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FEDERAL TRAE COMMISSION

Docket No. 9327

In the Matter of

POLYPORE INTERNATIONAL, INC.,

a corporation.

RESPONDENT'S REPLY BRIEF

PUBLIC DOCUMENT

May 28, 2010

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

(704) 372-9000

Attorneys for Respondents
TABLE OF CONTENTS

Page

i. INTRODUCTION .... .................................................................................................. ........ 1

II. DIVESTITURE OF THE FEISTRITZ PLANT IS IMPROPER BECAUSE IT IS

NOT NECESSARY TO FULLY RESTORE COMPETITION ALLEGEDLY LOST

IN NORTH AMERICA. ..................................................................................................... 6

III. COMPLAINT COUNSEL FAILED TO ESTABLISH A PRIMA FACIE CASE OR

DEMONSTRATE ANTICOMPETITIVE EFFECTS IN THEIR ALLEGED

MARKTS. ......................................................................................................................17

A. Complaint Counsel Failed to Establish Relevant Product Markets. ......................19

B. Complaint Counsel Failed to Establish Any Relevant Geographic Market. .........21

C. Complaint Counsel's Failure to Prove Relevant Product Markets Deprives

Them of a Prima Facie Case and a Showing of Anticompetitive Effects. ....... .....23

1. Complaint Counsel have failed to prove an SLI separator market and

failed to show an anti competitive effect in such a market. ....................... .23

a. This alleged market was a duopoly before the Acquisition and

it remains a duopoly after the Acquisition. Microporous was

neither an actual competitor nor an uncommitted entrant into

the sale of SLI separators. ..............................................................23

b. Complaint Counsel have been unable to show probable or

actual anticompetitive coordinated interaction in the alleged

SLI market. .................................................................................. ..25

2. Complaint Counsel have failed to show that the Acquisition had any

effect in their alleged UPS market. Microporous was neither an

actual competitor nor an uncommitted entrant into the sale of UPS

separators. ................................................................................................ ..29

3. Complaint Counsel have failed to establish a relevant deep-cycle

market. Microporous' Flex-Sil product is in a market by itself and

Daramic's HD was not effectively competitive with it. ............................30

D. Complaint Counsel Have Been Unable to Show Anticompetitive Unilateral

Effects in Any of Their Alleged Markets. .............................................................34

IV. BARRERS TO ENTRY ARE LOW AND SUBSTANTIAL CUSTOMERS HAVE

SPONSORED AND ENCOURAGED ENTRY BY FOREIGN AND DOMESTIC

FIRMS............................................................................................................................... 37

V. CONCLUSION.................................................................................................................40
TABLE OF AUTHORITIES

Cases

Brown Shoe Co. v. United States, 370 U.S. 294 (1962).........................................................19,35

Cascade Natural Gas Corp. v. EI Paso Natual Gas Corp., 386 U.S. 129 (1967)........................... 8

Consol Gas Co. v. City Gas Co., 665 F.Supp. 1493 (S.D. Fla. 1987) .......................................... 33

FTC v. Arch Coal, 329 F.Supp.2d 109 (D.D.C. 2004) ...........................................................16, 19

FTC v. H.J. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001)............................................................ 4, 18

FTC v. National Lead Co., 352 U.S. 419 (1957)............................................................................ 6

FTC v. R.R. Donnelley & Sons Co., 1990-2 Trade Cas. (CCH) ir 69,239, 1990 WL 193674 (D.C.

Cir. 1990)..................................................................................................................................29

FTC v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 1997)......................................................... 19,33

FTC v. Swedish Match, 131 F.Supp.2d 151 (D.D.C. 2000)......................................................... 33

FTC v. Tenet Health Care Corp., 186 F.3d 1045 (8th Cir. 1999).................................................20

FTC v. Warer Communications, Inc., 742 F.2d 1156 (9th Cir. 1984)........................................ 33

FTC v. Whole Foods Mkt., Inc., 548 F.3d 1028 (D.C. Cir. 2008) .........................................19,35

In the Matter ofB. F. Goodrich., 110 F.T.C. 207 (1988) ............................................................. 26

In the Matter of Chicago Bridge & Iron Co., No. 9300, 138 F.T.C. 1024 (Op ofComm'n)(Dec.

22, 2004) ....................................................................................................................... 12, 14, 16

In the Matter of Diamond Alkali, 72 F.T.C. 700, 1967 WL 94030 (1967) .................................... 6

Jacob Siegel Co. v. FTC, 327 U.S. 608 (1946)............................................................................... 6

Kaiser Aluminum & Chemical Corp. v. FTC, 652 F.2d 1324 (7th Cir. 1981)............................... 4

OKC Corp. v. FTC, 455 F.2d 1159 (10th Cir. 1972)..................................................................7,8

RSR Corp. v. FTC, 602 F.2d 1317 (9th Cir. 1979)................................................................. 6,7,8

U.S. v. General Electric Co., 115 F.Supp. 835 (D.N.J. 1953) ......................................................12

United States v. Archer-Daniels-Midland, Co., 781 F.Supp. 1400 (S.D. Iowa 1991) 26, 27, 29,33

United States v. Baker Hughes, Inc., 908 F.2d 981 (DC Cir. 1990).........................4,5, 17, 18,28

United States v. Citizens & Southern Natl Ban, 422 U.S. 86 (1975) .......................................... 4

11
United States v. Country Lake Foods, Inc., 754 F. Supp. 669 (D. Minn. 1990) .......................... 20

United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377 (1956) ....................................... 31

United States v. Eastman Kodak Co., 63 F.3d 95 (2d Cir. 1995) ................................................. 21

United States v. E1 Paso Natual Gas Co., 376 U.S. 651 (1964) .......................................:.. 8,9,25

United States v. General Dynamics Corp., 415 U.S. 486 (1974) ................................................... 4

United States v. Marine Bancorporation, 418 U.S. 602 (1974)...................................................... 4

United States v. Oracle Corp., 331 F. Supp.2d 1098 (N.D. CaL. 2004)............................ 18, 19,20

United States v. Philadelphia Natl Bank, 374 U.S. 321 (1963)................................................... 18

United States v. Waste Management, 588 F. Supp. 498 (S.D.N.Y. 1983) ...................................12

Utah Public Service Comm'n v. EI Paso Natural Gas Co., 395 U.S. 464 (1969)........................... 8

Yamaha Motor Co., Ltd. v. FTC, 657 F.2d 971 (8th Cir. 1981)..................................................... 8

Other Authorities

George W. Stocking & Wilard F. Mueller, The Cellophane Case and the New Competition, 45

Am. Econ. Rev. 29 (1955) ........................................................................................................ 31

Herbert Hovenkamp, Federal Antitrust Policy (2d ed. 1999) .................. ..................................... 31

Gregory S. Vistnes, Interpreting Evidence Regarding Price Effects in Consumated Mergers:

When is Hindsight Really 20/207 (April 22, 2010) .................................................................. 34

J. Thomas Rosch (Commissioner, FTC), Litigating Merger Challenges: Lessons Leared (June

2, 2008) ..................................................................................................................................... 20

Philp E. Areeda & Herbert Hovenkamp, Antitrust Law (2d ed. 2006) ................................. 26,35

Philip Areeda & Herbert Hovenkamp, Antitrust Law (3d ed. 2007)........................25,31,32,34

Steven Tenn and John M. Yun, The Success of Divestitues in Merger Enforcement, Working

PaperNo. 296 (April 8, 2009) .................................................................................................. 10"

United States Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines, 57 Fed.

Reg. 41552 (April 2, 1992, revised April 8, 1997).................................4, 18, 19,20,26,27,31

11
TABLE OF ABBREVIATIONS

The following abbreviations and citation forms are used in this Reply Brief:

CCAB Complaint Counsel's Answering Appeal Brief

CCFOF Complaint Counsel's Proposed Findings of Fact

CCPTB Complaint Counsel's Post-Trial Brief

CCPTRB Complaint Counsel's Post-Trial Reply Brief

ID Initial Decision (reference to page number)

IDFOF Finding of Fact in Initial Decision (reference to finding number)

PX Complaint Counsel's Exhbit

RAB Respondent's Appeal Brief

RFOF Respondent's Proposed Findings of Fact

RPTB Respondent's Post-Trial Brief

RPTRB Respondent's Post-Trial Reply Brief

RPTBRH Respondent's Post-Trial Brief for the Reopened Hearing

RRCCFOF Respondent's Reply to Complaint Counsel's Proposed Findings of

Fact

RX Respondent's Exhbit

iv
I. INTRODUCTION

The global battery separator market - over two years after the Acquisition - remains'

intensely competitive, and this Acquisition has not impaired and does not threaten to adversely

affect that competition. (RAB 1 -6). Complaint Counsel complain about monopoly and duopoly

markets but must strain to do so by improperly definig the markets, and relying on speculative

evidence, to produce such structual outcomes. Although Complaint Counsel and the ALl

acknowledge the importance of valid economic analysis in a Section 7 case, Complaint

Counsel's Answering Brief confrms that their case was devoid of sound, economic analysis and

evidence. 

1 Instead, Complaint Counsel rely on a patchwork of biased customer testimony,

snippets from documents, conjectue and speculation.

The best example of the defective natue of Complaint Counsel's case is the portion of

the ALl's order requiring divestiture of the plant in Feistritz, Austria, which Respondent

contends is wholly and paricularly unsupported by the evidence and the law. Complaint

Counsel admit that the pertinent issue is whether "(d)ivestiture of (the) Feistritz Plant is

necessary to restore competition in Nort America." (CCAB 55). Respondent has shown that no

competition in need of "restoration" has been lost in North America and that the Feistritz plant

has never contributed in the production of separators or otherwise to competition in North

America. When production of CellForce was shifted from the Microporous plant in Piney Flats,

Tennessee to Feistritz after the Acquisition, i

). As of the time of the hearing, the CellForce

line in Piney Flats was operating at approximately i ) of capacity. Any acquirer of the

Piney Flats plant can compete effectively without the Feistritz plant in the North American

i For instance, rather than rebut Respondent's telling display of the defects in Dr. Simpson's economic analysis, on

which Complaint Counsel rely, they criticize Respondent for having thoroughly detailed all of those deficiencies.

(CCAB 2, 16).

1
market advocated by Complaint Counsel. Accordingly, Respondent is addressing this issue first

because, not only is the ALl's decision on Feistritz in error, but it is an error that emphatically

manfests the overall fault lines throughout the ALl's decision.

Among a number of erroneous conclusions, two paricularly egregious examples of the

unsupportable conclusions of the ALI include:

. Finding Microporous to be a participant in an SLI market even though it was not

producing separators for SLI applications, had no prospect for doing so and was

told by its owners that it should not begin making separators for SLI applications.

. Finding Microporous to be an actual paricipant or uncommitted entrant in a

supposed UPS market when it had no such product for sale and no customer had

even approved such a product. Yet, the ALJ did not find Respondent's

competitor, Entek, to be a participant or uncommitted entrant in two of Complaint

Counsel's alleged markets (motive and deep cycle), even though Entek had made

separators for such use and i

).

