An open letter from MLM expert Robert L FitzPatrick of Pyramid Scheme Alert to the US FTC exposes illegality of multi-level marketing (MLM) schemes and how law enforcement agencies can curb it. The same applies for India where thousands of pyramid or network marketing schemes are duping gullible savers everyday and also lobbying for legitimacy
In an 'open letter' to the US Federal Trade Commission (FTC), pyramid scheme expert Robert L FitzPatrick, co-author of the book, 'False Profits', president of Pyramid Scheme Alert
and co-founder of the International Coalition of Consumer Advocates
, has provided a set of recommendations to the FTC on how to identify illegal multi-level marketing (MLM) schemes and to enforce consumer protection laws on pyramids disguised as 'direct selling'. The paper was sent following a conference call with officials of the FTC Consumer Protection Bureau in which an invitation for suggestions and recommendations was made by FTC officials.
The FTC recently prosecuted one of the larger MLMs, Fortune High Tech Marketing, but only after it had scammed more than 300,000 households and operated openly for nearly 12 years. Currently, the FTC is investigating one of the largest of all MLMs, Herbalife that has operated for more than 30 years.
Bright Lines of Illegality:
The paper submitted by FitzPatrick, entitled, Identifying 'Bright Lines' for Determining Illegality of Any Multi-Level Marketing Company under Section 5 of the FTC Act, lists telltale signs of illegality (unfair and deceptive trade practices):
1. Endless Chain Structure - The sales management chain has no sector of sales people that is focused directly and only on end-users. The sales chain expansion is without limit and without geographic restriction. All new participants, upon payment, are awarded the right and offered financial incentives to recruit more salespeople and extend the chain to multiple levels, usually six to infinity. This reward plan and structure indicate the use of the inherently deceptive“endless chain”, infinity factor” and “unlimited” income claim to induce purchases and fees.
2. Pay-to-Play – Despite providing no territorial protection or even historical saturation data provided to new salespeople, sales/ purchase quotas are imposed with specific dollar volumes of product purchases (either by the distributor personally or his/her recruitment chain). In some cases, there are structural recruiting requirements also imposed in order to maintain a position in the endless chain payment plan. These volume and recruiting quotas are signs of “pay-to-play” factors that operate in tandem with an endless chain structure and recruiting-based rewards to drive purchases and fee payments.
3. Money Transfer - The MLM employs a reward formula that overwhelmingly rewards chain extension activity that is recruiting-based over personal retail sales activity that is market-based. Evidence includes formulas that allocate higher aggregate rewards, per transaction, to those at the upper end of the chain, over those at the base and allocate total commission payout to recruiters in excess of total verified retail profits. Special bonuses and rates on total “group” volume are based on position on the endless chain. They money transfer formulas directly result in an extreme concentration of payments – 50% to 80% – of total payouts to those at the extreme upper end of the recruiting chain. As an example, the report referenced hard data on Nu Skin’s payment of 82% of all its commissions to the top 1.29% of its “active” sales force, which is 0.5% of the entire sales network.
4. Recruitment-Driven - The actual activity of the business is characterised by relentless recruiting, churning and transferring funds from later participants to earlier ones.
5. Little Evidence of Market-based Retail Selling - Little evidence, gained from an examination of marketing materials, website, and reports from participants or researchers, of market-based retail sales, per salesperson, and little evidence of retail profit gains among the sales force.
6. No Income Opportunity for Nearly All Participants - Large-scale losses are evident in the sales force, even among those in the upper one-third of sales chain.
Law Enforcement Guidelines
For law enforcement, the report offered specific reforms that would put any MLM on the legal side.
1. Limit the number of levels that any individual salesperson can personally recruit and gain override commissions to one or several. In combination with other reforms, this measure would eliminate the infinity factor.
2. Require that commissions be awarded only on consummated retail sales, that is to persons who are not signers of the company’s sales contract and are not eligible for recruiting-based rewards.
3. Allow no commissions to be paid on any purchases made by other salespeople or on the salesperson’s own account. This reform eliminates a major incentive for recruiting and for making personal purchases. It would also clearly indicate that all purchases made by the sales force are market-based.
