Kimkins Class Notice

Although late, Heidi Diaz finally complied with the court order to post a notice about the class action lawsuit on her website kimkins.com. Or rather, she almost complied.

She was ordered to

THE COURT ORDERS THAT CLASS NOTICE SHALL BE PROVIDED THROUGH DEFENDANTS WEBSITE. THE NOTICE MAY BE THROUGH A LINK ON THE WEBSITE WHICH LEADS TO THE CLASS NOTICE.

She posted the notice with a link that is not functional. No doubt will she blame "technical difficulties." You would think after having had a website business for over two years, she would have learned some basic things. Like a simple file upload.

Just to show how easy it is: To open a pdf of the document, click this link: NOTICE OF PENDENCY OF CLASS ACTION

It took me all of two minutes to upload it to my website.

Of course, she could have made it even easier for herself by linking to any of the anti-kimkins blogs that have already posted the notice.

Hopefully the court will find Heidi in contempt and fine her for not complying with the court order in a timely fashion. Surely, even a person that is not familiar with web sites and web technology must find any excuse of "technical difficulty" to be ridiculous. Really, if she can not perform such a simple thing, she has no business selling membership to a website that she is running.

NOTICE OF PENDENCY OF CLASS ACTION

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

Kimkins Opt Out Notice

There was a court decision for the Kimkins Class Action Lawsuit on 10/27/2009. According to that decision, Heidi Diaz will be required to post an opt out on her website.

To me, the natural thing would have been to require Heidi to use her extensive spam database that sends out Kimkins Newsletters to all members, including us that have been banned. Of course, Heidi supposedly has "lost" all her records and it might be hard to prove that this isn't the case.

I'm looking forward to see the opt out notice. From the text below, it is clear that this has nothing to do with people wanting to support Kimkins and that think that this is a frivolous lawsuit. The opt out is meant to protect people that may want to sue Kimkins for personal injury. While the "injury" as such is not specified, my guess would be that the court had concerns about the numerous reports about health issues arising from following the Kimkins diet.

I'm also looking forward to the next hearing on 10/29/2009. Will we finally see an order to shut Kimkins.con down? However, the court site says "finalization of notice" for tomorrow's hearing so the end of Kimkins.con will probably take place at a later date. Lawsuits take time but I have no doubt it will happen.

