OR\G\NAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: 

In the Matter of 

Jon Leibowitz, Chairman 

Julie Brill 

William E. Kovacic 

Edith Ramirez 

J. Thomas Rosch 

) 

) 

) 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

) 

) 

--------------------------) 

Docket No. 9327 

PUBLIC DOCUMENT 

RESPONDENT'S THIRD MOTION 

TO REOPEN THE HEARING RECORD 

Pursuant to 16 C.F.R. § 3.54(a) and 16 C.F.R. § 3.51(e), Respondent, Polypore 

International, Inc. ("Polypore") submits this motion to reopen the record to permit (1) limited 

discovery of Entek, Johnson Controls, Inc. ("JCI") and Superior Battery ("Superior"), two 

customers of Daramic and { 

}l, through narrowly-tailored document subpoenas and depositions on the subjects 

presented in Respondent's Brief in Support of its Third Motion to Reopen the Hearing Record; 

and (2) a hearing before the Commission on this matter to permit evidence to be introduced. In 

support of this motion to reopen the hearing record, Polypore incorporates herein its arguments 

set forth in its Respondent's Brief in Support of its Third Motion to Reopen the Hearing Record, 

and the Affidavits of Robert B. Toth, S. Tucker Roe, Randy A. Hanschu, Steve McDonald. 

1 The instant motion and supporting affidavits contain In Camera Material pursuant to the Initial Decision of AU 

Chappell dated February 22,2010. Respondent has designated such In Camera Material with" { }" to indicate the in camera 

status of such evidence and to protect such In Camera Material from disclosure on the public record. 
For the reasons set forth in and based upon Respondent's Brief in Support of its Third 

Motion to Reopen the Hearing Record, and the Affidavits of Robert B. Toth, S. Tucker Roe, 

Randy A. Hanschu, Steve McDonald, Polypore respectfully requests that this Commission issue 

an Order opening the hearing record to permit (1) limited discovery of Entek, JCI and Superior, 

and any other customer or third party that may be identified through nal1'0wly-tailored document 

subpoenas and depositions on subjects presented in Respondent's Brief in Support of its Third 

Motion to Reopen the Hearing Record; and (2) a hearing before the Commission on this matter 

to permit evidence to be introduced, and for such further relief as the Commission finds 

appropriate. 

2 
Dated: July 8, 2010 Respectfully Submitted, 

r:;;~.V#- William L. Rikard, Jr. 

Eric D. Welsh 

P ARK.ER POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

williamrikard@parkerpoe.com 

ericwelsh@parkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN, LLP 

150 Fayetteville Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

j ohngraybeal@parkerpoe.com 

Attorneys for Respondent 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: 

In the Matter of 

Jon Leibowitz, Chairman 

Julie Brill 

William E. Kovacic 

Edith Ramirez 

J. Thomas Rosch 

) 

) 

) 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

) 

) 

--------------------------) 

Docket No. 9327 

PUBLIC DOCUMENT 

STATEMENT PURSUANT TO SCHEDULING ORDER 

I, Adam C. Shearer, Esq., on behalf of Parker Poe Adams & Bernstein LLP ("Parker 

Poe") as counsel for Polypore International, Inc. ("Polypore"), hereby represent that Parker Poe 

has conferred with Complaint Counsel in an effort in good faith to resolve by agreement the 

issues raised by the instant Motion and have been unable to reach such an agreement. Parker Poe 

and Complaint Counsel discussed these issues over the telephone on June 30, 2010. As a result 

of these communications, Polypore and Complaint Counsel are at an impasse with respect to the 

issue raised in Respondent's Motion. 
Dated: July 1, 2010 

Adam C. Shearer 

PARKER POE ADAMS & BERNSTEIN, LLP 

Till'ee Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372~9000 

Facsimile: (704) 335-9689 

adamshearer@pal'kerpoe.com 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: 

In the Matter of 

Jon Leibowitz, Chairman 

William E. Kovacic 

J. Thomas Rosch 

Edith Ramirez 

Julie Brill 

) 