4. Eliminate all purchase/ sales volume or recruiting requirements in order to maintain sales and recruiting authorization. With no geographic limitations or protections placed on MLM salespeople, and no information available on market saturation factors, volume and recruiting requirements serve no other purpose than as recruiting inducements.
5. Establish limited territories for distributors who want to develop sales teams with authorisation based upon management selection. The current practice of open-ended, even global territories and escalation on the sales chain being based purely on volume/ recruiting performance is a telltale indicator of the “endless chain” inducement and the lack of a real-world market basis for sales.
Principles of FTC Law Enforcement and Consumer Protection from Illegal MLMs
1. The establishment of an understandable and consistent “bright line” requires that the FTC take a clearly stated legal stand against the groundless and nonsensical claim of MLM promoters that purchasing products by the participants in multi-level marketing exempts the enterprise from an illegal pyramid definition. The bogus identity of “direct selling” by pyramid selling schemes and the claim of exemption from a pyramid scheme definition based on product purchases have confused and misled millions of consumers (“If the MLM sells a product, it’s can’t be a pyramid!”).
MLM lobbyists have claimed that pyramid scheme definitions must exempt enterprises in which rewards are gained through product sales “to participants.” They have lobbied for this “product exemption” in state laws and tried to get a federal law passed in 2003. In fact, in case after case of MLMs prosecuted by the FTC, the selling products was the disguise of choice, and “direct selling” turned out to be a false identity.
2. FTC must establish and publish a set of recognizable actors indicative of the use of the endless chain as a marketing device, once the endless structure is identified as part of that MLM’s business model.
The evidence of the use of endless chain marketing to induce purchases and fee payments is found in the MLM’s pay formula and in the statement of policies and procedures, both of which are generally published.
Additional evidence can be found in income disclosure documents, website, webinars and in SEC filings.
Evidence of the use of the endless chain is manifested in verifiable loss and churn rates and absence of profitable retail selling. Referencing these classic elements of a pyramid disguised as a sales company can be done in a matter of hours or days. Pyramid fraud is frequently in plain sight.
Mandate for Action Now
By offering bright lines and recommendations for law enforcement, the “Open Letter” supports the message of urgency that the International Coalition of Consumer Advocates delivered to the FTC in October, 2013 with it White Paper and petitions.
Currently, the FTC lacks a consistent or understandable standard for determining illegality of any MLM, rendering effective FTC prosecution and law enforcement in MLM sector essentially impossible and, indeed, virtually non-existent.
By any standard, this position for a law enforcement agency is intolerable. It leaves millions of people in America and around the world without any means of distinguishing legitimate direct selling opportunities from pyramid swindles. In recent years, these schemes have begun targeting the most vulnerable sectors of the public, students and immigrants. The FTC’s untenable position has also generated a dangerous uncertainty in the securities markets, putting pension funds at risk that are invested in MLM enterprises that are being openly challenged for operating illegally.
The scenario in India
Coming back to home, Moneylife has been continuously writing about the inaction by government and regulators regarding MLM companies, money circulation schemes, pyramid-marketing schemes and other similar companies that swindle the unwary public by offering them misleading inducements and depriving them of their hard-earned savings.
In April 2013, after the collapse of Saradha group, the ministry of corporate affairs (MCA) in a face saving measure has decided to hand over probe of such chit-fund, MLM, Ponzi and pyramid scheme operators to a Special Task Force under the Serious Fraud Investigations Office (SFIO). The ministry said the probe has been ordered in view of a larger public interest involved in the issues, although the state governments are the appropriate authorities for regulation of such chit fund companies and schemes under the Chit Fund Act, 1982.
Here are some of the important stories written and representations made by Moneylife over the years…
In May 2011, following the exposé by Moneylife on Speak Asia Online Pte Ltd and its MLM scheme, Moneylife Foundation sent a representation to prime minister Dr Manmohan Singh, (the then) finance minister Pranab Mukherjee, finance secretary Sushama Nath and Reserve Bank of India (RBI) governor D Subbarao urging them to ban all MLM companies and their schemes in the country, or to bring all MLM companies under the regulation of either the RBI or the Securities and Exchange Board of India (SEBI), to stop them ensnaring gullible people.
The massive money, which is raised surely shows somewhere on the balance sheet of the company, filed regularly with the MCA. The primary recipient of the information about these companies is the MCA, and surprisingly the MCA is the least proactive in the entire process of bringing these perpetrators to regulatory focus, sooner before tonnes of money vanish.