COURTS SUBSEQUENT RULING ON 10/27/09 @ 08:30 FOR DEPARTMENT 05
10/27/2009 - 8:30 AM DEPT. 05

HONORABLE MARK E JOHNSON, PRESIDING
CLERK: M. MARTINEZ
COURT REPORTER: NONE
COURT SUBSEQUENTLY RULES:
ORDER REGARDING CLASS NOTICE: THE COURT FINDS THAT CLASS MEMBERS SHOULD BE ALLOWED TO OPT OUT IN CONNECTION WITH THE CLASS ACTION CERTIFIED IN THE ABOVE ENTITLED ACTION.
THE CLASS ACTION WAS NOT CERTIFIED FOR THE PERSONAL INJURY CLAIMS ALLEGED BY CLASS
PLAINTIFFS. FAILURE TO ALLOW CLASS MEMBERS TO OPT OUT OF THE ACTION MAY IMPAIR OR ELIMINATE POTENTIAL PERSONAL INJURY CLAIMS BECAUSE A JUDGMENT IN THIS ACTION COULD BAR RECOVERY IN ANY LATER PERSONAL INJURY ACTIONS BROUGHT BY CLASS MEMBERS AGAINST DEFENDANTS. (SEE HICKS V. KAUFMAN & BROAD (2001) 89 CAL.APP.4TH 908 924-925.)
THUS, IT APPEARS THAT THE OPPORTUNITY TO OPT OUT OF THIS CLASS ACTION IS NECESSARY. (SEE PHILLIPS PETROLEUM CO. V. SHUFFS (1985) 472 U.S. 797, 811-812.) ACCORDINGLY, PLAINTIFFS PROPOSED CLASS NOTICE NEEDS A STATEMENT WHICH GIVES POTENTIAL CLASS MEMBERS WHO MAY HAVE SUFFERED PERSONAL INJURIES AN APPROPRIATE CAVEAT REGARDING POTENTIAL PERSONAL INJURY CLAIMS, PROVIDES THE OPPORTUNITY TO OPT OUT, AND PROVIDES A PROCEDURE FOR OPTING OUT. (SEE CHAVEZ V. NETFLIX (2008) 162 CAL.APP.4TH 43, 57.)
IN ADDITION, PLAINTIFFS SUBMISSION DOES NOT EXPLAIN WHY CLASS NOTICE CANNOT BETTER BE PROVIDED THROUGH DEFENDANTS OWN WEBSITE TO ALL PERSONS WHO SIGNED UP THROUGH THE WEBSITE.
ACCORDINGLY, THE COURT ORDERS THAT CLASS NOTICE SHALL BE PROVIDED THROUGH DEFENDANTS WEBSITE.
THE COURT MAKES THIS DECISION BECAUSE THE LAWSUIT HAS ALREADY BEEN REFERENCED ON THE KIMKINS WEBSITE. THE NOTICE MAY BE THROUGH A LINK ON THE WEBSITE WHICH LEADS TO THE CLASS NOTICE.
FINALLY, ALL REFERENCES TO THE "PENDING MOTION FOR SUMMARY JUDGMENT" SHALL BE REMOVED FROM THE CLASS NOTICE.
NOTICE TO BE GIVEN BY COURT CLERK'S CERTIFICATE OF MAILING RE: SUBSEQUENT RULING
NOTICE SENT TO MICHAEL L COHEN A PROFESSIONALLAW CORP ON 10/27/09
NOTICE SENT TO MOORE WINTER MCLENNAN LLP ON 10/27/09
NOTICE SENT TO TIEDT & HURD ON 10/27/09
NOTICE SENT TO LAW OFFICE OF TIMOTHY P PEABODY ON 10/27/09
NOTICE SENT TO LAW OFFICES OF COTTLE & KEMP ON 10/27/09
NOTICE SENT TO COTTLE & KEEN ON 10/27/09

Kimkins Court Hearing

There was a hearing today for Summary Judgment for the Class Action Suit against Kimkins.

All the details are not out yet, but it was decided that Heidi has to post an "Opt-Out Notice" on Kimkins. The notice is also to be posted on one more site in order to reach as many class action members as possible.

The Opt-Out Notice will give the option for any eligible class action member to reserve the right to sue Heidi individually instead of taking part in the class action suit. I don't see it as likely that anybody would want to do this in this case, but it seems to be a requirement for any class action lawsuit that this option is provided.

So much for the lawsuit being dismissed, Heidi. I'm looking forward to seeing the Opt-Out Notice on Kimkins.con. And your explanation for it.

The End of Kimkins

Is that what we will see from the upcoming court hearing on October 15? Despite what Heidi Diaz claims, the case was not dismissed, the judge was just not ready to make a decision and postponed doing so. To my understanding, this didn't even have anything to do with the viability of the lawsuit. It had to do with an opt-out technicality for the class action members. (Typically, a class member is given an option to not partake in a class action lawsuit in order to be able to sue the defendant individually.)

Heidi seems to be struggling to keep kimkins afloat. The forum was moved to a new platform and without all the old posts from the previous years, it is very obvious how few members that are there. Her google ads have stopped. It's likely that they didn't result in many new customers and they are costly to run.

Heidi is most likely finding out that internet marketing is not all that easy. Without having the advertizement from a Woman's World article that draw customers, it's not easy to attract them to an obscure diet on the internet. Kimkins has outlived its fame. The only ones that are familiar with the name are people that know about the scam, and they don't work well as a customer base. Any new people coming across the website are likely not impressed.

I do hope that the court hearing on Thursday will result in Heidi having to close kimkins.con down. But even if there are further delays, I am positive that kimkins is a dying enterprise. It's just a matter of time. I can't see that Heidi would keep kimkin.con running as a service to the few members that are there. Judging from all the bannings, she is not really a caring person.

