D-1-GN-14-002452
WELLBEING GENOMICS PTY LTD. ,
Plaintiff,
v.
PLLG, LLC, DR. RUTHIE HARPER,
DAVID URMAN AND QIVANA, LLC,
Defendants.
New South Wales, Australia. Its principal place of business is Shop 10, 10 Spring Street,
Sydney, New South Wales, Australia 2000.
3.
PLLG is a limited liability company organized under the laws of the State of
Texas. Its principal place of business is 3901 Medical Parkway, Suite 100, Austin, Texas
78756. PLLG has been served with process in this case and has answered. Therefore, PLLG
may now be served through its counsel of record.
4.
Harper is an individual resident of Travis County, Texas. Harper has been served
with process in this case and has answered. Therefore, Harper may now be served through her
counsel of record.
5.
involved in all aspects of the business of PLLG d/b/a SkinShift since May 2012 and has thereby
done business in the State of Texas. As a result, Urman was properly served with process
through the Texas Secretary of State. Moreover, Urman has now answered. Therefore, Urman
may now be served through his counsel of record.
6.
Qivana is a limited liability company organized under the laws of the State of
Delaware. Its principal place of business is 5255 N. Edgewood Drive, #125, Provo, Utah 84604.
Qivana may be served with process through its designated agent for service of process in Texas
National Registered Agents, Inc., 1999 Bryan Street, Suite 900, Dallas, Texas 75201-3136.
JURISDICTION AND VENUE
A. SUBJECT MATTER JURISDICTION
7.
This Court has subject matter jurisdiction pursuant to Article 5, 8 of the TEXAS
CONSTITUTION and 24.007 of the TEXAS GOVERNMENT CODE, because the amount in
controversy exceeds the minimum jurisdictional limit of this Court.
B. PERSONAL JURISDICTION
8.
This Court has personal jurisdiction over Harper because Harper is an individual
This Court has personal jurisdiction over PLLG because PLLG is located in and
This Court has personal jurisdiction over Urman pursuant to 17.041 et seq. of
the TEXAS CIVIL PRACTICE & REMEDIES CODE, because Urman has done business in Texas, and
because Urman has committed one or more torts in Texas, as follows:
Urman has been actively involved in the business of PLLG d/b/a as SkinShift
since at least May 2012 (Urmans LinkedIn profile states that he has been
involved since then in all aspects of the company with emphasis on business
development, regulatory and IP.)
Moreover, Urman took over day-to-day responsibility for negotiating for PLLG
and Harper a distribution deal with marketing firms, ultimately negotiating such a
deal with Qivana and, in connection with such efforts, disclosed confidential and
proprietary information and trade secrets of Wellbeing Genomics all while
communicating regularly with PLLG and Harper in Texas by email and by phone.
On more than one occasion, Urman met with PLLG and Harper in Texas to
discuss such activities.
On September 21, 2012, David Urman met with Stefan Mazy in PLLGs
SkinShift offices at 3901 Medical Parkway, Austin, Texas, and they discussed
new packaging for the SkinShift lists, cost reductions, changes to the SkinShift
report and planned promotion efforts of SkinShift in Texas and throughout the
United States. Later, at dinner in Austin, Urman and Mazy discussed marketing
and distribution of SkinShift reports.
Throughout his dealings with Wellbeing Genomics at least until April 17, 2014
Urman falsely represented to Wellbeing Genomics that he, PLLG and Harper
recognized Wellbeing Genomics intellectual property in order to induce
Wellbeing Genomics to send its confidential and proprietary information and
trade secrets to him, to PLLG and Harper in Texas.
Urman has benefitted and will benefit financially from PLLGs and Harpers
distribution agreement with Qivana, including but not limited to the distribution
of genetic test reports and PLLG/Harpers skin care products in Texas.
11.
This Court has personal jurisdiction over Qivana pursuant to 17.041 et seq. of
the TEXAS CIVIL PRACTICE & REMEDIES CODE, because Qivana has done business in Texas, and
because Qivana has committed one or more torts in Texas, as follows:
Qivana is a multi-level marketing firm that sells health, nutrition, beauty and antiaging products. Qivana markets these products through Independent Business
Owners (IBOs) in Texas.
Qivana does business throughout the United States, including Texas, on a regular
basis. Qivana has and has had for some time ongoing business relationships with
IBOs who were/are located in Texas.
Harper told Wellbeing Genomics that she had entered into an agreement with
Qivana. Believing that Harpers agreement with Qivana breached Harpers
(PLLGs) agreement with it, Wellbeing Genomics sent a letter to Qivana. In
particular, Wellbeing Genomics notified Qivana that Harper had caused PLLG to
breach its Distribution Agreement with Wellbeing Genomics, that Harper was
claiming to own DNA technology that belonged to Wellbeing Genomics and that
Wellbeing Genomics was concerned that Harper/PLLG and Qivana were
In order to enter into a definitive agreement, Qivana and Harper (directly and
through Urman) exchanged many email and had phone calls and meetings.
Harper sent and received those email in Texas and Harper participated in phone
calls from Texas.
For example, Qivana sent email to Harper in Texas regarding arranging for a
laboratory to run skin DNA tests.
Qivana worked with Harper to prepare for Qivanas launch of Harpers SkinShift
DNA-based skin care product line in September 2014. Some of these activities
took place in Texas. For example, on August 13, 2014, Qivana conducted a
Dallas Qivana Opportunity Event for SkinShift in Rockwall, Texas. Devin
Glazier, a Founder and CFO of Qivana, and Jerry Campisi, an IBO, made a prelaunch presentation regarding Qivanas impending launch of its campaign to
market and sell Harpers SkinShift DNA-based product line.
Qivana has made the payments it is obligated to make to PLLG under the
Exclusive Distribution Agreement to PLLG in Texas.
Qivana d/b/a Qivana Global LLC entered into a General Service Agreement with
Sorenson Genomics, L.L.C. (Sorenson) Pursuant to that agreement, Qivana
retained Sorenson to perform DNA testing services for Qivana so that Qivana
could perform its Exclusive Distribution Agreement with PLLG. Qivana
provided confidential information and trade secrets of Wellbeing Genomics,
which it obtained from Harper and PLLG, to Sorenson so that Sorenson could
develop and perform this test. Under the General Service Agreement, Sorenson
agreed to treat this information confidentially.
Qivana has sold PLLGs SkinShift DNA-based skin care products using and
benefiting from a DNA test based on Wellbeing Genomics confidential
information and trade secrets. Qivana has done so in Texas.
C. VENUE
12.
Venue is proper in Travis County, Texas, pursuant to 15.002(a)(1), (2) and (3)
of $1,000,000 or more but, based on discovery provided by Defendants to date, not more than
$10,000,000.
FACTUAL BACKGROUND
14.
Wellbeing Genomics, which was formed in 2009, has identified genetic factors
that contribute significantly to age-related changes in the skin and actionable pathways for
each of these genetic factors to help people preserve a more youthful looking skin.
