Thinking about trying the Kimkins diet?

Perhaps you should think again. The court ordered statement was just posted on the Kimkins diet website.

The California Riverside County Superior Court has ruled in Jeanessa Fenderson, et al. v. Heidi Diaz, Kimkins, Case No. 483005 that Heidi Diaz and Kimkins have engaged in false advertising and fraudulent business practices. The Court found that Defendants Kimkins and Heidi Diaz aka "Kimmer" during the class period, (January 1, 2006 through October 15, 2007, hereinafter "Class Period") have falsely represented the success of the Kimkins diet in that Heidi Diaz, as creator of the Kimkins diet, lied about her representations concerning the amount of weight she lost on the Kimkins diet. The Court also found that the "after diet" images promoted to be Heidi Diaz aka "Kimmer" following the alleged use of her Kimkins diet, posted on the Kimkins.com website and advertisements during the Class Period were not Heidi Diaz, but were actually misappropriated images of models who were used to mislead the public into believing that Heidi Diaz aka "Kimmer" was successful in her weight loss. The Court also found that Defendants, Kimkins and Heidi Diaz aka "Kimmer" used false testimonials on the Kimkins website during the Class Period to mislead the public as to the success of the Kimkins diet. The Court also found that Kimkins and Heidi Diaz aka "Kimmer" used misappropriated photographs of 41 models that were used with false testimonials on the Kimkins.com website during the Class Period to mislead the public as to the success of the Kimkins diet.

Is this really a diet you would want to follow? Paying money to this woman?

Kimkins Trial Verdict

The Court found in favor of the plaintiffs on all points.

We have a judgement based on fraud for $1.8 Million.

We have punitive damages for $500,000

We have injunctive relief, which includes she can not further lie to promote her diet. She can not use fake photos, success stories or testimonials to promote her diet.

While we won't see a court ordered 404 message we got something even better.

Heidi must put a notice on ANY website she starts for any purpose, diet or otherwise, that explains that she lied, used fake success stories and testimonials, that she mislead, that she used deceptive practices. She is going to have to post a notice that explains that low calorie diets can be dangerous, with a list of possible adverse side effects (the wording of the notice is to be worked out between the lawyers and the judge). There is NO expiration of these notices.

The Judge included a PERMANENT restraining order wherein Heidi (or any of her socks) are prohibited against contacting in ANY form with any/all class members, class plaintiffs, lawyers, their families, their staffs (which includes me, Laura) for the rest of our lives.

Oh, all of her assets have been frozen until the judgement is entered and served.

This may be appealed, of course, but today, WE WON!!!!!

The official version:
Today, October 29, 2010, Judge Rick Brown of the Riverside County Superior Court entered a verdict for the plaintiffs in a certified national class action lawsuit. The court entered a verdict against Heidi Diaz the owner of the diet website Kimkins.com for fraud and false advertising. The court awarded the class members restitution in the amount of $1,824,210.39. The court also awarded an additional $500,000 in punitive damages as well as attorney fees. The court then issued a temporary restraining order to freeze all of the assets of Ms. Diaz.

Most notably, the court also imposed an injunction requiring Heidi Diaz to post on all of her websites that: (1) she lied about her weight loss; (2) she lied about her after diet pictures; (3) she lied about testimonials on her website; and (4) she lied about the photographs used with the testimonials to promote the Kimkins website.

An injunction was also issued to prevent Heidi Diaz from contracting, harassing or cyberbulling the plaintiffs and the witnesses. A formal judgment will be entered before November 19, 2010.

The original complaint was filed over three years ago on October 15, 2007. I want to thank everyone who supported the class action lawsuit. The Ducks were wonderful. I met a lot of great people and made a lot of new friends fighting for a good cause. Heidi Diaz lied on her website and made the fatal mistake of lying in the courtroom. You cannot trust Heidi Diaz. I anticipate more legal (illegal) maneuvering by Heidi Diaz to evade the judgment. We will be prepared and I will be relentless. Again, I thank all you.


John E. Tiedt
TIEDT & HURD

Kimkins Meet-Up

Remember how Kimmer - Heidi Diaz - announced Kimkins meet-ups in Vegas, more than once, and they never happened? The first time it was something about gas prices, the second time never got off the drawing board if I remember correctly.

Now, she finally got her meet-up but not the way she envisioned it, I'm sure. Not in Vegas either. Court house in Riverside, CA.

It is likely the first time Kimmer has ever met any Kimkins dieters but I doubt she has any interest in socializing or chatting with them. The girls are former Kimkins members that are there to bring Heidi to justice and to have the Kimkins website removed from the internet. I'm sure that the testimony by these girls is nothing like the praise that Heidi would have expected from a meet-up at the time Kimkins operated as a cult. But perhaps even then, the people meeting her would have had this reaction:



Picture courtesy of CarolynF on LCF.

Kimkins Trial is Underway

The trial should have started yesterday but due to a busy schedule, it was postponed until today. Heidi Diaz was not present yesterday but she is expected to show up today. Will she wear stretch pants to court?



Probably not. But perhaps red as here at the deposition almost 3 years ago:


Rumor has it that she is no smaller than in the pictures above. I think that may not be helpful to convince the judge (no jury trial) that Kimkins is a great diet that helps obese people to shed the weight and keep it off. The fake success stories and fake photos don't lend any credibility to the diet either.

The trial is attended by a number of plaintiffs and other people that have been involved in bringing Heidi to justice. We are lucky to get updates directly from court. Find out what is going on at the thread on Lowcarbfriends.

You will have to register at Lowcarbfriends to access the thread, but registration is free.

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 "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.

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 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?

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?

Kimmer Representing Herself

12/22/2008 SUBSTITUTION OF ATTORNEY FILED; ON 3RD AMENDED COMPLAINT OF JEANESSA FENDERSON REMOVE ATTORNEY LAW OFFICES OF COTTLE & KEMP FOR PARTY(S) HEIDI DIAZ AND REPLACE WITH ATTORNEY PRO/PER

The Kimkins Class Action Lawsuit took a new twist when Heidi Diaz' lawyer was removed from the case and leaving Heidi to fend for herself.

What is the reason? Nobody knows.

Perhaps he was fired by Heidi. She seems to have unreasonable expectations which is evident from the counter suit that she filed. She appeared to have listed a number of defendants just because she was mad at them, and not because she could possibly win a verdict against them.

Perhaps Heidi didn't want to, or could not, pay him any longer. All the hours Cottle has put in during the last year must have cost her a lot of money.

Whatever the reason, I think it is very good news for the plaintiffs in the Class Action Suit and the defendants in the Cross Complaint. Perhaps this saga will be over sooner than we expected. Perhaps the day to celebrate the shut down of Kimkins.con will arrive shortly.

It will be interesting to see Heidi Diaz representing herself. What persona is she going to assume? Heidi? Kimmer? Vanessa? Lesya, the Russian Bride in the red dress?

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.