{"id":4632,"date":"2010-04-28T12:46:23","date_gmt":"2010-04-28T17:46:23","guid":{"rendered":"http:\/\/www.sequenceinc.com\/fraudfiles\/?p=4632"},"modified":"2015-06-10T13:30:59","modified_gmt":"2015-06-10T18:30:59","slug":"medifast-lawsuit-anti-slapp-motions-filed","status":"publish","type":"post","link":"https:\/\/www.sequenceinc.com\/fraudfiles\/medifast-lawsuit-anti-slapp-motions-filed\/","title":{"rendered":"Medifast Lawsuit: Anti-SLAPP Motions Filed"},"content":{"rendered":"

UPDATE: <\/strong>On February 17, 2010, Medifast Inc. filed suit<\/a> in US District Court, Southern District of California, alleging defamation, violation of California Corporations Code, and unfair business practices. On March 29, 2011, Judge Janis Sammartino dismissed<\/strong> all of Medifast’s claims against me in her ruling on my anti-SLAPP motion<\/a>.<\/em><\/p>\n

Anti-SLAPP motions have been filed in the Medifast lawsuit<\/a> by me and by my co-defendant, Robert FitzPatrick. My motion can be read in its entirety here, <\/a>and Fitzpatrick’s can be read here<\/a>.<\/p>\n

SLAPP stands for Strategic Lawsuit Against Public Participation<\/a>.\u00a0 It’s basically when a big company tries to shut up a little guy with expensive litigation. In my opinion, Medifast sued me and others in an attempt to get us to stop publicly analyzing or criticizing the company and it’s multi-level marketing business model.<\/p>\n

In filing an anti-SLAPP motion, we are essentially asking the court to rule in our favor and in favor of free speech. Consumers should have the right to discuss, analyze, and criticize companies without the fear of expensive lawsuits<\/a>.<\/p>\n

Winning an Anti-SLAPP motion is a two part process:<\/p>\n

    \n
  1. We have to prove that what we’re being sued for is essentially a free speech issue.<\/li>\n
  2. Medifast then has the burden of proving that there is a “probability” of prevailing on their claims in the lawsuit.<\/li>\n<\/ol>\n

    The first part can be easily proven. I am\u00a0 a fraud investigator who writes about fraud and consumer scams. It is in the public’s interest for discussions of multi-level marketing\u00a0 and its pitfalls to occur.<\/p>\n

    The second part is a huge hurdle for Medifast to get over. They won’t win on their claims related to my republishing of writings by FitzPatrick and Barry Minkow and Fraud Discovery Institute. Medifast is pretending that I adopted their writings as my own when I published them on my blog, but that’s contrary to the law on the issue. As to my own writings, there was nothing false in them, so Medifast can’t win on that issue. (And now is a good time to remind you that the Medifast attorneys have been lying to the court about what I’ve written<\/a>.)<\/p>\n

    But the most interesting part of all of this is a detailed account in the FitzPatrick filing of all the lies Medifast told in its complaint in this case. Here’s the best stuff from his motion:<\/p>\n

    Plaintiff\u2019s Complaint Contains False and Misleading Allegations and Should Be Viewed As Suspect <\/strong><\/p>\n

    One reason why Plaintiffs cannot establish a probability of prevailing on any of their claims is because Plaintiffs\u2019 Complaint is replete with misrepresentations and material omissions of material fact that render the entire Complaint as suspect.<\/p>\n

    For example, contrary to Plaintiffs\u2019 claim, Medifast, Inc. did not start doing business in 1980.\u00a0 (See Complaint, \u00b618.)\u00a0 In fact, Medifast was not incorporated until 2001 when it changed its name from Healthrite to Medifast.\u00a0 (Exhibit C.)<\/p>\n

    Rather, in 1980, a company called Jason Pharmaceutical, Inc. began manufacturing and marketing to doctors and hospitals, products with the brand name Medifast.\u00a0 (See Exhibit D.)<\/p>\n

    Contrary to Plaintiffs\u2019 claim (Plaintiffs\u2019 Complaint, \u00b621), the Medifast products and weight loss plan was developed by Dr. William Vitale, not Dr. Wayne Anderson.\u00a0 (Exhibits E and EE.)<\/p>\n

    Contrary to Plaintiffs\u2019 claim (Complaint, \u00b620), Medifast products were not at all times readily available to the public.\u00a0 Instead, Medifast products were only available from a doctor and with a doctor\u2019s supervision because the Medifast program was an extremely low calorie diet and dangerous.\u00a0 (Exhibit F).<\/p>\n

