PUBLIC DOCUMENT

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 ) 

 ) 

COMPLAINT COUNSEL’S RESPONSE TO 

RESPONDENT’S FIRST SET OF REQUEST FOR ADMISSIONS

 Pursuant to Rule 3.32 of the Federal Trade Commission’s Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent’s First Request for Admissions (“RFA”). 

GENERAL OBJECTIONS

1. Complaint Counsel objects to each RFA to the extent that it calls for information 

protected from discovery pursuant to sections 3.31(c)(2)-(4) of the Rules. 

2. Complaint counsel objects to each RFA to the extent it seeks information that is 

subject to the attorney-client privilege, the attorney work-product privilege, the investigative 

privilege, the non-testifying expert privilege, the deliberative privilege, the law enforcement 

privilege, the informant privilege, and the joint prosecution privilege, that is exempt from 

disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is protected from 

disclosure by the privilege for information given to the FTC on a Pledge of Confidentiality, that 

is protected from disclosure under principles of financial privacy, that is subject to a protective 

order from another litigation, or that is subject to other applicable legal protection or privilege. 

3. Complaint Counsel objects to each RFA to the extent it seeks information that is 

not relevant to the subject matter of the litigation and/or not reasonably calculated to lead to the 

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discovery of information relevant to the allegations of the complaint, to the proposed relief, or to 

Respondent’s defenses. 

4. Complaint Counsel objects to each RFA to the extent that it is overly broad, 

unduly burdensome, vague or ambiguous. 

5. Complaint Counsel objects to each RFA to the extent it is not relevant to the 

pending proceeding against Respondent and/or does not relate to statements or opinions of fact 

or of the application of law to fact, and thereby exceed the scope of Rule 3.32, governing 

admissions. 

6. By providing information in response to the RFA, Complaint Counsel does not 

concede that such information is relevant, material, or admissible in evidence. 

7. Complaint Counsel’s objections and responses to each RFA is based on 

information now known to Counsel. Complaint Counsel has not yet completed its discovery of 

the facts in this case or prepared for trial and therefore reserves its rights under the Commission’s 

Rules of Practice to amend, modify, or supplement its objections and responses if it learns of 

new information. 

8. This response addresses only information and materials collected or reviewed in 

the course of the investigation and prosecution of this case and that are in the possession, custody 

or control of the FTC Bureau of Consumer Protection. See FTC Rule 3.31(c)(2). Complaint 

Counsel objects to each RFA to the extent it seeks information outside this scope. 

9. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving these objections, Complaint 

Counsel provides the following responses. 
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SPECIFIC OBJECTIONS AND RESPONSES

RFA 1: 

That the FTC possesses evidence that ECM Plastics biodegrade.

RESPONSE TO RFA 1: 

Denied. Complaint Counsel objects to the request as argumentative, prejudicial, improper, 

incorrect, vague, and/or ambiguous particularly with respect to the terms “FTC,” “evidence,” “ECM 

Plastics,” and “biodegrade.” Denied also to the extent the Response depends on expert opinion 

before the time designated for identification of experts and issuance of expert reports. See Scheduling 

Order, Dkt. No. 9358 (Nov. 21, 2013). Complaint Counsel will disclose testifying experts and 

their reports, including the bases and reasons for their opinions, in accordance with § 3.31A of 

the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this case. 

RFA 2: 

Modern solid waste landfills in the U.S. are biologically active.

RESPONSE TO RFA 2: 

Denied. Complaint Counsel objects to the request as argumentative, prejudicial, improper, 

incorrect, vague, and/or ambiguous particularly with respect to the terms “Modern solid waste 

landfills” and “biologically active.” Denied also to the extent the Response depends on expert 

opinion before the time designated for identification of experts and issuance of expert reports. See 

Scheduling Order, Dkt. No. 9358 (Nov. 21, 2013). Complaint Counsel will disclose testifying 

experts and their reports, including the bases and reasons for their opinions, in accordance with 

§ 3.31A of the Commission’s Rules of Practice and the ALJ’s Scheduling Order in this case. 

RFA 3: 

The FTC and one or more attorneys at the FTC received a copy of the Article before 

February 14, 2014. 
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Response to RFA 3: 

Denied. Complaint Counsel objects to the request as argumentative, prejudicial, improper, 

incorrect, vague, and/or ambiguous particularly with respect to the terms “FTC” and “attorneys at the 

FTC.” Complaint Counsel first received a copy of the Article on February 14, 2014, at 8:07 p.m. 

Complaint Counsel is not aware of any other attorney at the FTC having received a copy of the 

Article.

RFA 4: 

On or before February 18, 2014, no FTC attorney had reviewed all documents 

revealing the sources of income of Dr. Ramani Narayan. 

RESPONSE TO RFA 4: 

Denied. Complaint Counsel objects to the request as argumentative, prejudicial, improper, 

incorrect, vague, and/or ambiguous particularly with respect to the terms “FTC attorney.” 

Complaint Counsel objects to the extent the RFA seeks information that is subject to the 

attorney-client privilege, the attorney work-product privilege, the investigative privilege, the 

non-testifying expert privilege, the deliberative privilege, the law enforcement privilege, the 

informant privilege, and the joint prosecution privilege, that is exempt from disclosure pursuant 

to confidentiality provisions set forth in the FTC Act, that is protected from disclosure by the 

privilege for information given to the FTC on a Pledge of Confidentiality, that is protected from 

disclosure under principles of financial privacy, that is subject to a protective order from another 

litigation, or that is subject to other applicable legal protection or privilege. 

