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NO.

D-1-GN-14-002452
WELLBEING GENOMICS PTY LTD. ,
Plaintiff,
v.
PLLG, LLC, DR. RUTHIE HARPER,
DAVID URMAN AND QIVANA, LLC,
Defendants.

IN THE DISTRICT COURT OF

TRAVIS COUNTY, TEXAS

98TH JUDICIAL DISTRICT

PLAINTIFFS THIRD AMENDED PETITION AND APPLICATION


FOR TEMPORARY AND PERMANENT INJUNCTION
Plaintiff Wellbeing Genomics Pty Ltd. (Wellbeing Genomics) does hereby assert
claims against Defendants PLLG, LLC (PLLG), Dr. Ruthie Harper (Harper), David Urman
(Urman), and Qivana, LLC (Qivana) as follows:
DISCOVERY CONTROL PLAN
1.

Wellbeing Genomics intends to conduct discovery under Level 3, Rule 190.4,

TEXAS RULES OF CIVIL PROCEDURE.


THE PARTIES
2.

Wellbeing Genomics is a private limited company organized under the laws of

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.

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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.

Urman is an individual resident of Philadelphia, Pennsylvania. Urman has been

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.

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B. PERSONAL JURISDICTION
8.

This Court has personal jurisdiction over Harper because Harper is an individual

resident of and regularly does business in Travis County, Texas.


9.

This Court has personal jurisdiction over PLLG because PLLG is located in and

regularly does business in Travis County, Texas.


10.

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:

PLLG d/b/a SkinShift is headquarters in Austin, Texas.

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.)

On July 12, 2012, Harper introduced Urman to Stefan Mazy of Wellbeing


Genomics as her new business development partner and, thereafter, Urman took
over day-to-day responsibility for PLLGs and Harpers efforts to develop new
business.

In particular, Urman took over day-to-day responsibility for PLLGs efforts to


persuade an American laboratory to run tests for PLLG and, in connection with
such efforts, disclosed confidential and proprietary information and trade secrets
of Wellbeing Genomics to such laboratories all while communicating regularly
with PLLG and Harper in Texas by email and by phone.

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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.

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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.

In March 2014, Qivana entered into a Memorandum of Understanding with


Harper to express 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 to jointly formulate a skin care
product line to be distributed worldwide by Qivana through its Multi-Level
Marketing channel. Qivana, in turn, agreed to make certain payments to Harper
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

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misappropriating Wellbeing Genomics trade secrets. Qivana did not respond to


Wellbeing Genomics letter. Rather, Qivana had PLLG respond to the letter.

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.

Moreover, Harper (directly and through Urman) sent technical information,


including trade secrets to Qivana. For example, Harper sent a patent application
and white paper that included Wellbeing Genomics trade secrets and test
information and test report information to Qivana.

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 sent drafts of the Exclusive Distribution Agreement it intended to enter


into with PLLG and comments on drafts to Harper and PLLG, and
Harper/PLLGs attorneys, in Texas.

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Effective September 16, 2014, Qivana entered into an Exclusive Distribution


Agreement with PLLG. PLLG was to perform and has performed its obligations
under this Exclusive Distribution Agreement largely in Texas. Qivana was to
perform and has performed many of its obligations under this Exclusive
Distribution Agreement in Texas. For example, Qivana was to make the
payments it undertook to make to PLLG in Texas and Qivana has done so.
Qivana and PLLG agreed that any legal action arising out of or related to the
Exclusive Distribution Agreement could be brought, inter alia, in the courts of the
State of Texas.

To implement the Exclusive Distribution Agreement, Justin Banner, a Founder


and Chief Marketing Officer of Qivana, has written to Harper in Texas regarding:
(a) the implementation of the marketing plan (prepared by Qivana) pursuant to
which Qivana would co-develop formulas with Harper; (b) preparation of
marketing materials and consumer reports; (c) the resolution of issues related to
restrictions on sales by Harper; and (d) responding to adverse reactions by
consumers of the skin care products.

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,

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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.

In short, Qivana has misappropriated Wellbeing Genomics trade secrets in Texas.

C. VENUE
12.

Venue is proper in Travis County, Texas, pursuant to 15.002(a)(1), (2) and (3)

of the TEXAS CIVIL PRACTICE AND REMEDIES CODE.


MANDATORY STATEMENT UNDER TRCP 47
13.

Wellbeing Genomics seeks to recover actual damages in this action in an amount

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.

In particular, Wellbeing Genomics developed a personal DNA-based laboratory

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

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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.

Wellbeing Genomics performs the SkinDNA Genetic Test on a swab specimen

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.

Wellbeing Genomics SkinDNA Genetic Test, the identity of the particular

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
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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.

On August 5, 2010, Wellbeing Genomics received an unsolicited e-mail inquiry

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
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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.

Kathleen McFadden, Harpers marketing person, did follow up with Mazy

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.

