Fraud Discovery Institute's Analysis of USANA

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Re: Fraud Discovery Institute's Analysis of USANA

Postby wserra » Sun Oct 12, 2008 11:20 pm

MWave wrote:Mr. Serra,


Mr. Clements,

I no longer have the time, nor, it seems, the necessity (since Usana has now been legally vindicated on practically every charge made against them) to write rebuttals to this anti-Usana propaganda, especially within a thread that appears to have few remaining readers.


Don't you have anything better to do with your time than defend a "legally vindicated" USANA somewhere with "few remaining readers"? Apparently not.

Independent of the number of readers, accuracy is important to me. So let's look at exactly how USANA was "legally vindicated".

Judge Campbell entered two dispositive orders during the USANA-Minkow litigation. The first was her ruling on Minkow's summary judgment motion. You will recall that she granted Minkow summary judgment on every count except the 10b-5. Before getting there, she had to rule on USANA's threshold contention that Erie barred the application of the California anti-SLAPP to this diversity litigation. USANA lost.

Next Judge Campbell had to determine whether USANA was suing Minkow over activities which were otherwise protected under the First Amendment. USANA lost.

Next USANA had to show something in which one would think you would be interested - the probability of previling on its claims. Judge Campbell considered all of them: a violation of California’s Unfair Competition Law, a violation of California’s Corporations Code, intentional interference with economic relations, tortious exposure to litigation, and violation of federal securities laws. The first four contained Minkow's allegations concerning misrepresentations of its products, running an unlawful pyramid, and so forth. USANA lost all four, Judge Campbell deciding that they could not show a reasonable probability of prevailing. As for the securities violations - what I always said was a dumb move on Minkow's part, shorting USANA stock - it only survived dismissal because USANA sought an injunction and not monetary damages. And even then, Judge Campbell noted that "dismissal of the 10b-5 claim for injunctive relief is not proper at this stage of the litigation". If you haven't read a lot of court opinions, the underscored language is a hint and a half from a judge that she may well dismiss it later - and so the plaintiff probably ought to settle.

Still think USANA was "legally vindicated"? Well, I'm not done yet.

Next up was Judge Campbell's order awarding Minkow costs and attorney's fees, to be paid by USANA. They total was $142,510. Judge Campbell ordered USANA to pay this sum to Minkow because, of course, she concluded that USANA had been "legally vindicated".

I'll tell you what, Mr. Clements: You send me a check for $142,510. You can them claim legal victory.

However, I will be launching a professionally produced podcast show in a few weeks (to an audience of thousands), called "Inside Network Marketing", which will include an interview/debate segment. Would you like to defend your arguments within this forum?


Maybe. A few questions first. Will all participants be live, in real time? Will it be synchronized unedited? Who controls the microphones? Who else will be present? Will all participants be in the same physical place, or will you use a telephone/conferencing hookup? Who else will be there? Is it to be an even split between those who are independent and the inevitable industry shills?

And BTW, The shareholder suit that was dismissed on summary was directly and specifically related to Minkow's charges against Usana,


There are very few people I trust to argue my arguments. How about you?

and "blah, blah, blah..." is not a very effective rebuttal.


Well, that's because it wasn't a rebuttal at all. It was a mercy killing of empty verbosity.
"A wise man proportions belief to the evidence."
- David Hume

Nikki

Re: Fraud Discovery Institute's Analysis of USANA

Postby Nikki » Mon Oct 13, 2008 12:26 am

So, am I correct in interpreting the above to mean:

USANA is a pyramid scheme.

Their products are ineffective and overpriced.

They are inherently dishonest.

Did I miss any key factors?

MWave

Re: Fraud Discovery Institute's Analysis of USANA

Postby MWave » Mon Oct 13, 2008 5:44 am

wserra wrote:
MWave wrote:I no longer have the time, nor, it seems, the necessity (since Usana has now been legally vindicated on practically every charge made against them) to write rebuttals to this anti-Usana propaganda, especially within a thread that appears to have few remaining readers.


Don't you have anything better to do with your time than defend a "legally vindicated" USANA somewhere with "few remaining readers"? Apparently not.