The reasons for this Acquisition were not the anti competitive motivations Complaint

Counsel claim, but an interest at Daramic in extending its product lines. Agai by way of

example, Complaint Counsel and the ALJ ignore evidence that consistently identified the reason

for the Acquisition - Respondent's interest in expanding its product line:

fWJe are pleased to announce that we signed today with

Microporous, a LOI, for the acquisition of their business. We

are very excited as it will allow Daramic to have access to a

diferent technology of making separators, for specifc lead acid

batteries, niche market where we are either hardly or not at all

present today. (RX01630).

Michael Graff, the Chairman of Polyp ore's Board of Directors, testified:

The rationale of the acquisition was as I stated before. It allowed

us to be more competitive as a company by broadening our

product line, to include rubber separators, which we didn't have

and our customers were interested in. (Graff, Tr. 4877, in

camera).

Robert Toth, the Chief Executive Officer of Respondent and a member of the Board, also

testified that the strategic reason for the Acquisition was to expand Daramic's product line:

2
We're interested in the rubber technology and the rubber

platform and access to the deep-cycle subsegment of the

market.... (Toth, Tr. 1552, 1554-55).

The testimony of Graff and Toth remains unrefuted. Instead of addressing that

testimony, Complaint Counsel avoid it by citing out-of-context segments of Board presentations

which discuss the financial implications of the Acquisition. (CCAB 10).

At the time of the Acquisition, Microporous produced Ace-Sil, Flex-Sil and CellForce,

the first two being pure-rubber with CellForce, a PE/rubber product. Daramic's pure-PE

separators were not competitive with Microporous' products. (RAB 2). In the proper all-PE

market, even when looking only at North America, the Acquisition of Microporous added an

insignificant market share of i ). Accordingly, to the extent the Acquisition was not

pure market extension, it was of no competitive consequence. (RAB 2-3). Flex-Sil was alone

without competition in its own separate market. When it was transferred from Microporous to

Daramic, it had no competitive impact?

The ALl's Initial Decision reflects a provincial and limited view of this industr, both in

terms of its products and geography. It is only when the ID concludes that any divestitue in this

case must include the Feistritz plant that it speaks of the global aspects of the industry. At that

point, certain important facts are conveniently ignored, including that Entek is a major

worldwide suppliers with only two plants (Oregon and the u.K.) and that, according to

Complaint Counsel, Microporous was a "worldwide maverick" in the separator industry when it

had only one plant in Piney Flats.

Complaint Counsel improperly attempt to place the burden on Respondent to prove the

merger did not violate Section 7. They incorrectly hide behind concentration levels, contending

that once they have shown "an undue increase in concentration" in each alleged market, the

2 Respondent also sho~ed, and Complaint Counsel do not disagree, that Ace-Sil separators belong in a market by

themselves in which they have no competition, and the Acquisition had no competitive effect.

3
"burden then switches to the respondent to show why . . . paricular facts and circumstances in

each market clearly show that the transaction is unlikely to have such (anticompetitive) effects."

(CCAB 30). Complaint Counsel misstate the law - the burden does not switch. Complaint

Counsel always bear the burden of persuasion. United States v. Baker Hughes, Inc., 908 F.2d

981,983 (DC Cir. 1990); Kaiser Aluminum & Chemical Corp. v. FTC, 652 F.2d 1324, 1340 (7th

Cir. 1981).

Even if Complaint Counsel had established their markets and high concentration levels,

Respondent need only show that the "concentration ratios, which can be uneliable indicators of

actual market behavior, did not accurately depict the economic characteristics of the market."

Baker Hughes, 908 F.2d at 991 (quoting United States v. Marine Bancorporation, 418 U.S. 602,

631 (1974); see also United States v. Citizens & Southern Nan Ban, 422 U.S. 86, 120 (1975);

FTC v. H.J. Heinz Co., 246 F.3d 708, 715 (D.C. Cir. 2001) ("To rebut the presumption, the

defendants must produce evidence that 'show(s) that the market-share statistics (give) an

inaccurate account of the (merger's) probable effects on competition' in the relevant market."

(quoting Citizens & Southern Nan Ban, 422 U.S. at 120)). Respondent need only "cast doubt"

on the "the persuasive quality of the statistics to predict futue anti competitive consequences,"

and can do so by offering evidence of non-entry factors including, for example, changing market

conditions. See H.J. Hein, 246 F.3d at 715, fn. 7 (evidence to cast doubt on statistical evidence

includes evidence related to ease of entry and "continuation of active price competition"); United

States v. General Dynamics Corp., 415 U.S. 486, 503-04 (1974); Baker Hughes, 908 F.2d 984

(noting non-entry factors used to successfully rebut prima facie case); United States Dep't of

Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines, 57 Fed. Reg. 41552 (April 2,

1992, revised April 8, 1997) (hereinafter the "Merger Guidelines"), Sec. 1.52. After Respondent

makes its case, the burden of producing additional evidence of anticompetitive effects shifts to

4
Complaint Counsel and "merges with the ultimate burden of persuasion, which always remains

with" Complaint Counsel. Baker Hughes, 908 F.2d at 982-83.

As Respondent has shown, Complaint Counsel's statistical case fails. (See RAB 25-28):

Respondent's evidence casts substantial doubt on the concentration ratios as accurate depicters of

the economic characteristics of the alleged markets, thereby rebutting any presumption of

ilegality. Among other things, the evidence shows that Complaint Counsel's product and

geographic markets are wrong. (See RAB 10-24). Instead, the proper product market is an all..

PE market with a separate Flex-Sil market, and the proper geographic market is globaL. (See

RA 15-18, 23-24 and infra pp. 19-22). Indeed, Complaint Counsel's alleged geographic

market is not even supported by the Elzinga-Hogart test, which is cited approvingly by the ALJ

in the ID. (RAB 23). Complaint Counsel, though, is silent on this point in their Answering

Brief, thus conceding that the geographic market borne out by this test is global, not North

America.

Beyond Complaint Counsel's flawed markets, which invalidate their HHI numbers,

Respondent has demonstrated that Daramic continues to face robust competition from Entek and

Asian competitors. (See RA 39-41, 43-44 and infra pp. 37-40). There is no dispute that

i L (RA 39)

and competed with and beat Daramic in obtaining business from East Penn (RFOF 784).

Moreover, i ) after the merger. (RAB

39). This evidence is compelling, especially in the vacuum left by Complaint Counsel's failure to

do any valid post-Acquisition economic analysis.3

3 Complaint Counsel attempts to dismiss this evidence. However, these facts are unrefuted: (1) As par of

Daramic's acquisition of the Corydon facility from Exide, i

l (RFOF 518-527,1500); (2) i

l (RFOF 1501); (3) i

l (RFOF 1549); and (4) i

L (RAB 49). i

5
For all of these reasons and others contained in Respondent's Appeal Brief and herein,

the case presented by Complaint Counsel and largely adopted by the ALJ canot be affirmed by

the Commission.

II. DIVESTITURE OF THE FEISTRITZ PLANT IS IMPROPER BECAUSE IT IS

NOT NECESSARY TO FULLY RESTORE COMPETITION ALLEGEDLY LOST

IN NORTH AMERICA.

The most striking example of the lack of objective analysis in this case is the ALl's

decision to order the Respondent to divest the Feistritz plant. Accordingly, without conceding

liability, Respondent highlights the Feistritz divestiture issue first to show the shortcomings of

Complaint Counsel's case and the ALl's error in accepting it. Without offering much arguent

or evidence, Complaint Counsel would like the Commission to rubber-stamp a divestiture.

Careful, close examination of the .record, however, reveals that such a remedy would not be

appropriate in this case even if liability were found.

The power to fashion a remedy based on an antitrust violation is not limitless. The

remedy must be "reasonable in relation to the unlawfl practices found to exist," FTC v.

National Lead Co., 352 U.S. 419, 428-29 (1957), citing Jacob Siegel Co. v. FTC, 327 U.S. 608

(1946), and complete divestitue is not always appropriate. See In the Matter of Diamond Alkali,

72 F.T.C. 700, 1967 WL 94030, *27-28 (1967)("The Commission is of course not concerned

with wreakng vengeance (nor) is it interested in adopting a purely formalistic remedy."); RSR

Corp. v. FTC, 602 F.2d 13 1 7, 1320, 1325-26 (9th Cir. 1979) (Respondent was allowed to keep

one of the four plants it acquired).4 In this case, Complaint Counsel have requested, and the ALJ

has ordered, a remedy which exceeds the limits of the Commission's authority by divesting the

merger to violate Section 7, i

l. Accordingly, at the very time that Complaint Counsel allege the

l.

4 Complaint Counsel concede the point that total divestitue is not always appropriate by citing these cases in their

Answering Brief.

6
Feistritz facility - an asset which is located outside of and has no effect on competition within

the relevant geographic market found by the ALJ.5 Although Complaint Counsel argue that

"complete divestiture is the presumptive relief for the unawfl acquisition," they ultimately

acknowledge that divestitue of assets located outside the relevant market is appropriate only "if

necessary to restore competition in the relevant markets." (CCAB 52-54)(emphasis added).

Therefore, assuming arguendo that Complaint Counsel have met their burden and are entitled to

relief, the critical issue in this matter is whether the divestitue of the Feistritz plant is necessary

to restore competition in North America. It is not.

Complaint Counsel's argument that divestiture of the Feistritz plant is necessary to

restore competition in North America lacks merit. In support of their argument, they claim that:

(1) Feistritz allowed Microporous to free up capacity in Piney Flats; (2) a "global footprint" is

necessary to compete in North America; (3) customers prefer multiple plants in case of a

possible outage; and (4) an acquirer needs "scale" to compete effectively. Complaint Counsel's

overreaching relief is not supported in the relevant case law, nor is it borne out by the facts of

this case. As with their case-in-chief, Complaint Counsel's reliance on speculation, supposition

and conjectue to support their request for divestitue does not overcome the facts regarding the

Feistritz plant.

Complaint Counsel cite RSR Corp. and OKC Corp. in support of their arguent that the

Feistritz facility should be divested. RSR Corp. v. FTC, 602 F.2d 13 17 (9th Cir. 1979); OKC

Corp. v. FTC, 455 F.2d 1159 (10th Cir. 1972). In those cases, the Ninth and Tenth Circuits,

respectively, upheld FTC orders divesting assets which were outside the relevant product

markets when those additional products were necessar to ensure the viability of NewCo. See

5 Respondent acknowledges that the Commission has the authority to divest assets located outside the relevant

geographic market if such action is necessar to restore competition within the geographic market. Contrary to

Complaint Counsel's contention, Respondent is not "object(ingJ to divestitue of the Feistritz plant merely because it

is in Europe." (CCAB 55).

