ORIGINAL
 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERA TRAE COMMISSION
 

) PUBLIC
 

In the Matter of
 )
 

) Docket No. 9327
 

Polypore International, Inc.
 )
 a corporation.
 ) 

) 

RESPONSE TO RESPONDENT'S MOTION FOR 

OFFICIAL NOTICE OF RECENT ACQUISITION OF DOUGLAS BATTERY BY 

ENERSYS 

In its request for Official Notice ofEnerSys' recent purchase of 
 Douglas Battery, 

Respondent suggests the Court make improper inferences based on EnerSys' related 8K fiing. 

1 , Rule 3.43(d) of Like its F.R.E. counterpart the Federal Trade Commission Rules of Practice has 

been interpreted to allow taking offcial notice of facts not subject to reasonable dispute. While 

the fact that the S.E.C. fiing exists is not subject to reasonable dispute, arguments or inferences 

related to the fact of the fiing are, however, subject to dispute.2
 

By seeking offcial notice of EnerSys' 8K, Respondent attempts to bolster its power buyer 

argument with facts which are not part of the record and therefore not subject to cross 

examination. As noted by the Administrative Law Judge in the Rambus matter cited by 

respondent, "offcial notice may not be used as a method to engage in any interpretation of the 

1 F .R.E. 201 (b) states "A judicially noticed fact must be one not subject to reasonable dispute in 

that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) 

capable of accurate and ready determination by resort to sources whose accuracy cannot 

reasonably be questioned." 2 Respondent's argument that powerful buyers can discipline Daramic in the event of an 

anticompetitive price increase is disputed by Complaint Counsel and its position has been 

comprehensively briefed for this Court. 

1 
subject matter. ~ . ." In re Rambus, 2003 WL 22064718 (FTC Aug. 27, 2003). 

This limited nature of official/judicial notice is well established. In Kushner v. Beverly 

Enterprises, the Eighth Circuit used similar language when a defendant attempted to use judicial 

notice to further argue its position. Kushner v. Beverly Enterprises, Inc., 317 F.3d 820,832 (8th 

Cir. 2003). There, the issue was whether the trial judge erred when he refused to judicially 

notice certain SEC fiings the defense had requested. The Circuit Court held that the trial court' 

refusal was proper because the documents were offered for the truth of the matters asserted 

within them, and the facts and inferences that the defense was attempting to establish were in 

dispute. Id. 

CONCLUSION 

Respondent's motion improperly makes inferences concerning Enersys' supposed 

purchasing power based on the mere fact of its 8K filing. As shown above, this is an improper 

use of 
 Rule 3.43(d) and Respondent's motion should be denied accordingly. In the event that 

Your Honor decides to take official notice of 
 the 8k filing, it is Complaint Counsel's position 

that such notice should be limited to the fact of the fiing, which is not disputed, but exclude all 

inferences and arguments Respondent has made in reference to this fiing.3 

3 In so far as Respondent presents an issue material to the power buyer argument it promoted at 

trial, it is worthwhile to highlight for Your Honor that EnerSys' purchase of Douglas battery has 

done nothing to alter the competitive landscape for industrial battery separators in North 

America. Thus, any inference to the contrary is completely refuted by the evidence in this case. 

For example, both EnerSys and Douglas Battery testified that Daramic was the only available 

supplier of industrial separators (e.g. motive and UPS) for flooded lead acid battery 

manufacturers in North America. (See Axt, Tr. 2101; Craig, Tr. 2611; Douglas, Tr. 4076). 

Moreover, eve industrial batte manufacturer lar e and small) called before Your Honor
 

testified that industrial separators for flooded
 

lead acid batteries. (See Gilespie, Tr. 5829, in camera (Exide); Balcerzak, Tr. 4127-4128 

(Crown Batteries); Craig, Tr. 2611 (EnerSys); Lesiter, Tr. 4027-4028 (East Penn); Benjamin, Tr. 

2 
Dated: Januar 22,2010 Respectfully submitted,
 

~.6~on dA~
 

Complaint Counsel
 

Bureau of Competition 

Federal Trade Commission 

600 Pennsylvania Ave, NW (H-374) 

Washington, DC 20580 

Telephone: (202) 326-2008 

Facsimile: (202) 326-2214 

3522,3526,3533 (Bulldog Battery). EnerSys' acquisition of 
 Douglas does absolutely nothing to 

change this crucial fact. 

3 
CERTIFICATE OF SERVICE 

I hereby certify that on Januar 22,2010, I fied via hand and electronic delivery an 

original and two copies of the foregoing Complaint Counsel's Response to Respondent's Motion 

for Official Notice of Recent Acquisition of 
 Douglas Battery by EnerSys with: 

Donald S. Clark, Secretary 

Office of the Secretar 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-159 

Washington, DC 20580 

I hereby certify that on Januar 22, 2010, I filed via hand and electronic mail delivery 

two copies of the foregoing Complaint Counsel's Response to Respondent's Motion for Official 

Notice of Recent Acquisition of 
 Douglas Battery by EnerSys with: 

The Honorable D. Michael Chappell
 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvana Avenue, NW 

Washington, DC 20580 

oali~ftc.gov 

I hereby certify that on Januar 22,2010, I filed via electronic and first class mail 

delivery a copy of the foregoing Complaint Counsel's Response to Respondent's Motion for
 

Official Notice of Recent Acquisition of 
 Douglas Battery by EnerSys with: 

William L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, Nort Carolina 28202 

wiliarkard~parkerpoe.com 

ericwelsh~parkerpoe.com 

By: ~ T em Marin 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-3488 

tmarin~ftc.gov 

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