UNITED STATES OF AMERICA ORIGINAL

BEFORE THE FEDERAL TRADE COMMISSION (.~~~

In the Matter of ) 

)

Polypore International, Inc., )

a corporation. ) 

) 

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 DEC r lj 200 ,)1 

~~ 5tl(, oS-~ J 

PUBLIC 

Docket No. 9327 

COMPLAINT COUNSEL'S POST-TRIAL REPLY
 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
 

ON THE REOPENED RECORD
 

RICHARD A. FEINSTEIN 

Director 

PETER 1. LEVIT AS 

Deputy Director 

Bureau of Competition 

CATHARIE MOSCA TELL!
 

Assistant Director 

MORRS BLOOM 

Deputy Assistant Director 

Bureau of Competition 

Mergers II 

1. ROBERT ROBERTSON 

STEVEN DAHM 

BENJAMIN ORIS 

JOEL CHRISTIE 

STEPHEN ANTONIO 

CHRISTIAN H. WOOLLEY 

PRIY A VISW ANA TH 

Federal Trade Commission 

Bureau of Competition 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

Telephone: (202) 326-2008 

Fax: (202) 326-2884 

Counsel Supporting the Complaint 

DECEMBER 10,2009 

. .. ''' i: " ~ 'i 
Table of Contents 

i. EXHIBIT AND WITNESS INDICES.. ................. ........................ ......... ........ .......... ....... ...1
 

II. PROCEDURAL BACKGROUND.... ............ ........ ........... ........................... ....................... 1
 

III. ~EXIDE'S CONDUCT FOLLOWING THE CLOSE OF THE RECORD ON JUE 22,
 

2009 J .............................................................................................................................. ..... 2
 

A.
 t l.................. 2
 

a.
 t L ................. .......... .......... ......... .................... 4
 

b.
 t L ..................... ............. .......................... ........ 13
 

B. t l.................................................. 18
 

a. t l............................. 19
 

b. t 

......................................................................23
 

c. t l ........................................................ 31
 

D. t 

...........................................................................54
 

E. t l.................................................................60
 

a. t ..............................................................................................63
 

b. t l ........................................... 73
 

F. t l...... ............... ................. .................... 99
 

IV. ~DARAMIC'S DECISION TO IDLE PE ASSETS AT OWENSBOROJ .................... 116
 

V. CONCLUSIONS OF LAW..................................................................... .124
 

VI. CONCLUSION........ ....................................... .......... ..... .............. ...... .............. ............... 133
 

- ----i, nn~__ '" -", -;
i. EXHIBIT AND WITNESS INDICES
 

II. PROCEDURAL BACKGROUND
 

1494. On June 22,2009, after a five-week hearing in this proceeding, the record was closed. 

Response to Findim!: No. 1494: 

Complaint Counsel has no specific response. 

l495. On September 25,2009, Respondent, Polypore International, Inc. ("Polypore or 

Respondent") moved for a second time to re-open the record in this proceeding to permit the 

introduction of 
 new and additional evidence (the "Second Motion to Re-open"). By its Second 

Motion to Re-open, Respondent sought leave to introduce new and additional evidence 

regarding (1) ~
 

and (2) ~
 

J, set forth in four proffers. 

Response to Finding: No. 1495: 

Complaint Counsel has no specific response for Respondent's first sentence in this 

Finding of 
 Fact. Complaint Counsel does not believe that Exide's conduct is an issue in this 

case, unlike the actual issues which are Respondent's merger to a monopoly in the Motive, UPS, 

and Deep-cycle markets, a decrease from three to two firms in the SL! market, Respondent's 

anticompetitive behavior, attempt to monopolize, and further monopoly power. 

1496. After briefing, the Honorable D. Michael Chappell granted Respondent's Second
 

Motion to Re-open.
 

Response to Finding: No. 1496: 

Complaint Counsel has no specific response. 

1497. On November 12,2009, in connection with the Second Motion to Re-open, a hearing 

was held before Administrative Law Judge ChappelL. At the November 12 hearing,
 

Respondent presented additional evidence to the Court through witnesses and exhibits
 

regarding the four proffers. Respondent called two witnesses: Mr. Robert Toth ("Toth"),
 

Chief Executive Offcer of Respondent and Mr. Harr D. Seibert ("Seibert"), Vice President 

and Business Director for Respondent's Daramic subsidiary. Respondent also cross-examined 

Mr. Douglas Gilespie ("Gilespie"), Vice President of Global Procurement for Exide, who was 

called by Complaint Counsel as their witness. Respondent introduced 46 exhibits which were 

admitted into evidence, some over Complaint Counsel's objections. (Tr. 5632-5642,5812, 

5841; Pre. Tr. LO-LL, 14-20). Complaint Counsel called only Gilespie in rebuttaL. The record 

of the November 12,2009 hearing was closed by Order dated November 23,2009. 
Response to Finding: No. 1497: 

Complaint Counsel has no specific response. 

1498. Respondent incorporates herein the definitions set forth in its Proposed Findings of Fact 

and Conclusions of 
 Law, submitted on July 10,2009. 

Response to Finding: No. 1498:
 

Complaint Counsel incorporates its responses, if any, to Respondent's definitions set
 

fourth in its reply to Respondent's Proposed Findings of Fact and Conclusions of 
 Law, submitted 

on July 10,2009. 

III. t 

A. 1 1 

1499. On May 28 and May 29, 2009, Gilespie testified in this proceeding. (JX-9).
 

Response to Finding: No. 1499:
 

Complaint Counsel has no specific response. 

1500. At the time of 
 the hearing this past spring, 

. (RXOI720, in camera). ~
 

. (Gilespie, Tr. 5807-08, in
 

camera; see also RFOF 524, 530, 53l). 

Response to Finding: No. 1500: 

Exide currently pays t L for SLI separators in North 

America under the North America Supply Agreement. (Gilespie, Tr. 3018-3020, 3059, in 

camera; see also Gilespie, Tr. 5807-5808, in camera (t 

l). 

2 
150 1. ~
 

J. (JX-9, in camera).
 

Response to Finding: No. 1501:
 

Complaint Counsel has no specific response. 

1502. ~
 

. (RX01119, in camera;


Hauswald, Tr. 1118; Gilespie, Tr. 3126, in camera; RXO ll20, in camera). 

Response to Finding: No. 1502: 

With respect to this finding of fact, these citations do not support the assertions. The 

citations to the trial transcript do not remotely relate to t 

l. The
 

documents cited do not support Respondent's contentions. (RXOII19, in camera; RX01120, in 

camera). Furthermore, Respondent's never stated nor does the citation demonstrate what year 

t 

L (RXOII19, in camera; Hauswald, Tr. 1118; Gilespie, Tr. 3126, in camera; 

RX01120, in camera). Certainly, Exide did not constitute t 

L Exide's relative share of 

Respondent's business. (Seibert, Tr. 5673, in camera). 

1503. ~
 

. (Gilespie, Tr.
 

5855-56, in camera). 

Response to Finding: No. 1503: 

To the extent that Respondent is asserting that the industrial battery business is 

insignificant to Exide, they are incorrect. Exide's industrial battery manufacturing facilities 

accounted for more than 35% of Ex ide's net sales in its most recent quarter. (RXOI726 at 006, 

3 
015; see also Gilespie, Tr. 5863, in camera (t 

l)). 

1504. At the time of 
 the hearing this past summer, ~ 

. (Seibert,
 

Tr. 5646-48, in camera; RXOI721, in camera). 

Response to Finding: No. 1504: 

t 

l. In
 

2007, Exide issued a Request for Proposal ("RFP") to battery separator manufacturers around the 

world. (Gilespie Tr. 2962). t 

l. (PX0922 (Roe, IH at 228, in camera)). t 

l. (PX1028 at
 

058-060, in camera; Roe, Tr. 1785-1786, in camera; see also Gilespie, Tr. 2966). Furthermore, 

t 

l. (RXOI666, in camera; RX01667, in camera; RX01668, in camera; RX01669, 

in camera; RX01683, in camera; RX01687, in camera; RXOI713, in camera; RX01714, in 

camera; RXO 1721, in camera). 

a. 1 1 

1505. t 

. (RXOI721 at 002, in camera; Seibert, Tr. 5648, in camera). 

4
 
Response to Finding: No. 1505: 

Complaint Counsel has no specific response. 

1506. ~
 

. (Seibert, Tr. 5648-49, 5662-63, in camera). 

(Seibert, Tr. 5682, in camera). Even this year, 

. (Seibert, Tr. 5681-83, in camera; RXOI724, in camera). 

. (Seibert, Tr. 5682-83, in camera; RXOI724, in camera). 

t 

Response to Finding: No. 1506: 

This is self-serving testimonial evidence regarding contentious negotiations between 

Daramic and Exide. The validity and trstworthiness of 
 Respondent's one-sided statements in 

ongoing negotiations should be given little or no weight. The statements are solely intended to 

further Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

Although Respondent claims that t 

l. (PX5076 (Seibert, Dep. Tr. 26, in camera)). In 

fact, the record indicates that a large portion of all battery separator purchases are completed 

without a contractual relationship between the buyer and the seller, and that firms can maintain 

their production lines. Most Microporous customers did not have actual supply contracts with 

Microporous. (Trevathan, Tr. 3773; Gilchrist, Tr. 614). t 

5 
l. (RXOOll6 at 004, in camera). t 

L square meters of separators from Entek on an annual basis without a contract. (Hall, Tr. 

2686-2687, 2690). 

To the extent that Respondent is asserting that the t 

l. In fact, when Respondent's counsel 

questioned Mr. Gilespie on this subject he stated the 

L (Gilespie, Tr. 5849-5850, in camera). Moreover, Exide's 

t 

l. (Gilespie, Tr. 5792, 5860, in camera). t 

l. (Gilespie, Tr. 5844-5845,5860, in camera; 

RXO 1724-00 1, in camera). 

l507. t 

. (Toth, Tr. 5648-49, in camera). t 

l. (Toth, Tr. 5749-50, in camera).
 

Response to Finding: No. 1507: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5748-5750, in 

camera). 

To the extent that Respondent is asserting that t 

l. (PX5076 (Seibert, Dep. Tr. 26, in camera)). In fact, the record indicates that a large 

portion of all battery separator purchases are completed without a contractual relationship 

between the buyer and the seller and that firms can maintain their production lines. Most 

6
 
Microporous customers did not have actual supply contracts with Microporous. (Trevathan, Tr. 

3773; Gilchrist, Tr. 614). t
 

l. (RX00116 at
 

004, in camera). From 2004-2007, JCI purchased over LOO milion square meters of 
 separators 

from Entek on an annual basis without a contract. (Hall, Tr. 2686-2687, 2690). 

1508. t 

. (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 (" 

)."), in camera). 

Response to Finding: No. 1508: 

This is self-serving testimonial evidence regarding contentious negotiations between 

Daramic and Exide. The validity and trstworthiness of 
 Respondent's one-sided statements in 

ongoing negotiations should be given little or no weight. The statements are solely intended to 

further Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

The allegation about the t 1 is outside the scope of the proffered facts, 

because it is not evidence that supports any of the four proffers. 

t 

l. (See e.g., RXOI713-003, in camera H 

l; see also RX01666 at 002, in camera; RXOl667 at 002, in camera; RXl668 at 002, 

in camera; RXO 1669 at 002, in camera; RXO l683 at 001, in camera; RXO l7l8 at 002, in 

7 
camera; RX01714 at 002, in camera). Mr. Seibert testified that all of the t 

l. (PX5076 (Seibert, Dep. at 33-34), in camera).l 

t 

L (PX5076 (Seibert, Dep. at 30-31), in camera). As 

recently as Daramic's October 2,2009 t 

l. (RXOl714 at 001-003, in camera). Moreover, Mr. Seibert testified at trial that 

Daramic has not t l. 

(Seibert, Tr. 5725, in camera). 

1509. t ). 

(Seibert, Tr. 5651, in camera). 

. (Seibert, Tr. 5668, in camera). 

Response to Finding: No. 1509: 

Any proposed t L is simply a reflection of the fact that Exide currently 

pays t L for SLI separators in North America. (Gilespie, Tr. 

3018-3020,3059, in camera). t 

l. (Hauswald, Tr. 763 (t
 

l); Bregman, Tr. 2901, in camera; Gilespie, Tr. 30l8­

3020, in camera; see also PX1026, in camera). t 

i Mr. Seibert evaded this question at trial and had to be impeached with his deposition testimony. (Seibert, Tr. 5703­

5706, in camera). 

8 
l. (Gilespie, Tr. 5807-5808, in camera).
 

Moreover, t 

l. (RX01714 at 001-003, in camera; 

Gilespie, Tr. 58l4, in camera; see also CCFOF l316-1320). 

Respondent's allegations that its t 

l. (CCFOF 1321; Seibert, Tr. 5668, in camera). 

1510. t 

. (Seibert, Tr.
 

5668, in camera). 

." (Seibert, Tr. 5668, in camera). 

Response to Finding: No. 1510: 

This is self-serving testimonial evidence regarding contentious negotiations between 

Daramic and Exide. The validity and trustworthiness of 
 Respondent's one-sided statements in 

ongoing negotiations should be given little or no weight. The statements are solely intended to 

further Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

t 

l. The fact that parties
 

are in negotiations and thus far have been unable to reach an agreement does not provide any 

evidence that Exide wields power in its negotiations with Daramic. In fact, the evidence 

establishes that the failure of Exide and Daramic to reach a supply agreement is because Daramic 

wields power over Exide. (See CCRF 1512). 

9 
Moreover, t 

l. (See CCRF 1509). 

Based on Mr. Seibert's testimony it is clear that Daramic does not have to t 

l. (CCFOF 1321; Seibert, Tr. 5668-5669, in camera); (RXOl669 at 002, in camera 

(Exide proposed t 

l); Gillespie, Tr. 

5808-5810, in camera; sße also CCFOF 1321). 

To the extent that Respondent alleges that any t offered by
 

Daramic to Exide is an indication that the SLI market is curently acting in a competitive 

fashion, such allegations are contradicted by facts which show that the SLI market was much 

more competitive with three competitors than it currently is with only two competitors. 

All three potential SLI suppliers in North America (Daramic, Entek and Microporous) 

were actively competing for t 

l. (Gilchrst, Tr. 423, 466-467, in camera).
 

During this same time period, t l. (Roe, Tr.
 

l685-1686, in camera; Hall, Tr. 2884, in camera). t 

l. (RX00072, in camera).
 

t 

l. (RX00072 at 54-6l, in camera). t 

10 
l. (RX00072 at 56, in camera). In comparison, the best t L
 

offered to Exide by Daramic for t 

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

5656, in camera). t 

l. (RX00072 at 56, in camera; 

RX01668 at 002; Seibert, Tr. 5656, in camera). 

1511. This Court finds Seibert to be a credible witness. Seibert's testimony is consistent with 

Respondent's exhibits. This Court credits Seibert's testimony in this matter. In contrast, for 

the reasons stated herein and previously, this Court does not find Gilespie to be a credible 

witness. The evidence adduced during the hearing on November 12 and May 28 and 29,2009 

demonstrates that Exide has attempted to manipulate this proceeding by intentionally refraining 

from certain relevant conduct until after the hearing record had been closed. Gilespie's 

testimony on May 28 and 29,2009 was rehearsed with Complaint Counsel, including Exide's 

"recommendation" of 
 relief. (RFOF 602). Accordingly, this Court does not credit Gilespie's 

testimony. 

Response to Finding: No. 1511: 

Respondent's ludicrous statcmcnts arc outside of 
 the scope and are only dealing with 

alleged facts that arose in the first hearing in this matter. This is self-serving testimonial 

evidence regarding contentious negotiations between Daramic and Exide. The validity and 

trustworthiness of 
 Respondent's one-sided statements in ongoing negotiations should be given 

little or no weight. The statements are solely intended to further Respondent's negotiation and 

litigation postue in its unresolved dispute with Exide. 

t 

l. The fact that parties 

are in negotiations and thus far have been unable to reach an agreement does not provide any 

evidence that Exide wields power in its negotiations with Daramic. In fact, the evidence 

11 
establishes that the failure of Ex ide and Daramic to reach a supply agreement is because Daramic 

wields power over Exide. (See CCRF 1512). 

