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 PROPOSED FINDINGS 

OF FACTS AND CONCLUSIONS OF LAW

I. Proposed Findings of Fact 

1. Plastic is a generic term used to describe high-molecular weight polymers. (CCX891, ¶ 28).

2. There are various plastics, but synthetic (laboratory-made), petroleum-based plastics 

are by far the most common. (CCX-891, ¶ 29); (McCarthy, Tr. 397) (stating that 

petroleum-based plastics make up the bulk of the plastics used today)). 

3. Plastics derived from petrochemicals are strong, durable, and inexpensive to 

manufacture, which make them ideally suited for commercial applications. These 

petroleum-based plastics (“conventional plastics”) represent over 90% of the 

commercial plastic market. (CCX-891, ¶ 29); (McCarthy, Tr. 397) (stating that 

petroleum-based plastics make up the bulk of the plastics used today)). 

4. The most common types of conventional plastic are high-molecular weight 

polyethylene (PE), used to manufacture plastic bags, packaging material, and bottles; 

and polyurethane (PUR), used in medical and industrial applications such as 

adhesives and paint. Also common is polypropylene (PP), used for disposable cups, 

clothing, storage containers, and DVD covers; and polystyrene (PS), which is used to 

make disposable cutlery and cups, foam packing peanuts, insulation, and fast food 

containers. (CCX-891, ¶ 30); (McCarthy, Tr. 397, 398) (listing examples of products 

made from different types of plastics)).

5. The characteristics that make conventional plastics commercially useful—strength, 

durability, synthetically derived from petrochemicals—make them highly resistant to 

biological attack. (CCX-891, ¶ 33, CCX-880 at 2); (McCarthy, Tr. 397-99) (defining 

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“conventional plastic” and stating that commodity plastics, PE, polypropylene, are 

polystyrene are generally considered nonbiodegradable)); (Burnette, Tr. 2432-2433 

(“[P]lastics are designed to be stable. Their product integrity is important. They have 

an intended use. Their product integrity is important. They have an intended use. 

They’re intended to be stable. That means that at a molecular level these are stable 

compounds.”)). 

6. Biodegradation is described as the chemical process by which microorganisms such 

as bacteria and fungi use the carbon found in organic materials as a food source. 

(CCX-891, ¶ 22; CCX-893, ¶18; RX-854, ¶ 1; RX-855 at 12, 13; CCX-880 at 2); 

(Tolaymat, Tr. 130); (McCarthy, Tr. 372-373); (Sahu, Tr. 1976 (confirming he 

defines biodegradation as breakdown of the plastic substrate through biological 

means)); (Burnette, Tr. 2374-75). 

7. Given enough time, all things are “biodegradable.” However, conventional plastics 

are not considered susceptible to biological attack. This process could take hundreds, 

if not thousands, of years. Therefore, it is commonly understood in the scientific 

community that conventional plastics are not biodegradable. (CCX-891, ¶¶ 33-34; 

CCX-892, ¶¶ 2-5); (McCarthy, Tr. 375) (polymers formed through addition 

polymerization are not considered biodegradable)); (McCarthy, Tr. 397-399 (defining 

“conventional plastic” and stating that commodity plastics, PE, polypropylene, are 

polystyrene are generally considered nonbiodegradable)); (Sahu, Tr. 1758-1759 

(conventional plastics last for “a very long time” in the environment after customary 

disposal, perhaps 10,000 or more years)); (Barlaz, Tr. 2292 (traditional plastics in 

general do not biodegrade at all)); (Michel, Tr. 2869 (“[d]oes polyethylene 

biodegrade over thousands of year. Well, yes, it does, but so do many other things, 

you know, which we would not consider biodegradable.”)) 

8. There are some plastics that are susceptible to biological attack, however these 

generally do not have the same durability and low cost of most commodity 

conventional plastics. (CCX-891, ¶¶ 34-35; See generally CCX-892; RX-855 at 9, 

n.6) (McCarthy, Tr. 399-404 (explaining that some plastics are biodegradable and that 

conventional plastics dominate the market due to price)). 

9. The high-molecular weight and chemical structure of most conventional plastics 

prevent naturally occurring microorganisms from accessing the carbon. (CCX-891, 

¶¶ 30, 32); (McCarthy, Tr. 375 (polymers formed through addition polymerization are 

not considered biodegradable because of their “carbon backbone . . . that doesn’t have 

any of these linkages that can be broken by the enzymes”)).

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10. Petroleum-based conventional plastics have only existed for a hundred years or so, 

not long enough for microorganisms to have evolved to degrade them. (CCX-891, ¶ 

33; CCX-880 at 2 (referring to plastics as xenobiotic)); (McCarthy, Tr. 375). 

11. Americans generate about 32 million tons of plastic waste every year, more than half

of which ends up in landfills. (CCX-893, ¶¶ 15-16; CCX-880 at 1); (Tolaymat, Tr. 

129 (in 2012 “plastic constituted over 12 percent of the total municipal solid waste 

generated or about 31.7 million tons of plastic”)). 

12. Landfills continue to be the dominant method for managing discarded waste (MSW) 

in the United States. Biodegradation in landfills is remarkably slow because typical 

U.S. landfills are primarily anaerobic environments with low-moisture. U.S. landfills 

are anaerobic, temperate, “dry tombs” by design; these conditions are engineered (and 

largely mandated by federal law) to facilitate the containment rather than stabilization 

of MSW. The life of organic biodegradable materials in landfills is anywhere from 

12 to 70 years. (CCX-893, ¶ 16; CCX-819 (Sinclair, Dep. at 9) (Q. But you would 

agree that most plastics are disposed of in landfills? A. Most plastics are at this time 

intended to end up in a landfill, or in other words, would more likely than not end up 

in a landfill.”)); (Tolaymat, Tr. 126 (“Landfilling is by and large the largest 

management option for municipal solid waste in the United States. About 54 percent 

of solid waste is managed in that capacity.”)); (Tolaymat, Tr. 133-134 (describing 

slow biodegradation process in landfill conditions)); (Tolaymat, Tr. 333-35 (the 

majority of landfills in the U.S. are “dry tomb” landfills)).

13. Due to their recalcitrant nature, plastics pose a growing disposal and environmental 

pollution problem. (CCX-895 at 11 (observing “[t]he massive islands of plastic 

pollution now collecting in the world’s oceans . . . , plastic particle pollution in 

naturalbodies of water like the Great Lakes . . ., and the plastic that pollutes many of 

the world’s beaches and natural areas . . . .”)); (RX-855 at 9 (“The parties can agree 

that conventional plastics are a large and growing portion of the solid waste disposal 

stream . . . persistence of plastic was products poses such an enormous environmental 

threat.”)).

14. Many consumers are concerned about environmental harms caused by plastic 

pollution: in a relatively recent survey, 62% of consumers said that they would be 

willing to pay a higher price for a product that is less burdensome on the 

environment. (CCX-865, ¶ 29; CCX-809 (Flexible, Dep. at 72) (“There is a lot of 

backlash against plastic bags. A lot of people don’t like plastic bags.”); CCX-800 

(BER, Dep. at 18) (“[Customers] were looking for a product they could mark as 

degradable to say that they were being, you know, environmentally sensitive. It’s 

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very important in their packaging, that they could...print it right on the package, you 

know, biodegradable.”); CCX-822 (ANS, Dep. at 13) (“People . . . don’t want to 

pollute the environment and this [biodegradable plastics] is what they choose to 

buy.”)).

15. In response to consumer demand, various materials have been introduced to improve 

the biodegradability of plastics. These include conventional plastics amended with 

additives meant to enhance biodegradability (e.g., photodegradable, oxodegradable, 

and biodegradable additives), bio-based plastics, and natural fiber composites. 

(CCX-891, ¶¶ 26, 34, 36; CCX-880 at 3). 

16. Intentionally Left Blank.

17. ECM exploits consumers’ environmental consciousness. “Green impact” is ECM’s 

sales pitch. For example, its website lists statistics on the environmental impact of 

plastic waste. (CCX-19 at 2; CCX-20 at 3 (“Who’s winning the war on plastics?”); 

RX-138; CCX-7 (sustainability brochure); CCX-21 (presentation)).

18. ECM claims to have a “revolutionary additive technology” that “renders. . . plastic 

products biodegradable . . . .” and ECM advises its customers that mixing 1% ECM 

Additive to non-degradable plastic, i.e., conventional plastic, “transforms” it into a 

biodegradable plastic (“ECM Plastic”). (CCX-3; CCX-15; CCX-19 (ECM website 

screenshots); CCX-20 (ECM website screenshots); CCX-24 (ECM website 

screenshots); CCX-25 (ECM website screenshots)); (Sinclair, Tr. 767 (Q: “What do 

you tell customers that the ECM additive will do?” A: “It makes their plastic product 

that they use it in biodegradable.”)). 

19. ECM sells its additive to plastic producers. (CCX-818 (Sinclair, Dep. at 62); CCX818 (Sinclair, Dep. at 217) (discussing distribution chain)); (Sinclair, Tr. 758, 759, 

787). 

20. A company called Microtech Research, Inc. owns the ECM additive technology, and 

ECM licenses the technology from Microtech. (CCX-818 (Sinclair, Dep. at 21) 

(explaining ECM-Microtec relationship); CCX-241 (ECM-Microtech licensing 

agreement)); (Sinclair, Tr. 1000 (Microtech owns the rights to the ECM additive)). 

21. Some of these manufacturers use the additive to make “biodegradable” products for 

purchase by retailers or end-use consumers. Other manufacturers simply make plastic 

(such as plastic “film”) that they sell to product and package manufacturers, who in 

turn sell to packagers, retailers, or end-use consumers. (CCX-818 (Sinclair, Dep. at 

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217); See also CCX-800 (BER, Dep. at 10-11)). 

22. Customers buy the ECM additive because they want biodegradable plastic—and they 

want to be able to advertise their plastic as biodegradable. (CCX-800 (BER, Dep. at 

17-18); CCX-801 (D&W, Dep. at 19-22); CCX-803 (DTE, Dep. at 39-40; 42-43; 45-

46); CCX-804 (Eagle, Dep. at 15-16); CCX-809 (Flexible, Dep. at 13-18); CCX-810 

(FP Int’l, Dep. at 15-16); CCX-811 (IPB, Dep. at 11-12); CCX-812 (Kappus, Dep. at 

14;15;19); CCX-817 (Quest, Dep. at 19-24; 26); CCX-822 (ANS, Dep. at 12-13)) 

(Sinclair, Tr. 774-75 (ECM customers buy the additive because “they want 

biodegradable products.”)). 

23. ECM has sold its product to approximately 300 customers. (CCX-747 at 7-68).

24. ECM’s “biodegradable plastic” has reached millions of end-use consumers. (CCX822 (ANS, Dep. at 26) (“millions” of shopping bags); CCX-803 (DTE, Dep. at 48-49) 

(3.5 million grocery bags); CCX-811 (IPB, Dep. at 74-75) (12-13 million shopping 

bags)).

25. ECM’s “biodegradable plastic” claims have also reached millions of consumers 

through advertising for a host of products and packages—ranging from grocery bags 

to shampoo bottles, Frisbees, golf tees, highlighters, storage cases, shoe soles, 

mailers, zippers, plastic cutlery, straws, and more. (CCX-30 (ad for biodegradable 

plastic bags); CCX-32 (apple bag with biodegradable logo); CCX-36 (biodegradable 

logo for bags and marketing material); CCX-37 (website ad for biodegradable cards); 

CCX-39 (website ad for biodegradable golf tees); CCX-40 (ad for biodegradable 

packaging); CCX-41 (ad for biodegradable bags and film); CCX-44 (art for bags with 

biodegradable logo); CCX-46 (biodegradable conditioner bottle); CCX-47 

(biodegradable label for shampoo); CCX-52 (labels for “certified” biodegradable 

bags and cases); CCX-56 (ad for biodegradable bags and cutlery); CCX-59 (ad for 

biodegradable supply bags); CCX-61 (ad for biodegradable bottle); CCX-63 

(biodegradable cold packs); CCX-64 (ad for biodegradable mailers); CCX-65 (ad for 

biodegradable trash bin); CCX-69 – 75 (various types of biodegradable plastic bags; 

CCX-76 (biodegradable credit card); CCX-79 (biodegradable zipper ad); CCX-96 

(biodegradable straws); CCX-97 (biodegradable cutlery); CCX-98 (biodegradable 

foam clamshells for food); CCX-103 (biodegradable Frisbee); CCX-112 – 122 

(various types of biodegradable bags); CCX-126 (biodegradable highlighter); CCX139 (biodegradable shoe soles); CCX-142 (ad for biodegradable air cushions)).

26. Every page of ECM’s website, ecmbiofilms.com, has displayed the repeating tagline, 

“Additives for Manufacturing Biodegradable Plastic Packaging and Products,” with a 

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description of ECM’s allegedly groundbreaking technology for biodegradable plastic. 

(CCX-22; CCX-19; CCX-24).

27. ECM has distributed brochures aimed at “green business” promising that its 

technology yields “biodegradable plastic products” that are “priced competitively 

with, and have the same mechanical characteristics as, traditional non-degradable 

products.” (CCX-7 at 5; RX-138).

28. ECM’s flyers have called ECM Plastics “Biodegradable” or “100% Biodegradable.” 

(CCX-3; CCX-12; CCX-15; CCX-17).

29. ECM’s letters have certified the biodegradability of plastics made with ECM 

Additive. (CCX-10; CCX-11). 

30. ECM’s emails with customers have echoed and expanded on unqualified 

biodegradable claims made in marketing materials. (CCX-317; CCX-341; CCX-342; 

CCX-344).

31. ECM is not the only company that offers a biodegradable additive. (CCX-6 (ECM 

marketing flyer explaining differences between ECM’s additive and competing 

technology); CCX-12 (same); CCX-17 (ECM webpage with same); CCX-21 

(presentation comparing compostable technologies with ECM additive)); (Sinclair, 

Tr. 775 (ECM sells its additive in a competitive market)).

32. ECM claimed that its additive causes plastic to completely biodegrade in nine months 

to five years. This claim has pervaded ECM’s marketing materials and customer 

communications. (CCX-3; CCX-5; CCX-6; CCX-7 at 6; CCX-10; CCX-19 at 5; 

CCX-242 at 15; CCX-245; CCX-269; CCX-275-CCX-280; CCX-283; CCX-296; 

CCX-299; CCX-303; CCX-326; CCX-384; CCX-809 (Flexible, Dep.at 20; CCX-800 

(BER, Dep. at 19; CCX-822 (ANS, Dep. at 13; CCX-812 (Kappus, Dep. at 14); 

(Sinclair, Tr. 768 (“We certainly have, you know, used those words out there . . .”)); 

(Sinclair, Tr. 974-975 (discussing Sinclair email characterizing 9 month to 5 year 

time frame as “a window of biodegradation”)); (Sinclair, Tr. 983 (discussing CCX 

1008, 2009 Sinclair email claiming that biodegradation time for most products will be 

nine months to five years)); (Sinclair, Tr. 1606 (discussing 2007 Sinclair affidavit)); 

(Sullivan, Tr. 716 (testifying that ECM told customers its additive would cause 

plastics to biodegrade in a landfill in nine months to five years)); (RX-135 at 1, 5). 

33. ECM claims that plastics treated with its additive will biodegrade in a landfill. 

(CCX-3; CCX-6; CCX-7 at 6; CCX-11; CCX-12; CCX-15; CCX-19 at 5; CCX-242 

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at 15; CCX-276; CCX-372). 

34. Competing technologies do not work in anaerobic environments like landfills. (CCX818 (Sinclair, Dep. at 77-78)).

35. ECM’s claims that ECM Plastics completely biodegrade in 9 months to 5 years and in 

landfills are material to its customers. (CCX-819 (Sinclair, Dep. at 231; 292); 

(Sinclair, Tr. 829 (“But the biodegradability is important to them [customers] in one 

fashion or another; otherwise, they wouldn't be coming to us.”)); (Sinclair, Tr. 922 

(“Rate wasn’t that big a deal for most people. And now we’ve progressed where we 

saw that you and others are all concerned with the rate, and so we had to make 

different anaologies and talk to him and others in other ways.”)); (Frederick, Tr. 

1157-1158 (stating, generally, that studies indicate that biodegradable claims matter 

to consumers)); (Sullivan, Tr. 721 (testifying that ECM customers often asked ECM 

how quickly its additive caused plastics to biodegrade)); (RX-135 at 5-6 (customer 

asks “how long in typical landfills does your plastic break down?”)).

36. ECM’s customers pass on the same or similar claims to ECM’s nine month to five 

year claim in their own advertising. (CCX-33 (9 months to 5 years claim in ad for 

AirPouch biodegradable air pillows); CCX-34 (9 months to 5 years and landfill 

claims in AirPouch “Sales and Marketing Alert”); CCX-37 (website ad for 

biodegradable cards claims 9 months to 5 years); CCX-38 (biodegradable packing ad 

claims 9-5 in landfill); CCX-38 (Customer’s FAQs for “Good Earth packaging” claim 

biodegradation in landfill); CCX-41 (Customer ad for biodegradable film and bags 

claim biodegradation in landfill); CCX-43 (landfill claim in ad for “enviroware”); 

CCX-44 & 45 (9 months to 5 years and landfill claims on art for grocery bag); CCX50 at 2 (landfill claim in ad for storage cases and boxes); CCX-57 (9 months to 5 

years claim in fact sheet for biodegradable vinyl); CCX-61 (landfill claim in ad for 

biodegradable bottle); CCX-105 (9 months to 5 years claim on ad for film); CCX-134 

(9 months to 5 years and landfill claims on bag); CCX-563 (9 months to 5 years and 

landfill claims on ad for air cushions); CCX-565 (9 months to 5 years and landfill 

claims on ad for loosefill); CCX-627 (9 months to 5 years and landfill claims on fact 

sheet for “Bio Ultra Blend Liners”); CCX-811 (IPB, Dep. at 40 (customer 

acknowledging passing of 9 months to 5 years and landfill claims to downstream 

customer))). 

37. After the Green Guides were issued, ECM removed many of its nine-month-to-fiveyears claims, replacing them with a disclaimer stating that “Plastic products produced 

with our additives will biodegrade in biologically-active environments (including 

most landfills) in some period greater than a year.” (CCX-819 (Sinclair, Dep. at 53 

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(discussing pulling the 9 month to 5 year claim off of website at the end of 2012)); 

CCX-231 (voluntary access letter dated 8/30/2011); CCX-20 at 2 (ECM website in 

March 2013)); (Sinclair, Tr. 770-771 (discontinued the claim when the revised Green 

Guides were released because to make a biodegradable claim “it had to be a year or 

less. And we knew, you know, our stuff isn’t going to be in a year or less . . . so we 

just said we’re more than a year.”)).

38. ECM did not change its claim until at least October 2012, even though ECM’s claims 

had been the subject of an FTC investigation since August 2011, and it did not 

completely remove the 9 months to 5 years claim until the end of 2013. (CCX-819 

(Sinclair, Dep. at 54 (discussing pulling the 9 months to 5 year claim off of website at 

the end of 2013); CCX-231 (voluntary access letter dated 8/30/2011)).

39. ECM continued to make the nine-month-to-five-year and landfill claims on its 

website even after it added its disclaimer. (CCX-25 at 104, 117, 203, 208). 

40. ECM continued to make the nine-month-to-five-year and landfill claims in its 

marketing materials that ECM distributed to customers, even after ECM added its 

disclaimer. (RX-138 at 9). 

41. ECM continued to make the nine-month-to-five-year and landfill claims in emails to 

customers even after it added its disclaimer. (CCX-259 (attaching flyer with 9 

months to 5 years and landfill claims); CCX-281 (April 2013 email describing “time 

frame of nine months to five years” in a landfill); CCX-282 (October 2013 email 

describing biodegradation “in a period of 9 months to 5 years” in landfills); CCX-286 

(May 2013 email stating, “we say nine months to five years for biodegradation to take 

place”); CCX-321 (July 2013 email explaining “time period of nine months to five 

years”); CCX-423 (October 2013 email describing 9 months to 5 years as the 

“typical” range); CCX-813 (Nealis, Dep. at 241-244 (Nealis acknowledging that he 

continued to send customers marketing flyer with 9 months to 5 years claim))). 

42. Sixty-two percent of respondents to the Synovate study agree with the statement: “If 

products I currently purchase were made less burdensome on the environment, I 

would be willing to pay a higher price.” (RX-856 at 24; CCX-865, ¶ 29). 

43. ECM’s disclaimer did not change its customers’ understanding of the additive’s 

function. (CCX-809 (Flexible, Dep. at 38 (“Q. Is it your understanding that there was 

a change in how the product worked? A. No. My understanding was a change in the 

rules, in terms of what we could call biodegradable . . . There wasn’t any change in 

the product.”)); CCX-809 (Flexible, Dep. at 29 (“Q. How quickly did you understand 

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the product would cause your product to break down when you made the greater than 

one year qualifier? A. ...That was our belief, was that in that range of nine month to 

five year, that that would fully degrade.”)); CCX-800 (BER, Dep. at 33 (“Q. During 

that time [“approximately 2009 to the beginning of 2014”], BER understood that 

plastic treated with the ECM additive should biodegrade in nine months to five years? 

A. Yes.”))). 

44. ECM claimed that independent tests proved its additive caused ECM Plastic to 

biodegrade in 9 months to 5 years in a landfill in its marketing materials. (CCX-4; 

CCX-5; CCX-6; CCX-10; CCX-11; CCX-21 (presentation)).

45. ECM claimed that independent tests proved its additive caused ECM Plastic to 

biodegrade in 9 months to 5 years in a landfill in its communications with customers. 

(CCX-266; CCX-270 at 2; CCX-277 at 4; CCX-281; CCX-296 at 2; CCX-298; CCX300; CCX-302; CCX-303; CCX-332; CCX-333; CCX-334; CCX-335; CCX-336; 

CCX-337; CCX-338; CCX-339; CCX-340; CCX-404 at 2)). 

46. ECM issued a “Certificate of Biodegradability of Plastic Products” to its customers. 

(CCX-1; CCX-446; CCX-454; CCX-455; CCX-492; CCX-509; CCX-557; CCX-567; 

CCX-612; CCX-613; CCX-837; CCX-727; CCX-756; CCX-824; CCX-800 (BER, 

Dep. at 29); CCX-802 (D&W, Dep. at 20-23); CCX-803 (DTE, Dep. at 25-26); CCX804 (Eagle, Dep. at 23-24); CCX-809 (Flexible, Dep. at 40-41); CCX-810 (FP Int’l, 

Dep. at 33); CCX-811 (IPB, Dep. at 12-18); CCX-812 (Kappus, Dep. at 24-25); 

CCX-817 (Quest, Dep. at 29); CCX-821 (3M, Dep. at 33;35); CCX-822 (ANS, Dep. 

at 17-18); (Sinclair, Tr. 783)). 

47. ECM’s “Certificate of Biodegradability” claims to “certify that numerous plastic 

samples, submitted by ECM Biofilms, Inc., have been tested by independent 

laboratories in accordance with standard test methods approved by ASTM, ISO and 

other such standardization bodies . . . .” (CCX-1 and CCX-14); (Sinclair, Tr. 890-891 

(certificate issued to SL Plastic Company Limited states that the “biodegradation of 

submitted plastic samples were tested using ASTM D5209-91 . . . and then ASTM 

D5338.”)). 

48. ECM’s Certificate of Biodegradability states that the tests “certifies [sic] that plastic 

products manufactured with ECM additives can be marketed as biodegradable” and 

the certificate itself can be “used by [customer] to validate its claims to the 

biodegradability” of ECM Plastic. (CCX-1 and CCX-14). 

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49. Microtech commissioned the McLaren/Hart report. (Sinclair, Tr. 1702-1703). 

50. ECM often provided the “McLaren/Hart” or “ChemRisk” assessment to its 

customers. (CCX-732 (“Ecological Assessment of ECM Plastic,” Prepared by 

ChemRisk, A Service of McLaren/Hart Inc., Feb. 16, 1999); CCX-266; CCX-322; 

CCX-333; CCX-334; CCX-335; CCX-336; CCX-337; CCX-338; CCX-339; CCX340; CCX-818 (Sinclair, Dep. at 125 (“Q. And do you provide copies of this test to 

your customers? A. I think so. Yes, I believe we have many, many times.”));

(Sinclair, Tr. 1010) (Sinclair “absolutely” sent the McLaren/Hart report to 

customers)); (Sinclair, Tr. 1702); (Sinclair, Tr. 1000-1001). 

51. The testing claim was essential to ECM’s business, giving ECM credibility with its 

target audience, plastic manufacturers and other businesses. (CCX-818 (Sinclair, 

Dep. at 93 (“[Customers] want to see data from an outside lab.”); CCX-813 (Nealis, 

Dep. at 20) (Q: What is the purpose of that certificate? A: To give to our customers to 

show that we have tested. It states in there that we have tested it to three different 

standards, ASTM standards. Q: And why is that important? A: To show that our 

product is biodegradable.”)).

52. And ECM’s customers passed the testing ECM gave them (or ECM’s testing claims) 

on to their customers. (CCX-35 (Customer’s FAQs for “EarthAware Biodegradable 

Film” claim “independently tested” and offer certificate as proof); CCX-38 

(Customer’s FAQs for “Good Earth packaging” claim that “[i]ndependent labs...have 

substantiated all our claims”); CCX-41 (Customer ad for biodegradable film and bags 

claim “thoroughly tested by independent laboratories”); CCX-64 (Customer ad for 

“Cool Stuff Mailers” claims “certified biodegradable”); CCX-246 (customer passing 

testing claims to downstream customer); CCX-257 (same); CCX-258 (same); CCX261 (same); CCX-491 (same)).

53. ECM routinely provided the biodegradability certificate to its customers. (CCX-813 

(Nealis, Dep. at 20) (explaining that ECM routinely provided the certificate)); 

(Sinclair, Tr. 783); (Sinclair, Tr. 784). 

54. ECM routinely told its customers that ECM had “proof” of its claims. (CCX-329 (“I 

would think your customers want proof the product is biodegradable and ECM 

Biofilms offers that proof.”); CCX-301 (“We have done testing to prove the 

biodegradation...”); CCX-298 (“[W]e already proved what we needed to prove . . 

.”)).

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55. ECM stood behind its claims. (CCX-323 (“We stand behind every product sold with 

our additives as ‘biodegradable’ and have successfully been doing this in the 

marketplace around the world for over 10 years”); CCX-331 (“We fully stand behind 

our products’ efficacy based on the [testing] that we have and so can your 

customer.”); CCX-380 (“[W]e have tested the mentioned ASTM test standards and 

we stand behind the biodegradation of our product with the ECM BioFilms 

additive.”)).

56. The Certificate of Biodegradability was a means of assuring customers and ECM’s 

customers’ customers that ECM’s additive worked as advertised. (CCX-272 (ECM 

providing customer with certificate “assuring you and your customers that the 

products made with our additives are fully biodegradable”); CCX-200 (same); CCX341 (same); CCX-344 (same); CCX-346 (same); CCX-347 (same); CCX-348 (same). 

See also CCX-273; CCX-278; CCX-282; CCX-290; CCX-304; CCX-305; CCX-306; 

CCX-321 (ECM advising customer to “use” the certificate to prove claims); CCX343 (ECM attaching certificate in response to request for “written validation” that 

additive will cause biodegradation in a landfill); CCX-419 at 3; CCX-681 (“Now in 

order to use in in [Palace’s] products, they need your help in receiving a certification 

that their product is biodegradable. They need an official certificate that they can 

show whenever it is necessary and that none can sue them for fraud.”); CCX-818 

(Sinclair, Dep. at 183 (“[I]t’s like having a guarantee on your box.”))); (Sinclair, Tr. 

783-784 (“we then fill out one of these biodegradable certificates that we send to 

them, saying that, okay, to you and to your customers, here is our statement that says, 

because you’re complying with us, that your plastic products with our additives are 

going to be fully biodegradable.”).

57. ECM also used testing claims and the certificate to convince customers to purchase 

the additive without doing their own testing. ECM repeatedly told customers that 

testing was unnecessary due to ECM’s own testing and its assurances in the 

certificate; testing would only create unnecessary costs and delay. (CCX-298; CCX300 (thanks to the ECM certificate, no “need to incur the expense of duplicating our 

test results”); CCX-301 (“Due to the high cost and time needed we don’t send 

samples out for testing. These tests can cost up to $25,000 and take over a year. We 

have done testing to prove the biodegradation and I have attached those for your use 

and review.”); CCX-302 (“We do have concerns regarding how to test to confirm the 

biodegradability . . . To address your concerns about testing, because we have third 

party independent testing of our additive in plastic ECM BioFilms certifies that when 

used at a minnimum [sic] of 1% the product is biodegradable.”); CCX-303; CCX-304 

(“First remember that none of this [testing] needs to be done as we certify your 

products...”); CCX-305 (“Concerning testing, yes it is very expensive which is why 

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most all customers rely on our certification from our hundreds of thousands of dollars 

of testing over the years rather than going through the expense themselves”); CCX304 (Sinclair to Shields: “First remember that none of this [testing] needs to be done 

as we certify your products with our additives . . . .”); CCX-306; CCX-390 (“Testing 

is very expensive, which is why most customers rely on our certification”); CCX-394 

(“Asked about testing – not necessary”); CCX-818 (Sinclair, Dep. at 185 (“Q. Does 

ECM encourage its customers to rely on its certificate in lieu of testing? A. Again, we 

want as fast and quick a sale as we can possibly get.”)).

58. ECM’s customers relied on ECM’s representations about its proof, i.e., the testing 

and the Certificate of Biodegradability. (CCX-822 (ANS, Dep. at 16 (“Q. Did you 

rely on ECM’s testing as the evidence that the product worked as advertised? A. 

Yes.”); CCX-800 (BER, Dep. at 24 (“Q. Did BER rely on ECM’s testing as proof that 

its additive worked? A. Yes.”); CCX-803 (DTE, Dep. at 28-29 (“Q. Did that fact [that 

ECM claimed to have tested] give Down to Earth comfort that ECM’s product would 

perform as advertised? A. Yes.”); CCX-804 (Eagle, Dep. at 32 (“Q. Did your 

company rely on ECM’s claims relating to the alleged biodegradability of plastics 

containing its additive? A. Yes.”); CCX-809 (Flexible, Dep. at 34; 38; 51 (explaining 

that he understood the certificate’s purpose to be “so that we can certify that that...if 

somebody wants to see evidence that our bags are biodegradable, this is what I would 

provide them.”); CCX-811 (IPB, Dep. at 40 (“Q. Island Plastic bags was relying on 

ECM for its interpretation of the McLaren/Hart report. A. Yes.”); CCX-812 (Kappus, 

Dep. at 22 (“Q. Did Kappus rely on ECM’s testing as proof that its additive worked? 

A. Yes, 100 percent.”)).

59. ECM customers posted the Certificate of Biodegradability on their websites. (CCX39 (excerpt from customer website displaying certificate); CCX-265 (email regarding 

downstream customer interest in posting certificate on website)).

60. ECM customers provided the Certificate of Biodegradability to their downstream 

customers. (CCX-822 (ANS, Dep. at 18; 28; CCX-800 (BER, Dep. at 30 (“Q. Why 

did you give [the certificate] to each customer that purchased the product? A. To 

certify that it was biodegradable . . . .”); CCX-800 (BER, Dep. at 18 (“Originally one 

of my customers asks how can you prove that my bag is biodegradable, they get the 

certificate...”); CCX-804 (Eagle, Dep. at 25-26 (“Q. And is this a certificate that you 

forward to your own customers who are interested in buying blown film containing 

the ECM additive? A. Yeah.”); CCX-811 (IBP, Dep. at 18 (“Q. In fact, IPB regularly 

sent copies of the certificate to prospective customers of Island Plastic Bags. A. Yes. 

Q. IPB did that to provide prospective customers with assurance that ECM bags 

would in fact biodegrade. A. Yes.”); CCX-34 (“Airpouch Sales & Marketing Alert” 

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stating that “[s]ending this [certificate] to your customer should be your first response 

for validation”); CCX-257 (ECM customer providing certificate to its customer); 

CCX-258 (same); CCX-261 (same); CCX-345 (customer asking ECM for certificate 

because it “[h]elps me with sales.”); CCX-351 (customer asking ECM for certificate 

“hot rush back to me as my customer in California is going to drop our products 

without some sort of proof that our products [are] biodegradable”)). 

61. ECM customers copy the language from the Certificate of Biodegradability verbatim 

in their own marketing materials. (CCX-812 (Kappus, Dep. at 22 (“We basically took 

the information that ECM had on their paperwork and moved it to our letterhead, 

transposed it on our letterhead . . .”); CCX-812 (Kappus, Dep. at 26-27 (explaining 

that most of the language from CCX-837 and CCX-838 was taken from ECM’s 

marketing materials); CCX-62, CCX-458, CCX-459 (customer certifications with 

ECM certification language)).

62. ECM sells the right to make a “biodegradable” advertising claim. (CCX-819 

(Sinclair, Dep. at 277 (stating that he advised customers to market biodegradability); 

CCX-21 at 30 (“Conclusion” of ECM marketing presentation is that “Products can be 

marketed as ‘biodegradable’...”); CCX-330 (Email from ECM Sales Director to 

potential customer: “If you or your customers want an additive to make your bags 

totally biodegradable and they want to say so on the bags let me know.”)). 

63. ECM provides its customers with the ECM biodegradable logo to place on their 

products, packaging, and advertisements. (CCX-819 (Sinclair, Dep. at 432 (Q. What 

claims did you intend to convey with the old logo to end-use consumers? A. That the 

product is biodegradable.); CCX-809 (Flexible, Dep. at 24-25 (explaining that he 

provided logo that ECM sent him to his customers so that they could use it as a “sort 

of label on the box for, you know, for customers to see.”); CCX-308 (email in which 

ECM advises customer on use of its logo); CCX-309 (same); CCX-316 (same); CCX317 (same); CCX-319 (same); CCX-320 (same); CCX-322 (same); CCX-358 (ECM 

providing logo); CCX-359 (same); CCX-361 (same); CCX-362 (same); CCX-364 

(same); CCX-374 (same); CCX-403 at 1 (same); CCX-411 (same)). 

63. ECM biodegradable logo is a picture of a green tree with the words “ECM” and 

“Biodegradable.” (CCX-8 and CCX-13). 

64. Many customers use the ECM logo, especially on plastic bags. (CCX-816 (Poje, Dep. 

at 52; CCX-822 (ANS, Dep. at 24; CCX-803 (DTE, Dep. at 42; CCX-307 at 2 

(customer explaining to ECM employee that he wanted to use the ECM logo on his 

bag); CCX-32 (portion of “biodegradable” apple bag with ECM logo); CCX-39 

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(excerpt from CHAMP website advertising biodegradable gold tees with ECM logo); 

CCX-44 (“biodegradable” grocery bag with ECM logo); CCX-47 (“biodegradable” 

shampoo container with ECM logo); CCX-73 – CCX-75 (“biodegradable” shopping 

bags with ECM logo); CCX-118 (“biodegradable” detergent bag with ECM logo); 

CCX-134 (bag with ECM logo); CCX-621 (kitchen bags with ECM logo); CCX-623 

(restaurant bag with ECM logo)). Less frequently, customers used the ECM leaf 

logo. (See, e.g., CCX-46; CCX-114; CCX-123). 

65. ECM provides its customers with marketing materials for the customer to use when 

selling ECM “biodegradable” plastic. (CCX-816 (Poje, Dep. at 37); CCX-822 (ANS, 

Dep. at 20-21); CCX-350 (ECM providing flyers that “may be used for marketing”); 

CCX-364 (“You and your customers can use the attached logos...and their related 

promotional material.”); CCX-368 (giving customer’s “marketing department” 

permission to use ECM’s flyer “as they see fit”); CCX-369 (recommending making 

sales “using the tools that we have given you”); CCX-370 (attaching “sales tools you 

may find helpful for your sales team”); CCX-373 (attaching “a good tool for your 

sales team”); CCX-387 (attaching marketing materials “for your sales team”); CCX390 at 2 (attaching “flyer that might be useful for your sales people”)).

66. ECM’s Director of Sales, Thomas Nealis, specifically advised customers to refer 

consumers to the ECM website. (CCX-308; CCX-320). 

67. ECM’s Director of Sales, Thomas Nealis, specifically advised customers to use 

ECM’s flyer for marketing. (CCX-3; CCX-15; CCX-259; CCX-259A; CCX-266; 

CCX-266C; CCX-267; CCX-267E; CCX-271; CCX-271D; CCX-368; CCX-373; 

CCX-387; CCX-390 at 2; CCX-492 at 6). 

68. ECM instructed customers to make unqualified biodegradable claims. (CCX-818 

(Sinclair, Dep. at 42-43 (testifying that biodegradable would be a very reasonable 

claim for putting on an item in response to the question whether ECM advised its 

customer to use the biodegradable claim); CCX-819 (Sinclair, Dep. at 277 (“Q. So 

you advised your customers to use the term biodegradable in their marketing? A. 

Right.”); CCX-260 (customer informing downstream customer of ECM’s feedback 

on marketing claims: “This bag is Biodegradable” or “This bag is manufactured from 

100% Biodegradable plastic”); CCX-315 (advising customer “you do not need to 

mince words with our additives”); CCX-316 (advising customer to use ECM logo and 

“state ‘totally biodegradable’”); CCX-317 (advising customer on color and language 

for claim such as “Biodegradable” or “This Liner Is Totally Biodegradable”); CCX319 (suggesting that bag be labeled “Biodegradable/Recyclable”); CCX-320 

(recommending “‘packaging and product biodegradable’ or simply biodegradable’”); 

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CCX-321 (recommending using logo or printing “biodegradable” on bag)).

69. ECM provided detailed guidance on a customer’s specific ad copy. (CCX-283 

(offering to customer to “work together on particular language that [downstream 

customer] would want”); CCX-307 at 1 (correcting advertising claim); CCX-308 

(suggesting specific copy for biodegradable claim on bags); CCX-309 (same); CCX397 (correcting customer’s claim); CCX-408 (sending ECM’s “rewriting” of 

customer’s website page); CCX-562 (suggesting specific advertising language to 

place on bag made of ECM plastic); CCX-1095)). 

