Regulators intervene in Bostick vs. Herbalife settlement
As part of the settlement in the Bostick lawsuit against Herbalife, those represented by the class-action lawsuit had to
agree to fully release Herbalife from all claims that were or could have been raised in the complaints in this action.
What that basically meant was, after the settlement was finalized, Herbalife victims would be unable to further pursue claims against the company.
The Bostick lawsuit alleged Herbalife was a “fraudulent pyramid scheme”. The proposed settlement terms were given preliminary approval late last year, however the settlement terms have yet to be finalized.
As we slowly progress towards finalization of the settlement terms, one of the more interesting stories to emerge has been that of regulatory intervention.
Seeking to protect Herbalife victims against being barred from future regulatory action against the company, various Attorneys General met with Bosticks lawyers ‘to verify a settlement agreement will not interfere with their ongoing probes into‘ Herbalife.
Citing court filings made earlier this month, Natural Products Insider write:
An amendment to the agreement filed on March 6 with the court states, in part, that the settlement shall not “limit the right of any Class Member to provide information, file complaints or cooperate with any federal, state, or local government agency in connection with any matter related to the Released Claims, nor does it purport to limit the jurisdiction or authority of any government agency to consider or investigate such claims.”
Lawyers for the parties conferred with attorneys general in several states to ensure the settlement will not interfere with ongoing investigations or “release claims which could be prosecuted by attorneys general,” Thomas G. Foley Jr., one of the lawyers representing the plaintiffs, wrote in a March 10 court filing.
Reading between the lines, regulators are ensuring that Herbalife don’t try and slip any terms into the settlement that would bar class members from assisting regulators.
This includes further investigating any claims made in the Bostick lawsuit, be it the original lawsuit itself or claims made by individual class members (both before and after the settlement is finalized and approved).
Of particular note is the addition to the settlement terms of the SEC, FTC and New York Attorney General’s Office:
“If the SEC, the FTC or the New York and Illinois Attorneys General commence administrative or other actions, Class members are not precluded by the terms of the release from participating in any future recoveries by regulatory authorities or the States Attorneys General,” Foley added earlier in the 22-page filing.
Just last week it was revealed that, as part of an investigation into Herbalife, the New York Attorney General’s Office had subpoenaed at least one individual to appear before a grand jury.
The details of the case remain a mystery, however the specific mention of the New York Attorney General in Foley’s amendment in conjunction with “any future recoveries” is not lost on me.
This is the strongest indication yet that US regulators are expecting, at least on some level, to recover funds from Herbalife. And this of course is only going to occur with an enforcement action taken against the company.
Leading on from that of course would be regulatory legal action, but that is perhaps jumping one too many steps ahead given how little we know about the various investigations currently taking place.
Playing devil’s advocate, one could also assert that US regulators are simply covering their bases. Should they file enforcement action against Herbalife, this clarification in the Bostick settlement terms would ensure no complications regarding class members.
Personally, what with regulatory investigations being ongoing for some time now, I think regulators are probably beyond covering their bases either way.
They’ve obviously got some idea of where they’re going with their investigations, and interventions like this openly suggest they plan to take action against Herbalife at some point.
That unfortunately brings us back to the current status of the various regulatory investigating taking place, which for now remain a mystery.
It’s unlikely we’ll get any concrete clarification from any of the regulators investigating until, one way or another, they decide to make a move against Herbalife.
Regarding the Bostick settlement, as per Natural Products Insider;
The deadline for filing objections to the settlement is early next week, and a hearing for final approval is scheduled for May 11 in the Los Angeles courtroom of U.S. District Judge Beverly O’Connell.
As always, stay tuned…
attorney generals of some states including the NY AG, met the bostick lawyers, and got the settlement amended on march 6th, 2015. THIS IS BIG.
today on march 22, 2015, this news comes from natural products insider.
such a long delay for this news to surface,and that too, from a singular source, which is not exactly a news agency like bloomberg or CNBC.
strange.
NPI also reports:
TINA is basically saying the court should reject the agreement, because it has not gotten to the bottom of the pyramid allegations against herbalife.
they also allege misrepresentation of the business opportunity by herbalife, and inflated shipping and handling charges.
but now the court has been informed, and amended the settlement to reflect that the SEC/FTC/AG’s of illinois and NY, are investigating herbalife, and in case of any action and recoveries, the class members will get their due share.
since the questions of whether herbalife is a pyramid, or misrepresents or inflates shipping and handling, is being investigated by multiple agencies, the court should find no need to reject the settlement, and do its own fact finding.
hence the court MAY not admit the amicus brief of TINA, as unnecessary, at this point. we will know for sure in MAY 2015.
this is all getting very complicated now.
shit. why has NPI not named the AG’s who communicated with bostick’s lawyers.
since they were seeking amendments in a court document, their identity cannot be a ‘secret’. NPI posted this news 23 hours ago, and not a peep from any other media!
it cannot be a normal common occurrence for ‘various AG’s’ to seek amendments in a settlement. and herbalife is currently high in news quotient, so why the media wont get off their ass and Report is lost on me!
AG names people, give the Names.
New York and Illinois are named in the amendments. One would assume they at least spoke with Bostick’s lawyers.
yes, but that wont explain ‘Various’ AG’s.
i want ‘names’ to see if it is possible to do an ‘affiliation’ study.
some more information about the may 11th hearing, from KCC LLC, which is handing the claims in the herbalife/bostick settlement:
TINA has also raised questions about the high fees charged by the bostick attorneys, which is over 5 million, for a settlement that took merely 18 months to reach.
This fee seems very inflated as distributors are getting paid measly amounts of 20$ each or so.
theskeptic21 reported on march 18th, that he contacted both TINA and prof bill keep.
statement by TINA [laura smith, legal director]:
bill keep refused any comment, except to say “wait for the deposition”. so, keep expects to depose in judge o’connels court, about his declaration in the amicus brief.
of course, all this is around/before march 18th, Before the news of the attorney generals intervention, and amended settlement, came to light on march 21st.
in feb 2015, celarier of the NY post, reported that a group of 25 former herbalife distributors, under the leadership of julie contreras [LULAC], and represented by lawyer douglas brooks, were going to contest the herblaife/bostick settlement.
today, 24th march, 2015, is the last day for filing any objections in the settlement.
unless contreras is into last day filings, it appears the only contest to the settlement, is the amicus brief of TINA.
ps; total silence from the press, about the attorney generals intervention and amendment of the settlement. spooky.
herbalife has been under formal investigation by the FTC for just over an year now. it is reported/commented that these investigations are a non adversarial process, based on correction and betterment of the herbalife business opportunity.
in lieu of this, herbalife has adopted a new look website, which has a direct shopping option for retail customers. the ‘shop now’ button will ask you to register, and then connect you with the website of a herbalife distributor of ‘good standing’, from where you can shop directly.
before this, herbalife made some important changes ie, non inventory purchasing distributors, were classified as members, and direct buy-in to supervisor level was prohibited, etc.
this week herbalife is starting a massive ad campaign, it seems they are pretty confident, that investigation will not lead to a shut down.
^^ Is that copy and pasted from Herbalife PR?
What they do now is all but irrelevant to the many years Herbalife has had a lack of retail sales.
Furthermore, you can’t will retail sales into existence with website changes. If your affiliates are getting paid to recruit and build affiliate downlines who do the same, that’s what they’ll focus on.
nope. i haven’t seen any press release to this effect, yet.
patience. if the FTC is hell bent on a particular amount/percentage of retail, they will Demand It. they are the FTC, they get what they want!
@ oz
breaking news [25th march], plenty of last day filings in the bostick settlement. i spoke too soon, the world is full of last day filers! 🙂
naturalproductsinsider.com/blogs/supplement-law/2015/03/former-herbalife-distributors-call-settlement-in.aspx
yikes dont publish that, it was merely inform you, if you need to write an article on that. lots of info.
Saw that earlier today. 18 filings from affiliates (which sound copy and pasted).
Personally I hope the judge doesn’t sign off on it. The proposed compensation amount is ridiculous.
I’ll put pen to paper in May when the Judge actually makes a decision.
obviously they will be copy pasted, since they have all come together under the leadership of LULAC member julie contreras, and are represented by the same attorney douglas brooks.
chief demands:
-increase settlement amount drastically
-changes suggested by settlement, to the herbalife plan, will not protect future distributors.
another last minute entrant to the herbalife/bostick settlement party, is a non profit organisation called the National Consumers League Inc.
chief demands:
-since they’re late[!] they have asked for permission to file a brief
-if permitted to file, they demand changes like
position of the district court:
– U.S. District Judge Beverly O’Connell, has already tentatively approved the settlement, finding it ‘adequate and fair’
– three interventions may force her to revisit the settlement
– circuits courts of late, have been advising district courts, to check settlements thoroughly, before rubber stamping them.
