"Kimkins" Diet Fraud Unmasked

Stephen Barrett, M.D.


Eleven former members of the Kimkins Diet Web site are suing Kimkins founder Heidi "Kimmer" Diaz for false advertising, fraud, unjust enrichment, and negligent misrepresentation. The complaint (shown below) alleges that (a) Diaz falsely claimed to have lost 198 pounds in one year, but in fact remains morbidly obese, (b) members' lifetime memberships were unjustly terminated, (c) Diaz made unjustified claims that the diet is safe, (d)) members using the diet plan suffered medical complications that included hair loss, heart palpitations, irritability, and menstrual irregularities, and (e) Diaz's Web site displayed phony "success" stories that used photographs she obtained from Russian and Ukrainian sites with ads for women who wanted to meet prospective husbands. The plaintiffs' attorneys are seeking certification of the suit as a class action. Last June, Diaz attracted national attention and collected more than $1 million through PayPal after the supermarket tabloid Woman's World published her claims with before-and-after pictures purporting to show how her appearance had changed. However, the "after" picture was not Diaz but had been downloaded from a Russian site. KTLA-TV has broadcast segments of a deposition in which Diaz admits to lying. Her Web site contains a "confession" in which she rationalizes what she did but maintains that her program is effective. For additional and photos, information see consumeraffairs.com.


SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE, RIVERSIDE COURT

Jeanessa Fenderson, Karin Billeci, Trista Essex,
Heidi Martinez, Kathleen Rogers, Diana Sherby,
Christin Sherburne, Elizabeth Winn,
Connie Steinrock, Catherine McGinnis, Ann Marie Wood,
individually and on behalf of all others similarly situated,

Plaintiffs,

v.

Heidi Diaz, Kimkins, an unknown business entity,
and DOES 1 through 100, Inclusive,

Defendants.


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CASE NO. 483005

COMPLAINT FOR DAMAGES FOR:

(1) Violation of Business and
      Professions Code section 17200, et seq.;
(2) Fraud
(3) Unjust Enrichment;
(4) Negligent Misrepresentation.

 

FILED OCT 15, 2007

BACKGROUND AND CASE OVERVIEW

Plaintiffs Jeanessa Fenderson, Karin Billeci, Trista Essex, Heidi Martinez, Kathleen Rogers, Diana Sherby, Christin Sherburne, Elizabeth Winn, Connie Steinrock, Catherine McGinnis, and Ann Marie Wood, individually and on behalf of the class described below, bring this action for damages, restitution, and injunctive relief based on Plaintiffs' personal knowledge, on investigation by their attorneys, and on information and belief.

INTRODUCTION

1. Kimkins.com is an internet website that charges the public a membership fee to access the "Kimkins diet", a low carbohydrate diet program. The Kimkins diet was offered as a purportedly safe, effective, all natural, and permanent way to lose weight without exercise. The Kimkins website contains a web forum wherein members can exchange ideas and encourage other dieters. In reality, the Kimkins website is a scam designed to defraud the public for the sole economic benefit of the Defendants. Fraudulent claims were made to lure members of the public to pay as much as sixty dollars ($60.00) for an unproven, untested, and unsafe diet program.

2. The Defendants misled consumers by falsely stating that the founder of the Kimkins website, a woman known as "Kimmer", lost a total of one hundred and ninety-eight (198) pounds in one year and kept it off as a result of the Kimkins diet. Specifically, the following statement was made on the Kimkins website:

"It is called Kimkins and was developed by me, Kimmer, in 2001. I weighed a morbidly obese 318 pounds! In less than a year I lost 198 pounds and kept it off!"

3. Adjacent to the above-mentioned statement is a picture of a slim and fit woman who is purportedly Kimmer. A true and correct copy of this screen shot of said webpage is attached hereto as Exhibit "A".

4. The truth is that "Kimmer" who lost 198 pounds does not exist. Plaintiffs are informed and believe that Defendants misappropriated the image of a Russian woman who never used the Kimkins diet. A copy of a screenshot by the Kimkins management team featuring the "Kimmer" is attached hereto as Exhibit "B".

