ORlGINAL
 

UNlF-E-Ð-S'f A TES OF AMERICA ',..,.. ".­ BEFORE THE FEDERAL TRAE COMMISSION 

. ;¿~1j5:J:3 

;:y 2 5 20D9 

In the Matter of ) Docket No. 9327 ,j'11~75 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC 

) 

) 

) 

) 

RESPONDENT'S SECOND MOTION TO REOPEN THE HEARG RECORD 

INTRODUCTION 

Pursuant to 16 C.F.R. § 3 .51 (e), Respondent, Polypore International, Inc. ("Polypore") 

submits this motion to reopen the hearing record to permit the introduction of new and additional 

evidence at a half day hearing before this Court. 

Waiting until after the record was closed, ( 

being a monopolist, ( )1. In a market where DaramIc is accused of 


) - having already lost at the end of 2008 its second largest
 

customer. Combined, DaramIc's l l2 accounted for l60%l of its North 

American PE business. Moreover, if Daramic is able ( 

i The instant motion contains Confidential Material pursuant to the Protective Order Governing Discovery Material 

entered on October 23, 2008. Respondent has designated such Confidential Material with "( )" to protect Confidential Material 

from disclosure on the public record. In the event Respondent's instant motion is granted, Respondent and/or appropriate 3rd
 

paries intend to move for in camera treatment of such confidential material and/or underlying evidence in support thereof. 

2 The instant motion contains In Camera Material pursuant to the orders of AU Chappell dated July 9, 2009, July 10, 

2009, and August 11, 2009. Respondent has designated such In Camera Material with "f )" to indicate the in camera status of 

such evidence and to protect such In Camera Material from disclosure on the public record. 

PPAB 1610671vl 
). Both of these new
 

facts - (
 

). 

Respondent respectfully submits that the Court should grant this motion and reopen the record to 

receive this significant new evidence. 

ARGUMENT 

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

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

reopen the proceeding for the reception of further evidence." 16 C.F .R. 3 .51 (e). As this Court 

has previously held, a good cause showing is not required for this Court to reopen the record. In 

the Matter of Polypore InternationaL. Inc., Docket No. 9327, Order, September 8, 2009. 

Nevertheless, as set forth herein, Respondent believes that good cause exists for the Court to 

grant this motion. 

A. Good Cause Exists to Reopen the Record
 

Following the hearing in this matter, (
 

) : 

Date Delivery Date Date 

PO# Issued Quantity/feet 8QM Date Received Confirmed 

( J 

( J 

( J 

( J 

( J 

( J 

2 

PPAB 1610671vl 
( J 

( J 

( J 

( J 

( J 

( J 

( J 

( J 

( J 

( J 

( J 

( J 

Total 

)'S post-hearing conduct is relevant for at least four reasons. First, ( 

). 

Second, ( 

). If so, and in light of (
 

3 ). Having lost its largest 

customer, Johnson Controls, Inc., and ( ), and given the current economic
 

environment, ( 

).4 

3 (
 

). 

4 The recession also continues to adversely impact DaramIc's business. Demand for Daramc's products with North 

America customers has declined even more since the close ofthe hearing. 

3 

PPAB 1610671vl 
Third, evidence was presented to this Court regarding l 

l. See Respondent Findings of
 

Fact 598, 963-972. The fact that ( 

). Indeed, Anpei, at a booth at the 13th Asian
 

Battery Conference in Macau China in September 2009, represented in a graphic that it sells its 

products, which includes PE separators, to North America. See picture taken at Anpei's booth 

attached hereto at Tab A. This Court is entitled to this evidence to determine the issues before it. 

