UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF THE AD'MINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc. 

a corporation, also d/b/a 

Enviroplastlcs International 

Respondent 

DOCKET NO. 9358 

MOTION FOR COST REiMBURSEMENT TO 

TII!RD PARTY SUBPOENAED BY RESPONDENTS 

AND AFFIDAVIT OF STEVEN MOJO 

The Biodegradable Products Institute ("BPI'') hereby moves for cost reimbursement 

with respect to locating and producing , documents in compliance with the subpoena served 

upon 1t by Respondents, ECM BioFilms, on or about January 24, 2014. In support thereof 

BPI submits herein the Affidavit of Steven Mojo, the Executive Director BPI 

specifying the costs involved in responding to the subpoena, which include, inter 

alia, invoices from BPI's attomcy who assisted in the response, and tile time 

devoted to such response by Mr. Mojo. 

More specifically: 

1. Respondents directed a subpoena to BPI requesting production of 

documents relating to the Respondent (Exhibit A). 

2. Michael Zall, Counsel for the BPI co11ferred with HPI on numerous 

occasions m January and February, 2014 and had several discussions with 

Respondent's attorney, Jonathan Emord and/or Lou Caputo, clarifying what 

was needeci and lengthy discussions with. Mr. Mojo . BPI produced 4357 pages of 

documents (Exhibit B). 

3. On February 28, 2014, Counsel to BPI, Michael Zall submitted the attached 

invoice for $3260. (Exhibit C) to BPI for services rendered to BPI in responding to the 

Page 1 of4 
subpoena. This invoice was promptly paid by BPI. 

4. Additionally, Mr. Mojo spent about 24 hours of time collecting and reviewing 

documents and transferring them to his Counsel. It is estimated that the costs for his services 

and/or the fair market value is about $50/hour for a total cost of $1200. 

5. On February 20, 2014, Counsel for BPI sent an Invoice for $5060 to Counsel 

for Respondent (Exhibit D). Subsequently there was telephone conversations and 

correspondence between Michael Zall and Counsel for Respondent (Exhibit E). This did not 

result in the payment of such Invoice. 

4. Third party witnesses may be compensated to cover the cost of producing 

voluminous records in response to a subpoena. FTC Manual, §10.13.6.4.7.8. The Federal 

Rules of Civil Procedure may be consulted for guidance and interpretation of FTC rules 

where no other authority exists. FTC Manual, §10.7. FRCP 45 requires the court to protect 

a non-party by requiring the party seeking discovery to bear enough of the expenses of 

complying with a subpoena so that compliance with the subpoena does not impose 

significant expense on the non- party. Linder v. Calero-Portocarrero, 251 F. 3d 178, 182 

(D.C. Cir. 2001). 

WHEREFORE, BPI respectfully requests that an order be entered requmng 

Respondents to reimburse BPI for its costs incun·ed in locating the subpoenaed 

documents, assembling and delivering them to Respondent. 

Page 2 of 4 
The signatory being warned that willful false statements and the like are 

punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, declares 

that all statements made of his own knowledge are true and all statements made on 

information and belief are believed to be true. 

The Biodegradable Products Institute 

By; Steven Mojo, Executive Director 

Box 

Signa

1481 

ture: ~ 

Cotuit, MA 02635 

(774) 521-3202 

exec.director(ill,bpiworld.org 

Page 3 of4 
CERTIFICATE OF SERVICE 

I hereby certifY that on November 13, 2014, a copy of the foregoing Motion For Cost 

Reimbursement was served by overnight courier delivery on: 

Jonathan Emord 

jemord0).emord.com 

Emord & Associates, P.C. 

11808 Wolf Rune Lane 

Clifton, VA 20124 

Phone Number: 202-466-6937 

Fax Number: 202-466-6938 

Peter Arhangelsky 

parhangelsk y(a),emord .com 

Lou Caputo 

lcaputo(Q{emord.com 

Emord & Associates, P.C. 

321 0 S Gilbert Rd Ste 4 

Emord & Associates, P.C. 

