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I assumed the plaintiffs had a valid case and so, began to prepare this
webpage on the proposed lawsuit and just did a bit of research (as I
always do). But in doing the research, I found my webpage going in a
different direction than I originally thought it would because I was left
with far more questions than answers. For one, it seems the big
complaint against the Kimkins company is that the owner was still fat (or
got fat again... which would put her in 95 percent of dieters who regain
the weight according to several studies over the years!). For another, I
am beginning to wonder whether the plaintiffs might have a personal
vendetta against the owner. Stranger things have happened.
I found no specific statements about exactly HOW the 6 plaintiffs were
hurt by Kimkins is available to the casual onlooker.
When I went to the
Kimkins website, I found that they seem to offer a valid program -
something similar to SouthBeach but low gycemic and similar to Atkins but
low fat. You probably CAN lose weight via that program and while
those who know me, know that I feel low carbing is not only possibly risky
but virtually impossible to live on.
But, in viewing the lawsuit, seems their main complaint is that the
owner may be still fat (or may have regained the weight she lost which
would put her in the 95 percent of dieters who DO regain, according to
several studies).
I don't think they have a case because there is no law against a fat
person selling a diet.
Kind of interesting that none of their complaints are possible health
issues against the diet but just that the owner is fat. Sounds like
fat discrimination to moi.
This supposedly is a surveillance photo of the owner...
Note: Atkins and/or South Beach are not starvation diets - there are
complaints against low carbing but starvation is NOT one of them.
If these plaintiffs are against starvation diets, why are they NOT
suing groups like those selling the HCG diet (500 calories a day - this IS
starvation) or metafast or a myriad of others which are, according to
some, way too low calorie to be healthy?
The proposed class action suit was initiated by the attorneys and 6
individuals (who, I guess, didn't do well on the diet). I went to
view the actual documents however, they are now charging a fee to download
these.
According to the allegations, 41 testimonials were faked but this is
going to be very hard to prove, I think. Most testimonials may be folks
who regained the weight. I have always wondered why folks put so
much stock in testimonials because at best, the testimonial is only true
of that individual and not necessarily "generally true". (Why the
disclaimer, "results may vary - individual case" is often given for diet
testimonials).
I've personally known people used for Weight Loss surgery testimonials
who were very ill from the surgery.
Diet industry is ... diet industry...
They are using the internet to try and get more members of the class.
It will be interesting to see where it goes. Here is the proposed
lawsuit notice...
Proposed Notice of
Pendency of Class Action
This is NOT an official notice. This notice is proposed to the court
by plaintiffs’ counsel June 26, 2009. If you choose to duplicate
this notice on any blog or website, this notice MUST be included.
TO: EVERYONE WHO PURCHASED A MEMBERSHIP TO
KIMKINS.COM THROUGH THE KIMKINS.COM WEB SITE (www.kimkins.com) FROM
JANUARY 1, 2006 TO OCTOBER 15, 2007
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A
CLASS-ACTION LAWSUIT THAT IS CURRENTLY PENDING IN RIVERSIDE COUNTY
SUPERIOR COURT, IN RIVERSIDE, CALILFORNIA.
INTRODUCTION
1. On May 20, 2009, the Riverside County Superior Court, located in
Riverside, California, issued an order certifying this case to
proceed as a class action.
2. The plaintiffs are six individuals who bought memberships to
kimkins.com through the
www.kimkins.com
Website (www.kimkins.com) from January 1, 2006 to October 15, 2007.
The defendants are Heidi Diaz, an individual, and Kimkins (also
known as Kimkins.com), a business entity that conducts business in
Corona, California.
3. The plaintiffs contend that Diaz and Kimkins.com induced them
into buying memberships for kimkins.com through false and misleading
information provided on the Kimkins.com Web site. The plaintiffs
contend that the defendants violated California Business &
Professions Code § 17200, et seq., which authorizes courts to
provide relief from unfair, unlawful, and fraudulent business
practices. The plaintiffs also contend that Diaz and Kimkins.com
violated common law prohibitions against fraud and negligent
misrepresentation.
4. This notice provides you with information regarding the
litigation, including the plaintiffs’ claims against the defendants
and the current status of the litigation. This notice also provides
you with information regarding the court’s class-certification
order.
THE LITIGATION
The Plaintiffs’ Claims
5. This lawsuit is based on the plaintiffs’ claims that Diaz and
Kimkins used unfair, unlawful, or fraudulent business practices to
induce them into buying memberships to Kimkins.com. This lawsuit is
also based on the plaintiffs’ claims that the false and misleading
information contained on the kimkins.com Web site constituted fraud
or negligent misrepresentation by Diaz and Kimkins.
