Why the fascination with Kimmer? #15

[tiggerr]

What I want to know from Sam..how did you digest and summarize all this since joining only a few days ago?

• I have been on LCF for 5 years
  Have encountered Heidi numerous times.
  I also have been reading this thread for almost a year.

.

I need Cliff notes sometimes to keep track.

Do you do nothing at all during the day besides composing long posts and argue?

[Locarb4me]

Originally Posted by WildAngel6

Guess so?

But when they said...




ummmm... they weren't REALLY referring to Tiedt and Hurd, were they?? Ouch, cuz if they were, them's fighting words, for sure.

Ok, sorry ~ smoothing feathers back down~ I didn't meant to get so ruffled, but really folks.... opportunistic??

I can think of a lot of words to describe the fine folks at Tiedt and Hurd, but opportunistic is NOT one of them.

John and his team are definitely NOT trying to "cash in on" this, they are here to help and are doing a fine job of it.

But then, of course, one only has look at all the hard work that John has done so far, to see that.

Ok, back to the cause at hand, I just needed to say my piece about an unnecessary derogatory comment.

Recommended Reading:

Medusa: A JURY ACQUITS ITSELF WELL...

Kimkins Press Release « Kimkins And Other Affiliate Marketing Nightmares

Hi all...hope everyone had a super weekend. We're beginning to enjoy spring--thank goodness it's finally here.

I think samredman typed in a normal post and then ran it through a Dilbert corporatespeak dialectizer. Nobody talks like that

[Locarb4me]

Originally Posted by Mayberryfan

Well, it has been several days since Bonnie Luper posted on the Tragic Chicken Diet forum, despite her promise to members to provide them one on one support. I, for one, am shocked!

But, now it seems like our favorite magic dieter is starting to ask some tough questions. Will Bonnie answer her? Well, let's just say I'm not holding my breath, even though I do look nice in blue.




Keep asking questions, Suzy. We would all like to know where "all the members are" and we've been asking Bonnie directly. You, as a paying subscriber, definitely deserve some answers or Bonnie Luper owes you a refund of your money!

Does anyone else feel very badly for Suzy? If I had a way to contact her, I would write her a friendly email and invite her hereI think she sounds like such a nice lady - someone I'd like to get to know better.

[Locarb4me]

My thinking on the whole thing is along the lines of Jo's post---


Quote:
You seem to have gone to the "if you can't dazzle them with brilliance, then baffle them with bs" school of journalism. For the most part your ramblings are hearsay and some are down right erroneous.

it's all a bunch of BS to me...

Yep ITA

[daisyrat]

Originally Posted by samredman

jeanessa cited:



Yep... there's the rub (as Shakespeare was fond of saying). This was not "real or personal property." It's information, plain and simple (internet membership distributed or by book or a pamphlet... doesn't matter). Big difference, major legal distinction. And that common law definition I provided? That will apply in California as well (just ask your attorneys) before any specific local business practice statutes. If you can't get past the definitions of either "materiality" or the "intent to deceive," or both, you simply won't even get this before a jury.

Intellectual property, Sam, counts as "real" property.

[MissMerize]

Originally Posted by 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.

I would not have joined a diet if the correct information and pictures were shown. I joined believing the picture of "Kimmer" was really her, and that she had lost 198lbs, and was healthy.

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. How does using stolen pictures reveal 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.". When I joined, there were no disclaimers to the effect that the pictures were only representations of results. 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.She also claims the stories she used were based on real stories - yet she has no text saved to back up those stories and no one has come forward in her defense to say,"oh yes, that was me." She also used family names (without their knowledge) as those people who had success.

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." And what about her claims on this site, about losing the weight? What about her claims that the after picture she is using are her? We have proof that her lies started early on - and continued on into her business. There is a way to convey the truth with out lying about yourself to do it. And what will be her excuse for creating fake people who don't exist on the site? What is the excuse for signing on to different accounts with different names? Is that not a blatant deception? As an affiliate I am sent letters from people who don't exist. They are all Heidi. I was lead to believe that someone else was handling my private information. The affiliate manager was supposedly a different person. Pure deception at it's finest.

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

She is her own worst enemy.

[dlslds]

Originally Posted by Locarb4me

Does anyone else feel very badly for Suzy? If I had a way to contact her, I would write her a friendly email and invite her hereI think she sounds like such a nice lady - someone I'd like to get to know better.

