ORJGINAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also dlb/a 

Enviroplastics International 

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Docket No. 9358 

PUBLIC 

AUG 0 1 2011, 

EZttofJ 1 

COMPLAINT COUNSEL'S OPPOSITION TO RESPONDENT'S RENEWED MOTION 

FOR IN CAMERA TREATMENT OF PROPOSED TRIAL EXHIBITS 

Complaint Counsel and Respondent ECM Biofilms, Inc. ("ECM") agree regarding 

certain points; however, we file this Opposition to emphasize three important respects in which 

ECM still substantially overreaches. First, ECM' s conclusory declaration offers no reason why 

documents often dozens of pages long must be concealed from public view when rarely more 

than a few words (such as prices) are even arguably confidential. 1 Second, Complaint Counsel 

objects to any in camera treatment for CX-6762 -which is a crucial document in this case and 

damaging to ECM-but not confidential. Third, ECM fails to establish the requisite "clearly 

defined, serious injury" from the public treatment of deposition excerpts that, at very most, 

contain a few lines of confidential material irrelevant to this case. 

LEGAL STANDARD 

As this Court explained last week, ECM must "'make a showing that the information 

concerned is sufficiently secret and sufllciently material to their business that disclosure would 

result in serious competitive injury."' Order (July 23, 2014) (quoting In re General Foods 

Corp., 95 F.T.C. 352, !80 FTC LEXIS 99, *10 (Mar. 10, 1980)); see also In re Bristol-Myers 

Co., 90 F.T.C. 455, 1977 FTC LEXIS 25, *5 (Nov. 11, 1977) (outlining six factors relevant to 

whether the movant has established materiality and necessity). The Court also noted that, 

1 See Rule 3A3(b) (affording the Court the power to give in camera treatment to 

"portions" of documents). 

2 See Motion at 6 and n.l2 (noting that "Complaint Counsel does not consent to in 

camera treatment ofthis document," but providing no analysis as to why "a discussion between 

ECM and one its distributors on how to obtain specific types of customers" would cause a 

"clearly defined, serious injury" to ECM). 
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although certain business records may receive public treatment, there is a "'substantial public 

interest in holding all aspects of adjudicative proceedings, including the evidence adduced 

therein, open to all interested persons."' !d. at 2 (quoting In re Hood & Sons. Inc., 58 F.T.C 

1184, 1961 FTC LEXIS 368, *5-*6 (Mar. 4, 1961 )). Such sunshine "provides guidance to 

persons affected by Commission actions," "promotes public understanding of decisions at the 

Commission," and helps "deter[] potential violators." See id. For these sound reasons, ECM has 

the "heavy burden"3 to establish that disclosure would cause "clearly defined, serious injury." 

See Rule 3.45(b). Significantly, the Court cautioned ECM that, although the declaration attached 

to its prior motion asserted generally that disclosure would cause injury, it "does not explain 

how or why, or provide sufficient information to evaluate the materialitv or secrecy using 

any ofthe factors set forth in Bristol-Myers." Order (July 23, 2014) at 3 (emphasis added). 

ARGUMENT 

I. ECM's New Conclusory Declaration Is No More Adequate Than Its First One. 

Although ECM's new declaration requests confidential treatment for fewer documents 

than its last one, there is still no explanation of "how or why" disclosure will cause clearlydefined, serious injury, nor does the new declaration provide "sufficient information to evaluate 

the materiality or secrecy" in accordance with Commission law. In fact, most operative 

paragraphs of the new declaration merely contain a few extra words. For instance, the old 

declaration paragraph supporting the alleged confidentiality ofCCX-395 and the new declaration 

paragraph referencing the san1e document are identical save the addition of one conclusory 

3 It is Respondent's "heavy" burden to prove that the information is a trade secret or 

otherwise confidential-the public interest in open proceedings is presumed. Miller v. Indiana 

Hasp., 16 F.3d 549, 551 (3d Cir. 1994) (characterizing the burden as "heavy" and emphasizing 

that the "strong presumption of openness does not permit the routine closing of judicial records 

to the public"); see also United States v. Pickard, 733 FJd 1297, 1302 (lOth Cir. 2013) 

(assigning the burden to "[t]he party seeking to overcome the presumption of public access"). 