70. ECM was integrally involved in developing and approving the marketing claims for 

“biodegradable” grocery bags used by a Hawaiian grocery store chain called Down to 

Earth All Natural and Organic (“Down to Earth”). ECM offered its approval of 

Down to Earth’s biodegradable claims in its press releases and on its bags. ECM 

recommended that specific, technical language about biodegradability be included in 

Down to Earth’s claims. (CCX-497 (approving 2009 press release); CCX-498; CCX803 (DTE, Dep. at 54-56)). 

71. Robert Sinclair is the President of ECM. (CCX-818 (Sinclair, Dep. at 9, 62, 63; 

CCX-819 (Sinclair, Dep. at 378-379)); (Sinclair, Tr. 745). 

72. Mr. Sinclair is ECM’s “main sales contact” and takes responsibility for ECM’s 

claims. (CCX-350 (email from A. Poje to customer describing Sinclair’s role); CCX818 (Sinclair, Dep. at 194 (testifying“ . . . but certainly everything in this company 

that has to do with claims or anything else about the product, you know, comes 

directly from me. I'm the final say on everything.”))); (Sinclair, Tr. 915 (Sinclair 

agrees he is the “only person at ECM who is responsible for reviewing and approving 

claims”)).

73. Mr. Sinclair advises customers on both marketing and the “science” behind ECM’s 

technology. (CCX-813 (Nealis, Dep. at 56-57; CCX-816 (Poje, Dep. at 22, 223; 

CCX-819 (Sinclair, Dep. at 343 (“Q. . . .Is there anyone in your staff who has inhouse expertise on scientific testing? A. I am the person that handles all claims, 

everything to do with scientific testing and everything to do with anything of that 

sort.”)); (Sinclair, Tr. 908 (Sinclair is the one who is “ultimately responsible at ECM 

BioFilms for addressing issues that come up with . . the science”)). 

74. Mr. Sinclair is a lawyer by training. (CCX-818 (Sinclair, Dep. at 7-8; CCX-819 

(Sinclair, Dep. at 393-394)); (Sinclair, Tr. 745-746); (Sinclair, Tr. 912). 

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75. Mr. Sinclair does not have any formal science training beyond a smattering of high 

school and undergraduate science classes, some time teaching science in the 

Cleveland Public Schools, and reading Scientific American. (CCX-818 (Sinclair, 

Dep. at 149-150)); (Sinclair, Tr. 746 (Q: “Are you a scientist?” A: “No, I’m not. 

I’m a layperson that has a good background in science and I’ve very much read a lot 

of science and think about it, and so forth, all the time, but no, I’m not a scientist.”)).

76. ECM’s Director of Sales is Thomas Nealis. (CCX-819 (Sinclair, Dep. at 14 (“Q. 

Again, who is Tom Nealis? A. Tom Nealis is the Director of Sales located in 

Indiana”); CCX-813 (Nealis, Dep. at 9-10 (“Q. Do you have a particular job title? A. 

My title is Director of Sales. You can call me anything you want, but bottom line, I’m 

a salesman.”)); (Sinclair, Tr. 761). 

77. Mr. Nealis disavows knowledge about most aspects of ECM’s business and customer 

relationships. (See CCX-813 (Nealis, Dep. at 10-12)). 

78. Mr. Nealis claimed that he did not know how many customers ECM had. (CCX-813 

(Nealis, Dep. at 10)).

79. Mr. Nealis claimed that he did not know why they wanted to buy the ECM additive. 

(CCX-813 (Nealis, Dep. at 12)).

80. Mr. Nealis claimed that he did not know the size of ECM customers. (CCX-813 

(Nealis, Dep. at 13).

81. Mr. Nealis does not have any college degree. (CCX-813 (Nealis, Dep. at 53). 

82. Until mid-2013, ECM’s Regulatory Specialist was Alan Poje. (CCX-816 (Poje, Dep. 

at 11; 31)); (Sinclair, Tr. 843 (Poje worked as ECM’s regulatory affairs specialist)).

83. Mr. Poje advised customers on plastics extrusion (the mechanics of adjusting the 

manufacturing process to incorporate the ECM additive). (CCX-816 (Poje, Dep. at 

22).

84. Mr. Poje had business cards describing himself as ECM’s “Vice President for 

Engineering Development” and he described himself this way to at least one 

customer. (CCX-816 (Poje, Dep. at 32 – 33) (discussing CCX-677, an email in which 

Mr. Poje described himself to a customer as Vice-President of Engineering 

Development)). 

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85. Mr. Poje claimed that he never actually filled the role of “Vice President for 

Engineering Development.” (CCX-816 (Poje, Dep. at 31; 32-34)). 

86. Many of ECM’s customers and downstream users are relatively small companies—

“mom and pop”-type businesses. (CCX-819 (Sinclair, Dep. at 304); CCX-813 (Poje, 

Dep. at 14-15)). 

87. ECM’s customers show that they did not have the resources or know-how to evaluate 

ECM’s biodegradability claims (beyond seeking information from ECM itself) or 

conduct their own testing. (CCX-809 (Flexible, Dep. at 34-38 (answering series of 

questions about resources and ability to evaluate ECM’s additive with uniform 

answers: insufficient resources and ability to independently evaluate); CCX-800 

(BER, Dep. at 21-24) (same); CCX-822 (ANS, Dep. at 14-16) (same); CCX-803 

(DTE, Dep. at 13-19) (same); CCX-811 (IPB, Dep. at 34-38) (same); CCX-812 

(Kappus, Dep. at 18-21) (same); CCX-804 (Eagle, Dep. at 31-32) (same); CCX-817 

(Quest, Dep. at 34) (same)). 

88. Island Plastic Bags is still a small company—only about 16 employees and, as such, 

does not employ anyone with any expertise related to biodegradability. (CCX-811 

(IPB, Dep. at 33-38)). 

89. Island Plastic Bags reviewed ECM’s testing (the McLaren/Hart Report), but had no 

way to evaluate whether the testing had been properly conducted and could reliably 

support its conclusions. (CCX-811 (IPB, Dep. at 38-40)). 

90. Despite its sophistication in manufacturing, Island Plastic Bags needed to rely—and 

did, in fact, rely—on ECM when it came to understanding biodegradability. Island 

Plastic Bag’s story is not unique. For example, the deposition of Eagle film extruders 

shows that the company “couldn’t perform” any testing because it doesn’t “have any 

of that testing equipment internally....Way too big of a thing for us to manage, being 

a small company.” (CCX-811 (IPB, Dep. at 40); CCX-804 (Eagle, Dep. at 25)). 

91. Other customers did have the resources to conduct or commission their own testing. 

(CCX-172 (email between employees of potential ECM customer, identifying 

inadequacies in each of ECM’s tests); CCX-173 (test on ECM plastic commissioned 

by potential ECM customer)). 

92. 3M is a global manufacturer with approximately $30 billion in sales (employing 75-

80,000 people). (CCX-821 (3M, Dep. at 12:)). 

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93. 3M has its own environmental laboratory, with ready capacity to conduct its own 

testing of ECM’s additive. (CCX-821 (3M, Dep. at 18-19)). 

94. 3M conducted a biodegradation study that showed no biodegradation of plastic 

containing the ECM additive. 3M is not unique. Other companies had sufficient 

sophistication in evaluating biodegradation to test and reject ECM’s additive. For 

example, Covidien identified the potential issues related to the additive, and sent 

plastic with the ECM additive to an independent laboratory, Organic Waste Systems, 

for testing—which showed no biodegradation of ECM plastic. (CCX-153; CCX-154 

and CCX-155 (project outline and data collection showing the rigor of 3M’s testing 

process); CCX-230; CCX-254-256; CCX-157 (test); CCX-158 (presentation 

summarizing test); CCX-821 (Joseph, Dep. at 66, Ex. 17)). 

95. Some companies had the resources to commission testing—but did not have the 

expertise to meaningfully evaluate the results. (CCX-802 (D&W, Dep. at 65, 94-95); 

CCX-801 (D&W, Dep. at 16-18; 25)). 

96. ECM customers turned to Mr. Sinclair, ECM’s president, for guidance in 

understanding negative results. (CCX-323-CCX-325 (Sinclair explains away bad test 

results); CCX-954)). 

97. Correspondence with these customers shows that Mr. Sinclair is adept at explaining 

away negative test results by assuming testing flaws and bias. (CCX-325 (explaining 

negative results because of testing has “fundamental problems”); CCX 575; CCX422)). 

98. Intentionally Left Blank. 

99. Mr. Sinclair also learned to steer potential customers away from testing labs that 

provided negative results and towards labs whose dubious testing protocols could 

produce a semblance of positive results. (CCX-422 at 53-61). 

100. Intentionally Left Blank.

101. Intentionally Left Blank.

102. ECM’s spurious claims have not gone unnoticed; repeatedly, customers, distributors, 

and others informed Mr. Sinclair and ECM that ECM’s testing did not substantiate its 

claims. (CCX-250; CCX-253 (“We chose ECM because of your strong claims for 

biodegradability, and now it seems we are unable to defend them.”); CCX-323; CCXPUBLIC DOCUMENT
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327; CCX-328; CCX-375; CCX-381; CCX-382; CCX-386; CCX-391; CCX-400; 

CCX-402; CCX-409; CCX-428 (“Every scientist we have spoken to tell us that your 

claims are false and impossible to prove. We cannot put our name on a product that 

we cannot stand behind.”)). 

103. Mr. Sinclair knew that the National Advertising Division of the Better Business 

Bureau and at least two foreign tribunals had found that several ECM customers had 

made false and unsubstantiated biodegradability marketing claims (that used the very 

language that ECM assured its customers was backed by testing) concerning products 

containing the ECM additive. (CCX-26; CCX-27; CCX-28; CCX-177; CCX-178; 

CCX-179; CCX-180; CCX 181; CCX-182; CCX-183; CCX-184; CCX-185; CCX186; CCX-187; CCX-188; CCX-189; CCX-190; CCX-191; CCX-375; CCX-471; 

CCX-203-207; CCX-214-215; CCX-219; CCX-225; CCX-222; CCX-570; CCX-810 

at 47-49; CCX-184; CCX-188-CCX-193; CCX-696); (Sinclair, Tr. 1625 (upon 

receipt of the Masternet NAD decision, Sinclair offered to prepare a point-by-point 

refutation)); (Sinclair, Tr. 1630-1634 (admitting receiving copy of NAD decision 

against FP International)); (Sinclair, Tr. 1636-1637 (Sinclair was aware of the 

Dispoz-o NAD decision)). 

104. ECM continued making its claims and routinely dismissed criticisms as nothing more

than bias against the company. (CCX-323; CCX-324). 

105. Mr. Sinclair has referred to Professor Narayan as, among other things, “very biased,” 

and a “paid proselytizer.” (CCX-818 (Sinclair, Dep. 284-289); (CCX-251; CCX-253; 

CCX-289; CCX-294)). 

106. Mr. Sinclair has also accused entities such as the Biodegradable Products Institute 

(“BPI”) and Organic Waste Systems, Inc. (“OWS”) of being biased opponents of 

ECM. (CCX-819 (Sinclair, Dep. at 260 (describing BPI as “rabid opponents of us”); 

262-281; 362); CCX-21 (describing BPI as “prime mover in the obfuscation 

campaign” conflating biodegradable and compostable technologies); CCX-251; 

CCX-253; CCX-273; CCX-290; CCX-295; CCX-297; CCX-422 at 54-63 (Sinclair 

accusing OWS of bias and skewing test results due to politics)); (Sinclair, Tr. 1692-

1697 (discussing OWS’s perceived bias and involvement with the “corn lobby”)). 

107. ECM advertises on its website, www.ecmbiofilms.com. (CCX-25; CCX-726). 

108. The ECM website is publicly available and has been visited by at least some end-use 

consumers. (CCX-326; CCX-819 (Sinclair, Dep. at 312-314)). 

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109. Landfill conditions do not support short degradation times in a landfill. (CCX-893 at 

10-12 (“Biodegradation in landfills is remarkably slow because typical U.S. landfills 

are primarily anaerobic environments that are relatively cool with low-moisture.”); 

RX-853 at 3 (“[T]he suggestion that all materials should biodegrade within one, or 

even five years of disposal is not consistent with even the highest rates of 

biodegradation expected for [landfills].”); (Tolaymat, Tr. 133-134); (Tolaymat, Tr. 

145); (Tolaymat, Tr. 155-156 (“it’s going to take obviously more than five years for a 

– even the most biodegradable material to completely decompose in a landfill 

environment, even under the optimum conditions of wet landfills”).

110. Since the Green Guides’ revision in October, ECM has developed a version of its 

logo with the “some period greater than a year” disclaimer. However, ECM never 

told customers to stop using the old logo and customers have continued to use the old 

logo. (CCX-819 (Sinclair, Dep. at 277-278, 407, 412-413)). 

111. ECM’s marketing materials contrast the “hundreds or thousands of years” that it takes 

for conventional plastics to biodegrade with ECM Plastics as biodegradable in a 

“hundredth” of that time or less. (CCX-19; CCX-21 (“[A]ll of the commodity 

plastics used in the world today will take hundreds of thousands of years or more to 

degrade naturally in the environment; Plastic productions with the ECM [Additive] 

will biodegrade . . . in a hundred thousandth of that time or less.”)). 

112. ECM’s marketing materials repeatedly reference landfills. (CCX-3; CCX-6; CCX-7 

at 7; CCX-10 at 2; CCX-12; CCX-15; CCX-21 at 22; CCX-25 at 1). 

113. ECM’s marketing materials specifically contrast its technology as working in landfills 

with other degradable alternatives that do not. (CCX-17). 

114. ECM’s marketing materials with the new claim, “biodegrades in sometime greater 

than one year,” still contrasted long biodegradation times for untreated plastic to the 

fraction of time for ECM Plastic. (CCX-25 at 104 (“Petrochemical plastics would 

normally take hundreds or thousands of years or even longer to biodegrade; with our 

additives, these same plastic formulas biodegrade in a hundredth of that time or 

less.”)).

115. Intentionally Left Blank.

116. Intentionally Left Blank.

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117. Intentionally Left Blank.

118. Intentionally Left Blank.

119. Intentionally Left Blank.

120. Intentionally Left Blank.

121. Intentionally Left Blank.

122. Intentionally Left Blank.

123. Intentionally Left Blank.

124. Intentionally Left Blank. 

125. Intentionally Left Blank.

126. Intentionally Left Blank.

127. ECM’s experts have opined that it would be unreasonable to believe that plastic 

products will biodegrade in one year or even five years because these times are 

inconsistent with even the shortest expected degradation times. (See, e.g., RX-853 at 

3 (“[T]he suggestion that all materials should biodegrade within one or even five 

years of disposal is not consistent with even the highest rates of biodegradation 

expected for mixed MSW.”); RX-855 at 8 (“[T]he expectation that all plastics with 

the ECM additive added in the usual amount (i.e., at a level of 1 or at most a few 

percent) should completely . . . degrade in typical landfill conditions, in a time period 

of 1 year or even 5 years, is unrealistic.”)). 

128. Dr. McCarthy is a professor of Plastics Engineering at the University of 

Massachusetts Lowell with more than thirty years’ experience studying both the 

chemical and mechanical behavior of polymers, including their biodegradability. 

(CCX-891 at 3-5); (McCarthy, Tr. 359, 361). 

129. ECM recommends that a small concentration, 1% to 5%, of its Additive be meltbatch blended with a non-biodegradable conventional plastic, such as polyethylene.

(CCX-4; CCX-17; CCX-818 (Sinclair Dep. at 164-166)); (Sinclair, Tr. 787-788 (1% 

ECM additive must be added during the manufacturing process to ensure that the 

additive remains viable in the finished product)); (Sinclair, Tr. 790 (if a manufacturer 

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adds less than 1% by weight, the product will not biodegrade at all)) (Sinclair, Tr. 

797-798); (Sahu, Tr. 1813 (ECM additive is added to plastics by “blending through 

melting and then recooling afterwards”)). 

130. A physical blend of a biodegradable polymer with a conventional plastic does not 

alter the chemical structure of the conventional plastic, a view resoundingly supported 

by the literature cited by ECM’s own experts. (CCX-891, ¶ 64; CCX-895 at 13 

(“Addition of additives into conventional plastics does not increase the carbonyl 

content of the plastic nor does it reduce the molecular weight of the high molecular 

weight polymers or add hydrolysable linkages or unsaturated carbon bonds.”); CCX895 at 13-14 (“Consistent with this fact [that additives do not affect the chemical 

structure of the conventional plastic], studies in which even large percentages of 

starch have been incorporated into PE (50% to >80%) do not show any improvement 

in the biodegradation of the PE fraction (Nakashima et al., 2002). For example blends 

of 50% and 83% starch added to polyethylene displayed a maximum of 49% and 78% 

weight loss upon 16 months incubation in soil (Nakashima et al., 2002).”); 

(McCarthy, Tr. 387); (CCX-892 ¶¶ 10-16 (explaining why the articles cited by Dr. 

Sahu are irrelevant to ECM’s claims)); (Michel, Tr. 2873-2875). 

131. Because the additive does not alter the chemical characteristics that make 

conventional plastics resistant to biodegradation, the non-biodegradable plastic 

component is no more susceptible to biodegradation after blending than it was before.

(CCX-891, ¶ 64); (McCarthy, Tr. 387). 

132. Even assuming ECM Plastic degrades faster (e.g., by breaking the plastic into smaller 

pieces), the amount of time it would take for the conventional plastic to completely 

biodegrade would not be reduced to five years or even decades in any environment. 

(CCX-891, ¶ 65); (McCarthy, Tr. 385); (Sahu, Tr. 1953-1954 (ECM plastic would 

take 30 years to completely biodegrade, possibly up to 100 years on the “very, very 

high side”)). 

133. ECM Plastic could take as long as the conventional plastic to biodegrade (because it 

still consists of 99% conventional plastic), or even longer (if the fragmented pieces 

become recalcitrant to biodegradation). (CCX-891, ¶ 65); (McCarthy, Tr. 386 

(“ECM plastics will not completely break down in an appreciably faster rate than 

conventional plastics without the ECM additive”)); (McCarthy, Tr. 681-82 (testifying 

that conventional nondegradable plastics treated with 1% ECM additive will not 

completely break down into elements found in nature within one year)); (McCarthy, 

Tr. 682 (testifying that conventional plastics treated with 1% ECM additive will not 

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completely break down into elements found in nature within 5 years)). 

134. The Competent and Reliable Scientific Evidence standard is consistent with the level 

of substantiation expected from experts in the field, who view claims of 

biodegradable conventional plastic with great skepticism. (CCX-891, ¶ 37; see also

CCX-892). 

135. To satisfy polymer scientists that 1% additive will make conventional plastics 

biodegradable in a stated timeframe and disposal condition, the claimant should 

provide the results of appropriately-analyzed independent, well-designed, wellconducted, well-controlled testing. The testing should use the appropriate plastic 

application, load rate, inoculum, test conditions, and sample weight, over an 

appropriate duration of time. (CCX-891, ¶ 38); (McCarthy, Tr. 412). 

136. Dr. Tolaymat states that tests must simulate landfill conditions if the claim is disposal 

in such conditions. Our experts independently conclude that ECM’s evidence falls 

short of these requirements for several reasons. (CCX-891, ¶ 81; CCX-893, ¶¶ 50, 

59-85)); (Tolaymat, Tr. 176); (Tolaymat, Tr. 202 (faulting ASTM D5511 tests 

because they do “not simulate a landfill environment”)); (Tolaymat, Tr. 296-297). 

137. The tests conducted by Dr. Barber rely on a weight loss methodology. (CCX-892, 

¶ 24); (Barber, Tr. 2100 (Dolco tests primarily involved a weight loss methodology to 

determine biodegradation)); (Barber, Tr. 2106-2109 (Dispoz-o, EDS, FP International 

tests primarily involved a weight loss methodology to determine biodegradation)). 

138. The scientific community does not consider weight loss tests alone sufficient for 

determining biodegradation. (CCX-892, ¶¶ 24-26; RX-855 at 41 (“It is conventional 

wisdom, now, with some justification, that the only true indicator of biodegradation 

is, in fact, gas evolution. . . .”); RX-855 at 42); (McCarthy, Tr. 414, 457). 

139. Our experts criticize ASTM D5511 as a basis to support ECM’s claims. (CCX-891, 

¶¶ 51-53; CX-892, ¶ 21; CCX-893, ¶¶ 77-84); (Tolaymat, Tr. 202-212); (McCarthy, 

Tr. 452 (most problematic tests on ECM plastics were the 5511 tests)). 

140. ECM’s experts and Tom Poth of Eden Laboratories criticized ASTM D5511. (RX853, at 8 (Dr. Barlaz stating “[M]any of the tests used to measure biodegradability, 

e.g., ASTM D5511, are designed to measure intrinsic biodegradability.”); RX-854, 

¶ 65 (Dr. Burnette stating “The ASTM D5511 test is not representative of all possible 

MSW landfill conditions.”)); (Poth, Tr. 1522-1523 (confirming that the witness told 

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Sinclair that the 5511 test was “on its way out” and “a cheap-and-dirty test”)).

141. Timothy Barber’s tests are unreliable. (CCX-891; see also RX-854, ¶ 71 (referring to 

the tests as inconclusive)).

142. Northeast Lab’s tests of ECM plastic are unreliable. (CCX-891, ¶ 88). 

143. Eden Lab’s tests of ECM plastic are not competent and reliable. (CCX-891, ¶ 89); 

(McCarthy, Tr. 687-88 (testifying that the D5511 tests conducted by Eden 

Laboratories are not competent and reliable)); (McCarthy, Tr. 465-466 (testing he 

reviewed related to ECM additive yielded unreliable results)).

144. Stevens Ecology, O.W.S., North Carolina State University, and Ohio State University 

tests show very little (or in some cases no) biodegradation of ECM Plastics under a 

variety of conditions. (CCX-891, ¶¶ 75-86).

145. ECM claimed to render conventional plastics “totally,” “completely,” “fully,” and 

“100%” biodegradable. (CCX-3 (“fully”); CCX-7 at 7 (“fully”); CCX-10 

(“completely”); CCX-12 (“100%”); CCX-316 (“totally”); CCX-317 (“totally”)). 

146. ECM conveyed that plastics completely biodegrade in most landfill environments. 

(CCX-15; CCX-25 at 1). 

147. Tests must be conducted for a sufficient length of time to demonstrate that the entire 

treated plastic, not just the biodegradable additive, will be consumed. (CCX-891, 

¶ 38f). 

148. Biodegradation tests must show at least 60% biodegradation to support a claim of 

complete biodegradation. (CCX-891 ¶ 38f). 

149. ECM rests its claim of complete biodegradation on the assumption that once started, 

biodegradation will go to completion. (CCX-15 (“The process continues until the 

plastic products become part of the organic components of the soil just like 

biodegraded sticks or other pieces of wood become part of the soil.”)). 

150. The scientific community rejects extrapolation of biodegradation results. (CCX-891, 

¶ 55; CCX-892, 892, ¶¶ 22, 23; CCX-83 (ASTM D5511 precludes extrapolation of 

results)); (McCarthy, Tr. 477-478); (Sahu, Tr. 1795-1796 (testifying that it would be

“unusual” to extrapolate a time to complete biodegradation from a rate derived from a 

test); (Barber Tr. 2081-2082 (conceding that rates of biodegradation cannot be 

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extrapolated beyond the precise environmental conditions or to other plastics)).

151. Mechanism of action to explain how ECM Plastics will biodegrade to completion.

(CCX-4). 

152. ECM’s expert concedes that the presence of a biofilm does not indicate that the 

microorganisms are using the plastic as a food source. (RX-840 at 41-43). 

153. Intentionally Left Blank.

154. To support claims of biodegradation in landfill conditions, the experts agree that tests 

should be run at appropriate temperatures with appropriate anaerobic bacteria. (CCX893, ¶ 51; CCX-891, ¶ 38c and d; RX-853 at 7-9); (Tolaymat, Tr. 203 (faulting 

ASTM D5511 for calling for a temperature that is “much higher than what you would 

expect to see in a municipal solid waste landfill”)); (McCarthy, Tr. 391-392); 

(McCarthy, Tr. 442-443 (D5526 tests are preferable to D5511 tests for longer-time 

degradation results, in part, because they simulate “slower-degrading materials at a 

temperature that’s closer to landfill conditions”)); (Barlaz, Tr. 2300 (testifying that 

for the purpose of determining whether a material is biodegradable in a landfill, only 

anaerobic testing conditions are relevant)).

155. Hot temperatures could cause abiotic degradation of plastic that would not occur at 

more typical landfill temperatures of 37oC. (RX-943 (Barlaz, Dep. Tr. at 82); RX843 at 142). 

156. The types of anaerobic bacteria that survive at the hotter temperatures are not the 

same types of anaerobic bacteria that operate at the cooler landfill temperatures. 

(RX-943 (Barlaz, Dep. Tr. at 82); CCX-893, ¶ 54); (Tolaymat, Tr. 141). 

157. In tests conducted under the appropriate temperature range, virtually no 

biodegradation was observed. (CCX-946; CCX-951; CCX-954).

158. At least a significant minority of consumers extrapolate rate and extent information 

concerning biodegradation times. (CCX-860, ¶¶ 43-44). 

159. Robert Sinclair knew the 9 month to 5 year claim was false. (CCX-818 (Sinclair, 

Dep. at 75 (“Q. Are you the only person at ECM who is responsible for reviewing and 

approving [] claims? A: “At this point, yes.”); CCX-818 (Sinclair, Dep. at 81 (“Q. 

“[W]hen you came up with the nine-month-to-five-year claim, what did you base that 

on? A. Again, nine months to five years is not really the claim. It’s only when you 

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guys brought it up that it really like comes down to, Oh, what do you base that on and 

so forth, what’s all this.”); CCX-818 (Sinclair, Dep. at 81-82 (testifying that the 9 

months to 5 years claim “was simply a frame of reference to get things out of the 

6400 realm, that we’re not talking about that, that we’re talking about true 

biodegradation of things like a piece of wood.”)); (Sinclair, Tr. 986-988). 

160. Intentionally Left Blank. 

161. Intentionally Left Blank.

162. Intentionally Left Blank.

163. ECM knew that the ASTM 5511 protocol was not a pass/fail standard. (CCX-963). 

164. ECM routinely conveyed to its customers that ECM Plastics were “certified to”; 

“passed”; or met the ASTM 5511 standard. (CCX-288). 

165. ECM customers made unqualified claims. (CCX-308; CCX-50). 

166. Even in landfills that are considered to be the most conducive to biodegradation (socalled “bioreactors”), Dr. Barlaz reports a range of degradation times for MSW 

anywhere from 24 (for rapidly biodegrading food waste) to over 200 years (for slowly 

degrading wastes). (RX-853 at 3, 14); (Barlaz, Tr. 2297 (explaining that even under 

accelerated biodegradation conditions, readily degradable municipal solid waste will 

not completely biodegrade in less than five years)).

167. Dr. Barlaz conducted at least four biodegradation tests of ECM Plastics under the 

Biochemical Methane Potential Test (BMP). (CCX-946-CCX-948; CCX-952; CCX933; CCX-951; CCX-953; CCX-954); (Barlaz, Tr. 2306-20). 

168. The results of one of Dr. Barlaz’s BMP tests showed no methane production. (CCX951). 

169. The results of three other BMP tests by Dr. Barlaz showed negligible amounts of 

methane production. (CCX-952; CCX-946; CCX-954).

170. Landfill conditions do not support rapid degradation times. (RX-853 at 3, 14; RX855 at 8). 

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171. The ECM Additive is mostly a synthetic biodegradable polymer like 

polycaprolactone (PCL). (CCX-891 ¶ 61). 

172. The amount of methane generated in Dr. Barlaz’s tests exceed the amount of methane 

attributable to the additive. (Compare CCX-951 and CX-954 with CCX-946 

(determining the methane potential of the ECM Additive alone)). 

173. Dr. Barlaz offers no opinion in his expert report regarding the biodegradability of 

ECM Plastics. (RX-853).

174. There are several tests that also report no biodegradation was observed at the 

conclusion of the test. (CCX-164; CCX-174-CCX-176; CCX-156; CCX-157; CCX163; CCX-169-CCX-171). 

175. According to Dr. Barlaz, the “BMP is an appropriate screening tool for 

biodegradability in landfills although the actual volume of methane generated in a 

landfill may well be less than that measured by a BMP test.” (CCX-952 at 1). 

176. ECM experts Drs. Burnette and Barlaz concede that they are not polymer scientists 

and do not have the expertise to opine specifically on the biodegradability of plastics.

(See RX-840 (Burnette, Dep. at 65-66, 68, 204-5) (Dr. Burnette: (1) admitting he does 

not understand the role crystallinity plays in polymer biodegradation; (2) identifying 

“oxobiodegradable” as a “slang term”; and (3) admitting not being offered as a 

polymer expert); CCX-943 (Barlaz, Dep. at 26-27, 142) (Dr. Barlaz discussing (1) 

that he is not a polymer chemist, so he cannot speak to whether a non-homogenous 

polymer could be considered biodegradable; and (2) how one would need to be a 

polymer chemist to understand whether a plastic could be abiotically transformed at 

the temperatures of the ASTM D5511)). 

177. Dr. Barber’s test looks to measurements of free chloride as an indicator of 

biodegradation. (CCX-892 at 12).

178. Dr. Barlaz stated that he was skeptical of the ASTM D5511 test. (CCX-948).

179. ECM expert Dr. Burnette concedes that the presence of a biofilm does not indicate 

that the microorganisms are using the plastic as a food source. (RX-840 (Burnette, 

Dep. at 41-43)). 

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180. Dr. Stephen Joseph, a 3M chemist, consulted with colleagues who were immediately 

suspicious of ECM’s claims. (CCX-821 (3M, Dep. at 43, Ex. 7)). 

181. Based on their suspicions of ECM’s claims, 3M conducted its own test to determine if 

ECM’s additive would make a plastic blend biodegrade to any extent. (CCX-821 

(3M, Dep. at 60, Ex. 17)). 

182. ECM’s expert concedes aerobic tests (with oxygen) are irrelevant to claims of 

biodegradation in landfills. (RX-853 (Barlaz Report at 7) (“To begin, for purposes of 

biodegradability under landfill conditions, only anaerobic biodegradability is of 

relevance.”)).

183. ECM expressly claims that its additive enables conventional, non-degradable plastic 

to fully biodegrade in nine months to five years in a landfill since at least 2005. 

(CCX-274A; CCX-701).

184. ECM’s technical data sheets contained the unqualified biodegradable claim. (RX683; RX-327 at 3; RX-326 at 5). 

185. ECM’s pricing sheets contain the unqualified biodegradable claim. (RX-330; RX331). 

186. ECM’s customers used unqualified biodegradable claims to market their products. 

(CCX-30-31 (APM marketing); CCX-33 (Earth Aware marketing materials); CCX-39 

(CHAMP marketing materials); CCX-40 (Good Earth marketing materials); CCX-41 

(Crayex marketing materials); CCX-43 (D&W marketing materials); CCX-46 (photo 

of Green Natura bottle with unqualified biodegradable claim); CCX-47 (photo); 

CCX-49 (Epsilon Plastics marketing materials); CCX-50 at 2 (Flambeau); CCX-51 

(Flexible Plastic); CCX-52; CCX-56, RX-229, RX-15, RX-16 (IPB); CCX-59 

(Medical Arts Press); RX-00 (AMPAC); RX-02 (Sentry Green); RX-26 (Eaton)).

187. ASTM D5511 is a screening-level test designed to evaluate whether the test specimen 

is capable of biodegrading under optimal conditions. (CCX-891 ¶¶ 51-53 (ASTM 

D5511 is conducted under optimal conditions)).

188. Dr. Sahu’s report and testimony estimate biodegradation times anywhere from 30 

years to as long as 100 years for the thinnest of plastic films that contain ECM 

Additive. (RX-855 at 44); (Sahu Tr., 1953-1954). 

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189. ECM concedes that conventional plastics are not biodegradable. (CCX-818 (Sinclair, 

Dep. at 56)).

190. Scientists view claims of biodegradable plastic with great skepticism. (CCX-891, ¶ 

37; See also CCX-892). 

191. ECM’s expert David Stewart testified as follows:

QUESTION: Assume that plastics manufactured with the ECM additive will not 

in fact biodegrade in landfills in less than five years. . . . Given that assumption, you 

would agree with me, wouldn’t you, that prohibiting that claim would serve consumer 

welfare?

STEWART: If it’s not true, yes, prohibiting that specific claim would serve 

consumer welfare. 

QUESTION: Assume that plastics manufactured with the ECM additive will not 

in fact biodegrade in landfills in less time than plastics made without the additive. . . . 

Given that assumption, you would agree with me, wouldn’t you, that allowing that 

claim would not serve consumer welfare; correct?

STEWART: I would agree with that, yes. 

QUESTION: . . . . In this regard, you views with respect to policy really turn on 

the science; correct? 

STEWART: That is correct, yes. (Stewart, Tr. 2804-2805). 

192. “Convergent validity” refers to the degree that studies employing different 

methodologies yield similar results. (Frederick, Tr. 1057-1058); (See also CX-865 at 

13).

193. Professor Shane Frederick gave the following example regarding convergent validity: 

There’s a genuine question [in fisheries about whether tuna fish] have a body 

temperature which is higher than the external water in which they swim. And so one 

could imagine trying to ascertain the [answer] to this by embedding thermometers . . . 

inside of a live tuna fish. And suppose that you had three different thermometers 

constructed by three different companies using three different designs, and you 

embedded all three in the tuna fish, and . . . . suppose that you got back the results 

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from these three different designs: 75 degrees, 73 degrees, 74 degrees. You can 

conclude with a considerable degree of certainty that that tuna fish’s temperature is 

around 74 degrees because . . . they are different[ly] designed thermometers. They’re 

all yielding essentially the same result. That’s convergent validity. (Frederick, Tr. 

1058-1059). 

194. In 2006, the American Plastics Council (“APCO”) conducted an approximately 1000-

respondent telephone survey. (Frederick, Tr. 1037); (CCX-860 at 7). 

195. The survey focused primarily on plastic products; and 60% said that packages 

labelled “biodegradable” should biodegrade within one year or less. (Frederick, Tr. 

1037); (RX-597 at 2). 

196. In 2010, a company (EcoLogic) manufacturing a plastic additive similar to ECM’s 

product engaged a survey firm (Synovate) to conduct a 2000-respondent internet 

panel survey. (Frederick, Tr. 1046-1047). 

197. In the Ecologic study, 25% stated that “less than one year” was a reasonable amount 

of time for a “biodegradable” package to decompose in a landfill. (RX-673 at 4; 

CCX-860 at 11). 

198. In 2014, Complaint Counsel engaged Professor Frederick to conduct surveys through 

Google Consumer Surveys (“GCS”) to assess how much time consumers believe 

plastic products labelled “biodegradable” will take to biodegrade. (Frederick, Tr. 

1114). 

199. Professor Frederick conducted twelve GCS surveys addressing this issue—each 

employing different wording an images—and the results ranged from 20%-52%. 

(CCX-860 at 30-32).

200. Professor Frederick estimated that, overall, 35% believe plastic products will 

biodegrade in one year or less. (“Q: Based on your research and expertise, in your 

professional opinion, what percentage of American consumers believe that a plastic 

product labelled ‘biodegradable’ will biodegrade completely within a year in a 

landfill?” A: I would say 35 percent.”). (Frederick, Tr. at 1180-1081). 

201. In 2014, ECM’s expert, Dr. Stewart, supervised a 400-participant landline survey. 

(Stewart, Tr. 2687); (RX-856 at 18, 23).

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202. Dr. Stewart never asked respondents to estimate how long it would take plastic 

products labelled “biodegradable” to biodegrade. (Stewart, Tr. 2629-2630). 

203. Dr. Stewart’s landline callers asked (without specifying a material or that the product 

was labelled “biodegradable”): “If something is biodegradable, how long do you 

think it would take for it to decompose or decay?” (Stewart, Tr. 2777). 

204. Of the 400 respondents, 206 gave codeable estimates, and of those 206, 33% gave 

estimates of one year or less. (Stewart, Tr. 2790). 

205. Many respondents gave nonspecific responses such as “I don’t know,” “it depends,” 

or other responses not quantifiable as a specific biodegradation time estimate. 

(Stewart, Tr. 2790). 

206. Dr. Stewart’s landline callers read ECM’s “some period greater than a year” 

disclaimer to respondents, and asked: “In your own words, what does this claim 

mean to you?” (Stewart, Tr. 2796). 

207. Although Dr. Stewart did not ask respondents to estimate biodegradation times, 150 

respondents still gave estimates. Of those respondents—and notwithstanding the 

disclaimer—50% (75 respondents) gave estimates of a year or less. (Stewart, Tr. 

2796); (Stewart, Tr. 2804). 

208. Professor Frederick cited the convergent validity between these different studies to 

conclude that, overall, the conclusion that at least a substantial minority of consumers 

believe that plastic products labelled “biodegradable” will biodegrade within one 

year. (Frederick, Tr. 1043-1044 (“[O]ften in cases like this where the construct of 

interest is not something readily determinable by some other method, you need to 

compare the results of one survey to the results of other surveys and see whether . . . 

those results are giving you the same result, the same fact. That’s sort of known as 

convergent validity. And as you do different surveys—if different surveys using 

different designs conducted by different people at different times, independent 

surveys, are yielding the same results, then you can gain confidence that those results 

are valid, that they’re measuring what they intend to measure.”)); (Frederick, Tr. 1145 

(“[T]his is a study that was done at a different time using a different methodology. 

We call it APCO. It was a telephone study. This is a Google Consumer Survey. I 

did this survey, not APCO. It was done eight years later, and so forth, and yet you’re 

getting responses that are not too different from the ACPO study.”)); (Frederick, Tr. 

1155 (“Q: How [do the results of your GCS study] relate to . . . convergent validity? 

