UNITED STATES OF AMERICA
 

FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

In the Matter of 

Polypore International, Inc. 

a corporation. 

) 

) 

) 

) 

) 

Docket No. 9327 

PUBLIC DOCUMENT 

) 

MEMORADUM OF JOHNSON CONTROLS. INC. IN SUPPORT OF ITS 

MOTION FOR IN CAMERA TREATMENT PURSUANT TO FTC RULE 3.45 

Non-party Johnson Controls, Inc. ("JCI") submits this Memorandum in support of 

its motion for in camera treatment for a number of 
 the JCI documents and excerpts of deposition 

transcripts designated by the parties as exhibits for the upcoming hearing. As explained more 

fully below, these documents are entitled to in camera treatment pursuant to FTC Rule 3.45 

because they contain confidential business strategy and data so that public disclosure of this 

information would result in serious competitive injury to JCI and to its separator suppliers. JCI 

also requests that any hearing testimony concerning these documents and any designations of 

deposition testimony also be heard on an in camera basis.! The FTC staffhas indicated that it 

does not oppose in camera treatment of these documents and counsel for Polypore has indicated 

that it takes no position on this motion. 

BACKGROUND 

JCI is one of the world's leading manufacturers of batteries for use in 

automobiles, sometimes referred to as SLI (Staring, Lighting, Ignition) batteries. JCI also 

manufactures deep cycle or golf cart batteries for use on golf carts or other pieces of equipment. 

1 Based upon the Court's April 
 8, 2009 Order Granting Joint Motion to Revise the 

Scheduling Order, JCI reserves the right to seek in camera treatment for any designated JCI 

witness deposition testimony if such deposition testimony is offered into evidence. 
Battery separators are a necessary component both for automotive/SLI batteries and for golf 

cartdeep cycle batteries, but a different type of separator is used in each function so that, for 

example, an automotive separator canot be used on a golf cart battery and vice versa. In 2008, 

JCI purchased separators for automotive/SLI batteries from Polypore (Daramic), Entek 

International ("Entek") and BFR. 

REDACTED
 

2
 
On March 27, JCI received notice from the FTC staff that the staff 
 intended to

introduce up to 29 JCI documents at the hearing in this matter. In addition, Polypore's counsel 

provided a list that contained over 200 possible excerpts of deposition testimony and more than 

125 documents (some of which were combinations of more than one document from the 

production).2 

In order to address JCI's need for in camera treatment without describing each 

individual document for which JCI is seeking in camera treatment, this Memorandum describes 

general categories of documents for which JCI seeks in camera treatment. More details on the 

specific documents are found in the supporting declaration of Mr. Flavio Almeida and 

accompanying exhibit filed in support of JCI's motion for in camera treatment. In addition, JCI 

is providing to the Administrative Law Judge and the paries a CD with copies of the documents 

for which it seeks in camera treatment. 

2 As noted above, JCI also believes that many of 
 the deposition excerpts should be 

received only on an in camera basis, but we understand that consideration of that issue wil occur 

after Polypore sends an updated notice as to the specific designations that it wil use. 

3 
LEGAL STANDARD
 

Rule 3.45 provides that material shall be "placed in camera only after finding that 

its public disclosure would likely result in a clearly defined, serious injury to the person, 

parnership, or corporation requesting in camera treatment." 16 C.F.R. 3.45(b). A serious injury 

can be established by showing that the information at issue is "sufficiently secret and sufficiently 

material to the applicant's business that disclosure would result in serious competitive injur." In
 

re General Foods Corp., 95 F.T.C. 352,355 (1980). The Commission considers the following 

factors when determining if 
 the information at issue should be granted in camera treatment: (1) 

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

which the information is known by employees and others involved in the applicant's business; 

measures taken by the applicant to guard the secrecy of 
 the information; (4) the 

value ofthe information to the applicant and its competitors; (5) the amount of effort or money 

expended by the applicant in developing the information; and (6) the ease or difficulty with 

which the information could be properly acquired or duplicated by others." The Commission has 

(3) the extent of 


held that "(t)he loss of 
 business advantage is a good example of a 'clearly defined, serious 

injury.'" Hoechst Marion Roussel, Inc. 2000 F.T.C. LEXIS at *6 (quoting General Foods, 95 

F.T.C. at 355). 

