"Ø--7J'~D4'~:'~;:,:,."", /' .\'j f;t. ,Rh.. ,_ i,,,j¡i/iii "~,., ORIGINAL / _.'t "r . 'YI'illl~, "'..

t~~- ;tfL;"SÕ0)' UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION ~/ 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

RESPONDENT'S MOTION TO REOPEN THE HEARING RECORD 

INTRODUCTION 

Pursuant to 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." 

16 C.F.R. § 3.51(e). On the sixth day of trial, Complaint Counsel moved to offer PX3016 into 

evidence. (Toth, Tr. 1647, 1652). At that time, due to the fact that Complaint Counsel had not 

listed PX3016 as an exhibit on its exhibit list for Mr. Toth, Respondent's Counsel objected to the 

admissibilty ofPX3016. The Court deferred ruling until Complaint Counsel told Respondent's 

Counsel the basis for its admissibility and Respondent had an opportunity to review the exhibit. 

(Toth, Tr. 1647, 1653). In the press of trial, neither Complaint Counsel nor Respondent
 

remembered to bring the document's admission back to the Court's attention. Upon the
 

conclusion of the hearing, and at the time the record was closed by Order dated June 22, 2009, 

Respondent's objection and the admissibilty of PX3016 remained pending. Respondent does 

not object to admission ofPX3016 as evidence. As rulings on all objections must appear on the 

record pursuant to 16 C.F.R. 3.43(e), Respondent respectfully requests that the Court reopen the 

hearing record so as to rule on the admissibility ofPX3016. 

PPAB 1594634vl 
ARGUMENT
 

On May 19, 2009, during the redirect examination of Robert Toth ("Toth"), Complaint 

Counsel attempted to introduce and admit PX3016 into evidence. (Toth, Tr. 1647). 

Respondent's Counsel objected to the admissibility of PX3016 on the basis that the document 

had only been presented to Respondent's Counsel earlier that same day!. (Toth, Tr. 1647). In 

response, Complaint Counsel asked the Cour to defer ruling on the admissibility of PX3016 

until Respondent's Counsel had an opportunity to review the exhibit. (Toth, Tr. 1647). During 

the re-cross examination of Toth by Respondent's Counsel, Toth offered testimony about 

PX3016. (Toth, Tr. 1648-51). Complaint Counsel objected to aspects of Toth's testimony about 

PX30L6. (Toth, Tr. 1652). In response to Complaint Counsel's objection, the Court stated, "you 

made a formal offer of this exhibit in evidence. Do you want me to strike all testimony 

regarding this document or do you want to allow (Toth) to look at it and talk about it? Pick one." 

(Toth, Tr. 1652). Complaint Counsel withdrew their objection and Toth continued to testify 

about PX3016. (Toth, Tr. 1652-1653). As Toth continued to testify, the Cour interjected and 

asked Respondent's Counsel the following: 

The Court: Mr. Rikard, are you going to continue to object to the admission of this 

document? 

A: Until I have an opportunity to review it, yes, Your Honor. 

The Cour: I would like for Mr. Robertson to inform you what his basis of 

admissibilty is, and you two discuss whether you are going to object or 

not. 

A: All right, I appreciate that. Thank you, Your Honor.
 

The Court: I didn't mean right now. I mean after we're done.
 

A: Right. 

i Pursuant to an agreement between Complaint Counsel and Respondent's Counsel, all exhibits had to be provided to 

the opposing side 24 hours in advance of their use at triaL. 

2 

PPAB 1594634vl 
(Toth, Tr. 1653-54). 

This discussion occurred near the conclusion of Mr. Toth's testimony at the end of the 

day. Another witness was called to the stand beginning the next morning and the matter of the 

admissibility of PX3016 did not come up again and was overlooked through the conclusion of 

the hearing. Complaint Counsel never withdrew their motion to admit PX3016 into evidence. In 

the busy course of trial, Respondent's Counsel did not realize the admissibility of PX3016 

remained unsettled or that Complaint Counsel had failed to include PX3016 on its Exhibit Index. 

