__________________________________________ 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

J. Thomas Rosch 

 Edith Ramirez

 Julie Brill

 Maureen K. Ohlhausen 

) PUBLIC 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation. ) 

__________________________________________) 

COMPLAINT COUNSEL’S MOTION 

FOR PARTIAL SUMMARY DECISION 

06 08 2012 

Richard A. Feinstein 

Director 

Peter J. Levitas 

Deputy Director 

Melanie Sabo 

Assistant Director 

Geoffrey M. Green

Deputy Assistant Director 

Edward D. Hassi 

Chief Trial Counsel 

Michael J. Bloom 

Jeanine Balbach 

Office of Policy & Coordination 

Dated: June 8, 2012 

Linda Holleran 

Thomas H. Brock 

J. Alexander Ansaldo 

Andrew Mann 

Monica Castillo 

Attorneys 

Federal Trade Commission 

Bureau of Competition

Anticompetitive Practices Division

600 Pennsylvania Ave., N.W. Washington, DC 20580

Telephone: (202) 326-2470

Facsimile: (202) 326-3496 

Email: ehassi@ftc.gov 

Counsel Supporting the Complaint 

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COMPLAINT COUNSEL’S MOTION FOR PARTIAL SUMMARY DECISION 

AND [PROPOSED] ORDER 

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 

Please take notice that, pursuant to Commission Rule 3.24, Complaint Counsel hereby 

respectfully move for a partial summary decision in this action. For the reasons set forth in the 

accompanying Memorandum, this Motion should be granted. 

By this Motion, Complaint Counsel seek a partial summary decision in their favor that 

McWane, Inc. (“McWane”), along with its competitor Star Pipe Products, Ltd. (“Star”), 

unlawfully restrained price competition in the ductile iron pipe fittings (“Fittings”) market in 

April 2009. In April 2009, McWane announced a new Fittings price list. Subsequently, senior 

executives of McWane and Star had a telephone conversation during which Star sought 

assurances that McWane would implement its announced price list, and McWane provided those 

assurances. Subsequently, Star followed McWane’s Fittings price list changes by adopting a 

substantially identical price list. 

McWane and Star thereby unlawfully restrained price competition in the Fittings market, 

and partial summary judgment should be entered accordingly, for the reasons set forth in the 

accompanying Memorandum. This Motion is supported by the accompanying Memorandum and 

the authorities cited therein; the witness testimony and exhibits attached to the Declaration of 

Edward D. Hassi, and the accompanying separate statement of undisputed facts. 

Complaint Counsel do not seek summary decision as to the remaining allegations of the 

Commission’s Complaint, including the alleged concerted action involving McWane between 

January 2008 and January 2009. Complaint Counsel request entry of an Order granting partial 

summary decision on McWane’s unlawful restraint of price competition in April and May 2009 

and directing Chief Administrative Law Judge Chappell to receive evidence and issue an initial 

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decision on all of the remaining factual and legal allegations in the Commission’s Complaint, 

including those allegations relating to the price competition restraints by McWane alleged in the 

Complaint. A Proposed Order is attached. 

 Respectfully submitted, 

 s/ Edward D. Hassi

 Edward D. Hassi

 Federal Trade Commission

 600 Pennsylvania Ave. NW 

 Washington, D.C. 

(202) 326-2470 

Counsel Supporting the Complaint 

Dated: June 8, 2012 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 8, 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, Rm. H-113 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery 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. 

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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.

 s/ Thomas H. Brock 

 Thomas H. Brock

 Federal Trade Commission

 600 Pennsylvania Ave. NW 

 Washington, D.C. 

(202) 326-2813 

 Counsel Supporting the Complaint 

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____________________________________

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 UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

) 

) 

In the Matter of ) 

) DOCKET NO. 9351 

McWANE, INC. )

 ) 

Respondent. ) 

____________________________________) 

[PROPOSED] ORDER 

Having carefully considered Complaint Counsel’s Motion for Partial Summary Decision, 

McWane Inc.’s (“McWane”) Opposition thereto, and Complaint Counsel’s Reply, and all 

supporting and opposing declarations and other evidence, and the applicable law, it is hereby 

ORDERED AND ADJUDGED, that McWane unlawfully restrained price competition in April 

2009, and Complaint Counsel’s Motion for Partial Summary Decision as to this issue is hereby 

GRANTED. 

