ORIGINAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

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Docket No. 9358 

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COMPLAINT COUNSEL'S RESPONSE TO RESPONDENT'S CROSS~MOTION TO 

MODIFY PROTECTIVE ORDER 

ECM's Cross-Motion indicates, for the first time, that Mr. Sinclair will not merely be 

attending, but plans to conduct portions of the depositions himself. See Resp. at 3. Even if the 

Court modifies the Protective Order (which it should not for the reasons explained below), it 

should not allow Mr. Sinclair to appear both pro se and by counsel in this case. 1 Respondent 

offers no authority for such "hybrid" representation in the administrative context. Such dual 

representation implicates a number of troubling ethical issues, such as communication with a 

represented party and possible violation of the lawyer-as-witness rule. Allowing Mr. Sinclair to 

"attend the deposition, conduct a deposition, or even represent ECM at the hearing," when he 

already has counsel, and when he is a primary witness would be disruptive and complicate the 

depositions and these proceedings generally. See CX-A (Email from Respondent's Counsel). 

Complaint Counsel objects to ECM's request to modify the Protective Order as 

unnecessary and unworkable. If the documents contain competitively sensitive information, then 

the materials should not be disclosed to ECM-particularly without notice to the third party that 

relied on the Protective Order in responding to Complaint Counsel's subpoena.2 If the 

documents are materials that have been authored or received by ECM, then the standing order 

The Commission Rules authorize corporate representatives to appear on their own behalf. See Commission 

Rule 4.l(a)(2). But Respondent chose to appear by counsel. See Notice of Appearance filed November 1, 2013 

(identifying Jonathan Emord, Peter Arhangelsky, and Lou Caputo as counsel and not listing a corporate 

representative). 

2 We note that Respondent did not attempt to meet and confer with Complaint Counsel under Rule 3.22 

before filing its cross-motion to modify the Protective Order. 
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already provides for their disclosure to ECM even if they have been marked confidential. See 

Protective Order~ 7(e). 

CONCLUSION 

For these reasons, we respectfully request the Court deny Respondent's cross motion. 

Dated: April23, 2014 Respectfully submitted, 

Is/ Katherine Johnson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -3001 

Fax: 202-326-2551 

MEET AND CONFER CERTIFICATION 

Complaint Counsel conferred with opposing counsel in a good faith effort to resolve by 

agreement the issues raised by the opposition and cross-motion, but the parties were unable to 

reach such an agreement. The conference took place by email on April23, 2014. Katherine 

Johnson participated on Complaint Counsel's behalf Peter Arhangelsky participated on ECM's 

behalf. 

DATED: April 23, 2014 

2 

Is/ Katherine Johnson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551 ; -3001 

Fax: 202-326-2551 
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CERTIFICATE OF SERVICE 

I hereby certify that on April 23, 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, and one copy through the FTC's e-filing system: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secreta;-v(a)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 the Respondent: 

Jonathan W. Emard 

Emard & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emard & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emard & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

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

document that is available for review by the parties and the adjudicator. 

Date: April23, 2014 

3 

Is/ Katherine Johnson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen Gcohen2@ftc.gov) 

Elisa Jillson ( ej illson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551 ; -3001 

Fax: 202-326-2551 
Complaint Counsel 

Exhibit A 

CX-A 
From: 

To: 

Cc: 

Subject: 

Date: 

Hi Katherine, 

~· Arl· Al.C·12Y 

Johnson Katberine 

Cohen. Jonathan: .l!!§Q~ oat~.1n Err:or1; l.Ql.!...C'lQlili\_ 

RE: Dkt No. 9358, In re ECM BioFilms 

Wednesday, April 23, 2014 1:26:54 PM 

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Bob will be appearing at the depositions with plenary authority to represent the corporation under 

Rule 4.1(a)(2)(i). As we have stated, he will excuse himself from the deposition room for any 

testimony involving Attorneys Eyes Only information, at which point we are prepared to participClte 

in a narrow capacity by ~el ephone so that ECM remains represented at al! times in t he deposition. 

We do not expect that to occur often, if at all. FP International and Island Bags have already 

represented that they would waive the "confidential" issue for the limited purpose of their 

depositions. We have yet to reach the remain in::; parties, but we hope t o receive similar feedback. 

