__________________________________________ 

 

 

 

 

 

 

 

07 10 2012 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

Respondent. ) 

__________________________________________) 

COMPLAINT COUNSEL’S OPPOSITION TO 

RESPONDENT MCWANE, INC.’S MOTION FOR RECONSIDERATION 

AND MOTION TO STRIKE 

Respondent McWane, Inc.’s Motion for Reconsideration (“Motion for 

Reconsideration”) and its accompanying Motion to Strike Complaint Counsel’s Motion 

to Compel Responses to Requests for Admission as Premature and Moot, or in the 

Alternative, Opposition to Complaint Counsel’s Motion (“Motion to Strike”) should be 

denied. Although disguised as motions, McWane’s filing is really nothing more than an 

untimely opposition to a motion this Court has already granted. None of the 

circumstances warranting reconsideration of an order are present here, and Respondent’s 

Motion to Strike, filed well-after the deadline for a response passed – and after the Court 

ruled – on Complaint Counsel’s Motion to Compel Respondent McWane Inc.’s 

Responses to Requests for Admission (“Motion to Compel”), see July 5, 2012 Order 

Granting Complaint Counsel’s Motion to Compel Respondent McWane Inc.’s Responses 

to Requests for Admission (“Order”), is both untimely and meritless. 

Moreover, Respondent engaged in no meet and confer discussions with 

Complaint Counsel before filing its Motion to Strike or its Motion for Reconsideration in 

violation of Paragraph 4 of the February 15, 2015 Scheduling Order. See Holleran Decl. 

(July 10, 2012) at ¶ 14. Both motions should therefore be denied on those grounds as 
PUBLIC

well. See February 15, 2015 Scheduling Order, as amended (June 1, 2012) (“Scheduling 

Order”), at 4 (“Motions that fail to include such separate statement [regarding meet and 

confer efforts] may be denied on that ground.”). 

A. The Court Should Deny Respondent’s Motion for Reconsideration 

Reconsideration of an Administrative Law Judge’s order is only appropriate in 

limited circumstances involving the emergence of new facts or law, or the court’s failure 

to consider material facts presented to it. As this Court ruled in 2010: 

A motion for reconsideration of a decision may be made 

only on the grounds of: (a) a material difference in fact or 

law from that presented to the administrative law judge 

before such decision, that in the exercise of reasonable 

diligence could not have been known to the party moving 

for reconsideration at the time of such decision; (b) the 

emergence of new material facts or a change of law 

occurring after the time of such decision; or (c) a manifest 

showing of a failure to consider material facts presented to 

the Administrative Law Judge before such decision. 

In re Intel Corp., 2010 FTC LEXIS 47, at * 4 (May 28, 2010) (emphasis added) (citations 

omitted). Due to the significant interest in the finality of judicial decisions, it is a “heavy 

burden” for a party to meet the standard for reconsideration, and motions for 

reconsideration should be granted only “sparingly.” Id. at *4-7; see also In re Basic 

Research, LLC, 2006 FTC LEXIS 7, *4-7 (Jan. 10, 2006) (same). McWane’s oneparagraph Motion for Reconsideration does not meet that heavy burden. 

Respondent does not assert that there are any new facts or any new law that 

“could not have been known to the party moving for reconsideration at the time of such 

decision.” See Intel, 2010 FTC LEXIS 47, at *4. The facts and law on which the 

Respondent’s Motion are premised were known to it before McWane’s July 2, 2012 

filing deadline and could therefore have been raised in a timely-filed opposition. 

2
 
 

 

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Specifically, Respondent bases its Motion for Reconsideration on the fact that Complaint 

Counsel allegedly failed to conclude the meet and confer discussions before filing its 

Motion to Compel. See Motion for Reconsideration at 1. Even if it were true (which it is 

not), Respondent certainly knew the status of those discussions when it allowed the time 

to oppose Complaint Counsel’s motion to lapse.1 

Respondent also does not argue that reconsideration is necessary to correct a 

“manifest injustice.” See Basic Research, 2006 FTC LEXIS 7, at *4-7. Respondent 

offers no reason or justification for its failure to file a timely response to Complaint 

