Docket No. 9358 PUBLIC DOCUMENT

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman 

Julie Brill

Maureen K. Ohlhausen

Terrell McSweeny

In the Matter of

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent.

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Docket No. 9358 

PUBLIC DOCUMENT

RESPONDENT ECM BIOFILMS’ MOTION FOR IN CAMERA TREATMENT OF 

INFORMATION IN ECM’S APPLICATION FOR STAY

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane 

Clifton, VA 20124 

(p) (202) 466-6937 

(f) (202) 466-6938 

(e) jemord@emord.com 

Peter A. Arhangelsky

Bethany R. Kennedy

Eric J. Awerbuch

Joshua Furman 

EMORD & ASSOCIATES, P.C.

3210 S. Gilbert Road, Ste 4 

Chandler, AZ 85249 

(p) (602) 388-8899 

(f) (602) 393-4361 

(e) parhangelsky@emord.com; eawerbuch@emord.com; 

bkennedy@emord.com; jfurman@emord.com 

Counsel for Respondent ECM BioFilms, Inc. 

11 09 2015

579834
Docket No. 9358 PUBLIC DOCUMENT

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RESPONDENT’S MOTION FOR IN CAMERA TREATMENT OF INFORMATION IN 

ECM’s APPLICATION FOR STAY 

Respondent ECM BioFilms, Inc. (ECM), under Rules 3.45(b) and 4.2(c)(2) of the 

Commission’s Rules of Practice, hereby requests in camera treatment of information contained 

within its Application for Stay of the Commission’s Order.1 

INTRODUCTION

 On December 18, 2015, the Commission issued a Final Order limiting ECM’s ability to 

market its only commercial product. Contemporaneous with this Motion, ECM has filed its 

Application for Stay Pending Judicial Review (the “Application). See Application. To fully and 

fairly apprise this Commission of all relevant bases for relief, ECM provided the Commission 

with confidential information concerning the {

} Public disclosure of that 

competitively sensitive information would cause ECM serious and actual injury, as discussed 

herein below. Therefore, ECM respectfully requests that the Commission grant in camera status 

to the information at issue. 

LEGAL STANDARD

 The Commission may order that material, or portions thereof, offered into evidence be 

subject to in camera treatment. 16 C.F.R. § 4.2(c)(ii)(2). “In Commission proceedings, requests 

 1 In accordance with Rule 4.2(c)(2), ECM submits contemporaneously with this Motion a 

separate set of only those pages which contain confidential information. See Exhibit A. The 

information at issue is identified with bold font and brackets. ECM has also contemporaneously 

filed its full and complete Application for Stay, and it will file a redacted public version of same. 

This filing is designated “Confidential” because it discusses and features content that would 

otherwise be designated confidential if the Commission grants the requested relief. 
Docket No. 9358 PUBLIC DOCUMENT

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for in camera treatment must show that the public disclosure of the documentary evidence will 

result in a clearly defined, serious injury to the person or corporation whose records are 

involved.” In the Matter of Evanston Nwern. Healthcare Corp., 2005 WL 593177, at *1 (F.T.C. 

Feb. 9 2005) (citations omitted). “That showing can be made by establishing that the 

documentary evidence is sufficiently secret and sufficiently material to the applicant's business 

that disclosure would result in serious competitive injury, and then balancing that factor against 

the importance of the information in explaining the rationale of Commission decisions.” Id. 

(quotations and citations omitted).

In determining whether to grant in camera treatment of certain material that will cause 

competitive injury, the Commission weighs five of the six factors first articulated in BristolMyers:

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

the extent to which it is known by employees and others involved in his 

business; [...] (4) the value of the information to him and to his competitors; 

(5) the amount of effort or money expended by him in developing the 

information; (6) the ease or difficulty with which the information could be 

properly acquired or duplicated by others.