– since the press is being toungetied about this topic, we do not know the effect of the attorney generals intervention, and the amendment they made to the settlement.
this is a blockbuster screening on may 11th, book your tickets now. don’t beg later.
In the Amway 2010 settlement (Pokorny vs Quixtar), wasn’t the final settlement increased to $155M after the original settlement was rejected by the judge.
The amount settled in the Bostick vs Herbalife case is understating the harm @ $15M compared to the Amway case to settle a case for a pyramid scheme.
the first settlement proposal between pokorny/quixtar was for a cash payment of 35 million to the class. out of this 20 million was to go to the plaintiff’s lawyer.
this high payment to the lawyer and certain other doubts that the judge had, led to the court denying/postponing the approval of the settlement.
pokorny and quixtar negotiated again and came up with a figure of 55 million, out of which 34 mil was to be paid in cash and 21 mil in the form of products. the judge approved this settlement.
the value of the ‘injunctive relief’, in this case, is calculated as 100 million, but this is non monetary in nature. it is the ‘cost’ of the changes that quixtar promised to make to its business module, in the settlement.
so, the factual amount of the settlement is 55 million, and the 100 million is just the estimated monetary value of the injunctive relief.
BTW the amount to be paid to the plaintiff’s lawyers is still not decided upon, it’s pending in court.
in the bostick/herbalife settlement, 1.5 million herbalife distributors were sent notice to file their claims.
only approx 7300 distributors have filed claims.
this poor filing of claims is being evaluated differently by the parties involved, consistent with their legal stand in this matter.
herbalife [pro settlement] said: “[it] confirmed the integrity of its business model.”
bostick lawyers [pro settlement] said:
douglas brooks lawyer for 18 herbalife distributors [anti settlement] said: the low number of claimants reflected a failure to properly reach out to members of the Latino community. He also said the claims period was extremely short and characterized the notice and claim form as “confusing.”
julie contreras of LULAC [anti settlement] said : many Latinos didn’t understand the notice of the class-action settlement, and that there should have been an outreach effort targeting the undocumented community.
i couldn’t help noticing that the bostick class action lawyers are now firmly ensconced in herbalife’s ass. 30% of the settlement in lawyers fees, has made bostick lawyers and herbalife BFF’s 🙂
over to may 11th, to see what the court does with all these arguments!!
naturalproductsinsider.com/blogs/supplement-law/2015/04/few-distributors-claim-losses-in-herbalife-pyrami.aspx
a-a-n-d believe it or not, it’s May 11th, 2015, the day for the final hearing on the herbalife/bostick settlement.
the following parties better reach the court of U.S. District Judge Beverly O’Connell, in the United States District Court for the Central District of California, by 1 pm :
– main party : herbalife
– main party : bostick
– intervenor : douglas brooks+ julie contreras + 18 miffed distributors
– intervenor : TINA + bill keep
– intervenor : National Consumers League Inc [if they were allowed to file their brief]
i think, judge o’connell will let the settlement stand, by and large. this is because:
1] she has already found the settlement ‘adequate and fair’. a third party like TINA or douglas brooks can complain, but cannot really challenge the wisdom of the judge.
2] like i said in post#2 : now the court has been informed, and amended the settlement to reflect that the SEC/FTC/AG’s of illinois and NY, are investigating herbalife, and in case of any action and recoveries, the class members will get their due share.
so, if herbalife Is Not a pyramid scheme the current settlement of herbalife/bostick, is fair and adequate.
so, if herbalife Is a pyramid scheme then the class will have equal rights to the recoveries made, and hence the current settlement of herbalife/bostick, is fair and adequate.
over to the boss of today – judge beverly o’connell !
there’s not much news about the fairness hearing held in herbalife/bostick on may 11th.
just a tidbit, that regarding TINA’s objections, the court did not ask any questions but assured them, that their brief would be considered.
the order from judge o’connell, approving or denying the settlement, or asking for changes, could take weeks or months!! drat.
So apparently the $15 million settlement was approved today, leaving Herbalife victims completely shafted.
$11.9 million divvied up between 1.9 million victims.
I WAS RIIIGHT !!! [and lovin’ it!]
we cannot say anyone got shafted via a court decision. bostick and herbalife made the settlement and the court found it fair, in it’s wisdom.
we have to accept court decisions with grace, because they’re all we have, as a justice dispensing authority.
You lose money in a questionable MLM scheme with seemingly no retail, and a Judge signs off on a settlement that will see you paid peanuts?
I accept the decision, but Herbalife’s victims got totally shafted here.
$6.26 per victim if distributed evenly (although proportionally hardly anyone filed a claim because the amount was such a joke).
Had all 1.9 million victims have filed claims, the cost of filing a claim would have probably exceed the payout.
TINA and bill keep asked the court to check the pyramid allegations.
the court said it would consider TINA’s brief.
inspite of that the court found no reason to go into the pyramiding allegations and cleared the settlement.
this is because the attorney generals of several states intervened and informed the court that herbalife was being investigated by the SEC/FTC and two state attorney generals.
Dare I Say It ? Dare I say It?
um, the intervention of the attorney generals Dampened/ made Irrelevant, any ‘concerns’ TINA raised about herbalife’s business.
the attorney general’s intervention one day, kept all protesters at bay, and herbalife got it’s way!! 🙂
I can guarantee you now the Judge hearing this case didn’t ask Herbalife for its retail revenue figures and investigate whether or not its a pyramid scheme.
If a regulatory investigation results in victims being adequately compensated, then so be it. This decision on its own merits though was a terrible outcome for Herbalife victims.
Meanwhile you’ve got Herbalife’s PR machine running with the spammy press-releases declaring this:
Right, you rip people off and then think $6.36 in settlement per victim is fair. And nobody filed a claim because the agreed upon amount was a joke!
The slime is too much!
i don’t think that will happen either. i expect a rap on the knuckles and a fine from the FTC, and herbalife will be good to go. this should happen in the next few months.
i have gone blue in the face saying this, but legally speaking, after the burnlounge appeal, there is no pyramid case to be made out against herbalife.
you may find it slimy/greasy/slithery, but it is Legal.
this is what judge o’connel says in her order:
^^^the FTC will come to the same conclusion.
and the saga continues. after LULAC it is the turn of a workers union to complain about herbalife.
the FTC should really clear the air on herbalife now, this has gone on long enough.
cnbc.com/id/102672487
Outside chance:
Not sure what’s up, thinking it’s not MLM related but you never know.
the vote is that the FTC press conference is regarding ‘lumber liquidators’ and some poisonous chinese flooring stuff etc .
but herbalife shares fell too. so who knows?
I don’t read anything into the stock market. I’ll play this one by ear (watching the announcement live).
according to the FTC press release the Virginia Attorney General, Mark Herring, will be present for the conference.
herbalife is not under investigation in virginia. but, lumber liquidators is a virginia company:
at this point, my money is All on LL.
FTC conference may 19th, 2015:
kvgo.com/ftc/Press-Conference-5-19-2015
The hell is that guy doing to that poor horse?
god knows! i’m just hoping we’ve been directed to the right site at this point!
c’mon lumber liquidators, you’re in the firing line today. not herbalife not herbalife.
Some charity guy is also talking, so I’m thinking it might have something do with Nepal donation fraud or something.
it’s about ‘consumer fraud’ oz
Charity fraud! Hah I was right.
Alright off to bed then.
yuck ‘charity fraud’!
Wooh cancer charity fraud.
Ok then I was half right.
what FTC! you kept half of wall street on its toes!!
you may get sued for stock manipulation ! 🙂
Y’know we’re gunna be having this dance everytime the FTC announce a major enforcement action… one day it’s gunna be Herbalife, but not today.
thats just your sleep deprivation talking . off with you!
ding ding breaking news! it seems the SEC has CLOSED it’s investigation into herbalife!!
further:
i hope ackman has been smart, and secretly long on herbalife stock, otherwise he should start unwrapping his coffin now.
i knew the outcome of this stupid battle from day 1, it’s a wonder that ackman with all his serious business smarts couldn’t figure this out.
found the article finally!
valuewalk, june 25, 2015:
hmm there were issues about ‘Retail Sales'[the BIG ogre] too, which were ahem!, satisfactorily answered! 🙂
now the FTC will be a good boy and follow in the SEC’s footsteps with some wrist slapping and a fine, and help me win this long standing debate, thankyou.
valuewalk.com/2015/06/herbalife-ltd-hlf-ramey/
Um, finished reviewing the filings… yeah so how did that jump to we have concluded our investigation, recommended the FTC ignore the glaring pyramid scheme you’re running and everything has been satisfactorily answered?