Chief Administrative Law Judge Chappell is hereby directed to receive and consider all 

of the parties’ evidence on all other factual and legal allegations in the Administrative 

Complaint, specifically including the allegations of concerted action by McWane and others 

between January of 2008 and January 2009, and to issue an initial decision on all such 

allegations. See Section 3.24(a)(5) of the Commission’s Rules of Practice, 16 C.F.R. § 

3.24(a)(5); Complaint ¶¶ 28-38. 
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ORDERED: 

By the Commission.

 ______________________ 

Donald S. Clark 

Secretary 

SEAL 

ISSUED: 
 

__________________________________________ 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

J. Thomas Rosch 

 Edith Ramirez

 Julie Brill

 Maureen K. Ohlhausen 

) PUBLIC 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation. ) 

__________________________________________) 

COMPLAINT COUNSEL’S MEMORANDUM IN SUPPORT OF 

MOTION FOR PARTIAL SUMMARY DECISION 

Richard A. Feinstein Linda Holleran 

Director Thomas H. Brock 

J. Alexander Ansaldo 

Peter J. Levitas Andrew Mann 

Deputy Director Monica Castillo 

Attorneys

Melanie Sabo 

Assistant Director Federal Trade Commission 

Bureau of Competition

Geoffrey M. Green Anticompetitive Practices Division

Deputy Assistant Director 600 Pennsylvania Ave., N.W.

Washington, DC 20580

Edward D. Hassi Telephone: (202) 326-2470

Chief Trial Counsel Facsimile: (202) 326-3496 

Email: ehassi@ftc.gov 

Michael J. Bloom 

Jeanine Balbach 

Office of Policy & Coordination Counsel Supporting the Complaint 

Dated: June 8, 2012 
TABLE OF CONTENTS
 

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I. Introduction......................................................................................................................... 1
 

II. Statement of Facts ................................................................................................................ 2
 

III. Standard for Partial Summary Decision .............................................................................. 5
 

IV. Argument ............................................................................................................................. 5
 

A. Analytical Framework for Output Reducing Horizontal Agreements ............................. 6
 

B. McWane and Star Conspired in April 2009 ..................................................................... 7
 

C. Summary Decision on McWane’s Price Fixing is Appropriate ..................................... 10
 

V. Conclusion ......................................................................................................................... 12
 

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TABLE OF AUTHORITIES
 

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Cases 

Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332 (1982) ................................................... 12 

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993)........................ 9 

Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717 (1988)................................................ 9 

Carr Office Park, LLC v. Charles Schwab & Co., 2006 U.S. Dist. LEXIS 96320, 

(D. Colo., June 8, 2006)............................................................................................................ 12 

Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643 (1980)........................................................ 8, 12 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................. 12 

Costco Wholesale Corp. v. Maleng, 522 F.3d 874 (9th Cir. 2008) ................................................ 8 

Energex Lighting Industries, Inc. v. North American Philips Lighting Corp., 

765 F. Supp. 93 (S.D.N.Y. 1991)................................................................................................ 8 

Esco Corp. v. United States, 340 F.2d 1000 (9th Cir. 1965) .......................................................... 7 

Fireman's Ins. Co. of Newark, N. J. v. Dufresne, 676 F.2d 965 (3d Cir. 1982) ........................... 11 

G-I Holdings, Inc. v. Baron & Budd, 2003 U.S. Dist. LEXIS 20603 

(S.D.N.Y., November 21, 2003) ............................................................................................... 12 

In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651 

(7th Cir. 2002) (Posner, J.).................................................................................................... 6, 11 

In re North Carolina State Board of Dental Examiners, 151 F.T.C. 607 (2011)........................... 5 

In re North Texas Specialty Physicians, 140 F.T.C. 715 (2005) .................................................... 6 