5. In fact, the alleged Kimmer was created by defendant Heidi Diaz who used her own image in "before pictures" to depict a morbidly obese woman but used the image of an unknown, slim and fit woman for the "after picture" and the picture featured in Exhibit "A". A true and correct copy of the photographs used by the Defendant depicting the before and after images that are falsely represented to be Kimmer is attached hereto as Exhibit "C",

6. Consumers were misled into believing that the Kimkins diet was successful in transforming the image and life of the fictional character known as Kimmer. In reality, Heidi Diaz remains as of this date morbidly obese. Plaintiffs are informed and believe that Heidi Diaz never lost one hundred and ninety-eight (198) pounds in one year. A true and correct copy of recent photographs of Heidi Diaz aka "Kimmer" is attached hereto as Exhibit “D".

7. Defendants also made other false claims of success stories utilizing misappropriated before and after pictures. The Defendants misappropriated photographs from a website featuring Russian women who were seeking husbands and placed said photographs on the Kimkins website. Defendants misrepresented the individuals as Kimkins members who successfully lost weight as a result of the Kimkins diet. A true and correct copy of the photographs of the misrepresented Kimkins "success story" models is attached hereto as Exhibit “E".

8. Defendants claims regarding the success of the featured individuals on Kimkins.com and the internet about weight loss results were unsubstantiated and not verified by the Defendants.

9. Consumers were also misled into believing that if they paid the one-time fee and become a member of the Kimkins website, they would receive a lifetime membership. This representation was made on the Kimkins website. Heidi Diaz publicly stated in an interview with Jimmy Moore:

"we offer a lifetime membership. If you quit Weight Watchers, you pay another registration fee. Take too long on Jenny Craig, you lose their 'lose all you want in six weeks' guarantee. A Kimkins membership is yours for life."

A true and correct copy of the interview is attached hereto as Exhibit "F".

10. The reality is that members of the Kimkins website were indiscriminately and unjustly terminated, In some instances, members were also terminated for questioning the safety of the diet program. Members were terminated when they questioned whether or not the before and after pictures featured on the site were authentic.

11. The Defendants misled the public into believing that the Kimkins diet program was safe and efficacious. The Kimkins website made the following claims:

"A two hundred pound woman who only walks 2 miles a day will only burn 175 calories! This means it will take 3 weeks of daily walking to lose only 1 pound!!! Just 1! Walking 2 miles every day!

Here's the math: 175 calories x 20 days = 3500 (1 pound)

This is why the Kimkins Diet is a weight loss Super Star! Kimkins is thermogenic. You burn more calories than regular "slow" diets - and it works without exercise! It's true! Kimkins members typically lose 5% of their total body weight in the first days! Wow!

It's your choice: Depend on exercise to lose 1-2 pounds in 30 days or pick thermogenic Kimkins and lose 10% of your total body weight in 30 days! Hmmm, I know what sounds better to me!

The sooner you join, the sooner you'll be skinny!" (Emphasis from the original text.)

A true and correct copy of the screenshot from Kimkins.com containing said quote is attached hereto as Exhibit "G".

12. The Defendants knew the Kimkins diet was not proven to be thermogenic, safe, or effective. The Kimkins diet was never clinically tested or evaluated by medical professionals. The truth is that the Kimkins diet advocated a dangerously low level of calorie intake that did in fact cause injuries to Kimkins members.

13. The Defendants have made the following outrageous claims concerning the
Kimkins diet program:

"Millions of overweight people think fast, permanent weight loss is completely out of their reach. They've been told their entire lives they should be happy with slow 1-2 lb a week weight loss. How depressing and untrue! What if I told you that you could lose weight at turbo speed? Experience natural appetite suppression? Would you be interested?

Don't worry! No awful prepackaged foods, Forget about diet pills or risky surgery. The plan I'm talking about is all natural with everyday food.

It's called Kimkins and was developed by me, Kimmer, in 2000 when I weighed a morbidly obese 318 pounds! In less than a year I lost 198 pounds and kept it off!"

A true and correct copy of the said screenshot is attached hereto as Exhibit "H".

14. The truth is that Heidi Diaz, aka, Kimmer is not a doctor, nutritionist or a dietician who can safely advise the public with regard to extremely low calorie diets. Defendants have no viable evidence that the Kimkins diet can cause "natural appetite suppression." The Defendants have no evidence to substantiate their claim that Kimkins members "typically lose 5% of the total body weight in the first 10 days!" As stated above, the claims of Defendant Heidi Diaz, aka Kimmer that she lost one hundred and ninety-eight (198) pounds and kept it off are in fact false,

15. Numerous consumers have suffered severe injuries as a result of using the Kimkins diet. Consumers, including some of the named Plaintiff class representatives, have suffered hair loss, heart palpitations, weakness, nausea, muscle fatigue, bone and joint pain, confusion, forgetfulness, irritability, and abnormal or loss of menstrual cycle. Other victims of the Kimkins diet program have also complained of emotional distress and mental suffering as a result of the severe and restrictive Kimkins diet.