Respondent's allegation that Exide has attempted to manipulate this proceeding is 

inaccurate. At no time did Exide intentionally refrain from certain relevant conduct until after 

the hearing record closed. (See CCRF 1543). 

The determination of the credibility of Mr. Seibert and Mr. Gilespie is a legal 

conclusion, not a factual assertion. However, Mr. Seibert is not a credible witness and has been 

caught by Complaint Counsel on several occasions changing his story. (See CCFOF 1345­

1347). One example of 
 Mr. Seibert's lack of credibility relates to t 

l. (PX5076 (Seibert, 

Dep. at 27), in camera). At the end of 
 the deposition, after a lengthy break and under redirect, 

Mr. Seibert testified that t 

l. (PX5076 (Seibert, Dep. at 102), in camera). 

In his deposition testimony, Mr. Seibert made no mention of t 

l. Yet, at trial, Mr. Seibert testified that t
 

L (Seibert, Tr. 5703, in camera). Mr. 

Seibert's testimony at trial, that he had communicated at his deposition that Daramic had 

t l. (Seibert, Tr. 5703, 

in camera; PX5076 (Seibert, Dep. at 102), in camera). 

Respondent's bare assertions regarding Mr. Gilcspie's credibility are not only 

unsupportcd by citations to the voluminous record, but merely speculation and conjecture 

regarding Exide's intentions. Mr. Gilespie has given three depositions and several days of
 

testimony at trial, yet Respondent can not cite to any lies that would directly affect his 

12 
credibility. Instead, Respondent had made an unfounded assertion about a neutral third part's 

credibility. 

b. 1 1 

1512. After Gilespie testified in this hearing on May 28 and 29,2009, 

. (Seibert, Tr. 5650, in camera; RX01665, in camera). t 

." (RX01665

at 001, in camera). 

Response to Finding: No. 1512: 

Respondent's assertion regarding t 

that Exide was not able to dictate its alleged demands to 

Daramic can be found in the fact that during the course of negotiations, Exide t 

l. Proof 


l. 

(RX01665 at 002, in camera; RX1250 at 001, in camera; RX01668 at 002, in camera). Daramic 

refused to provide Exide with t 

l. (RX01668 at 002, in camera; RX01687, in 

camera). Second, Exide sought to have t 

l. (RXO 1665 at 002). Daramic refused to agree to this t 

l. (RX01668 at 002, in camera). 

13 
Third, Exide sought a t 

l. (RX01668 at 002, in camera). 

Moreover, contrary to Respondent's contention that Exide was able to dictate terms to 

Daramic, Daramic t 

l. (RX01714 at 003, in camera; 

RX01720 at 039, in camera). Similarly, Daramic never agreed to Exide's request for 

t 

l. (RX1714,
 

in camera). In fact, contrary to Mr. Toth's testimony that Daramic offered Exide t 

l. (RX1714, in camera). t
 

l. (RX01665 at 002-003, in 

camera). t 

l. (RX01687, in camera).
 

1513. t 

. (Seibert, Tr. 5650-51, 5697, 5669-70, in camera; RXOl665 at

002-003, in camera). 

Response to Finding: No. 1513: 

l4 
Respondent's use of t 

L is a gross overstatement of what occurred. In fact, 

t 

l. (See CCRF 1512; see, e.g., 

RX01687 at 003, in camera (t l); 

RXOl714 at 003, in camera (t 

l). 

Tö the extent that Respondent alleges that Daramic conceded to Exide's alleged 

"demand(sJ" with regards to t L for a new contract, such allegations are not true. First, 

Exide's t 

l. (RX01665 at 004, in camera). But within one month's time, Exide 

indicated that it would be wiling to t 

l. (RX01669 at 002, in camera). Second, 

Daramic was never wiling to t 

l. (See CCFOF 1321). Third, Daramic's proposed t 

l. (Gilespie, Tr.
 

5807-5808, in camera; see also CCFOF 1326-1327). Fourth, all of 
 Daramic's proposed t 

l. (CCFOF 1316-1322). 

1514. In addition, t 

15 
). (RX01665 at 003, in camera). 

, (Gilespie, Tr. 2934, in camera), and is further evidence that t 

) and therefore, contrary to Complaint Counsel's assertions, there are no 

significant barriers to entry for battery separators due to testing, whether for automotive, 

motive or some other application or use. 

Response to Finding: No. 1514: 

Respondent's assertion that Mr. Gilespie's t 

l. (Gilespie, Tr. 2934, in camera). t 

l. (RX01665 at 003, in 

camera). 

In fact, contrary to Mr. Toth's testimony that Daramic offered Exide t 

l. (RXl714, in camera).
 

The assertions made by Respondent's about the time it takes to test different separator 

end-uses in the third sentence of this finding is outside of the scope of the four proffers of the 

second hearing; thus, is improperly included in these findings of fact. 

1515. t 

. (Seibert, Tr. 5670, in camera; RXO 1697,

in camera).
 

Response to Finding: No. 1515:
 

t
 

l. (See
 

16 
CCRF 1509). Moreover, Daramic has not t 

l. (See CCRF l509). 

1516. At the hearing,
 

" (Gilespie, Tr. 5852, in camera). t
 

. (RXOl665 at 001, in camera).
 

. This
 

Cour finds Gilespie's testimony not to be credible and further finds that Exide has attempted 

to manipulate this proceeding to its benefit. 

Response to Finding: No. 1516: 

This is self-serving testimonial evidence regarding contentious negotiations between 

Daramic and Exide. The validity and trstworthiness of 
 Respondent's one-sided statements in 

ongoing negotiations should be given little or no weight. The statements are solely intended to 

further Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

Moreover, this finding calls for a legal conclusion, which is improper. 

Respondent's assertion Exide's t 

L (RX01665 at 001, in camera). t 

l. (RX01665, in camera).
 

Moreover, Respondent's allege that Mr. Gilespie's testimony is in some way 

inconsistent with the t l; therefore, his testimony should be discounted. 

However, Mr. Gilespie's testimony is entirely consistent with the actions Exide took. At trial 

Mr. Gilespie stated that t 

17 
l. (Gilespie, Tr. 5852, in camera). None 

of Mr. Gilespie's testimony that Respondent cited discusses why t 

l. Respondent is simply ignoring the record evidence 

and developing its own story from wild speculation and conjecture as to the true reason for the 

t l. 

Respondent's last sentence is a legal conclusion and not a factual conclusion. Moreover, 

the assertion made in Respondent's last sentence is unsupported by any evidence. 

B. 1 1 

1517. t 

. (RX01713, in camera; RX01667, in camera; Seibert, Tr. 5665, in camera). t 

). 

(RXOl713 at 002, in camera). 

. (RXOl713 at 003; Seibert, Tr. 5657, in camera). 

Response to Finding: No. 1517: 

This is self-serving testimonial evidence regarding contentious negotiations between 

Daramic and Exide. The validity and trstworthiness of 
 Respondent's one-sided statements in 

ongoing negotiations should be given little or no weight. The statements are solely intended to 

further Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

Moreover, this finding calls for a legal conclusion, which is improper. 

t 

l. (See
 

CCRF 1509). Moreover, Daramic has not t 

l. (See CCRF 1509).
 

18
 
Importantly, Daramic continued to t 

l. (See generally, CCFOF l069-l078). t 

l. (RX01714 at 001-003,
 

in camera). t 

l. (Gilespie, Tr. 5814-5815,5865-5866, in 

camera). 

a. 1 1 

1518. t 

. (Seibert, Tr. 5651-53, 5655, in camera;

RX01617, in camera).
 

Response to Finding: No. 1518:
 

Complaint Counsel has no specific response.
 

1519. t 

(Seibert, Tr. 565l-52, 5670, in camera). t 

(Seibert, Tr. 5652, in camera). t l. (Seibert,
 

Tr. 5652, in camera). 

. (Seibert, Tr. 5658, in camera). 

Response to Finding: No. 1519: 

The citation in the third sentence does not reference Mr. Gilespie agreeing with 

Daramic's rationale. (Seibert, Tr. 5652, in camera). 

Mr. Seibert's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth ofthe matter asserted. (Seibert, Tr. 5651-5652, 5658, 

5670 in camera). The statements attributed to Mr. Gilespie are being offered for the truth of the 

matter asserted, not for the state of mind of 
 the one testifying to the statement, and thus, are 

19 
inadmissible hearsay and should be stricken. (Order on Post Trial Briefs, dated June 16,2009). 

Complaint Counsel and Respondent agreed that any testimony provided by Mr. Seibert or Mr. 

Toth regarding statements made by Exide officials would be admitted solely for the state of mind 

of Mr. Seibert or Mr. Toth, and not for the trth of the matter asserted. (Seibert, Tr. 5660-566l, 

in camera; Toth, Tr. 5740, in camera). 

Per the Court's June 16,2009 Order on Post Trial Briefs, the parties shall 

"not cite to testimony for the truth of the matter asserted if the 

testimony was admitted over objection for a purpose other than for 

the truth of the matter asserted. If such testimony is cited, the 

part must indicate in its brief or proposed findings that the 

testimony was elicited for a purpose other than for the truth of the 

matter asserted." 

(Order on Post Trial Briefs, dated June 16,2009). Respondent's proposed finding violates this 

provision ofthe Court's order in two ways. First, it cites to Mr. Seibert's testimony for the truth 

of statements made by Mr. Gilespie. Second, it fails to indicate that the statement of Mr. 

Gilespie was elicited solely for the state of 
 mind ofMr. Seibert. In addition in a separate 

provision, the Court's order states that the parties shall "not cite to evidence that was admitted 

for a limited purpose for any purpose other than the theory for which it was admitted. (Order on 

Post Trial Briefs, dated June 16,2009). Respondent's proposed finding violates this provision 

of the Court's order by citing Mr. Seibert's testimony for a purpose other than his state of mind, 

the theory for which it was admitted. 

Although Respondent claims that t 

l. (PX5076 (Seibert, Dep. Tr. 26, in camera)). In 

fact, the record indicates that a large portion of all battery separator purchases are completed 

without a contractual relationship between the buyer and the seller and firms can maintain their 

production lines. (See CCRF l506). 

20 
1520. t 

. (Seibert, Tr. 5652-53, in camera). t 

(RX01667 at 002, in camera; Seibert, Tr. 5658, in camera). t 

. (Gilespie, Tr. 5858, in camera). 

Response to Finding: No. 1520: 

This is self-serving testimonial evidence regarding contentious negotiations between 

Daramic and Exide. The validity and trustworthiness of 
 Respondent's one-sided statements in 

ongoing negotiations should be given little or no weight. The statements are solely intended to 

further Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

The statements attributed to Mr. Gilespie are being offered for the truth of the matter 

asserted, not for the state of mind of the one testifying to the statement, and thus, are 

inadmissible hearsay and should be stricken. (Order on Post Trial Briefs, dated June 16,2009; 

see also CCRF 1519). 

Moreover, t 

l. In fact, Respondent's counsel at the hearing asked t 

l 

(Gilespie, Tr. 5858, in camera). 

1521. t 

. (RX01667 at 002; Seibert, Tr. 5670, in camera). 

Response to Finding: No. 1521: 

Mr. Seibert's testimony that he understood that t 

is self-serving testimonial evidence regarding contentious negotiations between Daramic and 

Exide. The validity and trustworthiness of 
 Respondent's one-sided statements in ongoing 

21
 

l 
negotiations should be given little or no weight. The statements are solely intended to further 

Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

To the extent that Respondent alleges that Daramic conceded to Exide's alleged 

t L for a new contract, such allegations are not true. First, Exide's t
 

l. 

(RXOl665 at 004, in camera). But within one month's time, Exide indicated that it would be 

wiling to t 

l. (RX01669 at 002, in camera). Second, Daramic's proposed t 

l. 

(Gilespie, Tr. 5807-5808, in camera; see also CCFOF 1326-1327). Third, all of Daramic's 

proposed t 

l. (CCFOF 1316-1322). Fourth, 

Respondent's allegations that its t 

l. (See CCRF 1509).
 

To the extent that Respondent alleges that any t offered by 

Daramic to Exide is an indication that the SLI market is curently acting in a competitive 

fashion, such allegations are contradicted by facts showing the SLI market was much more 

competitive with three competitors than it currently is with only two competitors. 

t 

22
 
l. (RX00072 at 054-061, in camera). t 

l. (RX00072 at 056, in camera). In comparison, the t 

L offered to Exide by Daramic for t 

l. (RX01668 at 002, in camera; Seibert, Tr. 

5656, in camera). t 

l. (RX00072 at 56, in camera; 

RX01668 at 002; Seibert, Tr. 5656, in camera). 

b. t 

1522. t 

. (RXOI668, in camera; RX01669, in

camera; Seibert, Tr. 5658-59, 5662, in camera). t 

. (RXO 1668 at 002, in camera; Seibert, Tr. 5659-60, in camera; 

Gilespie, Tr. 5839, in camera). 

Response to Finding: No. 1522: 

Respondent's assertion that there had been t L is self-serving 

testimonial evidence regarding contentious negotiations between Daramic and Exide. The 

validity and trustworthiness of 
 Respondent's one-sided statements in ongoing negotiations 

should be given little or no weight. The statements are solely intended to further Respondent's 

negotiation and litigation postue in its unresolved dispute with Exide. 

Respondent fails to acknowledge that Exide's t 

l. (RX01668 at 002, in camera). 

23
 
Additionally, on the same t 

l. 

(RX01668 at 002, in camera). Moreover, t 

L (RX01704 at 001, in 

camera). Furthermore, t 

l. (RX01687 at 002, in camera). 

However, none of Exide's scenarios mattered because all of 
 Daramic's proposed t 

l. (CCFOF 1316-1322; see e.g., RX01713-003, in 

camera t 

l; Toth, Tr. 5750-575l, in 

camera; Seibert, Tr. 5663-5664 (t 

l; see also 

RX01666 at 002, in camera; RX01667 at 002, in camera; RX1668 at 002, in camera; RX01683 

at 001, in camera; RX01718 at 002, in camera; RX01714 at 002, in camera). 

1523. At the same time
 

(RXO 1668 at 002 

U J), in camera; 

Seibert, Tr. 5734, in camera). 

Response to Finding: No. 1523: 

Respondent fails to acknowledge that Exide's t 

l. (See CCRF l522). 

24 
To the extent that Respondent alleges that Daramic conceded to Exide's alleged 

t L for a new contract, such allegations are not true. (See CCRF 1521).
 

t 

l. (See
 

CCRF 1509). Respondent's allegations that t 

l. (See CCFOF 1321). 

To the extent that Respondent alleges that any t offered by 

Daramic to Exide is an indication that the SLI market is curently acting in a competitive 

fashion, such allegations are contradicted by facts which show that the SLI market was much 

more competitive with three competitors than it currently is with only two competitors. (See also 

CCRF 1521). t 

l. (Gilespie, Tr. 5814-5815, 5865-5866, in
 

camera). Mr. Seibert confirmed at trial that t 

l. (Seibert, Tr. 5726, in camera2; see also CCRF 

1527). 

1524. Upon learning that t 

(Seibert, Tr. 5660, in camera). 

. (RXOl720 at 035, in

camera; Seibert, Tr. 5660, in camera). t 

(Seibert, Tr. 5660, in camera). 

Response to Finding: No. 1524: 

Respondent's assertion that t L is self-


serving testimonial evidence regarding contentious negotiations between Daramic and Exide. 

2 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). 

25 
The validity and trustworthiness of 
 Respondent's one-sided statements in ongoing negotiations 

should be given little or no weight. The statements are solely intended to further Respondent's 

negotiation and litigation posture in its unresolved dispute with Exide. 

Respondent fails to acknowledge that Exide's t 

l. (RX01668 at 002, in camera). 

Additionally, on the same t 

l. 

(RX01668 at 002, in camera). Moreover, Mr. Ulsh in a letter to Mr. Toth, t 

L (RX01704 at 001, in 

camera). Furthermore, t 

l. (RX01687 at 002, in camera). 

Moreover, Polypore's own document anticipated at 

l. (RX01692 at 002, in camera). 

Daramic expects to t 

l. (CCFOF 1253 - 1255, 1305 - 1306). However, Daramic has never t 

l. (CCFOF 1312 - 1315). Because Daramic is t 

l. (CCFOF 1321). Finally, Daramic has 

repeatedly refused to offer to supply Exide with t 

l. (CCFOF 13l7). 

1525. t 

(Seibert, Tr. 5660-61, in camera). 

