OR\G\NAL 


UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

J. Thomas Rosch 

Edith Ramirez 

Julie Brill 

Maureen K. Ohlhausen 

) PUBLIC 

In the Matter of ) 

) 

McW ANE, INC., ) DOCKET NO. 9351 

a corporation. ) 

) 

COMPLAINT COUNSEVS OPPOSITION TO RESPONDENT'S 


MOTION FOR SUMMARY DECISION 


Richard A. Feinstein 

Director 

Peter J. Levitas 

Deputy Director 

Melanie Sabo 

Assistant Director 

Geoffrey M. Green 

Deputy Assistant Director 

Edward D. Hassi 

ChiefTrial Counsel 

Michael J. Bloom 

Assistant Director for Policy & Coordination 

Jeanine Balbach 

Attorney, Office ofPolicy & Coordination 

Dated: June 22,2012 

Linda Holleran 

Thomas H. Brock 

J. Alexander Ansaldo 

Andrew Mann 

Monica Castillo 

Attorneys 

Federal Trade Commission 

Bureau ofCompetition 

Anticompetitive Practices Division 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-3496 

Email: ehassi@ftc.gov 

Counsel Supporting the Complaint 
TABLE OF CONTENTS 

Table ofAuthorities. .... ........ ... . .. . .. ... . . . ... ............ ............. ....... .... ............. ... .. . . ii 


Cast ofCharacters.......................................................................................... vi 


STATEMENT OF FACTS ................................................................................ 3 


A. Industry Background ........................................................................... 3 


B. Restraints on Price Competition ............................................................... 3 


C. McWane's Strategy ofExclusion .............................................................. 8 


ARGUMENT ................................................................................................ 11 


I. Mc Wane Participated in a Conspiracy to Restrain Price Competition ................................ 11 


II. Mc Wane Invited Collusion .................................................................................................. 21 


III. Mc Wane Participated in an Illegal Conspiracy to Exchange Sales Information ................. 24 


IV. McWane Monopolized the Domestic Fittings MarkeL ....................................................... 26 


v. McWane Excluded Sigma From the Domestic Fittings MarkeL........................................ 28 


CONCLUSION ............................................................................................. 31 

TABLE OF AUTHORITIES 

Cases 


Alexander v. Phoenix Bond & Indemnity Co., 149 F. Supp. 2d 989 (N.D. Ill. 2001) .................. 21 


Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................. 11 


Apex Oil Co. v. DiMauro, 822 F.2d 246 (2d Cir. 1987) ............................................................... 19 


Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985) ................................... 27 


Broadcom Corp. v. Qualcomm, Inc., 501 F.3d 297 (3d Cir. 2007) .............................................. 26 


City o/Tuscaloosa v. Harcros Chemicals, 158 F.3d 548 (11th Cir. 1998) .................................. 13 


Conwood Co. v. United States Tobacco Co., 290 F.3d 768 (6th Cir. 2002) ................................. 26 


Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) ........................................ 13 


Engine Specialties, Inc. v. Bombardier, Ltd, 605 F.2d 1 (1st Cir. 1979) ..................................... 29 


Fashion Originators' Guild, Inc. v. Fed Trade Comm'n, 312 U.S. 457 (1941) .......................... 22 


Fed Trade Comm 'n v. Brown Shoe Co., 384 U.S. 316 (1966) .................................................... 22 


Fed Trade Comm 'n v. Cement Inst., 333 U.S. 683 (1948) .......................................................... 22 


Fed Trade Comm 'n v. Motion Picture Adver. Servo Co., 344 U.S. 392 (1953) ........................... 22 


Fed Trade Comm 'n v. Texaco, Inc., 393 Us. 223 (1968) ........................................................... 22 


Image Tech. Servs. v. Eastman Kodak Co., 125 F.3d 1195 (9th Cir. 1997) ................................. 26 


In re B.A.T. Indus., Ltd, 104 F.T.C. 852 (1984) ........................................................................... 29 


In re Baby FoodAntitrust Litig., 166 F.3d 112 (3d Cir. 1999) .............................................. 13, 19 


In re De/taiAirTran Baggage Fee Antitrust Litig., 2012-1 Trade Cas. (N.D. Ga. 2010) ............. 16 


In re EPDMAntitrust Litig., 681 F. Supp. 2d 141 (D. Conn. 2009) ............................................. 16 


In re Flat Glass Litig., 385 F.3d 350 (3d Cir. 2004) ................................................... 13, 14, 16,23 


In re High Fructose Corn Syrup Antitrust Litig., 295 F .3d 651 


(7th Cir. 2002) ................................................................................................... 11, 14,20,21,23 


ii 
In re High Pressure Laminates Antitrust Litig., 2006-1 Trade Cas. 


CCH ~ 75,298 (S.D.N.Y. 2006) ................................................................................................ 20 


In re LinerboardAntitrust Litig., 504 F. Supp. 2d 38 (E.D. Pa. 2007) ......................................... 15 


In re Petroleum Products Antitrust Litig., 906 F.2d 432 


(9th Cir. 1990) ............................................................................................. 12, 14, 19,20,24,25 


In re Scrap Metal Antitrust Litig., 2006 U.S. Dist. LEXIS 75873 


(N.D. Ohio 2006), aff'd, 527 F.3d 517 (6th Cir. 2008) ............................................................ 18 


In re Sulfuric AcidAntitrust Litig., 743 F. Supp. 2d 827 (N.D. Ill. 2010) .................................... 15 


In re Text Messaging Antitrust Litig., 630 F .3d 622 (7th Cir. 2010) ............................................ 14 


Isaksen v. Vermont Castings, Inc., 825 F.2d 1158 (7th Cir. 1987) ............................................... 13 


LePage's, Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) ...................................................................... 27 


Liu v. Amerco, 677 F.3d 489 (1st Cir. 2012) ................................................................................ 23 


Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................... 11 


Merck-Medco Managed Care, LLC v. Rite Aid Corp., 1992-2 Trade Cas. ~ 72,640 


(4th Cir. 1999) ........................................................................................................................... 19 


Minpeco, SA. v. ContiCommodity Servs., Inc., 673 F. Supp. 684 (S.D.N.Y. 1987) .................... 14 


Omega Envt'l v.Gilbarco, Inc., 127 F.3d 1157 (9th Cir. 1997) .................................................... 27 


Palmer v. BRG o/Georgia, Inc., 498 U.S. 46 (1990) ................................................................... 28 


Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 


F.2d 1224 (3d Cir. 1993) .............................................................................................. 14, 19,20 


RelMax Int'l v. Realty One, Inc. 173 F.3d 995 (6th Cir. 1999) .............................................. 16,20 


Spirit Airlines v. Northwest Airlines, 431 F.3d 917 (6th Cir. 2005) ............................................. 26 


Todd v. Exxon Corp., 275 F.3d 191 (2d Cir. 2001) ...................................................................... 20 


US v. Dentsply Int'l, 399 F.3d 181 (3d Cir. 2005) ...................................................................... 27 


United States v. American Airlines, 743 F.2d 1114 (5th Cir. 1984) ..: .......................................... 23 


iii 

United States v. Andreas, 216 F.3d 645 (7th Cir. 2000) ......................................................... 20,21 


United States v. Beaver, 515 F.3d 730 (7th Cir. 2008) ........................................................... 18,21 


United States v. Citizens & Southern National Bank, 422 U.S. 86 (1975) ................................... 24 


United States v. Consolidated Packaging Corp., 575 F.2d 117 (7th Cir. 1978) ........................... 13 


United States v. Container Corp., 393 U.S. 333 (1969) ........................................................ , 17,25 


United States v. Giordano, 261 F.3d 1134 (11th Cir. 2001) ......................................................... 18 


United States v. Grinnell Corp., 384 U.S. 563 (1966) .................................................................. 26 


United States v. Microsoft Corp., 253 F.3d 34, (D.C. Cir. 2001) ........................................... 26,27 


United States v. SKW Metals & Alloys, Inc., 195 F.3d 83 (2d Cir. 1999) .................................... 21 


United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) ................................................... 22 


Weit v. Continental Illinois National Bank, 641 F .2d 457 (7th Cir. 1981) ................................... 14 


West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85 (3d Cir. 2010) ....................... 13 


Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287 (11th Cir. 2003) ................................ 19 


Statutes 

The Sherman Act (15 U.S.C. § 1-2) ................................................................................. 21,22,23 


The FTC Act (15 U.S.C. § 45) ................................................................................................. 2,22 


Other Authorities 

Complaint Counsel's Separate And Concise Statement of Material Facts As To Which 


There Is A Genuine Issue For Trial submitted in oppositiop. to Respondent's Motion 


For Summary Decision ............................................................................................................... 3 


George A. Hay, Oligopoly, Shared Monopoly, andAntitrust Law, 67 CORNELL L. 


REv.{1982) ............................................................................................................................... 25 


PHILLIPE. AREEDA& HERBERT HOVENKAMP, VI~~ 1404, 1410c, 1419, 1429 


ANTITRUSTLAw(3ded.2012) ......................................................................... 12, 13, 14, 17,23 


PHILLIP E. AREEDA & HERBERT HOVENKAMP, VI ~ 1434B (2d ed. 2000) 

iv 

ANTITRUST LAW (3d ed. 2012) ................................................................................................. 13 


Statement ofChairman Leibowitz, Commissioner Kovacic, and 


Commissioner Rosch, In the Matter ofU-Haul Int'l, Inc. and AMERCO, 


FTC File No. 081-0157 (June 9, 2010) ..................................................................................... 22 


Stephen Calkins, Counterpoint: The Legal Foundation ofthe Commission's 


Use ofSection 5 to Challenge Invitations to Collude is Secure, ANTITRUST Spring 2000 ....... 23 


William E. Kovacic, The Identification and ProofofHorizontal Agreements 


Under the Antitrust Laws, 38 ANTITRUST BULL. (1993) .......................................................... 13 


William H. Page, Communication and Concerted Action, 38 Loy. U. CHI. L.J. (2007) .............. 15 


v 
Cast of Characters 

-


-


-


vi 
-


vii 

INTRODUCTION 

Respondent Mc Wane, Inc. ("Mc Wane) is the largest seller of ductile iron pipe fittings 

("Fittings") in the United States, and the only significant domestic Fittings manufacturer. The 

Commission's Complaint charges that beginning in 2007, McWane engaged in an extensive 

array of anti competitive conduct, including: inviting competitors to fix prices, agreeing with 

competitors to fix prices, facilitating collusion by participating in an unlawful information 

exchange, foreclosing potential domestic competitors (Star and SIP) through exclusive dealing, 

and eliminating another potential domestic competitor (Sigma) by arranging for it to distribute 

McWane's domestic Fittings. 

McWane moves to dismiss all claims; however, McWane appears to fundamentally 

misunderstand the summary decision process. McWane's motion rests on a series of denials, but 

the motion and those denials, ignore the overwhelming contemporaneous evidence supporting 

the Commission's Complaint. Moreover, many ofthe witnesses on whose testimony McWane's 

motion rests, professed not to recall the critical events, such as pricing communications with 

competitors when confronted with contemporaneous evidence ofthose communications. That a 

respondent is able to identify a thread of evidence in support ofits defense is not a sufficient 

basis for summary decision - not when the record also includes substantial conflicting evidence 

on the very same issue. 

