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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter or ) Docket No. 9327 

) 

) PUBLIC 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) 

) 

) 

EXIDE TECHNOLOGIES' MOTION FOR LEAVE TO FILE A REPLY BRIEF 

IN SUPPORT OF ITS MOTION TO MODIFY THE PROTECTIVE ORDER 

Pursuant to Rule 3.22 of the Rules of Practice for Adjudicative Proceedings, 

Exide Technologies respectfully moves for leave to fie the attached two page reply brief 

in support of its motion to modify the Protective Order. In support of this motion for 

leave to file, Exide states as follows: 

1. Respondent's opposition to Exide's motion relies heavily upon a 

"Confidential" letter to Complaint Counsel from Polypore Special Counsel Michael Shor. 

Respondent's Response To Exide Technologies' Motion To Modify The Protective 

letter was not available to Exide when Exide filed its 

motion. Exide's reply brief explains why this newly-disclosed letter provides additional 

support for Exide's motion to modify the Protective Order and why it does not support 

Respondent's opposition to that motion. 

Order, Exhibit A. This confidential 


2. Respondent's opposition accuses Exide of filing its motion for purposes of 

harassment. Exide should be permitted a reply to respond to this baseless and 

unsupported accusation. 

-----..-----­ 

 ---I 
3. Exide's motion concerns an imminent threat to the integrity of the
 

Commission's processes and a risk of substantial commercial harm to Exide. 

Dated: October 26, 2009 Respectfully submitted, 

Donald J. Russell 

W~J~

ROBBINS, RUSSELL, ENGLERT, ORSECK, 

UNTEREINER & SAUBER LLP 

1S01 K Street, N.W., Suite 411L 

Washington, D.C. 20006 

Telephone: (202) 775-4500 

Facsimile: (202) 775-4510 

dru ssell (Wro bb insrusse Ii. co m 

Counsel for Exide Technologies 

2 

- .. .. ..-­
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of ) Docket No. 9327 

) 

) PUBLIC 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) 

) 

) 

EXIDE TECHNOLOGIES' REPLY BRIEF IN SUPPORT OF 

MOTION TO MODIFY THE PROTECTIVE ORDER 

Respondent's opposition ("Opposition") to Exide's Technologies' Motion To 

Modify The Protective Order ("Motion") fails to respond at all to Exide's central point: 

that persons who have had access to confidential information about Exide's strategies for 

negotiating a contract with Daramic (and with Daramic's competitor) should not 

participate in Daramic's ongoing contract negotiations with Exide, or advise those who 

are conducting those negotiations. The Commission should not permit its processes to be 

invoked by Daramic to demand production of confidential information from Exide, then 

allow Daramic to use that information for its own commercial advantage. The use of 

confidential information in commercial negotiations, not merely the "disclosure" of that 

information, is improper. 

The Opposition does not deny that Parker Poe or Michael Shor have participated 

II or advised Daramic in its negotiations with Exide. Respondent cannot deny that 

Mr. Shor has done so, because his letter to Exide (Motion, Exhibit 1) clearly constitutes 

such participation, in direct contravention of his representations to the Commission (see 

------_., 
Motion at 3) and to Complaint Counsel (see Opposition, Exhibit A at 1).1 And whatever 

Mr. Shor and Parker Poe may have done in the past, they make no representation in the 

Opposition that they wil refrain from participating in or advising on negotiations in the 

future. Respondent does not even concede that such activity would be improper. 

To the limited extent that the Opposition addresses the merits,2 it focuses entirely 

on whether Mr. Shor has seen Exide confidential information in the past. But the 

Opposition relies on Mr. Shor's letter to Complaint Counsel in which he stated (in May 

2009) that in the future, he wil "continue to have access to the designated (hearing)
 

exhibits of the remaining Permitted Parties" - which are defined in the letter to include 

Exide. Moreover, there can be no dispute that Parker Poe has had, and wil continue to 

have, complete access to confidential Exide information. 

