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OFFICE OF ADMINSTRATIVE LAW JUDGES 

FEDERAL TRADE COMMISSION 

UNITED STATES OF AMERICA ~y

) 

In the Matter of ) PUBLIC 

) 

McWane, Inc., ) DOCKET NO. 9351 

) 

Respondent ) 

) 

MOTION OF NON-PARTY AMERICAN CAST IRON PIPE COMPANY FOR IN 

CAMERA TREATMENT OF PROPOSED EVIDENCE 

American Cast Iron Pipe Company ("ACIPCO"), a non-party to the above styled action, 

respectfully moves, pursuant to 16 C.F.R. § 3.45(b), for an order granting in camera treatment of 

certain documents that it produced in response to third party subpoenas issued by Complaint 

Counsel and respondent McWane, Inc. ("McWane") that have been designated for possible 

introduction in the administrative trial in this matter. 

By letter dated July 17, 2012, Complaint Counsel notified ACIPCO that it intends to 

introduce into evidence certain documents produced by ACIPCO in response to its subpoena, 

and certain excerpts from the May 17, 2012 depositions of ACIPCO employees Jerr Burns and 

Michael Hays. Counsel for McWane has also notified ACIPCO that McWane intends to 

introduce into evidence certain excerpts from the transcripts of Messrs. Burns and Hays's 

depositions. 

The ACIPCO documents designated by the Complaint Counsel for possible introduction 

into evidence include, among others, the following documents (the "Confidential Documents"): 

Exhibit CX 1894 (ACIPOOOOO 1-000002)
 

Exhibit CX 1895 (ACIP000003-000007) 

Exhibit CX 1902 (ACIP002676-002679) 

2020255 v2 
Exhibit CX 1907 (ACIP000068-000069) 

Exhibit CX 1924 (ACIP00260 1-002603) 

Exhibit CX 2295 (ACIP000018-000018) 

Exhibit CX 2296 (ACIP000019-000019) 

Each of the Confidential Documents are attached as exhibits to the Affidavit of J. 

Michael O'Brien in support of this Motionl (the "O'Brien Aff."), which is attached to this 

Motion as Exhibit "A." Each ofthe Confidential Documents, including those produced in native 

format (Exhibits CX 2295 and CX 2296), were produced as "confidential material" subject to the 

Protective Order entered in this matter on January 5, 2012. 

The Confidential Documents contain information that is competitively sensitive for 

ACIPCO, and which ACIPCO holds in strict confidence. Public disclosure ofthese materials is 

likely to cause direct, serious harm to ACIPCO's competitive position. Therefore, pursuant to 16 

C.P.R. § 3.45(b),. ACIPCO respectfully moves for in camera treatment of the Confidential 

Documents identified in the O'Brien Affdavit. 

I. DESCRIPTION OF CONFIDENTIAL DOCUMNTS.
 

Exhibit CX 1894 is a summary of ACIPCO's sales of its domestically manufactured 

fittings for the year 2009 and the year 2010 (through August 18,2010). The summary includes 

substantial confidential information of ACIPCO, including the types of customers to whom 

ACIPCO made sales, the total sales figures for the relevant time period, and the total tonnage 

1 Two of the documents, Exhibits CX 2295 and CX 2296, are excel spreadsheets that 

were produced in native format (which is why each are labeled with only one Bates number), and 

are quite voluminous. The first several pages of both Exhibits CX 2295 and CX 2296 are 

attached to the O'Brien Aff. as exemplars of 
 the complete spreadsheets. All succeeding pages of 

each exhibit contain the same type of information contained on the first several pages. ACIPCO 

has not attached the full spreadsheets due to their bulk, but wil provide them should the Court 

desire. 

2020255 v2
 2 
sold. Furthermore, certain other confidential information, including the price per ton as sold to 

certain types of customers, could be derived from Exhibit CX 1894 even though such 

information is not disclosed on the document. (O'Brien Aff., ir 5). 

Exhibit CX 1895 is a quarterly summary of ACIPCO's sales of its domestically 

manufactured fittings for the year 2008 through the first quarter of201 1. The sales figures are 

broken down by the size of the fittings sold by ACIPCO. This exhibit contains not only 

ACIPCO's sales figures for each quarter between 2008 and the first quarter of 2011 for the 

different size fittings sold by ACIPCO, but also the total amount of tons sold during the same 

time period and for each of the different sizes of fittings. As with Exhibit CX 1894, per ton 

pricing information can be derived from the data in Exhibit CX 1895. Disclosure of the 

information contained in Exhibits CX 1894 and 1895 would severely harm ACIPCO because 

ACIPCO's competitors would gain access to internal, confidential sales data which would not 

otherwise be available to such competitors. (O'Brien Aff., irir 6, 7). 

