ZEEKREWARDS REVIEW

Len Clements © 2012 In the 21 years I have been analyzing and reviewing network marketing programs I don’t believe I have ever received more requests for commentary on any single opportunity, over any six month period, than I have for ZeekRewards. Nor do I believe there has been as many assumptions, and as much conjecture and misinformation published about any single network marketing program. ZeekRewards is confusing. Let’s see if we can clear things up a bit. The first challenge in reviewing ZeekRewards is that it has been in a constant state of metamorphosis. It’s like trying to paint a portrait of a butterfly while it’s still in the cocoon. And although we know it started out as a pretty ugly caterpillar, it’s still yet to be seen exactly what’s going to emerge. But after closely following, researching and analyzing ZR for over three months I think I’ve got a pretty good idea of what they are turning into – and it isn’t a beautiful butterfly. More like a malformed, brown moth. But the real question is, will it fly, or die? Let’s back up (so my larvae analogy will make more sense). Rex Venture Group launched Zeekler.com, the non-MLM penny auction site, back on March of 2010. Then ZeekRewards launched in January of 2011. This quasi-MLM company offered penny auction bids to be used over on Zeekler.com, and touted their “compounder” compensation plan. ZeekRewards initially had more red flags sticking out of it than the Russian Consulate. One of the largest was that they referred to their compensation plan as the compounder. Indeed, the ZeekRewards caterpillar was guaranteeing a “125% return” on the amount you spent on bids, and was routinely bragging about how your “bid account” would “compound daily”.1 Many reps were blatantly referring to this as a “return on investment” or “ROI”.2 Let’s back up a little more. Back in 1946 the Security & Exchange Commission (SEC) sued a company called the Howey Company.3 The result of that lawsuit was the “Howey Test” which determines if something is a security of not. Securities, like stocks and mutual funds, are illegal to sell, or even offer, without a license and the company generating the return must be registered with the SEC. The Howey Test defined a security as: 1) And investment of consideration (anything of value, but usually money); 2) into a common enterprise (others are paying into the same enterprise); 3) where the return is generated solely by the efforts of others (the investor takes no part in, nor has any control of, the processes that generate the return). For example, you put your money into a mutual fund. Somebody else does all the work in determining what stocks to invest in, move out of, and in what amounts. It is also important to note that more recent legal actions have removed the word “solely” and now seem to be requiring that someone else merely do most of the work.4
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http://bit.ly/MV7i0c Although ZeekRewards corporate has been accused of going so far as to use such terms, I can find no reliable evidence of this. 3 http://supreme.justia.com/cases/federal/us/328/293/case.html 4 i.e. United Housing Foundation v. Forman, 421 U.S. 837 (1975),

So, asserting that you can simply buy a bunch of bids, kick back, and watch the cash roll in, would clearly pass the Howey Test. And this is a test you want to get an F in! Okay, that wasn’t exactly how it worked in even ZR’s larvae stage. But it was way too close. But now we’re getting too far ahead.

Renovation Begins
Around August of 2011 ZeekRewards hired “the top MLM consultant in the industry, Dr. Keith Laggos, PHD, and we hired the top MLM Law Firm, Gerald Nehra and Richard Waak, to analyze everything we are doing in light of recent litigation and advise us where we might be vulnerable to regulatory attack.”5 Soon after they also hired MLM attorney Kevin Grimes (Grimes & Reese), and a few months later brought on Greg Caldwell6 as their COO to handle compliance training, Peter Mingles7 as their Training & Incentives Coordinator, and Dr. Clifton Jolly8 to head up their Public Relations. ZR founder and CEO Paul Burks described the motivation for hiring this Dream Team by saying: “Since we designed our pay system there have been some legal decisions that involved other companies’ pay plans but, because of similarities that those other pay plans had to ours we felt it was wise to get competent advise to avoid potential problems down the road.” Mr. Burks goes on to say they hired Laggos, Nehra, et al to, “analyze everything we are doing in light of recent litigation and advise us where we might be vulnerable to regulatory attack.” I can only assume what “legal decisions” and “recent litigation” Mr. Burks is referring to, but he was not referring to any litigation against ZeekRewards. He’s most likely referring to the recent BurnLounge case, although their comp plan wasn’t that similar. AdSurfDaily’s was, but that litigation occurred well before the invention of ZR’s pay plan. This wouldn’t be the first time ZR management would offer an explanation that didn’t quite jive with the facts. But again, I’m getting ahead of myself. One of the first things the new legal compliance team did was to enact a strict prohibition against using any terminology suggesting buying bids was an “investment”, or would “compound”, or generate a “return”, or any other such securities invoking lingo. To wit: “Do NOT use the word compound or any variation of the term – ‘Compound’ is a term used by Albert Einstein in a famous quote about ‘interest’ and is not allowed “9 Of course, trying to extract all this naughty nomenclature from cyberspace is like trying to excise the fudge from a Rose Bowl size bucket of fudge swirl ice cream. Even ZR management apparently couldn’t find every remnant of their own infractions, as evidenced by section 34 of their current P&Ps where they offer a bounty of “10 compounding bids” for reporting violators, and the still active URL Zeekrewards.com/CompounderReport_buckets.html.
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http://zeekrewardsnews.com/2011/08/letter-from-zeek-ceo-paul-burks/ Owner & President of White Hat Solutions, a “Corporate Investigation & Security Consulting” company. Founder & CEO of PM Marketing, a premier provider of leads and training to the MLM industry. Founder & CEO of Advent Communications, a premier public relations firm serving the MLM industry. http://zeekrewardsnews.com/2012/01/compliance-compliance-and-more-compliance/#comment-3351

Another bit of semantic romanticizing occurred when the previously titled “Retail Profit Pool” was changed to the new “approved terminology” of “Retail Point Pool”, now involving “Retail Revenue Shares”. For the record, I am personal friends, to varying degrees, with Nehra, Waak, Grimes, Reese, and Laggos, and would consider Grimes & Reese and Nehra & Waak to be among the top MLM attorney’s in the country (along with Kevin Thompson). I do believe they’ve done the best they can do with what they have to work with. Having said that, even Albert Einstein couldn’t make 1+1 equal three. So about the time all the online chatter began about what ZeekRewards was and was not, legally, structurally, and economically, was about the time it started to turn into something different. My argument for not joining the debate during this time was that it was tantamount to arguing whether this newly found species was going to be a beautiful, rainbow colored butterfly, a fuzzy gray moth, or a malaria riddled mosquito, while it was still inside the cocoon. Unlike so many other Zeek critics, I chose to wait to see what emerged rather than judge was it was, or was in the process of changing from. I also, unlike a lot of MLM critics and commentators, try to get my facts straight before making any public commentary, and I try my best to get them from the company itself, with zero degrees of separation. In that effort I began the arduous process of arranging an interview with a senior member of ZR management on June 13th, 2012. After my eMail10 had garnered no response for five days I tried again and received a prompt response from Chief Marketing Officer Dawn Wright-Olivares saying that the earliest she would be available was “late July” after their upcoming Red Carpet event. I responded that this was perfectly understandable (which it was – ZR management was certainly in a state of overwhelm around this time, and likely still is), but explained that I really needed to publish a review much sooner. In fact, and as I explained to Ms. Wright-Olivares, I was already receiving emails suggesting I was paid “hush money” to not comment on them, or was not commenting negatively because ZeekRewards was a corporate member of the ANMP11, which I am a board member of. I asked if there was any other member of ZR management that would be available for an earlier interview. Ms. Wright-Olivares never responded to this follow up question. In was only after I passively/aggressively mentioned my challenge in procuring an interview in a MarketWave Alert12 that I was contacted by COO Greg Caldwell by phone message to arrange an interview with Paul Burks. That interview was postponed to the following week, then postponed again. And again. The latter postponement was understandable considering they had just received a CID (Civil Investigative Demand) from the North Carolina (their home state) Attorney General’s office. More on that later. For now, I do believe their intent to have me conduct an interview with Mr. Burkes with, at his request, Kevin Grimes present, was sincere, and that they do have higher priorities right now than letting me ask them a bunch of uncomfortable questions. But I can’t wait forever. So here we are.

