hlf requests for admission, bostick case

EXHIBIT A

EXHIBIT A

Case 2:13-cv-02488-BRO-RZ Document 70-2 Filed 06/02/14 of 19 Page ID #:1075

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DEFENDANTS’ FIRST SET OF

REQUESTS FOR ADMISSIONS TO PLAINTIFF DANA BOSTICK

BOIES, SCHILLER & FLEXNER LLP Jonathan D. Schiller (admitted pro hac vice) [email protected] William S. Ohlemeyer (admitted pro hac vice) [email protected] Jonathan Sherman (admitted pro hac vice) [email protected] 575 Lexington Avenue New York, NY 10022 Telephone: 212-446-2300 Facsimile: 212-446-2350 David L. Zifkin (SBN 232845) [email protected] 401 Wilshire Boulevard, Suite 850 Santa Monica, CA 90401 Telephone: 310-752-2400 Facsimile: 310-752-2490 Attorneys for Defendants Herbalife International of America, Inc., Herbalife International, Inc., and Herbalife Ltd.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DANA BOSTICK, a California citizen on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff, v. HERBALIFE INTERNATIONAL OF AMERICA, INC., a Nevada Corporation, HERBALIFE INTERNATIONAL, INC., a Nevada Corporation, HERBALIFE LTD., a Cayman Islands Corporation, Defendants.

Case No. 13-cv-02488 BRO (RZx) DEFENDANTS’ FIRST SET OF REQUESTS FOR ADMISSIONS TO PLAINTIFF DANA BOSTICK


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PROPOUNDING PARTIES: DEFENDANTS HERBALIFE

INTERNATIONAL OF AMERICA, INC.;

HERBALIFE INTERNATIONAL, INC.;

HERBALIFE LTD.

RESPONDING PARTY: PLAINTIFF DANA BOSTICK

SET: SET ONE, Nos. 1- 84

DEFENDANTS’ FIRST SET OF REQUESTS FOR ADMISSION

TO PLAINTIFF DANA BOSTICK

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, and the

Local Rules of the United States District Court for the Central District of

California, please specifically admit or deny each of the following Requests for

Admission within 30 days. In accordance with Federal Rule of Civil Procedure 26,

the failure to respond to a Request for Admission within 30 days of service shall

constitute an admission of such Request.

DEFINITIONS

Each of these definitions applies to and is incorporated into these requests,

and instructions, and each of the other definitions (collectively, the “Requests”).

1. The terms “Bostick,” “You,” and “Your” mean Plaintiff Dana Bostick,

including any of his present and former agents, representatives, attorneys, partners,

or any other person or entity acting under his control or on his behalf.

2. The terms “counsel” refers to any attorneys or employees of Fabian &

Clendenin or Foley Bezek Behle & Curtis LLP.

3. The terms “Herbalife” and “Defendants” mean Defendants Herbalife

International of America, Inc., Herbalife International, Inc. and Herbalife Ltd.,

including any of their present and former officers, directors, employees, agents,

representatives, attorneys, principals, partners, managers, predecessors, successors,

subsidiaries, corporate parents, divisions, affiliates, or any other person acting


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under their control or on their behalf.

4. The term “Pershing Square Person” means Pershing Square Capital

Management and any present or former directors, officers, executives, partners,

principals, trustees, employees, agents, attorneys, accountants, advisors and

representatives, or any other person(s) known, believed, or suspected to be acting or

purporting to act on its behalf, now or at any previous time since January 1, 2010,

including but not limited to William Ackman and Sullivan & Cromwell LLP.

5. The term “Prospective Plaintiff” means any person who has considered

bringing claims in this Action or a related action or who has had communications

with Bostick, Bostick’s counsel, or anyone else about bringing claims in this Action

or a related Action, including but not limited to Ana Buitron, Lynda Lewis, Chester

Cote, Beverly Molnar, Judi Trotter and Anita Vasco.

6. The term “Media” refers to media companies, television channels (e.g.,

ABC, NBC, CBS, Fox News, CNN, MSNBC), newspapers (e.g., New York Times,

Wall Street Journal), magazines, Internet publications, and members of the press,

including but not limited to reporters, producers, executives, interns, or their agents,

attorneys, employees or representatives.

