(admitted pro hac vice) lead counsel for plaintiffs -...

Case 2:07-cv-00177-DAK Document 41 Filed 12/03/2007 of 30

Daniel B. Scotti (admitted pro hac vice)DREIER LLP499 Park AvenueNew York, New York 10022Telephone: (212) 328-6100Facsimile: (212) [email protected]

Lead Counsel for Plaintiffs

Jan Graham (01231)GRAHAM LAW OFFICESAmbassador Plaza150 South 600 East Suites 5A & 5BSalt Lake City, UT 84102Telephone: (801) [email protected]

Associated Local Counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

ASHOK KAPUR,Individually and On Behalf of All OthersSimilarly Situated, CIVIL ACTION NO. 2:07cvl77 DAK

Plaintiffs, (Consolidated:2:07cv214TS;2:07cv280BSJ)

V.

USANA HEALTH SCIENCES, INC., : PROPOSED CLASS ACTIONMYRON W. WENTZ, DAVID A. WENTZ,GILBERT A. FULLER

DEMAND FOR JURY TRIALDefendants.

AMENDED CONSOLIDATED CLASS ACTION COMPLAINTFOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS

Lead Plaintiff Irina Sech, individually and on behalf of all others similarly situated,

alleges the following upon personal knowledge as to herself and her own acts, and as to all other


matters, based upon an investigation by plaintiffs counsel, which included, among other things,

interviews of former associates and employees of USANA Health Sciences, Inc. ("USANA" or

the "Company") (including employees who worked in accounting, finance, customer service and

data management), and review and analysis of. (i) the public filings of USANA, including its

filings with the United States Securities and Exchange Commission (the "SEC"); (ii) news

articles, press releases, analyst conference calls and securities analyst reports by or relating to

USANA; (iii) pleadings and other court documents in the action captioned Johnson v. USANA

Health Sciences, Inc., Case No. 37-2007-00053808-CU-BT-NC (Cal. Super. Ct.); (iv) reports by,

and other materials from, the Fraud Discovery Institute'; (v) legal precedents and statutes

concerning illegal pyramid schemes; (vi) SEC filings of certain of USANA's competitors; and

(vii) additional information readily available on the Internet. Lead Plaintiff believes that further

evidentiary support for the allegations set forth below will exist after a reasonable opportunity

for discovery.

NATURE OF THE ACTION

1. Lead Plaintiff brings this action as a class action on behalf of a class of purchasers

of USANA common stock between July 18, 2006 and continuing through and including March

The Fraud Discovery Institute's reports on USANA were the culmination of three years of investigativeresearch. According to the Fraud Discovery Institute, that investigation included: (i) interviewingnumerous witnesses; (ii) reviewing and analyzing court records and financials statements; (iii) attending abusiness opportunity presentation at USANA's corporate headquarters (and secretly taping thepresentation); (iv) commissioning Jon M. Taylor, Ph.D, President of the Consumer Awareness Institute,to analyze USANA's multi-level marketing system for similarities to an unlawful pyramid scheme (forhis report, Dr. Taylor conducted an extensive investigation of USANA, including interviews withnumerous current and former Company insiders); (v) commissioning Robert Fitzpatrick, President ofPyramid Scheme Alert, Inc. (a non-profit, all-volunteer entity that describes itself as "the first consumerorganization to confront the abuses and trickery of pyramid scheme perpetrators") to investigate USANAand opine on whether the entity constitutes a pyramid scheme; (vi) commissioning Covance Laboratories,Inc., an independent laboratory, to perform chemical analyses on USANA's products; and (vii) hiringprivate investigators Expol Limited to investigate the background of Myron Wentz.

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14, 2007 (the "Class Period"), to recover damages caused by defendants' violations of the anti-

fraud provisions of the federal securities laws.

2. USANA develops and manufactures nutritional, personal care and weight

management products. To distribute and "sell" the Company's products, throughout the Class

Period, USANA utilized a multi-level marketing system -- a chain of vertically-organized,

independent distributors, who were referred to as "Associates."

3. Unlike legitimate multi-level marketing companies, USANA operated very much

like an unlawful, unsustainable pyramid scheme. As alleged below, USANA was almost entirely

recruitment focused and there was very little real demand for the Company's products. USANA

Associates were lured to join the scheme through high-pressure recruiting tactics that promised

financial freedom. They joined USANA because they hoped to make money, not because they

were interested in using the Company's products. Associates were trained to focus on recruiting

new members rather than on selling the Company's products, were forced to make large up-front

payments for "training" materials, and were required to make minimum purchases of USANA

products on a monthly basis. It was those required purchases that constituted the vast majority

of the Company's reported sales.

4. In light of the fact that USANA's products were highly overpriced and there was

very little demand by actual end users, most Associates failed within the first few months. As a

result, the Company experienced an exceedingly high Associate attrition rate and, therefore, had

to constantly recruit tens of thousands of new Associates each year to replace those who had left

the Company. Despite the Company's high-pressure recruiting tactics, as the pool of prospective

Associates became saturated, it became increasingly more difficult to recruit new members into

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the scheme. Thus, the sustainability of USANA's business model for the long term was highly

questionable.

5. Despite this harsh reality, throughout the Class Period, defendants issued a

number of material misstatements and omissions that were designed to and did conceal the true

nature of the Company's business and long-term business prospects. For example, defendants

concealed the Company's extraordinarily high attrition rate, materially manipulated the reported

average income per Associate and falsely represented that sales growth was the result of great

"enthusiasm" for the Company's products when, in fact, the bulk of the Company's revenues

represented mandatory purchases of products that Associates had no desire to use personally and

little hope of reselling. Significantly, USANA's Associate attrition rate was the topic of regular

reports distributed to, and weekly meetings amongst, the Company's most senior management;

nevertheless, defendants chose not to share this material information with the investing public.

6. Defendants further concealed that the Company's business model and practices

shared many characteristics that are often associated with unlawful pyramid schemes, including

that: (i) there was very little retail demand for the Company's products by end users; (ii) the

Company was recruitment focused, not product focused; (iii) Associates were required to pay

large entry fees; (iv) Associates were required to make minimum purchases of product on a

monthly basis; (v) Associates were rewarded for recruiting new members into the chain; (vi) the

vast majority of associates failed and only a handful of people at the very top of the pyramid

were profitable; and (vii) the Company employed high pressure recruiting tactics that promised

enormous financial success.

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7. As a result of these false statements and material omissions, USANA common

stock traded at artificially inflated or distorted prices throughout the Class Period, trading as high

as $61.80 on February 21, 2007.

8. The Individual Defendants took advantage of the artificial inflation in the price of

USANA's shares -- and the effectiveness of their materially false statements and omissions -- by

selling tens of thousands of shares of their privately-held USANA stock, for total proceeds in

excess of $7.6 million. Defendant Myron Wentz's reported sale of 85,000 shares (for proceeds

of more than $5.1 million) was particularly suspicious because of its proximity to the Company's

materially false and misleading February 6, 2007 press release and the five-year high in the

Company's stock price. Moreover, as further evidence of defendants' fraudulent scheme and

illegal course of conduct, at no time during the Class Period did any off the defendants purchase

any USANA stock on the open market.

9. On March 15, 2007 an article in the Wall Street Journal revealed that the Fraud

Discovery Institute had issued a shocking report that raised many serious concerns about

USANA. The report (which was forwarded to government regulators) exposed, among other

things, that: (i) the Company's business model was untenable because the vast majority of the

Company's reported sales were made to distributors who were not end users of the products; (ii)

the Company's long-term growth prospects were unsustainable because growth was almost

entirely dependent upon recruitment, rather than upon an increase in retail demand for the

Company's products; (iii) at least 85% of the Company's distributors, who accounted for 86% of

the Company's revenues, were losing money; (iv) at least 74% of distributors were failing

within the first year; (v) only the top 3% of distributors were receiving 70% of Company-paid

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commissions; (vi) the Company materially misrepresented the "average income" for distributors;

(vii) the Company's products were hopelessly overpriced; and (viii) the Company's ability to

attract new distributors would be materially adversely affected if prospective distributors were

aware of the Company's failure and . collapse rates, the inability to resell hopelessly overpriced

products and that most of the commissions are received by the top 3% of the USANA

distributors.

10. In reaction to this shocking news, shares of the Company's common stock

plummeted $8.92 per share, or over 15%, to close on March 15, 2007 at $49.85 per share, on

unusually heavy trading volume.

11. On March 19, 2007 the Company announced that the SEC was commencing an

informal investigation into the Company. On June 13, 2007, the New York Post reported that the

SEC investigation included inquiries into Myron Wentz's sale of 85,000 shares on February 12,

2007 for millions of dollars in proceeds. Significantly, the date of that stock sale represented

USANA's near five-year high in share price. It was just one month later that the fraud was

revealed and the stock price plummeted. Also in June 2007, USANA Associates commenced a

class action lawsuit against the Company and certain of its senior officers, alleging, among other

things, that the Company operated as an unlawful pyramid scheme and that defendants made a

number of material misstatement and omissions to conceal that reality. On August 8, 2007,

Forbes. com reported that the Federal Bureau of Investigation ("FBI") had launched a criminal

investigation into USANA's-activities.

12. USANA's stock price has never recovered from the March 15, 2007 revelation,

closing at $41.68 on November 30, 2007.

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JURISDICTION AND VENUE

13. The claims asserted herein arise under Sections 10(b) and 20(a) of the Exchange

Act, (15 U.S.C. §§ 78j(b) and 78t(a)), and Rule lOb-5 promulgated thereunder (17 C.F.R. §

240. l Ob-5).

14. This Court has jurisdiction over the subject matter of this action pursuant to

Section 27 of the Exchange Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331.

15. Venue is proper in this District pursuant to Section 27 of the Exchange Act, 15

U.S.C. § 78aa, and 28 U.S.C. § 1391(b), as many of the acts alleged herein, including the

preparation and dissemination of materially false and misleading information, occurred in this

District. USANA maintains its corporate headquarters in this District.

16. In connection with the acts, conduct and other wrongs alleged in this complaint,

defendants, directly or indirectly, used the means and instrumentalities of interstate commerce,

including but not limited to, the United States mails, interstate telephone communications and

the facilities of a national securities exchange.

THE PARTIES

17. Lead Plaintiff purchased shares of USANA common stock at artificially inflated

prices during the Class Period and has been damaged thereby. A copy of the certification of

Lead Plaintiff is attached hereto as Exhibit A and is incorporated by reference herein.

18. Defendant USANA is a Utah corporation with its principal place of business

located at 3838 West Parkway Blvd., Salt Lake City, Utah. At all relevant times, USANA

common stock was actively traded in the NASDAQ under the symbol "USNA."

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19. Defendant Myron W. Wentz, the Company's founder, was, at all relevant times,

the Company's Chairman and Chief Executive Officer. He signed the Certification that

accompanied the materially false and misleading Form 10-Q filed with the SEC on August 8,

2006, the Certification that accompanied the materially false and misleading Form 10-Q filed

with the SEC on November 7, 2006, and the materially false and misleading Form 10-K filed

with the SEC on March 8, 2007, along with the accompanying Certification. During the Class

Period, defendant Myron Wentz reported selling 85,000 shares of his personally held USANA

stock acquired through the exercise of options, for total illicit proceeds of at least $5,183,300.

He made no open-market purchases during the Class Period.

20. Defendant David Wentz, the son of defendant Myron. Wentz, was, at all relevant

times, the Company's President and a director, and according to the Company's website,

"manages USANA's day-to-day operations." He signed the materially false and misleading

Form 10-K filed with the SEC on March 8, 2007. During the Class Period, defendant David

Wentz reported selling 20,000 shares of his personally held USANA stock acquired through the

exercise of options, for total illicit proceeds of at least $883,450. He made no open-market

purchases during the Class Period.

21. Defendant Gilbert A. Fuller ("Fuller") was, at all relevant times, the Company's

Chief Financial Officer, Chief Accounting Officer, and Executive Vice President. Defendant

Fuller signed the materially false and misleading Form 10-Q filed with the SEC on August 8,

2006, along with the accompanying Certification, the materially false and misleading Form 10-Q

filed with the SEC on November 7, 2006, along with the accompanying Certification, and the

materially false and misleading Form 10-K filed with the SEC on March 8, 2007, along with the

8


accompanying Certification. During the Class Period, he reported selling 33,700 shares of his

personally held USANA stock acquired through the exercise of options, for total illicit proceeds

of at least $1,541,815. Defendant Fuller made no open-market purchases during the Class

Period.