Counsel’s Motion to Compel. Respondent is well-aware of Rule 3.38’s substantive and 

procedural requirements: Respondent is represented by very experienced antitrust 

counsel who have twice availed themselves of Rule 3.38’s provisions in this matter. See 

Respondent’s Opposition to Complaint Counsel’s Motion to Compel Answers to 

Interrogatory Nos. 13-16; see also Respondent’s Motion to Compel Answers to 

Interrogatories. Indeed, this Court explicitly set forth the timing requirements of Rule 

3.38 in its April 9, 2012 Order Denying Complaint Counsel’s Motion for Expedited 

Briefing. 

Respondent does not contest the fact that Complaint Counsel properly served its 

Motion to Compel on Respondent, and does not otherwise assert that it somehow did not 

receive a copy of Complaint Counsel’s Motion to Compel. Moreover, Complaint 

Counsel raised Respondent’s failure to respond to its Motion to Compel on July 3, 2012, 

1

 Somewhat ironically, McWane failed to engage in any meet and confer efforts before 

filing its Motion for Reconsideration, which is grounds for denying this motion. See 

Scheduling Order at 4. 

3
 
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see Holleran Decl., Exh. E, and yet counsel for Respondent chose not to file any response 

for two more days, until after the Court had already ruled. 

Respondent seeks to avail itself of a later filing deadline – 10 days under Rule 

3.22 instead of 5 days under Rule 3.38 – by styling its opposition to Complaint Counsel’s 

Motion to Compel as a Motion to Strike. But Respondent’s Motion is precluded by the 

clear terms of Rule 3.38: “Any response to the motion by the opposing party must be 

filed within 5 days of receipt of service of the motion.” Rule 3.38 (emphasis added). 

Respondent’s contrivance, if allowed, would lead to nonsensical results. The Court is 

required to render its decision on motions to compel within three business days of the 

date in which the response is due. But the Court would not know if it should await a 

motion to strike, or once no motion is filed, immediately file a decision on the properly 

filed motion to compel. Accordingly, Respondent’s Motion for Reconsideration should 

be denied. 

B. Respondent’s Motion to Strike Should Also Be Denied 

Respondent’s Motion to Strike should be denied because it is procedurally and 

substantively meritless. Respondent’s Motion to Strike was filed 10 days after 

Respondent received Complaint Counsel’s Motion to Compel, and it is therefore 

untimely under Rule 3.38. See Rule 3.38. Having been filed after the Court ruled on 

Complaint Counsel’s Motion to Compel, and there being no grounds for reconsideration, 

see supra, Respondent’s Motion to Strike should also be denied as moot. Respondent’s 

failure to engage in any meet and confer efforts with Complaint Counsel before filing its 

Motion to Strike is also grounds for denial. See Scheduling Order at 4. 

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PUBLIC

Substantively, Respondent’s Motion to Strike is also without merit. Complaint 

Counsel fully met and conferred in good faith with Respondent before filing its Motion to 

Compel. See Motion to Compel, Meet & Confer Statement; see also Holleran Decl. at ¶¶ 

3-12. Respondent served its Objections and Responses to Complaint Counsel’s Requests 

for Admissions (“RFA Responses”) on June 8, 2012. On Monday, June 18, 2012, 

Complaint Counsel asked to set a time to meet and confer regarding Respondent’s RFA 

Responses. See id., Exh. A. Counsel for Respondent was first available on the afternoon 

of Wednesday, June 20, 2012; and, as acknowledged by Respondent, counsel met and 

conferred during an hour-long telephone conference. See id., Exh. B; see also Respondent 

McWane, Inc.’s Response to Complaint Counsel’s Statement Regarding Meet and Confer 

Pursuant to Scheduling Order. 

During this discussion, Complaint Counsel specifically addressed each and every 

request for admission (“RFA”) and detailed its concerns with Respondent’s responses. 

