PUBLIC

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

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RESPONDENT’S MOTION FOR IN CAMERA TREATMENT OF CERTAIN 

PROPOSED TRIAL EXHIBITS

Pursuant to Rule 3.45(b) of the Commission’s Rules of Practice, Respondent ECM 

BioFilms, Inc. (ECM) hereby seeks in camera treatment of various documents that have been 

designated as potential exhibits for trial.1 

INTRODUCTION

On June 11, 2014, Complaint Counsel provided ECM with its final proposed exhibit list, 

containing over 800 proposed exhibits. On June 25, 2014, ECM provided Complaint Counsel 

with its own exhibit list, containing over 450 exhibits. ECM has carefully reviewed these 

exhibits to determine whether they contain confidential and sensitive information that should be 

subject to in camera treatment. While it would be ECM’s preference that the majority of these 

documents be subject to such treatment, ECM understands that only those documents for which

public exposure would likely result in a clear and defined serious injury, or documents 

containing sensitive personal information, can be subject to in camera treatment. To that end, 

ECM respectfully requests that this Court grant in camera treatment to a total of 37 proposed 

1 In accordance with Rule 3.45(e), ECM submits contemporaneously with this Motion all of the 

confidential exhibits identified below to the Office of the Administrative Law Judge. 

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07 11 2014
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exhibits. As explained below and in the Affidavit of Robert Sinclair, attached as Exhibit A, all 

37 of these documents contain truly confidential information, such as customer lists, financial 

information, personal information, and business strategy. 

LEGAL STANDARD

Upon motion, this Court may order that material, or portions thereof, offered into 

evidence be subject to in camera treatment. 16 C.F.R. § 3.45(b). In order to designate material 

for in camera treatment, this Court must find that public disclosure of such material “will likely 

result in a clearly defined, serious injury to the person, partnership, or corporation requesting in 

camera treatment or after finding that the material constitutes sensitive personal information.” 

Id. “The showing may consist of extrinsic evidence or, in certain instances, may be inferred 

from the nature of the documents themselves.” H.P. Hood & Sons, Inc., 58 F.T.C. 1184 (Mar. 

14, 1961). 

In determining whether to grant in camera treatment of certain material, this Court 

weighs the six factors first articulated in Bristol-Myers:

(1) the extent to which the information is known outside of his business; (2) the 

extent to which it is known by employees and others involved in his business; (3) 

the extent of measures taken by him to guard the secrecy of the information; (4) 

the value of the information to him and to his competitors; (5) the amount of 

effort or money expended by him in developing the information; (6) the ease or 

difficulty with which the information could be properly acquired or duplicated by 

others.

Matter of Bristol-Myers Co.. 90 F.T.C. 455 (Nov. 11, 1977). The Commission has since

explained that “serious injury” can mean “[t]he likely loss of business advantages.” Hoechst 

Marion Roussel, Inc., 200 F.T.C. LEXIS at *6. In sum, “[a] party must make a clear showing 

that the information concerned is sufficiently secret and sufficiently material to their business 

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that disclosure would result in serious completive injury.” In the Matter of Polypore Int’l, Inc., 

2011 WL 668505 (Feb. 11, 2011) (citation omitted). 

ARGUMENT

Throughout this litigation, ECM has produced over 116,000 documents to Complaint 

Counsel. Initially, ECM marked all of these products as “confidential.” The 37 documents2

ECM requests in camera treatment for amounts to less than 0.03% of all documents produced by 

ECM. All 37 of these documents contain either information that will either likely result in a 

serious and clearly defined injury to ECM, or material consisting sensitive personal information. 

See Exhibit A.

ECM is a small company with six employees that competes in a competitive plastics 

market. See Exhibit A. It sells additives that render plastic materials biodegradable. See Exhibit 

A. ECM faces intense market competition from companies selling competing technologies each 

trying to elevate their methods of dealing with the issues and disparaging other solutions. See 

Exhibit A. ECM also faces intense competition within the biodegradable additives sector. See 

Exhibit A. 

ECM customers have shown that they are willing to purchase products from ECM 

competitors who FTC has not targeted. See Exhibit A. It is very easy for these customers who 

use products like the ECM additive to switch to a competitor’s product. See Exhibit A. 

 

 

2

 While the list below only contains 32 numbered paragraphs, there are 37 individual exhibits 

contained within those 32 paragraphs. 

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IN CAMERA TREATMENT SHOULD BE GRANTED FOR THE FOLLOWING 

PROPOSED EXHIBITS

1. RX-84. This potential exhibit is an e-mail correspondence between ECM and 3M which 

discusses 3M’s concerns regarding trade secrets. ECM requests that this exhibit remain 

confidential until 8/1/2017.

