PUBLIC DOCUMENT

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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

RESPONDENT ECM BIOFILM’S MOTION IN LIMINE AND MEMORANDUM IN

SUPPORT TO EXCLUDE DOCUMENTS CONCERNING THE EUROPEAN

COLPLAST LITIGATION

Pursuant to 16 C.F.R. § 3.43 and the Scheduling Order, Respondent ECM BioFilms

(“ECM”) hereby moves this Court to bar two documents from being admitted into evidence.1 

The documents relate to litigation that occurred in Europe between two private non-parties who

are not directly related to ECM, Colplast S.R.L., an Italian company, and SPEED France S.A.S.,

a French company. The first document is a French tribunal’s decision (“French decision”) on

Colplast’s advertising as related to the University of Milan and a 12–36 month biodegradability

claim.2 ECM has never made that claim. The French decision fails to cite to any scientific tests,

any testimony, or any evidence. This decision is therefore irrelevant, unreliable, and immaterial

because it is based on different facts, applies different law, and is based on an unknown and

 

1 While there are only two court documents at issue in this motion, both of these documents have

been translated for potential use in this litigation. So, ECM requests that the originals and their

respective translations be deemed inadmissible. 

2

The originals and translated documents regarding this French decision are identified in

Complaint Counsel’s proposed exhibit list as CCX-177–CC-179. 

07 14 2014
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necessarily incomplete evidentiary record. Moreover, while it has no probative value, it is highly

prejudicial. 

The second document is a settlement agreement from German litigation (“German

settlement”) between Colplast and Speed France that appears to arise out of similar litigation as

that in the French decision.

3

This document is also irrelevant because it only contains the terms

of the settlement. Again, it contains no legal or evidentiary support for the settlement agreement

and therefore has no probative value in this case.

Both documents should be barred because they are irrelevant, immaterial, and unreliable. 

Neither document discloses the testimony or documents upon which they were based. Both are

predicated upon foreign facts and foreign law not at issue in this case. Further, neither document

discloses what evidence was considered. And, any evidence that was considered was necessarily

truncated and incomplete when compared to the directly relevant record for the case sub judice.

4

 

In the alternative, even if either the French decision or German settlement is deemed to

have some remote degree of relevance, that scintilla of relevance is substantially outweighed by

a danger of prejudice, and by considerations of undue delay, waste of time, and/or needless

burden to the record. If the Court decides to allow either of these documents into evidence, a

minitrial would follow in order to determine what those documents largely fail to disclose—the

specific facts, law and precedent applied, and the evidence considered. So, not only would the

consideration of the two foreign documents cause ECM substantial prejudice, but would also

invite retrial of matters not germane to the parties, the current dispute, the law governing that

 

3

The originals and translated documents regarding this German settlement are identified in

Complaint Counsel’s proposed exhibit list as CCX-180 and CCX-181.

4

ECM approximates that between ECM, Complaint Counsel, and third parties, more than

250,000 documents have been disclosed in this case. 
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dispute, or the facts germane to that dispute. Accordingly, it would be a distraction, a detour and

frolic, and it would cause undue delay and waste of the parties’ and Court’s time and resources.

BACKGROUND

Complaint Counsel proposes to include documents from French and German tribunals. 

See RX-A; RX-B. Both the French decision and German settlement seemingly mandate that an

Italian company, Colplast S.R.L., must refrain from engaging in certain advertising as related to

the biodegradability of their plastic products. See RX-A; RX-B.5 Id. Colplast is not, and has

never been, ECM’s customer, but was a customer of ECM’s customer Italcom S.R.L. See RX-C. 

Both the French and German litigations were initiated not by any governmental agency, as is the

case here, but by Colplast’s competitor, Speed France S.A.S. See RX-A; RX-B.

As an initial matter, the French decision fails to identify what documents the tribunal

considered, what testimony the tribunal considered, and what tests Colplast had at its disposal to

support its claim. See RX-A. The decision also lacks any discussion of the scientific bases for

the tribunal’s holding, and only states, in a conclusory fashion, that Colplast’s claim “is not

supported by scientific tests.” See RX-A. In addition, in the “Discussion” section, the French

tribunal failed to consider certain exhibits for procedural reasons. See RX-A.

The French decision—while brief and void of any substantive scientific discussion—

appears to be based, in part, on Article 2 of law no. 94-665 of August 4, 1994, which mandates

the use of the French language in promotional materials. See RX-A. In addition, the decision

held that the Colplast website contained false advertisements “with respect to: the reference of

the University of MILAN, which appears misleading and false [and] the mention of the 100%

 

5

These decisions, initially rendered in French and German, respectively, have been translated

into English. ECM includes both the original and translated versions of the decision as exhibits. 
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biodegradability between 12 and 36 months . . .” Complaint Counsel does not contest the fact

that ECM made neither of those claims. See generally Complaint. Lastly, the decision itself

explicitly acknowledges that Colplast only “violate[d] the regulation applicable in France.” See

RX-A.

Like the French action, the German action was initiated not by any governmental entity,

but by Speed France SAS. See RX-B. That document is merely a settlement agreed to by the

private parties. See RX-B. The settlement document, unsurprisingly, contains only the terms of

the settlement between the two private parties, and the vast majority of the document is dedicated

to listing all of the specific advertising claims that Colplast agreed not to use in future. See RXB. This settlement has no discussion of any issues relevant to this case, such as the testing

relating to products manufactured with the ECM additive, or consumers’ perception of ECM’s

marketing, or the claims recited in Complaint Counsel’s complaint. See RX-B.