In late 2010, R. A. Harper LP (Harper LP), a limited partnership controlled by

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
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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.

In order to get Harper LP up to speed as a distributor of Wellbeing Genomics

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.

In short, Wellbeing Genomics provided a white label solution to Harper LP,

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
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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.

In 2012, Harper notified Wellbeing Genomics that she desired to establish a

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.

Pursuant to the Exclusive Distributor Agreement between Wellbeing Genomics

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.

Pursuant to the Exclusive Distributor Agreement, PLLG agreed to treat as

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.

The Exclusive Distributor Agreement provided that it would continue to May

2013 and would be continually renewed yearly unless terminated as provided by the agreement.

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30.

On the effective date of the Exclusive Distributor Agreement, Harper wrote to

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.

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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.

Harper often asked for additional information about Wellbeing Genomics

SkinDNATM Genetic Test in order, she claimed, to be able to convince her customers that the
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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
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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.

Urman did sign a Non-Disclosure Agreement with Wellbeing Genomics.

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

Wellbeing Genomics validated its SkinDNATM Genetic Test. Mazy responded:


How do we validate the test?
The validation process is quite lengthy, in order to ensure the
accuracy produced is of the highest standard, during the initial
validation phase the chip that contains all the correct DNA code
needed to be run through 1000s of samples from various
populations. This ensured that there were know [sic] errors
produced by the chip technology and also that the platform we
used to collect the sample was adequate enough (that being the
special type of buccal swab).
Like Harper (see above), Urman asked what made Wellbeing Genomics intellectual property so
difficult to duplicate. Mazy responded:
What makes our IP so difficult to duplicate?
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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

to perform Wellbeing Genomics SkinDNA Genetic Test to avoid mailing specimens to


Australia. One laboratory Urman contacted was USANA Health Science, Inc. (USANA) in
Utah. On August 30, 2012, Urman wrote to Carsten Smidt at USANA as follows:
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I wanted to provide you an initial response to your question


regarding SkinShift IP. As you know, most nutritional
formulations and skincare are not patentable, but rather rely
on trade secret protection. Even applications that have a
patent pending do not typically have a protectable patent
because of issues of obviousness and relative ease to design
around the original invention. The real issue comes down
to both legally protectable IP and barriers to entry. In the
case of SkinShift, we do believe there is protectable IP
on a number of levels.
The development of the SNP assay goes far beyond the
identification of relevant gene SNPs. A scientist can now
confirm that the TNFa SNP is relevant to inflammation or
that the MMP1 may be tied in to the breakdown of
collagen. SkinShift is the first company to spend the
resources to apply proper science to develop a SNP
assay that has predictive value. This has resulted in the
following:
SkinShift is the first company to identify 16 SNPs that
are relevant to skin health categories. Additional SNPs
are being discovered as we speak. The location of all of
these SNPs will not be disclosed and will be treated as a
trade secret.
Once a SNP is identified, the assay needs to go through a
new R and D process to determine its ability to (a) identify
the existence of such a SNP in humans, and (b) whether the
SNP has predictive value in vivo. SkinShift is the first
company to develop an assay that is predictive. This
has involved the development of reagents that are
proprietary to SkinShift.
In addition, SkinShift has conducted extensive human
studies to identify the probability of outcome associated
with the existence of a specific SNP. This, in turn,
results in development of proprietary algorithms that
maximize the ability to predict X outcomes in Y percent
of a population based on the existence of a specific SNP
combination.
This process is rendered more complex when considering
that not only are there numerous SNP combinations for a
single relevant gene, but that the combinations are
exponentially increased by the inclusion of 16 SNPs
located in multiple genes.

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The algorithms are continuously refined as new SNPs are


identified.
Thus, the identification of all relevant SNPs, while
proprietary to SkinShift and, in some cases, identifiable
to outside parties, is the beginning of the process. From
there, SkinShift has developed an assay that can
identify the existence of such SNPs in humans and
maximize predictive value, resulting in IP that is clearly
proprietary to SkinShift.
In addition, this process has taken four years to develop.
The scope of work involved in this assay creates a multiple
year head start. SkinShift is not aware of another
company that has focused on skin SNP assay
development in this manner.
This is only one half of the SkinShift system, SkinShift is
also the first company to develop specific solutions to
respond to the human outcomes predicted by its SNPs.
This is the product of four years of research and work with
literally thousands of patients in Dr. Harpers nationally
recognized clinic. Taking a new product to market is about
perception and reality. The reality is that a third party may
eventually try to replicate what Dr. Harper has done.
However, there is only one Dr. Harper, and her story of
having spent thousands of hours to pioneer the best
personalized skin care system in the world is priceless.
This is no different than a Dr. Perricone laying claim to the
first medical skin care line. Many followed, but there is
only one leading brand. This is where marketing and good
science intersect to create a market leader.
And this leads to our vision of partnering with a strong
science company with a large distributor network. By
launching within the next with Usana, SkinShift will
become a market leader. Anyone else trying to do this will
be far behind in the science and, just as importantly, be
seen as a copycat.
Dr. Harper has done her part by acquiring unprecedented
media attention and creating a high quality line. An
international launch coupled with ongoing research will
create a skin care model that will be a leader for years to
come.

