E~;'C~~~~:~.."
 

' N,1'"''(, '1 ~ Co_,"" " li î~ ffJ,1 0..'! ~ ß ~ ll~ld M ~ ~f1 'I lJ ~t"' d ~,~ l\ L

(~/~'- F(è;;//1':¡117ìSU':~(?~
 ~. DEe ¡ Î ZOOS l


UNITED STATES OF AMERICA '\ 5'1/D5ti I
 " ~ fl I ,/ BEFORE THE FEDERAL TRADE COMMISSION ~~~~~~~i~~S~~:~~;~~~::~~:~",~.ß~~ . 

In the Matter of ) 

) Docket No. 9327 

Polypore International, Inc. 

a corporation 

) 

) 

) 

PUBLIC 

) 

RESPONDENT'S POST-TRIAL REPLY BRIEF FOR RE-OPENED HEARING 

Counsel for Respondent: 

Wiliam L. Rikard, Jr. 

Eric D. Welsh 

Deborah L. Edney 

Adam C. Shearer 

Brian R. Weyhrich 

Sarah A. Fulton 

Katie C. Miler 

PARKER POE ADAMS & BERNSTEIN LLP 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

wiliamikard(qparkerpoe.com 

ericwelsh(qparkerpoe.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(qparkerpoe.com 

PPAB 1634314vl 
Table of Contents 

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

II. FACTUAL BACKGROUND....................................................................................................3
 

III. COMPLAIT COUNSEL HAVE FAILED TO REFUTE RESPONDENT'S
 

ARGUMENT THAT POWERFUL BUYERS WILL PREVENT COORDINATED
 

INTERACTION IN THE ALLEGED SLI MARKET SEGMENT. .........................................8
 

IV. COMPLAIT COUNSEL HAVE FAILED TO SHOW THAT DARAMIC HAD
 

MONOPOL Y POWER IN THE ALLEGED SLI MARKET SEGMENT.............................. 


V. CONCLUSION....................................................................................................................... .17
 

ii 

13 
TABLE OF AUTHORITIES
 

Cases 

Ball Memorial HospitaL, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325 (7th Cir. 1986)....10
 

FTC v. Cardinal Health, Inc.,12 F .Supp. 2d 34 (D.D.C. 1998) ........................................................12
 

FTC v. RR Donnelley & Sons Co., 1990 WL 193674 (D.D.C. 1990) ...........................................10
 

Lorain Joural Co. v. United States, 342 U. S. 143 (1951) ................................. ........................... ...17
 

United States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400 (S.D. Iowa 1991)..................9-13
 

United States v. Baker Hughes, Inc., 908 F.2d 981, (D.C. Cir. 1990)...................................... 3,9-12
 

United States v. Country Lake Foods, 754 F. Supp. 669,680 (D. Minn. 1990)...........................9, 12
 

United States v. E.I. duPont de Nemours & Co., 351 U.S. 377 (1956) ..............................................1
 

United States v. Microsoft Corp., 65 F. Supp.2d 1 (D.D.C. 1999), af!'d 253 F.3d 34 (D.C. Cir.)...17
 

United States v. Philadelphia Nan Ban, 374 U.S. 321,355 (1963)...........................................1, 10
 

United States v. United Tote, Inc., 768 F. Supp. 1064, 1085 (D. DeL. 1991)...................................12
 

Statutes 

Section 7 of the Clayton Act, 15 U. S.C. § 18.......... ............... .............. ................ ....................... .......1
 

Other Authorities 

IIIB Philip E. Areeda & Herbert Hovenkamp, Antitrust Law ~ 801(a)(I) (3rd ed. 2008) ...............14
 

iii 
I. INTRODUCTION
 

Complaint Counsel have failed in their proof in this case and this Court should dismiss 

Complaint Counsel's claims. Apparently recognizing this reality, Complaint Counsel spend their 

Post- Trial Brief on the Reopened Record ("PTR Br.") distorting facts and statements made by 

Respondent, and ignoring large swaths of information and evidence adduced at the re-opened 

hearing. i Myopically focusing on facts that they like, Complaint Counsel tur a blind eye to the 

full context of all the facts that this Cour must interpret to come to a reasoned and appropriate 

decision. As Respondent has pointed out previously: "facts matter;" what Complaint Counsel 

stil seems not to understand is that all facts matter, not just those Complaint Counsel deigns to 

address. 