7. The term “Giovanni Bohorquez” means Giovanni Bohorquez and any of his

present and former agents, representatives, attorneys, partners, or any other person

or entity acting under his control or on his behalf.

8. The term “Action” means Bostick v. Herbalife Int’l of America, Inc., et al.,

Case No. 13-cv-02488 BRO (RZx), pending in the United States District for the

Central District of California.

9. The term “Complaint” means the complaint filed in the Action.

10. The terms “Product” or “Products” refers to Herbalife’s entire line of

weight management, healthy meals and snacks, sports and fitness, energy and

targeted nutritional products as well as personal care products, as well as any other

items sold by Herbalife to retail customers or distributors.


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11. The term “agreement” means any written or oral agreement, contract,

promise, or other expression of agreement, including but not limited to any promise

or assurance to pay for litigation fees, expenses or costs, or indemnification.

12. The terms “communication” and “communications” mean the transmittal of

information (in the form of facts ideas, inquiries or otherwise).

13. The terms “concerning” and “related to” mean concerning, relating to,

referring to, describing, evidencing, reflecting, or constituting.

14. “Initial Disclosures” means Your initial disclosures in this Action.

15. The term “person” is defined as any natural person or any legal entity,

including, without limitation, any business or governmental entity or association.

16. The terms “all,” “any,” and “each” shall each be construed as encompassing

any and all.

17. The connectives “and” and “or” shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of the discovery request all

responses that might otherwise be construed to be outside of its scope.

REQUESTS FOR ADMISSION

REQUEST FOR ADMISSION NO. 1:

Admit that Bostick reviewed the Agreement of Distributorship attached as

Exhibit I to the Complaint prior to signing it (as alleged in paragraph 50 of the

Complaint).


Admit that Bostick reviewed a Statement of Average Gross Compensation of

U.S. Supervisors for 2012 prior to entering into the Agreement of Distributorship

attached as Exhibit I to the Complaint.


Admit that Bostick reviewed the Statement of Average Gross Compensation of

U.S. Supervisors in the Sales and Marketing Plan and Business Rules that he


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received (as alleged in paragraphs 23 and 49 of the Complaint) prior to entering

into the Agreement of Distributorship attached as Exhibit I to the Complaint.


Admit that Bostick reviewed the Statement of Average Gross Compensation of

U.S. Supervisors identified in paragraph 3.e. of the Agreement of Distributorship

attached as Exhibit I to the Complaint (Ex. I, page 2 of 5) prior to entering into that

agreement.


Admit that Bostick relied on information other than that contained in the

Statement of Average Gross Compensation of U.S. Supervisors that he received (as

alleged in paragraph 23 of the Complaint) in deciding to enter into the Agreement

of Distributorship attached as Exhibit I to the Complaint.


Admit that Bostick reviewed the Rules of Conduct and Distributor Policies

identified in paragraph 2 of the Agreement of Distributorship attached as Exhibit I

to the Complaint (Comp., Ex. I, page 1 of 5) prior to entering into that agreement.


Admit that Bostick reviewed “the IBP and the materials in the IBP” that he

received (as alleged in paragraph 49 of the Complaint) prior to entering into the

Agreement of Distributorship attached as Exhibit I to the Complaint.


Admit that Bostick reviewed the Sales and Marketing Plan and Business Rules

that he received (as alleged in paragraphs 23 and 49 of the Complaint) prior to

signing the Agreement of Distributorship attached as Exhibit I the Complaint.


Admit that Bostick reviewed the magazine, Live the Good Life! Herbalife, that

he received (as alleged in paragraph 49 of the Complaint) prior to entering into the

Agreement of Distributorship attached as Exhibit I to the Complaint.


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Admit that Bostick reviewed the “Your Business Basics” workbook that he


Agreement of Distributorship attached as Exhibit I the Complaint.


Admit that Bostick reviewed the “Using and Retailing Your Products”

workbook that he received (as alleged in paragraph 49 of the Complaint) prior to

entering into the Agreement of Distributorship attached as Exhibit I the Complaint.


Admit that Bostick reviewed the “Building Your Business” workbook that he


Agreement of Distributorship attached as Exhibit I the Complaint.


Admit that Bostick is the owner of True Professionals, Inc.


Admit that Bostick is an inspector at True Professionals, Inc.


Admit that Bostick is a thermographer at True Professionals, Inc.


