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Fluidigm, NanoString Reach Settlement on Lawsuit Alleging False Advertising, Other Charges

NEW YORK (GenomeWeb News) – Fluidigm and NanoString Technologies have settled lawsuits filed by Fluidigm that accused NanoString of false advertising, unfair competition, and unlawful trade practice, the companies announced after the close of the market on Tuesday.

As part of the settlement, NanoString is required to remove all references to a single-cell comparison study of Fluidigm's and NanoString's single-cell products, and to recall and destroy all materials related to and/or based on the study, Fluidigm said.

Financial terms of the settlement were not disclosed.

"We believe in fair competition and providing researchers with the most accurate information possible so they can make informed decisions about which tools will help them unlock the mysteries of single-cell biology," Fluidigm President and CEO Gajus Worthington said in a statement. "We are happy that NanoString has agreed to remove, recall, and destroy the materials in question and take additional corrective measures so that we can each return to properly promoting our respective products' attributes in the marketplace," he added.

In November 2012, the South San Francisco, Calif.-based firm sued NanoString in the federal district court for the Northern District of California alleging "false advertising, unfair competition, and unlawful trade practice in violation of the Lanham Act and corresponding sections of the California Business & Professional Code."

An advertising campaign and corresponding white paper for NanoString's nCounter Single Cell Gene Expression Assay was based on a rigged head-to-head comparison with Fluidigm's BioMark HD System, Fluidigm said at the time, and added that the study was "intentionally flawed in both its design and execution."

It also accused NanoString of intentionally misleading customers and demanded that the company "cease and retract its false and misleading advertising claims, and stop misrepresenting and exaggerating the relative performance of its system."

After suing NanoString in California, Fluidigm sued NanoString in Singapore, leveling similar charges.

In a separate statement on Tuesday, Seattle-based NanoString "denies the allegations in both lawsuits" in spite of the settlement reached, and said that the study Fluidigm objects to "was scientifically valid and presented in a transparent and fair manner."

The 2012 study tested NanoString's two-step nCounter Single Cell Gene Expression protocol against a one-step protocol for Single Cell Gene Expression on the Fluidigm BioMark system.

The one-step BioMark protocol was described in Nature Protocols in 2011, and subsequent to the study, Fluidigm introduced a two-step BioMark protocol "that Fluidigm believes provides improved sensitivity relative to its one-step BioMark protocol," NanoString said. With the introduction of the two-step protocol, "NanoString's earlier comparison study may not reflect current recommendation or usage," it said.

The firm added, "NanoString expects that there would be no sensitivity advantage of the nCounter system relative to the BioMark system when using similar two-step protocols on both systems."

"NanoString is committed to accurately describing and demonstrating the performance of its products," President and CEO Brad Gray said in the firm's statement. "We encourage all researchers to carefully study the alternative approaches to single cell gene expression, and if possible, to test the performance of multiple approaches before committing to a technology."