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Dismissively Appealing

What if the badguys had to answer my questions?

It’s a rhetorical question because obviously nobody’s going to answer my questions. But what if they had to? I don’t know… it would be strange.

So that’s what’s happening right now.

Herbalife has until December 14ish, 2018, to answer the thirty-one requests for production contained within the first real discovery request of this fourteen month old case. Real questions that’ll be requiring real answers.

The reality of consumer class litigation is that you must be willing to litigate about class waiving arbitration provisions for between one and five years before you can even begin to have the merits of your case addressed. During this labor intensive period you are almost certainly going to lose and have your case driven out of court. It’s a real crisis for accountability in America.

But Rodgers vs. Herbalife is more than half past it.


Herbalife’s President’s Team had all of their arbitration and venue motions denied and the case against them immediately resumed. We responded to their motion to dismiss and filed a request for the production of documents. But before the response to the document request was due the defendants filed a notice of appeal. The appeal comes with an all-but-automatic stay of proceedings pending resolution of the appeal.

This means the President’s Team doesn’t have to answer the first questions in that case for at least another year; another expensive year in which hundreds of pages of arguments will be submitted on the question of whether two parties who did not agree to arbitrate should none the less be forced to arbitrate.

And guess what? Only corporations and businesses can immediately appeal the loss of an arbitration decision. When the consumer loses they are just stuck with it.

Defendants filed their opening appeal brief on November 14, 2018. I’m so totally looking forward to this. The case may make important law on the question of top MLM distributors attempting to hide their side businesses beneath the umbrella of their mothership’s mandatory arbitration provision. If that doesn’t sound super fun and interesting to you… go away, this is a nerds only area.


Herbalife fared better in the first hearing than did their President’s Team henchman, as they explained in their most recent quarterly report to investors:

On August 23, 2018, the Court issued an order transferring the action to the U.S. District Court for the Central District of California as to four of the putative class plaintiffs and ordering the remaining four plaintiffs to arbitration, thereby terminating the Company defendants from the Florida action.

That’s one way to say it. You might also say that, against all the odds, the U.S. District Court did not terminate the action and it is now ongoing as to four of the plaintiffs in the Central District of California.

The plaintiffs seek damages in an unspecified amount. The Company believes the lawsuit is without merit and will vigorously defend itself against the claims in the lawsuit.


The Company chose not to appeal the arbitration decision and vigorously filed a clone-stamp motion to dismiss in the new California case. We responded. They replied. Hearing set for January 28, 2019.

This is happening.

So now you’re all up to date… and I’m hoping to celebrate the upcoming holidays by finally getting some goddamn answers.