Notwithstanding the new infohnation brought out in tlieNovem15er 12~20n9-liearing, 

however, the evidence before this Court from the first hearing is suffcient in and of itself to sink 

the FTC's case. First, Complaint Counsel has not, and caimot, properly prove their alleged 

product and geographic markets. This fact, standing alone, ends their case. See,~, Section 7 

of the Clayton Act, 15 U.S.C. § 18 ("Section 7"); United States v. E.I. duPont de Nemours & 

Co., 351 U.S. 377,391 (1956). Additionally, they have not, and cannot show that the effects of 

the acquisition have been to "substantially lessen competition, or tend to create a monopoly." 

United States v. Philadelphia Nat' Bank, 374 U.S. 321,355 (1963). 

The November 12 hearing confirmed t 

L This is a powerful fact that Complaint Counsel
 

almost entirely ignore. It does not matter how Daramic's defenses are labeled, the fact is that 

1 Complaint Counsel's distortive and malevolent tone begins in the first paragraph, where they have taken Mr. 

Welsh's words completely and improperly out of context, and continues ad nauseam throughout their brief. 

However, as Complaint Counsel admits, "Mr. Welsh is correct" - significant evidence has emerged since the prior 

hearing because of new events and because of calculated efforts t 1 as
 

they relate to DaramIc. 

PPAB 1634314vl 
t 

.L 

All these facts matter and are inconsistent with a lessening of competition or monopoly power. 

Importantly, Complaint Counsel have failed to explain in any of their briefs how a 

company that t L can be the
 

monopolist they claim, or how relief that reaches beyond Complaint Counsel's alleged
 

geographic market can be appropriate under these circumstances. 

Weare now almost a full two years after the merger and there is no need for the Court to 

guess at the etlects of the merger - there are two years of history to review showing that Daramic 

t 

L Complaint Counsel's suggestion that Daramic has somehow 

manipulated these facts is untenable. It simply defies logic that Daramic would destroy its
 

business for this proceeding. Similarly, Complaint Counsel's statement that Daramic is somehow 

punishing t 

l 

2 
Complaint Counsel set their sights on the HHI numbers in this case then effectively put 

on blinders and have spent the ensuing months ignoring the myriad of facts showing that there is 

no proof of overpricing, excessive profit or any decline in quality, service or diminishing
 

innovation in the worldwide PE market (or in any of Complaint Counsel's alleged markets). 

Complaint Counsel apparently also forgot what the D.C. Circuit made clear in Baker Hughes: 

"The Herfindahl-Hirschman Index cannot guarantee litigation victories." United States v. Baker 

Hughes, Inc., 908 F.2d 981,982-83 (D.C. Cir. 1990). 

The evidence at the November 12 hearing shows that competition is alive and well in the 

PE separator industry and thus, in addition to all the reasons set forth below,2 and in 

Respondent's other briefing, the FTC's Complaint should be dismissed with prejudice. 

ll.	 IfAClUAL BACKGROUND 

Complaint Counsel claim that the evidence shows that Respondent's four proffers are 

false. Yet, they have ignored uncontroverted evidence that plainly supports Respondent's
 

proffers. Respondent wil not "re-argue" the points it has made in its previous filings here, or 

seek to address every unsupported statement of Complaint CounseL. Instead, Respondent wil, 

by way of example, point out just a few of Complaint Counsel's unsupported factual assertions: 

· Complaint Counsel are wrong when they state that Respondent's first proffer is 

baseless. (PTR Brief at p. 3). t 

L (R1668, in camera; RX1669, in camera; Seibert, Tr. 5660, in camera, Seibert, Tr. 5734, in 

camera); (2) place orders t 

2 Respondent wil address Complaint Counsel's arguments in the order in which they were presented in Complaint 

Counsel's Post-Trial Brief on the Reopened Record pursuant to the Court's Order on Post-Trial Briefmg. 

3 
l. (FOF 1529;
 

RX01693, in camera f( 

l; (3) t 

l. (FOF 1541; RX01681, in
 

camera; Toth, Tr. 5763-64, in camera); and (4) admit that t 

l. (FOF 1531, 1532, 1540; RX01693, in
 

camera t 

l.
 

· Complaint Counsel's bald claim that thc t
 

L is specious. (PTR Briefp. 3). 

Tellingly, Complaint Counsel fail to actually identify the t 

L - no doubt because in t 

l. There is simply no basis for the claim that these orders are comparable. (FOF 1546; 

(Seibert, Tr. 5734-35, in camera).3 

· Complaint Counsel have also failed to show that Respondent's second proffer is 

untrue. Complaint Counsel base their claim on t 

3 In fact, to compare properly the facts show that t 

1. (FOF 1534). Thus, t 

1 

(Gilespie, Tr. 5863, in camera). 