26 
t 

. (Seibert, Tr. 5661, in camera). 

Response to Finding: No. 1525:
 

Mr. Seibert's testimony cited by Respondent with respect to his discussion with Exide is
 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Seibert, Tr. 5660-5661 in 

camera). The statements attributed to Mr. Gilespie are being offered for the truth of the matter 

asserted, not for the state of mind of the one testifying to the statement, and thus, are 

inadmissible hearsay and should be stricken. (Order on Post Trial Briefs, dated June 16,2009; 

see also CCRF 1519). 

Respondent fails to acknowledge that Exide's t 

l. (See CCRF 1524). 

Polypore's own document anticipated at 

l. (See CCRF 1524). 

At trial Mr. Seibert was asked if 
 Exide had ever informed him that it intended to t 

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

L PX5076 (Seibert, Dep. at 49), in camera). What Mr. Seibert 

does know is that t 

l. (PX5076 (Seibert, Dep. at 74), in camera). Mr. Gilespie testified that t 

l. (Gilespie, Tr. 5826, 5838, in
 

camera). Moreover, Exide has t 

l. (Gilespie, Tr. 5868, in camera).
 

27
 
1526. In subsequent discussions, t 

. (Seibert, Tr. 5662-63, 5666, in camera; Toth, Tr. 5749-50, in camera; RX017l4 at 002, in camera; RX01718 at 002, in 

camera). In addition, 

. (Seibert, Tr. 5663-65, in camera; Toth, Tr. 5750-51, 5760-61, in camera; 

RX01718 at 002, in camera; RX01683, in camera; RX01714 at 002, in camera). t 

). 

Response to Finding: No. 1526: 

Respondent's assertion that it t 

L is self-serving testimonial evidence regarding contentious 

negotiations between Daramic and Exide. The validity and trustworthiness of Respondent's one-


sided statements in ongoing negotiations should be given little or no weight. The statements are 

solely intended to further Respondent's negotiation and litigation posture in its unresolved 

dispute with Exide. 

t 

l. The fact that parties 

are in negotiations and thus far have been unable to reach an agreement does not provide any 

evidence that Exide wields power in its negotiations with Daramic. In fact, the evidence 

establishes that the failure of Exide and Daramic to reach a supply agreement is because Daramic 

wields power over Exide. (See CCRF l512). 

l. (CCFOF 1317,
 

1322; see generally, CCFOF 1069- 1078). t 

l. (See CCRF 1509). 

28 
1527. t 

. (Seibert, Tr. 5732-34, in camera).
 

Response to Finding: No. 1527:
 

Respondent's assertion that t 

L is self-serving testimonial evidence regarding contentious negotiations 

between Daramic and Exide. The validity and trstworthiness of 
 Respondent's one-sided 

statements in ongoing negotiations should be given little or no weight. The statements are solely 

intended to further Respondent's negotiation and litigation posture in its unresolved dispute with 

Exide. 

t 

l. The fact that parties
 

are in negotiations and thus far have been unable to reach an agreement does not provide any 

evidence that Exide wields power in its negotiations with Daramic. In fact, the evidence 

establishes that the failure of Exide and Daramic to reach a supply agreement is because Daramic 

wields power over Exide. (See CCRF l512). 

Mr. Seibert testified that all of 
 the t 

l. (PX5076 (Seibert, Dep. at 33-34), in camera).3 t 

L (PX5076 (Seibert, Dep. at 30-3l), in camera). As recently as Daramic's October 2, 

2009 t 

l. (RX01714 at
 

J Mr. Seibert evaded this question at trial and had to be impeached with his deposition testimony. (Seibert, Tr. 5703­

5706, in camera). 

29 
001-003, in camera). Mr. Seibert testified at trial that Daramic has not t 

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

t 

l. (See
 

CCRF 1509). Furthermore, Respondent's allegations that t 

l. (See CCRF 1524; 

CCFOF 132l)~ 

To the extent that Respondent alleges that any t offered by 

Daramic to Exide is an indication that the SLI market is curently acting in a competitive 

fashion, such allegations are contradicted by facts which show that the SLI market was much 

more competitive with three competitors than it currently is with only two competitors. (See also 

CCRF 1521). 

Lastly, Daramic has never t 

l. 

(CCFOF 1312-1315). t 

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

could not testify as to t 

L (PX5076 (Seibert, Dep. at IOl), in camera). Mr. Seibert confirmed at trial that t 

l. 

(Seibert, Tr. 5726, in camera).4 Mr. Seibert was unable to even t 

l. (Seibert, Tr. 5725,
 

4 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). 

30 
in camera). Mr. Seibert could not testify about t 

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

Moreover, Mr. Seibert testified that t 

l. 

(PX5076 (Seibert, Dep. at 101), in camera). Mr. Gilespie testified that t 

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

1528. t 

. (Seibert, Tr. 5645, in camera; Gilespie, Tr. 5851, in camera; RX01665, in camera; 

RX01669 at 002, in camera; RX01687, in camera). 

Response to Finding: No. 1528: 

The fact that the parties are in negotiations and thus far have been unable to reach an 

agreement does not provide any evidence that Exide yields power in negotiations with Daramic. 

t l. In October 2009, after 

Daramic t 

l. (Gilespie, Tr. 5815, in
 

camera). According to Mr. Gilespie, Daramic's immediate response was that it t 

l. (Gilespie,
 

Tr. 5865-5866, in camera). 

c. 1 1
 

1529. After the record was closed on June 22, 2009, t
 

(RXOI676, in camera; Seibert, Tr. 5674, in camera; Gilespie, Tr. 5845, in camera). 

31
 
(Seibert, Tr. 5673-74, 5676-77, in camera; Gilespie, Tr. 5845-46, in camera; RX01676, in 

camera). f 

. (RXOI676, in


camera; JX-9, in camera; Gilespie, Tr. 5839, 5843, in camera). Specifically, f 

HRX01676, in camera). 

Response to Finding: No. 1529: 

The contention that Exide's t L began "after the record was closed" is 

wrong. Exide first t 

prior to the close ofthe record. (RX01676 at 001, in camera). Furthermore, Exide had 

previously informed Daramic of its intention to t 

l. (CCFOF 1261-1262, 1267-1268). t 

). (CCFOF 1262, 1265-1266). Additionally, on June 2, 2009 Mr. Seibert 

32 

l 
acknowledged that Daramic had received t l. (CCFOF 

l264; PX5076 (Seibert, Dep. at lO-l1, in camera). 

Moreover, to the extent that Respondent alleges that Exide wil in fact have t 

l, such allegation is contradicted by the facts in 

the record. In fact, Daramic t 

l. (Gilespie, Tr. 5860, in camera; CCFOF 1283-1288). t 

l. (Gilespie, Tr. 5799, in
 

camera). 

Furthermore, Respondent's allegations that Exide t 

l. (CCFOF 1267­

1268). Mr. Gilespie testified that t 

l. (Gilespie, Tr. 5818, 5823, 5829, in camera).
 

t 

l. (CCFOF 1276). 

1530. t 

. (RXO 1667 at 001, in camera; RXO 1670 at

OOl, in camera; RX01671 at 001, in camera; Seibert, Tr. 5675-76, in camera; Gilespie, Tr.
 

5844, in camera).
 

33 
Response to Finding: No. 1530: 

The contention that Daramic was not aware of the t 

l. During the first half of 2009, Exide informed Daramic of its intention to t 

l. 

(CCFOF l261-l262, 1267-1268). Daramic knew precisely t 

l. (RXOl720 at 019, in camera). Moreover, on June 2, 

2009 Mr. Seibert acknowledged that Daramic had received t 

l. (CCFOF 1264; PX5076 (Seibert, Dep. at lO-l1, in camera). 

1531. f 

. (Seibert, Tr. 5673-74, 5679, in camera). t 

(Gilespie, Tr. 5842-43, in camera). 

. (Gilespie, Tr. 5843, in camera; Toth, Tr.
 

5752-53, in camera; RX01686, in camera). 

Response to Finding: No. 1531: 

To the extent that Respondent alleges that Exide wil in fact have t 

l, such allegation is contradicted by the facts in the record. In fact, 

Daramic t 

l. (Gilespie, Tr. 5860, in camera; CCFOF l283-l288). t 

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

34
 
To the extent that Respondent contends that Exide does not t 

L (Gilespie, Tr. 5859, in camera).
 

Furthermore, Respondent's allegations that Exide t
 

l. (CCFOF 

1267-1268). Mr. Gilespie testified that t 

l. (Gilespie, Tr. 5818,5823,5829, in camera). 

Moreover, the statements attributed to Mr. Ulsh are being offered for the truth of the 

matter asserted, not for the state of mind of the one testifying to the statement, and thus, are 

inadmissible hearsay and should be stricken. (Order on Post Trial Briefs, dated June 16,2009; 

see also CCRF 1519). 

1532. Based on past practice, 

. (Seibert, Tr. 5671, in camera; JX-9, in camera). In contrast, f 

. (RXOI676, in camera; JX-9, in camera; Seibert, Tr. 5673-74, in


camera; Gilespie, Tr. 5839, in camera).
 

Response to Finding: No. 1532: 

t 

l. (Gilespie, Tr. 5806, 5833, in camera).
 

35 
To the extent that Respondent alleges that Exide wil in fact have t 

L, such allegation is contradicted by the facts in the 

record. Daramic t 

l. (Gilespie, Tr. 5860, in camera; CCFOF 1283-1288). t 

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

Respondent's allegations that Exide t 

l. (CCFOF 

1267-l268). Mr. Gilespie testified that t 

l. (Gilespie, Tr. 58l8, 5823, 5829, in camera).
 

1533. f 

. (Seibert, Tr. 5671, in
 

camera). t
 

(Seibert, Tr. 5672, in
 

camera; RXOI723, in camera). 

. (Seibert, Tr.
 

5673, in camera; RXO l708 ( 

), in camera.) 

Response to Finding: No. 1533: 

t 

36
 
l. (Seibert, Tr. 5672, in camera). t 

l. 

(CCFOF 1260). t 

l. (CCFOF l276). 

1534. t 

. (Seibert, Tr. 5678-79, 5709-l0, in camera). t 

. (RXO l698,
 

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

. (RX01699, in camera; Seibert, Tr. 5672-73, in camera).
 

Response to Finding: No. 1534: 

To the extent that Respondent alleges that Exide wil in fact have t 

l, such allegation is contradicted by the facts in the 

record. Daramic t 

l. (Gilespie, Tr. 5860, in camera; CCFOF l283-1288). t 

l. 

(CCFOF 1288). 

t 

l. (CCFOF 1276). 

1535. f 

, (Seibert, Tr. 5674, in 

37 
camera), t ). (Seibert,


Tr. 5683, in camera). t 

l. (Seibert, Tr. 5682-83, in camera; RXOl724, in camera). t 

(RXOl723, in camera; Gilespie, Tr. 5837, in camera). 

Response to Finding: No. 1535: 

To the extent that Respondent alleges that Exide wil in fact have t 

L, such allegation is contradicted by the facts in the record. In fact, 

Daramic t 

l. (Gilespie, Tr. 5860, in camera; CCFOF 1283-l288). 

To the extent that Respondent alleges that it was unaware of the t 

l. During the first half of 

2009, Exide had informed Daramic of 
 its intention to t 

l. (CCFOF l261-1262, l267-1268). 

Daramic knew precisely t 

l. 

(RXOl720 at Ol9, in camera). Moreover, on June 2, 2009 Mr. Seibert acknowledged that 

Daramic had received t l. (CCFOF 1264; PX5076
 

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

t 

l. (CCFOF 1271). Despite this, 

Daramic is not allowing Exide the option of t 

38 
l. 

(CCFOF l271; RX01693 at 001, in camera (t 

l).
 

t
 

l. (CCFOF 1276). 

1536. Moreover,
 

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

(Seibert, Tr. 5682-83, in camera; RXOl724, in camera). f 

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

t 

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

For example, 

(RXOl724, in camera). Similarly, 

. (RXOl724, in camera). t 

). 

Response to Finding: No. 1536:
 

The statement that Exide' s t
 

l. The validity and
 

trustworthiness of 
 Respondent's one-sided statements in the ongoing dispute over t 

L should be given little or no weight. The statements are solely intended to further 

Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

Mr. Gilespie testified that t 

l. (Gilespie, Tr. 5849-5850, in camera). t
 

39 
l 

(RX01693 at 002, in camera (emphasis added)). t 

l. (CCFOF l261, 1283, 1288). 

t 

l. (Gilespie, Tr. 5799,5804-5805,58221-5823, in camera). 

1537. t
 

. (Seibert, Tr. 5683, in camera).
 

." (RX01717, in camera; Gilespie, Tr. 5848-49, in camera; Seibert, Tr. 5683-84, in 

camera). Here,
 

. (Seibert, Tr. 5676-77, 5732, in camera). 

Response to Finding: No. 1537: 

t 

L (RX01693 at 002, in camera (emphasis added)). This is corroborated by Mr. 

Gilespie's testimony that t 

40
 
l. (Gilespie, Tr. 5849-5850, in camera). t 

l. (CCFOF 126l, 1283, 1288). 

To the extent that Respondent alleges that it was unaware of the t 

l. During the first half of 

2009, Exide had informed Daramic of 
 its intention to t 

l. (CCFOF l26l-l262, 1267-l268). 

Daramic knew precisely t 

l. 

(RXOl720 at 019, in camera). Moreover, on June 2, 2009 Mr. Seibert acknowledged that 

Daramic had received t l. (CCFOF 1264; PX5076
 

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

t 

l. (CCFOF 1262). t 

l. (Gilespie, Tr.
 

5792-5793, in camera). t
 

l. (Gilespie, Tr. 5830-5831, in camera).
 

t 

l. (Gilespie, Tr. 5831-5832, in camera).
 

l538. f 

41 
* * *
 

l .
 

(Gilespie, 5842-43, in camera). 

Response to Finding: No. 1538: 

To the extent that Respondent alleges that Exide wil in fact have t 

L, such allegation is contradicted by the facts in the 

record. Daramic t 

l. (Gilespie, Tr. 5860, in camera; CCFOF 1283-1288). t 

l. (Gillespie, Tr. 5799, in camera). 

Respondent's allegation that Exide t 

l. (CCFOF 1267­

l268). Mr. Gilespie testified that t 

l. (Gilespie, Tr. 5818, 5823, 5829, in camera).
 

t 

l. (CCFOF 1276). 

42 
l539. ~
 

. (Seibert, Tr. 5680-81, 

in camera).
 

Response to Finding: No. 1539:
 

t 

l. (Gilespie, Tr. 5860, in
 

camera; PX5076 (Seibert, Dep. at 38, in camera); CCFOF 1283-1288). t 

l. (Gilespie, Tr.
 

5822, in camera; see also Gilespie, Tr. 5803, in camera). t 

l. (Gilespie, Tr. 5799, in camera; Seibert, Tr. 5706-5707, in camera).
 

1540. t 

(Seibert, Tr. 5677-78, in camera). t 

l. (RXOl693, in camera; Seibert, Tr. 5679-80, in camera). 

t 

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

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

t 

l .
 

(Gilespie, Tr. 5849, in camera). In any event, 

(Seibert, Tr. 5672, in camera). 

43 
Response to Finding: No. 1540: 

The statement in the first sentence attributed to Mr. Gilespie is being offered for the truth 

of the matter asserted, not for the state of mind of the one testifying to the statement, and thus, is 

inadmissible hearsay and should be stricken. (Order on Post Trial Briefs, dated June 16,2009; 

see also CCRF 1519). Mr. Seibert's testimony cited by Respondent with respect to his 

discussion with Exide is hearsay and cannot be offered for the truth of the matter asserted. 

(Seibert, Tr. 5677-5678, in camera). Mr. Gilespie's testimony cited by Respondent with respect 

to his discussion with Daramic is hearsay and cannot be offered for the truth of the matter 

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

t 

L (Gilespie, Tr. 5861, in camera).
 

Contrary to Respondent's assertion, Mr. Gilespie did not t 

l. (CCFOF 1267, 1272). t 

l. 

(Gilcspie, Tr. 5792-5793, in camera). 

44 
t 

l. (Gilespie, Tr. 5860, in camera;
 

CCFOF l283-1288). t 

l. 

(Gilespie, Tr. 5799, in camera; Seibert, Tr. 5706-5707, in camera). 

