d?
 

Parker Poe 

Katie C. Miler Charleston, SC 

Associate Charlotte, NC 

Telephone: 704.335.6640 Columbia, SC 

Direct Fax: 704.335.4492 Myrtle Beach, SC 

katiemiI ler(fparkerpoe. com Raleigh, NC 

Spartanburg, SC 

March 11,2010 

x.\\l\l TRADE Co R l G I NAL VIA FEDERAL EXPRESS AND ~~~~ Ji!JVGD 11411" \. .. ~~OC/jIVI)1 TslJ0r) \.

ELECTRONIC MAIL 

MAR i ~~t ~,? \ 

Donald S. Clark, Esq. S~1.~(;1V 10 i c;r: .I Secretary seCRETARY ~". 

Office of the Secretary of the 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Room H-135 

Washington, DC 20580 

Re: In the Matter of Polypore International, Inc. 

Docket No. 9327 

Dear Secretary Clark: 

On behalf of Respondent Polypore International, Inc., I enclose for filing a paper original 

and thirteen (13) copies of Respondent's Motion for Extension of Time to File Appeal Brief in the 

above matter. Please return one stamped copy to us in the enclosed addressed, prepaid 

Federal Express envelope.
 

Upon your receipt of this letter and enclosures, I would greatly appreciate it if you would 

call me at 704-335-6640 to confirm that you have received them. 

If you have any questions, please feel free to call me. Thank you for your attention to 

this matter. 

Sincerely, 

f~C hv
 

Katie C. Miller 

KCM:psa 

Enclosures 

PPAB 1665612v1 

Parker Poe Adams & Bernstein LLP Attorneys and Counselors at Law Three Wachovia Center 401 South Tryon Street Suite 3000 Charlotte, NC 28202 

t 704.372.9000 f 704.334.4706 www.parkerpoe.com 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman ORlGlNAL 

Pamela Jones Harbour 

~5i-f\l TRADE COM Wiliam E. Kovacic lk-~ RESf(Vf' p,ir."i¡r.:IIlI'S'n " ¿~?;l' ""t'Tf v'ó J. Thomas Rosch ~"" 78Y y .t- IVIAt¡. ; ".' .'lO"'O ) 1 ¿ J 1 1

~1/3j1 K"d" -,

SECllElARY. ~ In the Matter of ) 

) 

) Docket No. 9327 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

PUBLIC DOCUMENT 

) 

) 

) 

RESPONDENT'S MOTION FOR EXTENSION OF TIME 

TO FILE APPEAL BRIEF 

Pursuant to Rule 4.3(b) of the Rules of the Federal Trade Commission, 16 C.F.R. § 

4.3(b), Respondent Polypore International, Inc. ("Polypore") respectfully requests that the 

Commission grant Respondent an additional twenty-one (21) days in which to fie its initial 

appeal brief. Respondent respectfully submits that an extension of time is appropriate due to the 

complexity of this matter. In support of its request for an extension of time, Respondent states 

the following: 

PROCEDURAL HISTORY 

1. The Complaint in this matter was issued on September 9, 2008 alleging claims of
 

ilegal acquisition under Section 7 of the Clayton Act, 15 U.S.C. § 18 and Section 5 of the 

Federal Trade Commission Act, 15 V.S.C. § 45, unfair method of competition under Section 5 of 

the FTC Act and monopolization under Section 5 of the FTC Act. Following initial motion 
practice with respect to the sufficiency of the allegations of the Complaint, Respondent answered 

the Complaint and the parties engaged in discovery. 

2. The hearing in this matter began on May 12, 2009 and concluded on June 12,
 

2009 before the Honorable D. Michael Chappell, Administrative Law Judge. The hearing 

addressed multiple claims by the FTC, including the FTC's claim that the merger violated 

Section 7 of the Clayton Act, its claim of monopolization or attempted monopolization, and its 

claim that Respondent engaged in conduct that unreasonably restrained trade. Each of the FTC's 

claims involved complex analysis and required substantial testimony and documentary evidence. 