As you rightly observed in your motion on Monday, FTC Rule 4.1(a) changes the traditional principle 

that corporations must be represented by counsel. We think that rule clearly permits Bob to a:tend 

the deposition, conduct a depositi on, or even represent ECM at the :1earing. Th e rule gives him all 

the authority that we, as ECM's counsel, currently have. Furthermore, there is no corresponding 

rule that limits a party to just one attorney or representative during an adjudication. In fact , the 

rules even allow for an expert to question another expert witness "in an adj t.:d icative proceeding." 

See Rule 4.1(a)(2)(ii). Certainly if that non-party, non-lawyer witness can participate, so can Bob as 

ECM's President and CEO. 

If you prefer to discuss this I am available today, however we consider this issue fully briefed before 

the Court. Concerning your ethical coilcerns, we take no position as we cannot opine or advise you 

on those matters. We do note, however, that the et:l ical rul2s are subject to exceptions. For 

instance, D.C. Rule 4.2 proh:bits communication with a represented party "unless the lawyer has the 

prior consent of th8 lawyer representing such other person or is authorized by law or a court order 

t o do so." If Bob chooses to appear prose at the depositions, it would certainly appear that ECI\II 

and its counsel have consentea to your communication with Bob as an advocate. Nonetheless, 

please rote t hat any such consent is !imited to Bob's appearance at the deposition, and ECM 

remains represented by outside counsel for all other matters in this case. 

Best, 

Peter A. Arhongelsky, Esq. I EMoRo &. A ssociATES, P.C. I 3210 S. Gilbert Rd., Ste 4 I Chandler, AZ 

85286 

Firm: (602) 388-8899 I Direct: (602) 334-4416 1 Facs;mile: (602) 393-4361 I www emord.com 

NOWT This is a confidential communication intended for th·.) recipient listed above. The content of rhis 

communication is protected from d'sclosure by thG attorney-cbnt privilege and tho work product doc•rine. If 

you are not lh·J intended recipient. you should treat this communication as strk::tly confidential and provide it to 

the p2rson intended. Duplication or distribution o f this communication is prohibited by I he sender. If this 

communication has be<: n sent to you in error. p:ease notify the sender and ohen imrnedioiE:Iy c:eslroy the 

CCX-A at 1 
document. 

From: Johnson, Katheri ne [.m.ail\0:; joh so 3Cffi: r: .~:Q'L] 

Sent: Wednesday, April 23, 2014 6:45AM 

To: Peter Arhangelsky 

Cc: Cohen, Jonathan; Jil lson, Elisa; Lou Caputo; Jonathan Emard 

Subject: RE: Dkt No. 9358, In re ECM BioFilms 

Peter, 

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If I understand the response correctly, Mr. Sinclair will be representing himself, pro se, for the nonconfidential portions of the depositions? If so, can you please point us to what authority you 

believe allows a litigant to appear both pm se and by counsel in an administrative proceeding? 

Obviously, if Mr. Sinclair appears prose at the depositions, it will raise a variety of issues, not the 

least of which would be those related to ethical issues related to us communicating with a litigant 

who is represented by cou nsel. 

Please advise so that we can have a meet and confer about this today if necessary. 

Katherine 

Katherine E. Johnson, Attorney 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81028 

Washington, DC 20580 

Direct Dial: (202) 326-2185 

Fax: (202) 326-2558 

Email: kjohnsoo3@ftc.9Q.ll 

From: Peter Arhangelsky [.mail!x.PAI:hangelsl<'y@emord .com] 

Sent: Tuesday, April 22, 2014 4:21 PM 

To: Johnson, Katherine 

Cc: Cohen, Jonathan; Jillson, Elisa; Lou Caputo; Jonathan Emard 

Subject: Dkt No. 9358, In re ECM BioFilms 

Counsel: 

Please see the attached confidential filing. 

Sincerely, 

Peter A. Arhangelsky, Esq. I EMoRo & AssocrATEs, P.C. I 32 10 S. Gilbert Rd., Ste 4 1 Chandle r, AZ 

85286 

Firm: (602) 388-8899 1 Direct: (602} 334-4416 I Fac simile: (602) 393-4361 1 www.emord com 

CCX-Aat2 
PUBLIC DOCUMENT 

tlQTIU: This is a confidential communication intended for the recipient listed above. The content of lhis 

communication is protected from disclosure by the attorney-client privilege and the work product doctrine. If 

you are not the intended recipient. you should treat this communication as strictly confidential and provide it to 

the person intended. Duplication or distribution of this communication is prohibited by the sender. If this 

communication has been sent to you in error, please notify the sender and then immediately destroy the 

document. 

CCX-A at 3