NAI_266492314_9_Wellbeing Plaintiff's Third Amended Petition

PLAINTIFFS THIRD AMENDED PETITION AND APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION - Page 1 NAI-266492314v9

NO. D-1-GN-14-002452

WELLBEING GENOMICS PTY LTD. ,

Plaintiff,

IN THE DISTRICT COURT OF

v.

PLLG, LLC, DR. RUTHIE HARPER, DAVID URMAN AND QIVANA, LLC,

TRAVIS COUNTY, TEXAS

Defendants. 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.


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.


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.


Moreover, Urman took over day-to-day responsibility for negotiating for PLLG

and Harper a distribution deal with marketing firms, ultimately negotiating such a

deal with Qivana and, in connection with such efforts, disclosed confidential and

proprietary information and trade secrets of Wellbeing Genomics all while

communicating regularly with PLLG and Harper in Texas by email and by phone.

On more than one occasion, Urman met with PLLG and Harper in Texas to

discuss such activities.

On September 21, 2012, David Urman met with Stefan Mazy in PLLGs

SkinShift offices at 3901 Medical Parkway, Austin, Texas, and they discussed

new packaging for the SkinShift lists, cost reductions, changes to the SkinShift

report and planned promotion efforts of SkinShift in Texas and throughout the

United States. Later, at dinner in Austin, Urman and Mazy discussed marketing

and distribution of SkinShift reports.

Throughout his dealings with Wellbeing Genomics at least until April 17, 2014

Urman falsely represented to Wellbeing Genomics that he, PLLG and Harper

recognized Wellbeing Genomics intellectual property in order to induce

Wellbeing Genomics to send its confidential and proprietary information and

trade secrets to him, to PLLG and Harper in Texas.

Urman has benefitted and will benefit financially from PLLGs and Harpers

distribution agreement with Qivana, including but not limited to the distribution

of genetic test reports and PLLG/Harpers skin care products in Texas.


11. This Court has personal jurisdiction over Qivana pursuant to 17.041 et seq. of

the TEXAS CIVIL PRACTICE & REMEDIES CODE, because Qivana has done business in Texas, and

because Qivana has committed one or more torts in Texas, as follows:

Qivana is a multi-level marketing firm that sells health, nutrition, beauty and anti-

aging 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


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 pre-

launch 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.


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,


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


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


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


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


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


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.


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.


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


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


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 Non-

Disclosure 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?


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:


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.


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.


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 e-

mail 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.


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


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


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 non-

disclosure 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


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:


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:


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 non-medical 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


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:


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


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).


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.


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


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.


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.


(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.


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.


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


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


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 pre-

launch 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,


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, non-surgical 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


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.


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:


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)


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,


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


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)


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

PLAINTIFFS THIRD AMENDED PETITION AND APPLICATION FOR TEMPORARY

NAI_266492314_9_Wellbeing Plaintiff's Third Amended Petition

Documents

Transcript of NAI_266492314_9_Wellbeing Plaintiff's Third Amended Petition