Forward:
For the past two years we have been pointing out the deceit indulged in by Theos Medical Systems, Inc. with respect to their Chummie products and also disparaging the reputation and facts about Theos's competitors and their products. Now we have a judgement/decree from a U.S. Federal Judge which validates and confirms much of what we have written about with respect to Theos/Chummie and imposes strict controls on them. This further confirms our claims of excessive hype and false claims by Theos about their Chummie products, and their abuse of Amazon Reviews to hype their products and degrade their competition, and the general lack of good ethics on the part of Theos Medical Systems. We continue to wonder why any moral and ethical buyer might want to conduct any business with Theos or purchase their Chummie products.
We shall reproduce this published Order and Consent Decree in parts as it is quite long. For the interested reader, the entire Order can be found at
This Order and Consent Decree was filed on July 14, 2015.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MALEM MEDICAL, LTD. and ENURESIS ASSOCIATES, LLC,
Plaintiffs,
v.
THEOS MEDICAL SYSTEMS, INC. and SAKET BHATIA,
Defendants.
AND RELATED COUNTERCLAIMS
CASE NO.: 3:13-cv-05236-EMC
CONSENT DECREE AND ORDER
Continued from PART 1.
7. DEFENDANTS will refrain from making cash payments to individuals in exchange for reviews of their products. This agreement does not apply to the exchange of goods for reviews.
8. DEFENDANTS will submit, through Amazon Vendor Central, a letter from their attorneys to Amazon’s Buyers Review Team and Item Update Creation Team. The letter will ask for the removal of all nonverified reviews of Chummie products on all Amazon websites posted between June 1, 2014 and March 31, 2015 on the grounds that the validity of the reviews has come into question. This letter will be sent within 10 days of entry of this Consent Decree. If the subject reviews are not removed within 45 days of the date the letter is sent, DEFENDANTS will send, through Amazon Vendor Central, a second letter from their attorneys to Amazon’s Buyers Review Team and Item Update Creation Team. The second letter will reference this Agreement and the Court’s Consent Decree, and will identify the specific nonverified reviews to be removed.
9. DEFENDANTS will not disparage PLAINTIFFS or any of their products, services, officers, directors, or employees. For purposes of this agreement, disparage means to take any action which could reasonably be expected to adversely affect the reputation of PLAINTIFFS or any of their
products, services, officers, directors, or employees. This paragraph does not apply to legitimate
business concerns raised by DEFENDANTS or to allegations that PLAINTIFFS have violated this
Agreement or this Consent Decree.
10. DEFENDANTS will not communicate with any person or entity through the use of a false or assumed identity such that the communication could reasonably be mistaken as coming from PLAINTIFFS or any of their officers, directors, or employees.
PLAINTIFFS’ OBLIGATIONS
11. PLAINTIFFS will remove or modify specified factual statements from their website and other published materials (see items a-c below).
a. PLAINTIFFS will change the statement “largest marketplace/ distributor of bedwetting products” to “one of the largest.”
b. PLAINTIFFS will remove the statement “90% success rate within a few weeks.”
c. PLAINTIFFS will change the statement “each alarm cures, on average, 3 children per year” to “each alarm treats, on average, 3 children per year.”
12. PLAINTIFFS will not use the terms: “Chummie,” “One Drop Detection,” “Flexitape,”
“Comfy-Armband,” “Theos Medical Systems,” “Better technology for faster treatment,” “Active guard monitoring,” or “Enhanced protection plus care,” or the Chummie logo, Theos Medical Systems logo, or Chummie smiley face, as well as other trademarks and registered trademarks of DEFENDANTS now and in the future, except in bona fide comparative advertising.
13. PLAINTIFFS will remove all meta information containing the terms referenced in the above paragraph, as well as other brands sold by DEFENDANTS and not sold by PLAINTIFFS. This shall be accomplished within 30 days of entry of this Consent Decree.
14. PLAINTIFFS will refrain from making cash payments to individuals in exchange for reviews of their products. This agreement does not apply to the exchange of goods for reviews.
15. PLAINTIFFS will not disparage DEFENDANTS or any of their products, services, officers, directors, or employees. For purposes of this agreement, disparage means to take any action
which could reasonably be expected to adversely affect the reputation of DEFENDANTS or any of
their products, services, officers, directors, or employees. This paragraph does not apply to legitimate
business concerns raised by PLAINTIFFS or to allegations that DEFENDANTS have violated this
Agreement or this Consent Decree.
16. PLAINTIFFS will not communicate with any person or entity through the use of a false or assumed identity such that the communication could reasonably be mistaken as coming from
DEFENDANTS or any of their officers, directors, or employees.
FURTHER ORDERS
17. This Consent Decree is binding on PLAINTIFFS, DEFENDANTS, their officers, agents, servants, employees, affiliates, attorneys, successors, and assigns, as well as those persons in
active concert or participation with them and who receive actual notice of this Consent Decree.
18. This Consent Decree shall inure to the benefit of, and shall be enforceable by, PLAINTIFFS, DEFENDANTS, their affiliates, successors, and assigns as their respective interests may appear.
16. PLAINTIFFS will not communicate with any person or entity through the use of a false
or assumed identity such that the communication could reasonably be mistaken as coming from
DEFENDANTS or any of their officers, directors, or employees.
FURTHER ORDERS
or assumed identity such that the communication could reasonably be mistaken as coming from
DEFENDANTS or any of their officers, directors, or employees.
FURTHER ORDERS
17. This Consent Decree is binding on PLAINTIFFS, DEFENDANTS, their officers,
agents, servants, employees, affiliates, attorneys, successors, and assigns, as well as those persons in active concert or participation with them and who receive actual notice of this Consent Decree.
18. This Consent Decree shall inure to the benefit of, and shall be enforceable by, PLAINTIFFS, DEFENDANTS, their affiliates, successors, and assigns as their respective interests may appear.
APPROVED BY:
CLAPP, MORONEY, VUCINICH, BEEMAN and SCHELEY
DATED: July 9, 2015 /s/ P. Christian Scheley
By: P. CHRISTIAN SCHELEY, ESQ.
Attorneys for Defendants and Counter-Claimants, THEOS MEDICAL SYSTEMS, INC. and SAKET BHATIA
CLAPP, MORONEY, VUCINICH, BEEMAN and SCHELEY
DATED: July 9, 2015 /s/ P. Christian Scheley
By: P. CHRISTIAN SCHELEY, ESQ.
Attorneys for Defendants and Counter-Claimants, THEOS MEDICAL SYSTEMS, INC. and SAKET BHATIA
CRAIGIE, McCARTHY & CLOW
DATED: July 9, 2015 /s/ Peter W. Craigie
By: PETER W. CRAIGIE, ESQ.
Attorneys for Plaintiffs and Counter-Defendants, MALEM MEDICAL, LTD. and ENURESIS ASSOCIATES, LLC
ORDER
IT IS SO ORDERED: All hearing and trial dates are vacated. The Clerk of the Court is directed to close this case.
DATED: July 14, 2015
Honorable Edward M. Chen
United States District Court Judge
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CONSENT DECREE AND ORDER
CASE NO. 3:13-cv-05236-EMC
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