1541. t 

(Siebert, Tr. 5684-85, in camera; 

Gilespie, Tr. 5840-4l, in camera; RXOl681, in camera). 

. (Gilespie, Tr. 5840,
 

in camera). 

." (RX01681, in camera). t 

. (Gilespie, Tr. 5839, in camera). Again, Gilespie's 

testimony is not credible. 

Response to Finding: No. 1541: 

t 

l. (CCFOF 1283). t 

l. (CCFOF 1286). t 

l. (CCFOF 1283, 1285-1286). t 

l. 

45 
(CCFOF 1328-1330). t 

l. (Gilespie, Tr. 5822, in camera; see also Gilespie, Tr. 5803, in camera).
 

t 

l. 

(RX0168l, in camera). 

Contrary to Respondent's spurious allegation, there is nothing inconsistent between t 

l (Gilespie, Tr. 5839, in camera 

(emphasis added)). It is simply disingenuous for Respondent to pull a few words from Mr. 

Gilespie's testimony out of context, and then have the audacity to use the redacted quote to 

attack his credibility. 

1542. t 

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

. (Gilespie, Tr. 5843; RXOl726).
 

Response to Finding: No. 1542:
 

46 
This finding is outside of the scope of the proffered facts, because it is not evidence that 

supports any of the four proffers. In fact, Mr. Seibert clearly testified that t 

l. (Seibert, Tr. 5701, in camera; see also CCFOF 

1258). 

t 

l. (Gilespie, Tr. 5822, in camera). t 

l. (Gilespie, Tr.
 

5836, in camera). t 

l that Exide's Industrial Energy segment informed 

investors as recently as November 5, 2009 that it believes that "a slow recovery is underway." 

(RXO 1726 at 006). t
 

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

l. (Gillespie, Tr. 5866-5867, in camera).
 

t
 

l. (Gilespie, Tr.
 

5821-5822,5867, in camera). t 

l. 

(Gilespie, Tr. 5805, 5822-5823, in camera). t 

47 
1341-l342). 

t 

l. (CCFOF 

1543. f 

l. (CCFOF 1276). 

Response to Finding: No. 1543: 

Respondent's unsupported allegations are entirely without basis. t 

l. (CCFOF 126l-1266). t 

l. (CCFOF 1261-l262). t 

(Gilespie, Tr. 5792, 5860, in camera; CCFOF 1262). t 

l. 

l. (CCFOF l264). t 

48 
l. (RX01676 at 001, 

in camera; CCFOF l265). Furthermore, Daramic knew precisely t 

l. (RXOl720 at Ol9, in camera). 

t 

L (Gilespie, Tr. 5832, in camera). t 

l. (Gilespie, Tr. 5832, in
 

camera). t 

l. 

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

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

t 

l. (Gillespie, Tr. 58l3, 5832, in camera; CCFOF 1267-1268). t 

49
 
l (RX01679 at 002, in camera).
 

t
 

l. (See CCRF 1604). 

l544. t 

. (RXOI679, in camera; RXOl693, in

camera). 

Response to Finding: No. 1544: 

t 

l. 

(RXOl720 at 019, in camera). 

t 

l. 

(Gilespie, Tr. 5805, in camera). t 

l. (CCFOF 1267-1270). t 

l. (Gilespie, Tr. 5859, in camera). According to Mr. 

Gilespie, t 

50 
l (Gilespie, Tr. 5859, in camera).
 

t 

l. (Seibert, Tr. 5672-5673, in camera; CCFOF 1288). 

1545. t 

." (RXOI720 at

005, in camera). 

Response to Finding: No. 1545: 

t 

l. (RXOI720 at 019, in camera). 

1546. t 

. (RX01693, in camera;
 

RX01680, in camera; RXOl685, in camera; Seibert, Tr. 568l, 5684, in camera). 

t 

. (Seibert, Tr. 5734-35, in camera). Further, the Court finds that 

Response to Finding: No. 1546: 

5l 
t 

l. 

(RXOl720 at 019, in camera). 

t 

l. (CCFOF 

1273). t 

l. (CCFOF 1273). t 

l. (CCFOF 1264, 1267-l268, 1270). 

t 

l. (CCFOF l337-1339). t 

l. (Gilespie, Tr. 5813, in camera). t 

l. 

(Gilespie, Tr. 5813, 5830-5833, in camera). 

1547. t 

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

camera). t 

. (Seibert, Tr. 568l, 5722, in camera). 

Response to Finding: No. 1547: 

52 
Mr. Seibert's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Seibert, Tr. 5681-5722, in 

camera). t 

l. 

(PX5075 (Toth, Dep. at 28, in camera (t 

l); CCFOF 1330).
 

t
 

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

l548. t 

. (Gilespie, Tr. 5807, 5843-44, in
 

camera). Gilespie's testimony here, and elsewhere, is not credible. According to Exide's 

second quarter results, Exide's sales of 
 transportation and industrial batteries are down 29% 

and 26%, respectively. (Gilespie, Tr. 5843-44; RXOl726). Moreover, Exide's free cash has 

declined 129% from last year, which Gillespie does not dispute. (Gilespie, Tr. 5844). 

(Gilespie, Tr. 5862,
 

in camera). This Court does not find Gilespie to be a credible witness. 

Response to Finding: No. 1548: 

Respondent's attempt to besmirch Mr. Gilespie's credibility by arguing that Exide is a 

financially troubled firm is simply not accurate. t 

53
 
l. (Gilespie, Tr. 5843, 5861, in camera). All ofMr. Gilespie's statements 

about Exide's financial ability are true and are corroborated by Exide's fiscal second quarter 

results which showed that that Exide's cash position actually increased by 57% in the fiscal 

second quarter from $69.5 milion to $109.2 milion, and that gross margins increased from
 

17.7% to 20.6% versus the prior year. (RXOl726 at 005-006,009). t 

l. (Gilespie, Tr. 5844, in camera; RXOI726 at 005-006,009). 

Given that Exide's cash position is actually much better than it has been in the recent 

past, Respondent is left trying to use sleight of 
 hand to attack Mr. Gilespie's credibility by citing 

to an unusual accounting term known as .free Cash Flow. However, even Respondent's citation 

to free cash flow falls flat, as Exide's second quarter results showed that Exide actually 

"generated positive free cash flow" in the quarter, while at the same time managing to fund 

capital investments and restructuing to the tune of $70.7 milion. (RXO 1726 at 004, 006). 

Finally, Respondent's last sentence is a legal conclusion unsupported by the evidence. 

D. t 

1549. f 

." (RX01704, in camera; Gilespie, Tr. 5838, in camera). t 

(Gilespie, Tr. 5838, in
 

camera). t 

l. (Toth, Tr. 5750-51,
 

in camera; RX01704, in camera). 

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

Response to Finding: No. 1549: 

54 
t 

l. (RXOl687 at
 

002, in camera). t 

l. (RX01668 at
 

002, in camera (t 

l); RX01669 at 002, in camera (t 

l). t
 

l. (Gilespie, Tr. 5810, 5825­

5826,5829, in camera; see also CCFOF 1256-1257). 

t 

l. (Gilespie, Tr. 5838, in camera). t 

l. (Gilespie, Tr. 5838, 5868, in camera). t 

l. 

t 

l. (CCFOF 1317). 

55 
The statements attributed to Mr. Ulsh are being offered for the truth of the matter 

asserted, not for the state of mind of the one testifying to the statement, and thus, are 

inadmissible hearsay and should be stricken. (Order on Post Trial Briefs, dated June 16,2009; 

see also CCRF 1519). 

Respondent's last sentence is unsupported by any evidence and is contradicted by 

testimony and documentary evidence. 

1550. Previously, Respondent provided evidence demonstrating that even in Complaint 

Counsel's SLI market in North America, t l .
 

(RFOF 927). t 

). 

(RX01668, in camera). f 

Response to Finding: No. 1550: 

The first and last sentence of this finding are outside of the scope of 
 the proffered facts as

they address issues that are unrelated to the proffered facts. t
 

l. (CCRF 

927). 

t 

l. (See CCRF 1549 above). 

f 

l. 

(CCFOF l262-1265, Gilespie, Tr. 5862, in camera). t 

56 
l. 

1551. t 

Response to Finding: No. 1551: 

Respondent's finding of fact is a legal conclusion unsupported by the evidence. 

t 

l. (Hall, Tr.
 

2748, in camera). t 

l. (See CCRF 

1549 above). 

t 

l. 

t 

57
 
l. (RX00072 at 054­

06l, in camera). t 

l 

(RX00072 at 056, in camera). In comparison, the best t L offered to Exide by Daramic for 

t 

l. (RXOl668 at 002, in camera; Seibert, Tr. 5656, in camera). t 

l. (RX00072 at 056, in camera; RX01668 at 002; Seibert, Tr. 5656, in camera). 

1552. Similarly, 

. (RXO 1687 at 002, in 

camera). t 

Response to Finding: No. 1552: 

t 

l. (Gilespie, Tr. 5829, in camera; see also CCFOF 

279,283-284,462,471, 788-789). t 

l. (Gilespie, Tr. 5823, in camera). t 

58 
l. 

t 

t 

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

camera). t 

t 

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

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

t 

l. (Gilespie, Tr. 5828, in camera). 

L (Gilespie, Tr. 5818, in
 

camera). t 

59
 
L (Gilespie, Tr. 5829-5830, in camera). t 

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

l. (CCFOF 132-1324; 1281-1282, 1315). t 

l. (Gilespie, Tr. 5869-5871, in camera; CCFOF 1315).
 

t
 

l. (CCFOF l334-1336, l341-1342). 

1553. Based on the foregoing, including specifically 

Response to Finding: No. 1553: 

Respondent's allegations are legal conclusions, unsupported by the evidence. (See CCRF 

1549-l552 above). 

E. fToth Reaches Out to Exide's CEOl
 

1554. Respondent's Chief 
 Executive Offcer, Robert Toth ("Toth"), testified at the hearing on 

November 12,2009. Toth's testimony went uncontradicted by Complaint CounseL. This Court 

finds Toth to be a credible witness and credits his testimony in this hearing. 

Response to Finding: No. 1554: 

60 
This finding states a legal conclusion. Moreover, Respondent does not state the pages of 

Mr. Toth's testimony that it claims "went uncontradicted." Despite these shortcomings, Mr. 

Toth was contradicted by Mr. Gilespie regarding Exide's wilingness to t 

. Mr. Toth testified that t 

L (Toth, Tr. 5762, in camera). However, Mr. Gilespie testified that t 

l. (CCFOF
 

1281). In October 2009, after Daramic t 

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 t 

l. (Gillespie, Tr.
 

5815-5816,5865-5866, in camera). 

In addition, Complaint Counsel's responses to Respondent's proposed findings 1589 and 

1601 also provide evidence undermines Mr. Toth's credibility. 

1555. t 

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

t
 

. (Toth, Tr. 5777, in camera).
 

Response to Finding: No. 1555: 

This finding contradicts Respondent's third proffer. According to the finding, it was 

t 

61 
l. 

In addition, this finding's suggestion that t 

lis 

contradicted by the evidence. Polypore, through its corporate finance personnel and its Daramic 

business unit, began t 

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

Tr. 5775-5777, in camera). Mr. Toth, Polypore's CEO recalled t 

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

Tr. 5775-5777, in camera). Likewise, the finding's suggestion that Respondent's decision 

t 

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

L (PX5076, Seibert Dep. at 84-85, in 

camera). 

1556. Around the same time, 

. (Toth, Tr. 5737-39,
 

5741, in camera; Seibert, Tr. 5645, in camera). 

Response to Finding: No. 1556: 

62 
This finding reflects self-serving testimony regarding contentious negotiations between 

Daramic and Exide. The validity and trstworthiness of 
 Respondent's one-sided statements in 

ongoing negotiations should be given little or no weight. The statements are solely intended to 

further Respondent's negotiation and litigation posture in its unresolved dispute with Exide. 

Moreover, t 

L (CCFOF 1074). 

t 

l. (CCFOF 1069­

1078). t 

l. (CCFOF 1317, 1322). 

a. t 

1557. t 

. (Toth, Tr. 5738-39, in camera). 

Response to Finding: No. 1557: 

This finding reflects self-serving testimonial evidence regarding contentious negotiations 

between Daramic and Exide. The validity and trustworthiness of Respondent's one-sided 

statements in ongoing negotiations should be given little or no weight. The statements are solely 

intended to further Respondent's negotiation and litigation posture in its unresolved dispute with 

Exide. 

1558. t 

(Toth, Tr. 5739, in camera). From the very beginning, t 

63 
. (Toth, Tr. 5739, in
 

camera). 

Response to Finding: No. 1558: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5739, in camera). 

Mr. Toth lied to Mr. Gilespie when he told him that the t 

l. In
 

fact, Polypore intended on t l. 

(RX01692 at 002, in camera). Moreover, t 

l. (CCFOF 1292). Respondent
 

was considering t 

l. (CCFOF 1293-1295). Daramic had only t 

l. (CCFOF 1298). The testimonial and documentary eviden~e proves that Respondent 

was going to t 

l. (CCFOF 1299-l302,
 

1304-1306). In fact, even under the scenario in which t 

l- (RX01692 at 002, in camera; see also CCFOF 1306). 

In addition, this finding's contention that Daramic was t 

l. (CCRF 421-428).
 

64 
1559. At that time, 

. (Toth, Tr. 5739-40, in 

camera). 

Response to Finding: No. 1559: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5739-5740, in 

camera). 

This finding contradicts Respondent's third proffer that l 

l. As the finding makes clear, t . 

l. (See CCRF 1558). The finding's self-serving testimonial 

evidence that t 

L is irrelevant to the proffers. The validity and trustworthiness of 

Respondent's one-sided statements in ongoing negotiations should be given little or no weight. 

The statements are solely intended to further Respondent's negotiation and litigation posture in 

its unresolved dispute with Exide. The decision to t 

l. (CCFOF l297-1298). 

1560. t 

. (Toth, Tr. 5739-40, in
 

camera). 

Response to Finding: No. 1560: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5739-40, in 

camera). 

65 
This finding provides the self-serving testimonial evidence ofMr. Toth regarding 

contentious negotiations between Daramic and Exide. The validity and trustworthiness ofMr. 

Toth's one-sided statements in ongoing negotiations should be given little or no weight. The 

statements are solely intended to further Respondent's negotiation and litigation posture in its 

unresolved dispute with Exide. 

In addition, the finding's statement that t 

L are being offered for the trth of the matter asserted, not for
 

the state of 
 mind ofMr. Toth, and thus, are inadmissible hearsay and should be stricken. (Order 

on Post Trial Briefs, dated June l6, 2009; see also CCRF 1566). Notwithstanding Respondent's 

attempt to use Mr. Gilespie's statement in this finding for the truth of the matter asserted after 

agreeing that it was only being "offered for the state of mind of 
 Mr. Toth," Respondent misstates 

Mr. Toth's testimony. (Toth, Tr. 5740, in camera). Mr. Toth t 

(Toth, Tr. 5740, in camera). Mr. Gilespie is responsible for Exide's separator purchases, not 

Mr. Ulsh. (Gilespie Tr. 5788-5789, in camera).
 

1561. t 

. (RX01685, in camera). 

Response to Finding: No. 1561: 

This finding is outside the scope of the proffered facts because it is not evidence that 

supports any of 
 the four proffers. Specifically, it does not support the allegation that Exide 

decided to move t L of its PE separator purchases for t L to another
 

supplier. Nor does it support the allegation that it appears unlikely that Daramic t 

66 

l 
L Respondent anticipates maintaining a supply position with Exide with or without a 

contract. (Toth, Tr. 5769, in camera; Seibert, Tr. 5724, in camera). Mr. Toth told investors as 

much. (Toth, Tr. 5769, in camera ("sounds like something I would have said."); see also CCFOF 

1309). Moreover, contrary to this finding's assertion, the evidence proves that Exide t 

l. (CCFOF 1281). 

1562. t 

, (RXOI694, in camera), t 

l .
 

(RX01694 at 006, in camera). 

Response to Finding: No. 1562: 

This finding is outside the scope of the proffered facts because it is not evidence that 

supports any of 
 the four proffers. Specifically, it does not support the allegation that Daramic 

decided to t L because of Exide' s actions. In fact,
 

the document Respondent cites to for the proposition that t 

L provides evidence contrary to the third proffer. t 

l. (RX01694 at
 

003, in camera (which, but for the handwritten notes, is identical to RX01692 at 002, in camera); 

CCFOF 1304-1306). 