16. Heidi Diaz was advised of the adverse reactions to the Kimkins diet program, but failed and refused to revise or withdraw her diet program. Plaintiffs are informed and believed that after receiving complaints from the public, Defendants refused to contact physicians or other medically trained professionals for an evaluation of the safety and efficacy of the Kimkins diet program.

17. Defendants misled the public by stating that exercise was not necessary for weight loss. Specifically the following statement was made on the Kimkins website:

“Do I have to exercise?

Absolutely not! While cardio has many benefits including conditioning and toning, it does relatively little for weight loss. If a 200 pound woman walked 2 miles she would burn 175 calories. This means it would take 20 days to lose just 1 pound!

Some people will actually avoid beginning a diet because they dread the required exercise of most plans. With Kimkins it's a no brainer! No exercise required."

A true and correct copy of the Kimkins screens hot is attached hereto as Exhibit "I".)

18. The truth is that medical professionals generally recommend the use of both diet and exercise for weight control. Advising the public to forego exercise for an extremely low calorie diet program is both reckless and shows willful disregard for the health and safety of the public.

19. The Defendants misled the public by advising that calorie restriction below 900 calories a day was safe and efficacious without the need of medical supervision, The Kimkins Boot Camp Plan recommended as little as 500 calories a day. Said program was recommended without required medical supervision.

20. Defendants misled the public that substantial weight loss can be achievable by all consumers. On the Defendants' website it had been stated that consumers who used the program will "always get optimum results."

21. Due to physiological variations of humans, not everyone responds to diets the same way. General claims that everyone can safely lose weight as a result of a Kimkins diet cannot be substantiated.

22. Plaintiffs are informed and believe that Defendants misled the public by falsely stating certain celebrities had used the Kimkins diet with success. For example, Plaintiffs are informed and believe that Heidi Diaz falsely declared to the public that Jessica Alba claimed to have lost 12 pounds in 10 days with the Kimkins diet. Plaintiffs are informed and believe that Jessica Alba had never used the Kimkins diet and/or never lost 12 pounds on the Kimkins diet.

23. Defendants have misled the public into believing that their lifetime membership would include an e-book regarding the Kimkins diet plan. The Kimkins website stated that with their subscription, the members would receive the Kimkins e­book. The Plaintiffs never received the Kimkins e-book with their paid subscription.

24. Nationwide, for those who paid for the Kimkins membership, the Plaintiffs will seek an order compelling the Defendants to make full restitution. Plaintiffs will also be seeking compensation for attorney's fees and injunctive relief.

THE PARTIES

The Plaintiffs

25. Jeanessa Fenderson is a resident of Wyoming, Michigan and purchased her Kimkins membership on or about March 5, 2007 for thirty-nine dollars and ninety-five cents ($39.95). Fenderson may be contacted through her counsel, John Tiedt or David Winter.

26. Karin Billeci resides in Napa, California and paid fifty-nine dollars and ninety-five cents ($59.95) on or about June 7,2007 for her Kimkins.com membership. Billeci can be contacted through her counsel, John Tiedt or David Winter.

27. Trista Essex resides in Porterville, California and purchased her Kimkins membership on or about October 2, 2006, Essex may be contacted through her counsel, John Tiedt or David Winter.

28, Heidi Martinez is a resident of Corona, California and purchased her Kimkins membership for fifty-nine dollars and ninety-five cents ($59.95). Martinez may be contacted through her counsel, John Tiedt or David Winter.

29. Kathleen Rogers is a resident of Sacramento, California and purchased her Kimkins membership for fifty-nine dollars and ninety-five cents ($59.95) on or about June 2007. Rogers may be contacted through her counsel John Tiedt or David Winter.

30. Diana Sherby is a resident of Palo Alto, California and purchased her Kimkins membership on or about June 15, 2006 for seventeen dollars and ninety-five cents ($17.95). Sherby may be contacted through her counsel John Tiedt or David Winter.

31. Christin Sherburne is a resident of Austin, Texas and purchased her Kimkins Membership on October 2, 2006 for the amount of thirty-nine dollars and ninety-five cents ($39,95). Sherburne may be contacted through her counsel, John Tiedt or David Winter.

32. Elizabeth Winn is a resident of Little Elm, Texas and purchased her Kimkins membership on or about June 12, 2006 for the amount of fourteen dollars and ninety-five cents ($14.95). Winn may be contacted through her counsel John Tiedt or David Winter.