Matter of Bristol-Myers Co.. 90 F.T.C. 455 (1977); modified by Matter of Gen. Foods Corp., 95 

F.T.C. 352, at *3–4 (1980) (removing the third factor). “A party must make a clear showing that 

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

disclosure would result in serious competitive injury.” In the Matter of Polypore Int’l, Inc., 2011 

WL 668505 (Feb. 11, 2011) (citation omitted). “The showing may consist of extrinsic evidence 

or, in certain instances, may be inferred from the nature of the documents themselves.” H.P. 

Hood & Sons, Inc., 58 F.T.C. 1184 (1961). 

Documents that have met that standard and been granted in camera status by the FTC 

include “a recent financial audit; business strategy documents; [and] financial and cost data” 
Docket No. 9358 PUBLIC DOCUMENT

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where that data “has been maintained as confidential and disclosure of the information would 

result in a clearly defined, serious injury to respondents.” Evanston, 2005 WL 593177 at *3; see 

also Matter of E.I. DuPont de Nemours & Co., 97 F.T.C. 116 (1981) (granting in camera status 

to documents containing “earnings, profit, operative return and cost information about 

respondent’s ... business”). ECM seeks confidential status for similar information, which was 

similarly granted protection from public disclosure during discovery before the ALJ. See

Protective Order Governing Discovery Material (Oct. 2, 2013). 

ARGUMENT

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

market. See Declaration of Robert Sinclair, attached as Exhibit B, at ¶ 3. It sells additives that 

render plastic materials biodegradable. See Application at 13–26. ECM faces substantial

competition from other additive manufacturers selling competing technologies, each vying for a 

limited consumer market of plastics manufacturers. See Exhibit B at ¶ 4. The market for plastic 

additive technologies is particularly competitive because the clients (plastics manufacturers) 

open long-term accounts and infrequently change business partnerships once established. See 

Exhibit B at ¶ 5. For that reason, ECM has maintained strict confidentiality of its sensitive 

financial information, which could provide two critical issues for ECM if disclosed publicly. 

First, ECM’s competition would use that information to ECM’s detriment. ECM’s financial data 

contains valuable information on market demand and pricing. When combined with public 

information concerning ECM pricing, competitors could determine the specifics of ECM’s 

holdings and account structures. Second, ECM’s competitors can provide ECM’s information to 

customers, using that information to negotiate against ECM in the open market. 
Docket No. 9358 PUBLIC DOCUMENT

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Since FTC’s proceedings began, ECM has been {

} See Exhibit B at ¶ 5. That { is due in part to the fact that 

it is not difficult for companies that use products like the ECM additive to switch to a 

competitor’s product. See id. Competitors have seized on ECM’s troubles with the FTC, and 

used information apparent from the investigation against ECM’s interests. For example, largely 

because of ECM’s entanglement with the FTC, {

} e-mail correspondence, attached as Exhibit 

C.2

 

The content ECM would designate in camera is information only available to ECM’s 

Officers and Directors. That information includes specific facts on ECM’s financial condition, 

such as incomes, losses, and number of customers. See Exh. A. ECM requests that its Profit and 

Loss projections, historical revenues, loan amounts, loan payments, and litigation costs remain 

confidential. See Exh. A (detailing ECM’s revenues, yearly Ordinary Net Incomes, Professional 

Expenses, etc.). That sensitive financial information is of the type normally kept confidential by 

private, closely held corporations. ECM requests that statements concerning ECM’s prospective 

marketing strategies remain confidential. See Exh. A (stating what claims ECM intends to make 

and not to make in the future and stating that ECM {

} Those marketing strategies have not yet been discussed 

 2

 The ALJ previously designated this document for in camera status. See Protective 

Order Governing Discovery Material (Oct. 2, 2013), attached as Exhibit D; see also 

Respondent’s Renewed Motion for In Camera Treatment of Certain Proposed Trial Exhibits 

(Aug. 1 2014) (published on ftc.gov with this document redacted in its entirety), available at 

https://www.ftc.gov/system/files/documents/cases/140801ecmmtn.pdf (last visited Nov. 6, 

2015). ECM requests that the Commission likewise designate this document for in camera 

status.
Docket No. 9358 PUBLIC DOCUMENT

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with customers or disclosed publicly. Revelation of that information to competitors would 

encourage negative marketing strategies designed to lure ECM’s remaining businesses. 