Finally, ( 

), facts which starkly contradict
 

Complaint Counsel's oft-repeated assertions of 
 market power.

the Record is Reopened 

While Complaint Counsel has argued in the past, and no doubt wil do so again here, that 

reopening the record is prejudicial because briefing and post trial findings have been completed, 

Complaint Counsel's argument would faiL. Whatever inconvenience is caused because the 

briefing and submission of findings has been completed cannot constitute prejudice since Rule 

B. There is No Prejudice if 


3.51 permits the opening of the record "any time prior to the filing of his initial decision," not 

any time "prior to completion of briefing" or "prior to completion of the findings of fact." As 

the Rule permits opening the record even after the briefing and finding are done, any 

inconvenience associated with such event cannot be "prejudice" as it is expressly permitted by 

the rule. This is especially true where, as here, the new and additional evidence sought to be 

4 

PPAB 1610671vl 
introduced arose after the hearing and briefing was complete. In any event, even if this were 

"prejudice," it is shared equally by both sides and can be addressed by permitting limited 

briefing and findings on the issues. Respondent submits that failure to consider this important 

new evidence would be far more prejudicial to Respondent and would deprive this Court of 

critical evidence relevant to its decision. 

C. Respondent's Proffer
 

In support of its motion, Respondent submits the following proffer of evidence. 

Through testimony ofRespondents witnesses and a witness for ( ), Daramic wil
 

show: 

1. After the close ofthe record, (
 

). 

2. 

). 

5 

PPAB 1610671vl 
3. 

).5 

4. 

). 

5. 

).6 

CONCLUSION 

For the foregoing reasons, Respondent respectfully requests that this Court grant its 

motion and reopen the record to permit evidence to be introduced regarding the foregoing 

subjects at a half-day day hearing on this matter. 

5 i ). 

6 Respondent also submits that the foregoing proffered facts are strong evidence supporting that entr can occur in less 

than 2 years since, i 

). 

Moreover, Anpei has in September 2009 represented that it is a global company, available to meet the needs of customers around 

the world, and specifically, North America. 

6 

PPAB 1610671vl 
Dated: September 25,2009 Respectfully Submitted, 

L2 . I.- fj -A. 

Willam L. Rikard, Jr. 

Eric D . Welsh 

PARKER POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

wiliamrikard(iparkerpoe.com 

ericwelsh(iparkerpoe.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(iparkerpoe.com 

Attorneys for Respondent 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of ) Docket No. 9327 

) 

) 

) 

Polypore International, Inc. ) 

a corporation ) PUBLIC DOCUMENT 

) 

STATEMENT PURSUANT TO SCHEDULING ORDER 

I, Eric D. Welsh, Esq., on behalf of Parker Poe Adams & Bernstein LLP ("Parker Poe") 

as counsel for Polypore International, Inc. ("Polypore"), hereby represent that Parker Poe has 

conferred with Complaint Counsel in an effort in good faith to resolve by agreement the issues 

raised by Respondent's Second Motion To Reopen The Hearing Record, and has been unable to 

reach such an agreement. 

Dated: September 25,2009 Respectfully Submitted, 

(;-: (/~
 Eric D. Welsh (
 

PARKR POE ADAMS & BERNSTEIN, LLP
 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

ericwelshi§parkerpoe.com 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of ) Docket No. 9327 

) 

) 

) 

Polypore International, Inc. ) 

a corporation ) PUBLIC DOCUMENT 

) 

PROPOSED ORDER GRANTING RESPONDENT'S SECOND MOTION 

TO REOPEN THE HEARING RECORD 

IT is ORDERED THAT, upon due consideration, Respondent Polypore International, 

Inc.'s Second Motion to Reopen the Hearing Record is hereby GRANTED and a further hearing 

in this matter wil had on 2009 for purposes of receiving evidence concerning 

matters stated in Respondent's Second Motion to Reopen the Record. 

D. Michael Chappell 

Administrative Law Judge 

Date: 
CERTIFICATE OF SERVICE 

I hereby certify that on September 25, 2009, I caused to be fied via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Respondent's Second 

Motion to Reopen the Hearing Record, and that the electronic copy is a true and correct copy of 

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

Donald S. Clark, Secretary 

Offce of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary(iftc.gov 

I hereby certify that on September 25,2009, I caused to be served one copy via electronic 

mail delivery and two copies via Federal Express delivery of 
 the foregoing Respondent's Second

Motion to Reopen the Hearing Record upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj (?ftc. gov 

I hereby certify that on September 25, 2009, I caused to be served via U.S. Mail and 

electronic mail delivery a copy of the foregoing Respondent's Second Motion to Reopen the 

Hearing Record 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 

rrobertson(iftc.gov sdahm(iftc. gov 

B¿~we~.#

Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 334-4706 
II
 

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