Read the announcement for what it is, not what you want it to be. Don’t get down on their slimy PR level. You’re better than that.
And what, Herbalife can publicly disclose SEC letters but can’t publicly disclose their (non-existent) retail sales? Yawn.
if the SEC had to take action against herbalife they would not write to them saying they have completed their review.
neither will the SEC give a clean chit/approve any business model by saying they have completed their review and are satisfied there’s no hanky panky.
they will just inform the party that their review is completed with no further comments – ‘we’re done here’.
feel free to wait for an SEC announcement, but herbalife cannot/willnot make such an important announcement without being sure. i mean, this wouldn’t be the right time to piss off the SEC, right?
Why not?
Review of filings != entire investigation until information from a source that isn’t Herbalife’s PR dept emerges.
Like I said, read it for what it is – not what you wish it was.
tim ramey came on CNBC on june 5th and hinted broadly that there was no ‘criminal investigation’ into herbalife.
oz, believe it or not, you are now witnessing the endgame playing out in a legally advised, constructed way, clearing the decks and laying the carpets for herbalife’s Win.
the info that the FTC is expected to clear herbalife with a wrist slap, has been hanging in the air for several months now. that conclusion is not arising from the announcement today that the SEC has ‘completed its review’.
No idea who Tim Ramey is. And unless he works for the SEC, don’t care.
This is all wall street speculation BS until we get information from a source other than Herbalife’s PR dept.
Ramey is an analyst who obviously has been co-opted by Herbalife to spread their propagandic message – just like Meredith Adler at Barclays.
that’s a bit silly.
neither tim ramey or meredith adler are herbalife employees. they are independent analysts running successful investment corporations. just because they are bullish on herbalife does not mean they have been co opted by herbalife!
i mean where will this end?
if it turns out that the SEC has actually ‘closed’ its herbalife investigation [as i imagine], will it mean that the SEC has been co-opted by herbalife.
there are already crazies out there, who are alleging the FTC has been ‘captured’ by herbalife.
stop and be fair!
SEC is more interested in securities fraud and stock manipulation when it comes to public company.
Prosecution of pyramid schemes has typically the bailiwick of the FTC or state attorney generals. Thus SEC letting Herbalife off with a slap on the wrist ultimately means little than PR value.
so, are you saying the SEC undertook investigation of herbalife in broad public daylight, and suddenly decided it’s interests lay elsewhere?
so, are you saying public companies can run investment frauds as long as they are not doing ‘stock frauds’?
the ‘retail question’ was a part of the SEC’s review. as far as i remember ‘retail’ has been the ‘biggest thorn’ in every herbalife critics side. the SEC has sent 6 letters to herbalife under different criteria saying it has ‘completed its review’.
the SEC and herbalife are done . its over. now just wait for the FTC.
don’t look for excuses, acceptance is more graceful.
oz is also correct, to wait for related news from non herbalife sources. fair enough. but outright dissing of herbalife’s SEC announcements is not fair. after all, they are an old established public company and not loose talkers inc.
also chang, there’s no ‘slap on the wrist’ for herbalife from the SEC. there’s no nothing. it’s just over.
How timely that Herbalife’s PR dept release inconclusive communications from the SEC, the day after news of a video in which CEO Michael Johnson outlines pyramid scheme concerns in the company.
The video is from 2005 and in it, Johnson equates being successful in Herbalife to “winning the lottery”.
nypost.com/2015/06/25/video-reveals-herbalife-boss-saw-pyramiding-signs-early-on
nypost.com/2015/06/26/herbalife-foe-ackman-demands-release-of-pyramiding-video/
Herbalife was problematic ten years ago because of the compensation plan, which encouraged affiliates to recruit rather than sell products to retail customers.
That same compensation plan is still in effect today, and Herbalife continue to refuse to make public their retail sales figures.
Like I’ve maintained, anytime you hear anything from Herbalife PR, you have to dig deeper to find out what it is they’re trying to cover up this time.
I myself would like a copy of that video to review, as dissecting it would reveal insight into Herbalife corporate’s feelings towards a lack of retail sales.
The SEC letter is non-news, serving only to inform the company the agency won’t be needing any further documentation from it.
The saga continues…
the ‘closure letters’ from the SEC to herbalife are dated may 27, 2015. when herbalife decides to talk about it, is their decision. if they ‘time it’ to reap some PR benefit, why not? they are entitled to defend themselves/ fight back with whatever weaponry they have, as long as they are not lying.
how do you know this attack and surfacing of this ‘johnson video’ was not in response to insider knowledge that SEC has ‘completed it’s review’, and to launch a fresh attack?
why do these Amazing Stories and Surfacings always come from the NY post stable with michelle cellarier going ballyhoo. the whole world and its uncle knows celarier and ackman are BFF’s.
is this the first video they have unearthed? what earth shattering effect have the previous videos caused? why has NY post not linked to the ‘video’? do they expect the public to blindly believe their ‘contortions’ and ‘morph’ifications?
anyways, at least the issues addressed by johnson in the video, that we know of, from the NYpost article are Not an issue today.
did johnson say ‘hey guys get out there and get people to sign up with 4000$’? No.
anyways, today you cannot buy a herbalife distribution for 4000$ instantly at all, so its a moot point.
did johnson say ‘hey guys get out there and sell products, people have large garages where they can keep them’? No.
anyways herbalife has a 100% return policy for one year with free shipping now, so it’s a moot point.
did johnson say ‘hey guys get out there and glibly tell the sheeple that they can become super rich with herbalife’? No.
he said it was ‘far from easy’. he said like a ‘lottery ticket’ which can mean very few people get there. he could not have meant that it was a ‘lottery ticket’in terms of ‘luck’ because he said it was ‘far from easy’.
when people speak and if we are biased, we hear what we want to hear.
Blahblahblah…
Fact: Herbalife refuse to publicly disclose their retail sales figures because there aren’t any.
Blahblahblah…
A bit silly? So because they’re not on Herbalife’s official payroll means they can’t be under a certain influence?
I haven’t said anything about the SEC nor about the FTC, to my knowledge. We do know, though, that Herbalife has spent a fortune on lobbying over the past years. That’s bound to have some sort of effect.
Anyway, anyone who looks at Herbalife’s business model can see that it facilitates recruitment over retail sales – regardless of what Ramey or Adler think of that.
what do you mean by ‘certain influence’?
we are all under ‘certain influence’.
As If we uniquely build our ‘whole thought’ history. it all comes from ‘somewhere’. except for Einstein types.
BUT ramsey and adler are not PAID employees of herbalife and have their own ‘legally independent’ views on herbalife.
i know michelle celarier has ‘certain influences’ working on her mindset. i can call her out on that, but she still has the right to speak.
also, ackman has been lobbying from here to everywhere. if he did not find enough political support, he should cry about it in private and lose lots of money. it’s not herbalife’s fault.
why prejudge?
the SEC, FTC, attorney generals, are there for a reason. patience. whats with ackman and his supporters wanting action NOW. do those ‘shorts’ hurt?
anyone who looks at Herbalife’s business model can see that products are either sold to end consumers, consumed, or returned.
it is not wasteful false economy.
the product prices are comparable to competitive products.
they do not pay for recruitment.
they have an existing and improving compliance department.
if your’e looking for perfectness, this world is not the place. here, everybody is frail and fallible, and trying to stay on the correct side of the road.
herbalife is legal, regardless of what ackman and his lapdogs keep publishing.
watch me win this or walk out of MLM forever.
The $4000 was just the tip of the iceberg. The hundreds for the monthly orders required by the uplines. and then the phone bills for all the training calls, and fees for the credit card processing, and the OBS websites.
Herbalife was just the start the people like Shawn Dahl in Candada are the real crooks. The people that made the Cds showinging the boats and million dollar life style.
When are we suppossed to get our checks?
