Notice of Pendency of Class Action

Here is the notice that has now been approved by the Court. Please pass this on - forward it to every party you might think remotely interested, including media outlets you think may have an interest in sharing this information. If you are familiar with anyone who joined Kimkins, please direct them to this notice so that as many of the 40,000 people affected by Heidi's little scam as possible will have the opportunity to know they are part of the class and can opt out, preferring instead to allow Heidi to keep their money, or, perhaps, retaining their right to sue her independently.

Hear that banging sound? Just another handful of nails ...

NOTICE OF PENDENCY OF CLASS ACTION

TO: EVERYONE WHO PURCHASED A MEMBERSHIP TO KIMKINS.COM THROUGH THE KIMKINS.COM WEB SITE (www.kimkins.com) FROM JANUARY 1, 2006 TO OCTOBER 15, 2007

PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS-ACTION LAWSUIT THAT IS CURRENTLY PENDING IN RIVERSIDE COUNTY SUPERIOR COURT, IN RIVERSIDE, CALILFORNIA.

INTRODUCTION

1. On May 20, 2009, the Riverside County Superior Court, located in Riverside, California, issued an order certifying this case to proceed as a class action.

2. The plaintiffs are six individuals who bought memberships to kimkins.com through the kimkins.com Website (www.kimkins.com) from January 1, 2006 to October 15, 2007. The defendants are Heidi Diaz, an individual, and Kimkins (also known as Kimkins.com), a business entity that conducts business in Corona, California.

3. The plaintiffs contend that Diaz and Kimkins.com induced them into buying memberships for kimkins.com through false and misleading information provided on the Kimkins.com Web site. The plaintiffs contend that the defendants violated California Business & Professions Code § 17200, et seq., which authorizes courts to provide relief from unfair, unlawful, and fraudulent business practices. The plaintiffs also contend that Diaz and Kimkins.com violated common law prohibitions against fraud and negligent misrepresentation.

4. This notice provides you with information regarding the litigation, including the plaintiffs’ claims against the defendants and the current status of the litigation. This notice also provides you with information regarding the court’s class-certification order.

THE LITIGATION

The Plaintiffs’ Claims

5. This lawsuit is based on the plaintiffs’ claims that Diaz and Kimkins used unfair, unlawful, or fraudulent business practices to induce them into buying memberships to Kimkins.com. This lawsuit is also based on the plaintiffs’ claims that the false and misleading information contained on the kimkins.com Web site constituted fraud or negligent misrepresentation by Diaz and Kimkins.

6. Here’s a list of the kinds of misconduct that the plaintiffs have alleged:

• that Diaz and Kimkins concocted a false persona, “Kim Drake” or “Kimmer” to sell memberships to Kimkins.com
• that Diaz and Kimkins misled potential members into believing that “Kim Drake” was real by using photos of real women and then falsely claiming that the photos depicted “Drake”
• that Diaz and Kimkins posted lied about “Drake’s” purported weight loss
• that Diaz and Kimkins provided false or misleading information to Women’s World magazine
• that Diaz and Kimkins fabricated 41 “success stories” and published on the Kimkins.com Web
• that Diaz and Kimkins made up celebrity endorsements
• that Diaz and Kimkins misused labels and metatags to steer Internet traffic to the Kimkins.com Website, in violation of the law
• that Diaz and Kimkins misled potential members into believing that they were buying lifetime memberships, when in fact Diaz and Kimkins.com terminated memberships at their whim
• that Diaz and Kimkins intended to mislead potential members and assumed that potential members would rely on her misrepresentations.

The Defendants’ Position

7. Diaz and Kimkins have denied all allegations of wrongdoing and liability, and they continue to deny that they have done anything wrong. Diaz and Kimkins also have asserted various affirmative defenses to the plaintiffs’ claims.

THE COURT’S CLASS-CERTIFICATION ORDER

8. In an order filed May 20, 2009, the Court granted the Plaintiffs’ Motion for Class Certification. The Court certified for class treatment the plaintiffs’ claims for equitable relief, including disgorgement of the subscription fees paid to Diaz and Kimkins by the plaintiffs and the members of the class.

9. The certified class is defined as all individuals who purchased the Kimkins.com diet membership on-line from the Kimkins.com Web site from January 1, 2006 through October 15, 2007.