7
RSR Corp., 602 F.2d at 1326, fn. 5; OKC Corp., 455 F.2d at 1161. Neither of those cases

discusses the issue applicable here - the divestitue of an asset which is outside the relevant

market and which wil detract from rather than enhance the viability of NewCo. As Respondent

has shown, the Feistritz plant would be a drain on the financial viability of New Co. (RAB 54-

56; see also infra p. 16). Unlike the situation in RSR Corp. and OKC Corp., divesting the

Feistritz plant would not provide NewCo with additional products that are necessary to NewCo's

viability.

Complaint Counsel fuher rely on Yamaha and the El Paso cases6 to support their

divestiture argument. Yamaha Motor Co., Ltd. v. FTC, 657 F.2d 971 (8th Cir. 1981); Cascade

Natual Gas Corp. v. EI Paso Natual Gas Corp., 386 U.S. 129 (1967); Utah Public Service

Comm'n v. EI Paso Natual Gas Co., 395 U.S. 464 (1969); see also United States v. EI Paso

Natual Gas Co., 376 U.S. 651 (1964). Neither case helps their cause. In Yamaha, Bruswick (a

United States company) entered into a joint venture with Yamaha (a Japanese company) under

which Brunswick acquired stock and the exclusive right to sell Yamaha's outboard motors in the

United States. Yamaha, 657 F.2d at 974. The Eighth Circuit affirmed an FTC order divesting

the joint ventue and forcing Bruswick to sell the stock it acquired back to Yamaha. Id. at 982.

The remedy included divestiture of an asset which was located outside the relevant geographic

market - the United States. Id. at 983. Of paricular importance to the FTC and the Eighth

Circuit was the fact that at the time of the joint ventue, Yamaha was actually sellng relevant

products directly into the United States. Id. at 974. In fact, Yamaha was exporting 40% of its

products to the United States. Id. Additionally, Yamaha had made two unsuccessful attempts to

enter the United States market. Id. at 978-79. Based on these facts, the Eighth Circuit concluded

6 There are several companion El Paso cases, cited here, which involve the same underlying facts.

8
that Yamaha had a direct effect on competition in the United States and upheld the FTC's order

divesting assets located outside the relevant geographic market.

In the El Paso case, EI Paso Natural Gas Co. acquired the stock and assets of Pacific

Northwest Pipeline Corp. 376 U.S. at 655. At the time of the acquisition, El Paso was the only

out-of-state supplier of nàtural gas into California. Pacific Northwest had been unable to secure

regulatory authority to operate in Californa, but it "was the only other important interstate

pipeline west of the Rocky Mountains," and it had entered into a tentative contract with Southern

California Edison to supply gas to a point on the Californa/Oregon border. Id. at 659. Deciding

that the acquisition violated Section 7, the United States Supreme Cour reversed the lower court

decisions dismissing the complaint and directed the District Cour to order divestitue of assets

located outside the relevant geographic market (Californa) because Pacific Northwest had been

a "substantial factor in the Californa market at the time it was acquired by EI Paso." Id. at 658.

Pacific Northwest had a direct effect on competition in the relevant geographic market, a fact

which gave the cou.rt authority to include it in a divestiture order. Id. at 658-59.

Here, the Feistritz plant did not have, does not have and wil not have any direct impact

on competition in North America, the ALl's geographic market. The Feistritz plant was not

commercially producing or sellng separators at the time of the Acquisition. (ROF 337).

Furher, it is undisputed that separators produced in Feistritz were never expected to be, and have

never been, shipped into the United States. (Gaugl, Tr. 4559-60). No contract existed which

required the supply of separators from Microporous' Feistritz plant for delivery in North

America. Indeed, the very notion that Feistritz would provide separators for Microporous in

North America contradicts Complaint Counsel's argument regarding the need for "local supply."

(CCAB 57-58). Microporous' strategic plan in March 2006 - a document relied on by

Complaint Counsel- made it clear that the Feistritz plant would supply customers in Europe, not

9
North America. (RX00271, in camera; CCAB 56).7 Simply stated, the Feistritz plant was and is

meant to manufactue separators for European customers, and there was no competitive overlap

between the Feistritz separators and those produced in North America.8

The evidence proves that divestitue of Feistritz is not necessar to allow NewCo to

effectively compete in North America. Michael Gilchrist, Microporous' former CEO, testified

that the Feistritz plant was not necessary for Microporous to be a viable competitor, and that

Microporous for years had manufactued and shipped separators out of Piney Flats to Europe and

Asia. (Gilchrist, Tr. 511, in camera, 540-41).9 Jim Douglas, Executive Vice President of

Douglas Battery, testified that Douglas is i

). (RFOF 837). Trojan did business

with Microporous, its sole separator supplier, for decades even though Microporous had only one

plant. (RFOF 742). Likewise, US Battery did business with Microporous for more than 15 years

even though Microporous had only the Piney Flats plant. (RFOF 854). In fact, even Complaint

Counsel have consistently argued that prior to the Acquisition, when it had a single plant,

Microporous was "a strong, worldwide competitor" and "a worldwide, competitive threat."

(CCPTB 2, 69; RA 54).

7 Contrar to the AU's findings and Complaint Counsel's assertions, this strategic plan also indentifies the separator

market as a global market. (RX0027 i).

8 The Feistritz plant has no "competitive overlap" with the relevant North American market and therefore should not

be divested. Steven Tenn and John M. Yun, The Success of Divestitures in Merger Enforcement, Working Paper

No. 296, p. 2 (April 8, 2009) ("The tyical remedy in a merger case requires divestitue of the competitive overlap.

Since the divested products are sold to finns with little or no presence in the overlap market, this outcome maintains

market concentration at the pre-merger leveL.")

9 This testimony contradicts Gilchrist's testimony cited by Complaint Counsel, indicating that "Microporous built

the (Feistritz) plant because it had determined that if it wanted to be a 'major supplier' to world-wide companies like

EnerSys, it needed to 'become a global player.'" (CCAB 56). Prior to the Acquisition, Microporous was already a

"global player," as evidenced by the fact that it shipped separators from Piney Flats to customers in Mexico, South

America, Europe, Asia, and Africa. (RFOF 342). This is another example of the inconsistencies contained in

Gilchrist's testimony.

10
Complaint Counsel assert that EnerSys, the world's largest manufactuer of batteries for

industrial applications, wishes to have multiple separator plants because separators are very

important to its business. (CCAB 58). Indeed, Lar Axt of EnerSys testified that he would not

i ) (lDFOF 1276;

Axt, Tr. 2143, in camera). Respondent pointed out the questionable natue of this testimony in

its Appeal Brief. (RAB 54). In addition to the credibility issue, there is no question that the

majority of EnerSys' motive business is located in Europe, and that Feistritz, not Piney Flats,

would supply its European plants. (Gaugl, Tr. 4559-60). Moreover, Lar Burkert of EnerSys

explained that although EnerSys preferred that Microporous have the Feistritz plant, it was not a

requirement of doing business with Microporous. (Burkert, Tr. 2385; RA 53). The reality is

that EnerSys entered into an exclusive long-term agreement with Microporous because of its

tremendous dislike for Daramic. Ironically, that exclusive long-term contract would do nothing

to foster competition in North America. In any event, not only is Complaint Counsel's assertion

on this issue based on speculation and conjecture, but it also contradicts their unequivocal

argument that local supply is necessary. (CCAB 28). Divestiture of the Feistritz plant would not

accomplish EnerSys' goal of having an additional plant from which to obtain separators if

something happened to disrupt production in Piney Flats, because, according to Complaint

Counsel's own arguments, ErierSys' North American plants could not be supplied from Feistritz

without separate testing and approvals.10 Fundamentally, Piney Flats is irrelevant to EnerSys'

European operations, and Feistritz is irrelevant to its North American facilities. Complaint

Counsel also ignore the ability of customers to warehouse separators to protect themselves

against an unforeseen potential disruption - i

). (RFOF 1529, 1533).

10 Complaint Counsel argue that during a labor strike at DaramIc's Owensboro, KY plant, customers were unable to

obtain separators from any other region of the world. (CCAB 28-29).

11
Similarly, Complaint Counsel rely on customer testimony indicating a preference for two

manufactuing locations in the event of a possible outage. (CCAB 58-59). Possible futue

events which mayor may not occur, however, are too speculative to support divestitue of the

Feistritz facility. United States v. General Electric Co., 115 F.Supp. 835, 868 (D.N.J. 1953).

The idea that an outage, work stoppage or some other potential event may occur to disrupt

production on Piney Flats' existing PE line is remote and speculative and could nevertheless be

addressed by obtaining separators from the "third line." In any event, as already explained,

North American customers would be able to obtain supply from Daramic, Entek or other

suppliers in Asia if an outage occured in Piney Flats. Additionally, a customer with such

concerns could warehouse separators to use if a disruption occurs.

The Commission is left to consider customer testimony and evidence of customer

preferences because Dr. Simpson performed no economic analysis addressing whether Feistritz

is par of the relevant geographic market, or determining the impact (if any) of Feistritz on

competition in the United States. However, the customer testimony here must be considered

carefully because the appropriate issue is not whether customers would like multiple plants

because their operations are global, as Complaint Counsel contend. Indeed, it is notable that

Complaint Counsel cite no case for this novel proposition, demonstrating the lack ot merit to

such a claim. The sole pertinent issue is the impact on competition in North America, regardless

of whether customers in North America have multinational operations or whether those

customers would prefer to have the same supplier for their operations in North America and

abroad. See United States v. Waste Management, 588 F. Supp. 498, 514 (S.D.N.Y. 1983), rev'd

on other grounds, 743 F.2d 976 (2d Cir. 1984); In the Matter of Chicago Bridge & Iron Co., No.

9300, 138 F.T.C. 1024, 1160 (Op of Comm'n)(Dec. 22,2004). This is especially true where, as

here, Complaint Counsel argued for, and the ALJ found, a North American geographic market.

12
In fact, the evidence shows that companies in the separator industry enter into contracts which

cover specific regions of the world. (See e.g. RX00962; RX00964; RX00976). Dr. Simpson

never considered whether the geographic market was global, or the competitive effects in

Europe. He never looked at whether EnerSys' needs in Europe could be met by Asian producers,

even though the evidence shows that Asian companes are selling in Europe. (RFOF 1109,

1111). Absent any expert analysis, the customer testimony relied on by Complaint Counsel and

the ALJ does not withstand scrutiny. The whims and desires of powerful, multinational

corporations are not sufficient to support divestitue of the Feistritz plant, especially where there

is no evidence that the Feistritz plant is necessar for NewCo to be an effective competitor in

North America.

Complaint Counsel fuher argue that the Feistritz plant allowed Microporous to free up

capacity in Piney Flats, which allowed Microporous to obtain additional business from EnerSys,

Exide, Trojan and US Battery. (CCAB 57). Again, Complaint Counsel's contention is

inaccurate. (RA 55-56). Contrary to Complaint Counsel's assertion, transferring production

from Piney Flats to Feistritz did not lead to additional sales in North America. (RB 55-56).

