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BEFORE THE FEDERAL TRADE COMMISSION 

)


In the Matter of
 )
 

) Docket No. 9327
 

Polypore International, Inc. Public
 ) 

a corporation.
 ) 

) 

RESPONSE TO RESPONDENT'S SECOND MOTION TO 

REOPEN THE HEARING RECORD 

Respondent ("Polypore") seeks to delay a ruling in this matter by reopening the record 

and Hearing to introduce cumulative evidence on issues it has already fully argued at trial and in 

post trial briefings. The "new" and "additional" evidence that Respondent claims this Court 

must consider would not impact the outcome in this matter because none of the proffered 

evidence addresses the market structure, concentration levels, or lack of entry proven by 

Complaint CounseL. Complaint Counsel respectfully opposes any delay. 

The issue Respondent wants to raise 

L was well 

developed at triaL. 

.l But as the attached _l declaration explains, there is nothing
 

new that has changed the competitive dynamics after triaL. Respondent offers no evidence of 

anything new but instead offers mere supposition by its attorneys that perhaps 

L This is not new evidence; it is not evidence 

at all. Moreover, the one photograph of an unauthenticated document supposedly from a trade 

show in Asia would never be admitted into evidence in any event, and it does not say what 

Respondent says it does. On its face, it merely says that Anpei, which sells multiple products, 
has "the best quality service" around the world - it says nothing about sellng any of the products 

at issue in this case anywhere. 

In addition, any delay harms customers who continue to pay monopoly prices. Such a 

further delay wil har consumers and is not warranted because Respondent failed to show
 

sufficient grounds for reopening and, even if admitted and true, the alleged "new" facts would 

have no impact on the outcome of the Hearing, since they do not address market structure, 

concentration, or entry. 

RESPONDENT CANNOT DEMONSTRATE WHY THE RECORD SHOULD BE 

REOPENED TO ADMIT CUMULATIVE AND IRRELEVANT EVIDENCE 

As His Honor has previously held, "Unless due process is to be completely ignored in 

these proceedings, then the date the record closes must mean that the record is indeed closed." 

Chicago Bridge & Iron Co., Docket No. 9300, Order, June 12,2003. Respondent must show 

good cause to introduce new evidence during the proceeding, much less to reopen the hearing in 

order to add new evidence, something it has failed to do; i 

Respondent provides for no precedent for such a drastic delay of the ALl's initial 

decision. The Part 3 Rules specifically provide that "Hearings shall proceed with all reasonable 

expedition, and, insofar as practicable, shall be held at one place and shall continue, except for 

brief intervals of the sort normally involved in judicial proceedings, without suspension until 

concluded." 16 C.F.R. § 3.41(b). Further, the Part 3 Rules provide strict time limits on 

adjudicative proceedings that can only be altered on a showing of 
 "extraordinary circumstances." 

i See, e.g., Brake Guard Products, Inc. 125 F.T.C. at 248 n.38 (noting the standard for 

reopening the record in a pending administrative litigation after trial has ended but before the 

Commission has issued its opinion: "( 1) whether the moving part can demonstrate due 

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

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

proffered evidence is cumulative; and (4) whether reopening the record would prejudice the non2 
16 C.F.R. § 3.51(a). Respondent has failed to show good cause for the introduction of new 

evidence, much less the extraordinary circumstances necessary to delay a ruling so it can have an 

additional Hearing. This is particularly true where Respondent appears to proffer a document 

from a conference in Asia that can only be authenticated by a witness from Anpei, a company 

which is located in Asia and has no personnel in North America. Respondents' additional 

"facts" are simply irrelevant and speculative. Indeed, Respondent fails to offer any admissible 

evidence to support its theories, which it previously argued repeatedly at triaL. 

The investigation of 
 this matter started in March 2008. Polypore has had ample time to 

review documents, question witnesses, and prepare its defenses in this matter. Indeed Polypore 

listed both _l and Anpei witnesses on its witness lists, but decided not to call them.
 