Dubious pyramid schemes or money-circulation schemes are looting Indians across economic strata, finds Sucheta Dalal. This will continue since Central and state governments seem unconcerned.
Pyramid marketing companies are looting the public easily, while the government watches. Many countries have banned them outright.
A strange deposit scheme that is proliferating in the states of Orissa, Chhattisgarh, Karnataka and Maharashtra has already collected almost Rs1,000 crore and is expanding virtually unchecked. The scam has elements of money-laundering and possibly the use of fake and forged currency as well; however, the banking regulator would like to pass off the investigation to the respective state governments for investigation under the antiquated Prize Chits and Money Circulation Schemes (Banning) Act.
An international network marketing scheme hawking expensive limited edition coins is attracting a huge following. Sucheta Dalal examines this strange quest.
Moneylife readers know how MLM schemes ensnare lakhs of people by promising extraordinary returns. We learn from the ministry of consumer affairs that the government is now waking up to the need for better regulation of MLMs and ponzis. At the same time, the powerful Direct Selling Association of the US is lobbying hard for an amendment.
Pyramids are pure fraud. Their business is unsustainable-they promise payment for goods or services of dubious value. The hallmark of these schemes is the promise of sky-high returns in a short period of time, for doing nothing other than simply handing over your money to them, and getting others to do the same.
Even as India bans pyramid schemes under a statute called the Prize Chits and Money Circulation Schemes (Banning) Act, 1978, the country continues to be a happy hunting ground for pyramids because our legislation is deliberately unworkable.
Investors losing money, or falling for dubious Ponzi schemes, is not a recent phenomenon; this has been happening for decades and it is not restricted only to India. Why is it that people repeatedly fall prey to such schemes in spite of being aware of the frauds perpetrated by conmen under different guises?
EAS Sarma, former power and finance secretary, said the ministry of finance, Reserve Bank of India (RBI), Securities and Exchange Board of India (SEBI), and the investigating agencies should collectively tackle this problem without any delay, as every day of procrastination will only result in thousands of hapless families cheated by the promoters of these schemes.
Spokespersons and dealers of multi-level marketing (MLM) schemes or network marketing schemes respond to questions about their legitimacy by brandishing a 2003 letter issued by the then secretary, ministry of corporate affairs (MCA). What they omit to mention is that the letter was subsequently annulled following complaints about its misuse. This means, the letter used by these scamsters is no more valid.
While there are existing laws such as Indian Penal Code (IPC), the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (PCMCS Act) and others under which concerned agencies could prosecute the culprits, there is no effective mechanism in place to ensure a coordinated approach to identify the fraudulent operators in advance and book them well before they destroy the livelihoods of thousands of households and launder the ill-gotten funds to unknown destinations.
A set of powerful MLMs, which are part of an exclusive closed club, called the Indian Direct Selling Association or IDSA (on the lines of the Direct Selling Association of the US) has been lobbying hard to make a distinction between their operations and those of others, who they call, fly-by-night operators such as SpeakAsia and Ad Magnet.
QNet, the controversial Hong Kong-based multi-level marketing (MLM) operator with multiple names (GoldQuest, QuestNet, QNet, QI Ltd and QI group are the better known names) refused to answer simple questions like how much money their independent representative (IR) earns on an average every month and why their products are priced so highly. Instead, it sent us a threatening and defamatory mail that raises more questions as to their real motive.
If 2010 was the year of great Indian scams, 2011 was rather of ponzi and multi-level marketing (MLM) frauds. SpeakAsia managed to top the chart, but soon many others joined the bandwagon, duping gullible investors for several thousand crores.
Nothing comes free in this world, especially money. The universal truth is you need to earn your money by hard labour all the time and there are no shortcuts to double it in the shortest span of time. Therefore, even if your near and dear ones tell you he/she will double, triple, quadruple your money within a few days/months, politely reply to them that it is not possible and what they are advocating is a pure 'get-rich-quick' type of scam.
Herbalife, a global MLM scheme also prevalent in India, is believed to be worthless according to hedge fund manager Bill Ackman, who made a detailed presentation on why consumers should avoid buying the company’s products and stay away from the MLM.