Ecm Biofilms, Inc.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF ECM BIOFILMS, INC.

D/B/A ENVIROPLASTICS INTERNATIONAL Docket No. 9358; Order, April 8, 2014 Order responding to Complaint Counsel’s motion seeking a continuance of the evidentiary hearing.

ORDER RESCHEDULING HEARING DATE On October 18, 2013, the Federal Trade Commission issued the Administrative Complaint in this adjudicative proceeding and scheduled the evidentiary hearing for June 18, 2014. On March 18, 2014, Complaint Counsel filed a Motion which, among other things, requests that the Commission continue the evidentiary hearing for three months, arguing that such additional time is “the time minimally necessary to complete discovery.”1 Respondent opposes any such delay, arguing that a three-month delay “will substantially increase costs but will not yield any more substantive information than Complaint Counsel now possesses.”2 On April 1, 2014, Chief Administrative Law Judge Chappell issued an Order ruling on Complaint Counsel’s Motion.3 As 1 Complaint Counsel’s Motion To Certify Scheduling Issues to the Commission and Request for Interim Relief at 12, In the Matter of ECM Biofilms, Inc. et al, F.T.C. Docket No. 9358 (Mar. 18, 2014) [hereinafter Motion], available at http://www.ftc.gov/system/files/documents/cases/140318 ccmtntocertify.pdf.

2 ECM Biofilms Opposition To Complaint Counsel’s Motion To Certify Scheduling Issues and For Interim Relief, in camera, at 2, In the Matter of ECM Biofilms, Inc. et al, F.T.C. Docket No. 9358 (Mar. 28, 2014) (quoted language public, but redacted public version of Opposition not yet filed). 3 Order On Complaint Counsel’s Motion To Certify Scheduling Issues To the Commission and Request For Interim Relief, In the Matter of Biofilms, Inc. et al, F.T.C. Docket No. 9358 (Apr. 1, 2014) [hereinafter ALJ Order], available at http://www.ftc.gov/system/files/documents/cases/140401ordercertifycommn.pd f.

ECM BIOFILMS, INC. 1843 Interlocutory Orders, Etc.

Judge Chappell points out, the only issue raised by the Motion that is certifiable to the Commission is Complaint Counsel’s request for a continuance of the evidentiary hearing.4 As authorized by the Commission Rules, Judge Chappell has addressed and resolved all of the other issues raised by Complaint Counsel’s Motion, and we need not address them here. On the issue before us – Complaint Counsel’s request for a 90-day continuance of the evidentiary hearing – Judge Chappell recommends that the hearing be continued for 45 days. He concludes that, while the parties “are entitled to full and fair discovery,” Complaint Counsel’s request for a 90-day continuance “is not sufficiently justified.”5 Specifically, Judge Chappell notes that Complaint Counsel asked that the discovery deadlines in the case be extended by 45 days but at the same time requested a 90-day continuance. As Judge Chappell also observes, Respondent opposes the request for continuance, but, in its own motion to compel and for sanctions, also seeks to extend the fact discovery deadline. Judge Chappell therefore recommends that the Commission continue the evidentiary hearing for 45 days, to August 5, 2014.6 We agree with the recommendation of Judge Chappell.

Based on the foregoing, we find there is good cause to continue the evidentiary hearing to August 5, 2014. Accordingly, IT IS ORDERED that the evidentiary hearing in this proceeding be, and it hereby is, rescheduled to begin at 10:00 a.m. on August 5, 2014, at the Federal Trade Commission offices at 600 Pennsylvania Avenue, N.W., Room 532, Washington, D.C. 20580.

4 Commission Rule 3.22(a), 16 C.F.R. § 3.22(a), provides that during the time an adjudicative proceeding is before an Administrative Law Judge, all motions on which the ALJ has the authority to rule “shall be addressed to and decided by the Administrative Law Judge.” Only the Commission has the authority to change the date of the hearing. See Commission Rule 3.21(c), 16 C.F.R. § 3.21(c).

5 ALJ Order, supra note 3, at 3.

6 Id. at 1.

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By the Commission.

MCWANE, INC. 1845 Interlocutory Orders, Etc.