UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of PUBLIC

MeW ANE, INC.,

a corporation, and Docket No.: 9351

STAR PIPE PRODUCTS, LTD.,

a limited partnership.

SIP INDUSTRIES' MOTION FOR IN CAMERA TREATMENT OF MATERIAL

PREVIOUSLY DESIGNATED AS CONFIDENTIAL

Pursuant to Rule 3.45(b) of the Federal Trade Commission Rules of Practice, 16 C.F. §

3.45(b), Scrrampore Industries Private (Ltd.), Inc., d/b/a SIP Industries ("SIP Industries"), a nonparty, hereby seeks in camera treatment for certain documents containing confidential information

produced in this proceeding. The public disclosure of such information would divulge SIP

Industries' confidential information to competitors and customers and thereby inflict serious harm

and irreparable injury on SIP Industries.

I. Factual Background

On or around March 9, 2010, the Federal Trade Commission ("FTC") began an

investigation, file No.1 01-0080, to determine whether McWane, Inc. (IMcWane") and Sigma

Corporation ("Sigma") had entered into or adopted any anti-competitive policies, agreements, or

programs related to the distribution pricing, and selling, of ductile iron pipe fittings (hereinafter

"DIPfl). On April 28, 2010, the rTC issued a Subpoena Ad Testificandum to Bharat Agrawal,

Vice President - Business Development of SIP Industries, to appear and give testimony regarding

the investigation. The FTC also issued a Subpoena Duces Tecum to SIP Industries for documents

07 27 2012 
pertaining to DIPF in SIP Industries' possession. SIP Industries produced responsive documents

on June 3, 2010 and Bharat Agarwal appeared at the investigation hearing on or around June 4,

2010.

On January 4, 2012, the FTC issued the Complaint initiating this proceeding against

McWane and Star Pipe Products, Ltd. ("Star Pipe") for engaging in collusive and exclusionary

conduct related to the marketing and selling of DIPF. On January 5, 2012, the Commission issued

a Protective Order governing discovery to protect the parties and third parties against improper use

and disclosure of confidential materials produced in the proceeding. Under the protective order,

any confidential material can only be disclosed to:

(a) the Administrative Law Judge presiding over this proceeding, personnel assisting

the Administrative Law Judge, the Commission and its employees, and personnel

retained by the Commission as experts or consultants for this proceeding; (b) judges

and other court personnel of any court having jurisdiction over any appellate

proceedings involving this matter; (e) outside counsel of record for any respondent,

their associated attorneys and other employees of their law firm(s), provided they

are not employees of a respondent; (d) anyone retained to assist outside counsel in

the preparation or hearing of this proceeding including consultants, provided they

arc not affiliated in any way with a respondent and have signed an agreement to

abide by the terms of the protective order; and (e) any witness or deponent who may

have authored or received the information in question. See Protective Order pg. 3

'17.

Furthermore, "[d]isclosure of confidential material to any person described in Paragraph 7

of this Order shall be only for the purposes of the preparation and hearing of thiS proceeding, or any

appeal therefrom, and for no other purpose whatsoever."

On February 17,2012, McWane issued its own Subpoena Duces Tecum to SIP Industries

for the production of certain documents and records pursuant to Federal Trade Commission Rules

of Practice 3.31 and 3.34(a), 16. C.f.R. §§ 3.31, and 3.34(a). On March 132012, SIP Industries

2
 
filed a Motion to Quash the Subpoena Duces Tecum from McWane, because the discovery requests

were overbroad and burdensome, but also because SIP Industries did not feel the confidentiality

order in place was sufficient to protect SIP Industries' confidential and proprietary information from

potentially being disclosed to its competitors. See SIP Industries Motion to Quash Subpoena Duces

Tecum. On April 23, 2012, Chief Administrative Law Judge Chappell signed an Order compel1ing

production of the documents; the order reiterates that any confidential information would only be

disclosed to the identified class of people in Paragraph 7 of the Protective Order and states that the

Protective Order is sufficient to protect SIP Industries' confidential information. See Order on SIP

Industries' Motion to Quash Subpoena pg. 5. In response, SIP Industries produced the documents

in question, designating these materials "Confidential" per the Protective Order.