. . . . This can be an illustration [] that when you have different studies using different 

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methodologies conducted by different investigators at different times using slightly 

different question wording, different images, and so forth, and yet in all these cases 

you’re getting estimates that are on the order of a third [of year-or-less responses]”)); 

(Frederick, Tr. 1173 (“We have an issue again where there’s three different studies 

conducted independently by different people using different designs—phone, Internet 

survey, Google Consumer Surveys—that are yielding results which are qualitatively 

comparable to one another and therefore I think providing evidence of convergent 

validity of the results obtained.”)). 

209. An already overwhelming argument becomes even stronger if one moves the 

benchmark to five years. In APCO, 65% of respondents believe that packages 

labelled “biodegradable” should biodegrade within four years. (RX-597 at 2).

210. Of 206 respondents in Dr. Stewart’s survey who gave specific estimates about how 

long an unspecified material would take to biodegrade, 58% estimated within five 

years. (Stewart, Tr. 2791). 

211. According to Synovate, 45% of consumers believe that “less than five years” is a 

reasonable amount of time for a “biodegradable” package to decompose in a landfill. 

(RX-673 at 4; CCX-860 at 11).

212. In Professor Frederick’s GCS research, depending on the type of question and the 

wording, from 40% to 76% of respondents understood that a plastic product labelled 

“biodegradable” would biodegrade within five years. (CCX-860 at 30-33). 

213. Of the twelve questions Professor Frederick asked directly addressing this subject, 

more than 50% of respondents understood that a plastic product labelled 

“biodegradable” would biodegrade within five years in nine of twelve cases. (CCX860 at 30-33).

214. Dr. Stewart’s attempt to rebut convergent validity reflects his confusion: 

QUESTION: Is it, in your view, possible to rehabilitate a survey that is flawed 

by reliance on another survey you regard as also flawed? 

. . . . 

STEWART: Two surveys that are both flawed don’t produce an unflawed and 

valid survey. Two flawed surveys are still both flawed, and the fact that they might 

reflect something similar may simply reflect the fact that they share the same flaw.

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QUESTION: What if I gave you three flawed surveys? Would that make a 

difference?

STEWART: You could give me three, four, five. If they’re all flawed, 

they’re—you know, they’re not valid. They may all even produce the same outcome, 

but that outcome could be produced because they all share the same flaw. (Stewart, 

Tr. 2619-2620). 

215. Dr. Stewart acknowledged that “[n]o study is perfect.” (Stewart, Tr. 2766). 

216. Professor Frederick is an academic who has not testified before, and who focuses 

primarily on research and teaching. (Frederick, Tr. 1026). 

217. When asked, on cross-examination, “[w]hat do you consider to be the generally 

accepted survey principles that define a valid survey?,” Professor Frederick 

responded: “A valid survey is one which produces accurate results.” (Frederick, Tr. 

1187). 

218. Professor Frederick collected approximately 29,000 responses to approximately sixty 

different questions he designed and paid GCS to pose. As he explained at trial, 

Google pays approximately 340 mainstream internet content providers to present 

survey questions to internet users who would otherwise need to pay to receive the 

content. Put differently, GCS gives internet users the opportunity to obtain content 

from behind a paywall in exchange for answering the GCS survey question. To the 

extent possible, GCS then infers certain demographic information (gender, 

approximate age, geographic region, urban density (whether the respondent resides in 

an urban, suburban, or rural area), and income range based on the respondent’s IP 

address and browsing history. GCS then reports this demographic information, along 

with the exact results of the survey, back to the researcher (in this case, Professor 

Frederick). (Frederick, Tr. 1062-1064); (CCX-863 (results); CCX-867 (product 

overview); CCX-868 at 3 (product summary); CCX-976 (GCS illustration Professor 

Frederick prepared and testified about); CCX-1074 (Google promotional video 

explaining GCS); CCX-865 at 3 (discussing Professor Frederick’s teleconferences 

with Google)). 

219. Every piece of data collected in response to each of Professor Frederick’s questions is 

the record (in Excel format). (CCX-863). 

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220. Based on this data, and as noted above, Professor Frederick opined that 35% of 

consumers believe that a plastic product labelled ‘biodegradable’ will biodegrade 

completely within a year in a landfill.” (Frederick, Tr. at 1180-1081). 

221. “Psychographic representativeness” means that the sample reflects the psychological 

characteristics (such as beliefs, opinions, or attitudes) of the population at large. 

(Frederick, Tr. 1395). 

222. Although demographic representativeness is correlated with psychographic 

representativeness, the differences between the two measures are particularly 

important in survey because a survey sample may match the demographics of 

American consumers perfectly, yet come nowhere close to matching the beliefs and 

attitudes of American consumers. (Frederick, Tr. at 1066); (Frederick, Tr. 1065-

1066). 

223. The differences between psychographic and demographic representativeness is 

pertinent because people who use the internet and are willing to respond to a single 

Google survey question are more likely to be psychographically representative than 

people with landlines who are willing, without compensation, to take an 

approximately twelve-minute survey. (Frederick, Tr. 1395-1396 (opining that GCS 

has greater psychographic representativeness than telephone surveys, in-person 

research, or internet panel studies)); (Stewart, Tr. 2698-2699) (testifying that, in his 

study, the average call length was twelve minutes, with an approximate range from 

five to twenty minutes)).

224. The population of American internet users is more demographically and 

psychographically representative of the population of American consumers than other 

potential survey media, such as internet panels, landline surveys, or “mall intercept”-

style face-to-face interviews. (Frederick, Tr. 1395-1396). 

225. This is true partly because the survey mechanism is much less intrusive than other 

types of surveys, and partly because the percentage of the population that uses the 

internet is enormous (85% in 2013). (Frederick, Tr. 1067); (CCX-865 at 4). 

226. 40% of Americans do not have a landline. (CCX-865 at 4). 

227. Shortly after Google introduced GCS in 2012, the independent Pew Research Center 

compared the results of its own telephone survey of internet users with GCS 

respondents. (CCX-874). 

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228. Pew concluded: “A comparison of several demographic questions asked by Pew 

Research indicates that the Google Consumer Surveys sample appears to conform 

closely to the demographic composition of the overall internet population.” (CCX874 at 2).

229. Pew reported the following demographic data: 

 Pew GCS 

 (percentages)

Gender

Male 49 53 

Female 51 47 

Age

18-24 16 20 

25-34 24 20 

35-44 43 53 

45-54 -- --

55+ 26 28 

Race-ethnicity

White 69 68 

Black or African American 11 10 

Asian or Asian American 3 5 

Hispanic or Latino 13 10 

Other or mixed race 4 7 

Marital Status

Married 52 48 

Widowed 4 5 

Divorced/Separated 12 12 

Never married 25 27 

Living with a partner 6 8 

Don’t know 1 --

Homeownership

Own 63 63 

Rent 33 37 

Other/Don’t know 4 --

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Church Attendance

Weekly or more 38 35 

Less often 60 65 

Don’t know 2 --

(CCX-874 at 5). 

230. As a practical matter, the demographics of Pew’s respondents and the demographics 

of GCS respondents are the same. (Frederick, Tr. 1070). 

231. PEW compared its telephone survey respondents with GCS respondents along dozens 

of different measures of opinions and attitudes. (Frederick, Tr. 1069); (CCX-874 at 

2).

232. Although PEW noticed differences depending on the precise question, “the median 

difference between 43 results obtained from Pew Research surveys and using Google 

Consumer Surveys was 3 percentage points,” and mean difference was six points. 

(CCX-874 at 2).

233. In general, the percentage who said they owned particular devices and engaged in 

various online activities were fairly similar in Pew Research surveys and the Google 

Consumer surveys. (CCX-874 at 6). 

234. “Views about the size and role of government were similar in a Pew Research survey 

and the Google survey.” (CCX-874 at 7).

235. “Reported frequency of voting also was little different in the Google Consumer 

Surveys and the Pew Research survey.” (CCX-874 at 7).

236. With respect to opinion about the health care legislation passed by Obama and 

Congress in 2010, the results of the two surveys were similar. (CCX-874 at 8). 

237. “[T]he percentage of people saying that [global] warming is occurring mostly because 

of human activity was similar in the two surveys.” (CCX-874 at 8). 

238. “Across a variety of foreign policy issues, results from the Pew Research surveys and 

those obtained using the Google Consumer Surveys method were quite comparable.” 

(CCX-874 at 8).

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239. ECM’s expert, Dr. Stewart, never questioned PEW’s findings. (Stewart, Tr. 2491-

2820); (RX-856; RX-843); (Stewart, Tr. 5-308). 

240. With respect to the 2012 presidential election in particular, Pew noted: “In a series of 

tests after each presidential debate, the Pew Research surveys and Google Consumer 

surveys produced similar reactions.” (CCX-874 at 8). 

241. Nate Silver studied GCS’s impressive performance in predicting the 2012 presidential 

election results. (Frederick, Tr. 1071-1075). 

242. In his well-known New York Times column, Silver compared the accuracy of twentythree polling entities that had conducted at least five polls in advance of the 2012 

election. (CCX-872 at 2).

243. GCS tied for second place overall, conducting twelve pre-election polls with an 

average error relative to the actual results of only 1.6%. (CCX-872 at 2). 

244. GCS finished ahead of better-known entities including CNN, Reuters, and Gallup. 

(CCX-872 at 2).

245. Mr. Silver wrote: “The final poll conducted by Google Consumer Surveys had Mr. 

Obama ahead in the national popular vote by 2.3 percentage points—very close to his 

actual margin, which was 2.6 percentage points. . . . Perhaps it won’t be long before 

Google, not Gallup, is the most trusted name in polling.” (CCX-872 at 3, 6).

246. Professor Frederick explained the importance of Google’s performance in the 2012 

election: “[T]he fact that Google Consumer Surveys is doing so well [compared] 

with all these other opinion polling firms in predicting the presidential election across 

twelve different tests [] suggests to me . . . that the population is both 

psychographically and demographically representative. Otherwise, I don’t think 

they’d be able to accurately predict who people are going to vote for.” (Frederick, Tr. 

1074-1075). 

247. ECM’s expert, Dr. Stewart, offered no testimony regarding Mr. Silver’s conclusions, 

or Professor Frederick’s evaluation of them. (Stewart, Tr. 2491-2820); (RX-856; RX843); (Stewart, Tr. 5-308). 

248. Google engaged two different survey research firms to administer identical 

questionnaires to internet panels intended to represent American adults. Google also 

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administered the same survey thirteen times through GCS. (CCX-872 at 5). 

249. The results of the three surveys were compared to established benchmarks related to 

media usage (established by a 200,000 respondent survey) and health data 

(established by Centers for Disease Control (“CDC”) surveys with response rates 

above 80%). (CCX-872 at 5). 

250. Significantly, the GCS surveys performed as well or better than the internet panel 

surveys, and—perhaps most important—the GCS surveys deviated from the 

established benchmarks by only approximately 4%. (CCX-872 at 5). 

251. Dr. Stewart’s report apparently references Google’s study, and dismisses it solely on 

the grounds that Google has an interest in promoting its product. (RX-856 at 17).

252. ECM’s expert, Dr. Stewart, did not testify regarding this study. See (Stewart, Tr. 

2491-2820); (RX-843); (Stewart, Tr. 5-308). 

253. Through direct communications with Google, Professor Frederick verified GCS’ bona 

fides himself. Specifically, Professor Frederick conferred telephonically with 

Google’s representatives twice to confirm the mechanics and methodology GCS 

employs. (Frederick, Tr. 1261); (CCX-865 at 3 (“Such interviews with data 

collectors are regularly conducted in my field to ascertain the reliability of datagathering techniques.”)).

254. Although relying on GCS is relatively new, relying on a third party to ask questions 

and gather data from a representative sample is not. As ECM’s expert opined, “it’s 

quite common to make an assumption that a research organization follows a particular 

protocol or procedure.” (Stewart, Tr. 2663); (Stewart, Tr. 2664) (agreeing that “[i]t is 

typical in survey research” to rely “on the belief that a survey research firm is 

operating as you would expect them to operate with respect to the gathering of data”).

255. Through his conversations with Google, Professor Frederick concluded that, “[b]ased 

on Internet protocol (IP) addresses and browsing history, GCS uses dynamic 

imputation algorithms to help ensure [the] demographic representativeness of [its] 

sample data.” (CCX-865 at 3).

256. Dr. Stewart never communicated with anyone associated with GCS. (RX-843 at 

162). 

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257. Dr. Stewart never testified that, as an expert in the survey research field, it was 

somehow inappropriate for Professor Frederick to rely on his communications with 

Google regarding GCS’ methodology. (See Stewart, Tr. 2491-2820); (RX-843); 

(Stewart, Tr. 5-308)). 

258. Because Google delivers advertising to users partly based on their demographic 

information, Google has high incentives to get that information reasonably correct. 

(Frederick, Tr. 1398). 

259. Professor Frederick opined that “[a]dvertisers value online advertising only to the 

extent that it works, which give Google strong incentives to accurately ascertain the 

demographic characteristics of respondents advertisers target.” (CCX-865 at 3).

260. GCS is highly representative both demographically and psychographically. 

(Frederick, Tr. 1410). 

261. APCO, Synovate, and Dr. Stewart’s studies each surveyed ostensibly representative 

samples in various ways. Accordingly, the conformance between those results and 

GCS further supports the conclusion that GCS respondents are representative. 

(Frederick, Tr. 1369). 

262. Dr. Stewart’s report repeatedly uses scare quotes when discussing Professor 

Frederick’s GCS research (referring to it as a “survey”). (RX-856 at 8, 13-14). 

263. Dr. Stewart testified about Professor Frederick’s article, The Limits of Attraction. 

(Stewart, Tr. 2681-2682). 

264. Dr. Stewart initially denigrated the portion of the article reporting GCS as a 

“footnote” involving a “partial replication” on GCS of data obtained through other 

sources; he later conceded that the article contained a table of GCS data, and that the 

article itself (containing GCS data) was published in a well-regarded peer-reviewed 

journal, THE JOURNAL OF MARKETING RESEARCH. (Stewart, Tr. 2682); 

(Stewart, Tr. 2818); (Stewart, Tr. 2681). 

265. Dr. Stewart also emphasized criticisms of the article (Stewart, Tr. 2681), but later 

conceded that “[n]one of those criticisms of th[e] article had anything to do with its 

use of GCS.” (Stewart, Tr. 2816). 

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266. Dr. Stewart also pronounced that no “serious scholar” would conclude that GCS is “in 

the legitimate market research business.” (Stewart, Tr. 2683-84). 

267. ECM also compiled blog posts criticizing GCS. Most of the blog posts are from other 

survey researchers (i.e., competitors), the overwhelming majority have nothing to do 

with whether or not GCS is reasonably representative, and nineteen were compiled by 

ECM’s counsel approximately one week before trial). (RX-823; RX-877-95); (see 

also RX-877 at 5 (evidence of collection by counsel and July 27, 2014 retrieval 

date)).

268. Dr. Stewart’s report referenced alleged instances in which GCS “has been far off the 

mark.” (RX-856 at 17). 

269. Dr. Stewart admitted at trial that his source for the claim that GCS “has been far of 

the mark” is a tweet (and, indeed, he acknowledged that his report failed to disclose 

that the source was a tweet). (Stewart, Tr. 2687). 

270. Dr. Stewart also admitted that he had never “done any type of systematic analysis” to 

determine GCS’ accuracy. (Stewart, Tr. 2685-2686). 

271. Consistent with basic survey research principles, precise demographic information 

about each individual survey respondent is unnecessary if the sample is 

representative. (Frederick, Tr. 1079-80; 1360-1363). 

272. Professor Frederick testified:

QUESTION: Speaking in general, to what extent, if any, is it necessary to know 

the demographic characteristics of individual respondents in order to be able to draw 

valid conclusions [] about a population as a whole? 

FREDERICK: No, that’s—it’s not necessary.

. . . . 

QUESTION: Does the absence of [demographic] information impair your ability 

to draw reasonably valid conclusions about the population as a whole? 

FREDERICK: No, it does not. 

QUESTION: [W]hy is that?

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FREDERICK: That’s the essence of random sampling, because we have no reason 

to believe that those characteristics differ between the sample and the population at 

large as long as the same has been randomly selected or something very close to that.

QUESTION: . . . . [T]o what extent, if at all, does it matter if you do not know 

anything else about an individual Google Consumer Survey respondent as long as you 

know that he or she was drawn from a pool that is reasonably representative of the 

population you are attempting to sample? 

FREDERICK: It makes no difference whatsoever. (Frederick, Tr. 1079-

80; 1360-1363). 

273. When possible, GCS infers five important demographic features (gender, 

approximate age, geographic region, urban density (whether the respondent resides in 

an urban, suburban, or rural area). With respect to age and gender, Google infers 

demographic information based on the respondent’s browsing history as recorded in a 

DoubleClick advertising cookie. (CCX-874 at 3; CCX-868 at 3). 

274. Google infers the respondent’s location based on the computer’s IP address, and then 

infers the respondent’s income and urban density “by mapping the location to census 

tracts and using the census data to infer income and urban density.” (CCX-868 at 3; 

see also CCX-874 at 3).

275. GCS then uses this information “to ensure each survey receives a representative 

sample.” (CCX-868 at 3).

276. In Professor Frederick’s data, when GCS lacked sufficient information about a 

particular respondent to draw an inference regarding a given demographic 

characteristic, GCS (and Professor Frederick) reported that characteristic as 

“unknown.” (See CCX-863 (data set)). 

277. “For approximately 30-40% of [GCS] users, demographic information is not 

available—either because their cookies are turned off but more often because the 

[GCS] algorithm cannot determine a trend from the websites visited as recorded in 

their DoubleClick advertising cookie that would suggest what gender or age they 

are.” (CCX-874 at 3).

278. Geographic information is potentially significant because—as Dr. Stewart 

conceded—“beliefs regarding the importance of purchasing environmentally-friendly 

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products might vary” between people “living in cities and people living in rural 

environments,” or between people living in different regions of the country. (Stewart, 

Tr. 2742). 

279. In contrast to Professor Frederick’s GCS survey, Dr. Stewart’s 400-respondent 

landline survey collected no data at all regarding income, geography, or urban 

density. (Stewart, Tr. 2739, 2742-2743, 2745). 

280. Put differently, each of those three demographic characteristics (income, geography, 

and urban density) is entirely unknown regarding 100% of Dr. Stewart’s respondents. 

(Stewart, Tr. 2739, 2742-2743, 2745). 

281. Dr. Stewart testified “that consumers’ views regarding biodegradation times don’t 

vary much based on gender[.]” (Stewart, Tr. 2738). 

282. Regarding gender, there was no evidence presented at trial that Dr. Stewart’s callers 

asked respondents to provide their gender when the callers were uncertain based on a 

particular respondent’s voice. (Stewart, Tr. 2735). 

283. Without an inquiry in such situations, the error rate is about 5%. (Stewart, Tr. 2735). 

284. Dr. Stewart also did nothing to verify that the gender “recorded by observation” over 

the phone was correct. (Stewart, Tr. 2735). 

285. Although Dr. Stewart conceded that “[s]ometimes people lie about their age,” he did 

nothing to verify that his landline respondents’ self-reported age was correct. 

(Stewart, Tr. 2739). 

286. Dr. Stewart testified: 

QUESTION: Overall then, for 100 percent of respondents in your survey, with 

respect to the five demographic characteristics we’ve been discussing, two of the 

demographic traits were assessed but without any secondary verification, and three 

are unknown, correct? 

STEWART: That’s correct.

QUESTION: It’s still possible for such a survey to produce valid results, isn’t it? 

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STEWART: Yes, it is. (Stewart, Tr. 2745). 

287. Respondents’ individual demographic traits are irrelevant as long as the overall pool 

is reasonably representative. (Frederick, Tr. 1079-1080; 1357-1363). 

288. ECM did not challenge the wording or structure of any specific question Professor 

Frederick asked. (See Stewart, Tr. 2491-2820); (RX-856; RX-843); (Stewart, Tr. 5-

308). 

289. Professor Frederick asked more than sixty different questions. (Frederick, Tr. 1060). 

290. Professor Frederick’s questions included twelve open-ended questions that asked 

respondents to estimate the time it would take for a plastic product labelled 

“biodegradable” to biodegrade. (CCX-860 at 30-33). 

291. The number of different questions is significant because it enabled Professor 

Frederick to test what effect, if any, the wording of particular questions has. 

(Frederick, Tr. 1061 (“[M]y research is on framing effects . . . and I was interested in 

whether those things mattered. Again, this is part of the concept of convergent 

validity. It’s also called robustness. If you ask the questions a bunch of different 

ways, which things matter, which things don’t matter, those kinds of things can be 

tested by asking [] different questions.”)). 

292. As Professor Frederick explained, “if it’s the case that you get the same result despite 

asking questions in different ways, that . . . increases your sense of construct 

validity.” (Frederick, Tr. 1061-1062). 

293. Professor Frederick found that substantial minorities (or, sometimes, majorities) of 

consumers estimated that plastic products labelled “biodegradable” would biodegrade 

in one year or less—no matter how the question was presented. (CCX-860 at 27-35). 

294. Some of Professor Frederick’s questions involved the “ECM Biodegradable logo,” 

some questions involved other “biodegradable” logos, and some involved only words. 

(CCX-860 at 27-35). 

295. Sometimes the questions referred to “plastic products,” sometimes to “plastic 

packages,” sometimes to a specific object referenced in words (“a plastic water 

bottle”), and sometimes to an image of a plastic object (a plastic bag, or a plastic 

container). (CCX-860 at 30-33). 

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296. Some questions asked “how long” the object would take to biodegrade, whereas some 

asked “how much time” it would take. (CCX-860 at 30-33). 

297. Some questions asked “how much time” it would take, whereas some questions asked 

“how much time do you think” it would take. (CCX-860 at 30-33). 

298. For nine of the twelve questions asking consumers to estimate biodegradation times 

for plastic materials labelled “biodegradable,” at least 30% of consumers estimated 

the product would biodegrade in one year or less—and in no case did fewer than 20% 

of consumers give such an estimate. (CCX-860 at 30-33). 

299. Depending on phrasing of the question, a majorities ranging from 53% to 68% of 

consumers would consider it misleading if a plastic product labelled biodegradable 

did not biodegrade within one year. (CCX-860 at 35). 

300. When asked: “A company should be allowed to label its plastic packaging material 

as ‘biodegradable’ if it biodegrades within what amount of time,” 68% responded 

with one year or less, and only 9% of consumers thought periods longer than five 

years gave numbers greater than five years. (CCX-860 at 35).

301. Hardly any consumers believe it is appropriate for a company to label a product 

“biodegradable” if it takes that long to biodegrade. Specifically, if the responses to 

Questions 4A-4E are aggregated, less than 5% of consumers believe companies 

should be allowed to label as “biodegradable” products that take longer than twentyfive years to biodegrade. (CCX-860 at 35). 

302. Additionally, consistent with the Commission’s Green Guides, at least a substantial 

minority of consumers believe that generic “products” (as opposed to plastic 

products) will biodegrade in one year or less. Again, Professor Frederick asked the 

relevant question numerous different ways, and “one year or less” responses ranged 

from 42% to 74%. (CCX-860 at 27-28). 

303. This range includes two questions (1I and 1J) that Professor Frederick intended to test 

the effect of the use of the word “years” in the question, which suggests a longer 

process. Notably, even when consumers were asked: “If a package is labelled 

‘biodegradable,’ how many years will it take to biodegrade,” 25% of consumers still 

estimated one year or less. (Frederick, Tr. 1143); (CCX-860 at 28). 

304. Professor Frederick also compared ECM’s prior qualifier (“nine months to five 

years”) with its new attempt to qualify its biodegradable claim (“some period greater 

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than a year”). Significantly, “nearly half, 40%-50%, of consumers construe the 

qualifier ‘some period greater than a year’ as implying faster biodegradation than the 

qualifier ‘nine months to five years.’” (Frederick, Tr. 1161); (CCX-860 at 16-18). 

305. There is a typo in Appendix A to Professor Frederick’s expert report. Specifically, 

the results to Question 14A, reproduced at CCX-860 at 45, should reflect 60% of 

consumers thought “nine months to five years” conveyed longer biodegradation 

times, and 40% of consumers thought it conveyed shorter biodegradation times. 

(Frederick, Tr. 1159-1160). 

306. Notably, Professor Frederick is an expert on the anchoring effect, which is the 

“assimilation of a judgment” toward “a concurrent numeric standard,” or toward “a 

prior numeric standard previously presented.” (Frederick, Tr. 1029-1032); (CCX-860 

at 3). 

307. Significantly, Professor Frederick attributed the failure of ECM’s new qualifier to 

produce meaningfully longer estimated biodegradation times in part due to the 

anchoring effect, because the representation presents consumers with “one year” as 

the starting point, and consumers may “infer that [one year] has some significance[.]” 

(Frederick, Tr. 1167). 

308. Thus, although the new “some period greater than a year” qualifier increases the 

number of estimates above five years, it also “move[s] some respondents to give 

lower estimates.” (Frederick, Tr. 1167); (see also CCX-860 at 18 (“The specified 

minimum value (‘one year’) likely functioned as a numeric referent towards which 

some respondents’ subsequent estimates assimilate.”)). 

309. Specifically, changing the language from “nine months to five years” to “some period 

greater than a year” “significantly increases the fraction [of consumers] who believe 

[the product] will biodegrade within two years (from 17% to 29%[)].” (CCX-860 at 

18); (see also Frederick, Tr. 1167 (“If you compare . . . people who gave estimates 

less than or equal to two years, that number increases from . . . 17 percent to 29 

percent, perhaps because the one year is functioning as an anchor of sorts.”)). 

310. Dr. Stewart did not challenge (or even address) Professor Frederick’s conclusion that 

ECM’s “some period greater than a year” language did not materially increase 

consumers’ estimated biodegradation times. (See Stewart, Tr. 5-308; 2491-2820); 

(RX-856; RX-843). 

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311. ECM did not dispute other facts that “biodegradable” implies. As Professor 

Frederick testified, his study, APCO, and Synovate establish that most consumers 

believe plastic products labelled “biodegradable” will biodegrade in landfills. 

(Frederick, Tr. 1172); (CCX-860 at 13 (citing APCO and Synovate, as well as GCS)). 

312. Additionally, across eight different GCS surveys with varied wording and question 

type, between 37% and 50% of consumers understood that a plastic product labelled 

“biodegradable” will biodegrade completely into elements found in nature. 

(Frederick, Tr. 1172); (CCX-860 at 16). 

313. Professor Frederick employed a “bright line” coding rule designed to avoid any 

“value judgments about which responses are ‘too inaccurate’ to count.” (CCX-865 at 

6). 

314. Professor Frederick’s bright-line rule was that “any response containing both a 

numeric specification and an accompanying temporal unit” was coded, and other 

responses were not. (CCX-865 at 6); (see also Frederick, Tr. 1128). 

315. As Professor Frederick explained, five types of responses were excluded: (1) 

numeric responses lacking a temporal unit (for instance, “1”); (2) responses lacking a 

specification of quality (for instance, “months”); (3) responses indicating 

unwillingness to answer without further clarification (“it depends”); (4) responses 

indicating an unwillingness to a aver a response about which they are uncertain (“I 

don’t know”); and (5) “bypass” or “protest” responses intended to circumvent the 

survey wall (e.g., “go away”). (CCX-865 at 6); (Frederick, Tr. 1122-1128). 

316. As Professor Frederick explained, he did not code these responses because there is no 

way to translate them into a specific estimate of biodegradation time. (CCX-865 at 6); 

(Frederick, Tr. 1122-1128). 

317. The omission of these responses would only affect the results if respondents who 

gave such responses hold different views concerning biodegradation that the rest of 

the population, but “there is no reason to believe that any of the people whose 

responses [Professor Frederick] did not code hold a view of biodegradation that 

differs from the rest of the population[.]” (CCX-865 at 6); (see also Frederick, Tr. 

1122-1128). 

318. Survey respondents with views as to the correct answer sometimes state “I don’t 

know” because they lack sufficient confidence in their view, or because they fear 

embarrassment if they give an incorrect response. (Stewart, Tr. 2666-2667). 

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319. Furthermore, Dr. Stewart conceded it was “generally true” that “there’s a literature on 

the ‘I don’t know’ response [in survey research], and that literature generally finds 

that you don’t change the distribution of responses substantially by forcing responses 

by preventing people from saying ‘I don’t know.’” (Stewart, Tr. 2669-2670). 

320. Similarly, Professor Frederick testified there was no reason to conclude “that as a 

group, people who give ‘I don’t know responses’ to questions asking for beliefs 

regarding biodegradation time have different beliefs than people who gave [specific 

estimates].” Accordingly, omitting “I don’t know” responses does not “affect the 

conclusions of the research.” (Frederick, Tr. 1125). 

321. To provide a second example, Professor Frederick compared the distribution of 

(uncodeable) numeric responses that did not have an accompanying unit (for instance, 

“1”) with the distribution of (coded) responses that had an accompanying unit (“for 

instance, “1 year”). (Frederick, Tr. 1127); (CCX-865 at 6). 

322. As Professor Frederick testified, the distribution of responses was “very similar . . . 

[t]herefore, I have every reason to believe that these people [who gave uncodable 

responses] have the same distribution of beliefs as the people who provided a unit.” 

(Frederick, Tr. 1127); (CCX-865 at 6). 

323. Because the people whose responses Professor Frederick excluded very likely have 

distribution of beliefs regarding biodegradation time than those who gave codeable 

responses, excluding them does not “affect[] the inferences drawn from the data.” 

(CCX-865 at 6). 

324. Out of approximately 20,000 responses Professor Frederick collected to open-ended 

questions, a very small fraction (less than one percent) gave insincere “protest” 

responses intended solely to bypass the GCS survey wall. Professor Frederick 

testified that excluding such responses would have no material effect because there is 

“no reason to believe that the people who [give protest responses] actually have 

different views about biodegradation times than the people who g[a]ve responses 

which are codeable.” (Frederick, Tr. 1123-24; 1136, 1138); (CCX-865 at 5). 

325. Dr. Stewart did not challenge this conclusion. (See Stewart, Tr. 5-308; 2491-2820); 

(RX-856; RX-843). 

326. Professor Frederick also testified that GCS takes steps to ensure that people who 

respond randomly do not receive future surveys by periodically asking questions with 

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obvious answers (for instance, how many states are there in the United States?), and 

removing persons who respond incorrectly from the pool who may receive future 

surveys. (Frederick, Tr. 1099-1100).

 

327. Indeed, there is no reason to think that the less than one percent of respondents who 

react to a GCS survey with a bypass response (random typing) or a protest response 

(a snide remark) are psychographically different from the population at large in any 

respect relevant here. If, for example, the GCS question asked for respondents’ views 

about paywalls limiting access to line content, then excluding bypass/protest 

respondents from the data might be problematic. In this context, however, there is no 

reason to think that bypass/protest responders, as a group, would give different 

biodegradation time estimates than people who give sincere responses. (Frederick, 

Tr. 1123-1124). 

328. In his report, Professor Stewart briefly alleged that a “disinterest bias” exists, wherein 

GCS respondents will allegedly give random answers to bypass the survey wall. 

(RX-856 at 14). 

329. Dr. Stewart’s report references only a blog post from a GCS competitor regarding 

alleged “disinterest bias.” (RX-856 at 14). 

330. Indeed, Professor Frederick testified that alleged “disinterest bias” has not been 

studied in the academic survey research literature, and his search for the term 

produced no results. (Frederick, Tr. 1092). 

 

331. Additionally, the fact that less than one percent of respondents gave protest responses 

provides additional evidence that the overwhelming majority of GCS respondents 

gave thoughtful answers. (Frederick, Tr. 1093 (“The vast majority of people gave 

answers which were very reasonable given the questions.”)). 

332. Furthermore, the fact that average response times for GCS respondents were 

generally above 20 seconds (meaning that the average respondent took 20 seconds 

before responding) provides additional “evidence that people are thinking about the 

question.” (Frederick, Tr. 1152). 

333. As Professor Frederick testified, “[i]t wouldn’t make any sense . . .for someone to see 

a question, to sit there and do nothing, and then key in a nonsense response [after] 22 

seconds[.]” (Frederick, Tr. 1152); (see also CCX-865 at 5). 

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334. ECM attempts to account for the response time by suggesting that respondents might 

have become distracted between when GCS presented the question stem and when 

they responded. (Frederick, Tr. 1331-1334). 

335. As Professor Frederick testified, “obviously [this] does happen sometimes,” but “I 

don’t think it’s common that people would be interrupted between reading the 

question stem and answering[.]” In short, atypical distractions might account for a 

few response times of twenty seconds or more, but not hundreds or thousands. 

(Frederick, Tr. 1342). 

336. In fact, as Professor Frederick testified, and Dr. Stewart conceded, a question in 

which the consumer gives a response in twenty seconds much better replicates the 

actual consumer experience when confronted with a “biodegradable” claim on a store 

shelf than a telephone interview taking ten minutes or more. (Frederick, Tr. 1091 

(“[I]f a question is embedded at the end of a ten-minute survey, that's not replicating . 

. . the decision experience of the consumer itself. A consumer in a store might just 

spend a few seconds deciding between products.”)); (CCX-865 at 5); (Stewart, Tr. 

2700 (admitting that his landline survey “doesn’t simulate the shopping experience)). 

337. ECM characterizes consumers’ short biodegradation time estimates (including days 

and weeks) as “absurd” and “ludicrous.” (Stewart, Tr. 2749-2755); (RX-856 at 15). 

338. ECM emphasizes extremely small estimates, for instance, “a nanosecond.” In reality, 

out of approximately 20,000 responses to open-ended questions, only two consumers 

responded with “a nanosecond.” (Frederick, Tr. 1377). 

339. During his cross-examination, ECM confirmed that Professor Frederick coded 

approximately 26 responses of seconds, minutes, or hours, but this represents only 

approximately .001% of the data collected. (Frederick, Tr. 1302-1305). 

340. These 26 responses might represent people who mistook “biodegradation” for 

dissolution, people who misunderstood the question as asking when the 

biodegradation process begins, or people who did not take the question seriously. 

Regardless, the number of these responses is too small to affect the data. (Stewart, 

Tr. 2757-2758); (RX-843 at 39). 

341. ECM fails to explain why making value judgments about consumers’ beliefs is 

appropriate (it is not). (CCX-865 at 6). 

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342. ECM fails to acknowledge that, like Professor Frederick, Dr. Stewart coded very 

short biodegradation time estimates and included them in his data. (Stewart, Tr. 

2755-2756); (CCX-865 at 6-7). 

343. ECM fails to note that Professor Frederick coded both extremely long responses as 

well as extremely short ones—again, he implemented a “bright line” rule intended to 

avoid value judgments. (Stewart, Tr. 2755-2756); (CCX-865 at 6-7). 

344. Neither GCS respondents (who provided data) nor GCS itself (who collected the data) 

knew who sponsored Professor Frederick’s study. (Stewart, Tr. 2745-2746); 

(Frederick, Tr. 1132). 

345. The coding of numeric responses generally does not have any significant subjective 

component. (Frederick, Tr. 1132-1133). 

346. Professor Frederick produced the entirety of his data (including both the original 

responses and how those responses were coded) to ECM. (Frederick, Tr. 1133-1134); 

(CCX-863). 

347. Although ECM criticized Professor Frederick for not using so-called “screening 

questions” to exclude people who reported not knowing what “biodegradation” was, 

the evidence at trial was clear that such questions are ineffective. Initially, the 

evidence established that, despite using screening questions in his survey, Dr. Stewart 

still included dozens of respondents who understood that “biodegradable” meant that 

the product was recyclable, that it would not degrade, that it would “self-destruct,” 

and even that it was digestible. (Stewart, Tr. 2764-2770). 

348. In addition, Dr. Stewart admitted that screening questions can remove people who do 

understand what “biodegradation” means, but who are not confident in their 

understanding, or who have decided that they no longer want to participate in the 

survey. (Stewart, Tr. 2761-2763). 

349. Furthermore, as Professor Frederick testified, the population of American consumers 

who might be misled by a false biodegradable claim includes the many consumers 

whose understanding of “biodegradation” is mistaken or incomplete, or consumers 

who believe “biodegradability” is a positive attribute even if they do not know 

precisely why. (Frederick, Tr. 1422-1424). 

350. Indeed, ECM’s own expert reluctantly concurred that a consumer might purchase a 

product “because he or she thinks biodegradation is a positive attribute even if his or 

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her understanding of the term is scientifically incorrect,” and such a consumer “can 

still be misled if the product doesn’t biodegrade has he or she understands the 

term[.]” (Stewart, Tr. 2760). 

 

351. ECM also criticized Professor Frederick for not screening out respondents who 

reported not purchasing anything made out of plastic within the past month, or who 

work in the plastics industry. Even assuming some minuscule number of the 29,000 

GCS respondents fall within these categories, the presence of a tiny number of these 

outliers would not affect the data. (Frederick, Tr. 1411 (“Q: To what extent is it 

possible that consumers who never purchase plastic products might have responded to 

your survey questions? A: I testified yesterday that it was possible. Q: And how 

likely do you consider that to be? A: Approximately never.”)). 

352. In 2014, ECM’s expert, Dr. Stewart, supervised a 400-participant landline survey. 

(Stewart, Tr. 2687); (RX-856 at 18, 23). 

353. Although Dr. Stewart never asked respondents to estimate how long it would take 

plastic products labeled “biodegradable” to biodegrade, he did collect data bearing 

upon this issue. (Stewart, Tr. 2629-2630). 

354. Dr. Stewart’s landline callers asked (without specifying a material or that the product 

was labeled “biodegradable”): “If something is biodegradable, how long do you 

think it would take for it to decompose or decay?” (Stewart, Tr. 2777); (RX-602 at 

16). 

355. Of the 400 respondents, a majority (206) gave codeable estimates, and of those 

respondents, 33% gave estimates of one year or less. (Stewart, Tr. 2790). 

356. As with all four surveys at issue, many respondents gave nonspecific responses such 

as “I don’t know,” “it depends,” or other responses not quantifiable as a specific 

biodegradation time estimate. (Stewart, Tr. 2790). 

357. Additionally, Dr. Stewart’s landline callers read ECM’s biodegradable in “some 

period greater than a year” disclaimer to respondents, and asked: “In your own 

words, what does this claim mean to you?” (RX-602 at 20). 

