Docket No. 9358 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

COMMISSIONERS: Edith Ramirez, Chairwoman 

Julie Brill 

576509 

Maureen K. Ohlhausen 

Joshua D. Wright 

Terrell McSweeny ORIGINAL 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

RESPONDENT ECM BIOFILM'S OPPOSITION TO MOTION OF CALIFORNIANS 

AGAINST WASTE FOR LEAVE TO FILE AMICUS CURIAE BRIEF 

Respondent ECM BioFihns ("ECM"), by counsel, hereby opposes the Motion of 

Califomians Against Waste for Leave to File Amicus Curiae Brief, filed on Febmaty 27, 2015 in 

support of Complaint Counsel's appeal. The brief depends upon extra record fact and new 

argument, which, if allowed, would prejudice ECM by depriving ECM of the right to a frozen 

record on appeal (in effect, initiating a new trial at the appellate level). For the following 

reasons, the Commission should summarily deny the motion for leave and strike the proffered 

amicus brief: (1) the proffered brief does not address or support the issues presented in 

Complaint Cmmsel's Notice of Appeal; (2) the proffered brief relies extensively on extra record 

material; (3) the brief includes argument and opinion (and seeks relief) not presented below; (4) 

the brief is legally incompetent lmder Rules 3.52(c) and G) because the brief fails to identify with 

requisite particularity the nature of the Amicus patiy, the reasons why an amicus brief would be 

desirable (16 C.F.R. § 3.52G)), and the specific references to the record (16 C.F.R. § 3.52(c)(iv)). 

1 
Docket No. 9358 PUBLIC DOCUMENT 

2

Accordingly, to the extent the Commission considers or relies on any information in the 

proffered brief in support of Complaint Counsel’s position, ECM will be prejudiced and denied 

its constitutional right to Due Process.

A. The Proffered Amicus Brief Does Not Address Issues in Complaint Counsel’s Notice 

of Appeal: 

An amicus brief that “supports” a party’s position must satisfy the basic requirement that 

it actually address the arguments raised below. In its brief, the Californians Against Waste 

(“CAW”) address broad policy issues not contained in the record below. In addition, those 

points are beyond the confines of Complaint Counsel’s Notice of Appeal filed on February 10, 

2015. Moreover, the proffered CAW brief does not support any particular content in Complaint 

Counsel’s appellate brief (filed February 27, 2015). In short, the CAW brief seeks to relitigate 

this case at the appellate level based on facts, law, and argument not presented by Complaint 

Counsel or evaluated by the ALJ.

B. The Proffered Amicus Brief Relies Almost Exclusively on Material Not a Part of the 

Record and is Legally Deficient: 

 The CAW brief relies extensively (and almost exclusively) on extra record “evidence” 

not submitted in the proceeding below. Introduction of that “evidence” is in and of itself 

sufficient grounds to strike the submission without further ado. Due process of law requires that 

the Respondent be afforded “a meaningful opportunity to challenge new evidence” in the trial 

itself. BNSF Ry. Co. v. Surface Transp. Bd., 453 F.3d 473, 486 (D.C. Cir. 2006) (quoting 

Matthews v. Eldridge, 424 U.S. 319, 349 (1976)). “[D]ue process requires that a defendant be 

given a fair and meaningful opportunity to refute the challenged adverse evidence to assure that 

the court’s relevant findings are based on verified facts.” U.S. v. Grandlund, 71 F.3d 507, 509-

10 (5th Cir. 1995). The authority of the Commission as an appellate body extends only to review 
Docket No. 9358 PUBLIC DOCUMENT 

3

of “such parts of the record as are cited or as may be necessary to resolve the issues 

presented...” See 16 C.F.R. § 3.54(a) (emphasis added). The Commission forbids new evidence 

or argument on appeal. CAW thus lacks authority to reach beyond the administrative record and, 

even if it did, basing any part of the Commission’s decision on evidence thrust before ECM for 

the first time on appeal would violate ECM’s constitutional and administrative rights. 

 The CAW brief attaches and relies on six wholly new exhibits (and eight total extrarecord citations), that were thus not subject to ALJ evaluation and ECM cross-examination. That 

information includes biased presentation favoring new, extra-record scientific standards and even 

an entirely new and untested document purportedly containing survey data. The entirety of that 

information should be stricken (all of the exhibits). Because the CAW brief relies almost 

exclusively on that improper evidence, the brief in its entirety must be stricken. A non-party, the 

CAW has no standing to assert any argument in these proceedings and, in any event, made no 

attempt to appear by leave or introduce this information at the hearing.1

 The proffered brief also lacked citations to the record and the ALJ’s Initial Decision.