RFA 5: 

On or before February 18, 2014, no FTC attorney had identified all past and present 

shares of stock owned by Dr. Ramani Narayan. 
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RESPONSE TO RFA 5: 

Denied. Complaint Counsel objects to the request as argumentative, prejudicial, improper, 

incorrect, vague, and/or ambiguous particularly with respect to the terms “FTC attorney.” 

Complaint Counsel objects to the extent the RFA seeks information that is subject to the 

attorney-client privilege, the attorney work-product privilege, the investigative privilege, the 

non-testifying expert privilege, the deliberative privilege, the law enforcement privilege, the 

informant privilege, and the joint prosecution privilege, that is exempt from disclosure pursuant 

to confidentiality provisions set forth in the FTC Act, that is protected from disclosure by the 

privilege for information given to the FTC on a Pledge of Confidentiality, that is protected from 

disclosure under principles of financial privacy, that is subject to a protective order from another 

litigation, or that is subject to other applicable legal protection or privilege. 

RFA 6: 

On or before February 18, 2014, no FTC attorney had identified all corporate 

offices ever held, directorhips ever held, trusteeships ever held, contracts ever executed by, 

and financial relationships involving Dr. Ramani Narayan. 

RESPONSE TO RFA 6: 

Denied. Complaint Counsel objects to RFA 6 on the grounds that it is overly broad, 

vague, and ambiguous, and is not relevant to the subject matter of the litigation and/or not 

reasonably calculated to lead to the discovery of information relevant to the allegations of the 

complaint, to the proposed relief, or to Respondent’s defenses. Complaint Counsel also objects to 

the request as argumentative, prejudicial, improper, incorrect, vague, and/or ambiguous particularly 

with respect to the terms “FTC attorney.” Complaint Counsel objects to the extent the RFA seeks 

information that is subject to the attorney-client privilege, the attorney work-product privilege, 

the investigative privilege, the non-testifying expert privilege, the deliberative privilege, the law 

enforcement privilege, the informant privilege, and the joint prosecution privilege, that is exempt 
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from disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is protected 

from disclosure by the privilege for information given to the FTC on a Pledge of Confidentiality, 

that is protected from disclosure under principles of financial privacy, that is subject to a 

protective order from another litigation, or that is subject to other applicable legal protection or 

privilege. 

RFA 7: 

There is no other consumer perception study/survey other than the APCO Study 

and Synovate Study possessed by the FTC concerning public perception of the rate at 

which biodegradation takes place.

RESPONSE TO RFA 7: 

Denied. Complaint Counsel objects to the request as argumentative, prejudicial, improper, 

incorrect, vague, and/or ambiguous particularly with respect to the term “FTC.” Denied also to the 

extent the Response depends on expert opinion before the time designated for identification of 

experts and issuance of expert reports. See Scheduling Order, Dkt. No. 9358 (Nov. 21, 2013). 

Complaint Counsel further objects to the extent this request calls for a legal analysis of relevant 

facts and claims as such information is protected by the attorney work product doctrine. 

Complaint Counsel will disclose testifying experts and their reports, including the bases and 

reasons for their opinions, in accordance with § 3.31A of the Commission’s Rules of Practice 

and the ALJ’s Scheduling Order in this case. Complaint Counsel objects to the extent the RFA 

seeks information that is subject to the attorney-client privilege, the attorney work-product 

privilege, the investigative privilege, the non-testifying expert privilege, the deliberative 

privilege, the law enforcement privilege, the informant privilege, and the joint prosecution 

privilege, that is exempt from disclosure pursuant to confidentiality provisions set forth in the 

FTC Act, that is protected from disclosure by the privilege for information given to the FTC on a 

Pledge of Confidentiality, that is protected from disclosure under principles of financial privacy, 
PUBLIC DOCUMENT 

that is subject to a protective order from another litigation, or that is subject to other applicable 

legal protection or privilege. Subject to and without waiver of the foregoing general and specific 

objections, Compllrint Counsel admits that in response to the FTC's request for consumer 

perception research in connection with proposed revisions to the Guides for the Use of 

Environmental Marketing Claims, the FTC received two consumer perception studies: APCO 

and Synovate, which are part of the public record. 

Dated: March 6, 2014 

7 

ne Johnson (20 

onathan Cohen (202 26-2551 

Elisa K. Jillson (202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mailstop M-8102B 

Washington, DC 20580 
PUBLIC DOCUMENT 

VERIFICATION OF KATHERINE JOHNSON 

I am an attorney of record in this matter and am authorized to make this verification for 

and on behalf of Complaint Counsel. I have read the foregoing Complaint Counsel's Response 

to Respondent's First Set of Request for Admissions, and am familiar with the contents thereof. 

The answers are true and correct to the best of my knowledge, information, and belief. 

I declare under penalty of perjury that the stat:em,entl""tlde 

and correct. 

March 6, 2014 

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PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on March 6, 2014, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel 's Response to Respondent First Set of Request for 

Admissions to be served as follows: 

One electronic copy to the Office of the Secretary, and one copy tlu-o11gh 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 

Emord & Associates, P .C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lo11 Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P.C. 

321 0 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

I further certify that I possess a paper copy of the signed original the foregoing document that 

is available for review by the parties and the adjudica 

March 6, 2014 

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