ORIGINAL
 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUGES
 

In the Matter of 

) 

) 

) Docket No. 9327 

POL YPORE INTERNATIONAL, INC., ) 

Respondent. ) 

) 

ORDER ON MOTION FOR LEAVE TO INTERVENE 

BY NON-PARTY HOLLINGSWORTH & VOSE COMPANY 

I. 

On September 2,2009, non-pary Hollngsworth & Vose (H&V) :fled a motion seeking 

leave to intervene in this action for the limited purpose of opposing any order or remedy 

affecting its rights and in particular its contractual rights arsing under the March 23,2001 Cross 

Agency Agreement between H&V and Daramic, Inc. (the "Cross Agency Agreement"). The 

deadline for the parties to :fle a response or opposition to the motion to intervene was September 

14,2009. Neither pary :fled an opposition or objection. For the reasons set forth below, H&V's 

motion is GRANTED in part and DENIED in par. 

II. 

H&V states that Complaint Counsel has asserted in this case that Daramic, as part of an 

unlawful pattern of anti 
 competitive conduct, entered into the Cross Agency Agreement in order 

to prevent H&V from entering the PE separator market. H&V further states that, as a remedy for 

Daramic's alleged unfair competition with respect to the Cross Agency Agreement, Complaint 

Counsel seeks an order compelling Respondent to modify the Cross Agency Agreement in order 

to rescind H&V's rights arising under it. 

H&V urges, "(a)bsent a full and fair opportnity to be heard, including through the 

presentation of evidence and the right of cross-examination, H&V's contractual rights may not 

be adjudicated." H&V argues that it should be permitted to intervene to be heard on the merits 

of the proposed remedy because the proposed remedy affects H& V's rights. 

III. ' 

Pursuant to Rule 3.14(a) ofthe Commission's Rules of 
 Practice, the Administrative Law 

Judge "may by order permit the intervention to such extent and upon such terms as are provided 

by law or as otherwise maybe deemed proper." 16 C.F.R. § 3.14(a). By law, good cause must 

be shown to allow intervention. In re Kentucky Movers Household Goods Carriers Ass 'n, Dkt. 
9309,2004 FTC LEXIS 84, at *3 (citing 5 D.S.C. § 45(b)). Before the Commission wil allow 

intervention into its proceedings, it must be demonstrated that the persons seeking such 

intervention desire to raise substantial issues of law or fact which would not otherwise be 

properly raised or argued; and that the issues raised are of suf:fcient importance to warrant 

additional expenditure of Commission resources on a necessarly longer and more complicated 

proceeding. Id. (citing In re Firestone Tire & Rubber Co., Dkt. 8818, 77 F.T.C. 1666 (1970)). 

In considering a motion to intervene, Administrative Law Judges shall also take into account the 

need to conclude the proceedings as expeditiously as possible. Id. at * 4 (citing In re Kellogg 

Co., Dkt. 8883, 1979 FTC LEXIS 89, *3 (1979)). 

Part VII of the order for relief proposed by Complaint Counsel would require
 

Respondent to do the following:
 

1. Within :ffteen (15) days after the date this Order becomes :fnal: (a)
 

modify 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 ofthe H&V Agreement, 

and all related terms and de:fnitions, as that covenant applies to North 

America and to actual and potential customers within North America. 

2. Within thirty (30) days after the date this Order becomes :fnal, fie with
 

the Commission the written amendment to the H& V Agreement 

("Amendment") that complies with the requirements of Paragraph VLA.1 

( sic) . . . . 

H& V urges contends that, if Complaint Counsel prevails with respect to the relief sought 

by Part VIII of 
 its proposed order, H&V's contractual rights wil have been adjudicated without 

H& V having been a pary to this action. 

H& V has demonstrated that it wil raise substantial issues pertaining to its rights under 

the Cross Agency Agreement and that the issues are of suf:fcient importance. Further, no pary 

has opposed the motion for intervention. For these reasons, the H&V's motion to intervene is 

GRANTED IN PART, as described below. 

iv. 

The trial in this matter was concluded on June 12,2009. The record was closed on June 

22, 2009. The paries submitted their post trial briefs on July 10, 2009 and their replies to each 

other's post trial briefs on July 31,2009. 

The Complaint in this case, which included allegations about the Cross Agency 

Agreement, was issued on September 9, 2008. It cannot reasonably be disputed that H&V was 

aware of the allegations of the Complaint well before :fling this motion to intervene. Indeed, on 

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February 4,2009, H&V :fled a stipulation regarding the treatment under the Protective Order 

Governing Discovery of certain ofH&V's con:fdential information. H&V submitted three 

motions for in camera treatment of 
 its materials on April 9, 2009, May 28,2009, and June 16, 

2009 respectively. In addition, on May 12, 2009, H&V :fled a motion to quash the subpoenas ad 

testifcandum served on H&V employees, Robert Cullen and Kevin Porter. These H&V 

employees appeared through deposition testimony, as agreed to by the parties and approved by 

the Administrative Law Judge. H&V's motion to intervene, fied on September 2,2009, is 

untimely for purposes of allowing H&V to present evidence or conduct cross-examination at the 

trial in this matter. Accordingly, in this respect, H&V's motion to intervene is DENIED. 

H&V's motion to intervene is GRANTED only for the limited purose of providing a
 

brief and any proposed :fndings of fact on the issue of how the proposed remedy might affect 

H& V's rights under the Cross Agency Agreement. Any such brief and proposed :fndings shall 

be fied and served on the paries no later than September 30,2009. The parties may :fle any 

response or opposition no later than October 9,2009. 

ORDERED: ~W1~Jj . ichael Ch pell
 

Chief Administrative Law Judge 

Date: September 23, 2009 

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