UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of

PUBLIC

McWANE, INC.,

a corporation. Docket No. 9351

UNOPPOSED MOTION OF NON-PARTY SIGMA CORPORATION FOR IN CAMERA

TREATMENT OF CERTAIN ADDITIONAL DESIGNATED HEARING EXIllBITS

Non-party SIGMA Corporation ("SIGMA"), through its undersigned counsel,

hereby files this Unopposed Motion for In Camera Treatment of Certain Additional Designated

Hearing Exhibits that Complaint counsel for the Federal Trade Commission ("FTC") and counsel

for Respondent Me Wane, Inc. ("Mc Wane") have designated for introduction into the record of

the administrative trial of this matter. Both of these documents were treated by SIGMA as

"Confidential" in accordance with the terms of the Protective Order Governing Discovery

Material entered by D. Michael Chappell, Administrative Law Judge, on January 5, 2012.

SIGMA respectfully requests that the Administrative Law Judge enter an Order pursuant to Rule

3.45(b) of the Federal Trade Commission Rules of Practice, 16 C.F.R. § 3.45(b), granting in

camera treatment for a period of two (2) years to the portions of documents identified in this

Motion. SIGMA has disclosed the contents ofthis Motion to the FTC's Complaint counsel and

Counsel for McWane. After meeting and conferring, neither objects to the relief requested for

the documents that are subject to this Motion.

The documents subject to this Motion are secret and material to SIGMA's

ongoing business, the disclosure of which would harm SIGMA and create a loss of business

DMEAST #15896714 v1

11 07 2012 
advantages for SIGMA in the marketplace. In support of this Motion, SIGMA relies upon the

accompanying Declaration of James McGivern, and states as follows:

I. Introduction

On August 17,2012, the Court granted SIGMA's initial Motion for In Camera

Treatment of Certain Designated Hearing Exhibits. The purpose of the instant Motion is to seek

in camera treatment for portions of only two additional documents-CX 1002 and CX 1745-

both of which were produced in response to subpoenas issued upon SIGMA during the course of

this proceeding. The documents are identified only by exhibit designation in this Motion and in

the Declaration of James McGivern, but they are submitted for in camera review to the Office of

Administrative Law Judges. Both of the subject documents were treated as "Confidential" under

the Protective Order Governing Discovery Material entered by the Hon. D. Michael Chappell,

Administrative Law Judge, on January 5, 2012 ("Protective Order").

On November 5,2012, counsel for SIGMA completed discussions with

Complaint counsel and McWane's counsel concerning the instant Motion and identified the

documents for which SIGMA would seek in camera treatment. Counsel for SIGMA explained

the basis for the Motion and requested that Complaint counsel and McWane's counsel agree not

to oppose SIGMA's Motion for in camera treatment. Complaint counsel and McWane's counsel

have confirmed that they do not oppose the instant Motion for the identified documents.

The information contained in these documents is secret, commercially sensitive,

and material to SIGMA's current and prospective business ventures. Accordingly, SIGMA

respectfully requests that the Administrative Law Judge enter an Order pursuant to Rule 3.45(b)

of the Federal Trade Commission Rules of Practice, 16 C.F.R. § 3.45(b), granting in camera

treatment to the identified portions of these documents for a period of two (2) years.

DMEAST #15896714 v1 2
II. Standard for In Camera Treatment

Materials merit in camera treatment when disclosure "will result in a clearly

defined, serious injury to the person or corporation whose records are involved." HP. Hood &

Sons, Inc., 58 F.T.C. 1184, 1188 (1961). An applicant for in camera treatment can establish such

serious injury by showing that the information at issue 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 re Bristol-Myers Co., 90 F.T.C. 455,

456 (1977). The following factors should be weighed in considering both secrecy and

materiality: (1) the extent to which the information is known outside of the applicant's business;

(2) the extent to which the information is known by employees and others involved in the

applicant's 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. In re

Bristol-Myers Co., 90 F.T.C. at 456-57.