In re Polygram Holding, Inc., 136 F.T.C. 310 (2003), aff'd, Polygram 

Holding, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 2005.................................................................... 6 

Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984) .................................................. 5 

Nash v. United States, 229 U.S. 373 (1913) ................................................................................... 6 

Plymouth Dealers’ Ass’n of Northern California v. United States, 279 F.2d 128 

(9th Cir. 1960)....................................................................................................................... 6, 11 

Realcomp II, Ltd. v. FTC, 635 F.3d 815 (6th Cir. 2011) ................................................................ 5 

Sugar Institute v. United States, 297 U.S. 553 (1936) ........................................................... passim
 

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TFWS, Inc. v. Schaefer, 242 F.3d 198 (4th Cir. 2001).................................................................... 8 

United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940)..................................................... 6 

United States v. Trenton Potteries Co., 273 U.S. 392 (1927)................................................... 6, 11 

Statutes 

16 C.F.R. § 3.24(a)(1)..................................................................................................................... 4 

16 C.F.R. § 3.24(a)(2)..................................................................................................................... 4 

16 C.F.R. § 3.24(a)(5)..................................................................................................................... 1 

16 C.F.R. §3.24(a)(3)...................................................................................................................... 5 

Section 1 of the Sherman Act ....................................................................................................... 10 

Section 1 of the Sherman Act (15 U.S.C. § 1)................................................................................ 7 

Other Authorities 

George J. Stigler, A Theory of Oligopoly, 72 J. Pol. Econ. 44 (1964) ............................................ 9 

Jonathan B. Baker, Two Sherman Act Section 1 Dilemmas: Parallel Pricing, The Oligopoly 

Problem, and Contemporary Economic Theory, 38 Antitrust Bull. 143, 179 & n. 73 (1993) . 10 

Treatises 

HERBERT HOVENKAMP, ANTITRUST LAW § 1407 (3d ed. 2003)................................................. 7, 9 

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I. Introduction 

The ductile iron pipe fittings industry is highly concentrated. The top three suppliers, 

McWane, Sigma, and Star, collectively represent at least percent of all sales of ductile iron 

pipe fittings (“Fittings”). All three suppliers generally use virtually identical Fitting list prices 

that are typically announced first by one of the three, and quickly followed by the other two. 

This parallel pricing behavior, by itself, does not violate the antitrust laws. But this motion 

addresses a direct communication between McWane and Star in which they went beyond merely 

following each other’s prices and instead exchanged assurances about their future prices. 

It is undisputed that in April 2009, 

After 

McWane announced it was changing its list prices, but before those prices became effective, 

Sigma announced it would not follow McWane, but would continue to use the then prevailing 

price list. 

 This agreement to adhere to the previously announced list price is a per se violation of the 

Sherman Act. 

Complaint Counsel move for partial summary decision as to this specific concerted action 

between McWane and Star during the conspiratorial period alleged in the Complaint. 

Specifically, Complaint Counsel respectfully request a ruling that McWane conspired to restrain 

price competition in April and May of 2009. Complaint Counsel do not request summary 

decision as to the concerted action alleged in the Complaint between January of 2008 and 

January 2009, and intend to enter evidence supporting those allegations at trial regardless of the 

Commission’s ruling on this motion. See Hassi Decl. Tab 1 (Compl. ¶¶ 28-38); 16 C.F.R. § 

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3.24(a)(5) (outlining procedure for summary decision on a portion of the allegations in the 

complaint). 

II. Statement of Facts 

McWane, Inc. (“McWane”) manufactures and sells Fittings in interstate commerce. See 

Sigma Corporation (“Sigma”) in the sale of Fittings. See Hassi Decl. 

 The fittings market is highly concentrated, with McWane, Sigma and Star representing 

the vast majority of sales. See Hassi Decl. 

Fittings are commodity products that are produced pursuant to industry-wide standards. 

See Hassi Decl. Tab 2 (Answer ¶ 27(a)). As a result, price competition is an important element 

of competition among suppliers of fittings. See Hassi Decl. 