Significantly, the evidence shows that Microporous (or NewCo) would have been able to handle

all of the North American needs of EnerSys, Trojan and US Battery from Piney Flats with the

existing i ) PE line and the additional "line in boxes." (RX00677, in camera; RFOF

1104; PX0063 at 003). In 2008, CellForce production totaled nearly i l. (RX00677).11

Under its original 2007 supply agreement with Microporous, EnerSys committed i lof

CellForce to Microporous i

). (RX00207). Under

the amended contract, EnerSys committed an additional i

11 At the time of the hearing in 2009, CellForce production in FeistrItz was only f

production figure to be f 1. (RFOF 301).

1, causing this

13
l.

(RX000207). Therefore, if the Acquisition had not occured, Microporous would have supplied

an additional i ) of Cell Force to EnerSys in North America by August 2009.12

Microporous would have had well more than adequate capacity to satisfy its commitments to

Enersys.13

Rick Godber of Trojan testified that Trojan wanted to increase its use of CellForce by 5-

10%, to 21 % of its total separator usage. (Godber, Tr. 226-27; RFOF 751; PX1741).14 Godber

explained that this would amount to an additional 38 milion pieces (equating to 1.1 msm). Id.

Similarly, US Battery indicated that it wanted to increase its use of CellForce in two of its

batteries. (Wallace, Tr. 1977; Qureshi, Tr. 2037; PX1741). To accomplish this goal, US Battery

would need an additional 0.14 msm of CellForce. (PX1741).

It is entirely speculative to assume that either Trojan or US Battery would actually

increase their use of CellForce, or to assume the actual volume of CellForce either company may

take. These assertions are not based on credible evidence, and there are no strategic analyses or

planng documents to support the statements by Trojan or US Battery. In any event, divesting

the existing Piney Flats PE line and the "line in boxes," which has a capacity of 11 msm

(PX0063 at 003), would provide i L of PE capacity in Piney Flats, more than sufficient

scale to handle the existing needs and any potential incremental increases of North American

customers. As Axt testified, the key to EnerSys' amended supply agreement with Microporous

12 This figure does not take into account the fact that EnerSys' business t

l. (RFOF 720).

13 This fact also refutes the argument that an alleged anticompetitive effect in Complaint Counsel's motive market

was the elimination of Microporous' expansion plans in Piney Flats. (CCAB 38). The freed-up capacity at Piney Flats was never used, and t l.

14 Interestingly, taking Godber's assertions as tre proves that Trojan is only wiling to convert to a limited amount

of its separator needs to CellForce, casting doubt on Complaint Counsel's argument that CellForce is

interchangeable with Flex-SiL.

14
was the i ). (Axt, Tr. 2153, in camera).

Furher, if the Piney Flats plant and the additional PE "line in boxes" are divested as ordered by

the ALJ, NewCo would have significant available capacity (approximately i

n to compete for additional North American business. This

excess capacity will provide NewCo with sufficient scale to alleviate Complaint Counsel's

concerns regarding NewCo's ability to compete for business and obtain cost advantages due to

economies of scale. (CCAB 59).

Complaint Counsel continue to make the speculative assumption that Microporous would

have obtained business from Exide, even when the evidence demonstrates precisely the opposite.

In fact, during the course of discussions that dragged over many months, Exide never made a

commitment to purchase a single separator from Microporous. (RFOF 580-81). The

Memorandum of Understanding between Microporous and Exide expired in August 2007 before

it was even signed by Exide, and it was renewed only weeks before the Acquisition to make

Microporous appear more profitable for puroses of the Acquisition. (RFOF 382, 414). No

supply agreement was ever finalized, and in fact, Exide failed to even comment on the draft

supply contract prepared by Microporous. (RFOF 580(a)). Microporous had two unproductive

meetings with Exide in early 2008, neither of which advanced the ball towards a supply

relationship. (RFOF 417, 418). Complaint Counsel offered no credible, objective evidence to

demonstrate, as they must, that Microporous would have obtained business from Exide. Simply

stated, Exide had no intention of purchasing separators from Microporous, and at the time of the

Acquisition, Microporous did not believe that it would obtain Exide's business. (RFOF 419,

580(1)). In addition, Microporous' Board of Directors mandated that Microporous should not

begin producing separators for SLI applications and should not become another player in the

crowded PE market. (RX00401; PX2300 (Heglie, IHT 194-95)). The speculation concerning

15
the potential futue business relationship between Exide and Microporous canot trup the facts

which show that the relationship was going nowhere. FTC v. Arch Coal, 329 F.Supp.2d 109,

116 (D.D.C. 2004). Complaint Counsel canot rely on speculation and conjectue to prove their

case.

Complaint Counsel cite Chicago Bridge to support their argument that total divestiture

should be ordered because that "combination of assets has made a saleable package in the past."

Chicago Bridge, 138 F.T.C. at 1164 (Op of Comm'n); (CCAB 60). However, Complaint

Counsel ignore the market realities which have occured in the two years since the Acquisition,

including the evidence which demonstrates that the Feistritz plant was a financial drag on

Microporous' business. At the time of the Acquisition, Microporous was financially unstable

and had accumulated debt in the amount of $46,139,000.00. (RRCCFOF 976, 1198). The

evidence shows that if Feistritz were operating as a stand-alone entity, if would have had a

projected net income in 2009 of i l. (RRCCFOF 1198; RFOF 301).

Similarly, the 2009 projected net income for Piney Flats, if it were operated as a stand-alone

entity, would have been i l. (RFOF 301). At the time of the hearing-,

CellForce production in Piney Flats was i l, and CellForce production in

Feistritz was i

Feistritz would have been i

). (RFOF 301, 1145). The reality is that both Piney Flats and

). The i L of those facilties is

directly relevant to whether the combination of those assets is meanngful for divestiture. These

facts demonstrate that saddling NewCo with Feistritz i

l.

Assuming Complaint Counsel have met their burden as to liability, which they have not,

the divestiture of the Feistritz plant is not necessar to restore competition allegedly lost in North

16
America. The divestitue of all assets except the Feistritz facility would address any competitive

concerns created by the Acquisition. Assuming arguendo that Complaint Counsel have shown

anticompetitive effects, the proper remedy would include divestitue of the Piney Flats plant, the

line in boxes, personnel, research and development facilities, and Microporous' former

intellectual property, including the CellForce product. Divestiture of these assets would recreate

Complaint Counsel's so-called "maverick" in North America as it previously existed plus some,

and it would provide all that Complaint Counsel seek in North America. This divestiture of the

United States business would also provide sufficient excess capacity to allow NewCo to expand,

if necessar, as it competes for additional business in Nort America. In short, divestitue of the

United States business, which includes all assets other than the Feistritz plant, would fully meet

competition concerns in North America - the ALl's relevant geographic market. 

15

III. COMPLAINT COUNSEL FAILED TO ESTABLISH A PRIMA FACIE CASE OR

DEMONSTRATE ANTICOMPETITIVE EFFECTS IN THEIR ALLEGED

MARKTS.

Complaint Counsel claim that they established a prima facie case by "proving" four

product markets with a North American geographic market for each, and that the concentration

levels in each of these markets is suffciently high to entitle them to a presumption that the

Acquisition violated Section 7 of the Clayton Act. (CCAB 15-16, 30). This neat formula

ignores the warings that "(t)he Herfindah-Hirschman Index canot guarantee litigation

victories," Baker Hughes, 908 F.2d at 992, that "determining the existence or threat of

15 Complaint Counsel incorrectly. suggest that Respondent concedes that some relief is waranted on their Section 7

claim. Respondent has conceded nothing and continues to believe that Complaint Counsel have failed to meet their

burden and that no relief is necessar or appropriate. As to the portions of the ALJ's Order discussed in

Respondent's opening brief, Complaint Counsel concede the validity of Respondent's challenge to the Order

including pre-Acquisition contracts, and where Complaint Counsel argue that the Order correctly requires

Respondent to maintain a Microporous workforce of the same size as the one prior to the Acquisition, Complaint

Counsel and the ALJ simply ignore the impact of the recession on Piney Flats' business and the fact that many

employees quit Respondent's employment. Forcing Respondent to maintain other employees is punitive. Similarly,

Complaint Counsel's request for expedited treatment of this appeal is unsupported and inappropriate given the

record and the important issues raised by Respondent in this appeaL.

17
anti competitive effects has not stopped at calculation of market shares," United States v. Oracle

QQ, 331 F. Supp.2d 1098, 1111 (N.D. CaL. 2004) and that "(e) 

vidence of market concentration

simply provides a convenient staring point for a broader inquiry into future competitiveness."

Baker Hughes, 908 F.2d at 984. Indeed, Respondent has shown that Complaint Counsel's

claimed "market-share statistics give an inaccurate account of the merger's probable effects on

competition in the relevant market." Oracle, 331 F :Supp.2d at 1110.

As Respondent pointed out in its Appeal Brief, the product and geographic markets

adopted by the ALJ are unsupported by the evidence. Daramic and Microporous were not

effective competitors in any of the alleged markets. For at least two of the alleged markets -

UPS and automotive/"SLI" - Complaint Counsel failed to make a prima facie case of

anti competitive effects because the Acquisition did not inCrease concentration since Microporous

had no pre-Acquisition sales and no market share. A prima facie case is established only when

the merger "would produce 'a firm controllng an undue percentage share of the relevant market

and (would) result() in a signifcant increase in the concentration of firms in that market.'" H. J.

Heinz, 246 F.3d at 715 (emphasis added; quoting United States v. Philadelphia Nat'l Ban, 374

U.S. 321, 363 (1963)). Where the acquired firm has no market share, as here, the Acquisition

canot increase concentration.

Moreover, the authorities indicate that Complaint Counsel are not entitled to the prima

facie presumption in cases involving differentiated products where the anticompetitive effect

presumed is the unlateral effect outlined in the Merger Guidelines. Sec. 2.2. "The inability

clearly to define a market suggests that strong presumptions based on mere market concentration

may be il-advised in differentiated products unilateral effects cases." Oracle, 331 F. Supp.2d at

1121. "(A) strong presumption of anticompetitive effects based on market concentration is

18
especially problematic in a differentiated products unilateral effects context." Id. at 1122. This

principle applies to all of Complaint Counsel's alleged markets.

A. Complaint Counsel Failed to Establish Relevant Product Markets.

Rather than relying on sound economic analysis, Complaint Counsel rely heavily on the

alleged perceptions of industry paricipants about product markets in this case, arguing that

"markets are best defined by the firms that operate within them." (CCAB 16). Signficantly, this

principle espoused by Complaint Counsel, besides being at variance with the traditional formula

of the casesI6 and the Merger Guidelines, I7 was actually ignored by the ALJ in the ID. For

example, when considering the geographic market, the ALJ ignored substantial pre-Acquisition

documentation from Respondent, Microporous and Entek demonstrating that the market is in fact

global in reach. (RX00260 at 003, in camera, RX00124, in camera, RXOOll 7, in camera,

RX01068, in camera, RX01073, in camera, RX01074, in camera, RX01078, in camera,

PX0013). When considering the product market, the ALJ ignored substantial pre-Acquisition

documentation that demonstrated an all-PE market rather than the four end-use markets of Dr.

