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  • Writer's pictureShelly Albaum

New Judge Assigned in New York

The ChromaDex-Elysium federal litigation in the Southern District of New York has been transferred to a new judge. Now Chief Judge Colleen McMahon will preside over the case instead of Judge Valerie Caproni. You can read the notice of reassignment here:

This move is almost certainly just the SDNY balancing its resources, and has nothing to do with the substance of the case.

We kind of liked Judge Caproni, because she was previously counsel for the FBI, and there's something in the flavor of this case that makes the involvement of law enforcement just feel right.

However, Chief Judge McMahon has been a federal judge in New York for 20 years, so our matter appears to be in competent hands.

I have been assuming that Judge Caproni was waiting on the FDA before resolving the motions. Whether or not that was true, Judge McMahon may decide to move more quickly. The notice says,

The judge is aware that there are pending fully briefed motions. Please deliver one courtesy copy of the brief and any exhibits filed in support of or in opposition to the motion to Judge Chief Judge McMahon's chambers, 2550, at 500 Pearl Street. Chief Judge McMahon will notify counsel if oral argument is needed.

This notice is the first docketed item in four long months, so anyone would be forgiven if they forgot what the parties were asserting in this court:

Elysium claims that ChromaDex filed its citizen petition with the FDA for an improper purpose. ChromaDex moves to dismiss Elysium's complaint on First Amendment grounds (that ChromaDex has a "Noerr-Pennington" right to petition the FDA).

ChromaDex claims that Elysium engaged in a "nefariously conceived plan" to...I'll just quote the complaint:

Elysium’s pattern of behavior with respect to ChromaDex reflects a nefariously conceived plan to damage and/or steal ChromaDex’s NR, reputation, employees, goodwill, and stature in the industry, as well as its customer opportunities. Elysium’s marketing falsely “borrows” ChromaDex’s research and regulatory achievements to endorse Elysium’s new product, and Elysium has maliciously targeted ChromaDex, its employees, and its commercial relationships by disseminating falsehoods about ChromaDex and refusing to pay for large orders – all with the intent of undermining ChromaDex’s viability and ability to compete. On information and belief, Elysium falsely disseminated untrue information to investors about ChromaDex’s financial health to further interfere with ChromaDex’s ability to raise money and defend itself against Elysium’s multi-front litigation and deceptive advertising war. And, on further information and belief, Elysium and/or its agents are associated with or responsible for stock “short attacks” intended to drive the share value of ChromaDex down, making it a more accessible take-over target.

My previous prediction was that Elysium's complaint would be entirely dismissed, and that at least one of ChromaDex's claims would survive dismissal.

I now also predict that Judge McMahon will attempt to rule on the motions without waiting for the FDA to act -- although, who knows, maybe the FDA will act tomorrow, or issue a second "interim response" once again falsely claiming that the petition is under "active review" by staff.

I say "falsely claiming" because I don't think the issues in ChromaDex's petition are so complicated that they could bear months of "active review."

However, if the FDA is telling the truth, and ChromaDex's petition is in fact the subject of months of "active review," then BY DEFINITION and ipso facto the FDA is not incapable of acting on the petition, and ChromaDex's Noerr-Pennington defense succeeds. Only if the FDA dismissed the petition out-of-hand could Elysium have any cause of action based on the petition.

With any luck, we won't get another four months of utter silence from the SDNY.

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