You will recall that two months ago Elysium answered ChromaDex's amended complaint in New York and surreptitiously added new counterclaims for copyright infringement.
I used to worry that if I spent too much time as a litigation practitioner I would eventually violate some procedural rule, because there are a million such rules governing such minutiae as document length, paper color, and even font size. Everyone eventually screws one up; Cooley filed a brief three pages too long earlier in the litigation.
But I don't think I would have violated the rule that says you have to ask permission to amend your complaint, because even I noticed that requests to amend had been the protocol prior to April 10, 2019.
Two weeks later, ChromaDex took a hard stand against it, declaring Elysium's proposed amended counterclaims "null and void."
That left us in in awkward position for he past six weeks, because we haven't known exactly what claims Elysium was asserting against ChromaDex -- were the new counterclaims operative, or only the old ones.
Until now, we have had no way of knowing. But today Elysium filed a new request to amend their counterclaims, which you can read here:
Elysium also filed a red-lined version of the operative and the proposed counterclaims, so that we can see what's changed.
I don't actually care too much if Elysium's two left feet get tangled in their procedure. What I care about is when they write things in their complaint that are not true.
However, there is some indication that the Courts may be losing their patience with large law firm bullies that say things that may be technically true in some sense but are in practice deceptive.
The Ninth Circuit has called two large law firms to the carpet for exactly that kind of behavior -- in this instance creatively quoting from and characterizing cases and documents -- and now the firms have to explain to the Court how their brief can be understood as other than lacking candor.
We'll return to this issue in a subsequent post. It is relevant to our litigation because ChromaDex has characterized one of Elysium's claims in California as "fictional," and of course Elysium's characterization in its New York complaint of what has been stated in this Right of Assembly blog also contains disingenuous elements, as we discussed here. And even after I debunked those (e.g., here), they still appear in the newest complaint, which seems to me like a bad faith Rule 11 violation.
Elysium's Proposed Amended Counterclaims
Elysium has not been idle these past eight weeks.
I guess we'll never know whether Elysium's First Amended Counterclaims became operative, because this new filing is styled SECOND Amended Counterclaims, and adds additional allegations to what was filed in April. Among the new claims is this one:
ChromaDex affirmatively deceives its own customers into believing
that Tru Niagen is, like Basis, clinically proven to raise NAD levels (it is not – in fact, clinical trials prove the opposite, that Tru Niagen has no effect on NAD levels)...Tru Niagen has not been clinically proven to work at all...
Elysium attacks ChromaDex's two studies, but then says that
Elysium...truthfully discloses that, at its recommended daily intake (250 mg of NR and 50 mg of pterostilbene), its product Basis has been shown to increase NAD levels by 40%.
How Elysium can claim that NR does not raise NAD levels when ChromaDex says it, but it does raise NAD levels when Elysium says it, is puzzling to me.
Then the following new part seems to me just the kind of artful wording that bugged the Ninth Circuit:
Elysium’s Basis combines 250mg of NR with 50mg of pterostilbene to synergistic effect, and has been clinically proven to raise NAD levels by 40%. In a transparent attempt to convince consumers that its Tru Niagen works like Elysium’s Basis does, ChromaDex has repeatedly made false claims that its product also is clinically proven to raise NAD...
This passage seems to imply that the "synergistic effect" of NR and TP raises NAD levels, and therefore Niagen doesn't "work like Basis does" because it lacks the synergistic effect.
However, I am not aware of anyone who thinks that the role of PT is to raise NAD levels, or that the synergistic effects of the two relate to NAD. Happily, the attorneys remembered to insert a lawyerly comma between "synergistic effect" and "raise NAD," which I suppose will allow the attorneys, if challenged, to say "We only meant 'and', not 'because. So sorry for the ambiguity that somehow got deeply engineered into our sentence."
Also puzzling, Elysium asserts:
The Trammell Study also debunked this claim, showing no statistically significant increase in NAD levels even at an intake of 1,000mg per day.
But when I follow Elysium's link to the Trammell study, the abstract states:
We further show that single doses of 100, 300 and 1,000 mg of NR produce dose-dependent increases in the blood NAD+ metabolome in the first clinical trial of NR pharmacokinetics in humans. We also report that nicotinic acid adenine dinucleotide (NAAD), which was not thought to be en route for the conversion of NR to NAD+, is formed from NR and discover that the rise in NAAD is a highly sensitive biomarker of effective NAD+ repletion. (Expanded quote added 6/11/2019)
Apparently Elysium found something in discovery that they plan to use to say that the study results are invalid:
ChromaDex instead caused the study authors to adopt the misleading approach of aggregating the 300mg and 1,000mg results with those of trial participants who received 100mg and to report an aggregate result to create a statistically significant result. This obfuscation, however, cannot alter the fact that the data showed definitively that, at either 300mg or even at more than three times that amount, 1,000mg, Tru Niagen simply does not work to raise NAD levels. (emphasis added)
Having been personally subject to a bunch of Elysium legal prose that badly misrepresents what I say, what I do, and why I do it, I won't wager any opinions about these new counterclaims until after we see ChromaDex's answer.
Although we may see ChromaDex objecting to the motion to amend, first.
Motion for Leave to Amend
In support of its motion for leave to file a Second Amended Counterclaims, Elysium notes that it is only adding allegations, not claims (which might be true in relation to the April 10 filing, which is a reason to think that it became operative, but not with respect to the original counterclaims).
Elysium also notes that Discovery has just gotten started, and that "Elysium has acted promptly and in good faith in seeking leave to amend."
I have two eyebrows up on that one; one for "good faith in seeking leave" -- if that's the measure did Elysium not act in good faith in April? Second, are these new allegations even made in good faith, that Elysium's claim hat that the NR in Basis raises NAD levels is accurate, but ChromaDex's claim that the NR in Niagen raises NAD levels is false and misleading? And disputing the clear statement in the abstract of a published study -- is that frivolous, when Elysium is simultaneously asserting that the effect does occur with respect to its own product?
We'll see what ChromaDex says.