) 

) 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

) 

) , 

--------------------------) 

Docket No. 9327 

PUBLIC DOCUMENT 

PROPOSED ORDER 

Upon consideration of Respondent's Third Motion To Reopen the Hearing Record, it is 

hereby ORDERED that Respondent's Motion is GRANTED. The parties may engage in limited 

discovery consisting of depositions and subpoenas for documents and depositions on the 

following subjects, for the time period following the close of discovery on March 13, 2009: (1) 

the manufacture, development and marketing of battery separators for deep-cycle and motive 

applications by any actual or potential competitor of Daramic, including without limitation Entek 

International LLC, in the United States; (2) the actual or potential purchase of battery separators 

for deep-cycle or motive applications by Johnson Controls, Inc. ("JCI"), Superior Battery 

("Superior"), 01' any other customer or other third patiy in the United States; (3) consideration of 

the actual or potential purchase of battery separators for deep-cycle and motive applications from 

any actual or potential competitor of Daramic, by JCI, Superior or other customer or other third 

party, in the United States; (4) testing of battery separators for deep-cycle or motive applications 

manufactured by any actual or potential competitor of Daramic, in the United States. A further 
hearing in this matter will be held on _______ 2010 for purposes of receiving evidence 

concerning matters stated in Respondent's Third Motion to Reopen the Hearing Record and 

Respondent's Brief in Support of Respondent's Third Motion to Reopen the Hearing Record. 

Dated: July __ ,2010 

The Commission 
CERTIFICATE OF SERVICE 

I hereby certify that on July 8, 2010, I caused to be filed via hand delivery and electronic 

mail delivery an original and twelve (12) copies of the foregoing Respondent's Third Motion to 

Reopen the Hearing Record [Public], 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 July 8, 2010, I caused to be served one copy via electronic mail 

delivery and two copies via overnight delivery of the foregoing Respondent's Third Motion to 

Reopen the Hearing Record [Public] upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj@ftc.gov 

I hereby certify that on July 8, 2010, I caused to be served via first-class mail delivery 

and electronic mail delivery a copy of the foregoing Respondent's Third Motion to Reopen the 

Hearing Record [Public] upon: 

J. Robert Robertson, Esq. 

Federal Trade Commission 

Steven Dahm, Esq. 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

sdahm@ftc.gov 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

lTobertson@ftc.gov 

PPAB 1703903vl 

Brian R. Weyhrich 

Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: 

In the Matter of 

Jon Leibowitz, Chairman 

Julie Brill 

William E. Kovacic 

Edith Ramirez 

J. Thomas Rosch 

) 

) 

) 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

) 

) 

----------------------------) 

Docket No. 9327 

PUBLIC DOCUMENT 

RESPONDENT'S BRIEF IN SUPPORT OF 

ITS THIRD MOTION TO REOPEN THE HEARING RECORD 

INTRODUCTION 

Pursuant to 16 C.F.R. § 3.54(a) and 16 C.F.R. § 3.51(e), Respondent, Polypore 

International, Inc. ("Polypore"), submits this brief in support of its Third Motion to Reopen the 

Hearing Record. Respondent submits the present motion to bring to the Commission's attention 

newly-discovered evidence which directly contradicts many of the fundamental findings of fact 

and conclusions contained in the Initial Decision ("ID") issued by Administrative Law Judge D. 

Michael Chappell. Specifically, the new evidence shows that a competitor of Daramic LLC 

("Daramic"), which Respondent believes to be [ 

This evidence is not merely theoretical; Respondent has [ 

1 The instant motion and supporting affidavits contain Confidential Material pursuant to the Protective Order Governing 

Discovery Material entered on October 23, 2008. Respondent has designated such Confidential Material with "[ ]" to protect 

Confidential Material from disclosure on the public record. In the event Respondent's instant motion is granted, Respondent 

and/or appropriate 3rd parties intend to move for in camera treatment of such confidential material and/or underlying evidence in 

support thereof. 
] . 