Respondent must "make a clear showing that the information concerned is sufficiently secret and 

sufficiently material to their business that disclosure would result in serious completive injllry." 

In re General Foods Corp., 95 F.T.C. 352, 1980 FTC LEXIS 99, at *10 (Mar. 10, 1980). 

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sentence: "ECM' s competitors could use such information to get an unfair advantage,',4 Other 

declaration paragraphs are boilerplate apparently pasted from one paragraph to the next5 

Additionally, the Court's Order denying ECM's initial in camera motion made clear that 

confidentiality was only appropriate for documents "of reasonable length": 

Respondent will not be required to redact confidential information from 

individual exhibits and may seek in camera treatment for entire exhibits, other 

than for deposition transcripts, provided such exhibits are of reasonable length. 

Order (July 23, 2014) at 4 (emphasis added). However, the majority of exhibits ECM's motion 

addresses are call lengthy log excerpts (in on case, more than 1 00 pages), or compilations of 

vaguely related emails to different parties.6 In many cases, the exhibits already contain 

redactions removing ECM's prices or Ct!Stomer's order volume, neither of which is relevant to 

this case. ECM's conclusory declaration utterly fails to establish why dozens of pages of 

information is allegedly confidential when redacting a few irrelevant characters (price or order 

volume) solves the problem? See, e.g., In re Union Oil Co. of Cal., 2004 FTC LEXIS 223, *4 

(Nov. 22, 2004) ("Requests for in camera treatment shall be made only for those pages of 

documents or of deposition transcripts that contain information that meets the in camera 

standard.") (emphasis added). 

II. CCX-676 Is Both Critical and Non-Confidential. 

This document contains a conversation between ECM and an international distributor in 

which ECM advises the distributor to focus on a certain class of companies that "should be easier 

4 Compare R. Sinclair Dec. (July 8, 2014) 'lf9(h), with R. Sinclair Dec. (July 30, 2014) f 

9(e). 

5 See, e.g., R. Sinclair Dec. (July 30, 2014) 'lf!O(a)-(n) (fourteen nearly identical short 

paragraphs purporting to justify the nondisclosure of fourteen documents). Although ECM 

provides marginally more information for RX-132, RX-330, RX-331, and CCX-234, Complaint 

Counsel has consented to in camera treatment of those documents. 

6 See, e.g., CCX-422 (86 pages); CCX-410 (40 pages); CCX-419 (32 pages); CCX-420 

(118 pages); RX-130 (34 pages of separate emails); RX-132 (21 pages of separate emails). 

7 Complaint Counsel consents to such redactions. During the parties' meet and confer, 

ECM's counsel indicated that ECM would make such redactions; however, ECM moved to have 

the entire documents placed in camera anyway. 

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to sell [to]."8 ECM uses a common metaphor to characterize this class of businesses in contrast 

to those outside the class. 9 Significantly v.~th respect to the merits, ECM states that it "currently 

employs" this approach. 10 Most important here, however, in the correspondence itself-which is 

four years old- ECM does not identify any particular company or set of companies as potential 

clients. ECM's distributor focuses on one international firm, but ECM counsels against selling 

to that finn because it falls outside of the general class of potential customers that ECM 

recommends pursuing-and still pursues. Regardless, the class of companies that ECM suggests 

are "easier to sell [to]" includes tens of thousands of businesses, making the suggestion much too 

general to constitute a legally cognizable "trade secret." 

Furthermore, although ECM characterizes the approach CCX-672 articulates as a 

business strategy, ECM's perfunctory declaration provides no information at all regarding "how 

or why" disclosing this approach would produce a "clearly defined, serious injury," nor is there 

any information (let alone sufficient information) to enable the Court "to evaluate the materiality 

or secrecy" of this approach. See Order (July 23, 2014) at 3 (emphasis added). As such, ECM's 

request to keep this probative document confidential should be denied. 

III. ECM Has Not Established That Disclosing Deposition Excerpts Would Cause 

"Clearly Defined, Serious Injury." 

