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SUPREME COURT OF THE STATE OF NEW YORK Index No.: Date Purchased: I ..

COUNTY OF NEW YORK X

KEVEN DUFFY, LORELEI FITZGERALD, PAMELA GOLD, BRITTANY HAYES, SARAH JOHNSON, MARIA RESENDE,

Plaintiffs,

-against-

Civil Action

SUMMONS

0 9 1 0 8 3 9 5

Plaintiff designates New York County as place of trial

ACU-GEN BIOLABS, TNC., C.N. WANG, MOMMY’S THINKIN’, INC., PREGNANCY residence

STORE, PREGNANCYSTORE.COM, and SHERRY BONELLI,

The basis of venue is: Plaintiffs’

Defendants. X

TO THE ABOVE NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED to answer the Complaint in this action, and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a notice of appearance on the plaintiffs’ attorneys within twenty (20) days after the service of this Summons, exclusive of the day of service, where service is made by delivery up0 after completion of service where service is m or Answer, judgment will be taken against you by default for t

Dated: June 10,2009

(201) 225-9001 3

Our File No.:

TO: ACU-GEN BIOLABS, INC. 50 Stedman Street, Unit 1A Lowell, MA 0 185 1

C.N. WANG c/o Acu-Gen Biolabs, Inc. 50 Stedman Street, Unit 1A Lowell, MA 0 185 1

On Point NewsOn Point News

http://PREGNANCYSTORE.COM

http://www.onpointnews.com


? ?

MOMMY’S THINKIN’, INC. 13333 Huntington Chase Rockton, IL 6 1072

PREGNANCY STORE, 13333 Huntington Chase Rockton, IL 6 1072

PREGNANCYSTORE.COM 13333 Huntington Chase Rockton, IL 6 1072

SHERRY BONELLI 13333 Huntington Chase Rockton, IL 6 1072





SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK


Plaintiffs,

-against-

Index No.:

09108395

Civil Action

VERIFIED COMPLAINT

ACU-GEN BIOLABS, INC., C.N. WANG, MOMMY’S THINKIN’, INC., PREGNANCY STORE, PREGNANCYSTORE.COM, and SHERRY BONELLI,

Defendants . X

Plaintiffs, E V E N DUFFY, LORELEI FITZGERALD, PAMELA GOLD, BRITTANY

HAYES, SARAH JOHNSON and MARIA RESENDE, residing in the State of New York, by way of

Complaint against defendants, say upon information and belief:

I. INTRODUCTION

1. Plaintiffs bring this Complaint against defendants, ACU-GEN BIOLABS, INC. (“ACU-

GEN’)), C.N. WANG (“WANG”), MOMMY’S THINKIN’, INC. (“MOMMY’S THINKIN”’),

PREGNANCY STORE, PREGNANCYSTORE.COM, and SHERRY BONELLI (“BONELLI”), for

damages and equitable relief, including but not limited to, disgorgement of all income, profits and ill-

gotten gains from the defendants’ sale of their product, monetary damages, out-Mhpocket expenses and

t Eesult of their * @&

consequential damages, restitution and injunctive relief, and other damgges, (‘(

A, purchase of the Baby Gender Mentor product (“Gender Test”). I J

.






I c

11. PARTIES

2. The plaintiff, KEVEN DUFFY (“DUFFY”), resides in New York County, New York.

She is a victim of the defendants’ improper and illegal business practices as detailed in this Complaint.

3. The plaintiff, LORELEI FITZGERALD (“FITZGERALD”), resides in New York. She

is a victim of the defendants’ improper and illegal business practices as detailed in this Complaint.

4. The plaintiff, PAMELA GOLD (“GOLD”), resides in New York. She is a victim of the

defendants’ improper and illegal business practices as detailed in this Complaint.

5 . The plaintiff, BRITTANY HAYES (“HAYES”), resides in New York. She is a victim

of the defendants’ improper and illegal business practices as detailed in this Complaint.

6. The plaintiff, SARAH JOHNSON (“JOHNSON”), resides in New York. She is a

victim of the defendants’ improper and illegal business practices as detailed in this Complaint.

7. The plaintiff, MARIA RESENDE (“RESENDE”), resides in New York. She is a victim

of the defendants’ improper and illegal business practices as detailed in this Complaint.

8. ACU-GEN manufactures, markets and sells a consumer product known as the Baby

Gender Mentor Kit. ACU-GEN advertises, distributes and sells its product throughout the United

States, including New York, and to customers outside of the United States.

9. At all times mentioned herein, defendant ACU-GEN is a foreign corporation, limited

liability company, or other entity duly authorized to conduct business in the State of New York.

10.

the United States.