Chandler, AZ 85286 

Phone Number: 602-388-8899 

Fax Number: 602-393-4361 

Donald S. Clark 

Office of the Secretary 

Federal Trade Commission 

Room 172 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

D. Michael Chappell 

Chief Administrative Law Judge 

Federal Trade Commission 

Room H-113 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

Page 4 of4 
DOCKET N·o. 9358 

MOTION FOR COST REIMBURSEMENT 

T,O THIRD PARTY SUBPOENA-ED B\T 

RESPONDENTS 

EXHIBIT A 
SUBPOENA DUCES TECUM 

Provided by the Secretary of the Federal Trade Commission. and 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010) 

Biodegradable Products Institute 

331 West 57th Street, Suite 415 

New York, NY 1 0019 

2. FROM 

UNITED STATES OF AMERiCA · 

FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and petm1t Inspection and copying otdesignatad books, documents (as defined 1n 

Rule 3.34(b)), or tangible things, .at the date and time specified in Item 5, and at the request of Counsel listed in Item 9; in 

the proceeding described in Item ~ 

3. Pl..ACE OF PROOUCTION 4. MATERIAL WIU. BE PRODUCED TO 

Emord & Associates, P.C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

~ SUBJECT OF PROCEeDING 

Peter Arhangelsky 

. 5. DATEANOTIMEOFPRODUCTION 

March 3, 2014, 5:00PM EST 

In the matter of ECM BioFilms, Inc., Docket No. 9358 

7. MATERIAl.. TOBE.PROOUca> 

See Attached Schedule A for description of all documents and materials. 

8. ADMINISTAATIVE LAW .AJDGE 

Chief Administrative Law Judge 

D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

DATE SIGNED· 

APPEARANCE 

The deliwry of this subpoena.1o ·,ou by any method 

pr8ICribed by~ ~·Rules of Practice is 

legal wvice and may subject ~tO a penalty 

imposed by law A:Jr fail~~te fD comply. 

MOTION TO UIIIT.OR QUASH 

The Commission's Rules of P~ require that any 

motion to limit or qu8$h this subpoena must comply with 

COrnmis8lon RUle 3.34(c), 16 C.F.R. §. 3..34(c), and in 

partic::ular ~ IJe tiled within U1tJ eatlierof:10 dJiys after 

•rvk:e or fie time for c:omplla~. The original and 1Bn 

copies of the petition muat be filed before the 

Adrni tislralhe l..ir•,.Judge and with the Sec:rer.y of the 

Commission, aoc:omparded by an af&d<Wit of sei'Yice of 

the document ui)on cocinsel kllld 1n ttsm 9, and upon au 

other~ PIWSCribed b)' the ~a of Practioe. 

FTC Fomi70-E (!W, 1197} 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Jonathan W. Emard, Peter Arhangelsky 

Emard & Associates, P.C. for Respondent, 

ECM BioFilms, Inc. 

TRAVEL EXPENSES 

The Commission'• Rules of PractiCe require that feea and 

rnilitage be paid by the pMy that~ your appearance. You should J)le8el1t your clalm to counsel listed in Item 9 for 

payment. If you are pennanently. or temporarny.living 

.omewheJe olher than the ·addles& on this Ulpcena and it 

woufd leqUire exceesive 1rawl fOr yOil to appear, vou must get 

prior approval from counsel ~ in Item 9. · 

A copy of the Commislion's Rules of Practice iS ~aileble 

Of'line at bltP:lM.IylET'CRu!esc)l?rrtire Paper copies are available upon request.· 

This subpoena does· not ,.quint 8ppioval by OMB under 

the Papet'NOik Reduction Pd. of 1980. 
SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

BIODEGRADABLE PRODUCTS INSTITUTE ("BPI") 

INSTRUCTIONS 

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein. 

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C. 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique "Bates" document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 

I. The Federal Trade Commission's Rules ofPractice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

1 
(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3 .3 7, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3 .31 ( c X2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

J. The Federal Trade Commission's Rules ofPractice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of 10 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with· 

§§3.31(cX2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22,2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shaH provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, 14. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. If any requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: {a) 

the item's type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non~privileged portions of the document must be submitted. · 

2 
DESCRIPTION OF DOCUMENTS REQUESTED 

Please produce the original or copies of the following documents (the term "documents" 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, . 

correspondence 1

, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents conceming2 the biodegradability of plastics generally and in 

Municipal Solid Waste Landfills in particular whether or not in the presence of other 

biodegradable material. 

