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  • Writer's pictureShelly Albaum

Tumult In New York

So, a bunch of unexpected changes in the New York litigation today.

This morning, Judge McMahon responded to the Kaplan Hecker letter. Her Honor noted that she was not planning to recuse herself from the case, but said she would like hear any objections from ChromaDex before the end of the week.

If ChromaDex objected, it's not on the docket. Instead, the case was abruptly reassigned to Judge Lewis J. Limon.

Next on the docket, Baker Hostetler moved to withdraw* from the case today on the grounds that Elysium would now be represented by Kaplan Hecker Fink. That was to be expected. The reasons for the change are filed under seal, which was also to be expected.

Finally, and most surprising, we have a motion to withdraw by Cooley. The reason for the withdrawal is because ChromaDex intends to switch counsel to in New York from Cooley to Joedat Tuffaha and Prashanth Chennakesavan of LTL Attorneys.

We are actually familiar with LTL. They have been featured on Right of Assembly's Attorneys page since they joined the case. My recollection is that they joined the California case as co-counsel last year [UPDATE: They joined the Covance case in Delaware in February 2019] , and the New York case as co-counsel last month, but the California docket says they only joined last month. In any case have been ignoring them because they have not been filing anything.

However, according to Cooley's motion to withdraw and affidavit in support of withdrawal, LTL is up to speed, ChromaDex is on track to complete discovery this month, and the switch will result in no delays.

So what the hell is going on here?

Well, three things.

First, Elysium switched counsel as expected.

Second, Judge McMahon left the case presumably because someone thought she's too close to the Kaplan Hecker firm, but we don't actually know why. We are sorry about that.

Third, ChromaDex is switching to what is almost certainly less-expensive counsel than Cooley. Why would ChromaDex do that?

One option is that they might have been displeased with the quality of Cooley's work, but that seems unlikely, because Cooley has done excellent work.

Another possibility is that there is something else amiss in the relationship between Cooley and ChromaDex that we cannot see, but we have no reason to believe that.

A third possibility is that this is only about cost -- ChromaDex just wants less legal spend that Cooley is capable of delivering. Possible, but I still think unlikely, given ChromaDex's strategic commitment to protecting its legal rights.

A fourth possibility, much more likely I think, is that the New York litigation is going to turn out to be far less important than we originally thought, and so ChromaDex is cutting its costs there to focus its efforts on the patent infringement case in Delaware. I have elsewhere suggested that the damages in the two cases might be duplicative, so it would make sense for ChromaDex to not double its legal spend in pursuit of a single damage aware.

A fifth possibility is that, with the sudden re-commencement of the Delaware litigation, the New York AND California litigation are both poised to settle, and so this is all about freezing spend in anticipation of that. On the other hand, that would not easily explain why the case was transferred away from Judge McMahon.

If I had to bet, I would say that California and New York turn into mop-up operations -- likely settled -- and Delaware becomes the last remaining war front.

Or maybe it's something else. Time will tell. And you'll read about it here.


* UPDATE: Baker Hostetler's motion to withdraw includes a few more dates in New York -- document discovery to be complete by February 24, Fact depositions to be complete by April 11, and all discovery to be complete by June 20.

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