ORIGINAL
 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRAE COMMISSION
 

) PUBLIC
 

In the Matter of
 )
 

) Docket No. 9327
 

Polypore International, Inc.
 )

a corporation. ) 

) 

RESPONSE TO RESPONDENT'S MOTION TO 

REOPEN THE HEARNG RECORD 

On August 19,2009, the day of closing argument in this matter and nearly three weeks after 

completion of post-hearng briefing, Respondent filed this motion to reopen the hearing record to 

admit exhibit PX3016. Respondent has not shown good cause for reopening the record, as required 

by 16 C.F.R. § 3.51(e), and therefore the motion should be denied. 

Complaint Counsel used PX3016 at the hearng on May 19, 2009, to impeach Mr. Toth's 

testimony that Polypore has been suffering financially. (Toth, Tr. at 1641-1647). Because 

Complaint Counsel introduced the exhibit for impeachment puroses, Complaint Counsel was not 

required to disclose the exhibit to Respondent's counsel in advance. Complaint Counsel 

subsequently moved to enter PX3016 into evidence. (Toth, Tr. at 1647). Notably, Respondents 

then objected to the exhbit, and Your Honor stated that Complaint Counsel should inform 

Respondent of the basis for admissibility of the document, and the two sides should confer as to its 

admissibility. (Toth, Tr. at 1653-1654). Complaint Counsel never reoffered the exhbit or asked 

for a ruling from Your Honor. 

Rather, Complaint Counsel consistently demonstrated to Respondents that PX3016 was not 

in evidence. Complaint Counsel's Exhibit Index, served on July 10, 2009, and the final set of 

exhibits submitted to the Administrative Law Judge after conference with Respondent, did not 
include PX3016. In addition, Complaint Counsel did not, and indeed, could not, rely upon PX3016 

in its Findings of Fact, or to respond to Respondent's Findings of Fact. See Order on Post Trial
 

Briefs, at 2 ("Do not cite to documents that are not in evidence. . . ."). 

Respondent's failure to recognize that PX3016 was not admitted until long after the close of 

the hearng record on June 22,2009, does not warrant reopening the record. Section 3.51(e) ofthe 

Commission's Rules permits reopening of 
 the record only upon a showing of good cause (a 

standard that Respondent left out of its quotation of 
 the rule). See 16 C.F.R. § 3.51(e) ("(a)t any 

time prior to the filing of 
 his initial decision, an Administrative Law Judge may reopen the 

proceeding for the reception of 
 further evidence/or good cause shown."). Moreover, admitting 

PX3016 at this late date wil prejudice Complaint Counsel which did not have the opportity to
 

rely on the exhbit in its submissions to the Court. The proper course of action is that followed by 

this Court in Chicago Bridge - the Cour should not reopen the record to admit PX3016, and 

citations to PX3016 in post-tral pleadings should be disregarded. See In re Chicago Bridge & Iron, 

Order Granting Respondents' Motion to Strike, at 2 ("As to the documents that were not admitted 

as exhibits, there can be no dispute that reference to these documents in any post tral pleading is 

improper and they wil be disregarded."). 

Dated: August 24, 2009 

J. Robert Roberson 

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 

rrobertson(qftc. gov 
CERTIFICATE OF SERVICE 

I hereby certify that on August 24,2009, I filed via hand and electronic mail delivery an 

original and two copies of 
 the foregoing Response to Respondent's Motion to Reopen the Hearing 

Record with: 

Donald S. Clark, Secretary 

Offce of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

I hereby certify that on August 24, 2009, I served via hand and electronic mail delivery two 

copies of 
 the foregoing Response to Respondent's Motion to Reopen the Hearng Record with: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oal i (cftc. gOV 

I hereby certify that on August 24,2009, I served via electronic mail and first class mail 

delivery a copy of 
 the foregoing Response to Respondent's Motion to Reopen the Hearng Record 

with: 

Wiliam L. Rikard, Jr. 

Eric Welsh 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiliamrkard(qparkerooe.com 

eric. welsh(qparkerpoe.com 

By:7kL.'~ Noah Flessel 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2712 

nflessel(qftc. gov