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.