358. Although Dr. Stewart notably did not ask respondents to estimate biodegradation 

times, 150 respondents still gave estimates. Of those respondents—and 

notwithstanding ECM’s disclaimer—50% (75 respondents) gave estimates of a year 

or less. (Stewart, Tr. 2804). 

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359. Notably, Dr. Stewart did not personally check the coding of the 400 responses his 

landline callers reported. (Stewart, Tr. 2798). 

360. Stewart’s landline callers coded 95 responses as falling within the category 

“gone/decomposed/biodegrade in one year.” (Stewart, Tr. 2796); (RX-846 at 27). 

361. Complaint Counsel located 75 responses that, when properly coded, fell within that 

category, and Dr. Stewart confirmed that the 75 responses we identified fell within 

the category “gone/decomposed/biodegrade in one year.” (Stewart, Tr. 2800). 

362. Dr. Stewart was adamant that the 95 respondents was “an accurate count” of those 

who gave responses properly coded as “gone/decomposed/biodegrade in one year”, 

that any errors by his coders were “highly unlikely”, and that the Court can rely on 

the figure he reported (95 respondents). (Stewart, Tr. 2797-98). 

 

363. However, Complaint Counsel could not locate the additional twenty “year or less” 

responses that Dr. Stewart alleges exist. (See RX-844 (actual responses entered into 

evidence)). 

364. Accordingly, at trial, Complaint Counsel asked Dr. Stewart to assume that there were 

only 75 such responses. (Stewart, Tr. 2803). 

365. Before issuing the Green Guides, the Commission evaluated two existing studies 

concerning estimates of biodegradation time: APCO and Synovate. (RX-348 at 122). 

366. The 2006 APCO study involved an approximately 1000-respondent telephone survey 

that focused primarily on plastic products. (Frederick, Tr. 1037); (CCX-860 at 7). 

367. Sixty percent of respondents stated that packages labeled “biodegradable” should 

biodegrade within one year or less. (RX-597 at 2). 

368. In 2010, a company (EcoLogic) manufacturing a plastic additive similar to ECM’s 

product engaged a survey firm (Synovate) to conduct a 2000-respondent internet 

panel survey. (Frederick, Tr. 1046-1047). 

369. In the Ecologic/Synovate study, 25% stated that “less than one year” was a reasonable 

amount of time for a “biodegradable” package to decompose in a landfill. (RX-673 at 

4; CCX-860 at 11). 

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370. Professor Frederick opined that APCO and Synovate/Ecologic, taken together, 

provide reasonably reliable and valid evidence that at least a substantial minority of 

consumers believe plastic products labelled “biodegradable” will biodegrade in one 

year or less. (Frederick, Tr. 1041, 1059, 1180). 

371. In addition to referencing the concept of convergent validity generally, Professor 

Frederick testified that that APCO and Synovate have opposing biases. (Frederick, 

Tr. 1050, 1059). 

372. Specifically, APCO’s response options suggested shorter biodegradation times, 

whereas Synovate’s response options suggested longer ones. Indeed, with respect to 

the presence of opposing biases, Dr. Stewart gave essentially identical testimony. 

(Frederick, Tr. 1050 (noting that Synovate suffers from a “similar type of problem” as 

APCO, but “in the opposite direction); Frederick, Tr. 1419-1420 (same); Stewart, Tr. 

2515 (“So the same problem in terms of the use of the closed-ended format [in 

Synovate], same problem with respect to the bias and the options offered, but the 

nature of the bias would be in opposite direction, in an opposite direction from the 

APCO survey.”); Stewart, Tr. 2520 (“[T]he same problem exists in the Synovate 

survey, except the nature of the bias is in the opposite direction[.]”); Stewart, Tr. 2637 

(same)). 

373. As Professor Frederick testified, the presence of opposing biases helps confirm the 

existence of convergent validity with respect to the conclusion that at least a 

substantial minority of consumers believe plastic products labelled “biodegradable” 

will biodegrade in one year or less. (Frederick, Tr. 1420 (explaining that “having 

different designs, especially with opposing biases, is actually a good thing for 

convergent validity”)). 

374. Thus, based on convergent validity, and viewed together (but without the benefit of 

either Professor Frederick’s research or Professor Stewart’s research), APCO and 

Synovate are sufficiently reliable and probative to establish that at least a substantial 

minority of consumers believe plastic products labeled “biodegradable” will 

biodegrade in one year or less. (Frederick, Tr. 1041, 1059, 1180). 

375. When he was deposed, after he wrote his expert report in this matter, Dr. Stewart was 

unfamiliar was the product at issue in this case (ECM Masterbatch Pellets). (Stewart, 

Tr. 2629). 

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376. Dr. Stewart also never asked the central consumer perception question in this case: 

how much time will it take for plastic labeled “biodegradable” to biodegrade? 

(Stewart, Tr. 2629-2630). 

377. At trial, Dr. Stewart stated that he “was not interested in that specific issue.” 

(Stewart, Tr. 2630). 

378. He also denied (at trial) that this question was probative of the consumer perception 

in this case, although when asked in his deposition whether this question was 

“probative of the consumer perception question at issue in this case,” Dr. Stewart 

responded: “It certainly is.” (Stewart, Tr. 2630 and 2634); (RX-843 at 126). 

379. In Dr. Stewart’s survey, after respondents were on the phone for a considerable 

period answering questions about biodegradation generally, Dr. Stewart’s researchers 

asked a final series of questions. (Stewart Tr. 2698-2699). 

380. At the beginning of this series, respondents were asked: “Do you think that there are 

differences in the amount of time it takes for different products to biodegrade, 

decompose, or decay?” (Stewart, Tr. 2688); (RX-602 at 17). 

381. Unsurprisingly, almost everyone (98%) answered affirmatively. (Stewart, Tr. 2689) 

(RX-614 at 22). 

382. Next, those 98% who answered “yes” were asked to expound upon those differences: 

“What differences exist in the time for different types of products to biodegrade, 

decompose, or decay?” (Stewart, Tr. 2689); (RX-602 at 18). 

 

383. Immediately thereafter, respondents were asked to give their impressions of claims 

similar to ECM’s. (Stewart, Tr. 2689); (RX-602 at 19-21). 

384. They were not asked to estimate biodegradation times of products labelled “ECM 

biodegradable”; rather, they were merely asked: “In your own words, what does this 

claim mean to you?” (Stewart, Tr. 2796); (RX-602 at 19-21). 

385. Thus, many respondents did not give specific estimates of biodegradation times, 

many gave “it depends”-type answers, many expressed confusion, and many gave 

answers with no direct bearing on this case (for instance, that ECM seems like a great 

product, or that they would be interested in learning more about ECM). (RX-844 

(full data set)). 

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386. Although, at trial, Dr. Stewart denied that this question series “put in the mind of 

survey respondents that there are differences in the amount of time it takes for 

different types of products to biodegrade, decompose, or decay,” in his deposition, 

Dr. Stewart offered this more candid response: “Well, I hope we did put that in their 

minds because we’re asking them whether or not they think there are those 

differences, yes or no.” (Stewart, Tr. 2689-2690); (RX-843 at 74). 

387. Dr. Stewart reported results showing that whether a package or product is 

biodegradable is important to 71% of respondents. Dr. Stewart interpreted this fact as 

establishing “that while consumers have a conceptual understanding of what 

biodegradability is, it is not material to a sizeable minority of consumers.” Of course, 

it is material to a sizeable majority. (RX-856 at 24; RX-856 at 24). 

388. The correct number from Dr. Stewart’s data is 75%, not 71%. (Compare RX-856 at 

24 with RX-614 at 10). 

389. Dr. Stewart conducted an anachronistic landline survey, thereby excluding from the 

outset the 40% of the population that no longer has a landline. (Stewart, Tr. 2687); 

(Frederick, Tr. 1086); (CCX-865 at 4).

390. Dr. Stewart’s survey was neither psychographically nor demographically 

representative. From a psychographic perspective, relatively few consumers are 

willing to take a telephone survey lasting as long as twenty minutes without 

compensation; indeed, although Dr. Stewart’s callers eventually located 400 

participants, more than 4,000 hung up the phone when the callers introduced 

themselves (before they could even ask them whether the potential respondent was 

willing to participate in a survey). (Stewart, Tr. 2703-2704); (Stewart, Tr. 2698-

2699); (Frederick, Tr. 1090-91); (Frederick, Tr. 1391). 

391. Because people willing to participate in this sort of survey likely have different 

opinions and attitudes than the population at large, Professor Frederick testified that 

landline surveys are less psychographically representative than GCS and other 

methods. (Frederick, Tr. 1391, 1395-1396). 

392. Regarding demographics, Dr. Stewart admitted that “landline surveys tend to 

overrepresent older Americans[.]” (Stewart, Tr. 2725); (see also (Frederick, Tr. 

1086)). 

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393. In fact, a 58% of Dr. Stewart’s respondents were age 50 and older. (Stewart, Tr. 

2728). 

394. In reality, only 40% of the population consists of persons 15 and above (based on 

2010 census data ECM offered into evidence). Specifically, according to ECM’s 

data, the total population is approximately 308,746,000. Of those persons, 

approximately 61,277,000 are under age 15, leaving a population age 15 an older of 

247,519,000. Of that group, approximately 99,048,000 are age 50 and above. 

Accordingly, persons aged 50 and above represent only 40% of persons age 15 and 

above (99,048,000/247,048,000 = .40). (See RX-867).

395. Thus, Dr. Stewart oversampled older Americans, which—as he admitted—means 

undersampling Hispanics and other minorities, because older Americans are 

disproportionately white. (Stewart, Tr. 2728-2729). 

396. Intentionally Left Blank.

397. Intentionally Left Blank.

398. Intentionally Left Blank.

399. Intentionally Left Blank.

400. Intentionally Left Blank.

401. Intentionally Left Blank.

402. Intentionally Left Blank.

403. Intentionally Left Blank.

404. Intentionally Left Blank.

405. Intentionally Left Blank.

406. Dr. Stewart also excluded consumers below age 18, even though he conceded that 

someone as young junior high school-age “might walk into a convenience store and 

purchase a bottle of water,” and “that purchasing decision could be influenced by the 

word ‘biodegradable’ on some of the bottles, but not [] others.” (Stewart, Tr. 2720). 

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407. He testified only that he was “interested” in researching the opinions of consumers 

who had reached majority status. (Stewart, Tr. 2720). 

408. Intentionally Left Blank.

409. Omitting consumers under 18 is significant because—as Dr. Stewart also conceded—

consumers may have different opinions about the importance of purchasing 

environmentally-friendly products than older Americans, different levels of cognitive 

development, and different understandings of what “biodegradable” means. (Stewart, 

Tr. 2723). 

410. Dr. Stewart also conducted a ten-respondent pilot survey of ECM’s customers, but 

ECM elected not to conduct a full-scale study, and (on direct examination) he 

emphasized that no one should “make any statistical inferences based on only ten 

respondents.” (Stewart, Tr. 2587); (Stewart, Tr. 2588). 

411. In the manufacturer’s pilot study, ECM defined the pool of companies and the 

particular persons at those companies whom Dr. Stewart’s researchers could contact. 

(Stewart, Tr. 2637-2639). 

412. Notwithstanding the fact that Dr. Stewart’s researchers spoke only with ten people 

ECM nominated, three of the ten respondents gave either responses that were less 

than a year or referenced tests (ASTM D5511 and D6400) that are run for less than a 

year. (Stewart, Tr. 2644-2647); (RX-849 at 5). 

413. A fourth respondent said “1-3 years.” (RX-849 at 5). 

414. Dr. Tolaymat did not represent the interest of the EPA in this matter. (Tolaymat, Tr. 

121). 

415. Dr. Tolaymat testified that plastics made with the ECM additive will not biodegrade 

completely in five years or less under ordinary U.S. landfill conditions. (Tolaymat, 

Tr. 121, 122). 

416. Dr. Tolaymat testified that typical U.S. landfills are too dry, too cool, and have too 

little oxygen to enable ECM plastics to completely biodegrade within five years or 

less. (Tolaymat, Tr. 122-24). 

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417. Dr. Tolaymat testified that aerobic biodegradation occurs at a faster rate than 

anaerobic biodegradation. (Tolaymat, Tr. 130). 

418. Dr. Tolaymat testified that anaerobic decomposition results in the production of 

methane and carbon dioxide. (Tolaymat, Tr. 137). 

419. Dr. Tolaymat testified that most U.S. landfills are required by federal regulations to 

operate with oxygen content below 5%. (Tolaymat, Tr. 137-139) (describing effects

of EPA regulations on landfill oxygen levels)). 

420. Dr. Tolaymat testified that typical U.S. landfills operate at mesophilic temperatures. 

(Tolaymat, Tr. 139, 140). 

421. Dr. Tolaymat testified that typical U.S. municipal solid waste landfills are generally 

referred to as “dry tomb” or Subtitle D landfills. (Tolaymat, Tr. 142, 143). 

422. Dr. Tolaymat testified that “dry tomb” or Subtitle D landfills constitute approximately 

98% of all landfills in the U.S. (Tolaymat, Tr. 143). 

423. Dr. Tolaymat testified that moisture content in typical U.S. landfills is between 15-

30%. (Tolaymat, Tr. 145). 

424. Dr. Tolaymat testified that the vast majority of Subtitle D landfills have low moisture 

content. (Tolaymat, Tr. 147). 

425. Dr. Tolaymat testified that federal regulations prohibit bulk liquid introduction in 

landfills, which makes decomposition in landfills extremely slow. (Tolaymat, Tr. 

142-45). 

426. Dr. Tolaymat testified that leachate recirculation does not significantly increase a 

landfill’s moisture content. (Tolaymat, Tr. 147). 

427. Dr. Tolaymat testified that the rate of biodegradation in Subtitle D landfills is slower 

than the rate of biodegradation in bioreactor landfills. (Tolaymat, Tr. 148). 

428. Dr. Tolaymat testified that decay constant is the rate at which organic matter is 

converted to methane and carbon dioxide. (Tolaymat, Tr. 148). 

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429. Dr. Tolaymat testified that decay constants provide an estimate of how quickly 

materials decompose in an anaerobic environment. (Tolaymat, Tr. 148, 149). 

430. Dr. Tolaymat testified that half-lives provide an estimate of how quickly it takes for 

half of organic material to decompose. (Tolaymat, Tr. 149, 150). 

431. Dr. Tolaymat testified that plastic waste generally does not degrade. (Tolaymat, Tr. 

154, 155). 

432. Dr. Tolaymat testified that the most biodegradable material would not completely 

biodegrade in a landfill within 5 years even under optimum conditions for 

biodegradability. (Tolaymat, Tr. 153-56) (discussing half-lives and decay rates of 

various types of waste).

433. Dr. Tolaymat testified that the liner system, leachate collection system, gas collection 

system, covering layers, and closure and post-closure procedures for landfills 

collectively reduce the moisture content, oxygen content, and temperature of landfills. 

(Tolaymat, Tr. 156-62).

434. Dr. Tolaymat testified that approximately 2% of all U.S. landfills have been permitted 

by the EPA to operate as bioreactors. (Tolaymat, Tr. 164). 

435. Dr. Tolaymat testified that the EPA defines bioreactors as Subtitle D landfills that 

have 40% moisture content or higher and that exclude leachate recirculation and gas 

condensate. (Tolaymat, Tr.165).

436. Dr. Tolaymat testified that municipal solid waste would not completely biodegrade in 

a bioreactor landfill within 5 years, regardless of how the term bioreactor is defined. 

(Tolaymat, Tr. 168, 169). 

437. Dr. Tolaymat testified that ECM testing data are not competent and reliable evidence 

that ECM plastics will fully biodegrade in five years or less in most landfills. 

(Tolaymat, Tr. 169). 

438. Dr. Tolaymat testified that the Biochemical Methane Potential (“BMP”) test can 

provide competent and reliable evidence of biodegradation in landfills. (Tolaymat, 

Tr. 171). 

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439. Dr. Tolaymat testified that weight loss is not a good or accurate measurement of 

biodegradation. (Tolaymat, Tr. 172, 173). 

440. Dr. Tolaymat testified that the Environ study relied on by ECM contains at least five 

flaws that individually make the study not competent and reliable evidence in support 

of ECM’s claims. (Tolaymat, Tr. 183-7) (explaining that the study has flawed 

methodology and does not replicate typical landfill conditions). 

441. Dr. Tolaymat testified that the McClaren/Hart study relied on by ECM contains at 

least five flaws that individually make the study not competent and reliable evidence 

in support of ECM’s claims. (Tolaymat, Tr. 187-96) (explaining that the study has 

flawed methodology and does not replicate typical landfill conditions). 

442. Dr. Tolaymat testified that the OWS Composting study relied on by ECM contains at 

least two flaws that individually make the study not competent and reliable evidence 

in support of ECM’s claims. (Tolaymat, Tr. 198-202) (explaining that the study has 

flawed methodology and does not replicate typical landfill conditions). 

443. Dr. Tolaymat testified that the ASTM D5511 tests relied on by ECM contains are not 

competent and reliable evidence in support of ECM’s claims. (Tolaymat, Tr. 202-9) 

(explaining that the tests have flawed methodology and do not replicate typical 

landfill conditions). 

444. Dr. Tolaymat testified that the Ecologica report relied on by ECM contains is not 

competent and reliable evidence in support of ECM’s claims. (Tolaymat, Tr. 209-11) 

(explaining that the study has implausible data and insufficient information on 

methodology). 

445. Dr. Tolaymat testified that the tests relied on by ECM identified in Appendix A of his 

expert report are not competent and reliable evidence in support of ECM’s claims. 

(Tolaymat, Tr. 211-12) (explaining that the tests have flawed methodology and 

generally do not replicate typical landfill conditions).

446. Dr. Tolaymat testified that lysimeter tests can provide competent and reliable 

evidence of biodegradation in landfills. (Tolaymat, Tr. 221, 354, 355). 

447. Dr. Tolaymat testified that it is inappropriate for a scientist to deviate from the D5511 

protocol and then claim to have followed the protocol. (Tolaymat, Tr. 250-54). 

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448. At least a substantial number of consumers extrapolate rate and extent information 

concerning biodegradation times. (CCX-860 at 18-19). 

449. The evidence shows that at least 52 biodegradation studies have been conducted a 

variety of plastics containing ECM Additive. (CCX-153; 154; 157; 160; 161; 162; 

164; 169; 173; 582; 590; 595; 669; 672; 741; 742; 743; 929; 946; 947; 952; 954; 970; 

1071; 1097) (RX-248; 261; 262; 264; 265; 269; 270; 271; 273; 274; 275; 276; 278; 

352; 371; 394; 395; 398; 401; 402; 403; 406; 835; 836; 838; 861; 862).

450. Of these 52 biodegradation studies of ECM Plastic, only 5 were conducted at 37oC. 

(CCX-164; 590; 946; 947; 952).

451. Fourteen (14) tests were “qualitative tests” such as SEM, GPC, weathering, and 

toxicity tests. (CCX-153; 161; 162; 169; 173; 582; 954) (RX-264; 269; 270; 271; 274; 

275; 278; 406; 835; 861).

452. The SEM studies were not conducted by ECM, and there is no information in the 

record regarding who prepared the samples, how, with what load rate, duration of the 

test prior to examination, or any other details that enable a scientist to evaluate the 

information. (RX-270; 271; 278).

453. The studies showing no biodegradation were conducted by independent or reputable 

labs, were well-documented, and included other necessary information (e.g., 

statistical information) necessary to interpret the results. (McCarthy, Tr. 465-470) 

(CCX-164 (Ohio State University); CCX-174-CCX-176 (Stevens Ecology); CCX173 (Advance Materials Center); CCX-156; CCX-157; CCX-163; CCX-169-CCX171 (O.W.S.)).

454. None of the biodegradation studies supports ECM’s claims, and in fact disprove 

them. (CCX-891 ¶¶ 68-72; CCX-891 ¶¶ 75-88); (McCarthy, Tr. 453-455). 

455. Drs. McCarthy, Michel, Sahu, and Barlaz concur that 14C radiolabeling would provide 

strong, and perhaps definitive, evidence that the plastic, and not just the additive, is 

biodegrading. (CCX-891 ¶¶ 59-60; CCX-895 at 12, 15; RX-855 at 47; RX-853 at 9). 

456. ECM’s consumer perception expert, Dr. David Stewart, was unaware of any reason 

why a manufacturer would purchase the additive other than to make its products 

biodegradable, and his own consumer survey found that 71% of respondents believe 

that whether a product is biodegradable is important. (Stewart, Tr. 2643); (RX-856 at 

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27). 

457. Yale Marketing Professor Shane Frederick concurred that biodegradable claims 

“affect consumer decisions.” (CCX-865 at 15). 

458. Sinclair testified that ECM used the “nine months to five years” claim only to 

distinguish its product from faster-degrading compostable material. However, 

although Mr. Sinclair offered this dubious story when deposed. (CCX-818 at 77-79).

459. Although there are a few instances in which a customer suggested that it did not 

consider biodegradation time, the overwhelming majority of the evidence supports 

the opposite. For example, in a candid moment, ECM CEO Robert Sinclair admitted 

to customer Westchem Group: “Lots of people get hung up on how long.” (CCX423 at 9; CCX-282 at 2 (asking various questions about “degradable timing,” 

including whether “adding more [additive]” would accelerate the “degradable 

effect”); CCX-281 at 2 (requesting test results demonstrating the “progress of 

decomposition during a certain time span (a couple years)”); CCX-279 at 3 

(expressing concern about “the ability to claim without exception the speeded up 

breakdown”); CCX-280 at 3 (“We do have some nagging concerns that we need to 

resolve. The first question is ‘how long does it take to degrade.’”); CCX-300 at 1 

(“Does ECM test, or recommend testing, the end-users’ products to ensure that they 

biodegrade in less than 5 years?”); CCX-269 at 1 (“What determines 9 months vs 5 

years as it is such a variance?”); CCX-400 at 4 (asking ECM precisely how much 

additive it needed to use in its products use “to meet your stated degradation 

timeframe of 9 months to 5 years”)). 

460. Other ECM customers demonstrated the importance the timeframe had to them by 

reiterating it to their prospective customers. (CCX-811 at 22 (agreeing that 

“[b]ecause the prospective customers were interested in purchasing biodegradable 

plastic, IPB thought that the fact that . . . plastic products made with ECM additives 

would fully biodegrade in nine months to five years would be important to them”); 

CCX-33 (EarthAware Films; repeating “nine months to five years” in marketing 

literature); CCX-34 (EarthAware Films; repeating “nine months to five years” in 

memorandum to its distributors); CCX-37 (BioPVC, repeating “nine months to five 

years” on website); CCX-53 (Gilman Brothers; stating product would degrade in one 

to five years in marketing material); CCX-57 (Kappus Plastics; marketing materials 

stated in bold that its product “will break down in approximately 9 months to 5 

years”) (emphasis in original); CCX-102 (BioMugs; “This BioMug is made of a 

unique plastic that renders it biodegradable in 1-5 years.”); CCX-105 (Plascon Films; 

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repeating “nine months to five years” in advertisement)).

461. After informing potential customers that its ECM Plastic allegedly would degrade in 

“9 months to 5 years,” one customer’s marketing materials exclaimed: “We think 

you’ll agree that this is an environmental bargain. . . especially when compared to the 

unknown breakdown time of other modern plastic materials!” (CCX-38 at 1 (ellipses 

in original)).

462. Down To Earth asked ECM about using language that included “nine months to five 

years” on its grocery bags. ECM responded with general approval – not 

befuddlement or confusion as to why anyone would want to put that claim on 

packaging for end-use consumers. (CCX-307; see also CCX-1095).

463. Down To Earth’s supplier, Island Plastic Bags (“IPB”), manufactured ECM Plastic 

bags reflecting the “nine months to five years” claim for “50 to 100” different 

customers. (CCX-811 (Hong, Tr. 57)).

464. In total, IPB alone manufactured “about 10 million” such bags. (CCX-811 (Hong, 

Tr. 99)). 

465. The claim “nine months to five years” helps ensure that consumers believe the 

“biodegradable” claim. Indeed, as IPB explained, its bags contain the “nine months 

to five years” language because “we want people [consumers] to know” how the 

product biodegrades, “so that they feel like this is an actual technology . . . it’s for 

real.” Put differently, IPB wanted consumers to have details regarding the 

biodegradation process, including the timeframe, “so that they would understand that 

the bags would . . . work as advertised[.] (CCX-811 (Hong, Tr. 54-55)). 

466. Packaging manufacturer FP International testified that it conveyed to its potential 

customers that its “CELL-O air cushions will decompose completely within 9 to 60 

months in the presence of microorganisms whether they are sent to a landfill or end 

up as litter in the soil” because “[i]t was important to convey a message of 

biodegradability.” (CCX-810 (Blood, Tr. 24-25)). 

467. The fact that ECM Plastic biodegrades quickly was so important that ECM required 

its customers to sign a so-called “Certificate of Minimum Loading” in which the 

customer acknowledges that “ECM’s reputation can be materially and, perhaps, 

irreparably damaged when products claiming to use ECM MasterBatch Pellets fail to 

biodegrade within a reasonable time. (Sinclair, Tr. 765); (CCX-832). 

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468. ECM further required that its customers certify: “we are fully aware [of] the risk that 

a [] plastic product will not fully biodegrade within a reasonable period of time if it 

contains less than one percent” of ECM’s Additive. (CCX-832) (emphasis added). 

469. Although ECM generally did not communicate with end-use consumers, one 

consumer who received a “biodegradable shopping bag” tracked down ECM and 

asked: “[I]n a landfill situation, would the bag be 100% broken down in XX years, or 

50% within XX months.” Mr. Sinclair responded: “The timeframe for 

biodegradation is generally-speaking 9 months to five years[.]” (CCX-326).

470. This anaerobic sludge from wastewater (sewage) treatment plants is what many of the 

labs used to conduct this test. (CCX-805 (Eden, Dep. at 69); see also CCX-669 at 1 

(Northeast Labs report indicating test inoculum sourced from Mattabasset Waste 

Treatment Facility)). 

471. Dr. Barlaz concedes that only about 10% of all landfills are bioreactors. (RX-853 at 

5). 

472. Dr. Stewart admitted that “information conveyed to respondents earlier in a survey 

can affect their answers to later questions[.]” (Stewart, Tr. 2689). 

473. Dr. Stewart also increased consumer confusion by asking end-use consumers to 

interpret “biodegradable” claims that included technical language such as “one 

percent load” and “plastic resins.” (RX-602); (Stewart, Tr. 2775-76). 

474. He agreed that most consumers would not know what these terms meant, and that 

such claims never reached end use consumers. (Stewart, Tr. 2775-76). 

475. Mr. Sinclair maintains that the Green Guides were revised as a result of influence 

from the “corn lobby.” (Sinclair, Tr. 1702). 

476. None of the samples in Eden Lab’s tests of plastics containing 1% ECM additives 

fully degraded. (Poth, Tr. 1490-1491 (stating that the witness had concerns about 

turning over Eden’s ECM testing, and that the samples in the tests located had not 

totally degraded)). 

477. Dr. Stewart also did not ask consumers any relevant variant, such as how much time 

would it take for plastic labeled “ECM biodegradable” to biodegrade? (See RX-847). 

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II. Proposed Conclusions of Law 

A. Burden of Proof

1. The parties’ burdens of proof are governed by Federal Trade Commission (“FTC”) 

Rule 3.43(a), Section 556(d) of the Administrative Procedure Act (“APA”), and case 

law. FTC Rules of Practice, Interim rules with request for comments, 66 Fed. Reg. 

17,622, 17,626 (Apr. 3, 2001). Pursuant to Commission Rule 3.43(a), “[c]ounsel 

representing the C ommission ... shall have the burden of proof, but the proponent of 

any factual proposition shall be required to sustain the burden of proof with respect 

thereto.” 16 C.F.R. § 3.43(a). Under the APA, “[e]xcept as otherwise provided by 

statute, the proponent of a rule or order has the burden of proof.” 5 U.S.C. § 556(d). 

2. “It is well established that the preponderance of the evidence standard governs FTC 

enforcement actions.” Daniel Chapter One, Docket No. 9329, 2009 FTC LEXIS 157, 

at *134-35 (Aug. 5, 2009) (initial decision) (citing Telebrands Corp., 140 F.T.C. 278, 

426 (2004) (initial decision), aff’d., 140 F.T.C. 278 (2005), aff’d., 457 F.3d 354 (4th 

Cir. 2006); Automotive Breakthrough Sciences, Inc., 126 F.T.C. 229, 306 n.45 

(1998)) (other citations omitted), aff’d, (FTC Dec. 24, 2009), aff’d., 405 F. App’x. 

505 (D.C. Cir. Dec. 10, 2010), cert. denied, 131 S. Ct. 2917 (May 23, 2011). 

B. Jurisdiction

3. The acts and practices charged in the Complaint in this matter took place in or 

affecting commerce within the meaning of the Federal Trade Commission Act, as 

amended. 15 U.S.C. § 41 et seq. Nationwide advertising, marketing, or sales activity 

of the sort that ECM engaged in constitutes “commerce” under the FTC Act. See, 

e.g., P.F. Collier & Son Corp. v. FTC, 427 F.2d 261, 272 (6th Cir. 1970); Ford Motor 

Co. v. FTC, 120 F.2d 175, 183 (6th Cir. 1941) (noting that commerce also includes 

the actions, communications, and other acts or practices that are incident to those 

activities).

4. The Commission has jurisdiction over persons, partnerships, and corporations. 15 

U.S.C. § 45(a)(2). A “corporation” is defined in Section 4 of the FTC Act as “any 

company . . . which is organized to carry on business for its own profit or that of its 

members[.]” 15 U.S.C. § 44. Therefore, the Commission has jurisdiction over ECM. 

5. The Complaint charges ECM with violating Section 5 of the FTC Act. Section 5(a) 

provides that “unfair or deceptive acts or practices in or affecting commerce are 

hereby declared unlawful.” 15 U.S.C. § 45(a)(1). 

6. ECM’s challenged forms of marketing constitute alleged deceptive acts or practices 

within the scope of Section 5 of the FTC Act, 15 U.S.C. § 45. 

C. ECM Made Deceptive Advertising Claims.

7. An advertisement is deceptive if it contains a representation or omission of fact that is 

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likely to mislead a consumer acting reasonably under the circumstances, and that 

representation or omission is material to a consumer’s purchasing decision. In re 

POM Wonderful LLC, No. 9344, 2013 FTC LEXIS 6 at *17-18 (FTC Jan. 10, 2013) 

(citing FTC Policy Statement on Deception, 103 F.T.C. 174, 175 (1984) (appended to 

Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)) (“Deception Statement”)).

8. To evaluate whether an advertisement is deceptive, the Commission applies a threepart inquiry as to: “(1) what claims are conveyed in the advertisement; (2) are those 

claims false or misleading; and (3) are those claims material to prospective 

consumers.” Kraft, Inc. v. FTC, 970 F.2d 311, 314 (7th Cir. 1992). 

9. ECM violated Section 5 of the FTC Act because a preponderance of evidence shows: 

(1) respondent disseminated advertisements conveying the claims alleged in the 

complaint; (2) the claims were false or misleading; and (3) the claims are material to 

consumers. 

ECM Disseminated Advertisements Conveying The Claims Alleged In The Complaint. 

10. ECM’s customers received the claims through ECM’s website and myriad promotion 

materials, e.g., brochure, flyers, technical data sheets, technology summaries, 

Certificate, testing, and presentations. FOF ¶¶ 46, 63, 65-66. 

11. End-use consumers received these claims both directly through ECM’s website and 

through the means and instrumentalities ECM provided to its customers. FOF ¶¶ 

107-108, 24-25. 

12. Advertising claims may be express or implied. “Express claims directly represent the 

fact at issue while implied claims do so in an oblique or indirect way.” Kraft, 970 

F.2d at 318 (citing Thompson Medical, 104 F.T.C. 648,788 (1984)). 

13. The ALJ has the authority to rule as to the conveyed meaning of advertisements and 

promotional materials based on a facial analysis of these advertisements or 

promotional materials. Automotive Breakthrough Sciences, Inc., Docket Nos. 9275-

77, 1996 FTC LEXIS 252, at *44, (partial summary decision May 22, 1996) (citing 

Kroger Co., 98 F.T.C. 726, 729 n.11 (1981); Ford Motor Co., 87 F.T.C. 756, 794-97 

(1976)). 

14. “The courts and the FTC have recognized consistently that implied claims fall along a 

continuum, from those which are so conspicuous as to be virtually synonymous with 

express claims, to those which are barely discernible.” FTC v. Febre, No. 94 C 3625, 

1996 U.S. Dist. LEXIS 9487, at *14 (N.D. Ill. July 3, 1996) (citing Kraft, Inc., v. 

FTC, 970 F.2d at 319) (magistrate judge’s recommendation), adopted by 1996 U.S. 

Dist. LEXIS 14297 (N.D. Ill. Sept. 25, 1996), aff’d, 128 F.3d 530 (7th Cir. 1997); see 

also FTC v. Bronson Partners, LLC, 564 F. Supp. 2d 119, 127-28 (D. Conn. 2008) 

(an advertisement’s statements were “so clear, repetitive, and unambiguous that they 

constitute[d] the functional equivalent of express claims”), aff’d, 654 F.3d 359 (2d 

Cir. 2011). 

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15. “If the advertisement explicitly states or clearly and conspicuously implies a claim, 

the court need not look to extrinsic evidence to ascertain whether the advertisement 

made the claim.” FTC v Nat’l Urological Group, Inc., 645 F. Supp. 2d at 1189; see 

also FTC v. Colgate-Palmolive Co., 380 U.S. at 391-92 (stating that the FTC is not 

required to conduct consumer surveys before determining that a commercial has a 

tendency to mislead); Kraft, Inc. v. FTC, 970 F.2d at 320 (“[W]hen confronted with 

claims that are implied, yet conspicuous, extrinsic evidence is unnecessary because 

common sense and administrative experience provide the Commission with adequate 

tools to make its findings. [citations omitted]. The implied claims Kraft made are 

reasonably clear from the face of the advertisements, and hence the Commission was 

not required to utilize consumer surveys in reaching its decision.”). 

16. In considering the net impression of an advertisement, the Commission does “not 

require that all consumers reading or viewing it be sophisticated experts in 

interpreting the nuances of the English language.” Thompson Med. Co., 104 F.T.C. at 

792 (“We look at how such individuals actually interpret advertisements in a real-life 

situation, not at how they would if they had sufficient time and incentives attentively 

to review the ads so as to come up with the most semantically correct interpretation of 

them.”).

17. Commission law recognizes that advertisements may be susceptible to more than one 

reasonable interpretation. Kraft, Inc., 114 F.T.C. at 120-21 n.8; Thompson Med. Co., 

104 F.T.C. at 789 n.7. “Statements susceptible of both a misleading and a truthful 

interpretation will be construed against the advertiser.” FTC v. Bronson Partners, 

LLC, 564 F. Supp. 2d at 127 n.6 (quoting Country Tweeds, Inc. v. FTC, 326 F.2d 144, 

148 (2d Cir. 1964)). 

18. ECM repeatedly made four express claims: (1) ECM Plastics will biodegrade 

completely; (2) in nine months to five years; (3) in a landfill; and (4) scientific testing 

proves these claims. (SOF ¶¶18, 26-29; 31; 32; 33; 44-48; 50). 

19. When claims are express, one can “infer that reasonable consumers interpret them to 

mean what they say.” FTC v. USA Beverages, Inc., No. 05-61682-CIV, 2005 U.S. 

Dist. LEXIS 39075, at *16-17 (S.D. Fla. Dec. 5, 2005); accord FTC v. Pantron I 

Corp., 33 F.3d 1088, 1096 n. 21 (9th Cir. 1994). These express claims are clear on 

their face. Accordingly, no further analysis is necessary to determine that ECM made 

these claims and that its customers and consumers reasonably understood them to 

mean what they said. Pantron I at 1088. 

20. While under investigation by the FTC, ECM changed its primary advertising claim to 

“biodegradable in some time greater than a year.” (SOF ¶38). ECM also continued to 

prominently claim that ECM Plastic was “biodegradable” both on its website and in 

its brochure. (SOF ¶¶ 39-43). This advertising made three implied claims: (1) ECM 

Plastics will completely biodegrade; (2) after customary disposal (i.e., in a landfill); 

(3) in a period close to one year, or at least within 5 years. 

21. “Extrinsic evidence is unnecessary to establish the impression that consumers would 

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take away from an ad if the claims are reasonably clear from the face of the 

advertisement.” In re POM Wonderful LLC, 2013 FTC LEXIS 6 (F.T.C. Jan. 10, 

2013). 

22. When the possibility of deception is as self-evident as it is in this case, we need not 

require the State to 'conduct a survey of the . . . public before it [may] determine that 

the [advertisement] had a tendency to mislead.” Zauderer v. Office of Disciplinary 

Counsel, 471 U.S. 626, 652-53 (1985). 

23. “[T]he Commission may rely on its own reasoned analysis to determine what claims, 

including implied ones, are conveyed in a challenged advertisement, so long as those 

claims are reasonably clear from the face of the advertisement.” Kraft, Inc. v. FTC, 

970 F.2d 311, 319 (7th Cir. 1992); see also POM Wonderful, 2013 FTC LEXIS *44 

(“In this case, extrinsic evidence is not required because the establishment claims are 

in fact apparent from the overall, common-sense, net impression of the words and 

images of the advertisements themselves.”). 

24. If a substantial number of consumers interpret an advertisement as conveying an 

implied claim, then the requirement that the advertisement convey the claim is 

satisfied. See, e.g., Benrus Watch Co., Inc. v. FTC, 352 F.2d 313, 319-20 (8th Cir. 

1965) (“substantial percentage”); Raymond Lee Org., Inc., 92 F.T.C. 489, 649 (1978) 

(“substantial numbers”), aff'd, 679 F.2d 905 (D.C Cir. 1980); In the Matter of The 

Kroger Co., 98 F.T.C. 639, 728 (1981) (“some reasonably significant number”), 

modified on other grounds, 100 F.T.C. 573 (1982); Travel King, Inc., 86 F.T.C. 715, 

759 (1975) (“substantial numbers”); Bristol-Myers Co., 85 F.T.C. 988, 744 (1975) 

(“substantial numbers”); Statement of Basis and Purpose for the Funeral Industry 

Practices Rule, 47 Fed. Reg. 42.260, 42,274 (1982) (“substantial segment”); 

Statement of Basis and Purpose for the Cigarette Rule, 29 Fed. Reg. 8325, 8360 

(1964) (“substantial segment”). 