A showing of injury may consist of extrinsic evidence or, in certain instances,

may be inferred from the nature of the documents themselves. In re E.l Dupont de Nemours &

Co., 97 F.T.C. 116 (1981). Administrative law judges have broad discretion in applying these

factors to determine whether information warrants in camera treatment. See In re General

Foods Corp., 95 F.T.C. 352 (1980). Moreover, the Commission has stated that a request for in

camera treatment by a non-party company to an FTC proceeding (such as SIGMA) should be

given "special solicitude." In re Crown Cork & Seal Co., 71 F.T.C. 1714 (1967) ("[P]etitioner's

plea warrants special solicitude coming as it does from a third-party bystander in no way

involved in the proceedings whose records, if in camera treatment is denied, will be open to the

DMEAST #15896714 v1 3
scrutiny of its competitors"); accord In re Kaiser Aluminum & Chemical Corp., 103 F.T.C. 500

(1984) (requests for in camera treatment by third parties should be given special solicitude

because, as a policy matter, such treatment encourages the third party to cooperate with future

adjudicative discovery requests).

Further, the Commission has recognized that it may be appropriate to provide in

camera treatment for certain business records. In re Champion Spark Plug Co., 1982 FTC

LEXIS 85, at *2 (April 5, 1982); Hood, 58 F.T.C. at 1188-89; In re Kaiser Aluminum, 103

F.T.C. at 500. Where in camera treatment is granted for business records, such as business

strategies, marketing plans, pricing policies, or sales documents, it is typically provided for two

to five years. See, 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); In re Champion Spark Plug Co., 1982 FTC LEXIS 85, at *2 and 1982 FTC LEXIS 92, at

*2 (March 4, 1982).

III. The SIGMA Documents Meet the Standard for In Camera Treatment

The information contained in both of the documents is confidential and disclosure

of such information would cause serious competitive injury to SIGMA, thereby meeting the

standard set forth by the Commission for in camera treatment. In re General Foods Corp., 95

F.T.C. at 355. As set forth in the accompanying Declaration of James McGivern, which is

incorporated as part of this Motion, SIGMA expends a considerable amount of money and effort

in creating the information contained in these documents and takes considerable measures to

protect the secrecy of such information. McGivern Decl., " 2, 8-9. Moreover, it would be

extremely difficult for SIGMA's competitors or customers to obtain the information contained in

the subject documents. Id

DMEAST #15896714 v1 4
Both of the documents contain highly sensitive information related to SIGMA's

financial information and SIGMA's strategic planning initiatives for the future of the company.

!d. at ~ 4. Documents containing information relevant to SIGMA's financial health and its

strategic planning initiatives are important to SIGMA's business, competitiveness, and

profitability. Were a competitor to know this sensitive information, such a competitor would

gain a significant business advantage at the expense of SIGMA. Moreover, existing or potential

customers armed with such sensitive information could use it to their advantage in future

negotiations with SIGMA. The disclosure of this critically sensitive information would be

highly detrimental to SIGMA as it would provide both the customers with whom SIGMA does

or may contract and SIGMA's competitors with sensitive financial and strategic information,

causing serious and irreparable harm to SIGMA resulting in significant loss of business

advantage. Id at ~~ 4, 10. Thus, SIGMA submitted the subject documents under the auspices of

the Protective Order issued in this matter and fully expected that these documents would not be

exposed to its customers or its competitors.

Further, these two documents contain confidential communications between highlevel employees relating to pricing, as well as financial planning information solely meant for

disclosure to SIGMA's Board of Directors and select members of management. SIGMA

continues to use this data in analyzing its growth in various competitive sectors, in addition to

seeking out competitive opportunities within the municipal waterworks industry. Id at ~ 7. The

disclosure of such information would place SIGMA at a competitive disadvantage by exposing

confidential communications and information regarding strategic growth with existing and

potential customers. Id at ~ 10.