Based on your response above, and the fact I offered absolutely no defense of any point in my previous post beyond the one comment related to the shareholder suit, I apparently need to be clearer: I will not debate you in this forum. I have made numerous attempts to conduct a professional, constructive, dignified debate of such issues on message boards and have found it to be an utterly useless endeavor. This type of forum is far to conducive to diversion, spin, semantic game playing and ad hominem attacks – all of which you have already begun to employ. It is a coward's forum. A live debate forces both sides to address the specific points at hand, and compels one to support their point instantaneously, and exposes their ignorance or deception when they cannot. It also allows for an immediate point-counter point, rather than having to wait hours, or even days, for a response to be posted. A live debate also allow for a far greater audience to learn from the information provided.

wserra wrote:
MWave wrote:However, I will be launching a professionally produced podcast show in a few weeks (to an audience of thousands), called "Inside Network Marketing", which will include an interview/debate segment. Would you like to defend your arguments within this forum?


Maybe. A few questions first. Will all participants be live, in real time? Will it be synchronized unedited? Who controls the microphones? Who else will be present? Will all participants be in the same physical place, or will you use a telephone/conferencing hookup? Who else will be there? Is it to be an even split between those who are independent and the inevitable industry shills?


It will be you and I, recorded, no time limit, and other than one 2 minute commercial break at the mid-point it will be podcast unedited. Unless you wish to join me in my home studio here in Las Vegas, you will be calling in. I have made this offer to numerous anti-Usana/MLM message board mavins who don't seem to have sufficient confidence to accept a transfer of the discussion to a safetynetless live forum. If you accept, you will be the first.

Len Clements

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Re: Fraud Discovery Institute's Analysis of USANA

Postby wserra » Mon Oct 13, 2008 1:34 pm

MWave wrote:Based on your response above, and the fact I offered absolutely no defense of any point in my previous post beyond the one comment related to the shareholder suit, I apparently need to be clearer: I will not debate you in this forum.


In your first post here ever, you proclaimed that USANA had been "legally vindicated" and that something I had written was "anti-Usana propaganda". I responded with details, complete with links to actual court documents, clearly showing that USANA had come far closer to being legally squished than legally vindicated. You then retire from the field. That is of course your prerogative, as it is the prerogative of the reader to draw appropriate inferences from that withdrawal.

I have made numerous attempts to conduct a professional, constructive, dignified debate of such issues on message boards and have found it to be an utterly useless endeavor.


You have not done so here. I have no idea what you may have done elsewhere.

This type of forum is far to conducive to diversion, spin, semantic game playing and ad hominem attacks – all of which you have already begun to employ.


If by "spin" you mean characterizing a clear loss as a "vindication", and if by "ad hominem attacks" you mean characterizing a poster's words as "propaganda" - without attempting to support either characterization - I guess I agree. Good thing we have a public, uncensored arena to clarify, isn't it?

It is a coward's forum.


According to the combatant who fired the opening salvo and then beat a hasty retreat at the first sign of opposition.

Unless you wish to join me in my home studio here in Las Vegas, you will be calling in.


Ah. When you first described this podcast as "professionally produced", I didn't picture that you would host it in your home. I pictured a radio station, a school or similar entity doing the hosting. I don't play in rigged games, whether at the Las Vegas crap tables or at Las Vegas MLM Central.

Moreover, while what you say about a live encounter is true to some extent, there is much to be said for a debate in a forum such as this as well. I have no doubt that you can pull out statistics that I can't analyze on the fly. After all, you attempt to make a living selling stuff to the marks who believe that they can make a living in MLMs. My livelihood has nothing to do with MLMs - I strictly do this as a volunteer. This format thus gives each side the opportunity to research the other's claims and verify or disprove them - exactly as I did with your claim about USANA's "legal vindication".

I have made this offer to numerous anti-Usana/MLM message board mavins who don't seem to have sufficient confidence to accept a transfer of the discussion to a safetynetless live forum.