Prosecution by the Commission for consumer deception issues should not mandate disclosure of 

a respondent’s sensitive commercial and financial information. 

Four of the five Bristol-Myers factors weigh heavily against public disclosure of ECM’s 

designated content. The facts at issue are entirely unknown outside of ECM’s officers and 

directors, as not even ECM’s employees are privy to that information. See Exhibit B at ¶ 6; see 

General Foods, 95 F.T.C. 352 at *2 (holding that where a respondent can show that the 

information at issue is unknown to general employees the Commission should grant in camera

status to that information). Further, the information at issue is valuable to ECM’s competitors. 

See Exhibit B at ¶ 6. ECM competitors can use the information at issue to influence ECM’s 

customers, the names of which are now publicized.3

 Evidence of {

} Lastly, the information ECM 

designates confidential cannot be acquired or developed by anyone other than ECM. See 

General Foods, 95 F.T.C. 352 at *2 (holding that where a respondent can show that the 

information at issue is unavailable from other source the Commission should grant in camera

status to that information); Evanston, 2005 WL 593177 at *2 (“The declarations demonstrate that 

the information for which in camera treatment is sought has been maintained as confidential and 

disclosure of the information would result in a clearly defined, serious injury to respondents.”). 

Finally, public disclosure of ECM’s information is not necessary for the Commission to 

explain or clarify its rationale in ruling on ECM’s request for a stay. Id. at *3 (explaining that 

 3

 The identities of ECM’s customers are now public because of this proceeding, despite 

ECM’s efforts to keep that information confidential. See Order Denying Respondent’s Motion 

for Protective Order and Granting Complaint Counsel’s Cross-Motion to Compel (Jan. 10 2014). 
Docket No. 9358 PUBLIC DOCUMENT

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“the principal countervailing considering weighting in favor of disclosure should be the 

importance of the information in explaining the rationale of [the Commission’s] decision”). The 

information is only relevant insofar as it concerns ECM’s Application for a Stay. The 

Commission has already provided its rationale on the merits of this proceeding in a lengthy 

opinion. The issues presented in ECM’s Application do not rest solely on ECM’s financial 

prejudice. ECM’s Application presents evidence on seven other factors to be assessed when 

determining whether the Commission should grant a stay. ECM’s irreparable financial harm is 

one factor in the decision, which can be assessed and explained by the Commission without 

disclosing the details featured in ECM’s Application.

ECM requests that the information at issue be granted in camera treatment for three 

years. See Order, supra n. 3 (stating that “[w]here in camera treatment is granted for business 

records ... it is typically provided for two to five years”). ECM anticipates that three years is 

sufficient time for this case to be resolved in its entirety, rendering the status of the information 

at issue moot.

RELIEF

For the foregoing reasons ECM respectfully requests this Court grant in Camera 

treatment to that information attached within Exhibit A for a period of three years. 

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
Docket No. 9358 PUBLIC DOCUMENT

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DATED: November 9, 2015

CERTIFICATE OF SERVICE

I hereby certify that this is a true and correct copy of Respondent ECM BioFilms’ Motion for In 

Camera Treatment of Certain Information in Application for Stay, and that on this November 9, 

2015, I caused the foregoing to be served electronically to the following: 

Donald Clark

600 Pennsylvania Ave., NW

Suite 172

Washington, DC 20580

I hereby certify that this is a true and correct copy of Respondent ECM BioFilms’ Application to 

Stay the Final Order Pending Judicial Review, and that on this November 9, 20155, I caused the 

foregoing to be served electronically to the following:

Jonathan Emord

Emord & Associates, P.C.

jemord@emord.com

Respondent

Peter Arhangelsky

Emord & Associates, P.C.

