ohm: As usual, your observation is a keen one. The weakest link in my fanciful scenario is the FDA approval linked to the phase 3 results (and a timely approval based thereon), assuming a competently filed BLA by Amarex/NSF. The best evidence that the phase 3 results supported the approval would be an actual approval in the near future. In theory, however, Sidley/Hopson could try to fill that gap in the proximate cause chain through the testimony of an expert opining on FDA approval criteria and another expert opining on BLA prep and submission standards.

Keep in mind that an action filed tomorrow would likely not come to trial until 2023 or later. In the meantime, CYDY would only have to prevail on a motion to dismiss the complaint and a subsequent motion for summary judgment, both of which be decided with disputed evidence being resolved in favor of the CYDY for purposes of the motions.