ORIGINAL 

UNTED STATES OF AMRICA
 

BEFORE THE FEDERA TRAE COMMSSION
 

) In the Matter of )
 

) Docket No. 9327
 

Polypore International, Inc.
 ) a corporation. ) PUBLIC

) 

NON-PARTY ENERSYS' SUPPLEMENTAL MOTION 

FOR fl CAMRA TREATMENT
 

OF CERTAI DESIGNATED HEARG EXHITS 

Non-Par EnerSys ("EnerSys") respectfuly moves for in camera treatment of 

cert additional hearg exhbits that the Federal Trade Commssion ("FTC") recently
 

designated for possible introduction in the adminstrative hearg in ths matter, scheduled to 

commence on May 12,2009.1 Specifically, on May 5, 2009, the FTC gave EnerSys formal 

notice that it had added six EnerSys documents ("Subject Documents") to its exhbit list. The 

Subject Documents had been previously provided to the FTC2 with the understading that they 

would be treated as "CONFIDENTIA" in accordance with the terms ofthe Protective Order 

entered by the Cour on October 23, 2008. The Subject Documents contain highy confdential 

and proprieta inormation that is both secret and material to EnerSys' present and futue 

business, public disclosure of which would hfU EnerSys. 

As a result, EnerSys respectfuly requests that the Admstrative Law Judge enter 

an Order pursuat to Rule 3.45(b) of 
 the Federal Trade Commssion Rules of 
 Practice, 16 C.F.R. 

i By this motion, EnerSys respectflly seeks to supplement its pnor motion for in camera treatment, fied Apnl9,
 

2009. EnerSys did not include in that motion the documents at issue herein because the FTC had not yet 

designated them for possible introduction in the admstrative heang in this matter. 

2 Because the Subject Documents are communications between EnerSys and Respondent or their respective 

counel, Respondent was already in possession of 
 them at the time that EnerSys provided them to the FTC. As a 

result, EnerSys does not seek to shield disclosure of 
 these documents from Respondent. 

1 

811 913586vl/0084.00930 
§ 3.45(b), granting in camera treatment for no less than five (5) years, to the Subject Documents, 

which are listed in Exhbit 1 attched to ths Motion and the proposed Order. 

In support of ths Motion, EnerSys respectfully refers the Cour to the 

accompanying Declaration of Lar Burkert, Exhbit 2 hereto, and Memorandum of Law. 

Dated: May 7, 2009 STEVENS & LEE, P.C. 

By 1rA~Y dr.ß~A/
 

Neil C. Schur 

Eugene V. Lipkowitz 

1818 Market Street, 29th Floor 

Philadelphia, Pennsylvana 19103 

(215) 751-1944 

ncsc(gstevenslee.com 

evl(gstevenslee.com 

2 

S11 913586vl/00844.00930 
EXHIBIT 1
 
Exhibits for Which EnerSvs ReQuests In Camera Treatment In Its SUDDlemental Motion 

Exhibit Exhibit Title 

Number 

PX2259 Letter to Daramc from Schur re 

Proposed Daramc Price Increases 

PX2260 Letter to Schur from Bryson re 

EnerSys Supply Contracts 

PX2261 Letter to Bryson from Schur re 

Proposed Daramc Price Increases 

PX2262 Letter to Lewis from Shor re 

EnerSys Supply Contracts 

PX2263 Letter to Bryson from Schur re 

Proposed Price Increases 

PX2264 Letter to Schur from Bryson re 

EnerSys Supply Contracts 

Date BEGDOC ENDDOC 

2/10/2009 

2/19/2009 

2/20/2009 

4/2/2009 

4/6/2009 

4/13/2009 

1 

S11 914535vl/0084.00930 
EXHIBIT 2
 
........_.:..,.............~...."....--..............~,,-,-:.--.;:...-.-:.-..:.,,,..,~,..:_,.-:...~.~#--..~.--_.-_._--~------~_..:._.._--.....
 .. . . ".", ~'L 

DECLARTION OF LARY RURRT 

COMM:ONWEALTH OF PENNSYLVANIA 

COUNTY OF BERK 

I, Lar Burkert, being duly sworn, depose and make the followig statement:
 

1. I am presently employed as a Senior Procurement Maager ofEnerSys. .
 

2. I respectfly submit ths Afdavit in support ofEnerSys' Supplemental
 

Motion for In Camera Treaent of Certai Designated Hearng Exhibits and Deposition
 

Testimony. 