2. All documents concerning ECM BioFilms, Inc. 

3. All correspondence from any BPI employee, member, representative, BPI 

Executive Director Steve Mojo, or Dr. Ramani Narayan, of or concerning ECM BioFilms, Inc. or 

any ofECM's employees, officers, and representatives. 

1 The term "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports 'and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

2 The term "concerning" is intended, used, and defined in its broadest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicating, explaining, or about the documents 

subject to any and all individual requests in this subpoena. 

3 
4. All documents concerning the Federal Trade Commission's ("FTC") "Revised 

Green Guides" published in October 2012 

5. All correspondence between any BPI employee, member, representative ofBPI, 

BPI Executive Director Steve Mojo, or Dr. Ramani Narayan, of, concerning, to, or from the 

Federal Trade Commission or any Fed.eral Trade Commission employee or agent. 

6. All documents concerning or related to any version of the American Society of 

Testing and Materials' ("ASTM'') testing methods 05511 and 05526. 

7. All correspondence between any BPI employee, member, or representative and 

the American Chemistry Council ("ACC"). 

8. All documents concerning the study performed in 2006 by APCO Insight 

("APCO Study") for the ACC concerning public perception of the term "biodegradable" and 

related topics. 

9. All documents concerning or supporting the following statement from the BPI 

website: "The key point is that only a portion of the additive will biodegrade and there is no data 

to show that the remaining 95 to 99% of the plastic package will also biodegrade." See 

Attachment A (BPI webpage: "Background on Biodegradable Additives" at 2. 3 

10. All documents concerning or supporting the following statement from the BPI 

website: "Extrapolation of test data should not be a basis for meeting these criteria." See 

Attachment A at 4 

11. All documents specifically identifying sources for the following statement, and 

concerning or supporting the following statement, from the BPI website: "Further, based on a 

study by the American Chemistry Council, when consumers see the word 'biodegradable' on a 

· 

3 Available at ht1j:>://tinylink.net/070xo (last checked January 21, 2014). 

4 
package, they believe that the package will completely disappear in 12 to 18 months ... " See 

Attachment A at 3. 

12. All documents concerning or related to the defmition of"biologically active 

landfill," ~'biologically inactive landfill" as the terms are used in any and all versions and 

reproductions of ASTM D5511 and D5526. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS 

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

.of the documents4

, and a brief description ofthe nature ofthe work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made and kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of BPI who have knowledge of such matters 

and who can testify to such matters. 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

4 "Document'' and "documents" as used in this Attachment are defined in this subpoena's 

"Description of Documents Requested" section. 

5. 
Respectfully submitted, 

Is/ Jonathan W. Emord 

Jonathan W. Emard, Esq. 

EMORD & ASSOCIATES, P .C. 

11808 WolfRune Lane 

Clifton, VA 20124 

Ph: 202-466-6937 

Fx: 202-466-6938 

Em: jemord@emord.com 

Counsel to ECM BioFilms, Inc. 

6 
B P 1

-Biodegr··.a.dable Products ~ Institute ~ 

Background on 

Biodegradable Additives 

This document summarizes the Biodegradable Products Institute's comments on 

the use of additives to promote "biodegradation" in traditional polymers, such as 

PE, PP, PS and PVC. 

Background 

There are a number of manufacturers who claim that when their products are 

mixed at 1-5°/o concentrations with traditional polymers, the resultant 

formulation/s become "biodegradable". Further, these manufacturers maintain 

that their additives will make polymers "biodegradable" in aerobic environments 

(such as composting and litter), as well as anaerobic environments (typically 

found in landfills). 

Today, these additives .fall into two broad classes , "oxo-biodegradables" and 

"additives with organic materials": 

1. Oxo-biodegradables: These consist of transition metals (some of which are 

regulated) that theoretically foster oxidation and chain scission in plastics 

when exposed to heat, air and/or light. Based over 20 analyses over the past 

4 years by the BPI, these metals include but are not limited to cobalt, 

manganese, magnesium, iron and zinc. The theory behind chain scission is 

that it is supposed to shorten the polymer chains to the point where they can 

be consumed by microorganisms found in the disposal environment and used 

as a food source. 

Research has shown that moisture retards the oxidation process, delaying the 

potential onset of biodegradation. In addition, for landfills, no data has been 

presented to support complete biodegradation in anaerobic environments. 