Admit that Bostick is the founder of Wealth Masters.


Admit that Bostick is a referral agent at Wealth Masters.


Admit that Bostick is the owner of The Good Money Life website

(http://thegoodmoneylife.com/The-Good-Money-Life-for-YOU.php).


Admit that Bostick is the webmaster of The Good Money Life blog

(http://www.thegoodmoneylife.blogspot.com/).


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Admit that Bostick is the author of The Good Money Life blog

(http://www.thegoodmoneylife.blogspot.com/).


Admit that Bostick is the owner of Magic Leak Finders.


Admit that Bostick is the owner of Thermaldiagnostics.com (http://thermal-

diagnostics.com/Home.php).


Admit that Bostick participated in Empower Network.


Admit that Bostick participated in Ad Click Xpress.


Admit that Bostick participated in Profit-Clicking.


Admit that Bostick participated in Instant Money Team.


Admit that Bostick participated in Free Treasure Chest.


Admit that Bostick participated in Zeek Rewards.


Admit that Bostick participated in Brent Miller’s $18,000 in 3 months challenge.


Admit that Bostick has founded a referral agent training site.


Admit that Bostick was the owner of the Masterofbuzz’s Blog.

(http://masterofbuzz.wordpress.com/about/).


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Admit that Bostick was the webmaster of the Masterofbuzz’s Blog.



Admit that Bostick was the author of the Masterofbuzz’s Blog.



Admit that Bostick was the owner of www.danabostick.com.


Admit that Bostick was the webmaster of www.danabostick.com.


Admit that Bostick was the author of www.danabostick.com.


Admit that Bostick did not speak to any Herbalife employees prior to entering

into the Agreement of Distributorship attached as Exhibit I to the Complaint.


Admit that Bostick purchased Herbalife products primarily to earn monthly and

residual income.


Admit that a person was not required to purchase anything other than a mini-IBP

or IBP to become an Herbalife distributor during the period between April 1, 2009

and April 8, 2013.


Admit that Herbalife distributors could not earn commission on the sale of a

mini-IBP or IBP during the period between April 1, 2009 and April 8, 2013.


Admit that Herbalife offered a one-year return policy on all purchases of

Herbalife products (not including IBPs or mini-IBPs) during the period between


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April 1, 2009 and April 8, 2013.


Admit that Herbalife’s rules prohibited its distributors from soliciting Herbalife

products on the Internet during the period between April 1, 2009 and April 8, 2013.


Admit that Herbalife’s rules prohibited its distributors from receiving bids for

Herbalife products on the Internet during the period between April 1, 2009 and

April 8, 2013.


Admit that Herbalife’s rules prohibited distributors from offering Herbalife

products for sale at a fixed price on the Internet during the period between April 1,

2009 and April 8, 2013.


Admit that Herbalife distributors could become Supervisors without

accumulating an inventory of Herbalife products during the period between April 1,

2009 and April 8, 2013.


Admit that Herbalife distributors could become Supervisors without making

large purchases of Herbalife products during the period between April 1, 2009 and

April 8, 2013.


Admit that Bostick purchased more Herbalife product than he was confident he

could consume or resell within a reasonable period of time.


Admit that, at the time Bostick signed the Agreement of Distributorship attached

as Exhibit I to the Complaint, he believed that Herbalife promised he would earn a

profit as a distributor of Herbalife products as long as he worked hard to build his

business.


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Admit that Herbalife included a Statement of Average Gross Compensation in

every IBP and mini-IBP during the period between April 1, 2009 and April 8, 2013.


Admit that the Statement of Average Gross Compensation of U.S. Supervisors

in the Sales and Marketing Plan and Business Rules that Bostick received (as

alleged in paragraphs 23 and 49 of the Complaint) states that it does not include

amounts distributors earned on sales of Herbalife products to others.


Admit that the Statement of Average Gross Compensation of U.S. Supervisors

in the Sales and Marketing Plan and Business Rules that Bostick received (as

alleged in paragraphs 23 and 49 of the Complaint) reflects that most distributors

receive less than $1,000 annually in compensation directly from Herbalife.


Admit that Bostick relied on statements made by Eugene Rudolph in deciding to

become an Herbalife distributor.


Admit that Bostick relied on statements made by John Murphy in deciding to

become an Herbalife distributor.