Not sure if anything will come of it… but
naturalproductsinsider.com/blogs/supplement-law/2015/07/former-herbalife-distributors-ask-judge-to-recons.aspx
nothing will come of it.
douglas brooks should start typing out his appeal to the circuit court.
herbalife corporate refused to comment on brook’s desperate antics.
and um, brooks said judge o’connel ‘erred’? that wont go down nicely!
the california district court has dismissed [thrown out] a case against herbalife which alleged that herbalife had misrepresented itself as a legal business, when in fact it was a pyramid scheme.
the case was brought by the Oklahoma Firefighters Pension and Retirement System fund, which holds herbalife shares.
the case named herbalife top honchos as defendants ie desmond walsh, john de simone, michael johnson and richard goudis.
the judge found that:
the plaintiffs have uptil august 27th to file an amended complaint, but i suggest they save their energy.
in a former shareholder case dismissed in march, 2015, the court had found that ackman’s ‘revelations’ did not prove any fraud, as his findings were all based on publicly available information.
now the court has not found an issue with the company’s inability to track retail sales. the court said ‘concealing’ this fact did not amount to fraud, and has not ‘questioned’ the inability to track retail.
meanwhile a herbalife distrbutor/supporter has posted today on seekingalpha that:
seekingalpha.com/news/2669065-judge-dismisses-pyramid-scheme-lawsuit-against-herbalife-shares-up-4-percent
Ugh, stock market crap. So boring.
aw. here’s something interesting boss!
on july 20, 2015, herbalife filed a case in an illinois court, seeking an order for Twitter to reveal a name of a twitter account holder called @AfueraHerbalies, who has been posting anti herbalife content.
this becomes a debate about the protection of anonymous comment on the net and whether it falls under the free speech protections of the first amendment.
twitter’s policy is to protect the anonymity of user, unless ordered by a court.
the tweets by this account holder were quite abusive ie :
the American Civil Liberties Union [ACLU] says that:
my question is, if the twitter commentator is merely name calling can that be considered ‘a debate in public interest’?
lets see what the court says about this!
interesting, no ?
nypost.com/2015/07/22/herbalife-wants-twitter-to-reveal-user-behind-defamatory-tweets/
I did see that story and almost ran the headline “Herbalife goes gustapo on Twitter critic”.
I read an article going into what the Twitter account was publishing though and changed my mind. Honestly I think they kind of deserve it.
I mean if I just started making up stuff how long before I get sued into oblivion? I don’t think just because you do the same on Twitter it should be any different.
It’s one thing to kid around, but if you’re writing absolute crap with a straight-face – then you only have yourself to blame.
Suing Twitter isn’t the way to go though, that’s not going to work.
considering that herbalife is in such a delicate position right now, public perception wise, i don’t think they have gone to court with a ‘weak case’.
defamation is defamation, and neither twitter nor anybody can stand in the way of herbalife’s right to sue the defamator.
herbalife Vs twitter .
wow this should be fun.
Twitter shouldn’t be the defendants though, they aren’t the authors.
US law is pretty clear-cut on third-party content.
boss, your reviews are based on the compensation plans of MLM companies, so you are safe from this type of litigation.
right, BUT twitter protects the anonymity of the poster, they can be ordered to reveal the ‘identity’, without being held liable themselves for the ‘content’.
Which isn’t a legal problem unless a crime is being committed.
They can indeed be ordered to reveal the identity of the poster, but not as a defendant themselves (trying to hold them accountable for the content posted by others).
correct. agreed.
so, herbalife does have a case here, for twitter to reveal the identity of its account holder.
Not if they’re suing Twitter instead of John Doe.
Herbalife obviously know this, so rather this is probably “a message” type lawsuits (primarily targeting their hispanic detractors).
boss! herbalife cannot sue john doe, before First suing twitter to reveal his identity!
Why not? File a lawsuit then subpoena Twitter for the information, like the rest of the world does.
good question, and it has a terrific answer too!
herbalife has not sued twitter, but merely petitioned the illinois court for ‘discovery before suit’.
the state of illinois has a special rule called the Supreme Court Rule 224:
there is no ‘plaintiff’ or ‘defendant’ in this case. herbalife is the petitioner and twitter is the respondent.
the petitioner has to show the court:
1] why they are asking for the information and
2] what information they are seeking
3] the petitioner need not show a ‘cause of action’ to request such information, they only need to show that there may be a claim.
this petition is ‘served’ to the respondent, with a 14 day notice period.
if the respondent does not voluntarily provide the information sought, the court will pass an order “authorizing the petitioner to obtain such discovery.”
1] if respondent does not comply they may face monetary sanctions
2] respondents cannot Appeal such an order. they can refuse to comply and get charged with ‘contempt of court’, and then they can appeal the ‘contempt of court’.
isn’t rule 224 a wonderful tool to get information related to client injury? there is NO Need to file a case, just file a petition for information! and the respondent Has To Comply or Face Consequences!
in 2011, twitter had released the details of an anonymous account holder, under orders from a california court. so, herbalife Vs twitter will not be first time twitter may have to divulge ‘user details’.
the case in 2011, arose from allegations of libel in england, but was brought to california, USA:
@AfueraHerbalies has been trying to defend itself on twitter, by claiming that it is a ‘Movement’ of the hispanic people against herbalife.
but, with around 100 followers, it does Not live up to this claim.
i think, herbalife has not filed a case against this ‘john doe’, because it First wants to know the identity of this person, and then try to connect him/her to ackman, and state their case accordingly.
michelle celarier [the NY post], wilkes brent [LULAC] , sam antar [felon, and ackman supporter] etc are regular participants on this twitter handle.
i mean, obvious is obvious.
Neither Herbalife or Twitter are based in Illinois.
This is clearly court shopping, which should be ground for immediate dismissal.
More slime from Herbalife…
herbalife has an office/warehouse in chicago, illinois. this entitles it to protection under illinois law.
herbalife will also have distributors/customers in illinois, who can view the twitter posts of AfueraHerbalies. thus herbalife’s business in illinois is affected by these twitter posts, and herbalife can sue under illinois law.
Fair enough then.
What’s the bet if granted though nothing will come of it.
herbalife is in reverse attack mode now.
i think they are going for the jugular, and not playing games.
lets see!
I don’t think going after some random trolls on Twitter constitutes going for the jugular.
I’ve been beating this drum for years but I’ll say it again: If Herbalife truly wanted to go for the jugular, they’d release their retail sales figures.
Interestingly enough, the Judge in that boring Wall Street case seemed to acknowledge Herbalife can’t…
…and I’ll eat my hat if that flies with regulators investigating the scheme.
Herbalife prefer to be vague about it, probably because vagueness can be useful as a defense strategy.
It will be up to the opponent to prove that it operates illegally, whether that opponent is Bill Ackman or an agency. A case where some of the information is missing or vague will be much more difficult to fight than a case where most information is known.
So the vague argument “the low level distributors are actually mostly retail customers wanting to buy Herbalife products at a reduced price” can be more useful in a legal strategy than exact figures.
It will be up to the opponent to prove that they’re not, that they’re participants rather than consumers. So the opponent will have a really vague case to fight.
going after one random troll on twitter, will have a ‘chilling’ effect on other herbalife trolls.
twitter, FB, youtube etc will all become vigilant to posters vilifying herbalife or any other business, because having to disclose the identity of their users, is not good for their business.
you get one, you got them all.
Low level distributors in Herbalife don’t meet the legal definition of “participant in a pyramid scheme”. They don’t have the right to earn those override commissions.
The key component in a pyramid scheme is “payment for the opportunity to earn rewards based on the introduction of other participants”, also described as “rewards unrelated to sale or consumption of goods or services”.
That will NOT cover “rewards based on sale of goods or services to end users”, i.e. distributors can legally earn commission on sale without being participants.
The argument “they can make money too” will fail. It isn’t about whether they can make some money but about how they can make it.
Bill Ackman’s strategy failed there. He didn’t clearly separate between Non Sales Leaders and Sales Leaders (NSL and SL). His material showed a legal difference between those two groups, but neither he nor his advisors paid enough attention to that legal difference.
Nonsense,
Barbara Streisand made the same error in judgement.
nonsense,
the barbara striesand effect is about how trying to ‘suppress’ information, has the opposite effect of the information going ‘viral’.
herbalife has not asked twitter to remove or block the account of AfueraHerbalies. they just want his/her identity to sue for defamation and damages.
the press/blogs/individual commentators can debate this case freely, about whether herbalife has a case or not. this is a normal news story, nothing here to go viral with, as in the ‘streisand effect’.
If, in your vast experience or wildest dreams you don’t think every Facebooker, blogger, free speech advocate, anti MLMer, ex Herbalifer and member of the Latino community isn’t going to react in print, on the ‘net immediately and continuously , should Herbalife follow through with it’s attempted stifling of criticism, then you are even more silly than the wild theories you’ve continually proposed to date.