Testing has shown that in arid climates with sunlight and high heat, oxobiodegradable additives will accelerate the fragmentation of traditional 

polymers. Data has shown that at high temperatures in conjunction with UV 

in arid conditions, that fragmentation can be achieved in 2 to 3 months. 

However, fragmentation is not a sign of "biodegradation" and there is 

no data to show how long these plastic fragments will persist in the soils or 

marine environments. Further, data has also shown that moisture will retard 

this fragmentation process for months or longer. 

From a practical perspective, this means that a plastic bag that is littered in 

the desert will probably fragment in a few months. Yet, these fragments will 

persist for years or longer. Moreover, if the same bag is littered in a cold, 

dark wet forest, it is unlikely that the bag will fragment for months or years. 

Page 1 February 12, 2010 

Attad'lment A, ECM BioFilms, Inc. Subpoena to BPI 
EPI (EPI Environmental Technologies), Wells/Bioxo, Addiflex, Symphony are 

some of the suppliers of oxo-biodegradable additives. However, some 

converters using these additives do not cite specific manufacturers. Rather, 

they may say that they are using "oxo-biodegradable" concentrates or 

additives. 

2. Additives with Organic Materials: In this class of materials, some portion 

of the additive itself will biodegrade and generate carbon dioxide or methane. 

The biodegradable portion of the additive pellets can be natural materials, 

such as cellulose and starch or it can consist of resins, which are known to 

biodegrade, such as 81 A or PVOH. The key point is that only a oortion of the 

additive will biodegrade and there is no data to show that the remaining 95 

to 99% of· the plastic package will also biodegrade. In some ways, this class 

of additives is similar to the original "biodegradable plastics" where the starch 

would biodegrade and the remaining plastic just fragmented. 

Based on data that the BPI has reviewed, manufacturers with this type of 

technology include (but are not limited to) ECM Biofilms, Bio-Tec 

Environmental's EcoPure, BioBatch, Green Rims and Good Earth. 

Latest Labeling Developments: 

Claims by additive suppliers are difficult to interpret, as they typically quote a 

variety of ASTM tests· and other documents. 

Given the increasing level of claims, (many of which are unsupported), the State 

of California has decided to step in, by passing 2 pieces of legislation. These 

pertain to plastic bags and foodservice items (both paper and plastic) and 

became effective in January, 2009. The impact of this legislation is to make the 

use of the labels "biodegradable" and "degradable" more rigorous. Further, in 

order to use the term "compostable" plastic bags and foodservice Items must 

meet either ASTM 06400 or 06868. 

• ASTM 06400: Standard Specification for Compostable Plastics 

• ASTM 06868: Standard Specification for Biodegradable Plastics 

Used as Coatings on Paper and Other Compostable Substrates 

Additionally, the Federal Trade Commission (FfC) requires that prior to making 

any unqualified ~biodegradable" claims, that suppliers have scientific data to 

prove: 

1) That the entire product (not just the additive) will biodegrade into 

elements found in nature; 

2) In a short period time after customary disposal (which is landfilling for 

most plastics). 

Page2 February 12, 2010 

Attachment A, ECM BioFilms, Inc. Subpoena to BPI 
Additionally on June 9, 2009, the FTC found that Kmart's claims of 

biodegradability of paper plates was misleading. Further, they questioned the 

ability of any materials to biodegrade in a landfill. 

"Mr. Davis of the F. T. C. raised doubts. 11Maybe a piece of produce could 

be labeled biodegradable if it~ customarily disposed of through 

composting, "he said, "but the statistics show that most household trash 

goes to landfills. So even a piece of produce might not biodegrade" in a 

reasonable period of tim~ he explained. " 

Source: htt;p:/lqreenincbloas.avtimes.cam/2009106/11/ttc-sends-stem-waminq-on-biodegrar/able-marketinq· 

c!ainW?scp=3&sa-biQ{/egriJdable%20ftc&st=Search 

Further, based on a study by the American Chemistry Council, when consumers 

see the word "biodegradable" on a package, they believe that the package will 

completely disappear in 12 to 18 months, no matter where it is thrown · away 

(either in landfills, streams or as litter). Consumers think nothing will be left at 

the end of the process. 

