Additionally, LNG tanks, LPG tanks, and LIN/LOX tanks, which store gascs in liquid form at
yery cold temperatures, share many characteristics and are collectively reterred to within the
industry as “low temperature and cryogenic tanks.”
Conclusion

Complaint Counsel respectfully requests that this Court deny Respondents’ motion for a
sixty-day extension of time, or in the alternative, if the Court granis Respondent’s motion, adopt

Complaint Counsel’s Second Revised Scheduling Order.

Dated: Washington, D.C. Respect fll submitted,
June 18, 2002 f

Steven L. WileySk

Federal Trade 440mmission
601 Pennsylvania Ave. N.W.
Washington D.C. 20580
(202) 326-2650

Complaint Counsel


{August 5, 2002]

[August 5, 2002]

[August 12, 2002]

{August 14, 2002]

JAugust 19, 2002]

[August 21, 2002]
[August 23, 2002]

[August 26, 2002]

Close of discovery, other than discovery permitted
under Rule 3.24(a)(4), depositions of experts, and
discovery for purposes of authenticity and
admissibility of exhibiis.

Complaint Counsel provides expert witness reports.

Parties that intend to offer into evidence at the hearing
conlidential materials of an opposing party or
non-party must provide notice to the opposing party or
non-party, pursuant to 16 C.FLR. § 3.45(b).

Complaint Counse! provides to Respondents’ counsel
its final proposed witness and exhibit lists, including
designated testimony to be presented by deposition,
copies of all exhibits (except for demonstrative,
illustrative or summary exhibits), and a brief summary
of the testimony of each witness. Complaint Counsel
serves courtesy copies on AJ of its final proposed
witness and exhibit lisis and a brief summury of the
testimony of each witness.

Respondents' Counsel provides to Complaint Counsel
its final proposed witness and exhibit lists, including
designated testimony to be presented by deposition
and copies of all exhibits (except for demonstrative,
illustrative or summary exhibits), and a brief summary
of the testimony of each witness. Respondents!
Counsel serves courtesy copies on Al) of its final
proposed witness and exhibit lists and a brief summary
of the testimony of each witness.

Respondents’ Counsel provides expert witness reports.

Deadline for filing motions for i# camera treatment of
propesed tral exhibits.

Deadline for filing motions i# fimine and motions to
sinkc. (except as to experts)


UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

5)

In the Matter of )

)

CHICAGO BRIDGE & IRON COMPANY N.Y.)

)

a foreign corporation, )

}

CIICAGO BRIDGE & IRON COMPANY )

)

a corporation, )
} Docket No. 9300

and )

)

PITT-DES MOINES, INC. )

)

a corporation. }

)

ORDER

On June 14, 2002, Respondents filed a Motion for a Sixty-Day Extension of Time. On
June 18, 2002, Complaint Counscl fited a Response to Respondents’ Motion for a Sixty-Day
Extension of ‘Vime, Javing considered the purties' arguments,

TTIS HEREBY ORDERED that Respondents’ motion is denied in its entirety.
Respondents have not shown extraordinary circumstances for the tequested extension as
required by Rule 3.51 of ihe Commissions’s Rules of Practice. Discovery may continue past the
July 8, 2002 date contained in the First Revised Scheduling Order as is necessary to complete
depositions of witncsses and to complete Respondents” production of documents in response to

Compiaint Counsel’s Fune 7, 2002 discovery requests.


CERTIFICATE OF SERVICE

Thereby certify ihai I caused a copy of Complaint Counsel’s Reply to Respondents’
Motion for a Sixty-Day Extension of Time to be delivered by hand to

The Honorable James P. Timony
Federal Trade Commission
H-104

6" and Pennsylvania Ave. N.W.
Washington D.C. 20580

Administrative Law Judge
and by facsimile and by first-class mail to:

Jeffrey A. Leon

Duane M. Kelley
Winston & Strawn

315 W. Wacker Drive
Chicago, IL 69601-9703
(312) 558-5600

Counsel for Respondents Chicago Bridge & Iron Company
N,V. and Pitt-Des Moines, Inc.

Dated: June 18, 2002

6.


UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

Tn the Matler of

CHICAGO BRIDGE & LRON COMPANY N.Y.
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY, Docket No. 9300

a corporation, and

PITT-DES MOINES, INC.,
a corporation.

ee ee ee

SECOND REVISED SCHEDULING ORDER

April 23, 2002 - Complaint Counsel provides preliminary witness lisi
(not including experts) with description of proposed
testimony.

