Motion for Class Certification

The motion for Class Certification for the Lawsuit against Kimkins.con was filed last week. It is an impressive document that details many of the lies told by Heidi Diaz in her efforts to attract customers to her website.

The motion has an excellent summary of why a Class Action Lawsuit is justified. The entire document can be read on the Riverside Court website (look up RIC483005 or search on Diaz, Heidi).

An excerpt from the motion (edited to shorten):

The Unraveling of America's Worst Internet Diet Scam.
Almost all of the material representations of the Kimkins.con website and advertisements were in fact false. The success stories were pure fiction and photographs were stolen from other Internet sites. The Kimkins diet was not ever proven safe or effective.

"Kimmer", aka Heidi Diaz, never lost 198 pounds in 11 months. "Kimmer" was purely a fictional character created to defraud the public. The perpetrator of this scam is Heidi Diaz, who habitually lied about the Kimkins diet and her alleged weight loss on the Internet for years from her home in Corona, California. She regularly used false names on the Internet, lied about her weight loss, created countless false success stories, falsely claimed celebrities such as Jessica Alba and Lindsay Lohan used her diet, lied about the safety and efficacy of the Kimkins diet, falsely impersonated consumers in order to induce sales, used unlawful labels and Metatags to misdirect Internet traffic and fraudulently tried to conceal her assets to avoid repaying customers. Heidi Diaz was caught red-handed but still continues to engage in false and misleading advertising on the Internet while making a substantial profit.

1. Kimmer is not Kim Drake, the thin diet expert: Kimmer is Heidi Diaz, a morbidlv obese Internet swindler from Corona, California.
The beautiful woman in the red dress featured on the Kimkins Internet site named Kim Drake aka "Kimmer," does not exist! Ms. Diaz also admitted that she had posed as Kimmer in a "public apology" that was posted on Kimkins.con after she was successfully exposed by an investigative report on the KTLA news. The Kimkins "poster girl" is actually a model named Lesya whose image was lifted by Heidi Diaz from a Russian bride Internet site. Heidi Diaz used her own picture to depict the "before Kimkins diet" image of Kimmer, and unlawfully misappropriated the photograph of Lesya as the "after Kimkins diet" image of Kimmer. Heidi Diaz has been and remains a morbidly obese woman.

Heidi Diaz created false identities to sell or promote the Kimkins Diet. She admitted under oath that she had used such names as Kimmer, Jennifer Danser, Brad Curtis, Kimberly Stewart, Kimberly Drake, Vanessa Sharp, Dennis Sharp and numerous other monikers.

2. Use of False Pictures of Kimmer.
Under oath and by way of public apology, Heidi Diaz has established that she has used false pictures to depict the weight loss success story of Kimmer. Under oath she stated that the picture of the Kimmer was not her and was actually "a model."'M s. Diaz' decision to use a false picture to advertise Klmkins was even questioned by her technical support staff. Her technical consultant, Aliyar Firat, wanted to use a real picture of Heidi Diaz but Ms. Diaz refused and insisted on using the picture of the model for Kimmer's after diet photographs.

3. Heidi Diaz Lied About Her Alleged Weight Loss.
Under oath, and by way of public apology, Heidi Diaz admitted that she lied about the alleged weight loss success of Kimmer on Internet and print advertisements. She admitted that her statement that Kimmer lost an amazing 198 pounds in 11 months was in fact a statement that she prepared but was false. Ms. Diaz also admitted that the woman identified as Vanessa does not actually exist and her story was a fictional creation by Ms. Diaz.

With respect to Kimkins' homepage, Ms. Diaz admits that her testimony on said homepage was derived from the interview wherein she claims to have lost a purported 198 pounds in 11 months was false. Variations of the homepage of Kimkins.con were accessible to the public throughout the class period.

To promote Kimkins, Heidi Diaz made phenomenal misrepresentations on the Internet program known as the "Livin La Vida Low Carb" show hosted by Jimmy Moore on July 19, 2007. Heidi Diaz also stated in the interview that she had kept the weight off for a total of 5 to 5 1/2 years. At the time of the interview, Heidi Diaz weighed over 300 pounds. She was photographed several times shortly after the interview.

4. Material Misrepresentations Contained in the Woman's World
Magazine Article "Make Heidi Diaz a Millionaire."
In June of 2007, the story of Kimmer and the Kimkins diet reached millions of Americans. Heidi Diaz admitted that she supplied her own "before diet" photograph for the article but used a photograph of another model for her "after diet" photograph. When asked where she obtained the picture of the model, she stated: "from the Intemet. I don't remember the site. Just again, I wanted to be anonymous." Ms. Diaz does not dispute the fact that she also used the false name "Kim Drake" and another false picture in the article.