22. Defendants Myron Wentz, David Wentz, and Gilbert Fuller as identified above

are collectively referred to hereinafter as the "Individual Defendants." The Individual

Defendants, because of their positions with the Company, possessed the parallel power and

authority to control the contents of USANA's reports to the SEC, press releases and

presentations to securities analysts, money and portfolio managers, and institutional investors,

i.e., the market. Each defendant was provided with copies of the Company's reports and press

releases alleged herein to be misleading prior to or shortly after their issuance and had the ability

and opportunity to prevent their issuance or cause them to be corrected. Because of their

positions and access to material non-public information available to them, each of these

defendants knew that the adverse facts specified herein had not been disclosed to and were being

concealed from the public, and that the positive representations which were being made were

then materially false and misleading. The Individual Defendants are liable for the false

statements pleaded herein, as those statements each constituted "group-published" information,

the result of the collective actions of the Individual Defendants.

INVESTIGATIVE SOURCES

23. In addition to the investigative sources set forth above, sources who provided

information for Lead Counsel's investigation include the following individuals who have

knowledge and information with respect to matters alleged herein:

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(a) Confidential Witness No. 1 ("CW-1") is an individual who worked as a

Document Control Representative in USANA's accounting department from November

2006 through February 2007. CW-1's responsibilities included, among other things,

processing and filing all of checks written by USANA.

(b) Confidential Witness No. 2 ("CW-2") is an individual who worked as a

Distributor and Customer Service Representative at USANA from April 2006 through

May 2007. CW-2's responsibilities included, among other things, assisting Associates

with product orders, product returns, commissions and credits, and other customer service

issues.

(c) Confidential Witness No. 3 ("CW-3") is an individual who worked as an

Order Express Agent in USANA's call center in Tooele, Utah from December 2006

through November 2007. CW-3's responsibilities included, among other things,

providing customer service on inbound telephone calls, taking telephonic orders of

products, signing up new customers and tracking delivery of packages.

(d) Confidential Witness No. 4 ("CW-4") is an individual who worked as a

Data Warehouse Specialist in USANA's Salt Lake City facilities from 1999 through

February 2005. CW-4's responsibilities included, among other things, retrieving and

providing data that was exported into Excel, Crystal Reports and other software

applications to generate weekly and monthly internal reports at USANA. One of the

reports prepared by CW-4 on at least a monthly basis included the details regarding the

Company's Associate attrition rate; each time that report was prepared, copies were

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emailed to senior management at the Company, including defendants Fuller and David

Wentz.

(e) Confidential Witness No. 5 ("CW-5") is an individual who worked as the

Company's Manager of Financial Analysis from 2000 through 2003 and thereafter

worked in contract manufacturing for a USANA subsidiary from 2004 through 2005.

The person to whom CW-5 reported as the Manager of Financial Analysis, in turn,

reported directly to defendant Fuller. CW-5's responsibilities as the Manager of

Financial Analysis included, among other things: managing credit and collections;

performing financial analysis; reviewing chargebacks; reviewing promotions and pricing

structures; preparing financial reports for the Company's senior management; and

attending weekly meetings with Fuller and other senior officers to discuss financial

matters. CW-5 recalls that Associate attrition reports were always discussed at these

weekly meetings. Although CW-5's five-year tenure with the Company predates the

Class Period, CW-5's recollection that attrition rates were discussed every week at

meetings with USANA's senior management clearly establishes a pattern that

undoubtedly continued throughout the Class Period. Moreover, CW-5's recollection that

attrition reports were regularly forwarded to the Company's most senior management is

corroborated by the recollections of CW-4, who was with the Company for six years.

(f) Confidential Witness No. 6 ("CW-6") is an individual who worked as a

USANA Associate in California from September 2006 through May 2007. As a USANA

Associate, CW-6 attended training sessions that were highly "recruitment focused", made

required purchases of training materials, made monthly purchases of USANA products

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not for personal use but rather because such purchases were required, and made

substantial efforts to recruit down-line Associates into the distribution chain.

(g) Confidential Witness No. 7 ("CW-7") is an individual who worked as a

USANA Associate in California from August 2005 through February 2007. Like CW-6,

as a USANA Associate, CW-7 attended training sessions that were highly "recruitment

focused", made required purchases of training materials, made monthly purchases of

USANA products not for personal use but rather because such purchases were required,

and made substantial efforts to recruit down-line Associates into the distribution chain.

(h) Confidential Witness No. 8 ("CW-8") is an individual who worked as a

USANA Associate in California from November 2005 through May 2006. Like CW-6

and CW-7, as a USANA Associate, CW-8 attended training sessions that were highly

"recruitment focused", made required purchases of training materials, made monthly

purchases of USANA products not for personal use but rather because such purchases

were required, and made substantial efforts to recruit down-line Associates into the

distribution chain.

BACKGROUND ALLEGATIONS

Distinguishing Legitimate Multi-level MarketingBusinesses from Unlawful Pvramid Schemes

24. Multi-level marking is a system of retailing, whereby a company sells its products

to end users through tiered layers of distributors and each distributor is entitled to receive a

portion of the commission on sales made to end users by other distributors whom they recruit

and train. A legitimate multi-level marketing program is product focused and, therefore,

12


survives by generating revenue and profits from product sales to end users, rather than by simply

recruiting new salespersons. Sales growth, with a legitimate multi-level marketing system,

occurs with an increase in demand for the Company's products by end users. As additional

distributors are recruited, the number of people marketing and selling the company's products to

end users expands.

25. Unlawful pyramid schemes, by contrast, are recruitment focused. Participants

are trained and encouraged to focus on recruiting new distributors, rather than on marketing and

selling products to retail consumers, thus making it unlikely that meaningful opportunities for

retail sales to users outside the program will occur. Pyramid schemes are often characterized by

low retail demand for the company's products.

26. Over time, the hierarchy of participants in an unlawful pyramid scheme resembles

the form of a pyramid as newer, larger layers of participants join the established structure, Often

times, commissions or other rewards are based on the number of distributors recruited. Most of

the product sales are made to these distributors, rather than to retail consumers outside of the

distribution chain. Even where a marketing/distribution plan formally bases commissions on

product sales, the plan still may be deemed an illegal pyramid scheme if, in practice, profits are

derived primarily from the recruitment of new participants.

27. With most unlawful pyramid schemes, participants are required to make a

payment of money or other valuable consideration to the Company in exchange for the right to

sell the company's products, recruit new members into the scheme, and receive commissions or

other rewards which are unrelated to the sale of product to the ultimate end user. Such

consideration is often in the form of: (i) training or marketing materials that the distributors are

13


required to purchase; or (ii) minimum orders of products that distributors are required to make

(commonly referred to as "inventory loading").

28. Pyramid schemes may generate profits for those at the top of the pyramid, but

inevitably result in failure for those at the bottom of the chain, as the market becomes saturated.

As a result, pyramid schemes are characterized by a high rate of failure by, and consequently a

high rate of attrition amongst, those at the bottom of the recruitment chains.

29. Pyramid schemes are unlawful because they are inherently fraudulent.

Individuals who buy into such a scheme exchange valuable consideration for an illusory

"opportunity" to make more money. In light of the structure of the scheme and the inherent

saturation of the market that occurs, it is impossible for newer recruits to achieve the levels of

income necessary to survive_ let alone the levels of income nromised at the time thev were

recruited. Further, pyramid schemes erode consumer confidence in legitimate multi-level

marketing programs, which can, in some instances, offer valuable opportunities to participants

and consumers.

30. Perpetuators of pyramid schemes are subject to substantial liability from a

multitude of state and federal agencies. For example, United States Attorneys may initiate action

against scheme perpetuators for racketeering under the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1961, et seq., or under the Sherman Antitrust Act, 15

U.S.C. § 1, et seq., for conspiring to control the sales and distribution of a product. The Federal

Trade Commission frequently prosecutes the perpetuators of pyramid schemes for violations of

the Federal Trade Commission Act, 15 U.S.C. § 45, et seq. The Securities and Exchange

Commission has deemed certain pyramid schemes as "investment contracts" and, therefore, in

14


violation of the Securities Act of 1933, 15 U.S.C. § 77a, et seq. and Securities Exchange Act of

1934, 15 U.S.C. § 78a, et seq.

31. Pyramid schemes constitute a criminal violation of Utah's Pyramid Scheme Act,

U.C.A. (1983) § 76-6a-3 and a civil violation of the Utah Consumer Sales Practices Act, U.C.A.

(1973) § 13-11-4. Most other states also maintain criminal and civil statutes prohibiting pyramid

schemes as unlawful.

32. Regulators in other countries also police pyramid schemes as unlawful, including

regulators in USANA's largest and newest markets. In Canada, USANA's largest market

outside of the United States, the Competition Bureau prosecutes violators of the Competition

Act, R.S.C. 1985, ch. 34 (1985), amended by 1992 S.C., ch. 14 (Can.) for "scheme(s) of pyramid

selling." In Australia, USANA's second largest foreign market, the Australian Competition and

Consumer Commission polices violations of the Trade Practices Act, 1974, § 65 (Austl.) for

engaging in a pyramid selling scheme.

33. USANA continues to expand into Asian markets. In the first quarter of 2007,

USANA expanded into Malaysia. Recognizing the growing and pernicious threat of pyramid

schemes, on July 19, 2007 Malaysian Domestic Trade and Consumer Affairs Minister Datuk

Mohd Shafie Apdal announced that Malaysia's Direct Selling Act, 1993 would be amended to

include provisions prohibiting pyramid schemes. Other Asian nations in which USANA does

business already prohibit pyramid schemes as unlawful. For example, Hong Kong, USANA's

second largest Asian market after Australia-New Zealand, prohibits pyramid selling schemes as

violations of the Pyramid Selling Prohibition Ordinance, (1997) Cap. 355, § 3. (H.K.).

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34. In recent years, pyramid schemes have come under increased levels of scrutiny by

government regulators within the United States. On April 5, 2006, shortly before the start of the

Class Period, the Federal Trade Commission proposed the Business Opportunity Rule requiring,

inter alia, that multi-level marketing companies make extensive disclosures to new recruits and

mandating a seven-day waiting period before a prospective recruit may join. On April 12, 2006,

the rule was posted in the Federal Register for public comment. Business Opportunity Rule, 71

Fed. Reg. 19,054 (April 12, 2006). Despite the lobbying efforts of USANA and others, on July

1, 2007, the Federal Trade Commission promulgated the rule as Business Opportunity Rule, 16

C.F.R. § 437.1. Under the rule, companies must furnish new recruits with an extensive

"disclosure statement" that includes a plethora of information, including: (i) an outline of recent

legal action involving the company; (ii) the number of direct sellers who cancel within two

years; and (iii) the total funds that the recruit will have to pay to participate in the multi-level

marketing program, including inventory purchases. In addition, any earnings claims made by a

multi-level marketing company must be accompanied by detailed substantiation.

SUBSTANTIVE ALLEGATIONS

USANA Possessed Many CharacteristicsOf An Unlawful Pvramid Scheme

35. Many of the characteristics of USANA's business model, growth strategy,

compensation structure and business practices closely resembled those of an unlawful pyramid

scheme.

36. The structure of USANA's multi-level distribution system encouraged the

constant recruitment of new Associates into the chain. USANA referred to its multi-level

marketing system as the USANA Binary Compensation Plan (the "Plan"). Under the Plan, an

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Associate created a "business center" (which did not require the Associate to open an office or

any other physical entity; the business center simply represented the Associate's position within

the USANA distribution chain), and then recruited two additional Associates to serve as the left

and right sides of that business center. Individuals who were later recruited into the Plan were

placed below these two initial recruits. The left-side and right-side of the Associate's business

center were awarded group sales volume points based upon the product sales of down-line

members in the chain. Those points were then translated into commission points, for which the

Associate's business center was compensated. The number of volume points a business center

could earn was capped at 5,000 per week; however, an Associate could maintain multiple

business centers simultaneously. Once an Associate's business center reached the maximum

level of 5,000 points, he or she was given an opportunity to open a new business center and

continue the pattern.

37. USANA was a company that was focused almost entirely on recruiting and

growing the pyramid of Associates, rather than on sales of the Company's products to end users.

When new Associates joined the Company, they were trained to recruit, not to sell products.

CW-8 estimates that 85% of the training Associates received was focused on recruiting, and that

products and sales were treated as "an afterthought." CW-6 maintains that the Company's

emphasis was "so strongly on recruiting" that it was "hard to get information about the products"

because "the meetings were always about recruiting."

