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  • Shelly Albaum

Substitution of Counsel in New York


Last week Baker Hostetler withdrew from the case in California and was replaced by Kaplan, Hecker & Fink, a New York law firm. Elysium's new lead counsel in California are KHF partners Roberta Kaplan and Gabrielle Tenzer.


So we expected it was just a matter of time before a similar move was made in New York, and so it was, although with a twist.


KHF yesterday sent Judge McMahon, who is presiding over the New York matter, this letter, authored by KHF name partner Sean Hecker:


Hecker Letter to Judge McMahon


Mr. Hecker's letter notes that KHF intends to represent Elysium in New York, adding,


"We expect that Elysium's counsel at Baker & Hostetler will soon file a motion to withdraw...We are aware of your longstanding relationship with Ms. Kaplan, and in an abundance of caution, we wanted to provide notice that I intend to serve as counsel for Elysium in the New York Action. Although other KHG attorneys may also be appearing in the New York Action on behalf of Elysium, Ms. Kaplan and Ms. Tenzer do not intend to do so. While we do not believe that KHF's appearance in the New York Action creates any conflict that would necessitate [recusal of a lawyer based on their prior relationship with a judge], we wanted to apprise Your Honor of KHF's appearance..."


What "relationship" are they referring to?


Roberta Kaplan describes Colleen McMahon as her "mentor" when they were both attorneys at the prestige firm Paul Weiss. Meanwhile, McMahon is described as Kaplan's "longtime friend, a mentor, and fellow Ohioan" in this article, which quotes McMahon as saying that Kaplan "should be ranked with the finest litigators of all time."


You can imagine ChromaDex moving to disqualify KHF in New York, given that KHF is a small firm, Kaplan is the first name partner, and Kaplan is active on closely related litigation between the same parties. We'll see.


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