There is substantial evidence that McWane agreed with competitors to restrain Fittings 

price competition. This includes classic "plus factors," such as evidence of a written plan to 

conspire, conduct contrary to unilateral interest, and extensive inter-firm communications on 

price and pricing strategy. That evidence contradicts the McWane witnesses' denials of 

1 

participating in a conspiracy and raises a material issue of fact that precludes summary decision. 

Point I, infra. 

Further, the claim that Section 5 ofthe FTC Act does not 

reach an invitation to collude is legally incorrect. Point II, infra. 

There is substantial evidence that the exchange of sales information among Fittings 

sellers was intended to and did facilitate collusion. McWane's claim that the conduct is per se 

lawful lacks any case support and is legally incorrect. Point III, supra. 

There is substantial evidence that McWane's exclusive dealing policy impeded Star's 

market entry. 

Competitive harm remains a disputed issue. Point IV, infra. 

There is substantial evidence that Sigma intended to enter the domestic Fittings market, 

was prepared to do so, and took affirmative steps toward entry; 

Point V, infra. 

Therefore, McWane's motion for summary decision should be denied as to all claims. 

2 

I 

I 

STATEMENT OF FACTS 

A. Industry Background 

Fittings are a component ofthe pipeline systems that are used to transport drinking and 

waste water in municipal distribution systems. CCS ~ 2.1 Fittings are used to join pipes, valves, 

and hydrants, and to change or direct the flow ofwater. Id These are commodity products 

produced to standard, industry-wide specifications. CCS ~ 3. A waterworks system cannot 

operate without Fittings, and so demand is inelastic. CCS ~ 4. Some waterworks projects are 

required by law to utilize Fittings that are manufactured in the United States. CCS ~ 5. 

There are three primary Fittings sellers in the United States ("Sellers"), collectively 

Respondent McWane_ Sigma Corporation 

("Sigma")_ and Star Pipe Products, Ltd. ("Star")_ CCS ~ 6. As of2008, 

Sigma and Star imported and sold only Fittings that were manufactured outside ofthe United 

States, primarily in China. CCS ~ 7. Only McWane owned and operated domestic foundries (in 

addition to selling imported product). Id. I. 

McWane, Sigma, and Star sell Fittings to independent wholesale distributors, known as 

"waterworks distributors." CCS ~ 8. The end users ofFittings are typically municipal and 

regional water authorities. CCS ~ 10. 

B. Restraints on Price Competition 

During 2007, the Fittings industry experienced a period of intense competition and 

declining prices. CCS ~ 12. The common industry practice is for the Sellers to publish identical 

list prices, and state-by state discounts known as multipliers. 

1 CCS _ refers to Complaint Counsel's Separate And Concise Statement OfMaterial Facts As To Which There 

Is A Genuine Issue For Trial submitted in opposition to Respondent's Motion For Summary Decision. 

3 

·CCS~l1. 

CCS ~~ 13-14,17-18. _ 


CCS ~ 14. 

ccs ~~ 15-18. 

Id._ 

ccs ~ 18. 

.CCS~26._ 

CCS ~27b. 

. CCS ~27d. 

ccs ~~ 28, 30-98. 


ccs ~~ 29-98. 

4 

CCS ,-r30. 

On January 11,2008, McWane disseminated a pricing letter to its distributors. CCS,-r 33. 

·1 _Id. 

CCS,-r,-r 35-36·11 

CCS ,-r,-r 35a, 36-38. Publicly, both Sigma and Star 

announced increases in list prices identical to the McWane announcement. CCS,-r,-r 35c, 37 


_.CCS,-r,-r 35, 36c, 38. 

CCS,-r36c._ 

Id. 

Id. 

5 

ccs ~~ 46-48. 

. CCS ~ 49. 

CCS ~~ 50,52. 

ccs ~~ 52-53. 

Id. 

_CCS~57. 

CCS ~~ 57-58. 

CCS ~ 59. 

On May 7, 2008, McWane disseminated a letter to its Fittings distributors. CCS ~ 60. 

CCS~61. 

CCS ~~ 62-64. 

CCS~ 66. 

6 

· I CCS" 67,69-72. 

: 

IICCS,75. 

CCS '73. 

CCS,,73-74. _ 

_CCS,77. CCS '78. 

CCS " 80-81. 


This is an 

application of basic oligopoly theory. 

CCS " 88-9611 

CCS " 95-96. 


7 

CCS~96. 

C. McWane's Strategy ofExclusion 

The American Recovery and Reinvestment Act of2009 ("ARRA"), enacted by Congress 

in February 2009, allocated more than $6 billion to water infrastructure projects, conditioned on 

the use of domestically produced materials, including Fittings, in those projects (the "Buy 

American" requirement). CCS ~ 99. 

ARRA significantly altered the competitive dynamics ofthe Fittings industry. CCS ~ 

100. 

Id. 

• CCS ~~ 106-137. 


CCS ~~ 138-207. 

Keeping Sigma out ofthe Market. 

CCS ~~ 116-20. 

Id. 

8 

ccs~~ 120-23._ 


ccs ~~ 124-26. 

CCS ~~ 121; 131-32. 

ccs ~ 137. 

ccs ~ 135. 

Id. 

Keeping Star out ofthe Market. 

ccs ~~ 140-151. 

ccs~ 

140. 


_SeeCCS~167. 

9 
Id. 

_ CCS,-r lOS. On September 22,2009 McWane forwarded a letter to waterworks 

distributors announcing the company's new policies governing the sale of domestic Fittings. 

CCS,-r 172. 

CCS,-r,-r 174-76._ 

CCS,-r,-r 

174-7S. 

CCS,-r17S. 

CCS ,-r,-r 182-202. 

CCS,-r182. _ 

CCS,-r 182. 

McWane's exclusive dealing policy had a substantial negative effect upon consumers. I 

CCS ,-r207. 

CCS,-r,-r 204-0S. 

10 

CCS ~~ 153-158. 

ARGUMENT 

A motion for summary decision should be denied where there is a genuine issue of 

material fact to be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 

(1986). In making this judgment, the Commission must construe the evidence in the light most 

favorable to the party opposing summary decision, giving that party the benefit ofall reasonable 

inferences. Matsushita Elec. Indus. Co. v. Zenith Radio Corp;, 475 U.S. 574, 587-88 (1986). 

Judge Posner has identified three ''traps'' that a court must avoid when asked to enter 

summary judgment dismissing a price-fixing claim. In re High Fructose Corn Syrup Antitrust 

Litig., 295 F.3d 651, 655-56 (7th Cir. 2002). First, the court should not weigh conflicting 

evidence or evaluate credibility, but should instead determine whether there is a genuine issue. 

Id. at 655. Second, the court should not require the plaintiff to submit an item of evidence that is 

sufficient in itself to prove a conspiracy. The question for the court is whether a reasonable fact 

finder, considering the evidence as a whole, could conclude that it is more likely than not that the 

defendant has conspired to fix prices. Id. at 656. Third, the court should not fail to distinguish 

between the existence ofa conspiracy and its efficacy. An agreement to fix prices is per se 

unlawful "even ifmost or for that matter all transactions occur at lower prices." Id. 

I. McWane Participated in a Conspiracy to Restrain Price Competition 

11 

CCS~ 

13. 

_ CCS ~~ 36-38. 


The central issue presented by McWane's motion for summary decision is how to explain 

the Fittings market's dramatic transformation during 2008. 

The theory of interdependence 

(sometimes referred to as oligopoly price leadership) posits that in a highly concentrated market 

any single firm's price and output decisions will have a noticeable impact on the market and on 

its rivals. Competing firms may be able to raise prices to supra-competitive levels by observing 

and reacting to the price and output decisions of a market leader.2 

2 See In re Petroleum Products Antitrust Litig., 906 F.2d 432, 443 (9th Cir. 1990); PHILLIP E. AREEDA & HERBERT 

HOVENKAMP, VI ANTITRUST LAW ~ 1429 (3d ed. 2012). 

12 

The better explanation for the sharp transformation in the Fittings market is that sellers 

were conspiring (acting in "rn,,,,,,tof- Concerted action is established 

where two or more distinct entities share "a unity ofpurpose, or a common design and 

understanding, or a meeting ofthe minds," or a conscious commitment to a common scheme. 

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771 (1984).3 A more functional 

definition, favored by some commentators, is that concerted action involves a mutual exchange 

of assurances to adhere to a common course ofaction. In re Flat Glass Litig., 385 F.3d 350, 361 

(3d Cir. 2004) (PHILLIP E. AREEDA & HERBERT HOVENKAMP, VI ANTITRUST LAW,-r 1434b (2d 

ed.2000)).4 Agreement may be shown through direct or circumstantial evidence, or a 

combination ofthe two. West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85, 99 (3d 

Cir.2010). Circumstantial evidence that supports an inference of conspiracy - that tends to 

exclude the possibility of independent action - is referred to by the courts as a plus factor. City 

o/Tuscaloosa v. Harcros Chemicals, 158 F.3d 548, 571 n.35 (l1th Cir. 1998). 

The exchange of assurances proscribed by the antitrust laws need not be explicit, as in 

"I promise to do X provided that you promise to do Y." Reciprocal assurances may be 

communicated by vague words and even by conduct. Isaksen v. Vermont Castings, Inc., 825 

F.2d 1158, 1164 (7th Cir. 1987); PHILLIP E. AREEDA & HERBERT HOVENKAMP, VI ANTITRUST 

LAW,-r,-r 1404, 1410c (3d ed. 2012). As the Seventh Circuit has noted, the law of conspiracy "has 

some obligation to keep up with the ingenuity and subtlety ofsophisticated businessmen ..." 

United States v. Consolidated Packaging Corp., 575 F.2d 117, 126 (7th Cir. 1978). 

3 Courts use the shorthand phrase "concerted action" to refer to any fonn of activity meeting the Section 1 "contract 


... combination or conspiracy" requirement. In re Baby FoodAntitrust Litig, 166 F.3d 112, 117 n. 3 (3d Cir. 


1999). 


4 See also William E. Kovacic, The Identification and ProofofHorizontal Agreements Under the Antitrust Laws, 38 


ANTITRUST BULL. 5,37 (1993). 


13 

Again, an antitrust conspiracy may be established through circumstantial evidence alone. 

In re Petroleum Products Antitrust Litig., 906 F.2d 432, 439 (9th Cir. 1990).5 This means that 

liability may be established without a confession from any ofthe alleged conspirators. See High 

Fructose Corn., 295 F.3d at 662. And a denial of conspiracy by the alleged conspirators does 

not automatically entitle a defendant to summary dismissal ofthe claim. Minpeco, S.A. v. 

ContiCommodity Servs., Inc., 673 F. Supp. 684, 697 (S.D.N.Y. 1987). 