On July 17,2012, Complaint Counsel and Counsel for McWane notified SIP Industries that,

in spite of the protective order on confidential in formation, both parties have marked certain SIP

Industries documents as exhibits and intend to offer them into evidence at the administrative trial

making them part of the public record. Complaint Counsel has identified the following documents

to be offered into evidence:

Exhibit No. Document Title Date Beg. Bates End Bates

CXOO03 Bharat Agarwal's 2009 Calendar 5/2112010 CXOO03-001 CXOO03-011

I

CXOO04 Email from Robert Marr to 9/2112009 CXOO04-001 CX0004-00 18

Bharat Agarwal re: DI Fitting

Usage

CXOOO5 E-mail from Tilak Agarwal to 711612009 CXOO05-001 CXOOO05-004

Hahrat Agarwal and Laxrnan

Agarwal re; Visit I

3
 
CX2521	 RESERVED FOR Designated 6/4/2010 CX2521-001 CX2521-001

Investigational Hearing

Transcript of Bharat Agarwal

CX2522	 RESERVED FOR Designated 5/25/2012 CX2522-001 CX2522-001

Deposition Transcript of Bharat

Agarwal

Counsel for McWane has identified the following documents to be offered into evidence:

Exhibit No. Document Title Date Beg. Bates End Bates

CXOO07 Email from Robert Marr to 10/22/2009 CXOOO7-001 CXOO07-001

Bharat Agarwal re: ready to

produce ductile

CXOO03 Bharat Agarwal's --

2009 Calendar 512112010 CXOO03-001 I CXOO03-011 I

-, SIP Industries Fitting Sales - - ,-

2008-2011

CX2522 Deposition of Bharat Agarwal 5/25/2012 -

Pursuant to Section 3.45(b), and because SIP Industries has continuously sought to prevent

the public disclosure of its confidential and proprietary information, SIP Industries now requests

in camera treatment for certain documents on Complaint Counsel's and McWane's Counsel's

exhibit list, including portions of the Agarwal deposition. The public disclosure ofthc documents

identified above would likely result in a clearly defined and serious injmy to SIP Industries, and

these documents should thus be afforded in camera treatment. in re Dura Lube Corp. 1999 FTC

LEXIS 255 (Dec. 23 1999); In rc Hoechst Marion Roussel. Inc., 2000 FTC LEXIS 157 (Nov. 22,

2000); In re Busic Research, In.c. 2006 FTC LEXIS 14 (Jan. 25,2006)..

4
 
II. Argument and Authorities

A. Legal Standard

Pursuant to Rule 3A5(b) of the Federal Trade Commission Rules of Practice, 16 C.F. §

3.45(b), the Administrative Law Judge may order materials or portions thereof offered into evidence

to be placed in camera on a finding that their public disclosure will result in a clearly defined

serious injury to the corporation requesting in camera treatment. HP. Hood & Sons, Inc., 58 F.T.C.

1184, 1188 (] 961). The showing can be made by establishing that the documents to be given in

camera treatment are sufficiently secret and sufficiently material to the corporation's business that

disclosure would result in a serious competitive injury. In re Gen. Foods Corp., 95 F.T.C. 352, 355

(1980).

In Bristol-Myers Co., 90 FTC 455, 456 (1977), the Court identified the following six factors

in determining whether an in camera applicant has made a sufficient showing:

(1) The extent to which the information is now outside of the applicant's business;

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

the appJicant'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.

5
 
Administrative law judges have broad discretion in applying these factors to determine

whether the information should be afforded in camera treatment. in re Gen. Food Copr., 95 F.T.C.

at 353. Furthermore, extending in camera treatment in appropriate cases dealing with third parties

is important to encourage cooperation with future proceedings before the commission. Kaiser

Aluminum & Chern. Cop., 103 F.Tc' 500 (1984); see also In re Crown Cork & Seal Co., 71 F.TC,

1714,1715 (1967)(stating that a request for in camera treatment by a non-party warrants 'special

solicitude') .

In addition, 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(Apirl 5, 1982); see Hood, 58 FTC at 1188-89; Kaiser Aluminum, 102 F.TC. at 500. Where in

camera treatment is granted for business records, such as business strategies, marketing plans,

pricing poJicies, or sales documents, it is typically provided for two to five years.

B.	 The proposed exhibits meet the legal standard for In Camera treatment because

the public disclosure would result in a clearly defined serious injury to SIP

Industries.

This motion is supported by the Declaration of Bharat Agarwal, Vice President - Business

Development for SIP, which is attached hereto as Exhibit A and incorporated herein by reference.

Additionally, a copy of the all documents that SIP Industries is seeking in camera treatment for is

attached as Exhibits D 1 - D7 and incorporated herein by reference.

1.	 Exhibits CX0003, CX0004, CX0005, CX0007, and SIP Industries Fitting

Sales for 2008-2011 meet the standard for in Camera treatment.