38. Like many pyramid schemes, under USANA's compensation structure, rewards

were provided for recruiting new Associates and were not always tied to sales of products to

consumers who were not part of the chain. USANA Associates were rewarded for their

17


recruiting efforts with frequent promotional events, such as trips to Hawaii and Europe, cash

prizes, new cars and theater tickets. CW-1 recalls that there was always a threshold number of

new Associates (often 25) that an individual had to recruit in order to qualify as a contest

participant. According to CW-1, these promotional contests were geared much more towards

signing up new Associates than they were towards achieving a threshold level of product sales.

CW-2 also recalls that Associates were entitled to receive trips, cash rewards and other prizes for

successfully recruiting a threshold number of new Associates in a given timeframe.

39. USANA's contract with its Associates facially provided that, in order to qualify

for the receipt of commissions, Associates must sell 70% of their product orders to consumers or

end users and "develop or sell" to at least five retail or Preferred Customers every four weeks.

However, USANA conveniently employed no effective method of monitoring or enforcing these

policies. Moreover, as the term was defined in the contract, Associates themselves qualified as

"end users" -- despite the fact that the vast majority of Associates had no interest in using the

Company's products and were purchasing the Company's products only because they were

required to do so.

40. As with many pyramid schemes, USANA's products were greatly overpriced.

For example, a 28-day supply of premium multivitamins could be purchased at GNC for

approximately $17.00. The price fora monthly supply of USANA's comparable "Essentials"

premium multivitamins, by contrast, was $40.00. According to CW-8, Associates could. "rarely"

make sales because the products were "not competitively priced" and were "so expensive."

Thus, according to CW-8, recruiting was the only way to make money at USANA. CW-6 also

recalls that the products were "much too expensive" and that there were "better and cheaper"

18


products available to consumers. CW-3, who worked in a USANA call center, recalls hearing on

a daily basis from Associates (who were canceling the memberships) that consumers were

simply not interested in purchasing the products because they were so overpriced. CW-1 refers

to the pricing of USANA's products as "a joke."

41. In light of the fact that there was very little real retail demand for the Company's

significantly over-priced products, USANA's Associate failure and attrition rates were extremely

high -- indeed most Associates failed within the first few months of joining the Company. The

Fraud Discovery Institute investigation reveals that more than 74% of the Company's Associates

were failing within the first year of joining the Company and more than 87% of the Company's

Associates were losing money. Only a very small number of people at the very top of the

pyramid were profitable. The Fraud Discovery Institute investigation, which included obtaining

(from a USANA Associate) a chart summarizing the Commissions paid to Associates in North

America in 2006, further revealed that (i) the top 2.6% of Associates in North America received

72.2% of the total commissions paid to Associates in North America; and (ii) approximately

66% of Associates in North America (more than 94,000 USANA Associates) received no

commissions whatsoever. CW-3, who worked in a USANA call center, similarly recalls that

only "a handful of people" at the Company built downlines and were able to make money, but it

was "very, very few people."

42. USANA's senior management was aware of, and constantly monitored, the

Company's Associate attrition rate. CW-4, an individual who worked as a Data Warehouse

Specialist in USANA's Salt Lake City facilities, recalls that monthly reports that included the

details regarding the Company's Associate attrition rate were regularly emailed to senior

19


management, including defendants Fuller and David Wentz. Similarly, CW-5, USANA's

Manager of Financial Analysis for three years (2000 through 2003), recalls discussing Associate

attrition reports with Fuller and other senior officers at regularly-scheduled, weekly meetings.

43. Throughout the Class Period, the Company's website, "www.usana.com " stated

that the "average income for North American Associates in 2005 was $802.62." That number

was materially inflated, because defendants excluded from the calculation the thousands of

unsuccessful Associates who became inactive before the end of the year. Had defendants

included in their calculation all Associates who were active at any point during the year, the

average income would be a small fraction of that which was reported.

44. The Company used very aggressive, high-pressure recruiting techniques to attract

new Associates. For example, CW-8 recalls being recruited at a "house seminar" (a recruiting

meeting held at a residential home), by some of the senior-most USANA Associates in the

Company's distribution chain. According to CW-8, the meeting was a high-pressure sales pitch,

where the Associates arrived in a Lamborghini, flaunted expensive jewelry and made promises

that CW-8 would "make insane amounts of cash." There was little or no discussion of the

Company's products. Like CW-8, the vast majority of Associates joined USANA because they

were promised financial freedom, not because they were interested in using the Company's

products. The Company's extremely high attrition rate is indicative of the fact that Associates

joined the Company to make money, not to use the Company's products. As soon as it became

clear to Associates that being a USANA Associate was a money-losing proposition, they severed

their relationship with the Company.

20


45. Associates at USANA were required to make large up-front investments for the

right to participate in the Company's scheme. CW-8 recalls paying an initial sign-up fee of

$1,200. CW-6 recalls that the sign up fee was $1,20041,400, but that the "up-line" Associate

making the pitch absorbed a portion of the fee in order to induce CW-6 to join the distribution

chain.

46. In order to qualify to receive commissions, USANA Associates were required to

make minimum monthly purchases of the Company's products, regardless of whether the

Associates were, in-fact, selling those products to end users outside of the distribution chain.

According to CW-6, the minimum quantity an Associate was required to purchase was

contingent upon the number of USANA business centers that Associate maintained. If the

Associate maintained one USANA business center, he or she needed to earn at least 100

"business value points" per month; by ordering a minimum of $100 of USANA products. If the

Associate maintained three USANA business centers, he or she had to earn at least 250 "business

value points" per month, by purchasing a minimum of $250 of USANA products. Most

Associates signed up for a program called "autoship," whereby a certain quantity of products

were automatically shipped to, and billed to, the Associate each month. CW-8 satisfied the

requirement of earning at least 100 "business value points" each month by purchasing $120 in

USANA products monthly, using autoship.

47. USANA's former employees and Associates conclude that the Company operated

as an unlawful pyramid scheme. ' CW-1, who worked in USANA's accounting department,

resigned from the Company in February 2007 because it was "painfully obvious" that the

Company was an illegal pyramid scheme. CW-1, who processed all of USANA's outgoing

21


checks, estimated that 90% of the Company's sales were between distributors, and not to end

users. CW-1 regularly reviewed the Company's payroll checks and estimates that the Company

was overstating the "average income" per Associate by approximately 35%. CW-1 recalls being

emphatically instructed by superiors at the Company to "keep quiet" about the checks processed.

48. In June 2007, a class action lawsuit was commenced on behalf of former and

present USANA Associates in the State of California against the Company and several of its

senior officers. The complaint alleges, among other things, that: (i) the Company's multi-level

marketing model operated as a pyramid scheme; (ii) the Company's business model was

unsustainable because it required the constant recruitment of new Associates due to a high level

of attrition within the Company's sales force; (iii) the majority of the Company's Associates did

not actually sell products to consumers, but rather sold to other Associates; (iv) more than 74%

of the Company's Associates were failing within the first year of joining the Company; (v) more

than 87% of the Company's Associates were losing money instead of receiving compensation for

their sales efforts; (vi) the Company lacked adequate internal and financial controls; (vii) the

Company's statements about its future business prospects and projections were lacking in a

reasonable basis at the time they were made; (viii) the Company's representation of a 75%

reduction in "middleman" costs because of its direct marketing system was false or misleading,

as each tier of distribution received approximately 8% in commissions, resulting in prices which

were 50% - 400% above standard retail prices; (ix) the qualifications of members of the

Company's Advisory Board were misrepresented and such members were biased and/or had

conflicts of interest which precluded them from providing independent advice; and (x) the

22


founder of the Company had renounced his U.S. Citizenship and moved substantial assets to the

Caribbean tax havens of St. Kitts and Nevis, the Isle of Mann, and Liechtenstein.

The Long-Term Sustainability OfUSANA's Sales Growth Was Highly Questionable

49. Regardless of whether USANA's business constituted an unlawful pyramid

scheme, the Company's ability to sustain its pattern of growth was highly questionable.

50. As alleged herein, the bulk of USANA sales revenues was derived from sales to

Associates; retail sales to actual end users constituted only a small portion of sales revenues. In

light of the Company's dangerously high Associate attrition rate, sales growth was entirely

dependent upon the ability to continuously recruit massive numbers of new Associates each

month. By the start of the Class Period, that task had become increasingly more difficult for a

number of reasons.

51. First, regulators in the United States and abroad were taking steps to make it more

difficult to operate and grow multi-level marketing businesses, by attracting new recruits. For

example, on April 5, 2006, shortly before the start of the Class Period, the Federal Trade

Commission proposed a law which would require multi-level marketing companies to make

extensive disclosures to new recruits and mandating a seven-day waiting period before a

prospective recruit may join. Under the new law, companies would be required to furnish new

recruits with an extensive "disclosure statement" that includes a plethora of information,

including: (i) an outline of recent legal action involving the company; (ii) the number of direct

sellers who cancel within two years; and (iii) the total funds that the recruit will have to pay to

participate in the multi-level marketing program, including inventory purchases. In addition, any

23


earnings claims made by a multi-level marketing company would have to be accompanied by

detailed substantiation.

52. USANA and others lobbied heavily against the proposed law. On June 30, 2006,

less than three weeks before the start of the Class Period, defendant David Wentz sent a letter to

the Federal Trade Commission which stated, among other things:

"We believe the Rule as presently drafted could hinder or evenruin USANA's business . . .will make it very difficult, if notimpossible, for USANA and our independent distributors tocontinue growing our respective businesses." [Emphasis added.]

53. In a lengthy submission to the Federal Trade Commission on July 17, 2006, the

Direct Selling Association (the "DSA") also expressed significant concerns regarding the

proposed law. The DSA is a national trade association of direct sales companies; throughout the

Class Period, defendant David Wentz was a member of DSA's board of directors. DSA's July

17, 2006 submission regarding the proposed law stated, among other things, that:

DSA cannot overstate the harm to legitimate direct sellers thatwould result from the proposed rule. The rule presents twopotential costs to legitimate direct sellers — the expenses associatedwith compliance and the impact of decreased business activities.With respect to ' compliance, the FTC has dramaticallyunderestimated the time, effort, and expense necessary to collectinformation and provide disclosures for the array of issuesaddressed in the proposed rule. One company alone estimates thatit would be faced with the responsibility to print and distributesome 15 million pieces of paper over a three year period as a resultof the proposal. The FTC has also failed to acknowledge thesignificant harm to legitimate direct sellers, i.e., the loss ofbusiness that would occur if they were subjected to therequirements of the proposed Rule. Several of the mostproblematic requirements are addressed below.

24


The waiting period requirement in the proposed Rule is impracticaland will fundamentally and adversely alter the way in whichdirect selling operates. The proposed rule requires that individualswait at least seven days after they first express interest before theycan sign up as a direct seller. Much legitimate direct sellingrecruiting takes place in personal, social meetings, often in acustomer's home and often in a group. Interested recruits areordinarily signed up on the spot. Imposing a waiting period wouldsignificantly increase the amount of time direct salespeople, mostof whom work part time, would have to devote to recruitingactivities, would divorce the transaction from the social interactionto which it relates, and would delay the earning opportunity for theprospective direct salesperson. Moreover, because one of thehallmarks of the direct selling business model is its ease of entry,this change would certainly result in the loss of interest by manyrecruits. Indeed, a recent survey of the general public indicatedthat the level of interest in direct selling by a prospective directseller would drop at least 33 percent if a waiting period wereinstituted, and among those expressing the greatest likelihood ofentering direct selling, the interest level would drop 57 percent.[Emphasis added.]

54. Despite the aggressive lobbying efforts, on July 1, 2007, the Federal Trade

Commission promulgated the rule as Business Opportunity Rule, 16 C.F.R. § 437.1. Although

the waiting period requirement was not included as part of the final rule, the rule does require

direct sellers to make extensive disclosures to prospective recruits, including, among many

others: attrition and retention rates; required entry fees to participate in the multi-level marketing

business; required recurring purchases of inventory; the company's business experience; and the

history of any criminal or civil liability involving the company.

55. Second, by July of 2006, it was becoming clear that the market for new Associate

recruits was reaching saturation. USANA's competitors in the multi-level marketing of

nutritional and personal care products were making gains into the market for recruits. For

example, two of USANA's larger competitors, Herbalife Ltd. ("Herbalife") and Nu Skin

25


Enterprises, Inc. ("Nu Skin"), were both growing at such rates that they were engulfing the

market for prospective recruits. Since Herbalife's initial public offering in June of 2004,

Herbalife had absorbed potential recruits at a very high rate. Herbalife certified its "Supervisors"

in February of each year. From 2005 to 2006, the number of "Supervisors" worldwide at

Herbalife grew from 201,925 to 243,572, an increase of 20.6%. Similarly, Nu Skin experienced

continuing growth in the number of "distributors" for its nutritional supplements and personal

care products. By the end of the second quarter of 2006, Nu Skin had added 8,000 North

American "distributors" since the beginning of that year. CW-2, a distributor and customer

service representative with USANA from April 2006 through May 2007, recalls that many of the

areas in which USANA operated were saturated with both products and distributors.

