UNITED STATES OF AMERICA
 

BEFORE THE FEDERA TRAE COMMISSION
 

)
 PUBLIC

In the Matter of
 ) 

)
 Docket No. 9327

Polypore International, Inc. )


a corporation.
 ) 

) 

COMPLAINT COUNSEL'S OPPOSITION TO RESPONDENT'S MOTION FOR IN 

CAMERA TREATMENT OF CERTAIN TRIAL EXHIBITS 

Respondent does not even approach satisfyng its burden of showing that disclosure of 

the material for which it seeks in camera treatment wil result in a clearly defined and serious 

injury - - as required by Rule 3.45 governng the in camera treatment of materials. 16 C.F.R.
 

§ 3.45(b). Respondent claims that it carefully limited the number of documents in which it 

claims merits in camera treatment.! This "carefully" culled list results in a request for in camera 

treatment for more than 1,600 documents. Respondent categorizes each document into one or 

more of nine broad categories with very little analysis of 
 how the information, ifmade public, 

would seriously injure the company. Respondent's Motion, Exhibit B. This is a complete 

failure to justify its broad request for what should be a narow application of in camera 

treatment, and even a cursory review of the materials for which respondent seeks in camera 

treatment reveals documents that should be put on the public record. Respondent's application 

should therefore be denied. 

The Commission has always operated under the presumption that its proceedings ­

! See Respondent's Motion For In Camera Treatment of 
 Certain Trial Exhibits (hereafter 

"Respondent's Motion") at 3. 
including the evidence presented in those proceedings - should be open to the public. See Crown 

Cork & Seal Co., Inc., 71 F.T.C. 1714, 1714-15 (1967); H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 

1186 (1961). To help applicants determine what should be accorded confidential treatment, the 

Commission established six factors to consider in determining whether in camera treatment is 

appropriate: (1) the extent to which the information is known outside ofthe part's business; (2) 

the extent to which the information is known by employees and others involved in the business; 

(3) the extent of 
 measures taken by the party to guard the secrecy of 
 the information; (4) the

value of 
 the information to the party and to its competitors - ifthe information is old, a greater 

burden is placed on the party to demonstrate its value; (5) the amount of effort or money 

expended by the party in developing the information; and (6) the ease or difficulty with which 

the information could be properly acquired or duplicated by others. Bristol-Meyers Co., 90 

F.T.C. 455, 456 (1977). Takng these factors into account, applicants for in camera treatment 

must make a "clear showing that the information concerned is sufficiently secret and suffciently 

material to their business that disclosure would result in serious competitive injur." General 

Foods Corp., 95 F.T.C. 352, 355 (1980). This standard best serves the balance between "the 

need for a public understanding of 
 the Commission's adjudicative actions and the interest of 

business in avoiding competitive injur from public disclosure of information." Id. To carr
 

its burden, respondents must show "that the public disclosure. . . wil result in a clearly defined, 

serious injur." Hood, 58 F.T.C. at 1188.
 

Instead of satisfyng its burden, respondent paints with the broadest brush possible. First, 

the shear volume of documents for which in camera treatment is requested is suspect. 

Complaint counsel and respondent previously submitted exhibits lists with approximately 1,355 

and 1,546 exhibits, respectively, for a total of2,901 potential tral exhibits. Of 
 the 2,901 
exhibits, respondent seeks in camera treatment for all or portions of approximately 1,663 

documents, well over half of 
 the total potential tral exhibits. For approximately 1,350 out of 

the 1,663 exhibits, respondent seeks in camera treatment for the entire document. 

Second, while respondent attempts to justify why each document should be accorded in 

camera protection, they fail to analyze each document with any specificity, preferrng to lump 

each document into one or more of nine broad categories. Within each category, respondent 

includes a brief justification for its in camera request consisting of a short description of the 

document usually followed by a sentence explaining that "( s )hould this information be disclosed 

to the public, competitors could use this information to their advantage and Polypore's 

detrment," or similar language. Respondent's Motion, Exhibit B. This approach fails to meet 

the burden of 
 justifyng keeping material from the public eye. Respondent's motion should 

therefore be rejected on these grounds alone. 

