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UNTED STATES OF AMERICA .;Jft t: ó 3 ; L..;.:.j
 FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUGES I:T'-f 1~1

) 

In the Matter of ) 

) 

Polypore International, Inc., ) Docket No. 9327 

a corporation, ) (Public Version)
 

)
 

Respondent. )
 

) 

) 

INTERVENOR HOLLINGSWORTH & VOSE COMPANY'S 

PROPOSED FINDNGS OF FACT 

Counsel for Hollngsworth & V ose Company: 

Kathryn K. Conde 

Jonathan D. Persky 

NUTTER MCCLENNEN & FISH LLP 

155 Seaport Boulevard 

World Trade Center West 

Boston, MA 02210 

Tel: (617) 439-2420 

Fax: (617) 310-9420 

E-mail: kconde(jnutter.com 

jpersky(jnutter. com 
i. EXHBIT AND WITNESS INDICES
 

Hollngsworth & Vose Company ("H&V") was not named a party to this proceeding 

and, therefore, did not have discovery rights or the right to offer documentary or testimonial 

evidence at the hearing or otherwise to participate in the hearing. H&V relied on publicly 

available documents and deposition transcripts of H& V witnesses in preparing these Proposed 

Findings of Fact. H&V did not otherwise have access to evidence in this case. 

II. HOLLINGSWORTH & VOSE COMPANY'S AGM SEP ARA TORS
 

1. H& V makes specialty, industrial and technical papers and nonwovens for a 

variety of applications. H&V manufactures and sells, among other products, an absorptive 

glass mat (" AGM") battery separator for use in valve-regulated lead acid ("VRLA") batteries 

in a variety of applications. (PX0925 at 3-5 (Porter Dep. at 15-21, in camera)). 

2. Unlike polyethylene ("PE") battery separators made by DaramIc, H&V's AGM
 

battery separators are not intended for use in flooded lead acid batteries, and are used instead 

in VRLA batteries. (CCFOF' 18; PX0925 at 5 (Porter Dep. at 21-23, in camera)). 

Daramic's flooded battery customers cannot substitute H&V's AGM battery separators for 

Daramic's PE battery separators, and H&V's VRLA battery customers cannot substitute 

DaramIc's PE battery separator for H&V's AGM product. (PX0925 at 7-8 (Porter Dep. at 28­

31, in camera)). Complaint Counsel maintains that AGM battery separators do not compete 

with Daramic's PE battery separators in the same markets. (see CC Post-Trial Br. at 25 & 

n.16). 

III. THE CROSS AGENCY AGREEMENT
 

3. In March 2001, DaramIc and H&V entered into the Cross Agency Agreement.
 

(PX0094 (hereinafter "Agreement")). The Agreement provided for f_
 

at 14-15, 16 (Cullen Dep. at 53-56,60-61, in camera); PX0925 at 16, 17, 24-25, 31-32 
(Porter Dep. at 61,64-65,94-97, 126-28, in camera); Roe, Tr. 1746). 

4. 

_l (PX0917 at 77 (Cullen Dep. at 321-23, in camera)).
 

5. H&V expends time and effort in developing and maintaining customer 

relationships and its goodwil with those customers. (PX0917 at 77 (Cullen Dep. at 320-22, in 

camera)). H&V engineers work closely with customers to solve manufacturing issues, and 

customers rely on H&V's technical manufacturing expertise. f 

l 

(PX0917 at 77 (Cullen Dep. at 320-23, in camera)). 

6. In order to permit the parties to exchange confidential information about their
 

and 

pricing, the Agreement provided that f 

sales and distribution forces, customers and confidential technical information, know-how 


L (Agreement § 4(a-b); PX0917 at 12, 14­

15, 16, 18,42 (Cullen Dep. at 48,53-56,60-63,68-70, 177-78, in camera); PX0925 at 17-18,
 

31 (Porter Dep. at 65-66, 126-31, in camera)).
 

7. Section 4 of the Cross Agency Agreement states in relevant part:
 
(Agreement § 4(a-b)). 

8. Paragraph 4(a) of the Cross Agency Agreement f
 

L Paragraph 4(b) f_
 

9. During the course of H&V's and Daramic's business relationship under the
 

Cross Agency Agreement, f 

L (PX0917 at 024-025 (Cullen Dep. at 99-102, in 

camera); PX0925 at 024 (Porter Dep. at 94-96, in camera)). Daramic and H&V f_ 

(PX0917 at 14-15, 16, 18, 76, 77-78 (Cullen Dep. at 54-56, 60-63, 

68-70,317-18,321-24)). 