6. Here’s a list of the kinds of misconduct that the plaintiffs have
alleged:
• that Diaz and Kimkins concocted a false persona, “Kim Drake” or
“Kimmer” to sell memberships to Kimkins.com
that Diaz and Kimkins misled potential members into believing that
“Kim Drake” was real by using photos of real women and then falsely
claiming that the photos depicted “Drake”
• that Diaz and Kimkins posted lies about “Drake’s” purported weight
loss
• that Diaz and Kimkins provided false or misleading information to
Woman’s World magazine
• that Diaz and Kimkins fabricated 41 “success stories” and
published them on the Kimkins.com Website
• that Diaz and Kimkins made up celebrity endorsements
• that Diaz and Kimkins misused labels and metatags to steer
Internet traffic to the Kimkins.com Website, in violation of the law
• that Diaz and Kimkins misled potential members into believing that
they were buying lifetime memberships when, in fact, Diaz and
Kimkins.com terminated memberships at their whim
• that Diaz and Kimkins intended to mislead potential members and
assumed that potential members would rely on her misrepresentations.
The Defendants’ Position
7. Diaz and Kimkins have denied all allegations of wrongdoing and
liability, and they continue to deny that they have done anything
wrong. Diaz and Kimkins also have asserted various affirmative
defenses to the plaintiffs’ claims.
THE COURT’S CLASS-CERTIFICATION ORDER
8. In an order filed May 20, 2009, the Court granted the Plaintiffs’
Motion for Class Certification. The Court certified for class
treatment the plaintiffs’ claims for equitable relief, including
disgorgement of the subscription fees paid to Diaz and Kimkins by
the plaintiffs and the members of the class.
9. The certified class is defined as all individuals who purchased
the Kimkins.com diet membership on-line from the Kimkins.com Web
site from January 1, 2006 through October 15, 2007.
THE COURT HAS NOT EXPRESSED ANY OPINIONSREGARDING THE MERITS OF THE
PLAINTIFFS’ CLAIMS
10. The Court ordered that this notice be provided to advise class
members that this case is pending and that the Court has certified
the case to proceed as a class action. You should not consider this
notice or its mailing to be a statement by the Court that the
plaintiffs are right or that their claims will prevail.
INSTRUCTIONS TO CLASS MEMBERS
11. You do not need to do anything to remain a member of the class.
If you bought a Kimkins.com diet membership on-line from the
Kimkins.com Website from January 1, 2006 through October 15,
2007—including either of those dates—you are automatically included
in the class. Your rights will be represented by the plaintiffs and
their attorneys. You will not be personally responsible for any
attorney fees or for the any of the costs of this litigation.
OPT OUT OF CLASS ACTION LAWSUIT
12. You have the opportunity to opt out of the class action lawsuit
as detailed herein. If you incurred a personal injury as a result of
using the Kimkins.com aka Kimkins Diet, you have a right to opt out.
Notices to opt must be sent to jtiedt@tiedtlaw.com or mailed to
Tiedt & Hurd at 980 Montecito Drive, Suite 209, Corona, California
92879.
WHERE TO GO & WHO TO CONTACT SHOULD YOU NEED MORE INFORMATION
13. This notice provides only a brief summary of this litigation.
For further details, you should take one or both of the following
steps:
• Review the documents in the Court’s file for this lawsuit. Many of
these documents may be viewed or obtained on-line at the following
URL:
http://public-access.riverside.courts.ca.gov/OpenAccess/ . You
also may review the Court’s file in person by going to the Office of
the Clerk of the Court for the Riverside Superior Court, during
regular business hours. The Clerk’s office is located at 4050 Main
Street, Riverside, California 92501.
• Write a letter to the attorneys who are representing the
plaintiffs and who the Court has appointed to represent the class.
Here are their names and their contact information:
John E. Tiedt & Marc S. Hurd
Tiedt & Hurd
980 Montecito Drive, Suite 209
Corona, California 92879
Michael L. Cohen
Michael L. Cohen, a PLC
707 Wilshire Blvd., Suite 4100
Los Angeles, California 90017
Ray Moore
Moore Winter McLennan LLP
701 N. Brand Blvd., Suite 200
Glendale, California 92103-4232
If you decide to contact one of the plaintiffs’ attorneys, please do
so in writing to make it easier for them or one of their staff
members to respond; however, your letter should include both your
e-mail address and your telephone number.
There are estimated to be as many as 40,000 members in the class, so
please, DO NOT CALL THE COURT OR ATTEMPT TO CONTACT THE COURT BY
E-MAIL.
DATE: November *, 2009
Hon. * ,Presiding Judge |
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