Where Can I Buy Bestine

According to the testimony of an assistant vice president of Bestline Products, there was a total of 10,259 distributors in California as of September 30, 1972. This included 844 general distributors, 2,660 direct distributors, and 6,755 local distributors. Further statistics as to the marketing organization and the financial returns to the distributors were developed as the result of a statewide survey of the Bestline direct and general distributors made pursuant to stipulation entered into in the course of the trial. A report of the results of the survey was admitted in evidence as a court exhibit. This report showed that during the period January 15, 1971, through November 30, 1972, 3,189 new direct distributors were recruited in California. Of these, 426 (or 13 percent) became general distributors, while the remaining 2,763 (87 percent) remained direct distributors, that is, they failed to recruit two more direct distributors. The sales to the public of Bestline products accomplished by the surveyed distributors were insubstantial. The great majority of them failed to sell as much as the pre-purchase inventory acquired by them as a condition to becoming a direct distributor; 86.1 percent of them sold less than $5,000 retail value and the median was under $3,000. Sales to local distributors were equally insubstantial; 75.5 percent of all the general distributors sold less than $5,000 retail value to local distributors, whereas 98.5 percent of direct distributors sold less than $2,000 retail value to local distributors. This sales performance was apparently not atypical of the total California distribution picture. As pointed out in the reply brief of appellant Bailey, the estimated 1972 California retail sales were $3 million. Bearing in mind that at that time there was a total of 10,259 California distributors, that year the average retail sales per distributor was under $300. Taking into account only the direct and general distributors, of which there were 3,504, retail sales per direct and general distributor were less than $900. [61 Cal. App. 3d 892]

\"Actually I don't see where the language of the first injunction means something else. Actually I don't see where the language of the first injunction has any relevance here at this time. It seems to me if the People sustain their case it is going to be a, there is going to be a new injunction and the old injunction would become moot. The People are not asking for any penalties for violating the first injunction. They are not asking for anybody to be held in contempt of the first injunction. They are asking for a new injunction and civil penalties. Actually I don't see where the first injunction comes in here.\"

\"[B]ut where the principal idea of a marketing plan is for the company to make money not by selling the product, but by inducing people to invest in the program and then to persuade them to recruit other persons, rather than to sell their product to the general public, the Court believes that that kind of action should be roundly condemned and punished, where found, and the Court finds that this is what occurred and has occurred during the past three years by all of the defendants here.\" [61 Cal. App. 3d 902]

Prior to the time the court finally acted upon the matter of modifying the judgment on December 21, 1971, a notice of appeal was filed for defendants Huff and Rohn on September 28, 1973, by their then counsel Richard J. Grillo. The last hearing relating to the modification at which Attorney Grillo appeared was the September 20, 1973 hearing at which a modification was made eliminating defendant Eastis from the provision of the judgment requiring restitution and the other modification matters were taken under submission. On November 12, 1973, defendants Huff and Rohn executed a substitution of attorneys whereby Grillo was replaced by Irving Reifman. The continuances after September 20, 1973, were in each case effected by notice to counsel in court at the time the continuance was made. Neither Attorney Grillo nor his replacement was present in court later than September 20, 1973, and neither of them was otherwise notified of the continuances which occurred subsequent to Grillo's filing of the notice of appeal.

In all, there are seven separate contentions raised by the various appealing defendants. Some of these contentions are urged by all the defendants, whereas other contentions relate to a single defendant or group of defendants. The contentions and the defendants raising them are as follows:

\"Depending on the size of the sales force available to respondents, and the territory available to them, somewhere along the line, the plan had to fail as a matter of economic feasibility and mathematical certainty. No matter the junction at which this was reached, the number of latest participants would grossly exceed the sum of the participants of all prior rounds. It is patent that by far the greater number of participants could earn no commissions.