Exhibit CX 1902 is a February 22, 2011 email and attachment. The email and the 

attachment are an internal discussion regarding ACIPCO's business plan and strategy with 

regard to fittings, and are thus highly confidentiaL. Disclosure of 
 this plan would severely harm 

ACIPCO because its competitors would have direct insight into its future business plan and 

strategy with regard to an entire segment of its business -- fittings. Such a disclosure would put 

ACIPCO at a severe competitive disadvantage. (O'Brien Aff., irir 8, 11). 

Exhibit CX 1907 is an internal March 2011 email string between ACIPCO personnel 

regarding its fittings negotiations, including those related to pricing, with another major fittings 

supplier. ACIPCO purchases fittings from this company for resale to ACIPCO customers, and 

this company is the supplier of the overwhelming majority of 
 the fittings sold by ACIPCO, with 

2020255 v2 3 
the exception being a few large diameter fittings that ACIPCO manufactures. ACIPCO invests 

significant time and resources in conducting negotiations with its customers and suppliers. 

Disclosure of this exhibit would allow ACIPCO's competitors, including the manufacturer I

i 

referenced in the email string, to view and analyze ACIPCO's internal pricing and business 

strategy, and would substantially affect and harm ACIPCO's future dealings with its customers 

and suppliers. (O'Brien Aff., irir 9, 11). 

Exhibit CX 1924 is a September 2009 email string and a related attachment. The 

attachment contains data regarding ACIPCO's average costs to purchase fittings and ACIPCO's 

average costs to manufacture fittings. The email discusses the data contained in the attachment 

and discusses ACIPCO's strategy for the purchase and manufacture of fittings based on the data. 

As with the previous exhibits, this exhibit contains highly confidential internal business strategy, 

as well as confidential internal cost data. ACIPCO would be at a severe competitive 

disadvantage if its competitors were permitted to review the data contained in the attachment and 

the internal strategy discussion contained in the emaiL. The candor contained in both Exhibits 

CX 1907 and CX 1924 demonstrate the expectation that the strategy discussions and data would 

remain confidentiaL. (O'Brien Aff., irir 10, 11). 

Exhibits CX 2295 and CX 2296 are voluminous spreadsheets containing information 

relating to ACIPCO's fittings sales by its two divisions: American Ductile Iron Pipe and 

American Flow Control. Together, these two divisions account for all fittings sales by ACIPCO. 

The spreadsheets contain customer names, dates of sales, a description of 
 the products sold, the 

quantities of 
 the products sold, the total tonnage sold, and the total price paid by each customer, 

for the time period January 2003 - March 2012. Thus these spreadsheets contain a complete and 

detailed sales history of every fittings sale by ACIPCO during the time period covered in the 

2020255 v2 4 
spreadsheets. ACIPCO considers all of the information contained on these spreadsheets, 

particularly the identity of its customers, the products such customers buy, and the prices paid by 

such customers, to be trade secrets, vital to the company, and highly confidentiaL. (O'Brien Aff., 

irir 12, 13). 

Disclosure of the information contained in Exhibits CX 2295 and CX 2296 would make 

public the lists of customer names, the products purchased and the prices paid by those 

customers, all of which ACIPCO and its divisions consider to be trade secrets, vital to the 

company, and highly confidential information. As these exhibits also include a description of the 

type and quantity of particular fittings bought by each customer, the date of the sale, and the 

prices paid by each customer, public disclosure of this information would provide ACIPCO's 

customers and competitors with information that might be used (i) by ACIPCO's competitors to 

poach ACIPCO customers, and (ii) by ACIPCO's customers in future pricing negotiations, all of 

which would be substantially detrimental to ACIPCO's business. (O'Brien Aff., ir 13). 

II. ACIPCO'S CONFIDENTIAL DOCUMNTS DESERVE IN CAMERA
 

TREATMENT. 

The documents that are described in this motion warrant in camera treatment as provided 

by 16 C.F.R. § 3.45(b). Under 16 C.F.R. § 3.45(b), requests for in camera treatment must show 

that public disclosure ofthe document in question "wil result in a clearly defined, serious injury 

to the person or corporation whose records are involved." H.P. Hood & Sons, Inc., 58 F.T.C. 