25. Although the Commission has never determined the minimum number of consumers 

necessary to constitute a “substantial number,” Courts and the Commission have 

found repeatedly that percentages ranging from 10% to 22% are sufficient. See, e.g., 

In the Matter of Telebrands Corp., 140 F.T.C. 278, 325 (10.5% is substantial); 

Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246, 249 (6th Cir. 1973) (“We find it 

hard to overturn the deception findings of the Commission if the ad thus misled 15%

(or 10%) of the buying public.”) (emphasis added); In the Matter of Am. Home 

Prods., 98 F.T.C. 136, 394 (1981) (finding, based in part on a study showing that 

22% of respondents identified “tension/nervous” tension” as a symptom relieved by 

Anacin, that Anacin’s advertising “convey[ed] a strong message that Anacin relieves 

anxiety, stress and other mood problems entirely apart from its function as a pain 

reliever”); In the Matter of Benrus Watch Co., 64 F.T.C. 1018, 1045 (1964) 

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(“Moreover, even if the study does show 86% nondeception as assumed by the 

examiner, which it does not, this still leaves 14 percent of the prospective purchasers 

who may be deceived, and, of course, these are entitled to protection.”) (citation 

omitted) (emphasis added), aff’d, Benrus Watch Co. v. FTC, 352 F.2d 313, 319-20 

(8th Cir. 1965) (“[W]e think that the Examiner and the Commission were justified in 

concluding that list prices still indicate actual regular retail prices to a substantial 

percentage of the watch buying public, a percentage that is entitled to protection from 

deceptive preticketing.”); see also In the Matter of Bristol-Myers Co., 85 F.T.C. 688, 

745 (1975) (finding 2-4% “patently insubstantial”). 

26. Although not using the technical term “convergent validity,” both the Commission 

and its ALJs have recognized that the convergence of results from different consumer 

perception studies confirms that they are “reasonably reliable and probative.” See In 

the Matter of Bristol-Myers Co., 85 F.T.C. 688, 744 n.2 (1975) (noting the fact that 

different “surveys are from independent sources and tend to confirm one another” is 

relevant to whether surveys are reasonably reliable and valid); In the Matter of 

Thompson Med. Co., 104 F.T.C. 648, 836 n.82 (“The consistency of this finding 

across both studies should have been a warning signal to Thompson that potential 

consumers might be confused about the ingredients of Aspercreme.”); In the Matter 

of Am. Home Prods., 98 F.T.C. 136, 252 (noting that “[t]he fact that these studies 

generated consistent results over a relatively short period of time (three to four years) 

enhances their reliability”) (ALJ op.).

27. Courts have also recognized “convergent validity” in other contexts. See, e.g., United 

States v. Montgomery, No. 2:11–cr–20044–JPM–1, 2014 WL 1516147, 53 (W.D. Jan. 

28, 2014) (“the Court is guided by the principle of ‘convergent validity’” when 

evaluating testing for intellectual disability); K.S. ex rel. P.S. v. Fremont Unified Sch. 

Dist., 679 F.Supp.2d 1046, 1060 (N.D. Cal. 2009) (rejecting argument that ALJ erred 

by relying on testimony of an expert who employed a “convergent validity” 

approach); cf. Grigsby v. Mabry, 758 F.2d 226, 237 (8th Cir. 1985) (“The consistency 

over a wide range of survey methods and respondents is impressive.”). 

28. A factfinder can draw valid conclusions from several studies even when the 

individual “studies could not, standing alone, serve as a basis for any conclusion.” 

Am. Home Prods., 98 F.T.C. at 253. 

29. “[N]o survey is perfect.” Selchow & Righter Co. v. Decipher, Inc., 598 F. Supp. 

1489, 1502 (E.D. Va. 1984). 

30. Survey evidence need not be perfect, as long as it is “reasonably reliable and 

probative.” See, e.g., In re POM Wonderful LLC, 2013 FTC LEXIS 6, 49 (Jan. 10, 

2013) (“The Commission does not require methodological perfection before it will 

rely on a copy test or other type of consumer survey, but looks to whether such 

evidence is reasonably reliable and probative.”) (citations omitted); In re Telebrands 

Corp., 140 F.T.C. 278, 324 (2005) (“[C]opy tests do not have to be flawless to be 

reasonably reliable and probative.”) (citation omitted); In the Matter of Novartis 

Corp., 127 F.T.C. 580, 699 n.24 (“While a given study may be flawed in some 

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respects, it still can be probative, and any deficiencies simply will affect the weight 

given to the evidence.”) (citation omitted); In the Matter of Stouffer Foods Corp., 118 

F.T.C. 746, 807 (1994) (“Perfection is not the prevailing standard for determining 

whether a copy test may be given any weight. The appropriate standard is whether 

the evidence is reliable and probative.”). 

31. Professor Frederick defined a valid survey as “one which produces accurate results,” 

which is consistent with the Commission’s standard, which looks to whether a survey 

is reasonably reliable and probative. 

32. Although federal courts sometimes use The Manual for Complex Litigation to guide 

their analysis of survey evidence, that manual merely points to various indicia of a 

probative survey (for instance, whether the questions are clear, and whether the data 

gathered were accurately reported). The Commission has never employed The 

Manual for Complex Litigation to guide its analysis of survey research, although the 

various considerations this treatise references are entirely consistent with an inquiry 

into whether a survey is reasonably reliable and probative. Indeed, under the 

Commission’s authority, any consideration relevant to whether a survey is reasonably 

reliable and probative is relevant. 

33. Although a claim is not deceptive if it is “unreasonably misunderstood by an 

insignificant and unrepresentative segment” of consumers, Deception Statement, 103 

F.T.C. at 178 (quoting In re Kirchner, 63 F.T.C. 1282, 1290 (1963), aff’d, 337 F.2d 

751 (9th Cir. 1964)) (emphasis added), there is no evidence that consumers who 

believe a product could biodegrade within days or weeks are have an unreasonable 

misunderstanding—especially when the product at issue is one labelled 

“biodegradable.” With respect to the survey research at issue in this case, there is no 

legally valid basis to conclude that one set of mistaken estimates (days, weeks) should 

be excluded as unreasonable or “absurd,” whereas another set of mistaken beliefs 

(months, one year) is close enough to count. 

34. The Commission evaluates claims “in light of the sophistication and understanding” 

of the audience. See, e.g., Deception Statement, 103 F.T.C. at 178-79. 

35. The fact that there is no universal “shared understanding” of a term is legally 

irrelevant to whether a substantial minority of consumers have been deceived. 

36. The Green Guides state that “[i]t is deceptive to make an unqualified degradable 

claim for items entering the solid waste stream if the items do not completely 

decompose within one year after customary disposal.” 16 C.F.R. § 260.8(c). 

37. ECM’s advertisements convey expressly or strongly imply the following claims: 

a. ECM Plastics are biodegradable, i.e., will completely break down and decompose 

into elements found in nature within a reasonably short period of time after 

customary disclosure; 

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b. ECM Plastics are biodegradable in a landfill;

c. ECM Plastics are biodegradable in a stated qualified timeframe; and

d. ECM Plastics have been shown to be biodegradable, biodegradable in a landfill, 

or biodegradable in a stated qualified timeframe under various scientific tests, 

including but not limited to, ASTM D5511. 

ECM’s Advertising Claims Are False And Unsubstantiated.

38. Claims are deceptive if they are false or lack a reasonable basis. In re Daniel Chapter 

One, No. 9329, Initial Decision, at *99 (F.T.C. Aug. 5, 2009). ECM’s claims both 

are false and lack a reasonable basis.

39. ECM’s express and implied claims are false and unsubstantiated. 

40. ECM’s claims are false. ECM’s expert, Dr. Sahu, estimates that at minimum it would 

take 30 years for ECM Plastic to completely biodegrade. Another of ECM’s experts, 

Dr. Barlaz, concurs with Complaint Counsel’s expert, Dr. Tolaymat, that landfill 

conditions do not support the biodegradation times claimed by ECM. In addition to 

these concessions, ECM’s express and implied claims are false based on indisputable 

science. A physical blend of 1% ECM Additive and 99% conventional plastic cannot 

change the underlying recalcitrance of the remaining 99% plastic—and ECM offers 

no reliable expert opinion the contrary. A number of biodegradation studies also that 

show ECM’s claims are false.

41. To prevail under the “reasonable basis” theory, Complaint Counsel must prove that 

the advertiser did not have a reasonable basis substantiating its claims at the time it 

made the claims. Daniel Chapter One, No. 9329, Initial Decision, at *99 (citing 

Thompson Med. Co., 104 F.T.C. at 813). ECM’s express and implied claims of 

complete biodegradation in landfills in five years or less lack a reasonable basis for 

two reasons. First, the appropriate level of substantiation is competent and reliable 

scientific evidence. This standard requires well-controlled, well-conducted studies, 

and ECM’s evidence falls far short of this standard. 

42. Second, even assuming that some of the tests show some biodegradation, they fail to 

reach levels of biodegradation beyond that attributable to the additive, much less 

enough to support ECM’s claims of complete biodegradation. Nor were they 

conducted under conditions that come close to approximating the conditions claimed 

in ECM’s advertisement. Accordingly, ECM’s claims are unsubstantiated.

43. “To determine what constitutes a reasonable basis, the Commission considers the 

‘Pfizer factors,’ which are factors relevant to the benefits and costs of developing 

substantiation for the claim.” See POM Wonderful, Docket No. 9344, at 17-18 (citing 

In re Pfizer Inc., 81 F.T.C. 23 (1972)); Substantiation Statement, 104 F.T.C. at 840. 

Application of the Pfizer factors here demonstrates that ECM’s substantiation is 

insufficient to support its claims. 

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44. Biodegradable marketing claims must be supported with a high-level of 

substantiation. Environmental claims are particularly difficult for consumers to 

evaluate: consumers are not in a position to access, let alone evaluate, scientific 

evidence of biodegradability nor see for themselves whether a product actually 

degrades as promised. 16 C.F.R. § 260.4(b); POM Wonderful at 35 (citations 

omitted) (citing Removatron Int’l Corp., 111 F.T.C. 206, 306 n.20, 884 F.2d 1489, 

1496-97 (1st Cir. 1989)) (competent and reliable scientific evidence required for 

“claims whose truth or falsity would be difficult or impossible for consumers to 

evaluate by themselves”). This standard is consistent with the level of substantiation 

expected from experts in the field, who view claims of biodegradable conventional 

plastic with great skepticism. FOF ¶ 134. 

45. Competent and reliable scientific evidence is the quantum of substantiation for 

biodegradability claims in The Guides for Environmental Marketing, 16 C.F.R. § 

260.8, and in numerous consent orders. See, e.g., Down to Earth Designs, Inc., 

Docket No. C-4443 (2014); Clear Choices Housewares, Inc., File No. 122 3288 

(2013); Kmart Corp., File No. 0823186 (2009); Tender Corp., File No. 082-3188 

(2009); Dyna-E Int’l Inc., File No. 082-3187 (2009); Archer Daniels Midland Co., 

117 F.T.C. 403, 415, 410 (1994); Mobil Oil Corp., 116 F.T.C. 113, 120-121 (1993); 

American Enviro. Prods., Inc., 115 F.T.C. 399, 408-09 (1992). 

46. “Competent and reliable scientific evidence” is “tests, analyses, research, studies, or 

other evidence based on the expertise of professionals in the relevant area, that has 

been conducted and evaluated in an objective manner by persons qualified to do so, 

using procedures generally accepted in the profession to yield accurate and reliable 

results.” See, e.g., Brake Guard Prods., Inc., 125 F.T.C. 138 (1998); see also, POM, 

2013 FTC LEXIS 6, at 11. 

47. The Commission then has the burden of proving that the respondent’s purported 

substantiation is inadequate, but is not required to conduct or present studies showing 

that the products do not perform as claimed. See FTC v. QT, Inc., 448 F. Supp. 2d at 

959 (citing FTC v. Sabal, 32 F. Supp. 2d at 1008-09).

48. “[T]he advertiser has the burden of establishing the substantiation it relied on for its 

claim.” Daniel Chapter One, 2009 FTC LEXIS 157, at *137 (initial decision) (citing 

FTC v. QT, Inc., 448 F. Supp. 2d at 959). In addition, “where advertising expressly 

or impliedly represents that it is based on scientific evidence, the advertiser must have 

that level of substantiation, and, in particular, must satisfy the relevant scientific

community that the claim is true.” Removatron, 111 F.T.C. at 299. If advertisements 

“expressly or impliedly promise a scientific level of substantiation,” then a Pfizer

analysis is not required and the ads’ claims must be supported by scientific proof. 

Removatron Int’l Corp., 111 F.T.C. at 297-98, 306 (when evaluating ads “the net 

impression” of which was “that respondents’ claims were based on competent 

scientific proof . . . . we need not apply the Pfizer analysis in determining the 

reasonable basis for respondents’ claims.”); aff’d, 884 F.2d 1489, 1498 (“[A] 

‘reasonable basis,’ when one makes establishment claims, means well-controlled 

scientific studies.”)

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49. Dr. McCarthy and Dr. Tolaymat testified on the level of substantiation they would 

expect, as experts in their fields, to support biodegradability claims. ECM’s evidence 

falls far short of this standard.

50. Dr. McCarthy is a professor of Plastics Engineering at the University of 

Massachusetts Lowell with more than thirty years’ experience studying both the 

chemical and mechanical behavior of polymers, including their biodegradability. He 

testified that there is overwhelming scientific consensus that conventional plastics are 

not biodegradable, because the chemical structure of commercial-grade plastics are 

resistant to naturally-occurring microorganisms. 

51. He also testified that, to satisfy polymer scientists that ECM’s additive will make 

conventional plastics biodegradable in a stated timeframe and disposal condition, the 

claimant should provide the results of well-conducted scientific testing. 

52. The following claims are false and ECM did not possess competent and reliable 

scientific evidence to substantiate them at the time ECM made the claims:

a. ECM Plastics are biodegradable, i.e., will completely break down and decompose 

into elements found in nature within a reasonably short period of time after 

customary disclosure; 

b. ECM Plastics are biodegradable in a landfill;

c. ECM Plastics are biodegradable in a stated qualified timeframe; and

d. ECM Plastics have been shown to be biodegradable, biodegradable in a landfill, 

or biodegradable in a stated qualified timeframe under various scientific tests, 

including but not limited to, ASTM 5511. 

53. Therefore, ECM violated Section 5 of the FTC Act, and Complaint Counsel is 

entitled to the proposed order against ECM. 

ECM’s Deceptive Claims Are Material. 

54. A claim is material if it “involves information that is important to consumers and, 

hence, likely to affect their choice of, or conduct regarding a product.” Kraft, Inc. v. 

FTC, 970 F.2d 311, 322 (7th Cir. 1992) (quotation omitted). Significantly, three 

types of claims are presumed material: (1) express claims; (2) implied claims the 

seller intended to make; and (3) claims involving health, safety, or “other areas with 

which reasonable consumers would be concerned, including a claim that concerns the 

purpose, safety [or] efficacy” of the product. Id. at 322-23 (emphasis added). Thus, 

any claim related to the product’s central characteristics is presumptively material, 

Telebrands, 140 F.T.C. at 292, including any implied claim, Thompson Med., 104 

F.T.C. at 816-17. 

55. Each of ECM’s claims regarding the alleged biodegradability of ECM Plastic is 

material. ECM’s express claim—that the ECM additive would make plastic 

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biodegrade in nine months to five years in a landfill and that testing proved this 

fact—are presumptively material. Kraft, 970 F.2d at 322-23. ECM’s implied 

claims—that the ECM additive would make plastic biodegrade in a reasonably short 

period of time (e.g., less than a year, or at least 5 years) after customary disposal (i.e., 

in a landfill)—are likewise presumptively material under two independent legal 

theories. First, there is ample evidence that ECM intended to make these claims. 

Second, the claims relate to the “central characteristic” of the product (its ability to 

make plastic completely biodegrade, in a landfill, in 5 years or less). Thompson 

Medical Co., 104 F.T.C. 648, 816-817 (1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986), 

cert. denied, 479 U.S. 1086 (1987). 

56. Express representations are presumed material because “the willingness of a business 

to promote its products reflects a belief that consumers are interested in the 

advertising.” Deception Policy Statement at 182 (quoting Cent. Hudson Gas & Elec. 

Co. v. Pub. Serv. Comm’n, 447 U.S. 557, 567 (1980)); see also FTC v. 1st Guar. 

Mortg. Corp., No. 09-cv-61840, 2011 U.S. Dist. LEXIS 38152, at *46 (S.D. Fla. Mar. 

30, 2011); FTC v. Nat’l Urological Group, Inc., 645 F. Supp. 2d at 1190; Medical

Billers Network, Inc., 543 F. Supp. 2d 283, 304 (S.D.N.Y. 2008). Also presumed as 

material are implied claims that are made “by such strong implication that they are 

the functional equivalent of an express claim.” See FTC v. Bronson Partners, LLC, 

564 F. Supp. 2d at 135. 

57. The Commission infers materiality where the record shows that a respondent intended 

to make an implied claim. Novartis Corp., 127 F.T.C. at 686-89 (explaining that the 

ALJ correctly presumed implied superior efficacy claims were material because 

Novartis had intended to make such claims) (citing Deception Policy Statement at 

182); see also FTC v. 1st Guar. Mortg. Corp., 2011 U.S. Dist. LEXIS 38152, at *46 

(“[D]eliberately-implied claims used to induce the purchase of a product or service 

are presumed to be material to consumers as a matter of law.”); FTC v. Bronson 

Partners, LLC, 564 F. Supp. 2d at 135 (“The underlying rationale for finding [an 

intended] claim to be presumptively material is the assumption that the willingness 

of a business to promote its product reflects a belief that the consumers are interested 

in the advertising.”) (quotation and alterations omitted); FTC v. Nat’l Urological 

Group, Inc., 645 F. Supp. 2d at 1190 (“[D]eliberately made implied claims, used to 

induce the purchase of a particular product or service, are presumptively material.”).

58. The Commission also presumes that claims are material if . . . they pertain to the 

“central characteristics of a product . . . such as those relating to its purpose . . . [or] 

efficacy.” Telebrands Corp., 140 F.T.C. at 292 (quoting Thompson Med. Co., 104 

F.T.C. at 816-17) (alteration in original); see also Novartis Corp., 127 F.T.C. at 687 

(agreeing with the ALJ that “the challenged superior efficacy claim relates to central 

characteristic of the product, that is, Doan's ability to relieve back pain.”); Brake 

Guard Prods., Inc., 125 F.T.C. 138, 210-11 (1997) (initial decision) (“The 

Commission also presumes claims to be material if they pertain to the ‘central 

characteristics of a product . . . such as those relating to its purpose . . . [or] efficacy,’ 

or to safety. The majority of the challenged claims made for the product directly 

involved its purpose, efficacy and safety. The central theme of respondents’ ads was 

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that the Brake Guard device was an antilock brake system that provided certain 

braking and stopping distance improvements, and that installing an antilock brake 

system like Brake Guard would make the vehicle safer.”) (alteration in original) 

(citation omitted), aff’d., 125 F.T.C. 138 (1998). 

59. Notably, as a manufacturer of end-use products, Island Plastic Bag’s (“IPB’s”) intent 

in conveying the “nine months to five years” claim is “a predicate fact giving rise to 

the presumption of materiality.” Deception Statement, 103 F.T.C. at 182; See also 

Kraft, 970 F.2d at 311 (presumption of materiality applies “where there is evidence 

that the seller intended to make the claim”) (citation omitted); FTC v. QT, Inc., 448 F. 

Supp.2d 908, 960 (N.D. Ill. 2006). 

60. There are many different ways an advertiser can convey the material message that its 

product’s central feature functions as advertised. See, e.g., Thompson Med., 104 

F.T.C. at 818 (“Evidence from the ads themselves confirms our conclusion that 

Thompson was making implied efficacy representations when it represented 

Aspercreme to be a new product.”); see also Sterling Drug, Inc. v. FTC, 741 F.2d 

1146, 1151-52 (9th Cir. 1984) (upholding Commission finding that broad references 

to drug’s “quality” would be interpreted by consumers as encompassing “efficacy,” 

because, with respect to the product at issue, “effective pain relief” was “consumers’ 

primary concern”). 

ECM Provided Its Customers With The Means And Instrumentalities To Deceive End-Use 

Consumers.

61. “‘[I]t is well established that one who puts into the hands of others the means by 

which such others may deceive the public is equally as responsible for the resulting 

deception.’” FTC v. Magui Publishers, Inc., No. 91-55474, 1993 U.S. App. LEXIS 

28684, at *10 (9th Cir. Oct. 6, 1993)) (quoting In re Litton Indus., Inc., 97 F.T.C. 1, 

48 (1981)). Specifically, under the doctrine of means and instrumentalities (“M&I”), 

a respondent is primarily liable for deceptive claims even when it does not convey the 

misrepresentations directly to end-use consumers. FTC v. Winstead Hosiery Co., 258 

U.S. 483 (1922). The purpose of the M&I doctrine is simple: “it is in the public 

interest to stop any deception at its incipiency.” Regina Corp. v. FTC, 322 F.2d 765, 

768 (3d Cir. 1963). 

62. The doctrine applies in at least two circumstances: the passing on of deceptive 

tangible items and the passing on of specific deceptive claims from the tangible item. 

In re Shell Oil Co., 128 F.T.C. 749, 766 (1999) (Swindle, C., dissenting). M&I 

liability has been imposed to address a wide variety of deceptive claims. See, e.g., 

FTC v. Winsted Hosiery Co., 258 U.S. 483, 494 (1922) (deceptive labels on knit 

goods sold to retailers); Magui Publishers, Inc., No. 91-55474, 1993 U.S. App. 

LEXIS 28684, at *10-11 (certificates, brochures, and signed prints); FTC v. Cyberspy 

Software, LLC, No. 6:08-cv-1872-ORL-31GJK, 2010 U.S. Dist. LEXIS 145969 

(M.D. Fla. April 22, 2010) (computer spyware); FTC v. Cruz, No. 08-1877 (JP), 2008 

U.S. Dist. LEXIS 103103, at *4-5 (D.P.R. Dec. 18, 2008) (pamphlet containing 

instructions on how to perpetuate an envelope stuffing scheme, as well as sample 

advertisements and a script to carry out the scheme); FTC v. Norvergence, Inc., No. 

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04-5414 (DRD), U.S. Dist. LEXIS 40699, at *7-8 (D.N.J. July 18, 2005) (consumer 

rental agreements); FTC v. Five-Star Auto Club, 97 F. Supp. 2d 502, 539 (S.D.N.Y. 

2000) (marketing materials to recruit other participants to “free dream vehicle” 

pyramid scheme); In re N.E.W. Plastics Corp., No. C-4449, 2014 FTC LEXIS 71, at 

*8 (Apr. 3, 2014) (plastic lumber marketing brochures); In re Nonprofit Mgmt. LLC, 

151 F.T.C. 144, 154 (2011) (“Tested Green” logo and “green” certification). 

63. ECM provided its customers with the means and instrumentalities to deceive 

consumers. Its product has no economic value unless it allows purchasers to make 

biodegradability claims about their products; without such a claim, a customer’s 

product would be indistinguishable from the products of its competitors who did not 

raise their costs by buying ECM’s additive. The fact that some ECM customers sell 

to others in the production or distribution chain does not change this fact. Each 

purchaser in such a chain only makes money from purchasing the ECM Additive if 

the claims can eventually be passed to a retailer who can use those claims to sell to 

end-use consumers. Given this fact, ECM provides its customers with a multitude of 

marketing tools to help sell their products to end-use consumers, all of which feature 

ECM’s false and unsubstantiated claims: the ECM logo, the ECM Certificate of 

Biodegradability, and other marketing material such as the ECM flyer and ECM leaf. 

(SOF ¶¶39-41; 65-67). ECM’s customers, in turn, use the deceptive claims provided 

in these material to sell their products. (SOF ¶36; ¶52; ¶¶59-60). 

64. First, ECM routinely provided its customers with its “biodegradable” logo—a green 

tree with the wording “ECM” and “Biodegradable,” and instructed customers to use 

the logo on consumer products to promote the products’ alleged biodegradability. 

(SOF ¶¶62-64). Many customers followed ECM’s instructions, placing the ECM 

logo on products as varied as grocery bags, online golf tee ads, and shampoo 

containers. (SOF ¶25). By providing its customers with the ECM logo (and 

encouraging them to use it on their products and advertising), ECM gave them the 

means to deceive customers and end-use consumers. 

65. Second, ECM routinely provided its customers with a “Certificate of 

Biodegradability,” and instructed them to use the certificate to prove the veracity of 

biodegradable claims to downstream customers and end-use consumers. (SOF ¶¶46-

48; ¶53; ¶56). In fact, ECM expressly told its customers to “present” the certificate to 

downstream customers as a way of “assuring” them that ECM Plastic had been tested 

and proven to biodegrade. (SOF ¶56). Many customers followed ECM’s 

instructions, passing the certificate to their distributors and customers, posting the 

certificate on their website, and creating their own certificates with precisely the same 

(or very similar) wording as the ECM certificate. (SOF ¶¶59-61). ECM thus provided 

its customers with the means to fool downstream customers—and ultimately end-use 

consumers—into believing that they were purchasing tested and proven 

biodegradable plastic.

66. Finally, ECM provided its customers with dozens of “sales tools” and emails to help 

them market their products based on the ECM’s additives supposed efficacy. (SOF 

¶¶65-67; ¶69-70). ECM also actively helped customers to develop “biodegradable” 

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claims tailored to their product. Numerous emails show ECM employees reviewing, 

tweaking, and approving advertising copy (SOF ¶70), and testimony from ECM 

employees and customers reveals ECM’s eagerness to funnel biodegradable claims 

into the market. (SOF ¶¶65-67; ¶69-70). By providing customers with “sales tools” 

and personalized help in developing biodegradable claims, ECM gave its customers 

the means to deceive downstream customers and end-use consumers. 

ECM’s Contention That It Never Made the Express and Implied Claims Set Forth Above 

Is Baseless. 

67. There is no merit in ECM’s argument that its customers are “highly sophisticated” 

plastic manufacturers who do not perceive biodegradable claims the same way as 

end-use consumers. This defense fails for two reasons. 

68. First, sophistication, or lack thereof, is irrelevant to interpretation of ECM’s express 

claims. As the Ninth Circuit explained in Pantron I, when a “case involves express 

objective product claims,” there is no need to consider whether they are “so farfetched that reasonable consumer would not believe them” 33 F.3d at 1096 n.21 

(emphasis in original, quoting Thompson Medical, 104 FTC at 788-89 n.6). 

69. Second, ECM’s customers are not biodegradation experts. Many ECM customers 

and downstream users were small businesses that had neither the resources nor the 

sophistication to meaningfully understand or evaluate the results of biodegradation 

tests. (SOF ¶95; SOF ¶87). Therefore, they relied solely upon ECM’s express claims 

and purported substantiation. (SOF ¶58). 

70. When ECM attempted to sell its additive to 3M Corporation, the results illustrate 

both the lack of sophistication of their actual customers and the difficulty ECM 

encountered when selling its product to a truly sophisticated customer. Unlike many 

customers who simply accepted ECM’s claims, 3M conducted its own test showing 

no measurable biodegradation of the plastic samples. FOF ¶¶92-94; FOF ¶¶ 180-81. 

Thus, 3M, an actual sophisticated “customer,” did not use ECM’s additive in its 

products, and never passed any of ECM’s false claims to consumers. This incident 

demonstrates why ECM’s entire business was dependent on unsophisticated buyers. 

71. A “pilot study” conducted by ECM’s own expert, Dr. Stewart, provides additional 

evidence of lack of “sophistication.” In that study, 37.5% of the customers 

questioned believed that biodegradation would happen within one year, making them 

essentially indistinguishable from end-use consumers. The study’s sample size is too 

small to support meaningful conclusions. FOF ¶ 410. Nonetheless, these results tend 

to corroborate the already overwhelming evidence that at least some, if not most, of 

ECM’s customers were unsophisticated regarding biodegradability. 

72. There is no merit in ECM’s argument that, even if some of its direct and indirect 

consumers were not sophisticated, ECM effectively qualified its biodegradable claims 

by delivering them as a package with verbal and written qualifiers. ECM’s 

“qualification defense” fails for four reasons. First, to the extent that ECM’s 

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argument rests upon oral and written “disclaimers” purportedly disseminated 

separately from the false claims, the argument fails as a matter of law. An advertiser 

cannot “cure the deception” in one advertisement with different statements in another. 

In re Chrysler Corp., 87 F.T.C. 719, 1976 FTC LEXIS 397, *59 (Apr. 13, 1976); 

Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1496-97 (1st Cir. 1989). 

73. “The public has a right to expect each of respondent's advertisements to be equally 

free of deception.” Id. See In re Raymond Lee Organization, Inc., 92 F.T.C. 489, 

618-19 (1978) (“If an initial contact with a purchaser is deceptive, the fact that the 

truth may be subsequently revealed will not necessarily eliminate the initial wrong.”); 

Removatron, 884 F.2d at 1496-97 (“Each advertisement must stand on its own merits; 

even if other advertisements contain accurate, non-deceptive claims, a violation may 

occur with respect to the deceptive ads.”).

74. Third, “disclaimers or qualifications in any particular ad are not adequate to avoid 

liability unless they are sufficiently prominent and unambiguous to change the 

apparent meaning of the claims and to leave an accurate impression. Anything less is 

only likely to cause confusion.” FTC v. Direct Mktg. Concepts, 624 F.3d 1, 24 (1st 

Cir. 2010) (quotation omitted). ECM claims, without support, that it disclaimed the 

express nine-month-to-five-year claim by stating that biodegradation times are 

“approximate.” Even if true, however, such a “disclaimer” poses just the type of 

confusion the cases warn about. One logical and facially reasonable interpretation of 

the claim given the “disclaimer” is that the nine month to five years claim is an 

approximation of the time it typically takes ECM Plastic to completely biodegrade in 

a landfill. However, this range is off by decades, if not centuries. Thus, even with 

ECM’s disclaimer, the claim is not even close to being an accurate approximation. 

75. Fourth, even if ECM qualified its claims to its purportedly “sophisticated customers,” 

ECM’s is still responsible for the claims as conveyed to end-use consumers because it 

intended (and insisted) that its customers use the “sales tools” it provided to pass 

claims down the distribution chain and ultimately to consumers. Thus the 

effectiveness of the qualifications must be viewed from the intended “relevant 

audience”—the end-use consumer, and not its customers. Removatron, 884 F.2d at 

1497 (“We reject the contention that the relevant audience is only the beauty industry. 

While it is true that petitioners placed their ads in trade magazines, it is also true that 

their sales personnel provided brochures and other information to purchasers who 

were then instructed to provide these materials to potential clients. Furthermore, 

petitioners provided advertising to purchasers who would then place it in local print 

media. The relevant audience thus includes potential purchasers and customers of 

purchasers. The two qualifications made by petitioners are, as the Commission 

found, ineffective to dispel the overall message that the machine will remove hair 

permanently.”) (emphasis added). As discussed in prior sections, end-use consumers 

understand ECM’s biodegradable claims to mean rapid biodegradation times of 

around one year in a landfill.

76. Finally, ECM’s own customers’ understanding of the claims further demonstrate the 

ineffectiveness of ECM’s supposed “qualifiers.” Many of these customers testified 

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that they self-evidently understood ECM to be claiming complete biodegradability in 

nine months to five years in a landfill. Thus, any “qualifiers” were demonstrably 

ineffective. In addition to being ineffective, ECM’s qualifications were rare. Dozens 

of ECM emails and marketing documents uniformly reiterate ECM’s deceptive 

claims without any qualifier. Thus, even if the qualifiers could have been effective, 

which they clearly were not, such sparse qualifications do no rise to the prominent 

and unambiguous level required by the law. 

D. Remedy

Corporate liability

77. A corporation is liable for violations of the FTC Act if the corporation “engaged in 

misrepresentations or omissions of a kind usually relied on by reasonably prudent 

persons and [] consumer injury resulted.” FTC v. Pantron I Corp., 33 F.3d at 1102 

(citing FTC v. Amy Travel Serv., 875 F.2d at 573). 

78. ECM is liable under Section 5 of the FTC Act both for making biodegradability 

claims to its customers, and for providing its customers with the means and 

instrumentalities to deceive their customers and end-use consumers. 

Entry of the Notice Order is Appropriate and Necessary 

79. Entering a cease and desist order to stop ECM’s ongoing deceptive advertising is 

appropriate because the findings of fact are “supported by substantial evidence upon 

the record as a whole.” Niresk Indus. Inc. v. FTC, 278 F.2d 337, 340 (7th Cir. 1960). 

Once a violation is found, the FTC has wide latitude in crafting the appropriate relief. 

The Notice Order sets forth relief appropriate for this case:

In carrying out this function the Commission is not limited to 

prohibiting the illegal practice in the precise form in which it is found 

to have existed in the past. If the Commission is to attain the 

objectives Congress envisioned, it cannot be required to confine its 

“road block” to the narrow lane the transgressor traveled; it must be 

allowed effectively to close all roads to the prohibited goal, so that its 

order may not be “by-passed” with impunity. Moreover, the 

Commission has wide discretion in its choice of a remedy deemed 

adequate to cope with the unlawful practices disclosed. 

FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952); Removatron Int’l Corp. v. FTC, 884 

F.2d at 1498 (“Our role in reviewing a Commission order has been defined by the 

Supreme Court: It has been repeatedly held that the Commission has wide discretion 

in determining the type of order that is necessary to cope with unfair practices found, 

and that Congress has placed the primary responsibility for fashioning orders upon 

the Commission.”). 

80. This “wide discretion” allows the Commission to issue orders with fencing-in 

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provisions that are broader than the respondent’s unlawful conduct. Telebrands 

Corp. v. FTC, 457 F.3d 354, 357 n.5 (4th Cir. 2006). 

81. Pursuant to this discretion, courts have affirmed Commission orders requiring 

remedies as diverse as prohibitions on individual use of zone pricing (FTC v. 

National Lead Co., 352 U.S. 419 (1957)); cancellation of existing contracts (North 

Texas Specialty Physicians v. FTC, 528 F.3d 346 (5th Cir. 2008); mandated 

divestiture of assets to create a competitor (Chicago Bridge & Iron Co N.V. v. FTC, 

534 F.3d 410 (5th Cir. 2008)); requirements for varying levels of substantiation for 

future claims (See, e.g., Sears, Roebuck & Co. v. FTC, 676 F.2d 385 (9th Cir. 1982) 

(requiring competent and reliable evidence for future performance claims for major 

household appliances); Thompson Medical Co. v. FTC, 791 F.2d 189 (1986) 

(requiring at least two adequate and well-controlled, double-blinded clinical studies 

for future efficacy claims for a topical analgesic)); disclosure requirements (Porter & 

Dietsch, Inc. v. FTC, 605 F.2d 294, 307 (1979)) and trade name excision (Continental 

Wax Co. v. FTC, 330 F.2d 475 (1964)), just to name a few. The underlying inquiry in 

all these orders is the same: what is the necessary remedy to ensure that respondents 

do not again violate the FTC Act? See FTC v. Colgate-Palmolive Co., 380 U.S. 374 

(1964). 

82. The Commission’s “wide discretion” to craft that remedy is subject to only two 

constraints: (1) the order must bear a “reasonable relation” to the unlawful practices, 

Jacob Siegel Co. v. FTC, 327 U.S. 608, 612 (1946); and (2) it must be sufficiently 

clear and precise that its requirements can be understood, Colgate-Palmolive, 380 

U.S. at 392. 

83. The Commission may order “provisions that are broader than the conduct that is 

declared unlawful.” Telebrands Corp., 457 F.3d at 357 n.5; see also, e.g., ColgatePalmolive Co., 380 U.S. at 394-95; FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952); 

POM Wonderful, 2013 FTC LEXIS 6, at *50. To the extent the proposed notice order 

goes beyond ECM’s specific practices, such fencing-in relief is appropriate in light of 

ECM’s willful and repeated misrepresentations about the core attributes of its sole 

product and its persistent, knowing misrepresentation of scientific evidence. The 

Notice Order is narrowly crafted to prevent ECM from continuing to deceive its 

customers, others in the manufacturing and distribution chain, and end-use consumers 

while still allowing ECM to make truthful and substantiated claims. 

84. The Notice Order would allow ECM to make truthful, substantiated claims. First, if 

its substantiation only applies to limited disposal environments, they can make claims 

based on such substantiation so long as they conspicuously disclose that limitation. 

Second, ECM can disclose the substantiated time to complete biodegradation. 

Finally, because ECM’s own experts admit that ECM Plastics may take decades or 

centuries to completely biodegrade in landfills, ECM could disclose, with appropriate 

qualifications, the rate and extent of biodegradation shown in valid, properly 

controlled and conducted, scientific tests. Because partial biodegradability does not 

demonstrate that a product will completely biodegrade, let alone at the same rate as 

demonstrated in a short term test, additional disclosures are needed to prevent 

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deceptive impressions about the meaning of test results. (SOF ¶158 (showing that at 

least a significant minority of consumers extrapolate rate and extent information 

concerning biodegradation times)). In short, the Notice Order is crafted carefully to 

permit ECM to make truthful claims, while preventing it from using incomplete test 

data to deceive consumers. 

85. ECM has been misusing incomplete test data to deceive consumers for years. In fact, 

ECM’s repeated and willful misrepresentations to its customers and end-users about 

the efficacy of its product, and about its purported scientific “proof” of that efficacy, 

justify strong injunctive relief. As the Commissioner recently noted in POM: 

when determining whether an order is reasonably related to the 

unlawful practices, the Commission should consider “(1) the 

seriousness and deliberateness of the violation; (2) the ease with 

which the violative claim may be transferred to other products; and 

(3) whether the respondent has a history of prior violations.” 

