PUBLIC DOCUMENT 

1 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

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 FOR COST 

REIMBURSEMENT TO NON-PARTY SUBPOENAED BY RESPONDENT AND 

AFFIDAVIT OF STEVEN MOJO 

 Respondent ECM Biofilms, Inc. (“ECM”) hereby opposes the Biodegradable Products 

Institute’s (“BPI”) Motion for Cost Reimbursement, which BPI mailed to the Office of the ALJ 

on or about November 6, 2014, and served on ECM counsel by conventional mail November 8, 

2014. A copy of that “motion” is contained in Attachment A. BPI’s motion was never properly 

filed with the Secretary; BPI failed to make an appearance under Rule 4.1; BPI failed to meet 

and confer on the motion in violation of this Court’s Scheduling Order and Rule 3.22(g); BPI 

failed to serve Complaint Counsel with a copy of the motion; and BPI failed to support its 

motion with material facts and law. For those reasons discussed more fully below, BPI’s motion 

for reimbursement should be denied. 

BACKGROUND

 On January 24, 2014, ECM counsel served BPI with a subpoena duces tecum requesting 

information relevant to ECM Biofilm’s technology. See ECM’s subpoena duces tecum to BPI, 

appended as Attachment A (part of BPI’s motion packet). BPI has been an outspoken critic of 

11 11 2014
    PUBLIC DOCUMENT 

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additive technologies; it authored public criticisms of ECM’s technology; it partnered with 

scientists who had communicated with Complaint Counsel concerning the ECM additive (e.g., 

Dr. Ramani Narayan); and it directly lobbied the FTC to act against additive companies like 

ECM Biofilms. See CCX 764; RX 147; 148; RX 150; RX 169; RX 171; RX 172; RX 174; RX 

179; RX 181–84; RX 189–194; RX 211. BPI also claimed to have tested competing additive 

technologies. ECM’s BPI subpoena requested documents concerning those matters. The 

documents BPI produced were directly relevant to the issues before this Court, and ECM 

included many of them as exhibits in the case. See RX 169–194; RX 211. 

 Although ECM worked with BPI to narrow the scope of certain discovery requests, at no 

point did ECM pledge to pay BPI’s costs, and BPI never formally objected to ECM’s subpoena. 

BPI did not file a motion to quash or limit the ECM subpoena. BPI did not file a motion for a 

protective order. BPI’s instant request for reimbursement does not specify which, if any, of 

ECM’s document requests were excessive or unreasonable. 

 On or about November 6, 2014, BPI apparently mailed a request for reimbursement 

(styled a “Motion for Cost Reimbursement”) to the Honorable Michael D. Chappel’s chambers, 

with a letter copy to ECM’s counsel. BPI did not enter an appearance in this case, confer with 

ECM counsel before filing its motion, serve Complaint Counsel with a copy of the motion,1

 or 

file the motion with the Secretary’s office under Rule 4.2(c) (16 C.F.R. § 4.2(c)). BPI mailed an 

attested copy of its costs but pled no basis for relief. 

                                                             1

 On Monday, November 10, 2014, ECM counsel provided Complaint Counsel with an 

electronic scanned copy of the motion by email. 
    PUBLIC DOCUMENT 

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ANALYSIS 

A. BPI’s Motion Is Procedurally Infirm 

BPI’s motion should be denied not only because it is incompetent in substance but also 

because it suffers from fatal procedural errors. First, no person from BPI (an entity) made an 

appearance under Rule 4.1 (16 C.F.R. § 4.1), which is a condition precedent for participation in 

these proceedings. See 16 C.F.R. § 4.1(a)(2). The failure to make an appearance is significant, in 

part, because it limits the Court’s and parties’ ability to correspond with the litigant through 

formal process. 

Second, BPI did not meet and confer under Rule 3.22(g) and this Court’s November 21, 

2013 Scheduling Order at paragraph 5. Under the Scheduling Order, the failure to meet and 

confer is itself a basis for denial of the motion. 

Third, BPI apparently did not file its motion. BPI’s certificate of service shows that it 

mailed a hardcopy to the chambers of Judge Michael D. Chappell without any indication that 

BPI served a copy on the Secretary of the Commission, which is required by Rule 4.2(c). ECM 

therefore cannot determine whether the motion is properly before the Court, or what ECM’s 

obligations are with respect to the BPI submission. 

Each of those procedural errors are grounds to deny the motion. Even assuming BPI is 

properly before this Court as an unrepresented corporation (it is not per 16 C.F.R. § 4.1(a)(2)2

), 

the procedural deficiencies are significant enough to deny the motion. See Feature Films for 

Families, Inc., 150 F.T.C. 866, at *3 (Sept. 23, 2010) (holding that the party’s failure “to prove 

                                                             2 See also In Re ECM Biofilms, Inc., 2014 WL 1818841, at *6 (F.T.C. Apr. 24, 2014) 

(requiring a bona fide officer of a corporation to file a notice of appearance and demonstrate 

adequate authorization, in accordance with Rule 4.1(a)(2), before appearing in a case on behalf 

of that corporation). 
    PUBLIC DOCUMENT 

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that it satisfied the meet-and-confer requirements constitute an adequate and independent reason 

to deny” the party’s petition); Petition to Limit and/or Quash Civil Investigative Demand, 140 

F.T.C. 1210, 1212 (Nov. 17, 2005) (“Petitioner's failure to comply with the meet-andconfer requirements of FTC rules is sufficient, in and of itself, to deny the instant Petition.”); 16 

C.F.R. 4.2(c)(1) (requiring “[e]ach document filed before the Commission or an Administrative 

Law Judge in an adjudicative proceeding, except documents covered by § 4.2(a)(1)(i), [to] be 

filed with the Secretary of the Commission”). 

