In the Matter of 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMlVJSSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

OR\G\NAL 

PUBLIC 

ECM BioFilms, Inc., 

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DOCKET NO. 9358 

a corporation, also d/b/a 

Enviropl3Stics International, 

Respondent 

ORDER ON POST-TIUAL BRIEFS 

I, Post-trial briefing schedule 

Pursuant to Federal Trade Commission Rule of Practice 3.46(a), each party may file 

proposed findings of fact, conclusions oflaw, and rule or order, together with reasons therefor 

and briefs in support thereof, within 21 days of the closing of the hearing record; and each party 

may file reply findings of fact, conclusions oflaw, and bnefs within 10 days of service of the 

initial proposed findings. 16 C.F.R. § 3.46(a). Pursuant to Rule 4.3(b), for good cause shown, 

the Administrative Law Judge may extend any time limit prescribed by the rules in this chapter, 

except those not applicable here. 16 C.F.R. § 4.3(b). 

The record from this multi-week trial is extensive. Because of the many scientific and 

technical issues presented.by this case, thorough and careful replies are particularly important. 

Additional time for replies ·win help ensure that the parties have adequate time to be thorough 

and careful in replying to each other's proposed findings, including in distinguishing the 

admitted evidence from evidence that was not. offered or admitted for the truth .of the matter 

asserted or was conditionally admitted. Based on the number of expert witnesses and the 

complex scientific and techmcal issues involved, good cause exists under Rule 4.3 to extend the 

deadline for filing post-trial Reply Briefs and Replies to Proposed Findings. 

In accordance with Commission Rules 3.46 and 4.3, the deadlines for post-trial briefs are 

as follows: 

September 25, 2014 Deadline for filing concurrent post-trial briefs, 

proposed findings of fact, and conclusions of law; and 
October 16,.2014 Deadline for flling concurrent reply briefs 

and replies to proposed findings of fact. 

The parties shall serve each other with electronic copies of all post-trial pleadings 

immediately after filing such pleadings. 

The parties shall serve the Office of Administrative Law Judges (OALJ) with three hard 

copies of ~11 post-trial briefs and one electt:onic version of all post-trial briefs. The electronic 

version shall be in MS-Word (.doc/.docx) format, using Times New Roman 12 point font. 

Electronic service on the OALJ shall be made to OALJ@ftc.gov. 

H. Mandatory rules for post-tri&l briefs 

The following requirements apply to post-trial briefs, proposed findings of fact, 

conclusions oflaw, post-trial reply briefs, and replies to proposed findings of fact, and shall be 

strictly followed: · 

16 C.F.R. § 3.46sets forth express requirements for proposed findings offact and 

conclusions of law. In accordance with Rule 3.46(a), Complaint Counsel shall provide 

a proposed order for relief, together with supporting facts and law, and Respondent 

shall specifically reply thereto. 

All proposed findings of fact sha:ll be supported by specific references to the 

evidentiary record. All conclusions oflaw, including, but not limited to, liability and the 

proposed remedy, shall be supported by applicable legal authority. The parties shall 

specifically include briefing in support of or in opposition to the proposed order. 

Do not Cite to testimony for the truth of the matter asserted if the testimony was 

admitted for a purpose other than for the truth of the matter asserted. If such testimony is 

cited, the party shall indicate in its brief or proposed findmgs that the testimony was 

elicited for a purpose other than for the truth of the matter asserted. 

Do not cite to evidence that was admitted for a limited purpose for any purpose 

other than the theory under which it was admitted. 

Do not cite to evidence that was determined at trial to be "disregarded" or "not 

considered." 

Do not cite to documents that are not in evidence, documents that have been 

withdrawn, or documents that have been rejected. 1 

1 The parties are directed to comply with the Order Granting Respondents' Motion to Strike, issued in Chicago 

Bridge & Iron Co., Docket 9300 (June 12, 2003), http://www.ftc.gov/ os/adjpro/d9300/ 

0306l2alj ordrantrespmotostr1ke. pdf. 

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Do not cite to demonstrative exhibits as substantive evidence. 

Do not cite to expert testimony to support factual propositions that should be 

established by fact witnesses or documents. 

Do not cite to an offer of proof or testimony or docwnents that were elicited on an 

offer of proof 

Violations of the requirements of this Order should be pointed ou:tby opposing 

counsel in the reply brief or reply to proposed findings of fact. 

When citing to trial testimony, the parties shall identify that testimony by the 

witness' name, the letters "Tr." and the trnnscript page number. Do not provide line 

numbers or the word "at" before the transcript page number. Do not use first initials 

unless there is more than one witness with the same last name. The citation following the 

statement of fact shall be in parentheses. An example of the format that shall be used is: 

(Smith, Tr. 1 098). If more than one source is used for the same proposition, the format 

that shall be used is: (Smith, Tr.1098; Jones, Tr. 153). 

When citing to deposition testimony or testimony from an investigational hearing 

transcript ("IHT") that was admitted in evidence, the parties shall cite to that testimony 

by setting forth the exhibit number, and then, in parentheses, the deponent's name, the 

letters ''Dep." or "IHT ," and the transcript page number. Do not provide line numbers. 

Do not use first initials unless there is more than one witness with the same last name. 

The citation following the statement of fact shall be ii1. parentheses. An example of the 

format that shall be used is: (RX 100 (Smith, Dep. at 1 098)). 

When deposition testimony or testimony from an IHT that was admitted in 

evidence has been cited by a party, and the opposing party has an objection to the use of 

such testimony, the opposing party shall point out its objection to such excerpt in its reply 

to the proposed findmg, or such objection shall be deemed waived. 

Do not use "!d." as a cite for proposed findings of fact or reply findings of fact 

Do not cite to more than one copy ofthe same document (i.e., ifRX 100 and CX 

200 are different copies of the same document, cite to only one exhibit number). 

Reply briefs shall be limited to refuting issues raised by the opposing side and 

should not be used merely to bolster arguments made in the opening post-trial briefs. 

Reply briefs shall reply to the arguments in the same order as the arguments were 

presented by the opposing party in its opening bnef. 

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Reply findings of fact shall set forth the opposing party~ s proposed fmding of fact 

in single space and then set forth the reply in double space. Reply findings of fact shall 

be numbered to correspond to the findings that the reply findings are refuting and shall 

use the same outline headings as used by the opposing party in its opening proposed 

findings of fact. If you have :riO specific response to the opposing party's proposed 

finding of fact, set forth the opposing party's proposed fmding of fact and then state that 

you have no specific response or do not disagree. 

An example of the format for reply findings that shall be followed is: 

39. Jarrett Inc. was a corporation organized and existing under 

the laws of the Commonwealth of Pennsylvania, publicly traded on 

th~ American Stock Exchange, with its principal place of business 

at 1740 Lake Needwood Drive, Suite 300, Arlington. VA, 22201. 

(CX 328 at 001253; CX 021 at 1003; Hanson, Tr. 6732). 

Response to Finding No. 39: 

Respondent has no specific response. 

Reply findings of fact should be used only to directly contradict the other side's 

p~;oposed findmgs, and should not be used merely to restate the proposition in language 

which is more favorable to your position. 

. Briefs and proposed findings and replies thereto shall be printed double-sided and 

shall be spiral bound or coil bound. Velo binding or comb binding shall not be used. 

ORDERED: 

Date: September 3, 2014 

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