ARGUMENT

This Court should exclude evidence that is “irrelevant, immaterial, and unreliable.” 16

C.F.R. § 3.43(b). Even if evidence is relevant, it “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or if the

evidence would be misleading, or based on considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Id. The foreign documents should be excluded

because they are irrelevant, immaterial, and unreliable as a result of being devoid of any legal or

scientific reasoning and because they are based on facts and law not at issue in this case. 

Further, even if the foreign documents have a scintilla of probative value, that value is
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substantially outweighed by the substantial prejudice ECM will suffer from a mini hearing based

on the foreign documents introduced at trial. 

A. The foreign documents are irrelevant, immaterial, and unreliable because they

are based on facts, laws, and an evidentiary record different from this case. 

The facts upon which the French decision and German settlement were based are in issue

here. For example, the French case concerned only Colplast’s marketing regarding the

University of Milan and Colplast’s marketing regarding a 12–36 month biodegradability claim—

neither claim was made by ECM. See RX-A. It even appears that the decision was based, at

least in part, on Colplast’s lack of use of the French language in its marketing. Id. Complaint

Counsel makes no claim that ECM made the marketing claims, relating to either the University

of Milan or the 12–36 month biodegradation claim, which Colplast allegedly made. See

generally Complaint. As such, the French decision, based on facts absent in this case, is wholly

irrelevant. Further, the German settlement appears to be a private settlement between two parties

that made no legal or factual findings, and therefore has no relevance in this case. See RX-B. 

Second, the foreign decisions were obviously based on law that is not applied in this

proceeding. As mentioned before, the French decision explicitly acknowledges the Colplast only

“violate[d] the regulation applicable in France.” See RX-A. We must also assume that Colplast

settled in the German litigation because of those laws applicable to that proceeding. Therefore,

both the German and French litigation are irrelevant, immaterial, and unreliable as they are both

based on non-parties, foreign law and foreign facts not present in this case. 

The foreign decisions are also unreliable, irrelevant and immaterial because of the

presumably different record the courts and parties had before them in those cases and the vastly

different laws at issue. ECM, Complaint Counsel, and third parties have supplied hundreds of

thousands of documents during the extensive discovery process in this case. Indeed, this
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discovery has revealed tests that even ECM was not aware of prior to this litigation. This Court

will have the benefit of a well-developed and extensive record, to say the least.6 Colplast, an

Italian company could not have had the extensive testing that ECM relies upon in this case, such

as the favorable independent testing from laboratories such as Northeast Laboratories and Eden

Labs. Therefore, any decision or settlement reached in a case with such a significantly more

truncated record can have no relevance to this case.

B. Any minute value or relevance that the foreign documents have to this

proceeding is substantially outweighed by the danger of unfair prejudice, and by

considerations of undue delay, waste of time, and/or needless presentation of

cumulative evidence.

This Court previously excluded a decision by the European Commission in a similar

proceeding because the EU’s decision’s probative value was “substantially outweighed by the

danger of unfair prejudice, and by considerations of undue delay, waste of time, and/or needless

presentation of cumulative evidence. “ .In the Matter of Intel Corp., 2010 WL 1989988, at *6

(F.T.C. May 6, 2010). There, the Court explained even relevant and trustworthy evidence should

be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice,

and by considerations of undue delay, waste of time, and/or needless presentation of cumulative

evidence.” Id. 

The foreign cases should be excluded because their probative value—if any—is

substantially outweighed by unfair prejudice to ECM, and because their admissibility would

result in undue delay and a waste of time. “The purpose of this proceeding is to litigate the

Complaint issued by the FTC,” and not the foreign cases. Intel Corp., 2010 WL 1989988, at *6. 

Allowing Complaint Counsel to introduce the foreign documents would necessarily result in a

 

6 Based on the proposed exhibit lists supplied by both parties, there could be over 1,500 exhibits

introduced at trial. 
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minitrial. Should Complaint Counsel intend that exhibit as evidence concerning the efficacy of

ECM’s product, or the effect of Colplast’s marketing on consumers, ECM would need to expend

resources to determine what evidence Colplast and Speed France introduced into that

proceeding. ECM would also need to expend the resources determining what laws applied in

that case, and how they are interpreted in the context of biodegradable products. That would

necessary draw the parties and the court on a detour and frolic leading far afield from the

relevant facts and law that will determine the outcome of this case.

In addition, trial courts have broad discretion to prohibit a party from introducing

evidence that is likely to confuse the issues. See Deviner v. Electrolux Motor, AB, 844 F.2d 769,

774 (11th Cir. 1988). In Deviner, the appellate court upheld the trial court’s decision to exclude

documents relating to Swedish law and the effects in Sweden of that law, because it was well

within the district court’s discretion to avoid the confusion that would arise if Swedish law was

introduced. Id. at 773–74. Similarly, allowing the foreign documents into evidence would result

in confusion here, as the legal standards at issue and scientific standards for biodegradability

from those operative in the United States. 

Furthermore, regarding the unfair prejudice that ECM would suffer should these foreign

documents be considered, it is well documented that prior acts by the same defendant are

inadmissible to prove that the defendant acted illegally in the current case. See, e.g., Jordan v.

City of Chicago, 2011 WL 6119147, at *2 (N.D. Ill. Dec. 8, 2011) (holding that evidence of the

defendants’ “prior arrests [were] inadmissible because the danger of

unfair prejudice substantially outweigh[ed] what little probative value these arrests ha[d].”)