At all times mentioned herein defendant ACU-GEN’s principal place of business is in

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I R .z t

11, WANG is the owner, operator, President, officer, majority shareholder, and/or owns a

significant percentage of the company. WANG actively and independently makes representations and

misrepresentations concerning the Gender Test, including its accuracy and his company’s guarantees.

These misrepresentations are made knowingly, intentionally and outside the walls of any corporate

entity. In addition to being personally responsible for the knowing and intentional misrepresentations,

WANG exercised complete domination and control of both the entity’s policy and business practices,

used his control to commit fraud or wrong, breached a legal duty, and/or committed dishonest or unjust

acts, including but not limited to, using said control to avoid personal liability previously assumed by

each defendant and as such, WANG cannot hide behind the corporate entity liability shield, as the

corporate entity veil should be pierced. WANG also has liability as an individual based on actions and

omissions as an individual and in an individual capacity.

12. PREGNANCY STORE, MOMMY’S THINKIN’, and PREGNANCYSTORE.COM.

are entities, businesses and/or stores that are owned, operated and controlled by BONELLI.

MOMMY’S THINKIN’, PREGNANCY STORE and/or PREGNANCYSTORE.COM are the

exclusive distributors of the Baby Gender Mentor product, besides ACU-GEN itself, and actively

advertise, distribute and sell the product throughout the United States, including to residents of New

York.

13. At all times mentioned herein, defendant MOMMY’S THINKIN’ is a foreign

corporation, limited liability company, or other entity duly authorized to conduct business in the State

of New York.

14. At all times mentioned herein, defendant MOMMY’S THINKIN’ is a foreign

corporation, limited liability company, or other entity conducting business in the State of New York.

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1 1

1 c

15. At all times mentioned herein defendant MOMMY’S THINKIN’S principal place of

business is in the United States.

16. At all times mentioned herein, defendant PREGNANCY STORE is a foreign


of New York.

17. At all times mentioned herein, defendant PREGNANCY STORE is a foreign


18. At all times mentioned herein defendant PREGNANCY STORE’S principal place of

business is in the United States.

19. At all times mentioned herein, defendant PREGNANCYSTORE.COM is a foreign


of New York.

20. At all times mentioned herein, defendant PREGNANCYSTORE.COM is a foreign


21. At all times mentioned herein defendant PREGNANCYSTORE.COM’s principal place

of business is in the United States.

I 22. BONELLI is the owner, operator, President, officer, majority shareholder and/or owns a

I significant percentage of the company andor is the alter ego of MOMMY’S THINKIN’,

PREGNANCY STORE and PREGNANCYSTORE.COM. BONELLI actively and independently

makes representations and misrepresentations concerning the Gender Test, including its accuracy and

the product’s guarantees. These misrepresentations are made knowingly, intentionally and outside the

walls of any corporate entity. In addition to being personally responsible for the knowing and

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1 .F 1 r

intentional misrepresentations, BONELLI exercised complete domination and control of both of the

entities’ and/or businesses’ policies and practices, used her control to commit fraud or wrong, breached

a legal duty, andor committed dishonest or unjust acts, including but not limited to using said control

to avoid personal liability previously assumed by each defendant and, as such, BONELLI cannot hide

behind the corporate entity liability shield, as the corporate entity veil should be pierced. BONELLI

also has liability as an individual based on actions and omissions as m individual and in an individual

capacity.

23. BONELLI, MOMMY’S THINKIN’, PREGNANCY STORE and/or

PREGNANCYSTORE.COM acted in conspiracy with the other defendants to sell the Gender Test to

residents of New York.

111. JURISDICTION AND VENUE

24. The defendants sell products to residents of the State of New York, transact business in

the State of New York, including business activities which are the subject of the present complaint, and

have other contacts with the State that are sufficient to establish jurisdiction.

25.

26.

27.

This Court has personal jurisdiction over the defendants.

This Court has subject matter jurisdiction over this action.

Venue is proper in New York County, New York.

IV. FACTS

28. ACU-GEN and WANG created, advertised, sold, and marketed the Baby Gender

Mentor test kit. Additionally, ACU-GEN and WANG conduct all of the necessary blood tests and

interpret the results. The Gender Test is marketed in the United States and is sold via the Internet on

www. babygendermentor.com and www.premancystore.com.

-5-



http://babygendermentor.com

http://www.premancystore.com



1

29, The Baby Gender Mentor product is touted by defendants as being the “gold standard

for prenatal gender detection.” Defendants further state that “[tlhe service not only sets the benchmark

for molecular diagnostics but also empowers the ordinary people the privilege to know for sure.” In

fact, the website “guarantee(s) that all test results will be 99.9% accurate.” The website also states that

the Gender Test is “infallibly accurate in foretelling the gender of a healthy baby” and states that the

defendants “guarantee the Acu-Gender’s prediction of your baby’s gender is unmistakably correct or

we will double your money back.”

