i

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman 

 Julie Brill 

 Maureen Ohlhausen

 Joshua Wright

___________________________________

 ) 

In the Matter of ) PUBLIC

 ) 

MCWANE, INC., )

 a corporation, and )

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. ) DOCKET NO. 9351

 )

__________________________________ )

RESPONDENT’S APPLICATION FOR STAY

OF ORDER PENDING REVIEW BY U.S. COURT OF APPEALS

Pursuant to Rule 3.56(d) of the Commission’s Rules of Practice for Adjudicative 

Proceedings, Respondent McWane, Inc. hereby applies to the Federal Trade Commission for 

Stay of its Final Order served on February 11, 2014, pending judicial review by a U.S. Court 

of Appeals.

J. Alan Truitt Joseph A. Ostoyich

Thomas W. Thagard III Erik T. Koons

Maynard Cooper and Gale PC William C. Lavery

1901 Sixth Avenue North Heather Souder Choi

2400 Regions Harbert Plaza Baker Botts L.L.P.

Birmingham, AL 35203 The Warner

1299 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2420

Counsel for Respondent McWane, Inc.

Dated: March 13, 2014
ii

TABLE OF CONTENTS

Page

I. INTRODUCTION..................................................................................................................1

II. ARGUMENT.........................................................................................................................4

A. McWane Will Likely Succeed On Appeal. ..................................................................4

B. McWane and its Customers Will Suffer Irreparable Harm if a Stay Is Not 

Granted...........................................................................................................................8

C. A Stay Would Serve the Public Interest and Would Result in No Significant 

Harm to Any Party......................................................................................................10

III. CONCLUSION..................................................................................................................11
iii

TABLE OF AUTHORITIES

Page(s)

CASES

Atl. Richfield Co. v. USA Petroleum Co.,

495 U.S. 328 (1990)...............................................................................................................8, 9

Barry Wright Corp. v. ITT Grinnell Corp.,

724 F.2d 227 (1st Cir. 1983) (Breyer, J.)...................................................................................9

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,

509 U.S. 209 (1993)...............................................................................................................3, 9

Brown Shoe Co. v. United States,

370 U.S. 294 (1962)...............................................................................................................5, 6

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

429 U.S. 477 (1977)...................................................................................................................5

Cargill, Inc. v. Monfort of Colo., Inc.,

479 U.S. 104 (1986)...................................................................................................................9

CityFed Fin. Corp. v. Office of Thrift Supervision,

58 F.3d 738 (D.C. Cir. 1995).....................................................................................................4

Davis v. Pension Benefit Guar. Corp.,

571 F.3d 1288 (D.C. Cir. 2009).................................................................................................4

Hilton v. Braunskil,

481 U.S. 770 (1987)...................................................................................................................4

In the Matter of McWane, Inc. et al.,

Docket No. 9351 (January 4, 2012)...........................................................................................7

In the Matter of McWane, Inc. et al.,

Docket 9351 (August 9, 2012)...............................................................................................1, 7

In the Matter of McWane, Inc. et al.,

Docket No. 9351 (February 6, 2014).....................................................................................1, 5

In re Novartis Corp.,

128 F.T.C. 233 (1999)................................................................................................................8

Matsushita Elec. Indus. Corp. v. Zenith Radio Corp.,

475 U.S. 574 (1986)...................................................................................................................9

Nken v. Holder,

556 U.S. 418 (2009)...................................................................................................................4

Omega Envtl., Inc. v. Gilbarco, Inc.,

127 F.3d 1157 (9th Cir. 1997) ...................................................................................................2
iv

Pacific Bell Telephone Co. v. linkLine Comm’ns, Inc.,

129 S. Ct. 1109 (2009)...................................................................................................2, 3, 8, 9

Roland Mach. Co. v. Dresser Indus., Inc.,

749 F.2d 380 (7th Cir.1984) ..................................................................................................2, 5

Six Clinics Holding Corp., II v. Cafcomp Sys., Inc.,

119 F.3d 393 (6th Cir. 1997) .....................................................................................................4

Tampa Elec. Co. v. Nashville Coal Co.,

365 U.S. 320 (1961)...................................................................................................................2

United States v. Dentsply Int’l, Inc.,

399 F.3d 181 (3d Cir. 2005).......................................................................................................5

Wash. Metro. Transit Comm’n v. Holiday Tours, Inc.,

559 F.2d 841 (D.C. Cir. 1977)...................................................................................................4

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.,

549 U.S. 312 (2007)...............................................................................................................3, 8

STATUTES

section 5 of the FTC Act..................................................................................................................3

OTHER AUTHORITIES

16 C.F.R. § 3.56...............................................................................................................................3
1

I. INTRODUCTION

The Commission has now dismissed six of the seven counts in the Complaint it brought 

against McWane. The lone remaining claim, Count 6, was a split decision that drew a lengthy 

dissent from Commissioner Wright that chronicled the evolution of the case law on exclusive 

dealing and examined the factual record in detail. Indeed, the dissent on that single Count was 

substantially longer than the majority opinion on all Counts.