Oh, and you can add to the list the millions of ‘net users who would like nothing more than to metaphorically flip the bird to a company in which they had very little interest prior to Herbalife turning all bully boy.
Let’s hope not, because what you describe as vigilance sounds like censorship. Protecting identities is fully appropriate up to the point a court orders the release of such information… at least in my book.
By the way good work finding Supreme Court Rule 224. You are a heck of a researcher.
We have some similar rules in Norway too, but the problem is that they can’t be used in conflict with other laws (e.g. the Data Storage Directive for protection of privacy etc. will overrule that rule).
We don’t have exactly the same rule in Norway, but we probably have a relatively similar legal logic.
The Intellectual Property Act, the DMCA part of it, had to be amended to allow lawfirms representing copyright owners to collect name and address of alleged copyright infringer(s) from the ISP. And there’s still a lot of restrictions.
It’s interesting, but I don’t believe Herbalife’s strategy will work — based on the available information in that New York Post story.
“Lex specialis”
A general rule cannot be used to overrule a specialized rule, unless it clearly states that it can. And rule 224 clearly states the opposite, “The rule is not intended to modify in any way any other rights secured or responsibilities imposed by law”.
So unless Herbalife have stated some other rules in support of its claim, the lawsuit against Twitter should normally be dismissed.
Even the New York Post journalist see the lawsuit as “bizarre”.
Todd Sullivan shared some thoughts about it.
Here’s one of the reasons for why “balanced material” can be a protection against lawsuits.
let them react in print to herbalife’s bullying ways. there has been a lot of debate in the last two years about herbalife’s business and that is free speech.
let there be animated debate about herbalife’s bullying ways too. that too is free speech.
do i think people on the internet are going to show support to afueraherbalies, by copying what he does ie vilify herbalife anonymously, i don’t think that will happen, except for a few crazies.
afueraherbalies is not sharing some important information that has either voyeuristic value [barbara striesands home pictures] or of public interest [samsung trying to censor a video which shows it’s phone catching fire and melting], that people will take a shine to it, and take it viral.
i think people have a natural instinct of fairness and right and wrong, and afueraherbalies potty mouth vilification of herbalife will not go ‘viral’. besides the herbalife saga has a ‘limited audience’ of the pro and anti MLM world.
if the debate about free speech goes viral, no harm in that.
and uh, about anti MLMers and ex herbalifers and the latino community, how many have come out against herbalife in the last two years?
and duh, what afueraherbalies is doing is not criticism, it’s libel.
if i put up your details on the internet and say that you are a liar and a thief, who should be thrown out of the neighborhood, you would not defend my ‘free speech’. you may not like herbalife, but you have to afford it the same latitude.
in short, you are just plain Wrong.
and you sir, are quite plainly Right 🙂
of course twitter has the right to protect the identity of it’s users.
herbalife has asked the court for an order to release this inforation, they have not written a letter to twitter demanding the information.
there are fine lines between what constitutes free speech and libel, and i’m sure we will all have our own interpretation.
this^ is why we are so lucky to have courts or we could have world war III upon us!
yes, if the material you are publishing has some semblance of a ‘debate’ you could find protection.
using a public platform to hurl abuse, is not ‘debate’.
michelle celarier and todd sulivan are entitled to their views about herbalifes bizzareness or bullying, but you wont find them writing that ‘herbalife is a criminal/michael johnson should be jailed’.
however vociferous their support for free speech may be, they know where to draw the line themselves, which in itself is telling.
No I don’t HAVE to do anything and neither do the millions of ‘net users just waiting for the chance to poke companies like Herbalife in the eye.
There’s no need for long winded, theoretical explanations.
It’s seen as a big guy going after a little guy.
If it (Herbalifes’ court action) succeeds, it will be seen by a great majority of people as someone attempting to interfere with social media.
People will react just “because”
Once again, ask Barbara Streisand what happens.
All she did was try and suppress pictures of her residence being published on the ‘net.
let people see it however they want. ultimately they will have to come to terms with the courts view, if herbalife succeeds.
social media can be empowering, but it can be abused too.
social media is NOT some ‘flawless’ creation that has to be protected blindly.
encourage and strengthen social media, weed out the abuse.
keep it fair. stay sensible.
It isn’t called “Supreme Court Rule 224”?
It seems to be a part of Civil Procedure rules.
If Herbalife has based its lawsuit on that case, it should probably try to get some legal fundings from taxpayers.
the civil procedure rules are laid down by the supreme court of illinois.
individual rules, under the civil procedure rules are colloquially called supreme court rules. example:
iltla.com/wp-content/uploads/2014/05/Dixon-Grant_Summer-2014-FINAL.pdf
Earth to Norway
Ummn, we’re not discussing the merits or otherwise of social media or Anjalitrolls’ views of society in general.
P*** people off enough and they will react not in the manner you intend.
“THAT” is what Herbalife needs to keep in mind
so, when the california court ordered twitter to disclose the identity of mr monkey who was anonymously ridiculing the South Tyneside Council members, did the internet Explode with Public Anger?
so, when mary kay took retailmenot to court on an issue which could affect how information can be shared on the net, did the internet Explode with Public Anger?
and, the hollywood actor james woods [i likey him!], has just this week on wednesday, sued an anonymous commentator on twitter for 10 million dollars, for posting that woods was a cocaine addict, will the internet Explode with Public Anger tomorrow?
why are you singling out herbalife as the chosen receptacle for pissed off people’s angst?
is your ‘conspiratorial’ mind running ahead of Reality?
ummn, you should first understand the role of social media in the world, to determine what can be allowed and what cannot.
we have created it, and we have to manage the beast.
It starts like this …
It’s a marketing tool rather than a neutral research. He’s presenting one side of the story, the one he most easily can “sell” to a client. “What if I told you … would you be interested?” is clearly about marketing or sale.
“Empower lawyers” sounds like he’s trying to convince himself about “the new powerful tool he has found”?
And as far as I could see, he hasn’t TRIED that method himself in a real case. It looked more like a method he PLANNED to use than a method from his own experience.
“Most lawyers don’t use that tool” may be for a different reason than “because they are unfamiliar with it and know less about how it works”. It may be related to “correct legal glasses”, i.e. that Rule 224 looks less “rosy” from the perspective of most other lawyers.
I seriously doubt that the lawyer, G. Grant Dixon III, had any direct experience with Rule 224 when he wrote that pdf. He has cherry picked arguments from many different cases in support of his own “envisioned dream”, and has ignored almost all elements that didn’t support his idea.
I quoted the complete “Committee Comments” in post #96. Here’s how he interpreted those comments.
A major difference is that HIS interpretation will allow for a “fishing trip” (an extensive discovery in the initial phases) where the Committee clearly points out limitations.
He’s simply looking at his own ideas, what he has “envisioned” when he was in an altered state of mind, “Envisions Extensive Pre-suit discovery”.
I pointed out that his initial statements were marketing or sales arguments, so he may have produced the document as a method to attract new clients (it certainly didn’t have any “educational purposes”).
Its an informational article from the Illinois Trial Lawyers Association Quarterly magazine. Its professional shop talk not a marketing and sales ploy.
Your “analysis” is entirely out of context.
Out of which context?
The context will normally come from the post itself, sometimes from more than one post.
Post #108 analysed the few initial statements in the pdf, and post #109 looked at some details. It looked at how he had interpreted some sources, e.g. which parts he had ignored and which parts he had focused on.
“Marketing, sale or promotion” can be both direct or indirect, e.g. people can spend significant amounts of money, time and efforts on trying to build up an image of themselves (e.g. “internet marketer”, “six figure earner”, “success coach”, “leader”, “MLM lawyer”, any other relevant role).
That particular pdf didn’t have much legal substance, e.g. he didn’t give any logical or legal explanations for why he ignored relevant parts in the material he referred to.
Ben was right
hey norway, give G. Grant Dixon III a break, will you.
the link i provided [post#104] was just to show an example that ‘rule 224’ of the civil procedure is called ‘supreme court rule 224’.
i promise i was not selling G. Grant Dixon III’s lawyer skills to you!
if G. Grant Dixon III is upsetting you royally, i can provide another example?
He’s simply looking at his own ideas, what he has “envisioned” when he was in an altered state of mind,
You can check most of it yourself?