30. The Gender Test includes one directional insert, two pregnancy tests, one specimen

collection kit and one shipping envelope. The Gender Test retails for $25.00 not including tax,

shipping and handling. The cost of having the test read and interpreted is $250.00. The test is useless

without having the results read and interpreted.

31. The defendants allege that the Gender Test can detect various fetus-specific genetic

materials from maternal blood and “in combination with [ACU-GEN’s] advanced molecular platform

[ACU-GEN] is privileged to offer the most accurate and the earliest baby gender test to date.”

32. The Gender Test is sold exclusively via www.babygender.com and

www.pregnancystore.com. Both websites contain claims that the Gender Test is 99.9% accurate,

“infallible” and clearly and explicitly guarantee that if the results are not correct that the customer is

entitled to a 200% refund.

33. Plaintiff, DUFFY, purchased the Gender Test on PREGANANCYSTORE.COM. She

took the Gender Test and it predicted that she was going to have a boy.

34. DUFFY had an ultrasound and amniocentesis, which confirmed that she was having a

girl.

35. DUFFY gave birth to a girl.

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http://www.babygender.com

http://www.pregnancystore.com

http://PREGANANCYSTORE.COM



I .C

36. DUFFY called the defendants and did not get a return call for quite some time. At some

point, DUFFY had a lengthy conversation with the defendants, who assured her that she was having a

boy.

37. The incorrect gender prediction from the defendants caused DUFFY and her family

emotional distress and had a devastating effect. She and her husband were celebrating the arrival of a

son, which they hoped for in terms of family balancing. DUFFY’S husband wanted a boy very badly

and the purchase of the Gender Test and incorrect prediction was part of the reason DUFFY’S

marriage ended.

38. Plaintiff, FITZGERALD, purchased the Gender Test on or around July of 2005 on

PREGNANCYSTORE.COM. The Gender Test predicted that she was going to have a boy.

39. FITZGERALD had an ultrasound and amniocentesis, which confirmed that she was

having a girl.

40.

41.

FITZGERALD gave birth to a girl.

FITZGERALD contacted the defendants and requested a refund. It took quite a while

for FITZGERALD to even get in contact with the defendants because they were unresponsive. In

order to get a refund, the defendants required her to send them her baby’s original birth certificate. In

addition, they made her to wait until her daughter was born.

42. The incorrect gender prediction from the defendants caused FITZGERALD and her

family emotional distress and had a devastating effect. FITZGERALD decorated, bought clothes and

nursery items in preparation for a boy due to the results of the Gender Test, but had a girl. In addition,

FITZGERALD had three boys, so she struggled, needlessly, with whether to keep the fourth after the

defendants predicted another boy.





I A- I 4

43. Plaintiff, GOLD, purchased the Gender Test on or around July 6, 2005 on

PREGNANCYSTORE.COM. The Gender Test predicted that she was going to have a boy.

44. GOLD had a 3D ultrasound at twelve weeks, a 4D ultrasound at sixteen weeks and

amniocentesis on or around September 7,2005, which confirmed that she was having a girl. In regards

to the amniocentesis, GOLD’S doctors specifically dispelled any possible abnormalities due to the

color of the amniotic fluid when they stated that the amniotic fluid was a perfect color.

45.

46. After her amniocentesis, GOLD emailed the defendants, telling them that her

amniocentesis confirmed that their test result was incorrect. They responded that, while they would

appreciate seeing the amniocentesis results, only an original birth certificate would earn GOLD her

refund. GOLD responded that she would send the birth certificate, but that the amniocentesis result

should be enough to get her a refund. The defendants responded with: “We ask you to kindly reserve

any judgments until the baby is born. While ultrasound technicians may claim your baby to be of a sex

different than from what our results reveal, they do not offer the service under strict business

conditions, nor do they hold any guarantees higher than ours at the moment.”

On February 8,2006, GOLD gave birth to a girl,

47. Given the defendants never mentioned her amniocentesis results in that response,

GOLD called and spoke to WANG. WANG said he had her amniocentesis results in front of him.

WANG asked GOLD if she noticed how the amniocentesis results described the color of the amniotic

fluid, and said that it was an abnormal color and that it was concerning. WANG went on to say that

GOLD should be very concerned that her amniocentesis results were incorrect. GOLD asked, 30, you

are saying that I am not carrying a healthy XX baby?’ WANG answered positively and said GOLD

should be very concerned. WANG went on to explain how the test works, that is does not test for





r r

DNA; it tests for reactions. At the end of the conversation, WANG asked if GOLD would submit to a

retest and she agreed.