1184, 1188 (1961). That showing of a clearly defined, serious injury can be made by 

establishing that the document in question is "sufficiently secret and sufficiently material to the 

applicant's business that disclosure would result in serious competitive injury." In re General 

Foods Corp., 95 F.T.C. 352, 355 (1980). In this context, "the courts have generally attempted to 

protect confidential business information from unnecessary airing." Hood, 58 F .T.C. at 1188. 

2020255 v2 5 
In this instance, the public disclosure of the Confidential Documents would be 

unnecessary because they are not essential to explain the rationale of the Commission's decision 

in the above styled matter. In addition, several factors warrant in camera treatment of the
 

Confidential Documents. 

A. ACIPCO has preserved the confidentiality of the Confidential Documents. 

ACIPCO has taken significant steps to protect the confidential nature ofthe Confidential 

Documents, all of which were produced under a compulsory subpoena process. ACIPCO 

produced all the Confidential Documents subject to the Protective Order entered in this matter, 

and designated all such documents as "confidential," either by stamping confidential on all such 

documents, or by designating the documents as "confidential" in an accompanying
 

correspondence. (O'Brien Aff., ir 14). 

Furthermore, ACIPCO keeps the information contained in the Confidential Documents 

confidential, and the information is not publicly available. (O'Brien Aff., ir 15). ACIPCO has 

taken reasonable measures to protect the confidentiality of the Confidential Documents.
 

(O'Brien Aff., ir 15). Only a limited number of ACIPCO employees have knowledge of or 

access to the information contained in the Confidential Documents, and it would be extremely 

difficult, if not impossible, for ACIPCO's competitors or other outside persons to access or recreate the information contained therein. (O'Brien Aff., ir 16). These efforts demonstrate that 

ACIPCO has gone to great lengths to preserve the confidentiality ofthe information contained in 

the Confidential Documents. 

B. Disclosure of the information in the Confidential Documents would result in
 

serious competitive injury to ACIPCO. 

Each of the Confidential Documents contain information that is central to ACIPCO's 

business, and its disclosure would have a serious and direct impact on its competitive position in 

2020255 v2 6 
the fittings business. The information contained in the Confidential Documents would be 

extremely valuable to ACIPCO's business parers and competitors as it would provide behindthe-scenes insight into ACIPCO's sales, pricing, customers, business strategies, and negotiation 

strategies, all of 
 which are highly confidential and unavailable to the public. 

For example, if ACIPCO's competitors and business partners are able to view internal 

discussions regarding business strategy, negotiations and pricing, such competitors could use that 

information to their advantage, and ACIPCO's disadvantage, in future negotiations. 

Furthermore, if ACIPCO's customers are able to view the prices and rates that all of ACIPCO's 

other customers pay, they could use that information to leverage different prices and rates for 

themselves. Similarly, if ACIPCO's competitors are able to view ACIPCO's customer lists and 

sales information, those competitors would be free to approach ACIPCO's customers armed with 

valuable information and possibly poach ACIPCO's customers. 

Taken together, the information contained in the Confidential Documents is central to 

ACIPCO's business. Preserving the confidentiality of 
 this commercially sensitive information is 

critical for ACIPCO to maintain its market position and competitive advantage, which are the 

result of substantial investment over many years. (O'Brien Aff., ir 18). If accorded access to this 

confidential information, ACIPCO's competitors and business parners could unfairly exploit the 

information to their advantage. Disclosure would allow ACIPCO's competitors to pinpoint 

ACIPCO's prices and use this non-public information to target ACIPCO's customers for their 

own competitive gain. Access to this information would also enable ACIPCO's competitors to 

gain an understanding of ACIPCO's business and negotiating strategies, all of which would have 

an immediate and lasting detrimental effect on ACIPCO's ability to compete in the fittings 

market. 

2020255 v2 7 
The Confidential Documents, which are non-public documents of a non-party, are the 

types of protected materials the public -- and by extension competitors -- should not be permitted 

to access. If disclosed, their confidentiality is destroyed completely, and ACIPCO wil suffer 

significant harm. 

C. The likelihood of serious competitive harm to ACIPCO outweighs any public
 

interest in disclosure of the Confidential Documents. 