ECM' s declaration addresses deposition transcripts with a sweeping generality: they 

allegedly contain information "related to sales, customers, and other sensitive and personal 

information."1 1 However, the declaration again provides no detail at all regarding how 

disclosing the unidentified "sensitive ... information" would seriously injure ECM in some 

"clearly defined" way. The only example given is that customers could use the information "to 

8 CCX-676 at 1. 

9 See id. 

10 R. Sinclair Dec. (July 30, 2014) 1!10(a). 

11 R. Sinclair Dec. (July 30, 2014) 111 0( o ). Complaint Counsel consents to the redaction 

of employees' personal information, the number of customers ECM has, ECM's financial 

information, and ECM's product formula (to the extent not already disclosed). See, e.g, Joint 

Stipulation~ 8 (stipulating that the ECM additive is biodegradable). 

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take business away from ECM." 12 Parroting back the standard along with a general business 

harm assertion is clearly insufficient to satisfy ECM's "heavy burden" to establish "clearly 

defined, serious injury." Rule 3.43(b); see also Wall Indus., Inc. v. United States, 5 Cl. Ct. 485, 

487 (1984) ("[I]t is axiomatic that nebulous and conclusory allegations of confidentiality and 

business harm are insufficient to carry the movant's burden.") (citations omitted); Beastie Boys 

v. Monster Energy Co., 983 F. Supp.2d 354, 368 (S.D.N.Y. 2014) ("The Court will not accept 

corrclusory claims of the need for confidentiality[.]"). 

Additionally, the deposition excerpts identified include subjects that are obviously not 

trade secrets (for instance, what "each ECM employee does"), statements about marketing or 

sales processes too vague or general to constitute a trade secret, and general-but important and 

already public--characterizations of ECM' s customer base. As the Court is well aware, ECM 

has repeatedly and publicly trumpeted the supposed fact that its customers are sophisticated 

businesses that construe its claims to mean something rnore nebulous than the words expressly 

mean. See, e.g., ECM's (Public) Trial Brief (July 30, 2014) at 83 (making arguments under a 

subheading thf!t reads, "The ECM Customer: A Sophisticated Corporation, Not an End-Use 

Consumer.") (emphasis added). Accordingly, ECM's characterizations of its customers are 

clearly not confidential. 

Finally, the proposed redactions affect meaningful portions ofeach of the deposition 

transcripts of the employees ECM represents it will call live. Thus, if the deposition transcripts 

potentially necessary for impeachment receive in camera treatment, then at least some portion of 

the cross-examination of ECM' s witnesses may have to occur in camera as well. This creates a 

distorted proceeding in which ECM's carefully controlled direct examinations of its employees 

will take plac.e publically, but relevant portions of the cross-examination ofthose same witnesses 

will be hidden. 

12 R. Sinclair Dec. (July 30, 2014) '1!10(o). 

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Overall, this is a false advertising case that does not involve genuine trade secrets or 

sensitive personal infonnation like some other FTC actions do. We respectfully request that the 

public's right to access this Court's proceedings continue as unencumbered as the law will 

pennit. 

CONCLUSION 

For the foregoing reasons, the Court should deny those portions ofECM's motion to 

which Complaint Counsel has not consented. 

Dated: August 1,2014 

6 

Respectfully submitted, 

Ka nhe Johnson (kjohnson3@ftc.g0v) 

.Jonathan Cohen Gcohen2@ftc.gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N. W. M-81 02B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; 

Fax: 202-326-2551 
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CERTIFICATE OF SERVICE 

I hereby certify that on August 1, 2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

One electronic copy to the Office of the Secretary, one hard copy, and one copy through the 

FTC's e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: seeretazy@fte.gov 

One electronic copy and one hard copy to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Bethany Kennedy 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: bkennedy!alemord.com 

Date: August 1, 20 I 4 

7 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Eric J. Awerbuch 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuchlalemord.com 

· e Johnson (kjohnson3@ftc.gov) 

athan Cohen (jcohen2@ftc,gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747 

Fax: 202-326-2551