ORiGINAL 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMSSION
 

In the Matter of ) PUBLIC 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

Docket No. 9327 

) 

COMPLAINT COUNSEL'S RESPONSE TO RESPONDENT'S 

MOTION TO SET HEARING LOCATION 

I. INTRODUCTION 

On March 13, 2009, Respondent submitted a Motion to set the hearing location of the 

above-captioned matter in Charlotte, North Carolina. As discussed in more detail below, 

Respondent's motion should be denied for the following reasons: (1) Respondent's Counsel did 

not confer with Complaint Counsel, as required by Provision 5 of the Scheduling Order, (2) 

Respondent and Complaint Counsel are not in agreement that the trial should be held in 

Charlotte, North Carolina, (3) Respondent's arguments in support of its motion are not grounded 

in fact, (4) the legal doctrine offorum non conveniens is relevant, and pursuant to the principle's 

governing the law of forum non conveniens, Respondent did not overcome the strong 

presumption in favor of Complaint Counsel's choice of forum, and (5) there are important policy 

reasons restricting a respondents abilty to force the Commission to litigate in distant forums 

merely by selecting counsel outside of Washington, D.C. 

On Januar 16, 2009, Respondent filed a motion for a new scheduling order that set room 

H-532 of the Federal Trade Commission in Washington, DC, as the place of 
 the hearing in this 

matter. Over Complaint Counsel's objections that the delay would har customers, the 

Administrative Law Judge 
 granted the motion setting the trial date for May 12, 2009, in 
Washington, DC. The FTC is on a very tight budget and as a result of this order has not 

budgeted for the witnesses and FTC staff to travel to Charlotte for a two month of triaL. 

Respondent has had months to actually discuss the trial location with Complaint Counsel and has 

failed to do so. In addition, while the FTC's courtroom has the latest electronic litigation 

technology, Complaint Counsel knows nothing about Respondent's proposed courtroom. It is 

simply too late to change gears and shift this litigation to Charlotte and it makes no sense to do 

so. 

II. ARGUMNTS AND AUTHORITIES 

Respondent's motion should be denied solely based on the fact that Respondent did not 

confer with Complaint Counsel prior to fiing this motion, as required by the Scheduling Order. 1 

In addition, Respondent's motion should be denied simply because Complaint Counsel and 

Respondent are not in agreement that the trial should be held in Charlotte, North Carolina. 

Notwithstanding the fact that those two points are dispositive, Respondent's arguments are not 

grounded in fact, and all things considered, having the trial in Charlotte, North Carolina would 

be primarily for the convenience of Respondent's business people who wil be called as pary 

witnesses, and Respondent's counsel, whose offices are located in Charlotte, North Carolina. 

This Court can find guidance in the doctrine offorum non conveniens, the analysis of which is 

relevant to the arguments being considered in support of, and in opposition to, Respondent's 

motion. Finally, there are strong policy reasons against allowing a respondent to dictate the 

location of a trial to the Commission simply by its choice of local counseL. 

lThis is not the first time that Respondent has flaunted the Judge's Order that the paries 

meet-and-confer prior to the filing of a Motion. See Judge Chappell's November 14,2008, 

Order on Respondent's Motion 
 for Protective Order and Complaint Counsel's Cross-Motion to 

CompeL. 

2 
A. Respondent Did Not Confer With Complaint Counsel As Required By
 

Provision 5 Of The SchedulIm! Order 

Provision 5 of the Scheduling Order requires that, "Each motion. . . shall be 

accompanied by a signed statement representing that counsel for the moving party has conferred 

with opposing counsel in an effort in good faith to resolve by agreement the issues raised by the 

motion and has been unable to reach such an agreement. Motions that fail to include such a 

statement may be denied on that ground." Respondent did not confer with complaint counsel to 

resolve the issues raised by its motion. 