I, rightly or wrongly, have "sufficient confidence" to enter a "safetynetless live forum" all the time. It's called "court". You propose, however, a live forum hosted in the living room of someone whose livelihood depends on the survival of the MLM "industry". I can readily understand the reluctance of those with whom you disagree to participate.
"A wise man proportions belief to the evidence."
- David Hume

ohein56

Re: Fraud Discovery Institute's Analysis of USANA

Postby ohein56 » Mon Oct 13, 2008 9:57 pm

I, rightly or wrongly, have "sufficient confidence" to enter a "safetynetless live forum" all the time. It's called "court". You propose, however, a live forum hosted in the living room of someone whose livelihood depends on the survival of the MLM "industry". I can readily understand the reluctance of those with whom you disagree to participate

I guess I understand your logic, wserra.

I guess you run into that same kind of blind prejudice all the time, being a lawyer & all!

There's many more lawyer jokes floating around out there than there are MLM ones!

Imagine that! :lol:

Looking forward to seeing how you & Len get on with all this finger pointing 'tripe' w/ Minkow & USANA.

Can't wait.

Kerry

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Re: Fraud Discovery Institute's Analysis of USANA

Postby wserra » Tue Oct 14, 2008 1:09 am

Whatever you just said, Kerry, welcome to Quatloos.
"A wise man proportions belief to the evidence."
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MWave

Re: Fraud Discovery Institute's Analysis of USANA

Postby MWave » Tue Oct 14, 2008 2:33 am

wserra wrote:In your first post here ever, you proclaimed that USANA had been "legally vindicated" and that something I had written was "anti-Usana propaganda". I responded with details, complete with links to actual court documents, clearly showing that USANA had come far closer to being legally squished than legally vindicated. You then retire from the field. That is of course your prerogative, as it is the prerogative of the reader to draw appropriate inferences from that withdrawal.


My first post here was a challenge to take this debate from a dank back alley message board to the bright lights of the podcast arena, where all safety nets would be removed, and the audience would increase by potentially thousands. That is hardly "retiring from the field".

wserra wrote:
MWave wrote:It is a coward's forum.


According to the combatant who fired the opening salvo and then beat a hasty retreat at the first sign of opposition.


As I recall, the first "salvo" was your reference to me as an "ignorant scammer".

And you, sir, are the one who has declined my challenge to an open, live debate.

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.

(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.

Oh, and I'm just getting started too...

(4) The derivative class action law suit against Usana, again directly related to, and which specifically cited (often times verbatim) the Minkow allegations of illegality, which was dropped by the plaintiffs before the case could even be heard!

(5) The distributor class action suit against Usana, which was not only directly related to Minkow's allegations, the two (and only) plaintiffs were direct contacts of Minkow's (one was his source for all his anti-Ladd McNamera trash), who openly confessed to having suffered no financial damages, other than a $500 refund he was seeking for product he never returned. This suit also, often word-for-word, cited most of Minkow's specific allegations of fraud, illegal pyramiding, and financial unsustainability. In this case the plaintiff's attorney himself agreed he had no evidence to support his case and simply withdrew it before a hearing on Summary Judgement could even be heard!

(6) The shareholder class action suit against Usana, once again directly related to, and which specifically cited (again often verbatim) the Minkow allegations of illegality, which was dismissed on Summary by a federal court judge! For those not familiar with legal terms, a "Summary Judgement" (in laymen's terms) is where the judge believes there is so little evidence to support the plaintiff's case that to bring it to trial would be a waste of the court's time as there would be virtually no chance for it to succeed. Indeed, the court ruled the plaintiff's case was not even "plausible".

(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"!

(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. And considering the $61,000 Minkow made by shorting Usana's stock (put options, actually), and the $250,000 he was paid by fellow felon Sam Antar, who was also short Usana's stock, right before Minkow began his Usana investigation (of which $150,000 he admits was specifically for the production of his anti-Usana report - the other $100,000 he claims was simply a "gift"), not to mention the $50,000 he was also paid for the report by two hedge fund managers, 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?). 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!