For example, with respect to the FTC's Clayton Act claim, while Complaint Counsel attempted 

to divide the PE separator market into four distinct product markets, Respondent introduced
 

substantial evidence that there is only one relevant product market. Complaint Counsel also 

contended that there was a North American separator market, but Respondent submitted
 

substantial evidence that the relevant product market is worldwide. Complaint Counsel further 

contended that if they prevailed, the relief should include a divestiture of a former Microporous 

plant located in Austria, even though it was outside Complaint Counsel's alleged geographic 

market and had no bearing on competition in the United States. Respondent introduced
 

substantial evidence to rebut each facet of 
 Complaint Counsel's case and proposed remedy. 

3. Following the hearing, the paries filed 3,078 proposed findings of fact and
 

conclusions of law. An initial decision of the Court was originally due September 21, 2009 but 

was extended by subsequent orders. 

4. The record was reopened upon the motion of 
 Respondent on October 15, 2009 to 

receive evidence regarding Exide's conduct, and a hearing was held on November 12, 2009. 

PP AB 1646847v 1 
Following the hearing, the paries submitted an additional 278 proposed findings of fact and 

conclusions of law. 

5. Upon the Order of Judge Chappell issued on January 7, 2010, the date for filing 

the initial decision was again extended until February 22, 2010. In support of his Order 

extending the time to fie an Initial Decision, Judge Chappell noted that there were over 2,100 

exhibits, 35 witnesses, and 5,590 pages of trial transcript in the hearing, and an additional 48 

exhibits, 3 witnesses, and 305 pages of trial transcript in the supplemental hearing. 

6. On February 22, 2010, Judge Chappell issued an Initial Decision and Order, 

totaling 376 pages, which found that the merger violated Section 7 of the Clayton Act and that 

the Respondent engaged in conduct that unreasonably restrained trade in violation of Section 5 of 

the FTC Act. Judge Chappell ordered the total divestiture of all assets acquired by Respondent, 

including the Austrian facility. 

7. On March 10, 2010, Respondent filed a notice of appeaL. 

8. Respondent has asked Complaint Counsel to join in this motion. Respondent
 

proposed that Complaint Counsel should likewise be given an additional twenty-one (21) days in 

which to file their answering appeal brief. Complaint Counsel has refused to join in this motion 

for mutual extensions or to consent to Respondent's request for an extension. 

REQUEST FOR EXTENSION OF TIME 

9. Respondent is charged with fiing the initial brief in the appellate process; 

currently this brief is due April 
 9, 2010. See Rule 3.52(b). Respondent respectfully submits that 

a twenty-one (21) day extension of time for filing an appeal brief is appropriate due to the 

PPAB 1646847vl 
complexity of this matter, the length of trial, the size of the corresponding record, and the length 

of the initial decision. 

10. The appeal to the Commission involves analysis of complex legal and factual 

issues in an Initial Decision in excess of 375 pages in length. For example, in his Initial 

Decision, Judge Chappell found four (4) relevant product markets with respect to Complaint 

Counsel's Section 7 claim. Further, Judge Chappell found Section 7 violations in each of the 

four (4) product markets. Therefore, Respondent wil be appealing findings related to four (4) 

distinct markets on the Section 7 claims. In addition, the appeal wil include issues such as 

Respondent's rebuttal of Complaint Counsel's Section 7 case and extensive analysis regarding 

the remedy imposed in the Initial Decision, including the divestiture of the Austrian facility, 

which Respondent believes to be in error and far beyond the remedy necessary to restore 

competition in the markets delineated by Judge Chappell should liability be found. Furthermore, 

Respondent is appealing several specific findings contained in Judge Chappell's analysis of 

Complaint Counsel's monopolization claim, as well as certain procedural and evidentiary 

rulings. 

11. In addition to the complexity of the issues, an extension of time is justified due to
 

the length of the trial and the size of the record. As observed by Judge Chappell himself, this 

trial took over a month, involved 35 live witnesses, over 2,100 exhibits, and approximately 6,000 

pages of trial transcript. Further the parties submitted over 3,000 proposed findings of fact and 

reply findings of fact. Judge Chappell's Initial Decision is 347 pages and contains nearly 1,300 

findings of fact. Through his Initial Decision, Judge Chappell has created a new record which 

must be compared against the findings of fact submitted by Complaint Counsel and Respondent 

PPAB 1646847vl 
- a comparison of nearly 350 pages against nearly 6,000. In order for Respondent to properly
 

prepare its appeal in this matter, additional time is necessary to analyze the Initial Decision and 

this voluminous record. 