Because both Complaint Counsel and Respondent used PX3016 in the examination of 
 Mr. Toth, 

Respondent cited to PX3016 in several Proposed Findings of Fact. When Complaint Counsel 

objected to those Proposed Findings of Fact on the basis that PX3016 had not been admitted into 

evidence, Respondent realized that the admissibility ofPX3016 had not been finalized. 

Respondent has no objection to PX3016 and withdraws its objection based on Complaint 

Counsel's failure to give timely notice of its use. Further, given the extensive testimony of Mr. 

Toth about the contents of PX3016 in response to questions from both Complaint Counsel and 

Respondent's Counsel and the fact that Complaint Counsel offered PX3016 into evidence. 

Respondent submits that the interests of fairness and 
 justice are such that PX3016 be admitted as 

part of the record. 

CONCLUSION 

Because this question regarding PX3016's status remains pending, Respondent 

respectfully requests that the Cour reopen the record under 16 C.F.R. § 3.51(e) and that PX3016 

be fully admitted into evidence. 

3 

PPAB 1594634vl 
Dated: August 19,2009 Respectfully Submitted, 

~~i~,fk~

Eric D. Welsh 

PARKR POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center
 

401 South Tryon Street, Suite 3000
 

Charlotte, NC 28202
 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689
 

wiliamrikard~parkerpoe.com
 

ericwelsh~parkerpoe.com
 

John F. Graybeal 

PARKR POE ADAMS & BERNSTEIN, LLP 

150 Fayettevile Street
 

Raleigh, NC 27602
 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

joOOgraybeal~parkerpoe.com 

Attorneys for Respondent 

PPAB 1594634vl 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of ) Docket No. 9327

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

STATEMENT PURSUANT TO SCHEDULING ORDER 

I, Eric D. Welsh, Esq., on behalf of Parker Poe Adams & Bernstein LLP ("Parker Poe") 

as counsel for Polypore International, Inc. ("Polypore"), hereby represent that Parker Poe has 

conferred with Complaint Counsel in an effort in good faith to resolve by agreement the issues 

raised by Respondent's Motion To Reopen The Hearing Record, and has been unable to reach 

such an agreement. 

Dated: August 19,2009 Respectfully Submitted, 

0). fu~
 Eric D . Welsh 

PARKER POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

ericwelsh~parkerpoe.com 

PPAB 1594634vl 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

PROPOSED ORDER GRANTING RESPONDENT'S MOTION 

TO REOPEN THE HEARING RECORD 

IT is ORDERED THAT, upon due consideration, Respondent Polypore International, 

Inc.'s Motion to Reopen the Hearing Record is hereby GRANTED and PX3016 is hereby 

admitted into evidence and made a part of the hearing record. 

D. Michael Chappell 

Administrative Law Judge 

Date: 

PPAB 1594634vl 
CERTIFICATE OF SERVICE
 

I hereby certify that on August 20, 2009, I caused to be fied via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Respondent's Motion to 

Reopen the Hearing Record, and that the electronic copy is a true and correct copy of the paper 

original and that a paper copy with an original signature is being filed with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary~ftc. gov 

I hereby certify that on August 20, 2009, I caused to be served one copy via electronic 

mail delivery and two copies via hand delivery of the foregoing Respondent's Motion to Reopen 

the Hearing Record upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj~ftc.gov 

I hereby certify that on August 20, 2009, I caused to be served via hand delivery and 

electronic mail delivery a copy of the foregoing Respondent's Motion to Reopen the Hearing 

Record upon: 

1. Robert Robertson, Esq. Steven Dahm, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rrobertson~ftc.gov sdah~ftc.gov 

BriR~iCh ?J~ ¿


Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 334-4706 

7 

PPAB 1594634vl