1563. t 

. (Toth, Tr. 5741, in camera). Finally, 

67 
l. (Toth, Tr. 5742, in 

camera). 

Response to Finding: No. 1563: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5741, 5742, in 

camera). 

The finding provides self-serving testimonial evidence regarding contentious negotiations 

between Daramic and Exide. The validity and trstworthiness of 
 Respondent's one-sided 

statements in ongoing negotiations should be given little or no weight. The statements are solely 

intended to further Respondent's negotiation and litigation posture in its unresolved dispute with 

Exide. 

Moreover, Respondent's statement that t 

L is not supported by the evidence. There is simply no evidence to support Respondent's 

suggestion in this proposed finding and in RFF 1560 that t 

l. (Toth, Tr. 5740-5742, in camera; see also CCRF 1560). 

1564. t 

(Toth, Tr. 5742, 5744 in camera). t 

Response to Finding: No. 1564:
 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is
 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5742, 5744, in 

camera). 

68 
This finding provides only self-serving testimonial evidence regarding contentious 

negotiations between Daramic and Exide. The validity and trstworthiness of Respondent's one-


sided statements in ongoing negotiations should be given little or no weight. The statements are 

solely intended to further Respondent's negotiation and litigation posture in its unresolved 

dispute with Exide. 

Moreover, Respondent's conclusion that t 

l. First, there is simply no evidence regarding the 

reason for the alleged t 

i.5 If, in fact, there was t 

L could have been for a myriad of reasons, none of which have anything to do with 

t l. Perhaps there was a family 

emergency. The record is silent. If 
 this fact was central to Respondent's proffers, Respondent 

should have deposed Mr. Ulsh, or called Mr. Ulsh to testify. But rather than learn the truth, 

Respondent prefers to make wild, unsupported conclusions. Notwithstanding Respondent's 

spurious allegations, t 

l. (Toth, Tr. 5744).
 

Second, the evidence establishes that t 

l. (See e.g., Gilespie, Tr. 5822-5823 t 

5 Mr. T oth testi fied that ( l. (Toth, Tr. 5742, in camera). However, Respondent's finding, in an attempt to demean ( L 

69 
l;
 

CCFOF 1317 (Daramic has repeatedly refused to t
 

l); CCFOF 

1059 t 

l; CCFOF 1064 t 

L (PXI050, in camera; Bregman Tr. 2901-2902, in 

camera)); CCFOF 1067 (Exide believes that negotiations with Daramic are t 

l. (Gilespie, Tr. 3002, in camera). In fact, while there is no evidence that t 

l. (See generally, CCFOF 

1079-1088; see also (PX0265 at 004, in camera; PX0194 at 022, in camera t( 

l). 

l565. At that time,
 

. (Toth, Tr. 5742-43, in camera; RXOl712 at 001, in camera). 

Response to Finding: No. 1565: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5742-5743, in 

camera). 

70 
This finding provides only self-serving testimonial and documentary evidence regarding 

contentious negotiations between Daramic and Exide. The validity and trustworthiness of 

Respondent's one-sided statements in ongoing negotiations should be given little or no weight. 

The statements are solely intended to further Respondent's negotiation and litigation posture in 

its unresolved dispute with Exide. 

In addition, Respondent's citation to October 23,2009 redacted email as evidence to 

support what Mr. Toth said 
 to t L
 

should be viewed with a large degree of skepticism. The October 23, 2009 redacted email from 

Mr. Toth to t 

l. 

(RX01681, in camera). It is obvious that RX01712, Mr. Toth's self-serving redacted email that 

contemplates a t 

l. 

1566. t 

(Toth, Tr. 5742-43, in camera). 

l. 

(Toth, Tr. 5744, in camera). 

Response to Finding: No. 1566: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5742-5743,5744, in 

camera). 

71 
This finding provides only self-serving testimonial evidence regarding contentious 

negotiations between Daramic and Exide. The validity and trustworthiness of Respondent's one-


sided statements in ongoing negotiations should be given little or no weight. The statements are 

solely intended to further Respondent's negotiation and litigation posture in its unresolved 

dispute with Exide. 

In addition, the finding's statement that Mr. Ulsh and t 

L are being offered for the trth of the matter asserted, not for the state of mind 

ofMr. Toth, and thus, are inadmissible hearsay and should be stricken. (Order on Post Trial 

Briefs, dated June 16, 2009; see CCRF 1519). 

Even if one were to assume the alleged hearsay statements were true, Respondent 

obviously ignored the admonition, and t 

l. (CCFOF 1287, l338, 1335-1336). 

1567. t 

. (Toth, Tr. 5743-44, in camera). 

Response to Finding: No. 1567: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5743-5744, in 

camera). 

This finding contradicts Respondent's third proffer that t 

l. As the finding makes clear, Daramic had t 

72 
l. (See CCRF l558). The finding's self-serving testimonial 

evidence that t 

L is evidence that the 

t 

l. (CCFOF 1297-1298). Likewise, the validity and trustworthiness of 

Respondent's one-sided statement that t 

L should be given little or no weight since it related to ongoing 

negotiations. The statements are solely intended to further Respondent's negotiation and 

litigation posture in its unesolved dispute with Exide. 

1568. t 

J. (RX01704, in camera).
 

Response to Finding: No. 1568:
 

The finding's statement of what Mr. Ulsh agreed to is being offered for the truth of the 

matter asserted, not for the state of mind of Mr. Toth, and thus, are inadmissible hearsay and 

should be stricken. (Order on Post Trial Briefs, dated June 16,2009; CCRF 1566). 

b. 1 1 

1569. ~
 

. (Toth, Tr. 5745, in camera; RX01703, in camera).
 

Response to Finding: No. 1569:
 

This finding contradicts Respondent's third proffer that t
 

L regarding its separator purchases from Daramic. The three 

t 

73 
l 

(RX01703, in camera). According to the finding, Mr. Toth met t 

l. (RX01703, in camera).
 

f 

l. (CCFOF 1292). Respondent was considering t 

l. (CCFOF 

1293-1295). The testimonial and documentary evidence proves that Respondent was going to 

t 

l. (CCFOF 1299-1302; 1304-1306). In fact, even 

under the scenario in which t 

l. (CCFOF 1306). 

Moreover, the agenda states that f l. (RX01703, in camera). Mr. 

Toth conceded that on the stand. (Toth, Tr. 5777-5778, in camera). Yet, Respondent has told 

this Court t 

l. (RFOF 421; RFOF 425 - RFOF 426).
 

Obviously, Respondent's earlier findings are incorrect. Daramic's contemplation of t 

L is strong evidence that, but for the merger, Microporous 

would have been viable and would it would have been an aggressive competitor taking share 

from Daramic.
 

l570. t 

74
 
l. (Toth, Tr. 5745-46, in camera).
 

Response to Finding: No. 1570: 

See Response 
 to Finding No. 1569, above. 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of the matter asserted. (Toth, Tr. 5745-5746, in 

camera). 

1571. t
 

. (Toth, Tr. 5745-46, in camera). As Toth explained:
 

Response to Finding: No. 1571:
 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5745-5746, in 

camera). 

This finding's statement that Daramic desired to retain at 

l. t
 

l. (CCFOF 1312-1313, 1315-l318, 1320, 1322). t 

l. (CCFOF 1317).
 

In fact, Mr. Toth's testimony was that t
 

L (Toth, Tr. 5746, in camera. Emphasis added). 

But, as noted above, Daramic did not just seek a t 

l. Moreover, f
 

75 
l 

l. (RXOl867 at 002, in camera, see also CCFOF 1279-1280). Thus, for Mr. 

Toth to testify that he was wiling to accept at 

is disingenuous because t 

l. (CCFOF 1324). 

1572. t 

l .
 

(Toth, Tr. 5746-47, in camera). 

Response to Finding: No. 1572: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5746-5747, in 

camera). 

This finding is outside the scope of the proffered facts because it is not evidence that 

supports any ofthe four proffers. Specifically, it does not support the allegation that Exide 

decided to move t L of its PE separator purchases for t L to another
 

supplier, or that Exide wil in fact have f L worth of separators in storage. Nor, does it
 

support the allegation that it appears unlikely that Daramic wil retain any small amount of 

business from Exide in t l. It also does not support the allegation that Daramic decided to 

t Ex ide's actions. L because of 


To the extent this finding is intended to suggest that the Daramic business is t 

l. (CCFOF 6; PX2160 at 83). Moreover, 

Daramic's financial statements provide strong evidence that the business is profitable. (CCRF 

278). 

1573. t 

. (Toth, Tr. 5746-47, in camera). 

76 
Response to Finding: No. 1573: 

This finding is outside the scope of 
 the proffered facts because it is not evidence that 

supports any of 
 the four proffers. Specifically, it does not support the allegation that Exide 

decided to move t L of its PE separator purchases for t L to another
 

supplier, or that Exide wil in fact have t L worth of separators in storage. Nor, does it
 

support the allegation that it appears unlikely that Daramic wil retain any small amount of 

business from Exide in t l. It also does not support the allegation that Daramic decided to
 

Ex ide's actions. t L because of 


This finding provides only self-serving testimonial evidence regarding contentious 

negotiations between Daramic and Exide. The validity and trustworthiness of Respondent's one-


sided statements in ongoing negotiations should be given little or no weight. The statements are 

solely intended to further Respondent's negotiation and litigation posture in its unesolved 

dispute with Exide. 

1574. t 

. (Toth, Tr. 5746-47, in camera). 

Response to Finding: No. 1574: 

See Response to Finding No. 1571. The finding's statement that Daramic sought to retain 

t 

l. 

(CCFOF 13l2-1313, 1315-1318, 1320, 1322). Daramic has repeatedly refused to t 

l. (CCFOF 1317). 

77 
Moreover, ifDaramic sought to retain 

l. (CCFOF 1281, 1315). t 

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 t 

l. (Gilespie, Tr. 5815-5816, in camera).
 

1575. Consequently, t 

. (Toth, Tr. 5746, in camera). As Toth

elaborated at the November 12,2009 hearing, " 

." (Toth, Tr. 5746, in camera)(emphasis added). 

Response to Finding: No. 1575: 

The finding's statement that t 

L is self-serving testimonial 

evidence regarding contentious negotiations between Daramic and Exide and is not supported by 

the evidence. First, Daramic's t 

l. Exide's t
 

l. (RX01665 at 004, in camera). But, 

l. (RX01669 at 002, in camera). In contrast, 

t 

78 

'" ...._'" - ._----.. --- -, _. 'd, 
l. 

(RX00072 at 56, in camera). t 

i.6 (RX00072 at 

056, in camera; RX01668 at 002; Seibert, Tr. 5656, in camera). 

Second, Daramic was never wiling to t 

l. (RX01669 at 002, in camera (Exide proposed t 

l); Gilespie, Tr. 5808-5810, in camera; see 

also CCFOF 1321). Third, Daramic's t 

l. (Gilespie, Tr. 5807-5808, in
 

camera; see also CCFOF 1326-1327). Fourth, all of 
 Daramic's proposed t 

l. (CCFOF 13l6-l322).
 

In addition to the above, Daramic offered other t
 

6 All three potential SLI suppliers in North America (Daramic, Entek and Microporous) were actively competing for 

. (Gilchrist, Tr.
 

423,466-467, in camera). During this same time period, i l. 

(Roe, Tr. 1685-1686, in camera; Hall, Tr. 2884, in camera). i 

l. (RXOOOn, in camera). 

79
 

i 
l. (RX01665 at 002, in 

camera; RX1250 at 001, in camera; RX01668 at 002, in camera). t 

l. (RXOl668 at 002, in camera; RXOl687, in 

camera). Second, Exide sought to have t 

l. (RX01665 at 002, in camera). Daramic refused to agree to this t 

l. (RX01668 at 002, in 

camera). Third, Exide sought a t 

l. (RXO 1668 at 002, in
 

camera). 

Moreover, t l. 

t 

l. (RX01714 at 003, in camera; 

RXOI720 at 039, in camera). Similarly, Daramic never agreed to Exide's request for 

t 

l. (RX1714,
 

in camera). In fact, contrary to Mr. Toth's testimony that Daramic offered Exide t 

l. (RX1714, in camera).
 

80 
In addition, most of the contractual terms that Daramic has offered to Exide are t 

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

l. (RX01668 at 002, in camera; RXOl720, in camera; 

RX01714 at 003-004, in camera). The North American Supply Agreement is the same t 

l. (CCFOF 1270, 1326-1327).
 

Regarding Mr. Toth's testimony relating to his desire to t
 

l. (See CCRF 1571). 

1576. t 

(Toth, Tr. 5772, in camera). 

. (Toth, Tr. 5747, in camera).
 

Response to Finding: No. 1576: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5747, 5772, in 

camera). 

This finding contradicts Respondent's third proffer that Daramic f 

l. (See
 

also CCRF 1555, l558-1559, 1567, l569). The t 

L (See
 

also RX01703, in camera (handwritten meeting agenda)). The finding does not include a 

81 
scenario whereby t 

l. (CCFOF 1292). The testimonial and 

documentary evidence proves that Respondent was going to t 

l. (CCFOF 1299-1302, 1304-1306). In fact, even under the scenario in which 

t 

l. (CCFOF 

1306). 

In addition, the finding states that one of the t 

l. Yet, Respondent has told this Court that as a standalone entity, 

Microporous would t 

l. (RFOF 421, 425-426). Today, Respondent concedes that t 

l. (Toth, Tr. 5777-5778, in camera; RX01703, in camera). Obviously, 

Respondent's earlier findings are incorrect. t 

L is strong evidence that, but for the merger, Microporous would have 

been viable and it would have been an aggressive competitor taking share from Daramic. 

1577. First, t 

(Toth, Tr. 5748, in camera). 

Response to Finding: No. 1577: 

Complaint Counsel has no specific response. 

82
 
1578. t 

(RX01706, in camera; Toth, Tr. 5747-49, in camera). 

Response to Finding: No. 1578: 

Complaint Counsel has no specific response. 

1579. f 

. (Toth, Tr. 5747, in camera). 

Response to Finding: No. 1579: 

Complaint Counsel has no specific response. 

1580. t 

. (Toth, Tr. 5780, in camera). 

Response to Finding: No. 1580: 

Complaint Counsel 
 notes that this finding's contention that switching production from 

t L is 

inconsistent with Respondent's previous findings that t 

l. (See RFOF 180 

and CCRF 180). 

1581. t 

. (Toth, Tr.
 

5747-48, in camera). 

Response to Finding: No. 1581: 

This finding contradicts Respondent's third proffer that t 

l. (See
 

also CCRF l555, 1558-1559, 1567, 1569). Even with t 

83 
l. (CCFOF l298). The testimonial and documentary evidence proves that 

Respondent was going to t 

l. (CCFOF 1299­

l302, 1304-1306). In fact, even under the scenario in which t 

l. (CCFOF 1306). 

1582. Finally, t 

l. 

(Toth, Tr. 5748-49, in camera). 

Response to Finding: No. 1582: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5748-5749, in 

camera). 

This finding contradicts Respondent's third proffer that t 

l. As the finding makes clear, Daramic had t 

l. (See also CCRF 1555, 1558-1559, 1567, 1569, 1581). The 

finding's self-serving testimonial evidence that t 

L is irrelevant to the proffers. The validity and 

trustworthiness of 
 Respondent's one-sided statements in ongoing negotiations should be given 

little or no weight. The statements are solely intended to further Respondent's negotiation and 

litigation posture in its unresolved dispute with Exide. The decision to t 

84
 
l. (CCFOF 

1297 -1298).
 

1583. t 

. (Toth, Tr. 5749, in camera). Clearly, t 

(PX5075 at 008, in camera). 

Response to Finding: No. 1583: 

See Response to Finding No. 1582, above. 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of the matter asserted. (Toth, Tr. 5749, in camera; 

PX5075 (Toth, Dep. at 39)). 

1584. t 

. (Toth, Tr.


5749-50, in camera). 

Response to Finding: No. 1584: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5749-5750, in 

camera). 

