04 03 2014

569310

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

COMPLAINT COUNSEL'S MOTION FOR LEAVE TO FILE A RESPONSE 

TO ECM'S THIRD SUPPLEMENT TO ITS SECOND AND THIRD MOTIONS TO 

EXCLUDE THE OIDO STATE STUDY 

Complaint Cotinsel respectfully requests leave to file a short response (fewer than 650 

words) to the third supplemental filing Respondent ECM Biofilms, Inc. ("ECM") submitted on 

March 1. The proposed response is attached hereto. Because ECM raises a slightly different 

issue concerning a different communication than its four prior pending sanctions filings address, 

Complaint Counsel asks the Court for an opportunity to respond briefly. 

Dated: March 3, 2014 Respectfully Submitted, 

e Johnson (kjohnson3@ftc.gov) 

J than Cohen (jcohen2@ftc.gov) 

lisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

[PROPOSED] ORDER GRANTING COMPLAINT COUNSEL'S MOTION FOR LEAVE 

TO FILE A RESPONSE TO ECM'S THIRD SUPPLEMENT TO ITS SECOND AND 

THIRD MOTIONS TO EXCLUDE THE OHIO STATE STUDY 

This matter having come before the Administrative Law Judge on March 3, 2014, upon a 

Motion to Compel ("Motion") filed by Complaint Counsel seeking leave to file a 650-word 

response to ECM' s March 1, 2014 submission; 

And having considered Complaint Counsel's Motion and all supporting and opposing 

submissions, and for good cause appearing, Complaint Counsel's Motion is hereby GRANTED. 

SO ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

2 
PUBLIC DOCUMENT 

STATEMENT CONCERNING MEET AND CONFER 

The undersigned counsel certifies that Complaint Counsel (Jonathan Cohen) confe1Ted 

with Respondent's counsel (Lou Caputo) by telephone and email. We were unable to reach an 

agreement. Mr. Caputo explained that Respondent takes no position concerning this motion, but 

Respondent reserves the right to seek leave to file a surreply if new matter is raised. 

Dated: March 3, 2014 

3 

ohnson johnson3@ftc.gov) 

Jo Cohen (jcohen2@ftc.gov) 

E 1sa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on March 3, 2014, I caused a true and correct copy of the foregoing 

to be filed via the FTC E-File system and served as follows: 

One emailed courtesy copy to the Office of the Secretary: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One emailed courtesy 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-11 0 

Washington, DC 20580 

One emailed courtesy copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emord & Associates, P. C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P. C. 

3210 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 of the foregoing 

document that is available for review by the parties and the adjudicator. 

Dated: March 3, 2014 

4 

athe · ohnson (kjohnson3@ftc.gov) 

Jo an Cohen (jcohen2@ftc.gov) 

sa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

ORAL ARGUMENT REQUESTED 

COMPLAINT COUNSEL'S RESPONSE 

TO ECM'S THIRD SUPPLEMENT TO ITS SECOND AND THIRD MOTIONS TO 

EXCLUDE THE OHIO STATE STUDY 

Implicitly conceding that C.F.R. § 4.1 O(g) required the co1mnunications with Ohio State 

Study author Frederick Michel, Respondent ECM Biofilms, Inc. ("ECM") shifts theories, now 

accusing Complaint Counsel of allegedly interfering with a subpoena to Dr. Ramani Narayan, a 

Michigan State professor specializing in biodegradable polymers.1 This time, ECM points to a 

brief email to Dr. Narayan's prior counsel, and contends that this email "is not unlike the 'advice 

letters"' found impermissible in Price v. Trans Union, LLC, 847 F. Supp.2d 788 (E.D. Pa. 2012). 

However, the Price court based its decision on three factors, none of which are present here. 

First, in Price, the objecting party "requested that the third parties not comply with the 

subpoenas." !d. at 79 5. Unlike Price, Complaint Counsel's email does not instruct Dr. 

Narayan's prior attorney (George Brookover) not to comply.2 In fact, the email provides that our 

decision not retain Dr. Narayan as an expert "should make responding to the subpoenas much 

1 As with every scientist to have concluded that ECM's additive does not work- and 

there are many-ECM alleges that Dr. Narayan has "conflicts" that allegedly render his 

scientific assessments unreliable. See Third Supp. at 1. 

2 The email states that the subpoena is objectionable, but advising that a subpoena is 

objectionable is not the same as advising someone not to comply. In any event, although 

Complaint Counsel suggests (conectly) that Dr. Narayan could assert objections, the email does 

not advise Dr. Narayan's prior attorney to assert those objections. In fact, Dr. Narayan obtained 

new counsel, and those new attorneys will decide for themselves how to represent their client's 

interests most effectively. Although Dr. Narayan's new attorneys filed objections with the Court 

yesterday, Complaint Counsel has no objection if Dr. Narayan elects to respond to the subpoena 

fully including, for instance, ECM's demands for personal financial information. See Response 

& Objections (Apr. 1, 2014) at 9. 
PUBLIC DOCUMENT 

easier"-language that clearly contemplates a response. 3 In fact, there is no evidence that our 

communications with Mr. Brookover caused him to withhold anything, or that he objected to 

aspects ofECM's discovery for any reason other than his own views regarding how to best 

represent Dr. Narayan. 

