UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

William E. Kovacic 

J. Thomas Rosch 

Edith Ramirez 

Julie Brill 

In the Matter of 

Polypore International, Inc., 

a corporation 

) 

) 

) 

) 

) 

Docket No. 9327 

PUBLIC 

ORDER ON RESPONDENT'S THIRD MOTION 

TO REOPEN THE HEARING RECORD 

Respondent Polypore International, Inc. has filed a Third Motion to Reopen the 

Hearing Record, in which it seeks leave to conduct additional discovery and for a hearing 

before the Commission to permit the introduction of new evidence. Respondent asserts 

that it has uncovered evidence that recently entered the deep-cycle and motive 

markets, thus calling into question the Administrative Law ludge's (ALl) conclusion that 

Daramic's acquisition of Microporous eliminated Daramic' s only competitor in these 

markets. I Complaint Counsel oppose the motion. For the reasons described below, the 

Commission will deny Respondent's motion, but will as a matter of discretion admit into 

evidence the four affidavits submitted in support of Respondent's motion and the 

declaration submitted in support of Complaint Counsel's opposition to Respondent's 

motion. 

I Respondent and Complaint Counsel redacted the identity of certain companies 

in their briefs, even though confidential treatment appears unnecessary and neither party 

filed a motion for in camera treatment. In the interest of public disclosure, we omit only 

those identities deemed confidential by the ALl. Accordingly, this Order will be placed 

on the public record in its entirety ten calendar days after it has been served upon 

Respondent and Complaint Counsel, consistent with Section 21 (d)(2) of the Federal 

Trade Commission Act, 15 U.S.C. § 57b-2(d)(2), and Commission Rule of Practice 3.45, 

16 C.F.R.. § 3.45. See also Notice ofIntent to Disclose Provisionally Redacted 

Information, Intel Corporation, FTC Docket No. 9341 (Jan. 26, 2010); Orkin 

Exterminating Co., 108 F.T.C. 147 (1986); General Foods Corp., 95 F.T.C. 352, 355 

(1980); RSR Corp., 88 F.T.C. 206 (1976); RSR Corp., 88 F.T.C. 734, 735 (1976); HP. 

Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). 
Under Commission Rules 3.51(e)(1) and 3.54(a), 16 C.F.R. §§ 3.51(e)(1), 

3.54(a),2

 a party may move to “reopen the proceeding for the reception of further 

evidence” at any time before the Commission issues its decision. The parties agree that 

Brake Guard Products sets forth the applicable standard for reopening the record. Under 

that test, “the Commission considers: (1) whether the moving party can demonstrate due 

diligence (that is, whether there is a bona fide explanation for the failure to introduce the 

evidence at trial); (2) the extent to which the proffered evidence is probative; (3) whether 

the proffered evidence is cumulative; and (4) whether reopening the record would 

prejudice the non-moving party. Brake Guard Products, Inc., 125 F.T.C. 138, 248 n.38 

(1998) (citing Chrysler Corp. v. FTC, 561 F.2d 357, 362-63 (D.C. Cir. 1977)); see also

Rambus Inc., FTC Docket No. 9302, 2006 WL 2522715 (Aug. 1, 2006) (relying on Brake 

Guard Products standard). Complaint Counsel concede that the proffered evidence is 

probative (Brief of Complaint Counsel at 7), so we focus on the other three factors. None 

militates in favor of reopening the hearing in this matter. 

First, Respondent has not acted with due diligence in presenting evidence of the 

competitor’s alleged entry into the deep-cycle markets.3 Respondent asserts that it was 

unaware of entry until informed by two battery manufacturers, , 

in May and June of this year and that it then promptly filed its motion to reopen. 

However, the record demonstrates that Respondent was aware of development of 

a deep-cycle product prior to the hearing before the ALJ. Specifically,

 (Pfanner Dep. at 77-80 (Jan. 28, 2009) (confidential).) Respondent did not 

call this witness at trial, but did put this information into its expert report. (RX00945-

132, in camera.) In addition, a different witness testified at the hearing that Entek was 

developing a deep-cycle separator. (Balcerzak, Tr. 4130-31, 4138-39.) In short, 

Respondent has not offered a bona fide explanation for its failure to introduce additional 

evidence at trial regarding attempts to develop a deep-cycle separator product. 

Second, Respondent’s evidence is cumulative of what was presented at the 

hearing. As previously noted, there was evidence before the ALJ regarding 

 2

 On May 1, 2009, the Commission published several amendments to its Rules of 

Practice designed to expedite the Part 3 litigation process. See 74 Fed. Reg. 20205. 