33. Connie Steinrock is a resident of Wyomissing, Pennsylvania and purchased her Kimkins membership on or about September 25, 2006 for the amount of twenty-nine dollars and ninety-five cents ($29.95). Steinrock may be contacted through her counsel John Tiedt or David Winter.

34, Catherine McGinnis is a resident of Laguna Niguel, California and purchased her Kimkins membership on or about April 15, 2007 for fifty-nine dollars and ninety-five cents ($59.95). McGinnis may be contacted through her counsel John Tiedt or David Winter.

35. Ann Marie Wood is a resident of Los Banos, California and purchased her Kimkins membership on or about August 1, 2007 in the amount of one hundred and nineteen dollars and ninety cents ($119.90). Wood may be contacted through her counsel, John Tiedt or David Winter.

The Defendants

36. Heidi Diaz is a resident of Corona, California, At all times mentioned herein, Heidi Diaz was and is the owner of the Kimkins.com website and all other businesses associated with the Kimkins diet program.

37. Kimkins, an unknown business entity, conducts business in Corona, California.

38. The true names and capacities, whether individual, corporate, associate, or otherwise of Defendant Does 1 through 100 inclusive are unknown to Plaintiffs who therefore sue said Defendants by such fictitious names pursuant to California Code ofCivil Procedure section 474. Plaintiffs further allege that each of said fictitious Doe Defendants are also responsible for the acts and occurrences hereinafter set forth, Plaintiffs will amend the complaint to show their true names and capacities when the same is ascertained, as well as the manner in which each fictitious Defendant is responsible for the damages sustained by the Plaintiffs.

39. At all relevant times, each Defendant was and is an agent of each of the remaining Defendants, and in doing the acts alleged herein, was acting within the course and scope of such agency, Each Defendant ratified and/or authorized the wrongful acts of each of the Defendants and engaged in a common cause of conduct.

JURISDICTION AND VENUE

40. The court may properly assert personal jurisdiction over the parties. Plaintiffs Billeci, Essex, Martinez, Rogers, Sherby, McGinnis, and Wood are residents of California. Defendant Heidi Diaz is also a resident of Corona, California and solely conducts her business in Corona, California. The amount in controversy exceeds the jurisdictional threshold for an unlimited civil case. Upon information and belief, this matter involves aggregate claims in an amount less than five million dollars, exclusive of interest and costs.

41. Venue in this court is proper since Plaintiff Martinez and Defendant Diaz are both residents of Corona, California.

CLASS ACTION ALLEGATIONS

The Definition of the Class

42. The class shall be those individuals that purchased the Kimkins.com diet membership on line between January 1, 2006 through October 15, 2007, Numerosity

43, The class is so numerous that joinder of all members is impracticable, Plaintiffs are aware of hundreds of complaints and based on information and belief, the class has an approximate size of forty thousand (40,000) people.

Commonality

44. There are questions of law or fact common to the class. These common questions include the following:

a. Did Kimkins/Heidi Diaz engage in false advertising?

b. Did Kimkins/Heidi Diaz violate federal and state laws regarding the fact that defendant made unsubstantiated and false claims to sell internet memberships?

c. Did the Kimkins website contain negligent misrepresentations of fact regarding the safety and efficacy of the Kimkins diet program?

d. Did the representations contained in the Kimkins website constitute fraud?

e. Did Defendants subject the Kimkins diet program to any clinical testing or medical evaluation in order to substantiate the claims made on the website?

f. Is the Kimkins diet program safe for the general public?

g, Did the Kimkins website lack warnings regarding potential ill effects associated with low calorie diets?

h. Did Heidi Diaz falsely misrepresent her weight loss claims?

i. Are the before and after photographs false and/or misleading?

j. Did the Defendants use false testimonials to sell memberships?

k. Do the Defendants wrongfully or unlawfully terminate consumers from the Kimkins website?

l. Is the Kimkins diet thermogenic?

m. Does the Kimkins diet cause appetite suppression?

Typicality

45. The Plaintiffs' claims and defenses are typical of the other class members' claims and defenses.

Adequate Representation

46. The Plaintiffs will fairly and adequately protect the class members' interest. To that end, they have retained attorneys who are experienced in representing consumers in class actions.