15.
test to identify the skins propensity to five, key aging pathways: collagen breakdown; photo
aging; wrinkling; oxidation; and the skins ability to tolerate environmental pollutants. This test
is called the SkinDNA Genetic Test and it is based on 15 informative SNPs for establishing a
genetic profile predictive for skin aging. The number of the most informative SNPs is often
stated to be 16, because the SNP associated with Glutathione peroxidase 1 (GPX1) is scored for
both the collagen breakdown pathway and tolerance to environmental pollutants pathway.
16.
of the customers inner cheek. The test is performed with Wellbeing Genomics proprietary and
confidential DNA DermXT micro-chip technology and proprietary and confidential statistical
algorithms and analytics software to analyze resultant multiple SNP genetic variations.
17.
The SkinDNA Genetic Test creates a report of the customers skin profile
based on statistical outcomes which are broadly classified in five categories corresponding to the
five aging pathways. The statistical results generated by Wellbeing Genomics confidential and
proprietary algorithms and analytics software are used to recommend skin care products
containing or omitting certain ingredients and/or concentrations thereof, or to avoid certain skin
care products, all based on the individuals genetic profile. All recommendations are provided as
a score that is based on a graduated scale of .001 to 1.
18.
genes and corresponding SNPs that collectively form the basis for the SkinDNA Genetic Test,
and Wellbeing Genomics DermXT micro-chip technology, statistical algorithms and
technology for generating test results and recommendations, data cards, which outline the
process of SNP identification, links to dermal responses and actionable pathways to counteract
SNP outcomes, DG-Theorem and Mazy Scale and customizable customer reports for
reporting test results and training manuals and related information regarding skin care
recommendations (collectively, SkinDNA Genetic Test Technology) are confidential and
proprietary information and trade secrets of Wellbeing Genomics because Wellbeing Genomics
has taken reasonable precautions to preserve the confidentiality of its SkinDNA Genetic Test
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 9
NAI-266492314v9
Technology and related tools and information and because Wellbeing Genomics SkinDNA
Genetic Test Technology and related tools and information provide Wellbeing Genomics
advantages over those who do not know or use them.
19.
To market its SkinDNA Genetic Test reports, Wellbeing Genomics entered into
exclusive distribution agreements with one company in various countries or areas, including:
Australia; Canada; Europe; Hong Kong; New Zealand and Taiwan.
20.
from Christine E. Sharp, a Master Aesthetician for Nutritional Medicine Association at the Laser
& Skin Care Clinic at 3901 Medical Parkway, Suite 100, Austin, Texas Harpers business
address. Sharp wrote:
We are a medical and skin care practice interested in offering
DNA/generic [sic] testing to our patients! . . .
Please send some information
On August 7, 2010, Stefan Mazy, Director of Wellbeing Genomics d/b/a Skin DNA International
Business/Partnership Relationships, responded stating in part as follows:
SkinDNA is a product for skin care Professionals to administer
to their clients. It is a unique tool that can be used to personalize
or tailor make a skin care regimen based on the clients DNA
blueprint to provide the maximum support.
Harper followed up purchasing 40 test kits. Mazy provided a sample report to Harper which
illustrated five categories of skin health in the following order: collagen formation, sun
protection, antioxidant protection, glycation end products and inflammation control. The report
further described the subjects genetic predisposition to certain skin conditions and/or disorders
as referenced in biological effects and visible signs relating to each of the five categories. The
report illustrated the test subjects individual score on a scale of 0.00 to 1.00 with 1.00 being the
optimal outcome. The test subjects score on the report was generated using Wellbeings
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 10
NAI-266492314v9
algorithms. Furthermore, the report provided information regarding the genes tested, the ideal
genotype, and the test subjects outcome and cumulative rating. Finally, the report demonstrated
the results of Wellbeing Genomics recommendation algorithm which generates a series of
product and/or ingredient recommendations pertinent to the actionable pathways of the five
report categories. Harper responded:
Stefan, we are excited to be moving forward with you . . . .
We will be working with you to customize a report. My marketing
person Kathleen will interface with you on this . . .
We had discussed somehow replicating content or pages from your
website that we can use with our website under our name and
logo? Any thoughts on how to do this?
21.
about the sale by Harper of Wellbeing Genomics SkinDNA Genetic Test results on the
Internet and physically in Texas under Harpers SkinShift trade name. Harper was so
impressed with Wellbeing Genomics innovative test and Wellbeing Genomics presentation of
its test capabilities on its website that Harper asked to put Wellbeing Genomics website content
on her website under her SkinShift trade name because Harper was anxious to begin marketing
Wellbeing Genomics SkinDNA Genetic Test results not only to profit from offering the test
results but also from thereby increasing sales of her skin care products. On September 2, 2010,
Harper wrote to Mazy, at Wellbeing Genomics, as follows: We are excited to be partnering
with you and feel the ability to quickly access what you all have spent considerable time and
money on is a real asset to us getting to market quickly.
22.
Harper which engaged in the business of selling skin care products, and Wellbeing Genomics
entered into a Stockist Agreement. Pursuant to the Stockist Agreement, Harper LP agreed to
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 11
NAI-266492314v9
take commercially reasonable steps to arrange wide publicity for Wellbeing Genomics
products/services in the relevant geographical area. Wellbeing Genomics, in turn, agreed to test
properly submitted specimens and prepare test results for Harper LP. Wellbeing Genomics and
Harper LP agreed mutually to treat as confidential and to safeguard all information, reports and
records pertaining to their relationship that are marked as confidential or proprietary or that are,
under the circumstances, reasonable to assume should be confidentially treated.
23.
SkinDNA Genetic Test reports, Wellbeing Genomics assisted Harper LP to prepare its test kit
packaging and insert materials. Moreover, Wellbeing Genomics provided training materials to
Harper LP.
24.
which rebranded Wellbeing Genomics SkinDNA Genetic Test results under Harper LPs
SkinShift brand. Harper LP did not create packaging, insert materials or test reports; rather,
Harper LP took the form of materials and reports Wellbeing Genomics provided and changed the
trade name/mark SkinDNA to SkinShift.
25.
Since Harper was not involved in developing Wellbeing Genomics Skin DNA
Genetic Test and the related marketing materials, Harper had many questions not only about
the information to be provided to customers, but also clinicians and doctors who might refer
customers to Harper LP. To answer some of Harpers questions, in April 2011 Wellbeing
Genomics provided to Harper LP four data cards which provided information about specific
genes Wellbeing Genomics used in its SkinDNA Genetic Test and that outlined the process of
SNP identification, links to dermal responses and actionable pathways to counteract SNP
outcomes. In his cover email message, Stefan Mazy of Wellbeing Genomics wrote: These are
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 12
NAI-266492314v9
highly confidential and we would appreciate it if you can keep these to yourself as weve done
our best to protect them from our competitors.
26.
separate business to sell Wellbeing Genomics SkinDNATM Test results and her own skin care
products. Harper also requested that her territory for selling Wellbeing Genomics SkinDNATM
Genetic Test be expanded to include all of the United States. Harper formed PLLG to do this.
Effective May 9, 2012, PLLG and Wellbeing Genomics entered into an Exclusive Distributor
Agreement.
