The United States Court of Appeals for the Fourth Circuit issued a unanimous, published decision today affirming yet another victory secured by Schulman Bhattacharya for its clients Claudio De Simone and ExeGi Pharma, LLC against Alfasigma USA, Inc. and VSL Pharmaceuticals, Inc.
On July 30, 2020, Judge Theodore D. Chuang for the United States District Court of Maryland granted the Firm’s motion and held Alfasigma and VSL in civil contempt and sanctioned them for violating the Court’s permanent injunction. The permanent injunction prohibits Alfasigma and VSL from continuing to falsely advertise their competing probiotic product, VSL#3®, as the same as the De Simone Formulation, which was invented by Professor De Simone and is exclusively available from ExeGi under the trademark “Visbiome®.” As Judge Chuang concluded, Alfasigma and VSL had violated the permanent injunction in a number of ways, including by: (1) stating, in a letter sent to healthcare providers, that VSL#3® was “equivalent to” the De Simone Formulation, and that the clinical studies conducted on the De Simone Formulation could be relied on to show “the safety and efficacy” of VSL#3®; (2) making multiple statements on Facebook that VSL#3®’s formulation had “not changed”; (3) asserting on the VSL#3® Facebook page and YouTube channel that VSL#3® was “clinically proven”; and (4) describing Visbiome®, in a press release, as the “generic” version of VSL#3®. Judge Chuang sanctioned Alfasigma and VSL by ordering them to remove the remaining contemptuous statements (and any similar ones) and to pay ExeGi’s reasonable attorneys’ fees.
In the unanimous, published opinion issued today, the three-judge panel of the Fourth Circuit Court of Appeals affirmed Judge Chuang’s decision in its entirety. As the Fourth Circuit held: “Because the Healthcare Providers Letter, Facebook Commentary, YouTube Materials, and  Press Release were all contemptuous, we discern no error in the district court’s decision to find all of them sanctionable.” The Fourth Circuit also held that “De Simone and ExeGi demonstrated harm” from Alfasigma’s and VSL’s various violations of the permanent injunction, including in the form of consumer confusion. As the Fourth Circuit emphasized, Alfasigma and VSL had spread “misleading information”—and “the harm is apparent.”
This appellate win is the latest in a string of victories secured by Schulman Bhattacharya on behalf of ExeGi and Professor De Simone against Alfasigma and VSL. The Fourth Circuit Court of Appeals previously affirmed Schulman Bhattacharya’s trial win for Professor De Simone and ExeGi, in which we prevailed on every claim, including ExeGi’s false advertising claim against Alfasigma, and secured the permanent injunction prohibiting further false advertising of VSL#3®. In another appellate victory, in June 2021, the Maryland Court of Special Appeals sided with Schulman Bhattacharya in all respects in affirming a grant of summary judgment in favor of ExeGi Pharma, LLC and Claudio De Simone—dismissing $160 million in claims asserted by Alfasigma.