B. BPI Offers No Basis for Reimbursement 

BPI made no showing that ECM’s subpoena was unreasonable such that ECM should be 

required to bear BPI’s compliance costs. BPI’s motion only sets forth the amount of time and 

money spent complying with ECM’s reasonable requests, an amount that, incidentally, is not 

extraordinary given the quantity of relevant information in BPI’s possession. Other than 

reporting its costs, BPI made no showing (through facts or argument) that the amount of work 

required was excessive or unreasonable. This Court has already denied a similar request for 

costs which likewise failed to plead with requisite facts undue hardship in production. See Order 

on Non-Party O.W.S. Inc.’s Motion to Quash or Limit Subpoena Duces Tecum, Dkt. No. 9358 

(Mar. 27, 2014). 

The Commission held in In re Int’l Tel. & Tel. Corp., 97 F.T.C. 202 (March 13, 1981) 

that “a subpoenaed party is expected to absorb the reasonable expenses of compliance as a cost 

of doing business, but reimbursement by the proponent of the subpoena is appropriate for costs 

shown by the subpoenaed party to be unreasonable.” Id. at *3. To determine whether expenses 

are “reasonable,” the Court “should compare the costs of compliance in relation to the size and 

resources of the subpoenaed party.” Id. Here there are no facts or argument in BPI’s motion that 
    PUBLIC DOCUMENT 

5 

would permit that analysis. The motion should therefore be denied because it is deficient, 

missing critical elements necessary to an informed decision. 

That point notwithstanding, BPI’s expenses (at about $5,000) were not extraordinary or 

unreasonable. Earlier in this case, another non-party, O.W.S. Inc., had alleged costs more than 

three times that amount. Even assuming (but not conceding) that O.W.S.’s calculation was 

accurate, this Court deemed O.W.S.’s burdens to be reasonable. See Order on Non-Party O.W.S. 

Inc.’s Motion to Quash or Limit Subpoena Duces Tecum, Dkt. No. 9358 (Mar. 27, 2014). 

Finally, BPI’s costs are grossly inflated. BPI’s attorney fees (which are itemized in 

Exhibit D of BPI’s submission) reflect billable charges for administrative work that has been 

billed at an attorney rate. See BPI Mot. at Exh. D (billing 3 hours at $225/hour to have an 

attorney “unlock secured documents, convert to PDFs, and organize”). ECM’s subpoena was 

neither complex nor detailed. Yet BPI provided no explanation for why its counsel devoted over 

14 hours (two full days) to prepare that submission of electronic records, in addition to 24 hours 

of a BPI executive’s time. 

Because BPI has failed to allege any factual basis that would justify an award of costs, 

and because ECM’s subpoena was reasonable in scope, BPI’s motion should be denied. 

CONCLUSION 

 For the foregoing reasons, ECM respectfully requests that this Court deny BPI’s motion 

for reimbursement of its costs. 

Respectfully submitted, 

/s/ Jonathan W. Emord 

 Jonathan W. Emord (jemord@emord.com) 
    PUBLIC DOCUMENT 

6 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED: November 11, 2014. 
    PUBLIC DOCUMENT 

7 

CERTIFICATE OF SERVICE

I hereby certify that on November 11, 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 through the e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy 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 Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

One hardcopy to the Biodegradable Products Institute: 

Steven Mojo, Executive Director 

P.O. Box 1481 

Cotuit, MA 02635 

* I certify that I retain a paper copy of the signed original of the foregoing document that 

is available for review by the parties and adjudicator consistent with the Commission’s Rules. 

 
    PUBLIC DOCUMENT 

8 

DATED: November 11, 2014 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 
ATTACHMENT A 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFHms, Inc. 

a corporation, also d/b/a 

Enviroplastics International 

Respondent 

DOCKET NO. 9358 

MOTION FOR COST REIMBURSEMENT TO 

TIDRD PARTY SUBPOENAED BY RESPONDENTS 

AND AFFIDAVIT OF STEVEN MOJO 

The Biodegradable Products Institute ("BPI"). hereby moves for cost reimbursement 

with respect to locating and producing . documents in compliance with the subpoena served 

upon it by Respondents, ECM BioFilms, on or about January 24, 2014. In support thereof 

BPI submits herein the Affidavit of Steven Mojo, the Executive Director BPI 

specifying the costs involved in responding to the subpoena, which include, inter 

alia, invoices from BPI's attorney who assisted in the response, and the time 

devoted to such response by Mr. Mojo. 

More specifically: 

1. Respondents directed a subpoena to BPI requesting production of 

documents relating to the Respondent (Exhibit A). 

2. Michael Zall, Counsel for the BPI conferred with BPI on numerous 

occasions in January and February, 2014 and had several discussions with 

Respondent's attorney, Jonathan Emard and/or Lou Caputo, clarifying what 

was needed and lengthy discussions with Mr. Mojo. BPI produced 4357 pages of 

documents (Exhibit B). 

3. On February 28, 2014, Counsel to BPI, Michael Zall submitted the attached 

invoice for $3260. (Exhibit C) to BPI for services rendered to BPI in responding to the 

Page lof4 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

subpoena. This invoice was promptly paid by BPI. 