Hassi Decl. Tab 2 (Answer ¶ 10). McWane competes with Star Pipe Products, Ltd. (“Star”) and 

Fittings suppliers, including McWane, publish price lists that set forth individual prices for each 

specific fitting; and then generally quote prices to customers that are based on a published 

percentage discount from those list prices, known as a “multiplier.” See Hassi Decl. 

On April 15, 2009, McWane announced a new price list, to be effective May 1, 2009 

(“Announced Price List”). See Hassi Decl. The Announced Price List 

contained higher prices for small diameter fittings and lower prices for medium and large 

diameter fittings. See Hassi Decl. 

On April 22, 2009, Star 

announced its intent to change its price list, effective May 19, 2009, but did not specify whether 

it would match McWane’s Announced Price List. See Hassi Decl. 

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Subsequently, Star followed McWane’s Announced Price List by adopting a substantially 

identical Fittings price list. Hassi Decl. 

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III. Standard for Partial Summary Decision 

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Commission Rule 3.24 provides that “[a]ny party ... may move ... for a summary decision 

in the party’s favor upon all or any part of the issues being adjudicated.” 16 C.F.R. § 3.24(a)(1). 

Rule 3.24 further provides that if the Commission determines that there is no genuine issue as to 

any material fact regarding liability or relief, it shall issue a final decision and order. 16 C.F.R. § 

3.24(a)(2). 

When a motion for summary decision is made and adequately supported, “a party 

opposing the motion may not rest upon the mere allegations or denials of his or her pleading; the 

response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing 

that there is a genuine issue of material fact for trial.” 16 C.F.R. §3.24(a)(3). Once the moving 

party has adequately supported its motion, the nonmoving party must “do more than simply 

show that there is some metaphysical doubt as to the material facts.” In re North Carolina State 

Board of Dental Examiners, 151 F.T.C. 607, 611 (2011) (internal citations and quotation marks 

omitted). The non-moving party must instead establish “specific facts showing that there is a 

genuine issue for trial.” Id. (internal citations and quotation marks omitted); see also 16 C.F.R. § 

3.24(a)(3). And “[w]here the record taken as a whole could not lead a rational trier of fact to 

find for the nonmoving party, there is no ‘genuine issue for trial.’” North Carolina State Board, 

151 F.T.C. at 611 (internal citations and quotation marks omitted). 

IV. Argument 

 There is no genuine issue of material fact that McWane and Star unlawfully restrained 

price competition in April 2009, and partial summary decision should be granted to this effect. 

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A. Analytical Framework for Output Reducing Horizontal Agreement 

An unlawful horizontal agreement occurs when there is (i) an agreement among 

competitors that (ii) restrains trade unreasonably. E.g., Realcomp II, Ltd. v. FTC, 635 F.3d 815, 

824 (6th Cir. 2011). A horizontal agreement is proven when there is evidence that competitors 

shared a “conscious commitment to a common scheme designed to achieve an unlawful 

objective.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 768 (1984) (internal 

citation and quotation marks omitted). 

With respect to the restraint of trade element, “the evaluation of horizontal restraints 

takes place along an analytical continuum in which a challenged practice is examined in the 

detail necessary to understand its competitive effect.” In re Polygram Holding, Inc., 136 F.T.C. 

310, 336 (2003), aff'd, Polygram Holding, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 2005). “Under 

the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, 

fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is 

illegal per se.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 (1940); see also In 

re North Texas Specialty Physicians, 140 F.T.C. 715, 729 (2005) (“We do not believe that the 

per se condemnation of naked restraints has been affected by anything said either in California 

Dental or Polygram”). 

An agreement between horizontal competitors to fix prices is itself a violation of the 

antitrust laws. There is no requirement that the conspirators have the ability to achieve their 

unlawful ends or tale any overt acts in furtherance of the conspiracy. Socony-Vacuum, 310 U.S. 

at 224-25 n.59; United States v. Trenton Potteries Co., 273 U.S. 392, 402 (1927); Nash v. United 

States, 229 U.S. 373, 378 (1913). Agreements on list prices are per se unlawful even if list 

prices are only the starting point in negotiations with customers. In re High Fructose Corn 

Syrup Antitrust Litig., 295 F.3d 651, 656 (7th Cir. 2002) (Posner, J.); Plymouth Dealers’ Ass’n of 

Northern California v. United States, 279 F.2d 128, 130-33 (9th Cir. 1960). Agreements to 

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adhere to published price levels are also per se unlawful, even when those price levels were set 

unilaterally. Sugar Institute v. United States, 297 U.S. 553, 580-81, 601 (1936). 