Science of Biodegradation: 

Biodegradation takes place when microorganisms utilize carbon substrates to 

extract chemical energy that drives their life processes. The carbon substrates 

become ''food", which microorganisms use to sustain themselves. Under aerobic 

conditions, the carbon is biologically oxidized to carbon dioxide inside the cell 

releasing energy that is harnessed by the microorganisms for its life processes. 

Under anaerobic conditions, COz + Methane are produced. Thus, a measure of 

the rate and amount of C02 or C02+CH4 evolved as a function of total ·carbon 

input to the process is a direct measure of the amount of carbon substrate being 

utilized by the microorganism (percent biodegradation). This forms the basis for 

various National (ASTM, EN) and international (ISO) standards for measuring 

biodegradability or microbial utilization of chemicals, and biodegradable plastics 

Remmmendations for purchasing and packaging professionals 

Given consumer expectations, the FfC's direction and new California legislation, 

the BPI recommends that organizations wishing to use "biodegradable additives" 

ask the suppliers for the "scientific data" to address the following questions: 

1) For "compostable" products, does the entire application (film or package). 

meet all the requirements of ASTM 06400 or ASTM 06868? 

2) For "marine biodegradable", does the entire application (film or package) 

meet all the requirements of ASTM 7081? 

3) There are no ASTM specifications that dictate the overall level of 

biodegradation that must be achieved to make other "biodegradable" 

claims. However, the BPI recommends that the supplier demonstrate that 

90% of the entire plastic film or package (not just the additive) be 

converted to carbon dioxide under aerobic conditions (like soil burial) or 

carbon dioxide and methane under anaerobic conditions (as in an 

anaerobic digester, or a landfill) based upon weight and carbon content 

Page3 February 12, 2010 

Attachment A, ECM BioFilms, Inc. Subpoena to BPI 
I 

relative to the positive control using the following internationally 

recognized test methods as shown below: 

Claim Appropriate Recommendecl Pass/Fail Threshold Time 

Test Limit 

Methods 

... Biodegradable" ASTM 05526 Based on correspondence to the BPI from the FTC, it is likely that 

or "Biodegrades or any unqualified "biodegradable" claim will be judged as deceptive, 

in a Landfill" ASfM 05511 regardless of the testing data. 

(anaerobic or httg;l£www ftc gQV£QS£ad gro[g93 §£091218d~DS!Iett~ gdf 

environment) ASTM 06776 

"Biodegrades in landfills" claims are not recommended given recent FTC finding~. 

"Biodegrades in ASTM 05988 90% conversion of test materials carbon to carbon dioxide 12 18 

Soils" or as relative to the positive control in the test months 

Utter 

Aerobic 

environment 

Note: Only one of the test methods needs to be used to verify the "brodegrades" or landfill 

claims. 

The 90% threshold relative to the positive control will insure that the entire 

plastic product can be consumed by the microbes (i.e. biodegraded) with no 

persistent residues. Additionally, the following conditions must be met: 

• The positive control shall reach a minimum of 70% biodegradation as 

. specified in the test method. 

• Both the test and control samples must reach plateaus during the test. 

These plateaus represent the maximum level of biodegradation achieved. 

• Extrapolation of test data should not be a basis for meeting these criteria. 

• Test samples should not be subjected to "pre-conditioning" to promote or 

accelerate oxidation or degradation (such as high heat under dry 

conditions for long periods of time), especially for landfill claims. 

• Manufacturers shall make all test reports available for review by interested 

parties. 

Below are 2 charts the depict examples of what is expected when data is 

presented. 

toO 

OOtr---~~~~~~ --

.§ t~ +---- -JE 

i ... .. ........ ·-········-·-.. ··- .. 

f"~ --~~------ --~~~--

Page4 February 12, 20 10 

Attachment A. ECM BioFHms, Inc. Subpoena to BPI 
Comments on Biodegradation in Landfills 

Manufacturers should understand that biodegradation that takes place in landfills 

can generate fugitive methane emissions which contribute to greenhouse gas 

production and climate change. Methane is 25 times more powerful as a 

greenhouse gas than carbon dioxide. 