\"While the futility of the 'endless-chain' plan is obvious to the promoters, it is not apparent to the consumer participant. That enrollment within the first four rounds can earn commissions is entirely possible and credible. As was said in New v. Tribond Sales Corporation, 57 App.D.C. 197, 19 F.2d 671, 673-674, where an endless-chain scheme which would involve 516,560,852 sales by the fifteenth round was condemned: [61 Cal. App. 3d 913]

In State ex rel. Turner v. Koscot Interplanetary, Inc. (Iowa 1971) 191 N.W.2d 624, a marketing scheme whereby purchasers of cosmetics for resale were promised refund payments for each additional such purchaser introduced by them was held to have violated a prohibition against consumer fraud sales practices. In so holding, the Iowa Supreme Court said (191 N.W.2d at p. 630):

The vice of the chain scheme aspect of the Bestline marketing system upon which the first cause of action was in part based was the inherent deceptiveness found determinative in the above authorities. Since the promised rewards can only result to any level of participants in the pyramid in the event it grows to another level, it is obvious that ultimately the point will be reached where the necessary further recruitment is impossible. The fact that the point of impossibility has not been reached at the time a given recruit is brought in does not alter the fact that there must ultimately be someone deceived -- if not the current recruit, some recruits or recruits of recruits who must be induced to participate for the present prospect to succeed.

It is thus apparent that the claimed chain scheme character of the Bestline marketing program was a principal issue under the first cause of action to enjoin misleading representations, on the basis that the Bestline program was thereby rendered per se deceptive under the policy embodied in the law of this state. The legal conclusion, however, that defendants thereby committed the misdemeanor described in Penal Code section 327 was not an element of the first cause of action. That evaluation of their conduct was relevant only to the second cause of action, wherein it was relied upon to establish the \"unlawful\" character of defendants' business practice. The dismissal, therefore, of the second cause of action asserting that conclusion rendered immaterial the conclusion that defendants' conduct constituted the offense but did not affect the materiality of the fact that the Bestline program was by virtue of its embodiment of a chain scheme inherently deceptive.

Defendants argue: \"Whether appellants violate Penal Code section 327 should have been determined by a jury in a criminal proceeding.\" [61 Cal. App. 3d 916] Appellants' demand for a jury trial was denied on the ground that the relief sought in the complaint was essentially equitable in nature and the fact that imposition of civil penalties might also result did not serve to change the nature of the case. This court affirmed the propriety of proceeding in such matters without a jury in People v. Witzerman, 29 Cal. App. 3d 169, 176-177 [105 Cal. Rptr. 284], where the court said:

Defendants Bestline Corp., Bestline Products, and Bailey argue that they have erroneously been held vicariously liable for the tortious acts of others. The remaining defendants simply adopt these arguments without any attempt to demonstrate their applicability. As stated by defendants Bestline Corp. and Bestline Products: \"Although the Findings of Fact and Conclusions of Law are not explicit on the point, they irrefutably suggest that Appellants were held liable for the misleading statements and other tortious acts of persons not their agents or employees. The incidence of misleading statements found by the Court to have been caused by Appellants could not have been accomplished by Appellants' employees alone. The clear implication is that Appellants were held liable for the misrepresentations of Bestline distributors made during promotional meetings and elsewhere. (See Findings of Fact 23, 24, and 32-38; C.T. pages 2093-2100).\"

A similar assertion appears in the opening brief of defendant Bailey, where it is said: \"It is readily apparent that Appellant Bailey's liability is [61 Cal. App. 3d 918] not based on his own actions, but is rather a derivation from the tortious conduct of others. The only possible theories which would support such liability are (a) an agency relationship between Appellant Bailey and the individuals who committed the tortious acts, or (b) liability based solely upon Appellant Bailey's corporate position.\" Both briefs then launch into extended discussions of the requirements for the establishment of agency to impose liability on a respondeat superior theory.

Defendants Rohn and Huff conceded their participation in their opening brief where they stated: \"[T]hese appellants were responsible for [61 Cal. App. 3d 920] the format preparation of the Opportunity and the Direct and General Meetings.\" As heretofore poin