10 11 12

To interviews@zeeklers.com Association of Network Marketing Professionals; http://www.TheANMP.org http://www.marketwaveinc.com/viewalert.asp?id=162

In the Beginning...
Rex Venture Group, founded and controlled by Paul Burks, has had a number of subsidiary companies throughout it’s 14 year history, most offering some type of multilevel compensation. These include New Net Mail, New Net Quest, Signed and Numbered International, Inc., Free Store Club, FireShaker, Lighthouse America, and of course Zeekler and ZeekRewards. The most prominent, and recent, Zeek predecessors were Free Store Club and New Net Mail, which offered a subscription program for discounted name brand products for $9.95 to $49.95 per month, with an initial buy in that reached $1,295.00. This got you a set of cookware, seven “Courtesy Subscriptions”, and a “Gold Affiliate Free Store Club membership”. It paid overrides based on a 2x21 matrix. Burks also promoted what he called the “Exact Marketing Method” which he claimed had a “95% success rate”. It would appear that no competent MLM attorney was working with Mr. Burks back then.

What’s a Penny Auction?
Basically, a penny auction is where there is a clock counting down the time the item is up for auction, and every time someone places a bid the sell price of the item goes up one penny, and 20 more seconds are added to the timer. The object is to be the very last bidder when the time runs out. Thus, it would make no sense to bid unless it was within the last few seconds before time runs out. Penny auctions entice you with stories of bidders who purchased a $500 iPad for $35, or a $2,500 HDTV for $300. How can the auction site afford to do this? Do the math. In Zeekler (a separate entity from ZeekRewards) a “retail” bid cost 60 cents and a “VIP” bid cost $1.00. High ticket items are usually offered only to VIP bidders, so at a penny a bid a sell price of $300 means 30,000 bids were place. That’s $30,000 to Zeekler, thus a $27,500 gross profit on the HDTV. And one very happy bidder, and hundreds of others who paid $27,500 for bids that got them nothing. Penny auctions in general, of which Zeekler is one of several dozen in the US alone, don’t seem to be sliding in the right direction on the regulatory or media Good Will scale. Warnings are popping up everywhere, including AARP13, the BBB14, and the FTC15, as well as other foreign markets from Malta16, to Canada17, to New Zealand18. And I’ve been making the case for years that it’s not just the FTC, FDA and SEC that you need to worry about, but rather the potentially greater damage that can be caused by ABC19, NBC20 and CBS21. Or Fox22, or USAToday23.
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http://www.aarp.org/money/scams-fraud/info-10-2011/online-penny-auctions-real-or-ripoffs.1.htmll http://www.bbb.org/us/WWWRoot/preview.centralflorida.bbb.org/article/bbb-cautions-consumers-onpenny-auctions-285433 15 http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt041.shtm 16 http://www.timesofmalta.com/articles/view/20120803/local/mccaa-warning-on-penny-auctionwebsites.4313599 17 http://www.cbc.ca/news/canada/edmonton/story/2010/08/24/edmonton-penny-auctions-warning.htmll 18 http://www.3news.co.nz/Warning-over-penny-auctions/tabid/412/articleID/253617/Default.aspx 19 http://www.abcactionnews.com/dpp/money/consumer/dont_waste_your_money/consumer-reports:penny-auction-warning 20 http://www.nbc12.com/story/12744216/warning-about-online-penny-auction 21 http://newyork.cbslocal.com/2012/05/04/ask-asa-beware-of-penny-auctions/ 22 http://www.youtube.com/watch?v=SA-gBR1AKOs

Most of the above news reports and warnings are asking the same question: Isn’t this just gambling? Well, that’s the million dollar question. There is certainly some small amount of skill involved, but not much more than there is in Blackjack or draw poker. Luck, and who has the fastest computer processor and internet speed, seem to be the primary factor. But one things is for sure. Penny auctions can be massively profitable.

What’s ZeekRewards?
ZeekRewards is the MLM program, separate from Zeekler.com, the auction site. ZR sells bids that can only be used at Zeekler.com. There are free bids, Retail Bids (60¢) and VIP bids ($1.00). You can choose between monthly subscriptions of $10 (Silver), $50 (Gold), or $99 (Diamond). These subscriptions give you more business related tools and services, but do not include bids. There is also a “Free Affiliate” option, but “Free Affiliates are able to watch their bonus points increase but will not be awarded cash payments until they upgrade.”24 You can join with an initial bid package of up to $10,000 – which appears to be a popular option. The comp plan and rules have changed significantly, and frequently. Currently – with no assurances this won’t be outdated by the time you read this – you can join as a “customer” first, who are provided free bids by Zeekler.25 The ZR affiliate who enrolls you as a Customer can also give you as many as 1,000 free bids to play around with. There are six different income sources offered through the ZR compensation plan. The two most controversial and potentially troublesome are the “Retail Points Pool” (a.k.a Retail Profit Pool) and commissions from the 2x5 Matrix.26 Both require you to be a “Qualified Affiliate”, which means you are on either the Silver, Gold or Diamond subscription program, have sponsored at least two Retail Customers (or “joined the Customer Co-op”), have “given away” at least 10 free bids as samples (must be VIP bids that you purchased), and has “placed a qualifying advertisement for Zeekler.com for the current 24 hour period and submitted it through his or her ZeekRewards back office”. The Matrix pays from 25¢ up to $3.50 monthly on every paid Affiliate subscription in your matrix, and also pays a matching bonus down two generations. The (then titled) Retail Profit Pool distributes shares of up to 50% of the combined daily profits generated by both ZeekRewards and Zeekler.com. ZR states, “The payout from the retail profit pool will normally be from 0.5% to 2%, historically averaging about 1.2%...”. This is based on the number of “VIP ProfitPoints” you have in your account. The points are acquired is several ways, but primarily by purchasing non-free bids and giving them away. Here’s an example provided by ZR (slightly paraphrased): You purchased 1,000 VIP Bids ($1.00 each) and gave them away as samples to your own retail
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http://www.usatoday.com/tech/columnist/kimkomando/2011-05-13-komando-penny-auctions_n.htm http://www.zeekrewards.com/faq.asp 25 There is some confusion as to what the number of free bids is, but the most common amounts states are 25, 100 or 250. 26 Two positions wide on the first level, five levels deep.

customers or to customers that were signed up for you by the Customer Co-op. Or, perhaps you sold $1,000 worth of Retail Bids to a Zeekler.com customer. Either would give you 1,000 points in your VIP Profit Points Balance. The company (today and at the end of each day) tallies the days net profits and determines the day's VIP Profit Share Award. Let's say the company determines that today's revenue allows for a 1.5% award. Assuming a 1,000 point balance, in this example, it would give you a $15.00 award. Now let's assume that you have set your preference to use 100% of your daily award to purchase more bids to give away as samples to grow your business (and your VIP balance). When you go check your Retail Point Pool report the next day, you will see that your account balance will now be 1,015 VIP ProfitPoints (assuming the bids were given away to your retail customers). Some, like your “Retail Store” and “The Shopping Daisy” appear to be throw ins that likely provide no significant income. Basically, you earn a percentage of the small affiliate commission paid by various online vendors, and your online shopping portal is one of literally tens-ofthousands that directly compete with one another. There’s also “ZAP Commissions” which is essentially a type of fast start bonus where you earn 20% on all personally enrolled referred customer’s retail bid pack purchases from Zeekler.com. Then there’s the “Retail Subscription Profits”. Here you can earn a 20% monthly “retail profit” from all personal “retail sales” on personally sponsored affiliate’s subscriptions. This begs the question, if the Silver, Gold and Diamond subscriptions have only one price – $10, $50 and $99 respectively – and contain only business related items that would be relevant only to ZR reps (i.e. a non-participant customer would never purchase), how is anything “retailed” here? Gratuitously slapping the word “retail” onto as many comp plan aspects as possible appears to be legal window dressing. And there’s certainly a need for it here, as will be explained later. Each subscription level offers a commensurate amount of Personal Volume, or “PV”, which is used for rank qualifying. By paying for a Silver ($10, 10 PV), Gold ($50, 50 PV) or Diamond ($99, 100 PV) subscription each month you qualify as a Distributor (10 PV), Manager (50 PV) or Executive (100 PV). There’s also a Senior Executive rank requiring 600 PV monthly. Of course, this begs the question, Why not simply call each rank Silver, Gold, Diamond and then something more valuable than diamond (why doesn’t any MLM company ever use Palladium? It’s spot price is usually higher than platinum or diamond, and it’s a really cool title. But I digress).

