UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

OFFICE OF THE ADMINISTRATIVE LAW JUD 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

569270 

RESPONDENT'S (TIDRD) SUPPLEMENT TO MOTION TO SANCTION COMPLAINT 

COUNSEL FOR UNAUTHORIZED DISSUASION OF RESPONSE TO SUBPOENA 

DUCES TECUM 

ECM BioFilms, Inc. (ECM), by counsel, hereby provides this third supplement to its 

pending Motion to Sanction Complaint Counsel for Unauthorized Dissuasion of Response to 

Subpoena Duces Tecum ("Motion") with the attached new infonnation. On March 31, 2014, 

after ECM submitted its original motion on March 19, 2014, Complaint Counsel produced 

documents that included con espondence ge1mane to ECM's above-captioned motion to sanction. 

The inf01m ation was not available to ECM when it filed its original motion.

1 

ECM hereby submits additional evidence of Complaint Counsel interference with a nonpatiy response to an ECM subpoena. On Febmaty 13,2014, ECM subpoenaed Dr. Ramani 

Nm·ayan for inf01m ation conceming industry conflicts and his scientific assessments of ECM's 

product. ECM supplemented that subpoena with additional requests on Febmmy 28, 2014. Dr. 

Nm·ayan was a scientific officer for the "Biodegradable Plastics Institute," an interest group 

funded by companies with interests in composting technologies-companies that compete 

1 Rule 3 .22( d) generally embraces filings that supplement the record with important 

developments that could not have been raised in earlier pleadings. 

1 
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2

directly with ECM and who stand to gain financially from a reduction in competing landfillable 

plastics.2

In early March, Complaint Counsel discussed the terms of ECM’s non-party subpoena 

with Dr. Narayan’s counsel. On March 5, 2014, Complaint Counsel represented to Dr. 

Narayan’s counsel that, because FTC did not intend to call Dr. Narayan as an expert or fact 

witness, the information required to be produced under ECM’s subpoena would be significantly 

reduced. According to Complaint Counsel: “[t]his should make responding to [ECM’s] 

supplemental subpoena much easier, since most of the requests are completely irrelevant, 

burdensome, and otherwise objectionable.” See Attachment A (March 5, 2014 Email from 

Complaint Counsel to Narayan Counsel). 

 ECM submits Attachment A as further evidence of direct Complaint Counsel interference 

with non-party subpoenas. This evidence, involving a non-party other than Dr. Michel (the 

subject of the originally filed motion), reveals that the practice may be systemic. The conduct 

demonstrated in Attachment A hereto is not unlike the “advice letters” featured in the Price case.

See Price v. Trans Union, LLC, 847 F.Supp. 2d 788, 791 n.2 (E.D. Pa. 2012) (that attorney had 

stated in his advice letter that, “we feel compelled to advise your organization of these concerns 

and expect your cooperation in refraining from providing documents and information...”). 

Complaint Counsel has no legal authority or right to supplant this Court’s authority over 

subpoenas or interfere with ECM subpoena requests, as further evidenced by the attached email 

which seeks to dissuade production of requested documents. 

2

 Since at least 2005, BPI has directly lobbied the Commission to investigate ECM 

plastics. BPI also had a substantial role in advocating changes to the FTC’s “Green Guides,” 

which ultimately favored the composting industry over all others who sell biodegradable 

products.
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 Respectfully submitted, 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord (jemord@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

 Facsimile: 202-466-6938 

DATED this 1st day of April 2014. 
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4

CERTIFICATE OF SERVICE 

I hereby certify that on April 1, 2014, I caused a true and correct copy of the foregoing 

filing to be served as follows: 

One copy to the Office of the Secretary via the e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy to the Office of the Administrative Law Judge:

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant:

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

 Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

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

document that is available for review by the parties and adjudicator consistent with the 

Commission’s Rules. 

DATED: April 1, 2014 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937
Attachment A 
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ECM (3d) Supp. to Mot. for Sanctions

Attachment A

From: 

Sent: 

To: 

Subject: 

thanks 

george brookover <g. brookover@gmail. com> 

Wednesday, March 5, 2014 7:21PM 

Johnson, Katherine <kjohnson3@ftc.gov> 

Re: Dr. Narayan 

On Wed, Mar 5, 2014 at 2:19PM, Johnson, Katherine !<:j.Q.hlJ..~QD.J@ft.<;.,gQy> wrote: 

George, 

After careful consideration, we will not list Dr. Narayan as a potential expert witness; and likely will have no 

reason to call him as a fact witness either. This should make responding to the supplemental subpoena much 

easier, since most of the requests are completely irrelevant, burdensome, and otherwise objectionable. I would 

hope that ECM withdraws the supplemental subpoena once it receives our expert witness list later on today . 

. Ifl can do anything further to assist you, please do not hesitate to let me know. 

, Regards, 

Katherine 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 028 

Washington, DC 20580 

Direct Dial: @:?1.]£6-2185 

Fax: (?.Q~.L~.~§::?.?.?? 

Email: ~jg_hnson3@ftc.9QY 

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intended only for the use of the addressee and may contain legally privileged and confidential information.Any 

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original printed document. 

FTC _Prod_ 064148