As for your tunnel visioned focus on the relatively minor, peripheral issues that Usana lost involving only the California state issues, 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). Furthermore, the threshold for proving libel in California is exceedingly high. Even though Minkow asserted Usana to be an "illegal... fraudulent... evil...scam" the court could have only ruled that he was within his First Amendment rights to make such statements based on his personal feelings and observations (not that any of it was proven to be true). 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". 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. It was not based on any actual evidence either way – it was entirely procedural! 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?

And BTW, if you were to read Minkow's deposition, besides verifying most of what I just said, you'd also discover that his legal fees were being covered by his insurance company.

While this all completely answers the question as to why you declined to debate these issues with me in a live forum (the concept that my physical location during the debate had any bearing on the authenticity or quality of it, or that a seasoned litigator who's a partner in a law firm could not have still persevered, was pretty silly, wasn't it?), this does now beg the question:

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?

Len Clements
Last edited by MWave on Sat Oct 18, 2008 3:07 am, edited 1 time in total.

ohein56

Re: Fraud Discovery Institute's Analysis of USANA

Postby ohein56 » Tue Oct 14, 2008 5:31 am

Um, a ...that's what I was talking about, Wserra.

Welcome to the real world of NWM.

Lens comments seem encouraging to say the least.

I'm dying to hear your lucid response.

I had a funny feeling Mr Minkow & his co-horts were up to some kind of slight of hand mischief.

Who knew!

Thanks for the insights, Len.

KLH

ohein56

Re: Fraud Discovery Institute's Analysis of USANA

Postby ohein56 » Tue Oct 14, 2008 5:53 am

wserra wrote:Whatever you just said, Kerry, welcome to Quatloos.

Thanks, for the welcome too, Wserra.

When once the forms of civility are violated, there remains little hope of return to kindness or decency. ~ Samuel Johnson


And my best to you as well,

Kerry

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Re: Fraud Discovery Institute's Analysis of USANA

Postby wserra » Tue Oct 14, 2008 11:19 am

MWave wrote:My first post here was a challenge to take this debate from a dank back alley message board


An' you don' know jus' how grateful us po', barefoot, country rubes are fo' the attenshun o' someone lahk you, Mr. Clements. Why, 's not ever' day that we-all get aroun' to meetin' the feller who wrote classics lahk "Inside Network Marketing" and "It's Time for ... Network Marketing".

I'm reading this Tuesday morning, not only after a three-day holiday weekend but also after the end of the eight-day Jewish holidays during which my colleagues were out. It's kinda busy around now. It may take me a couple of days, but I'll respond.

I'd hate to have you give up on us and move on to uplift someplace else.
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ohein56

Re: Fraud Discovery Institute's Analysis of USANA

Postby ohein56 » Tue Oct 14, 2008 4:33 pm

Len didn't write "It's Time for Network Marketing", but I don't think you're a stickler for details regardless.

I have a funny feeling that not paying attention to glaring, obvious details is fairly commonplace for you, from the looks of it.

KLH

MWave

Re: Fraud Discovery Institute's Analysis of USANA

Postby MWave » Tue Oct 14, 2008 7:15 pm

wserra wrote:
MWave wrote:My first post here was a challenge to take this debate from a dank back alley message board


An' you don' know jus' how grateful us po', barefoot, country rubes are fo' the attenshun o' someone lahk you, Mr. Clements. Why, 's not ever' day that we-all get aroun' to meetin' the feller who wrote classics lahk "Inside Network Marketing" and "It's Time for ... Network Marketing".


After everything I just wrote, the only thing you could come back with was a mocking, sarcastic personal attack? And you didn't even get that right. What does a "dank back alley" have to do with being a "country rube"?

And K is correct. I am not the author of "It's Time...", I am the publisher. It was edited by John Milton Fogg. You could have known that by reading the big giant letters that spell out his name on the front cover of hundreds of images of the book all over the internet.

Considering the above, and that you even responded to my last post at all, I'm starting to wonder, does anything embarrass you?

wserra wrote:I'm reading this Tuesday morning, not only after a three-day holiday weekend but also after the end of the eight-day Jewish holidays during which my colleagues were out. It's kinda busy around now. It may take me a couple of days, but I'll respond.