Rule 3.52(c)(iv) requires that appellate briefs must clearly identify the “fact and law relied upon 

in support of the position taken on each question, with specific page references to the record

and the legal or other material relied upon.” See 16 C.F.R. §3.52(c)(iv) (emphasis added). The 

CAW brief neglects except in very few instances any citation to the Initial Decision or the 

record. Of the exhibits cited, two were simply ASTM reference documents, and one exhibit—

the FP International NAD Decision (CCX 28)—was cited for a purpose contrary to the ALJ’s 

 1

 The Complaint in this case was a public record, and followed a public press release by 

the Commission. 
Docket No. 9358 PUBLIC DOCUMENT 

4

order on its limited admission. See Chappell, Tr. 1619, 1635.2 The CAW brief relied on those 

documents (and statements therein) for the truth of the matter asserted, which was wholly 

improper and inconsistent with the ALJ’s evidentiary rulings. That content should be stricken as 

well. 

 The failure to cite or rely on record evidence is particularly troublesome considering that 

this case involved more than 1,700 exhibits, over 3,400 proposed findings of fact, and at least 52 

scientific tests (not including consumer perception data). Twenty nine witnesses (including eight 

experts) testified at deposition and at the hearing. Because the CAW brief is unsupported by the 

record, it amounts to nothing more than an unsupported and prejudicial opinion. For that reason, 

and as discussed below, the CAW brief is not “desirable” under Rule 3.52(j). 

After the Commission excises the improper content from the CAW brief, nothing of 

utility remains. For that reason, too, the motion should be denied and the brief stricken.

C. The Proffered Amicus Brief Does Not Adequately Identify the Amicus Party’s 

Interests, or the Reasons Why an Amicus Brief Is Desirable 

 Rule 3.52(j) requires amicus parties to identify the interest of the amicus, explain why the 

Commission’s decision would affect the amicus, and explain why the amicus brief is desirable in 

this case. See 16 C.F.R. § 3.52(j). CAW explained that it has a commercial interest in the 

outcome of this case, to wit, it seeks to avoid competition with the recyclable plastic programs it 

favors. See CAW Mot. at 2. CAW is an industry organization that supports and advocates for 

 2

 The NAD decisions had little relevance, in part, because the claims in those proceedings 

were not subject to full litigation. ECM was not a party to the proceedings, the interests of the 

defending party were different, and evidence presented in those proceedings was but a very small 

fraction of the evidence and testimony received by the ALJ in this ECM matter. Reliance on 

those documents in this case is therefore arbitrary and capricious, and the exhibits are prejudicial 

and irrelevant. 
Docket No. 9358 PUBLIC DOCUMENT 

5

recyclable technologies that compete with ECM’s. In its motion, it claims that “the recycling 

industry is negatively impacted by additives in some biodegradable products, which degrade the 

quality of their finished product.” See CAW Mot. at 2. So the CAW is not a financially 

disinterested amicus, a friend of the court, but instead a self-admitted financially biased party 

opposed to biodegradable technologies like those ECM sells. The ALJ correctly found that socalled “public interests” in competing technologies are actually private interests in competition 

with companies like ECM Biofilms that sell biodegradable plastics, and the CAW Motion admits 

as much. See ALJ Findings of Fact No. 1481.

 In that regard, the CAW is a partisan advancing its own cause and agenda, an agenda that 

has no place in assessment of the merits of the FTC action or the appeals before this 

Commission. When combined with the clear errors of law and procedure identified above, the 

brief is unhelpful to a decision on the merits of this case. The CAW Motion thus fails to identify 

precisely why the unsupported “opinion” of the CAW will aid the Commission in evaluating the 

ALJ’s Initial Decision. Rather, the brief prejudices ECM because, if it is allowed by the 

Commission, ECM would have to address facts, law, and argument raised for the first time on 

appeal by a financially interested non-party with no standing to appear and assert those 

arguments in this appeal. 

D. The Proffered Amicus Brief Seeks Relief Beyond the Purview of the Administrative 

Complaint

 The Complaint filed in October 2014 charged ECM with specific counts of false or 

deceptive advertising. The proposed order at the time (and still in Complaint Counsel’s post-trial 

briefing) requested specific relief. The CAW brief strays beyond the scope of those documents, 

and actually asks the Commission to impose heightened requirements on ECM and industry that 
Docket No. 9358 PUBLIC DOCUMENT 

6

are not supported by the record, to wit: a requirement that companies disclose proprietary test 

data on websites; a requirement for quantitative test data; and a requirement that industry rely on 

“standards” instead of “tests.” That type of action was not supported by the record evidence, nor 

has Complaint Counsel sought that type of relief in its briefs before the Commission. The 

CAW’s brief does not therefore “support” any position in the case. It is an unsubstantiated 

opinion of a competing industry member, which should be disregarded. 

Here, again, the fact that CAW did not support its opinion with record evidence is 

determinative because—based on the evidence—the ALJ specifically rejected those theories. 

