29, 2009, Mr. Minamyer sent an email to Star’s division managers (copying Mr. 

McCutcheon) stating that, “We are in receipt of Sigma’s price increase letter and will let 

you know shortly what our plan is.” (CX 0889; McCutcheon, Tr. 2462). 

1549.	 Star’s National Sales Manager, Mr. Minamyer, telephoned Greg Adams of McWane on 

May 1, 2009 and was also assured about McWane’s plans to move forward with the new 

list price. (CX 2352 (“Matt Minamyer just called me to ask if we went ahead with our 

list price today. I told him yes and that is all I told him made me pretty uncomfortable 

but I thought you guys should know.”)). 

1550.	 On May 1, 2009, Mr. Minamyer sent an email to Star’s division managers (copying Mr. 

McCutcheon), setting out a implementation plan for Star to match McWane’s new prices. 

(CX 0890; McCutcheon, Tr. 2464). 

1551.	 On May 4, 2009, Star followed McWane and adopted substantially identical Fittings list 

prices and multipliers. (RX-620 (letter as produced from McWane’s files) (May 4, 2011 

multiplier announcement); compare CX 2358, with CX 2359 (list prices)). 

1552.	 On May 11, 2009, the same day that Sigma submitted four months of overdue data to 

DIFRA in an attempt to “control the damage,” (CX 0319 at 003; CX 2329 at 001), Sigma 

sent letters to its customers announcing that it would adopt McWane’s restructured list 

prices and multipliers, (CX 1060 at 001, 002; Rybacki, Tr. 3591 (Sigma ultimately 

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1553. 

1554. 

1555. 

1556. 

1557. 

1558. 

adopted the McWane price list); Rybacki, Tr. 3588 (“[F]irst we tried to keep it. I know 

we were going to try to keep our old pricing and hope McWane had a change of heart, 

but when we realized that wasn’t going to happen, we ended up going along with it. The 

bottom line is we ended up going along with it.”)). 

{

 (Rybacki, Tr. 3665, in 

camera)). 

7.10	 McWane, Sigma, and Star Have Continued Their Pattern of Improper 

Pricing Communication and Coordination 

A pattern of improper pricing communications and coordination among McWane, Sigma, 

and Star continued into 2010. (Infra ¶¶ 1555-1571). 

In early 2010, Sigma raised its published Fittings multipliers to 0.27. At that time, Mr. 

Rybacki believed that if the sales force was disciplined in pricing and the published 

multiplier “stuck” and “took hold,” then there would be another increase in June. (CX 

1378; Rybacki, Tr. 3506-3509). 

On June 8, 2010, in response to a communication from Star, Sigma drafted and 

distributed a letter announcing that Sigma was raising prices on certain products and 

signaling to the marketplace that Sigma was prepared to follow a Fittings price increase. 

In an internal email discussing the price increase letter, Mr. Pais described the letter as a 

“heads up” to the customers and the market, in response to the pricing actions that had 

been “signaled” by Star: 

Since our price increase letter at this point is largely a ‘heads up’ 

to the customers and the market about our intention to follow suit 

when Star or others take a definitive action on price increases, I 

thought the attached revised letter would be more effective. As 

you can see, it captures the 2 specific actions signaled by Star 

while adding a few ‘wishful thoughts’ of our own thrown in, 

hopefully to create some momentum and traction... 

(CX 1413 at 001(emphasis added); Pais, Tr. 2036-2038; Rybacki, Tr. 3498-3499; CX 

2531 (Rybacki, Dep. at 210-213) (discussing CX 1413 and stating, “Now, it is a message 

to everybody in the waterworks industry, foes, customers, everybody, that we are going 

up and we want a price increase and we need one.”)). 

The Sigma price increase letter was sent out on June 10, 2010. (CX 2453 at 001 (email 

from Iona Shenoy transmitting final version of customer letter to sales force for 

forwarding to customers); Rybacki, Tr. 3489-3499 (discussing CX 1413 and CX 2531)). 

The final June 10, 2010 letter stated that effective July 1, 2010 the price of some 

waterworks products was increasing, but did not specify how Fittings multipliers would 

change. The final price language was identical to that proposed by Mr. Pais to deliver a 

“heads up”: 

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The following is a summary of these changes: 

1.	 The List Prices of all of our Restrained Joint Products will be 

increased by about 12%. 

2.	 The List Prices of our Protecto 401 Lined products will be 

increased by about 12%. 

3.	 The Net Prices of our Municipal Castings including Valve 

Boxes and Meter Boxes will be increased on a regional basis. 

4.	 The multipliers for Domestic and non-Domestic Restraints will 

be revised. 

5.	 The multipliers for non-Domestic Fittings will be revised. 

CX 2453 at 002 (emphasis added); compare CX 2453 at 002 with CX 1413 at 004; see 

also Rybacki, Tr. 3495-3497). 

1559.	 The Sigma price increase letter that was sent out on June 10, 2010 said only that Sigma’s 

Fittings multipliers would be “revised.” It did not indicate whether Fittings prices would 

be going up or down, or by how much. (CX 2453 at 002; Rybacki, Tr. 3496-3497). 

1560.	 At the time the Sigma price increase letter was sent out on June 10, 2010, Sigma did not 

yet know by how much it would change its Fittings prices, or which Fittings prices it 

would change. (CX 2453 at 001 (Mike Walsh June 10, 2010 cover email transmitting 

final letter: “There will be a multiplier change on fittings. I am not exactly sure what 

fittings nor what multiplier we are moving to . . . .”); Rybacki, Tr. 3496-3497). 

1561.	 Sigma’s June 10, 2010 pricing letter was intended to signal Sigma’s willingness to 

increase prices to its competitors. (Rybacki, Tr. 3498-3499 (Sigma wanted a price 

increase, and viewed sending its June 10, 2010 price increase letter as a way to express 

that desire to the market and trigger a price increase); CX 1413 (“[O]ur price increase 

letter at this point is largely a ‘heads up’ to the customers and the market about our 

intention to follow suit when Star or others take a definitive action on price 

increases . . . .”); CX 2531 (Rybacki, Dep. at 212) (“I think this was basically sending a 

message to the customer base that we’re going up, that we needed these prices increased. 

Now, it is a message to everybody in the waterworks industry, foes, customers, 

everybody, that we are going up and we want a price increase and we need one.”); CX 

2531 (Rybacki, Dep. at 216) (“Q. He says ‘Since our price increase letter at this point is 

largely a ‘heads up’ to the customers and the market,’ do you see that? A. It’s to 

everybody, everybody that’s in the market. Q. Okay, and that would include your 

competitors; right? A. Correct.”)). 

1562.	 One of the messages that Sigma intended to convey to its customers and to the market in 

its June 10, 2010 price increase letter was that if Star or somebody else took a definitive 

action on a price increase, Sigma would follow that increase: 

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Q. So just to be clear, if there was an increase by Star or McWane 

on fittings prices, what you were saying in this letter is Sigma is 

prepared to follow that increase? 

A. Yes. 

(Pais, Tr. 2036-2037). 

1563.	 Sigma intended its June 10, 2010 letter to be a message for its competitors as well as its 

customers: 

Q. And so when you said this is a heads up to the customers and 

the market, was Sigma sending a heads-up to its competitors as 

well? 

A. It’s an expression of hope that they could also if the same 

circumstances apply to them. Yes. 

(Pais, Tr. 2038). 

1564.	 By June 11, 2010, McWane had received a copy of Sigma’s “heads up” letter and noted 

that it “follows on the heals [sic] of the prior Star communication.” (CX 2438 at 001). 

1565.	 On June 16, 2010, Mr. Tatman wrote to Mr. McCullough and Mr. Jansen regarding the 

“recent communication from Star and Sigma”: 

In regards to recent communication from Star and Sigma, I believe 

our response will be to support a price increase on non domestic 

fittings, glands and accessories, but not to provide any supporting 

communication on restraints or other products. 

I believe Sigma is waiting for either a supporting communication 

from us or an announcement on specific price actions. 

At this stage we really have two approach options: 

1. Send out an “it’s coming” communication prior to any further 

announcements from either Sigma or Star and then quickly decide 

on what multipliers we want to publish and send out that 

announcement by week’s end to which most likely the others will 

follow. 

2. Send out communication supporting the need for a price 

increase, wait for Sigma or Star to publish new multipliers and 

then follow. 

(CX 2442-A at 001; see also Tatman, Tr. 319). 

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1566.	 McWane chose to follow the first option outlined in Mr. Tatman’s June 16, 2010 email, 

and announced a blended Fittings multiplier increase in 45 of 50 states on June 17, 2010, 

to be effective July 1, 2010. The McWane letter’s effective date was July 1, 2010, the 

same as the effective date suggested in Sigma’s “heads up” letter of June 10, 2010. (CX 

2440 at 001; Tatman, Tr. 320-324; CX 1384 at 002 (Sigma emails discussing McWane 

announcement)). 

1567.	 Star announced its matching increase on June 18, 2008. (CX 1406; CX 2441 at 001). 

1568.	 By June 18, 2010, Mr. Rybacki had received McWane’s June 17 price letter and Star’s 

June 18, 2010 letter matching McWane’s price increase. (CX 2450 at 002 (forwarding 

McWane pricing letter from Mr. Webb of HD Supply); CX 1406 at 001-002 (Mr. 

Schapiro forwarding a copy Star’s price increase letter); Rybacki, Tr. 3501-3503, 3499­

3501). 

1569.	 Sigma distributed its matching price increase letter on June 24, 2010. On that date, Mr. 

Rybacki signed a letter announcing Sigma’s non-Domestic Fittings multiplier increase to 

0.29, effective July 1, 2010. Mr. Rybacki forwarded this letter to his team for distribution 

to customers. (CX 1396 at 001; Rybacki, Tr. 3503-3504). 

1570.	 Upon learning of McWane’s price increase announcement, Sigma regional manager Mike 

Walsh sent an email to his sales team (copying Mr. Rybacki, Mr. McGivern, and Mr. 

Brakefield) with the subject line “price increase from Tyler?!”, in which he wrote, “if 

this is true then it is a huge victory in [the] war we have been fighting.” (CX 1378; 

Rybacki, Tr. 3509-3511). 

1571.	 Regarding the two successive Fittings price increases in 2010, and Sigma’s “success in 

getting the pricing up,” Mr. Walsh wrote: “We had a game plan. We stuck to it. It has 

worked. And now it has turned into a big victory.” (CX 1378; Rybacki, Tr. 3509-3511). 

ARRA Changed the Competitive Landscape in the Fittings Market 

1572.	 In February 2009, Congress enacted the American Recovery and Reinvestment Act of 

2009, known as “ARRA.” (Joint Stipulations of Fact (JX 0001) ¶ 19; Tatman, Tr. 610­

611 (ARRA was signed into law by the President in early 2009, and included stimulus 

funds for waterworks projects); Pais, Tr. 1732-1733; Thees, Tr. 3075). 

1573.	 ARRA allocated more than $6 billion to water infrastructure products. (Joint Stipulations 

of Fact, JX 0001 ¶ 20). 

1574.	 Waterworks projects receiving ARRA funds were required to be “under contract or 

construction within 12 months of the date of enactment of this Act.” (American 

Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (codified as 

amended in scattered sections of 6, 19, 26, 42, and 47 U.S.C. (2006 Supp. III))). 

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8.1	 ARRA Had a Buy American Requirement 

1575.	 ARRA contained certain Buy-American provisions applicable to Fittings. (Joint 

Stipulations of Fact, JX 0001 ¶ 21). 

1576.	 ARRA’s Buy-American provisions required that all ARRA-funded projects use Fittings 

(and other products) made in the United States (the “Buy American” requirement). 

(Brakefield, Tr. 1401 (“[T]he ARRA basically had several paragraphs, particularly 

paragraph 1605, that stated that the items were to be made in the United States of 

America, and that would be part of the specifications on product -- on projects that would 

be funded by ARRA.”); Sheley, Tr. 3402 (ARRA required that all products on ARRAfunded jobs be domestically certified products); Morton, Tr. 2816 (“I believe that we 

were required to provide domestic products if the customer was being funded by the 

ARRA funds.”); CX 1991 at 002 (Sigma white paper describing ARRA’s Buy American 

requirement); CX 1996 (Sigma February 11, 2009 email noting need to prepare for Buy 

American “fall out”); CX 1003 (Pais February 20, 2009 memorandum reviewing Buy 

American issue); CX 2500 (Swalley, Dep. at 61-62) (Electrosteel was not allowed to bid 

Fittings for ARRA jobs because of the Domestic-only requirement)). 

1577.	 Raw materials for a Fitting could be sourced from a foreign country so long as the Fitting 

itself was manufactured in the United States. (Pais, Tr. 1785-1786). 

8.1.1	 Sigma and Star Unsuccessfully Lobbied Against the Buy American 

Requirement 

1578.	 Sigma and Star unsuccessfully lobbied against the ARRA Buy American requirement and 

its application to Fittings. (Infra ¶¶ 1579-1582). 

1579.	 Sigma lobbied against the Buy American provision being included in ARRA. (Pais, Tr. 

1733 (“Initially, we tried to enlist some help to even stop that [Buy American provision] 

from being included in the law prior to it becoming a law.”); Pais, Tr. 1735 (“[O]vernight 

the government, you know, dealt a huge blow by diverting that business to just one 

manufacturer, and that’s what we objected to.”); CX 1994 (February 4, 2009 Bhattacharji 

email regarding a proposed customer petition opposing application of ARRA’s Buy 

American requirement to Fittings)). 

1580.	 Star lobbied on ARRA, supporting exceptions to the Buy American provisions of ARRA 

that would allow the use of fittings produced in places like Korea. (RX-694 (Bhutada, 

Dep. at 35-36)). 

1581.	 Sigma and other Fittings suppliers also lobbied for a national “single-supplier” exception 

to the Buy American requirement, which would have meant that ARRA’s Buy American 

requirement would not have applied to Fittings because McWane was the sole supplier of 

Domestic Fittings at that time. (CX 0101 at 002; CX 1991 at 002 (February 6, 2009 

Sigma White Paper arguing for an exception to ARRA’s Buy American requirement 

when there was only a single domestic supplier of the product in question); Pais, Tr. 

1435, 1738-1740 (also lobbying for NAFTA products to be included within Buy 

American requirement)). 

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1582.	 Sigma’s efforts to obtain a single-supplier waiver were unsuccessful. (Pais, Tr. 1735, 

1740). In a May 4, 2009 memorandum to the Sigma Board, Mr. Pais reported that the 

EPA had declined to provide a nationwide “sole domestic supplier” Buy-American 

waiver for Fittings, despite Sigma’s lobbying efforts. (CX 0214 at 003; see also CX 

1998 at 003 (minutes of April 14, 2009 Sigma board meeting indicating that Sigma was 

studying potential for waivers from EPA)). 

8.1.2	 Fittings Produced in Mexico or South Korea Did Not Satisfy ARRA’s 

Buy American Requirement 

1583.	 Sigma and Star could not satisfy the ARRA Buy American requirement by using Fittings 

produced in Mexico or South Korea. (Infra ¶¶ 1584-1588). 

1584.	 McWane understood that Fittings produced under NAFTA, e.g., in Mexico or Canada, 

would not qualify under the ARRA Buy American requirement, and sent out a letter to 

that effect to customers. (CX 2477 (Jansen, Dep. at 110) (testifying that he attended a 

meeting in San Diego where an EPA representative explained that NAFTA did not 

qualify for ARRA, in response to a question from Metalfit, a Mexican Fittings supplier); 

CX 1886 (April 8, 2009 McWane letter to customers stating that they “may NOT use 

Mexican or Canadian products” on certain federal contracts); CX 2498 (Teske, Dep. at 

57) (discussing CX 1886)). 

1585.	 McWane cannot identify any sale of any Mexican- or Canadian-produced Fitting for use 

in an ARRA-funded waterworks project. (Supp. Response to RFA at ¶ 6 (“McWane 

admits it has no first-hand knowledge of any sales of Imported Relevant Product 

Manufactured in Mexico or Canada for use in any ARRA Waterworks Project.”)). 

1586.	 Star looked into the possibility of whether Star could satisfy the ARRA Buy American 

requirement with Fittings produced in Mexico or Korea, but concluded in early 2009 that 

Fittings produced in Mexico or Korea would not satisfy ARRA’s Buy American 

requirement. (McCutcheon, Tr. 2277, 2279; Bhargava, Tr. 2927-2928 (before deciding 

to produce Fittings in the United States, Star determined that producing Fittings in a 

WTO country like South Korea, or a NAFTA country like Mexico, would not have 

satisfied the Domestic specification for all jobs); RX-694 (Bhutada, Dep. at 39); CX 2537 

(McCutcheon, IHT (Vol. 1) at 102-103) (Star explored the possibility of using products 

purchased from Mexico under NAFTA or from South Korea under WTO, but decided 

that neither approach was practical for it to meet the demands of the Distributors)). 

1587.	 Sigma also considered the possibility that Fittings manufactured in Korea or Mexico may 

satisfy the Buy American requirement of ARRA, but concluded that such Fittings would 

not be ARRA-compliant. (CX 0214 at 004 (Sigma Memo to Board considering possible 

WTO exemption to ARRA); CX 1998 at 003 (minutes of April 14, 2009 Sigma Board 

meeting indicating that Sigma was studying potential for NAFTA exemptions); Pais, Tr. 

1738-1739 (Fittings produced in Korea or in Mexico did not qualify as a domestic supply 

source under the Buy American provision of ARRA); CX 2528 (Pais, Dep. at 184-185) 

(noting that Mexico and Korea production options “turned out to be dead ends”); RX-153 

at 001 (concluding that NAFTA-produced Fittings would not qualify for ARRA-funded 

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waterworks projects); CX 0083 at 002 (draft memo from Mr. Bhattacharji to Sigma 

Board concluding that foreign-made Fittings could not be used for ARRA-funded 

projects)). 

1588.	 SIP also believed that NAFTA countries did not qualify as domestic supply sources under 

the Buy American provision of ARRA. (CX 2522 (Agarwal, Dep. at 91)). 

8.1.3	 There Was Insignificant Use of Waivers of the Buy American 

Requirement for Fittings Used in ARRA-Funded Waterworks 

Projects 

1589.	 The use of waivers for the Buy American provision of ARRA was insignificant and had 

no meaningful impact on the Domestic Fittings market. (Infra ¶¶ 1590-1615). 

8.1.3.1	 The EPA Had Authority to Grant Certain Waivers of the Buy 

American Requirement for ARRA-Funded Waterworks 

Projects 

1590.	 The United States Environmental Protection Agency (“EPA”) was the sole authority for 

granting or approving waivers of ARRA’s Buy American requirement for any ARRAfunded waterworks project, though the de minimis exception did not require applications 

for each job. (Supp. Response to RFA at ¶ 2) 

1591.	 In the statute itself, there are three types of waivers or exceptions to the Buy American 

requirement for ARRA-funded waterworks projects (also referred to by the EPA as 

“Regional Project Waivers” or “Regional Waivers”): public interest; insufficient and not 

reasonably available quantities; and cost. (American Recovery and Reinvestment Act of 

2009, Pub. L. No. 111-5 §1605(b), 123 Stat. 115 (codified as amended in scattered 

sections of 6, 19, 26, 42, and 47 U.S.C. (2006 Supp. III))). There is also a de minimis 

waiver as set out in separate Federal Register Notices. (RX-155 (original de minimis 

waiver); RX-195 (revised de minimis waiver)). 

1592.	 The EPA will grant a waiver if it finds that “(1) applying [the Buy American 

Requirement] would be inconsistent with the public interest; (2) iron, steel, and the 

relevant manufactured goods are not produced in the United States in sufficient and 

reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, 

and manufactured goods produced in the United States will increase the cost of the 

overall project by more than 25 percent.” (American Recovery and Reinvestment Act of 

2009, Pub. L. No. 111-5 §1605(b), 123 Stat. 115 (codified as amended in scattered 

sections of 6, 19, 26, 42, and 47 U.S.C. (2006 Supp. III))). Also, replace (Pub. L. No. 

111-5 §1605(b) and (c), 123 Stat. 115 (2009)). with (American Recovery and 

Reinvestment Act of 2009, Pub. L. No. 111-5 §1605(b) and (c), 123 Stat. 115 (codified as 

amended in scattered sections of 6, 19, 26, 42, and 47 U.S.C. (2006 Supp. III))). 

1593.	 On August 10, 2009, the EPA granted a revised de minimis waiver from the requirements 

of ARRA Section 1605(a) for any incidental components that comprise in total no more 

than 5 percent of the total cost of the materials used in and incorporated into a project. 

(RX-195). Those using this waiver did not have to apply for the waiver and be granted 

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such a waiver, but they were required to retain documentation as to these incidental items 

in their project files, and to “summarize in reports to the State the types and/or categories 

of items to which this waiver is applied, the total cost of incidental components covered 

by the waiver for each type or category, and the calculations by which they determined 

the total cost of materials used in and incorporated into the project.” (RX-195). The 

Federal Register Notice setting out the revised de minimis waiver described incidental 

goods as “‘nuts and bolts’-type components whose origins cannot readily be identified 

prior to procurement.” (RX-195 at 0002). 

1594.	 McWane informed its customers in an April 8, 2009 letter that an exception from 

ARRA’s Buy American requirements related to the cost impact of a project would only 

be available if domestic sourcing would increase the cost of an entire project (as opposed 

to the cost of a given component) by at least 25%: “[T]he exception does not apply if the 

cost of the pipe or valves for a project will be 25% greater than foreign products; rather 

the use of U.S. made pipe or valves must increase the cost of the entire project by more 

than 25%.” (CX 1886 (emphasis in original); CX 2498 (Teske, Dep. at 57) (discussing 

CX 1886)). 

1595.	 The cost waiver allowing the use of imported products if the cost of the overall project 

increased by more than 25 percent from the inclusion of domestic products could not be 

used for Fittings because “Fittings typically comprise five (5) percent or less of the total 

cost of a typical waterworks project.” (Joint Stipulations of Fact, JX 0001 ¶ 10). The 

EPA did not issue any Regional waivers for Fittings under the authority of Section 

1605(b)(3), which allows for waivers due to overall cost increases of more than 25 

percent. (Clean Water and Drinking Water State Revolving Funds: ARRA 

Implementation, http://water.epa.gov/grants_funding/eparecovery/index.cfm (listing 

waivers)). 

8.1.3.2	 The EPA Granted Only Three Public Interest Waivers During 

the Entire ARRA Period 

1596.	 The EPA granted a total of three public interest waivers of ARRA’s Buy American 

provision for Fittings, which allowed three local municipalities to purchase a total of 35 

imported Fittings for use on ARRA-funded waterworks projects. (CX 1592 (waiver for 

City of Lewiston, ME and the Auburn, Maine Water District for purchase of 33 imported 

Fittings); CX 1590 (waiver for Lowell, MA for purchase of an imported 30” diameter 

pipe tee fitting); CX 1591(waiver for Richland, WA for purchase of an imported 42” by 

24” AWWA C153 cement lined mechanical joint reducer tee fitting)). 

1597.	 McWane is unable to identify any imported Fitting that was sold for use in an ARRAfunded waterworks project under a public interest waiver other than the three identified in 

supra ¶ 1596. (Supp. Response to RFA at ¶ 3 (McWane unable to identify any other 

public interest waivers); CX 2477 (Jansen, Dep. at 112-114) (same)). 

1598.	 The limited use of the public interest waiver may have been caused by the actual or 

perceived difficulty involved in applying for waivers of ARRA’s Buy American 

requirement. (CX 2518 (Meyer, Dep. at 67) (Metalfit believed that the onerous process of 

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applying for a waiver prevented End Users from seeking waivers from the Buy American 

provision); CX 1918 at 002 CX 2486 (Burns, Dep. at 181-182) (ACIPCO believed that 

waivers of the Buy American requirement would be limited and require advanced 

publication in the Federal Register)). 

1599. { 

} 

(CX 2522 (Agarwal, Dep. at 92-93), in camera). 

8.1.3.3	 The De Minimis Waiver of the Buy American Requirement for 

ARRA-Funded Waterworks Projects Had Limited, if Any, Use 

for Fittings 

1600.	 Industry participants -- including Distributors and Suppliers -- consistently testified that 

they did not believe that the de minimis waiver of ARRA’s Buy American requirement 

applied to Fittings. (See infra ¶¶ 1601-1604). 

1601.	 For example, Mr. Thees of Ferguson testified that he did not believe that the de minimis 

waiver applied to Fittings because the waiver only applied to products where the country 

of origin for such products was not readily identifiable, such as nuts and bolts, not 

Fittings. (Thees, Tr. 3078-3080) (Fitting’s country of origin is readily identifiable 

because suppliers stamp this information on the side of the Fitting). 

1602.	 Mr. Webb of HD Supply also testified to his understanding that the EPA’s de minimis 

waiver did not apply to Fittings based on information he had gathered from End Users. 

(Webb, Tr. 2740-2742). 

1603.	 Likewise, Mr. Sheley of Illinois Meter and others also understood that ARRA’s de 

minimis waiver did not apply to Fittings. (Sheley, Tr. 3404-3405 (testifying that he 

believed that firms could use imported mechanical joint gaskets on ARRA-funded 

waterworks projects because the only suppliers of mechanical joint gaskets were in Costa 

Rica); see also CX 2510 (Groeniger, Dep. at 172) (“It was never fittings, it was bolts, 

gaskets, small things, accessories to fittings, the accessory packs for the fittings, never the 

fittings.”); CX 1885 at 001; CX 2499 (Keffer, Dep. at 89-92) (August 2009 EPA 

guidance provided that components such as Fittings “that are described in detail vie 

project specific technical specifications are not applicable to this [de minimis] waiver”)). 

1604.	 McWane also did not believe that Fittings qualified for the EPA’s de minimis waiver of 

the ARRA Buy American requirement, and sent this message to its Distributor customers. 

(CX 2477 (Jansen, Dep. at 111-112) (admitting that McWane’s sales people sent this 

message to customers); CX 1886). 

1605.	 Industry participants also consistently testified that they were unaware of any widespread 

use of the de minimis waiver for Fittings, and that they were often unaware of any 

instance in which an imported Fitting was sold for use in an ARRA-funded waterworks 

project under the de minimis waiver. (See infra ¶¶ 1606-1615). 

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1606.	 McWane did not sell any imported Fittings for use in any ARRA-funded waterworks 

projects, and cannot identify any sale of any imported Fitting that was used in an ARRAfunded Waterworks project pursuant to the de minims waiver. (Supp. Response to RFA 

at ¶ 5 (admitting that McWane possesses no first-hand knowledge of the use of an 

imported Fitting in an ARRA-funded waterworks project under a de minimis waiver)). 

1607.	 Star did not sell any imported Fittings for use in any ARRA-funded waterworks projects 

under either a public interest waiver or a de minimis waiver. (CX 2535 (Bhutada, Dep. at 

43-44)). 

1608.	 To the extent that Sigma’s imported Fittings were used on any ARRA-funded waterworks 

project, the quantities were few and the circumstances limited. (Pais, Tr. 1742-1744; CX 

2523 (Bhattacharji, Dep. at 222-223) (de minimis waivers on ARRA projects were “few 

and far between”)). 

1609. {

 (CX 2522 (Agarwal, Dep. at 92), in 

camera). 

1610.	 HD Supply never sold an imported Fitting to any customer for use on an ARRA-funded 

waterworks project, and its President is unaware of any instance where any Distributor 

supplied imported Fittings into an ARRA-funded waterworks project under any 

circumstances. (Webb, Tr. 2742-2744; CX 2514 (Webb, Dep. at 66-67)). 

1611.	 Mr. Thees of Ferguson does not know of any instance in which Ferguson used the de 

minimis waiver to use an imported Fitting in a domestic-only waterworks project. 

(Thees, Tr. 3081). 

1612.	 Mr. Sheley of Illinois Meter is unaware of anyone using imported Fittings as a substitute 

for Domestic Fittings on any ARRA-funded waterworks projects. (Sheley, Tr. 3405­

3406). 

1613.	 Metalfit’s Mr. Meyer is unaware of any project for which Metalfit, a Mexican 

manufacturer, provided imported Fittings for use on an ARRA-funded waterworks 

project. (CX 2518 (Meyer, Dep. at 66, 71-72, 133-134) (Metalfit was neither asked to 

provide, nor did provide, any quotes for ARRA-funded projects)). 

1614.	 As Mr. Meyer explained, because “enforcement by the EPA was -- was so thorough, 

[customers] were reluctant to use the de minimis waiver for anything but the smallest 

incidental components” and risk the substantial penalties that might attach if it were later 

determined that they improperly had used non-Domestic Fittings in an ARRA-funded 

job. (CX 2518 (Meyer, Dep. at 67, 152-153)). 

1615.	 Mr. Swalley of Electrosteel does not know of any instance in which a customer used an 

imported Fitting for an ARRA-funded waterworks project, or any instance in which a 

customer received a waiver of ARRA’s Buy American requirement for a Fittings 

purchase. (CX 2500 (Swalley, Dep. at 62-63, 159)). 

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1616.
 

1617.
 

1618. 

1619. 

1620. 

1621. 

1622. 

1623. 

8.2	 Sigma and Star Only Sold Imported Fittings, and Were Threatened by 

ARRA’s Buy American Provision 

Sigma and Star, each of which sold only imported Fittings, believed that their businesses 

were threatened by the ARRA Buy American requirement. (Infra ¶¶ 1617-1646). 

{ } (CX 1997 at 007, in 

camera (also noting that { 

8.2.1	 Fittings Suppliers Projected That the Domestic Fittings Market 

Would Grow – at the Expense of the Import Market – After ARRA 

Became Law 

After ARRA became law, Fittings suppliers projected that the Domestic Fittings market 

would grow, as some projects that would otherwise have been Open Specification would 

now be Domestic-only. (Infra ¶¶ 1619-1627). 

Prior to the passage of ARRA, Domestic-only Fittings projects comprised approximately 

15% to 20% of the overall Fittings market. (Tatman, Tr. 236 (15% to 18%); 

McCutcheon, Tr. 2279-2280 (Star estimated 15% to 20%); CX 2535 (Bhutada, Dep. at 

11), in camera (approximately { }); CX 2501 (Prescott, IHT at 41) (20% of 

customers were “a hundred percent domestic”); CX 2509 (Groeniger, IHT at 41) (“Q. Do 

you have a sense of what your split in terms of revenue for domestic and imported fittings 

was before the ARRA? A. 75/25 foreign. Q. . . . 75% foreign, 25% domestic? A. 

Yes.”); Webb, Tr. 2732 (Before ARRA, about 20% of HD Supply’s Fittings sales were of 

Domestic Fittings)). 

At the time that ARRA was signed into law, McWane believed that the Domestic Fittings 

market would expand as a result of the Buy American provisions in the Act. (Tatman, 

Tr. 613-614; CX 2479 (McCullough, Dep. at 95) (McWane anticipated that there could 

be a greater demand for Domestic Fittings after the passage of ARRA); Tatman, Tr. 629 

(Mr. Tatman expected the Domestic market to “go from a traditional domestic market to 

a lot of domestic opportunities”)). 

Mr. Tatman did not know whether the increase of Domestic-only jobs as a result of 

ARRA would be 10% or 50%, but he knew it would not be zero. (Tatman, Tr. 614; CX 

1209 at 001). 

Sigma projected that the Domestic Fittings market would grow to 25-30% of the overall 

Fittings market following ARRA. (CX 0214 at 005 (May 2009 Sigma Memorandum to 

the Board discussing ARRA’s impact on the market); Pais, Tr. 1752-1753 (25-30% was 

Pais’s “best estimate”); CX 0081 at 004 (similarly projecting Domestic Fittings market to 

grow from 10-12% of the overall Fittings market to 25-30%)). 

Sigma knew that some projects that would have been open-specification in the absence of 

ARRA would become Domestic-only. (Rona, Tr. 1458 (“a percentage of fittings 

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1624. 

1625. 

1626. 

1627. 

1628. 

1629. 

which . . . would have previously been accepted as foreign would be converted to 

required as domestic.”)). 

Sigma was concerned that ARRA’s Buy American requirement would cause its import 

business to suffer by diverting demand from imported Fittings to Domestic Fittings. 

(Pais, Tr. 1735, 1737 (noting that Sigma did not have a supply source for Domestic 

Fittings); CX 2523 (Bhattacharji, Dep. at 188-189) (viewed the Buy American market 

growing to 25-20% as “something to be concerned about in terms of future planning.”)). 

Star also believed that the market for Domestic Fittings would increase in size. Star 

based its belief on its own observed increase in Domestic-only Specifications in the 

market and on recent strong Domestic requirements in government appropriations. 

(McCutcheon, Tr. 2282-2283). 

{ 

} 

CX 2534 (Bhutada, IHT at 80-82), in camera { 

{

 (CX 2537 (McCutcheon, IHT (Vol. 1) at 92), in camera; 

McCutcheon, Tr. 2280-2281). 

8.2.2	 Fittings Suppliers Expected That Buy-American Sentiment Would 

Extend Beyond ARRA 

There was also a threat to Sigma and Star that the growth in demand for Domestic 

Fittings would outlast and extend beyond the effect of ARRA. (CX 2530 (Rona, Dep. at 

220-221); infra ¶¶ 1629-1638). 

Sigma feared that ARRA was part of a larger groundswell of Buy-American sentiment in 

the United States that would spread beyond ARRA-funded projects and outlast the 

federal bill. (Pais, Tr. 1737-1738 (“Q. Was Sigma concerned that the Buy American 

sentiment might outlast the ARRA? A. Yes.”); CX 1984 at 001 (Bhattacharji June 15, 

2009 report from AWWA conference to Sigma lobbyists and Buy America team: 

“[Distributors] see a growth in customers demanding a domestic product because of the 

law, but more important, the sentiment was in favor of buying domestic.”); CX 0231 at 

001 (Bhattacharji June 16, 2009 report from AWWA conference outlining next steps for 

Sigma Domestic Production: “[T]he sentiment in favor of domestic production is 

growing and though the BA restrictions may eventually be struck down, there could be 

domestic only specs that could stay on longer.”); Rona, Tr. 1502 (discussing CX 0231); 

CX 2523 (Bhattacharji, Dep. at 187-188) (“Q. Was it Sigma’s belief in June of 2009 that 

[Buy American] sentiment was gaining traction? A. As far as Sigma believed, it was a 

fear.”)). 

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1630.	 As Mr. Pais explained in a May, 14, 2009 internal email, “Buy American” sentiment was 

“slowly spreading and becoming a part of American life and business,” especially in the 

waterworks industry: 

As for Fittings, the current DIFRA market size of about 100,000 

ST may include about 10%-12% using the ‘DA’ [domestic spec] 

option, on the strength of the few specific markets like PA, NJ etc 

which are still ‘domestic’ . . . . [T]he ‘DA’ segment may swell to 

about 25% - 30% of the entire market due to the ARRA/BA and 

other BA [Buy American] drivers. 

(CX 0081 at 003-004). 

1631.	 Sigma anticipated that McWane would mount a campaign in some states for the adoption 

of Buy American requirements similar to those in ARRA. (CX 1996 at 001 (February 

11, 2009 email of Mr. Bhattacharji)). 

1632.	 Mr. Rona believed that Domestic-only Fittings specifications would continue for three to 

five years after ARRA. In a May 21, 2009 email, he described the impact of Buy 

American” preference but we are also seeing much more domestic 

requests and specifications that we expect will stay with our 

industry for several years if not for the next 3-5 years or even 

longer. To the customers if there is confusion about whether a job 

can be foreign or domestic they will take the easiest route and be 

forced to offer domestic. Making the wrong choice will cost [them] 

(CX 0219 at 001; Rona, Tr. 1463-1464; see also CX 2530 (Rona, Dep. at 70-71) (“I 

particular[ly] felt that post ARRA . . . there absolutely would be a carryover sentiment in 

domestic fittings that would be a level greater than the domestic percentage leading up to 

considerable problems and money loss. 

ARRA.”)). 

1633. { 

American beyond ARRA-funded projects: 

We knew that the government stimulus money would have a “buy 

(CX 1997 at 007, in camera). 

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1634.	 Star had seen a movement toward Domestic-only Specifications since ARRA because of 

the “sentiment in our country towards jobs,” and Star expected that trend to continue. 

(McCutcheon, Tr. 2282). 

1635.	 Mr. McCutcheon believes that future legislation containing Buy American requirements 

similar to ARRA’s will further cause the Fittings business to have more Domestic-only 

Specifications. (McCutcheon, Tr. 2282-2283). 

1636.	 Some municipalities that allowed import fittings prior to ARRA changed to Domestic 

Fittings requirements during the ARRA period and stayed with the Domestic Fittings 

requirement after the ARRA period ended. (CX 2489 (Morrison, IHT at 26-27)). 

1637.	 Because of ARRA and the residual demand for Domestic Fittings, there has been an 

increase in demand for Domestic Fittings. (CX 2531 (Rybacki, Dep. at 16)). In 2009, 

Sigma was concerned that ARRA would have a carry-on effect in the domestic market, 

and it did. (CX 2531 (Rybacki, Dep. at 160); see also infra ¶¶ 1647-1654 (describing 

increased post-ARRA Domestic Fittings demand)). 

1638.	 There is an ongoing concern on the part of suppliers that there could be legislation in the 

future that would also require the use of domestic fittings in projects. (CX 2535 

(Bhutada, Dep. at 39) (noting potential for future stimulus)). 

8.2.3	 Sigma and Star Were Concerned That ARRA’s Requirement for 

Domestic Fittings Would Also Result in the Loss of Non-Domestic 

Fittings Business 

1639.	 McWane’s competitors were also concerned that Distributors might shift their imported 

Fittings business to McWane because of McWane’s position in the Domestic market. 

(CX 0083 at 002 (Bhattacharji April 2009 draft memo to Board: “[W]e may lose a 

portion of the market that is not restricted to domestic simply because McWane will 

demand a larger share of the business.”); CX 1998 at 003 (minutes of April 14, 2009 

Sigma board meeting noting that “SIGMA has to be watchful that McWane is not able to 

leverage its domestic product into an unfair gain in market share”); see also CX 2522 

(Agarwal, Dep. at 94), in camera { 

1640.	 Specifically, Sigma was concerned that its inability to supply Domestic Fittings would 

negatively impact its sales of imported Fittings. If its customers were required to turn to 

McWane for Domestic Fittings for ARRA projects, they might also shift their purchases 

of imported Fittings to McWane. (Rona, Tr. 1459-1460; CX 2530 (Rona, Dep. at 119); 

see also CX 2523 (Bhattacharji, Dep. at 136-138) (Sigma feared that ARRA would cause 

it to lose sales to import jobs in addition to domestic sales)). 

1641.	 Distributors risked losing project sales if they were unable to sell Domestic Fittings 

during the ARRA period. (CX 2489 (Morrison, IHT at 35-36) (“If I was not a distributor 

for Tyler Union and they’re the only person making domestic pipe fittings and there’s a 

job that requires domestic pipe fittings, the chances of me getting an order on that project 

would be remote because the contractor’s going to give the order to somebody that can 

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supply him the proper fittings and he’s not going to be interested in buying the fittings 

from X and giving the rest of the business to Y.”); CX 2501 (Prescott, IHT at 28) 

(explaining that if domestic fittings were unavailable “we would have to go against Buy 

America”)). 

1642.	 Sigma viewed entry into the Domestic Fittings market in part as a “defensive move to 

protect our market share in the area of current sales.” (CX 1172 at 001 (March 6, 2009 

email of Mr. Bhattacharji); CX 2523 (Bhattacharji, Dep. at 135-137) (Sigma feared that 

the ARRA Buy American requirement would lock it out of ARRA jobs as well as nonARRA work)). 

1643.	 In an April 4, 2009 draft memorandum to the Sigma Board of Directors, Mr. Bhattacharji 

depicted the Buy-American provisions of ARRA as a “serious and unexpected handicap” 

to Sigma, and as threatening Sigma even in the “portion of the market that is not 

restricted to Domestic.” (CX 0083 at 002). 

1644.	 In May 2009, Mr. Rona echoed this concern regarding the threat that ARRA posed to 

Sigma’s non-Domestic Fittings business, and noted that Sigma was coming under 

pressure to find a Domestic solution: 

The total domestic requirements may only raise from the present 

maybe 10-12% to maybe 20% to 25% but even if we concede this 

volume to McWane there is likely more that will also go due to 

McWane putting pressure on the distributor to give the foreign 

business to them as well. They see this as a major chance to 

reclaim the market share they have seen slip away the last 20 

years. 

It is quite clear now that we need a credible plan to offer our 

customers, our sales people, and the industry as a whole. Many key 

industry people are asking how we plan to combat this extremely 

real threat. 

(CX 0219 at 001; Rona, Tr. 1464-1467). 

1645.	 Star also viewed Domestic entry as essential to defend against the likelihood that 

McWane would use its Domestic position to lead Distributors to deal more with McWane 

for its imported Fittings. (CX 2537 (McCutcheon, IHT (Vol. 1) at 104-105) (Star was in 

“panic mode” and thought ARRA was “the beginning of the end of Star Pipe” and would 

be a “death blow,” because McWane’s monopoly in Domestic would spill over into 

Star’s core business of imported Fittings)). 

1646.	 Sigma’s and Star’s concerns were not unfounded. On February 23, 2009, Mr. 

McCullough emailed Mr. Tatman to suggest that McWane should leverage its position in 

Domestic Fittings to increase its non-Domestic Fittings business: “We need to leverage 

our domestic position while not driving a wedge between ourselves and our customers as 

this Buy American requirement will not last forever.” (CX 1209 at 001). 

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8.3	 ARRA Increased the Number of Domestic Fittings Projects 

1647.	 ARRA increased the number of Domestic Fittings projects, both during and after the 

period in which ARRA-funded projects were being supplied. (Joint Stipulations of Fact, 

JX 0001 ¶ 22 (“The total number of waterworks projects that were built, repaired, or 

otherwise commissioned in the United States increased during the period that ARRA 

funding was available.”); infra ¶¶ 1648-1654). 

1648.	 Distributors’ sales of Domestic Fittings increased during the ARRA period. (CX 2502 

(Prescott, Dep. at 89); RX 663 (Thees, Dep. at 54-55); CX 2492 (Johnson, Dep. at 73­

75)). 

1649.	 Market participants felt the majority of the impact of ARRA and its resulting increase in 

the number of Domestic Fittings sales in 2010. (Sheley, Tr. 3402 (“Q. Are you still 

bidding on ARRA jobs today? A. No. Q. When did you see those jobs stop coming 

through? A. Mid to late 2010.”); CX 2477 (Jansen, Dep. at 104) (testifying that he did not 

see any major impact in the number of domestic jobs from ARRA during 2009); CX 

2502 (Prescott, Dep. at 90) (“Basically for 2010. There was a little hang over and a little 

1650. 

1651.	 Suppliers continued to bid on ARRA-funded jobs after February 2010. (CX 2477 

(Jansen, Dep. at 107-108)). 

start before, but I would say that . . . [for] our company the majority of that was 2010.”)). 

While ARRA-funded jobs were primarily serviced during the 2010 calendar year, they 

continued into 2011, and even as late as May 2012. (McCutcheon, Tr. 2614 (“We 

continued to ship jobs late into 2010 and [into] the first quarter of 2011 . . . And actually 

we shipped some this year.”); CX 2477 (Jansen, Dep. 107-108) (McWane still providing 

Domestic Fittings to some ARRA-funded jobs as late as May 2012); Supp. Response to 

RFA at ¶ 8 (McWane competed for sales of Domestic Fittings for use in ARRA projects 

after February 2010); CX 2500 (Swalley, Dep. at 60-61) (While ARRA expired in 

February 2010, there are still ongoing, unfinished projects that are using ARRA funds)). 

1652.
 Prior to the passage of ARRA, Domestic-only Fittings projects comprised approximately 

15% to 20% of the overall Fittings market. (Supra ¶ 1619). 

1653. {

 (CX 2535 (Bhutada, Dep. at 12, 31), in camera ( 

)). 

1654. Today, Domestic Fittings account for approximately 20% to 25% of the overall Fittings 

market. (RX-698 (McCutcheon, Dep. at 142); McCutcheon, Tr. 2282; see also CX 2535 

(Bhutada, Dep. at 12), in camera { 

; CX 2500 

(Swalley, Dep. at 67-68) (currently, approximately 25% of the demand for Fittings is 

Domestic-only); Thees, Tr. 3076 (today, after ARRA, projects continue to require 

Domestic Fittings, and approximately 35% of Ferguson’s Fittings sales are Domestic)). 

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McWane Has Monopoly Power or a Dangerous Probability of Achieving Monopoly 

Power in the Domestic Fittings Market 

1655.	 McWane has monopoly power in the Domestic Fittings market. (Schumann, Tr. 3770, 

3948; CX 2260-A (Schumann Rep. at 8, 57); infra ¶¶ 1658-1711). 

1656.	 Market power or monopoly power is the ability to raise price above marginal cost. 

Having market power implies a firm has the power to control prices or exclude 

competitors. (Schumann, Tr. 3948). 

1657.	 McWane could not have imposed its Exclusive Dealing Policy without exercising its 

monopoly power. (CX 2260-A (Schumann Rep. at 75, 78)). 

9.1 McWane Has a Dominant Market Share in the Domestic Fittings Market 

1658.	 McWane has a dominant market share in the Domestic Fittings market. (Infra ¶¶ 1659­

1663). 

1659.	 From at least 2006 and until Star entered the Domestic Fittings market in late 2009, 

McWane was the only source of Domestic Fittings. (Answer at ¶ 40 (“McWane admits, 

on information and belief, that it was the only remaining domestic manufacturer of 

[Fittings] in sizes below 30” in 2009 until Star expanded its [Fittings] product offerings 

and sales to include domestic [Fittings] in 2009”); Tatman, Tr. 1047 (describing McWane 

as the “last man” in Domestic Fittings after U.S. Pipe, Griffin and ACIPCO had exited 

the market); CX 2513 (Webb, IHT at 98) (McWane was the only manufacturer of 

Domestic Fittings during ARRA); Thees, Tr. 3078 (when ARRA was enacted, McWane 

was the only supplier of Domestic Fittings in the 3” to 24” diameter range); Sheley, Tr. 

3401-3402 (when ARRA was enacted in 2009, only McWane sold Domestic Fittings, 

with the exception of Backman Foundry in Utah, which only sold specialty “oddball” 

Fittings); Brakefield, Tr. 1408 (in evaluating entering the Domestic Fittings production 

market, Sigma concluded that “even though it was a small part of the market, it could 

become much bigger, and there would be only one source, and that would be 

Tyler/Union.”); Pais, Tr. 1733 (describing ARRA’s Buy American requirement: 

“[O]vernight the government, you know, dealt a huge blow by diverting that [Domestic 

Fittings] business to just one manufacturer [McWane]...”); McCutcheon, Tr. 2298 (to his 

knowledge, over the two years prior to Star’s entry in 2009 “there was not another 

manufacturer of 24” and down domestically manufactured pipe fittings” other than 

McWane); Morton, Tr. 2817-2818 (after U.S. Pipe closed its Chattanooga, Tennessee 

plant in April of 2006, McWane was the only producer of Domestic Fittings); Morton, 

Tr. 2823 (in April 2009, McWane was the sole supplier of Domestic Fittings 24” and 

under; ACIPCO was the sole supplier for Domestic Fittings 30” and over); CX 2223 at 

002 (same); CX 2222 at 001 (U.S. Pipe June 3, 2009 email to EPA: “There is only one 

domestic manufacturer for 4” though 24” fittings – McWane, Inc.”); CX 2523 

(Bhattacharji, Dep. at 140-142) (the ARRA domestic Buy-American requirement meant 

that Distributors were left to deal with only one Fittings supplier); CX 0551 (May 12, 

2009 email from Mr. Fielding of HD supply: “Unfortunately, since they [McWane] are 

the only domestic mfg. of fittings, they have the upper hand this time.”)). 

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(estimating that McWane’s share of the Domestic Fittings market in early 2009 was 

“around 90 percent”)). 

In 2011, McWane’s approximate share of the Domestic Fittings market was { }%; 

Star’s approximate share of the Domestic Fittings market was { }%. (CX 2260 

(Schumann Rep. at 19 tbl. 2), in camera). 

9.2 There Are High Barriers to Entry into the Supply of Domestic Fittings 

1660.	 Distributors have described McWane as “the absolute gorilla.” (CX 2501 (Prescott, IHT 

at 93) (“They are the largest by far in the industry. Their fangs are out into almost every 

business you can imagine. . . . they are the one that wrote the letter in the first place and a 

[leopard] doesn’t change its spots.”); CX 2489 (Morrison, IHT at 74) (“You know, 

they’re the 2,000-pound gorilla in the room no matter how you slice it.”)). 

1661.	 The only firms that currently manufacture a full-line of Domestic Fittings are McWane 

and Star. (Supp. Response to RFA at ¶ 10; CX 2488 (Backman, Dep. at 16) (Backman 

Foundry “survives in a niche market of custom pipe fittings. We don’t compete with 

McWane and other large fitting manufacturers for the standard off-the-shelf, the breadand-butter sort of things.”); Tatman, Tr. 238-240 (admitting that Backman foundry only 

produces a relatively small number of Domestic Fittings 24” and below); CX 2490 

(Morrison, Dep. at 66) (“Backman Foundry . . . They just make fittings, special fittings to 

order.”)). 

1662.	 In 2010, after Star had entered the Domestic Fittings market, McWane’s approximate 

share of the Domestic Fittings market was { }%. Star’s approximate share of the 

Domestic Fittings market was { }%. (CX 2260 (Schumann Rep. at 19 tbl. 2), in 

camera (basing market share calculations on supplier sales data); Tatman, Tr. 240-241 

1663. 

1664.	 Barriers to entry into the Fittings market are high. (See supra § 5.4.2). 

9.3	 Star Did Not Face the Same Entry Barriers as a De Novo Entrant 

1665.	 In seeking to enter the Domestic Market, Star did not face the most significant barriers to 

entry that would be faced by a new entrant that had never produced any Fittings or other 

waterworks products. (Infra ¶¶ 1666-1668, 1758-1765). 

1666. {

 (Bhargava, Tr. 2979-2980, in camera) { 

} 

1667.	 Star had well-established relationships with the major Distributors who would purchase 

Domestic Fittings. (McCutcheon, Tr. 2287). 

1668.	 Star’s entry into Domestic Fittings also did not require any changes to Star’s existing 

sales team, regional distribution centers, or back office support. (McCutcheon, Tr. 2287­

2288; CX 2534 (Bhutada, IHT at 55)). 

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1669.	 Star did face one significant barrier to entry into the Domestic Fittings market – 

McWane’s Exclusive Dealing Policy. Exclusionary conduct is recognized as a barrier to 

entry. (CX 2260-A (Schumann Rep. at 65) (explaining that preventing a Fittings supplier 

from the using the services of Distributors “would face an absolute, long-term ‘economic 

barrier to entry.’”)). 

1670.	 A business practice that delays an entrant’s efficient entry into a market (e.g., delays an 

entrant’s ability to achieve minimum efficient scale) creates an antitrust barrier to entry 

that may result in harm to consumers. (CX 2260-A (Schumann Rep. at 62)). Antitrust 

barriers to entry harm consumers by delaying entry that expands output, increases 

competition, and lowers prices. (CX 2260-A (Schumann Rep. at 62-63)). 

9.4 Domestic Foundries, Pipe Manufacturers, and Other Suppliers of Imported 

Fittings Are Not Potential Entrants into the Domestic Fittings Market 

1671.	 There are no potential entrants into the Domestic Fittings market. (See infra ¶¶ 1672­

1693). 

1672.	 McWane is unaware of any person that has plans to begin manufacturing Domestic 

Fittings in the next two years. (Supp. Response to RFA at ¶ 11). 

9.4.1	 Domestic Foundries Are Not Potential Entrants into the Domestic 

Fittings Market 

1673.	 Domestic foundries are not potential entrants into the Domestic Fittings market. (Infra 

¶¶ 1674-1682). 

1674.	 Frazier & Frazier, Glidewell, EBAA, and East Jordan, which are all domestic foundries 

that have produced unfinished Domestic Fittings or castings, have each testified that they 

have no plans to enter the market for selling finished Domestic Fittings. (CX 2505 

(Frazier, Dep. at 69-70); CX 2507 (Glidewell, Dep. at 127); CX 2499 (Keffer, Dep. at 13­

14); CX 2498 (Teske, Dep. at 33-34)). 

1675.	 Currently, Frazier & Frazier, Glidewell, and Mabry are each producing Domestic Fitting 

castings, or unfinished Fittings, for suppliers like Star. (CX 2505 (Frazier, Dep. at 68­

69); CX 2507 (Glidewell, Dep. at 122-123); RX-676 (Hall, Dep. at 16-20)). 

1676.	 Frazier & Frazier, Glidewell, and Mabry do not sell Domestic Fittings or Domestic 

Fittings castings to any End User. (CX 2505 (Frazier, Dep. at 68-69); CX 2507 

(Glidewell, Dep. at 122-123); CX 2517 (Hall, Dep. at 148-150)). 

1677.	 Backman Foundry “never even considered” producing large quantities of Domestic 

Fittings in response to the demand created by ARRA because of the “many million 

dollars” it would cost to “make the expansion to be able to get into the market.” (RX-648 

(Backman, Dep. at 109-110) (“I never even considered it. It wasn’t an option. Sorry, I 

didn’t mean to beat on the table.”)). 

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1678.	 While EBAA and East Jordan produce waterworks products, neither foundry currently 

produce Domestic Fitting castings. (RX-658 (Keffer, Dep. at 8-9); CX 2498 (Teske, 

Dep. at 112)). 

1679.	 To enter the manufacture of Domestic Fittings would require major equipment additions 

and an economic investment at EBAA Iron, including: molding machines; equipment for 

producing cored or hollow castings; and new furnaces. (CX 2499 (Keffer, Dep. at 13­

14)). 

1680. 

two years to realize. (CX 2499 (Keffer, Dep. at 49-51)). 

1681.	 Manufacturing Domestic Fittings at East Jordan would require an extremely expensive 

capital investment including: a major conversion of EJ’s East Jordan, Michigan melt 

facility, core-making equipment, and an investment in Domestic Fitting tooling. (CX 

2498 (Teske, Dep. at 31-34)). 

1682.	 To manufacture finished Domestic Fittings, a domestic foundry already making Domestic 

Fitting castings would have to design and develop a Domestic Fittings product line, 

invest in a Domestic Fitting sales force, identify customers, and invest in the equipment 

and expertise required to finish Domestic Fittings. (CX 2505 (Frazier, Dep. at 69-72); 

CX 2507 (Glidewell, Dep. at 125-126)). 

9.4.2	 Pipe Manufacturers Are Not Potential Entrants into the Domestic 

Fittings Market 

1683.	 Pipe manufacturers are not potential entrants into the Domestic Fittings market. (Infra 

¶¶ 1684-1688). 

1684. {

 (CX 2508 (Kuhrts, Dep. at 

19-20, 49, in camera); CX 2486 (Burns, Dep. at 70-71, 123-124); CX 2542 (Morton, 

Dep. at 56)). 

1685.	 ACIPCO has not considered re-entering the manufacture of Domestic Fittings under 24” 

in diameter, despite a 7% to 8% market price increase after ACIPCO stopped making 

1686. 

1687.	 U.S. Pipe evaluated re-entering domestic production in 2009 and chose not to re-enter 

because it was cost prohibitive. (RX-701 (Morton, Dep. at 47-49, 56-57)). 

1688. {

 (CX 2508 (Kuhrts, Dep. at 19-20, 49, in 

camera)). 

EBAA considered expanding into Domestic Fitting production three or four years ago, 

and estimated that the required expansion would cost at least $10 to $12 million, and take 

these sizes. (CX 2486 (Burns, Dep. at 36, 70-71, 123-124)). 

ACIPCO presently lacks the equipment necessary for producing Domestic Fittings of less 

than 30” in diameter. (CX 2486 (Burns, Dep. at 84)). 

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9.4.3 Other Suppliers of Imported Fittings Are Not Potential Entrants 

into the Domestic Fittings Market 

1689. Other suppliers of imported Fittings are not potential entrants into the Domestic Fittings 

market. (Infra ¶¶ 1690-1693). 

1690. Metalfit stated that it has no plans to begin manufacturing Domestic Fittings under 24” in 

diameter. (CX 2518 (Meyer, Dep. at 184-185)). 

1691. Metalfit, a Mexican Fittings producer and supplier to the US market, has indicated that 

even a 10% increase in the price of Domestic Fittings would not induce the company to 

invest in entering the Domestic Fittings market. (CX 2518 (Meyer, Dep. at 184-185)). 

1692. SIP, a supplier of imported Fittings, has no plans to enter the Domestic Fittings market 

given McWane’s Exclusive Dealing Policy. (See infra § 10.8). 

1693. {

 (CX 2500 (Swalley, Dep. at 184-185), in 

camera {

 (CX 2500 (Swalley, Dep. at 178)). 

9.5 McWane Was Able to Control Prices, Impose Unfavorable Terms on 

Customers, and Exclude Competitors in the Domestic Fittings Market 

9.5.1 McWane Charged Higher Prices and Earned Higher Margins for 

Domestic Fittings Than for Non-Domestic Fittings, and Its Pricing 

Was Not Constrained by Competitor Efforts to “Flip” Domestic 

Specifications to Open Specifications 

1694. In 2008, 2009, and 2010, McWane was able to charge higher prices, offer less 

discounting, and earn higher margins for Domestic Fittings than for otherwise identical 

non-Domestic Fittings, and its Domestic Fittings prices were not constrained by 

competitor efforts to “flip” Domestic Specifications to Open Specifications. (Infra 

¶¶ 1674-1682). 

1695. The price of a Domestic Fitting was “twice as much as an imported fitting” during the 

ARRA period, notwithstanding the functional interchangeability of imported and 

Domestic Fittings. (CX 2489 (Morrison, IHT at 45) (“As we sit here today, without 

question a domestic fitting is twice as much as an imported fitting, and that’s primarily 

because of the stimulus situation.”); see also supra §§ 4.2.1, 5.2.2). 

1696. In 2008, McWane did not typically offer Project Pricing for Domestic Fittings because 

the less competitive Domestic market did not require it. (Tatman, Tr. 334-335; CX 2199 

at 001 (McWane’s Pricing Coordinator’s email refusing a sales person’s request for 

Project Pricing for Domestic Fittings because “We are the only one who makes the full 

line of 24” and down. No need to drop the price unless Star is an issue.”); CX 2480 

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(Napoli, Dep. at 73 (stating that McWane often was not asked to offer Project Pricing for 

Domestic Fittings)). 

1698.	 Based on Electrosteel USA’s analysis regarding the production of Domestic Fittings, Mr. 

Swalley sees no cost-based reason for the price differential between Domestic Fittings 

and non-Domestic Fittings. (CX 2500 (Swalley, Dep. at 160-161)). 

1697.	 McWane was not willing to negotiate the price of Domestic Fittings after the passage of 

ARRA. (CX 2489 (Morrison, IHT at 45) (“[U]ntil the stimulus project came around, 

everything was negotiable. When the stimulus project came around the price became 

firm on the domestic fitting. There has been little if any that I’m aware of negotiation on 

what you’re going to pay for the domestic fitting and the spread widened.”); Sheley, Tr. 

3420-3421 (Illinois Meter sometimes receives Project Pricing for specific imported 

Fittings orders, but does not receive Project Pricing for Domestic Fittings); CX 2515 

(Sheley, IHT at 28) (“Well, on that import product you can negotiate prices. Domestic 

product, there’s a price and that’s what you pay.”); CX 2513 (Webb, IHT at 99-100) 

(explaining that after ARRA was passed McWane “changed and reduced” the rebate on 

domestic fittings which is “effectively” an increase in price for domestic fittings)). 

1699. {

 (Tatman, Tr. 

1042, in camera); CX 2537 (McCutcheon, IHT at 87-91) (describing the significant price 

differential between Domestic and non-Domestic prices, and the persistence of Domestic 

Only specifications – even before ARRA – despite the differential)). 

1700.	 In 2003, Buy America preference provisions applied to 10% to 20% of all ductile iron 

fittings shipments in the United States. (RXD-012 at 033 (admitted into evidence at trial, 

Tr. 4637) (U.S. International Trade Commission report on Certain Ductile Iron 

Waterworks Fittings From China, Dec. 2003; ITC’s finding based on testimony of 

McWane (the petitioner in the ITC matter, see RDX-012 at 009) and Sigma)). Prior to 

the passage of ARRA in 2009, Domestic-only Fittings projects still comprised 

approximately 15% to 20% of the overall Fittings market. (Tatman, Tr. 236 (15% to 

18%); McCutcheon, Tr. 2279-2280 (Star estimated 15% to 20%); CX 2535 (Bhutada, 

Dep. at 11), in camera { }; CX 2501 (Prescott, IHT at 41) (20% of 

customers were “a hundred percent domestic”); CX 2509 (Groeniger, IHT at 41) (“Q. Do 

you have a sense of what your split in terms of revenue for domestic and imported fittings 

was before the ARRA? A. 75/25 foreign. Q. Uh-huh, 75% foreign, 25% domestic? A. 

Yes, uh-huh.”); Webb, Tr. 2732 (Before ARRA, about 20% of HD Supply’s Fittings sales 

were of Domestic Fittings)). 

1701.	 Sigma does not try to change statutes that require the use of Domestic Fittings. (CX 2523 

(Bhattacharji, Dep. at 127-128) (Sigma has “never attempted in any concentrated fashion 

to work at state level to change the law, a Buy America law. Like in Pennsylvania, we 

have not gone to the state level to make changes. New Jersey is another state which is 

Buy America, but we haven’t gone. So all of our efforts have been in those geographical 

areas where the state doesn’t have a mandated Buy America law, and townships and 

water companies have something on a spec which doesn’t allow an imported product to 

255 
PUBLIC RECORD

be used. . . . We are businessmen, and talking to politicians and people like that is a 

waste of time.”)). 

1702.	 {

 (RX-721 at 0041, 

0043, in camera { 

RX-632 at 0027, 0029 { 

see also CX 2416 at 043, in camera { 

9.5.2	 McWane Was Able to Impose Unfavorable Terms on Distributor 

Customers 

1703.	 McWane was able to impose more onerous terms on Distributors for Domestic Fittings 

than for otherwise identical imported Fittings. (Infra ¶¶ 1704-1708). 

1704.	 In a January 28, 2010 Domestic Fittings program and policy review document, Mr. 

Tatman observed that “[w]hile most distributors understand the reasons behind the 

[Exclusive Dealing] policy, it has created negative goodwill among many of them.” (CX 

0118 at 003). 

1705.	 Under the Exclusive Dealing Policy announced by McWane on September 22, 2009, 

McWane would withhold rebates and cut off the supply of Domestic Fittings from 

Distributors who chose to buy Domestic Fittings from Star. (See infra §§ 10.3.1, 10.3.2). 

1706.	 McWane imposed its Exclusive Dealing Policy on an all-or-nothing basis against 

customers with multiple branches. (CX 0024 at 001 (“[I]f any Hajoca location chooses to 

buy another domestic fittings supplier[‘s] product Hajoca will not have direct access to 

the McWane ductile iron water main fittings for a period of time as well as loss of any 

accrued rebate to date.” (emphasis added))). Hajoca opposed this policy and asked 

McWane to modify it and have the policy apply branch by branch, but McWane refused. 

(CX 0022 at 002; Pitts, Tr. 3306-3308; see also infra § 10.4). 

1707.	 TDG was opposed to McWane’s Exclusive Dealing Policy and its terms, and thus did not 

accept McWane’s September 2009 Domestic Fittings rebate proposal. (See infra 

§ 10.5.6). TDG objected, in part, because the new policy required TDG to police its 

members’ Domestic Fittings purchases to ensure that all locations for all TDG 

Distributors purchase all of their Domestic Fittings from McWane. (Sheley, Tr. 3408­

3409; CX 2494 (R. Fairbanks, Dep. at 114) (because McWane proposal involved policing 

of individual member companies, it “[d]idn’t fit our model”)). 

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1708.	 End Users that use Open Specification also enjoy better price, quality, product range, and 

service from import manufacturers than they receive from McWane on Domestic Fittings. 

(CX 2523 (Bhattacharji, Dep. at 131-134)). 

9.5.3	 McWane Was Able to Exclude Competitors from the Domestic 

Fittings Market 

1709.	 McWane was able to exclude competitors from the Domestic Fittings market. (See infra 

¶¶ 1710-1711). 

1710.	 McWane’s Exclusive Dealing Policy had the effect of excluding Star from the Domestic 

Fittings Market. McWane’s Exclusive Dealing Policy caused Star to lose sales, 

prevented Star from investing in its Domestic business, and made Star unable to 

effectively compete with McWane in Domestic Fittings. (See infra § 10.9) 

1711.	 SIP abandoned its plans to enter the Domestic Fittings market after McWane adopted the 

Exclusive Dealing Policy. (See infra § 10.8). 

10 McWane Implemented an Exclusive Dealing Policy in the Domestic Fittings Market 

10.1	 Star Entered the Domestic Fittings Market 

1712.	 Prior to 2009, all the Fittings sold by Star were generally imported from China, Korea, 

Brazil or Venezuela. (RX-692 (Bhargava, Dep. at 9-10)). 

10.1.1 Star Announced Its Entry into the Domestic Fittings Market in June 

2009 

1713.	 At a June 2009 AWWA industry conference, Star publicly announced that it would begin 

selling Domestic Fittings in September 2009. (Joint Stipulations of Fact, JX 0001 ¶ 23; 

Brakefield, Tr. 1401-1402; CX 2533 (Bhargava, Dep. at 47-48); CX 2489 (Morrison, 

IHT at 68) (“Star surprised everyone at the convention by unveiling their new line of 

domestic fittings.”); McCutcheon. Tr. 2295-2296 (announcing entry into Domestic 

Fittings market through AWWA show announcement, handouts, email “blast[s]” to 

customer base, and its website); Tatman, Tr. 645 (noting that Star also announced its 

Domestic entry on its website)). 

1714.	 On or about June 15, 2009, Star sent a letter to customers stating, “Look for our . . . 

Fitting inventories to start arriving in September.” (CX 1674 at 002). 

1715.	 On or about June 24, 2009, Star issued letters to its customers announcing the multipliers 

for its “American Made” Domestic Fittings. (CX 2330; CX 2331; CX 2332; CX 2333). 

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10.1.2 Star Planned to Quickly Enter the Domestic Fittings Market While It 

Built Its Inventory and Sales to Become a Full-Line Supplier with Its 

Own Domestic Foundry 

1716.	 In 2009, Star planned to quickly enter the Domestic Fittings market with a partial line 

manufactured by independent foundries, and to build up the inventory and sales base 

required to become a full-line supplier with its own domestic foundry. (Infra ¶¶ 1717­

1732). 

1717.	 Star began to seriously consider entering the Domestic Fittings market after ARRA was 

enacted. (Bhargava, Tr. 2926-2928 (Star first considered Domestic entry around March 

or April of 2009, in response to ARRA’s Buy American provision and after eliminating 

Korea and Mexico as potential solutions); RX-698 (McCutcheon, Dep. at 132) (around 

April 2009); McCutcheon, Tr. 2277-2278 (2009); RX-694 (Bhutada, Dep. at 48) (March 

or April 2009); CX 2533 (Bhargava, Dep. at 11) (Star first considered producing fittings 

domestically in 2009 after the passage of ARRA, because projects funded by ARRA had 

to be made in the United States)). 

1718.	 Star believed that there would be sufficient demand in the Domestic Fittings market to 

support two suppliers. (McCutcheon, Tr. 2285). 

1719.	 Upon the enactment of ARRA, Star estimated that the demand for Domestic Fittings 

could double and that it would be foreclosed from the domestic market. (CX 2535 

(Bhutada, IHT at 31) (demand for Domestic Fittings could increase from 20% to 40% of 

total demand for fittings); see supra § 8.2 (describing threat posed by ARRA)). 

10.1.2.1 Star Decided to Initially Enter the Domestic Fittings Market by 

Contracting with Independent Domestic Foundries in Order to 

Bring Its Domestic Fittings to Market More Quickly 

1720. To bring its Domestic Fittings to market more quickly, Star initially entered the Domestic 

Fittings market by contracting with independent domestic foundries.. (Infra ¶¶ 1721­

1725). 

1721. In 2009, Star considered three alternatives for producing Domestic Fittings in the United 

States: (1) building a new foundry; (2) purchasing an existing foundry; or (3) contracting 

with existing independent foundries to manufacture castings (unfinished Domestic 

Fittings). (McCutcheon, Tr. 2284; Bhargava, Tr. 2928-2929 (“[W]e could set up our own 

foundry from ground zero[,] . . . we could buy an existing foundry . . . or we could go to 

contract manufacturing . . . .”); see also CX 2533 (Bhargava, Dep. at 19-22), in camera 

{ 

; CX 

2534 (Bhutada, Dep. at 46), in camera { 

1722.	 { 

258 
 

 

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} (Bhargava, Tr. 2930, 2990, in camera { 

; McCutcheon, Tr. 2284-2285 (also supporting initially entering Domestic 

Fittings market by contracting with third party foundries because Star was uncertain if it 

would have sufficient sales to sustain its own foundry); CX 2537 (McCutcheon, IHT 

(Vol. 1) at 109, in camera) { 

1723.	 { 

(Bhargava, Tr. 2930-2031, in camera { 

1724.	 {

 (Bhargava, Tr. 2945-2946, in camera). 

1725.	 { 

(CX 2535 (Bhutada, Dep. at 118-119), in camera); McCutcheon, Tr. 2284; Bhargava, Tr. 

2931, in camera { 

; CX 2533 (Bhargava, Dep. at 26-27), in camera). 

10.1.2.2	 Star Decided to Enter the Domestic Market by First Supplying 

the Most Common Fittings as It Built Its Inventory to Become 

a Full-Line Supplier 

1726.	 Star planned to enter the Domestic Fittings market by offering the most popular Fittings 

items first. Star developed a priority for the patterns it constructed by identifying the 

best- selling Fittings, which require approximately 150 to 200 patterns but account for 

approximately 80% of Fittings sales. (CX 2535 (Bhutada, Dep. at 52-53)). 

1727.	 Star planned to offer a relatively full line of the more commonly used C153 Domestic 

Fittings, and a more limited line of C110 fittings, for which Star would stock “A” items 

and otherwise produce on a per-project basis. (McCutcheon, Tr. 2292-2293; CX 2537 

(McCutcheon, IHT (Vol. 1) at 133) (Star was anticipating having a lot of patterns, but not 

all, by the end of 2009)). 

1728.	 The contracting and incremental approach to entering the Domestic Fittings market 

adopted by Star is the same approach that others had taken when entering the imported 

Fittings market. (CX 2527 (Pais, IHT at 155) (import entry); Pais, Tr. 1723 (Sigma first 

entered Fittings market with about 50 items); CX 2522 (Agarwal, Dep. at 75-76), in 

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camera { 

} 

}; CX 2522 (Agarwal, Dep. at 97-98), in camera { 

10.1.2.3 Star Planned to Buy or Build Its Own Foundry in Order to 

Recognize Manufacturing Cost Efficiencies After It Had 

Sufficient Sales to Justify the Additional Investment 

1729. {

 (Bhargava, Tr. 2946; CX 2537 (McCutcheon, IHT (Vol. 1) at 108-109), 

in camera { 

1730.	 { 

(Bhargava, Tr. 2963, in camera { 

(Bhutada, Dep. at 127), in camera { 

1731.	 {

camera). {

1732.	 {

; CX 2535 

; see infra § 10.9.2.1)). 

(Bhargava, Tr. 2961, in 

(Bhargava, Tr. 2962, in camera). 

 (Bhargava, Tr. 2955-2956, in camera). 

10.1.3 Star Took the Steps Necessary to Enter the Domestic Fittings Market 

in 2009 

1733.	 {

 (Bhargava, Tr. 

2936-2938, in camera; CX 2535 (Bhutada, Dep. at 50); CX 2533 (Bhargava, Dep. at 30, 

in camera); infra ¶¶ 1734-1757). 

10.1.3.1 Star Identified and Contracted with Independent, Third-Party 

Foundries to Produce Domestic Fittings for Star 

1734.	 In 2009, Star identified and contracted with independent, third party foundries to produce 

Domestic Fittings for Star. (Infra ¶¶ 1735-1747). 

1735.	 { 

260 
 

 

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} (Bhargava, Tr. 2931-2932, in camera; CX 

2535 (Bhutada, Dep. at 56), in camera). 

1736.	 { 

(CX 2535 (Bhutada, Dep. at 57, 118-119), in camera). 

1737. {

 (CX 2535 (Bhutada, 

Dep. at 119), in camera; CX 2533 (Bhargava, Dep. at 93), in camera). 

1738.	 {

 (Bhargava, Tr. 2937-2938, in 

camera; CX 2535 (Bhutada, Dep. at 57-59), in camera). 

1739.	 {

 (CX 2533 (Bhargava, Dep. at 30, in camera)). 

1740.	 { 

(Bhargava, Tr. 2933, in camera; CX 2535 (Bhutada, Dep. at 60), in camera). { 

} (CX 2535 

(Bhutada, Dep. at 61), in camera). 

1741.	 Star and Frazier & Frazier, a domestic foundry, signed a confidentiality agreement on 

June 2, 2009, and a supply chain agreement on June 12, 2009. (RX-665 (Gupta, Dep. at 

16, 20, 43-44). 

1742.	 On July 2, 2009, Star submitted a purchase order to Frazier & Frazier for $328,599 worth 

of Domestic Fitting castings. (RX-665 (Gupta, Dep. at 48, 49)). Frazier & Frazier sold 

its first Domestic Fitting casting to Star in approximately August 2009. (RX-665 (Gupta, 

Dep. at 57-58)). 

1743.	 Frazier & Frazier produced 70 to 80 patterns of Domestic Fitting castings for Star by the 

end of 2009, which increased to approximately 300 unique patterns with a 9” or smaller 

diameter by 2012. (CX 2506 (Gupta, Dep. at 75-76, 89-90)). 

1744.	 Star first contacted Glidewell about making Domestic Fitting castings at the end of 2009 

or early in 2010, and Glidewell began producing Domestic Fittings casting for Star less 

than one month later. (RX-666 (Glidewell, Dep. at 29-30, 58)). 

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1745.	 In 2010, Glidewell sold $635,439 in products, and 34 different types of Fittings castings 

to Star in 2010. (RX-666 (Glidewell, Dep. at 54); CX 1417 at 007). In 2011, Glidewell 

sold $590,773 in products, and 46 different types of Fittings castings to Star. (RX-666 

(Glidewell, Dep. at 56-57); CX 1418 at 008). And from January 1, 2012 through March 

23, 2012, Glidewell sold $83,878 in products. (RX-666 (Glidewell, Dep. at 58); CX 

1419 at 002). 

1746.	 Star and Mabry entered into a confidentiality agreement for the production of Domestic 

Fittings castings on November 2, 2009, and Mabry began producing at least three types 

of Domestic Fittings castings for Star by the end of 2009. RX-676 (Hall, Dep. at 32-33, 

37-38, 67-68)). 

1747.	 In 2010, Mabry produced at least 135 types of Domestic Fitting castings for Star. (CX 

1581; RX-676 (Hall, Dep. at 69)). To date, Mabry has produced at least 177 types of 

Domestic Fitting castings for Star, resulting in approximately $2.9 million in invoices 

from Mabry to Star. (CX 1581; RX-676 (Hall, Dep. at 69-70)). 

10.1.3.2 Star Acquired Patterns for Producing Domestic Fittings 

1748.	 To enter the Domestic market, Star acquired patterns in China that could be used at 

foundries in the United States for the construction of a full line of C153 Fittings. (CX 

2537 (McCutcheon, IHT (Vol. 1) at 112-113); RX-694 (Bhutada, Dep. at 51); infra 

1749. 

1750.	 By September 2009, Star had obtained in China the patterns for the most popular Fittings 

¶¶ 1749-1754). 

Star invested approximately $3.5 million to secure the patterns necessary for producing 

Domestic Fittings. (RX-694 (Bhutada, Dep. at 62)). 

that it had identified for inclusion in its initial Domestic Fittings offering, and these 

patterns were either available in the United States or were in transit to the United States. 

(CX 2535 (Bhutada, Dep. at 55). 

1751. By the end of 2009, Star had patterns for more than 325 C153 Fittings. (CX 2533 

(Bhargava, Dep. at 61)). 

(CX 2533 (Bhargava, 

1752. 

Dep. at 65-66), in camera). 

{

 (CX 2533 (Bhargava, Dep. at 66), in camera). 

1753. {

(Bhargava, Tr. 3013, in camera). Star was capable of 

offering a full line of C153 Fittings comparable to the line of Domestic Fittings offered 

by McWane. (CX 2537 (McCutcheon, IHT (Vol. 1) at 115-116); see also Bhargava, Tr. 

3011-3012, in camera { 

; CX 2533 (Bhargava, Dep. at 65-66), in 

camera { 

} 

262 
 

PUBLIC RECORD

1754.	 Star did not immediately acquire patterns for the less commonly used C110 Fittings, 

except when a Distributor placed an order for a particular C110 Fitting. (CX 2537 

(McCutcheon, IHT (Vol. 1) at 113-114)). When it received an order for a C110 Fitting, 

Star would place an order for the appropriate pattern. By using this approach, it was able 

to compete in the smaller, less active market for domestic C110 Fittings. (CX 2537 

(McCutcheon, IHT (Vol. 1) at 113-114)). 

10.1.3.3 Star Expanded Its Finishing Facilities for Domestic Fittings 

1755.	 {

 (McCutcheon, Tr. 2288-2289; Bhargava, Tr. 

2937-2939, in camera; RX-694 (Bhutada, Dep. at 62)). 

1756.	 {

 (Bhargava, Tr. 2940, in camera { 

} 

1757.	 {

 (Bhargava, Tr. 2939, in camera). 

10.1.4 Star’s Imported Fittings Business Provided It with the Expertise and 

Distributor Relationships Necessary for Manufacturing and Selling 

Domestic Fittings 

1758.	 Star’s existing imported fittings business provided it with the expertise and Distributor 

relationships necessary for manufacturing and selling Domestic Fittings. (Infra ¶¶ 1759­

1765). 

1759.	 { } 

(Bhargava, Tr. 2979-2980, in camera) { 

1760.	 As an existing supplier of non-Domestic Fittings, Star already had in place the network of 

Distributor customers required to enter and compete effectively in the Domestic Fittings 

market. (Answer at ¶ 25 (“[A]ll suppliers of [Fittings] have distribution relationships or 

other abilities within the United States sufficient to enable them to compete effectively 

throughout the country.”)). 

1761.	 Star’s entry into the Domestic Fittings market did not require any changes to Star’s sales 

team. (McCutcheon, Tr. 2287). 

1762.	 Star’s entry into the Domestic Fittings market did not require any changes to Star’s 

relationships with its existing Distributor customers, who would also be its customers for 

Domestic Fittings. (McCutcheon, Tr. 2287). 

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1763.	 Star’s entry into the Domestic Fittings market did not require any changes to Star’s 

existing regional distribution centers, which Star would also use for Domestic Fittings. 

(McCutcheon, Tr. 2287). 

1764.	 In 2009, Star already had in place the back office support needed to sell a line of 

Domestic Fittings. (McCutcheon, Tr. 2288). 

1765.	 Star did not encounter any problems with municipalities accepting its Domestic Fittings 

under Domestic specifications. (McCutcheon, Tr. 2294-2295). 

10.1.5 Star Had the Overwhelming Support of Its Customer Base 

1766.	 After ARRA was enacted, Star’s customers were concerned about their access to 

Domestic Fittings and were “begging for someone to solve their problem.” (CX 2537 

(McCutcheon, IHT (Vol. 1) at 132) (“[O]ur phone was ringing off the hook, what are you 

guys going to do, I got – you know, we’re going to need you.”)). 

1767.	 Distributors welcomed another Domestic Fittings supplier in the market. (CX 2489 

(Morrison, IHT at 69) (“[I]n June of ‘09 is when Star announced theirs and that sort of 

rocked the world from a waterworks distribution standpoint of: Hey, here’s going to be 

another source.”); CX 2546 (Gibbs, Dep. at 92) (“It was the talk of the show if you were 

in the ductile iron fitting business.”); CX 2513 (Webb, IHT at 179-180) (describing his 

response to Star’s entry as “positive” and stating that “becoming domestic in nature is in 

general a positive for the country”)). 

1768.	 Star believed that its announcement of its Domestic entry was favorably received by its 

Distributor customers. At the AWWA show in June 2009, Mr. McCutcheon discussed 

Star’s entry with as many as 100 different Distributors, including HD Supply, Ferguson, 

TDG, Groeniger and the WinWater Group, and they uniformly told him they were 

pleased that Star was entering. (McCutcheon, Tr. 229610 (“The general reaction was that 

the customer base was happy to have another option, to have some competition in the 

domestic fitting arena, and it was extremely well-received”); CX 2537 (McCutcheon, 

IHT (Vol. 1) at 125, 127, 130, 133) (Star was “the hit of the show . . . the talk of the 

town”)). 

1769.	 All of the Distributors that came to Star’s booth at the AWWA show gave Star some 

form of soft commitment of support, such as “this is excellent,” “outstanding,” “I am glad 

you guys are doing it,” or “I will definitely buy from you guys.” (CX 2537 

(McCutcheon, IHT (Vol. 1) at 132-133)). 

1770.	 None of Star’s customers expressed a negative reaction to Star’s entry into Domestic 

Fittings. (McCutcheon, Tr. 2300). 

10 The cited trial testimony regarding out of court statements of the Distributors is cited for its 

effect on Mr. McCutcheon and Star, not to prove the truth of the matters asserted in the 

statements. (See McCutcheon, Tr. 2296). 

264 
 

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1771.	 Distributors explained to Star that they supported Star’s entry because they believed that 

having a second supplier of Domestic Fittings would provide balance to the market, 

improving both price and service and enabling Distributors to better serve End Users. 

(CX 2537 (McCutcheon, IHT (Vol. 1) at 126-128)). 

10.1.6 Star Began Producing Domestic Fittings 

1772.	 As planned, Star began producing, selling and shipping Domestic Fittings in late 2009. 

(Infra ¶¶ 1773-1781). 

1773.	 { } (Bhargava, Tr. 

3002, in camera). 

1774.	 { } (CX 2535 

(Bhutada, Dep. at 60), in camera). 

1775.	 Distributors requested a significant number of quotes for Domestic Fittings from Star 

between June 2009, when Star announced its entry into the Domestic Fittings market, and 

September 2009. (McCutcheon, Tr. 2300; CX 2535 (Bhutada, Dep. at 66)). 

1776.	 An August 25, 2009 roll-out schedule for Star’s Domestic Fittings promised availability 

of 80% of compact and flange Fittings between September 15, 2009 and November 15, 

2009, and availability of 95% of such Fittings between December 1, 2009 and February 

15, 2010. (CX 2215 at 002-003 (schedule as sent to U.S. Pipe on September 3, 2009); 

see also RX-207 at 001-002 (as sent to Ferguson on September 4, 2009)). 

1777.	 Star met its planned production dates for bringing its Domestic Fittings production online 

and rolling out its Domestic Fittings line. (McCutcheon, Tr. 2294). 

1778.	 By September or October of 2009, Star was building its inventory of Domestic Fittings. 

(McCutcheon, Tr. 2300; RX-692 (Bhargava, Dep. at 113)). 

1779.	 Star charged a price for Domestic Fittings that was competitive with McWane’s price, if 

not slightly cheaper. (CX 2535 (Bhutada, Dep. at 82-83)). 

1780. 

1781.	 {

 (CX 2508 (Kurhts, Dep. at 54-55, in camera)). 

There were a limited number of instances in which Star had to delay delivery of 

Domestic Fittings to Distributor. Star hardly lost any sales because of delays in 

deliveries. (CX 2535 (Bhutada, Dep. at 123-124); RX-696 (McCutcheon, IHT (Vol. 1) at 

202-203) (Star did not lose any customers because of problems it faced by acquiring 

Domestic Fittings from contracting foundries); CX 2535 (Bhutada, Dep. at 82) (No 

supplier regularly can immediately provide 100% of the Domestic Fittings demanded by 

Distributors)). 

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10.2	 McWane Adopted an Exclusive Dealing Policy with the Specific Intent to 

Eliminate Star as a Competitor in the Domestic Fittings Market 

1782.	 McWane developed, adopted, and implemented an Exclusive Dealing Policy (see infra 

¶ 1824) with the specific intent of eliminating Star as a competitor in the Domestic 

Fittings market. (Infra ¶¶ 1783-1822). 

1783.	 McWane was “caught blindsided” by Star’s announcement at the June 2009 AWWA 

show that it would be entering the Domestic Fittings market. This was the first time that 

Mr. Tatman had learned that Star was entering the Domestic Fittings market. (Tatman, 

Tr. 644). 