Of course, the hearing on Thursday might not even take place. Perhaps Heidi decided to file for bankruptcy again. But this time, I think she might have problems showing much income from kimkins.com. So why would a bankruptcy court allow her to restructure a business that doesn't even make money? Hopefully any bankruptcy lawyer she has hired would have informed her about this so we can avoid yet another unnecessary delay of the class action hearing.

The "New" Slimmer Kimkins

No, I don't think Kimmer herself has slimmed down, but the website has.

While Heidi Diaz has tried to copy the design from the old site, it shows that she doesn't have the graphics knowledge that her previous web techs had. Of course, it's costly to keep a professional team on board and when there is little income from new members signing up, Heidi apparently decided to take it over herself.

New Kimkins

Old Kimkins

The previous site was build on joomla and firebird forum which, while free, require some web program ability. The new site is using SMF (Simple Machines) forum software which is free and simpler to configure. If it were me, I would have invested in the very affordable vBulletin forum as it's very easy to use. And, that's what I did on my forum: Tipping the Scales to Health.

Did you notice that she has even changed the Kimkins logo? I recall that there was someone that showed how the original was copied from one of the Russian Bride websites, so perhaps this is an attempt of avoiding this being brought up in the ongoing Class Action Lawsuit.

The new site displays a lot of old success stories. People that are not seen on the Kimkins forum any more (if they were even there in the first place). Where are these people now? Unfortunately, I believe most of them have regained their weight. It happens more often than not following a starvation diet like Kimkins. I do hope they have found a more sensible weight loss program by now and are working towards health and not continuing the yo-yo cycle.

And it doesn't matter if Heidi is now trying to rewrite history. The class action lawsuit is still going strong. Heidi told her members that it had been dismissed, but that is not true. A decision for summary judgement was delayed, not dismissed. You can see for youself: Say NO to Kimkins has posted the pdf file of the decision.

Kimkins in the News

Guru Sued for Alleged Diet Scam

Kimmer about the Lawsuit

Heidi Diaz finally allowed a thread about the lawsuit on kimkins.con. AmyB reported on what Kimmer had to say in her post a few days ago: Why am I surprised.

What Heidi Diaz seems to have the most difficulty to understand is why her own weight would be an issue. Why her own failure at losing weight on the Kimkins Diet would reflect on the effectiveness of the diet. If that is really the case, why did she have to lie about it in the first place? Clearly, she knows that she would never have had any members if she had put up a real photo of herself.

She now argues that she has lost 100 pounds (several times!) and just couldn't keep it off. The diet works, in her opinion. So why would you want to starve off 100 pounds just to turn around and regain it all, even faster than you lost it? Possibly having damaged your health permanently in the process? To me, that just seems like self-inflicted torture.

Heidi also claims that members got what they paid for: a weight loss diet that works. That's not quite accurate. If Heidi cares to re-read her own promises on former front pages on the Kimkins.con website, she can easily see that Kimkins promised not only weight loss, but being able to maintain that loss. And, she offered up her own alleged weight loss success with 4 years maintaining at 118 lbs as proof (or 5 or 6 or 7 years, depending which version you read).

Heidi correctly says that the class action seeks an injunction against the Kimkins website; to have it shut down. Again, she can't really understand why and compares Kimkins with other diets like Jenny Craig and Weight Watchers where dieters also often end up regaining. She fails to see that these other diets don't necessarily jeopardize your health. If you did follow Kimkins as prescribed; 500 cals or less of lean protein and veggies, you more likely than not suffered health consequences. Just read the testimonials on Kimkins Survivors. We want Kimkins.con to be shut down so not any more unsuspecting, desperate, dieters get hurt.

Heidi also has a lot to say about money. She claims that the plaintiffs are all in the lawsuit to get back the money they paid for the membership. Nothing could be further from the truth, and I think Heidi knows this. I don't expect to see a dime in refund. I just don't want Heidi to get to keep the money she fraudulently obtained from me. And, I don't want Heidi to continue to operate a business that was built on fraud.

