UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

McWANE, INC., 

a corporation. 

NON-PARTY UNITED STATES PIPE AND FOUNDRY COMPANY, LLC'S MOTION 


FOR IN CAMERA TREATMENT OF COMPLAINT COUNSEL 


PROPOSED TRIAL EXHIBITS 


United States Pipe and Foundry Company, LLC ("U.S. Pipe"), a non-party to this matter, 

respectfully moves, pursuant to 16 C.F.R. § 3.4S(b), for in camera treatment of two documents 

that Complaint Counsel have designated for introduction into evidence in the administrative trial 

in this matter. Specifically, U.S. Pipe requests in camera treatment for a period of two years of 

two spreadsheets that contain highly confidential and competitively sensitive U.S. Pipe purchase 

and sales data. 

I. INTRODUCTION 

By letters dated July 17, 2012, Complaint Counsel and McWane, Inc. ("McWane") 

notified U.S. Pipe and Mueller Water Products, Inc. ("Mueller") that they intend to introduce 

into evidence certain documents and deposition testimony that U.S. Pipe produced pursuant to 

compulsory process issued in this matter. Complaint Counsel and McWane together designated 

thirty U.S. Pipe documents as well as extensive U.S. Pipe deposition testimony.! U.S. Pipe 

! Certain deposition content that the parties have designated contains or describes 

communications to and from attorneys for the Ductile Iron Fittings Research Association for 

which U.S. Pipe and Mueller have maintained a claim of attorney-client privilege. McWane's 

counsel read those communications into the record from privileged documents that were not 

produced by U.S. Pipe or Mueller and therefore could not be clawed back by either company. 

U.S. Pipe and Mueller continue to maintain their privilege claim for the communications. 
PUBLIC RECORD 


marked all ofthe designated documents as confidential when it produced them. 

Two of the documents that Complaint Counsel designated, CX 1944 and CX 1945, 

contain recent, detailed U.S. Pipe purchase and sales data that is competitively sensitive and is 

held in strict confidence by U.S. Pipe. Exhibit A to this Motion contains the Declaration of Tom 

Morton, U.S. Pipe's Vice President, Purchasing, who is qualified to explain the highly sensitive 

and confidential nature ofthe data in these documents. Public disclosure of these documents will 

cause direct, serious harm to U.S. Pipe's business and competitive position. U.S. Pipe is 

therefore entitled to in camera treatment ofCX 1944 and CX 1945 for a period oftwo years. 

II. 	 THE STANDARD FOR IN CAMERA TREATMENT 

Applicants seeking protection for material offered into evidence are entitled to in camera 

treatment when the material's "public disclosure will likely result in a clearly defined, serious 

injury." 16 C.F.R. § 3.45(b). Applicants may meet this standard by establishing that the 

evidence is "sufficiently secret and sufficiently material to their business that disclosure would 

result in serious competitive injury." In re General Foods Corp., 95 F.T.C. 352, 355 (1980). 

Administrative courts consider six factors to determine secrecy and materiality: (1) the extent to 

which the information is known outside of the applicant's business; (2) the extent to which it is 

known by employees and others involved in the business; (3) the extent of measures taken to 

guard the secrecy of the information; (4) the value of the information to the company and its 

competitors; (5) the amount of effort or money expended in developing the information; and (6) 

the ease or difficulty with which the information could be properly acquired or duplicated by 

others. In re Bristol-Myers Co., 90 F.T.C. 455, 456 (1977). When considering these factors, 

"the courts have generally attempted to protect confidential business information from 

unnecessary airing." HP. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). Moreover, a nonparty requesting in camera treatment deserves "special solicitude" for its confidential business 

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information. In re Kaiser Aluminum & Chem. Corp., 103 F.T.C. 500 (1984) (order directing in 

camera treatment for sales statistics over five years old). 

III. 	 TWO YEARS OF IN CAMERA TREATMENT FOR CX 1944 AND CX 1945 IS 

WARRANTED 

The information contained in CX 1944 and CX 1945 is sufficiently secret and material to 

U.s. Pipe's business that its public disclosure would result in serious business and competitive 

injury to U.S. Pipe. Two years of in camera treatment for these documents is necessary to avoid 

this serious injury. 