Simpson and now the ALJ. (RAB 18). Even the Microporous business plan cited by Complaint

Counsel does not support the ALl's and Complaint Counsel's supposed "motive," "UPS" and

"deep-cycle" markets, nor its North American market. (RX00271, in camera). When

confonted with evidence of views that were different from those advanced by Complaint

16 The formulation in Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962) uses the two factors: (1) "the

reasonable interchangeability of use" and (2) "the cross-elasticity of demand between the product itself and

substitues for it." In FTC v. Staples, Inc., 970 F. Supp. 1066, 1074 (D.D.C. 1997), the test posed was "whether two

products can be used for the same purose, and if so, whether and to what extent purchasers are wiling to substitute

one for the other."

17 The Guidelines SSNIP test defines a product market as "a product or group of products such that a hypothetical

profit-maximizing firm that was the only present and futue seller of those products ('monopolist' likely would

impose at least a 'small but significant and nontransitory' increase in price." Guidelines, Sec. 1.11. The Guidelines

incorporate the concepts of reasonable interchangeability of use and cross-elasticity of demand. FTC v. Whole

Foods Mkt., Inc., 548 F.3d 1028, 1037-38 (D.C. Cir. 2008); FTC v. Arch CoaL, Inc., 329 F. Supp.2d 109, II9-20

(D.D.C. 2004).

19
Counsel, the ALJ dismissed them as "more contrived than reaL." (lD 226). Both the ALJ and

Complaint Counsel, however, ignore that this evidence was offered by Complaint Counsel's own

witness, a former Microporousemployee. (Brilmeyer, Tr. 1831). Complaint Counsel's attempt

to build its case on the evidence of the "firms that operate within them" is actually derailed by

that same evidence.

Of course, product markets are not to be determined on the basis of such an insubstantial

showing. Indeed, it is for this reason that the Merger Guidelines speak of economic analysis to

determine the relevant product markets. Unfortately, Complaint Counsel chose not to present

any economic analysis, including evidence of cross-elasticity of demand, (RAB 10-12), even

though they concede the validity of such test here. (CCAB 15). In addition, contrar to the

Guidelines, which require that the SSNIP test "begin with each product (narowly defined),"

(Merger Guidelines, Sec. 1.11), Dr. Simpson applied the test by staring with end-use categories

of separators. (RAB 12; CCAB 17_22).18 In doing so he relied heavily on customer testimony,

ignoring the warings of numerous authorities cautioning against such relianceI9 and despite the

evident bias of those witnesses. Had Dr. Simpson performed the SSNIP test properly, he would

have arrived at the same all-PE market as did Respondent's expert economist, Dr. Kahwat).

Complaint Counsel's case is built on biased testimony and incomplete references to documents

18 Dr. Simpson's report shows that he refers to end-use categories of separators, not individual separators. For

example, the report states: "Several tyes of evidence indicate that for each battery separator (deep-cycle, motive;

UPS, and SLI) a hypothetical monopolist of production in North America would lose few sales if it increased price

to North American customers." (PX0033 at 006). And: "Several tyes of evidence indicate that a five to ten

percent price increase by a hypothetical monopolist of rubber or PE/rubber deep-cycle battery separators would

prompt very little shifting, at most, to other products such as PE or AGM separators." il at 012).

19 See RA 13-14; see also FTC v. Tenet Health Care Corp., 186 F.3d 1045, 1054 (8th Cir. 1999); United States v.

Oracle Corp., 331 F. Supp.2d at 1131; United States v. Countr Lake Foods, Inc., 754 F. Supp. 669,675-76 (D.

Minn. 1990); lIB Philip Areeda & Herbert Hovenkamp, Antitrust Law ("Areeda & Hovenkamp") ~ 538b (3d ed.

2007); J. Thomas Rosch (Commissioner, FTC), Litigating Merger Challenges: Lessons Leared, at 12 (June 2,

2008) ("(C)ours tend to perceive customers as having built-in bias against a merger because customers generally

favor lower prices and are inclined to think that mergers lead to higher prices.").

20
with no firm economic foundation. They have failed to meet their burden of proving their four

product markets?O

. B. Complaint Counsel Failed to Establish Any Relevant Geographic Market.

Similarly, as discussed in Respondent's Appeal Brief, the North American geographic

market adopted by the ALJ is defective in numerous ways. (RA 19-24). Although Dr.

Simpson's support for a North American market was based on a price discrimination theory, he

testified that he didn't look at pricing in different pars of the world (RFOF 1206), a somewhat

surprising fact considering that Complaint Counsel bear the burden here. Moreover, no evidence

was presented to show that Daramic's costs were uniform throughout the world, a showing

necessary to support a price discrimination theory?1 Rather than finding Dr. Simpson's opinion

"compellng," as claimed by Complaint Counsel (CCAB 27), the ALJ in fact criticized it as "lesS

preciser)" than the concept of price discrimination "generally used by economists." (ID 240).

Although Dr. Kahwaty testified that arbitrage could defeat price discrimination (Kahwaty, Tr.

5164-65, in camera), the ALl rejected that testimony without citing any evidentiary support.

(IDFOF 274).

Moreover, Complaint Counsel's claim that no customers imported separators when prices

were raised in 2007 is not supported by their citation to the record, and neither are their claims

regarding imports during periods of force majeure. (CCAB 28-29). In any event, Dr. Kahwaty's

testimony in support of a global market was not based on the ability of North American

customers to import separators but was keyed to the Guidelines' SSNIP procedure, which asks

whether customers, wherever located, of a North American hypothetical monopolist would look

to other sources in response to a North American price increase. Dr. Kahwaty testified that

20 Respondent's Appeal Brief addressed numerous other defects in the product markets advocated by Complaint

Counsel and adopted by the ALl (RB 16-19).

21 United States v. Eastman Kodak Co., 63 F.3d 95, 106-07 (2d Cir. 1995).

21
Asian producers could profitably ship PE separators to North America (RA 23-24; Kahwaty,

Tr. 5169-70, in camera)22 and that if North American prices were to increase by 5% while prices

elsewhere were held constant, "customers in South America and elsewhere would choose to

switch suppliers from North America." (R00945 at 059). The viability of Asian imports into

North America is supported by a 2007 Daramic document cited by the ALJ, which notes that

North American competition could "increase in (the) futue due to Asia." (lDFOF 435 (citing

PX0265, in camera)). And while Complaint Counsel contend that Entek did not consider Asian

separator manufacturers a threat (CCAB 27), the evidence shows the contrar to be true. As Dan

Weerts of Entek testified:

i

) (Weerts, Tr. 4468-69, in camera).

Complaint Counsel and the ALJ ignore substantial evidence that Entek, like Respondent,

viewed the market as global and that Asian separator companes are strong competitors. (See

RX00115, in camera, RX00127, in camera, RX001512, RX00117, in camera, RX00124, in

camera, RX00271, in camera; Weerts, Tr. 4473, in camera). The North American market

adopted by the ALl is not supported by the record.

22 Citing the Initial Decision at page 243 and finding number 361, Complaint Counsel complain that Dr. Kahwaty

for this analysis improperly used production costs at Daramic's Thailand plant, which, they claim, is "Daramic's

state-of-the ar, lowest-cost facility in Thailand." (CCAB 29). Finding number 3610fthe Initial Decision contains

no finding that this plant was the "lowest-cost facility" and Dr. Simpson's testimony, as relied upon by the AU, was

merely that the Daramic plant's costs were "not the cost for what independent rivals would have in Asia" (sic)

without specifying what those costs would be. (ID 243). Dr. Kahwaty made it clear that he relied on the costs of a

plant in Thailand, as opposed to one in China. (Kahwaty, Tr. 5l68-70, in camera; RFOF 1357).

22
C. Complaint Counsel's Failure to Prove Relevant Product Markets Deprives

Them of a Prima Facie Case and a Showing of Anticompetitive Effects.

Contending that they have established their product and geographic markets, which they

have not, Complaint Counsel nevertheless claim entitlement to a "presumption" that the

Acquisition was ilegal in their alleged markets because, as they argue, the supposed preAcquisition duopoly in their SLI market was stronger after the Acquisition (CCAB 32-34),

Daramic retained a pre-Acquisition monopoly in their UPS market (CCAB 32),23 and the merger

produced a monopoly in each of their deep-cycle and motive markets. (CCAB 31). Complaint

Counsel then argue that following the Acquisition, there have been actual anti competitive effects

in these markets. (CCAB 36-43). To the contrary, Respondent has shown that Complaint

Counsel failed to prove anti competitive effects in any of these markets. (RAB 25-41).

1 . Complaint Counsel have failed to prove an SLI separator market and

failed to show an anticompetitive effect in such a market.

a. This alleged market was a duopoly before the Acquisition and it

remains a duopoly after the Acquisition. Microporous was neither

an actual competitor nor an uncommitted entrant into the sale of

SLI separators.

Notwithstanding their admission that at the time of the Acquisition, "Microporous had

not yet begu supplying (SLI) separators" (CCAB 32), Complaint Counsel continue to claim that

Microporous was an "actual competitor" in their alleged SLI market. Microporous' only sale of

such a product had been an isolated sale of a small, non-commercial quantity in 2003-04, and it

is undisputed that Microporous had no contracts for the sale of such products as of the time of

the Acquisition.

The facts are simple. The one ru of SLI product made by Microporous originally for

JCI was not sold to JCI but to Voltmaster in 2004. (ROF 336). That is the only actual sale of

separators for SLI applications made by Microporous at any point in time. (McDonald, Tr.

23 Complaint Counsel fail to explain how the Acquisition added to DaramIC's pre-existing monopoly position.

23
3796-98). Subsequent discussions with JCI ended in 2007, various efforts involving one or more

MOUs with Exide expired in 2007 with no contract, and discussions with East Penn were merely

preliminary. (RAB 25-27). Perhaps the most decisive fact is that, in November 2007, the

Microporous board ordered management not to begin producing SLI separators.24 (RAB 27).

Against these facts the ALl concluded "(t)here is no question that Microporous was

bidding for SLI business" (ID 259), and Complaint Counsel claim that Microporous "was

bidding for business." (CCAB 33-34). These assertions are not supported by the facts. As

regards JCI, the ALl's findings reveal that discussions in 2005 did not lead to a contract for

various reasons, including JCI's concern that Microporous would not have the requisite capacity

by the end of 2008. (IDFOF 684-93). As regards Exide, the ALl's own findings show that the

original MOU expired in 2007, that Exide did not retu a draft supply contract and that

Microporous would have had to construct a line before it could produce the product. (IDFOF

697-715). In fact, Microporous did not believe it would ever supply Exide. (RFOF 417-I9,

580). As for East Penn, the ALJ found that Microporous "did not have the machinery or the

tooling to produce the volumes that East Penn requested." (IDFOF 720). It is a massive and

unsupportable stretch for these facts to be sumarized as showing that Microporous "was

bidding for SLI business."

