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  • Writer's pictureShelly Albaum

Elysium's Reply in Support of Dismissing CDXC's FAC

And now we have Elysium's Reply to ChromaDex's Opposition to Elysium's Motion to Dismiss ChromaDex's Fourth Amended Complaint (FAC), or at least to dismiss the new claims in the FAC. You can read it here:

Elysium begins by listing ChromaDex's alleged sins, the implication being that if ChromaDex is a bad actor, then ChromaDex should not be able to assert claims against Elysium.

The law, of course, is contrary to that, so Elysium's peculiar and irrelevant recitation of its grievances in its Reply Brief is an attempt to distract and a sign of weakness.

Ironically -- but as we have come to expect -- Elysium commits the actual sins that it accuses ChromaDex of committing, so Elysium's list of complaints is preceded by the accusation:

"ChromaDex lards its response with rhetoric and references to Elysium's purported misconduct"

and Elysium's complaint list is followed by the accusation:

"ChromaDex’s flurry of misdirection...cannot make up for the inadequacy of" its filing.

If Elysium would look in the mirror, it would see that it is describing its own conduct. Elysium Health -- Heal Thyself!

What we have seen throughout this litigation is endless rearticulations of Elysium's core legal theory, which is that if ChromaDex has misbehaved, then Elysium is entitled to do whatever it likes in response.

Elysium's theory is, of course, the exact opposite of why we have a justice system, which is to prevent the free-for-all of escalating assaults that might otherwise occur, so to hear Elysium begging the court in this way is unseemly, and would make you wonder whether Skadden's attorneys even attended class in law school, or whether they were too good for it.

Just kidding: We know what it means.

Every litigator knows that if the law is against you, argue the facts; if the facts are against you, argue the law; if the law and the facts are both against you, argue policy.

And if the law, the facts, and policy are all against you, then complain to the court about what a bastard your opponent is and put your rosary to good use.

That's where Elysium is.

I won't rehearse the details, because we have been through it, and I am not seeing anything new in the Reply, even though the Reply spans a full 23 pages.

Interestingly, Skadden doubles-down on its illegal footnote spacing, again using something less than single-spacing, probably 0.8, presumably not wanting to admit its wrongdoing by making a change, and presumably trying to erase the inference of wrongful intent since it uses illegal footnotes in this case even when it might not need to squeeze in under a page limit.

Although I'm not sure of that, because there are 15 footnotes with illegal spacing in this brief, and they are pretty big footnotes. Here is an example of a jam-text footnote that spills over onto the next page:

Nobody is likely to be fooled by such tricks, and in general this is the unprofessional behavior that one expects of fly-by-night solo practitioners, not global firms.

The Chief Judge of this court, the Central District of California, makes very clear that manipulating line spacing and the footnotes to evade page limits is prohibited:

"...Federal courts routinely warn litigants not to use textual footnotes to evade page limits. See Kano v. Nat'l Consumer Coop. Bank, 22 F.3d 899 (9th Cir.1994) (imposing sanctions on a party who violated form of brief rule through improper line spacing and excessive footnotes); DeMarco v. DepoTech Corp., CV 98–675–TW (POR), 1999 U.S. Dist. LEXIS 15321 (striking party's reply memorandum due to excessive use of single-spaced footnotes). The excessive use of footnotes is not only disrespectful to this Court and to opposing counsel, but also unduly complicates the Court's task and makes Defendant's memorandum more difficult to comprehend. Accordingly, Defendant's Opposition and attached exhibits are hereby STRICKEN from the record, and Plaintiff's Motion, currently set for hearing on October 21, 2013, is TAKEN OFF CALENDAR. Defendant SHALL refile its Opposition no later than October 14, 2013, without any footnotes..."

-- Caldera v. Smucker, (2013 WL 6987893, USDC, C.D.Cal. 2013)

One of the sad things about lawyering is that you have to argue your client's position even if your client's position is really, seriously weak. So you end up going to court saying things that you barely believe yourself, and counting on the judge to see through you.

In this case, I think Judge Carney won't be challenged to see through Elysium's arguments. Take this one, for example, on Page 6 of the reply:

ChromaDex also alleges that Elysium did not come into possession of the Ingredient Sales Spreadsheet until July 18, 2016—nearly three weeks later. ChromaDex does not explain how Elysium purportedly leveraged an “undisclosed advantage” from the Ingredient Pricing Spreadsheet in a negotiation that preceded its possession of the document by weeks, and its nonsensical argument only highlights the gossamer nature of its claim of injury.

It must be fun to use adjectives like "nonsensical" or "gossamer" in a court filing, but ChromaDex's complaint was crystal clear on this point. ChromaDex said that the information in the spreadsheet was conveyed by Morris to Elysium in April, and the spreadsheet iself was conveyed to Elysium in July. There is nothing nonsensical about that. Elysium is creating false contradictions by mischaracterizing the complaint. Time to pass around the sanctions!

We'll see what Judge Carney says, although I won't be surprised if he sends Elysium back to the drawing board based on the Local Rule 7-3 issue and also tells Skadden to check its word-processor settings for footnote spacing, and to file a bug report with Microsoft about how the footnote spacing in their copy of MSWord got moved from 1.0 to something significantly less than that without any human intervention.

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