A. 	 U.S. Pipe Has Preserved The Confidentiality Of The Information In CX 1944 

And CX 1945 

U.s. Pipe has taken substantial measures to guard the information contained in ex 1944 

and CX 1945 by limiting dissemination of such information and taking every reasonable step to 

protect its confidentiality. (Morton Decl., Ex. A at ~ 5.) The information is disclosed only to 

those U.S. Pipe employees who have a need to know the information in order to perform their 

job functions. (Id.) Detailed purchase and sales data compilations like those contained in CX 

1944 and CX 1945 are not disseminated outside of U.S. Pipe. (Id.) It would be virtually 

impossible for U.S. Pipe's competitors or others outside U.s. Pipe to access or recreate the 

information in CX 1944 and CX 1945. (Id.) These factors demonstrate that U.S. Pipe has gone 

to great lengths to preserve the confidentiality of the information contained in CX 1944 and CX 

1945. 

B. 	 The Information In CX 1944 And CX 1945 Is Sufficiently Material Such 

That Its Public Disclosure Would Result In Serious Competitive Injury To 

U.S. Pipe 

CX 1944 and ex 1945 contain recent, detailed information about u.s. Pipe's purchases 

and sales of fittings. (Id. ~~ 3, 6-9.) Their public disclosure would reveal very competitively 

valuable and sensitive information about U.s. Pipe's supply relationships, customer list, prices, 

costs and purchasing and sales strategies. (Id. ~~ 3-4, 6-9.) This disclosure would result in 

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serious injury to U.S. Pipe's competitive position in the marketplace and would threaten the 

company's relationships with its suppliers and customers. (Id) 

CX 1944 is a spreadsheet that contains U.S. Pipe fittings purchase data for 2010. (Id,-r 

6.) The document consists of detailed information about each U.S. Pipe fittings purchase, 

including supplier name, price, quantity and product description. (Id) CX 1944 reveals highly 

confidential and competitively sensitive business information about U.S. Pipe's fittings supply 

relationships and negotiated fittings purchase prices. (Id) Disclosure of this purchase data to 

U.S. Pipe's competitors would result in serious and significant competitive injury and potential 

irreparable harm. (Id) Such disclosure would provide U.S. Pipe's competitors with extensive 

information about the pricing terms of U.S. Pipe's highly confidential contractual supply 

relationships and would erode U.S. Pipe's competitiveness in the marketplace. (Id) 

Competitors could use the data to interfere with U.S. Pipe's contractual relationships with its 

fittings suppliers. (Id) Competitors might also use the data to negotiate fittings supply 

agreements with U.S. Pipe's suppliers that disadvantage U.S. Pipe. (Id) Competitors could 

further use this data, which describes an important component of U.S. Pipe's input costs, against 

U.S. Pipe when competing for sales opportunities. (Id) 

CX 1945 is a spreadsheet that contains U.S. Pipe fittings sales data for 2003 through 

2010. (Id,-r 8.) The document consists of detailed information about each U.S. Pipe fittings 

sale, including customer name, price, quantity and product description. (Id) CX 1945 reveals 

highly confidential and competitively sensitive business information of U.S. Pipe including the 

identity of U.S. Pipe's customers, the products that each customer purchased, and the prices that 

U.S. Pipe charged each customer for each product. (Id) Disclosure of this sales data to U.S. 

Pipe's competitors and customers would result in serious and significant competitive injury and 

potential irreparable harm. (Id) Such disclosure would provide U.S. Pipe's competitors with 

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extensive information about U.S. Pipe's prices, customer relationships and sales strategy and 

would erode U.S. Pipe's competitiveness in the marketplace. (Id.) Competitors could use the 

customer list and pricing information to attempt to take business from U.S. Pipe. (Id.) 

Customers could take advantage of this information about the prices that their competitors are 

paying for fittings in future negotiations with U.S. Pipe, to U.S. Pipe's detriment. (Id.) 