1784.	 On June 15, 2009, Mr. Tatman forwarded Star’s domestic entry announcement to Mr. 

McCullough and Mr. Walton, and reported that “[w]e’re trying to get confirmation on the 

breath [sic]of the available fittings available and the locations of the foundries they are 

working with. One distributor believes they are working with multiple domestic 

foundries but that has not been substantiated.” (CX 1674 at 001). 

1785.	 McWane also tried to find out which foundries were working with Star in its domestic 

production because McWane did not want any foundry that it was working with to also 

work with Star. (CX 2479 (McCullough, Dep. at 161-162); CX 0354 at 001). 

1786.	 In addition to its exclusive dealing policy, McWane’s sales force also actively tried to 

prevent Star from being listed with municipalities as an eligible supplier of Domestic 

Fittings. (CX 2477 (Jansen, Dep. at 195-198); CX 1605)). 

10.2.1 McWane Feared That Star’s Entry Would “Cream” Prices in the 

Domestic Fittings Market 

1787.	 McWane feared that Star’s entry into Domestic Fittings would cause prices in the 

Domestic Fittings market to erode. (Infra ¶¶ 1788-1797). 

1788.	 Upon hearing an update that Star apparently was entering as a full-line supplier, Mr. 

McCullough wrote, “Star is a determined competitor that just keeps making a bad 

industry worse.” (CX 0423). Mr. McCullough explained that he was expressing a 

concern that Star would change what was “basically a break-even [Fittings] business,” to 

one where McWane was “going to lose more money.” (CX 2479 (McCullough, Dep. at 

165)). 

1789.	 On June 24, 2009, Mr. McCullough sent an email to Mr. Tatman, cc’ing Mr. Walton, 

requesting information about Star’s domestic entry and Sigma’s potential entry. 

Specifically, Mr. McCullough raised questions regarding McWane’s “position short 

term/long term on sharing distribution of our domestic fitting line. Just because we 

share our blended fittings does not require us to share our domestic, especially if the 

competition is a short line domestic supplier.” (CX 0074 at 002 (emphasis added); 

Tatman, Tr. 646-647). 

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1790.	 In a June 24, 2009 email, Mr. Walton responded to Mr. McCullough’s email and 

expressed his concern that : 

Whether we end up with Star as a complete or incomplete 

domestic supplier my chief concern is that the domestic market 

gets creamed from a pricing standpoint just like the non-domestic 

market has been driven down in the past. That would 

dramatically effect our profit potential. Further, I have a sense 

there is a slim to none possibility that we would ever be able to sell 

Star domestic product at this point, one I do not think they would 

ever trust us and, two they seem to be so far down the road that I 

do not think they will be willing to turn back. I do agree whole 

heartedly that we need to evaluate our options and plot a 

comprehensive strategy going forward. 

(CX 0074 at 001 (emphasis added); CX 2485 (Walton, Dep. at 91-92) (email accurately 

reflected Mr. Walton’s “chief concern” regarding Star’s entry at the time); Tatman, Tr. 

647). 

1791.	 Mr. Tatman’s initial response to Mr. McCullough’s and Mr. Walton’s emails was to 

agree that there were “slim” chances for “profitable cohabitation” of the Domestic 

Fittings market with Star, and that McWane needed to ensure that Star didn’t “reach any 

critical market mass that will allow them to continue to invest and receive a profitable 

return:” 

I agree that at this stage the chance for profitable cohabitation with 

Star owning a pc of the Domestic market is slim. Their actions in 

soil pipe are a good indication. . . . If their claims are ahead of their 

actual capabilities we need to make sure that they don’t reach any 

critical market mass that will allow them to continue to invest 

and receive a profitable return . . . . I don’t sense that Sigma is 

yet fully committed and they will be watching our response very 

closely to assess their strategy and probability of financial 

success.” 

(CX 0074 at 001 (emphasis added); Tatman, Tr. 649-652). 

1792.	 On or about June 29, 2009, Mr. Tatman drafted and sent a PowerPoint presentation to 

Messrs. McCullough and Walton that expressed his concern that Star might “drive 

profitability out of business,” and assumed that Star “would not be a responsible 

competitor [in the Domestic market] as long as incremental sales generate incremental 

margins for their business.” (CX 0076 at 009, 006, 001; Tatman, Tr. 653-656). 

1793.	 McWane’s concern was rooted in its perception of Star as historically being an 

“aggressive” competitor that obtains business by offering Project Pricing and lower 

prices than McWane. (CX 2480 (Napoli, Dep. at 66) (“yeah, obviously, [Project Pricing] 

is one of their tactics”); CX 0105 at 001 (Tatman post-September 22, 2009 strategy 

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notes) (“Star has historically shown that they will just continue incremental discounting 

down to the point when they’re selling near breakeven.”); CX 2483 (Tatman, IHT at 183­

184) (Star “would normally be very, very, very aggressive with pricing”); CX 2483 

(Tatman, IHT at 232-234) (“Star historically has been a very aggressive and sometimes 

irrational—it’s always irrational to you, because you don’t know what they’re doing on 

that....So we have a perception, whether it’s true or not, that they’re a little bit irrational 

for what they do, and they just like to shake things up.”)). 

1794.	 When Star offers Project Pricing to Distributors, it requires McWane also to lower its 

price if it wants to win that business. (CX 2480 (Napoli, Dep. at 69, 71) (describing 

Project Pricing as “irresponsible” when a supplier cuts its prices more steeply than 

necessary to win the job, and that Star cuts its prices “more than they need to”)). 

1795.	 McWane believes that Star has “absolutely ruined pricing nationwide” because they only 

know how to sell their products through discounting, and that this has “totally devastated 

the Southeast” pricewise. (CX 1611 at 001; CX 2480 (Napoli, Dep. at 77-79) (stating 

that CX 1611 accurately reflected market facts)). 

1796.	 Accordingly, in the narrative for McWane’s 2010 budget, Mr. Tatman listed the biggest 

risk factor for McWane’s Fittings business in 2010 as the “Erosion of domestic pricing if 

Star emerges as a legitimate competitor.” (CX 0102 at 002 (narrative accompanying 

Tyler/Union’s 2010 budget); CX 0102 at 002). 

1797.	 McWane knew that the mere threat of low prices from Star could bring down prices in 

the market. (CX 1609 at 001 (explaining that exclusive dealing policy “keeps the market 

stable”); CX 2477 (Jansen, Dep. at 219-220) (explaining CX 1609 and that if a 

Distributor were to take Star up on its Domestic Fittings offer, “the whole market will go 

to hell” because prices would decrease in the stable Utah market)). 

10.2.2 McWane Wanted to Prevent Star from Gaining a “Toehold” in the 

Domestic Fittings Market 

1798.	 McWane wanted to prevent Star from gaining a toehold in the Domestic Fittings market. 

(Infra ¶¶ 1799-1803). 

1799.	 McWane wanted to prevent Star from gaining a toehold with Distributors in the sale of 

Domestic Fittings because McWane was concerned Star would then lower market prices. 

For example, McWane executives were concerned that Distributors not aligned with 

McWane would cause McWane’s loyal Distributors to pressure McWane for lower prices 

so that they could compete against the Distributors supporting Star: 

It’s the take-a-hit now vs take-a-hit-for-decades argument as in 

1984-1990. We chose not to react then and know the result. We 

may not be losing business now but I am concerned about the 

future. Those dist. not aligned with us or Sigma will be aggressive 

with Star backing them against our people... When that happens 

our distributors will continually pressure us to ‘do something’ 

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(lower prices). If they stay in the business we will always see 

downward pressure in the future. 

(CX 2192; CX 2480 (Napoli, Dep. at 90-95) (discussing CX 2192 and that, in order to 

avoid the loss of business and lower prices that occurred when imported Fittings first 

entered the U.S. market, McWane should lower their Domestic Fittings prices so that Star 

will become convinced that the Domestic Fittings business is unprofitable and exit the 

market)). 

1800.	 McWane understood that there would be no need for McWane to match Star’s prices if 

nobody was willing to buy Domestic Fittings from Star; in such cases, Star’s price would 

be “mute” [sic] or not “real.” (CX 0108; CX 2477 (Jansen, Dep. at 178-181) (explaining 

that sales representatives should use this response when Distributors express concern that 

one of their Distributor competitors could underbid them using Star’s low Domestic 

Fittings prices)). 

1801.	 McWane’s National Sales Manager, Mr. Jansen, wrote to his sales representatives, “We 

don’t want the market tumbling and if we keep everyone on board we shouldn’t have to 

drop prices.” (CX 0107; CX 2477 (Jansen, Dep. at 228-229) (explaining that “market 

tumbling” means prices falling; and “keep everyone on board” refers to Distributors 

being loyal to McWane under the exclusive dealing program)). 

1802.	 McWane also wanted to prevent Star from gaining a toehold with local Distributors 

because that would help Star gain legitimacy as a supplier of Domestic Fittings. (CX 

2261 at 002 (Jansen email, “We need to make sure we are getting into the smaller players 

up there and keep them from Star. That’s how a cancer starts is by letting them get in 

with one, two, then three, and it crumbles from there.”)). 

1803.	 As Mr. Napoli explained, 

Like any -- any competitive situation in any industry, I mean, 

they’ll start with the small ones. They won’t go after the big fish 

first. They’ll go to the small ones and build their -- build their 

reputation. You know, a competitor is not going to go to -- a new 

competitor in something is not going to go to Walmart from day 

one. They’ll go to somebody smaller. Maybe that’s not a good 

analogy, but they’ll go to somebody smaller and build reputation 

and build a -- you know, a base and then go from there to bigger 

ones, makes them a little more legitimate, let’s say, if they have a 

history or a track record. 

(CX 2480 (Napoli, Dep. at 105-107) (explaining CX 2261); (CX 0100 at 001) (November 

2009 Tatman email) (“What I’m more concerned with at this point is Hajoca supporting 

Star’s domestic program and the potential price ripple effect that could have in the 

market.”)). 

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10.2.3 McWane Developed Its Exclusive Dealing Policy Specifically to 

“Block” Star 

1804.	 Between May and August of 2009, McWane developed an Exclusive Dealing Policy for 

Domestic Fittings for the specific purpose of “blocking” Star from entering the Domestic 

Fittings market. (Infra ¶¶ 1805-1814). 

1805.	 In a May 26, 2009 presentation discussing McWane’s possible strategic responses to 

potential competitive entry into the Domestic Fittings market and whether to sell 

Domestic Fittings to Sigma, Mr. Tatman observed that “any competitor” seeking to enter 

the Domestic market could face “significant blocking issues” if they are not a “full line” 

domestic supplier. (CX 0067 at 002 (emphasis added) (noting that approximately 500 

patterns are required to cover 95% of Fittings items); Tatman, Tr. 620-621; see also CX 

2529 (Rona, IHT at 195-196 (“Q. Do you think McWane’s policy that we’re discussing 

here, this exclusivity with respect to distributors, is something that could erect a 

roadblock to a new entrant coming into the market with less than a full line? A. There’s – 

there’s no question for any entrant that requiring exclusivity on those parts would be 

inherently more difficult than without it.”)). 

1806.	 After Star had announced its planned entry into the Domestic Fittings market, Mr. 

Tatman considered how to “block Star” from entering the Domestic Fittings market. 

(CX 0076 at 008 (emphasis added)). 

1807.	 In a cover email transmitting his June 29, 2009 presentation, Mr. Tatman concluded that 

if McWane could keep Sigma from establishing an independent source for Domestic 

Fittings, leaving Star as the only Domestic entrant, then “the appropriate response to 

distribution is probably fairly hard line approach like a full line or no line approach.” 

(CX 0076 at 001; Tatman, Tr. 653-655). 

1808.	 Mr. Tatman’s June 29, 2009 presentation described three potential options for McWane’s 

response to Star’s entry: employ a “Wait and See approach,” “Handle on a Job by Job 

basis,” or “Force Distribution to Pick their Horse.” (CX 0076 at 009; Tatman, Tr. 658). 

a.	 A disadvantage (indicated by a “minus” sign) of the “Wait and See” approach 

identified by Mr. Tatman in the presentation was that it would give Star “time to 

continue building their business model.” (CX 0076 at 009). 

b.	 A disadvantage of the “Job by Job” approach identified by Mr. Tatman in the 

presentation was that it would allow Star to “drive profitability out of the business.” 

(CX 0076 at 009; Tatman, Tr. 658). 

c.	 The advantages (indicated by a “plus” sign) listed by Mr. Tatman for the “Pick their 

Horse” option included: 

	 It “[a]voids the job by job auction scenario within a 

particular distributor” 

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	 It [p]otentially raises the level of supply concern among 

contractors” and 

	 It “[f]orces Star/Sigma to absorb the costs associated with 

having a more full line before they can secure major 

distribution” 

(CX 0076 at 009; Tatman, Tr. 658-666; see also CX 2483 (Tatman, IHT at 242­

243) (explaining, in the context of this language, that it is quicker to build business 

through large national Distributors such as HD Supply and Ferguson); Tatman, Tr. 

676-679 (Tatman does not recall the intent behind the discussion point “Forces 

Star/Sigma to absorb the costs associated with having a more full line before they 

can secure major distribution”); Tatman, Tr. 679-680 (Tatman does not recall 

whether he considered “major distribution” to be major national Distributors)). 

1809.	 Mr. Tatman further elaborated on the “Pick their Horse” option, describing a “Soft 

Approach” whereby a Domestic rebate would require exclusivity, and a “Hard 

Approach – Full Line or No Line,” under which access to Domestic product line would 

“require[] exclusivity for Domestic fitting items we manufacture” – i.e., if a customer did 

not support McWane’s full Domestic Fittings line, McWane would not sell to them. (CX 

0076 at 010; Tatman, Tr. 672-674). 

1810.	 Either approach under the “Pick their Horse” option would be applied to Distributors on a 

corporate basis (i.e., across all branches of the Distributor), rather than “branch by 

branch.” (CX 0076 at 010; Tatman, Tr. 675)). 

1811.	 Mr. Tatman wrote that an added consideration was that successful exclusion of Star could 

help deter Sigma from following through on its own plan to enter the Domestic Fittings 

market. (CX 0076 at 008 (“[T]he only reason for [Sigma] not to pursue [Domestic entry] 

is if they feel McWane’s response will make Star’s or their programs un-successful 

which may cause them to hold off making any heavy investments”)). 

1812.	 On July 2, 2009, when pressed by Mr. Walton for a recommended course of action with 

respect to Domestic Fittings, Mr. Tatman responded that the “‘Full Line or No Line 

approach would be the preferred approach and certainly the best option against Star.” 

(CX 0329 at 001). 

1813.	 On August 5, 2009, Mr. McCullough suggested that McWane should establish exclusive 

relationships in its Domestic supply chain to hinder Sigma’s and Star’s efforts at entry: 

As we establish or continue existing casting sourcing relationships 

we need to emphasize with our casting suppliers that we are not 

interested in sharing their foundry production with Star/Sigma as 

we feel it will weaken the “McWane” brand recognition in the 

market place. 

(CX 0354 at 001). 

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1814.	 On August 24, 2009, Mr. Tatman sent an email to Dennis Charko, head of Clow Water (a 

subsidiary of McWane that sells a limited number of Fittings (see supra ¶¶ 12-13), 

seeking Mr. Charko’s support with respect to implementing the Distributor exclusivity 

program “as a McWane policy inclusive of the Clow brand.” (CX 0113 at 001). In that 

email Mr. Tatman described the policy as follows: 

Star, has announced a Domestic line of waterworks fittings and 

restraints. . . . 

To protect our domestic brands and market position we are going 

to adopt a distributor exclusivity program for 2010 wherein we 

won’t provide domestic product to distributors who are not fully 

supporting our domestic product lines.” 

(CX 0113 at 001; Tatman, Tr. 686-687). 

10.2.4 McWane’s Specific Intent to Exclude Star Is Also Reflected in 

McWane’s 2009 Revisions to Its Corporate Rebate Program 

1815.	 McWane’s specific intent to exclude Star from the Domestic Fittings market is reflected 

in McWane’s 2009 revisions to its corporate rebate program. (Infra ¶¶ 1816-1822). 

1816.	 McWane’s major customers, including WinWholesale, Ferguson, Hajoca, HD Supply 

and Mainline, have participated in McWane’s corporate rebate program during the 

relevant period. (CX 2479 (McCullough, Dep. at 28, 33-34) (McWane offers a 2% rebate 

on customer purchases across multiple divisions of McWane, including Fittings); 

Tatman, Tr. 709-711). TDG has a separately negotiated rebate program. (Tatman, Tr. 

709-711; see also ¶¶ 4.5.3.1 (describing rebates)). 

1817.	 The Corporate Rebate Program has specific requirements that participating Distributors 

must meet in order to earn the 2% rebate. If a Distributor fails to comply with a 

requirement, Mr. McCullough speaks to that Distributor and asks it to correct its noncomplying conduct. (CX 2479 (McCullough, Dep. at 45-47)). 

1818.	 McWane understood that Distributors participating in its Corporate Rebate Program did 

not want to risk non-compliance with the program and potentially lose their 2% rebate on 

all of their applicable purchases across product lines from McWane. (CX 2479 

(McCullough, Dep. at 54-55; CX 0051 at 001)). 

1819.	 On or about November 19, 2009, Mr. Tatman proposed modifying one of the 

requirements that participating Distributors have to meet in order to earn their 2% 

corporate rebate from McWane. Specifically, Mr. Tatman proposed revising the final 

Corporate Rebate Program for 2010-2012 for HD Supply and others to state that HD 

Supply may lose its 2% corporate rebate, which is based on all of HD Supply’s purchases 

of Fittings, soil pipe, iron pipe, and valve and hydrants from McWane, if HD Supply 

purchased Domestic Fittings from Star. (CX 0131 at 001, 002; CX 2479 (McCullough, 

Dep. at 155-156)). 

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1820.	 According to Mr. Tatman, his proposed modification to McWane’s corporate rebate 

program was to “essentially eliminate Star as a supplier of domestic fittings.” (CX 0100 

at 001). 

1821.	 On or about December 8, 2009, Mr. McCullough proposed extending the duration of 

McWane’s corporate rebate program from one year to three years in part because he 

wanted “to remove the opportunity for Star to introduce their domestic made fittings” to 

McWane’s large Distributor customers that participated in their Corporate Rebate 

Program. (CX 0126 at 001; CX 2479 (McCullough, Dep. 146-148)). 

1822.	 Both of these proposed modifications, i.e., extending the duration of the corporate rebate 

program and having Distributors risk their rebate if they purchased Domestic Fittings 

from Star, appeared in documents described as “Final Rebate Program 2010-2012.” (CX 

0131 at 001, 002 (email describing HD Supply program as “final” and attaching it); CX 

2479 (McCullough, Dep. at 156) (supporting veracity and competence of Mr. Lowe, who 

transmitted CX 0131 to him)). 

10.3	 McWane Implemented a “Hard Line” Exclusive Dealing Policy 

1823.	 McWane implemented a “hard line” Exclusive Dealing Policy under which it would cut 

off its supply of Domestic Fittings to any Distributor that did not source Domestic 

Fittings exclusively from McWane. (Infra ¶¶ 1824-1828). 

10.3.1 McWane Published Its Exclusive Dealing Policy on September 22, 

2009 

1824.	 McWane formally announced its exclusivity policy for its Domestic Fittings business (the 

“Exclusive Dealing Policy”) in a September 22, 2009 letter to Distributors. (CX 0010 at 

001; CX 1606 at 002; Tatman, Tr. 659, 687-689; CX 2477 (Jansen, Dep. 158-159) 

(September 22, 2009 letter reflected a new policy)). 

1825.	 Like the Tatman Plan, the Exclusive Dealing Policy was the carefully thought out result 

of a methodical strategic process within McWane. (Tatman, Tr. 752 (“[E]verything we 

do is very methodical and very well thought out.”)). 

1826.	 McWane’s September 22, 2009 letter notified Distributors that they would face penalties 

if they purchased Domestic Fittings from anyone other than McWane: 

[E]ffective October 1, 2009, McWane will adopt a program 

whereby our domestic fittings and accessories will be available to 

customers who elect to fully support McWane branded products 

for their domestic fitting and accessory requirements. . . . 

Exceptions are where Tyler Union or Clow Water products are not 

readily available within normal lead times or where domestic 

fittings and accessories are purchase from another domestic pipe 

and fitting manufacturer along with that manufacture’s [sic] ductile 

iron pipe. 

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Customers who elect not to support this program may forgo 

participation in any unpaid rebates for domestic fitting and 

accessories or shipment of their domestic fittings and accessory 

orders of Tyler Union or Clow Water products for up to 12 

weeks. 

(CX 0010 at 001 (emphasis added); CX 1606 at 002; Tatman, Tr. 659, 687-688; CX 0559 

at 002; CX 1190). 

1827.	 Of the three options (“Wait and See,” “Job by Job basis,” or “Pick their Horse”) that Mr. 

Tatman had presented in his June 29, 2009 presentation, (see supra ¶ 1808-1809), 

McWane’s Exclusive Dealing Policy as reflected in its September 22, 2009 letter most 

closely aligned with the “Pick their Horse” option. (CX 2483 (Tatman, IHT at 246-247) 

(“The letter of September 22 would more closely align with the option 3”)). 

1828.	 Mr. Tatman referred to the Exclusive Dealing Policy as an “exclusivity” policy both 

before and after the policy was announced on September 22, 2009. (CX 0340 (referring 

to “pending policy on supply exclusivity” on September 8, 2009); Tatman, Tr. 692 

(same); CX 1246 (referring to “exclusivity policy” on September 23, 2009); Tatman, Tr. 

697 (same)). 

10.3.2 McWane Implemented the Exclusive Dealing Policy by 

Communicating a Harder Line Policy to Distributors Than Was 

Explicit in Its September 22, 2009 Letter 

1829.	 McWane purposefully, consistently, and systematically communicated the Exclusive 

Dealing Policy to the marketplace and implemented Exclusive Dealing Policy in a 

manner even more “hard line” manner than was explicit in its September 22, 2009 Letter. 

(Infra ¶¶ 1830-1849). 

1830.	 In conversations with its Distributor customers, McWane communicated a more stringent 

policy than was explicitly written in its September 22, 2009 letter to Distributors. 

(Sheley, Tr. 3456-3458 (the September 22, 2009 letter that McWane sent to TDG 

regarding its Exclusive Dealing Policy does not accurately reflect the policy as 

communicated to Illinois Meter in conversations that Mr. Sheley had with Mr. Jansen and 

Mr. Tatman); (CX 2489 (Morrison, IHT at 71-73) (“Well, the message was clear, both 

written and verbally, that if you buy a project from Star, you’re going to go on our, I’m 

picking the term ‘bad list.’”); CX 2511 (Pitts, IHT at 78) (“Q. So, even though this letter, 

as written, suggests that you may or may not be penalized and that if you are penalized, it 

could be for – it could be one or the other – A. Yeah, um-hum. Q. – or essentially both – 

A. Selective enforcement, yeah. Q. – the – the message that Hajoca received, and 

specifically that Mr. Tatman and Mr. Jansen relayed to you, was that it would be – both 

would be implemented against Hajoca – A. Correct. Q. and it would happen indefinitely 

– A. Correct. Q. – if – if – A. That’s right. Q. – you started purchasing from Star. A. 

Correct.”)). 

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1831.
 

1832. 

1833. 

1834. 

Despite the “may/or” language of the written Exclusive Dealing Policy – i.e., “Customers 

who elect not to support this program may forgo participation in any unpaid rebates for 

domestic fittings and accessories or shipment of their domestic fitting and accessory 

orders of Tyler Union or Clow Water products for up to 12 weeks,” (CX 1606 at 002 

(emphasis added)) – McWane’s sales team told Distributors that if they purchased 

Domestic Fittings from Star that they would lose both access to McWane’s Domestic 

Fittings and their accrued rebates on Domestic Fittings. (CX 2511 (Pitts, IHT at 76-79, 

137-139) (Stating ‘It wasn’t an either/or. It was both.” Mr. Pitts also said that “[W]e 

were told right away that our Lansdale location would be cut off. They couldn’t buy the 

fittings anymore.” Mr. Pitts further acknowledged that to him, “may” meant “would”, and 

“or” meant “and.”); CX 2515 (Sheley, IHT at 85-87, in camera) { 

In preparation for the rollout of the Exclusive Dealing Policy, McWane’s National Sales 

Manager, Mr. Jansen, led an internal conference call with the McWane sales force on 

August 28, 2009, where he explained to his sales force the “new policy on Star 

Domestic” as follows: 

	 What are we going to do if a customer buys Star domestic? We are 

not going to sell them our domestic . . . . 

o	 This means the customer will no longer have access to our 

domestic. They can still buy [non-Domestic] from us. 

o	 Once they use Star, they can’t EVER buy domestic from 

us. . . . 

o	 For companies with multiple branches (HD, Ferguson, 

Winwater, Hajoca, etc) - if one branch uses Star, every branch 

is cut off.
 

. . . 

 Make sure you are discussing our stance with all customers, every 

day. 

(CX 0710 at 001, 002 (emphasis added) (summarizing sales conference call); see also CX 

2477 (Jansen, Dep. at 164-169) (confirming that CX 0710 accurately reflects Mr. 

Jansen’s statements during conference call); Tatman, Tr. 698-702 (discussing call)). 

Mr. Tatman attended at least a portion of Mr. Jansen’s internal conference call with the 

McWane sales force on August 28, 2009, and he does not recall needing to correct 

anything he heard Mr. Jansen say. (Tatman, Tr. 699, 702). 

Mr. Jansen’s August 28, 2009 instruction to his sales force is consistent with the “Q&A” 

that Mr. Tatman prepared and distributed to his sales force on September 22, 2009. In 

the internal Q&A, Mr. Tatman explained that the result of a Distributor’s disloyalty 

would be that McWane “won’t sell” any Domestic Fittings to that Distributor, not that it 

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“may not sell to that Distributor” (CX 0695 at 004; (CX 2477 (Jansen, Dep. at 198-201) 

(explaining that CX 0695, an internal Q&A for McWane sales force explaining 

McWane’s Exclusive Dealing Policy, was written by Mr. Tatman)). 

1835.	 In a February 13, 2010 email to Mr. Jansen, McWane territory manager Dan Todd 

recalled McWane’s implementation of a policy that was stricter than the written letter: 

I know that the fax stated that we could and or cut people off but 

we were told to tell them more than one time that if you support 

Star then we will not sell to you. Choose Star or Tyler for your 

Domestic products. Doug Allen rode around with me and we 

stated this and you even rode around with me when we told our 

loyal customers this. 

(CX 0172; CX 2477 (Jansen, Dep. at 238-241) (discussing CX 0172: “He’s going by 

what our conference call said. We will cut them off.”)). 

1836.	 McWane further communicated to customers that the Exclusive Dealing Policy would be 

applied on a company-wide basis, such that if one branch purchased Domestic Fittings 

from Star, all branches would be cut off. (CX 0108 at 001; CX 2477 (Jansen, Dep. at 

177-178); CX 2501 (Prescott, IHT at 50)). 

1837.	 For example, Mr. Jansen wrote to his sales force on November 3, 2009: 

Team, I think we have made it very clear in the market regarding 

our stance on supporting the McWane domestic brand of fittings 

whether purchased through Tyler/Union, Clow or Sigma. If one 

branch buys from someone other than this, then the whole 

company will be affected, not just that branch. 

(CX 0108 at 001; CX 2477 (Jansen, Dep. at 177-178) (explaining that he wanted to make 

sure that the sales people expressed this “one clear message” to the market); see also CX 

1599; CX 2477 (Jansen, Dep. at 173-176) (two regional vice presidents of HD Supply 

expressed concern to McWane’s National Sales Manager, Mr. Jansen, that they did not 

want to be “punished” under the McWane policy if another HD Supply branch bought 

Star Domestic Fittings)). 

1838.	 A McWane sales representative wrote to Mr. Jansen on February 13, 2010, in relation to 

whether McWane should cut off Groeniger, a Distributor, because Groeniger bought 

Domestic Fittings from Star: 

I know that the fax stated that we could and or cut people off but 

we were told to tell them more than one time that if you support 

Star then we will not sell to you. Choose Star or Tyler for your 

domestic products. Doug Allen rode around with me and we stated 

this and you even rode around with me when we told our loyal 

customers this. 

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(CX 172; CX 2477 (Jansen, Dep. at 238-241) (explaining that he believed that Groeniger 

bought Star Domestic Fittings as part of a package sale from Griffin Pipe, which was an 

exception to McWane’s Exclusive Dealing Policy)). 

1839.	 The McWane sales force was tasked with compiling logs to document their 

communications of this all-or-nothing message to Distributors. (CX 2477 (Jansen, Dep. 

at 179); CX 1600, CX 1601, CX 1602 (sales force logs of communications with 

Distributors explaining Exclusive Dealing Policy)). 

1840.	 McWane was unwilling to negotiate the terms of its Exclusive Dealing Policy with 

Distributors. (CX 2501 (Prescott, IHT at 50-51) (“If you bought one fitting in one of our 

26 places, we’re out [meaning ‘not having access to McWane’s domestic fittings’], 

simple. I belong to an organization [TDG] that tried to negotiate. Other people tried to 

negotiate. . . . They said it’s all or nothing”); see also Sheley, Tr. 3411-3412 (describing 

heated conversation with Mr. Jansen in January 2010 in which Mr. Jansen threatened 

Illinois Meter with loss of access to McWane’s Domestic Fittings and loss of its rebates 

for both Domestic Fittings and imported Fittings)). 

1841.	 Distributors understood that McWane’s Exclusive Dealing Policy meant “You better not 

buy anything from Star.” (CX 2489 (Morrison, IHT at 72) (“Q. What did you think the 

letter meant as a practical matter? A. Well, I knew what it meant was: You better not buy 

anything from Star. ... [McWane’s] message was clear, both written and verbally that if 

you buy a project from Star, you’re going to go on our, I’m picking the term ‘bad list.’”); 

CX 2515 (Sheley, IHT at 77-78) (“Rick [Tatman] made the statement that he expected a 

hundred percent support for domestic product . . . if we bought any domestic from Star, 

they would not sell us anything. And the statement I made to Rick . . . I asked the 

question, ‘So you’re telling us all or none?’ And he said, ‘That’s correct.’”); CX 2501 

(Prescott, IHT at 50) (“The understanding is in writing. If you bought one [Domestic] 

fitting [from Star] in one of our 26 places, we’re out, simple. . . . They [McWane] said 

it’s all or nothing.”)). 

1842.	 Distributors believed the hard-line message McWane communicated to them regarding 

the policy. (CX 2489 (Morrison, IHT at 73-74) (“I had no reason to think they were 

bluffing. And, having been in this business for 30-plus years and knowing the attitude of 

McWane as a whole . . . there is an arrogance at McWane that I wouldn’t consider it a 

bluff. I would consider it to be that they’re serious about what they say they’re going to 

do to you.”); Sheley, Tr. 3412 (“There was no doubt in my mind they were serious.”)). 

1843.	 McWane also communicated to Distributors that if they purchased Domestic Fittings 

from Star for a project, the Distributor’s rebate program for Domestic Fittings would be 

“voided.” (CX 2489 (Morrison, IHT at 72-73) (“If we have a program with you, it would 

be voided, you know, because you bought something from Star.”); (CX 2544 (Coryn, 

Dep. at 113-114) (“Q. And was it your understanding that if you did purchase [Star 

Domestic Fittings] that you would lose your rebate dollars? A. Yes. Q. The policy on its 

face states that they may forego participation in any unpaid rebates. Was it your 

understanding, though, that you would forego them and that it wasn’t a ‘may forego’? 

THE WITNESS. Well, I took this as that we were going to lose it.”) (objection omitted); 

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1844. 

1845. 

1846. 

1847. 

1848. 

1849. 

CX 2546 (Gibbs, Dep. at 82) (“Q. Were you concerned that the WinWater local 

companies would lose their rebate if a WinWater local company purchased Star domestic 

fittings from Star? A. If they did it on an ongoing basis, yes.”); CX 2515 (Sheley, IHT at 

85, in camera) { 

; CX 2514 (Webb, Dep. at 90) (“My 

understanding is that we would lose the rebate on the domestic fittings . . . .”)). 

In a presentation prepared by Mr. Tatman after implementation of the Exclusive Dealing 

Policy, with the file name “Sigma MDA Review 2.15.2010 Attorney Client Privileged 

Communication.ppt,” Mr. Tatman stated that the market had understood McWane’s 

Exclusive Dealing Policy to mean that McWane “will” – not “may” – cut them off. (CX 

0119 at 002). 

Specifically, Mr. Tatman described McWane’s implementation of the Exclusive Dealing 

Policy as follows: 

Although the words “may” and “or” were specifically used [in the 

September 22, 2009 announcement], the market has interpreted the 

communication in the more hard line “will” sense. 

. . . 

Access to McWane domestic product either through McWane or 

Sigma requires distributors to exclusively support McWane where 

products are available within normal lead times. Violation will 

result in: Loss of access, loss of accrued rebates. 

(CX 0119 at 002, 004; Tatman, Tr. 722-723). 

McWane policed Distributors’ compliance with McWane’s Exclusive Dealing Policy by 

using its sales force to monitor Distributors for any Domestic Fittings purchases from 

Star. (CX 2480 (Napoli, Dep. at 75)). 

Sigma also understood that McWane’s Exclusive Dealing Policy was a “stern ‘all or 

nothing’ message and ‘take it or leave it’ approach,” and Mr. Pais observed that 

Distributors purchasing from Star “risk total exclusion from [Buy American] service 

from [McWane].” (CX 0948 at 001 (September 8, 2009 email); Pais, Tr. 1813-1815). 

Sigma believed that under McWane’s Excusive Dealing Policy that customers like 

Ferguson would lose access to McWane’s Domestic Fittings if they purchased from Star. 

(Pais, Tr. 1809-1813; CX 0948 at 001 (“What intrigues me is how customers like 

Ferguson would even toy with Star when they can risk total exclusion from BA service 

from Tyler on the strength of their passionate commitment to the 1(c) clause -- 

Exclusivity.”)). 

In a September 8, 2009 email to Sigma’s OEM5 management group, Mr. Pais wrote, that 

when re-selling McWane’s Domestic Fittings, he “disguised” McWane’s exclusivity 

requirement as an “issue of ‘fairness’”: 

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What intrigues me is how customers like Ferguson would even toy 

with Star when they can risk total exclusion from BA service from 

Tyler on the strength of their passionate commitment to the ‘1C’ 

clause -- Exclusivity! SO, actually, it may generate a steady loyalty 

to MCW/SIG if it is thoughtfully and effectively introduced and 

promoted! Sensing the pivotal importance of this clause, I have 

disguised it as an issue of ‘fairness’ -- helping SIG/McW thru 

their loyalty in return of our service of them thru delivery of the 

ENITIRE job! 

(CX 0948 at 001) (emphasis added)). 

10.4	 McWane Enforced Its Exclusive Dealing Policy Against Hajoca 

1850.	 McWane enforced the penalty provision of its Exclusive Dealing Policy by cutting off all 

Hajoca branches and by voiding Hajoca’s Domestic Fittings rebates after Hajoca’s Tulsa 

branch bought domestic fittings from Star. (Infra ¶¶ 1851-1859). 

1851.	 Each of Hajoca’s branches makes its own vendor selection decisions, including those 

regarding Domestic Fittings purchases. (Pitts, Tr. 3306-3307). Due to this structure, Mr. 

Tatman acknowledged to Mr. Pitts on September 22, 2009 that McWane’s Exclusive 

Dealing Policy would present Hajoca with “a few more challenges to manage compared 

to other nationals.” (CX 0021 at 001). 

1852.	 On September 22, 2009, Mr. Pitts sent an email to his waterworks regional manager, 

Sean Kelly, attaching McWane’s September 22, 2009 Exclusive Dealing Policy letter, 

and communicating the consequences to Hajoca of that policy. (CX 0021-A at 001). 

1853.	 The week before McWane issued its September 22, 2009 Exclusive Dealing Policy, 

McWane’s National Sales Manager, Mr. Jansen, informed Mr. Pitts that McWane would 

be taking a “hard stance” regarding Star’s entry into the Domestic Fittings market, and 

that if any Hajoca branch purchased Star Domestic Fittings, all Hajoca branches “would” 

(not “may”) lose access to McWane Domestic Fittings, and would possibly lose rebates 

as well: 

I had heard from Jerry Jansen last week that [McWane] would be taking a hard 

stance regarding domestic fittings manufactured for McWane. . . . Jerry had told 

me last week that if any [profit center or branch] in the US purchases domestic 

fittings from Star, all PCs would lose access to McWane’s fittings and possibly 

lose rebates. 

(CX 0021-A at 001 (Pitts September 22, 2009 email); Pitts, Tr. 3296, 3304-3305). 

1854.	 Based on McWane’s September 22, 2009 letter and his conversation with Mr. Jansen, 

Mr. Pitts understood that if any branch of Hajoca purchased Domestic Fittings from Star 

that the consequences would include loss of rebates from McWane and an interruption of 

Domestic Fittings shipments from McWane to Hajoca. (Pitts, Tr. 3300-3303; CX 0021­

A at 001). 

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1855.	 Mr. Pitts also had conversations with Mr. Tatman about the Exclusive Dealing Policy, 

both before and after its September 22, 2009 announcement, and Mr. Tatman reinforced 

the nationwide all-or-nothing nature of the policy – that if one Hajoca branch purchased 

Star, all branches would suffer the consequences. (Pitts, Tr. 3305-3306). 

1856.	 On September 30, 2009, Mr. Pitts asked Mr. Tatman to modify its Exclusive Dealing 

Policy so that McWane would not hold all Hajoca branches responsible if a single branch 

purchased Domestic Fittings from Star. McWane explained that it applies the policy at 

the corporate level because “that’s where the [rebate] check is sent,” and did not agree to 

alter McWane’s policy. Hajoca also offered to change its rebate model so that checks 

would be sent to the individual branches, but McWane did not agree to relax the policy. 

(CX 0022 at 002; Pitts, Tr. 3306-3308). 

1857.	 In a November 3, 2009 email to Mr. Kelly and Mr. Pitts of Hajoca, Mr. Jansen reiterated 

the mandatory and all-or-nothing nature of McWane’s Exclusive Dealing Policy: 

[I]f any Hajoca location chooses to buy another domestic fittings supplier[‘s] 

product Hajoca will not have direct access to the McWane ductile iron water main 

fittings for a period of time as well as loss of any accrued rebate to date. 

(CX 0024 at 001 (emphasis added); Pitts, Tr. 3311-3313 (CX 0024 accurately reflects the 

mandatory nature of the Exclusive Dealing Policy as described to Mr. Pitts by Mr. 

Tatman and Mr. Jansen in multiple conversations)). 

1858.	 Mr. Tatman also informed Mr. Pitts that HD Supply and Ferguson intended to comply 

with McWane’s Exclusive Dealing Policy. (Pitts, Tr. 3305-3306). 

1859.	 At the time of the implementation of McWane’s Exclusive Dealing Policy, almost all of 

Hajoca’s purchases of Domestic Fittings were made by Hajoca’s Tulsa (Oklahoma) and 

Lansdale (Pennsylvania) branches. (CX 0023 at 001). 

10.4.1 Hajoca’s Tulsa Branch Purchased Domestic Fittings from Star 

1860.	 By November 3, 2009, Hajoca’s Tulsa branch had purchased some Domestic Fittings 

from Star. (Pitts, Tr. 3308-3310; CX 0024 at 001). 

1861.	 In an email exchange between Mr. Jansen and Mr. Kelly of Hajoca between November 3, 

2009 and November 7, 2009, Mr. Jansen reiterated the company-wide application of the 

Exclusive Dealing Policy, and acknowledged that Hajoca would have to make a decision 

as to whether to purchase exclusively from McWane. (CX 0024 at 001; Pitts, Tr. 3308­

3310). 

1862.	 Hajoca’s Lansdale, Pennsylvania location purchased a higher volume of Domestic 

Fittings and anticipated losing business if it lost access to McWane’s Domestic Fittings. 

(Pitts, Tr. 3314). 

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1863.	 Hajoca chose to continue allowing its branches to make its own Domestic Fittings vendor 

selections. (Pitts, Tr. 3313 (“Our decision was to stand by our [business model] and let 

the manager of that [Tulsa] location purchase those fittings if he chose to.”)). 

1864.	 On November 16, 2009, Mr. Kelly informed Mr. Jansen that Hajoca “will not be 

changing our current business practice that allows our managers in the field to determine 

where or whom they buy their product,” and “cannot in good conscience support a 

program where the actions of one manager somewhere in the country could undermine an 

entire rebate program for the balance of the business.” (CX 0731 at 001). 

1865.	 The next day, November 17, 2009, Greg Dill of Hajoca’s Tulsa branch contacted Susan 

Schepps of Star and informed her that he would be placing a Domestic Fittings stock 

order the following day. (CX 0731 at 001). 

10.4.2 McWane Cut Off All Hajoca Branches 

1866.	 As a result of Hajoca’s decision to continue allowing its branches to make its own 

Domestic Fittings vendor selections, all of Hajoca’s branches, including Hajoca’s 

Lansdale, Pennsylvania location, lost access to McWane’s Domestic Fittings. (Pitts, Tr. 

3313-3314; Tatman, Tr. 730 (“Q. And you were enacting this policy [Exclusive Dealing 

policy] here by telling Hajoca, you’re cut off; right? A. At this moment in time, that’s 

what we did.”); see also CX 0173 at 001 (Jansen January 19, 2010 email to a customer of 

Hajoca’s Lansdale branch explaining McWane’s cutoff of Hajoca: “We don’t like the 

situation either but feel we can’t support someone who is helping our competition build a 

line against us.”); CX 2477 (Jansen, Dep. at 223-225) (explaining CX 0173 at 001)). 

1867.	 On November 23, 2009, Mr. McCullough informed Sean Kelly of Hajoca that McWane 

would “discontinue selling Hajoca domestic fittings since they are supporting Star’s 

domestic line.” (CX 1800; Tatman, Tr. 729; see also CX 0100 at 001 (November 17, 

2009 internal McWane email) (“What I’m more concerned with at this point is Hajoca 

supporting Star’s domestic program and the potential price ripple effect that could have 

in the market.”)). 

1868.	 Based on his discussion with Sean Kelly, Mr. McCullough reported that Sean Kelly 

understood “[that] Lansdale will also be cut off on domestic. They had hoped to be able 

to buy Tyler/Union at a higher price, but I advised this was not an option.” (CX 1800; 

CX 2479 (McCullough, Dep. at 142) (CX 1800 accurately describes Mr. McCullough’s 

conversation with Sean Kelly of Hajoca)). 

1869.	 Mr. McCullough further reported to McWane’s soil pipe division that Hajoca had elected 

to opt out of the McWane corporate rebate program unless the Exclusive Dealing Policy 

for Domestic Fittings could be regionalized. (CX 0398; CX 2479 (McCullough, Dep. at 

155)). 

1870.	 Mr. Tatman emailed Mr. McCullough and Mr. Walton on November 23, 2009, to confirm 

that all Hajoca orders had been placed on hold, that Sigma had been advised to do the 

same per the terms of the Master Distribution Agreement, and that Jeff Otterstedt and 

Scott Frank of Clow Water had also been advised. (CX 1800; Tatman, Tr. 729-730). 

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1871.	 The next day, Mr. Jansen confirmed to a member of the McWane sales team that the 

Hajoca decision was the “[f]inal word unless they change direction corporately.” (CX 

0702 at 001). 

1872.	 On November 26, 2009, Mr. Tatman sent an email to Mr. Pitts and Mr. Kelly of Hajoca, 

stating “I appreciate the candid dialog from your recent calls.” Mr. Tatman invited 

Hajoca to submit orders for “in process domestic jobs that require near term shipments 

before December 4” (but “excluding Tulsa”), and stated that “[w]hile you certainly don’t 

agree with our stance, I hope that at least you will consider the broader market view 

under which we have to make these decisions.” (RX-237; Tatman, Tr. 730-731; Pitts, Tr. 

3314-3316 (McWane allowed it to place orders to cover existing commitments but after 

that, it cut off all of Hajoca’s access to McWane’s Domestic Fittings)). 

1873.	 Hajoca’s Tulsa branch was excluded from the allowance for final Domestic Fittings 

orders because it was the Hajoca location that had purchased Domestic Fittings from Star. 

(Pitts, Tr. 3316 (testifying that McWane never mentioned any allegations that the Tulsa 

branch had ground off the country of origin on an imported Fitting as the reason why 

Tulsa could no longer purchase Domestic Fittings from McWane)). 

1874.	 On December 14, 2009, Mr. Tatman informed Sigma that it could not supply Hajoca per 

the terms of the Master Distribution Agreement because Hajoca’s Tulsa branch “elected 

to support another brand for some of their Domestic fitting needs,” and that McWane 

therefore had “elected not to supply any of the Hajoca branches with our domestic 

product.” Mr. Rona of Sigma confirmed that Sigma was “clear about Hajoca.” (CX 1801 

at 001; CX 1802 at 001, 002; Tatman, Tr. 720, 739-740; see also Tatman, Tr. 729-730 

(When McWane cut off Hajoca, Mr. Tatman, as a matter of policy, told Sigma not to sell 

to Hajoca); Rona, Tr. 1606, 1608 (Rona forwarded to Sigma’s distribution group the 

instruction not to sell McWane-produced domestic fittings to any Hajoca branch)). 

1875.	 On December 15, 2009, Mr. Tatman also instructed Clow Water not to accept any Hajoca 

orders. (CX 0477 at 001; Tatman, Tr. 721; see also Tatman, Tr. 730 (When McWane cut 

off Hajoca, Mr. Tatman, as a matter of policy, told Clow Water not to sell to Hajoca)). 

1876.	 Scott Frank of Clow Water responded to Mr. Tatman that “All of Clow is aware to NO 

QUOTE and REFUSE all Hajoca orders.” (CX 1802; Tatman, Tr. 738). 

1877.	 Between December 4, 2009 and April 13, 2010, all of Hajoca, including its Landsdale, 

Pennsylvania branch, was unable to place Domestic Fittings orders with McWane 

because of McWane’s Exclusive Dealing Policy. (Pitts, Tr. 3326-3327, 3363). 

1878.	 Between December 4, 2009 and April 13, 2010, Hajoca’s Lansdale, Pennsylvania branch 

had wanted to place a Domestic Fittings order to fulfill a municipal contract but could not 

do so because of McWane’s Exclusive Dealing Policy and McWane’s decision to cut off 

Hajoca’s access to McWane’s Domestic Fittings. (Pitts, Tr. 3316-3320; CX 0027 at 001 

(March 9, 2010) (“I can no longer purchase from [McWane] and have an immediate need 

for a large quantity of flanged fittings that must be Tyler Union.”)). 

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1879.	 Domestic Fittings received by Hajoca from McWane between December 4, 2009 and 

April 13, 2010, if any, were likely in response to orders placed prior to the December 4, 

2009 cut-off date. (Pitts, Tr. 3320-3321; RX-289 at 004). 

10.4.3 After McWane Became Aware of the FTC Investigation, McWane 

Negotiated with Hajoca to Give All Non-Tulsa Branches Access to 

McWane’s Domestic Fittings 

1880.	 After McWane learned of the FTC investigation into its Exclusive Dealing Policy, 

McWane negotiated with Hajoca and ultimately gave all non-Tulsa branches access to 

McWane’s Domestic Fittings. (Infra ¶¶ 1881-1888). 

1881.	 On March 27, 2010, prior to McWane executives meeting with Hajoca executives to 

discuss McWane’s enforcement of the Exclusive Dealing policy against Hajoca, Mr. 

McCullough sent an internal email to find out “[h]ow our potential FTC action might 

effect how we do business with them [Hajoca].” (RX-628 at 001). 

1882.	 Mr. Kelly of Hajoca met with Mr. Tatman in early March 2010, and reported to his 

colleagues that McWane appeared to be “seriously considering softening their stance.” 

(CX 0027 at 001; CX 2479 (McCullough, Dep. at 155) (noting that Hajoca’s sister 

company, EMCO, is McWane’s single largest customer in Canada)). 

1883.	 After a number of attempts by Hajoca to regain access to McWane’s Domestic Fittings, 

McWane eventually began selling Domestic Fittings to Hajoca following discussions at 

the March 2010 ASA meeting that included McWane’s Leon McCullough. (Pitts, Tr. 

3323-3324 (noting that neither Mr. Tatman nor Mr. Jansen were in attendance at 

meeting). 

1884.	 On April 1, 2010, Mr. Kelly reported within Hajoca that he had met with Mr. 

McCullough and others at McWane, and that Hajoca’s Lansdale, PA branch “will be 

reinstated as a full stocking distributor of [McWane] fittings.” (CX 0028 at 001; CX 

2479 (McCullough, Dep. at 153-154) (testifying that he did not know the date upon 

which the “hold” on orders from the Hajoca Lansdale branch was lifted)). 

1885.	 On April 13, 2010, Mr. Kelly reported within Hajoca that he had spoken with Mr. 

Tatman, and that “we will be moving forward with Tyler/Union in Landsdale and perhaps 

some other waterworks locations depending on how the local relationships fare.” (CX 

0030 at 001; Pitts, Tr. 3324-3325). 

1886.	 Shortly after April 13, 2010, McWane reinstated Domestic Fittings service to Hajoca’s 

Landsdale, Pennsylvania branch. (Pitts, Tr. 3325). 

1887.	 McWane did not reinstate Domestic Fittings service to Hajoca’s Tulsa, Oklahoma 

branch, the Hajoca branch that was purchasing Star’s Domestic Fittings. (CX 0030 at 

001 (“Tulsa is excluded from the deal and will not have access to Tyler Union.”); Pitts, 

Tr. 3325-3326). 

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1888.	 McWane has never told Hajoca that its Tulsa, Oklahoma branch had access to McWane’s 

Domestic Fittings. (CX 0030; Pitts, Tr. 3326). 

10.4.4 McWane Withheld Hajoca’s Domestic Fittings Rebate 

1889.	 Although McWane ultimately reinstated the individual Hajoca branches that did not buy 

Domestic Fittings from Star, Hajoca Corporate still lost its rebate on Domestic Fittings. 

(Pitts, Tr. 3320-3323). 

1890.	 Specifically, McWane withheld Hajoca’s rebate in the fourth quarter of 2009 because that 

was the quarter when Hajoca violated McWane’s Exclusive Dealing Policy. (Pitts, Tr. 

3320-3323). 

1891.	 In a February 4, 2010 email to Roy Pitts of Hajoca, Mr. Tatman confirmed that McWane 

had withheld Hajoca’s fourth quarter 2009 Domestic Fittings rebate as a result of 

Hajoca’s decision to sell Star products in Tulsa. (CX 1803 at 001; Tatman, Tr. 740; Pitts, 

Tr. 3322-3323). 

1892.	 While the amount of the Domestic Fittings rebate lost may have been relatively small 

compared to the size of the entire Hajoca corporation, Hajoca allocates rebates back to 

the branch that earns the rebate, and a rebate can be significant to an individual branch. 

(Pitts. Tr. 3323). 

10.5	 McWane’s Exclusive Dealing Policy Worked: Distributors Did Not Purchase 

Domestic Fittings from Star 

1893.	 McWane’s Exclusive Dealing Policy worked as intended by McWane: It caused 

Distributors to refuse to purchase Domestic Fittings from Star, or to purchase Domestic 

Fittings from Star only in those limited circumstances under which they believed that 

McWane would not find out about it. (Infra ¶¶ 1894-2031). 

10.5.1 McWane’s Exclusive Dealing Policy Was Viewed by Distributors as 

Presenting an Intolerable Risk That McWane Would Cut Them Off if 

They Purchased Domestic Fittings from Star 

1894.	 Distributors viewed McWane’s Exclusive Dealing Policy as presenting an intolerable risk 

that McWane would cut them off if they purchased Domestic Fittings from Star. (Infra 

¶¶ 1895-1902). 

1895.	 Distributors viewed the McWane Exclusive Dealing Policy as a threat by McWane that if 

they purchased any Domestic Fittings from Star, McWane would not sell any Domestic 

Fittings to them. (Sheley, Tr. 3411 (“The implied threat that if we bought anybody else’s 

fittings, they [McWane] wouldn’t do business with us in any way, shape or form. We 

could buy no domestic fittings at all.”); CX 2490 (Morrison, Dep. at 79-80) (“When I 

read the letter that they [McWane] sent out . . . I interpreted that as a threat.”); CX 2510 

(Groeniger, Dep. at 92) (“We were informed that they [McWane] were going to pull 

everything away from us, a threat.”); CX 2543 (Coryn, IHT at 126) (“There was . . . that 

veiled threat out there that if you – if they [McWane] found out you were buying from 

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them [Star], something would happen.”); CX 2489 (Morrison, IHT at 85) (“because of 

the letter, I mean because of the threats”)). 

1896.	 Distributors expected that McWane would cut off their access to Domestic Fittings if 

they purchased domestic fittings from Star. (CX 2516 (Sheley, Dep. at 141) (“Q. Going 

back to Star’s entry into the domestic production of fittings, what was your understanding 

of McWane’s likely response if you purchased fittings for a project from Star? . . . [A]: 

That I would lose the line. I would lose access to their product line.”); CX 2504 (Thees, 

Dep. at 31-32) (“there was some concern over reaction from McWane if we were to 

utilize Star as a domestic source”); CX 2502 (Prescott, Dep. at 114) (explaining that E.J. 

Prescott did not want to “turn up any apple carts” by purchasing Domestic Fittings from 

Star); CX 2489 (Morrison, IHT at 67) (“Well, if there was a project that Tyler Union was 

interested in and I decided to buy it from Star, that would get their attention. I mean 

they’d be very upset. That would not be good.”)). 

1897.	 Distributors were concerned about losing their rebate for Domestic Fittings from 

McWane if they purchased any Domestic Fittings from Star. (Webb, Tr. 2762-2763; CX 

2544 (Coryn, Dep. at 113) (“My big concern was loss of the rebate dollars.”); CX 2489 

(Morrison, IHT at 74) (“[Y]our rebate percentage is in the teens, so you’re talking about a 

significant amount of money that you would lose.”); CX 2546 (Gibbs, Dep. at 82) (“Q. 

Were you concerned that the WinWater local companies would lose their rebate if a 

WinWater local company purchased Star domestic fittings from Star? A. If they did it on 

an ongoing basis, yes.”)). 

1898.	 Distributors were more concerned about losing access to Domestic Fittings from 

McWane than they were about losing their rebates if they purchased any Domestic 

Fittings from Star. (Webb, Tr. 2762-2763; CX 2514 (Webb, Dep. at 93) (“[T]here’s no 

question not having access to the product is – is more penalizing than losing the rebate.”); 

Sheley, Tr. 3412 (Losing access to McWane’s Domestic Fittings was a more serious 

consequence to Illinois Meter than losing McWane’s rebates because Illinois Meter needs 

to have access to a full line of Domestic Fittings in certain locations and McWane carries 

a complete line.); CX 2489 (Morrison, IHT at 74) (“More importantly is the problems 

you’re going to have going forward in buying product from them [McWane].”); CX 2491 

(Johnson, IHT at 84) (“Well, that [the rebate] was not the significant part of the 

paragraph that concerned me. It was the rest of the paragraph [access to Domestic 

Fittings]. I mean we would have lost some money, but it wouldn’t have been significant 

compared to the consequences of the latter part of the paragraph.”)) 

1899.	 Twelve weeks is a long period of time for a Distributor, and as a practical matter 

McWane’s threat of suspending access to Domestic Fittings for 12 weeks had the same 

effect as a threat of cutting off access to Domestic Fittings altogether. (CX 2502 

(Prescott, Dep. at 121) (“Well, we took the – the – we took the 12 weeks that 12 weeks 

would wipe us out, so we took it as forever. I mean that -- that doesn’t make us right, 

but I mean 12 weeks in the season is – you would be out of business . . .”); CX 2489 

(Morrison, IHT at 75) (“Oh, that’s an eternity. To say you can’t get something for 12 

weeks, you might as well go out of business. I mean that’s – 12-week lead time would be 

devastating to a distributor.”); CX 2491 (Johnson, IHT at 25) (“Q. So following that logic 

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out, if you had to tell your customers it’s going to be 12 weeks before we can – A. We 

wouldn’t have any business.”)). 

1900.	 Distributors risk losing a project if they are unable to sell one of the required products in 

the bundle for a waterworks project. (CX 2501 (Prescott, IHT at 28)). McWane’s 

Exclusive Dealing Policy created this risk for Distributors during the ARRA period, 

because a Distributor that could not sell Domestic Fittings would not be able to win bids 

on projects funded under the ARRA. (CX 2489 (Morrison, IHT at 35-36) (“If I was not a 

distributor for Tyler Union and they’re the only person making domestic pipe fittings and 

there’s a job that requires domestic pipe fittings, the chances of me getting an order on 

that project would be remote because the contractor’s going to give the order to 

somebody that can supply him the proper fittings and he’s not going to be interested in 

buying the fittings from X and giving the rest of the business to Y.”); CX 2501 (Prescott, 

IHT at 28) (explaining that if domestic fittings were unavailable “we would have to go 

against Buy America”)). 

1901.	 Distributors also risked longer-term, and broader, damage to their relationships with 

customers, including loss of business in related product lines, if their Domestic Fittings 

supply were disrupted by McWane’s enforcement of its Exclusive Dealing Policy. (CX 

2537 (McCutcheon, IHT (Vol. 1) at 147-148) (“Q. . . . Are we just talking about sales of 

domestic fitting in these subsequent round of bidding, or am I losing the opportunity to 

sell not only fittings but ductile iron pipe and valves and hydrants and any other product 

that’s part of the typical normal bundle for a waterworks project? A. All products, the 

relationship -- it would affect the relationship for all products. Q. And did your 

distributors voice some or all of these concerns to you when they received the threats 

from McWane that we’ve been talking about? A. They did.”)). 

1902.	 Based on McWane’s Exclusive Dealing Policy, Distributors generally were not willing to 

take the risk of purchasing Domestic Fittings from Star, even if McWane had not been 

aggressively enforcing its Exclusive Dealing Policy. As Star’s Regional Sales Manager 

explained in his deposition: 

Every distributor -- every customer distributor that we talked to or 

that I talked to after this letter came out, wanted to talk about it. 

And they all wanted to know what I had seen in other parts of the 

countries or if any distributors were purchasing our domestic. And 

if so, had Tyler punished them. And -- and I had not seen 

anywhere or heard from anybody that -- that there was any 

repercussions for people buying our fittings anywhere from 

anybody. But the fear that something could happen in -- in areas 

that actually buy domestic fittings, customers are afraid. They 

don’t want to take the chance of the what-if. 

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(CX 2532 (Berry, Dep. at 144)).11 

10.5.2	 At McWane’s Urging, HD Supply Issued a Mandate Letter 

Directing Its Branches Not to Purchase Star’s Domestic Fittings 

1903.	 At McWane’s urging, HD Supply issued an internal mandate letter directing its branches 

not to purchase Star’s Domestic Fittings. (Infra ¶¶ 1904-1936). 

10.5.2.1	 McWane Requested That HD Supply Issue an Internal Letter 

Mandating Adherence to McWane’s Exclusive Dealing Policy 

1904.	 Before issuing its Exclusive Dealing Policy, McWane met with HD Supply and Ferguson 

to discuss the policy. (Tatman, Tr. 689). 

1905.	 On or about September 8, 2009, Mr. Tatman informed Mr. McCullough that Mr. Jansen 

had been discussing McWane’s “pending policy on supply exclusivity” for Domestic 

Fittings with Distributors, and that he was “starting to pick up some negative reaction 

from the HD Supply Region, District, and Branch managers.” (CX 0340; Tatman, Tr. 

689-693). 

1906.	 In light of concerns expressed by HD Supply’s Region, District, and Branch managers 

regarding McWane’s pending Exclusive Dealing Policy, Mr. Tatman suggested to Mr. 

McCullough that HD Supply’s CEO, Jerry Webb, should send an internal communication 

that HD Supply had elected to use McWane Domestic Fittings as its sole supply source 

through 2010. Mr. Tatman provided Mr. McCullough with draft language for an email to 

Mr. Webb. (CX 0340; Tatman, Tr. 693-694). 

1907.	 On September 22, 2009, Glenn Fielding, HD Supply’s Director of Sourcing and Price 

Management, sent an email to Jerry Webb, CEO, and Darrin Anderson, Vice President of 

Sourcing and Operations, forwarding the text of the McWane September 22, 2009 letter 

and recounting a conversation with Mr. Tatman in which Mr. Tatman informed him that 

the policy “must be adhered to by entire company -- if one branch buys domestic from 

11 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). Hearsay introduced 

to prove a buyer’s reason or motivation for refusing to do business with a seller is admissible 

under the “state of mind” exception to the hearsay rule set forth in Federal Rule of Evidence 

803(3). See Calahan v. A.E.V, 182 F.3d 237, 251 (3d. Cir. 1999); see Mun. Revenue Serv., Inc. 

v. Xspand, Inc., 700 F.Supp.2d 692, 705 (M.D. Pa. 2010) (hearsay regarding the buyer’s motives 

are admissible to establish that seller’s marketing strategy caused buyers not to do business with 

competitor); Discover Fin. Servs. v. Visa U.S.A. Inc., 2008 U.S. Dist. LEXIS 80801 at 4 

(S.D.N.Y. 2008) (“testimony concerning the motivation of customers for ceasing to deal with a 

business is admissible under the ‘state of mind’ exception to the hearsay rule”). This testimony 

is admissible even in instances in which the witness did not identify the declarant/customer who 

made the statement. Calahan, 182 F.3d at 252 n.1. 

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someone else it affects the whole companies program.” (CX 2173 at 001; Webb, Tr. 

2750-2753). 

1908.	 HD Supply was concerned about a reduction in rebate dollars as a result of McWane’s 

September 2009 Domestic Fittings policy. However, HD Supply was more concerned 

about the impact to customer satisfaction in the event that McWane cut off HD Supply’s 

access to its Domestic Fittings. (Webb, Tr. 2762-2763; CX 2173 at 003). 

1909.	 On the morning of September 23, 2009, Mr. Tatman sent an email to Mr. McCullough 

and Mr. Walton relaying a report he had received from Mr. Jansen. Mr. Jansen had met 

with Jack Shaller of HD Supply, who told Mr. Jansen that HD Supply had held a 

manager’s meeting “and the McWane exclusivity policy for domestic fittings was 

discussed at length,” and that “nobody from Jerry [Webb] on down was happy about it.” 

(CX 1246). Tatman noted that “I suspect Jerry [Webb] sold this as a ‘We have to do’ 

rather than a ‘In the big picture this is best for our business.’” (CX 1246; Tatman, Tr. 

696-697). 

10.5.2.2 HD Supply Issued the Requested Mandate Letter 

1910.	 On or about September 23, 2009, in response to McWane’s Exclusive Dealing Policy, 

HD Supply’s CEO, Jerry Webb, sent a letter to HD’s branch managers, district managers, 

and operations managers stating that they needed “to adhere to this mandate and purchase 

all of our American made fittings through [McWane] or Sigma.” (CX 0552 at 001; 

Webb, Tr. 2763-2765 (explaining that the “mandate” was McWane’s Exclusive Dealing 

Policy)). 

1911.	 Without McWane’s September 22, 2009 letter, Mr. Webb would not have issued his 

September 23, 2009 company-wide policy requiring HD Supply managers to only 

purchase Domestic Fittings from McWane (or Sigma). (Webb, Tr. 2804). 

1912.	 Mr. Webb’s September 23, 2009 letter to HD Supply Managers reflected HD Supply’s 

understanding of McWane’s Exclusive Dealing Policy as a “mandate” requiring HD 

Supply to purchase all of its Domestic Fittings from McWane, or risk repercussions. (CX 

0552 at 001; Webb, Tr. 2764-2765). 

1913.	 HD Supply understood McWane’s Exclusive Dealing Policy to require HD Supply to 

purchase “all” of its Domestic Fittings from McWane, except where McWane was unable 

to supply the Domestic Fittings in question. (Webb, Tr. 2768-2770 (“Q. And was this an 

all-or-nothing support? A. This was all to the extent other than the exceptions where they 

had a service or inability to fill an order.”)). 

1914.	 HD Supply also understood McWane’s Exclusive Dealing Policy to mean that if HD 

Supply purchased Domestic Fittings from Star that HD Supply “would lose the rebate on 

the domestic fittings and potentially lose access to the domestic line. . . . [I]t could be a 

significant event.”. (CX 2514 (Webb, Dep. at 90-91); Webb, Tr. 2760-2761 (“Q. How 

did you interpret this policy from Tyler/Union? A. That if their domestic line was not 

fully supported, there could be implication to your rebate and access to domestic 

fittings.”); CX 2173 at 001). 

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1915.	 McWane’s Exclusive Dealing Policy made HD Supply less willing to do business with 

any other provider of Domestic Fittings, including Star. (Webb, Tr. 2766-2768 (“This 

policy defined where we would need to get our domestic fittings from.”); CX 2514 

(Webb, Dep. at 95) (Exclusive Dealing Policy impacted HD Supply’s willingness to deal 

with Star for Domestic Fittings in September 2009); CX 2513 (Webb, IHT at 196) 

(Exclusive Dealing Policy made HD Supply less willing to do business with Star on 

Domestic Fittings)). 

1916.	 McWane’s Exclusive Dealing Policy increased the risk involved for Distributors like HD 

Supply to source Domestic Fittings from Star. (Webb, Tr. 2766-2768). 

1917.	 Because he could not risk noncompliance with ARRA Buy American requirements, Mr. 

Webb believed it was imperative to inform his district managers, branch managers, and 

operation managers of McWane’s Exclusive Dealing Policy before the October 1, 2009 

effective date of the policy. (Webb, Tr. 2765-2766; CX 0552 at 001). 

1918.	 It is unusual, and may be unprecedented, for Mr. Webb to issue a directive to the district 

managers, operations managers, and branch managers laying out a policy for all of HD 

Supply’s Waterworks Division. (CX 2514 (Webb, Dep. at 89) (“Q. How often do you 

issue these types of memos to district managers, branch managers, and operations 

managers? A. Rare.”); Webb, Tr. 2765-2766). 

1919.	 On September 26, 2009, Mr. McCullough forwarded to Mr. Page the September 23, 2009 

HD Supply internal “mandate letter” from Jerry Webb, and noted, “This is perhaps the 

first time that Jerry has given written direction on the course HDS is to pursue, which is 

pretty big.” (CX 1270; Tatman, Tr. 694-695). 

10.5.2.3 HD Supply Refused to Purchase Domestic Fittings from Star 

1920.	 As a result of McWane’s Exclusive Dealing Policy, HD Supply refused to purchase 

Domestic Fittings from Star. (Infra ¶¶ 1921-1936). 

1921.	 Up until September 22, 2009, Star was a vendor to HD Supply for both imported and 

Domestic Fittings. (CX 2539 (McCutcheon, Dep. at 247). 

1922.	 Star has developed an excellent business relationship with HD Supply through the 

personal relationships that Star’s personnel have developed both with their corporate 

officers and with HD’s second tier of purchasing agents. (CX 2537 (McCutcheon, IHT 

(Vol. 1) at 56-57); CX 2513 (Webb, IHT at 182-183) (Star is “a good company, they’re 

well run. Dan [McCutcheon]’s a – he’s a genuinely – a person of his word.”)). 

1923.	 On September 22, 2009, Star’s Southeast division manager Ramon Prado forwarded to 

Mr. McCutcheon a copy of McWane’s September 22, 2009 letter announcing the 

Exclusive Dealing Policy. Mr. Prado warned Mr. McCutcheon that he would be 

receiving a call from Mr. Webb of HD Supply. (CX 0559 at 001; McCutcheon, Tr. 

2305). 

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1924.	 After Mr. Webb issued the September 23, 2009 letter, HD Supply’s branches complied 

with the instructions in that letter, and in McWane’s Exclusive Dealing Policy. (Webb, 

Tr. 2803). 

1925.	 On September 24, 2009, Star’s Atlanta territory manager, Chuck Carrigan, forwarded to 

Mr. McCutcheon Mr. Webb’s September 23, 2009 internal HD Supply “mandate letter” 

which directed HD’s branch managers, district managers, and operations managers to 

follow the McWane policy and purchase Domestic Fittings only through McWane or 

through Sigma (which was selling Domestic Fittings made by McWane). (CX 0014; 

McCutcheon, Tr. 2306-2307). 

1926.	 After September 22, 2009, Mr. McCutcheon and Mr. Webb of HD Supply had 

conversations in which Mr. Webb informed Mr. McCutcheon that HD Supply could not 

buy Star’s Domestic Fittings, and asked Mr. McCutcheon “to not quote his branches any 

longer.” (CX 2539 (McCutcheon, Dep. at 248-249); see also McCutcheon, Tr. 2302­

230312 (Mr. Webb of HD Supply told him that because of McWane’s Exclusive Dealing 

Policy, he “was sad to report that they would not be able to purchase domestic fittings 

from our company”); see also RX-601 (McCutcheon description of cutoff by HD 

Supply)). 

1927.	 Mr. Webb of HD Supply informed Mr. McCutcheon that HD Supply could not purchase 

Domestic Fittings from Star because of McWane’s Exclusive Dealing Policy. (CX 2539 

(McCutcheon, Dep. at 248)). Mr. Webb explained to Mr. McCutcheon that HD Supply 

would buy 100% of its Domestic Fittings requirements from McWane due to McWane’s 

Exclusive Dealing Policy. (CX 2539 (McCutcheon, Dep. at 249); CX 2537 

(McCutcheon, IHT (Vol. 1) at 170, 171-172) (HD Supply informed Star that it would not 

entertain bids from Star for Domestic Fittings because of McWane’s Exclusive Dealing 

Policy)).13 

1928.	 HD Supply’s president, Mr. Webb, instructed Star not to bid on 3” through 12” Domestic 

Fittings jobs. (CX 2537 (McCutcheon, IHT at 170); see CX 2539 (McCutcheon, Dep. at 

248-249)). 

1929.	 With the exception of items that McWane did not have available or that had been 

committed to prior to September 22, 2009, HD Supply’s then-pending Domestic Fittings 

orders with Star were canceled. (McCutcheon, Tr. 2310-2311; CX 2539 (McCutcheon, 

Dep. at 248-249) (“[Webb] asked me for a list of the outstanding quotes that we had with 

his company. So we put together the list of projects that we had worked with his 

company and sent it to him. And to my knowledge, all of those were canceled.”); CX 

12 The cited trial testimony regarding the out of court statement of Mr. Webb is cited for the 

effect on Mr. McCutcheon and Star, and not to prove the truth of the matter asserted in the 

statement. (See McCutcheon, Tr. 2303). 

13 The cited testimony regarding out of court statements of Mr. Webb is cited for its effect on Mr. 

McCutcheon and Star, not to prove the truth of the matters asserted in the statements. 

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2539 (McCutcheon, Dep. at 250); see also CX 2537 (McCutcheon, IHT (Vol. 1) at 172); 

CX 0013 at 001-004)). 

1930.	 On September 28, 2009, in response to a request from Mr. Webb, Mr. McCutcheon sent 

Mr. Webb a list of orders and inquiries that HD Supply had pending with Star Pipe, 

noting that “I have instructed our people not to pursue these because of the recent 

events.” (CX 0013 at 001; McCutcheon, Tr. 2307-2309, 2311-2312). Mr. McCutcheon 

instructed his sales team not to pursue the listed items, based on his conversation with 

Mr. Webb regarding McWane’s Exclusive Dealing Policy. (McCutcheon, Tr. 2312; CX 

2539 (McCutcheon, Dep. at 250)).14 

1931.	 Two HD Supply Regional Vice Presidents (Ms. Bland and Mr. Anderson) and two HD 

Supply District or Branch Managers (Mr. Ellingsworth and Mr. Brock) each informed 

Mr. Berry that they could not purchase Domestic Fittings from Star because of 

McWane’s Exclusive Dealing Policy and that they did not have the discretion to do so 

under the HD Supply corporate policy. (CX 2532 (Berry, Dep. at 138-141) (Yvonne 

Bland is HD Supply’s Regional Vice President with responsibility over western and 

southwestern US; Deron Anderson is HD Supply’s Regional Vice President for HD 

Supply with responsibility over southeastern United States; Bruce Ellingsworth, a district 

manager, and Larry Brock, a branch manager, for HD Supply have responsibility for 

portions of Texas, including Fort Worth and Dallas)).15 

1932.	 Specifically, Mr. Anderson informed Mr. Berry that he could not purchase Domestic 

Fittings from Star for a project in Arkansas because he could not be the reason that HD 

Supply lost its rebate for purchases from McWane. (CX 2532 (Berry, Dep. at 138­

139)).16 

1933.	 HD Supply refused to purchase Domestic Fittings from Star for other projects such as the 

Hughson Modesto WWTP because of the HD Supply corporate policy. (CX 2532 

(Berry, Dep. at 170)).17 

1934.	 Star maintained and used a “Domestic Quote Log” to track won and lost Domestic 

Fittings bids. (McCutcheon, Tr. 2312; CX 2294). Pam Garey of Star compiled the log 

on a regular basis at Mr. McCutcheon’s request, and used information provided by Star’s 

sales department. (McCutcheon, Tr. 2315). 

14 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

15 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

16 The cited out of court statement should be considered for the truth of the matter asserted 

therein, as a statement of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

17 The cited out of court statement should be considered for the truth of the matter asserted 

therein, as a statement of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

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1935.
 

1936. 

1937. 

1938. 

1939. 

1940. 

1941. 

Between September 22, 2009 and February 22, 2010, Star lost at least 25 Domestic 

Fittings jobs for which it submitted a quote to HD Supply, but where HD Supply 

purchased from McWane or Sigma rather than Star because of the McWane Exclusive 

Dealing Policy. (CX 2294 at 010-011, 013, 015, 017-019 (listing 25 lost jobs for which 

the loss was expressly attributed to “HD mandate letter,” “mandate letter,” “letter 

directing fitting purchases,” “Tyler-Sigma announcement,” or “HD will not buy from 

Star”); McCutcheon, Tr. 2313 (explaining that “lost due to mandate letter” on the log 

refers to the fact that Star lost an HD order due to McWane Exclusive Dealing Policy)). 

{

 (McCutcheon, 

Tr. 2651-2652, in camera). 

10.5.3 After Receiving McWane’s Exclusive Dealing Policy, Ferguson 

Ensured Compliance with the Policy Company-Wide 

After receiving McWane’s Exclusive Dealing Policy, Ferguson sought to ensure 

company-wide compliance by Ferguson with the policy. (Infra ¶¶ 1938-1952). 

10.5.3.1 Ferguson Informed All of Its District Managers of the Policy 

Mr. Tatman emailed the September 22, 2009 letter to Mr. Doane of Ferguson early in the 

afternoon of September 22, 2009. Mr. Doane forwarded the letter on to Mr. Thees and 

others within Ferguson. (CX 0506 at 001). 

Mr. Thees’s primary concern about purchasing Domestic Fittings from Star was that Star 

was an unknown entity in the Domestic Fittings market. (Thees, Tr. 3096). 

Nevertheless, McWane’s Exclusive Dealing Policy affected Ferguson’s willingness to 

purchase Domestic Fittings from Star because purchasing from Star could cause 

Ferguson to lose rebates and access to McWane’s Domestic Fittings supply. (CX 0506; 

Thees, Tr. 3086-3089; CX 2503 (Thees, IHT at 159)). Lack of access to supply could 

keep Ferguson from being able to ship to its customers on time. (CX 0506; Thees, Tr. 

3086-3089; CX 2503 (Thees, IHT at 159)). 

Ferguson ordinarily permits its branch managers and district managers to make sourcing 

decisions for waterworks products, including Fittings. (RX-633 (Thees, Dep. 42) (“We 

allow general managers, district managers to make decisions regarding purchasing. 

Ultimately, through consensus, if it comes down to making the final decision that would 

fall to me, and that would not be over ridden.”)). At the time the Exclusive Dealing 

Policy was in place, there were Ferguson branches that had strong relationships with Star 

that would have likely purchased Domestic Fittings from Star had McWane’s Exclusive 

Dealing Policy not been in place. (CX 2503 (Thees, IHT at 162-163) (“[W]here the 

relationship was strong with a Star associate and a Ferguson branch, in all likelihood 

given they had a quality inventory position, [Star] would reap the benefits of increased 

business”)). 

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1942.	 To ensure that Ferguson complied with McWane’s policy, Mr. Thees called the district 

managers reporting to him and reiterated that they needed to support McWane’s products. 

This meant forgoing purchases of Domestic Fittings from Star. Mr. Thees expected his 

district managers to follow these instructions, and believes that they did. (Thees, Tr. 

3091-3095; CX 2504 (Thees, Dep. at 77) (“Q. After this policy was received by Ferguson 

what steps did Ferguson take to ensure compliance of this policy? A. I would have called 

the DMs and informed them that we were going to continue to support Tyler/Union with 

this process and to make sure to communicate that through the branches.”)). 

1943.	 Mr. Thees was never told by anyone from McWane that Ferguson was not in compliance 

with McWane’s Exclusive Dealing Policy. (Thees, Tr. 3113, 3117-3118). 

10.5.3.2 Ferguson Refused to Purchase Domestic Fittings from Star 

1944.	 As a result of McWane’s Exclusive Dealing Policy, Ferguson refused to purchase 

Domestic Fittings from Star. (Infra ¶¶ 1945-1952). 

1945.	 After McWane issued its September 22, 2009 letter announcing its Exclusive Dealing 

Policy, Mr. Berry had negotiations with Darryl Case and Phil Selby, who are Ferguson 

district managers, and Dan Warner, who is a Ferguson general manager, for the sale of 

Star’s Domestic Fittings to Ferguson. (CX 2532 (Berry, Dep. at 131-133)). 

1946.	 Messrs. Case, Selby and Warner each informed Mr. Berry that there was a corporate edict 

that no Ferguson employees purchase Star Domestic Fittings unless McWane did not 

have the Domestic Fitting. (CX 2532 (Berry, Dep. at 133)).18 

1947.	 Before McWane announced its Exclusive Dealing Policy, Star was awarded a job to 

supply Domestic Fittings for a project for Live Oaks WWTP. Ferguson cancelled the job 

after McWane issued its September 22, 2009, letter. (CX 2532 (Berry, Dep. at 164-65)). 

The job was cancelled after Ferguson issued its corporate policy notifying its employees 

that they should not purchase Star Domestic Fittings. (CX 2532 (Berry, Dep. at 164-165; 

CX 2288)). 

1948.	 Ferguson refused to purchase Domestic Fittings from Star for other projects, including 

the Sunol Valley project and the North South project. (CX 2532 (Berry, Dep. at 170­

171)). 

1949.	 On numerous occasions Ferguson rejected a Star bid because of McWane’s September 

22, 2009 Exclusive Dealing Policy. (CX 2294 at 017-018 (Ferguson using McWane for 

West Hartford and Horn Pond jobs because of “letter threatening to cut off if they use 

Star domestic”); CX 2294 at 013 (Schantz Spring and Oakdale Pipe projects) (“Ferguson 

will not buy domestic from Star currently”); CX 2294 at 014 (North Laredo Water 

Treatment Plant) (“Ferguson won Star loss”); CX 2294 at 012-013 (listing 16 lost Star 

18 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

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bids with the notation “All Ferguson are lost-they only get quotes from us for 

reference.”)). 

1950.	 {

 (McCutcheon, Tr. 2652, in 

camera). 

1951.	 {

 (CX 0502, in camera; 

CX 2503 (Thees, IHT at 146-147) (discussing CX 0502)). 

1952.	 Ferguson has historically increased its purchases of McWane’s Fittings (and other 

products) in order to maximize its rebate under McWane’s rebate programs. (CX 2503 

(Thees, IHT at 139-141) (“Q. Is . . . this the rebate structure that you’re pointing to as 

preferable to the programs offered by Sigma or Star? A. Yes. Q. The share tier, the 50­

percent share and 55-percent share, do those incentives shape your purchasing activity in 

any meaningful way? A. Yes. Q. Do you on occasion direct the branches to maximize 

their purchases and fittings from Tyler in order to qualify for the next their? A. Yes.”)). 

10.5.4	 After Receiving McWane’s Exclusive Dealing Policy, 

WinWholesale Put Star Domestic Fittings on Its “Not Approved” 

Vendor List 

1953.	 After receiving McWane’s Exclusive Dealing Policy, WinWholesale formally accepted 

the policy, and, as a result of the policy, put Star Domestic Fittings on its “not approved” 

vendor list, and refused to purchase Domestic Fittings from Star. (Infra ¶¶ 1954-1964). 

10.5.4.1	 Prior to McWane Issuing Its Exclusive Dealing Policy, 

WinWholesale was Interested in Purchasing Domestic Fittings 

from Star 

1954.	 On September 10, 2009, Mr. Gibbs visited Star’s Houston facility to access “how fast 

they were ramping up production, when product would be able to be shipped.” (CX 2545 

(Gibbs, IHT at 41-42) (“I wanted to see them.”)). 

1955.	 When WinWholesale made its visit in early September 2009, Win was interested in 

purchasing Domestic Fittings from Star. (CX 2545 (Gibbs, IHT at 41) (“Q. Is it fair to 

say at this point of time you were at least potentially interested in doing business with 

Star on the domestic side? A. Sure.”)). 

10.5.4.2	 WinWholesale Put Star Domestic Fittings on Its “Not 

Approved” List 

1956.	 On September 22, 2009, Mr. Gibbs received McWane’s Exclusive Dealing Policy from 

Mr. Tatman. (CX 2167 at 001). 

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1957.	 On September 24, 2009, Mr. Gibbs emailed all the WinWater local companies 

(branches), Regional Vice Presidents, Area Coordinators and Area Leaders to inform 

them that Star was placed on WinWholesale’s “Not Approved” list for Domestic Fittings 

and restraints and to explain how McWane would enforce the policy against 

WinWholesale. (CX 2166 at 001-002; CX 2546 (Gibbs, Dep. at 72)). 

1958.	 At WinWholesale, any “vendor that receives not approved status means that the local 

companies are not to buy from them under any circumstances unless they seek board 

approval.” (CX 2546 (Gibbs, Dep. at 73)). 

1959.	 Despite Star being on the “Not Approved” vendor list for Domestic Fittings, WinWater 

companies could purchase Domestic Fittings from Star “if, because of Tyler’s inability to 

perform, they have to buy domestic fittings from Star;” which is the exception in 

McWane’s Exclusive Dealing Policy. (CX 2166 at 002; CX 2167 at 002). 

1960.	 WinWholesale was concerned that if the WinWater local companies, “on an ongoing 

basis,” purchased Domestic Fittings from Star, they would lose their rebate and “be 

placed at the back of the line when [they] place [their] Tyler/Union orders.” (CX 2546 

(Gibbs, Dep. at 82-83) (“Q. Were you concerned that the WinWater local companies 

would lose their rebate if a WinWater local company purchased Star domestic fittings 

from Star? A. If they did it on an ongoing basis, yes. Q. Were you concerned about the 

lead times for Tyler/Union’s domestic ductile iron pipe fittings if a WinWater local 

company purchased domestic fittings from Star? THE WITNESS: I wasn’t concerned 

about the overall WinWater locations being able to get product from Tyler/Union, but 

there certainly was concern that if you head down that path, individual company, you 

may have – you may be placed at the back of the line when you place your Tyler/Union 

orders. I was not concerned for WinWholesale.”)). 

1961.	 On November 2, 2009, Mr. Gibbs officially accepted McWane’s Exclusive Dealing 

Policy. (CX 2167 at 001). 

1962.	 Star was verbally informed in early December 2009, and in writing on February 5, 2010, 

that WinWholesale placed Star on its “Not Approved” vendor list for Domestic Fittings 

and restraints. (CX 2166 at 001; RX-601 at 001 (McCutcheon description of cutoff by 

WinWholesale)).19 

1963.	 On April 14, 2010, Mr. Gibbs reiterated in an internal email to all WinWater local 

companies, Regional Vice Presidents, Area Coordinators and Area Leaders that Star was 

on WinWholesale’s “Not Approved” vendor list for Domestic Fittings and restraints. (CX 

2166 at 001). 

19 The cited out of court statement should be considered for the truth of the matter asserted 

therein, as a statement of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

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1964.	 After discussing the Exclusive Dealing Policy with McWane, Mr. Gibbs pointed out that, 

although the policy dealt only with Domestic Fittings, it “may be an opportunity to 

consolidate down to two ductile fitting lines on import.” (CX 2166 at 002). 

10.5.5 McWane’s Exclusive Dealing Policy Caused Groeniger to Stop 

Purchasing Domestic Fittings Directly from Star 

1965.	 Groeniger wanted to purchase Domestic Fittings from Star, and began to purchase 

Domestic Fittings from Star, but stopped as a result of McWane’s Exclusive Dealing 

Policy. (Infra ¶¶ 1966-1992). 

