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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUGES
 

) 

In the Matter of ) 

) Docket No. 9327 

POL YlORE INTERNATIONAL, INC., ) 

Respondent. ) 

) 

ORDER ON RESPONDENT'S MOTION FOR OFFICIAL NOTICE 

I. 

On Januar 21,2010, Respondent submitted a Motion for Official Notice of 

Recent Acquisition of 
 Douglas Battery by EnerSys ("Motion"). Complaint Counsel 

submitted a response on Januar 22,2010 ("Response"). Having fully considered 

Respondent's Motion and Complaint Counsel's Response, and as more fully set forth 

below, the Motion.is GRANTED. 

II. 

Respondent moves for official notice "of a recent acquisition by EnerSys as 

announced in a fiing madé by EnerSys" with the Securities and Exchange Commission 

("SEC"). Motion at 1. Specifically, Respondent states that "(o)n January 14,2010, 

EnerSys filed a Form 8-K with the SEC, attaching a press release discussing EnerSys' 

recent purchase of the industral battery business from Douglas Battery . . . . A copy of 

EnerSys' Form 8-K is attached hereto as Exhibit A." ¡d. Respondent asserts that the 

requested official notice is permitted under Commission Rule 3.43(d), Motion at 1, and 

that "EnerSys' purchase of 
 Douglas Battery's industrial battery business, as announced 

on January 14, 2010, is not subject to reasonable dispute" because the accuracy of 

EnerSys' SEC filings canot reasonably be questioned. Motion at 2. Respondent further 

argues that the referenced acquisition is relevant to consolidation in the battery 

manufacturing industry and "EnerSys' size and position therein as a power buyer." ¡d. 

Complaint Counsel does not dispute that the SEC filing has been made. 

Complaint Counsel does, however, object to Respondent's inferences and arguments 

based upon the filing. Response at 1. According to Complaint Counsel, such inferences 

and arguments exceed the scope of official notice, and to the extent Respondent's Motion 

seeks official notice of such inferences and arguents, Complaint Counsel requests that 

the Motion be denied. Response at 2. 
III. 

A. General Principles 

As a general rule, "(tJhe transcript of 
 testimony and exhibits, together with all 

papers and requests fied in the proceeding, constitutes the exclusive record for decision" 

in an administrative adjudication. 5 U.S.c. § 556(e); see also Commission Rule 

3.51(c)(1) ("An initial decision shall be based on a consideration ofthe whole record 

relevant to the issues decided. . ."), 16 C.F.R. § 3.51(c)(l). Commission Rule 3.43(d) 

permits consideration of a fact outside the record in limited circumstances, stating: 

"When any decision of an Administrative Law Judge or of 
 the Commission rests, in
 

whole or in part, upon the taking of official notice of a material fact not appearing in
 

evidence of record, opportnity to disprove such noticed fact shall be granted any pary
 

making timely 
 motion therefor." 16 C.F.R. § 3.43(d); see also 5 U.S.C. § 556(e) ("When 

an agency decision rests on official notice of a material fact not appearing in the evidence 

in the record, a party is entitled, on timely request, to an opportity to show the 

contrary. "). 

Official notice and its "close parallel," judicial notice, "permit a court or agency 

to take notice of an adjudicative fact 'not subject to reasonable dispute in that it is either 

(1) generally known within the terrtorial jurisdiction of the trial court or (2) capable of 

accurate and ready determination by resort to sources whose accuracy canot reasonably 

be questioned.'" de la Llana-Castellon v. INS, 16 F.3d 1093, 1096 (lOth Cir. 1994)
 

(quoting Fed. R. Evid. 201(b)). 

B. Official Notice of Public Documents 

Applying the foregoing principles, the Commission has held that. "(mJattersof 

official notice include those contained in public records, such as judicial decisions, 

statutes, regulations, and 'records and reports of administrative bodies.'" In re S. C. State 

Bd. a/Dentistry, No. 9311,2004 FTC LEXIS 289, at *18 & n.4 (July 28,2004), quoting 

in part United States v. Ritchie, 342 F.3d 903,909 (9th Cir. 2003) (taking official notice 

of statutes, regulations, Board minutes, and a press release issued by Office of the 

Governor, in evaluating motion to dismiss). Accordingly, the Commission has taken 

official notice ofSEC filings, In re Chicago Bridge & 
 Iron Co. N v., No. 9300,2005 

FTC LEXIS 70, at *40 (May 10,2005) (taking official notice of SEC form 10-K filing to 

find that certain entities had been sold), publicly filed consent orders, In re Telebrands, 

No. 9313, 2005 FTC LEXIS 178, at *99 (Sept. 19 2005), and u.S. Census data. In re 

Avnet, Inc., No. 8775, 1973 FTC LEXIS 125, at *132 (Feb. 16, 1973). Federal court 

cases have also taken 
 judicial notice ofSEC filings. Gran v. Stafford, 226 F.3d 275, 289 

"properly-authenticated 

public disclosure documents filed with the SEC" is permissible because such documents 

are "required by law to be filed with the SEC and no serious questions as to their 

authenticity can exist." 226 F.3d at 289, citing Bryant v. Avado Brands, Inc., 187 F.3d 

1271, 1276 (lIth Cir. 1999); Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 

(5th Cir. 1996); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991). 

(3d Cir. 2000). In Gran, the court reasoned that official notice of 


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In the instant case, Complaint Counsel does not dispute the existence of the Form 

8-K filing that is the subject ofRespondents Motion. Accordingly, pursuant to the 

foregoing authorities, official notice wil be taken that a Form 8-K filing was made by 

EnerSys with the SEC anouncing the purchase of certain assets and assumption of 

certain liabilities of Douglas Battery. Official notice wil not be taken, however, of the 

inferences and arguents Respondent makes in connection with the SEC filing. The law 

is clear that official notice is not an appropriate vehicle to draw inferences or determine 

arguments. In re Rambus, Inc., No. 9302,2003 FTC LEXIS 135, at *5 (Aug. 27, 2003). 

As the court explained in Yorkv. AT&T, 95 F.3d 948,958 (10th Cir. 1996) regarding 

judicial notice under Federal Rule of 
 Evidence 201: "Judicial notice is appropriate where 

a matter is 'verifiable with certainty.' . .. It replaces the evidentiary procedure that 

would otherwise be necessar to establish 'adjudicative facts' that are generally known or 

'capable of accurate and ready determination' by resort to reliable sources." See also 

Commentar to Fed. R. Evid. 201 ("When a Trial Judge draws inferences from a wrting, 

the Judge is not taking judicial notice; she is engaging in factfinding and Rule 201 does 

not apply."). Therefore, official notice regarding the Form 8-K wil specifically exclude 

all inferences and arguents Respondent has made in reference to the 8- K fiing. 

iv. 

Having fully considered Respondent's Motion for Official Notice and Complaint 

Counsel's Response, and for all the foregoing reasons, it is hereby ORDERED: 

Official notice is hereby taken that a Form 8-K Current Report was fied by 

EnerSys with the SEC, announcing: "On January 14,2010, EnerSys issued a press release 

anouncing the purchase of certain assets and assumption of certain liabilities, of the 

Douglas Battery Manufacturing Company." Respondent's inferences and arguments 

made in reference to the 8-K filing are excluded from the official notice taken under this 

Order. 

ORDERED: 

~Vl ~=r~ 

D. Michàel ! ell.
 

Chief Administrative Law Judge
 

Date: January 27,2010 

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