Cancellations, Rejections and Apprehensions
ZeekRewards seems to have had a hard time maintaining loving, committed relationships, at least on a corporate level. Musical Credit Card Processors First they got dumped by their credit card processor, allegedly due to an overabundance of fraudulent transactions involving the creation of fake accounts using stolen credit cards. Now they are running credit card payments through different foreign processors such as “Internet Paygate Seoul" & "Global Kamba" (S. Korea), "ZonaLibre1" (Panama), “Lucky Star Design” (Costa Rica), “Lamda EC” (Cyprus) and a processor in Hong Kong as well. Critics who question why ZR and Zeekler can’t hook up with even one US based processor simply don’t understand

the challenges involved. I don’t consider this to be necessary suspicious, or deleterious. I know from personal experience it is very challenging for any young MLM company to procure a credit card processor without having to accept loan shark rates, let alone one with the stank of fraud still wafting from it, regardless of ZR’s lack of culpability. Double Bank Boot But we’re still at the top of the list. Next CCBill, an international online payment gateway, gave them the boot27, follow by both of their banks! ZR spun their spurning this way: “Zeek is currently in the process of moving to a bank that can handle our growing needs and while in transition will be closing our old accounts…”.28 “After many years of good, strong business relationship Rex Venture Group had to move to a much larger bank that could handle our volume that has greater experience with international business.”29 Although, technically, they don’t specifically say it was their decision to move to a larger bank that can better “handle our growing needs”, they do appear to be trying to create that impression. When I called both banks they would neither confirm nor deny that ZR was asked to take their business elsewhere, but the circumstantial evidence of this is glaring. To wit: “Please be sure to deposit or cash any commission checks immediately so they clear before June 1st, 2012 or they will be returned to you with ‘account closed’ and will need to be reissued.”30 This notice appeared on Monday, May 28th, leaving only four full business days to deposit all outstanding commission checks. Not only does it appear these banks initiated ZR’s exit, but required that it be expedited. If this transition was in the control of ZR why not simply leave sufficient funds in the account to cover all outstanding checks? “As you know, we are currently in the process of transferring accounts to our new banks. While we will be able to resume check runs when the transfers are finalized, we do not want to cause any additional delay to our affiliates who are waiting for their May 21st or 28th commission checks. Therefore we are going to be issuing a claw-back of all requested checks into a special Zeek portal where any affiliate who is awaiting a physical check can instead choose their preferred eWallet for their commission payment.”31 Again, if ZR was voluntarily moving to a bigger bank, why not leave the old accounts open while they set up the new account?

27 28 29 30 31

http://zeekrewardsnews.com/2012/04/ccbill-subscription-cancellation/ http://zeekrewardsnews.com/2012/05/happymemorialday/ http://zeekrewardsnews.com/2012/05/updates-and-announcements/ http://zeekrewardsnews.com/2012/05/happymemorialday/ http://zeekrewardsnews.com/2012/05/may-21st-and-28th-pay-runs/

Keep in mind that ZR and Zeekler were actually defraying their banking activity between two separate banks: New Bridge Bank32 and BB&T33. Both are FDIC insured, publicly traded companies with total assets of $2.1 billion and $174.6 billion respectively. NewBridge was, in fact, a relatively small regional bank and alone probably could not have done the job. But BB&T, founded in 1872 and with 31,800 employees, appears to have considerable “experience with international business”34. But to be fair, ZR was churning up millions of dollars in weekly cash flow, not to mention just as many phone “inquiries” by curious, anxious, or furious ZR reps (using only slight hyperbole). Even BB&T was only a small-to-medium sized bank compared to Chase, Bank of America or Wells Fargo (each with assets over $1 trillion and more than 250,000 employees). According to a very reliable source, ZR at one time claimed to have letters from each bank confiding their inability to effectively meet ZR’s growing needs. I was told those letters would be made public to end any speculation as to who asked for the divorce (i.e. ZR decided to leave since their banks admitted they couldn’t handle their growth). That was over a month ago and, to my knowledge, no such letters have been revealed. Nor do I believe they ever will. Consider: Would a publicly traded business ever communicate to their shareholders, even indirectly, that they had a client who was capable of significantly increase their revenue, profits, and share value, but instead of expanding their capabilities to satisfy this client they instead chose to inform them of their inability to serve their growing needs, thus tacitly suggesting they may want to take their business elsewhere? Or, might the letters have explained the concerns the banks had with ZR, and directly told them to take their business elsewhere? Quickly. International Contraction Then there were the ZR members in several foreign countries who were abruptly informed that their accounts were being closed and their Retail Point Pool points would be lost (although they were offered refunds on the bids they recently purchased). ZR subsequently offered the following cryptic explanation to a Serbian rep during a live chat: “We do not have total knowledge of what happened. What I do know is that it is something with your countries government policies (not the Serbian people itself), that has required us to not list your country anymore.” Allegedly, individuals requesting clarification have received the following email response from ZR: “We apologize for the difficult position that this creates for you and us, but we are not able to do anything more than refund whatever purchases and subscriptions you have paid. We are being advised that we can not make any further comments about the issue. It is unfortunate political situation and we are all affected by it. We wish you well. thank you for contacting Zeek!”

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http://www.newbridgebank.com http://www.bbt.com http://www.bbt.com/bbtdotcom/business/commercial-institutional/international-services/default.page

Which was followed by this formal announcement by CEO Paul Burks on ZR’s official news site (emphasis is mine):35 “Lately there has been some online comments concerning some Zeek affiliates whose accounts were recently deactivated and a lot of speculation about why this was done. I just want to set the record straight about this unfortunate situation. The United States Government has established an Office of Foreign Assets Control (OFAC) through the US Treasury Department. This Federal agency maintains a list of “sanctioned countries” that is published on this website: http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx Under US law it is illegal for a US based individual or company to do business with individuals of companies in those countries. The penalties for violating these sanctions range from very large fines up to 30 years imprisonment. When we became aware that there were affiliates in our system who were from these prohibited countries we had no choice but to remove them from the program. It is understandable that they and their sponsors are frustrated and unhappy with this action but we had no other choice.” Now let’s actually set the record straight – none of this is true. Although ZR has never formally identified these “sanctioned countries” that they “had no choice” but to abandon, there were six countries that were removed from the pull down menu on the ZR application right when ZR reps from some of those counties began to complain. Those countries were Serbia, Croatia, Slovenia, Belarus, Egypt, and Macedonia. The problem is, there are no sanctions of any kind that prohibit anyone from the United States from enrolling someone from these countries as ZR affiliates. There are certain prohibitions against doing business with specific entities and individuals within specifically Belarus36, but the other five countries are not even on the list that ZR linked to! Furthermore, Avon and Oriflame currently operating in all six countries, Herbalife in all but Serbia, Amway is in Croatia and Slovenia, and Vemma is in Serbia, Croatia and Slovenia. I contacted the Office of Foreign Assets Control (OFAC) and confirmed the response that others claimed they had received. There is a “Specially Designated Nationals List” (SDN)37 that defines restrictions and prohibitions against doing business with specific entities and individuals in several countries, but the Office of Foreign Assets Control (OFAC) “...does not currently administer comprehensive sanctions programs against the countries listed in your email... There are no broad-based sanctions against the countries listed below.” I listed the six countries ZR claimed they “had no choice” but to pull out of, because it was “illegal” to do business there.

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http://zeekrewardsnews.com/2012/04/update-on-banned-countries-and-more/ http://www.treasury.gov/resource-center/sanctions/Documents/belarus.pdf http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx

To be clear, I would completely understand a company’s decision not to do business within those countries. They are havens for internet fraudsters, and if there’s even a one-in-one million chance of inadvertently hooking up with one of the “Specially Designated Nationals” on OFAC’s list, well, zero-in-a-million is better than one-in-a-million. Just don’t have them on the list to begin with, so innocent people don’t have to get terminated, and if you do have to eliminate these countries later, why not just tell the truth about why you’re doing it? Why make up some easily debunked story about how the government made you do it? Sans a Montana ZeekRewards is open in 49 states – all but Montana. They were open in Montana up until early June, 2012, when residents who tried to enroll (or upgrade) allegedly got this message: “Sorry, this service is currently unavailable in Montana. The State of Montana has a unique set of laws and our lawyers have said no enrollments there until we get in compliance with Montana law.” There is no mention of the Montana closure within Zeek Reward’s news site, and their Policies & Procedures still reference Montana as an open state. The only other official response from anyone within ZR management has been brief statements during live calls or interviews where they site Montana’s “unusual” regulations pertaining to MLM companies, and the extra “hoops” they have to go through. Montana’s “Office of the Commissioner of Securities & Insurance”38 tells a somewhat different story. Let’s start with the supposedly unusually restrictive regulations within Montana. Within the Montana Code39 they define a “multilevel distribution company” as a person that: (i) sells, distributes, or supplies goods or services through independent agents, contractors, or distributors at different levels of distribution; (ii) may recruit other participants in the company; and (iii) is eligible for commissions... bonuses, refunds, dividends, or other consideration that is or may be paid as a result of the sale of goods or services or the recruitment of or the performance or actions of other participants. They go on to define a “pyramid promotional scheme” as one that does not include a sales plan or operation that: (i) subject to the provisions of subsection (6)(c)(v), provides compensation to a participant based primarily upon the sale of goods or services by the participant, including goods or services used or consumed by the participant, and not primarily for obtaining the participation of other persons in the sales plan or operation and that provides compensation to the participant based upon the sale of goods or services by persons whose participation in the sales plan or operation has been obtained by the participant;”
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http://sao.mt.gov/ http://data.opi.mt.gov/bills/mca/30/10/30-10-324.htm

