JUL 2 2 20%

52043

SECRETA

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

)
In the Matter of }
ECM BioFilms, Inc., ) Docket No. 9358
a corporation, also d/b/a )
Enviroplastics International } PUBLiC

COMPLAINT COUNSEL’S OPPOSITION TO RESPONDENT’S MOTION FOR
LEAVE TC FILE A REPLY

Shortly after 5:00 PM, ECM served Complaint Counsel with a motion for leave to file a
reply regarding ECM’s motion to either recess the trial or call Dr. David Stewart out of order, at
the beginning of our case. We oppose the motion for leave to file a reply because the proposed
reply does not satisfy Rule 3.22(d), and is essentially another merits brief. We disagree with
many claims made therein and—although we believe the Court has a sufficient record to resolve
the instant dispute—we would welcome the opportunity to submit further briefing, should the
Court find that necessary or helpful.

We raise one further issue not apparent from ECM’s proposed filing. ECM’s proposed
reply trumpets our alleged failure to attach ECM’s response to an email proposing an additional
alternative to Dr. Stewart’s testimony beyond the one we initially raised during the parties’ meet
and. confer on the subject. See Proposed Reply at 3 (“In a response email sent that same day
(and conspicuously not included in Complaint Counsel’s exhibits to this Court), ECM explained
how Complaint Counsel’s offer is extremely prejudicial.”) (citing RX-C) (ECM’s emphasis).

The reason that Complaint Counsel did not attach this email is because we never received
it. In fact, based on recent communications between the parties, it became apparent to ECM’s
counsel that certain emails from ECM were not reaching us. At 3:29 PM, ECM’s counsel left us
a voicemail stating that “it seems like maybe you’re not receiving emails from my address,” and
offering to help resolve the issue. ECM filed its Proposed Reply anyway. The parties have since

communicated regarding the IT problem, which both sides are attempting to understand and



PUBLIC DOCUMENT

address. However, ECM’s implication that Complaint Counsel intentionally omitted RX-C was

both premature and incorrect.

Dated: July 21, 2014 Respectfully submitted,

¢ Johnson (kjohnson3 @fic.gov)
athan Cohen (jcohen2@fitc.gov)
Arturo DeCastro (adecastro@ftc. gov)
Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580

Phone: 202-326-2185; -2551; -2747;
Fax: 202-326-2558


PUBLIC DOCUMENT

CERTIFICATE OF SERVICE

Thereby certify that on July 21, 2014, I caused a true and correct copy of the foregoing to
be served as follows:

One electronic copy and one hard copy to the Office of the Secretary, 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: secretary@ftc.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 Peter Arhangelsky
Emord & Associates, P.C. Emord & Associates, P.C.
11808 Wolf Run Lane 3210 S. Gilbert Road, Suite 4
Clifton, VA 20124 Chandler, AZ 85286
Email: jemord@emord.com Email: parhangelsky@emord.com
Lou Caputo Eric J. Awerbuch
Emord & Associates, P.C. Emord & Associates, P.C.
3210S. Gilbert Road, Suite 4 3210 S. Gilbert Road, Suite 4
Chandler, AZ 85286 Chandler, AZ 85286
Email: leaputo@emord.com Email: eawerbuch@emord.com

I further certify that I possess a paper copy of the signed original of the foregoing
document that is available for review by the parties and the adjudicator.

Date: July 21, 2014

rine Johnson (kjohnson3 @fic.gov)
fonathan Cohen (jcohen2@ftc. gov)
Arturo DeCastro (adecastro@fitc.gov)
Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580

Phone: 202-326-2185; -2551; -2747;
Fax: 202-326-2558