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FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUGES
 

) 

In the Matter of ) 

) 

POL YPORE INTERNATIONAL, INC., ) Docket No. 9327 

Respondent. ) 

) 

ORDER GRANTING COMPLAINT COUNSEL'S MOTION FOR 

CERTIFICATION TO THE COMMISSION FOR COURT ENFORCEMENT 

I. 

On January 23,2009, Complaint Counsel filed a Motion for Certification to the 

Commission for Court Enforcement of a subpoena in order for Complaint Counsel to conduct a 

deposition of Nippon Sheet Glass ("NSG") in Japan. On January 28,2009, Complaint Counsel 

filed a Supplemental Statement of CounseL. By email to the Office of Administrative Law 

Judges, dated January 29,2009, Respondent indicated that it does not oppose Complaint 

Counsel's motion. For the reasons set forth below, Complaint Counsel's motion for certification 

is GRANTED. 

II. 

Pursuant to Commission Rule 3.38(c), Complaint Counsel moves for certification to the 

Commission to seek an order from a United States federal court authorizing the taking of a 

voluntary deposition ofNSG in Japan. Complaint Counsel states that the FTC Act allows only 

the Commission to bring this requested enforcement action before a United States federal court. 

15 U.S.C. §§ 9-10 (2008). 

Complaint Counsel represents that, on January 21,2009, it served NSG, a Japanese 

company with businesses in North America, with a Rule 3.33(c) subpoena asking NSG to 

designate one or more persons to testify about, among other things, any present or future plans 

NSG has to supply battery separators to customers located in North America. Complaint 

Counsel further represents that, on January 22,2009, NSG's General Counsel responded to the 

Federal Trade Commission's subpoena by stating that the person most knowledgeable about the 

matter on which examination is requested is in Japan, and that its corporate representative is 

available to appear voluntarly to answer questions in Japan on February 27,2009. 
Complaint Counsel states that the United States - Japan Bilateral Consular Convention 

permits the taking of a deposition in Japan of a wiling witness for use in a United States court 

proceeding provided that a United States federal court authorizes the taking of such voluntary 

deposition. Complaint Counsel further states that under the United States - Japan Bilateral 

Consular Convention and the All Writs Act, once the Commission authorizes enforcement of the 

subpoena from a United States federal court, the Commission's General Counsel wil be able to 

ask a federal court to authorize a consul or vice-consul of the United States to take a voluntary

deposition ofNSG's representative in Japan. Complaint Counsel also states that agreed upon

interpretations of 
 the United States - Japan Bilateral Consular Convention and Japanese law and 

practice permit the taking of a deposition of a wiling witness for use in a court in the United 

States only: 

1) if the deposition is presided over by a U.S. consular officer; 

2) if the deposition is conducted on U.S. consular premises; 

3) if the deposition is taken pursuant to an American court order or 

commission; and 

4) if any non-Japanese paricipant traveling to Japan applies for and obtains a
 

Japanese Special Deposition visa. 

Complaint Counsel asserts that, in order for Complaint Counsel to satisfy the above listed third 

and fourth steps, Complaint Counsel's Motion for Certification to the Commission for Court 

Enforcement ofNSG's Rule 3.33 subpoena must be granted. 

III. 

The Complaint in this action charges that Polypore's acquisition of 
 Microporous and 

other conduct by Polypore substantially lessens competition in numerous ways in the alleged 

product area of separators for flooded lead-acid batteries in the deep-cycle, motive, automotive, 

and uninterrptible power supply stationary markets. Complaint irir 5,38. The Complaint further 

alleges that there are significant barers to entry into these markets. ¡d. irir 32-37. According to 

Complaint Counsel, NSG has information on NSG's present or future plans to supply battery 

separators to customers located in North America. Thus, the information sought is relevant to 

the Complaint's allegations or to the Respondent's defenses. 

Rule 3.38(c) ofthe Commission's Rules of Practice states that "in instances where a 

nonpary fails to comply with a subpoena or order, (the ALJ) shall certify to the Commission a 

request that court enforcement ofthe subpoena or order be sought." 16 C.F.R. § 3.38(c). It is 

apparent that an Administrative Law Judge of the Federal Trade Commission does not have 

authority to compel a witness in Japan to comply with a 3.33(c) subpoena. Based upon NSG's 

failure to comply with the subpoena served on it in the United States and based upon Complaint 

its subpoena, this 

motion is hereby certified. 

Counsel's request for certification to the Commission for court enforcement of 


2
 
Numerous procedures must be followed for the requested deposition to be conducted in 

Japan. This certification is made with the recommendation that the Commission facilitate those 

procedures. This recommendation is based on the relevance of the information sought, the 

limited nature of the discovery sought, and the representations of Complaint CounseL. 

. iv. 

For the above stated reasons, it is hereby ORDERED that Complaint Counsel's motion 

is CERTIFIED to the Commission with the recommendation that the Commission facilitate the 

procedures necessary to conduct a voluntary deposition ofNSG's corporate representative in 

Japan. 

ORDERED: 2b~~ 

D. Michael Cha ell 

Administrative Law Judge 

Date: January 29,2009 

3