Anjali offered to provide another source. Here’s one:
heylroyster.com/_data/files/Articles%20Chapters/220347%20IDC%20Quarterly%20Clayton%20Hansen%20Thompson%20Appellate%20Courts%20Recognize.pdf
It has quite different conclusions, e.g. it points out that the underlying lawsuit must survive a Motion To Dismiss … Failure To State A Claim (“a section 2-615 motion to dismiss“).
I pointed out that Rule 224 couldn’t be used as G. Grant Dixon III had envisioned. If you believe otherwise then you can of course post your own conclusions?
The term “envisioned” was used quite correctly. It normally means “to picture in the mind; imagine”. It involves the visual part of the brain, while analysing something will involve the logical part. Those parts have different functions, and people should normally use both parts.
The visual part of the brain may allow people to imagine solutions to a problem, e.g. money can be seen as a solution to most day-to-day problems, and joining an income opportunity can look like a perfectly sound solution. The brain can easily imagine it as a solution.
G. Grant Dixon III primarily used that part of the brain in his arguments. The logical and legal substance was relatively low, while the main focus was on how he envisioned that Rule 224 could be used “as a tool to empower lawyers”.
I pointed out that he didn’t seem to have any personal experience with that rule from his own practice. People will normally refer to experience if they have some rather than to examples.
“Envisioned ideas” will often fail logical tests or “reality tests”, e.g. the idea that “money will be a solution” + “joining an income opportunity will lead to that solution” will most likely fail for most people.
I checked whether the source was useable. You based your initial ideas on it, e.g. in post #80.
Herbalife probably has more substance in its legal ideas. Here’s the description from one of the sources.
The requirements for a Rule 224 petition seems to be that it must be limited to discovery of identity “for the purpose of a new lawsuit”.
It can NOT be used for “fishing trip” discoveries, as a “new wonderful tool that will empower lawyers to perform discovery before they plan the lawsuit”.
The cause of the action must be known / stated with particularity. For Herbalife, that’s about a defamation lawsuit against some anonymous Twitter users based on at least four Twitter posts.
DEFAMATORY STATEMENTS?
* Trying to portray Herbalife’s management as “thieves, pill-pushing frauds and bullies” seems to be reasonable enough. 🙂
* Calling Herbalife’s products “toxic” seems to be reasonable enough.
* Stating that products “will be recalled because they are toxic” doesn’t seem to be very reasonable. People can easily believe the statement is true and based on facts, so it’s not a harmless statement.
* Accusing Herbalife’s Senior Vice President of “perpetuating a modern-day slave trade” seems to be reasonable enough.
* The use of the term “Herbaklan” doesn’t seem to be a defamatory statement.
nope, it was one of the sources i came across when reading about rule 224. post#80 was mainly about the definition of rule 224 and the procedure involved. it did not delve into ‘what a petition under rule 224 requires to survive’. thanks for bringing that information in post#115.
i did not bother to check whether G. Grant Dixon III ideas were up to the mark or not, because i was sure he is not representing herbalife in their case, so who cares how G. Grant Dixon III interprets rule 224.
to check the ‘requirements’ of rule 224, you cannot depend on one lawyers views anyway. you need to check several views and make some general observations.
i used the logical part of my brain to analytically disregard G. Grant Dixon III views, while the visual part of my brain ‘envisioned’ G. Grant Dixon III holding a placard which says – psst norway! i am not herbalife’s lawyer!
Cook County Record has some more details about the offending Twitter posts.
cookcountyrecord.com/stories/510629761-herbalife-asks-court-to-force-twitter-to-reveal-identity-of-troll-behind-defamatory-tweets
I found that source via PPblog.
That statement about withdrawal of products because of toxicity can be seen as defamatory.
I have no idea why Pamela Jones Harbour see that statement as defamatory, e.g. how it may cause loss of reputation or other damages to her or Herbalife.
Most people would probably have seen it as “colorful language”, they wouldn’t have felt it as a serious threat to reputation or social status.
“Cause of action”
As far as I can see, that’s exactly what I did?
* Post #96 cited the complete “Committee Comments”.
* Post #97 looked at New York Post.
* etc. (there’s no need to list all sources)
Then I must have misinterpreted something there?
Post #80 had the same “wonderful tool” perspective as Dixon had, so I simply guessed that you had used his pdf as a primary source. 🙂
when you say someone has ‘sold themselves for money’ it is a direct attack on their reputation. afueraherbalies stated this as ‘fact’ ie:
the presentation should have been different ie afuera should have said ‘in my opinion…’ or ‘has the FTC chair sold herself…?’
this is a very slippery slope, we have to wait for the courts interpretation.
but, the defamatory speech should be a statement of ‘fact’ and not something ‘implied’.
and saying that herbalife’s products are ‘toxic’ is also a statement of ‘fact’ which is ‘false’.
people all over the net have been bashing herbalife worse than this [check out seekingalpha], but herbalife wants to make an example of afueraherbalies, because this twitter handle was created exclusively to bash herbalife, and because they seem to think they can find connections to ackman.
i’m sure herbalife has something up their sleeve, they would not go against a particular anonymous tweeter otherwise.
let me clarify so that you need not have to play guessing games:
1] rule 224 is definitely a ‘wonderful tool’ for ‘limited’ discovery.
2] i find it wonderful even without G. Grant Dixon III’s interpretation of it.
3] it goes without saying that rule 224 is a ‘wonderful tool’ if it is used correctly, so that it survives the courts inquiry. a hammer is a ‘wonderful tool’ unless you try to tighten someone’s screws with it 🙂
It can clearly be seen as offending, but my point was about whether it was defamatory, e.g. whether it could be seen as a serious threat to her reputation or social status.
The statement seems to be too vague to be defamatory. It must be interpreted from a very specific perspective to be seen as defamatory, e.g. from some “corruption” perspective or from some “prostitution” perspective.
I can probably find a few other defamatory perspectives too.
I don’t think there’s much legal difference between plain defamatory statements and poorly disguised insinuations. But the statement must have some identifiable substance to be defamatory.
That was my impression too. And the New York Post journalist had a similar impression. It seems to be about the poster’s personal involvment more than about the seriousness of the statements.
Herbalife seems to wish to silence a critic and to set an example.
“Something up somewhere” may be correct enough. 🙂
in this context look at the recent case of james woods, against an anonymous poster on twitter.
except for the drug use allegation, the rest of the words used by abelist are ‘mockery’ and not ‘defamatory’. afueraherbalies has been posting that herbalifes products are toxic, harbor sold out , johnson is a criminal etc. these seem to be more serious statements of ‘fact’ than abelist’s trolly posts.
how come twitter suspended that ‘abelist’ account and Not ‘afueraherbalies’?
it seems that in 1985 when herbalife was sued by the california attorney general, herbalife had been attacked in the media relentlessly, much as we are seeing now.
upon settling the case with california, mark hughes hired a bigshot law firm to go after the herbalife bashers, and sue them.
it seems herbalife succeeded in silencing media criticism then, and are following the same modus operandi now.
someone using the twitter handle ‘ackmanscam’ has written:
You also said the taxpayers should pay for Herbalife’s lawsuit, that Dixon was in an “altered state,” that Supreme Court Rule 244 did not exist (which it clearly does) while contending that you understand the elements of discovery under Illinois law better than an experienced Illinois attorney who has written dozens of articles for the benefit of the members of the Trial Lawyers Association.
In between times you pepper your bloated and generally irrelevant comments with questionable sales and marketing psychology that has nothing to do with discovery under Rule 244, apparently for no other reason than you have self appointed yourself as an expert on everything.
In short this conversation exceeds stupid by infinity.
That is how I envision it.
“False light” is usually defamatory per se. The primary substance there was the allegations about Wood’s drug use, as you correctly saw it.
The rest of it was simply “mockery” (as you correctly saw it).
I identified the “toxic / products recalled” argument in post #117 as the only one with some identifiable substance. But I haven’t read the complaint yet, and I haven’t seen the context.
I have no idea. I have only looked at your description of that case.
Twitter, Facebook and other major social networks will usually have their own ethical rules (Terms and Conditions, Privacy Policy, etc.). The answer to the question can probably be found there.
Former FTC commissioner, Pamela Jones Harbour, did actually “sell out” in that context. She “joined the enemy”. 🙂
“Johnson is a criminal” is probably about the photoshopped “Media Alert” photo? “There are reports of El Chapo entering $HLF corporate offices. Wonder what he could be doing there? $$$”
patrickpretty.com/2015/07/22/developing-herbalife-v-twitter-more-latino-polarization/
Most people will probably see that the photo has been photoshopped, so one of the elements for “defamatory” is missing.