parhangelsky@emord.com

Respondent

Katherine Johnson

Complaint Counsel

Federal Trade Commission

kjohnson@ftc.gov

Complaint

Elissa Jillson 

Complaint Counsel

Federal Trade Commission

ejillson@ftc.gov

Complaint

Jonathan Cohen

Federal Trade Commission, Bureau of Consumer Protection, Enforcement Division

jcohen@ftc.gov

Complaint
Docket No. 9358 PUBLIC DOCUMENT

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Arturo DeCastro

Attorney

Federal Trade Commission

adecastro@ftc.gov

Complaint

Eric Awerbuch

Attorney
EXHIBIT A
PAGES FROM RESPONDENT’S 

MOTION FOR IN CAMERA 

TREATMENT
RESPONDENT’S MOTION FOR IN CAMERA TREATMENT OF INFORMATION IN 

ECM’s APPLICATION FOR STAY 

Respondent ECM BioFilms, Inc. (ECM), under Rules 3.45(b) and 4.2(c)(2) of the 

Commission’s Rules of Practice, hereby requests in camera treatment of information contained 

within its Application for Stay of the Commission’s Order.1 

INTRODUCTION

 On December 18, 2015, the Commission issued a Final Order limiting ECM’s ability to 

market its only commercial product. Contemporaneous with this Motion, ECM has filed its 

Application for Stay Pending Judicial Review (the “Application). See Application. To fully and 

fairly apprise this Commission of all relevant bases for relief, ECM provided the Commission 

with confidential information concerning the {

} Public disclosure of that 

competitively sensitive information would cause ECM serious and actual injury, as discussed 

herein below. Therefore, ECM respectfully requests that the Commission grant in camera status 

to the information at issue. 

LEGAL STANDARD

 The Commission may order that material, or portions thereof, offered into evidence be 

subject to in camera treatment. 16 C.F.R. § 4.2(c)(ii)(2). “In Commission proceedings, requests 

 1

 In accordance with Rule 4.2(c)(2), ECM submits contemporaneously with this Motion a 

separate set of only those pages which contain confidential information. See Exhibit A. The 

information at issue is identified with bold font and brackets. ECM has also contemporaneously 

filed its full and complete Application for Stay, and it will file a redacted public version of same. 

This filing is designated “Confidential” because it discusses and features content that would 

otherwise be designated confidential if the Commission grants the requested relief. 
Since FTC’s proceedings began, ECM has been 

} See Exhibit B at ¶ 5. That { } is due in part to the fact that 

it is not difficult for companies that use products like the ECM additive to switch to a 

competitor’s product. See id. Competitors have seized on ECM’s troubles with the FTC, and 

used information apparent from the investigation against ECM’s interests. For example, largely 

because of ECM’s entanglement with the FTC, one of its larger customers sought to switch from 

ECM to a competitor in 2013. See PPC e-mail correspondence, attached as Exhibit C. 

The content ECM would designate in camera is information only available to ECM’s 

Officers and Directors. That information includes specific facts on ECM’s financial condition, 

such as incomes, losses, and number of customers. See Exh. A. ECM requests that its Profit and 

Loss projections, historical revenues, loan amounts, loan payments, and litigation costs remain 

confidential. See Exh. A (detailing ECM’s revenues, yearly Ordinary Net Incomes, Professional 

Expenses, etc.). That sensitive financial information is of the type normally kept confidential by 

private, closely held corporations. ECM requests that statements concerning ECM’s prospective 

marketing strategies remain confidential. See Exh. A (stating what claims ECM intends to make 

and not to make in the future and stating that ECM {

} Those marketing strategies have not yet been discussed 

with customers or disclosed publicly. Revelation of that information to competitors would 

encourage negative marketing strategies designed to lure ECM’s remaining businesses. 

Prosecution by the Commission for consumer deception issues should not mandate disclosure of 

a respondent’s sensitive commercial and financial information. 
Four of the five Bristol-Myers factors weigh heavily against public disclosure of ECM’s 

designated content. The facts at issue are entirely unknown outside of ECM’s officers and 

directors, as not even ECM’s employees are privy to that information. See Exhibit B at ¶ 6; see 

General Foods, 95 F.T.C. 352 at *2 (holding that where a respondent can show that the 

information at issue is unknown to general employees the Commission should grant in camera

status to that information). Further, the information at issue is valuable to ECM’s competitors. 