In short, the Opposition makes clear that (1) Parker Poe has complete access, and 

Mr. Shor believes he is entitled to have access, to Exide's confidential information, (2) 

Parker Poe and Mr. Shor have advised or participated, or may in the future advise or 

participate, in Daramic's contract negotiations with Exide, and (3) Parker Poe's and 

Mr. Shor's position is that such conduct is entirely proper and permissible. Under these 

circumstances, modification of the Protective Order is needed to prevent Respondent's 

misuse of confidential information for commercial advantage and to protect the integrity 

of the Commission's processes. 

i The Opposition describes this letter as a discussion of "Darainic's obligations under the existing contract 

with Ex 
 ide" but, as the letter makes clear, Mr. Shor and Daramic were proposing to address those 

obligations under a new contract. Respondent's assertion that Mr. Shor's letter did not disclose any 

confidential information obtained from Exide is entirely irrelevant; what matters is that the letter clearly 

evidences Mr. Shor's involvement in ongoing contract negotiations. 2 The Opposition (at 3) implies that the Motion was fied for the purpose of "harassment" and suggests, 

without explanation, that the timing of the motion two weeks before a hearing was suspicious. There is no 

harassment here. Exide's concerns about the misuse of confidential information were greatly increased 

when it became apparent that its ongoing negotiations with Daramic would be a central focus of the reopened hearing, and that Daramic would seek additional discovery by deposition of up-to-the-minute 

confidential information, simultaneously with a critical period in the ongoing contract negotiations. 

2
 
CONCLUSION
 

Exide's motion to modify the Protective Order should be granted.
 

Dated: October 26, 2009 ;;m~ 

Donald J. Russell 

ROBBINS, RUSSELL, ENGLERT, ORSECK, 

UNTEREINER & SAUBER LLP 

1801 K Street, N.W., Suite 411L 

Washington, D.C. 20006 

Telephone: (202) 775-4500
 

Facsimile: (202) 775-4510
 

drussell((ùrobbinsrussell.com
 

Counsel for Exide Technologies 

3 

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CERTIFICATE OF SERVICE 

I hereby certify that on October 26,2009, I caused to be filed via hand delivery 

and electronic mail delivery an original and two copies of the foregoing Exide 

Technologies' Motion For Leave To File A Reply Brief In Support Of Its Motion To 

Modify The Protective Order and Reply Brief In Support Of Motion To Modify The 

Protective Order, and that the electronic copy is a true and correct copy of the paper 

original and that a paper copy with an original signature is being filed with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W., Rm H-135 

Washington, D.C. 20580 

sccrctaryCWftc. gov 

I hereby certify that on October 26,2009, I caused to be served one copy via 

electronic mail delivery and two copies via hand delivery of the foregoing Exide 

Technologies' Motion For Leave To File A Reply BriefIn Support OfIts Motion To 

Modify The Protective Order and Reply Brief In Support Of Motion To Modify The 

Protective Order upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission
 

600 Pennsylvania Avenue, N.W.
 

Washington, D.C. 20580 

oal j CWftc. gov 

I hereby certify that on October 26, 2009, I caused to be served by first class mail 

delivery and electronic mail delivery a copy of the foregoing Exide Technologies' 

Motion For Leave To File A Reply Brief In Support Of Its Motion To Modify The 

Protective Order and Reply Brief In Support Of Motion To Modify The Protective Order 

upon: 

Wiliam L. Rikard, Jr. J. Robert Robertson 

Eric D. Welsh Steven Dahm 

Three Wachovia Center Federal Trade Commission 

401 South Tryon Street, Suite 600 Pennsylvania Avenue, N.W. 

3000 Washington, D.C. 20580 

Charlotte, N.C. 28202 rrobertsonCWftc.gov 

williamrikardCWparkerpoe.com sdahm âJ' . ov 

ericwel shCWparkerpoe.com