Exhibits CX0003, CX0004, CX0005, CX0007, and SIP Industries' Fitting Sales for 2008

- 2011 meet the standard for in camera treatment. These proposed exhibits by Complaint Counsel

6
 
and McWane's Counsel contain proprietary information regarding SIP Industries' business, which

if disclosed could be misused by SIP Industries' competitors and customers. Specifically, these

documents contain information regarding negotiations on SIP Industries' business dealings, SIP

Industries' sales of DIPF for years 2008-2011, SIP Industries' potential costs of doing business,

negotiations and meetings with SIP Industries' potential customers and clients, and negotiations on

various pricing structures and costs of doing business in various markets. The disclosure of this

information would inflict serious injury upon SIP Industries by allowing a rival competitor or

customer or client to gain a competitive advantage over SIP Industries in any future business

dealing. The public disclosure of these exhibits could give a competitor, current client, or future

client the blueprint for how SIP Industries develops and implements its strategic plans to grow its

business and market share. Disclosure of this information could severely limit SIP Industries ability

to effectively compete in various markets and locations giving outside parties undue leverage in any

future negotiation with SIP Industries.

Additionally, the information contained in these documents has not been disclosed or made

available to any person in the general public or SIP Industries employees and representatives other

than specific salesmen and management involved in the negotiations. SIP Industries has even taken

specific steps, such as labeling all communications privileged and confidential, to prevent disclosure

of this information outside of the intended recipient. The public disclosures of the information

contained in these exhibits would inflict serious and irreparable injury upon SIP Industries, and

accordingly SIP Industries requests in camera treatment for these exhibits.

2.	 Portions of Bharat Agarwal's Deposition Should be Afforded Tn

Camera Treatment

7
 
Complaint Counsel and McWane's Counsel have proposed to use specific excerpts from

Bharat Agarwal's deposition on May 25, 2010 as exhibits during the administrative law trial. SIP

Industries seeks to have in camera treatment for certain portions of Mr. Agarwal's deposition.

Attached to this motion as Exhibit B is a list of the deposition excerpts that SIP Industries seeks

in camera treatment for. The excerpts listed in Exhibit B concern SIP Industries' pricing

procedures, SIP Industries' sales and negotiations with customers and distributors, and SIP

Industries' strategic business decisions and internal market evaluation.

This information should be afforded in camera treat because: (1) it details how SIP

Industries prices their various products in different markets in relation to their customers and

competitors; (2) the public disclosure of this information would reveal SIP Industries' strategic

growth plans, revenue sources, ability to compete in certain markets, and other important aspects

of SIP Industries relations with its customers, clients, and distributors; (3) SIP Industries has

expended a considerable amount of time and money to develop the information and knowledge

contained in these excerpts, which is not readily available to the general public; and (4) SIP

Industries has taken steps to prevent the disclosure of this highly sensitive information from public

disclosure. If this in formation was publicly disclosed, it would severely hamper SIP Industries to

effectively compete in certain markets as both potential customers and competitors could utilize this

information to SIP Industries' detriment

3.	 Portions of Bharat Agarwal's Testimony at the Investigation Hearing

Should also be Afforded In Camera Treatment

Complaint Counsel and McWane's Counsel have also proposed to used specific excerpts

from Bharat Agarwal's testimony at the investigational hearing in front or the Federal Trade

8
 
Commission as exhibits. Attached as Exhibit C to this Motion is a list of the excerpts from the

investigational hearing that SIP Industries also wishes to have in camera treatment be extended to.

For the same reason in camera treatment should be extended to Bharat Agarwal's deposition

testimony, his testimony at the investigational hearing should also be afforded in camera treatment.

For the foregoing reasons and those articulated in the Declaration of Bharat Agarwal,

Serrampore Industries Private (Ltd.), Inc., d/b/a SIP Industries respectfully requests that this Court

grant in camera protection to all of the documents identified in this motion.

Respectfully submitted,

SHEINESS, SCOTT, GROSSMAN & COHN, L.L.P..

By: /s/ H. Miles Cohn

H. Miles Cohn

Texas State Bar No. 04509600

1001 McKinney, Suite 1400

Houston, Texas 77002-6323

(713) 374-7020 Telephone

(713) 374-7049 Facsimile

Attorneys for Non-Party

SERAMPORE INDUSTRIES PRIVATE (LTD.),

INC., D/B/A SIP INDUSTRIES

9
 
CERTIFICATE OF SERVICE

I certify that a true copy of SIP Industries' Motion for In Camera Treatment of Material

Previously Designated Confidential has been served, by United States mail, on the 2Th day of

July 2012, to the Administrative Law Judge and to all counsel of record, as follows:

The Honorable D. Michael Chappell
 

Federal Trade Commission
 

600 Pennsylvania Ave., NW, Rrn. H-110
 

Washington, D.C. 20580
 

Donald S. Clark
 

Secretary
 

Federal Trade Commission
 

600 Pennsylvania, Ave. NW, Rrn H-l13
 

Washington, D.C. 20580
 

Joseph A. Ostoyich
 

Andreas Stargard
 

William C. Lavery
 

Baker Botts L.L.P.
 