48. The defendants sent GOLD the test for the retest and she called the defendants a week

later to get the results. GOLD hoped this retest would clear everything up, but WANG said that he

could not explain it, but the retest result was a girl. WANG added that this was not a case of a

vanishing twin and that they confirmed that both blood samples came from the same person and were

not contaminated.

49,

her and her family.

50.

During their conversations, WANG never apologized to GOLD for any of the harm to

In order to get her refund, the defendants required GOLD to send them her baby’s

original birth certificate and her amniocentesis results, as well as submit to a retest. It was only after

months of worry over the varied results from the defendants and WANG’s statements that the

defendants finally issued GOLD her refund.

51. The incorrect gender prediction from the defendants and the defendants’ behavior, in

general, caused GOLD and her family emotional distress and had a devastating effect. GOLD’S first

3D scan at twelve weeks came back with the result that she was having a girl and she thought it was

wrong because of the result of the Gender Test. After the scan at sixteen weeks, the doctors said they

were 100% sure that GOLD was having a girl. After GOLD told them about the Gender Test result,

the doctors spent an extra half an hour with three additional doctors checking the scan. Between all of

this, the amniocentesis, and the subsequent conversations with WANG, GOLD was terrified that

something was wrong with her daughter. In addition, her husband was very angry. GOLD did not

even tell her husband about one of her conversations with WANG because he was so angry. Nothing




was wrong with GOLD’S baby, but the defendants caused her and her family an incredible amount of

needless anxiety, anger and fear.

52. Additionally, GOLD spent an unnecessary $40.00 in cab fare and her time and energy

running home from work to pick up the second test so that she could do the retest right away and get it

back to the defendants.

53. Plaintiff, HAYES, purchased the Gender Test on or around September 26, 2005 on the

defendants’ website. The Gender Test predicted that she was going to have a boy.

54.

55.

56.

HAYES had an ultrasound, which confirmed that she was having a girl.

On May 12,2006, HAYES gave birth to a girl.

HAYES contacted the defendants and requested a refund, In order to get a refund, the

defendants required her to send them her baby’s original birth certificate and made her to wait until her

daughter was born. In addition, they required her to have a blood test, which HAYES and her husband

felt was invasive and unnecessary. Thus, the defendants never gave HAYES a refund.

57. The incorrect gender prediction from the defendants caused HAYES and her family

emotional distress and had a devastating effect. HAYES decorated, bought clothes, toys and nursery

items and painted, among other things, in preparation for a boy, but had a girl.

58. Additionally, HAYES filled out baby books about having a boy, She also spent much

time and energy on trying to figure out the true gender of her child and trying to get her refund. As a

mother who wanted to bond with her child on every level possible, this situation was very stressful for

HAYES.

59. HAYES shared the news with friends and family who also purchased boy-specific gifts

for her. HAYES and her husband were contacted by friends and family when they saw the report on

the defendants’ product on the news and felt embarrassed and distressed, HAYES had a male name

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picked out, which included both her and her husband’s family names. Both sides of the family were

disappointed that the name would not be used.

60. For HAYES to receive the gender results of the baby growing inside of her was very

emotional for her and her husband, She began to bond on a deeper level with her child and began to

call him by his name. To have those weeks of bonding taken from her was very emotional and

stressful.

61. Plaintiff, JOHNSON, purchased the Gender Test on or around June 20, 2005 on

PREGNANCY STORE.COM. The Gender Test predicted that she was going to have a boy.

62.

63.

64.

JOHNSON had several ultrasounds, which confirmed that she was having a girl.

JOHNSON gave birth to a girl.

JOHNSON spent a great deal of time attempting to contact the defendants to get a

refund.

65. In order to get a refund, the defendants required JOHNSON to send her baby’s original

birth certificate and her daughter’s fingerprints to confirm that the baby is JOHNSON’S and is female.

In addition, the defendants made JOHNSON wait until the birth of her child before giving her a refund.

At that point, the defendants still did not give JOHNSON her refund until she wrote to the New York

Attorney General’s office who sent a letter to the defendants on JOHNSON’S behalf.

66. The incorrect gender prediction from the defendants caused JOHNSON and her family

emotional distress and had a devastating effect. JOHNSON had to spend a lot of time and energy

going through everything outlined above to get her refund from the plaintiffs. In the process, she

found out that ACU-GEN was being investigated by the New York State Department of Health for

failure to hold a permit to accept lab specimens from New York State residents. Additionally,

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http://STORE.COM



r

JOHNSON decorated the nursery and bought clothes in preparation for a boy due to the results of the

Gender Test, but had a girl. She also experienced much upset and stress.

67.

have a boy.

68.

69.

Plaintiff, RESENDE, purchased the Gender Test and it predicted that she was going to

RESENDE gave birth to a girl.