The meaning should be interpreted in context with the rest of the post (#103). We can take a look at that post?
The meaning should be interpreted in context with both posts (#108 and #109). We can take a look at those two posts?
The meaning should be interpreted in context with the rest of the post (#103). We can take a look at it?
It wasn’t about “understanding of law” there? Post #108 was about something different, e.g. it pointed out some similarities with “sales pitches”.
We can take a look at those two posts?
The rest of your post doesn’t have any identifiable elements I can make any comments on.
I have offered to take a look at posts #103, #108 and #109 = the ones I was able to identify from your description. But then you must look at the actual posts, i.e. you can’t simply refer to your own interpretations.
The relevant parts of post #103 go like this:
The whole set of rules (101-300) is identified as “Article II – Rules on Civil Proceedings in the Trial Court”, on the courts’ own website.
illinoiscourts.gov/supremecourt/Rules/Art_II/default.asp
It’s fair enough to ask questions about details like that. And I immediately accepted Anjali’s explanation as “good enough”, i.e. lawyers will probably see it as a “Supreme Court Rule”.
I have no idea about how you interpreted it.
I have offered to look into those posts, and I have already looked into one of them.
Indirect statements like “you said …”, “contending that you understand …”, etc. will be almost impossible to give any meaningful answers to, because they don’t refer to original sources.
Post #108 analysed the opening statements in G. Grant Dixon III’s pdf. I have absolutely no idea about how you interpreted that to be about some type of “legal understanding”.
He has written 3 articles for ITLA, not “dozens of articles”?
From that PDF:
Vague statements like “obtaining many records results along the way” was one of the reasons for why I identified it as “promotional material”. He seems to follow some “internet marketing ideas”.
Many internet marketers will typically try to promote themselves as “internet marketing gurus”, i.e. the main focus is on their own roles rather than on content or results.
You will find “expert articles” all around the internet, written by people who don’t have any direct experience with the topic they’re writing about.
That’s relatively close to how I see it. 🙂
I tried to return back to the main topic “Herbalife’s petition” in posts #117 and #119.
A copy of Herbalife’s petition can be found here:
documentcloud.org/documents/2174496-herbalife-twitter-petition.html
It was found via a PPblog comment:
patrickpretty.com/2015/07/22/developing-herbalife-v-twitter-more-latino-polarization/
The “toxic product” and “product recall” seem to be related to a November 2013 Colombian blog article, “Los productos de Herbalife serán retirados del mercado por tóxicos”.
Translated to “The Herbalife products will be withdrawn from the market because of their toxicity”.
Original source (Spanish):
nuevamentes.net/2013/11/los-productos-de-herbalife-seran.html
According to that source, the Colombia National Food and Drug Monitoring denied the authorization of 3 of Herbalife’s products as dietary supplements … because they had pharmaceutical effects (illegal for supplements).
Products involved:
* Bulk & Muscle (drink) → pharmaceutical effect (“Zingiber”)
* Health & Fitness (drink) → pharmaceutical effect (“Zingiber”)
* Chew Slim Gum (chewing gum) → illegal components “Zingiber”, “garcinia”
Herbalife did have some regulatory issues in multiple countries related to “toxicity of the products”.
en.wikipedia.org/wiki/Herbalife#Herbalife_and_liver_disease_inquiries
But it was later found out that the connection between Herbalife’s dietary supplements and liver toxicity was too vague / “too random”.
Yes…. three more than you.
What exactly is your point there?
He probably has more Youtube followers than I have too, and more testimonials from clients. But it will be difficult to draw any meaningful conclusion from information like that. That’s why I had to ask about your point.
so, according to columbian food and drug standards, a few herbalife products did not fall in the ‘dietary supplement’ category.
how does ^ translate to herbalife products are ‘Toxic”.
multiple investigations did not explicitly connect herbalife to liver toxicity, so on what basis can someone continue to flog that horse on social media?
afueraherbalifes can be dissatisfied with the studies, he could say – i think there should be further testing of herbalife products for toxicity. he cannot say – herbalife products are toxic. that is a false statement.
thanks!
the court found herbalife’s petition in order, and granted them permission to forward their interrogatories to twitter, to disclose the identity of the afueraherbalife handle.
if the time period for twitter to respond, or afueraherbalies to challenge the suit is 14 days, then that time is up, i think [i don’t know whether holidays are also counted or only working days]
meanwhile according to herbalife’s petition it becomes quite clear that they have some inkling of Who may be behind the afueraherbalies identity because they say:
so, herbalife want the identity and are then going to connect the person to the ackman camp to show ‘malice’.
the petition of herbalife has exhibits which include tweets by michele celarier and ‘quoth the raven’ who have been major herbalife critics and alleged to be in the ackman camp.
this will be interesting people! defamation on the net, and how the court views this will be an eyeopener. thanks herbalife and ackman, keep fighting guys, it’s fun.
it is expected that in its earnings report on august 5, 2015, herbalife will comment on the SEC investigation:
the grapevine news is that the FTC finding should happen anytime now, over the next month or so.
seeing that herbalife second quarters earning are due on the 5th august, 2015, michelle celarier has expectedly presented a ‘bomb’:
i think there have been enough rabble rousing articles from celarier, and anything she says should be taken with a spoonful of salt.
nypost.com/2015/08/04/top-herbalife-exec-leaves-embattled-company/
Has this question been addressed already?
Is it possible to defame a company whose business practices are based on lies and operates illegally?
Wouldn’t a logical defense be to make the company first prove they are legal by disclosing retail sales of 50% to non-affiliates among other things?
I see this similar to a drug dealer suing a person for tweeting…….. “Herbalife (the drug dealer here) are thieves,” “pill-pushing frauds” and “bullies” and said its products were “toxic.”
please point to a legal document which concluded that – “[herbalife’s] business practices are based on lies and operates illegally”
please point to any caselaw which has concluded that – “[ herbalife/any MLM] company first prove they are legal by disclosing retail sales of 50% to non-affiliates among other things.
now that’s going entirely too far.
if you are speaking from personal opinion, that’s okay, as long as you clarify that it is your personal opinion.
according to a post on seekingalpha, a john gavin made a ‘freedom of information application’ [FOIA] to the SEC, in december 2014, to inquire about the position of the SEC investigation into herbalife:
in early july, 2015, a jason leopold again made an FOIA for the same information and received a response to the effect:
this ^ implies to me, that the SEC investigation into herbalife is over.
if the SEC investigation is over without any finding of ‘illegality’, i don’t imagine the FTC will find any ‘illegality’ either.
duh, nothing on the earnings call about the SEC investigation.
tim ramey was on the call asking questions, but didn’t ask about it either.
so, the two FOIA requests are the best indication till now, that the herbalife/SEC investigation is done. it is a good indication but not conclusive.
according to the twitter handle afueraherbalies, there was a hearing scheduled in court, for the aug 11, 2015, where the lawyers for herbalife, withdrew their motion for the day. the next hearings are scheduled for 24th august and 17th september, 2015.
apparently, a handful of ‘victims’ of herbalife, attended the court hearing of 11th august. there are a few adults and a bunch of children. there is a video of a child [clearly under 18] beating a herbalife ‘prop’ with a stick.
does herbalife sign up people under 18? what are the kids doing in a herbalife protest and in court? hello desperate people, if you cannot find even a handful of support for your ‘movement’ against herblaife, do not fill in the gaps with kids.
by all means, save yourselves from herbalife’s ‘abuse’, but Firstly save latino kids from being used ‘politically’ in your hate games.
in other news it is ‘Strongly Rumored’ that afueraherbalies is julie contreras of LULAC, who is a staunch herbalife critic and an equally strong ackman supporter.
c’mon US press report More on This case! it’s about Free Speech and an alleged Pyramid Scheme Herbalife, you got gunpowder and a combustion friendly wick, set it on fire already!
whichever way this goes, it’s bloody interesting!!
on the 18th of august, 2015, judge beverly o’connell of the california federal court threw out the motion for reconsideration filed by 19 objectors represented by attorney douglas brooks.
the main reasons [broadly] for vacating the reconsideration motion are:
– the allegation of the objectors that the settlement notice was not properly distributed to herbalife distributors in the US and did not have the breath or reach to the latino community was untrue, because the settlement notice reached approx 93% of herbalife reps and were in english and spanish and quite comprehendable.
– the objectors have not demonstrated that the claim period was of insufficient length.