Additionally, the US Federal Trade Commission ruled on June 9, 2009 that 

"biodegradable" claims on paper plates were misleading, as noted earlier in this 

document. This direction was reinforced in a letter to the BPI in December, 2010, 

which stated it is likely that any unqualified "biodegradable" claim will be judged 

as deceptive, regardless of the testing data. The complete letter can be found at 

the link below: 

htto://www.ftc.gov/os/adjpro/d9336/091218dynaletter.pdf 

For these reasons, the BPI supports the diversion from· landfills of all potentially 

"biodegradable" materials. 

Where to turn if you have questions: 

The BPI will be happy to review and comment on any data provided to buyers, 

or packaging professionals by additive suppliers. (email: info@bpiworld.org). 

Page 5 February 12, 2010 

Attachment A, ECM BioFUms, Inc. Subpoena to BPI 
UNITED STATES OF Al\1ERICA 

FEI>ERAL TRADE COMMISSION 

OFFICE OF ADMINISTRA TlVE LAW JUDGES 

In the Matter of 

ECM BioFilms, lt;J.c., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3 .31 (d) states: "In order-to protect the parties and third parties 

against.improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.31 (d). Pursuant to Commission Rule 3.31 (d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

ORDERED: 

D. Michael C'all 

Chief Administrative Law Judge 

Date: October 22, 2013 
ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned wa:tt~r against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defmed. 

1. As used in this Order, «confidential material" shall refer to any document or port~on 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

infonnation. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number,. financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification.number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored inf01mation in the possession of a party or a third 

party. ''Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf; excluding persons 

retained as consUltants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning docwnents in the poss~sion of the Commission, 

as well as any infonnation taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including docl.Uilents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy ofthis Order so as to inform each such third party of hls, her, or its rights 

herein. 

5. A designation of confidentiality :Shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidelltial znaterial as defined in Paragraph 1 of this Order. 

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6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation ''CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of the document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as conf1dential by 

placing the designation .. CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents. may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge; the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter~ (c) outside· counsel of 

record for any respondent, their associated attorneys and other employees of their law 

fmn(s). provi.ded they are not employees of a respondent; (d) anyone retained to assist 

outside.counsel in the preparation or hearing oft.1.is proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agree.ment to abide by the tenns of the protective .order; and (e) any witness or deponent 

who may hav~ authored or received the information in question. 

8. Disclosure of confidential materialto any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserVe the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(f) and 21 ofthe Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that arty confidential material is contained in. any pleading, motion. exhibit 

. or other paper filed or to be filed with .the Secretary of the Co:mrnlssion, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including themateriaJs in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contajned in the papers shall continue to have in camera 

treatment until further order ofthe Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential mat~rial. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the fom1erly protected material. 

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10. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion With the Administrative Law Judge within 5 days after it receives 

such notice. Except where. such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such doc:ument or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the .subnti.tter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 1 0 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itselfto any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Coll11llission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability of Rule 4.11(e) of the Commission's 

Rules of Practice, 16 CFR 4.11 (e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

prep(!Iation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review~ the parties shall return documents obtained in this action to their 

submitters, provided, however. that the Commission's obligation to return documents 

shall be governed by the provisions ofRule 4.12 of the Rules of Practice, 16 CFR4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written ~nnission of the 

submitter or further order ofthe Commission, continue to be binding after the conclusion 

ofthis proceeding. 

4 

I. 
DOCKET NO. 9358 

MOTION FOR COST REIMBURSEMENT 

TO THIRD PARTY SUBPOENAED BY 

RESPONDENTS 

EXHIBITB 
2l&ahael 

ATTORNEY AT 

e. 

LAW 

Zaff-~----~--~ 

INTELLECTUAL PROPERTY 

PATENTS 

TRADEMARKS 

COPYRIGHTS 

Lou Caputo 

Jonathan W. Emord 

Emord & Associates, .P .C. 

3210Soutb Gilbert Road, Suite 4 

Chandler. AZ 85286 

.iemord@emord.com 

LCaputoC&en1ord.com 

Februt~.ry 13, 2014 

TWO YORKSHIRE DRIVE 

SUFFERN, NEW YORK 10901 

Tel: (845) 357"8800 

Fax:. (845) 3S746l6. 