Stouffer Foods Corp., 118 F.T.C. at 811; see also Telebrands 

Corp., 457 F.3d 354, 358 (4th Cir. 2006); Kraft, Inc., 970 F.2d at 

326. “The reasonable relationship analysis operates on a sliding 

scale — any one factor’s importance varies depending on the 

extent to which the others are found. . . . All three factors need not 

be present for a reasonable relationship to exist.” Telebrands 

Corp., 457 F.3d at 358-59. (Emphasis added.) 

POM Wonderful, 2013 FTC LEXIS 6, at *49. 

86. ECM’s violations were serious, repeated, and blatant. Indeed, Robert Sinclair, 

ECM’s President and CEO, “acted in blatant and utter disregard of the law.” 

Standard Oil Co. v. FTC, 577 F.2d 653, 662 (9th Cir. 1978). Sinclair had complete 

control over every aspect of ECM’s marketing and testing. (SOF ¶72). He was 

responsible for ECM’s prominent and express “9 months to 5 years” claim, even 

though he knew that the claim was false. (SOF ¶72). He was instrumental in the 

dissemination of the bogus and misleading McLaren-Hart study. He also knew about 

five different adverse adjudications regarding the efficacy of ECM Plastics, and 

multiple bad test results, but concealed this information from his customers and 

continued to promulgate the same debunked claims about his product’s efficacy and 

the strength of testing. In fact, he aggressively discouraged his customers from doing 

their own testing, insisting that existing tests were sufficient to prove ECM’s 

biodegradability claim. Finally, even after promulgation of the Green Guides, and 

during an FTC investigation, he directed ECM to switch its marketing to the facially 

misleading “some period greater than a year claim.” As in POM, ECM has a 

“demonstrated propensity to misrepresent to [its] advantage the strength and 

outcomes of scientific research.” POM at 51. 

87. A violation is transferrable where other products could be sold utilizing similar 

techniques. FTC v. Colgate-Palmolive Co., 380 U.S. at 395; Sears, Roebuck & Co. v. 

FTC, 676 F.2d at 392. 

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88. The Commission has issued orders covering many of a company’s products on the 

basis of violations as to a single product. Litton Indus., Inc., 97 F.T.C. 1, 78-80 

(1981), aff’d as modified, 676 F.2d 364 (9th Cir. 1982); Sears Roebuck & Co., 95 

F.T.C. 406, 515-22 (1980), aff’d, 676 F.2d 385 (9th Cir. 1982). 

89. The size and duration of the deceptive advertising campaign also is considered in 

evaluating the seriousness of the violations. Stouffer Foods Corp., 118 F.T.C. at 812-

13; Kraft, Inc., 114 F.T.C. at 140. 

90. Violations have been found to be “serious” where “claims were consciously made 

despite flaws in the studies relied upon by [the respondent], and because consumers 

who were not able to assess the validity of those claims relied on the 

misrepresentation.” See Schering Corp., 118 F.T.C. at 1121 (initial decision). 

91. “The more egregious the facts with respect to a particular element, the less important 

it is that another negative factor be present.” Sears, Roebuck & Co. v. FTC, 676 F.2d 

at 392; see also Thompson Med. Co., 104 F.T.C. at 833. 

92. Part I.A of the Order prohibits degradability claims for any product, package, or 

service unless they are true, not misleading, and substantiated, and specifies 

qualifications needed to prevent deception in some contexts. It is consistent with the 

provisions in the Commission’s Green Guides that address biodegradability claims. 

Part I.B prohibits environmental benefit claims for any product, package, or service 

unless the claim is true, not misleading and substantiated. Part I is consistent with the 

relief approved in recent Commission settlements. E.g., Down to Earth Designs, Inc. 

d/b/a gDiapers, Docket No. C-4443 (Mar. 18, 2014); and FTC v. AJM Packaging 

Corp., No. 1:13-cv-1510 (D.D.C. Oct. 1, 2013). 

93. Part I requires competent and reliable scientific evidence to substantiate claims where 

appropriate. Commission orders requiring respondents to have, where appropriate, 

competent and reliable scientific evidence have been consistently upheld. Daniel 

Chapter One, 2009 FTC LEXIS 157, at *278-79 (initial decision) (citing Telebrands 

Corp., 140 F.T.C. at 347; Kraft, Inc., 114 F.T.C. at 149; Thompson Med. Co., 104 

F.T.C. at 844; Removatron Int’l Corp., 111 F.T.C. at 318.).

94. The Notice Order’s definition of “competent and reliable scientific evidence” requires 

that any scientific protocols used to substantiate biodegradability claims assure 

complete decomposition within the stated timeframe (or a reasonably short period of 

time) and simulate the physical conditions of the stated disposal environment. This 

provision is meant to ensure that ECM no longer makes unqualified biodegradable 

claims without adequate support, and, in particular, that ECM no longer (1) 

extrapolates from minimal biodegradation to complete decomposition or (2) makes 

landfill claims based on tests like ASTM D5511 that do not simulate landfills.

95. Part II of the Order prohibits ECM from providing, in connection with the marketing 

of any product, package, or service, the means and instrumentalities to make any 

false, unsubstantiated, or misleading statement of material fact regarding any 

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environmental benefit. Part II is consistent with the relief approved in recent 

Commission settlements. E.g., Serious Energy, Inc., No. C-4359 (May 16, 2012); 

and THV Holdings, LLC, No. C-4361 (May 16, 2012) 

96. Parts III through VII of the Order are standard provisions requiring recordkeeping, 

order distribution, notice to the Commission of corporate status changes, the filing of 

compliance reports, and termination of the order, respectively. They are necessary to 

ensure the Order’s effectiveness and to facilitate the Commission’s monitoring and 

enforcement of the Order. These provisions are consistent with the relief in virtually 

all Commission settlements.

97. ECM made deceptive biodegradability claims deliberately over an extended period of 

time. ECM can easily make similar claims for other products, packaging, and 

services, including other plastic products and non-plastic products. Consumers 

cannot assess the accuracy of these claims for themselves. 

98. The seriousness and deliberateness of ECM’s violations, the duration of the deceptive 

advertising campaign, the difficulty that consumers have in judging the truth or falsity 

of the biodegradability claims, and the transferability of the claims to other products, 

packaging, and services justifies the appropriateness of the Order’s fencing-in relief, 

including the scope of the Order, which covers claims for any product, package or 

service.

99. The Notice Order does not violate ECM’s First Amendment right to communicate 

truthful commercial speech about important environmental benefits. Specifically, 

ECM’s argument that that the government must use less restrictive alternatives under 

Pearson v. Shalala, 165 F.3d 650, 658 (D.C. Cir. 1999); and that the proposed 

conduct relief would prevent it from providing truthful information to its customers 

about important environmental benefits of its products in conflict with federal 

environmental policy lacks merit.. 

100. ECM’s arguments fail for three reasons. First, ECM’s assertion that the Notice Order 

would require “complete elimination of plastic within one year as a condition 

precedent to use of the term ‘biodegradable,’” ignores the two permissible qualified 

claims. As discussed in detail above, ECM can make truthful claims about 

biodegradation, and about its test results, as long as it has competent and reliable 

scientific evidence to support those claims. 

101. Second, ECM’s commercial speech argument is legally flawed. Although the First 

Amendment protects commercial speech, it is well-established that government can 

regulate deceptive commercial speech through adjudication. The Supreme Court has 

long held that “the Constitution accords less protection to commercial speech than to 

other constitutionally safeguarded forms of expression.” Bolger v. Youngs Drug 

Prods. Corp., 463 U.S. 60, 64 (1983). Commercial speech receives less protection 

than other forms of expression under the First Amendment because “commercial 

speech may be more durable than other kinds. Since advertising is the sine qua non

of commercial profits, there is little likelihood of its being chilled by proper 

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regulation and foregone entirely.” Virginia State Bd. of Pharmacy v. Virginia 

Citizens Consumer Council, 425 U.S. 748, 772 (1976). 

102. Importantly, for commercial speech to receive the protections of the First 

Amendment, the commercial speech “at least must concern lawful activity and not be 

misleading.” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 

557, 566 (1980). 

103. Moreover, the government may prohibit false or misleading commercial speech 

entirely. See In re R. M. J., 455 U.S. 191, 203 (1982) (“Misleading speech may be 

prohibited entirely”). In this case, ECM’s ongoing marketing is deceptive and 

misleading, and will continue to mislead consumers without appropriate conduct 

relief. Furthermore, unlike its customers and end-use consumers of ECM Plastics, 

who lack the ability to independently verify the veracity of ECM’s claims, ECM has 

“extensive knowledge of both the market and their products. Thus, [ECM is] well 

suited to evaluate the accuracy of [its] messages and the lawfulness of the underlying 

activity.” Central Hudson at 564 (citing Bates v. State Bar of Arizona, 433 U.S. 350, 

381 (1977)). 

104. Furthermore, ECM’s reliance on Pearson is misplaced. Pearson held that an FDA 

rule effectively banning specific health claims was an unduly restrictive means to 

regulate potential deceptive speech, and that the FDA needed to consider possible 

curative disclosures. Pearson v. Shalala, 165 F.3d at 659-660. In contrast, this case 

involves adjudication of actual deceptive claims in commerce. The Commission 

recently rejected this argument in POM, reasoning that: 

In addition, the Commission’s approach to address misleading advertising, 

which is a case-by-case adjudication after ads have been disseminated, differs 

from regulatory efforts that prohibit categories of speech or rely on prior 

approval of the language to be used. The latter serve as illustrations of “bars” 

on commercial speech and are inapplicable to the detailed ex post analysis we 

engage in here, based on a full record about the ads in question. [Internal 

citations omitted].

POM Wonderful, 2013 FTC LEXIS 6, at *44. 

105. Third, ECM’s federal environmental policy argument is legally incorrect. The FTC 

need not permit deceptive commercial speech in furtherance of environmental policy. 

Indeed, the FTC’s role is to protect consumers in the marketplace from such unfair or 

deceptive acts or practices. In this case, the instant action and proposed relief further 

that role. Furthermore, even if environmental policy were the FTC’s charge, ECM 

has not, and cannot, establish that lying to consumers about the efficacy of its product 

furthers any such policy. 

106. ECM’s practices, as alleged in the Complaint, constitute unfair or deceptive acts or 

practices, in or affecting commerce, in violation of Section 5(a) of the FTC Act, and 

they warrant the relief proposed in the Commission’s Notice Order. 

PUBLIC DOCUMENT
85 

III. WITNESS INDEX

Witness Description Date - First 

Appearance 

Tr. Pages In 

Camera

Alyssa Ullman Northeast Laboratories, Inc. 

(“Northeast”) 

Biodegradation Studies 

employee, as Northeast’s 

designee 

N/A (CCX-815 

(Ullman 

Dep.)) 

Timothy Barber Principal at Environ 

International Corp. 

(“Environ”) 

8/20/2014 Tr. 2003 

(Direct)

Tr. 2070 

(Cross)

Tr. 2147 

(Redirect)

Tr. 2154 

(Recross)

(CCX-969 

(Barber Dep.))

Thomas Poth Eden Research Laboratory 

(“Eden”) Lab Director, as 

Eden’s designee 

8/13/2014 Tr. 1435 

(Direct)

Tr. 1485 

(Cross)

Tr. 1542 

(Redirect)

Tr. 1547 

(Recross)

Alan Poje former ECM Regulatory 

Specialist

N/A (CCX-816 

(Poje Dep.)) 

PUBLIC DOCUMENT
86 

Witness Description Date - First 

Appearance 

Tr. Pages In 

Camera

Thomas Nealis ECM Director of Sales N/A (CCX-813 

(Nealis, Dep.))

Robert Sinclair ECM President, in his 

individual capacity and as 

ECM designee 

8/08/2014

8/15/2014 

(CCX-818 

(Sinclair, 

Dep.); CCX819 (Sinclair, 

Dep.); Tr. 745 

(Direct); Tr. 

797 (Cross); 

Tr. 1603 

(Cross)

Tadahisa Iwata Professor of Polymer 

Chemistry at the University 

of Tokyo and Editor for 

Journal of Polymer 

Degradation and Stability 

published by Elsevier Inc. 

(“Elsevier”), as Elsevier’s 

designee 

N/A (CCX-808 

(Iwata Dep.)).

James Bean Quest Plastics, Inc. 

(“Quest”) President and 

Chief Executive Officer, as 

Quest’s designee

N/A (CCX-817 

(Bean Dep.))

PUBLIC DOCUMENT
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Witness Description Date - First 

Appearance 

Tr. Pages In 

Camera

Annette Gormly Kappus Plastic Company, 

Inc. (“Kappus”) Vice 

President, as Kappus’ 

designee 

N/A (CCX-812 

(Gormly 

Dep.)) 

Adrian Hong Island Plastic Bags, Inc. 

(“Island Plastic Bags”), 

General Manager, as Island 

Plastic Bags’ designee

N/A (CCX-811 

(Hong Dep.)). 

James Blood Free-Flow Packaging 

International, Inc. (“FP”) 

General Counsel, as FP’s 

designee 

N/A (CCX-810 

(Blood Dep.)). 

Stephen Joseph 3M Company (“3M”) Staff 

Scientist, as 3M’s designee

N/A (CCX-821 

(Joseph Dep.)) 

PUBLIC DOCUMENT
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Witness Description Date - First 

Appearance 

Tr. Pages In 

Camera

David Sandry Flexible Plastics, Inc. 

(“Flexible”) Vice President, 

as Flexible’s designee

N/A (CCX-809 

(Sandry 

Dep.)).

George Collins Eagle Film Extruders Inc. 

(“Eagle”) President, as 

Eagle’s designee

N/A (CCX-804 

(Collins 

Dep.)) 

Frank Santana Down To Earth All 

Vegetarian Organic &

Natural (“Down To Earth”) 

Marketing Director, as 

Down To Earth’s designee 

N/A (CCX803(Santana 

Dep.)) 

Ashley Leiti D&W Fine Pack, LLC 

Southeastern National 

Accounts Manager, as 

D&W’s designee 

N/A (CCX802(Leiti 

Dep.)) 

PUBLIC DOCUMENT
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Witness Description Date - First 

Appearance 

Tr. Pages In 

Camera

Donald Kizer D&W Fine Pack, LLC 

(“D&W”) Purchasing 

Manager, as D&W’s 

designee 

N/A (CCX-801 

(Kizer Dep.))

Robert Ringley BER Plastics, Inc. (“BER”) 

Vice President, as BER’s 

designee 

N/A (CCX-800 

(Ringley 

Dep.)) 

Ramy Samuels A.N.S. Plastics Corp. 

(“ANS”) Vice President, 

ANS’s designee

N/A (CCX-822 

(Samuels 

Dep.)) 

Kenneth C. Sullivan Jr. ECM Chief Financial 

Officer

8/07/2014 Tr. 690 

(Direct)

Tr. 712 

(Cross)

Tr. 738 (Redirect)

PUBLIC DOCUMENT
90 

Witness Description Date - First 

Appearance 

Tr. Pages In 

Camera

Dr. Thalbet Tolaymat Environmental Engineer 

and researcher in the field 

of solid waste management 

at the U.S. Environmental 

Protection Agency's Office 

of Research and 

Development. 

8/05/2014 Tr. 112 

(Direct)

Tr. 212 

(Cross)

Tr. 347 (Redirect)

Tr. 255 (Recross)

Dr. Steven McCarthy Professor of Plastics 

Engineering at the 

University of 

Massachusetts Lowell (the 

"University"). He is also 

the Principal Investigator 

for studies on plastics 

engineering and polymer 

research. Dr. McCarthy has 

more than three decades of 

experience studying both 

the chemical and 

mechanical behavior of 

polymers, including the 

biodegradability of 

polymers used to form 

conventional, commercialgrade plastics.

8/06/2014 Tr. 359 

(Direct)

Tr. 480 

(Cross)

Tr. 680 (Redirect)

Dr. Shane Frederick Dr. Frederick is a Professor 

of Marketing at Yale 

University. 

8/11/2014 Tr. 1025 

(Direct)

Tr. 1181 

(Cross)

Tr. 1347 (Redirect)

Tr. 1376 (Recross)

Tr. 1376 (Redirect)

Tr. 1424 (Recross)

PUBLIC DOCUMENT
91 

Witness Description Date - First 

Appearance 

Tr. Pages In 

Camera

Dr. Frederick C. 

Michel, Jr.

Dr. Michel is an Associate 

Professor of Biosystems 

Engineering at The Ohio 

State University, with an 

adjunct appointment in the 

University’s Department of 

Chemical and Biomolecular 

Engineering. 

8/29/2014 Tr. 2829 

(Direct)

Tr. 2903 

(Cross)

Tr. 2969 (Redirect)

PUBLIC DOCUMENT
92 

IV. EXHIBIT INDEX

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0 Mug with ECM leaf logo JX-1-A, dated 

9/4/2014; Tr. 521

CCX-00 Cobs Bread: ECM Website 

listed on plastic bag

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0001 ECM BioFilms Certificate 

(Redacted)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0002 Certificate of Assurance of 

Minimum Loading Rate

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0003 ECM BioFilms Flyer (9 

months - 5 years) (Complaint 

Exhibit 2)

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 926

CCX-0004 ECM BioFilms Mechanism 

for the Biodegradation of 

Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0005 ECM BioFilms Life 

Expectancy of Master Pellets

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 21

CCX-0006 ECM BioFilms - Our 

Technology for 

Biodegradation of Plastic 

Products

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 927

CCX-0007 ECM Biofilms Brochure: 

Are YOU thinking about 

Sustainability? (Complaint 

Ex. 3)

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 928

CCX-0008 ECM BioFilms Logo JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0009 ECM BioFilms Leaf JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0010 ECM BioFilms Letter to 

Interested Parties

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0011 ECM BioFilms Letter to 

Interested Party

JX-1-A, dated

9/4/2014; Tr. 521

CCX-0012 ECM BioFilms Comparison 

of Competing Biodegradable 

Plastics Chart 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0013 ECM BioFilms Logo JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0014 ECM Biofilms Certificate of 

Biodegradability (Redacted)

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 784

CCX-0015 ECM BioFilms Flyer (some 

period)

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 43

PUBLIC DOCUMENT
93 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0017 ECM BioFilms Comparison 

of competing biodegradable 

plastics chart 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0018 Certificate of the 

Biodegradability of Plastic 

Products Made by SL Plastic 

Co. LTD that Incorporate the 

ECM MasterBatch Pellet 

Technology (Complaint 

Exhibit 4)

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 890, 

910 

CCX-0019 ECM Website Excerpt (PDF) 

(Complaint Exhibit 1a)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0020 ECM Website Excerpt 

(PDF) (Complaint Exhibit 

1b)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0021 ECM PowerPoint 

Presentation

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0022 ECM Interactive Website 

Capture

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0023 ECM Interactive Website 

Capture

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0024 ECM Website Capture 

(PDF)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0025 ECM Website Capture 

(PDF)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0028 NAD Case #5256: FP 

International - Biodegradable 

Super 8 Loosefill 

Enviornmentally Friendly 

Packaging 

Tr. 1636 Tr. 1636, 

1825 

CCX-0029 It's Not Easy Being Green . . 

. Webpage Printout from 

American Plastic 

Manufacturing Website 

apmbags.com

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0030 Printout of Webpages from 

American Plastic 

Manufacturing Website 

apmbags.com

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0031 Advertisement for American 

Plastics Manufacturing 

Biodegradable Bags

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
94 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0032 "Biodegradable" Bag for 

Organic Apples with ECM 

logo Distributed by CF Fresh 

Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1403

CCX-0033 Automated Packaging 

Systems, Inc.'s advertisement 

for EarthAware Films 

AirPouch

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0034 Automated Packaging 

Systems, Inc.'s Airpouch 

Sales & Marketing Alert

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0035 Automated Packaging 

Systems, Inc.'s EarthAware 

Biodegradable Film FAQs

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0036 Automated Packaging 

Systems, Inc.'s Guidelines 

for using the EarthAware 

Trademark on Bags and in 

Marketing Materials

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0036A Automated Packaging 

Systems, Inc.'s EarthAware 

Advertising for 

Biodegradable Low Density 

Polyethylene (ECLE)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0037 BioPVC Website 

biopvc.com (PDF)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0038 Buckeye Packaging 

Brochure for "Buckeye Bio" 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0039 Printout of Webpages on 

Zarma FLYtee from 

CHAMP Website 

champspikes.com

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1404

CCX-0040 Cosmetic Essence FAQs JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0041 Crayex Advertising for 

TerraGuard - Biodegradable 

Film and Bags

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0042 Crayex TerraGuard Ad -

Biodegradable what should I 

know?

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0043 D&W Finepack Advertising 

for Enviroware

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
95 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0044 Print of Down to Earth Bag 

with ECM Logo

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 1404

CCX-0046 Green Natura Bottle with 

ECM Website

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0047 SolTerre Shampoo Label 

with ECM logo

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0048 Product Information and 

Advertising for EcoSmart 

Plastics

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0049 Biodegradable Advertising 

for Epsilon Plastics, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0050 Biodegradable Advertising 

for Flambeau Products

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0051 Flexible Plastics Inc: 

Biodegradable Advertising 

for Film

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0052 Labels for FP International 

Inc.'s Biodegradable Black 

Liners 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0053 The Gilman Brother's 

Company Biodegradable 

Letter and Brochure

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0054 The Gilman Brother's 

Company: Biodegradable 

Label 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0055 The Gilman Brother's 

Company: Certification of 

Biodegradability

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0056 Island Plastics: Brochure 

with ECM website

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0057 Kappus Plastic: 

BioRigidBinyl 

Advertisement

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0058 Kappus Plastic: 

BioRigidBinyl Product 

Certification

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0059 Excerpt from Medical Arts 

Press advertising describing 

"Biodegradable Supply 

Bags"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0060 Excerpt from Medical Arts 

Press advertising describing 

"Biodegradable Supply 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
96 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

Bags"

CCX-0061 Parker Hannifin: 

Biodegradable Label 

(Umbra)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0062 Perfect Line, LLC (Perfect 

Promotional LLC): 

Certificate of 

Biodegradability

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0063 Polar Tech Advertising for 

Biodegradable Pouch

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0064 Polar Tech Advertising for 

Biodegradable Mailers

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0065 Umbra Family Circle 

Excerpt

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0066 Umbra EcoPlastics 

Advertisement

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0067 Winpak: Compliance 

Statement for 2011

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0068 Winpak: Compliance 

Statement for 2013

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0069 Plastic printed with 

Cheesecake Factory by 

Shields

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0070 Plastic bag printed with 

Sentry by Shields

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0071 Dragonberry produce bag by 

Shields

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0072 Viva Tierra produce bag with 

ECM logo

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0073 Island Plastic Bags yard bag JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0074 Island Plastic Bags bag 

BD85163T

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0075 Island Plastic Bags bag JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0076 Discover Credit Card labeled 

"Biodegradable"

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0077 Transilwrap Plastic Sheet JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0078 Buckeye Packaging bag for 

BEAUTY.COM

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
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Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0079 Eaton Biodegradable Zipper 

Advertisment

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0080 ASTM : D5338 -11 Standard 

Test Method (Standard Test 

Method for Determining 

Aerobic Biodegradation of 

Plastic Materials Under 

Controlled Composting 

Conditions Incorporating 

Thermophilic Temperatures)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0081 ASTM : D5210 - 92 

(Reapproved) Standard Test 

Method (Standard Test 

Method for Determining the 

Anaerobic Biodegradation of 

Plastic Materials in the 

Presence of Municipal Sewer 

Sludge)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0082 ASTM : D5338 - 98 

(Reappoved) Standard Test 

Method (Standard Test 

Method for Determining 

Aerobic Biodegradation of 

Plastic Materials Under 

Controlled Composting 

Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0083 ASTM : D5511 - 11 

Standard Test Method 

(Standard Test Method for 

Determining Anaerobic 

Biodegradation of Plastic 

Materials Under High-Solids 

Anaerobic-Digestion 

Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0084 ASTM : D5511 - 12 

Standard Test Method 

(Standard Test Method for 

Determining Anaerobic 

Biodegradation of Plastic 

Materials Under High-Solids 

Anaerobic-Digestion 

Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 443, 

1448, 

1450, 

1514 

PUBLIC DOCUMENT
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Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0085 ASTM : D5511 - 94 

Standard Test Method 

(Standard Test Method for 

Determining Anaerobic 

Biodegradation of Plastic 

Materials Under High-Solids 

Anaerobic Digestion 

Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0086 ASTM : D5526 - 94 

(Reapproved 2002) Standard 

Test Method (Standard Test 

Method for Determining 

Anaerobic Biodegradation of 

Plastic Materials Under 

Accelerated Landfill 

Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0087 ASTM : D5526 -12 Standard 

Test Method (Standard Test 

Method for Determining 

Anaerobic Biodegradation of 

Plastic Materials Under 

Accelerated Landfill 

Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

TR. 442

CCX-0088 ASTM : D6340 - 98 

Standard Test Method 

(Standard Test Methods for 

Determining Aerobic 

Biodegradation of 

Radiolabeled Plastic 

Materials in an Aqueous or 

Compost Environment)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0089 ASTM : D6776 - 02 

Standard Test Method 

(Standard Test Method for 

Determining Anaerobic 

Biodegradability of 

Radiolabeled Plastic 

Materials

in a Laboratory-Scale 

Simulated Landfill 

Environment)

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
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Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0090 ASTM : WIN 29802 

Standard Specification 

(Standard Specification for 

Aerobically Biodegradable 

Plastics in Soil Environment 

in the Temperate Zone)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0091 ASTM : D6400 - 12 

Standard Specification 

(Standard Specification for 

Labeling Plastics Designed 

to be Aerobically Composted 

in Municipal or Industrial 

Facilities)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0092 ASTM : D7475 - 11 

Standard Test Method 

(Standard Test Method for 

Determining Aerobic 

Degradation and Anaerobic 

Biodegradation of Plastic 

Materials Under Accelerated 

Bioreactor Landfill 

Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0093 ASTM : WIN WK41850 

Standard Test Method 

(Standard Test Method for 

Determining the Rates and 

Rate Constants for Plastics 

Biodegradation in an 

Anaerobic Laboratory 

Environment Under 

Accelerated Conditions)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0094 Report on Research 

Conducted by Synovate on 

Behalf of EcoLogic LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2512

CCX-0095 Report on Research 

Conducted by American 

Plastics Council 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0096 Photo of Enviroware Flex 

Straws 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0097 Photo of Enviroware 

Biodegradable Cutlery 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0098 Photo of Enviroware 

Biodegrable Foam Products 

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
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Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0099 Photo of Enviroware 

Biodegradable Straws 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0100 Photo of Green Natura 

Biodegradable 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0101 Photo of Three Straws 

Labeled Biodegradable and 

One Plastic Fork 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0102 Photo of Arbor BioMugs JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0103 Photo of SAFE 

Biodegradable Plastic Frisby 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0104 Photo of Generation e 

Garbage Bags 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0105 Photo of Plascon Films 

Biodegradable Products 

Innovation Statement 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0106 Photo of Plascon Films 

Statement with 9 Months to 

5 Years Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0107 Photo of Plascon Films 

Tubing, Bags, and 

Biodegradable Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0108 Photo of Plascon Films 

Statement with Certified 

Biodegradable Supplier 

Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0109 Photo of 100% 

Biodegradable Logo 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0110 Photo of Cobsbreads.com 

Biodegradable Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0111 Photo of ECM Biofilms Bag JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0112 Photo of Cobs Bread 

Biodegradable Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0113 Photo of Generation e 100% 

Biodegradable Recyclable 

Bag 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0114 Photo of ECM Biofilms Bag JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0115 Photo of I Hardt Foodies 

Biodegrable Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0116 Photo of Biodegradable 

Clear Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
101 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0117 Photo of ECM 

Biodegradable 100% 

Recyclable Logo on Clear 

Bag 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0118 Photo of Sunlight Detergent 

Bag with ECM Logo 

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 801

CCX-0119 Photo of 100% 

Biodegradable Logo on Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0120 Photo of Sage's Apples Bag 

with 100% Biodegradable 

Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0121 Photo of Bag with ECOFriendly 100% Reusable 

ECM Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0122 Photo of ECM 

Biodegradable 100% 

Recyclable Logo on Bag 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0123 Photo of ECM 

Biodegradable Claim on 

Triangle Highlighter 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0124 Photo of ECM 

Biodegradable Claim on Pen 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0125 Photo of Elsinore Valley 

Municipal Water District 

with BIOPRO Biodegradable 

Plastic Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0126 Photo of BIORIGHT 

Drimark Highlighter 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0127 Photo of Sanctum and 

Organic Spa Bottles 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0128 Photo of Two Organic Spa 

Bottles with 100% 

Biodegradable Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0129 Photo of Three Bottles with 

ECM Biodegradable Claim 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0130 Photo of ECM Biodegrable 

Plastic Film 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0131 Photo of Carquest, Canyon, 

EcoChoice Bottles 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0132 Photo of EcoChoice Bottle JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0133 Photo of EcoChoice Bottle 

with ASTM D5511-02 

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
102 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

Reference 

CCX-0134 Photo of ECM Additive 

Black Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0135 Photo of Trim Tray JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0136 Photo of Champ Golf Tee 

Packaging 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0137 Photo of BioMugs Card with 

Biodegrable in 1-5 Years 

Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0138 Photo of NatureTex Ultra 

Kids Shoe

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0139 Photo of Go! Zero Sole JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0140 Photo of AAkron Line 

Sample 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0141 Photo of Hotel and 

Conference Center Card with 

18 Months to 5 Years 

Biodegradable Claim 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0142 Photo of Earthware Air 

Pouch 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0143 Photo of ECM 

Biodegradable Logo on Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0144 Photo of Biodegradable 

Packaging Logo on Made in 

Canada Bag 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0145 Photo of ECM 

Biodegradable Logo on Blue 

Packaging

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0146 Photo of 100% 

Biodegradable Logo on Eden 

Restaurant Bag 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0147 Photo of Biodegradable Bag 

with ECM Logo

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0148 Photo of Oregon Tilth Bag JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0149 Photo of Oregon Tilth Bag JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0150 Photo of For Life! Bag JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
103 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0151 Photo of100% Biodegradable 

Logo on White Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0152 Article Published by Crain's 

Cleveland Business entitled 

Head of ECM BioFilms Says 

FTC Has 'Sullied Our Name'

by J. Carroll 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0153 Final Report: Compostability 

Testing of Polypropylene 

and Polyethylene Plastic 

Blended with "MasterBatch 

Pellets" Biodegradation 

Enhancement Additive, 

conducted by 3M 

Environmental Laboratory 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0154 3M General Project Outline JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0155 Excerpt of 3M data -

Screenshots 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0156 Compilation of emails 

involving various O.W.S. 

Inc. employees and J. Young 

at American Profol regarding 

Update 7 HSAD-Test

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0157 Covidien O.W.S. Inc. Final 

Report - High Solids 

Anaerobic Digestion 

(HSAD) Test 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 859

CCX-0158 Covidien Powerpoint 

summarizing O.W.S. Inc. 

testing on ECM plastic

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0159 O.W.S. Final Report -

Biodegradation Testing 

Aerobic Biodegradation 

Under Controlled 

Composting Conditions for 

40 Gal Trash Bags Study 

PFR-5

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 196, 

198, 199 

CCX-0160 Advanced Materials Center, 

Inc.: Lab Report

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
104 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0161 O.W.S. Inc. Final Report -

Biodegradation Testing 

Aerobic Biodegradation 

Under Controlled 

Composting Conditions for 

5% Load Black Film 5% 

ECM Load Natural Film 

Study PFR-1

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0162 O.W.S. Inc: Final Report -

Biodegradation Testing 

Aerobic Biodegradation 

Under Controlled 

Composting Conditions for 

50% Load ECM Pellets, 5% 

Load ECM Film, and 10% 

Load ECM Film Study PFR2

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0163 Masternet LTD: High Solids

Anaerobic Digestion of 

Plastic Netting Study PH-1

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0164 Article entitled 

Biodegradability of 

Conventional and Bio-Based 

Plastics and Natural Fiber 

Composites During 

Composting, Anaerobic 

Digestion and Long-Term 

Soil Incubation by Eddie F. 

Gomez and Frederick C. 

Michel Jr., in the Journal of 

Polymer Degradation and 

Stability

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0165 Email from T. Iwata (Editor, 

Polymer Degradation and 

Stability) to F. Michel (Ohio 

State University) Regarding 

Your Submission PDST-D13-00655

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0166 Manuscript: Biodegradability 

of Conventional and BioBased Plastics and Natural 

Fiber Composites During 

Composting, Anaerobic 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
105 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

Digestion, and Long-Term 

Soil Incubation 

CCX-0167 PDST-D-13-00655: 

Biodegradability of 

Conventional and Bio-Based 

Plastics and Natural Fiber 

Composites During 

Composting, Anaerobic 

Digestion, and Long-Term 

Soil Incubation 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0168 T. Iwata Faculty Bio from 

University of Tokyo Website 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0169 O.W.S. Final Report for 

Gary Plastic Packaging 

Corporation: Review of 

Several Documents, Reports, 

and Statements on 

Biodegradation ECM 

Masterbatch Pellets Study 

GLH-2 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0170 O.W.S. Final Report: 

Aerobic Biodegradation 

Under Controlled 

Composting Conditions of 

Biodegradable Plastic Bag 

and Normal Plastic Bag 

Study BRB-1

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0171 O.W.S. Final Report: High 

Solids Anaerobic 

Degradation Test (HSAD) of 

Film Sample Study SMG-1/1 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0172 Email from G. Yazdani 

(Poly-Flex, Inc.) to G. Hall 

Regarding ECM Biofilms 

Reports

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0173 Advanced Material Centers, 

Inc. Laboratory Report for 

Poly-America, L.P. Project # 

09P1145 - ASTM D

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
106 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0174 Project Report #1870 for FP 

International: Biodegradation 

Testing of a Loose Fill 

Product - Prepared by 

Stevens Ecology 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0175 Project Report #2028 for FP 

International: Biodegradation 

Testing of a Plastic Film 

Product - Prepared by 

Stevens Ecology 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0176 Project Report #2028-

Revision A for FP 

International: Biodegradation 

Testing of a Plastic Film 

Product - Prepared by 

Stevens Ecology 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0182 Email exchange involving 

ECM employees and Italcom 

regarding "Critical Updates"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0183 Modification Agreeement 

between ECM and Italcom 

S.r.l.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0184 Letters from Porter Wright to 

R. Sinclair regarding Italcom 

S.r.L. emergency request for 

information relating to ECM 

MasterBatch Pellets and 

resolution of outstanding 

business issues

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1653

CCX-0188 Executed Business Record 

Declaration - SPEED France 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0189 Email from Speed France to 

J. Cohen (French email 

translated)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0190 Email from J. Le Roux to C. 

Radtke regarding ECM 

Biofilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products 

(German email translated)

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
107 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0191 Email exchange involving R. 

Sinclair, S. Duval (Speed 

France), J. Le Roux, C. 

Radtke

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1664

CCX-0192 Translation Certification: 

Affidavit of Accuracy 

regarding French translations

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1671, 

1825 

CCX-0193 Translation Certification: 

Affidavit of Accuracy 

regarding German 

translations

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0194 Translation Certification: 

Affidavit of Accuracy 

regarding Italian translations

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1649, 

1825 

CCX-0195 World Intellectual Property 

Organization (WIPO) Patent 

Application WO 

2013/057748 A1 

(Authenticated)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0196 Database entry summarizing 

communications with 

Colplast SRL

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1666

CCX-0197 Certificate of the 

Biodegradability of Plastic 

Products Made by Colplast 

SRL 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0198 Email from F. Berton 

(Colplast) to R. Sinclair 

regarding ECM Biofilms' 

Additives for Manufacturing 

Biodegradable Plastic 

Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0199 Email from J. Sweigert to R. 

Sinclair regarding Proposed 

email to Francesco Berton of 

Colplast

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0200 Email from R. Sinclair to F. 

Berton (Colplast) regarding 

ECM Biofilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
108 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0201 Email from S. McGregor 

(Shields) to R. Sinclair 

regarding Important news 

about Italcom SRl and ECM 

Biofilms

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0202 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding ECM in 

Italy - request of copy of test 

of biodegradability for 

poliammide

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0203 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding ECM in 

Italy - report test of Colplast 

- formal notice received from 

Luon court France

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0204 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding Test from 

ECM Biofilms' - legal action 

colplast/speed France

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0205 Email from K. Marineau to J. 

Sweigert regarding Test from 

ECM Biofilms' - legal action 

colplast/speed France

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0206 Email from R. Sinclair to C. 

Busato (Arcopolimeri SRL) 

regarding ECM in Italy - 

report test of Colplast - 

formal notice received from 

Lyon court France

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1670

CCX-0207 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding Speed 

France / Colplast 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0208 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding Test from 

ECM Biofilms' - legal action 

colplast/speed France

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
109 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0209 Email from T. Braithwaite 

(Automated Packaging 

Systems) to R. Sinclair 

regarding Eye Irritation

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0210 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding Request 

for update for legal action 

Colplast/SpeedFrance

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0211 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding Request 

for update for legal action 

Colplast/SpeedFrance

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0212 Email from K. Marineau to J. 

Sweigert regarding Test from 

ECM Biofilms' - legal action 

colplast/speed France

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0213 Email from R. Sinclair to C. 

Busato (Arcopolimeri SRL) 

regarding ECM in Italy - 

report test of Colplast - 

formal notice received from 

Lyon court France

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0214 Email from R. Sinclair to C. 

Busato (Arcopolimeri SRL) 

regarding ECM in Italy - 

report test of Colplast - 

formal notice received from 

Lyon court France

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0215 Email from R. Sinclair to C. 

Busato (Arcopolimeri SRL) 

regarding request of update 

for legal action 

Colplast/SpeedFrance

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0216 Email from R. Sinclair to C. 

Busato (Arcopolimeri SRL) 

regarding request of update 

for legal action 

Colplast/SpeedFrance

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
110 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0217 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding ECM 

Biofilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0218 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding ECM 

Biofilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0219 Email from C. Busato 

(Arcopolimeri SRL) to R. 

Sinclair regarding ECM 

Biofilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0220 Email from S. Duval to 

Biodeg regarding 

Informations

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0221 Email from R. Sinclair to T. 