– the objectors contention that ’emailed’ settlement notices were insufficient did not have merit, because they should have protested earlier on in the case when the settlement was approved, and it was decided by the parties to use email notices. further there is precedent from the ninth circuit court which allows settlement notices to be sent via email and mail, like what was used by herbalife in this case.
– the court found that two of the class action plaintiffs [who joined bostick] ie molnar and vasko, had the standing to represent the ‘class’ ie herbalife distributors in the US.
– the court found that the Amount of the settlement was Adequate
scribd.com/doc/275203493/Final-Order-on-Bostick-Class-Action-MTR#scribd
meanwhile the afeuraherbalifes twitter page has lashed out at judge beverly o’connell:
‘court induced abuse’ is quite a strong statement indeed, i wonder how the judge at the next herbalife vs twitter hearing will digest this.
Reconsideration requests are always a longshot.
It’s a shame Herbalife screwed these people over (via their own lawyers failing them).
nope. this is a settlement ratified by a federal US court where the judge found the settlement to be fair and adequate.
unless you agree with afueraherbalies that judge o’connell ‘erred’.
and if we believe courts can err, then we must give credence to every ASD/zeek/telexfree promoter who believe the courts erred in shutting them down.
either we give the courts the last word or we let every decision be equally disputed, this has to be black or white with no grey gradation.
Yeah but like I said, it’s a shame Herbalife screwed these people over.
It might be legally fair, but they got screwed over (Herbalife has no retail activity).
good. that’s the best kind of fairness we can expect.
judge connell has not considered ‘retail or lack of it’, in her decision to approve the settlement, as it was not relevant.
the settlement as it stands is legal, fair and adequate.
btw, the FTC chairperson edith ramirez is set to retire on september 25, 2015. i’m betting the herbalife ‘decision’ will be the last big thing she does going out.
everything about ‘retail’ should be answered in that decision. i strongly feel the argument will be based, not on the quantity of retail, but who is buying the product and why.
i’m nervous, i better be right on this one.
there was a short hearing in the herbalife vs twitter case yesterday on august 24th, where twitter asked for a change in venue:
nypost.com/2015/08/24/twitter-looks-to-move-herbalife-case-out-of-chicago/
fortune magazine has published an article [mini book! actually], tracing the entire herbalife story, with emphasis on the herbalife/ackman fued over the last two years.
it is gently ‘disapproving’ of ackman and gently ‘approving’ of herbalife 🙂
i’m saying the red carpet is being laid out for an impending decision by the FTC, letting herbalife off with some fines etc:
fortune.com/2015/09/09/the-siege-of-herbalife/
I read that article earlier today over my morning Milo.
The sole take-away for me was:
Why? Because Herbalife has insigificant retail activity. I know it, you know it, they know it.
Stock market circus aside, this is key and Vemma are about to learn so the hard way.
Who’s next?
that’s just it! try reading it again with some tea, and you may see my viewpoint!
not herbalife.
who am i to disagree with mr theodore roosevelt.
it is absolutely imperative that the FTC should carry a big stick, and if they are polite, they can speak softly too.
carrying a big stick will undoubtedly take you far, but knowing when to use that stick, will take you further.
mr theodore roosevelt has missed giving guidance on the usage of the above mentioned stick, but luckily the FTC has figured it out by itself!
FTC carrying a big stick [one tight slap] = herbalife = not a pyramid scheme
FTC using a big stick [one tight shutdown] = vemma = pyramid scheme
He maybe knew that if people needed detailed instructions, then they wouldn’t have any use of it anyway.
The “How to use a stick — complete guidance” book only contains a short message, recommending the reader to stay away from sticks. “If you really need an instruction like this one, then a stick isn’t the right tool for you. Theodore Roosevelt”.
Ackman missed the real target. For his plan to work as it was intended to work, it should have resulted in an investigation and shutdown “within reasonable time” = max 1 year.
He should have focused on “How does FTC work?” and other relevant questions. He was too focused on Herbalife itself, while other parts of his plan were rather vague.
FTC will need to have a clear case before they can do anything. “Clear case” as FTC see it, not as Bill Ackman sees it. That clear case probably existed in Anthony Powell’s organization, in Shawn Dahl’s organization and maybe a few other places. Ackman should have identified those clear cases first.
The worst thing people do is when they convince themselves about something but fail to check the realities. Herbalife would have been easier to attack indirectly, in its most vulnerable parts, rather than directly from the front.
even if ackman missed the target by not shooting herbalife in the right spots, his role was pretty much over when the FTC initiated it’s inquiry into herbalife.
the FTC, not being ackman, and being an experienced regulator, will certainly know how to give herbalife a thorough checkup.
if herbalife is a pyramid scheme it will be shut down.
if herbalife is not a pyramid scheme it will be allowed to continue with some agreements on better compliance and better customer protection.
it’s not about clear case/unclear case, or ifs and buts, or the weather, it is about Fact Finding.
the primary question for the FTC [IMO] is not retail, it is whether majority participants LOSE MONEY, in the scheme.
the FTC is a regulator which is tasked with the job of rooting out unfair and deceptive trade practices, it is not tasked with ensuring retail in the marketplace.
the problems with retail are the secondary problems, which show up in an MLM which causes losses.
fresh herbalife assault by ackman’s pershing square, on the back of the FTC vemma prosecution.
on 15th september 2015, pershing square published a report comparing vemma to herbalife.
but, this report lost my interest on the very first point it makes:
if you read the FTC’s memorandum in support of the exparte TRO in vemma, they talk about vemma ‘encouraging’ recruitment over product sales to ‘ultimate users’.
nowhere has the FTC defined ultimate users to be customers outside the vemma network. they have used the term retail sales a few times, without defining it. by using both terms ‘retail’ and ‘ultimate users’ in their memorandum, the FTC has covered all bases, but not provided clarity on what they are actually asking for.
the primary FTC case against vemma revolves around the affiliate packs and the autoship, and both these factors are missing in herbalife.
but pershing square wants to gloss over these primary differences and compare marketing methods and income disclosures etc.
it’s like saying a mouse can be compared side by side to an elephant, because both are mammals.
the point is, without the ‘pyramid’ case, the rest of the ‘bad behavior’ can be set straight with warnings and fines. vemma or herbalife cannot be declared to be a pyramid scheme because of marketing methods alone. only a fact intensive study of ‘who’ were buying vemma/herbalife products and ‘why’, can make them a pyramid scheme.
ackman should give it a rest. according to a snide comment made by kevin thompson MLM attorney, on his FB page, mr bill ackman may not be well received by the FTC.
ie they wont be taking no advice from him.
factsaboutherbalife.com/media/2015/09/Vemma-Comparison-v11.pdf
this case^^ was refiled twice and dismissed by the judge both times.
the last dismissal [third time] happened over the last fortnight or so. this time the court has dismissed the case ‘With Prejudice’ meaning that it cannot be filed again.
The case was dismissed on the grounds of the plaintiffs being unable to prove intentional deception on behalf of Herbalife.
I didn’t even both covering it because it was pretty irrelevant.
Angry shareholders trying to recoup losses through pyramid lawsuits is pretty yawn. They had no problems with the pyramid scheme before they bought shares
the final order is not available yet, but the order which dismissed the initial case shows that the case was dismissed because the plaintiffs were unable to ‘prove’ that herbalife was pyramid scheme, which caused the stock to deflate, hence causing loss to the investor plaintiffs.
the court found that einhorns questions to herbalife, ackman’s presentation on herbalife, the SEC investigation, and the FTC investigation which caused the herbalife stock to fall, were merely alerts to the ‘possibility’ of fraud but not proof of fraud.
the court further noted that herbalifes disclosures theselves revealed that there was potential legal risk as
so, besides being unable to prove any intentional deception by herbalife, the plaintiffs also failed to ‘prove’ that herbalife was a pyramid scheme.
the court has not arrived at any conclusion to the effect that: investors should have known herbalife was a pyramid scheme.
actually the court has just said that mere allegations of herbalife being a pyramid scheme, does not prove that herbalife has deceived stockholders by presenting itself as a legal MLM.
the court has ‘no view’ about whether herbalife is a pyramid or not.
breaking news!
the illinois court has dismissed the herbalife case against twitter, which seeked to disclose the identity of the twitter handle afueraherbalies.
the entire order is not available but a portion of the order had been uploaded by afueraherbalies, where the court has found the tweets to be ‘protected opinion’.
the case has been dismissed ‘with prejudice’ meaning it cannot be refiled.
pbs.twimg.com/media/CUrRkENUYAA7Jpa.jpg