See Exhibit B at ¶ 6. ECM competitors can use the information at issue to influence ECM’s 

customers, the names of which are now publicized.2 Evidence of {

} Lastly, the information ECM 

designates confidential cannot be acquired or developed by anyone other than ECM. See 

General Foods, 95 F.T.C. 352 at *2 (holding that where a respondent can show that the 

information at issue is unavailable from other source the Commission should grant in camera

status to that information); Evanston, 2005 WL 593177 at *2 (“The declarations demonstrate that 

the information for which in camera treatment is sought has been maintained as confidential and 

disclosure of the information would result in a clearly defined, serious injury to respondents.”). 

Finally, public disclosure of ECM’s information is not necessary for the Commission to explain 

or clarify its rationale in ruling on ECM’s request for a stay. Id. at *3 (explaining that “the 

principal countervailing considering weighting in favor of disclosure should be the importance of 

the information in explaining the rationale of [the Commission’s] decision”). The information is 

only relevant insofar as it concerns ECM’s Application for a Stay. The Commission has already 

provided its rationale on the merits of this proceeding in a lengthy

 2

 The identities of ECM’s customers are now public because of this proceeding, despite 

ECM’s efforts to keep that information confidential. See Order Denying Respondent’s Motion 

for Protective Order and Granting Complaint Counsel’s Cross-Motion to Compel (Jan. 10 2014). 
PAGES FROM SINCLAIR 

DECLARATION IN SUPPORT OF 

MOTION FOR IN CAMERA 

TREATMENT

PAGES FROM EXHIBIT C TO 

RESPONDENT’S MOTION FOR IN 

CAMERA TREATMENT
 

PAGES FROM RESPONDENT’S 

APPLICATION FOR STAY
1. For the first time in FTC history, the “fencing-in” relief ordered restrained 

scientifically supported and truthful speech concerning biodegradability without reasoned 

explanation. 

2. For the first time in FTC history, FTC effectively amended an industry guidance 

through adjudication without notice to, or comment from, the affected industry and has through 

this decision imposed on all industry regulatees an impracticable and scientifically invalid 

standard as a condition precedent for use of the unqualified term “biodegradable” in advertising. 

The complexity of this case and difficult legal questions, as evidenced by the differing 

opinions of the ALJ, the majority of the Commission, and Commissioner Ohlhausen make a stay 

appropriate. See N. Tex. Specialty Physicians, 141 F.T.C. 10, at *2 (2006) The numerous 

unprecedented actions will be evaluated by the United States Court of Appeals as this matter 

proceeds to judicial review. Because so many material aspects of the Decision are 

unprecedented, it behooves the Commission to impose a stay to preserve the status quo ante 

while the United States Court of Appeals determines whether the novel actions comply with the 

First Amendment, the Federal Trade Commission Act, and the Administrative Procedure Act. 

As explained below, the Decision imposes a prior restraint on truthful speech in violation of 

constitutional limits on agency power, and it exceeds FTC statutory and procedural limits. 

The unprecedented aspects of the Decision not only raise substantial constitutional, statutory, and 

administrative law issues, they also {

} The Final Order imposes limits on
truthful scientific speech concerning ECM’s product in a manner that renders ECM 

incapable of representing to the public the accurate scientific record. On that same scientific 

record, the ALJ held that ECM’s product efficacious, substantiated by “competent and reliable 

scientific evidence.” ALJID at 284. 

Nowhere in the record is there proof of a palpable risk of harm to consumer health or 

safety created or caused by the advertising at issue in this matter. Indeed, the ALJ found that 

there was no evidence of injury or harm to end-consumers, which factual finding is 

uncontroverted. See ALJID at 300–01 nn. 58–59, attached as Exh. A. The { } to 

ECM caused by the Decision, when balanced against the absence of provable risk to consumer 

health or safety, and the public’s interest in judicial finality at the Circuit level, tilt the equitable 

balance strongly in favor of imposition of a stay of the Decision pending appeal.