Count Down for Kimkins

Kimkins Yo-Yo Diet

Wikipedia:

Yo-yo dieting, also known as weight cycling, is a repeated loss and gain of body weight due to excessive dieting. ... The reasons for yo-yo dieting are varied but often include embarking upon a diet that was initially too extreme. At first the dieter may experience elation at the thought of loss and pride of their rejection of food. Over time, however, the limits imposed by such extreme diets cause effects such as depression or fatigue that make the diet impossible to sustain. The dieter reverts to their old eating habits, and with the added emotional effects begins to rapidly regain weight.

This kind of diet is associated with extreme food deprivation as a substitute for good diet and exercise techniques. As a result, the dieter may experience loss of both muscle and body fat during the initial weight-loss phase (weight-bearing exercise is required to maintain muscle). After completing the diet, the dieter is likely to experience the body's famine response, leading to rapid weight gain of only fat. This is a dangerous fat-cycle that changes the body's fat to muscle ratio, one of the more important factors in health. One study in rats showed those made to yo-yo diet were more efficient at gaining weight.

I find this being a very accurate description of the Kimkins Diet. And it has held true for the majority of her members.

Lately, the only "new" members showing up in the Kimkins forum are people that originally tried the diet around the time of the Woman's World article in June 2007. Lost a little weight then but could not stick to it. They are now returning as the "diet did work" the first time. No, it didn't. A diet you can not stick to does not work. A diet that does not lead to lifelong weight loss maintenance is not even worth trying, in my opinion. What's the point of losing the same weight over and over again?

The good news with the returning members is that they don't generate any new revenue for Heidi Diaz. As they purchased a life time membership, there is no additional fees that she can add to the fraudulently obtained money she already has.

The Kimkins board has undergone changes since the June 2007 peak. There is very little activity and there is no peer pressure to drop calories to starvation levels. Sure, lean proteins with minimal fats are still recommended, but most of the members fall off or cheat on a regular basis. Even the few maintainers are not doing a very good job at maintaining these days.

Despite that the board does no longer appear to promote a diet that would be dangerous to your health, it still should be shut down. The entire venture was based on fraud and should not be allowed to continue in any form.


[The rat study Wikipedia references might not fully apply to people, but the results would scare me off any extreme diet attempt. Even if I would be able to starve myself all the way to goal, How would I deal with the "four-fold food efficiency" while trying to maintain? Continue to starve the rest of my life?

This study examined the metabolic effects of weight cycling, i.e., repeated periods of weight loss followed by regain. There were three groups of adult, male Sprague-Dawley rats: (1) Chow Controls (a normal weight control group fed chow throughout); (2) Obese Controls (animals fed a high-fat diet throughout); and (3) Obese Cycling (obese animals cycled through two bouts of caloric restriction and refeeding). The cycled animals showed significant increases in food efficiency (weight gain/kcal food intake) in the second restriction and refeeding periods compared to the first, i.e., weight loss occurred at half the rate and regain at three times the rate in the second cycle. Several physiological changes were associated with this cycling effect. At the end of the experiment, cycled animals had a four-fold increase in food efficiency compared to obese animals of the same weight who had not cycled. These data suggest that frequent dieting may make subsequent weight loss more difficult. The possible metabolic and health consequences of “yo-yo” dieting are discussed. ]

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.

Kimkins on Facebook

As part of the viral marketing of Kimkins by Heidi Diaz, she is now on Facebook. She presently has two profiles there; Kimmer and Kimkins Diet.

I am not myself into Facebook as I have other ways to network with people online. But I thought one of the main ideas with Facebook was that you should show YOUR actual FACE.

So what does Heidi Diaz do?

This is the one for Kimmer:



And this is the one for Kimkins Diet


Why not show her own face?


As Kimmer has always claimed that she wants to "inspire" people to lose weight, she might find it more appropriate to use a fairy and a young woman (that most likely never had any weight to lose) to represent her diet. I am sure that few people would see the picture of the founder of the Kimkins Diet and think: "Oh, this is a diet I have to try! $79.95 is a bargain if I get to look as she does."

Kimmer Hiding Assets?

A blog post by Affiliatescams about the bankruptcy dismissal reminded me about this picture originally posted by Kimkins Controversy.