56. Finally, the structure of USANA's compensation hierarchy was such that the later

an Associate joined the distribution chain, the less likely that individual would be to generate

sufficient revenues to survive. As alleged above, the top 3% of USANA's Associates were

receiving 70% of all Company-paid commissions. Thus, the "business opportunity" enjoyed by

the Associates who joined the Company early on simply did not exist for prospective recruits

who were being approached by the start of the Class Period.

Defendants' Materially False AndMisleadine Statements Darin g The Class Period

57. Defendants made a number of materially false and misleading statements and

omissions throughout the Class Period in order to conceal, among other things: (i) the true nature

of the Company's business; (ii) the Company's exceedingly high attrition rate; (iii) that the sales

"growth" reported by defendants was not the result of "enthusiasm" or an increase in demand for

the Company's products by end users, but rather was the result of an increase in the number of

26


distributors making required purchases of USANA products as a prerequisite to establishing their

own down-line distribution chain (i.e., an expansion in the pyramid); (iv) that the long-term

sustainability of the Company's business model was in doubt; and (v) that the characteristics of

USANA's business model and practices were much like that of unlawful pyramid schemes (i.e.,

up-front entry fees, little or no emphasis on retail sales of the products, and high-pressure

recruiting tactics).

Defendants Report Second Quarter 2006 Financial Results,Falsely Reassure Investors Regarding USANA's AssociateRetention Rate And Tout `Consistent Growth of ActiveAssociates" and `Continued Interest" in Usana Products

58, The Class Period begins on July 18, 2006. On that day, USANA issued a press

release entitled "USANA Reports 16th Consecutive Quarter of Record Net Sales; Q2 Net Sales

Raan,kpd Pol Q T M1inn • PPC nf ltO SS MO SQ Pv.-Il1A1n (T Fniiity-Raea^ ( 'mm^r^neatinn Pvnancal 99^.... ..... W .. —, — v — W_ \4..,.... .............•b ,..q... ) ,,..^.........j,..,^...... ,...y...^. ^,

stating, in relevant part:

Earnings from operations in the second quarter of 2006 grew 4.1 %to $15.4 million, or 16.4% of net sales, compared with $14.7million, or 18.0% of net sales, in the second quarter of the prioryear. Earnings from operations in the second quarter of 2006 werereduced by $1.2 million due to the required expensing of equity-based compensation. The company achieved net earnings in thesecond quarter of 2006 of $10.3 million, an increase of 8.4%,compared with net earnings of $9.5 million in the second quarter ofthe prior year. Excluding the expense of equity-basedcompensation, this increase in net earnings would have been17.0%. Earnings per share in the second quarter of 2006 improvedto $0.55 per share, an increase of 14.6%, compared with $0.48 pershare in the second quarter of the prior year. Excluding the expenseof equity-based compensation, this increase in earnings per sharewould have been 22.9%.

27


"We are pleased with our strong sales results which continue to bedriven by our consistent growth of Active Associates," said DaveWentz, president of USANA. "In North America, second quartersales grew by 19%, compared with last year. We believe thisgrowth in our most mature region reflects the continued interest inour products and the business opportunity that USANA offers itsAssociates. The engagement and effort of our Associate leaders inNorth America has been one of the driving forces behind thissuccess. Additionally, interest in our low-glycemic, macrooptimizer products remained strong and was a growth driver in thesecond quarter, as this product group reached 14.1% of productsales." [Emphasis added.]

59. In response to these positive statements, the price of USANA common stock

climbed over 11%, from $35.91 on July 18, 2006 to $39.97 on July 19, 2006.

60. On July 19, 2006, defendants held a conference call with securities analysts to

review the Company's second quarter 2006 financial results. During the call, defendants

reiterated the reported financial results and responded to questions, including a specific question

regarding the Company's Associate retention rate. Defendant David Wentz falsely reassured

investors as follows:

Mimi Sokolowski: Thank you. Dave, first question is for you. Idon't think you've ever just quantified any sort of a retention ratebut with the new changes, the new answers to the compensationhave you seen that retention rate change at all?

David Wentz: Retention rates for the 14 years have been here justpretty much same -- human nature people are what they are.

Mimi Sokolowski: Okay.

David Wentz: A certain percent will build this business and acertain percent will refuse to talk to a single soul about it. So, wedon't see — I mean . we see a little fluctuations, but it is alwaysdown, cause that's be about the same thing. Growth tends to help alittle bit as more people are having success, but it all evens out inthe end.

28


61. Also during the July 19, 2006 conference call, defendant David Wentz responded

to a specific question regarding a proposed FTC rule that would require, among other things, a 7-

day cooling off period following initial contact with a prospective distributor:

Yes, there's definitely been a proposal put out there SEC [sic]proposal on how this opportunity is to be viewed and we arelobbing heavily with the entire direct selling association to makesure that we get to a situation that we're comfortable with. We'repretty confident that there won't be anything that disruptsbusiness very much, probably not even at all. And even if does,we feel that with our integrity, with the things we've done in thepast, we will — even if we have to do things, we will still standhead-shoulders above the others. So, we are not concerned aboutit. [Emphasis added.]

62. On August 8, 2006, USANA filed its Quarterly Report with the SEC on Form 10-

Q for the period ended July 1, 2006, reiterating the financial results detailed in the July 18, 2006

press release and representing that they fairly presented the Company's financial position. The

Form 10-Q also stated, in relevant part:

USANA Health Sciences, Inc. develops and manufactures high-quality nutritional, weight management, and personal careproducts. We market our products on the basis of high levels ofbioavailability, safety, and quality. We distribute our productsthrough a network marketing system using independentdistributors whom we refer to as "Associates." As of July 1, 2006,we had 142,000 active Associates worldwide. We also sellproducts directly to "Preferred Customers" who purchase productsfor personal use and are not permitted to resell or distribute theproducts. As of July 1, 2006, we had 75,000 active PreferredCustomers worldwide. The majority of sales in the Direct Sellingsegment come from Associates. For the six months ended July 1,2006, sales to Associates accounted for approximately 86% of netsales for the Direct Selling segment. For purposes of this report,we only count as active customers those Associates and PreferredCustomers who have purchased product from USANA at any timeduring the most recent three-month period.

29


The increase in net sales from the Direct Selling segment in NorthAmerica was 19.0% compared with the second quarter of 2005.On a constant currency basis, sales in this region improved 15.8%over the same period of the prior year. The growth in this regionwas largely driven by strong sales in the United States, theCompany's largest and most mature market, and Canada. Mexicoalso contributed to the increase in this region by growing 11.8%over the same period of the prior year. The overall sales increasein this region during the second quarter was driven by a 16.9%increase in the number of active Associates.

63. In the "risk factors" section, the Form 10-Q for the period ended July 1, 2006

stated, in relevant part:

We attempt to identify, manage and mitigate the risks anduncertainties associated with our business to the extent practical.However, some level of risk and uncertainty will always bepresent. Item lA of our Annual Report on Form 10-K for thefiscal year ended December 31, 2005 describes some of the risksand uncertainties associated with our business. These risks anduncertainties have the potential to materially affect our business,financial condition, results of operations, cash flows, projectedresults and future prospects. We have revised the following riskfactor which was previously disclosed in Item IA of our AnnualReport on Form 10-K for the fiscal year ended December 31, 2005:

Network marketing is subject to intense government scrutinyand regulation, which adds to the expense of doing businessand the possibility that changes in the law might adverselyaffect our ability to sell some of our products in certainmarkets. Network marketing systems such as ours are frequentlysubject to laws and regulations, including laws and regulationsdirected at ensuring that product sales are made to consumers ofthe products and that compensation, recognition, andadvancement within the marketing organization are based on thesale of products rather than investment in the sponsoringcompany. We are subject to the risk that, in one or more of ourpresent or future markets, our marketing system could be found notto comply with these laws and regulations or may be prohibited.Failure to comply with these laws and regulations or such aprohibition could have a material adverse effect on our business,financial condition, and results of operations. Further we maysimply be prohibited from distributing products through a network-

30

Case 2:07-cv-00177-DAK Document 41-2 Filed 12/03/2007 Page 1 of 37

marketing channel in some foreign countries, or be forced to alterour Compensation Plan.

We are also subject to the risk that new laws or regulations mightbe implemented or that current laws or regulations might change,which could require us to change or modify the way we conductbusiness in certain markets. The United States Federal TradeCommission released a proposed New Business Opportunity Ruleon April 5, 2006. The proposed rule would require pre-saledisclosures for all business opportunities, which might includenetwork marketing compensation plans. The New BusinessOpportunity Rule is currently only a proposed rule. Ifimplemented at all, the rule ultimately may not be implemented ina form that applies to network marketing compensation plans, ormay change significantly before it is implemented. If the proposedrule were adopted as currently proposed, it might require USANAto change some of its current practices regarding pre-saledisclosures. [Emphasis added.]

64. The Form 10-Q for the period ended July 1, 2006 also contained a Sarbanes-

Oxley certification, signed by defendants Myron Wentz and Gilbert Fuller, that stated:

I, [Myron W. Wentz/Gilbert A. Fuller], certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of USANA HealthSciences, Inc. (the "Registrant");

2. Based on my knowledge, this Quarterly Report does not contain anyuntrue statement of a material fact or omit to state a material factnecessary to make the statements made, in light of the circumstancesunder which such statements were made, not misleading with respect tothe period covered by this Quarterly Report;

3. Based on my knowledge, the financial statements, and other financialinformation included in this Quarterly Report, fairly present in all materialrespects the financial condition, results of operations and cash flows of theRegistrant as of, and for, the periods presented in this Quarterly Report;

4. The Registrant's other certifying officer and I are responsible forestablishing and maintaining disclosure controls and procedures (asdefined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internalcontrol over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:

31


a) designed such disclosure controls and procedures, or caused suchdisclosure controls and procedures to be designed under oursupervision, to ensure that material information relating to theRegistrant, including its consolidated subsidiaries, is made knownto us by others within those entities, particularly during the periodin which this Quarterly Report is being prepared;

b) designed such internal control over financial reporting, or causedsuch internal control over financial reporting to be designed underour supervision, to provide reasonable assurance regarding thereliability of financial reporting and the preparation of financialstatements for external purposes in accordance with generallyaccepted accounting principles;

c) evaluated the effectiveness of the Registrant's disclosure controlsand procedures and presented in this Quarterly Report ourconclusions about the effectiveness of the disclosure controls andprocedures, as of the end of the period covered by this QuarterlyReport based on such evaluation; and

d) disclosed in this Quarterly Report any change in the Registrant'sinternal control over financial reporting that occurred during theRegistrant's most recent fiscal quarter (the registrant's fourth fiscalquarter in the case of an annual report) that has materially affected,or is reasonably likely to materially affect, the Registrant's internalcontrol over financial reporting; and

5. The Registrant's other certifying officer and I have disclosed, based on ourmost recent evaluation of internal control over financial reporting, to theregistrant's auditors and the audit committee of the Registrant's board ofdirectors (or persons performing the equivalent functions):

a) all significant deficiencies and material weaknesses in the designor operation of internal control over financial reporting which arereasonably likely to adversely affect the Registrant's ability torecord, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management orother employees who have a significant role in the Registrant'sinternal control over financial reporting.