10.5.5.1	 Groeniger Awarded Star Domestic Fitting Business Prior to 

McWane Issuing Its Exclusive Dealing Policy 

1966.	 In 2009, prior to McWane issuing the Exclusive Dealing Policy in September 2009, 

Groeniger gave Star the Domestic Fittings business on “two sizeable projects” to “test[] 

to find out if Star could produce the domestic fittings.” (CX 2509 (Groeniger, IHT at 

110); CX 2510 (Groeniger, Dep. at 213-214) (“that happened actually before this letter 

came out, the job was bid and submitted on and organized far before this letter came 

out”)). 

1967.	 Groeniger awarded the two projects to Star for Domestic Fittings “[b]ecause they were 

more competitive.” (CX 2509 (Groeniger, IHT at 111) (“They [Star] were more 

aggressive [going] after the job.”)). 

1968.	 The two projects “were difficult jobs,” but Star performed to Groeniger’s satisfaction. 

(CX 2509 (Groeniger, IHT at 110) (“Q. The two projects that you gave Star to perform, 

did they perform it to your satisfaction? A. Yeah.”); CX 2510 (Groeniger, Dep. at 224­

225) (“Q. How did Star do in responding to the two projects that you gave to them? A. 

Excellent. Q. Did you have any issues of quality? A. No.”)). 

1969.	 Groeniger wanted to “give these guys [Star] a chance because the best thing would be for 

us [Groeniger] to have another domestic [supplier].” (CX 2509 (Groeniger, IHT at 112)). 

1970.	 Groeniger wanted another supplier of Domestic Fittings for “competitive pricing” and 

“better availability” and “better service.” (CX 2509 (Groeniger, IHT at 112) (“Q. What 

would have an alternative [domestic supplier] meant as a practical matter? A. Just say 

competitive pricing. Q. So, possibly lower pricing? A. And better availability and better 

service and Tyler has the worse service of any of them. So, you have to deal with that. 

That means you have to inventory more because you can’t rely on them getting material 

to you in time. All those things change.”)). 

10.5.5.2	 McWane Punished Groeniger for Purchasing Domestic Fittings 

from Star 

1971.	 McWane punished Groeniger for buying Domestic Fittings from Star by taking the 

unusual step of raising its prices to Groeniger mid-contract on a contract that had already 

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been awarded to Groeniger and for which Groeniger was sourcing Fittings from 

McWane. (Infra ¶¶ 1972-1977). 

1972.	 McWane found out that Groeniger gave Star the Domestic Fittings business on these two 

projects and “put us [Groeniger] through the coals for it.” (CX 2509 (Groeniger, IHT at 

110)). 

1973.	 In 2010, after Groeniger gave Star the two Domestic Fittings jobs, McWane “raised the 

price arbitrarily” with “no rhyme nor reason” on a contract with the San Jose water 

district that Groeniger had been “buying previously” from McWane. (CX 2509 

(Groeniger, IHT at 143) (“We were awarded half the contract and, suddenly, they raised 

the price.”); CX 2510 (Groeniger, Dep. at 216) (“They had a price increase sometime 

after the first of the year and they just upped our prices arbitrarily. And so we couldn’t 

up our process with the contractors and maintain a relationship with them.”)). 

1974.	 When Groeniger challenged McWane for raising the price, McWane responded, “They 

say tough. That’s the way it is.” (CX 2509 (Groeniger, IHT at 143)). 

1975.	 Groeniger was forced to buy Domestic Fittings from McWane at the higher price and sell 

them to their customer at the contract price, which resulted in Groeniger losing money. 

(CX 2510 (Groeniger, Dep. at 216) (“[W]e were buying Tyler at the higher price and 

selling it to them at the contract price, which means we were losing money.”)). 

1976.	 Throughout 2010, Groeniger worked continuously to get McWane to recognize that 

Groeniger had the contract with the San Jose Water Company. (CX 2510 (Groeniger, 

Dep. at 216-217) (“And continuously fighting with Tyler trying to get them to 

acknowledge the fact that they had quoted us on the project and having the contractor talk 

to their regional guy when he went to the contractor’s office and say we are supplying the 

contractor through Groeniger, they gave us the price and we have the annual contract 

from the district and so forth. That didn’t work.”)). 

1977.	 Groeniger had to go to the customer, San Jose Water Company, and get them to write a 

letter to McWane stating that they did in fact have the contract to supply the material 

including Domestic Fittings. (CX 2510 (Groeniger, Dep. at 217) (“So they wrote a letter 

from San Jose Water Company to McWane saying that Groeniger & Company is part of 

the San Jose contract for this year.”)). 

10.5.5.3	 Groeniger Stopped Purchasing Domestic Fittings from Star Out 

of Fear of Retaliation from McWane 

1978.	 As a result of McWane’s Exclusive Dealing Policy and its past history of enforcing such 

policies by cutting off Groeniger, Groeniger stopped purchasing Domestic Fittings from 

Star. (Infra ¶¶ 1979-1992). 

1979.	 After Groeniger awarded Star two projects, Groeniger stopped purchasing Domestic 

Fittings from Star “[b]ecause of the inherent threats of retaliation” from McWane. (CX 

2510 (Groeniger, Dep. at 207) (“Q. Have you considered purchasing more [ductile] iron 

pipe fittings from Star on the domestic side? A. Yes. Q. And did you purchase more 

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domestic [ductile] iron pipe fittings from Star? A. Probably not. Q. Why not? A. Because 

of the inherent threats of retaliation. Q. Who was threatening you? A. Tyler.”); CX 2509 

(Groeniger, IHT at 116-118) (“Q. Sir, you testified just now I asked you why you haven’t 

purchased any more domestic fittings from Star and you responded, well, because of the 

potential retribution. Do you recall that? A. Yes. Q. Did you mean because of the 

potential retribution from Tyler? A. Yes.”)). 

1980.	 Groeniger’s experience with McWane regarding the San Jose Water Company (explained 

above) and the concern that Tyler might raise the prices again adversely affected 

Groeniger’s willingness to continue purchasing domestic fittings from Star. (CX 2509 

(Groeniger, IHT at 144)). 

1981.	 Groeniger was concerned about “[b]eing shut out” from McWane if it purchased 

Domestic Fittings from Star. (CX 2509 (Groeniger, IHT at 119) (“What’s your 

understanding of the possible consequences of purchasing domestic fittings from Star in 

terms of what Tyler might do? A. Being shut out.”)). 

1982.	 McWane had previously cut-off Groeniger from access to its supply of Fittings in the 

1980s. (CX 2510 (Groeniger, Dep. at 102-104)). 

1983.	 In the 1980s, McWane “came in and said all or nothing” for Fittings. (CX 2510 

(Groeniger, Dep. at 104)). 

1984.	 Groeniger elected to not give McWane all of its Fitting business in the 80s and was 

subsequently cut-off for up to three years. (CX 2510 (Groeniger, Dep. at 106) 

(describing being cut off for a “[y]ear, two years. Maybe three.”)). 

1985.	 In 2009, Groeniger needed access to McWane Domestic Fittings in order to service 

customers with McWane-only Domestic Fitting requirements. (CX 2510 (Groeniger, 

Dep. at 214-215) (“There are one or two districts that are big . . . [that have] Tyler 

requirement, they didn’t approve Star, domestic they wouldn’t approve them. . . . So the 

realization is if we were going to be in that ballgame during that period of time when that 

was the biggest entity of anything going on in the Hayward region, and to support two of 

our major contractors in the area that were bidding work down there, we had to have 

Tyler. And Tyler knew that, it was pretty obvious.”)). 

1986.	 Mr. Groeniger refused to purchase Domestic Fittings from Star for other projects because 

he was concerned that Groeniger would lose rebates from McWane to which it was 

otherwise entitled if Groeniger did so. (CX 2532 (Berry, Dep. at 163-164; CX 2288)).20 

20 The cited out of court statement should be considered for the truth of the matter asserted 

therein, as a statement of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

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10.5.5.4	 Groeniger Still Wanted to Purchase Domestic Fittings from 

Star 

1987.	 In 2010, Groeniger would have given Star 50% of its Domestic Fittings business if 

McWane had not issued the September 2009 Exclusive Dealing Policy. (CX 2510 

(Groeniger, Dep. at 219) (“Q. So had Tyler not issued this letter in September 2009, you 

would have purchased 50 percent of your domestic fittings needs from Star? . . . THE 

WITNESS: I would think we would have. Knowing personalities involved, knowing the 

history involved and the sales people that Star had currently in effect in the Central 

Valley coming out of Sacramento who were very astute to our needs and our capabilities, 

I think so, yeah.”)). 

1988.	 Groeniger described the Exclusive Dealing Policy as “the hammer” that “could effect 

[sic] you price-wise and availability-wise” and could put Groeniger “theoretically out of 

business.” (CX 2509 (Groeniger, IHT at 142-143) (“They could tie you up so bad you 

could not function.”)). 

1989.	 After McWane issued its September 22, 2009 letter announcing its Exclusive Dealing 

Policy, Mr. Berry had at least three conversations with representatives of Groeniger, 

including Mike Groeniger, Dick Alexander and Jim Wunschel. (CX 2532 (Berry, Dep. at 

111-113)). 

1990.	 Mr. Groeniger expressed his concern to Star that if Groeniger purchased any Domestic 

Fittings from Star, McWane would cut off any sales of Domestic Fittings to Groeniger. 

(CX 2532 (Berry, Dep. at 110, 113)).21 

10.5.5.5	 Groeniger Purchased Star Domestic Fittings Indirectly Through 

Griffin Pipe 

1991.	 Mr. Groeniger expressed a preference in October 2009 for purchasing Star’s Domestic 

Fittings through Griffin Pipe Products Co. for the Walton project, rather than directly 

from Star, in order to avoid the repercussions under McWane’s Exclusive Dealing Policy. 

(CX 2532 (Berry, Dep. at 114); RX-224).22 

1992.	 In October 2009, Groeniger and Star negotiated the sale through Griffin Pipe Products 

Co. of Star Domestic Fittings for the Walton transmission project. (CX 2532 (Berry, 

Dep. at 114-115)). 

21 The cited out of court statement should be considered for the truth of the matter asserted 

therein, as a statement of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

22 The cited out of court statement should be considered for the truth of the matter asserted 

therein, as a statement of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

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10.5.6 McWane Enforced Its Exclusive Dealing Policy Against Members of 

The Distribution Group (TDG) 

1993.	 McWane sought to enforce its Exclusive Dealing Policy against TDG at the buying group 

level, causing TDG to forgo McWane rebates on Domestic Fittings. McWane ultimately 

enforced its Exclusive Dealing Policy against TDG members at the individual member 

level. (Infra ¶¶ 1994-2025). 

10.5.6.1 TDG Vendor Committee Negotiations 

1994. {

 (CX 2494 (R. Fairbanks, Dep. at 107-108), in camera; CX 1361 at 

004, 018, 034, in camera). 

1995.	 { } (CX 

2494 (R. Fairbanks, Dep. at 107-108), in camera; CX 1366 at 002 (“The following 

product categories do not carry a rebate. Domestic ductile iron waterworks Fittings.”)). 

1996.	 The TDG vendor committee “certainly wanted to have a proposal on domestic ductile 

iron fittings.” (CX 2494 (R. Fairbanks, Dep. at 107)). 

1997.	 In mid-September 2009, at the annual TDG Vendor Committee Negotiations, McWane 

explained that its new rebate program for TDG required TDG to police its members’ 

Domestic Fittings purchases to ensure that all locations for all TDG Distributors purchase 

all of their Domestic Fittings from McWane. Unless all TDG members purchased their 

Domestic Fittings solely from McWane, McWane would cut off all TDG members’ 

access to McWane’s Domestic Fittings. (Sheley, Tr. 3408-3409; see also CX 1364 at 

002 (McWane proposed Domestic Fittings rebate program)). 

1998.	 McWane wanted TDG to adhere to its Exclusive Dealing Policy as a whole and to 

commit to exclusivity on Domestic Fittings for every TDG member across the country. 

(Sheley, Tr. 3408-3409; CX 2501 (Prescott, IHT at 56); see also CX 1364 at 002 

(McWane proposed Domestic Fittings rebate program)). 

1999.	 On September 22, 2009, Mr. Tatman forwarded McWane’s “Q&A” document regarding 

its Exclusive Dealing Policy and its MDA with Sigma to Rick Fairbanks of the TDG 

Group, who forwarded it to the TDG members. (CX 1356 at 001). 

2000.	 TDG did not accept McWane’s September 2009 Domestic Fittings rebate proposal, in 

part because TDG refused to police its members’ Domestic Fittings purchases. (Sheley, 

Tr. 3409; CX 2494 (R. Fairbanks, Dep. at 114) (because McWane proposal involved 

policing of individual member companies, it “[d]idn’t fit our model”)). 

2001.	 Although the McWane Exclusive Dealing Policy was not ultimately enforced against 

TDG as a group, it has been enforced against the individual TDG members. (See infra ¶¶ 

2002-2025). 

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10.5.6.2	 Illinois Meter Refused to Purchase Star Domestic Fittings 

Because of McWane’s Exclusive Dealing Policy 

2002.	 As a result of McWane’s Exclusive Dealing Policy, Illinois Meter refused to purchase 

Domestic Fittings from Star. (Infra ¶¶ 2003-2014). 

2003.	 Mr. Jansen and Jennifer Heys of McWane informed Mr. Sheley that Illinois Meter, 

independently of TDG, is subject to McWane’s Exclusive Dealing Policy. (Sheley, Tr. 

3410-3411). 

2004.	 Mr. Tatman and Mr. Jansen told Mr. Sheley that if Illinois Meter purchased Domestic 

Fittings from anyone but McWane, it “would lose the right to buy [McWane’s Domestic 

Fittings] completely” and would also lose its Domestic Fittings rebate. Mr. Tatman and 

Mr. Jansen told Mr. Sheley this in September 2009 at a TDG meeting, and Jerry Jansen 

reiterated the message in January of 2010 at the TDG meeting in Dallas. (Sheley, Tr. 

3407-3408). 

2005.	 Mr. Jansen and Mr. Sheley had a heated conversation in January 2010 in which Mr. 

Jansen communicated to Mr. Sheley that if Illinois Meter purchased Domestic Fittings 

from anyone but McWane, Illinois Meter would lose access to McWane’s Domestic 

Fittings and would lose its rebates for Domestic Fittings. (Sheley, Tr. 3411-3412 (“There 

was no doubt in my mind they were serious.”)). McWane did not limit the threatened 

loss of access to Domestic Fittings to any time period. (Sheley, Tr. 3412-3413). 

2006.	 Losing access to McWane’s Domestic Fittings was a more serious consequence to Illinois 

Meter than losing McWane’s rebates because Illinois Meter needs to have access to a full 

line of Domestic Fittings in certain locations and McWane carries a complete line. 

(Sheley, Tr. 3412). 

2007.	 Illinois Meter purchases Domestic Fittings from McWane only. (Sheley, Tr. 3406). 

2008.	 Illinois Meter has been unwilling to stock or ship Star’s Domestic Fittings because it does 

not want to lose the ability to buy McWane’s Domestic Fittings. (Sheley, Tr. 3407). 

2009.	 Specifically, McWane’s Exclusive Dealing Policy made Illinois Meter less willing to 

purchase Domestic Fittings from Star because Star could not supply Illinois Meter a 

complete line, and Illinois Meter was not willing to risk coming up short on a project 

because it did business with Star. (Sheley, Tr. 3413). 

2010.	 Illinois Meter has a very good relationship with Star, and would have liked to have given 

them Domestic Fittings business. (Sheley, Tr. 3414). For example, Illinois Meter was 

interested in purchasing Domestic Fittings from Star for an ARRA-funded water 

treatment plant in Winchester, Illinois, and for a Domestic specification job in Macomb, 

Illinois. Both projects required smaller-diameter Domestic Fittings that Illinois Meter 

believed Star could provide. (Sheley, Tr. 3417-3418). 

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2011. {

 (CX 2537 (McCutcheon, IHT (Vol. 

1) at 163), in camera)). 

2012.	 Mr. Sheley believes that McWane’s Exclusive Dealing Policy remains in place as to 

Illinois Meter. As a result, Illinois Meter still does not purchase Star Domestic Fittings 

for customer projects, despite their very good quality. (Sheley, Tr. 3419-3420 (“We’re 

not buying any of them to speak of. We bought a few to look at them, but we are not 

buying them and supplying them on projects.”)). 

2013. {

 (Sheley, Tr. 3433-3434, in camera).

 (Sheley, Tr. 3434, in camera). 

{

 (Sheley, Tr. 3434, in camera). 

2014. { 

(Sheley, 

Tr. 3434-3435, in camera { 

10.5.6.3	 Other TDG Distributor Members Wanted to Purchase 

Domestic Fittings from Star but Did Not Because of 

McWane’s Exclusive Dealing Policy 

2015.	 But for McWane’s Exclusive Dealing Policy, C.I. Thornburg would have purchased 

Domestic Fittings from Star during the entire 2010 calendar year. (CX 2489 (Morrison, 

IHT at 87) (“Oh, I’d say all of 2010.”)). 

2016.	 In 2010, C.I. Thornburg purchased 95-98% of its Domestic Fittings from Tyler Union or 

Sigma, which sold Tyler Union Domestic Fittings. (CX 2489 (Morrison, IHT at 64) 

(“When I say Tyler Union, either through SIGMA or through Tyler Union.”)). 

2017.	 In 2010, C.I. Thornburg sold $339,781.80 in Domestic Fittings. (RX-650 (Morrison, 

Dep. at 37)). C.I. Thornburg started purchasing Star domestic fittings in 2010 “towards 

the end of the year.” (CX 2489 (Morrison, IHT at 66)). 

2018.	 C.I. Thornburg would have been interested in purchasing A item Fittings from Star and 

then purchasing odd ball Fittings from Tyler. (CX 2489 (Morrison, IHT at 83-84) (“Q. 

Would you have been interested in purchasing the A item fittings that Star might have 

23 The cited testimony regarding out of court statements of the Illinois Meter is cited for its effect 

on Mr. McCutcheon and Star, not to prove the truth of the matters asserted in the statements. 

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had during this time period and then purchasing your B through D items or your oddball 

fittings from Tyler as necessary? A. Oh, without question.”)). 

2019.	 C.I. Thornburg would have given a third to a half of all its domestic business to Star but 

for the McWane Exclusive Dealing policy. (CX 2489 (Morrison, IHT at 85-86) (“Q. Any 

idea of how much business you would have given to Star in that world we’re describing, 

the world where the threat’s not in effect? . . . A. Oh, a third, easily, maybe half, but you 

would certainly start giving them [Star] some business for sure.”)). 

2020.	 After McWane issued its Exclusive Dealing Policy, Mr. Berry had negotiations with Jim 

McDowell, a sales manager and now part owner of Western Waterworks, for the sale of 

Star’s Domestic Fittings to Western Waterworks. (CX 2532 (Berry, Dep. at 121-122)). 

2021.	 Due to McWane’s Exclusive Dealing Policy, Mr. McDowell informed Mr. Berry in the 

course of their negotiations that Western Waterworks was willing to purchase Domestic 

Fittings from Star only if the transaction could “fly under the radar,” i.e., that McWane 

would not find out about the sales. (CX 0011; CX 2532 (Berry, Dep. at 124); CX 2537 

(McCutcheon, IHT (Vol. 1) at 142)).24 

2022.	 In January 2010, after McWane announced its Exclusive Dealing Policy, Mr. Berry had 

negotiations with Todd Fowler, Brian Nelson, and David Kirker of the Distributor HD 

Fowler Company (a member of the TDG group), for the sale of Star’s imported and 

Domestic Fittings to HD Fowler. (CX 2532 (Berry, Dep. at 134)). 

2023.	 Mr. Fowler, Mr. Nelson, and Mr. Kirker informed Mr. Berry that their company would 

not allow them to purchase Star’s Domestic Fittings because they were afraid that 

McWane would not sell Domestic Fittings to HD Fowler if it purchased Domestic 

Fittings from Star. (CX 2532 (Berry, Dep. at 134)).25 

2024.	 Star submitted bids for Domestic Fittings to HD Fowler for a project called “Shelton 

WWTP.” HD Fowler purchased large Domestic Fittings from Star for this project 

because, at the time, Star could deliver the product more quickly than McWane. (CX 

2532 (Berry, Dep. at 168)). However, for the same project, HD Fowler was unable to 

purchase smaller Domestic Fittings from Star because McWane had supply of the 

product. (CX 2532 (Berry, Dep. at 167-169 (also testifying that HD Fowler did not 

purchase Domestic Fittings from Star for its Coeur d’Alene, Idaho WWTP project; its 

Pendleton, Oregon WWTP project, or its HD Valley-Brownsville project); CX 2288)).26 

24 The cited out of court statement should be considered for the truth of the matter asserted 

therein, as a statement of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

25 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

26 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

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2025.
 

2026. 

2027. 

2028. 

2029. 

2030.
 

{

 (CX 

2537 (McCutcheon, IHT (Vol. 1) at 163), in camera). 

10.5.7	 Customers Purchased Domestic Fittings from Star in Limited 

Circumstances where McWane’s Exclusive Dealing Policy Did Not 

Pose a Threat 

Many of Star’s Domestic Fittings sales were minor purchases, orders that McWane itself 

was unable to fill, or purchases that occurred after the customer learned of the FTC’s 

investigation in this matter, or other limited circumstances when McWane’s Exclusive 

Dealing Policy did not pose a threat. (Infra ¶¶ 2027-2031). 

Some Distributors only purchased domestic fittings from Star “under the radar,” or in 

other words, without McWane knowing.(McCutcheon, Tr. 2668-2669); CX 2489 

(Morrison, IHT at 67) (“Now, what we’ve bought from Star has been under the radar. 

When I say under the radar, just nothing that it would get anybody’s attention. I don’t 

mean it was sneaky or was, you know, hidden from them [Tyler Union]. It was so minor 

that nobody would care because it wasn’t a project or something that was going on that 

Tyler Union was looking at or aware of or anything else.”); (CX 2516 (Sheley, Dep. at 

63) (“Q. Do you purchase any domestic fittings from Star? A. We haven’t until – in the 

last 12 months we bought a few. I think that’s in that deposition also. We bought a few 

to see what they looked like. Q. Have you bought any for jobs? A. No.”); see also 

¶ 1888). 

Some Distributors were willing to purchase Domestic Fittings from Star once they 

learned of the FTC’s investigation into McWane’s Exclusive Dealing Policy. (CX 2489 

(Morrison, IHT at 78, 79) (“Q. So you think that right now the prospect of FTC scrutiny 

might be keeping Tyler from retaliating against distributors that purchase from Star? A. 

Yes.”)). 

U.S. Pipe was also willing to purchase Domestic Fittings from Star once it learned of the 

FTC’s investigation. (Morton, Tr. 2857-2858 (after FTC investigation opened U.S. Pipe 

decided that, if it bought Domestic Fittings from Star, the risk that McWane would stop 

Domestic Fittings sales to U.S. Pipe was “significantly less”); CX 2542 (Morton, Dep. at 

154-155) (“Q. And why are you not concerned today? A. We believe, I believe, that they 

would not follow through on the -- I don’t want to use the word threat, on the message 

that Rick Tatman gave me back in 2009 as a result of all of the publicity and this 

investigation. I mean, so we felt that the threat of – the risk of not being able to get 

fittings, which you told you before was not my priority, was not an issue. Q. And when 

you say this investigation, do you mean the FTC’s investigation of McWane? A. That’s 

right.”)). 

Some of Star’s actual sales of Domestic Fittings were made in circumstances in which 

McWane could not provide Domestic Fittings in a timely fashion (e.g., large-diameter 

Fittings), or where the End User needed a special coating such as “Protecto 401” that Star 

specialized in. (McCutcheon, Tr. 2666-2667). 

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2031.	 Star made a significant number of sales of Domestic Fittings to the Distributor Ramsco. 

After those sales, Ramsco was acquired by HD Supply. Those sales therefore appear in 

Star’s records as sales to HD Supply even though they were made to Ramsco, not HD 

Supply. (McCutcheon, Tr. 2669-2670). 

10.6	 McWane Employed Its Exclusive Dealing Policy to Prevent U.S. Pipe from 

Purchasing Domestic Fittings from Star 

2032.	 McWane enforced its Exclusive Dealing Policy with respect to U.S. Pipe, and as a result 

of McWane’s policy, U.S. Pipe refused to purchase Domestic Fittings from Star. (Infra 

¶¶ 2033-2063). 

10.6.1 U.S. Pipe Purchased and Re-sold Sigma, Star, and McWane Fittings 

2033.	 U.S. Pipe manufactured its own Domestic Fittings for sale in its waterworks systems 

packages until 2006, and has since purchased and resold Sigma’s, Star’s, and McWane’s 

Fittings. (Supra § 3.4.8.1; infra ¶¶ 2034-2039). 

2034.	 U.S. Pipe sells Fittings as part of its package sales of pipes and Fittings. (Supra ¶ 222) 

2035.	 After U.S. Pipe stopped manufacturing Fittings in April 2006, Sigma was U.S. Pipe’s 

main supplier of non-Domestic Fittings, and Star was its secondary source. (Morton, Tr. 

2819). 

2036.	 Today, Star and Sigma continue to be U.S. Pipe’s source for non-Domestic Fittings, but 

Star is now the primary supplier and Sigma is the secondary supplier. (Morton, Tr. 2819­

2820). 

2037.	 After U.S. Pipe stopped manufacturing Fittings in April 2006, U.S. Pipe’s sole source for 

Domestic Fittings (and the only supplier of Domestic Fittings) was McWane. (Morton, 

Tr. 2810). 

2038.	 U.S. Pipe now also buys Domestic Fittings from Star. (Morton, Tr. 2820). 

2039.	 U.S. Pipe never had a Fittings rebate program in place with McWane. (Morton, Tr. 2849, 

2862). 

10.6.2 U.S. Pipe Pursued the Purchase of Domestic Fittings from Star and 

Star Offered Competitive Prices 

2040.	 When Star entered the Domestic Fittings market, U.S. Pipe pursued the purchase of 

Domestic Fittings from Star, and Star offered competitive prices. (Infra ¶¶ 2041-2049). 

2041.	 Following the passage of ARRA, U.S. Pipe needed to ensure that it had sources for 

Domestic Fittings. (Morton, Tr. 2826). 

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2042.	 U.S. Pipe believed that it would benefit from having more than one supplier for Domestic 

Fittings because it wanted to, among other reasons, ensure supply and enjoy the benefits 

of competition. (Morton, Tr. 2826-2827). 

2043.	 U.S. Pipe therefore began investigating small and medium Domestic Fittings sources 

other than McWane in early 2009. (Morton, Tr. 2825). 

2044.	 U.S. Pipe initially considered manufacturing its own Domestic Fittings in response to 

ARRA. The main reason that U.S. Pipe stopped investigating that option was that Sigma 

contacted it in June of 2009 and committed to produce Domestic Fittings. (Morton, Tr. 

2876-2877). 

2045.	 In early September 2009, U.S. Pipe and Star discussed the potential purchase by U.S. 

Pipe of Domestic Fittings from Star. (Morton, Tr. 2834-2835; CX 2215 at 001). 

2046.	 On September 3, 2009, Mr. McCutcheon sent an email to Mr. Morton and others at U.S. 

Pipe, thanking them for meeting the day before, and setting forth a schedule for the 

availability of Star’s Domestic Fittings. (CX 2215 at 002-003; see also RX-207 (same 

schedule as sent to Ferguson in more legible form)). 

2047.	 On September 15, 2009, Mr. Morton wrote an email to Susan Schepps of Star’s sales 

group stating, “We are definitely interested in pursuing the purchasing of our domestic 

requirements from Star and are looking forward to receiving the list of configurations that 

will be available.” (Morton, Tr. 2834-2835). 

2048.	 On September 28, 2009, Mr. Morton met with Ms. Schepps in Birmingham, Alabama 

regarding U.S. Pipe’s interest in purchasing Domestic Fittings from Star. (Morton, Tr. 

2835-2837; CX 1936 at 001). Ms. Schepps provided a detailed list of Domestic Fittings 

products that Star was committed to having available by the end of 2009. (Morton, Tr. 

2835-2837; CX 1936 at 001, 002). 

2049.	 Star initially proposed to U.S. Pipe pricing for 3” to 12” Domestic Fittings that matched 

McWane’s Domestic Fittings multipliers. In response to U.S. Pipe’s statement that Star 

needed to incentivize U.S. Pipe to leave McWane, Ms. Schepps further committed to 

U.S. Pipe that Star would offer Domestic Fittings pricing significantly below McWane’s 

in exchange for a major portion of U.S. Pipe’s volume. (CX 1936 at 001; Morton, Tr. 

2837-2838). 

10.6.3 Mr. Tatman Conveyed McWane’s Exclusive Dealing Policy to U.S. 

Pipe as a Strict, All-or-Nothing Policy 

2050.	 Mr. Tatman conveyed McWane’s Exclusive Dealing Policy to U.S. Pipe as a strict, allor-nothing policy under which U.S. Pipe risked losing all access to McWane’s Domestic 

Fittings. (Infra ¶¶ 2051-2056). 

2051.	 After U.S. Pipe received a copy of McWane’s September 22, 2009 Exclusive Dealing 

Policy, Stephen Gables of U.S. Pipe’s sales group forwarded the letter to Mr. Crawford, 

Mr. Morton, and U.S. Pipe’s president Ray Torok noting as follows: 

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There was a lot of buzz last week about [McWane] preparing to 

“cut off” certain wholesale distributors if they were found to have 

purchased any STAR domestic product. These letters make that 

buzz more like the sound of a 757. 

(CX 2205 at 001; Morton, Tr. 2849). 

2052.	 On October 13, 2009, Mr. Morton met with Mr. Tatman in Birmingham, Alabama 

regarding McWane’s Exclusive Dealing Policy. (Morton, Tr. 2840-2844). 

2053.	 Mr. Tatman told Mr. Morton that McWane expected U.S. Pipe to purchase all of its 

Domestic Fittings needs from McWane, not from Star. (CX 2203 at 002 (Morton 

meeting notes indicating “Tatman - expect customers including USP to be loyal and 

purchase 100 percent of their requirements from [McWane]”); Morton, Tr. 2844-2845). 

2054.	 Mr. Tatman told Mr. Morton that U.S. Pipe would be required going forward to purchase 

100% of its Domestic Fittings requirements from McWane. U.S. Pipe could not “cherry 

pick” A- or B-items, or high volume Domestic Fittings from Star and expect McWane to 

supply the balance. (CX 2203 at 002; Morton, Tr. 2845-2846). 

2055.	 Mr. Tatman warned Mr. Morton that if U.S. Pipe were to purchase any Domestic Fittings 

from Star, it should not expect McWane to sell any Domestic Fittings to U.S. Pipe. (CX 

2203 at 002). 

2056.	 Under its MDA with Sigma, McWane had also forbidden Sigma from selling even 

McWane branded Domestic Fittings to U.S. Pipe. (See infra § 11.8.5). 

10.6.4 U.S. Pipe Declined to Purchase Domestic Fittings from Star Because 

of McWane’s Exclusive Dealing Policy 

2057.	 Because U.S. Pipe needed access to a full line of Domestic Fittings, not just the “A” and 

“B” items initially being offered by Star, McWane’s Exclusive Dealing Policy prevented 

U.S. Pipe from buying any Domestic Fittings from Star. (Morton, Tr. 2846, 2848). 

2058.	 In response to McWane’s Exclusive Dealing Policy as communicated by Mr. Tatman, 

Mr. Morton recommended to his boss, Mr. Torok, that U.S. Pipe continue purchasing 

100% of its Domestic Fittings from McWane unless U.S. Pipe identified a source that 

could supply U.S. Pipe all of its Domestic Fittings instead. (Morton, Tr. 2848 (“In order 

to sell pipe, you have to have access to all types of fittings that are used in systems, and if 

you didn’t have the capability to buy all of your requirements, then you couldn’t compete 

and bid on projects for many systems.”)). 

2059.	 U.S. Pipe complied with McWane’s Excusive Dealing Policy, and Mr. Morton instructed 

his purchasing manager not to purchase Domestic Fittings from Star unless McWane 

could not provide the needed Domestic Fittings. (Morton, Tr. 2915-2916 (“My 

instructions to my purchasing manager were to only purchase if Union-Tyler couldn’t 

provide, so if we were buying a very minor number of fittings from January of 2010 

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through September when we really did make a change, it was as a result of one of those 

exceptions where we couldn’t receive product.”)). 

2060.	 On November 12 or 13, 2009, Mr. Morton and Stephen Gables of U.S. Pipe met with Mr. 

McCutcheon and Ms. Schepps of Star. At that meeting, U.S. Pipe conveyed to Star the 

message from McWane that if U.S. Pipe purchased any of its Domestic Fittings 

requirements from anyone other than McWane, then McWane would not sell U.S. Pipe 

any Domestic Fittings. (CX 2217 at 002; Morton, Tr. 2853-2854; see also RX-601 

(McCutcheon description of cutoff by U.S. Pipe)).27 

2061.	 U.S. Pipe further conveyed to Star that “We must have 100% confidence in Star’s ability 

to deliver all of our domestic requirements” before moving away from McWane. (CX 

2217 at 002; Morton, Tr. 2854-2855). 

2062.	 With the exception of minor purchases falling within the limited exceptions to McWane’s 

Exclusive Dealing Policy (e.g., where McWane’s lead time to supply the requested 

Fitting was too long, or if McWane didn’t make a particular Fitting configuration), U.S. 

Pipe did not purchase significant amounts of Domestic Fittings from Star until September 

of 2010. (Morton, Tr. 2856-2858, 2859). 

2063.	 In September 2010, U.S. Pipe became willing to purchase Domestic Fittings from Star 

because it believed the FTC investigation significantly reduced the risk of McWane 

refusing to sell it Domestic Fittings under the Exclusive Dealing Policy. (Morton, Tr. 

2856-2858; CX 2210 at 001 (“We also believe that with the current FTC investigation 

that it is unlikely that McWane will deny selling domestic fittings to USP.”)). 

10.7	 McWane Never Publicly Withdrew Its Exclusive Dealing Policy 

2064.	 McWane never modified the Exclusive Dealing Policy by any subsequent letter. 

(Tatman, Tr. 707, 709 (asserting that the program was modified after Sept. 22, 2009, but 

that he never sent out a letter to his customers to the effect that “[t]he policy we 

announced on September 22, 2009 is no longer in effect.”); infra ¶¶ 2065-2067). 

2065.	 Distributors and others in the market are not aware of McWane ever rescinding its 

Exclusive Dealing Policy. (Sheley, Tr. 3419 (“Q. Does this policy still have an effect on 

your willingness to deal with Star for domestic fittings today? A. Yes, it does. Q. And 

what effect is that? A. We’re not buying any of them [Star Domestic Fittings] to speak of. 

We bought a few to look at them, but we are not buying them and supplying them on 

projects.”); Morton, Tr. 2908-2909, 2911 (No one from McWane communicated to U.S. 

Pipe any revisions to the Exclusive Dealing Policy); Thees, Tr. 3118 (As far as Mr. Thees 

of Ferguson is aware, McWane never rescinded the Exclusive Dealing Policy or indicated 

that it was no longer in force); Pitts, Tr. 3364-3365 (As far as Mr. Pitts of Hajoca is 

aware, McWane never withdrew the Exclusive Dealing Policy)). 

27 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

308 
 

 

 

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2066.	 McWane was still actively enforcing its Exclusive Dealing Policy in July 2010. For 

example, Mr. Jansen warned the president of the third largest waterworks Distributor, 

WinWholesale, that one of its branches had purchased a “small order of Domestic from 

Star that was quoted last fall,” so that WinWholesale could “avoid a situation.” (CX 

1603; CX 2477 (Jansen, Dep. at 189-191) (testifying that he was unaware of any 

WinWholesale branches buying any Domestic Fittings after that warning)). 

2067.	 McWane continues to have a form of its Exclusive Dealing Policy in place with respect 

to HD Supply today, whereby HD Supply could lose the benefit of McWane’s Domestic 

Fittings rebate program if it fails to fully support McWane’s Domestic line of Fittings. 

(CX 2514 (Webb, Dep. at 100) (describing policy as of May 2012); Webb, Tr. 2770 

(Webb believes a similar policy remains in place); see also CX 2193 (July 2010 internal 

McWane email from Mr. Jansen to Mr. Napoli that a Distributor would lose their 

“backside program” or no rebates if it purchased Domestic Fittings from Star); CX 2480 

(Napoli, Dep. at 101-103); CX 2479 (McCullough, Dep. at 173-174) (“Backside pricing” 

generally refers to providing discounts with a rebate, although it may sometimes refer to 

extending payment terms)). 

10.8 Was Deterred by McWane’s Exclusive Dealing Policy from Entering the 

Domestic Fittings Market 

2068. considered entering the Domestic Fittings market in 2009, but decided not to enter 

because of McWane’s Exclusive Dealing Policy. (Infra ¶¶ 2069-2088). 

10.8.1 Considered Entering the Domestic Market in 2009 

2069.	 { 

2070.	 { 

2071.	 { 

10.8.1.1 Discussed Its Domestic Entry with Customers 

2072.	 { 

2073. Customers, including HD Supply, informed that they wanted another source of 

Domestic Fittings, because McWane was currently the only source, and it was better to 

have multiple choices. 

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2074. { 

2075. { 

10.8.1.2 Identified a Cost-Effective Domestic Foundry to Produce 

Domestic Fittings for 

2076. 

2077. 

{ 

{ 

2078. 

2079. 

{ 

{ 

10.8.1.3 Had Sufficient Capital to Finance Domestic Entry 

2080. 

2081. 

2082. 

2083. 

{ 

{ 

{ 

{ 

10.8.1.4 Had Patterns Available for Domestic Fittings 

Manufacturing 

310 
 

 

 

 

 

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10.8.2	 { } Because of 

McWane’s Exclusive Dealing Policy 

2084.	 Because McWane announced its Exclusive Dealing Policy in late September 2009, 

in camera; infra ¶¶ 2085-2088). 

2085.	 { 

2086.	 { 

2087.	 McWane’s Exclusive Dealing Policy meant that { 

2088.	 While it was not the only reason, McWane’s Exclusive Dealing Policy was a decisive 

reason why { 

} 

10.9	 McWane’s Exclusive Dealing Policy Had an Immediate Negative Impact on 

Star’s Business in the Market for Domestic Fittings 

2089.	 McWane’s Exclusive Dealing Policy had an immediate negative impact on Star’s 

business in the market for Domestic Fittings. (McCutcheon, Tr. 2303; infra ¶¶ 2090­

2166). 

2090.	 {

 (CX 2535 

311 
 

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(Bhutada, Dep. at 84-85), in camera; see also supra ¶¶ 1893-2067 { 

}

28 

10.9.1 Star’s Domestic Fittings Business Lost Sales and Was Unprofitable 

Due to McWane’s Exclusive Dealing Policy 

10.9.1.1	 Star’s Domestic Fittings Business Lost Sales Due to McWane’s 

Exclusive Dealing Policy 

2091.	 McWane’s Exclusive Dealing Policy caused Distributors to refuse to purchase Domestic 

Fittings from Star, or to purchase Domestic Fittings from Star only in those limited 

circumstances under which they believed that McWane would not find out about it. (See 

supra § 10.5, infra ¶¶ 2092-2100). 

2092.	 McWane’s Exclusive Dealing Policy presented Distributors who wanted to buy Domestic 

Fittings from Star with an all-or-nothing decision, whereby purchasing any Domestic 

Fittings from Star would risk potentially disastrous retaliation by McWane. (See supra 

§ 10.5.1 (describing risks to Distributors presented by McWane’s Exclusive Dealing 

Policy)). 

2093.	 Distributors wanted to purchase Domestic Fittings from Star. (CX 2489 (Morrison, IHT 

at 85) (“I know the Star folks very well, I want to support them, glad to see them in the 

domestic business, let me give you some orders, and what you can’t supply I’ll go get 

from Tyler Union. Yeah, I would have loved to have just not had anything floating 

around in the background about what might happen if I do that.”); CX 2489 (Morrison, 

IHT at 84) (“If there wasn’t a concern, whether it be from the letter or whatever other 

method of communication you want to talk about, if it was just a completely free market, 

buy whatever you want to, we’re happy to sell you anything, you know, we’re here to 

service you, and you could go give this order to Star and I’m going to have some 

advantage, whether it’s a rebate from Star, a point or two price difference, whatever the 

case may be, just another option, but knowing that if they don’t have something I’m 

going to turn around and buy it from Tyler Union and they’re just going to be happy to 

sell it to me, sure, I mean there’s no question you would have split the business.”); CX 

2501 (Prescott, IHT at 47) (“Q. Were you interested in purchasing domestic fittings from 

Star? A. Oh, yeah, if everything was on level playing field, we were, sure, because we 

buy stuff from Star. . . . Q. When you say everything on a level playing field, what do 

you mean by that, sir? A. Well, because originally if you bought one fitting from anybody 

else, you would lose the -- you know, that’s in writing, so I didn’t do that. Q. This is a 

policy of McWane that you’re describing? A. Yes.”)). 

2094. {

 (Bhargava, Tr. 2965-2969, in camera { 

28 The cited out of court statements should be considered for the truth of the matters asserted 

therein, as statements of motive, intent, or plan under Fed. R. Evid. 803(3). See supra n.11. 

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2095.	 Despite their relationships with Star, the quality of Star’s Domestic Fittings, and Star’s 

expertise and service (see supra ¶¶ 1666-1668, 1758-1765), Distributors could not risk 

being cut off by McWane and having to purchase all of their needs from the new entrant 

with an untested supply chain and an incomplete product line. (RX-704 (Gibbs, IHT at 

72) (Star was an unproven domestic supplier and did not have adequate breadth of line); 

CX 2491 (Johnson, IHT at 62) (Star needed to prove itself before Dana Kepner would 

move all of its business to Star); RX-662 (Thees, IHT at 154, 171-173) (describing risks 

of giving all of Ferguson’s business to Star, including the need for breadth and depth of 

inventory); CX 2501 (Prescott, IHT at 86-87) (McWane’s policy increased the risk [of 

purchasing Domestic Fittings from Star] from a Distributor’s perspective)). 

2096.	 Star has been unable to compensate Distributors for the open-ended risk of buying 

Domestic Fittings from Star created by McWane’s Exclusive Dealing Policy. (CX 2513 

(Webb, IHT at 204-205) (“not enough money . . . that could be offered” to compensate 

HD Supply for assuming risk of dealing with Star under the terms of McWane’s 

Exclusive Dealing policy); CX 2515 (Sheley, IHT at 93-94) (“Q. [W]here’s the price tag 

to compensate you for that risk? A. Half a million.”); CX 2491 (Johnson, IHT at 66-67) 

(“Q. [I]s there any way that Star could have compensated you for taking that risk on 

before July of 2010? A. I don’t think so. I mean you can have all the guaranties from a 

money standpoint, but you’re still not servicing your customer. And the long-term fallout 

form that could have been much more than a million dollars.”); see also CX 2534 

(Bhutada IHT at 73-74); CX 2537 (McCutcheon, IHT (Vol. 1) at 196) (Star’s cost 

structure would not allow it to cut prices further); CX 2537 (McCutcheon, IHT (Vol. 1) at 

156-157) (Star could not compensate a Distributor for purchasing any Domestic Fittings 

from Star by charging the Distributor a lower price, because a Distributor would not 

accept the risk of losing access to any supply from McWane)). 

2097.	 Even where Star was in a position to supply Domestic Fittings for an entire project, 

McWane’s Exclusive Dealing Policy impacted Distributors’ decisions to purchase 

Domestic Fittings from Star. (CX 2489 (Morrison, IHT at 76) (“I’m positive that it 

[McWane’s Exclusive Dealing Policy] influenced our decision-making as time went 

along in 2010.”); CX 2489 (Morrison, IHT at 84-85) (“The first half of the year we didn’t 

have to make the decision -- well, we made our decisions based on the fact that we knew 

this was the case, you know, the letter was the threat.”)). 

2098.	 But for McWane’s Exclusive Dealing Policy, Distributors, including two of the largest 

national chains and many of Star’s largest imported Fittings customers, would have 

purchased more Domestic Fittings from Star. (See supra ¶¶ 1904-2063 (describing Star 

loss of sales as a result of Exclusive Dealing Policy); Bhargava, Tr. 2975, in camera 

( 

); CX 2513 

(Webb, IHT at 198-199) (HD Supply would probably purchase more from Star); CX 

2515 (Sheley, IHT at 96-97, 142) (Distributor would shift the majority of its business to 

313 
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Star); Thees, IHT at 160, 162-163 (Ferguson would allow local branches discretion to 

buy domestic from Star, and some of those local branches would likely have made 

purchases); CX 2545 (Gibbs, IHT at 55-57) (same, for WinWholesale); CX 2509 

(Groeniger, IHT at 116-117, 118) (Testifying that Groeniger did not purchase more 

fittings from Star because of the “retribution policy” from Tyler); CX 2501 (Prescott, 

IHT at 54-60) (If not for the distribution policy, EJP was interested in purchasing A items 

from both Star and McWane); CX 2491 (Johnson, IHT at 57-59) (In a world with the 

Tyler distribution policy, “[W]e would have only bought the Tyler products if Star didn’t 

have them.”); see also supra ¶¶ 2032-2063 (describing Star’s loss of sales to U.S. Pipe as 

a result of Exclusive Dealing Policy)). 

2099. If Star had been free to win business from the major national Distributors, these accounts 

would have offered Star a quick and efficient way to win large volumes of business as 

well as a measure of commercial validation. (CX 2534 (Bhutada, IHT at 18, 27-29); CX 

2537 (McCutcheon, IHT (Vol. 1) at 50-53); CX 2483 (Tatman, IHT at 242-244)). 

2100.	 Star’s sales force believed that McWane’s Exclusive Dealing Policy would completely 

shut Star out of the Domestic Fittings market. (McCutcheon, Tr. 2607 (“[T]hey thought 

at the time that . . . we would be completely foreclosed from domestic fittings.”)). 

10.9.1.2	 Star Failed to Meet Its Domestic Fittings Sales Targets and Its 

Domestic Fittings Business Was Unprofitable 

2101. As a result of McWane’s Exclusive Dealing Policy, Star failed to meet its Domestic 

Fittings sales targets and Star’s Domestic Fittings business was unprofitable. (Infra 

¶¶ 2102-2108). 

2102. {

 (CX 2537 (McCutcheon, IHT (Vol. 1) at 110), in camera; CX 2535 

(Bhutada, Dep. at 79), in camera { }; McCutcheon, Tr. 2351, in 

camera { } 

2103. {

 (CX 2535 (Bhutada, Dep. at 79), in camera). 

(CX 2535 (Bhutada, Dep. at 80, 87), in camera). 

2104.	 { } (CX 

1801-A at 002, in camera; CX 2535 (Bhutada, Dep. at 68), in camera; (RX-698 

(McCutcheon, Dep. at 136)). 

2105.	 { } (CX 

1801-A at 003, in camera; CX 2535 (Bhutada, Dep. at 68), in camera; (McCutcheon, Tr. 

2351, in camera; (RX-698 (McCutcheon, Dep. at 137)). 

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2106.	 {

 (CX 1801-A at 004, in camera; CX 2535 (Bhutada, Dep. at 68-69), in 

camera). 

2107. { 

(Bhargava, Tr. 2970-1972, in camera 

002, in camera { 

}; CX 1801-A at 003, in camera 

; CX 1801-A at 

2108. {

 (McCutcheon, Tr. 2653, in 

camera; see also supra ¶ 458 (showing Star Domestic Fittings shares by volume of 

{ })). 

10.9.2 McWane’s Exclusive Dealing Policy Prevented Star from Investing in 

Its Business 

2109. McWane’s Exclusive Dealing Policy prevented Star from investing in its business. With 

Distributors reluctant to take the risk imposed by McWane’s Exclusive Dealing Policy, 

(see supra § 10.9.1), 

(CX 2537 (McCutcheon, IHT (Vol. 1) at 117­

121, 179-181, in camera); see infra §§ 10.9.2.1, 10.9.2.2, 10.9.2.3)). 

10.9.2.1	 Disadvantages of Working with Independent Jobbing 

Foundries 

2110.	 The independent (or “jobbing”) foundries from which Star purchased Domestic Fittings 

are less efficient and reliable than a dedicated foundry operated exclusively for the 

production of Fittings. (See infra ¶¶ 2111-2125). 

2111.	 Star’s initial costs of producing Domestic Fittings through independent third-party 

foundries were higher than they would have been if Star operated its own foundry. 

(McCutcheon, Tr. 2343). 

2112.	 {

 (Bhargava, Tr. 2946-2949, in camera; Bhargava, Tr. 2974, in 

camera { }; CX 

2535 (Bhutada, Dep. at 74, 126-127), in camera (CX 2534 (Bhutada, IHT at 83-92), in 

camera { 

} 

315 
 

 

2113. {

PUBLIC RECORD

 (Bhargava, Tr. 2937-2940, in camera). 

2114. { 

(CX 2534 (Bhutada, IHT at 91), in camera). 

2115. {

(Bhutada, Dep. at 129), in camera).} 

2116. { 

(Bhargava, Tr. 2950, 2954, in camera { 

} 

(CX 2535 

}; CX 2535 (Bhutada, 

Dep. at 74, 91, 128, 131), in camera)). 

2117. {

 (E.g., CX 

2375 at 001, 002, in camera { 

2118. {

 (Bhargava, Tr. 2933, in camera). 

2119. {

 (CX 2533 (Bhargava, Dep. at 47), in 

camera). 

2120. {

 (Bhargava, Tr. 2935-2936, in camera; CX 

2533 (Bhargava, Dep. at 55), in camera). 

2121. {

 (Bhargava, Tr. 2933, 2954-2955, in camera). 

2122. { 

316 
 

 

 

 

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} (Bhargava, Tr. 2941-2942, in camera; (e.g., CX 

2375 at 001, 002, in camera { 

2123. { 

(Bhargava, Tr. 2942-2945, in camera 

; CX 2375 at 001, 

in camera). 

2124.	 { 

(Bhargava, Tr. 2963, 2995, in camera); see also CX 2535 (Bhutada, Dep. at 127), in 

camera { 

2125. {

 (Bhargava, Tr. 2963, 2995, in camera)). 

10.9.2.2	 Star Planned to Obtain a Dedicated Foundry for Its Domestic 

Fittings Production 

2126. 

2127. { 

(CX 2533 (Bhargava, Dep. at 26), in camera). 

2128. 

(CX 2534 (Bhutada, IHT at 45-46), 

in camera). 

2129. {

 (CX 2535 (Bhutada, Dep. at 83-84), in camera). 

2130.	 { 

(Bhargava, Tr. 2956, in camera; CX 2535 (Bhutada, Dep. at 137), in camera; CX 2533 

(Bhargava, Dep. at 67), in camera). 

When Star entered the Domestic Fittings market, it planned to purchase a dedicated 

foundry for its Domestic Fittings production, and it pursued acquisition of such a 

foundry. (Infra ¶¶ 2127-2140). 

{

317 
 

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2131. { 

2132. 

(CX 2535 (Bhutada, Dep. at 138), in camera). 

2133. {

 (CX 

2134. 

 (Bhargava, Tr. 3015-3017, in camera). 

2135. 

camera { 

2136. {

 (Bhargava, Tr. 3018, in camera); {

2137. 

(CX 2535 (Bhutada, Dep. at 138-139), in camera). 

2138. 

2139. 

(McCutcheon, IHT (Vol. 1) at 110, in camera); CX 2534 (Bhutada, IHT at 45-46), in 

camera; CX 2535 (Bhutada, Dep. at 84-85), in camera { 

; Bhargava, Tr. 2960-2961, in camera { 

(Bhargava, Tr. 2956, in camera). 

{

2535 (Bhutada, Dep. at 138), in camera). 

{

{

 (CX 2535 (Bhutada, Dep. at 137-138), in camera; CX 2389 at 001, in 

 (Bhargava, Tr. 3021, in camera { 

{

{

 (CX 2535 

(Bhutada, Dep. at 138-139), in camera). 

{

 (McCutcheon, Tr. 2285, 2342; CX 2537 

318 
 

 

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} (RX-694 (Bhutada, Dep. at 85)). 

2140.	 {

 (Bhargava, Tr. 2962, in camera; 

CX 2535 (Bhutada, Dep. at 91-93, 140-142), in camera) 

; CX 1801-A at 005, in 

camera { } 

10.9.2.3	 Star Did Not Purchase a Dedicated Foundry for Its Domestic 

Fittings Production Because of McWane’s Exclusive Dealing 

Policy 

2141.	 As a result of McWane’s Exclusive Dealing Policy, Star did not purchase a dedicated 

foundry for Domestic Fittings production. (Infra ¶¶ 2142-2159). 

2143.	 {

 (Bhargava, Tr. 2959, in camera). 

2144. {

 (Bhargava, Tr. 2956-2957, in camera). 

2145.	 Star learned of McWane’s Exclusive Dealing Policy immediately after McWane sent the 

letter announcing the policy to the market. (McCutcheon, Tr. 2300-2301; CX 0010). 

2146.	 {

 (Bhargava, Tr. 2958-2960, in camera). 

{ 

(Bhargava, Tr. 2960, in camera). 

2147.	 Star believed that HD Supply would not buy Domestic Fittings from Star because of 

McWane’s Exclusive Dealing Policy. (McCutcheon, Tr. 2329-233029) (testifying that 

when Joe Antico, a branch manager at HD Supply, tried to give a Domestic Fittings job 

2142. {

 (CX 

2534 (Bhutada, IHT at 47-48), in camera). 

29 The cited trial testimony regarding the out of court statement of Mr. Anderson is cited to prove 

its effect on Mr. McCutcheon and Star, and is not cited to prove the truth of the matter asserted 

in the statement. (See McCutcheon, Tr. 2323). 

319 
 

 

 

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to Star, Darrin Anderson told Mr. McCutcheon and Mr. Antico that HD Supply could not 

buy Domestic Fittings from Star because of McWane’s Exclusive Dealing Policy and HD 

Supply’s corporate position); see also CX 2537 (McCutcheon, IHT (Vol. 1) at 168); see 

also Bhargava, Tr. 2976-2977,30 in camera { 

2148. {

 (McCutcheon, Tr. 2326-2327 ; CX 2537 (McCutcheon, IHT 

(Vol.1) at 166-167, 171, in camera { 

; see also (Bhargava, Tr. 2976-2977, 

in camera) 

2149. { 

(McCutcheon, Tr. 2321-2324 

; see also CX 2537 

(McCutcheon, IHT at 160-161), in camera { 

2150. {

 (McCutcheon, Tr. 2324­

2326 { 

; see also CX 2537 (McCutcheon, IHT at 161), 

in camera). 

30 The cited trial testimony regarding the out of court statement of { } is cited to prove 

its effect on Star, not to prove the truth of the matter asserted in the statement. (See Bhargava, 

Tr. 2976). 

31 The cited trial testimony regarding the out of court statements of { } is 

cited to prove their effect on Mr. McCutcheon and Star, not to prove the truth of the matters 

asserted in the statements. (See McCutcheon, Tr. 2323). 

32 The cited trial testimony regarding the out of court statement of { } is cited to 

prove its effect on Mr. McCutcheon and Star, not to prove the truth of the matter asserted in the 

statement. (See McCutcheon, Tr. 2322). 

33 The cited trial testimony regarding the out of court statement of { } is cited to 

prove its effect on Mr. McCutcheon and Star, not to prove the truth of the matter asserted in the 

statement. (See McCutcheon, Tr. 2323). 

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2151. {

 (McCutcheon, 

Tr. 2326 

; see also CX 2537 (McCutcheon, 

IHT at 162), in camera). 

2152.	 {

 (McCutcheon, Tr. 2327-2328 

; see 

also CX 2537 (McCutcheon, IHT at 163, 166), in camera). 

2153.	 Star believed that Distributor WinWater would not buy Domestic Fittings from Star 

because of McWane’s Exclusive Dealing Policy. (McCutcheon, Tr. 232936 (Eddie Gibbs, 

an employee at Distributor WinWater, told Mr. McCutcheon that WinWater could not 

buy Domestic Fittings from Star because of McWane’s Exclusive Dealing Policy, and 

that he had instructed his employees not to purchase Domestic Fittings from Star)). 

2154.	 Star believed that Distributors Western Water Works and Wells Supply would not 

purchase Domestic Fittings from Star because of McWane’s Exclusive Dealing Policy. 

superiors that Distributor Western Water Works reported that if it purchased Star’s 

(McCutcheon, Tr. 2330-2333 (Star Territory Manager John Ristine reported to his 

Domestic Fittings, McWane would cut them off, and that Distributor Wells Supply 

reported that if it purchased Star’s Domestic Fittings either double the price to Wells for 

shorts or cut them off altogether); CX 0011).37 

2155.	 { 

34 The cited trial testimony regarding the out of court statement of { } is cited to 

prove its effect on Mr. McCutcheon and Star, not to prove the truth of the matter asserted in the 

statement. (See McCutcheon, Tr. 2323). 

35 The cited trial testimony regarding the out of court statements of { 

} is cited to prove their effect on Mr. McCutcheon and Star, not to 

prove the truth of the matters asserted in the statements. (See McCutcheon, Tr. 2322). 

36 The cited trial testimony regarding the out of court statement of Mr. Gibbs is cited to prove its 

effect on Mr. McCutcheon and Star, not to prove the truth of the matter asserted in the statement. 

(See McCutcheon, Tr. 2323). 

37 The cited trial testimony and exhibit regarding the out of court statements of the Distributors 

are cited to prove the effect if the statements on Mr. McCutcheon and Star, not to prove the truth 

of the matters asserted in the statements. (See McCutcheon, Tr. 2336-2337). 

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} 

(McCutcheon, Tr. 2648-2650, in camera). 

2156.	 Based on information received from customers and reflected in Star’s Domestic Quote 

Log, Star believed that McWane’s Exclusive Dealing Policy foreclosed Star from selling 

to both HD Supply and to Ferguson, cutting its potential sales of Domestic Fittings in 

half. (McCutcheon, Tr. 2315-2317; CX 2294). Because it perceived a diminished 

opportunity for sales of Domestic Fittings, Star did not believe that purchasing a 

Domestic Fittings foundry made sense. (McCutcheon, Tr. 2317; Bhargava, Tr. 2977, in 

camera) { 

2157.	 {

 (CX 2535 (Bhutada, Dep. at 137), in camera 

; 

Bhargava, Tr. 2957, in camera 

; Bhargava, Tr. 2958, in camera 

; Bhargava, Tr. 3020, in camera 

2158.	 {

 (Bhargava, Tr. 2964-2965, 3022, 

in camera {
 

}
 

2159.	 {

 (Bhargava, Tr. 2964-2965, in camera 

38 The cited trial testimony regarding the out of court statements of { } is cited 

to prove their effect on Mr. McCutcheon and Star, not to prove the truth of the matters asserted 

in the statements. (See McCutcheon, Tr. 2649). 

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10.9.3 McWane’s Exclusive Dealing Policy Made Star Unable to Effectively 

Compete with McWane in Domestic Fittings 

2160.	 As a result of McWane’s Exclusive Dealing Policy, Star was unable to lower its prices 

enough to effectively constrain McWane’s monopoly prices in the Domestic Fittings 

market. (Infra ¶¶ 2161-2166). 

2161.	 McWane’s policy kept Star from driving down prices of Domestic Fittings. 

 (McCutcheon, Tr. 2343, 2348-2350; Bhargava, Tr. 

2963-2964, in camera 

; CX 2480 (Napoli, Dep. at 71-72) 

(explaining that he is not concerned about Star driving down the prices of Domestic 

Fittings); see also supra §§ 10.1.2.3, 10.9.2.1 (Star would have had lower cost of 

production at its own plant)). 

2162.	 In the few instances in which Star was able to obtain Domestic Fittings business, it had to 

reduce its prices significantly in an effort to compensate customers for the risks they 

confronted in McWane’s Exclusive Dealing Policy. For one project (Walton Road), Mr. 

McCutcheon approved additional discounts to Groeniger below Star’s Domestic Fittings 

multipliers by 3% (24” and below) and by 10% (30” - 36”) to compensate Groeniger for 

taking risk by buying Star. (CX 2328 at 001 (“Discounts necessary to take risk buying 

Star. Negotiated with Mike Groeniger.”)). 

2163.	 In 2009 and 2010, about half of Star’s Domestic Fittings sales were at lower prices than 

McWane’s sales, by an average of 5%. (CX 2537 (McCutcheon, IHT (Vol. 1) at 195­

196) (“I would say the pricing is approximately 5 percent better.”); McCutcheon, Tr. 

2339-2342 (noting that Star offers special prices, cash discounts, terms and freight). 

2164.	 Despite Star’s presence in the market, Star did not observe McWane responding to Star’s 

discounted prices for Domestic Fittings in 2009 and 2010. (CX 2537 (McCutcheon, IHT 

(Vol. 1) at 196)). 

2165.	 Distributors were unable to use the availability of Star Domestic Fittings to negotiate 

lower prices of Domestic Fittings with McWane. (CX 2489 (Morrison, IHT at 82) 

(“They have shown no willingness to deviate from the multiplier price under any 

circumstances, not that I’ve seen.”)). 

2166.	 With Star’s Domestic Fittings cost structure – outsourcing its Domestic Fittings 

manufacturing to independent foundries – it could not lower its Domestic Fittings prices 

further. (McCutcheon, Tr. 2344; CX 2537 (McCutcheon, IHT (Vol. 1) at 145)). 

11	 McWane Entered the MDA with Sigma to Further Secure Its Monopoly Position in the 

Domestic Fittings Market 

2167.	 McWane entered into the MDA with Sigma in order to reduce competition in the 

Domestic Fittings and Fittings markets by averting Sigma’s independent entry into the 

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Domestic Fittings market and further hindering Star’s attempt at entry. (Infra ¶¶ 2168­

2465). 

2168.	 On September 17, 2009, McWane entered into an OEM Distribution Agreement 

(commonly referred to as the “Master Distribution Agreement,” or “MDA”) for the 

supply of Domestic Fittings by McWane to Sigma. (CX 1194 (signed MDA)). 

2169.	 Among other things, McWane and Sigma agreed that Sigma would source its Domestic 

Fittings exclusively from McWane and that Sigma would enforce McWane’s Exclusive 

Dealing Policy. (CX 1194 at 001-002 §§ 1(b), 1(c); see also infra ¶¶ 2372-2440 

(describing MDA terms and implementation)). 

2170.	 Sigma and McWane publicly announced the MDA on September 22, 2009. (CX 1606 at 

002). 

11.1	 Sigma Considered Two Options for Meeting Its Number One Priority: 

Domestic Fittings Sourcing 

2171.	 After ARRA was enacted, staying on the sidelines of the Domestic Fittings market was 

not an option for Sigma because it felt it needed to defend its market share by offering 

Domestic Fittings. (CX 2524 (Box, Dep. at 22); see also CX 2524 (Box, Dep. at 61, 82) 

(Sigma needed to do something to supply its customers with Domestic Fittings in all size 

ranges); CX 2530 (Rona, Dep. at 39-40) (Sigma felt ARRA would shut it out of a portion 

of the Fittings business); CX 2530 (Rona, Dep. at 240) (“Q. And I understand that you 

believe that Sigma needed to be in this [Domestic Fittings] market one way or the other; 

correct? A. Correct.”); Rona, Tr. 1457 (Sigma believed demand for Domestic Fittings 

would increase as a result of ARRA and that Sigma therefore “needed to explore the 

option of being in a position to produce fittings for ourself [sic]”); CX 0219 at 001 (Rona 

writing in May 2009 that the ARRA Buy American requirement was an “extremely real 

threat” and that “[i]t is quite clear now that we need a credible plan”); see supra § 8.2). 

2172.	 Sigma considered two potential avenues for entering the Domestic Fittings market: (1) 

purchasing “private label” Domestic Fittings from McWane (i.e., Fittings manufactured 

by McWane for Sigma and branded as Sigma); or (2) producing Domestic Fittings using 

the same “virtual manufacturing” model that it used for imported Fittings (i.e., 

contracting with independent, domestic foundries). (Pais, Tr. 1752; CX 2528 (Pais, Dep. 

at 184-185) (discussing “two viable options: one is to produce under our own tutelage 

and our own funding, and, secondly, to develop access to McWane’s, because they are 

the only ones”) (referring to the first option as “virtual manufacturing”); Rona, Tr. 1630 

(explaining meaning of “private label”)). 

2173.	 Sigma pursued both private label and virtual manufacturing options for entering the 

Domestic Fittings market simultaneously because “the conditions were just so urgent.” 

(Pais, Tr. 1758; CX 0231; CX 2530 (Rona, Dep. at 211-212) (describing parallel paths 

pursued by Sigma)). 

2174.	 Sigma pursued the virtual manufacturing option for Domestic entry by forming a SIGMA 

Domestic Production (“SDP”) plan and assembling a team of executives responsible for 

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investigating and exploring the possibility of Sigma producing Fittings domestically. 

(Rona, Tr. 1457; Rona, Tr. 1470 (defining “SDP”)). 

2175.	 In a May 4, 2009 memorandum to the Sigma Board, Mr. Pais described the ARRA “BuyAmerican” threat and declared that “it behooves SIGMA to review the feasibility of 

producing a line of ‘domestic’ Fittings, to meet this growing need, in order to reassure 

our customer base and retain their loyalty and their business at the current levels.” (CX 

0214 at 005; Pais, Tr. 1751-1752). 

2176.	 By May 26, 2009, according to Mr. Florence, Sigma’s majority shareholder Frontenac, 

Domestic Fittings sourcing was Sigma’s “#1a priority.” (CX 1076 at 001; Pais, Tr. 1856­

1857). 

11.2	 McWane Rejected Sigma’s Initial Request for “Private Label” Domestic 

Fittings 

2177.	 Mr. Pais made a series of personal pleas to McWane’s CEO Mr. Page for McWane to 

supply Sigma with “private label” Domestic Fittings. (CX 1986 at 002, 003 (Pais draft 

letter to Page describing request and four meetings); CX 1225 at 003, 004 (same in final 

version of letter); Tatman, Tr. 615 (sometime after ARRA was signed into law and before 

McWane became aware of Star’s Domestic Fittings program, Sigma approached 

McWane seeking private label Domestic Fittings.); Pais, Tr. 1744-1745 (in the first half 

of 2009, Mr. Pais approached Mr. Page about a private label arrangement)). 

2178.	 For example, on March 17, 2009, Mr. Page and Mr. Pais had a lunch meeting at 

Morimoto restaurant in New York City were they discussed the possibility of McWane 

providing “private label” Domestic Fittings to Sigma. (CX 2061; CX 1269; Pais, Tr. 

1745, 1756-1757). 

2179.	 On April 2, 2009, Mr. Page and Mr. Pais met again in person, (CX 2093), and on April 6, 

2009, Mr. Pais sent an email to Mr. Page asking to speak later that afternoon. (CX 2094). 

2180.	 As of April 25, 2009, McWane had decided not to sell Domestic Fittings to Sigma. (CX 

1289; CX 2479 (McCullough, Dep. at 76)). 

2181.	 In a May 4, 2009 memorandum to the Sigma Board, Mr. Pais reported that Sigma had 

initially received agreement of McWane’s top management to a “private label” Domestic 

Fittings supply agreement, but that the McWane operational/sales team persuaded 

McWane’s management not to do this. (CX 0214 at 004; see also Pais, Tr. 1744-1745 

(Mr. Page was initially receptive to Sigma’s private label request, but ultimately decided 

not to sell Domestic Fittings to Sigma); CX 0908 (April 9, 2009 email from Page to Pais 

stating that “after significant internal discussion,” McWane’s Fittings team had “decided 

not to sell Sigma private label product from our domestic foundries”); Rona, Tr. 1481 

(McWane turned down Sigma’s request to produce private label Domestic Fittings)). 

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2182. 

2183. 

2184. 

2185. 

2186. 

2187. 

11.3	 In Response to Sigma’s Continued Pursuit of Private Label Fittings, 

McWane Made an Offer That Sigma Could Not Accept: McWane Branded 

Fittings for Only 5% off Published Prices 

11.3.1 Sigma Continued to Appeal to McWane for Private Label Domestic 

Fittings 

{

 (CX 1997 at 008, in camera { 

}; Rona, Tr. 1489 (after 

McWane turned down Sigma’s initial request to produce private label fittings for Sigma 

in April 2009, Sigma renewed that request in the spring of 2009)). 

After being initially turned down, Sigma’s Mr. Pais traveled to two separate meetings 

with top McWane executives in an effort to convince them to offer private label Fittings 

to Sigma. Mr. Pais spoke with Mr. McCullough in Iowa on April 28, 2009, and then after 

Mr. McCullough denied his request, with Mr. Page in Birmingham, Alabama. (Pais, Tr. 

1756-1757, 2035 (McCullough declined to entertain request for private label); CX 0209 

at 001, 004 (Pais email regarding upcoming meeting with McCullough); CX 0728 (email 

between Pais and McCullough planning meeting); CX 0314 (Pais email referring to May 

1, 2009 meeting among Pais, Rybacki and Page)). 

In his May 4, 2009 memorandum to the Sigma Board reporting on his meeting with Mr. 

McCullough, Mr. Pais reported that he had revealed to Mr. McCullough Sigma’s plan to 

develop a Korean ARRA-compliant manufacturing capability. (CX 0214 at 004). 

Despite Mr. Pais’s continued efforts, Mr. Page and Mr. McCullough continued to refuse 

to provide Sigma with private label Domestic Fittings. (Pais, Tr. 1757). 

11.3.2 McWane Considered Whether to Provide Domestic Fittings to Sigma 

In May 2009, Mr. Tatman opposed selling private label Domestic Fittings to Sigma in 

part because he believed based on recent experience that Sigma did not live up to its 

agreements: 

A healthy and constructive relationship with Sigma could be 

benificial [sic] to both parties and the industry in general .. [but 

that] there’s a general trust issue based upon recent experience 

that they don’t seem too consistently stay within the Spirit of 

agreements. 

(CX 0456 at 001 (May 18, 2009 email from Mr. Tatman to Messrs. Page, McCullough 

and Walton)). 

Mr. Tatman nevertheless suggested that continued exploration of a limited Domestic 

Fittings supply arrangement with Sigma may be worthwhile, informing Mr. Page directly 

in a May 18, 2009 email that “we could still continue to creatively explore whether or not 

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there could be a healthy relationship structure established between McWane, ACIPCO, 

and Sigma.” (CX 0456 at 001). 

2188.	 At Mr. Pais’s request, Mr. Page and Mr. Pais had two days of meetings on May 20 and 

21, 2009. (CX 2100; CX 1271; CX 1076 at 004; CX 2101). 

2189.	 Messrs. McCullough, Walton, and Tatman scheduled a meeting on May 26, 2009 to 

discuss “supplying Domestic product to our competitors.” (CX 0067 at 001). 

2190.	 In preparation for that meeting, on or about May 26, 2009, Mr. Tatman circulated a 

PowerPoint presentation setting forth discussion points that weighed the advantages and 

disadvantages of supplying Domestic Fittings to Sigma. (CX 0067 at 003; Tatman, Tr. 

621, 623). 

2191.	 Specifically, in his May 26, 2009 presentation, Mr. Tatman explained that if McWane 

choose not to sell Domestic Fittings to Sigma, it would “Retain the full margin for 

Domestic product within McWane.” However, if McWane agreed to supply Sigma, then 

it would “Eliminate the probability they will secure another domestic source option.” 

(CX 0067 at 003; Tatman, Tr. 621, 623). 

2192.	 In his May 26, 2009 presentation, Mr. Tatman estimated that Sigma would need a 20% 

discount from McWane’s published prices to be “viable,” i.e., to be able to resell the 

Fittings profitably. (CX 0067 at 004 (“I suspect to be viable on their end they’ll need at 

least 20% off published and will probably want 25%-30%. On our end . . . [i]n rough 

numbers our “simple” break even point is around 12% off published.”); Tatman, Tr. 624­

626 (referring to the calculations as “back of the envelope”)). 

2193.	 The 20% minimum discount required by Sigma that Mr. Tatman estimated in his May 26, 

2009 presentation included matching McWane’s 8% rebate, 2% payment terms, and 4% 

on freight, to arrive at 14% with zero absorption of any operating expenses. (CX 0067 at 

004; Tatman, Tr. 632; see also CX 0069 at 001 (“15% probably overstates the breakeven 

point for Sigma.”)). 

2194.	 In his May 26, 2009 presentation, Mr. Tatman also estimated that the “break even” point 

for McWane selling Domestic Fittings to Sigma would be a 12% discount from published 

prices, i.e., McWane would earn the same profits selling Domestic Fittings to Sigma at a 

12% discount as it would from selling at full price to Distributors in light of freight and 

Distributor rebate savings. (CX 0067 at 004; Tatman, Tr. 624-626, 634-636 (referring to 

the calculations as “back of the envelope”); see also CX 0069 at 001 (concluding 

McWane’s breakeven point was 13% discount from published prices and that, “From our 

perspective anything more than about 13% is transfer of margin from our business to 

Sigma.”)). 

2195.	 Mr. Tatman concluded his May 26, 2009 presentation with a statement that, “plumbing 

factors aside,” i.e., putting aside the possibility that Star would retaliate against a 

McWane/Sigma Fittings alliance by cutting prices as they had in the separate 

plumbing/soil pipe market, “this probably comes down to two factors: 

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1. How legitimate of a risk is there with a competitor successfully 

introducing a Domestic product line? 

2. Do we believe that in the bigger picture, supporting competitors 

with Domestic product would result in a healthier industry on the 

non-Domestic side of the business?” 

(CX 0067 at 004, 002; Tatman, Tr. 627-629). 

2196.	 McWane made two “core assumptions” in its decision to sell Domestic Fittings to Sigma: 

“Tyler/Union would remain the only truly viable source for domestically produced 

[Fittings]...” and neither Sigma nor McWane “would be significantly underselling the 

other.” (CX 0070 at 001). 

2197.	 Mr. McCullough always “took for granted” that any arrangement with Sigma would 

involve McWane being the exclusive supplier of Domestic Fittings for Sigma. (CX 2479 

(McCullough, Dep. at 107-108, 110-111) (discussing CX 0070)). 

2198.	 Mr. McCullough then tasked Mr. Tatman to prepare a list of “all the potential reasons to 

not sell domestic product to Sigma.” (CX 0070 (emphasis in original); Tatman, Tr. 634). 

2199.	 McWane’s main reason for not selling Domestic Fittings to Sigma was because doing so 

would require McWane to share its Domestic Fittings profit margin with Sigma. In other 

words, any incremental margin gained by Sigma on the sale of Domestic Fittings would 

be incremental loss of margin for McWane. (CX 0067 at 003; CX 0070 at 001; CX 2479 

(McCullough, Dep. at 87-88, 94-95)). 

2200.	 Subject to McWane’s two core assumptions (see supra ¶ 2196), the reasons identified by 

Mr. Tatman for McWane to not sell to Sigma included: 

a.	 Loss of margin because “any incremental margin $ retained by Sigma would be 

incremental margin $ lost by McWane;” 

b.	 Loss of business growth opportunities as ARRA and Domestic Fittings sales could 

be a “foot in the door” to regain former customers; 

c.	 Upsetting McWane’s most loyal customers, particularly if they lost an ARRAfunded job to a competitor who obtained Domestic Product from Sigma; 

d.	 The possible erosion of blended Fittings sales as Distributors placed import Fittings 

orders to fill the truck for a Domestic Fittings order with Sigma; and 

e.	 Losing the ability to leverage its position in Domestic Fittings to benefit its other 

business lines, including non-Domestic Fittings. 

(CX 0070 at 001-002 (also noting other lesser reasons, such as losing McWane’s identity 

as “the Domestic supplier,” and placement of Domestic Fittings in regional yards could 

backfire if McWane has less responsive service); Tatman, Tr. 635-637; CX 2479 

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(McCullough, Dep. at 98-99); CX 1209 (McCullough February 2009 email suggesting 

need to “leverage our domestic position” to require Distributors to acquire non-Domestic 

Fittings from McWane)). 

2201.	 According to Mr. McCullough: 

ultimately the decision [of whether to sell Domestic Fittings to 

SIGMA] was SIGMA has the ability to get into domestic made 

manufacturing of waterworks fittings, just as Star did. If we had 

the choice between their not [sic] being in it and us selling them, or 

them being in it and us not selling them, that ultimately, we made 

the decision it’s under our best interest to sell them. 

CX 2479 (McCullough, Dep. at 104-105); see also CX 0076 at 008 (“The decision on 

Sigma is probably the same as before... If they are truly committed to make the 

investment level required to be a viable competitor regardless of our actions, then 

producing for them is probably of greater financial benefit to our business than having 

them source elsewhere.”)). 

2202.	 One reason for McWane to sell Domestic Fittings to Sigma was to “eliminate the 

probability” that Sigma would secure another domestic source option. (CX 0067 at 003; 

CX 2479 (McCullough, Dep. at 86-87); see also CX 2479 (McCullough, Dep. at 81-82 

(explaining that CX 0067 is a presentation created by Rick Tatman that discusses the 

pro’s and con’s of selling Domestic Fittings to Sigma)). 

11.3.3 McWane Offered McWane Branded Domestic Fittings to Sigma at 

5% Discount off of Published Pricing 

2203.	 On June 5, 2009, Mr. Tatman sent Mr. Rona an email attaching an offer from McWane to 

sell Domestic Fittings to Sigma at 5% off its published prices. (CX 1434 at 001; CX 

0225 at 003; Rona, Tr. 1490; Pais, Tr. 1760-1761). 

2204.	 At the time of McWane’s June 5, 2009 offer to Sigma of a Domestic Fittings at a 5% 

discount, Mr. Tatman believed that Sigma would need a 12% or 13% discount to break 

even. (Tatman, Tr. 642, CX 0067; CX 0069 at 001). 

2205.	 On June 8, 2009, Mr. Rona responded to Mr. Tatman’s June 5, 2009 offer, “Is this really 

the final deal????” (CX 1243; Tatman, Tr. 643; Rona, Tr. 1490). 

2206.	 Sigma was not satisfied with McWane’s offer, and considered the offer to be an insult as 

it would not allow enough margin to cover operating costs. (CX 0909 (Rybacki July 17, 

2009 letter to Page describing “McWane’s decision to ignore the spirit of co-operation 

between the companies and insult us with a private labeling offer of Customer Multiplier 

less 5%”); CX 2531 (Rybacki, Dep. at 307-308) (“[I]t was an insult to me, the 5 

percent.”) (discussing CX 0909); CX 2531 (Rybacki, Dep. at 149-150) (“5 percent 

wouldn’t even cover the freight, let alone handling; and not only would we not make 

money, we would lose money; and we couldn’t afford to lose money for two years on a 

deal. It was a terrible deal.”); CX 0225 at 001 (Pais referring to offer as “little more than 

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a patronizing accommodation”); Pais, Tr. 1760-1761 (describing offer as “nominal” 

because it did not provide Sigma the opportunity to make any margin off the resale of 

Domestic Fittings); Rona, Tr. 1492; Rona, Tr. 1489-1490 (Sigma was not satisfied with 

McWane’s offer); CX 2523 (Bhattacharji, Dep. at 182-184) (McWane’s offer did not 

afford Sigma enough margin to cover its costs; Sigma would have “absolutely” lost 

money); CX 2531 (Rybacki, Dep. at 175) (“I was insulted by that offer.”)). 

2207.	 Sigma did not accept McWane’s offer. (Pais, Tr. 1761). 

2208.	 {

 (CX 1997 at 008, in camera). 

2209.	 {

 (CX 1997 at 008, in camera). 

11.4 Sigma Developed and Implemented Its Own Domestic Production Plan 

11.4.1 Sigma Was a Potential Entrant into the Domestic Fittings Market 

Until It Signed the MDA with McWane 

2210.	 In 2009, before Sigma and McWane signed the MDA, Sigma devoted substantial time 

and resources to developing and carrying out a comprehensive plan for entry into 

Domestic Fittings production, and took numerous substantial and concrete steps toward 

entry. (Infra ¶¶ 2211-2281). 

11.4.1.1	 Sigma Formed a Team of Top Executives to Move Forward 

with Its Plan to Enter the Domestic Fittings Market by 

Producing Fittings Through Independent, Domestic Foundries 

2211.	 In early 2009, Sigma formed a team of top executives to move forward with its plan to 

enter the Domestic Fittings market by producing fittings through independent, domestic 

foundries. (Infra ¶¶ 2212-2220). 

2212.	 Sigma had key personnel who would be needed to supervise a virtual manufacturing 

operation for Domestic Fittings. For example, Stuart Box had extensive experience in 

U.S. foundry work and Fittings manufacturing before joining Sigma, and Gopi 

Ramanathan also had extensive foundry experience. (CX 2530 (Rona, Dep. at 213-214); 

Rona, Tr. 1469-1470). 

2213.	 Sigma formed an “SDP” team consisting of Messrs. Pais, Bhattacharji, Rona, Box, and 

Ramanathan. (Rona, Tr. 1462, 1468 (Messrs. Rybacki and Brakefield were not involved 

in the efforts of Sigma’s SDP team); Brakefield, Tr. 1408-1409; Pais, Tr. 1751-1752). 

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2214.	 Mr. Box’s role on the Sigma SDP team was primarily to identify independent domestic 

foundries and manufacturing strategies that would allow Sigma to produce Domestic 

Fittings. (Rona, Tr. 1474-1475). 

2215.	 Mr. Ramanathan’s role on the Sigma SDP team was to provide leads for potential 

foundries and to collect the information required for a capital investment and tooling 

budget. (CX 2530 (Rona, Dep. at 213-214)). 

2216.	 The purpose of the SDP team’s efforts was to determine the costs, foundry capabilities, 

and time it would take for Sigma to produce Domestic Fittings in response to ARRA. 

(Rona, Tr. 1462-1463). 

2217.	 Sigma’s SDP plan was to use factories and independent foundries to produce Domestic 

Fittings based on Sigma’s drawings and tooling, similar to Sigma’s existing methods of 

producing Fittings overseas. Sigma planned to do the finishing, or lining and painting, of 

its Domestic Fittings itself. (Rona, Tr. 1469-1470; CX 2524 (Box, Dep. at 41)). 

2218.	 From February to May 2009, Sigma’s SDP team engaged in strategic planning for 

producing Domestic Fittings. (CX 0282 (Box September 2009 presentation recounting 

history of Sigma SDP efforts); CX 2530 (Rona, Dep. at 228) (Box presentation is a fair 

representation of what occurred)). 

2219.	 By May 20 2009, Mr. Pais had asked the SDP team to prepare a project plan, including 

economical, logistical and financial plans, including the cost of production. (Pais, Tr. 

1759; CX 0307 at 001 (“I have now advised [Mr. Box] to prepare a complete Project 

Plan – with economical, logistical and financial parts outlined in some detail, so we can 

evaluate the cost/benefit aspects of the investment plan . . . .”)). 

2220.	 Sigma’s SDP team held meetings, circulated and carried out action plans, visited 

foundries, secured offers to produce Domestic Fittings, and conducted a series of 

production trials. (See infra ¶¶ 2231-2248). 

11.4.1.2 Sigma Developed a Viable Plan for Domestic Entry 

2221.	 Sigma’s plan for entry into the Domestic Fittings market was viable and would have 

allowed it to begin shipping Domestic Fittings by February 2010. (Infra ¶¶ 2222-2228). 

2222.	 Sigma planned to enter Domestic Fittings production incrementally, increasing the 

number of Fittings available each month. (Rona, Tr. 1555-1556). 

2223.	 Sigma’s initial intention was the first Domestic Fittings would become available in early 

2010, and that additional items would become available every month over the course of 

2010. (RX-689 (Rona, Dep. at 60-61)). 

2224.	 Sigma anticipated McWane’s “all or nothing” policy, and believed that it would need to 

offer a “critical mass” of Domestic Fittings to combat that policy. (Rona, Tr. 1505-1507 

(Rona developed a model that suggested Sigma should offer about 700 types of fittings); 

Rona, Tr. 1672 (approximately 730 items needed); CX 0231 (Bhattacharji, June 16: “I 

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feel we will need a good range of domestic, otherwise we will fall hostage when the 

distributor says he cannot give just the large size because McWane wants all or 

nothing.”)). 

2225.	 For any particular Domestic Fitting, Sigma could have Fittings available for sale four to 

five months from first commissioning the tooling for that Fitting. (Rona, Tr. 1676 

(“From the day you would issue a tooling order to a tooling supplier, it could take 60 to 

90 days to get the tooling here. And then it would take 60 days to set it up, produce it, 

qualify it, get it ready, finish it.”)). 

2226.	 If Sigma had begun ordering patterns in September 2009, it could have begun shipping 

completed Fittings by as early as February 2010. (Rona, Tr. 1676). 

2227.	 Sigma expected to have completed its roll out of all of the approximately 700 Fittings 

needed to offer a full line of Domestic Fittings within 18 to 24 months. (Rona, Tr. 1673­

1674 (noting that it would take approximately 400 patterns to produce 730 Fittings)). 