Commissioner Wright concluded that Count 6 failed for multiple factual and legal 

reasons. He concluded that “Complaint Counsel fails totally to establish, as it must under the 

antitrust laws, that McWane’s conduct harmed competition” and “[t]he record is clear there is no 

such proof.” Dissenting Statement of Commissioner Joshua D. Wright, In the Matter of 

McWane, Inc. et al., Docket No. 9351 at 4-6 (February 6, 2014). Commissioner Wright found 

“undisputed evidence that Star was able successfully to enter the domestic fittings industry and 

to succeed in expanding its business once it did enter,” and thus the “more plausible inference to 

draw” from Complaint Counsel’s “very weak” “indirect evidence” is that McWane’s rebate 

policy “had almost no impact on Star’s ability to grow its business, which, under the case law, 

strongly counsel’s against holding that McWane’s conduct was exclusionary.” Wright Statement 

at 45-47. Former Commissioner Rosch likewise rejected the FTC’s theory at the outset, stating 

that “the undisputed facts demonstrate that Star’s entry was not de minimis or trivial” and “the 

fact that Star attained a 10 percent share . . . in less than three years undermines Complaint 

Counsel’s basic theory.” Statement of Commissioner J. Thomas Rosch, In the Matter of 

McWane, Inc. et al., Docket 9351 at 5-6 (August 9, 2012); see also Jan. 4, 2012 Statement of 

Commissioner J. Thomas Rosch at 1 (“there is case law in both the Eighth and Ninth Circuits 

blessing the conduct that the complaints charge as exclusive dealing”). 
2

As a result, the Commission promulgated its Order that effectively prohibits McWane 

from engaging in business practices that are perfectly legal, and have been blessed by numerous 

circuit courts. Thus, the Order is unwarranted and will impose substantial hardship on McWane, 

putting it at a distinct disadvantage to its competitors that are under no such restriction. This 

infringes McWane’s rights, will harm its customers, and has no quantified benefit for consumers. 

For these and other reasons, McWane will petition for review in a Circuit Court of Appeals. 

The Commission should not, prior to judicial review, promulgate an Order that is 

unwarranted and goes far beyond the law to prohibit two types of conduct that are plainly lawful 

and plainly pro-competitive: first, the Order would prohibit McWane from selling Domestic 

Fittings exclusively to even a single customer (or seeking any exclusive relationship); second, 

the Order would prohibit McWane from offering any rebate to even a single customer based on 

that customer buying any threshold percentage of McWane’s Domestic Fittings. Courts have 

repeatedly held, though, that even true exclusive dealing arrangements have “well-recognized 

economic benefits” such as “the enhancement of interbrand competition” by incentivizing 

manufacturers to compete vigorously for exlusive distribution, thereby incentivizing the 

distributor to promote its supplier’s products more vigorously against rival manufacturers’ 

products. Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1162 (9th Cir. 1997) (citing 

Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 395 (7th Cir.1984)). And, it only 

becomes a potential antitrust problem if the exclusive dealing contracts are multi-year in length 

and “foreclose competition in a substantial share of the line of commerce affected.” Tampa Elec. 

Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961). Courts have also repeatedly held that price 

concessions of any type benefit customers, are encouraged by the antitrust laws, and cannot 

cause antitrust injury. Pacific Bell Telephone Co. v. linkLine Comm’ns, Inc., 129 S. Ct. 1109 
3

(2009) (“cutting prices in order to increase business often is the very essence of competition.”). 