12. As demonstrated by these figures, the record in the present case is similar in both 

complexity and length to the record in In the Matter of Rambus, Inc., where the Commission 

allowed both Respondent and Complaint Counsel an extension of twenty-one (21) days to fie 

their respective appeal briefs. In the Matter of Rambus, Inc., Docket No. 9302, Order Granting 

Extensions of Time to File Appellate Briefs and Increases In Word Count Limits (Mar. 18, 

2004). In allowing the extension in Rambus, the Commission considered "the extremely lengthy 

and detailed" record, the complexity of the facts and issues, and the length of the Initial 

Decision. The Commission noted that the record in Rambus included the live testimony of 44 

proposed findings of 

fact and reply findings of fact. The Commission also observed the complexity of the underlying 

witnesses, more than 1,900 pages of exhibits, and more than 3,000 pages of 


factual issues and length of 
 the Initial Decision, which totaled 334 pages and included more than 

1,650 findings of fact. Like Rambus, the present case involves an extremely lengthy and detailed 

record. It is appropriate to allow the requested extension pursuant to the rationale set forth in 

Rambus. 

13. No pary with an interest in this proceeding wil be prejudiced in any way by 

granting the requested relief. 

14. Due to the limited time frame within which Respondent's appeal brief must be 

fied, Respondent respectfully requests expedited consideration of this motion, pursuant to FTC 

Rule of Practice 3 .22( d). 

PP AB 1646847v I 
CONCLUSION
 

For the foregoing reasons, Respondent respectfully requests that it be granted an 

extension of twenty-one (21) days in which to fie its initial appeal brief, and that such extension 

stay the effective date of the Initial Decision until Respondent perfects its appeal by timely filing 

an appeal brief in accordance with the extension. 

PPAB 1646847vl 
Dated: March 12, 2010 Respectfully Submitted,

r:u U:~ 

Wiliam L~ Rikard, Jr. .
 

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) 334-4706 

wiliamrikard~parkerpoe.com 

ericwelsh~parkerpoe.com 

John F. Graybeal 

PARKR POE ADAMS & BERNSTEIN LLP 

150 Fayettevile Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599
 

Facsimile: (919) 828-0564 

iohngraybeal~parkerpoe.com 

Attorneys for Respondent 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS:	 Jon Leibowitz, Chairman 

Pamela Jones Harbour 

Wiliam E. Kovacic 

J. Thomas Rosch 

In the Matter of ) 

) 

) Docket No. 9327 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

PUBLIC DOCUMENT 

) 

) 

) 

PROPOSED ORDER 

Upon consideration of Respondent's Motion for Extension of Time to File Appeal Brief, it 

is hereby ORDERED that Respondent's Motion is GRANTED. Respondent is hereby granted an 

additional twenty-one (21) days in which to fie its initial appeal brief in this matter. Further, it is 

hereby ORDERED that this extension wil stay the effective date of the Initial Decision until 

Rcspondcnt pcrfccts its appeal by timely filing an appcal bricf in accordance with this extension. 

Dated: March ,2010 

The Commission 
CERTIFICATE OF SERVICE
 

I hereby certify. that on March 12, 2010, I caused to be fied via hand delivery and 

electronic mail delivery an original and twelve (12) copies of the foregoing Respondent's Motion 

forExtension of Time to File Appeal Brief, 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 filed with: 

Donald S. Clark, Secretary
 

Office of the Secretary
 

Federal Trade Commission
 

600 Pennsylvania Avenue, NW, Rm. H-135
 

Washington, DC 20580
 

secretary~ftc.gov
 

I hereby certify that on March 12, 2010, I caused to be served one copy via electronic mail 

delivery and two copies via overnight mail delivery of the foregoing Respondent's Motion for 

Extension of Time to File Appeal Briefupon: 

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 March 12,2010, I caused to be served via first-class mail delivery 

and electronic mail delivery a copy of the foregoing Respondent's Motion for Extension of Time 

to File Appeal Briefupon: 

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 

rro bertson~ftc. gov sdahm~ftc.gov 

Be~J:!P
 

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 

PPAB 1646847vl