1299 Pennsylvania Avenue NW
 

Washington, DC 20004
 

J. Alan Truitt
 

Thomas W. Thagard III
 

Maynard Cooper and Gale, P.C.
 

1901 Sixth Avenue North
 

2400 Regions Harbert Plaza
 

Birmingham, AL 35203
 

J. Alexander Ansaldo
 

Attorney, Division of Anticornpetitive Practices
 

Bureau of Competition
 

Federal Trade Commission
 

60] New Jersey Ave., NW
 

Washington, DC 20580
 

Douglas M. Jasinski

J. Frank Hogue
 

White & Case L.L.P.
 

701 131h Street, NW
 

Washington, DC 20005
 

10
Gregory S.c. Huffman

Thompson & Knight L.L.P.

172 Routh Street, Suite 1500

Dallas, Texas 75201

/s/ H. Miles Cohn

H. Miles Cohn
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of PUBLIC

MeW ANE, INC.,

a corporation, and Docket No.: 9351

STAR PIPE PRODUCTS, LTD.,

a limited partnership.

PROPOSED ORDER ON SIP INDUSTRIES'

MOTION FOR IN CAMERA TREATMENT

Upon consideration of Serrampore Industries Private (Ltd.), Inc., d/b/a SIP Industries'

Motion lor In Camera Treatment of Material Previously Designated as Confidential, any

opposition thereto, any hearing thereon,

IT IS HEREI3Y ORDERED, that Serrampore Industries Private (Ltd.), Inc., d/b/a SIP

Industries Motion for In Camera Treatment of Material Previously Designated Confidential is

GRANTED;

IT IS FURTHER ORDERED that pursuant to Rule 3.45(b) of the Federal Trade

Commission Rules of Practice, 16 C.F. § 3.45(b), the following documents shall be subject to in

camera treatment and will be kept confidential and not placed on the public records of this

proceeding for 3 years,

Exhibit No. Document Title Date Beg. Bates End Bates

CXOO03 Bharat Agarwal's 2009 Calendar 5/2112010 CXOO03-001 CXOO03-011

CXOO04 Email from Robert Marr to 9/2112009 CXOO04-001 CXOOO4-0018

Bharat Agarwal re: DI Fitting

Usage
-------

CXOO05 E-mail from Tilak Agarwal to 7116/2009 CXOO05-001 I CXOOOO5-004

Bahrat Agarwal and Laxman

Agarwal re; Visit

CXOO07 Email from Robert Marr to 10/22/2009 CXOO07-001 CXOOO7-001

Bharat Agarwal re: ready to

I produce ductile

- SIP Industries Fitting Sales - - - 2008-2011 I

IT IS FURTHER ORDERED that pursuant to Rule 3.45(b) of the Federal Trade

Commission Rules of Practice, 16 C.F. § 3.45(b), the deposition excerpts identi fled in Exhibit B

hereto and the Investigational Hearing excerpts identified in Exhibit C hereto shall be subject to in

camera treatment and will be kept confidential and not placed on the public records of this

proceeding for 5 years.

D. Michael Chappell

Administrative Law Judge

Date:
EXHIBIT A
 

BHARAT AGARWAL'S DEC LARATION FOR IN CAMERA TREATMENT
 

MATERIAL REDACTED PURSUANT TO RULE 3.45(b) OF
 

THE FEDERAL TRADE COMMISSION RULES OF
 

PRACTICE, 16 C.F.R. § 3.45(b)
 
EXHIBITB
 

CX2522 DEPOSITION EXCERPTS FOR IN CAMERA TREATMENT
 

MATERIAL REDACTED PURSUANT TO RULE 3.45(b) OF
 

THE FEDERAL TRADE COMMISSION RULES OF
 

PRACTICE, 16 C.F.R. § 3.45(b)
 
EXHIBIT C

ex 2521 EXCERPTS FROM INVESTIGATION HEARING

FOR IN CAMERA TREATMENT

MATERIAL REDACTED PURSUANT TO RULE 3.45(b) OF
 

THE FEDERAL TRADE COMMISSION RULES OF
 

PRACTICE, 16 C.F.R. § 3.45(b)
 
EXHIBITS D-l - D-7
 

COPIES OF DOCUMENTS FOR IN CAMERA TREATMENT
 

MATERIAL REDACTED PURSUANT TO RULE 3.45(b) OF
 

THE FEDERAL TRADE COMMISSION RULES OF
 

PRACTICE, 16 C.F.R. § 3.45(b)