THE COURT HAS NOT EXPRESSED ANY OPINIONS
REGARDING THE MERITS OF THE PLAINTIFFS’ CLAIMS

10. The Court ordered that this notice be provided to advise class members that this case is pending and that the Court has certified the case to proceed as a class action. You should not consider this notice or its mailing to be a statement by the Court that the plaintiffs are right or that their claims will prevail.

INSTRUCTIONS TO CLASS MEMBERS

11. You do not need to do anything to remain a member of the class. If you bought a Kimkins.com diet membership on-line from the Kimkins.com Web site from January 1, 2006 through October 15, 2007—including either of those dates—you are automatically included in the class. Your rights will be represented by the plaintiffs and their attorneys. You will not be personally responsible for any attorney fees or for the any of the costs of this litigation.

OPT OUT OF CLASS ACTION LAWSUIT

12. You have the opportunity to opt out of the class action lawsuit as detailed herein. If you incurred a personal injury as a result of using the Kimkins.com aka Kimkins Diet, you have a right to opt out. Notices to opt must be sent to jtiedt@tiedtlaw.com or mailed to Tiedt & Hurd at 980 Montecito Drive, Suite 209, Corona, California 92879.

WHERE TO GO & WHOM TO CONTACT
SHOULD YOU NEED MORE INFORMATION

13. This notice provides only a brief summary of this litigation. For further details, you should take one or both of the following steps:

• Review the documents in the Court’s file for this lawsuit. Many of these documents may be viewed or obtained on-line at the following URL: http://public-access.riverside.courts.ca.gov/OpenAccess/ . You also may review the Court’s file in person by going to the Office of the Clerk of the Court for the Riverside Superior Court, during regular business hours. The Clerk’s office is located at 4050 Main Street, Riverside, California 92501.

• Write a letter to the attorneys who are representing the plaintiffs and whom the Court has appointed to represent the class. Here are their names and their contact information:

John E. Tiedt & Marc S. Hurd
Tiedt & Hurd
980 Montecito Drive, Suite 209
Corona, California 92879

Michael L. Cohen
Michael L. Cohen, a PLC
707 Wilshire Blvd., Suite 4100
Los Angeles, California 90017

Ray Moore
Moore Winter McLennan LLP
701 N. Brand Blvd., Suite 200
Glendale, California 92103-4232

If you decide to contact one of the plaintiffs’ attorneys, please do so in writing. To make it easier for them or one of their staff members to respond, however, your letter should include both your e-mail address and your telephone number.

There are estimated to be as many as 40,000 members in the class. So please, DO NOT CALL THE COURT OR ATTEMPT TO CONTACT THE COURT BY E-MAIL.


DATE: ___________________________, 2009


____________________________________
Hon. _________________________,
Presiding Judge

Tick Tock

Heidi Diaz continues to elude justice. However, on Thursday, October 15th, the court will hold a hearing, hopefully to rule on John's motion for summary judgment. Which direction it will go, nobody knows at this date except the judge. If she and her attorney had a brain in their collective heads, they'd end this charade of a defense. Heidi, you can run, but you will some day have a judgment against you, the housewife who has nothing (yeah, right). The long-reaching arm of the ducks is patient and persistent, if nothing else, and that goes double for John Tiedt and his team. You can delay the proceedings until we're all in a nursing home, but there will be a conclusion to this one day, and it's not looking too good for you. Tick tock.

A Class Act(ion) Part Deux

Some recent court developments deserve some attention. In a previous post, I described the bankruptcy filed by Heidi Diaz. It was filed just a few days before the January 14th court hearing to rule on the motion to make the lawsuit against Heidi a class action. The January 20th hearing went forward in spite of the bankruptcy filing. The judge approved the motion. However, the court's ruling could not be filed because the bankruptcy court held jurisdiction at the time.

John Tiedt hired a bankruptcy attorney to join his team. I love people who know their limitations. Clearly, John knew he needed bankrutcy expertise, and he sought it. On May 25, 2009, the bankruptcy was dismissed, paving the way for a second look at class action.

On May 20, 2009, John Tiedt again appeared before the court. The honorable Michael B. Donner considered and granted the motion for class action, agreeing that fraud had been committed. Because there was no longer a pending bankruptcy holding jurisdiction, the court filed the grant and we now have a certified class action. Part deux.

On June 2, 2009, John Tiedt filed a motion for a summary judgement. As of this writing, the hearing for that motion is set for August 24, 2009. John, we cannot thank you enough.