On March 10,2009, Complaint Counsel responded to a casual remark from Respondent's 

Counsel that they would see Complaint Counsel in Nort Carolina for the hearing by sending an 

e-mail informing Respondent's Counsel that Complaint Counsel could not agree to have the 

hearing anywhere but in Washington, DC, as ordered by this Cour in the February 4,2009 

Scheduling Order.2 Respondent's Counsel did not respond to this email. Subsequently, on 

March 13,2009, Complaint Counsel was served with the motion under consideration. Between 

March 10 and March 13, Respondent did not contact or make any attempt to contact Complaint 

Counsel about the issues raised by that e-mail and by this motion. Indeed, except for the 

communication discussed above, there has not been any other communication between the 

paries with respect to the Hearing location. Not one. 

Mr. Rikard's "Statement Pursuant to Scheduling Order" is at best disingenuous. Mr. 

Rikard asserts that "Parker Poe and Complaint Counsel have discussed the issues raised by 

Respondent's motion on several occasions over the past several months." However, the only 

2 As recognized by Respondent in its motion, The Scheduling Order dated February 4, 

2009 states, "Commencement of Hearing, to begin at 10:00 a.m. in room 532, Federal Trade 

Commission Building, 600 Pennsylvania Avenue, NW, Washington, DC 20580." 

3 
"issue" raised by Respondent's motion that has been discussed between the parties at all is 

whether or not Respondent would agree to a two day recess during the triaL. These discussions 

never included the Hearing location.3 

The point of Provision 5 of the Scheduling Order is not simply that parties fie a piece of 

paper tellng this Court, using cookie-cutter language, that they have conferred to resolve the
 

issues raised by the motion. Rather, the point of Provision 5 is to require paries to actually 

confer and discuss the issues raised by the potential motion so that the judge's time wil not be 

wasted by something that could be resolved by and between counsel. In this case, the only 

communication was contained in a single e-mail from Complaint Counsel stating in relevant 

par: 

I should also note that the judge ordered that the hearing take place in 

Washington, DC, which is where we are expecting it to take place. I have been 

informed that we have not budgeted for any other location, so we cannot agree to 

have the hearing anywhere but in DC. Doing it anywhere else would be a great 

inconvenience and expense to the governent and for numerous third parties, 

which are closer to DC than to Charlotte. 

See attached Exhibit A. Respondent's Counsel did not respond to the March 10 e-mail or even 

bother to call Complaint Counsel to discuss it. Rather, Respondent fied this motion thee days 

later, asserting that Complaint Counsel and Respondent were "at an impasse." A ridiculous 

assertion in view of Respondent's failure to even attempt to discuss it. 

Respondent failed to meet-and-confer, as required by Provision 5. Accordingly, 

Complaint Counsel respectfully requests that this Court deny the motion on the ground that 

Respondent failed to meet-and-confer prior to fiing the motion with the Court. 

3 This is also reflected in Respondent's Motion where it states "(a)ssuming that the 

hearing would be held in Charlotte, Respondent's Counsel told Complaint Counsel that it did not 

object to a recess in the hearing." Motion at lj 11. 

4 
B. Complaint Counsel Does Not Agree To Have The Trial In Charlotte. North
 

CarolIna 

At the October 22, 2008, scheduling hearing, Judge Chappell merely invited the parties to 

consider having the trial in North Carolina. Judge Chappell stated, "If everyone agrees that we'd 

be better off having this trial where the witnesses are - and that's I guess Nort Carolina or 

whatever . . . if anybody wants to talk about that, come to some agreement . . ." (emphasis 

added).4 Respondent's counsel responded, "That would be something that we would like to 

consider and we'll talk to Mr. Robertson about." Though Mr. Robertson expressed optimism 

that an agreement might be reached, he did not agree to conduct the hearing in North Carolina 

and expressly reserved that such a location would be acceptable only if it "works out." At no 

time following the scheduling conference did Respondent's Counsel negotiate with Mr. 