They go on to define “compensation”, as it relates to pyramid schemes, as not including: (i) payments to a participant based upon the sale of goods or services by the participant to third persons when the goods or services are purchased for actual use or consumption; or (ii) payments to a participant based upon the sale of goods or services to the participant that are used or consumed by the participant.” [All underline emphasis above and below is mine, and not original within the Code] The “provisions of subsection (6)(c)(v)” cited above refers to the specific refund policies required of all MLM operations pertinent to residents of Montana, which simply “...allows a person at least 15 days to cancel... participation in the sales plan or operation”, and if they do cancel within that 15 day period they are “entitled to a refund” for any purchase they made of “required items”. This section also requires that a refund of “not less than 90%” be refunded for “any currently marketable goods or services sold to the participant within 12 months... that have not been resold or consumed by the participant.” This includes “Sales plan or operation promotional materials, sales aids, and sales kits... if they are a required purchase for the participant or if the participant has received or may receive a financial benefit from their purchase.” In ZR’s P&Ps at the time of the closure (and as of this writing), specific to Montana, they offer a 90 day return policy, and a full 100% refund on all funds paid within 15% of cancellation. Not only is none of this particularly or exceptionally challenging, Montana’s explicit recognition of personally consumed product by distributors as being commissionable40 arguably ranks them among the easier to qualify for registration in41 (among the five states that require MLM companies to register42). It would appear ZR merely has to extend the return policy to 12 months, and make some other minor language changes to satisfy this section of the code. This would suggest there’s something else preventing Zeek from getting past Montana’s gatekeeper. I contacted the Montana Attorney General’s office and after being transferred five times I reach the Commissioner of Securities and Insurance which, I was told, was the department reviewing ZR’s case. Their Communication’s Director, Lucas Hamilton, confirmed that ZeekRewards had “not complied with the state’s security regulations”. He went on to say, “Our law requires that representative make more money from selling goods than from recruiting”. The implications made here will become clearer in the upcoming section related to legal concerns, where the Montana situation will be revisited within that context. North Carolina Discredit Union On August 2nd, 2012, reports started to appear online that the North Carolina State Employee’s Credit Union (NCSECU) had begun issuing warnings to their customers that Rex Venture Group was “fraudulent”. Allegedly the NCSECU was initiating these contacts, and in some cases by telephone. Here is an example of one such emailed warning:
40

While most states are moot on this point (and no state has specifically declared distributor purchases as non-commissionable), Texas, Kentucky, Oklahoma, South Dakota, Louisiana, and Ohio have also specifically declared personally consumed products by reps as being a bona-fide sale to an end user. 41 http://data.opi.mt.gov/bills/mca/30/10/30-10-326.htm 42 Montana, Louisiana, Georgia, Massachusetts and Wyoming.

“ZeekRewards is indeed a fraudulent company. Please refrain from entering into any type of business with this company as there have been several claims of fraudulent activity reported with ZeekRewards. Numerous reports of fraud have been given to the Better Business Bureau and other reports of fraud are listed on scam reporting websites. Please visit the links below to familiarize yourself with the company and some of the things that have been said about them. -- Jeremy Pittman, 801 E Team Leader/AO, mlo# 784404, 801 Contact Center” (phone number and email address, which has been redacted). When I first saw this, on a Zeek-critic website, I immediately questioned the validity of the email. It was hard to fathom that someone in a professional capacity would blatantly refer to a business as “indeed a fraudulent company” and discourage their patronage. He might as well have added an addendum, “Please have ZeekRewards attorneys send their lawsuit to this address...”. Instead he added a link to RipOffReport.com, suggesting he actually believes this is a reliable source of information. After others emailed the NCSECU regarding this issue, Mr. Pittman began responding with this commentary: “It has come to our attention that our responses about ZeekRewards are being used to present arguments concerning the company. We have officially taken the position that NCSECU is not confirming our denying fraud, but that we’ve received several reports of fraud. One of our internal departments has conducted research on the company and received several negative findings. It is the credit union’s stance that we should always try to keep our members’ best interests at heart. The information is not to bash or incriminate ZeekRewards, but merely to inform our membership of the potential dangers of investing in their company. One of our Senior Vice Presidents had the following to say about the company: ‘SECU has not indicated that Rex Venture Group is fraudulent. SECU recommends to members that they always conduct due diligence in investor education, and we are advising members to conduct due diligence of Rex Venture Group.’ Additionally, SECU recommends that members contact the NC Attorney General’s office with consumer complaints or the NC Secretary of State’s office with any investor concerns. ” Jeremy J. Pittman, 801 E Team Leader/AO, mlo# 784404, 801 Contact Center.” I have contacted the NCSECU and confirmed that Jeremy Pittman does work for them (but not in their “Risk Management” department), and the above email exchange has been verified by investigator Troy Dooly.43

43

Troy Dooly has been a great source of objective information about ZeekRewards – you can find his commentary here: http://mlmhelpdesk.com.

ZR’s COO Greg Caldwell has been in contact with the NCSECU and has published this response (in part): “...the person responsible admitted he really didn’t know anything about the laws regarding direct selling or how to identify a legitimate network marketing company or opportunity. Like all our critics, he was behaving unprofessionally by acting on false information.” This might explain Mr. Pittman’s drastic change in tone from “ZeekRewards is indeed a fraudulent company” to “the information is not to bash or incriminate ZeekRewards”, and why all requests for comment from the NCSECU is now answered with this statement from Leigh Brady, their media liaison: “SECU works closely with the NC Attorney General’s Office and the Secretary of State’s office to encourage consumer and investor education. We will always suggest that our members perform due diligence on any possible investment. While SECU has not indicated specifically that ZeekRewards or its affiliates are fraudulent, we are encouraging members to perform such due diligence on this company and its affiliates.” Obviously, someone at the NCSECU jumped the gun here. To unilaterally warn their clients that a company is a “fraud” and should be unconditionally avoided, and to initiate those warnings unprovoked, is highly irresponsible. While the matter will now likely rest with the NCSECU’s final, tamer stated position, you can’t unring the bell. And in cyberspace, they ring forever. North Carolina Attorney General When an AG’s office begins an investigation of an MLM company, or takes formal action against one, it can sting like hell, but it’s rarely deadly – unless it’s the AG of your home state. The other 49 are like branches of the tree. You can lop one off and, as long as it’s not the one most of your leaves are attached to (i.e. your California, Florida or Texas branch) you can survive, at least for a while. But your home state is where you’ve planted roots, and I’m sure you know what happens to a tree when you cut off the roots. I’m not at all suggesting the NC AG, specifically the “Department of Justice”, is going to do anything to kill the ZR Money Tree. But they may. They’ve recently issues a Civil Investigative Demand (CID) asking a lot of questions about how ZeekRewards works. I contacted the NC DOJ regarding this issue and received this response from Noelle Talley, their Public Information Officer: “So far we have received 8 complaints and 23 inquiries about ZeekRewards and related companies as well as numerous phone calls. The complaints generally seek refunds and say the company has not lived up to its promises. Yes, we do have concerns about ZeekRewards and related companies and have said so publicly. Our Consumer Protection Division has asked them to provide us with documents so we can examine their business practices.”