Nealis regarding Speed 

France Order

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0223 Email from R. Sinclair to T. 

Nealis regarding Speed 

France Order

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0224 Letter from Lamy Associates 

enclosing Writ of Summons 

for Colplast SRL

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0225 Registered Letter from E. 

Baroin (on behalf of Speed 

France) to F. Berton with 

acknowledegement of receipt

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0226 Letter from R. Conte 

regarding Fradulent 

Communications by 

Ecologia Applicata 

srl/dr.Paolo Broglio

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
111 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0227 Email from M. Tweedle 

(Sijovy) to R. Sinclair 

regarding Biodegradability 

of Plastics Materials Test

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0228 Conference call agenda and 

minutes for call between 

Colplast and ECM

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0229 Sample of ECM 

MasterBatch pellets

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0230 Memo from B. Gohill at 

Covidien regarding Scope 

Biodegradable Additive 

project/ECM Biofilms

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0231 Letter from Federal Trade 

Commission staff to Robert 

Sinclair at ECM regarding 

inquiry into ECM's 

marketing and promoting of 

additives

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0232 ECM comments (No. 

P084200) regarding FTC's 

Green Packaging Workshop

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0233 White paper entitled "The 

Effect of the 

Biodegradability of Plastics 

Made with ECM on Landfills 

and Greenhouse Gases"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0234 ECM International Customer 

List (with revenue 

information) for 2009-2013

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0235 ECM customer list JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0236 Powerpoint presentation 

entitled "Long-Term 

Biodegradation Testing of 

ECM - amended Plastics" by 

Timothy R. Barber at 

ENVIRON International 

Corp.

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2091, 

2093, 

2138 

CCX-0237 Agendas for prospective 

customers

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
112 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0238 Letter from R. Sinclair to H. 

Peckhaus at JonPac 

Manufacturing regarding 

Aqua-Biodegradation 

Certification for Plastic 

Products Manufactured with 

ECM MasterBatch Pellets as 

an Additive

Tr. 976 Tr. 976, 

977, 982 

CCX-0239 Letter from Office of the 

District Attorney, County of 

Solano, CA to Bart E. 

Greenhut (PetPro Products, 

Inc.) regarding Sales of 

Dispoz-A-Scoop Violate 

California Public Resources 

Code

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0240 Curriculum Vitae of 

Frederick C. Michel, Jr. 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0241 License Agreement between 

ECM Biofilms, Inc. and 

Microtech Research, Inc. 

with addendum

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0242 Marietta presentation entitled 

"Leaders in Sustainability"

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0243 Curriculum Vitae of Todd 

Owens Stevens

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0244 Stevens Ecology Overview JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0245 Winpak Films, Inc. 

Presentation entitled "ECM 

Biofilms Biodegradable 

Additive"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0246 Email to F. Santana from B. 

Jay FW: Inquiry with 11 

Attachments

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0246A Attachment 1-

Biodegradation Cert_Sample 

070116 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0246B Attachment 2-

Biodegradation Mechanism 

051028 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0246C Attachment 3-Customer 

Certificate 070821

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
113 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0246D Attachment 4-ECM Flyer 

070429

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0246E Attachment 5-ECM_General 

Presentation 070531 PPT

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0246F Attachment 6-Life 

Expectancy 070116 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0246G Attachment 7-MSDS 

ECM6_0701 070710 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0246H Attachment 8-Pricing Sheet 

ECM6_0701_D 070412 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0246I Attachment 9-Pricing Sheet 

ECM6_0701_G 070321 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0246J Attachment 10-TDS 

ECM6_0701 0703 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0246K Attachment 11-

Manufacturers for Majestic 

080604 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0247 Email to F. Santana from D. 

Hong regarding Anaerobic 

Claim, Logo 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0248 Email to F. Santana, R. 

Sinclair, D. Hong, 

L.Yamauchi from A. Poje 

regarding Down to Earth: 

Draft News Release Re. 

Switch to Biodegradable 

Bags 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0249 Email to F. Santana from S. 

McCarthy regarding 

Compostable Plastic Bag 

with 4 Attachments

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0249A Attachment 1-APR and 

NAPCOR degradables 

release final[1] (doc)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0249B Attachment 2-APR 

Degradable Additives 

Statement[1] (doc)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0249C Attachment 3-FTC Dyne 

Letter Sept 09[1]

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0249D Attachment 4-Narayan 

comments on ECM claims[1]

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
114 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0250 Email to F. Santana and R. 

Sinclair from A. Poje 

regarding ECM Claims for 

Biodegrability Have Been 

Challenged 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0251 Email to F. Santana from A. 

Poje regarding ECM Claims 

for Biodegradability Have 

Been Challenged with 2 

Attachments 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0251A Attachment 1-Narayan 

Summary S 081112 (doc)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0251B Attachment 2-Mojo 

Summary 081111 (doc)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0252 Email to F. Santana from A. 

Poje regarding Help!

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0253 Email to F. Santana from A. 

Poje regarding ECM Claims 

for Biodegradability Have 

Been Challenged in Hawaii 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1677, 

1678 

CCX-0254 Email to G. Kaynor from B. 

Finnestad regarding 

Standards for Test Methods 

for Biodegrading Plastic 

Material with 1 Attachment 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0255 Email to B. Gohill from B. 

Finnestad regarding 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0256 Email to G. Kaynor and B. 

Finnestad from B. Gohill 

Subject: ECM Biofilms 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0257 Email to C. Osterberg from 

C. Stempka Subject: 

Biodegradable Certification 

with 1 Attachment

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0257A Attachment 1-ECM 

Biodegradable Certificate 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0258 Email to C. Melville from C. 

Stempka Subject: 

Biodegradable Zipper 

Information with 3 

Attachments

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0258A Attachment 1-PM 7171 BDC 

Q3387 

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
115 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0258B Attachment 2-ECM 

Biodegradable Certificate 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0258C Attachment 3-ECM Flyer 

070429

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0259 Email to D. Rucker from T. 

Nealis Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

1 Attachment

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0259A Attachment 1-ECM Flyer 

100414

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0260 Email to Flexible Plastics Inc 

from City Clerk regarding 

Bags 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0261 Email from D. Dancks 

regarding where can I call 

you with 2 Attachments 

(Redacted)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0261A Attachment 1-

Biodegradation Cert_Fortune 

Plastics 060726

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0261B Attachment 2-

FPIEnviroplasBiograde2010

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0262 Email to D. Rucker from T. 

Nealis FW: ECM BioFilms 

Pics 1 of 10 with 2 

Attachments 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0262A Attachment 1-Wild Finch 

Bird Seed jpg

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0262B Attachment 2-Earth Aware 

Air Pack jpg

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0263 Email to kevin@patriotsigns 

and 

dunderwood@putnamplastic

sinc Subject: EFEI 

Information on our 

"Biodegradeable" Additive

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0264 Email to R. Decaire from M. 

Ross regarding ECM 

BioFilms'Test Results

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
116 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0265 Email to 

scimmnin@danafilms from 

R. Brunell regarding 

Biodegradability Certificate

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0266 Email to D. Rucker from T. 

Nealis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

5 Attachments 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0266A Attachment 1- ECM vs 

Alternatives 080617

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0266B Attachment 2-

Biodegradation Cert_Sample 

070116

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0266C Attachment 3-ECM Flyer 

070429 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0266D Attachment 4-Time Elapse 

biodegradation pictures PPT

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0266E Attachment 5-McLaren 

Ecological Assessment 

060526 

Tr. 2022 Tr. 187, 

189, 2013, 

2016, 

2020, 

2021, 

2022, 

2071, 

2082, 

2117, 

2123

CCX-0267 Email to D. Rucker from T. 

Nealis regarding ECM 

BioFilms' Basic Info with 12 

Attachments 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0267A Attachment 1-TDS 

ECM6_0701 0806 (2)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0267B Attachment 2-

Biodegradation Cert Sample 

070116

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0267C Email regarding ECM 

BioFilms' Basic Info 

Attachment 3-

Biodegradation Mechanism 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
117 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

051028

CCX-0267D Attachment 4-Customer 

Certificate 070821 (doc)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0267E Email regarding ECM 

BioFilms' Basic Info 

Attachment 5-ECM Flyer 

070429

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0267F Attachment 6-ECM 

Gen_Explanation 081203 (2)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0267G Attachment 7-ECM 

Gen_Explanation 081203a 

(3)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0267H Attachment 8-ECM vs 

Alternative 080617

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0267I Attachment 9-Life 

Expectancy 070116

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0267J Attachment 10-MSDS 

ECM6_0701 070710

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0267K Attachment 11-Pricing Sheet 

ECM6_0701_D 070412 (3)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0267L Attachment 12-Pricing Sheet 

ECM6_0701_G 070321 (2)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0268 Email to D. Rucker from T. 

Nealis regarding ECM 

BioFilms' Independent Tet 

Results with 2 Attachments 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0268A Attachment 1-McLaren 

Ecological Assessment 

060526

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0268B Attachment 2-Litt_Morton 

report 000612b

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0269 Email to D. Rucker from T. 

Nealis regarding ECM 

BioFilms with 1 Attachment 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 925

CCX-0269A Attachment 1-MSDS 

ECM6_0701 070710

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0270 Email to D. Rucker from T. 

Nealis regarding Sample 

Testing with 2 Attachments 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
118 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0270A Attachment 1-

Biodegradation Cert_Sample 

070116

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0270B Attachment 2-Customer 

Certificate 070821 (doc)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271 Email to M. Bissett from A. 

Mithal FW: Biodegradable 

Additive with 10 

Attachments 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0271A Attachment 1-

Biodegradation_Cert_Sampl

e 070116

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0271B Attachment 2-

Biodegradation Mechanism 

051028

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0271C Attachment 3-Customer 

Certificate 070821.doc

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271D Attachment 4-ECM Flyer 

070429

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271E Attachment 5-ECM_General 

Presentation 070531 PPT

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271F Attachment 6-Life 

Expectancy 070116

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271G Attachment 7-MSDS 

ECM6_0701 070710

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271H Attachment 8-Pricing Sheet 

ECM6_0701_D 070412

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271I Attachment 9-Pricing Sheet 

ECM6_0701_G 070321

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0271J Attachment 10-TDS 

ECM6_0701 0703

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0272 Email to A. Madonna and C. 

Heverly from A. Mithal FW: 

Certificate of Biodegradation 

with 1 Attachment 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0272A Attachment 1-

Biodegradation 

Cert_Waddington North 

America_WNA 080625

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0273 Email to R. Sinclair from T. 

Albert regarding Ecorite 

Imaging accused of GREEN 

WASHING.

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
119 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0274 Email to charles@g3s from 

M. Howard regarding 

CONFIDENTIAL - Copy of 

Certificates 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0274A Attachment 1-ECM Life 

Expectancy 051028.pdf

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0274B Attachment 2-ECM 

BioFilms Biodegradation 

Mechanism 051028.pdf

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0274C Attachment 3-

Cert.ofBiodegrad. 11-09.pdf

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0275 Email to M. LaFauci from 

A.Poje regarding re additive

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0276 Email to G. Milham from T. 

Nealis regarding Freight 

Quote

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0277 Email to T. Nealis from G. 

Milham regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0278 Email to D. Rucker from T. 

Nealis regarding ECM 

BioFilms' Basic Info 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0279 Email to T. Nealis from D. 

Rucker regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0280 Email to D. Galloway from 

R. Sinclair regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable* Plastic 

Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 28, 

974, 975 

CCX-0281 Email to M. Svoboda from 

T. Nealis FW: New ECM 

BioFilms Web Inquiry with 1 

Attachment (Attachment not 

provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
120 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0282 Email to T. Nealis from 

Sylvia AirBag regarding 

Bio-films questions from 

AIRBAG

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0283 Email to R. Sinclair from D. 

Mattair regarding 

Biodegradable Materical 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0284 Email to J. Michalakis from 

T. Nealis regarding FFT 

Update with 1 Attachment 

(Attachment not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0285 Email to T. Nealis from J. 

Michalakis Subject FFT 

Update 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0286 Email to T. Nealis from J. 

Michalakis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable* Plastic 

Packaging and

Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0287 Email to T. Nealis from J. 

Michalakis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and

Products with 1 Attachment 

(Attachment not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0288 Email to T. Adante from T. 

Nealis regarding ASTM 

Tests 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0289 Email to R. Sinclair from K. 

Rockhill regarding Various 

Test Docs 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0290 Email to A. Poje from T. 

Brooks regarding Thank you 

for posting on Umbra! 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0291 Email to A. Poje from S. 

Vance regarding Question on 

Viability of Biodegradable 

Additives 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
121 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0292 Email to F. Santana and R. 

Sinclair from A. Poje 

regarding ECM Claims for 

Biodegrability Have Been 

Challenged 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1675

CCX-0293 Email to T. Nealis from R. 

Thompson regarding 

Michigan State Univ. 

Contact 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0294 Email to R. Sinclair from D. 

Hong regarding FTC

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0295 Email to P. Hartman from R. 

Sinclair regarding ASTM 

Landfill Standard 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1696, 

1697 

CCX-0296 Email to '???' from T. Nealis 

regarding Inquiry for 

MasterBatch Pellets with 3 

Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0297 Email to S. McGregor from 

R. Sinclair regarding Final 

reports SMG-1 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0298 Email to 

RANDYBAGMAN@aol 

from R. Sinclair regarding 

Master Batch additive testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0299 Email to R. Ikin from A. 

Poje regarding 

Biodegradability testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0300 Email to S. Williams from T. 

Nealis FW: ECM BioFilms 

Information 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0301 Email to T. Nealis from J. 

Barbieri regarding RV: 

Samples 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0302 Email to T. Nealis from D. 

Rucker regarding Sample 

Testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0303 Email to sjoseph1@mmm 

from T. Nealis regarding 

Update 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
122 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0304 Email to R. Sinclair from S. 

McGregor regarding ASTM 

5511 duration 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0305 Email to R. Sinclair from L. 

D'Angelo FW: A Holiday 

Message from ECM 

BioFilms with 1 Attachment 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0306 Email to D. Galoob from R. 

Sinclair Subject: Testing 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0307 Email to F. Santana from A. 

Poje regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

1 Attachment (Attachment 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1673

CCX-0308 Email to colin@cfmachinery 

from R. Sinclair regarding 

Modern Plastics - close to 

first success

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0309 Email to C. Farrant from R. 

Sinclair regarding Modern 

with 5 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0310 Email to A. Poje from 

arcinc@arc-inc regarding 

Radiolabeled Polymer 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0311 Email to A. Poje from M. 

Barlaz regarding ASTM D 

6776 Standard Test Method 

for Determining Anaerobic 

Biodegradability of 

Radiolabeled Plastic 

Materials in a LaboratoryScale Simulated Landfill 

Environment

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0312 Email to A. Poje from R. 

Covington regarding ECM 

BioFilms - Radiolabeled 

Polymer

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
123 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0313 Email to A. Poje from M. 

Barlaz regarding [Fwd: 

regarding Polymer Synthesis 

Opportunity]

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0314 Email to A. Poje from L. 

Barnes regarding Quote # 

11130945

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0315 Email to Bill H from R. 

Sinclair regarding ECM 

nomenclature 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0316 Email to dtapia@xynyth 

from T. Nealis Subject ECM 

BioFilms Logo

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0317 Email to T. Nealis from G. 

Shah regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and

Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0319 Email to 'POLYC' from T. 

Nealis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and

Products with 1 Attachment 

(Attachment not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0320 Email to A. Grozdeva from 

T. Nealis regarding ECM 

BioFilms' Additives For 

Manufacturing 

Biodegradable Plastic 

Packaging and

Products with 1 Attachment 

(Attachment not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0321 Email to P. Camilleri from T. 

Nealis regarding 

Biodegradable testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
124 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0322 Email to 'Mike AirBag' from 

T. Nealis regarding FW: 

ECM BioFilms' Additives 

for Manufacturing 

Biodegradable Plastic 

Packaging and

Products with 4 Attachments 

(Attachments not provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0323 Email to M. Pollard from R. 

Sinclair regarding ECM 

additive.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0324 Email to G. Hellinger from 

R. Sinclair RE; A Holiday 

Message from ECM 

BioFilms

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0325 Email to B. Hemming and S. 

Blamey from B. James FW: 

KLH- ECM Pellets with 3 

Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0326 Email to 'Adam' from R. 

Sinclair regarding More 

information on 

Biodegradable Grocery Bags 

with 1 Attachment 

(Attachment not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0327 Email to R. Sinclair from T. 

Brooks FW: Bio Claim on 

plastics---URGENT

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0328 Email to R. Sinclair from S. 

Mckye FW: Emailing: 

BIOflexTM_WhitePaper 

with 4 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0329 Email to 

dowin@sunnyamericas from 

T. Nealis Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
125 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0330 Email to primaplastic@email 

from T. Nealis regarding 

BIODEGRADABLE test 

result for P-Life

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0331 Email to P. Barutis from R. 

Sinclair regarding New 

ASTM for landfill 

biodegradation

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0332 Email to T. Nealis from N. 

Kirschner regarding ECM 

BioFilms Information 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0333 Email to T. Nealis from J. 

Richards regarding ECM 

BioFilms Third Party 

Independent Test Results

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0334 Email to T. Adante from T. 

Nealis Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0335 Email to sjoseph1@mmm 

from T. Nealis Subject: 

regarding ECM BioFilms' 

Additives for Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0336 Email to 'Giovanna Cruz' 

from T. Nealis Subject: Test 

- ECM BioFilms 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0337 Email to E. Halter from T. 

Nealis Subject: ECM 

BioFilms 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0338 Email to 

dennisc@preformsolutions 

from T. Nealis Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
126 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0339 Email to M. Tschantz from 

T. Nealis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and

Products with 3 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0340 Email to E. Dover-Roll from 

T. Nealis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable* Plastic 

Packaging and

Products with 2 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0341 Email Compilation from 

Customer Service to Various 

Customers Regarding 

Certificate of Biodegradation

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0342 Email to S. Shin from T. 

Nealis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0343 Email to Customer Service 

from M. Graham regarding 

QVC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0344 Email to Customer Service 

from R. Anderson regarding 

Certificate of Biodegradation 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0345 Email to T. Nealis from D. 

DeChynne regarding 

CERTIFICATE OF 

BIODEGRABILITY FOR 

ANDERSON DIE &

MANUFACTURING 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0346 Email to 

david@copolinternational 

from Customer Service 

Subject: Certificate of 

Biodegradation with 1 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
127 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

Attachment (Attachment not 

provided) 

CCX-0347 Email to 

italcom.amministrazione@g

mail from Customer Service 

Subject: Certificate of 

Biodegradation with 2 

Attachments (Attachments 

not provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0348 Email to 

scottlocks@polyfirst from 

Customer Service Subject: 

Certificate of Biodegradation 

with 1 Attachment 

(Attachment not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0349 Email to T. Nealis from G. 

Loyola regarding Consult 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0350 Email to V. Saab from A. 

Poje regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

6 Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0351 Email to J. Sweigert from R. 

Sinclair FW: Biodegradable 

Certification with 1 

Attachment (Attachment not 

provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0352 Email to T. Nealis from A. 

Meinerts regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0353 Email to A. Poje from J. 

Heinrich Subject: Request 

your logo for client 

newsletter...

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
128 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0354 Email to J. Sweigert from J. 

Cohen regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0355 Email to R. Sinclair from R. 

Hurwitz regarding ECM 

Biodegradable Logo 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0356 Email to J. Sweigert from R. 

Sinclair FW: LOGO

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0357 Email to 'Dwight de Leon' 

from J. Sweigert regarding 

LOGO with 3 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0358 Email to V. Power from J. 

Sweigert Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

5 Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0359 Email to 

andrea@biostarfilms from J. 

Sweigert Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

4 Attachments (Attachments 

not provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0361 Email to C. Crowley from T. 

Nealis Subject: regarding 

ECM Additive - update with 

1 Attachment (Attachment 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0362 Email to J. Zeiger from R. 

Sinclair regarding ECM 

Logo Question with 1 

Attachment 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
129 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0363 Email to R. Sinclair from K. 

Lau regarding about 

customer certificate 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0364 Email to K. Lau from R. 

Sinclair FW: about customer 

certificate with 3 

Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0365 Email to P. Fiori from J. 

Sweigert FW: request with 5 

Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0366 Email to M. Cenicola from 

R. Sinclair regarding Follow 

up - and a few questions with 

5 Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0367 Email to S. Desai from T. 

Nealis regarding ECM 

BioFilms Web Contact Form 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0368 Email to T. Adante from T. 

Nealis regarding ECM Flyer 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0369 Email to R. Sinclair from T. 

Wu regarding Certificate 

with 3 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0370 Email to 

bewasko@berplastics from 

T. Nealis Subject: ECM 

BioFilms' Increased 

Purchases with 2 

Attachments (Attachments 

not provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0371 Email to 'POLYC' from T. 

Nealis regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and

Products with 5 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
130 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0372 Email to james@itbplastics 

from A. Michaelides Subject: 

Product Benefits of 

EarthCure Additive with 1 

Attachment (Attachment not 

provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0373 Email to A. Zoller from T. 

Nealis Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable* Packaging 

and Products (1of 

2) with 11 Attachments 

(Attachments not provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0374 Email to 

jasmine@henglongplastic 

from T. Nealis Subject ECM 

BioFilms 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0375 Email to R. Sinclair from P. 

Hartman Subject: Testing 

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 1625

CCX-0376 Email to R. Sinclair from P. 

Hartman Subject: Tests 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0377 Email to A. Poje from P. 

Hartman regarding ECM 

BioFilms' #4

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0378 Email to R. Sinclair from C. 

Rempe (no subject)

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0379 Email to N. Shenoy from T. 

Nealis regarding Unicoms 

with 9 Attachments 

(Attachments not provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0380 Email to mintosabu@ymail 

from T. Nealis regarding 

New ECM BioFilms Web 

Inquiry with 11 Attachments 

(Attachments not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0381 Email to R. Sinclair from A. 

Poje Subject: FTC 

Complaints - Kmart & 

Tender

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0382 Email to T. Nealis from R. 

Thompson FW: ECM BIO 

RESIN 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
131 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0383 Email to T. Nealis from M. 

Brosch regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0384 Email to T. Nealis from R. 

Thompson regarding ECM 

Test Report 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0385 Email to T. Nealis from 

sjoseph1@mmm regarding 

ECM BioFilms' Additives 

for Manufacturing 

Biodegradable Plastic 

Packaging and Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0386 Email to T. Nealis from D. 

Hojlo Subject: Dell Said NO 

& ASTM 6400 Guideline 

Must be Met with 2 

Attachments (Attachments 

not provided)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0387 Email to theiden@pkgprod 

from T. Nealis FW: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable* Plastic 

Packaging and

Products with 3 Attachments 

(Attachments not provided) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0388 Database entry summarizing 

communications with 

Covidien

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0389 Database entry summarizing 

communications with Down 

to Earth All Vegetarian

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0390 Database entry summarizing 

communications with 

FabriTRAK Systems, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0391 Database entry summarizing 

communications with Gary 

Plastics

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
132 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0392 Database entry summarizing 

communications with 

Geneva Watch Group

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 27, 

920 

CCX-0393 Database entry summarizing 

communications with Green 

Packaging

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0394 Database entry summarizing 

communications with 

Hercules Poly

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0395 Database entry summarizing 

communications with IMEX 

Vinyl Packaging 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0396 Database entry summarizing 

communications with 

JohnPac Manufacturing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0397 Database entry summarizing 

communications with 

Kessler Hayden

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0398 Database entry summarizing 

communications with 

Notemarks LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0399 Database entry summarizing 

communications with Nu 

Methods Plastics, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0400 Database entry summarizing 

communications with 

PakSher

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 929

CCX-0401 Database entry summarizing 

communications with 

Palmetto Industries 

International Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0402 Database entry summarizing 

communications with PolyAmerica L.P

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0403 Database entry summarizing 

communications with 

STMicroelectronics and 

Storm Innovations Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0404 Database entry summarizing 

communications with 

ThermoPod

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
133 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0405 Database entry summarizing 

communications with 

TreeWell Technologies, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0406 Database entry summarizing 

communications with Tyco 

Electronics-Technology 

Group

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0407 Database entry summarizing 

communications with Umbra 

LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0408 Database entry summarizing 

communications with 

American Plastic Mfg. Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0409 Database entry summarizing 

communications with Be 

satori LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0410 Database entry summarizing 

communications with BioTec Environmental, LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0411 Database entry summarizing 

communications with 

Bloomer Plastics, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0412 Database entry summarizing 

communications with 

Command Packaging

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0413 Database entry summarizing 

communications with 

EcoSmart Plastics

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1699

CCX-0414 Database entry summarizing 

communications with 

Flexible Plastics, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0415 Database entry summarizing 

communications with 

Gilman Brothers

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0416 Database entry summarizing 

communications with Hi-De 

Liners, LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0417 Database entry summarizing 

communications with Myers 

Group 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0418 Database entry summarizing 

communications with 

PolyFusion LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
134 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0419 Database entry summarizing 

communications with Sealed 

air 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0420 Database entry summarizing 

communications with 

Automated Packaging 

Systems (Excerpt)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0421 Database entry summarizing 

communications with Bemis 

Group

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0422 Database entry summarizing 

communications with Shields 

Bag and Printing Company

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0423 Database entry summarizing 

communications with 

Westchem Group

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0424 Database entry summarizing 

communications with 

Americover 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0425 Database entry summarizing 

communications with AmSource LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0426 Database entry summarizing 

communications with Behr 

Industries Corporation

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0427 Database entry summarizing 

communications with 

Cleanwaste

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0428 Database entry summarizing 

communications with 

Colonial Bag Corp.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0429 Database entry summarizing 

communications with 

Contempo Card Company

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0432 Email from T. Barber 

(Environ) to L. Heise 

(Environ); S. Hall (Environ) 

Regarding test end

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0436 Table - Values for Control 

and BioPVC Over Time

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0437 Email from T. Barber 

(Environ) to S. Hall 

(Environ) Regarding bioPVC 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2135, 

2136 

PUBLIC DOCUMENT
135 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

Chlorides - Good News

CCX-0440 BER Plastics, Inc. 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0441 BER Plastics, Inc. 

Certification of Compliance 

and Records

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0442 BER Plastics, Inc., ECM 

BioFilm Customers

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0443 Article entitled Additive 

Masterbatches Make 

Polyolefins Degrade from 

Plastics Technology Website 

ptonline.com

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0449 Email from R. Sinclair 

(ECM) to B. Ewasko (BER 

Plastics) Regarding 

Marketing ECM Bio 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0450 D&W Fine Pack, LLC 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0451 Email from J. Sweiger 

(D&W Fine Pack) to R. 

Fleming (D&W Fine Pack) 

Regarding "Questions & 

Answers for Robert Sinclair"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0452 Document entitled 

"Questions for Robert 

Sinclair"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0453 Glossary of Green Terms JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0455 ECM Certificate of 

Biodegradability for 

Dispozo-Products, Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0458 ECM Certificate of 

Biodegradability for 

Enviroware - Certified by 

Dispoz-o Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0459 Certificate of 

Biodegradability for 

Enviroware - Certified by 

Dispoz-o Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
136 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0460 Certificate of 

Biodegradability for 

Enviroware - Certified by 

Dispoz-o Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0462 Enviroware Biodegradable 

Straws, Cutlery, and Foam 

Products Pamphlet

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0463 Letter from G. Cilver 

(Dispoz-o) to M. Yost 

(Grand Canyon USD) 

Regarding Enviroware 

Biodegradable Samples

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0465 Email from G. Culver 

(Dispoz-o) to: B. Griffith 

(Dispoz-o) Regarding 

Envirofoam

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0466 Summary of D&W Meeting 

with Robert Sinclair

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0467 Letter from B. Hackler 

(Dispoz-o) to D. Mallen 

(NAD) Regarding Challenge 

to Dispoz-o's "Enviroware" 

advertising claims

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0468 Letter from D. Eveleigh 

(Solo-Cup) to D. Mallen 

(NAD) RE: Challenge to 

Dispoz-o's "Enviroware" 

advertising claims

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0469 Response to Solo/Nad JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0470 NAD Case #4990: Dispoz-O 

Products, Enviroware Plastic 

Utensils and Tableware

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0471 Email from A. Poje (ECM) 

to J. Swoger (Dispoz-o) 

Regarding NAD Ruling 

Conference Call

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1637, 

1640 

CCX-0472 Dispozo Biodegradation Test 

Design

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0473 Dispozo- Biodegradation 

Study T-2 Months

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
137 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0476 Email from D. Kizer 

(Dispoz-o) to: R. Sinclair 

(ECM) Regarding Draft 

Month 4 Interim Report 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0477 Email from D. Kizer 

(Dispoz-o) to R. Sinclair 

(ECM) Regarding Interim 

Report, Month 6 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0478 Email from B. Hackler 

(Dispoz-o) to R. Sinclair 

(ECM) Regarding 

Biodegradation testing scope 

of work and budget estimate

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0479 Attachment B: Scope of 

Work for Testing Protocol to 

Demonstrate Biodegradation 

of Plastics Samples

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0480 Email from A. Leiti (Dispozo) to R. Sinclair (ECM) 

Regarding Enviroware 

Testing

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0481 Email from B. Hackler 

(Dispoz-o) to R. Sinclair 

(ECM) Regarding Environ 

Testing

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0482 Email from M. Staton (D&W 

Fine Pack) to A. Leiti (D&W 

Fine Pack) Regarding 

Enviroware claims

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0483 Email from: A. Leiti (D&W 

Fine Pack) to M. Staton 

(D&W Fine Pack) Regarding 

Enviroware claims

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0485 Sustainability Update 

PowerPoint Presentation

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0486 Email from R. Davis (D&W 

Fine Pack) to R. Griffith 

(D&W Fine Pack) Regarding 

Sustainable Items

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0487 Enviroware Transition Plan 

(Containers, Cutlery & 

Straws) - PowerPoint 

Presentation

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
138 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0488 Letter from D. Eveleigh 

(NAD) to J. Lancia (Dispozo) Regarding Advertising for 

"Enviroware"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0489 Letter from B. Hackler 

(Dispoz-o) to A. Levine 

(NAD) Regarding Complaint 

by Solo Cup against Dispozo Products, Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0490 Down to Earth Deposition 

Subpoena 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0491 Email: from D. Hong (Island 

Plastics) to F. Santana 

(Down to Earth) Regarding 

Biodegradable Plastic Bags 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0492 Emails (and attachments) 

from B. Jay to: F. Santana 

(Down to Earth) Regarding 

Inquiry 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0494 Down to Earth 

Biodegradable Bag 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0496 Email from R. Sinclair 

(ECM) to F. Santana (Down 

to Earth) Regarding ECM 

Additives for Manufacturing 

Biodegradable Plastics 

Packaging and Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0497 Emails from A. Poje (ECM) 

to: F. Santana (Down to 

Earth) Regarding Help

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0498 Emails from A. Poje (ECM) 

to: F. Santana (Down to 

Earth) Regarding Help

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0499 Copy of CD JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0500 Down to Earth Press Release 

entitled Down to Earth to 

Switches to Biodegradable 

Plastic Bags on Earth Day 

April 22nd 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0501 Printout of Webpages from 

Down to Earth Website 

downtoearth.org

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
139 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0502 Pacific Business News 

Article entitled Down to 

Earth Switches to 

Biodegradable from 

bizjournals.com

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0503 Article entitled Down to 

Earth Will Switch to 

Biodegradable Plastic Bags

from honoluluadvertiser.com

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0504 Article entitled Down to 

Earth Switches to 

Biodegradable Plastic Bags 

on Earth Day April 22nd 

from hawaiireporter.com

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0505 ECM Database Summary 

Entry from: R. Sinclair to: F. 

Santana (DTE) Redacted

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0507 Email from A. Poje (ECM) 

to F. Santana (Down to 

Earth) Regarding ECM 

Claims for Biodegradability 

Challenged in Hawaii

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0508 Eagle Film Extruders Inc., 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0511 ECM Mechanism for 

Biodegradation Letter

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0512 Email from G. Collins (Eagle 

Film Extruders) to M. 

O'Malley (Eagle Film 

Extruders) ; E. Jordan (Eagle 

Film Extruders); Regarding 

Putnam Plastics Response to 

requested information in 

regard to ECM 

"Biodegradable" Additive 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0513 Email from M. O'Malley 

(Eagle Film Extruders) to G. 

Collins (Eagle Film 

Extruders) Regarding 

Putnam Plastics Inc.; Followup by ECM on Patriot Sign 

Request. 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
140 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0514 Email from M. O'Malley 

(Eagle Film Extruders) to C. 

Warren (Putnam Plastics) 

Regarding Putnam Plastics 

Inc.: More Information on 

our "Biodegradable" 

Additive

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0515 Email from M. O'Malley 

(Eagle Film Extruders) to K. 

Schmidt (Custom Poly) 

Regarding EFEI Information 

on our "Biodegradable" 

Additive

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0516 Email from G. Collins (Eagle 

Film Extruders) to J. Conrad 

(Custom Poly) Regarding 

Custom Ploy Packaging 

Earthworm Inquiry 6-10-11

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0517 Eden Research Laboratory 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0518 Eden Research Labaroty 

Website Screenshot

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0519 Eden Research Laboratory 

Update Regarding FPI 

Samples (55 days) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0523 Email from T. Poth (Eden) 

to: ECM BioFilms 

Regarding ECM BioFilms 

Web Contact Form

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0524 Eden Research Laboratory 

Proposal from T. Poth to R. 

Sinclair (ECM) Regarding 

Pricing

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0525 Email from R. Sinclair 

(ECM) to T. Poth (Eden) 

Regarding ECM BioFilms' 

Request from 1/24/13

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0526 Email from T. Poth (Eden) to 

R. Sinclair (ECM) Regarding 

ECM BioFilms Web Contact 

Form

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
141 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0527 Email from R. Sinclair 

(ECM) to T. Poth (Eden) 

Regarding ECM BioFilms' 

Request from 1/24/13

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0528 Email from R. Sinclair 

(ECM) to T. Poth (Eden) 

Regarding ECM BioFilms' 

Request from 1/24/13

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0529 Printout of Webpage on 

Plastics Environmental 

Council Technical Advisory 

Board from Website pecus.org

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0530 Email from C. Lancelot to R. 

Sinclair (ECM); T. Poth 

(Eden) Regarding Opposition 

Letter 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0535 Summary Report - 30 Day to 

Samsill - ASTM D5511-02 

Standard Test Methods to 

Determining Anaerobic 

Biodegradation of Plastic 

Materials Under HSAD 

Conditions 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0536 Email from T. Poth (Eden) to 

S. McGregor (Shields) 

Regarding Update 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0537 Eden Research Laboratory 

Update Regarding ASTM 

D5511-11 Update on Clear 

Films 476 & 477 (75 days) 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0538 Email from S. McGregor 

(Shields) to T. Poth (Eden) 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0539 Email from P. Kelly 

(Smithers Oasis) to T. Poth 

(Eden) Regarding 

Biodegradation testing costs

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0540 Email: from: T. Poth (Eden) 

to: R. Alire (FP 

International) Regarding 

Updated Final Report

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
142 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0541 Email from T. Poth (Eden) to 

R. Alire (FP International) 

Regarding Testing of FP 

International Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0542 Email from T. Poth (Eden) to 

J. Blood (FP International) 

Regarding Update

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0543 Eden Production Response to 

Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0544 Email from S. Alkin 

(Fellows) to T. Poth (Eden) 

Regarding Fellows Inc. - 

Biodegradation Testing

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0545 Eden Research Laboratories 

Biodegradability Certificate

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0549 Deposition Subpoena -

Elsevier Inc.

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0555 Biographical Sketch of 

Tadahisa Iwata, Ph. D

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0556 Flexible Plastics, Inc. 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0557 Flexible Plastics, Inc. 

Certification of Compliance 

and Records

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0559 Email from A. HassoldtFenoff (Flexible Plastics) to 

D. Sandry (Fleible Plastics) 

Regarding Flexible Plastics - 

ECM BioFilms' Product 

Logo

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0561 Email from D. Sandry 

(Flexible Plastics) to T. 

Nealis (ECM) Regarding 

Flexible Plastics - ECM 

BioFilms' Product Logo

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0562A Email from: R. Sinclair 

(ECM) to D. Sandry 

(Flexible Plastics) Regarding 

Question

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0564 Biodegradable Super 8 

Loosefill Data Sheet

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0565 FP International Flyer - We 

Care about the Environment

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
143 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0566 FP International Reusable 

Biodegradable Seal 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0567 ECM Certificate of the 

Biodegradability of Plastic 

Products made by Free-Flow 

Packaging International, Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0568 Email from J. Nezwek (FP) 

to R. Sinclair (ECM) 

Regarding Update

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0570 Email from R. Alire (FP) to 

R. Sinclair Regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 952, 

957, 961, 

1629 

CCX-0575 Email from R. Alire (FP) to 

R. Sinclair Regarding Third 

party test of our film

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0577 Email from R. Alire (FP) to 

R. Sinclair Regarding 

Specific Questions for Starch 

Tech Response

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0578 Westlaw: Hall v. Clifton 

Precision, 150 F.R.D. 525

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0579 Email from R. Alire (FP) to 

T. Barber Regarding Safco 

Demo

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0580 Email from R. Alire (FP) to 

R. Sinclair Regarding 

Dispozo Contact

JX-1-A, dated

9/4/2014; Tr. 521 

CCX-0581 Email from R. Alire (FP) to 

T. Barber (Environ) 

Regarding Biodegradation 

Study - M12 Preliminary 

Report

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0582 Letter from T. Barber 

(Environ) to R. Alire (FP) 

Regarding Biodegradation 

Testing - Preliminary Final 

Report

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2112, 

2113, 

2149, 

2151, 

2152

CCX-0586 Letter from M. Barlaz 

(NCSU) to: R. Alire (FP) 

Regarding BMP Report 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
144 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0587 Microbiology of Solid Waste

Book Excerpts

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0589 FP International Interoffice 

Memo from R. Alire to 

Executive Staff; R. Green 

Regarding Long Term BioDegradation Study Update

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0590 Memo from R. Alire (FP) to 

J. Blood (FP) Regarding 

Summary of Testing of FP 

International Products 

Containing Biodegradation 

Additive

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0592 Email from R. Alire (FP) to 

J. Goebel (FP) Regarding 

Bio plank

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0593 Email from J. Janicki to R. 