Complaint Counsel also continue to rely on the Areeda/ovenkamp treatise on this issue

but, notwithstanding Respondent's showing that Microporous was not a "bidder," successful or

otherwise, they now rely on the statement that "(u)nsuccessfu bidders are no less competitors

24 Complaint Counsel assert the definitive quality of such a corporate decision to argue that f

1 (CCAB 34). Once again, however, the ID

findings cited by Complaint Counsel do not support their broad claim. The fmdings merely recite that Entek used to

sell industrial separators, f

1 (IDFOF 1027, 1029-30). None of 

these findings, however, state that f

1 as claimed by Complaint CounseL. And while Complaint Counsel assert

that t

1. (Weerts, Tr. 4490, in camera).

24
than the successfu one" (CCAB 33), and jettison any reliance on the quote that a firm is "an

'actual' rival once the entry decision has been made." (CCPTRB 29). This change in focus by

Complaint Counsel can presumably be traced to the fact that the Microporous board had not

made a decision to enter - but a decision not to enter. Professors Areeda and Hovenkamp do not

speak to whether a firm should be considered an actual competitor if it has decided not to enter,

but their judgment on that point can easily be surmised.

The only case relied upon by Areeda & Hovenkamp in this context, United States v. EI

Paso Natural Gas Co., involved very different facts. 376 U.S. 651 (1964). As discussed supra at

p. 9, El Paso was the only out-of-state supplier of natural gas into California. Pacific Northwest

("PN"), the only other competitor for business in Californa, had entered into a tentative contract

to supply gas to a point on the Californa/Oregon border. Id.at 659. Unlike Microporous with

SLI separators, PN was a major seller of natual gas in the western area and was completely

capable of delivering it to California. Accordingly, PN's position as an "actual competitor" was

far stronger than Microporous' position as an SLI supplier given that Microporous had made

only one small historical sale of the product and did not have the necessar capacity, machinery

or tooling at the time of the Acquisition.

b. Complaint Counsel have been unable to show probable or actual

anti competitive coordinated interaction in the alleged SLI market.

Without any factual evidence of coordinated interaction in their SLI market past, present

or future, Complaint Counsel again resort to reliance upon a presumption - this one that

coordinated interaction is likely in concentrated markets, which they claim exist here. (CCAB

41). In attempting to rely on this presumption, Complaint Counsel ignore Professor Areeda,

when he said: "Even in a duopoly market competition is possible and may sometimes be quite

robust." IV Areeda & Hovenkamp ~ 911a (3d ed.). Complaint Counsel also ignore the ALJ

who was unable to find any coordination before or after the Acquisition. (ID 265-66). Even

25
Complaint Counsel do not complain about coordinated interaction preceding the Acquisition, but

merely contend that competition between Daramic and Entek was not aggressive. (CCAB 42).25

Importantly, neither the ALJ nor Complaint Counsel find or claim express collusion between

Daramic and Entek in the past, the factor listed in the Guidelines as forming the basis for concern

about post-Acquisition coordinated interaction. Merger Guidelines, Sec. 2.1; see also United

States v. Archer-Danels-Midland, Co., 781 F.Supp. 1400, 1421 (S.D. Iowa 1991) ("Thè

evidence fails to show, however, any form of coordinated pricing or price leadership in thè

HFCS industry with respect to actual transaction prices, and fails to show any likelihood of it.

There is no evidence of a pattern of disciplined or coordinated pricing. Indeed, the evidence

reveals precisely the opposite - a vigorous, competitive struggle for business by negotiated,

competitive pricing. ").

Complaint Counsel argue that their presumption must stand since Respondent, as they

claim, has failed to rebut it by showing "structural bariers" to coordinated interaction. To the

contrary, Respondent has shown that the market structure in the alleged SLI market rebuts any

likelihood of coordination. Structual factors include "the nature of transacting in a market, the

size and sophistication of buyers~ and other factors." IV Philip E. Areeda & Herbert

Hovenkamp, Antitrust Law, ~ 91 6b (2d ed. 2006). The presence of "sophisticated customers"

can defeat concerns over coordination. Archer-Daniels-Midland, 781 F. Supp. at 1422 ("There is

no question that the size and sophistication of buyers in the HFCS industry is a powerful 'other

25 Complaint Counsel actually attempt to tun their complaint about nonaggressive competition into a claim of preAcquisition coordinated interaction. (CCAB 42). This attempt is extreme and is not supported by the facts relied

upon or by the FTC's own definition of coordinated interaction. Complaint Counsel cite four findings from the

Initial Decision, one of which, (636), is totally irelevant to the issue, two of which (655 and 660) refer to views of

ICI in 2002 and 2003 that Daramic was not aggressively seeking its business, and the final one (435), which refers

to nonaggressive rivalr. These facts hardly support a claim of coordinated interaction, which was described by the

FTC itself in the B. F. Goodrich case as "developing a consensus concerning price and output levels, and a means of

enforcing its terms." The FTC noted that firms paricipating in such activity "must be able to monitor rival firm

conduct, . . . must be able to detect cheating. . (and) must also be able to retaliate effectively if and when cheating

occurs." In the Matter of B. F. Goodrich, 110 F.T.C. 207, 294-95 (1988). The facts relied upon by Complaint

Counsel fall far short of showing the coordination system described by the FTC itself in B.F. Goodrich.

26
factor' that strongly mitigates against the possibility of any attempt by HFCS suppliers to raise

prices anticompetitively"). Even the Merger Guidelines note structural factors that hamper

coordination, including those "by product heterogeneity or by firms having substantially

incomplete information about the conditions and prospects of their rivals' businesses," where

"key information about specific transactions. . . is (not) available routinely to competitors" or

"where large buyers. . . engage in long-term contracting, so that the sales covered by such

contracts can be large relative to the total output of a firm in the market." Merger Guidelines,

Sec. 2.11 & 2.12. One major structual barier is that i

l. Furher, substantial

excess capacity encourages deviations from any understanding between suppliers. Merger

Guidelines, Sec. 2.12. Respondent has shown that all of these strctural factors now exist in the

SLI segment.

The battery separator industry is characterized by a fairly small number of large,

sophisticated customers that negotiate one-on-one for long-term contracts with the result that

firms do not have good information about their rivals' business. See Archer-Danels-Midland,

781 F .Supp. at 1417- 1 8. Examples of such recent negotiations involve i

). (RAB 41). Information about these transactions is not

"available routinely to competitors." Merger Guidelines, Sec. 2.12. Moreover, the evidence

demonstrates that customers are tough negotiators, drawing out negotiations for months,

sometimes years, to obtain better terms. (RRTP 53; RFOF 310, 447, 452, 472, 570, 616, 627,

653). Some customers, i l, have threatened to find alternative sources and have

in fact done so. (RFOF 475, 491). These factors make it difficult for the terms of coordination

to be reached and for deviations from any terms to be detected.

27
Complaint Counsel now claim that Daramic and Entek know the details of each other's

customer contracts. (See CCAB 42, citing IDFOF 729-33). But these findings support no such

conclusion. They show only that the companies have information about plant openings (IDFOF

731); that Daramic had information about customers Microporous was supplying (IDFOF 732);

and that, in one case, Daramic had information about a price Microporous had offered one

customer. (IDFOF 733). These findings support no claim whatsoever that Daramic and Entek

are able to obtain the details about each other's customer contracts. Entek, in this action, has

repeatedly asserted the confdentiality of its business plans and customer contracts and pricing, to

which Complaint Counsel has never objected. See,~, Third Party Entek International, LLC's

Motion and Memorandum for In Camera Treatment of Documents Previously Designated as

Confdential Pursuant to 16 C.F.R. § 345(b) (April 9, 2009); Third Par Entek International,

LLC's Supplemental Motion for In Camera Treatment of Documents Previously Designated as

Confidential Pursuant to 16 C.F.R. § 345(b) (May 6, 2009). The facts do not support Complaint

Counsel's assertions.

Far from showing coordination, Respondent has shown with substantial evidence the

vigorous competition between it and Entek in the wake of the Acquisition, with i

). (RAB 39). And Respondent and Entek continue to

compete for East' Penn's business in the United States. (RFOF 784). During contract

negotiations, i ) both demonstrated their ability to obtain terms that would defeat

any attempted coordination by Daramic and Entek. (RFOF 478, 1505-28).

Finally, although ignored by Complaint Counsel, cours have in fact found that some

mergers do not violate Section 7 because of the presence of large, sophisticated customers

capable of preventing seller coordination or collusion. For example, in Baker Hughes, the DC

28
Circuit Cour approved the district cour's findings that the product cost "hundreds of thousand

of dollars" and that customers "typically insist on receiving multiple, confidential bids for each

order. This sophistication . . . was likely to promote competition even in a highly concentrated

market." 908 F.2d at 986. Similarly, the cour in FTC v. R.R. Donnelley & Sons Co., found that

the customers' "size and economic power, and the other characteristics of the 'market,' make any

anti~competitive consequences very unikely." 1990-2 Trade Cas. (CCH) ir 69,239, 1990 WL

193674, *4 (D.C. Cir. 1990). The cour reached a similar result in Archer-Daniels-Midland,

noting that "(t)he existence of large, powerful buyers of a product mitigates against the ability to

raise prices." 781 F. Supp. at 1416. Since the same market structure and characteristics exist

here, Complaint Counsel have failed to show any likelihood of anticompetitive coordinated

interaction between Daramic and Entek in the SLI segment.

2. Complaint Counsel have failed to show that the Acquisition had any effect

in their alleged UPS market. Microporous was neither an actual

competitor nor an uncommitted entrant into the sale of UPS separators.

Microporous was not, as found by the ALJ, an actual competitor or uncommitted entrant

in a UPS market in North America. Besides the fact that Complaint Counsel produced no

evidence of what constitutes the so-called UPS market (RAB 3, 15), the controversy on this issue

appears to arise from a mistake regarding the facts on the par of the ALJ and either factual

mistakes or misrepresentations on the par of Complaint Counsel. The ALJ concluded that

Microporous "had been taking concrete steps to enter" the UPS market (ID 258), and Complaint

Counsel claimed in their Post-Trial Reply Brief that "Microporous was an actual competitor in

UPS and was selling into the market at the time of the acquisition." (CCPTRB 27). Both of

these claims are erroneous.

As pointed out in Respondent's Appeal Brief, the ALJ apparently failed to grasp that

Microporous' Project LENO was not intended to produce a UPS product for use in flooded lead

29
acid batteries (the type of battery involved in this case) in North America. (PX0663 at 002).

Rather, it was intended to produce a UPS product that would compete with Daramic's Darak

product in Europe and to be used in W VRLA batteries in Europe and the U.S. (RAB 28).

Accordingly, the ALJ erred in concluding that Microporous "had been takng concrete steps to

enter" the relevant UPS market in North America.

Complaint Counsel apparently now accept these as the correct facts since they do not

contest them in their Answering Brief. (CCAB 39). Instead, they make bland assertions about

product testing, capital expenditures and expected revenues, and conclude by referring to "har

to customers." If Complaint Counsel are basing their position on the correct facts as stated in

Respondent's Appeal Brief, which they apparently do, the customers they have in mind are

European customers whose protection is concededly not at issue in this case.26 Complaint

Counsel's claim of a Section 7 violation in their alleged UPS market has no merit and the ALl's

fi d. h' . 27 in ings ot erWlse are in error.