3. The inormation contaed in the documents listed in Exbit 1 to the 

Motion ("Subject Documents") is secret, coinmercially sensitive, and material to EnerSys' 

curent and prospective business.
 

4. Each ofthe Subject Documents has been maintained iiterally by EnerSys
 

in a confdential maner, only being shared with those iidividuaIs requiring knowledge of the 

inormation contaiied withn the document. ' 

~. The information in the Subject Documents was not:m available to
 

EnerSys' competitors or other outside persons other th Respondent 

6. The Subject Documents contai commercially proprietay and confdential
 

inormation regarding EnerSys' pricin and contract negotiations. 

7. This inormation is held in strct confdence by EnerSys.
 

1 

SLI 913586vl/008444.00930
 
........~......................_.:..__..;-....:~.....;~...__._------~...... . .... .. ................~-_.._.............._,...~.,........-................_..--....."........ .
 

8. Whle the Subject Documents do not contain cost or price terms, they are 

extemely recent and analyze, reveal and sometimes even quote the terms of contracts to which 

the Cour ha granted in camera treatment. 

9. If 
 the inormation contained in the Subject Documnts were publicly 

disclosed, EnerSys would sufer serious competitive injur because its competitors and suppliers 

could use ths non-public inormation to their advantage and nulfy the competitive advantages 

gained by EnerSys. 

10. EnerSys' request that in camera treatment for the Subject Documents be
 

maintaned for five years is reasonable in light of the commercial reaities of the commercial 

battery industr. 

i i. Contacts tyically continue in force for a number of years and are often
 

renegotiated and renewed with substati iicorporation of the term of preceding contracts. 

12. Under these circumstaces, it is Ulcertin as to when the documents wi
 

no longer reflect curent pricing and contract terms, or product development and supplier 

strategy and planning. 

13. Moreover, the market is such that even disclosure of terms of contracts no 

longer in force create an uneasonable an unnecessar risk of competitive har to EnerSys 

such that in camera treatment should extend for a period of at leas five years, a reasonable 

estimate of the mium lengt of tie for the contracts at issue to expire and their tenu to
 

become outdated and irelevant. 

2 

SLJ 9J3586vU00844.00930 
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjur tht the foregoing
 

is tre and correct.
 

EXECUTED ths 7 da of 
 May, 2009.

LARY BURKERT
 -;~


J 

3 

SLI 913586vll0084.00930 
CERTIFICATE OF SERVICE 

I hereby certify that on May 7, 2009, I filed via overnght courer and electronic mail 

delivery an original and two copies of 
 the foregoing Non-Par EnerSys' Supplementa Motion 

for In Camera Treatment of Certin Designated Hearg Exhbits and proposed Order with:
 

Donald S. Clark, Secreta 

Offce of the Secreta 

Federal Trade Commssion 

600 Pennsylvana Avenue, NW, Rm. H-135 

Washigton, DC 20580
 

secretar(gftc.gov 

I hereby certify that on May 7,2009, I delivered via overnght courer and electronic mail 

delivery two copies of 
 the foregoing Non-Par EnerSys' Supplementa Motion for In Camera 

Treatment of Cert Designated Hearg Exhbits and proposed Order to: 

The Honorable D. Michael Chappell 

Admstrative Law Judge
 

Federal Trade Commssion 

600 Pennsylvana Avenue, NW 

Washigton, DC 20580
 

oalj(gftc.gov 

I hereby certify that on May 7, 2009, I served via overnght courer and electronic mail 

delivery a copy of 
 the foregoing Non-Par EnerSys' Supplementa Motion for In Camera 

Treatment of Cert Designated Hearg Exhbits and proposed Order on:
 

Eric D. Welsh, Esquie 

Parker Poe Adams & Berntein, LLP 

Thee Wachovia Center 

401 S. Tryon Street, Suite 3000 

Charlotte, NC 28202 

ericwelsh(gparkerpoe.com 

Steven A. Dah, Esquire 

Federal Trade Commssion 

Bureau of Competition 

Mergers II Division 

601 New Jersey Avenue, NW 

Washigton, D.C. 20001
 

sda(gftc.gov

Date: May 7,2009 

Neil C. Schur 

,1u/~

S11 913586vl/00844.00930 
UNTED STATES OF AMRICA
 

BEFORE THE FEDERA TRAE COMMSSION
 

) In the Matter of )
 

