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Is Or Was Herbalife Ltd. The Focus Of An SEC Probe?

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Herbalife is scheduled to release its next earnings report on Aug. 5, and well-known bull Tim Ramey suggested that there could also be an update on the alleged Securities and Exchange Commission’s investigation of the company. He thinks management will say that the SEC probe is closed and possibly has been for some time.

But whatever happens with the reports about the SEC investigation, Herbalife did add a big win to its belt today when a judge threw out a lawsuit related to pyramid scheme allegations.

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Ramey contradicts Probes Reporter

Those who read his report about his own work on what appears to be a probe of some kind involving Herbalife with the SEC probably noticed a glaring discrepancy between Ramey and a trusted source on the topic of FOIA requests. The question now is whether you trust Ramey's work or whether you trust Probes Reporter's work. In this case, it seems as if John Gavin of Probes Reporter may be the one whose work is more trustworthy, although plenty of people will probably argue the other way. But Gavin does have extensive expertise in submitting requests for information under the Freedom of Information Act (FOIA), and is strictly neutral in his work. Ignoring any conflict of interest questions, Ramey has a buy on Herbalife.

And he said in February that they received what he calls a "gold standard" response on Herbalife which essentially confirmed that there was some sort of open investigation involving the company. Of course we have no idea what kind of investigation this might be or what sort of implications it might have for the company, if any. Nonetheless, it remains an overhang for Herbalife stock.

Gavin tells ValueWalk that since Ramey released his report suggesting that any SEC probe linked to Herbalife was completed in July 2014, he has submitted his own updated FOIA request.

What's involved in submitting a FOIA request?

He said his latest request went out two weeks ago and he is now awaiting an updated response from the SEC. It should be noted that he has 15 years of experience in writing and submitting FOIA requests, so he knows precisely how to word such requests to get the maximum amount of information. Ramey, on the other hand, doesn't appear to have such a track record specifically involving FOIA requests.

Gavin says he stands behind his report from February that there was most likely some sort of investigation linked to Herbalife which was still open then. He also pointed out that the SEC does make mistakes in responding to FOIA requests and, in fact, has apparently made mistakes on searching for data on Herbalife in the past, based on past responses to his requests. With the amount of data SEC investigators are searching and processing, mistakes are to be expected—particularly if not enough information is included in the request.

For example, a search on "Herbal Life" in the database may not turn up anything, and it's an easy mistake for investigators to make. There are countless other ways in which mistakes could happen as well. But when there's a track record of multiple SEC responses suggesting that an investigation is open and then suddenly a request which comes back with no information, it is right to question what's going on.

Herbalife did win a key victory today when a judge tossed out a lawsuit filed by investors accusing it of running a pyramid scheme. This is huge for an embattled company that has been facing pyramid scheme allegations for nearly three years. It might also provide a clue as to what the outcome of any SEC investigation might be, if there is or was one, as all indications suggest there was.

A key contradiction on Herbalife

It will be interesting to see what sort of response Gavin receives from the SEC this time, particularly in light of the fact that he has received multiple apparent confirmations of an investigation from the SEC since July 2014 when Ramey thinks the probe was over by.

An Herbalife spokesperson was not immediately available for comment. We also contacted Ramey for a statement and requested copies of the FOIA requests he sent to the SEC, but we did not receive a response.

As of this writing, shares of Herbalife were down 1.14% at $51.30 per share.

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