Where, as here, the request for in camera treatment is made by a nonparty, such 

request should be given "special solicitude." See In re Crown Cork & Seal Co., 71 F.T.C. 1714 

(1967) ("(P)etitioner's plea warrants special solicitude coming as it does from a third-pary 

bystander in no way involved in the proceedings whose records, if in camera treatment is denied, 

wil be open to the scrutiny of 
 its competitors."); Kaiser Aluminum & Chemical Corp., 103 

F.T.C. 500 (1984) (requests for in camera treatment by third parties should be given special 

4
 
solicitude because, as a matter of policy, such treatment encourages the third pary to cooperate 

with futue adjudicative discovery requests).
 

CATEGORIES OF DOCUMENTS 

REDACTED
 

5 
REDACTED
 

6
 
REDACTED
 

7
 
REDACTED
 

Finally, as a nonpary who has cooperated with the discovery requests made by 

Polypore in this matter, JCI's request for in camera treatment deserves "special solicitude" by 

this Court. See Kaiser Aluminum & Chem. Corp., 103 F.T.C. 500. As aforementioned, the 

disclosure ofthis highly confidential and proprietary information undoubtedly wil cause serious 

competitive injury to JCI. Yet, the disclosure of this information wil not materially promote the 

8 
resolution of 
 this matter, nor wil the public disclosure ofthis information materially assist the 

public's understanding ofthe issues in this matter. 

IN CAMERA TREATMENT OF THIS INFORMATION SHOULD EXTEND FOR AT A 

MINIMUM A SEVEN (7) YEAR PERIOD. 

It is well established that reasonable periods of in camera treatment encourage 

nonparies to cooperate with futue discovery requests in adjudicative proceedings. In the Matter 

Kaiser Aluminum & Chem. Corp., 103 F.T.C. 500, 5000 (1984). JCI's request that in camera 

treatment for this information be maintained indefinitely, or at a minimum for a period of seven 

of 

(7) years, ( 

REDACTED
 

9
 
CONCLUSION 

For the reasons set forth above, as further supported by the declaration submitted 

with this Memorandum, JCI respectfully requests that the documents be handled on an in camera 

basis and that any opinions, reports or decisions issued for public dissemination have the JCI 

confidential information redacted. 

Dated: April 8, 2009 Respectfully submitted, 

d~¿~~' Laura S. Kwaterski 

Counsel for Johnson Controls, Inc. 

FOLEY & LARDNER LLP 

777 E. Wisconsin Avenue 

Milwaukee, WI 53202 

414-297-5530 

414-297-4900 (fax) 

jmckeown~foley.com 

10
 
PUBLIC - EXHIBIT A
 

IN SUPPORT OF NON-PARTY JCI'S MOTION FOR IN CAMERA TREATMENT
 

FTC EXHIBIT LIST 

PX0672 (Redacted) X X X
 

PX1501 (Redacted) X X
 

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MILW_8562189.2 
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X X 

X
 

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2
 

MILW_8562189.2 
PUBLIC - POL YPORE EXHIBIT LIST
 

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MILW_8562841.2 
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2
 

MILW_8562841.2
 
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3
 

MILW_8562841.2
 
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4
 

MILW_8562841.2 
UNITED STATES OF AMERICA 

FEDERA TRAE COMMISSION
 

OFFICE OF ADMINISTRATIV LAW JUGES 

In the Matter of 

) 

) 

Polypore Interational, Inc., ) 

) 

Docket No. 9327 

a corporation. ) 

) 