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I would note that SkinShift is also evaluating the filing of


patents which will not require disclosure of all SNP
locations. While these patents will be useful, they
complement the barriers to entry identified above. And
they are only useful if they avoid providing a blueprint that
expedites competition.
Carsten, I will be happy to supply you with the studies
and draft White Papers pertaining to assay and product
development as part of your diligence.
However, we are confident that any examination of the
quality of this assay and the solutions to address human
outcomes will lead a potential partner to see that IP will not
impede a successful launch. The only thing that will hurt
us is substantial delay. That is why I encourage us to
proceed to further discussions at your earliest opportunity.
(Emphasis added). In short, Urman was largely claiming Wellbeing Genomics research and
technology as SkinShifts (PLLGs) research and technology. At the time Urman sent this email message to USANA, Wellbeing Genomics thought Urman recognized Wellbeing
Genomics SkinDNATM Genetic Test Technology as a trade secret of Wellbeing Genomics and
that he represented that PLLG d/b/a SkinShift had developed that technology (when, in fact, it
simply sold test reports generated by the technology) to encourage USANA to do business with
PLLG which, in turn, would have tests performed by Wellbeing Genomics. This was consistent
with Wellbeing Genomics provision of a white label solution to PLLG. Moreover, this is
what Harper and Urman told Wellbeing Genomics. On August 11, 2012, Urman had written to
Mazy that a meeting that he and Harper had had with USANA could not have gone better.
Urman added:
They loved the system, loved the solutions (subject to using some
of their own formulations on the supplement side, where they have
larger expertise) and some issues on protection of IP and how
much of a head start we have.

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On the last point, I indicated that a Usana launch, with 100s of


thousands of customers, would preempt the field irrespective of
trade secret protection.
The best part was Ruthie she is such a natural
scientist/spokesperson. We are definitely invited back to talk to
their beauty team within the next 3 weeks.
In short, Urman advised Wellbeing Genomics that PLLG was using Wellbeing Genomics
SkinDNA Genetic Test not only to expand PLLGs distribution of test results but also to
expand its sales of skin care products.
39.

On or about August 8, 2012, to assist PLLG and Urman in particular to better

understand Wellbeing Genomics SkinDNATM Genetic Test Technology, Mazy provided to


Urman and PLLG a White Paper. This White Paper about Wellbeing Genomics SkinDNATM
Genetic Test Technology disclosed the results of primary market research conducted to identify
potential patient groups for the SkinDNATM Genetic Test and product design and validation
studies for the SkinDNATM Genetic Test, including technical details on how the genotyping is
performed. This White Paper was Confidential Information and a trade secret of Wellbeing
Genomics and Wellbeing Genomics made that clear to Urman and PLLG.
40.

On November 6, 2012, Urman sent an email message to Mazy:


Can we discuss your white paper tomorrow? We are getting a
number of credibility questions from Ferndale focusing on the
DNA test itself and its ability to identify issues that a physical
exam could not. Ruthie and I are ready with responses, but I
would like to see if we can flesh out the data in terms of medical
device jargon (i.e., precision, accuracy and sensitivity). Your
paper has some comparative data but its not spelled out with a
great deal of explication. Please let me know when you are free.
Thanks

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

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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
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should be effective in supporting positive outcomes . . .


We have also advised them that we are not in the business of
selling the test standing alone, but there is a basic negotiation
process whereby we are seeking to maximize value . . . Again, the
focus is on the predictive capabilities of the DNA test.
On November 16, Urman sent another e-mail message to Mazy:
Ruthie and I discussed the progress, and she is excited. The
international post creates, however, a potential major limiting
factor on growth of the program. If there needs to be a batch
mailing from SkinShift to you, with occasional interference from
Custom officials, this does not an ideal business make. This is
Ruthies biggest concern. She is delighted about movement in
price and the ability to add SNPs, and you have demonstrated that
you are a proactive partner. We are also excited about the report
updates.
Let me ask you to consider this: why not create an affiliate
relationship in the US? Provide a Tech Transfer of SNPs to a
lab under a strict NDA so that SKIN DNA is protected. They
can electronically transmit data to you so all you do is the
report and collect a license fee. By removing much labor and
transport costs, my best is that this could be as or more profitable
for you moving forward, and will support well our US activity.
Ultimately, multiple affiliates is probably the best way to proceed
long term.
(Emphasis in original.) In substantially all of Urmans (PLLGs) early e-mail correspondence
with Wellbeing Genomics about using a U.S. laboratory, Urman (PLLG) stressed the use of nondisclosure agreements to protect the confidentiality of Wellbeing Genomics SkinDNATM
Genetic Test Technology.
42.

