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UNITED STATES OF AMERICA tÇ ll tfll 1) 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

Polypore International, Inc. 

a corporation, 

Respondent. 

) 

) 

) 

) Docket No. 9327
 

) 

) PUBLIC
 

) 

) 

) 

RESPONDENT'S RESPONSE TO INTERVENOR
 

HOLLINGSWORTH & VOSE COMPANY'S
 

PROPOSED FINDINGS OF FACT
 

Counsel for Polypore International, Inc.: 

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) 335-9689 

wiliamrikardcqparkerpoe.com 

ericwelshcqparkerpoe.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 cqparkerpoe. com
Respondent, Polypore International, Inc. ("Polypore"), respectfully submits the 

following responses to Intervenor Hollngsworth & Vose Company's Proposed Findings of 

Fact. 

I. EXHIBIT AND WITNESS INDICES
 

Hollngsworth & V ose Company ("H& V") was not named a pary to this proceeding and, 

therefore, did not have discovery rights or the right to offer documentar 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 SEPARATORS
 

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)). 

ResDonse to H&V's Findin2 No.1: 

Respondent has no specific response. 

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 ir 18; PX0925 at 5 (Porter Dep. at 21-23, in camera)). 

Daramic's flooded battery customers canot substitute H&V's AGM battery separators for 

Daramic's PE battery separators, and H& V's VRLA battery customers canot 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). 

ResDonse to H&V's Findin2 No.2: 

Respondent has no specific response. 

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 

L (PX0917 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). 

ResDonse to H&V's Findin2 No.3: 

H&V's finding number 3 is incomplete. At the outset of the Cross Agency Agreement, 

Daramic had no plans to produce AGM separators, and f 

l. (RFOF 1124). Accordingly, Daramic and H&V were not actual or potential 

competitors upon entering into the Cross Agency Agreement. (RFOF 1124). 

Daramic and H& V f 

new products. 

(H&V FOF 3; RFOF 1123). The Agreement also provided a platform for the paries to f 

technologies and development of
 l, but also planned potential sharing of 


l. (PX0917 (Cullen, Dep. at 53-57), in camera). 

4. f 

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

ResDonse to Findin2 No.4: 

H& V's finding number 4 is incomplete and misleading to the extent that it supports that 

only AGM separators involve the disclosure of technical information during the sales process. 

Mr. Cullen's statements regarding the highly technical nature of the sales process for battery 

separators are not restricted only to AGM battery separators as this finding suggests. Instead, 

Mr. Cullen refers to all sales of battery separators (including sales of Daramic's PE battery 

separators) as a "lengthy" and "highly technical complex sales process." (PX0917 (Cullen, Dep. 

at 321), 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 
l 

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

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

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

ReSDonse to Findin2 No.5:
 

H&V's finding number 4 is incomplete and misleading. For its response to H&V's 

finding, Respondent incorporates by reference its response to Finding No.4. 

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

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

pricing, the Agreement provided that f 

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)). 

ReSDonse to Findin2 No.6:
 

Respondent has no specific response. 

7. Section 4 of the Cross Agency Agreement states in relevant part:
 

f 

(Agreement § 4(a-b)). 

l 
ReSDonse to Findin2 No.7:
 

Respondent has no specific response. 

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

L Paragraph 4(b) f 

L 

ReSDonse to Findin2 No.8:
 

Respondent has no specific response. 

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 

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

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

ReSDonse to Findin2 No.9:
 

H&V's finding number 9 is incomplete and misleading to the extent that it supports that 

DaramIc did not share with H&V confidential information regarding Daramic's business. 

Daramic, in fact, shared with H& V valuable confidential information f 

l. (PX0917 (Cullen, Dep. at 90-91, 94-95), in
 

camera). The exchange of this confidential information faciltated the joint activities, which 

included significant joint marketing and promotional efforts as well as joint exhibits at trade 

shows and conventions. (RFOF 1126). These efforts were successful in opening doors in regions 

of the world where Daramic or H&V had little or no presence. (RFOF 1126).
 

In the United States, f
 

L (PX0917 (Cullen, Dep. at 61-63), in camera). Specifically, f 

l. (PX0917 (Cullen, Dep. at 63), in camera). f 
l. (PX0917 (Cullen, Dep. at 65), in camera). f 

l. (PX0917 (Cullen, Dep. at 68), in camera).
 

Overseas, f
 

l. (PX0917 (Cullen, Dep. at 77), in camera). f 

l. (PX0917 (Cullen, Dep. at 123-126), in 

camera). 

10. During the term of 
 the Cross Agency Agreement, Daramic f 

L As a result of Daramic's sales 

activities on behalf ofH&V, Daramic f 

L (PX0917 at 075 (Cullen Dep. at 

313-14, in camera)). 

ReSDonse to Findin2 No. 10: 

H&V's finding number 10 is incomplete. Daramic not only sold H&V AGM separators 

abroad, but also made efforts to help H&V increase sales of AGM separators domestically. For 

example, f 

l. (PX0917 (Cullen, Dep. at 130-132), in camera). f 

l. (PX0917 (Cullen, Dep. at 130­

132), 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)). 
ReSDonse to Findin2 No. 11: 

H&V's finding number 11 is incomplete. f 

l. (PX0917 (Cullen, Dep. at 86,91), in camera). f 

l. (PX0917
 

(Cullen, Dep. at 86, 91), in camera). f 

l. (PX0917
 

(Cullen, Dep. at 86,91), in camera). 