(citing Fed. R. Evid. 403; Cruz v. Safford, 579 F.3d 840, 845 (7th Cir.2009); Young v. County of

Cook, , 2009 WL 2231782, at *6 (N.D. Ill. July 27, 2009)). This type of prejudice is even more
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severe in this case, where ECM was not the prior bad actor and did not sell its product to the

party accused; rather the party accused of violating European law purchased the product from a

separate, independent corporate buyer not charged in either case. See RX-C. Therefore, not only

would a minitrial result if the two foreign documents are allowed into evidence, but ECM would

suffer prejudice because of an independent party’s decision to agree to a settlement and because

of that independent party’s loss before the French tribunal based on unrelated facts, on an

unknown evidentiary record, and under foreign scientific and legal standards having no

relevance in the United States. 

RELIEF

Based on the foregoing reasons, ECM respectfully requests that this Court exclude from

evidence Complaint Counsel’s proposed exhibits CCX-177–CCX-181.

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 14, 2014.
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STATEMENT CONCERNING MEET AND CONFER

Pursuant to Rule 3.22(g), 21 C.F.R. § 3.22(g), the undersigned counsel certifies that, on

July 3, 214, Respondent’s counsel conferred via telephone with Complaint Counsel in a good

faith effort to resolve by agreement the issues raised in the foregoing Motion. The parties have

been unable to reach an agreement on the issues raised in the attached motion.

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
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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

IN LIMINE IN SUPPORT TO EXCLUDE DOCUMENTS CONCERNING THE

EUROPEAN COLPLAST LITIGATION

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

Motion in Limine to Exclude Documents Concerning the European Colplast Litigation, filed by

Respondent ECM BioFilms, Inc. (“ECM”) pursuant to Commission Rule 3.43 and the

Scheduling Order. 

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; Proposed trial

exhibits identified as CCX-177–CCX-181 are deemed inadmissible and shall not be considered

at the hearing in this case. 

ORDERED: ______________________

D. Michael Chappell

Chief Administrative Law Judge

Date:
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CERTIFICATE OF SERVICE

I hereby certify that on July 14, 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

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 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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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 14, 2014
RX-A
20 l3R00004 • 13 10100003/1

EXCERPT FROM THE MINUTES OF THE CLERK OF THE COURT

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

VILLEFRANCHE COMMERCIAL COURT [Tribunal de 

Commerce] TARARE

04/11/2013 ORDER DATED APRIL ELEVENTH, TWO THOUSAND THIRTEEN

A summons dated January 4, 2013 brought the case before the court for urgent

proceedings.

Docket 

no.

2013R4

The case was heard at the urgent interim hearing on March 14, 2013, at which 

sat:

- Mr. René CHAMBOST, President, 

assisted by:

- Ms. Emmanuelle DONJON, Court Clerk,

after which the President discussed it to hand down this decision on this day.

BETWEEN: the company SPEED FRANCE S.A.S.

53 RUE DE CHAVANNE

PARC D'ACTIVITÉ D'ARNAS

BP 245

69658 ARNAS CEDEX

PLAINTIFF - represented by

Member of the Bar Isabelle FOILLARD, Attorney,

144 AVENUE DE LA LIBERATION - BP 100 69654 VILLEFRANCHE-SURSAONE, counsel,

and by Member of the Bar A. COVILLARD, replaced by Member of the Bar 

GUIBERTEAU, Attorney with the firm LAMY & ASSOCIES,

40 RUE DE BONNEL 69484 LYONS CEDEX 03, trial attorney

AND - the Company COLPLAST, Company under Italian law,

16 VIA S ALBERTO

31059 ZERO BRENCO TREVISO ITALY

DEFENDANT - represented by

Member of the Bar Sandra DORIZON,

46 RUE DE BASSANO 75008 PARIS, replaced by Member of the Bar 

ValentinaPILIA

Clerk of the Court’s fees included in the expenses (Art. 701 of the CPC): €39.52 excluding tax, 

€7.75 VAT, €47.26 including all tax

Execution copy issued on 04/11/2013 to Member of the Bar A. COVILLARD (LYONS) Attorney 

with LAMY & ASSOCIES,
1

2013R00004 - 131010000312

STATEMENT OF PARTIES’ FACTS, PROCEDURES AND 

GROUNDS 

Following a writ dated January 31, 2013, to which reference is made for further explanation, the

Company SPEED France summoned the Company COLPLAST in urgent proceedings in order to

In light of Articles 872 and 873 of the Code of Civil Procedure,

In light of Articles L. 121-1 and following the Consumer Code,

In light of Law no. 94-665 dated August 4, 1994,

- State that the contentious information included on the product package marketed under 

the BIOFIL brand and the advertisements in relation thereto violate the regulation 

applicable to advertising inasmuch as it constitutes false and/or misleading allegations,

Consequently, and due to the offense of competing unfairly and the clearly unlawful interference

resulting therefrom:

Enjoin COLPLAST from continuing or resuming, directly or indirectly, the distribution 

of any of those advertising materials, in any form whatsoever and subject to a permanent 

penalty of 5,000.00 Euros per document distributed in violation of the decision.

Order COLPLAST to take back all copies of the products sold in the contested 

packaging, currently in the possession of end users or its distributors, and more generally 

all copies of any objects and documents on which the contentious information appears, so 

that they may be destroyed together with those of all existing inventories of packaging 

and promotional material, in any location whatsoever, within eight days of issuance of 

the order, subject to a penalty of 5,000 Euros per day late in the performance of that 

obligation.