Evidence of actual market activity is highly relevant. Such evidence is critical to the 

Commission's de novo review of this proceeding, particularly where the new evidence 

demonstrates that, contrary to the ALJ's findings, no monopoly exists in either the alleged motive 

or deep-cycle markets. Given the crucial nature of this new evidence, Respondent believes that it 

would be reversible error to deny the present motion and ignore this vital information. 

In the ID, Judge Chappell found four product markets, including deep-cycle and motive2 

separators. Judge Chappell further concluded that Respondent's acquisition of Microporous 

resulted in a merger to monopoly in these two alleged markets and was "presumptively illegal." 

ID, p. 251. As Judge Chappell stated: 

In the deep-cycle and motive markets, the dramatic increase in Daramic' s market 

shares caused by the merger and the changes in HHI in these markets, are more 

than sufficient to create a "presumption that the merger will lessen competition." . 

.. More importantly, in these two markets, Daramic acquired its only competitor. 

. . . A monopoly market share raises the strongest level of concern that could be 

associated with a merger. A combination of the only two manufacturers "should 

be viewed" as nothing "other than a merger to monopoly that by definition will 

have an anticompetitive effect[.]" Follo'wing Daramic's acquisition of 

Microporous, purchasers of deep-cycle and motive battery separators no longer 

have an alternative to Daramic. Thus, Daramic's elimination of its only 

competitor and merger to monopoly in the deep-cycle and motive markets IS 

presumptively illegal. ID, p. 251 (emphasis added and citations omitted). 

Only recently, Respondent has become aware of facts which demonstrate that Judge 

Chappell's findings and conclusions in this regard are erroneous.

3 Respondent has discovered 

that [ 

2 Separators used in motive applications are part of a larger catcgory of "industrial" application separators. (IDFOF 23). 

3 Respondent disagrees with many of Judge Chappell's findings and conclusions in his ID, including with respect to 

these alleged markets, and has appealed, in part, his decision and order to the Commission. The newly-discovered evidence 

provides additional basis for Respondent's contention that Complaint Counsel have failed to meet their burden and that the 

acquisition of Microporous by Respondent does not violate Section 7 of the Clayton Act or Section 5 of the FTC Act. 

2 
].4 This evidence goes to the very heart of Judge Chappell's conclusion that 

Daramic's acquisition of Microporous eliminated Daramic' s only competitor in the alleged deepcycle and motive markets, resulting in a merger to monopoly in each. This evidence further 

contradicts many of Judge Chappell's findings on market share and concentrations, entry issues 

and, significantly, whether Complaint Counsel even met their burden of proof. For example, 

Judge Chappell found that: 

• "Entek is not a participant in the deep-cycle market because it has no sales and is 

not an uncommitted entrant under the Merger Guidelines." IDFOF 383. 

• "Entek is not currently selling separators in the deep-cycle, motive or UPS 

markets. . .. Entek has essentially exited the industrial side of the business." 

IDFOF 1 027 (citations omitted). 

• "Entek is unlikely to expand to enter these markets in North America within the 

next two years." IDFOF 1028 (citations omitted). See infra at 6. 

This newly-discovered evidence shows, among other things, that: 

• Daramic did not acquire its only competitor in the alleged deep-cycle and motive 

markets, as found by the ALl 

• Complaint Counsel's evidence does not support that Daramic's acquisition of 

Microporous is a merger to monopoly in the alleged deep-cycle and motive 

markets, as found by the ALl 

• Purchasers of separators for deep-cycle and motive or industrial applications have 

an alternative today to Daramic, contrary to the conclusion of the ALl 

• Testing of separators can be expedited and entry can occur timely. 

This newly-discovered evidence not only supports Respondent's contention made 

throughout this matter that { 

}5, but based on other findings and conclusions in the ID, it shows that [ 

4 Respondent's assertion that [ ], rather than another competitor, is [ ] is 

based on the educated assumptions of its sales personnel. 

5 The instant motion and supporting affidavits contain In Camera Material pursuant to the Initial Decision of ALJ 

Chappell dated February 22, 2010. Respondent has designated such In Camera Material with "{ }" to indicate the in camera 

status of such evidence and to protect such In Call/era Material fr0111 disclosure on the public record. 

3 
].

6 The Commission must conclude on the 

basis of this evidence that [ ], and must 

further find, that Complaint Counsel failed to meet their burden of proof by failing to address 

] presence and significance. 7 

Respondent seeks an order from the Commission to reopen the record to permit the 

introduction of evidence on the limited topic of [ 

]. Respondent also seeks an order from the Commission permitting: (1) 

limited discovery of Entek, Johnson Controls, Inc. ("JCI") and Superior Battery ("Superior"), two 

customers of Daramic [ ], through narrowlytailored document subpoenas and depositions on these subjects; and (2) a hearing on this matter 

to permit evidence to be introduced regarding the foregoing subjects.s For the reasons stated 

herein and in the accompanying Affidavits of Robert B. Toth, Randy A. Hanschu, Steve 

McDonald and S. Tucker Roe, Respondent respectfully submits that the Commission should grant 

the present motion. 

ARGUMENT 

As correctly observed by Judge Chappell previously in reopening the record in this matter, 

it is imperative that the fact finder "'have all of the facts upon which it can render full justice on 

6 The ID found that Microporous was an actual competitor in the UPS market based solely on Enersys' sampling of a 

Microporous product which was under development. ID, p. 258. The ID also found that Microporous was a competitor in the SLI 

market based only on a desire to manufacture and market separators for an SLI application, not the actual manufacture and sale of 

those separators. ID, p. 259. 

7 Conversely, if the Commission were to somehow conclude that [ 

], a conclusion which would be erroneous, then the Judge's findings and conclusions that Microporous was a 

participant in the alleged UPS market must similarly be found to be in error, as Judge Chappell based his conclusion on scant 

evidence showing nothing more than Microporous testing a non-commercialized product with a customer for possible future use in 

UPS batteries. See Respondent's Appeal Brief pp. 28-29. 

8 If the limited discovery indicates the presence of another competitor marketing and producing separators for industrial 

applications, or that another Daramic customer is testing samples of a competitor's industrial separator, Respondent seeks leavc 

for discovelY from those entities as well. 

4 
the merits' of the action." In the Matter of Polyp ore International, Inc., Docket No. 9327, Order 

Granting Respondent's Second Motion to Reopen the Hearing Record and Setting the Hearing 

Schedule, October 22, 2009 (citing Caracci v. Brother Int'l Sewing Mach. Corp., 222 F. Supp. 

769, 771 (E.D. La. 1963), affd, 341 F.2d 377 (5th Cir. 1965). This principle applies equally at 

this stage now that this matter is before the Commission on appeal. 

Pursuant to the Commission's Rules of Practice governing this adjudication, Rule 3.54(a) 

allows that upon appeal, the Commission "will, to the extent necessary or desirable, exercise all 

the powers which it could have exercised if it had made the initial decision." 16 C.F.R. § 3.54(a). 

These powers include the powers enumerated under Rule 3.51(e)(1) which states: "At any time 

prior to the filing of the initial decision, an Administrative Law Judge may reopen the proceeding 

for the reception offUliher evidence." 16 C.F.R. § 3.51(e). 