STANDARD FOR GRANTING A STAY

 “Pursuant to Rule 3.56(c) of the Commission's Rules of Practice, an application for 

a stay is evaluated on four factors: (1) the likelihood of the applicant's success on appeal; (2) 

whether the applicant will suffer irreparable harm if a stay is not granted; (3) the degree of injury 

to other parties if a stay is granted; and (4) whether the stay is in the public interest.” In the 

Matter of N.C. Bd. of Dental Exam’rs, 2012 WL 588756, at *1 (F.T.C. Feb. 10, 2012) (citing 16 

C.F.R. § 3.56(c)). 

THE STAY STANDARD IS SATISFIED ON THIS RECORD

 Under agency law, a stay is appropriately granted when the law has been applied to a 

complex factual record (here involving several novel elements, not least of which is a previously 

untested and untried Google consumer survey), which complexity and novelty could have 

resulted in an alternative outcome. In the Matter of Novartis Corp., 128 F.T.C. 233, 235 (1999) 
North Texas, 141 F.T.C. 10 at *2. Under this method of evaluating the likelihood of success on 

the merits, a stay is appropriate in this case.

There is an inherent conflict of interest present when the very same decision makers who 

have ruled against a party on the merits are asked to determine whether there is a likelihood of 

that party’s success on appeal. Whether a just, independent assessment is ever possible in such a 

circumstance is open to question. Nevertheless, based solely on the law, ECM is likely to 

succeed on appeal based on the controlling constitutional, statutory, and administrative law here 

in issue because, inter alia, the Final Order violates ECM’s First Amendment right to claim a 

verified fact, that its additive accelerates biodegradation of plastic products (when in fact the 

scientific record in this case proves that very point), and because the Commission’s Five Year 

Rule is arbitrary, capricious, and contrary to the generally accepted scientific definition of the 

term “biodegradability.” The Commission’s position concerning the science of biodegradation 

and biodegradation testing is inconsistent with Complaint Counsel’s own expert testimony, 

including an expert from the EPA who embraced the very “accelerated” gas evolution testing

that so amply supported the ALJ’s finding of ECM’s product efficacy. 

ECM will suffer irreparable harm absent a stay. The Decision limits the constitutional 

freedom to communicate the essential functionality of ECM’s product (its ability to accelerate 

biodegradation of plastics), and also portends {
} A stay is therefore equitable and 

essential to maintain the status quo ante pending judicial review. 

The public interest weighs in favor of a stay because the Decision violates ECM’s rights

under the Constitution, the FTC’s enabling statute, and the Administrative Procedure Act, and 

because there is no evidence of record that anyone who was allegedly misled by ECM’s 

unqualified biodegradable claim actually suffered any harm or injury. Moreover, by establishing 

the new Five Year Rule, the Decision has an in terrorem effect or chilling effect on the entire 

biodegradable plastics industry, inducing self-censorship and also eliminating the sale of 

products that are demonstrably beneficial to the environment. 

A. ECM is Likely to Succeed on Appeal 

“[A]rguable difficulties arising from the application of the law to a complex factual record 

can support a finding that a stay applicant has made a substantial showing on the merits.” 

Novartis, 128 F.T.C. at 235. A complex factual record exists where the Commission must 

“evaluate numerous scientific studies of consumer behavior...” North Texas, 141 F.T.C. 10 at 

*2. A respondent sufficiently shows a likelihood of success on appeal where the Commission’s 

application of a complex factual record to the law is vulnerable to alternative reasonable 

applications. Id.; Novartis, 128 F.T.C. at 235. The ALJ’s decision is in stark contrast to the 

Commission’s Decision. In the realm of consumer deception adjudications, the Commission has 

never before so dramatically departed from an ALJ ruling on a core claim, particularly a decision

as robust and well-developed with record support as the ALJ’s Initial Decision in this case. The 

ALJ noted 1,539 findings of fact, many of which directly contradict substantial portions of the 

Decision, but were never addressed by the Commission (or even cited in the Decision).
divergent interpretations from different divisions within the EPA constituted evidence that the 

agency had not provided fair notice). 

