A judge on Monday dismissed a securities lawsuit that alleged Herbalife Ltd. is a pyramid scheme and misrepresented itself as a legitimate multi-level marketer (MLM). But the plaintiffs were granted under April 8 to file an amended complaint.
Abdul Awad, an Herbalife investor, sought to represent a class of investors in a case that claimed Herbalife and its executives inflated the stock before revelations showed the MLM is a fraud.
Herbalife welcomed the decision. “As we have consistently stated, we are confident in the strong fundamentals of our business model and remain committed to helping people and communities improve their nutrition," the company said Wednesday in a statement.
While an amended complaint cited certain disclosures including a presentation by Herbalife’s adversary hedge-fund billionaire Bill Ackman and media reports that Herbalife was under investigation by a number of government agencies, U.S. District Judge Dale Fischer said such evidence was insufficient to defeat a motion to dismiss the lawsuit. He also said presentations by Ackman’s Pershing Square Capital Management didn’t reveal anything that wasn’t already publicly available.
“Absent a disclosure of wrongdoing, announcements that agencies were investigating Herbalife only exposed the possibility of fraudulent conduct," Fischer wrote in his 14-page memorandum.
Fischer distinguished the Herbalife lawsuit from one involving the home health corporation Amedisys Inc. where a Senate Finance Committee report concluded that companies under investigation had been exploiting Medicare regulations. By contrast, the plaintiffs failed to allege a government probe concluded Herbalife is a pyramid scheme, he said.
“Given Herbalife’s express disclosures that its operations and business model render it susceptible to regulatory and private challenges, the absence of any findings that Herbalife is a pyramid scheme—the heart of Plaintiffs’ misrepresentation theory—materially distinguishes this case from Amedisys," Fischer wrote.
A number of government agencies are investigating Herbalife, but they have not condemned the company or otherwise issued any public statements beyond a few agencies confirming the probes had been initiated.