Why the fascination with Kimmer? #15

[samredman]

MissMerize queried:

So Sam, do you have a case with the others against the XYZ fuel company?

Yes, indeed, I think you would have a case in that situation... and you really have done a good job in defining the difference between what is obviously a fraudulent business practice and the Diaz situation. You are are talking about selling a physical product (the XYZ fuel)... which falls under a different legal distinction in relation to fraud than does the distribution of information (which has First Amendment protection). If you re-read my previous post where you will see the discussion about Kevin Trudeau, you can understand this difference. He was punished severely for fraudulently selling products with misleading claims, but subsequently has been able to offer medical advice without any credentials (and, as a result, has become a best-selling New York Times list author) because in his self-reinvention, he is now merely a literature researcher (like Diaz) offering the renderings of others (which may or may not be accurate). Ahhh.... freedom. It's great to live in America isn't it?

[MomToEli]

Originally Posted by jo2621

I thought it was just us "bored housewives" who have nothing else to do ........

Certain older retired guys suffer the same malady ....

[Nady]

Ah~ but Sam~ Heidi did sell a product~ she sold herself. If she had used her correct weight and medical conditions, if she had posted that she never used the diet since it was basically starvation/anorexic eating, she would never have made any money. She is guilty of fraud for the same reason that the con man is when he sells you that bridge in Brooklyn.
~~~N

[Tooter]

Originally Posted by jo2621

Can somebody tell me why I have PeeWee Herman's voice in my head screeching over and over again........

"Well, if you love her so much why don't you marry her?"

OMG, OMG!!! Dang it, Jo...you could have given me a "Warning"!! I snorted and ice water came out my nose!

[Sheridan]

Originally Posted by cleochatra

Good thing I put my hip waders on this morning. No reason in particular. Or anything.

Cleo dear, you were making a fab fashion statement!

[Tooter]

Originally Posted by Nady

Ah~ but Sam~ Heidi did sell a product~ she sold herself. If she had used her correct weight and medical conditions, if she had posted that she never used the diet since it was basically starvation/anorexic eating, she would never have made any money. She is guilty of fraud for the same reason that the con man is when he sells you that bridge in Brooklyn.
~~~N

She also sold "Lifetime" memberships based on her results (lies) and sent anyone with questions (or not) to BANNED CAMP on any whim that she had.

[mrsmenopausal]

Originally Posted by samredman

Yes, indeed, I think you would have a case in that situation... and you really have done a good job in defining the difference between what is obviously a fraudulent business practice and the Diaz situation. You are are talking about selling a physical product (the XYZ fuel)... which falls under a different legal distinction in relation to fraud than does the distribution of information (which has First Amendment protection). If you re-read my previous post where you will see the discussion about Kevin Trudeau, you can understand this difference. He was punished severely for fraudulently selling products with misleading claims, but subsequently has been able to offer medical advice without any credentials (and, as a result, has become a best-selling New York Times list author) because in his self-reinvention, he is now merely a literature researcher (like Diaz) offering the renderings of others (which may or may not be accurate). Ahhh.... freedom. It's great to live in America isn't it?

Try as you might to say otherwise, Kimkins isn't a result of literary research. Heidi Diaz did not sell information on existing diets. She created her own diet from those of others, taking away important aspects that make them healthy.

She CREATED a product without the benefit of the credentials or education to do so. Her claims were not based on previous experience, training, trials, studies, or literary research.

In order to sell her diet to the public and gain financially, she lied to the public. She fraudulently represented the results and safety of the diet with fake pictures, elaborate fictional accounts of successes that she wrote herself, and personal accounts that never happened.

Heidi Diaz charged a membership fee for lifetime access to her site and then, without warning or reimbursement of membership fees, stripped her customers of access.

Heidi Diaz committed fraud.

fraud
n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. A party who has lost something due to fraud is entitled to file a lawsuit for damages against the party acting fraudulently, and the damages may include punitive damages as a punishment or public example due to the malicious nature of the fraud. Quite often there are several persons involved in a scheme to commit fraud and each and all may be liable for the total damages. Inherent in fraud is an unjust advantage over another which injures that person or entity. It includes failing to point out a known mistake in a contract or other writing (such as a deed), or not revealing a fact which he/she has a duty to communicate, such as a survey which shows there are only 10 acres of land being purchased and not 20 as originally understood. Constructive fraud can be proved by a showing of breach of legal duty (like using the trust funds held for another in an investment in one's own business) without direct proof of fraud or fraudulent intent. Extrinsic fraud occurs when deceit is employed to keep someone from exercising a right, such as a fair trial, by hiding evidence or misleading the opposing party in a lawsuit. Since fraud is intended to employ dishonesty to deprive another of money, property or a right, it can also be a crime for which the fraudulent person(s) can be charged, tried and convicted. Borderline overreaching or taking advantage of another's naiveté involving smaller amounts is often overlooked by law enforcement, which suggests the victim seek a "civil remedy" (i.e., sue). However, increasingly fraud, which has victimized a large segment of the public (even in individually small amounts), has become the target of consumer fraud divisions in the offices of district attorneys and attorneys general.
Law.com

[jo2621]

Originally Posted by MomToEli

Certain older retired guys suffer the same malady ....