27.
and PLLG, Wellbeing Genomics appointed PLLG its exclusive distributor in the United States
and granted to PLLG the exclusive and non-assignable (other than in connection with a change
of control of Distributor) right to sell SkinDNA Genetic Test reports. PLLG agreed that it
could not transfer or even attempt to transfer any of its rights or obligations under its Exclusive
Distributor Agreement without the prior written consent of Wellbeing Genomics except only in
the case of a change of control of PLLG.
28.
Confidential Information and to safeguard the confidentiality of all information, reports and
records pertaining to the relationship between the parties that was marked as confidential or was
reasonable to assume should be treated confidentially, including but not limited to Wellbeing
Genomics SkinDNA Genetic Test Technology.
29.
2013 and would be continually renewed yearly unless terminated as provided by the agreement.
30.
Mazy at Wellbeing Genomics: with the info provided on the report (gene location), how do you
all protect your IP . . . important to know a[s] we explode big! Mazy responded:
Basically the gene location on the report is the small piece of the
puzzle that location can contain up to 10 other genes with each
gene there would be anywhere between 500 and 1000 SNPs, its
knowing the right SNP to test is where the IP lies. The IP also lies
in the combination of SNPs and the links we have associated with
the aging traits something no other lab can associate that link.
The gene names are based on our own category labels and are
named after the gene trait it displays so for example instead of
name the gene TNF-a (something that most customers will not
understand) we changed it to Inflammatory Response Something
customers can relate to and talk about amongst their friends.
To this day no one has been able to imitate the test, were even
talking about big firms such as P&G who have been trying to find
the exact SNPs the results, though detailed do not provide the
things the competitors need.
Harper, referring to the possibility of having the Wellbeing Genomics SkinDNA Genetic Test
performed in the United States, which she favored, replied: good to know . . . if I send on these
labs for you to talk with, make sure you have good solid NDAs with them In short, Harper
recognized the fact that Wellbeing Genomics SkinDNATM Test Technology and documents
associated with it were Confidential Information and trade secrets of Wellbeing Genomics.
31.
One aspect of her relationship with Wellbeing Genomics about which Harper
claimed she was not completely satisfied was having to mail specimens to be tested to Wellbeing
Genomics laboratory in Australia. Consequently, on several occasions, Harper sought to
introduce Wellbeing Genomics to laboratories in the United States to which Wellbeing
Genomics might sub-contract its tests or to which Wellbeing Genomics might license its
SkinDNATM Genetic Test Technology.
32.
One U.S. laboratory that Harper introduced to Wellbeing Genomics was Bioserve.
On May 22, 2012, Rob Fannon of Bioserve wrote to Stefan Mazy to express his interest in
evaluating a partnership with Wellbeing Genomics. Fannon asked for some specific
information:
Any chance youd be able to provide rs numbers for the 15 SNPs
of interest?
If you dont have these numbers, would you be able to provide us
sequence information surrounding the SNPs? We need
approximately 50 bp on either side of the SNP to design our
assays. The reason Im asking for this information is that we
deploy the Sequenom iPlex technology to perform our genotyping
work. Well have to do some in silica designing of the assays to
determine how many SNPs we can bundle into on multiplex assay.
For example, the costs would be much more attractive if we could
get all 15 SNPs into one 15-plex assay. The Time and cost would
be affected, for example, if the best we could achieve is 5-plex
assays.
Later that same day, Fannon wrote back to Mazy and stated:
In hindsight, I recognize that you may not want to share the RS
numbers of the particular SNPs you are interested in for
proprietary-related reasons. I meant to include that wed be happy
to execute an NDA to help facilitate the process, as were most
interested in evaluating this opportunity with you.
As Fannon expected, Mazy responded that Wellbeing Genomics could not release the RS
numbers:
At this stage due to proprietary reasons, we wouldnt be able to
release the RS numbers.
In short, Fannons e-mail exchange with Mazy reflects the fact that the type of information that
comprised Wellbeing Genomics SkinDNATM Test Technology was/is considered confidential
and proprietary in the industry.
33.
SkinDNATM Genetic Test in order, she claimed, to be able to convince her customers that the
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 15
NAI-266492314v9
test was clinically proven. Wellbeing Genomics tried to accommodate Harpers requests to
enable her to grow her testing business and her skin care product business; but Wellbeing
Genomics also made it clear to Harper that there were limits on how much of its SkinDNATM
Genetic Test Technology it would share with her and, more importantly, allow her to share with
others. On June 24, 2012, Harper wrote to Mazy as follows:
Stefan, can you provide me with the scientific studies, scientific
documentation that the SNPs we are looking at affect skin
health/aging and are of clinical significance. I am being asked for
these as I work with people here. Thanks so much, Ruthie.
Mazy responded:
This information is highly sensitive and what we allow is these 3
data cards (Attached) to be freely handed out to anyone who asks.
By doing this we dont reveal everything but still provides enough
validity behind the test for those who want the information.
When Mazy sent the data cards, he wrote:
Please find attached the data cards for all of the genes. Again this
is strictly confidential for your eyes only. If anyone else would
like to review these please let me know so that I can get approval.
Harper asked for a little more information:
Stefan is there info for the other categories that can be shared (so
I have 5 categories)? thanks
Mazy responded:
With regards to the data cards what type of people are wanting to
see them? We generally give out the 3 to people in the medical
profession as they want to see the data behind it. If you wanted to
give them one from each category the other 2 you could include
would be LEPR Wrinkling and ERCC2 Sun Damage and
Pigmentation.
34.
On July 10, 2012, Harper sent an email message to Mazy to introduce her new
business development partner, Urman. Urman was the co-owner and head of business
development at Spray Labs LLC (Spray Labs) in Portland, Oregon. Spray Labs had developed
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 16
NAI-266492314v9
Intra-oral sprays D3, B12 and Melatonin and a variety of vitamin supplements. Wellbeing
Genomics accepted Urmans involvement but did so on the condition that Urman enter into a
Non-Disclosure Agreement with Wellbeing Genomics.
35.
Wellbeing Genomics and Urman each agreed to treat as confidential and proprietary information
of the other party any Confidential Information (as defined in the Non-Disclosure Agreement)
that the other party notified them was confidential and proprietary by various means: orally, by
e-mail or written correspondence or via other means of communication as might be appropriate.
Wellbeing Genomics and Urman further agreed that all Confidential Information they disclosed
to each other would remain the property of the disclosing party. Wellbeing Genomics and
Urman further agreed that if Confidential Information was disclosed in violation of the NonDisclosure Agreement, the disclosing party would suffer irreparable injury and be entitled to
injunctive relief.
36.
Like Harper, Urman had questions. Like Harper (see above), Urman asked how
In a nutshell its been 4 years and still no one has been able to
duplicate the product. The closest is Dermagenetics, in my
previous email I outlined the differences. Our IP was one of our
biggest concerns at first. By patenting the product meant that
every SNP location would be revealed to competitors and would
simply be a matter of months before something similar came
along.
We chose to label genes with our own references so that it allows
customers to understand it more eg, rather labeling the gene Matrix
Metalloproteinase-1, we called it Collagen Stimulation. We knew
that by providing our own reference and not disclosing the details
to the customer may backfire, so we prepared a set of data cards
that outline each gene; its processes; what each SNP has been
linked to and; all the scientific data supporting it. This is
essentially what makes up or IP. Whenever requested we freely
hand out only 2 or 3 data cards. This provides skeptics with
enough information whilst at the same time not giving them much
to mimic.