Kimkins Bankruptcy Dismissed

Heidi's attempt to derail the Class Action Lawsuit against Kimkins.con was not successful. She filed for bankruptcy in January 2009 which put all other legal actions on hold. But the bankruptcy case has now been dismissed.



So who thinks Heidi Diaz will show up for the new Kimkins get-together scheduled for Las Vegas in October 2009? The 2008 venture didn't happen due to "high gas prices." What will the excuse be this time? That Kimkins.con doesn't exist anymore?

SCAMMY Awards

Americans Against Self-Help Fraud is now accepting nominations for the 2009 "SCAMMY" Awards, which are given to Self Help Gurus for "excellence" in ripping off Americans with their falsehoods, false hopes, myths & half-truths!

Don't you think Heidi Diaz qualifies for every single one of these:

1. DUMB SPEAK AWARD - given for the most unintelligent thing uttered by a Self-Help Guru!

"Can I take that back?"

2. HYPOCRITE AWARD - given to the Self-Help guru with the biggest gap between their professed values and how they actually behave!

Eating sugar cookies while she was advising people to cut calories below 500 by eating egg whites and no more than 3 oz of lean meat per meal?

3. DADDY BIG BUCKS AWARD - given to the Self-Help Guru whose lifestyle shows that they are only in it for the money!

Banning members as they had already paid their "lifetime" fee and did not bring in any further revenue? Now having ads and selling anything; including Alli and Acai Berry with Colon Cleanse?

4. HOODWINKED AWARD - given to the Self-Help Guru who did the best job of tricking a celebrity into being their sponsor!

Remember the Lindsay Lohan Kimkins T-shirt? The photo shopped one? Plus submitting comments stating that other celebrities were using Kimkins?

5. BI-POLAR AWARD - given to the Self-Help Guru whose promises got the opposite results!

I think many ex-Kimkins dieters can testify to this one. Ending up heavier than before they started as the starvation diet more often than not lead to binges and regain of any weight lost.

6. BEST PERFORMANCE IN A MIS-LEADING ROLE AWARD - given to the Self Help Guru who did the best job of deceiving the public!

Pretending to be an 118 lbs slim woman in a white dress for 6-7 years on a large lowcarb forum? Not to mention the phone interview she did with Jimmy Moore, still claiming to be 118 lbs while she probably topped 350 lbs at the time. Or the Russian Bride pictures in Woman's World and on her website.

7. BERNIE MADOFF LIFETIME MIS-ACHIEVEMENT AWARD - given to the best, all around Self-Help Guru who did the most to diminish the human race!

I don't know where to start. Just read her posts on LCF where she over and over again belittled dieters that did not agree with her. Or, check out Kimkins Survivors to see what happened to people trying to follow her dangerous diet advice.

Why don't you head over to the SCAMMY Awards and cast your vote?

Kimkins Lost Its Cult Status

Remember how we just a year back used to call Kimkins a cult? That was at a time where staunch supporters still visited blogs to defend Kimmer. When they were talking about the anti-kimkins haters and Kimkins.con being a "safe" place. When the members hung onto every word that came out of Kimmer's keyboard. When the forum was full of activity and people expected to lose a pound a day. When cutting calories still was the only way to weight loss.

No more. Kimkins is now just another diet forum. There is nothing different going on there than on any other FREE forum. People join challenges. Fall off the plan. Come back and start over. Just as on any other diet site.

There are a few long timers there, but it's questionable if they are Kimmer supporters. Some lend their name to advertising, no doubt with the expectation of making some money off it. Others stay there for reasons that I can just guess at:

• Staying with friends in their challenge groups
• The diet works for them, at least for now
• Blaming Kimkins dieters that developed health problems on their own poor judgement; they should have known better
• Feeling sorry for Kimmer. We all know how it feels to be overweight, to fail on a diet.
• Having sympathy for Kimmer because the anti-kk attack her.
• Not feeling "safe" going to another diet site as following the Kimkins diet is largely frowned upon by the lowcarb community

I just hope they all come out unharmed at the end.

Kimmer, Heidi Diaz, must have felt on top of the world a year and a half ago, when Kimkins was at its biggest. Money rolling in, more than she had ever seen before. People worshipping her and seeing her as their savior.