4. Additionally, Mr. Mojo spent about 24 hours of time collecting and reviewing 

documents and transferring them to his Counsel. It is estimated that the costs for his services 

and/or the fair market value is about $50/hour for a total cost of $1200. 

5. On February 20, 2014~ Counsel for BPI sent an Invoice for $5060 to Counsel 

for Respondent (Exhibit D). Subsequently there was telephone conversations and 

correspondence between Michael Zall and Counsel for Respondent (Exhibit E). This did not 

result in the payment of such Invoice. 

4. Third party witnesses may be compensated to cover the cost of producing 

voluminous records in response to a subpoena. FTC Manual, §10.13.6.4.7.8. The Federal 

Rules of Civil Procedure may be consulted for guidance and interpretation of FTC rules 

where no other authority exists. FTC Manual, §10.7. FRCP 45 requires the court to protect 

a non-party by requiring the party seeking discovery to bear enough of the expenses of 

complying with a subpoena so that compliance with the subpoena does not impose 

significant expense on the non- party. Linder v. Calero-Portocarrero, 251 F. 3d 178, 182 

(D.C. Cir. 2001). 

WHEREFORE, B P I respectfully requests that an order be entered requiring 

Respondents to reimburse BPI for its costs incurred in locating the subpoenaed 

documents, assembling and delivering them to Respondent. 

Page 2 of4 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

The signatory being warned that willful false statements and the like are 

punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, declares 

that all statements made of his own knowledge are. true and all statements made on 

information and belief are believed to be true. 

The Biodegradable Products Institute 

By:. Steven Mojo, Executive Director 

Signature: _s--c:_ /] ~ 

Box 1481 

Cotuit, MA 02635 

(774) 521-3202 

exec. director@ bpi world.org 

Page 3 of4 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

CERTIFICATE OF SERVICE 

I hereby certify that on November .:f5._, 2014, a copy of the foregoing Motion For Cost 

Reimbursement was served by overnight courier delivery on: 

Jonathan Emord 

jemord@emord.com 

Emord & Associates, P.C. 

11808 Wolf Rune Lane 

Clifton, VA 20124 

Phone Number: 202-466-6937 

Fax Number: 202-466-6938 

Peter Arhangelsky 

parhangelsky@emord.com 

Lou Caputo 

lcaputo@emord.com 

Emord & Associates, P.C. 

3210 S GilbertRd Ste 4 

Emord & Associates, P.C. 

Chandler, AZ 85286 

Phone Number: 602-388-8899 

Fax Number: 602-393-4361 

D. Michael Chappell 

Chief Administrative Law Judge 

Federal Trade Commission 

RoomH-113 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

Page 4of4 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

D .. o.··· c· ·KE·· ·T·. N'O. ··. ·9 .. 3 .. s:s·· ..... · .... ·. . . . ·. . . ... . ...... . 

MOTION FOR COST REIMBURSEMENT 

TO THIRD PARTY S·UBP'OENAED BY 

RESPONDENTS 

EXHIBIT A 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

SUBPOENA DUCES. 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuant to Commission Rule 3.34(b),16 C.F.R. § 3.34(b)(2010) 

Biodegradable Products Institute 

331 West 57th Street, Suite 415 

New York, NY 1 0019 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena Nquires you to produce and permit Inspection and copying of design~ books, documen~ (as defined ln 

Rule 3.34(b)). or tangible things. at the date and time specified in ttem 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 4. MATERIAL. WIU. BE PRODUCED TO 

Emard & Associates, P.C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

6. SUBJECT OF PROCEEDING 

Peter Arhangelsky 

. 5. DATE AND TIME OF PRODI.ICTION 

March 3, 2014,5:00 PM EST 

In the matter of ECM BioFilms, Inc., Docket No. 9358 

1. MATERIAl TO BEPRot)UCED 

See Attached Schedule A for description of all documents and materials. 

8. ADMINISTRATIVE lAW JUDGE 

Chief Administrative Law Judge 

D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

DATE SIGNED 

APPEARANCE 

The delivery of this subpoena .1o you by any.melhod 

Presc:ribed by·thEI Cornrnisaion's RI.IS.S of Practice is 

legal service and may subject you to a penalty 

imposed by law for failure to comply. 

MOTION TO UMJTOR QUASH 

The Commission's Rules of P~ require that any 

motion to limit orqU8$h this subpoena must comply with 

Commission Rule 3.34(c), 16 C.F.R. § 3.34(c), and In 

particUlar must be tiled within~ earlfer.of10 df,lys after 

service or the time for compliance. The original and 1Bn 

copies of the petition must 1M! filed before the 

Administrative Law Judge and with the Secretary of the 

Commission, accompartled by a,t affidavit of service of 

1he document upon counsetlistectln Item 9, anc1 upon all 

other partie& PRI8Cribed by the RuleS of Practice. ... 

9. COUNSEL AND PARlY rSSUING SUBPOENA 

Jonathan W. Emard, Peter Arhangelsky 

Emard & Associates, P.C. for Respondent, 

ECM BioFilms, Inc. 

TRAVEL EXPENS~S 

The Commission'~ Rules of Practiee. require that fees and 

mileage be paid by tht;j party that requested your<appe~. 