I'm thinkin' Heidi could have a new Admin out of all of this...

Someone who has nothing else to do but become increasingly apologetic for her and is clearly enamored with her.

Is adept at using search engines to bolster any argument.

Knows everything (and will tell you so) yet is an expert on nothing.

And I'm just guessing on this, has an affinity for polyester argyle socks.

Sounds like they have a lot in common.

[samredman]

Nady opined:

Ah~ but Sam~ Heidi did sell a product~ she sold herself. If she had used her correct weight and medical conditions, if she had posted that she never used the diet...

Well, Nady... you could say that Trudeau is also selling himself. But, I don't think that creative definition stretches the circumstances enough to enable the suppression of information distribution (our constitutional protection is very strong). And to say... she never used the diet? What an assertion to make... I think she has probably used that diet to repeatedly lose those pounds again and again over the years (I know I have used my dieting in that fashion). She is just too knowledgeable about all the little traps and pitfalls which beset would-be low carb dieters to have not done this herself for a long period of time (since 1972, I think she said). It reminds me of a guy I knew, who told me that quitting smoking was easy; he said, "I've quit dozens of times." Kimmer could probably say, "Yes, I used this program to lose weight. In fact, with it I've lost thousands of pounds," and that would be a dead-on accurate statement.

[Sparkys Girl]

Originally Posted by Sheridan

Nice to meet you! I think your 2 cents are priceless!

Hi Sheridan! Nice to meet you too!

[Sparkys Girl]

Originally Posted by Barbara B

Hey, there! Welcome!

Thanks Barbara! I do indeed feel welcome!

[Mayberryfan]

Anyone looking for a good cabana boy job? I know of a place where there's a few positions open.

[Nady]

Originally Posted by samredman

Nady opined:


Well, Nady... you could say that Trudeau is also selling himself. But, I don't think that creative definition stretches the circumstances enough to enable the suppression of information distribution (our constitutional protection is very strong). And to say... she never used the diet? What an assertion to make... I think she has probably used that diet to lose repeatedly lose those pounds again and again over the years (I know I have used my dieting in that fashion). She is just too knowledgeable about all the little traps and pitfalls which beset would-be low carb dieters to have not done this herself for a long period of time (since 1972, I think she said). It reminds me of a guy I knew, who told me that quitting smoking was easy; he said, "I've quit dozens of times." Kimmer could probably say, "Yes, I used this program to lose weight. In fact, with it I've lost thousands of pounds," and that would be a dead-on accurate statement.

Sorry~ you forget about the 115# 'Heidi' that she promoted as herself after a 198# weight loss that took 11 months and she maintained for 5 years. All lies. And when you knowingly use lies to separate honest people from their money, it's called fraud.