State that these recall and destruction operations will be carried out at the expense of 

COLPLAST under the oversight of any bailiff that the President of the Court chooses to 

appoint. The bailiff also has the mission of determining the number of copies of the 

documents actually distributed by comparing the number of copies taken and destroyed 

and the number of packages produced and the number of useful documents such as 

quotations, orders, press proofs, delivery slips by COLPLAST, the bailiff being required 

to send a copy of his certified report to the SPEED France Company.

Order the publication of the intervention order, at the expense of COLPLAST, in five 

daily papers or weekly or monthly magazines, to be chosen by SPEED France, for 5,000 

Euros per publication excluding tax, at COLPLAST's expense.

Order the publication of the intervention order on the home page of the BIOFIL 

product’s website at the address accessible on the date the Order was issued for a period 

of two months.

Order the publication of the intervention order on the home page of the COLPLAST 

website at the address accessible on the date the order was issued, for a period of two 

months.
2013R00004 -

1310100003/3

- Reserve the right to oversee payment of the penalties ordered.

Order COLPLAST to pay SPEED France the sum of

5,000.00 Euros pursuant to Article 700 of the Code of Civil Procedure, as well as all costs of the 

proceedings.

- Order COLPLAST, in case the intervention decision is enforced, to pay compensation 

equivalent to the proportional tax for which the process server deems the creditor responsible

pursuant to Article 10 of Decree 2001-212 dated March 8, 2001.

- State that the order will be enforceable upon presentation of the court order.

It is in this state that the case was called at the hearing on February 14, 2013.

After referral, the case was sent to the Hearing on March 14, 2013, where the parties 

appeared as stated above and after hearing their explanations, the President placed the case in 

deliberation until today.

Whereas Member of the Bar GUIBERTEAU, replacing Member of the Bar 

COVILLARD on behalf of SPEED FRANCE S.A.S., reiterates the findings of the writ 

of summons and, and by way of making reference to conclusions for further information, 

refutes the arguments by his opponent, in particular, preliminarily, on the objection to

jurisdiction raised by COLPLAST, that the territorial jurisdiction of the VILLEFRANCHE -

TARARE Commercial Court is incontestable inasmuch as in the case at hand, the 

interference that must be ended, as well as the injury suffered and the provisional 

measures, are all located on French territory and that furthermore, the location where the 

injury was suffered, or at the very least "the harmful consequences of the alleged 

actions," can be the registered office of the plaintiff

Member of the Bar GUIBERTEAU finds this exception to be purely dilatory 

and requests the full benefit of his writ of summons, increasing his request pursuant to 

Article 700 of the CPC to the sum of 10,000.00 Euros.

Whereas Member of the Bar Sandra DORIZON, replaced by Member of the Bar

PILIA on behalf of COLPLAST, through pleadings in defense no. 2 to which reference 

is made for further information, opposes the request on the particular grounds that:

> pursuant to Article 2 of EC regulation no. 44/2001 on judicial jurisdiction and the 

execution of judgments, only the Italian court can hear the dispute between the 

parties.

> the requests by SPEED France are not founded and fall under the jurisdiction of 

the trial judge inasmuch as SPEED France has not demonstrated any urgency and 

COLPLAST is raising a serious dispute.

Me DORIZON pleads: 

Preliminarily:

In light of Regulation EC 44/2001,
1 •

2013R00004 • 131010003/4

- A declaration of lack of jurisdiction in favor of the Treviso Court,

Primarily,

In light of Article 873 of the Code of Civil Procedure,

- Recognize that the request by SPEED France is not justified by any clearly unlawful interference.

Recognize that the grounds and claims of SPEED France are seriously debatable.

Reject all of the claims of SPEED France.

In any case,

Order SPEED France to pay the sum of 7,000 Euros to COLPLAST pursuant to Article 700 

of the Code of Civil Procedure.

- Order it to pay all costs.

DISCUSSION

Preliminarily, there is cause to note that the jurisdiction of this urgent applications judge to 

establish the existence of a clearly unlawful interference in the matter at hand is not contested by 

any of the parties, and that that fact should therefore be recognized.

Whereas although the translation of exhibits 16 and 17 into French, which was requested, 

reached us during the deliberations initially scheduled, it should be noted that the posthearing submissions that were authorized did not reach us until after expiration of that 

period and were sent only by fax, and will therefore not be taken into consideration.

On the lack of jurisdiction exception raised by the defendant:

Whereas Regulation EC no. 44/2001 dated December 22, 2000 relative to judicial jurisdiction in 

civil and commercial matters provides, in Article 5 thereof, that "A person domiciled in a 

Member State may be sued in another Member State... for matters relating to tort, or liability for 

negligence before the court in the place where the harmful event occurred or may occur."

The principle is similar in French law (Article 46 of the Code of Civil Procedure),

That, according to established precedents, the place where the injury was suffered, or the 

injury from the alleged events occurred, may be the plaintiff's registered office.

In the case at hand, the urgent applications judge is being asked to put an end to a clearly unlawful 

interference, and the resulting injury due to non-compliance with French law, by ordering 

measures located exclusively on French territory;

Consequently, the lack of jurisdiction exception raised by the defendant will be rejected.
2013R00004 • 1310100003/5

Regarding the clearly unlawful nature of the actions by COLPLAST Srl

Whereas the urgent applications judge notes that:

- COLPLAST has not proven that all of the BIOFIL products that it delivered in France 

were in packaging conforming with French regulations, and particularly the language 

in which the information is provided on that packaging, which must be the French 

language;

The use of another language is unlawful, since Article 2 of law no. 94-665 of August 4, 

1994 relative to the use of the French language stipulates that “the use of the French 

language is mandatory in the designation, promotion, display, user guides or instructions, 

description of the scope and warranty conditions for a good, product, or service, as well as 

the invoices and receipts.” These provisions are applicable to goods, products, and 

services marketed in France, irrespective of their origin.

