__________________________________________ 

 

PUBLIC 

08 07 2012 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

 a limited partnership. ) 

__________________________________________) 

RESPONDENT MCWANE, INC.’S MOTION FOR IN CAMERA PROTECTION 

 OF CERTAIN DOCUMENTS CONTAINING SENSITIVE BUSINESS INFORMATION 

COMES NOW, Respondent McWane, Inc. (“McWane”), and moves for in camera 

protection of a very limited set of documents, containing McWane’s sensitive and proprietary 

business information, designated by the parties as potential exhibits in the trial of this matter and 

identified in Exhibits A and B attached hereto (hereinafter the “Subject Documents”).1 Full 

copies of the twenty-six (26) Subject Documents have been submitted to the Administrative Law 

Judge concurrently herewith by hand delivery. 

Federal law provides that information in evidence is worthy of in camera treatment 

where “its public disclosure will likely result in a clearly defined, serious injury” to the person or 

corporation whose records are at issue. See 16 C.F.R. § 3.45(b); see also FTC Rule of Practice 

3.45(b); In re Kaiser Aluminum & Chem. Corp., 103 F.T.C. 500, 1984 FTC LEXIS 60, at *1 

(1984), quoting In re H. P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). A party seeking in 

1

 Counsel for McWane has conferred with Complaint Counsel regarding the issues raised in this motion, and has 

been authorized to state that Complaint Counsel takes no position with respect to this motion and does not intend to 

file an opposition. 

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PUBLIC 

camera protection must establish that the information is “sufficiently secret and sufficiently 

material to the applicant's business that disclosure would result in serious competitive injury.” In 

the Matter of Evanston Northwestern Healthcare Corp., 2005 F.T.C. LEXIS 27, at * 1 (Feb. 9, 

2005) (internal citations omitted); see also In re General Foods Corp., 95 F.T.C. 352, 355 

(1980). A showing of injury may be supported by extrinsic evidence, such as an affidavit, or 

inferred from the nature of the documents themselves. See In the Matter of E.I. Dupont de 

Nemours & Co., 97 F.T.C. 116 (1981). 

The Commission considers six factors in evaluating secrecy and materiality: (1) the 

extent to which the information is known outside of the applicant's business; (2) the extent to 

which it is known by employees and others involved in the business; (3) the extent of measures 

taken by the applicant to guard the secrecy of the information; (4) the value of the information to 

the applicant and its competitors; (5) the amount of effort or money expended by the applicant in 

developing the information; and (6) the ease or difficulty with which the information could be 

properly acquired or duplicated by others. See In re Bristol-Myers Co., 90 F.T.C. 455, 458 

(1977). The Commission weighs any likely competitive injury associated with disclosure against 

the importance of publicly disclosing the information to help explain the rationale of the 

Commission's decision. In re General Foods Corp., 95 F.T.C. 352, 355 (1980). 

Applying the standard set forth above, “the courts have generally attempted to protect 

confidential business information from unnecessary airing.” H.P. Hood & Sons, Inc., 58 F.T.C. 

at 1188-89; see also In re Champion Spark Plug Co., 1982 FTC LEXIS 85, at *2 (April 5, 1982); 

Kaiser Aluminum, 103 F.T.C. at 500. For example, the FTC has found that “the likely loss of 

business advantages is a good example of a clearly defined, serious injury.” In re Dura Lube 

Corp., 1999 FTC LEXIS 255, at *7 (1999) (punctuation omitted). In camera treatment of 

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PUBLIC 

sensitive business records such as strategic plans, marketing plans, pricing policies, or sales 

documents is typically extended for a limited time period. E.g., In re Union Oil Co. of Cal., 

2004 FTC LEXIS 223, at *2 (Nov. 22, 2004); In re Int'l Ass'n of Conference Interpreters, 1996 

FTC LEXIS 298, at *13-14 (June 26, 1996); Champion Spark Plug, 1982 FTC LEXIS 85 at *2 

and 1982 FTC LEXIS 92, at *2 (March 4, 1982). 

As Exhibits A and B, and the Affidavit of Rick Tatman demonstrate, the Subject 

Documents meet the standard set forth in 16 C.F.R. §3.45(b). See Exhibits A - C, attached 

hereto. Twenty-one of the 26 Subject Documents are Tyler/Union’s Blue Books, which contain 

both detailed financial statements and the General Manager’s Report, which discusses pending 

and potential litigation and other liabilities.2 Tatman Aff., ¶ 2. The remaining Subject 

Documents are consist of monthly financial statements during the year 2011;3 Tyler/Union’s 

current non-public job pricing information;4 and two of Tyler/Union’s 2012 customer-specific 

rebate programs.5 Id. Because McWane is a privately held corporation which does not disclose 

sensitive business information to the public, the Subject Documents are considered seriously 

proprietary information, are kept confidential and remain competitively sensitive in the 

marketplace. Id. The disclosure of the Subject Documents will create an unfair disadvantage to 

McWane in the marketplace and result in serious competitive injury. Id. at ¶¶ 3-4. 

The Subject Documents – almost all of which were created within the past three years - 

are a small fraction of the 2,612 exhibits identified by the parties. See Exhs. A and B. The Blue 

Books, each of which contain not only a General Manager’s Report – in which pending and 

2

 Exh. A, CX-2394 – 2406; 2415 – 2419; Exh. B, 630 – 632. 

