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  • Writer's pictureShelly Albaum

When Will Elysium's SDNY Case Be Dismissed?

ChromaDex moved to dismiss Elysium's case in the SDNY in October 2017, and that motion was fully briefed in November 2017.

Elysium moved to dismiss ChromaDex's complaint in November 2017, and that motion was fully briefed in December 2018.

Judge Caproni stayed Discovery pending resolution of the cross-motions and order the parties to mediation.

Mediation occurred in January 2018, and did not result in a settlement.

On May 23rd, the case was transferred from Judge Caproni to Chief Judge McMahon, presumably to load-balance a congested docket.

But now we are approaching the one-year mark from when these motions were filed, with no resolution. Will the courts ever rule?

Mere mortals are left to guess, but the black belt lawyers who use Westlaw -- or at least the ones who upgrade to Westlaw Edge -- have a little more information to work with.

That's because Westlaw Edge -- among its AI-powered legal research features -- generates statistical data about the state and federal litigation (and litigators!), so we can actually see how long these kinds of things TEND to take. Check it out:

Judge Caproni was appointed to the federal bench in 2013, so she hasn't been there forever. If we just look at Motions to Dismiss in Commercial Law and Unfair Competition cases, then we can see how long it has taken her to rule in the past.

In breach of contract cases, there is a big range -- from a week to a year -- but the average is 127 days, and most rulings are handed down after between 48 and 205 days.

HOWEVER, in Unfair Competition cases, the story is different. Judge Caproni has had far fewer such cases -- just seven are noted -- and the average time to rule on Motions to Dismiss in such cases is 467 days, and sometimes over two years.

But Judge Caproni is no longer assigned to this case, so let's see the same statistics for our current judge, Chief Judge McMahon:

Chief Judge McMahon has been on the bench longer -- she was appointed in 1998, and she has seen more cases, although Unfair Competition still doesn't come up that often.

In breach of contract cases, Judge McMahon has an even bigger range than did Judge Caproni, although eerily they both tally exactly 127 days to rule on average in such cases. But most rulings are handed down by Judge McMahon on motions to dismiss in breach of contract cases after between 39 and 189 days -- a slightly tighter range.

But even with Judge McMahon, rulings tend to take longer in Unfair Competition cases, with the average being 230 days.

Why does it take so long?

Well, we can see from the charts that case complexity has something to do with it -- unfair competition cases consistently take longer than garden variety commercial law issues.

However, I suspect the REAL problem is that the Southern District of New York has become the white collar crime clearinghouse for President Trump's campaign advisors, and we haven't seen the worst of it yet.

I totally get it that fighting corruption in the White House is considered a higher priority than Elysium's concern that ChromaDex filed a citizen petition with the FDA and then emailed it around. Or even a higher priority than ChromaDex's complaint that Elysium was founded with the intent to wrest control of the NR market from ChromaDex and that Elysium executed an illegal, nefarious plan to do so.

However, it does mean that the SDNY may be too busy to get to us for quite a while yet.

I don't actually wish that we were before Judge Carney for this motion, but you have to give his Honor this: He consistently rules REALLY fast on motions. Let's take a look at Judge Carney's Westlaw Edge motion stats, shall we?

Thirty-six days on average for ruling on Motions to Dismiss in Breach of Contract actions, and 51 days on average for ruling on Motions to Dismiss in Unfair Competition cases.

Obviously it is an advantage to be sitting in Santa Ana instead of Manhattan -- other cases on Judge McMahon's Manhattan docket include securities class actions, fraudulent foreclosures, a 9/11 suit against the Kingdom of Saudi Arabia, and a surprising number of cases in which the defendant is named Trump.

But credit where credit is due: Judge Carney moves his cases along.

I hope Elysium's complaint in the SDNY gets thrown out tomorrow, but the data suggests that it could just as well be another year.


NOTE: Even legal bloggers need a day job, and mine includes, among other things, working with the outstanding team of product designers and developers who created Westlaw Edge.

I do not get any commission on sales of Westlaw Edge -- I wish! -- but I am very proud of my small contribution to an outstanding product. If the law firms involved in this case have not already upgraded to Westlaw Edge, they might get a demo so their clients could learn even more about the variations in trends and tendencies regarding motions and outcome among courts and judges.

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