Locarb4me, she puts her email in her siggy at the chicken coop.

[tiggerr]

Originally Posted by daisyrat

Intellectual property, Sam, counts as "real" property.

Big deal IP, big deal in California.
I actualy know a lot about this aspect.

What is Intellectual Property?

Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.

[LoraJR72]

Originally Posted by 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),

Women's World June 2007 - False Testimony, using an alias, false before and after picture to sell a "service" and/or a "product".

b. a victim’s reliance on the statement

Customers lured to her site via Women's World bait. Plunking down their money based on false, misleading testimonies and pictures thereof.

c. damages.

Members being banned for questioning and/or criticizing the site or site's founder or perhaps for doing nothing at all.

Members encouraged to follow a vlcd and ridiculed or humiliated if didn't follow plan, either publicly through forums or privately through PM via Kimmer herself (a 300lb. person who indulged in Cap'n w/Diet Coke and Sugar Cookies, as seen by a Private Detective), or her sock puppets, who they themselves were and still are duped by this very skilled manipulator and snake oil salesman.

People not only lost weight, but fell ill following advice from Kimmer and or her staff, yet, had no RDN or DR. on staff for support.

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.

A crime has still been committed. Just because you clean up the blood, doesn't mean it isn't there. I can take a ride on the wayback machine and see all information and blogs. It will never go away and "You can't take that back."

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.

We will have to let the court decide.

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.".

"It's called Kimkins and was developed by me, Kimmer, in 2000 when I weighed a morbidly obese 318 pounds! In less than a year I lost 198 pounds and kept it off!

Are you getting excited yet? You should be!

Kimkins has literally changed the lives of real people just like you who were at their wits end about their weight problem."


A true picture was never given except for her "before" one. She gave false testimony in LCF and on her site. She has to prove her site was worthy. Prospective dieters do not know her personally. This must be accomplished by uploading pictures through various websites without permission. Writing down testimonies of people who may or may not have lost weight using Kimmer's technique to sell a product or service. She admits to do this on her website.

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.

Her depositions revealed her guilty knowledge.

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.

I don't think so.

[jeanessa]

Originally Posted by samredman

jeanessa cited:



Yep... there's the rub (as Shakespeare was fond of saying). This was not "real or personal property." It's information, plain and simple (internet membership distributed or by book or a pamphlet... doesn't matter). Big difference, major legal distinction. And that common law definition I provided? That will apply in California as well (just ask your attorneys) before any specific local business practice statutes. If you can't get past the definitions of either "materiality" or the "intent to deceive," or both, you simply won't even get this before a jury.

I don't know what legal defintion you are referring to, but intangible property is clearly defined in the legal definition of personal property. Whereas intellectual property is clearly defined under real property. Furthermore, the Business and Professions Code covers services as well, which Kimkins falls under very neatly.

I have already talked to John Tiedt at length about how he plans to try this case and have already stated that I believe that this case would stand up easily under the common law information that you cited above.

Additionally, I believe that the first judge would not have upheld a writ of attachment prior to certification (one of the first times in CA history, by the way) and the second judge would not have upheld that writ if this case was - as you imply - unwarranted for litigation.

You also were not privvy to information revealed by Heidi Diaz about her development of Kimkins.com in the two day-long depositions that have taken place. Luckily, I was and so are my attorney, the judge in charge of the class action certification, and the California Attorney General.

[SMP]

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. {/quote]
...
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.

Hey, what do I blame it on? Menopause is just a distant memory. There are several possibilities here -1. Insurance companies have to keep "inventing" new categories of insurance and then tout them. There are some suckers around.
2. This is a graceful way for TT to exit her ownership of a Camp that can't relieve her money miseries, and down the road, no one will be surprised when her sponsorship of the Camp ends.(2009)
3. There ARE undercurrents of which we know nothing. But TT only was let off the lawsuit , which is about fraud. Suppose someone she directly gave health advice to decides to sue her for knowing, or should have been aware, that such advice could result in mega miseries for the follower. (And TT was aware of health problems when she went into Kimkins, with her eyes wide shut!) This one makes as much sense to me as any.
But, in the grand scheme of things, very few people care. And I've reached that point. Who cares?