3

 Exh. A, CX-2135 and 2138.
 

4

 Exh. B, RX-396. 

5

 Exh. B, RX-319 and 361.
 

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PUBLIC 

potential lawsuits and other liabilities are discussed – but also highly detailed proprietary 

information pertaining to every aspect of Tyler/Union’s financial status, are kept confidential 

within McWane and not disclosed to the public. See Exh. A, CX-2394-2400, 2415-2419; Exh. 

B, RX-630-632; Tatman Aff. Public disclosure of the Blue Books would substantially harm 

McWane, by providing its competitors a wide open look into its innermost financial strengths 

and weaknesses, that the competitors could use to unfair advantage over McWane. See Id. 

Disclosure of the current customer-specific price and rebate plans would enable McWane’s 

competitors to leverage more favorable prices and plans for themselves, or even poach 

McWane’s customers. 

McWane has attempted in good faith to limit, to the greatest extent possible, the amount 

of information for which it is seeking in camera treatment. This good faith limitation weighs in 

favor of granting this motion. See, e.g., In re Union Oil Co. of Calif., 2005 LEXIS 9, at *1 (Jan. 

19, 2005) (granting in camera treatment where parties sought it only for “narrowly tailored” 

portions of deposition testimony). Only seven of the Subject Documents contain information 

over three years old. See Exhs A and B. One of those documents is Tyler/Union’s ongoing price 

protection log; however, McWane’s request for in camera protection of the log extends only to 

the items with prices set to expire in or after 2012. See Exh. B, RX-396 (these items appear 

under the 2012 Tab, 2011 Tab, and one appears under the 2010 Tab). Such current customerspecific pricing information should be protected from McWane’s competitors because it relates 

to ongoing jobs, and would provide competitors with the identities of customers, locations of 

specific jobs and sensitive pricing information not otherwise available to the public, which the 

competitors could then use to analyze and undermine both McWane’s internal pricing and 

business strategy, and its relationships with customers. See Id. 

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PUBLIC 

With regard to the other six Subject Documents containing information over three years 

old, all are Blue Books, and McWane seeks in camera protection of only the discrete portion of 

those Blue Books - the General Manager’s Report - which discusses pending and potential 

litigation and other liabilities wholly unrelated to this action. See Exh. A, CX-2394, 2395, 2397, 

2398, 2416 and Exh. B, RX-630. Disclosure of this information could expose McWane to 

liability, undermine McWane’s reputation, and otherwise arm McWane’s competitors with 

private information they could use to undermine McWane’s relationships with its customers. See 

Id. 

Because McWane has demonstrated that the Subject Documents fall within the wellestablished standard for in camera protection, this Motion is due to be granted. 

 /s/ Joseph A. Ostoyich_____

 Joseph A. Ostoyich 

One of the Attorneys for McWane, Inc. 

OF COUNSEL: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., N.W. 

Washington, D.C. 20004-2420 

Phone: 202.639.7700 

Fax: 202.639.7890 

joseph.ostoyich@bakerbotts.com 

andreas.stargard@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard, III 

Julie S. Elmer 

Maynard, Cooper & Gale, P.C. 

1901 Sixth Avenue North 

2400 AmSouth/Harbert Plaza 

Birmingham, AL 35203-2608 

(205) 254-1000 

(205) 254-1999 (facsimile) 

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PUBLIC 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

jelmer@maynardcooper.com 

6
 
 

PUBLIC 

CERTIFICATE OF SERVICE 

I hereby certify that on August 7, 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 overnight 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: 

Edward Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael L. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq. 

By: ______/s/ William C. Lavery_____

 William C. Lavery 

 Counsel for McWane, Inc. 

7
 
 

__________________________________________ 

 

PUBLIC 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

In the Matter of ) 

) 

McWANE, INC., ) 

) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

 a limited partnership, ) 

) 

Respondents. ) 

__________________________________________) 

PROPOSED ORDER 

On July 31, 2012, McWane, Inc. filed its Motion for In Camera Protection of 

certain documents appearing on the Exhibit Lists of the parties to this action. Upon 

consideration of this motion, McWane’s Motion is hereby GRANTED with respect 

to the twenty-six (26) documents identified in Exhibits A and B to its Motion. 

ORDERED: __________________________ 

 D. Michael Chappell

 Administrative Law Judge 

___________, 2012 

8
 
 

__________________________________________ 

 

PUBLIC 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

In the Matter of ) 

) 

McWANE, INC., ) 

) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

 a limited partnership, ) 

) 

Respondents. ) 

__________________________________________) 

STATEMENT REGARDING MEET AND CONFER 

Pursuant to Paragraph 4 of the Scheduling Order, one of the attorneys for 

McWane met and conferred in good faith with Complaint Counsel regarding the 

issues raised in this motion. Counsel for McWane has been authorized to state that 

Complaint Counsel takes no position with respect to this motion and does not intend 

to file an opposition. 

 By: _/s/ William C. Lavery________ 	 

 Counsel for McWane, Inc. 

9
 
EXHIBIT A
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety
	
EXHIBIT B
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety
	
EXHIBIT C
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety