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UNITED STATES OF AMERICA \ S(lG óŠ-~ L ~~" ..~y ~.J.:~.-:.t."-;,a~~~2:;~~~~~.:..-t;';:_'J";?"~::~/ ,BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) 

) Docket No. 9327 

)

Polypore International, Inc., ) PUBLIC 

a corporation ) 

) 

RESPONDENT'S RESPONSES TO COMPLAINT COUNSEL'S POST-TRIAL
 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON
 

REOPENED HEARING
 

Counsel for Respondent: 

Wiliam L. Rikard, Jr. 

Eric D. Welsh 

Deborah L. Edney 

Adam C. Shearer 

Brian R. Weyhrich 

Sarah A. Fulton 

Katie C. Miler 

PARKR POE ADAMS & BERNSTEIN 

LLP 

401 South Tryon Street, Suite 3000 

Charlotte, N C 28202 

Telephone: (704) 372-9000
 

Facsimile: (704) 335-9689
 

wiliamrikardCiparkerpoe.com 

ericwelshCiparkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN 

LLP 

150 Fayettevile Street
 

Raleigh, NC 27602 

Telephone: (919) 835-4599
 

Facsimile: (919) 828-0564
 

j ohngraybealCiparkerpoe.com 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

DOCKET NO. 9327 

IN THE MATTER OF 

POLYP ORE, INTERNATIONAL, INC. 

COMPLAINT COUNSEL'S POST-TRIAL
 

PROPOSED FINDINGS OF FACT
 

ON REOPENED HEARING
 
TABLE OF CONTENTS
 

i. Complaint Counsel has Proven that Respondent's Proffers Are Not True................. 1
 

A. Proffer #1 is not true ............................................................................................... 1
 

· Respondent's allegation in the first proffer that "after the close of the 

record" Exide decided to l
 

) is not accurate because Exide has been l
 

) ............................................................................... 1
 

· Respondent's allegation in the first proffer that "Exide decided to move 

l ) of its PE separator purchases for l ) to another
 

supplier" is not accurate because Exide has l 

) business to another supplier.............................................. 5 

· Respondent's allegation in the first proffer that "Exide decided to move 

l ) its PE separator purchases for l ) to another
 

supplier" is not accurate because Exide has l 

). .............. ...................................................................... 10
 

· Respondent's allegation in the first proffer that Exide's purchase orders of 

l ) of PE separators "amounts to approximately l )
 

worth ofPE separators" is not accurate because Exide's l 

). ................................................................ 13
 

· Respondent's allegation in the first proffer that Exide's purchase orders of 

l ) of PE separators "amounts to approximately l )
 

worth ofPE separators" is not accurate even as to Exide's l ) separator
 

needs because it is not based on a l 

) needs................................................................................... 15
 

· Respondent's allegation in the first proffer that Exide's l 

) exceeded any reasonable forecast provided by Exide is not accurate 

because Exide informed Daramic of l 

) ......................................................... 16 

· Respondent's allegation in the first proffer that Exide's l 

) are a result of a decision to move l ) of its business to
 

another supplier is not accurate because Exide l 

) ....................................................................................................... 23
 
· Respondent's allegation in the first proffer that Exide's l 

) are "inconsistent with past order patterns" is not accurate because Exide 

l 

) ........................................................31
 

B. Proffer #2 is not true............................................................................................. 36
 

· Respondent's allegation in the second proffer that "Exide does not intend 

to and wil not purchase any additional separators from Daramic in either l 

)" is not accurate because Exide intends on purchasing separators from Daramic in l ) ..... .......... .......... ......................... ........................ 36 

· Respondent's allegation in the second proffer that "Exide does not intend 

to and wil not purchase any additional separators from Daramic in either l 

)" is not accurate because Exide offered l 

) ........................................................... 41 

· Respondent's allegation in the second proffer that Exide wil have l 

) of separators is not accurate because Daramic l 

) to Exide................................................................. 45 

C. Proffer #3 is not true.... ............................................................................ ............. 53
 

· Respondent's allegation in the third proffer that Exide has decided not to 

purchase PE separators from Daramic in l ) is not accurate
 

because Exide l 

) ................................................................................................................. 53 

· Respondent's allegation in the third proffer that Daramic' s decision to 

l ) is based on Exide' s "apparent decision not to
 

purchase PE separators from Daramic in l )" is not accurate
 

because Daramic has been l 

) ................................................;.......................... 53 

D. Proffer #4 is not true................................................................. ............................ 69
 

· Respondent's allegation in the fourh proffer that it "appears unlikely" that 

Daramic wil "retain any small amount of business from Exide in l ), or
 

thereafter" is not accurate because Daramic anticipates supplying Exide in 

l ) with or without a contract ................................................................... 70 

· Respondent's allegation in the fourth proffer that for Daramic to "retain 

any small amount of business from Exide in l ), or thereafter" it "wil only
 

be able to obtain such sales through a l )" is not
 

accurate because DaramIc has never offered Exide l 

) .......................................................................................................72
 

11 
· Respondent's allegation in the fourth proffer that for Daramic to "retain 

any small amount of 
 business from Exide in l ), or thereafter" it "wil only 

be able to obtain such sales through a l )" is not
 

accurate because Daramic has never offered l
 

) .................................................................................................. 76
 

· Respondent's allegation in the fourth proffer that for Daramic to "retain 

any small amount of 
 business from Exide in l ), or thereafter" it "wil only 

be able to obtain such sales through a l )" is not
 

accurate because Daramic has not offered a l ) on
 

motive, UPS, or deep-cycle separators ..............................................................83
 

II. Exide is not a power buyer: ...................................................................................... 86
 

· l 

) .........................................................................................................86
 

· Daramic has refused to provide Exide l
 

) .............................................................................................. 88
 

· Daramic' s proposed l
 

) ...................................................... ...... 88
 

· l 

) ............................................................... 93
 

· Daramic has reneged on a commitment to Exide tol
 

) ................................................................................................97
 

· Daramic is refusing to l
 

) ........................................................................... 98
 

· Daramic has reneged on l
 

) .................................................................... 105
 

· l ) ......................................................................................................109
 

· Daramic has threatened l
 

) ............................................................... 110
 

· Daramic is attempting to l
 

) ..................................................................... 113
 

III. Other (Credibility): ................................................................................................. 118
 

11 
PROPOSED CONCLUSIONS OF LAW................................................................... 118
 

iv
 
i. Complaint Counsel has Proven that Respondent's Proffers Are Not True
 

A. Proffer #1 is not true 

· Respondent's allegation in the first proffer that "after the close of the record" Exide decided to r 1 is not
 

accurate because Exide has been r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1249. Exide decided to l 

) (Gilespie, Tr. 5826-5827, in


camera). l 

) (Gilespie,


Tr. 2966, in camera; see also Bregman, Tr. 2899-2901, in camera; CCFOF605). Mr. 

Seibert, who has only been in position at Daramic since late 2008, admitted that l 

) (Seibert, Tr. 5730, in camera; PX5076 (Seibert, Dep. at 48), in 

camera). 

Response to Findine: No. 1249: 

Complaint Counsel's Finding No. 1249 is incomplete and misleading. First, to the extent 

Complaint Counsel cites Gilespie's testimony to support its proposed finding, such support 

should be disregarded. Gilespie has proven not to be credible and his testimony should be given 

no weight. Moreover, it is telling that Complaint Counsel offers no documentation to attempt to 

support this finding. In addition, ~
 

). (Gilespie, Tr. 2965, in camera). ~ 

J ." 

(Gilespie, Tr. 2965, in camera). 
Moreover, ~
 

). (RFOF
 

1501, in camera). ~ 

). (RFOF 1602, in camera; Gilespie, Tr. 5851, in camera). 

Instead, ~
 

). (RFOF
 

1540-43, in camera). Not surprisingly, l 

). (Gilespie, Tr. 5870, in camera; RX01693 at 002 ("~ 

)."), in
 

camera). Instead, as Gilespie himself even testified, l 

). (Gilespie, Tr. 5838-39, in camera).
 

1250. Exide's decision to l 

) 

(Gilespie, Tr. 5826-5827, in camera). l 

) (Gilespie, Tr. 5826, 2977, 3049, in camera).
 

Response to Findine: No. 1250: 

Complaint Counsel's Finding No. 1250 is inaccurate, incomplete and misleading. First, 

Complaint Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie 

has proven not to be credible and his testimony should be given no weight. Moreover, it is 

tellng that Complaint Counsel offers no credible evidence to attempt to support this assertion. 

2
 
Complaint Counsel introduced no exhibits to support this proposed finding even though it had 

ample opportunity to do so. Complaint Counsel fails to support this proposed finding with any 

credible evidence.
 

First and foremost, Complaint Counsel arives at Finding No. 1250 by manipulating 

Gilespie's hearing testimony. During the re-opened hearing, Complaint Counsel ~
 

) (Gilespie, Tr. 5826, in camera)(emphasis added). l 

) (Gilespie, Tr. 5826-27, in camera). This testimony ~
 

) This is further evidenced when looking at Gilespie's actual testimony in May. Only 

one of the pages of initial hearing testimony that Complaint Counsel cites is relevant to their 

proposed finding, and there l 

) (Gilespie, Tr. 3049, in camera). Complaint 

Counsel ignores ~ 

) (Gilespie, Tr. 3021, in camera). At the time of 
 the initial hearing l

) It was only on cross-examination at the
 

November 12, 2009 hearing that Gilespie, for the first time, admitted (albeit reluctantly) that 

~ ). (Gilespie,
 

Tr. 5838-39, in camera). 

3 
This finding further ignores that fact that after the record was closed on June 22, 2009, 

~ 

)). (RFOF 1529, in camera; RX01676, in camera; Seibert, Tr. 5674, in 

camera; Gilespie, Tr. 5845, in camera). ~ 

). (RFOF 1529, in camera; Seibert, Tr. 5673-74,5676-77, in 

camera; Gilespie, Tr. 5845-46, in camera; RX01676, in camera). ~ 

). (RFOF 1540, in camera; 

Seibert, Tr. 5677-78, in camera). ~ 

), (RFOF 1209, 1212, in camera), ~ 

this information was disclosed by Gilespie when he 

testified in May 2009, as Exide chose to withhold its strategy from this Cour. 

). (RFOF 1641, in camera). None of 


1251. While Exide has been ~
 

) (Gilespie, Tr. 5829, in camera).
 

Response to Findine: No. 1251: 

Complaint Counsel's Finding No. 1251 is incomplete and misleading, and draws a false 

conclusion. For its response to this finding, Respondent incorporates by reference its responses 

4
 
to Finding Nos. 1249 and 1250. First, it is telling that Complaint Counsel relies solely on the 

testimony of Gilespie to support its finding. Gilespie's testimony is not credible and should be
 

given no weight. Complaint Counsel introduced no exhibits to support this proposed finding 

even though it had ample opportunity to do so. Complaint Counsel fails to support this proposed 

finding with any credible evidence. In addition, this finding completely ignores the undisputed 

evidence that ~
 

). (RFOF 1552, in camera;
 

RX01687 at 002, in camera). ~ 

). (RFOF 1552, in camera). 

· Respondent's allegation in the first proffer that "Exide decided to move l 1 

of its PE separator purchases for r 1 to another supplier" is not
 

accurate because Exide has r
 

1 business to another supplier
 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1252. Exide has l 

) (Gilespie, Tr. 5826, in camera).
 

Response to Findine: No. 1252: 

Complaint Counsel's Finding No. 1252 is incomplete, incorrect and misleading. First, 

Complaint Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie 

has proven not to be credible and his testimony should be given no weight. Moreover, it is 

5 
tellng that Complaint Counsel offers no credible evidence to attempt to support this assertion. 

Complaint Counsel introduced no exhibits to support this proposed finding even though it had 

ample opportunity to do so. Complaint Counsel fails to support this proposed finding with any 

credible evidence. 

Significantly, Complaint Counsel's proposed finding ignores the clear evidence that 

~ ). (RFOF 

1539-1542, in camera). ~ 

). (RFOF 1541, in camera). As a result, ~ 

). 

(RFOF 1539-1542, in camera). ~ 

)." (RFOF 1549,
 

in camera; RX01704, in camera; Gilespie, Tr. 5838, in camera). ~ 

). (RFOF 1549, in camera; Gilespie, Tr. 5838, in camera). ~ 

). (RFOF 1549, in camera; Toth, Tr. 5750-51, in 

camera; RX01704, incamera). l
 

). (RFOF 1549, in camera; Gilespie, Tr. 5838-39, in 

camera). Accordingly, ~
 

). (RFOF 1549, in 

camera). 

6
 
Moreover, this finding ignores testimony by Seibert which provides: l 

) (PX5076 (Seibert, Dep. at 49), in camera). In addition, 

~ 

). (Seibert, Tr. 5723 (" ~
 

)."), in camera; 5691 ("~ 

) "), in camera). ~ 

). (RFOF 1553, in camera). 

1253. When asked if 
 Exide had ever informed him that it intended to l 

) (PX5076 (Seibert, Dep. at 48-49), in camera). Mr. Seibert admitted that 

l 

) PX5076
 

(Seibert, Dep. at 48-49), in camera). What Mr. Seibert does know is that l 

). 

(PX5076 (Seibert, Dep. at 74), in camera). 

Response to Findine: No. 1253: 

Complaint Counsel's Finding No. 1253 is incomplete and misleading, and it should be 

disregarded in its entirety. Complaint Counsel ignores Seibert's uncontradicted testimony that, 

" r )." (Seibert, Tr. 5723, 

in camera). This finding also completely ignores further testimony by Seibert which provides: l 

) (PX5076 (Seibert, Dep. at 49), in camera). 

7
 
~ 

). (RFOF 1501, 1602, in camera; Gilespie, Tr. 5851, in camera). Instead, ~ 

). (RFOF 1540-43, in camera). Not
 

surprisingly, ~
 ). 

(Gilespie, Tr. 5870, in camera; RXO 1693 at 002 (" ~
 

)."), in camera). Instead, as 

Gilespie himself even testified, ~ 

). (Gilespie, Tr. 5838-39, in camera). r 

). (RFOF 1594, in camera). As a further response to 

this finding, Respondent incorporates by reference its response to Finding No. 1252. 

1254. Mr. Gilespie testified that while Exide intends on purchasing r 

) (Gilespie, Tr. 5826, 5838, in camera). Moreover, Exide has 

r 

) (Gilespie, Tr. 5868, in camera). Additionally, Exide would not l 

) (Gilespie, Tr. 5826-5828, in camera).
 

Response to Findine: No. 1254: 

Complaint Counsel's Finding No. 1254 is incomplete and misleading. For its response to 

this finding, Respondent incorporates by reference its responses to Finding Nos. 1252 and 1253. 

First, it is tellng that Complaint Counsel relies solely on Gilespie's testimony to support this 

8 
proposed finding. Gilespie has proven not to be credible and his testimony should be given no 

weight, and this finding should be disregarded in its entirety. Complaint Counsel introduced no 

exhibits to support this proposed finding even though it had ample opportunity to do so. Nor did 

Complaint Counsel depose, subpoena, or call to testify at the November 12, 2009 hearing a 

single witness from Entek - instead choosing to rely entirely on the rehearsed and not credible 

testimony of Gilespie. As a result, Complaint Counsel has failed to support this proposed
 

finding with any credible evidence.
 

Significantly, this finding completely ignores Seibert's testimony which provides: 

~ 

) (PX5076 (Seibert, Dep. at 49), in camera). 

Moreover, r 

). (RXO 1668 at 002, in camera;
 

Seibert, Tr. 5659-60, in camera; Gilespie, Tr. 5839, in camera). Further, the evidence in the 

record stands in stark contrast to Complaint Counsel's proposed finding - ~ 

). (See Respondent's Response to Findings Nos. 1249-53).
 

1255. Because today Exide has r 

) (Gilespie, Tr. 5823, 5833, in camera;
 

CCFOFI254). 

Response to Findine: No. 1255: 

9
 
Complaint Counsel's Finding No. 1255 is incomplete and misleading. First, it is telling 

that Complaint Counsel relies solely on Gilespie's testimony to support this proposed finding. 

Gilespie has proven not to be credible and his testimony should be given no weight, and this 

finding should be disregarded in its entirety. Complaint Counsel introduced no exhibits to 

support this proposed finding even though it had ample opportunity to do so. Further, 

Respondent incorporates its responses to Proposed Finding Nos. 1249-54. In addition, 

Respondent directs the Court to the evidence in the record showing that ~ 

), 

(RFOF 1209, 1212, in camera), r 

). (RFOF 1641, in camera). 

Additionally, ~
 

). (RFOF 1642, in camera). 

· Respondent's allegation in the first proffer that "Exide decided to move f 

1 its PE separator purchases for r 1 to another supplier" is not
 

10
 
accurate because Exide has r 

1. 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1256. Exide l 

) for such 

products. (Gilespie, Tr. 5829, in camera).
 

Response to Findine: No. 1256: 

Complaint Counsel's Finding No. 1256 is incomplete and misleading, and draws a false 

conclusion. First, it is tellng that Complaint Counsel relies solely on the testimony of
 

Gilespie to support its finding. Gilespie's testimony is not credible and should be given no
 

weight. Complaint Counsel introduced no exhibits to support this proposed finding even 

though it had ample opportunity to do so. Complaint Counsel fails to support this proposed 

finding with any credible evidence. Second, this finding completely ignores the undisputed
 

evidence that ~ 

). (RFOF 1552, in 

camera; RX01687 at 002, in camera). Based on this evidence, it is clear that ~ 

). (RFOF 1552,
 

in camera). 

1257. Exide has informed Daramic that it intends to r 

). (Gilespie,


Tr. 5810, in camera, 5864-5865, in camera). In fact, Mr. Gilespie testified that 

11 
Exide expects to l 

). (Gilespie, Tr.
 

5825-5826, in camera). 

Response to Findine: No. 1257: 

Complaint Counsel's Finding No. 1257 is incomplete and misleading. First, Complaint 

Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie has proven 

not to be credible and his testimony should be given no weight. Moreover, it is tellng that 

Complaint Counsel offers no credible evidence to attempt to support this assertion. Complaint 

Counsel introduced no exhibits to support this proposed finding even though it had ample 

opportunity to do so. Complaint Counsel fails to support this proposed finding with any credible 

evidence. 

Second, this finding ignores several key pieces of evidence which shows that ~ 

), 

(RFOF 1209, 1212, in camera), ~ 

). (RFOF 1641, in camera). In fact, 

~ 

) (PX5076 (Seibert, Dep. at 49), in camera). 

~ 

). (RFOF
 

12
 
1552, in camera; RX01687 at 002, in camera). It is clear from this evidence that ~ 

) (RFOF 1552, in camera). Extensive evidence was put forth during the first 

hearing regarding ~
 

). (RFOF 201, 589; RX00303, in camera,
 

RX00304; RX00305; RX00306; RX00307; RXOOI47, in camera; RFOFCOL 926-76). 

· Respondent's allegation in the first proffer that Exide's purchase orders of r 

1 of PE separators "amounts to approximately r 1 worth of PE
 

separators" is not accurate because Exide's r 

1. 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1258. Exide has not placed any l 

). (Gilespie, Tr. 5798, in camera). Mr. Seibert admitted that l
 

) (Seibert, Tr. 5701, in
 

camera). With respect to his conversations with Mr. Gilespie prior to Mr. Seibert's 

testimony in June, Mr. Seibert admits that l 

) (PX5076 (Seibert, Dep. at 12), in camera). 

Response to Findine: No. 1258 

Complaint Counsel's Finding No. 1258 is false and misleading. l 

). While r
 

), Complaint Counsel distorts Mr. Seibert's 

1 ( 

). Complaint Counsel's Findings of Fact use the term incremental orders in all instances for the sake of 

consistency. 

13 
statement to imply that r ). In fact, ~
 

). (Gilespie, Tr. 5836-37, in camera; RX01723 at 002, in camera). ~ 

). (Gilespie, Tr. 5843; RXOI726). r 

), long after Mr. Seibert's June trial 

testimony and the referenced conversation with Gilespie. (PX5076 (Seibert, Dep. at 12), in 

camera). 

1259. Neither is Exide in any way l 

). (Gilespie, Tr. 5800, 5832, in camera).
 

Response to Findine: No 1259: 

Complaint Counsel's Finding No. 1259 is inaccurate, unreliable and should therefore be 

disregarded by this Cour. First, Complaint Counsel cites only Gilespie's testimony to support 

its proposed finding. Gilespie has proven not to be credible and his testimony is given no 

weight. Moreover, it is tellng that Complaint Counsel offers no credible evidence to attempt to 

support this assertion. Complaint Counsel introduced no exhibits to support this proposed 

finding even though it had ample opportunity to do so. Complaint Counsel fails to support this 

proposed finding with any credible evidence. 

Second, the evidence shows that r 

). (Gilespie, Tr. 5836-37, 5843, in camera; RX01723 at 002, in 

camera; RXOI726). l 

14
 
). 

· Respondent's allegation in the first proffer that Exide's purchase orders of r 

1 of PE separators "amounts to approximately r 1 worth of PE
 

separators" is not accurate even as to Exide's l ) separator needs because it is not based on a r 1 needs
 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1260. l 

) (Gilespie, Tr. 5862, in camera). It is unrealistic to use Exide's l 

) (Gilespie, Tr. 5862, in


camera). r 

) (Gilespie, Tr. 5862, in camera).
 

Response to Findine: No. 1260: 

Complaint Counsel's Finding No. 1260 is incorrect, inaccurate, unreliable and 

misleading. First, Complaint Counsel cites only Gilespie's testimony to support its proposed 

finding. Gilespie has proven not to be credible and his testimony is given no weight. Moreover, 

it is tellng that Complaint Counsel offers no credible evidence to attempt to support this
 

assertion. Complaint Counsel introduced no exhibits to support this proposed finding even 

though it had ample opportunity to do so. Complaint Counsel fails to support this proposed 

finding with any credible evidence. 

Second, Gilespie, not Respondent, determined that l 

). (RFOF 1540, in camera). 

When confronted about ~ 

15 
l 

). (Gilespie, Tr. 5849, in camera).
 

Moreover, Complaint Counsel suggestion that l 

) is pure speculation. Neither Complaint Counsel nor Exide have any idea 

about when the economy wil rebound or when Exide may expect to see an increase in sales of 

batteries. For example, ~ 

)." (Gilespie, Tr. 5862, in camera). Yet r 

). (Gilespie, Tr. 5846, in camera).
 

) (Gilespie, Tr. 5849,
 

in camera). In any event, l 

). (Seibert, Tr. 5672, in camera). 

· Respondent's allegation in the first proffer that Exide's r 1
 

exceeded any reasonable forecast provided by Exide is not accurate because Exide 

informed Daramic of r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1261. Exide provided a l 

). (Gilespie, Tr. 5791-5792; Seibert, Tr. 

5695-5696, in camera). Exide's l
 

). (Gilespie, Tr. 5792, in camera; Seibert, Tr. 5695-5696, in camera). 

16
 
Response to Findine: No. 1261: 

Complaint Counsel's Finding No. 1261 is incomplete, inaccurate and misleading to the 

extent the Complaint Counsel suggests that l 

). First, Complaint 

Counsel ignores that l 

). (Seibert, Tr. 5682-83, in camera; RX01724, in camera).
 

l 

), (Seibert, Tr. 5674, in camera), 

l ). (Seibert, Tr. 5683, in 

camera). In fact, l 

). (RXOI699, in camera; Seibert, Tr. 5672-74, in camera). 

Second, l 

) (Seibert, Tr. 5682, in camera). In particular, l 

). (Seibert, Tr. 5681-82, in camera). In addition, 

~ ). (Seibert, Tr. 5682-83, in camera; RX01724, in 

camera). ~ ). 

(Gilespie, Tr. 5849-50, in camera). l 

). (RXO 1724, in camera;
 

Seibert, Tr. 5683, in camera). For example, ~ 

). (RXOI724, in camera). Similarly, ~ 

17 
l 

). (RXOI724, in camera).
 

Accordingly, l 

) (Seibert, Tr. 5682, in camera). Respondent 

feared that l ) (Seibert,
 

Tr. 5682, in camera). l 

). " 

(RXOI717, in camera; Gilespie, Tr. 5848-49, in camera; Seibert, Tr. 5683-84, in camera). 

) 

1262. Exide's l 

). (Gilespie, Tr. 5792, 5860,
 

in camera). Thus, Exide informed Daramic l 

). (RXOI715, in camera (l 

))). Mr. Seibert admitted that l
 

). (Seibert, Tr. 5697, in camera). 

Response to Findine: No. 1262: 

Complaint Counsel's Finding No. 1262 is inaccurate and misleading. For its response to 

this finding, Respondent incorporates its response to Finding No. 1261. In addition, this finding 

ignores the reality that l 

18 
). (Seibert, Tr. 5681-82, in
 

camera). Based on the evidence, this Court should find that l 

). 

1263. Exide's l 

). (PX5076 (Seibert, Dep. at 6, 9), in camera). 

Response to Findine: No. 1263: 

Complaint Counsel's Finding No. 1263 is misleading to the extent that l 

). For its response to
 

this finding, Respondent incorporates its response to Finding Nos. 1261-62. 

1264. Mr. Seibert wrote a letter to Mr. Gilespie on June 2, 2009, two days before he 

testified in the previous hearing, acknowledging that Daramic l 

). (PX5076 (Seibert, Dep. at 10, in camera))? Mr. Seibert confirmed that l 

) (PX5076 (Seibert, Dep. at 10-11), in camera). 

Response to Findine: No. 1264: 

Complaint Counsel's Finding No. 1264 is inaccurate, misleading and should be 

disregarded to the extent that Complaint Counsel attempts to use deposition testimony to submit 

the content of a document not in evidence. Under Rule 1003 of the Federal Rules of Evidence 

"(t)o prove up the content of a writing... the original is required, except as otherwise provided in 

2 Mr. Seibert attempted to evade this question at trial, insisting that he "would have to see a communication." 

(Seibert, Tr. 5699, in camera). Complaint Counsel was forced to impeach him with his deposition testimony. 

(Seibert, Tr. 5699-5701, in camera). 

19 
these rules or Acts of Congress." While Complaint Counsel possessed the June 2nd letter at Mr. 

Seibert's deposition, they introduced no exhibits despite ample opportunity to do so. Mr. 

Seibert's deposition testimony is not the best evidence of the content of the June 2nd letter, and 

this Cour should disregard this finding. Further, when Complaint Counsel asked Mr. Seibert 

about this June 2nd letter at trial, Mr. Seibert stated that he "would have to see a communication." 

(Seibert, Tr. 5699, in camera). Complaint Counsel refused to show Mr. Seibert the requested 

communication. 

To the extent that this finding is admissible, Respondent incorporates its responses to
 

Finding Nos. 1261-1263. Respondent states that l 

). It is uncontroverted that l 

). (RFOF 1529, in camera). In fact, l 

)." (RXOI717, in camera;
 

Gilespie, Tr. 5848-49, in camera; Seibert, Tr. 5683-84, in camera). Only days later, l 

). (RFOF 1529, in camera). 

l 

). (RXOI717, in camera; Gilespie, Tr. 5848-49, in camera;
 

Seibert, Tr. 5683-84, in camera). Also, l 

). Accordingly, l
 

20 
). 

1265. Exide began l
 

). (Gilespie, Tr. 5795, 5845-5846, in camera).
 

Response to Findine: No. 1265: 

Complaint Counsel's Finding No. 1265 is incorrect and misleading to the extent that l 

). Forits
 

response to this finding, Respondent incorporates its response to Finding Nos. 1261-63.
 

Respondent further states that l 

). (RFOF 1529, 1531, in camera; RX01724, in camera). 

Additionally, l 

). (RFOF 1529, in camera). ~ 

). In addition, r 

). (Seibert, Tr. 5682-83, in camera; RXO 1724, in camera). ~ 

). (Gilespie, Tr. 5849-50, in camera).
 

~ 

). (RXOI724, in camera; Seibert, Tr. 5683, in camera). For 

21 
example, ~
 

).
 

(RXOI724, in camera). Similarly, ~ 

). (RXOI724, in camera). ~
 

). 

1266. Exide placed ~
 

). 

(Gilespie, Tr. 5844-5845, 5860, in camera). 

Response to Findine: No. 1266: 

Complaint Counsel's Finding No. 1266 is inaccurate and misleading to the extent that l 

). For its
 

response to this finding, Respondent incorporates its response to Finding Nos. 1261-63 and 1265. 

Respondent fuher states that ~ 

). (Seibert, Tr. 5681-82, in camera). In addition, ~
 

). (Seibert, Tr. 5682-83, in camera; RX01724, in camera).
 

Moreover, l 

). (RXOI717, in camera; Gilespie, Tr. 5848-49,
 

in camera; Seibert, Tr. 5683-84, in camera). l 

). 

22 
· Respondent's allegation in the first proffer that Exide's r ) are a
 

result of a decision to move r 1 of its business to another supplier is not 

accurate because Exide r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1267. The only reason that Exide l 

). (Gilespie, Tr. 5795-5796, in camera). In fact, but for the l 

). (Gilespie, Tr. 5813, 5832, in camera).
 

Response to Findine: No. 1267: 

Complaint Counsel's Finding No. 1267 is uneliable, incorrect, inaccurate and 

misleading. First, Complaint Counsel cites only Gilespie's testimony to support its proposed 

finding. Gilespie has proven not to be credible and his testimony is given no weight. Moreover, 

it is tellng that Complaint Counsel offers no credible evidence to attempt to support this
 

assertion. Complaint Counsel introduced no exhibits to support this proposed finding even 

though it had ample opportunity to do so. Complaint Counsel fails to support this proposed 

finding with any credible evidence.
 

Further, l 

). Gilespie testified that l 

) (Gilespie, Tr. 5807, in camera). Gilespie further testified that ~ 

I 

). (Gilespie, Tr. 5807, in camera). Gilespie's testimony here, and elsewhere, is not 

credible. According to Exide's second quarer results, Exide's sales of transportation and 

23
 
industrial batteries are down 29% and 26%, respectively. (Gilespie, Tr. 5843-44; RXOI726). 

Moreover, Exide's free cash has declined 129% from last year, which Gilespie does not dispute. 

(Gilespie, Tr. 5844). ~
 

). (Gilespie, Tr. 5862, in camera).
 

Based on the foregoing, including specifically ~ 

). (JX-9, in camera;
 

Seibert, Tr. 5680-81, in camera). l 

). (RFOF 1549, 1552,
 

in camera). l 

).
 

24
 
Additionally, Complaint Counsel mischaracterizes l 

). ~
 

) (RX00976, in camera, PX0728, in camera). l 

) (RX00976, in camera). l 

) (PX0728, in camera).
 

1268. Moreover, Mr. Gilespie informed Mr. Seibert and Mr. Roe that l
 

). (Gilespie, Tr.
 

5796, in camera). Indeed, Daramic admitted that it l 

) (RX01679 at 002, in camera). 

Response to Findine: No. 1268: 

Complaint Counsel's Finding No. 1268 is unreliable, incorrect, misleading and 

inaccurate. For its response to this finding, Respondent incorporates its response to Finding No. 

1267. Respondent further states that ~ 

). (RXOI679, in camera). l
 

25 
)." (RX01720 at 005, in camera). ~ 

). (RXOI685, in 

camera). 

1269. l 

). (Gilespie, Tr. 5789­

5790,5859, in camera; see also RX01720 at 19-20, in camera n 

). (Gilespie, Tr.
 

5791, in camera). ~
 

) (Gilespie, Tr. 5793, in camera).
 

Response to Findine: No. 1269: 

Complaint Counsel's Finding No. 1269 is incorrect and misleading. For its response to 

this finding, Respondent incorporates its responses to Finding Nos. 1267-68. Respondent 

further states that l 

)." (RX01720 at 005, in camera). 

~ 

26 
). (RFOF 1534, in
 

camera). ~
 

). (RXOI723, in camera;
 

Gilespie, Tr. 5837, in camera). l 

). 

1270. Exide's concern about a potential r 

). (Gilespie, Tr. 5793,


5831, in camera). 

Response to Findine: No. 1270: 

Complaint Counsel's Finding No. 1270 is incorrect and misleading. For its response to 

this finding, Respondent incorporates its responses to Finding Nos. 1267-69. Further, Complaint 

Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie has proven 

not to be credible and his testimony is given no weight. Moreover, it is telling that Complaint 

Counsel offers no credible evidence to attempt to support this assertion. Complaint Counsel 

introduced no exhibits to support this proposed finding even though it had ample opportunity to 

do so. Complaint Counsel fails to support this proposed finding with any credible evidence. 

Complaint Counsel also mischaracterizes ~ 

) (RX00976, in camera, PX0728, in camera). r 

) (RX00976, in camera). l 

27
 
) (PX0728, in camera). l 

). 

1271. l 

) (Gilespie, Tr.


5798,5837, in camera; RX01720 at 019, in camera). Mr. Seibert agreed that all of 

Exide's l 

). (Seibert, Tr. 5699, in camera). Despite this, DaramIc is l 

). (Gilespie, 5803-5805, in camera).
 

Response to Findine: No. 1271: 

Complaint Counsel's Finding No. 1271 is misleading. For its further response to this 

finding Respondent incorporates its response to Findings Nos. 1267-70. Also, to the extent that 

Complaint Counsel cites to Gilespie's testimony to support its proposed finding, Gilespie has 

proven not to be credible and his testimony is given no weight. Moreover, it is telling that 

Complaint Counsel offers no credible evidence to attempt to support this assertion. Complaint 

Counsel introduced no exhibits to support Gilespie's testimony even though it had ample 

opportunity to do so. Complaint Counsel fails to support Gilespie's testimony with any credible 

evidence. 

~ 

). (Seibert, Tr. 5684, 5707, 5715, 5723, in camera; RX01685, in 

28 
camera). ~
 

). (Seibert, Tr. 5681, 5722, in camera). ~ 

)." (RXOI681, in camera).
 

Additionally, l 

). For example, ~
 

). (RXOI693, in camera; RX01680, in camera; RX01685, in camera; Seibert, Tr. 5681, 

5684, in camera). And ~ 

). (Toth, Tr. 5752, in camera).
 

1272. Mr. Gilespie testified that Exide is not l 

). (Gilespie, Tr. 5832, in camera). Mr. Gilespie testified that if

Exide was l 

) separators. (Gilespie, Tr. 5832, in camera). 

Response to Findine: No. 1272: 

29 
Complaint Counsel's Finding No. 1272 is inaccurate and contradicted by the weight of 

the evidence on the record. First, Complaint Counsel cites only Gilespie's testimony to support 

its proposed finding. Gilespie has proven not to be credible and his testimony is given no 

weight. Moreover, it is tellng that Complaint Counsel offers no credible evidence to attempt to i 

support this assertion. Complaint Counsel introduced no exhibits to support this proposed 

finding even though it had ample opportunity to do so. Complaint Counsel fails to support this 

proposed finding with any credible evidence. 

The facts, however, speak much louder and more truthfully than Mr. Gilespie's words: 

l 

). (RFOF 1538, in camera). l 

). (RFOF 1539, in camera). 

l 

). (RFOF 1549, 1552, in camera). l 

). 

30 
r 

). (Gilespie, Tr. 5836-37, in camera; RX01723 at 002, in
 

camera). ~
 

). (Gilespie, Tr. 5843; RXOI726).
 

Moreover, ~
 

). (RX01687 at 002, in camera). 

r 

). 

· Respondent's allegation in the first proffer that Exide's flare
 

"inconsistent with past order patterns" is not accurate because Exide r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1273. 2009 was not the first year that Exide l ). 

(Gilespie, Tr. 5806, 5833, in camera). In 2008, Exide l 

). (Gilespie, Tr.


5806, in camera). The reasoning for Exide's l 

). 

(Gilespie, Tr. 5806, 5833, in camera). Just as Exide l 

). (Gilespie, Tr. 5806, in camera).
 

Response to Findine: No. 1273: 

31 
Complaint Counsel's Finding No. 1273 is incorrect and misleading. First, Complaint 

Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie has proven 

not to be credible and his testimony is given no weight. Moreover, it is tellng that Complaint 

Counsel offers no credible evidence to attempt to support this assertion. Complaint Counsel 

introduced no exhibits to support this proposed finding even though it had ample opportunity to 

do so. Complaint Counsel fails to support this proposed finding with any credible evidence. 

~ 

). (Seibert, Tr. 5734-35, in camera). The Court finds that ~ 

). 

Additionally, Complaint Counsel mischaracterizes l 

). ~
 

) (RX00976, in camera, PX0728, in camera). l 

) (RX00976, in camera). l 

) (PX0728, in camera). 

1274. Mr. Seibert admitted that Exide's l 

32
 
) (Seibert, Tr. 5734, in camera). 

Response to Findine: No. 1274: 

Complaint Counsel's Finding No. 1274 is incorrect, misleading and unreliable. Mr. 

Seibert never admitted that l 

) as claimed by Complaint CounseL. Instead, Mr. Seibert testified to quite 

the opposite. Mr. Seibert testified that l 

) (Seibert, Tr.
 

5734, in camera). 

In fact, l 

). (RXOI698, in camera; Seibert, Tr. 5672, 

in camera). ~
 

). (RXOI699, in
 

camera; Seibert, Tr. 5672-73, in camera). ~ 

) (Seibert, Tr. 5674, in camera). 

Accordingly, ~
 

). (RXOI679, in camera;
 

RX01693, in camera). ~ 

33 
)." (RX01720 at
 

005, in camera). 

1275. As the findings above show, Exide's decision to l 

) was adopted long before the close of 
 the record on June 22, 2009. (CCFOF 1249 - 1251). l 

) (CCFOF 1252 - 1255). Exide wil also t 

). (CCFOF 1256 - 1257). 

Response to Findine: No. 1275: 

Complaint Counsel's Finding No. 1275, which unnecessarily and inappropriately 

summarizes and rehashes Complaint Counsel's previous proposed findings, is inaccurate and 

misleading, and draws false conclusions for the reasons set forth in Respondent's responses to 

Finding Nos. 1249-57, which Respondent incorporates herein. Such a "summary" finding 

should be disregarded in its entirety. 

1276. Exide has not placed orders for l ) worth of PE separators from Daramic because l 

). (CCFOF 1258 - 1259). Nor has it placed orders for r ) separators from Daramic because Daramic's l 

). (CCFOF 1260). Moreover, Exide's placement of l 

the record on June 22, 2009. (CCFOF 1261 ­ ) before the close of 


1266). 

Response to Findine: No. 1276: 

34
 
Complaint Counsel's Finding No. 1276 is incorrect, misleading and repetitive, and such a 

"summary" finding in inappropriate and should be disregarded in its entirety. For its response to 

this finding, Respondent incorporates its responses to Finding Nos. 1258-1266. Further, 

Respondent states that it consistently represented that l 

). In fact, Mr. Rikard,
 

counsel for Respondent, during the opening statements explicitly stated l 

) 

Complaint Counsel relies on mere semantics to confuse the issues before this Court and evade 

the truth of the matter - r
 

). (RFOF 1538, in camera).
 

l
 

). (Gilespie, Tr. 5836-37, 5843, in
 

camera; RX01726; RX01723 at 002, in camera). l 

). 

1277. Exide's decision to place l 

). (CCFOF 1267 - 1272). Exide told Daramic l 

). 

(CCFOF 1268). l
 

) (CCFOF 1273-1274).
 

Response to Findine: No. 1277: 

Complaint Counsel's Finding No. 1277 is incorrect, unreliable, misleading, and 

repetitive. For its response to this finding, Respondent incorporates its responses to Finding Nos. 

35
 
1267-1272, 1268, and 1273-1274. Complaint Counsel's "summary" finding in not appropriate 

and should be 
 disregarded in its entirety. 

B. Proffer #2 is not true 

· Respondent's allegation in the second proffer that "Exide does not intend to and wil 

not purchase any additional separators from Daramic in either r 1" is
 

not accurate because Exide intends on purchasing separators from Daramic in r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1278. Exide has informed Daramic that it intends to l 

). (Gilespie,
 

Tr. 5810, in camera). In fact, Mr. Gilespie testified that Exide expects to l 

). (Gilespie, Tr. 5825-5826, in camera).
 

Response to Findine: No. 1278: 

Complaint Counsel's Finding No. 1278 is incomplete, repetitive, and misleading. For its 

response to this finding, Respondent incorporates by reference is responses to Finding Nos. 1257 

and 1275 which fully responded to the same inaccuracies of Complaint Counsel. 

1279. Exide has consistently informed Daramic that it l 

). (Gilespie, Tr. 5864-5865, in
 

camera). Between July and October 2009, Mr. Gilespie l 

). (Gilespie, Tr. 5864, in
 

camera; RX01669 at 002, in camera (l )); RX01687
 

at 002, in camera). Moreover, on September 30,2009, Exide's CEO, Mr. Gordon 

Ulsh, informed Mr. Toth that l 

) (RX01704 at 001, in camera). 

Response to Findine: No. 1279: 

36 
Complaint Counsel Finding No. 1279 is inaccurate and misleading. In Finding No. 1279, 

Complaint Counsel relies heavily on the testimony of Gilespie. Gilespie has proven not to be 

credible and his testimony is given no weight. Further, as has often been the case, Complaint 

Counsel's rendition of 
 Gilespie's testimony is manipulated. Gilespie stated that ~ 

) 

(Gilespie, Tr. 5864, in camera) (emphasis added). ~ 

). 

Furthermore, ~
 

)." (Gilespie, Tr. 2965, in camera). ~ 

) (Gilespie, Tr. 3011, in camera; PXI028, in camera). ~ 

). (Hauswald, Tr. 1117, in camera; Roe, Tr. 1719-20, in camera).
 

~ ). First, Daramic is aware that r 

) (Seibert, Tr. 5661, in
 

camera; Gilespie, Tr. 3022-23, 3122-27, in camera; Weerts, Tr. 4486, 4521-23, in camera;
 

RX00303 at 002, in camera; RX00303, in camera; RX00304; RX00305; RX00306; RX00307). 

t 

37 
) (PX5076 at 17; RX01668, in camera). Now, ~ 

). 

Second, the idea that ~ 

) (Seibert, Tr.
 

5646-48, in camera; RX01721, in camera). ~ 

) (RX01721 at 002, in camera; Seibert, Tr. 5648, 5651, in 

camera). Following this, r 

) (Seibert, Tr. 5650, in camera).
 

~ 

) (RX01665 at 002­

003, in camera). In response, Daramic ~ 

) (RXOI713 at 003, in camera; Seibert, 

Tr. 5657, in camera). 

~ 

) (Seibert, Tr. 5652, in camera). r 

) (RXOI668, in camera; RX01669, in camera, Seibert, Tr. 5659­

38 
60, in camera; Gilespie, Tr. 5839, in camera). ~ 

) (Seibert, Tr. 5662­

63, 5666, in camera; Toth, Tr. 5749-50, in camera; RX01714 at 002, in camera; RX01718 at 

002, in camera). This included ~ 

) (Seibert, Tr. 5662-63, 5666, in camera; Toth, Tr. 5749-50, in camera; RX01714 at 002, 

in camera; RX01718 at 002, in camera). r ). 

~ 

) (Toth, Tr. 5749­

50,5756,5758-59, in camera) (emphasis added). ~ 

) (RXOI714, in camera; Toth, Tr. 5761-62, 

in camera). ~
 

) (RX01687 at 002, in camera; Toth, Tr. 

5760-61, in camera; PX5075 at 007, in camera). r 

) 

(Seibert, Tr. 5690-91, in camera). ~ ) (Toth, Tr. 5762­

63, in camera; RX01693, in camera; RX01712, in camera; Seibert, Tr. 5691, in camera; 

Gilespie, Tr. 5854-55, in camera). ~ 

39
 
) (Toth, Tr. 5762-63, in camera; RX01693, in camera; RX01712, in camera; Seibert, 

Tr. 5691, in camera; Gilespie, Tr. 5854-55, in camera). 

r 

) (RXOI704, in camera; Gilespie, Tr. 5838, in camera; Toth, Tr. 5749-51, 

5756,5758-59, in camera; PX5076 at 17; RX01668, in camera). ~ 

). 

1280. l 

) (RX01687
 

at 002, in camera; Gilespie, Tr. 5812-5813, in camera). 

Response to Findine: No. 1280: 

Complaint Counsel Finding No. 1280 is false and misleading. Again, Complaint Counsel 

attempts to show ~ ) when no such thing exists. ~ 

.) (RXOI687, in camera). ~
 

) (RXO 1687 at 002, in
 

camera; Seibert, Tr. 5686, in camera; Gilespie, Tr. 5852-53, in camera). ~ 

), Gilespie has 

proven not to be credible and his testimony is given no weight. 

40 
~ 

) (Seibert, Tr. 5687, in camera; RX01687, in camera). r 

) (RX01678 at 003, in 

camera). r 

.) (PX5076 at 29, in camera). This is, by no means, an even trade. 

~ 

) (Toth, Tr. 5756-59,5761­

62, in camera, RX01678, in camera). ~ 

) (RXOI687, in camera; RX01714, in camera; Toth, Tr. 5761-62, in camera). 

~ 

) (RXOI687, in camera). 

· Respondent's allegation in the second proffer that "Exide does not intend to and wil 

not purchase any additional separators from Daramic in either r 1" is
 

not accurate because Exide offered r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

41
 
1281. In October 2009, after Daramic l 

). (Gilespie, Tr. 5815, in camera). A purchase order is a "firm 

commitment" and "by definition" is also a contract. (Gilespie, Tr. 5815, 5865-5866, 

in camera). Mr. Gilespie testified that Exide l 

). (Gilespie, Tr. 5815-5816, in camera). According to Mr. Gilespie, Daramic's immediate response was that it l 

). 

(Gilespie, Tr. 5865-5866, in camera). 

Response to Findine: No. 1281: 

Complaint Counsel Finding No. 1281 is inaccurate and misleading. First, Complaint 

Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie has proven 

not to be credible and his testimony is given no weight. Moreover, it is tellng that Complaint 

Counsel offers no credible evidence to attempt to support this assertion. Complaint Counsel 

introduced no exhibits to support this proposed finding even though it had ample opportunity to 

do so. Complaint Counsel fails to support this proposed finding with any credible evidence. 

Second, r 

) 

(RXOI687, in camera). r 

) (RX01678 at 003, in camera). r 

) (Seibert, Tr. 5690-91, in camera; Toth, Tr. 5762-63, in
 

camera; RX01693, in camera; RX01712, in camera; Gilespie, Tr. 5854-55, in camera; see also 

Response to Finding No. 1280). 

42
 
~ 

) (Gilespie, Tr. 5870, in camera). ~ 

) 

(RXOI693, in camera)(emphasis added). 

~ 

) (RXOI693, in camera; see also
 

RX001685 ("r 

)."), in camera). ~ 

) (Seibert, Tr. 5645, in
 

camera). r 

) (Seibert, Tr. 5652, 5720, in camera;
 

RFOF1576, 1584, in camera). 

1282. Mr. Seibert later wrote to Mr. Gilespie on October 20, 2009, that l 

) (RX01693 at 002, in camera). Mr. Seibert confirmed that

Mr. Gilespie had l 

). (Seibert, Tr. 5712, in camera). Mr. Seibert's letter to Mr. Gilespie l 

). (Gilespie, Tr. 5870-5871, in camera; RX01693 at 002, in camera). 

Response to Findine: No. 1282: 

43 
Complaint Counsel Finding No. 1282 is inaccurate, incomplete and misleading. In 

response to this Finding, Respondent incorporates its response to Finding No. 1281.
 

Additionally, Complaint Counsel heavily relies on only Gilespie's testimony to support its 

proposed finding. Gilespie has proven not to be credible and his testimony is given no weight. 

~ 

) (Toth, Tr. 5737-40, in
 

camera, 5747-48, in camera; Seibert, Tr. 5645, in camera). ~ 

) (Toth, Tr. 5737-40, in
 

camera, 5747-48, in camera; Seibert, Tr. 5645, in camera). l 

) (Seibert, Tr.
 

5660, in camera; RX01119, in camera; Hauswald, Tr. 1118; Gilespie, Tr. 3126, in camera; 

RX01120, in camera). 

~ 

) (Seibert, Tr. 5711, in camera). ~ 

) (RFOF 1519, in 

camera). ~
 

) (Seibert, Tr. 5652, 5720, in camera, RFOF 1576, 1584, in camera). ~
 

44
 
) (Gilespie, Tr. 3017, in camera).
 

~ 

(RX01693 at 002, in camera). ~ 

) 

(RX01693 at 002, in camera). ~ 

). (RX01693 at 002, in camera). r 

) 

· Respondent's allegation in the second proffer that Exide wil have r 1 

of separators is not accurate because Daramic r 

1 to Exide 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1283. Exide wil not have l 

") (Gilespie, Tr. 5860, in camera). Daramic has not agreed to l 

). (Gilespie, Tr. 5799, 5860, in camera). Daramic has not even l 

) (Seibert, Tr. 5707, in camera). To date, Exide has l 

). (Seibert Tr. 5707­

5708, in camera; PX5076 (Seibert, Dep. at 51), in camera; Gilespie, Tr. 5799, in 

camera). 

Response to Findine: No. 1283: 

45 
Complaint Counsel's Finding No. 1283 is incorrect, misleading and repetitive. For its 

further response to this finding Respondent incorporates its response to Findings Nos. 1267­

1271. Respondent also states that l 

). (Seibert, Tr. 5681, 5722, in camera). 

1284. The total amount of l 

). (Gilespie, Tr. 5799, in camera).
 

Response to Findine: No. 1284: 

Complaint Counsel's Finding No. 1284 is incorrect and misleading. For its fuher
 

response to this finding Respondent incorporates its response to Finding Nos. 1267-1271 and 

1283. Respondent also states that ~ 

). (Seibert, Tr. 5681, 5722, in camera).
 

Moreover, Gilespie, not Respondent, determined that l 

). (RFOF 1540, in camera). 

When confronted about ~ 

). (Gilespie, Tr. 5849, in camera).
 

1285. Mr. Seibert testified that it would be r
 

46
 

- ., 
) (Seibert, Tr. 5714-5715, in camera; RX01685 at 

001, in camera). Mr. Seibert confirmed at his deposition that it would be l 

). (PX5076 (Seibert, Dep. at 38), in camera). 

Response to Findine: No. 1285: 

Complaint Counsel's Finding No. 1285 is misleading and irrelevant. Complaint Counsel 

focuses on semantics debating whether l 

). (RFOF 1547, in camera). l 

). (Seibert, Tr. 5681, 5722, in camera). 

1286. Mr. Seibert did not know whether or not Daramic would l 

). (Seibert, Tr.
 

5720, 5722, in camera). When asked at his deposition whether r 

) (PX5076 (Seibert, Dep. at 53), in camera). 

Response to Findine: No. 1286: 

Complaint Counsel's Finding No. 1286 is misleading and clearly misstates Mr. Seibert's 

testimony. Daramic has made l 

). (Seibert, Tr. 5681, 5722, in camera). The sole reason Mr. Seibert does not know 

l 

) (Seibert, Tr. 5720, in camera). When asked these same questions at his deposition, 

47 

- ., 
Mr. Seibert testified l 

) (PX5076 (Seibert, Dep. at 94), in camera). 

Moreover, Complaint Counsel completely misconstrues Mr. Seibert's deposition 

testimony implying that l 

). In fact, Mr. Seibert's complete testimony states that l 

) (PX5076
 

(Seibert, Dep. at 53), in camera). This statement is consistent with l 

). (See Respondent's
 

Response to Finding Nos. 1267-1271 and 1283-1284). 

1287. On October 20, 2009, Daramic reiterated that it l 

) (RX01693 at 001-002, in camera). 

Response to Findine: No. 1287: 

Complaint Counsel's Finding No. 1287 is incorrect. t 

). (Seibert, Tr. 5681, 5722, in camera). ~ 

48
 
)." (RX01720 at 005, in camera). ~ 

). (Seibert, Tr. 5674, in camera). l 

). (RFOF 

1545-46, in camera). 

1288. l 

) (Seibert, Tr. 5672-5673, 5707, in camera). 

Response to Findine: No. 1288: 

Complaint Counsel's Finding No. 1288 is misleading. Complaint Counsel ignores that 

l 

). (RFOF 1529, in 

camera). l 

). (FOF 1541, in camera). l 

). 

(RFOF 1529, 1541, in camera; Seibert, Tr. 5672-73, in camera). In addition, l 

49 

., 
).
 

(RFOF 1541-1542, in camera). 

1289. As the findings above show, Exide has told Daramic it intends to t 

). 

(CCFOF 1254 - 1257, 1278-1280). Exide also l 

). (CCFOF 1281 ­ 1282). l ) (CCFOF 1281 - 1282).
 

Response to Findine: No. 1289: 

Complaint Counsel's Finding No. 1289, which unnecessarily and inappropriately 

summarizes and rehashes Complaint Counsel's previous proposed findings, is inaccurate and 

misleading, and draws false conclusions for the reasons set forth in Respondent's responses to 

Finding Nos. 1254-57, 1278-1282, which Respondent incorporates herein. Such a "summary" 

finding should be disregarded in its entirety. Furher, Complaint Counsel's proposed findings, 

summarized in its Finding No. 1289, are contradicted by the clear evidence in the record. r 

) (RX01687 at 002, in camera; Seibert, Tr. 5686, in camera; 

Gilespie, Tr. 5852-53, in camera). ~ 

) (Seibert,
 

Tr. 5687, in camera; RX01687, in camera). ~ 

) (RX01678 at 003, in camera). ~ 

50 

- ., 
) Contrary to Complaint Counsel's
 

assertion, ~
 

) 

~ 

) (RXOI704, in camera; Gilespie, Tr. 5838, in camera; Toth, Tr. 

5749-51,5756,5758-59, in camera; PX5076 at 17; RX01668, in camera). Tellngly, however, ~ 

). (RFOF
 

1540-43, 1553, 1601-02). ~
 

) 

Complaint Counsel's assertion regarding ~ 

) is without basis II fact and demonstrates
 

Exide's gamesmanship. The reality surounding r 

) (Gilespie, Tr. 5870, in camera). In response to ~
 

51 

- ., 
) 

(RXOI693, in camera). 

Despite Daramic' s ~ 

) (RXOI693, in
 

camera; see also RXOO 1685 (" ~ 

)."), in camera). t 

) 

(Seibert, Tr. 5645, in camera). In fact, ~ 

.) (Seibert, Tr. 5690-91, in camera). 

1290. Exide wil not receive l
 

). (CCFOF 1283 - 1287). Daramic has agreed to l
 

). (CCFOF 1283, 1286-1288). The l
 

). (CCFOF 1284). l
 

) (CCFOF 1288). 

Response to Findine: No. 1290: 

52 

-- .. 
Complaint Counsel's Finding No. 1290 is misleading, incorrect, repetitive, and 

unreliable. Such a "summary" finding is inappropriate and should be disregarded in its entirety. 

For its further response to this finding, Respondent incorporates its responses to Finding Nos. 

1283-1288. 

C. Proffer #3 is not true 

· Respondent's allegation in the third proffer that Exide has decided not to purchase PE

separators from Daramic in r 1 is not accurate because Exide r 1
 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1291. l ) (See
 

CCFOF 1252 - 1257). 

Response to Findine: No. 1291: 

Complaint Counsel's Finding No. 1291, which unnecessarily and inappropriately 

summarizes and rehashes Complaint Counsel's previous proposed findings, is inaccurate and 

misleading, and draws false conclusions for the reasons set forth in Respondent's responses to 

Finding Nos. 1252-57, which Respondent incorporates herein. Such a "summary" finding 

should be disregarded in its entirety. 

· Respondent's allegation in the third proffer that Daramic' s decision to r 

1 is based on Exide's "apparent decision not to purchase PE 

separators from Daramic in r 1" is not accurate because Daramic has been
 

r

-i 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

53 
1292. Polypore, through its corporate finance personnel and its Daramic business unit, has 

been l 

). (PX5075 (Toth, Dep. at 8-9), in camera; 

Toth, Tr. 5775-5777, in camera). Mr. Toth, Polypore's CEO recalled discussing that 

with Complaint Counsel a year and a half earlier. (PX5075 (Toth, Dep. at 9), in 

camera; Toth, Tr. 5775-5777, in camera). 

Response to Findine: No. 1292: 

Complaint Counsel's finding number 1292 is inaccurate, misleading, and contrary to the 

credible testimony of Bob Toth, Polypore's President and Chief Executive Officer. While Toth 

admits ~
 

), (Toth, Tr. 5776, in camera; PX5075 (Toth, Dep. at 8-9), in 

camera), Toth's uncontradicted testimony makes it clear that ~ 

). (Toth, Tr. 5776, 5737-38, in
 

camera; RFOF 1555, in camera). At that time, ~ 

). (Toth, Tr. 5776, in camera; RFOF 1555, 1611, in
 

camera). ~
 

). (RFOF 1555, 1611, in camera; Seibert, Tr. 5692-94, in camera). 

Complaint Counsel has proffered no contrary evidence and Toth's testimony at the hearing on 

November 12, 2009 went uncontradicted by Complaint Counsel. (RFOF 1554). 

1293. Daramic is t 

). (Seibert, Tr. 5692-5693, in camera). l 

) (Seibert, Tr. 5693, in camera). 

54 
Response to Findine: No. 1293: 

Complaint Counsel's finding number 1293 is incomplete and misleading. Complaint 

Counsel fails to mention that t 

). (RFOF 1613, 1616, in camera). The evidence shows that ~ 

). 

(RFOF 1608, 1597-1605, 1549-1550, 1622, 1627, in camera; Seibert, Tr. 5723 ("~ 

)."), in camera). ~ 

). (RFOF 1610, in camera). 

1294. Polypore was always t
 

) (RX01692 at 001-002, in camera). In analyzing its 

options l 

) (Seibert,
 

Tr. 5693, in camera). 

Response to Findine: No. 1294: 

Complaint Counsel's finding number 1294 is inaccurate and misleading, and takes 

testimony out of its proper context to serve the specific needs of Complaint CounseL. As 

previously stated, r 

). (See Respondent's Response to Finding No. 1292). ~
 

). (RFOF 1616, in 

camera). ~
 

55 
),
 

(RFOF 1558, in camera), Complaint Counsel speculates that l 

). (RX01692 at 001-002, in camera). Complaint Counsel
 

overlooks the fact that ~ 

). (RFOF
 

1558, in camera; see also RX01692 at 002 U )), in
 

camera; Seibert Tr. 5693 (~ 

)), in camera). More significantly, 

Complaint Counsel's speculation ignores the fact that ~ 

). (RXOI692 at 005, in camera; Toth, Tr. 5765-66, in camera). The evidence is clear that 

~ 

L (RFOF 1617, in 

camera) - ~
 

). (RFOF 1601-03, in camera). Complaint Counsel's proposed finding is mere 

speculation. 

1295. The assessment of l 

) (Toth, Tr. 5777, in camera). Daramic has two large North American 

separator plants - Corydon and Owensboro - l 

) (Toth, Tr. 5737,


in camera). t 

) (Toth, Tr. 5737, in camera).
 

Response to Findine: No. 1295: 

56 
Complaint Counsel's finding number 1295 is incomplete and misleading. Complaint 

Counsel fails to mention that l 

). (RFOF 1613, 1616, in camera). As Toth explained at the November 12, 

2009 hearing, "~ 

)." (Toth,
 

Tr. 5737, in camera). 

1296. With regard to the former Microporous facilty located in Piney Flats, TN, Daramic's 

third North American separator facility, that plant is operating l 

). (Toth, Tr. 5777-5778, in camera). Mr. Toth had l 

). (Toth, Tr. 5777, in
 

camera). 

Response to Findine: No. 1296: 

Complaint Counsel's finding number 1296 is incomplete and misleading. ~ 

). (Seibert, Tr. 5693, in
 

camera; PX5075 (Toth, Dep. at 40), in camera). 

1297. Neither Mr. Toth nor Mr. Seibert ever testified that the reason ~
 

(
 

). (See generally, Toth, Tr. 5737-5782,
 

in camera; Seibert Tr. 5643-5735, in camera). ~ 

) (Toth, Tr. 5748, in
 

57 
camera; see also Polypore Opening Statement, Tr. 5610 l 

) 

Response to Findine: No. 1297: 

Complaint Counsel's finding number 1297 is false and takes testimony out of its proper 

context to serve the specific needs of Complaint Counsel. ~ 

). (RFOF 1556, in 

camera). The evidence is clear that ~ 

). (RFOF
 

1558, in camera). In fact, the evidence shows that ~ 

). (RFOF 1613, in camera). For this reason, ~ 

). (Toth Tr, 5737-39,
 

5741, in camera; RFOF 1557-58, 1560, 1567, 1569-70, 1576-84, in camera). For example, 

). (Toth, Tr. 5739, in camera; see also RFOF 1610, in camera). Furher, 

~ 

58 

l 
). (Toth, Tr. 5743-44, 5747-49, in camera; see generally RFOF 

1554-1595). r 

). (Seibert, Tr.
 

5718-19, in camera). 

Finally, ~
 

). (RFOF 1610, in
 

camera). Thus, the evidence and uncontradicted testimony of both Toth and Seibert make clear 

that ~
 

). (RFOF 1616, in camera). 

1298. l 

) (Toth, Tr. 5747-5748, in camera). l 

) (Toth, Tr. 5748, in camera). l
 

) (Toth, Tr. 5748-5749, in camera).
 

Response to Findine: No. 1298: 

59 
Complaint Counsel's finding number 1298 is inaccurate. Moreover, Complaint Counsel 

has improperly added language in support of its incorrect interpretation of Toth's testimony in 

order to serve the specific needs of Complaint CounseL. Toth's complete testimony is as follows: 

" ~
 

)." (Toth, Tr. 5748, in camera). Toth's testimony is
 

consistent with the evidence in the record showing that ~ 

). (See Respondent's
 

Response to Finding No. 1297). Quite simply, the record is clear that r 

). (RFOF
 

1606-1610, in camera). 

1299. Mr. Seibert testified that Daramic l
 

) (Seibert, Tr. 5694, in camera). l
 

) (Seibert, Tr. 5645, in camera). l 

)3 (Seibert, Tr. 5694, in camera). This is, as Mr. Seibert confirmed on the 

stand, because Daramic needed to l ) 

(Seibert, Tr. 5718-5719, in camera).4 

Response to Findine: No. 1299: 

Complaint Counsel's finding number 1299 is inaccurate, misleading and speculative. 

Complaint Counsel again mischaracterizes testimony and takes testimony out of context in order 

3 That Mr. Seibert singles out Daramic's ( 

) 4 Mr. Seibert evaded this question at trial and had to be impeached with his deposition testimony, which he finally 

adopted. (Seibert, Tr. 5717-5719, in camera). 

60 
to create a "fact". In this instance, Complaint Counsel ignores Seibert's testimony that ~ 

). (Seibert, Tr. 5718-19, in camera). Far 

from being impeached as Complaint Counsel suggests, the record fully supports Seibert's 

testimony. l 

). (RFOF 1611, in camera). r 

). (RFOF 1612, in camera). 

~ 

). (RFOF 1613, in camera). ~ 

). (RX01692 at 005, in 

camera; RFOF 1562, in camera; Toth Tr. 5765-66, in camera). The evidence is clear that ~ 

), (RFOF 1617, in 

camera) - ~
 

). (RFOF 1601-03, in camera). In fact, ~ 

). (RFOF 1517-19, 1525, 1557-59, 1563-67, 1569-71, 1582-83, in 

camera). ~
 

61
 
). (RFOF 1512-1515, 1522-23, 1528, 1539-40,
 

1585-88, 1594-95, 1597-99, 1601-1602, 1621-22, in camera). Thus contrary to Complaint
 

Counsel's incorrect assertion, ~ 

). (RFOF 1610, 1589,
 

1616-17, in camera). 

Finally, Complaint Counsel's hollow attempt to suggest that ~ 

). (See, e.g., RFOF 151-159,178-180,939-940, 1066, 1093, 1098,
 

in camera). Contrary to Complaint Counsel's contention, ~
 

). (Toth, Tr. 5765-66, in
 

camera; RFOF 151-159,178-180, 939-940, 1066, 1093, 1098, in camera). Instead,
 

~ 

62
 
). (Toth, Tr. 5765-66, in camera). ~
 

). (Toth, Tr. 5765-66, in camera).
 

1300. Regardless of Exide's t 

). 

(Seibert, Tr. 5718-5719, in camera). When asked what the l 

) 

(PX5076, Seibert Dep. at 84-85, in camera). 

Response to Findine: No. 1300: 

Complaint Counsel's finding number 1300 is inaccurate, misleading, speculative, and 

mischaracterizes the trial and deposition testimony of Harry Seibert. ~ 

) and Complaint Counsel 

improperly cites his testimony for this inaccurate premise. (See Seibert, Tr. 5718-5719, in 

camera). Seibert has consistently testified, both at the November 1-2, 2009 hearing and during 

his October 27,2009 deposition, ~ 

). (Seibert, Tr. 5718-5719, in camera; PX5076 (Seibert Dep. at 81, 84­

85), in camera). Instead, ~ 

). (Seibert, Tr. 5716-17, in camera; PX5076 (Seibert Dep. at 81, 84-85), in 

camera; see also RFOF 1610, in camera; Respondent's Response to Finding No. 1299). 

63 
1301. When asked at his deposition whether Daramic might decide not to t 

) 

(PX5076 (Seibert, Dep. at 81), in camera). 

Response to Findine: No. 1301: 

Complaint Counsel's finding number 1301 is inaccurate, misleading, speculative, and 

mischaracterizes the deposition testimony of Harry Seibert. As Complaint Counsel's proposed 

finding ilustrates, Mr. Seibert testified that at the time of his deposition, ~
 

) ." 

(PX5076 (Seibert, Dep. at 81), in camera). ~ 

). (RFOF 1610, in camera; see 

also Respondent's Response to Finding Nos. 1299-1300). 

1302. Mr. Toth confirmed that even if l 

). (PX5075 (Toth, Dep. at 58-59), in camera). 

Response to Findine: No. 1302: 

Complaint Counsel's finding number 1302 is inaccurate, misleading, and calls for 

speculation. As Toth himself pointed out, ~ 

64
 
). 

(PX5075 (Toth, Dep. at 58-59), in camera; Toth, Tr. 5778-79, in camera). Setting aside 

Complaint Counsel's irrelevant speculation, the record is clear that ~ 

). (RFOF 1596-1605,
 

in camera). 

1303. Moreover, Daramic refused to even consider l 

). (RX01693 at 002, in camera; Seibert, Tr. 5712, in camera). 

Response to Findine: No. 1303: 

Complaint Counsel's finding number 1303 is inaccurate and misleading. The evidence in 

the record is clear that ~ 

). (Gilespie, Tr. 5870, in camera; RX01693 at 002 ("~
 

)."), in camera; 

RX01685 ("~ 

)."), in camera). In fact, ~ 

)." (Seibert, Tr.
 

5645, in camera). 

1304. Polypore's internal documents reiterate that l 

). (RX01692 at 001-002, in camera). 

Response to Findine: No. 1304: 

65 
Complaint Counsel's finding number 1304 is false and misleading. Moreover, Complaint 

Counsel's proposed finding is not supported by the evidence cited. ~ 

). (RX01692 at 001-002, in camera; RFOF 1558, in camera).
 

~ 

). (RFOF 1558 U
 

)), in camera; RXO 1692 at 002 (~ 

)), in camera; Seibert, Tr. 5693 (~ 

)"), in camera). Complaint Counsel's proposed finding is mere speculation. 

1305. Polypore anticipated a t 

). (RX01692 at 002, in camera). Polypore believes that there is l ). (RXO 1692 at


002, in camera). Yet, under all scenarios, l 

). (RX01692 at 002, in camera). 

Response to Findine: No. 1305: 

Complaint Counsel's finding number 1305 is misleading and speculative. In its response 

to Complaint Counsel's finding, Respondent incorporates by reference its response to Finding 

Nos. 1294 and 1304. First, this finding completely ignores the testimony of Seibert which 

provides: "~
 

)." (PX5076 (Seibert, Dep. at 49), in 

camera). Furhermore, there is ample evidence in the record showing that ~ 

66
 
). (RFOF 1594­

95, in camera). ~ 

). (RFOF 1597-98, in camera). ~ 

). (RFOF 1599, in camera). Finally, t 

). (RFOF 1600-01, in camera). Thus regardless of Complaint Counsel's 

speculation, the facts are clear that ~ 

). (RFOF 1603, 1610, in camera). 

1306. In fact, even under the l
 

). (RX01692 at 002, in camera).
 

Response to Findine: No. 1306: 

Complaint Counsel's finding number 1306 is misleading and speculative. In its response 

to Complaint Counsel's finding, Respondent incorporates by reference its response to Finding 

Nos. 1294 and 1304-05. Moreover, Complaint Counsel's own witness makes clear that ~ 

67
 
). (Gilespie, Tr. 5826-27,
 

5839, in camera). Complaint Counsel's proposed finding is mere speculation and should be 

disregarded. 

1307. As the findings above make clear, Exide's PE separator purchasing decision for 

l 

). 

(CCFOF 1292 - 1295, 1297 - 1306). l 

) (CCFOF 1292). The reasons Polypore decided to l 

) (Toth, Tr. 5737; 5747-5748, in camera). 

Response to Findine: No. 1307: 

Complaint Counsel's finding number 1307 is inaccurate, misleading, speculative, and 

takes testimony out of its proper context to serve the specific needs of Complaint CounseL. In its 

response to Complaint Counsel's finding, Respondent incorporates by reference its response to 

Finding Nos. 1292-1295 and 1297-1306. The record is replete with evidence demonstrating that 

~ 

). (RFOF 1613, 1616, 1610 in camera). Moreover, Toth's
 

uncontradicted testimony makes it clear that ~ 

). (Toth, Tr. 5776, 5737-38, in camera; RFOF 

1555, in camera). Complaint Counsel's Proposed Findings 1292 - 1295 and 1297 - 1306 are 

without evidentiary support and are pure conjecture. 

68 
1308. t 

) (CCFOF 1253 - 1255, 1305­ 1306,1309-1311). l 

) (CCFOF 1304
 

- 1305). l 

) (CCFOF 1304­

1306). 

Response to Findine: No. 1308: 

Complaint Counsel's Finding No. 1308 is incomplete and misleading, and as a repetitive, 

irrelevant "summary" finding it should be disregarded in its entirety. In its response to 

Complaint Counsel's finding, Respondent incorporates by reference its response to Finding Nos. 

1292-1295 and 1297-1306. Complaint Counsel's finding ignores the fact that ~ 

). (RFOF 1602-04, in camera). In stark opposition to Complaint Counsel's claim 

~ 

). (RFOF
 

1599, in camera). In addition, ~ 

). (RFOF 1604, in camera). Thus, ~ 

). (RFOF 1602, in camera; Gilespie, Tr. 5851, in camera). ~ 

). (RFOF 1613, 1616, 1610 in camera). 

D. Proffer #4 is not true
 

69
 
· Respondent's allegation in the fourh proffer that it "appears unlikely" that Daramic 

wil "retain any small amount of business from Exide in ~ ), or thereafter" is not
 

accurate because Daramic anticipates supplying Exide in ~ ) with or without a
 

contract 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1309. Polypore expects that Exide wil continue purchasing PE separators from Daramic in
 

2010, after the NASA expired. l 

) Rather, Mr.
 

Toth, reported to Polypore's investors, to whom he has a duty to be truthful, that 

Daramic anticipates maintaining a supply position with Exide with or without a 

contract. (Toth, Tr. 5769, in camera; Seibert, Tr. 5724). When confronted with the 

statement, Mr. Toth testified that it "sounds like something I would have said." 

(Toth, Tr. 5769, in camera). 

Response to Findine: No. 1309: 

Complaint Counsel's Finding No. 1309 is inaccurate and misleading. ~ 

). (RFOF 1603,
 

in camera). ~
 

) .
 

(RFOF 1604, in camera). Although Complaint Counsel again attempts to mischaracterize Toth's 

testimony, Toth's uncontradicted testimony makes clear that ~ 

). (Toth, Tr. 5768-69, in
 

camera; RFOF 1567, 1571-75, in camera). ~ 

). (Seibert, Tr. 5724, in camera). ~ 

70 
). (RFOF 1596-1605, in camera). 

1310. l 

) (Seibert, Tr. 5729-5730, in camera). l
 

) (RX01692 at 002, in camera). l
 

) (RXO 1692 at 002, in

camera). 

Response to Findine: No. 1310: 

Complaint Counsel's Finding No. 1310 is incomplete, misleading, speculative and it 

should be disregarded in its entirety. In its response to Complaint Counsel's finding,Respondent 

incorporates by reference its response to Finding Nos. 1304-1308. As previously indicated, 

~ 

). (PX5076 (Seibert, Dep. at 49), in camera). Additionally, 

t 

). The evidence in the record makes clear that ~ 

). (RFOF 1603, 1610, in camera; Seibert, 

Tr. 5723 (" ~ ) ."), in 

camera). 

1311. Moreover, Exide has informed Daramic that they intend on l 

). (Gilespie, Tr. 5810,
 

in camera; see also PX5076 (Seibert, Dep. at 74), in camera). 

71 
Response to Findinl! No. 1311: 

Complaint Counsel's Finding No. 1311 is incomplete, repetitive and misleading. For its 

response to this finding, Respondent incorporates by reference is responses to Finding Nos. 1257 

and 1275.
 

· Respondent's allegation in the fourth proffer that for Daramic to "retain any small 

amount of business from Exide in r 1. or thereafter" it "wil only be able to 

obtain such sales through a r 1" is not accurate because Daramic
 

has never offered Exide r 1
 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1312. l 

) (See


generally, CCFOF 1069-1078). 

Response to Findine: No. 1312: 

Complaint Counsel finding 1312 is incorrect, incomplete and misleading. Again, 

Complaint Counsel ignores the clear evidence that has been presented at trial, and opts to 

disregard the facts that are in contrast to their version of events. ~ 

). 

~ 

) (Gilespie, Tr. 3011, in camera;
 

PXI028, in camera). ~ 

)." (Gilespie, Tr. 2965, in camera). At the time, t
 

72 
) (Gilespie, Tr. 3017, in camera). Furthermore, r 

). (Roe, Tr. 1718, in camera; Hauswald, Tr. 1170-71, in camera).
 

Additionally, ~
 

). (See
 

Respondent's Response to Finding No. 1069). r 

(Roe, Tr. 1718-19, in camera). 

~ 

) (RXOI713, in camera;
 

RX01714, in camera). It has been made unequivocally clear ~ 

) (Toth, 5742-43, in
 

camera; RX0172 at 001, in camera). Most importantly, ~ 

) (RX01668 at 002, in camera; Seibert, Tr. 5734, in camera). 

1313. Mr. Seibert was unable to testify as to l 

). (Seibert, Tr. 5722, in camera). Mr. Seibert could

not testify as to l 

) (PX5076 (Seibert, Dep. at 101), in camera). Mr. 

Seibert confirmed at trial that he did not know what l 

73 
). (Seibert, Tr. 5726, in camera).5 Mr. Seibert was

unable to even confirm that Daramic would l 

). (Seibert, Tr. 5725, in camera). Mr. Seibert

could not testify about anything less than ~ 

) (Seibert, Tr. 5725, in camera). 

Response to Findine: No. 1313: 

Complaint Counsel Finding No. 1313 mischaracterizes the record. In this response 

Respondent incorporates its response to Finding No. 1327. Seibert's testimony referenced by 

Complaint Counsel in Finding No. 1313 ~ 

). (Seibert, Tr. 5725 - 26, in camera). ~ 

) (Seibert, Tr. 5726, in camera;
 

PX5076 (Seibert, Dep. at 101), in camera). ~ 

) (Seibert, Tr. 5726, in camera;
 

PX5076 (Seibert, Dep. at 101), in camera). 

Furthermore, it is unrefuted that Daramic r 

) (RFOF 1521, in camera). ~ 

) (RXO 1668 at 002, in camera; Seibert, Tr. 

5 Mr. Seibert evaded this question at trial and had to be impeached with his deposition testimony, which he finally 

adopted. (Seibert, Tr. 5725-5726, in camera). 

74 
5734, in camera). ~ 

) (RFOF 1523; Seibert, 

Tr. 5733-34, in camera). 

1314. Mr. Seibert testified that Daramic had not even resolved whether it would l 

). (PX5076 (Seibert, Dep. at 101), in camera). 

Response to Findine: No. 1314: 

Complaint Counsel Finding No. 1314 mischaracterizes the record as Respondent has 

il ustrated in its response to Finding No. 1313. 

1315. Daramic has not considered what 

). (Seibert, Tr. 5723, in
 

camera). If Exide does not l 

). (PX5076 (Seibert, Dep. at 96), in camera). Mr. Seibert testified that the possibility that Exide would l 

) (PX5076 (Seibert, Dep. at 96), in camera). While Mr. Seibert testified that l 

). (Gilespie, Tr. 5814-5815, in camera). 

Response to Findine: No. 1315: 

Complaint Counsel Finding No. 1315 is misleading and mischaracterizes the record. See 

Response to Finding No. 1313, incorporated herein. l 

) (Seibert, Tr. 5722-23, in camera).
 

~ 

) (Seibert, Tr. 5723, in camera). ~ 

) (Seibert, Tr. 5723, in camera). ~ 

75 
) (Gilespie, Tr. 5814 - 15, in camera). Gilespie has proven not 

to be credible and his testimony is given no weight. 

~ 

)." (Seibert, Tr. 5645, in camera).
 

· Respondent's allegation in the fourth proffer that for Daramic to "retain any small 

amount of 
 business from Exide in r ), or thereafter" it "wil only be able to obtain 

such sales through a r 1" is not accurate because Daramic
 

) 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1316. l 

) (See e.g., RXOI713-003, in camera 

l 

); see also RX01666 at 002, in camera; RX01667 at 002, in camera; RX1668 at 02, in camera; 

RXO 1683 at 001, in camera; RXO 1718 at 002, in camera; RXO 1714 at 002, in 

camera). 

Response to Findine: No. 1316: 

Complaint Counsel Finding No. 1316 is incorrect, inaccurate and incomplete. ~ 

) (See Respondent's Response to Finding
 

No. 1279). ~
 

(RFOF 1505-1510, in camera). ~ 

76 
) (Seibert, Tr. 5650, in camera; RX01665, in camera). 

~ 

) (RFOF
 

1513, in camera). l 

) (RXOI713 at 002, in camera). 

~ 

) (RXO 1667 at 002, in camera; Seibert, Tr. 

5670, in camera). ~ 

) (RFOF 1523, in 

camera; Seibert, Tr. 5733-34, in camera). r 

) (RX01668 at 002, in camera; Seibert, Tr. 5659-60, in 

camera; Gilespie, Tr. 5839, in camera). 

Moreover, ~
 

) (Toth, Tr. 5750-51, in camera). ~
 

) (RFOF 1586-92, in 

camera). l 

) (RXOI714, in camera; Toth, 

Tr. 5761-62, in camera).r 

) (RX01687 at 002, in camera; Toth, Tr. 5761-62, in 

77 
camera). l 

). (RFOF 1565-66,
 

in camera). t 

) (Toth, Tr. 5746-47, in camera). ~ 

) (RFOF 1528, in 

camera). 

1317. As recently as October 1, 2009, Daramic understood that l 

) (Toth, Tr.


5749-5750, in camera). Despite that understanding, Daramic, l 

). (Toth, Tr. 5750-5751, in camera; Seibert,


Tr. 5663-5664, in camera; see also RX01714 at 001-003, in camera (l 

D). 

Response to Findine: No. 1317: 

Complaint Counsel Finding No. 1317 is incomplete, inaccurate, misleading and 

misrepresents the evidence. (See Respondent's Response to Finding No. 1316). Again, 

Complaint Counsel ignores the facts that are in contrast to their position and, instead, paints an 

inaccurate and incomplete picture. ~
 

) (Toth, Tr. 5749-50, in camera). ~ 

). (Toth, Tr. 5749-50,
 

in camera). l 

78 

- ., 
). (Toth, Tr. 5750-51, in camera). Toth's testimony remains 

unefuted on this fact. 

~ 

) (RFOF 1591, in 

camera). ~
 

) (RFOF 1592, in camera). ~ 

) (RFOF 1596, in camera; RXO 1714, in 

) 

(RX01714 at 001, in camera). ~ 

) (RXOI714, in camera; Toth, Tr. 5761­

62, in camera). Despite Complaint Counsel's assertion, ~ 

) (RXOI714, in camera; Toth, Tr. 5761-62, in camera). Furthermore, 

~ ). 

(Seibert, Tr. 5649, 5658, in camera; RX01667 at 002, in camera; RX01668 at 002, in camera; 

RX01669 at 002, in camera; RXOI713, in camera; RX01718, in camera; RX01714 at 001). t 

) (RXOI714, in camera). 

79 
1318. Mr. Seibert testified at trial that Daramic has not l 

). (Seibert, Tr. 5725, in camera). Mr. Seibert testified that l
 

). (Seibert, Tr. 5663-5664, in camera).
 

Response to Findine: No. 1318: 

Complaint Counsel Finding No. 1318 is inaccurate and incomplete for the reasons stated 

in Respondent's Responses to Finding Nos. 1316 and 1317, which are incorporated herein. ~ 

) 

(RFOF 1509-1510, 1517, 1519-1521, 1565, 1585-1590, in camera). ~ 

) (Toth, Tr. 5750-51, in camera). ~ 

) (Seibert, Tr. 5645, in camera; RX01693, in camera). ~ 

) (Toth, Tr. 5746-47, in camera).
 

1319. Mr. Seibert testified that all of the l 

). (PX5076 (Seibert, Dep. at 33-34), in camera).6 When challenged at 

his deposition that Daramic had never l 

) (PX5076 (Seibert, Dep. at 30-31), in camera). 

Response to Findine: No. 1319: 

Complaint Counsel Finding No. 1319 is inaccurate, incomplete and misleading. l 

6 Mr. Seibert evaded this question at trial and had to be impeached with his deposition testimony. (Seibert, Tr. 

5703-5706, in camera). 

80 
) (Toth, Tr. 5749-50, in camera). r 

) (RFOF 14;
 

Seibert, Tr. 5648-49, in camera; Toth, Tr. 5749-50, in camera). ~ 

) (RFOF
 

1506; Seibert, Tr. 5648-49, in camera; Toth, Tr. 5749-50, in camera). ~ 

) (Seibert, Tr.
 

5652, in camera; Toth, Tr. 5749-50, in camera). 

~ 

) (PX0835, in camera). ~
 

) (Seibert, Tr. 6682-83, in camera; RX01724, in camera). 

Second, ~
 

J (Seibert, Tr. 5662-63, 5666, in camera; Toth, Tr. 5749-50, in camera; RX01714 at 

002, in camera; RX01718 at 002, in camera). ~ 

) (Toth, Tr. 5749-50, in camera).
 

~ 

) (See Respondent's Response
 

to Finding Nos. 1317-19, in camera). 

81 
Third, ~
 

) (Seibert, Tr. 5645, in camera; see also
 

Respondent's Response to Finding No. 1282). 

Finally, Complaint Counsel's characterization of Seibert's testimony is completely false. 

Seibert did not evade this, or any, question and was not impeached by any testimony. Complaint 

Counsel continually presented Seibert with varying hypotheticals, without any of the necessary 

variables, and Seibert attempted to answer Complaint Counsel to the best of his abilities. 

1320. Mr. Gilespie testified that Exide has l 

). (Gilespie, Tr. 5814, in camera). Mr. Gilespie testified Daramic has never l 

). (Gilespie, Tr. 5814,


in camera). 

Response to Findine: No. 1320: 

Complaint Counsel Finding No. 1320 is completely incomplete and misleading for the 

reasons ariculated in Respondent's Response to Finding No. 1313, which is incorporated herein. 

First, Complaint Counsel cites only Gilespie's testimony to support its proposed finding.
 

Gilespie has proven not to be credible and his testimony is given no weight. Moreover, it is 

telling that Complaint Counsel offers no credible evidence to attempt to support this assertion. 

Complaint Counsel introduced no exhibits to support this proposed finding even though it had 

ample opportunity to do so. Complaint Counsel fails to support this proposed finding with any 

credible evidence. 

82
 
Second, t 

) (RFOF 1521, in
 

camera). r 

) (RFOF 1523;
 

Seibert, Tr. 5733-34, in camera). In addition, ~ 

) (RX01668 at 002, in camera; Seibert, Tr. 5659-60, in camera; 

Gilespie, Tr. 5839, in camera). 

· Respondent's allegation in the fourth proffer that for Daramic to "retain any small 

amount of 
 business from Exide in r ), or thereafter" it "wil only be able to obtain 

such sales through a r 1" is not accurate because Daramic
 

has not offered a r 1 on motive, UPS, or deep-cycle separators
 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1321. Daramic has not offered l 

). (Gilespie, Tr. 5808-5810, in camera). Daramic has also not offered to 

l 

) 

(RX01667 at 002, in camera). 

Response to Findine: No. 1321: 

Complaint Counsel Finding No. 1321 is incomplete and misleading. First, Complaint 

Counsel relies on Gilespie's testimony to support its proposed finding. Gilespie has proven not 

to be credible and his testimony is given no weight. ~ 

) (RX01667 at 002, in camera). 

83 
Second, ~
 

.) (Seibert, Tr.
 

5645, in camera). ~ 

) (See Respondent's
 

Response to Finding No. 1324, 1326, in camera). l
 

) (RFOF 1517, in camera, RFOF 1526-1527, in camera; RFOF 1685,1587,1588,1590, 

1596). t 

). 

~ 

.) (RFOF 1503, in camera) U 

L in camera). With respect to these separators ~ 

) (RX01668 at 002, in camera; Seibert Tr. 5734, in camera). 

1322. As evidenced in previous findings, Daramic expects to l 

). (CCFOF 1253 - 1255, 1305 ­

1306). However, Daramic has never l 

). (CCFOF 1312 - 1315). To this day, Daramic has only l 

). (CCFOF 1312, 1316-1320). However,

because Daramic is l 

). (CCFOF 1321). 

Response to Findine: No. 1322: 

84 
Complaint Counsel Finding No. 1322 is incorrect, inaccurate and incomplete. In 

response to this Finding, Respondent incorporates its response to Findings Nos. 1253-1255, 

1305-1306, and 1312-1320. As previously stated, t 

). (See Respondent's
 

Response to Finding No. 1279. ~
 

) (See Respondent's
 

Response to Findings No. 1279-82, 1317-19). 

Second, ~
 

(RFOF 1521, in camera). ~ 

) (RFOF 1523, in camera; Seibert, Tr. 5733-34, in camera). ~ 

) (RXOI668, in camera; RX01669,
 

in camera, Seibert, Tr. 5659-60, in camera; Gilespie, Tr. 5839, in camera). Furthermore, ~ 

) (See
 

Respondent's Responses to Finding Nos. 1317-19). 

Finally, Complaint Counsel's contention that ~ 

85
 

l 
.) (RFOF 201, 589; RX00303, in
 

camera, RX00304; RX00305; RX00306; RX00307; RXOOI47, in camera; RFOFCOL 926-76). 

Further, Complaint Counsel's contention that ~ 

). (See Respondent's Response to Finding No. 1321).
 

II. Exide is not a power buyer:
 

. r
 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1323. l 

) (Seibert, Tr. 5645, in camera). 

Response to Findine: No. 1323: 

Finding No. 1323 is incomplete and inaccurate. r 

) 

(RFOF 1528; see also Respondent's Response to Finding No. 1280, in camera; RX01720, in 

camera). This conduct, ~ 

) (RFOF 1540, in camera; Seibert, Tr. 

5677-78, in camera). 

1324. Daramic has been unwiling to l 

). (Gilespie, Tr. 5817, in camera). l 

) (Seibert, Tr. 5690, 5715, in camera). l 

86 

1 
) 

(Seibert, Tr. 5716, in camera). 

Response to Findine: No. 1324: 

Complaint Counsel Finding No. 1324 is false and completely inaccurate. ~ 

) (RFOF 1528; see also Respondent's 

Response to Finding No. 1280, in camera). Gilespie's testimony to the contrary is false. 

Gilespie has proven not to be credible and his testimony is given no weight. One of the most 

poignant examples of Exide's lack of dedication to the negotiation process ~
 

) (See Respondent's Response to
 

Finding No. 1280, in camera). ~
 

) (RX01687 at 003, in
 

camera; Seibert, Tr. 5686-87, in camera). This example is just one of many exemplifying 

~ 

) (See Respondent's Responses to Findings No. 1279-81).
 

Furthermore, ~
 ) (See
 

Respondent's Responses to Finding Nos. 1279-81, 1326). ~ 

) (RFOF 1509-10, 1517, 1521, in 

camera). ~
 

) (RXOI714, in camera). ~
 

87 
) (RXOI714, in
 

camera). ~
 

) (Toth, Tr. 5749-50, in camera; RX01714 at 002, in camera). 

Finally, Complaint Counsel, once again, completely manipulates the hearing testimony to 

suit their own needs. Respondent's Counsels objection to an improper question by Complaint 

Counsel, whereby Complaint Counsel abandoned that line of questioning, is not evidence of 

anything except Complaint Counsel's improper questioning. (Seibert, Tr. 5715-16, in camera). 

· Daramic has refused to provide Exide r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1325. Daramic has never offered l 

). (CCFOF 1316 - 1318, 1320; Toth Tr. 5750, in camera). l 

) (Gilespie, Tr. 5814-5815, in camera).
 

Response to Findine: No. 1325: 

Complaint Counsel Finding No. 1325 is completely incorrect, incomplete and 

misleading. In response to this Finding, Respondent incorporates its response to Finding
 

Nos. 1279-80,1312-1318,1320.
 

. Daramic' s proposed r
 

1 

88 
The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1326. Exide currently pays l ) for SLI separators in North 

America. (Gilespie, Tr. 3018-3020, 3059, in camera). l 

) (Gilespie, Tr. 5807-5808, in camera). This 

fact is well-known by both companies, and is the result of l 

). (Gilespie, Tr. 5807, in
 

camera). l 

) (Gilespie, Tr. 5807­

5808, in camera). 

Response to Findine: No. 1326: 

Complaint Counsel's proposed finding 1326 is inaccurate and misleading. First, 

Complaint Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie 

has proven not to be credible and his testimony is given no weight. Moreover, it is telling that 

Complaint Counsel offers no credible evidence to attempt to support this assertion. Complaint 

Counsel introduced no exhibits to support this proposed finding even though it had ample 

opportunity to do so. Complaint Counsel fails to support this proposed finding with any credible 

evidence. Second, although Complaint Counsel is correct that ~ 

) (RFOF 530-531, in camera), Complaint Counsel 

is incorrect that r 

). (RFOR 530-531, in camera). Complaint Counsel also ignores significant evidence from 

the hearing when drawing the incorrect conclusion that "~ 

)" The evidence is unrefuted that since the hearing record was closed on June 

22, 2009, ~
 

). (RFOF 1513, 1521, 1523, 1527, in 

89 

- ., - ., 
camera; RX1665 at 004, in camera; RX1668 at 002 in camera; RX1669 at 002, in camera). 

~ ). 

(RFOF 1515, in camera; RX01697, in camera). 

~ 

). (RFOF 1521, in camera). ~ 

). (RFOF 1523, in camera; Seibert, Tr. 5733-34, in camera). r 

). (See CCFOF 1067, in camera). 

The evidence is unrefuted that the reason why ~ 

Q. 

A. 

). (RFOF 1502, in camera). ~ 

). (RFOF
 

946, in camera). As Bob Toth testified repeatedly on November 12, 2009, ~ 

). (Toth, Tr. 5739, in camera). ~ 

90 

- ., -- ., 
). (Seibert, Tr. 5645, in
 

camera; see also RFOF 1567, 1575, in camera). 

l 

). (Toth, Tr. 5751-52, in camera). 

~ ) (Seibert, Tr. 

5649,5658, in camera; RX01714, in camera) and, after ~ 

). (Toth, Tr. 5749, in camera; Seibert, Tr. 5662-63, in
 

camera; RXI667-002, in camera; RXI718-002, in camera). ~ 

). (RX01667 at 002, in camera; RX01683, in camera; RXOI713 at 003, in 

camera; RX01714 at 002, in camera). As Bob Toth ~ 

). 

91 

- .. - ., 
(Toth, Tr. 5754-55, in camera). 

r 

). (RFOF 1528, 1602, 1622, in camera). ~ 

) (Gilespie, Tr. 3072-73, in camera) ~ 

) (see RFOF 559-562, 603, in camera), r 

). (RFOF 1517, 1526-1527, 1585, 1587, 1588, 1590, 1596, in 

camera). ~
 

J. 

(Gilespie, Tr. 3068-3070, in camera). r 

) .
 

1327. Notwithstanding the fact that Exide is Daramic's t 

). (PX5076 (Seibert, Dep. at 75-76), in camera). 

Response to Findine: No. 1327: 

Complaint Counsel's proposed finding 1327 is inaccurate and misleading. First, 

Complaint Counsel's statement that ~ 

). Second, the citation to Mr.
 

Seibert's testimony is inaccurate and incomplete as Mr. Seibert, immediately prior to his answer, 

began to ask Complaint Counsel if he had something specific to consider, but was cutoff and 

then simply responded, in that context, that he did not know the answer to the question. (Seibert, 

Dep. at 75-76, in camera). As discussed above, ~ 

92 

- ., ~ - ., 
). (RFOF 1521-1523, 1527, in camera). ~ 

). (Toth, Tr. 5751, in camera). In 

addition, ~
 

). (RFOF 1517,1521-1523,1526, 1527, 1587-1588, 1592-1593, in camera; 

RX1714, in camera). The import here is ignored by Complaint CounseL. ~ 

). (RFOF 1521-1523, 1526, 1527, 1587-1588, in camera). 

. r
 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1328. l 

) (PX5076 (Seibert, Dep. at 58), in camera). l 

) (RX01685 at 001, in camera) 

Response to Findine: No. 1328: 

Complaint Counsel's Finding No. 1328 is misleading. ~ 

). (Seibert, Tr. 5684, 5707, 5715,
 

5723, in camera; RX01685, in camera). l 

93 

- .. - ., 
). (Seibert, Tr. 5681,
 

5722, in camera).
 

l
 

)." (RX01720 at
 

005, in camera). 

1329. Daramic has only agreed to l ). 

(Seibert, Tr. 5707, in camera). Mr. Seibert testified that the l 

). (PX5076 (Seibert, Dep. at 58), in camera). 

Response to Findine: No. 1329: 

Complaint Counsel's Finding No. 1329 is incorrect. Compliant Counsel completely
 

misstates the evidence on the record. Mr. Seibert in fact testified l 

) (Seibert, Tr. 5707, in camera). Mr. Seibert also 

testified that l 

) (Seibert, Tr. 5680, in camera). l 

). 

94 

- .. - .. -- ., 
1330. t 

) (Toth, Tr. 5766, in
 

camera; see also Seibert, Tr. 5694-5695, in camera). 

Response to Findine: No. 1330: 

Compliant Counsel's Finding No. 1330 is false, misleading and ignores the evidence on 

the record. First, l 

). (Toth, Tr. 5766, in camera). l 

). (RFOF 1541, in 

camera).
 

Second, l
 

). (Toth, Tr. 5739, in
 

camera). At that time, ~ 

). (Toth, Tr. 5739-40, in
 

camera). l 

). (RFOF 1576-82, in camera). And ~ 

). 

(Toth, Tr. 5767, in camera). 

95 

-., - ., 
Finally, Complaint Counsel's suggestion that l 

) defies common sense and logic. l 

). (Seibert, Tr.
 

5681,5722, in camera). l 

). (RFOF 1541-42, in camera). l 

). 

1331. Mr. Seibert testified at his deposition that Daramic has not t 

). (PX5076 (Seibert, Dep. at 27), in camera). 

Response to Findine: No. 1331: 

Complaint Counsel's proposed finding 1331 is inaccurate and misleading. First, ~ 

) (PX5076 (Seibert, Dep. at 27), in camera). Second, Mr. Seibert 

later clarified his testimony that r 

). (PX5076 (Seibert, Dep. at 102-103, in camera); 

Seibert, Tr. 5702, in camera). r 

). (RXOI719, in camera). Third, ~ 

). (RFOF 1521, 1587, in camera; Toth, Tr. 5750-51, in 

camera). 

96 

--- .. 
· Daramic has reneged on a commitment to Exide to r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1332. On August 13,2009 Mr. Seibert informed Mr. Gilespie that l 

) (RXOI670, in camera). 

Response to Findine: No. 1332: 

Complaint Counsel's Finding No. 1332 is misleading. Mr. Seibert did t 

). (RXOI670, in camera; RFOF 1546, in camera). 

. (RXOI670, in camera; RFOF
 

1529, in camera). 

). (RFOF 1529, in
 

). t 

). (Seibert, Tr. 5681,5722, in camera). 

1333. Mr. Gilespie testified that in August 2009, Daramic confirmed t 

). (Gilespie, Tr. 5800, in camera). Later, Daramic reneged on this 

l 

). (Gilespie, Tr. 5800­

5801, in camera). 

Response to Findine: No. 1333: 

97 

- - ..
 
Complaint Counsel's Finding No. 1333 is misleading and unreliable. First, Complaint 

Counsel cites only Gilespie's testimony to support its proposed finding. Gilespie has proven 

not to be credible and his testimony is given no weight. Moreover, it is tellng that Complaint 

Counsel offers no credible evidence to attempt to support this assertion. Complaint Counsel 

introduced no exhibits to support this proposed finding even though it had ample opportunity to 

do so. Complaint Counsel fails to support this proposed finding with any credible evidence. 

Second, ~
 

). (RXOI693, in camera;
 

RX01680, in camera; RX01685, in camera; Seibert, Tr. 5681,5684, in camera). ~ 

). 

(Seibert, Tr. 5684, 5707, 5715, 5723, in camera; RX01685, in camera). ~ 

) . 

(Seibert, Tr. 5681, 5722, in camera). 

· Daramic is refusing to r 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1334. In recent months, Daramic has been l 

). (Gilespie, Tr. 5821-5822, in


camera). On October 20,2009, Mr. Seibert wrote to Mr. Gilespie notifying him that 

98 

- ., 
l 

) (RX01693 at 002, in camera). 

Response to Findine: 1334: 

Complaint Counsel's proposed finding 1334 is inaccurate, incorrect and misleading. 

First, Complaint Counsel cites only Gilespie's opinion to support the first sentence of its 

proposed finding. Gilespie has proven not to be credible and his testimony is given no weight. 

Moreover, it is tellng that Complaint Counsel offers no credible evidence to attempt to support 

this assertion. Complaint Counsel introduced no exhibits to support the first sentence of this 

proposed finding even though it had ample opportunity to do so. Complaint Counsel fails to 

support the first sentence of this proposed finding with any credible evidence. Second, 

~ 

). (RFOF 1529, in camera). ~ 

). (RFOF 1529, in
 

camera). ~
 

). (RFOF 1529, in camera). ~ 

). (RFOF 1531,1533, in camera). r
 

99
 
). (RFOF 1529, 1533, 1535, in camera). 

~ ). (RFOF 

1534, 1535, in camera). On top of 
 that, ~
 

). (RFOF 1541, in camera). ~ 

) (RXOI693, in camera;
 

RX01685, in camera; RX01679, in camera; RFOF 1544, 1545, in camera), ~ 

). (RFOF 1546­

1547, in camera). ~ 

). (RFOF 1546, in camera). ~ 

). (RFOF 1542, in camera; RX01723 at 002 ( 

))). ~
 

). (RFOF 1533, in camera). ~ 

). 

(RFOF 1542, in camera; RX1693, in camera). ~ 

100 
). (Tr. 5886, in camera). The evidence adduced at the hearing demonstrates that
 

~ 

). (RFOF 1517­

1519, 1526, 1570, 1575, 1587, in camera). Bob Toth's uncontradicted testimony that r 

). (Toth, Tr. 5746, in camera; see also RX01712 at 002 ("~ )"), in camera). 

1335. l 

) (Gilespie, Tr. 5822, in camera). l 

) (Gilespie, Tr. 5822, in
 

camera). Mr. Gilespie testified that t 

) (Gilespie, Tr. 5867, in camera).
 

Response to Findine: No. 1335: 

Complaint Counsel's proposed finding 1335 is inaccurate, incorrect and misleading. 

First, Complaint Counsel cites only Gilespie's testimony to support its proposed finding. 

Gilespie has proven not to be credible and his testimony is given no weight. Moreover, it is 

telling that Complaint Counsel offers no credible evidence to attempt to support this assertion. 

Complaint Counsel introduced no exhibits to support this proposed finding even though it had 

ample opportunity to do so. Complaint Counsel fails to support this proposed finding with any 

credible evidence. Second, ~
 

101 
) (RX01723 at 002, in camera; Gilespie, Tr. 5836, in camera), 

and ~
 

). (RFOF 1533, 1542, in
 

camera). Gilespie's vague assertion that r 

). (RXOI726; RX01723 at 002, in camera). 

Third, Complaint Counsel's statement that ~ 

). (See Respondent's Response to Finding No. 1334). r
 

). (RFOF 1542, in camera). ~ 

). (RFOF 1547, in camera; RX01693,
 

in camera; RX01681, in camera). ~ 

). 

(RFOF 1548, in camera; RX01681, in camera; RFOF 1541, in camera). 

Finally, Complaint Counsel's proposed finding suggesting that ~ 

102 
) ." (Gilespie, 

Tr. 5867, in camera)(emphasis added). Gilespie's testimony is contradicted by substantial 

evidence in the record. The evidence in the record demonstrates that ~ 

). (RXOI687, in camera).
 

~ 

). (RXOI670, in camera;
 

RX01671, in camera; Seibert, Tr. 5674-5677, in camera; Seibert, Tr. 5714, in camera). 

~ ), (Seibert, Tr. 5675, in 

camera), ~
 

L (RXOI717, in camera), and then ~ 

). (RFOF 1529, in camera). ~ 

) :
 

· RX01671, in camera U
 

)); 

· RX01685, in camera U
 

103
 
) ."); 

· RX01679, in camera U
 

)."); and 

· RX01680, in camera U
 

) ."). 

~ 

). (Seibert, Tr. 5685-86, in camera; RX01714, in 

camera; RX01687, in camera; RX01597, in camera). As set forth above, ~ 

). Complaint Counsel's proposed finding is not true. 

Moreover, Gilespie's testimony is directly contradicted by the facts, leading this Court to once 

again find Gilespie not to be a credible witness. 

1336. Daramic's refusal to l 

") (Gilespie, Tr.
 

5805, in camera). Daramic is the only one of 
 Ex ide's 15,000 suppliers that has 

t ). (Gilespie, Tr. 5822, in camera).


Daramic's refusal to l 

104 
). (Gilespie, Tr. 5822-5823, in camera).
 

Response to Findine: No. 1336: 

Complaint Counsel's proposed finding 1336 is inaccurate, incorrect and misleading. 

First, Complaint Counsel cites only Gilespie's testimony to support its proposed finding.
 

Gilespie has proven not to be credible and his testimony is given no weight. Moreover, it is 

telling that Complaint Counsel offers no credible evidence to attempt to support this assertion. 

Complaint Counsel introduced no exhibits to support this proposed finding even though it had 

ample opportunity to do so. Complaint Counsel fails to support this proposed finding with any 

credible evidence. Second, ~ 

)." (RX01693 at 002, in camera; RFOF 1535­

1537, 1541-1542, in camera). ~ 

). (RX01693 at 002, in camera; RFOF 1604, in camera; 

Gilespie, Tr. 5869-70, in camera). ~ 

). (RFOF 1526, 1574-1575, 1600, in camera; 

Seibert, Tr. 5691, in camera). 

· Daramic has reneged on r 

1 

105 
The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1337. In September 2009 Daramic had agreed to l 

) (RX01685 at 001, in camera). 

Response to Findine: No. 1337: 

Complaint Counsel's Finding No. 1337 is misleading and incorrect. ~ 

). (RXOI693, in camera; RX01680, in camera;
 

RX01685, in camera; Seibert, Tr. 5681, 5684, in camera). ~ 

). (Seibert, Tr. 5684, 5707, 5715,
 

5723, in camera; RX01685, in camera). 

l 

). (RXOI685, in
 

camera). (Seibert, Tr. 5676-77, 5732, in camera). Mr. Seibert's email states: 

l 

)
 

106
 
(RXOI685, in camera). r 

) 

(RXOI685, in camera). 

l 

). (Siebert, Tr. 5684-85, in camera; Gilespie, Tr. 5840­

41, in camera; RX01681, in camera). ~ 

). (Gilespie, Tr. 5840, in camera). l 

). 

1338. However, by October 20th, when l 

). (RX01693 at 001, in camera). Daramic informed Exide that the l 

). (RX01693 at 001, in camera). 

Response to Findine: No. 1338: 

Complaint Counsel's Finding No. 1338 is incorrect and misleading. ~ 

107
 
). (RXOI693, in camera; RX01680, in camera;
 

RX01685, in camera; Seibert, Tr. 5681, 5684, in camera). l 

) (RXOI685, in 

camera). 

). (Siebert, Tr. 5684-85, in camera; Gilespie, Tr.
 

5840-41, in camera; RX01681, in camera). ~ 

). (Gilespie, Tr. 5840, in camera).
 

~ 

).
 

Complaint Counsel's proposed suggestion that l
 

) is incorrect and misrepresents Gilespie's testimony to this Court. 

Gilespie's actual testimony was that l 

) (Gilespie, Tr. 5867, in
 

camera)(emphasis added). Gilespie's testimony is contradicted by substantial evidence in the 

record. The evidence in the record demonstrates that l 

108 
). (RXOI687, in camera). 

) (RX00976, in camera, PX0728, in camera).
 

l 

) (RX00976, in camera). l 

) (PX0728, in camera). 

1339. l ) (Gilespie, Tr. 5801, in
 camera). In response to the question whether Daramic would give l 

) (PX5076
 

(Seibert, Dep. at 71-72), in camera). 

Response to Findine: No. 1339: 

Complaint Counsel's Finding No. 1339 is misleading. In further response, Respondent 

incorporates its response to Finding Nos. 1337-38. 

. r
 1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

109 
1340. l 

) (Gilespie, Tr. 5829, in camera). Mr. Gilespie testified that Exide expects to l 

). (Gilespie, Tr. 5825­

5826, in camera). 

Response to Findine: No. 1340: 

Complaint Counsel's Finding No. 1340 is incomplete, repetitive and misleading, and 

draws a false conclusion. For its response to this finding, Respondent incorporates its
 

responses to Finding Nos. 1249-57. Furher, it is also tellng that Complaint Counsel relies 

solely on the testimony of Gilespie to support its finding. Gilespie's testimony is not
 

credible and should be given no weight. Complaint Counsel introduced no exhibits to 

support this proposed finding even though it had ample opportunity to do so. Complaint 

Counsel fails to support this proposed finding with any credible evidence. 

. Daramic has threatened ~
 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is warranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1341. During discussions about a l 

) 

(Gilespie, Tr. 5817-5818, in camera). Mr. Gilespie understood Mr. Bryson's 

comment to be l 

) (Gilespie, Tr. 5818, in camera).
 

Response to Findine: No. 1341: 

Complaint Counsel Finding No. 1341 is incorrect, incomplete, misleading and not 

supported by any viable evidence. First, Complaint Counsel cites only Gilespie's testimony to 

support its proposed finding. Gilespie has proven not to be credible and his testimony is given 

110 

- ., 
no weight. Moreover, it is tellng that Complaint Counsel offers no credible evidence to attempt 

to support this assertion. Complaint Counsel introduced no exhibits to support this proposed
 

finding even though it had ample opportunity to do so. Complaint Counsel fails to support this 

proposed finding with any credible evidence. There is no documentation to support Gilespie's 

statements. 

Furhermore, ~ 

). (Gilespie, Tr. 5818, in camera). There is absolutely no evidence
 

to support the contention that ~ 

) Gilespie's testimony of r
 

.) (Gilespie, Tr.
 

5850, in camera; see also Respondent's Response to Finding Nos. 1281, 1294, 1315, in camera). 

~ 

) (Seibert, Tr. 5652, in camera; Toth, 5747-49, 5772, in camera). t
 

) 

1342. Exide believes that l 

) (Gilespie, Tr. 5829-5830, in camera). Mr. Gilespie testified that if Exide were l 

) (Gilespie, Tr. 5818, 5829, 5867, in camera).
 

Moreover, Exide's industrial battery manufacturing facilities accounted for more than 

35% of 
 Exide's net sales in its most recent quarter. (RX01726 at 006,015). 

111 

-- ., 
Response to Findine: No. 1342: 

Complaint Counsel's Finding No. 1342 is inaccurate and misleading. Again, Complaint 

Counsel cites only Gilespie's testimony to support the first two sentences of its proposed
 

finding. Gilespie has proven not to be credible and his testimony should be given no weight.
 

Moreover, it is tellng that Complaint Counsel offers no credible evidence to attempt to support 

this assertion. Complaint Counsel has introduced no documents of this alleged threat and relies 

solely on Gilespie's statement that such threat occurred, thus this finding should be disregarded 

in its entirety. Complaint Counsel also did not call Mr. Bryson to the stand when faced with 

Gilespie's lack of credibility. 

First and foremost, ~ )
 

set forth in Complaint Counsel's proposed finding. The record is clear that ~ 

L (Gilespie, Tr. 5850, in camera), ~
 

). 

(Gilespie, Tr. 5817-5818, in camera; Response to Finding Nos. 1281, 1315, in camera).
 

~ ). 

(Toth, Tr. 5739-44,5749-51, in camera). 

Furher, ~ 

112 

- ., 
). (RFOF 1503, in camera; Gilespie, Tr. 5855-56, in camera). Moreover, this finding 

also completely ignores the undisputed evidence that ~
 

). (RFOF 1552, in camera; RX01687 at 002, in camera). r
 

). 

~ 

). (RFOF 1552, in camera). 

Finally, the last sentence of this proposed finding is misleading because it considers 

Exide's worldwide net sales, rather than Exide's net sales in North America (which is the 

geographic region alleged by Complaint Counsel). Exide's Form 8-K dated November 5, 2009 

demonstrates that Exide's net sales of industrial products in the Americas accounts for less than 

9% of its total net sales for its most recent quarter. (RXO 1726 at 015). 

. Daramic is attempting to r
 

1 

The foregoing is not a proposed finding of fact and as such no reply is necessary. To 

the extent a reply is waranted, Respondent states that Complaint Counsel's statement 

is incorrect for the reasons stated below. 

1343. Daramic has attempted to link any l 

). (Gilespie, Tr. 5819, in camera).
 

Polypore's general counsel explained to Mr. Gilespie that Daramic's reasoning for 

linking the t 

) (Gilespie, Tr. 5820, in camera). Exide 

113 
understood from these comments that Daramic was attempting to l 

) (Gilespie, Tr. 5820, in camera).
 

Response to Findine: No. 1343: 

Complaint Counsel Finding No. 1343 is inaccurate. First, Complaint Counsel cites only 

Gilespie's testimony to support its proposed finding. Complaint Counsel did not call Mr. 

Bryson as a witness, even when faced with Gilespie's lack of credibilty. Gilespie has proven
 

not to be credible and his testimony is given no weight. Complaint Counsel introduced no 

exhibits to support this proposed finding even though it had ample opportunity to do so. Given 

the multitude of written proposals that were exchanged between Exide and Daramic during 

recent months, it is especially tellng that Complaint Counsel cites to no documentary evidence 

to support their position in this finding. 

~ 

) (Toth, Tr. 5752, in camera; see also Respondent's Response to Findings
 

Nos. 1267-71, 1277, in camera). 

1344. As the above findings indicate Exide is not a power buyer. l 

) (CCFOF 1326
 

- 1327). Moreover, Daramic's refusal to provide Exide l 

) (CCFOF 1320, 1325), along with Exide's inability to l ) (CCFOF 1317,
 1324); its inabilty to have l 

) (CCFOF 1328 - 1330, 1332 - 1336); its inability to have l 

) (CCFOF 1337 ­ 1339); its inabilty to l
 

) (CCFOF 1256, 1340); its inability to t
 

) (CCFOF 1341 - 1342); and its inability to l 

114 
) (CCFOF 1343), all indicate that Exide is not a power buyer. 

Response to Findine: No. 1344: 

Complaint Counsel's proposed finding 1344 is inaccurate, incorrect and misleading for 

the reasons previously stated in Response to Proposed Finding Nos. 1317, 1324, 1326-1130, 

1332-1339, 1256, and 1340-1343, which are incorporated herein. As previously stated, to the 

extent Complaint Counsel cites to Gilespie's testimony to support its proposed finding, Gilespie 

has proven not to be credible and his testimony is given no weight. Moreover, it is tellng that 

Complaint Counsel offers no credible evidence from Exide to attempt to support its findings. 

Complaint Counsel introduced no exhibits to support this proposed finding even though it had 

ample opportunity to do so. Complaint Counsel called no witness from Exide, other than 

Gilespie, to offer evidence at this hearing. Noticeably absent was Gordon Ulsh, Exide's CEO. 

Complaint Counsel has failed to support its proposed findings with credible evidence from 

Exide. 

While it is not necessar to reiterate all of the inaccuracies in Complaint Counsel's 

proposed finding, which this finding for some odd reason summarizes, certain points bear 

mentioning. First, ~ 

J. (See 

Respondent's Response to Finding Nos. 1326-27, 1313). As much as Complaint Counsel would 

like to ignore the facts, the evidence shows that ~
 

115
 
(Seibert, Tr. 5732-34, in camera). 

~ 

116
 
). (RFOF 1535, 1541-1542, in camera; RX01723 at 002, in camera; Gilespie, Tr. 5836-37, 

in camera). ~
 

). (RFOF 1541, in
 

camera). 

~ 

L (RFOF 1529, 1539-40 in camera), and ~ 

L (RFOF 1549, in camera), l 

). (RXO 1704, in camera; 

RX01668 at 002, in camera). ~ 

), (RFOF 1540, in camera; 

Gilespie, Tr. 5849, in camera), or l 

). (RFOF 1061-1122, in camera). ~ 

117 
). (RFOF 1528, 1597, 1599, 1601-1602, in camera). ~ 

). 

III. Other (Credibility):
 

1345. At trial, when Mr. Seibert was asked l 

) (Seibert, Tr. 5701, in camera). At his deposition, Mr. Seibert 

gave the following testimony:
 

(PX5076 (Seibert, Dep. at 27), in camera). 

Response to Findine: No. 1345: 

Complaint Counsel's proposed finding 1345 is incomplete and misleading. Both in the 

deposition and at the hearing on November 12, 2009, Mr. Seibert attempted to clarify his 

testimony on the subject of ~ 

). First, in his deposition, while the categorically broad, and hence vague, question was
 

posed to him of whether r 

)" (PX5076; Seibert, Dep. at 27, in camera). He went on to clarify ~ 

118
 
(PX5076 (Seibert Dep. 102-103), in camera). 

~ 

). (RXOI719,incamera). r
 

). (RXOI719, in camera). At the hearing, r
 

). (Seibert, Tr. 5702, in camera.) Mr. Seibert's testimony has 

been accurate throughout and unefuted. It bears noting that Complaint Counsel, despite having 

ample opportunity to do so, did not produce any evidence to contradict Mr. Seibert's testimony. 

Complaint Counsel did not call r ) at the hearing on November 12 to
 

119
 
rebut any of Mr. Seibert's testimony. As such, Mr. Seibert's testimony is unrefuted and 

Complaint Counsel's suggestion that Mr. Seibert's testimony is not credible is rejected. 

1346. Mr. Seibert testified in his deposition that he had not l 

). (PX5076 (Seibert, Dep. at 27), in camera). The deposition began at 12:51 pm at the offices of Parker Poe on 

October 27. (PX5076 (Seibert, Dep. at 3), in camera). At the end of the deposition, 

after a lengthy break and under redirect, Mr. Seibert testified that t 

). (PX5076 (Seibert, Dep. at 102), in camera). In his deposition testimony, Mr. Seibert made no mention of l 

). At trial, Mr. Seibert testified that l
 

) (Seibert, Tr.


5703, in camera). Mr. Seibert's testimony at trial, that he had communicated at his 

deposition that Daramic had l 

). (Seibert, Tr. 5703, in camera; PX5076 (Seibert, Dep. at 

102), in camera). 

Response to Findine: No. 1346: 

Complaint Counsel's proposed finding 1346 is inaccurate, incorrect and misleading. As 

discussed in response to Finding No. 1345, which is incorporated herein, Mr. Seibert clarified the 

testimony that he gave earlier in the day at his deposition to vague questioning. In clarifying his 

testimony, Mr. Seibert testified that ~ 

). (PX5076 (Seibert, Dep. at 102-103), in camera). 

Mr. Seibert's testimony was accurate. ~ 

). (RXOI719, in camera). r 

). (RXOI719, in camera). Complaint
 

Counsel, despite having ample opportunity to do so, did not produce any evidence to contradict 

Mr. Seibert's testimony. Complaint Counsel did not call ~ ) at the
 

hearing on November 12 to rebut any of Mr. Seibert's testimony. As such, Mr. Seibert's 

testimony is unrefuted and Complaint Counsel's suggestion that Mr. Seibert's testimony is not 

120
 
credible is rejected. In addition, Complaint Counsel's statement regarding a "lengthy break" and 

the suggestion of some impropriety are wholly unsupported by any evidence and completely 

baseless. 

1347. When Respondent produced its exhibits to Complaint Counsel it included a letter 

from l 

). 

this letter, l 

) is extraordinarily suspicious. (RXOI719, in camera; Seibert, Tr. 5703, in 

(RXOI719, in camera). The timing of 


camera). 

Response to Findine: No. 1347: 

Complaint Counsel's proposed finding 1347 is inaccurate, incorrect and misleading. 

First, as discussed in responses to Finding Nos. 1345 and 1346, which are incorporated herein, 

Mr. Seibert did not "alter" his testimony at his deposition. Rather, Mr. Seibert offered
 

clarification of his prior answer given the vagueness created by Complaint Counsel's 

questioning, which he is certainly entitled to do. The fact that r
 

). (PX5076 (Seibert, Dep. at 102-103), in camera). ~ 

). (RXI719, in camera). There is nothing "suspicious" about these events, and 

Complaint Counsel's opinion in this regard, as with their other views of this case, is without any 

basis and must be disregarded. Again, the fact that Complaint Counsel chose not to call ~ 

) to the stand at the hearing speaks loudly to the complete lack of any validity to their 

charge. 

121 
- ., - ., 

122 
UNITED STATES OF AMERICA 

BEFORE THE FEERAL TRADE COMMISSION 

DOCKET NO. 9327 

IN THE MATTER OF
 

POL YPORE, INTERNATIONAL, INC.
 

COMPLAINT COUNSEL'S
 

PROPOSED CONCLUSION OF LAW 

123 

-.. -- ., 
Most of Complaint Counsel's proposed conclusions of law are verbatim repetitions of 

conclusions of law that were filed at the conclusion of the initial hearing. Most of Complaint 

Counsel's proposed conclusions of law consist of erroneous statements of legal principles to 

which Respondent has already responded and to which no additional response is necessary. 

Some of Complaint Counsel's proposed conclusions of law are actually erroneous factual 

conclusions some of which require supplementary responses. 

Respondent's responses to Complaint Counsel's proposed conclusions of law are as 

follows: 

1348. A prima facie violation of Section 7: (1) the "line of commerce" or product market; 

the country" or geographic market; and (3) the transaction's probable 

effect on concentration in the product and geographic markets. FTC v. HJ Heinz Co., 

246 F.3d 708,713 (D.C. Cir. 2001); FTC v. University Health, Inc., 938 F.2d 1206, 1218 

(lIth Cir. 1991); United States v. Baker Hughes Inc., 908 F.2d 981 (D.C Cir. 1990). 

(2) the "section of 


Response to Conclusion of 
 Law No. 1348: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

10 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 10. 

1349. Finding a prima 
 facie violation of Section 7 creates a rebuttable presumption of anti competitive effects and shifts the burden of going forward with evidence to 

Respondent. Respondent have the burden of producing evidence that shows that the 

market share statistics supporting the prima facie case give an inaccurate account of the 

acquisition's probable effects on competition. Baker Hughes, 908 F.2d at 982-83; FTC v. 

Cardinal Health, 12 F. Supp. 2d 34,54 (D.D.C. 1998).
 

Response to Conclusion of 
 Law No. 1349: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

11 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion of law number 11. 

124 

-- ., 
1350. The appropriate lines of commerce within which to evaluate the probable competitive 

effects of the acquisition are separators for flooded lead-acid batteries in the following 

markets: (1) deep-cycle; (2) motive; (3) Automotive ("SLI"); and (4) uninterrptable 

power supply stationary ("UPS"). 

Response to Conclusion of 
 Law No. 1350: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

12 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion of law number 12. 

1351. The appropriate geographic area within which to evaluate the probable competitive 

effects of 
 the acquisition is North America. 

Response to Conclusion of 
 Law No. 1351: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

13 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion of law number 13. 

1352. A merger that significantly increases market shares and market concentration beyond
 

already high levels is so inherently likely to lessen competition substantially that it is
 

presumptively unlawfl under Section 7 of the Clayton Act. United States v.
 

Philadelphia Natl Bank, 374 U.S. 321,363 (U.S. 1963); Baker Hughes, 908 F.2d at 982­

83; PPG, 798 F.2d at 1502-03; Cardinal Health, 12 F. Supp. 2d at 52 ("under Section 7 

of the Clayton Act, a prima facie case can be made if the governent establishes that the 

merged entities wil have a significant percentage of the relevant market - enabling them 

to raise prices above competitive levels"). 

Response to Conclusion of Law No. 1352: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

14 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 14. 

1353. The Herfindahl-Hirschman Index ("HHI") is an appropriate measure of market 

concentration. E.g., University Health, 938 F.2d at 1211 n.12 (HHI is "most prominent 

125 

- ., 
method" of 
 measuring market concentration); FTC v. Staples, 970 F. Supp. 1066, 1081­

82 (D.D.C. 1997); Ivaco, 704 F. Supp. at 1419. 

Response to Conclusion of Law No. 1353: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

15 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion of law number 15. 

1354. Complaint Counsel established itsprimafacie case by showing that the acquisition 

produces a firm controllng a percentage share and HHI concentration levels in each of 

the four relevant markets that make the merger inherently likely to lessen competition 

substantially, which means that the merger is presumptively unlawful under Section of7 

of the Clayton Act. Brown Shoe, 370 U.S. at 343. 

Response to Conclusion of Law No. 1354: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

16. Respondent references and 'incorporates its response to Complaint Counsel's original 

conclusion of law number 16. Respondent supplements its original response as follows: the 

proposed conclusion is false as to the alleged SLI market because any percentage shares and HHI 

concentration levels have not been revised or formulated to take into account changes in this data 

shown by the evidence introduced at the Reopened Hearing on November 12,2009. 

1355. Complaint Counsel established that Daramic and Microporous were the number one and 

two competitors in the deep-cycle, motive, and UPS markets and that no other company 

provides effective competition. Complaint Counsel established that Microporous was at 

least the third best alternative for customers in the SLI market. The acquisition of 

Microporous by Daramic significantly increased concentration in the relevant product 

markets in North America, and resulted in highly concentrated markets. 

Response to Conclusion of 
 Law No. 1355: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

17 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion of law number 17. 

126 

- ., -- ., 
13 56. Having established a prima facie case, the burden of production and proof shifts to the 

defendants to rebut this presumption of anticompetitive har. United States v. Marine 

Bancorporation, Inc., 418 U.S. 602, 631 (U.S. 1974); Heinz, 246 F.3d at 715; Baker 

Hughes, 908 F.2d at 982-83. "The more compellng the prima facie case, the more 

evidence the defendant must present to rebut it successfully." Heinz, 246 F.3d at 725 

(quoting Baker Hughes, 908 F.2d at 991). Respondent has not demonstrated that the 

market share statistics give an inaccurate prediction of 
 the acquisition's probable effects 

on competition. "To meet their burden, the defendants must show that the market-share 

statistics. . . 'give an inaccurate prediction of 
 the proposed acquisition's probable effect 

on competition.'" Cardinal Health, 12 F. Supp. 2d at 54 (quoting Staples, 970 F. Supp. 

at 1083); see Baker Hughes, 908 F.2d at 991. 

Response to Conclusion of 
 Law No. 1356: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

18 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 18. 

1357. The power buyer argument is not itself 
 independently adequate to rebut a prima facie 

case. Chicago Bridge & Iron Co. N v., 534 F.3d 410, 440 (5th Cir. 2008); FTC v. 

Cardinal Health, 12 F.Supp. 2d 34, 61 (D.D.C. 1998).
 

Response to Conclusion of 
 Law No. 1357: 

The unqualified proposition stated here is false because it is not accepted or followed by 

all courts. The cour relied only on the fact of 
 power buyers in United States v. Archer-DanielsMidland Co., 781 F. Supp. 1400 (S.D. Iowa 1991) in determining that post-acquisition the 

industry was vigorously competitive because of the impact of powerful buyers. The court held 

similarly in United States v. Country Lake Foods, Inc., 754 F. Supp. 669 (D. Minn. 1990) when 

it found that the large buyers could purchase product outside the relevant geographic market 

area. In FTC v. R.R. Donnelley & Sons Co., 1990 WL 193674 at 4 (D.D.C. 1990), although the 

cour found that the FTC had failed to establish a viable product market, it said that "the 

evidence demonstrates that even if these customers constituted a separate market, their own size 

127 

~ - .,~ - ., 
and economic power, and the other characteristics of the 'market' make any anti-competitive 

consequences very unlikely." 

1358. The presence of 
 powerful buyers can be considered "along with other such factors as the 

ease of entry and likely efficiencies." Chicago Bridge & Iron Co. N V, 534 F.3d 410, 

440 (5th Cir. 2008) (quoting FTC v. Cardinal Health, 12 F.Supp. 2d 34,58 (D.D.C. 

1998). 

Response to Conclusion of Law No. 1358: 

Of course, the presence of powerful buyers "can" be considered along with other factors. 

Indeed, Respondent has produced evidence of many other "factors" in this case, which show that 

the acquisition has not had and wil not have any tendency to lessen competition substantially. 

Those factors are dealt with in Respondent's proposed findings of fact submitted earlier and 

listed in Respondent's response to Complaint Counsel's proposed conclusion of law number 23. 

The bigger issue is the one provoked by Complaint Counsel's proposed conclusion of law 

number 1357: whether the presence of powerful buyers alone can rebut a prima facie case or 

demonstrate that a merger or acquisition would be unlikely to lessen competition substantially? 

As noted in Respondent's response to Complaint Counsel's proposed conclusion oflaw number 

1357, courts have held that the presence of 
 powerful buyers can alone be an adequate defense. 

1359. The presence of 
 multiple supply alternatives is a critical factor in establishing the 

applicabilty of a power buyer argument. 

Response to Conclusion of 
 Law No. 1359: 

This proposed conclusion of law, for which no authority is cited, is false and irrelevant to 

the facts of this case. Respondent has produced evidence in this case to show that there are 

powerful buyers of PE separators who demand competitive markets, that there are many 

suppliers of PE separators in the global market and that entry barriers (including barriers to 

sponsored entry) are low. In light of these facts, any proposed conclusion of law that focuses on 

128 

- ' ., -- ., 
an absence of "multiple supply alternatives" is irrelevant. Respondent has submitted many 

proposed findings of fact bearing on these issues, which are identified in Respondent's responses 

to Complaint Counsel's proposed conclusions of law numbers 13, 19, 20, 23 and in
 

Respondent's proposed findings of 
 fact, numbers 1500 - 1623. 

1360. In order to show pre 
 competitive impact of power buyers Respondent must show that 

buyers continually play suppliers off against one another to establish a defense. United 

States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400, 1419 (S.D. Iowa 1991). 

Response to Conclusion of 
 Law No. 1360: 

This proposed conclusion of law is false and it is not supported by the decision in ArcherDaniels-Midland. Although the court noted that buyers generally "play suppliers off against one 

another," it entered no holding that such was necessary "to show (the) precompetitive (sic) 

impact of power buyers." Moreover, in many of 
 the other cases that have recognized and applied 

the "power buyer" defense, no such requirement has been inposed. United States v. Baker 

Hughes Inc., 908 F.2d 981,986 (D.C. Cir. 1990); FTC v. R.R. Donnelley & Sons Co., 1990 WL 

193674 at 3 (D.D.C. 1990); United States v. Country Lake Foods, Inc., 754 F. Supp. 669, 674 

(D. Minn. 1990). It is quite evident that powerful buyers in an industry can induce suppliers to 

offer competitive prices and other terms without "playing" suppliers "off against each other." 

Moreover, the evidence in this case shows that r
 

) . Respondent references and incorporates here its proposed
 

findings of fact relating to these matters, including numbers 306-311, 469 - 485 and 1500 ­

1623. 

1361. When the presence of 
 powerful customers with the ability to protect themselves from 

anticompetitive price increases has been established, the presence of smaller, less 

129 

- ~ - ., 
powerful customers in the relevant market invalidates a power buyer defense. United 

States v. United Tote, 768 F.Supp.l064 (D. DeL. 1991); FTC v. Cardinal Health, 12 

F.Supp. 2d 34, 40 (D.D.C. 1998). 

Response to Conclusion of 
 Law No. 1361: 

This proposed conclusion of law is false. The court in the Tote case identified some 109 

small purchasers (768 F. Supp. at 1085) and in Cardinal Health, the court believed there may 

have been 27,000 independent pharacies who were unlikely to be considered power buyers. 12 

F. Supp.2d at 60. The cour in United States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400,
 

1416 (S.D. Iowa 1991) recognized the power buyer defense despite the fact that it believed there 

were approximately 1000 soft drink bottlers who purchased HFCS. By contrast, in the instant 

case, there are few customers (no more than five) in North America that purchase SLI separators. 

This proposed conclusion of law is false, however, because the cours that have applied the 

power buyer defense have done so notwithstanding the existence of small customers. United 

States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400, 1416 (S.D. Iowa 1991); United States 

v. Baker Hughes Inc., 908 F.2d 981, 986 (D.C. Cir. 1990); FTC v. R.R. Donnelley & Sons Co., 

1990 WL 193674 at 3 (D.D.C. 1990); United States v. Country Lake Foods, Inc., 754 F. Supp. 

669,674 (D. Minn. 1990). 

1362. The presence of small buyers undermines a power buyer argument unless the smaller 

purchasers possess similar bargaining power to their larger counterpars, with a 

demonstrated ability to negotiate "meaningful discounts" from suppliers in the relevant 

market. United States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400, 1419 (S.D. 

Iowa 1991). 

Response to Conclusion of 
 Law No. 1362: 

This proposed conclusion of law, which appears to be an attempt to isolate and describe 

one aspect of one case, is false. The court in Archer-Daniels-Midland found that customers
 

generally negotiated prices and terms with suppliers; that some customers did not "play one 

130
 
supplier off against another," apparently believing that they received nonprice benefits; that other
 

customers were protected by suppliers believing the Robinson-Patman Act prevented them from
 

engaging in price discrimination; and that stil other buyers received benefits by entering into
 

tolling arangements with suppliers and forming cooperatives to enter into such arrangements.
 

781 F. Supp. at 1419-20. Thus, the Archer-Daniels-Midland cour identified various ways, in 

addition to the abilty to negotiate meaningful discounts, in which buyers protected themselves in
 

the HFCS market. Other cases that have recognized and applied the power buyer defense have
 

not imposed a requirement that smaller buyers be shown to have the ability to negotiate
 

meaningful discounts from suppliersintherelëvariliriifkef:UriÍtëd Slãtes v. Baker Hughes Inc.,
 

908 F.2d 981,986 (D.C. Cir. 1990); FTC v. RR Donnelley & Sons Co., 1990 WL 193674 at 3
 

(D.D.C. 1990); United States v. Country Lake Foods, Inc., 754 F. Supp. 669, 674 (D. Minn. 

1990). Moreover, the record in this case shows that the few purchasers of SLI separators in
 

North America II addition to ~
 

) . Respondent references and incorporates here its proposed 

findings of fact relating to these matters, including numbers 734 - 859 and 1500 - 1623. (See 

also RX01719, in camera). 

1363. The validity of 
 the power buyer argument depends, in part, on the ability ofthe large 

buyers to "directly affect the market price" of the input or product in question. United 

States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400, 1416 (S.D. Iowa 1991). 

Response to Conclusion of Law No. 1363: 

This proposed conclusion of law is false because, once again, it is apparently an attempt 

to focus merely on one aspect of a paricular case. As noted above in response to Complaint
 

Counsel's proposed conclusion of law number 1362, the court in Archer-Daniels-Midland took
 

notice of many ways in which smaller buyers were protected. Any such conclusion of law would
 

make no sense. Thus, in the instant case, a small number of SLI separator customers in North 

131 

- ., .~ 
America individually negotiate price and other terms for relatively long-term supply contracts 

for a differentiated product. These circumstances are completely different from those in ArcherDaniels-Midland where 1000 or more customers bought a homogeneous product for which a 

"market price" would be expected. The power buyer defense has been recognized and applied 

in other cases that did not require a showing that large buyers were able to directly affect the 

market price. United States v. Baker Hughes Inc., 908 F.2d 981,986 (D.C. Cir. 1990); FTC v. 

R.R. DonneUey & Sons Co., 1990 WL 193674 at 3 (D.D.C. 1990); United States v. Country 

Lake Foods, Inc., 754 F. Supp. 669, 674 (D. Minn. 1990). Respondent references and
 

incorporates here its response to Complaint Counsel's proposed conclusion oflaw number 1362. 

1364. Respondent has not demonstrated that it is constrained by power buyers. 

Response to Conclusion of 
 Law No. 1364: 

This proposed conclusion of law, which is actually a proposed conclusion of fact, is 

unsupported and false. Respondent has proffered many proposed findings of fact ~ 

). Respondent
 

references and incorporates here its proposed findings of fact relating to these facts, 306 - 311, 

469 - 485 and 1500 -1623, and RX 01719, in camera. 

1365. Post-acquisition evidence that is subject to manipulation by the party seeking to use it is 

entitled to little or no weight. In re Chi. Bridge & Iron Co. N v., 139 F.T.C. 553,583 

n.97 (F.T.C. 2005); Hospital Corp. of America v. FTC, 807 F.2d 1381, 1384 (7th Cir. 

1986) ("Post-acquisition evidence that is subject to manipulation by the party seeking to 

use it is entitled to little or no weight."); B.F Goodrich Co., 110 F.T.C. 207, 341 (1988). 

132 

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Response to Conclusion of Law No. 1365: 

This proposed conclusion of law is misleading because, when combined with Complaint 

Counsel's proposed conclusion of law number 1366, it concludes that a defendant or respondent 

would never be able to offer a defense in a post-consumation merger case because all of its 

evidence would be rejected as having been the subject of manipulation. Respondent
 

acknowledged in Respondent's Post-Trial Brief for Reopened Hearing at pp. 20-21 that postacquisition evidence may be rejected or given little weight if it is determined that it was the 

result of manipulation. However, Respondent also pointed out there that "several decisions have 

relied on post-acquisition evidence to determine that the acquisition had no anti 
 competitive 

effect. See e.g., United States v. Int'l Harester Co., 564 F.2d 769, 778 (ih Cir. 1977)(the 

evidence showed "intensification in competition since (the acquisition)"); Lektro-Vend. Corp. v. 

Vendo Co., 660 F.2d 255, 276 (ih Cir. 1981)(post acquisition evidence showed that "Vendo's
 

(the acquiring company) post-acquisition shares and profits dramatically declined"); Varney v. 

Coleman Co., 385 F. Supp. 1337 (D.N.H. 1974)(post-acquisition evidence showed that defendant 

lost money and market share); United States v. Falstaff 
 Brewing Corp., 383 F.Supp. 1020 (D.R.I. 

1974)("post-acquisition evidence showed that competition remained intense and that the 

acquired company's profits and market share declined after the geographic extension merger." 

660 F.2d at 276). 

1366. The events, transactions, and evidence presented by Respondent are subject to 

manipulation by it. This evidence is entitled to little or no weight. 

Response to Conclusion of 
 Law No. 1366: 

This proposed conclusion of law, which is actually a proposed conclusion of fact, is both 

false and ludicrous. By this proposed conclusion, Complaint Counsel would apparently consign 

all of Respondent's evidence, including the evidence presented at the main hearing and at the 

133 

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November 12 hearing, to the trash bin. Respondent believes that it can safely assume that the 

court wil not be tempted to adopt any such sweeping and draconian recommendation. Moreover, 

the main focus of the November 12 hearing was on the extent to which ~ 

). It 

must surely be clear to all, except apparently to Complaint Counsel, that these events were not 

"manipulated" by Respondent. While litigation 
 strategies may have their place, ~ 

) . Respondent references and incorporates here its
 

proposed findings of fact relating to these facts, numbers 306-311, 469 - 485 and 1500 - 1623. 

1367. Respondent has not produced any significant evidence rebutting the presumption of a 

violation of Section 7 of the Clayton Act and Section 5 of the FTC Act. Because 

Respondent did not produce evidence sufficient to rebut the presumption of a violation of 

Section 7 of the Clayton Act, the burden of producing further evidence of anticompetitive 

effects did not shift to Complaint CounseL. 

Response to Conclusion of Law No. 1367: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

23 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 23. 

1368. Although Complaint Counsel is not required to prove the existence of actual 

anti competitive effects resulting from the merger, such evidence, either in the form of 

unilateral post merger price increases or coordinated interaction, negates any attempt to 

rebut the FTC's primafacíe case, and independently establishes a violation of Section 7 

of the Clayton Act and Section 5 of the FTC Act. 

134 

n u_ ., - "i _. t
 -,
Response to Conclusion of Law No. 1368: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

24 to which no supplemental response by Respondent is necessary. , Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 24. 

1369. The Acquisition violates Section 7 of 
 the Clayton Act because "the effect of such 

acquisition may be substantially to lessen competition or to tend to create a monopoly." 

15 U.S.C. § 18. The Acquisition also constitutes an unfair method of competition in or 

affecting commerce in violation of Section 5 of 
 the FTC Act. 15 U.S.C. § 45. 

Response to Conclusion of 
 Law No. 1369: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

29. Respondent references and incorporates its response to Complaint Counsel's original 

conclusion of law number 29. Respondent supplements its original response as follows: 

Respondent references and incorporates herein its responses to Complaint Counsel's proposed 

conclusions oflaw numbers 1348 - 1378.
 

1370. Section 5 of the FTC Act prohibits "unfair methods of competition in or affecting 

commerce, and unfair or deceptive acts or practices in or affecting commerce." 15 

U.S.c. § 45(a)(1) (2008).
 

Response to Conclusion of 
 Law No. 1370: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

30 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 30. 

1371. Conduct that violates Section 1 or 2 of the Sherman Act is deemed to constitute an unfair 

method of competition and hence a violation of Section 5 of the FTC Act as well. FTC v. 

Cement Inst., 333 U.S. 683, 694 (1948); Fashion Originators' Guild v. FTC, 312 U.S. 

457,463-64 (1941). 

Response to Conclusion of 
 Law No. 1371: 

135 

- .. -- .,' ~ 
This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

31 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion of law number 31. 

1372. Prior to the Acquisition, Daramic engaged in monopolistic conduct and/or attempts to 

monopolize, which constituted unfair methods of competition in violation of Section 5 of 

the FTC Act. 

Response to Conclusion of Law No. 1372: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

39 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 39. 

1373. To meet its burden of proof under Count III of the Complaint, Complaint Counsel may 

establish an offense of monopolization or attempted monopolization patterned on 

standards ofliability under Section 2 of 
 the Sherman Act. Cement Inst., 333 U.S. at 694. 

Response to Conclusion of Law No. 1373: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

40 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 40. 

1374. Complaint Counsel makes out aprimafacie case of 
 monopolization, and gives rise to a 

presumption of violation, by demonstrating two elements: 1) the possession of 
 monopoly 

power in the relevant market and 2) the wilful acquisition or maintenance of that power 

as distinguished from growth or development as a consequence of superior product, 

business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 

570-71 (1966); see also United States v. Microsoft Corp., 253 F.3d 34,50 (D.C. Cir. 

2001). 

Response to Conclusion of Law No. 1374: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

41 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion of law number 41. 

136 

- ., -- ., 
1375. Complaint Counsel makes out a prima facie case of attempted monopolization, and gives 

rise to a presumption of 
 violation, by demonstrating four elements: 1) that the defendant 

possesses monopoly power, and 2) has engaged in predatory or anticompetitive conduct 

with 3) a specific intent to monopolize, and 4) a dangerous probabilty of success. Lorain 

Journal Co. v. United States, 342 U.S. 143, 154 (1951).
 

Response to Conclusion of Law No. 1375: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

42 to which no supplemental response by Respondent is necessary. Respondent references and 

incorporates its response to Complaint Counsel's original conclusion oflaw number 42. 

1376. Daramic's anticompetitive conduct meets the standards of 
 liability for monopolization or 

attempted monopolization under Section 2 of 
 the Sherman Act, and constitutes a 

violation of the FTC Act. 

Response to Conclusion of Law No. 1376:
 

This is a virtually verbatim duplication of Complaint Counsel's original conclusion of 

law number 52. Respondent references and incorporates its response to Complaint Counsel's 

original conclusion of law number 52, provided that in incorporating its earlier response, 

Respondent amends that response so that whenever the word, "exclusionary," is used, it be 

deemed to be "exclusionary or anticompetitive." Respondent also supplements its earlier 

response to incorporate herein its responses to Complaint Counsel's proposed conclusions of law 

numbers 1348 - 1378. 

1377. Complaint Counsel met its burden of proof in support of Count I, Count II, and Count III 

of the Complaint. 

Response to Conclusion of Law No. 1377: 

This is a verbatim duplication of Complaint Counsel's original conclusion of law number 

53. Respondent references and incorporates its response to Complaint Counsel's original 

conclusion of law number 53. Respondent also supplements its earlier response to incorporate 

137 

- .. 
herein its proposed findings of fact, numbers 1500 - 1623, and its responses to Complaint 

Counsel's proposed conclusions of law numbers 1348 - 1378.
 

1378. Divestiture is the appropriate and natural remedy. In re Chi. Bridge & Iron Co., 138 

F.T.C. 1024, 1161 (F.T.C. 2005). "The very words of § 7 suggest that an undoing of the 

acquisition is a natural remedy." United States v. E.I du Pont de Nemours and Co., 366 

U.S. 316, 329 (1961). Divestiture is "simple, relatively easy to administer, and sure. It 

should always be in the forefront of a court's mind when a violation of § 7 has been 

found." Du Pont, 366 U.S. at 330-1. 

Response to Conclusion of Law No. 1378: i 

This is essentially a duplication of Complaint Counsel's original conclusions of law 

numbers 54, 55 and 56. Respondent references and incorporates its responses to Complaint 

Counsel's original conclusions of law numbers 54, 55 and 56. Respondent also supplements its 

earlier response as follows: "Divestiture... is a harsh remedy which should not be ordered
 

without an opportunity for the presentation and consideration of less drastic alternative forms of 

relief appropriate to remedy the antitrust violation." Kennecott Coper Corp. v. Curtiss-Wright 

Corp., 449 F. Supp. 951, 968 (S.D.N.Y.), aj'd in part and rev'd in 
 part, 584 F.2d 1195 (2d Cir. 

1978); "(D)ivestiture is a severe remedy that is to be avoided when other forms of injunctive 

relief can adequately protect against further anticompetitive conduct without the same degree of 

economic dislocation." International Travel Arrangers v. NW A, Inc., 1990 U.S. Dist. LEXIS 

11723 at 9 (D. Minn. 1990). Where divestiture is necessary, it should be applied only to the 

assets involved in production in the market where a violation of Section 7 of the Clayton Act was 

found. United States v. Waste Management, Inc., 588 F. Supp. 498, 514 (S.D.N.Y. 1983)(total 

divestiture requested by the FTC rejected; divestiture limited to Dallas assets where a violation 

found since no violation found in Houston). 

138 

- , -- ., 
Dated: December 11, 2009 Respectfully Submitted,

Wi. Rikard, Jr. g.W~

Eric D. Welsh 

PARKER POE ADAMS & BERNSTEIN LLP 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

wiliamikard~parkerpoe.com 

ericwelsh~parkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN LLP 

150 Fayettevile Street
 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

johngraybeal~parkerpoe.com 

Attorneys for Respondent 

-_. ."
 - .. -- .. ~ 1 
CERTIFICATE OF SERVICE 

I hereby certify that on December 11, 2009, I caused to be fied one copy via 

electronic mail delivery and an original and two copies via hand delivery of the foregoing 

Respondent's Responses to Complaint Counsel's Proposed Findings of Fact and
 

Conclusions of Law on Reopened Hearing (PUBLIC), and that a paper copy with an 

original signature is being filed with: 

Donald S. Clark, Secretary 

Offce of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretar~ftc. gov 

I hereby certify that on December 11, 2009, I caused to be served one copy via 

electronic mail delivery and four copies via hand delivery of the foregoing Respondent's 

Responses to Complaint Counsel's Proposed Findings of Fact and Conclusions of Law 

on Reopened Hearing (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 December 11, 2009, I caused to be served via first-class 

mail delivery and electronic mail delivery a copy of the foregoing Respondent's
 

Responses to Complaint Counsel's Proposed Findings of Fact and Conclusions of Law 

on Reopened Hearing (PUBLIC) upon: 

J. Robert Robertson, Esq. Steven Dah, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rrobertson~ftc.gov sdah~ftc.gov 

B£;;eld/ L


PARKR POE ADAMS & BERNSTEIN LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 334-4706 

-- .,- - .,