To the extent complaint counsel can glean any relevant information from respondent's 

motion, even a cursory examination ofthe documents for which respondent seeks in camera 

treatment reveals the flaws in their approach. For example, respondent seeks to seal the 

following documents: 

· Business plans and strategies containing the very tye of information considered by the 

Commission inHP. Hood & Sons, Inc., 58 F.T.C. 1184 (1961). Information on 
 pricing, 

the costs of doing business, and profits is "of a tye which most businesses would prefer 

to keep confidential," however, the Commission nonetheless held that "requests to seal 

relevant evidence of this tye should be looked upon with disfavor and only granted in 

exceptional circumstances," Id. at 1189 (emphasis added). Respondent's justifications 

outlined in Exhibit B of 
 Respondent's Motion show no "exceptional circumstances" that 

place all of their information above that at issue in HP. Hood, and thus they have failed 

to satisfy their burden. 

· Documents that are three or more years old. Such documents are presumed to belong on 

the public record. General Foods Corp., 95 F.T.C. at 353; Crown Cork & Seal, 71 

F.T.C. at 1751.
 
. Documents containing information that is already in the public domain For example, 

there is a letter to a customer anouncing that a price increase is imminent. This letter 

does not contain the details of the price increase, nor does it mention any details relating 

to the terms or conditions of any pricing or service agreement. The fact that Polypore 

implemented a price increase in the past is no secret. In fact complaint counsel states as 

much in its complaint that was publicly filed by the Commission on September 10, 2008. 

These examples are merely illustrative of the many problems caused by respondent's broad 

approach. 

For the reasons discussed above, respondent's application for in camera treatment of 

certain confidential materials should be denied in its entirety. 

Respectfully Submitted, 

J. Robert Robertson 

Chief Trial Counsel 

Bureau of Competition 

Federal Trade Commission 

600 Pennsylvania Ave, NW (H-374) 

Washington, DC 20580 

Telephone: (202) 326-2813 

Facsimile: (202) 326-2214 

Dated: April 
 16, 2009 
. Documents containing information that is already in the public domain. For example, 

there is a letter to a customer announcing that a price increase is imminent. This letter 

does not contain the details of the price increase, nor does it mention any details relating 

to the terms or conditions of any pricing or service agreement. The fact that Polypore 

implemented a price increase in the past is no secret. In fact complaint counsel states as 

much in its complaint that was publicly filed by the Commission on September 10, 2008. 

These examples are merely ilustrative of 
 the many problems caused by respondent's broad 

approach. 

For the reasons discussed above, respondent's application for in camera treatment of 

certain confidential materials should be denied in its entirety. 

J~ Robert Robertson 

Chief Trial Counsel 

Bureau of Competition 

Federal Trade Commission 

600 Pennsylvania Ave, NW (H-374) 

Washington, DC 20580 

Telephone: (202) 326-2813 

Facsimile: (202) 326-2214 

Dated: April 16, 2009 
CERTIFICATE OF SERVICE 

I hereby certify that on April 
 16, 2009 I filed via hand and electronic mail delivery an 

original and two copies of 
 the foregoing COMPLAIT COUNSEL'S OPPOSITION TO 

RESPONDENT'S MOTION FOR IN CAMERA TREATMENT OF CERTAI TRI
 

EXHIBITS with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

I hereby certify that on April 
 16, 2009, I served via electronic mail and hand delivery a 

copy ofthe foregoing COMPLAIT COUNSEL'S OPPOSITION TO RESPONDENT'S 

MOTION FOR IN CAMERA TREATMENT OF CERTAI TRI EXHIBITS with: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, H-106 

Washington, DC 20580 

oali gOV (qftc. 

I hereby certify that on April 
 16, 2009, I served via electronic mail delivery a copy ofthe 

IN 

CAMERA TREATMENT OF CERTAI TRI EXHIBITS with: 

foregoing COMPLAIT COUNSEL'S OPPOSITION TO RESPONDENT'S MOTION FOR 


William L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

wiliamrkard(qparkerooe.com 

ericwelsh(aparkerpoe.com 

By: JM ß4cW 

Terr Martin
 

Federal Trade Commission 

601 New Jersey Avenue, NW 

Washington, DC 20001 

Telephone: (202) 326-3488 

tmartin(qftc.gov