4 
." (RXOI693, in camera; see
 

also RX001685, in camera). 

. (Gilespie, Tr. 5826, 5838-39, in camera). If t 

(Gilespie, Tr. 5838, in camera). To the extent Daramic supplies the remaining t 

L (RXOI693, in camera; FOF 1540, 1549) 

Additionally, f 

L (Seibert, Tr. 5720, in camera). 

· Respondent's third proffer is likewise fully supported notwithstanding Complaint 

Counsel's arguments to the contrary. The testimony and evidence is replete that t 

5 

l 
l. As Mr. Toth testified, t 

l. (Toth, Tr. 5739-40, in camera). t
 

L (Toth, Tr. 5742­

43, in camera). In fact, 

l. 

(Toth, Tr. 5748-49, 5778, in camera). 

· Importantly, Mr. Toth's testimony related to his t 

L is entirely
 

undisputed. (Toth, Tr. 5749-50, in camera, Toth, Tr. 5756, 5758 in camera). Complait Counel did 

not present a single document into evidence that refutes any of these points, nor did they call Mr. Ulsh 

to the std to refute anytg said durg the negotiations in which Mr. Ulsh parcipated. 

· Finally, Respondent's fourth proffer is also fully supported by the actual facts on 

record. Complaint Counsel makes much of ~ 

6 
4 

L (R80 1692 at 002, in 

camera). t 

(Toth, 

Tr. 5751, in camera). 

L (RX01665 at 002-003, in camera; FOF 306-309, 339, 239, 314,442, 

569,734,946-951,1200,1236,1298; 1308, 1313, 1384, 1339, 1366-72; PX0489; Respondent's 

Response to CCFOF 324). . t 

L (FOF 1523, 

1527-28, 1594-95, 1602). t
 

L ((FOF 1602-04; Seibert, Tr. 5733, in camera; Toth, Tr. 5759, in camera; 

RX01693, in camera). 

· Significantly, t 

l. (RX01687 at 002, in camera).
 

Accordingly, Complaint Counsel's statement, and Mr. Gilespie's testimony, regarding the 

implication of industrial in the curent hearing is misleading. t 

4 Complaint Counsel incorrectly references RXO 1692 at 002 as giving Daramic a t 

1. 

7 
n. (FOF 1552. Furher, t 

l. (FOF 1552).
 

III. COMPLAINT COUNSEL HAVE FAILED TO REFUTE RESPONDENT'S
 

ARGUMENT THAT POWERFUL BUYERS WILL PREVENT COORDINATED 

INTERACTION IN THE ALLEGED SLI MARKET SEGMENT. 

Complaint Counsel argue that: (1) where courts have favorably entertained a "power 

buyer" argument, they have also relied on "other significant factors;" (2) the argument doesn't 

apply when there are small buyers; (3) the evidence shows r 

;) and (4) Respondent's evidence is entitled to "little or no weight" because it was 

"subject to manipulation by Respondent." These arguments are to no avaiL. 

Complaint Counsel's first argument is aimed at a straw man since Respondent never 

sought to rely only on a power buyer argument. Indeed, as Respondent's Post-Trial Brief shows, 

it has argued that Complaint Counsel's product and geographic markets cannot be sustained, that 

there has been no showing of actual or probable coordinated interaction or anti 
 competitive 

unilateral effects (including price increases) in any alleged markets, that Microporous was not a 

paricipant in the alleged SLI segment and was not a viable potential entrant into any alleged 

market (other than deep-cycle), that entry bariers into the production and sale of PE battery 

8 
separators are low, that Microporous was a high-cost and nonviable independent producer and 

that the industry generally was characterized by sophisticated and powerful buyers that would 

demand competitive terms and conditions from Daramic and other suppliers. 

In any event, Complaint Counsel's treatment of this argument fails. They cite United 

States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400 (S.D. Iowa 1991) ("ADM") for the 

proposition that buyers were able "to switch orders among various alternative producers." (Br. 

p. 7). The court, however, did not treat this as "(an)other significant factor" but simply as one 

of "numerous tactics" used by the powerful buyers of high fructose corn syrup ("HFCS"). 781 F. 