A Class Act(ion)

January 14th was a great day of vindication in Duckdom. After many months of scoffing and being told repeatedly by those who were sure they knew the case better than we did that it would never happen, the judge granted class action certification in the case against Heidi Diaz. John Tiedt is a rare breed of attorney. He has a strong sense of right and wrong, and a tenacious spirit that makes him want right to triumph against wrong. I have said many times to many people over the past year plus, if you don't see anything wrong with what Heidi Diaz did, then you have no moral compass. That was my less-than-tactful way of telling them they are just as bad as Heidi is. John Tiedt is at the opposite end of the spectrum.

So my hat is off to John Tiedt, a class act of a man and attorney if ever I saw one! Well done John, and let's move on to the next phase of this quest for justice.

Heidi Diaz files bankruptcy!

Heidi Diaz had tongues wagging a few weeks ago when her attorney was taken off the case. That is nothing compared to what she did today. There are no words to describe it. The paperwork says it's a personal bankruptcy, and there is no mention of Kimkins. I suppose we'll learn more as time goes on, but I will close with the words of John Tiedt, the attorney handling what will eventually become the class action suit against Heidi.

Kimkins Class Action Lawsuit attorney, John Tiedt says, “We will not be deterred. We will not stop until we have justice. We anticipated the possiblity of bankruptcy. This is Ms. Diaz’s third bankruptcy. We are now obtaining a bankruptcy litigator to join our team. Our attack on the bankruptcy will start immediately. I will never stop.”

This is a man on a mission. Heidi Diaz, you have a tiger by the tail!

Out With the Old, in With the New

Oddly enough, this post is nothing about Heidi Diaz. I'm taking a break from her. As a year draws to a close, we cannot help but to look back upon the last one and reflect on what we did, what we didn't do, and what might have been. At the end of the year, introspection is a natural thing. So as you take inventory of the past year, I ask you to contemplate what lies beyond this life. For some, the subject of this video brings a blessed hope. For others, fear and dread, and still for others, no meaning at all. Happy New Year!

What's In a Word?

The following paragraphs come from an e-mail sent by Heidi Diaz to Jeannie Baitinger, who was her employee at the time. To read the e-mail in its entirety, you can visit Jeannie’s blog and read the post “Stealing and Justifying It”.

Heidi wrote:

“Thanks for the nice words. The thing is, we all operate on trust on the internet. Most of our vendors charge up front, but the tech guys and affiliates work a month behind. They trust that I’ll pay them. I can’t betray that.

If we assume for one minute that maybe I’m NOT the person “they” are describing … maybe I’m the person you know … then it’s easier to understand. I don’t screw people over. I couldn’t live with myself. Really, I couldn’t.

Let me take that back. I resented Catherine getting 50% of the profits. She hadn’t done anything to build the Kimmer/Kimkin’s reputation. She didn’t have a reputation to help bring members. Her job was marketing which was … well, I’m not sure what she did because it didn’t produce sales.”

For the sake of retaining the context, I have quoted the first three paragraphs in the e-mail, but the part I am concerned with is at the end of the third paragraph. Heidi was speaking disparagingly about Catherine, Heidi’s original business partner who helped her launch the Kimkins website. Let’s look at the last part of the last sentence – “well, I’m not sure what she did because it didn’t produce sales.” Did anything in that sentence stand out to you? To me, there is a glaring issue in those words.

If you read her depositions, Heidi claims she runs the website for the purpose of motivating people and helping them lose weight. She would have us to believe that she’s a great philanthropist who cares deeply about people and wants only to help them. It’s the reason she runs the website, after all. But what are the words she uses in her e-mail to Jeannie to describe the members she claims she wants to help? Sales! They’re not people she has the opportunity to help. For her, it boils down to cold, hard cash. Members aren’t people to her, they are sales. They represent money.

Let us not forget that in order to keep the money coming in, Heidi must sign up new members……ahem……she must sell new memberships. She claims that people like me who are telling the truth about her are cutting into those profits. We’re affecting her sales, so she’s SLAPPed some of us with a lawsuit. We’re not stopping her from helping people, we’re denying her the hard-earned cash of people her depositions say she wants to help. But do not ever forget that to her, they are nothing more than sales. It’s all about the money, people! When you live in the alternate universe, your words don't mean what people think they do.