RESENDE did not feel comfortable giving the defendants her daughter’s blood sample

or fingerprints because the defendants had shown themselves to be untrustworthy and she feared what

they would do with the blood and fingerprints from her baby.

70. The defendants never honored their 200% money back guarantee. RESENDE never got

a refund.

71 The incorrect gender prediction from the defendants caused Rl5SENDE and her family

emotional distress and had a devastating effect. RESENDE already had two girls, so when she was

told by the defendants that she was having a boy, she was excited and planned for a boy. The whole

experience was difficult and upsetting for RESENDE.

72. The within matters in controversy are the subject of a class action filed in Federal Court

in Massachusetts, which has been delayed by the defendants’ repeated change of counsel and by the

defendants’ initial agreement to settle and subsequent reneging on the agreement. The six named

plaintiffs herein hereby withdraw from that case as named plaintiffs.

73. The defendants do not have legitimate evidence to support the claim that the product is

99.9% accurate. In fact, the defendants have admitted in a pending case in Federal Court that 10% or

more of the sales were reported as inaccurate results. Thus, the test results are not 99.9% accurate and

the defendants’ statements that the product is 99.9% accurate are intentional misrepresentations and

deceptive business practices. The plaintiffs relied upon the defendants’ accuracy claims and other

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claims in purchasing the Gender Test. They were dram to the product based upon the defendants’

claims that the Gender Test is “infallible” and 99.9% accurate. The defendants knew that their

accuracy claims were incorrect and unfounded. Nonetheless, they claimed that the product was 99.9%

accurate and “infallible”, which damaged the plaintiffs.

74. When the plaintiffs purchased the product, they also relied upon the defendants’

guarantee that if the test results were incorrect they would receive a 200% refund of the cost of the test

and the costs of the lab tests.

75. As a result of WANG’s misrepresentations, the plaintiffs have undergone dangerous

andor unnecessary procedures, including multiple ultrasounds, amniocentesis and chromosomal

testing. Many of these tests are not covered by medical insurance and the women paid for them out of

their own pockets. Even the expenses that are covered by insurance can have an adverse effect on their

coverage andor could cause eventual out-of-pocket expenses. In addition to the out-of-pocket

expenses and unnecessary testing, WANG caused the plaintiffs to fear for the health of their unborn

children. These damages are in addition to the disgorgement of all ill-gotten gains.

76. As a result of the defendants’ actions and omissions, including the deceptive business

practices and misrepresentations, and the refusal to respond to complaints, the plaintiffs have incurred

expenses and costs and spent money, which damages are a direct result of the defendants’ actions.

77, All six plaintiffs were harmed by the defendants’ product when the gender prediction

was incorrect. Additionally, the plaintiffs were harmed by the defendants’ misrepresentations, fraud

and violations.

78. As alleged herein, the defendants, through an advertising, promotional and marketing

campaign which was hatched, incubated, facilitated and consummated by the defendants in a uniform

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! I ‘

manner and directed toward residents of New York, have engaged in unfair, deceptive, wrongful, and

unlawful practices by misrepresenting the accuracy of the Gender Test.

79. The defendants induced the plaintiffs to purchase the product by providing an illusory

200% money back guarantee. Further, the defendants have taken steps to alter the terms of the

guarantee and make getting a refund virtually impossible. Thus, plaintiffs have suffered economic and

non-economic damages as a result of the complained-of conduct.

80. Additionally, BONELLI, MOMMY’S THINKIN’, PREGNANCY STORE and/or

PREGNANCYSTORE.COM actively advertise, market and promote the Gender Test on their website

and in numerous blogs and Internet forums. These defendants’ activities far exceed simple promotion

and dissemination of ACU-GEN’s product. BONELLI, MOMMY’S THINKIN’, PREGNANCY

STORE and/or PREGNANCY STORE.COM have made independent claims concerning the product’s

accuracy and the 200% money back guarantee. BONELLI, MOMMY’S THINKIN’, PREGNANCY

STORE and/or PREGNANCYSTORE.COM knew or should have known that the Gender Test was not

99.9% accurate or “infallible” and knew that the 200% money back guarantee was not being honored,

yet continued to advertise, market, sell and promote the product.

81. BONELLI, MOMMY’S THINKIN’, PREGNANCY STORE and/or

PREGNANCYSTORE.COM acted in conspiracy With the other defendants. As a result of the

defendants’ actions and omissions, including the deceptive business practices and misrepresentations,

the refusal to respond to complaints and the negligence, the plaintiffs have incurred expenses and costs

and spent money, which damages are a direct result of the defendants’ actions.

82. As a result of this improper and unlawful conduct, the defendants made sales to the

plaintiffs, all of which would not have otherwise been sold had they represented the product

accurately. Therefore, the defendants have been unjustly enriched at the expense of the plaintiffs.