Holleran Decl. at ¶¶ 5-7. In a good faith attempt to resolve its issues without having to 

file a motion to compel, Complaint Counsel negotiated and offered compromises 

regarding the meaning of certain terms to which counsel for Respondent had objected as 

vague. Id. Counsel for Respondent, however, did not suggest or otherwise indicate that 

he agreed with any of Complaint Counsel’s concerns, or that any of Complaint Counsel’s 

compromised positions would cause Respondent to amend Respondent’s RFA 

Responses. Id. at ¶ 6. Before making his refusal to amend final, counsel for Respondent 

stated that he needed to confirm Respondent’s position internally. Complaint Counsel 

emphasized that the deadline for filing its motion was Monday, June 25, 2012, and that it 

therefore needed Respondent’s final answer by no later than Friday morning, June 22, 

5
 
2012. Id. at ¶ 7. After hearing no response from Respondent on Friday morning, 

PUBLIC

Complaint Counsel followed up with counsel for Respondent on Friday afternoon, and 

answered a question posed by Respondent’s counsel. See id. at ¶ 8 & Exh. C. 

By 4 p.m. on Monday, June 25, 2012, Respondent still had not provided any 

further response to Complaint Counsel’s concerns. Having received no further response, 

and no substantive response to its concerns, Complaint Counsel reasonably understood 

Respondent’s initial position during meet and confer discussions to be its final position. 

Id. at ¶¶ 8-12. In accord with the deadline for filing motions to compel, as set forth in 

Paragraph Five of the Scheduling Order and Rule 4.3, Complaint Counsel then filed its 

Motion to Compel. See Scheduling Order; Rule 4.3 (“Computation of any period of time 

prescribed or allowed by the rules in this chapter, by order of the Commission or an 

Administrative Law Judge, or by any applicable statute, shall begin with the first business 

day following that on which the act, event, or development initiating such period of time 

shall have occurred.”). 

Thus, Complaint Counsel properly met and conferred with Respondent’s counsel 

in a good faith effort to resolve their disagreement without resorting to motion practice. 

As outlined above and in further detail in the Holleran Declaration, Complaint Counsel 

did not engage in a mere token effort – such as sending a single email without any actual 

discussion with Respondent – and gave Respondent ample opportunity to respond to its 

concerns. But cf. In re Lab Corp of Am., 2011 FTC LEXIS 26, at * (Feb. 8, 2011) 

(finding single email, sent on a Sunday and “only one calendar day before filing a motion 

to compel without awaiting a response to that e-mail, does not constitute a good faith 

effort to resolve by agreement the issues raised by the motion.”). 

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PUBLIC

Complaint Counsel is aware of no authority – and none is cited by Respondent – 

that defines good faith meet and confer efforts as requiring a party to miss filing 

deadlines while it awaits a response from a dilatory party, particularly where the dilatory 

party is well-aware of the deadline. Respondent’s apparent position that Complaint 

Counsel should have missed its filing deadline to permit Respondent to merely confirm 

its final meet and confer position – would impermissibly allow parties to avoid their 

discovery obligations simply by delaying their meet and confer responses. The meet and 

confer process was concluded here by operation of the filing deadline – a deadline that 

was known by Respondent. Accordingly, Complaint Counsel’s Motion to Compel was 

not premature. 

It is apparent from the balance of Respondent’s Motion to Strike that Complaint 

Counsel’s Motion to Compel was also not moot. Respondent’s arguments in support of 

its RFA Responses largely reiterate its improper objections and evasive interpretations of 

the RFAs. See Order (ruling McWane’s RFA Responses to be evasive and its objections 

to be improper). Respondent could have offered to amend its responses in an effort to 

encourage Complaint Counsel to withdraw its motion (see Mot. To Strike, at 2 n. 1). 

Respondent choose not to make any such offer. See Holleran Decl. at ¶ 12. Accordingly, 

Respondent’s Motion to Strike should be denied. 

Conclusion 

For the foregoing reasons, Respondent’s Motion for Reconsideration and Motion 

to Strike should be denied. 

7
 
 

 

 

 

 

Dated: July 10, 2012 Respectfully submitted, 

PUBLIC

 s/ Linda M. Holleran 

Edward D. Hassi, Esq. 

Linda Holleran, Esq. 

Joseph A. Baker, Esq. 

Thomas H. Brock, Esq. 

Michael J. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq.

 Monica M. Castillo, Esq. 

Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 

 Telephone: (202) 326-2470 

 Facsimile: (202) 326-3496 

 Electronic Mail: ehassi@ftc.gov 

8
 
__________________________________________ 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

PUBLIC

) 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

Respondent. ) 

__________________________________________) 

PROPOSED ORDER 

On July 5, 2012, Respondent McWane, Inc. filed a Motion for Reconsideration 

and a Motion to Strike Complaint Counsel’s Motion to Compel Responses to Requests 

for Admission as Premature and Moot, or in the Alternative, Opposition to Complaint 

Counsel’s Motion (“Motion to Strike”). On July 10, 2012, Complaint Counsel opposed 

both motions. Upon consideration of these motions and Complaint Counsel’s opposition 

thereto, this Court denies the Motion for Reconsideration and the Motion to Strike. 

ORDERED:

 ___________________________ 

D. Michael Chappell 

Administrative Law Judge 

______________, 2012 
__________________________________________ 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) PUBLIC

 ) 

McWANE, INC., ) DOCKET NO. 9351 

Respondent. ) 

__________________________________________) 

DECLARATION OF LINDA M. HOLLERAN 

1.	 I have personal knowledge of the facts set forth in this declaration, and if called as 

a witness I could and would testify competently under oath to such facts. 

2.	 I am an attorney at the Federal Trade Commission and Complaint Counsel in 

these proceedings. Attached to this declaration are the exhibits submitted in 

support of Complaint Counsel’s Opposition to Respondent McWane, Inc.’s 

Motion for Reconsideration and its Motion to Strike Complaint Counsel’s Motion 

to Compel Responses to Requests for Admission as Premature and Moot, or in the 

Alternative, Opposition to Complaint Counsel’s Motion. 

3.	 On June 8, 2012, Respondent served its Responses and Objections to Complaint 

Counsel’s Requests for Admissions (“RFA Responses”). On Monday, June 18, 

2012, I contacted William Lavery, counsel for Respondent, to schedule a time to 

meet and confer about Respondent’s RFA Responses. This communication is 

reflected in Exhibit A. Exhibit A is a true and correct copy of an e-mail from L. 

Holleran to W. Lavery, dated June 18, 2012. 

4.	 Mr. Lavery was first available to meet and confer on the afternoon of Wednesday, 

June 20, 2012. Exhibit B is a true and correct copy of an e-mail exchange 
between L. Holleran and W. Lavery, dated June 19, 2012, regarding the 

PUBLIC

scheduling of a meet and confer conference to discuss Respondent’s RFA 

Responses and other issues. 

5.	 On Wednesday, June 20, 2012, I, along with my colleague Joseph Baker, spoke 

with Mr. Lavery regarding Complaint Counsel’s concerns relating to 

Respondent’s RFA Responses. During this discussion, I specifically detailed each 

RFA in which Complaint Counsel had a concern and explained the nature of our 

concern. I also negotiated with Mr. Lavery regarding the definitions for certain 

terms to which Respondent had lodged a vague objection. 

6.	 For example, with respect to RFA No. 18, Mr. Lavery indicated that they could 

not answer this request because they did not know whether offering “less Job 

Pricing” on Domestic Relevant Product than its Imported Relevant Product 

referred to a fewer number of jobs that had received job pricing (or discounts on 

specific, individual waterworks projects), or a reduced level of discounting. I 

replied that they could define the term either way, or a combination of the two, so 

that it was most consistent with how Respondent stored information on job 

pricing, provided they specified in their answer how they had defined the term. 

Notwithstanding Complaint Counsel’s compromise position, Mr. Lavery did not 

agree to supplement Respondent’s response to this request for admission. 

Likewise, Mr. Lavery did not indicate that he agreed with any of Complaint 

Counsel’s concerns about the remaining RFAs that were the subject of Complaint 

Counsel’s motion and he did not agree to supplement any of Respondent’s 

responses. 

2
 
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7. The discussion on June 20, 2012, concluded by Mr. Lavery stating that he needed 

to discuss Respondent’s position internally before asserting its final position with 

respect to Complaint Counsel’s concerns. I told Mr. Lavery that we had to file 

our motion to compel by Monday, June 25, 2012, and that we therefore needed 

his final position by the morning of Friday, June 22, 2012. 

