Kimkins Faux Dieting

Kimkins July 2009 Newsletter has arrived. One of the articles is a recycled piece from last year (or the year before) called: Are You Faux Dieting.

I think it is fitting that Heidi Diaz writes this article. She certainly looks as if she is an expert. I would assume that she can describe all these "faux dieting" pitfalls from her own experience during the last 10 years when she seems to have failed again and again at any weight loss attempt. Assuming that she has even tried her own diet.

In her Faux Dieting article, she mentions things like "make a whole hearted 100% commitment to my weight loss plan," "When are you going to suck it up and finally do it?" and "It boggles the mind to hear the excuses we give ourselves for remaining fat and undisciplined."

While Heidi Diaz certainly can be seen as an expert in "faux dieting" it boggles my mind that she has the gall to imply that she has been successful herself. Do as I say and not as I do?

Kimkins SPAM

I am banned from Kimkins. Since September 2007. But I still receive newsletters, recipes and emails from Kimkins.con. Several times per month.

It doesn't matter how many times I unsubscribe. The emails keep on arriving.

I wonder if Heidi Diaz knows that she is in violation of the CAN-SPAM act.

From the FTC (Federal Trade Commission) website:

What the Law Requires

Here's a rundown of the law's main provisions:

• It bans false or misleading header information. Your email's "From," "To," and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email.
  
  
• It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.
  
  
• It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. You may create a "menu" of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender.
  
  Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial email. When you receive an opt-out request, the law gives you 10 business days to stop sending email to the requestor's email address. You cannot help another entity send email to that address, or have another entity send email on your behalf to that address. Finally, it's illegal for you to sell or transfer the email addresses of people who choose not to receive your email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.
  
  
• It requires that commercial email be identified as an advertisement and include the sender's valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you. It also must include your valid physical postal address.

The emails from Kimkins.con fulfill these requirements, with the exception of the "opt-out."

I don't doubt that Heidi will blame "technical glitches" or duplicate databases and email services but the Law doesn't allow for such an excuse. It clearly says that you have to honor the opt-out and stop sending emails within 10 days.

The FTC also spells out the penalties:

Penalties

Each violation of the above provisions is subject to fines of up to $11,000.

As Heidi does not seem to be aware that she is in violation of this law (or does not care) I made sure that the FTC knows about her spamming. It is very easy to submit a complaint on the FTC website.

Kimkins Cyber Attorney

Since when does legal correspondence take place via email? Heidi Diaz' attorney, Peabody, apparently thinks that this is a proper form of communication.

Is this something new approved in legal circles that I am just not aware of? All my dealings with attorneys have always involved written letters by mail or fax.

To me, there seems to be a reason for this. There is no easy way to tell WHO sent an email. There is no easy way to tell if an email was received (served). How can you know it doesn't end up in a spam filter that the recipient is never checking?

Nevertheless, Peabody keeps on sending "official" Cease and Desist emails to anti-kimkins blogger. Affiliatescams has posted the email she received. Note that her email wasn't even sent directly to her. Unbelievable. But then nothing should really surprise us when it comes to this Kimkins saga, should it?

Also, read the comments to Affiliatescams' post. One blogger (Becky) received a Cease and Desist as a blog comment. Blog comment! How can that be considered Service of Process?

So what is the purpose of these Cease and Desist emails and comments? Peabody says to Affiliatescams: "demand is hereby made that you immediately cease and desist from making any further derogatory or untoward comments on your blog(s) regarding my client and her business interests".

What about the First Amendment? Consumer rights?

I am a disgruntled (banned) customer of Kimkins and have the right to express my dissatisfaction with their service (or lack thereof). My blog certainly has a lot of untoward comments regarding Heidi Diaz but that is less of my doing that hers. If Heidi had not flooded the internet with her lies and fraudulent pictures, I would not had anything to write about.

While it might be beneficial for Peabody (billing hours!) to write these emails, we expect that he will be busy with real legal actions soon. There is an unprecedented hearing set for a Motion for Summary Judgement set for August 24. Read about it on Kimkins Class Action Lawsuit blog, and mark your calendars.

Kimkins Plantiffs Depositions

The five principal plaintiffs in the Class Action Suit against Kimkins have been deposed by our lawyer John Tiedt and Heidi's lawyer Peabody.

I have no details about what was covered during the depositions, but in my opinion it would be a fairly simple process to determine fraud on the part of Heidi Diaz. For example:

Q: Did you sign up for the Kimkins Diet based on Heidi Diaz' claim of losing 198 pounds in one year and maintaining that weight loss for 5 years?
A: Yes.
Q: Did you believe that the pictures Heidi posted as her own were indeed true pictures of herself?
A: Yes.
Q: Would you have paid money to Heidi Diaz if you knew that these claims were not true?
A: No.

Case closed.