See Weit v. Continental Illinois National Bank, 641 F.2d 

457,461-62 (7th Cir. 1981). 

The evidence set forth by Complaint Counsel is more than sufficient to meet that burden. 

The evidence in this case establishes a range ofplus factors recognized by the courts, and it 

strongly supports the conclusion that McWane and its rivals conspired to restrain price 

competition in the Fittings market: 

(a) Industry structure susceptible to price fixing. The Fittings industry is characterized by 

few sellers, homogeneous product, and inelastic demand. These factors indicate that the market 

is conducive to price fixing, and further that the sellers have a motive to conspire. In re Text 

Messaging Antitrust Litig., 630 F.3d 622,627-28 (7th Cir. 2010) ("[A]n industry structure that 

facilitates collusion constitutes supporting evidence of collusion."); Flat Glass, 385 F.3d at 360. 

(b) Plan to restrain competition. 

5 Accord High Fructose, 295 F.3d at 662; Harcros, 158 F.3d at 569; Petruzzi's IGA Supermarkets, Inc. v. DarlingDelaware Co., Inc., 998 F.2d 1224, 1242 (3d Cir. 1993); see also, AREEDA&HoVENKAMP, supra note 1 at~ 1410c 

(3d ed. 20 12)(An agreement "can exist without any documentary trail and without any admission by the participants. 

Because insistence upon direct proofwould remove too many conspiracies from the embrace ofthe antitrust laws, 

the courts necessarily consider circumstantial proof of agreement."). 

14 

A similar scenario was present in In re Sulfuric AcidAntitrust Litig., 743 F. Supp. 2d 827 

(N.D. Ill. 2010). Plaintiffs alleged that manufacturers of sulfuric acid conspired to curtail 

production at their respective facilities. Defendants' motion for summary dismissal ofthis claim 

was denied. "The most damaging piece of evidence," in the court's view, was a document from 

the files ofone defendant laying out a plan for inducing its competitors to reduce output. Id. at 

858. Also tending to exclude the possibility that defendants had engaged in independent 

decision-making was "[ e ]vidence pointing to compliance with this plan" on the part of other 

competitors. !d. See also In re Linerboard Antitrust Litig., 504 F. Supp. 2d 38,59 (E.D. Pa. 

2007) (document showing one defendant's intention to collude with rivals is a plus factor, and 

informs the court's interpretation of all the evidence). 

(c) Price-related communications. In the model ofrecognized interdependence, firms 

observe and respond to their rivals' price and output decisions; that is, firms read the market. 

When competitors supplement this dynamic with non-market communications that facilitate, 

stabilize, or strengthen this natural market coordination, they cross the line into concerted 

action.6 For this reason, inter-firm communication on the subject ofthe alleged conspiracy is an 

important plus factor.7 

6 William H. Page, Communication and Concerted Action, 38 Loy. U. CHI. L.1. 405, 434, 446 (2007) (concerted 

action is distinguished from interdependence by the presence of a communication that conveys the intention to act to 

achieve a common goal and reliance on one's rivals to do the same). 

See Flat Glass, 385 F.3d at 361: 

15 


7 
• 

CCS ~~ 15-21. 

• 

CCS ~~ 32­

38. 

CCS ~~ 60-74. Cf In re DeltaiAirTran Baggage Fee 

Antitrust Litig., 2012-1 Trade Cas. (CCH) ~ 77,816 (N.D. Ga. 2010) ("[C]ollusive 

communications can be based on circumstantial evidence and can occur in speeches at industry 

conferences, announcements offuture prices, statements on earnings calls, and in other public 

ways."). 

See Flat Glass, 385 F.3d at 357, 363-64 & n.17. 

That evidence may involve "customary indications oftraditional conspiracy," or "proofthat the 

defendants got together and exchanged assurances of common action or otherwise adopted a 

common plan even though no meetings, conversations, or exchanged documents are shown." 

see also RelMax Int'l v. Realty One, Inc., 173 F.3d 995, 1009(6th Cir. 1999); In re EPDMAntitrust Litig., 681 F. 

Supp. 2d 141, 173-75 (D. Conn. 2009). 

16 
• 

CCS~41. 

• 

_ CCS ~~ 44-45. 


• 

42. 


This inference conforms with the 

reasoning in United States v. Container Corp., 393 U.S. 333 (1969). There, the defendant 

manufacturer of corrugated containers contacted a competitor and requested information 

c~mcerning the most recent price charged to a customer. The Court recognized "that when a 

defendant requested and received price information [from a competitor], it was affirming its 

willingness to furnish such information in return." Id. at 335. In the very same way, when a 

firm complains to its competitor about the latter's low price, the speaker is implicitly 

17 

communicating its willingness to adhere to higher prices in return. See also AREEDA & 

HOVENKAMP, VI ANTITRUST LAW , 1419a ("[W]hen a competitor merely complains to its rival 

about the latter's 'low price' ... the 'objective' meaning of such a statement to the reasonable 

observer seems clear: the only business rationale for complaining is to induce a higher price."). 

Consistent with this analysis, courts have viewed similar competitor complaints as 

evidence confirming the existence of, and the speaker's participation in, a price-fixing 

conspiracy. United States v. Beaver, 515 F.3d 730, 738 (7th Cir. 2008), was an appeal from a 

criminal conviction for conspiring to fix the price of concrete. Defendant attended meetings of 

competing concrete producers at which a plan to limit discounts was discussed, but no words of 

assent were voiced. Defendant argued that the government failed to show that a price-fixing 

conspiracy existed or that he participated in the cartel. The Seventh Circuit rejected this 

argument, finding that tacit assent to the plan was voiced when one conspirator "confronted 

others about cheating on the cartel." Id. 

In United States v. Giordano, 261 F.3d 1134 (l1th Cir. 2001), Defendant Weil appealed 

from his criminal price fixing conspiracy conviction for fixing scrap metal prices. Weil asserted 

that he attended meetings with his competitor in order to gather information about their prices, 

information that he intended to use unilaterally in order to set his own prices. The Eleventh 

Circuit sustained the price-fixing conviction, relying inter alia on testimony that Weil contacted 

his competitor "on at least one occasion to complain that [the competitor] was cheating" on the 

agreement. Id. at 1139. 

In re Scrap Metal Antitrust Litig., 2006 U.S. Dist. LEXIS 75873 (N.D. Ohio 2006), aff'd, 

527 F.3d 517 (6th Cir. 2008), was a civil case charging a conspiracy to fix the price ofscrap 

metal. Defendant Columbia sought to overturn a jury finding ofliability, asserting that there was 

18 

insufficient evidence ofthe alleged conspiracy. The court rejected this motion, citing evidence 

ofinter-company complaints when one scrap dealer bid on an account that "belonged" to a 

competitor. Id at *41. 

See Petroleum Prods., 906 F.2d at 454 n. 18 

(evidence ofdirect competitor contacts permits inference of other similar contacts). 

(d) Actions contrary to the actor's unilateral self-interest. "It is firmly established that 

actions that are contrary to an actor's economic interest constitute a plus factor that is sufficient 

to satisfy a price fixing plaintiff's burden in opposing a summary judgment motion." Williamson 

Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1310 (lIth Cir. 2003).8 

• 

_CCS~40. 


• 

CCS ~~ 49-50, 66­

8 Accord Merck-Medeo Managed Care, LLC v. Rite Aid Corp., 1992-2 Trade Cas. ~ 72,640 (4th Cir. 1999) 

("Evidence of acts contrary to an alleged conspirator's economic interest is perhaps the strongest plus factor 

indicative of a conspiracy."); Baby Food Antitrust Litig., 166 F.3d at 122; Hareros, 158 F.3d at 572; Petruzzi's, 998 

F.2d at 1243-45; Apex Oil Co. v. DiMauro, 822 F.2d 246, 254 (2d Cir. 1987). 

19 
74. 

In re High Pressure Laminates Antitrust Litig., 2006-1 Trade Cas. CCH ~ 75,298 (S.D.N.Y. 

2006) (defendant's sharing of confidential information with competitors was against its 

individual economic self-interest, and therefore probative of conspiracy). 

(e) Actions that facilitate price collusion. 

Toddv. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) 

(competitors' use of facilitating practice, is a plus factor that 

supports an inference ofa price-fixing agreement); Petroleum Prods., 906 F.2d at 461-62 (same). 

CCS ~~ 36-40. 

United States v. Andreas, 

216 F.3d 645, 652 (7th Cir. 2000). 

(f) Conspirator admissions. 

CCS ~ 86. 

CCS ~~ 86-90. These acknowledgments of conspiracy, explicit and 

implicit, are evidence ofthat deal or commitment. High Fructose Corn Syrup, 295 F.3d at 661­

62; Re/MaxInt'l, 173 F.3d at 1009-10. 

All this varied evidence "tends to exclude independent action," and so shifts to McWane 

the burden to prove that "drawing an inference ofunlawful behavior is unreasonable." 

20 
Petruzzi's, 998 F.2d at 1230. 

This is the third ofJudge Posner's "traps," 

and unavailing for two reasons. 

This precise issue was addressed in Beaver: 

[Defendant asserts that] the concrete producers' occasional cheating on the 

discount limit shows that no agreement was ever reached. But this argument is 

illogical; certainly [defendant] would agree that a breach ofcontract does not 

mean that the parties never entered into a contract in the first place. And the 

argument is also beside the point because § 1 ofthe Sherman Act does not outlaw 

only perfect conspiracies to restrain trade. It is not uncommon for members of a 

price-fixing conspiracy to cheat on one another occasionally, and evidence of 

cheating certainly does not, by itself, prevent the government from proving a 

conspiracy. 

Beaver, 515 F.3d at 739. AccordAndreas, 216 F.3d at 669,679 (cheating by cartel members did 

not disprove conspiracy claim); United States v. SKW Metals & Alloys, Inc., 195 F.3d 83 (2d Cir. 

1999) (same); High Fructose, 295 F.3d at 656 (same); Alexander v. Phoenix Bond & Indemnity 

Co., 149 F. Supp. 2d 989, 1008 (N.D. Ill. 2001) (same). 

In sum, 

tends to exclude the possibility of independent action, and therefore creates 

a genuine issue ofmaterial fact as to whether McWane and its rivals conspired to restrain price 

competition. McWane's motion for summary decision should be denied. 

II. McWane Invited Collusion 

21 

II United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940). 

Id. 

McWane argues, somewhat anachronistically, that the FTC Act does not reach a 

unilateral, unconsummated invitation to fix prices. Yet, in a series of consent orders the 

Commission has endorsed the proposition that an invitation to collude is "the quintessential 

example ofthe kind ofconduct that should be ... challenged as a violation of Section 5.,,9 This 

enforcement policy extends back twenty years.JO Legal authority for this doctrine is found in a 

line of Supreme Court decisions interpreting Section 5 as empowering the Commission to ban 

potentially anti competitive practices in their incipiency, even before the conduct develops into a 

"full-blown" violation ofthe Sherman Act. 1 1 

9 Statement ofChainnan Leibowitz, Commissioner Kovacic, and Commissioner Rosch, In the Mattero! V-Haul 


Int'!, Inc. andAMERCO, FTC File No. 081-0157 (June 9, 2010). 