The public disclosure of CX 1944 and CX 1945, therefore, would result in serious 

competitive injury to U.S. Pipe. 

C. 	 The Public Interest In Disclosure Of CX 1944 And CX 1945 Is Outweighed 

By The Likelihood Of Serious Competitive Harm To U.S. Pipe 

As a non-party to this matter, U.S. Pipe deserves "special solicitude" in requesting in 

camera treatment for its confidential business information. In re Kaiser Aluminum & Chern. 

Corp., 103 F.T.C. 500 (1984) (order directing in camera treatment for sales statistics over five 

years old). In camera treatment of information for reasonable time periods encourages nonparties to cooperate with future discovery requests in adjudicative proceedings. Id. U.S. Pipe 

has cooperated extensively with the discovery demands in this matter. Conversely, "public 

understanding of this proceeding does not depend on access to" U.S. Pipe's highly confidential 

and competitively sensitive purchase and sales data, nor will the disclosure of these documents 

materially promote the resolution of this matter. Id. The balance of interests clearly favors in 

camera protection for CX 1944 and CX 1945. See In re Bristol-Myers Co., 90 F.T.C. at 456. 

D. 	 Two Years Of In Camera Treatment Is Necessary To Avoid Serious 

Competitive Injury To U.S. Pipe 

The current competitive sensitivity of the recent U.S. Pipe purchase and sales information 

contained in CX 1944 and CX 1945 warrants delaying the public release of the documents for a 

time period that allows sufficient aging so as to avoid serious competitive injury to U.S. Pipe. 

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(Morton Decl., Ex. A at,-r,-r 7, 9.) Accordingly, U.S. Pipe requests that the Court grant CX 1944 

and CX 1945 in camera treatment for the limited period oftwo years. 

IV. CONCLUSION 

Public disclosure ofCX 1944 and CX 1945 would result in a serious injury to U.S. Pipe's 

business and competitive position. The Court should grant U.S. Pipe's motion for in camera 

treatment ofthese documents for a period oftwo years.2 

Dated: July 31,2012 Respectfully submitted, 

By Abbott ~L.L..J, B. Lipsky, t4~ Jr. 

Jason D. Cruise 

Michael L. Hitsky 

LATHAM & WATKINS LLP 

555 Eleventh Street, NW, Suite 1000 

Washington, DC 20004-1304 

Telephone: (202) 637-2200 

Facsimile: (202) 637-2201 

Email: tad.lipsky@lw.com 

Attorneysfor Mueller Water Products, Inc. 

and United States Pipe and Foundry 

Company, LLC 

2 Pursuant to 16 C.F.R. § 3.45(b), in the event that the Commission intends to disclose in camera 

information of U.S. Pipe in a final decision, the undersigned counsel at Latham & Watkins LLP 

should be notified. 

6 
UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 


In the Matter of 

McW ANE, INC., DOCKET NO. 9351 

a corporation. 

[PROPOSED) ORDER 

On July 31, 2012, Non-Party United States Pipe and Foundry Company, LLC ("U.S. 

Pipe") filed a motion for in camera treatment of two documents that Complaint Counsel have 

designated for introduction into evidence in the administrative trial in this matter. The two 

documents contain recent, detailed fittings purchase and sales data of U.S. Pipe. 

IT IS HEREBY ORDERED that U.S. Pipe's motion is GRANTED. CX 1944 and CX 

1945 shall be subject to in camera treatment pursuant to 16 C.F.R. § 3.45 and shall be kept 

confidential and not placed on the public record ofthis proceeding for a period of two years. 

IT IS FURTHER ORDERED that only authorized Federal Trade Commission personnel 

and court personnel concerned with judicial review may have access to the above-referenced 

materials, provided that I, the Commission and reviewing courts may disclose such in camera 

materials to the extent necessary for the proper disposition of the proceeding. 

ORDERED this _ day of ______, 2012. 

D. Michael Chappell 

Administrative Law Judge 
PUBLIC RECORD 


Exhibit A 

UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 


In the Matter of PUBLIC 

McWANE, INC., DOCKET NO. 9351 

a corporation. 

