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bt¡'ir¡1~ UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRAE COMMISSION 

In the Matter of ) PUBLIC

) 

Polypore International, Inc., ) Docket No. 9327 

a corporation. ) 

) 

COMPLAINT COUNSEL'S REPLY BRIEF TO INTERVENOR
 

HOLLINGSWORTH & VOSE COMPANY'S BRIEF ON REMEDIES
 

AFFECTING ITS CONTRACTUAL RIGHTS 

RICHARD A. FEINSTEIN 

Director 

NORMAN ARSTRONG 

Acting Deputy Director 

Bureau of Competition 

CATHARI MOSCATELLI
 

Assistant Director 

MORRS BLOOM 

Deputy Assistant Director 

Bureau of Competition 

Mergers II 

1. ROBERT ROBERTSON 

STEVEN DAHM 

BENJAMIN GRIS 

JOEL CHRISTIE 

STEPHEN ANTONIO 

CHRISTIAN WOOLLEY 

PRIY A VISW ANATH 

Federal Trade Commission 

Bureau of Competition 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

Telephone: (202) 326-2008 

Fax: (202) 326-2884 

Counsel Supporting the Complaint 

October 13,2009 
I. INTRODUCTION
 

Intervenor Hollingsworth & V ose Company ("H& V" or "Intervenor") was a par with
 

Daramic to an unlawful agreement in restraint of trade. That agreement, known as the Cross 

Agency Agreement, .L (PX0158, in camera).l Fearing future 

competition from Daramic in the manufacture and sale of AGM battery separators, H& V now 

requests protection. It asks this Cour to constrain its relief to Section 4(b) of the Agreement, 

which 

_l. For the reasons explained below, H&V's request should be denied.
 

II. CROSS AGENCY AGREEMENT
 

All joint sales and promotional activities between Daramic and H&V have ceased. H&V 

is not petitioning this Court to limit the remedy with respect to the Agreement so that the 

company can continue a productive, ongoing relationship with Daramic that benefits their 

customers. Rather, H&V seeks to preserve Section 4(a) of 
 the Cross Agency Agreement, which 

l. (CCFOF iì 1189; H&V FOF iì 7). As the facts surounding the formation of 

the Agreement make clear, however, 

.l (CCFOF 1180-1182).
 

i This central fact is undisputed. See H&V FOF i¡l2; Respondent's Responses to Complaint Counsel's Proposed 

Findings of 
 Fact (hereinafter, "RROF") i¡ll89. 

2
 
III. THE PROPOSED RELIEF DOES NOT VIOLATE H&V'S RIGHT TO
 

PROCEDURAL DUE PROCESS 

A. The Governent Provided Proper Notice to H&V Concerning its 

Contractual Rights in this Litigation 

Intervenor's claim that it was deprived of 
 notice that its contractual rights were at stake in 

this litigation lacks merit. As the Court previously noted, "(i)t cannot reasonably be disputed 

that H&V was aware ofthe allegations of 
 the Complaint well before filing (its) motion to 

intervene." (See Order on Motion for Leave to Intervene by Non-Par H&V, dated September 

23,2009 (the "Order on Intervention by H&V", at 2). H&V had more than adequate notice that 

its contractual rights under the Cross Agency Agreement were at issue in this matter, as 

demonstrated by the clear and plain language of the Complaint itself. (See Complaint at Section 

xiv, specifically proposing, among other among other remedies, "an order that requires Daramic
 

to cease and desist from the conduct, agreements, and attempts to enter agreements alleged in the 

Complaint. . ."; see also iìiì 41 and 47 specifically alleging that the Agreement is an unlawful 

agreement in restraint of 
 trade, and iì 38.a. specifically alleging that Daramic's conduct 

eliminated potential competition with H&V). Throughout discovery in this matter, H&V and its 

counsel were informed repeatedly that Complaint Counsel considered 

B. H&V Had a Meaningful Opportity to Be Heard 

Despite its awareness, H& V chose not to intervene while this matter was in active 

litigation. It had a full and fair opportity to avail itself ofthe benefits and burdens of "the 

discovery (and) trial rights of a part," but it decided not to participate. Intervenor 

Hollingsworth & V ose Company's Brief on Remedies Affecting its Contractual Rights, 

3 
September 30,2009. H&V simply filed three motions for in camera treatmene and on May 12, 

2009, filed a motion to quash the subpoenas ad testifcandum served on H&V employees, Robert 

Cullen and Kevin Porter. In light of the advanced stage of 
 these proceedings, and the ability of 

the Cour to protect H&V's legitimate interests without artificially limiting its remedial 

authority, Complaint Counsel respectfully requests that the Court reject H&V's proposed 

modification. 

iv. COMPLAINT COUNSEL'S PROPOSED REMEDY is PROPERLY TAILORED
 

TO REDRESS THE ALLEGED WRONGDOING BY RESPONDENT 

Any remedy to address Daramic's anti 
 competitive conduct must, by definition, involve 

its rights and obligations under the Agreement - especially those in Sections 4(a) and (b). 

