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  • Shelly Albaum

Cross-Motions for Summary Judgment


Today the parties filed cross-motions for summary judgment, each trying to avoid trial based on the evidence so far produced.

Most commonly summary judgment is sought by defendants asserting that based on the evidence actually produced, viewed in the light most favorable to the plaintiff, simply could not support a judgment against the defendant, and so the claim must be dismissed.

However, it is possible too for plaintiffs to seek summary judgment, asserting instead that based on the evidence actually produced, viewed in the light most favorable to the defendant, no reasonable jury could rule in favor of the defendant, and therefore judgment must be entered in favor of the plaintiff.

The parties' opening briefs are below, along with numerous attached exhibits which constitute the evidence relied upon for the motions.

ChromaDex's Brief in Support of Its Motion

ChromaDex's Motion for Summary Judgment

ChromaDex's Statement of Uncontroverted Facts

ChromaDex's Motion to Seal

Declaration of Frank Jaksch

Exhibit 1 (too big to upload, but it's just an investor show)

Exhibit 2 (Investor Presentation, Sep 2017)

Exhibit 3 (Marketing Materials)

Exhibit 4 (FDA GRAS Notice)

Exhibit 5 (FDA NDI Notice)

Exhibit 6 (FDA NDI Notice)

Exhibit 7 (Elysium's purchase orders)

Exhibit 8 (THORNE Niagen Supply Agreement)

Exhibit 9 (Draft Niagen Supply Agreement)

Exhibit 10 (Emails regarding contract negotiations)

Exhibit 11 (Royalty provisions moved to license agreement)

Exhibit 12 (Emails re: splitting into two agreements)

Exhibit 13 (Emails re: bifurcated agreement)

Exhibit 14 (Email re royalty paid on sales base)

Exhibit 15 (Email re negotiations)

Exhibit 16 (Email re negotiations)

Exhibit 17 (Elysium Niagen Supply Agreement, Feb-2014)

Exhibit 18 (Elysium Trademark License and Royalty Agreement)

Exhibit 19 (Elysium Niagen Supply Agreement, Jun-2014)

Exhibit 20 (Morris Email re Pterostilbene combination exclusive)

Exhibit 21 (Supply Agreement Amendment, Feb-2016)

Exhibit 22 (CDXC Response to Interrogatories)

Exhibit 23 (Niagen Brand Use Guidelines)

Exhibit 24 (Text messages between Alminana and Morris starting Jul-2015)

Exhibits 25-50 (many things, and the only copy of some things!)

Exhibit 26 (July 14, 2016, Email listing potential manufacturers)

Exhibit 27 (email regarding highly confidential manufacturing process)

Exhibit 28 (June 28 purchase orders for $400)

Exhibit 29 (Emails re shipment of giant order)

Exhibit 30 (Elysium notices alleged breach of contract)

Exhibit 31 (Emails re alleged breaches)

Exhibit 32 (Notice of non-renewal)

Exhibit 33 (Email re Elysium's inventory post-termination)

Exhibit 34 (Emails re Elysium's January 2017 production deadline)

Exhibit 35 (January 2017 emails from Morris -- panic over dwindling supply)

Exhibit 37 (January 2017 emails re difficulty scaling production)

Exhibit 38 (February 2017 emails re production schedule)

Exhibit 39 (April 2017 emails re Acetamide in Mystery NR)

Exhibit 40 (May 2017 email increasing allowable Acetamide by 5x)

Exhibit 41 (Certificates of Analysis for Mystery NR)

Exhibit 42 (Filed under seal)

Exhibit 43 (Filed under seal)

Exhibit 44 (Elysium's Answer in DE Patent Infringement case)

Exhibit 45 (DE order granting stay)

Exhibit 46 (CDXC Communications Strategy slides)

Exhibit 47 (Letter from Cooley to Skadden objecting to Acetamide false allegations)

Exhibit 48 (emails re expert deposition scheduling)

Exhibit 49 (Morris emails re Acetamide analysis)

Exhibit 50 (Email warning Morris of false positives on Acetamide analysis)

Exhibits 51-78 (many things, and the only copy of some things!)

Exhibit 51 (Emails re Acetamide testing)

Exhibit 52 (Emails re Acetamide testing)

Exhibit 53 (Test results for Acetamide in old Niagen)

Exhibit 54 (Emails re Acetamide testing and a dog study)

Exhibit 55 (CDXC Meeting Minutes re Acetamide testing)

Exhibit 56 (Filed under seal)

Exhibit 57 (Elysium email re GMP facility)

Exhibit 58 (Elysium notices alleged GMP breach to ChromaDex)

Exhibit 59 (Elysium emails re Acetamide levels)

Exhibit 60 (Cooley and Skadden discuss Acetamide allegations)

Exhibit 61 (Elysium's first draft of a partnership agreement)

Exhibit 62 (Elysium's Initial Disclosures)

Exhibit 63 (Elysium's Amended and Morris's Initial Disclosures)

Exhibit 64 (Elysium's responses to interrogatories)

Exhibit 65 (Filed Under Seal)

Exhibit 66 (Notice of deposition of Elysium)

Exhibit 67 (Thorne, CDXC Trademark License Agreements)

Exhibit 68 (Deposition of Thomas Varvaro)

Exhibit 69 (Deposition of Thomas Wilhelm)

Exhibit 70 (Deposition of Dan Alminana)

Exhibit 71 (Deposition of Ian Michael Cockburn)

Exhibit 72 (Deposition of Frank Jaksch)

Exhibit 73 (Deposition of Daniel Magida)

Exhibit 74 (Deposition of Eric Marcotulli)

Exhibit 75 (Deposition of Ramon Padilla)