As Complaint Counsel has previously stated, the applicable standard for reopening the 

record is: "(1) whether the moving paliy can demonstrate due diligence (that is, whether there is a 

bona fide explanation for the failure to introduce the evidence at trial); (2) the extent to which the 

proffered evidence is probative; (3) whether the proffered evidence is cumulative; and (4) whether 

reopening the record would prejudice the non-moving party." In the Matter of Polypore 

International, Inc., Docket No. 9327, Complaint Counsel's Response to Respondent's Second 

Motion to Reopen the Hearing Record, at 2 n. 1, (October 1, 2009) (quoting Brake Guard 

Products, Inc., 125 F.T.C. l38, 248 n. 38 (1998)). Respondent's new evidence meets the standard 

enumerated in Brake Guard Products, and the record should be reopened to admit this new and 

probative evidence so that the Commission will have all the relevant facts from which it can make 

its decision in this matter. Indeed, failure to reopen the record would be reversible error should 

the Commission affirm the ALJ and Respondent seek further appellate review, since the failure to 

admit this evidence affects a substantial right of the Respondent. In the Matter of Topps Chewing 

Gum, Inc., 63 F.T.C. 2223 (Nov. 15, 1963); Winters v. Marina Dist. Development Co., LLC, 317 

5 
Fed. Appx. 286, 288 (3rd Cir. 2009); Linkstrom v. Golden T. Farms, 883 F.2d 269,269 (3rd Cir. 

1989). 

A. The Proffered Evidence is Probative 

Respondent's newly-discovered evidence concerning [ 

] goes to the heart of significant issues in this matter and 

bears directly upon the findings and outcome of this case. In the ID, Judge Chappell made 

numerous findings of fact relevant here. For example, Judge Chappell found that: 

• "Entek is not a participant in the deep-cycle market because it has no sales and is 

not an uncommitted entrant under the Merger Guidelines." IDFOF 383. 

• "Neither of Entek's manufacturing facilities currently produces motive power 

separators." IDFOF 393. 

• "Entek is not currently selling separators in the deep-cycle, motive or UPS 

markets. . .. Entek has essentially exited the industrial side of the business." 

IDFOF 1027 (citations omitted). 

• "Entek is unlikely to expand to enter these markets in North America within the 

next two years." IDFOF 1028 (citations omitted). 

· "{ 

}" and thus, Entek was not a participant in the motive market. 

IDFOF 398, 403. 

• "Daramic expected customer qualification of HD for use in deep-cycle batteries to 

take more than eighteen months." IDFOF 1024. 

• Many of Daramic's deep-cycle customers take between eighteen and twenty-four 

months for testing and qualification. IDFOF 1017, 1023. 

• "Full testing of battery separators in motive batteries takes two to three years to 

complete." IDFOF 1011. 

In the ID, and based on the forgoing indings, Judge Chappell reached several conclusions 

which are again relevant here: 

• "[In the alleged deep-cycle and motive markets,] Daramic acquired its only 

competitor." ID, p. 251. 

• "A combination of the only two manufacturers 'should be viewed' as nothing 

'other than a merger to monopoly that by definition will have an anti competitive 

effect." ID, p. 251. 

6 
• "Following Daramic's acquisition of Microporous, purchasers of deep-cycle and 

motive battery separators no longer have an alternative to Daramic." rD, p. 251. 

• "Thus, Daramic's elimination of its only competitor and merger to monopoly in 

the deep-cycle and motive markets is presumptively illegal." rD, p. 251. 

• "[W]hile Entek supplied separators for industrial applications more than a decade 

ago, it has essentially exited that business." rD, p. 283. 

• "Entek is not a pmiicipant in any of the relevant product markets except SLI." ID, 

p.283. 

• "[T]he evidence demonstrates that Entek is unlikely to enter the deep-cycle, 

motive or UPS battery separator markets within the next two years." ID, p. 283-

84. 

• "Accordingly, Complaint Counsel has met its burden of proving that the effect of 

Daramic's acquisition of Microporous may be substantially to lessen competition 

in the deep-cycle, motive, UPS and SLI separator markets in North America." ID, 

p.299. 

• "The experience of Daramic and Microporous show that developing a profitable, 

competitive separator product takes several years, even for established and 

experienced manufacturers." rD, p. 279. 