3. Complaint Counsel have failed to establish a relevant deep-cycle market.

Microporous' Flex-Sil product is in a market by itself and Daramic's HD

was not effectively competitive with it.

The facts demonstrate that Flex-SiL, alone, occupies its own product market.

Accordingly, contrary to Complaint Counsel and the ALJ, there is no deep-cycle market that

includes Microporous' Flex-Sil and CellForce, and Daramic's HD. Daramic and Microporous

26 In footnote 37 on page 54 of their Answering Brief, Complaint Counsel effectively admit the point made in

footnote 29 on page 52 of Respondent's Appeal Brief, i.e., that the FTC's jurisdiction extends only to the protection

of competition and consumers in the United States and does not extend to the protection of 

European consumers.

27 Elsewhere, Complaint Counsel claim that the LENa Project included "a 'white PE' separator targeting flooded

UPS batteries in North America." (CCAB 20-21). On the basis of the most pertinent authority on this point,

PX0663, this "white PE separator" seems quite remote. PX0663 describes Project LENa and on the fist page

refers to its "market & applications" as "Stationar batteries in Europe" and "Gel batteries in the US and Europe."

(pX0663 at 002). This document makes no reference to a "white PE separator," but a statement at the end of the

document reads: "If we develop the right product it wil also be used in the flooded UPS market in the U.S."

(PX0663 at 003). Surely this does not establish that Microporous was "taking concrete steps to enter" the alleged

UPS market in North America.

30
were not competitors in an alleged deep-cycle market prior to the Acquisition. As noted above,

(supra pp. 19-21), Dr. Simpson's "analysis" simply assumed these three products were in the

same market. He asked whether deep-cycle customers could use other end-use tyes of

separators rather than apply the hypothetical monopolist test beginning with "each p;roduct

(narowly defined)," as called for by the Merger Guidelines.

Complaint Counsel argue that the substantially higher price of Flex-Sil is not evidence

that it occupies its own market, as Respondent contends. (CCAB 23). But the case cited -

United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377 (1956)28 - and the story of the

case, show precisely the opposite.

In Cellophane, the governent argued that cellophane was its own product market

because it was three times as expensive as other materials like wrapping paper. Id. The Cour,

however, disagreed and found a "flexible packaging materials" market. Id. However, Complaint

Counsel do not mention that the decision is viewed as having been in error and, indeed, has

become known for the famous "Cellophane fallacy." "(I)f one had to choose either a cellophane

market or a flexible wrapping materials market, the former was the correct one." lIB Areeda &

Hovenkamp ~ 534b (3d ed.). The cour's definition of the market was too broad: "(t)he cour's

definition ofthe relevant market was probably wrong.,,29

The error arose because the Cour failed to recognize that the high cross-elasticitY-of

demand it observed derived from the fact that du Pont, with its monopoly position, was already

charging a monopoly or supracompetitive price for cellophane. Under those circumstances,

cross-elasticity of demand will be high and "overly broad markets (may be identified) when

28 Complaint Counsel give the case the short title, "du Pont," but it is usually referred to as "the Cellophane case."

lIB Areeda & Hovenkamp ~ 534b (3d ed.).

29 Herbert Hovenkamp, Federal Antitrst Policy at 104 (2d ed. 1999); see also George W. Stocking & Wilard F.

Mueller, The Cellophane Case and the New Competition, 45 Am. Econ. Rev. 29 (1955).

31
those prices have been significantly supracompetitive." lIB Areeda & Hovenkamp ir 539a (3d

ed.).

Here, although Flex-Sil has been sold at a price i ), it has continued

to dominate HD in sales. (RFOF 66, 548-49, 745-54, 864-65, 1339; Gilespie, Tr. 2954-55).

Complaint Counsel carefully avoid any claim that Flex-Sil is a superior product, contending only

that Flex-Sil and HD were "substitutes for each other." (CCAB 24). If so, the question that

neither the ALJ nor Complaint Counsel answer is why does HD with its price advantage not take

over the sales in the alleged deep-cycle market. Instead, the evidence shows that (

l. (RRCCFOF 263). Similarly, Trojan decided that Flex-Sil

would continue to constitute at least i L of its purchases and U.S. Battery "wanted" to

have HD constitute only 50% of its purchases. (CCPTRB 20). If the products are merely

equivalent, as Complaint Counsel describe it, why, given the substantially higher Flex-Sil price,

wouldn't these customers move much more decisively toward HD7 The answer is that HD is not

an effective còmpetitor to F1ex-Sil.3o

While Flex-Sil, CellForce, and Daramic HD are all differentiated products, Flex-Sil has

been far more successful than the others, enjoys a premium reputation, and has superior

performance characteristics. In these circumstances, it is not surrising that Flex-Sil faces a

downward-sloping demand cure and can be priced above a competitive leveL. Respondent's

30 Complaint Counsel's argument that customers couldn't switch to HD because DaramIC refused to supply them is

without merit. (CCAB 12). This issue is addressed in Respondent's Appeal Brief on page 31. As we show there,

in the case of u.s. Battery, there was no unmerited refusal but production problems, and in the case of Exide, the

evidence cited was not of a refusal to supply but an internal memo discussing that strategy. Moreover, the instance,s

cited by Complaint Counsel occured after the Acquisition. The question remains why the customers referenced by

Complaint Counsel did not make greater efforts to substitute HD for Flex-Sil before the Acquisition when the FlexSil price was high and Daramic was tring, but without much success, to sell HD. Again, the answer suggested by

the evidence is that customers view HD as an unsatisfactory substitute for Flex-Sil.

32
expert, Dr. Kahwaty, showed that Flex-Sil had no significant competition in its own product

market. (RX00945 at 041-49; Kahwaty, Tr. 5071, in camera). The Flex-Sil price was much

higher than HD and CellF orce prices, even though it may have been sub-optimal because it was

driven by contracts developed in the past. (RX00945 at 040). With Flex-Sil priced above a

competitive level, some customers were more interested in switching from Flex-Sil to HD than

they would have been at lower prices. But less or no such switching would have occured

without the price differential, and the lesson, of the Cellophane fallacy is that the cross price

elasticity (evaluated at curent prices) is exaggerated in such circumstances and that the resulting

markets may be defined too broadly. The Cellophane fallacy's teaching of not defining an

overly-broad market when some amount of market power is being exercised (as is common with

differentiated products) is instructive, especially when the governent's witnesses do not

provide evidence of cross-elasticity that can be analyzed rigorously.3! The ALJ defined an

overly broad market here as did the Supreme Cour in Cellophane.

Contrar to Complaint Counsel's assertions, separate product markets have frequently

been found because of substantial product price disparities.32 Indeed, Professor Areeda says:

"The absence of close price relationships among products presumptively indicates that they are

in separate markets. The prices charged by various producers of identical or nearly identical

31 Dr. Simpson did not estimate a cross-elasticity in this case. Complaint Counsel, however, claim to see a high

cross-elasticity even though the largest customer for the product, Trojan, representing more than PO%l of 

Flex-Sil sales, indicated it could t l.

(Godber, Tr. 227; RXOl120, in camera; IDFOF 546).

32FTC v. Warer Communications, Inc., 742 F.2d 1156, 1163 (9th Cir. 1984) (pre-recorded music determined a

separate market from recorded music (including home tapes) because of significant price difference); FTC v.

Swedish Match, 131 F.Supp.2d 151, 162 (D.D.C. 2000) (loose-leaf tobacco and snuff are not in the same market

because of differences in price); Staples, Inc., 970 F.Supp. at 1077 (separate market of offce supplies sold by office

superstores recognized due to price differences between office supplies sold by superstores and other retailers);

Archer-Daniels-Mid1and, 781 F. Supp. at 1409 (sugar and high frctose com syrup ("HFCS") not in the same

product market because the price ofHFCS was 10-30% lower than the price of sugar); Consol Gas Co. v. City Gas

Co., 665 F.Supp. 1493, 1517 (S.D. Fla. 1987) (natural gas found to be the product market, not including LP gas,

where the price ofLP gas was 100% higher than the price of natual gas).

33
products in the same geographic market rarely differ materially and the differences do not last

long. No producer can persistently maintain a price higher than that charged by others without a

fatal loss of sales." lIB Areeda & Hovenkamp ir 534b (3d ed.). As noted above, given the facts

they posit, Complaint Counsel have failed to explain why in their deep-cycle market allegedly

containing Flex-Sil, HD and Cellforce, Flex-Sil's substantially higher price has not caused it to

suffer such a "fatal loss of sales."

D. Complaint Counsel Have Been Unable to Show Anticompetitive Unilateral

Effects in Any of Their Alleged Markets.

In order to prove unlateral effects, Complaint Counsel must demonstrate several factors,

which they have failed to do. (See RA 32-38). These include the obvious requirement that

,

"(i)n a unilateral effects case, a plaintiff is attempting to prove that the merging paries could

unlaterally increase prices." Oracle, 331 F. Supp.2d at 1118. This seemingly simple assignent

is in reality quite complicated.

The first challenge is to separate normal or "innocent" price increases from those enabled

and driven by market power. (RAB 36). To constitute an anti 

competitive unilateral effect, a

price increase must be the result of enhanced market power that was acquired as a result of the

acquisition.33 This may require proof of what prices would have been in the "but-for world.,,34

Complaint Counsel's expert economist, Dr. Simpson, recognzed the need for such evidence with

his attempted use of a "difference-in-differences" analysis and an effort to relate alleged price

increases to Daramic's input costs. (See RAB 36-37). The ALJ also recognized the same

requirement with his imperfect use of a price index for crude oiL. (See RAB 37-38). Yet, in each

33 Gregory S. Vistnes, Interpreting Evidence Regarding Price Effects in Consummated Mergers: When is Hindsight

Really 20/20? at 4, 7 presented at the ABA Antitrst Law Spring Meeting, Mergers & Acquisitions Committee

(April 22, 2010).

34 Vistnes at 6 ("The need to estimate but-for prices means even 'obvious' price increases may fail to provide

sufficient evidence of a price 'effect.")

34
case, the ALJ and Complaint Counsel failed to make this showing for the reasons previously

discussed. (RB 36-38). In addition, use of the unilateral effects theory requires a showing that

the "customers are unsophisticated buyers who wil not be able to rebuff a price increase."

Oracle, 331 F. Supp.2d at 1171. Of course, the evidence shows convincingly that the buyers

here are sophisticated and able to rebuff price increases, as they have done repeatedly in the past.

(RFOF 251, 347-353, 759-62).

