ORIGINAL
 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRAE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

RESPONDENT'S MOTION TO EXCLUDE USE OF PX0803 

BY COMPLAINT COUNSEL 

Pursuant to the Federal Trade Commission Rules of Practice, Respondent Polypore
 

International, Inc. ("Polypore"), by and through counsel, submits this Motion to Exclude Use of 

PX0803 by Complaint Counsel. 

ARGUMENT 

The Federal Trade Commission Rules of Practice provide that "(i)rrelevant, immaterial, 

and uneliable evidence" shall be excluded from adjudicative proceedings. 16 C.F.R. § 3. 43 (b). 

Although hearsay may be admitted, it must be relevant, material, and bear satisfactory indicia of 

reliabilty so that its use is fair. ¡d.
 

Complaint Counsel argues that PX0803 is admissible under two legal theories. First, 

Complaint Counsel argues that PX0803 is admissible as an admission by a party-opponent 

pursuant to Rule 801(d)(2)(D) of the Federal Rules of Evidence. Specifically, Complaint 

Counsel argues that Mr. Randy Hanschu, a salesperson, made an admission binding on Polypore 

when he stated that "(i)t is sure getting difficult to convince our customers that we are not a 

monopoly." (PX0803.) 

Rule 801(d)(2)(D) of the Federal Rules of Evidence defines as nonhearsay a statement 

offered against a party that is "a statement by the pary's agent or servant concerning a matter 

within the scope of the agency or employment, made during the existence of the relationship." 

FED. R. EVID. 801 
 (d)(2)(D). In order to introduce evidence of an out-of-cour statement as
 
nonhearsay under Rule 801 
 (d)(2)(D), a party must lay a suffcient foundation by establishing
 

"(l) the existence of the agency relationship, (2) that the statement was made during the course 

of the relationship, and (3) that it relates to a matter within the scope of the agency." Pappas v. 

Middle Earth Condominium Ass 'n, 963 F.2d 534, 537 (2d. Cir. 1992). Complaint Counsel has 

not and cannot show that Mr. Hanschu's off-hand comment was made within the scope of his 

employment at Polypore. 

Complaint Counsel has attempted to portray Mr. Hanschu as a key sales manager within 

the Polypore corporate hierarchy, but this characterization is simply misleading. Despite holding 

the title of Senior Technical Sales Manager, Mr. Hanschu is considered an entry-level 

salesperson at Polypore and he does not even supervise a single Polypore employee. (Affidavit 

of Randy A. Hanschu ("Hanschu Aff."), ir 2.) Polypore salespeople are simply referred to as 

"sales managers" for customer relations puroses. (Hanschu Aff., ir 2.) 

That issue aside, "the position of the individual in the so-called corporate hierarchy is not 

in and of itself determinative of an 801(d)(2)(D) type of issue." Wilkinson v. Carnival Cruise 

Lines, Inc., 920 F.2d 1560, 1565 (l1th Cir. 1991). The appropriate focus is instead upon whether 

the employee's statement concerned a matter within the scope of 
 his agency or employment. Id.; 

see also Hil v. Spiegel, Inc., 708 F.2d 233,237 (6th Cir. 1983) ("The mere fact that each of these 

men was a 'manager' within the expansive Spiegel organization is clearly insufficient to 

establish that matters bearing upon (plaintiff s) discharge were within the scope of their 

employment"). 

Mr. Hanschu's statement was clearly not made within the scope of 
 his employment. As a 

matter of law, a legal "opinion or conclusion of an agent ... is not binding upon his principal 

unless the latter has authorized his agent to form and express an opinion on his behalf." Fidelity 

& Casualty Co. v. Haines, 111 F. 337, 338 (8th Cir. 1901). Mr. Hanschu's job is to interface 

with approximately ten Polypore customers. (Hanschu Aff., ir 3.) But he is not a lawyer; he does 
not have legal training or expertise; he does not have the authority to enter into contracts on 

behalf of Polypore; and he does not have the authority to make legal statements or decisions on 

behalf of Polyp ore. (Hanschu Aff., ir 2.) Therefore, his statement cannot constitute an admission 

by Polypore. See Strauch v. United States, 637 F.2d 477 (statement by postal inspector that 

Postal Service appeared to be liable for plaintiffs injuries did not constitute an admission); 

Haines, 111 F. 337 (statement by insurance agent did not constitute an admission of the 

insurance company because he was not authorized to make such statements on behalf of the 

company). 

Second, Complaint Counsel argues that Mr. Hanschu's statement is admissible pursuant 

to the Lennox presumption found in 16 CF.R. § 3.43(d)(3). But even this presumption does not 

give Complaint Counsel carte blanche to introduce irrelevant, immaterial, and unreliable 

evidence. See 16 CF.R. § 3.43(b). Mr. Hanschu's statement is precisely the type of unreliable 

"evidence" that 16 CF.R. § 3.43(b) is designed to exclude. In addition to making a bald legal 

conclusion outside of the scope of his authority, Mr. Hanschu admitted that his statement was 

false. (Hanschu Aff., ir 4.) He stated that "(n)o customer has ever informed me that they
 

considered Polypore a monopoly; I have never attempted to convince a customer that Polypore 

was not a monopoly; and I am not aware of any other Polypore salesperson attempting to 

convince a customer that Polypore was not a monopoiy."i (Hanschu Aff., ir 4.) He fuher stated
 

that he does not even know the legal definition of the term "monopoly," but he does not believe 

that Polypore is a monopoly as that term is commonly used. (Hanschu Aff., ir 4.) Mr. Hanschu 

admitted this off-hand statement was made "in a moment of frstration while dealing with a 

customer service issue." See generally, Staheli v. University of Mississippi, 854 F.2d 121, 127 

1 See generally, Oki America, Inc. v. Microtech Int'!, 872 F.2d 312, 314 (9th Cir. 1988) (employee 

statement does not constitute an admission by the company when employee admits that he did not have any factual 

basis for the alleged statement). 
(1988) ("statement did not concern a matter within the scope of his agency and was made in his 

capacity as wiseacre only"). 

