And now we have Elysium's Reply Brief in support of its quest to get summary adjudication in its favor on the MFN claim, and to dispose of ChromaDex's trade secret claims on the ground that damages cannot be proved (as well as to dispose of one contractual source of a confidentiality obligation). Read it here:
We have disputed Elysium's theories on these points extensively, and there is no need to rehearse all that again in this post, so I won't. But Elysium's Preliminary Statement in this Reply Brief offers such an extreme "Alternate Reality" view of the world, that we might as well just let them run with it:
For years, ChromaDex grossly overcharged Elysium for NR in violation of the MFN Provision of the parties’ NR Supply Agreement, before effectuating its scheme to seize the direct-to-consumer NR market for itself by seeking to eliminate not just Elysium, but its other NR customers as well. Rather than challenge Elysium’s irrefutable proof that it overcharged Elysium by millions of dollars and refused to issue the required refund or credit, ChromaDex instead tries in vain to manufacture an ambiguity that does not exist in the plain language of the MFN Provision, much of which ChromaDex itself drafted. But its failure to offer any alternative reading of the MFN Provision at all, let alone a plausible one, dooms ChromaDex’s opposition...
That account strikes me as profoundly untrue. Are they on drugs?
Then Elysium takes extensive issue with ChromaDex's statement of facts -- the very same statement of facts that I published with an OMG headline here.
Elysium says that the statement of facts I found so interesting is a "diatribe" largely focused on Elysium's contacts with [REDACTED] [I guess Grace? I'm going to write "Grace" because it seems to be very public knowledge now that Grace is ChromaDex's "contract manufacturer"] and Dartmouth and that that discussion "has no bearing on this motion and is packed with unsupported, misleading, and outright false statements."
Elysium says that "beneath the hyperbole and insinuation," Elysium merely reached out to ChromaDex's contract manufacturer and its patent licensor and discussed doing business with them. But in fact Elysium's contacts with Grace and Dartmouth had no conceivable effect on ChromaDex because Grace continued as ChromaDex's contract manufacturer, and Dartmouth continued as ChromaDex's exclusive patent licensor.
Elysium would have us believe that if Elysium's alleged efforts to change that state of affairs failed, then nothing bad happened. Or at least nothing relevant happened. "In other words," says Elysium, "Elysium's contacts with Grace and Dartmouth harmed ChromaDex not a whit."
Can you believe this shit?
Nor does ChromaDex allege that those contacts entailed the disclosure of any of ChromaDex’s purported trade secret or confidential information.
WHAT???
I could have sworn we had an email from Elysium to Grace saying that Elysium would have to "follow ChromaDex to San Diego," thereby disclosing to Grace confidential information about ChromaDex's supply plans that Elysium must have got from Mark Morris. Here it is, Exhibit 58 attached to ChromaDex's MSJ Opposition:
How is that not a "contact entailing disclosure of confidential information?" Is Elysium claiming that Dan proposed this message to Eric, but they never in fact communicated this information to Grace? We don't have full access to the exhibits, so we can't evaluate that possibility.
Next Elysium lists all of the allegedly confidential information that ChromaDex had not maintained in confidence but instead disclosed publicly via SEC filings. There seem to be some of those. So Elysium says,
"Stripped of rhetoric, then, the devious "backup plan" ChromaDex describes consists of using pubic information to develop a new source of NR."
If Elysium said "consists EXCLUSIVELY of using public information," that would be a big allegation. But I am only hearing the smaller allegation here, that at least some of the allegedly stolen information was also publicly available, and I'm not sure that changes anything.
Elysium says the same thing about pricing data -- ChromaDex freely shared that. I don't think the evidence says so, but Elysium says so.
Having set the facts straight, Elysium moves to the law:
"The MFN Provision Is Unambiguous As a Matter of Law and ChromaDex Breached It."
I would have said the opposite; it was ambiguous as a matter of law.
Next comes a lot of hornbook type stuff about how you can tell when a contract is ambiguous. Kind of weird to get this in the Reply Brief, and not the Opening Brief, unless ChromaDex had justified it by making a strong case for ambiguity, which, you'd think, would end the story. We'll let the court sort it out. I would expect the Court both to find the contract ambiguous and Elysium's proposed interpretation unreasonable.
I don't see anything new in Elysium's arguments against trade secret damages or consideration for the July Confidentiality agreement.
I think that's because the parties have argued themselves out and the arguments are now on the table and there is nothing left to do or say but await a decision. But it could just be fatigue on my part from having to review so many documents -- and a few of the things I have read have made me wonder whether some of the attorneys are experiencing fatigue also. I wouldn't blame them.