CERTIFICATE OF SERVICE 

I hereby cerfy that on April 8, 2009, I caused to be sered via Overght Courer 

a tre copy of the foregoing Memorandum in Support of 
 Non-Pary Johnson Controls, Inc.'s 

Motion for In Camera Treatment (Public) in the followig maner: 

I am famliar with the offce practice of Foley & Lardner LLP for collectig and 

processing documents for overght mail deliver by overght courer or other express serce
 

carer. Under that practice, documents are deposited with the Foley & Lardner LLP personnel
 

responsible for depositing documents in a post offce, mailbox, subpost offce, substation, mail 

chute, or other like facilty regularly maintaied for receipt of overght mail by overght 

courer or other express serice carer; such documents are delivered for overght mail deliver 

by overnight courer or other express serce carer on that same day in the ordinar course of 

business, with deliver fees thereon fully prepaid and/or provided for. I caused to be deposited
 

in Foley & Lardner LLP's interoffce mail sealed envelopes or packages containg the 

above-descrbed documents and addressed as set fort below in accordance with the offce 

practices of Foley & Lardner LLP for collectig and processing documents for overght mail 

deliver by overght courer or other express serce carer:
 

The Honorable D. Michael Chappell Steven A. Dah 

Admstrative Law Judge Federal Trade Commission 

Federal Trade Commssion 601 New Jersey Avenue, NW 

600 Pensylvana Avenue, NW Washigton, D.C. 20001-2018 

Washington, D.C. 20580-0002 (1 copy) 

(1 copy) 

Eric D. Welsh J. Rober Roberson 

Wiliam L. Riard, Jr. Federal Trade Commssion 

Parker Poe Adams & Bernstein LLP 600 Pensylvana Avenue, NW 

401 South Tryon Street Washington, D.C. 20580-0002 

Charlotte NC 28202 

(1 copy) 

a;~¿l~
 r .
ra . K waterski
 

MILW_8563008.1 
UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

)

In the Matter of ) 

) Docket No. 9327 

Polypore International, Inc., )


a corporation. ) PUBLIC DOCUMENT
 

) 

DECLARTION OF FLA VIO ALMEIDA 

Flavio Almeida hereby declares as follows: 

1. I am currently employed by Johnson Controls, Inc. ("JCI") as the Director
 

of Procurement, Americas in JCI's Power Solutions Group. I make this Declaration in 

connection with Non-Party Johnson Controls, Inc.'s Motion for In Camera Treatment of Certain 

Hearing Exhibits Designated by Complaint Counsel and Polypore International, Inc. I make this 

Declaration based upon my own personal knowledge, my conversations with other JCI 

executives, and my review ofthe issues pertinent to this request for in camera treatment. To the 

extent that I was not previously familiar with a document, I reviewed the confidentiality issues 

and need for in camera treatment with other high-ranking employees in the Purchasing 

Deparment and Legal Deparent for the Power Solutions Group. 

2. JCI produced various documents pursuant to a subpoena duces tecum
 

issued at the request of Polyp ore International, Inc. ("Polypore") in this matter. Polypore's 

subpoena sought documents related to JCI's strategic plans, our costs and pricing, our research 

and development efforts, our supply contracts and other information that JCI considers 

confidentiaL. Almost all of the documents JCI produced in this matter were designated either 

"Confidential" or "Highly Confidential" pursuant to the Protective Order entered in the above­
captioned matter on October 23,2008 and the stipulated amendment to the Protective Order 

entered on January 15, 2009. 

3. JCI is one of the world's leading manufacturers of batteries for use in 

automobiles, sometimes referred to as SLI (Staring, Lighting, Ignition) batteries. JCI also 

manufactures deep cycle or golf cart batteries for use on golf carts or other pieces of equipment. 

Battery separators are a necessary component both for automotive/SLI batteries and for golf 

car/deep cycle batteries, but a different type of separator is used in each function so that, for 

example, an automotive separator canot be used on a golf cart battery and vice versa. 