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http://STORE.COM





V. CLAIMS

COUNT ONE VIOLATIONS OF NY GBL 349 ET SEQ.

FJEW YORK GENERAL BUSINESS LAW)

83. Plaintiffs repeat and reiterate each and every allegation contained in the paragraphs of

this Complaint marked and designated “1” through “82”, inclusive with the same force and effect as

though the same was more fully set forth at length herein.

84. The New York General Business Law (hereinafter, “GEL”) renders unlawful

“[dleceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of

any service” in New York. GEL $349.

85. At all relevant times, defendants solicited and advertised through various mediums,

offered, and provided goods and services by its acts and practices described herein, and thereby were

engaged in business, trade or commerce or in the furnishing of a service.

86. Defendants failed to alert customers that the services were not what the defendants

claimed them to be and engaged in other misrepresentations, false advertising, failures and omissions.

87.

88.

At all relevant times, plaintiffs were consumers.

Defendants’ practices, as described in detail in paragraphs 1-88 above, are unfair,

misleading and deceptive in material respects.

89. Defendants’ practices, as described in detail in paragraphs 1 - 89 above, were willful

and knowing.

90. Defendants violated GBL $349 and other applicable sections by their deceptive acts or

practices and by their unconscionable commercial practices described herein.

9 1. Defendants’ deceptive business practices as described herein, constitute consumer-

oriented conduct.

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92. The plaintiffs were caused to suffer damages as a result of defendants’ acts and

omissions, including ascertainable losses.

93. The plaintiffs are entitled to a declaratory judgment that the defendants violated the

GBL, an injunction enjoining future violations of the GBL, actual damages for violations of the GBL,

statutory damages, treble damages, an award of attorney’s fees and/or punitive damages plus costs and

disbursements and such other relief that this Court deems just and proper.

COUNT TWO UNJUST ENRICHMENT




95. Defendants received money from each plaintiff as a result of the marketing and selling

of the Baby Gender Mentor product, and that income and profit was ill-gotten and the result of

defendants’ misrepresentations and other improper actions.

96. The plaintiffs conferred a benefit on the defendants in the form of paying a price for the

product from the defendants, and the defendants have knowledge of this benefit and have voluntarily

accepted and retained the benefits conferred on them.

97. Defendants have been unjustly enriched and should not be allowed to retain the funds

from the sales to the plaintiffs. The plaintiffs are entitled to restitution of the amount by which the

defendants have been unjustly enriched as a result of their purchases and the plaintiffs seek

disgorgement of the unjust enrichment and all of the defendants’ income, profit and ill-gotten gains.

COUNT THREE

UCC ARTICLE 2-313

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1 I ? *




99. The plaintiffs are “buyers” under the UCC Article 2.

00.

01.

02.

The defendants are “sellers” under the UCC Article 2.

The Baby Gender Mentor product is “goods” under the UCC Article 2.

The defendants provided an express warranty and/or guarantee concerning the Gender

Test.

103. The Gender Test is advertised, marketed and promoted as being 99.9% accurate and

“infallible”. However, the test is not accurate or infallible as advertised.

104. The defendants’ accuracy claim and 200% guarantee is part of the basis of the bargain

and enticed the plaintiffs to purchase the product.

105. The defendants breached their express warranties to the plaintiffs because the Gender

Test is not 99.9% accurate. All six plaintiffs received an incorrect test result from the defendants. The

defendants further breached their express warranties to the plaintiffs by not honoring the 200% money

back guarantee and/or by altering the terms of the guarantee. As a result of the defendants’ breach, the

plaintiffs have sustained monetary and non-monetary damages.

COUNT FOUR UCC ARTICLE 2-314




107. The plaintiffs are “buyers” under the UCC Article 2.

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108.

109.

1 10.

The defendants are LLsellers” under the UCC Article 2.


The defendants warranted, guaranteed, advertised, marketed and promoted the Gender

Test as being 99.9% accurate and “infallible”. However, the test is not accurate or infallible as

advertised.

11 1. The purpose of the Gender Test was to predict the gender of an unborn child with

99.9% accuracy. However, all six plaintiffs received an incorrect test result from the defendants.

1 12. The defendants’ accuracy claim and 200% guarantee is part of the basis of the bargain

and enticed the plaintiffs to purchase the product.

113. The Gender Test was not fit for the ordinary purposes for which the test was to be used

and does not conform to the promises or affirmations of fact made on the package and on the websites.

Thus, the Gender Test is not merchantable.

114. The defendants breached their implied warranties to the plaintiffs because the Gender

Test is not 99.9% accurate. The defendants further breached their implied warranties to the plaintiffs

j by not honoring the 200% money back guarantee. As a result of the defendants’ breach, the plaintiffs

have sustained monetary and nonmonetary damages.

