Herbalife, USANA and Big Shorts

 

By Kevin Thompson, the MLM attorney:

David Einhorn, hedge fund manager for Greenlight Capital, rocked the MLM industry when he publicly asked Herbalife’s CEO about the company’s customer numbers.  During an earnings call, Einhorn asked, ”So what is the percentage that is actually sold to consumers that are not distributors?”  Herbalife’s CFO, Desmond Walsh, responds by saying, “So we don’t have an exact percentage, David, because we don’t have visibility to that level of detail.”

Shortly after the conversation, Herbalife’s stock plummeted 20%, resulting in approximately a $1.7B loss in value.  Immediately, people in the industry perceived this as some sort of an attack on the industry.  It even prompted a statement from the DSA.  In the statement, the DSA defended the practice of paying commissions on internal consumption (full statement below).  Here’s the issue I have with the DSA’s reaction: Einhorn never questioned the legality of paying commissions on internal consumption.  It has already been established, time and again, that it’s perfectly legal to pay commissions on distributor volume.  Instead, Einhorn’s decision to short the stock was basically a vote of “no-confidence.”  Based on how he bet his money, he senses a weakness in a business with anemic customer numbers.  It was a simple question, he got a squirrelly answer, he jumped ship and a boat load of people followed.  I didn’t sense anything nefarious.  He’s a capitalist, perceived a weakness, took a risk by shorting the stock and made a lot of money.

Being a publicly traded company, the percentage of customer volume is material information. Unlike what Herbalife’s CFO suggested, it’s certainly not impossible to obtain that sort of information.  I would agree that it’s impossible to produce an exact figure; however, a general sense should definitely be provided.  Today, when the customer can go directly to a replicated website and order product, there’s certainly some concrete information that’s immediately available.  As for the people that sell product face to face, it’s not hard to do a survey of a segment of the sales force and / or require that people self-report their customer sales.  The data is important and Herbalife, along with other publicly traded MLMs, should provide it in my opinion.

As for USANA, they got hosed

We’re dealing with a different set of facts with USANA.  In USANA’s case, Shortzilla, a popular site for short stock ideas, announced its short position on USANA stock shortly after watching the Herbalife drama unfold.  Instead of just asking a simple question and trading accordingly, the article on Shortzilla proceeds to make a lengthy argument that USANA operates as an illegal pyramid scheme; thus, justifying its decision to short the stock.  Check out Ted Nuyten’s site, Business for Home, for a complete report on the USANA short.  In the article, the author makes a number of factual assumptions and really mischaracterizes the legal standards distinguishing legitimate network marketing companies from MLMs.  The article smelled like it was outcome-determinative i.e. he wanted to trash USANA to further support the short position. The Shortzilla article, in my opinion, was a self-serving attack.

Conclusion

I’ve long been writing about the importance for strong customer numbers.  I’ve gone so far to write that we, as an industry, are deluding ourselves by pretending there’s not a problem.  Throughout my career in the industry, I failed to appreciate arguably the most powerful lever that will eventually lead to positive change: the market. While most companies in the space are not publicly traded, the ones that are will be pressured to provide some strong customer metrics in order to build investor confidence. Investors are getting educated.  Instead of re-hashing legal principles about the legitimacy of paying commissions on downline consumption, we need to be having a more serious conversation about ways to improve the space to improve confidence in the overall marketplace.

DSA’s Statement

WASHINGTON, D.C.—As the association representing more than 200 leading firms that manufacture and distribute goods and services sold directly to consumers, the Direct Selling Association (DSA) would like to set the record straight in response to questions raised about the direct selling business.

Unfortunately, even though the direct selling industry has definitively demonstrated the propriety of internal consumption to the regulatory community, stock prices of Herbalife and other publicly traded direct selling companies fell as a result of inquiries by hedge fund manager David Einhorn.

First and foremost, the direct selling business model is solid and strong. After falling slightly in the wake of the Great Recession, total industry sales grew nearly one percent in 2010 and are expected to show even stronger gains when 2011 numbers are announced in early June. Most publicly traded companies reported strong earnings and income in 2011.

Nearly 16 million Americans engaged in direct selling in 2011, some as full-time entrepreneurs seeking to build a business and some as part-time representatives hoping to earn a little extra money. Others sign up as representatives simply to purchase products or services for their own use at a discount and never sell to anyone else. Regardless of their income expectations, almost all direct sellers use the products themselves. This is what is known as “internal consumption.”

As the Federal Trade Commission (FTC) stated in a January 2004 Staff Advisory Opinion, internal consumption is not considered to indicate impropriety. Instead, “the critical question for the FTC is whether the revenues that primarily support the commissions paid to all participants are generated from purchases of goods and services that are not simply incidental to the purchase of the right to participate in a money-making venture.”

In short, what the FTC watches for—and what the DSA Code of Ethics is designed to protect against—are compensation systems that are funded primarily or exclusively by payments made for the right to recruit other participants. Compensation must primarily be based on the sale of products and services to the ultimate consumer—whether or not that consumer is also a seller of the products.

Unfortunately, direct sellers have been targeted in the past by short sellers who have deliberately injected inaccurate information or rumors into the marketplace with the goal of driving down stock prices for financial gain. In the end, it is the millions of hardworking American direct sellers who suffer the results of these attacks while the perpetrators walk away with millions in profit. DSA exists to protect and promote the direct selling industry by educating policymakers, the business community and the general public about the nature of the industry and how it works; and ensuring DSA member companies behave ethically in all aspects of their businesses through enforcement of the DSA Code of Ethics.

About Kevin Thompson

Kevin Thompson is a MLM attorney, entrepreneur, and agent of change. He owns and operates The Law Office of Kevin Thompson and specializes in providing legal services for startup direct sales organizations. Named as one of the top 25 most influential people in direct sales, Kevin Thompson has extensive experience and helps entrepreneurs launch their businesses on secure legal footing.

Kevin is a leader and prolific contributor in the direct sales community. He has published multiple ebooks accruing over 65,000 reads and 2,500 downloads.

He’s recently published a widely read, 80 page ebook on the changing state of the law in the network marketing industry. Read the ebook here, free of charge, to learn more about the laws in the industry. He has served as a keynote speaker at the international direct sales conference in Amsterdam.

Prior to starting his law practice, Kevin gained valuable experience while serving as Chief Counsel for Signature Management Team, LLC, also known as Team.

Team is one of the largest providers of sales aids for distributors in the network marketing industry. While at Team, Kevin worked closely with Amway and MonaVie’s compliance departments to ensure Team’s marketing materials passed regulatory review. Also during his tenure at Team, Kevin helped guide the company through commercial litigation with Amway.