So you might recall that last month the parties agreed to a scheduling order for the patent infringement case that more closely matched Elysium's favored dates, and gave us a trial date of September, 2021. We covered that here.
Two days later, as expected, Judge Connolly approved that schedule. He also ordered the parties to mandatory mediation with the Chief Magistrate Judge in Delaware, Mary Pat Thynge.
Today Judge Thynge issued an order governing that mediation conference. You can read Her Honor's order here:
The mediation will be held a month from today, on Wednesday May 27th, beginning at 10 am Eastern.
The logistics of the telephonic mediation shall be as follows: Plaintiff’s counsel shall make arrangements for a dial-in number for all counsel, including the Judge, to use throughout the mediation session. This line should be available throughout the mediation session should the Judge wish to have discussions with all parties. Plaintiff’s counsel shall also arrange for a separate line for their private discussions with the Judge throughout the mediation session. Defense counsel shall arrange for a separate line for their private discussions with the Judge throughout the mediation session. These lines should remain open for use by counsel and the Court until the mediation session is concluded...
Each party must be represented at the mediation teleconference by the following required participants: (a) trial counsel; (b) counsel who is/are familiar with the case; and (c) the party/parties and/or decisionmaker(s) of the parties, who must have full authority to act on behalf of the parties, including the authority to negotiate a resolution of the matter and to respond to developments during the mediation process... We don't know who the participants are from each side, but I would expect that Frank, Rob, and Mark will all be busy that morning starting at 7am Pacific.
We don't have high hopes for a mandatory mediation session. We're much more interested in the parties' voluntary mediation efforts with retired Judge Daniel Weinstein. We learned here that:
The parties had scheduled a private mediation for March 17, 2020, before the Hon. Daniel Weinstein (Ret.) in an attempt to resolve this action. Unfortunately, counsel learned on the evening of March 16 that one of the participants in the mediation was feeling unwell and, in an abundance of caution given the current COVID-19 outbreak, adjourned the mediation.
The reason that session got scheduled, we learned here, was because Elysium had suggested on January 21st, at a hearing before Judge Carney in California, that mediation with Judge Weinstein might be productive. Elysium's new counsel, Roberta Kaplan, told Judge Carney:
"Having litigated cases like this for 20-some years now, given where the bid-ask is, it's not a case that should go to trial. Frankly, it's a case that should settle...I personally have mediated cases with Judge Weinstein, Danny Weinstein, who's out here in L.A. where the parties were, frankly, far more antagonistic than they are here that Judge Weinstein was able to settle. So we would be amenable to doing something like that."
We don't take Elysium TOO seriously when they talk about how much they want to settle the matter, because it looks to us like all they really want to do is delay the outcome. ChromaDex's counsel responded as much at the January 21 hearing:
"Your Honor, just to give you a quick outline of where we've been before, the parties have attempted to mediate this on numerous occasions. In fact, the New York litigation involved a mediation. We had the mediation here before Magistrate Judge McCormick. All of the efforts have failed. And while we welcome working with the new counsel for Elysium, we also do think that the shadow of trial may be the only thing that brings the parties together."
And so now we are adding a THIRD court-ordered mediation to the calendar.
We do not have high hopes.
On the other hand, the fact that the parties are or were attempting the third-party mediation with Judge Weinstein suggests that -- for whatever reason -- both sides recognize that they have some interest in settling.
We don't know whether the Weinstein mediation session that was scheduled for March 17 ever got rescheduled, or if, in fact, it has already happened and there was no settlement.
However, last week Judge Carney vacated (due to COVID-19) the parties' in-person status conference that was scheduled for May 4 and replaced it with a joint written report still due May 4. The joint report, however, must contain an update on the parties' settlement efforts.
That means that a week from today, May 4, we'll get to read an update on the status of the case including settlement negotiations, so we'll find out then what happened with Judge Weinstein, if anything. The parties will also report to judge Carney the imminent mandatory mediation in Delaware, and maybe they'll say something about it.