B. McWane and Star Agreed to Fix Prices in April 2009 

The undisputed evidence of 

 establishes an agreement under Section 1 of 

the Sherman Act, 15 U.S.C. § 1. It is undisputed that 

This bargained-for 

exchange of express assurances firmly establishes an agreement under Section 1. See, e.g., Esco 

Corp. v. United States, 340 F.2d 1000, 1007-8 (9th Cir. 1965) (finding such an express exchange 

of oral assurances unnecessary to establish an agreement); see also HERBERT HOVENKAMP, 

ANTITRUST LAW § 1405(a) (“Clearly sufficient [evidence of agreement] would be explicit, 

personally expressed reciprocal assurances of common action”). 

The Supreme Court’s decision in Sugar Institute, 297 U.S. 553, offers controlling 

precedent. In Sugar Institute, the Court examined the rules of a combination of competing sugar 

refiners, including a rule that required firms that announced a price increase to adhere to that 

increase for a period of time. Id. at 582 (describing “a requirement of adherence, without 

deviation, to the prices and terms publically announced”). There was no requirement in the rules 

of the Sugar Institute that price increases be reported or agreed to among competitors before 

being announced, there was no guarantee that rivals would follow announced increases, and the 

evidence showed that price changes taken by one firm were often not followed by its rivals. Id. 

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at 580-82. The Court nevertheless condemned the “steps taken to secure adherence, without 

deviation, to prices and terms thus announced. It was that concerted undertaking which cut off 

opportunities for variation in the course of competition [.]” Id. at 601. 

Sugar Institute established the longstanding rule that an agreement to adhere to 

previously announced prices and terms of sale is unlawful per se under the Sherman Act, “even 

though advance price announcements are perfectly lawful and even though the particular prices 

and terms were not themselves fixed by private agreement.” Catalano, Inc. v. Target Sales, Inc., 

446 U.S. 643, 647 (1980) (per curiam) (discussing Sugar Institute, 297 U.S. 553); Costco 

Wholesale Corp. v. Maleng, 522 F.3d 874, 895-96 (9th Cir. 2008) (“an agreement to adhere to 

posted prices is a per se violation[,]” explaining that “agreements to adhere to posted prices are 

anticompetitive because they are highly likely to facilitate horizontal collusion”); TFWS, Inc. v. 

Schaefer, 242 F.3d 198, 209 (4th Cir. 2001) (“agreements to adhere to previously announced 

prices are unlawful per se”); Energex Lighting Industries, Inc. v. North American Philips 

Lighting Corp., 765 F. Supp. 93, 106-107 (S.D.N.Y. 1991) (“An agreement that a published 

price list will be adhered to is a violation of the Sherman Act because it interferes with the 

setting of prices by free market forces”). 

The Court’s decision in Sugar Institute is soundly grounded in fundamental cartel theory. 

Firms seeking to fix prices must (i) reach consensus on the prices to be charged; (ii) monitor 

adherence to those prices; and (iii) have the ability to punish defection. See George J. Stigler, A 

Theory of Oligopoly, 72 J. Pol. Econ. 44 (1964). Agreements to adhere to already-announced 

prices facilitate the process of reaching consensus by eliminating uncertainty among rivals as to 

future prices. See Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 727 (1988) 

(“Cartels are neither easy to form nor easy to maintain. Uncertainty over the terms of the cartel, 

particularly the prices to be charged in the future, obstructs both formation and adherence by 

making cheating easier.”); Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 

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209, 238 (1993) (“Uncertainty is an oligopoly’s greatest enemy.”); see also ANTITRUST LAW § 

1407(e)) (“Uncertainty is the most general of the impediments to cartel-like results in oligopoly. 

