More on Herbalife, Bill Ackman, and Law Enforcement

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As we patiently wait for Herbalife’s “analyst and investor meeting” on January 10 to address the pyramid scheme allegations made by short seller Bill Ackman, there is plenty of good discussion of HLF around the world wide web.

Kid Dynamite said Bill Ackman is wrong about Herbalife, citing that:

  • HLF  is not a pyramid scheme because commissions are paid based on sales of products, not recruitment (Wrong. Commissions are paid largely based on required minimum purchases of products by recruits.)
  • Herbalife has not committed accounting fraud in reporting their product sales. (I’m not so sure about that. The numbers as reported are deliberately and materially misleading.) Continue reading

Medifast Take Shape For Life: Endless Chain?

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A recent filing in the Medifast appeal (the case in which Medifast sued me and others, and lost miserably) raises some interesting questions about whether Take Shape For Life (TSFL) is an endless chain recruitment scheme. From that filing:

A. Medifast’s Evidence Does Not Prima Facie Show That FitzPatrick’s “Endless Chain” Statement is Provably False

Medifast’s reply again does not demonstrate that FitzPatrick’s endless-chain statement is false. Because Medifast has alleged libel, it must make a prima facie showing that challenged statements are untrue. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991). Courts also evaluate whether an average reader would consider the statement to be fact or protected opinion. Carver v. Bonds, 135 Cal.App.4th 328, 344 (2005). Continue reading

Multi-Level Marketing or Pyramid Scheme?

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Recently Bruce Craig, a retired lawyer from the Wisconsin Department of Justice in the area of consumer protection, published an interesting article on multilevel marketing: An Investor’s Guide To Identifying Pyramid Schemes. The controversy surrounding Herbalife (NYSE: HLF), and initiated simply because David Einhorn asked a few questions about the company, was the impetus for Bruce’s comments.

I believe that most mulit-level marketing companies (MLM, for short) are pyramid schemes that are allowed to operate in the United States. They are very careful in their efforts to avoid the label of “illegal pyramid scheme,” but that doesn’t mean they’re not pyramid scheme in substance. Continue reading

Multi-Level Marketing Companies and Pyramid Schemes

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For decades, muti-level marketing companies like Amway, Mary Kay, Herbalife, Avon, and Usana have fought against being labeled as pyramid schemes. They say that pyramid schemes are illegal, and that their MLM business format is perfectly legal.

My definition of MLMs is a little nuanced. I tend to call them legalized pyramid schemes. What I mean by this is that multi-level marketing companies are indeed pyramid schemes, but our state and federal governments allow them to operate and generally call them legal if they have the right window dressing. Continue reading

Similarities Between Herbalife and Pyramid Scheme BurnLounge

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In March, the Federal Trade Commission entered an order against multi-level marketing company BurnLounge, prohibiting the company and its founders from making certain misrepresentation and requiring them to disclose certain things in the future. Over the last few months, the heat has been on Herbalife, after short seller David Einhorn asked some important questions on a conference call. (Don’t let HLF tell you the questions were elementary or not important. They are very important.)

There is no doubt that Herbalife has had much financial success over the years. It is the largest publicly traded MLM, and its stock price has increased greatly since 2007. But are there things to be worried about? If you know something about multilevel marketing, the answer is YES. Continue reading

Bank Liability for Ponzi Schemes

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An article in a recent edition of the Bloomberg BNS Banking Report on Ponzi Schemes and bank liability referred to an article I wrote on recognizing red flags of Ponzi schemes:

Under each, a plaintiff must account for both the plaintiff’s failure to investigate the would-be fiduciary before investing with the fiduciary and the plaintiff’s failure to monitor the fiduciary’s activities subsequent to the investment. As to the first, there are often many red flags to alert an investor to a Ponzi scheme that reasonable investors should notice and that many investors choose to ignore in pursuit of high returns. Fraud detection expert Tracy Coenen has noted more than fifteen red flags signaling a Ponzi scheme that any investor could spot with a reasonably diligent (and fairly simple) investigation. These items include: Continue reading

Medifast and Take Shape For Life: Appeals, Pyramid Schemes, Truth, and Lies

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Yesterday my attorneys filed my response to the appeal in the lawsuit brought against me by Medifast, Inc. for my non-defamatory writings about the company and its Take Shape For Life multi-level marketing business. Medifast sued me on February 17, 2010, lied repeatedly to the court about my writings leading up to the lawsuit, and ultimately the judge dismissed me from the lawsuit on March 29, 2011.

You can read an important filing related to our anti-SLAPP motion here, which details what did and did not happen prior to the lawsuit. Medifast is appealing my dismissal from the lawsuit. Below is our response to Medifast’s appeal, and a pdf of the filing is found here.

My favorite quote from the brief: “Medifast claims that Coenen published false information, but it is Medifast that continues to make false accusations against Coenen.” Continue reading

Inline Marketing Scam: Same MLM Scam, Different MLM Name

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Through the years, multi-level marketing companies and MLM distributors have played a clever game of changing the wording to hide the truth. MLM activities have been referred to as direct sales, dual marketing, network marketing, multilevel marketing, consumer direct marketing, affiliate marketing, seller assisted marketing scams, home-based business franchising, and referral marketing. (Skeptics refer to this “business model” as pyramid selling, pyramid schemes, pyramid scams, endless chain recruiting, and Ponzi schemes.)

Why all the names? To confuse potential customers and recruits. These companies know negative impressions are associated with multi-level recruiting and sales. So if they can change the name, maybe they will get to people who would otherwise be turned off by the name MLM. Continue reading

Fortune Hi Tech Marketing: Multi-Level Marketing Scam or Pyramid Scheme?

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Fortune Hi Tech Marketing is one of hundreds of multilevel marketing companies that operate in the U.S through a combination of clever lawyering (“Let me show you how to set up your MLM so it appears to abide by the laws.”) and failure of law enforcement to enforce the laws against pyramid schemes and business opportunity scams (aided in large part by the Direct Selling Association and its lobbying efforts).

What makes FHTM different? Nothing, really. Every multi-level marketing company seems to claim it is different! It either has magic juice, special vitamins, the supposed opportunity to make money on things you already consume anyway, or any of a number of claims of uniqueness.

FHTM was founded in 2001 by former Excel Communications superstar Paul Orberson. This news story on Fortune Hi Tech Marketing from WHAS11 in Louisville, KY say that the company has 200,000 representatives and brings in revenue of $500 million per year. (Although the company’s CEO, Tom Mills, claimed he didn’t know how many representatives FHTM had. Incredible!) Oddly enough, this multi-million dollar business is run with only 60 employees at headquarters. Continue reading

Penn & Teller on Multi-Level Marketing and Pyramid Schemes

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Last month, Penn & Teller’s Showtime show Bullshit! featured multi-level marketing. They did an excellent job of hitting the high points on why MLMs almost guarantee failure for all the participants. Sure, there will be a couple of people at the top of the pyramid that make money, but that’s only because hundreds or thousands below them have lost money.

Lost money? Yes, MLM is all about losing money. They use a product as a “front” to hide this money transfer and make the scheme appear to comply with the law. But the products are of dubious quality, and significantly overpriced. MLMs aren’t really selling a product, they’re selling an “opportunity,” one in which almost everyone loses.

Here are some highlights from the episode: Continue reading