Superiority of Class Action

47. The Defendants have failed to act and refuse to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole. Here, the Plaintiffs are seeking to enjoin the Defendants from further misrepresentations on their website regarding the safety and efficacy of the Kimkins diet program. Plaintiffs were also seeking applicable relief that would apply class-wide: a refund of sums paid for individuals who purchased the Kimkins diet program internet membership.

48. Questions of law or fact common to class members preaomln8'[e over any questions affecting only individual members, and the class action is superior to other available methods to adjudicate this controversy fairly and efficiently. Because each individual claim is small- upon information and belief, between $14.95 and $119.00 - few class members will be interested in prosecuting individual actions. Despite widespread dissatisfaction with Defendant's diet program and advertising, no known lawsuit has been filed against the Defendants. Moreover, despite the publicity concerning wrongful acts of said Defendants, the Federal Trade Commission, and the Attorney General for the State of California have not yet acted on the claims identified above. It is desirable to concentrate the litigation of these claims in one forum. Any difficulties likely to be encountered in prosecuting this action as a class action can be readily managed,

CAUSES OF ACTION

FIRST CAUSE OF ACTION:

VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17200
(UNFAIR COMPETITION AND UNLAWFUL BUSINESS PRACTICES)

49, Plaintiffs incorporate paragraphs 1 through 48 as though fully set forth herein. 50. Beginning on or about Apri1 2006, Defendants constructed a website known as Kimkins.com which was used to sell the diet program known as the Kimkins diet. Heidi Diaz created a fictional character known as "Kimmer" that underwent a miraculous weight loss transformation as a result of the Kimkins diet. The Kimkins diet was actually created by Heidi Diaz, who, according to information and belief, has no medical background or professional training with regard to medicine, nutrition, or diet programs.

51, Defendant Heidi Diaz produced false before and after pictures of the fictional character Kimmer and posted said pictures on the Kimkins website to promote the Kimkins diet. (See Exhibits "A" through "0"). Ms. Diaz used her own photograph for the "before" image, but used a series of other photos of models for the "after" image to mislead the public into believing the Kimkins diet was effective. Ms, Diaz claimed on the Kimkins website that she lost one hundred and ninety-eight (198) pounds as a result of the miraculous diet and would promote her diet through the use of the fraudulent before  and after pictures.

52. Defendants created false testimonials of fictional people who lost a substantial amount of weight on the Kimkins diet. Defendants also used false before and after pictures to mislead the public. See Exhibit "E" attached hereto,

53. Defendants made untrue and misleading statements in the website and generally on the internet that celebrities had used the Kimkins diet. For example, Plaintiffs are informed and believe that Defendant Heidi Diaz deliberately planted the rumor on the internet that Jessica Alba had lost 12 pounds on the Kimkins diet. This blatant lie was used as a marketing tool to attract young dieters to the Kimkins website.

54, The Defendants knew or should have known when the website commenced that the Kimkins diet was a very low caloric diet that would present an inherent risk to health and required medical supervision. Actual diet related injuries were reported to the Defendants but were ignored in the name of profit.

55. Defendants omitted material warnings that could have prevented injuries to members of the Kimkins.com website. As a result of said material omissions, many women suffered irregular heart rate, hair loss, loss of menstrual cycle, extreme fatigue, anemia, and other illnesses. Others suffered emotional distress and mental suffering.

56. Defendants had an obligation to point out that the alleged success stories were atypical and could not be guaranteed to the general public. Nevertheless, Defendants advised that the results were typical and that substantial weight loss results could be achieved by everyone.

57. Defendants also promoted on the website and the internet that weight loss from the Kimkins diet would be permanent. Defendants knew such a claim was false, but made the representation to the public in order to induce memberships.

58, Defendants have engaged in unfair competition within the meaning of California Business and Professions Code sections 17200, et seq. because Defendants' conduct was fraudulent, unfair, and unlawful as herein alleged. Defendants' conduct was substantially injurious to the Plaintiffs,

59. In making and disseminating the statements herein alleged, Defendants knew, or by the exercise of reasonable care should have known, that the statements were in fact untrue and misleading and so acted in violation of Business and Professions Code section 17500, et seq.

60, Plaintiffs and the class relied on the advertisements of Defendants in their rip.d~ion to purchase the Kimkins website membership.

61. Defendants continue the false advertising claims stated above, and therefore, Plaintiffs have no adequate remedy at law,

62. Plaintiffs and the class are entitled to relief, including full restitution and/or disgorgement of all revenues, earnings, profits, compensation, and benefits which may have been obtained by Defendants as a result of such business acts or practices, and enjoining Defendants to cease and desist from engaging in practices described above. Plaintiffs also seek an award for attorney fees and costs.