Robertson about moving the trial to North Carolina. Respondents and Complaint Counsel have 

not agreed to move the trial to Charlotte, North Carolina. Absent any agreement, the trial should 

be held where this Court ordered it take place in its February 4,2009 Order Granting 

Respondent's Motion To Amend The Scheduling Order; to wit at the Federal Trade Commission 

Building in Washington, DC, where almost all administrative proceedings before the Federal 

Trade Commission occur. 

C. Many Of Respondent's Arguments Are Not Grounded In Fact 

Respondent makes a myriad of arguments as to why its motion to move the trial location 

to Charlotte, North Carolina should be granted. Although Complaint Counsel believes that the 

4 Respondent reads too much into the exchange on that subject that occurred at the 

Scheduling Conference, arguing that "(a)t the scheduling conference held on October 22,2008, 

Administrative Law Judge Chappell, Complaint Counsel and Respondent's Counsel all 

recognized that convenience and economic efficiency dictated that the hearing would likely need 

to occur in North Carolina." 

5 
issues raised above are dispositive of Respondent's motion, Complaint Counsel addresses many 

of Respondent's arguments below. 

Respondent argues that many of the witnesses Complaint Counsel and Respondent intend 

to call reside in Charlotte. This is simply not true. No more than four of approximately 25 of 

Complaint Counsel's witnesses reside in Charlotte, North Carolina. Accordingly, the vast 

majority of Complaint Counsel's witnesses wil have to travel, regardless of whether the trial is 

in Nort Carolina or Washington, DC. Respondent admits this in paragraph 7 of its motion in 

which it states, "None of the third-pary witnesses are located in either Charlotte, North Carolina 

or Washington, DC, and therefore such third-pary witnesses wil have to travel regardless of 

whether the hearing is held in Charlotte or Washington, DC."s 

Respondent also argues that Charlotte, Nort Carolina is the most convenient and costeffective hearing location for the parties and other paricipants to the hearing. As only four of 

Complaint Counsel's witnesses reside in Charlotte and none of the third-pary witnesses are 

located in either Charlotte or Washington, the majority of witnesses called to testify at trial wil 

have to travel, at the expense of the pary callng them to testify, regardless of where the trial is 

located. In addition, the Judge and Complaint Counsel are both located in Washington, DC. 

Litigating a trial in Charlotte, North Carolina wil come at a huge expense to the Governent, 

and thus, the taxpayers of the United States. As a matter of fact, with the exception of a few 

witnesses, the only parties for whom a trial location in Charlotte wil be more convenient are 

S Complaint Counsel does not believe that there is any reason to have this trial in 

Charlotte; however, except for no more than four witnesses we intend to call, none of the 

remaining witnesses are in Charlotte. These same witnesses are on Respondent's list as well, 

and we assume that Respondent wil put on its direct of these witnesses during Complaint 

Counsel's case in chief. 

6 
Respondent's counsel and the Polypore business people who wil be called to testify. Even this 

overstates the inconvenience for Respondent, as it's special in-house counsel, Michael Shore, 

reportedly owns a home in Bethesda, Md., and its former counsel in this matter, Hogan & 

Harson also have offices in D.C., which they have made available to Parker Poe to conduct the 

deposition of Complaint Counsel's expert Dr. Simpson. 

Respondent argues that a trial in Washington, DC wil impose lost work and travel time 

hardships that Polypore employees should not have to bear. Each testifying employee wil more 

than likely be asked to spend a very limited amount of time in Washington, DC testifying. In 

addition, Washington, DC is a mere one hour flght from Charlotte, NC. Even if the trial is 

located in North Carolina, those same employees would lose work time preparing for trial 

testimony and actually testifying at triaL. Not much additional time would be lost for these 

employees in the short, one hour flght from Charlotte to Washington, DC, which Complaint 

Counsel has made countless times during discovery in this matter. 

