Today in California Magistrate Judge McCormick announced the procedures for the upcoming Settlement Conference, and ChromaDex filed a request to use ten extra pages for its upcoming Partial Motion for Summary Judgment. You can read the documents here:
Settlement Conference
The Settlement Conference will be held on Thursday August 22 at 9:30am at the federal courthouse in Santa Ana. The parties are going to be submitting to the Magistrate Judge settlement conference statements that we would kill to see, but which we won't get to see, including a complete history of past settlement discussions, offers, and demands, as well as their respective likelihood of succeeding on their claims, the amount of attorney fees incurred, and the terms on which they think their opponent might be prepared to settle.
Summary Judgment Motion
ChromaDex is going to move for summary judgment on enough claims that the normal page limits don't seem adequate to recite the relevant facts. Elysium will oppose the motion.
ChromaDex's primary argument is that if they don't get a page extension, then they'll have to file multiple separate partial summary judgment motions, and it would be better to file just a single unified motion that covers all the claims:
Although the legal principles at issue are straightforward to apply, each counterclaim requires its own dedicated factual recitations and analysis. Because the parties and third parties together have produced over 96,000 documents and will have taken 25 depositions by the time the motion is filed, it is entirely reasonable to permit ten extra pages to both sides so that all of the issues may be addressed in mutual omnibus briefs.
Elysium allegedly predicted that, "The Court would not 'appreciate extensive additional briefing or have the necessary time to review and rule on the parties’ arguments.'”
Elysium would get extra pages, too, so why would they be opposing this?
It may be that Elysium does not have comparable opportunities to get its claims against ChromaDex dismissed on Summary Judgment because more of Elysium's claims are based on facts that are disputed, so they don't need the extra pages, and they'd like ChromaDex's briefing to be as constrained as possible.
My guess would be that, contrary to Elysium's suggestion, the Court would indeed welcome the opportunity to narrow the claims at trial if possible, and will welcome ChromaDex's motion, and allow additional pages for briefing, given that, as ChromaDex says, "There are over twenty claims and counterclaims currently at issue in this litigation, including the several separate breaches alleged under the parties’ agreements."
But we'll see the other side of the story if Elysium responds to ChromaDex's motion.
In the mean time, the really good news is that the parties have agreed they will file their respective Motions for Summary Judgment on August 16, which is just nine days from now. Once we see those motions, we'll have a much better sense of the claims that might be knocked out before trial, and the undisputed evidence around those claims.