For instance, the CAW asks companies to state (falsely) that “no further biodegradation can be 

expected” based on the results of certain tests like the ASTM D5511. ECM’s experts testified 

that those very tests are predictive of biodegradation in landfills, and the ALJ found that 

biodegradation would, in fact, occur in light of the total expert evidence and opinion 

received. ALJFF Nos. 687-88, 729; ALJ Init. Dec. at 276-79. That point was supported by the 

ECM tests which revealed that, over time, biodegradation in the test environments had 

continued, particularly after re-inoculation. ALJFF Nos.1006-1465; ALJ Init. Dec. at 263-67, 

284-85; RB at 79-80. The CAW therefore asks the Commission to disregard the ALJ’s findings 

without citing those findings or explaining through record evidence why those findings were 

incorrect. That problematic approach threatens to cloud this matter with misinformation and 

improper argument. 

E. Conclusion

For the foregoing reasons, consistent with the FTC’s Rules of Practice and to protect 

ECM’s right to Due Process, the Commission should summarily deny the CAW’s motion to 

participate as an amicus curiae, and strike the motion (and exhibits) from the record in this case. 
Docket No. 9358 PUBLIC DOCUMENT 

7

The CAW’s opinions can be freely expressed in a citizen petition under 16 C.F.R. §§ 1.9 and 

1.25, but they have no place here in an adjudicatory case on appeal. 

 Respectfully submitted, 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord (jemord@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED: February 27, 2015 
Docket No. 9358 PUBLIC DOCUMENT 

8

CERTIFICATE OF SERVICE 

I hereby certify that this is a true and correct copy of the foregoing Respondent’s Opposition the 

CAW Motion for Leave to file Amicus Curiae Brief, and that on this February 27, 2015, I caused 

the foregoing to be served electronically through the FTC e-filing system to the following: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW 

Suite 110 

Washington, DC, 20580 

Donald Clark 

600 Pennsylvania Ave., NW 

Suite 172 

Washington, DC 20580 

Katherine Johnson 

Complaint Counsel 

Federal Trade Commission 

kjohnson@ftc.gov

Complaint 

Jonathan Cohen 

Federal Trade Commission, Bureau of Consumer Protection, Enforcement Division 

jcohen@ftc.gov

Complaint 

Joshua Millard 

Attorney

Federal Trade Commission 

jmillard@ftc.gov 

Complaint 

Benjamin Theisman 

Attorney

Federal Trade Commission 

btheisman@ftc.gov 

Complaint 

Arturo DeCastro 

Attorney

Federal Trade Commission 

adecastro@ftc.gov 

Complaint 
Docket No. 9358 PUBLIC DOCUMENT 

9

Howard F. Wilkins III 

Elizabeth Sarine 

Remy Moose Manley LLP 

rjackson@rmmenvirolaw.com 

vwood@rmmenvirolaw.com 

Californians Against Waste (Amicus) 

 /s/ Peter A. Arhangelsky 

 Peter A. Arhangelsky (parhangelsky@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 3210 S. Gilbert Road, Ste 4 

 Chandler, AZ 85286 

 Telephone: 602-388-8899 

Facsimile: 602-393-4361 

DATED: February 27, 2015 
Notice of Electronic Service for Public Filings

I hereby certify that on February 27, 2015, I filed via hand a paper original and electronic copy of the foregoing

Respondent ECM's Opposition to the Californians Against Waste Motion for Leave to File Amicus Curiae

Brief, with:

D. Michael Chappell

Chief Administrative Law Judge

600 Pennsylvania Ave., NW

Suite 110

Washington, DC, 20580

Donald Clark

600 Pennsylvania Ave., NW

Suite 172

Washington, DC, 20580

I hereby certify that on February 27, 2015, I filed via E-Service of the foregoing Respondent ECM's Opposition

to the Californians Against Waste Motion for Leave to File Amicus Curiae Brief, with:

Jonathan Emord

Emord & Associates, P.C.

jemord@emord.com

Respondent

Peter Arhangelsky

Emord & Associates, P.C.

parhangelsky@emord.com

Respondent

Lou Caputo

Emord & Associates, P.C.

lcaputo@emord.com

Respondent

Katherine Johnson

Complaint Counsel

Federal Trade Commission

kjohnson3@ftc.gov

Complaint

Elisa Jillson

Complaint Counsel

Federal Trade Commission

ejillson@ftc.gov

Complaint

Jonathan Cohen

Federal Trade Commission, Bureau of Consumer Protection, Enforcement Division

jcohen2@ftc.gov

Complaint

Joshua Millard

Attorney

Federal Trade Commission

jmillard@ftc.gov

Complaint

Benjamin Theisman
Attorney

Federal Trade Commission

btheisman@ftc.gov

Complaint

Eric Awerbuch

Emord & Associates

eawerbuch@emord.com

Respondent

Arturo DeCastro

Attorney

Federal Trade Commission

adecastro@ftc.gov

Complaint

Bethany Kennedy

Ms.

Emord & Associates, P.C.

bkennedy@emord.com

Respondent

Peter Arhangelsky

Attorney