Elysium's Opposition to Motion in Limine for Three Things
ChromaDex filed two motions in limine in California -- one to exclude Iain Cockburn's expert testimony relating to Patent Misuse, and another one address to three distinction things -- (1) the Honig/Brauser/Frost stuff, (2) The phrase "fraudulent spreadsheet,"and (3) the return of royalties.
You can read the Opposition Brief here:
ChromaDex's complaint about the Honig/Brauser/Frost stuff is that it casts ChromaDex in a bad light, even though ChromaDex isn't charge with any wrongdoing, and the three accuseds weren't involved in the events at issue in this case.
Elysium says that Honig/Brauser/Frost "exercised significant control over ChromaDex during the time period relevant to this case...To the extent ChromaDex seeks to preclude evidence of any involvement of Honig, Brauser or Frost in any of the events relevant to this litigation, or to exclude evidence that they are or were investors in ChromaDex or members of its board, this motion should be denied. Elysium does not, however, intend to introduce affirmatively evidence of litigation or investigations involving Frost, Brauser or Honig, unless ChromaDex opens the door to that evidence coming in.
I don't know what to make of that.
ChromaDex says the spreadsheet isn't fraudulent, so that would be counterfactual and improper argument during opening statement.
Elysium says the Spreadsheet was an intentionally dishonest effort to lull Elysium to believe that ChromaDex was compliant with the MFN Provision.
I think Elysium might be wrong about the facts -- it's not clear to me that the MFN was violated, or that the examples cited by Elysium were excluded to deceive or for other reasons. But even if that was true on the merits, I don't know what the implications are for a Motion in Limine.
So I don't know what to make of that, either.
ChromaDex says that it refunded customer royalties in order to moot the Patent Misuse issue, and not because it that it was engaged in any kind of wrongdoing, so this information should not be misused for that purpose.
Elysium agrees with ChromaDex that patent misuse is properly tried to the
Court, not to the jury, agrees not to proffer evidence to the jury describing ChromaDex’s alleged termination of provisions in its NR supply agreement.
So I guess that issue is goes away.