Greg Caldwell’s response (as published on Troy Dooly’s website44) essentially states that only 8 complaints, all of which have been addressed, is actually a low number considering the size and growth that ZR has experienced. And he’s absolutely right. If the NC DOJ examines the Zeek X-Ray close enough and finds all the same dark spots that I have, this won’t end well for ZR. If they just say, eh, it might be a smudge, let’s watch it and see if it gets bigger (as government officials are prone to do), then ZR will be okay for a while. Until it gets bigger. Better Business Bureau Rex Venture Group and its affiliate companies currently have an “F” grade with the BBB, which should be given very little weight. I won’t rehash my exposé of the BBB grading system here45, except to say it’s blatantly rigged to favor those who pay for BBB “accreditation”, and unjustly disfavors MLM companies. In fact, within the section that explains an MLM company’s low grade they will often site “the industry in which the company operates”. Unless, of course, they pay for BBB membership. Then they amazingly have absolutely no problem with “the industry in which the company operates” and routinely award an “A” or “A-“ grade. The BBB also does not like to be ignored. If they request “basic information” and you do not respond, expect to be docked at least a full grade. However, this does beg the question, why doesn’t ZeekRewards simply pay the $500 to be accredited, or at the very least, provide the BBB with the basic information they have requested? ZR does have 37 complaints within the last 36 months, 35 of which they’ve satisfactorily resolved, or attempted to resolve.46 Most (25) relate to “Problems with Product/Service”. To place their total in perspective, this would place them 17th among the top 100 MLM companies who’s BBB files I analyzed in December of 201047 and tied for 16th in my May, 2009 analysis.48 So unlike the number of complaints filed with the NC AG, this total, although not an exceptional amount, is relatively high. What’s also curious is that, according to the BBB’s Rex Venture Group profile page, “37 complaints closed with BBB in last 3 years” and “37 closed in last 12 months”. This would suggest that virtually all 37 complaints occurred within the last 12 of ZR’s 17 months of existence. What’s more, the total was 10 on April 7th, 14 as of June 8th and 29 on July 28th, just 15 days ago. Although I do believe most could be easily explained by the “growing pains” ZR has experienced over that time, they’ve been lamenting their growing pains for months now. While it’s expected the total number of complaints will rise as the total number of participants do, the rate of increase should begin to slow eventually, not expand geometrically.

44

http://mlmhelpdesk.com/breaking-zeek-rewards-news-the-facts-behind-the-nc-doj-investigation-zeekrewards-recording/ 45 http://www.marketwaveinc.com/viewalert.asp?id=148 46 http://www.bbb.org/northwestern-north-carolina/business-reviews/multi-level-selling-companies/rexventure-group-in-lexington-nc-12000422 47 http://www.marketwaveinc.com/docs/bbbdata%2812-10%29.pdf 48 http://www.marketwaveinc.com/docs/bbbdata%285-09%29.pdf

With Friends Like These... As if ZR didn’t have enough PR challenges to deal with, now they have to console their already nervous reps who have been told the FTC is going to close down all penny auctions within the next six months. This was the claim by Dr. Keith Laggos49, on a recent ZeekRewards conference call. Dr. Laggos claimed: “The FTC has been taking action against all 32 penny auction sites. They put out letters to the top big four banks asking them not to, to encourage them not to open up accounts for penny auctions. They call them illegal gambling. [The FTC] consider it illegal gambling online and they’re trying to stop it... [The FTC] sent notices to all the major [credit card] processors in the US [telling them] that they do not want them to process a penny auction site as of July 5th.” Here’s what is most bizarre about these allegations. Keith Laggos was hired by ZR as their MLM/compensation plan consultant, was still working in that capacity at the time of the call, and claimed to be earning over $40,000 per month as a ZR affiliate. Laggos fully acknowledged at the beginning of the call that the audience was “all in Zeekler”, and then proceeds to pitch Lyoness to all those on the call! Laggos asserted that: “If you put $10,000 in Zeekler [and] if nothing happens over the next year you’ll probably make 30 or 40 thousand dollars if that’s all you do... You put the same amount of money in Lyoness and not doing anything else... you could probably make a quarter-million dollars.” During the Q&A section of the call Laggos stated: “If you put someone in for $10,000 [in] bids... make sure you tell them that there is a future challenge lurking in the near future. I do [that] when I sponsor someone into Zeekler for that reason. I have business ethics.” Dr. Laggos commented on a ZR training call that “Penny Auctions are low cost, and can make or save you money”.50 While technically true, it doesn’t account, of course, for the hundreds or thousands of losers that participate in each auction where one person “made or saved” money. On the same ZR training call Laggos claimed that ZR’s second “Company of the Month” feature51 will focus on their “long term focus”, and “that’s your insurance... that you can not only make money in the short term, but in the long term... year after year after year, for the rest of your life.”52 Of course, both of these comments were made back in February, before Keith started promoting Lyoness to ZeekRewards affiliates on their calls.
49

Publisher of Network Marketing Business Journal and author of the textbook “Direct Sales: An Overview”. 50 ZR Monday Training Call; 2-6-12; 14:58 mark. 51 Vol. 27 Issue 4, April, 2012. 52 ZR Monday Training Call; 2-6-12; 7:15 mark.

When asked if he had made ZR corporate aware of the FTC’s campaign against penny auctions, and the pending FTC closure of them, Laggos replied: “I given them a dozen emails and texts about all this stuff, and we’ve had a couple of conversations about it... Paul [Burks] didn’t know, for some reason, that the FTC was putting an edict [for] shutting down the processing on July 5th until I told him.” Considering the circumstances in which this information was imparted, and that it was obviously designed to scare ZR reps into joining him in Lyoness, I’d normally take such information with a lake of salt. However, considering it’s coming from Keith Laggos I have to believe there is some truth to what he is saying. Having said that, how, when, where, and to whom he said it to I find shocking and appalling. Needless to say, Dr. Laggos is no longer a paid consultant to ZeekRewards. No word yet from ZR’s compliance department as to whether or not he violated section 38 of the ZR Policies & Procedures53: “REX Representatives shall not sell or represent non-REX products or represent marketing opportunities from other companies to other REX Representatives. Non-REX products or opportunities may not be promoted in any way at official REX events, meetings, conventions or other gatherings.”

Legal Issues
There are a number of legal issues to consider here involving a lot of legal theory and precedent. Obviously the big three are, is ZeekRewards a Ponzi scheme, a pyramid scheme (which is technically and legally different that a Ponzi) and/or an unregistered security? But there are some peripheral issues to be considered as well. Let’s take these in ascending order of importance, starting with a picked nit. Important Legal Stuff ZR includes a substantial section of text titled “Important Legal Stuff” near the bottom of their corporate site’s home page. However, it is all displayed in a barely visible dark gray font on a black background. If it’s so important, why deliberately present it in such a way as to make it virtually unreadable? Lack of Transparency Besides ZR’s penchant for not giving complete or accurate explanations for various things they do, one of the most eyebrow raising is their prohibition against “public meetings”. In a January 10th, 2012 post54 on the ZR news website they exclaim:

53 54

http://www.zeekrewards.com/policyprocedure.html http://zeekrewardsnews.com/2012/01/compliance-compliance-and-more-compliance/#comment-3351

“NO Public Meetings. If it is not a corp sponsored event…there are absolutely NO public meetings allowed. We cannot ensure compliance and so therefore we STRICTLY PROHIBIT them. Any affiliate reported as having public meetings will be permanently removed from the program.” Hmm. How is the content of the presentation relevant to the venue? You can make violative claims just as easily in the living room of your home as you can in the meeting room of a Holiday Inn. It would seem the only difference is that public meetings can be monitored more easily by the media, law enforcement, and the company, thus demands more prudence and accountability. Such an unusual policy can create the perception – to the media and law enforcement – that they have something to hide. Compensation Plan The original ZR plan was a 2x21 matrix, meaning no one can have more than two positions on their first level, and pays down 21 levels (thus each level down holding a maximum of 2, 4, 8, 16, etc.). Historically the “forced matrix” has had a horrible track record with only one company, Melaleuca, achieving any significant, long term success with it.55 The biggest knock on the matrix is that it can force you to place a good builder several levels deep in your downline if your first few levels are filled, thus potentially losing several levels of their sales volume that will be pushed beyond the bottom pay level. The matrix plan, and to a lesser extend the binary, are also vulnerable to “spill over” hype, where the claim that “your upline can build your downline for you” by having to place all their enrollees under you. Due to the SEC’s afore mentioned “Howey test”, you never want to suggest anyone can make money by simply joining, then letting someone else do all the work. Keep that in mind for later. What’s odd here is that about the time ZR hired their attorney/consultant All-Star Team they changed their plan from a 2x21 matrix to a 2x5, allegedly at the behest of Keith Laggos. According to Paul Burks56: “A 2X21 Matrix, by itself, can possibly be seen as violating Interstate lottery laws. Especially with no qualifiers in place where someone who is lucky enough to have an active upline can get enough spillover to earn thousands of dollars a month for doing nothing.” This is odd on multiple levels (slight pun intended). First, I have never seen a single example of a compensation plan paying down too many levels causing any kind of legal action by a state or federal regulator. Not one. Ever. I have seen them go after companies for hyping the spill over, but that still applies whether it pays down 21 levels or 5 levels. In fact, you can still receive “thousands of dollars a month” from a five level downline built primarily by your upline if you’re “lucky enough to have an active upline”. Yes, ZR did add personal qualifiers to prevent you from doing literally nothing, but those qualifiers could have been added to the 2x21 matrix. What’s more, ZR added two generations of matching bonuses to the new 2x5 plan creating the potential for it to actually now pay deeper than 21 levels! But this is nothing more than a curio. Let’s get to the important stuff.
55 56