DECLARATION OF TOM MORTON IN SUPPORT OF NON-PARTY UNITED 


STATES PIPE AND FOUNDRY COMPANY, LLC'S MOTION FOR IN CAMERA 


TREATMENT OF COMPLAINT COUNSEL PROPOSED TRIAL EXHIBITS 


I, Tom Morton, declare as follows: 

1. I am Vice President, Purchasing of United States Pipe and Foundry Company, 

LLC ("U.S. Pipe"). I have held this position since May 2005. In my position, I am responsible 

for the management of all purchasing and logistics activities for U.S. Pipe. My responsibilities 

include the management of U.S. Pipe's fittings purchases. 

2. I make this declaration in support of Non-Party United States Pipe and Foundry 

Company, LLC's Motion For In Camera Treatment Of Complaint Counsel Proposed Trial 

Exhibits. I have personal knowledge of the matters stated herein and, if called upon to do so, 

could competently testify about them. 

3. I have reviewed the U.S. Pipe documents that Federal Trade Commission 

complaint counsel have marked as CX 1944 (USP-FTC_00000025) and CX 1945 (USPFTC_00000026), which are attached to this declaration as Exhibit 1 and Exhibit 2, respectively. 

These documents consist of detailed fittings purchase and sales data ofU.S. Pipe. 
PUBLIC RECORD 

4. By virtue of my management position at U.S. Pipe and my familiarity with the 

confidentiality protections that U.S. Pipe affords to the type of information contained in CX 1944 

and CX 1945, I believe that the disclosure of these documents to the public, including U.S. 

Pipe's competitors, would cause serious business and competitive injury to U.S. Pipe. 

5. U.S. Pipe has taken substantial measures to guard the information contained in 

CX 1944 and CX 1945 by limiting dissemination of such information and taking every 

reasonable step to protect its confidentiality. The information is disclosed only to those U.S. 

Pipe employees who have a need to know the information in order to perform their job functions. 

Detailed purchase and sales data compilations like those contained in CX 1944 and CX 1945 are 

not disseminated outside of U.S. Pipe. It would be virtually impossible for U.S. Pipe's 

competitors or others outside U.S. Pipe to access or recreate the information in CX 1944 and CX 

1945. 

6. CX 1944 is a spreadsheet that contains U.S. Pipe fittings purchase data for 2010. 

The document consists of detailed information about each U.S. Pipe fittings purchase, including 

supplier name, price, quantity and product description. CX 1944 reveals highly confidential and 

competitively sensitive business information about U.S. Pipe's fittings supply relationships and 

negotiated fittings purchase prices. Disclosure of this purchase data to U.S. Pipe's competitors 

would result in serious and significant competitive injury and potential irreparable harm. Such 

disclosure would provide U.S. Pipe's competitors with extensive information about the pricing 

terms of U.S. Pipe's highly confidential contractual supply relationships and would erode U.S. 

Pipe's competitiveness in the marketplace. Competitors could use the data to interfere with U.S. 

Pipe's contractual relationships with its fittings suppliers. Competitors might also use the data to 

negotiate fittings supply agreements with U.S. Pipe's suppliers that disadvantage U.S. Pipe. 

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PUBLIC RECORD 

Competitors could further use this data, which describes an important component of U.S. Pipe's 

costs, against U.S. Pipe when competing for sales opportunities. 

7. CX 1944 contains recent data from 2010. In camera treatment of the document 

for two years is necessary to avoid serious injury to U.S. Pipe's business and competitive 

position. 

8. CX 1945 is a spreadsheet that contains U.S. Pipe fittings sales data for 2003 

through 2010. The document consists of detailed information about each U.S. Pipe fittings sale, 

including customer name, price, quantity and product description. CX 1945 reveals highly 

confidential and competitively sensitive business information of U.S. Pipe including the identity 

of U.S. Pipe's customers, the products that those customers purchased, and the prices that U.S. 