You should IWS8Jlt your claim to counsel listed In Item 9 for 

payment. If you are permanently or temporarily IMng somewhe~e. other than the address on this subpoena and it 

would require ex<:e$Sive travel for. you to appear, you must get 

prior approval from counsel listed in Item 9. · 

A oopy of the Commission's Rules of Practice is ;wailable 

online at http:/ibit.I¥JflCBu!esofPrartiGft Paper copieS are 

available upon request. · 

This subpoena does nohequire &pproval by OMB under 

the Paperwolk Reduction Act of 1980. 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

BIODEGRADABLE PRODUCTS INSTITUTE ("BPI") 

INSTRUCTIONS 

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein. 

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P .C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique "Bates" document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objections to these numbered requests, or to any individual request, must be raised. in the 

initial response or otherwise waived. 

I. The Federal Trade Commission's Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

1 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.31(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

J. The Federal Trade Commission's Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) ofthis section 

authorizes the issuance of subpoenas except in accordance with-

§§3.31(c)(2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22,2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ~4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item's type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. · 

2 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

DESCRIPTION OF DOCUMENTS REQUESTED 

Please produce the original or copies of the following documents (the term "documents" 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence 1, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents conceming2 the biodegradability of plastics generally and in 

Municipal Solid Waste Landfills in particular whether or not in the presence of other 

biodegradable material. 

2. All documents concerning ECM BioFilms, Inc. 

3. All correspondence from any BPI employee, member, representative, BPI 

Executive Director Steve Mojo, or Dr. Ramani Narayan, of or concerning ECM BioFilms, Inc. or 

any ofECM's employees, officers, and representatives. 

1 The term "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, docwnents appended to emails, reports 'and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

2 The term "concerning" is intended, used, and defined in its broadest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicating, explaining, or about the documents 

subject to any and all individual requests in this subpoena. 

3 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

4. AU documents concerning the Federal Trade Commission's ("FTC") "Revised 

Green Guides" published in October 2012 

5. All correspondence between any BPI employee, member, representative of BPI, 

BPI Executive Director Steve Mojo, or Dr. Ramani Narayan, of, concerning, to, or from the 

Federal Trade Commission or any Federal Trade Commission employee or agent. 

6. All documents concerning or related to any version of the American Society of 

Testing and Materials' ("ASTM") testing methods D5511 and D5526. 

7. All correspondence between any BPI employee, member, or representative and 

the American Chemistry Council ("ACC"). 

8. All documents concerning the study performed in 2006 by APCO Insight 

("APCO Study") for the ACC concerning public perception of the term "biodegradable" and 

related topics. 

9. All documents concerning or supporting the following statement from the BPI 

website: "The key point is that only a portion of the additive will biodegrade and there is no data 

to show that the remaining 95 to 99% of the plastic package will also biodegrade." See 

Attachment A (BPI webpage: "Background on Biodegradable Additives" at 2. 3 

10. All documents concerning or supporting the following statement from the BPI 

website: "Extrapolation of test data should not be a basis for meeting these criteria." See 

Attachment A at 4 

11. All documents specifically identifying sources for the following statement, and 

concerning or supporting the following statement, from the BPI website: "Further, based on a 

study by the American Chemistry Council, when consumers see the word 'biodegradable' on a 

3 Available at httu://tinylink.net/070xo (last checked January 21, 2014). 

4 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

package, they believe that the package will completely disappear in 12 to 18 months ... " See 

Attachment A at 3. 

12. All documents concerning or related to the defmition of"biologically active 

landfill," "biologically inactive landfill" as the terms are used in any and all versions and 

reproductions of ASTM D5511 and D5526. 

INSTRUCTIONS FOR COl\fPLIANCE BY DELIVERY OF DOCUMENTS 

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents4, and a brief description of the nature of the work that e~ch 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made and kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of BPI who have knowledge of such matters 

and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of fl?.e documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it Was destroyed, lost or misplaced; and the custodian of 

th~ documents on the date of its destruction, loss, or misplacement. 

4 "DocUll)ent" and "documents" as used in this Attachment are defined in this subpoena's 

"Description of Documents Requested'' section. 

5 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

Respectfully submitted, 

Is/ Jonathan W. Emord 

Jonathan W. Emord, Esq. 

EMORD & ASSOCIATES, P.C. 

11808 WolfRune Lane 

Clifton, VA 20124 

Ph: 202-466-6937 

Fx: 202-466-6938 

Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

6 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

B· .· ·.Products£ . ·p··. ·1 JJio.degr .. adable .. 

. . .·Institute·~ 

Background on 

Biodegradable Additives 

This document summarizes the Biodegradable Products Institute's comments on 

the use of additives to promote "biodegradation" in traditional polymers, such as 

PE, PP, PS and PVC. 

Background 

There are a number of manufacturers who claim that when their products are 

mixed at 1-5% concentrations with traditional polymers, the resultant 

formulation/s become "biodegradable". Further, these manufacturers maintain 

that their additives will make polymers "biodegradable" in aerobic environments 

(such as composting and litter), as well as anaerobic environments (typically 

found in landfills). 

Today, these additives fall into two broad classes , "oxo-biodegradables" and 

"additives with organic materials": 

1. Oxo-biodegradables: These consist of transition metals (some of which are 

regulated) that theoretically foster oxidation and chain scission in plastics 

when exposed to heat, air and/or light. Based over 20 analyses over the past 

4 years by the BPI, these metals include but are not limited to cobalt, 

manganese, magnesium, iron and zinc. The theory behind chain scission is 

that it is supposed to shorten the polymer chains to the point where they can 

be consumed by microorganisms found in the disposal environment and used 

as a food source. 