2228.	 Sigma could have sold Domestic Fittings “as they came off the line.” (CX 2523 

(Bhattacharji, Dep. at 247)). Sigma would have had a “wide range of produced Fittings 

in” in stocking inventory within 18-24 months. (CX 2523 (Bhattacharji, Dep. at 57, 

247)). 

11.4.1.3	 Sigma Invested Significant Resources and Took Concrete 

Steps in Pursuit of Domestic Production 

2229.	 Sigma invested substantial time and resources in pursuing Domestic Fittings production, 

including investigating the patterns and machinery necessary for Domestic Fittings 

production, identifying, interviewing, and visiting domestic foundries, and performing 

production tests. (Infra ¶¶ 2230-2248). 

2230.	 Sigma invested significant resources in pursuing Domestic Production. (CX 2523 

(Bhattacharji, Dep. at 30)). 

2231.	 Sigma investigated all aspects of the processing steps necessary to make Fittings, from 

beginning to end: casting, machining, transportation and finishing. (CX 2524 (Box, Dep. 

at 28) (describing how Sigma “looked at all aspects of the processing steps necessary 

from the beginning to the end; casting, machining, transportation, finishing.”)). 

2232.	 For example, on or about June 5, 2009, Mr. Box summarized the results of SDP planning 

meetings held on June 3 and 4, 2009, which included detailed action plans for 

identification of top Fittings, foundries, molding machines, cost modeling, testing of lost 

foam production technology, and visits to potential foundry partners. (CX 0963 at 001; 

Rona, Tr. 1482-1486 (Sigma identified top Fittings for production, identified and visited 

foundries, identified machinery, prepared to produce a sample Fitting for the AWWA 

show, and purchased equipment)). 

2233.	 As of June 5, 2009, Sigma was identifying the top Fittings that it needed to produce in 

order to supply the market. (Rona, Tr. 1483-1484; CX 0963 at 001). 

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2234.	 As of June 5, 2009, Sigma was identifying “DISA” molding machines in the Southern 

and Southeastern United States. (Rona, Tr. 1484-1485; CX 0963 at 001). 

2235.	 As of June 5, 2009, Sigma identified over 50 potential foundries in the United States as 

potential sources of domestic production capacity. (Rona, Tr. 1484; CX 0963 at 001); 

CX 2524 (Box, Dep. at 27-28) (Sigma investigated over 50 foundries); CX 0964 at 001) 

(detailing Stuart Box’s efforts as of May 15, 2009, to identify domestic production 

capacity and noting that Eureka foundry has capacity and interest)). 

2236.	 For example, Sigma met with Glidewell foundry regarding producing Domestic Fitting 

castings, or unfinished Fittings, for Sigma. Mr. Pais and Mr. Hendrix met with Glidewell 

Foundry’s president once or twice about whether Glidewell could produce Domestic 

Fitting castings for Sigma, and subsequently, Mr. Glidewell provided Sigma with quotes 

for Domestic Fitting castings. (CX 2507 (Glidewell, Dep. at 131-132, 134-135); CX 

1451). 

2237.	 By June 18, 2009, Sigma’s SDP team was working on obtaining patterns for producing 

Domestic Fittings from Metalfit, and had placed orders for foam patterns and other 

equipment, such as cope and drag patterns, flasks and vibration tables, to be used in 

Domestic Fittings production. (Rona, Tr. 1507-1511; CX 0978 at 002). 

2238.	 By June 18, 2009, Sigma’s SDP team had identified at least two possibilities for the 

machining work required for their Domestic Fittings – Metalfit or Davis Machine. 

(Rona, Tr. 1488-1489, 1513-1514 (ultimately choosing Metalfit to machine Sigma’s 

Domestic Fittings); CX 0978 at 002). 

2239.	 By June 18, 2009, Sigma was taking the next steps in identifying domestic foundries by 

arranging foundry site visits by Mr. Rona. (Rona, Tr. 1508, 1511-1512 (also considering 

potential advantages of sourcing Domestic Fittings through a foundry affiliated with 

Sigma’s OEM customer, ACIPCO); CX 0978 at 002 (summarizing June 17, 2009 SDP 

meeting). 

2240.	 Mr. Rona visited at least five different domestic foundries as a part of Sigma’s 

investigation of the production of Domestic Fittings: Pryor Foundry, Quality Foundry, 

Eureka Foundry, and two foundries in Eastern Pennsylvania. (Rona, Tr. 1508-1509; see 

also CX 2530 (Rona, Dep. at 81-82) (estimating that SDP work took up 10% to 30% of 

his time from April to August of 2009, and that others at Sigma also were spending a 

considerable amount of their time on the project)). 

2241.	 Stuart Box also provided to Sigma’s SDP team reports on his detailed site visits to 

potential domestic production partners Mueller in Albertville, Alabama (CX 0090 at 002) 

and American Castings in Pryor, Oklahoma. (CX 1536 at 001). 

2242.	 Sigma visited American Castings foundry in Pryor, Oklahoma, which offered Sigma 

attractive pricing for the production of domestic mechanical and flanged Fittings from 

14” to 24”. Mr. Box reported that “The American team is very eager to help us in as 

many ways as possible,” and that they had been encouraged by ACIPCO to work with 

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Sigma. (Rona, Tr. 1532-1533; CX 1536 at 001; CX 2486 (Burns, Dep. at 15) (ACIPCO 

casts products at its American Castings foundry in Tulsa)). 

2243.	 Sigma also evaluated the Mueller Albertville foundry favorably when testing the 

production of ductile iron at their sister company, Anvil, for the production of Sigma’s 

Domestic Fittings. (Rona, Tr. 1533-1534; CX 0090). 

2244.	 Sigma also visited Eureka Foundry, which was “very willing” to work with Sigma. 

(Rona, Tr. 1485-1486; CX 0963 at 001). Sigma performed lost foam trials for the 

production of 30” to 48” Domestic Fittings at Eureka foundry. (Rona, Tr. 1529-1531 

(considering proportion of Domestic Fittings produced via lost foam versus cope and 

drag process for most efficient production); CX 0237 at 002-003). 

2245.	 Sigma was capable of cement-lining and coating Fittings itself. (Rona, Tr. 1488-1489; 

CX 0963 at 001; Brakefield, Tr. 1419 (Sigma had domestic facilities that could coat and 

cement-line Fittings); Rona, Tr. 1495-1496 (Sigma’s Alexander City, Alabama 

warehouse had the ability to cement-line and coat Domestic Fittings in 2009)). 

2246.	 The “lost foam” production method tested by Sigma, which involves using styrofoam 

replicas of Fittings that are placed in casting sand, would have allowed Sigma flexibility 

to produce a wide array of Fittings items more quickly and less expensively than the 

traditional pattern methods. (Rona, Tr. 1510, 1513; CX 0978 at 002 (describing foam 

plans as a “more complete product offering plan”)). 

2247.	 Sigma purchased two large flasks for large Domestic Fittings production trials. (Rona, 

Tr. 1485-1486; CX 0963 at 001). 

2248.	 Sigma spent between $50,000 and $75,000 investigating domestic production options. 

(CX 2529 (Rona, IHT at 142-143); CX 0958 at 001 (request to establish accounting 

mechanism for Sigma’s SDP expenses)). 

11.4.1.4	 Sigma Had Domestic Fittings Samples Ready for Display at 

the June 2009 AWWA Show 

2249.	 By the time of the June 2009 AWWA conference, Sigma had produced two or three 

sample Domestic Fittings at the Eureka Foundry in Tennessee, using patterns supplied by 

Metalfit. Sigma was very happy with the quality of the Domestic Fittings. (CX 0282 at 

006 (Box September 2009 presentation); CX 2530 (Rona, Dep. at 228) (Box presentation 

is a fair representation of what occurred); CX 1993 at 001-002 (SDP team emails 

describing process of finishing sample Fittings for AWWA show); see also Rona, Tr. 

1480, 1485; CX 0963 at 001 (noting, in item 1(f), preparation of sample Fitting for 

“AWWA show”)). 

2250.	 Sigma considered bringing the sample Fittings to the June 2009 AWWA in order to 

reassure customers that Sigma was “determined to have an option for them for their 

domestic fittings.” (Pais, Tr. 1765-1766). 

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2251.	 Ultimately, Sigma decided not to display its sample Domestic Fittings at the AWWA 

show due to concerns about McWane’s reaction. (Pais, Tr. 1765-1766; CX 0228 at 001­

003 (Pais email discussing several strategic implications of displaying Domestic Fittings 

samples at AWWA, and recommending not doing so); Pais, Tr. 1901)). 

2252.	 Three of the Domestic Fittings Sigma made as part of its plans for Domestic Production 

were sold for use in waterworks projects. (CX 2524 (Box, Dep. at 15-16)). 

11.4.1.5	 Sigma Redoubled Its Domestic Production Efforts in Early 

June 2009 

2253.	 In early June, Sigma redoubled its domestic production efforts. (See supra ¶¶ 2232-2239 

(describing intensive SDP efforts); CX 0225 at 001 (Pais: “[I]t’s time we seriously went 

ahead with our SDP plans. . . . Let’s re-group and get serious to develop a thorough and 

detailed ‘SDP’ plan.”); CX 2531 (Rybacki, Dep. at 307-308) (discussing SDP Plan)). 

2254.	 After Star announced its entry into the Domestic Fittings market at the June 2009 

AWWA show, Mr. Rona admitted that he “was fixated on [the fact] that Sigma had to 

have an answer because I felt there was some percentage of longevity and damage that 

could go to our existing business.” (CX 2530 (Rona, Dep. at 231)). 

2255.	 Sigma’s SDP efforts also became more urgent after the “insulting” June 5, 2009 McWane 

offer (supra ¶ 2206), because it became apparent that McWane was unwilling to 

accommodate Sigma’s requests for Domestic Fittings supply. (CX 2523 (Bhattacharji, 

Dep. at 183-184) (after McWane’s unsatisfactory offer to Sigma in June 2009 of 

Domestic Fittings at 5% below published prices Sigma “went back to speeding up our 

review of how to make Fittings in the country”); Pais, Tr. 1761-1762 (“[S]omething like 

this made us even more to put somewhat more urgency if at all possible because it looked 

like they just were not keen to accommodate us at that point.”); CX 1993 at 002 (June 5, 

2009 Bhattacharji email “I am glad the uncertainty is over and we can hit the untraveled 

road - once again!”); CX 2523 (Bhattacharji, Dep. at 171-172) (Sigma began looking 

“very seriously” at domestic production when it found out Mexico and Korea would not 

qualify and McWane offered it only a 5% discount off published prices)). 

11.4.1.6	 Sigma Actively Pursued Domestic Fittings Production 

Throughout the Summer of 2009 and Until It Signed the MDA 

with McWane 

2256.	 Sigma actively pursued Domestic Fittings production throughout the summer of 2009 and 

until it signed the MDA with McWane (Infra ¶¶ 2257-2268). 

2257.	 As of July 11, 2009, Sigma was still actively pursuing its “SDP” plan to produce 

Domestic Fittings, although it was proceeding more “deliberately and thoughtfully” as 

Sigma had renewed “meaningful” negotiations with McWane for Domestic supply by 

this point in time. (Rona, Tr. 1538; CX 0240 (Rona emailing model); see also Pais, Tr. 

1780 (Sigma had not slowed its SDP plans as of July 16, 2009); CX 1505 at 001 (July 16, 

2009 Pais email to Sigma’s top managers that, “[O]ur SDP plans are also proceeding – 

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however more deliberately and thoughtfully – even as we also are negotiating for a 

meaningful buy-sell for the FTGs with Tyler.”) 

2258.	 On August 11, 2009, Sigma received a quote from Metalfit for the production of tooling 

to be used in Sigma’s Domestic Fittings production. (CX 0257 at 001; Rona, Tr. 1593­

1594). 

2259.	 Mr. Box forwarded the Metalfit quote to members of Sigma’s SDP team, indicating that 

Metalfit could produce all of the tooling for Fittings in the 14” - 24” range for 

approximately $500,000, and noting that “[t]his number from [Metalfit] looks much 

better than I expected.” (CX 0257 at 001). Mr. Box suggested that someone in Sigma’s 

headquarters might further analyze the quotation “if we see that the MDA is not going to 

happen.” (CX 0257 at 001; Rona, Tr. 1595-1596). 

2260.	 As of August 17, 2009, Sigma was still actively pursuing entry into the Domestic Fittings 

market by production of its own Domestic Fittings. (Rona, Tr. 1705-1706). In an email 

to Sigma’s OEM customer U.S. Pipe, Mr. Rona wrote that Sigma “still ha[s] not 

finalized” its decision on whether to invest in its own Domestic production, and would 

“continue to try every option to make sure no stone is unturned” in pursuit of offering 

Domestic Fittings to its customers. (CX 0258 at 003; Rona, Tr. 1540-1542). 

2261.	 By September 7, 2009, Sigma continued to pursue its Domestic Fittings production plan, 

but that plan had become a “backup plan” to McWane’s alternate approach of sourcing 

Domestic Fittings through McWane. (CX 0899 at 001 (Rona email regarding Sigma’s 

need to decide whether it is still pursuing Domestic production “as a long term backup 

plan for our MDA with McWane”); Rona, Tr. 1545-1547). 

2262.	 Mr. Box continued pursuing Sigma’s production of Domestic Fittings, including 

production of large-diameter Domestic Fittings, until Sigma management decided to 

abandon the project in Fall of 2009. (CX 2524 (Box, Dep. at 47-48, 87)). 

2263.	 Mr. Box had substantially completed his investigation of domestic production by 

September 2009. (CX 2524 (Box, Dep. at 86)). 

2264.	 By September 21, 2009, Sigma had successfully completed a series of trials casting largediameter Domestic Fittings using the “lost foam” method, and had actually cast several 

fittings in the United States using this method. (CX 0282 at 006-018; CX 2530 (Rona, 

Dep. at 228) (Box presentation is a fair representation of what occurred); Rona, Tr. 1475­

1477 (Sigma successfully cast Domestic Fittings using the lost foam method)). 

2265.	 Sigma was ready to enter domestic production “once the switch was flipped.” (CX 2523 

(Bhattacharji, Dep. at 54); CX 0282 at 001 (September 21, 2009 email from Box to Rona 

attaching a report on the trials and asked, “Do we proceed with LF regular 

production?”)). 

2266.	 Mr. Pais testified under oath that, absent an agreement with McWane, Sigma would have 

entered the domestic market. (CX 2527 (Pais, IHT at 179-180) (“[I]f [McWane] stuck 

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with that initial offer [of a 5% discount] . . . then we certainly would have gone another – 

to Plan B, which is our [domestic] production.”)). 

2267.	 Mr. Pais’s sworn testimony that Sigma would have entered the Domestic Fittings market 

absent the MDA is confirmed by contemporaneous documents. In a letter announcing the 

MDA to its customers, Sigma stated, “[a]s a leading supplier of AWWA Fittings over the 

last 25 years, Sigma has adequate engineering and production expertise and the needed 

resources to develop and manufacture a competitive range of AWWA Fittings using a 

few quality foundries in USA,” and stated that although Sigma was “confident of the 

above [SDP] option.” (CX 0803 at 001 (emphasis added); Pais, Tr. 1820). 

2268.	 The MDA is what caused Sigma to stop its pursuit of Domestic Production. (See infra 

§ 11.8.1). 

11.4.2 Sigma’s Customers Supported Its Entry into the Domestic Fittings 

Market, and Sigma Provided Assurances to Customers 

2269.	 Sigma’s customers supported its entry into the Domestic Fittings market, and Sigma 

Provided assurances to its customers that it would provide them with a viable Domestic 

Fittings solution. (Infra ¶¶ 2270-2274). 

2270.	 Sigma’s Distributor customers were demanding Domestic Fittings, and Sigma assured its 

customers that it would have Domestic Fittings available. (CX 2524 (Box, Dep. at 61­

62)). 

2271.	 Sigma’s OEM customers were supportive of Sigma entry plans. In a May 4, 2009 

memorandum to the Sigma Board, Mr. Pais reported on Sigma’s review of the feasibility 

of Domestic Fittings production, and stated that Sigma had the “fullest support” from 

OEM partners ACIPCO and U.S. Pipe, and that Sigma was using its close relationship 

with Metalfit. (CX 0214 at 005). 

2272.	 Mr. Rona also believed that ACIPCO would lend support to Sigma’s Domestic entry 

efforts by encouraging their affiliated foundries to “be expedient, be fair, work with us 

well” when they were approached by Sigma to produce Domestic Fittings. (Rona, Tr. 

1511-1512; CX 0978 at 002 (noting the “ACIPCO factor”)). 

2273.	 U.S. Pipe and ACIPCO were two important OEM customers that owned foundries and 

had expertise casting fittings domestically, and were working cooperatively with Sigma 

as part of its effort to set up domestic production. (CX 2527 (Pais, IHT at 140)). 

2274.	 Sigma wanted to retain the loyalty of its customers, and reassured them, including its 

large OEM customers ACIPCO and U.S. Pipe, that it was “looking at different options” 

for Domestic Fittings supply and would “come up with a viable option.” (Pais, Tr. 1754­

1756; CX 2527 (Pais, IHT at 144) (“We would keep telling them, look, we will have an 

answer”); CX 2527 (Pais, IHT at 145) (“Q. But you were testifying, sir, that you were 

assuring or telling your customers no matter what -- A. We’ll have a solution.”); CX 

0511 at 001 (notes taken by Mr. Thees of Ferguson of a June 2009 meeting with Rybacki 

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in which Rybacki told him Sigma was looking to produce Domestic Fittings by spring of 

2010); CX 2503 (Thees, IHT at 209-211) (discussing CX 0511)). 

11.4.3 The SDP Team Modeled Costs of Domestic Fittings Production and 

Determined That Sigma Could Earn Sufficient Profit Margins 

2275.	 Sigma’s SDP team modeled costs of production and determined that Sigma could earn 

sufficient profit margins in the Domestic Fittings market. (Infra ¶¶ 2276-2281). 

2276.	 The SDP team modeled the costs of producing Domestic Fittings using estimates of key 

variables, including the size of the Domestic-only market, production costs (based on 

quotes from numerous domestic foundries), and market prices, and arrived at estimated 

gross margins for the various size categories of Fittings. (CX 2529 (Rona, IHT at 22-23); 

Rona, Tr. 1522-1523, 1533-1534, 1535-1537; CX 0237 at 001, 002 (estimating margins); 

CX 0090 at 001 (discussing cost inputs for model); CX 0240 at 001, 003 (Rona 

transmitting July 11, 2009 version of model, listing estimated supplier costs)). 

2277.	 Sigma developed a budget estimating the cost of tooling for Domestic Fittings 

production. Tooling costs represented the bulk of all capital expenditure associated with 

Sigma’s entry into Domestic Fittings, and Sigma estimated that it could develop the 

tooling required for the full line of approximately 700 Domestic Fittings items for 

approximately $3 to $5 million. (Rona, Tr. 1517; CX 2530 (Rona, Dep. at 214-215) 

(“[T]he bulk of all the capital expenditure would be in actual tooling, so the budget of 

three to five million likely covered just tooling and equipment related to manufacturing 

the fittings and foundries.”)). 

2278.	 As of July 3, 2009, Sigma concluded that it would be able to earn a 15-18% margin in the 

domestic production of small diameter Domestic Fittings, and that the Mueller Albertville 

foundry (a U.S. Pipe affiliate) would be a “strong and reliable” partner that “can be 

counted on” even when the industry volumes increase. (CX 0237 at 001 (email from Mr. 

Rona to SDP team updating on status of SDP activities following SDP meeting); Rona, 

Tr. 1522-1525). 

2279.	 As of July 3, 2009, Sigma had concluded that it would be able to earn a 55% margin on 

the domestic production of medium diameter Domestic Fittings, and that American 

[ACIPCO] would be an “extremely willing” partner that can be “a very stable piece of 

the puzzle.” (CX 0237 at 002; Rona, Tr. 1526, 1528). 

2280.	 As of July 3, 2009, Sigma had concluded that it would be able to achieve “good margins” 

on large diameter Domestic Fittings, regardless of whether Sigma produced them through 

the lost foam or the cope and drag method. (CX 0237 at 003; Rona, Tr. 1529-1530). 

2281.	 Sigma recognized the risk that producing Domestic Fittings through independent 

foundries could subject Sigma to increased prices when the foundries became busier in 

the future. However, Sigma believed that its strong existing relationship with ACIPCO 

and the Mueller Albertville foundries would mitigate this risk. (Rona, Tr. 1525-1527 

(ACIPCO would be “the same with Mueller Albertville . . . [t]hey would treat us fairly”); 

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CX 0237 at 001-002 (asserting that ACIPCO would be a reliable partner because their 

corporate directive was “to roll out the red carpet to make the project work”)). 

11.4.4 Sigma Had the Financial Resources to Enter Domestic Fittings 

2282. 

2283.	 In the 2009 time period, Ares Capital was the second lien holder of Sigma’s debt. (CX 

2284. 

continued to be strong, throughout the year, even as the volumes have been weak.”); Pais, 

Tr. 2230)). 

2285. {

 (Pais, Tr. 2206-2207, in 

camera; CX 1749 at 005, in camera). 

2286.	 {

Production 

Sigma had access to sufficient financial resources to enable it to enter the production of 

Domestic Fittings. (Infra ¶¶ 2283-2297). 

2523 (Bhattacharji, Dep. at 198)). Ares Capital attended Sigma’s quarterly BOD 

meetings. (CX 2523 (Bhattacharji, Dep. at 200)). 

Sigma was well positioned to finance its Domestic Fittings sourcing initiative. (CX 0313 

at 004 (Pais February 9, 2009 letter to Ares Capital: “Our [Gross Margins] have 

(Pais, Tr. 2211, in camera; CX 1749 at 014, 

in camera). 

2287.	 {

 (Rybacki, Tr. 3730­

3731, in camera 

; Pais, Tr. 2212-2213, 

in camera { }; 

CX 2523 (Bhattacharji, Dep. at 258-259, 163) (Sigma was aware of its debt covenants 

and that it may have issues meeting them in January 2009 when it began planning 

domestic production)). 

2288. { 

} 

(Pais, Tr. 2211, in camera; CX 1749 at 015, in camera; CX 2523 (Bhattacharji, Dep. at 

169-171); CX 1998 at 002 (Sigma April 2009 board minutes)). 

2289.	 In April 2009, Mr. Bhattacharji suggested that Sigma consider acquiring Neenah Foundry 

despite his knowledge of Sigma’s debt covenant status. (CX 2523 (Bhattacharji, Dep. at 

172-173)). 

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2290. 

2291. 

2292. 

2293. 

2294. 

2295. 

2296.
 

In the summer of 2009 Sigma began discussions with Ares Capital about buying back 

debt; Sigma investors and Frontenac bought back debt from Ares in 2010. (CX 2523 

(Bhattacharji, Dep. at 200); RX-682 (Bhattacharji, Dep. at 255-256). 

{ } (Pais, Tr. 2185, 

in camera). 

{

 (Pais, Tr. 2212, in 

camera). 

At the same time it was pursuing its SDP plans in 2009, Sigma also entered into more 

serious discussions about acquiring Star. Acquiring Star would have been much more 

expensive than implementing Sigma’s SDP plan, but Sigma’s financial situation did not 

prevent Sigma from pursuing that possibility. (Rybacki, Tr. 3596-3597 (Sigma discussed 

a merger or acquisition transaction between Sigma and Star with its equity investor, 

Frontenac around the end of 2008 or during 2009)). 

If debt financing were not available to execute the SDP plan, Sigma’s shareholders would 

have provided the necessary equity financing. (CX 2527 (Pais, IHT at 180-181) 

(Frontenac and Mr. Pais himself would have provided the financing -- “I believe in 

Sigma so I would definitely invest”; “If we did not have any alternative to the McWane 

route, we certainly would have, as I said, stumbled along with domestic production. We 

would have brought in the finances”); Pais, Tr. 1782-1785; see also Pais, Tr. 2221, in 

camera). 

On July 27, 2009, following the July 15, 2009 Sigma board meeting, Walter Florence 

sent an email to Sigma management regarding strategy for upcoming lender meetings. In 

this email, he noted that Sigma’s liquidity was fine, that it had recently received an 

injection of capital from investors and shareholders, and that these investors and 

shareholders – which included Mr. Pais himself – were prepared to invest $7.5 million 

more to fund the SDP program and other initiatives: 

Investors and rollover shareholders invested $5.5m in March 2009 

to help with liquidity. This time, liquidity is fine. Investors and 

rollover shareholders are prepared to invest up to $7.5m in equity 

but not to pay down debt and add to liquidity but rather to fund 

domestic sourcing initiative and to fund the strategic Business 

additions which will enhance credit quality and help Sigma grow 

and build equity value. 

(CX 0099 at 007; Pais, Tr. 1783-1785 (“[T]here was general consensus from all 

shareholders to try and help the business any way we could.”)). 

Sigma investors were prepared to invest $7.5 million in equity into Sigma to ease capital 

concerns. The investors preferred that Sigma use that capital to grow Sigma – such as 

through the production of Domestic Fittings – rather than to pay off debt. (Pais, Tr. 

1782-1785; CX 0099 at 007; CX 2528 (Pais, Dep. at 387-390)). 

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2297.	 The reason that Sigma’s investors preferred Sigma to invest equity into growth projects 

like the production of Domestic Fittings was that production of Domestic Fittings, unlike 

paying down debt, was a growth opportunity for Sigma. (Pais, Tr. 1786-1787; CX 0099). 

11.4.5 Sigma’s Domestic Production Plan Had the Support of Sigma’s 

Board, Investors, and Lenders 

2298.	 Sigma’s Board, investors, and lenders supported its plan to enter Domestic Fittings 

production. (Infra ¶¶ 2299-2311). 

2299.	 Sigma knew of the challenges involved in domestic production as early as May 2009, and 

continued to pursue it. (CX 2523 (Bhattacharji, Dep. at 101-102)). 

2300.	 Sigma’s new ownership and board approved of Sigma’s “SDP” plan and were “highly 

supportive and . . . motivated by the strategic value – of targeting the ‘domestic’ 

segment.” (CX 0978 at 001). 

2301.	 For example, on May 16, 2009, Walter Florence of Sigma’s shareholder Frontenac wrote 

of Sigma’s SDP plan: “As an investor, I am all for your approach.” (CX 0308 at 001; 

Pais, Tr. 1753-1754 (“They wanted to support us whatever the most pragmatic and 

feasible option was.”); CX 2528 (Pais, Dep. at 342) (noting that Sigma never sought 

board approval of the SDP plan because it signed the MDA)). 

2302.	 As Sigma worked on developing its SDP plan in May 2009, there were no discussions 

about any upper or lower investment limits from Sigma’s shareholders. Sigma was “just 

desperately looking at whatever options that we could have and tried to shape them up.” 

(Pais, Tr. 1759-1760; CX 2527 (Pais, IHT at 135) (neither the Sigma board nor Frontenac 

set an upper limit on the amount of permissible capital investment for Domestic entry)). 

2303.	 In May 2009, Sigma updated the Board of Directors with information about the time and 

expenditure that would be involved in entering domestic production, and the Board was 

still supportive of the SDP plans. (CX 2527 (Pais, IHT at 132) (“Well, they certainly 

endorse whatever is our recommendation, the best option. At this point really we were 

updating them as to various efforts of different level, six to seven levels, some sequential, 

how to meet this threat, the Buy America threat, and at that point in May, it looked like 

going to produce some domestic line was our only option, and so we were updating them 

that it would require a fair amount of capital expenditure and the time, et cetera.”)). 

2304.	 Sigma’s board and its SDP team were aware of Sigma’s financial position throughout the 

summer of 2009 as Sigma pursued a its plan for production of Domestic Fittings. (Pais, 

Tr. 1760). 

2305. {

 (CX 1997 at 008, 

in camera; CX 2523 (Bhattacharji, Dep. at 194) ($5 million for SDP was “a placeholder 

for the board.”)). 

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2306.	 In July 2009, Sigma “came to the conclusion that it [Sigma Domestic production] would 

be a tough investment but something that we had to make if this is the only option that we 

would go ahead with.” (CX 2527 (Pais, IHT at 158); CX 0240 (July 11, 2009 SDP 

Domestic Fittings budget); CX 0246 (July 20, 2009 SDP Domestic Fittings budget); Pais, 

Tr. 1762-1765 (discussing CX 0240)). 

2307.	 The SDP team was not given a budget, and was never told to stop its efforts because the 

project would be too expensive. (CX 2530 (Rona, Dep. at 217-218)). Frontenac never 

asked Sigma to stop its SDP plans or activities due to the expense involved. (CX 2530 

(Rona, Dep. at 330); Rybacki, Tr. 3728 (Frontenac was kept apprised of Sigma’s SDP 

efforts, and never said “we shouldn’t go forward with this”)). 

2308. On July 13, 2009, Mr. Pais sent an internal email responding to a customer’s inquiry 

regarding Sigma’s ARRA compliance: 

We are intensely pursuing our SDP plans for both FTGs and 

[restraints]. But, it’s a lot of work and Capex$ too! In fact, we 

plan to present a brief outline during our BOD meeting 7/15. 

(CX 0241 at 001; Pais, Tr. 1768-1769). 

2309.	 Mr. Bhattacharji discussed Sigma’s “SDP” plan at the Sigma Board of Directors meeting 

on July 15, 2009. (CX 2006 at 002 (draft minutes); CX 2523 (Bhattacharji, Dep. at 196­

197)). Representatives from Ares Capital, Sigma’s secondary lender, attended that 

meeting. (CX 2523 (Bhattacharji, Dep. at 197-199)). 

2310.	 Mr. Pais does not recall Sigma’s secondary lender Ares Capital or its senior lenders ever 

advising Sigma that it would not approve Sigma’s investment in the production of 

Domestic Fittings. (Pais, Tr. 1774-1778; CX 0957 (July 24, 2009 email from McGivern 

to Pais advising Pais to inform lenders that Sigma would need to invest $2.5 million to $4 

million in Domestic production)). 

2311.	 { } 

(CX 1745 at 017, in camera). 

11.5	 McWane Decided to Sell Domestic Fittings to Sigma as an Alternative to 

Sigma Entering the Domestic Fittings Market 

11.5.1 Sigma Communicated Its SDP Plans for Independent Entry to 

McWane 

2312.	 In Spring 2009, Mr. Pais told Mr. McCullough and Mr. Page that Sigma would pursue its 

own Domestic Production if McWane did not supply it with Domestic Fittings. (CX 

2527 (Pais, IHT at 105-106)). 

2313.	 Mr. McCullough met with Mr. Pais in April 2009. After that meeting, Mr. McCullough 

believed that Sigma had the ability to enter the Domestic Fittings market. Specifically, 

Mr. McCullough believed that Sigma “did have access to the needed capital, but they also 

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had the contacts and the talent and they’ve been importing for a very long time.” (CX 

2479 (McCullough, Dep. at 76-78); see also supra ¶ 1520 (describing April 28, 2009 

meeting between McCullough and Pais)). 

2314.	 In mid-July 2009, Mr. Pais reported that he had directly informed Mr. Page of Sigma’s 

plans to develop its own Domestic Fittings capability. (CX 1018 at 001) (July 13, 2009 

email from Mr. Pais to Mr. McGivern explaining that Mr. Pais’s negotiations included 

“My own with the CEO announcing our ‘SDP’ plans...”)). 

2315.	 Mr. Rona also communicated directly to McWane that Sigma was prepared to enter the 

Domestic Market absent an agreement, telling Mr. Tatman in mid-July that “Sigma’s 

preference is to work something out with McWane but we are committed and have the 

financial backing to move forward either way.” (CX 0568 at 003 (Tatman presentation 

recounting Rona statements); Tatman, Tr. 760-761; CX 2530 (Rona, Dep. at 218-220) 

(“I’m sure I made it clear to McWane”)). 

11.5.2 McWane Entered into the MDA with Sigma Because McWane 

Believed That Otherwise Sigma Would Independently Enter the 

Domestic Fittings Market 

2316.	 McWane entered into the MDA with Sigma because McWane believed that Sigma would 

otherwise enter the Domestic Fittings market independently. (Infra ¶¶ 2317-2335). 

2317.	 Even before Star’s announced entry into the Domestic Fittings market, McWane viewed 

Sigma as being in a “much better position” to enter the Domestic Fittings market than 

Star, in part because of its existing OEM relationships (with ACIPCO and U.S. Pipe) and 

its access to financial backing. (CX 0067 at 003 (May 2009 McWane presentation on 

McWane’s potential strategic reactions to potential new entry in the Domestic Fittings 

market); Tatman, Tr. 618-619). 

2318.	 McWane viewed Sigma’s entry into the Domestic Fittings market to be more likely after 

Star announced its entry at the June 15, 2009 AWWA conference. (CX 0076 at 008 

(“Sigma is now in a position where they will feel the need to react. . . . Rybacki said at 

AWWA their program would announce[] in 4 weeks”); CX 2479 (McCullough, Dep. at 

103-104) (explaining that McWane believed Sigma would announce entry plans within 

four weeks of AWWA)). 

2319.	 After Star announced its intended entry into Domestic Fittings, McWane believed that 

Sigma would either enter on its own as Star had done, or push to be set up as a master 

distributor of McWane’s Domestic Fittings. (CX 2479 (McCullough, Dep. at 100)). 

2320.	 McWane believed that Sigma wanted to enter the Domestic Fittings market. (Response 

to RFA at ¶ 34 (McWane “believed Sigma wished to obtain access to domesticallymanufactured fittings after ARRA’s enactment, either by manufacturing, through 

sourcing, or pursuant to a purchasing arrangement with McWane”); (CX 1179 at 002 

(Tatman October 2009 Q&A document circulated to McWane’s sales force: “in the 

absence of the MDA with TylerUnion, Sigma was going to develop their own domestic 

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sourcing options to the extent they could”); Tatman, Tr. at 810 (confirming that he 

communicated Sigma’s imminent entry to his sales staff)). 

2321.	 The likelihood of Sigma entering the Domestic Fittings market was part of the discussion 

within McWane as it considered whether to sell Domestic Fittings to Sigma. (CX 2485 

(Walton, Dep. at 72); CX 0329 at 001 (McWane email stating that Mr. Tatman’s main 

intent in discussion with Mr. Rona of Sigma was “to flush out where SIGMA is in their 

process of securing domestic production sources.”); Response to RFA at ¶ 35 (in 

deciding whether to sell Domestic Fittings to Sigma, McWane considered the possibility 

of Sigma entering the Domestic Fittings market by manufacturing its own Domestic 

Fittings or sourcing them from a third-party foundry)). 

2322.	 Mr. Walton, McWane’s former senior vice president, admitted that there “probably were” 

discussions within McWane that Sigma was more likely to enter the Domestic Fittings 

market after Star announced its entry. (CX 2485 (Walton, Dep. 60-61) (explaining that 

Star’s announcement “stimulated discussions” regarding selling Domestic Fittings to 

Star); CX 0074 at 002 (June 24, 2009 email from Mr. McCullough to Mr. Tatman and 

Mr. Walton seeking Mr. Tatman’s thoughts on “Sigma’s reaction to [Star’s entry] and 

their future positioning, develop their own line as Star does? Align with McWane? 

Establish buy/sell relationship with Star that is better than our last offer?”)). 

2323.	 For example, in a June 24, 2009 email, Mr. McCullough asked for Mr. Tatman’s opinion 

on Sigma’s likely reaction to Star’s announced entry into the Domestic Fittings market: 

Sigma’s reaction to [Star’s entry] and their future positioning, 

develop their own line as Star does? Align with McWane? 

Establish buy/sell relationship with Star that is better than our last 

offer? 

(CX 0074 at 002). 

2324.	 Mr. Tatman believed that there was a “probability” that Sigma would enter the Domestic 

Fittings market because Sigma communicated that intention to McWane. (CX 2483 

(Tatman, IHT at 175) (“[Y]ou’ve got SIGMA coming in saying that they’re going to do 

something, and it’s a little bit of chest-beating. I think SIGMA even sent us some 

information about it’s not good for the Industry with over capacity if that happens. They 

say that they’re coming in. We don’t know if they’re really doing it. So it’s a 

probability. Is what they’re saying true? Are they going to execute on that? Yes or no, I 

don’t know.”)). 

2325.	 Mr. Tatman observed that McWane selling Domestic Fittings to Sigma would 

“[e]liminate the probability they will secure another domestic source option.” (CX 0067 

at 003 (Tatman May 26, 2009 strategy presentation also noting that McWane would 

“[r]etain the full margin for Domestic product within McWane” if McWane chose not to 

supply Sigma). 

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2326.	 Mr. Tatman further believed that McWane selling Domestic Fittings to Sigma was a 

“greater financial benefit” than allowing Sigma to independently enter the Domestic 

Fittings market: 

[if Sigma is] truly committed to make the investment level required 

to be a viable competitor regardless of our actions, then producing 

for [Sigma] is probably of greater financial benefit to our business 

then having them source elsewhere. 

(CX 0076 at 008 (Tatman June 29, 2009 strategy presentation)). 

2327.	 Mr. Tatman noted on July 27, 2009, “the correct decision really depends on whether on 

their own Sigma truly does have the resolve and financial backing to make a long term 

strategic commitment to being a supplier of domestic products.” (CX 0465 at 010). 

2328.	 After MDA negotiations were restarted in July 2009, Mr. Pais had observed that 

McWane’s “assessment that Star and hence SIGMA may indeed succeed with domestic 

production, after all, may be prompting them to relent and work with us.” (CX 0241 at 

001 (Pais email, July 13, 2009)). 

2329.	 Mr. Pais believed that McWane was more amenable to offering Sigma a buy-sell 

agreement in part because McWane knew that Sigma had brought a Domestic Fitting to 

the June 2009 AWWA show in San Diego, and because Star had announced its Domestic 

Fittings plans at the show as well. (Pais, Tr. 1770-1771; CX 0241 at 001). 

2330.	 On July 13, 2009, Mr. Pais informed Mr. McGivern that he believed McWane would be 

motivated to enter an agreement with Sigma to avoid having Sigma add new capacity to 

the Domestic Fittings market: 

[T]he high profile publicity by Star as to their domestic plans and 

our own (low key) plans may have finally convinced [McWane] 

that addition of new capacity isn’t good for them or the 

industry . . . . It’s wait and see . . . one step at a time, chess 

play . . . .” 

(CX 1018 at 001; Pais, Tr. 1774 (“[I]t was just my assessment that all these factors 

would finally sort of persuade them to come up with an agreement to accommodate 

us.”)). 

2331.	 On July 16, 2009, in response to an update of Star’s progress in entering the Domestic 

Fittings market, Mr. Pais wrote to Sigma’s M20 team that Star’s very public entry 

strategy “may induce McWane to think that they may have long term competition even in 

the BA segment and may create some unique market realignment and hence opportunities 

for us.” (CX 1505 at 001; Pais, Tr. 1779-1780). 

2332.	 Both Mr. Tatman and Mr. McCullough viewed the MDA as an “insurance policy” against 

potential Sigma entry, and it was on this basis that Mr. McCullough approved McWane’s 

proposed MDA terms. (CX 1184 at 001 (Tatman August 18 email); CX 2353 at 004 

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(McCullough statements at August 20 meeting); CX 2484 (Tatman, Dep. at 211) 

(admitting that he communicated that the MDA was an “insurance policy” against 

Sigma’s domestic entry)). 

2333.	 As Mr. Tatman had observed in his May 26, 2009 presentation, one of the two key 

factors in considering whether to sell to Sigma was “[h]ow legitimate of a risk is there” of 

Sigma “successfully introducing a Domestic product line.” (CX 0067 at 004, 002; 

Tatman, Tr. 627-629; supra ¶ 2195). 

2334.	 By August 2009, Mr. Tatman had some reservations about the likelihood of Sigma 

entering the Domestic Fittings market, but Mr. McCullough believed “what Star is able to 

do, Sigma is able to do, also.” (CX 2479 (McCullough, Dep. 131-132); CX 1184). 

2335.	 In October 2009, after reaching agreement with Sigma on the MDA, Mr. Tatman 

admitted in a Q&A document circulated to his sales force that “the reality of the situation 

is that in the absence of the MDA with [McWane], Sigma was going to develop their own 

domestic sourcing options to the extent they could.” (CX 1179 at 002; Tatman, Tr. 807, 

810). 

11.6	 Sigma and McWane Negotiated the MDA to Supplant Sigma’s Independent 

Entry 

2336.	 In late June and early July 2009, after Star announced its entry into the Domestic Fittings 

market, McWane and Sigma resumed discussions regarding a Domestic Fittings supply 

agreement. (Tatman, Tr. 747-749). 

2337.	 Between June 30 and July 2, 2009, Mr. Tatman suggested to Mr. Rona that he make a 

counterproposal to McWane’s June 5, 2009 Domestic Fittings supply offer. Mr. Tatman 

also communicated that McWane would require two conditions: First, McWane would 

have to be Sigma’s exclusive supplier of Domestic Fittings; and second, the Domestic 

Fittings would have to be branded Tyler/Union, not Sigma (i.e., it would not be a privatelabel arrangement). (CX 0329 at 001 (Tatman email to McCullough and Walton 

reporting on conversation); Tatman, Tr. 747-748). 

2338.	 On July 2, 2009, Mr. Tatman reported to Mr. McCullough and Mr. Walton regarding his 

conversation with Mr. Rona of Sigma: 

Mitchell Rona called and we had a fairly lengthy discussion. I can 

fill in the details if needed but the takeaway is that Mitchell/Sigma 

will come back to us with a counter proposal under the conditions 

that we would be their exclusive supplier of Domestic fittings and 

the product would be branded Tyler/Union not Sigma. My main 

intent was to flush out where Sigma is in their process of securing 

Domestic production sources and I was somewhat surprised by his 

non-resistance to those two conditions. If Sigma’s counter does 

comply with those two conditions it would be pretty good 

indication that at present they don’t have a very strong hand to 

play. 

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(CX 0329 at 001; Tatman, Tr. 747). 

2339.	 On July 14, 2009, Mr. Rona transmitted Sigma’s counterproposal to Mr. Walton and Mr. 

Tatman, and noted, “As promised please find a simple but straight forward proposal from 

Sigma for master distribution of your domestic fittings. I hope McWane will find this 

offer favorable and respond with further discussions about how we can move this 

forward.” (CX 0243 at 001; Rona, Tr. 1560-1561). 

2340.	 Sigma’s counterproposal consisted of a one-page term sheet titled “Master Distributor 

Agreement for AWWA domestic pipe fittings” and described an agreement under which 

“Sigma would have access to Tyler, Union, and Clow branded domestically produced 

fittings for a minimum of 3 years beginning August 1st 2009.” (CX 0243 at 002; Rona, 

Tr. 1560-1561). The counterproposal specified price multipliers at which McWane 

would sell the Domestic Fittings to Sigma, and included an exclusivity provision that 

provided as follows: 

Sigma in turn will not seek any other sources either directly or 

through 3rd party for the production or distribution of domestic 

fittings with the following exceptions -- Sigma shall have the right 

to produce or purchase fittings which are outside the McWane 

domestic range or which cannot be provided by McWane within a 

reasonable and customary time frame. 

(CX 0243 at 002 (emphasis added); Rona, Tr. 1560-1561). 

2341.	 In a July 21, 2009 email to McWane’s CFO Mr. Nowlin, Mr. Tatman described the 

ongoing discussions with Sigma as a “choice of evils”: 

We are having some discussions with Sigma as to providing them 

with Domestic fittings as an alternative to them securing their own 

source option such as Star has done. 

This is certainly a choice of evils as having more Domestic 

suppliers doesn’t really increase the size of the pie. Our ultimate 

decision will be based upon: 

	 If we say No, would Sigma really spend the $ required to 

execute a domestic product option 

	 Would providing Sigma with access to Tyler/Union domestic 

[product] help us either better protect our brand/share against 

Star or promote more stable market prices 

(CX 0729 at 001 (emphasis added); Tatman, Tr. 754-756; CX 2481 (Nowlin, Dep. at 

138-139) (calling the idea of having more domestic suppliers does not really increase the 

size of the pie “a fairly obvious statement.”)). 

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2342.	 In the July 27, 2009 draft presentation sent to Messrs. McCullough and Walton, Mr. 

Tatman summarized “Recent Sigma updates,” which included, among others, the fact that 

Sigma recognizes the market issues that can occur from over capacity in the market: 

Sigma recognizes the market issues that can result from over 

capacity. 

Sigma’s preference is to work something out with McWane but we 

are committed and have the financial backing to move forward 

either way. 

(CX 0568 at 001, 003; Tatman, Tr. 759-761). 

2343.	 In the July 27, 2009 draft presentation, Mr. Tatman also listed “other inputs,” including 

the fact that Sigma was now aware of McWane’s intent to require Sigma to enforce its 

pending Exclusive Dealing Policy through the MDA: 

Mitchell [Rona] now understands that we will most likely require 

“all” distributor customers to be exclusive to the Tyler/Union 

brand for Domestic fittings. That seemed to catch him by surprise. 

He said he understood and would discuss internally. 

. . . 

My sense is they don’t yet have a cost-competitive option for the 

below 24”. The DISA product quote from last year is probably a 

concern for them as to our cost position. 

(CX 0568 at 003; Tatman, Tr. 761-762). 

2344.	 In an updated presentation emailed to Mr. McCullough and Mr. Walton and titled “Sigma 

Domestic Review Session - 7/28/09,” Mr. Tatman recommended selling McWane’s 

Domestic Fittings to Sigma on an exclusive basis at a 20% discount off published 

multipliers. (CX 0170 at 010; CX 0122 at 001 (draft McWane counterproposal to supply 

Sigma at a 20% discount off published multipliers, with Sigma to procure exclusively 

from McWane and only sell to customers that are in an exclusive supply relationship with 

McWane Domestic Fittings)). 

2345.	 On July 29, 2009, McWane formally responded to Sigma’s July 14, 2009 

counterproposal for the sale of McWane’s Domestic Fittings to Sigma. McWane’s offer 

letter: 

	 Offered to sell Domestic Fittings to Sigma at a 20% discount 

off published multipliers, rather than its initial offer of 5%; 

	 Included an exclusivity requirement and the prohibition on 

sales to Distributors who are not in an exclusive supply 

relationship with McWane; 

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	 Required Sigma to agree to sell at McWane’s suggested 

published price levels; and 

	 Had a term of three years unless earlier terminated by 

agreement or for cause. 

(CX 1805 at 002; CX 0565 at 001, 002). 

2346.	 On August 4, 2009, Mr. Rona responded to Mr. Tatman’s July 29, 2009 offer letter by 

proposing a price compromise and objecting to the provision that required Sigma to 

enforce McWane domestic exclusivity on Distributors because it was “vague and 

worrisome!” (CX 0461 at 001, 002)). 

2347.	 In mid-July 2009, Sigma and McWane had considered a three year term for the MDA. 

(CX 0566 at 001-002 (“SIGMA would have access to Tyler, Union, and Clow branded 

domestically produced fittings for a minimum of three years beginning August 1st, 

2009”); CX 0122 at 001 (draft letter identifying McWane’s core terms to include 3 year 

term of agreement); CX 2479 (McCullough, Dep. at 113, 124-125)). 

2348.	 By August 17, 2009, however, Mr. Tatman recommended “not firmly locking ourselves 

into a long term agreement,” and only pursuing a one year term. (CX 2479 (McCullough, 

Dep. at 133-134); CX 1184 at 002). 

2349.	 On August 18, 2009, Mr. Tatman sent an email to Mr. McCullough and Mr. Walton with 

an attached presentation that provided an update on the status of negotiations with Sigma. 

Mr. Tatman was “leaning towards not throwing too much money” at what he referred to 

as an “insurance policy” against Sigma’s entry, noting that he is “not picking up any 

strong sense that they have a strong alternate path at this point that they’d be willing to 

invest significant $ into.” (CX 1184 at 001; Tatman, Tr. 771-772, 783-785). 

2350.	 In his August 18, 2009 cover email to his presentation, Mr. Tatman reported that he and 

Mr. Rona were near final agreement, with the discount percentage and duration of the 

agreement being the final issues. (CX 1184 at 001-002; Tatman, Tr. 771-772). 

2351.	 In Mr. Tatman’s August 18, 2009 presentation, Mr. Tatman reported on a “pro forma” 

analysis that had concluded that McWane would lose approximately 5% of gross profit 

margin by selling Domestic Fittings to Sigma under the MDA. (CX 1184 at 003; 

Tatman, Tr. 778). 

2352.	 Mr. Tatman’s August 18, 2009 presentation also provided an update on two 

conversations Mr. Tatman had with Mr. Rona after Sigma received McWane’s July 29, 

2009 offer letter: 

	 Sigma has now agreed in principle to our requirement for 

Distributor exclusivity . . . 

	 Sigma has agreed in principle to selling at Published 

pricing . . . 

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	 Sigma has agreed to be exclusive to [McWane] for all sales to 

Distributors . . . 

	 I sense our distributor exclusivity requirement might have 

rocked them back a bit on what would be required to enter this 

market on their own 

(CX 1184 at 004; Tatman, Tr. 778-783). 

2353.	 Mr. Tatman’s August 18, 2009 presentation also made the following recommendations to 

Sigma’s August 3, 2009 proposal: 

	 Counter Sigma’s Aug 3rd response to our July 29th proposal 

with the following general elements: 

o	 Master Distributor relationship for McWane branded 

products 

o	 Retain 20% discount across the entire product line (3”­

48”); 

o	 Retain Brand exclusivity requirement for any of 

Sigma’s distribution customers; 

o	 Exclusive supply for all (3”-48”) items sold into “non 

OEM customers,” defined as a foundry manufacture of 

pipe and/or pipe and fittings; 

o	 State that the recommended annual rebate is 8%; and 

o	 1-year term with automatic 1-year extensions unless 

notification provided within 120 days of expiration 

date. 

(CX 1184 at 002). 

2354.	 At an August 20, 2009 meeting attended by Messrs. McCullough, Walton, Tatman, and 

Jansen, Mr. McCullough decided that McWane should sell Domestic Fittings to Sigma as 

an “insurance policy” against another Domestic Fittings entrant and “to continue to put 

pressure on Star.” Mr. McCullough then approved Mr. Tatman’s recommended 

response. (CX 2353 at 001, 004 (Walton meeting notes recording McCullough 

statements and approval); CX 2485 (Walton, Dep. at 37-43) (reviewing notes)). 

2355.	 The next day, on August 21, 2009, Mr. Tatman sent Mr. McCullough a modified 

“recommendation” slide at Mr. McCullough’s request for forwarding to Mr. Page. (CX 

0117 at 001). The modified recommendation slide contained an additional proposed 

term – that Sigma’s resale market pricing should be within 98% of published pricing on a 

weighted average basis – and contained a recommendation that McWane “remain very 

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firm” on the proposed terms unless “we uncover new evidence as to Sigma truly having 

an executable competitive option.” (CX 0117 at 002). 

2356.	 On August 24, 2009, Mr. Tatman sent an MDA letter of intent to Mr. Rona. (Rona, Tr. 

1571-1572; CX 1806 at 001; Pais, Tr. 1787 (confirming that Sigma had an agreement in 

principle with McWane based on the letter of intent)). McWane’s letter of intent 

followed most of McWane’s July 29, 2009 proposal, and had the following “core 

agreement elements:” 

	 “McWane shall be Sigma’s exclusive source of supply;” 

	 Sigma may only sell McWane’s Domestic Fittings to 

Distributors that are “in an exclusive relationship with 

McWane branded Product for all of their domestic 

requirements where McWane branded Products are available;” 

	 McWane will sell its Domestic Fittings to Sigma at an effective 

20% discount from McWane’s published pricing; 

	 Disputes will be handled through non-binding dispute 

resolution process; and 

	 The agreement will have a 1 year term, with automatic 1 year 

extension, unless either party provides 90 days notice prior to 

the anniversary date or McWane has cause. 

(CX 1806 at 002). 

2357.	 Additionally, in order to for Sigma to “maintain its Master Distributorship,” McWane’s 

August 24, 2009 letter of intent stated that Sigma was “expected” to: 

	 Support any pending or existing Buy American legislation; 

	 “Independently adhere” to McWane’s published pricing, and 

maintain prices at or above 98% of McWane’s published pricing 

on a weighted average basis; 

	 Provide significant Sigma customers with an appropriate rebate 

program, with the “expectation is an 8% annual rebate for 

customers with annual purchases of greater than $100,000;” and 

	 “Not introduce your own domestic product while the Master 

Distributorship is active.” 

(CX 1806 at 003 (also adding payment terms, minimum order requirements, and other 

general agreement terms)). 

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2358.	 Later on August 24, 2009, Mr. Rona expressed his concern to Mr. Tatman regarding the 

short duration of the MDA and the 20% pricing term. Because Mr. Tatman did not 

perceive Sigma as currently having viable alternative source of supply, Mr. Tatman did 

not see any “reason for any further concessions.” (CX 2354; CX 2485 (Walton, Dep. at 

86-87) (discussing CX 2354)). 

2359.	 The August 24, 2009 letter of intent represented an agreement in principle that the parties 

then had to finalize and document in a formal agreement. (Pais, Tr. 1788; CX 1806). 

2360.	 By August 27, 2009, Mr. Pais believed that Sigma and McWane were close to an 

agreement. (Pais, Tr. 1792-1793; CX 0923 at 002 (draft internal Sigma update on the 

negotiations). On August 28, 2009, Mr. Pais transmitted comments on the letter of intent 

to Mr. McCullough, who forwarded them to Mr. Tatman. (CX 0486 at 001). 

2361.	 Mr. Rona and Mr. Tatman continued to negotiate the MDA terms, and by August 31, 

2009, they had exchanged comments on the terms outlined in the August 24 letter of 

intent. (CX 1046 at 001-002 (noting “core agreement elements” including (a)”McWane 

shall be Sigma’s exclusive source of supply,” (b) “Sigma may only sell McWane Product 

to [Distributors] that are in an exclusive relationship with McWane”)). 

2362.	 As of August 31, 2009, a formal MDA contract was drafted and near completion. (CX 

1046 at 001). 

2363.	 Sigma proceeded with the MDA despite its view that McWane was taking an unduly 

aggressive negotiating position. After reviewing the draft agreement, Mr. Bhattacharji 

wrote on September 1, 2009, “I am deeply disturbed by some of the clauses which seem 

such an over reach and written by people who are showing total disinterest in helping us 

and themselves to improve the market thru this move.” (CX 2005 at 001; CX 2523 

(Bhattacharji, Dep. at 228-230) (“I had a concern, and I met with my lawyer, he gave me 

advice.”) (witness instructed not to answer further)). 

2364.	 Sigma also proceeded with the MDA in the face of concerns regarding the legality of 

certain terms regarding the maintenance of prices at 98% of published rates and the joint 

implementation of McWane’s Exclusive Dealing Policy, which Sigma understood would 

be enforcing a “blacklist” of any Distributors that did business with Star. (CX 1045 at 

001; CX 2523 (Bhattacharji, Dep. at 232-237) (basing his understanding of McWane’s 

Exclusive Dealing Policy and its enforcement of a “blacklist” on Sigma’s MDA 

negotiations with McWane)). 

2365.	 As of September 7, 2009, Mr. Pais expected the MDA to be finalized by the end of that 

week – September 11, 2009. (Pais, Tr. 1794-1795; CX 0269 at 003 (“We should be able 

to fully launch this MDA plan to the market/SST by week’s end . . . by 9/11/09 -- of 

course, a historic day!”)). 

2366.	 Mr. McCullough made the final decision on behalf of McWane to enter into the MDA 

with Sigma. (CX 2482 (Page, Dep. at 61, 64) (testifying that Mr. Page was in favor of 

signing the MDA in part to address the concern that McWane was “the only available 

source for domestic fittings at that point in time.”)). 

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11.7 McWane Would Have Earned Higher Margins Selling to Distributors Itself 

2367.	 The MDA transferred profits from McWane to Sigma, because McWane would have 

earned higher margins selling Domestic Fittings to Distributors than it earned selling 

them to Sigma. (Infra ¶¶ 2368-2371). 

2368.	 McWane always considered that supplying Sigma with Domestic Fittings would transfer 

profit margin from McWane to Sigma. (CX 0067 at 003 (May 26, 2009 presentation 

noting that if McWane choose not to sell Domestic Fittings to Sigma, it would “Retain 

the full margin for Domestic product within McWane.”); Tatman, Tr. 621, 623; see also 

supra ¶¶ 2191-2194). 

2369.	 In an August 14, 2009 email to Mr. McCullough, Mr. Walton estimated that the Sigma 

MDA as then contemplated would result in $1.68 million annual loss of gross profit for 

McWane. (CX 0111 at 001-002). Mr. Walton summarized the then-current state of the 

potential MDA as follows: 

As I understand where we are at now we are going to give SIGMA 

a 20% discount off of our current published domestic multipliers. 

Since we would not pay them a 10% rebate on this sale, as we 

would our regular distribution customers, then we are only giving 

them 10% of our current gross margin for domestic fittings we sell 

that we will lose to them when they sell those domestic tons. So for 

every 1000 tons of domestic fitting that they sell, that WWF 

[McWane’s Water Works Fittings business] would have sold, 

WWF will lose approximately $350,000 in gross margin, this was 

calculated from WWF sales and gross July 09. It is probably a fair 

assumption that we will lose some nondomestic tons as well as 

domestic when SIGMA tries to package deals, etc. So if we 

assume that for every 1000 domestic tons they sell they will sell an 

additional 500 tons of non-domestic that would have been WWF’s 

that would translate into a loss of approximately $210,000 in gross 

margin for a combined total of approximately $560,000 lost in 

gross margin. If I remember from one of our conference calls it 

was estimated that Sigma might sell around 3000 domestic tons per 

year, if so this would produce a gross profit loss for WWF of 

approximately $1,680,000 per year from the current numbers. 

(CX 0111 at 002; Tatman, Tr. 767-769). 

2370.	 According to a September 25, 2009 margin analysis of the MDA prepared by Mr. 

Tatman, assuming no erosion of published prices, McWane would earn approximately 

29.5% margins on its sales to Sigma, and Sigma would earn approximately 5.7% margins 

on its sales of Fittings procured from McWane, with McWane earning an 82% share of 

the overall margin. (CX 0631 at 003). 

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2371.	 Mr. Jansen and Mr. Tatman received a report from Mark Willett that two customers in 

the Northeast had switched to Sigma from McWane, and noting the loss of $300-$350 

per ton in margin for everything sold through Sigma. (CX 0572 at 001). 

11.8	 The Terms of the MDA Severely Restricted Competition in the Domestic 

Fittings Market 

2372.	 The MDA’s terms and implementation prevented Sigma from independently entering the 

Domestic Fittings market, enlisted Sigma in McWane’s efforts to exclude Star from the 

market, and eliminated price competition between Sigma and McWane. (Infra ¶¶ 2373­

2448). 

2373.	 On or about September 17, 2009, Mr. Tatman on behalf of McWane and Mr. Pais on 

behalf of Sigma signed the MDA. (CX 1194 at 001, 013, 014; Tatman, Tr. 791; Pais, Tr. 

1807-1808; CX 0278 at 001, 015 (Pais transmitting to Tatman copy of MDA with Sigma 

signature); CX 0950 at 001 (Tatman informing Pais he will sign on September 17, 2009, 

and Pais informing Tatman that he has signed and original should arrive at McWane on 

the September 17, 2009)). 

2374.	 McWane publicly announced the MDA on September 22, 2009, in the same letter that 

articulated McWane’s new Exclusive Dealing Policy. (CX 1606 at 002). 

2375.	 Sigma also announced the MDA on September 22, 2009 (CX 0803 at 002; Pais, Tr. 

1821). 

2376.	 Before Sigma’s announcement, Mr. Pais invited Mr. Tatman to comment on Sigma’s 

customer letter, (CX 0950 at 001), and Mr. Tatman requested that Sigma not portray the 

MDA as having been initially proposed by McWane. (CX 0951 at 001 (Tatman email to 

Pais attaching redline of Sigma draft customer letter)). 

2377.	 On September 24, 2009, subsequent to signing the MDA, McWane provided Sigma with 

“rules of play” for day-to-day execution that would “capture both the language within the 

MDA and the spirit and intent under which it was constructed.” (CX 1436; Rona, Tr. 

1568-1571). 

2378.	 Unlike an ordinary buy-sell transaction, the MDA contained detailed conditions relating 

to Sigma’s conduct in the Domestic Fittings market. (CX 2530 (Rona, Dep. at 235-237) 

(Rona noted “some of the conditions which became part of the agreement . . . versus just 

hey, we’ll sell it to you and you can do whatever you want to do” with the Fittings)). 

11.8.1 Sigma Was Required to Source Domestic Fittings Only from 

McWane, and Abandoned Its Domestic Production Initiative 

11.8.1.1	 The MDA Required Sigma to Source Domestic Fittings 

Exclusively from McWane 

2379.	 The MDA expressly precluded Sigma from entering the Domestic Fittings market in 

competition with McWane, requiring that, with limited exceptions, “McWane shall be 

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Sigma’s sole and exclusive source for Domestic Fittings.” (CX 1194 at 001 § 1(b); 

Tatman, Tr. 793 (“Sigma needs to purchase their products from us, with exceptions.”)). 

2380.	 The only three exceptions to this “sole source” provision were the following: (1) Sigma 

was permitted to source Domestic Fittings in the 30”-48” diameter range from other 

manufacturers under certain circumstances; (2) Sigma was permitted to source a Fitting 

from an alternative source so long as McWane did not own patterns for such Fitting; (3) 

Sigma was permitted to source Domestic Fittings from alternative sources on an order by 

order basis if McWane was unable to make timely delivery. (CX 1194 at 001 § 1(b)). 

2381.	 Sigma understood that McWane would not enter the MDA without such assurances. (CX 

2523 (Bhattacharji, Dep. at 238) (Sigma understood that McWane would only enter into 

the MDA if Sigma provided assurances that it would not source Domestic Fittings from 

anywhere else); CX 2530 (Rona, Dep. at 242-251) (discussing Sigma’s July 14, 2009 

MDA proposal (CX 0243), Rona stated that “Sigma felt in order to try to get the [MDA] 

deal that we wanted, that there were things that we would have to agree to do, and we felt 

this condition was one that they [McWane] would review as understanding that we 

weren’t going to be able to buy from them as a distributor and then leave every option 

open to do other things”))). 

2382.	 The exclusivity provision of the MDA read in its entirety as follows: 

Exclusivity. Sigma agrees that McWane shall be Sigma’s sole and 

exclusive source for Domestic Fittings, with the exception that: (1) 

Sigma may purchase Domestic Fittings in the 30”- 48” diameter 

size range from other manufacturers so long as Sigma is the sole 

owner of the patterns for such Domestic Fittings, but only for 

resale to other domestic foundry manufacturers of ductile iron pipe 

and fittings; (2) If McWane does not own patterns for a particular 

Domestic Fitting, Sigma may purchase that Domestic Fitting from 

an alternative source, but only until such time as McWane acquires 

the pattern for that Domestic Fitting; and (3) Sigma may purchase 

Domestic Fittings from alternative sources on an order by order 

basis only if McWane cannot deliver McWane Domestic Fittings 

to the designated delivery point by the time specified in the order 

or within 30 days after the order has been received and processed 

by McWane, whichever occurs later. 

(CX 1194 at 001 § 1(b)). 

2383.	 The MDA’s exclusivity provision is consistent with the letter of intent (CX 1806), which 

stated that, to maintain its “Master Distributorship,” Sigma was “expected . . . [to] Not 

introduce your own domestic product while the Master Distributor Agreement is active.” 

(CX 1806 at 003; CX 1194 at 001 § 1(b) (final MDA: “Sigma agrees that McWane shall 

be Sigma’s sole and exclusive source for Domestic Fittings”); Pais, Tr. 1789 (discussing 

letter of intent)). 

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2384.	 Sigma understood that the MDA prevented Sigma from producing its own Domestic 

Fittings. (CX 2529 (Rona, IHT at 173-175) (“As part of our agreement with McWane for 

the MDA, we agreed that we wouldn’t produce – it’s in the agreement that we wouldn’t 

produce other small-diameter fittings -- again, I think it’s 24” and down.”); CX 0278 at 

002 (“Sigma agrees that McWane shall be Sigma’s sole and exclusive source for 

Domestic Fittings”)). 

2385.	 As Mr. Rona explained at trial, pursuing its own domestic production would be a breach 

of the MDA agreement: 

[O]nce the MDA was signed, we did not pursue [Sigma’s SDP 

efforts] at that point to go ahead. And we knew that, again, 

understanding the agreement as it was written, if we decided to 

continue to go ahead, we technically could go ahead and could, but 

we would then be in breach of the contract. 

(Rona, Tr. 1581-1582; CX 0278-002 (“Sigma agrees that McWane shall be Sigma’s sole 

and exclusive source for Domestic Fittings”)). 

11.8.1.2	 Sigma Abandoned Its Domestic Production Initiative as a 

Result of the MDA 

2386.	 Sigma abandoned its Domestic Fittings production initiative as a result of the MDA. 

(Infra ¶¶ 2387-2393). 

2387.	 Sourcing Domestic Fittings through McWane replaced Sigma’s “SDP” effort to develop 

its own Domestic Fittings production capability. (CX 1018 at 001 (Pais writing to Mr. 

McGivern on July 13, 2009, “If we get a wholesome agreement [with McWane], yes, it 

will replace our SDP plans – and save huge Capex$!”); Pais, Tr. 1773; CX 2524 (Box, 

Dep. at 81) (Mr. Box recommended that Sigma not go forward with domestic production 

of small Fittings in light of the availability of Fittings from McWane via the MDA); CX 

2527 (Pais, IHT at 154-155)). 

2388.	 In late August and early September 2009, before the MDA was finalized, Sigma 

continued to work on its SDP efforts. (Rona, Tr. 1580-1581; supra ¶¶ 2256-2267). 

2389.	 Sigma continued to investigate manufacturing Domestic Fittings until immediately before 

signing the MDA, and ceased its Domestic development efforts only after it knew it had 

an agreement on the MDA. (Rybacki, Tr. 3729 (Sigma continued to investigate domestic 

production until shortly before it signed the MDA, and backed away from the 

investigation of Domestic Fittings manufacturing once it knew it would have the MDA); 

Rona, Tr. 1548 (“Q. And once you reached an agreement on the MDA, did your 

domestic plans take a backseat to the MDA? A. Yes. With the exception that we had 

stayed developing and still develop and make domestic pipe restraints, but on fittings we 

did not continue.”); CX 2523 (Bhattacharji, Dep. at 221-222) (Sigma stopped pursuing 

SDP when it signed the MDA); CX 2530 (Rona, Dep. at 296-297) (“[O]nce we had the 

MDA, we were satisfied we were satisfied that we had a source of domestic fittings for 

ARRA, period.”)). 

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2390.	 On October 3, 2009, Mr. Bhattacharji informed Sigma’s China production manager that 

Sigma’s “development plans for domestic fittings are taking a back seat for the moment. 

This is because we have an MDA (Master Distributor Agrmt) deal with McWane for the 

fittings.” (CX 0934 at 001; Pais, Tr. 1853-1856). 

2391.	 On September 28, 2009, Stuart Box wrote to Frank Ross of Penn-Mar Castings, 

explaining that Sigma’s Domestic Fittings production plan had been replaced by the 

MDA: “We have also decided to not pursue the domestic fitting production in lieu of 

another option that materialized at the last hour.” (CX 1532 at 001). 

2392.	 Sigma continued to develop domestic products that were not prevented under the terms of 

the MDA. For example, after signing the MDA, Sigma continued its development of 

domestic restraints, and today, Sigma makes and sells domestic restraints. (Rona, Tr. 

1548). 

2393.	 Additionally, after signing the MDA, Sigma continued its development of larger-sized 

Domestic Fittings because McWane did not provide larger-sized Domestic Fittings. 

(Pais, Tr. 1804; CX 1166; CX 1194 at 001 § 1(b) (excepting from exclusive source 

position Fittings for which McWane does not have the patterns)). 

11.8.2 Sigma Was Required to Enforce McWane’s Exclusive Dealing Policy 

11.8.2.1	 The MDA Required Sigma to Enforce McWane’s Exclusive 

Dealing Policy 

2394.	 The MDA required Sigma to enforce McWane’s Exclusive Dealing Policy. With the 

exception of ACIPCO, to which Sigma would be permitted to resell McWane’s Domestic 

Fittings without restriction, Sigma was only permitted to resell McWane Domestic 

Fittings to Distributors that had “agreed to purchase McWane Domestic Fittings as their 

sole source of Domestic Fittings when McWane Domestic Fittings are available at the 

time of order.” (CX 1194 at 001 § 1(c); Tatman, Tr. 797-798). 

2395.	 Sigma agreed not to sell McWane Domestic Fittings to any customer identified by 

McWane as having “purchased Domestic Fittings from a source other than McWane at 

any time during the previous 60 days.” (CX 1194 at 001-002 § 1(c); Tatman, Tr. 798; 

Pais, Tr. 1816-1819). 

2396.	 This provision of the MDA read in its entirety as follows: 

Markets. Sigma may only resell McWane Domestic Fittings to: 

(1) American Cast Iron Pipe Company; and (2) Other customers, 

including distributors, contractors and fabricators, but excluding 

manufacturers of ductile iron pipe that have agreed to purchase 

McWane Domestic Fittings as their sole source of Domestic 

Fittings when McWane Domestic Fittings are available at the time 

of order. McWane shall from time to time provide Sigma with a 

list of customers who have not agreed to source their Domestic 

Fittings solely from McWane. Sigma agrees not to sell McWane 

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Domestic Fittings to any customer so listed by McWane, or to any 

other customer who Sigma actually knows has purchased Domestic 

Fittings from a source other than McWane at any time during the 

previous 60 days. McWane reserves the unconditional right in its 

sole discretion to (i) call upon and sell McWane Domestic Fittings 

directly to any prospective customers or existing customers, (ii) 

investigate and resolve customer complaints, (iii) distribute sales 

and advertising information and (vii) perform other services. 

McWane reserves the right in its sole discretion to appoint or 

designate other distributors or representatives other than Sigma to 

sell McWane Domestic Fittings. 

(CX 1194 at 001-002 § 1(c)). 

2397.	 The MDA further provided that Sigma would assist McWane in the enforcement of 

McWane’s Exclusive Dealing Policy: 

Sigma shall . . . take reasonable efforts to monitor its customer’s 

sources of supply of Domestic Fittings, and shall notify McWane 

as soon as possible if Sigma becomes aware of any purchases of 

non-McWane Domestic Fittings by any such customer. 

(CX 1194 at 004 § 3(c)(v); see also (CX 2479 (McCullough, Dep. 108-109) ((McWane 

required Sigma through the MDA to not sell Domestic Fittings to Distributors that were 

not exclusive to the Tyler/Union brand))). 

2398.	 Mr. Pais testified that he understood that under McWane’s Exclusive Dealing Policy, as 

implemented under the MDA, a Distributor that chose to purchase any Domestic Fittings 

from Star would need to buy all of its Domestic Fittings from Star. (Pais, Tr. 1817-1819) 

(“McWane’s policy was to give the customer a choice. . . . [T]hey would require a 

customer, once they make a choice, to follow their choice for all their needs for domestic 

fittings.”)). 

2399.	 McWane informed its major Distributor customers that Sigma would be enforcing 

McWane’s Exclusive Dealing Policy. (CX 0725 (McCullough September 2, 2009 letter 

to Mr. Webb of HD Supply); CX 2479 (McCullough, Dep. at 142) (CX 0725 accurately 

describes the Sigma MDA as it pertained to Sigma not being able to sell to Distributors 

who also bought from Star); CX 2479 (McCullough, Dep. 142-144) (testifying that he 

“probably” delivered the same message to the Distributors Ferguson, Groeniger, and 

WinWater); CX 2477 (Jansen, Dep. 179-180) (testifying to his understanding that Sigma 

could not sell Domestic Fittings to Distributors that bought any Domestic Fittings from 

Star); CX 0108). 

11.8.2.2	 Sigma Implemented and Enforced McWane’s Exclusive 

Dealing Policy 

2400.	 Sigma implemented and enforced McWane’s Exclusive Dealing Policy. (Infra ¶¶ 2401­

2409). 

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2401.	 Sigma was concerned about “how customers would take” McWane’s requirement in the 

MDA that Sigma would enforce McWane’s Exclusive Dealing Policy because, “[i]n 

Sigma, we sold everybody anything they wanted.” (CX 2523 (Bhattacharji, Dep. at 228­

230)). 

2402.	 Sigma has a significant investment in its own broad line of imported Fittings, but does 

not have a rule against Distributors “cherry-picking” by buying some but not all of their 

Fittings from Sigma. (CX 2530 (Rona, Dep. at 255-258)). 

2403.	 In Sigma’s September 22, 2009 announcement to its customers, Sigma informed its 

customers that it would be enforcing the McWane Exclusive Dealing Policy: 

As per this MDA, we are now Master Distributors of [McWane] 

domestic Fittings. As such, we will follow [McWane’s] 

distribution and pricing policies as they are announced from time 

to time. As mentioned in their own letter from [McWane] to their 

customers, which you too may have received, we wish to supply 

the [McWane] domestic Fittings to any customers who elect to 

commit to fully support [McWane] branded Fittings for their 

requirements of domestic Fittings, purchased thru [McWane] or 

SIGMA. We appeal to you to accept this requirement of exclusive 

choice, as a fair and reasonable one, in light of the considerable 

investment by [McWane] to provide this range of domestic 

production, which is now being expanded to offer domestic 

Fittings up to 48”. Please note that customers who elect not to 

fully support this program may forgo any unpaid volume incentive 

rebates applicable to only the domestic Fittings and delivery of 

domestic Fittings up to 12 weeks. 

(CX 0803 at 002; Pais, Tr. 1821). 

2404.	 In the Q & A document that he prepared and circulated to the McWane sales force after 

execution of the MDA, Mr. Tatman described Sigma’s participation in McWane’s 

Exclusive Dealing Policy in response to a hypothetical customer question: 

Question: Can I utilize another domestic fitting and accessory 

brand other than Tyler Union or Clow Water products and then 

still purchase Tyler Union or Clow Water products through Sigma? 

Answer: No, Sigma will be adhering to the same distribution 

program and policies as the Tyler Union and Clow Water divisions 

of McWane. 

(CX 1179 at 004; Tatman, Tr. 807). 

2405.	 On September 25, 2009, Sigma regional sales manager Mike Walsh emailed Mr. Rona 

asking for clarification of – and expressing concern about – the McWane exclusivity 

policy to be implemented by Sigma: 

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MR1 ... Just for clarification ... can you check with your Tyler 

contact and find out exactly what it means to be on death row, or 

probation, or on double secret probation with Tyler? I did not think 

it was possible to ‘not sell’ a customer unless it was a credit issue. 

I thought they separated the good customer from the bad customers 

by the volume rebate. Are there actual customers that Tyler will 

not sell to at all? This topic is only an issue because of the other 

Tyler and Sigma customers that are demanding that we do not sell 

any customers that Tyler has cut off. We need to know what does 

‘cut off’ mean because I don’t think we can legally tell a customer 

we will not sell them. Any info is appreciated. MW 

(CX 1471; Rona, Tr. 1604).39 

2406.	 On August 17, 2010, Sigma regional sales manager Mike Walsh emailed Ken Stephenson 

of Sigma reminding him about the Exclusive Dealing Policy: “Remember . . . if 

customers are buying from Star . . . we cannot sell them domestic any more.” (CX 1746). 

2407.	 On December 14, 2009, McWane informed Sigma that it was cutting off Hajoca under its 

Excusive Dealing Policy and that Sigma must do the same. Mr. Tatman told Mr. Rona: 

“Per the terms of our MDA I need you to acknowledge that Sigma will also not supply 

any Hajoca branch with Domestic fittings or accessories until further notice.” (CX 1801 

at 001 (emphasis added)). 

2408.	 Mr. Rona forwarded the email to Sigma’s CEO, who responded that Sigma had “no 

choice but to agree to abide by the rules of the MDA.” (CX 0940; Rona, Tr. 1606, 1608 

(Rona forwarded to Sigma’s distribution group the instruction not to sell McWaneproduced domestic fittings to any Hajoca branch); CX 2530 (Rona, Dep. at 258) 

(McWane told Sigma that it could not sell to Hajoca)). 

2409.	 As requested by McWane, on December 15, 2009, Mr. Rona confirmed to McWane that 

Sigma was “clear about Hajoca” and would not sell Domestic Fittings to any branch. 

(CX 1801 at 001 (“Sigma confirms we are clear about Hajoca.”); Rona, Tr. 1606; see 

also supra ¶¶ 1850-1892 (describing McWane cut-off of Hajoca)). 

11.8.3 McWane and Sigma Agreed on Domestic Fittings Prices Under the 

MDA 

2410.	 Through the MDA’s terms and implementation, McWane and Sigma agreed to, and did, 

charge substantially identical prices for Domestic Fittings. (Infra ¶¶ 2411-2434). 

39 Mr. Walsh’s out of court statements are cited for their effect on Mr. Rona and not to prove the 

truth of the matters asserted in the statements. (See Rona, Tr. 1605). 

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11.8.3.1	 The MDA Expressly Limited the Prices at Which Sigma Could 

Sell Domestic Fittings 

2411.	 The MDA provided that McWane would sell McWane Domestic Fittings to Sigma at a 

discount of 20% off McWane’s published pricing. (CX 1194 at 002 § 1(d); CX 2479 

(McCullough, Dep. at 121) (McWane agreed to sell Domestic Fittings to Sigma under the 

MDA at a 20% discount off McWane’s published multiplier terms for truckload 

shipments)). 

2412.	 The MDA required that Sigma resell McWane Domestic Fittings at a weighted average 

of no less than 98% of McWane’s published prices during any given quarterly period, 

before rebates, freight and prompt payment discounts (the “Suggested Resale Price”). 

(Tatman, Tr. 798-803; Pais, Tr. 1829-1830; (CX 1194 at 002§ 1(d)). The 98% restriction 

was at McWane’s behest. (CX 2530 (Rona, Dep. at 262)). 

2413.	 Sigma’s failure to resell at the Suggested Resale Price would result in immediate 

termination of the MDA without notice. (CX 1194 at 002 § 1(d); Tatman, Tr. 802-803). 

2414.	 The MDA also required Sigma to offer an 8% or greater volume rebate program for 

customers purchasing more than $200,000 annually of McWane Domestic Fittings. (CX 

1194 at 002 § 1(d); Tatman, Tr. 803). 

2415.	 This provision of the MDA read in its entirety as follows: 

Pricing. McWane will sell McWane Domestic Fittings to Sigma at 

a discount of twenty percent (20%) off McWane’s published 

distributor pricing in effect at the time the order is received by 

McWane. While Sigma may resell McWane Domestic Fittings at 

any price it deems appropriate, it is the unilateral policy of 

McWane not to appoint or continue any OEM distributor who 

resells McWane Domestic Fittings at a price less than 98% of 

McWane’s published pricing on a weighted average basis for all 

customers and items sold during any given quarterly period, before 

rebates, freight and prompt payment discounts (the “Suggested 

Resale Price”), or who fails to establish a rebate program of 8% or 

greater for customers, excluding manufacturers of ductile iron 

pipe, who purchase more that [sic] $200,000 annually of McWane 

Domestic Fittings or who stock McWane Domestic Fittings in the 

normal course of business. The determination of whether an OEM 

distributor has met these requirements shall be made in accordance 

with the formulas and method set forth in the attached Exhibit A. 

This agreement shall terminate immediately and without notice in 

the event that Sigma resells McWane Domestic Fittings at a price 

below the Suggested Resale Price, or fails to implement and 

maintain the Suggested Rebate for eligible customers; provided, 

however, that the Suggested Rebate shall not apply to customers 

who are domestic manufacturers of ductile iron pipe. McWane 

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reserves the right to audit Sigma’s compliance with this paragraph 

at any time through a third party chosen by auditor chosen by 

McWane. 

(CX 1194 at 002 § 1(d)). 

2416.	 As described by Mr. Pais, “with the pricing, we are obliged to be as close to the published 

multiplier as possible. Our hands are not tied - but we cannot sell below, because it will 

undermine McWane’s own sales.” (CX 0997 at 004 (September 22, 2009 message 

dictated by Pais)). 

2417.	 Sigma would have preferred to have pricing discretion under the MDA. (CX 2530 

(Rona, Dep. at 263-264); CX 2527 (Pais, IHT at 196)). 

11.8.3.2	 Sigma and McWane Both Agreed to sell Domestic Fittings at 

or Above 98% of Published Multipliers and Raise Published 

Prices 

2418.	 McWane and Sigma each understood that both parties’ Domestic Fittings pricing was 

subject to the pricing restrictions set forth in the MDA, and they set their Domestic 

Fittings prices accordingly. (Infra ¶¶ 2418-2434). 

2419.	 Under the MDA, Sigma had to sell McWane Domestic Fittings at or above 98% weighted 

average of McWane’s published prices. (CX 2523 (Bhattacharji, Dep. at 236-237)). 

2420.	 Under the MDA, McWane was able to change its prices and rebate terms – and impose 

those terms on Sigma – at any time. (Pais Tr. 1828-1829; CX 0953 (“Please be very 

careful in NOT offering any VR [volume rebate] plans for 2010 for DOM [Domestic] 

Fittings – as Tyler may reduce the VR% for 2010. As you know, they have been trying 

to improve this area of the market pricing for a while.”); see also CX 0089 at 003 (Pais 

noting that Sigma was “obliged to offer the same [as McWane] VR incentive of 8% for 

all customers who would purchase over $200,000/per year of domestic Fittings”)). 

2421.	 A Sigma salesman was hesitant to discount even imported Fittings “due to the trust 

agreement we have with [McWane].” (CX 1514). 

2422.	 On December 21, 2009, McWane announced multiplier increases for Domestic Fittings 

effective January 22, 2010. (CX 1544 at 002). 

2423.	 Mr. Tatman forwarded McWane’s December 21, 2009 price increase announcement to 

Mr. Rona: “Per our Master Distribution Agreement this will impact Sigma orders as of 

the effective date.” (CX 1662 at 001; see also Rona, Tr. 1602-1604 (discussing CX 

1662)). 

2424.	 Greg Fox of Sigma forwarded the McWane December 21, 2009 price increase 

announcement within Sigma, noting, 

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Under the terms and agreements of our Master Distribution Agreement with 

[McWane], we will mirror the multiplier and implementation dates of this letter. 

We have no latitude for exceptions. 

(CX 1519 at 002; see also CX 1544 at 001 (Rona forwarding McWane price 

announcement within Sigma); CX 2530 (Rona, Dep. at 300)). 

2425.	 Sigma enacted the same price increase, effective January 22, 2010. (CX 1519 at 001 

(Pais email December 29: “I am glad to comply” with McWane price increase); CX 1852 

at 001-002 (Pais December 30 email attaching “our version of the Customer Letter to 

announce the price increase”); CX 0786 (same letter as produced from Star’s files)). 

2426.	 In the October 2009 MDA Q&A document that Mr. Tatman circulated to his sales force, 

Mr. Tatman expressed the expectation that the MDA would make the market “more 

stable.” (CX 1179 at 002; Tatman, Tr. 807-808). 

2427.	 Although the pricing provision of the MDA by its terms only regulated the prices to be 

charged by Sigma for Domestic Fittings, in the course of negotiating the MDA, Sigma 

asked McWane to follow the same 98% rule. (CX 0271 (noting Sigma request to 

McWane that McWane follow “the same rules on pricing . . . that they are imposing on 

[Sigma]”); Pais, Tr. 1796 (not recalling CX 0271 or Sigma’s request); CX 2523 

(Bhattacharji, Dep. at 241-242) (Sigma’s CEO Jim McGivern brought up the point that 

McWane should also have to charge its customers at least 98% of its published prices for 

Domestic Fittings); CX 0098 at 003 (draft MDA agreement reflecting requirement that 

McWane be required to follow the MDA’s “policy on suggested retail pricing and 

rebates”); CX 0272 at 001-002 (cover email)). 

2428.	 Mr. Pais and Mr. Tatman discussed the MDA on September 14, 2009, and the next day 

Mr. Pais emailed a signed copy of the agreement to Mr. Tatman, noting in the cover 

email, “I agree completely with your observation that in the end, it’s the right spirit and 

sensible reason rather than just the legal document that will determine the outcome of this 

initiative.” (CX 0278 at 001; Pais, Tr. 1806-1807). 

2429.	 McWane and Sigma agreed that they would both price Domestic Fittings at no lower than 

98% of McWane’s published multipliers. (CX 2531 (Rybacki, Dep. at 165-166) (when 

the MDA was in place, Rybacki’s understanding was that Sigma had to sell McWane’s 

Domestic Fittings at 98% of published pricing and that McWane had to sell at a similar 

price)). 

2430.	 Mr. Tatman’s business understanding of the agreement between Sigma and McWane was 

that McWane – and not just Sigma – also had to sell within 98% of McWane’s published 

prices. In a December 13, 2009 email to Mr. McCullough and Mr. Walton, Mr. Tatman 

described the MDA pricing requirement as follows: 

Per our MDA with Sigma . . . Sigma (and in theory [McWane]) is 

supposed to sell within 98% of the published levels. 