DMEAST #15896714 v1 5
Finally, portions ofthese two documents contain sensitive financial information

of SIGMA. The disclosure of this information would reveal to SIGMA's competitors, as well as

to its existing and potential customers, an unfair "insider's" perspective of its financial strengths

and weaknesses. Id SIGMA continues to use this data in analyzing its growth in various

competitive sectors within the municipal waterworks industry and, therefore, the data remains

highly confidential. Id

Based upon the above facts, and the support demonstrated by the Declaration of

James McGivern, SIGMA has adequately demonstrated the secrecy and materiality set forth in

Bristol-Myers, 90 F.T.C. at 456-57, and therefore should be afforded in camera status for the

portions of documents identified in CX 1002 and CX 1745.

IV. In Camera Treatment of the Documents Should Extend for a Two Year Period

SIGMA seeks in camera treatment for portions of CX 1002 and CX 1745 for a

period of two years. As a non-party seeking in camera treatment for its confidential business

information, SIGMA's request should be treated with "special solicitude." In re Kaiser

Aluminum & Chemical Corp., 103 F.T.C. at 500 (order directing in camera treatment for nonparty's sales statistics over five years old). Reasonable periods of in camera treatment

encourage non-parties to cooperate with future discovery requests in adjudicative proceedings.

Id At great expense, SIGMA has cooperated with the discovery demands of both parties to this

case, producing thousands of pages of documents and several witnesses for depositions in short

order. The subject documents have been made available for use by Complaint counsel and

McWane's counsel in accordance with the terms of the Protective Order. Further, neither

Complaint counsel nor McWane's counsel object to this Motion. Disclosing documents

containing SIGMA's highly confidential business information will not materially promote the

resolution of this matter. Instead, the disclosure of these confidential documents will materially

DMEAST #15896714 v1 6
harm SIGMA and create a loss of business advantage. Thus, the balance of interests favors in

camera treatment for the subject documents. See In re Bristol-Myers, 90 F.T.C. at 456-57.

Further, SIGMA's request that in camera treatment for the subject documents be

maintained for brief period is reasonable in light of the fact that the subject documents qualify as

the types of business records for which the Commission regularly has granted in camera

treatment. In re Champion Spark Plug Co., 1982 FTC LEXIS 85, at *2; Hood, 58 F.T.C. at

1188-89; In re Kaiser Aluminum, 103 F.T.C. at 500. Moreover, the market is such that

disclosure of this information creates an unreasonable and unnecessary risk of competitive harm

to SIGMA such that in camera treatment is necessary for a period of at two (2) years, which is

SIGMA's reasonable estimate of the minimum length oftime for the information at issue to

become outdated and irrelevant.

v. Conclusion

SIGMA, in endeavoring to remain competitive in the municipal waterworks

industry and to provide superior service for its customers, has created certain highly sensitive

documents, the disclosure of which would result in a clearly defined serious injury to SIGMA.

Accordingly, for the reasons set forth above and in the Declaration of James McGivern

submitted in support of this Motion, SIGMA respectfully requests that this Court grant its

Motion directing in camera treatment for identified portions of the subject documents.

Respectfully submitted,

lsi Matthew A. White

Matthew A. White

Ballard Spahr LLP

1735 Market Street, 51st Floor

Philadelphia, PA 19103

DMEAST #15896714 vt 7
Phone: (215) 665-8500
 

Fax: (215) 864-8999
 

whitema@ballardspahr.com

Attorneys for SIGMA Corporation

Dated: November 7,2012

DMEAST #15896714 v1 8
 
NON-PARTY SIGMA CORPORATION'S UNOPPOSED MOTION FOR IN CAMERA
 

TREATMENT OF CERTAIN ADDITIONAL DESIGNATED HEARING EXHIBITS
 

(REDACTED FROM PUBLIC FILING)
 

DMEAST #15896714 v1
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

In the Matter of

PUBLIC

MeW ANE, INC.,

a corporation. Docket No. 9351

DECLARATION OF JAMES MCGIVERN IN SUPPORT OF NON-PARTY SIGMA
 

CORPORATION'S UNOPPOSED MOTION FORLN CAMERA TREATMENT OF
 

CERTAIN ADDITIONAL DESIGNATED HEARING EXIDBITS
 

I, James McGivern, declare as follows:

1. I am the Chairman and Chief Executive Officer of non-party SIGMA Corporation

("SIGMA"), in addition to a member of SIGMA's Board of Directors. I make this declaration

based upon my personal knowledge and in support of SIGMA's Motion for In Camera

Treatment of Certain Additional Designated Hearing Exhibits.