Some of that same information provided on that same packaging and/or used on 

the COLPLAST WEBSITE biofilm.org constitutes false advertising, in particular 

with respect to:

> the reference to the University of MILAN, which appears misleading and false,

>the mention of the 100% biodegradability rate between 12 and 36 months is not 

supported by scientific tests, but rather through an improper and ill-suited

mathematical extrapolation; 

Whereas this approach is unlawful in terms of Articles L. 120-1 and following articles of the 

Consumer Code, declaring that any false advertising or advertising that may mislead the 

consumer is prohibited and constitutes an unfair business practice.

Whereas it has also been noted that COLPLAST and SPEED France are competing companies 

inasmuch as they target the same Clients (manufacturers, distributors, and brush cutters users) 

for similar products; it is well-established case law that failure of a company to comply with a 

legal or regulatory obligation leads to a breach in the equality of the competitive struggle and 

places the party violating that regulation in an abnormally favorable situation with respect to its 

competitors;

Whereas the breach in the equality between two competitors caused by the unlawful actions of 

COLPLAST with respect to SPEED France necessarily cause injury to SPEED France and 

justifies that protective measures be taken, which alone can put a stop to the clearly unlawful 

interference thus established and so to prevent any imminent injury;

Whereas, however, COLPLAST has submitted its exhibit no. 21, "sales forecast" for the 

record, which indicates revenue of €65,000 for 2012 (€32,000 of which is for just the area 

made up of Belgium, the Netherlands, Luxembourg and France), SPEED France
2013R00004 - 1310100003/6

did not contest these figures, and in light of the level of these revenues, there is no

cause to proportion the requested measures.

Whereas there is cause to reject all of the other requests and grounds of the parties as being 

unfounded or inoperative;

Whereas SPEED France only initiated this procedure after issuing a formal notice to 

COLPLAST to cease its unlawful actions and the latter responded with a flat refusal, it

would therefore clearly be inequitable to require SPEED France to bear the costs it was 

forced to incur to defend its interests, and it should be awarded the sum of 7,000.00 

Euros under Article 700 of the Code of Civil Procedure,

Whereas the costs will be borne by the losing party. 

Whereas by law, the order is enforceable as of pronouncement.

ON THESE GROUNDS,

THE PRESIDENT, assisted by the Court Clerk,

RULING PUBLICLY in Urgent Proceedings by Order, HEARING BOTH 

PARTIES IN FIRST INSTANCE , after discussions,

In light of the aforementioned summons,

In light of the explanations by the parties and the exhibits 

submitted to the proceedings, 

In light of Article 873, paragraph 1 of the Code of Civil Procedure,

In light of Articles L. 120-1 and following articles of the Consumer 

Code, 

In light of Article L. 213-1 of the Consumer Code,

In light of law no. 94-665 of August 4, 1994,

In light of Article 700 of the Code of Civil Procedure, 

REJECTING all other requests,

ACKNOWLEDGES to the parties that they do not contest the jurisdiction of this 

urgent applications judge to establish the existence of a clearly unlawful interference in 

the matter at hand,

REJECTS the lack of jurisdiction exception raised in favor of an Italian court, 

CONSEQUENTLY,

DECLARES THAT IT HAS JURISDICTION,
2013R00004 - 1310100003/7

RECOGNIZES that some of the contentious information provided on the 

product packaging marketed under the BIOFIL brand and on related advertising

on the, biofil.org website violates the regulation applicable in France, in particular inasmuch 

as it constitutes false and/or misleading allegations constituting unfair competition

and clearly unlawful interference resulting therefrom,

CONSEQUENTLY,

ENJOINS COLPLAST from continuing or resuming, directly or indirectly, the 

distribution of any of the advertising materials, in any form whatsoever and 

subject to a permanent penalty of 500.00 Euros per document distributed in 

violation of this decision, until it has complied with the French regulation.

ORDERS COLPLAST to take back all copies of products sold that exist in the 

contentious packaging, currently in the possession of end users or its 

distributors, and more generally all copies of all objects and documents on 

which the contentious information appears, so that they may be destroyed jointly 

with those of all existing inventories of packaging and promotional materials, in any

location whatsoever, within eight days of issuance of the order, subject to a penalty of

1,000 Euros per day late in the performance of this obligation,

STATES AND RULES that unless it demonstrates the payment thereof by any 

sworn third parties (by document written or translated into French) at the 

hearing on the payment of penalties, COLPLAST may be required to pay the 

amount of the resulting penalties from the end of the above period until the 

hearing;

ORDERS the publication of this ORDER in two daily papers or

weekly or monthly magazines, to be chosen by SPEED France, for

3,000 Euros per publication excluding tax, at COLPLAST's expense,

ORDERS the publication of this order on the home page of BIOFIL product’s 

website at the address accessible on the date the Order is issued, for a period of two 

months.

ORDERS the publication of this Order on the home page of the COLPLAST 

website at the address accessible on the date the order is issued, for a period of two 

months.

RESERVES the right to settle the payment of the penalties thus ordered and REFERS the parties 

to that end to the urgent summons hearing on May 16, 2013, at 11:00 in Room C,

ORDERS COLPLAST to pay SPEED France the sum

of 7,000.00 Euros pursuant to Article 700 of the Code of Civil Procedure,

ORDERS COPLAST to pay all costs of these proceedings in regards to this Order in the 

amount of 47.26 Euros inclusive of all tax.