It follows that collective practices to reduce such uncertainty ... are dangerous to competition”). 

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The undisputed evidence here further illustrates how communications can facilitate 

collusion by providing conspirators with a “focal point” on which to coordinate their prices. See 

Jonathan B. Baker, Two Sherman Act Section 1 Dilemmas: Parallel Pricing, The Oligopoly 

Problem, and Contemporary Economic Theory, 38 Antitrust Bull. 143, 179 & n. 73 (1993) 

coordination by helping firms establish an equilibrium outcome as focal”). 

(explaining how the private exchange of “mere assurances . . . may nevertheless facilitate 

 Baker, Two Sherman Act Section 1 Dilemmas, 38 Antitrust Bull. at 179 (“[b]y 

raising the costs of reaching such complex bargains, antitrust law hopes to reduce the prevalence 

of such bargains”). 

should be condemned under Sugar Institute. As in 

Sugar Institute, 

As in Sugar 

Institute, the exchange of assurances facilitated price coordination and “cut off opportunities for 

variation in the course of competition[.]” Sugar Inst., 297 U.S. at 601. In fact, this case is 

stronger than Sugar Institute: 

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 This negotiated elimination of uncertainty as to future prices is 

precisely the type of agreement forbidden per se by Section 1 of the Sherman Act. See Sugar 

Institute, 297 U.S. at 601 (condemning agreement to adhere to published prices that “cut off 

opportunities for variation in the course of competition”). 

C. Summary Decision on McWane’s Price Fixing is Appropriate 

Summary condemnation of the is appropriate because no 

additional facts beyond the evidence of the communication itself are necessary to establish the 

violation. “Because price fixing is a per se violation of the Sherman Act, an admission by the 

defendants that they agreed to fix their prices is all the proof a plaintiff needs.” High Fructose 

Corn Syrup, 295 F.3d at 654. Accordingly, the Commission should not inquire further into the 

effects of the McWane/Star Communication: “[O]nce the agreement to fix a price is made, it is 

conclusively presumed that a conspiracy to restrain trade exists, and it is ‘immaterial whether the 

agreements were ever actually carried out, whether the purpose of the conspiracy was 

accomplished in whole or in part, or whether an effort was made to carry the object of the 

conspiracy into effect.’” Plymouth Dealers’ Ass’n, 279 F.2d at 132 (citing Trenton Potteries, 

273 U.S. at 402). 

The existence and contents of the are undisputed. 

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E.g., Fireman's Ins. Co. of Newark, N. J. v. Dufresne, 

676 F.2d 965, 969 (3d Cir. 1982) (holding that a party's denial of knowledge of facts, without an 

offering of evidence to call into question the summary judgment movant's evidence, is not 

sufficient to create a material issue of fact). failure of recall is at most an 

absence of evidence – and the absence of evidence in support of the non-movant’s case entitles 

the moving party to summary decision as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 

317, 325 (1986) (“the burden on the moving party may be discharged by ‘showing’ – that is, 

pointing out to the district court – that there is an absence of evidence to support the nonmoving 

party's case”); Carr Office Park, LLC v. Charles Schwab & Co., 2006 U.S. Dist. LEXIS 96320, 

at *10 & n.2 (D. Colo., June 8, 2006) (“Ask any first-year law student: an absence of knowledge 

is insufficient to controvert a summary judgment movant’s factual assertions . . .. That is why 

we have discovery.”) (internal citation omitted); G-I Holdings, Inc. v. Baron & Budd, 2003 U.S. 

Dist. LEXIS 20603, at *15 (S.D.N.Y., November 21, 2003) (“failure to recall . . . [is] not, 

without more . . . sufficient to survive summary judgment once discovery is complete”). 

Supreme Court precedent makes clear that summary judgment for the plaintiff 

proceeding on a price fixing theory may be appropriate. In Arizona v. Maricopa County Med. 