65. The statements set forth at ¶¶ 58-64 above were knowingly or recklessly

materially false and misleading when made for the reasons stated at IN 35-36 and because they

misrepresented and/or omitted those adverse facts which then existed and the disclosure of which

32


was necessary to make the statements made not materially misleading. Among other things, it

was materially false and misleading for defendants to:

(a) represent that the revenues and sales growth reported were theresult of a "continued interest in [the Company's] products," when there was verylittle retail demand for the Company's products and the vast majority of theCompany's sales were made to Associates who were not end-users of theproducts;

(b) represent that the Company's sales growth was the result of"consistent growth of Active Associates" and the "business opportunity thatUSANA offered its Associates" without disclosing the significant undisclosedrisk related the shareholders' investment in the Company in light of the fact thatmany of the characteristics of USANA's business model, growth strategy,compensation structure and business practices closely resembled that of anunlawful, unsustainable pyramid scheme;

(c) falsely reassure investors that the Company's Associate retentionrate was manageable, when USANA's senior management discussed Associateattrition on a weekly basis and more than 74% of the Company's Associates werefailing within the first year of joining the Company;

(d) limit the count of "active customers" to those who had purchasedproducts with the preceding three months, without also disclosing that doing sohad the impact of materially distorting the Company's reported "average incomeper Associate" and other reported financial results in light of the Company's highattrition and frequent turnover of Associates;

(e) represent that USANA was subject to the generic, regulatory risksassociated with operating a network marketing business, when, because USANAfunctioned much like a pyramid scheme, the Company was subjected to theheightened risk that it would be subjected to significant regulatory scrutiny andcivil litigation by defrauded current and former Associates, resulting in additionalcosts and expenses, distraction of senior management and potential regulatoryaction with cataclysmic consequences for investors;

(fl state, in the Company's generic discussion of risk factors, that"laws and regulations are designed to ensure that product sales are made to endusers of the products and that compensation, recognition and advancement withinthe company are based on the sale of products," without also disclosing toinvestors that most of USANA's product sales were not made to end users andthat USANA often rewarded Associates with vacations, cash and cars forrecruiting new people into the scheme, not for selling the Company's products.

33


(g) represent that the Company was "not concerned about" theproposed FTC rule because it "won't be anything that disrupts business verymuch, probably not even at all" and simply "might require USANA to changesome of its current practices," when: (1) as defendant David Wentz stated in aletter to the FTC just a few weeks earlier, the proposed FTC rule could "hinder oreven ruin USANA's business and make it "very difficult if not impossible" forUSANA and its Associates to continue growing the business; and (2) as the DSAstated in its submission to the FTC, the proposed rule would "fundamentally andadversely alter" the way in which direct selling businesses operate and result inthe "loss of interest" by many recruits;

(h) not disclose that the Company's ability to recruit the tens ofthousands of new Associates required to sustain the Company's revenues hadbecome more difficult, in light of. increased regulatory scrutiny; marketsaturation; and the diminishing attractiveness of the business opportunity offeredby USANA to prospective Associates.

66. To the extent that defendants' statements in the Company's Form 10-Q for the

period ended July 1, 2006 are deemed to be forward-looking, they are not protected by the safe

harbor provision of the Private Securities Litigation Reform Act (the "PSLRA"), because:

(a) such statements were material to investors;

(b) defendants had actual knowledge that such statements were false;and

(c) such statements were not accompanied by "meaningful cautionarylanguage."

67. In addition, defendants' oral statements on the July 19, 2006 conference call are

not protected by the safe harbor provision of the PSLRA because:


(b) such statements were not identified as forward-looking;

(c) such statements were not accompanied by a caution that actualresults could differ materially from those projected;

(d) defendants failed to identify a readily available written documentcontaining information about factors which could cause actual results to differmaterially from those projected; and

34


(e) defendants had actual knowledge that such statements were false.

Defendants Report Third Quarter 2006 FinancialResults, Trumpet An "Increase In The Number OfActive Associates" And Misrepresent The AverageIncome Per Associate and the Risk of Market Saturation

68. On October 17, 2006, USANA issued a press release entitled "USANA Reports

Strong 15.8% Year-Over-Year Third Quarter Sales Growth," stating, in relevant part:

Earnings from operations in the third quarter of 2006 grew by7.7% to $15.7 million, or 16.5% of net sales, compared with $14.6million, or 17.8% of net sales, in the third quarter of the prior year.Earnings from operations in the third quarter of 2006 were reducedby $1.3 million due to the required expensing of equity-basedcompensation. Net earnings in the third quarter of 2006 grew by1.8% to $10.2 million, compared with net earnings of $10.0million in the third quarter of the prior year. Excluding the expenseof equity-based compensation, this increase in net earnings wouldhave been 10.5%. Earnings per share in the third quarter of 2006increased by 7.8% to $0.55 per share, compared with $0.51 pershare in the third quarter of the prior year. Excluding the expenseof equity-based compensation, earnings per share would have been$0.60, an increase of 17.6%.

"During the third quarter, we again achieved growth in sales,earnings, and Associates," said Dave Wentz, President ofUSANA. "We were pleased with the double-digit sales growththat we achieved in all of our markets, excluding Japan. We havemaintained our commitment to supporting our Associates withexcellent customer service, innovative business management tools,and science-based products, and we believe that this strategy willpromote our growth in the future." [Emphasis added.]

Commenting on USANA's future expectations, Gilbert A. Fuller,the Company's Executive Vice President and Chief FinancialOfficer, said, "We expect net sales in the fourth quarter of 2006 tobe in the range of $98 million to $100 million, compared with$86.9 million in the fourth quarter of last year, a growth rate of13% to 15%. During the fourth quarter of 2006, we will be heavilypromoting our featured coverage in Success from Home magazine

35


with related contests and incentives. These promotions andincentives were introduced at our convention in mid-Septemberand so far the feedback from our Associates has been very positive.[Emphasis added..]

69. The October 17, 2006 press release also included aggressive guidance with

respect to the Company's growth prospects for 2007:

Looking ahead to 2007, we expect to grow both net sales andearnings per share between 15% and 17%. This earnings pershare estimate includes operations in Malaysia, the expense ofequity-based compensation, and assumes a tax rate for 2007 of37%, which is meaningfully higher than the 35% tax rate that wehave incurred during most of 2006, [Emphasis added.]

70. On October 18, 2006, defendants held a conference call with securities analysts to

review the Company's third quarter 2006 financial results. During the call, defendants reiterated

the reported financial results and responded to questions, including a question that was

specifically posed to inquire about the possibility of market saturation and a decrease in the

Company's reported "average sales per U.S. Associate." Defendant Fuller falsely reassured

investors as follows:

Taylor Burke: Hi, good morning. I wanted to go back to the USmarket for a second. When I look at the average sales per USassociates, it was down 5% year-over-year, and with that being40% plus to your sales, I'm just wondering if you can comment onthe dynamics that's causing that?

Gilbert Fuller: Yes, let's see, we were down from a year ago byabout 2%, is that the number you're looking at. My view, maybeothers in the room have different view in that, but we had such astrong quarter, second quarter in the US, there were sales up 20%,that I think it.'s going down a bit, it was just kind of a normalconvention quarter where we had bit softer overall growth in theUS, kind of a normal wiggle as the way I would look at it, I don'tsee anything in there that I have — that gave me any angst.

36


Taylor Burke: Okay. I was looking at the sales per AverageAssociates, year-over-year I calculate it down 5%, that was thesecond quarter in a row of negative growth, and that's why I waswondering, it looked like more than just one quarter phenomenon,but maybe a trend I didn't know — feel like the US's exaggeration[sic] or -- ?

Gilbert Fuller: Well, we certainly don't feel like the US issaturated. Certainly, I'm showing year-over-year decline of 2%,1.9% actually, we may have some math differences, and if youwould like we can have a discussion of that, about whether or notwe've got math issues here. We are going to look and see if wehave got something else that we can give you on that. But what mypoint on the — we have had very strong growth in the US, and oftenwhen you have alot of growth, and therefore a lot of newdistributors, sometimes that averaged the amount of sales perdistributor moves around some, and that could go number ofdistributors sometimes you get a decline in the math — sales mix isalso is a factor in it as well.

Taylor Burke: Okay but It's nothing that you guys are overlyconcerned about?

Gilbert Fuller: That is correct. [Emphasis added.]

71. Despite a reported $15.7 million in earnings for the quarter (an increase of 7.7%),

the Company's reported earning per share of $.055 was slightly below analysts' expectations.

Defendants' false assurances regarding, among other things, market saturation and a drop in the

Company's average sales per Associate, however, were able to cushion the impact of the

earnings miss. In response to the Company's failure to meet earnings estimates, the price of

USANA common stock declined only 7.6%, to close at $45.09 on October 18, 2006.

72. On November 7, 2006, USANA filed its Quarterly Report with the SEC on Form

10-Q for the period ended September 30, 2006, which reiterated the financial results reported in

the October 17, 2006 press release. The Form 10-Q for the period ended September 30, 2006

also included (i) a generic discussion of "risk factors" that was substantially identical to that

37


which was contained in the Form 10-Q for the period ended July 1, 2006, as set forth in ¶ 63

above; and (ii) a Sarbanes-Oxley certification, signed by defendants Myron Wentz and Gilbert

Fuller, that was substantially identical to the certification that accompanied the Form 10-Q for

the period ended July 1, 2006, as set forth in ¶ 64 above.

73. The statements set forth at IN 68-72 above were knowingly or recklessly

materially false and misleading when made for the reasons stated at ¶¶ 35-36, and 65 above and

because they misrepresented and/or omitted those adverse facts which then existed and the

disclosure of which was necessary to make the statements made not materially misleading. It

was also materially false and misleading for defendants to:

(a) falsely reassure investors regarding market saturation when themarket for prospective Associates was becoming increasingly more saturated; and

(b) falsely reassure investors regarding the "average sales per U.S.Associate," when the Company's reported average sales per Associate wasmaterially overstated, as a result of the Company's exceedingly high attrition rateand the Company's failure to include all Associates in its calculations;

74. In addition, defendants' statements in the October 17, 2006 press release and

October 18, 2006 conference call with analysts regarding expected growth in sale and earnings

for 2007 ("we expect to grow both net sales and earnings per share between 15% and 17%"),

were materially false and misleading when made, and were made without a reasonable basis,

because defendants knew or recklessly disregarded that the Company's ability to recruit the tens

of thousands of new Associates required to sustain such growth would be nearly impossible, in

light of: increased regulatory scrutiny; market saturation; and the diminishing attractiveness of

the business opportunity offered by USANA to prospective Associates.

38


75. To the extent that defendants' statements in the Company's October 17, 2006

press release and Form 10-Q for the period ended September 30, 2006 are deemed to be forward-

looking, they are not protected by the safe harbor provision of the PSLRA, because:


(b) defendants had actual knowledge that such statements were false;and

(c) such statements were not accompanied by "meaningful cautionarylanguage."

76. In addition, defendants' oral statements on the October 18, 2006 conference call

are not protected by the safe harbor provision of the PSLRA because:


(b) such statements were not identified as forward-looking;

(c) such statements were not accompanied by a caution that actualresults could differ materially from those projected;

(d) defendants failed to identify a readily available written documentcontaining information about factors which could cause actual results to differmaterially from those projected; and

(e) defendants had actual knowledge that such statements were false.

Defendants Report "Strong" Fourth Quarter 2006 FinancialResults and Attribute Such Results To "The Market'sContinued Enthusiasm For [Usana'sl Science-Based Products"

77. On January 10, 2007, USANA issued a press release entitled "USANA Provides

Preliminary Fourth Quarter 2006 Results Record Fourth Quarter Net Sales and EPS to Exceed

Guidance," stating, in relevant part:

The company currently expects net sales for this period to beapproximately $101 million, before the reclassification asdescribed below. This exceeds management's prior guidance of$98 million to $100 million. Net sales after the reclassification are

39


expected to be approximately $99.5 million, which represents the18th consecutive quarter of record net sales. Earnings per share forthe fourth quarter are expected to exceed management's previouslyannounced guidance of $0.56 to $0.58. The company nowanticipates that earnings per share will be in the range of $0.58 to$0.60 and are not affected by the reclassification as describedbelow.

"We are pleased that we have finished out 2006 with such strongresults, which reflect the hard work and dedication of ourAssociates as well as the market's continued enthusiasm for ourscience-based products," said Dave Wentz, president of USANA.[Emphasis added.]


climbed 5.4%, from $49.60 on January 9, 2007 to close at $52.30 on January 10, 2007.

79. On February 6, 2007, USANA issued a press release entitled "USANA

Announces Record Fourth Quarter 2006 Financial Results," stating in relevant part:

Earnings from operations in the fourth quarter of 2006 grew by8.3% to $16.7 million, or 16.8% of net sales, compared with $15.4million, or 18.0% of net sales, in the fourth quarter of the prioryear. Earnings from operations in the fourth quarter of 2006 werereduced by $1.3 million, due to the required expensing of equity-based compensation. Earnings per share 'in the fourth quarter of2006 increased by 13.0% to $0.61 per share, compared with $0.54per share in the fourth quarter of the prior year. Excluding theexpense of equity-based compensation, earnings per share in thefourth quarter of 2006 would have been $0.65, an increase of20.4%, compared with the fourth quarter of the prior year.Earnings per share in the fourth quarter of 2006 were impacted byan expected unfavorable tax ruling, resulting in a tax rate that washigher than anticipated, and by a favorable foreign exchange gainon capital that was returned to the Company from one of its foreignsubsidiaries.

"The fourth quarter marked the 18th consecutive quarter of recordsales, driven by strong sales growth of 16.6% in North America

40


and 19.9% in the Asia Pacific region," said Dave Wentz, Presidentof USANA. "Our results demonstrate our ability to grow in bothour mature markets and in our newer markets.

"The promotions that we offered during the fourth quarter,including those relating to Success from Home Magazine, werekey elements of our strong performance in the quarter. We areoptimistic that, as we continue to offer contests and promotions,we will consistently generate new Associate prospects throughout2007." [Emphasis added.]

80. The February 6, 2007 press release also included aggressive guidance with respect

to the Company's growth prospects for 2007:

As to our guidance for the full-year 2007, we continue to expectnet sales to grow by 15% to 17% over 2006. Based on our currentexpectations, however, we are raising our full-year 2007 earningsper share guidance and now believe that earnings per share willgrow by 17% to 20% over 2006. This earnings per share estimateincludes an estimated tax rate of 36.5%, which is higher than our35.3% tax rate for 2006.


climbed 9.7%, from $54.63 on February 6, 2007 to close at $59.92 on February 7, 2007.

82. Just six days later, on February 12, 2007, defendant Myron Wentz sold 85,000

shares of USANA stock at $60.98 per share, for total proceeds of $5,183,300.

83. The statements set forth at IT 77-80 above were knowingly or recklessly

materially false and misleading when made for the reasons stated at ¶¶ 35-56, and 65 above and



was also materially false and misleading for defendants to represent that the Company's reported

results for 2006 "reflect the hard work and dedication of [USANA's] Associates as well as the

41


market's continued enthusiasm for [USANA's] science-based products," when: (i) there was

very little retail demand for the Company's products and the vast majority of the Company's

sales were made to Associates who were not end-users of the products; and (ii) the Company

was experiencing extremely high turnover and attrition amongst its Associates and the vast

majority of the Company's Associates fail and leave the Company within the first few months.

84. In addition, defendants' statements in the February 6, 2007 press release

regarding expected growth in revenues and earnings for 2007 ("we continue to expect net sales

to grow by 15% to 17% over 2006") were materially false and misleading when made, and were

made without a reasonable basis, because defendants knew or recklessly disregarded that the

Company's ability to recruit the tens of thousands of new Associates required to sustain the

Company's revenues had become more difficult, in light of increased regulatory scrutiny;

market saturation; and the diminishing attractiveness of the business opportunity offered by

USANA to prospective Associates.

85. To the extent that defendants' statements in the Company's February 6, 2007

press release are deemed to be forward-looking, they are not protected by the safe harbor

provision of the PSLRA for the reasons stated at ¶ 66 above.

Usana's Annual Report on Form 10-KMisrepresents The Company's Business Modeland Materially Understates the Risk That The CompanyWas Functioning As An Unlawful Pvramid Scheme

86. On March 8, 2007, USANA filed its Annual Report with the SEC on Form 10-K

for the period ended December 30, 2006 (the "2006 Form 10-K!'). The Form 10-K stated, in

relevant part:

42


Network Marketing Regulation. Laws and regulations in eachcountry in which we operate prevent the use of deceptive orfraudulent practices that have sometimes been inappropriatelyassociated with legitimate direct selling and network marketingactivities. These laws include anti-pyramiding, securities, lottery,referral selling, anti-fraud and business opportunity statutes,regulations, and court cases. Illegal schemes, typically referred toas "pyramid," "chain distribution," or "endless chain" schemes,compensate participants primarily or solely for the introduction orenrollment of additional participants into the scheme. Often theseschemes are characterized by large up front entry or sign-up fees,over priced products of low value, little or no emphasis on thesale or use of products, high-pressure recruiting tactics, andclaims of huge and quick financial rewards requiring little or noeffort. Generally these laws are directed at ensuring that productsales ultimately are made to consumers and that advancementwithin sales organizations is based on sales of the enterprise'sproducts, rather than investments in the organizations or other non-retail sales related criteria or activity. Where required by law, weobtain regulatory approval of our network marketing system, or,where approval is not required or available, the favorable opinionof local counsel as to regulatory compliance.

In addition to federal regulation in the United States, each state hasenacted its own "Little FTC Act" to regulate sales and advertising.Occasionally we receive requests to supply information regardingour network marketing plan to regulatory agencies. Although wehave from time to time modified our network marketing system tocomply with interpretations of various regulatory authorities, webelieve that our network marketing program is in compliancewith laws and regulations relating to network marketingactivities in our current markets Nevertheless, we remain subjectto the risk that, in one or more of our present or future markets, themarketing system or the conduct of certain Associates could befound not to be in compliance with applicable laws andregulations. Failure by an Associate or us to comply with theselaws and regulations could have a material adverse effect on ourbusiness in a particular market or in general. Any or all of thesefactors could adversely affect the way we do business and couldaffect our ability to attract potential Associates or enter newmarkets. In the United States, the FTC has been active in itsenforcement efforts against both pyramid schemes and legitimatenetwork marketing organizations with certain legally problematiccomponents, having instituted several enforcement actions

43


resulting in signed settlement agreements and payment of largefines. Although to our knowledge, we have not been the target ofan FTC investigation, there can be no assurance that the FTC willnot investigate us in the future. [Emphasis added.]

87. The 2006 Form 10-K also stated the following concerning the Company's

distribution system:

We distribute products through a network marketing system, whichis a form of person-to-person direct selling through a network ofvertically organized independent distributors who purchaseproducts at wholesale prices from the manufacturer and thenmake retail sales to consumers [Emphasis added.]

Associates cannot simply recruit others for the purpose ofdeveloping a downline and earn income passively, dependingsolely on the efforts of their downline. Each Associate is requiredto purchase a certain amount of product each month ("QualifyingPurchases"), which they must either resell to consumers orpersonally use, in order to qualify to earn commissions or bonusesunder USANA's Compensation Plan. Associates do not earncommissions on these Qualifying Purchases. The purpose of ourCompensation Plan is to reward Associates for actively selling ourproducts and for recruiting and retaining others to sell ourproducts.

88. The 2006 Form 10-K stated the following concerning the sustainability of the

Company's business model:

If the number or productivity of independent Associates doesnot increase, our revenue will not increase. To increaserevenue, we must increase the number and/or the productivity ofour Associates. We can provide no assurances that the number ofAssociates will increase or remain constant, or that theirproductivity will increase. We experienced a 29.5%, 16.7%, and15.0% increase in active Associates during 2004, 2005, and 2006,respectively. The number of active Associates may not increaseand could decline in the future. Associates may terminate theirservices at any time, and, like most direct selling companies, weexperience a high turnover among Associates from year to year.

44


We cannot accurately predict any fluctuation in the number andproductivity of Associates because we primarily rely uponexisting Associates to sponsor and train new Associates and tomotivate new and existing Associates. Operating results could beadversely affected if our existing and new business opportunitiesand products do not generate sufficient economic incentive orinterest to retain existing Associates and to attract newAssociates.

Attract and Retain Associates and Preferred Customers. Werecognize the need to continue to attract and retain Associates.We maintain emphasis on the partnership between the USANAmanagement team and our Associate leaders. Through thispartnership, our Associate leaders continue to host "Health &Freedom" meetings and online presentations, both aimed atpresenting the business opportunity to potential Associates andproviding additional training and resources for existingAssociates. In addition to our Annual International Convention andour Asia Pacific Convention, we hold several regional events inkey growth areas to provide support and training to new Associatesin these areas. We intend to continue growing our business bymaintaining a focus on our two core values, "True Health" and"True Wealth." We plan to accomplish this by increasing thenumber of active Associates and teaching them how to build astrong customer base. By leveraging the current growth we have inour Associate field, we believe we can continue to attractindividuals that are interested in joining a winning team andstarting a home-based business with USANA.

89. The 2006 Form 10-K stated the following concerning the Company's method of

counting "active Associates":

As of December 30, 2006, we had 153,000 active Associates and78,000 active Preferred Customers worldwide. For purposes of thisreport, we only count as active customers those Associates andPreferred Customers who have purchased product from USANA atany time during the most recent three-month period.

90. The 2006 Form 10-K also contained a Sarbanes-Oxley certification, signed by

defendants Myron Wentz and Gilbert Fuller, that was substantially identical to the certifications

45


that accompanied the Form 10-Qs for the periods ended July 1, 2006 and September 30, 2006, as

set forth in ¶ 64 above.

91. In connection with the filing of the 2006 Form 10-K, a letter to shareholders

signed by Dr. Myron Wentz and David Wentz, .and included in the Company's annual report for

2006, contained the following material misrepresentations regarding the sustainability of the

Company's business model:

Our Associates—a cornerstone of our continued success

USANA Associates, our single most valuable asset, are essential toour success. We ended 2006 with 153,000 active Associates, anincrease of 15 percent from 133,000 Associates at the end of2005. The number of Preferred Customers also grew by 11.4percent. In addition to our world-class product lines, we alsoprovide our Associates with the support they need to makegrowing their business as easy as possible. We offer superiorcustomer service and straightforward Web-based sales andmanagement programs, ranging from online product ordering toWebsite hosting. We also regularly create award-winning salestools that are affordable and easy to use. At the 2006 convention,we unveiled PresentationPro, a new software program designed tohelp Associates create polished and up-to-date sales presentations.One of the convention's biggest announcements was our feature inthe November 2006 issue of Success from Home. This nationalnewsstand magazine dedicated the entire issue to USANA'sproducts and home-based business opportunity, and Associateshave had great success using it as a recruiting tool.

The future---our next 15 years

In 2007 we will commemorate our 15th year as a world-classcompany. And while we have many past accomplishments tocelebrate, our future looks even brighter. We will continue toexpand into promising markets and' develop new products.However, we know that it is the fundamentals that make USANAgreat—our focused business strategy, our science-based products,and our world-class Associates. In summary, we want to thank thethousands of USANA Associates and nearly 900 employeesworldwide who are tireless in their commitment to USANA and

46


our long-term vision. With their dedication, we can look forward toour next 15 years of health and prosperity. [Emphasis added.]

92. The statements set forth at IN 86-91 above were knowingly or recklessly

materially false and misleading when made for the reasons stated at IN 35-56, and 65 above and



was also materially false and misleading for defendants to:

(a) include the generic risk disclosure that "like most direct sellingcompanies, we experience a high turnover among Associates from year to year" withoutdisclosing (1) the actual attrition rate; or (2) the fact that USANA's attrition rate wasextremely and alarmingly high;

(b) represent that USANA was subject to the generic, regulatory risksassociated with operating a network marketing business, when, because USANAfunctioned much like a pyramid scheme, the Company was subjected to the heightened-1, 4L.n4 ;4 --IA U- m.b.ie..4e.a 4.. n..t.^i ^.̀ i.n«4 --l-+- ni.«..4:.... -A -.1 1i4i n*- U<

defrauded current and former Associates, resulting in additional costs and expenses,rdistraction of senior management and potential regulatory action with cataclysmicconsequences for investors;

(c) represent the belief that USANA "is in compliance with laws andregulations relating to. network marketing," when many of the characteristics of theCompany's business model, growth strategy, compensation structure and businesspractices closely resembled that of an unlawful pyramid scheme;

(d) state that the Company "cannot accurately predict any fluctuation in thenumber and productivity of Associates," when the Company's senior managementmonitored such statistics on a weekly basis;

(e) describe the Company's Associates as distributors who "purchase productsat wholesale prices from the manufacturer and then make retail sales to consumers,"when the vast majority of the Company's Associates did not make retail sales to endusers of the Company's products;

(fl state that Associates "cannot simply recruit others for the purpose ofdeveloping a downline and earn income passively, depending solely on the efforts of theirdownline" when, as former USANA Associates recall, vacations, cars, and other rewardswere paid to Associates for recruiting new individuals into the USANA distributionchain; and

47


(g) trumpet growth in the number of the Company's Associates without alsodisclosing the exceedingly high attrition and turnover amongst Associates (74% failingwithin the first year) and the fact that the Company's ability to recruit the tens ofthousands of new Associates required to sustain the Company's growth had become moredifficult, in light of increased regulatory scrutiny; market saturation; and the diminishingattractiveness of the business opportunity offered by USANA to prospective Associates.

93. To the extent that defendants' statements in the Company's Form 10-K for the

period ended December 30, 2006 are deemed to be forward-looking, they are not protected by

the safe harbor provision of the PSLRA for the reasons stated at 164 above.