STATES that this order is automatically enforceable after pronouncement.
' 1

2013$00004 - 1310100003/8

Thus judged and ordered

The signatures follow:

• Mr. CHAMBOST René, President

• Ms. DONJON Emmanuelle, Clerk of the Court

ACCORDINGLY, THE FRENCH REPUBLIC MANDATES AND ORDERS:

• ALL BAILIFFS, CALLED UPON HERETOFORE, TO ENFORCE 

THIS DECISION,

·ALL ASSISTANT PUBLIC PROSECUTORS AND PUBLIC PROSECUTORS AT 

THE HIGH COURT TO PROVIDE SUPPORT AS NECESSARY,

·ALL LAW ENFORCEMENT COMMANDERS AND OFFICERS TO ASSIST 

WHEN LEGALLY REQUIRED,

Collated execution COPY, certified true copy, 

containing 8 pages and issued in enforceable form

Clerk of the Court:
















RX-B
31 0 

434/13

Certified copy

Regional Court, 

Cologne 

Decision

in the case

RECEIVED

10 MAR 2014 

Erl GB

between Speed France SAS, Parc d'Activities, 53 Rue de Chavanne 69658 

Arnas, France

("the 

Plaintiff")

Authorized representative: Rechtsanwalte Loschelder, 

Limited Partnership,

11 Konrad-Adenauer-Ufer, 50668 

Cologne, a g a i n s t

Colplast S.R.L., 16 via S. Alberto, 31059 Zero Branco (TV), ltaly,

(“Defendant”)

Authorized representative: Rechtsanwalte Preu, Bohlig & 

Partner, 11a Leopoldstr., 80802 

Munich,

it is established that between the parties, the following

settlement

has been concluded:
(

1. The Defendant shall be obliged to refrain from advertising or from 

arranging the advertising, in a commercial context for the purpose of 

competition for trimmer cords in the Federal Republic of Germany

a) using the slogan “The first 100% biologically degradable nylon 

thread” and/or

b) using the slogan “The first professional nylon thread, combining 

the high mechanical properties such as strength, flexibility and 

wear resistance with the ecological properties of complete 

biological wear resistance” and/or

c) using the slogan “Biologically degradable synthetic product in 

accordance with EU Directive and Council Directive 94/62/EC in 

accordance with the test procedure for biological degradability in 

accordance with UNI EN 14855” and/or
d) using the slogan “Protocol with the title 'Determining the complete aerobically biological 

degradation of synthetic materials under controlled composting conditions'” and/or

e) using the slogan “Certificate No. 142/BIO/180/11. Issued by the Institute “Ecologia 

Applicata at the University of Milano” and/or

f) using the slogan “47% biologically degradable within 6 months. 100% within 12 - 36 

months” 

if this takes place as stated on the following product packaging:

·
and/or

g) using the slogan “The technology from BIOFIL is currently the only one able to solve the 

problem of biological degradability without disturbing human or animal food resources” 

and/or

h) using the slogan “Biologically degradable synthetic in accordance with EU Directive 

94/62/EC. Confirmation of the biological degradability in accordance with the protocol 

“Decision on the overall biological degradation under controlled composting 

conditions UNI EN ISO 14855” and/or

i) using the slogan “Certificate No. 142/BIO/180/11. Issued by the scientific Organization for 

Environmental Research “Ecologia Applicata”at the ,“Universita degli studi di Milano” 

and/or

j) using the slogan “BIOFIL independently converts itself into water, carbon dioxide, minerals 

and biomass through the action of micro-organisms” ;

if this takes place as stated in the following brochure:

and/or

k) with the following miniaturized “Certificate founded on biodegradation test No. 

142/bio/180/11

The Defendant is also obliged, for each future culpable contravention of any of the above 

obligations, to pay to the Plaintiff a penalty the amount of which is to be determined at the Plaintiff's 

discretion and examined by the competent court in the event of dispute.

2. For statements and illustrations on the websitewww.biofil.org, the obligations under art. 1 

shall not apply until 1 April 2014.

3. The Defendant shall pay the Plaintiff the sum of EUR 8,430.00 by 31 May 2014.

4. The Defendant shall, due to the circumstances of the case LG Köln 31 O 434/13, make no claim 

against “Biofil” products suppliers in the Federal Republic of Germany before 1 August 2014.

5. This settlement shall cover all claims and counterclaims by the parties under life circumstances based 

on the case LG Köln 31 O 434/13.

6. The Defendant shall bear the costs of the case LG Köln 31 O 434/13. The Plaintiff shall, in view 

of art. 3, make no claim for its legal and extra-legal expenses except for court fees.

7. The place of jurisdiction for all disputes from and into connection with this agreement shall be 

Cologne.
- - 9-

The sum in dispute in these proceedings and the settlement have been set at 

EUR 180,000.00

The date of the ruling on 20 March 2014 has been repealed. 

Cologne , 28 February 2014

31st Civil Division

Kehl

Presiding Judge at the 

Regional Court

Dr Bruhns

Judge at the Regional 

Court

Judge 

Kowalewsky

[Stamp: Regional Court, Cologne]

[Illegible Signature]

Michels, Legal Assistant

as Court Registrar









RX-C
Colplast SRL

10/8/2012

4:44 PM

Rec'd call from Francesco who said he is customer of italcom having problems over there and would really like to speak to Bob. Bob 

ws not available took msg for call back

He realizes he has to buy from Italcom but they are not helpful in getting him testing he needs for products w/ Nylon.

He would really like a call back in the mornign our time he will be in office all day.