Pipe charged those customers. Disclosure of this sales data to U.S. Pipe's competitors and 

customers would result in serious and significant competitive injury and potential irreparable 

harm. Such disclosure would provide U.S. Pipe's competitors with extensive information about 

U.S. Pipe's customer relationships and sales strategy and would erode U.S. Pipe's 

competitiveness in the marketplace. Competitors could use the customer list and pricing 

information to attempt to take business from U.S. Pipe. Customers could take advantage of this 

information about the prices that their competitors are paying for fittings in future negotiations 

with U.S. Pipe. 

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PUBLIC RECORD 

9. ex 1945 contains recent data fi'om 20 IO. In camera treatment of the document 

for two years is necessary to avoid serious injury to U.S. Pipe's business and competitive 

position. 

1declare under penalty ofpcljury that the foregoing is true and correct. 

Executed this '3?11Iday ofJuly, 2012. 

4 
PUBLIC RECORD 


Exhibit 1 

PUBLIC RECORD 


[Redacted from Public Version] 

PUBLIC RECORD 


Exhibit 2 

PUBLIC RECORD 


[Redacted from Public Version] 

UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 


In the Matter of 

PUBLIC 

McWANE, INC., 

a corporation. DOCKET NO. 9351 

PROOF OF SERVICE OF PUBLIC FILING AND CERTIFICATION 

I, Michael L. Hitsky, hereby certify that on this 31 st day ofJuly, 2012, I caused a copy of 

the documents listed below to be served by hand on each ofthe following: The Office ofthe 

Secretary of the Federal Trade Commission (original and two copies) and the Honorable D. 

Michael Chappell (two copies), 

and by electronic mail to the Honorable D. Michael Chappell (oalj@ftc.gov); Thomas H. 

Brock (tbrock@ftc.gov); Edward Hassi (ehassi@ftc.gov); Linda Holleran (lholleran@ftc.gov); J. 

Alexander Ansaldo Ciansaldo@ftc.gov); Andrew K. Mann (amann@ftc.gov); Jeanine Balbach 

Cibalbach@ftc.gov); Michael J. Bloom(mjbloom@ftc.gov); Geoffrey Green (ggreen@ftc.gov); 

Joseph A. Ostoyich (joseph.ostoyich@bakerbotts.com); Andreas Stargard 

(andreas.stargard@bakerbotts.com); William Lavery (william.lavery@bakerbotts.com); Alan 

Truitt (atruitt@maynardcooper.com); Thomas Thagard III.(tthagard@maynardcooper.com); 

Gregory Huffinan (Gregory.Huffinan@tklaw.com); William Katz (William.Katz@tklaw.com); 

Nicole Williams (Nicole.Williams@tklaw.com); and Brian Stoltz (Brian.Stoltz@tklaw.com): 

(1) Non-Party U.S. Pipe & Foundry Company, LLC's Motion for In Camera Treatment 

ofComplaint Counsel Proposed Trial Exhibits; 

(2) [Proposed] Order; 

(3) Exhibit A -	 Declaration ofTom Morton In Support ofNon-Party U.S. Pipe & 

Foundry Company, LLC's Motion for In Camera Treatment ofComplaint Counsel 

Proposed Trial Exhibits; 

(4) Exhibit 1 - CX 1944 (USP-FTC_00000025) [Redacted from Public Version]; 

(5) Exhibit 2 - CX 1945 (USP-FTC_00000026) [Redacted from Public Version]; and 

(6) This Proofof Service. 
I also certify that on this 31st day ofJuly, 2012, I caused to be served one copy via 

Federal Express ofthe foregoing documents upon: 

Edward Hassi 

U.S. Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Thomas W. Thagard III 

Maynard Cooper & Gale, P.C: 

1901 Sixth Avenue North 

2400 Regions/Harbert Tower 

Birmingham, AL 35203 

July 31,2012 By: 4UJt~ Michael L. Hltsk 


LATHAM & WATKINS LLP 


555 Eleventh Street NW, Suite 1000 


Washington D.C., 20009 


Tel: (202) 637-2200 


michael.hitsky@lw.com 


Attorneyfor Mueller Water Products, Inc. 

and u.s. Pipe & Foundry Company, LLC