Research has shown that moisture retards the oxidation process, delaying the 

potential onset of biodegradation. In addition, for landfills, no data has been 

presented to support complete biodegradation in anaerobic environments. 

Testing has shown that in arid climates with sunlight and high heat, oxobiodegradable additives will accelerate the fragmentation of traditional 

polymers. Data has shown that at high temperatures in conjunction with UV 

in arid conditions, that fragmentation can be achieved in 2 to 3 months. 

However, fragmentation is not a sign of "biodegradation" and there is 

no data to show how long these plastic fragments will persist in the soils or 

marine environments. Further, data has also shown that moisture will retard 

this fragmentation process for months or longer. 

From a practical perspective, this means that a plastic bag that is littered in 

the desert will probably fragment in a few months. Yet, these fragments will 

persist for years or longer. Moreover, if the same bag is littered in a cold, 

dark wet forest, it is unlikely that the bag will fragment for months or years. 

Page 1 February 12, 2010 

Attachment A, ECM BioFilms, Inc. Subpoena to BPI 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

EPI (EPI Environmental Technologies), Wells/Bioxo, Addiflex, Symphony are 

some of the suppliers of oxo-biodegradable additives. However, some 

converters using these additives do not cite specific manufacturers. Rather, 

they may say that they are using "oxo-biodegradable" concentrates or 

additives. 

2. Additives with Organic Materials: In this class of materials, some portion 

of the additive itself will biodegrade and generate carbon dioxide or methane. 

The biodegradable portion of the additive pellets can be natural materials, 

such as cellulose and starch or it can consist of resins, which are known to 

biodegrade, such as EVA or PVOH. The key point is that only a portion of the 

additive will biodegrade and there is no data to show that the remaining 95 

to 99% of the plastic package will also biodegrade. In some ways, this class 

of additives is similar to the original "biodegradable plastics" where the starch 

would biodegrade and the remaining plastic just fragmented. 

Based on data that the BPI has reviewed, manufacturers with this type of 

technology include (but are not limited to) ECM Biofilms, Bio-Tec 

Environmental's EcoPure, BioBatch, Green Films and Good Earth. 

Latest Labeling Developments: 

Claims by additive suppliers are difficult to interpret, as they typically quote a 

variety of ASTM tests and other documents. 

Given the increasing level of claims, (many of which are unsupported), the State 

of California has decided to step in, by passing 2 pieces of legislation. These 

pertain to plastic bags and foodservice items (both paper and plastic) and 

became effective in January, 2009. The impact of this legislation is to make the 

use of the labels "biodegradable" and "degradable" more rigorous. Further, in 

order to use the term "compostable" plastic bags and foodservice items must 

meet either ASTM 06400 or 06868. 

• ASTM 06400: Standard Specification for Compostable Plastics 

• ASTM 06868: Standard Specification for Biodegradable Plastics 

Used as Coatings on Paper and Other Compostable Substrates 

Additionally, the Federal Trade Commission (FTC) requires that prior to making 

any unqualified "biodegradable" claims, that suppliers have scientific data to 

prove: 

1) That the entire product (not just the additive) will biodegrade into 

elements found in nature; 

2) In a short period time after customary disposal (which is landfilling for 

most plastics). 

Page2 February 12, 2010 

Attachment A, ECM BioFilms, Inc. Subpoena to BPI 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

Additionally on June 9, 2009, the FTC found that Kmart's claims of 

biodegradability of paper. plates was misleading. Further, they questioned the 

ability of any materials to biodegrade in a landfill. 

"Mr. Davis of the F. T.C raised doubts. ''Maybe a piece of produce could 

be labeled biodegradable if it:s customarily disposed of through 

composting, H he said, ''but the statistics show that most household trash 

goes to landfills. So even a piece of produce might not biodegradeD in a 

reasonable period of time, he explained H 

Source: htfp:l!qreenincb/oos.nytimes.com/2009106/11/ffc..sends-stem-warnlnq-on-biorlegradab/e-markefino: 

claimsi?SC1J=3&sa=biot!egrar/able%20hc&st=Search 

Further, based on a study by the American Chemistry Council, when consumers 

see the word "biodegradable" on a package, they believe that the package will 

completely disappear in 12 to 18 months, no matter where it is thrown away 

(either in landfills, streams or as litter). Consumers think nothing will be left at 

the end of toe process. 

Science of Biodegradation: 

Biodegradation takes place when microorganisms utilize carbon substrates to 

extract chemical energy that drives their life processes. The carbon substrates 

become ''food", which microorganisms use to sustain themselves. Under aerobic 

conditions, the carbon is biologically oxidized to carbon dioxide inside the cell 

releasing energy that is harnessed by the microorganisms for its life processes. 

Under anaerobic conditions, C02 + Methane are produced. Thus, a measure of 

the rate and amount of C02 or C02+CH4 evolved as a function of total carbon 

input to the process is a direct measure of the amount of carbon substrate being 

utilized by the microorganism (percent biodegradation). This forms the basis for 

various National (ASTM, EN) and international (ISO) standards for measuring 

biodegradability or microbial utilization of chemicals, and biodegradable plastics 

Recommendations for purchasing and packaging professionals 

Given consumer expectations, the FTC's direction and new California legislation, 

th·e BPI recommends that organizations wishing to use "biodegradable additives" 

ask the suppliers for the "scientific data" to address the following questions: 

1) For "compostable" products, does the entire application (film or package). 

meet all the requirements of ASTM 06400 or ASTM 06868? 

