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  • Writer's pictureShelly Albaum

Joint Statement in New York

New-New York Judge Lewis Liman asked the parties to submit a joint statement getting him up to speed on the history and current status of the case. The statement was due yesterday and submitted yesterday and you can read it here:

This blog's readers already know that the New York litigation is where the parties' false advertising and unfair competition claims are being litigated, so there isn't much news, but there are several things worth noting.

First, at the end of the document we learn that the parties have settlement talks scheduled in a couple weeks:

The parties are discussing a potential resolution of this action and have scheduled a private mediation on March 17, 2020 before the Hon. Daniel Weinstein (Ret.).

I don't hold out much hope, but everyone conceded during recent California hearings that the matter ought to settle, so we'll see.

Second, although Elysium's failed attempt to get a 4-month delay in New York left the impression that ChromaDex was only willing to tolerate a one-month delay, this new filing suggests that ChromaDex would actually welcome a one-month delay in order to do some last minute discovery on the newly amended pleadings. The parties jointly said,

The parties respectfully leave any extension of the deadlines to the Court’s discretion. However, both sides believe that an extension of at least one month of all deadlines would be appropriate. Such an extension would allow the parties to seek limited additional discovery related to the amended pleadings, review all the produced documents, prepare for and complete depositions in an organized manner, and devote resources to a productive mediation (as described below).

Incidentally, both of the proposed newly amended pleadings in New York were accepted by the Court based on the parties' consent, so the current operative pleadings in this case are now:

Third, contrary to Elysium's heated, frothy arguments in support of its doomed effort to win a delay in New York, the parties' joint statement now concedes that:

The document discovery deadline in this action was February 24, 2020. ChromaDex produced nearly 15,000 non-privileged documents, spanning approximately 95,000 pages, in response to Elysium’s requests for production. Elysium has produced approximately 37,000 pages.(emphasis added)

"...Upon appearing in this matter, Elysium’s new counsel became aware that both parties’ prior counsel had engaged in minimal discovery to date...Prior counsel for both parties, perhaps focusing on the California Action, did not produce a single document..." (emphasis added)

So two weeks ago Elysium tells the Court that ChromaDex "did not produce a single document;" and now Elysium tells the same Court with a straight face and no explanation or apology, that ChromaDex actually produced 15,000 documents.

Fourth, if no significant further delays are approved, with a joint pretrial order due on August 28, 2020, I think we could anticipate trial in the fall of 2020 or winter 2021 -- so, about a year from now.

Fifth, Elysium says bluntly in their pretrial order something startling that I think is present in their complaint but not so explicit, so I'll repeat it here:

"...A comparison of the clinical studies of the effects of NR versus the clinical studies of the effects of NR plus PT suggest that NR and PT have a synergistic effect that significantly increases NAD+ levels....ChromaDex’s own clinical study showed no statistically significant increase in NAD levels among participants taking Tru Niagen. Elysium believes that result is because of the lack of PT in Tru Niagen...."

If I am reading that right, Elysium now claims that NR by itself does not raise NAD levels, and only is effective in the presence of PT due to some unspecified "synergistic effect."

Sixth, ChromaDex's brief summary of its false advertising claims against Elysium is helpful, so I am reproducing it below. Elysium has its own brief summary, which you can read in the document, but I am not going to reproduce it below because I would be tempted after every single sentence to provide obvious rebuttal information, and this would turn into a really long post.

But here is ChromaDex's summary, which seems to me mostly straightforward and true:

"...Specifically, Elysium falsely advertises to consumers, inter alia, that: (i) it was the “first” to market a supplement proven to raise NAD+ levels, implying that it (instead of ChromaDex) is the pioneer in this space; (ii) it was involved in the 25+ years of research and development surrounding NR (Elysium was not founded until 2014); (iii) FDA approves or endorses Basis (FDA does not); (iv) Basis is backed by clinical studies (even though the studies were based on ChromaDex’s NR); (v) it is the exclusive licensee of a patent for the use of NR in slowing aging (ChromaDex is the licensee); (vi) Basis is safe and effective (even though Elysium’s manufacturing process included high level of acetamide, a known carcinogen); and (vii) Basis can prevent or treat serious diseases (including cancer, Alzheimer’s, heart disease, and diabetes), reverse cognitive decline, and increase lifespan (even though there is no study supporting such claims and some that show the opposite).

"Each time ChromaDex has unearthed and asserted additional examples of Elysium’s false and misleading advertising, Elysium has asserted counterclaims accusing ChromaDex of engaging in false advertising. Elysium filed the most recent iteration of if counterclaims after ChromaDex filed a motion for leave to file its Second Amended Complaint. Elysium accuses ChromaDex of engaging in false advertising for representations that are well supported, including that: (i) NR increases NAD+ levels in subjects (a claim that is supported by multiple peer-reviewed clinical studies); and (ii) ChromaDex’s NR is safe (ChromaDex, unlike Elysium, has received multiple New Dietary Ingredient Notification and Generally Recognized As Safe acknowledgements from FDA). In addition, Elysium claims ChromaDex is responsible for statements made by third parties over whom ChromaDex has no control regarding the benefits of NR even though ChromaDex (again, unlike Elysium) explicitly states in its advertising that Tru Niagen is not an FDA-approved drug and cannot be used to treat any disease. In addition, Elysium asserts a copyright infringement claim for the use of some graphics in advertising. ChromaDex denies any and all liability."

I will quote a single sentence from Elysium's summary as an example of the kind of egregious assertions it continues to make before the Court. Elysium in yesterday's filing says:

ChromaDex makes NR using solvents that leave behind contaminants, such as acetamide, a carcinogen.

Elysium fails to say that its claim against ChromaDex for the alleged presence of acetamide in Niagen was thrown out by Judge Carney in California on summary judgment because Elysium's own expert testimony was insufficient to establish the presence of unsafe levels of acetamide in Niagen. No rational juror could so conclude, based on the most generous reading of Elysium's evidence, said Judge Carney. And yet, Elysium still asserts this debunked allegation before Judge Liman.

Really. Here is what Judge Carney said:

"Summary judgment is warranted on this claim for another reason: lack of evidence to show unsafe levels of the carcinogen acetamide....The Court finds that the April 2017 test results are simply insufficient by themselves to support Elysium’s product safety counterclaim...Moreover, there is evidence that Elysium believed the Basis it sold was safe for consumption even after it received the April 2017 test results. (See Dkt. 240-2 [Ex. 69] at 305–06 [Dr. Wilhelm so testifying].) Indeed, Elysium sold all of the Niagen it had, even after discovering alleged heightened levels of acetamide. (Id.) ChromaDex has therefore shown that there is an absence of evidence to support Elysium’s claim..."

It is an ugly thing to see Elysium suggesting to this judge that Basis does not have unsafe levels of acetamide and Niagen does, when another judge has already adjudicated that Niagen does NOT, and Elysium's own evidence unequivocally shows that Basis DID.

That's why I'm not going through Elysium's entire statement. Hopefully the matter will settle so that no judge or jury ever has to.

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