Arguably Nutrition For Life could be included, which did survive from 1989 to 2003 with a matrix plan. http://zeekrewardsnews.com/2011/08/letter-from-zeek-ceo-paul-burks/

5cc Program Cancellation ZR affiliates have always been encouraged to give away the bids they purchase. When you purchase bids you convert them to points in your Retail Points Pool by selling them or giving them away. Not only is the emphasis on giving them away, they are often referred to as “sample bids”. Bids purchased at retail from Zeekler do not apply to the ZeekRewards pay plan. Affiliates must purchase such “sample bids” from ZeekRewards for the bid volume to count. So, to facilitate this massive bid give-away ZR would collect and distribute the contact information of people who requested free bids to play around with on Zeekler.com. So if you didn’t know anyone who wanted free bids, or you had given away the maximum amount to all those who did, you could tap into the 5cc Program and buy your “customers”. Then, on February 27th ZR announced that they would be discontinuing the 5cc Program. However, they would still be collecting these freebie bid seekers, only now you could get access to them for free by qualifying for them. The initial qualifier was the enrollment of two Preferred Customers (who stayed a PC and did not enroll as an Affiliate for 30 days). “We will no longer be charging 5cc subscribers for 5cc customers... The reason for that is that federal law has changed and we have been informed that we are no longer legally allowed to provide customers or leads for purchase.”57 Where to begin. Let’s start with the admittedly nit-picky fact that the “New Business Opportunity Rule” was not a “law”. A law needs to be approved by Congress. This was an FTC rule, or regulation. Yes, it essentially has the same effect as creating new law, only without an act of Congress, and that’s certainly something for constitutional scholars and libertarians to rant about, but not relevant here. Secondly, the 112 page NBOR58 not only clearly and repeatedly cited the exemption of all “multilevel marketing” operations from the Rule, they specifically declared and/or defined this exclusion 29 times!59 Yes, the FTC did narrowly define a “seller assisted” biz op as one where the seller (ZR in this case) is “providing outlets, accounts, or customers to the prospective purchaser”. I’m thinking that if someone were to bring an MLM company who is selling leads and/or customers to the attention of the FTC, they’d probably point out the twenty nine times where they said “We don’t mean MLM companies!”. Thirdly, providing customers is not illegal. In fact, there is not one word within the entire final rule that even remotely suggests illegality in the offering of leads or customers by an MLM company to its distributors. The repercussions to having the NBOR applied to an MLM company is that it would be subject to additional disclosure. Nothing more. Basically, the company would have to provide disclosures similar to those required of franchisors.

57 58 59

http://zeekrewardsnews.com/2012/02/goodbye-5cc-hello-prc/ http://www.ftc.gov/os/2008/03/R511993business.pdf http://www.marketwaveinc.com/viewalert.asp?id=98

Fourthly, the NBOR did not say a company had to “sell” leads or customers, it merely had to be “providing”, “furnishing” or “assisting” in the procurement of leads or customers. So when ZR announced, “you can receive customers though us…FOR FREE!” by qualifying for them, this didn’t even resolve the threat, albeit infinitesimal, of having the NBOR applied to them! Here’s where it get’s even weirder. In the same post on the corporate controlled ZR news site (footnote 47) the writer, identified only as “Zeek”, states: “I am attaching the law and the article written by Atty. Rick Waak to support your education and understanding on this matter.” But not only does the small section of the “law” that is quoted make no mention, even indirectly, of illegality in the providing of customers, neither does the article by attorney Richard Waak. I spoke to Mr. Waak regarding this matter and although his commentary was restricted by his attorney/client relationship with ZR, he did confirm that there was nothing illegal about providing customers, nor has he ever suggested otherwise, to anyone. When I asked if he had ever advised ZR in such a way as to cause them to believe otherwise, he said only that his article “speaks for itself”. And it does. To be clear, I have no issue with the discontinuation of the 5cc program. Even if this does create even a remote possibility that the NBOR could be invoked, the disclosures and other paperwork required are laborious and potentially costly. Again, a zero-in-a-million chance of having it apply is better than a one-in-a-million. So the advice of their attorney’s to just drop the 5cc program was sound. I just don’t get the point of doing it when you’re alternative puts you right back where you were, and I don’t understand how this could have been so badly misinterpreted as to be falsely presented as a legal requirement due to a change in the law. Keep in mind, this isn’t just a simple, one time, misunderstanding, or misstatement in this one post on their news site. Dawn Wright-Olivares reiterated during a March, 2012 interview that the 5cc program was dropped because, “We don’t want to be breaking any laws.”60 My original theory was that the fib, “We have no choice but to drop the 5cc program because the new law makes it illegal” (paraphrase) sounds a lot better than the more truthful, “We chose to drop the 5cc program because there’s a slim chance it may cause us to have to provide more disclosure”. But then, why would ZR do this and then, within the same announcement, link to a section of the NBOR and an article by one of their attorney’s that completely exposes their fib? Taxing Tax Issues Let’s say you had 5,000 points and $10,000 in your ZR account, the latter from 6,000 VIP bids you purchased and gave away (thus adding 6,000 points to your account), and $4,000 from pool points you earned, carried forward (i.e. didn’t withdraw) and converted to points, and you have withdrawn $2,000. Also, 3,000 points just got flushed, because points only stay in your account for 90 days. What amount will be added to your total income on your 1099 at the end of the year? Based on a February 20th training call I listened to (three times), it seems their resident tax expert, Howard Kaplan, isn’t even sure. Near the beginning of the call Dawn Wright-Olivares opines about the exceptionally large incomes that have been reported on affiliate’s 1099s and all
60

http://www.youtube.com/watch?v=ySL_i81uF7o

the questions they have received about how this number was determined, and how to report it. When Mr. Kaplan begins the Q&A section of the call he specifically states that the 1099 income does, in fact, include all points received, even those that are cycled out after 90 days.61 “It’s all there, you earned it, but you had to give it back”, he says, therefore it’s okay to record retired points as an expense on your return. Dawn then interjects that, “Points are something that you earn for giving away or selling bids... But points are not earning.” She goes on to clarify, “What is in your 1099 is what you earned in dollars. It has nothing to do... with the points that you earn.” So points are counted as earnings on a 1099, and expired points are a deduction in your schedule C as an expense, according to their tax expert, but their then COO62 claims points are not at all earnings, and not included in any 1099, even though you “earn” them. This exchange is then followed by Mr. Kaplan doing a complete reversal on his original response and agreeing with Dawn.63 Then, the entire exchange is transcribed on the ZR news site64 where the answer to the question “Do I claim the bonus points?” is “Yes”. I’m no tax expert, but here’s what I think they both should have said: We don’t know! To my knowledge there is no tax code, nor case precedence, as to how “points” accumulated in an MLM penny auction program, that are used as the basis for determining commissions, should be accounted for on a tax return. The answer will eventually be determined by the IRS, but until that happens it is, in my opinion, irresponsible to give a definitive answer to such questions. I do know enough about tax law to know that the IRS considers Taxable Income to be a lot more things than just cash. For example, someone who wins a new car on a game show has to include the fair market value of that car as income. Even U.S. Olympic athletes who win a gold medal have to pay taxes on the value of the metal (about $675)! The IRS publication dealing with Miscellaneous Income65 doesn’t address bid points, obviously, but does cite “Prizes and Awards.” In IRS publication 525, Taxable and Non-Taxable Income,66 the closest they come is this section regarding “Prize Points”: “If you are a salesperson and receive prize points redeemable for merchandise, that are awarded by a distributor or manufacturer to employees of dealers, you must include their fair market value in your income. The prize points are taxable in the year they are paid or made available to you, rather than in the year you redeem them for merchandise.” No, this is not precisely what ZR is doing, but considering it’s at least in the ballpark, and the IRS is moot on what ZR is doing, it at least provides us with a clue as to what their thinking might be when this is inevitably challenged. Consider this equation, with “P” representing your Points, and “SP” your “Share Percentage”. P X SP = Income
61 62 63 64 65 66