Supp. at 1417. Similarly, that buyers "closely examine 
 ( d) available options" and "typically 

insist(ed) on multiple, confidential bids for each order" in United States v. Baker Hughes, Inc., 

908 F.2d 981, 982-83 (D.C. Cir. 1990) did not refer to "(an)other significant factor" but to a 

characteristic of the powerful buyers of hardrock hydraulic underground driling rigs. In United 

States v. Country Lake Foods, 754 F. Supp. 669, 680 (D. Minn. 1990), the fact that the large 

buyers of fluid milk within the MSP/MSA could seek suppliers elsewhere spoke to buyer 

resourcefulness as well as to geographic market and competition issues. 

Complaint Counsel's reliance on ADM, though, is appropriate here, but for a different 

reason than advanced by Complaint CounseL. ADM is a guide to the analysis that should be 

applied in this case. The court there held that the Antitrust Division had failed to show that the
 

"acquisition," consisting of a long-term lease, violated Section 7. The court did not need to 

engage in speculation about the probable effect of the acquisition; it simply looked at 8-9 years 

of post-merger evidence. That evidence showed the "existence of large, powerful buyers" (781 

F. Supp. at 1416), e.g., Coca-Cola and Pepsi-Cola, who "directly affect(ed) the market price for 

9 
HFCS."S Id. Although it found that the HHI data weighed against the acquisition, the evidence 

itself "fail 
 ( ed) to show. . . any form of coordinated pricing or price leadership. . . with respect to 

actual transaction prices, and fail 
 ( ed) to show any likelihood of it. . . . Indeed, the evidence 

reveal(ed) precisely the opposite - a vigorous, competitive struggle for business by negotiated,
 

competitive pricing." Id. at 1421. ADM is, in other words, a case decided solely on the basis of 

market competition driven by powerful buyers - a case Complaint Counsel claims does not
 

exist. 6
 

ADM also makes a point already at least parially made in Respondent's opening brief 

(pp. 20-21), but which can be reiterated here briefly given its importance: empirical evidence of 

the state of market competition trups market share and concentration information. In ADM the 

court noted that application ot tmniliar concepts ot Philadclphia National Ban would havc it 

that the HHI data signaled that the acquisition would be "inherently likely to lessen competition 

substantially." 781 F. Supp. at 1421. But the court said that other factors here, i.e., sophisticated 

buyers, indicated that competition would not be lessened. Id. at 1423. It cited Baker Hughes, 

which had relied on Ball Memorial HospitaL. Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 

1325 (7th Cir. 1986). The Seventh Circuit made the point emphatically: "Market share is just a 

way of estimating market power, which is the ultimate consideration. When there are better 

ways to estimate market power, the cour should use them." 784 F.2d at 1336. Baker Hughes 

was equally emphatic: "To allow the governent virtally to rest its case (after presenting 

5 The significance of 
 these buyers had grown since the acquisition. The largest 20 buyers ofHFCS represented 60% 

of Archer-Daniels-Midland's 1990 sales as opposed to 40% in 1983. 

6 FTC v. R.R. Donnelley & Sons Co., 1990 WL 193674 (D.D.C. 1990) may be another. Although the court had 

concluded that the FTC had failed to prove a viable product market, it said that "the evidence demonstrates that even 

if these customers constituted a separate market, their own size and economic power, and the other characteristics of 

the 'market,' make any anti-competitive consequences very unlikely." 1990 WL 193674 at 4. 

10 
market concentration statistics) . . . , leaving the defendant to prove the core of the dispute, 

would grossly infate the role of statistics in actions brought under Section 7. The HerfindahlHirschman Index cannot guarantee litigation victories." 908 F.2d at 992. In the instant 

proceeding, the Cour has the luxury of being able to ~xamine almost two years of postacquisition market evidence, which shows, contrary to the claims of Complaint Counsel based on 

their statistics, that competition is intense. 

As noted previously, t 

). (RFOF 306). Now, t
 

). 

(RXOI719, in camera). All of this empirical evidence demonstrates that after the merger the 

state of market competition among separator suppliers in North America is vigorous. As ADM 

teaches, this trups the market share and concentration information evidence on which
 

Complaint Counsel rely. 

ADM contains many other facets that are also found in the instant case. The court there 

found that the industry was characterized by large, infrequent transactions the terms of which 

were treated as highly confidential by sellers and buyers. Id. at 1423. These facts served to 

11 
defeat any claim that coordinated interaction was likely. And, as with the instant case, where 

t 

l, the cour noted that the abilty of buyers to 

vertically integrate and sponsor new entry added to their market power. Id.7 (RX00239; 

McDonald Dep., p. 34-36; Gilchrist Dep., p. 100-21; FOF 480, 491). 