Apnil 30, 2002 - Respondents' Counse! provides preliminary witness
lists (not including cxperts) with description of
proposed testimony.

April 30, 2002 - Complaint Counsel provides expert witness list.

May 7, 2002 - Respondents’ Counsel provides expert witness list.

May 21, 2002 - Status confirence with ALJ to address disputes
tegarding discovery and other pretrial matters, if
Tequested by parties.

May 28, 2002 - Complaint Counsel provides revised witness lists,

including preliminary rcbuttal witnesses, with
description of proposed testimony.

June 3, 2002 - Respondents' Counsel provides revised witness list,
includiny preliminary sur-rebuttal witnesses, with
description of proposed testimony.

June 7, 2002 - Deadline for issuing document requests, requests for
admission, interrogatories aud subpocnas duces fecum,
except for discovery for purposes of authenticity and
admissibility of exhibits.


UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY

a corporation,

Docket No. 9300

and

PITT-DES MOINES, INC.

a corporation.

Ne ee ee ee er ee ee

To: = The Honorable James P. Timony
Administrative Law Judge

COMPLAINT COUNSEL'S RESPONSE TO RESPONDENTS’
MOTION FOR A SIXTY-DAY EXTENSION OF TIME

Complaint Counsel files this response to Respondents’ Motion for a Sixty-Day Extension
of Time, made pursuant to Rule 3.51 of the Commission’s Rules of Practice. Rule 3.51 allows
for sixty-day extensions of the onc-ycar period for rcndering an initial decision only upon a
finding of “extraordinary circumstances” by the administrative law judge. Those circumstances
are not present in this case. Respondents cite three principal reasons for their request: (1) the
large number of depositions outstanding (approximately 20) that may noi be completed prior to
the July $, 2002, deadline for the completion of discovery; (2) the discovery requests issued by
Complaint Counsel on June 7, 2002 m accordance with the First Revised Scheduling Order

entered May 6, 2(02; and (3) the complexity of the case.


Ali “Additional Provisions” of the February 20, 2002 Scheduling Order remain in effect.

Date:

James P. Timony
Chief Administrative Law Judge


[August 30, 2002}

[September 6, 2002]

[September 9, 2002]
[September 16, 2002]

(September 18, 2002]

[September 18, 2002]

[September 23, 2002]

{September 30, 2002]

[October 7, 2002]

Complaint Counsel to identify rebuttal expert(s) and
provide rebuttal expert report({s). Any such reports are
to be limited to rebuttal of matters sct forth in
Respondcuts' expert reports. Lf material outside the
scope of fair rebuttal is presented, Respondent will
have the right to sock appropriate relief (such as
striking Complaint Counsel's rcbultal expert reports or
secking lcave to submit sur-rebuttal expert reports oa
behalf of Respondent).

Exchange and serve courtesy copy on ALJ of
objections to final proposed witness lists and exhibit
lists. Exchange objections to the designated testimony
to be presented by deposition and counter
designations.

Complaint Counsel files pretrial brief.
Respondents’ Counsel files pretnal brief.

Exchange proposed stipulations of law, facts, and
authenticity.

Deadline for depositions of experts (including rebuttal
experts).

File final stipulations of law, facts, and authenticity.
Any subsequent stipulations may be filed as agreed by
the parties.

Final prehearing conference to be held at 10:00 a.m. in
room 532, Federal Trade Commission Building, 600
Pennsylvania Avenue, N.W., Washington, D.C. The
parties are to meet and confer prior to the conference
regarding trial logistics and proposed stipulations of
law, facts, and authenticity and any designated
deposition testimony. Counsel may present any
objections Lo the final proposed witness lists and
exhibits, including the designated testimony to be
presented by depesilion. Trial exhibits will be
admitted or excluded to the extent practicable.

Commencement of Hearing, to begin at 10:00 a.m. in
room $32, Federal Trade Commission Building, 600
Pennsylvania Avenue, N.W., Washington, D.C.


OKDERED

James P, Timony
Administrative Law Judge

Date: June, 2002


Counsel questions how many of these unnamed individuals it will ultimately have to depose.
The Discoyery Requests

Respondents cite to Complaint Counsel's June 7, 2002, discovery requests as an
additional reason justifying its request for a 60-day of extension of time (Respondents’ Motion at
5). Complaint Counsel issued these discovery requests in a timely fashion on Junc 7, 2002, in
full accord with the provisions of the First Revised Scheduling Order. Respondents do not
question the relevance of these discovery requests. (Respondents’ Motion at 6, fh. 4).
Respondents also report that it would take approximately two months to comply with the
requests they find most burdensome. (Respondents’ Motion at 6). Respondents could
presumably complete discovery by August 7, 2002, a month prior to trial start date of September
10, 2002, under the First Revised Scheduding Order.

