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UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

Before the Honorable D. Michael Chappell

Administrative Law Judge

__________________________________________

)

In the Matter of )

)

CHICAGO BRIDGE & IRON COMPANY N.V. )

)

a foreign corporation, )

) Docket No. 9300

CHICAGO BRIDGE & IRON COMPANY )

) Public Document

a corporation, )

)

and )

)

PITT-DES MOINES, INC. a corporation )

__________________________________________)

MOTION FOR IN CAMERA TREATMENT OF TRIAL TESTIMONY

OF DAVID KAMRATH

On behalf of third party witness David Kamrath, and his employer Air Liquide 

Process and Construction, Inc. (“ALPC”), we respectfully request that the Court accord 

in camera treatment to specific portions of Mr. Kamrath’s testimony, which is expected 

to occur on November 21, 2002. This motion sets forth the nature of the specific 

testimony for which in camera treatment is requested, and the clearly defined, serious 

injury that would result should such testimony be placed on the public record. 

Counsel for the Commission has indicated that it intends to question Mr. Kamrath 

on matters related to a specific, field erected LIN/LOX tank project (the “Freeport 

Project”). The Freeport Project was discussed briefly in Mr. Kamrath’s deposition, taken 

on June 27, 2002, but ALPC had not, as of that date, awarded the project to a specific 
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supplier. Kamrath Deposition, p. 21, lines 2-18. Complaint counsel, however, has 

advised Mr. Kamrath and his counsel that they intend to question Mr. Kamrath at trial on 

events subsequent to June 27, 2002, including: (a) specific prices quoted by each bidder 

on the project in question; (b) Air Liquide’s reasons for selecting the specific bidder 

ultimately chosen for the project, and (c) Air Liquide’s experience with the contractor for 

the project to date, which project is on-going. These specific areas of inquiry will require 

Mr. Kamrath to disclose project-specific pricing information with respect to a current 

project. Further, Mr. Kamrath’s testimony will provide specific information about the 

competitive performance and capabilities of one supplier, which (a) if known to that 

supplier’s competitors, likely would provide such competitors with significant 

competitive advantage and (b) if known by the supplier, could be used by that supplier in 

its on-going relationship with ALPC on the Freeport Project. Finally, Commission 

counsel intends to elicit from Mr. Kamrath statements related to Air Liquide’s 

competitive strategies for procuring field erected LIN/LOX tanks in the future, 

information that Air Liquide maintains in the utmost confidence within its organization. 

Declaration of Mark Richard ¶ 6. 

Under Section 3.45(b) of the Commission’s Rules, the standard for granting in 

camera treatment requires a finding that public disclosure “will likely result in a clearly 

defined, serious injury to the person, partnership or corporation requesting in camera

treatment.” Further, the determination of “clearly defined, serious injury” is to be made 

on the basis of the standards articulated in H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 

(1961), and Bristol-Myers Co., 90 F.T.C. 455,456 (1977), as modified by General Foods 

Corp., 95 F.T.C. 352, 355 (1980). 
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In H.P.Hood &Sons, the Commission noted that the required showing of injury 

“may consist of extrinsic evidence or, in certain instances, may be inferred from the 

nature of the documents themselves.” 58 F.T.C. at 1188. In this case, the injury is 

documented in the attached Declaration of Mark Richard,1 and may also be inferred from 

the nature of the anticipated testimony. The essence of complaint counsel’s case is that 

the acquisition of Pitt-Des Moines by Chicago Bridge & Iron has reduced competition for 

field erected LIN/LOX tanks, among other products. Mr. Kamrath’s expected testimony 

concerning the specific prices bid by CB&I, as well as by the three other bidders for 

ALPC’s Freeport Project, would provide CB&I with vital information that would 

adversely affect ALPC’s competitive position in procuring such tanks in the future. 

Richard Declaration, ¶¶ 6 & 8. Equally sensitive is Mr. Kamrath’s expected testimony 

with respect to the Freeport project itself, and the current contractor’s performance there. 

Neither the current contractor, nor CB&I, nor any other present or prospective contractor 

of field erected LIN/LOX tanks should have access to current project performance, or to 

ALPC’s views on contractors that ALPC would consider for future projects – both 

subjects that complaint counsel has indicated to Mr. Kamrath that it intends to pursue. 

As a consequence, CB&I counsel may be expected to pursue such subjects on crossexamination, and both parties can be expected to address such testimony in post-trial 

briefs.