Admit that Bostick relied on statements made in the Internet Business Starter

Pack attached to his Complaint as Exhibits D and E in deciding to become an

Herbalife distributor.


Admit that Bostick recruited Roger Lokey as an Herbalife distributor.


Admit that Bostick never returned any unsold product before filing his

Complaint in this Action.


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Admit that Bostick consumed, gave away to family members, or sold all of the

Herbalife product that he purchased.


Admit that Herbalife never made a promise to Bostick that Herbalife would not

make a profit on shipping fees on Bostick’s purchases of Herbalife products.


Admit that Herbalife never made a promise to Bostick that Herbalife would not

make a profit on packaging and handling fees on Bostick’s purchases of Herbalife

products.


Admit that Bostick ordered Herbalife products that shipped directly to one of

Bostick’s customer.


Admit that Bostick’s wife, Kathy Bostick, lost a civil suit to Asset Acceptance

for $6,943 in 2004.


Admit that Bostick’s wife, Kathy Bostick, had a tax lien for $9,558 entered

against her in 2007.


Admit that Bostick or his counsel has had communications with at least one

Pershing Square Person related to the Action.


Admit that Bostick or his counsel has reached an agreement with at least one

Pershing Square Person related to the Action, including but not limited to any

promise or assurance by any Pershing Square Person to pay for litigation fees,

expenses or costs, indemnification, or assistance with litigating the Action.


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Pershing Square Person concerning the initiation of the Action.



Pershing Square Person concerning the outcome of the Action.


Admit that Bostick or his counsel has shared information related to the Action

with the Media.


Admit that at least one Pershing Square Person has directed Bostick or his

counsel to the Media in connection with the Action.


Admit that at least one Pershing Square Person and Bostick or his counsel have

had communications related to contacting the Media about the Action.


Admit that Bostick or his counsel has had communications with Giovanni

Bohorquez.



Pershing Square Person concerning one or more Prospective Plaintiffs in the

Action.



Pershing Square Person concerning Ana Buitron.



Pershing Square Person concerning Lynda Lewis.


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Pershing Square Person concerning Chester Cote.



Pershing Square Person concerning Beverly Molnar.



Pershing Square Person concerning Judi Trotter.



Pershing Square Person concerning Anita Vasco.


Admit that each of the above-named Prospective Plaintiffs communicated with

Bostick before agreeing to attempt to be added as a named plaintiff in the Action.


Admit that one or more Prospective Plaintiffs communicated with at least one

Pershing Square Person before agreeing to attempt to be added as a named plaintiff

in the Action.


Admit that the Complaint states that Bostick relied on representations about

financial results.


Admit that Bostick or his counsel has had communications with non-parties to

the Action regarding Herbalife’s share price.


Admit that Bostick or his counsel has established a short position in Herbalife

stock.


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Admit that Bostick has previously filed for bankruptcy.


Admit that Bostick’s counsel has invested over one million dollars in litigating

the Action.

DATED: April 25, 2014 BOIES, SCHILLER & FLEXNER LLP

/s/ Jonathan Sherman Jonathan D. Schiller (admitted pro hac vice) William S. Ohlemeyer (admitted pro hac vice) Jonathan Sherman (admitted pro hac vice) BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY 10022 Tele: 212-446-2300 Fax: 212-446-2350 [email protected] [email protected] [email protected] David L. Zifkin (SBN 232845) BOIES, SCHILLER & FLEXNER LLP 401 Wilshire Blvd., Suite 850 Santa Monica, CA 90401 Tele: 310-752-2400 Fax: 310-752-2490 [email protected] Attorneys for Defendants Herbalife International of America, Inc., Herbalife International, Inc., and Herbalife, Ltd.


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PROOF OF SERVICE

BOIES, SCHILLER & FLEXNER LLPJonathan D. Schiller (admitted pro hac vice)[email protected] S. Ohlemeyer (admitted pro hac vice)[email protected] Sherman (admitted pro hac vice)[email protected] Lexington AvenueNew York, NY 10022Telephone: 212-446-2300Facsimile: 212-446-2350

David L. Zifkin (SBN 232845)[email protected] Wilshire Boulevard, Suite 850Santa Monica, CA 90401Telephone: 310-752-2400Facsimile: 310-752-2490

Attorneys for Defendants Herbalife International of America, Inc., HerbalifeInternational, Inc., and Herbalife Ltd.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DANA BOSTICK, a California citizen onbehalf of himself and all others similarlysituated, and on behalf of the generalpublic,

Plaintiff,

v.