This finding's contention that Daramic t 

L is contradicted by record 

evidence. First, Mr. Seibert admitted f 

l. ((PX5076 (Seibert, Dep. at 81), in camera). Yet, there is no evidence 

that the t 

l. Second, t
 

l. (Gilespie, Tr. 5815, in camera).
 

85 
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 t 

l. (Gilespie, Tr. 5815-5816, in camera). This should have allowed
 

Daramic to t 

l. (See also CCRF l555, 1558-1559, 1567, 1569, 1581). The 

testimonial and documentary evidence proves that Respondent was going to t 

l. (CCFOF 1299-1302, 1304-1306). In fact, even under the scenario 

in which t 

l. 

(CCFOF 1306). 

1585. t 

(Toth, Tr. 5749-50, in camera). 

. (Toth, Tr. 5749-50, in


camera). t 

Response to Finding: No. 1585: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth ofthe matter asserted. (Toth, Tr. 5749-5750, in 

camera). 

This finding provides only self-serving testimonial evidence regarding contentious 

negotiations between Daramic and Exide. The validity and trustworthiness of Respondent's one-


sided statements in ongoing negotiations should be given little or no weight. The statements are 

86
 
solely intended to further Respondent's negotiation and litigation posture in its unresolved 

dispute with Exide. 

In addition, the finding's allegation of what Mr. Ulsh said is being offered for the trth of
 

the matter asserted, not for the state of 
 mind ofMr. Toth, and thus, is inadmissible hearsay and 

should be stricken. (Order on Post Trial Briefs, dated June 16,2009; See CCRF 1566). 

With regard to the finding's alleged concession that t 

l. (CCFOF 1312­

13l3, 1315-13l8, 1320, 1322). Furthermore, it fails to acknowledge that Daramic has 

t 

l. (CCFOF 1317). In addition, it fails to state that Daramic's 

t 

l. RX01714 at 002-003, 

in camera). 

As to the finding's statement that Exide has economic power and is in control of the 

negotiations and the relationship, this is a legal conclusion. Moreover, it shows no such thing 

because t 

l. In fact, if Exide
 

did have such power in its negotiations with Daramic, then Exide would have been able to t 

l. (Gilespie, Tr.
 

5864, in camera; RX01669 at 002, in camera (t l); RX01687 at 

87
 
002, in camera). Finally, if 
 Exide indeed had economic power, Exide would not be t 

l. (See CCFOF 

1338, l344). 

1586. Although,
 

. (Toth, Tr.
 

5750-5l, in camera). 

Response to Finding: No. 1586: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5750-5751, in 

camera). 

This finding is outside the scope of 
 the proffered facts because it is not evidence that 

supports any of the four proffers. This finding provides only self-serving testimonial evidence 

regarding contentious negotiations between Daramic and Exide. The validity and 

trustworthiness of 
 Respondent's one-sided statements in ongoing negotiations should be given 

little or no weight. The statements are solely intended to fuher Respondent's negotiation and 

litigation posture in its unresolved dispute with Exide. 

In addition, the finding's allegations of 
 what Mr. Ulsh said are being offered for the truth 

of the matter asserted, not for the state of mind ofMr. Toth, and thus, are inadmissible hearsay 

and should be stricken. (Order on Post Trial Briefs, dated June 16, 2009; See CCRF 1566). 

Notwithstanding the inadmissible and inappropriate use of hearsay in this finding regarding Mr. 

Ulsh's statement that t 

l. (CCFOF 1068-1079, 1312, 13l7). 

88 
t 

l. (CCFOF 1316-1322). t 

L (Gilespie, Tr.
 

5822). Such behavior is direct evidence of seller power. 

1587. t 

. (Toth, Tr. 5751-52, 5755, in camera). t 

J. 

Response to Finding: No. 1587:
 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is
 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5751-5752,5755, in 

camera). 

This finding's statement that Daramic was t 

l. The
 

current North American Supply Agreement is the same t 

l. 

(CCFOF 1270, 1326-1327). Moreover, t 

89
 
l. (Compare RX01669 at 002, in camera, with RX00072 at 056, in camera; see also 

CCRF 1575). With regard to the other alleged t L the evidence contradicts 

Respondent's assertion. (See CCRF l575). t 

l. 

(RX01668 at 002, in camera; RXOl720, in camera; RX017l4 at 003-004, in camera). Similarly, 

Daramic never agreed to Exide' s request for t 

l. (RX01714, in camera). In fact, contrary to Mr. Toth's 

testimony that Daramic offered Exide t 

l. 

(RXOI714, in camera). 

With regard to the last statement in this finding that the alleged facts show t 

L this is a legal conclusion. In reality this finding provides 

only self-serving testimonial evidence regarding contentious negotiations between Daramic and 

Exide. The validity and trustworthiness of 
 Respondent's one-sided statements in ongoing 

negotiations should be given little or no weight. The statements are solely intended to further 

Respondent's negotiation and litigation posture in its unresolved dispute with Exide. The 

documentary evidence, cited above, dispels Respóndent's alleged facts and conclusion. 

1588. Moreover,
 

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

Response to Finding: No. 1588: 

90 
Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5752, in camera). 

The finding's allegation that Toth was offering t 

L (Gilespie, Tr. 5795, in camera). 

Exide did this in an t l. (CCFOF 1267­

1272). Exide t 

l. 

(CCFOF 1273-1274). 

Daramic seemed to indicate that the t l. In September 2009, 

Daramic wrote Exide and told it t 

L (RX01685 at 001, in camera; CCFOF 1337). However, 

whatever t 

were subsequently thrown out the door. In its October 

20th letter to Exide, t 

l 

(RX01693 at OOl, in camera). Daramic informed Exide that the t 

l. (RX01693 at 001, in camera). Mr. Gilespie 

testified that having been in procurement for close to twenty years, the clear understanding of a 

t 

91 
l. (Gilespie, Tr. 5805, in camera). However, Daramic's actions indicate that t 

l. 

(Gilespie, Tr. 5805). Finally, any so-called t 

l. (CCFOF l343; see also PX0223 at 004, in 

camera t( 

1589. t 

. (Toth, Tr. 5753-54, in camera). 

Response to Finding: No. 1589: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5753-5754, in 

camera). 

This finding, which states that Mr. Toth told Mr. Ulsh that t 

l. The problem with this suggestion is that Daramic 

had already t 

l. (RXOl694 at 002-003, in camera t 

L see also 

92
 

l 
CCFOF 1306). Thus, Mr. Toth knew that at the time he and Mr. Ulsh met that Daramic was 

going to t 

l. (CCFOF l299-1302, 1304-1306). Mr. 

Toth is not a credible witness because he intentionally misled Mr. Ulsh from Exide. 

1590. t 

. (Toth, Tr. 5755-56, in camera). 

. (Toth, Tr. 5756, 5758, in camera). t 

l. (RX01712 at 002, in camera). 

Response to Finding: No. 1590: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5755-5756, 5758 in 

camera). 

This finding, which states that Mr. Toth t 

L is contrary to the record evidence. t 

l. (RX01687 at 002, in camera; Gilespie, Tr. 5812-5813, in camera). t 

l. (Gilespie, Tr. 5864, in camera; RX01669 at 002, in camera (t 

l); RX01687 at 002, in camera). Moreover, after the October 1,2009 

meeting between Mr. Toth and Mr. Ulsh, Daramic f 

l. 

(Gilespie, Tr. 5815, in camera; CCFOF 1281). 

93
 
With regard to the finding's language that Mr. Toth stated t L that statement
 

was made in a redacted email over three weeks after Mr. Toth and Mr. Ulsh met. (RX01712 at 

002, in camera). Moreover, the t L statement was made after t
 

l. (CCFOF 1280-1282). After 

t 

L is disingenuous, self-serving, and possibly 

manufactured evidence regarding contentious negotiations between Daramic and Exide. The 

validity and trustworthiness of 
 Respondent's one-sided statement in ongoing negotiations should 

be given little or no weight. The statement is solely intended to further Respondent's negotiation 

and litigation posture in its unresolved dispute with Exide. 

1591. Thereafter, t 

. (Toth, Tr. 5756-59, in camera). 

Response to Finding: No. 1591: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5756-5759, in 

camera). 

This finding's contention that there was a t L is belied by the fact 

that t l. (See CCRF 1590, above). 

Moreover, Respondent admits that t 

L (RFOF 1595). Thus, the t 

94
 
l.
 

The finding's contention that Mr. Ulsh t
 

L is being offered for the truth of the matter asserted, 

not for the state of mind of 
 Mr. Toth, and thus, is inadmissible hearsay and should be stricken. 

(Order on Post Trial Briefs, dated June 16,2009; CCRF 1566). The suggestion in this and other 

of Respondent's findings that reference Mr. Ulsh is that for some reason Mr. Ulsh t

l. However, Respondent does not provide any evidence regarding the reason 

why, or any evidence that Mr. Ulsh t l. Rather than depose Mr. Ulsh or call
 

him as a witness to testify about the negotiations, Respondent attempts to inappropriately 

discredit Mr. Ulsh and, as Exide's CEO, by association Exide, through innuendo, supposition, 

and hearsay. 

1592. t 

. (Toth, Tr. 5756, 5758-59, in camera). 

Response to Finding: No. 1592: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5756, 5758-5759, in 

camera). 

This finding's contention that Toth believed a t 

L is contrary to the evidence. First, 

Respondent concedes that Toth's meeting with Ulsh concluded t 

l. (RFOF 1595). Second, the t 

l. Exide had made a t l. Exide's t
 

95 
l. (RX01665 at 004, in camera). But, t 

l. (RX01669 at 002, in camera). Thus, the 

evidence contradicts the finding as it relates to SLI. 

With regard to non-SLI separators, t 

l. Daramic was never willing to t 

ide proposed 

t 

l); Gilespie, Tr. 5808-5810, in 

camera; see also CCFOF 1321). Likewise, Exide sought a t 

l. (RX01669 at 002, in camera (Ex 


l. 

(RX01668 at 002, in camera). 

1593. t 

. (Toth, Tr. 5760-6l, 5780, in

camera). 

Response to Finding: No. 1593: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5760-5761,5780, in 

camera). 

This finding's citation does not support the proposition. The finding is mostly argument 

with only one cite at the end. Moreover, this finding contradicts Respondent's previous findings 

96
 
that t 

L (RFOF 1590) and there was a t 

l (RFOF l591). Had there been such t 

l. In fact, had Mr. Toth actually t 

l. (CCFOF 1316-1322). But to this day, Daramic has never t 

l. 

(CCFOF 1312-1313, 1315-1318, l320, 1322). Daramic has t 

l. (CCFOF 1317). 

1594. t 

(Toth, Tr. 5760-61, in camera; Gilespie, Tr. 5838-39, 5867-68, in camera). 

t 

Response to Finding: No. 1594: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5760-5761, in 

camera). 

This finding contradicts Respondent's previous findings that t 

L (RFOF 1590) and there 

was a t 

L (RFOF 1591). With regard to Respondent's statement that t 

97
 
l. 

(RXOl687 at 002, in camera; Gilespie, Tr. 5812-58l3, in camera). Daramic has not t 

l. 

(Gilespie, Tr. 5864, in camera; RX01669 at 002, in camera (t l);
 

RX01687 at 002, in camera). Moreover, after the October l, 2009 meeting between Mr. Toth 

and Mr. Ulsh, Daramic t 

l. (Gilespie, Tr. 5815, in camera;
 

CCFOF l281). 

With regard to Mr. Ulsh's statement, it is being offered for the truth of the matter 

asserted, not for the state of 
 mind ofMr. Toth, and thus, is inadmissible hearsay and should be 

stricken. (Order on Post Trial Briefs, dated June 16,2009; CCRF 1566). In addition, the 

finding's contention that 

L is not supported by the evidence cited. Moreover, it is wrong. Mr. Gilespie never 

testified that it had t L and there is no evidence to
 

support such a proposition. In fact, Mr. Gilespie specifically testified that Exide had t 

l. (Gilespie, Tr. 5868, in camera). Finally, the finding's contention
 

that Exide' s t L is 

contrary to the evidence. t 

l. 

(RX01687 at 002, in camera; See also CCFOF 1279 - 1280). Daramic was unwiling to accept 

Exide's proposal. (CCRF 1594). However, with respect to non-SLI separators, Exide's t 

98
 
l. (RX01687 at 002). 

1595. ~
 

(Toth, Tr. 5760-61, in camera; PX5075 at 007, in camera). 

Response to Finding: No. 1595: 

Complaint Counsel agrees that the October 1, 2009 meeting t l. 

However, within one week of the October l, 2009 meeting, Exide had t 

l. (RXO 1687 at 002, in camera;
 

See also CCFOF 1279 - 1280). 

F. 1 1 

1596. t
 

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

(RX01714 at 002, 

in camera). 

(RX01714, in camera). 

Response to Finding: No. 1596: 

t 

l. The validity and trustworthiness of
 

Respondent's one-sided statements in ongoing negotiations should be given little or no weight. 

The statements are solely intended to further Respondent's negotiation and litigation posture in 

its unresolved dispute with Exide. Respondent's unwillngness to either depose Mr. Ulsh, or call 

99
 
Mr. Ulsh as a witness in the November ith hearing to corroborate Mr. Toth's version of the 

October 1 st is tellng. 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Mr. Ulsh is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5761-5762, in 

camera). 

t 

L (Toth, Tr. 5749-5750, in camera). t 

l. (Toth, Tr. 5759-5760, in camera). t 

l. (Toth, Tr. 5761, in camera).
 

t 

l. (RFOF 1595). t
 

l. 

(RX01714 at 002-003, in camera). t 

100 
l. (CCFOF 1317). 

t 

l. (RX01668 at 002, in camera; 

RXOl720, in camera; RX01714 at 003-004, in camera). 

t 

l. (RX01714, in camera).
 

1597. t 

(RX01687 at 002, in camera; Toth, Tr. 5761-62, in camera). 

Response to Finding: No. 1597: 

Mr. Toth's testimony cited by Respondent with respect to his discussion with Mr. Ulsh is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5761-5762, in 

camera). 

101 
t 

l. (RXO 1687 at 002, in 

camera). t 

. (RX01714 at 002, in 

camera H 

l)). t 

l. 

(Gilespie, Tr. 5812-5813, in camera). 

t 

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

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

1598. t 

. (RXO 1687 at 002, in camera; Seibert, Tr.

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

. (Seibert,
 

Tr. 5687, in camera; RXOl687, in camera). t 

102
 
J. (RX01687 at 003, in camera; Seibert, Tr. 5686-87, in camera). t l . 

(Seibert, Tr. 5690, in camera). 

(RX01712, in camera). 

Response to Finding: No. 1598: 

Respondent's references to 

L is self-serving 

testimonial evidence regarding contentious negotiations between Daramic and Exide. The 

validity and trustworthiness of 
 Respondent's one-sided statements in ongoing negotiations 

should be given little or no weight. The statements are solely intended to further Respondent's 

negotiation and litigation posture in its unresolved dispute with Exide. 

Mr. Seibert's testimony cited by Respondent with respect to his discussions with Exide is 

hearsay and cannot be offered for the truth ofthe matter asserted. (Seibert, Tr. 5686-5687, in 

camera). Mr. Gilespie's testimony cited by Respondent with respect to what was said on July 

20 is hearsay and cannot be offered for the truth ofthe matter asserted. (Gillespie, Tr. 5852­

5853, in camera). 

t 

l. 

(RX01687 at 002, in camera). 

l. 

(Gilespie, Tr. 5812-5813, in camera).
 

t 

103 
l. (Gilespie, Tr. 5865-5866, in camera). t
 

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

t 

l. (RX01668 at 002, in camera; RXOl720, in camera). 

t 

L (RX01687 at 009, in 

camera). t 

l. 

1599. t 

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

RX01693, in camera; RX01712, in camera; Seibert, Tr. 569l, in camera; Gilespie, Tr. 5854­

55, in camera). 

Response to Finding: No. 1599: 

104
 
Respondent's description of the t L is nothing more than selfserving testimonial evidence regarding contentious negotiations between Daramic and Exide. 

The validity and trustworthiness of 
 Respondent's one-sided statements in ongoing negotiations 

should be given little or no weight. The statements are solely intended to further Respondent's 

negotiation and litigation posture in its unresolved dispute with Exide. 