2. RX-82. This potential exhibit is an e-mail correspondence between ECM and Alchemy 

Additives which discusses ECM’s payment options, shipping arrangements, and terms of 

offering quotes on purchases. ECM requests that this exhibit remain confidential until 8/1/2017.

3. RX-132. This potential exhibit is an e-mail correspondence between ECM and 

Multiplast Systems Inc., which contains specific pricing of the ECM additive. ECM requests that 

this exhibit remain confidential until 8/1/2017. 

4. RX-330 and RX-331. These potential exhibits are ECM’s pricing sheets. ECM requests 

that these exhibits remain confidential until 8/1/2017.

5. CCX-234. This potential exhibit is a list of ECM’s international customers and ECM’s 

sales to these customers by Year 2009–2013. ECM requests that this exhibit remain confidential 

until 8/1/2019. 

6. CCX-322. This potential exhibit contains specific pricing information of the ECM 

additive. ECM requests that this exhibit remain confidential until 8/1/2017.

7. CCX-392. This potential exhibit contains specific pricing information of the ECM 

additive. ECM requests that this exhibit remain confidential until 8/1/2017.

8. CCX-395. This potential exhibit contains specific information on the amount of money 

spent by IMEX Vinyl Packaging in deciding whether to use the ECM additive. ECM requests 

that this exhibit remain confidential until 8/1/2017.

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9. RX-130. This potential exhibit contains a discussion and negotiation between ECM and 

a potential distributor for ECM’s product. ECM requests that this exhibit remain confidential 

until 8/1/2019.

10. RX-134. This potential exhibit contains a discussion of ECM’s customer’s advertising 

strategies. ECM requests that this exhibit remain confidential until 8/1/2017.

11. CCX-305. This potential exhibit contains an e-mail from ECM to FabriTRAK systems, 

Inc. wherein ECM explicitly mentions the size of its customer’s order. ECM requests that this 

exhibit remain confidential until 8/1/2017. 

12. CCX-307. This potential exhibits contain an e-mail correspondence between Down to 

Earth and ECM which discusses advertisement strategy and specific manufacturing processes. 

ECM requests that this exhibit remain confidential until 8/1/2017.

13. CCX-568. This potential exhibit contains information from FP International discussing 

FP International’s customers and their orders of products manufactured with ECM additive. 

ECM requests that this exhibit remain confidential until 8/1/2017.

14. CCX-676. This potential exhibit contains a discussion between ECM and one of its 

distributors on how to obtain specific types of customers. ECM requests that this exhibit remain 

confidential until 8/1/2017.

15. CCX-184. This potential exhibit includes a discussion by Italcom S.r.L. relating to their 

defense against the action brought by AGCM. ECM requests that this exhibit remain 

confidential until 8/1/2017. 

16. RX-106. This potential exhibit is an e-mail from FP International containing FP 

International’s thoughts and analyses surrounding an action by the National Advertising Division 

of the Better Business bureau. ECM requests that this exhibit remain confidential until 8/1/2019.

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17. CCX-216. This potential exhibit is an e-mail from ECM detailing litigation strategy that 

ECM suggests for Colplast. ECM requests that this exhibit remain confidential until 8/1/2017.

18. CCX-408. This potential exhibit contains ordering information, payment information, 

and other sensitive information regarding the contacts between American Plastic Mfg. Inc. and 

ECM. ECM requests that this exhibit remain confidential until 8/1/2017.

19. CCX-410. This potential exhibit contains ordering information, payment information, 

and other sensitive information regarding the contacts between Bio-Tec Environmental, LLC and 

ECM. ECM requests that this exhibit remain confidential until 8/1/2017.

20. CCX-413. This potential exhibit contains ordering information, payment information, 

ordering terms, and other sensitive information regarding the contacts between EcoSmart Plastics

and ECM. ECM requests that this exhibit remain confidential until 8/1/2017.

21. CCX-414. This potential exhibit contains ordering information, payment information, 

personal cell phone numbers, specific ordering terms, and other sensitive information regarding 

the contacts between Hi-De Liners, LLC and ECM. ECM requests that this exhibit remain 

confidential until 8/1/2017.

22. CCX-416. This potential exhibit contains ordering information, payment information, 

personal cell phone numbers, specific ordering terms, and other sensitive information regarding 

the contacts between Hi-De Liners, LLC. and ECM. ECM requests that this exhibit remain 

confidential until 8/1/2017.