Bristol-Myers Co. makes it clear that part of movant’s burden is to show that the 

information is secret and material to the applicant’s business. Using the factors set forth 

in the Restatement of Torts, as the Commission did in Bristol-Myers Co., we note the 

 

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 Mr. Kamrath, who would be the logical person to provide the supporting declaration, is currently traveling 

on business outside the United States, and is unavailable at this time. 
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following: (a) the information that Mr. Kamrath would provide is not known outside of 

ALPC’s business; (b) even within ALPC, the information is known only to Mr. Kamrath 

and Mr. Richard, and to Julie Heil, Project Manager; David Powell, Mechanical 

Engineer; Marc Ragouilliaux, Subsystems Manager and Jeff Lambert, Construction 

Manager (c) all such persons are under strict instructions not to disclose any of the 

information in question to any additional persons, whether inside or outside the company; 

and (d) the information could not be acquired by, and certainly not duplicated by, others 

except upon breaching the confidentiality obligations established within ALPC. Richard 

Declaration ¶¶3-7. Further, we note that the information relates to current and future 

competitive activity, and therefore is of the utmost value at this time. Cf. General Foods 

Corp. 95 F.T.C. at 354 (most of General Foods’ information was more than three years 

old). 

Finally, the general public policy in favor of disclosure of information in these 

proceedings must be weighed against the policy of the antitrust laws not to allow 

competitors to use the process to acquire present and future information that has the 

potential to substantially affect competition in their industry. See, e.g., U.S. v. United 

States Gypsum Co., 438 U.S. 422, 443 (1969) (“Exchanges of current price information, 

of course, have the greatest potential for generating anticompetitive effects and although 

not per se unlawful have consistently been held to violate the Sherman Act.”). Mr. 

Kamrath has testified in his deposition that competitive bidding is important to ALPC to 

obtain fair pricing for field erected LIN/LOX tanks. See, e.g., Deposition of David 

Kamrath, Page 70, lines 20-25; Page 71, lines 1-20. Public disclosure of Mr. Kamrath’s 

testimony would seriously undermine ALPC’s bargaining position with such vendors in 
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the future, to the detriment of ALPC. Richard Declaration ¶¶ 8-9. Further, neither Mr. 

Kamrath nor ALPC would be willing to provide information of this sensitive nature in 

future proceedings, except pursuant to in camera treatment. 

For the foregoing reasons, we respectfully request that the Court issue an order, in 

the form attached, granting in camera treatment as follows: 

(1) Material subject to in camera treatment: Trial testimony of David 

Kamrath related to Air Liquide Process & Construction’s award of the 

Freeport Project field erected LIN/LOX tank, its subsequent 

experiences with the contractor, and its future procurement strategies; 

(2) Reasons for in camera treatment: Such information is not now 

publicly known, is material to ALPC’s business, is of substantial value 

in light of its age, cannot be duplicated or discovered by third parties, 

and the public disclosure of such information would jeopardize the 

Commission’s ability to obtain important, truthful and candid 

statements from witnesses in future proceedings; 

(3) Duration of in camera treatment: Five (5) years from the date of 

testimony. This period is reasonable, considering the early phase of 

the Freeport Project, its expected duration, and the low level of current 

and near term future projects for field erected LIN/LOX tanks, which 

will produce only a few competitive bid opportunities over the five (5) 

year period. Richard Declaration ¶9. 
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Copies of this motion, and of the proposed order, were furnished to Steven 

Wilensky, counsel for the Commission, and to Jeffrey Leon, counsel for Chicago Bridge 

& Iron, and on November 11, 2002, each indicated its consent to the filing of this motion, 

and to the relief requested in the proposed order. 

Respectfully submitted, 

Robert A. Lipstein (D.C. Bar #253724)

Counsel for David Kamrath, Chief 

Executive Officer, Air Liquide Process & 

Construction, Inc. 

Lipstein, Jaffe & Lawson L.L.P.

1900 M Street, NW #700

Washington, DC. 20036

Phone (202) 296-6655

Fax (202) 296-0848

Email: Rlipstein@ljllaw.com

November 13, 2002
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Certificate of Service

I, Robert A. Lipstein, hereby certify that a copy of the foregoing Motion for In Camera 

Treatment was served this 13th day of November, 2002, as follows: 

By Hand Delivery: 

The Honorable D. Michael Chappell

Office of Administrative Law Judges

Federal Trade Commission

600 Pennsylvania Avenue, N.W., Suite 104

Washington, D.C. 20580

Rhett R. Krulla, Esq. 

Steven Wilensky, Esq. 

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Room NJ-6126

Washington, D.C. 20580

By Facsimile:

Jeffrey A. Leon, Esq. 

Duane M. Kelley, Esq. 

Winston & Strawn

35 W. Wacker Drive

Chicago, Illinois 60601-9703

_________________________________

Robert A. Lipstein