A list of coverage I've found so far for the successful class action lawsuit against Kimkins / Heidi Diaz:
The trial starts Monday!
There's hearing today for the Kimkins class action lawsuit. The court log is hard to read:
12/21/2009 9:00 AM DEPT. 02 HEARING RE: MOTION TO/FOR COMPEL FURHTER RESPONSES OF DEFENDANT TO PLAINTIFFS REQUEST FOR PRODUCTION OF DOCUMENTS BY JEANESSA FENDERSON
12/21/2009 9:00 AM DEPT. 02 HEARING RE: MOTION TO/FOR COMPEL FURTHER RESP & COMPLIANCE OF DEF TO PLTFS REQ PROD OF DOCS & THINGS SET FOUR BY JEANESSA FENDERSON, TRISTA ESSEX, KATHLEEN ROGERS
NOTICE OF PENDENCY OF CLASS ACTION
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 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 lied about “Drake’s” purported weight loss
• that Diaz and Kimkins provided false or misleading information to Women’s World magazine
• that Diaz and Kimkins fabricated 41 “success stories” and published on the Kimkins.com Web
• 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 Web site 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 & WHOM TO CONTACTSHOULD 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 whom 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: ___________________________, 2009____________________________________
Hon. _________________________,Presiding Judge
COURTS SUBSEQUENT RULING ON 10/27/09 @ 08:30 FOR DEPARTMENT 05 10/27/2009 - 8:30 AM DEPT. 05
HONORABLE MARK E JOHNSON, PRESIDING
CLERK: M. MARTINEZ
COURT REPORTER: NONE
COURT SUBSEQUENTLY RULES:
ORDER REGARDING CLASS NOTICE: THE COURT FINDS THAT CLASS MEMBERS SHOULD BE
ALLOWED TO OPT OUT IN CONNECTION WITH THE CLASS ACTION CERTIFIED IN THE ABOVE ENTITLED ACTION.
THE CLASS ACTION WAS NOT CERTIFIED FOR THE PERSONAL INJURY CLAIMS ALLEGED BY CLASS
PLAINTIFFS. FAILURE TO ALLOW CLASS MEMBERS TO OPT OUT OF THE ACTION MAY IMPAIR OR ELIMINATE
POTENTIAL PERSONAL INJURY CLAIMS BECAUSE A JUDGMENT IN THIS ACTION COULD BAR RECOVERY IN
ANY LATER PERSONAL INJURY ACTIONS BROUGHT BY CLASS MEMBERS AGAINST DEFENDANTS. (SEE HICKS V.
KAUFMAN & BROAD (2001) 89 CAL.APP.4TH 908 924-925.)
THUS, IT APPEARS THAT THE OPPORTUNITY TO OPT OUT OF THIS CLASS ACTION IS NECESSARY. (SEE
PHILLIPS PETROLEUM CO. V. SHUFFS (1985) 472 U.S. 797, 811-812.) ACCORDINGLY, PLAINTIFFS PROPOSED
CLASS NOTICE NEEDS A STATEMENT WHICH GIVES POTENTIAL CLASS MEMBERS WHO MAY HAVE SUFFERED
PERSONAL INJURIES AN APPROPRIATE CAVEAT REGARDING POTENTIAL PERSONAL INJURY CLAIMS,
PROVIDES THE OPPORTUNITY TO OPT OUT, AND PROVIDES A PROCEDURE FOR OPTING OUT. (SEE
CHAVEZ V. NETFLIX (2008) 162 CAL.APP.4TH 43, 57.)
IN ADDITION, PLAINTIFFS SUBMISSION DOES NOT EXPLAIN WHY CLASS NOTICE CANNOT BETTER BE
PROVIDED THROUGH DEFENDANTS OWN WEBSITE TO ALL PERSONS WHO SIGNED UP THROUGH THE WEBSITE.
ACCORDINGLY, THE COURT ORDERS THAT CLASS NOTICE SHALL BE PROVIDED THROUGH DEFENDANTS WEBSITE.
