So now we have ChormaDex's Reply Brief in support of its motion to exclude three types of evidence -- References to Honig at al, References to a "Fraudulent Spreadsheet," and References to Royalty Refunds. You can read the Reply Brief here:
It's not a long document.
And it's not particularly important that this bit of potential Elysium mischief gets shut down, either. ChromaDex's other Motion in Limine, relating to Elysium's Patent Misuse expert, is ten times more important.
Still, ChromaDex makes some surprisingly strong arguments.
Honig & Friends
ChromaDex points out that Elysium's argument for referencing the Honig Group is because the individual allegedly retained some level of control over the company. But the influence and control are not demonstrated, nor was any influence shown to be relevant to a fact of consequence. ChromaDex says,
While Defendants do not oppose Motion in Limine No. 1, they still take five pages of their Opposition brief to explain how they intend to argue to the jury that Honig, Brauser, and Frost were supposedly involved with ChromaDex...
Defendants fail to explain how the past involvement of these individuals in ChromaDex is relevant to the claims and defenses in this case...Elysium’s suggestion that the early 2015 meeting “reflects ChromaDex’s plan to force Elysium out of the market by any means," is nonsensical; there was no such plan, and offering to purchase Elysium for a large sum of money when it had no revenues or track record in the supplement space is hardly “forcing” it from the market....ChromaDex decided to redirect its focus due in large part to the financial distress it was suffering due to Elysium’s misdeeds. Most importantly, none of this is connected to any issue the jury will be asked to decide in this case...
Defendants’ desire to say the names “Honig, Brauser, and Frost” at trial is apparently nothing more than an attempt to tie ChromaDex to these three individuals in the hope that a juror will recognize (or research) them...Consequently, even if those three names are somehow minimally relevant, Rule 403 would bar evidence about them being offered to the jury because of its very low probative value combined with the high risk of prejudice...
Elysium has not made a strong case for chanting "Honig" before the jury, so this motion will probably be granted.
Contrary to Defendants’ bare statement, there was nothing “hid[den]” and nothing “omitt[ed]” from that Spreadsheet. It was exactly what Jaksch said it was, and this fact alone precludes attachment of the prejudicial adjective “fraudulent.”...ChromaDex seeks only to prevent them from arguing that the Spreadsheet was dishonest before establishing a proper evidentiary foundation and requesting leave of the Court.
That is especially true in this case, where Elysium has alleged a counterclaim for fraudulent inducement against ChromaDex arising from a call on December 16, 2013, between Jaksch and Elysium’s cofounders. But that call is entirely unconnected to Elysium’s arguments about the Spreadsheet,...Defendants have never pled a fraud cause of action regarding the Spreadsheet, and their opening statement would be an inopportune and unfair time to seek to prejudice ChromaDex by attaching a label to it. And permitting Defendants to call the Spreadsheet “fraudulent” before the jury, without first showing a proper evidentiary basis, is unfairly prejudicial because it would confuse and mislead jurors about what it is Elysium is actually claiming.
"Argument does not belong in opening statements...It is not too much to ask Defendants to simply not characterize the Spreadsheet at all—as in, simply discuss what the Spreadsheet contained and what it did not—until they have laid the proper foundation. (emphasis added)
In the footnotes we see that Elysium is caught once again citing cases that don't well support its position:
Defendants cite to Allen v. Hylands Inc., 2015 WL 12720304, at *9 (C.D. Cal. Aug. 20, 2015), to support their request that the Court deny the Motion in Limine No. 2 in its entirety. But Allen actually granted a motion in limine to exclude pejorative terms such as “snake oil salesman,” “charlatans,” and “con artists,” and only declined to prohibit “similar derogatory terms . . . “without prejudice to more specific objections at trial.”
ChromaDex has made a number of strong arguments here, so this part of the motion will very likely be granted.
Royalty Return Evidence
Elysium does not oppose this motion, so the Court should grant it, says ChromaDex.