(CX 0347 at 001; Tatman, Tr. 806-807). 

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2431.	 After the signing of the MDA, McWane understood that it could not offer Distributors 

lower “domestic numbers with our MDA with Sigma. We need to stay stable . . . .” (CX 

0110 at 001 (Jansen October 4, 2009 email to regional managers); see also CX 0106 at 

002 (Jansen: “[W]e need to make sure all domestic is right down the line since Sigma is 

involved”); CX 0107 at 001 (Jansen: “[W]e won’t move the numbers on the package due 

to the Sigma deal.”)). 

2432.	 Mr. Jansen testified that his understanding was that there was a provision in the MDA 

that limited Sigma’s and McWane’s ability to discount on Domestic Fittings. (CX 2477 

(Jansen, Dep. at 172-173)). 

2433.	 At one point, Mr. Rona contacted McWane when he heard that McWane had deviated 

below the agreed upon price for Domestic Fittings: 

I believe I had one conversation with Tyler. We were under the -- 

as bound by the MDA, we were to understand that they were 

supposed to sell at the same price, meaning that was my 

understanding from the agreement. 

(CX 2529 (Rona, IHT at 212-214); see also CX 2529 (Rona, IHT at 214-216) (further 

describing call to Tatman regarding McWane’s Domestic Fittings pricing)). 

2434.	 On November 3, 2009, Mr. Schapiro emailed Mr. Rybacki reporting that he had recently 

noticed some items with “VERY poor GMs” based on McWane list prices, and had 

“pointed them out to the right people, and they have been changed by McWane.” (CX 

1024 at 001). 

11.8.4 Sigma Agreed Not to Oppose Buy American Legislation 

2435.	 McWane was aware that Sigma and Star had lobbied against the Buy American provision 

of ARRA. (Tatman, Tr. 614). 

2436.	 The MDA required Sigma to stop lobbying against Buy American laws. (CX 1194 at 004 

§ 3(c)(iv); Pais, Tr. 1788-1789). 

2437.	 This provision of the MDA provided as follows: 

Sigma . . . shall not oppose the inclusion of Buy American and 

other similar domestic content requirements that could affect sales 

of waterworks fittings in pending or existing legislation or 

regulations. Sigma will also not take any action designed to 

encourage the revocation or reduction of domestic content 

requirements in any existing laws, regulations, or specifications 

adopted by any federal, state or local governmental entity or any 

subdivision or affiliate thereof. 

(CX 1194 at 004 § 3(c)(iv)). 

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2438.	 Sigma stopped lobbying against Buy American laws as a result of the MDA. (CX 2523 

(Bhattacharji, Dep. 243-246) (“Q. But at the bigger level of government Buy America 

provisions, you no longer tried to change those rules? A. That’s what we had signed, so 

no.”)). 

2439.	 In early November of 2009, the U.S. Chamber of Commerce planned a conference call 

with its “resident Buy America Policy Expert,” and invited Mr. Florence of Frontenac, 

who forwarded the invitation along to Mr. Pais, Mr. McGivern, and Mr. Bhattacharji of 

Sigma. (CX 0935 at 002). Mr. McGivern cautioned that participating in lobbying 

activities directed against Buy American legislation: 

I would suggest that if they are looking for quotes it should come 

under the Frontenac name and not Sigma in order to protect the 

MDA. I could be introduced as a Frontenac investor as well as 

Sigma Chairman. 

(CX 0935 at 001). Mr. Bhattacharji was even more concerned: 

Adding to VP’s caution, please be very careful while talking to US 

COC. Even if we are ‘technically’ not violating the MDA by 

speaking as investors and not SIG, we cannot afford to antagonize 

[McWane] who can pull the MDA off the table using some other 

excuse if they feel strongly about our attempts to beat back the BA 

laws related to pipe fittings. 

(CX 0935 at 001). Mr. Florence responded that he would attend alone, and that “I knew 

there was some sensitivity but was not clear.” (CX 0935 at 001; Pais, Tr. 1831-1833 

(testifying that he was unaware of any such “sensitivity”)). 

2440.	 On January 19, 2010, Mr. Bhattacharji of Sigma terminated Sigma’s retention of SDA, 

the public relations firm it had previously engaged to lobby against “Buy American” 

legislation, writing that, 

In light of our decision to become a master distributor for Tyler 

Fittings and the decision to start our domestic manufacturing of 

pipe restraints, we are handicapped in terms of taking a vocal and 

visible position against the Buy American rules that have or are 

being enacted in the Congress.” 

(CX 1000; Pais, Tr. 1834-1837; see also CX 2523 (Bhattacharji, Dep. at 244-246 (the 

MDA required Sigma to stop its opposition to Buy American laws, and Sigma did so)). 

11.8.5 Sigma Was Not Permitted to Sell to U.S. Pipe 

2441.	 The MDA precluded Sigma from selling McWane’s Domestic Fittings to U.S. Pipe. (CX 

2203 at 001; Morton, Tr. 2850-2851). 

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2442.	 McWane agreed to permit Sigma to re-sell McWane Domestic Fittings to one nonDistributor customer, ACIPCO, but not to U.S. Pipe. As Mitchell Rona explained in the 

course of the MDA negotiations: 

McWane will not amend to formally include U.S. Pipe. [Tatman] 

is firm that they will not share their profit here too and feel they 

already did so with Acipco who is formally in the agreement now. 

(CX 1046 at 001; Rona, Tr. 1587-1590). 

2443.	 U.S. Pipe ceased investigating its own potential manufacturing of Domestic Fittings as a 

result of assurances from Sigma in June 2009 that Sigma would produce Domestic 

Fittings. (Morton, Tr. 2876-2877). 

2444.	 At his October 13, 2009 meeting in Birmingham, Alabama with Mr. Morton of U.S. Pipe, 

Mr. Tatman conveyed to Mr. Morton that under the MDA between McWane and Sigma, 

U.S. Pipe would not be able to source its Domestic Fittings through Sigma, but would 

instead have to purchase directly from McWane. (Morton, Tr. 2842; CX 2203 at 001 

(“Tatman informed me that Sigma was forbidden from selling to USP as per the Master 

Distribution Agreement signed between Union and Sigma.”)). 

2445.	 Mr. Morton previously met with Sigma about procuring Domestic Fittings, and 

understood that Sigma expected to be able to provide U.S. Pipe with Domestic Fittings 

pursuant to the MDA. (Morton, Tr. 2852-2853). 

2446.	 At their October 13 meeting, Mr. Tatman quoted Domestic Fittings price multipliers of 

.43 (4” - 12”) and .53 (14” - 24”). (Morton, Tr. 2851; CX 2203 at 001). 

2447.	 Sigma had previously offered lower Domestic Fittings price multipliers to U.S. Pipe, 

offering .38 (4” - 12”) and .48 (14” - 24”). (Morton, Tr. 2852; CX 2203 at 001). 

2448.	 Mr. Morton mentioned the prior Sigma quote to Mr. Tatman, and told Mr. Tatman that 

U.S. Pipe needed the same multiplier in order to be competitive with ACIPCO. Mr. 

Tatman responded that the multipliers Sigma had quoted were from earlier in the MDA 

negotiation, and that U.S. Pipe would be competitive with ACIPCO at the higher 

multipliers. (CX 2203 at 001). 

11.9	 The MDA Did Not Increase Output or Expand the Market for Domestic 

Fittings 

2449.	 The MDA did not increase output or expand the size of the market for Domestic Fittings. 

(Infra ¶¶ 2450-2453). 

2450.	 McWane had not expected that entry by Sigma – through the MDA or independently – 

would increase the size of the Domestic Fittings market. (CX 0729 at 001 (Tatman July 

21, 2009 email: “having more Domestic suppliers doesn’t really increase the size of the 

pie”); CX 2481 (Nowlin, Dep. at 138-139) (calling the idea having more domestic 

suppliers does not really increase the size of the pie “a fairly obvious statement.”)). 

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2451.	 In a June 2009 presentation, Mr. Tatman noted that having multiple domestic suppliers 

would not significantly increase the overall Domestic Fittings market size and that a net 

tonnage gain scenario for McWane was unlikely. (CX 0076 at 006; Tatman, Tr. 656). 

2452.	 Mr. Walton advocated against the MDA because he viewed every sale that Sigma made 

as a lost sale for McWane, and could also lead to the loss of business on non-Domestic 

Fittings. (CX 0111; CX 2485 (Walton, Dep. at 34-35 (explaining that he made this 

recommendation to Mr. McCullough)). 

2453.	 The MDA did not, in fact, increase the size of the Domestic Fittings market. (CX 2527 

(Pais, IHT at 232-233) (McWane’s sales would have been the same without the MDA: 

“Q. But by and large, you think the vast majority of customers would have purchase[d] 

those domestic fittings [that Sigma sold under the MDA] from McWane? A. Yes.”); CX 

2531 (Rybacki, Dep. at 160-161) (“The fact that Sigma had access to McWane fittings 

under the MDA, that didn’t cause there to be more domestic jobs; is that right? A. 

Correct.” “Q. . . . By having access to those fittings, you didn’t expand the size of the 

pie, if you will, you expanded Sigma’s ability to service a piece of that pie, is that fair? A. 

Yes.”)). 

11.10	 McWane and Sigma Entered into the MDA with Specific Intent to 

Monopolize the Domestic Fittings Market 

2454.	 McWane and Sigma entered into the MDA with specific intent to monopolize the 

Domestic Fittings market. (Infra ¶¶ 2455-2465). 

2455.	 McWane’s Exclusive Dealing Policy, as implemented through the MDA, was calculated 

to put financial pressure on Star and to prevent it from gaining credibility with customers. 

(CX 0997 at 003). 

2456.	 As early as February 20, 2009, in assessing Sigma’s option for private label supply of 

Domestic Fittings from McWane, Mr. Pais informed Walter Florence, a Sigma Board 

Member, that Sigma may be able to use its “relationship with McWane” to enter into a 

supply relationship that would “marginalize Star.” (CX 1003 at 004). 

2457.	 Messrs. McCullough, Tatman, Willett, Jansen, Brown and Walton had a meeting on or 

about August 20, 2009 at which they discussed, among other things, the decision to sell 

Domestic Fittings to Sigma through the MDA. (CX 2353 (Mr. Walton’s handwritten 

notes from that meeting); (CX 2485 (Walton, Dep. at 37-38)). 

2458.	 At the August 20, 2009 meeting, Mr. McCullough made the following points about 

selling Domestic Fittings to Sigma through the MDA: 

* LM want to sell SIGMA to put pressure on Star. LM hopefully 

to drive Star out of business. Would rather have competition other 

than Star. 

LM thinks that we should sell SIGMA as an insurance policy and 

to continue to put pressure on Star.... LM approved Rick’s 

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2459. 

2460. 

2461. 

2462. 

2463. 

2464. 

recommendation page of his PowerPoint presentation on selling 

SIGMA.” 

(CX 2353 at 004 (emphasis added) (Mr. Walton handwritten notes of August 20, 2009 

meeting); (CX 2485 (Walton, Dep. 42-43 (“I wrote down that Leon said that . . . I 

remember it more as comments that Leon made towards the end of the meeting.”)). 

In evaluating the decision to sell Domestic Fittings to Sigma, Mr. Tatman wrote that he 

did not think that Sigma would be “willing to generate little to no incremental margin $ 

just to help us block Star.” (CX 0076 at 008; CX 2485 (Walton, Dep. at 67-69) (Mr. 

Walton had asked Mr. Tatman to state his recommendations for responding to the 

potential Star and Sigma entry)). 

In a July 27, 2009 presentation titled “Sigma - Domestic Review Session,” Mr. Tatman 

concluded that having Sigma sell McWane branded product should (1) “reduce Star’s 

ability to grow share,” (2) “keep[] additional overcapacity from being added to the 

industry,” and (3) “help drive some additional level of price stability.” (CX 0465 at 010; 

see also CX 0170 at 009 (subsequent version of same presentation sent to McCullough 

and Walton)). 

{

 (CX 1022 at 003, in camera). 

As Mr. Pais explained in a September 22, 2009 dictated message: “[I]f we do our job 

right, it might isolate Star and make them suffer with their investment even more, 

because they may not be able to gain credibility .... We need to develop an exclusive 

agreement arrangement with each customer . . . or we will end up strengthening Star.” 

(CX 0997 at 003-004; Pais, Tr. 1842-1846). 

Mr. Rona also recognized that the McWane Exclusive Dealing Policy in which Sigma 

agreed to participate under the MDA would make Star’s entry more difficult. (CX 2529 

(Rona, IHT at 195-196 (“[T]here’s no question for any entrant that requiring exclusivity 

on those parts would be inherently more difficult than without it”)). 

Mr. Tatman’s budget for 2010, prepared after the MDA was signed and the Exclusive 

Dealing Policy was announced, noted that Domestic pricing would erode if Star emerged 

as a legitimate competitor, but assumed that the competitive threat from Star had been 

neutralized. (CX 0102 at 001 (2010 Budget narrative, assuming that Domestic Fittings 

pricing would remain flat, and that there would be no loss of Domestic Fittings market 

share to Star); CX 0102 at 002 (noting risk of “erosion of domestic pricing if Star 

emerges as a legitimate competitor”); Tatman, Tr. 982-988, 1046; see also CX 0454 

(Tatman emailing budget narrative to Walton and McCullough on October 30, 2009, and 

noting that “Star’s impact is still unknown, but they do represent some risk in market 

pricing if they indeed are able to become a viable competitor for domestic fittings.”)). 

In addition to marginalizing Star, Sigma also believed that the MDA could benefit Sigma 

by improving pricing in the non-Domestic Fittings market. Sigma thought that “a healthy 

2465.
 

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business relationship between us [Sigma] buying from them [McWane] and meeting the 

spirit of the [MDA] agreement,” could lead to “an increase in the price in the market, 

then the market would come to a better price” for imported Fittings. (CX 2529; Rona, 

IHT at 200-202) (discussing CX 0266 at 003); CX 0266 at 003 (Rona August 31, 2009 

internal MDA negotiation comments noting possibility that a healthy relationship with 

McWane could lead to higher blended Fittings multipliers: “We have a better chance the 

a healthy relationship leads to a X =.30 on the blended . . . .”); CX 0278 at 001 (Mr. Pais 

email referring to the “spirit of the agreement’); CX 0997 at 003 (Mr. Pais expressing the 

hope that the MDA would “stabilize the market”)). 

12	 As a Result of Its Excusive Dealing Policy and the MDA, McWane Was Able to 

Maintain Its Monopoly Power in the Domestic Fittings Market 

2466.	 As a result of its Excusive Dealing Policy and the MDA, McWane was able to maintain 

its monopoly power in the Domestic Fittings market. (Infra ¶¶ 2467-2472). 

2467.	 If Sigma had independently entered the market for domestically manufactured Fittings, 

competition would have been enhanced and consumer welfare increased, resulting in 

lower prices. (CX 2260-A (Schumann Rep. at 80, 82-83)). 

2468.	 McWane’s Exclusive Dealing Policy lowered the degree of competition that otherwise 

would have existed between McWane and Star, resulting in lower consumer welfare and 

higher prices. (CX 2260-A (Schumann Rep. at 78-79); Schumann, Tr. 3770). 

2469.	 McWane’s Exclusive Dealing Policy eliminated the competition in the Domestic Fittings 

market for day-to-day bids and erected a barrier to entry that impeded Star’s growth and 

its ability to efficiently manufacture Domestic Fittings in the long run. (CX 2260-A 

(Schumann Rep. at 78-79). 

2470.	 By using its market power to impede Star’s growth, McWane managed to maintain a 

level of monopoly power that Star otherwise would have diminished. (CX 2260-A 

(Schumann Rep. at 78). 

2471.	 By denying Star the services of Distributors that represented such a large share of the 

U.S. market, McWane through its full support policy erected a barrier to entry that 

impeded Star’s growth and its ability to most efficiently manufacture Domestic Fittings. 

(CX 2260-A (Schumann Rep. at 78)). 

2472.	 By unilaterally imposing an exclusive dealing form of vertical restraint on waterworks 

Distributors, McWane acted to maintain its monopoly position and monopoly power 

whenever local, state, or federal regulations required that waterworks projects use only 

domestically manufactured Fittings and when customers otherwise exhibited a strong 

preference for domestically produced Fittings. (CX 2260-A (Schumann Rep. at 57)). 

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12.1	 McWane Was Able to Maintain Its Dominant Share of Domestic Fittings in 

2010 

2473.	 Despite Star’s entry, McWane maintained a dominant market position in Domestic 

Fittings, with a market share of { } in 2010 and { } in 2011. (CX 2260 at 021 

(Schumann Rep. at 19 tbl. 2), in camera). 

2474.	 Distributors can purchase Domestic Fittings from only two manufacturers, Star and 

McWane, since they are the only Domestic Fittings suppliers. (McCutcheon, Tr. 2259; 

Webb, Tr. 2748-2749 (HD Supply purchases Domestic Fittings primarily from McWane, 

and only from Sigma when Sigma was selling McWane Fittings); Thees, Tr. 3118-3119, 

3084-3085 (Ferguson currently purchases approximately 95 percent of its Domestic 

Fittings from McWane, and a “little bit” from Star, and only purchased McWanemanufactured Domestic Fittings from Sigma when Sigma was selling McWane Fittings); 

Sheley, Tr. 3406 (Illinois Meter purchases Domestic Fittings from McWane only)). 

12.2	 McWane Was Able to Increase Prices of Domestic Fittings in 2010 

2475.	 As a result of its Excusive Dealing Policy and the MDA, McWane was able to increase 

prices of Domestic Fittings in 2010. (Infra ¶¶ 2476-2484). 

2476.	 In a November 3, 2009 email, Mr. Jansen instructed the McWane sales team to use the 

Exclusive Dealing Policy to protect the price of Domestic Fittings: “when you have 

someone say that we need to match pricing due to the other guys we need to take a firm 

stance and ask who is going to use them. There can be a price out there but if no one 

uses it then it becomes a mute [sic] point.” (CX 0108 at 001 (emphasis in original)). 

2477.	 McWane was able to refuse to offer Project Pricing for Domestic Fittings in a local 

market “unless Star is an issue.” (CX 2199 (rejecting request for Project Pricing in 

August 2010); CX 2480 (Napoli, Dep. 87-88)). 

2478.	 For example, in response to an HD Supply request for a volume pricing quote for 

Domestic Fittings, Mr. Napoli declined to lower the price: “No. We are the only one who 

makes the full line of 24” and down. No need to drop the price unless Star is an issue.” 

(CX 2199 at 001; CX 2480 (Napoli, Dep. at 87-88)). 

2479.	 Distributors believe that if Sigma had entered the Domestic Fittings market Domestic 

Fittings prices would have been lower. (CX 2489 (Morrison, IHT at 92-93) (“Now, if 

there’s three players in the domestic market, there’s no reason to think that the same 

situation wouldn’t be occurring, that there’d be people wanting to deviate from the socalled standard cost to get an order.”); CX 2515 (Sheley, IHT at 144-145) (“I think – with 

three players in the market, I believe Tyler’s position would have folded immediately. . . . 

It would have put a negotiable position in the marketplace. . . . If Sigma would have 

made the same move [entered the Domestic Fittings market], I think there would have 

been a very minimal price increase at best.”)). 

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2480.	 Mr. Tatman has specifically refused to lower Domestic Fittings prices in response to 

competition from Star unless McWane saw evidence that it was starting to lose business. 

(CX 2192; CX 2480 (Napoli, Dep. 88-90)). 

2481.	 McWane was able to increase its prices for Domestic Fittings following the passage of 

ARRA. (CX 2544 (Coryn, Dep. at 88-89); Webb, Tr. 2736-2738 (prices for McWane’s 

Domestic Fittings increased during the ARRA period)). 

2482.	 On December 21, 2009, Mr. Tatman sent out customer letters announcing multiplier 

increases for Domestic Fittings (amounting to a 7% net increase across all sizes), 

effective January 22, 2010. (CX 1663 at 001-002; see also CX 1656 at 001-003; CX 

1657 at 001-003; Tatman, Tr. 811). 

2483.	 {

 (RX-632 at 027, in camera; Tatman, Tr. 1004, in camera). 

2484.	 McWane has reduced the rebates it offers for Domestic Fittings. (E.g., CX 2513 (Webb, 

IHT at 98-100)). 

12.3	 There Were Delays and Quality Shortfalls in McWane’s Supply of Domestic 

Fittings to Sigma Under the MDA 

2485.	 There were delays and quality shortfalls in McWane’s supply of Domestic Fittings to 

Sigma under the MDA. (Infra ¶¶ 2486-2491). 

2486.	 Having implemented its plan to keep Sigma and Star out of the Domestic Fittings market, 

McWane was unable to keep up with demand for Domestic Fittings. (CX 1521 at 001 

(during the MDA, McWane was “backed up in EVERYTHING including 4”-24” A 

items”); Rona, Tr. 1565-1566 (describing McWane “backlog” and “ramp up” issues, and 

other “teething pains” in implementing the MDA); CX 2529 (Rona, IHT at 222-223) 

(noting McWane’s “manufacturing problems as a result of the added volume”); CX 2530 

(Rona, Dep. at 304-306); CX 2527 (Pais, IHT at 201); see also CX 1853 at 001 (Mr. Pais 

writes to the M20 management group “I am aware of the various – yours and others – 

concerns about [McWane’s] deliveries.”); CX 1460 at 002(Sigma’s “customers are 

becoming very impatient with [Sigma] on the flow of information and material from 

[McWane].”)). 

2487.	 Sigma received “constant complaints” about the McWane Domestic Fittings it sold, even 

before the execution of the MDA. (CX 2524 (Box, Dep. at 93-94)). 

2488.	 Sigma received complaints from its OEM customers about the quality of the McWane 

Fittings it sold. (CX 2524 (Box, Dep. at 88)). Sigma received Domestic Fittings through 

the MDA that were not up to Sigma’s quality standards, and Sigma had to repair those 

Fittings. (CX 2524 (Box, Dep. at 89)). 

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2489.	 McWane refused to change its internal quality control measures in order to meet Sigma’s 

standards. (CX 1537 at 001 (Box writing on September 29, 2009 that Tatman was 

“making sure we understood they would not change their internal acceptance criteria as a 

result of the MDA”)). 

2490.	 Sigma sometimes had to return bad Fittings to McWane, which could double the lead 

time from 4 weeks to 8 weeks, causing serious delays on the projects. (CX 2524 (Box, 

Dep. at 90-91)). 

2491.	 McWane did not improve their attention to quality after they signed the MDA with 

Sigma. (CX 2524 (Box, Dep. at 95-96)). 

12.4	 McWane Terminated the MDA After It Received Notice of the FTC 

Investigation, but Has Continued to Sell Domestic Fittings to Sigma 

2492.	 McWane terminated the MDA after it received notice of the FTC investigation, but has 

continued to sell Domestic Fittings to Sigma. (Infra ¶¶ 2493-2496). 

2493.	 The MDA was in effect from approximately September 2009 through August 2010. 

(Rona, Tr. 1704; CX 1435 at 002; Pais, Tr. 1826 (Sigma received a notice of termination 

of the MDA from McWane in early 2010)). 

2494.	 On February 17, 2010, Mr. Tatman delivered to Mr. Pais a notice of termination under 

the MDA, to be effective 180 days thereafter. (CX 1435 at 001-002). 

2495.	 The Federal Trade Commission notified McWane of its antitrust concerns about 

McWane’s Exclusive Dealing Policy in January 2010. (Letter dated January 22, 2010, 

from Christopher G. Renner, Attorney, Federal Trade Commission, to G. Ruffner Page, 

Jr., President, McWane, Inc. (Attachment B)40). 

2496.	 After McWane terminated the MDA, it supplied Sigma with Domestic Fittings 

throughout 2010 and continues to do so today. (CX 2530 (Rona, Dep. at 298-299); CX 

1472 (February 16, 2011 Rona email stating “I received a call from Tyler related to our 

agreement for domestic fittings”); CX 1747 at 003 (showing Sigma Domestic Fitting 

sales in each month of 2010); see also CX 2026 at 029, in camera)). 

40 See Fed. R. Evid. 201(c)-(d). 

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PROPOSED CONCLUSIONS OF LAW 

A.	 GENERAL 

1.	 The Federal Trade Commission (“FTC”) has jurisdiction over the subject matter 

of this proceeding and over Respondent, McWane, Inc. (“McWane”). 

2.	 McWane is, and at all relevant times has been, a corporation as “corporation” is 

defined by Section 4 of the FTC Act, 15 U.S.C. § 44, as amended. 

3.	 McWane’s acts and practices with respect to Fittings are in or affect commerce as 

“commerce” is defined in Section 4 of the Federal Trade Commission Act, 15 

U.S.C. § 44. 

4.	 Section 5 of the FTC Act prohibits “unfair methods of competition in or affecting 

commerce, and unfair or deceptive acts or practices in or affecting commerce.” 

15 U.S.C. § 45(a)(1) (2008). 

5.	 Conduct that violates Section 1 or 2 of the Sherman Act is deemed to constitute 

an unfair method of competition and hence a violation of Section 5 of the FTC 

Act as well. FTC v. Cement Inst., 333 U.S. 683, 694 (1948); Fashion 

Originators’ Guild v. FTC, 312 U.S. 457, 463-64 (1941). 

B.	 MARKET DEFINITION 

6.	 The standards for defining a relevant antitrust market under the Sherman Act are 

the same as those developed for the analysis of mergers under the Clayton Act. 

United States v. Grinnell Corp., 384 U.S. 563, 572-73 (1966); Image Tech. Servs. 

v. Eastman Kodak Co., 125 F.3d 1195, 1204 n.3 (9th Cir. 1997). 

7.	 A well-defined antitrust market consists of “any grouping of sales whose sellers, 

if unified by a hypothetical cartel or merger, could profitably raise prices 

significantly above the competitive level.” Coastal Fuels Inc. v. Caribbean 

Petroleum Corp., 79 F.3d 182, 197 (1st Cir. 1996), cert. denied, 519 U.S. 927 

(1996); Brown Shoe Co., v. United States, 370 U.S. 294, 325-26 (1962); 2010 

Horizontal Merger Guidelines at § 4.1.1. A relevant market is comprised of a 

relevant product market and a relevant geographic market. Brown Shoe, 370 U.S. 

at 325-26 (1962). 

8.	 A relevant product market includes all products or services that are reasonable 

substitutes for the same purpose or use from a buyer’s point of view. United 

States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 394-95 (1956); Rebel Oil 

Co. v. Atl. Richfield Co., 51 F.3d 1421, 1435 (9th Cir. 1995); see also In re R.R. 

Donnelley & Sons Co., 120 F.T.C. 36, 153 (1995). 

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9.	 The key factors in identifying the bounds of a relevant product market are “(1) the 

reasonable interchangeability of use” by consumers and “(2) the cross-elasticity of 

demand between the product itself and substitutes for it.” FTC v. Arch Coal, Inc., 

329 F. Supp. 2d 109, 119 (D.D.C. 2004) (quoting Brown Shoe, 370 U.S. at 325); 

FTC v. Swedish Match, 131 F. Supp. 2d 151, 157 (D.D.C. 2000); FTC v. Staples, 

970 F. Supp. 1066, 1074 (D.D.C. 1997). 

10.	 The relevant geographic market is “the ‘area of effective competition . . . in which 

the seller operates, and to which the purchaser can practicably turn for supplies.’” 

United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 359 (quoting Tampa 

Elec. v. Nashville Coal Co., 365 U.S. 320, 327 (1961)); Morgenstern v. Wilson, 

29 F.3d 1291, 1296 (8th Cir. 1994); 2010 Horizontal Merger Guidelines at 

§ 4.2.2; In re Polypore, 2010 FTC LEXIS 17, at *492. 

11.	 The supply of ductile iron pipe fittings 24” or less in diameter (“Fittings”) for use 

on waterworks projects with Open Specifications in the United States is a relevant 

market (the “Fittings market”). 

12.	 The supply of Domestic Fittings for use on waterworks projects with Domesticonly specifications in the United States is a relevant market (“the Domestic 

Fittings market”). 

C.	 MONOPOLY AND MARKET POWER 

13.	 Monopoly power is “the power to control prices or exclude competition.” E.I. du 

Pont de Nemours & Co., 351 U.S. 377, 391 (1956); accord Eastman Kodak Co. v. 

Image Tech. Servs., 504 U.S. 451, 481 (1992). 

14.	 Market shares in excess of 90% are sufficient to establish the presumption of 

monopoly power and market power in markets characterized by high barriers to 

entry. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1339-1340 (11th Cir. 

2010); see also E.I. DuPont de Nemours & Co., 351 U.S. 377, 379, 391 (1956); 

Grinnell Corp., 384 U.S. at 567; Eastman Kodak Co. v. Image Tech. Servs., 504 

U.S. 451, 481 (1992); United States v. Microsoft Corp., 253 F.3d 34, 51-56; 

Graphic Prods. Distribs. v. Itek Corp., 717 F.2d 1560, 1570 (11th Cir. 1983); 

Staples, 970 F. Supp. at 1081-82, 1086. 

15.	 Market shares sufficient to support a monopolization claim are also sufficient to 

support attempted monopolization. See, e.g., Defiance Hosp. v. FausterCameron, Inc., 344 F. Supp. 2d 1097, 1112-13 (N.D. Ohio 2004); see also 

McGahee v. N. Propane Gas Co., 858 F.2d 1487, 1506 (11th Cir. 1988); Arthur S. 

Langenderfer, Inc. v. S.E. Johnson Co., 917 F.2d 1413, 1443 (6th Cir. 1990). 

16.	 Market power is the collective “ability [of firms] to significantly affect prices and 

other outcomes in the [] market.” Cal. ex rel. Harris v. Safeway, Inc., 651 F.3d 

1118, 1154 (9th Cir. 2011). Collective market shares sufficient to establish 

monopoly power under Section 2 are sufficient to establish market power under 

Section 1. Id. at 1154 n.7. 

2 
 

 

PUBLIC RECORD

17.	 McWane has, and at all relevant times has had, monopoly power or the dangerous 

probability of achieving monopoly power in the Domestic Fittings market. 

18.	 McWane, Sigma and Star collectively have, and at all relevant times have had, 

market power in the relevant Fittings market. 

D.	 COUNT ONE: MCWANE ORCHESTRATED A CONSPIRACY WITH ITS COMPETITORS TO 

RESTRAIN PRICE COMPETITION BY LIMITING PROJECT PRICING 

19.	 Agreements among horizontal competitors to raise, lower, stabilize, or otherwise 

restrain price competition are per se illegal under Section 1 of the Sherman Act 

and Section 5 of the FTC Act. United States v. Socony-Vacuum Oil Co., 310 U.S. 

150, 224 n.59 (1940); Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 648 n.10 

(1980) (per curiam); United States v. Gen. Motors Corp., 384 U.S. 127, 148 

(1966). 

20.	 An antitrust agreement is established when two or more firms share “a unity of 

purpose or a common design and understanding, or a meeting of the minds,” or in 

other words, share a “conscious commitment to a common scheme designed to 

achieve an unlawful object.” Copperweld Corp. v. Independence Tube Corp., 467 

U.S. 752, 771 (1984); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 

(1984). 

21.	 An antitrust agreement is established by evidence of the conspirators’ parallel 

pricing conduct along with various “plus” factors that tend to exclude the 

possibility that the alleged conspirators acted independently. See In re Travel 

Agent Comm’n Antitrust Litig., 583 F.3d 896, 907 (6th Cir. 2009); CasonMerenda v. Detroit Med. Ctr., 2012-1 Trade Cas. (CCH) ¶ 77,893 (E.D. Mich. 

Mar. 22, 2012). 

22.	 An antitrust agreement may also be established by evidence of a quid pro quo 

arrangement or mutual assurances regarding price, which can be communicated 

verbally or via conduct alone. Sugar Inst. v. United States, 297 U.S. 553, 601 

(1936); Gen. Motors Corp., 384 U.S. at 142-43; see also Isaksen v. Vt. Castings, 

Inc., 825 F.2d 1158, 1164 (7th Cir. 1987); Phillip E. Areeda & Herbert 

Hovenkamp, Antitrust Law ¶¶ 1404, 1410c (Supp. 2012). 

23.	 McWane, Sigma and Star agreed to stabilize and increase Fittings prices by 

curtailing Project Pricing and increasing price transparency. 

E.	 COUNT TWO: MCWANE AND ITS COMPETITORS PARTICIPATED IN AN ILLEGAL 

INFORMATION EXCHANGE 

24.	 The elements of a Section 1 violation are: (1) the existence of a contract, 

combination, or conspiracy among two or more separate entities (i.e., concerted 

action), that (2) unreasonably restrains trade. E.g., Law v. NCAA, 134 F.3d 1010, 

1016 (10th Cir. 1998). 

3 
 

PUBLIC RECORD

25.	 The reciprocal exchange of information among competitors constitutes concerted 

action under Section 1. Container Corp., 393 U.S. 333, 335 (1969); see also 

Todd v. Exxon Corp., 275 F.3d 191, 196 (2d Cir. 2001); Areeda & Hovenkamp, 

Antitrust Law ¶ 1409a; see also In re N. Tex. Specialty Physicians, 140 F.T.C. 

715, 738 (2005). 

26.	 A prima facie case that an information exchange will likely harm competition is 

satisfied by showing that the structure of the market is susceptible to coordination, 

and that the nature of the information exchanged has the potential or tendency to 

facilitate coordination. See McWane, slip op. at 21; Gypsum, 438 U.S. at 441 

n. 16; Todd v. Exxon, 275 F.3d at 207-08. 

27.	 Complaint Counsel has established a prima facie case that the DIFRA 

Information Exchange caused competitive harm because the structure of the 

Fittings market is susceptible to coordination and the nature of the DIFRA 

Information Exchange has the potential and tendency to facilitate coordination. 

28.	 To rebut a prima facie case of competitive harm, horizontal restraints must be (1) 

reasonably necessary to achieve a procompetitive efficiency that is (2) legitimate 

(i.e., “cognizable” and “plausible”) and (3) supported by evidence in the record. 

In re Realcomp, slip op. at 16 (Nov. 2, 2009); see also Broadcast Music, Inc. v. 

CBS, Inc., 441 U.S. 1 (1979); FTC v. Indiana Fed’n of Dentists, 476 U.S. 447 

(1986); In re Polygram Holding, Inc., 136 F.T.C. 310 (2003); Areeda & 

Hovenkamp, Antitrust Law,¶1505. 

29.	 McWane has not shown that the DIFRA Information Exchange is reasonably 

necessary to achieve any cognizable, plausible and valid efficiency justification. 

F.	 COUNT THREE: MCWANE INVITED ITS COMPETITORS TO JOIN A PER SE UNLAWFUL 

CONSPIRACY 

30.	 An invitation to collude on price constitutes an unfair method of competition in 

violation of Section 5 of the FTC Act. McWane, slip op. at 20-22. See also Liu v. 

Amerco, 677 F.3d 489 (1st Cir. 2012); Areeda & Hovenkamp, Antitrust Law 

& 1419; Stephen Calkins, Counterpoint: The Legal Foundation of the 

Commission’s Use of Section 5 to Challenge Invitations to Collude is Secure, 

ANTITRUST 69 (2000). 

4 
 

PUBLIC RECORD

31.	 Invitations to collude need not be private communications and “can occur in 

speeches at industry conferences, announcements of future prices, statements on 

earnings calls, and in other public ways.” In re Delta/AirTran Baggage Fee 

Antitrust Litig., 733 F. Supp.2d 1348, 1360 (N.D. Ga. 2010) (citing complaint in 

In re Valassis Commc’ns, Inc., 2006 FTC LEXIS 25 (April 19, 2006)); see also In 

re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906 

F.2d 432, 445-47 (9th Cir. 1990); Standard Iron Works v. ArcelorMittal USA, 

Inc., 639 F. Supp. 2d 877, 892-95 (N.D. Ill. 2009); In re Travel Agency Comm=n 

Antitrust Litig., 898 F. Supp. 685, 690 (D. Minn. 1995); In re U-Haul Int’l Inc., 

FTC File No. 081 0157 (2010). 

G.	 COUNT FOUR: MCWANE ENLISTED ITS COMPETITOR SIGMA AS A MASTER 

DISTRIBUTOR TO PREVENT COMPETITION IN THE DOMESTIC FITTINGS MARKET 

32.	 Under Section 1 of the Sherman Act “concerted action may be amply 

demonstrated by an express agreement.” See, e.g., United States. v. Delta Dental, 

943 F. Supp. 172, 174-174 (D.R.I. 1996). 

33.	 The Master Distribution Agreement (“MDA”) between McWane and Sigma 

constitutes concerted action under Section 1 of the Sherman Act. 

34.	 For purposes of Section 1 analysis, a firm is considered a potential competitor “if 

there is evidence that entry by the firm is reasonably probable in the absence of 

the relevant agreement.” McWane, slip op. at 22 n.18 (citing Yamaha Motor Co. 

v. FTC, 657 F.2d 971, 977-79 (8th Cir. 1981); United States v. Siemens Corp., 

621 F.2d 499, 506-07 (2d Cir. 1980); Engine Specialties, Inc. v. Bombardier, Ltd., 

605 F.2d 1 (1st Cir. 1979); DOJ/FTC Guidelines, § 1.1 n.6 (2000). 

35.	 Sigma was a potential competitor in the Domestic Fittings market prior to signing 

the MDA with McWane. 

36.	 Agreements among actual and potential competitors to allocate markets 

unreasonably restrain trade and are per se unlawful. See, e.g., Palmer v. BRG of 

Georgia, Inc., 498 U.S. 46 (1990) (per curiam); United States v. Topco Assocs., 

405 U.S. 596, 608, 612 (1972); Blue Cross & Blue Shield United v. Marshfield 

Clinic, 65 F.3d 1406 (7th Cir. 1995); Engine Specialties, Inc. v. Bombardier, Ltd., 

605 F.2d 1 (1st Cir. 1979); Eli Lilly & Co. v. Zenith Goldline Pharm., Inc., 172 F. 

Supp. 2d 1060 (S.D. Ind. 2001). 

37.	 The MDA between McWane and Sigma is analogous to an agreement to allocate 

the Domestic Fittings market to McWane and is per se unlawful under Section 1 

of the Sherman Act. 

5 
 

PUBLIC RECORD

38.	 Alternatively, Complaint Counsel has established a prima facie case that the 

MDA unreasonably restrained trade in Domestic Fittings in two separate ways: 

(i) the inherently suspect nature of the restraint has been shown; (ii) the 

anticompetitive nature of the restraint has been shown together with evidence of 

McWane and Sigma’s market power. See, e.g., Realcomp II, Ltd. v. FTC, 635 

F.3d 815, 825-826 (6th Cir. 2011); In re Polygram Holding, Inc., 136 F.T.C. 310 

(2003); United States v. Realty Multi-List, Inc., 629 F.2d 1351 (5th Cir. 1980). 

39.	 McWane has not shown that the MDA is reasonably necessary to achieve any 

cognizable, plausible and valid efficiency justification. Broadcast Music, Inc. v. 

CBS, Inc., 441 U.S. 1 (1979); In re Polygram Holding, Inc., 136 F.T.C. 310 

(2003); Areeda & Hovenkamp, Antitrust Law,¶1505. 

H.	 COUNT FIVE: MCWANE AND SIGMA CONSPIRED TO MONOPOLIZE THE DOMESTIC 

FITTINGS MARKET BY EXCLUDING STAR 

40.	 The elements of a conspiracy to monopolize claim under Section 2 of the 

Sherman Act are (1) concerted action, with (2) the specific intent to monopolize, 

and (3) an overt act in furtherance of the conspiracy. Levine v. Cent. Fla. Med. 

Affiliates, 72 F.3d 1538, 1556 (11th Cir. 1996); Thompson v. Metro. Multi-List, 

Inc., 934 F.2d 1566, 1582 (11th Cir. 1991). 

41.	 The MDA agreement, executed by McWane and Sigma, satisfies the concerted 

action element of a conspiracy to monopolize claim. See, e.g., Fraser v. Major 

League Soccer, 284 F.3d at 68; Futurevision Cable Sys. of Wiggins, Inc. v. 

Multivision Cable TV Corp., 789 F. Supp. 760, 766 (S.D. Miss. 1992); Howard 

Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 254 n.7 (3d Cir. 

2010); U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 1001-1002 (11th 

Cir. 1993). 

42.	 The standard for proving specific intent under a conspiracy to monopolize claim 

is the same as it is for attempted monopolization: the intent to exclude 

competition or control prices. Am. Tobacco Co., 328 U.S. at 788-789; United 

States v. Consol. Laundries Corp., 291 F.2d 563, 573 (2d Cir. 1961); Robert’s 

Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, 491 F. Supp. 1199, 1223 (D. 

Haw. 1980). 

43.	 Specific intent may be established by direct evidence or inferred from “conduct 

that has no legitimate business justification but to destroy or damage 

competition.” GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 

27, 45 (D.D.C. 1998) (citing Ass’n for Intercollegiate Athletics for Women v. 

NCAA, 735 F.2d 577, 585 (D.C. Cir. 1984)); see also Broadcom Corp. v. 

Qualcomm Inc., 501 F.3d 297, 318 (3d Cir. 2007). 

44.	 “Specific intent in the antitrust context may be inferred from a defendant’s 

unlawful conduct.” Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 

F.3d 237, 257 (3d Cir. 2010). 

6 
PUBLIC RECORD

45.	 McWane and Sigma entered into the MDA with the specific intent to monopolize 

the Domestic Fittings market. 

46.	 McWane and Sigma took overt acts in furtherance of their conspiracy to 

monopolize the Domestic Fittings market. See Fraser v. Major League Soccer, 

284 F.3d at 68; United States v. Hickok, 77 F.3d at 1005-1006. 

I.	 COUNTS SIX AND SEVEN: MCWANE MONOPOLIZED OR ATTEMPTED TO MONOPOLIZE, 

THE MARKET FOR DOMESTIC FITTINGS 

47.	 The offense of monopolization has two elements: “the possession of monopoly 

power in the relevant market and (2) the willful acquisition or maintenance of that 

power as distinguished from growth or development as a consequence of superior 

product, business acumen or historic accident.” United States v. Grinnell Corp., 

384 U.S. 563, 570-71 (1966). 

48.	 Attempted monopolization requires proof “(1) that the defendant has engaged in 

predatory or anticompetitive conduct, with a (2) specific intent to monopolize, 

and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports 

v. McQuillan, 506 U.S. 447, 456 (1993); Lorain Journal Co. v. United States, 342 

U.S. 143, 148-152 (1951). 

49.	 The respondent’s “specific intent to destroy competition or build monopoly,” may 

be proven by direct evidence, or inferred from conduct alone where the 

defendant’s conduct is sufficiently egregious. See Times-Picayune Publ’g Co. v. 

United States, 345 U.S. 594, 626 (1953); accord Spectrum Sports v. McQuillan, 

506 U.S. 447, 454-456 (1993). 

50.	 Under Section 2, a prima facie case that exclusive dealing likely harms 

competition can be established with a showing that (1) there is a significant 

degree of market foreclosure, and (2) the ability of one or more significant rivals 

to compete is thereby impaired. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 

2012 U.S. App. LEXIS 20342, at *28 (3d Cir. 2012); United States v. Dentsply, 

399 F.3d 181 (3d Cir. 2005); Microsoft, 253 F.3d 34; McWane, slip op. at 25. 

51.	 Complaint Counsel has established that McWane’s Exclusive Dealing Policy 

caused a significant degree of market foreclosure, thereby impairing the ability of 

one or more significant rivals to compete. 

52.	 McWane has not rebutted Complaint Counsel’s prima facie case of competitive 

harm because McWane’s Exclusive Dealing Policy in not a form of competition 

on the merits and does not involve greater efficiency or enhanced consumer 

appeal. 

7 
PUBLIC RECORD

J.	 CONCLUSION 

53.	 The Order entered herein is necessary and appropriate to remedy and prevent the 

violations of law found to exist. FTC v. Nat’l Lead Co., 352 U.S. 419 (1957); 

FTC v. Ruberoid Co., 343 U.S. 470 (1952); Jacob Siegal & Co. v. FTC, 327 U.S. 

608 (1946); In re Polygram Holding, Inc., 136 F.T.C. 310 (2003). 

8 
 

 

Dated: December 19, 2012 Respectfully submitted, 

PUBLIC RECORD

s/ Linda M. Holleran 

Edward D. Hassi, Esq. 

Linda M. Holleran, Esq. 

J. Alexander Ansaldo, Esq. 

Joseph R. Baker, Esq. 

Thomas H. Brock, Esq. 

Monica M. Castillo, Esq. 

Mika Ikeda, Esq. 

Andrew K. Mann, Esq. 

Federal Trade Commission 

Bureau of Competition 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-3496 

Electronic Mail: ehassi@ftc.gov 
 

PUBLIC RECORD

ATTACHMENT A – SUMMARY OF TELEPHONE RECORD EVIDENCE
 
ATTACHMENT A - SUMMARY OF TELEPHONE RECORD EVIDENCE 

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ATTACHMENT A - SUMMARY OF TELEPHONE RECORD EVIDENCE 

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11 
 

PUBLIC RECORD

ATTACHMENT B – JANUARY 22, 2010 FTC LETTER TO McWANE 
PUBLIC RECORD
PUBLIC RECORD
PUBLIC RECORD
COMPLAINT COUNSEL’S EXHIBIT INDEX 

PUBLIC RECORD
IN THE MATTER OF MCWANE, INC. DOCKET NO. 9351 

COMPLAINT COUNSEL'S EXHIBIT INDEX 

Exhibit No. Description Date 

Also Referenced 

As Admissiblity In Camera Tria

CX 0001 -CX 0002 Intentionally Not Used N/A CX 0003 Bharat Agarwal's 2009 Calendar 5/21/2010 JX 0002-A 

Ordered 8/17/2012 

CX 0004 

E-mail from Robert Marr to Bharat Agarwal re: DI Fitting Usage 9/10/2009 JX 0002-A 

Ordered 8/17/2012 

CX 0005 

E-mail from Tilak Agarwal to Bharat Agarwal and Laxman Agarwal re: Visit 7/16/2009 JX 0002-A 

Ordered 8/17/2012 

CX 0006 -CX 0008 Intentionally Not Used N/A CX 0009 

E-mail from Dan McCutcheon to Utility Division Managers, Susan Schepps, Pam Garey et al. re: Tyler Letter 9/23/2009 JX 0002-A Tr. 2

CX 0010 

Letter from Jerry Jansen (Tyler/Union) and Scott Frank (Clow Water) to Valued Customer re: Products Available through Sigma 9/22/2009 JX 0002-A 

Tr. 254685470

CX 0011 

E-mail from Michael Berry to Dan McCutcheon re: Tyler statements in John Ristine's territory 9/21/2009 JX 0002-A Tr. 2

CX 0012 

REMOVED -- DUPLICATE EXHIBIT E-mail from Dan McCutcheon to Kirthi Jain re: FTC -10,11,12 3/29/2010 RX-601 JX 0002-A 

CX 0013 

E-mail from Dan McCutcheon to Jerry Webb re: HD/Sterling VA - Hot Lanes orders w/Attach: Acknowledgement1.pdf, Acknowledgement2.pdf, Acknowledgement.pdf 9/28/2009 JX 0002-A 

Tr. 243904393

CX 0014 

E-mail from Chuck Carrigan to Dan McCutcheon, Shaun Smith and Ramon Prado re: Jerry Webb Memo w/Attach: 090924 Jerry Webb Memo.pdf 9/24/2009 JX 0002-A Tr. 2

CX 0015 -CX 0016 Intentionally Not Used N/A CX 0017 Spreadsheet: DIPF Estimated Profitability 00/00/2010 JX 0002-A 

Ordered 8/31/2012 

CX 0018 Intentionally Not Used N/A CX 0019 Star 2010 Internal In-House Survey 00/00/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 1 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0020 

Spreadsheet: DIPF - Estimated Profitability w/Handwritten Notes 00/00/2010 JX 0002-A 

Ordered 8/31/2012 

CX 0021 

E-mail from Roy Pitts to Sean Kelly and Rick Fantham re: Tyler Union Announcement 9/22/2009 JX 0002-A 

CX 0021-A 

E-mail from Roy Pitts to Sean Kelly and Rick Fantham re: Tyler Union Announcement w/Attach: McWane Announcement Sept 22nd 2009.pdf 9/22/2009 Tr. 3301:14-16 

Tr. 33311

CX 0022 

E-mail from Rick Tatman to Roy Pitts re: Tyler Union Announcement 10/2/2009 JX 0002-A Tr. 3

CX 0023 

E-mail from Rick Tatman to Roy Pitts, Sean Kelly and Jerry Jansen re: MIXHAJOC.XLS w/Attach: MIXHAJOC.XLS 10/5/2009 JX 0002-A 

CX 0024 

E-mail from Jerry Jansen to Sean Kelly, Rick Tatman and Roy Pitts re: McWane Domestic Fittings 11/7/2009 JX 0002-A 

Tr. 33313

CX 0025 

REMOVED -- DUPLICATE EXHIBIT E-mail from Rick Tatman to Roy Pitts, Sean Kelly, Susan Welch et al. re: Hajoca Open Domestic fitting orders -TylerUnion 11/26/2009 RX-237 JX 0002-A Tr, 3

CX 0026 Intentionally Not Used N/A CX 0027 

E-mail from Roy Pitts to Sean Kelly, Jeff Kinsey, Rick Fantham et al. re: Tyler Union 3/10/2010 JX 0002-A Tr. 3

CX 0028 

E-mail from Rick Fantham to Paul Weinstein, Sean Kelly, Jeff Kinsey et al. re: Tyler Union Fittings 4/1/2010 JX 0002-A 

CX 0029 

E-mail from Roy Pitts to Rick Fantham and Sean Kelly re: 2010-2012 McWane Corporate Rebate Program 3/23/2010 JX 0002-A 

CX 0030 

E-mail from Sean Kelly to Rick Fantham and Roy Pitts re: McWane WW Org Chart 4/13/2010 JX 0002-A Tr. 3

CX 0031 -CX 0033 Intentionally Not Used N/A CX 0034 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Mult Change plan for your review 1/23/2008 JX 0002-A Tr. 2

CX 0035 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Tyler Map Import/Blended Multipliers w/Attach: Tyler Map 1/29/2008 JX 0002-A Tr. 2

CX 0036 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Casting Prices 4/7/2008 JX 0002-A 

CX 0037 

E-mail from Dan Dan McCutcheon to Ramesh Bhutada re: Star - Multiplier Change (California) 5/6/2008 JX 0002-A Tr. 2

* Connotes an objection on hearsay grounds.Confidential 2 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0038 

E-mail from Dan McCutcheon to Matt Minamyer, Susan Schepps, Neil McGillivray et al. re: Tyler increase letter from Ramon w/Attach: January 2008 Tyler Union Letter 1/14/2008 JX 0002-A 

Tr. 22392

CX 0039 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: JR and Casting prices 4/7/2008 JX 0002-A 

CX 0040 Intentionally Not Used N/A CX 0041 

E-mail from Dan McCutcheon to Navin Bhargava, Ravi Pallod and Bhagwan Bhutada re: E-mailing www.electrosteel.com w/Attach: www.eletrosteel.com.url 2/22/2008 Tr. 2370:20-22 Tr. 2

CX 0042 

E-mail from Kirthi Jain to Dan McCutcheon, Navin Bhargava, Matt Minamyer et al. re: Sales & Margin Report -Jan 2008 w/Attach: Jan Margin Report.xls 2/4/2008 JX 0002-A 

Ordered 8/31/2012 Tr. 2

CX 0043 Intentionally Not Used N/A 

CX 0044 

E-mail from Shaun Smith to Dan McCutcheon and Matt Minamyer re: Tulsa Bid Sleeves 4/2/2008 JX 0002-A 

Tr. 23204

CX 0045 Intentionally Not Used N/A 

CX 0046 

E-mail from Dan McCutcheon to Navin Bhargava and Ramesh Bhutada re: Market Master-Fittings 150k tons in U.S. 7/13/2006 JX 0002-A Tr. 2

CX 0047 

Letter from Jerry Jansen to Tyler/Union Utility Customers in AL, FL, GA, PR re: July 14, 2008 Price Change for Utility Fittings and Accessories 6/17/2008 JX 0002-A Tr. 2

CX 0048 

Summary of Third Meeting to Establish Trade Association for Ductile Water Works Fittings 11/21/2006 JX 0002-A Tr. 1

CX 0049 

E-mail from Dan McCutcheon to Margaret Powell and Navin Bhargava re: DIFRA report - Star Pipe w/Attach: DIFF_06Short0708_short_lg_lcan.xls 6/5/2008 JX 0002-A Tr. 2

CX 0050 Intentionally Not Used N/A CX 0051 

E-mail from Rick Tatman to Leon McCullough, Thomas Walton, Mike Vore et. al. re: RST Comments rebates 7/22/2008 JX 0002-A 

CX 0052 

E-mail from Bree Holland to Rick Tatman, tb2@sigmaco.com, Crawford et al. re DIFRA reports w/Attach: DIFRA Reports.pdf 6/17/2008 JX 0002-A 

Tr. 5105513832561

CX 0053 -CX 0066 Intentionally Not Used N/A CX 0067 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Notes for Sigma - Domestic Discussion w/Attach: Sigma and Domestic DIWF.doc 5/26/2009 JX 0002-A Tr. 6

* Connotes an objection on hearsay grounds.Confidential 3 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0068 Intentionally Not Used N/A CX 0069 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Additional Inputs Sigma and Domestic 5/27/2009 JX 0002-A Tr. 6

CX 0070 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Reasons to not sell Sigma 5/9/2009 JX 0002-A Tr. 6

CX 0071 -CX 0073 Intentionally Not Used N/A 

CX 0074 

E-mail from Rick Tatman to Thomas Walton re: Competition 6/24/2009 

CX 2355 (TUFTC-0031436 -

TU-FTC0031437) JX 0002-A 

Tr. 639775610

CX 0075 Intentionally Not Used N/A 

CX 0076 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: RST Response Competition w/Attach: Star Review June 29th.ppt 6/29/2009 JX 0002-A 

Tr. 65613

CX 0077 Intentionally Not Used N/A CX 0078 

E-mail from Siddharth Bhattacharji to Tom Brakefield, Larry Rybacki, Victor Pais et al. re: thoughts on plant work 6/11/2009 Tr. 3475:4-10 

CX 0079 Intentionally Not Used N/A 

CX 0080 

E-mail from Siddharth Bhattacharji to George Liu, Mitchell Rona, Victor Pais et al. re: yr discussions with XPF 5/23/2009 Tr. 3475:4-10 

CX 0081 

E-mail from Gopi Ramanathan to Stuart Box, Victor Pais, Siddharth Bhattacharji et al. re: Response on your Korea sourcing plan with strategic look @ other options 5/15/2009 Tr. 3475:4-10 

CX 0082 

E-mail from Siddharth Bhattacharji to Victor Pais re: pusan flash 5/7/2009 JX 0002-A 

CX 0083 

E-mail from Siddharth Bhattacharji to Victor Pais re: anything to add to this draft for BOD? w/Attach: BOD note on BA draft 040909.doc 4/9/2009 JX 0002-A Tr. 3

CX 0084 Intentionally Not Used N/A 

CX 0085 

E-mail from Victor Pais to Ryan Cardin re: Our appeal for help with the BA provision in the ARRA bill w/Attach: Appeal Letter to Sen Menendez-020109.pdf; ARRA-BA Amendment-012709.pdf; WASMA-Amendment-ARRAModification-012809.doc; Customer Letter-for-Open Choice020109.pdf 2/1/2009 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 4 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0086 

Letter from Victor Pais to SIG-BOD re: BOD Update with an Important MAP 6/5/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 0087 

E-mail from Victor Pais to Cindy Dayotas and Adam Warren re: E-mails LR may have missed w/Attach: Victor Victor Pais to M20_Urgent_Final Customer Letter for Sigma Pricing plan.msg; VP to M20_Important_Sales_GM_PBT $ Impact of Tyler Price Revision.msg; Victor Victor Pais (Sigma) to Perry Fowler (AGC)_Thank you for your support with EPA and BA Issue.msg 4/27/2009 Tr. 3475:4-10 

CX 0088 Intentionally Not Used N/A CX 0089 Sigma MDA FAQ 9/23/2009 Tr. 3475:4-10 CX 0090 

E-mail from Stuart Box to Billie Sue Atkinson, Mitchell Rona, Gopi Ramanathan et al.re: SDP trip report to Mueller Albertville 7/9/2009 

Tr. 1533:13,16-17 Tr. 1

CX 0091 

E-mail from Victor Pais to Siddharth Bhattacharji re: Powerpoint Presentation for Mtg with Frontenac w/Attach: Stuart Box 122309 Revised.pptx 11/20/2009 Tr. 3475:4-10 

CX 0092 

REMOVED -- DUPLICATE EXHIBIT E-mail from Rick Tatman to Laura Alvey, Debbie Vinson, Susan Welch et al. re: Announcement Letter and Q&A document for today's Conference Call Tuesday 9-22, @ 10:30 am EST w/Attach: McWane Announcement Sept 22nd 2009.pdf; Sept 22nd Announcement Q&A.doc 9/22/2009 CX 1606 JX 0002-A 

CX 0093 Intentionally Not Used N/A CX 0094 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: ACIPCO - Star and Sigma 10/16/2009 JX 0002-A 

CX 0095 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Jerry Burns Call - ACIPCO Domestic Arrangement 10/22/2009 JX 0002-A 

CX 0096 Intentionally Not Used N/A CX 0097 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Large Dia Fittings ACIPCO - TylerUnion 11/5/2009 JX 0002-A 

CX 0098 OEM Distribution Agreement (Draft edited 9/7/09) 9/7/2009 Tr. 3475:4-10 CX 0099 

E-mail from Jim McGivern to Walter Florence, Jeff Marcus, Victor Pais et al. re: conf. call 7/28/2009 JX 0002-A Tr. 1

* Connotes an objection on hearsay grounds.Confidential 5 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0100 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Draft 2010 Hajoca Corporate Rebate Program.doc w/Attach: Draft 2010 Hajoca Corporate Rebate Program.doc 11/17/2009 JX 0002-A Tr. 7

CX 0101 

E-mail from Walter Florence to Siddharth Bhattacharji, Victor Pais, James P. Smith et al. re: BA Update 3/17/2009 JX 0002-A 

CX 0102 TylerUnion (USA) 2010 Budget 00/00/2010 JX 0002-A Tr. 9

CX 0103 Pages from Rick Tatman's Composition Book 12/1/2009 JX 0002-A 

CX 0104 Intentionally Not Used N/A CX 0105 Domestic Market Strategy 00/00/2009 JX 0002-A CX 0106 

E-mail from David Henrie to Scott Frank and Shavel Traver re: HD Wichita 10/5/2009 JX 0002-A 

CX 0107 

E-mail from Greg Adams to Jerry Jansen re: Urgent domestic job issue 11/3/2009 JX 0002-A 

CX 0108 

E-mail from Jerry Jansen to Aaron Huttel, Dan Todd, Greg Adams et al. re: Domestic Stance 11/3/2009 JX 0002-A 

CX 0109 Intentionally Not Used N/A CX 0110 

E-mail from Greg Adams to Jerry Jansen re: Weekly for Greg Adams ending 10-3-09 10/4/2009 JX 0002-A 

CX 0111 

E-mail from Leon McCullough to Thomas Walton and Rick Tatman re: No Subject 8/17/2009 JX 0002-A 

Tr. 75567

CX 0112 Intentionally Not Used N/A CX 0113 

E-mail from Rick Tatman to Dennis Charko re: McWane Domestic Fittings 2010 brand/market protection 8/24/2009 JX 0002-A Tr. 6

CX 0114 Intentionally Not Used N/A CX 0115 

E-mail from Thomas Walton to Rick Tatman and Kent Brown re: No Subject w/Attach: Prices Reduction and Rebate Analysis 081409.xls 8/18/2009 JX 0002-A 

CX 0116 Intentionally Not Used N/A CX 0117 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Updated Sigma Review August 20th 2009.ppt w/Attach: Updated Sigma Review August 20th 2009.ppt 8/21/2009 JX 0002-A 

CX 0118 Presentation: Domestic DIWF Program & Policy Review 1/28/2010 JX 0002-A 

Tr. 7725:

CX 0119 TylerUnion Presentation: Key Market Communications 9/22/2009 JX 0002-A Tr. 7

CX 0120 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Oct 21st Information.ppt w/Attach: Oct 21st Information.ppt 10/20/2008 JX 0002-A Tr. 2

* Connotes an objection on hearsay grounds.Confidential 6 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0121 Intentionally Not Used N/A CX 0122 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Rough Draft Sigma Letter w/Attach: Sigma -Domestic Product Agreement 7292009.doc 7/28/2009 JX 0002-A 

CX 0123 -CX 0125 Intentionally Not Used N/A CX 0126 

E-mail from Leon McCullough to Rick Tatman, Thomas Walton and Mike Vore re: 2010 Programs 12/8/2009 JX 0002-A 

CX 0127 

E-mail from Mike Vore to Leon McCullough re: No Subject w/Attach: 2010-2012 HDS Corporate Rebate ProgramFinal.doc; 2010-2012 Hajoca Corporate Rebate ProgramFinal.doc; 2010-2012 Ferguson Corporate Rebate ProgramFinal.doc; WinWholeSale 2009 Corporate Rebate Estimate.xls; 2010-2012 WinWholeSale Corporate Rebate Program-Final-Plan A. doc 11/20/2009 JX 0002-A 

CX 0128 

E-mail from Leon McCullough to Harry Kirk re: ACT 2010 Program Feb 19 2010.doc w/Attach: 2010 ACT-McWane Corporate Rebate Program Updated Feb 19.docx; ACT 2010 Program Feb 19 2010.doc 2/19/2010 JX 0002-A 

CX 0129 

2010-2012 McWane Corporate Rebate Program for WinWholeSale 00/00/2010 JX 0002-A 

CX 0130 Intentionally Not Used N/A 

CX 0131 

E-mail from Michael Lowe to Leon McCullough, Allan Boscacci, Kurt Winter et al. re: Final Corporate Rebate Programs w/Attach: 2009 WinWholesale Corporate Rebate Program(2).doc; 2009 Ferguson Corporate Rebate Program(2).doc; 2009 Hajoca Corporate Rebate Program(2).doc; 2009 HDS Corporate Rebate Program(2).doc; 2009 MainLine Corporate Rebate Program(2).doc 12/12/2009 JX 0002-A 

CX 0132 

E-mail from Michael Lowe to Leon McCullough, Mike Vore and Kip Wixson re: Ferguson Corporate Rebate Program w/Attach: 2010 Ferguson Corporate Rebate ProgramFinal.doc 3/20/2010 JX 0002-A 

CX 0133 Intentionally Not Used N/A CX 0134 

OEM Distribution Agreement signed by Victor Pais for Sigma 09/00/2009 JX 0002-A 

CX 0135 -CX 0136 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 7 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0137 

E-mail from Rick Tatman to Leon McCullough to Thomas Walton re: Draft Announcement letter w/Attach: May Price Increase Draft C.doc; Sigma Increase.pdf; Current map 4 14 08.ppt; Map #4 Conservative.ppt; Map #5 Aggressive.ppt 5/5/2008 JX 0002-A Tr. 4

CX 0138 

Letter from Jerry Jansen to All Tyler Union Distribution Customers re: Pricing for Utility Fittings and Accessories 5/7/2008 JX 0002-A 

Tr. 234413640

CX 0139 

E-mail from Leon McCullough to Ruffner Page re: Initial DIFRA Output reports w/Attach: Initial DIFRA Output Reports 2006 2007 Apr 2008.pdf; Initial DIFRA Output Analysis.xls 6/18/2008 JX 0002-A Tr. 5

CX 0140 -CX 0150 Intentionally Not Used N/A CX 0151 

E-mail from Bree Holland to Rick Tatman, Gary Crawford, Dan McCutcheon et al. re: DIFRA June report w/Attach: Fittings Report June 2008.ppt 7/31/2008 JX 0002-A 

CX 0152 

E-mail from Bree Holland to Rick Tatman, Gary Crawford, Dan McCutcheon et al. re: DIFRA Report August 2008 w/Attach: Fittings Report August 2008.pdf 10/1/2008 JX 0002-A 

CX 0153 -CX 0154 Intentionally Not Used N/A CX 0155 

E-mail from Bree Holland to Rick Tatman, Gary Crawford, Dan McCutcheon et al. re: DIFRA reports w/Attach: DIFRA May-October 2008.pdf 11/8/2008 JX 0002-A 

CX 0156 

E-mail from Walter Florence to Jim McGivern re: EPA eases stimulus 'Buy American' rule 8/11/2009 JX 0002-A 

CX 0157 Intentionally Not Used N/A CX 0158 

E-mail from Thad G. Long to Rick Tatman, David Green, Tom Brakefield et al. re: DIFRA Bylaws w/Attach: Articles of incorporation of Ductile Iron Fittings Research Association.DOC, BHM-#15234103-v6-Ductile Fittings Research Association (DIFRA) - Bylaws.DOC 2/12/2008 JX 0002-A Tr. 5

CX 0159 

E-mail from Tom Brakefield to Thad G. Long, Victor Pais, Dan McCutcheon et al. re: [no subject] 5/5/2008 JX 0002-A 

CX 0160 

E-mail from Rick Tatman to Thad G. Long, Tom Brakefield, Victor Pais et al. re: DIFRA 5/5/2008 JX 0002-A Tr. 4

CX 0161 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 8 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0162 

E-mail from Victor Pais to Alex and Gopi Ramanathan re: My mtg with LMZ -- and a XINDIA/XXP Review w/Attach: XINDIA-XXP-MAJOR REVIEW-08408.doc, VP to Mr Fang_CONFIDENTIAL--Opportunities for Sigma and XXP in India and ME.msg, Victor to Ruffner_Response to your interest in ISO Fittings and Summary of Global opportunities....msg 8/5/2008 Tr. 3475:4-10 

CX 0163 

REMOVED -- DUPLICATE EXHIBIT TylerUnion (USA) 2010 Budget 12/11/2009 CX 0102 JX 0002-A 

CX 0164 

TylerUnion Presentation: General Manager's Meeting April 7th 2009 4/7/2008 JX 0002-A 

Tr. 446824686

CX 0165 

TylerUnion Presentation: Blended DIWF Published Multipliers Against New List LP-5091 4/10/2009 JX 0002-A 

CX 0166 -CX 0168 Intentionally Not Used N/A CX 0169 

DRAFT "MINUTES" McWane Sales Managers Conference Call Agenda 1-12-2010 1/12/2010 JX 0002-A 

CX 0170 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Updated Sigma Review Slide for Tuesday w/Attach: Sigma Review July 28th 2009 Rev B.ppt 7/27/2009 JX 0002-A 

CX 0171 

E-mail from Rick Tatman to Jerry Jansen re: Tyler/Union New List Price & Multipliers w/Attach: Multiplier Change Analysis.xlsm, _AVG certification_.txt 4/12/2009 JX 0002-A 

CX 0172 E-mail from Jerry Jansen to Dan Todd re: Facts 2/14/2010 JX 0002-A CX 0173 

E-mail from Jerry Jansen to Bruce Mcloughlin, Napoliand Tom Frank re: Tyler/Union 1/19/2010 JX 0002-A 

CX 0174 -CX 0175 Intentionally Not Used N/A CX 0176 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Sigma Price Increase Letter 5-19-08 w/Attach: Sigma Price Inc 5-19-08.pdf 4/25/2008 JX 0002-A Tr. 4

CX 0177 

E-mail from Rick Tatman to Thomas Walton re: New List and Multipliers w/Attach: Multiplier Change Analysis April 24 2009.xls 4/27/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 9 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0178 

E-mail from Ruffner Page to Leon McCullough re: Star following Tyler Maps 1/31/2008 

CX 0341 (TUFTC-0249236 -

TU-FTC0249237); CX 

2315 (TU-FTC0261470 - TUFTC-0261471) JX 0002-A Tr. 4

CX 0179 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Restarting Activity on a Fittings Trade association 2/7/2008 JX 0002-A 

CX 0180 -CX 0208 Intentionally Not Used N/A 

CX 0209 

E-mail from Victor Pais to Victor Pais re: Various BA options 4/23/2009 Tr. 2025:15-17 Tr. 2

CX 0210 Intentionally Not Used N/A CX 0211 

E-mail from Victor Pais to Siddharth Bhattacharji re: QRR Meeting with YBH 4/26/2009 Tr. 2027:23-25 Tr. 2

CX 0212 

E-mail from Victor Pais to M20 re: Urgent Final Customer Letter for Sigma Pricing plan w/Attach: Customer Letter -Pricing Review-Fittings-042709.pdf 4/27/2009 

Tr. 2013:25-2014:2 

Tr. 22014

CX 0213 

E-mail from Victor Pais to Michelle McNamee re: Thank you -- I will see you Friday morning @ 9 am 4/29/2009 Tr. 3475:4-10 

CX 0214 

E-mail from Victor Pais to Walter Florence, Fang Gang, Jim McGivern et al. re: A Comprehensive Market and Plan Review w/ Attach: BOD-UPDATE-MARKET REVIEW50409.doc, Victor Pais to Shanaghan_A formal appeal to EPA for waiver consideration.msg, CUSTOMER LETTER -PRICING REVIEW-FITTINGS-042709, PIR-709-50109.xls 5/4/2009 Tr. 1750:14-16 

Tr. 12162

CX 0215 -CX 0218 Intentionally Not Used N/A 

CX 0219 

E-mail from Mitchell Rona to liuguang re: Need for your help to work with XPF to get some foam pieces for trial casting in USA 5/21/2009 JX 0002-A Tr. 1

CX 0220 

E-mail from Victor Pais to Siddharth Bhattacharji re: Response to Bruce/Metafit... w/Attach: RESPONSE-toBRUCE-METALFIT-052209.doc 5/23/2009 Tr. 3475:4-10 

CX 0221 -CX 0224 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 10 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0225 

E-mail from Victor Pais to OEMS re: McWane's Agreement to See Sigma Domestic Product w/Attach: Sigma -Domestic Product Agreement 6.4.2009.pdf 6/5/2009 Tr. 1491:9-11 

Tr. 11760

CX 0226 -CX 0227 Intentionally Not Used N/A 

CX 0228 

E-mail from Mitchell Rona to Victor Pais re: Display of SDP samples @ AWWA and SDP/BA review 6/11/2009 JX 0002-A Tr. 1

CX 0229 -CX 0230 Intentionally Not Used N/A CX 0231 

E-mail from Siddharth Bhattacharji to Stuart Box re: development plans for SDP 6/16/2009 Tr. 1500:14-16 Tr. 1

CX 0232 -CX 0236 Intentionally Not Used N/A CX 0237 

E-mail from Mitchell Rona to Stuart Box and Gopi re: Updated with GR1 comments...excel spreadsheet to follow 7/3/2009 Tr. 1521:13-15 Tr. 1

CX 0238 

E-mail from Bob Leggett to Victor Pais re: AWWA Follow Up 7/8/2009 Tr. 3475:4-10 

CX 0239 Intentionally Not Used N/A CX 0240 

E-mail from Mitchell Rona to Stuart Box and Gopi Ramanathan re: Updated File w/Attach: SDPcompiledlistV2.xls 7/11/2009 Tr. 1535:4,6-7 Tr. 1

1764

CX 0241 

E-mail from Greg Fox to Victor Pais, Al Richardson, Siddharth Bhattacharji et al. re: ARRA compliance/SDP update 7/13/2009 Tr. 1767:23-25 Tr. 1

CX 0242 Intentionally Not Used N/A CX 0243 

E-mail from Mitchell Rona to Thomas Walton re: Sigma Proposal to McWane for Domestic Fittings w/Attach: McWane-Sigma-07-13-09.doc 7/14/2009 JX 0002-A Tr. 1

CX 0244 -CX 0245 Intentionally Not Used N/A CX 0246 

E-mail from Gopi Ramanathan to Siddharth Bhattacharji re: QRR Tooling cost for SDP w/Attach: Final Tooling - Sigma Board - Fittings - V2=SDP.xls 7/20/2009 JX 0002-A 

CX 0246-A 

E-mail from Gopi Ramanathan to Siddharth Bhattacharji re: QRR Tooling cost for SDP w/Attach: Final Tooling - Sigma Board - Fittings - V2=SDP.xls 7/20/2009 JX 0002-A 

CX 0247 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 11 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0248 

E-mail from Mitchell Rona to OEM5 re: My Discussion with Rick Tatman concerning our proposal to McWane w/Attach: McWane-Sigma-07-13-09-reply.doc 7/23/2009 Tr. 3475:4-10 

CX 0249 -CX 0256 Intentionally Not Used N/A CX 0257 

E-mail from Stuart Stuart Box to Mitchell Rona, Gopi Ramanathan, Siddharth Bhattacharji et al. re: MFT tooling cost for duplication of existing c153 tooling w/Attach: 09-08-04QuotationMetaliftMJTooling.xls 8/12/2009 

Tr. 1595:7,9-10 

Tr. 11595

CX 0258 

E-mail from Victor Pais to Mitchell Rona, OEM5 re: Sigma Plans for BA sourcing 8/18/2009 

Tr. 1539:25-1540:2 

Tr. 11692

CX 0259 -CX 0264 Intentionally Not Used N/A CX 0265 

E-mail from Victor Pais to OEMS re: Email from RT saying no to us selling USP thru our Master Distribution Agreement 8/30/2009 Tr. 3475:4-10 

CX 0266 

E-mail from Victor Pais to OEM5, Jim McGivern re: few comments on the terms and conditions from Tyler 9/1/2009 Tr. 3475:4-10 

CX 0267 -CX 0268 Intentionally Not Used N/A 

CX 0269 

E-mail from Mitchell Rona to Siddharth Bhattacharji, Victor Pais, Jim McGivern et al. re: update from SB1 9/7/2009 Tr. 1793:13-15 Tr. 1

CX 0270 Intentionally Not Used N/A 

CX 0271 

E-mail from Jim McGivern to Victor Pais, Siddharth Bhattacharji, Mitchell Rona et al. re: Master Distribution Agreement 9/9/2009 JX 0002-A Tr. 1

CX 0272 

E-mail from Joseph W. Spransy to James M. Proctor re: Sigma Corp.-Tyler Union agreement respecting domestic fittings w/Attach: McWane SIGMA_MDA-090809-sigma version.JWS.(3).doc 9/9/2009 Tr. 3475:4-10 

CX 0273 -CX 0277 Intentionally Not Used N/A 

CX 0278 

E-mail from Victor Pais to Rick Tatman re: Signed Master Distribution Agreement document 9/15/2009 Tr. 1806:12-14 Tr. 1

CX 0279 -CX 0281 Intentionally Not Used N/A CX 0282 

E-mail from Stuart Box to Mitchell Rona re: Final LF casting poured and cleaned at EF this week w/Attach: Sigma SDP Fittings LF trails.pptx 9/21/2009 JX 0002-A Tr. 1

* Connotes an objection on hearsay grounds.Confidential 12 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0283 -CX 0290 Intentionally Not Used N/A CX 0291 

E-mail from Victor Pais to SST-ALL re: IMPORTANT- A review of 09 + a POA for Planning for 2010... w/Attach: RST-2010-GUIDELINE-VP&LRV1-110509.xls 11/6/2009 Tr. 3475:4-10 

CX 0292 -CX 0293 Intentionally Not Used N/A CX 0294 Intentionally Not Used N/A CX 0295 -CX 0299 Intentionally Not Used N/A CX 0300 

E-mail from Mitchell Rona to Rick Tatman re: AWWA fittings 4" thru 64" w/Attach: pricing for tyler-122909.xls 12/28/2009 Tr. 3475:4-10 

CX 0301 -CX 0306 Intentionally Not Used N/A 

CX 0307 

E-mail from Victor Pais to OEM5 re: Our disc on our SDP (Sigma Dom Prodn) plan 5/20/2009 Tr. 1759:4-6 Tr. 1

CX 0308 

E-mail from Walter Florence to Victor Pais and Gopi Ramanathan re: Response on your Korea sourcing plan --with strategic look @ other options... 5/16/2009 JX 0002-A Tr. 1

CX 0309 -CX 0311 Intentionally Not Used N/A CX 0312 

Letter from Victor Pais to WF re: A likely acquisition opportunity...at the right time and the right fit 2/24/2009 Tr. 3475:4-10 

CX 0313 

Letter from Victor Pais to ARES Capital Corporation re: Advance Responses to Lender Questions 2/9/2009 JX 0002-A 

Tr. 12226

CX 0314 

E-mail from Al Richardson to Victor Pais re: I will be away on a quick visit to Birmingham Friday 5/1/09 4/30/2009 JX 0002-A 

CX 0315 -CX 0316 Intentionally Not Used N/A CX 0317 E-mail from Victor Pais to sina-GL re: TL mtg YBH on 5/14 5/13/2009 Tr. 3475:4-10 CX 0318 Intentionally Not Used N/A CX 0319 

E-mail from Victor Pais to M20 re: reviewing DIFRA-08 further... w/Attach: DIFRA-SIGMA-SMS-1208.xls 5/10/2009 JX 0002-A Tr. 1

CX 0320 -CX 0327 Intentionally Not Used N/A 

CX 0328 Intentionally Not Used N/A CX 0329 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: Star Review June 29th Rev A.ppt 7/2/2009 JX 0002-A Tr. 7

* Connotes an objection on hearsay grounds.Confidential 13 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0330 -CX 0335 Intentionally Not Used N/A CX 0336 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: HDS TylerUnion Program Rev 3 for presentation Dec 16th w/Attach: 2010-2012 HD Supply Corporate Rebate Program -Draft 2.doc, HDS 2010 TylerUnion DIWF Program Rev3.doc 12/10/2009 JX 0002-A 

CX 0337 

E-mail from Rick Tatman to Leon McCullough and Mike Vore re: 2009 HDS Corporate Rebate Program.doc w/Attach: 2009 HDS Corporate Rebate Program.doc 9/24/2008 JX 0002-A 

CX 0338 Intentionally Not Used N/A CX 0339 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: VMA data compared to Tyler/Union YTD fitting sales 3/10/2008 

CX 1567 

(McWane002071) JX 0002-A Tr. 4

CX 0340 

E-mail from Rick Tatman to Leon McCullough re: Jerry Webb to send out communication on Domestic fittings and Accessories. 9/8/2009 JX 0002-A Tr. 6

CX 0341 Intentionally Not Used N/A 

CX 0342 

E-mail from Tom Crawford to Dennis Charko and Leon McCullough re: ACT 2101 McWane Corporate RebateVore Revision w/Attach: 2010 ACT-McWane Corporate Rebate Program Mike Vore revision I.docx, Total Value of ACT Program Based on 2009 Business.xlsx 2/10/2010 JX 0002-A 

CX 0343 Intentionally Not Used N/A CX 0344 

E-mail from Rick Tatman to Leon McCullough re: ACT Program in .pdf File w/Attach: McWane ACT Rebate Program 2010_2_.pdf, 2010 McWane Corp Program ACT Rev 1 29 2010.doc 1/29/2010 JX 0002-A 

CX 0345 -CX 0346 Intentionally Not Used N/A CX 0347 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Price Increase DIWF w/Attach: Util Mult MapBLENDED LP509.pdg, Util Mult Map-Domestic LP5091 3-12.pdf, Util Mult Map-DOMESTIC LP5091 14-24.pdf, DIWF Non-Domestic Pricing Nov Report.XLS 12/13/2009 JX 0002-A Tr. 8

CX 0348 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 14 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0349 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: 2010 HDS & FEI Program w/Attach: FEI 2010 TylerUnion DIWF Program Nov 12th.doc, Amended TylerUnion DIWF 12th.doc, 2009 TylerUnion DIWF Program March 11th.doc 11/13/2009 JX 0002-A 

CX 0350 -CX 0353 Intentionally Not Used N/A 

CX 0354 

E-mail from Leon McCullough to Kent Brown, Rick Tatman, Thomas Walton et al. re: Clow Valve 24 Body Cover Wedge Quote Analysis (4).xls 8/5/2009 JX 0002-A 

CX 0355 Intentionally Not Used N/A 

CX 0356 

E-mail from Leon McCullough to Tom McDowell, Jim Wakefield and Kent Brown re: Clow Valve 24 Body Cover Wedge Quote Analysis (4).xls 8/4/2009 JX 0002-A 

CX 0357 

REMOVED -- DUPLICATE EXHIBIT E-mail from Ruffner Page to Leon McCullough re: Star & Domestic 6/16/2009 RX-431 JX 0002-A 

CX 0358 -CX 0361 Intentionally Not Used N/A 

CX 0362 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Nov DIFRA report w/Attach: DIFRA_2008_11.xls 12/17/2008 JX 0002-A 

CX 0363 Intentionally Not Used N/A 

CX 0364 

E-mail from Rick Tatman to Ruffner Page re: Tyler/Union July financials & FBE w/Attach: WWorksSP.xls 8/13/2008 JX 0002-A 

CX 0365 -CX 0366 Intentionally Not Used N/A CX 0367 

E-mail from Rick Tatman to Leon McCullough re: American Price Increase Letter May 2008.doc w/Attach: American Price Increase Letter May 2008.doc 5/13/2008 JX 0002-A Tr. 5

CX 0368 -CX 0374 Intentionally Not Used N/A CX 0375 

E-mail from Rick Tatman to Leon McCullough re: Draft Z...or it just feels like it. 1/8/2008 JX 0002-A Tr. 3

CX 0376 Intentionally Not Used N/A 

CX 0377 

E-mail from Rick Tatman to Mike Vore re: ACT w/Attach: ACT 2010 Program Nov 13 2009.pdf 2/17/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 15 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0378 -CX 0381 Intentionally Not Used N/A CX 0382 

E-mail from Mike Vore to Leon McCullough re: ACT Program in .pdf File w/Attach: 2010 McWane Corp Program ACT Rev 1 29 2010.doc 2/2/2010 JX 0002-A 

CX 0383 -CX 0385 Intentionally Not Used N/A 

CX 0386 

E-mail from Michael Lowe to Leon McCullough, Allan Allan Boscacci, Dennis Charko et al. re: Documents for Monday and Tuesday w/Attach: Agenda Ferguson & McWane Meeting January 2010.doc, Ferguson Rebates from Divisions - 12-31-09 FINAL.xls, 2010 WinWholesale Corporate Repate Program - Final.doc, From WinWholesale - McWane Purchases 2009.xls 1/15/2010 JX 0002-A 

CX 0387 -CX 0389 Intentionally Not Used N/A CX 0390 

E-mail from Michael Lowe to Dennis Charko re: w/Attach: 2010-2012 WinWholesale Corporate Rebate Program -Final - Plan A doc 1/4/2010 JX 0002-A 

CX 0391 -CX 0396 Intentionally Not Used N/A CX 0397 

E-mail from Rick Tatman to Leon McCullough re: HDS FEI Rebate Accrual.XLS w/Attach: HDS FEI Rebate Accrual.XLS 12/9/2009 JX 0002-A 

CX 0398 E-mail from Leon McCullough to Allan Boscacci re: Hajoca 11/23/2009 JX 0002-A 

CX 0399 Intentionally Not Used N/A 

CX 0400 

E-mail from Mike Vore to Leon McCullough and Rick Tatman re: McWane VALVE HYD FITTING.pdf - Adobe Readeer w/Attach: MCWANEVALVE HYD FITTING.pdf 4/10/2009 JX 0002-A 

CX 0401 Intentionally Not Used N/A CX 0402 

E-mail from Andy Payant to Dennis Charko, Leon McCullough, Allan Allan Boscacci et al. re: 2007 Rebates -Consolidated w/Attach: 2007 Division Rebates.xls 9/9/2008 JX 0002-A 

CX 0403 -CX 0406 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 16 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0407 

E-mail from Barry Patterson to Susan Welch, Ruffner Page, Rick Tatman et al. re: Daily Activity Summary II Report - Tyler Final May 2008 w/attach: newdlyincludesUnion.xls 6/2/2008 JX 0002-A 

CX 0408 -CX 0410 Intentionally Not Used N/A CX 0411 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Tonnage Spike Daily Activity Summary II Report - Combined May 8th w/Attach: newdlyincludesUnion.xls 5/9/2008 JX 0002-A 

CX 0412 -CX 0419 Intentionally Not Used N/A CX 0420 

E-mail from Barry Patterson to Tim Douty, Ruffner Page, Rick Tatman et al. re: Daily Combined TylerUnion April 7th w/Attach: newdlyincludesUnion.xls 4/8/2008 JX 0002-A 

CX 0421 

E-mail from Barry Patterson to Tim Douty, Ruffner Page, Rick Tatman et al. re: Daily Activity Summary II - Combined Tyler/Union April 4th w/Attach: newdlyincludesUnion.xls 4/7/2008 JX 0002-A 

CX 0422 Intentionally Not Used N/A CX 0423 

E-mail from Leon McCullough to Ruffner Page re: Star 300 Patterns 12/4/2009 JX 0002-A 