The team itself makes up part of the IP too. The collaboration of
geneticists, researchers, nutritionists, and Aesthetic industry
knowledge and experience has made our organization quite a
niche. We know that even Derma genetics dont have the
Aesthetic Industry knowledge component.
37.
The data cards about which Mazy wrote in the just quoted email message outline
the process of SNP identification, links to dermal responses and actionable pathways to
counteract SNP outcomes. As stated above, Wellbeing Genomics uses its Skin DNA Genetic
Test Technology, including its proprietary algorithms and analytics software, to recommend skin
care products containing or omitting certain ingredients and/or concentrations thereof, or to
avoid certain skin care products, all based on the individuals genetic makeup. This information
is provided to PLLGs customers in a report designed by Wellbeing Genomics.
38.
Like Harper (see above), Urman wanted to find a laboratory in the United States
Ferndale Labs, Inc. (Ferndale) operates a laboratory in Michigan at which it performs contract
work. Ferndale was another U.S. laboratory that PLLG proposed to Wellbeing Genomics be
allowed to run tests using Wellbeing Genomics SkinDNATM Genetic Test Technology. Mazy
responded to Urmans inquiry about Ferndale as follows:
Hi Ruthie and David,
Have Ferndale seen the data cards? Ive just gone through them
again and pretty much they contain a lot of the validation points
you guys were after. For example in the Glycation category, the
studies were comparing a SNP test and weighing it against BMI
and an Oral Glucose Tolerance Test. Is this the type of validation
you were wanting?
If Ferndale are happy to sign an NDA please show them a handful
of the data cards for them to go through as that should help shed
some light on the validating.
Just to re-confirm David, from my knowledge once all the above
information was finalized we then did our own internal sample
validations to show that the frequency of each SNP were correct.
(Emphasis added.) Urman replied:
Thanks Stefan. As mentioned in the email I just sent, we are 100%
focused on showing the efficacy of the DNA test and that is where
the Ferndale deal currently hinges. We have stringent NDAs in
place to protect our mutual IP. Therefore, the sooner we get this
data together, the sooner Ruthie and I can draft something for your
review that will pass due diligence muster. The White Paper you
drafted provided excellent marketing points, as well as excellent
direction, but it needs a bit of a scientific gloss to empower a
company such as Ferndale to invest $100,000 on a clinical study
and several hundred thousand dollars to make a positive decision
on going forward with the system.
(Emphasis added.)
41.
On November 12, 2012, Urman sent another email message to Mazy to emphasize
the importance of using a U.S. laboratory to run Wellbeing Genomics SkinDNATM Genetic Test
to avoid mailing specimens to Australia:
I suggest we talk today. Let me know when it is good for you.
But, let me confirm that, with respect to Ferndale and other similar
prospects, our focus is on selling the test. We have discussed with
Ferndale the fact that for the benefit of the tests brand, the product
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 23
NAI-266492314v9
During the second half of 2012 and during 2013, Urman and PLLG notified
Wellbeing Genomics that they had approached or been approached by many potential business
partners. As set forth above, generally speaking, Urman and PLLG acknowledged two important
points regarding their relationship with Wellbeing Genomics. First, they acknowledged that the
SkinDNA Genetic Test of Wellbeing Genomics that PLLG was using was Confidential
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 24
NAI-266492314v9
Information and a trade secret of Wellbeing Genomics. Second, they acknowledged that PLLG
was only authorized to offer Wellbeing Genomics SkinDNA Genetics Test in the United
States. For example, on November 29, 2012, Urman sent to Mazy a Non-Disclosure Agreement
for a potential business partner of PLLG in the United Kingdom. With respect to the
SkinDNA Genetic Test, Mazy asked Urman to tell the firm in the U.K. to speak to Mazy and
Urman did so. Urman told the U.K. firm that Mazy would work with them on the SkinDNA
Genetic Test.
43.
On or about April 24, 2013, Harper filed with the United States Patent and
Trademark Office a provisional patent application for an alleged invention titled Methods of
Skin Analysis and Uses Thereof. The patent application contained trade secrets of Wellbeing
Genomics. Indeed, Appendix A plagiarized a document Wellbeing Genomics had provided to
Harper copying much of the text but deleting Wellbeing Genomics citations.
44.
In terms of studies etc the company can only release 25% i.e. 2-3
genes purely because it makes up our competitive advantage
foundation of the company which I hope you can appreciate.
Urman responded that he completely understood the competitive landscape:
I completely understand the competitive landscape. The only thing
that concerns me is that we have our necks out a little with the
FDA. One of the things that concerns we about the great publicity
Ruthie has gotten is that SkinShift could be on the FDA radar. I
feel that they are so arbitrary that there is never complete safety in
dealing with them.
Having said that, being able to see the data on 2-3 genes to start
would be helpful. If FDA ever did consider this within its
jurisdiction, we would presumably need to produce the data.
In short, Urman (PLLG) recognized that the SkinDNATM Genetic Test provided a critical
business advantage to Wellbeing Genomics over its competitors.
45.
On or about January 20, 2014, Urman with Harpers knowledge and approval
sent to Qivana Harpers provisional patent application and a white paper, both of which
contained trade secrets of Wellbeing Genomics. Urman, Harper and PLLG did not have
Wellbeing Genomics permission to disclose Wellbeing Genomics trade secrets to Qivana.
46.
report replacement machine to allow Harper to replace Wellbeing Genomics report. Urman
reminded Harper that the plan was to launch Qivanas distribution effort with Wellbeing
Genomics performing the DNA tests and later replace Wellbeing Genomics. Harper suggested
that they try to get the name of the person doing Wellbeing Genomics test because that person
had already invented the wheel. PLLG later sought to license Wellbeing Genomics report.
47.
In March 2014, Urman advised Mazy that PLLG was going to sign a term sheet
with Qivana to distribute Wellbeing Genomics SkinDNATM Genetic Test results and PLLGs
skin care products. On March 9, 2014, Urman wrote to Mazy as follows:
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 26
NAI-266492314v9
Memorandum of Understanding regarding their intention to have Qivana sell Harpers SkinShift
DNA test-based skin care line. Harper agreed to lend her name, patented DNA-based skin care
concept, SkinShift brand and time to Qivana. In fact, Harpers patented DNA-based skin care
concept was based on Wellbeing Genomics SkinDNA Genetic Test Technology and related
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 27
NAI-266492314v9
tools and information. Under the Memorandum of Understanding, Harper agreed to use
Wellbeing Genomics confidential information and trade secrets for the purpose of jointly
formulating and distributing a DNA test-based skin care product line with Qivana. Moreover,
Harper stated her intention to grant to Qivana the right to use Wellbeing Genomics confidential
information and trade secrets globally. In exchange, Qivana agreed to make certain payments to
Harper including a licensing fee and a royalty payment. Harper and Qivana agreed to launch
their joint venture at Qivanas international convention of its IBOs in Florida in September 2014.
49.
