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  • Writer's pictureShelly Albaum

Adding a Plaintiff in Delaware

Updated: May 4, 2020

It's been more than a month since we've had any significant legal events to report on.

Specifically, I have NOT reported on an updated protective order in Delaware, because who cares.

I also did not report on ChromaDex's delivery of its infringement contentions this week. We do care about these, a lot:

We would love to see the reasons why ChromaDex thinks Elysium's Basis infringes the Dartmouth patents, even if we can guess. Just like we would love to see the interrogatories Elysium sent to ChromaDex the same day.

Unfortunately, although the docket reveals the existence of these documents, they are merely exchanged between the parties and not filed with the Court. Therefore, we don't get to see them unless they get attached to some future motion as exhibits.

This is slightly frustrating this week, but it is going to be EXTREMELY frustrating next month, when Elysium delivers to ChromaDex its Invalidity Contentions and its Non-Infringement Contentions, that explain Elysium's theory of the case. I'd kill to know that, and investors assessing the status of the litigation would REALLY want to see those things. For example, if we take a look at Elysium's arguments and decide they're complete bullshit, that's a very different story from if we look at Elysium's arguments and realize that they are asserting something plausible that we did not think of.

Eventually we'll find out Elysium's theory of the case, assuming the case does not settle first, but we would like to know now, ASAP, which we will not, unless the attorneys, the parties, or somebody else who knows the content of the documents somehow discloses it, which probably will not happen.

So I'm peeved about that.

But there are other things to blog, it turns out, because today ChromaDex filed an opposed motion to amend its complaint in Delaware. You can read the opposed motion here:

Amended pleadings are so commonplace in litigation that we have seen them so far in every case. The rule is that the Courts liberally allow amendments to pleadings, unless there's some very good reason not to, like one party delayed improperly and the other was harmed by the delay.

This particular amendment appears to be such a simple and obviously permissible matter that one REALLY wonders why Elysium is bothering to oppose it.

All ChromaDex is doing is adding an additional plaintiff -- Healthspan -- to join the existing plaintiffs ChromaDex and Dartmouth. Healthspan, of course, is the company that developed the Tru Niagen brand, which ChromaDex bought in March, 2017, after Elysium did what it did.

The technical legal issue involves whether Healthspan is a subsidiary or an affiliate, and whether a subsidiary or an affiliate can be a plaintiff in the case.

ChromaDex's says that in September, 2019, they re-did the contract with Dartmouth to retroactively clarify that affiliates like Healthspan were exclusive patent licensees, and so Healthspan is a proper plaintiff in a patent infringement case.

At the time of the contract amendment, the case was stayed. The stay was lifted in February, and in March ChromaDex proposed to add Healthspan as a plaintiff. Elysium said no, negotiations failed, and so this motion was filed in April. The deadline for amending pleadings is in July.

Elysium's resistance appears to be futile, because they can't show undue delay when we're within the permitted pleading period, and they can't show prejudice when the amendment involves an already known entity and fact discovery doesn't close until 2021. It's actually not that easy to find cases in which proposed pleading amendments were denied.

We'll get to see Elysium's opposition brief soon, but there are basically three options. Either (1) Elysium will share some new information that shows us how bad ChromaDex was to not propose this new plaintiff when it first became possible eight months ago while the case was stayed, and how much harm that delay has caused them, (2) Elysium will make some bullshit arguments that make us think that they are just opposing everything, or (3) Elysium thinks that Healthspan isn't a proper plaintiff, and they want to use this motion to amend as the place to make that argument, rather than allowing the amendment and then moving to dismiss as the complaint as to Healthspan.

None of these options seems very likely. I can't conceive of how this kind of amendment in this time frame would be prohibited. It also makes no sense for Elysium's counsel to antagonize everyone gratuitously. And, it makes no sense for Elysium to oppose this plaintiff by trying to block the amendment, which will be extremely difficult, rather than trying to dismiss the case as to that plaintiff, which, if their argument is any good, would be easy enough to accomplish, and would not come with so many presumptions against them.

So there is something more here than meets the eye, but I can't guess what.

And why should Elysium even care if Healthspan joins the other two plaintiffs? Does that somehow open the door to some new discovery that Elysium doesn't want to expose itself to? If so, how?

Perhaps we will get a clue when we see Elysium's opposition brief.

But in all honestly, I'd much rather see Elysium's invalidity and non-infringement contentions.


UPDATE May 4, 2020:

ChromaDex today filed "redacted" exhibits in support of their motion to amend the complaint. You can read the exhibits here. Among the exhibits are the original and amended Dartmouth agreements, and an email exchange between the attorneys discussing the propriety of the proposed amendment. From this exchange, we can extract the full text of Elysium's grounds for opposition, which are as follows: "The information you have provided does not persuade us that Healthspan Research, LLC should be joined as a plaintiff in this case."

I see.

Perhaps Elysium's opposition brief will expand on that.

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