Respondent's newly discovered evidence of [ 

] undercuts and contradicts 

each of the above findings and conclusions, demonstrating that [ 

]. Respondent believes that 

discovery will produce evidence, which it would then offer at a hearing in this matter, proving 

that (1) [ 

] (Affidavit of Randy A. Hanschu, sworn to on June 29, 2010 ("Hanschu Aff.") ~ 3, 

Affidavit of Robert B. Toth, sworn to June 30, 2010 ("Toth Aff."), ~~ 2-3), Affidavit of S. Tucker 

Roe, sworn to on June 30, 2010 ("Roe Aff."), ~~ 4-5), (2) [ 

] (Hanschu Aff., ~ 3, Toth Aff., ~~ 2-3), (3) [ 

(Hanschu Aff., ~ 3, Toth Aff., ~~ 2-3, Roe Aff., ~~ 4-5), (4) [ 

] (Hanschu Aff., ~ 3, Toth Aff., ~ 3, 

7 
Roe Aff., ~ 4), (5) [ 

] (Hanschu Aff., ~ 3, Toth Aff., ~~ 2-3, 5, Roe Aff., ~~ 4-5), and (6) 

] (Hanschu Aff., ~ 3, Toth Aff., ~ 3, Roe Aff., ~ 

4), the very things that Judge Chappell concluded [ ] had not done (and would not do) but 

would need to do to counter the alleged anti competitive effects of the merger. 

Respondent believes that such newly discovered evidence, presented at a hearing, will also 

demonstrate that (1) [ 

], (2) [ 

], (3) entry is not difficult and can occur timely, (4) the development of separators can be 

expedited and occur in a matter of months, (5) testing of separators can be expedited and occur in 

a matter of months, (6) Complaint Counsel's analysis of market shares, concentrations and HHI 

are erroneous, (7) Complaint Counsel failed to meet their burden, and (8) the merger is not likely 

to substantially lessen competition in the alleged markets. 

The new evidence shows [ 

]. Judge Chappell's 

analysis, based upon the findings in the ID, found that "[t]he acquisition was a merger-tomonopoly, increasing Daramic's [deep-cycle] market share to 100% and increasing the HHI by 

1,891 to 10,000," which the facts now show is simply not accurate. ID, p. 246. FUlihermore, the 

Initial Decision surmised that Respondent only showed that Entek was "theoretically willing to 

enter the motive market" but Entek was nonresponsive to customers' requests for industrial or 

motive separators. ID, p. 249 (emphasis added). According to the ID, Entek was not an actual 

competitor in the motive market and Daramic remained the only U.S. industrial or motive 

producer. The ID' s findings and conclusions that surmised a lack of interest by Entek in 

providing separators for deep-cycle or industrial or motive applications simply cannot stand as 

8 
]. In turn, [ 

]. (Hanschu 

Aff., ~ 3, Toth Aff., ~ 3, Roe Aff., ~ 4). This new evidence shows that [ 

] . 

B. Due Diligence is Demonstrated 

The Commission may allow the admission of new evidence where, among other things, 

the evidence was unavailable at the time of trial. Cf. Chrysler Corp. v. FTC, 561 F.2d 357, 362-

63 (D.C. Cir. 1997). Polypore has shown due diligence in procuring this additional new evidence 

which was not previously available during the hearing. As shown in the Affidavits of Robert B. 

Toth, S. Tucker Roe and Randy Hanschu, Respondent was unaware of [ 

] prior to May 4, 2010, 

nearly a year after the close of the hearing record. Hanschu Aff., ~ 3, Roe Aff., ~ 4. No evidence 

was introduced at trial to show that { 

}. In fact, at trial, testimony of at least one third party 

suggested just the opposite - that { }. Rodger Hall of 

JCI testified that JCI was not aware of any separator supplier other than Daramic that could 

supply separators for deep-cycle batteries: 

Q. Are you aware of any other battery separator suppliers out there that could 

supply a deep-cycle battery separator? 

A. We were not aware of any supplier in the United States or Mexico. 

Hall, Tr. at 2705. 

Polypore also has demonstrated due diligence in the timely filing of this motion. 