Polypore submits that Complaint Counsel knows this statement is uneliable and has 

crafted his litigation strategy to avoid dealing with this issue. Complaint Counsel has not even 

attempted to depose Mr. Hanschu or compel his appearance at triaL. But Complaint Counsel has 

deposed Mr. Hanschu's former supervisor, Wiliam Keith, who was a recipient of Mr. Hanschu's 

e-mail inPX0803.(SeePX0803.)ComplaintCounseldidnotaskMr.Keith a single question 

about Mr. Hanschu's alleged admission. This was not a simple oversight. The rationale is 

simple: facts and context would prevent Complaint Counsel from parading this e-mail in front of 

the Court. PX0803 is precisely the type of irrelevant, immaterial, and uneliable "evidence" that 

16 CF.R. § 3.43(b) is designed to exclude and therefore it should not be admitted by this Cour. 

CONCLUSION 

For the foregoing reasons, Polypore respectfully requests that its Motion to Exclude Use 

of PX0803 be granted. 
Dated: June 11, 2009 Respectfully submitted, 

ew 

Wiliam L. Rikard, Jr. 

Eric D. Welsh 

PARKR POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

wiliamrikard~parkerpoe.com 

ericwelsh~parkerpoe.com 

John F. Graybeal 

PARKR POE ADAMS & BERNSTEIN, LLP 

150 Fayettevile Street
 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

iohngraybeal~parkerpoe.com 

Attorneys for Respondent 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRAE COMMISSION 

In the Matter of ) 

) Docket No. 9327 

)

Polypore International, Inc. )

a corporation ) PUBLIC DOCUMENT 

) 

PROPOSED ORDER 

Upon consideration of Respondent's Motion to Exclude Use of PX0803 by Complaint 

Counsel, any opposition thereto, any hearing thereon, and the entire record in this proceeding, 

IT is HEREBY ORDERED, that Respondent's Motion is GRANTED. 

IT is FURTHER ORDERED, that the document identified as PX0803 shall not be 

admitted into evidence in this proceeding. 

D. Michael Chappell 

Administrative Law Judge 

Date: 
CERTIFICATE OF SERVICE 

I hereby certify that on June 11, 2009, I caused to be filed via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Respondent's Motion to 

Exclude Use of PX0803 by Complaint Counsel, 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, NW, Rm. H-135 

Washington, DC 20580 

secretary~ftc.gov 

I hereby certify that on June 11,2009, I caused to be served one copy via electronic mail 

delivery and two copies via hand delivery of 
 the foregoing Respondent's Motion to Exclude Use 

of PX0803 by Complaint Counsel upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oali~ftc.gov 

I hereby certify that on June 11, 2009, I caused to be served via hand delivery and 

electronic mail delivery a copy of the foregoing Respondent's Motion to Exclude Use of 

PX0803 by Complaint Counsel upon: 

J. Robert Robertson, Esq. Steven Dahm, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rro bertson~ftc. gov sdahm~ftc.gov 

,0~ w4­

Brian R. Weyhrich 

Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9534 

Facsimile: (704) 335-9776 

PPAB 1573908vl 
UNITED STATES OF AMERICA 

BEFORE THE FEDERA TRAE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

AFFIDAVIT OF RADY A. HASCHU 

Randy A. Hanschu, being duly sworn, deposes and says: 

1. I am a Senior Technical Sales Manager for Daramic, LLC, a subsidiary of
 

Polypore International, Inc. (collectively "Polypore"). I have personal knowledge of the matters 

set forth herein, except as to those matters stated herein to be alleged upon information and 

belief, and as to those matters, I believe them to be true. I respectfully submit this affdavit in 

support of 
 Respondent's Motion in Limine To Exclude Use OfPX0803 By Complaint Counsel. 

2. Despite the tite, the position of Senior Technical Sales Manager is considered an
 

entry level sales position at Polypore. Polypore salespeople are commonly referred to as "sales 

managers" for customer relations purposes. I do not supervise any Polypore employees; I do not 

have the authority to enter into contracts on behalf of Polypore; I do not have the authority to 

make legal statements or decisions on behalf of Polypore; and I have no legal training or 

expertise. 

3. My job responsibilties include interfacing with approximately ten Polypore 

customers located in the United States and Canada. I do not communicate with other Polypore 

customers. 

4. I authored the June 24, 2008 e-mail contained within PX0803, wherein I stated
 

that "(i)t is sure getting difficult to convince our customer that we are not a monopoly." 

PPAB 1573830vl 
(PX0803.) That was an inaccurate statement. No customer has ever informed me that they 

considered Polypore a monopoly. I do not know the legal definition of 
 the term "monopoly," but 

I do not believe that Polypore is a monopoly as that term is commonly used. 

5. I made this off-hand statement in a moment of frstration while dealing with a 

customer service issue. I did not intend for this statement to be taken seriously, and if I had been 

deposed or called to testify by Complaint Counsel, I would have corrected and clarified this 

misstatement. 

PPAB 1573830vl 
""
 

q , , '


Thi' ' '. d' "J "0"'"
 . :s' ~,".~y'øfunla, 2.09.

....' 

--- ----~~---"---~_.~--_.".-- -- ...- ---_.- -..-- ----------_._~.---""---_. '" . ~...;

PPAB 1$7JT78yj