wserra wrote: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".... 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.
You're not the first to use this defense, and I've always got a kick out of it. So the SEC and NASDAQ investigated all of the alleged illegal activities that Minkow asserted, did find evidence of this illegal activity, and just decided to forget it and drop the whole thing? There is no other logical scenario that supports your position. Mine, however, suggests that they spent months (10 in the case of the SEC) investigating these claims, and took no action because they found no evidence of any illegal activity.
"All other things being equal, the simplest solution is the best."
– Occam's razor
I'll leave it to the reader to decide which of our solutions is most reasonable.
wserra wrote: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.
Like I said, China reacts far more swiftly and with much greater force to what they deem to be illegal or even anti-social activities than does the United States. Yet, even there, where pyramid scheme operators are sometimes put to death, and with all the supposed "evidence" that Minkow heaped upon their top legal authorities, they took no action of any kind! They didn't even contact Usana and ask them about this. You just made my point!
wserra wrote: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.
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.
Any reasonable reader must clearly see that you are trying desperately to keep this argument to the one and only legal decision that went against Usana, and ignore the numerous others that were in their favor. This debate was and is most certainly not only focused on the SLAPP ruling in CA. My response to you, which you so arrogantly and sarcastically challenged, was that Usana has been "legally vindicated". Period. I then listed all the ways they were "legally vindicated". I'm sure you would love to just have everyone ignore all of the other "legal vindications" Usana achieved, and focus on only their single loss (that actually provides utterly no evidence of any actual illegality). How convenient I'm sure that would be for you at this point.
wserra wrote:MWave wrote:[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.
I know the only thing you addressed was the SLAPP decision, and it's glaringly obvious you didn't know about all of the other suits charging Usana with the same illegal activities as Minkow that Usana completely defeated! That's the very point of my argument! You originally claimed that as a result of this one decision, which was only part of a much larger suit, "Minkow had established sufficiently the truth of his pyramid / overpriced-product and similar claims". And you made this claim precisely because you didn't know about all of the other, much more significant legal victories that Usana had experienced that specifically dealt with these same specific allegations! Now that I've defended by argument with them, you are trying, as I suppose any good litigator would do, to try to create the illusion of their unimportance and irrelevance.
It won't work. Usana was, in fact, "legally vindicated" by several legal authorities, you were ignorant of it all, and now you've painted yourself into a corner you can't get out of.
wserra wrote:Maybe one day I'll have time to read the dockets on the derivative suits.
You keep referring to all of the class action law suits I listed as "derivative suits". There was ultimately only one derivative suit, which plaintiff's council agreed to just drop (oh, but you're right - that could have been because they did have evidence to support their case, but just didn't feel like pursuing it). The other two class actions were a distributor suit (where the plaintiff's council asked to have it dropped!), and the shareholder suit where a federal judge actually reviewed the "evidence" against Usana's illegality and found it to not even be "plausible" - then dismissed it on summary!
I would have swore I mentioned all of this before. Care to actually respond to it?
wserra wrote:MWave wrote:(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... 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... Why don't you mention that?
Here, folks, is a classic example of what they teach you in law school. In lawmen's terms, it's called the "If you can't dazzle 'em with brilliance, baffle 'em with BS" technique. What, exactly, is Mr. Serra responding to here? What did the court decide "wasn't true" about what I just said? That Usana wanted a "court ordered Permanent Injunction against Minkow"? But, that's exactly what the court gave them! So that can't be it. Maybe that "Usana's primary goal was not to win damages from the libel component"? But, since Minkow still owes millions in restitution, how could that possibly have been their goal? And how could a court rule that something is or is not a plaintiff's "goal" (desired outcome)? The only other thing it could be is the line "They needed, and wanted, the stock manipulation charge to go forward..." and that it was their "strongest count". But, again, that's exactly what the court did agree with!
This response was nothing more than a poorly executed lawyer's trick.
wserra wrote:...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.
Yes, that was what the suit was based on for about, oh, a month. Then it was based on stock manipulation (for about 15 months) because of even stronger evidence that supported that charge, which also would have still ultimately involved Usana having to prove Minkow's claims of illegality to be false, and still would have ultimately resulted, had they won, in an injunction against him forcing him to remove his claims.
But I do admire how nicely you've veered the discussion away from the actual point – that being, all the ways Usana was "legally vindicated".
wserra wrote:Judge Campbell dismissed the heart of USANA's case against Minkow. That's not "legal vindication".
Considering Usana achieved the exact outcome from this suit that they were striving for (an injunction), I'll leave it to the reader to decide if the "heart" of Usana's suit was thrown out. And you're right. Her throwing out that facet of their case was not "legal vindication". This was:
SEC investigation: No evidence of any illegality;
Federal court in Shareholder suit: No evidence of any illegality;
Derivative class action suit: Dropped by plaintiff;
Distributor class action suit: Dropped by plaintiff;
Damn... I'm sure I've mentioned all this before.
wserra wrote:And why don't you say so when you reach conclusions which are the exact opposite of the Court's?