10 See id (listing Commission cases). 


11 See Fed Trade Comm 'n v. Texaco, Inc., 393 U.S. 223, 225 (1968); Fed Trade Comm 'n v. Brown Shoe Co., 384 


U.S. 316, 321 (1966); Fed Trade Comm'n v. Motion Picture Adver. Servo Co., 344 U.S. 392, 394-95 (1953); Fed 

Trade Comm 'n V. Cement Inst., 333 U.S. 683, 708 (1948); Fashion Originators' Guild, Inc. v. Fed Trade Comm 'n, 

312 U.S. 457, 466 (1941). 

22 
The First Circuit recently concluded that an invitation to fix prices is an unfair method of 

competition under Massachusetts consumer protection law. Liu v. Amerco, 677 F.3d 489 (1st 

Cir.2012). The court relied upon FTC precedent, explaining that an unsuccessful attempt to fix 

prices is "pernicious conduct with a clear potential for harm and no redeeming value whatever." 

!d. slip op. at 9. The Commission's use of Section 5 to condemn invitations to collude has also 

been endorsed by leading antitrust scholars.12 

Mc Wane's Memorandum misrepresents the First Circuit's Liu decision, as well as United 

States v. American Airlines, 743 F.2d 1114 (5th Cir. 1984) (invitation to fix prices violates 

Sherman Act, Section 2 where the solicitor and the solicited competitor would together exercise 

monopoly power). 

McWane's next argument is 

. For purposes of summary decision, the relevant 

inquiry is whether Complaint Counsel's reading is reasonable. See Flat Glass, 385 F.3d at 357, 

363-64 & n.l7; High Fructose, 295 F.3d at 662. 

Several legal and economic justifications support the imposition ofliability upon firms that 

communicate an invitation to collude where acceptance cannot be proven. First, it may be 

difficult to determine whether a particular solicitation has or has not been accepted. Second, even 

an unaccepted solicitation may facilitate .coordinated interaction by disclosing the solicitor's 

intentions or preferences. Third, the anti-solicitation doctrine serves as a useful deterrent against 

conduct that is potentially harmful and that serves no legitimate business purpose. Analysis of 

Agreement Containing Consent Order To Aid Public Comment, In the Matter ofVal ass is 

Communications, Inc., File No. 051 OOOS, 

http://www.ftc.gov/os/caselist/051 000S/060314ana051 OOOS.pdf 

12 AREEDA & HOVENKAMP, supra note 4, 'If 1419; Stephen Calkins, Counterpoint: The Legal Foundation ofthe 

Commission's Use ofSection 5 to Challenge Invitations to Collude is Secure, ANTITRUST Spring 2000, at 69 ("As a 

matter simply ofthe English language, intercepting attempted price fixing would seem the quintessential example of 

restraining a practice that otherwise would ripen into a Sherman Act violation, and ofbarming a practice that 

conflicts with the Sherman Act's basic policies."). 

23 
(ii) 

demonstrates that it is reasonable to int,prn,rpt 

CCS ~~ 26-37,60-78. This evidence 

inviting its competitors to 

collude. 


Cases cited by McWane that address the legality ofa bare price announcement are 


irrelevant. 

are legally irrelevant and/or raise disputed issues to be resolved at trial. 

III. McWane Participated in an Illegal Conspiracy to Exchange Sales Information 

-

The exchange of information among competitors violates the antitrust laws where the 

likely effect is to facilitate supra-competitive pricing or other anticompetitive behavior. 

Gypsum; United States v. Citizens & Southern National Bank, 422 U.S. 86 (1975); Todd, 275 

F.3d at 198; Petroleum Prods. 906 F.2d at 448. McWane ignores this authority, and asserts that 

the exchange ofsales information is per se lawful, citing Williamson Oil, 346 F.3d 1287. This 

misreads Williamson. The Eleventh Circuit's opinion does not consider or rule on the legality of 

the information exchange conducted by the defendant cigarette manufacturers; the claim before 

the court was price fixing. 

Id at 1313. 

24 

The Eleventh Circuit's recognition that an information exchange that aggregates and 

distributes industry sales data among competitors may facilitate price collusion accords with 

oligopoly theory. 

Massimo 

Motta, Competition Policy, Theory and Practice at 151 (2004).13 

CCS ~ 83, see also CCS ~ 82. 

Cases cited by McWane that address unilateral efforts to gather information about rivals 

are irrelevant; an information exchange involves concerted action subject to Section 1 review. 

Container Corp., 393 u.S. at 337. 

This is a disputed and material fact 

appropriately reserved for trial. 

13 See also Petroleum Prods., 906 F.2d at 462 (exchange ofproduction and supply data can be used to police a cartel 

or to facilitate interdependent action); George A. Hay, Oligopoly, Shared Monopoly, andAntitrust Law, 67 

CORNELL 1. REv. 439, 454 (1982) ("[F]inns can use infonnation about sales volume, which would indicate an 

unusual increase in one finn's sales (presumably associated with secret discounts), to monitor adherence to 

consensus prices."). 

25 

IV. McWane Monopolized the Domestic Fittings Market 

The Complaint charges that McWane attempted to maintain, and did maintain, its 

monopoly in the domestic Fittings market through exclusive dealing practices 

This fact alone disproves neither 

monopolization (Count Six), nor attempted monopolization (Count 7). 

The offense ofmonopolization has two elements: "the possession ofmonopoly power in 

the relevant market and (2) willful acquisition or maintenance ofthat power as distinguished 

from growth or development as a consequence ofa superior product, business acumen, or 

historic accident." United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966); see also United 

States v. Microsoft Corp., 253 F.3d 34,50 (D.C. Cir. 2001). 

Market share ofthis magnitude is sufficient to support a finding ofmonopoly 

power. E.g., Spirit Airlines v. Northwest Airlines, 431 F.3d 917, 935-36 (6th Cir. 2005); 

Conwood Co. v. United States Tobacco Co., 290 F.3d 768, 783 n.2 (6th Cir. 2002); Image Tech. 

Servs. v. Eastman Kodak Co., 125 F.3d 1195, 1206 (9th Cir. 1997). 

CCS ~ 207. See Broadcom 

Corp. v. Qualcomm, Inc., 501 F.3d 297,307 (3d Cir. 2007) ("The existence of monopoly power 

may be proven through direct evidence ofsupracompetitive prices and restricted output."). 

26 

Exclusionary conduct is "'behavior that not only (1) tends to impair the opportunities ofrivals, 

but also (2) either does not further competition on the merits or does so in an unnecessarily 

restrictive way.'" Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585,605 n.32 

(1985) (quoting P. Areeda & D. Turner, Antitrust Law 78 (1978)). A plaintiff is not required to 

show that rivals were entirely excluded or extinguished by the monopolist's conduct. It is 

sufficient to show that the rivals' entry or growth was impeded through exclusive dealing, and 

that this significantly contributed to the maintenance of defendant's monopoly power. E.g., US. 

v. Dentsply Int'l, 399 F.3d 181, 191 (3d Cir. 2005) ("The test is not total foreclosure, but whether 

the challenged practices bar a substantial number of rivals or severely restrict the market's 

ambit."); Microsoft, 253 F.3d at 70 (Microsoft's actions "have a significant effect in preserving 

its monopoly; they help keep usage of [Netscape's] Navigator below the critical level necessary 

for Navigator or any other rival to pose a real threat to Microsoft's monopoly."); LePage's, Inc. 

v. 3M, 324 F.3d 141, 160-61 (3d Cir. 2003) (foreclosing rivals from "key large volume 

customers" that were essential to achieving efficiencies ofscale" was exclusionary). 

McWane miscites Omega Envt'l v.Gilbarco, Inc., 127 F.3d 1157, 1164 (9th Cir. 1997), 

for the proposition that evidence ofany new entry defeats a monopolization claim. In Gilbarco 

plaintiffs produced zero "credible evidence to support their contention that [defendant's] policy" 

actually deterred entry into this market." Id. Here, by contrast, 

_ CCS " 168-202. 


CCS " 176-194. 

27 

Id. 

CCS ~ 182. 

CCS ~ 196. 

CCS~~ 

138-207. 


V. McWane Excluded Sigma from the Domestic Fittings Market 

McWane and Sigma entered into an agreement 

The Complaint charges that this agreement unreasonably 

restrained competition (Count F our), and was at the heart ofa conspiracy to monopolize the 

28 

domestic DIPF market (Count Five). 

., _This argument relies upon a host of disputed issues ofmaterial fact. 

The legal standard for establishing that a firm is a potential competitor depends upon the 

nature and particulars ofthe claim. Compare Palmer v. BRG ojGeorgia, Inc., 498 U.S. 46 

(1990) (in market division case, that BRG provided bar review services in Georgia was sufficient 

to establish BRG as a potential competitor outside ofGeorgia) with In re B.A.T. Indus., Ltd., 104 

F .T.C. 852, 937 (1984) (in merger case, party's status as a potential competitor requires 

assessment of"financial and managerial capabilities, interests, and incentives"). For purposes of 

Resp. Mot. at 33. 

CCS 

~ 110 

_ CCS~119, 

Commission precedent identifies this as the "best evidence" of a firm's intent to 

enter a market. See B.A.T. Indus., 104 F .T.C. at 922 (subjective evidence that a firm intends to 

enter a market is among "the best evidence" on the likelihood ofthat firm's entry). Additionally, 

CCS ~ 121; see Engine 

29 

Specialties, Inc. v. Bombardier, Ltd, 605 F.2d 1, 10 (1st Cir. 1979) (the approval ofthe board of 

directors in connection with plans to entry was sufficient to establish that "Bombardier had the 

requisite intent and ability to enter the ... market"). 

CCS~132._ 

CCS~ 

118. 


Prior to the MDA, 

CCS ~~ 124-25. 

CCS ~ 125. 

CCS ~~ 123-125. 

30 

CONCLUSION 

For the reasons set forth above, Mc Wane's motion for summary decision should be 

denied on all Counts. 

June 22, 2012 By: sf Edward D. Hassi 

Edward D. Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael 1. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq. 

Monica M.CastiIlo, Esq. 

Counsel Supporting the Complaint 

Bureau ofCompetition 

Federal Trade Commission 

Washington, D.C. 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-3496 

Electronic mail: ehassi@ftc.gov 

31 

CERTIFICATE OF SERVICE 


I hereby certify that on June 22, 2012, I filed the foregoing document electronically using 

the FTC's E-Filing System, which will send notification of such filing to: 

Donald S. Clark 

Secretary 

Federal Trade Commission 

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

Washington, DC 20580 

I also certify that I delivered via electronic mail and hand delivery a copy ofthe 

foregoing document to: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

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

Washington, DC 20580 

I further certify that I delivered via electronic mail a copy ofthe foregoing document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

ioseph.ostoyich@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counselfor Respondent Mc Wane, Inc. 