8.	 When I had not heard from Mr. Lavery by the morning of Friday, June 22, 2012, I 

sent Mr. Lavery a follow-up email that afternoon and asked for his final position 

on our meet and confer discussions. Mr. Lavery asked me a limited question 

about Complaint Counsel’s position with respect to one RFA, to which I 

responded later that day. This discussion is reflected in Exhibit C. Exhibit C is a 

true and correct copy of an email exchange between L. Holleran and W. Lavery, 

dated June 22, 2012. 

9.	 I have been engaged in every meet and confer discussion between Complaint 

Counsel and Respondent. It has been the typical practice during such meet and 

confer discussions that Mr. Lavery (or Mr. Stargard before him) to confer 

internally before asserting Respondent’s final position. While it is possible that 

there may be a limited exception to the general rule, I cannot recall a single 

instance where Respondent’s final meet and confer position differed from its 

initial meet and confer position. 

10. Although Mr. Lavery knew of our deadline to file a motion to compel on Monday, 

June 25, 2012, Mr. Lavery did not contact me again on Friday or the following 

Monday to confirm Respondent’s final meet and confer position, or to ask for 

more time to consider its position. Given Respondent’s knowing failure to 

3
 
provide any further response before our motion to compel deadline, and our 

PUBLIC

history of initial meet and confer positions being the final position, Complaint 

Counsel understood Respondent’s silence to mean that it was refusing to 

supplement or further answer its RFA Responses. 

11. Complaint Counsel did not believe that any additional meet and confer efforts 

would yield any additional compromises or otherwise resolve our dispute with 

respect to Respondent’s RFA Responses. Accordingly, after 4 p.m. on Monday, 

July 25, 2012, Complaint Counsel filed its Motion to Compel. 

12. My understanding that we had filed our Motion to Compel based on Respondent’s 

ultimately final meet and confer position was confirmed by my discussion with 

Mr. Lavery on June 27, 2012. In this telephone conversation, I spoke to Mr. 

Lavery about several issues, including Complaint Counsel’s Motion to Compel. 

During that discussion, Mr. Lavery complained that we had filed our motion 

before hearing back from him, but he did not express any willingness on the part 

of Respondent to supplement any of its RFA answers or that it was otherwise 

interested in engaging in additional meet and confer efforts. Exhibit D reflects 

part of this discussion, and is a true and correct copy of an email from L. Holleran 

to W. Lavery, dated June 27, 2012. Mr. Lavery did not respond to this email. 

13. On July 3, 2012, I sent an email to counsel for Respondent, asking if they had 

filed any response to Complaint Counsel’s Motion to Compel. Exhibit E is a true 

and correct copy of an email from L. Holleran to P. Sada, T. Thagard, J. Ostoyich, 

W. Lavery, and A. Truitt, dated July 3, 2012. None of Respondent’s counsel 

replied to this email. 

4
 
 

 

 

 

 

 

PUBLIC

14. Counsel for Respondent has never contacted me -- or any other attorney on behalf 

of Complaint Counsel – to meet and confer or to otherwise discuss its Motion to 

Strike or Motion for Reconsideration. 

I declare under the penalty of perjury that the foregoing is true and correct. Executed this 

10th day of July, 2012, at Washington, DC. 

 s/ Linda M. Holleran 

 Linda M. Holleran

 U.S. Federal Trade Commission 

 Bureau of Competition

 600 Pennsylvania Avenue, NW 

 Washington, DC 20580 

(202) 326-2267 

lholleran@ftc.gov 

Counsel Supporting the Complaint 

5
 
PUBLIC PUBLIC

EXHIBIT A 
Holleran. Linda 

From: 

Sent: 

To: 

Subject: 

Holleran, Linda 

Monday, June 18, 2012 5:54 PM 

william.lavery@bakerbotts.com 

meet and confer 

Hi Will. Are you available tomorrow afternoon or Wednesday to talk about McWane's rfa responses and the difra/thad 

long privilege issue? 

