ORIGINAL
 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

)
 In the Matter of
 )
 

) Docket No. 9327
 

Polypore International, Inc.
 ) PUBLIC a corporation. ) 

) 

COMPLAINT COUNSEL'S RESPONSE TO
 

RESPONDENT'S MOTION FOR A MORE DEFINITE STATEMENT
 

Respondent's ("Polypore's") motion for a more definite statement lacks merit. The 

complaint plainly sets forth Polypore's unlawful conduct. Cf. Fruehauf 
 Trailer Co., 53 ET.C. 

1269, 1270 (1956). The facts are straightforward and the law is well established. 

Polypore's acquisition of 
 Microporous Products, L.P. ("Microporous") in February 2008 

gave its operating subsidiary ("Daramc") a world-wide monopoly in sales of separators for 

deep-cycle batteries, which are used primarly in golf cars and floor scrubbers. Microporous 

was the only other supplier of deep-cycle separators on Earh. Compl.'l'l 2,8, 15,22.
 

In addition, Daramic gained monopolies in North America in sales of separators for motive 

(heavy-duty industrial) batteries, id.'l'l 9, 16-17,23, and separators for uninterrpted power 

supply batteries. ld. 'I'l 11, 16,25. Microporous was Daramic's sole competitive threat in those 

markets. Id.l)l) 15-19. 

Daramc also acquired or maintained a North American duopoly (with Entek International 

LLC) in sales of separators for automotive batteries. Microporous was marketing and testing a 

new separator to compete directly with Daramic and Entek, and but for the acquisition, 

Microporous would have been a significant competitor in that market. ld.'l'l 10, 23,28-29. 
(Alternatively, if the relevant market is defined as polyethylene-based separators sold in North 

America, the merger likewise reduces the number of sellers from three to two. ld.'l 25.) 

Other anticompetitive conduct predates the merger. In 2001, Daramic and Hollngsworth 

& V ose, which makes glass battery separators, formed a classic horizontal agreement in restraint 

of trade. The two firms agreed not to enter one another's product markets for a period that 

extends, at present, through 2014. Id.'l 41. And in 2006 and 2007, when customers sought to 

buy separators from Microporous, which was expanding its capacity, Daramc successfully 

excluded Microporous by threatening to stop supplying those customers entirely. ld. 'l'l 40, 46. 

The har to competition is apparent. Moreover, Commssioners and Commission Staff 

discussed these issues repeatedly with Polypore's counsel during the pre-complaint 

. investigation. There can be nothing more definite than these simple allegations. 

Polypore asserts, nonetheless, that it "cannot deteimne from the pleading either the 

statutes it is accused of violating or the elements" of the offenses. Resp. Br. 6. Counts I, II, and 

il, however, each invoke Section 5 of the Federal Trade Commssion Act, 15 U.S.c. § 45; and 

Count I also invokes Section 7 of the Clayton Act, id. § 18. Compl.'l'l 48-53. Respondents' 

motion makes no sense. The complaint follows traditional Section 5 and Section 7 law. No 

more is required. The contours of the law are well established. E.g., FTC v. Cement lnst., 333 

U.S. 683, 690-95 (1948) ("(S)oon after its creation the Commssion began to interpret. . . §5 as 

including those restraints of trade which also were outlawed by the Sherman Act, and. .. this 

Court has consistently approved that interpretation of the Act."); Chicago Bridge & Iron Co. v. 

FTC, 534 F.3d 410,423-26 (5th Cir. 2008); North Tex. Spec. Phys. v. FTC, 528 F.3d 346,354-55 

(5th Cir. 2008); Polygram Holding Co. v. FTC, 416 F.3d 29,36-37 (D.C. Cir. 2005); FTC v. H.J. 

2
 
Heinz Co., 246 F.3d 708 (D.C. Cir. 2001); FTC v. Elders Grain, Inc., 868 F.2d 901, 906-07 (7th 

Cir. 1989) ("(A)n acquisition which reduces the number of significant sellers in a market already 

highly concentrated and prone to collusion by reason of its history and circumstances is unlawful 

(under Section 7) in the absence of special circumstances."). This complaint is quite clear that 

the acquisition violated Sections 5 and 7 and thus can be answered. 

Polypore's arguments about whether paragraphs 42 or 45 of the complaint state a claim for 

a "Sherman Act Section 2 monopolization offense" are simply irrelevant. Resp. Br. 2. There is 

no claim under the Sherman Act in this complaint, which is brought solely under Sections 5 

(FTCA) and 7 (Clayton Act). There is simply no express or implied attempt here to create new 

law. The law here is plain, simple and well established. 

Polypore's motion itself confirms that Polypore understands that it faces restraint of 
 trade, 

monopolization, and attempted monopolization claims under the FTC Act, and ilegal acquisition 

claims under the Clayton and FTC Acts. The complaint need only state the "legal authority and 

jurisdiction" for the claims, which must only be sufficiently clear so that the respondent can 

"frame a responsive answer based on the allegations contained in the complaint." 16 C.F.R. § 

3.11(b)(1) and (c); In re Fruehauf 
 Trailer Corp., 53 F.T.C. at 1269 (1956) ("Unless additional 

pariculars concerning matters of fact and law relied upon in support of a complaint are 

necessary to enable the pary to prepare his responsive pleading, request for that information 

ordinarly should be denied."); In re Rambus, Inc., dkt. 9302, Order Denying Motion For A More 

Definite Statement (July 9, 2002) (Timony, J.). There are no allegations that Polypore cannot 

3 
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follows established law. The addition of a new lead trial counsel, which both sides have now 

done, should not, in our view, delay any discovery or a hearng in this matter. 

Dated: September 30, 2008 Resp~ .~iil?mitted~ 

- ..
 

J. Robert Robertson 

Complaint Counsel
 

Bureau of Competition 

Federal Trade Commssion 

600 Pennsylvania Ave, NW (H-374) 

Washington, DC 20580 

Telephone: (202) 326-2008 

Facsimile: (202) 326-2214 
CERTIFICATE OF SERVICE 

I hereby certify that on September 30,2008, I fied via hand and electronic mail delivery 

an original and two copies of the foregoing Response to Respondent's Motion to Extend 

Respondent's Time to Respond to Complaint and To Set Date for Initial Scheduling Conference 

with: 

Donald S. Clark, Secretar 

Office of the Secretar 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

I hereby certify that on September 30, 2008, I fied via hand delivery two copies of the 

foregoing Response to Respondent's Motion to Extend Respondent's Time to Respond to 

Complaint and To Set Date for Intial Scheduling Conference with: 

The Honorable D. Michael Chappell 

Admnistrative Law Judge
 

Federal Trade Commssion 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

I hereby certify that on September 30, 2008, I fied via electronic mail delivery a copy of 

the foregoing Response to Respondent's Motion to Extend Respondent's Time to Respond to 

Complaint and To Set Date for Initial Scheduling Conference with: 

Willam L. Rikard, Jr. 

Parker, Poe, Adams & Bernstein, LL 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiliamrkard (gparkerpoe.com
 

~~ 7:~:n~ ~~nn~~' . . . 

Federal Trade Commssion 

600 Pennsylvania A venue, NW 

Washington, DC 20580 

Telephone: (202) 326-3638 

lcunningham (gftc.gov