Alire (FP) Regarding Testing 

of FP International Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0595 Eden Research Laboratory 

Report Regarding 120 days 

testing of FP International 

Samples - ERL# 122-124 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0597 FP International 

Biodegradable Products 

Information Sheet

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0598 Email from J. Blood to C. 

Daigle Regarding Best 

generic D5511 and other 

results outside of Eden Lab

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0600 Email from R. Alire (FP) to: 

T. Barber (Environ) 

Regarding Letter to use with 

response to NAD

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0601 Email from J. Blood (FP) to 

C. Lancelot RE: NAD 

Decision re Advertising 

Claims

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0602 Email from C. Lancelot to 

multiple recipients 

Regarding SB 1454 

Coalition Letter

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
145 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0603 Email from C. Moriyama to 

multiple recipients 

Regarding SB 1454 

Coalition Letter

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0605 Email from J. Blood (FP) to 

R. Sinclair (ECM) Regarding 

Lunch

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0606 Email from R. Sinclair 

(ECM) to J. Blood (FP) 

Regarding 1991 Article on 

ASTM and Narayan

JX-1-A, dated

9/4/2014; Tr. 521 

CCX-0607 Privilege Log from FP 

International 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0608 Email from R. Alire (FP) to 

T. Barber (Environ) 

Regarding Letter for use with 

response to NAD

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0609 Letter from M. Barlaz 

(NCSU) to R. Alire (FP) 

Regarding BMP Report 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0611 Island Plastic Bags, Inc. 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0612 Email from D. Hong (IPB) to 

A. Hong (IPB) Regarding 

ECM Testing

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0613 ECM Certificate of the 

Biodegradability of Plastic 

Products made by Island 

Plastic Bags, Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0614 Email from A. Hong (IPB) to 

F. Sanyana (DTE) Regarding 

Subpoena from FTC re ECM 

Bio Films

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0618A Email from A. Hong (IPB) to 

Ohana Sales and Marketing 

Inc. Regarding Times 

Supermarket

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0619 Copy of CD - Image JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0620 Island Plastic Bags, Inc., 

Response to Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0621 Screenshot: Island Plastic 

Bags, Inc., Kitchen Bags

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
146 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0623 Sansei Seafood Restaurant 

and Sushi Bar Bag with 

ECM logo

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0626 Island Plastic Bags, Inc., 

Biodegradable Cutlery Fact 

Sheet

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0627 Island Plastic Bags, Inc., Bio 

Ultra Blend Liners Fact 

Sheet

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0632 Email from T. Nealis to D. 

Rucker (Geneva) Regarding 

ECM BioFilms' Basic Info 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0634 Tom Nealis LinkedIn Full 

Profile

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0639 Email from T. Nealis to D. 

Rucker (Geneva Watch 

Group) RE: ECM BioFilms 

Pics 1 of 10

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0640 Email from T. Nealis to D. 

Rucker RE ECM BioFilms 

Pics 2 of 10 - Amenity Bottle 

and Bag

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0641 Email from T. Nealis to D. 

Rucker Regarding ECM 

BioFilms Pics 4 of 10 - Paint 

Tray and Cups

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0642 Email from T. Nealis to D. 

Rucker Regarding ECM 

BioFilms Pics 5 of 10 - 

Marker and Mug

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0645 Email from T. Nealis to D. 

Rucker (Geneva Watch 

Group) Regarding ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and

Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0649 Email from T. Nealis to V. 

Lim (Clorox) Regarding 

ECM BioFilms' Additives 

for Manufacturing 

Biodegradable Plastic 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
147 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

Packaging and Products

CCX-0650 Email from T. Adante 

(Flambeau) to T. Nealis 

Regarding NewsFeed: A 

scientist questions 

'biodegradability' (Oct. 5) - 

Rotten Timing For Flambeau 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0651 Email from C. McCann 

(Sondor) to T. Nealis 

Regarding ECM BioFilms' 

Additives for Manufacturing 

Biodegradable Plastic 

Packaging and Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0654 Email from I. Buckley 

(Sanner) to T. Nealis 

Regarding Biodegradation in 

Water 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0655 Email from G. Milham 

(Cawarra) to T. Nealis RE: 

Biodegradability of plastics

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0657 Email from R. Sinclair 

(ECM) to D. DeChynne RE: 

Pricing Sheets

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0658 Email from J. Richards 

(Waytek) to T. Nealis 

Regarding ECM BioFilms 

PVC Testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0663 Northeast Laboratories, Inc., 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0664 Printout of Webpages from 

Northeast Laboratories, Inc. 

Website 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0665 Northeast Laboratories 

Report Summary ASTM: 

D5511-02 Standard Test 

Method for Determining 

Anaerobic Biodegradation of 

Plastics Materials Under 

High-Solids AnaerobicJX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
148 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

Digestion Conditions 

CCX-0666 ASTM: D5511-02 Standard 

Test Method for Determining 

Anaerobic Biodegradation of 

Plastics Materials Under 

High-Solids AnaerobicDigestion Conditions 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0669 Northeast Laboratories 

Analytical Report to 

National Tree Co. ASTM 

D5511 Determining 

Anaerobic Biodegradation of 

Plastic Materials Under 

HSAD Conditions 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0670 Northeast Laboratories 

Analytical Summary ASTM: 

D5511-02 Standard Test 

Method for Determining 

Anaerobic Biodegradation of 

Plastic Materials Under 

High-Solids AnaerobicDigestion Conditions 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0671 Email from P. Kelley

(Smithers Oasis) to A. 

Ullmann (Northeast Labs) 

Regarding Biodegradation 

Testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0672 Northeast Laboratories 

Analytical Report to 

MiniGrip ASTM D5511 

Extension Test 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0676 Email from L. De La Mora 

(Prodigy) to A. Poje 

Regarding Technical 

Questions

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 842, 

843, 845, 

846, 849, 

850

CCX-0681 Email from A. Poje to R. 

Ikin (BPT) Regarding Palace 

Testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
149 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0686 Email from K. Rockhill 

(Notemark) to A. Poje 

Regarding Tech Questions

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0689 Email from A. Poje to L. 

Bentley (Springs) Regarding 

Questions 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0690 Email from J. Alvis (ERG) 

to A. Poje Regarding LMOP 

landfill and project database, 

sorted by state, project status, 

and landfill name

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0691 Email from A. Poje to K. 

Reddy (UIC) Regarding 

Certified Landfill Leachate

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0692 Email from S. Parandoosh 

(Labplas) to A. Poje 

Regarding landfill leachate

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0694 FTC Guides for the Use of 

Environmental Marketing 

Claims #534743-00025 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0695 Email from J. Kohm (FTC) 

to A. Poje Regarding Green 

Guide Status

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0696 Email from J. Swiger 

(Dispoz-o) to A. Poje 

Regarding NAD Ruling

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0698 NAD News: Solo Cup 

Challenges Advertising 

Claims for Dispoz-o 

"Enviroware" Products 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0701 Letter from R. Narayan 

(Michigan State University) 

to S. Mojo (Biodegradable 

Products Institute) Regarding 

Analysis and Comments on 

ECM’s brochure, titled 

Ecological Assessment of 

ECM Plastic, dated Feb. 16, 

1999 - biodegradation in 

landfills

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0703 Narayan's summary - A Case 

Study on commercializing 

Starch- based biodegradable 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
150 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

plastics 

CCX-0704 Email from A. Poje to F. 

Santana (Down to Earth) via 

S. McCarthy (American 

Chemistry) Regarding ECM 

Claims for Biodegradability 

Have Been Challenged

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0705 Plastic News: Biomyths 

muddle up facts

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0706 Email from G. Swift to A. 

Poje; R. Sinclair (ECM) 

Regarding ASTM Landfill 

Std. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0710 Email from A. Poje to T. 

Brooks (Umbra) Regarding 

D5511 Testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0712 Email from A. Poje to C. 

Rempe (Automated 

Packaging Systems, Inc.) 

Regarding ASTM Testing

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0715 Email from F. Shields 

(Compost Lab) to A. Poje 

Regarding Biodegration of 

your product

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0718 Email from M. Ross to R. 

Decaire (Costco) Regarding 

ECM BioFilms' Test Results

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0722 Email from R. Pocius 

(TekPak Solutions) to R. 

Sinclair (ECM) Regarding 

CKF

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0723 Alan Poje Deposition 

Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0724 Quest Plastics, Inc. 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0725 Printout of Webpages from 

ECM BioFilms Website

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0727 Quest Plastics Inc. Invoice JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0728 Quest Plastics, Inc. 

Certification of Compliance 

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
151 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

and Records

CCX-0729 Complaint Counsel's Notice 

of Rule 3.33(c)(1) 

Deposition

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0730 Answer and Affirmative 

Defense of Respondent ECM 

BioFilms, Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0738 SEM Examination of ECM 

Plastic 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0741 Report about 

biodegradability of a plastic 

artefact - Ecologia Applicata

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 209

CCX-0742 Northeast Laboratories 

Analytical Report ASTM 

D5511-11 Report - redacted

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 207, 

208 

CCX-0743 Northeast Laboratories 

Analytical Report ASTM 

D5511 Extension Testing 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 204

CCX-0746 Letter from W. Burton (FTC) 

to D. Rosenfeld of Kelley 

Drye & Warren Regarding 

Fourth Submission Related 

to Inquiry Letter

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0747 Respondent's Supplemental 

Response and Objections to 

Complaint Counsel's First 

Set of Interrogatories

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0748 Plastic News article: CEO 

says FTC's Claims degrade 

his firm by Jeremy Carroll 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0756 ECM Certificate of 

Biodegradability 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0757 Email from C. Lenge (3M) to 

S. Joseph (3M) Regarding 

Biodegradable Materials and 

Related

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 875

CCX-0758 ECM Technology Overview, 

Biodegradation Mechanism 

Letter, and Technical and 

Material Data Sheets

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
152 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0763 Email from S. Joseph (3M) 

to Customer Service (ECM) 

Regarding ECM BioFilms' 

Additives for Manufacturing 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0764 Biodegradable Products 

Institute (BPI) Comments on 

Background on 

Biodegradable Additives 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0766 ECM PowerPoint 

Presentation - Italcom S.R.L 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0768 Screenshots: Study Notes 

and Composter Information

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0771 Biodegradation Study 

Report: The Aerobic 

Biodegradation of NEtFOSE Alcohol by the 

Microbial Activity Present in 

Municipal Wastewater 

Treatment Sludge

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0772 Email from R. Sinclair 

(ECM) to: C. Cybulski (3M) 

Regarding ECM BioFilms 

Web Contact Form

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0773 Letter from S. Giese-Bogdan 

(3M) to Federal Trade 

Commission Regarding 

Proposed Revised Green 

Guides

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0781 Email from T. Barber 

(Environ) to R. Lichtle 

Regarding Final Report

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0782 Environ Final Test Report 

Biodegradation Testing to R. 

Lichtle (Dolco Packaging)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0784 Email from D. Kizer 

(Dispoz-o Products) to B. 

Hackler (Dispoz-o Products); 

T. Barber (Environ) 

Regarding Enviroware 

Testing

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
153 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0791 Email from T. Barber 

(Environ) to J. Sulano (BioTech Products) Regarding 

Message for Timothy R. 

Barber, PhD from 

www.environcorp.com

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0792 Email from T. Barber 

(Environ) to P. Kappus 

(bioPVC) Regarding 

Biodegradation Study, 

Update for Month 2

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0796 Email from R. Alire (FP 

International) to T. Barber 

(Environ) RE: Safco Demo

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0799 Transcript of deposition of 

Timothy Barber, Ph. D on 

behalf of Environ

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0800 Transcript of Deposition of 

Robert Ringley on Behalf of 

BER Plastics, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0801 Transcript of deposition of 

Donald Kizer on Behalf of D 

& W Fine Pack, LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0802 Transcript of Deposition of 

Ashley Leiti on Behalf of D 

& W Fine Pack, LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0803 Transcript of Deposition of 

Frank Santana on Behalf of 

Down to Earth

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 24 

CCX-0804 Transcript of Deposition of 

George Collins on Behalf of 

Eagle Film Extruders Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0805 Transcript of Deposition of 

Thomas Poth on Behalf of 

Eden Labs

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1510

CCX-0806 Eden Errata JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0807 Poth Declaration JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0808 Transcript of Deposition of 

Elsevier

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
154 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0809 Transcript of Deposition of 

David Sandry on Behalf of 

Flexible Plastics, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0810 Transcript of Deposition of 

James Blood on Behalf of FP 

International

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 964

CCX-0811 Transcript of Deposition of 

Adrian Kawika Bu Ung 

Hong on Behalf of Island 

Plastics Bag, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0812 Transcript of Deposition of 

Annette Gormly on Behalf of 

Kappus Plastics Company, 

Inc. 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0813 Transcript of Deposition of 

Thomas Nealis 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0814 ECM Flyer JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0815 Transcript of Deposition of 

Alyssa Ullmann on Behalf of 

Northeast Laboratories, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0816 Transcript of deposition of 

Alan Poje

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0817 Transcript of Deposition of 

James Bean on Behalf of 

Quest Plastics, Inc.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0818 Transcript of Deposition of 

Robert Sinclair (as ECM 

corporate designee) - 

Volume one

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 834, 

917 

CCX-0819 Transcript of Deposition of 

Robert Sinclair (in his 

individual capacity) - 

Volume two

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 869, 

870, 893, 

995, 1646, 

1659

CCX-0820 Transcript of deposition of 

Kenneth Sullivan

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 719

CCX-0821 Transcript of Deposition of 

Stephen Joseph on Behalf of 

3M Plastics

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 912

CCX-0822 Transcript of Deposition of 

Ramy Samuel on Behalf of 

ANS Plastics Corp.

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
155 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0823 ANS Plastics Corp. 

Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0824 ECM Certificate of 

Biodegradability of Plastic 

Products - redacted

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0825 ECM MasterBatch Pellets 

Flyer 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0826 ECM Certificate of 

Assurance of Minimum 

Loading Rate When Using 

ECM MasterBatch 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0827 Reprint of Letter to an 

Interested Party - Life 

Expectancy of ECM 

Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0828 ECM Mechanism of 

Biodegradation Letter, 

Pricing Sheets, and 

Certificate of Assurance 

(with Green Guide Excerpts)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0829 ECM Logo JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0830 ANS Plastics Corp. 

Certification of Compliance 

and Records

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0831 Kappus Plastic Company, 

Inc. Deposition Subpoena

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0832 Fax from T. Kappus 

(Kappus) to ECM BioFilms' 

Regarding Certificate of 

Assutrance of Minimum 

Loading Rate When Using 

ECM MasterBatch Pellets

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0834 Letter from R. Sinclair 

(ECM) to T. Kappus 

(Kappus) Regarding ECM 

BioFilms' Additives for

Biodegradable Plastic 

Products

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
156 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0835 Email from R. Sinclair 

(ECM) to T. Kappus 

(Kappus) Regarding ECM 

BioFilms' Additives for 

Biodegradable Plastic 

Packaging and Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0836 Email from A. Poje (ECM) 

to T. Kappus (Kappus) 

Regarding ECM BioFilms' 

Additives for Biodegradable 

Plastic Packaging and 

Products

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0859 A. Tversky, Kahneman, D. 

1974. Judgment under 

uncertainty: Heuristics and 

biases. Science. 185 1124-

1131.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0860 Dr. Shane Frederick 

Amended Report 07.05.2014 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1038, 

1048, 

1056, 

1119, 

1160, 

1171, 

1401

CCX-0861 B. Englich, Mussweiler, T., 

Strack, F. 2006. Playing dice 

with criminal sentences: The 

influence of irrelevant 

anchors on experts' judicial 

decision making. Personality 

and Social Psychology 

Bulletin. 32(2) 188-200.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0862 U.S. Census Bureau 

American FactFinder 2013 

Population Estimates 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0863 Concatenated_Native File JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1134, 

1416, 

1417, 

1418

PUBLIC DOCUMENT
157 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0864 D. Mochon, Frederick, S. 

2013. Anchoring in 

sequential judgments. 

Organizational Behavior and 

Human Decision Processes. 

122(1) 69-79.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0865 Expert Rebuttal of Dr. Shane 

Frederick 06.30.2014 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1051, 

1053, 

1397, 

1401

CCX-0866 G.B. Chapman, Johnson, E.J. 

1999. Anchoring, activation, 

and the construction of 

values. Organizational 

Behavior and Human 

Decision Processes. 79(2) 

115-153.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0867 Google Consumer Surveys 

Product Overview

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0868 Google Inc., P. McDonald, 

Matt Mohebbi & B. Slatkin, 

Comparing Google 

Consumer Surveys to 

Existing Probability and 

Non-Probability Based 

Internet Surveys.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0869 Webpage: Google Consumer 

Surveys_Home

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0870 K.E. Jacowitz, Kahneman, 

D. 1995. Measures of 

anchoring in estimation 

tasks. Personality and Social 

Psychology Bulletin. 21(11) 

1161-1166.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0871 N. Schwarz. 1999. Selfreports: How questions shape 

the answers. American 

Psychologist. 54(2) 93-105.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0872 N. Silver, FiveThirtyEight, 

THE NEW YORK TIMES 

(Nov. 10, 2012).

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1070

PUBLIC DOCUMENT
158 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0873 Webpage: National Journal -

Americans Continue to Drop 

Their Landline Phones

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0874 Pew Research Center, A 

Comparison of Results from 

Surveys by the Pew Research 

Center and Google 

Consumer Surveys at 3 

(Nov. 7, 2012).

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1069

CCX-0875 PEW Research Center, 

Who's not online and why K. 

Zichuhr 09.25.2013

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0876 S. Frederick, Mochon, D. 

2012. A scale distortion 

theory of anchoring. Journal 

of Experimental Psychology: 

General. 141(1) 124-133.

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1063

CCX-0877 Schwarz, Norbert, Hippler, 

H.J., Deutsch, B, & Strack F. 

Response Scales: Effects of 

Category Range on Reported 

Behavior and Comparative 

Judgments, PUBLIC 

OPINION QUARTERLY 

49.3 (1985): 388-395.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0878 Donald T. Campbell & 

Donald W. Fiske, 

“Convergent and 

discriminant validation by 

the multitrait-multimethod 

matrix,” Psychological 

Bulletin, Vol 56(2), 81-105 

(Mar. 1959).

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0879 APPLIED AND 

ENVIRONMENTAL 

MICROBIOLOGY 6076–

6084, “Biodegradation of 

Polyester Polyurethane by 

Endophytic Fungi,” (Sept. 

2011).

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
159 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0880 E. Gomez & F. Michel, 

Biodegradability of 

conventional plastics and 

natural fiber composites 

during composting, 

anaerobic digestion and long 

term soil incubation, 98 

JOURNAL OF POLYMER 

DEGRADATION & 

STABILITY 2583-91 

(2013).

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2841,

2842, 

2844, 

2879, 

2896, 

2924, 

2953 

CCX-0883 42 USC 85 Air Pollution 

Prevention and Control

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0884 Wang, Y.-S., Byrd, C. S. and 

M. A. Barlaz, 1994, 

“Anaerobic Biodegradability 

of Cellulose and 

Hemicellulose in Excavated 

Refuse Samples,” Journal of 

Industrial Microbiology, 13, 

p. 147- 53.

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0885 CFR Title 40 Part 63 JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0886 CFR Title 40 Part 239 JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0887 CFR Title 40 Part 258 JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0888 EPA Report - Guidance on 

Environmental Data 

Verification and Data 

Validation

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0889 Solid Waste Disposal Act 42 

USC 6901-6992k

JX-1-A, dated

9/4/2014; Tr. 521

CCX-0890 Expert Report of Dr. Shane 

Frederick

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0891 Expert Report of Dr. Stephen 

McCarthy

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 307

CCX-0892 Rebuttal Expert Report of 

Dr. Stephen McCarthy

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 627

CCX-0893 Expert Report of Dr. Thabet 

Tolaymat

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 115, 

116, 119, 

235, 261, 

263, 268, 

PUBLIC DOCUMENT
160 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

295, 328

CCX-0894 Rebuttal Expert Report of 

Dr. Thabet Tolaymat

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 117, 

353

CCX-0895 Rebuttal Report by Dr. 

Frederick C. Michel

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2839, 

2840, 

2861, 

2898

CCX-0896 Dr. Frederick C. Michel CV JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 2840

CCX-0897 Albertsson-Biodegradation 

of synthetic polymers. III. 

The liberation of 14CO2 by 

molds

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0898 Biodegradation of Synthetic 

Polymers. II. A Limited 

Microbial Conversion of 14C 

in Polyethylene to 14C02 by 

some Soil Fungi

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0899 Kinetics of Biodegradation 

in Soil

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0900 Development and Analysis 

of Anaerobic Biofilms onto 

Hydrophobic and 

Hydrophylic Surfaces

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0901 Specific and non-specific 

interactions in bacterial 

adhesion to solid substrata

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0902 Quantitative analysis of 

adhesion and biofilm 

formation on hydrophilic and 

hydrophobic surfaces of 

clinical isolates of 

Staphylococcus epidermidis

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0903 Determination of Monod 

Kinetics of Toxic 

Compounds by Respirometry 

for Structure—

Biodegradability 

Relationships

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
161 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0904 Erikson-Microplastic 

pollution in the surface 

waters of the Laurentian 

Great Lakes

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0905 Gomez-Michel-Polymer 

Degradation and Stability 

2013

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0906 Size fractionation and 

microbial community 

structure of soil aggregates

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0907 Characterization of 

Microbial Diversity by 

Determining Terminal 

Restriction Fragment Length 

Polymorphisms of Genes 

Encoding 16S rRNA

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0908 Bioremediation of a PCBContaminated Soil via 

Composting

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0909 Microbial Degradation and 

Humification of the Lawn 

Care Pesticide 2,4-

Dichlorophenoxyacetic Acid 

during the Composting of 

Yard Trimmings

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0910 Role of Managese 

peroxidases and lignin 

peroxidases of 

Phanerochaete 

chrysosporium in the 

decolorization of kraft bleach 

plant effluent

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0911 Biodegradation and 

Bioremediation 1997

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0912 Bacterial Community 

Structure During Yard 

Trimmings Composting

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0913 Assessing the areobic 

biodegradibility of 14 

hydrocarbons in two soils 

using a simple microcosmrespiration method

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
162 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0914 Biodegradation of Biaxially 

Stretched PolyethyleneStarch Composite Films

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0915 Degradable Polyethylene: 

Fantasy or Reality

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0916 Strategies to evaluate 

biodegradability: application 

to chlorinated herbicides

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0917 Priming Effect of Substrate 

addition in soil-based 

biodegradation tests

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0918 Microbial diversity and 

function in soil: from genes 

to ecosystems

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0919 Bacterial community 

composition and abundance 

in leachate of semi-aerobic 

and anaerobic landfills

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0920 Article: The Biodegradation 

of Blends of PCL and PE 

Exposed to a defined 

consortium of fungi

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0921 Biodegradation of PE and PP 

Article 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0922 Science Direct Article: 

Biological degradation of 

plastics: A comprehensive 

review

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0923 An overview of Degradable 

and Biodegradable 

Polyolefins

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0924 Email from W. Walsh to K. 

Johnson Subject: ECM - 

Subpoena to Ecologic 

Solutions, LLC

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0925 Environmental 

biodegradation of PE

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0926 Enzymatic degradation of 

plastics containing PCL

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0927 Enzymatic degradation of 

plastics containing 

Polycaprolactone

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
163 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0929 Final Report: Aerobic 

Biodegradation Test of 

ECM-Treated EPS Foam

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0930 Barlaz and Mojo work 

together on ASTM 

Subcommittee D20.96 - 

Draft Agenda

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0931 Barlaz works with Narayan 

at ASTM Subcommittee 

Minutes D20.96

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0932 Draft Minutes ASTM 

Subcommittee D20.96 on 

Environmentally Degradable 

Plastics 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0933 FP Intl BMP Report 11-14-

10 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2308, 

2309, 

2312

CCX-0935 Hercules ClickZip JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0936 Mojo recommends Barlaz JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0937 Mojo uses Barlaz Lab JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0939 PEC Announcement JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0941 Google Consumer Survey 

Video

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0942 McCarthy Exhibit A JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0943 Barlaz Final Deposition 

Transcript

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0945 Barlaz Exhibit 2 - The 

Microbiology of Extreme 

and Unusual Environments - 

Microbiology of Solid 

Waste, edited by Dr. Barlaz 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0946 Barlaz Exhibit 3 - NC State -

Barlaz testing FP 

International #10-441-

Biodegradable Super-8 

Loosefill 12.5.2010

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2311, 

2312 

PUBLIC DOCUMENT
164 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0947 Barlaz Exhibit 4 - NC State -

Barlaz testing FP 

International #10-441-

Biodegradable Super-8 

Loosefill 12.5.2010

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0948 Barlaz Exhibit 5 - Test of 

Biodegradable Materials 

Under simulated Landfill 

Conditions 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0950 Barlaz Exhibit 7 - Plastics 

Environmental Council to 

Develop Biodegradation 

Standard for Plastics 

Additives and New 

Certification Seal 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0951 Barlaz Exhibit 8 - NC State -

Barlaz testing Ecolab 

Methane Yields from BMP 

samples 2.18.2012

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2312, 

2313 

CCX-0952 Barlaz Exhibit 9 - NC State -

Barlaz testing StarchTech 

3.4.2010 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2269, 

2302, 

2303, 

2306

CCX-0953 Barlaz Exhibit 10 - Email 

from Barlaz to Mithal Re: 

FW: Anaerobic Degradation 

Testing of ECM Additive 

8.10.2009

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2315, 

2316 

CCX-0954 Barlaz Exhibit 11 - Email 

from Mithal to Sinclair 

Subject: Anaerobic 

Degradation Testing of ECM 

Additive with NCSU Test 

Results Attachment 8.7.2009

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2317, 

2318, 

2319 

CCX-0955 Barlaz Exhibit 12 -

Spreadsheet of Reports 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0956 Barlaz Exhibit 13 -

Respondent's Final Proposed 

Witness and Exhibit List 

6.25.2014

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0959 ECM List of Client names 

from 2/2011-4/2011

JX-1-A, dated 

9/4/2014; Tr. 521

PUBLIC DOCUMENT
165 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0960 Email from Joe P. Reis to 

Sinclair Re: Bob Sinclair: 

ASTM certifications 

5.27.2010

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0961 Web Screenshot - Plastic 

Shopping Bags: Ecozel, Inc. 

"Going Green"

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0963 Email from Adante to Nealis 

Subject: Question 9.8.2010 

(Narayan Email)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0964 Email from Hartman to 

Sinclair (no subject) 2 

attachments re Masternet 

10.26.2009

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0965 Email from J. Blood to 

Sinclair and Lancelot 

Subject: NAD Decision with 

2 attachments 2.11.2011

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0966 Email from Hartman to 

Sinclair Re: ECM BioFilms' 

Additives for Manufacturing 

Biodegradable Plastic 

Packaging and Products 

2.14.2011

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0967 Email from P Hartman to S 

Hartman, L Duvall, Sinclair 

FW: with 3 attachments 

10.28.2009

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0968 Email from P Hartman to 

Sinclair FW; with 2 

attachments 11.2.2009

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0969 Barber Deposition Excerpt JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0970 Microtech Research Inc: 

Combined Tests 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0971 Marketing Materials that say 

"Independent"

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0972 Compilation of Emails 

regarding "Independent 

Tests"

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
166 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-0973 Compilation of Emails 

regarding "Independent 

Tests" with Certificate 

Attachments (30 Pages)

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0974 Clear Report of Patrick Riley 

- Redacted 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0975 Riley House via Google 

Maps 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0976 Example of Google Surveys 

- Powerpoint by Dr. 

Frederick 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0977 The Limits of Attraction -

Article by Frederick, Lee, 

Baskin - American 

Marketing Association 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 1111, 

2675, 

2676, 

2682, 

2817

CCX-0978 Letter from EcoLogic, LLC 

to Chairman Jon Leibowitz 

(FTC) 12.10.2010

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0983 Stewart 4 - Life Expectancy 

of Products Manufactured 

with ECM MasterBatch 

Pellets - Online Article

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0984 Stewart 5 - Sample Claims 

by ECM Biofilms 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-0987 Stewart 8 - Brandsavant: 

Google Customer SurveysAre you feeling lucky?

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0994 Sahu 1 - CC Amended 

Notice of Asserted Expert 

Depositions 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0998 Sahu 5 - Article 11 

Analytical Methods for 

Monitoring Biodegradation 

Processes of 

Environmentally Degradable 

Polymers 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-0999 Sahu 6 - Online Article -

Polylactic Acid Polymer and 

Copolymer with Polyesters 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1000 Sahu 7 - Heat Generation in 

Municipal Solid Waste 

Landfills by Yesiller 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
167 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-1001 Sahu 8 - EPA Operational 

Projects: Landfill Methane 

Outreach Program 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1002 Sahu 9 - Review Article of 

Text: Biodegradability of 

Plastics by Y. Tokiwa 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1004 Sahu 11 - Journal of 

Microbiology and 

Biotechnology Research: 

Biodegradation of LDPE by 

fungi isolated from 

municipal landfill area 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1007 Transcript of Deposition of 

Alexander Volokh 

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 2476-

Stricken

CCX-1008 Volokh 1 - Packaging, 

Recycling, and Solid Waste 

Tr. 983 Tr. 983; 

Tr. 2476-

Stricken

CCX-1009 Volokh 2 - ECM Additive 

Visual (Flyer)

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 2476-

Stricken

CCX-1010 Volokh 3 - Trim Tray Visual 

with 100% Biodegradable 

Claim

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1011 Volokh 4 - Biomugs 

Biodegradable Paper with 

Claims of 1-5 Years 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1015 Volokh 8 - Island Plastic 

Bags Website Cutlery 

Explanation 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1022 Volokh 15 - Transcript of Dr. 

Tadahisa Iawata 

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 2476-

Stricken

CCX-1030 Volokh 23 - NC State Letter 

to FPI Re: BMP of Samples 

Provided 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1033 Volokh 26 - Order denying 

respondent's motion to 

compel expert witnesses' 

responses to subpoenas 

duces tecum 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1034 Volokh 27 - Order denying 

without prejudice 

respondent's motion for leave 

to serve subpoenas duces 

tecum 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

PUBLIC DOCUMENT
168 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-1035 Volokh 28 - ECM Biofilm's 

motion to sanction CC for 

unauthorized intentional 

dissuaion of response to 

subpoena duces tecum 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1036 Volokh 29 - Respondent's 

third supplement to motion 

to sanction CC for 

unauthorized dissuasion of 

response to subpoena duces 

tecum 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1037 Volokh 30 - Respondent's 

supplement to motion to 

sanction CC for unauthorized 

dissuasion of response to 

subpoena duces tecum 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1038 Volokh 31 - Report on Bias 

and Caputre in the 

Promulgation of the Green 

Guides and Enforcement 

Action Against ECM 

Biofilms 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1042 Volokh 35 - General Bias 

and Administrative Law 

Judges: Is There a Remedy 

for Social Security Disability 

Claimants by J. Vendel

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1043 Volokh 36 - Dr. Michel is 

heavily invested in the 

compost industry 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1045 Volokh 38 - Respondent 

ECM Biofilm's Supplemental 

Expert Witness List 

JX-1-A, dated 

9/4/2014; Tr. 521 

Tr. 2476-

Stricken

CCX-1047 Tolaymat 1 - CC 

Supplemental Expert 

Witness List 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1048 Tolaymat 2 - Resume of Dr. 

Tolaymat 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-1050 Tolaymat 4A - Performance 

of North American 

Bioreactor Landfills I. 

Leachate Hydrology and 

Waste Settlement 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
169 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-1051 Tolaymat 4B - Performance 

of North American 

Bioreactor Landfills II. 

Chemical and Biological 

Characteristics

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1052 Tolaymat 4C - Elevation of 

Lanfill Gas Decay Constant 

for MSW Landfills Operated 

as Bioreactors 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1054 Tolaymat 6 - Anaerobic 

biodegradability of cellulose 

and hemicellulose in 

excavated refuse samples 

using a biochemical methane 

potential assay 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1057 Tolaymat 9 - EPA 

Biodegradability of Plastics 

Under Anaerobic 

Environment 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1060 Tolaymat 12 - NSF 

International to S. Mojo Re. 

Testing Completed per 

D5511 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1063 Tolaymat 15 - Email from J. 

Powell to T. Tolaymat RE: 

Question 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1069 Tolaymat 21 - International 

Standard ISO 14855-1

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-1070 Tolaymat 22 - Ecologia 

Applicata - Italy Test 180 

Days 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1071 Tolaymat 23 - Eden Report 

D5511-11 Test 070312C - 

Shields Bag and Printing 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1072 Tolaymat 24 - Estimate of 

the decay rate constant of 

hydrogen sulfide from 

drywall in a simulated 

bench-scale study 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1073 Tolaymat 25 - Assessment of 

the anaeobic degradation of 6 

active pharmaceutical 

ingredients 

JX-1-A, dated 

9/4/2014; Tr. 521 

PUBLIC DOCUMENT
170 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-1074 Google News Blog Video 

7/28/2014

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-1075 Transcript of Deposition of 

Ryan Burnette 

JX-1-A, dated 

9/4/2014; Tr. 521

CCX-1077 Burnette 2 - Additive 

Technology for Polyolefin 

Biodegradation by Robert 

Sinclair of ECM BioFilms 

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1078 Burnette 3 - Paper entitled 

Agricultural Application and 

Environmental Degradation 

of Photo-Biodegradable 

Polyethylene Mulching 

Films

JX-1-A, dated 

9/4/2014; Tr. 521 

CCX-1081 Burnette 6 - Handwritten 

drawing 

JX-1-A, dated 

9/4/2014; Tr. 521

Tr. 2416

CCX-1089 Burnette 14 - CV of Burnette JX-1-A, dated 

9/4/2014; Tr. 521

CCX-1091 Database Excerpt Cosco Tr. 879 Tr. 879, 

882, 883, 

884. 888

CCX-1092 Database Excerpt 3M Group Tr. 892 Tr. 892, 

893, 894

CCX-1093 Email from R. Sinclair to 

'Pam" RE: Biodegradable 

plastic film 

Tr. 937 Tr. 937

CCX-1094 Email from Pam 

(pdonova1@comcast.net) to 

biodeg@ecmbiofilms.com 

Subject: Biodegradable 

plastic film 

Tr. 939 Tr. 939, 

940 

CCX-1095 Email from S. Hayden to R. 

Sinclair Re: Anerobic 

certification 

Tr. 968 Tr. 968, 

972 

CCX-1096 Eden Labs Update to FP 

International From T. Poth 

regarding FPI Samples 120 

Days 

Tr. 1498 Tr. 1497, 

1498, 

1499 

PUBLIC DOCUMENT
171 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-1097 Eden Labs Report ASTM 

D5511-11 Test - 092511B to 

FP International From T. 

Poth regarding 120 days 

testing of FP International 

Samples - ERL# 119-124

Tr. 1498 Tr. 1497, 

1498, 

1500, 

1502, 

1543 

CCX-1099 Affidavit of Robert Sinclair Tr. 1608 Tr. 1608

CCX-1100 Email from P. Hartman to R. 

Sinclair RE: ECM BioFilms' 

Additives for Manufacturing 

Biodegradable Plastic 

Packaging and Products

Tr. 1625 Tr. 1623, 

1624, 

1625 

CCX-1101 Email from J. Blood to R. 

Sinclair and C. Lancelot 

Subject: NAD Decision and 

2 Attachments (Decision and 

Press Release)

Tr. 1633 Tr. 1631, 

1633, 

1634 

CCX-1102 Database Excerpt Mayorga 

Firm, Inc

Tr. 1641 Tr. 1641

CCX-1103 Email from S. Deoras to R. 

Sinclair RE: Meeting with 

Bob Sinclair - ECM 

BioFilms 

Tr. 1708 Tr. 1707, 

1708, 

1709 

CCX-1104 Email from R. Sinclair to 

agh@rti.org Subject: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

4 Attachments 

Tr. 1712 Tr. 1711, 

1712 

CCX-1105 Email from R. Sinclair to 

mellis@humphreyline.com 

Subject: ECM BioFilms' 

Email 1 of 3 with 8 

Attachments 

Tr. 1718 Tr. 1716, 

1718, 

1719, 

1720 

CCX-1106 Email from R. Sinclair to 

George Collins Subject: RE: 

Earthworm Health/Safety 

with 3 Attachments

Tr. 1722 Tr. 1722

PUBLIC DOCUMENT
172 

Exhibit No. Description Admitted Tr. Pages 

Where 

Discussed

In 

Camera

CCX-1107 Email from R. Sinclair to J. 

Presnell Subject: RE: ECM 

BioFilms' Additives for 

Manufacturing 

Biodegradable Plastic 

Packaging and Products with 

9 Attachments 

Tr. 1722 Tr. 1722

CCX-1108 Email from R. Sinclair to 

BurgeTr@dwfinepack.com 

Subject: ECM BioFilms' 

Additives for Manufacturing 

Biodegradable Plastic 

Packaging with 5 

Attachments

Tr. 1722 Tr. 1722

CCX-1110 Anaerobic Biodegradation of 

Aliphatic Polyesters - Article 

by Federle, Barlaz, et al

Tr. 2331 Tr. 2327, 

2332 

Dated: September 29, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Artie Decastro (adecastro@ftc.gov)

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission

600 Pennsylvania Ave., N.W. CC-9528 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; -3001 

Fax: 202-326-2551 

PUBLIC DOCUMENT
173 

CERTIFICATE OF SERVICE

I hereby certify that on September 30, 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, one hard copy, and one copy through the 

FTC’s e-filing system:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov

One electronic copy and three hard copies 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 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Eric J. Awerbuch

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuch@emord.com

Date: September 30, 2014 

 /s/Katherine Johnson 

 Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission

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

Washington, DC 20580 

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

Fax: 202-326-2558 

PUBLIC DOCUMENT