REDACTED
 

2
 
6. I am familiar with the type of information contained in the documents for 

which JCI seeks in camera treatment. I am also generally familiar with the confidentiality 

protection afforded this tye of information by JCI. Based upon my review of 
 these documents, 

my knowledge of JCI's business, my discussions with other JCI executives, and my familarty 

with the confidentiality protection that JCI affords information of this type, it is my belief that 

the public disclosure of many of the documents identified by the FTC and Polypore or the 

information contained in them would cause serious competitive injury to JCI. 

FTC EXHIBIT LIST 

7. On March 27,2009, JCI received notice from Complaint Counsel that the 

FTC intends to introduce 29 documents produced by JCI in this matter at the hearing beginning 

May 12, 2009. 

REDACTED
 

3 
REDACTED
 

4
 
REDACTED
 

13. Only a small number of relatively high level executives at JCI are privy to 

the information in these strategy documents. This information constitutes a highly confidential 

executive level strategy, and I would not discuss it outside this limited group within JCI. The 

vast majority of these documents are conspicuously labeled as "Confidential and Proprietary 

Information." JCI has taken and continues to take precautions to safeguard the highy 

confidential nature of its 

REDACTED
 

5 
These documents were produced as "Highly Confidential Material" pursuant to 

the Protective Order in this matter because these documents contain trade secrets of a technical 

and economic nature. In fact, JCI insisted that the Protective Order be amended so that Michael 

Schor, an attorney for Polypore on the JCI contract negotiations, could not review these 

documents. 

REDACTED
 

6
 
REDACTED 

16. Only a small number of 
 high level executives at JCI are privy to this 

information. JCI has taken and continues to take precautions to safeguard the ( 

REDACTED 

7
 
REDACTED
 

8
 
19. Only a small number of 
 high level executives at JCI are privy to this 

information. JCI has taken and continues to take precautions to safeguard the highly confidential 

nature of this information. 

REDACTED
 

POL YPORE EXHIBIT LIST 

20. On March 31, 2009, JCI received notice from counsel for Polypore that it 

intends to introduce over 125 documents produced by JCI in this matter at the hearing beginning 

May 12, 2009. 

REDACTED
 

9
 
REDACTED
 

10
 
REDACTED 

24. Only a small number of 
 high level executives at JCI are privy to this 

information. JCI has taken and continues to take precautions to safeguard 

REDACTED 

11 
I declare under penalty of perur under the laws of the United States of Amerca 

that the foregoing is tre and correct.
 

Executed ths -. day of April, 2009. 

¡l~ 

14
 
UNITED STATES OF AMERICA 

FEDERA TRAE COMMISSION
 

OFFICE OF ADMINISTRATIV LAW JUGES 

)


In the Matter of
 )
 

) Docket No. 9327
 

Polypore Interational, Inc.,
 )
 

a corporation.
 ) 

) 

CERTIFICATE OF SERVICE 

I hereby cerify that on April 8,2009, I caused to be sered via Overght Courer 

a tre copy of the foregoing Declaration ofFlavio Almeida in Support of Non-Par Johnson
 

Controls, Inc.'s Motion for In Camera Treatment Pusuant to FTC Rule 3.45 (Public) in the 

following maner: 

I am famliar with the offce practice of Foley & Lardner LLP for collectig and 

processing documents for overght mail deliver by overght courer or other express serce
 

carer. Under that practice, documents are deposited with the Foley & Lardner LLP personnel
 

responsible for depositing documents in a post offce, mailbox, subpost offce, substation, mail 

chute, or other like facilty regularly maintained for receipt of overght mail by overght 

courer or other express serce carer; such documents are delivered for overght mail delivery
 

by overnght courer or other express serice carer on that same day in the ordinar course of
 

business, with delivery fees thereon fully prepaid and/or provided for. I caused to be deposited 

in Foley & Lardner LLP's interoffce mail sealed envelopes or packages contaig the 

above-descrbed documents and addressed as set fort below in accordance with the offce 

practices of 
 Foley & Lardner LLP for collectig and processing documents for overght mail 

deliver by overght courer or other express serce carer:
 