    As set forth in Exhibit G at p. 901, in a 1992 FTC Consent Decree issued against Jason Pharmaceuticals, there were substantial health risks associated with Medifast products.\u00a0 As set forth in Exhibit II, there are still significant health risks.\u00a0 (See Grell Aff., \u00b6\u00b678-80.)<\/p>\n

    As also set forth in FTC Consent Decree, the FTC found that Jason Pharmaceuticals was guilty of false and misleading statements about the safety and efficacy of the Medifast products and program, facts that were concealed by Jason Pharmaceuticals and its successor companies, Vitamin Specialties, Healthrite and Medifast.<\/p>\n

    Jason Pharmaceuticals was also involved in a number of personal injury lawsuits stemming from the use of their Medifast program, which were also concealed.\u00a0 (See Exhibit H.)<\/p>\n

    As set forth in Exhibit H, up until the time that the FTC issued its Consent Decree, Jason Pharmaceuticals (\u201cJason\u201d) successfully marketed the Medifast plan through the use of false and misleading advertising.<\/p>\n

    Facing an increasing number of personal injury lawsuits, coupled with the fraud claims brought by the FTC, Jason filed for bankruptcy in 1994.\u00a0 (See Exhibit I.)<\/p>\n

    In 1995, a publically traded corporation named Vitamin Specialties purchased Jason.\u00a0 (See Exhibit J.)\u00a0 Jason became a subsidiary of Vitamin Specialties.<\/p>\n

    Despite the fact that Jason had been ordered by the FTC to provide copies of the 1992 FTC order to any company that subsequently purchased or acquired Jason (See Exhibit G, p. 915), the annual reports of Vitamin Specialties for the year 1995 made no mention of the FTC\u2019s Consent Decree to the public or its stockholders.\u00a0 No mention was made of any of the lawsuits that were filed against Jason either.<\/p>\n

    In 1995, Vitamin Specialties changed its name to Healthrite. (Exhibit K.)\u00a0 Jason remained a subsidiary.\u00a0 Bradley MacDonald was CEO of Healthrite.<\/p>\n

    At no time did Healthrite, which was also publically traded, ever mention the 1992 FTC Consent Decree or any of the lawsuits to the public or its stockholders during the years 1995, 1996, 1997, 1998, 1999, 2000 and 2001.<\/p>\n

    In 1997, the Board of Directors of Healthrite fired MacDonald, claiming he was incompetent. (See Exhibit L.)<\/p>\n

    After being fired, MacDonald used the Healthrite stock he had acquired as CEO and started a proxy fight with Healthrite\u2019s then Board of Directors.\u00a0 (See Exhibit M.)<\/p>\n

    As a result of the proxy fight, MacDonald regained his position as CEO of Healthrite in 1998.\u00a0 (Exhibit N)<\/p>\n

    In 2001, Healthrite decided to change the company\u2019s name to Medifast.\u00a0 (Exhibit O.)<\/p>\n

    At no time did Medifast disclose to the public that a consent decree had been issued against Jason Pharmaceutical, a subsidiary of Medifast.<\/p>\n

    At the time, Medifast sent a proxy statement to all shareholders.\u00a0 (Exhibit P.)\u00a0 One of the more interesting disclosures that Medifast was, that instead of there being the 20,000 physicians who had recommended the Medifast products and weight plan as set forth in Plaintiffs\u2019 Complaint (See Complaint, \u00b619), there were only \u201cseveral thousand doctors\u201d who did so.)<\/p>\n

    Proof that Medifast falsely advertised that 20,000 physicians recommended the Medifast program is set forth in Medifast\u2019s 2008 Annual Report (Exhibit Q), wherein Medifast claims that only 15,000 physicians had recommended the Medifast program.\u00a0 Proof that this number had not changed in decades is set forth in Exhibit G, p. 910, wherein it was reported that in 1989, two to three years before the FTC issued its order, 12,000 physicians recommended Medifast.<\/p>\n

    In other words, assuming that during the years 1990 and 1991, another 1,333 new physicians joined Medifast, by September 1992, there were approximately 15,000 physicians getting paid to falsely advertise and recommend the Medifast program.<\/p>\n