E-mqil: Mtke@Zaii-Law.com 

www2all-Law,com 

Re: FTCv ECM BioFilms, Inc. (Docket No. 9358) 

Subpeona Duces T.ecum Biodegradable Products Institute 

Gentlemen: 

Responsive to the Subpeona Duces Tecv.m to Biodegradable Products Institute, attached 

is a copy of our response. This response, along with flash drives (2) having pdf copies of aU of 

the responsive dqcuments (BPl#s 000001 through 0004357), has beene Express Mailed to you 

(Tracking# 80003 1544 0199). 

If you have any questions, cannot open the drives or need additional information,. ple&se 

do noth~sitate to call. 

Please note, although this has been sent for next day deli"ery, we have very heavy snow 

situation in New York. I suspect it will arrive in several days. 

Very truly ypurs, 

7-1 l 

, [I , .

/. (/'/. .'fl£' .. '. ; iJ'/ . jr. ,.J . .t-· . ' ·· , 

Mitiiael E. Zall 
DOCKET NO . . 93·58 

MOTION FOR CO·ST REIMBURSEMENT 

TO THIRD PARTY SUBPOENAED BY 

RESPONDENTS 

EXHIBITC 
~c£ael0. Za/1--------------------

ATTORNEY AT LAW 

Fein#90-0868590 

Mr. Steven Mojo 

Gala tech 

PO Box 1481 

Cotuit, MA 0263 5 

5.0-083 New License Agreement 

6,0-12 ECM BioFilms 

February 28, 2013 

February 2014 Invoice 

TWO YORKSHIRE DRIVE 

SUFFERN, NEW YORK 10901 

Tel: (845) 357-6800 

Fax: (845} 357-4616 

E-mai:: Mike@Zaii-Law.com 

www.Zafi-Law.com 

02/04 & 05-Review subpoena, tel call to Emord & Assoc., review court documents, tel 

conference with SM. (2) 

02/06-Tel confwith SM, review BPI article, correspondence to client (3/4) 

02/10-Review documents, unlock secure documents, convert to PDFs, 

and organize. (3) 

02/11-Prepare draft response, corresp. To SM (l.S) 

02/12-Prepare draft response, corresp. To SM (3.5) 

02/13-Finalize response, correspondence toECM attorney, 

research recompensation. (3) 

Federal Express charge 

TOTAL DUE $ 

$3200. 

$ 60. 
DOCKET NO. ·9358 

MOTION FO.R COST REIMBURSEMENT 

TO THIRD PARTY SlTBPOENAED BY 

RESPONDENTS 

EXHIBITD 
!]J{;e:hae/0. 

ATIOANEYAT LAW 

Za/1- ----~ 

INTELLECTUAL PROPERTY 

PATENTS. 

TRADEMARKS 

COPYRIGHTS 

Lou Caput\> 

Jonathan W. Emord 

Emard & Assoc·iates, P.C. 

321 0 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

February 20, 2014 

Re! FTC. v ECM BioFilms. In.c. (Docket N.o. 9358) 

TWO YORKSHIRE DRIVE 

SUFFERN, NEW YORK 10901 

Tel: (845) 357"(380Q 

F~x: (~45) 357·4616 

E-mail: Mike@Zafi-Law com 

www.ZaJI-law.com 

Invoice for d:ocument collection and arganization for Subpeona Duces Tecum 

Biodegradable Products Institute 

Date 

02/04 

&05 

02/()6 

02110 

02/11 

02/12 

02113 

Attorlley Fees, Michael E. Zall (02/.04~()2/13) 

.De$cription 

Review subpoena, tel cali to Emotd & Assm~., review court documents; 

tele conference with SM 

Tele conf with SM, revieW BPI article, correspondence to client 

Review documents, unlock secure documents; convert to PDFs, and 

organize, 

Prepare draft response, correspond~nce toSM 

· Prepare draft response, correspondence to SM 

Finahze res.[l_onse, correspondence. to ECM attorney, legal research 

Total14.25 Hours. @ $225/Hr. (discounted rate) 

BPI time (02/0Z - 02/13) 

Steven Mojo 24 hrs. @ $50Jhour 

Federal Express charge 

$3200. 

Hrs . 

2 

.75 

3 

1.5 

3.5 

3.5 

$1800 

$60.00 

TOTAL DUE $5060. 
DOCKET NO . 9358 

MOTION FOR COST REIMBURSEMENT 

TO THIRD PARTY SITBPOENAED BY 

RESPONDENTS 

EXHIBITE 
Mike tall 

From: 

Sent:. 