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
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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.

On December 16, 2013, Urman requested Confidential Information of Wellbeing

Genomics based on PLLGs commencement of negotiations with an affiliate marketing company


(which turned out to be Qivana) and based an alleged concern that the Federal Drug
Administration might crack down on PLLG and Wellbeing Genomics. Urman wrote:
Speaking of those folks, I am sure you saw that the FDA cracked
down on them and actually shut down their tests for not having had
validating data for the SNPs. Although our claims are limited by
comparison, we would really like to have whatever actual studies
were conducted to validate the SNPs. We have an NDA in place
and are happy to sign one that refers specifically to this data, but
we feel it is critical to have it in order to be protected since we are
the entity distributing in the US.
Mazy responded that Wellbeing Genomics SkinDNATM Test was not subject to FDA
regulation. And he stated:

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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.

On or about February 14, 2014, Harper received a vendors proposal to develop a

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:
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Qivana, a major MLM, is launching us as their entire line for


health and beauty. They will be focusing on Asia after an initial
US launch. The two VERY important points are (1) can we import
tests to the Asian countries, ie, Malaysia, Japan, Indonesia and
Hong Kong, and (2) are there any regulatory issues with a nonmedical DNA test such as this.
Urman had advised Mazy previously that PLLG was talking to multi-level marketing firms. In
his e-mail message, dated November 16, 2012, to Mazy, Urman had written:
With respect to the direct to consumer market, our PR results have
happened because Dr. Harper has reached a solution that is tied to
the (SkinDNATM ) test.
With respect to MLM companies, we have told them the same
thing: Dr. Harper is amenable to other formulations after all,
many of the MLMs have their own formulation teams but that
she would want to review the ingredients to ensure the integrity of
the system. That is what we advised USANA. . .
Believing that PLLG wanted to work with Wellbeing Genomics, Mazy greeted this news
positively and responded to the questions in Urmans March 9th e-mail message as follows:
To help answer your questions:
1) Yes you wont have any problems importing to Malaysia, Japan
or Indonesia. As we currently have dealings in Hong Kong it may
cause a bit of a concern however everything is up for review in
the next few months.
2) The CFDA (China FDA) recently imposed a hold on all
medical DNA testing until they can further regulate it within
China. However we have managed to pass through as we do not
claim to be a medical test that diagnoses any serious medical
disease but rather used for educational purposes.
48.

On March 25 and 27, 2014, respectively, Harper and Qivana signed a

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
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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:
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I am fine with both of you coming in. As discussed, the win/win


here is your getting the biggest chunk of the market Asia as
well as some kind of a SAAS model for the US lab using the
reporting software. Your administration cost for the US lab,
whether or not they are interested in using your technology, is
small. The actually technology is quite prevalent but you might
be able to avoid some of the set-up costs at a US lab.
As to the rest, this comes down to your negotiating with Qivana.
Since Ive been working with them for some time, I am simply
trying to provide you with guidance so you have a successful
outcome. Again, I am trying to help you keep this business.
(Emphasis in original.)
50.

On April 14, 2014, (UTC-06:00) Urman wrote to Mazy as follows:


As discussed, SkinShift has entered into a deal with Qivana
under which Qivana would have the worldwide rights to
market the SkinShift system, including the DNA test, on an
exclusive basis in terms of the SkinShift name for the consumer
market. Ruthie would have the continuing right to market the
system to practitioners and to her own patients.
As discussed, this is not a sale. It is a licensing relationship and
Ruthie remains the owner of the LLC that operates the SkinShift
product line and distributes the DNA test.
So, you can think of Qivana as one large master distributor that
will distribute the SkinShift system to customers throughout the
world. It is my understanding that the launch of the Qivana license
and the products thereunder will occur in September 2014 in the
US and will cover customers in the US and Canada.
Qivana intends to launch the products and the test in Asia over the
next 6 months thereafter. Its current Asian markets include
Malaysia, Hong Kong, Japan, portions of Indonesia, and Vietnam.
Asia is by far the fastest growing market and its anticipated to
eclipse North American sales over the next year.
As also discussed, the FDA in the US is clear that a lab performing
genomic testing must be a CLEA cleared US lab. That is why we
need to proceed with a US lab for US customers. You have
indicated that, with the exception of jurisdictions where you might
have exclusive commitments, SkinDNA could continue providing
SNP analysis lab services for SkinShift in Asian countries and

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other countries where such services can be performed consistent


with legal requirements.
While any ongoing arrangement requires Qivanas consent,
both Ruthie and I strongly endorsed using SKINDNA as much
as possible going forward based in large part on Stefans
responsiveness and the labs experience in this arena. To me,
what makes sense is for SKINDNA to continue providing SNP
testing for Asian countries and to license the reporting
software to another lab for some fee (probably on a per
customer basis).
(Emphasis in original.)
51.

