lyoness-logoIn late August 2014, almost a year ago now, the Australian Competition and Consumer Commission sued Lyoness for being a pyramid scheme.

To date updates on the progress of the case have been scarce, so today we’re taking a look at where things are currently at.

What we already know is that the ACCC’s case against Lyoness primarily revolves around the Accounting Units (AUs), specifically whether or not the AU component of Lyoness compensation plan constitutes a pyramid scheme.

BehindMLM reviewed Lyoness back in May 2012 and concluded that ROIs paid out once enough new AU investment was made constituted a Ponzi scheme.

To that end a Directions Hearing was held in late February, ordering requested discovery to be provided no later than the 11th of May 2015.

I’m not entirely sure why, but a second hearing pertaining to discovery was then held on April 9th.

In this order Lyoness was again ordered to hand over discovery.

Below you’ll find the items requested, with commentary included under each sub-header (final thoughts at the bottom of the article).

Establishing who the top Australian Lyoness affiliates are/were

Here we have a number of discovery items requested, which aim to establish who the top players in Lyoness’s Australian business operations are (or were if they’ve since left).

There’s a particular emphasis on business activity dating as far back as 2011, which I believe is due to Lyoness claiming they had no business operations in Australia until 2012 (I’m not 100% sure on that).

  1. documents relating to the migration of Australian residents from the MLM opportunity operated by Lyoness UK to the MLM opportunity in Australia by Lyoness Asia
  2. a “full overview” of Lyoness affiliate accounts belonging to Margot Edwina Rylah, John Raemond Neill, Teri Ann Bartolo, Gayle Vivienne Roberts, Trevor Alric Deutsher and Shannon Angela Friedman from the date each became a Member to the present date
  3. a copy of each version of any terms and conditions that have applied to the relationship between any Lyoness entity and any member of the Lyoness Loyalty Program, or the UK Lyoness Program, resident in Australia from November 2011 to date
  4. all documents relating to anyone or more of Andy Hansen, Wendy Hansen, Phil Watts or Sally Watts recruiting individuals in Australia in the period September 2011 to March 2012 as Members of the UK Lyoness Program
  5. the promotion in the period September 2011 to April 2012 to people in Australia of the Lyoness Loyalty Program (including promotion of the UK Lyoness Program) through the conduct of webinars as alleged in paragraph 45 of the Statement of Claim by anyone or more of Andy Hansen, Wendy Hansen, Phil Watts or Sally Watts
  6. any failure to comply with any restriction or requirement on one or more of Andy Hansen, Wendy Hansen, Phil Watts or Sally Watts by the UK Lyoness Program in connection with promotion in the period in or about late 2011 to early 2012 to people in Australia of the Lyoness Loyalty Program
  7. All records of recommendations of the UK Lyoness Program made by Andy Hansen, Wendy Hansen, Phil Watts or Sally Watts as alleged in paragraph 45(f) of the Defence

Point 6 is particularly interesting, as it suggests the ACCC have documented breaches of Lyoness’ affiliate Terms and Conditions.

Given Andy Hansen’s promotional activities of Lyoness in Australia at the time were public, I think the ACCC are making sure Lyoness can’t claim ignorance of Hansen’s actions (in one way or another, marketing Lyoness as an AU investment scheme).

They’re then innocently querying whether Lyoness took any appropriate action against Hansen, failing which they can be seen as endorsing his actions (ie. Lyoness can’t throw him under the bus and have to take responsibility).

Legitimacy of claimed “merchant agreements”

  1. each Merchant Agreement alleged in paragraph 9 of the Defence
  2. any Loyalty Merchant Agreement between a Lyoness Entity and Woolworths
  3. any Loyalty Merchant Agreement between a Lyoness Entity and Harvey Norman
  4. any Loyalty Merchant Agreement between a Lyoness Entity and Coles

I can almost guarantee you the ACCC would have approached the above major retailers as part of their pre-trial investigation.

Either the ACCC are fully aware the agreements represented by Lyoness in their defence are baloney, or they’re looking to compare the agreements Lyoness provide them with statements from the retailers claiming otherwise.

Also if any such agreements were fleshed out, naturally why they were discontinued will also be scrutinized.

AU investment revenue generated versus that through shopping

The pseudo-compliance component of Lyoness is that shopping generates AUs. That much is true but it’s widely believed that AU investment dwarfs any shopping activity.

To that end the ACCC have requested a ton of discovery that will clearly lay out (specific to Australia) AU revenue via shopping versus that of direct investment (downpayment).

