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

PUBLIC

RESPONDENT ECM BIOFILM’S SUPPLEMENT TO MOTION FOR SANCTIONS, TO 

EXCLUDE COMPLAINT COUNSEL’S REBUTTAL WITNESS, AND FOR LEAVE TO 

INCLUDE SURREBUTTAL REPORT

Pursuant to Commission Rules 3.22(d) Respondent, ECM BioFilms, Inc. (“ECM”) 

hereby respectfully requests that the Court consider one point of clarification1 in response to 

Complaint Counsel’s above-referenced opposition pleading, filed July 21, 2014. On pages 7-8 of 

their response, Complaint Counsel argued that ECM’s motion to submit a rebuttal report under 

Rule 3.31A(a) was out of time because ECM should have filed, according to Complaint Counsel, 

by July 7, 2014. That point is in error, for the following reasons:

1. Complaint Counsel served ECM with Dr. Frederick Michel’s “rebuttal” report on 

June 30th at 11:46PM Eastern, well after business hours closed. Complaint Counsel then served 

ECM with the mandatory Rule 3.31A(c) information on the morning of July 1, 2014.2 Thus, 

Complaint Counsel completed service of its rebuttal report on July 1, 2014. See 16 C.F.R. 

1 ECM’s opening motion noted that its filing was timely (page 1, footnote 1), but ECM 

now explains in further detail in response to a direct challenge on that point.

2 See Exhibit S to ECM’s opening motion. If anything, therefore, Complaint Counsel’s 

rebuttal report was not timely completed by the June 30, 2014 deadline and that is another basis 

on which to deny Complaint Counsel’s introduction of Dr. Michel as an expert witness.

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3.31A(c) (noting that “each report” shall be accompanied by the “data, materials, or other 

information considered by the witness in forming the opinions...”). 

2. Friday, July 4, 2014, was a federal holiday which did not count against ECM’s 

filing deadline when the period for a response is under 7 days. See 16 C.F.R. § 4.3(a). 

3. Under Rule 4.3(a), the calculation for the time period in question begins “with the 

first business day following that on which the act, event, or development initiating such period of 

time shall have occurred, which, in this case, is July 1, 2014. See 16 C.F.R. § 4.3(a).

4. ECM’s deadline to file its motion for leave under Rules 3.31A(a) and 4.3(a) 

began from July 2, 2014, and the deadline was therefore July 9, 2014, the date upon which ECM 

filed its motion (excluding weekends and holidays).

ECM respectfully requests that the Court receive this information in consideration of the 

motions now pending.

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 21, 2014

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PUBLIC

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 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 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

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

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 Enfoncement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: adecastro@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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PUBLIC

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: July 21, 2014

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