It is also worth considering that most of the customers who wil be called in this case 

actually reside in California (Trojan) or in Western Pennsylvania (EnerSys). The Trojan 

witnesses can fly direct to Washington, DC or take two flghts to get to Charlotte. The EnerSys 

witnesses have been driving the two-hour drive to Washington, DC from Pennsylvania, so it 

would be an increased burden for them to have to fly to Charlotte, North Carolina. Both also 

have counsel here in Washington, DC, who would have to travel to North Carolina as well, at 

these customers' expense.6 It would be more than an insult for this accused monopolist to jack 

6 The other major customer, Exide, is in Atlanta with its counsel being located in 

Washington! DC. Only the witnesses travel expenses are reimbursed; not their attorney travel 

and lodging expenses. Thus, third pary witnesses such as Exide and Trojan with counsel in 

D.C. would bear additional costs and expenses related to their attorneys' travel to North 

7 
up prices well above competitive levels and then say that these customers must pay to come to a 

trial in Charlotte because Polypore International; which has facilities all over the world, canot 

be bothered with showing up at trial in Washington, DC. 

Respondent argues that Charlotte, North Carolina has extensive air transportation service 

to and from a multitude of locations. As the Nation's Capital, Washington, DC has thee airports 

that also provide extensive air transportation service to and from a multitude of locations. 

Respondent argues that Respondent's Counsel, Parker Poe Adams & Bernstein LLP has 

its headquarters office in Charlotte, North Carolina, and that a Washington, DC based hearing 

would require Respondent to incur significant attorney-related travel and hotel expenses that 

could be avoided if the hearing takes place in Charlotte. Both Judge Chappell and Complaint 

Counsel are located in Washington, DC. A Charlotte, Nort Carolina based hearing would 

require the Judge, Complaint Counsel, and thus, the Federal Governent, to incur significant 

travel and lodging expenses. 

Respondent further argues that Charlotte is a more appropriate venue because of its 

proximity to Piney Flats, Tennessee, which is a three hour car ride from Charlotte. Respondent 

claims in its motion that it plans to move for an order allowing Judge Chappell to view 

Respondent's manufacturing facility in Piney Flats during the course of the hearing. First, 

Complaint Counsel has never seen this motion, and this motion is not before this Court for 

consideration at this time. Second, it would certainly be cheaper for Judge Chappell to take a 

one-day trip to Piney Flats, Tennessee from Washington, DC than it would be for him to incur 

the costs of spending an entire trial away from his home in the Washington, DC area. Third, 

Carolina. 

8 
Respondent offers no evidence on why a picture of Piney Flats, or a video detailing the operation 

of its facilities, wil not suffice. 

As the foregoing demonstrates, many of 
 Respondent's arguments as to why Nort 

Carolina is a more appropriate venue are not based in fact. For every argument as to why 

Charlotte, North Carolina is a more convenient location for Respondent, Complaint Counsel can 

show that Washington, DC is a more appropriate location for the hearing in this matter. 

Accordingly, this Court should deny Respondent's motion and proceed with the trial where this 

Court ordered it take place, in Washington, DC. 

D. The Legal Doctrine Of Forum Non Conveniens Would Dictate That The Trial
 

Be Held In Washington. DC. 

In addition, this Court can find guidance in the legal doctrine offorum non conveniens. 

Although not directly on point, the doctrine offorum non conveniens is a balancing test used by 

federal courts to determine where a trial should be conducted and in what state or judicial district 

is most appropriate, considering the paries involved. The doctrine offorum non conveniens is 

available to paries to a trial if they believe the trial should be brought in a more appropriate 

forum. Pursuant to the law offorum non conveniens, upon a motion made by a pary to the case, 

a court may resist imposition upon its jurisdiction even when the jurisdiction is authorized by the 

letter of a general venue statute, if another venue or forum is more appropriate. Norex 

Petroleum Ltd. v. Access Indus., 416 F.3d 146, 153 (2d Cir. 2005). Courts have outlned a theestep process to guide the analysis. First, a cour determines the degree of preference properly 

accorded the plaintiff s choice of forum. Second, the cour considers whether the alternative 

forum proposed by the defendants is adequate to adjudicate the parties' dispute. And third, the 

court wil balance the private and public equities implicated in the choice of forum. Norex 

9
 
Petroleum Ltd., at 153. 