) Docket No. 9327
 

Polypore International, Inc.
 ) a corporatin. ) PUBLIC

) 

NON-PARTY ENERSYS' MEMORAUM OF LAW
 

IN SUPPORT OF
 

SUPPLEMENTAL MOTION FORfl CAMERA TREATMENT 

OF CERTAI DESIGNATED HEARG EXHITS 

I. Introduction
 

Non-Par EnerSys ("EnerSys") respectfuly submits ths Memorandum of 
 Law in 

support of its supplemental motion for in camera treatment of six hearg exhbits that the
 

Federal Trade Commssion ("FTC") recently designated for possible introduction in the 

admstrative hearg in ths matter, scheduled to commence on May 12,2009. Specifically, on
 

May 5, 2009, the FTC gave EnerSys formal notice that it had added six EnerSys documents 

("Subject Documents") to its exhbit list. 

A listing and description ofthe Subject Documents for which EnerSys seeks in 

camera treatment is attched to EnerSys' Motion and the proposed Order submitted herewith as
 

Exhbit 1. (The documents themselves are submitted in a separate version of Exhbit 1 to the 

Cour only for in camera review). The Subject Documents were provided to the FTC with the
 

understading that they would be treated as "CONFIDENTIA" under the October 23, 2008 

Protective Order entered by the Cour. The inormation contaed in the Subject Documents is 

secret, commercially sensitive, and material to EnerSys' curent and prospective business. 

1 

SLl 913586vl/0084.00930 
As a result, EnerSys respectfully requests that the Admnistrative Law Judge enter 

an Order pursuat to Rule 3.45(b) of the Federal Trade Commssion Rules of 
 Practice, 16 C.F.R. 

§ 3.45(b), granting in camera treatment for no less than five (5) years, to the Subject Documents 

listed in Exhbit 1 attched to EnerSys' Motion and the proposed Order submitted herewith. 

II. Standard for In Camera Treatment 

EnerSys incorporates by reference the stadard for in camera treatment set fort
 

in its memorandum of law filed April 9, 2009, as if set fort in full herein. 

III. The Subject Documents Meet the Standard for In Camera Treatment 

Each of 
 the Subject Documents has been maintained internally by EnerSys in a 

confdential maner, only being shared with those individuas requig knowledge of the 

inormation contaed with the document. Of course, because the Subject Documents listed in 

Exhbit 1 are communcations with Respondent, EnerSys does not request that they be shielded 

from Respondent, but from public disclosure, including to EnerSys' competitors and other 

suppliers. The inormation was not made available to EnerSys' competitors or other outside 

persons other than Respondent. As such, the Subject Documents were provided to the FTC with 

the understading that they would be treated as "CONFIDENTIA" in accordance with the 

terms of 
 the Protective Order. 

EnerSys respectfly submits that in camera treatment is waranted for the 

Subject Documents because (1) EnerSys will sufer serious competitive har if 
 the Subject 

Documents are disclosed to the public; (2) the inormation contaed in the Subject Documents is 

secret; and (3) the risk of har is not outweighed by the importce of 
 the inormation to the 

matter decided by the Commssion. 

As set fort in the Declaration of Lar Burkert, attched to EnerSys' Motion as 

Exhbit 2, the Subject Documents conta commercially proprieta and confdential inormation 

2 

SLl 913586vll00844.00930 
regarding EnerSys' contract and price negotiations with Respondent. Whle the Subject 

Documents do not contan cost or price terms, they are extremely recent and analyze, reveal and 

sometimes even quote the terms of contracts to which the Cour has granted in camera 

treatment. 1 Moreover, they reveal price negotiations between EnerSys and Respondent and the 

curent status of those negotiations. All of ths information is held in strct confdence by 

EnerSys. If such inormation were publicly disclosed, EnerSys would sufer serious competitive 

injur because its competitors and other suppliers could use ths non-public inormation to their
 

advantage and nullity the competitive advantages gaied by EnerSys. In addition, EnerSys is a 

publicly traded company, and the public disclosure of ths confdential non-public inormation 

may improperly and unecessarly infuence both stock prices and investor confdence, causing 

fuher har to EnerSys.
 

Moreover, as a non-par seekig in camera treatment for its confdential business 

inormation, EnerSys' request should be treated with "special solicitude." In the Matter of 

Kaiser Aluminum & Chemical Corporation, 103 F.T.C. 500 (1984) (order directing in camera 

treatment for sales statistics over five years old). Reasonable periods of in camera treatment 

encourage non-paries to cooperate with futue discovery requests in adjudicative proceedings. 