Soc’y, 457 U.S. 332 (1982), the Court reviewed the decision of an appellate panel to deny partial 

summary judgment after limited discovery on a per se theory to agreements among competing 

physicians to “to abide by maximum fee schedules[.]” Id. at 337. Because “the undisputed facts 

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disclose[d] a violation of” the Sherman Act, the Court reversed and entered judgment for the 

plaintiffs, citing the benefits of “business certainty and litigation efficiency” in the summary 

condemnation of price fixing agreements. Id. at 337, 343-44; see also Catalano, 446 U.S. 649­

50 (summarily condemning price fixing agreement, relying on Sugar Institute). 

V. Conclusion 

For the reasons given above, Complaint Counsel respectfully requests the entry of an 

order granting partial summary decision on the issue of whether McWane unlawfully restrained 

price competition with Star in April and May of 2009. Complaint Counsel do not request 

summary decision as to the concerted action alleged in the Complaint between January of 2008 

and January 2009. Complaint Counsel intends to introduce evidence supporting those 

allegations at trial before Chief Administrative Law Judge Chappell, and anticipates that proving 

at trial the complaint allegations related to January 2008 – January 2009 will support greater 

remedial relief. See Compl. ¶¶ 28-38; 16 C.F.R. § 3.24(a)(5) (outlining procedure for summary 

decision on a portion of the allegations in the complaint).

 Respectfully submitted, 

 s/ Edward D. Hassi

 Edward D. Hassi

 Federal Trade Commission

 600 Pennsylvania Ave. NW 

 Washington, D.C. 

(202) 326-2470 

 Counsel Supporting the Complaint 

Dated: June 8, 2012 

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CERTIFICATE OF SERVICE
 

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I hereby certify that on June 8, 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, Rm. H-113 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery 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. 

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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.

 s/ Thomas H. Brock 

 Thomas H. Brock

 Federal Trade Commission

 600 Pennsylvania Ave. NW 

 Washington, D.C. 

(202) 326-2813 

 Counsel Supporting the Complaint 

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_______________________________ 

 

 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

) PUBLIC 

In the Matter of ) 

) 

McWANE, INC. ) DOCKET NO. 9351 

) 

Respondent. ) 

_______________________________) 

COMPLAINT COUNSEL’S STATEMENT OF UNDISPUTED FACTS 

Pursuant to Rule 3.24, Complaint Counsel submits the following material facts in support 

of its motion for partial summary decision as to which there is no genuine dispute: 

1. Respondent McWane, Inc. (“McWane”) manufactures and sells ductile iron pipe 

fittings (“Fittings”) in interstate commerce. Hassi Decl. Tab 2 (Answer ¶ 10). 

2. McWane competes with Star Pipe Products, Ltd. (“Star”) and Sigma Corporation 

(“Sigma”) in the sale of Fittings. Hassi Decl. 

3. 

2008. Hassi Decl. 

4. Fittings are commodity products produced pursuant to industry standards. Hassi 

Decl. Tab 2 (Answer ¶ 27(a)). 

5. Price competition is an important element of competition among Fitting suppliers. 

Hassi Decl. 

6. Fittings suppliers, including McWane, publish price lists that set forth individual 

prices for each specific Fitting, and then generally quote prices to customers that are based on a 

McWane, Sigma and Star accounted for more than percent of Fitting sales in 
 

 

 

 

 

 

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published percentage discount from those list prices, known as a “multiplier.” Hassi Decl. 

7. On April 15, 2009, McWane announced a new price list, to be effective May 1, 

2009 (“Announced Price List”). Hassi Decl. 

10. 

11. 

8. McWane’s new price list contained higher prices for small diameter Fittings and 

lower prices for medium and large diameter Fittings. Hassi Decl. 

9. On April 22, 2009, Star announced its intent to change its price list, effective May 

19, 2009, but did not specify the actual prices. Hassi Decl. 

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13. 

14. 

15. 

16. 

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18. 

19. 

20. Subsequently, Star followed McWane’s price change by adopting a substantially 

identical price list Hassi Decl. 

Dated: June 8, 2012 Respectfully submitted, 

s/ Edward D. Hassi 

Edward D. Hassi 

Federal Trade Commission 

600 Pennsylvania Ave. NW 

Washington, D.C. 