  1. the record of allocation of Units in any Accounting Category by any Lyoness Entity for the benefit of any Australian resident when becoming a Premium Member including participants in the UK Lyoness Program
  2. records of the amount of Cash Back, Direct Friendship Bonus, Indirect Friendship Bonus and Loyalty Benefits credited to the accounts of Australian Members with Lyoness Asia as a result of making any purchases made with merchants in countries other than Australia (November 2011 to November 2014)
  3. documents which contain information about the volume of Down Payments made by Members in Australia of the Lyoness Loyalty Program (including Members of the UK Lyoness Program who or which were migrated to the Lyoness Loyalty Program operated by Lyoness Asia in Australia) in each month commencing from November 2011
  4. documents which contain information about the volume of shopping, not including Down Payments, by Members in Australia of the Lyoness Loyalty Program (including Members of the UK Lyoness Program who or which were migrated to the Lyoness Loyalty Program operated by Lyoness Asia in Australia) in each month commencing from November 2011
  5. documents which contain information about the volume of Loyalty Benefits accruing to Members in Australia of the Lyoness Loyalty Program (including Members of the UK Lyoness Program who or which were migrated to the Lyoness Loyalty Program operated by Lyoness Asia in Australia) as a result of Down Payments made by Members Down Line from the beneficiaries of those Loyalty Benefits in each month commencing from November 2011
  6. documents which contain information about the volume of Loyalty Benefits accruing to Members in Australia of the Lyoness Loyalty Program (including Members of the UK Lyoness Program who or which were migrated to the Lyoness Loyalty Program operated by Lyoness Asia in Australia) as a result of shopping, not including Down Payments, conducted by Members Down Line from the beneficiaries of those Loyalty Benefits in each month commencing from November 2011
  7. documents which contain information about the volume of Loyalty Benefits accruing to Members in Australia of the Lyoness Loyalty Program (including Members of the UK Lyoness Program who or which were migrated to the Lyoness Loyalty Program operated by Lyoness Asia in Australia) as a result of Down Payments made by Members Down Line from the beneficiaries of those Loyalty Benefits in each month commencing from November 2011
  8. documents which contain information about the volume of Loyalty Benefits accruing to Members in Australia of the Lyoness Loyalty Program (including Members of the UK Lyoness Program who or which were migrated to the Lyoness Loyalty Program operated by Lyoness Asia in Australia) as a result of shopping, not including Down Payments, conducted by Members Down Line from the beneficiaries of those Loyalty Benefits in each month commencing from November 2011

I don’t know if we’ll eventually get access to the data (via final judgement or otherwise), but it sure would make for an interesting read.

Determining who holds more AUs, affiliate investors or non-affiliate shopping members

Another aspect of the shopping network’s pseudo-compliance is to mostly ignore (not talk about) the ratio of AUs as a result of investment versus shopping.

  1. record or records of a person resident in Australia becoming a member of the Lyoness loyalty program in Australia or the UK Lyoness program on or before 25 April 2012 without that person making a down payment
  2. record or records of a person becoming a Premium Member of the Lyoness loyalty program in Australia on or after 26 April 2012 without that person making a down payment
  3. All documents relating to any person in Australia becoming a Premium Member by purchasing goods or services from Loyalty Merchants with a gross sales price of not less than $30,000 within 12 months

The above items of discovery will conclusively lay out how many AUs were generating via shopping, versus that via direct investment (downpayments).

Existing investor incentives

As Lyoness moves from country to country, investors in other countries where recruitment has stalled are given priorty in investing in new markets.

Information pertaining to Australian Lyoness affiliates participating in such activity has been requested:

  1. documents evidencing any opportunity to acquire Units in the Lyoness Accounting Program of other countries, through the making of Down Payments, as offered by Lyoness Australia to Members in Australia

Effectively Lyoness kickstart the AU ROIs by pre-loading new countries they expand into with funds from existing investors.

They then fly a few of these affiliates in, they harp on about their commissions and that’s usually enough to kickstart some leaders into spreading Lyoness locally.

When things eventually slow down there, the company moves into a new country and the process is repeated.

Thoughts

A number of items are marked “[not pressed]” on the list, supporting Lyoness having objected to the ACCC’s request of the above items.

What these items were isn’t clear, but the ACCC have decided it was a fair enough call to omit them from a revised discovery list upon challenge.

Meanwhile why they might have taken issue with the requests is because the information requested is quite specific to the AU investment scheme.

More to the point, it will likely fully expose the AU investment scheme to have been the main source of revenue from November 2011 to 2014.

It will also likely reveal that AU ROIs paid out, were by and large a result of subsequent AUs generated via direct investment as opposed to shopping activity.

None of which will aid Lyoness in defending against the case in court.

Looking at the list again, it’s pretty clear to me that the ACCC have done their homework on this one and know exactly what they’re doing. They’re asking all the right questions and focusing on exactly what needs to be focused on.

Whereas Lyoness have previously overwhelmed regulators with marketing material in an attempt to fend off regulatory litigation, thankfully that doesn’t appear to have worked with the ACCC.

This is going to trial and it’s going to get messy.

Court records indicate Lyoness provided the requested discovery on the 18th, 19th and 20th of May.

Another Directions Hearing has been scheduled for the 11th of June, in which any outstanding discovery issues (information provided not complete or not what was asked for etc.) will be addressed.

On the other hand if discovery is all good, we might then get a tentative trial date scheduled (not likely to be anytime soon, as the ACCC have to be given time to go through the requested discovery and adequately prepare the case for trial).

Stay tuned…