As for Usana's "legal vindication", let us also consider:
(1) NASDAQ's investigation of Usana that was a direct result of, and specifically cited (among other issues), the allegations of illegality made by Minkow - which was closed by NASDAQ with absolutely no action taken by them of any kind.
(2) Minkow's extensively documented attack on Usana, over a year ago, alleging SEC violations due to illegal pyramid recruiting activity in mainland China (a crime punishable there by life imprisonment, or even death) which was disseminated to several high ranking regulatory authorities there. Not only has Usana not been investigated by any level of the Chinese government, they have yet to even be contacted! Most likely due to the same numerous errors and omissions described in my rebuttal
to this matter, China has completely ignored this issue.
Agency inaction means just one thing: agency inaction. The law - you did call it "Usana's legal vindication", right? - permits no inference at all from such inaction, let alone "vindication". Don't believe me? How about the Supreme Court? "Appellant is free, as it has been throughout, to show any ruling or action taken by the [Interstate Commerce] Commission.... But mere inaction (statute omitted) is not an administrative ruling and does not imply decision." Union Stock Yard and Transit Co. of Chicago v. United States
, 308 U.S. 213, 224 (1939). The only time an agency's inaction has any independent legal significance is when circumstances obligate (as opposed to give it the discretion) to act, and then the only legal significance is to enable a suit against it to compel. General Motors Corp. v. United States
, 496 U.S. 530 (1990). So you might like to conclude that the SEC or NASDAQ's failure to take any action is "legal vindication", but the law certainly doesn't permit that conclusion.
And inaction in China? In China?
It's bad enough to try to infer anything by a U.S. agency's inaction, but China's? Just one observation: do you recognize the words "Tienanmen Square"? Certain things took place there several years ago, culminating in the events of June 4, 1989. Although the exact number will never be known, respected news reports claimed that the Chinese military killed several hundred protestors. Not only did China take no action against the military, but they arrested, tried and executed many of the protestors who survived. But, since you credit their government sufficiently to conclude what you wish from its inaction, I guess you credit it even more when it acts.
(3) In Minkow's withdrawal of his attack on Herbalife, he states: "The Fraud Discovery Institute immediately withdraws all accusations against Herbalife, including any Proposition 65 allegation relating to any Herbalife product and any contentions against the Herbalife business model." The Herbalife business model, multilevel marketing, is the same business model used by Usana.
One more time: the only conclusion I am addressing - and, if you read back through this thread, the only conclusion I have ever addressed - was that USANA was somehow "legally vindicated" in its suit against Minkow. I don't know about his allegations against Herbalife, and you keep trying to change the subject.
Oh, and I'm just getting started too...
Not yet, but maybe it's coming.
[4-6] [The shareholder derivative suits.]
One more time: the only conclusion I am addressing - and, if you read back through this thread, the only conclusion I have ever addressed - was that USANA was somehow "legally vindicated" in its suit against Minkow. I don't know about the shareholder derivative suits, and you keep trying to change the subject.
Maybe one day I'll have time to read the dockets on the derivative suits. I think it's too late for the Herbalife allegations, since they're gone (a fact over which I have already expressed my displeasure with Minkow, FWIW).
(7) The 10 month SEC investigation which Minkow's report initiated, which resulted in not only no action on the part of the SEC of any kind, they didn't even find enough merit in even one of Minkow's claims to upgrade their "informal inquiry" to a "formal investigation"!
See above for a discussion of the inferences which the law permits - and mainly doesn't permit - from agency inaction.
(8) And then there's the Usana law suit against Minkow, which was entirely and solely about gaining a court ordered Permanent Injunction against Minkow to force him to remove his anti-Usana material, cease to produce more of it, and to be forever forbidden from participating in its stock. Clearly Usana's primary goal was not to win damages from the libel component of their suit since Minkow still owes millions to Union Bank in restitution. They needed, and wanted, the stock manipulation charge to go forward because that was by far their strongest count, and that's what would have garnered them the injunction – and ultimate vindication.
Well, yes, that was USANA's claim. Unfortunately, their own actions belied the claim, and the Court decided it wasn't true. Why don't you mention that?
First of all, their original complaint
contained only actions for damages, and no securities claim at all. Now, certainly, discovery proceedings fleshed out the 10b-5 elements, and USANA pleaded it in their amended complaint
, but it is clear that USANA began the suit to shut Minkow up in his criticism of their business and products. I explain all of this in some detail, including posting links to the documents, earlier in the thread.