2. The information contained in the identified portions ofCX 1002 and CX 1745

contains highly sensitive and confidential material. SIGMA has taken substantial measures to

guard this information by limiting dissemination of such information and taking every reasonable

step to protect its confidentiality. Such information is disclosed only to a few high-level SIGMA

employees and its Board of Directors. This information is not known outside of SIGMA except

to the extent necessary to engage in confidential contract negotiations or confidential discussions

with potential or existing customers. The information contained in the identified portions of CX

1002 and CX 1745 would be extremely difficult for SIGMA's competitors or other outside

persons to access or duplicate. Additionally, each such document has, upon production during

DI\I1EAST #15896950 v1
discovery inthis proceeding, been designated "Confidential" pursuant to the Protective Order

Governing Discovery Material entered on January 5, 2012.

3. I have reviewed CX 1002 and CX 1745. By virtue of my current position at

SIGMA, I am familiar with the type of information contained inthese documents. Based on my

review of the documents, my knowledge of SIGMA's business, and my familiarity with the

confidentiality protection afforded this type of information by SIGMA, it is my belief that broad

disclosure of these documents would cause serious competitive injury to SIGMA.

4. The identified portions of CX 1002 and CX 1745 contain highly sensitive

information related to SIGMA's financial information and SIGMA's strategic planning

initiatives for the future of the company. The disclosure of this critically sensitive information

would be highly detrimental to SIGMA, as it would provide both the customers with whom

SIGMA does or may contract and SIGMA's competitors with sensitive fmancial and strategic

information, causing serious and irreparable harm to SIGMA that would result in significant loss

of business advantage within the marketplace.

5. Documents containing information relevant to SIGMA's fmancial health and its

strategic planning initiatives are important to SIGMA's business, competitiveness, and

profitability. Were a competitor to know this sensitive information, such a competitor would

gain a significant business advantage at the expense of SIGMA. Moreover, existing or potential

customers armed with such sensitive information could use it to their advantage infuture

negotiations with SIGMA.

6. The documents for which SIGMA seeks in camera treatment contain strategic

planning and market share information. The information contained in these documents is highly

DMEAST #15896950 vi 2
confidential and contains sensitive business information. Portions of ex 1745 contain financial

covenants, profitability margins, plans to reduce expenses, and overall narratives on the state of

the company. The disclosure of this information would reveal to SIGMA's competitors, as well

as to its existing and potential customers, its future plans for strategic growth, as well as

SIGMA's market share in various sectors within the municipal waterworks marketplace.

Further, these documents contain confidential communications relating to pricing, as well as

fmancial planning information, solely meant for disclosure to SIGMA's Board of Directors and

high-level employees. SIGMA continues to use this data in analyzing its growth in various

competitive sectors, in addition to seeking out competitive opportunities within the municipal

waterworks industry. The disclosure of such information would place SIGMA at a competitive

disadvantage by exposing such confidential communications and information regarding strategic

growth within the marketplace.

7. Further, the documents for which SIGMA seeks in camera treatment contain

sensitive financial information of SIGMA. The information contained in these documents is

highly confidential and contains sensitive business information. Portions of ex 1745 and ex

1002 contain confidential pricing summaries and fmancial projections. The disclosure of this

information would reveal to SIGMA's competitors, as well as to its existing and potential

customers, its financial health. SIGMA continues to use this data in analyzing its growth in

various competitive sectors within the municipal waterworks industry and, therefore, the data

remains highly confidential.

8. SIGMA has expended a significant amount of money and resources in preparing

the documents for which it now seeks in camera treatment.

PMEAST #15896950 vi 3
9. SIGMA takes considerable measures to protect the secrecy of the information

contained in the documents for which it now seeks in camera treatment. Both the strategic

planning documents and the financial information are disclosed only to a limited number of

employees at SIGMA, in addition to its Board of Directors.

