ORIGINAL 

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UNITED STATES OF AMERICA ~\ SEP -- 8 2009
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FEDERAL TRADE COMMISSION , ""', 54. '-i~ j'/


OFFICE OF ADMINISTRATIV LAW JUGES ~~-~"¡"o='.~~~~~!::~~:(~~r,~~~~_$~" .,ý-

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In the Matter of
 )
 

) Docket No. 9327
 

POL YPORE INTERNATIONAL, INC.,
 )
 

Respondent.
 ) 

) 

ORDER DENYING RESPONDENT'S MOTION
 

TO REOPEN THE HEARNG RECORD
 

I. 

On August 20,2009, Respondent filed its motion to reopen the hearing record to rule on 

the admissibility ofPX 3016. Complaint Counsel fied its ópposition on August 24,2009. For 

the reasons set forth below, Respondent's motion is DENIED. 

II. 

On the sixth day of 
 tral, Complaint Counsel moved to offer PX 3016 into evidence 

during the redirect examination of Robert Toth. Transcript of 
 Testimony before the ALJ ("Tr."), 

1647. Respondent's counsel objected to the admissibilty ofPX 3016 on the ground that the 

document had been presented to Respondent's counsel only earlier that day. Tr., 1647. 

Complaint Counsel requested that the ruling on admissibility ofPX 3016 be deferred until 

Respondent's counsel had the opportnity to review it. Tr., 1647. The paries were directed to 

discuss the exhibit and to inform the Administrative Law Judge later if 
 Respondent's counsel 

continued to object to the admissibility ofPX 3016. Tr., 1647. 

Respondent states that this discussion occurred near the conclusion of Mr. Toth's 

testimony at the end of the day, that another witness was called to the stand the next morning, 

and that the matter of admissibilty ofPX 3016 did not come up again. Respondent further states 

that Complaint Counsel never withdrew its motion to offer PX 3016 into evidence and that 

Respondent's counsel did not realize that the admissibility ofPX 3016 remained unsettled. 

Respondent also states that it has no objection to PX 3016 and withdraws its objection based on 

Complaint Counsel's failure to provide timely notice of its use. 

Complaint Counsel argues that Respondent has not shown good cause for reopening the 

record, as required by Rule 3.51(e), and that the motion should therefore be denied. Complaint 

Counsel states that it demonstrated to Respondent that PX 3016 was not in evidence though its 

final set of exhibits, which did not include PX 3016. Complaint Counsel argues that 

Respondent's failure to recognize that PX 3016 was not admitted until long after the close of the 

hearing record does not warant reopening the record. Complaint Counsel urges that admitting 
PX 3016 at this late date would prejudice Complaint Counsel, who did not have the opportnity 

to rely on the exhibit in its post-trial briefs and proposed findings of fact. 

III. 

Under the Commission's Rules of Practice governing this adjudication, Rule 3.51(e)(1) 

states: "At any time prior to the filing of his initial decision, an Administrative Law Judge may 

reopen the proceeding for the reception of further evidence." 16 C.F.R. § 3.51(e). The FTC 

amended Parts 3 and 4 of its Rules of Practice on January 13, 2009. Under the revised rules, 

Rule 3.5l(e)(1) states: "At any time from the close of the hearng record pursuant to § 3.44(c) 

until the filing of 
 his or her initial decision, an Administrative Law Judge may reopen the 

proceeding for the reception of 
 further evidence for good cause shown." 16 C.F.R. § 3.51(e). 

In the interim final rules, the FTC stated that the rules that were in effect before January 

13, 2009 would govern all then pending Commission adjudicatory proceedings. Accordingly, 

Rule 3.51(e), as applicable to this proceeding, does not require Respondent to show good cause 

for reopening the proceeding for the reception of further evidence. 

Although good cause need not be shown, Respondent has not demonstrated a sufficient 

basis to reopen the record at this point in the proceedings. To admit PX 3016 at this late date, 

after the completion of all post trial briefs, proposed findings of facts, replies thereto, and closing 

arguments, would be prejudicial, as Complaint Counsel was not able to rely on or respond to the 

exhibit. Accordingly, Respondent's motion is DENIED. 

J)M~


D. Michae Cliappel 

Chief Administrative Law Judge 

Date: September 8, 2009
 

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