I'm surprised you don't get that~
~~~N

[2big4mysize]

Sam her family says she has maintanined her morbidly obese body weight for yrs, not yo-yoed up and down as you have, so using her kimkins plan repeatedly would seem to not be true.

[OhYeahBabe]

Originally Posted by samredman

Nady opined:


Well, Nady... you could say that Trudeau is also selling himself. But, I don't think that creative definition stretches the circumstances enough to enable the suppression of information distribution (our constitutional protection is very strong). And to say... she never used the diet? What an assertion to make... I think she has probably used that diet to repeatedly lose those pounds again and again over the years (I know I have used my dieting in that fashion). She is just too knowledgeable about all the little traps and pitfalls which beset would-be low carb dieters to have not done this herself for a long period of time (since 1972, I think she said). It reminds me of a guy I knew, who told me that quitting smoking was easy; he said, "I've quit dozens of times." Kimmer could probably say, "Yes, I used this program to lose weight. In fact, with it I've lost thousands of pounds," and that would be a dead-on accurate statement.

Her product was lifetime membership to a diet site. As for her information distribution - I guess that would be the eBook she failed to deliver.

I think it's fishing season.

[MissMerize]

Originally Posted by samredman

MissMerize queried:


Yes, indeed, I think you would have a case in that situation... and you really have done a good job in defining the difference between what is obviously a fraudulent business practice and the Diaz situation. You are are talking about selling a physical product (the XYZ fuel)... which falls under a different legal distinction in relation to fraud than does the distribution of information (which has First Amendment protection). If you re-read my previous post where you will see the discussion about Kevin Trudeau, you can understand this difference. He was punished severely for fraudulently selling products with misleading claims, but subsequently has been able to offer medical advice without any credentials (and, as a result, has become a best-selling New York Times list author) because in his self-reinvention, he is now merely a literature researcher (like Diaz) offering the renderings of others (which may or may not be accurate). Ahhh.... freedom. It's great to live in America isn't it?

The product being sold other than Heidi is the lifetime membership, personal access to her (yes, she said she would assist), the diet and food list (here is the formula for the diet - which is unbalanced)- oh, and note that the diet and portions of things have "changed" so I don't even have access to the updates, a personal journal area (which I no longer have access to) and a recipe library (which again, I even donated to and now have no access to.)

Originally Posted by samredman

Nady opined:


Well, Nady... you could say that Trudeau is also selling himself. But, I don't think that creative definition stretches the circumstances enough to enable the suppression of information distribution (our constitutional protection is very strong). And to say... she never used the diet? What an assertion to make... I think she has probably used that diet to repeatedly lose those pounds again and again over the years (I know I have used my dieting in that fashion). She is just too knowledgeable about all the little traps and pitfalls which beset would-be low carb dieters to have not done this herself for a long period of time (since 1972, I think she said). It reminds me of a guy I knew, who told me that quitting smoking was easy; he said, "I've quit dozens of times." Kimmer could probably say, "Yes, I used this program to lose weight. In fact, with it I've lost thousands of pounds," and that would be a dead-on accurate statement.

But a non accurate statement which can still be found all over the web : "I lost 198 pounds in 11 months, and kept it off for 5 years"

She has since recanted and says that she lost 100 lbs - but even her own son does not recall his mother losing any weight. And with all the pictures she is able to put up of fake people, she has not 1 picture of herself from the past 5 years to show her weight.

Anyway, I was lied to and mislead on several occasions.

[jo2621]

Re:"I'm a Kimkins Newbie" Challenge 2008! 2 Hours, 15 Minutes ago

Kimmer:

"I don't believe in starvation mode (you can read more in my blog). The whole point of gastric surgery or Lapband is to drastically cut calories. There was a woman on the Joy Luck Club (Today Show) recently who lost 125+ lbs after gastric surgery. Her surgeon was on the show with her. She is now a size 2 and described what she eats: 2-3 oz of protein first, then a small amount of veggies. If she's full after a few ounces of protein, she passes on the veggies. Her example of how many asparagus she could eat was 2-4, plus a multivitamin."

"Last night I heard part of the show "I Can Make You Thin" on TLC. He also mentioned that _meta_bolism is not rigid, it's flexible and rises and falls according to activity level and personal "build in" _meta_bolism. This is what I've said for years. When you reduce calories your _meta_bolism drops, but not drastically. When you reach goal and begin eating more, your _meta_bolism will raise, but people need to eat less at goal. This is a shocker for some people. They didn't "break" their _meta_bolism -- their body may be 50, 100, 200 pounds lighter. A 125 lb body needs much less "energy" (calories) than a 325 lb body."

"Dr. Johnny Bowden is respected in the diet industry. He wrote in an article suggesting women can lose and maintain on 1250-1400 calories a day -- men 1800."

"Don't force low calories, just eat clean ... eat according to appetite. Be sure to take a good quality multivitamin (I like Centrum). Dr. Oz on Oprah suggested splitting the multivitamin in half because our bodies don't process a mass dose of vitamins all at once."

"The "tons of energy" is ketosis. Ain't it great!"

[samredman]

About what constitutes fraud.

Under common law, three elements are required to prove fraud:

a. a material false statement made with an intent to deceive (scienter),

b. a victim’s reliance on the statement

c. damages.

In the Diaz situation... the case for fraud seems to fall apart on two points.