CX 0424 

E-mail from John Springer to Leon McCullough, Rick Tatman and Thomas Walton re: Waterworks Fittings Division +$493,000 Pre Reserve for Jan 2/4/2010 JX 0002-A 

CX 0425 Intentionally Not Used N/A CX 0426 

E-mail from Leon McCullough to Brenda Netten re: Price Increase DIWF w/Attach: Util Mult Map-BLENDED LP5091.pdf, Util Mult Map-DOMESTIC LP5091 3-12.pdf, Util Mult Map-DOMESTIC LP5091, 14-24.pdf, DIWF NonDomestic Pricing Nov Report.XLS 12/14/2009 JX 0002-A 

CX 0427 -CX 0430 Intentionally Not Used N/A 

CX 0431 

E-mail from Rick Tatman to Leon McCullough re: Star -Multiplier Change (Alabama) 5/13/2008 JX 0002-A Tr. 5

CX 0432 -CX 0436 Intentionally Not Used N/A CX 0437 General Notes [re: McWane & Star] 9/25/2009 JX 0002-A CX 0438 -CX 0439 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 17 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0440 Sigma Review August 20th 2009.ppt 8/20/2009 JX 0002-A CX 0441 Sigma Review July 28th 2009 Rev B.ppt 7/28/2009 JX 0002-A CX 0442 -CX 0444 Intentionally Not Used N/A CX 0445 

E-mail from Jerry Jansen to Rick Tatman re: Hajoca Sean Sean Kelly Response 11/19/2009 JX 0002-A 

CX 0446 -CX 0453 Intentionally Not Used N/A 

CX 0454 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: TylerUnion (USA) 2010 Budget w/Attach: TylerUnion 2010 Budget Narrative Final.pdf; TylerUnion 2010 Budget Cash Flow.pdf; TylerUnion 2010 Budget Income Statement.pdf 10/30/2009 JX 0002-A 

CX 0455 Intentionally Not Used N/A 

CX 0456 E-mail from Rick Tatman to Ruffner Page re: Sigma/Victor 5/18/2009 JX 0002-A CX 0457 -CX 0459 Intentionally Not Used N/A CX 0460 

E-mail from Kent Brown to Rick Tatman re: TylerUnion (USA) 2010 Budget 11/2/2009 JX 0002-A 

CX 0461 

E-mail from Mitchell Rona to Rick Tatman re: Draft for Discussion w/Attach: MCWANE-SIGMA MDA-080309.doc 8/4/2009 JX 0002-A 

CX 0462 

E-mail from Leon McCullough to Rick Tatman and American RD re: Ferguson service levels 5/19/2009 JX 0002-A 

CX 0463 

E-mail from Jerry Jansen to McCallister, Scott Frank, Mark Niewodowski et al. re: Large diameter Domestic Fittings 4/15/2009 JX 0002-A 

CX 0464 

E-mail from Leon McCullough to Rick Tatman re: List Price Change Final draft.doc 4/14/2009 JX 0002-A 

CX 0465 

E-mail to Leon McCullough and Thomas Walton re: Sigma Review July 27th 2009.ppt w/Attach: Sigma Review July 27th 2009.ppt 7/27/2009 JX 0002-A 

CX 0466 

E-mail from Rick Tatman to Leon McCullough re: Rick Tatman Call : Victor 8/25/2009 JX 0002-A 

CX 0467 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 18 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0468 

E-mail from Mike Vore to Leon McCullough, Dennis Charko, Allan Allan Boscacci et al. re: ACT 2101 McWane Corporate Rebate-Vore Revision w/Attach: 2010 ACTMcWane Corporate Rebate Program Mike Vore revision 1.docx; Total Value of ACT Program Based on 2009 Business.xlsx 2/2/2010 JX 0002-A 

CX 0469 Intentionally Not Used N/A 

CX 0470 

E-mail from Jerry Jansen re: Domestic Program w/Attach: 2010 TDG Domestic Ftg Program.doc 1/11/2010 JX 0002-A 

CX 0471 

E-mail from Darryl Case to Rick Tatman re: Farnsworth wholesale/Tyler 11/13/2009 JX 0002-A 

CX 0472 

E-mail from Greg Adams to Rick Tatman and Marla Drake re: UCANE Stimulus Update 10/24/2009 JX 0002-A 

CX 0473 

E-mail from Kent Brown to Leon McCullough re Lg. Diam. Ftgs. 8/5/2009 JX 0002-A 

CX 0474 

E-mail from Rick Tatman to Thomas Walton re: TylerUnion Monthly Report.doc w/Attach: TylerUnion Monthly Report.doc 3/7/2010 JX 0002-A 

CX 0475 

E-mail from Rick Tatman to Jennifer Heys, Jerry Jansen and Mike Snyder re: 2010 Stocking Distributor Rebate Program 2/19/2010 JX 0002-A 

CX 0476 

E-mail from Rick Tatman to Leon McCullough re: ACT 2010 Program Feb 19 2010.doc w/Attach: ACT 2010 Program Feb 19 2010.doc; 2010 ACT-McWane Corporate Rebate Program Updated Feb 19.docx 2/19/2010 JX 0002-A 

CX 0477 E-mail from Rick Tatman to Scott Frank re: Hajoca 12/15/2009 JX 0002-A CX 0478 -CX 0479 Intentionally Not Used N/A CX 0480 

E-mail from Rick Tatman to Randy Alexander, Debbie Vinson, Gwen Jackson et al. re: Rick Tatman Response FEI Eight Stocking locations 11/30/2009 JX 0002-A 

CX 0481 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Hajoca share 11/19/2009 JX 0002-A 

CX 0482 -CX 0483 Intentionally Not Used N/A CX 0484 

E-mail from Rick Tatman to Rick Tatman re: Jerry Burns -Notes 10/15/09 10/15/2009 JX 0002-A 

CX 0485 

E-mail from Rick Tatman to Leon McCullough, Thomas Walton and Kent Brown re: RST Response Lg. Diam. Ftgs. 8/10/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 19 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0486 

E-mail from Leon McCullough to Rick Tatman re: Our Responses to your 'Master Distribution Agreement' outline... w/Attach: MDA-RESPONSE-082809.doc 8/29/2009 JX 0002-A 

CX 0487 -CX 0488 Intentionally Not Used N/A CX 0489 2009-2010 Production & Inventory Planning Tyler/Union 9/13/2009 JX 0002-A CX 0490 Intentionally Not Used N/A CX 0491 McWane Corporate Rebate Program for Ferguson 00/00/2009 JX 0002-A 

CX 0492 McWane Corporate Rebate Program for Hajoca (USA) 00/00/2009 JX 0002-A CX 0493 McWane Corporate Rebate Program for HD Supply 00/00/2009 JX 0002-A CX 0494 McWane Corporate Rebate Program for Mainline 00/00/2009 JX 0002-A CX 0495 McWane Corporate Rebate Program for WinWholesale 00/00/2009 JX 0002-A CX 0496 Letter from Rick Tatman to Mitchell Rona re: ACIPCO 5/21/2009 JX 0002-A 

CX 0497 

Letter from Jerry Jansen to Customers re: New List Price for Utility Fittings and Accessories Effective July 2, 2007 w/Attach: DIWF List Price History 6/4/2007 JX 0002-A 

CX 0498 

E-mail from Debbie Vinson to Rick Tatman re: UNTIL PRICE CHANGES 02' TO PRESENTdoc.doc 9/18/2007 JX 0002-A 

CX 0499 Intentionally Not Used N/A CX 0500 E-mail from Bill Thees to Ruffner Page re: follow up 6/15/2010 JX 0002-A 

Ordered 8/17/2012 

CX 0501 Intentionally Not Used N/A CX 0502 Spreadsheet: Blended/Import $ 00/00/0000 JX 0002-A 

Ordered 8/17/2012 

CX 0503 Intentionally Not Used N/A CX 0504 Spreadsheet: 2010 MJ Ftg Programs 00/00/2010 JX 0002-A 

Ordered 8/17/2012 

CX 0505 Intentionally Not Used N/A CX 0506 

E-mail from Butch J. Doane to Bill Thees re: Tyler Union Announcement w/Attach: McWane Announcement Sept 22nd 2009.pdf 9/22/2009 JX 0002-A 

Tr. 33115

CX 0507 Intentionally Not Used N/A CX 0508 Handwritten notes: AWWA 6/21/2010 JX 0002-A CX 0509 

REMOVED -- DUPLICATE EXHIBIT McWane Corporate Rebate Program for Ferguson 00/00/2009 CX 0491 JX 0002-A 

Ordered 8/17/2012 

CX 0510 2010 McWane Corporate Rebate Program for Ferguson 00/00/2010 JX 0002-A 

Ordered 8/17/2012 

CX 0511 Handwritten notes: Sigma 6/4/2009 JX 0002-A CX 0512 -CX 0513 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 20 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0514 

E-mail from Thad G. Long to Rick Tatman, tb2@sigmaco.com, Dan McCutcheon et al. re: Draft of certain possible Agenda Items for DIFRA Meeting 3/27/2008 3/19/2008 JX 0002-A 

CX 0515 

E-mail from Thad G. Long to Rick Tatman, gcrawford@uspipe.com, tb2@sigmaco.com et al. re: Ductile Iron Fittings Research Association w/Attach: 1594_001.pdf 3/19/2008 

CX 1483 (DIFRA000253 - DIFRA000254) JX 0002-A 

CX 0516 

E-mail from Wood Herren to Thad G. Long, Tom Brakefield, tb2@sigmaco.com et al. re: No Subject w/Attach: DIFRA Input Output Format Rev 2.xls 5/28/2008 JX 0002-A 

CX 0517 -CX 0524 Intentionally Not Used N/A CX 0525 

E-mail from Matt Minamyer to Michael Berry, Ramon Prado, Bud Leider et al. re: Price Increase 5/6/2008 JX 0002-A 

Tr. 23283

CX 0526 

REMOVED -- DUPLICATE EXHIBIT Letter from Jerry Jansen to All Tyler/Union Distribution Customers re: Pricing for Utility Fittings and Accessories 5/7/2008 CX 0138 JX 0002-A 

CX 0527 

E-mail from Ramon Prado to Chuck Carrigan, Clay Galloway and Michael Berry re: Fitting Mult. Changes on Hold w/Attach: Memo re: Pricing for Utility Fittings & Accessories 5/12/2008 JX 0002-A Tr. 3

CX 0528 

E-mail from Vinod Mantri to Ramesh Bhutada, Dan McCutcheon, Navin Bhargava et al. re: Sales & Margin Report - April 2008 w/Attach: Sales & Margin Report - Apr 2008.xls 5/2/2008 JX 0002-A 

Ordered 8/31/2012 Tr. 2

CX 0529 Intentionally Not Used N/A 

CX 0530 

E-mail from Navin Bhargava to Dan McCutcheon re: please call me on this 5/19/2008 JX 0002-A Tr. 2

CX 0531 Intentionally Not Used N/A CX 0532 

E-mail from Dan McCutcheon to Dan McCutcheon re: fittings market 2006 w/Attach: Book1 (2).xls 11/3/2006 JX 0002-A Tr. 2

CX 0533 Intentionally Not Used N/A CX 0534 

E-mail from Dan McCutcheon to Ramesh Bhutada re: Tyler South Plant Announcement 10/17/2008 Tr. 2455:11-13 

Tr. 22455

CX 0535 -CX 0540 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 21 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0541 

E-mail from Ramesh Bhutada to Dan McCutcheon re: Market share calculation w/Attach: Market share projections (1).xls 5/30/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0542 

E-mail from Sachin Jakhotia to Navin Bhargava, Gautam Basuand Narendra Zamwar re: Emailing: Project X-2009 Meeting Minutes w/Attach: Project X-2009 Meeting Minutes.doc 5/6/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0543 -CX 0544 Intentionally Not Used N/A 

CX 0545 

E-mail from Kirthi Jain to Ramesh Bhutada and Rishi Bhutada re: Company A- Proforma EBITDA statement w/Attach: Sigma Analysis 24th Jul 2009.xls 8/3/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0546 

E-mail from Kirthi Jain to Ramesh Bhutada, Dan McCutcheon, Rishi Bhutada et al. re: Presentation to US Bank-draft w/Attach: US Bank visit Jun 1st 2009.ppt, Market share projections.xls 5/31/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0547 Intentionally Not Used N/A CX 0548 

E-mail from Sean Kelly to Roy Pitts re: Emailing: Tyler Union.pdf w/Attach: Tyler Union.pdf 9/27/2010 JX 0002-A 

CX 0549 Intentionally Not Used N/A CX 0550 

E-mail from Victor Pais to Jerry Webb, Larry Rybacki and Siddharth Bhattacharji re: Victor to Jerry: Thank you for your support with EPA and BA issue w/Attach: Victor Pais to Peter Shanaghan: A formal appeal to EPA for waiver consideration 4/27/2009 JX 0002-A 

CX 0551 

E-mail from Glenn Fielding to Jerry Webb and Darrin Anderson re: Support of Domestic Specs 5/12/2009 JX 0002-A 

CX 0552 

Memo from Jerry Webb to District Managers, Branch Managers & Operations Managers re: American Made Fittings 9/23/2009 JX 0002-A Tr. 2

CX 0553 -CX 0554 Intentionally Not Used N/A CX 0555 

E-mail from Jason O'Nan to Vince Roach, Jeremy Blackhurst and Dan McCutcheon re: Tyler Northeast Letter dated 7/30/08 w/Attach: 33.PDF 8/5/2008 JX 0002-A 

CX 0556 

E-mail from Sachin Jakhotia to Dan McCutcheon re: ARRA -

Development Plan w/Attach: ARRA - Development Plan.xls 6/10/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 22 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0557 

E-mail from Dan McCutcheon to Pam Garey and Roger Johnson re: Buy USA - Development Plan update 6/12 w/Attach: ARRA - Development Plan.xls 6/12/2009 JX 0002-A 

CX 0558 Intentionally Not Used N/A CX 0559 

E-mail from Ramon Prado to Dan McCutcheon re: Tyler Letter w/Attach: ScanSeptember-22-2009.pdf 9/22/2009 JX 0002-A Tr. 2

CX 0560 

E-mail from Pam Garey to Kirthi Jain re: Domestic quote log w/Attach: Domestic Quote Log.xls 3/29/2010 JX 0002-A 

CX 0561 Intentionally Not Used N/A CX 0562 -CX 0564 Intentionally Not Used N/A CX 0565 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Sigma Proposal - Initial Feedback w/Attach: Sigma - Domestic Product Agreement 7 29 2009.pdf 7/30/2009 JX 0002-A 

CX 0566 

E-mail from Thomas Walton to Leon McCullough re: Sigma Proposal to McWane for Domestic Fittings w/Attach: McWane-Sigma-07-13-09.doc 7/15/2009 JX 0002-A 

CX 0567 Intentionally Not Used N/A CX 0568 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Material for Sigma discussion 9:00am Monday w/Attach: Sigma Review July 27th 2009.ppt 7/26/2009 JX 0002-A 

Tr. 755595561

CX 0569 

E-mail from Rick Tatman to Thomas Walton re: List Price Change Final draft.doc w/Attach: List Price Change Final draft.doc 4/13/2009 JX 0002-A Tr. 5

CX 0570 Intentionally Not Used N/A CX 0571 

E-mail from Thomas Walton to Leon McCullough re: Material for Sigma discussion w/Attach: McWane-Sigma-07-

13-09.doc; Proforma Sigma Offer July 2009.xls 7/21/2009 JX 0002-A 

CX 0572 

E-mail from Mark Willett to Jerry Jansen re: Impact of Sigma w/Attach: SALEX.XLS 10/14/2009 JX 0002-A 

CX 0573 -CX 0574 Intentionally Not Used N/A 

CX 0575 

E-mail from Craig Schapiro to Scott Frank re: Sigma ANNOUNCEMENT w/Attach: CUSTOMER LETTER -PRICING REVIEW -FITTINGS-042709.pdf 4/27/2009 JX 0002-A 

CX 0576 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 23 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0577 E-mail from Jerry Jansen to Rick Tatman re: Northwest DC w/ Attach: DC Seattle or Portland.doc 11/11/2009 JX 0002-A 

CX 0578 

E-mail from Rick Tatman to Thomas Walton re: Proforma Sigma Offer July 25th 2009.xls w/Attach: Proforma Sigma Offer July 25th 2009.xls 7/27/2009 JX 0002-A 

CX 0579 -CX 0582 Intentionally Not Used N/A CX 0583 

E-mail from Pete Lisowski to Dan McCutcheon and Bud Leider re: Week Ending 3-14-10 3/15/2010 JX 0002-A 

CX 0584 Intentionally Not Used N/A CX 0585 

E-mail from Todd Karren to Dan McCutcheon and Michael Berry re: Star 3/15/2010 Tr. 2613:12-14 

Tr. 24411

CX 0586 -CX 0590 Intentionally Not Used N/A CX 0591 

REMOVED -- DUPLICATE EXHIBIT E-mail from Navin Bhargava to Narendra Zamwar, Ravi Pollardand Manoj Rathi re: Status Update on Domestic Project 1/29/2010 RX-256 JX 0002-A 

CX 0592 

E-mail from Bhargava to Rathi re: Star Purchase of US Domestic 1/28/2010 Tr. 2908:11-13 Tr. 2

CX 0593 

E-mail from Navin Bhargava to Dan McCutcheon and Susan Schepps re: 12-14-09 US Pipe meeting 12/17/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0594 

E-mail from Navin Bhargava to Dan McCutcheon re: Tyler Patterns Development - China 11/28/2009 JX 0002-A 

CX 0595 

E-mail from Dan McCutcheon to Navin Bhargava re: US PIPH 11/17/2009 JX 0002-A 

CX 0596 -CX 0601 Intentionally Not Used N/A CX 0602 Meeting Minutes for Project Name: X-2009 5/8/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0603 Intentionally Not Used N/A CX 0604 

E-mail from Navin Bhargava to Narendra Zamwar re: Emailing: www.backmanfoundry.com - for domestic MJ foundry 3/4/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0605 -CX 0606 Intentionally Not Used N/A 

CX 0607 

REMOVED -- DUPLICATE EXHIBIT Letter from Larry Rybacki to Valued Sigma Customers re: List Price Increase January 2, 2008 / Multiplier Increase November 5, 2007 10/23/2007 RX-015 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 24 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0608 -CX 0610 Intentionally Not Used N/A CX 0611 

Letter from Rick Tatman to Mitchell Rona re: McWane terms to Sigma to become a Master Distributor 8/24/2009 JX 0002-A 

CX 0612 Intentionally Not Used N/A CX 0613 

Letter from Rick Tatman to Mitchell Rona re: McWane's terms for Alan Master Distributor for Sigma to service ACIPCO account 7/27/2009 JX 0002-A 

CX 0614 Intentionally Not Used N/A CX 0615 

TylerUnion 2008 Budget Waterworks Division Tyler Pipe South Plant 2/8/2010 JX 0002-A 

CX 0616 TylerUnion 2010 Budget Waterworks Division 12/00/2009 JX 0002-A 

CX 0617 Composition Book 3/30/09 - 11/30/09 

03/30/2009 -

11/30/2009 JX 0002-A 

CX 0618 

TylerUnion Presentation: Star announcement of domestic product line. Analysis of response, SWOT Analysis, Risk analysis. 6/29/2009 JX 0002-A 

CX 0619 Intentionally Not Used N/A 

CX 0620 TylerUnion Presentation: Anniston December 2009. 12/00/2009 JX 0002-A CX 0621 Intentionally Not Used N/A CX 0622 TylerUnion Presentation: Sales Meeting January 19, 2009. 1/19/2009 JX 0002-A 

Tr. 8412656825768

CX 0623 

TylerUnion Presentation: General Managers Meeting Apr. 7, 2009. 4/7/2009 JX 0002-A 

CX 0624 

TylerUnion Presentation: Leon McCullough Lake House Sept 29 2009.ppt 9/29/2009 JX 0002-A 

CX 0625 Intentionally Not Used N/A CX 0626 Tyler Union Presentation: TDG Session Sept 15th 2009 9/15/2009 JX 0002-A CX 0627 DIWF 1Q Price Review 01 06 08.ppt 1/6/2008 JX 0002-A 

Tr. 4373:426:3155

CX 0628 -CX 0630 Intentionally Not Used N/A CX 0631 Spreadsheet: Performance Sigma Offer July 25th 2009 9/25/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 25 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0632 

Price List: ACIPCO Mechanical Joint & Flange Fittings Price List 11/1/2009 JX 0002-A 

CX 0633 Spreadsheet: 2009 Domestic Only Specifications 00/00/2009 JX 0002-A 

CX 0634 E-mail from Jerry Jansen to Rick Tatman re: Increase letter 1/5/2008 JX 0002-A 

CX 0635 

REMOVED -- DUPLICATE EXHIBIT E-mail from Sean Kelly to Jerry Jansen re: McWane Domestic Fittings 11/16/2009 RX-233 JX 0002-A 

CX 0636 -CX 0639 Intentionally Not Used N/A 

CX 0640 

REMOVED -- DUPLICATE EXHIBIT E-mail from Rick Tatman to Thomas Walton, Leon McCulloughand Jerry Jansen re: Hajoca Sean Kelly Response 11/16/2009 RX-436 JX 0002-A 

CX 0641 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: WinWholesale to Support McWane brands for their domestic DIWF needs - Hajoca still open w/Attach: McWane Announcement Sept 22nd 2009.pdf 11/2/2009 JX 0002-A 

CX 0642 -CX 0643 Intentionally Not Used N/A CX 0644 

E-mail from Rick Tatman to Leon McCullough re: Victor's Call 10/7/2009 JX 0002-A 

CX 0645 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Summary Notes from Sigma LOI discussion with Mitchell Mitchell Rona 6pm Monday 8/24/2009 JX 0002-A 

CX 0646 

E-mail from Rick Tatman to Thomas Walton re: McWane Corporate Program revision w/Attach: 2009 Ferguson Corporate Rebate Program.doc, 2009 Ferguson Corporate Rebate Program (2).doc 1/8/2009 JX 0002-A 

CX 0647 -CX 0648 Intentionally Not Used N/A 

CX 0649 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Competitive Inputs from AWWA Show 6/17/2009 JX 0002-A 

CX 0650 Intentionally Not Used N/A CX 0651 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Sigma Response - Tyler/Union New List and Multipliers 4/27/2009 JX 0002-A Tr. 5

* Connotes an objection on hearsay grounds.Confidential 26 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0652 -CX 0655 Intentionally Not Used N/A CX 0656 

E-mail from Rick Tatman to Thomas Walton, Leon McCulloughand Jerry Jansen re: December DIFRA Report w/Attach: DIFRA_2008_12.xls 1/21/2009 JX 0002-A Tr. 5

CX 0657 Intentionally Not Used N/A CX 0658 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: Groeniger Update 1/25/2010 JX 0002-A 

CX 0659 Intentionally Not Used N/A CX 0660 

REMOVED -- DUPLICATE EXHIBIT E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Hajoca on hold 11/23/2009 CX 1800 JX 0002-A 

CX 0661 

E-mail from Mark Willett to Kent Brown re: Proposal w/Attach: Inventory and Scheduling Alan Master Plan.docx 2/9/2010 JX 0002-A 

CX 0662 

E-mail from Jerry Jansen to Rick Tatman and Kent Brown re: Groeniger Domestic Purchasing Violation w/Attach: Domestic Purchasing Violation, IMG00269.jpg, IMGP1411.JPG, IMGP1413.JPG, IMGP1414.JPG, IMGP1415.JPG, IMGP1417.JPG, IMGP1422.JPG, Shipping info 12/28/2009 JX 0002-A 

CX 0663 E-mail from Jerry Jansen to Kent Brown re: out of office 3/28/2010 JX 0002-A 

CX 0664 E-mail from Thomas Walton to Kent Brown re: WW Fittings 12/13/2009 JX 0002-A CX 0665 

E-mail from Rick Tatman to Kent Brown re: Northwest DC w/Attach: DC Seattle or Portland.doc 11/11/2009 JX 0002-A 

CX 0666 -CX 0670 Intentionally Not Used N/A 

CX 0671 

Spreadsheet: Tyler Pipe Company Daily Activity Summary II 06/00/2009 JX 0002-A 

CX 0672 -CX 0679 Intentionally Not Used N/A 

CX 0680 

REMOVED -- DUPLICATE EXHIBIT E-mail from Scott Frank to Rick Tatman re: Hajoca 12/15/2009 CX 1802 JX 0002-A 

CX 0681 

E-mail from Bruce Duncan to Jeff Otterstedt and Scott Frank re: Announcement Letter Draft 2 McWane Only.doc w/Attach: Announcement Letter Draft 2 McWane Only.doc 9/18/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 27 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0682 

E-mail from Brenda Netten to Jerry Jansen, Terry Christjohn, Mark Niewodowski et al. re: Distributor Preference Report 2009 Chad's Form.Goodxls.xls w/Attach: Distributor Preference Report 2009 Chad's Form.Goodxls.xls 4/5/2010 JX 0002-A 

CX 0683 Intentionally Not Used N/A CX 0684 

E-mail from Rick Tatman to Scott Frank and Jeff Otterstedt re: ACIPCO 30" - 48" MJ and FLG Fitting Prices w/Attach: American's Price List 30-48 Inch.pdf 11/19/2009 JX 0002-A 

CX 0685 -CX 0687 Intentionally Not Used N/A 

CX 0688 

E-mail from murphydip@aol.com to Scott Frank re: Sigma deal 10/9/2009 JX 0002-A 

CX 0689 

E-mail from Jerry Jansen to Scott Frank, Vince Napoli, David Henrie et al. re: HD Wichita 10/5/2009 JX 0002-A 

CX 0690 

E-mail from Jerry Jansen to Scott Frank and Vince Napoli re: HD Wichita 10/5/2009 JX 0002-A 

CX 0691 -CX 0692 Intentionally Not Used N/A CX 0693 

E-mail from Jennifer Heys to Jerry Jansen, re: Order Hold Hajoca Domestic Fittings & Accessories 11/23/2009 JX 0002-A 

CX 0694 

E-mail from Roger Dunning to Kent Brown, Mark Vess, Marla Drake et al. re: Copy of DOMESTIC FITTING ACTIVITY 30 AND ABOVErevised.xls w/Attach: Copy of DOMESTIC FITTING ACTIVITY 30 AND ABOVErevised.xls 11/11/2009 JX 0002-A 

CX 0695 

E-mail from Marla Drake to Greg Adams and Ryan Anderson re: Announcement Letter and Q&A document for today's Conference Call Tuesday, 9-22, @ 10:30 am CST w/Attach: McWane Announcement Sept 22nd 2009.pdf, Sept 22nd Announcement Q&A.doc 9/22/2009 JX 0002-A 

CX 0696 -CX 0697 Intentionally Not Used N/A CX 0698 

E-mail Patrick Gleeson to Jerry Jansen and Douglas Allen re: DomainBlackList - FW: DomainBlackList - Star - New Multipliers w/Attach: _AVG certification_.txt 6/25/2009 JX 0002-A 

CX 0699 

E-mail Roger Dunning to Christopher Bruntz re: Buy America - ARRA projects w/Attach: JAN COC REV.pdf, 23UC153Compact_002.pdf, 22UC110FullBody_001.pdf, 28FlangedC110_001.pdf, 26UUni 3/23/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 28 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0700 

E-mail from Jerry Jansen to Richard Gardner re: Domestic Program w/Attach: 2010 TDG Domestic Ftg Program.doc 1/12/2010 JX 0002-A 

Tr. 55707

CX 0701 Intentionally Not Used N/A CX 0702 

E-mail from Jerry Jansen to Jennifer Heys re: Order Hold Hajoca Domestic Fittings & Accessories 11/24/2009 JX 0002-A 

CX 0703 -CX 0704 Intentionally Not Used N/A 

CX 0705 E-mail from Bruce Curtis to Jerry Jansen re: Sigma / Tyler 9/3/2009 JX 0002-A CX 0706 

E-mail from Jerry Jansen to Rick Tatman re: Ruffner Requests Sigma/Star 2/25/2009 JX 0002-A 

CX 0707 Intentionally Not Used N/A CX 0708 

E-mail from Jerry Jansen to Bo Camposano re: Survey w/Attach: Cust Survey 2009 (date).xls 1/10/2010 JX 0002-A 

CX 0709 Intentionally Not Used N/A CX 0710 

E-mail from Jennifer Heys to Nikki Dolick, Justin Connorand Ruffner Page re: Conference Call w/Attach: Call.doc 8/29/2009 JX 0002-A 

Tr. 63986

CX 0711 

E-mail from Jerry Jansen to Rick Tatman re: Market Multipliers April 2009.ppt 4/9/2009 JX 0002-A 

CX 0712 

E-mail from Patrick Gleeson to Jerry Jansen re: Domestic Fittings 11/19/2009 JX 0002-A 

CX 0713 Intentionally Not Used N/A 

CX 0714 

E-mail from Jerry Jansen to Aaron Huttel, Dan Todd, Glenn Miller et al. re: 2010 Stocking Distributor Rebate Program w/Attach: 2010 Stocking Distributor Rebate Program.doc 2/24/2010 JX 0002-A 

CX 0715 Intentionally Not Used N/A CX 0716 

E-mail from Jerry Jansen to Justin Connor re: ARRA projects for ME 2/16/2010 JX 0002-A 

CX 0717 Intentionally Not Used N/A CX 0718 

E-mail from Jerry Jansen to Mark Niewodowski, re: Electrosteel 7/22/2009 JX 0002-A 

CX 0719 

E-mail from Jerry Jansen to Rick Tatman and Mike Snyder re: Star Domestic Rebate 3/30/2010 JX 0002-A 

CX 0720 

E-mail from Nikki Dolick to Jerry Jansen re: Powerpoint Presentation w/Attach: 2010 Sales Meeting Presentation.ppt 1/29/2010 JX 0002-A 

CX 0721 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 29 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0722 E-mail from Larry Ruffin to Jerry Jansen re: Tyler Reports 1/19/2010 JX 0002-A CX 0723 

E-mail from Jerry Jansen to Douglas Allen re: Consolidated Supply 5/19/2009 JX 0002-A 

CX 0724 

E-mail from Leon McCullough to Rick Tatman and Thomas Walton re: Draft 2010 Hajoca Corporate Rebate Program.doc 11/18/2009 JX 0002-A 

CX 0725 

E-mail from Leon McCullough to Jerry Webb re: Domestic Only 9/2/2009 JX 0002-A 

CX 0726 Intentionally Not Used N/A 

CX 0727 

E-mail from Ruffner Page to Leon McCullough re: BCH ownership - patterns 5/23/2009 JX 0002-A 

CX 0728 

E-mail from Victor Pais to Leon McCullough re: Thank you...see you Tuesday...Have a great weekend! 4/24/2009 JX 0002-A 

CX 0729 

E-mail from Rick Tatman to Charlie Nowlin re: Pro forma Sigma Offer July 2009.xls w/Attach: Performa Sigma Offer July 2009.xls 7/21/2009 JX 0002-A 

Tr. 755535563

CX 0730 Intentionally Not Used N/A CX 0731 

E-mail from Susan Schepps to Dan McCutcheon re: McWane Domestic Fittings 11/17/2009 JX 0002-A 

CX 0732 -CX 0735 Intentionally Not Used N/A 

CX 0736 Spreadsheet: Housing Starts Trend 00/00/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0737 -CX 0738 Intentionally Not Used N/A CX 0739 Spreadsheet: Market Share Analysis 5/29/2008 JX 0002-A 

Ordered 8/31/2012 

CX 0740 Star Presentation: State of the Company 1/10/2010 JX 0002-A 

CX 0741 

REMOVED -- DUPLICATE EXHIBIT E-mail from Dan McCutcheon to Navin Bhargava re: Sigma - Tyler 9/23/2008 RX-098 JX 0002-A 

CX 0742 Intentionally Not Used N/A CX 0743 Star Spreadsheet: Domestic Fittings (10-6-09) 10/6/2009 JX 0002-A 

CX 0744 -CX 0745 Intentionally Not Used N/A CX 0746 

E-mail from Pam Garey to Donna Beyer, Sean Kelly Walker, Kerrie IIuisel et al. re: Pricing Strategy Changes 11/25/2008 JX 0002-A Tr. 4

* Connotes an objection on hearsay grounds.Confidential 30 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0747 -CX 0749 Intentionally Not Used N/A CX 0750 

E-mail from Dan McCutcheon to Ramon Prado re: Proof of Sigma Pricing in Florida As of Today 11/20/2008 JX 0002-A 

CX 0751 Intentionally Not Used N/A 

CX 0752 

E-mail from Matt Minamyer to Bud Leider, Neil McGillivray et al. re: McWane/Tyler Multipliers and our Plan 1/22/2008 JX 0002-A 

Tr. 23242

CX 0753 2010-2012 McWane Corporate Rebate Program for Hajoca 00/00/2010 JX 0002-A 

CX 0754 -CX 0756 Intentionally Not Used N/A 

CX 0757 

E-mail from Roy Pitts to Rick Fantham and Sean Kelly re: McWane Pipe 1/6/2010 JX 0002-A 

CX 0758 E-mail from Sean Kelly to Roy Pitts re: MIXHAJOC.XLS 10/9/2009 JX 0002-A 

CX 0759 -CX 0772 Intentionally Not Used N/A CX 0773 

REMOVED -- DUPLICATE EXHIBIT E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Managing Rebates 6/2/2008 RX-066 JX 0002-A 

Ordered 8/31/2012 

CX 0774 Intentionally Not Used N/A CX 0775 

E-mail from Dan McCutcheon to Ravi Pallod re: ARRA -Development Plan.xls w/Attach: ARRA - Development Plan.xls 6/11/2009 JX 0002-A 

CX 0776 

E-mail from Dan McCutcheon to Dan McCutcheon re: Star -Domestic Development Plan 11/20/2009 to MainLine 11/23/2009 JX 0002-A 

CX 0777 Intentionally Not Used N/A CX 0778 Regarding TylerUnion's Sept 22 Announcement 9/22/2009 JX 0002-A CX 0779 Spreadsheet: Untitled (project list) 00/00/0000 JX 0002-A CX 0780 Intentionally Not Used N/A CX 0781 

E-mail from Dan McCutcheon to Dan McCutcheon re: Star -Domestic Development Plan 11/20/2009 11/20/2009 JX 0002-A 

CX 0782 

E-mail from Ramon Prado to Dan McCutcheon, Utility Division Managers re: please send me TylerUnion's domestic multiplier letters that you can get that were out before the 5/12 announcement w/ Attach: TylerIncrease071408.pdf 10/23/2009 JX 0002-A 

CX 0783 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 31 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0784 Handwritten Notes: Basic Information 9/28/2009 JX 0002-A 

Ordered 8/31/2012 

CX 0785 Intentionally Not Used N/A CX 0786 

Letter from Larry Rybacki to Sigma Customers in the Midwestern region of: OH, IN, IL, MI, WI, MN, SD, ND, WV, KY re: Price Increase effective January 22, 2010 12/30/2009 JX 0002-A 

CX 0787 -CX 0793 Intentionally Not Used N/A 

CX 0794 Domestic Production DIWF Fittings-Start Up Investment 3/5/2010 JX 0002-A 

Ordered 8/31/2012 

CX 0795 -CX 0800 Intentionally Not Used N/A CX 0801 E-mail from Eddie Gibbs re: Tyler Union 9/24/2009 JX 0002-A 

CX 0802 Intentionally Not Used N/A CX 0803 

Letter from Larry Rybacki and Victor Pais to All Sigma Customers Re: 'MDM' A practical option to meet your Domestic requirements of AWWA fittings 9/22/2009 

CX 0008 (no 

bate number) 

JX 0002-A; Tr. 1821:9-11 Tr.1

CX 0804 -CX 0810 Intentionally Not Used N/A CX 0811 

E-mail from Shaun Smith to Matt Minamyer and Dan McCutcheon re: TDG 1/16/2008 JX 0002-A 

CX 0812 -CX 0813 Intentionally Not Used N/A CX 0814 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Pricing in the market 8/25/2008 JX 0002-A 

Tr. 23262

CX 0815 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Special Pricing 2/23/2008 JX 0002-A Tr. 2

CX 0816 

E-mail from Star Pipe Products to Outside Sales re: Star -Multiplier Change (Arizona) 5/7/2008 JX 0002-A 

CX 0817 

E-mail from Star Pipe Products to Outside Sales re: Star -Multiplier Change (Arkansas) 5/7/2008 JX 0002-A 

CX 0818 

E-mail from Star Pipe Products to Outside Sales re: Star -Multiplier Change (Colorado) 5/7/2008 JX 0002-A 

CX 0819 

E-mail from Star Pipe Products to Outside Sales re: Star -Multiplier Change (Georgia) 5/7/2008 JX 0002-A Tr. 3

CX 0820 

E-mail from Star Pipe Products to Outside Sales re: Star -Multiplier Change (Iowa) 5/7/2008 JX 0002-A 

CX 0821 

E-mail from Star Pipe Products to Outside Sales re: Star -Multiplier Change (Kansas) 5/7/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 32 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0822 E-mail from Star Pipe Products to Outside Sales re: Star - Multiplier Change (Louisiana) 5/7/2008 JX 0002-A CX 0823 

E-mail from Star Pipe Products to Outside Sales re: Star -Multiplier Change (Michigan) 5/7/2008 JX 0002-A 

CX 0824 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Fitting Mult. Changes on Hold 5/12/2008 JX 0002-A 

CX 0825 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: END OF MONTH SPECIAL 8/26/2008 JX 0002-A 

CX 0826 

E-mail from Matt Minamyer to Michael Berry, Shaun Smith, Pete Lisowski et al. re: No subject 9/18/2008 JX 0002-A 

CX 0827 

E-mail from Matt Minamyer to Susan Schepps, Bud Leider, Michael Berry et al re: 30" and up fittings 10/22/2008 JX 0002-A 

CX 0828 

E-mail from Matt Minamyer to Susan Schepps, Bud Leider, Michael Berry et al. re: 30" and up fittings 11/4/2008 JX 0002-A 

CX 0829 

E-mail from Dan McCutcheon to Ramon Prado re: Proof of Sigma Pricing in Florida As of Today 11/25/2008 JX 0002-A 

CX 0830 E-mail from Matt Minamyer to Pam Garey re: Pinks 11/25/2008 JX 0002-A 

CX 0831 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray, et al. re: Pricing Strategy Changes 11/25/2008 JX 0002-A Tr. 3

CX 0832 Intentionally Not Used N/A CX 0833 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Tyler Nov''07 Utility Price Increase letter w/Attach: Outlook.jpg 10/10/2007 JX 0002-A 

CX 0834 -CX 0835 Intentionally Not Used N/A 

CX 0836 

E-mail from Niki Sparks to Barry Foster, Bill Paynter, Blake Wegener et al. re: Multiplier Increase Effective November 5, 2007 10/18/2007 JX 0002-A 

CX 0837 

E-mail from Shaun Smith to Matt Minamyer re: National Multiplier increase 10/12/2007 JX 0002-A 

CX 0838 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 10/05/07 10/16/2007 JX 0002-A 

CX 0839 

E-mail from Matt Minamyer to Susan Schepps, Bud Leider, Michael Berry et al. re: Multiplier Increase 10/17/2007 JX 0002-A 

CX 0840 

E-mail from Ramon Prado to Dan McCutcheon, Bud Leider, Matt Minamyer et al. re: Sigma Price Increase Letter w/Attach: 9002.pdf 10/26/2007 JX 0002-A Tr. 2

* Connotes an objection on hearsay grounds.Confidential 33 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0841 

E-mail from Matt Minamyer to Shaun Smith, Ramon Prado, Bud Leider et al. re: Multiplier Price Changes w/Attach: Multiplier Report 10-17-2007.xls 10/29/2007 JX 0002-A 

CX 0842 

E-mail from Matt Minamyer to Ramon Prado, Bud Leider, Shaun Smith et al. re: Multiplier Increase on Accessories 11/3/2007 JX 0002-A 

CX 0843 Intentionally Not Used N/A CX 0844 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Special Project Pricing Report -Oct 07 w/Attach: Special Project Pricing Report - Oct 07.xls 11/28/2007 JX 0002-A 

CX 0845 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: DM Meeting Minutes and Action Assignments. 12/10/2007 JX 0002-A 

CX 0846 Intentionally Not Used N/A CX 0847 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Project Pricing Report w/Attach: Project Pricing Report 1.22.08.xls 1/23/2008 JX 0002-A Tr. 3

CX 0848 

E-mail from Michael Berry to Ramon Prado and Matt Minamyer re: Sigma's FL Letter w/Attach: Sigmaincrease2_18_08.pdf 2/7/2008 JX 0002-A Tr. 3

CX 0849 E-mail from Shaun Smith to Matt Minamyer re: A.R.2.8.08 2/12/2008 JX 0002-A CX 0850 Intentionally Not Used N/A CX 0851 

E-mail from Matt Minamyer to Ramon Prado re: Weekly Activity Report for week Ending 02/15/08 2/28/2008 JX 0002-A 

CX 0852 

REMOVED -- DUPLICATE EXHIBIT E-mail from Matt Minamyer to Shaun Smith, Pete Lisowski, Ramon Prado et al. re: Special Pricing 3/3/2008 RX-036 JX 0002-A 

CX 0853 

E-mail from Matt Minamyer to Shaun Smith, Pete Lisowski, Michael Berry et al. re: Sigma and Mult Increase 3/4/2008 JX 0002-A 

CX 0854 -CX 0855 Intentionally Not Used N/A 

CX 0856 

E-mail from Shaun Smith to Matt Minamyer re: Sigma Handling the Mult Increase 3/11/2008 JX 0002-A Tr. 3

CX 0857 

E-mail from Ramon Prado to Matt Minamyer re: Sigma Handling the Mult increase 3/11/2008 JX 0002-A 

CX 0858 

E-mail from Shaun Smith to Matt Minamyer, Meiersand Lena Martin re: Chris Antos 3/18/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 34 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0859 -CX 0860 Intentionally Not Used N/A CX 0861 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Push On fitting sales w/Attach: PO Sales by Wt - Jan07 to Mar 08.xls 4/14/2008 JX 0002-A 

CX 0862 

E-mail from Michael Berry to Ramon Prado re: Sigma Fitting Increase Letter 5/19/08 w/Attach: SigmaFittings051908.pdf 4/25/2008 JX 0002-A Tr. 2

CX 0863 

E-mail from Shaun Smith to Matt Minamyer re: Tyler/Union Pricing Letter w/Attach: TylerUnion Announcement May 7 2008.pdf 5/7/2008 JX 0002-A Tr. 2

CX 0864 

E-mail from Shaun Smith to Bob Sheehan re: Tyler/Union Announcement Regarding pending price action on Fittings and Accessories 5/12/2008 JX 0002-A 

CX 0865 

E-mail from Michael Berry to Ramon Prado, Shaun Smith, Pete Lisowski et al. re: Sigma Increase Announcement for Fittings & Accessories w/Attach: Sigmaincrease07142008.pdf 7/8/2008 JX 0002-A 

CX 0866 

E-mail from Shaun Smith to Matt Minamyer re: budget meetings 9/3/2008 JX 0002-A 

CX 0867 

E-mail from Ramon Prado to Matt Minamyer re: budget meetings 9/3/2008 JX 0002-A 

CX 0868 

REMOVED -- DUPLICATE EXHIBIT E-mail from Ramon Prado to Matt Minamyer re: South East - Aug 08 - Division.xls 9/17/2008 CX 1691 JX 0002-A 

CX 0869 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: CONFIDENTIAL -MARKET SHARE INFO 10/20/2008 JX 0002-A 

Ordered 8/31/2012 

CX 0870 Intentionally Not Used N/A 

CX 0871 

E-mail from Shaun Smith to Matt Minamyer re: Sigma Antics 10/30/2008 JX 0002-A 

CX 0872 

REMOVED -- DUPLICATE EXHIBIT E-mail from Bud Leider to Matt Minamyer re: Sigma antics. 10/31/2008 RX-109 JX 0002-A 

CX 0873 

E-mail from Neil McGillivray to Matt Minamyer re: Sigma Antics 11/3/2008 JX 0002-A 

CX 0874 

E-mail from Ramon Prado to Matt Minamyer re: Sigma Antics 11/3/2008 JX 0002-A 

CX 0875 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 35 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0876 E-mail from Bud Leider to Matt Minamyer re: Tyler Rebate on Sigma Fittings 11/4/2008 JX 0002-A CX 0877 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 11/21/08 11/26/2008 JX 0002-A 

CX 0878 

E-mail from Matt Minamyer to Dan McCutcheon and Ramon Prado re: Sigma INCREASE LETTER w/Attach: Sigma Increase letter.pdf 1/20/2009 JX 0002-A 

CX 0879 -CX 0880 Intentionally Not Used N/A CX 0881 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Tyler Begging Letter w/Attach: 0391_001.pdf 1/30/2009 JX 0002-A 

CX 0882 

E-mail from Matt Minamyer to Ramon Prado, Pete Lisowski, Shaun Smith et al. re: Mult Report - Exceptions for CA, AZ, NV - Export Multiplier Exceptions for 2-9-09 w/Attach: KIHO 104489 Exception FEB 09.xls, 1/30/2009 JX 0002-A 

CX 0883 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Multiplier increases 2/2/2009 JX 0002-A 

CX 0884 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Pink Approval Procedure 2/3/2009 JX 0002-A 

Tr. 33279

CX 0885 Intentionally Not Used N/A CX 0886 

E-mail from Ramon Prado to Matt Minamyer, Dan McCutcheon re: Sigma increase list price MJ Accessories w/Attach: SigmaIncreaseMJaccess2009.pdf 4/15/2009 JX 0002-A 

CX 0887 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Multipliers, List Priceand Stimulus Info. 4/23/2009 JX 0002-A 

CX 0888 Intentionally Not Used N/A CX 0889 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Price Increase 4/29/2009 JX 0002-A Tr. 2

CX 0890 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Tyler PL and mult change Strategy 5/1/2009 JX 0002-A Tr. 2

CX 0891 -CX 0892 Intentionally Not Used N/A 

CX 0893 

E-mail from Matt Minamyer to Craig Schapiro re: New Multipliers - Star Pipe Products 2/7/2008 Tr. 3195:8-10 

Tr. 34229

* Connotes an objection on hearsay grounds.Confidential 36 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0894 Intentionally Not Used N/A CX 0895 E-mail from Stuart Box to SDP re: trip report to XXP for LF 10/31/2009 Tr. 3475:4-10 

CX 0896 

Letter from Jerry Jansen to Tyler/Union Utility Customers in CA re: Pricing Multiplier Adjustment Effective February 18, 2008 1/18/2008 

Tr. 411:16-19 JX 0002-A 

Tr. 4753:

CX 0897 

E-mail from Mitchell Rona to Tom Morton re: McWane Domestic Prices thru Sigma 8/27/2009 Tr. 3475:4-10 

CX 0898 Intentionally Not Used N/A CX 0899 

E-mail from Mitchell Rona to Siddharth Bhattacharji re: Lost Foam next step 9/7/2009 Tr. 1544:15-17 Tr. 1

CX 0900 -CX 0904 Intentionally Not Used N/A 

CX 0905 Sigma's Regional Management Review (RMR) 10/27/2009 Tr. 3475:4-10 

CX 0906 

E-mail from Mike Hays to Mitchell Rona re: Fittings Summary w/Attach: Sigma domestic fittings summary.doc 9/15/2009 Tr. 3475:4-10 

CX 0907 Intentionally Not Used N/A CX 0908 

E-mail from Victor Pais to OEM5 re: unwelcome reversal by McWane about Pvt Label! 4/9/2009 JX 0002-A Tr. 1

CX 0909 

E-mail from Victor Pais to Mitchell Rona re: Larry to Ruffner w/Attach: Ruffner Page letter 7-17-09.doc 7/17/2009 JX 0002-A 

CX 0910 

E-mail from Victor Pais to OEM5 re: QRR to resp from McW to new 'SDP (Shared Dom Prodn)' Plan! 7/23/2009 Tr. 3475:4-10 

CX 0911 

E-mail from Victor Pais to OEM5 re: Review of McWSIGMA Master Distribution Agreement offer w/Attach: MCWANE-SIGMA MDA-080309.doc 8/3/2009 Tr. 3475:4-10 

CX 0912 -CX 0913 Intentionally Not Used N/A 

CX 0914 

Letter from Victor Pais to Sigma BOD Team re: BOD Update ... Market Review 5/4/2009 Tr. 3475:4-10 

CX 0915 Letter from Victor Pais to Larry Rybacki re: HTN Visit 5/17/2009 Tr. 1868:4-6 

Tr. 13591

CX 0916 

Letter from Victor Pais to PNC Team Attn: Craig Stillwagon and Pat McConnell re: An interesting NEW opportunity...the 'P2' Plan 12/12/2008 Tr. 3475:4-10 

CX 0917 

Letter from Victor Pais to Walter Florence, Jim McGivern re: Your visit to HTN...'S2' review 12/10/2009 Tr. 3475:4-10 

CX 0918 -CX 0919 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 37 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0920 E-mail from Mitchell Rona to Victor Pais and OEM5 re: Alan Master Distributor Agreement with McWane 7/14/2009 Tr. 3475:4-10 CX 0921 

E-mail from Stuart Box to Victor Pais and OEM5 re: Continuing to review Tyler offer letter w/Attach: IMG_0544.JPG 7/31/2009 Tr. 3475:4-10 

CX 0922 

E-mail from Mitchell Rona to OEM5 re: Email from RT saying no to us selling USP thru our Master Distribution Agreement 8/29/2009 Tr. 3475:4-10 

CX 0923 

E-mail from Ion a Shenoy to Victor Pais re: - SOS -Birmingham Activity update.. w/Attach: SOS Update VMM20 082709.doc 9/2/2009 Tr. 1791:4-6 Tr. 1

CX 0924 

E-mail from Siddharth Bhattacharji to Dave Pietryga re: contact at AGC to support the de-minimums ruling 11/4/2009 Tr. 3475:4-10 

CX 0925 

E-mail from Siddharth Bhattacharji to Victor Pais, Jim McGivern, Larry Rybacki et al. re: here is my redline and clean copy versions of the customer letter w/Attach: BAMDA-Customer letter 090809 9/9/2009 Tr. 3475:4-10 

CX 0926 -CX 0928 Intentionally Not Used N/A 

CX 0929 E-mail from Dave Pietryga to Victor Pais re: ARRA 9/18/2009 Tr. 3475:4-10 CX 0930 -CX 0933 Intentionally Not Used N/A CX 0934 

E-mail from Siddharth Bhattacharji to George Liu re: need your help with SDP of PRP 10/3/2009 Tr. 1856:11-13 Tr. 1

CX 0935 

E-mail from Walter Florence to Siddharth Bhattacharji, McGivernand Victor Pais re: call with US COC 11/3/2009 JX 0002-A Tr. 1

CX 0936 -CX 0937 Intentionally Not Used N/A CX 0938 

Sigma's Monthly Financial Report For the Period Ended October 31, 2009 11/25/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 0939 

E-mail from Mitchell Rona to Jim McGivern and OEM5 re: Hajoca 12/15/2009 Tr. 3475:4-10 

CX 0940 

E-mail from Jim McGivern to Mitchell Rona, OEM5 re: Hajoca 12/15/2009 Tr. 3475:4-10 

CX 0941 -CX 0942 Intentionally Not Used N/A 

CX 0943 

E-mail from Victor Pais to Mitchell Rona re: Follow up of McWane dialog... 8/5/2009 Tr. 3475:4-10 

CX 0944 Letter from Victor Pais to Ruffner Page re: Personal 6/9/2009 Tr. 3475:4-10 CX 0945 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 38 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0946 

E-mail from Victor Pais to Siddharth Bhattacharji re: URGENT meeting this mrg... 8/24/2009 Tr. 3475:4-10 

CX 0947 

E-mail from Victor Pais to OEM5 re: Draft of the proposed Customer Letter about BA/MDA 9/9/2009 Tr. 3475:4-10 

CX 0948 

E-mail from Victor Pais to Mitchell Rona re: Master Distribution Agreement follow up 9/9/2009 Tr. 1816:3-5 

Tr. 11816

CX 0949 Intentionally Not Used N/A CX 0950 

E-mail from Victor Pais to Rick Tatman re: Signed Master Distribution Agreement document and draft customer letter... w/Attach: BA-MDA-CUSTOMER LETTER091509.doc 9/17/2009 Tr. 3475:4-10 

CX 0951 

E-mail from Victor Pais to OEM5 re: RT's resp to draft of BA-MDA-CUSTOMER LETTER-091509.doc w/Attach: BAMDA-CUSTOMER LETTER-091509.doc 9/17/2009 Tr. 3475:4-10 

CX 0952 

E-mail from Victor Pais to Mitchell Rona and OEM5 re: Master Distribution Agreement vs. De Minimis (which way to play the game) w/Attach: MDA-GM COMP-092309.xls 9/23/2009 Tr. 3475:4-10 

CX 0953 

E-mail from Victor Pais to Larry Rybacki re: Caution about VR on Master Distribution Agreement --> Sigma Rebate on Domestic Fittings 9/24/2009 Tr. 1827:23-25 

Tr. 11828

CX 0954 

E-mail from Victor Pais to Walter Florence and M5 re: ARRA/BA & Chamber of Commerce 10/31/2009 Tr. 3475:4-10 

CX 0955 Intentionally Not Used N/A 

CX 0956 

E-mail from Mark Meyer to Victor Pais re: Response to your update abt Star's deliveries (guys, see bel... 6/25/2009 Tr. 3475:4-10 

CX 0957 

E-mail from Walter Florence to Victor Pais and Jeff Marcus re: Ares call 6/24/2009 Tr. 1775:11-13 Tr. 1

CX 0958 

E-mail from Siddharth Bhattacharji to Jeff Marcus and Victor Pais re: capturing the SDP expenses 6/18/2009 Tr. 3475:4-10 

CX 0959 

E-mail from Stuart Box to Siddharth Bhattacharji re: development plans for SDP 6/17/2009 Tr. 3475:4-10 

CX 0960 Intentionally Not Used N/A CX 0961 

E-mail from Siddharth Bhattacharji to Siddharth Bhattacharji re: step-by-step-waiver-ARRA w/Attach: stepby-step-waiver-ARRA 6/13/2009 Tr. 3475:4-10 

CX 0962 

E-mail from Siddharth Bhattacharji to Victor Pais, Rybackiand Tom Brakefield re: mtg distributors to discuss ARRA and BA in AWWA 6/7/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 39 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0963 

E-mail from Stuart Box to Siddharth Bhattacharji, Gopi Ramanathan, Victor Pais et al. re: notes from our meeting 6/03 & 04 6/5/2009 Tr. 1482:9-11 Tr. 1

CX 0964 

E-mail from Stuart Box to Victor Pais and Siddharth Bhattacharji re: Response on your Korea sourcing plan --with strategic look @ other options... w/Attach: slde cost analysis using domestic quotes.xls 5/15/2009 Tr. 3475:4-10 

CX 0965 

E-mail from Michael Walsh to Mike Roy, Kevin Flanagan, Ken Stephenson et al. re: Multiplier & List Change w/Attach: Price Multipliers for May 12 2009.doc 5/11/2009 Tr. 3475:4-10 

CX 0966 

E-mail from Siddharth Bhattacharji to liuguang, Liuand Pramod Neotia re: an update on our ftgs pricing strategy w/Attach: CUSTOMER LETTER - PRICING REVIEWFITTINGS-042709.pdf 4/28/2009 Tr. 3475:4-10 

CX 0967 Intentionally Not Used N/A CX 0968 

E-mail from Stuart Box to Victor Pais and OEM5 re: BA Options 4/24/2009 Tr. 3475:4-10 

CX 0969 

E-mail from Mitchell Rona to Victor Pais and Siddharth Bhattacharji re: QRR-->KO 4/23/2009 JX 0002-A 

CX 0970 -CX 0973 Intentionally Not Used N/A CX 0974 

E-mail from Siddharth Bhattacharji to Jeff Marcus re: our appraisal (JM Request for file) w/Attach: response to your questions about the market and pricing.msg; response to your questions.msg 3/3/2009 JX 0002-A Tr. 2

CX 0975 -CX 0976 Intentionally Not Used N/A 

CX 0977 

E-mail from Tom Brakefield to Victor Pais, Siddharth Bhattacharji and Larry Rybacki re: Draft of 'OPEN CHOICE CUSTOMER LETTER' ... w/Attach: 'OPEN CHOICE' CUSTOMER LETTER-012809.doc 1/28/2009 Tr. 3475:4-10 

CX 0978 

E-mail from Victor Pais to Mitchell Rona, Siddharth Bhattacharji, Gopi Ramanathan et al. re: Recap of SDP meeting from Wednesday June 17th 6/18/2009 Tr. 1507:13-15 Tr. 1

CX 0979 -CX 0984 Intentionally Not Used N/A CX 0985 

E-mail from Victor Pais to M20 re: Reviving DIFRA w/Attach: DIFRA-SIGMA-SMS-1108.xls 5/4/2009 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 40 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 0986 -CX 0987 Intentionally Not Used N/A CX 0988 

E-mail from Victor Pais to Gary Crawford and Stephen Gables re: Our letter to EPA w/Attach: Victor Victor Pais to Peter [Deleted Object] formal appeal to EPA for waiver consideration.msg 4/24/2009 Tr. 3475:4-10 

CX 0989 E-mail from Victor Pais to M20: Tyler Price Increase 4/16/2009 Tr. 3475:4-10 Tr. 3

CX 0990 -CX 0992 Intentionally Not Used N/A 

CX 0993 

E-mail from Victor Pais to Walter Florence, McGivernand Siddharth Bhattacharji re: US Chamber Conference Call -Confirm 11/4 @ 5pm EST (4pm Central) 3/11/2010 Tr. 3475:4-10 

CX 0994 Intentionally Not Used N/A CX 0995 

E-mail from Victor Pais to M20 re: URGENT --> A comprehensive MAP-1 : SALES STRATEGY for 09 w/Attach: RST-09-MAP1--SALES STRATEGY-M20-111108.doc 11/11/2008 Tr. 3475:4-10 

CX 0996 

Letter from Victor Pais to Sigma Sales Team re: Follow up of our plans for BA-- Master Distribution Agreement with Tyler/Union and additional source for domestic Fittings in the 30 - 48" 9/30/2009 Tr. 3475:4-10 

CX 0997 

E-mail from Ion a Shenoy to Victor Pais re: - SOS Update (from VM) - Master Distribution Agreement w/Attach: SOS Master Distribution Agreement VP-VM 090909.doc 9/22/2009 Tr. 1853:5-7 

Tr. 11853

CX 0998 -CX 0999 Intentionally Not Used N/A 

CX 1000 E-mail from Siddharth Bhattacharji to Jim re: SDA 1/19/2010 Tr. 1836:1-3 

Tr. 11836

CX 1001 

Letter from Victor Pais to ARES team re: Response to you queries 12/11/2008 Tr. 3475:4-10 

CX 1002 

E-mail from Victor Pais to M20 re: Review of our FTG pricing -- by MULT + PER LB w/Attach: FTG PRIC REVIEW-MULT-PER LB-08.xls 1/27/2009 Tr. 3475:4-10 

Ordered 11/8/2012 

Tr. 3365337335770

CX 1003 

E-mail from Victor Pais to Walter Florence re: BA review and Response to your queries w/Attach: BA REVIEWRESPONSES to WF-022009.doc 2/20/2009 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 41 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1004 - CX 1006 Intentionally Not Used N/A CX 1007 

E-mail from Andy Podner to Siddharth Bhattacharji re: MHCN and Sigma w/Attach: ARRA-Dodge Presentation(rev6-8-09).doc 6/10/2009 Tr. 3475:4-10 

CX 1008 

Sigma ARRA Projects in the McGraw Hill / F.W. Dodge Network 6/8/2009 Tr. 3475:4-10 

CX 1009 

E-mail from Walter Florence to M4-BFA and Jim McGivern re: follow up on yesterday 6/10/2009 Tr. 3475:4-10 

CX 1010 -CX 1013 Intentionally Not Used N/A CX 1014 

REMOVED -- DUPLICATE EXHIBIT E-mail from Victor Pais to Larry Rybacki re: URGENT --Need to stabilize market pricing w/Attach: PRICE INCREASE LETTER-112408.doc 11/24/2008 RX-116 JX 0002-A 

CX 1015 Intentionally Not Used N/A 

CX 1016 

E-mail from Victor Pais to Larry Rybacki re: draft of letter to Ruffner .... w/Attach: RP-McW 062309.doc 7/1/2009 Tr. 3475:4-10 

CX 1017 

E-mail from to Mitchell Rona to Gopi Ramanathan and Stuart Box re: Updated SDP File w/Attach: SDPcompiledlist.xls 7/10/2009 Tr. 3475:4-10 

CX 1018 

E-mail from Jim McGivern to Victor Pais re: Possible Master Distributor Agreement with McWane 7/13/2009 JX 0002-A Tr. 1

CX 1019 Intentionally Not Used N/A CX 1020 

E-mail from Stuart Box to Siddharth Bhattacharji, Mitchell Rona, Gopi Ramanathan et al. re: some questions on the MTF offer 8/12/2009 Tr. 3475:4-10 

CX 1021 Intentionally Not Used N/A CX 1022 

E-mail from Victor Pais to Gopi Ramanathan re: follow up of our lunch mtg 9/16 -- Confidential BOD update w/Attach: BOD-UPDATE-GL-091409.doc 9/18/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 1023 

Letter from Victor Pais to Fang Gang re: A Strategic Update - State of Sigma and a few BIG Opportunities... 10/4/2009 Tr. 3475:4-10 

CX 1024 

E-mail from Craig Schapiro to Larry Rybacki re: Pricing Corrections 11/3/2009 JX 0002-A 

CX 1025 -CX 1031 Intentionally Not Used N/A CX 1032 

E-mail from Michael Walsh to Larry Rybacki and Jim McGivern re: CRM domestic fitting business plan...a success story 1/15/2010 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 42 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1033 -CX 1035 Intentionally Not Used N/A CX 1036 Sigma: Key Operational Highlights - January 2010 3/2/2010 Tr. 3475:4-10 CX 1037 -CX 1041 Intentionally Not Used N/A CX 1042 

E-mail from Victor Pais to M20 re: Review of RST-09...PCA09...PLAN-09 w/Attach: RST-GMT-09-050109-V6.xls 5/6/2009 Tr. 3475:4-10 

CX 1043 -CX 1044 Intentionally Not Used N/A 

CX 1045 

E-mail from Siddharth Bhattacharji to Jim McGivern and Victor Pais re: status on Master Distribution Agreement 9/4/2009 Tr. 3475:4-10 

CX 1046 

E-mail from Mitchell Rona to OEM5 re: Completed negotiations with McWane.........please read carefully w/Attach: Terms and Conditions of Sale-Tyler.doc; MDARESPONSE-final-08-31-09.doc 8/31/2009 Tr. 1587:9-11 Tr. 1

10 

CX 1047 

E-mail from Jim McGivern to Siddharth Bhattacharji re: recd latest email from James M. Proctor 9/4/2009 Tr. 3475:4-10 

CX 1048 Intentionally Not Used N/A CX 1049 

E-mail from Victor Pais to Siddharth Bhattacharji, Walter Florence and S. Goldblatt re: QRR on yours -- dilemma 2/27/2009 Tr. 3475:4-10 

CX 1050 Intentionally Not Used N/A CX 1051 

E-mail from Victor Pais to S. Goldblatt re: Update on EPA w/Attach: Victor Pais to Peter ShanaghanP_formal appeal to EPA for Waiver consideration.msg 4/24/2009 Tr. 3475:4-10 

CX 1052 

E-mail from Gopi Ramanathan to Victor Pais and OEM5 re: Our disc on our 'SDP (Sigma Dom Prodn) plan 5/24/2009 Tr. 3475:4-10 

CX 1053 

E-mail from Victor Pais to Walter Florence re: A few strategic Options for SIG...including a 'Big Plan'...'MAX'? 5/26/2009 Tr. 3475:4-10 

CX 1054 -CX 1057 Intentionally Not Used N/A CX 1058 

Letter from Larry Rybacki to Sigma's Valued Customer re: Pricing Review for AWWA MJ Fittings 4/24/2009 Tr. 3475:4-10 

CX 1059 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 43 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1060 

Letter from Larry Rybacki to Sigma Utility Fittings Customers in ME, VT, NH et al. re: New Multipliers effective May 12, 2009 off New List Price Sheet dated the same. 5/8/2009 Tr. 3475:4-10 Tr. 3

CX 1061 -CX 1062 Intentionally Not Used N/A 

CX 1063 

E-mail from Victor Pais to M4-BFA and Tom Brakefield re: Response to Ares questionnaire... w/Attach ARESQUESTIONNAIRE RESPONSE-071609.doc 7/16/2009 Tr. 3475:4-10 

CX 1064 -CX 1065 Intentionally Not Used N/A CX 1066 

E-mail from Tom Brakefield to Michael Walsh re: CRM domestic fitting business plan...a success story 12/10/2009 Tr. 3475:4-10 

CX 1067 

E-mail from Michael Walsh to Jim McGivern, Tom Brakefield, Al Richardson et al. re: Agenda items for TDG 1/13/2010 Tr. 3475:4-10 

CX 1068 Intentionally Not Used N/A CX 1069 

E-mail from Victor Pais to Walter Florence, Bhattacharjiand S. Goldblatt re: Re-thinking 'BA' strategy -- an interesting dilemma 2/26/2009 Tr. 3475:4-10 

CX 1070 

E-mail from Larry Rybacki to M20 re: Tyler Union Letter w/Attach: Tyler Union Letter 1-27-09.tif 1/27/2009 Tr. 3475:4-10 

CX 1071 Intentionally Not Used N/A CX 1072 

E-mail form Victor Pais to Dan McCutcheon and Larry Rybacki re: Thank you for your support... w/Attach WASMABA AMENDMENT to ARRA-012709.pdf, WASMAAMENDMENT-ARRA-MODIFICATION #2-012809.doc, WASMA-FINAL WHITE PAPER-012609.doc, WASMACOVER LETTER-012609.doc 1/30/2009 Tr. 3475:4-10 

CX 1073 Intentionally Not Used N/A CX 1074 

Sigma Letter to M5 re : '10-in-10' .. Top 10 goals for the 'M5' team for PLAN-10 12/7/2009 JX 0002-A 

CX 1075 Intentionally Not Used N/A CX 1076 

E-mail from Walter Florence to Victor Pais re: A few strategic Options for SIG...including a 'Big Plan'...'MAX'? 5/26/2009 Tr. 1857:11-13 Tr. 1

CX 1077 

E-mail from Michael Walsh to Victor Pais re: QRR --ECDA pricing 12/18/2008 Tr. 2005:16-18 Tr. 2

CX 1078 -CX 1079 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 44 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1080 Agenda for DIFRA meeting - 3/27/2008 3/27/2008 JX 0002-A Tr. 1

CX 1081 E-mail from Tom Brakefield to Rick Tatman re: DIFRA 2/7/2008 JX 0002-A Tr. 4

CX 1082 Intentionally Not Used N/A CX 1083 

E-mail from Tom Brakefield to Larry Rybacki re: Proposed Trade Association Meeting - Ductile Iron Fittings Research Association (DIFRA) 2/13/2008 JX 0002-A 

CX 1084 

E-mail from Dan McCutcheon to Thad G. Long, Tom Brakefield, Rick Tatman et al. re: DIFRA Meeting 3/3/2008 

Tr. 2416:14-16 Tr. 2

CX 1085 

REMOVED -- DUPLICATE EXHIBIT E-mail from Dan McCutcheon to Tom Brakefield, Thad G. Long, Victor Pais et al. re: [no subject] 5/7/2008 

RX-580 

CX 2274 (DIFRA000410 - DIFRA000412) JX 0002-A Tr. 1

CX 1086 

E-mail from Tom Brakefield to Larry Rybacki re: DIFRA numbers 6/5/2008 JX 0002-A Tr. 1

CX 1087 Intentionally Not Used N/A CX 1088 

E-mail from Victor Pais to M20 re: An important Review of DIFRA (SRP) and SMS (Sigma Market Share) w/Attach: DIFRA-SIGMA-SMS-808.xls 10/13/2008 JX 0002-A Tr. 1

CX 1089 E-mail from Tom Brakefield to Larry Rybacki re: DIFRA 5/6/2008 JX 0002-A Tr. 3CX 1090 

E-mail from Tom Brakefield to Larry Rybacki re: response to the tonnage for DIFRA w/Attach re: DIFRA Input Output Format Rev 2 xls (3).xls 5/30/2008 Tr. 1291:10-12 Tr. 1

CX 1091 

E-mail from Dan McCutcheon to Tom Brakefield re: DIFRA numbers 6/5/2008 JX 0002-A Tr. 2

CX 1092 

E-mail from Victor Pais to M20 re: DIFRA Data and Sigma Market Share (SMS) review w/Attach: DIFRA-SMS-408-SUMMARY.xls 6/19/2008 JX 0002-A 

Tr. 12116

CX 1093 -CX 1094 Intentionally Not Used N/A 

CX 1095 

E-mail from Victor Pais to Walter Florence re: My quick trip to Birmingham 10/31/2008 Tr. 3475:4-10 

CX 1096 

Letter from Victor Pais to Walter Florence re: response to your PLAN-09 inputs... 11/17/2008 Tr. 3475:4-10 

CX 1097 Intentionally Not Used N/A CX 1098 

E-mail from Bob Leggett to Victor Pais re: AWWA Follow Up 7/1/2009 Tr. 3475:4-10 

CX 1099 Intentionally Not Used N/A CX 1100 

E-mail from Victor Pais to Siddharth Bhattacharji re: your letter to WF with my edits w/Attach: response to walter 121009.doc 12/10/2009 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 45 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1101 

E-mail from Fred Stevens to Victor Pais and Dave Pietryga re: Proposal for VR-09 for Michigan Pipe and Valve 1/22/2009 Tr. 3475:4-10 

CX 1102 

E-mail from Victor Pais to Dan McCutcheon re: Follow up to discuss the stimulus bill/BA 2/2/2009 Tr. 3475:4-10 

CX 1103 

E-mail from Al Richardson to Victor Pais and RM6 re: Pricing Alert in NTX and OK... 2/23/2010 Tr. 3475:4-10 

CX 1104 

E-mail from Victor Pais to M20, Jim Stohr, Joel Wilmsmeyer et al. re: A New Opportunity to improve Pricing -- FAB... w/Attach: uvintl pricing.pdf 1/18/2010 Tr. 3475:4-10 

CX 1105 -CX 1107 Intentionally Not Used N/A CX 1108 

E-mail from Victor Pais to Greg Fox and Larry Rybacki re: Need to stabilize market pricing 11/4/2008 JX 0002-A 

CX 1109 

E-mail from Victor Pais to Dick Williams re: PW Playing Field w/Attach: SIG-PW-Growth Strategy Update.doc 12/5/2008 Tr. 3475:4-10 

CX 1110 Intentionally Not Used N/A CX 1111 

E-mail from Victor Pais to Dan McCutcheon re: Lunch Thursday 12/9/2008 JX 0002-A Tr. 2

CX 1112 E-mail from Victor Pais to Dan McCutcheon re: mtg.. 9/3/2009 Tr. 3475:4-10 CX 1113 

E-mail from Ruffner Page to Victor Pais re: Response to your feedback -- a strategic opportunity... 1/4/2008 Tr. 3475:4-10 

Tr. 44673

CX 1114 

E-mail from Siddharth Bhattacharji to Barry Keane re: price increase announcement by Tyler w/Attach: 20080114102950625.pdf 1/15/2008 Tr. 3475:4-10 

CX 1115 -CX 1116 Intentionally Not Used N/A CX 1117 

E-mail from Rick Tatman to Victor Pais re: 3"-8" DIWF from Tyler/Union 2/1/2008 JX 0002-A 

Tr. 44667

CX 1118 -CX 1120 Intentionally Not Used N/A 

CX 1121 

E-mail from Raju Kakani to Victor Pais re: Tyler multiplier analysis w/Attach: 2007SalesWithTylerBlendedMult.xls 2/19/2008 Tr. 3475:4-10 

CX 1122 

E-mail from Dan McCutcheon to Victor Pais re: Nit Noi Thai Restaurant & Nit Noi Cafe 2/19/2008 JX 0002-A Tr. 1

CX 1123 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 46 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1124 

E-mail from Mitchell Rona to Siddharth Bhattacharji and Victor Pais re: 3"-8" DIWF from Tyler/Union 3/11/2008 Tr. 1609:8-10 

Tr. 1162016321706

CX 1125 

REMOVED -- DUPLICATE EXHIBIT E-mail from Dick Williams to Victor Pais and M20 re: Our pricing strategy for FTGs 4/11/2008 RX-045 JX 0002-A 

CX 1126 

E-mail from Christopher King to Victor Pais and M20 re: Change To Price increase letter 4/18/2008 Tr. 3475:4-10 

CX 1127 

E-mail from Greg Fox to Victor Pais, Larry Rybacki, Jeff Marcus et al. re: Regional Managers Review topics w/Attach: Regional Review April 2008.doc 4/26/2008 JX 0002-A Tr. 3

CX 1128 

E-mail from Xal83@sprintspcs.com to M20 re: TylerUnion Price Increase w/Attach: TylerUnionAnnouncementMay72008.pdf 5/8/2008 JX 0002-A Tr. 1

CX 1129 

E-mail from Tom Brakefield to Victor Pais and Larry Rybacki re: Star's tonnage data 5/17/2008 JX 0002-A Tr. 3

CX 1130 

E-mail from Tom Brakefield to Victor Pais re: Star's tonnage data 5/30/2008 JX 0002-A Tr. 3

CX 1131 

E-mail from Victor Pais to Walter Florence re: Following up on RED/D2H 5/8/2008 Tr. 3475:4-10 

CX 1132 

E-mail from Victor Pais to M20 re: Revised Plant Work letter as discd @ RMR last week... w/Attach: Customer Letter-Plant Work Job Pricing 50508.pdf 5/6/2008 Tr. 3475:4-10 

CX 1133 Intentionally Not Used N/A CX 1134 

E-mail from Victor Pais to Larry Rybacki and M20 re: Change To Price increase letter 4/18/2008 JX 0002-A Tr. 1

CX 1135 

REMOVED -- DUPLICATE EXHIBIT E-mail from Victor Pais to Dave Pietryga, Rybackiand Siddharth Bhattacharji re: Our pricing strategy for FTGs 4/14/2008 RX-047 Tr. 3475:4-10 

CX 1136 Intentionally Not Used N/A CX 1137 

E-mail from Victor Pais to M20 re: Resp to your inputs on our Pricing Strategy... 4/11/2008 

Tr. 1935:25-1936:2 Tr. 1

CX 1138 

E-mail from Victor Pais to M20 re: Our pricing strategy for FTGs w/Attach: Sigma-Multiplier Map-508.pdf; Customer Letter-Plant Work & Job Pricing -41008.doc 4/11/2008 JX 0002-A Tr. 1

CX 1139 -CX 1140 Intentionally Not Used N/A CX 1141 

E-mail from Victor Pais to Mitchell Rona and Siddharth Bhattacharji re: Follow up with Tyler 3/9/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 47 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1142 

E-mail from Victor Pais to Siddharth Bhattacharji, Mitchell Rona, Tom Brakefield et al. re: QRR -- DG + FTG from Union 2/8/2008 JX 0002-A 

CX 1143 E-mail from Victor Pais to Dan McCutcheon re: our meeting 2/8/2008 

Tr. 1954:25-1955:2 

Tr. 12367

CX 1144 Intentionally Not Used N/A CX 1145 

E-mail from Victor Pais to M20 re: Multiplier Review w/Attach: Multiplier Review-by Terry-1207-12408.xls 1/24/2008 JX 0002-A 

Tr. 12058

CX 1146 Intentionally Not Used N/A 

CX 1147 

E-mail from Steve Goodwyn to Victor Pais re: MCC Floor Price Revision w/Attachments (List Pricing) 10/20/2008 Tr. 3475:4-10 

CX 1148 Intentionally Not Used N/A 

CX 1149 

E-mail from Mitchell Rona to OEM5 re: Short talk with Rick Tatman 8/22/2008 Tr. 1613:19-21 

Tr. 11717

CX 1150 Intentionally Not Used N/A CX 1151 

E-mail from Steve Goodwyn to M20 re: Fittings Multiplier Analysis w/Attach: Copy of FTG-PRC-MULT-608.xls, TYLER Feb 2008 Map-BLENDED.pdf, Tyler 08 Multiplier Revisions.ppt 7/25/2008 JX 0002-A 

CX 1152 

E-mail from Victor Pais to M20 re: MCC Floor Price Revision 10/17/2008 Tr. 3475:4-10 

CX 1153 

E-mail from Victor Pais to Siddharth Bhattacharji re: A few addl (may be even 2nd) thoughts on P2... 9/30/2008 Tr. 3475:4-10 

CX 1154 Intentionally Not Used N/A CX 1155 

E-mail from Victor Pais to M20 re: My visit to Concord 8/8/08...and a few recommendations... 9/2/2008 Tr. 3475:4-10 

CX 1156 

E-mail from Victor Pais to Walter Florence and Siddharth Bhattacharji re: Your observations as to the scope of 'P2 (Power-of-2)' Plan 8/28/2008 Tr. 3475:4-10 

CX 1157 

E-mail from Victor Pais to Walter Florence, Rybackand Siddharth Bhattacharji re: Conf call with Ruffner - Friday 8/29 @ 11am EDT/10am CDT 8/26/2008 Tr. 3475:4-10 

CX 1158 

E-mail from Victor Pais to OEM5 re: My outline of Global opportunities to Ruffner... w/Attach: Re_VP to Ruffner_ISOPatterns & tooling.msg 7/10/2008 Tr. 3475:4-10 

CX 1159 -CX 1161 Intentionally Not Used N/A CX 1162 

E-mail from Victor Pais to Walter Florence, Fang Gang, Jim McGivern et al. re: Resending -- Presentation package for Acquisition Plan 'D2H' w/Attachments 7/30/2008 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 48 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1163 

E-mail from Victor Pais to Bill Mitch re: Dutco update... w/Attach: Victor to Naga_Follow up with a promising J_V opportunity....msg; XINDIA-XXP-McWane Strategic Plan80408.doc 8/15/2008 Tr. 3475:4-10 

CX 1164 Sigma: A Management Update 9/14/2009 Tr. 3475:4-10 CX 1165 Intentionally Not Used N/A CX 1166 

E-mail from Victor Pais to OEM5 re: Draft of the proposed CUSTOMER LETTER about BA/MDA w/Attach: BA-MDACUSTOMER LETTER-090809 9/8/2009 Tr. 1799:3,5-6 Tr. 1

1799

CX 1167 -CX 1169 Intentionally Not Used N/A 

CX 1170 

REMOVED -- DUPLICATE EXHIBIT E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Mult Change plan for your review 1/23/2008 CX 0034 JX 0002-A 

CX 1171 Intentionally Not Used N/A CX 1172 

E-mail from Siddharth Bhattacharji to Mark Meyerand Mitchell Rona re: our plans for MTF ftgs 3/6/2009 Tr. 3475:4-10 

CX 1173 

REMOVED -- DUPLICATE EXHIBIT E-mail from Victor Pais to Bruce Ellenberger re: Our response to your follow about our interest in Metalfit... 5/26/2009 RX-153 JX 0002-A 

CX 1174 

E-mail from Victor Pais to M20 re: DIFRA-SIGMA-SMS1008 w/Attach: DIFRA-SIGMA-SMS-1008 12/7/2008 Tr. 2001:6-8 Tr. 2

CX 1175 Intentionally Not Used N/A CX 1176 

REMOVED -- DUPLICATE EXHIBIT Tyler/Union 2009 Narrative for Thad G. Long Range Plan 12/19/2008 RX-618 JX 0002-A 

CX 1177 Tyler/Union Executive Report for 1st Quarter 2008 4/16/2008 JX 0002-A 

Tr. 44092

CX 1178 

Letter from Jerry Jansen to Valued Customers re: Pending Price Change for Utility Fittings and Accessories 1/10/2008 JX 0002-A 

Tr. 3892:3099388154295844

CX 1179 

E-mail from Rick Tatman to Laura Alvey re: Sept 22nd Announcement Q&A w/Attach: Sept 22nd Announcement Q&A Rev2.doc 10/6/2009 JX 0002-A Tr. 8

* Connotes an objection on hearsay grounds.Confidential 49 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1180 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: RST is available @ 8:30 Inputs Sigma Response - Tyler/Union New List and Multipliers 4/28/2009 

CX 0650 (TUFTC-0031726 -

TU-FTC0031729) JX 0002-A Tr. 6

CX 1181 

E-mail from Rick Tatman to Jerry Jansen re: Market Multipliers April 2009 w/Attach: Market Multipliers April 2009.ppt 4/8/2009 JX 0002-A 

CX 1182 

E-mail from Rick Tatman to Mitchell Rona re: ACIPCO Domestic Product w/ Attach: Sigma ACIPCO Domestic Product Letter 6.1.2009.pdf 6/1/2009 JX 0002-A 

CX 1183 

E-mail from Ruffner Page to Craft O'Neal re: Q4/December EVA Performance 1/29/2008 JX 0002-A 

CX 1184 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Sigma Review August 17th 2009 w/Attach: Sigma Review August 17th 2009.ppt 8/18/2009 JX 0002-A Tr. 7

CX 1185 Intentionally Not Used N/A CX 1186 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Agree on Waiting until Data is available: DIFRA Data not available 5/24/2008 JX 0002-A Tr. 5

CX 1187 

E-mail from Rick Tatman to Walton Thomas and Leon McCullough re: DIFRA Reporting 6/4/2008 JX 0002-A Tr. 5

CX 1188 

E-mail from Rick Tatman to Leon McCullough re: TylerUnion State of Business Rev3.ppt w/Attach: TylerUnion State of Business Rev3.ppt 9/11/2008 JX 0002-A 

CX 1189 

E-mail from Larry Rybacki to M20 re: Multiplier with Logo and Larry's Signature w/Attach: Sigma Multiplier Adjustment 2-25-08.doc 1/30/2008 JX 0002-A 

Tr. 142204258

CX 1190 

Letter from Jerry Jansen and Scott Frank to Valued Customer re: domestic fittings and accessories 9/22/2009 

CX 0006 (no 

bate number) JX 0002-A 

CX 1191 

Letter from Jerry Jansen to Glenn Fielding re: July 14, 2008 Price Change for Utility Fittings and Accessories 6/17/2008 JX 0002-A 

CX 1192 

Letter from Jerry Jansen to Butch J. Doane re: July 14, 2008 Price Change for Utility Fittings and Accessories 6/17/2008 JX 0002-A 

CX 1193 

Draft Letter from Jerry Jansen to contact for HDS, FEI, TDG re: June 16th Price Change for Utility Fittings and Accessories 5/29/2008 JX 0002-A Tr. 5

CX 1194 OEM Distribution Agreement between McWane and Sigma 9/17/2009 JX 0002-A 

Tr. 71807

CX 1195 TylerUnion Presentation: Waterworks Fittings Group 1/6/2008 JX 0002-A CX 1196 Jerry Jansen Utility Weekly Report 12/13/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 50 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1197 E-mail from Kent Brown to Thomas Walton re: Hajoca Open Domestic fitting orders - Tyler Union 12/2/2009 JX 0002-A CX 1198 -CX 1201 Intentionally Not Used N/A CX 1202 

E-mail from Bruce Duncan to Jeff Otterstedt and Scott Frank re: Announcement Letter Draft 2 McWane Only.doc w/Attach: Announcement Letter Draft 2 McWane Only.doc 9/18/2009 JX 0002-A 

CX 1203 

E-mail from Marla Drake to Jerry Jansen re: 42" 48" MJ C153 11/28/2009 JX 0002-A 

CX 1204 

E-mail from Thomas Walton to Leon McCullough re: Fittings 4/18/2008 JX 0002-A 

CX 1205 Intentionally Not Used N/A CX 1206 

2010 -2012 McWane Corporate Rebate Program for Ferguson 12/12/2009 JX 0002-A 

CX 1207 

McWane, Inc. Sales $ for Rebates Estimate for the year ending 12/31/2009 12/12/2009 JX 0002-A 

CX 1208 

2010 - 2012 McWane Corporate Rebate Program for Winwholesale 12/12/2009 JX 0002-A 

CX 1209 

E-mail from Rick Tatman to Leon McCullough, Walton Thomasand Jerry Jensen re: Buy American 2/23/2009 JX 0002-A Tr. 6

CX 1210 -CX 1215 Intentionally Not Used N/A 

CX 1216 

E-mail from Rick Tatman to Thomas Walton, Leon McCulloughand Jerry Jansen re: Star 300 Patterns 12/4/2009 JX 0002-A 

CX 1217 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Large Dia Fittings ACIPCO - TylerUnion 10/23/2009 JX 0002-A 