(202) 326-2470 

 Counsel Supporting the Complaint 
 

 

 

 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 8, 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, Rm. H-113 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery 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. 
 

 

 

 

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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.

 s/ Thomas H. Brock 

 Thomas H. Brock

 Federal Trade Commission

 600 Pennsylvania Ave. NW 

 Washington, D.C. 

(202) 326-2813 

 Counsel Supporting the Complaint 
 

____________________________________ 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

) PUBLIC 

In the Matter of ) 

) DOCKET NO. 9351 

McWANE, INC. ) 

) 

Respondent. ) 

) 

____________________________________) 

DECLARATION OF EDWARD D. HASSI 

1.	 I have personal knowledge of the facts set forth in this declaration, and if called as a 

witness I could and would testify competently under oath to such facts. 

2.	 I am an attorney at the Federal Trade Commission and Complaint Counsel in these 

proceedings. Attached to this declaration are the exhibits submitted in support of 

Complaint Counsel’s Motion for Partial Summary Decision. 

3.	 Tab 1 is a true and correct copy of the Administrative Complaint issued by the Federal 

Trade Commission in the above captioned matter dated January 4, 2012. 

4.	 Tab 2 is a true and correct copy of the Answer of Respondent McWane, Inc. 

(“McWane”) to the Complaint in the above captioned matter. 

5.	 Tab 3 is a true and correct copy of a transcript of the Investigational Hearing of Richard 

Tatman, dated July 21, 2010. 

6.	 Tab 4 is a true and correct copy of CX 1873, the Second Daniel McCutcheon 

Declaration, dated May 25, 2011. 

7.	 Tab 5 is a true and correct copy of CX 0569, a McWane e-mail from Rick Tatman to 

Thomas Walton, dated April 13, 2009. 
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8.	 Tab 6 is a true and correct copy of CX 2349, a McWane e-mail from Rick Tatman to 

Thomas Walton, dated April 23, 2009. 

9.	 Tab 7 is a true and correct copy of five exhibits: the First Daniel McCutcheon 

Declaration, dated April 20, 2010 (CX 0807); the Second Daniel McCutcheon 

Declaration, dated May 25, 2011 (CX 1873); CX 2350, the Ramesh Bhutada Declaration, 

dated April 28, 2010; a transcript of the Investigational Hearing of Daniel McCutcheon, 

dated October 12, 2010; and a transcript of the Deposition of Daniel McCutcheon, dated 

May 16, 2012. 

10.	 Tab 8 is a true and correct copy of CX 1180, a McWane e-mail from Rick Tatman to 

Leon McCullough and Thomas Walton, dated April 28, 2009. 

11.	 Tab 9 is a true and correct copy of a transcript of the Richard Tatman Deposition, dated 

May 10, 2012. 

12.	 Tab 10 is a true and correct copy of CX 2352, a McWane e-mail from Greg Adams to 

Marla Drake, dated May 1, 2009. 

13.	 Tab 11 is a true and correct copy of a transcript of the Investigational Hearing of 

Matthew Minamyer, dated November 10, 2011. 

14.	 Tab 12 is a true and correct copy of two exhibits, CX 2359, the Star Price List effective 

May 12, 2009, and CX 2358, the Tyler Union List Price LP-5091 effective May 1, 2009. 

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 I declare under the penalty of perjury that foregoing is true and correct. Executed this 

8th day of June, 2012, at Washington, D.C. 

s/ Edward D. Hassi 

Edward D. Hassi 

Federal Trade Commission 

600 Pennsylvania Ave. NW 

Washington, D.C. 

(202) 326-2470 

(202) 326-3496 Facsimile 

Counsel Supporting the Complaint 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 8, 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, Rm. H-113

 Washington, DC 20580

 I also certify that I delivered via electronic mail and hand delivery 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. 

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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. 

s/ Thomas H. Brock 

Thomas H. Brock 

Federal Trade Commission 

600 Pennsylvania Ave. NW 

Washington, D.C. 

(202) 326-2813 

Counsel Supporting the Complaint 

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