01 13 2012 01 13 2012

558089

In the Matter of 

Graco Inc., et al. 

UNITED STATES OF AMERICA 

THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINSTRATIVE LAW JUDGES 

) 

) 

) 

) 

) 

DOCKET NO. 9350 

PUBLIC 

COMPLAINT COUNSEL'S MOTION TO PLACE THE UNREDACTED COMPLAINT 

ON THE PUBLIC RECORD 

Complaint Counsel respectfully moves for an order placing an unredacted version of the 

Complaint on the public record. Complaint Counsel initially placed a redacted version of the 

Complaint on the public record, after providing Respondents' counsel the opportunity to identify 

potentially sensitive information. The redacted material quotes Respondents' documents and a 

Graco Inc. ("Graco") executive. l The Federal Trade Commission ("Commission" or "FTC") 

protected these quotes from public disclosure during the Commission's pre-Complaint antitrust 

investigation. That investigation ended on December 15, 2011, when the Commission filed the 

Complaint. The redacted material does not merit continuing confidentiality. 

Respondents illinois Tool Works Inc. and ITW Finishing LLC (collectively "ITW") do 

not oppose disclosing the redacted material received l1-mn ITW, comprising all of the redacted 

material in paragraphs 5 and 22 ofthe Complaint. Respondent Graco opposes this motion. 

Complaint Counsel has moved to unseal a virtually-identical version of the Complaint in the 

related district court proceeding. Judge Robert 1. Wilkins set a briefing schedule for that motion 

tenninating on January 19, 2012. 

1 See 'lI'lI1-3, 5-6, 12, 18-19, 22-23, and 40 of the Complaint. 
As discussed below, the longstanding public policy in favor of open access to 

adjudicative records, as reflected in the COlmnission's Rules of Practice and the applicable law, 

creates a strong presumption in favor of public access to the full Complaint. 

ARGUMENT 

There is a strong presumption in favor of open access to Commission adjudicative 

proceedings. Detroit Auto Dealers Ass 'n, Inc., D-9189, 1985 FTC LEXIS 90, at *3 (Jtme 7, 

1985) (citing E. Griffith Hughes, Inc. v. FTC, 63 F.2d 362, 363 (D.C. Cir. 1933»; see also H.P. 

Hood & Sons, Inc., D-7709, 1961 FTC Lexis 368, at *7 (Mar 14,1961) ("To foreclose [FTC] 

hearings and the evidence adduced therein from the scrutiny of ... interested persons would 

serve in a large measure to defeat the very reason for our existence."). Open proceedings pennit 

the public to evaluate the "fairness of the Commission's work," and they provide "guidance to 

persons affected by [the Commission's] actions." Intel Corp., D-9288, 1999 FTC LEXIS 227, at 

*1 (Feb. 23,1999) (citing The Crown Cork & Seal Co., Inc., 1967 FTC LEXIS 128, at *2 (June 

26,1967». Neither embalTassment nor the desire to protect business information are sufficient 

bases for obscuring material from the public. See H.p. Hood, 1961 FTC LEXIS at *14 ("Quite 

clearly the mere embarrassment ofthe movant should not foreclose public disclosure. Nor 

should documents be sealed simply on the ground that they contain infonnation which 

competitors for business reasons are extremely desirous to possess."). Instead, Respondent 

Graco must demonstrate that it will suffer "a clearly defined, serious injury" as a result of 

disclosure. 16 C.F.R. § 3.45(b). 

Here, the redacted material quotes Respondents' documents and a Graco executive 

discussing competition and the likely impact of the acquisition. The Complaint contains no trade 
secrets and no competitively sensitive information. Moreover, the redacted quotes implicate the 

very heart of the case, making public disclosure more important. 

Without this information in the public record, the matter's ultimate resolution is less 

useful as a guide to practitioners and the business community. The public has a right to see the 

exact wording of any non-privileged, non-confidential information in Respondents' documents 

and investigational hearings. The need for open proceedings is particularly impOliant in light of 

the tremendous interest in antitrust enforcement. 