Mr. Seibert's testimony cited by Respondent with respect to his discussions with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Seibert, Tr. 5690-5691, in 

camera). Mr. Toth's testimony cited by Respondent with respect to his discussions with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5762-5763, in 

camera). Mr. Gilespie's testimony cited by Respondent with respect to what was said in one of 

the last conversations with Daramic is hearsay and cannot be offered for the trth of the matter 

asserted. (Gilespie, Tr. 5852-5853, in camera). 

t 

l. (CCFOF 1324).
 

t
 

l. (Gillespie, Tr. 5865-5866, in camera). t 

105
 
L (Gilespie, Tr. 5865-5866, in camera).
 

t 

l. (Gilespie, Tr. 5863, in camera). t 

L (Gilespie, Tr. 5863, in camera). t 

L (Gilespie, Tr. 5817-5818, in camera). t 

l. (CCFOF 1334-1336). 

1600. t 

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

t 

. (RX01712, in camera). 

Response to Finding: No. 1600: 

t 

106 
l. (RX01681,
 

in camera). t 

l. 

Mr. Toth's testimony cited by Respondent with respect to his discussions with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5762-5763, in 

camera). 

t 

l. (RX01687 at 002, in camera). 

l. (Gilespie, Tr. 5812-5813, in camera).
 

t 

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

107
 
L (Gilespie, Tr. 5865-5866, in camera).
 

t 

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

1601. t 

. (RX01681, in camera; Toth, Tr. 5763­ 64, in camera). t 

Response to Finding: No. 1601: 

t 

l. (Toth, Tr. 5763-5764, in camera; RX01681, in 

camera). t 

l. (RX01681, in camera; RX01712, in camera). Mr.
 

Toth's testimony, here, and elsewhere, is not credible. 

t 

l08 
l. (RXOl665 at 002­

003, in camera). t 

l. (RX01687, in camera).
 

Moreover, during the course of negotiations, Exide f 

l. (RX01665 at 002, in 

camera; RX1250 at 001, in camera; RX01668 at 002, in camera). Daramic refused to provide 

Exide with f 

l. (RX01668 at 002, in camera; RX01687, in camera). Second, 

Exide sought to have t l. 

(RXO 1665 at 002). Daramic refused to agree to this t 

l. (RX01668 at 002, in camera). Third, Exide sought 

at 

l. (RX01668 at 002, in camera). 

Contrary to Respondent's contention that Exide has superior economic power and has 

been able to dictate terms to Daramic, Daramic t 

109
 
l. (RX01714 at 003, in camera; RXOl720 at 039, in camera). Similarly, Daramic 

never agreed to Exide's request for t 

l. (RX1714, in camera). In fact, contrary to Mr. Toth's testimony that 

Daramic offered Exide t 

l. (Toth, Tr. 5751­

5752, in camera; RX1714, in camera). Mr. Toth's testimony, here, and elsewhere, is not 

credible. 

t 

L (Gilespie, Tr. 5818, in camera). t 

L (Gilespie, Tr. 5829-5830, in camera). t 

L (Gilespie, Tr. 5829­

5830, in camera). t 

l. (Gillespie, Tr. 5829, in camera). t 

l. (CCFOF l332 -1324; l281-1282, l315). 

t 

l. (Gilespie, Tr. 5869-5871, in camera; CCFOF 1315). t 

llO 
l. (CCFOF 1334-1336, 1341­

1342). 

t 

l. 

(Gilespie, Tr. 5838, in camera). l 

l. (Gilespie, Tr. 5825-5826,5829, in camera). 

Thus, Respondent's proffer that Exide has decided to move t L of 
 its PE separator 

purchases for t L to another suppler is not accurate.
 

t 

l. (See CCRF 

1597). 

1602. t 

. (Gilespie, Tr. 5851, in camera).
 

. (Gilespie, Tr.
 

5852, in camera). 

Response to Finding: No. 1602: 

t 

III 
l. (See CCRF 1509 above). 

t 

l. (See CCRF 1597).
 

i
 

L (Gilespie, Tr. 5839, in camera (emphasis added); see also CCRF 1541). 

1603. t 

. (Seibert,


Tr. 5723 ("t l."), in
 

camera). 

Response to Finding: No. 1603: 

t 

l. (Gilespie, Tr. 5810, in camera). In fact, Mr.
 

Seibert admitted this fact himself 
 in his deposition. (PX5076 (Seibert, Dep. at 74), in camera). 

Moreover, Mr. Toth informed investors that Daramic anticipates maintaining a supply position 

with Exide in 2010 and beyond with or without a contract. (CCFOF 1309). 

1604. t 

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

l12 
." (RX01693, in camera; see also RX01685 ("t 

. "), in

camera). 

Response to Finding: No. 1604: 

~ 

1281); t 

1288); t 

(CCFOF 1328-1330); t 

(CCFOF 1334-1336); t 

t 

L (CCFOF 

L (CCFOF 1283­

l 

l 

l. (Gilespie, Tr. 5817-5818, in camera; CCFOF 134l-1342). 

l. (Hall, Tr. 2689-2690, in camera; Gilespie, Tr. 

5815,5865-5866,5870-5871, in camera). ~ 

l13 
l. (Gilespie, Tr. 5870-5871, in camera). t 

l. 

t 

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

1605. t 

. (Seibert, Tr. 5691, in camera). t 

l. (Seibert, Tr. 5691, in camera; Toth, Tr. 5762-63, in camera). 

Response to Finding: No. 1605: 

t 

l. (See CCRF 1604 above). t 

l. (RX01687 at 002, in camera; 

Gilespie, Tr. 5812-5813, in camera). t 

l. (Gilespie, Tr. 5864, in
 

114 
camera; RXO l669 at 002, in camera (t l); RXO 1687 at 002, in 

camera).
 

t
 

l. (Gilespie, Tr. 5815, in
 

camera; CCFOF 1281). 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 t 

l. (Gilespie, Tr. 5815-5816, in camera).
 

t 

l. (Gilespie, Tr.
 

5865-5866, in camera U 

l)). t 

l.
 

t
 

l.(PX5076 

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

ll5 

- .. 
l. (CCFOF 1305-1306; Toth, Tr. 5768-5769, in camera; Seibert, Tr. 5724). 

Mr. Toth told investors as much. (Toth, Tr. 5769, in camera ("sounds like something I would 

have said."); see also CCFOF 1309). 

iv. t l 

1606. t 

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

. (RXO 170 1, in camera; RXO 1702, in camera). 

Response to Finding: No. 1606: 

Complaint Counsel has no specific response. 

1607. t
 

(Toth, Tr. 5737, in camera). In addition, t
 

l. (Toth, Tr. 5737, in camera; RX01706, in camera). 

Response to Finding: No. 1607: 

According to Respondent t 

L (Respondent's Post-Trial 

Brief for Reopened Hearing at ll). t
 

l. The facts
 

simply do not support Respondent's creative casting. t 

L something 

Daramic has refused to do. (CCFOF 1283, 1285-1287, 1290). t 

l. (CCFOF 1263, 1266). t 

l. (CCFOF 1264). t 

l. (CCFOF 1266). t 

116 

------- ï­
l. (CCFOF l281-l282). t 

l. 

1608. t 

. (Seibert, Tr. 5673, in camera; Toth, Tr. 5737,

in camera). 

Response to Finding: No. 1608: 

Complaint Counsel has no specific response. 

1609. t 

. (RX01719, in camera; Seibert, Tr. 570l-03, in camera). 

Response to Finding: No. 1609: 

Respondent's reliance on RXO 1719 is transparent and self serving. When asked directly 

at his deposition whether t 

L (CCFOF 1345-1347). What is more, RX01719 is particularly 

noteworthy in that it t 

L (RX01719 at 001-002, in camera). The 

markets for flooded lead-acid battery separators have become less competitive as a result of the 

Acquisition, not more so. The current Exide/Daramic contract negotiations are perfectly 

ilustrative of 
 this point. In 2007, when an independent Microporous was busy disrupting the 

market for flooded lead-acid battery separators, t 

l. (Gilchrist, Tr. 423; 466-467, in 

camera; Roe, Tr. 1685-1686; Hall, Tr. 2884, in camera; RX00072, in camera). t 

117 

-- ., -- ., 
l.(RX00072 at 56, in camera). Today, after 

the competitive influence of Microporous has been lost, the best offer Exide could secure for the 

equivalent separator from Daramic is t l. 

(RX01668 at 002, in camera; Seibert, Tr. 5656, in camera). Therefore, the evidence we have 

regarding the market price for the only separator market that is not a complete monopoly today shows an t l. 

(RX00072 at 56, in camera; RX01668 at 002; Seibert, Tr. 5656, in camera). 

1610. t 

. (Toth, Tr. 5739-40, in camera). 

Response to Finding: No. 1610: 

Mr. Toth's testimony cited by Respondent with respect to his discussions with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5762-5763, in 

camera). This entire finding is based on hearsay statements not offered for the truth of the 

matter asserted, violates the court's order, and should be stricken. 

t 

l. (CCFOF 1292, l304-1306). t 

l. (RX01687 at 002, in camera). 

t 

l. (RX01668 at 002, in camera 

( t 

l); RXO 1669 at 002, in camera (t 

n. t 

l18 
l. (Gilespie, Tr. 5810,5825-5826,5829, in 

camera; see also CCFOF 1256-1257). 

1611. t 

. (Toth, Tr. 5737, in
 

camera; Seibert, Tr. 5692-93, in camera). t 

. (Seibert, Tr. 5692, in 

camera). 

Response to Finding: No. 1611: 

Complaint Counsel notes only that t 

l. (CCFOF l292). 

1612. t 

(RX01692, in camera; Toth, Tr. 5772, in camera).
 

Response to Finding: No. 1612:
 

This finding is intentionally misleading. The fact is, all the options considered by the
 

t 

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

1613. t 

. (Seibert, Tr.
 

5718-19, in camera). 

Response to Finding: No. 1613: 

119
 
There is no evidence that t 

l. Even the passage of testimony
 

quoted above does not support this false claim. t 

l. (CCFOF 1292). 

t 

l. (CCFOF 1300, 1302, 1304-1306). Polypore's 

internal documents state that t 

l. (RX01692 at 001-002, in camera). Mr. Seibert himselftestified that t 

l. (Siebert, Tr. 5718-1519, in camera). 

16l4. As Toth testified, 

. (Toth, Tr. 5747-49,5772, 5739-40, in camera). 

Response to Finding: No. 1614: 

Mr. Toth's testimony cited by Respondent with respect to his discussions with Exide is 

hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 5747-5749,5739­

5740, in camera). 

1615. t
 

. (Seibert, Tr. 5694, in camera; Toth, Tr. 5766, in camera).
 

Response to Finding: No. 1615:
 

Mr. Toth's testimony cited by Respondent with respect to his discussions with Exide and 

the Polypore Board are hearsay and cannot be offered for the truth of the matters asserted. 

(Toth, Tr. 5764-5767, in camera). 

l20 
Respondent's allegation that t 

l. (RX01687 at 002, in camera; Gilespie, Tr. 5812­

5813, in camera). (Moreover, Daramic refused to even consider t 

l. 

(Gilespie, Tr. 5865-5866, RX01693 at 002, in camera). 

1616. t 

. (RX01696, in camera; Toth, Tr. 5764-67, in camera;

Seibert, Tr. 5694-95, in camera). 

Response to Finding: No. 1616: 

Complaint Counsel has no specific response. 

1617. t 

. (Toth, Tr. 5766-67, in
 

camera). 

Response to Finding: No. 1617: 

Complaint Counsel has no specific response. 

1618. t 

. (Toth, Tr. 5766, in camera). 

Response to Finding: No. 1618: 

Complaint Counsel has no specific response. 

1619. t 

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

Response to Finding: No. 1619: 

121 
Mr. Toth's testimony cited by Respondent with respect to his discussions with the 

Polypore Board are hearsay and cannot be offered for the truth of 
 the matter asserted. (Toth, Tr. 

5765, in camera). 

1620. t 

(Toth, Tr. 5766, in camera).
 

Response to Finding: No. 1620:
 

Daramic has chosen to t
 l. No force has been applied.
 

On the contrary, t 

l. (See Response to Finding No. 1607).
 

1621. t 

l .
 

(Toth, Tr. 5767, in camera).
 

Response to Finding: No. 1621:
 

Complaint Counsel has no specific response.
 

1622. Currently, t 

l .
 

(RX01707 at 003, in camera).
 

Response to Finding: No. 1622:
 

t
 

ide's plans in June of2009. 

(CCFOF l264). t 

l. (CCFOF 1263). Mr. Siebert acknowledged receipt of Ex 

l. (CCFOC 1281-1282). Exide has informed Daramic 

that it intends to t 

l. (Gilespie, Tr. 5810, in camera). In fact, Mr. Gilespie testified
 

that Exide expects to t 

l. (Gilespie, Tr. 5825-5826, in
 

l22 
camera). Exide has consistently informed Daramic that it t 

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

Between July and October 2009, Mr. Gilespie t 

l. (Gilespie, Tr. 5864, in camera; RXOl669 at 002, in camera (t 

); RX01687 at 002, in camera). Moreover, on September 30,2009, 

Exide's CEO, Mr. Gordon Ulsh, informed Mr. Toth that t 

L (RX01704 at OOl, in camera). 

t 

l. (RXO 1687 at 002, in camera; Gilespie, Tr.
 

5812-5813, in camera). 

1623. Based on the foregoing, the Court finds that 

. The Court further finds that these facts manifest that 

t 

Response to Finding: No. 1623: 

This finding is actually an unfounded conclusory statement. The preceding responses 

clearly show that Daramic had the power in its relationship with Exide. 

123
 
v. CONCLUSIONS OF LAW
 

1624. As previously found in RFOFCOL 1436, Courts and the FTC must not rely on market 

shares and concentration alone to determine whether a violation of Section 7 has occurred. The 

Merger Guidelines state that "market share and concentration data provide only the starting 

point for analyzing the competitive impact of a merger." (Sec. 2.0). The Guidelines further 

provide that "market share and market concentration data may either understate or overstate the 

likely future competitive significance of a firm or firms in the market or the impact of a 

merger." (Sec. 1.52). The courts have agreed that concentration data "(are) not conclusive 

indicators of anticompetitive effect." United States v. General Dynamics Corp., 415 U.S. 486, 

498 (1974). "(E) 
 vidence of a high market share does not require a district court to conclude 

that there is an antitrust violation" (United States v. Svufy Enterprises, 903 F.2d 659,665 n.6 

(9th Cir. 1990)), because market share statistics can be "misleading as to actual future 

competitive effect." United States v. Waste Management, Inc., 743 F.2d 976, 982 (2d Cir. 

1984). As the D.C. Circuit said, "(e) vidence of 
 market concentration simply provides a 

convenient starting point for a broader inquiry into future competitiveness." United States v. 

Baker Hughes, Inc., 908 F.2d 981,984 (D.C. Cir. 1990). 

1625. As this Court has previously found, Microporous was not an actual participant or 

uncommitted entrant in Complaint Counsel's SLI market in North America prior to the merger. 

RFOFCOL 1437-39. No evidence was presented at the hearing on Nòvember l2, 2009 to alter 

this conclusion. 

Response to Conclusion of Law No. 1625: 

This Conclusion of 
 Law in an improper and factually inaccurate inference. Complaint 

Counsel has established Microporous' competitive significance in the SLI market in North 

America, and the threat it posed to Daramic's dominance in the North American SLI market. 

(See CCFOF 526-643). 

1626. Evidence was introduced, however, at the November 12 hearing further demonstrating 

to this Court that competition is robust in Complaint Counsel's alleged SLI North America 

market and that 

Response to Conclusion of Law No. 1626: 

The reason for the reopening of the hearing record was for the court to hear evidence in 

support of 
 the four recognized proffers from Respondent's Second Motion to Reopen the 

Hearing Record. Much to the dismay of the Court, Respondent failed to support a single one of 

its proffers. 

124 
1627. As found previously by this Cour, 

. (RFOF 306). 

Now, 

Response to Conclusion of Law No. 1627: 

There is no evidence that Exide wil move a significant share of its business from 

Daramic. What has been established is t 

l. (CCFOF 1249, 1251). t 

l. (RXOl687 at 002, in camera; Gillespie, Tr. 5812-58l3, in camera). 

1628. t 

. (RX01719, in camera). All ofthis evidence
 

demonstrates that even after the merger, competition in North America among separator
 

suppliers is vigorous. 