To implement their deal, Harper and Qivana wanted to use a laboratory in the
United States to run a DNA test. At least Harper knew that they needed to continue to use
Wellbeing Genomics SkinDNA test to be able to launch in September 2014. In order to
persuade Wellbeing Genomics to license its technology to a United States lab, Urman continued
to press the issue of having a laboratory in the United States purportedly for regulatory reasons.
In response, Mazy pointed out that because Wellbeing Genomics had developed the test and was
the only laboratory performing the test, PLLGs SkinShift branded DNA test was treated as a
laboratory developed test (LDT) and therefore exempt from any FDA regulations. While
Wellbeing Genomics was open to the idea of working with a U.S. lab for tests run in the United
States, Mazy also reminded Urman that Wellbeing Genomics expected to be compensated for the
use by any U.S. laboratory of its technology:
The lab may charge $70 to run the test but there is no profit margin
for us to make this happen. If you would like us to source a
second lab we are happy to do so, but please be aware that as
this is our technology we will charge additional fees for this to
happen. Approximately you are looking at $110 per sample
instead of $89 provided you are ok with this we are happy to
move our technology to a second premises closer to you.
(Emphasis in original.) On March 31, 2014, Urman responded:
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 28
NAI-266492314v9
In fact, by April 17, 2014, Qivana and Sorenson had prepared and Sorenson had
Urman about PLLGs prospective agreement with Qivana. Grant confirmed his oral comments
to Urman by forwarding to Urman a series of e-mails between Wellbeing Genomics and Harper
in 2010 in which Harper requested that Wellbeing Genomics test DNA samples for her
concluding with Harpers above-quoted e-mail message, dated September 5, 2012 inquiring
about how Wellbeing Genomics protects its intellectual property. Also, Grant requested that
Urman provide to Wellbeing Genomics a copy of the provisional patent application to which
Urman had referred during their telephone conversation and stated: Clearly we would have
some pretty serious concerns if anything was attempted to be patented based on what weve
provided to you, and would need to carefully consider our next steps in consideration thereof.
Finally, Grant proposed that they speak again the following day to discuss moving forward under
a new agreement.
53.
On April 17, 2014, when Urman responded to Grant, Urman changed PLLGs
(Emphasis in original.) Harper and Urman discussed Grants email and agreed that they would
slow play their discussions with Wellbeing Genomics while they negotiated with Qivana and
Sorenson.
55.
Just days later, Urman advised Qivana that PLLGs Exclusive Distributor
Agreement with Wellbeing Genomics was about to end and Urman sent a list of SNPs to Qivana
for Qivana to forward to Sorenson so that Sorenson could make a proposal to establish and
conduct a DNA test for Qivana and PLLG. On May 2, 2014, Lars Mouritsen of Sorenson wrote
to Harper that the choice of the specific SNPs to be used for the test was entirely up to her. Later
that day, Mouritson sent a proposed service agreement with proposed pricing to Qivana.
56.
States and to file a PCT international application with the World Intellectual Property
Organization, she had her attorney coordinate her patent prosecution strategy with Qivana.
57.
On or about April 24, 2014, Harper filed her follow-on patent application and her
On or about May 2, 2014, Grant spoke to Harper. When Grant reiterated (see
above) Wellbeing Genomics concern about Harpers patent application, Harper told Grant
falsely that her patent application related only to her cosmetics line.
59.
Wellbeing Genomics needed to have a full understanding of PLLGs relationship with Qivana
and to work around jurisdictional issues in countries in which PLLG wanted to do business but
Wellbeing Genomics had relationships with other white label partners. Grant proposed a three
way negotiation among PLLG, Qivana and Wellbeing Genomics. Harper did not take him up on
it.
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 33
NAI-266492314v9
60.
On May 8, 2014, Mazy advised Harper that the existing Exclusive Distributor
Agreement between Wellbeing Genomics and PLLG would end on May 12, 2014 and forwarded
to Harper a proposed new distribution agreement. Harper asked Urman for his thoughts on how
to handle Wellbeing Genomics and its proposal. Urman responded that they needed to extend
out Wellbeing Genomics until the end of July to avoid a gap between the termination of
Wellbeing Genomics provision of test results and the commencement of Sorensons provision
of test results. Therefore, Harper and Urman told Wellbeing Genomics they were recommending
Wellbeing Genomics to Qivana in order to induce Wellbeing Genomics to continue to run tests
for PLLG.
61.
In June 2014, Grant then sent a letter to Qivana. In that letter, Grant put Qivana
PLLG could not assign its rights under its agreement with Wellbeing
Genomics to others or give to others the Wellbeing Genomics information
it had received.
Any claim by Harper that she invented the test she had been using was
false.
Grant requested that Qivana contact Wellbeing Genomics by 5:00 p.m. on June 12, 2014, to
discuss these matters.
62.
On June 13, 2014, Harper advised Grant that PLLGs attorney wanted to wait to
see how the Qivana agreement unfolded before PLLG provided any response to Wellbeing
Genomics proposed new Distribution Agreement. Grant requested from Harper a conference
call with Harper and Qivana to discuss this.
63.
example, on June 16, 2014, Justin Banner of Qivana stated in an email to Urman that Wellbeing
Genomics claimed it developed Harpers test algorithm and had white labeled the test for her and
others. Moreover, Mr. Banner wrote to Harper and Urman that they needed to discuss how to
avoid a lawsuit.
64.
But Qivana did not respond to Grants letter. No one from Qivana called or wrote
to Grant or anyone else at Wellbeing Genomics to discuss Grants letter. No one from Qivana
responded to Grants assertions. No one from Qivana raised any questions regarding Grants
assertions. No one from Qivana denied Grants assertions.
65.
Instead, Qivana sent Grants letter to Harper and Urman. Qivana still did not
respond to Grants letter. Rather Qivana had or let PLLG do so. PLLGs attorney sent a letter,
dated June 18, 2014, to Wellbeing Genomics asserting that PLLG did not intend to use
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 35
NAI-266492314v9
Wellbeing Genomics SkinDNA Genetic Test with Qivana, that Wellbeing Genomics had
violated the Exclusive Distributor Agreement between it and PLLG and that Wellbeing
Genomics letter to PLLG constituted tortious interference with PLLGs relationship with
Qivana.
66.
with Qivana and to provide to Qivana technical information, including trade secrets of Wellbeing
Genomics, that would be needed by Sorenson to set up a DNA test.
67.
Effective July 1, 2014, Qivana d/b/a Qivana Global LLC entered into a General
Service Agreement with Sorenson. Sorenson agreed to provide genetic testing services to
Qivana. To enable Sorenson to provide those services, Qivana agreed to provide to Sorenson all
proprietary rights claimed in Harpers patent application, which included trade secrets of
Wellbeing Genomics.
68.
could be worked out, Wellbeing Genomics had continued to run and report tests for PLLG; but
once Qivana entered into the General Services Agreement with Sorenson, Harper intended to
drop Wellbeing Genomics as soon as Sorenson was ready to run the test.
69.
Qivanas offices in Utah putting Qivana on notice of the Courts Order Granting Plaintiffs
Application For Temporary Injunction and Wellbeing Genomics position that Qivana was
acting in convert or participation with the Defendants. Qivana did not respond.
70.