The price increase evidence cited by Co;mplaint Counsel is not, in fact, evidence of actual

post-Acquisition price increases but is dominated by evidence of alleged Daramic expectations

regarding such increases. (CCAB 11-12, 36). As discussed in Respondent's Appeal Brief, the

ALl's findings relating to alleged price increases are actually findings that price increases were

sought or were anounced, not findings that price increases were put in place and paid. (RA

36). In addition, the price increase evidence used both by Complaint Counsel and the ALJ is

defective, since there is no evidence any alleged increases were actual increases after infation

and other adjustments, no evidence any increases were the result of additional market power

derived from the Acquisition, and no evidence of prices that would have been in effect in the

"but-for" world. Further, Dr. Simpson's difference-in-differences and input cost analyses, as

well as the ALl's similar input cost analysis, have been shown to be deficient. (RA 36-38). In

short, this case contains no solid evidence of price increases driven by acquired market power,

-the main and necessary point of a unlateral effects case.35 Oracle, 331 F. Supp.2d at 1118.

35 Complaint Counsel hope to plug the gaps in their price increase case by citing Daramicdocuments they claim

show plans for post-Acquisition price increases and justifying the use of such documents as showing

"anticompetitive intent." (CCAB 35). Such evidence, however, loses its value in a post-consumation case where

the actual evidence of alleged price increases, as here, is full of holes. Moreover, the authorities cited by Complaint

Counsel don't support their broad claim. The Areeda analysis doesn't stop with Complaint Counsel's quote but

states, two subparagraphs later, that such "intent" documents "may have been made by an overly exuberant

acquisition proponent. " IVA Areeda & Hovenkamp 'i 964c (2d ed.). Moreover, no pre-merger intent documents

are referred to in Brown Shoe v. United States, 370 U.S. 294 (1962). It is true that Judge Tatel in FTC v. Whole

Foods Market, Inc., cited both Areeda and Brown Shoe but Judge Kavanaugh, in dissent, pointed out that "a CEO's

bravado with regard to one rival canot alter the laws of economics." 548 F.3d at 1057.

35
Complaint Counsel have taken many unfair and unjustified liberties with the facts

regarding their post-Acquisition price increase claims. They claim that Daramic believed the

Acquisition would enable it to raise prices and that the Acquisition has "allowed" Daramic to

raise prices. (CCAB 10-11). The first claim says nothig about an actual price increase36 and

the second claim is not supported by the citations.3? Complaint Counsel claim there were

specific price increases directed at Trojan, Exide and U.S. Battery. (CCAB 12). The facts of 

the

Trojan and U.S. Battery situations are discussed in Respondent's Appeal Brief. (See RA 31-

32). Contrary to Complaint Counsel's claim about Trojan, price increases were not "instituted"

in 2008. Rather, the ALl's findings show that Daramic proposed a price increase to Trojan

which it rejected, the companes were unable to reach agreement and i

l. (IDFOF 556-60). Also, as is explained in Respondent's Appeal Brief, Daramic did not

arbitrarily force U.S. Battery to purchase Flex-Sil instead of less expensive HD. (RAB 31).

Rather, Daramic was unable to produce HD separators for U.S. Battery's application because it

did not have the proper tooling. (IDFOF 566). As for Exide, the ALl's findings show that it

agreed to pay Daramic a cost-justified rubber surcharge (which it had refused to pay

Microporous) but refused to pay a price increase. (IDFOF 562-63). Notwithstanding these facts,

both Complaint Counsel and the ALl erroneously treated this as a pure price increase (ID 263;

CCAB 12) even though the ALJ had generally treated "input price increases" as justifiable. (ID

36 Page 269 of the Initial Decision, cited by Complaint Counsel, refers only to certain budget and other documents

incorporating potential price increases. Documents referencing possible price increases are particularly worthless in

this case given the many instances in which customers have simply "refused" input cost surcharges and cost-based

price increases (PX0950 at 005,014), e.g., Exide's acceptance of the cost-based rubber surcharge but refusal of a

price increase referenced in text and noted in IDFOF 563.

37 Pages 261 through 626 of the Initial Decision merely refer to certain price increases that were announced with no

indication whether or to what extent they took effect. Findings 723-29,856,861,867,880-81 and 917-22 of 

the

Initial Decision contain no evidence of implemented price increases but refer, instead, to potential price increases

and Daramic cost increases.

36
262). Complaint Counsel also claim that Daramic raised motive separator prices but the citations

(lD 263; IDFOF 611) indicate only that Daramic "anounced" such increases leaving open (and

unproved) the key question in this case - whether the customers accepted and paid them. As for

the alleged Bulldog price increase, (CCAB 38), finding 613 of the Initial Decision indicates that

if it went into effect (as to which there is no evidence), it may have been cost justified. Finally,

Complaint Counsel rely on the Initial Decision at pages 264-65 for their broad claim about postAcquisition SLI price increases, (CCAB 13), but this citation says utterly nothing about such

increases. In sum, Complaint Counsel's price increase claims are wholly deficient. Complaint

Counsel have failed to show that any such increases were not justified, by increased costs or

otherwise, and that they were enabled by enhanced market power resulting from the Acquisition.

iv. BARRERS TO ENTRY AR LOW AND SUBSTANTIAL CUSTOMERS HAVE

SPONSORED AND ENCOURGED ENTRY BY FOREIGN AND DOMESTIC

FIRMS.

Respondent's Appeal Brief sets forth in detail the facts and evidence showig that entry

barriers into the battery separator industry :ae low and that substantial battery producers like

i L have either sponsored or considered sponsoring entry. (RAB 41-50).

It is urecessary to recount all of these facts since Complaint Counsel, for the most par, have

ignored and failed to rebut them. (CCAB 44-52). Most importantly, the evidence shows that the

. battery companies, which instigated and supported this action challenging the Acquisition, have

consistently demonstrated that they have substantial market power and are able to protect

themselves' and market competition from any anti competitive effects allegedly flowing from it.

This conclusion is borne out by the realities in the marketplace, much of which has

occured since the Acquisition. i

37
).

(IDFOF 1046, 1049). Further acting to diversify its sources of supply, i

i

). (IDFOF 1121).

) (RX00055; Hall, Tr. 2838-

39, in camera).

In addition, shortly after the hearing in this matter, i

). See ALl's Order on Complaint Counsel's Motion for

Offcial Notice (Feb. 16, 2010). Another Daramic customer, East Penn, continues to turn to

Entek as competition continues to thrive between Daramic and Entek for East Penn's North

American business. (RFOF 784).

Although Complaint Counsel argue that "power buyers" have no leverage unless they

have alternative sources of supply (CCAB 50-51), they ignore the fact that battery manufactuers

in this industry have been able to apply negotiation pressure in other ways. One of the more

aggressive demonstrations of buyer power (as recorded by the ALl's own findings) has actually

come from Trojan, which purchases separators for deep-cycle applications from Daramic, a

market in which Complaint Counsel argue Trojan has no alternatives. (CCAB 51). As noted in

Respondent's Appeal Brief, Trojan took the position that it would accept a price increase only if

it obtained a i ) and thereafer i

). (IDFOF 556-60). Other aggressive actions have been

taken by battery manufactuers. (RAB 47-50). EnerSys refused to pay price increases and

surcharges from Microporous and utilized a i ) negotiating

method with Daramic. (RFOF 625.) i

38
J. (RFOF 1544; ALl's Order on Complaint

Counsel's Motion for Official Notice (Feb 16,2010)).

Complaint Counsel and the ALJ are incorrect in dismissing Asian separator suppliers.

i L as discussed above and in Respondent's Appeal Brief.

i

J. (RAB 48 and citations). i

). (RAB 49-50 and citations).

i

J.

(RA 49-50 and citations).38

Complaint Counsel and the ALJ give insufficient weight to the significance of this

pattern of actual and proposed separator purchasing and sponsorship of new entry by the large

battery manufacturers. They also give insufficient weight to the prospects for non-de novo entry,

paricularly the ability of i

).39 Entek formerly supplied separators for motive application to EnerSys and

38 Complaint Counsel dismiss the Asian separator manufacturers, stating that while North American customers have

conducted testing, testing has not been completed and none have been qualified for use in North America. (CCAB

50). But the same can be said of Microporous' LENO product. (RAB 27-28). Yet, based on the non-qualified

LENO product, the AU found Microporous to be an actual paricipant in the supposed UPS market. This is another

example of the AU's inconsistent approach to the facts in this case.

39 Indeed, the AU found that the PE production lines in Feistritz could be used to manufacture separators for either

SLI or industrial applications. (IDFOF 778). Notwithstanding that fmding, the AU ignored Respondent's evidence

showing that PE production lines could easily be switched from SLI to industrial, and vice versa. (RAB 34; RFOF

153-156). Most of the equipment used to construct a PE line can be purchased '~offthe shelf' from several different

39
Crown. (IDFOF 1040; RFOF 807). i

). (RFOF 943-44, 963-72; RX00114, in camera; Weerts, Tr. 4490, in

camera). Indeed, i

). (IDFOF 1035-39, 1042, 1045). These actions belie Complaint Counsel's

contention that i ). (CCAB 34).

The evidence regarding conditions of entry and the aggressive and effective actions taken

by battery manufactuers shows that there need be no concern about post-Acquisition

anti competitive effects in the battery separator industry. The ALJ erred in not so concluding.

V. CONCLUSION

For the reasons set forth above and in Respondent's Appeal Brief, Respondent

respectfully submits that Complaint Counsel's Complaint should be dismissed with prejudice,

and that judgment should be rendered in Respondent's favor.

vendors. (RFOF 1064). The ease with which a competitor can switch from SLI to industrial makes entr by i

l and/or Asian suppliers even more likely.

40
Dated: June 4,2010 Respectfully Submitted,

Wi L. Kard, Jr. ~t.

Eric D. Welsh

PARKR POE ADAMS & BERNSTEIN LLP

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

Telephone: (704) 372-9000

Facsimile: (704) 335-9689

wiliamikard(gparkerpoe.com

ericwelsh(gparkerpoe.com

John F. Graybeal

PARKR POE ADAMS & BERNSTEIN LLP

150 Fayettevile Street

Raleigh, NC 27602

Telephone: (919) 835-4599

Facsimile: (919) 828-0564

j ohngraybeal(gparkerpoe.com

Attorneys for Respondent
CERTIFICATE OF SERVICE

I hereby certify that on June 4, 2010, I caused to be fied via hand delivery and electronic

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

(Public Version), and that the electronic copy is a true and correct copy of 

the paper original and

that a paper copy with an original signature is being fied with:

Donald S. Clark, Secretar

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW, Rm. H-135

Washington, DC 20580

secretary(ßftc. gov

I hereby certify that on June 4, 2010, I caused to be served one copy via electronic mail

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

(Public Version) upon:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

oalj(ßftc.gov

I hereby certify that on June 4, 2010, I caused to be served via first-class mail delivery

and electronic mail delivery a copy of the foregoing Respondent's Reply Brief (Public Version)

upon:

1. Robert Robertson, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

rrobertson(ßftc.gov

Steven Dah, Esq.

Federal Trade Commission

600 Pennsylvania A venue, NW

Washington, DC 20580

sdah(ßftc.gov

Adam C. Shearer (icsL

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

Telephone: (704) 335-9050

Facsimile: (704) 334-4706