Tuesday, January 28, 2014

No Canada: Klondike Kat-lady Reporting Live from Fort Frazzle

Some interesting facts about our neighbors to the North. 

  1. Canada is the garter snake capital of the world.
  2. Someone stole $18 million of maple syrup from the Global Strategic Maple Syrup Reserve
  3. Canadian Competition Bureau inquiries typically begin at the Commissioner’s instance, but an inquiry also must be commenced when the federal Minister of Industry so directs, or on the sworn application of six Canadian residents.
Because Canadians are in fact the congenial and polite caricature we envision their entire nation to be, I was not surprised to learn that it only requires the sworn application of SIX Canadian residents to force an inquiry(0.00000017% of the country). Goodness gracious! Rob Ford has sucked heroin off of more crack-addled hookers in one night than you actually need to meet the legal requirement for opening an inquiry with the CCB.

Not being nearly as kind and trusting as our northern friends I poked around a little bit. Actually I called the Canadian Competition Bureau today and spoke to a real live person. He patiently and graciously explained that inquiries at the CCB are done privately, so they would not necessarily announce if they have opened a formal inquiry, although they occasionally do make such inquiries public. The representative I spoke with also noted the process that occurs if and when an inquiry is opened. He pointed out in a stilting Canadian accent bubbling with undertones of Savoire Faire that if a formal inquiry is opened that one of the very first steps in the process is that the CCB contacts the company in question. He went on to note that inquiries are data driven and involve information gathering and he also explained that because an inquiry is a procedural tool to gather information, most of them are closed without any actions taking place. The way he explained it was that if an inquiry is opened, the CCB then reaches out to the accused company to notify them of the inquiry and then they'll typically request that the company provide the CCB information relevant to the inquiry so they can decide if any complaints against the company in question have any merit. If they deem that further action is meritorious they can then either conclude the case through alternative resolution or they can submit an application to an entirely separate entity called the Competition Tribunal. The tribunal defines itself as 
a quasi-judicial body that hears and disposes of applications and any related matters under Part VII.1 (Deceptive Marketing Practices) and Part VIII (Reviewable Matters by the Tribunal) of the Competition Act. 
According to the Competition Tribunal
The Competition Tribunal should be distinguished from the Competition Bureau. The Competition Bureau investigates complaints and decides whether to proceed with the filing of an application to the Tribunal.
Because they are separate entities, I was careful to carve up my searches across both agencies. I looked through all of the penalties imposed by the courts as well as all of the alternative case resolutions that the CCB has published. I also used the Competition Tribunal's handy built in search tool that you can use to search their database of ongoing cases, and you can imagine my surprise(#sarcasm) when I was absolutely unable to find any legal actions, alternative case resolutions or Tribunal cases involving Herbalife at either agency. Furthermore the Tribunal currently has no upcoming hearings scheduled and there are only three ongoing cases currently still open before the Tribunal (none of which involve Herbalife). 

When questioned about the claims that the CCB was investigating them, Herbalife couldn't be any more clear in their responses either:
  1. The company takes it's disclosure requirements very seriously. We refer you to our public filings.
  2. We are unaware of any investigation and have not been contacted. Canadian sales represent less than 1 percent of sales.
Having been jaded by my experiences with others, I ventured it would be wise to double check the SEC EDGAR archives...and wouldn't you know it; not only did Herbalife NOT file an 8-K (no shit, otherwise it'd be all over the news) the word Canada does not even exist in any of the company's 2013 filings!!!  

So, if Herbalife is unaware of any investigation and have not been contacted, but the CCB would have contacted them as a matter of procedure, and there is nothing to disclose via 8-K's etc., then what the fuck is Celarier talking about?

After asking myself this over and over again, I then remembered her story back in June of 2013 in which she claimed the FTC was going to tighten the "ground rules on pyramid schemes". What tickled me about her "pyramid scheme" article was that she attributed the FTC's reluctance to pursue Herbalife to the expense of "going up against such a huge, well-financed company---especially given the ambiguity of the rules" as opposed to not going after them because they are not a pyramid. The other salient point of her story was received on the back end of a FOIA request that had nothing to do with Celarier. In internal FTC communication regarding Celarier's article, one FTC staff member replied
Almost sounds as if she inferred from somebody's letter to the ftc that we were reconsidering, based on the fact that the letter wants us to reconsider (see scribd doc below) 
So in the absence of any actual evidence to support her claims, and armed with two opposing statements issued by Herbalife I can only reasonably conclude that whatever tip her "sources" gave her are either without merit or that she is slicing and dicing an old story about a former distributor that Herbalife excommunicated for bad practices. Either that or after a night of raucous debauchery in Toronto, during which Rob Ford dared her to, she and five of her friends penned drunken, stoned letters to the CCB assailing Herbalife and then she asked the CCB to comment about it. It seems pretty clear to me that she is more focused on attempting to drive down the stock price than she is on reporting the facts.

If Celarier and the NY Post can't provide us the actual data to support her story's claim that Canada has opened a formal inquiry into Herbalife International then the Post should retract her story. 

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