32 
CERTIFICATE FOR ELECTRONIC FILING 

I certifY that the electronic copy sent to the Secretary ofthe Commission is a true and 

correct copy ofthe paper original and that I possess a paper original ofthe signed document that 

is available for review by the parties and the adjudicator. 

June 22, 2012 By: 	 sl Thomas H. Brock 

Attorney 

33 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

J. Thomas Rosch 

Edith Ramirez 

Julie Brill 

Maureen K. Ohlhausen 

) PUBLIC 

In the Matter of ) 

) 

McWANE,INC., ) DOCKET NO. 9351 

a corporation. ) 

) 

COMPLAINT COUNSEL'S CONCISE STATEMENT OF MATERIAL FACTS AS 

TO WlDCH THERE IS A GENUINE ISSUE FOR TRIAL 

Pursuant to Rule 3.24(a)(2) ofthe Commission's Rules ofPractice, 16 C.F.R. 3.24(a)(2), 

Complaint Counsel submits the following Counter Statement ofMaterial Facts as to which there 

Exists a Genuine Issue for Trial. Part I ofthis submission sets forth those material facts (with 

citations to supporting depositions and exhibits) as to which there is a genuine issue. Part II of 

this submission sets forth each statement ofmaterial fact to which Respondent asserts there is no 

genuine issue and Complaint Counsel's response to each statement, including cross-cites where 

applicable to the paragraph in the Counter Statement setting forth the contravening evidence. 

PART I: STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS 

A GENUINE ISSUE FOR TRIAL 

Background 

1. 	 Respondent Mc Wane, Inc. manufactures, markets and sells products for the waterworks 

industry, including ductile iron pipe fittings ("Fittings"). McWane Answer ~ 8. 

1 
2. 	 Fittings are a component of the pipeline systems that are used to transport drinking and 

waste water in municipal distribution systems. Fittings are used to join pipes, valves, and 

hydrants, and to change or direct the flow of water. McWane Answer,-r 16. 

3. 

4. 

5. 	 Some waterworks projects are required by law to utilize Fittings that are manufactured in 

the United States. See. e.g. The Pennsylvania Steel Products Procurement Act, 73 Pa. 

Stat. §§ 1881-1887. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

2 

14. 

15. 

16. 

17. 

18. 

19. 

20. 

21. 

3 
22. 

23. 

24. 

25. 

2008: McWane Develops and Implements a Plan 

26. 

a. 

b. 

c. 

d. 

27. 

a. 

b. 

4 

c. 

d. 

28. 

29. 

30. 

a. 

b. 

c. 

d. 

e. 

f. 

g. 

31. 

5 

32. 


a. 

b. 

c. 

33. 


d. 

6 

34. 


i 

-I 

! 

i 

35. 

a. 

h. 

c. 

36. 

a. 

h. 

c. 

d. 

7 

37. 

38. 

39. 

40. 
41. 

Cheating and Complaints 

42. 

a. 

h. 

c. 

d. 
43. -


McWane Communicates That It Is The Low Cost Provider 

44. 

45. 

10 

DIFRA and the Second Price Increase of 2008 

46. 

47. 

48. 

49. 

50. 

51. 

11 

52. 

53. 

54. 

55. 

56. 

57. 

58. 

59. 

12 

60. 

61. 

62. 

63. -


64. 

65. 

13 

66. 


67. 

68. 

69. 

70. 

71. 

72. 

73. 

74. 

75. 

76. 

77. 

78. 

79. 

80. 

81. 

15 

82. 

83. 

84. 

The Market Decline Leads to Cheating 

85. 

16 

86. 

87. 

88. 

89. 

90. 

91. 

92. 

93. 

17 

94. -


95. 

96. 

18 

97. 

98. 

The ARRA Had A Dramatic Effect on the Domestic Market 

99. 

100. 

101. 

102. 

103. 

104. 

105. 

19 

SIGMA's Domestic Entry 

106. 

107. 

108. 

109. 

110. 

111. 

112. 

113. 

20 

114. 

115. 

116. 

117. 

118. 

119. 

120. 

121. 

122. 

123. 
124. 

I 

.1 

125. 

126. 

127. 

128. 

129. 

22 

130. 


131. 

132. 

133. 

134. 

135. 

a. 

h. 

23 
c. 

d. 

e. 

f. 

g. 

136. 

137. 
138. 

139. 

140. 

141. 

25 

142. 

143. 

144. 

145. 

146. 

147. 

148. 

149. 

150. 

151. 

26 

152. 

153. 

154. 

155. 

156. 

157. 

158. 

159. 

160. 
161. 

162. 

163. 

164. 

165. 

166. 

167. 

The Impact of McWane's Exclusivity Policy 

168. 

28 

169. 

170. 

171. 

172. 

173. 

174. 

175. 

29 

176. 

177. 

178. 

179. 

180. 

181. 

182. 

183. 

184. 
185. 

186. 

187. 

188. 

189. 

190. 

191. 

192. 

193. 
194. 

195. 

196. 

197. 

198. 

199. 

32 

200. 

201. 

202. 

203. 

204. 

205. 

206. 

207. 

33 

34 

PART II: COMPLAINT COUNSEL'S RESPONSE TO 


RESPONDENT'S STATEMENT OF UNDISPUTED FACTS 


Pursuant to Rule 3.24, Complaint Counsel respond to each ofthe assertions as to which 

Respondent Mc Wane contends there is no material dispute, and in so doing demonstrates that 

there are numerous material factual issues as to which there is a genuine issue for trial. 

General Objections 

1. 	 Complaint Counsel object to Respondent's Statement ofMaterial Facts As To Which 

There Is No Genuine Dispute ("Material Facts") on the grounds that McWane regularly 

characterizes as "undisputed" the fact that a witness (or group ofwitnesses) gave certain 

deposition testimony. E.g., SOF ~~ 20-36 (McWane witnesses); 38-46, 50, 52, 57, 59-62 

(Sigma and Star witness). Generally, we do not dispute that the witness' testimony is 

accurately excerpted, but the issue for the purposes of Respondent's motion is whether 

the underlying factual issue itself is undisputed, not whether or not a particular witness 

offered particular testimony, which in and ofitself is not dispositive ofthe issue. 

2. 	 Respondent's Material Facts are particularly defective as they quote testimony from 

witnesses whose recall ofthe events that occurred four to five years ago was selective, at 

best. For example, Complaint Counsel do not dispute that 

But that testimony should be considered in light of 

failure to remember many ofthe significant events relating to McWane's 

pricing decisions. 

35 

L 

3. 	 Complaint Counsel reserve the right to introduce evidence and testimony at trial to 

controvert each fact set forth in Respondent's Statement ofUndisputed Facts even ifwe 

do not contest that fact for the purposes of our opposition to Respondent's motion. 

****** 

Respondent McWane's statements are reprinted herein in italics. Complaint Counsel's 

replies follow. 

Allegations 

1. Counts 1 and 2 ofthe Administrative Complaint (HAC'') allege that McWane 

Hconspired" with Sigma and Star, in violation ofFTC Act Section 5, H[bjeginning in January 

2008" and ending in February 2009 - - when Congress passed Buy-America legislation. (AC ,-r,-r 

2, 3; see also (January 4,2012 Statement by Federal Trade Commission, 

http://wwwjtc.gov/opal2012/01/mcwane.shtm.) (Hdisbanded in early 2009'').) 

Response to No.1: Disputed. Complaint Counsel refer to the specific allegations in the 

Administrative Complaint and to the extent Respondent's wording differs, this fact is disputed. 

The Administrative Complaint does not allege that McWane's conspiracy with Sigma and Star 

ended in February 2009. Complaint Counsel refer to Complaint Counsel's Motion for Partial 

Summary Judgment dated June 1,2012, and the evidence cited in Complaint Counsel's Motion, 

which clearly set forth the evidence supporting the allegation that McWane conspired with 

Sigma and Star after February 2009. 

2. The three companies allegedly agreed to issue price increases in January and 

June 2008 and to limit their discounting. (AC,-r,-r 32-34.) 

36 

Response to No.2: Disputed as incomplete. Complaint Counsel refer to the specific 

allegations in the Administrative Complaint and to the extent Respondent's wording differs, this 

fact is disputed. 

3. The AC also alleges that the companies' participation in the Ductile Iron Fittings 

Research Association ("DIFRA ''), a trade association, "facilitated price coordination" for the 

six month period after June 2008. (AC,-r 36 ("between June 2{)08 and January 2009 '').) The AC 

alleges that McWane, Sigma, and Star each provided a third-party accountingfirm with a 

monthly report ofits tons-shipped data, which the firm then aggregated, and distributed the 

overall totals back to them. (AC,-r 35.) 

Response to No.3: Disputed. The Administrative Complaint does not allege that 

DIFRA facilitated price coordination for a "six month period." Complaint Counsel refer to the 

specific allegations in the Administrative Complaint and to the extent Respondent's wording 

differs, this fact is disputed. 

4. The AC alleges that the combined, aggregated tons-shipped data allowed the 

DIFRA members to "indirectly" monitor their "output levels. " (AC,-r 36.) Count 3 alleges that 

McWane "invited" Star and Sigma to collude, in violation ofSection 5, by some or all ofthe 

same conduct. (AC,-r 66.) 

Response to No.4: Disputed. The Administrative Complaint does not allege that the 

DIFRA information exchange allowed DIFRA member to "'indirectly' monitor their 'output 

levels.'" Complaint Counsel refer to the specific allegations in the Administrative Complaint 

and to the extent Respondent's wording differs, this fact is disputed. 

5. Counts 4 through 7 ofthe Administrative Complaint ("A C '') allege that Mc Wane 

monopolized or attempted to monopolize the market for domestic ductile iron pipe fittings 

("DIPF',),l in violation ofSection 5 ofthe FTC Act. (AC,-r,-r 67-70.) 

Footnote 1: McWane challenges Complaint Counsel's allegation that a "domestic" 

market exists for ductile iron waterworks fittings. It is undisputed that imported fittings compete 

with domestic fittings. 

Response to No.5: Disputed. Complaint Counsel refer to the specific allegations in the 

Administrative Complaint and to the extent Respondent's wording differs, this fact is disputed. 

37 

6. Counts 4 and 5 allege that McWane and Sigma entered a Master Distributorship 

Agreement (HMDA '') in September 2009 with the specific intent to monopolize the market for 

domestic DIP F. (Id. ~~ 67-68.) 

Response to No.6: Disputed as incomplete. Complaint Counsel refer to the specific 

allegations in the Administrative Complaint and to the extent Respondent's wording differs, this 

fact is disputed. 

7. Complaint Counsel alleges that Sigma took steps to evaluate entry into domestic 

production ofjittings, and McWane sought to eliminate that risk by inducing Sigma to become a 

distributor ofMcWane 'sjittings rather than a competitor. (Id ~~ 47-55.) 

Response to No.7: Disputed as incomplete. Complaint Counsel refer to the specific 

allegations in the Administrative Complaint and to the extent Respondent's wording differs, this 

fact is disputed. 