In fact, by April 17, 2014, Qivana and Sorenson had prepared and Sorenson had

signed a Mutual Nondisclosure Agreement with the intention of negotiating an agreement to


collaborate on the development of a DNA test for determining skin characteristics.
52.

On April 14, 2014, Stephen Grant, on behalf of Wellbeing Genomics, spoke to

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.

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53.

On April 17, 2014, when Urman responded to Grant, Urman changed PLLGs

position regarding Wellbeing Genomics ownership of intellectual property in it SkinDNA


Genetic Test Technology dramatically:
After reviewing the agreement you sent, there is very little
remarkable about it. As I had believed, we have an agreement
with your company to distribute your skin DNA assay. Dr. Harper
created a proprietary skin care system and developed a method to
identify products that correlate with SNP results. PLLGs
intellectual property is the correlation of these products to SNP
results.
According to the US Supreme Court, the interpretation of SNP
data or other genomic data is not protectable IP in terms of patent
protection. In addition, there are numerous firms doing SNP
analysis, many of which are currently doing SNP analyses
pertaining to skin and skin aging. In fact, we have located several
patent applications beginning at least in 2004 describing SNP tests
for skin health. There is obviously very little that is not already in
the public domain when it comes to SNP analyses.
As I understand it, the report was customized to the specific system
that Dr. Harper and PLLG developed. This, I would maintain, is
confidential information of PLLG.
Thus, the service provided by your company is something that
is in the public domain and not protectable IP. At this point,
PLLG can contract with myriad companies that provide such a
service.
It is also apparent that the Agreement between PLLG and Skin
DNA is problematic at best due to the fact that Skin DNA was
offering a test that it could not legally provide in the US. There are
numerous rulings from FDA indicating that its discretionary
exemption of non-medical genomic tests from FDA clearance
requirements is predicated on these tests being conducted by a
CLEA cleared lab. Despite requests to you either to contract
with a third party lab or otherwise address this, this has not
happened.
To the extent it is even valid, the current agreement appears to be
terminable effective May 2014. I reiterate our offer to continue
to work together, but the relationship of the parties is clear:
that of PLLG being an independent contractor of Skin DNA.
There is no partnership, and any claim of proprietary rights to
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the SNP test or the specific report tailored to PLLGs products


would be vigorously disputed.
I will discuss this further with Ruthie, but as of right now I
continue to be authorized to offer the SNP test opportunity to you
in Asia and other legally permissible with a company that will be
ordering thousands of SNP tests in Asia, and provide you the
opportunity to do the report. We can easily contract with a third
party software provider to create the template for the report,
with a third party lab developing the inputs and Ruthie
identifying the correlation between those inputs and product
recommendations, as she has previously done. We seek to offer
this opportunity to you not because of a voidable contract, but
because of the relationship developed between Ruthie and Stefan.
I hope we can focus on a constructive path moving forward.
(Emphasis in original.)
54.

On April 19, 2014 (Australia time), Grant wrote to Harper:


The tone of Davids communication with us clearly indicates he
believes you (Ruthie Harper) to have created SkinDNA. His
reference to us lately is that we are a supplier to you by way of lab
processing only.
Finally, with reference to the Qivana deal; this is a clear breach of
your Agreement with us. SkinShift is not permitted to resell
SkinDNA through another distributor.
As on numerous occasions we have indicated information
provided to you as confidential; it would be unethical and
immoral to use that identical information in the formation of
either a patent or public perception of ownership.
Ruthie, we have indeed had a long standing relationship. We
would like to see everyone come out of this with a positive and
possibly profitable outcome. However Davids communication
with us clearly indicates he is of the belief that SkinShift can cease
service with SkinDNA at any time and continue with any lab you
choose. This becomes a breach of trade secrets if SkinShift uses
the same SNPs identified collectively by Wellbeing Genomics. As
we have not provided those specific SNP locations, were
completely baffled as to how you would have that information.

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(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.

Moreover, as Harper prepared to file a follow-on patent application in the United

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

PCT patent application.


58.

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.

In an email follow-up to their telephone conversation, Grant told Harper that

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.
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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

on notice of the following:

Wellbeing Genomics developed its Skin DNA Genetic Test.

Harper reviewed Wellbeing Genomics findings and agreed to distribute


Wellbeing Genomics products and services as White Label solutions,
i.e. to distribute Wellbeing Genomics products and services under her
name.

Wellbeing Genomics SkinDNA Genetic Test, its DG-Theorem and


its Mazy Scale for preparing test results were trade secrets of Wellbeing
Genomics.

SkinShifts (PLLGs) agreement with Wellbeing Genomics limited it to


distributing Wellbeing Genomics products and services in the United
States only.