HERBALIFE INTERNATIONAL OFAMERICA, INC., a Nevada Corporation,HERBALIFE INTERNATIONAL, INC.,a Nevada Corporation, HERBALIFELTD., a Cayman Islands Corporation,

Defendants.

Case No. 13-cv-02488 BRO (RZx)

PROOF OF SERVICE


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1 PROOF OF SERVICE

PROOF OF SERVICE

I, the undersigned, declare as follows:

I am employed in the County of Los Angeles, State of California. At the

time of service I was over 18 years of age and not a party to this action. My

business address is 401 Wilshire Boulevard, Suite 850, Santa Monica, CA 90401.

I served the following document(s):

DEFENDANTS’ FIRST SET OF REQUESTS FOR ADMISSIONS TOPLAINTIFF DANA BOSTICK

I served the documents on the persons below, as follows:

SEE ATTACHED SERVICE LIST

The documents were served by the following means:

By personal service. I personally delivered the documents to thepersons at the addresses listed above. (1) For a party represented by anattorney, delivery was made to the attorney or at the attorney's office byleaving the documents in an envelope or package clearly labeled toidentify the attorney being served with a receptionist or an individual incharge of the office. (2) For a party, delivery was made to the party orby leaving the documents at the party's residence with some person notless than 18 years of age between the hours of eight in the morning andsix in the evening.

By United States mail. I enclosed the documents in a sealed envelopeor package addressed to the persons at the addresses listed above and:

deposited the sealed envelope with the United States PostalService, with the postage fully prepaid.

placed the envelope for collection and mailing, following ourordinary business practices. I am readily familiar with thisbusiness's practice for collecting and processing correspondencefor mailing. On the same day that correspondence is placed forcollection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service, in a sealedenvelope with postage fully prepaid.

I am employed in the county where the mailing occurred. The envelopeor package was placed in the mail in Santa Monica, California.

By overnight delivery. I enclosed the documents in an envelope orpackage provided by an overnight delivery carrier and addressed to thepersons at the addresses listed above. I placed the envelope or packagefor collection and overnight delivery at an office or a regularly utilizeddrop box of the overnight delivery carrier.


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2 PROOF OF SERVICE

By messenger service. I served the documents by placing them in anenvelope or package addressed to the persons at the addresses listedabove and/or by electronically transmitting the documents andproviding them to a professional messenger service for service. [Adeclaration by the messenger must accompany this Proof of Serviceor be contained in the Declaration of Messenger below.]

By fax transmission. Based on an agreement of the parties to acceptservice by fax transmission, I faxed the documents to the persons at thefax numbers listed above. No error was reported by the fax machinethat I used. A copy of the record of the fax transmission, which Iprinted out, is attached.

By e-mail or electronic transmission. I caused the documents to besent to the persons at the e-mail addresses listed above.

(STATE) I declare under penalty of perjury under the laws of theState of California that the above is true and correct andthat the foregoing document(s) were printed on recycledpaper.

(FEDERAL) I declare that I am employed in the office of a member of

the bar of this court at whose direction the service wasmade.

Executed on April 25, 2014, in Santa Monica, California.

___________________________Joseph Lasher


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1 PROOF OF SERVICE

SERVICE LIST

FABIAN & CLEDENIN, P.C.Philip D. Dracht, [email protected] W. [email protected] M. Petersen, [email protected]

[email protected]

215 South State Street, Suite 1200Salt Lake City, UT 84151-0210Telephone: (801) 531 8900Facsimile: (801) 596 2814

Counsel for Plaintiff

FOLEY BEZEK BEHLE & CURTIS, LLPThomas G. Foley, Jr., [email protected] P. Karczag, [email protected] A. Curtis, [email protected] L. Arndt, [email protected] D. Gamarnik, [email protected]

[email protected]

15 West Carrillo StreetSanta Barbara, CA 93101Telephone: (805) 962 9495Facsimile: (805) 962 0722

Counsel for Plaintiff


hlf requests for admission, bostick case

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