These rules govern all proceedings initiated on or after May 1, 2009. See id.; see also 74 

Fed. Reg. 1804 (establishing interim final rules for actions commenced after January 13, 

2009). Because the complaint in this matter was issued on September 10, 2008, the Rules 

of Practice in effect prior to the amendments govern this proceeding. 

3

 Respondent’s brief asserts that has also entered the motive market, as 

evidenced by from that company. However, none of 

the affidavits accompanying Respondent’s motion refers to motive separators or motive 

batteries. In addition, Complaint Counsel have submitted a declaration from JCI 

indicating that JCI does not make motive batteries. (Gruenstern Dec. ¶ 2; see also Hall, 

Tr. 2665 (“Q. Does JCI make any motive power batteries? A. No. Johnson Controls 

isn’t in that segment.”).) 

2
development of a deep-cycle separator. Respondent’s witness from Crown Battery 

testified at the hearing that it had plans to test a deep-cycle separator sample from Entek. 

(Balcerzak, Tr. 4130-31 (“I’ve asked him to make us golf car material, which he’s 

working on right now.”); see also id. at 4138-39.) 

Third, reopening the record to permit additional discovery and a hearing before 

the Commission would prejudice Complaint Counsel. Although Respondent claims to 

seek only “limited discovery,” it is in fact seeking broad discovery that could require 

significant time and expense by Complaint Counsel. Specifically, Respondent requests 

the right to issue subpoenas for documents and testimony relating to the manufacture, 

development, marketing, purchase, or testing of deep-cycle and motive battery separators 

in the United States since the close of discovery. (Respondent’s Proposed Order at 1-2.) 

Furthermore, the Commission is mindful that in any litigation involving a consummated 

merger, unnecessary procedural delays may increase the risk of ongoing injury to 

consumers and competition. That risk is heightened here, given the ALJ’s findings that 

the acquisition of Microporous by Daramic resulted in higher prices to customers. 

(Findings of Fact 897-922; Initial Decision at 261-62.) Respondent has therefore failed 

to establish that reopening the record is warranted. 

Notwithstanding the denial of Respondent’s request to reopen the hearing record 

to conduct additional discovery and to hold an evidentiary hearing, the four affidavits 

accompanying Respondent’s motion shall be admitted into evidence and considered by 

the Commission when rendering its decision. While the probative value of these 

affidavits is limited, their admission into evidence will not delay these proceedings or 

prejudice Complaint Counsel. Indeed, Complaint Counsel have already submitted a 

rebuttal declaration, which will also be admitted into evidence and considered by the 

Commission. 

Much of the content of these affidavits and declarations is, of course, hearsay, but 

the Commission has held that “all relevant and material evidence—whether hearsay or 

not—is admissible, as long as it is reliable.” American Home Products Corp., 98 F.T.C. 

136, 368 n.9 (1981). See also Kellogg Co., 99 F.T.C. 8, 31-32 (1982) (“Section 3.43(b) 

of the Commission’s Rules of Practice provides for the admission of relevant, material, 

and reliable evidence. It does not exclude hearsay evidence, and hearsay evidence may 

be received.”); Philadelphia Carpet Co., 64 F.T.C. 762, 773 (1964) (“[I]t is long settled 

that hearsay evidence is not to be out of hand rejected or excluded by administrative 

tribunals.”).4

 Respondent’s affidavits have sufficient indicia of reliability as to the deepcycle market on account of their consistency with existing evidence in the record, in 

particular the testimony of Crown Battery. 

Accordingly, 

 4

 The Commission recently revised Rule 3.43(b) of its Rules of Practice to 

acknowledge that hearsay evidence may be considered if it is relevant, material, and 

reliable. See note 2, supra. 

3
IT IS ORDERED THAT the affidavits of Robert B. Toth, S. Tucker Roe, Randy 

A. I-Ianschu, and Steve McDonald accompanying Respondent's Third Motion to Reopen 

the Hearing Record shaH be admitted into evidence; 

IT IS FURTHER ORDERED THAT the decl aration of Robert Gruenstem 

accompanying Complaint Counsel 's Response to Respondent's Third MOlion to Reopen 

thc Hearing Record shall be admitted into evidence; 

IT IS FURTHER ORDERED THAT Respondent's Third Motion to Reopen the 

Hearing Record is otherwise denied; and 

IT IS FURTHER ORDERED THAT oral argument shall take place according 

to the Notice Scheduling Oral ArglUnent issued on June 28,2010, 

By the Commission, 

Donald S. Clark 

Secretary 

ISSUED: July 19, 201 0 

4