Eleventh Circuit Upholds FTC’s Merger Ruling and Divestiture Order


In a recent ruling, reinforcing the Federal Trade Commission’s (FTC) aggressive merger policy, the United States Court of Appeals for the Eleventh Circuit upheld a FTC decision condemning a merger of two could-be rivals, and also rejected challenges to the FTC’s remedial order requiring complete divestiture. Polypore International, Inc. v. Federal Trade Commission, No. 11-10375, 2012 U.S. App. LEXIS 14195 (11th Cir. July 11, 2012). The decision is also noteworthy in its (and the FTC’s) treatment of the potential competition issue, the use of the anticompetitive presumption in such circumstances, and the questions of market definition raised in the case.

In 2008, Polypore International Inc. (Polypore), a manufacturer of components used in batteries and medical devices, acquired fellow battery separator company Microporous Products, LP (Microporous) for $76 million. The FTC filed an administrative complaint in September 2008 challenging the transaction. In particular, the Commission alleged that the deal substantially reduced competition in four distinct markets for battery separators: car batteries, golf cart batteries, motive batteries used in industrial equipment, and batteries used in uninterruptible power supplies. Battery separators are membranes installed between the positive and negative plates in flooded lead-acid batteries to prevent short circuits and to regulate the flow of electrical current between the plates.

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