Respondent's motion is not aforum non conveniens motion. However, it is akin to one, 

and the legal principles governing the analysis are on point and can guide this Court in its 

consideration of the motion. Each element of the three-part test is analyzed below. 

"Any review of aforum non conveniens motion stars with a 'strong presumption in favor 

of the plaintiff's choice of forum.'" Norex Petroleum Ltd., at 154. Complaint Counsel's choice 

of forum is Washington, DC. In its motion, Respondent failed to offer facts that would 

overcome the presumption in favor of Complaint Counsel's choice of forum. As Respondent 

admits in Paragraph 7 of its motion, "None of the third-pary witnesses are located in either 

Charlotte or Washington, DC, and therefore. . . wil have to travel regardless of whether the 

hearing is held in Charlotte or Washington, DC." In addition, notwithstanding Respondent's 

assertions, no more than four of Complaint Counsel's approximately 25 witnesses are located in 

Charlotte, North Carolina. Moreover, the Judge is located in Washington, DC. All things 

considered, Charlotte, North Carolina is a more convenient location only for Respondent and 

some of its attorneys. Those unsupported arguments fail to overcome the strong presumption in 

favor of the plaintiffs choice of 
 forum in aforum non conveniens analysis. 

The next step in the analysis is to consider whether the alternative forum proposed by the 

Respondent is adequate to adjudicate the parties' dispute. In Norex, the court concluded that 

there was nothing in the record that suggested that either party gained or lost any advantage in 

the quality of the legal representation by having the trial in the plaintiff's choice of forum. 

Norex Petroleum Ltd., at 156. Likewise, in this case, Respondent offers no evidence that either 

Respondent or the Governent wil gain or lose anything in the quality of legal representation if 

the trial is held at Complaint's Counsel's forum of choice, Washington, DC. In fact, the 

10 
Government stands to lose something important. 

The last step in aforum non conveniens analysis is to balance the private and public 

equities implicated in the choice of forum. In the present case, many of the third pary witnesses 

wil have to travel, regardless of whether the trial is held in Washington, DC or Charlotte, Nort 

Carolina. In addition, both the Judge and Complaint Counsel are located in Washington, DC. 

The alternative forum would require the Governent and Judge to travel, to the benefit of only 

Respondent and Respondent's attorneys. If the trial is held in Charlotte, Nort Carolina, both 

the Judge and Complaint Counsel wil incur travel, lodging, and other costs that wil come at the 

expense of the Federal Governent, and ultimately, Unites States' taxpayers. 

E. Strong PolIcy Grounds Dictate Against a Respondent's Abilty to Select a
 

Forum 

There are strong policy reasons for denying Respondent's motion. If all respondents 

before the Federal Trade Commission can force the governent to litigate it's cases in distant 

forums merely by arguing that their business people and attorneys wil be inconvenienced 

because they are located outside Washington, DC, then the Commission wil be put to great 

expense and inconvenience in every litigation that it brings. In this case, Polypore changed its 

counsel in Washington, DC, Hogan & Hartson, in favor of Parker Poe in North Carolina. It now 

argues that it and its attorneys wil be inconvenienced by a trial in DC. The law canot be that a 

respondent can infuence the Commission's choice of venue by respondents choice of counseL. 

11 
III. CONCLUSION 

For the foregoing reasons, Complaint Counsel respectfully requests that Respondent's 

Motion To Set Hearing Location be denied. 