Her statements in the article were a phenomenal act of fraud by Heidi Diaz. In the article she falsely stated she had lost 200 pounds in 11 months. She also falsely represented that she soared up to 318 pounds after a serious injury. She falsely claimed she went from a dress size 26 to a size 6. As a result of such blatant false advertising, sales shot up immediately. In June of 2007, there were 15,330 paid memberships.

5. The Use of Fortv-One (41) False Success Stories with Misapproprated Photographs.
Numerous Kimkins' success stories used on the websites and on advertisements were FALSE. The photographs featured in each of the success stories were lifted from Russian Bride websites. Ms. Diaz admitted that each and every person featured did not use the Kimkins diet and did not lose the weight as advertised.

She admitted to fabricating success stories and using false photographs in connection with the advertisements. She also created fraudulent success stories on the Kimkins Newsletter which was accessible to the general public and designed to promote Kimkins.con subscriptions.


6. False Celebrity Endorsements.
Heidi Diaz admitted that she had represented to the public that celebrity Jessica Alba, a famous actress, used the Kimkins diet. She testified that she did not know if Jessica Alba used the diet but repeated the "rumor" on the internet. She admitted in retrospect, she thought it was deceptive to repeat the rumor that Jessica Alba used the Kimkins diet.

Heidi Diaz also falsely claimed and advertised that Lindsay Lohan was a user of the Kimkins diet. In fact, she misappropriated a picture of Lindsay Lohan wearing a T-shirt. The Kimkins logo is superimposed on Ms. Lohan's t-shirt. Ms. Diaz admitted that she has never had any contact with Lindsay Lohan. She also testified that she never believed the photograph of Lindsay Lohan with the doctored image displaying Kimkins across Ms. Lohan's chest was real.

7. Unlawful Use of Labels and Metatam to Misdirect Internet Traffic.
Many of the Kimkins.com advertisements have labels or tags that are used as a basis to direct traffic to the Kimkins.com site. Heidi Diaz was an expert on how to misdirect traffic on the Internet. For example, Heidi Diaz took a popular Internet topic such as the "Geico Caveman" which generated a lot of Internet activity at the time. Heidi Diaz placed the labels: "Caveman, Geico, Kimkins" together so that when "Geico" and "Caveman" would be searched, the Kimkins advertisement would appear. Heidi Diaz admitted that she prepared the graphic and text without the permission of the Geico Insurance Company. Heidi Diaz admitted that labels were also used as tags and that if a search were conducted with respect to the terms "Geico" or "Caveman," the subject advertisement would show up in a ranking!'
Another example of label/tag misdirection occurred on the Kimkins Blog. Ms. Diaz used the following labels: "Celebrity Diet Secrets, Christie Brinkley, Gwyneth Paltrow, Kimkins, and low carb."

8. No Lifetime membership as Promised by Heidi Diaz.
Members of Kimkims.con were promised a one-time payment for a lifetime membership. However, if anyone complained of becoming ill on the diet, which was a common occurrence, said member would be immediately terminated. In fact, if Heidi Diaz or any of her minions decided they did not like you, you would also be terminated. Heidi Diaz testified that troublemakers would be blocked from full access to the website. She claimed to have no criteria for terminations. She stated that the term "troublemaker" would be defined by each administrator!

9. Advertised Lies and Misrepresentations.
Although Heidi Diaz is the sole owner of Kimkins and responsible for all of the content on its website, she has made the miraculous claim that certain representations appeared on her website without her knowledge.

Another classic misrepresentation repeated throughout the Kimkins advertisements was that the Kimkins diet was a "fast and permanent" way to lose weight.

Heidi Diaz admits that no medical doctor has ever approved the safety or efficacy of the Kimkins diet."

Another amazing misrepresentation repeatedly stated that the Kimkins diet was thermogenic and that no exercise was needed to lose weight. Many other irresponsible statements were made by Heidi Diaz and it is anticipated that she may even try to claim that she was not responsible for everything stated on her own website. However, she did admit undeer oath that no one had access to her website other than her technical company, Clexus New Media. Ms. Diaz admitted under oath that in her best estimate, she only visited her homepage two times in the year 2007, despite being the sole owner of the website.

The Court already has on file numerous declarations and affidavits signed by purchasers of Kimkins.con memberships, who stated under oath that they relied on the representations of Defendant's weight loss claims when they decided to subscribe to Kimkins.con. The subject declarations and affidavits illustrate the consumers' reliance on the fraudulent representations of Heidi Diaz. Heidi Diaz admits she lied and the sheer volume of lies proves her intent to deceive her customers.