The only exception—which was not at issue in the case and is not applicable here—is for 

predatorily low prices that are below-cost and raise a dangerous probability they will exclude 

competitors, allowing the defendant to recoup its losses with sustained supra-competitive pricing 

afterward. Id. at 1120 (a plaintiff challenging a defendant’s pricing practices must prove that 

“the prices complained of are below an appropriate measure of [the defendant’s] costs”); see 

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312, 325–26 (2007) 

(“plaintiff must prove that the alleged predatory bidding led to below-cost pricing of the 

predator’s outputs”); Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 

223 (1993) (any harm to a competitor from above-cost rebates simply “represents competition on 

the merits, or is beyond the practical ability of a judicial tribunal to control without courting 

intolerable risks of chilling legitimate price-cutting.”).

Any enforcement prior to, or during, McWane’s well-grounded appeal will thus 

irreparably harm McWane and its customers, and will be contrary to the public interest. The 

Commission’s track record on appeal further underscores the need for a stay: as Commissioner 

Wright recently concluded in an academic paper, the Commission gets reversed 20% of the time 

on appeal, a significantly higher percentage than the reversal rate of Article III judges. See

Joshua D. Wright & Angela Diveley, Do Expert Agencies Outperform Generalist Judges? Some 

Preliminary Evidence from the Federal Trade Commission, J. OF ANTITRUST 

ENFORCEMENT at 16 (Dec. 2012) (“Commission opinions are reversed 20 per cent of the time 

and decisions by Article III judges are reversed only 5 per cent of the time.”). For these reasons 

and the reasons below, the Commission should stay its Final Order pending judicial review.
4

II. ARGUMENT

Pursuant to Rule 3.56(b), “(a)ny party subject to a cease and desist order under section 5 

of the FTC Act . . . may apply to the Commission for a stay of all or part of that order pending 

judicial review.” 16 C.F.R. § 3.56(b). McWane will petition for review by filing a timely notice 

of appeal in a federal Circuit Court of Appeals. Under Rule 3.56(c), an applicant for a stay must 

address: (1) the likelihood of the applicant’s success on appeal; (2) whether the applicant will 

suffer irreparable harm if a stay is not granted; (3) the degree of injury to other parties if a stay is 

granted; and (4) why the stay is in the public interest. Id. These four factors are to be balanced 

with one another and “cannot be reduced to a set of rigid rules.” Hilton v. Braunskil, 481 U.S. 

770, 777 (1987); CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 

1995). Moreover, the strength of one factor may outweigh “rather weak” arguments in other 

areas. See Wash. Metro. Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843-45 (D.C. 

Cir. 1977) (granting stay despite the applicant’s inability to prevail on one factor). That is, the 

traditional factors are typically evaluated on a sliding scale and a strong showing on one factor 

overrides a weak showing in another. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 

1291 (D.C. Cir. 2009). In this case, McWane meets all four factors, and has a particularly strong 

showing of a likelihood of success on appeal.

A. McWane Will Likely Succeed On Appeal.

To meet the requirement of demonstrating the likelihood of success on appeal, McWane 

need not prove that it will prevail. Instead, it must only show that its appeal involves serious and 

substantial questions going to the merits of the Commission’s decision. Six Clinics Holding 

Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (“it is ordinarily sufficient if 

the plaintiff has raised questions going to the merits so serious, substantial, difficult, and 

doubtful as to make them a fair ground for litigation.”); In the Matter of Novartis Corp., 128 
5

F.T.C. 233, 235 (1999) (“. . .it is well settled that arguable difficulties arising from the 

application of the law to a complex factual record can support a finding that a stay applicant has 

made a substantial showing on the merits.”). 

McWane satisfies this requirement, as the Commission’s Opinion is contrary to wellsettled case law. The Supreme Court and numerous Circuits have repeatedly held that an 

antitrust violation requires harm to competition—instead of a single competitor—such as 

increased prices or decreased output. See Brown Shoe Co. v. United States, 370 U.S. 294, 320 

(1962) (antitrust laws concerned with the “protection of competition, not competitors”); 

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) (holding plaintiff competitor 

lacked standing to pursue antitrust claim that harmed it as a competitor but did not harm 

competition); United States v. Dentsply Int’l, Inc., 399 F.3d 181, 187 (3d Cir. 2005) (“Predatory 

or exclusionary practices in themselves are not sufficient. There must be proof that competition, 

not merely competitors, has been harmed”); Roland Mach. Co., 749 F.2d at 395 (“The exclusion 

of one or even several competitors, for a short time or even a long time, is not ipso facto 

unreasonable. The welfare of a particular competitor who may be hurt as the result of some trade 

practice is the concern not of the federal antitrust laws.”). 