Oh, I'm sure you're going to need some time to scour the archives of PACER looking for any little crumb you can use to save face. Please, take your time. It should be worth the wait.

Len Clements

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Re: Fraud Discovery Institute's Analysis of USANA

Postby Burzmali » Tue Oct 14, 2008 8:31 pm

I'm curious, rant and rave as you may, how does any of that show that your product isn't junk and that the structure isn't a pyramid? Taken in the best light, I see USANA scoring a draw in the sense that while the court effectively ruled that Minkow was right in calling your operation a scam, further legal action managed to uncut his position return everything back to square one.

If I, or anyone not shorting USANA stock, were to make the same claims as Minkow, given this history, what could USANA do to stop me?

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Re: Fraud Discovery Institute's Analysis of USANA

Postby Judge Roy Bean » Tue Oct 14, 2008 8:35 pm

MWave wrote:....I apparently need to be clearer: I will not debate you in this forum.....
Len Clements


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Re: Fraud Discovery Institute's Analysis of USANA

Postby Arthur Rubin » Tue Oct 14, 2008 8:45 pm

MWave wrote:(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.
Nonsense. Hebalife has an underlying product. USANA has ...?
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Re: Fraud Discovery Institute's Analysis of USANA

Postby wserra » Wed Oct 15, 2008 3:30 pm

MWave wrote: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.

Bad protestors.

(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.
"A wise man proportions belief to the evidence."
- David Hume

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wserra
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Re: Fraud Discovery Institute's Analysis of USANA

Postby wserra » Wed Oct 15, 2008 10:07 pm

Burzmali wrote:If I, or anyone not shorting USANA stock, were to make the same claims as Minkow, given this history, what could USANA do to stop me?


The Court dismissed every claim USANA made except the 10b-5. That should answer your question.
"A wise man proportions belief to the evidence."
- David Hume

ROFL

Re: Fraud Discovery Institute's Analysis of USANA

Postby ROFL » Fri Oct 17, 2008 8:15 am

Only in LennyLand can Minkow win favorable rulings on all issues, and then get a monetary settlement from Usana on the last issue.... and that is considered a victory for Usana.

Purported IQ not withstanding, I think Lenny is a little confused about how the legal system works, which is why he can consider Minkow's victory to be a loss. I love his part about the big court order Usana got.... Yah. That was part of the settlement. Usana paid up and Minkow agreed to have the court order entered. Doesn't really sound like much of a victory for Usana. Sounds like Minkow just had no reason to not let them get the court order...

Lenny can spout off all day about his theories for why agencies or countries didn't take action against Usana. That in no way vindicates Usana or means that these agencies or countries are endorsing Usana. That's not a victory for Usana. (I'll admit it's a non-loss. But not a victory per se.)

Time for Lenny to take his broke @ss back to peddling pyramid schemes and producing amateur recordings in his living room.

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Re: Fraud Discovery Institute's Analysis of USANA

Postby wserra » Fri Oct 17, 2008 1:24 pm

ROFL wrote:Only in LennyLand can Minkow win favorable rulings on all issues, and then get a monetary settlement from Usana on the last issue.... and that is considered a victory for Usana.


Do you have any proof that Minkow ever received anything from USANA, other than the Court-ordered costs and attorney's fees? I'd certainly be interested in it, if such proof exists.
"A wise man proportions belief to the evidence."
- David Hume

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Re: Fraud Discovery Institute's Analysis of USANA

Postby webhick » Fri Oct 17, 2008 4:38 pm

ROFL wrote:Time for Lenny to take his broke @ss back to peddling pyramid schemes and producing amateur recordings in his living room.


From what I'm reading on the internet, it seems that Len Clements managed to acquire an established ten year old downline with USANA that has over 100 distributors. If that's true, then 1) he's still peddling his pyramid scheme by spreading disinformation about the "vindication" as a way to keep his downline intact 2) he's still got plenty of time to produce recordings at home since AFAIK, established long-standing downlines are the ones that you no longer have to do much recruiting for because your downline is doing it all for you.
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