23. CCX-417. This potential exhibit contains ordering information, payment information, 

specific ordering terms, and other sensitive information regarding the contacts between Myers 

Industries Lawn and Garden and ECM. ECM requests that this exhibit remain confidential until 

8/1/2017.

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24. CCX-418. This potential exhibit contains ordering information, payment information, 

specific ordering terms, and other sensitive information regarding the contacts between 

PolyFusion LLC and ECM. ECM requests that this exhibit remain confidential until 8/1/2017.

25. CCX-419. This potential exhibit contains ordering information, payment information, 

specific ordering terms, shipping costs, cell phone numbers, UPS account numbers, and other 

sensitive information regarding the contacts between Sealed Air Corporation and ECM. ECM 

requests that this exhibit remain confidential until 8/1/2019.

26. CCX-420. This potential exhibit contains ordering information, payment information, 

specific ordering terms including amounts and costs, and other sensitive information regarding 

the contacts between Automated Packaging Systems Group and ECM. ECM requests that this 

exhibit remain confidential until 8/1/2017.

27. CCX-421. This potential exhibit contains ordering information, payment information, 

specific ordering terms including amounts, and other sensitive information regarding the contacts 

between Bemis PPD and ECM. ECM requests that this exhibit remain confidential until 

8/1/2017.

28. CCX-422. This potential exhibit contains ordering information, payment information, 

specific ordering terms including amounts and prices, and other sensitive information regarding 

the contacts between Shields Bag and Printing Company and ECM. ECM requests that this 

exhibit remain confidential until 8/1/2017.

29. CCX-423. This potential exhibit contains ordering information, payment information, 

specific ordering terms including amounts and prices, and other sensitive information regarding 

the contacts between Westchem, Inc. and ECM. ECM requests that this exhibit remain 

confidential until 8/1/2017.

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30. CCX-429. This potential exhibit contains ordering information, payment information, 

specific ordering terms including amounts and prices, a UPS account number, and other sensitive 

information regarding the contacts between Contempo Card Company and ECM. ECM requests 

that this exhibit remain confidential until 8/1/2019.

31. CCX-647. This potential exhibit contains ordering information, payment information, 

cell phone numbers, and other sensitive information regarding the contacts between Geneva 

Watch Group and ECM. ECM requests that this exhibit remain confidential until 8/1/2017.

32. CCX-813; CCX-816; CCX-818; CCX-819; CCX-820. These potential exhibits are the 

deposition transcripts of ECM employees and executives Robert Sinclair, Kenneth Sullivan, 

Alan Poje, and Thomas Nealis. These transcripts contain confidential information related to 

sales, customers, and other sensitive and personal information. ECM requests that this exhibit 

remain confidential until 8/1/2019.

RELIEF

For the foregoing reasons and the reasons stated in Exhibit A, ECM respectfully requests 

this Court grant in Camera treatment to those exhibits list above. 

Respectfully submitted,

 

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: July 10, 2014

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

 

Docket No. 9358

PUBLIC

[PROPOSED] ORDER GRANTING RESPONDENT ECM BIOFILMS, INC.’S MOTION 

FOR IN CAMERA TREATMENT OF PROPOSED TRIAL EXHIBITS

This matter having come before the Administrative Law Judge on July ___, 2014, upon a 

Motion for In Camera Treatment(“Motion”) filed by Respondent ECM BioFilms, Inc. (“ECM”) 

pursuant to Commission Rule 3.45(b), for an Order to grant in camera treatment to specific 

proposed trial exhibits. 

Having considered ECM’s Motion and all supporting and opposing submissions, and for 

good cause appearing, it is hereby ORDERED that ECM’s Motion is GRANTED; it is 

ORDERED that all of the documents identified by ECM for in camera treatment shall be treated 

as such. 

ORDERED: ______________________

D. Michael Chappell

Chief Administrative Law Judge

Date: 

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CERTIFICATE OF SERVICE

I hereby certify that on July 10, 2014, I caused a true and correct copy of the foregoing to 

be served as follows: 

One electronic copy to the Office of the Secretary through the FTC’s 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 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

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: kjohnson3@ftc.gov

Elisa Jillson

Division of Enfoncement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: ejillson@ftc.gov

Jonathan Cohen

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jcohen2@ftc.gov

Arturo Decastro

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: adescatro@ftc.gov

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

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

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Respectfully submitted,

 

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: Thursday, July 10, 2014

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Respondent's Exhibit A 

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Respondent’s Exhibit B 

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PPC0075 

CONFIDENTIAL-FTC DOCKET No. 9358. 

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PPC0076 

CONFIDENTIAL-FTC DOCKET No. 9358. 

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