8. Counts 6 and 7 allege that McWane willfully engaged in anticompetitive and 

exclusionary acts andpractices to acquire, enhance or maintain its monopoly power, and, at a 

minimum resulted in a dangerous probability ofmonopolizing the alleged market for domestic 

ductile ironjittings. (Id ~~ 69-70.) 

Response to No.8: Disputed as incomplete. Complaint Counsel refer to the specific 

allegations in the Administrative Complaint and to the extent Respondent's wording differs, this 

fact is disputed. 

9. Complaint Counsel alleges that McWane excluded Star by adopting exclusive 

dealing policies with the intention that these policies would impede and delay the ability ofStar 

to enter the domestic DIPF market. (Id ~~ 56-57.) 

Response to No.9: Disputed as incomplete. Complaint Counsel refer to the specific 

allegations in the Administrative Complaint and to the extent Respondent's wording differs, this 

fact is disputed. 

38 

10. Complaint Counsel further alleges that the effect ofthese policies has been to 

compel the majority ofwaterworks distributors to deal with Mc Wane and Sigma on an exclusive 

basisfor their domestic DIPF business, andforeclose Star from a substantial volume ofsales 

opportunities with waterworks distributors. (Id ~ 58-59.) 

Response to No. 10: Disputed as incomplete. Complaint Counsel refer to the specific 

allegations in the Administrative Complaint and to the extent Respondent's wording differs, this 

fact is disputed. 

IL Background 

A. Background ofFittings Market. 

11. Mc Wane produces more than 4,000 individual ductile iron pipe fittings in a range 

ofdiameters (from 3" to 48" or larger), configurations (e.g., elbows, tees, and sleeves),joints 

(flanged, mechanical, push-on), coatings (e.g., tar, epoxy, cement-lined, glass-lined), and 

finishes at its last remainingfoundry in the Us., the Union F and in its in China 

(which makes the same 4,000-plusfittings at lower costs). 

see also http://www.tylerunion.com/ 

Footnote 2: McWane 's ductile iron fittings business is known as TylerUnion after its 

now-closed Tyler, Texas foundry and its Union Foundry in Anniston, Alabama. TylerUnion is a 

division ofMcWane under the Valve and Hydrant Group. 

Response to No. 11: Disputed. 

This fact is disputed. 

12. Mc Wane's competitors in the market for ductile iron pipe fittings include a 

number ofimporters (including Sigma, Star, MetalFit, Serampore, NAPAC, and ElectroSteel) 

who source fittings from third-party foundries in Korea, China, India, Mexico, and Brazil, and a 

number ofdomestic foundries (including Us. Pipe, Griffin Pipe, American Cast Iron Pipe 

Company (HACIPCO',), and Backman Foundry), although several ofthe domestic foundries 

such as us. ACIPCO and have or cut back 

39 

Response to No. 12: Disputed as misleading and inconsistent. 

This fact is disputed. 

13. The prices customers pay for Mc Wane's fittings depend upon multiple factors. 

McWane issues a list which is nationwide and has 

Response to No. 13: Not disputed. 

Response to No. 14: Not disputed. 

are 


foreign or "blended" fittings. 


40 

genuine issue ofmaterial fact as to 

to open source 

Response to No. 15: Not disputed. 

Response to No. 16: Not disputed. 

Response to No. 17: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. This statement is contradicted by the specific facts set forth and 

evidence cited in Complaint Counsel's Statement ofMaterial Facts As To Which There Is A 

Genuine Issue For Trial ("CCS")" 30-34. The evidence cited in CCS ,,30-34 raises a 

Response to No. 18: Not disputed. 

19. Finally, Mc Wane at times provided additional price concessions in the 

reductions infreight, or extensions ofcredit or payment terms. 

41 
· 

. 

I 

Response to No. 19: Not disputed . 

1 

I 

IlL McWane Witnesses Testified They Priced Independently. 

Response to No. 20: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that McWane witnesses testified they made their 

pricing decisions independently, however, the issue addressed by this statement is contradicted 

by the specific facts set forth and evidence cited in CCS ~~ 26-98 as well as Complaint Counsel's 

Motion For Partial Summary Decision dated June 1,2012. The evidence cited in CCS ~~ 26-98, 

and the evidence cited in Complaint Counsel's Motion raises a genuine issue of material fact as 

to whether or not Mc Wane made its pricing decisions independently. 

Therefore, Complaint Counsel contend there is a genuine 

issue ofmaterial fact for trial. 

Response to No. 21: Not disputed. 

42 

Response to No. 22: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98 as well as Complaint Counsel's Motion For Partial 

Summary Decision dated June 1,2012. The evidence cited in CCS ~~ 26-98, and the evidence 

cited in Complaint Counsel's Motion raises a genuine issue ofmaterial fact as to whether or not 

McWane made its pricing decisions independently. 

_ Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for 

trial. 

Response to No. 23: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 46-98. The evidence cited in CCS ~~ 46-98 raises a 

43 
genuine issue ofmaterial fact as to whether or not DIFRA data had an effect on McWane's 

pricing. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

'! 

Response to No. 24: Disputed in Part. Complaint Counsel do not dispute that McWane 

witnesses testified that pricing decisions were based on a wide range offactors. Subject to the 

General Objections set forth above, Complaint Counsel do not dispute that the Respondent 

quoted the excerpt ofthe witnesses' testimony accurately. The issue addressed by this statement 

is contradicted by the specific facts set forth and evidence cited in CCS " 26-98 as well as 

Complaint Counsel's Motion For Partial Summary Decision dated June 1,2012. The evidence 

cited in CCS" 26-98, and the evidence cited in Complaint Counsel's Motion raises a genuine 

issue ofmaterial fact as to whether or not Mc Wane independently made its pricing decisions. 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 25: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS" 26-98 as well as Complaint Counsel's Motion For Partial 

Summary Decision dated June 1,2012. The evidence cited in CCS" 26-98, and the evidence 

cited in Complaint Counsel's Motionraises a genuine issue ofmaterial fact as to whether or not 

44 

McWane managed its pricing independently. Therefore, Complaint Counsel contend there is a 

genuine issue ofmaterial fact for trial. 

Response to No. 26: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98 as well as Complaint Counsel's Motion For Partial 

Summary Decision dated June 1,2012. The evidence cited in CCS ~~ 26-98, and the evidence 

cited in Complaint Counsel's Motion raises a genuine issue ofmaterial fact as to whether or not 

McWane made its pricing decisions independently. Therefore, Complaint Counsel contend there 

is a genuine issue ofmaterial fact for trial. 

Response to No. 27: Disputed in Part. Subject to the General Objections set forth 

above, the issue addressed by this statement is contradicted by the specific facts set forth and 

evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a genuine issue of 

material fact as to whether or not McWane set its multipliers on multiple factors, including 

colluding with Sigma and Star. Therefore, Complaint Counsel contend there is a genuine issue 

ofmaterial fact for trial. CCS ~~ 26-98. This fact is disputed. 

45 

Response to No. 28: Disputed. Complaint Counsel do not dispute that McWane's 

multipliers varied region-by-region and often state-by-state. Subject to the General Objections 

set forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ,-r,-r 26-98. The evidence cited in CCS ,-r,-r 26-98 

raises a genuine issue ofmaterial fact as to whether or not Mc Wane in 

collusion with Sigma and Star rather than due to competitive conditions. Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. CCS,-r,-r 26-98. This fact is 

disputed. 

Response to No. 29: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. 

The 

issue addressed by this statement is contradicted by the specific facts set forth and evidence cited 

in CCS,-r,-r 26-98 as well as Complaint Counsel's Motion For Partial Summary Decision dated 

46 

June 1,2012. The evidence cited in CCS ~~ 26-98, and the evidence cited in Complaint 

Counsel's Motion raises a genuine issue ofmaterial fact as to whether or not McWane made its 

pricing decisions independently. Therefore, Complaint Counsel contend there is a genuine issue 

ofmaterial fact for trial. 

Response to No. 30: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not McWane made decisions to_ 

independently. Therefore, Complaint Counsel contend there is a 

genuine issue ofmaterial fact for trial. 

47 

Response to No. 31: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a 

genuine issue ofmaterial fact as to 

_ Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for 

trial. 

32. McWane grantedjob prices/or a range o/reasons, . 

determined it 

Response to No. 32: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98. The'evidence cited in CCS ~~ 26-98 raises a ! 

genuine issue ofmaterial fact as to whether or not Mc W in coordination 

with its competitors. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

48 

Response to No. 33: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not Mc W in 

coordination with its competitors. Therefore, Complaint Counsel contend there is a genuine 

issue ofmaterial fact for trial. 

Response to No. 34: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a 

genuine issue ofmaterial fact as to whether or not Mc Wane in coordination 

with its competitors. Therefore, Complaint Counsel contend there is a genuine issue of material 

fact for trial. 

49 

Response to No. 35: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. Complaint Counsel do not dispute that McWane offered 

discounts from time to time. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not Mc Wane in 

coordination with its competitors. Therefore, Complaint Counsel contend there is a genuine 

issue ofmaterial fact for trial. 

Response to No. 36: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. Complaint Counsel do not dispute that McWane offered price concessions 

in the form of freight costs or extended terms from time to time. The issue addressed by this 

statement is contradicted by the specific facts set forth and evidence cited in CCS ~~ 26-98. The 

evidence cited in CCS ~~ 26-98 raises a genuine issue ofmaterial fact as to whether or not 

McWane limited price concessions in coordination with its competitors. Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. 

50 

Response to No. 37: Disputed. Subject to the General Objections set forth above, 

Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witnesses' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS, 84. The evidence cited in CCS, 84 raises a genuine issue 

ofmaterial fact as 

Therefore, Complaint Counsel contend there is a genuine issue 

ofmaterial fact for trial. 

IV. Sigma and Star Testified They Did Not Discuss Prices With McWane. 

Response to No. 38: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS" 26-98 as well as Complaint Counsel's 

Motion For Partial Summary Decision. 

The evidence cited in CCS ,,26-98, and the 

evidence cited in Complaint Counsel's Motion raises a genuine issue ofmaterial fact as to 

whether or not Star and Sigma coordinated pricing with McWane. Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. 

51 

Response to No. 39: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98 as well as by Complaint Counsel's Motion For 

Partial Summary Decision dated June 1,2012. 

The evidence cited in CCS ~~ 26-98, and 

the evidence cited in Complaint Counsel's Motion raises a genuine issue ofmaterial fact as to 

whether or not Star and Sigma coordinated pricing with McWane. Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. 

52 

Response to No. 40: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98 as well as Complaint Counsel's Motion For Partial 

Summary Decision dated June 1,2012. The evidence cited in CCS ~~ 26-98, and the evidence 

cited in Complaint Counsel's Motion raises a genuine issue ofmaterial fact as to whether or not 

Star and Sigma coordinated pricing with McWane. Therefore, Complaint Counsel contend there 

is a genuine issue ofmaterial fact for trial. 

53 

Response to No. 41: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS,-r,-r 26-98 as well as Complaint Counsel's Motion For Partial 

Summary Decision dated June 1,2012. 