The Truth Begins to Emerge

94. On March 15, 2007, the Fraud Discovery Institute issued a press release

announcing the publication of a massive report detailing the results of an investigation into

USANA's alleged improper business practices. The press release stated, in relevant part:

The Fraud Discovery Institute, under the direction of BarryMinkow, has issued a report on public company, Usana HealthSciences, Inc., alerting authorities to possible fraud and also raisingquestions about the legitimacy of the entire multi-level marketingindustry. The Wall Street Journal reported the story today.

Minkow's 500 page report, addressed to the FBI, SEC and IRS andnow posted on www.frAuddiscovery.net, raises many seriousconcerns about Usana, including the company's alleged untenablebusiness model whereby no less than 85% of current distributorsare losing money and no less than 74% of distributors fail withinthe first year. Yet these distributors account for 86% of thecompany's multi-level marketing revenue:

The report also documents another secret of the Usana business --specifically that only 3% of distributors receive 70% of company-paid commissions, which, in turn, skews the alleged "averageincome figure" for distributors posted on the company's web site.

Minkow also attacked the very heart of the Usana business modelby allegedly debunking the myth that manufacturer direct-to-distributor sales and purchases saves distributors and preferredUsana customers "75%" because- it avoids the traditional methodof retail sales with national, regional and local retail outlets

48


marking up the cost of the item. However, by hiring twoaccredited, independent labs, the Fraud Discovery Institute appearsto have demonstrated that Usana's best selling vitamin productsare hopelessly overpriced and, in one example, were over 400%more expensive than a comparable over the counter health foodstore-bought product. "If this is the case, one would expect thecompany to struggle with reselling these products because of theirhuge markup. The evidence appears to show just that, as only 14%of company revenues stem from retail sales."

According to Minkow: "From 2003 to 2006 the companyrepurchased 3,881,000 in stock with cash from operations totaling133,377,000, while insiders sold off over 95 million in exercisedoptions. That, in itself, is not wrong, but since the operating cash ofthe company to repurchase these shares came from the undisclosedattrition rates of collapsed distributors who had bought into the"True Wealth" dream of Usana, but instead lost money and wentinto further debt, the Usana management literally funded stock buybacks that enriched themselves from those failed distributors whocould least afford to lose money. That is wrong, that is evil,"Minkow said.

Moreover, while Wall Street analysts who follow USANAcontinue to recommend a strong buy for the stock, the Minkowreport may demonstrate a material failure by many analysts tounderstand the `below the iceberg' effects of the Usana numbers.Says Minkow, "While many analysts point to things like EBITAand EPS, they ignore -- because they are purposely kept in the darkby Usana's failure to disclose material facts -- critical factors suchas the obvious: the largest portion of Usana's revenue comes fromdistributors who -are in a constant state of collapse with 85% ofthese distributors losing money and no less than 74% failing withina 12 month time period, causing significant saturation challengesthat will materially impact the company."

"If new distributors knew about failure and collapse rates, theinability to resell hopelessly overpriced products and that most ofthe money paid in commissions goes to the top 3% of the Usanadistributors, Usana's ability to attract new distributors would bematerially adversely affected, which appears to be why they havechosen not to disclose any of these facts."

There are also significant management credibility issues with Dr.Myron Wentz, the company Chairman and Founder and majority

49


stock holder, who renounced his U.S. citizenship andmisrepresented the location of the entity that controls 46% ofUsana stock -- it is in the tax-haven country of Liechtenstein.

95. On the same day, The Wall Street Journal published an article entitled "Usana

Sales Plan Draws Fire From Felon Turned Gumshoe" which summarized many of the facts and

conclusions set forth in the report by the Fraud Discovery Institute.

96. Upon the release of this shocking news, shares of the Company's common stock

declined $8.92 per share, or over 15%, to close on March 15, 2007 at $49.85 per share, on

unusually heavy trading volume.

97. In the evening of March 15, 2007, USANA tried to control the damage to its stock

price by issuing a press release announcing that it had filed a defamation action against the Fraud

Discovery Institute and its co-founder, Barry Minkow, in the United States District Court for the

District of Utah. USANA Health Sciences, Inc. v. Barry Minkow, Case No. 2:07CV 159 (D.

Utah). In response to USANA's lawsuit, on March 18, 2007, the Fraud Discovery Institute

published a detailed letter further discussing USANA's wrongful and fraudulent business

practices. Among other things, the letter stated that: (i) 87% of USANA Associates lose money;

(ii) the majority of USANA's Associates' sales were made to each other and not to consumers;

and (iii) USANA's published average Associate incomes were misleading, as only 3% of

Associates received 70% of all commissions.

98. Although the most recent complaint in that action questions the motives of Barry

Minkow in publishing the report concerning USANA, the complaint does not allege as untrue

the alarming statistics reported by the Fraud Discovery Institute.

50


99. On March 19, 2007, USANA issued a press release entitled "USANA Voluntarily

Discloses Informal SEC Inquiry," stating that the Salt Lake District Office of the SEC had begun

an informal investigation into the Company. This information was echoed in a Form 8-K filed

with the SEC on March 21, 2007. Later, on June 13, 2007, in an article entitled "SEC Eyeing

Usana Chief," the New York Post reported that the SEC investigation included inquiries into

Myron Wentz's sale of 85,000 shares on February 12, 2007 for millions of dollars in proceeds.

Not coincidentally, February 12, 2007 represented a near five year high in the Company's stock

price. Soon thereafter, USANA's fraud was revealed and the stock plummeted. On August 8,

2007, Forbes. com reported that the FBI has launched a criminal investigation into USANA's

activities.

100. As alleged above, in June 2007, a class action lawsuit was commenced on behalf

of former and present USANA Associates in the State of California against the Company and

several of its senior officers. Johnson v. USANA Health Sciences, Inc., Case No. 37-2007-

00053808-CU-BT-NC (Cal. Super. Ct.). The complaint alleges, among other things, that: (i) the

Company's multi-level marketing model operated as a pyramid scheme; (ii) the Company's

business model was unsustainable because it required the constant recruitment of new Associates

due to a high level of attrition within the Company's sales force; (iii) the majority of the

Company's Associates did not actually sell products to consumers, but rather sold to other

Associates; (iv) more than 74% of the Company's Associates were failing within the first year of

joining the Company; (v) more than 87% of the Company's Associates were losing money

instead of receiving compensation for their sales efforts; (vi) the Company lacked adequate

internal and financial controls; (vii) the Company's statements about its future business prospects

51


and projections were lacking in a reasonable basis at the time they were made; (viii) the

Company's representation of a 75% reduction in "middleman" costs because of its direct

marketing system was false or misleading, as each tier of distribution received approximately 8%

in commissions, resulting in prices which were 50% - 400% above standard retail prices; (ix) the

qualifications of members of the Company's Advisory Board were misrepresented and such

members were biased and/or had conflicts of interest which precluded them from providing

independent advice; and (x) the founder of the Company had renounced his U.S. Citizenship and

moved substantial assets to the Caribbean tax havens of St. Kitts and Nevis, the Isle of Mann,

and Liechtenstein.

101, On July 16, 2007, in a Form 8-K filed with the SEC, USANA announced the

resignation of Grant Thornton LLP ("GT"), its auditor for nearly 10 years. Although no reason

was cited for OT's abrupt and unusual resignation, the Form 8-K extensively discussed a

disagreement between OT and USANA concerning the scope of the procedures to be performed

by the auditors and the extent to which USANA's Audit Committee should engage new,

independent consultants in lieu of recent accusations against the Company. In spite of GT's

curious resignation, the 8-K claims that all disagreements between GT and the Company were

resolved to GT's satisfaction. In reaction to this news, the price of USANA's stock dropped

from $50.10 to $41.38, a decline of 17.4%.

102. Since the end of the Class Period, USANA has repeatedly lowered its sales

projections for 2007. For example, on April 4, 2007, the Company reduced its net sales

projections for the first quarter of 2007 from $1034105 million, to $102 million. Later, on April

17, 2007, the Company lowered its nets sales projections for the full-year 2007 from $430-$437

52


million, to approximately $423-$430 million ("a one year growth rate of between 15% and

18%"). On October 16, 2007, USANA again reduced its net sales projections for the full-year

2007 from $423-$430 million, to $422-$424 million.

103. USANA's stock price has never recovered from the March 15, 2007 revelation,

closing at $41.68 on November 30, 2007.

CLASS ACTION ALLEGATIONS

104, Lead Plaintiff brings this action as a class action pursuant to Federal Rule of Civil

Procedure 23(a) and (b)(3) on behalf of a Class, consisting of all those who purchased or

otherwise acquired USANA common stock between July 18, 2006 through and including March

14, 2007, and who were damaged thereby. Excluded from the Class are the Individual

Defendants, members of their immediate families and their legal representatives, heirs,

successors or assigns and any entity in which defendants have or had a controlling interest.

105. The members of the Class are so numerous that joinder of all members is

impracticable. Throughout the Class Period, USANA common stock was actively traded on

NASDAQ under the stock symbol "USNA." While the exact number of Class members is

unknown to Lead Plaintiff at this time and can only be ascertained through appropriate

discovery, Lead Plaintiff believes that there are hundreds or thousands of members in the

proposed Class. Record owners and other members of the Class may be identified from records

maintained by USANA or its transfer agent and may be notified of the pendency of this action by

mail, using the form of notice similar to that customarily used in securities class actions.

53


106. Lead Plaintiff's claims are typical of the claims of the members of the Class as all

members of the Class are similarly affected by defendants' wrongful conduct in violation of

federal law that is complained of herein.

107. Lead Plaintiff will fairly and adequately protect the interests of the members of

the Class and has retained counsel competent and experienced in class and securities litigation.

Lead Plaintiff has no interests that conflict with those of the class.

108. Common questions of law and fact exist as to all members of the Class and

predominate over any questions solely affecting individual members of the Class. Among the

questions of law and fact common to the Class are:

(a) whether the federal securities laws were violated by defendants' acts asalleged herein;

(b) whether statements made by defendants to the investing public during theClass Period misrepresented material facts about the business, operationsand management of USANA;

(c) whether defendants' statements omitted material facts necessary to makethe statements made, in light of the circumstances under which they weremade, not misleading;

(d) whether defendants knew or recklessly disregarded that their statementswere false and misleading;

(e) whether the price of USANA common stock was artificially inflated; and

(f) to what extent the members of the Class have sustained damages and theproper measure of damages.

109. A class action is superior to all other available methods for the fair and efficient

adjudication of this controversy since joinder of all members is impracticable. Furthermore, as

the damages suffered by individual Class members may be relatively small, the expense and

burden of individual litigation make it impassible for members of the Class to individually

54


redress the wrongs done to them. There will be no difficulty in the management of this action as

a class action.

LOSS CAUSATION

110. During the Class Period, as detailed herein, defendants engaged in a scheme to

deceive the market and a course of conduct that artificially inflated or distorted the price of

USANA common stock and operated as a fraud or deceit on the Class. Defendants achieved this

by making positive statements about USANA's business and financial results to the investing

public while concealing material information, including that USANA's business operated as a

pyramid scheme. When the truth was disclosed to the market, the price of USANA common

stock fell precipitously. As a result of their transactions in USANA common stock during the

Class Period, Lead Plaintiff and other members of the Class suffered economic loss, i.e.,

damages under federal securities laws.

111. As a direct result of the public revelations regarding the truth about USANA's

business practices, the price of USANA common stock closed at $49.85 on March 15, 2007, a

decline of over 15% from the previous day's closing price of $58.77 and a decline of almost 20%

from the Class Period high trading price, which had been reached only 22 days earlier. This drop

removed artificial inflation and distortion from USANA common stock, thus causing real

economic loss to investors who purchased USANA stock during the Class Period.

112. The timing and magnitude of the decline of USANA common stock negate any

inference that the losses suffered by Lead Plaintiff and other Class members was caused by

changed market conditions, industry factors, or facts unrelated to defendants' fraudulent conduct.

55


ADDITIONAL SCIENTER ALLEGATIONS

113. As alleged herein, defendants acted with scienter in that defendants knew that the

public documents and statements issued or disseminated in the name of the Company were

materially false and misleading; knew that such statements or documents would be issued or

disseminated to the investing public; and knowingly and substantially participated or acquiesced

in the issuance or dissemination of such statements or documents as primary violations of the

federal securities laws. As set forth elsewhere herein in detail, defendants, by virtue of their

receipt of information reflecting the true facts regarding USANA their control over, and/or

receipt and/or modification of USANA's allegedly materially misleading misstatements and/or

their associations with the Company which made them privy to confidential proprietary

information concerning USANA, participated in the fraudulent scheme alleged herein.