Therefore, the major premise ofH&V's procedural due process argument - that it possesses "a 

constitutionally protected propert interest" in the enforcement of 

J the Agreement - is invalid. Moreover, such a premise has no 

foundation in antitrust jurisprudence. Businesses do not have legitimate interests in protection 

from competition at large? Cf Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 

(1977) (competitors cannot seek damages for lost profits resulting from reduced competition); 

Heatron, Inc. v. Shackelford, 898 F.Supp. 1491, 1500 (D. Kan., 1995) (in deciding whether to 

enforce covenant not to compete, cour noted the desire to prevent "ordinary competition" was 

not a protected interest). Protection from market forces, especially when obtained through 

private agreement, is antithetical to basic antitrust policy. See, e.g., Nynex Corp. v. Discon, Inc., 

2 H&V submitted motions for in camera treatment on April 
 9, 2009; May 28,2009; and June 16,2009. 3 Statutory immunities and exemptions from the antitrst laws are not at issue here, and in any 

event, they are the exception and not the rule. See, e.g., Statement of Alden F. Abbott before the 

Antitrst Modernization Commission on Statutory Immunities and Exemptions, Dec. 1,2005,
 

located at htt://ww.ftc.gov/os/2005/12/051202statutorv.pdf. 

4
 
525 U.S. 128, 134 (1998); Palmer v. BRG of 
 Georgia, Inc., 498 U.S. 46,49-50 (1990); 

Blackburn v. Sweeney, 53 F.3d 825,827 (7th Cir. 1995). Cf Otter Tail Power Co. v. United 

States, 410 U.S. 366, 377-80 (1977) (economic self-interest of defendant in enforcement of 

anticompetitive contract terms not cognizable under Sherman Act Sections 1 and 2). 

Complaint Counsel does not seek a remedy that requires or allows the disclosure by 

Daramic or H&V of each other's confidential business information. H&V has a legitimate 

business interest in the protection of its intellectual propert rights and other proprietary 

company information that it may have shared with Daramic while the Agreement was in effect. 

(See CCFOF iì 1195, noting that to the extent the parties exchanged any confidential information, 

l; see also Response to H& V 

FOF iì 13, showing that 

_l.) Rescission or limitation of 
 the non-compete provisions in Sections 4(a) and 4(b)

of the Agreement can occur while L Such relief would be "narrowly 

tailored and reasonably related to the violation of law found to exist," which in this case results 

from Daramic' s reciprocal agreement with H& V 

l. In re Kentucky Household Goods Carriers Ass 'n, 

139 FTC 404,506 (2004) (Initial Decision). This Court has the discretion and the ability to 

accommodate confidentiality protection in its Order. 

v. CONCLUSION
 

For the foregoing reasons and the reasons outlined in Complaint Counsel's Post-Trial 

Brief, the Cour should adopt section VIII of Complaint Counsel's Proposed Order. 

5 
Dated: October 13,2009 Respectfully submitted,
 

~ ~:jy.-~
 J. Ro ert Robertson 

Complaint Counsel
 

Bureau of Competition
 

Federal Trade Commission
 

600 Pennsylvania Ave, NW (H-374)
 

Washington, DC 20580
 

Telephone: (202) 326-2008
 

Facsimile: (202) 326-2214
 

6
 
CERTIFICATE OF SERVICE
 

I hereby certify that on October 13,2009, I filed via hand and electronic mail delivery an original 

and two copies of the foregoing public version of Complaint Counsel's Reply Brief to Intervenor 

Hollingsworth & V ose Company's Brief on Remedies Affecting its Contractual Right with: 

Donald S. Clark, Secretary 

Office of the Secretar 

Federal Trade Commission 

600 Pennsylvana Avenue, NW, Rm. H-135 

Washington, DC 20580 

I hereby certify that on October 13,2009, I filed via hand delivery four copies of the 

foregoing public version of Complaint Counsel's Reply Brief To Intervenor Hollingsworth & 

V ose Company's Brief on Remedies Affecting Its Contractual Rights with: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oa1i gov (lftc. 

I hereby certify that on October 13, 2009, I filed via electronic mail delivery a copy of the 

foregoing public version of Complaint Counsel's Reply Brief 
 To Intervenor Hollingsworth & 

V ose Company's Brief on Remedies Affecting Its Contractual Rights with: 

Wiliam L. Rikard, Jr., Esq. Kathryn K. Conde 

Eric D. Welsh, Esq. Jonathan D. Persky 

Parker, Poe, Adams & Bernstein, LLP Nutter McC1ennen & Fish LLP 

401 South Tryon Street, Suite 3000 155 Seaport Boulevard 

Charlotte, North Carolina 28202 Wodd Trade Center West 

wiliarkard(aparkerpoe.com Boston, MA 02210 

ericwelsh(lparkerpoe. com kconde(lnutter. com 

ipersky(anutter. com 

B . 

in aD. Cunnngh 

Federal Trade Commi 

600 Pennsylvana Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2638 

lcunningham(lftc. gov