But, you're conclusions are in exact opposition to the SEC's, the federal judge in the shareholder suit, etc. etc. But then, we know why you didn't say anything about all these other cases because you just told us. You didn't know about them. Had you simply admitted that up front and dropped it, I'd have said "fair enough" and done likewise. But, unbelievably, you are still trying to defend your point in spite of this overwhelming evidence of "legal vindication".
wserra wrote: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?
Um, you might want to take your own advice there, Mr. Serra. Since you apparently didn't even read all of my response, let alone the whole thread, allow me to fill you in on the part you skipped:
Yes, Minkow shorted Usana's stock. AND... he made $61,000 from those put options, AND... he was paid $250,000 by fellow felon Sam Antar (did I mention he, like Minkow, was convicted of stock fraud?) specifically for the anti-Usana report, who was also short Usana's stock, AND... Minkow was given a $100,000 "gift" by Antar, AND... this was all right before Minkow began his Usana investigation, AND... he was paid $50,000 specifically for the report by two hedge fund managers! And since you chose to defend this point, allow me to also include... Minkow wrote a negative report on Herbalife and shorted their stock right before the report was published, AND... shorted PrePaid Legal's stock right before his negative report on them was published! That's why the judge allowed the stock manipulation suit to go forward!
So I ask you again, Mr. Serra, and not rhetorically... did you really not know about all of this?
wserra wrote:MWave wrote: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.
Another blatant dodge. We all know there was a sealed, private settlement. I was clearly and specifically referring to the Final Court Order granting Usana an injunction against Minkow issued by the judge! If this was all part of the private settlement, then why would the judge have ordered an injunction? Why didn't the judge just say, the parties have agreed to a settlement involving Minkow ceasing his attacks, and just allow the suit to drop? Again, Mr. Serra, this is not a rhetorical question.
wserra wrote:MWave wrote: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.” 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".
I don't know about law school, but in debate class they referred to this technique as being a combination of the "Rhetorical" (or "cap") response, along with some old fashioned reverse psychology thrown in.
Note that my original argument was that Mr. Serra was wrong in stating the judges ruling "established sufficiently the truth of (Minkow's) pyramid/overpriced-product and similar claims." I then countered that Minkow proved no such thing, nor did he even have to, as the only burden was on Usana to DIS-prove his claims. That is, had Minkow proven Usana was a pyramid, then they were a pyramid (SEC investigations and federal judge rulings aside). But if Usana failed to DIS-prove his claim, then they may or may not be a pyramid, they just failed to show enough evidence to take Minkow's statements from the realm of protected "opinion" to "libel". From a legal standpoint, as Mr. Serra most certainly knows, there is a Grand Canyon sized cap between the two legal criteria.
But, now go back and really read his rebuttal. He has essentially verified my original statement! The way this works is that you're always taught in debate (and I assume law school as well) to never allow a point go unanswered, even if you simply have to restate your original point over again. It will at least create the illusion of a response. And here, Mr. Serra has employed a cute little trick where the reader (or jury) will hear both points, think the second point sounded right - because, after all, both points are the same - and then assume the respondent surely wouldn't be supporting his opponent's point, so they must have misunderstood the first point, and it has just been successfully rebutted.
Actually, Mr. Serra, that might have worked during a live debate
wserra wrote:MWave wrote: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".
I guess you also didn't read the docket where Usana moved to have venue changed to Utah - and succeeded.
So, the concept that Usana might have been victorious in the libel charge in most other states, but failed in CA due to their exceptionally higher standard of proof, is not a reasonable point to make? Are you saying that if you were pleading my case, and standing in front of a jury, you would not have made the same point?
wserra wrote:MWave wrote: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".
The level of irony in that non-response is profound.
wserra wrote:MWave wrote: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!
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... 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.
Because they didn't meet certain evidentiary deadlines! Again, you're playing word games. Do you have a rebuttal to my claim, or don't you?
You see, Mr. Serra, I actually did read the dockets!
wserra wrote:MWave wrote: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.
For those of you who don't own a set of Verbal Advantage CDs like Mr. Serra, "perspicacious" means "having keen mental perception and understanding; discerning." So I think, again ironically, he was going for sarcasm there. But notice, no where does he actually answer this simple yes or no question.
wserra wrote:MWave wrote: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.
Could you actually answer the question, please? Did you really not know about all of these "legal vindications" and your original challenge to this statement was just an honest mistake, or were you fully aware of them and was hoping to deliberately deceive the readers of this board?
It's a fair question.