Effective September 16, 2014, PLLG and Qivana entered into an Exclusive
Distribution Agreement. PLLG granted to Qivana a license to use its patent application, which
incorporated trade secrets of Wellbeing Genomics. Moreover, PLLG appointed Qivana as its
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 36
NAI-266492314v9
exclusive distributor for the promotion, marketing, distribution and sale of its skin care products
personalized with a Skin DNA test in the entire world and Qivana agreed to use reasonable
efforts to distribute and sell those products. PLLG agreed to cooperate with the Testing Lab
Sorenson by providing all information necessary to enable Sorenson to produce DNA test
results to be provided to the Reporting Lab Qivana. PLLG further agreed to provide Qivana
with all information necessary to enable Qivana to produce SkinShift reports. Finally, PLLG
agreed to indemnify Qivana against any claims Wellbeing Genomics might assert against
Qivana.
71.
Harper and PLLG, and Qivana, launched their SkinShift marketing campaign at
the Qivana Convention on September 18-20, 2014 at the World Center Marriott in Orlando,
Florida. They had already prepared a SkinShift 2014 Convention Launch Pack Order Form and
conducted pre-launch seminars to key Qivana persons. One such seminar was conducted on
June 28, 2014 in the vicinity of the Dubsdread Golfcourse (near Orlando). During this prelaunch seminar more than 100 attendees were shown the SkinDNA Genetic Test Report of Mr.
Jerry Campisi. In the weeks prior to the 11th of June 2014, Ruthie Harper had sent a batch of
tests to Wellbeing Genomics which included amongst others, the cheek swab of a Mr. Jerry
Campisi. Unbeknownst to Wellbeing Genomics when it performed the test, Mr. Campisi is
known as a Qivana Master IBO. His resulting report was demonstrated to the attendees as the
invention of Dr. Ruthie Harper.
72.
confidential and proprietary information and a trade secret of Wellbeing Genomics, Harper the
founder of PLLG began to claim that she had invented the SkinDNA Genetic Test and
related processes. In an interview, Harper stated: And so what I did was, I worked with the lab,
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 37
NAI-266492314v9
and I went in and identified 16 chromosomal variations that different people have that will
significantly affect the health and the appearance and really basically what happens with their
skin. And then we took those 16 chromosomal areas divided those down into five key categories
of skin health.
73.
to have developed and are marketing a SkinDNA genetic test that uses or is derived from
Wellbeing Genomics SkinDNA Genetic Test Technology as its/her/their own. Such
marketing and advertising statements are false. Moreover, PLLG and/or Harper are marketing
skincare products that make reference not to SNPs but rather to category scores taken from the
Wellbeing Genomics SkinDNA Genetic Test report template and Wellbeing Genomics
SkinDNA Genetic Test Technology. Marketing those products as developed with technology
Harper developed is at least in this respect also false.
74.
Business Owners (IBOs) who distribute products with Qivana to promote Harper as the
developer of a skin DNA genetic test when in fact she has simply used Wellbeing Genomics
SkinDNA Genetic Test. One such website apparently created by a company called Q Power
Team, Ltd. in Vancouver, Canada states:
Passionate Doctor Develops DNA Skincare Breakthrough
Dr. Harper, MD has been nationally recognized for her
extraordinary accomplishments in nutritional medicine, nonsurgical aesthetic transformation and beauty without surgery. Dr.
Harpers focus is on DNA Single Nucleotide Polymorphisms
(SNPs) as a means of developing personalized skin care
interventions based on a patients unique genetic profile.
Cutting edge science and research in the Human Genome Project
led Dr. Harper to develop the biggest breakthrough in history for
skincare based on your DNA. So many products claim they are
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 38
NAI-266492314v9
made for your skin, leaving you with a best guess solution. Until
now . . .
Be one of the first worldwide to genetically predict how your skin
would age in the next 10-20 even 30 years. Look into your skins
future, impact and reverse what could potentially happen; unlock
the key to your skins genetic strengths and weaknesses that lies
deep within your DNA. A revolutionary personalized skincare
program blueprinted specific to your DNA.
The DNA Skincare Breakthrough attributed to Harper is Wellbeing Genomics SkinDNA
Genetic Test. The SkinShift Report that is linked to this webpage was prepared by Wellbeing
Genomics. Therefore, this advertising is false. Defendants have assisted Qivana and/or its IBOs
in developing such false advertising.
75.
patent application pending. In some cases, advertisements refer to Harpers patented DNA
analysis. Given that Harpers patent applications are based on Wellbeing Genomics work and
written materials, such advertisements are false.
76.
Intellectual Property Organization (WIPO) for a patent on Methods of Skin Analysis and
Uses Thereof was published by WIPO thereby disclosing confidential information and trade
secrets of Wellbeing Genomics.
77.
international launch of a marketing campaign for a skin DNA genetic test based on or using
Wellbeing Genomics SkinDNA Genetic Test Technology not only violated PLLGs
Exclusive Distributor Agreement with Wellbeing Genomics but is interfering with Wellbeing
Genomics exclusive distributorships with companies in various countries around the world.
COUNT I
BREACH OF CONTRACT
(ASSERTED AGAINST PLLG)
78.
77 above.
79.
includes but is not limited to: (a) a compilation of data cards that identify and detail the actions
of the genes associated with the SNPs that form the basis of the SkinDNA Genetic Test
Technology, that identify the specific SNP locations through a list of scientific references and
that outline the process of SNP identification, links to dermal responses and actionable pathways
to counteract SNP outcomes; (b) a detailed FAQ booklet that discloses the finer points of
Wellbeing Genomics SkinDNA Genetic Test Technology, including correlations to SNP
genetic markers; (c) a White Paper about Wellbeing Genomics SkinDNA Genetic Test
Technology that discloses results of primary market research conducted to identify potential
patient groups for the SkinDNA Genetic Test, product design and validation studies for the
SkinDNA Genetic Test, including some technical detail on how the genotyping is performed;
and (d) other information regarding Wellbeing Genomics SkinDNA Genetic Test
Technology.
81.
respects:
a.
b.
c.
82.
Wellbeing Genomics has been damaged in an amount that exceeds the minimum jurisdictional
limits of this Court and is entitled to recover said damages from PLLG.
83.
Wellbeing Genomics should also be awarded all of the reasonable and necessary
attorneys fees and costs it incurs to enforce the Exclusive Distributor Agreement.
COUNT II
DECLARATION THAT WELLBEING GENOMICS
OWNS SKINDNA GENETICS TEST TECHNOLOGY AND, IN WHOLE
OR IN PART, HARPERS PATENT APPLICATION AND ANY PATENT
ISSUED THEREON
(ASSERTED AGAINST ALL DEFENDANTS)
84.
77 above.
85.
hand, and PLLG, Harper and Urman, on the other hand, because PLLG, Harper and Urman claim
Harper invented the SkinDNA Genetic Test Technology of Wellbeing Genomics. Moreover,
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 41
NAI-266492314v9
Harper has filed a provisional patent application and a follow-on patent application on such
technology or a technology derived from Wellbeing Genomics SkinDNA Genetic Test
Technology in the United States and a similar patent application under the PCT Treaty.