ADM found that the actions of powerful buyers in establishing a lower market price 

protected small buyers as well, in par, because of the Robinson-Patman Act prohibitions on 

price discrimination. 781 F. Supp. at 1419. Unlike the 109 arguably "unprotected" small buyers 

in United States v. United Tote, Inc., 768 F. Supp. 1064, 1085 (D. DeL. 1991), relied on by 

Complaint Counsel for their small buyer argument, there are a very limited number of purchasers 

of SLl separators II North America. t 

l 

(FOF 240; Seibert, Tr. 4172, in camera; RX01084, in camera). The minimal number of other 

buyers can also find lower separator prices given the prices driven by the large buyers and the 

substantial overcapacity in the industry. 

The evidence in this case - another post-consummation case - demands precisely the 

same analysis and result as was reached in ADM. Just as in ADM and Baker Hughes, the HHI 

statistics here should not be allowed to "guarantee" an FTC victory when the evidence speaks so 

eloquently of vigorous competition. The cour in ADM observed that the evidence of market 

competition driven by powerful buyers could not have been manipulated by the defendants. Id. 

7 The courts made similar findings in Countr Lake Foods, 754 F. Supp. at 674, and FTC v. Cardinal Health, 12 

F.Supp. 2d 34, 46 (D.D.C. 1998).
 

12 
at 1422. Contrar to the authorities cited by Complaint Counsel, those cited to the cour in 

Respondent's original brief (pp. 20-21) showed cour reliance on post-acquisition evidence of 

competitive conditions leading to determinations that the merger or acquisition did not lessen 

competition. The evidence presented in detail in Respondent's original brief shows t 

L to t
 

L Respondent would never have wished to manipulate the world to produce such 

devastating events. Common sense dictates that Daramic would not sabotage its own business 

for the sole purpose of pursuing victory in this case.8 

iv. COMPLAINT COUNSEL HAVE FAILED TO SHOW THAT DARAMIC HAD
 

MONOPOLY POWER IN THE ALLEGED SLI MARKT SEGMENT 

At the end of the first hearing the evidence was overwhelmingly to the effect that 

Daramic lacked monopoly power in the alleged SLI segment. Apparently seeking to plug this 

hole in their case, Complaint Counsel now resort to a tortured and futile argument that Daramic's 

t ) (PTR 

Brief p. 19).
 

Daramic's evidence at the close of the main hearing showed that it lacked monopoly 

power in any product market alleged (by anyone) in this case. Its market shares in all alleged 

markets were below the levels required for "monopoly power." As pointed out previously, 

Professors Areeda and Hovenkamp (relied on here by Complaint Counsel) have advised, "We 

8 Complaint Counsel's collection of alleged events manipulated by Respondent (Complaint Counsel's Post-Trial 

Brief on the Reopened Record pp. 13- i 4) is largely a list of circumstances having no relation to the important issue, 

i.e., the state of competition. By contrast, the t 1 made by Daramic t 

1 and they show intense competition at work. Daramic has t 

1 

13 
believe 70 or 75 percent to be a reasonable minimum for a 'well defined' market.,,9 By 

comparison, ~
 

L They did, however, include Daramic's t 

L It was also pointed out that Dr. Simpson's own data 

showed that Daramic had a t 

L (FOFs 1386-1390). Daramic's evidence also showed it lacked 

monopoly power in any other alleged markets because of low market shares (e.g., Dr. Simpson 

calculated DaraiiiiC's deep-cyClé iÙaikét share at' t J), failure of proor(COl'11pläÎ11t Couiisel 

failed to make any showing of monopoly power in UPS or motive), the fact of a global market 

with many producers, Daramic's inabilty to control prices or exclude competition and the low 

entry barriers into the PE separator business. (Respondent's Post-Trial Brief at 51-52;
 

Respondent's Post-Trial Reply Brief at 33-37). Moreover, all of Complaint Counsel's claims
 

about monopoly power have nothing whatever to do with the acquisition at issue here since 

Microporous, not being an SLI producer at the time, added not even a fraction of a percentage 

point to Daramic' s alleged SLI market share. In short, the evidence produced at the trial showed 

Daramic lacked monopoly power. 