THE COURT MAKES THIS DECISION BECAUSE THE LAWSUIT HAS ALREADY BEEN REFERENCED ON THE
KIMKINS WEBSITE. THE NOTICE MAY BE THROUGH A LINK ON THE WEBSITE WHICH LEADS TO THE CLASS
NOTICE.
FINALLY, ALL REFERENCES TO THE "PENDING MOTION FOR SUMMARY JUDGMENT" SHALL BE REMOVED FROM THE
CLASS NOTICE.
NOTICE TO BE GIVEN BY COURT
CLERK'S CERTIFICATE OF MAILING RE: SUBSEQUENT RULING
NOTICE SENT TO MICHAEL L COHEN A PROFESSIONALLAW CORP ON 10/27/09
NOTICE SENT TO MOORE WINTER MCLENNAN LLP ON 10/27/09
NOTICE SENT TO TIEDT & HURD ON 10/27/09
NOTICE SENT TO LAW OFFICE OF TIMOTHY P PEABODY ON 10/27/09
NOTICE SENT TO LAW OFFICES OF COTTLE & KEMP ON 10/27/09
NOTICE SENT TO COTTLE & KEEN ON 10/27/09
So in court today, the Judge approved the opt-out notice. Another step toward getting this thing wrapped up. The opt-out notice is for people who want to opt out of the class action lawsuit in case they want to sue her individually for personal injury, etc. The notice will have to be posted on the Kimkins website(!) as well as any other sites that want to post it. All good.
But it got so much better when Heidi Diaz' attorney decided to try to intimidate John in the hallway after the hearing and made a fool of himself in front of plenty of witnesses! Not just once... but twice! Apparently after the first time, he didn't cool off but decided to come back for more once they were outside! Ohhhhh how I wish I could have seen John handle him like a pro!
Here's the proof:
Say No to Kimkins: Heidi Can't Handle The Truth
Copy of court document
Looks like Heidi Diaz' loose relationship with the truth continues.
Today's hearing didn't end like we'd hoped. My understanding is that this matter has been continued to October 15. I'll post links to what happened today as soon as the facts are known.
As I'm writing this, the big court hearing is about one hour away. During the discovery phase, huge volumes of evidence of fraudulent marketing for the Kimkins diet were compiled. Heidi Diaz' lies are carefully documented, including some big fat confessions when it became impossible to maintain the lies. This evidence took a couple of years to compile, by dozens of dedicated volunteers outraged at the deception (not to mention the dangerous diet itself). This evidence was pretty hard to find, thanks to the lies about lies about lies!
So much evidence was collected that now there is a motion for summary judgment to be evaluated in court today. Basically it says that there is so much evidence that it would be best to quit belaboring this thing and just get to the conclusion right away. I do hope that the judge rules in our favor! If he doesn’t, that certainly doesn’t signify defeat. It will just mean we need to continue being patient.
So many people have been hurt by this woman, and financially she benefited significantly from her lies and bullying and 'mistakes'. From my perspective, they were not mistakes but were calculated decisions made for only her own benefit. It's time for that to stop!
Thanks to everyone involved in this fight!
Here's the first news story I've found about today's court action:
Guru Sued for Alleged Diet Scam
I don't know anything about lawsuits. If you'd asked me two years ago if we'd still be waiting, I'd have said no way since the evidence is so overwhelming! It's amazing how slowly the wheels of justice have to turn. Of course, having a defendant and her two attorneys trying their best to slow things down as much as they can, these things happen I guess!
We're reaching the point we've all been waiting for. John has filed the motion for summary judgment. You can read about it here. Apparently the carefully collected and catalogued evidence is laid out in a very thorough motion to the courts. It hasn't been posted at the court site just yet, but I can't wait to read it all! I imagine there are details I've forgotten in this long journey!
If you want to read the motion, keep an eye out at the Riverside County Court website. Select Case Name Search. Search for Diaz, Heidi. The case number is RIC483005.
The judge certified the Kimkins class for the lawsuit. (Again, thanks to the bankruptcy stall tactic.)
The next big court date is June 8. Not long to wait this time!