L Polypore may not now delay a decision by post-hoc 

rethinking its litigation strategy and adding additional evidence after the close of discovery, 

much less the close of 
 the hearing and the record.2 

Moreover, ifPolypore is permitted to add evidence into the record of 
 things that occurred 

after the close of discovery, Complaint Counsel wil be prejudiced because it has not had the 

opportnity to gather evidence of ongoing anticompetitive conduct by Respondent. Thus there is 

simply no possibility that reopening the record would be merely a "half a day" hearing, as 

Respondent suggests. To reopen the record to admit Respondent's "new" evidence would cause 

"undue delay, waste of 
 time, or needless presentation of cumulative evidence," and thus the 

exclusion is proper under 16 C.F.R. §3.43 (b). 

moving part.").
 2 Discovery in this matter closed on March 13,2009; Respondent's final witness and 
RESPONDENT FAILS TO PROVIDE ANY PROBATIVE. ADDITIONAL FACTS 

Respondent urges the court to reopen the Hearing so it can put on evidence for two "new" 

facts: 

.l The unsupported arguments made by Respondent are not new at all, but 

are a rehash of the arguments it has already made. 

l In short, nothing has changed competitively. 

l
 

Daramic claims, however, that this supposed evidence is new because
 

L This is nC?thing new at alL. 3 

exhibit lists were submitted March 27 3 

4 
l 

l 

l 

.L 
III This fact was well-developed at trial, and has not changed.
 

.L Respondent has thus not demonstrated the proper bases that would 

necessitate an additional Hearing. Accordingly, Respondent's motion should be denied. 

THE PHOTO OF AN ALLEGED ANPEI DOCUMENT is NOT ADMISSIBLE 

Respondent has not met-and-conferred with Complaint Counsel with respect to the 

6 
proposed, alleged Anpei exhibit, and to the extent that Respondent is attempting to move this 

document into evidence, it must be denied for this reason, among many others. Certainly 

Respondent has not made any attempt to show good cause as to why this document should be 

admitted into evidence. Respondent has even failed to make a formal proffer concerning this 

document, although it suggests through a limp non sequitur that Anpei's representations of "best 

quality service" coupled with 

L This unauthenticated document does not even begin to support this 

allegation at all. Indeed, the evidence at trial, as confirmed by the attached declaration, 

demonstrated that this is not tre because 

In short, this purported "evidence" is a photo of an inadmissible and unreliable hearsay 

document presumably from a third part that does not support the inference urged by 

Respondent. As Respondent concedes in its motion, it is not clear that the document refers to 

Anpei's sales PE separators at alL. A document that states only that Anpe Sepa (presumably, 

Anpei) has the "best quality service" around the world adds nothing new or relevant to the mix. 

Respondents' proffer of this document should be denied. 
Dated: October 1, 2009 Respectfully submitted, 

/J. Róbert 'lobertson ~'/-.

CÓmplaint Counsel
 

Bureau of Competition
 

Federal Trade Commission
 

600 Pennsylvania Ave, NW (H-374)
 

Washington, DC 20580
 

Telephone: (202) 326-2008
 

Facsimile: (202) 326-2214
 

8
 
EXHIBIT A 

ATTACHMENT TO
 

RESPONSE TO RESPONDENT'S SECOND MOTION
 

TO REOPEN THE HEARING RECORD 

POL YPORE INTERNATIONAL, INC.
 

A CORPORATION
 

DOCKET NO. 9327 

(REDACTED) 
CERTIFICATE OF SERVICE
 

I hereby certify that on October 1, 2009, I filed via hand delivery an original and 

two copies of 
 the foregoing Response to Respondent's Second Motion to Reopen the 

Hearng Record with: 

Donald S. Clark, Secretary 

Office of the Secretar 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

I hereby certify that on October 1,2009, I served via electronic mail and hand 

deliver two copies ofthe foregoing Response to Respondent's Second Motion to
 

Reopen the Hearng Record with: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvana Avenue, NW, H-I06 

Washington, DC 20580 

oal; (áftc. gov 

I hereby certify that on October 1,2009, I served via electronic mail delivery and 

first class mail two copies ofthe foregoing Response to Respondent's Second Motion to 

Reopen the Hearng Record with: 

Wiliam L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiliamkard~parkerpoe.com 

ericwelsh(áparkerpoe.com