Here, the Commission was sharply split and Commissioner Wright’s dissent concluded 

that “Complaint Counsel fail[ed] totally to establish, as it must under the antitrust laws, that 

McWane’s conduct harmed competition” and “[t]he record is clear there is no such proof.” 

Dissenting Statement of Commissioner Joshua D. Wright, In the Matter of McWane, Inc. et al., 

Docket No. 9351 at 4-6 (February 6, 2014). Commissioner Wright found Complaint Counsel’s 

legal arguments “at best, question begging, and, at worst, misleading,” and further noted that 

what was “strikingly absent” from the Commission’s decision was “any evidence establishing 
6

the requisite analytical link between what the Commission describes as ‘foreclosure’ and harm to 

competition.” Id. at 25-26. Thus, given the “dearth of record evidence demonstrating 

McWane’s conduct has had an adverse effect on competition,” Commissioner Wright dissented 

from the Commission’s decision, finding that Complaint Counsel failed to establish a necessary 

element of a monopolization claim: “that McWane’s conduct was [actually] exclusionary.” Id.

at 45-47. 

Commissioner Wright also found evidence of harm to even a single competitor lacking, 

as there was “undisputed evidence that Star was able successfully to enter the domestic fittings 

industry and to succeed in expanding its business once it did enter.” Id. He thus concluded that 

the “more plausible inference to draw” from Complaint Counsel’s “very weak” “indirect 

evidence” is that McWane’s rebate policy “had almost no impact on Star’s ability to grow its 

business, which, under the case law, strongly counsel’s against holding that McWane’s conduct 

was exclusionary.” Id. Indeed, the ALJ likewise found that “[c]learly, Star entered the Domestic 

Fittings market” during tough economic times when “[n]o other supplier of imported Fittings” 

and “no pipe supplier or domestic foundry . . . [even] considered entering the market for 

manufacturing and selling Domestic Fittings.” Initial Dec. at 377, 383. “[S]ince its entry in 

2009, Star has sold Domestic fittings every month and every year” and was able to successfully 

“pick off” orders of Domestic Fittings from McWane,” and at the time of trial, was on pace “to 

have its best year ever for Domestic Fittings sales in 2012.” F. 1134-35, 1141-44. 

In any event, Star was “a less efficient supplier of domestic Fittings than McWane 

because of its use of multiple jobber factories, rather than its own, dedicated foundry” with 

prices that were always higher than McWane’s. Initial Dec. at 411. Thus, Star’s successful entry 

did not enhance consumer welfare (and, even if Star was somehow excluded it would be 
7

meaningless to competition): “the presence of Star in the Domestic Fittings market in various 

states did not result in lower prices.” F. 1090. Complaint Counsel did not test and prove harm to 

a single competitor, much less to competition itself, as required under the law. This reason alone 

satisfies the first prong of the test, and counsels against enforcement of the Order prior to judicial 

review.

Commissioner Wright’s dissent is buttressed by the two dissents of former Commissioner 

Rosch, who served on the Commission during the pre-trial phases of the case. Commissioner 

Rosch specifically dissented from the FTC’s pursuit of this claim at the outset, concluding that 

there was nothing illegal or unfair about McWane’s rebate program. Commissioner Rosch held 

that “I do not think that the Complaint against McWane adequately alleges exclusive dealing as a 

matter of law. In particular, there is case law ... blessing the conduct that the complaints charge 

as exclusive dealing.” January 4, 2012 Rosch Statement at 1. On summary judgment he again 

concluded that this count should be dismissed, because “[e]valuated under any objective 

standard, and viewing all inferences in a light most favorable to Complaint Counsel (as we 

must), the undisputed facts demonstrate that Star’s entry was not de minimis or trivial. . . . Thus, 

the fact that Star attained a 10 percent share of the domestic-only DIPF market - - from zero 

share - - in less than three years undermines Complaint Counsel’s basic theory” and “would not 

lead a rational trier of fact to find for Complaint Counsel.” August 9, 2012 Rosch Statement at 

6.

On appeal, McWane will challenge the Commission’s finding against McWane on the 

single remaining count as directly contrary to long-standing case law. As discussed above, 

McWane has demonstrated that it has serious and substantial grounds for its appeal and is likely 

to succeed.
8

B. McWane and its Customers Will Suffer Irreparable Harm if a Stay Is 

Not Granted.

McWane and its customers will suffer irreparable harm if a stay is not granted here. 