CX 1218 Intentionally Not Used N/A 

CX 1219 

E-mail from Rick Tatman to Darryl Case re: Tyler/ Union consignment w/Attach: Consignment.ppt 6/11/2009 JX 0002-A 

CX 1220 

E-mail from Rick Tatman to Jerry Jansen re: BA Substitution Policy 6/5/2009 JX 0002-A 

CX 1221 Intentionally Not Used N/A 

CX 1222 

E-mail from Rick Tatman to Thomas Walton Jim Anderlik Leon McCullough re: HDS Supply & General market actions w/Attach: RevC 2009 TylerUnion DIWF Program Feb 23rd.doc, Elmira Announcement Draft.doc, List Price Change draft.doc, TuffGrip Special Price Draft.doc 2/24/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 51 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1223 E-mail from Rick Tatman to Jerry Jansen re: Rick 2/9/2009 JX 0002-A Tr. 1

CX 1224 Intentionally Not Used N/A CX 1225 

E-mail from Ruffner Page to James M. Proctor re: A few personal thoughts ahead of our meeting tomorrow... 8/24/2009 JX 0002-A 

CX 1226 

E-mail from Ruffner Page to Leon McCullough re: December DIFRA Report 1/23/2009 JX 0002-A 

CX 1227 

E-mail from Rick Tatman to Chris Nichols re: Regional Yards w/Attach: 2006 Tonnage by State 2/5/2009 JX 0002-A 

CX 1228 

E-mail from Laura Alvey to Jerry Jansen and Rick Tatman re: UTIL Annual 2009 1/26/2010 JX 0002-A 

CX 1229 

E-mail from Gwen Jackson to Rick Tatman, Kirtleyand Laura Alvey re: Utility Rebates w/Attach: UTILQ4 1/7/2010 JX 0002-A 

CX 1230 Intentionally Not Used N/A 

CX 1231 

E-mail from Rick Tatman to Roy Pitts re: Hajoca Rebates w/Attach: Hajoca REB Q4.XLS, Hajoca REB Annual 2/11/2010 JX 0002-A 

CX 1232 -CX 1233 Intentionally Not Used N/A CX 1234 

E-mail from Leon McCullough to Rick Tatman re: Rick Tatman Comments Revised Hajoca Corporate Rebate Proposal 1/8/2010 JX 0002-A 

CX 1235 

E-mail from Rick Tatman to Gwen Jackson re: Alan Master 2010 Utility Rebate Log w/Attach: Alan Master 2010 Utility Rebate Log 1/29/2010 JX 0002-A 

CX 1236 

E-mail from Rick Tatman to Jerry Jansen re: RST Response IWWG Proposal 11/23/2009 JX 0002-A 

CX 1237 

E-mail from Leon McCullough to Rick Tatman and Thomas Walton re: Sigma Private Label 3/18/2009 JX 0002-A 

CX 1238 

E-mail from Rick Tatman to Mark Willett re: Elmira Domestic Stocking Plan 10/12/2009 JX 0002-A 

CX 1239 

E-mail from Kent Brown to Rick Tatman re: Help with revised Star costs 3/12/2010 JX 0002-A 

CX 1240 

E-mail from Rick Tatman to Mark Willett re: Daily Activity Summary II Report March 18th w/Attach: WWorksboth 3/20/2010 JX 0002-A 

CX 1241 

E-mail from Rick Tatman to Kent Brown re: UFCO financial model 1/21/2010 JX 0002-A 

CX 1242 

E-mail from Victor Pais to Rick Tatman re: Draft of Customer Letter 9/17/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 52 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1243 E-mail from Mitchell Rona to Rick Tatman re: Agreement to Sell Sigma Domestic Product 6/8/2009 JX 0002-A Tr. 6

CX 1244 

E-mail from Jerry Jansen to Rick Tatman re: Pricing in Florida w/Attach: Live Oak Job - HD Supply Tallahassee 4/14/2009 JX 0002-A 

CX 1245 Intentionally Not Used N/A CX 1246 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: HD Supply - Exclusivity 9/23/2009 JX 0002-A Tr. 6

CX 1247 Intentionally Not Used N/A CX 1248 E-mail from Rick Tatman to Mitchell Rona re: Sigma Pricing 8/6/2009 JX 0002-A CX 1249 

E-mail from Rick Tatman to Susan Welch and Debbie Vinson re: Domestic Sigma Multipliers 5/11/2009 JX 0002-A 

CX 1250 

E-mail from Rick Tatman to Susan Welch re: Sean to Sundra (Sigma Open Items at Tyler Union Anniston) 3/27/2009 JX 0002-A 

CX 1251 

E-mail from Bob Sheehan to Rick Tatman re: ARRA Web cast ODF sideshow 6/25/2009 JX 0002-A 

CX 1252 

E-mail from Mike Keel to Ruffner Page re: Lunch meeting tomorrow 6/8/2008 JX 0002-A 

CX 1253 E-mail from Victor Pais to Ruffner Page re: our mtgs 6/8/2008 JX 0002-A CX 1254 -CX 1255 Intentionally Not Used N/A CX 1256 E-mail from Victor Pais to Ruffner Page re: Follow Up.. 5/11/2008 JX 0002-A CX 1257 

E-mail from Ruffner Page to Victor Pais re: our meeting this week 5/5/2008 JX 0002-A 

CX 1258 

E-mail from Leon McCullough to Ruffner Page re: Final Results 10/7/2008 JX 0002-A 

CX 1259 

E-mail from Nancy Israls to Ruffner Page re: Minutes of 8/15 Meeting, Action Step Spreadsheet, Org Charts w/Attach: 08_15 Conf Call Minutes, 2008StratPlanListByDate.xls, ABIPlbgSalesOrgChart.pdf, PlumbingGroupSalesOrgChart.pdf, TomLeonardOrgChart.pdf 8/25/2008 JX 0002-A 

CX 1260 -CX 1262 Intentionally Not Used N/A CX 1263 

E-mail from Ruffner Page to Tom Leonard re: Corporate Rebate 2/5/2008 JX 0002-A 

CX 1264 -CX 1265 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 53 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1266 Unanimous written consent of the board of directors of DIFRA Board 01/00/2007 JX 0002-A 

CX 1267 

E-mail from Michelle McNamee to Victor Pais re: request for Urgent mtg 4/29/2009 JX 0002-A 

CX 1268 E-mail from Mike Keel to Ruffner Page re: Follow up... 5/12/2008 JX 0002-A CX 1269 E-mail from Ruffner Page to Leon McCullough re: Sigma 3/17/2009 JX 0002-A CX 1270 

E-mail from Leon McCullough to Ruffner Page re: Jerry Webb Letter on Domestic supply options and ARRA projects w/Attach: HDSWW American Made Fittings.pgf 9/26/2009 JX 0002-A Tr. 6

CX 1271 

E-mail from Ruffner Page to Victor Pais re: our meeting --Wednesday/Thursday 5/20/2009 JX 0002-A 

CX 1272 

E-mail from Allan Boscacci to Leon McCullough, Charkoand Ruffner Page re: McWane Mtg. Agenda 1/9/2010 JX 0002-A 

CX 1273 E-mail from Mike Keel to Ruffner Page re: Restraints 5/15/2009 JX 0002-A CX 1274 -CX 1275 Intentionally Not Used N/A CX 1276 

E-mail from Rick Tatman to Thomas Walton re: TvlerUnion 2010 Budget w/Attach: 2012 Budget Narrative Final.doc, Income Stmt Final.xls, 2012 Budget Final.xls 10/29/2009 JX 0002-A 

CX 1277 

E-mail from Rick Tatman to Leon McCullough re: HDS Review July 2009 w/Attach: HDS Review July 2009.ppt 7/13/2009 JX 0002-A 

CX 1278 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: Jan DIFRA 2/19/2009 JX 0002-A Tr. 5

CX 1279 Intentionally Not Used N/A CX 1280 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Cost of excess inventory 8/15/2008 JX 0002-A 

CX 1281 Intentionally Not Used N/A CX 1282 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: DIFRA Data not available 5/23/2008 JX 0002-A 

CX 1283 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: April DIFRA report 6/10/2008 JX 0002-A 

CX 1284 

E-mail from Thomas Walton to Rick Tatman re: Restarting Activity on a Fittings Trade association 2/8/2008 JX 0002-A Tr. 4

CX 1285 Intentionally Not Used N/A 

CX 1286 

REMOVED -- DUPLICATE EXHIBIT E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Sigma & Star 5/13/2008 RX-420 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 54 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1287 

REMOVED -- DUPLICATE EXHIBIT E-mail from Rick Tatman to Leon McCullough re: TylerUnion State if Business Rev2 w/Attach: TylerUnion State of Business Rev2.ppt 9/9/2008 RX-616 JX 0002-A 

CX 1288 

E-mail from Leon McCullough to Ruffner Page re: can we meet next week? 8/21/2009 JX 0002-A 

CX 1289 

E-mail from Ruffner Page to Leon McCullough re: buy american 4/25/2009 JX 0002-A 

CX 1290 Intentionally Not Used N/A CX 1291 

E-mail from Walter Florence to M4-BFA re: From Craig: TYLER/UNION NEW price increase letter 1/14/2008 Tr. 3475:4-10 Tr. 3

CX 1292 Intentionally Not Used N/A CX 1293 

E-mail from Rick Tatman to Wood Herren re: Jan DIFRA reports 2/19/2009 JX 0002-A 

CX 1294 

E-mail from Rick Tatman to Leon McCullough re: McWane Oct DIFRA w/Attach. 11/17/2008 JX 0002-A 

CX 1295 Intentionally Not Used N/A CX 1296 

REMOVED -- DUPLICATE EXHIBIT Independent Accountant's Report on Applying AgreedUpon Procedures by Sellers Al Richardson Holman & West LLP 1/15/2009 RX-127 JX 0002-A 

CX 1297 

Independent Account's Report on Applying Agreed-Upon Procedures 7/13/2008 JX 0002-A 

CX 1298 

Independent Accountant's Report on Applying AgreedUpon Procedures 7/13/2008 JX 0002-A 

CX 1299 

E-mail from Rick Tatman to Bree Holland re: McWane Oct DIFRA w/Attach: McWane Oct 2008 DIFRA.pdf 11/11/2008 JX 0002-A 

CX 1300 

E-mail from Thad G. Long to Bree Holland re: 0608 DIFRA report status? 7/31/2008 JX 0002-A 

CX 1301 

REMOVED -- DUPLICATE EXHIBIT E-mail from Tom Brakefield to Bree Holland, Tatmanand Wood Herren re: DIFRA 11/11/2008 RX-113 JX 0002-A 

CX 1302 Intentionally Not Used N/A 

CX 1303 

E-mail from Margaret Powell to Bree Holland re: McWane DIFRA data w/Attach: DIFRA Initial Data - McWane 2006-April 2008 6/11/2008 JX 0002-A 

CX 1304 

E-mail from Rick Tatman to Bree Holland re: Jan McWane DIFRA Data w/Attach: McWane Jan DIFRA 2/9/2009 JX 0002-A 

CX 1305 

E-mail from Dan McCutcheon to Bree Holland re: DIFRA Report - Dec 08 1/12/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 55 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1306 E-mail from Rick Tatman to Bree Holland re: McWane Dec DIFRA w/Attach: McWane December DIFRA 1/12/2009 JX 0002-A CX 1307 

E-mail from Tom Brakefield to Bree Holland re: Raju to TB2: DIFRA Input Output Format-123108 w/Attach: DIFRA Input Output Format-123108 1/12/2009 JX 0002-A 

CX 1308 

E-mail from Dan McCutcheon to Bree Holland re: DIFRA Report-Nov 08 w/Attach: DIFRA Report 12/12/2008 JX 0002-A 

CX 1309 

E-mail from Rick Tatman to Bree Holland re: McWane Nov DIFRA w/Attach: McWane Nov DIFRA 12/10/2008 JX 0002-A 

CX 1310 

E-mail from Tom Brakefield to Bree Holland re: Raju to TB2: DIFRA Input file-Nov'08 w/Attach: DIFRA Input Output Format-113008 12/5/2008 JX 0002-A 

CX 1311 

E-mail from Dan McCutcheon to Bree Holland re: DIFRA Report-Oct 2008 w/Attach: DIFRA Report 11/13/2008 JX 0002-A 

CX 1312 

E-mail from Tom Brakefield to Bree Holland re: Raju to TB: DIFRA Input Output Format-103108 w/Attach: DIFRA Input Output Format-103108 11/6/2008 JX 0002-A 

CX 1313 

E-mail from Dan McCutcheon to Bree Holland re: DIFRA Report-Sept 08 w/Attach: DIFRA Report 10/13/2008 JX 0002-A 

CX 1314 

E-mail from Rick Tatman to Bree Holland re: McWane Sept DIFRA w/Attach: DIFRA Data-McWane Sept 2008 10/7/2008 JX 0002-A 

CX 1315 

E-mail from Tom Brakefield to Bree Holland re: Raju to TB2: DIFRA Sep'08 input w/Attach: DIFRA Input Output Format-93008 10/3/2008 JX 0002-A 

CX 1316 

E-mail from Tom Brakefield to Bree Holland re: DIFRA input for Aug'08 w/Attach: DIFRA Input Output Format83108 9/26/2008 JX 0002-A 

CX 1317 

E-mail from Dan McCutcheon to Bree Holland re: DIFRA Report-Aug 2008 w/Attach: DIFRA Report 9/15/2008 JX 0002-A 

CX 1318 

E-mail from Tom Brakefield to Bree Holland re: (1st) July,2008 DIFRA for Sigma w/Attach: DIFRA Input Output Format-73108 8/19/2008 JX 0002-A 

CX 1319 

E-mail from Dan McCutcheon to Bree Holland re: DIFRA Report-July 08 w/Attach: DIFRA Report 8/15/2008 JX 0002-A 

CX 1320 

E-mail from Rick Tatman to Margaret Powell re: DIFRA Data - McWane July 2008 w/Attach: DIFRA Data-McWane July 2008 8/14/2008 JX 0002-A 

CX 1321 

E-mail from Dan McCutcheon to Bree Holland re: DIFRA data with May numbers w/Attach: DIFF_06short_0708short_lg_lcan 6/17/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 56 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1322 

E-mail from Tom Brakefield to Bree Holland re: 04/08 DIFRA report approved w/Attach: DIFRA Input Output Format Rev 2 6/11/2008 JX 0002-A 

CX 1323 

E-mail from Margaret Powell to Bree Holland re: DIFRA report - Star Pipe w/Attach: DIFF_06short_0708short_lg_lcan 6/11/2008 JX 0002-A 

CX 1324 E-mail from Bree Holland to Margaret Powell re: DIFRA 6/25/2009 JX 0002-A CX 1325 

E-mail from Bree Holland to Margaret Powell re: DIFRA Input Output Format-043009 5/14/2009 JX 0002-A Tr. 1

CX 1326 

E-mail from Bree Holland to Rick Tatman, Tom Brakefield, Gary Crawford, Dan McCutcheon et al. re: DIFRA Reports w/Attachs: Fittings Reports 7/18/2008 JX 0002-A 

CX 1327 -CX 1328 Intentionally Not Used N/A CX 1329 

E-mail from Wood Herren to Margaret Powell re: Ductile Iron Fittings Research Association - Reporting Monthly Sales of Ductile Iron Fittings w/Attach: DIFRA Input Output Format Rev 2 5/28/2008 JX 0002-A 

CX 1330 

E-mail from Wood Herren to Margaret Powell re: Ductile Iron Fittings Research Association - Reporting Monthly Sales of Ductile Iron Fittings 3/13/2007 JX 0002-A 

CX 1331 

E-mail from Laura Alvey to Margaret Powell re: 2006 McWane DIFRA Report w/Attach: 2006 McWane DIFRA Report 2/16/2007 JX 0002-A Tr. 1

CX 1332 

E-mail from Margaret Powell to Rick Haley re: April DIFRA report 6/10/2008 JX 0002-A 

CX 1333 

E-mail from Rick Haley to Margaret Powell re: Ductile Iron Fittings Research Association w/Attachs: DIFRA 2006 Draft WH 1/31/2007 JX 0002-A Tr. 1

CX 1334 

E-mail from Rick Tatman to Margaret Powell re: April DIFRA report 6/10/2008 JX 0002-A Tr. 5

CX 1335 

E-mail from Rick Tatman to Margaret Powell re: DIFRA Reports 5/21/2008 JX 0002-A Tr. 5

CX 1336 

E-mail from Bree Holland to Margaret Powell re: DIFRA Input Output Format-043009 w/Attach: DIFRA Input Output Format-043009 5/11/2009 JX 0002-A 

CX 1337 

REMOVED -- DUPLICATE EXHIBIT E-mail from Bree Holland to Rick Tatman, Tom Brakefield and Gary Crawford et al. re: DIFRA Report August 2008 w/Attach: Fittings Report August 2008.pdf 10/1/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 57 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1338 

E-mail from Rick Tatman to Margaret Powell and Bree Holland re: DIFRA Data-McWane Aug 2008 w/Attach: DIFRA Data-McWane Aug 2008 9/9/2008 JX 0002-A 

CX 1339 

E-mail from Bree Holland to Rick Tatman, Tom Brakefield, Gary Crawford et al. re: DIFRA December 2008 Reports w/Attach: DIFRA Fittings Report Dec 2008 1/20/2009 JX 0002-A 

CX 1340 

E-mail from Bree Holland to Rick Tatman, Tom Brakefield, Gary Crawford et al. re: DIFRA July Report w/Attach: Fittings Report JUL 2008 8/20/2008 JX 0002-A Tr. 1

CX 1341 

E-mail from Bree Holland to Margaret Powell re: DIFRA Input Output Format-63008 w/Attach: DIFRA Input Output Format-063008 7/18/2008 JX 0002-A 

CX 1342 

E-mail from Bree Holland to Margaret Powell re: DIFRA Data-McWane Jun 2008 w/Attach: DIFRA Data - McWane Jun 2008 7/18/2008 JX 0002-A 

CX 1343 

E-mail from Courtney Courtney Davis to Bree Holland and Margaret Powell re: US Pipe Fittings Shipments - June 2010 w/Attach: DIPRA_Fittings_SRWHL_Report_2010 7/8/2010 JX 0002-A 

CX 1344 

E-mail from Dan McCutcheon to Margaret Powell and Bree Holland re: DIFRA Reports-star June 08 w/Attach: DIFF_06short_0708short) 7/17/2008 JX 0002-A 

CX 1345 

E-mail from Bree Holland to Margaret Powell re: DIFRA Reports w/Attach: DIFRA Reports 7/18/2008 JX 0002-A 

CX 1346 

E-mail from Rick Tatman to Bree Holland and Margaret Powell re: McWane May DIFRA Data w/Attach: DIFRA Data-McWane May 2008 6/13/2008 JX 0002-A 

CX 1347 

E-mail from Tom Brakefield to Margaret Powell re: DIFRA -May,2008 w/Attach: DIFRA Input Output Format Rev 2 6/13/2008 JX 0002-A 

CX 1348 

E-mail from Bree Holland and Rick Tatman, Tom Brakefield, Gary Crawford et al. re: DIFRA November 2008 Report w/Attach: Fittings Report Nov 2008 12/17/2008 JX 0002-A 

CX 1349 

E-mail from Bree Holland to Rick Tatman, Tom Brakefield, Gary Crawford et al. re: DIFRA Reports w/Attach: DIFRA reports May 2008-October 2008 11/18/2008 JX 0002-A 

CX 1350 

E-mail from Bree Holland to Rick Tatman, Tom Brakefield, Gary Crawford et al. re: DIFRA September 2008 w/Attach: Fittings Report September 2008 10/15/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 58 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1351 

E-mail from Bree Holland to Margaret Powell re: DIFRA w/Attach: Fittings Report June 2008 7/31/2008 JX 0002-A 

CX 1352 Intentionally Not Used N/A CX 1353 

E-mail from Rick Tatman to Rick Rick Fairbanks re: TylerUnion vendor proposal for TDG 9/27/2011 JX 0002-A 

CX 1354 -CX 1355 Intentionally Not Used N/A CX 1356 

E-mail from Rick Fairbanks to Steve Barnett et.al re: TylerUnion announcement 9/22/2009 JX 0002-A 

CX 1357 Intentionally Not Used N/A CX 1358 

E-mail from Larry Rybacki to Rick Fairbanks re: Sigma Rebate on Domestic Fittings 9/24/2009 Tr. 3475:4-10 

CX 1359 -CX 1360 Intentionally Not Used N/A CX 1361 2007 TDG Vendor Profile 12/31/2007 JX 0002-A 

Ordered 8/17/2012 Tr. 5

CX 1362 TDG Member Companies 4/13/2012 JX 0002-A CX 1363 

E-mail from Rick Fairbanks to Jerry Jansen re: TDG survey regarding Q1 purchases from Tyler 6/5/2008 JX 0002-A 

CX 1364 

E-mail from Rick Tatman to Rick Fairbanks re: 2010 TDG Vendor Proposal Template Revised 9-25-09.doc w/Attach: 2010 TDG Vendor Proposal Template Revised 9-25-09.doc 9/25/2009 JX 0002-A 

CX 1365 Intentionally Not Used N/A CX 1366 

E-mail from Laura Alvey to Rick Fairbanks re: TylerUnion proposal 2010 w/Attach: 2010 TDG Vendor Proposal Template Aug 31st.pdg 9/1/2009 JX 0002-A 

CX 1367 Intentionally Not Used N/A 

CX 1368 

E-mail from Rick Tatman to Rick Fairbanks re: TylerUnion announcement 9/22/2009 JX 0002-A 

CX 1369 Google Map of Illionis 4/20/2012 JX 0002-A CX 1370 Intentionally Not Used N/A CX 1371 Frazier and Frazier Product listing from Star 

08/18/2009 -

12/30/2011 JX 0002-A 

CX 1372 -CX 1376 Intentionally Not Used N/A 

CX 1377 

E-mail from Michael Walsh to Jim McGivern re: One more topic for the Chicago meeting 5/7/2010 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 59 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1378 

E-mail from Michael Walsh to Harry Bair, Dennis Loughead, Roy et al. re: price increase from Tyler?! 6/17/2010 Tr. 3475:4-10 Tr. 3

CX 1379 

E-mail from Michael Walsh to Victor Pais, Larry Rybacki, Siddharth Bhattacharji et al. re: Sigma Rebate on Domestic Fittings 9/24/2009 Tr. 3475:4-10 

CX 1380 -CX 1383 Intentionally Not Used N/A CX 1384 

E-mail from Ken Stephenson to Michael Walsh, Harry Bair, Dennis Loughead et al. re: price increase from Tyler?! 6/22/2010 Tr. 3475:4-10 

CX 1385 Intentionally Not Used N/A CX 1386 

E-mail from Victor Pais to Stuart Box & M20 re: SDP plan --going down the road... 6/14/2009 Tr. 3475:4-10 

CX 1387 -CX 1394 Intentionally Not Used N/A CX 1395 

E-mail from Al Richardson to Victor Pais, M20, & Gopi Ramanathan re: Response on your Korea sourcing plan --with strategic look @ other options... 5/15/2009 Tr. 3475:4-10 

CX 1396 

E-mail from Michael Walsh to Mike Roy, Susan Van Hook, Kevin Flanagan et al. re: New Sigma Price Increase Letter w/Attach: Sigma Price Increase 6-24-2010.pdf 6/25/2010 Tr. 3475:4-10 Tr. 3

CX 1397 

E-mail from Michael Walsh to Craig Schapiro re: Tyler Price Increase w/Attach: Tyler Increase Letter.pdf 6/25/2010 Tr. 3475:4-10 

CX 1398 -CX 1400 Intentionally Not Used N/A CX 1401 

E-mail from Greg Fox to Al Richardson, Christopher King, Dave Pietryga et al. re: Southeast Multiplier Adjustment Announcement w/Attach: 20080131100925819.pdf 1/31/2008 Tr. 3475:4-10 

CX 1402 

E-mail from Craig Schapiro to M20 re: Star Pipe MULT Increase Letter w/Attach: 20071022121727240.pdf 10/22/2007 Tr. 3475:4-10 

CX 1403 

E-mail from Craig Schapiro to M20 re: Star - Utility Fittings Price List and Multiplier Change-FBE and P401 3/8/2011 Tr. 3475:4-10 

CX 1404 

E-mail from Craig Schapiro to M20 re: Star - Utility Fittings List Price and Multiplier Change 2/25/2011 Tr. 3475:4-10 

CX 1405 Intentionally Not Used N/A CX 1406 

E-mail from Craig Schapiro to SIGALL re: Star - New Fitting Multipliers 6/18/2010 Tr. 3475:4-10 Tr. 3

* Connotes an objection on hearsay grounds.Confidential 60 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1407 

E-mail from Larry Rybacki to Al Richardson & Ion a Shenoy re: IS to above - Customer - Price Increase Letter from Larry.. 6/24/2010 Tr. 3475:4-10 

CX 1408 -CX 1409 Intentionally Not Used N/A CX 1410 

E-mail from Victor Pais to M20 re: HDS-SRT-07-T2 (By Region) w/Attach: RST-07-HDS-22807.xls 3/18/2007 JX 0002-A 

CX 1411 -CX 1412 Intentionally Not Used N/A CX 1413 

E-mail from Victor Pais to M20 re: Price Increase Letter w/Attach: Mid-Year Price Increase Letter-060810.docx 6/8/2010 JX 0002-A Tr. 2

CX 1414 -CX 1416 Intentionally Not Used N/A CX 1417 Chart Sales by Customer: STARPIPE 2010 3/23/2012 JX 0002-A CX 1418 Chart Sales by Customer: STARPIPE 2011 3/23/2012 JX 0002-A CX 1419 Chart Sales by Customer: STARPIPE 2012 3/23/2012 JX 0002-A CX 1420 -CX 1431 Intentionally Not Used N/A CX 1432 Estimate Sheet: TylerUnion 8/26/2011 JX 0002-A CX 1433 Intentionally Not Used N/A CX 1434 

E-mail from Rick Tatman to Mitchell Rona re: Agreement to Sell Sigma Domestic Product w/Attach: Sigma - Domestic Product Agreement 6 4 2009.pdf 6/5/2009 

Tr. 641:17-19 JX 0002-A 

Tr. 6641:

CX 1435 

E-mail from Rick Tatman to Victor Pais re: Notice of Termination Sigma Master Distribution Agreement w/Attach: Notice of Termination Sigma Master Distribution Agreement 2 17 2010.pdf 2/17/2010 JX 0002-A 

CX 1436 

E-mail from Rick Tatman to Mitchell Rona re: TylerUnion Rules of Play - Sigma Master Distribution Agreement (2).doc w/Attach: TylerUnion Rules of Play - Sigma Master Distribution Agreement (2).doc 9/24/2009 Tr. 1568:16-18 Tr. 1

CX 1437 

E-mail from Larry Rybacki to Mitchell Rona, Jim McGivern, & OEM5 re: Hajoca 12/15/2009 JX 0002-A 

CX 1438 

E-mail from Larry Rybacki to M20 re: January 2, 2008 Price Increase w/Attach: January 2 2008 Price Increase Revision.doc 12/21/2007 Tr. 3475:4-10 

CX 1439 E-mail from Victor Pais to M20 re: Our Pricing Strategy... 12/26/2007 JX 0002-A Tr. 1CX 1440 -CX 1444 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 61 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1445 E-mail from Siddharth Bhattacharji to liuguang, Sunil Handa, Sean Salins et al. re: Cor-ten price 2/1/2007 Tr. 3475:4-10 CX 1446 

E-mail from Victor Pais to Jim McGivern, Walter Florence, BFA-M4 et al. re: An update on a couple of open issues... 3/15/2007 Tr. 3475:4-10 

CX 1447 -CX 1448 Intentionally Not Used N/A CX 1449 

E-mail from Mitchell Rona to Rick Tatman re: Request for pricing increase for the fittings we sell Tyler and Union from A-1 Foundry in China 4/10/2007 Tr. 3475:4-10 

CX 1450 

E-mail from SZF to liuguang & Victor Pais re: An appeal about ISO Fittings business -- pricing and shipments... 9/16/2007 Tr. 3475:4-10 

CX 1451 

Letter from David Glidewell to Ron Douglas re: proposal attached 9/8/2009 JX 0002-A 

CX 1452 -CX 1453 Intentionally Not Used N/A CX 1454 

Letter from Larry Rybacki to Valued Customers re: Pricing Review for AWWA MJ Fittings 4/27/2009 JX 0002-A 

Tr. 23585

CX 1455 Google Map of West Virginia and Kentucky 4/27/2012 JX 0002-A CX 1456 

E-mail from Michael Walsh to Tom Brakefield re: New List Price Sheet 2/12/07 1/16/2007 JX 0002-A 

CX 1457 Intentionally Not Used N/A CX 1458 

E-mail from Tom Brakefield to Christopher King & Dave Pietryga re: ARRA Compliance/SDP update 7/18/2009 Tr. 3475:4-10 

CX 1459 Intentionally Not Used N/A CX 1460 

E-mail from Tom Brakefield to Greg Fox, Michael Walsh, Christopher King et al. re: follow up of Domestic material po's with Tyler 2/11/2010 Tr. 3475:4-10 

CX 1461 -CX 1465 Intentionally Not Used N/A CX 1466 

E-mail from Tom Brakefield to Michael Walsh re: Home Depot meetings 1/3/2007 JX 0002-A 

CX 1467 

E-mail from Tom Brakefield to Raju Kakani re: DIFRA report w/Attach: DIFRA 2006 Draft.xls 2/16/2007 JX 0002-A Tr. 1

CX 1468 -CX 1469 Intentionally Not Used N/A 

CX 1470 

E-mail from Mitchell Rona to OEM5 re: Master Distribution Agreement vs. De Minimis (which way to play the game) w/Attach: MDA_worksheet1.xls 9/23/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 62 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1471 

E-mail from Mitchell Rona to Michael Walsh re: need further definition of Tyler death row inmates 9/28/2009 Tr. 1604:11-13 Tr. 1

CX 1472 

E-mail from Mitchell Rona to M20 re: Domestic Fittings Prices for Sigma 2/16/2011 Tr. 3475:4-10 

CX 1473 

Summary of First Meeting to Establish Trade Association for Ductile Water Works Fittings 3/21/2005 JX 0002-A Tr. 1

CX 1474 

Agenda: Second Meeting to Establish Trade Association for Ductile Iron Waterworks & Sewer Fittings 8/29/2005 JX 0002-A 

CX 1475 

Summary of Third Meeting to Establish Trade Association for Ductile Water Works Fittings 11/21/2006 JX 0002-A 

CX 1476 

Summary of Fourth Meeting to Establish Trade Association for Ductile Water Works Fittings 12/12/2006 JX 0002-A 

CX 1477 

E-mail from Rick Tatman to Rick Tatman & Thad G. Long re: DIFRA Input Output Format.xls w/Attach: DIFRA Input Output Format.xls 4/4/2008 JX 0002-A Tr. 4

CX 1478 

E-mail from Rick Tatman to Thad G. Long re: DIFRA Call 10:00am April 25th 4/25/2008 JX 0002-A 

CX 1479 

E-mail from Thad G. Long to Tom Brakefield, Victor Pais, Dan McCutcheon et al. w/Attach: DIFRA Input Output Format Rev 2 xls (3).xls 4/25/2008 JX 0002-A Tr. 1

CX 1480 

E-mail from Wood Herren to Duane Green, Gary Crawford, Tom Brakefield et al. re: Ductile Iron Fittings Research Association w/Attach: 1594_001.pdf 1/15/2007 JX 0002-A Tr. 1

CX 1481 E-mail from Thad G. Long to Tom Brakefield re: DIFRA 7/31/2007 JX 0002-A CX 1482 

E-mail from Thad G. Long to T. Petermann re: Proposed Trade Association Meeting - Ductile Iron Fittings Research Association (DIFRA) 2/22/2008 JX 0002-A 

CX 1483 Intentionally Not Used N/A CX 1484 

E-mail from Thad G. Long to Larry Rybacki, Rick Tatman, Victor Pais et al. re: DIFRA w/Attach: 1528357-1-Articles of Incorporation of Ductile Iron Fittings Research Association.DOC; 1524103-6-Ductile Iron Fittings Research Association (DIFRA) - Bylaws.DOC; 1524103-doc-Ductile Iron Fittings Research Association (DIFRA) -Bylaws.DOC 3/19/2008 JX 0002-A 

CX 1485 

E-mail from Rick Tatman to Thad G. Long re: Draft of certain possible Agenda Items for DIFRA Meeting 3/27/2008 3/20/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 63 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1486 

E-mail from Thad G. Long to Rick Tatman, Gary Crawford, Victor Pais et al. re: DIFRA Meeting in Birmingham for 3/27/08 w/Attach: BHM#1683806-v1-Agenda for DIFRA Meeting 3 27 2008.DOC 3/24/2008 JX 0002-A Tr. 1

CX 1487 -CX 1501 Intentionally Not Used N/A CX 1502 

E-mail from Larry Rybacki to M20 re: Bruce Himes' letter fowarded 4/2/2007 Tr. 3475:4-10 

CX 1503 

E-mail from Victor Pais to Walter Florence & Ronald W. Kuehl re: A Growth Strategy thru Acq in PW sector...w/Attach: SIG-Plant Work-ACQ Strategy-1127.doc 11/27/2007 Tr. 3475:4-10 

CX 1504 Intentionally Not Used N/A CX 1505 E-mail from Victor Pais to M20 re: Star update 7/16/2009 Tr. 1799:16-18 Tr. 1

CX 1506 -CX 1509 Intentionally Not Used N/A 

CX 1510 

E-mail from Mitchell Rona to Craig Schapiro, Dick Williams and Victor Pais re: Domestic multipliers.. 9/23/2009 Tr. 3475:4-10 

CX 1511 -CX 1512 Intentionally Not Used N/A CX 1513 

E-mail from Larry Rybacki to Victor Pais and Greg Fox re: Sigma Rebate on Domestic Fittings 9/24/2009 Tr. 3475:4-10 

CX 1514 E-mail from Harry Bair to Michael Walsh re: HD Chantilly 9/24/2009 Tr. 3475:4-10 CX 1515 

E-mail from Craig Schapiro to Jim Stohr, Kane Connor, Joel Wilmsmeyer et al. re: old material that is in stock labeled Sigma from original purchase from Tyler/Union 9/28/2009 Tr. 3475:4-10 

CX 1516 -CX 1518 Intentionally Not Used N/A CX 1519 

E-mail from Victor Pais to Greg Fox, Tom Brakefield, Victor Pais et al. re: TylerUnion Price Increase 12/29/2009 Tr. 3475:4-10 

CX 1520 Intentionally Not Used N/A 

CX 1521 

E-mail from Craig Schapiro to Mitchell Rona and RM6 re: Tyler Domestic Business 2/23/2010 Tr. 3475:4-10 

CX 1522 

E-mail from Victor Pais to Al Richardson, M20, Jim Stohr et al. re: Tyler -- domestic vs. import 4/9/2010 Tr. 3475:4-10 

CX 1523 Intentionally Not Used N/A CX 1524 

E-mail from Victor Pais to M20 re: Impact of McW's Price Chance w/Attach: FTG-ASP Impact Post-MCW Price Change-091109.xls 9/11/2009 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 64 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1525 - CX 1526 Intentionally Not Used N/A CX 1527 

E-mail from Dave Pietryga to Al Richardson, Christopher King, Greg Fox et al. re: Domestic Comparison w/Attach: Dom Comp.xls 12/18/2009 Tr. 3475:4-10 

CX 1528 

E-mail from Stuart Box to Mitchell Rona and Craig Schapiro re: price increase 12/12/2007 JX 0002-A 

CX 1529 

E-mail from Stuart Box to Mitchell Rona re: ACIPCO reaction to price increase letter from KF3# 12/6/2007 JX 0002-A 

CX 1530 

E-mail from Stuart Box to Craig Schapiro re: from Craig -Domestic pricing structure effective 5/15/09 5/15/2009 Tr. 3475:4-10 

CX 1531 E-mail from Stuart Box to Mitchell Rona re: Leadtime? 10/1/2009 JX 0002-A CX 1532 

E-mail from Stuart Box to Frank Ross and MC Sateesh re: First piece sample 9/28/2009 Tr. 3475:4-10 

CX 1533 

E-mail from Stuart Box to Sreenivasa Rao re: Defective DFB2490 3/25/2010 JX 0002-A 

CX 1534 

E-mail from Frank Ross to Stuart Box re: Budgetary Numbers 6/12/2009 Tr. 3475:4-10 

CX 1535 

E-mail from Stuart Box to Tom Brakefield re: Domestic Fittings - Debary Project 6/24/2009 Tr. 3475:4-10 

CX 1536 

E-mail from Stuart Box to Mitchell Rona and Gopi Ramanathan re: SDP trip report to Pryor OK to visit American foundry 7/4/2009 

Tr. 1531:25-1532:2 Tr. 1

CX 1537 

E-mail from Stuart Box to Jim McGivern, Mitchell Rona and OEM5 re: TylerUnion Rules of Play - Sigma Master Distribution Agreement (2).doc 9/29/2009 JX 0002-A 

CX 1538 

E-mail from Stuart Box to Starla Suttles re: Visit to Union Foundry 11/27/2009 Tr. 3475:4-10 

CX 1539 

E-mail from Stuart Box to Victor Pais re: Need for serious 'SWOT' Review of Cost of Production and Options... 9/6/2007 Tr. 3475:4-10 

CX 1540 

E-mail from Stuart Box to SDP re: follow up on Sales meeting at ALX w/Attach: PRPD commercial analysis with AF and TF 092609 sb2-1.xlsx 9/26/2009 Tr. 3475:4-10 

CX 1541 

E-mail from Greg Fox to Stuart Box re: Update and Q&A info on Master Distribution Agreement...w/Attach: BA-MDABackground Memo-to-SST-092009.doc; BA-MDA- Q & A-toSST-092009.doc; SIGMA-BA-MDA-Customer Letter092209-clean.doc; McWane Announcement Sept 22nd 

2009.pdf 9/22/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 65 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1542 E-mail from Stuart Box to Fields and Craig Schapiro re: Clow fittings w/Attach: 20090313103333038.pdf 3/13/2009 Tr. 3475:4-10 CX 1543 

E-mail from Mitchell Rona to Stuart Box re: Sigma 08 Multiplier Map Ver 051908 w/Attach: Sigma 08 Multipliers Ver 051908.pdf 5/2/2008 JX 0002-A Tr. 4

CX 1544 

E-mail from Mitchell Rona to Stuart Box re: TylerUnion Price Increase w/Attach: MC - Domestic 1-22-10.doc 12/22/2009 JX 0002-A 

CX 1545 

E-mail from Frank Ross to Stuart Box re: Pattern being shipped to PMC (DMB2445) 6/25/2009 Tr. 3475:4-10 

CX 1546 

E-mail from Danny Swalley to Piush Lohia re: USA business w/Attach: Saluda Water Adden 1.pdf; Sales Territory Anlz 3.29.10.xls; Business plan 3.26.10.xls 3/30/2010 JX 0002-A 

Ordered 8/17/2012 

CX 1547 E-mail from Danny Swalley to Jim LeCroy re: Joint Project 9/15/2010 JX 0002-A CX 1548 

E-mail from Danny Swalley to Piush Lohia and Vikash Agrawal re: MJB2204 3/13/2012 JX 0002-A 

CX 1549 

E-mail from Danny Swalley to Vikash Agrawal re: Fittings w/Attach: Urgent Fittings 2.7.12.xlsx 2/7/2012 JX 0002-A 

Ordered 8/17/2012 

CX 1550 

E-mail from Danny Swalley to Piush Lohia and Vikash Agrawal re: Napac Order 5/16/2011 JX 0002-A 

CX 1551 

E-mail from Danny Swalley to Piush Lohia and Vikash Agrawal re: Okay maybe this will sweeten the deal 4/11/2011 JX 0002-A 

CX 1552 

E-mail from Danny Swalley to Joyce Yager re: Multiplier/Price list 3/18/2011 JX 0002-A 

CX 1553 Spreadsheet: Quarterly Income Statements 07/00/2009 JX 0002-A 

Ordered 8/17/2012 

CX 1554 

E-mail from Danny Swalley to Matthew Vander Ark re: Fitting Weights w/Attach: EUSA Fittings - Code & WTS.XLS 3/5/2012 JX 0002-A 

CX 1555 

E-mail from Danny Swalley to Jim LeCroy and Jamey Reynolds re: Joint Project 5/27/2010 JX 0002-A 

CX 1556 Intentionally Not Used N/A CX 1557 

E-mail from Elizabeth Stark to Danny Swalley re: Helpful information for Electrosteel India Trip w/Attach: Complying with the Made In the USA Standard.doc; Electrosteel Recommendation 052810.doc 6/1/2010 JX 0002-A 

CX 1558 Electrosteel Catalog: Compact MJ Fittings 00/00/2012 JX 0002-A CX 1559 Electrosteel Catalog: Flanged Fittings 00/00/2012 JX 0002-A CX 1560 

E-mail from Rick Tatman to Leon McCullough re: Your Vmail on Consolidated 3/28/2008 JX 0002-A Tr. 4

* Connotes an objection on hearsay grounds.Confidential 66 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1561 E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: April DIFRA report 6/11/2008 JX 0002-A CX 1562 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Revised DIFRA Numbers & 2nd Quarter Executive Report w/Attach: 2Q 2008 Fittings Dashboard.ppt, 2Q 2008 TylerUnion Executive Summary.doc, Revised DIFRA Output Analysis.xls 7/28/2008 JX 0002-A Tr. 5

CX 1563 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: List Price Change LP 5091 5/1/2009 JX 0002-A 

CX 1564 

E-mail from Rick Tatman to Thomas Walton and Leon McCullough re: TylerUnion Quarterly Report w/Attach: 1Q 2008 Fittings Dashboard.ppt, 1Q 2008 TylerUnion Executive Summary.doc 4/16/2008 JX 0002-A 

Tr. 453905402

CX 1565 

E-mail from Rick Tatman to Leon McCullough, Thomas Walton re: Advantages and Disadvantages of selling Disa items to Sigma 1/30/2008 JX 0002-A Tr. 4

CX 1566 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Star following Tyler Maps 1/31/2008 JX 0002-A Tr. 2

CX 1567 Intentionally Not Used N/A CX 1568 

REMOVED -- DUPLICATE EXHIBIT E-mail from Rick Tatman to Leon McCullough re: American Price Increase Letter May 2008.doc w/Attach: American Price Increase Letter May 2008.doc 5/13/2008 CX 0367 JX 0002-A 

CX 1569 

E-mail from John Springer to Thomas Walton, Rick Tatman, Leon McCullough et al. re: 2008 vs. 2007 -Waterworks w/Attach: variance analysis.xls, Variance Analysis 8/13/2008 JX 0002-A Tr. 8

CX 1570 

E-mail from Victor Pais to Rick Tatman re: Your offer for 3"-8" DIWF Iron TylerUnion 2/1/2008 JX 0002-A Tr. 4

CX 1571 

E-mail from Rick Tatman to Leon McCullough re: RST Response on Two things 2/27/2008 JX 0002-A Tr. 4

CX 1572 

E-mail from Rick Tatman to Jerry Jansen re: Market Pricing on Restraints 2/14/2009 JX 0002-A 

CX 1573 

E-mail from Rick Tatman to Vince Napoli, Susan Welch and Kent Brown re: Sigma Response - TylerUnion New List and Multipliers 4/29/2009 JX 0002-A 

CX 1574 

E-mail from John Combs to Rick Tatman re: Emailing: SIGMAPriceList w/Attach: SIGMAPri.pdf 3/25/2009 JX 0002-A 

CX 1575 E-mail from Rick Tatman to Mitchell Rona re: Glands 4/4/2008 JX 0002-A Tr. 4

* Connotes an objection on hearsay grounds.Confidential 67 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1576 

E-mail from Rick Tatman to Butch J. Doane re: TylerUnion July 14th Price announcement w/Attach: Util Mult MapBlended-7-14-08.pdf, TylerUnion price announcement July 14-FEI.doc, Util Mult Map-Accessories-7-14-08.pdf 6/17/2008 JX 0002-A Tr. 5

CX 1577 

E-mail from Matt Minamyer to Shaun Smith, Ramon Prado and Pete Lisowski re: Special Pricing 5/7/2008 JX 0002-A 

CX 1578 Map: E. J. Prescott Company Locations 5/4/2012 JX 0002-A CX 1579 -CX 1580 Intentionally Not Used N/A CX 1581 Marbry Casting, LTD Invoices by customers 3/29/2012 JX 0002-A CX 1582 Map: Dana Kepner Company Locations 00/00/2012 JX 0002-A CX 1583 Intentionally Not Used N/A CX 1584 Ductile Fitting Sales 2007-2012 00/00/2007 JX 0002-A 

CX 1585 Intentionally Not Used N/A 

CX 1586 

E-mail from Deron_Johnson to Becky Guy re: star/domestic fittings 1/21/2010 JX 0002-A 

CX 1587 

E-mail from Deron_Johnson to Becky Guy re: Domestic Fittings 4/15/2010 JX 0002-A 

CX 1588 Intentionally Not Used N/A CX 1589 

REMOVED -- DUPLICATE EXHIBIT Spreadsheet: Competitive Feedback 00/00/2008 RX-598 JX 0002-A 

CX 1590 

Federal Register/Vol. 75, No. 185: Notice of a Regional Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the City of Lowell, MA 9/24/2010 JX 0002-A 

CX 1591 

Federal Register/Vol. 75, No. 109: Notice of a Regional Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the City of Richland, WA 6/8/2010 JX 0002-A 

CX 1592 

Federal Register/Vol. 75, No. 185: Notice of a Regional Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the City of Lewiston, ME and the Auburn, Maine Water District 9/24/2010 JX 0002-A Tr. 4

CX 1593 Intentionally Not Used N/A CX 1594 Weekly Activity Report: Region 20 3/13/2010 JX 0002-A CX 1595 -CX 1598 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 68 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1599 

E-mail from Rick Tatman to Jerry Jansen re: Domestic stance 9/1/2009 JX 0002-A 

CX 1600 

E-mail from Dan Todd to Laura Alvey and Jerry Jansen re: Domestic Report w/Attach: Contact Sheet for Star Domestic.xls 11/16/2009 JX 0002-A 

CX 1601 

E-mail from Greg Adams to Jerry Jansen re: Domestic stance for Greg Adams w/Attach: Domestic Conversation with Customers.xls 11/17/2009 JX 0002-A 

CX 1602 

E-mail from Marla Drake to Jerry Jansen and Laura Alvey re: Domestic Conversation with Customers w/Attach: Domestic Conversation with Customers.xls 11/4/2009 JX 0002-A 

CX 1603 

E-mail from Jerry Jansen to Eddie Gibbs re: Missed appointment 7/8/2010 JX 0002-A 

CX 1604 

E-mail from Jerry Jansen to Scott Frank re: Peru, IN Grisom Air Force Base 5/20/2009 JX 0002-A 

CX 1605 

E-mail from Jerry Jansen to Glenn Miller re: Weekly Highlight 3-19-2010 3/21/2010 JX 0002-A 

CX 1606 

E-mail from Rick Tatman to Laura Alvey, Debbie Vinson, Susan Welch et al. re: Announcement Letter and Q&A document for today's Conference Call Tuesday, 9-22 @ 10:30 am CST w/Attach: McWane Announcement Sept 22nd 2009.pdf; Sept 22nd Announcement Q&A.doc 9/22/2009 JX 0002-A Tr. 6

CX 1607 

E-mail from Vince Napoli to Harms re: RMA # MU39758 (42'' Material) 5/6/2011 JX 0002-A 

CX 1608 E-mail from Jennifer Heys to Jerry Jansen re: Hajoca 11/16/2009 JX 0002-A 

CX 1609 E-mail from Jerry Jansen to Roger Wells re: Mt.Land Orem 7/20/2010 JX 0002-A CX 1610 E-mail from Jerry Jansen to Roger Wells re: Mt.Land Orem 7/15/2010 JX 0002-A CX 1611 

E-mail from Vince Napoli to Matthew Gathman re: Star News - September 2010 10/6/2010 JX 0002-A 

CX 1612 

E-mail from Jerry Jansen to PMason@atlanticplumbingsupply.net re: 2011 Tyler Union Program w/Attach: 2011 Stocking Distributor Rebate Program.docx 3/21/2011 JX 0002-A 

CX 1613 

E-mail from Rick Tatman to Leon McCullough re: Sean Kelly 4/13/2012 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 69 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1614 

E-mail from Scott Frank to Jeff Otterstedt and Rick Tatman re: Hajoca on order/shipment hold for Domestic fittings 11/23/2009 JX 0002-A 

CX 1615 

E-mail from Ryan Andersen to Jerry Jansen re: Domestic Stance with Customers w/Attach: Domestic Conversation with Customers.xls 11/16/2009 JX 0002-A 

CX 1616 

E-mail from Jennifer Heys to Jerry Jansen and Laura Alvey re: Star Domestic.xls w/Attach: Star Domestic.xls 11/4/2009 JX 0002-A 

CX 1617 

REMOVED -- DUPLICATE EXHIBIT E-mail from Tom Thagard to Michael Bloom re: Stipulation in McWane, Inc. Litigation 6/22/2012 RX-588 JX 0002-A 

CX 1618 

REPLACED WITH REDACTED VERSION Verizon Wireless Phone Records: Tom Brakefield 7/5/2011 JX 0002-A 

CX 1618-A 

Redacted Excerpts of Verizon Wireless Phone Records: Tom Brakefield Tr. 3483:14-15 

Ordered 9/17/2012 

CX 1619 Verizon Wireless Phone Records: Vince Napoli 00/00/2011 JX 0002-A 

Ordered 12/14/2012 

CX 1620 Verizon Wireless Phone Records: Greg Fox 6/29/2011 JX 0002-A 

Ordered 12/14/2012 

CX 1621 

REPLACED WITH REDACTED VERSION Verizon Wireless Phone Records: Larry Rybacki 7/23/2011 JX 0002-A Tr. 3

CX 1621-A 

Redacted Excerpts of Verizon Wireless Phone Records: Larry Rybacki 

Tr. 3483:16-17; 3605:9; 3624:12 

Ordered 9/17/2012 Tr. 2

CX 1622 Verizon Wireless Phone Records: Leon McCullough 00/00/0000 JX 0002-A 

Ordered 12/14/2012 

CX 1623 Verizon Wireless Phone Records: Siddharth Bhattacharji 00/00/2011 JX 0002-A 

Ordered 12/14/2012 

CX 1624 Verizon Wireless Phone Records: Mitchell Rona 8/10/2011 JX 0002-A CX 1624-A 

Redacted Excerpts of Verizon Wireless Phone Records: Mitchell Rona Tr. 3483:18-19 

Ordered 9/17/2012 

CX 1625 

REPLACED WITH REDACTED VERSION Verizon Wireless Phone Records: Matt Minamyer 5/31/2011 JX 0002-A 

CX 1625-A 

Redacted Excerpts of Verizon Wireless Phone Records: Matt Minamyer Tr. 3483:20-21 

Ordered 9/17/2012 

* Connotes an objection on hearsay grounds.Confidential 70 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1626 

Verizon Wireless Phone Records: Subscriber: 903-941-0902 7/21/2011 JX 0002-A 

CX 1626-A 

Redacted Excerpts of Verizon Wireless Phone Records: Subscriber: 903-941-0902 Tr. 3483:22-23 

Ordered 9/17/2012 

CX 1627 -CX 1647 Intentionally Not Used N/A 

CX 1648 

Independent Accountant's Report on Applying AgreedUpon Procedures for DIFRA 6/13/2008 JX 0002-A 

CX 1649 

E-mail from Thomas Walton to Rick Tatman re: Star Review June 29th Rev A.ppt w/Attach: Star Review June 29th Rev A.ppt 7/2/2009 JX 0002-A 

CX 1650 

E-mail from Leon McCullough to Brenda Netten re: Price Increase DIWF w/Attach: Util Mult Map-BLENDED LP5091.pdf, Util Mult Map-DOMESTIC LP5091 3-12.pdf, Util Mult Map-DOMESTIC LP5091, 14-24.pdf, DIWF NonDomestic Pricing Nov Report.XLS 12/14/2009 JX 0002-A 

CX 1651 

E-mail from Jeff Marcus to BOD re: BOD Call 122209 w/Attach: Board Call 122209.ppt; Board Call 122209.pdf 12/18/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 1652 

E-mail from Leon McCullough to Rick Tatman & Thomas Walton re: Advantages and Disadvantages of selling Disa items to Sigma 1/30/2008 JX 0002-A Tr. 4

CX 1653 

E-mail from Rick Tatman to Thomas Walton re: 5-star.ppt w/Attach: 5-star.ppt 2/9/2009 JX 0002-A Tr. 2

CX 1654 

E-mail from Rick Tatman to Thomas Walton re: FTC Overview Rev 3.ppt w/Attach: FTC Overview Rev 3.ppt 2/24/2010 JX 0002-A 

CX 1655 

Tyler Pipe/Union Foundry Utilities Blended Fittings Multiplier Map 7/11/2007 JX 0002-A 

CX 1656 

E-mail from Rick Tatman to Butch J. Doane re: TylerUnion Price Announcement w/Attach: MC - Non Domestic 1-22-10.doc; MC - Domestic 1-22-10.doc 12/21/2009 JX 0002-A Tr. 8

CX 1657 

E-mail from Rick Tatman to Glenn Fielding re: TylerUnion Price Announcement w/Attach: MC - Non Domestic 1-22-10; MC - Domestic 1-22-10.doc 12/21/2009 JX 0002-A 

CX 1658 

E-mail from Laura Alvey to Bryan V. Mokry, Kevin M Murphy, Bill Thees, et al., re: TylerUnion Price Announcement w/Attach: MC - Non Domestic 1-22-10.doc; MC - Domestic 1-22-10.doc 12/21/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 71 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1659 

E-mail from Laura Alvey to Jerry Webb, Steve Benton, Joe Mack, et al. re: TylerUnion Price Announcement w/Attach: MC - Non Domestic 1-22-10.doc; MC - Domestic 1-22-10.doc 12/21/2009 JX 0002-A 

CX 1660 

E-mail from Roger Wells to Kimberly Burgoyne re: TylerUnion Price Announcement 1/5/2010 JX 0002-A 

CX 1661 

Memo from Jerry Jansen to Waterworks Sales Team re: Price Increase 12/21/2009 JX 0002-A 

CX 1662 

E-mail from Rick Tatman to Mitchell Rona re: TylerUnion Price Increase w/Attach: MC - Domestic 1-22-10.doc 12/21/2009 JX 0002-A Tr. 1

CX 1663 

E-mail from Rick Tatman to Thomas Walton re: TylerUnion Price Announcement w/Attach: MC - Non Domestic 1-22-10.doc; MC - Domestic 1-22-10.doc; Util Mult Map-NON DOMESTIC 1-22-10.pdf; Util Mult Map-Domestic 3-12 EFF 1-22-10.pdf; Util Mult Map - Domestic 14-24 EFF 1-22-10.pdf 12/21/2009 JX 0002-A 

CX 1664 Spreadsheet: Proposed Multipliers 1/18/2008 JX 0002-A 

Tr. 3542854335841

CX 1665 

E-mail from Laura Alvey to Rick Tatman re: Multiplier Maps -

Effective 1-22-09 w/Attach: Util Mult Map-Non Domestic 1-22-10.pdf; Util Mult Map-Domestic 3-12 EFF 1-22-10.pdf; Util Mult Map-DOMESTIC 14-24 EFF 1-22-10.pdf 12/21/2009 JX 0002-A 

CX 1666 

E-mail from Susan Welch to Glenn Fielding re: 2008 w/Attach: Util Mult Map-Domestic-7-14-08.pdf; Util Mult Map-Accessories-7-14-08.pdf; Util Mult Map-Blended-7-14-08 10/12/2010 JX 0002-A 

CX 1667 

E-mail from Victor Pais to liuguang re: our lunch mtg today w/Attach: BOD-Update-GL-091409.doc 9/15/2009 Tr. 3475:4-10 

CX 1668 

E-mail from Star Pipe Products to Outside Sales re: New Multipliers - Star Pipe Products 6/27/2008 JX 0002-A 

CX 1669 

Letter from Jerry Jansen to Valued Customers re: New Price List effective May 1, 2009 4/13/2009 JX 0002-A 

CX 1670 

REMOVED -- DUPLICATE EXHIBIT Letter from Jerry Jansen to Valued Customers re: Increased Pricing effective November 5, 2007 10/5/2007 RX-401 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 72 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1671 

REMOVED -- DUPLICATE EXHIBIT Letter from Jerry Jansen to Tyler/Union Utility Customers in FL re: Pricing Multiplier Adjustment Effective February 18, 2008 1/23/2008 RX-609 JX 0002-A 

CX 1672 

Letter from Jerry Jansen to Tyler/Union Utility Customers in PA re: Pricing Multiplier Adjustment Effective February 18, 2008 1/18/2008 JX 0002-A 

CX 1673 

REMOVED -- DUPLICATE EXHIBIT Letter from Jerry Jansen to Tyler/Union Utility Customers in IL re: Pricing Multiplier Adjustment Effective February 18, 2008 1/18/2008 RX-608 JX 0002-A 

CX 1674 

E-mail from Rick Tatman to Leon McCullough & Thomas Walton re: Star & Domestic w/Attach: Star AWWA Banner.jpg 6/15/2009 JX 0002-A Tr. 6

CX 1675 

E-mail from Leon McCullough to Mike Vore re: December DIFRA Report w/Attach: DIFRA_2008_12.xls 1/26/2009 JX 0002-A 

CX 1676 

Tyler Pipe/Union Foundry Utilities Blended Fittings Multiplier Map 12/18/2006 JX 0002-A 

CX 1677 Blended Utility Fittings Multiplier Map LP-5072 7/14/2008 JX 0002-A 

CX 1678 Non-Domestic Utility Fittings Multiplier Map LP-5091 5/1/2009 JX 0002-A CX 1679 Non-Domestic Utility Fittings Multiplier Map LP-5091 7/1/2010 JX 0002-A CX 1680 Non-Domestic Utility Fittings Multiplier Map LP2011N 3/14/2011 JX 0002-A CX 1681 Non-Domestic Utility Fittings Multiplier Map LP2011N 2/10/2012 JX 0002-A CX 1682 Spreadsheet: Budget Worksheets 1/9/2009 JX 0002-A CX 1683 

E-mail from Gregory Huffman to Thomas Brock re: Discovery 4/19/2012 JX 0002-A 

CX 1684 

REMOVED -- DUPLICATE EXHIBIT E-mail from Victor Pais to RM6 re: Priuce [sic] increase plan... 4/24/2008 RX-052 JX 0002-A 

CX 1685 

REMOVED -- DUPLICATE EXHIBIT E-mail from Al Richardson to Victor Pais & M20 re: DIFRA Data and Sigma Market Share (SMS) review 6/20/2008 RX-080 JX 0002-A 

CX 1686 

REMOVED -- DUPLICATE EXHIBIT E-mail from Victor Pais to Larry Rybacki re: URGENT --Need to stabilize market pricing w/Attach: Price Increase Letter-112408.doc 11/24/2008 RX-116 JX 0002-A 

CX 1687 

REMOVED -- DUPLICATE EXHIBIT Letter from Larry Rybacki to Valued Sigma Customers re: List Price Increase January 2, 2008/Multiplier Increase November 5, 2007 10/23/2007 RX-015 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 73 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1688 

REMOVED -- DUPLICATE EXHIBIT E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray, et al. re: Fitting Mult. Changes on Hold 5/12/2008 RX-060 JX 0002-A Tr. 2

CX 1689 

REMOVED -- DUPLICATE EXHIBIT E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray, et al. re: McWane/Tyler Multipliers and our Plan 1/22/2008 CX 0752 JX 0002-A 

CX 1690 Map: Groeniger Company Locations 5/3/2012 JX 0002-A CX 1691 

E-mail from Ramon Prado to Matt Minamyer re: South East -

Aug 08 - Division.xls 9/17/2008 JX 0002-A Tr. 3

CX 1692 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 02/29/08 3/6/2008 JX 0002-A Tr. 3

CX 1693 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 06/27/08 6/30/2008 JX 0002-A Tr. 3

CX 1694 E-mail from Chris Antos to Shaun Smith re: BPU Pricing 9/4/2008 JX 0002-A Tr. 3CX 1695 

E-mail from Shaun Smith to Mark Mcintire, Tomas Carlin, Matt Minamyer et. al. re: Weekly Report 8/18/2008 JX 0002-A Tr. 3

CX 1696 E-mail from Shaun Smith to Matt Minamyer re: A.R.4.18.08 4/21/2008 JX 0002-A Tr. 3

CX 1697 

E-mail from Matt Minamyer to Shaun Smith and Mark Mcintire re: HD Omaha 9/10/2008 JX 0002-A Tr. 3

CX 1698 

E-mail from Shaun Smith to Matt Minamyer and Dan McCutcheon re: QUOTE 10707007 10/22/2008 JX 0002-A Tr. 4

CX 1699 

E-mail from Shaun Smith to Matt Minamyer re: A.R.10.24.08 10/28/2008 JX 0002-A Tr. 3

CX 1700 -CX 1701 Intentionally Not Used N/A CX 1702 

E-mail from Rick Tatman to Leon McCullough re: DIWF List Price Change 12/22/2007 JX 0002-A Tr. 3

CX 1703 

E-mail from Rick Tatman to Mitchell Rona re: 3"-8" DIWF from TylerUnion 3/10/2008 JX 0002-A 

CX 1704 -CX 1705 Intentionally Not Used N/A CX 1706 

E-mail from Ramesh Bhutada to Pawan Sharda, McCutcheonand Navin Bhargava re: Star Pipe Market Analysis thru July 08 8/26/2008 JX 0002-A 

Ordered 8/31/2012 

* Connotes an objection on hearsay grounds.Confidential 74 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1707 

E-mail from Pawan Sharda to Ramesh Bhutada, McCutcheonand Navin Bhargava re: Star Pipe Market Share Analysis thru July 08 w/Attach: New Housing Starts Analysis thru Jul 08.xls 8/26/2008 JX 0002-A 

Ordered 8/31/2012 Tr. 2

CX 1708 

E-mail from Dan McCutcheon to Pawan Sharda re: Star Pipe Market Share % Analysis thru Apr 08 7/8/2008 JX 0002-A 

CX 1709 

E-mail to Pawan Sharda from Navin Bhargava and Dan McCutcheon re: Housing Data Summary thru Mar 08 w/Attach: New Housing Starts Analysis thru Dec'07/xls 5/16/2008 JX 0002-A 

Ordered 8/31/2012 

CX 1710 

E-mail from Ramesh Bhutada to Pawan Sharda, Kirthi Jain, Ramesh Bhutada re: DIFRA September 2008 w/Attach: Fittings Report September 2008.pdf, image001.git 10/17/2008 JX 0002-A 

Ordered 8/31/2012 

CX 1711 

E-mail from Pawan Sharda to Ramesh Bhutada, Dan McCutcheon and Navin Bhargava re: Star Pipe Housing Market Share thru Oct 08 w/Attach: New Housing Starts Analysis thru Oct 08.xls 11/30/2008 JX 0002-A 

Ordered 8/31/2012 Tr. 2

CX 1712 

E-mail from Pawan Sharda to Dan McCutcheon re: Star Pipe Market Share % Analysis thru Apr 08 w/Attach: New Housing Starts Analysis thru Apr 08.xls 7/8/2008 JX 0002-A 

Ordered 8/31/2012 Tr. 2

CX 1713 Intentionally Not Used N/A 

CX 1714 

E-mail from Pawan Sharda to Kirthi Jain re: DIFRA subject to data from Manoj R w/Attach: DIFRA analysis.xlsx 4/13/2011 JX 0002-A 

Ordered 8/31/2012 

CX 1715 

E-mail from Pawan Sharda to Kirthi Jain re: Feb 2011 -Domestic Orders Trend.xlsx w/Attach: Feb 2011 - Domestic Orders Trend.xlsx 3/18/2011 JX 0002-A 

Ordered 8/31/2012 

CX 1716 

E-mail from Kirthi Jain to Dan McCutcheon, BhutadaRand Rishi Bhutada re: DIWF Market Share Estimates and Projections w/Attach: Housing Market Share.xls 5/20/2010 JX 0002-A 

Ordered 8/31/2012 

CX 1717 

E-mail from Pawan Sharda to Kirthi Jain re: Yr 2010 -Housing Market & Star Pipe Market Share Analysis w/Attach: Yr2010 Housing Market data.xlsx 1/24/2011 JX 0002-A 

Ordered 8/31/2012 

CX 1718 -CX 1721 Intentionally Not Used N/A CX 1722 

E-mail from Pawan Sharda to Kirthi Jain re: Domestic Order Trend w/Attach: Book3.xlsx 4/13/2011 JX 0002-A 

Ordered 8/31/2012 

CX 1723 -CX 1725 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 75 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1726 

E-mail from Greg Fox to Al Richardson re: HD in Arkansas pricing form Tyler 3/6/2008 JX 0002-A Tr. 3

CX 1727 -CX 1728 Intentionally Not Used N/A 

CX 1729 

E-mail from Stuart Box to Song Xinyang re: Need your opinion privately 5/31/2009 Tr. 3475:4-10 

CX 1730 Intentionally Not Used N/A CX 1731 

E-mail from Victor Pais to SIGALL re: Year in review...with a Look ahead and a modest year end sharing plan... 12/23/2009 Tr. 3475:4-10 

CX 1732 -CX 1733 Intentionally Not Used N/A CX 1734 

E-mail from Greg Fox to Greg Daniels, Kevin Stine, Debbie Baker et al. re: TylerUnion Price Increase w/Attach: TylerUnionAnnouncementMay72008.pdf 5/8/2008 Tr. 3475:4-10 

CX 1735 Intentionally Not Used N/A CX 1736 

E-mail from Michael Walsh to Jim McGivern re: Sigma price increase...story has changed 7/23/2010 Tr. 3475:4-10 

CX 1737 

E-mail from Jim McGivern to Victor Pais and M20 re: Price Increase Letter 6/7/2010 Tr. 3475:4-10 

CX 1738 

E-mail from Craig Schapiro to M20 re: Star News - June 2010 6/1/2010 Tr. 3475:4-10 

CX 1739 

E-mail from Vinayak Bhandary to Craig Schapiro, Sean Salins, Victor Pais et.al re: TylerUnion service issues w/Attach: TYLER Receipts.xls 2/18/2010 Tr. 3475:4-10 

CX 1740 Intentionally Not Used N/A CX 1741 

E-mail from Tom Brakefield to tross@bradleyarant.com re: DIFRA billing for Sigma corp & Association billing 1/31/2007 Tr. 3475:4-10 

CX 1742 Intentionally Not Used N/A CX 1743 

E-mail from Billie Sue Atkinson to Tom Morton re: BSA to USP: Lacking SegmentILacking RingIPulling Head Price Update - Effective March w/Attach: POGRONCURRENCY.pdf, USPLSpricingMarch1.pdf 1/30/2008 Tr. 3475:4-10 

CX 1744 

Letter from Victor Pais to BOD Team re: A Management update 1/7/2009 Tr. 2144:12-14 

Tr. 22144

CX 1745 

E-mail from Jeff Marcus to M4 re: SIG Mega Plan Sent to Ares w/Attach: MEGA PLAN-COVER LETTER to BANK PRESENTATION-080409.doc, ARES GROUP 080709.ppt 8/7/2009 JX 0002-A 

Ordered 11/8/2012 

* Connotes an objection on hearsay grounds.Confidential 76 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1746 E-mail from Michael Walsh to Ken Stephenson re: Rates 8/17/2010 Tr. 3475:4-10 CX 1747 

E-mail from Raju Kakani to M5, RM6, Craig Schapiro et al. re: DomesticSales-2010-Data w/Attach: DomesticSales2010-Data.xls 1/5/2011 Tr. 3475:4-10 

CX 1748 

Sigma Consolidated Financial Statements and Supplementary Information 12/31/10 and 2009 12/31/2010 JX 0002-A 

Ordered 8/17/2012 

CX 1749 

Sigma Consolidated Financial Statements and Supplementary Information 12/31/09 and 2008 12/31/2009 

Tr. 2205:25-2206:2 

Ordered 8/17/2012 

Tr. 22210

CX 1750 Intentionally Not Used N/A CX 1751 

E-mail from Dave Pietryga to Christopher King, Richardson and RM6 re: Price Increase Letter 5/11/2009 Tr. 3475:4-10 

CX 1752 Intentionally Not Used N/A CX 1753 

E-mail from Craig Schapiro to SST-ALL re: yet another PL2011 update 3/9/2011 Tr. 3475:4-10 

CX 1754 

E-mail from Craig Schapiro to Dana Wax, Stohrand Scott Marlow re: our new DOM purchase pricing.. 3/9/2011 Tr. 3475:4-10 

CX 1755 Intentionally Not Used N/A CX 1756 

E-mail from Michael Walsh to Greg Fox, Christopher King, Dave Pietryga et al. re: more info on Larry VM from yesterday on deal with Tyler 9/18/2009 Tr. 3475:4-10 

CX 1757 Intentionally Not Used N/A CX 1758 

E-mail from Michael Walsh to Jim McGivern, Al Richardson and Larry Rybacki re: Price Increase 7/6/2010 Tr. 3475:4-10 

CX 1759 Intentionally Not Used N/A 

CX 1760 

E-mail to Michael Walsh to Mike Roy, Susan Van Hook, James Funck et al. re: Couple of points of clarification on Domestic Fittings 12/2/2010 Tr. 3475:4-10 

CX 1761 

E-mail from Michael Walsh to Ken Stephenson and Craig Schapiro re: Tyler 12/1/2010 Tr. 3475:4-10 

CX 1762 -CX 1763 Intentionally Not Used N/A CX 1764 

E-mail from Craig Schapiro to SIGALL re: important note regarding D- items 10/9/2009 Tr. 3475:4-10 

CX 1765 Intentionally Not Used N/A CX 1766 E-mail from Victor Pais to M20 re: Sigma's BA plan 9/8/2009 Tr. 3475:4-10 CX 1767 

E-mail from Victor Pais to Michael Walsh and M20 re: Domestic Fittings 8/11/2009 Tr. 3475:4-10 

CX 1768 -CX 1769 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 77 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1770 

E-mail from Al Richardson to Michael Walsh re: Tyler price increase policy 1/6/2010 Tr. 3475:4-10 

CX 1771 

E-mail from Al Richardson to Jim McGivern, Paisand M20 re: clarification on Tyler price charge for Domestic FTGs 1/7/2010 Tr. 3475:4-10 

CX 1772 

E-mail from Victor Pais to Al Richardson and M20 re: clarification on Tyler price change for Domestic FTGs 1/7/2010 Tr. 3475:4-10 

CX 1773 

E-mail from Craig Schapiro to Steve McDonald re: Conference call on BA & DA options 5/15/2009 Tr. 3475:4-10 

CX 1774 

E-mail from Greg Fox to Larry Rybacki, Paisand Siddharth Bhattacharji re: AWWA Sales Meeting Topics 6/12/2009 Tr. 3475:4-10 

CX 1775 Intentionally Not Used N/A CX 1776 Metalfit Spreadsheet: Sales 2007 00/00/2007 JX 0002-A 

Ordered 8/17/2012 

CX 1777 Spreadsheet: Sales Information by Customer - 2007 00/00/2007 JX 0002-A 

Ordered 8/17/2012 

CX 1778 

E-mail from Metalfit1@aol.com to Jeanine Balbach re: Addl. Sales File w/Attach: FTC Subpoena Documents.ods 4/3/2012 JX 0002-A 

CX 1779 -CX 1783 Intentionally Not Used N/A 

CX 1784 

Memorandum from James Hanlon and Cynthia Dougherty to Water Management Division Directors Regions 1 - X re: Implementation of Buy American provisions of P.L. 111-5, the "American Recovery and Reinvestment Act of 2009" 4/26/2009 JX 0002-A 

CX 1785 Intentionally Not Used N/A CX 1786 

Federal Register/Vol. 74, No. 77: Rules and Regulations Office of Management and Budget Requirements for implementing Sections 1512, 1605and 1606 of the ARRA 4/23/2009 JX 0002-A 

CX 1787 -CX 1790 Intentionally Not Used N/A CX 1791 

REMOVED -- DUPLICATE EXHIBIT Federal Register/Vol. 74, No. 152: EPA Notice of Revised Nationwide Waiver of Section 1605 of ARRA 8/10/2009 RX-195 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 78 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1792 

REMOVED -- DUPLICATE EXHIBIT Letter from Mark Meyer to Lisa Perez Gwen Jackson re: Request for Determination that Iron Pipe Fittings Manufactured by Metalfit, Inc. Are Not Subject to ARRA "Buy American" Provisions, Pursuant to Section 1605(d) or Section 1605(b)(1) of ARRA 6/29/2009 RX-180 JX 0002-A 

CX 1793 -CX 1799 Intentionally Not Used N/A CX 1800 

E-mail from Rick Tatman to Leon McCullough & Thomas Walton re: Hajoca on hold 11/23/2009 JX 0002-A Tr. 7

CX 1801 E-mail from Mitchell Rona to Rick Tatman re: Hajoca 12/15/2009 JX 0002-A Tr. 1

CX 1801-A 

Spreadsheet: Domestic DIPF Profitability based on Star Pipe having its own Foundry 03/00/2012 JX 0002-A 

Ordered 8/31/2012 Tr. 2

CX 1802 E-mail from Scott Frank to Rick Tatman re: Hajoca 12/15/2009 JX 0002-A Tr. 7CX 1803 

E-mail from Rick Tatman to Roy Pitts and Jerry Jansen re: Hajoca 2009 Tyler Utility Rebates 2/4/2010 

CX 0026 

(HAJ000045) JX 0002-A Tr. 7

CX 1804 Intentionally Not Used N/A CX 1805 

E-mail from Mitchell Rona to OEM5 re: MR to All Re:Tyler Offer w/Attach: Sigma - Domestic Product Agreement 7 29 2009.pdf 7/30/2009 Tr. 3475:4-10 

CX 1806 

E-mail from Mitchell Rona to OEM5 re: LOI for Master Distributorship w/Attach: Sigma - Domestic Product Agreement 8 24 2009.pdf 8/24/2009 JX 0002-A Tr. 1

CX 1807 -CX 1809 Intentionally Not Used N/A CX 1810 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 10/26/07 11/6/2007 JX 0002-A 

CX 1811 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 01/11/08 1/17/2008 JX 0002-A 

CX 1812 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 01/25/08 1/29/2008 JX 0002-A 

CX 1813 

E-mail from Matt Minamyer to Ramon Prado re: Weekly Activity Report for Week Ending 03/14/08 3/19/2008 JX 0002-A 

CX 1814 -CX 1816 Intentionally Not Used N/A CX 1817 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 05/09/08 5/22/2008 JX 0002-A 

CX 1818 

E-mail from Matt Minamyer to Ramon Prado re: Weekly Activity Report for Week Ending 08/08/08 8/15/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 79 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1819 

E-mail from Matt Minamyer to Ramon Prado re: Weekly Activity Report for Week Ending 08/15/08 8/25/2008 JX 0002-A 

CX 1820 -CX 1821 Intentionally Not Used N/A CX 1822 

E-mail from Ramon Prado to Matt Minamyer re: Weekly Activity Report for Week Ending 01/23/00 1/29/2009 JX 0002-A 

CX 1823 Intentionally Not Used N/A CX 1824 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 06/19/09 w/Attach Resume2009.doc 6/23/2009 JX 0002-A 

CX 1825 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 07/10/09 7/17/2009 JX 0002-A 

CX 1826 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 07/17/09 7/20/2009 JX 0002-A 

CX 1827 Intentionally Not Used N/A CX 1828 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 08/14/09 8/20/2009 JX 0002-A 

CX 1829 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 09/11/09 9/15/2009 JX 0002-A 

CX 1830 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 9/18/09 9/22/2009 JX 0002-A 

CX 1831 

E-mail from Dan McCutcheon to Ramon Prado re: Weekly Activity Report for Week Ending 10/2/09 10/7/2009 JX 0002-A 

CX 1832 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 10/09/09 10/14/2009 JX 0002-A 

CX 1833 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 10/16/09 10/19/2009 JX 0002-A 

CX 1834 

E-mail from Ramon Prado to Bud Leider and Dan McCutcheon re: Weekly Activity Report for Week Ending 10/23/09 10/27/2009 JX 0002-A 

CX 1835 Intentionally Not Used N/A 

CX 1836 

E-mail from Bud Leider to Ramon Prado re: Weekly Activity Report for Week Ending 12/11/09 12/21/2009 JX 0002-A 

CX 1837 

E-mail from Ramon Prado to Bud Leider re: Weekly Activity Report for Week Ending 02/12/10 2/19/2010 JX 0002-A 

CX 1838 

E-mail from Bud Leider to Dan McCutcheon re: Weekly Activity Report Bud Leider Week Ending 2.19.2010 2/22/2010 JX 0002-A 

CX 1839 

E-mail from Ramon Prado to Dan McCutcheon re: Weekly Activity Report for Week Ending 07/23/10 7/28/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 80 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1840 

E-mail from Dan McCutcheon to Ramon Prado re: Weekly Activity Report for Week Ending 02/25/11 3/2/2011 JX 0002-A 

CX 1841 Intentionally Not Used N/A 

CX 1842 

E-mail from Larry Rybacki to Victor Pais & OEM5 re: My Response to Customer Letter about BA/MDA 9/8/2009 Tr. 3475:4-10 

CX 1843 

E-mail from Thad G. Long to Rick Tatman, Victor Pais, Tom Brakefield et al., re: Ductile Iron Fittings Research Association w/Attach: DIFRA 2006 Draft.xls 3/19/2008 JX 0002-A Tr. 1

CX 1844 

E-mail from Tom Brakefield to Larry Rybacki re: DIFRA -508 w/Attach: DIFRA Input Output Format Rev 2.xls 6/13/2008 Tr. 3475:4-10 

CX 1845 

E-mail from Tom Brakefield to Victor Pais, Siddharth Bhattacharji, & Larry Rybacki re: 2008 Summary Of Share By YTD Monthly And Projection (STR 04/08) --- w/Attach: DIFRA Input Output Format Rev 2.xls 6/18/2008 Tr. 3475:4-10 

CX 1846 -CX 1847 Intentionally Not Used N/A CX 1848 

E-mail from Victor Pais to Tom Brakefield & Siddharth Bhattacharji re: VP to RK2: DIFRA-SMS Report August 2008 10/1/2008 Tr. 1304:21-22 

Tr. 11304

CX 1849 Intentionally Not Used N/A CX 1850 

E-mail from Victor Pais to Larry Rybacki re: VP to LR: Haaaaalllllllooooo....... 8/28/2008 Tr. 3475:4-10 

CX 1851 

REMOVED -- DUPLICATE EXHIBIT E-mail from Greg Fox to Linda Moen, Greg Daniels, Gloria Lamborne et al. re: Price Increase 6/16/2008 RX-076 Tr. 3475:4-10 

CX 1852 

E-mail from Victor Pais to M11 re: VP to RM6: Our price increase letters to customers w/Attach: Price Increase Letters (123009-CHI.pdf; 123009-ONT.pdf; 123009-ALX.pdf; 123009-HTN.pdf; 123009-CRM.pdf) 12/30/2009 Tr. 1841:3-5 

Tr. 11841

CX 1853 E-mail from Victor Pais to M20 re: VP to AR: McWane 2/16/2010 Tr. 3475:4-10 CX 1854 Intentionally Not Used N/A CX 1855 

E-mail from Larry Rybacki to M20 re: LR to M20- Multiplier Increase Letter for May 19, 2008 w/Attach: Multiplier Increase For 5-19-08.tif 4/24/2008 JX 0002-A 

Tr. 12098

CX 1856 

E-mail from Larry Rybacki to M20 re: LR to M20-Multiplier Increase for May 30, 2008 w/Attach: Multiplier Increase for 5-30-08.tif 4/17/2008 Tr. 3475:4-10 

CX 1857 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 81 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1858 

E-mail from Michael Walsh to Harry Bair, Ken Stephenson, Susan Van Hook et al. re: LR to M20- Multiplier Increase Letter for May 19, 2008 w/Attach: Multiplier Increase For 5-19-08.tif 4/25/2008 Tr. 1964:2-4 

Tr. 121003708

CX 1859 Intentionally Not Used N/A CX 1860 Verizon Subscriber Report 00/00/2007 JX 0002-A CX 1860-A Redacted Excerpts of Verizon Subscriber Report Tr. 3483:24-25 

Ordered 9/17/2012 Tr. 3

CX 1861 -CX 1863 Intentionally Not Used N/A CX 1864 

E-mail from Victor Pais to Walter Florence re: VP to WF: your msg to talk about P2 9/10/2008 Tr. 3475:4-10 

CX 1865 Intentionally Not Used N/A CX 1866 

E-mail from Raju Kakani to Tom Brakefield re: Sigma's Draft DIFRA Input Reporting Instructions w/Attach: DIFRA Input Output Format Rev 2.xls 4/29/2008 Tr. 3475:4-10 

CX 1867 

E-mail from Mitchell Rona to Siddharth Bhattacharji, Jim McGivern, Victor Pais et al. re: sb1 to jmg: your sugg to the Master Distribution Agreement 9/6/2009 Tr. 3475:4-10 

CX 1868 -CX 1869 Intentionally Not Used N/A 

CX 1870 

E-mail from Metalfit1@aol.com to Michael Bloom re: FTC Counsel Subpoena to Metalfit in McWane Litigation 4/22/2012 JX 0002-A 

CX 1871 Intentionally Not Used N/A CX 1872 

E-mail from Vinod Mantri to Ramesh Bhutada, Dan McCutcheon, Virendra Parikh et al. re: Sales & Margin Report - December 2007 w/Attach: Sales & Margin Report -Dec 07.xls 1/2/2008 JX 0002-A 

Ordered 8/31/2012 Tr. 2

CX 1873 Intentionally Not Used N/A CX 1874 

E-mail from Ramon Prado to Matt Minamyer re: Sigma antics 11/4/2008 JX 0002-A 

CX 1875 -CX 1879 Intentionally Not Used N/A CX 1880 Map: Utility Equipment Company Locations 00/00/2012 JX 0002-A 

CX 1881 Intentionally Not Used N/A 

CX 1882 

Open Letter from Jim Keffer, President of EBAA Iron Sales, Inc. 3/27/2009 JX 0002-A 

CX 1883 

E-mail from Rick Tatman to Keffer re: Sigma w/Attach: 01302009.pdf 1/30/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 82 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1884 

E-mail from Rick Tatman to Keffer re: Sigma w/Attach: 01302009113142992.pdf 2/2/2009 JX 0002-A 

CX 1885 E-mail from Bruce Curtis to Jerry Jansen re: Sigma/Tyler 9/4/2009 JX 0002-A CX 1886 

TylerUnion Notice to Valued Customers: Clarification on American Recovery and Reinvestment Act of 2009 4/8/2009 JX 0002-A 

CX 1887 -CX 1893 Intentionally Not Used N/A CX 1894 

Letter from Gary London to Christopher Renner re: 2009 and 2010 Fittings Sales Summary of ACIPCO 9/9/2010 JX 0002-A 

Ordered 8/17/2012 

CX 1895 

Letter from Gary London to Christopher Renner re: 2008 through 1st quarter 2011 Fittings Sales Summary of ACIPCO 4/7/2011 JX 0002-A 

Ordered 8/17/2012 

CX 1896 Intentionally Not Used N/A CX 1897 

E-mail from Scott Summers to ADIP & ASWP Customer Service Dept. et al. re: Fittings Plan w/Attach: Fittings Plan 6-25-06.doc 10/6/2006 JX 0002-A 

CX 1898 

E-mail from David Angell to Chris Robles, Dale Walls et al. re: Fittings 5/26/2009 JX 0002-A 

CX 1899 Intentionally Not Used N/A CX 1900 Managers Conference Call Fittings 5/22/2009 JX 0002-A CX 1901 Intentionally Not Used N/A CX 1902 

E-mail from Starla Suttles to Mike Hays re: Transitional Fitting Plan w/Attach: Fitting Plan.doc 2/22/2011 JX 0002-A 

Ordered 8/17/2012 

CX 1903 -CX 1904 Intentionally Not Used N/A CX 1905 

Sigma Memo: To: ACIPCO, Attn: Mike O'Brien from Victor Pais re: Revised Proposal #6 for Purchase ACIPCO's Inventory of MJ Fittings 5/15/2009 JX 0002-A 

CX 1906 Intentionally Not Used N/A CX 1907 

E-mail from Starla Suttles to Jerry Burns re: Fittings Negotiations with Sigma 3/17/2011 JX 0002-A 

Ordered 8/17/2012 

CX 1908 -CX 1917 Intentionally Not Used N/A CX 1918 

American Recovery and Reinvestment Act of 2009 and What it Means to American [sic] 00/00/2009 JX 0002-A 