    Under the FTC Consent Decree, Jason Pharmaceuticals was ordered to serve a copy of the FTC order on every physician involved.\u00a0 (See Exhibit G, p. 915.)\u00a0 As a result, many physicians ceased being involved, especially when Medicare stopped reimbursing physicians for patients on the Medifast plan.\u00a0 (Exhibit R.)<\/p>\n

    Medifast\u2019s advertisements claiming that 15,000 or 20,000 physicians recommended the Medifast program is also misleading because the Medifast program previously recommended was not the same Medifast program sold today.\u00a0 (See Exhibit S.)<\/p>\n

    In fact, in late 2002, the last year that the FTC order was in effect (See Exhibit G, p 915), Medifast started the company \u201cTake Shape for Life\u201d.\u00a0 As set forth in Exhibits T and DD, the TSFL Medifast business model bore no resemblance to the original doctor-supervised Medifast liquid protein diet plan.<\/p>\n

    As set forth in Exhibits T and V, at the time Medifast changed to its multi-level marketing program, the company was on the verge of bankruptcy.<\/p>\n

    After regaining his position as CEO of Healthrite\/Medifast, in 2007, MacDonald was again removed as CEO of Medifast for suspected improprieties.\u00a0 (Exhibit U.)<\/p>\n

    As set forth in Exhibit V, Medifast\u2019s stock also had a history of substantial declines.<\/p>\n

    Given the prior history of Medifast and MacDonald and their failure to disclose information to the public and its stockholders, it was only a matter of time before the questionable practices and problems with Medifast were exposed.\u00a0 Exposing the truth, however, does not give rise to a libel claim.<\/p>\n

    Other material and misleading claim by Plaintiffs is their claim that the Medifast program has been clinically approved.\u00a0 As set forth in Exhibit W, Medifast never publicized the fact that the clinical study done by John Hopkins by Lawrence Cheskin, M.D., the principal author, was paid for by Medifast and run by Lawrence Cheskin, M.D., a member of Medifast\u2019s Board of Medical Advisors.\u00a0 Medifast also failed to disclose that the John Hopkins study, which Medifast uses as a strong advertising claim, was originally rejected by Diabetes Care, a leading peer-reviewed journal.\u00a0 (See Exhibit W.)\u00a0 It was later published in a less prestigious journal.<\/p>\n

    As set forth in the Grell Aff. (Exhibit 1, \u00b6\u00b678-81), Medifast also failed to disclose the risks of the Medifast diet, risks which Medifast\u2019s own Dr. Cheskin writes about in\u00a0 his books and reports.<\/p>\n

    Another false and misleading claim is Medifast\u2019s claim that health coaches can obtain \u201chealthy finances.\u201d (Complaint, \u00b622.) As set forth in Exhibit X, recently posted compensation documents, buried in the Medifast TSFL\u2019s website, show that the average monthly income of a health coach is $76.00, significantly less than what it would cost a health coach to set up its Medifast business opportunity.\u00a0 Indeed, while Medifast claims that its health coaches have low start-up costs (Complaint, \u00b627), Medifast fails to disclose the true cost for a health coach to get their business up and running and to stay up and running.\u00a0 (Exhibit Y, see also Grell Aff., \u00b6\u00b680-81.)<\/p>\n

    In short, Medifast past and present history, as set forth in Plaintiffs\u2019 Complaint, is replete with false and misleading statements and omissions of material fact made to promote the integrity of the case, the company, the company\u2019s products and the integrity of Medifast and of MacDonald as upstanding public figures.\u00a0 They are not and, as a result, Plaintiffs\u2019 claims should be viewed with suspicion in evaluating the merits of Plaintiffs\u2019 claim.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

    UPDATE: On February 17, 2010, Medifast Inc. filed suit in US District Court, Southern District of California, alleging defamation, violation of California Corporations Code, and unfair business practices. On March 29, 2011, Judge Janis Sammartino dismissed all of Medifast’s claims […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[184],"tags":[840,830,835,834,836,837,841,842],"class_list":["post-4632","post","type-post","status-publish","format-standard","hentry","category-pyramid-schemes-mlm","tag-anti-slapp","tag-barry-minkow","tag-defamation","tag-medifast","tag-robert-fitzpatrick","tag-slapp-suit","tag-take-shape-for-life","tag-tsfl"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p6Z0e-1cI","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/posts\/4632","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/comments?post=4632"}],"version-history":[{"count":0,"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/posts\/4632\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/media?parent=4632"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/categories?post=4632"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.sequenceinc.com\/fraudfiles\/wp-json\/wp\/v2\/tags?post=4632"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}