The evidence cited in CCS ',-r,-r 26-98, and the evidence cited in 

Complaint Counsel's Motion raises a genuine issue ofmaterial fact as to whether or not Star and 

Sigma coordinated pricing with McWane. Therefore, Complaint Counsel contend there is a 

genuine issue ofmaterial fact for trial. 

Response to No. 42: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ,-r,-r 26-98. The evidence cited in CCS ,-r,-r 26-98 raises a 

genuine issue ofmaterial fact as to Star coordinated pricing with McWane and Sigma. 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

54 

See Star P Ltd. 's Answer 

any price agreements with McWane in its Ans1Ver to the AC_ 

Response to No. 43: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted Star's answer to the 

Administrative Complaint and February 13,2012 hearing transcript accurately. The issue 

addressed by this statement is contradicted by the specific facts set forth and evidence cited in 

CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a genuine issue ofmaterial fact as to 

whether or not Star coordinated pricing with McWane and Sigma. Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 44: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

55 
testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a 

genuine issue ofmaterial fact as to whether or not Sigma coordinated pricing with McWane and 

Sigma. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 45: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. But 

II. The issue addressed by this statement is contradicted by the specific facts set forth and 

evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a genuine issue of 

material fact as to whether or not Sigma coordinated pricing with McWane and Sigma. 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

56 

Response to No. 46: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a 

genuine issue of material fact as to whether or not Sigma coordinated pricing with McWane and 

Star. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 47: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

document accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a 

genuine issue ofmaterial fact as to whether or not McWane and Sigma coordinated pricing with 

each other. Therefore, Complaint Counsel contend there is a genuine issue of material fact for 

trial. 

Response to No. 48: Disputed and misleading. Complaint Counsel did not "concede" 

In Complaint Counsel's 

Objections and Responses to Respondent McWane's First Set or Requests for Admissions, 

57 

which responded to Requests for Admissions that were served on Complaint Counsel on the first 

day of discovery, we limited our response on the grounds that discovery and investigation in this 

matter were continuing (RF A Responses at 3); we objected to the specific request addressing this 

topic for using vague and ambiguous terms (Id. at 14); and we stated that "Complaint Counsel, 

after reasonable inquiry, lacks sufficient information to admit or deny this Request" (Id.) The 

evidence cited in CCS ~~ 26-98 raises a genuine issue ofmaterial fact as to whether or not 

McWane coordinated pricing with Sigma and Star. Therefore, Complaint Counsel contend there 

is a genuine issue ofmaterial fact for trial. 

Response to No. 49: Disputed in part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98 

The evidence cited in CCS ~~ 26-98 and in 

the testimony cited herein raises a genuine issue ofmaterial fact as to whether or not McWane 

58 

coordinated pricing with Sigma and Star. Therefore, Complaint Counsel contend there is a 

genuine issue ofmaterial fact for trial. 

A. Star and Sigma Independently Decided To Follow McWane's Multipliers. 

Response to No. 50: Disputed as misleading. Subject to the General Objections set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not Star coordinated pricing with 

McWane and Star. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

Response to No. 51: Disputed as misleading. Subject to the General Objections set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

59 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or 

Therefore, Complaint Counsel contend there is a genuine issue of 

material fact for trial. 

Response to No. 52: Disputed as misleading. Subject to the General Objections set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not Star coordinated pricing with 

McWane and Star. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

1. 	 Star and Sigma Each Decided To Follow McWane's January 2008 

Multiplier 

53. The Administrative Complaint concedes that McWane issued a multiplier change 

on January 11,2008 because its raw materials prices were increasing dramatically and demand 

was very low following the crash ofthe housing market. 30 to . all 

Response to No. 53: Disputed in part. Complaint Counsel do not dispute that certain 

costs were rising in 2008 but it the issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

60 

raises a genuine issue of material fact as to why McWane raised prices in January 2008_ 

Therefore, Complaint Counsel contend there 

is a genuine issue ofmaterial fact for trial. Moreover, Complaint Counsel refer to the specific 

wording inJhe Administrative Complaint and to the extent Respondent's wording differs, this 

fact is disputed. 

Response to No. 54: Disputed. 

Response to No. 55: Disputed as misleading. Complaint Counsel do not dispute that 

the Respondent quoted the excerpt ofthe witness' testimony accurately 

61 

Response to No. 56: Disputed in part. Complaint Counsel do not dispute that Star and 

Sigma were facing cost increases in January 2008, but the issue addressed by this statement is 

contradicted by the specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence 

cited in CCS ~~ 26-98 raises a genuine issue of material fact as to whether or not Star and Sigma 

Therefore, Complaint Counsel contend 

there is a genuine issue of material fact for trial. 

62 

Response to No. 57: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not Sigma and Star coordinated price with 

McWane. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for 

trial. 

Response to No. 58: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not Sigma and Star coordinated price with 

McWane. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for 

trial. 

63 

Response to No. 59: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. 

The evidence cited in CCS ~~ 26­

98 raises a genuine issue ofmaterial 

Therefore, Complaint Counsel contend there is a genuine issue 

ofmaterial fact for trial. 

Response to No. 60: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradict.ed by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial 

Therefore, Complaint Counsel contend there is a genuine issue of 

material fact for trial. 

64 

Response to No. 61: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ,-r,-r 26-98. The evidence cited in CCS ,-r,-r 26-98 raises a 

genuine issue ofmaterial fact as to whether or not 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

Response to No. 62: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ,-r,-r 26-98. The evidence cited in CCS ,-r,-r 26-98 raises a 

genuine issue ofmaterial fact as to whether 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

2. McWane Charted Its Own Course In June 2008 

-

65 

Response to No. 63: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

raises a genuine issue ofmaterial fact as to whether or not 

Therefore, Complaint Counsel contend there is a 

genuine issue ofmaterial fact for trial. 

Response to No. 64: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 

66 
raises a genuine issue ofmaterial fact as to whether 

. Therefore, Complaint Counsel contend there is a genuine issue of 

material fact for trial. 

Response to No. 65: Disputed. Complaint Counsel is not aware of a June 7, 2008 

McWane multiplier increase. 

The 

evidence cited in CCS ~~ 46-77 raises a genuine issue ofmaterial fact as to whether or not the 

Therefore, Complaint Counsel 

contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 66: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 26-98. The evidence cited in CCS ~~ 26-98 raises a 

67 

. 

genuine issue ofmaterial fact as to whether or not Star coordinated pricing with Mc Wane and 

Sigma. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

I 

I Response to No. 67: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 46-77. The evidence cited in CCS ~~ 46-77 

raises a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel 

contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 68: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 46-77. The evidence cited in CCS ~~ 46-77 raises a 

genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend 

there is a genuine issue ofmaterial fact for trial. 

68 

, 

'I 


! 


! 

,I 

I 

Response to No. 69: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 46-77. The evidence cited in CCS ~~ 46-77 

raises a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 70: Disputed as misleading. The Administrative Complaint does not 

Complaint Counsel refer to the specific allegations in the Administrative Complaint and to the 

extent Respondent's wording differs, this fact is disputed. Complaint Counsel further dispute the 

use ofthe testimony cited. 

69 

-


Response to No. 71: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 46-77. The evidence cited in CCS ~~ 46-77 

raises a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel 

contend there is a genuine issue ofmaterial fact for trial. 

3. Star and Sigma Continued Job Pricing Throughout 2008 

Response to No. 72: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~ 30. The evidence cited in CCS ~ 30 raises a 

genuine issue of material fact as to 

70 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

Response to No. 73: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~ 30. The evidence cited in CCS ~ 30 raises a 

genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

Response to No. 74: Disputed as misleading. Subject to the General Objections set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~ 30. The evidence cited in CCS ~ 30 raises a 

genuine issue of material fact as to 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

71 

Response to No. 75: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~ 30. The evidence cited in CCS ~ 30 raises a 

genuine issue ofmaterial fact as to 

. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

Response to No. 76: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~ 30. The evidence cited in CCS ~ 30 raises a 

genuine issue ofmaterial fact as 

. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

72 

Response to No. 77: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ,,46-84. The evidence cited in CCS ,,46-84 

raises a genuine issue ofmaterial fact as to lXTh,,,.-r-h,3r 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 78: Disputed. Star's President Dan McCutcheon testified that Star's 

Therefore, 

Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 79: Disputed. Star's President Dan McCutcheon testifie~ 

Therefore, 

Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

73 

Response to No. 80: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel submits that the testimony q 

Respondent mistakenly references 

The issue addressed by this 

statement is contradicted by the specific facts set forth and evidence cited in CCS ~ 30. The 

evidence cited in CCS ~ 30 raises a genuine issue of material fact as to 

Therefore, Complaint Counsel contend 

there is a genuine issue ofmaterial fact for trial. 

74 

Response to No. 81: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~ 30. The evidence cited in CCS ~ 30 raises a 

genuine issue ofmaterial fact as to 

. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

Response to No. 82: Disputed as misleading. Subject to the General Objections set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~ 30. The evidence cited in CCS ~ 30 raises a 

genuine issue of material fact as to 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

75 

Response to No. 83: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS, 30. The evidence cited in CCS, 30 raises a 

genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

V. The Aggregated Tons-Shipped Data Did Not "Facilitate" Price Coordination. 

Response to No. 84: Disputed in Part. Complaint Counsel do not dispute that 

. Subject to the General 

Objections set forth above, Complaint Counsel do not dispute that the Respondent quoted the 

excerpt ofthe witnesses' testimony accurately. The issue addressed by this statement is 

contradicted by the specific facts 'set forth and evidence cited in CCS ,,46-84. The evidence 

cited in CCS " 46-84 raises a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend there 

is a genuine issue ofmaterial fact for trial. 

76 
Response to No. 85: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt of the 

witnesses' testimony accurately. 

See also CCS ~~ 47-48,57-65 

Therefore, Complaint Counsel contend there is a genuine issue of material 

fact for trial. 

77 

Response to No. 86: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. 

See e.g. 

CCS ~~ 71, 73. 

_ Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for 

trial. 

Response to No. 87: Disputed in part as vague. Complaint Counsel do not dispute that 

(CCS~68)._ 

(CCS ~ 73). 

(CCS ~ 75). This fact is disputed in part. 

Response to No. 88: Disputed in part as vague and misleading. 

See, e.g. CX 1479. The -

78 
CCS ~~ 46-84. This fact is disputed in part. 

Response to No. 89: Disputed in part. The terms "varying" and "many" are vague and 

ambiguous. Complaint Counsel do not dispute 

Response to No. 90: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 46-84. The evidence cited in CCS ~~ 46-84 

Therefore, Complaint Counsel contend there is a genuine issue of 

material fact for trial. 

79 

Response to No. 91: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 46-84. The evidence cited in CCS ~~ 46-84 

raises a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel 

contend there is a genuine issue of material fact for trial. 

Response to No. 92: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 46-84. The evidence cited in CCS ~~ 46-84 raises a 

genuine issue ofmaterial fact as to 

. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

80 
Response to No. 93: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 46-84. The evidence cited in CCS ~~ 46-84 raises a 

genuine issue ofmaterial fact as to 

. Therefore, Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

Response to No. 94: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 46-84. The evidence cited in CCS ~~ 46-84 raises a 

genuine issue ofmaterial fact as 

Therefore: Complaint Counsel contend there is a genuine issue ofmaterial 

fact for trial. 