114. Defendants knew or recklessly disregarded the false and misleading nature of the

information which they caused to be disseminated to the investing public. The fraudulent

scheme described herein, which concerns the heart of the Company's business model, could not

have been perpetrated without the knowledge and complicity of the personnel at the highest level

of the Company, including the Individual Defendants.

115. The Individual Defendants had the opportunity to perpetrate the fraudulent

scheme and course of business described herein because they were the most senior officers of

USANA and they issued statements and press releases on behalf of the Company.

116. The Individual Defend antswere further motivated to engage in a fraudulent

course of conduct as it allowed them to sell 138,700 shares of their personally-held USANA

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stock at inflated prices, for gross proceeds in excess of $7,608,565. The shares sold by the

Individual Defendants during the Class Period are set in the following chart:

Name Date Shares Price Proceeds

Fuller, Gilbert 10/19/06 33,700 $44.95 $1,541,815

Wentz, David 7/27/06 5,000 $43.83 $219,1507/28/06 5,000 $43.75 $218,7508/14/06 5,000 $44.35 $221,7508/15/06 5,000 $44.76 $223,800

Total: 20,000 $883,450

Wentz, Myron 2/12/07 85,000 $60.98 $5,183,300

117. Defendants' fraudulent scheme also allowed other Company insiders to sell

hundreds of thousands of shares of USANA common stock at artificially inflated or distorted

prices.

APPLICABILITY OF PRESUMPTION OF RELIANCE:FRAUD ON THE MARKET DOCTRINE

118. At all relevant times, the market for USANA common stock was an efficient

market for the following reasons, among others:

(a) USANA common stock met the requirements for listing, and was listedand actively traded on NASDAQ, a highly efficient and automatedmarket;

(b) As a regulated issuer, USNA filed periodic public reports with the SECand NASDAQ;

(c) USANA regularly communicated with public investors via establishedmarket communication mechanisms, including through regulardisseminations of press releases on the national circuits of major newswireservices and through other wide-ranging public disclosures, such ascommunications with the financial press and other similar reportingservices; and

(d) USANA was followed by several securities analysts employed by majorbrokerage firms who wrote reports which were distributed to the sales

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force and certain customers of their respective brokerage firms. Each ofthese reports was publicly available and entered the public marketplace.

119. Asa result of the foregoing, the market for USANA common stock promptly

digested current information regarding USANA from all publicly-available sources and reflected

such information in the price of USANA common stock. Under these circumstances, all those

who traded in USANA common stock during the Class Period suffered similar injury through

their purchases of USANA common stock at artificially inflated or distorted prices and a

presumption of reliance applies.

NO SAFE HARBOR

120. The statutory safe harbor provided for forward-looking statements under certain

circumstances does not apply to any of the allegedly false statements pleaded in this complaint.

Many of the specific statements pleaded herein were not identified as "forward-looking

statements" when made. To the extent there were any forward-looking statements, there were no

meaningful cautionary statements identifying important factors that could cause actual results to

differ materially from those in the purportedly forward-looking statements. Alternatively, to the

extent that the statutory safe harbor does apply to any forward-looking statements pleaded

herein, Defendants are liable for those false forward-looking statements because at the time each

of those forward-looking statements was made, the particular speaker knew that the particular

forward-looking statement was false, and/or the forward-looking statement was authorized

and/or approved by an executive officer of USANA who knew that those statements were false

when made.

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FIRST CLAIM

Violation Of Section 10(b) ofThe Exchange Act and Rule 10b-5

Promulsated Thereunder Against All Defendants

121. Lead Plaintiff repeats and realleges each and every allegation contained above as

if fully set forth herein.

122. During the Class Period, defendants carried out a plan, scheme and course of

conduct which was intended to and, throughout the Class Period, did: (i) deceive the investing

public, including plaintiff and other Class members, as alleged herein; and (ii) cause Lead

Plaintiff and other members of the Class to purchase USNA common stock at artificially inflated

or distorted prices. In furtherance of this unlawful scheme, plan and course of conduct,

defendants, and each of them, took the actions set forth herein.

123. Defendants: (a) employed devices, schemes, and artifices to defraud; (b) made

untrue statements of material fact and/or omitted to state material facts necessary to make the

statements not misleading; and (c) engaged in acts, practices, and a course of business which

operated as a fraud and deceit upon;hose who traded in USANA common stock in an effort to

maintain artificially inflated or distorted market prices for USANA common stock in violation of

Section 10(b) of the Exchange Act and Rule l Ob-5. All defendants are named either as primary

participants in the wrongful and illegal conduct charged herein or as controlling persons as

alleged below.

124. Defendants, individually and in concert, directly and indirectly, by the use, means

or instrumentalities of interstate commerce and/or of the mails, engaged and participated in a

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continuous course of conduct to conceal adverse material information about the business,

operations and future prospects of USANA as specified herein.

125. Defendants employed devices, schemes and artifices to defraud, while in

possession of material adverse non-public information and engaged in acts, practices, and a

course of conduct as alleged herein in an effort to assure investors of USANA's value and

performance and continued substantial growth, which included the making of, or the

participation in the making of, untrue statements of material facts and omitting to state material

facts necessary in order to make the statements made about USANA and its business operations

and future prospects in light of the circumstances under which they were made, not misleading,

as set forth more particularly herein, and engaged in transactions, practices and a course of

business which operated as a fraud and deceit upon those who traded in USANA common stock

during the Class Period.

126. Each of the Individual Defendant's primary liability, and controlling person

liability, arises from the following facts: (i) the Individual Defendants were high-level executives

and/or directors at the Company during the Class Period and members of the Company's

management team or had control thereof; (ii) each of these defendants, by virtue of his

responsibilities and activities as a senior officer and/or director of the Company was privy to and

participated in the creation, development and reporting of the Company's internal budgets, plans,

projections and/or reports; (iii) each of these defendants enjoyed significant personal contact and

familiarity with the other defendants and was advised of and had access to other members of the

Company's management team, internal reports and other data and information about the

Company's finances, operations, and sales at all relevant times; and (iv) each of these defendants

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was aware of the Company's dissemination of information to the investing public which they

knew or recklessly disregarded was materially false and misleading.

127. The Defendants had actual knowledge of the misrepresentations and omissions-of

material facts set forth herein, or acted with reckless disregard for the truth in that they failed to

ascertain and to disclose such facts, even though such facts were available to them. Such

Defendants' material misrepresentations and/or omissions were done knowingly or recklessly

and for the purpose and effect of concealing USANA's operating condition and future business

prospects from the investing public and supporting the artificially inflated or distorted price of

USANA common stock. As demonstrated by Defendants' misstatements of the Company's

business and operations throughout the Class Period, Defendants, if they did not have actual

knowledge of the misrepresentations and omissions alleged, were reckless in failing to obtain

such knowledge by deliberately refraining from taking those steps necessary to discover whether

those statements were false or misleading.

128. As a result of the dissemination of the materially false and misleading information

and failure to disclose material facts, as set forth above, the market price of USANA common

stock was artificially inflated or distorted during the Class Period. In ignorance of the fact that

market prices of USANA common stock were artificially inflated or distorted, and relying

directly or indirectly on the false and misleading statements made by defendants, or upon the

integrity of the market in which USANA common stock trades, and/or in the absence of material

adverse information that was known to or recklessly disregarded by defendants, but not disclosed

in public statements by defendants during the Class Period, Lead Plaintiff and the other members

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of the Class purchased and/or acquired USANA common stock at artificially inflated or distorted

prices during the Class Period, and were damaged thereby.

129. At the time of defendants' misrepresentations and omissions, Lead Plaintiff and

other members of the Class were ignorant of their falsity, and believed them to be true. Had

Lead Plaintiff and the other members of the Class and the marketplace known the truth regarding

USANA's business practices, which were not disclosed by defendants, Lead Plaintiff and other

members of the Class would not have traded in USANA common stock or would not have traded

in USANA common stock at the artificially inflated or distorted prices that were paid.

130. By virtue of the foregoing, defendants have violated Section 10(b) of the

Exchange Act and Rule l Ob-5 promulgated thereunder.

131. As a direct and proximate result of defendants' wrongful conduct, Lead Plaintiff

and the other members of the Class suffered damages in connection with their respective

transactions in USANA common stock during the Class Period.

SECOND CLAIM

Violation of Section 20(a) ofThe Exchange Act Against the Individual Defendants

132. Lead Plaintiff repeats and realleges each and every allegation contained above as

if fully set forth herein.

133. The Individual Defendants acted as controlling persons of USANA within the

meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their high-level

positions, and their ownership and contractual rights, participation in and/or awareness of the

Company's operations and/or intimate knowledge of the false financial statements filed by the

Company with the SEC and disseminated to the investing public, the Individual Defendants had

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the power to influence and control and did influence and control, directly or indirectly, the

decision-making of the Company, including the content and dissemination of the various

statements which Plaintiffs contend are false and misleading. The Individual Defendants were

provided with or had unlimited access to copies of the Company's reports, press releases, public

filings and other statements alleged by plaintiffs to be misleading prior to and/or shortly after

these statements were issued and had the ability to prevent the issuance of the statements or

cause the statements to be corrected.

134. In particular, each of these defendants had direct and supervisory involvement in

the day-to-day operations of the Company and, therefore, is presumed to have had the power to

control or influence the particular transactions giving rise to the securities violations as alleged

herein, and exercised the same.

135. As set forth above, USANA and the Individual Defendants each violated Section

10(b) and Rule l Ob-5 by their acts and omissions as alleged in this Complaint. By virtue of their

positions as controlling persons, the Individual Defendants are liable pursuant to Section 20(a) of

the Exchange Act. As a direct and proximate result of defendants' wrongful conduct, Lead

Plaintiff and other members of the Class suffered damages in connection with their purchase of

USANA common stock during the Class Period.

WHEREFORE, Lead Plaintiff prays for relief and judgment, as follows:

a. Determining that this action is a proper class action under Rule 23of the Federal Rules of Civil Procedure;

b. Awarding compensatory damages in favor of Lead Plaintiff andthe other Class members against all defendants, jointly andseverally, for all damages sustained as a result of defendants'wrongdoing, in an amount to be proven at trial, including interestthereon;

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C. Awarding Lead Plaintiff and the Class their reasonable costs andexpenses incurred in , this action, including counsel fees and expertfees; and

d. Such other and further relief as the Court may deem just andproper.

JURY TRIAL DEMAND

Lead Plaintiff hereby demands a trial by jury.

Dated: December 3, 2007 DREIER LLP

By: ►__Daniel B. cotti (admitte^ .. hac vice)499 Park AvenueNew York, New York 10022Telephone: (212) [email protected]

Lead Counsel for Plaintiffs

Jan Graham (01231)GRAHAM LAW OFFICESAmbassador Plaza150 South 600 East Suites SA & 5BSalt Lake City, UT 84102Telephone: (801) [email protected]

Associated Local Counsel for Plaintiffs

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EXHIBIT A


PLAINTIFF'S CERTIFICATIONUSANA HEALTH SCIENCES, INC.

I, Irina Sech, hereby declare under penalty of perjury that:

1. . Plaintiff has reviewed the complaint prepared by counsel and is willing to serve asa lead plaintiff or named plaintiff in the action based upon the allegations in thatcomplaint or a substantively similar complaint or amended complaint to be filed.

2. I did not purchase the securities that are the subject of this action at the directionof plaintiffs counsel or in order to participate in this action.

3. I am willing to serve as a representative party on behalf of the class, includingproviding testimony at deposition and trial, if necessary.

4. My transactions during the Class Period (7/18/06-3/14/07) are as set forth below:

PurchasesDate of Purchases Number of Shares Purchased Price per Share

See Attached Schedule A

SalesDate of Sale(s) Number of Shares Sold Price per Share

See.Attached Schedule A

5. 1 have made no transactions that are the subject of this action except for those setforth above.

6. During the three years prior to the date of this Certification, I have not sought toserve or served as a representative party for a class action under the federalsecurities laws except in this litigation.

7. I will not accept any payment for serving as a representative party on behalf of theclass beyond my pro rata share of any recovery, except such reasonable costs andexpenses (including lost wages) directly relating to the representation of the classas ordered or approved by the Court. I understand that this is not a claim form,and that my ability to share in any recovery as a member of the class is unaffectedby my decision to serve as a representative party.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this I day of , 2007

^^, "'" afore

Irina Sech


SCHEDULE A

Transaction :Price:PerDate (Puirchasi or Sak) No. Shares -Share`

soo

c-7 P:j I

(admitted pro hac vice) lead counsel for plaintiffs -...

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