He also provided a mobile number in database.

He says competitors are coming against them and no support from Italcom. He is very worried and just wants to talk to the mfg.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 KM

Treviso, Zero Branco Italy

10/9/2012

11:16 AM

Phoned for Bob. Re: testing w/ nylon. He has results of his testing but needs more. Competitors are moving against them w/ legal 

action. Wants as much proof as possible. Asked if we have tested w/ nylon? Yes but only internal - qualititative - anareobie & 

aerobic & eco studies. Final results positive. His results 46% in 6 months. Has been asking Italcom but has nothing. Asked Bob for 

something in writing. Bob went back to ours were only internal. Still asking for email summary. Purchased 100 kg in 2012 - expect 

1000 kg next year. This is introductory year. - He's very optimistic. Europe this year. Nex year Japan & North America. Customers 

having doubts based on competitors. Lawyer sending letter to customer threatening legal action if they sell. Bob telling him not to 

worry about oxo. He says he's worried about the French. Lots of $ to put to legal action & very well known name. Wants to stop 

them before they proceed w/ legal action. Gave Bob email address.

He has american distributor visiting tomorrow. Asked Bob for info today. Bob says busy but will get to him late tonight. He says OK. 

Bob says he will do what he can.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

10/10/2012

1:48 PM

Email from Bob to Francesco Berton

w/ Biodeg cert Colplast & blank customer cert attached.

Bob is sorry that he left the office last night without having taken care of his request. He knows info was time sensative and Bob let 

him down. Bob cannot apologize enough.

Attached is copy of our Customer Cert that his co must print, sign & return. This certifies that products will be mfg to our requirements.

Normally the Cert of Biodeg would not be issued until the signed Cust Cert has been returned but in the interest of providing him with 

as much info as possible in a timely manner, we have issued it. 

He also wants to assure Berton that ECM has performed internal testing on various base resins, incluing nylon, combined w/ ECM. 

This testing was qualitiative in nature and was performed anaerobically as well as aerobically. This testing as well as the eco-studies 

performed showed positive results regarding the biodeg and eco-safety of the product.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

2:54 PM

Email from Francesco Berton to Bob.

He will send back the letter ASAP

He believes in ECM otherwise they would never have invested so much in ads & marketing.

He would like any specific evidence or reports on our qualitative tests on nylon.

Evidence would be appreciated for commercial and legal if it possible to use for that purpose otherwise they will keep it internal and 

confidential. Will make them feel safer that what they are doing is correct and legal.

Wants the contact info for a lab in the US that can do biodeg testing. What is the most common test for the US? This will help them 

convince their US distributor who is scared by info from the competition.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

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1/24/2013

12:57 PM

FYI - 

Email from Chiara Busato to Bob FYI - Francesco Berton

She just called & left message w/ Kristen. Met Bob at exibition in Milan last May. Partner of Italcom. Aware the situation has 

changed and would like to know how ECM will proceed w/ sales channel. Their customers received email from Bob.

Their customer, Colplast, contacted ECM w/ no reply asking for a copy of biodeg test made in the US. Customer had endured stops 

from European competitors and now has to attend a court meeting in France because they don't believe ECM is working.

Colplast did testing by Broglio and repleated the test in another lab. Says ECM not working.. They had asked Italcom for testing but 

never got it.

Asks if Bob knows how hard it is to promote ECM in Italy.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 RS

Treviso, Zero Branco Italy

1:59 PM

cc Email from Chiara Busato to Bob. Cc: Francesco Berton, Enrico Busato

(Nothing attached)

Per your phone conversation, she is sending Bob the biodeg reports from Ecologia Applicata Prof Broglio and Stanzione 

Sperimentale Carta from Milan customer Colplast.

Ecologia Applicata reports the customer test reaches 46.67% of biodeg in 180 days while the rport of Stanzione Sperimentale della 

Carta reach 11% after 91 days. Test was stopped as lab techs advised it would go no further.

Both tests were 1% ECM using 14855 but have totally different results.

Colplast's competitors in Germany & France are putting pressure on Colplast to stop distribution. His distributors have received 

notice that there will be a judgement. Berton, owner of Colplast is willing to demonstrate to his French competitor, Speed France that 

it is biodeg and will try to sue his competitor for ruining Colplast's image.

Wants the testing we have from our US labs.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

1/25/2013

2:17 PM

cc Email from Chaira Busato to Bob. ccL Enrico Busato, Berton of Colplast

Mr. Berton of Colplast received formal notice from the court of Lyon France to participate at the court meeting on 2/14 in Lyon.

Is there any possibility to receive the report of biodeg w/ ECM & polyammide made in the US to demonstrate biodeg?

Time is short - have to act quickly.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

1/28/2013

11:47 AM

cc Email from Chiara Busato to Bob. Cc: Francesco of Colplast & E Busato

w/ SSCCPPR2011.PDF, Microsoft_Word_-_REPORT_Colplast n 142_defubutuvo[1].pdf, SSCCPBR2010.pdf attached.

Re: ECM in Italy - report of Colplast - formal notice received from Lyon court France

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

1/29/2013

9:05 AM

cc: 

Email from Bob to Enrico Busato CC: Francesco Berton, and E Busato.

Told them that Bob reivewed the docs. There is no question that each test reports demonstrates true biodeg of the polymer substrates 

tesetd. Just a matter of time and ambient conditions and will fully biodeg. The test methodology is not well designed. We are

completeing work on a new methodology. 

