Today was the due date for ChromaDex and Elysium to file briefs and exhibits regarding ChromaDex's motion to dispose of Elysium's original claims in New York based on Noerr-Pennington (First Amendment) immunity (originally a motion to dismiss, but converted by the Court to a motion for summary judgment).
I haven't seen Elysium's brief yet, but ChromaDex's brief is filed, and you can read it here:
In my coverage earlier this month I predicted that what Judge McMahon had characterized as Elysium's best argument was not actually going to work in the end, because it spoke to ChromaDex's subjective intent, and not the objective baselessness of the petition, and therefore was not going to be relevant to the final decision on Noerr-Pennington immunity.
ChromaDex agrees with that, noting, in response to Elysium's argument that ChromaDex allegedly knew about toluene in pterostilbene, after dispensing with the argument in other ways, "In any event, Elysium’s argument goes to ChromaDex’s subjective understanding and intent, and does not bear on the objectively baseless analysis."
But it's that "dispensing with the argument in other ways" the deserves attention.
I have sometimes suggested that the several score of us seated in an otherwise abandoned stadium are being treated to a display of world class lawyering, and we ought to have to buy expensive tickets and pay for overpriced beer in order to enjoy the privilege.
But the economy works in strange ways, so if you want to watch world class athletes chase a ball around you pay through the teeth, but if you want to watch world class lawyers perform comparable feats with logic and words, it's free for the taking.
I recommend that you indulge.
There is no conceivable way for me to properly characterize or summarize the kevlar-clad mountain of a battleship that Cooley just piloted into New York harbor. Wow.
The arguments are so clear, so compelling, and so well-supported that you should just allow yourself to be dazzled, and if the Court denies this motion for summary judgment I will be shocked.
Postscript: Peter Willsey helped write this breathtaking brief for Cooley, so if you are tracking the attorneys, I moved him to Alumni status too early, and I'll fix that.