[Locarb4me]

Originally Posted by Amyb1569

Ummm....hello..anyone remember me? I am up cause my body clock is screwed up..So what is a girl to do while in Hawaii when everyone is sleeping? ummmmm come here and say Hello and see if anyone knew I was gone? LOL
17 hrs on a plane with 4 kids and a DH who have never flown..males a girl wanna eat and drink..lol

Hawaii huh? Wow!!! Have a wonderful time and get lots of R & R

[2big4mysize]

woo hoo Jeanessa you tell him!


hope you and Mom are doing well this week too.

[Locarb4me]

Originally Posted by daisyrat

Tortious interference refers to the plaintiff, not the defendant. That aside, presenting the truth about Kimkins and its founder is in no way tortious interference. Your statement about the attorneys in this case, on the other hand, borders on libel. Unless you have some proof of their motives, you really can't state that as fact, can you?

<snipped>

Well, I must admit that's a really good apologia for trolling However, open discourse is a valuable thing. Probably 90% of people here are in agreement about the major points of this topic, but agreement does not automatically equal 'right.' For that reason, I think it's a very good thing that we have these debates.

Lisa, I'm so glad you posted. You did a great job!!

[jeanessa]

Originally Posted by 2big4mysize

woo hoo Jeanessa you tell him!


hope you and Mom are doing well this week too.

Mom and me were in the ER most of Friday and Saturday and then I think I slept for about two days straight...but she is good, nothing serious and I am learning to crochet. I feel very grown up!

[Barbara B]

Originally Posted by Locarb4me

Does anyone else feel very badly for Suzy? If I had a way to contact her, I would write her a friendly email and invite her hereI think she sounds like such a nice lady - someone I'd like to get to know better.

I just sent her a PM, telling her about LCF.

[mrsmenopausal]

Originally Posted by jeanessa

Mom and me were in the ER most of Friday and Saturday and then I think I slept for about two days straight...but she is good, nothing serious and I am learning to crochet. I feel very grown up!

I'm sorry to hear you had to go to the ER. You're both in my prayers.
Crocheting is a great stress reliever and after a while you can do it without even giving it much thought. Great way to keep your hands busy and let your mind relax.

[samredman]

daisyrat expounded:

Intellectual property, Sam, counts as "real" property.

Yes, intellectual property would be real property, if anyone were to be selling the business rights to it. For example, if I sold you the code on a software program I wrote. Or, if Heidi sold you the web-pages code and design style and the material of her website for you to own and distribute... then you would have a sale of intellectual property (counting as "real"). But, no... Heidi was simply a publisher of "First Amendment protected" information. This is looking more and more like a spurious action. Ain't our freedoms grand? Like I said before... it's great to live in America.

[rebel]

Originally Posted by jeanessa

Mom and me were in the ER most of Friday and Saturday and then I think I slept for about two days straight...but she is good, nothing serious and I am learning to crochet. I feel very grown up!

Jeanessa - I'm glad to hear that it wasn't anything serious with your mother. Speaking of crochet, my mother made many bedspreads for me, the Lord's Prayer, and my wedding dress. She used the tiny thread that's almost like sewing thread.

[Nady]

Originally Posted by samredman

daisyrat expounded:



Yes, intellectual property would be real property, if anyone were to be selling the business rights to it. For example, if I sold you the code on a software program I wrote. Or, if Heidi sold you the web-pages code and design style and the material of her website for you to own and distribute... then you would have a sale of intellectual property (counting as "real"). But, no... Heidi was simply a publisher of "First Amendment protected" information. This is looking more and more like a spurious action. Ain't our freedoms grand? Like I said before... it's great to live in America.

I hope Heidi's attorney uses your arguments in court~ You're not really hearing any of this are you? Heidi admitted, in the depositions, to many of the points you think still need to be proven. When you have all the facts of this case, then you can make your opening arguments. Otherwise, now, you sound like just another thick headed man that only hears what he wants to hear. Sorry~
~~~N

[jeanessa]

Originally Posted by rebel

Jeanessa - I'm glad to hear that it wasn't anything serious with your mother. Speaking of crochet, my mother made many bedspreads for me, the Lord's Prayer, and my wedding dress. She used the tiny thread that's almost like sewing thread.

Whew, your momma was good, girl! I can't imagine making a wedding dress. I use the worsted weight thread and my little pudgy fingers are still trying to get into the groove, but I love it so far!

[2big4mysize]

glad to hear you and mom are doing okay. I understand that post ER need to sleep for days.