USANA Health Sciences - Lawsuit

Lawsuit

On 20 February 2007, Barry Minkow, an executive of the Fraud Discovery Institute, distributed a 500-page report to officials at the U.S. Securities and Exchange Commission (SEC), the Federal Bureau of Investigation (FBI), and the Internal Revenue Service (IRS) accusing USANA of operating an illegal pyramid scheme. USANA countered by lodging suits against Minkow and his company claiming defamation and stock manipulation. The company denounced Minkow as a convicted felon and liar (Minkow had served a 7-year prison term starting in 1987 for stock fraud; he later became a senior pastor for the Community Bible Church in Mira Mesa and a "fraud-buster" who assisted federal and state authorities in various fraud investigations).

According to an article published in the San Diego Reader, USANA was subsequently the subject of an investigation by the SEC. The SEC conducted a probe of USANA's business practices in March 2007 and found nothing incriminating, concluding its inquiry with no enforcement action recommended. The company's longtime auditing firm, Grant Thornton, resigned in July 2007 because it could not agree with USANA on procedures for an outside, independent investigation of the charges. Because it had no auditor, USANA was late with official government filings and was not in compliance with SEC and NASDAQ requirements.

On the day Minkow's report was released, USANA's shares had traded at $61.19 but by August the share price had tumbled to less than $35. Minkow, acknowledged that he was shorting USANA's shares, hoping to profit from a drop in the stock price. However, in reference to USANA's lawsuit, news columnist Herb Greenberg commented that the criticism of Minkow "is a bunch of malarkey; he has a right to publish his research, as long as people know his position ." Minkow had revealed in the report that he was betting for the stock to go down. USANA dropped the defamation suit and in March 2008 U.S. District Judge Tena Campbell threw out four of the five claims brought by USANA against Minkow ruling that USANAs claims violated California’s anti-SLAPP law for suing Minkow for fair criticism. and that USANA did not show a reasonable probability of winning on those claims. The judge also cited two examples where USANA failed to refute Minkow's claims that their products were overpriced and of no better quality than other lower-priced brands. The remaining charge of stock manipulation was settled in July 2008 when USANA and Minkow reached an undisclosed settlement, which included the removal of all USANA-related materials from the Fraud Discovery Institute website, a related Chinese website, and from YouTube. Minkow also agreed to never trade in USANA's stock again. Separately from the settlement, the company paid $142,510 in attorney fees to Minkow and his institute under an order from federal Magistrate Samuel Alba. Court documents show that USANA never pursued others whom they suspected of being part of the alleged stock manipulation nor did they ask for an injunction, their only avenue of release in this case.