86.
hand, and Qivana, on the other hand, because Harper and/or PLLG have assigned or licensed
certain rights under Harpers patent application to Qivana, and Qivana has assigned or licensed
those rights to Sorenson.
87.
CODE, Wellbeing Genomics requests and should be awarded a judgment declaring the following:
a.
Wellbeing Genomics, and not PLLG or Harper, is the lawful owner of the
SkinDNA Genetic Test Technology that Wellbeing Genomics
developed;
b.
PLLG and Harper are not entitled to apply for or pursue any patent rights
in the SkinDNA Genetic Test Technology Wellbeing Genomics
developed or any technology derived from it because Wellbeing Genomics
owns same;
c.
d.
PLLG and Harper are not entitled without Wellbeing Genomics consent
to disclose or license to Qivana or , and no Defendant is entitled to
disclose or license to Sorenson, any right to use, market or sell the
f.
g.
88.
77 above.
90.
includes but is not limited to: (a) a compilation of data cards that identify and detail the actions
of the genes associated with the SNPs that form the basis of the SkinDNA Genetic Test
Technology and that further identify the specific SNP locations through a list of scientific
references and that outline the process of SNP identification, links to dermal responses and
actionable pathways to counteract SNP outcomes; (b) a detailed FAQ booklet that discloses the
finer points of Wellbeing Genomics SkinDNA Genetic Test Technology, including
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 43
NAI-266492314v9
correlations to SNP genetic markers; (c) a White Paper about Wellbeing Genomics SkinDNA
Genetic Test Technology that discloses results of primary market research conducted to identify
potential patient groups for the SkinDNA Genetic Test, product design and validation studies
for the SkinDNA Genetic Test, including some technical detail on how the genotyping is
performed; and (d) other information regarding Wellbeing Genomics SkinDNA Genetic Test
Technology.
92.
respects:
a.
b.
c.
93.
Genomics has been damaged in an amount that exceeds the minimum jurisdictional limits of this
Court and is entitled to recover said damages from Urman.
94.
Wellbeing Genomics should also be awarded all of the reasonable and necessary
77 above.
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 44
NAI-266492314v9
96.
Wellbeing Genomics trade secrets include the following (a) a compilation of data
cards that identify and detail the actions of the genes associated with the SNPs that form the
basis of the SkinDNA Genetic Test Technology, that further identify the specific SNP
locations through a list of scientific references and that further outline the process of SNP
identification, links to dermal responses and actionable pathways to counteract SNP outcomes;
(b) a detailed FAQ booklet that discloses the finer points of Wellbeing Genomics SkinDNA
Genetic Test Technology, including correlations to SNP genetic markers; (c) a White Paper
about Wellbeing Genomics SkinDNA Genetic Test Technology that discloses results of
primary market research conducted to identify potential patient groups for the SkinDNA
Genetic Test, product design and validation studies for the SkinDNA Genetic Test, including
some technical detail on how the genetyping is performed; and (d) other information regarding
the Wellbeing Genomics SkinDNA Genetic Test Technology.
97.
its trade secrets, including but not limited to requiring PLLG and other distributors to sign
exclusive distributor agreements, requiring Urman to sign a Non-Disclosure Agreement and
advising PLLG, Harper and Urman that information it provided to them was a trade secret of
Wellbeing Genomics.
98.
over those who do not know and use the trade secrets.
99.
PLLG acquired Wellbeing Genomics data cards, FAQ booklet, White Paper and
other information about Wellbeing Genomics SkinDNA Genetic Test Technology pursuant to
the Exclusive Distributor Agreement, i.e., under circumstances in which it knew that the
technology and all related information belonged to and was a trade secret of Wellbeing
Genomics. Harper was well aware of this and often acknowledged this.
100.
Urman acquired Wellbeing Genomics data cards, FAQ booklet, White Paper and
other information about Wellbeing Genomics SkinDNA Genetic Test Technology pursuant to
the Non-Disclosure Agreement, i.e., under circumstances in which he knew that the technology
and all related information belonged to and was a trade secret of Wellbeing Genomics.
101.
PLLG, Harper and Urman have misappropriated the trade secrets of Wellbeing
b.
c.
d.
102.
Wellbeing Genomics by PLLG, Harper and Urman, Wellbeing Genomics has been damaged
and/or PLLG, Harper and/or Urman has (have) been unjustly enriched in an amount that exceeds
the minimum jurisdictional limits of this Court. Wellbeing Genomics should be awarded such
actual damages against PLLG, Harper and Urman.
103.
Genomics was willful and malicious and/or in conscious disregard of the rights of Wellbeing
Genomics. Consequently, Wellbeing Genomics should be awarded punitive damages against
PLLG, Harper and/or Urman.
COUNT V
MISAPPROPRIATION OF TRADE SECRETS
(AGAINST QIVANA)
104.
Qivana has disclosed and/or used Wellbeing Genomics trade secrets in at least
b.
c.
By using Wellbeing Genomics trade secrets in the DNA test Qivana uses
to sell Harpers skin care products.
106.
secrets, Qivana knew or had reason to know that it had obtained knowledge of Wellbeing
Genomics trade secrets from or through a person who or entity that had used improper means to
acquire the trade secrets or, alternatively, that it had acquired knowledge of Wellbeing
Genomics trade secrets under circumstances giving rise to a duty to maintain their secrecy or to
limit their use and/or had acquired such knowledge from a person who or entity that had such a
duty.
107.
Wellbeing Genomics by Qivana, Wellbeing Genomics has been damaged and Qivana has been
unjustly enriched in an amount that exceeds the minimum jurisdiction limits of this Court.
Wellbeing Genomics should be awarded such actual damages against Qivana.
108.
77 above.
110.
PLLG and/or Harper, and Qivana has wrongfully exercised dominion and control
Genomics, PLLG and/or Harper and/or Qivana has (have) damaged Wellbeing Genomics and
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 48
NAI-266492314v9
has (have) been unjustly enriched in an amount that exceeds the minimum jurisdictional limits of
the Court. Wellbeing Genomics should be awarded such damages against PLLG and/or Harper
and/or Qivana.
112.
PLLGs and/or Harpers conversion was willful and malicious and/or in conscious
disregard of the rights of Wellbeing Genomics. Qivanas conversion was in conscious disregard
of the rights of Wellbeing Genomics. Consequently, Wellbeing Genomics should be awarded
punitive damages against PLLG and/or Harper and/or Qivana.
COUNT VII
VIOLATIONS OF THE TEXAS THEFT LIABILITY ACT
(ASSERTED AGAINST ALL DEFENDANTS)
113.
Genomics trade secrets as that term is defined by the Texas Theft Liability Act, which provides
for liability for theft of property as described by 31.05 of the TEXAS PENAL CODE. TEXAS
PENAL CODE 31.05(b) provides that a person commits an offense if, without the owners
effective consent, he knowingly steals a trade secret, copies a trade secret or communicates or
transmits a trade secret. Trade secret is defined under the Texas Penal Code to mean the
whole or any part of any scientific or technical information, design, process, procedure, formula,
or improvement that has value and that the owner has taken measures to prevent from becoming
available to persons other than those selected by the owner to have access for limited purposes.