Respondent learned of [ ] only in May 2010. Hanschu Aff., ~ 5, Toth Aff., ~ 

4, Roe Aff., ~~ 3-4. On May 4, 2010, Tucker Roe ("Roe"), Daramic's Vice President of Sales and 

9 
Marketing for the Americas & EMEA, and Randy Hanschu ("Hanschu"), a Senior Technical 

Sales Manager of Daramic, met with Randy Hali ("Hart"), President of Superior at the 2010 BCI 

Conference. Hanschu Aff., ~ 3, Roe Aff., ~~ 3-4. Hanschu and Roe were informed that 

]. Hanschu Aff., '13, Roe Aff., ~~ 4-5. Hali mentioned that [ 

]. Hanschu Aff., ~ 3, Roe Aff., ~ 

5. Hart stated that [ 

]. Hanschu Aff., ~ 3, Roe Aff., ~ 4. Hart fmiher stated that he believed [ 

]. Hanschu Aff., ~ 3, Roe Aff., ~ 4. 

When asked by Hanschu for a [ ], Hart agreed and thereafter 

Hanschu called Superior periodically to check on whether they had received [ 

]. Hanschu Aff., ~~ 3-4. Superior received the Separator on or about June 15,2010 and 

provided a sample of this Separator to Daramic on June 17, 2010 and Daramic then filed this 

motion. Hanschu Aff., ~ 5, Affidavit of Steve McDonald, sworn to on June 28,2010 ("McDonald 

Aff.), ~~ 2-3. 

During this same time period, in a separate conversation that took place on May 20,2010, 

with the Vice President of JCI, Polypore's Chief Executive Officer, Robert Toth, was informed 

that [ 

unaware that [ 

Mr. Toth also understood from the conversation that [ 

]. Toth Aff., ~~ 2-3. Mr. Toth was 

] prior to this point in time. Toth Aff., '14. 

]. Toth Aff., ~ 5. 

The newly-discovered evidence demonstrates that Polypore only recently learned that 

], that concrete 

10 
evidence of the existence of [ ] was not available until 

June 16, 2010 and that upon receipt of this evidence, Respondent promptly filed this motion. 

Hanschu Aff., ~~ 5-6. 

C. The Proffered Evidence is not Cumulative 

This new evidence is not cumulative and does not repeat evidence presented by 

Respondent at trial. This is evident as Respondent was not aware that [ 

] prior to May 4, 2010. 

Hanschu Aff., ~ 6, Toth Aff., ~ 4, Roe Aff., ~~ 3-4. No evidence has previously been presented by 

Respondent or Complaint Counsel on this point. Evidence from { 

suggested that { 

}. The Initial Decision itself is silent on { 

was unlikely to enter these alleged markets, [ 

]. [ 

} presented at trial 

} and concludes that Entek 

]. Hanschu Aff., ~ 3, Toth Aff., ~ 5, Roe Aff., ~ 4. Customers are 

either [ 

]. Hanschu Aff., ~ 3; Toth Aff., 3, Roe Aff., ~ 4. [ 

] and is in the hands of the Respondent. Hanschu Aff., ~ 4, Toth Aff., ~ 3, Roe 

Aff., ~ 4. This new evidence shows that [ 

], decreasing whatever concentration and unilateral anti competitive 

effects that may be claimed. 

The new evidence that Respondent seeks to present to the Commission was not available 

at trial and does not duplicate evidence previously presented at the hearing. The evidence is not 

11 
cumulative and is probative of significant issues before the Commission. 

D. Reopening the Record will not Prejudice Complaint Counsel 

Though reopening the record will give rise to additional requirements that the parties must 

meet, this responsibility is shouldered equally by both parties-Respondent will have the same 

briefing and evidentiary requirements that Complaint Counsel will have. Aside from the 

increased filings, there is no prejudice unique to Complaint Counsel. The Commission's Rules of 

Practice clearly contemplate situations where new evidence is produced or discovered following 

the completion of briefing and the submission of findings. Complaint Counsel's previous 

contention that customers are somehow harmed during this appeal - a contention that one would 

expect them to resurrect here - is simply without basis in fact and belied by the newly discovered 

evidence which demonstrates robust competition between Daramic and [ ]. 