Once I see what the precise legal action is will be able to advise. Your client has plenty of evidence to support a claim of biodeg.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 KM

Treviso, Zero Branco Italy

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1/30/2013

11:20 AM

Bob and CS received 6 emails w/ a total of 17 attachments - 

Re: Colplast, Broglio, Speed France.

It seems Speed France is suing Colplast, the manufacturer of plastic yarn w/ ECM.

Jeanie's notes:

Speed France has an oxo version of plastic yarn. Speed France had their lab CNET do testing on Colplast yarn. I believe they did 

some sort of test to see what ingredients were in Colplast yarn - not biodeg testing. Speed France's attorney sent letter saying yarn 

cannot be biodeg w/ only 1% organic starch. It also seems the Speed France lawyer is mis-reading Colplast website regarding the 

EU standards and what Colplast is actually stating. Also they say the Berton of Colplast was informed of these things at some GAFA 

Fair in September and did not deny or provide explanation. (I guess in Europe this is an admission of guilt??) Tedasche responded 

for Colplast setting them straight and educating Speed France. Also told them to email all of the Colplast customers they had 

contacted to retract what they said.

There also seems to be an issue w/ Broglio and if he is actually affiliated w/ the University of Milan in some way. He says he is the 

Scientific Coordinator of ESAE srl and ESAE srl is a spin-off of the University of Milan (it is per the University's website).

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

2/1/2013

3:59 PM

cc:

Email from Bob to Chiara Busato CC: Enrico Busato and Francesco Berton of Colplast.

There were to reports attached to your email

We need to see actual lab reports and msg stating not to continue w/ testing. Also need to see actual court papers.

When I can eval these dos should take no more than a day to give recommendations.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 KM

Treviso, Zero Branco Italy

2/6/2013

11:11 AM

CC: Email from Chiara Busato to Bob w/ Attachments entitled piece 12 and piece 13

cc: Francesco of Colplast and Enrico Busato

Asks if Bob has any news to communicate to Mr. Berton regarding the docs for lega action for Colplast.

Please reply to Chaira and Mr. Berton.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 KM

Treviso, Zero Branco Italy

2/7/2013

11:49 AM

cc Email from Bob to Chiara Busato cc: Francesco Berton, Enrico Busato, Arco Chiara (?)

He just received the translations form all the materials so can review & reply. Sorry for the delay. Will give recommendations in 24 

hrs. To start Bob would be preparing a countersuit as the oxo-degradable tech and testing is misleading if not fraudulent.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

2/11/2013

8:43 AM

cc Email from Chiara Busato to Bob cc: Fracesco @ colplast, Enrico Busato

Looking for news on the docs sent. Due time is approaching. Would like Bob's opinion today.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

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2/12/2013

11:29 AM

cc Email from Bob to Chiara Busato cc: Francesco Berton, Enrico Busato, Arco Chiara (?)

Apologized for the delays on getting her the comments. Bob is sure that if this is anythign like our legal system the 14th is simply her 

opportunity to demonstrate that you are going to actively oppose their allegations. Bob imagines that Colplast will have much more 

time to prepare their defenses countersuit. 

First it is important to realize that their competitor and accuser Speed France is in worse shape than they are as to scientific proof of 

their claims. This is important in legal cases because the best thing to occur in this type of case is for the case to be drawn out or for 

them to withdraw their accusations knowing time will bolster your claims & damage theirs.

Second Bob is a member of the ASTM and a US rep for ISO and have been working full time in the matter of biodeg of polymers for

over 13 years so he knows what he is talking about.

Bob will discuss her testing before going into theirs.

Re the Innovhub testing - there is no question that the product biodegs. 7% biodeg after 91 days when only 1.1% or so of additive 

used. Her statement that the sample was not biodeg is unfounded. She is also applying spec for controlled composting to a product 

that is not likely to be composed.

Bob explained what a standard test method is. And what a spec is.

Bob explained that the tests used ISO 14855 . Talked about the results the carbon being converted to CO2 and what the results of 

7% and 47% mean.

Questions weather Colplast product passed or failed is illogical. Results are results. It is for knowledgeable scientists to interpret 

these results. Bob would disagree w/ both of the scientists but especially Dr. Sadocco. What she has done is apply commercial

composting spec to a product not intended to be used in comm composting systems. Tells her what the spec is about and that it is 

meaningless for the Colplast product. Says test labs should stick tousing Standard Test Methods and reporting of their results.

What has been shown is that Colplast material will biodeg under aerobic conditions. - which is where the product will be disposed of.

It is important for the court to understand that the biodeg plastic industry is still in it's infacky as pooposed w/ photodegradable. Has 

been fraught w/ inadequate standardized test methods and specs.

Concerging Broglio use of the University of Milan's name - it's too bad but does not make his equipment, methodology or results less 

valid.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 JS

Treviso, Zero Branco Italy

1/29/2014

2:58 PM

Email from Francesco Berton to Bob

It's been a few months, but they are still going on, advertising and selling their product, and mainly fighting

against competitors and OXO's. A new big customer is very interested and they are now negotiating. they are asking for the Material 

Safety Data Sheet of ECM Masterbatch Pellets, and he just now realized that he never received something like that from ECM's 

distributor. can Bob be so kind to send him this document as soon as possible? it's quite urgent as they are negotiating the last 

details with the customer and he wants to close the contract this week.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 ML

Treviso, Zero Branco Italy

4:01 PM

Email from Bob to Francesco Berton

Attachements: MSDS ECM6_0701 120220.pdf

Attached is the sheet he requested. Good luck with the potential customer.

Contact: Berton, Francesco

Colplast SRL Via S Alberto, 16 ML

Treviso, Zero Branco Italy

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