Irreparable harm warranting a stay has been found when compliance with an order subsequently 

reversed on appeal would result in: (1) unrecoverable costs and business losses; (2) confusion 

and costly notification; (3) harm to reputation; and (4) prohibition of lawful business activities. 

Absent a stay, McWane (or its customers) will suffer each of these consequences. See, e.g., In re 

Novartis Corp., 128 F.T.C. 233, 235-36 (1999) (“such costs constitute irreparable injury under 

these facts.”). 

The Commission’s Order requires McWane to cease and desist from “[i]nviting, entering 

into, adhering to, maintaining, implementing, enforcing, or attempting thereto any condition, 

policy, practice, agreement, contract, or understanding that requires Exclusivity with a Customer. 

. . .” Final Order at 3-4.1

 This effectively bars McWane from having an exclusive Domestic 

Fittings sales relationship with even a single customer. Numerous circuits have held that 

exclusive dealing arrangements are often procompetitive and have “well-recognized economic 

benefits” for customers. Omega Envtl., 127 F.3d at 1162 (citing Roland Mach. Co., 749 F.2d at 

395). Exclusive deals are only problematic if the exclusive dealing contracts are multi-year in 

length and “foreclose competition in a substantial share of the line of commerce affected.” 

Tampa Elec., 365 U.S. at 327. Thus, the Commmission’s overbroad Order would deprive 

McWane and many of its customers of “well-recognized economic benefits” that courts have 

found to be procompetitive and perfectly lawful, and would unfairly inhibit McWane’s ability to 

 1 The Order defines “Exclusivity” or “Exclusive” as “any requirement, whether formal or informal, or direct or 

indirect, by the Respondent that a Customer purchase all of their Domestic DIPF from Respondent, or any other 

requirement that a Customer restrain, refrain from, or limit its future purchases of Domestic DIPF from any 

Competitor.” Final Order at 2.
9

compete with its primary competitor for domestic sales, Star, who at the time of trial had dozens 

of exclusive customers itself. F. 1141-43. 

The Order also restricts McWane from “inviting, entering into, adhering to, maintaining, 

implementing, enforcing, or attempting thereto any condition, policy, practice, agreement, 

contract, or understanding that offers or provides any Retroactive Incentive” for a period of 10 

years. Id.2 The Order thus prohibits McWane from offering any rebates, discounts, and other 

incentives conditioned on Domestic Fittings exclusivity to even a single customer, which are 

perfectly lawful under well-settled precedent, and in fact lower prices for consumers. This is 

especially problematic, as rebates are simply price concessions, and the Supreme Court has 

repeatedly recognized that offering lower prices in the form of rebates is lawful and beneficial to 

customers, and cannot cause antitrust injury so long as those prices are above cost. linkLine, 129 

S. Ct. at 1120 (to be problematic, prices must be “below an appropriate measure of [the 

defendant’s] costs”). Competition is benefited, not harmed, when a more efficient firm such as 

McWane is permitted to offer discounts and rebates to increase its sales, keeping its last 

remaining domestic foundry in business, even if it thereby takes business away from a less 

efficient rival. As the Supreme Court has explained, “cutting prices in order to increase business 

often is the very essence of competition.” Id.

Thus, on its face the Order is so overbroad that it will not only harm McWane by 

prohibiting it from competing on a level playing field with its less efficient rival but will also 

deprive McWane’s customers of well-recognized economic benefits such as rebates and other 

price concessions. The Order’s overbroad mandate therefore harms the very consumers the 

 2 The Order defines “Retroactive Incentive” as “any flat or lump-sum payment of monies or any other item(s) of 

pecuniary value to a customer based upon the Customer’s sales or purchases of Respondent’s Domestic DIPF 

reaching a specified threshold. . .or otherwise reducing the Price of one unit of Respondent’s Domestic DIPF 

because of the purchase or sale of an additional unit of that product.” Id. at 3.
10

agency is tasked with protecting. See Arthur Murray Studio of Washington, Inc. v. F.T.C., 458 

F.2d 622, 625 (5th Cir. 1972) (“Moreover, the remedy should be no broader in restricting 

legitimate acts than is reasonably necessary under the circumstances obtaining.”).