CONCLUSION 

For the foregoing reasons, Complaint Counsel respectfully requests that the Court 

authorize placement ofthe original, unredacted Complaint on the public record. 
Dated: January 13,2012 

E8 

Assistant Director 

PETER RICHMAN 

MARC W. SCHNEIDER 

REBECCA P. DICK 

BRIAN J. TELPNER 

ROBERT FRIEDMAN 

AMANDA HAMILTON 

CATHLIN TULLY 

ANNA CHEHTOVA 

JEFFREY OLIVER 

JESSICA S. DRAKE 

Attorneys 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

Telephone: (202) 326-2805 

Fax: (202) 326-3383 

pbroyles@ftc.gov 

Complaint Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that I caused to be filed via hand a paper original and a true and correct 

copy by electronic mail of the foregoing Complaint Counsel's Motion to Place the Unredacted 

Complaint on the Public Record, upon: 

The Honorable D. Michael Chappell 

Chief Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, H-106 

Washington, DC 20580 

I hereby certify that I caused to be delivered by the FTC E-Filing System a true and 

correct copy of the foregoing Complaint Counsel's Motion to Place the Unredacted Complaint 

on the Public Record upon: 

Donald S. Clark 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, H-135 

Washington, DC 20580 

I also certify I delivered via electronic mail a copy of the foregoing Complaint COlillsel's 

Motion to Place the Unredacted Complaint on the Public Record upon: 

Richard G. Parker 

O'Melveny & Myers LLP 

1625 Eye Street, NW 

Washington, DC 20006 

(202) 383-5380 

RParker@omm.com 

Katrina Robson 

O'Melveny & Myers LLP 

1625 Eye Street, NW 

Washington, DC 20006 

(202) 220-5052 

KRobson@omm.com 

Counsel for Graco Inc. 
Dated: January 13, 2012 

J. Robert Robertson 

Hogan Lovells US LLP 

Columbia Square 

555 Thirteenth Street, NW 

Washington, DC 20004 

(202) 637-5774 

Robby.Robelison@hoganlovells.com 

Logan M. Breed 

Hogan Lovells US LLP 

Columbia Square 

555 Thirteenth Street, NW 

Washington, DC 20004 

(202) 637-6407 

Logan.Breed@hoganlovells.com 

Counsel for Illinois Tool Works Inc. and Illinois Tool Works 

Finishing LLC 

2 

Amanda 

BY:~~ Hamilton 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2050 

Fax: (202) 326-3383 

AHamilton1@ftc.gov 

Complaint Counsel 
UNITED STATES OF AMERICA 

THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINSTRATIVE LAW JUDGES 

 ) 

In the Matter of ) DOCKET NO. 9350 

 ) 

Graco Inc., et al. ) PUBLIC 

 ) 

[PROPOSED] ORDER GRANTING COMPLAINT COUNSEL’S MOTION TO PLACE THE 

UNREDACTED COMPLAINT ON THE PUBLIC RECORD

On January 13, 2012, Complaint Counsel submitted a Motion to Place the Unredacted 

Complaint on the Public Record. Complaint Counsel states that after consultation with Respondents’ 

Counsel, Complaint Counsel initially placed a redacted version of the Complaint on the public 

record, in order to protect from disclosure quotes from Respondents’ documents and prior testimony 

that had been protected from disclosure during the pre-Complaint investigation. Complaint Counsel 

argues that the redacted text does not merit continued confidentiality. 

Complaint Counsel argues that making the Complaint public will also serve the policy of 

open access to the Commission’s adjudicative proceedings. Complaint Counsel notes that the 

redacted material in the Complaint does not reveal trade secrets, customer-specific information, or 

other specific material that could be considered sensitive. 

 Based on the foregoing, Complaint Counsel’s Motion to Place Complaint on the Public 

Record is hereby GRANTED. 

ORDERED: 

 ________________________ 

Dated: ______________ D. Michael Chappell 

 Chief Administrative Law Judge
In the Matter of 

Graco Inc., et al. 

UNITED STATES OF AMERICA 

THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINSTRATIVE LAW JUDGES 

) 

) 

) 

) 

DOCKET NO. 9350 

PUBLIC 

----------------------) 

STATEMENT REGARDING MEET AND CONFER 

Pursuant to paragraph 4 of the Scheduling Order issued January 12, 2012, Complaint 

Counsel conferred telephonically with Respondents' Counsel regarding Complaint Counsel's 

Motion to Place the Umedacted Complaint on the Public Record ("Motion"). Respondents 

Illinois Tool Works Inc. and ITW Finishing LLC (collectively "ITW") do not oppose disclosing 

the redacted material received from ITW, comprising all of the redacted material in paragraphs 5 

and 22 of the Complaint. Complaint Counsel attempted to confer with Graco Inc. ("Graco") but 

received no definitive response. Graco opposed a nearly identical motion in the district court 

action. 
Dated: January 13, 2012 

B 

Assistant Director 

PETER RICHMAN 

MARC W. SCHNEIDER 

REBECCA P. DICK 

BRIAN J. TELPNER 

ROBERT FRIEDMAN 

AMANDA HAMILTON 

CATHLIN TULLY 

ANNA CHEHTOVA 

JEFFREY OLIVER 

JESSICA S. DRAKE 

Attorneys 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

Telephone: (202) 326-2805 

Fax: (202) 326-3383 

pbroyles@ftc.gov 

Complaint Counsel