Facts

In 2006, Heidi Diaz, the owner of "Kimkins" started a website which charged subscribers for a diet plan. Diaz, who went by the name of Kimmer, claimed that she lost 198 pounds in 11 months on the Kimkins diet, which is an extremely low calorie and low fat diet. Her advertisement contained dramatic before and after diet pictures depicting Kimmer's (aka Heidi Diaz) weight loss.

Defendants promised subscribers permanent weight loss and a lifetime membership. The website gained a substantial amount of interest over time and was featured in a cover article in the June 2007 Woman's World Magazine. In order to promote the website, defendants used testimonials and pictures of subscribers who purportedly loss a substantial amount of weight in a very short period of time.

Diaz did not lose 198 pounds in 11 months. Diaz used a false after-diet photograph of a very thin woman to represent to people that she lost 198 pounds. Said photograph was misappropriated by defendants and was used in advertisements and on the Kimkins.com website homepage. Further, defendants used 41 false testimonials and pictures to promote her website.

Plaintiff class representatives filed a class action lawsuit contending that Diaz engaged in false advertising in violation of California Business and Professions Code sections 17200 and 17500.

Plaintiffs' complaints also contained causes of action for fraud and negligent misrepresentation. The court granted an ex parte writ of attachment freezing the defendants' assets shortly after the complaint was filed. The court certified the case as a national class action lawsuit.

Plaintiffs requested injunctive relief as defendants continued to engage in alleged fraudulent and deceptive advertising without any remorse.

PLAINTIFFS' CONTENTIONS:
Plaintiffs contended that the owner of the Kimkin's website, Heidi Diaz, engaged in false and misleading advertising as she did not lose 198 pounds in 11 months. In fact, during the class period, Diaz weighed over 300 pounds and never lost any weight on her own diet. Plaintiffs also contended that Diaz used a picture from another website as her after diet picture to mislead the public into believing that she had lost a substantial amount of weight in 11 months and kept the weight off for five years.

Plaintiffs further contended that defendants used 41 false photographs and testimonials to promote the Kimkins' website. The promotional photographs were obtained from a Russian mail order bride website and used to mislead people into believing that the Kimkins' diet was successful in causing immediate weight loss.

Plaintiffs also presented expert testimony contending that the Kimkins' diet was unsafe as it required an extremely low calorie diet, which had caused subscribers to suffer adverse effects such as hair loss, arrhythmia, loss of concentration and other health problems. The Kimkins' diet also advocated the daily use of stimulant laxatives.

Plaintiffs alleged that the Kimkins diet could not cause permanent weight loss as advertised.

DEFENDANTS' CONTENTIONS:
Defendants contended that even though there were misrepresentations, all of the class representatives did in fact lose weight on the Kimkins diet. Defendants also contended that plaintiffs' expert did not have the qualifications to render opinions concerning the Kimkins diet.

Result

$2,324,210 ($1,824,210 economic; $500,000 punitive).

Other Information

The court entered a restitution judgment for $1,824,210 for subscription fees collected during the class period less the total amount of membership fees paid by individuals who exercised the right to opt out. The court entered an additional award of punitive damages in the amount of $500,000 against Diaz and Kimkins. The court also awarded attorney fees pursuant to California Code of Civil Procedure section 1021.5. The amount of attorney fees will be determined at a future hearing. The court also entered an injunctive order requiring defendants to post on the Kimkin's website and any other website owned by defendants, that Diaz and Kimkins used fraudulent and deceptive advertising to sell memberships for diet plans and the diet support system on Kimkins.com from Jan. 1, 2006 through October 15, 2007. Defendants were further ordered to place on the Kimkins.com website that the court also found that the calorie levels of the diet plans recommended and recommended use of laxatives were unsafe, did not lead to permanent weight loss, and caused loss of hair, arrhythmia, irregular menstrual cycle, nausea, confusion, eating disorders, and loss of lean muscle tissue. Furthermore, the court entered a permanent injunction against Diaz and Kimkins preventing the defendants from personally contacting or engaging in cyber-bullying of the class representatives, members of the class, and their counsel. The court also ordered a Temporary Protective Order to freeze the accounts of defendants. FILING DATE: Oct. 15, 2007.