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The Herbalife saga is 'far from over'

The Herbalife saga is “far from over,” according to Ted Braun, the director of “Betting On Zero” — a documentary that chronicles hedge fund manager Bill Ackman’s billion-dollar wager against the multilevel marketing company.

“If you’re looking at the nature of his accusations — the FTC’s settlement — the court order as well as the complaint — is a resounding endorsement of everything Ackman has been saying over the last three years,” Braun told Yahoo Finance.

For more than three-and-a-half years, Ackman, the CEO of $12 billion hedge fund Pershing Square Capital, has been crusading against Herbalife (HLF). In late December 2012, he publicly declared that he was short $1 billion worth of Herbalife and that the stock would go to $0. His thesis centered around his belief that the company is operating as a “pyramid scheme” that targets poor people, particularly from minority populations. He said that regulators, specifically the FTC, would shut the company down.

In mid-July, Herbalife agreed to pay a $200 million settlement with the FTC and “fundamentally restructure” its business.

The FTC alleged in its complaint that most distributors make little to no money and a substantial percentage lose money. The “small minority” of distributors who receive “substantial income” do so through recruiting participants, not actual retail sales. The complaint said the company does “not offer a viable retail-based business opportunity.”

The biggest change will be to its compensation structure. As part of the settlement agreement, Herbalife will have to change its compensation plan and track retail sales to ensure that those sales are real. They will also change the incentives that they reward people for recruiting a downline. They’ll also be prohibited from marketing tactics such as showing off a lavish lifestyle, suggesting people could attain the same if they become distributors.

Herbalife’s CEO Michael Johnson called the settlement with the FTC “an acknowledgment that our business model is sound and underscore our confidence in our ability to move forward successfully, otherwise we would not have agreed to the terms.” Herbalife’s largest shareholder — billionaire investor Carl Icahn — said in a statement that the board has increased his ownership limit from 25% to 34.99% of shares outstanding. He also noted that the investigation “concluded that Herbalife is not a pyramid scheme.”

Bill Ackman
Bill Ackman

Many have characterized this as a loss for Ackman, especially since the stock surged and has continued to hover $65 range.

The FTC didn’t shut the company down. It also didn’t explicitly call the company a “pyramid scheme” although FTC chair Edith Ramirez said during the press conference for the settlement that she does “not endorse” that statement that Herbalife was “not determined to be a pyramid scheme.”

Shortly after the settlement was announced, Ackman, who’s still maintaining his short position, called the facts in the complaint against Herbalife “sufficiently damning.” He thinks the company is “massively overvalued” and that it’s a “fraudulent business” that “will not survive.”

Braun said it’s not just a moral victory, but “a matter of fact and federal record.”

“The stories that the FTC highlights in their complaint are in complete concert with the experience of Herbalife distributors that the film reflects. They mirror it remarkably…The FTC was seeing what we were seeing,” Braun said.

The film engaged in conversation with Herbalife from production until it was finalized, Braun said. The company, however, declined to participate although he said their point of view was “fully represented in the film,” he added.

Herbalife launched a website that’s critical of the film. It had previously speculated that the film was financed by Ackman.

The film was actually financed by John Fichthorn of Dialectic Capital, CNBC’s Scott Wapner reported last week. Fitchthorn told CNBC that he covered his short position before the movie began its production.

Julia La Roche is a finance reporter at Yahoo Finance.

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