The Honorable D. Michael Chappell Steven A. Dah 

Adminstrative Law Judge Federal Trade Commssion 

Federal Trade Commssion 601 New Jerey Avenue, NW 

600 Pennsylvana Avenue, NW Washigton, D.C. 20001-2018 

Washington, D.C. 20580-0002 (1 copy) 

(1 copy) 

Eric D. Welsh J. Rober Roberson 

Wiliam L. Riard, Jr. Federal Trade Commssion 

Parker Poe Adams & Berstein LLP 600 Pensylvana Avenue, NW 

401 South Tryon Street Washigton, D.C. 20580-0002

Charlotte NC 28202 ¿¡)
 (1 copy) ~ ¿1~' a . Kwaterski
 

MILW_8563008.1 
UNITED STATES OF AMERICA
 

FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

In the Matter of 

) 

) 

) Docket No. 9327 

Polypore International, Inc., ) 

a corporation. ) PUBLIC DOCUMENT 

) 

PROPOSED ORDER 

AND NOW, this _ day of ,2009, upon consideration of NonPary Johnson Controls, Inc.'s Motion for In Camera Treatment Pursuant to FTC Rule 3.45, it is 

hereby ORDERED that Non-Pary Johnson Controls, Inc.'s Motion is GRANTED and the 

exhibits listed on Exhibit A to Non-Pary Johnson Controls, Inc.'s Motion shall receive in 

camera treatment indefinitely. 

IT IS SO ORDERED. 

Dated this _ day of ,2009. 

D. Michael Chappell 

Administrative Law Judge 

MILW_8562921.1 
UNITED STATES OF AMERICA 

FEDERAL TRAE COMMISSION 

OFFICE OF ADMINISTRATIV LAW JUDGES 

In the Matter of 

Polypore Interational, Inc., 

a corporation. 

) 

) 

) 

) 

) 

Docket No. 9327 

) 

CERTIFICATE OF SERVICE 

I hereby cerfy that on April 8, 2009, I caused to be sered via Overght Courer 

a tre copy of the foregoing Proposed Order Granting Motion for In Camera Treatment Pusuant 

to FTC Rule 3.45 in the following maner: 

I am famliar with the offce practice of 
 Foley & Lardner LLP for collectig and 

processing documents for overght mail deliver by overght courer or other express serce
 

carer. Under that practice, documents are deposited with the Foley & Lardner LLP personnel
 

responsible for depositing documents in a post offce, maiibox, subpost offce, substation, mail 

chute, or other like facilty reguarly maintained for receipt of overght mail by overght 

courer or other express serce carer; such documents are delivered for overght mail delivery
 

by overnght courer or other express serce carer on that same day in the ordinar course of 

business, with deliver fees thereon fully prepaid and/or provided for. I caused to be deposited
 

in Foley & Lardner LLP's interoffce mail sealed envelopes or packages containg the 

above-descrbed documents and addressed as set fort below in accordance with the offce 

practices of 
 Foley & Lardner LLP for collecting and processing documents for overght mail 

deliver by overght courer or other express serce carer:
 

The Honorable D. Michael Chappell StevenA.Dah 

Administrative Law Judge Federal Trade Commission 

Federal Trade Commission 601 New Jersey Avenue, NW 

600 Pensylvana Avenue, NW Washigton, D.C. 20001-2018
 

Washington, D.C. 20580-0002 (1 copy)
 

(1 copy)
 

Eric D. Welsh J. Rober Roberson 

Wiliam L. Rikard, Jr. Federal Trade Commssion 

Parker Poe Adams & Bernstein LLP 600 Pensylvana Avenue, NW 

401 South Tryon Street Washington, D.C. 20580-0002 

Charlotte NC 28202 

(1 copy) 

dJ A
 ~.~.Ula . Kwaterski 

MILW_8563008.1