10. The information contained in the identified portions ofCX 1002 and CX 1745 is

material to SIGMA's business and competitive position in the marketplace. Disclosure of the

information contained inthe documents would result ina loss of business advantage and cause

serious irreparable injury to SIGMA. The disclosure of this information would provide

SIGMA's competitors, in addition to existing and potential customers, with information that is

confidential and critical to SIGMA's business.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct

Executed this ~ay of November, 2012.

James McGivern, CEO

DMEAST#15896950 v1 4
--------

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

In the Matter of

PUBLIC

McWANE, INC.,

a corporation. Docket No. 9351

ORDER GRANTING NON-PARTY SIGMA CORPORATION'S UNOPPOSED MOTION

FOR IN CAMERA TREATMENT OF CERTAIN DESIGNATED HEARING EXHIBITS

Upon consideration of Non-Party SIGMA Corporation's Unopposed Motion for

In Camera Treatment of Certain Additional Designated Hearing Exhibits and the Declaration of

James McGivern in support thereof, it is hereby ORDERED that SIGMA's Motion is

GRANTED. It is FURTHER ORDERED that the identified portions of documents CX 1002 and

CX 1745 are afforded in camera treatment for a period of two (2) years from the date of this

Order.

It is FURTHER ORDERED that only authorized Federal Trade Commission

("Commission") personnel, and court personnel concerned with judicial review may have access

to the documents identified in SIGMA Corporation's Motion for In Camera Treatment of

Certain Additional Designated Hearing Exhibits, provided that I, the Commission, and reviewing

courts may disclose such in camera information to the extent necessary for proper disposition of

the proceeding.

ORDERED:

D. Michael Chappell

Chief Administrative Law Judge

Date:

DMEAST #15896714 v1
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRA TIVE LAW JUDGES
 

In the Matter of

PUBLIC

McWANE, INC.,

a corporation. Docket No. 9351

Certificate of Service and Regarding Electronic Submission

I certify that on November 7,2012, I submitted the "Unopposed Motion for In Camera

Treatment of Certain Additional Designated Hearing Exhibits" along with a proposed order and

Declaration of James McGivern, electronically in PDF format using the FTC's E-Filing System,

and also served a copy of the foregoing document in on the following by the method indicated:

Donald S. Clarke
 

Office of the Secretary
 

Federal Trade Commission
 

600 Pennsylvania Ave., NW, Rrn. H-l13
 

NW Washington, DC 20580
 

(unredacted version sent by hand delivery)

The Honorable D. Michael Chappell
 

Administrative Law Judge
 

Federal Trade Commission
 

600 Pennsylvania Ave., NW, Rrn. H-106
 

Washington, DC 20580
 

(unredacted version sent by hand delivery)

Edward Hassi
 

Geoffrey M. Green
 

Linda Holleran
 

Thomas H. Brock
 

Michael L. Bloom
 

Jeanine K. Balbach
 

DMEAST #15896714 v1
J. Alexander Ansaldo

Bureau of Competition

Federal Trade Commission

Washington, DC 20580

Complaint Counsel

(by email to ehassi@ftc.gov; ggreen@ftc.gov; lholleran@ftc.gov; tbrock@ftc.gov;

mjbloom@ftc.gov;jbalbach@ftc.gov; jansaldo@ftc.gov)

Joseph A. Ostoyich
 

William Lavery
 

Baker Botts L.L.P.
 

1299 Pennsylvania Ave., N.W.
 

Washington, D.C. 20004-2420
 

J. Alan Truitt
 

Thomas W. Thagard III
 

Maynard Cooper & Gale PC
 

1901 Sixth Avenue North
 

2400 Regions Harbert Plaza

Birmingham, AL 35203

Counsel for McWane, Inc.

(by email tOjoseph.ostoyich@bakerbotts.com;William.lavery@bakerbotts.com;

atruitt@maynardcooper.com)

I also certify that the electronic PDF copy of the foregoing document sent to the

Secretary of the Commission via the FTC E-Filing System is a true and correct copy of the

original in my possession, which is available for review by the parties and the adjudicator.

/s/ Matthew A. White

Matthew A. White

DMEAST #15896714 v1 2