At 14:00 minute mark. Dawn Write-Olivares is now ZR’s Chief Marketing Officer. Discussed at the 35:00 minute mark. http://zeekrewardsnews.com/2012/02/questions-answers-call-schedule-this-week/ http://www.irs.gov/newsroom/article/0,,id=175963,00.html http://www.irs.gov/pub/irs-pdf/p525.pdf

If you have 1,000 Points and the Share Percentage today is 1.0 %, you earn $10.00. If the Share Percentage doubled to 2.0% tomorrow, you earn $20.00. But, what if SP stayed 1.0% and only your Points doubled (because you bought and gave away another $1,000 in sample bids)? You would now earn $20.00. In fact, not only do both values on both sides of the equation have a monetary value, the Point side is equally influential in your actual earnings. One percent of anything gives you 1% of that thing, One percent of an apple is 1% of an apple. One percent of a chicken results in 1% of a chicken. And in the above example 1% of a “point” does not result in 1% of a point, it results in 1% of one thousand dollars! How is this any different than any MLM company who pays 10% on all the BV, or “Bonus Volume” – that is, the points – in the weakest leg in a binary plan, or on a certain level in a Unilevel? Points that were generated by the purchasing or selling of product. It seems extremely clear to this logic wielding, third grade math applying, non-tax expert layman that of course the points have a monetary value – and Mr. Kaplan actually got it right the first time. So here’s the bottom line, literally: Is ZR counting the total points earned on 1099s, or only the cash amounts withdrawn? If the latter, will the IRS agree that earned points are not earned income? If it’s the former, then there’s going to be many more ZR affiliates questioning why their 1099 income was so much higher than the cash amounts they withdrew – and not claiming the full amount of their earnings on their 1040. In ZR’s defense, it appears many affiliates don’t understand that when they reinvest their earnings (i.e. don’t withdraw all or part of their Point Pool income and allow it to accumulate in their account), that this is still income. This would apply to anyone, and is not unique to ZeekRewards, Penny Auctions or MLM. If you got paid $50,000 into your ZR account and had the cash withdrawal set at 10%, thus using $45,000 of it to buy more bids and increase your point total, your 1099 is going to reflect the entire $50,000 as earned income, even though you only pulled out $5,000 in cash. ZR has went to great effort to educate their affiliates on this matter, and it is the responsibility of the affiliate to understand it. And no, this $50,000 would not be “illusionary” income, as some ZR critics have suggested. It was absolutely income, and the affiliate had the option to receive it as cash. Just because they chose not to does not negate it’s monetary value. But then, whether or not it was legally commissionable income in a multilevel pay plan, or an investment into a Ponzi or pyramid scheme, or an unregistered security... well, that’s another matter entirely. Pyramid Scheme vs. Ponzi Scheme Before we continue, it’s important to understand the distinction between these two types of schemes. A Ponzi scheme is fundamentally, mathematically, and legally separate and distinct from a Pyramid scheme, although the terms are often, and incorrectly, used interchangeably. A Ponzi scheme, named after the 1920’s era con-artist Charles Ponzi, is one where more than 100% of each dollar invested is paid out, thus requiring additional investors to pay off previous ones. For example, Charles Ponzi promised a 50% return on investment within 45 days. So if Paul gave him $1,000, he needed to come up with another $500 to cover his promised $1,500

return. How he did that was by finding Peter, another $1,000 investor, and using half of his investment to pay off the first investor (as in "Robbing Peter to pay Paul"). But now the second investor will be expecting a $1,500 payment, so Ponzi had 45 days to find another $1,000 investor. His investment, added to the remaining $500 from the previous one, allowed him to pay off the second investor. Although now, with no money left in hand, and needing two more $1,000 investors to pay off the $1,500 promised to the third investor, he had to find two more $1,000 investors. This was not a problem since the first two happy investors were giddily telling everyone they knew about the success they just had with Ponzi's amazing investment opportunity67. In a pyramid scheme the total amount promised in payments is never more than the total amount paid in. For example, in the "Airplane Game", a classic pyramid scheme from the 70s and 80s, you had to fill a 2x3 matrix with people who agreed to pay $1,500 for nothing more than the opportunity to participate (there was no product). Once this was accomplished you cashed out with $10,000, or what amounted to 47.6% of the promoter’s total $21,000 take. When each of your two first level players cashed out and received their $10,000 it required eight more participants each, or $12,000. So again, the promoter was always able to pay off those who cashed out with cash-in-hand, and keep a little for himself.68 Let's put this in network marketing pay plan terms, if only for a moment. If a plan actually paid 20% down seven levels, a 140% total pay out, that would likely be a Ponzi scheme regardless of the value of the products sold. The plan pays out more than it takes in. If a plan paid 10% down five levels, a typical 50% pay out, it cannot be a Ponzi scheme since it does not pay out more than what it takes in. No more than 50 cents is paid out of every dollar paid in. However, such a plan could still very well be considered an illegal pyramid. More on that in a moment. For a more detailed delineation, check out these articles: Ponzi vs. Pyramid http://www.MarketWaveInc.com/viewarticle.asp?id=72 Pyramid, Ponzi, and Investment Schemes http://www.MarketWaveInc.com/viewarticle.asp?id=45 Is ZeekRewards a Ponzi Scheme? No. When ZR first hit the scene so many knees jerked in unison that it practically altered the rotation of the Earth. They were offering a 125% return, or 1-2% per day, and they were paying it! Of course it had to be a Ponzi scheme, right? Wrong. In fact, this part of the ZR business model is ingenious. Start an MLM company called ZeekRewards, collect an army of people who will place literally millions of small advertisements all over the net, and buy literally millions of bids to give away, all designed to attract customers
67 68

Which Ponzi claimed was based on profits earned from international postal reply coupons. And it usually is a guy. Check out my article "Silent Sirens" at http://www.marketwaveinc.com/viewarticle.asp?id=46

to a penny auction site called Zeekler.com. While the penny auction site is selling items to hundreds of winning bidders and raking in 10 to 40 times their cost for each one, all day long, seven days a week, they can easily afford to plow “up to 50%” of Zeekler’s daily profits into ZeekRewards. Imagine if Apple Computers were to start an MLM division selling a mineral supplement made from silicon, and then applied 50% of all Apple profits into the MLM comp plan. It would probably pay out more than 100%, and it wouldn’t be a Ponzi scheme. Is ZeekRewards a Pyramid Scheme? Although it’s perfectly legal for me to say “no”, it could actually be deemed libelous if I were to definitively say “yes” (Just ask MLM über-critic Robert Fitzpatrick69). However, my own legal council has advised that I say, “In my opinion this company may be legally vulnerable, based on how they appear to me”. So... in my opinion this company may be legally vulnerable, based on how they appear to me. First of all, ZR has picked an historically unfriendly state to base their home office in. North Carolina has not been an MLM fan ever since the infamous David Crowe based American Gold Eagle in that state (1989-1991).70 Besides being one of the six states to pile on in the Equinox case, they are one of the original states to create MLM legal precedence back in the 1970s and early 80s when they prosecuted such companies as Dare to be Great71 and Challenge72. North Carolina’s AG also closed down The Tax People (aka Renaissance) in August of 2000. When it comes to identifying pyramid schemes they know what to look for, and how to find it, even when it’s well hidden. Let alone when the company is sky writing it right over the state capital building. Before I explain why ZR is, in my option, based on how they appear, legally vulnerable, it’s important here that you understand how state and federal authorities define an illegal pyramid scheme. It is not simply the absence of a product, nor even the absence of a product of genuine value. Equinox73 and Jewelway74 had perfectly fine products, yet both were declared illegal pyramid schemes by the FTC.75 Nor is it a matter of how much a participant is encouraged to purchase, or what percentage of product is sold to non-participant customers. In fact, based on myriad legal precedence and specific guidance offered by the FTC, the primary factor is the motive for buying the product. In a letter to the DSA76, in response to their request for guidance, the FTC states: “Much has been made of the personal, or internal, consumption issue in recent years. In fact, the amount of internal consumption in any multi-level compensation business does not determine whether or not the FTC will consider the plan a pyramid scheme. The
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http://www.marketwaveinc.com/viewalert.asp?id=147 American Gold Eagle was under investigation in NC when it failed due to Cease & Desist orders filed in other states. 71 http://www.mlmlaw.com/library/cases/mlm/state/ncdare.htm 72 http://www.mlmlaw.com/library/cases/mlm/state/ncchallenge.htm 73 http://www.ftc.gov/opa/2000/04/equinox.shtm 74 http://www.ftc.gov/opa/1997/11/jewel-2.shtm 75 Equinox was also charge as an illegal pyramid scheme by six states, including North Carolina. 76 http://www.marketwaveinc.com/FTC_Letter.pdf