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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.

Qivana did understand Wellbeing Genomics assertions in Grants letter. For

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
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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.

Meanwhile, PLLG continued to negotiate an Exclusive Distribution Agreement

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.

At Harpers request, and given Harpers continuing promises that something

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.

On September 4, 2014, Wellbeing Genomics sent a letter to Justin Banner at

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
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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.

Although all of Wellbeing Genomics SkinDNA Genetic Test Technology is

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,
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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.

Moreover, in marketing materials and in advertising, PLLG and/or Harper claim

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.

Moreover, new websites are being created by Qivana and/or Independent

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
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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.

Defendants and Qivanas marketing efforts often state Harper/PLLG have a

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.

On or about October 30, 2014, Harpers international application to the World

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.

Defendants and Qivana are marketing PLLGs products internationally. The

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.

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COUNT I
BREACH OF CONTRACT
(ASSERTED AGAINST PLLG)
78.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77 above.
79.

Wellbeing Genomics and PLLG entered into the Exclusive Distributor

Agreement. The Exclusive Distributor Agreement is a valid, enforceable contract.


80.

The Confidential Information that Wellbeing Genomics has provided to PLLG

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.

PLLG breached the Exclusive Distributor Agreement in at least the following

respects:

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a.

PLLG transferred or attempted to transfer rights under the Exclusive


Distributor Agreement without the consent of Wellbeing Genomics in
breach of Section 9 of the Exclusive Distributor Agreement;

b.

PLLG disclosed Confidential Information of Wellbeing Genomics to third


parties without Wellbeing Genomics consent in breach of Section 10 of
the Exclusive License Agreement; and

c.

PLLG marketed a SkinDNA Genetic Test developed using Wellbeing


Genomics Confidential Information in breach of Section 12 of the
Exclusive Distributor Agreement.

82.

As a result of PLLGs breaches of the Exclusive Distributor Agreement,

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.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77 above.
85.

A justifiable controversy has arisen between Wellbeing Genomics, on the one

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,
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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.

A justifiable controversy has arisen between Wellbeing Genomics, on the one

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.

Therefore, pursuant to Chapter 37 of the TEXAS CIVIL PRACTICE & REMEDIES

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.

If Harper obtains a patent based upon the follow-on patent application or


PCT application she filed or any amendment thereof that the patent
belongs to Wellbeing Genomics;

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

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SkinDNA Genetic Test Technology that Wellbeing Genomics


developed, or any technology derived from it;
e.

PLLG and Qivana are not entitled to market Wellbeing Genomics


SkinDNA Genetic Test results outside the United States;

f.

PLLG and Qivana are not entitled to authorize Qivana to market


Wellbeing Genomics Skin DNA Genetic Test results; and

g.

PLLG and Qivana are not entitled to claim Wellbeing Genomics


SkinDNA Genetic Test and test results reports are its own reports.

88.

Wellbeing Genomics should be awarded all of the reasonable and necessary

attorneys fees and costs it incurs to obtain such declaratory relief.


COUNT III
BREACH OF CONTRACT
(ASSERTED AGAINST URMAN)
89.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77 above.
90.

Wellbeing Genomics and Urman entered into the Non-Disclosure Agreement.

The Non-Disclosure Agreement is a valid, enforceable contract.


91.

The Confidential Information that Wellbeing Genomics has provided to Urman

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
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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.

Urman has breached the Non-Disclosure Agreement in at least the following

respects:
a.

By disclosing Wellbeing Genomics Confidential Information to one or


more third parties without prior, written approval of Wellbeing Genomics;

b.

By failing to notify Wellbeing Genomics of his unauthorized disclosures


of Wellbeing Genomics Confidential Information; and

c.

By claiming that Wellbeing Genomics Confidential Information is not the


property of Wellbeing Genomics.

93.

As a result of Urmans breaches of the Non-Disclosure Agreement, 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 Urman.
94.

Wellbeing Genomics should also be awarded all of the reasonable and necessary

attorneys fees and costs it incurs to enforce the Non-Disclosure Agreement.


COUNT IV
MISAPPROPRIATION OF TRADE SECRETS
(AGAINST HARPER, PLLG AND URMAN)
95.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77 above.
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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.

Wellbeing Genomics undertook reasonable steps to protect the confidentiality of

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.

Wellbeing Genomics trade secrets provide advantages to Wellbeing Genomics

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

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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

Genomics in at least the following respects:


a.

By using Wellbeing Genomics SkinDNA Genetic Test Technology


data cards, FAQ booklet, White Paper and other trade secrets of Wellbeing
Genomics not to serve as Wellbeing Genomics distributor in the United
States but rather to develop and use test technology derived from it to
develop its own skin genetic testing business in the United States and
elsewhere;

b.

By filing patent applications for an invention based on or derived from


Wellbeing Genomics SkinDNA Genetic Test Technology;

c.