Complaint Counsel questions Respondents’ dire predictions relating to the cost and time
necessary to comply with these discovery requests. Complaint Counsel and Respondent are
currently engaged in negotiations relating to Respondents* compliance with the discovery
tequests that will produce the documents and information that Complaint Counsel seeks, while
avoiding any unwarranted burden on Respondents.

Complexity of the Case

As a final reason for seeking « 60-day extension of time, Respondent cites to the
complexily of the case, which involves six different product markets. (Repondents’ Motion at
7). This case is no more complex than any other antitrust case. ‘['hree of the product markets,
LNG import terminals, LNG peak shaving plants, and LNG tanks, are intimately related; LNG

tanks are essential components of LNG import terminals and LNG peak shaving plants.

-4-


Complaint Counsel's third parly witnesses. There are currently 23 witnesses on Complaint
Counsel's Revised Witness List,? Respondents have been aware of the identity of thirteen of
these individuals since March 14, 2002, more than three months ago, when Complaint Counsel
turned over affidavits in its posscssion to Respondents. Respondents became aware of the
identity of eight more of these individuals on April 22, 2002, when Complaint Counsel provided
its Initial Witness List to Respondents. Compiaint Counsel listed only three additional
individuals on its Revised Witness List on May 28, 2002.

Complaint Counsel has informed Respondents that there are a small number of witnesses
that it may wish to add to its Revised Witness Lisi; Respondents have likewise notified
Complaint Counsel that they have a small number of witnesses that they may wish to add to their
Revised Witness List. The parties will work cooperatively with each to make sure that any
additional witnesses are identified, and deposed, as quickly as is practicable.

Complaint Counsel questions whether, after the current round of scheduled deposilions
has been completed on June 28, 2002, the number of depositions remaining will be as large as
20. Ninc of these twenty remaining individuals arc the yet unnamed remedy witnesses on
Respondents’ Initial and Revised Witness Lists who bear designations such as “Head of
Engineering” and “Head of Estimating.” (Exhibit B to Respondents’ Motion). These individuals
haye remained unnamed since Respondents provided their. Initial Witness List on April 30, 2002,
despite requests from Complaint Counse} that Respondents identify these individuals. Complaint

2 Complaint Counscl’s Revised Witness list names 24 individuais, one of which was
voluntarily removed by Complaint Counsel when it became apparcnt that the witness would no
longer be called at trial. Complaint Counsel has informed Respondents that it may be able to

Temove other witnesses from ils Revised Witness List as discovery progresscs if it appears that
the testimony from these wilncsses would be duplicative.

3.


As explained below, Complaint Counsel believes that a sixty-day extension is
unwarranted and recommends that exceptions to the July 8, 2002 cut-off date for discovery be
granted, as neccssary to compictc depositions of witnesses and to complete Respondents’
production of documents in response to the June 7 document requests. Otherwise maintaining
the cxisting pretrial schodule will motivate Complaint Counsel and Respondents to refine their
witness lists and move this litigation forward to a timely completion.

Nonetheless, if this Court is inclined to grant an extension of the pretrial schedule,
Complaint Counsel recommends that the Court extend the date for commencement of tial by no
more than four weeks. A proposed allernative schedule is attached, which provides for
commencement of the hearing on October 7, 2002." Under Respondents’ proposed schedule, the
hearing would commence on November 12, 2002, and the litigation would nun into the holiday
season, potentially causing difficulties in scheduling witnesses and additional delays.

The Depositions

In their motion, Respondents reference approximately 20 outstanding depositions that
may not be completed by the July 8, 2002, cut-off date for discovery (Respondenis” Motion at 2).
During the course of this litigation, there bas not been a single deposition that has been cancelled
or rescheduled due to Complaint Counsel. Complaint Counsel has endeavored to meet all dates
and times for depositions suggested by Respondents, even though they may not have heen set at

times convenient for Complaint Counsel. Moreover, Respondents havc had adequate notice of

1 The one-year anniversary of the issuance of the complaint in this matter will be
October 25, 2002. Consequently, even if the hearmg commences in October 2002, it will be
necessary (o grant al Icast one 60-day cxtension of time to complete the litigation and allow the
Court time to write a decision.

2.