Exhibit 76 (Deposition of an unnamed Elysium supplier)

Exhibit 77 (Expert report of Iain Cockburn)

Exhibit 78 (Expert report of Randall Heeb)

Exhibit 79 (Expert report of Carla Kagel)

Exhibit 80 (Supplemental expert report of Carla Kagel)

Brief in support of MSJ

Declaration of Barrett Anderson

Statement of Uncontested Facts

Elysium's Brief in Support of Its Motion

Elysium's Motion for Summary Judgment

Elysium's Proposed Order

Elysium's Statement of Uncontroverted Facts

Declaration of Mark Morris

Declaration of Joseph Sacca

Exhibit 1 (Dan Alminana deposition)

Exhibit 2 (Thomas Wilhelm (Elysium GC) deposition)

Exhibit 3 (Mark Morris deposition)

Exhibit 4 (2013 mail re early contract negotiations)

Exhibit 5 (Trademark License and Royalty Agreement)

Exhibit 6 (ChromaDex's notice of non-renewal)

Exhibit 7 (June 30 Purchase Orders)

Exhibit 8 (Frank Jaksch message re purchase quantities)

Exhibit 9 (CDXC emails discussing direct to consumer strategy)

Exhibit 10 (Thomas Varvaro deposition - MFN Pricing)

Exhibit 11 (Emails between Mark Morris and Elysium)

Exhibit 12 (Healthspan agreements)

Exhibit 13 (Rob Fried Deposition)

Exhibit 14 (Form 8-K re Frank Jaksch)

Exhibit 15 (Rob Fried message re Healthspan)

Exhibit 16 (CDXC direct-to-consumer planning Nov-2016)

Exhibit 17 (Form 10K Dec-2017)

Exhibit 18 (CDXC direct-to-consumer planning Nov-2016)

Exhibit 19 (Answer in Novex lawsuit (Utah))

Exhibit 20 (Form 8K - Fried appointed COO)

Exhibit 21 (Filed under seal)

Exhibit 22 (2014 purchase orders)

Exhibit 23 (2015 purchase orders)

Exhibit 24 (2015 purchase orders)

Exhibit 25 (2015 purchase orders)

Exhibit 26 (2015 purchase orders)

Exhibit 27 (2015 purchase orders)

Exhibit 28 (2016 purchase orders)

Exhibit 29 (2016 purchase orders)

Exhibit 30 (Request for MFN info May 30-2016)

Exhibit 31 (Infamous blinded spreadsheet)

Exhibit 32 (Frank Jaksch deposition)

Exhibit 33 (Jaksch/Almanana emails re MFN pricing)

Exhibit 34 (June 28-2016 purchase orders)

Exhibit 35 (June 29 emails between Jaksch and Almanana)

Exhibit 36 (Aug 10 emails to Tom Varvaro re contract)

Exhibit 37 (Deposition of Eric Marcotulli)

Exhibit 38 (Eric Marcotulli's notes re June 30 call)

Exhibit 39 (Will Black deposition, MFN pricing)

Exhibit 40 (June 30 post-call email, updated POs)

Exhibit 41 (June 30 post-call emails)

Exhibit 42 (Emails exchange with Alminana re alleged breaches)

Exhibit 43 (Filed under seal)

Exhibit 44 (Mark Morris interrogatory responses)

Exhibit 45 (Messages with competitive pricing info)

Exhibit 46 (Expert report of Lance Gunderson - damages)

Exhibit 47 (Deposition of Lance Gunderson)

Exhibit 48 (8k - Thorne supply agreement)

Exhibit 49 (June 2016 emails re Live Cell pricing)

Exhibit 50 (June 28-30 emails)

Exhibit 51 (Filed under seal)

Exhibit 52 (CDXC responses to Morris interrogatories)

Exhibit 53 (Lance Gunderson report - Trade secret info)

Exhibit 54 (scenario planning for big order)

Exhibit 55 (CDXC testing methods used by Elysium)

Exhibit 56 (ChromaDex test results)

Exhibit 57 (Elysium's GRAS dossier from CDXC)

Exhibit 58 (10-Q, April 2016)

Exhibit 59 (ChromaDex's GRAS Notice)

Exhibit 60 (CDXC's list of misappropriated trade secrets)

Exhibit 61 (CDXC's supplemental initial disclosures)

Exhibit 62 (Thomas Varvaro deposition)

Exhibit 63 (Mark Morris separation checklist)

Exhibit 64 (Mark Morris July confidentiality agreement)

Exhibit 65 (Iain Cockburn expert report)

Exhibit 66 (Elysium's MFN damages calculation - P&G)

Exhibit 67 Elysium's MFN damages calculation - Others)

Exhibit 68 (Lance Gunderson Supplemental Report)

That's a lot to absorb; I will return with analysis later, but I am posting the documents in advance of that so others can view the materials and draw their own conclusions.

The fact that the law firms waited so late in the evening to file their documents -- just a few minutes before midnight -- could mean that they were both polishing until the last minute, but I doubt it. The clients signed off on these briefs days ago, and there are only so many citations to check. I think it's more likely that the firms and parties are not on great terms right now, and neither wants to give the other a few extra hours to prepare their opposition briefs, which are due in just 12 days.

Last week ChromaDex asked for ten extra pages for this filing, which is a pretty routine kind of request, and Elysium opposed it; the same day, Elysium asked for special redaction rules and ChromaDex opposed it. [Both motions were denied.] You can hardly guess how happy these attorneys were the day they were offered jobs at Cooley and Baker Hostetler. But that was then, and this is now; not many of them will get to enjoy Labor Day weekend barbecues this year.

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ANALYSIS COMING SOON

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#CDXC #ChromaDex #ElysiumHealth #Litigation

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