As a non-party requesting in camera treatment of confidential, competitively sensitive 

business information, ACIPCO deserves "special solicitude" for its Confidential Documents. In 

the Matter of 
 Kaiser Aluminum & Chemical Corporation, 103 F.T.C. 500 (1984) (order directing 

in camera treatment for sales statistics over five years old). Granting in camera treatment of 

confidential, competitively sensitive information for a reasonable period encourages non-parties 

to cooperate with future discovery requests in adjudicative proceedings. Id. Indeed, ACIPCO 

has cooperated with the discovery demands made upon it by the Complaint Counsel and 

Mc Wane in this case. 

On the other hand, publicly disclosing ACIPCO's sensitive information wil not 

materially promote the resolution of this matter, nor wil it be necessary to understand the
 

Court's decision-making process. In re Bristol-Myers Co., 90 F.T.C. 455, 456 (1977). Thus, the 

balance ofthe interests clearly favors in camera treatment for the Confidential Documents in this 

matter. 

D. Protection for the Confidential Documents warrants lasting protection. 

The information contained in Confidential Documents warrants lasting protection 

because it is "sufficiently secret and sufficiently material to (ACIPCO's) business that disclosure 

would result in competitive injury." General Foods, 95 F.T.C. at 355; see also 16 C.F.R. § 

3.45(b); Hood, 58 F.T.C. at 1188 ("courts have generally attempted to protect confidential 

2020255 v2 8 
business information from unnecessary airing"). Indefinite in camera treatment is granted under 

certain circumstances, including where the competitive sensitivity or the proprietary value of the 

information wil not diminish with the passage of 
 time. In re Coca Cola Co., 1990 FTC LEXIS 

364 (Oct. 17, 1990). Examples of this information include trade secrets, secret formulas, 

processes, and other secret technical information, and information that is privileged. In re
 

Hoechst Marion RousseL, Inc., 2000 FTC LEXIS 157 (Nov. 22, 2000). 

Exhibits CX 2295 and 2296, in particular, warrant indefinite in camera treatment, 

because such exhibits contain lists of ACIPCO's customers, which are trade secrets under 

Alabama law under certain circumstances that are present in this instance. See Public Systems, 

Inc. v. Towry 587 So. 2d 969, 973 (Ala. 1991) (customers lists may be treated as trade secrets, 

especially when the lists contain "specific information about customers, for example, their 

buying habits"). 

The remaining Confidential Documents contain core business information, customer 

data, pricing and cost information, business strategies, and negotiating strategies that are vital to 

ACIPCO's competitive position and overall business strategy. (O'Brien Aff., ir 17). 

Accordingly, ACIPCO respectfully requests that Exhibits CX 1894, CX 1895, CX 1902, CX 

1907, and CX 1924 be afforded in camera treatment for a period of 
 five years. 

Respectfully submitted this the 19th day of 
 September, 2012. 

lsi Brent W. Dorner 

Gary M. London (LON001) 

John C. Morrow (MOR054) 

Brent W. Dorner (DOR026) 

Attorneys for AMRICAN CAST IRON PIPE 

COMPANY 

OF COUNSEL: 

2020255 v2 9 
BURR & FORMAN LLP 

3400 Wachovia Tower 

420 North 20th Street 

Biringham, Alabama 35203
 

Telephone: (205) 251-3000
 

Facsimile: (205) 458-5100
 

Email: glondon@burr.com
 

jmorrow@burr.com 

bdorner@burr.com 

2020255 v2 10
 
CERTIFICATE OF SERVICE 

I hereby certify that I have served a copy of 
 the foregoing document by Federal Express 

or by U.S. First Class Mail, and by email on this the 19th day of 
 September, 2012: 

The Office of the Secretary
 

Federal Trade Commission
 

600 Pennsylvania Ave NW
 

RoomH-l13
 

Washington, D.C. 20580
 

Honorable D. Michael Chappell, Administrative Law Judge
 

Federal Trade Commission
 

600 Pennsylvania Ave NW
 

RoomH-106
 

Washington, D.C. 20580
 

oalj@ftc.gov
 

Thomas W. Thagard II
 

Maynard Cooper & Gale, P.C.
 

1901 Sixth Avenue North
 

2400 Regions/Harbert Tower
 

Birmingham, AL 35203
 

tthagard@mavnardcooper.com
 

Edward Hassi
 

Federal Trade Commission
 

600 Pennsylvania Ave NW
 

Washington, D.C. 20580
 

ehassi@ftc.gov
 

Michael J. Bloom
 

Bureau of Competition
 

Federal Trade Commission
 

601 New Jersey Avenue NW
 

Washington, D.C. 20580
 

mjbloom@ftc.gov
 

lsi Brent W. Dorner 

OF COUNSEL 

2020255 v2 11 
FTC Docket No. 9351
 

EXHIBIT 1 (eX 1894)
 
,.' 