By disclosing Wellbeing Genomics trade secrets to third parties,


including Qivana and laboratories (other than Wellbeing Genomics),
without Wellbeing Genomics consent; and

d.

By otherwise using Wellbeing Genomics trade secrets for purposes not


authorized by Wellbeing Genomics.

Wellbeing Genomics did not authorize any of these actions.

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102.

As a direct and proximate result of the misappropriation of trade secrets of

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.

PLLGs, Harpers and Urmans misappropriation of trade secrets of Wellbeing

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.

Wellbeing Genomics incorporates herein the allegations made in paragraph 1 to

77 and 96 to 101 above.


105.

Qivana has disclosed and/or used Wellbeing Genomics trade secrets in at least

the following respects:


a.

By participating in the prosecution of Harpers patent applications, which


have disclosed trade secrets of Wellbeing Genomics, and by using the
pendency of the patent applications to sell DNA test results with PLLGs
skin care products;

b.

By disclosing trade secrets of Wellbeing Genomics to Sorenson; and

c.

By using Wellbeing Genomics trade secrets in the DNA test Qivana uses
to sell Harpers skin care products.

Wellbeing Genomics did not authorize any of these actions.


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106.

At or by the time Qivana first disclosed or used Wellbeing Genomics trade

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.

As a direct and proximate result of the misappropriation of trade secrets of

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.

Qivanas misappropriation of trade secrets of Wellbeing Genomics was in

conscious disregard of the rights of Wellbeing Genomics. Consequently, Wellbeing Genomics


should be awarded punitive damages against Qivana.
COUNT VI
CONVERSION
(ASSERTED AGAINST PLLG, HARPER AND QIVANA)
109.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77 above.
110.

PLLG and/or Harper, and Qivana has wrongfully exercised dominion and control

over Wellbeing Genomics property in a manner inconsistent with Wellbeing Genomics


exclusive rights to said property.
111.

As a direct and proximate result of their conversion of its property of Wellbeing

Genomics, PLLG and/or Harper and/or Qivana has (have) damaged Wellbeing Genomics and
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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.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77, 95 to 103 and 105 to 108 above.


114.

Defendants committed theft of Wellbeing Genomics property, i.e., Wellbeing

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.

By the actions described herein, Defendants have committed theft of Wellbeing

Genomics trade secrets. As a result of Defendants actions, they are liable to Wellbeing
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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.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77 above.
117.

Wellbeing Genomics created its SkinDNA Genetic Test Technology through

the use of extensive time, labor, skill and money.


118.

Defendants have used Wellbeing Genomics SkinDNA Genetic Test

Technology or parts of it in competition with Wellbeing Genomics.


119.

Defendants have gained a special advantage by using Wellbeing Genomics

SkinDNA Genetic Test Technology.


120.

Wellbeing Genomics has been damaged as a proximate result of Defendants use

of Wellbeing Genomics SkinDNA Genetic Test Technology and is entitled to recover its
actual damages.
121.

Defendants unfair competition was willful and malicious or done in conscious

disregard for the rights of Wellbeing Genomics. Consequently, Wellbeing Genomics should be
awarded punitive damages against Defendants.
COUNT IX
CONSPIRACY
(AGAINST ALL DEFENDANTS)
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122.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

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.

A combination of two or more persons existed;

b.

An object to the combination was to accomplish an unlawful purpose or a


lawful purpose by unlawful means;

c.

A meeting of the minds existed on the chosen course of action;

d.

One of the members of the alleged combination committed an unlawful,


overt act to further the object or course of action; and

e.

Wellbeing Genomics suffered damages as a proximate result.

Wellbeing Genomics is entitled to recover and requests its actual, consequential, incidental and
special damages from Defendants, jointly and severally.
124.

Such conduct by Defendants was conducted in conscious disregard of the rights of

Wellbeing Genomics. Therefore, Wellbeing Genomics is entitled to recover and requests in


addition to the actual damages set forth above punitive damages against Defendants.
COUNT X
FRAUD
(ASSERTED AGAINST HARPER, PLLG AND URMAN)
125.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

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
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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
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Wellbeing Genomics rely and act on them, and Wellbeing Genomics did rely and act on such
misrepresentations and were thereby damaged.
128.

As a result of the fraud of PLLG, Harper and Urman, Wellbeing Genomics is

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.

Wellbeing Genomics incorporates herein the allegations made in paragraphs 1 to

77 above.
130.

PLLG, Harper and/or Urman have falsely advertised and marketed Wellbeing

Genomics SkinDNA Genetic Test Technology and Wellbeing Genomics SkinDNA


Genetic Test report as their own. Qivana is similarly falsely marketing PLLGs skin care
products.
131.

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.

The foregoing false marketing statements by Defendants have actually deceived,

or have a tendency to deceive a substantial segment of, Qivanas IBOs and/or the public.
133.