81 

Response to No. 95: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

testimony accurately. The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~ 46-84. The evidence cited in CCS ~~ 46-84 raises a 

genuine issue ofmaterial fact as to 

. Therefore, Complaint Counsel 

contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 96: Disputed as misleading. Subject to the General Objections set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 46-84. The evidence cited in CCS ~~ 46-84 

raises a genuine issue ofmaterial fact as 

Therefore, 

Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

II 

82 

97. In June 2009, Star announced that it would begin selling a full range ofsmall, 

medium and large diameter fittings made for Star by outside foundries in the United States. (See 

Star's Price List, available online at http://-www.starpipeproducts.com/utilities.asp.) 

Response to No. 97: Not dispnted. 

Response to No. 98: Not disputed. 

Response to No. 99: Not disputed. 

Response to No. 100: Not disputed. 

Response to No. 101: Disputed as misleading. 

ccs ~~ 168­

169. 

83 

CCS ~~ 176 -194. 

CCS ~~ ~161-165, 

~~ 168 -194 and ~~ 204-205. Based on these facts, there is a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact 

for trial. 

Response to No. 102: Not disputed. 

Response to No. 103: Disputed as misleading. 

CCS ~198._ 

84 

CCS ~ 198. The evidence cited in CCS ~~ 175-203 raises a 

genuine issue ofmaterial fact as to 

. Therefore, Complaint Counsel contend there is a genuine 

issue ofmaterial fact for trial 

Response to No. 104: Disputed as misleading. 

Therefore, Complaint 

Counsel contend there is a genuine issue of material fact for trial. 

Response to No. 105: Disputed as misleading. As set forth in CCS ~~ 185-196,. 

85 

CCS ~~ 195-196. 

Response to No. 106: Disputed as misleading. 

CCS ~~ 184-186. Therefore, Complaint 

Counsel contend there is a genuine issue of material fact for trial. 

Response to No. 107: Disputed in part as misleading. Complaint Counsel admit that in 

2011 

Therefore, Complaint Counsel contend there is a genuine issue of 

material fact for trial. 

86 

Response to No. 108: Disputed in part as misleading. Complaint Counsel disputes this 

statement as misleading. 

CCS ~~ 168-169. 

(CCS ~~ 176 - 194). 

(CCS ~~ ~161-165, ~~ 168 -194 and ~~ 204-205). Based on this evidence 

there is a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend 

there is a genuine issue ofmaterial fact for trial. 

Response to No. 109: Disputed in part as misleading. Complaint Counsel disputes this 

statement as misleading. 

87 

(CCS ",161-165, " 168 -194, "204-205). Based on this evidence there is 

a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend 

there is a genuine issue ofmaterial fact for trial. 

Response to No. 110: Not disputed. 

88 

Response to No. 111: Disputed in part as misleading. 

(CCS ,-r,-r ,-r161-165, ,-r,-r 168 -194 and ,-r,-r 204-205). Based on 

this evidence there is a genuine issue ofmaterial fact as 

. Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 112: Disputed in part as misleading. 

Response to No. 113: Disputed in Part. Subject to the General Objections set forth 

above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witness' 

89 

testimony accurately . 

• (CCS ~~ 175-203). Based on this evidence there is a genuine issue ofmaterial fact as to 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact 

for trial. 

Response to No. 114: Disputed as misleading. 

II 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

VIL 	 The Master Distributorship Agreement Me Wane Entered with Sigma Was 

Proeompetitive. 

Response to No. 115: Disputed as incomplete, vague and misleading. The issues 

addressed by this statement are contradicted by the specific facts set forth and evidence cited in 

90 

CCS ~~ 116-137. The evidence cited in CCS ~~ 116-137 raises a genuine issue of material fact 

Therefore, Complaint Counsel 

contend there is a genuine issue of material fact for trial. 

Response to No. 116: Disputed as misleading. 

The issue addressed by 

this statement is contradicted by the specific facts set forth and evidence cited in CCS ~~ 106­

137. The evidence cited in CCS ~~ 106-137 raises a genuine issue of material fact_ 

91 

Therefore, Complaint Counsel contend there is a genuine issue of 

material fact for trial. 

Response to No. 117: Disputed as incomplete and misleading. The term "formal" is 

vague and ambiguous. 

Subject to the 

General Objection set forth above, Complaint Counsel do not dispute that the Respondent quoted 

the excerpt ofthe witnesses' testimony accurately. The issue addressed by this statement is 

contradicted by the specific facts set forth and evidence cited in CCS " 106-13 7. The evidence 

cited in CCS" 106-137 raises a genuine issue ofmaterial fact 

Therefore, 

Complaint Counsel contend there is a genuine issue of material fact for trial. 

92 

Response to No.l1S: Disputed in part as vague and misleading. The term "contacts" 

is vague and ambiguous. Complaint Counsel do not dispute 

• 	 Subject to the General Objections set forth above, Complaint Counsel do not dispute that 

Sigma did not own its own foundry inside the United States. The issue addressed by this 

statement is contradicted by the specific facts set forth and evidence cited in CCS ~~ 106-137. 

The evidence cited in CCS ~~ 106-137 raises a genuine issue ofmaterial fact as to Sigma's 

decision 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 119: Disputed as misleading. 

-

Subject to the General Objections set forth above, Complaint Counsel 

do not dispute that the Respondent quoted the excerpt ofthe witnesses' testimony accurately. 

The issue addressed by this statement is contradicted by the specific facts set forth and evidence 

cited in CCS ~~106-137. The evidence cited in CCS ~~ 106-137 raises a genuine issue of 

93 

material fact as to 

. Therefore, Complaint Counsel contend there is a genuine issue of 

material fact for trial. 

Response to No. 120: Disputed as incomplete and misleading. Subject to the General 

Objection set forth above, Complaint Counsel do not dispute that the Respondent quoted the 

excerpt ofthe witnesses' testimony accurately. 

III 

94 

See also, CCS ~~ 122-124.). The 

issue addressed by this statement is contradicted by the specific facts set forth and evidence cited 

in CCS ~~ 106-137. The evidence cited in CCS ~~ 106-137 raises a genuine issue ofmaterial 

fact as to the timing of Sigma's domestic entry. Therefore, Complaint Counsel contend there is a 

genuine issue ofmaterial fact for trial. 

Response to No. 121: Disputed as misleading. Subject to the General Objection set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 106-137. 

The evidence cited in CCS ~~ 

106-137 raises a genuine issue ofmaterial 

Therefore, Complaint Counsel contend there is a genuine issue ofmaterial fact 

for trial. 

95 
Response to No. 122: Disputed as misleading. Subject to the General Objection set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. The issue addressed by this statement is contradicted by the 

specific facts set forth and evidence cited in CCS ~~ 106-137. 

The evidence cited in CCS ~~ 106-137 raises a genuine issue of 

material Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 123: Disputed as misleading. Complaint Counsel do not dispute that 

the Fittings market had declined in 2009 

_ Subject to the General Objection set forth above, Complaint Counsel do not dispute that 

the Respondent quoted the excerpt ofthe witnesses' testimony accurately. The issue addressed 

by this statement is contradicted by the specific facts set forth and evidence cited in CCS ~~ 106­

96 

137. The evidence cited in CCS ~~ 106-137 raises a genuine issue ofmaterial fact_ 

Therefore, Complaint Counsel contend there is a 

genuine issue ofmaterial fact for trial. 

Response to No. 124: Disputed as misleading. 

Subject to the General Objection set forth above, Complaint 

Counsel do not dispute that the Respondent quoted the excerpt ofthe witnesses' testimony 

accurately. The issue addressed by this statement is contradicted by the specific facts set forth 

and evidence cited in CCS ~~ 106-137. The evidence cited in CCS ~~ 106-137 raises a genuine 

issue ofmaterial Therefore, Complaint Counsel 

contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 125: Disputed as misleading. Subject to the General Objection set 

forth above, Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe 

witnesses' testimony accurately. On its face, the testimony does not support the proposition for 

97 
which Respondent cites it. There is no testimony, and certainly no contemporaneous evidence, 

The issue 

addressed by this statement is contradicted by the specific facts set forth and evidence cited in 

CCS ~~ 106-137. The evidence cited in CCS ~~ 106-137 raises a genuine issue ofmaterial fact 

Therefore, Complaint Counsel 

contend there is a genuine issue ofmaterial fact for trial. 

Response to No. 126: Disputed as misleading. 

Subject to the Specific and General Objections set forth above, Complaint 

Counsel do not dispute that the Respondent quoted the excerpt ofthe witnesses' testimony 

accurately. 

CCS ~~ 106-137. The 

evidence cited in CCS ~~ 106-137 raises a genuine issue ofmaterial 

Therefore, 

Complaint Counsel contend there is a genuine issue ofmaterial fact for trial. 

98 

Response to No. 127: Disputed as incomplete and misleading. 

Subject to the Specific and General Objections set forth above, 

Complaint Counsel do not dispute that the Respondent quoted the excerpt ofthe witnesses' 

testimony accurately_ The issue addressed by this statement is contradicted by the specific facts 

set forth and evidence cited in CCS ~~106-137_ The evidence cited in CCS ~~ 106-137 raises a 

genuine issue ofmaterial fact Therefore, Complaint 

Counsel contend there is a genuine issue ofmaterial fact for trial. 

99 

Dated: June 22, 2012. Respectfully submitted, 

sf Edward D. Hassi 

Counsel Supporting the Complaint 

600 Pennsylvania Ave., NW 

Washington, D.C. 

(202) 326-2470 

(202) 326-2470 Facsimile 

ehassi@ftc.gov 

99 

CERTIFICATE OF SERVICE 


I hereby certifY that on June 22, 2012, I filed the foregoing document electronically using 

the FTC's E-Filing System, which will send notification ofsuch filing to: 

Donald S. Clark 

Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-I13 

Washington, DC 20580 

I also certify that I delivered via electronic mail and hand delivery a copy ofthe 

foregoing document to: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-ll 0 

Washington, DC 20580 

I further certify that I delivered via electronic mail a copy ofthe foregoing document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

william.lavery@,bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard(a),mavnardcooper .com 

Counselfor Respondent Mc Wane, Inc. 

32 
CERTIFICATE FOR ELECTRONIC FILING 

I certify that the electronic copy sent to the Secretary ofthe Commission is a true and 

correct copy ofthe paper original and that I possess a paper original ofthe signed document that 

is available for review by the parties and the adjudicator. 

June 22, 2012 By: 	 sl Thomas H. Brock 

Attorney 

33 

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Berry Dep 

Bhargava Dep 

Box Dep 

eoryn Dep 

Groeniger Dep 

Morrison IH 

Morrison Dep 

Morton Dep 

Page Dep 

Pais Dep 

Pitts IH 

Saha Dep 

Sheley Dep 

Thees Dep 

Webb Dep