COUNT FIVE UCC ARTICLE 2-315

11 5 . Plaintiffs repeat and reiterate each and every allegation contained in the paragraphs of

this Complaint marked and designated “1” through “1 14”, inclusive with the same force and effect as

i though the same was more fully set forth at length herein.

116.

1 17.

The plaintiffs are “buyers” under the UCC Article.

The defendants are “sellers” under the UCC Article 2.

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1 18.

1 19.


The defendants warranted, guaranteed, advertised, marketed and promoted the Gender

Test as being 99.9% accurate and “infallible”. However, the test i s not accurate or infallible as

advertised.

120. The purpose of the Gender Test was to predict the gender of an unborn child with

99.9% accuracy. However, all six plaintiffs received an incorrect test result from the defendants.

121. The defendants’ accuracy claim and 200% guarantee is part of the basis of the bargain

and enticed the plaintiffs to purchase the product. The defendants knew at the time that the plaintiffs

were purchasing the product for the particular purpose of predicting the gender of their unborn children

with 99.9% accuracy.

122.

123.

Thus, the Gender Test is not fit for its particular purpose.

The defendants breached their implied warranties of fitness for a particular purpose to

the plaintiffs because the Gender Test is not 99.9% accurate. The defendants further breached their

implied warranties of fitness for a particular purpose to the plaintiffs by not honoring the guarantee.

As a result of the defendants’ breach, the plaintiffs have sustained monetary and non-monetary

damages.

COUNT SIX FRAUD




125. The defendants knowingly and intentionally made false statements of material facts to

the plaintiffs. In particular, the defendants made false statements about the terms and existence of their

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money back guarantee. Additionally, the defendants made false statements about the accuracy of the

Gender Test, claiming it to be 99.9% accurate. The defendants knew that the 200% money back

guarantee was not what they said it was. They knew that the Gender Test was not as accurate as they

proclaimed it to be. The defendants only made the false statements to the plaintiffs for the purpose of

inducing them to purchase the Gender Test.

126. The defendants intended for the plaintiffs to rely on their material misrepresentations of

fact. The sole purpose of telling the plaintiffs that there was a money back guarantee and that the test

has a 99.9% accuracy rate when, in fact, neither was true, was to induce the plaintiffs to purchase the

Gender Test.

127. The plaintiffs reasonably and justifiably relied on the defendants’ material

misrepresentations unaware of the falsity of the defendants’ statements. The plaintiffs believed the

defendants when they told the plaintiffs about the 200% refund and 99.9% accuracy. The plaintiffs

had no reason to believe that the defendants were misrepresenting facts to them. The plaintiffs

reasonably believed that they would know the gender of their unborn children with a 99.9% accuracy

rate and would get a 200% refund fairly easily if the test was not accurate.

128. The plaintiffs suffered damages as a direct result of the defendants’ misrepresentations

of fact and their reliance upon them. Had the defendants not misrepresented material facts to the

plaintiffs, the plaintiffs would not have purchased the Gender Test.

COUNT SEVEN

CIVIL CONSPIRACY 129. Plaintiffs repeat and reiterate each and every allegation contained in the paragraphs of



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1 30. The defendants knowingly andor intentionally made material misrepresentations and

promises that were false with the intent to deceive the plaintiffs and committed other tortious acts.

13 1 . The defendants acted in concert with each other, and/or pursuant to a common design,

to commit the tortious acts. BONELLI, MOMMY’S THINKIN’, PREGNANCY STORE and/or

PREGNANCYSTORE.COM gave substantial assistance and encouragement to ACU-GEN’s and

WANG’s tortious conduct. ACU-GEN and WANG gave substantial assistance and encouragement to

BONELLI, MOMMY’S THINKIN’, PREGNANCY STORE and/or PREGNANCYSTORE.COM’S

tortious conduct.

132. More specifically, the defendants warranted, guaranteed, advertised, marketed and

promoted the Gender Test as being 99.9% accurate and “infallible”. However, the test is not accurate

or “infallible” as advertised. The purpose of the Gender Test was to predict the gender of an unborn

child with 99.9% accuracy, yet all six plaintiffs received an incorrect test result from the defendants.

133. The defendants knew that the accuracy claim was not true and unsupported by any

conclusive data. Additionally, the defendants knew that, in general, they would not honor the 200%

guarantee when consumers attempted to obtain a refund.

134. The defendants all worked together, in conspiracy, to support each other’s tortious

conduct and their action caused damage to the plaintiffs.

135. The plaintiffs relied upon these material misrepresentations in deciding to purchase the

product.

136. As a result of the defendants’ tortious conduct, the plaintiffs have sustained monetary

and non-monetary damages.