More importantly, the Court found
as a fact that USANA's "primary goal" was in disputing Minkow's claims in his original report, not (as you claim) proceeding with their securities manipulation count. Judge Campbell acknowledged that what you say was USANA's position: "Specifically, USANA maintains that the case centers on illegal market manipulation, not the Defendants’ statements made in the report and after." She then rejected that position:
Judge Campbell wrote:But the allegations in the amended complaint do not support USANA’s argument. In fact, most of the allegations arise from Defendants’ “public relations campaign,” in which Defendants made disparaging remarks about USANA’s products and business strategy. (See Am. Compl. ¶¶ 1, 25-48.) Because the manipulation, as described in the amended complaint, is clearly based on the report and Defendants’ statements about USANA, the basis of the lawsuit is the report and Defendants’ statements about USANA. (See id. ¶¶ 5, 32, 38.)
What’s more, USANA’s own pleadings in response to Defendants’ motions leave no
doubt that the essence of USANA’s claims centers on Defendants’ statements. In its opposition to Defendants’ motion to dismiss, USANA contended that it “is not alleging any stock
transaction between the parties to this matter. Instead, USANA is alleging that the reports issued by the Defendants were false, deceptive, and misleading . . . .”
Judge Campbell dismissed the heart of USANA's case against Minkow. That's not "legal vindication". And why don't you say so when you reach conclusions which are the exact opposite of the Court's?
MWave wrote:there appears to be very good reason the judge allowed this charge to go forward (did you really not know about all of this, Mr. Serra?).
I posted on it. I expressed considerable displeasure with Minkow's decision to short USANA, the only reason there was any case left against him at all. Why don't you read the thread?
And, ultimately, Usana achieved that "Final Injunction" against Minkow which legally compelled him to remove his anti-Usana material, produce no more of it, and never trade in their stock again, which was a separate COURT ORDER
over and above the private settlement between the parties. Usana was wholly victorious in achieving the primary goal of this law suit!
Unless you have inside information which I don't have, for all we know USANA paid Minkow as part of the settlement, in addition to the $143K which the Court ordered them to pay him in costs and attorney's fees. As you say, it's a private settlement - something else (as I posted) which gave me a problem with Minkow's actions.
As for your tunnel visioned focus on the relatively minor, peripheral issues that Usana lost involving only the California state issues,
As discussed above, that's not the way the Court saw it. And there is no "federal issue" involved in such things as tortious interference. USANA brought the case in diversity.
you suggested "Minkow had established sufficiently the truth of his pyramid / overpriced-product and similar claims". This is blatantly, entirely, and verifiably false. First, had any actual evidence been heard it would only have shown that Usana could not sufficiently DIS-prove Minkow's claims, not that Minkow had proven them (which, from a legal standpoint, is an entirely different criteria, as you surely know).
Wrong. Again, let me quote the Court: "USANA must show “there is a reasonable probability [it] will prevail on the merits at trial” by “show[ing] both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.”" (California citations omitted.) USANA brought the case. All they had to do was to show a "reasonable probability" of prevailing at trial. They couldn't. That's hardly "legal vindication".
Furthermore, the threshold for proving libel in California is exceedingly high.
So what? USANA brought the damn case, and you claimed they were "legally vindicated".
In other words, in California (where the Pledge of Allegiance was ruled unconstitutional, and O.J. got to play golf the last 13 years - until my state finally got him), you're apparently allowed to call someone a child molesting terrorist as long as it's your "opinion".
Why don't you take some shots at California courts now? Maybe that way people will forget that you claimed that USANA was "legally vindicated".
Having said that, none of this is even what the judge's ruling was based on! Usana lost on these counts because they did not meet certain evidentiary deadlines.
Now you're into the realm of just making stuff up. USANA lost on the matters most important to them because the judge found in so many words that they couldn't prove their case.
It was not based on any actual evidence either way – it was entirely procedural!
Off the deep end to anyone who knows anything about the law. The first part of the opinion is a discussion of Erie
, and whether California law should apply. If the law were procedural (let alone "entirely procedural"), Erie
holds it would not
apply. The judge, of course, applied it, thus finding it substantive.
I'm curious, Mr. Serra, did you even read any of the motions and rulings in this case, or are you basing yours on what you've gleaned from internet troll droppings?
Good one. Very perspicacious.
Were you genuinely ignorant of all of these "legal vindications" of Usana, or were you fully aware of them and just hoping the rest of us weren't?
That one too. You may be right, after all, about those forums in which you participate being ad hominem.