UNITED STATES OF AMERICA OR'G'N~l 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRA TIVE LAW JUDGES 

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In the Matter of
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McWANE, INC.,
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a corporation, and DOCKET NO. 9351
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STAR PIPE PRODUCTS, LTD., )


a limited partnership,
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Respondents.
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ORDER DENYING RESPONDENT'S MOTION TO DISMISS
 

AT THE CLOSE OF EVIDENCE OFFERED
 

IN SUPPORT OF THE COMPLAINT
 

I. 

The Complaint in this matter brings seven counts against Respondent McWane, Inc. 

("Respondent"), including charges that Respondent violated Section 5 ofthe Federal Trade 

Commission Act ("FTC Act"), 15 U.S.C. § 45, by conspiring to restrain trade (Counts 1,2 and 

4); inviting collusion (Count 3); conspiring to monopolize (Count 5); and engaging in 

exclusionary conduct in furtherance of 
 monopolization (Count 6) or attempted monopolization 

(Count 7). 

Unfair methods of competition under Section 5 of the FTC Act include any conduct that 

would violate Sections 1 or 2 of the Sherman Act. See, e.g., California Dental Assn. v. FTC, 526 

U.S. 756, 762 & n.3 (1999); FTC v. Cement Inst., 333 U.S. 683, 691-92 (1948); Rambus Inc. v. 

FTC, 522 F.3d 456,462 (D.C. Cir. 2008). Section 1 of 
 the Sherman Act prohibits "every 

contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or 

commerce among the several States. . .." 15 U.S.C. § 1. Thus, a Section 1 violation requires 

proof of the existence of a contract, combination, or conspiracy among two or more separate 

entities, that unreasonably restrains trade in the relevant market. Valuepest.com of 
 Charlotte, 

Inc. v; Bayer Corp., 561 F.3d 282,286 (4th Cir. 2009); Law v. NCAA, 134 F.3d 1010, 1016 (10th 

Cir. 1998). A Section 2 violation requires proof of "(1) the possession of monopoly power in 

the relevant market and (2) the wilful acquisition or maintenance of that power as distinguished 

from growth or development as a consequence of a superior product, business acumen, or 

historic accident." United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). Attempted 

monopolization requires proof: "(1) that the defendant has engaged in predatory or 

anti competitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability 
of achieving or obtaining monopoly power." Spectrum Sports, Inc. v. McQuilan, 506 U.S. 447, 

456 (1993). 

Trial in this matter commenced on September 4,2012. On October 18, 2012, Complaint 

Counsel rested. On October 19,2012, Respondent, on the record at trial, made an oral motion 

for judgment as a matter oflaw. Complaint Counsel opposed the motion on October 19,2012. 

As set forth below, Respondent's motion is DENIED. 

II. 

Respondent stated that it recognizes that a motion for judgment as a matter oflaw is 

unorthodox under the Commission's Rules of 
 Practice and urged its motion pursuant to 

Commission Rule 3.41 
 (c), which provides that each party shall have the rights "essential to a fair hearing." 16 C.F.R. § 3.41(c). In support of 
 its motion, Respondent argued that the government 

at the close of its case had failed to meet its burden of proof on any of the counts in the 

Complaint. Trial VoL. 22 (Oct. 19,2012), Tr. 4716. 

Complaint Counsel argued in response that the Commission's Rules do provide for the 

filing ofa motion to dismiss at the close of the governent's case in Commission Rule 3.22(a).
 

Complaint Counsel further argued that it believes it has presented a prima facie case on each of 

the counts of 
 the Complaint. Trial VoL. 22 (Oct. 19,2012), Tr. 4719. 

Respondent's motion for judgment as a matter oflaw, to the extent allowed under Rule
 

3.41(c), was denied on the record on October 19, 2012. Trial VoL. 22 (Oct. 19,2012), Tr. 4720.
 

The motion is next considered under Commission Rule 3.22(a).
 

Rule 3.22(a) of the Commission's Rules of Practice sets forth: 

When a motion to dismiss is made at the close of the evidence offered in support 

of the complaint based upon an alleged failure to establish a prima facie case, the 

Administrative Law Judge shall defer ruling thereon until immediately after all 

evidence has been received and the hearng record is closed. 

16 C.F.R. § 3.22(a). Although Respondent's motion was made at the close of 
 the governent's 

case, Rule 3.22(a) requires the Administrative Law Judge to defer ruling on such motion until 

after all evidence has been received and the hearing record is closed. The record closed on 

November 7,2012. 

Based on the evidentiary record, and having considered the positions of the paries, 

Respondent failed to demonstrate that the Complaint should be dismissed for failure to establish 

a prima facie case. The issues raised by the Motion, to the extent necessary or appropriate with 

regard to a determination of the merits for the initial decision in this case, and to the extent 

briefed by the parties in their post-hearing briefs, wil be addressed in the initial decision when 

issued. See, e.g., In re Chicago Bridge & Iron Co., 2003 FTC LEXIS 28, *2-3 (Jan. 28, 2003); 

In re Porter & Dietsch, 90 F.T.C. 770, 1977 FTC LEXIS 11 (Dec. 20, 1977).
 

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III.
 

Accordingly, Respondent's Motion is DENIED.
 

ORDERED: J: \1, cl ~t.~2,­

D. Michael Chapp;!r 

Chief Administrative Law Judge 

Date: November 7, 2012 

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