Id At great expense, EnerSys has cooperated with the discovery demands of both paries to this 

case, producing tens of thousands of pages of documents and four witnesses for deposition (two 

of whom were also separately examed under oath in connection with the FTC's investigation 

ofthe facts of 
 ths matter). The Subject Documents have been made available for use by the 

FTC and Respondent in accordance with the terms of the Protective Order. 

i See Order on Non-Pares' Motions for In Camera Treatment, dated May 6,2009.
 

3 

811 913586vl/00844.00930 
Disclosing the Subject Documents containg EnerSys' highly confdential 

business inormation now will not materially promote the resolution of ths matter, nor will these
 

documents lend measurable public understading of these proceedigs. The balance of interests 

clearly favors in camera treatment for the Subject Documents. See In the Matter of Bristol 

Meyers Co., 90 F.T.C. 455, 456 (1977). 

IV. In Camera Treatment of the Documents Should Extend For a Five-Year Period 

EnerSys' request that in camera treatment for the Subject Documents be 

maintaed for five (5) years is reasonable in light of the commercial realities of the commercial 

battery industr. 

Contracts tyically continue in force for a number of years and are often
 

renegotiated and renewed with substatial incorporation of the terms of preceding contracts. 

Product development, and strategies for suppliers, procurement and pricing strategies are often 

simlarly long-term in natue in this industr. Under these circumstaces, it is uncert as to 

when the documents will no longer reflect curent pricing and contract terms. Moreover, the 

market is such that even disclosure of terms of contracts no longer in force creates an 

uneasonable and unecessar risk of competitive har to EnerSys such that in camera treatment 

should extend for a period of five (5) years, a reasonable estimate of the minium lengt of time 

for the contracts at issue to expire and their terms to become outdated and irelevant. 

v. Conclusion
 

Disclosure of the Subject Documents would result in a clearly defied serious 

injur to EnerSys. Accordingly, for the reasons set fort above and in the Declaration of Lar 

Burkert, Exhbit 2 to EnerSys' Motion, EnerSys respectfuly requests that this Cour grant its 

motion directing in camera treatment for the Subject Documents. 

4 

S11 913586vll00844.00930 
Dated: May 7, 2009 STEVENS & LEE, P .C. 

By rÍ /~


Neil C. Schur 

Eugene V. Lipkowitz 

1818 Market Street, 29th Floor 

Philadelphia, Pennsylvana 19103 

(215) 751-1944 

ncsc(gstevenslee.com
 

evl(gstevenslee.com
 

5 

811 913586vl/00844.00930 
ORIGINAL
 

UNTED STATES OF AMRICA
 

BEFORE THE FEDERA TRAE COMMSSION
 

) In the Matter of ) 

) Docket No. 9327 

Polypore International, Inc. )
 a corporation.
 ) 

) 

ORDER 

Upon consideration of the supplemental motion of EnerSys for in camera 

treatment of cert designated hearg exhbits, it is hereby ordered that the Motion is 

GRATED, and the documents identified on Exhbit 1 ofEnerSys' Motion, which is attched 

hereto, shall be aforded in camera treatment pursuat to Rule 3.45(b) ofthe Federal Trade 

Commssion Rules of Practice, 16 C.F.R. § 3.45(b) for five (5) years from the date of ths Order.
 

ENTER: 

Dated: May _, 2009 

Admstrative Law Judge D. Michael Chappell
 

S11 913586vl/00844.00930 
Exhibits for Which EnerSvs ReQuests In Camera Treatment In Its SUDDlemental Motion 

Exhibit Exhibit Title 

Number 

PX2259 Letter to Daramc from Schur re 

Proposed Daramc Price Increases 

PX2260 Letter to Schur from Bryson re 

EnerSys Supply Contracts 

PX2261 Letter to Bryson from Schur re 

Proposed Daramc Price Increases 

PX2262 Letter to Lewis from Shor re 

EnerSys Supply Contracts 

PX2263 Letter to Bryson from Schur re 

Proposed Price Increases 

PX2264 Letter to Schur from Bryson re 

EnerSys Supply Contracts 

Date BEGDOC ENDDOC 

2/1 0/2009 

2/19/2009 

2/20/2009 

4/2/2009 

4/6/2009 

4/13/2009 

1 

S11 914535vl/0084.00930