Thanks, 

Linda 

*************************** 

Linda M. Holleran, Esq. 

Anticompetitive Practices Division 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

1 

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PUBLIC PUBLIC

EXHIBIT B 
Holleran. Linda 

From: 

Sent: 

To: 

Subject: 

william.lavery@bakerbotts.com 

Tuesday, June 19, 2012 10:33 AM 

Holleran, Linda 

RE: meet and confer 

Hi Linda. Yes, tomorrow afternoon would be best for me. Does 3:30 work? Also, I'd like to add a few items to the 

agenda -- CC'S rog responses , privilege CC asserted on some Star docs/testimony, and timing of expert depositions. 

Thanks, 

Will 

From: Holleran, Linda [mailto:lholleran@ftc.gov] 

Sent: Monday, June 18, 2012 5:54 PM 

To: Lavery, William 

Subject: meet and confer 

Hi Will. Are you available tomorrow afternoon or Wednesday to talk about McWane's rfa responses and the difra/thad 

long privilege issue? 

Thanks, 

Linda 

*************************** 

Linda M. Holleran, Esq. 

Anticompetitive Practices Division 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s] 

listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such 

information by or to anyone other than the recipient[s] listed above is prohibited. If you have received this message in 

error, please notify the sender immediately at the email address above and destroy any and all copies of this message. 

1 

PUBLIC PUBLIC
PUBLIC PUBLIC

EXHIBIT C 
Holleran, Linda 

From: Holleran, Linda 

Sent: 

To: 

Friday, June 22, 2012 5:18 PM 

'william.lavery@bakerbotts.com' 

Subject: Re: RFA - meet and confer response??? 

Free-riding refers to mcwane providing services, such as promotion or training, that a third party can free ride upon. 

Cherry-picking does not qualify under the traditional definition. If cherry picking is all you're referring to, then we just 

need that clarification. 

From: william.lavery@bakerbotts.com [mailto:william.lavery@bakerbotts.com] 

Sent: Friday, June 2.2., 2.012. 03:30 PM 

To: Holleran, Linda 

Subject: RE: RFA - meet and confer response??? 

Still evaluating your requests. Regarding 37, we'd like clarification on how free riding differs from cherry picking before we 

can make a decision. 

From: Holleran, Linda [mailto:lholleran@ftc.gov] 

Sent: Friday, June 2.2., 2.012. 2.:40 PM 

To: Lavery, William 

Subject: RFA - meet and confer response??? 

thx 

*************************** 

Linda M. Holleran, Esq. 

Anticompetitive Practices Division 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s] 

listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such 

information by or to anyone other than the recipient[s] listed above is prohibited. If you have received this message in 

error, please notify the sender immediately at the email address above and destroy any and all copies of this message. 

1 

PUBLIC PUBLIC
PUBLIC PUBLIC

EXHIBIT D 
Holleran. Linda 

From: 

Sent: 

To: 

Subject: 

Will, 

Holleran, Linda 

Wednesday, June 27, 2012 2:51 PM 

william.lavery@bakerbotts.com 

CC RFAs/Interrogatory answers 

Per Paragraph 5 of the Scheduling Order (and the rules for counting of time), the deadline for filing a mtn to compel was 

Monday, June 25, 2012, which is why we had to file our motion to compel RFA responses by then. I had told you that we 

needed your final position wrt our RFAs by Friday because we had to file our motion to compel by Monday; I followed up 

with you when I hadn't heard back; and so we reasonably understood your position to be that you were not changing 

your answers since that had been your tentative position during our discussion. As far as my discussion with Andreas, 

during initial discussions of our document requests, we were looking for promotional and training materials, and 

custodians that would have such materials, and when Andreas questioned me about why we needed that, I said it would 

be relevant if you were raising a free-riding justification, to which he said that you weren't making that claim and so I 

dropped that from the discovery that McWane had to produce. This is also why I asked during our meet and confer if 

you were denying the RFA because you were defining free-riding to be a reference to your cherry-picking argument, in 

which case, as long as you confirmed that in writing, it would alleviate our concern. 