Now, I think the depositions were a little more involved than this but I can not see how Peabody could argue (on behalf of Heidi) that there was no fraud. Especially as she has admitted the fraud herself during her depositions.

Peabody can hardly claim that the five principals are not representative of the class either. Were we not all equally defrauded of our membership fee based on Heidi's false claims?

The court order for Class Certification has been posted on the Riverside Court website. Or, you can read it here: Court Order.

John Tiedt continues to excel. The court order states:

• Plaintiffs' claims are typical of the claims of the other members of the class
• All requests for judicial notice on behalf of Plaintiffs are granted
• Defendant's evidentiary objections have been overruled

Is this the beginning of the end of Kimkins.con?

Kimkins Class Action Certified

Two years after the now infamous Kimkins Woman's World article came out, there is now a certified Class Action Lawsuit against Kimkins.

The certification was actually granted back in January 2009 but it was deemed an invalid decision due to Heidi Diaz of Kimkins having filed for bankruptcy just days prior. With the bankruptcy suit being dismissed, the certification hearing was put back on the case agenda and certification was finally granted.

For the January hearing, Heidi did not bother to file any opposition to the motion for certification. She surely relied on the bankruptcy to resolve the issue for her. However, the end result was just a few months delay.

This time, she did file an opposition. Or, her lawyer did, Mr. Peabody. He tried to claim that the principals were not representative of the class and therefore each plaintiff would need to sue Heidi individually.

It's hard to understand his reasoning for this claim. The lawsuit is not about the nutritionally bankrupt Kimkins diet, but about fraud. The fraud consists of lying about her own weight loss and using pictures of other people for herself and other "success" stories.

The claim by the plaintiffs is that we all paid money to Heidi Diaz based on her fraudulent claims of her own successful weight loss using her diet. How can the principals NOT be representative of the class?

I would like to thank ALL the principals that represent me and the other plaintiffs. I know that there is work involved on their part; papers to fill in and send to our lawyer John Tiedt, phone calls and depositions. Thank you all for hanging in there during this long process!

Why I Like Kimkins

"Why I Like Kimkins" is the topic for the Kimkins essay contest. Affiliate Scams and Prudentia already wrote their essays. Somehow, I don't think they will be among the winners.

So who could write the winning essay? One of the success stories already featured on the Kimkins website? Someone that lost 144 pounds in a year by eating like this:


This is the boot camp menu that was recommended during the time this success story lost her weight.

This example provides:
Calories: 594
Fat: 26 grams
Carbs: 16 grams
Protein: 74 grams

So who would like to eat like this for a year? This is what she said in her success story:

"Being in ketosis has really helped me not have cravings and be able to pass up temptations. This journey has been so amazing! Many people say they could never do this because they love carbs, breads, sweets, etc. Well, so do I! I eat chicken and eggs almost daily and still love them!"

So where is she today? Trying to maintain, or rather, trying to take off 20 regained pounds.

"I am plugging away, but frustrated that I am sticking to it and working out and the scale is not going down! This is when I want to just give in and eat what I want, but then I do further damage! I must be strong! When I was losing the first time, I didn't let myself have the option of eating something not on Kimkins, I need to think that way now!"

So how can this be given a positive spin for the topic "I Like Kimkins"?

I don't know. I can just find reasons why I do NOT like Kimkins. Like having to stay on starvation level of calories to maintain any weight loss.

Kimkins Essay Contest

Heidi Diaz is giving out prices for the best essays about how weight loss has improved life.

Perhaps she should save herself the trouble and just declare Kimmer the winner. Who can top her story?

Here is an excerpt from the email interview she did with Jimmy Moore, talking about her fabricated weight loss success:

"Losing 200 lbs has literally been like freeing an albatross from around my neck. I was so desperately unhappy. Despite lying to myself that my size didn't matter, and although I was blessed with good health despite 300+ pounds, I knew I was harming my body.

Now, a slim size 4, I look back and wonder what took me so long to get serious? I now fit into theater seats without even touching the arms! Seat belts aren't anxiety provoking. My confidence has soared! No longer do I fear developing diabetes. Few people are aware that it doesn't take very much extra body fat to develop Type 2 diabetes and once you do, it's for life. You can manage it, but the damage to cells never disappears.

But probably the most blessed part of being thin and healthy is the pride my children have in me. No longer do I wonder whether they might be embarrassed by their 318-pound mom at school events or the mall. It almost seems as though they show me off!

Heck, I can even tie my shoes – no more slip ons!

I don't ever want to regain my weight. As a reminder, I hung onto a pair of size 26 jeans which I keep hanging in a corner of my closet. I bring them out once a week and try them on. Once again, I can't believe I was ever that big! What was I thinking?"

Of course, this story is pure fantasy. Kimmer likely was still 300+ pounds when she wrote it, judging from a photo taken about half a year after the interview.


If you want to read some REAL Kimkins Diet stories, head over to the Kimkins Survivor blog.