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FEDERAL TRADE COMMISSION 5~gro1 OFFICE OF ADMINISTRATIVE LAW JUGES 

In the Matter of 

POL YPORE INTERNATIONAL, INC., 

Respondent. 

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Docket No. 9327 

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ORDER ON COMPLAINT COUNSEL'S
 

MOTION FOR OFFICIA NOTICE
 

I. 

On January 26,2010, Complaint Counsel submitted a Motion for Official Notice 

of New Contract Agreement Between Polypore and Exide Technologies, Inc. ("Motion"). 

Respondent submitted a response on February 2,2010 ("Response"). Having fully
 

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

set forth below, the Motion is GRANTED. 

II. 

Complaint Counsel seeks official notice, pursuant to Commission Rule 3.43(d), 

"of the recent signing of a supply agreement between Exide Technologies Inc. and 

Respondent," as announced in an 8-K filing Respondent made with the Securties and 

Exchange Commission ("SEC") on January 19,2010. Motion at 1. A copy of the Form 

8-K is attached to Complaint Counsel's Motion as Exhibit A. 

Respondent does not dispute the fact that it filed a Form 8-K with the SEC on 

January 19, 2010, and does not object to taking official notice ofthat fact. Respondent 

requests, however, that any official notice be limited to the fact of the filing and exclude 

offcial notice of any inferences and arguments based upon the filing. Response at 1. 

III. 

A. General Principles
 

As a general rule, "(t)he transcript of 
 testimony and exhibits, together with all 

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

in an administrative adjudication. 5 D.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)(1). Commission Rule 3A3(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 par, upon the taking of official notice of a material fact not appearng in
 

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

making timely motion therefor." 16 C.F.R. § 3A3(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 pary is entitled, on timely request, to an opportnity 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 jursdiction 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 "(m)atters of 

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. of 
 Dentistry, No. 9311, 2004 FTC LEXIS 289, at *18 & nA (July 28,2004), quoting 

in par UnitedStates 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 of SEC filings, In re Chicago Bridge & Iron Co. N V., No. 9300, 2005 

FTC LEXIS 70, at *40 (May 10, 2005) (taking official notice ofSEC 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. 192005), 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 fiings. Oran 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 

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


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

, 1271, 1276 (11th 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). 

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 evidentiar procedure that 

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

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

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

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

not apply.").
 

In the instant case, Respondent does not dispute or object to taking official notice 

ofthe Form 8-K filing that is the subject of 
 Complaint Counsel's Motion. Accordingly, 

in accordance with applicable law, as set forth above, official notice wil be taken that a 

Form 8-K filing was made by Respondent with the SEC on Januar 19, 2010, announcing 

that its wholly-owned subsidiar, Daramic, LLC, entered into a new evergreen supply 

agreement with Exide Technologies. See Motion, Exhibit A, at 2. This official notice 

wil not include, and wil specifically exclude, any inferences and arguments based upon 

the SEC filing. 

iv. 

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

Respondent'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 filed by 

Respondent with the SEC anouncing: "On January 19, 2010, Polypore International, 

Inc. issued a press release announcing that its wholly-owned subsidiary, Daramic, LLC, 

entered into a new evergreen supply agreement with Exide Technologies." Inferences 

and arguments regarding the 8-K filing are excluded from the official notice taken under 

this Order. 

ORDERED: 

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D. Michael happell 

Chief Administrative Law Judge 

Date: February 16, 2010 

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