The November 12 evidence reinforced and strengthened that conclusion since it showed 

that, notwithstanding ~ 

9 IIB Philip E. Areeda & Herbert Hovenkamp, Antitrst Law ~ 801(a)(I) (3rd ed. 2008). 

14 
L (Gilespie, Tr. 5870, in camera). This 

evidence produced no statistical revision of the Daramic market share but it established that 

Daramic's market share will now fall below even Dr. Simpson's 2010 estimate t L a
 

number already too low to support a finding of monopoly power. 

In spite of this mountain of evidence, Complaint Counsel now seek to argue that Daramic 

is refusing to do business t L that such refusal shows that Daramic has monopoly
 

power. They are wrong on both counts. 

t 

L The story is laid out in detail in Respondent's Post-Trial Brief for 

Reopened Hearing at 1-3,4-18 and need not be repeated here. The high points are­

. ~
 

. 

. 

. 

. 

15 
.
 

.
 

.
 

. 

. 

l 

. 

Moreover, Daramic has not refused t 

l 

The evidence just recounted does not support Complaint Counsel's claim that Daramic 

has t L (FTC Br. at 19). 

Respondent's 

monopoly power in this market." Id. at 19. 

In support of this assertion Complaint Counsel rely upon the Areeda/ovenkamp 

discussion of Lorain Journal Co. v. United States, 342 U.S. 143 (1951) and United States v. 

Microsoft Corp., 65 F. Supp.2d 1 (D.D.C. 1999), af!'d 253 F.3d 34 (D.C. Cir.). But these 

authorities do not support the burden Complaint Counsel would impose upon them because the 

Even if it had engaged in such a "refusal," that would not be "dramatic evidence of 


16 
courts in both cases relied on standard market share evidence as the basis for their conclusions 

about monopoly power and did not rely upon, and did not need to rely on, inferences based on 

conduct. Thus, the Supreme Cour in Lorain Journal noted "the substantial monopoly which was 

enjoyed in Lorain by the publisher from 1933 to 1948, together with a 99% coverage of Lorain 

families." 342 U.S. at 152-53. Similarly, the district cour in Microsoft found that "(e)very year 

for the last decade, Microsoft's share of the market for Intel-compatible PC operating systems 

has stood above ninety percent." 65 F. Supp.2d at 9. 

Findings of monopoly power were easy in those cases and were comfortably in 

compliance with the 70-75% market share level noted above as otherwise recommended by 

Areeda/Hovenkamp. Any conduct-based finding would be impossible here where the SLI 

marKet snare, even as founa 5y Complaint Counsel's own expert, t J
 

and where the refusal to deal, which is the premise of Complaint Counsel's argument, is nonexistent. Rather, Daramic's conduct consisting of 
 its attempt to t L is
 

entirely consistent with its modest and declining market position. 

v.	 CONCLUSION 

For the reasons set forth above, and more particularly in Respondent's Post Trial Brief, 

Post- Trial Brief on the Reopened Hearing, Respondent's Findings of Fact and Conclusions of 

Law, and Respondent's Response to Complaint Counsel's Findings of Fact and Conclusions of 

Law, Complaint Counsel has failed to prove their claims and each count in their Complaint 

should be dismissed with prejudice. 

17 
Dated: December 11, 2009 Respectfully Submitted, 

CJW~
 

Wiliam 1. Rikard, Jr. 

Eric D . Welsh 

PARKER POE ADAMS & BERNSTEIN LLP 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

wiliamikard(qparkerpoe. com 

ericwelsh(qparkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN LLP 

150 Fayettevile Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

johngraybeal(qparkerpoe .com 

Attorneys for Respondent 
CERTIFICATE OF SERVICE 

I hereby certify that on December 11, 2009, I caused to be fied one copy via electronic 

mail delivery and an original and two copies via hand delivery of the foregoing
 

RESPONDENT'S POST-TRIAL REPLY BRIEF FOR RE-OPENED HEARING (Public), 

and that a paper copy with an original signature is being filed with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary(qftc. gov 

I hereby certify that on December 11, 2009, I caused to be served one copy via electronic 

mail delivery and four copies via hand-delivery of the foregoing RESPONDENT'S POSTTRIAL REPLY BRIEF FOR RE-OPENED HEARING (Public) upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oali(qftc.gov 

I hereby certify that on December 11, 2009, I caused to be served via first-class mail 

delivery and electronic mail delivery a copy of the foregoing RESPONDENT'S POST-TRIAL 

REPLY BRIEF FOR RE-OPENED HEARING (Public) upon: 

J. Robert Robertson, Esq. Steven Dahm, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rro bertson(qftc. gov 3~ahW:/¿ 

Brian Weyhrich 

Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706