2) For "marine biodegradable", does the entire application (film or package) 

meet all the requirements of ASTM 7081? 

3) There are no ASTM specifications that dictate the overall level of 

biodegradation that must be achieved to make other "biodegradable" 

claims. However, the BPI recommends that the supplier demonstrate that 

90% of the entire plastic film or package (not just the additive) be 

converted to carbon dioxide under aerobic conditions (like soil burial) or 

carbon dioxide and methane under anaerobic conditions (as in an 

anaerobic digestor, or a landfill) based upon weight and carbon content 

Page3 February 12, 2010 

Attachment A, ECM BioFUms, Inc. Subpoena to BPI 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

relative to the positive control using the following . internationally 

recognized test methods as shown below: 

Claim Appropriate Recommended. Pass/Fail Threshold Time 

Test Limit 

Methods 

"Biodegradable" ASTM 05526 Based on correspondence to the BPI from the FTC, it Is likely that 

or '~Biodegrades or any unqualified "biodegradable" daim will be judged as deceptive, 

in a Landfill" ASTM 05511 regardless of the testing data. 

(anaerobic or httQ:£lwww.ftc.gov£os£adjgrg/d933§l09l218dvnaletter.gdf 

environment)_ ASTM 06776 

"Biodegrades in landfillsn claims are not recommended given recent FTC findings. 

"Biodegrades in ASTM 05988 90% conversion of test materials carbon to carbon dioxide 12~18 

Soils" or as relative to the positive control in the test months 

Litter 

Aerobic 

environment 

Note: Only one of the test methods needs to be used to verify the "biodegrades" or landfill 

daims. 

The 90% threshold relative to the positive control will insure that the entire 

plastic product can be consumed by the microbes (i.e. biodegraded) with no 

persistent residues. Additionally, the following conditions must be met: 

• The positive control shall reach a minimum of 70% biodegradation as 

specified in the test method. 

• Both the test and control samples must reach plateaus during the test. 

These plateaus represent the maximum level of biodegradation achieved. 

• Extrapolation of test data should not be a basis for meeting these criteria. 

• Test samples should not be subjected to "pre-conditioning" to promote or 

accelerate oxidation or degradation (such as high heat under dry 

conditions for long periods of time), especially for landfill claims. 

• Manufacturers shall make all .test reports available for review by interested 

parties. 

Below are 2 charts the depict examples of what is expected when data is 

presented. 

t~r---------~--~---------

eot-------~~~~~~~~1P.~~~ 

. 8 .7ot-----Jf---:-;;;zll"---....---::----

~ 80 ·---·--.f----:F--

J:~-,H~--------------~~--­ "' 30~-J.+-----~,.._;,~~=:......-­

z~~~--~~~~------~~ 

Page4 

1011 .----··-·-·-··-····-···~····---· - .. ---

801 

30-i---·---·: ...... -->f!-. :;;...._~- ! 6 70 I . 1··!------- ..;;,_ ----· ,:; __ , 