I wonder how she feels today? Class action suit underway. Bankruptcy court perhaps not ending up the way she wanted.

Weight Loss Ads

Despite having applied for bankruptcy, Heidi Diaz continues to blow her ill gotten money on Google Ads. It's sort of funny to read them when you know that they are written by a morbidly obese, diabetic, woman that never lost weight on her own diet despite having had gastric bypass surgery.

The ads that come up today include:

• Turbo fast weight loss
• Amazing "no exercise" diet secret
• Supercharged low carb diet
• Works fast
• Low carb diabetic diet
• Fast!
• Bariatric gastric band surgery diet
• Xtreme "no exercise" diet
• Fast detox weight loss
• Insulin resistant diet
• Turbo fast fat loss
• Lose stomach fat fast
• Postpartum weight loss
• Master cleanse low carb

Does this woman look like she knows what she is talking about?

Yes, sure, the picture is a couple of years old, but reportedly she really haven't lost much compared to this picture. And it was taken at a time when she claimed to be a svelte 118 lbs!

Of course, the ads use other "success" stories now. Somebody that starved off the weight and agreed to become a poster girl (or guy) for Kimkins.con. Possibly with compensation in form of affiliate payouts. I hope it is worth the money, which I'm sure isn't much. Personally, I would be embarrassed to represent this woman.

And while there are people that did lose weight on Kimkins, I wouldn't call them a success before they have managed to keep that weight off for several years. Far too many end up looking like Heidi, ending up heavier than before they started. Severe dieting does much more harm than good, in my opinion.

Heidi Diaz in Bankruptcy Court

There was a hearing held yesterday. While no details about the legal side of things have been made public, we did hear that she has not lost any weight.

How come I am not surprised?

She is still selling the Kimkins Diet as a "magic pill" that will help people lose a lot of weight quickly. How come it doesn't work for Heidi herself? Doesn't she "want it bad enough"? Is she a "sissy?"

She is leading a "boot camp" challenge on Kimkins but apparently only the others are supposed to follow the rules, and not Heidi herself. How can she expect that anybody can stick to that diet? She obviously can not.

I hope that she had to explain in court why she is still spending thousands of dollars in ads every month. I can not see that those ads attract many new members. At least there is no indication on Kimkins.con that they do. Is she just trying to waste the money so that it will not be available to the lawyers and plaintiffs in the Class Action Suit?

Kimkins Email Lists

Despite being banned I still receive newsletters from Kimkins.con. Unsubscribe doesn't work either. I wonder if that doesn't violate the spam act. But then I can't see Heidi Diaz caring much about what she violates. Defrauding me of my membership fee was perfectly fine in her opinion. Lying about her weight loss and using pictures of other people was just "marketing" and no fraud intended? Making up "success" stories the same. And finally, filing for bankruptcy is just a way of staying in business?

No doubt is my name still on the list for all members that at one time paid the membership fee. No doubt did she not bother to remove the ones banned. Why would she? Many of us are annoying her by blogging so why not annoy us? Not that it bothers me. Just another email that ends up in my spam box to be deleted.

Of course, the reason for these emails is obvious. Most of the members abandoned Kimkins early on when they found out that the diet was not sustainable. Many of these may be unaware of the fraud and everything else that has been discovered during the past year and a half. Perhaps they would be willing to return and give it a new try. Even better for Heidi, talk some friends into joining them, paying the "discounted" Valentine's fee of $71.96. I hope they will spend a minute or two googling Kimkins before they part with their money.

Heidi Diaz is also continuing with the Kimkins google ads. Obviously, the bankruptcy doesn't mean that she is short of money. Not to mention new websites. Simple Choices Diet may have been abondoned now when it was discovered, but there are several more, I'm sure. Hopefully they will also disappear when Kimkins.con is shut down.

Calories in Lettuce

Despite setback after setback in the court cases against Kimkins, Kimmer still finds the time to caution her members about the calories in lettuce. In a recent reply to a member that wondered if she needed to increase her calories over the earlier recommended starvation level, Kimmer responded:

"Are you sure you are eating 897 calories? The main reason I ask "stalled" people for their Fitday link is to check the food descriptions they picked."