To: 

Su.bjeq: 

R~indf:tt after our conve,rsatiol). 

Mlke Zall <mike@,zall-law.com> 

Tuesday; March 201412.23 PM 

'lciu Caputo' 

RE BPUNVOICE 

Michael E. Zall 

Attorney 

lntellectu<li Property&. Corporate Tran~adions 

Two Yorkshfre [>rive 

. S1Jff~rn, 'NY 1Q9.01 

Office! (845) ~57-6800 

Mobile:· (914) 589-48l8 

Fax: (845) 357-4616. 

Mike@Zall-Law.co:m 

www .Zall-law.com 

Frqm: Mike ZC!II [ffiS!iltG mJke@zall~law.com] 

Sent:. Monday, Mar~h 10, 2014 9:18AM · 

To: 'Lou Cap~to' 

s ·ubject: RE: BPI INVQICE. 

Remindei. 

Michael E . . Zall 

Attorney 
Intellectual Property & Corporate Transactions 

Two Yorkshire Drive 

Suffern, NV 10901 

Qffiee: (845} 3 57-6800 

Mobile: {914) 589~4828 

Fax: (845) ~57-4616 

Mil<e@Zaii-Law.com 

www.ZaJlwlaw .com 

From: Mike Zall [mailto; mike@zaiHaw com] 

Sent: Friday, February 21, 2014 1:08PM 

To: 'Lou Caputo' 

Subj~ct: RE: BPI INVO:r<::E 

Attached is a Supplemental and adju~ted Invoice for $5060, 

Michael E. Zall Attorn~y 

Intellectual Property & Corporate Tran~actions 

Two Yorkshire Drive 

Suffern, NV 10901 

Office: (845) 357-6800 

Mobile: [914) 589-4828 

Fax: {845} 357~4616 

Mike@Zaii-Law.com 

2 
Frorn: Lou Caputo [mailto:LCaputo@emord.coml 

Sent:: Thursday, February 20; 2014 2:52PM 

TQ.; Mike Zall . 

SubJect: RE: BPI INVQICE 

Hi Mike, 

Can you pleas~ send over anlnv()ice that indud~s an itemization of the costs in<;urreq? 

Thank you very much, 

Lou 

Lou Caputo 1 EMORD s, AssoCIATEs, P.C. 1 ~2~0 S. ::;jlbert Rc., Ste 4 j Ghandle~, AZ. B6~86 r-1rrn. (8021 388-8'3011 

Faq:,:~mlie: (602) 393-4361 l www. emord com 

NOiiCE: This 1s :t conftdi::n!ial wmrnunic3!ior. •nt"nde.d for the· ~~iplt>tlt listed above The i;onteht o~ this .::cirnmunrca!i&r 1s prlllededfro!TI disclosure 

i:ly tiiO! o;ftorne-v~r:li.,nt t'rivilegt< a~d th.- worf: p;c·.iuct uoctririe It yot- ar~ not the .nte d.,~i redprer.t fOt: sh<:uld trer;t ill:"' .:-ommu.!ication liS stn·~!ly 

confidential ;l.ntJ provsae ;t to !he .:'efs(•n ltl!ei,ded. [!upli,~?..ttcm o~dl;;tnbutlon of t;lls t:limm•Jn•!-ar.on 1s pi oi)JbiieC: b~· t~e "<P.i'der If \l-115 IXlm!'lUniC:anrJn 

tl~sl:'<ee-:'1 sent to you in J:c•r-,r, piease: t'·:l!JI:J lhe ':.t~fldef ;~.nd tt)en i:'lmedl·ateiy 'lestroythe OO"t:me~t. 

Fro111: Mikl:! Zall [mailto:mike@zaiHaw.coml 

Sent: Thursday, February 2:0,2014 9:37AM 

To: Lou Caputo 

Subject: BPl INVOICE 

Lou: 

Attached is.BPI's invoice.forthe collection and organization of documents Please·send the check to me, 

mad~ out to lrzternatv)nal Biodegradable Product Institute. 

Thanky<m. 

Michael E .. Zall 

Attorney 

Intellectual Property ~ Corporate Transaction$ 

Two Yorkshire Drive 

suffern, NY 10901 

Office: (845) 357.,6800 

3