Were the record to remain closed to Respondent's newly-discovered material evidence, 

Respondent would be severely prejudiced as relevant evidence would be ignored by the 

Commission, and likely would constitute reversible error. As discussed above, Judge Chappell 

made many findings of fact and conclusions of law to the effect that Entek was not an 

uncommitted entrant, { }, in the alleged deep-cycle and motive 

markets and Respondent's acquisition of Microporous was a merger to monopoly in these alleged 

markets. Respondent's newly discovered evidence demonstrates [ 

] in this regard. "[I]n the interests of fairness and justice," the 

Commission should grant this motion, reopen the record and permit the introduction of this 

evidence concerning Entek's new separator for motive and deep-cycle applications. In the Matter 

of Polyp ore International, Inc., Docket No. 9327, Order Granting Respondent's Second Motion to 

Reopen the Hearing Record and Setting the Hearing Schedule, October 22, 2009 (citing Caracci, 

222 F. Supp. at 771). 

RESPONDENT'S PROFFER OF EVIDENCE 

12 
In support of its motion, Respondent submits the following proffer of evidence. 

Through testimony of Respondent's witnesses and that of third pmiy witnesses, and other 

evidence including third party documents, Respondent will show: 

1. After the close of the record, [ 

] . 

2. Following the close of the record, on May 20,2010, [ 

] . 

3. 

] . 

4. 

] . 

13 
5. The new evidence contradicts Complaint Counsel's evidence, and the opinion of 

Judge Chappell, that Daramic's acquisition of Microporous resulted in a merger to monopoly in 

the alleged deep-cycle and motive markets and that Respondent acquired the only competitor to 

Daramic in these alleged markets. 

] . 

6. The new evidence also shows that testing by customers can be accomplished in a 

matter of months and timely entry can be made. 

7. Complaint Counsel did not meet their burden of proof as Complaint Counsel failed 

to address [ ]. Thus, 

Complaint Counsel's analysis of market shares, concentrations and HHI are erroneous. 

CONCLUSION 

For the foregoing reasons, Respondent respectfully requests that this Court grant its 

motion and reopen the record permitting: (1) limited discovery of Entek, JCI, Superior and any 

other customer or third party that may be identified through narrowly-tailored document 

subpoenas and depositions regarding the above subjects; and (2) a hearing on this matter to 

permit evidence to be introduced regarding the foregoing subjects. 

14 
Dated: July 8, 2010 Respectfully Submitted, 

William L. Rikard, Jr. 

Eric D . Welsh 

PARKER POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

williamrikard@parkerpoe.com 

ericwelsh@parkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN, LLP 

150 Fayetteville Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

j ohngraybeal@parkerpoe.com 

Attorneys for Respondent 
CERTIFICATE OF SERVICE 

I hereby certify that on July 8, 2010, I caused to be filed via hand delivery and electronic 

mail delivery an original and twelve (12) copies of the foregoing Respondent's Briefin Support 

of Third Motion to Reopen the Hearing Record [Public}, 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 July 8, 2010, I caused to be served one copy via electronic mail 

delivery and two copies via overnight delivery of the foregoing Respondent's Brief in Support 

of Third Motion to Reopen the Hearing Record [Public} upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj@ftc.gov 

I hereby certify that on July 8, 2010, I caused to be served via first-class mail delivery 

and electronic mail delivery a copy of the foregoing Respondent's Brief in Support of Third 

Motion to Reopen the Hearing Record [Public} upon: 

J. Robert Robertson, Esq. 

Federal Trade Commission 

Steven Dahm, Esq. 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

ITO bertson@ftc.gov 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

sdahm@ftc.gov 

Brian 

3~ R. Weylu'ich iJ~ Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706