Response to Conclusion of Law No. 1628: 

Evidence adduced at the November ith hearing demonstrates that Daramic's acquisition 

of Microporous diminished competition in the North American SLI market. (See e.g., CCRF

1510). t l. (PX 5076 (Seibert, Dep. At
 

27), in camera). t l. 

(CCFOF 1345 - 1347). t 

l25 
l. (See CCRF 1509). 

1629. It is appropriate for this Court to consider post-acquisition evidence to determine that 

the acquisition had no anticompetitive effect. See e.g. United States v. Intl Harvester Co., 564 

F.2d 769 (7th Cir. 1977) (post acquisition evidence showed no anticompetitive conduct); 

Lektro-Vend. Corp. v. Vendo Co., 660 F.2d 255 (7th Cir. 1981) (post acquisition evidence 

showed that defendant's profits and market shares declined); Vaney v. Coleman Co., 385 F. 

Supp. l337 (D.N.H. 1974) (post-acquisition evidence showed that defendant lost market 

share); United States v. FalstqffBrewing Corp., 383 F.Supp. 1020 (D.R.I. 1974) (evidence 

showed a decline in market share and profits). From the evidence before this Court, the merger 

has had no anticompetitive effect in this alleged market. The Court's conclusion here is 

buttressed by the fact that 

Response to Conclusion of Law No. 1629: 

Post-acquisition evidence that is subject to manipulation by the part 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 138l, 1384 (7th Cir. 1986) ("Postacquisition evidence that is subject to manipulation by the part seeking to use it is entitled to 

little or no weight."); B.F. Goodrich Co., 110 F.T.C. 207, 341 (1988). 

1630. The evidence from the November l2, 2009 hearing further demonstrates that the 

conditions for coordinated interaction do not exist in the alleged SLI market. According to the 

Commentary on the Merger Guidelines, "Successful coordination typically requires rivals (1) 

to reach terms of coordination that are profitable to each of the participants in the coordinating 

group; (2) to have a means to detect deviatîons that would undermine the coordinated 

interaction; and (3) to have the ability to punish deviating firms, so as to restore the 

coordinated status quo and diminish the risk of deviations. . . . It may be relatively more 

difficult for firms to coordinate on multiple dimensions of competition in markets with 

complex product characteristics or terms of 
 trade." (Commentary on the Horizontal Merger 

Guidelines at 18-19). 

Response to Conclusion of Law No. 1630: 

The acquisition is likely to give rise to coordinated anti 
 competitive effects through tacit 

or express collusion. Section 7 of the Clayton Act seeks to prohibit excessive conccntration, and 

the oligopolistic price coordination it portends. Where rivals are few, firms wil be able to 

126
 
coordinate their behavior, either by overt collusion or implicit understanding, in order to restrict 

output and raise price. See Heinz, 246 F.3d at 724-25; University Health, 938 F.2d at 1218 n.24. 

1631. Here, at the hearing on November 12,2009, Complaint Counsel offered no evidence to 

the Court to show that these conditions can be met. Rather, ample evidence was presented to 

this Court, both through testimony and exhibits, demonstrating just the opposite. Indeed, 

t 

Response to Conclusion of Law No. 1631: 

Assuming, arguendo, that respondent's claims regarding Exide's plans for its SLI 

requirements, t 

l. (See CCFOF l256). Punishing Exide is as easy as 

threatening the supply of anyone of theses other separator types, t 

L (See CCFOF 1341-1342). 

1632. As this Court has previously concluded, the presence of powerful customers in markets 

involving infrequent purchases, long-term contracts and bidding can frequently prevent 

coordinated interaction. (See RFOFCOL 1441; Baker Hughes Inc., 908 F.2d at 986 ("(t)his 

sophistication. . . was likely to promote competition even in a highly concentrated market."); 

ABA Section of Antitrst Law, Mergers and Acquisitions at 159-60 (3d ed. 2008) ("Courts 

have recognized that evidence that a small number of buyers purchase most of 
 the product in 

the market indicates that sellers may not have a great deal of freedom in establishing prices and 

thus may be less likely to adhere to a collusive agreement: Sophisticated buyers are more likely 

to detect collusion and offer sellers large orders to induce defections from the agreement or to 

vertically integrate."); FTC v. Elders Grain, 868 F.2d 901,905 oth Cir. 1989) (powerful buyers 

may cause sellers to cheat on any price agreement); FTC v. R.R. Donnelley & Sons Co., Civ. 

No. 90-1619 SSH, 1990 U.S. Dist. LEXIS 11361, at *10 (D.C. Cir. 1990) ("(T)he 

sophistication and bargaining power of 
 buyers playa significant role in assessing the effects of 

a proposed transaction.")). 

Response to Conclusion of Law No. 1632: 

"(C)courts have not considered the "sophisticated customer" defense as itself 

independently adequate to rebut a prima facie case." Chicago Bridge & Iron Co., v. FTC, 534 

F.3d 410,440 (5th Cir. 2008). The existence of 
 power buyers does not necessarily mean a 

merger won't have anticompetitive effects. Smaller to mid-sized customers without significant 

127
 
bargaining power can be impermissibly harmed by anticompetitive mergers even when power 

buyers within the same market could effectively protect themselves. United States v. United 

Tote, 768 F. Supp. l064, 1085 (D. DeL. 1991).
 

1633. The evidence presented at the November 12 hearing and before readily demonstrates to 

this Court that t 

. Power buyers such as t L make 

coordinated interaction unlikely. 

Response to Conclusion of Law No. 1633: 

Respondent's COL No. 1503 does not reference a recognized legal authority and consists 

merely ofa restatement of its Proposed Findings of Fact. 

1634. Moreover, it has been demonstrated convincingly in this hearing that t 

Response to Conclusion of Law No. 1634: 

Respondent's COL No. 1504 does not reference a recognized legal authority and consists 

merely of a restatement of its Proposed Findings of Fact. 

1635. Complaint Counsel's argument that t l is not a powerful buyer because it does 

not have" t l" is incorrect. The courts have not
 

required a minimum market share when making "powerful buyer" determinations. (See, e.g., 

Federal Trade Commission v. Elders Grain, 868 F.2d 901 (7th Cir. 1989); United States v. 

Baker Hughes, Inc., 908 F.2d 918 (D.C. Cir. 1990); In the Matter of 
 Owens-Illnois, Inc., 115 

F.T.C. 170 (1992); United States v. Archer-Daniels-Midland Co., 781 F.Supp. 1400 (S. Dist. 

Iowa, 1991)). In fact, if Complaint Counsel's statement were true, there could be 'only one 

powerful buyer in each market - a suggestion that is contrary to existing case law. Even the 

Horizontal Merger Guidelines, which recognize the "power buyer" defense, do not require that 

128
 
a powerful buyer have a requisite share of 
 the relevant purchases. Rather, the Guidelines note 

that "(b )uyer size alone is not the determining characteristic." (Sec. 2.12). 

1636. Based on the Cour's foregoing findings of 
 fact and the applicable legal standards and 

principles set forth herein, the Court concludes that the evidence adduced by Complaint 

Counsel is insuffcient to show that Polypore's acquisition of Micro porous would harm
 

competition because of coordinated interaction.
 

1637. The evidence adduced at the November 12 hearing further refutes Complaint Counsel's 

unilateral effects theory. As this Court previously found, where the FTC focus in a merger 

case is on the alleged dominance of 
 the merged entity, the FTC must show that the "merger 

may result in a single firm that so dominates a market that it is able to maintain prices above 

the level that would prevail if the market were competitive" and it must show that such 

increased prices are accompanied by "lower output." In the Matter of 
 Chicago Bridge & Iron 

Co., Dkt. No. 9300 at 7 (Jan. 6,2005). Forsyth v. Humana, Inc., l14 F.3d 1467, 1476 (9th Cir. 

1997). (RFOFCOL 1448). 

Response to Conclusion of Law No. 1637: 

The Acquisition is likely to increase Daramic's ability to unilaterally increase prices in 

the relevant markets because the acquisition eliminates competition from Microporous, 

Daramic's closest and only competitor in deep-cycle, motive and UPS markets, while 

eliminating a third competitor in the North American SLI market. 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 unlawful under Section 7 of the 

Clayton Act. United States v. Philadelphia Natl Bank, 374 U.S. 32l, 363 (U.S. 1963); Baker 

Hughes, 908 F.2d at 982-83; PPG, 798 F.2d at 1502-03; Cardinal Health, l2 F. Supp. 2d at 52 

("under Section 7 of the Clayton Act, a prima facie case can be made if the government 

establishes that the merged entities wil have a significant percentage of the relevant market ­

enabling them to raise prices above competitive levels"). 

1638. The testimony and exhibits introduced at the November 12 hearing demonstrate 

Daramic's complete lack of ability to unilaterally increase price. In fact, the evidence 

demonstrates just the opposite: 

. Monopoly power is 

"the power to control prices or exclude competition." United States v. E.l UuPont de 

Nemours & Co., 351 U.S. 377, 391 (1956). Daramic has no ability to control prices or exclude 

competition.
 

129
 
Response to Conclusion of Law No. 1638: 

Evidence adduced at the November 1th hearing demonstrates that Daramic's acquisition 

of Micro porous diminished competition in the North American SLI market. (See e.g., CCRF 

1510). t l. (PX 5076 (Seibert, Dep. At
 

27), in camera). t 

l. (See CCRF 1509). t 

l. (CCFOF 1312-1320).
 

1639. Based on the Court's foregoing findings of 
 fact and the applicable legal standards and 

principles set forth herein, the Court concludes that the evidence adduced by Complaint 

Counsel is insufficient to show that Polypore's acquisition of Micro porous would harm
 

competition because of anticompetitive unilateral effects.
 

Response to Finding: No. 1639: 

The proposed conclusion is a summary of several invalid conclusions proposed by 

Respondent. (See CCRF 1637 - 1638, above). As a result, it should be rejected as well. 

1640.. The evidence adduced at the November 12 hearing further demonstrates that Daramic 

does not have monopoly power in Complaint Counsel's SLI market. As found previously, Dr. 

Simpson's data shows 

(RFOF 1287, 1388) By themselves, those figures are too low to find monopoly power. Here, however, the evidence 

shows that t 

. Accordingly, 

Response to Finding: No. 1640: 

The proposed conclusion is factually and legally unsupported. Respondent's proposed 

findings from the original hearing are flawed. (See CCRF 127l-1272, 1277, 1281, 1285, 1388­

1392). Respondent cites no authority for its assertion that "(b)y themselves, those figures are too 

130
 
low to find monopoly power." Monopoly power can exist even when a firm holds a market 

share ofless than 50 percent. (See, e.g., In re Payment Card Interchange Fee and Merchant 

Discount Antitrust Litigation, 562 F.Supp.2d 392, 400-03 (E.D.N.Y. 2008) (collecting cases); see 

also CCRF 1285). Similarly, Respondent's assertion that t 

llacks evidentiary support. No evidence concerning 2009 market share statistics was 

introduced at either hearing in this matter. (See CC Rehearing Brief at 16-17). To the extent that 

t 

l. (See
 

CCFOF 1261-1266, 1271). Moreover, while market share evidence may be "the primary 

indicator of the existence of a dangerous probability" of achieving monopoly power, it is "not the 

sole one." (Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566,570 (2d Cir. 1990)). 

Certainly the direct evidence of 
 Daramic's ability to control prices and exclude competition is 

more probative than relying on market share evidence alone, which is at best an indirect measure 

monopoly power. (See In re Payment Card Fee Litigation, 562 F.Supp.2d at 400-02; see also 

CCRF 1638, above). 

Finally, Respondent fails to address the central issue ofliability for its past conduct. 

Complaint Counsel has alleged that Daramic attempted to maintain monopoly power in the 

of 

North American market for SLI separators. (CC Rehearing Brief 
 at 14-19). Whether Daramic 

succeeds or fails is beside the point - the attempt itself is the offense. (See, e.g., Taylor Pub. Co. 

v. Jostens, Inc., 216 F.3d 465,474-75 (5th Cir. 2000); Areeda ~806b, ~807i; CC Rehearing Brief 

at 17). In sum, the evidence is more than sufficient to establish Respondent's conduct in this 

market has violated Section 5 of the FTC Act. 

1641. Finally, additional evidence was introduced at the November 12 hearing supporting this 

Court's previous finding that there are no substantial barriers to entry into the production of 

battery separators. (RFOFCOL 1453-57). First, t 

131 
, (RFOF

1209, 1212), t 

Response to Finding: No. 1641: 

The proposed conclusion is invalid on numerous levels. First, the record reflects that 

substantial barriers to entry exist in all four relevant markets, including the SLI market. (See 

CCFOF 817-1043; CCRF 1061-1122). And despite Respondent's repetitive claim that new entry 

is imminent, the history of 
 this industry - particularly as recorded in Daramic's own documentsproves that the only new entrant of any competitive significance in years (MPLP) was taken over 

by Daramic itself. (See CCFOF 697; PX0482 at 002; PX0238 at 001 (noting that MPLP's 

expansion in 2008 was "an element we (Daramic J have not faced in many years," and "unlike 

prior years, we have a true legitimate big competitor entering the market (MP)"); see also 

CCFOF 529, 547-548, 552, 588, 642, 692-696). 

Second, Respondent attempts to create the mistaken impression that t 

l. (See Gilespie, Tr. 5849, in camera 

t l). The obvious flaws in its argument are 

Respondent's assumption about 

which no longer applies, and that Daramic is not in fact willng to t 

l. (See Gilespie, Tr. 5861-5862, in camera; CCFOF 1260, 1283).
 

Third, Respondent's reasoning that t
 

L ignores a number of factors unique 

to Exide's decision-making. Most importantly, t 

132 

l 
l. (See CCFOF 1267-1270). t 

l. (See Gilespie, Tr. 5830-5832, in camera).
 

1642. Second, t
 

Response to Finding: No. 1642: 

The proposed conclusion is incorrect and beyond the scope of the November l2 hearing. 

(See-CCRF 1514). 

1643. Based on the Court's foregoing findings of 
 fact and the applicable legal standards and 

principles set forth herein, the Court concludes that Complaint Counsel has not shown that 

there are significant barriers to entry into the production of and sale of battery separators.
 

Response to Finding: No. 1643: 

The proposed conclusion is a summary of two invalid conclusions proposed by 

Respondent. (See CCRF l641 - 1642, above). As a result, it should be rejected as well. 

VI. CONCLUSION
 

For the reasons stated above, and in Respondent's previous submissions, the Court finds 

that Complaint Counsel have not proven their claims and the acquisition between Polypore and 

Microporous Products has not, and wil not, cause competitive harm in the worldwide PE 

separator market. Accordingly, the Court dismisses the FTC's claims with prejudice. 

Response to Conclusion 

Upon consideration of Respondent's' proposed findings and Complaint Counsel's 

responses the court finds that Complaint Counsel has proven its allegations in the Complaint and 

the Relief requested shall be granted. 

133
 
Dated: December 10, 2009
 Respectfully Submitted, 

'1.. 

1. ROBE R BERTSON 

Federal Trad Commission
 

Bureau of Competition
 

600 Pennsylvania Ave., N.W.
 

Washington, DC 20580
 

Telephone: (202) 326-2008
 

Fax:(202)326-2884
 

134
 
CERTIFICATE OF SERVICE 

I hereby certify that on December 10,2009, I filed via hand delivery an original 

and two copies of the foregoing public version of 
 Complaint Counsel's Post-Trial Reply 

Proposed Findings of Fact and Conclusions of 
 Law on the Reopened Record with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvana Avenue, NW, Rm. H-135 

Washington, DC 20580 

I hereby certify that on December 10, 2009, I served via electronic mail and hand 

delivery two copies of the foregoing public version of 
 Complaint Counsel's Post-Trial 

Reply Proposed Findings of Fact and Conclusions of 
 Law on the Reopened Record with: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, H-106 

Washington, DC 20580 

oali gov (fftc. 

I hereby certify that on December 10,2009, I served via electronic mail delivery 

and first class mail two copies of the foregoing public version of 
 Complaint Counsel's 

Reply Proposed Findings of Fact and Conclusions of 
 Law on the Reopened Record with: 

Wiliam L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, Nort Carolina 28202 

williamkard(fparkerpoe.com 

ericwelsh(g,parkerpoe.com 

Linda Cunin am 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2638 

1cunningham(fftc. gov