A permanent injunction has been filed against Brookfield-based startup Brookfield Pharmaceuticals, LLC
after a federal judge found the company made a series of false statements when advertising one of its products.
Rockville, Maryland-based ExeGi Pharma, LLC
first filed the civil lawsuit against Brookfield Pharmaceuticals in U.S. District Court for the Eastern District of Wisconsin in February 2020.
The complaint in the case states Brookfield Pharmaceuticals, founded in 2017, had introduced “high potency probiotic” capsules in pharmacies across the country that were being sold as a generic version of ExeGi’s probiotic product Visbiome.
However, ExeGi argued that the HPP capsules are in no way generic equivalents to their Visbiome product, and the capsules do not contain several of the same key ingredients. ExeGi alleges the strains used in the two products are “genetically different.”
ExeGi filed the civil lawsuit against Brookfield Pharmaceuticals in an effort to “hold Brookfield liable for false advertising and unfair competition under the Lanham Act,” according to the complaint in the case.
The court found that the Brookfield Pharmaceuticals HPP product has a different composition than that of Visbiome, and Brookfield Pharmaceuticals attempted to sell HPP as a Visbiome generic equivalent, according to a news release from ExeGi.
In a 44-page opinion, Judge J.P. Stadtmueller
found that numerous statements made by Brookfield Pharmaceuticals about HPP were false, including claims that HPP contained "the same strains" and "the same probiotic bacteria" as Visbiome. These statements were found to have violated the Lanham Act, which governs false advertising and unfair competition in commerce.
A permanent injunction filed last month orders Brookfield Pharmaceuticals to send out a series of corrective letters to both consumers and distributors informing them HPP is not a generic equivalent of Visbiome and does not contain the same strains or probiotic bacteria as Visbiome. ExeGi is also seeking $5 million in compensatory damages. The company’s legal team will proceed to trial to determine damages.
Brookfield Pharmaceuticals has filed a motion to suspend the permanent injunction filed against the company.
“Brookfield (Pharmaceuticals) believes the court correctly dismissed several significant claims from the lawsuit and ruled their low-cost, high-quality, probiotic option can remain on the market in the same form for their many satisfied consumers," the said company in a statement. "While Brookfield (Pharmaceuticals) disagrees with portions of the decision that need to be rectified, it applauds the court for preventing ExeGi from attempting to use the courts to create a regulatory monopoly for its product. The appeal process is underway as to the errors we believe occurred that resulted in the partial summary judgment and permanent injunction. Even if the ruling were to stand, however, ExeGi’s attempt to frame it as a 'landmark victory' is both hyperbolic and premature where the court only granted partial summary judgment. ExeGi still has yet to prove Brookfield (Pharmaceuticals') actions resulted in any meaningful damages, which is hotly disputed and will be left to the jury to decide.”