Absent a Stay, ECM will Suffer Irreparable Financial and Constitutional Harm 

“A party seeking a stay must show, with particularity, that the alleged injury is substantial 

and likely to occur absent a stay.” North Carolina Board, 2012 WL 588756 at *2. 

1. Absent a Stay, ECM Will Suffer Irreparable Financial Injury

Irreparable injury exists where “economic harm[] threaten[s] the very existence of the 

movant’s business ...” F.T.C. v. Church & Dwight Co., Inc., 75 F. Supp. 2d 81, 86 (D.D.C. 

2010). ECM is a small company of six employees. ALJFF ¶ 154. {

} See 

Decl. of Robert Sinclair, attached as Exh. H; Decl. of Kenneth Sullivan, attached as Exh. I. {

} Exh. H at 

¶¶ 11, 13. The FTC’s Decision harms broadly the entire biodegradable plastics industry, but 

directly, substantially, and immediately ECM. Absent a stay of the Order pending judicial 

review, {

} Exh. H at ¶¶ 11–12, 15–17. Thus, denial of a stay could likely deny ECM meaningful 

judicial review of the agency decision—something to which all parties are, of right, entitled to 

receive. 

Since the FTC initiated proceedings against ECM in this matter, {

} Exh. I at ¶¶ 4–5. 

ECM {
} Exh. H at ¶ 13. ECM’s {f 

} Exhibit I at ¶ 5. It has 6 employees, 

whereas before this matter ECM employed 7 individuals (local residents in or around the 

Painesville, Ohio community). Id. at ¶ 7. ECM operates in a highly competitive market. Exh. H 

at ¶ 12. One competitor’s loss is another’s gain. Moreover, ECM customers are manufacturing 

entities that {

} 

ECM {

} 

On that point, immediate implementation of the Commission Decision (without a stay) harms 

both ECM and the public interest. The record reflects no proof that actual consumers have ever 

been deceived by ECM’s “biodegradable” claim and reflects substantial scientific evidence of 

ECM product efficacy. The relatively short period of time necessary to achieve closure 

following judicial review is thus insignificant compared {

} Moreover, given the multiplicity of entirely 

unprecedented applications of law in the Decision that raise constitutional, statutory, and 
Court has passed on the unprecedented actions of the Commission. Without a Stay, {

} and immediate and irreparable harm in the 

form of deprivation of its First Amendment right to communicate truthful information. Finally, 

no evidence of record suggests that a Stay would result in consumer injury or harm. 

Respectfully submitted,

Jonathan W. Emord (jemord@emord.com) 

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED: November 6, 2015 
PAGES FROM SINCLAIR 

DECLARATION IN SUPPORT OF 

APPLICATION FOR STAY


PAGES FROM SULLIVAN

DECLARATION IN SUPPORT OF 

APPLICATION FOR STAY





EXHIBIT B


EXHIBIT C
 

EXHIBIT D
UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

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. Micllie1caeu 

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 matter 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 defined. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

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

information. "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 information 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 documents in the possession of the Commission, 

as well as any information 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 

s.uch 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 documents 

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 of this Order so as to inform each such third party of his, 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 

confidential material 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 confidential 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 

firm( s ), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

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

agreement to abide by the terms ofthe protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 ofthis 

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 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

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

or other paper filed or to be filed with the Secretary of the Commission, 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 the materials in its papers shall immediately notify the submitter of such 

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

treatment until further order of the 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 material. Further, if the protection for any 

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

contains the formerly 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 document 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 submitter 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 10 

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 Commission. 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 

preparation 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 of Rule 4.12 ofthe Rules of Practice, 16 CFR 4.12. 

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

and use of confidential discovery material, shall, without written permission of the 

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

of this proceeding. 

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