The Commission’s Order will also unquestionably threaten the viability of McWane’s 

last remaining domestic foundry, Union Foundry. McWane’s modest rebate policies are simply 

efforts to keep enough volume to keep Union Foundry alive. The Commission’s Order puts 

McWane at risk of having a less efficient competitor free ride on its efforts by simply buying a 

few dozen patterns—without investing in a foundry or a full line of Fittings—and potentially 

grab the lion’s share of the highest volume Fittings. That risk of being “cherry picked” could 

leave Union Foundry with only low-volume “oddball” Fittings and insufficient tonnage to justify 

remaining in business. (Normann, Tr. 5055; JX 638 (McCullough, IHT at 34-36).) Such a 

shutdown would clearly constitute irreparable injury and be bad for customers, who would then 

be left with Star’s less efficient, higher priced jobber-made Domestic Fittings. Customers will 

also be worse off without the benefits of the exclusive sales relationships and rebates that the 

Order would bar.

C. A Stay Would Serve the Public Interest and Would Result in No 

Significant Harm to Any Party.

Here, as discussed in detail above, the Order would cause harm, not protection, for 

consumers of ductile iron pipe fittings who benefit from McWane’s lower prices. Indeed, the 

ALJ did not find that any purported harm caused by McWane’s rebate policy was either ongoing 

or likely to recur. Initial Dec. 445-47. There were no Findings addressing any purported current 

or ongoing impacts on competition or consumers—to the contrary, the record demonstrates that 

McWane’s rebates changed more than three years ago (Id. at 445)—but the Commission’s Order 
11

will punish all customers (and McWane) for years to come with no corresponding benefit to 

customers. 

The Commission’s Order likewise imperils the future of McWane’s last remaining 

domestic foundry, which the ALJ found was more efficient than Star. Without Union Foundry, 

hundreds of employees will lose their jobs and customers will suffer increased prices for 

Domestic Fittings. Thus, the Order will not serve the public interest and will harm the very 

consumers the Commission is tasked with protecting.

III. CONCLUSION

For all the foregoing reasons, the Commission should stay the effect and enforcement of 

its Order pending final disposition of McWane’s appeal.

Dated: March 13, 2014 Respectfully submitted, 

/s/ William C. Lavery

Joseph A. Ostoyich 

Erik T. Koons

William C. Lavery

Heather Souder Choi

BAKER BOTTS LLP

1299 Pennsylvania Avenue, NW

Washington, DC 20004-2402

(202) 639-7700

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

Counsel for Respondent

McWane, Inc.
12

CERTIFICATE OF SERVICE

I hereby certify that on March 13, 2014, a true and correct copy of a RESPONDENT’S 

APPLICATION FOR STAY OF ORDER PENDING REVIEW BY U.S. COURT OF APPEALS 

was filed electronically in PDF format using the FTC’s E-Filing System, and served by hand 

delivery on the following:

Donald S. Clark

Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Rm. H-113

Washington, DC 20580

DCLARK@ftc.gov

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

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

Washington, DC 20580

OALJ@ftc.gov

I further certify that on March 13, 2014, a true and correct copy of RESPONDENT’S 

APPLICATION FOR STAY OF ORDER PENDING REVIEW BY U.S. COURT OF APPEALS 

was served by email on the following:

Ted Hassi

Linda Holleran

Thomas Brock

Federal Trade Commission

601 New Jersey Ave., NW

Rm. NJ-6249

Washington, DC 20001

EHASSI@ftc.gov

LHOLLERAN@ftc.gov

TBROCK@ftc.gov

By: /s/ William C. Lavery____

William C. Lavery

Counsel for McWane, Inc.
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman 

 Julie Brill 

 Maureen Ohlhausen

 Joshua Wright

___________________________________

 ) 

In the Matter of ) PUBLIC

 ) 

MCWANE, INC., )

 a corporation, and )

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. ) DOCKET NO. 9351

 )

__________________________________ )

[PROPOSED] ORDER GRANTING RESPONDENT’S APPLICATION FOR

STAY PENDING REVIEW BY U.S. COURT OF APPEALS

Upon consideration of Respondent McWane, Inc.’s application to stay enforcement of 

the Commission’s Order, issued January 30, 2014,

IT IS ORDERED that enforcement of the Commission’s Final Order of January 30, 

2014 be stayed upon the filing of a timely petition for review of the Order in an appropriate 

court of appeals pursuant to 15 U.S.C. § 45(c). This stay shall remain effective until the 

expiration of all periods for petitions for rehearing, rehearing en banc or certiorari, or until 

final disposition of all such petitions and any proceedings initiated by a grant of such a 

petition.

ORDERED:

ISSUED: , 2014