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