ORlGtNAL 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

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Docket No. 9358 

PUBLIC 

COMPLAINT COUNSEL'S OPPOSITION TO RESPONDENT'S MOTION FOR 

LEAVE TO FILE A REPLY 

For several reasons, Complaint Counsel respectfully asks the Court to deny Respondent 

ECM Biofi.lms, Inc.'s ("ECM's") Motion for leave to file a reply. First, the proposed reply does 

not satisfy Rule 3.22(d), because it does not identify "important developments that could not 

have been raised earlier in [ECM's] principai brief." To the extent ECM had reasons why it 

satis.fied the meet and confer obligation, it could have explained those in its principal brief. 

Second, the prop<;>sed reply does not address Scheduling Order 14, upon which Complaint 

Counsel's opposition relied. Rather, the proposed reply addresses RUle 3.22(g), which is 

irrelevant here (Rule 3 .22(g) does not cover motions for in camera treatment, whereas 

Scheduling Order 1!4 does). 

Third, ECM's po:st hoc rationalization is incomprehensible. ECM apparently claims to 

have conferred about the pending :QlOtion for in camera treatment on February 6: before ECM 

produced do~uments and b~fwe the parties exchanged exhtbitlists. Suffice it to say, the letter 

ECM attaches to its proposed reply does not mention in camera treatment. 

Finally, ECM call~ us hypocrites for failingto confer regarding our McClaren!Hart 

motion in limme, but this is a red herring. As ECv1 admits, a.Il attempt to persuade it to withdraw 

an important piece of its substantiation was "unlikely" to succeed. (in fact, this is an 

understatement). See Proposed Reply at 3 Courts regularly excuse meet and confer 

requirements when they are obviously futile. See, e g., Gibbons v. Smith, 01 Civ. 1224.2010 

WL 582354, *2 (S.D.N.Y. Feb. 11 , 2010) ("relief from the meet ... and-confer requirement" is 

v.rarranted where "any attempt to resolve the dispute infonnally would have been futile"). 
PUBLIC DOCUMENT 

Significantly, however, a conference with respect to the thirty-seven documents at issue would 

almost certainly have borne fruit-if not produced a complete agreement. Because the potential 

in camera treatment for thirty-seven documents is something the parties must at least attempt 

before burdening the Court, ECM's proposed reply changes nothing, and the Court should deny 

ECM's request to file it. 

Dated: July 17, 2014 Respectfully submitted, 

1 K~theflneJohnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

{ · Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on July 17, 2014, I caused a true and correct copy of the foregoing to 

be served as follows: 

One electronic copy to the Office of the Secretary, and one copy through the FTC's e-filing 

system (although Complaint Counsel received an error message when attempting to file): 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc . gov 

One electronic copy and one hard copy to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emard 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Date: July 17, 2014 

Peter Arhangelsky 

Emord & Associates, P. C. 

3210 S. Gilbert Road, Suite4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Eric J. Awerbuch 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuch@emord.com 

Kathfr:i-ne Johnson (kjohnson3@ftc.gov) 

, Jbnathan Cohen Gcohen2@ftc.gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

3 

Phone: 202~326- 185; -2551 ; -2747; -3001 

Fax: 202-326-2551