Defendants have caused such false statements to enter interstate commerce.

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134.

Wellbeing Genomics has been damaged by Defendants false advertising and/or

Defendants have been unjustly enriched thereby. Wellbeing Genomics should be awarded such
damages against Defendants.
135.

Wellbeing Genomics should be awarded punitive damages against Defendants.

APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION


(ASSERTED AGAINST ALL DEFENDANTS)
136.

Wellbeing Genomics incorporates the allegations set forth in paragraph 1 to 135

137.

As stated above, Defendants have misappropriated and, unless enjoined, will

above.

continue to misappropriate Wellbeing Genomics Confidential Information and trade secrets by


disclosing Wellbeing Genomics Confidential Information and trade secrets to third parties,
marketing Wellbeing Genomics SkinDNA Genetic Test Technology and test reports as their
own or Harpers own, developing their own skin genetics test using Wellbeing Genomics
Confidential Information and trade secrets, having Sorenson run such a test for them and using
Wellbeing Genomics Confidential Information for other purposes not authorized by the
Exclusive Distributor Agreement or the Non-Disclosure Agreement or otherwise authorized by
Wellbeing Genomics.
138.

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.
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139.

Unless enjoined, Defendants and persons and entities acting in concert or

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.

Wellbeing Genomics will be irreparably harmed by such conduct by Defendants.

141.

Wellbeing Genomics requests temporary and permanent injunctions that restrain

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.

Using any information in Wellbeing Genomics data cards, FAQ booklet


or White Paper or using SkinDNA Genetic Test Technology for any
purpose not authorized by Wellbeing Genomics, including developing a
new skinDNA genetic test based on it or having any laboratory other than
Wellbeing Genomics run tests using Wellbeing Genomics Confidential
Information or trade secrets;

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b.

Claiming that Harper developed a genetic skin test or asserting Wellbeing


Genomics test results are their own; and

c.

Disclosing any information in or derived from Wellbeing Genomics data


cards, FAQ booklet or White Paper or Wellbeing Genomics SkinDNA
Genetic Test Technology to third parties, including, but not limited to
Qivana and any laboratory other than Wellbeing Genomics;

d.

Taking any steps to launch or implement an agreement, entering into an


agreement, or implementing any agreement with Qivana to market skin
DNA genetic tests; and

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

WHEREFORE, Wellbeing Genomics prays that Defendants be cited to appear and


answer and that Wellbeing Genomics be awarded the following relief against Defendants:
1.

A temporary injunction restraining Defendants and, as applicable, their officers,

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.

Using any information in or derived from Wellbeing Genomics data


cards, FAQ booklet or White Paper or Wellbeing Genomics SkinDNA
Genetic Test Technology for any purpose not authorized by Wellbeing
Genomics, including developing a new skin DNA genetic test based on it

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or having any laboratory other than Wellbeing Genomics run tests using
Wellbeing Genomics Confidential Information or trade secrets;
b.

Claiming that Harper developed a genetic skin test or asserting Wellbeing


Genomics test results are their own;

c.

Disclosing any information in or derived from Wellbeing Genomics data


cards, FAQ booklet or White Paper or Wellbeing Genomics SkinDNA
Genetic Test Technology to third parties, including, but not limited to
Qivana and any laboratory other than Wellbeing Genomics;

d.

Taking any steps to launch or implement an agreement, entering into an


agreement or implementing any agreement with Qivana to market skin
DNA genetic tests; and

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.

A permanent injunction restraining Defendants and, as applicable, their officers,

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.

Using any information in or derived from Wellbeing Genomics data


cards, FAQ booklet, White Paper or SkinDNA Genetic Test
Technology for any purpose not authorized by Wellbeing Genomics,
including developing a new skin DNA genetic test based on it or having

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any laboratory other than Wellbeing Genomics run tests using Wellbeing
Genomics Confidential Information or trade secrets;
b.

Claiming that Harper developed a genetic skin test or asserting Wellbeing


Genomics test results are their own;

c.

Disclosing any information in or derived from Wellbeing Genomics data


cards, FAQ booklet or White Paper or Wellbeing Genomics SkinDNA
Genetic Test Technology to third parties, including, but not limited to
Qivana or any laboratory other than Wellbeing Genomics;

d.

Taking any steps to launch or implement an agreement, entering into an


agreement, or implementing any agreement, with Qivana to market skin
DNA genetic tests; and

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.

A judgment for Wellbeing Genomics actual damages;

4.

A judgment for punitive damages;

5.

A judgment for Wellbeing Genomics reasonable and necessary attorneys fees;

6.

A judgment for pre-judgment interest as allowed by law;

7.

A judgment for post-judgment interest as allowed by law;

8.

A judgment for costs; and

9.

Such other and further relief, both general and special, legal and equitable, to

which Wellbeing Genomics may show itself justly entitled.

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