TEXAS PENAL CODE 31.05(a)(4).
115.
Genomics trade secrets. As a result of Defendants actions, they are liable to Wellbeing
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 49
NAI-266492314v9
Genomics for its actual damages, additional damages, attorneys fees and court costs. TEX. CIV.
PRAC. & REM. CODE, 134.005(a)(1) and (b). Finally, Defendants are liable for their unjust
enrichment and for punitive damages.
COUNT VIII
UNFAIR COMPETITION
(AGAINST ALL DEFENDANTS)
116.
77 above.
117.
of Wellbeing Genomics SkinDNA Genetic Test Technology and is entitled to recover its
actual damages.
121.
disregard for the rights of Wellbeing Genomics. Consequently, Wellbeing Genomics should be
awarded punitive damages against Defendants.
COUNT IX
CONSPIRACY
(AGAINST ALL DEFENDANTS)
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 50
NAI-266492314v9
122.
77 above.
123.
The conduct of Defendants and others acting in concert with them, constitutes a
civil conspiracy to misappropriate and/or convert Wellbeing Genomics trade secrets, and to
compete unfairly with Wellbeing Genomics in that:
a.
b.
c.
d.
e.
Wellbeing Genomics is entitled to recover and requests its actual, consequential, incidental and
special damages from Defendants, jointly and severally.
124.
77 above.
126.
PLLG and Harper committed fraud by making false promises that PLLG would
use any Confidential Information and trade secrets that Wellbeing Genomics provided to PLLG
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 51
NAI-266492314v9
solely to have PLLG distribute test results prepared by Wellbeing Genomics and by making
promises contained in the Exclusive Distributor Agreement with no intention of performing such
promises and misrepresenting their intent to perform. These false promises were material
because they induced Wellbeing Genomics to enter into the Exclusive Distributor Agreement
and Wellbeing Genomics to provide Confidential Information and trade secrets to PLLG. When
PLLG and Harper made the false promises and representations, they knew the promises and
representations were false or made them recklessly. Harper also falsely represented to Wellbeing
Genomics that her patent application[s] was [were] for skin care products. On May 2, 2013,
Harper received correspondence from her patent counsel regarding her patent application[s].
Hours later, Harper represented to Wellbeing Genomics that her patent application[s] was [were]
for skin care products. Harpers statement was intentionally deceitful. PLLG and Harper
made these false promises and representations with the intent that Wellbeing Genomics rely and
act on them, and Wellbeing Genomics did rely and act on such misrepresentations and was
thereby damaged.
127.
Urman committed fraud by making false promises that Urman would use any
Confidential Information and trade secrets that Wellbeing Genomics provided to Urman solely
to have PLLG distribute test results prepared by Wellbeing Genomics and by making promises
contained in the Non-Disclosure Agreement with no intention of performing such promises and
misrepresenting their intent to perform. These false promises were material because they
induced Wellbeing Genomics to enter into the Non-Disclosure Agreement and Wellbeing
Genomics to provide Confidential Information and trade secrets to Urman. When Urman made
the false promises and representations, he knew the promises and representations were false or
made them recklessly. Urman made the false promises and representations with the intent that
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 52
NAI-266492314v9
Wellbeing Genomics rely and act on them, and Wellbeing Genomics did rely and act on such
misrepresentations and were thereby damaged.
128.
entitled to and requests actual, consequential, incidental and special damages in excess of the
minimum jurisdictional limits of this Court. Wellbeing Genomics should also be awarded
punitive damages against PLLG, Harper and Urman.
COUNT XI
FALSE ADVERTISING
(ASSERTED AGAINST ALL DEFENDANTS)
129.
77 above.
130.
PLLG, Harper and/or Urman have falsely advertised and marketed Wellbeing
PLLG, Harper and/or Urman are marketing skincare products that make reference
SNPs but rather to category scores taken from the Wellbeing Genomics SkinDNA Genetic
Test report template and Wellbeing Genomics SkinDNA Genetic Test Technology.
Marketing those products as developed with technology Harper developed is at least in this
respect also false. Qivana is similarly falsely marketing PLLGs skin care products.
132.
or have a tendency to deceive a substantial segment of, Qivanas IBOs and/or the public.
133.
134.
Defendants have been unjustly enriched thereby. Wellbeing Genomics should be awarded such
damages against Defendants.
135.
137.
above.
Moreover, PLLG, Harper and Urman have claimed, alternatively, either that
Wellbeing Genomics Confidential Information and trade secrets are not confidential or
proprietary to Wellbeing Genomics or that PLLG and/or Harper developed the technology in
question. Indeed, PLLG and/or Harper has (have) even filed patent applications based on
Wellbeing Genomics SkinDNA Genetic Test Technology. Qivana has participated in the
prosecution of those patent applications.
PLAINTIFFS THIRD AMENDED PETITION AND
APPLICATION FOR TEMPORARY AND
PERMANENT INJUNCTION - Page 54
NAI-266492314v9
139.
participation with them, including Sorenson, plan to market tests and other services and products
that are based on or benefit from Wellbeing Genomics Confidential Information and trade
secrets in many countries around the world in which PLLG is not even authorized to distribute
Wellbeing Genomics SkinDNA Genetic Test results. In doing so, Defendants, and persons
acting in concert or participation with them, will almost have to disclose Wellbeing Genomics
Confidential Information and trade secrets to third parties, including Sorenson and IBOs of
Qivana. Moreover, Defendants will continue to pursue patent rights for subject matter derived
from or based on Wellbeing Genomics confidential and proprietary information and trade
secrets.
140.
141.
and enjoin Defendants and, as applicable, their officers, directors, members, agents, employees,
successors, assigns and affiliates, and any other person or entity acting in concert with or
participation with them, including but not limited to, Sorenson, who or that receives notice of
said injunction, from:
a.
b.
c.
d.
e.
Making any effort to market skin DNA genetic tests based on Wellbeing
Genomics data cards, FAQ booklet, White Paper or SkinDNA Genetic
Test Technology or test results outside the United States.
PRAYER FOR RELIEF
directors, members, agents, employees, representatives, successors, assigns and affiliates, and
any other person or entity acting in concert, participation with them, including but not limited to
Sorenson, who or that receives notices of the temporary injunction, from:
a.
or having any laboratory other than Wellbeing Genomics run tests using
Wellbeing Genomics Confidential Information or trade secrets;
b.
c.
d.
e.
Making any effort to market skin DNA genetic tests based on Wellbeing
Genomics data cards, FAQ booklet, White Paper or SkinDNA Genetic
Test Technology or test results outside the United States.
2.
directors, members , agents, employees, representatives, successors, assigns and affiliates, and
any other person or entity acting in concert, participation with them, including but not limited to
Sorenson, who receives notices of the permanent injunction, from:
a.
any laboratory other than Wellbeing Genomics run tests using Wellbeing
Genomics Confidential Information or trade secrets;
b.
c.
d.
e.
Making any effort to market skin DNA genetic tests based on Wellbeing
Genomics data cards, FAQ booklet, White Paper, SkinDNA Genetic
Test Technology or test results outside the United States.
3.
4.
5.
6.
7.
8.
9.
Such other and further relief, both general and special, legal and equitable, to