Second, in Price, the movant established prejudice because "the Court was required to 

grant ... leave tore-subpoena the non-responding third parties before all of the requested 

infonnation was produced." Id. Unlike Price, the Court has not been forced to grant such leave, 

nor has ECM otherwise suffered any prejudice. Significantly, Dr. Narayan did produce 

documents to ECM on March 14-a fact that ECM's Third Supplement omits.4 

Third, in Price, "the objecting party stated that it would move to quash the allegedly 

defective subpoenas, but did not." !d. Unlike Price, Complaint Counsel's email does not inform 

(or misinform) a third party that we will move to quash. Accordingly, Price is inapplicable, and 

ECM's Third Supplement adds little to the various motions and supplements it filed already. 

Dated: April3, 2014 

o son (kjohnson3@ftc.gov) 

Jona Cohen (jcohen2@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; -3001 

Fax: 202-326-2551 

3 See Third Supp. Ex. A. ECM's nefarious implications are misguided. Complaint 

Counsel evaluated Dr. Narayan as a potential expert, as Mr. Brookover understood. Had we 

engaged Dr. Narayan, we would have been obligated to respond to the subpoena rather than Mr. 

Brookover-including the obligation to lodge objections on Dr. Narayan's behalf. The 

observations about the subpoena's scope occurred in the context of communications regarding 

Dr. Narayan's role, and Complaint Counsel's role as affected by Dr. Narayan's role. After 

Complaint Counsel chose not to engage Dr. Narayan, he hired other attorneys (the Miller 

Canfield firm) to lodge objections on his behalf. 

4 CX-A:l. 

2 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on April3, 2014, I caused a true and correct copy of the foregoing to 

be served as follows: 

One electronic copy through the FTC's e-filing system, and one electronic courtesy copy to the 

Office of the Secretary: 

DonaldS. Clark, Secretmy 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy and one paper courtesy copy to the Office of the Administrative 

Law Judge: 

The Honorable D. Michael Chappell 

Chief 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: j emord@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhm1gelsky 

Emord & Associates, P. C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

I further ce1tify 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: April3, 2014 

3 

athe · ohnson (kjohnson3@ftc.gov) 

Jo an Cohen (jcohen2@ftc.gov) 

Eisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551 ; -3001 

Fax: 202-326-2551 
Complaint Counsel

Exhibit A

CX-A
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

DECLARATION OF JONATHAN COHEN IN SUPPORT COMPLAINT COUNSEL'S 

RESPONSE TO ECM'S THIRD SUPPLEMENT TO ITS SECOND AND THIRD 

MOTIONS TO EXCLUDE THE OHIO STATE STUDY 

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the 

following is true and correct: 

1. I am over 18 years of age, and I am a citizen of the United States. I am employed 

by the Federal Trade Commission ("FTC") as an attorney in the Division of Enforcement in the 

Bureau of Consumer Protection. I am an attorney of record in the above-captioned matter, and I 

have personal knowledge of the facts set forth herein. 

2. Attachment 1 hereto is a true and correct copy of a declaration of Dr. Ramani 

Narayan, dated March 14, 2014, but without the attachments thereto. 

Executed this 3rd day ofMarch, 2014 in Washington, D.C. 
Complaint Counsel

Exhibit A

Attachment 1

CX-A:1
PUBLIC DOCUMENT

CX-A:1 at 1

Response to Subpoena dated February 13, 2014 

AFFIDAVIT OF TRANSMITTAL 

STATE OF MICHIGAN ) 

) ss. 

COUNTY OF INGHAM ) 

1, Ramani Narayan, Ph.D., being first duly sworn, state: 

1. I make this affidavit based on personal knowledge and can testify competently to the 

facts set forth herein. 

2. I was the only person who searched for the requested materials. 

3. The search is complete and all responsive documents are being produced as attached 

hereto. 

4. These documents were in my possession and are authentic. 

5. To the best of my knowledge, no documents requested have been lost, destroyed, or 

misplaced. 

6. I declare under penalty of perjury that the foregoing is true and correct. 

Further, affiant saith not. 

Dated: March 14,2014 ev--

Ramti Narayan, Ph.D. 

Subscribed and sworn before me this 141

h day of March, 2014. 

Lindsay Deck otary Public 

Ingham County, Michigan 

Acting in Ingham County, Michigan 

My Commission Expires: 5/1/14 
PUBLIC DOCUMENT

CX-A:1 at 2

1. Request No. 1-See attached Appendix 1 documents. 

2. Request No. 2-See attached Appendix 2 documents- all documents are Confidential and clearly 

identified as per the instructions and governed by the Protective Order governing confidential material 

3. Request No.3-See attached Appendix 3 documents 

4. Request No.4-See attached documents in Appendix 2 --all documents are Confidential and clearly 

identified as per the instructions and governed by the Protective Order governing confidential material 

5. Request No. 5- See attached Appendix 5 documents 

6. Request No.6-See attached Appendix 6 documents-Confidential and clearly identified as per the 

instructions and governed by the Protective Order governing confidential material 

7. Request No.7- Documents in the possession of the American Society of Testing and Materials 

(ASTM) and can be obtained from ASTM 

8. Request No.8- Documents in the possession of the American Society of Testing and Materials 

(ASTM) and can be obtained from ASTM 

9. Request No. 9- Documents in the possession of the American Society of Testing and Materials 

(ASTM) and can be obtained from ASTM 

10. Request No. 10- Documents in the possession of the American Societ y of Testing and Materials 

(ASTM) and can be obtained from ASTM 

11. Request No. 11- Documents in the possession of the American Society of Test ing and Materials 

(ASTM) and can be obtained from ASTM. 

12. Request No. 12- No participation, document can be obtained from the parties conducting the st udy 

13. Request No. 13- On data extrapolations or intrapolations there are documents in the possession of 

ASTM and also available in the general scientific and engineering literature