UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Deborah Platt Majoras, Chairman

Orson Swindle

Thomas B. Leary

Pamela Jones Harbour

Jon Leibowitz

CHICAGO BRIDGE & IRON COMPANY

a corporation

CHICAGO BRIDGE & IRON COMPANY N.V., ) a foreign corporation, 

Docket No. 9300

In the Matter of

PITT-DES MOINES, INC.,

a corporation.

ORDER GRANTING CB&I'S MOTION FOR CLARIFICATION; DENYING 

MOOT CB&I'S MOTION FOR STAY; DIRECTING FURTHER BRIEFING ON

COMPLAINT COUNSEL'S MOTION FOR CLARIFICATION; AND

DENYING AS MOOT CB&I'S REQUEST TO TOLL THE TIME PERIOD

FOR FILING PETITION FOR REVIEW

On Februar 1 , 2005 , Respondents Chicago Bridge & Iron CompanyN.V. and Chicago

Bridge & Iron Company ("CB&I") filed a petition to reconsider the Commission s opinion and to

modify the Commission s order, issued pursuant to Section 7 ofthe Clayton Act, 15 U.S.

and Section 5 ofthe FTC Act, 15 U. 45. CB&I also filed a separate motion for clarification

of the Commission s order or, in the alternative, for a stay pending judicial review. On January

2005, Complaint Counsel filed a petition for reconsideration to clarfy Respondents

obligations as to the Pitt-Des Moines and CB&I corporate names. This Order addresses the

paries' motions for clarification and Respondents ' motion for stay and request to toll the time

period for filing a petition for review.
Respondents' Motion for Clarifcation or. in the Alternative. for a Stay

Respondents request clarification that Paragraph III ofthe Commission s order - which

requires CB&I to reorganize its Industrial Division and, to the extent necessary, its water tank

unit into two separate, stand-alone divisions for purposes of divesting one of them is a

divestiture provision within the meaning of Section 5(g)(4) ofthe FTC Act, 15 U. c.~ 45(g)(4),

and is therefore automatically stayed pending Respondents' appea1. In the alternative

Respondents request that the Commission exercise its discretion to stay Paragraph II of its order

pending resolution of all appeals. Complaint Counsel supports entry of a discretionary stay of

Paragraph II but asserts that Paragraph III is not on its face a divestiture provision and thus

would not be stayed. We believe that the provision requiring the division of assets makes sense

only as an immediate forerunner to divestiture in this case. It would therefore be premature for

CB&I to divide these assets until CB&I's motion for reconsideration and rights of judicial review

have been exhausted. We further believe that Paragraph III is, in essence, a divestiture provision

within the meaning of Section 5(g)( 4) and is subject to the statutory stay.

For these reasons, we conclude that Respondents' motion for clarfication should be

granted. Accordingly, we deny CB&I's motion for a discretionary stay as moot. CB&I has not

requested a stay of any other provision of the Commission s order. As a consequence

Paragraphs III, IV and V of the order are stayed by operation of law; no other provision is stayed.

Complaint Counsel's Motion for Clarification

Complaint Counsel seeks clarification of the Commission s order to make clear that the

purchaser of the assets sold pursuant to the Commission s divestiture order shall not acquire any

right or title to the CB&I name. CB&I agrees that this clarification is appropriate.

Complaint Counsel also seeks clarification of the Commission s order to require transfer

along with the divested entity, of the Pitt-Des Moines ("PDM") name and mark. In response

CB&I has represented that its "one-year, non-renewable, non-exclusive transitional license" to

the use ofPDM' s mark expired on February 6 2002.

Weare concerned that a potential purchaser of the divested entity may need to use either

the PDM or the CB&I name during a transitional period, in order to restore competition in the

relevant markets. PDM remains a party to this proceeding, but it has not objected or otherwise

presented its views on the inclusion of the PDM name in assets of the divested entity. CB&I

appears to have assumed, in its response to Complaint Counsel' s motion to clarify, that it would

not be called on to allow use of its own name, in the event PDM' s name could not be included in

the divested entity s assets.

Accordingly, we direct that CB&I and PDM each fie a brief within 10 calendar days of

service ofthis order, addressing the feasibility of granting a transitional license that would allow

a purchaser to use its name, and setting forth any consequences of granting such a license that it
wishes to call to the Commission s attention. In addition, because CB&I has argued that certain

contract provisions would make it difficult if not impossible to assign its contracts, CB&I should

discuss why a transitional license to its name would not address that problem. Complaint

Counsel is granted leave but is not required to file a response within 10 calendar days after

service of Respondents' briefs on this issue. If Complaint Counsel does not intend to file a

response, we direct Complaint Counsel to so inform the Commission within the 1 O-day time

period.

CB&l's Request to Toll Statutory Time Period for Seeking Judicial Review

CB&I has requested that the Commission toll the time period for filing its petition for

judicial review until the Commission has acted on CB&I's petition to the Commission , which

seeks reconsideration pursuant to Section 3.55 or, in the alternative, Section 3.72(a) ofthe

Commission s rules. 16 C.F.R.~~ 3.55, 4.72(a). On March 10 2005 , CB&I filed a petition for

review in the United States Court of Appeals for the Fifth Circuit. Accordingly, we deny this

portion of CB&I' s motion as moot.

Accordingly,

IT IS ORDERED THAT the Commission s order in this matter, issued on January 6

2005, is clarified to provide that division ofCB&I's assets pursuant to Paragraph II is a

divestiture-related provision within the meaning of Section 5(g)(4) of the FTC Act, 15

U.S. ~ 45(g)(4);

IT IS FURTHER ORDERED THAT CB&I and PDM each file a brief within 10

calendar days of service of this order, addressing the feasibility and consequences of granting a

transitional license allowing the purchaser ofthe divested entity to use its (CB&I's or PDM'

name for a transitional period after divestiture;

IT IS FURTHER ORDERED THAT Complaint Counsel respond to CB&I's and

PDM' s briefs on this issue within 10 calendar days of service or, in the alternative, give the

Commission notice within that 1 O-day time period that no response is necessary; and

IT IS FURTHER ORDERED THAT CB&I's request that the Commission toll the time

period for filing its petition for judicial review until the Commission has acted on CB&I's

petition to the Commission is denied as moot.

By the Commission.

Donald S. Clark

Secretar

ISSUED: March 15 2005