STATEMENT OF COMMISSIONER J. THOMAS ROSCH, 

CONCURRING IN PART AND DISSENTING IN PART IN THE

MATTER OF MCWANE, INC. AND STAR PIPE PRODUCTS, LTD., 

AND IN THE MATTER OF SIGMA CORPORATION 

FTC File No. 101 0080 

January 4, 2012 

The Commission has voted separately (1) to issue a Part 3 

Administrative Complaint against Respondents McWane, Inc. (“McWane”) 

and Star Pipe Products, Ltd. (“Star”), and (2) to accept for public comment a 

Consent Agreement settling similar allegations in a draft Part 2 Complaint 

against Respondent Sigma Corporation (“Sigma”). While I have voted in 

favor of both actions, I respectfully object to the inclusion—in both the Part 

3 Administrative Complaint and in the draft Part 2 Complaint—of claims 

against McWane and Sigma, to the extent that such claims are based on 

allegations of exclusive dealing, as explained in Part I below. I also 

respectfully object to naming Star, a competitor of McWane and Sigma, as a 

Respondent in the Part 3 Administrative Complaint, which alleges, inter 

alia, that Star engaged in a horizontal conspiracy to fix the prices of ductile 

iron pipe fittings (DIPFs) sold in the United States, and in a related, 

information exchange, as described in Part II below. 

I. 

For reasons similar to those that I articulated in a recent dissent in 

another matter, Pool Corp., FTC File No. 101-0115, http://www.ftc.gov/os/ 

caselist/1010115/111121poolcorpstatementrosch.pdf, I do not think that the 

Part 3 Administrative Complaint against McWane and the draft Part 2 

Complaint against Sigma adequately allege exclusive dealing as a matter of 

law. In particular, there is case law in both the Eighth and Ninth Circuits 

blessing the conduct that the complaints charge as exclusive dealing. 

II. 

I also object to the allegations in the Part 3 Administrative Complaint 

and in the draft Part 2 Complaint that name Star as a co-conspirator in the 

alleged horizontal price-fixing of DIPF sold in the United States and the 
- 2 - 

related, alleged DIFRA information exchange.1 I do not consider naming 

Star, along with McWane and Sigma, as a co-conspirator to be in the public 

interest. There are at least three reasons why this is so. First, although 

there may be reason to believe Star conspired with McWane and Sigma in 

this oligopolistic industry, Star seems much less culpable than the others. 

More specifically, I believe that we must be mindful of the consequences of 

public law enforcement in assessing whether the public interest favors 

joining Star as a co-conspirator.2 Second, I am concerned that a trier of fact 

may find it hard to believe that Star could be both a victim of McWane’s 

alleged “threats” to deal exclusively with distributors, and at more or less 

the same time (the “exclusive dealing” program began in September 2009), a 

co-conspirator with McWane in a price-fixing conspiracy (June 2008 to 

February 2009). (This concern further explains why I do not have reason to 

believe that the exclusive dealing theory is a viable one.) Third, I am 

concerned that Star’s alleged participation in the price-fixing conspiracy and 

information exchange relies, in part, on treating communications to 

distributors as actionable signaling on prices or price levels.3 See, e.g., 

Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287, 1305–07 (11th 

Cir. 2003). 

                                                            

1 See McWane/Star Part 3 Administrative Compl. ¶¶ 29–38, 64–65; Sigma draft Part 2 

Compl. ¶¶ 23–33. 

2 See Credit Suisse Secs. (USA) LLC v. Billing, 551 U.S. 264, 281–84 (2007) (questioning 

the social benefits of private antitrust lawsuits filed in numerous courts when the 

enforcement-related need is relatively small); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

557–60 (2007) (expressing concern with the burdens and costs of antitrust discovery, and 

the attendant in terrorem effect, associated with private antitrust lawsuits). 

3 McWane/Star Part 3 Administrative Compl. ¶ 34b; Sigma draft Part 2 Compl. ¶ 29.