SECOND CAUSE OF ACTION:

FRAUD

63, Plaintiffs incorporate paragraphs 1 though 62 as though fully set forth herein.

64. Defendants made promises and representations concerning the safety and efficacy of the Kimkins diet plan as presented in Kimkins.com and generally on the internet.

65. The promises and representations made by Defendants were material to the decision of the Plaintiffs to purchase a membership in the Kimkins internet webSIte. Defendants knew that the promises and representations made were likely untrue.

66. Plaintiffs reasonably relied on Defendants' promises and representations, As a consequence of Defendants' conduct for failure to act, Plaintiffs were damaged in an amount to be determined according to proof at the time of trial.

68. Defendants' conduct was malicious and fraudulent, thus warranting the award of punitive damages against the Defendants. Defendants knew the aforementioned representation regarding the Kimkins diet was false, but elected to continue to blatantly lie to the public despite the fact that irrefutable evidence was produced to prove Defendants lied to the public. Defendants knew the Kimkins diet would cause injuries and even when injuries were reported, Defendants did not revise the Kimkins diet or confer with medical professionals for advice to assist those who were injured.

THIRD CAUSE OF ACTION:

UNJUST ENRICHMENT

69. Plaintiffs incorporate paragraphs 1 through 68 as though fully set forth herein,

70. The Plaintiffs unjustly enriched the Defendants. They paid for a lifetime diet program membership by joining Kimkins.com. In reality, the Kimkins diet program was substantively deficient, based on fraudulent representations and members were indiscriminately and unjustifiably terminated,

71. Accordingly, there is no justification for this enrichment and since the I Plaintiffs have no adequate remedy of law, restitution of said sums paid by Plaintiffs to Defendants is justified.

FOURTH CAUSE OF ACTION:

NEGLIGENT MISREPRESENTATION AGAINST ALL DEFENDANTS

72. Plaintiffs incorporate paragraphs 1 through 71 as though fully set forth.

73, The representation stated above and on the Kimkins website and on the internet by Defendants were untrue.

74. Defendant made the representations hereinabove alleged with the intention of inducing the public to purchase Defendants website membership. The Plaintiffs, between April 2006 and October 2007, saw, believed, and relied on Defendants' advertising representations, and in reliance on said representations, purchased the Kimkins membership for amounts ranging from $14,95 to $119.90.

75, At the time Defendants made the representations herein alleged, Defendant had no reasonable grounds for believing the representations to be true,

76. As a proximate result of Defendants negligent misrepresentations, Plaintiffs were induced to spend between and $19,95 and $119.90 each on Defendants website memberships.

77, As a further proximate result of Defendants' negligent misrepresentations, Plaintiffs suffered general, special, and punitive damages yet to be determined according to proof at the time of trial.

PRAYER FOR DAMAGES

WHEREFORE, Plaintiffs pray for judgment as follows:

  1. Approving this case for class treatment, appointing named Plaintiffs as representatives of the class, appointing John E Tiedt and David Winter as interim class counsel and, later, as class counsel;

  2. For restitution to the Plaintiffs and each other member of the class as their interest may appear, all sums unlawfully and unfairly collected by Defendants from the Plaintiffs and other members of the class since April 1, 2006;

  3. For order rescinding all transactions between Defendants, Plaintiffs, and other class members similarly situated; for interest on the sums at a legal rate from the date of each unlawful collection; for attorneys fees according to proof;

  4. Pre and post judgment interest, to the extent that the law allows;

  5. For all other such relief whether at law and equity, that the court deems necessary and just to which the Plaintiffs and the class are entitled;

  6. For punitive damages according to proof at the time of trial; and
  7. For costs of the suit herein incurred.

DATED: 10/15/07

Respectfully submitted,

TIEDT & HURD

By: _____________________
JOHN E. TIEDT
MARC S. HURD

JOHN E. TIEDT (SBN 134667)
MARC S. HURD (SBN 130667)
TIEDT & HURD
10370 Hemet Street, Suite 390
Riverside, California 92503
Telephone: (951) 343-3320
Facsimile: (951) 343-3329

DAVID WINTER (SBN 89867)
MOORE WINTER MCLENNAN, LLP
701 N Brand Blvd Suite 200
Glendale, CA 91203-4232
Telephone: (818) 240-2600
Facsimile: (818) 240-1253

Attorneys for Plaintiffs

This page was posted on January 10, 2008.

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