COUNT EIGHT NEGLIGENCE

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138. The defendants owed a duty to the plaintiffs to accurately and truthfully market the

Gender Test and to act as a reasonable merchant under the circumstances. This duty includes a

reasonable investigation into the defendants’ accuracy claims and honoring the 200% money back

guarantee. The duty also includes not disseminating unauthorized medical advice and diagnoses. The

duty also includes the reasonable monitoring of the product, the claims about the product as they relate

to real-world results and other information that is available as well as taking necessary and reasonable

steps to make certain that consumers are not mislead.

139. The defendants breached their duty to the plaintiffs by acting in an unreasonable

manner, including claiming that the Gender Test was 99.9% accurate and “infallible” when they knew

or should have known that the test was not accurate. Additionally, they breached their duty to the

plaintiffs by claiming that they would provide a 200% money back guarantee when they h e w that

they were either not going to do so or make it incredibly difficult for the plaintiffs to get the promised

refund. They also breached their duty to the plaintiffs by providing unauthorized medical advice and

diagnoses and as otherwise described herein. The defendants were also negligent in their acts and/or

omissions as alleged herein.

140. The defendants’ negligence is the actual and proximate cause of the plaintiffs’

economic and non-economic damages.

141.

economic damages.

As a result of the defendants’ negligence, the plaintiffs sustained economic and non-

COUNT NINE

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NEGLIGENT MISREPRESENTATION




143. The defendants negligently represented to the plaintiffs that the Gender Test was 99.9%

accurate and “infallible” when the test actually was not that accurate. Additionally, the defendants

were negligent in representing to the plaintiffs that they would provide a money back guarantee but not

doing so. They also provided unauthorized medical advice and diagnoses to the plaintiffs and those

representations were negligently made by the defendants. The defendants also made other negligent

misrepresentations.

144. The defendants’ negligence is the actual and proximate cause of the plaintiffs’


145, As a result of the defendants’ negligent misrepresentations, the plaintiffs sustained


PRAYER FOR RELIEF

2.

3.

4.

5 .

WHEREFORE, plaintiffs hereby request that this Court grant the following relief:

1. an Order awarding compensatory damages to plaintiffs for all

claims in the Complaint;

treble andor punitive damages where applicable;

costs of this suit and reimbursement of expenses;

an award of attorney’s fees;

an Order requiring disgorgement of all of defendants’ ill-gotten

gains to pay restitution to plaintiffs of funds acquired by means

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6.

7.

8.

9.

of any act or practice declared by this Court to be unlawful,

fraudulent or unfair business acts or practices, a violation of laws,

statutes, or regulations, or constituting unfair competition or

false, untrue or misleading advertising;

an Order granting temporary, preliminary (andor permanent

Order providing for) equitable and injunctive relief, which may

include a total product recall, notice to consumers, changes in

advertising and packaging andor other relief;

an Order enjoining defendants from pursuing the policies, acts

and practices complained of herein;

pre- and post-judgment interest; and

such other and further relief as the Court may deem necessary or

appropriate.

Dated: June 10,2009

140 Route 17 l'%rth, Paramus, New York (201) 225-9001 Our File No.: 170.184

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ATTORNEY’S VERIFICATION

BARRY J. GAINEY, an attorney duly admitted to practice in the Courts in the State of New

York, does hereby affirm, pursuant to the penalties of perjury, that I am the attorney of record for the

plaintiffs in the captioned matter and I have the foregoing Verified Complaint and know the contents

thereof. That the same is true to the affirmant’s own knowledge, except where the allegations are made

upon information and belief, and as to those matters affirmant believe them to be true. Affirmant

further states that the reason this Affirmation is being made by the affirmant and not by the plaintiff

himself is that the plaintiff does not reside or maintain his principal residence within the County in

which the undersigned maintains his office.

Dated: June 10,2009

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Index No.:


Plaintiffs,

-against-

ACU-GEN BIOLABS, INC., C.N. WANG, MOMMY’S THINKIN’, INC., PREGNANCY STORE, PREGNANCYSTORECOM, and SHERRY BONELLI,

Defendants. X

Civil Action

SUMMONS AND VERIFIED COMPLAINT

GAINEY & McKENNA Attorney(s) for Pfaintqfs

140 Route 17 North, Suite 203 Paramus, New Jersey 07652

Our File No.: 170.184

TELEPHONE (201) 225-9001 FAX (201) 225-9002

To:

Attorney(s) for Defendant@)

Service of a copy of the within i s hereby admitted

Dated:. .. ... . . .. . .. . . . ... . .. . . .. . . .. . . . .. .. . .. .... . . . . . .. . .. . . ... ... .. ... .... ... Attorney(s) for

- . .. -. . . . . . . . . . . . . . . -. . . .. .. . -




ed on 611212009 on point newsthe gender test is “infallibly accurate in foretelling the gender of...

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