Notwithstanding the fact that any motion to compel wrt our interrogatory responses would be out oftime, I am 

nevertheless happy to discuss with you any specific examples (so that we can have a meaningful discussion) where you 

are genuinely confused about Complaint Counsel's position, or any specific examples where you believe that there is a 

gap between the information contained in the documents referenced in our interrogatory answers and the interrogatory 

itself. 

Best regards, 

Linda 

*************************** 

Linda M. Holleran, Esq. 

Anticompetitive Practices Division 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

1 

PUBLIC PUBLIC
PUBLIC PUBLIC

EXHIBIT E 
Holleran. linda 

From: 

Sent: 

To: 

Cc: 

Subject: 

Holleran, Linda 

Tuesday, July 03, 2012 2:46 PM 

'pouria.sadat@bakerbotts.com'; 'TThagard@maynardcooper.com'; 

Joseph.ostoyich@bakerbotts.com'; 'william.lavery@bakerbotts.com'; 

'ATruitt@maynardcooper.com' 

Hassi, Edward 

RE: FTC Docket No. 9351; In the Matter of McWane, Inc. 

Let me clarify -I see that the request for oral argument is for the sjm's .... But did you file any responses to our other 

two motions? 

*************************** 

Linda M. Holleran, Esq. 

Anticompetitive Practices Division 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

From: Holleran, Linda 

Sent: Tuesday, July 03, 2012 2:42 PM 

To: 'pouria.sadat@bakerbotts.com'; Hassi, Edward; Brock, Thomas H.; Bloom, Michael J.; Ansaldo, Alexander; Mann, 

Andrew; Green, Geoffrey; Balbach, Jeanine; Martin, Teresa; Kelly, Devon; Castillo, Monica 

Cc: TThagard@maynardcooper.com; joseph.ostoyich@bakerbotts.com; william.lavery@bakerbotts.com; 

ATruitt@maynardcooper.com 

Subject: RE: FTC Docket No. 9351; In the Matter of McWane, Inc. 

Pouria - Did you file any responses to the motions? Or just this request for oral argument? If the former, we didn't 

receive a service copy. Thanks, Linda 

*************************** 

Linda M . Holleran, Esq. 

Anticompetitive Practices Division 

Bureau of Competition 

Federal Trade Conunission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

From: pouria.sadat@bakerbotts. c;;om [mailto :pouria.sadat@bakerbotts.com] 

Sent: Tuesday, July 03, 2012 2:36 PM 

To: Holleran, Linda; Hassi, Edward; Brock, Thomas H.; Bloom, Michael J.; Ansaldo, Alexander; Mann, Andrew; Green, 

Geoffrey; Balbach, Jeanine; Martin, Teresa; Kelly, Devon; Castillo, Monica 

Cc: TThagard@maynardcooper.com; joseph.ostoyich@bakerbotts.com; william.lavery@bakerbotts.com; 

ATruitt@maynardcooper.com 

Subject: FTC Docket No. 9351; In the Matter of McWane, Inc. 

1 

PUBLIC PUBLIC
Counsel. 

Please see the attached, filed electronically today. 

Pouria Sadat 

Paralegal 

Baker Botts L.L.P. 

TheWamer 

1299 Pennsylvania Avenue, N.W. 

Washington, DC 20004-2400 

202.639.7822 (direct) 

202.585.1028 (fax) 

pouria. sadat@bakerbotts.com 

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s] 

listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such 

information by or to anyone other than the recipient[s] listed above is prohibited. If you have received this message in 

error, please notify the sender immediately at the email address above and destroy any and all copies of this message. 

2 

PUBLIC PUBLIC
 

 

 

 

PUBLIC

CERTIFICATE OF SERVICE 

I hereby certify that on July 10, 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-113 

 Washington, DC 20580 

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

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 of the 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@maynardcooper.com 

Counsel for Respondent McWane, Inc. 
 

 

CERTIFICATE FOR ELECTRONIC FILING 

PUBLIC

 I certify that the electronic copy sent to the Secretary of the Commission is a true 

and correct copy of the paper original and that I possess a paper original of the signed 

document that is available for review by the parties and the adjudicator. 

July 10, 2012 By: s/ Thomas H. Brock 

Attorney 

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