Dated: March 20, 2009 Respectfully submitted, By: ~~ ~
 

J. RO ERT ROBERTSON 

Federal Trade Commission 

Bureau of Competition 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Telephone: (202) 325-2008 

Fax: (202) 326-2884 

Complaint Counsel 

12
 
CERTIFICATE OF SERVICE 

I hereby certify that on March 20, 2009, I fied via hand an original and two copies of the 

foregoing Complaint Counsel's Opposition to Respondent's Motion To Set Hearing Location 

with: 

Donald S. Clark 

Secretar of the Commission 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Room H- 1 72 

Washington, D.C. 20580 

I also certify that on March 20, 2009, I delivered via hand delivery two copies of the 

foregoing to: 

The Honorable D. Michael Chappell 

Chief Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Room H- 113 

Washington, D.C. 20580 

I also certify that on March 20, 2009, I delivered via electronic mail one copy of the 

foregoing to: 

Wiliam L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiliamrikard 0ì parkerpoe.com 

ericwelsh 0ìparkerpoe.com 

By: 

Terri Marin 

Federal Trade Commission 

601 New Jersey Avenue, NW 

Washington, D.C. 20001 

Telephone: (202) 326-3488 

tmaitin 0ì ftc. gov (Email) 

13 
. . 

, 
From: Robertson, J. Robert
 

Sent: Tuesday, March 10,200910:10 AM
 

To: Rikard, Jr., William L.
 

Cc: Moscatelli, Catharine M.; Dahm, Steven A.; Gris, Benjamin
 

Subject: RE: Trial Date
 

William: 

We will keep with the judge's May 14th date. I expect that our first few witnesses will
 

be from Polypore. I expect Messrs. Toth, Hausweld, and Roe to be within the first few
 

days. We expect that we will then follow with the other Polypore/Microporous witnesses on
 

our list. Please let them know that they will need to be available on those dates.
 

I should also note that the judge ordered that the hearing take place in Washington, DC,
 

which is where we are expecting it to take place. I have been informed that we have not
 

budgeted for any other location, so we cannot agree to have the hearing anywhere but in
 

DC. Doing i tanywhere else would be a great inconvenience and expense to the government
 

and for numerous third parties, which are closer to DC than to Charlotte.
 

Thank you for informing of the recent lawsuit against Trojan. We expect to add this as
 

another example of monopoly conduct in our case.
 

At present, you are holding off any sale of the extruder equipment until we meet on March
 

27th. Please let me know if your client changes any position on this point.
 

Thank you. Robby Robertson.
 

-----Original Message----­

From: Rikard, Jr., William L. (mailto :williamrikardØparkerpoe. com)
 

Sent: Mon 3/9/2009 12:01 PM
 

To: Robertson, J. Robert
 

Subj ect: RE: Trial Date
 

Robby, 

Just returned from an out of office meeting. will talk with client and get back to you as
 

soon as possible.
 

William Rikard, Jr.

Partner 

~http://ww.parkerpoe.com/images/logo_small . jpg~ 

Three Wachovia Center I 401 South Tryon Street I Suite 3000 I Charlotte, NC 28202


Phone: 704.335.9011 I Fax: 704.335.9689 I ww.parkerpoe.com I vcard 

~http://ww.parkerpoe.com/printfriendlY/vcards/395 . vcf~ I map
 

~http://maps.google . com/maps ?q=401 South Tryon Street%2CCharlot te%2CNC%2C2 82 02 %2CUni ted


States~ 

From: Robert Robertson (mailto:rrobertsonØftc.gov) 

Sent: Monday, March 09, 2009 9: 31 AM
 

To: Rikard, Jr., William L.
 

Subj ect: Trial Date
 

1 
William: 

You suggested we start the trial after the 21st. Do you want to start on Friday,
 

the 22nd, or Tuesday, the 26th? The 25th is Memorial day. Pls let me know as soon as
 

possible. I am trying to schedule another trial this morning. Thanks.
 

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2