UPDATED JANUARY 20, 2020: As we predicted, Judge Liman denied Elysium's motion almost entirely, finding that Elysium's motion was "opportunistic" and "smacks of bad faith." There were a couple very minor items that ChromaDex did not oppose, like Elysium's withdrawing its copyright infringement claim against ChromaDex, and those items Judge Liman of course allowed. Order Granting in Part and Denying in Part Elysium's Motion to Amend Counterclaims.
UPDATED DECEMBER 29, 2020:
ChromaDex has filed its opposition to Elysium's bid to amend its complaint. The opposition brief evidences the first-rate lawyering that we are used to from ChromaDex's counsel. You can read the opposition brief here:
There are so many reasons for the Court to deny Elysium's bid that I find it highly unlikely that the amendment will be allowed. ChromaDex points out that Elysium waited too long, Elysium isn't entitled to enforce the FDA Act, the statements at issue aren't false, accurately reporting the results of scientific research is protected by the First Amendment, Elysium itself has engaged in activity similar to what it now denounces, etc. There is a great deal of rich detail in the brief, including some additional information about the contentious ZenDesk discovery. Here is the bottom-line: "Elysium’s motion should be denied because the proposed new allegations are not connected to Elysium operative counterclaims. Even if Elysium could satisfy this threshold requirement (which it cannot), leave should be denied because (1) the motion is made in bad faith after an inordinate delay, and, if granted, would result in undue prejudice; and (2) the proposed supplementation is futile. "
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Elysium has proposed to file in New York a 4th Amended Counterclaims that would add ChromaDex's communications regarding the COVID-19 research as additional instances of alleged false advertising. You can read the proposed 4AC here:
I'm not going to review all of the details here, because if you've already read the FDA warning letter and you don't like that, you won't like Elysium's proposed complaint for all the same reasons.
And possibly for some additional reasons, too.
I would point out first that Elysium has its own study involving NR and COVID-19. There's nothing wrong with Elysium's studying this. Elysium doesn't do anything wrong by supporting this study, and Elysium won't be doing anything wrong if they describe the results of the study (if there ever are results). I do not understand how describing the results of scientific research can ever be false advertising, unless the descriptions are inaccurate.
I would also point out that Elysium wasn't troubled by this research until the FDA sent out warning letters to what appears to be a large number of recipients along with ChromaDex. If it didn't occur to Elysium that there might be anything wrong with what ChromaDex was doing -- even though Elysium had an active false advertising suit against ChromaDex! -- I can see why.
What I cannot see is how conflating the FDA's enforcement of the DSHEA rules with the Lanham Act's very different regulatory scheme makes any sense at all. If every FDA warning letter turns into a false advertising claim by every recipient's competitor, then the FDA is not going to be able to do its job. Maybe the FDA is right to be insanely vigilant around this issue -- I don't think so, but maybe. If so, they ought to be allowed to do that without creating third-party civil liability for all the companies they are supposed to be regulating.
The idea that the FDA closely studied and carefully evaluated what ChromaDex was doing also seems to me especially farfetched, given that the FDA has STILL not responded to ChromaDex's petition for help with competitors who do not file legally required NDI Notifications. It has been almost three years since the FDA assured ChromaDex that ChromaDex's petition was under "active review" by FDA staff. Check it out -- this was from 34 months ago:
My sense is that the FDA is overwhelmed. That may be completely understandable. But if true, it would suggest that the courts shouldn't be doubling down on everything the FDA does in haste by allowing inferences that implicate other causes of action under different statutes.
I am sorry to note, as well, that this blog, Right of Assembly, makes another cameo appearance in Elysium's proposed complaint.
We have a page summarizing some of the COVID-19 immune research involving NAD levels. I am trying on this page to just summarize the research, which I think is an important public service, even if I'm not the only one doing it, and it is protected by the First Amendment. Just to be sure, I have a pretty prominent disclaimer that there is no scientific study that says that NAD replenishment by any method treats, cures, or prevents any disease, including COVID-19.
The FDA hasn't sent me a Warning Letter. If the FDA thinks I have said something improper, I would fix it. I think it's all correct, though.
Too, if Elysium has any complaint about the accuracy of anything I have written anywhere on my blog, but on this COVID-19 page in particular, they are free to point out the errors. And if there are errors, I will be sure to fix them.
But Elysium has not contacted me with any suggestion that anything I have written about the research is incorrect.
That's why I find it just completely outrageous that they describe my blog in their proposed Fourth Amended Counterclaims as having "a specific page devoted specifically to the COVID-19 misstatements." They don't identify any misstatements on my blog. The FDA hasn't identified any misstatements on my blog. The page on my blog is certainly not devoted specifically to COVID-19 misstatements. And to the best of my knowledge no "misinformation about NR...remains accessible to consumers on the right-of-assembly.org" website.
The litigation privilege allows lawyers to say things that would otherwise be defamatory in a court pleading, but it's not a best-practice to do so. Rule 11 prohibits lawyers from making knowingly unfounded assertions in papers filed with the court, too. I was hoping that when Elysium switched law firms, the style of advocacy we would see would change, as well, but I don't think it has.
In a soon-to-be-published blog article we will look at a transcript from a discovery hearing before Judge Liman. It's pretty clear in the transcript that Judge Liman doesn't want to address matters before the parties themselves have had a chance to resolve them. All federal courts work that way; it's known as the meet-and-confer requirement.
The policies underlying the meet-and-confer requirement would counsel that if Elysium has an actual complaint with something on my website that they think is legally cognizable and worth bringing before a federal judge, they ought to try to resolve the matter with me, first. Elysium's failure to do so makes me think they don't actually have any substantive complaint with my website, and their purpose in mentioning my blog is not to solve a problem but to create one. That's not a proper use of the legal system.
Unexpectedly, Elysium's motion to file the 4th Amended Counterclaims also includes a request to withdraw Elysium's copyright infringement claim. You will recall that a small image in a ChromaDex ad appeared to be identical to an image used in an Elysium ad. There is no indication as to why Elysium is withdrawing the claim. I would guess that ChromaDex turns out to have had a valid license to the image.
ChromaDex will undoubtedly oppose this application -- especially if allowing the new claims would delay the case overall. We'll see what they say.