. BUR R ... FOR MAN LLP
 . results maller 

Gary M. London J
 

giDndan@bur.~om
 .,4ti; Norih 20th Street
 

Direel Dìal: (205) 45&-5203 ) 'ìt¿~ Surrr. 3400 

Direct Fax: (205) 244.612 

BirmingJiam, AL 35203
 

Offre (205) 251.3000
 

Fax (205) 458-5100
 September 9,2010 

BURR.COM 

Christopher Renner 

Federal Trade Commission, Bureau of Competition 

601 New Jersey Avenue, NW 

Washington, DC 20580 

Re: 2009 and 2010 Fittings Sales Summary
 

Dear Mr. Renner:
 

Enclosed is a swnmary of American Cast Iron Pipe Company4s ("American") domestically
 

manufactured fittngs sales for the year 2009 and the year 2010 to date. The fittings size range is 

30" through 64". American did not domestically manufacture fittings in sizes 24" and smaller. 

As you can see the company has broken its anual fittings sales down by customer category, 

doBars and tonnage. 

American treats these numbers as highly confidential, and requests that the Federal Trade
 

Commission treats them in the same manner. If you have further questions please contact me at
 

your convenience.
 

5!trYYOUß'~ G~~ . 

GMLlthn
 

Enclosure
 

1859800 vI
 

ACIP000001 

CONFIDENTIAL-FTC Docket No. 9351 
REDACTED 

( ï 

ACIP000002 

CONFIDENTIAL-FTC Docket No. 9351 
FTC Docket No. 9351
 

EXHIBIT 2 (eX 1895)
 
~ , 

. 13 U R R .. e FOR MAN LLP . . results matter 

Ga M. Lodon 420 North 20th Stret
 glondon@burr.co
 

DìrectDial: (205) 458-5203
 SUI'I' 3400 DjretFax: (205)244-5672
 

Binningham, AL 35203
 

Offce (205) 251-3000 

Fax (205) 458.5100 April 7. 2011 

BURR.COM 

Christopher Renner 

Federal Trade Commission. Bureau of Competition 

601 New Jersey Avenue, NW 

Washigton. DC 20580 

Re: 2008 through lst quarter 2~11 Fittings Sales Summary
 

Dear Mr. Renner:
 

Recently. on behalf of the Federal Trade Commission. you requested that American Cast han 

Pipe Company ("American") produce certain i:rormation relating to the sale of domestically 

manufactured fittgs.
 

Enclosed is a sumary of American1s domestcally manufactured fittings sales for the year 2008 

though the 1st quarer of20il. As you requested American has broken the information out by
 

quarter for each year. The information is organied by size rage in both dollars and toll. This
 

information is for all domestically manufactured fittgs sold for use in the Untied States. The' 

fittings size range is 30ri through 6411. American did not domestically manufacture fittings in 

sizes 2411 and smaller. 

American treats these numbers as highly confdential, and requests that the Federa Trade 

Commssion treats them in the same maner. If you have further questions please contact me at 

your convenience.
 

GML/tlm 

Enclosure 

1908488 vI 

ACIP000003 

CONFIDENTIAL-FTC Docket No. 9351 
REDACTED
 

CONFIDENTIAl 

ACIP000004 

CONFIDENTIAL-FTC Docket No. 9351 
REDACTED 

CONFIDENTIAl 

ACIP000005 

CONFIDENTIAL-FTC Docket No. 9351 
.' 

REDACTED 

CONFIDENTIAL 

ACIP000006 

CONFIDENTIAL-FTC Docket No. 9351 
I 

. '
 

REDACTED 

CONFIDENTIAl 

ACIP000007 

CONFIDENTIAL-FTC Docket No. 9351 
FTC Docket No. 9351
 

EXHIBIT 3 (eX 1902)
 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP002676 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP002677 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP002678 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP002679 
I 

FTC Docket No. 9351
 

. ¡ 

EXHIBIT 4 (eX 1907)
 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP000068 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP000069 
FTC Docket No. 9351
 

EXHIBIT 5 (eX 1924)
 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP002601 
REDACTED
 

CONFIDENTIAL - FTC Docket No. 9351 ACIP002602 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTE 

o 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 
REDACTED
 

,--. 
FTC Docket No. 9351
 

EXHIBIT 6 (eX 2295)
 
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