CX 1919 

Letter from K. Scott Summers to Whom It May Concern re: American Ductile Iron Pipe Customer Service 11/16/2011 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 83 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1920 -CX 1923 Intentionally Not Used N/A CX 1924 

E-mail from Randy Densmore to Scott Summers re: Randy -

purch ftgs 30-up.xls Price/Cost Comparison w/Attach: Randy - purch ftgs 30-up.xls 9/28/2009 JX 0002-A 

Ordered 8/17/2012 

CX 1925 -CX 1932 Intentionally Not Used N/A CX 1933 

E-mail from John Springer to Leon McCullough, Thomas Walton and Rick Tatman et al. re: Waterworks Financial Statements w/Attach: Waterworks Financial Stmts.xls 5/6/2009 JX 0002-A 

CX 1934 -CX 1935 Intentionally Not Used N/A 

CX 1936 

E-mail from Tom Morton to Gary Crawford, Stephen Gables, & Steve Goodwyn re: Star w/Attach: img928140510-0001.pdf 9/28/2009 JX 0002-A Tr. 2

CX 1937 -CX 1939 Intentionally Not Used N/A CX 1940 Summary Fittings Purchases FY 2006 00/00/2006 JX 0002-A CX 1941 Summary Fittings Purchases FY 2007 00/00/2007 JX 0002-A CX 1942 Summary Fittings Purchases FY 2008 00/00/2008 JX 0002-A CX 1943 Summary Fittings Purchases FY 2009 00/00/2009 JX 0002-A CX 1944 Summary Fittings Purchases FY 2010 00/00/2010 JX 0002-A 

Ordered 8/17/2012 

CX 1945 Fittings Sales FY 2003 - 2010 00/00/2003 JX 0002-A 

Ordered 8/17/2012 

CX 1946 -CX 1947 Intentionally Not Used N/A CX 1948 

E-mail from Shaun Smith to Barry Foster re: Activity Report Week of 10-26-07 10/31/2007 JX 0002-A 

CX 1949 Intentionally Not Used N/A CX 1950 E-mail from Shaun Smith to Matt Minamyer re: A.R.1.25.08 1/29/2008 JX 0002-A CX 1951 -CX 1954 Intentionally Not Used N/A CX 1955 

E-mail from Shaun Smith to Blake Wegener re: AR 3/17 -3/21 3/25/2008 JX 0002-A 

CX 1956 E-mail from Shaun Smith to Matt Minamyer re: A.R.4.4.08 4/8/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 84 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1957 

E-mail from Shaun Smith to Tomas Carlin re: Tomas Carlin A.R. for 4/21 - 4/25/08 4/29/2008 JX 0002-A 

CX 1958 -CX 1959 Intentionally Not Used N/A CX 1960 E-mail from Shaun Smith to Matt Minamyer re: A.R. 8.22.08 8/26/2008 JX 0002-A CX 1961 Intentionally Not Used N/A CX 1962 E-mail from Shaun Smith to Matt Minamyer re: A.R.9.19.08 9/22/2008 JX 0002-A CX 1963 

E-mail from Shaun Smith to Matt Minamyer re: A.R.10.17.08 10/20/2008 JX 0002-A 

CX 1964 Intentionally Not Used N/A 

CX 1965 

E-mail from Matt Minamyer to Ramon Prado re: Sigma Antics 11/4/2008 JX 0002-A 

CX 1966 

E-mail from Shaun Smith to Matt Minamyer re: A.R.11.07.08 11/11/2008 JX 0002-A 

CX 1967 

E-mail from Shaun Smith to Matt Minamyer and Dan McCutcheon re: A.R.5.1.09 5/5/2009 JX 0002-A 

CX 1968 Intentionally Not Used N/A 

CX 1969 E-mail from Chuck Carrigan to Shaun Smith re: act 7.10.9 7/13/2009 JX 0002-A CX 1970 Intentionally Not Used N/A CX 1971 

E-mail from Shaun Smith to Blake Wegener re: Domestic distributors w/Attach: image001.jpg, image001.jpg, image003.jpg, image004.jpg 10/9/2009 JX 0002-A 

Ordered 8/31/2012 

CX 1972 

E-mail from Blake Wegener to Shaun Smith re: Domestic distributors w/Attach: DOM Comitment.xls 10/9/2009 JX 0002-A 

CX 1973 

E-mail from Shaun Smith to Dan McCutcheon re: customers signed up to distribute our Domestic fittings and JR w/Attach: Distributors Domestic - Star or Tyler 10-9-09.xls, image001.jpg, image003.jpg 10/9/2009 JX 0002-A Tr. 2

CX 1974 

E-mail from Blake Wegener to Shaun Smith, Sue Palmer and Susan Schepps re: AR 11/2 - 11/6 11/9/2009 JX 0002-A 

CX 1975 

E-mail from Dan McCutcheon to Shaun Smith re: Domestic Req Rural Pipe & Supply, Jasper, TX, City of Beaumont, Beaumont, Texas 1/8/2010 JX 0002-A 

CX 1976 Intentionally Not Used N/A CX 1977 

E-mail from Michael Berry to Dan McCutcheon re: domestic threats 3/11/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 85 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1978 E-mail from Shaun Smith to Dan McCutcheon and Pam Garey re: MainLine - Chris Antos 3/18/2010 JX 0002-A CX 1979 

E-mail from Shaun Smith to Michael Berry and Dan McCutcheon re: A.R.3.19.10.doc 3/22/2010 JX 0002-A 

CX 1980 

E-mail from Shaun Smith to Michael Berry and Dan McCutcheon re: A.R.3.26.10.doc 3/31/2010 JX 0002-A 

CX 1981 

E-mail from Shaun Smith to Dan McCutcheon re: A.R.6.6.10.doc w/Attach: image001.jpg 8/9/2010 JX 0002-A 

CX 1982 

E-mail from Shaun Smith to Michael Berry and Dan McCutcheon re: A.R.10.1.10.doc 10/6/2010 JX 0002-A 

CX 1983 Weekly Activity Report from Shaun Smith 4/18/2012 JX 0002-A CX 1984 

E-mail from Siddharth Bhattacharji to James P. Smith, Bill Newman, Kit Lunney et al. re: update from san diego convention 6/15/2009 Tr. 3475:4-10 

CX 1985 

E-mail from Siddharth Bhattacharji to Victor Pais and OEM5 re: Review of McW-Sigma Master Distribution Agreement offer 8/3/2009 Tr. 3475:4-10 

CX 1986 

E-mail from Siddharth Bhattacharji to Victor Pais re: here it is - it was tough to edit! w/Attach: rp-personal letter-080509-sb1.doc 8/5/2009 Tr. 1874:20-22 

Tr. 11874

CX 1987 Intentionally Not Used N/A 

CX 1988 

E-mail from Siddharth Bhattacharji to Fred Stevens re: volume rebates for domestic ftgs 9/29/2009 Tr. 3475:4-10 

CX 1989 -CX 1990 Intentionally Not Used N/A CX 1991 

E-mail from Siddharth Bhattacharji to Victor Pais re: my edits on the white paper w/Attach: arra-ba-white-paper020609-sb1.doc 2/6/2009 JX 0002-A 

CX 1992 Intentionally Not Used N/A 

CX 1993 

E-mail from Siddharth Bhattacharji to Stuart Box, Victor Pais and OEM5 re: Two GDMB2445 go to San Diego! 6/8/2009 JX 0002-A Tr. 1

CX 1994 

E-mail from Siddharth Bhattacharji to Sue Love, Tom Brakefield, Victor Pais et al. re: draft petition letter for our customers w/Attach: customer petition.doc 2/4/2009 Tr. 3475:4-10 

CX 1995 Intentionally Not Used N/A CX 1996 

E-mail from Siddharth Bhattacharji to Jim re: monitoring the proposed changes to laws at state level 2/11/2009 Tr. 3475:4-10 

CX 1997 

E-mail from Siddharth Bhattacharji to Victor Pais re: edited BOD letter w/Attach: bod-'sos'-Plan-Review-060509-sb1.doc 6/8/2009 JX 0002-A 

Ordered 8/17/2012 

* Connotes an objection on hearsay grounds.Confidential 86 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 1998 

E-mail from Siddharth Bhattacharji to Walter Florence, Ronald W. Kuehl, Troy Noard et al. re: minutes of BOD mtg held april 14th 2009 w/Attach: sig-boardmtg-041409.doc 4/14/2009 JX 0002-A 

CX 1999 

E-mail from Siddharth Bhattacharji to Gopi Ramanathan re: Tooling cost for SDP w/Attach: Final Tooling - Sigma Board-- Fittings - SDP-sb1072009.xls 7/19/2009 Tr. 3475:4-10 

CX 2000 -CX 2001 Intentionally Not Used N/A CX 2002 

E-mail from Siddharth Bhattacharji to Jim McGivern, Victor Pais, Larry Rybacki et al. re: your sugg to the Master Distribution Agreement 9/5/2009 Tr. 3475:4-10 

CX 2003 

E-mail from Siddharth Bhattacharji to Walter Florence, Troy Noard, Ronald W. Kuehl et al. re: minutes of Board Meeting held 7/15/09 w/Attach: sig-boardmtg-071509.doc 7/15/2009 Tr. 3475:4-10 

CX 2004 Intentionally Not Used N/A CX 2005 

E-mail from Siddharth Bhattacharji to OEM5 re: comments on tyler Master Distribution Agreement w/Attach: tyler MDAsb1 comment090209.doc 9/1/2009 JX 0002-A 

CX 2006 Meeting of the Board of Directors of Sigma 7/15/2009 JX 0002-A 

CX 2007 -CX 2010 Intentionally Not Used N/A CX 2011 

E-mail from Tom Brakefield to Larry Rybacki and Siddharth Bhattacharji re: DIFRA June Report w/Attach: Fittings Report June 2008.pdf 7/31/2008 Tr. 3475:4-10 

CX 2012 -CX 2013 Intentionally Not Used N/A CX 2014 

E-mail from Siddharth Bhattacharji to Victor Pais and Mitchell Rona re: QRR on our alternative DG plans 3/14/2008 Tr. 1649:3-5 Tr. 1

CX 2015 E-mail from Siddharth Bhattacharji to Mitchell Rona re: tyler 3/18/2008 

Tr. 1651:25-1652:2 Tr. 1

CX 2016 -CX 2017 Intentionally Not Used N/A CX 2018 

E-mail from Siddharth Bhattacharji to Victor Pais, Larry Rybacki, Tom Brakefield et al. re: QRR on McW 6/2/2008 Tr. 3475:4-10 

CX 2019 

E-mail from Siddharth Bhattacharji to Sean Salins, Ronaand Victor Pais re: URGENT quote from tyler w/Attach: Sigma Quote.xls 6/11/2008 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 87 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2020 -CX 2021 Intentionally Not Used N/A CX 2022 

E-mail from Siddharth Bhattacharji to Victor Pais re: pl review the draft BOD minutes for 7/30 w/Attach: sigboardmtg-073008-draft.doc 10/5/2008 Tr. 3475:4-10 

CX 2023 Intentionally Not Used N/A CX 2024 

E-mail from Siddharth Bhattacharji to Victor Pais re: yr em on D2H not sent to TB2? 9/17/2008 Tr. 3475:4-10 

CX 2025 

E-mail from Siddharth Bhattacharji to SST-ALL re: introducing a new supplier for our DM ftgs 8/7/2008 Tr. 3475:4-10 

CX 2026 

E-mail from Jeff Marcus to BOD re: SIG FINAL - BOD 102210 & Supplemental w/Attach: BOD 102210.ppt, BOD 102210 - Supplemental Pkg.ppt 10/20/2010 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2027 

E-mail from Ruffner Page to Victor Pais re: our meeting next week 5/25/2007 JX 0002-A 

CX 2028 E-mail from Ruffner Page to Allan Boscacci re: R 6/29/2007 JX 0002-A CX 2029 

E-mail from Ruffner Page to Victor Pais re: Follow up meeting... 8/1/2007 JX 0002-A 

CX 2030 Meeting organized by Ruffner Page re: Victor Pais? 8/13/2007 JX 0002-A CX 2031 E-mail from Ruffner Page to Victor Pais re: Metalfit 8/24/2007 JX 0002-A CX 2032 

E-mail from Ruffner Page to Victor Pais re: mtg 9/13 Thursday mrg 9/6/2007 JX 0002-A 

CX 2033 Intentionally Not Used N/A CX 2034 E-mail from Ruffner Page to Tom Leonard re: Mr. Yin 11/19/2007 JX 0002-A CX 2035 E-mail from Ruffner Page to Tom Leonard re: Mr. Yin 11/18/2007 JX 0002-A CX 2036 

E-mail from Rick Tatman to Ruffner Page re: Ruffner letter regarding A1 Sigma BCH 11 21 2007.doc w/Attach: Ruffner Letter regarding A1 Sigma BCH 11 21 2007.doc 11/22/2007 JX 0002-A 

CX 2037 E-mail from Ruffner Page to Victor Pais re: req for mtg.. 11/28/2007 JX 0002-A Tr. 8CX 2038 Meeting Organized by Ruffner Page re: Victor Pais 12/3/2007 JX 0002-A CX 2039 

E-mail from Victor Pais to Ruffner Page re: Response to your offer 1/6/2008 

Tr. 429:5-7 JX 0002-A Tr. 4

CX 2040 E-mail from Ruffner Page to Victor Pais re: No worries 7/1/2008 Tr. 3475:4-10 

CX 2041 

E-mail from Victor Pais to Ruffner Page and James M. Proctor re: Format for Financial data re: P2-BFA-Format101008.xls 10/10/2008 Tr. 3475:4-10 

CX 2042 

E-mail from James M. Proctor to Walter Florence, Ruffner Page and Victor Pais re: Meeting 11/11/2008 Tr. 3475:4-10 

* Connotes an objection on hearsay grounds.Confidential 88 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2043 

E-mail from Ruffner Page to Victor Pais re: Meeting in Chicago 12/22/08.. 12/14/2008 Tr. 3475:4-10 

CX 2044 

E-mail from Victor Pais to Ruffner Page re: a Outline for our meeting 10/22 to discuss P2 plan w/Attach: P2-Proposal Outline-122208.ppt 12/20/2008 Tr. 3475:4-10 

CX 2045 

E-mail from Craig Schapiro to Mitchell Rona re: See sheet 2 on the excel sheet... w/Attach: domestic_Mult.xls 12/21/2009 Tr. 1596:11-13 Tr. 1

CX 2046 Intentionally Not Used N/A CX 2047 

E-mail from Michelle McNamee to Ruffner Page re: Slides from April 29th GM Review w/Attach: TylerUnion Rick Tatman.ppt, South Plant Kent Brown.ppt, Union Tim Douty.ppt, AB&I Kurt Winter.ppt, Tyler Pipe Tony Orlowski.ppt 5/1/2008 JX 0002-A 

Tr. 446894698

CX 2048 E-mail from Victor Pais to Ruffner Page re: our mtg this wk 5/5/2008 JX 0002-A 

CX 2049 E-mail from Mike Keel to Ruffner Page re: victor 6/4/2008 JX 0002-A CX 2050 E-mail from Victor Pais to Ruffner Page re: our mtgs 6/9/2008 JX 0002-A CX 2051 

E-mail from Ruffner Page to Siddharth Bhattacharji re: my daughter's contact 6/12/2008 JX 0002-A 

CX 2052 E-mail from Daniel Pryor to Ruffner Page re: [no subject] 6/21/2008 JX 0002-A CX 2053 

E-mail from Victor Pais to Ruffner Page re: Response to your interest in ISO Fittings and Summary of Global opportunities... 7/7/2008 JX 0002-A 

CX 2054 Intentionally Not Used N/A CX 2055 

E-mail from Victor Pais to Ruffner Page re: A prelude to our meeting... 8/12/2008 JX 0002-A 

CX 2056 

E-mail from Ruffner Page to Leon McCullough re: Contribution to MHP Hospice Serenity House Capital Campaign 12/24/2008 JX 0002-A 

CX 2057 

Letter from Ruffner Page to McWane employees and friends 1/4/2012 JX 0002-A 

CX 2058 

E-mail from Victor Pais to Ruffner Page re: a few thoughts to follow up your 'P2' Response... 1/26/2009 JX 0002-A 

CX 2059 

E-mail from Victor Pais to Ruffner Page re: Your lead of the article on Stimulus in India 3/14/2009 JX 0002-A 

CX 2060 E-mail from Victor Pais to Ruffner Page re: NYC meeting... 3/15/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 89 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2061 E-mail from Victor Pais to Ruffner Page re: lunch tomorrow 3/16/2009 JX 0002-A CX 2062 

E-mail from Victor Pais to Ruffner Page re: Follow up of our discussions...a Strategic Global Investment (SGI) Plan 3/24/2009 JX 0002-A 

CX 2063 E-mail from Ruffner Page to Charlie Nowlin re: India JV 5/30/2009 JX 0002-A 

CX 2064 

E-mail from Victor Pais to Ruffner Page re: Hope you are doing well...when can we talk? 9/30/2009 JX 0002-A 

CX 2065 

E-mail from Mike Keel to Ruffner Page re: A few personal thoughts ahead of our meeting tomorrow... 8/24/2009 JX 0002-A 

CX 2066 

E-mail from Ginger Canterbury to Ruffner Page re: [no subject] 6/12/2008 JX 0002-A 

CX 2067 

E-mail from Leon McCullough to Ruffner Page re: Sigma PO received for Disa items w/Attach: Copy of Tyler purchase - Sigma Quote.xls 6/18/2008 JX 0002-A 

CX 2068 

E-mail from Ruffner Page to Leon McCullough re: Initial DIFRA Output reports 6/18/2008 JX 0002-A Tr. 9

CX 2069 

E-mail from Ruffner Page to Victor Pais re: your plans to meet Frontenac in Chicago 6/18/2008 JX 0002-A 

CX 2070 

E-mail from Ruffner Page to Tom Leonard re: BCH patterns & tooling 7/4/2008 JX 0002-A 

CX 2071 

E-mail from Victor Pais to Ruffner Page re: call Tuesday mrg 7/7/2008 JX 0002-A 

CX 2072 E-mail from Mike Keel to Ruffner Page re: Abu Dhabi 7/14/2008 JX 0002-A 

CX 2073 

E-mail from Victor Pais to Ruffner Page re: Wall Street Journal today pages A2 7/29/2008 JX 0002-A 

CX 2074 Intentionally Not Used N/A CX 2075 

E-mail from Victor Pais to Ruffner Page re: Request for a meeting... 8/5/2008 JX 0002-A 

CX 2076 

E-mail from Victor Pais to Ruffner Page re: our meetingsnext week... 8/6/2008 JX 0002-A 

CX 2077 

E-mail from Mike Keel to Ruffner Page re: july 08 mgt report 8/12/2008 JX 0002-A 

CX 2078 

E-mail from Victor Pais to Ruffner Page re: our schedule for meetings next week... 8/12/2008 JX 0002-A 

CX 2079 

E-mail from Victor Pais to Ruffner Page re: I will call U @ 2pm CDT 8/22/2008 JX 0002-A 

CX 2080 

E-mail from Michael Berry to Todd Karren re: Weekly Activity Report week ending 8/6/2010 8/10/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 90 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2081 

E-mail from Victor Pais to Ruffner Page, Walter Florence, Siddharth Bhattacharji et al. re: Conference Call Friday 8/29/08 8/28/2008 JX 0002-A 

CX 2082 

E-mail from Leon McCullough to Ruffner Page re: End of the month Special Sigma Ltr 8-28-08 w/Attach: Sigma Ltr 8-28-08.pdf 8/29/2008 JX 0002-A 

CX 2083 E-mail from Victor Pais to Ruffner Page re: CA draft... 9/9/2008 JX 0002-A CX 2084 E-mail from Ruffner Page to Michelle McNamee re: Victor 9/29/2008 JX 0002-A CX 2085 Intentionally Not Used N/A CX 2086 E-mail Victor Pais to Ruffner Page re: meeting 10/15/2008 JX 0002-A CX 2087 

E-mail from Allan Boscacci to Ruffner Page re: direction for 2009 PLBG Group w/Attach: Plbg group Direction 2009.doc 12/10/2008 JX 0002-A 

CX 2088 

E-mail from Victor Pais to Ruffner Page re: Thanks -- I will call you @ 1:15 PM CDT Keep lunch short! 1/12/2009 JX 0002-A 

CX 2089 

E-mail from Ruffner Page to Phillip McWane re: December DIFRA Report w/Attach: DIFRA_2008_12.xls 1/23/2009 JX 0002-A 

CX 2090 

E-mail from Leon McCullough to Ruffner Page re: From ScanFront220 1/30/2009 JX 0002-A 

CX 2091 E-mail from Ruffner Page to Leon McCullough re: Sigma 3/17/2009 JX 0002-A CX 2092 

E-mail from Victor Pais to Ruffner Page re: Please mark me down for the Thursday (4/2) 3 PM -- thanks! 3/27/2009 JX 0002-A 

CX 2093 E-mail from Victor Pais to Ruffner Page re: mtg today... 4/2/2009 JX 0002-A CX 2094 

E-mail from Victor Pais to Ruffner Page re: Wld like to talk to you later this aftn...What's a good time? 4/6/2009 JX 0002-A 

CX 2095 

E-mail from Ruffner Page to Victor Pais re: Can I call you @ 11 am CDT? 6/10/2009 JX 0002-A 

CX 2096 

E-mail from Michelle McNamee to Ruffner Page re: Tank [sic] you -- I will see you Friday morning @ 9 am 6/29/2009 JX 0002-A 

CX 2097 E-mail from Ruffner Page to Leon McCullough re: surestop 6/30/2009 JX 0002-A CX 2098 E-mail from Ruffner Page to Dennis Charko re: surestop 5/2/2009 JX 0002-A CX 2099 

E-mail from Victor Pais to Ruffner Page re: our meeting --Wednesday/Thursday 5/19/2009 JX 0002-A 

CX 2100 

E-mail from Victor Pais to Ruffner Page re: on my way -running a bit late 5/21/2009 JX 0002-A 

CX 2101 

E-mail from Ruffner Page to Leon McCullough re: ACIPCo/TylerUnion 5/21/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 91 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2102 E-mail from Victor Pais to Ruffner Page re: Ur Vms 5/29/2009 JX 0002-A 

CX 2103 

E-mail from Ruffner Page to Rick Tatman re: BCH ownership - patterns 5/30/2009 JX 0002-A 

CX 2104 

REMOVED -- DUPLICATE EXHIBIT E-mail from Leon McCullough to Ruffner Page re: Ferguson Fittings 6/15/2009 RX-172 JX 0002-A 

CX 2105 

E-mail from Leon McCullough to Ruffner Page re: ACIPCo/Sigma 6/22/2009 JX 0002-A 

CX 2106 

E-mail from Ruffner Page to Thomas Walton and Rick Tatman re: Ferguson service levels 5/15/2009 JX 0002-A 

CX 2107 

E-mail from Ruffner Page to Leon McCullough re: another wish/thought 7/9/2009 JX 0002-A 

CX 2108 

E-mail from Victor Pais to Ruffner Page re: request for a meeting... 8/5/2009 JX 0002-A 

CX 2109 

E-mail from Leon McCullough to Ruffner Page re: June, 2009 vs. July, 2009 w/Attach: Review Report1.xls, June vs July 09 Variance Analysis.xls 8/7/2009 JX 0002-A 

CX 2110 

E-mail from Victor Pais to Ruffner Page re: Meeting this week... 8/23/2009 JX 0002-A 

CX 2111 E-mail from Leon McCullough to Ruffner Page re: Victor 8/25/2009 JX 0002-A CX 2112 E-mail from Ruffner Page to Leon McCullough re: Sigma 9/15/2009 JX 0002-A CX 2113 

E-mail from Ruffner Page to Kurt Winter re: GM meeting in Tyler 10/21/2009 JX 0002-A 

CX 2114 E-mail from Ruffner Page to Allan Boscacci re: [no subject] 3/8/2010 JX 0002-A 

CX 2115 

E-mail from Ruffner Page to Leon McCullough re: Trust Letter to Pipe group 6/22/2011 JX 0002-A 

CX 2116 

Letter from Victor Pais to Alex and PJ Gopi re: A Strategic Master Plan 8/4/2008 Tr. 3475:4-10 

CX 2117 

Letter from Victor Pais to Walter Florence re: Check List for Discussion 6/23/2008 Tr. 3475:4-10 

CX 2118 

E-mail from Victor Pais to Yin Baohai & Yin Zhenhao re: An update about the corporate changes at McWane... 10/22/2007 Tr. 1882:19-21 Tr. 1

CX 2119 

E-mail from Victor Pais to Larry Rybacki & Siddharth Bhattacharji re: Ruffner's resp for my Request for a meeting... 12/13/2007 Tr. 1894:5-7 

Tr. 12041

* Connotes an objection on hearsay grounds.Confidential 92 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2120 

E-mail from Victor Pais to Siddharth Bhattacharji re: URG...Pl review the attached draft for McW... w/Attach: McWane Meeting-121407.doc 12/14/2007 

Tr. 1889:25-1890:2 

Tr. 11890

CX 2121 Tyler/Union 2009 Budget Waterworks Division 00/00/2009 JX 0002-A 

CX 2122 Intentionally Not Used N/A 

CX 2123 

E-mail from John Springer to Thomas Walton, Tatmanand Leon McCullough re: 2008 vs. 2007 w/Attach: Tyler Union Var analysis.xls, Variance Analysis.doc 9/8/2008 JX 0002-A 

CX 2124 

E-mail from John Springer to Thomas Walton, Rick Tatman, Leon McCullough et al. re: 2008 vs. 2007 -Waterworks w/Attach: Tyler Union Var analysis.xls, Variance Analysis.doc 10/7/2008 JX 0002-A 

CX 2125 

E-mail from John Springer to Kent Brown, Rick Tatman, Thomas Walton et al. re: 2008 vs. 2007 - Waterworks Division w/Attach: Tyler Union Var analysis.xls, Variance Analysis.doc 12/8/2008 JX 0002-A 

CX 2126 

E-mail from John Springer to Rick Tatman, Thomas Walton and Leon McCullough re: 2008 vs. 2007 - Waterworks Division w/Attach: Tyler Union Var analysis.xls, Variance Analysis.doc 1/14/2009 JX 0002-A Tr. 8

CX 2127 

E-mail from John Springer to Rick Tatman, Thomas Walton and Leon McCullough re: 2009 vs. 2008 - Waterworks Division w/Attach: Variance Analysis.xls, Variance Analysis.doc 2/10/2008 JX 0002-A 

CX 2128 

E-mail from Rick Tatman to Charlie Nowlin re: Performa Sigma Offer July 2009.xls w/Attach: Peforma Sigma Offer July 2009.xls 7/22/2008 JX 0002-A 

CX 2129 

E-mail from John Springer to Leon McCullough, Thomas Walton, Rick Tatman et al. re: 2009 vs. 2008 - Waterworks Division w/Attach: Variance Analysis.doc, Variance Analysis.xls 8/10/2009 JX 0002-A 

CX 2130 

E-mail from John Springer to Leon McCullough, Thomas Walton, Rick Tatman et al. re: Waterworks Division 2009 vs. 2008 w/Attach: Variance Analysis.doc, Variance Analysis.xls 9/10/2009 JX 0002-A 

CX 2131 

E-mail from John Springer to Kurt Winter and Greg Simmons re: 2009 vs. 2008 w/Attach: Variance Analysis.doc, Variance Analysis.xls 12/7/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 93 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2132 

E-mail from John Springer to Leon McCullough, Thomas Walton, Rick Tatman et al. re: 2009 vs. 2008 - Waterworks Division w/Attach: Variance Analysis.doc, Variance Analysis.xls 1/14/2010 JX 0002-A 

CX 2133 Intentionally Not Used N/A CX 2134 

E-mail from John Springer to Leon McCullough, Rick Tatman and Kent Brown re: 2011 v 2010 - Waterworks Division w/Attach: Variance Analysis Discussion.doc, Variance Analysis.xls 3/4/2011 JX 0002-A 

CX 2135 

E-mail from Brant Locklier to Rick Tatman, Barry Patterson, Leon McCullough et al. re: Month end for Tyler Union w/Attach: 1ConsollncState1211.xlsm, 2SGP1211.xls, 3WWFin State1211.xls 1/10/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2136 

E-mail from Tom Leonard to Ruffner Page, Boscacciand Leon McCullough re: Corporate Rebate 2/6/2008 JX 0002-A 

CX 2137 Intentionally Not Used N/A CX 2138 

E-mail Brant Locklier to Rick Tatman, Leon McCullough, Kent Brown et al. re: More monthly reports from Union w/Attach: 2SGP0511.XLS 6/5/2011 JX 0002-A 

Ordered 8/17/2012 

CX 2139 

E-mail from John Springer to Bob Sheehan, Tom Leonard, Rick Tatman et al. re: 2006 vs. 2005 w/Attach: TP Variance Analysis 0612.xls, TP Variance Analysis 0612.doc 1/12/2007 JX 0002-A 

CX 2140 

E-mail from Jerry Soules to Charlie Nowlin and John Springer re: GFD vs Impact Analysis w/Attach: All Options at 2007 Price & 2007 - fixed vs. variable.xls 10/18/2007 JX 0002-A 

CX 2141 -CX 2142 Intentionally Not Used N/A 

CX 2143 

E-mail from Charlie Nowlin to Thomas Walton re: Sensitivity Analysis.xls w/Attach: Sensitivity Analysis.xls 11/29/2007 JX 0002-A 

CX 2144 Intentionally Not Used N/A 

CX 2145 

E-mail from Charlie Nowlin to Jody Hall re: 2008 vs. 2007 -Tyler/Union Combined w/Attach: Tyler Union Var Analysis.xls, Variance Analysis.doc 7/11/2008 JX 0002-A 

Tr. 44123

CX 2146 Intentionally Not Used N/A 

CX 2147 

E-mail from Yuxiao to Andy Payant, Charlie Nowlin, Leon McCullough et al. re: Txx_blue book_Dec08: w/Attach: Txx_BlueBook_Dec08.xls 1/8/2009 JX 0002-A 

CX 2148 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 94 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2149 

E-mail from John Springer to Kurt Winter, Tony Orlowski and Tom Leonard 2009 vs. 2008 - Plumbing Division w/Attach: Variance Analysis.xls, Variance Analysis.doc 2/10/2009 JX 0002-A 

CX 2150 

E-mail from John Springer to Leon McCullough, Thomas Walton and Rick Tatman re: Waterworks Division 2009 vs. 2008 w/Attach: Variance Analysis.doc, Variance Analysis.xls 3/11/2009 JX 0002-A 

CX 2151 

E-mail from John Springer to Leon McCullough, Thomas Walton, Rick Tatman et al. re: 2009 vs. 2008 - Waterworks Division w/Attach: Variance Analysis.doc, Variance Analysis.xls 6/5/2009 JX 0002-A 

CX 2152 

E-mail from Thomas Walton to Charlie Nowlin re: June, 2009 vs. July, 2009 w/Attach: Review Report1.xls, June vs. July 09 Variance Analysis.xls 8/6/2009 JX 0002-A 

CX 2153 

E-mail from John Springer to Leon McCullough, Thomas Walton, Rick Tatman et al. re: 2009 vs 2008 - Waterworks Division w/Attach: Variance Analysis.doc, Variance Analysis.xls 11/6/2009 JX 0002-A 

CX 2154 

E-mail from John Springer to Leon McCullough, Rick Tatman and Kent Brown re: 2010 vs. 2009 w/Attach Variance Analysis Discussion.doc, Variance Analysis.xls 1/13/2011 JX 0002-A 

CX 2155 

E-mail from Charlie Nowlin to Thomas Walton re: [no subject] 8/4/2009 JX 0002-A 

CX 2156 

E-mail from Yuxiao to Andy Payant, Barry Patterson and Rick Tatman re: blue book Nov09 Txx w/Attach: Txx Blue Book Nov09.xls 12/6/2009 JX 0002-A 

CX 2157 

E-mail from John Springer to Leon McCullough, Thomas Walton, Rick Tatman et al. re: 2009 vs. 2008 - Waterworks Division w/Attach: Variance Analysis.doc, Variance Analysis.xls 4/7/2009 JX 0002-A 

CX 2158 

E-mail from John Springer to Leon McCullough, Thomas Walton and Rick Tatman re: 2009 vs. 2008 - Waterworks Division re: Variance Analysis.doc, Variance Analysis.xls 5/8/2009 JX 0002-A 

CX 2159 

E-mail from John Springer to Leon McCullough, Thomas Walton and Rick Tatman et al. re: 2009 vs. 2008 -Waterworks Division w/Attach: Variance Analysis.doc, Variance Analysis.xls 7/9/2009 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 95 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2160 Intentionally Not Used N/A CX 2161 

Letter from Jerry Jansen to Eddie Gibbs re: Program Offering for 2011 2/7/2011 JX 0002-A 

CX 2162 List of WinWater Works Companies 5/22/2012 JX 0002-A 

CX 2163 List of Purchases from 2007 to 2011 00/00/2011 JX 0002-A CX 2164 

E-mail from Jerry Jansen to Eddie Gibbs re: New List Pricing - Tyler Union w/Attach: Tyler Union Price Announcement 2 15 2011.docx; UT Tyler Union Price Announcement 2 15 2011.docx; PA Tyler Union Price Announcement 2 15 2011.docx 2/16/2011 JX 0002-A 

CX 2165 

Letter from Rick Tatman to Eddie Gibbs re: Thank you for your support 5/17/2010 JX 0002-A 

CX 2166 

E-mail from Eddie Gibbs to Local Cos - WinWater re: Domestic Ductile Fittings w/Attach: McWane Announcement Sept 22nd 2009.pdf; SIGMA-BA-MDACustomer Letter-092209.pdf 4/14/2010 JX 0002-A 

CX 2167 

E-mail from Eddie Gibbs to Rick Tatman re: Tyler Union Announcement w/Attach: McWaneAnnouncement Sept 22nd 2009.pdf 11/2/2009 JX 0002-A 

CX 2168 

E-mail from Eddie Gibbs to M.L. Salsman, Ronald Bohannon, Stephen Coen et al. re: Tyler Union Questions follow-up 9/23/2009 JX 0002-A 

CX 2169 

E-mail from Eddie Gibbs to Local Cos - Winwater re: Star Pipe "American Made" Announcement 6/18/2009 JX 0002-A 

CX 2170 

E-mail from Rick Tatman to Rick Tatman re: Tyler/Union Announcement Regarding pending price action on Fittings and Accessories w/Attach: TylerUnion Announcement May 7 2008.pdf 5/8/2008 JX 0002-A Tr. 4

CX 2171 Intentionally Not Used N/A 

CX 2172 

E-mail from Glenn Fielding to Linda Mills and Brian Parker re: Tyler/Union Price Increase Announcement w/Attach: TylerUnion Price Increase Letter 01 11 08.pdf 1/11/2008 JX 0002-A 

Tr. 32774

CX 2173 

E-mail from Glenn Fielding to Jerry Webb and Darrin Anderson re: Tyler Union Announcement -- here is the meat of text 9/22/2009 JX 0002-A 

Tr. 22761

CX 2174 Intentionally Not Used N/A CX 2175 

E-mail from Leon McCullough to Allan Boscacci, Michael Lowe, Kip Wixson et al. re: 2009 Sales $ for Rebates.xls w/Attach: 2009 Sales $ for Rebates.xls 11/30/2009 JX 0002-A 

CX 2176 Handwritten notes prepared for 3/9/10 meeting 3/9/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 96 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2177 

E-mail from Rick Tatman to Thomas Walton and Kent Brown re: DIWF Dom vs. Blend Mix July w/Attach: DIWF Dom vs Blend Mix July.xls 8/18/2009 JX 0002-A 

CX 2178 

E-mail from Rick Tatman to Thomas Walton re: Tyler/Union New List Price & Multipliers w/Attach: Multiplier Change Analysis.xlsm 4/12/2009 JX 0002-A 

CX 2179 Presentation: Star Pipe Products: Made in the USA 6/29/2009 JX 0002-A CX 2180 

E-mail from Thomas Walton to Leon McCullough w/Attach: Prices Reduction and Rebate Analysis 081409.xls 8/14/2009 JX 0002-A 

CX 2181 Intentionally Not Used N/A CX 2182 

E-mail from Rick Tatman to Thomas Walton re: HDS & FEI Programs w/Attach: Amended TylerUnion DIWF Program March 19th.doc; 2009 TylerUnion DIWF Program March 11th.doc 8/19/2009 JX 0002-A 

CX 2183 Handwritten Notes prepared for 10/2/10 meeting 10/2/2010 JX 0002-A CX 2184 Intentionally Not Used N/A CX 2185 

E-mail from Leon McCullough to Thomas Walton and Rick Tatman re: We now have domestic stock Fittings and JR 7/24 7/24/2009 JX 0002-A 

CX 2186 

E-mail from Thomas Walton to Leon McCullough re: Sigma ULFM 11/18/2009 JX 0002-A 

CX 2187 

E-mail from Ruffner Page to Mike Keel, Leon McCullough and Thomas Walton re: USP 3/25/2009 JX 0002-A 

CX 2188 TylerUnion Job Pricing Request for R&B Supply 1/15/2011 JX 0002-A CX 2189 

E-mail from Jerry Jansen to Rick Tatman and Vince Napoli re: FEI MD VA Program Credit 5/13/2011 JX 0002-A 

CX 2190 

E-mail from Jerry Jansen to Roger Wells & Mike Snyder re: Acc Ut 5/21/2011 JX 0002-A 

CX 2191 

E-mail from Jerry Jansen to Vince Napoli, Scott Harms and Buck Christian re: Coleman Enterprises 1/6/2012 JX 0002-A 

CX 2192 

E-mail from Vince Napoli to Rick Tatman re: Dom pricing and Star 8/2/2010 JX 0002-A 

CX 2193 

E-mail from Jerry Jansen to Vince Napoli, Nikki Dolick and Scott Harms re: Huntsville Utilities 7/12/2010 JX 0002-A 

CX 2194 Intentionally Not Used N/A CX 2195 

E-mail from Nikki Dolick to Vince Napoli re: Atlanta Annual Bid 7/12/2010 JX 0002-A 

CX 2196 

E-mail from Scott Harms to Jerry Jansen, Vince Napoli and Nikki Dolick re: Atlanta Annual Bid 7/12/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 97 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2197 

E-mail from Jerry Jansen to Vince Napoli, Scott Harms and Nikki Dolick re: Huntsville Utilities 7/13/2010 JX 0002-A 

CX 2198 

E-mail from Scott Harms to Jerry Jansen, Vince Napoli and Nikki Dolick re: Cobb Co 9/3/2010 JX 0002-A 

CX 2199 

E-mail from Vince Napoli to Sheila Sullivan re: Wilson Mills Roger Johnson County 8/16/2010 JX 0002-A 

CX 2200 -CX 2202 Intentionally Not Used N/A CX 2203 Meeting notes from Rick Tatman 10/13/2009 JX 0002-A 

Tr. 22901

CX 2204 Intentionally Not Used N/A CX 2205 

E-mail from Stephen Gables to Ray Torok, Tom Morton and Gary Crawford re: FW: Tyler Union & Sigma Letters 9/22/2009 JX 0002-A Tr. 2

CX 2206 -CX 2208 Intentionally Not Used N/A CX 2209 

E-mail from Tom Morton to Stephen Gables re: 4541 Ballenger - Mckinney (4"-24" Domestic Fittings) 2/25/2010 JX 0002-A 

CX 2210 

E-mail from Tom Morton to Paul Ciolino RE: Excess MJ Field Lok gland inventory 9/7/2010 JX 0002-A 

CX 2211 -CX 2213 Intentionally Not Used N/A CX 2214 

E-mail from Stephen Gables to Tom Morton re: US Pipe charts 9/9/2010 JX 0002-A 

CX 2215 

E-mail from Susan Schepps to Tom Morton re: Star -American Made Development Plan rev. 9/03 9/15/2009 JX 0002-A Tr. 2

CX 2216 Intentionally Not Used N/A CX 2217 

E-mail from Tom Morton to Ray Torok, Gary Crawford, & Phil Goodwin re: Star Pipe trip report - November 12, 2009 w/Attach: Star Pipe trip report - November 12, 2009.doc 11/12/2009 JX 0002-A Tr. 2

CX 2218 -CX 2221 Intentionally Not Used N/A CX 2222 

E-mail from Tom Morton to Jordan Dorfman and Philip Metzger re: EPA 6/3/2009 JX 0002-A 

CX 2223 

E-mail from Tom Morton to Ray Torok, Gary Crawford, Kent Brown et al. re: Fittings Information w/Attach: Fittings Market - April 15, 2009.doc, Fittings market Data - April 15 2009.xls 4/15/2009 JX 0002-A Tr. 2

* Connotes an objection on hearsay grounds.Confidential 98 
Exhibit No. Description Date 

Also Referenced 

As Admissiblity In Camera Tria

CX 2224 -CX 2230 Intentionally Not Used N/A CX 2231 

E-mail from Courtney Davis to Margaret Powell re: DIFRA -U.S. Pipe w/Attach: DIFRA Input Output Format Rev 2 xls (3).xls 6/5/2008 JX 0002-A 

CX 2232 

E-mail from Jane Flanary to Gary Crawford re: DIFRA updated for Feb sales w/Attach: DIFRA Input Output USPIPE Feb10.xls 3/4/2010 JX 0002-A 

CX 2233 -CX 2251 Intentionally Not Used N/A CX 2252 

E-mail from Craig Schapiro to M20 re: New Multipliers -Star Pipe Products 6/27/2008 Tr. 3475:4-10 Tr. 3

CX 2253 

E-mail from Greg Fox to Russell Axon, Gloria Lamborne, Scott Marlow et al. re: Fitting/Accessory Price Increase Confirmation Letters w/Attach: Price Increase Southeast -July 14 2008.pdf; Price Increase Mississippi - July 14 2008.pdf 7/7/2008 Tr. 3475:4-10 Tr. 3

CX 2254 

E-mail from Matt Minamyer to Matt Minamyer, Bud Leider, Michael Berry et al. re: Mult Change plan for your review 6/19/2008 JX 0002-A Tr. 3

CX 2255 

E-mail from Star Pipe Products to Outside Sales re: New Multipliers - Star Pipe Products 6/27/2008 JX 0002-A 

CX 2256 

REMOVED -- DUPLICATE EXHIBIT Federal Register/Vol. 74, No. 104: EPA Notice of Nationwide Waiver of Section 1605 (Buy American Requirement) of American Recovery and Reinvestment Act of 2009 (ARRA) for de minimis Incidental Components of Projects Financed Through the Clean or Drinking Water State Revolving Funds Using Assistance Provided Under ARRA 6/2/2009 RX-155 JX 0002-A 

CX 2257 Intentionally Not Used N/A 

CX 2258 

Spreadsheet: Griffin Pipe Fitting Purchases 1/1/2003 to 4/23/2012 4/23/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2259 

Spreadsheet: Griffin Pipe Products Fitting Sales January 2003 to December 2011 12/00/2011 JX 0002-A 

Ordered 8/17/2012 

* Connotes an objection on hearsay grounds.Confidential 99 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2260 

Expert Report of Laurence Schumann, PH.D. (In Camera Version) 6/15/2012 JX 0002-A 

Ordered 10/26/2012 

Tr. 33763384041414190436444734646

CX 2260-A 

Expert Report of Laurence Schumann, PH.D. (Public Version) 6/15/2012 Tr. 6041:17-18 Tr. 6

CX 2261 

E-mail from Jerry Jansen to Justin Connor re: Middleton CT Annual renewal 9/3/2010 JX 0002-A 

CX 2262 

E-mail from Vince Napoli to Jerry Jansen re: City of Lakeland Annual bids 9-8-10 w/Attach: Tyler Union.xlsx, tyler union2xls, Tyler Union3.xls, tyler union4.xls, tyler union5.xls, Tyler union CIVD.xlsx, tyler union CIVB risers.xlsx 9/1/2010 JX 0002-A 

CX 2263 E-mail from Larry Ruffin to Vince Napoli re: Florida Pricing 8/23/2010 JX 0002-A 

CX 2264 

E-mail from Marla Drake to Vince Napoli re: Indian Springs WTP Feguson w/Attach: Indian Creek File Quotes.pdf 7/22/2010 JX 0002-A 

CX 2265 

Rebuttal Expert Report of Laurence Schumann, Ph.D. (In Camera Version) 7/12/2012 JX 0002-A 

Ordered 10/26/2012 

Tr. 559315989

CX 2265-A 

Rebuttal Expert Report of Laurence Schumann, Ph.D. (Public Version) 7/12/2012 Tr. 6041:19-20 Tr. 6

CX 2266 

E-mail from Thad G. Long to Tom Brakefield re: DIFRA Input Output Format (3).xls 4/8/2008 JX 0002-A 

CX 2267 

E-mail from Dan McCutcheon to Rick Tatman, Thad G. Long, Tom Brakefield et al. re: DIFRA Input Output Format (3).xls 4/9/2008 JX 0002-A Tr. 4

CX 2268 

E-mail from Wood Herren to Rick Tatman re: DIFRA reporting 5/28/2008 JX 0002-A 

CX 2269 

E-mail from Rick Tatman to Wood Herren re: April DIFRA report 6/11/2008 JX 0002-A Tr. 5

CX 2270 

E-mail from Wood Herren to Tom Brakefield, Rick Tatman, Gary Crawford et al. Ductile Iron Fittings Research Association - Reporting of Fittings Sales 6/12/2008 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 100 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2271 Intentionally Not Used N/A CX 2272 

E-mail from Thad G. Long to Tom Brakefield re: DIFRA Meeting 3/18/2008 Tr. 1285:18-20 

Tr. 11285

CX 2273 -CX 2275 Intentionally Not Used N/A CX 2276 

E-mail from Andrea Gayle to Mike Vore re: 2012 Wolseley North America Corporate Sourcing Agreement(s) -McWane, Inc. w/Attach: 2012 McWane, Inc. - Admin. Agreement.pdf, 2012 McWane, Inc. - Rebate Agreement.pdf 5/8/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2277 

E-mail from Andrea Gayle to Rick Tatman re: 2012 Wolseley North America Corporate Sourcing Agreement(s) -

Tyler Union w/Attach: 2012 Tyler Union - Admin. Agreement.pdf, 2012 Tyler Union - Rebate Agreement.pdf 2/13/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2278 -CX 2286 Intentionally Not Used N/A CX 2287 

E-mail from Michael Berry to Bud Leider and Matt Minamyer re: AZ, CA, HI 4/23/2009 JX 0002-A 

CX 2288 

E-mail from Dan McCutcheon to Ramesh Bhutada and Kirthi Jain re: Extract from "Weekly report from Sales" 4/23/2009 JX 0002-A 

CX 2289 -CX 2290 Intentionally Not Used N/A 

CX 2291 

REMOVED -- DUPLICATE EXHIBIT E-mail from Victor Pais to Leon McCullough re: Victor to Leon: Thank you ... see you Tuesday ... Have a great weekend! 4/24/2009 CX 0728 Tr. 3475:4-10 

CX 2292 Intentionally Not Used N/A CX 2293 

E-mail from Michael Berry to Shaun Smith, Todd Karren, Kris Kadai, John Ristine, Blake Wegener, Tomas Carlin, Pam Garey, John Lemoine re: Domestic Updates 12/21/2009 JX 0002-A 

CX 2294 

E-mail from Pam Garey to Dan McCutcheon re: Do you have copies of tile domestic quote log? 7/16/2011 JX 0002-A 

Tr. 243794617

CX 2295 ADIP Fittings Sales 2003 - 2012 00/00/2003 JX 0002-A 

Ordered 8/17/2012 

CX 2296 AFC Fittings Sales 2003 - 2012 00/00/2003 JX 0002-A 

Ordered 8/17/2012 

* Connotes an objection on hearsay grounds.Confidential 101 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2297 

REMOVED -- DUPLICATE EXHIBIT E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Pricing Strategy Changes 11/25/2008 CX 0831 JX 0002-A 

CX 2298 -CX 2299 Intentionally Not Used N/A CX 2300 

E-mail from Matt Minamyer to Bud Leider, Michael Berry, Neil McGillivray et al. re: Multiplier Increase 2/2/2008 

CX 0043 

(MESP0009348); 

CX 1354 

(SPP009413) JX 0002-A 

Tr. 24226

CX 2301 -CX 2303 Intentionally Not Used N/A 

CX 2304 

REMOVED -- DUPLICATE EXHIBIT E-mail from Bud Leider to Matt Minamyer re: Sigma aggressive 11/4/2008 RX-110 JX 0002-A 

CX 2305 

E-mail from Bud Leider to Matt Minamyer re: 30" and up fittings 11/4/2008 JX 0002-A 

CX 2306 Intentionally Not Used N/A CX 2307 

E-mail from Bud Leider to Matt Minamyer re: Budget 2009 w/Attach: Cental - Budget 2009.xls 12/2/2008 JX 0002-A 

Ordered 8/31/2012 

CX 2308 E-mail from Bud Leider to Matt Minamyer re: Sigma Denver 12/15/2008 JX 0002-A CX 2309 

E-mail from John Fiorillo to Dan McCutcheon re: Activity Report that I mentioned HD not being able to buy from us w/Attach: Weekly Activity Report 1 22 2010.doc, Weekly Activity Report 10 16 2009.doc, Weekly Activity Report 10-2 2009.doc 3/12/2010 JX 0002-A 

CX 2310 -CX 2311 Intentionally Not Used N/A CX 2312 

E-mail from Bud Leider to Dan McCutcheon re: Sept 22nd Announcement Q&A.pdf 9/22/2009 JX 0002-A 

CX 2313 -CX 2315 Intentionally Not Used N/A CX 2316 

E-mail from Pete Lisowski to Bud Leider and Dan McCutcheon re: Week Ending 2-27-10 2/28/2010 JX 0002-A 

CX 2317 Intentionally Not Used N/A CX 2318 

E-mail from Dan McCutcheon to John Fiorillo re: Activity reports that I mentioned HD not being able to buy from us 3/10/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 102 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2319 

E-mail from Michael Berry to Bud Leider re: Please send me a copy of your mbos w/Attach: 2010 Game Plan & MBO's - Ryan Michael Berry.doc 3/29/2010 JX 0002-A 

CX 2320 -CX 2322 Intentionally Not Used N/A CX 2323 -CX 2324 Intentionally Not Used N/A CX 2325 Star Domestic Roger Wells territory 60 7/3/2010 JX 0002-A CX 2326 Intentionally Not Used N/A CX 2327 

E-mail from Thomas Walton to Rick Tatman re: Draft Presentation for 1Q 2008 DIWF LP Review.ppt 12/31/2007 JX 0002-A Tr. 3

CX 2328 

E-mail from Dan McCutcheon to Kristin Reid re: Groeniger -WaltonRd Domestic and Import - REV 2.1.10 2/1/2010 JX 0002-A 

CX 2329 

E-mail from Victor Pais to Tom Brakefield, Larry Rybacki, & Siddharth Bhattacharji re: DIFRA meeting 5/14/2009 JX 0002-A 

CX 2330 

E-mail from Star Pipe Products to Outside Sales re: Star -New Multipliers 6/25/2009 JX 0002-A 

CX 2331 

E-mail from Star Pipe Products to Outside Sales re: Star -New Multipliers 6/25/2009 JX 0002-A 

CX 2332 

E-mail from Star Pipe Products to Outside Sales re: Star -New Multipliers 6/25/2009 JX 0002-A 

CX 2333 

E-mail from Star Pipe Products to Sales Management re: Star - New Multipliers 6/26/2009 JX 0002-A 

CX 2334 

E-mail from Ramesh Bhutada to Pawan Sharda et al FW: DIFRA September 2008 10/17/2008 JX 0002-A 

Ordered 8/31/2012 

CX 2335 

REMOVED -- DUPLICATE EXHIBIT E-mail from Dan McCutcheon to Pawan Sharda RE: Star Pipe Market Share % Analysis thru Apr 08 7/8/2008 CX 1708 JX 0002-A 

CX 2336 

E-mail from Star Pipe Products to Outside Sales re: New Multipliers - Star Pipe Products 2/6/2008 JX 0002-A Tr. 3

CX 2337 

REMOVED -- DUPLICATE EXHIBIT E-mail from Pawan Sharda to Ramesh Bhutada RE: Housing Data Summary thru Mar 08 4/23/2009 RX-143 JX 0002-A 

Ordered 8/31/2012 

CX 2338 -CX 2342 Intentionally Not Used N/A CX 2343 

Region 20 Weekly Highlights: December 2008 through March 2010 3/13/2010 JX 0002-A 

CX 2344 Weekly Highlights: October through March 3/7/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 103 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2345 -CX 2348 Intentionally Not Used N/A CX 2349 

E-mail from Rick Tatman to Thomas Walton re: Star New Utility Pice List 4/23/2009 JX 0002-A 

CX 2350 -CX 2351 Intentionally Not Used N/A CX 2352 

E-mail from Greg Adams to Jerry Jansen and Douglas Allen re: Star w/Attach: _AVGcert.txt 5/1/2009 JX 0002-A 

CX 2353 Handwritten Notes: WWF Meeting 8/20/2009 JX 0002-A CX 2354 

E-mail from Rick Tatman to Leon McCullough and Thomas Walton re: Summary Notes from Sigma LOI discussion with Mitchell Rona 6pm Monday 8/24/2009 JX 0002-A 

CX 2355 -CX 2357 Intentionally Not Used N/A CX 2358 TylerUnion List Prices Effective May 1, 2009 5/1/2009 JX 0002-A CX 2359 

Star Pipe Products Domestic Utility Fittings & Accessories Price List 5/12/2009 JX 0002-A 

CX 2360 

E-mail from Manoj Rathi to Navin Bhargava re: DIFRA Reports w/Attach: DIFF Star share_r.xls 6/17/2008 JX 0002-A 

CX 2361 Intentionally Not Used N/A CX 2362 

E-mail from Manoj Rathi to Navin Bhargava re: Fittings Sales .. (Regular Ton Base) w/Attach: DIFRA Input Output Format Rev 2 xls (3) (3).xls 5/20/2008 JX 0002-A 

CX 2363 

E-mail from Manoj Rathi to Vinod Mantri and Kirthi Jain re: DIFRA data with May number w/Attach: DIFF_06short_0708short_lg_lcan (2).xls 6/27/2008 JX 0002-A 

CX 2364 Intentionally Not Used N/A CX 2365 

E-mail from Vinod Mantri to Dan McCutcheon and Navin Bhargava re: DIFRA Report - Dec 08 w/Attach: DIFRA Report.xls 1/12/2009 JX 0002-A 

CX 2366 

E-mail from Ramesh Bhutada to Dan McCutcheon re: Market share calculation w/Attach: Market share projections (1).xls 5/20/2009 JX 0002-A 

Ordered 8/31/2012 

CX 2367 Intentionally Not Used N/A CX 2368 

E-mail from Narendra Zamwar to Dan McCutcheon re: Domestic Development Plan w/Attach: ARRA -Development Plan - Commitement to Sales.xls 8/25/2009 JX 0002-A 

Ordered 8/31/2012 

CX 2369 -CX 2374 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 104 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2375 

E-mail from Narendra Zamwar to Navin Bhargava re: Domestic Cost Increase Summary 3/3/2011 JX 0002-A 

Ordered 8/31/2012 

Tr. 22993

CX 2376 -CX 2380 Intentionally Not Used N/A 

CX 2381 

E-mail from Narendra Zamwar to Dan McCutcheon re: CAW 3/22/2010 JX 0002-A 

Ordered 8/31/2012 

CX 2382 Intentionally Not Used N/A CX 2383 

E-mail from Kirthi Jain to Dan McCutcheon re: DIFRA December 2007 & 2008 Reports w/Attach: DIFRA Fittings Report Dec 2008.pdf, image001.gif 2/1/2010 JX 0002-A 

CX 2384 

E-mail from Manoj Rathi to Sachin Jakhotia and Navin Bhargava re: Foote - This week's Production Schedule w/Attach: foote.xls 12/17/2009 JX 0002-A 

CX 2385 

E-mail from Kirthi Jain to Ravi Pallod and Navin Bhargava re: Weekly Multiplier Trend Report - 07-26-10 w/Attach: GP Margin & Multi. Rpt (Excl Canada) - 07-26-2010.xlsx 7/27/2010 JX 0002-A 

Ordered 8/31/2012 

CX 2386 

E-mail from Manoj Rathi to Navin Bhargava re: Domestic Fittings Pattern Count 10/11/2010 JX 0002-A 

CX 2387 

E-mail from Manoj Rathi to Navin Bhargava re: Domestic Fittings Pattern Count w/Attach: Tyler Master List.xls 10/11/2010 JX 0002-A 

CX 2388 Intentionally Not Used N/A CX 2389 

E-mail from Navin Bhargava to Narendra Zamwar re: Frazier & Frazier Financial Information w/Attach: Star pipe information.xls 11/17/2009 JX 0002-A 

Ordered 8/31/2012 

CX 2390 

E-mail from Balaji Vemula to Dan McCutcheon, Mark Bowsher, Narendra Zamwar et al. re: RMA Status -December 09 w/Attach: Pending for Failure Analysis -December 09.xls, RMA Open for Sales Response -December 09.xls, Closed RMA - December 09.xls 1/5/2010 JX 0002-A 

CX 2391 

E-mail from Sachin Jakhotia to Navin Bhargava, Ravi Pallod, Basu et al. re: Project X2009 - Update as of Jun 3rd w/Attach: Quote Summary.xls, Matching cost.xls, Project X2009, Status and Action Plan.xls 6/3/2009 JX 0002-A 

Ordered 8/31/2012 

CX 2392 

E-mail from Ramesh Bhutada to Navin Bhargava, Narendra Zamwar, & Vishal Chandak re: 30" to 48" Fittings Sourcing/manufacturing Plan 8/19/2011 JX 0002-A 

Ordered 8/31/2012 

* Connotes an objection on hearsay grounds.Confidential 105 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2393 

E-mail from Manohar Venuturupalli to Sachin Jakhotia, Narendra Zamwar and Navin Bhargava re: Foote Foundry CMTR's 12/3/2009 JX 0002-A 

Ordered 8/31/2012 

CX 2394 

Union Foundry Financial Statements December 2006 Rick Tatman 12/00/2006 JX 0002-A 

Ordered 8/17/2012 

CX 2395 

Tyler Pipe Financial Statements December 2006 Rick Tatman 12/00/2006 JX 0002-A 

Ordered 8/17/2012 

CX 2396 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements December 2009 Rick Tatman 12/00/2009 RX-721 JX 0002-A 

Ordered 8/17/2012 

CX 2397 

Tyler Pipe Waterworks Fittings Financial Statements December 2007 Rick Tatman 12/00/2007 JX 0002-A 

Ordered 8/17/2012 

CX 2398 

Union Foundry Financial Statements December 2007 Rick Tatman 12/00/2007 JX 0002-A 

Ordered 8/17/2012 

CX 2399 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements July 2010 Rick Tatman 07/00/2010 RX-713 JX 0002-A 

Ordered 8/17/2012 

CX 2400 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements August 2010 Rick Tatman 08/00/2010 RX-714 JX 0002-A 

Ordered 8/17/2012 

CX 2401 

REMOVED -- DUPLICATE EXHIBIT Waterworks Fittings Financial Statements September 2010 Rick Tatman 09/00/2010 RX-715 JX 0002-A 

Ordered 8/17/2012 

CX 2402 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements October 2010 Rick Tatman 10/00/2010 RX-716 JX 0002-A 

Ordered 8/17/2012 

CX 2403 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements November 2010 Rick Tatman 11/00/2010 RX-717 JX 0002-A 

Ordered 8/17/2012 

CX 2404 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements January 2011 Rick Tatman 01/00/2011 RX-718 JX 0002-A 

Ordered 8/17/2012 

CX 2405 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements February 2011 Rick Tatman 02/00/2011 RX-719 JX 0002-A 

Ordered 8/17/2012 

CX 2406 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements March 2011 Rick Tatman 03/00/2011 RX-720 JX 0002-A 

Ordered 8/17/2012 

CX 2407 

Spreadsheet: Sigma International Group Financial Records January 31, 2008 1/31/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

* Connotes an objection on hearsay grounds.Confidential 106 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2408 

Spreadsheet: Sigma International Group Financial Records February 29, 2008 2/29/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2409 

Spreadsheet: Sigma International Group Financial Records March 31, 2008 3/31/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2410 

Spreadsheet: Sigma International Group Financial Records April 30, 2008 4/30/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2411 

Spreadsheet: Sigma International Group Financial Records May 31, 2008 5/31/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2412 

Spreadsheet: Sigma International Group Financial Records June 30, 2008 6/30/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2413 

Spreadsheet: Sigma International Group Financial Records July 31, 2008 7/31/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2414 

Spreadsheet: Sigma International Group Financial Records August 31, 2008 8/31/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2415 

REMOVED -- DUPLICATE EXHIBIT Tyler Union Waterworks Fittings Financial Statements December 2009 Leon McCullough 12/00/2009 RX-631 JX 0002-A 

Ordered 8/17/2012 

Tr. 55680

CX 2416 

Tyler Union Waterworks Fittings Financial Statements December 2008 Leon McCullough 12/00/2008 JX 0002-A 

Ordered 8/17/2012 Tr. 8

CX 2417 

Tyler Union Waterworks Fittings Financial Statements March 2010 Leon McCullough 03/00/2010 JX 0002-A 

Ordered 8/17/2012 

CX 2418 

Tyler Union Waterworks Fittings Financial Statements January 2010 Leon McCullough 01/00/2010 JX 0002-A 

Ordered 8/17/2012 

CX 2419 

Tyler Union Waterworks Fittings Financial Statements February 2010 Leon McCullough 02/00/2010 JX 0002-A 

Ordered 8/17/2012 

CX 2420 

Spreadsheet: Sigma International Group Financial Records September 30, 2008 9/30/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2421 

Spreadsheet: Sigma International Group Financial Records October 31, 2008 10/31/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2422 

Spreadsheet: Sigma International Group Financial Records November 30, 2008 11/30/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2423 

Spreadsheet: Sigma International Group Financial Records December 31, 2008 12/31/2008 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2424 

Spreadsheet: Sigma International Group Financial Records January 31, 2009 1/31/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2425 

Spreadsheet: Sigma International Group Financial Records February 28, 2009 2/28/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2426 

Spreadsheet: Sigma International Group Financial Records March 31, 2009 3/31/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

* Connotes an objection on hearsay grounds.Confidential 107 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2427 

Spreadsheet: Sigma International Group Financial Records April 30, 2009 4/30/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2428 

E-mail from Matt Minamyer to Ramon Prado re: McDadeFL Issue 11/29/2007 JX 0002-A 

CX 2429 

E-mail from Dan McCutcheon to Jason O'Nan & Vishal Chandak re: CISPI file - domestic only quote 3.28.08 3/28/2008 JX 0002-A 

CX 2430 

E-mail from Star Pipe Products to Outside Sales re: New Multipliers - Star Pipe Products 6/27/2008 JX 0002-A Tr. 2

CX 2431 

E-mail from Star Pipe Products to Outside Sales re: New Multipliers - Star Pipe Products 6/27/2008 JX 0002-A 

CX 2432 

E-mail from Star Pipe Products to Outside Sales re: New Multipliers - Star Pipe Products 6/27/2008 JX 0002-A 

CX 2433 

E-mail from Star Pipe Products to Outside Sales re: New Multipliers - Star Pipe Products 6/27/2008 JX 0002-A 

CX 2434 

E-mail from Vinod Mantri to Dan McCutcheon re: DIFRA Report - Sept 08 w/Attach: DIFRA Report.xls 10/13/2008 JX 0002-A 

CX 2435 

E-mail from Vinod Mantri to Dan McCutcheon and Navin Bhargava re: DIFRA Report - Oct 2008 w/Attach: DIFRA Report.xls 11/11/2008 JX 0002-A 

CX 2436 

E-mail from Rick Tatman to Leon McCullough re: Star news June 2010 6/8/2010 JX 0002-A 

CX 2437 

E-mail from Rick Tatman to Leon McCullough re: New Multiplier Maps 6/17/2010 JX 0002-A 

CX 2438 

E-mail from Rick Tatman to Leon McCullough re: Sigma Price Increase Letter 6/11/2010 JX 0002-A Tr. 3

CX 2439 

E-mail from Rick Tatman to Jerry Jansen re: Price increase letter 6/16/2010 JX 0002-A Tr. 5

CX 2440 

E-mail from Rick Tatman to Butch J. Doane re: Tyler Union price increase 6/17/2010 JX 0002-A Tr. 3

CX 2441 

E-mail from Rick Tatman to Jerry Jansen re: Star - New Fitting Multipliers 6/19/2010 JX 0002-A 

CX 2442 

E-mail from Rick Tatman to Leon McCullough and Jerry Jansen re: Price Announcement 6/16/2010 JX 0002-A Tr. 3

CX 2442-A 

E-mail from Rick Tatman to Leon McCullough and Jerry Jansen re: Price Announcement w/attach: Non-Domestic Draft B.docx; Non-Domestic Draft A.doc 6/16/2010 JX 0002-A Tr. 3

CX 2443 

E-mail from Laura Laura Alvey to Dan Todd; Greg Adams; et al re: Multiplier Change Announcement Non Domestic 6/17/2010 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 108 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2444 

E-mail from Rick Tatman to Vince Napoli, Debbie Vinson and Susan Welch re: FVV: Clarification on Sigma to Tyler/Union pricing 5/15/2008 JX 0002-A 

CX 2445 

E-mail from Dave Pietryga to M20 re: FW: Tyler Import Price Increase 12/22/2009 Tr. 3475:4-10 

CX 2446 

E-mail from Greg Fox to Russell Axon et al re: Sigma Fitting & Accessory Price Increase Announcement 12/31/2009 Tr. 3475:4-10 

CX 2447 E-mail from Rick Tatman to Tom Brakefield re: DIFRA 8/18/2008 

Tr. 554:2-4 JX 0002-A 

Tr. 5554:

CX 2448 E-mail from Tom Brakefield to Rick Tatman re: DIFRA 9/23/2008 

Tr. 556:17-19 JX 0002-A Tr. 5

CX 2449 Intentionally Not Used N/A CX 2450 

E-mail from Dave Pietryga to Brian Brian Ast et al re: FW: Tyler Price Increase 6/18/2010 Tr. 3475:4-10 Tr. 3

CX 2451 

E-mail from Greg Fox to Russell Axon et al re: Southeast Sales Team: F&A Price Increase 1/16/2009 Tr. 3475:4-10 

CX 2452 

E-mail from Greg Fox to Russell Axon et al re: FW: New Multiplier - Star Pipe Products 1/26/2009 Tr. 3475:4-10 

CX 2453 

E-mail from Michael Walsh to Harry Bair et al re: Price Increase Letter from Larry .. 6/10/2010 Tr. 3475:4-10 Tr. 3

CX 2454 

E-mail from Victor Pais to M20 re: VP to M20 : Tyler update 10/17/2008 Tr. 3475:4-10 

CX 2455 

Letter from Larry Rybacki to Sigma's Valued Customers re: January 2, 2008 Price Increase 12/20/2007 JX 0002-A 

Tr. 33623

CX 2456 

E-mail from Star Pipe Marketing Dept. to Tony Lesmeister re: New Multipliers - Star Pipe Products 6/27/2008 JX 0002-A 

CX 2457 

Letter from Larry Rybacki to Sigma's Valued Customers re: List Price Increase January 2, 2008 / Multiplier Increase November 5 2007 10/19/2007 JX 0002-A Tr. 1

CX 2458 

E-mail from Rick Tatman to Leon McCullough, Thomas Walton and Jerry Jansen re: Fitting Market - price 1/21/2009 JX 0002-A 

CX 2459 

E-mail from Jerry Jansen to Vince Napoli and Mike Snyder re: FW: Star - New Multipliers 12/30/2009 JX 0002-A 

CX 2460 

Spreadsheet: Sigma International Group Financial Records May 31, 2009 5/31/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2461 

Spreadsheet: Sigma International Group Financial Records June 30, 2009 6/30/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2462 

Spreadsheet: Sigma International Group Financial Records July 31, 2009 7/31/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

* Connotes an objection on hearsay grounds.Confidential 109 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2463 Spreadsheet: Sigma International Group Financial Records August 31, 2009 8/31/2009 Tr. 3475:4-10 Ordered 8/17/2012 CX 2464 

Spreadsheet: Sigma International Group Financial Records September 30, 2009 9/30/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2465 

Spreadsheet: Sigma International Group Financial Records October 31, 2009 10/31/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2466 

Spreadsheet: Sigma International Group Financial Records November 30, 2009 11/30/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2467 

Spreadsheet: Sigma International Group Financial Records December 31, 2009 12/31/2009 Tr. 3475:4-10 

Ordered 8/17/2012 

CX 2468 

McWane, Inc's Responses and Objections to Complain Counsel's First Set of Interrogatories 3/22/2012 JX 0002-A 

CX 2469 

Respondent McWane, Inc.'s Objections and Responses to Complaint Counsel's Request for Admissions 6/8/2012 JX 0002-A 

CX 2470 Spreadsheet: Star Financial Records 2008 00/00/0000 Tr. 2574:8-10 

Ordered 8/31/2012 

Tr. 22653

CX 2471 

E-mail from Pawan Sharda to Kirthi Jain re: 36 Months Gross Profit Trend.xlsx w/Attach: 36 Months Gross Profit Trend.xlsx 7/20/2011 JX 0002-A 

Ordered 8/31/2012 

CX 2472 Intentionally Not Used N/A CX 2473 

E-mail from Charlie Nowlin to Jody Hall re: Tyler Union Variance analysis 7/11/2008 JX 0002-A 

CX 2474 -CX 2475 Intentionally Not Used N/A CX 2476 Designated Deposition Transcript of Laura Alvey 5/31/2012 JX 0002-A CX 2477 Designated Deposition Transcript of Jerry Jansen 5/9/2012 JX 0002-A CX 2478 

Designated Investigational Hearing Transcript of Leon McCullough 8/12/2010 JX 0002-A 

CX 2479 Designated Deposition Transcript of Leon McCullough 5/22/2012 JX 0002-A CX 2480 Designated Deposition Transcript of Vince Napoli 5/30/2012 JX 0002-A CX 2481 Designated Deposition Transcript of Charlie Nowlin 5/29/2012 JX 0002-A CX 2482 Designated Deposition Transcript of Ruffner Page 5/24/2012 JX 0002-A CX 2483 

Designated Investigational Hearing Transcript of Rick Tatman 7/21/2010 JX 0002-A 

CX 2484 Designated Deposition Transcript of Rick Tatman 5/10/2012 JX 0002-A CX 2485 Designated Deposition Transcript of Thomas Walton 5/31/2012 JX 0002-A CX 2486 Designated Deposition Transcript of Jerry Burns 5/17/2012 JX 0002-A CX 2487 Designated Deposition Transcript of Mike Hays 5/17/2012 JX 0002-A CX 2488 Designated Deposition Transcript of Alan Backman 5/22/2012 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 110 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2489 

Designated Investigational Hearing Transcript of Ed Morrison 2/4/2011 JX 0002-A 

CX 2490 Designated Deposition Transcript of Ed Morrison 4/30/2012 JX 0002-A 

CX 2491 

Designated Investigational Hearing Transcript of Wayne Johnson 1/26/2011 JX 0002-A 

CX 2492 Designated Deposition Transcript of Wayne Johnson 5/14/2012 JX 0002-A CX 2493 Designated Deposition Transcript of Karen Fairbanks 4/17/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2494 Designated Deposition Transcript of Rick Fairbanks 4/17/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2495 

Designated Deposition Transcript of Tom Brakefield -Volume 1 5/4/2012 JX 0002-A 

CX 2496 

Designated Deposition Transcript of Tom Brakefield -Volume 2 5/4/2012 JX 0002-A 

CX 2497 Designated Deposition Transcript of Thad G. Long 5/31/2012 JX 0002-A CX 2498 Designated Deposition Transcript of Thomas Teske 5/17/2012 JX 0002-A CX 2499 Designated Deposition Transcript of Jim Keffer 5/15/2012 JX 0002-A CX 2500 Designated Deposition Transcript of Danny Swalley 5/2/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2501 

Designated Investigational Hearing Transcript of Peter Prescott 1/4/2011 JX 0002-A 

CX 2502 Designated Deposition Transcript of Peter Prescott 5/8/2012 JX 0002-A CX 2503 Designated Investigational Hearing Transcript of Bill Thees 11/16/2010 JX 0002-A 

CX 2504 Designated Deposition Transcript of Bill Thees 6/1/2012 JX 0002-A 

CX 2505 Designated Deposition Transcript of Charles Frazier 4/24/2012 JX 0002-A CX 2506 Designated Deposition Transcript of VJ Gupta 4/24/2012 JX 0002-A CX 2507 Designated Deposition Transcript of David Glidewell 4/26/2012 JX 0002-A CX 2508 Designated Deposition Transcript of Doug Kuhrts 5/24/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2509 

Designated Investigational Hearing Transcript of Michael Groeniger 12/14/2010 JX 0002-A 

CX 2510 Designated Deposition Transcript of Michael Groeniger 5/11/2012 JX 0002-A 

CX 2511 Designated Investigational Hearing Transcript of Roy Pitts 10/29/2010 JX 0002-A 

CX 2512 Designated Deposition Transcript of Roy Pitts 4/11/2012 JX 0002-A 

CX 2513 

Designated Investigational Hearing Transcript of Jerry Webb 11/9/2010 JX 0002-A 

CX 2514 Designated Deposition Transcript of Jerry Webb 5/30/2012 JX 0002-A 

* Connotes an objection on hearsay grounds.Confidential 111 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2515 

Designated Investigational Hearing Transcript of Dennis Sheley 1/11/2010 JX 0002-A 

Ordered 8/17/2012 

CX 2516 Designated Deposition Transcript of Dennis Sheley 4/24/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2517 Designated Deposition Transcript of Eddie Hall 5/8/2012 JX 0002-A CX 2518 Designated Deposition Transcript of Mark Meyer 5/14/2012 JX 0002-A CX 2519 Designated Deposition Transcript of Suvobrata Saha 5/11/2012 JX 0002-A CX 2520 Designated Deposition Transcript of Rick Haley 3/16/2012 JX 0002-A CX 2521 

Designated Investigational Hearing Transcript of Bharat Agarwal 6/4/2010 JX 0002-A 

Ordered 8/17/2012 

CX 2522 Designated Deposition Transcript of Bharat Agarwal 5/25/2012 JX 0002-A 

Ordered 8/17/2012 

CX 2523 Designated Deposition Transcript of Siddharth Bhattacharji 5/29/2012 JX 0002-A CX 2524 Designated Deposition Transcript of Stuart Box 5/2/2012 JX 0002-A CX 2525 

Designated Investigational Hearing Transcript of Matt Minamyer 11/10/2011 JX 0002-A 

CX 2526 Designated Deposition Transcript of Matt Minamyer 5/9/2012 JX 0002-A 

Ordered 8/31/2012 

CX 2527 

Designated Investigational Hearing Transcript of Victor Pais 7/23/2010 JX 0002-A 

CX 2528 Designated Deposition Transcript of Victor Pais 5/31/2012 JX 0002-A CX 2529 

Designated Investigational Hearing Transcript of Mitchell Rona 8/6/2010 JX 0002-A 

CX 2530 Designated Deposition Transcript of Mitchell Rona 5/18/2012 JX 0002-A 

CX 2531 Designated Deposition Transcript of Larry Rybacki 5/14/2012 JX 0002-A CX 2532 Designated Deposition Transcript of Michael Berry 6/1/2012 JX 0002-A CX 2533 Designated Deposition Transcript of Navin Bhargava 6/5/2012 JX 0002-A 

Ordered 8/31/2012 

CX 2534 

Designated Investigational Hearing Transcript of Ramesh Bhutada 10/12/2010 JX 0002-A 

Ordered 8/31/2012 

CX 2535 Designated Deposition Transcript of Ramesh Bhutada 5/14/2012 JX 0002-A 

Ordered 8/31/2012 

CX 2536 Designated Deposition Transcript of Leroy (Bud) Leider 5/31/2012 JX 0002-A 

Ordered 8/31/2012 

CX 2537 

Designated Investigational Hearing Transcript of Dan McCutcheon - Vol. 1 10/12/2010 JX 0002-A 

Ordered 8/31/2012 

CX 2538 

Designated Investigational Hearing Transcript of Dan McCutcheon - Vol. 2 5/4/2011 JX 0002-A 

Ordered 8/31/2012 

* Connotes an objection on hearsay grounds.Confidential 112 
Exhibit No. Description Date Also Referenced As Admissiblity In Camera Tria

CX 2539 Designated Deposition Transcript of Dan McCutcheon 5/16/2012 JX 0002-A 

Ordered 8/31/2012 

CX 2540 Designated Deposition Transcript of Pawan Sharda 5/15/2012 JX 0002-A 

Ordered 8/31/2012 

CX 2541 Designated Deposition Transcript of Gary Crawford 5/31/2012 JX 0002-A 

CX 2542 Designated Deposition Transcript of Tom Morton 5/30/2012 JX 0002-A CX 2543 

Designated Investigational Hearing Transcript of Mike Coryn 1/13/2011 JX 0002-A 

CX 2544 Designated Deposition Transcript of Mike Coryn 5/16/2012 JX 0002-A 

CX 2545 

Designated Investigational Hearing Transcript of Edward Gibbs 1/28/2011 JX 0002-A 

CX 2546 Designated Deposition Transcript of Edward Gibbs 5/29/2012 JX 0002-A 

CX 2547 Designated Deposition Transcript of Lee Ann Ewing 4/24/2012 JX 0002-A CX 2548 -CX 2551 Intentionally Not Used N/A CX 2552 

Email from Lavery to Bloom, Balbach and Holleran re: RE: Questions re McWane Spreadsheet w/ attachment Line 125255 of McWane 007681.xlsx 6/5/2012 Tr. 6038:11-13 

Tr. 56038

CX 2553 -CX 2555 Intentionally Not Used N/A CX 2556 Tyler Pipe/Union Foundry Utilities Domestic Multiplier Map 2/27/2006 JX 0002-A CX 2557 

Tyler Pipe/Union Foundry Utilities Blended Fittings Multiplier Map 12/18/2006 JX 0002-A 

CX 2558 Domestic Fittings (3" - 12") Multiplier Map LP-5091 5/1/2009 JX 0002-A 

CX 2559 Domestic Fittings (3" - 12") Multiplier Map LP-5091 1/22/2010 JX 0002-A CX 2560 Domestic Fittings Multiplier Map LP20116 3/14/2011 JX 0002-A CX 2561 Domestic Fittings Multiplier Map LP20116 2/10/2012 JX 0002-A CX 2562 Tyler Pipe/Union Foundry Form LP-5072 List Prices 7/2/2007 JX 0002-A 

CX 2563 Tyler Union Form LP-5091 List Prices 5/1/2009 JX 0002-A CX 2564 Native Excel Spreadsheets JX 0002-A CX 2565 E-mail from W. Lavery to M. Bloom re: D.C. Multipliers 5/14/2012 JX 0002-A CX 2566 

E-mail from W. Lavery to L. Holleran, M. Bloom re: Column heading descriptions 5/3/2012 JX 0002-A 

CX 2567 

Spreadsheet: Top 46 Star Domestic Products Edited for Input JX 0002-A 

CX 2568 

Spreadsheet: McWane and Star Price by Ton by size -Fixed Basket JX 0002-A 

CX 2569 Intentionally Not Used N/A 

* Connotes an objection on hearsay grounds.Confidential 113 
Exhibit No. Description Date 

Also Referenced 

As Admissiblity In Camera Tria

CX 2570 Star Special Pricing Requests Chart Tr. 2687:9-11 

Tr. 22687

CX 2571 -CX 3026 Intentionally Not Used N/A CX 3027 E-mail from Rick Tatman to Jerry Jansen re: Fowler/Sigma 4/30/2009 Tr. 815:11-13 Tr. 8CX 3028 -CX 3032 Intentionally Not Used N/A CX 3033 Star Form S-6 HD Supply #124 2/27/2008 Tr. 2675:11-13 Tr. 2

CX 3034 -CX 3040 Intentionally Not Used N/A 

CX 3041 Star Form S-6 First Supply 6/26/2008 Tr. 2677:12-14 Tr. 2CX 3042 Star Form S-6 HD Supply #520 7/1/2008 Tr. 2687:21-23 

Tr. 22687

CX 3043 -CX 3059 Intentionally Not Used N/A CX 3060 

Screenshot from McWane Website <www.mcwanebuyamerican.com/why-buy-american> N/A Tr. 5651:16-18 Tr. 5

CX 3061 

Report linked to from McWane Website: Alliance for American Manufacturing, "Buy American Works: Longstanding United States Policy Enhances the Job Creating Effect of Government Spending." February 2010. N/A 

Conditionally Admitted Tr. 5652:2-3 Tr. 5

Demonstrative Exhibits: 

CXD 3085-A 

Dr. Schumann's Demonstrative Exhibit discussing Expert Rebuttal Report (public) 00/00/0000 Tr. 6041:21-22 

Tr. 55952

* Connotes an objection on hearsay grounds.Confidential 114 
COMPLAINT COUNSEL’S WITNESS INDEX 

PUBLIC RECORD
IN THE MATTER OF MCWANE, INC. DOCKET NO. 9351 

COMPLAINT COUNSEL'S WITNESS INDEX 

NAME TITLE COMPANY 

TRANSCRIPT CITE 

** TOTAL ** 

TRANSCRIP

**IN CAME

Complaint Counsel's Opening Statements N/A N/A Tr. 11:23 - 108:02 N/A 

Richard Tatman 

Vice President & General Manager McWane / TylerUnion Tr. 206:22 - 1080:24 

Tr. 844:01 - 862:Tr. 991:04 - 1032Tr. 1036:04 - 104

Lawrence Rybacki President Sigma Corporation 

Tr. 1082:01 - 1142:11 Tr. 3482 - 3745 

Tr. 3598:23 - 367Tr. 3732:13 - 374

Suvorata "Steve" Saha President NACIP, Inc. Tr. 1151:15 - 1211:7 N/A Tommy Brakefield Consultant Self-Employed Tr. 1212:11 - 1430:7 N/A 

Mitchell Rona Vice President of Operations Sigma Corporation Tr. 1437:10 - 1720:12 N/A 

Victor Pais Former President & CEO Sigma Corporation Tr. 1721:1 - 2232:8 Tr. 2189:4 - 2227

Dan McCutcheon President Star Pipe Products Tr. 2246:14 - 2693:6 

Tr. 2437:4 - 24512467:4 - 2483:152504:14; 2640:3 

Jerry Webb CEO of Waterworks Division HD Supply Tr. 2694:5 - 2805:21 N/A 

Thomas Morton 

Former Vice President of Purchasing US Pipe & Foundry Tr. 2806:7 - 2916:16 N/A 

Navin Bhargava Executive Vice President Star Pipe Products Tr. 2917:1 - 3031:22 

Tr. 2930:1 - 29802989:4 - 3032:5 

William (Bill) Thees Vice President of Waterworks Ferguson Enterprises Tr. 3032:15 - 3120:18 N/A 

Matthew Minamyer 

National Sales Manager of the Piping Products Division Sigma Corporation Tr. 3127:10 - 3290:11 N/A 

Roy Pitts Director of Vendor Relations Hajoca Corporation Tr. 3290:19 - 3367:5 N/A 

Dennis Sheley President & Owner 

Illinois Meter/IMCO Utility Supply Tr. 3375:13 - 3464:23 Tr. 3427:4 - 3435
NAME TITLE COMPANY TRANSCRIPT CITE ** TOTAL ** TRANSCRIP

**IN CAME

Dr. Laurence Schumann 

Complaint Counsel's Economic Expert FTC 

Tr. 3753:15 - 4709:25; 5786:6 - 6036:5 

Tr. 5919:4 - 59295931:4 - 5951:14

Dr. Parker M. Normann Respondent's Economic Expert Edgeworth Economics Tr. 4720:21 - 5785:22 

Tr. 5012:4 - 50705664:4 - 5716:235727:4 - 5772:215775:4 - 5783:16 
 

 

 

 

PUBLIC RECORD

CERTIFICATE OF SERVICE 

I hereby certify that on December 19, 2012, I filed the foregoing document 

electronically using the FTC’s E-Filing System, which will send notification of such 

filing to: 

Donald S. Clark 

Secretary 

 Federal Trade Commission 

600 Pennsylvania Ave., NW 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail a copy of the foregoing document 

to: 

The Honorable D. Michael Chappell 

 Administrative Law Judge 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-110 

 Washington, DC 20580 

 I further certify that I delivered via electronic mail a copy of the foregoing 

document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 
 

 

PUBLIC RECORD

CERTIFICATE FOR ELECTRONIC FILING 

 I certify that the electronic copy sent to the Secretary of the Commission is a true 

and correct copy of the paper original and that I possess a paper original of the signed 

document that is available for review by the parties and the adjudicator. 

December 19, 2012 By: s/ Thomas H. Brock 

Attorney