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  • Shelly Albaum

Elysium's Supplemental Opening Brief



As you will recall, earlier this month Judge Carney delayed the California trial and delayed his rulings on the parties' evidentiary motions, so he could review supplemental briefing on the parties' summary judgment motions.


You will also recall that the parties moved for summary judgment on more than a dozen claims, but Judge Carney only asked for supplemental briefing on a few issues.


Specifically, for the Trade Secret Claims, His Honor wants the parties to explain "What specific evidence shows (or disproves) that Elysium’s and Mark Morris’ trade secret theft and use caused" the various damages that ChromaDex claims it suffered -- but primarily how did Elysium's trade secret theft allow Elysium to stay in business and make $30M that should have gone to ChromaDex?


Elysium is trying to get summary judgment on this issue, so it is Elysium's burden to show that the evidence is so clear that no jury could find that Elysium relied on the stolen trade secrets.


I haven't read these new materials yet, but it is likely that Elysium will argue that the evidence shows that the only information it relied on was not in fact a trade secret, or, more confusingly, that although it DID IN FACT rely on trade secrets, it did not need to, and could have gotten to the same place even if it didn't have the trade secrets. I'm not sure that latter theory is even viable, but I won't be surprised if Elysium at least argues it.


It is important to keep in mind, though, that Elysium is fending off a barrage of different claims, only some of which are at issue in this briefing. For example, the fact that some confidential information that Morris shared with Elysium turns out not to be a trade secret would prevent a Trade Secret claim, but it would not necessarily prevent a Breach of Fiduciary Duty claim, if Morris breached a fiduciary duty by sharing the information and if Elysium relied on it.


For the Patent Misuse Claim, His Honor wants the parties to explain "What recovery is still available and sought on Elysium’s patent misuse claim given the Purge, and under what authority."


ChromaDex is trying to get summary judgment on this issue, so it is ChromaDex's burden to show that there could be no damages. However, that is not the argument that ChromaDex made in its opening brief for summary judgment. Instead, ChromaDex argued that the underlying Patent Misuse did not occur in the first place, not that it resulted in no damages.


So what's probably going on here is that Judge Carney doesn't want to wade into the dense jungle of law at the intersection of Antitrust and Patent, and would love to just get rid of this thing on a different issue -- it will be easier to decide that there were no damages than it would be to decide whether trademark licenses represent a market to which a patented product could be tied.


So now we get treated to a rare spectacle -- Attempted Proof of a Negative. Elysium is going to argue that ChromaDex COULD NOT possibly show that Elysium's trade secret theft resulted in harm to ChromaDex. That's what today's brief is about.


But next comes ChromaDex's Responsive Brief, in which ChromaDex will in fact show how Elysium benefited from theft of trade secrets. I would much rather read Elysium's refutation of ChromaDex's theory, rather than read Elysium's argument that ChromaDex COULD HAVE NO PLAUSIBLE THEORY a few days before we see the plausible theory.


But the logical order is reversed on this issue.


It isn't reversed on the Patent Misuse Claim. First we'll see Elysium explain how it might have been harmed despite the fact that ChromaDex unwound the challenged behaviors as thoroughly as one can imagine. After that, we'll see ChromaDex tear into that argument.


So I am going to hold off on my analysis of both issues until we have ChromaDex's opposition brief, and we can compare the strength of the two sides.


But if you would like to read Elysium's opening brief and exhibits before then, here they are:


Elysium's Opening Supplemental Brief

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6

Exhibit 7

Exhibit 8

Exhibit 9

Exhibit 10

Exhibit 11

Exhibit 12

Exhibit 13

Exhibit 14

Exhibit 15

Exhibit 16

Exhibit 17

Exhibit 18

Exhibit 19

Exhibit 20

Exhibit 21

Exhibit 22


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