12. The Cross Agency Agreement f
 

1 

L (PXOI58, in camera). 


ReSDonse to Findin2 No. 12: 

Respondent has no specific response. 

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 set forth in Section 4 of the H& V Agreement, and all related terms and 

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

customers within North America. 

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 PX0158 is taken from Complaint Counsel's 

Exhibit List (PXOOOi at 004), which is described as "Cross Agency Agreement - Renewal and DaramIc 

Correspondence." H&V does not know what is meant by "DaramIc Correspondence" and understands the Renewal 

to the Cross Agency Agreement to be ( 
2. Within thirty (30) days after the date this Order becomes final,
 

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

Paragraph VLA.l (sic) . 

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

ReSDonse to Findin2 No. 13: 

Respondent has no specific response. 

("Amendment") that complies with the requirements of 


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

Agreement to f 

L (Agreement § 4(a), PXOI58). 

ReSDonse to Findin2 No. 14:
 

Respondent has no specific response.
 

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 VIlLA(1)).
 

ReSDonse to Findin2 No. 15:
 

Respondent has no specific response.
 
Dated: October 9,2009 Respectfully Submitted, 

Q- 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) 335-9689 

wiliamrikardcqparkerpoe.com 

ericwelshcqparkerpoe.com 

John F. Graybeal 

PARKR POE ADAMS & BERNSTEIN, LLP 

150 Fayettevile Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

j ohngraybealcqparkerpoe.com 

Attorneys for Respondent 
CERTIFICATE OF SERVICE 

I hereby certify that on October 9, 2009, I caused to be filed via hand delivery and 

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

Intervenor Hollingsworth & Vose Company's Proposed Findings of Fact (Public), 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, Secretar 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretarycqftc. gov 

I hereby certify that on October 9, 2009, I caused to be served one copy via electronic 

mail delivery and two copies via overnight delivery of the foregoing Respondent's Response to 

Intervenor Hollngsworth & Vose Company's Proposed Findings of Fact (Public) upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj cqftc. gov 

I hereby certify that on October 9,2009, I caused to be served via electronic mail delivery 

and one copy via First Class mail delivery a copy of the foregoing Respondent's Response to 

Intervenor Hollngsworth & Vose Company's Proposed Findings of Fact (Public) upon: 

J. Robert Robertson, Esq. Steven Dah, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rrobertsoncqftc. gov sdahcqftc.gov 

B£~eyfi/--l

. 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 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of ) Docket No. 9327 

) Polypore International, Inc., ) PUBLIC DOCUMENT
 

a corporation.
 ) 

AMENDED CERTIFICATE OF SERVICE 

I hereby certify that on October 9, 2009, I caused to be fied via hand delivery and 

electronic mail delivery an original and two copies of the Respondent's Response to Intervenor 

Hollngsworth & Vose Company's Proposed Findings of Fact (Public), 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 on the same day by other means with: 

Donald S. Clark, Secretary 

Office of the Secretar 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretarycqftc. gov 

I hereby certify that October 9, 2009, I caused to be served one copy via electronic mail 

delivery and two copies via overnight mail delivery of the Respondent's Response to Intervenor 

Hollingsworth & Vose Company's Proposed Findings of Fact (Public) upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Washington, DC 20580 

oali~ftc.gov 

PPAB 1615755vl 
I hereby certify that on October 9,2009, I caused to be served via first-class mail delivery 

and electronic mail delivery a copy of the Respondent's Response to Intervenor Hollingsworth 

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

1. Robert Robertson, Esq. 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

rrobertsoncqftc.gov 

Kathryn K. Conde, Esq.
 

Nutter McClennen & Fish LLP 

World Trade Center West 

155 Seaport Boulevard 

Boston, Massachusetts 02210-2604 

kcondecqnutter .com 

Steven Dah, Esq. 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Washington, DC 20580 

sdahcqftc.gov 

Adam C. Shearer 

Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706 

2
 

PPAB 1615755vl 
CERTIFICATE OF SERVICE 

I hereby certify that on October 13, 2009, I caused to be filed via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Amended Certifcate of 

Service, 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 

secretarycqftc. gov 

I hereby certify that on October 13, 2009 I caused to be served one copy via electronic 

mail delivery and two copies via overnight mail delivery of the foregoing Amended Certifcate 

of Service 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 October 13, 2009, I caused to be served via first-class mail 

delivery and electronic mail delivery a copy of the foregoing Amended Certifcate of Service 

upon: 

1. Robert Robertson, Esq. Steven Dah, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rrobertsoncqftc.gov sdahm~ftc. gov 

Kathryn K. Conde, Esq.
 

Nutter McClennen & Fish LLP 

World Trade Center West 

155 Seaport Boulevard 

Boston, Massachusetts 02210-2604 

kcondecqnutter.com rJ, -l-;~
 

Adam C. Shearer 

Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706 

PPAB 1615755vl