"People can also get confused about quantities. Many times people either don't weigh food and guess at the amount, or they don't know which foods should be measured vs. weighed so their Fitday entries are inaccurate. As an example, 8 oz of lettuce in a measuring cup would be the size of a yogurt container, but 8 oz of lettuce on a food scale would be 8 cups."

A diet for which an additional 31 calories and 2.1 gram carbs from an "excessive" amount of lettuce is making a difference is a sad one.

But what can you expect from an obese diet "guru" that looks as if she never managed to follow any diet at all?

Kimkins Bankrupt

In an attempt to avoid certification of the Class Action Lawsuit, Heidi Diaz filed for Chapter 11 bankruptcy for Kimkins.

Luckily, that did not prevent certification. Heidi failed to show up for the Class Action hearing and had a default judgment entered against her.

It remains to be seen what will happen with the bankruptcy. She may have a hard time explaining why she started a new website, Simple Choices Diet, when she supposedly is busy reorganizing Kimkins to regain it's footing as a viable operation.

There has been speculation that Heidi would move the existing Kimkins members to her new site. I doubt it. Not unless they are willing to become subscribers and pay the monthly fee the new site charges. Of course, she may offer them a free trial membership for a few months to just populate the forum for her. That would save her the cost of hiring professional sock puppets.

It's not surprising that Heidi is now changing her business model to a monthly payment plan instead of the lifetime membership she had on Kimkins. She must have regretted choosing that option. Lately, the only new posters on the site have been returning members that do not bring in any new revenue.

Personally, I think the new site is an attempt to get rid of Clexus, a joomla tech support company. Clexus may have helped finance the buy out from Catherine, the partner Heidi initially had for Kimkins. At least there must be a reason that Heidi is continuing to pay money to this company. Around 25% after business expenses, if I read the bankruptcy data correctly. Having seen how Heidi operates, my guess is that she is not too happy about sharing any income. She did not like Catherine getting 50% of the profit when Heidi "was doing all the work." Surely she has the same opinion about Clexus.

The new site is using SMF (Simple Machines) free forum software. Brandon has some experience with it as he has had it on his own forum for some time (thecorruptedcanvas.com). I wouldn't call him an expert as he seems to have had problems with custom tweaks he has done. But at least Heidi could hope to get rid of the tech expenses she now has for running the joomla board on Kimkins.

I'm sure that Clexus is not too happy about what is going on with Kimkins. Having the company run down by Heidi. Spending a lot of money on google ads that don't result in revenue. Seeing the reputation of the company going down the tube. But not having presence in this country, I suspect they have few options of making their voice heard. However, my guess is that they have already gotten a higher payback than they ever expected.

Busy Court Month for Kimkins

The Kimkins Class action suit is moving along with a snail's pace, as legal cases generally do. After the first filing more than a year ago, we have finally reached the point of having a hearing for the motion for Class Certification. This is scheduled for 01/14/2009.

Kimkins is no longer represented by a lawyer. Heidi Diaz will represent herself, unless she finds a new lawyer the next couple of days.

So will she show up? She doesn't have a good track record for court appearances in the past.

What happens if she doesn't show up? Unless she has filed some type of excuse I would assume that there will be a default judgment in favor of the plaintiffs, i.e. class action certification will be granted. I may be wrong.

The next scheduled court hearings are on 01/27 and 01/28. These are a number of similar hearings all dealing with determining jurisdiction for the defendants in Heidi's counter suit (SLAPP suit). As none of them is a resident of California it is not that obvious that they can be sued in Riverside Court.

What happens if the plaintiff, Heidi, doesn't show up at the hearing for HER counter suit? I would assume that it is dropped. Again, I could be wrong.

The third item in court is a hearing on 01/29 in Small Claims Court. The City of Corona is suing her for failing to pay a business license fee. They are not asking for much money at all, and it wouldn't surprise me if Heidi has already paid it. But then, it didn't make sense not to pay it in the first place. I would expect her not to show up for this hearing and just get a default judgment against her. Leaving the City of Corona having to try to collect the money owned.