~ #0 +-1 --+------,~~--:--:----" ............... 

~~~------~~-------------

February 12, 2010 

Attachment A. ECM BioFilms, Inc. Subpoena to BPI 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

comments on Biodegradation in Landfills 

Manufacturers should understand that biodegradation that takes place in landfills 

can generate fugitive methane emissions which contribute to greenhouse gas 

production and climate change. Methane is 25 times more powerful as a 

greenhouse gas than carbon dioxide. 

Additionally, the US Federal Trade Commission ruled on June 9, 2009 that 

"biodegradable" claims on paper plates were misleading, as noted earlier in this 

document. This direction was reinforced in a letter to the BPI in December, 2010, 

which stated it is likely that any unqualified "biodegradable" claim will be judged 

as deceptive, regardless of the testing data. The complete letter can be found at 

the link below: 

htto:ljwww.ftc.gov /os/adjpro/d9336/091218dynaletter .pdf 

For these reasons, the BPI supports the· diversion from landfills of all potentially 

"biodegradable" materials. 

Where to turn if you have questions: 

The BPI will be happy to review and comment on any data provided to buyers, 

or packaging professionals by additive suppliers. (email: info@bpiworld.org). 

PageS Februar.y 12, 2010 

Attachment A, ECM BioFHms, Inc. Subpoena to BPI 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

UNITED STATES OF ~ERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Il;J.c., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31 (d) states: "In order to protect the parties and third parties 

against' improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.P.R. 

§ 3.3l(d). Pursuant to Commission Ruie 3.3l(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. . 

ORDERED: 

Date: October 22, 2013 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential·Material ("Protective Order") shall govern thehandling_of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "confidential material" shall referto any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

infonnation. "Sensitive personal information" shall refer to, but shall J:lOt be limited to, 

an individual's Social Security number, taxpayer identification number,. financial account 

number, credit card or debit card number, driver's license number, -state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission'' shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf; excluding persons 

retained as consUltants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes ofthis Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where th~ sub:rnitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties~ shall provide to each third 

party a copy ofthis Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation o.fconfidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

2 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents i.s confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of the document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to; (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of· 

record for any respondent, their associated attorneys and other employees of their law 

fmn(s), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing ofthis proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any perSon described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing oftl:lis proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

. or other paper filed or to be filed with. the Secretary ofthe Commlssion, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential mat~erial. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the fonnerly protected material. 

3 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

10. If counsel plans to introduce into evidence at the hearing any do.cument or transcript 

containing ~onfidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the p~ shall :file 

an appropriate motion With the Administrative Law Judge within 5 days after it rece~ves 

such notice. Except wh~re such an order is grantedt all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted. a duplicate cppy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material suQmitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the-submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective "Order and a 

cover letter that will apprise the ·submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or app~l any order requiring production of confidential material, 

to subject itself to any penalties for non*compliance with any such order~ or to. seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclostire of confidential material. In 

addition, nothing herein shall limit the applicabjlity ofRule 4.ll(e) of the Commission's 

Rules of.Practice, 16 CPR 4.1l(e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall-return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession ofsuch person, together with all notes, memoranda or other papers containing 

confidential infonnation. At the conclusion ofthis proceeding, including the exhaustion 

of judicial review~ the parties shall return documents obtained in this action to their 

submitters, provided, h9wever, that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice. 16 CFR 4.12. 

13. The provi~ions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, $hall, without written pennission of the 

su\>mitter or further order ofthe Commission, continue to be binding after the conclusion 

of this proceeding. 

4 

l 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

D .. o··.· .c· ·KE· .. · T· ·N·o· · .. ·9:35.·8· ·.. ·- .... , ·. . . . ' .. ·.• .. . . .. '. 

MOTION FOR COST REIMBURS:E,MENT 

T·O THIRD PARTY SUBP'OENAED BY 

RESPONDENTS 

EXHIBITB ,. . . 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

~chaei0.Zall~------------------ ATIORNEY AT LAW 

INTELLECTUAL PROPERTY 

PATENTS 

TRADEMARKS 

COPYRIGHTS 

Lou Caputo 

jonathan W, Emard 

Emord & Associates, P.C. 

3210'South Gilbert Road, Suite 4 

Chandler, AZ 852.86 

jemord@emord.com 

LCaputo@emord.com 

February 13,2014 

TWO YORKSHIRE QRIVE 

SUFFERN, NEW YORK 1'0901 

Tel: .(845) 357·6600 

Fax: (845) $S7-4616 

E-maif: Mike@Zafi-Law.com 

www.Zaii-Law.com 

Re: FTC v ECM BioFilms, Inc. (Docket No. 9358) 

