The following published opinion was released by the U.S. Court of Appeals for the Fifth Circuit on July 2, 2008:

• Chicago Bridge & Iron Co. v. Federal Trade Commission (Reavley, Garza, Dennis, JJ.; opinion by Dennis, J.) (on granting petition for panel rehearing and withdrawing original panel opinion). Denying petition for review of FTC order for Chicago Bridge & Iron to divest assets acquired from Pitt-Des Moines Inc., namely assets used in the design and field construction of cryogenic storage tanks, on the basis that the acquisition would tend to create a monopoly. The Fifth Circuit affirmed the FTC’s “flexible approach” to the burden-shifting framework, recognizing the need to “accommodate the practical difficulties in separating the burden to persuade and the burdens to produce. The flexible approach allows the Commission to preserve the prima facie presumption if the respondent, CB&I, fails to satisfy the burden of production in light of contrary evidence in the prima facie case.” Slip op. at 11. The Court also held that the FTC applied the proper analysis for evaluating future entry into the market, “conclud[ing] that if supracompetitive pricing existed, the new entrants would be insufficient to counteract it.” Slip op. at 15. The Court also found that the FTC presented substantial evidence that high barriers to future market entry would continue to exist, sufficient to counteract CB&I’s “bald assertions” that structural changes in the market would make for a more competitive future market. The Court then concluded that the FTC’s finding that future competitors must be able to enter the market “on par” or in “parity” with CB&I was not an incorrect legal standard, but only required that barriers to entry not be such that a new competitor be unable to act within the market “on an equal footing” with CB&I. Examining the evidence in the record, the Court found that all of the FTC’s findings were based on substantial evidence. Finally, the Court found that the divestiture remedy was neither overbroad nor punitive.