Thanks, John! You do such great work!
Today is the day the judge will evaluate the certification of the class again. It was certified earlier in the year but voided (that may not be the right term) by Heidi's attempt to declare bankruptcy. The bankruptcy was rejected, so we're headed back to court.
The evidence is all on our side, and John is ten times the attorney Peabody is, but it couldn't hurt to keep your fingers crossed!
What is 7 scores? Double hat trick with a cherry on top?
All seven of the motions to quash were granted today. Heidi Diaz' attempt to intimidate the Kimkins class action lawsuit plaintiffs via a counter-suit just went down in flames.
Way to go, John Tiedt!
Ya snooze, ya lose... That would make a good blog post - how getting enough quality sleep helps you lose weight! But that's not what this is about.
Last week, Heidi Diaz failed to appear for her court date regarding certification of the class for the fraudulent marketing lawsuit for the Kimkins diet website. That didn't turn out well for her. Class certified. Go John Tiedt!
She also didn't respond by the deadline to the motions regarding lack of jurisdiction over the people served in her idiotic counter-suit. John is on top of it - of course! Due to non-opposition, the motion to quash should be granted. Go John! She can't blame her attorney for this one, since she's now representing herself.
The counter-suit intimidation tactic isn't turning out very well for Heidi.
To Jeanessa:
Thank you so much for getting the ball rolling!
To the lawsuit principles:
You stood up for what you felt was right. You became targets of the counter-suit. Because you took a stand, it is likely justice will be served!
To John Tiedt:
You are a good man, doing a wonderful job fighting for what you think is right. I know you'll never be compensated adequately for how hard you are working and the personal sacrifices you are making.
To the ducks, sleuths, bloggers and cheerleaders:
Thank you for getting the word out so others might not be scammed. Thank you for sacrificing your time to dig relentlessly, gathering overwhelming evidence. Thanks for standing up to everyone who told you to shut up and that you were wrong, liars, haters, etc.
To LowCarbFriends:
Thank you for providing a place for people to gather and communicate. Without it, I'd have missed out on making a lot of new friends. And without it, it would have been so much harder for us all to work together. Thank you to the moderators for staying out of it when things got heated, and stepping in when things got too vicious.
Thank you also to all the people behind the scenes who take the time to receive, organize, catalog and fetch exactly what John needed whenever the need came up.
The case isn't over yet, but this week's class certification is a major, major milestone, and we deserve to celebrate!
PS: I hope I didn't leave anyone out!
The motion for Class Certification for the Kimkins lawsuit was filed last week. Mariasol has a great summary of the massive document here. Good job, Mariasol - and thank you!
There is a request for information for the Kimkins lawsuit on Prudentia's blog. The immediate need is for people who were banned from Kimkins to email KimkinsCase@gmail.com - even if you have already joined the lawsuit. Prudentia is collecting materials for the attorneys. Please read Prudentia's blog for information about the other materials needed for evidence.
Thank you!
OYB
Derek, you said you only posted your success story because you're proud of your weight loss, which you achieved by eating basic low carb, ignoring the Kimkins plan details, and not participating at the website. You said you don't endorse or promote Kimkins.
Derek, this ad says otherwise. Did you consent to this? Are you getting a cut of the profits? Is it OK with you that the odds are statistically zero that they will achieve the results you did? That they'll be out $80? That their money went to support the site that is facing class action lawsuit for fraudulent marketing? That they will probably quit the plan because it's 'too strict' (nutritionally bankrupt) or they'll actually DO the diet and end up with symptoms like the people on the Kimkins Survivors? And you are OK with Heidi Diaz using you to get people to join. Did you know the Better Business Bureau gave Kimkins an F rating?
If you are really only in this to inspire others and show them what is possible, then why not tell your story at any number of free weight loss websites? Why be a cover model for Kimkins? Really, I do not get it. Is there something in it for you?
Update: AffiliateScams has more on this topic.
Heidi Diaz is still banning Kimkins members!
The Kimkins lawsuit is still ongoing. Check here for important information.
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