UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFUms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

PUBLIC 

RESPONDENT'S SUPPLEMENT TO MOTION TO SANCTION COMPLAINT 

COUNSEL FOR UNAUTHORIZED DISSUASION OF RESPONSE TO SUBPOENA 

DUCES TECUM 

ECM BioFilms, Inc. (ECM), by counsel, hereby supplements its pending Motion to 

Sanction Complaint Counsel for Unauthorized Dissuasion of Response to Subpoena Duces 

Tecum ("Motion") with the attached new information. On March 24, with full notice ofECM's 

pending Motion, Matthew J. Wilshire, one of Complaint Counsel, yet again directed the 

subpoena response ofECM subpoena recipient Frederick Michel. See Exh. R.X-J. The ftrst 

letter of March 14 proceeded without leave of Court and is the subject ofthe pending Motion. 

The second letter of March 24 also proceeds without leave of Court; Complaint Counsel has 

again exercised the power reserved to this Court by directing the manner, content, and timing of 

Michel's subpoena response. Such interference with a subpoena response by an adverse party 

has long been held sanctionable misconduct for the reasons stated in the pending Motion. See, 

e.g., Price v. Trans Union, LLC, 847 F.Supp. 2d 788, 794 (E.D. Pa. 2012). 

This second, additional usurpation of the Administrative Law Judge's subpoena power, 

when taken with the first, is proof cif an intentional assumption of the exclusive province of this 

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PUBLIC 

Court over administrative subpoenas. 1 In particular, the first and second letters establish a 

fundamental violation of the separation of functions doctrine. Here Complaint Counsel 

represents itself as an agent of the Commission to Michel and, unlawfully, combines 

prosecutorial and judicial powers. As a matter of constitutional and administrative law, those 

functions may not be collocated in single hands.2 When Congress enacted the Administrative 

Procedure Act, foremost among the members' concerns was a fear that a collocation of executive 

and judicial power would deprive the accused of due process and a fair trial on the merits 

(enabling the party bringing the charges, the accuser, to sit in judgment of the charges brought, 

thus destroying the impartiality for decision required to attain justice). See Withrow v. Larkin, 

421 U.S. 35,51-52 (1975); Wong YangSungv. McGrath, 339 U.S. 33,46 (1950), modified, 339 

U.S. 908 (1950). The Administrative Procedure Act thus codifies the separation of functions 

doctrine at 5 U.S.C. § 554(d). 

Consequently, to ensure that the independence and authority of the Administrative Law 

Judge over the subpoena power is not compromised, his Honor should render the March 14 and 

24 letters void and henceforth prohibit Complaint Counsel from emailing or contacting the 

subpoena recipient Frederick Michel, which emails presume to dictate the manner, content, and 

timing for response to an administrative subpoena issued by Respondent in this proceeding, and 

this Court should compel immediate production of the requested documents in addition to the 

1 The defense of ignorance, while rarely attractive in the law, is clearly now unavailable 

to Complaint Counsel because its second letter of March 24 (again issued without leave of 

Court) reveals an intentional assertion of the judicial power reserved to this Court for which the 

remedies called for in the Motion remain essential to deter future such abuses. 

2 From the very beginning, separation of powers was deemed a necessary defense against 

tyranny arising from consolidated government: "The accumulation of all powers, legislative, 

executive, and judiciary, in the same hands, whether of one, a few, or many, and whether 

hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." 

The Federalist No. 47, p. 324 (.T. Cooke ed. 1961) (J. Madison). 

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PUBLIC 

other forms of relief requested in the Motion. The precedent arising from a decision that directly 

or tacitly condones Complaint Counsel's subpoena interference will dangerously invite more of 

that practice, institutionalizing the separation of functions doctrine violation and depriving the 

Respondent of the ability to secure evidence in its own defense as a matter of right, rather than at 

the discretion of the prosecutor. 

DATED this 25th day of March 2014. 

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Respectfully submitted, 

Jo than W. Emord (je ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

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PUBLIC 

CERTIFICATE OF SERVICE 

I hereby certify that on March 25, 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 using the FTC's e-filing system: 

DonaldS. 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-11 0 

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 

Jonathan Cohen (jcohen2@,ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-81028 

Washington, D.C. 20580 

Dr. Frederick Michel (michel.36@osu.edu) 

Ohio State University 

207 Hayden Hall 

1680 Madison Ave. 

Wooster, OH 44691 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81028 

Washington, D.C. 20580 

Jan Alan Neiger (neiger.4(a)osu.edu) 

Ohio State University 

Office of Legal Affairs 

1590 North High Street, Suite 500 

Columbus, OH 43201 

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: March 25,2014 

Jonathan W. Emord \ 

4 
5 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

PUBLIC 
PUBLIC 

EXHIBIT RX-J 
Bureau of Consumer Proteelion 

Division of Enforcement 

Matthew Wilshire 

202-326-2976 

mwilshire@ftc.gov 

By Email 

Frederick C. Michel 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

March 24,2014 

The Ohio State University-OARDC 

1680 Madison Ave. 

Wooster, OH 44691 

Re: In the Matter ofECM BioFilms, Inc., Docket No. 9358 

Dear Dr. Michel: 

PUBLIC 

I am writing again regarding the subpoena you received in the above-captioned 

matter. In an earlier, March 14letter regarding the subpoena, I advised that any 

responsive documents that were sent to you by the FTC were subject to a nondisclosure 

agreement That agreement forbids you from disclosing those documents unless the FTC 

General Counsel consents or FTC Staff directs you to do so in connection with an 

adjudicative proceeding. 

In the March 14letter, I instructed that you should produce all FTC 

communications sought by the subpoena, with the exception of materials submitted by 

third parties to the FTC. I further directed you to delay production of those documents 

until March 28,2014 to ensure that those parties have an opportunity to exercise any 

rights they have under the Commission's rules. See 16 C.F.R. § 4.10(g). 

Since that date, one of the third parties, Down to Earth Designs, Inc., has 

indicated that it does not object to production of materials it submitted, provided that 

those materials are marked as confidential pursuant to the protective order entered in this 

matter. Accordingly, I am now instructing you to produce, as soon as reasonably 

practicable, responsive documents submitted by Down to Earth Designs. As with the 

FTC communications you produced on March 17, you should mark these additional 

documents as confidential. 

F..xh. RX-J 

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PUBLIC 

Thank you for your con:tinuing cooperation in this matter. Please contact me with 

any questions. 

Cc: Jonathan W. Emord, Esq. 

Exh. R.X-J 

Katherine Johnson, Esq. 

Jan Alan Neiger, Esq. 

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Matthew J. Wilshire 

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