1 O. During the term of the Cross Agency Agreement, DaramIc f_
 

L As a result of Daramic' s sales activities 

on behalf of H& V, Daramic f 

L (PX0917 at 075 (Cullen Dep. at 313-14, in 

camera)). 

11. In the course of making sales calls on behalf of H& V, Daramic representatives 

f L (PX0917 at 

077-078 (Cullen Dep. at 322-24, in camera)). H&V also disclosed f 
L (PX0917 at 077 (Cullen Dep. at 322-23, in 

camera)). f 

L (PX0917 at 077-078 (Cullen Dep. 

at 321-23, in camera)). 

12. The Cross Agency Agreement f
 

L (PXOI58, in camera).l 

iv. COMPLAINT COUNSEL'S PROPOSED REMEDY AND EFFECTS TO H&V
 

13. Complaint Counsel seeks an order requiring Daramic to modify the Cross
 

Agency Agreement by declaring Sections 4(a) and (b) void and by ordering DaramIc to refrain 

from "implementing or enforcing" either sub-sections 4(a) or 4(b). The requested relief 

requires the Respondent to do as follows: 

1. Within fifteen (15) days after the date this Order becomes final:
 

(a) modif and amend the H& V Agreement in writing to terminate and declare 

null and void, and (b) cease and desist from, directly or indirectly, or through 

any corporate or other device, implementing or enforcing, the covenant not to 

compete setforth in Section 4 of 
 the H&V Agreement, and all related terms and 

definitions, as that covenant applies to Nort America and to actual and potential 

customers within North America. 

2. Within thirt (30) days after the date this Order becomes final,
 

fie with the Commission the written amendment to the H& V Agreement 

("Amendment") that complies with the requirements of Paragraph VLA.l ¡sic) . 

(CC Proposed Order VilLA, at 26-27 (emphasis added)). 

14. H&V has a valuable property right arising under Section 4(a) of the Cross 

1 Aside from deposition testimony of H&V employees and exhibits taken from H&V's document 

production, H&V has not been provided access to in camera exhibits. The citation to PXOl58 is taken from 

Complaint Counsel's Exhibit List (PXOOOi at 0(4), which is described as "Cross Agency Agreement - Renewal 

and Daramic Correspondence." H&V does not know what is meant by "Daramic Corres ondence" and 

understands the Renewal to the Cross A enc A reement to be 
Agency Agreement to f 

L (Agreement § 4(a), PXOI58). 

15. If the requested relief 
 were to be awarded with respect to H&V's rights under

Section 4(a), Daramic would be entitled to f 

L within fifteen days of the Commission's 

final order. (Agreement § 4(a); CC Proposed Order VIILA(1)). 

Dated: September 30,2009 Respectfully submitted, 

HOLLINGSWORTH & VOSE COMPANY 

By its attorneys, 

~j) b¡


~thryn K. Conde
 

Jonathan D. Persky 

Nutter McClennen & Fish LLP 

155 Seaport Boulevard 

World Trade Center West 

Boston, MA 02210 

Tel: (617) 439-2420 

Fax: (617) 310-9420 

E-mail: kconde(jnutter.com 

jpersky(jnutter. com 
CERTIFICATE OF SERVICE 

I hereby certify that on September 30, 2009, I filed via overnight delivery and 

electronic mail delivery an original and two copies of the foregoing Intervenor Hollngsworth 

& Vose Company's Proposed Findings of Fact (Public Version) 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 

Office of the Secretary 

Federal Trade Commssion 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary (lftc. gov 

I hereby certify that on September 30, 2009, I filed via overnight delivery and 

electronic mail delivery two copies of the foregoing Intervenor Hollngsworth & V ose 

Company's Proposed Findings of Fact (Public Version) with: 

The Honorable D. Michael Chappell
 

Administrative Law Judge 

Federal Trade Commssion 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj(lftc. gov 

I hereby certify that on September 30, 2009, I caused to be served via electronic 

delivery and first -class mail delivery a copy of the foregoing Intervenor Hollingsworth & V ose 

Company's Proposed Findings of Fact (Public Version) on: 

Wiliam L. Rickard, Jr., Esq. 

Eric D . Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiliamrickard(lparkerpoe. com 

ericwelsh(lparkerpoe. com 

J. Robert Robertson, Esq. 

Steven Dah, Esq. 

Bureau of Competition 

Federal Trade Commssion 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

rrobertson(lftc. gov 

sdahm(lftc.gov

~athan D. Persky
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