First, a transaction generally is "material" if prior knowledge would have changed the outcome of the buyer's decision to part with money. Being "material" in this case could be defined in terms of whether; if the "victims" had been given the real information, would there have been any difference in subscriptions. Since the time of those revelations, her actions to "correct and cure" have been significant. Now the pictures and textual copy are grossly different than the previous use of models and testimonies. So, what would define "materiality" here would be if the sales data subsequent to those changes now shows that people still respond positively to subscribing, irrespective of the information and pictures. If that is the situation, then it could be reasonably argued that the original false statements were "not material." We will have to wait to see if that position is argued in court.

Secondly, there must have been an intent to deceive. But, it could be well argued that she used the creative photos and testimonials... not to deceive, but to convey the truth. If her "intent" (a very important distinction) was instead of misrepresenting the benefits of her program, but instead to provide prospective dieters with a true picture of the results that such a program can accomplish then there was no "intent to deceive.". Here we are really talking about what was in Heidi's mind... did she believe that what she was offering was honestly a way that enabled a good weight loss program? Her historical postings show that she really was a "believer" in what she was describing and because of that ingenuousness, then the legal concept of "scienter" comes in to play. It's a legal distinction called "guilty knowledge," which often has to be proven convincingly before a judgement (or conviction) can be obtained. I think this is where Diaz is on very strong footing legally.

If you have ever been around a modeling agency or an actor's studio you will find that virtually the same severe low-carb dieting program (as she offers) is the staple for those people (who, as the late, great Charlton Heston said, "make a living with their bellies") to lose weight and keep it off. So, instead of intending to deceive... perhaps she presented that information to convey the truth (or what she believed was the truth) about this kind of dieting and what you can do with it. As is often quoted in the world of Madison Avenue advertising, "Sometimes a lie is the truth."

I think the case for fraud is going to be very hard to prove.

[Awakened]

I blogged today... a "review" of sorts ... The Open Bench
I spent my spring break talking with an old kimkins friend who made me realize that while she "knew" about the lady in the red dress fraud.. she was not at all aware of all the rest of the "fasicnation with Kimmer" stuff. So... this post is in efforts to remind all of us that there are still people who honestly don't KNOW ... we can't just hang out here and talk amongst ourselves. There are people who still need to be reached... and people that will need compassion and a shoulder to cry on when their eyes are opened to ALL that Heidi has done.
In some ways, it was easier to have our eyes opened slowly, over the months of investigating... but now, people will be learning of ALL of this at once and it's bound to be very overwhelming.

Anyway... keep up the good work.... we can never rest until she's shut down for good.

[Mayberryfan]

samIam said:

I think the case for fraud is going to be very hard to prove.

You've said as much many times. We hear you.

I think you're wrong.

Guess we'll have to let the courts decide. What a novel idea.

[Sheridan]

snipped some . . .

Originally Posted by MomToEli

I've carried E&O - I know what it is. As a computer consultant I needed it. As a loan closer I needed it. Even as a notary it was available - questionable as to whether or not I "needed" it - but at $20 (yes, twenty dollars) a year, I figured I couldn't lose. I never spent anywhere remotely close to $700 a year for large amounts of it.

She is not selling advice. She is selling a safe haven from Ducks. Hardly insurable. As a forum, where's the risk?

Here is the definition as presented by a common law dictionary website ...
"errors and omissions
n. short hand for malpractice insurance which gives physicians, attorneys, architects, accountants and other professionals coverage for claims by patients and clients for alleged professional errors and omissions which amount to negligence."

And this from another site:
"If you provide professional services that involve getting paid for advice, you should check to see whether or not provincial legislation requires you to carry errors and omissions insurance.


I'm sorry, but my bs meter is way off the scale here. And I really shouldn't care one whit about it, but for some reason this is really sticking in my craw. Blame it on menopause.

So, I'm just going to go back to doing what I do now.

You're not the only one, Mom.

Originally Posted by jeanessa

"Falsely cajoled" is hardly what happened to us. Fundamentally lied to and deceived for monetary gain further fits the bill.

Consumer fraud is serious enough that millions of dollars are spent every year fighting it...and is so important that the US government and state governments have used tax dollars to set up legal agencies and committees to combat it. Based on the perspective you've presented so far, consumer fraud is not an important enough legal offense to warrant litigation.

Lucky for us, the California government considers it - and this particular instance of it, by the way - important enough to fight that the Attorney General has opened an investigation into the Kimkins matter (and has an entire department devoted to consumer fraud, in general).

Essentially, what you are saying as well is that because we were lied to nicely and in a knowledgeable manner, that makes it better?

I'm Jeanessa by the way. Principal #1 in the Kimkins Class Action Lawsuit.

Thank you.

Originally Posted by MomToEli

Get him, Jeanessa

Sam has a reputation for stirring it up on various sites, just so you know ...

I'm utterly and completely shocked! Shocked, I tell ya'!

Originally Posted by Nady

Sorry~ you forget about the 115# 'Heidi' that she promoted as herself after a 198# weight loss that took 11 months and she maintained for 5 years. All lies. And when you knowingly use lies to to separate honest people from their money, it's called fraud.

I'm surprised you don't get that~
~~~N

Me too.