Subpeona Duces Tecum Biodegradable Products Institute 

Gentl~men: 

Responsive to the Subpeona Duces Tecum to Biodegradable Products Institute, attached 

is a copy ofour response. This response, along with flash drives (2) having pdf copies of all of 

the responsive d<;>cuments (BPI#s 000001 through 0004357), has heene Express Mailed to you 

(Tracking# 80003 1544 0199). 

If you have any questions, cannot open the drives or need additional information. please 

do not hesitate to call. 

Please note, although this has been sent for next day delivery, we have very heavy snow 

situation in New York. I suspect it will arrive in several days. 

Very truly yours~ 

7·1 I 

I ~~ tlt_. 1 ldj .. ~:Jiflj .. MiJ{ael E. Zall 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

DOC-KET NO. '9358 

MOTION FOR COST REIMBURSE.MENT 

TO THIRD PARTY SUBPOENAED BY 

RESPONDE.NTS 

EXHIBITC 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

~chae/0. Za/1--------------------

ATIORNEY AT LAW 

Fein#90-0868590 

Mr. Steven Mojo 

Galatech 

PO Box 1481 

Cotuit, MA 02635 

5.0-083 New License Agreement 

6,0-12 ECM BioFilms 

February 28, 2013 

February 2014 Invoice 

TWO YORKSHIRE DRIVE 

SUFFERN, NEW YORK 10901 

Tel: (845) 357-6800 

Fax: (845) 357-4616 

E-mail: Mike@Zaii-Law.com 

www.Zaii-Law.com 

02/04 & 05-Review subpoena, tel call to Emord & Assoc., review court documents, tel 

conference with SM. (2) 

02/06-Tel confwith SM, review BPI article, correspondence to client (3/4) 

02/10-Review documents, unlock secure documents, convert to PDFs, 

and organize. (3) 

02/11-Prepare draft response, corresp. To SM (1.5) 

02/12-Prepare draft response, corresp. To SM (3.5) 

02/13-Finalize response, correspondence toECM attorney, 

research recompensation. (3) 

Federal Express charge 

TOTAL DUE $ 

$3200. 

$ 60. 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

DO.CKET NO. 9358 

MO,TION FOR COST REIMBURSE.MENT 

TO THIRD PARTY S,UBPOENAED BY 

RE-SPONDENT:S 

EXHIBITD 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

!Jl(;cliaele. Zaff _________ _ ATTORNEY AT LAW 

INTELLECTUAL PROPERTY 

PATENTS 

TRADEMARKS 

COPYRIGHTS 

Lou Caputo 

Jonathan W. Emord 

Emard & Associates, P.C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

February 20, 2014 

Re: FTC v ECM BioFilms, Inc. (Docket No. 9358) 

TWO YORKSHIRE DRIVE 

SUFFERN, NEW YORK 10901 

Tel: (845) 3&7-6800 

Fax: (845) 357-4616 

E-mail: Mlke@Zaii-Law.com 

www.Zaii-Law.com 

Invoice for document collection and organization for Subpeona Duces Tecum 

Biodegradable Products Institute 

Date 

02/04 

&05 

02/06 

02/10 

02/11 

02/12 

02/13 

Attorney Fees, Michael E. Zall (02/04-02/13) 

Description 

Review subpoena, tel call to Emord & Assoc., review court documents, 

tele conference with SM 

Tele conf with SM, review BPI article, correspondence to client 

Review documents, unlock secure documents, convert to PDFs, and 

organize. 

Prepare draft response, correspondence to SM 

Prepare draft response, correspondence to SM 

Finalize response, correspondence to ECM attorney, legal research 

Tota/14.25 Hours. @$225/Hr. (discountedrate) 

BPI time (02/02 - 02/13) 

Steven Mojo 24 hrs.@ $50./hour 

Federal Express charge 

$3200. 

Hrs. 

2 

.75 

3 

1.5 

3.5 

3.5 

$1800 

$60.00 

TOTAL DUE $5060. 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

DO.CiffiT NO. '9358 

MOTION FOR COST REIMBURSE.MENT 

TO THIRD PARTY SUBP'OENAED BY 

RESPONDENT_$ 

EXHIBITE . . .. . 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

Mike Zall 

From: 

Sent: 

To;, 

Mike :Zall <mike@)zaiHaw;com> 

TuesdC!y; March 18, 201412;23 PM 

'Lou \,:aputo' 

S1.1bject: RE::.BPI.INVOICE 

Remin4er a:fter our ponvers~ion. 

Michael.E •.. Za.Zl 

AttQrney (ntelle~a.I,Property & Corpor~e Tr;:m~actions 

TWO V~rJ<sl)ire Ptive 

suffern, NY 10901 

Office: (845} 3&7.-6800 

Mol'ii.le: (914}589-4828 

Fax:(845)·3S7-4616 

Mike@Zall-taw.com 

Frqm: Mil<e Z.all [mailto:mik~@zall;.;law;tom] 

sent~ 1\ilqnd_ay, March tp, 2014 9:ia AM T~: ;Lou-·eap·uto' 

Sub.jec;t: REt BPI INVOICE 

Reminder. 

Mtehael_E .. Zall 

Attorney 

1 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

lntellectuaiProperty & Corporate Transactions 

Two Yorkshire Drive 

Suffern, NV 10~01 

.Offlc:e.: (845) 357-6800 

Mof)ll~: (914) S$~·4B28 

Fax: (~45) 357-4616 

.Mike@)Zaii-Law.com 

From: Mike Zall Ilt!aiJto:mlke©zaiHaw.cam] 

sent: Friday, February 21, 20141:'08. PM 

T'o.; '!.;au Caputo' 

SJJ'Ili4!!:~; RE: BPI INVOICE 

.~hed js a. Supplemental ~d adjusted Invoic~ for $5060. 

Michael E. Zctll 

Attprney Jn.teH~ct1.1al Property &>Corpor.;rte Transactions 

rwc;. Yorkshire tlrive 

Suffern, NY 10901 

Office: (845)357-6800 

Mobile: (914) 589 .. 4828 

Fax: (845) 35.7·4616 

Mlke@Zaii·Law .com 
ECM Opp to BPI Motion for Reimbursement 

Attachment A | BPI Motion with Exhibits

Ff.9m.: Lou Capt,ito {mailto: LCap!Jto@emord.com] 

S~nt: Thursdayi February 20,.2014.2:·52:PM 

TO:: Mike zan · ~Siibjed:: REi BPI INVOICE 

HrMike, 

can you pleas~ sen~ <M~r t;~ojnvoice. that ipcluq¢~ an iteQ'Itzation of .the costs incurred? 

Tbank you very much~ 

Lou 

Lou ~pUto 1 EMoRD.& A$SOCIATEs, P~c. I 3210 s. Gilbert Rd., ste 4 1 Chandler, Nl:. 86286 Firm: (602} 388;-;8901 .I F~C$imHe: {60.2) 393-4381Lwww.ernord.c6m · 

NO'TICE: This 1s·a.confideritial communication intended for the recipi.ent listed above. The content oUhis communication is prOtected ftom.disclosure 

by tm• t;~tU:lrney.,.cHentprivil~ge ~d the worK prol:Juc!. dQ~rine. lfyoilla.i'e· not fh~intended. recfpient; you ~hould fre~ this' i;ammunication lis $tri~Ut 

@nti.dmial attCI i:>r9v.id~ it(Q the per8QointeM~. Olfpli~tipn or di$!ributiori ofthis cQmmurii¢atie>h i$ protiioit~d hyJh~ l'i\=irii;ler: ·1ft'hls. comm~ni¢a~ion 

has.b:een.sentto~u in error. pl'ease.no'tlfy the '$~nder $11d !lien immedlately !lestroy the document. 

·From: Mike zall'Imaiko:mike®zaiHaw.com] 

Sent:. Thursday, FebruCl,Y 20, 2014 9~37 AM 

To: Lou Caputo 

SubjeGt: BPIINVOICE 

Attached is BPI's invoice for :the collection and organization of documents; Please send the check to me. 

made. out to Int~matir>nal Biodegradable Product Institute. 

Thank you. 

Michael E. Zall 

Attornf!y lntell~ctu:al PrQpetty &. ~rporate Transat;tions. 

Two Yorkshire Drive 

suffern, NY 10901 

Office: (845}357 .. 6800