critical question for the FTC is whether the revenues that primarily support the commissions paid to all participants are generated from purchases of goods and services that are not simply incidental to the purchase of the right to participate in a money-making venture.” They go on to specifically declare: “...a multi-level compensation system funded primarily by payments made for the right to participate in the venture is an illegal pyramid scheme.” To paraphrase the FTC, are the participants buying the products because they actually want them, and would purchase them even if there were no income opportunity, or are they buying the products primarily to meet certain quotas and qualifications in the compensation plan? North Carolina’s “Pyramid and Chain Schemes Prohibited” statute77 defines such a scheme as: “...any program utilizing a pyramid or chain process by which a participant gives a valuable consideration for the opportunity to receive compensation or things of value in return for inducing other persons to become participants in the program...” (emphasis mine) How “compensation” is defined here, and in most state’s pyramid statutes, is key. In the North Carolina code, compensation in an illegal scheme excludes: "...payment based on sales of goods or services to persons who are not participants in the scheme, and who are not purchasing in order to participate in the scheme.” In other words, if compensation is based on sales to those who are not participating in the income opportunity (i.e. retail customers), or those who are participants but are not purchasing primarily, or solely, to meet prerequisites to earn income, then this would not define an illegal pyramid scheme. So again, we must consider the motive for buying the products. In most MLM programs this is subjective. That is, subject to being a mind reader. Are all those distributors buying that $35 bottle of fruit juice because they actually want the juice, and they would still be buying it even if there were no commission to qualify for? That’s good. Or, are they buying four bottles every month because the comp plan has a $140.00 personal volume requirement to get paid? That’s bad. Did the women who purchased $5,000 of personal care and cosmetic products do so to have enough inventory to sell at all the home parties she plans to have? That’s good. Or, did she buy that much to achieve the higher paying “Executive” rank in the pay plan? That’s bad. In the case of ZeekRewards, the motive for purchasing bids is glaringly obvious. ZR leadership has clearly stated numerous times that affiliates are buying bids not to actually bid with, but to give away! They encourage affiliates to give bids away, add incentives to their pay plan to motivate it, and openly describe how the vast majority of bids are, in fact, not being used for bidding. Dawn Wright-Olivares routinely trains affiliates to use their bids as samples to “attract customers”. During a February 21st training call Dawn recited her “hamburger analogy” where
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she states, “If you bought that burger from ZeekRewards, you’re buying that burger as a sample, not to consume”78 (emphasis mine). On the same call their tax expert, Howard Kaplan, instructed affiliates to write off their bids as a business expense, “since we are using the bids to give to customers to help build our business income.”79 During an interview with Troy Dooly80 at an ANMP81 event in Las Vegas, Dawn unabashedly declared that Affiliates were not even allowed to use the sample bids they purchased to bid with!82 Paul Burks posted on the ZR news site that is was “VERY IMPORTANT” (caps are original) that affiliates understood that “using your bids as samples to attract customers creates a potential tax deductible advertising expense. I’m not a tax lawyer, so consult with your own advisor about that issue, but that could be HUGE!”83   There’s absolutely no question what the affiliate’s motive is for buying bids from ZR. It is overwhelmingly obvious they’re buying bids primarily, of not solely, to participate in the income opportunity, and would never have purchased these bids if no income opportunity existed. It is common knowledge throughout the MLM industry that paying commissions or bonuses on sales aids, training, back office access, marketing websites, or any other type of business building tools is legally taboo. All such distributor-centric items clearly have no value to nonparticipants in the income opportunity, and require the recruitment of distributors for this sales volume, thus commissions, to occur. ZR might counter that they also require the enrollment of two non-participant customers to qualify for income, but that doesn’t get them off the hook. For example, in FTC vs. FutureNet84 the FTC stated: “The compensation received by FutureNet Consultants... from purchases of goods or services by members of their downlines is not primarily based upon the sale of products or services to users who are not participants in FutureNet’s marketing plan. Although defendants purport to require the acquisition of two new customers each month as a condition for the payment of compensation, they do not ensure that products or services purchased by distributors are primarily resold to ultimate users who are not part of the marketing plan... The compensation received by Internet Consultants from their own and their downline’s recruitment of new Internet consultants is unrelated to the sale of products or services to ultimate users.” As part of the Final Judgment and Order against FutureNet, the founder of FutureNet was banned for life from participating “in any multi-level marketing program or prohibited marketing scheme within the United States”. In MLM attorney Kevin Grimes’ article “BigSmart Not So Smart”85 he discusses the legal challenges with this web mall scheme where the FTC ultimately found the commissionable sale of the internet site itself, rather than the products purchased via the site, to be a sales tool only of interest to participants in the scheme.
78 79 80 81 82 83 84 85

Stated at the 5:01 mark. This is discussed at both the 24:24 and 28:20 mark. http://www.MLMHelpDesk.com Associates of Network Marketing Professionals http://www.youtube.com/watch?v=ySL_i81uF7o   http://zeekrewardsnews.com/2011/08/letter-from-zeek-ceo-paul-burks/ http://www.mlmlaw.com/library/cases/mlm/ftc/futureco.htm http://www.mlmlaw.com/saleswatch/saleswatch10327.html

“[BigSmart] offers its distributors the opportunity to sell the company’s products... through internet malls set up by the company... commissions are based on the sale of the malls rather than the sale of goods and services that are offered through the malls. Legitimate MLMs never pay a commission on the sale of catalogs, marketing literature, starter kits, and other sales aids. Only retailable products and services are properly commissionable. Bigsmart however, generated most of its commissions from the sale of malls, which are... not retailable products since the only persons who would have any interest in purchasing a mall are those who wished to participate in the Bigsmart compensation plan. Other than the value the online mall presented by virtue of the attached income opportunity, the malls were otherwise devoid of intrinsic consumer value.” (emphasis mine) Now take a look at the contents of ZR’s three Premium subscription packages, which cost $10, $50 and $99 respectively, and which generate a monthly 20% “Retail Profit” to the affiliate who enrolls anyone who signs up for one.86

Note that each subscription includes your “own unique personal e-commerce enabled retail store with even higher profit margins and deeper discounts in your wholesale store!”, and your online store, “is fully stocked with high-value merchandise and whenever someone makes a purchase YOU earn the profit!”.87 This is essentially a web mall similar to BigSmart, and the online sales site itself is a significant part of the package that is sold by ZR – and commissioned! BigSmart charged $99.95 per month for their online store ($1,199.40 per year), and ZR’s Diamond package costs $99.00 monthly ($1,188.00 per year). The proverbial nail-in-the-coffin for ZR might very well be this section of the FTC’s Pyramid Scheme guidance document:88 “The focus of the program is recruiting new representatives and selling the products to new members as they join, not selling to customers. You’re told that the more you buy, the more you’ll earn.” Unquestionably Premium Subscriptions are only sold to “new members” of ZeekRewards, bids are only purchased to use as a marketing tool, and the more bids you buy, the more you earn.
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$1.00 from every new Gold and Diamond subscription and renewal is also applied to a pool each month and paid out to qualified Diamond/Executive Affiliates. 87 http://www.zeekrewards.com/getpaid.asp 88 http://www.ncdoj.gov/Consumer/Investment-Work-and-Money-Making-Schemes/PyramidSchemes.aspx

ZR removes all doubt about what the motive is for ZR affiliates to by bids with the statement: “**Please Note: Affiliates in your 2 x 5 forced matrix who upgrade before you do will not create commissions for you. The sooner you upgrade or qualify the less the chance of missing out on potential earnings! The purchase of a Premium subscription generates automatic rank qualifying PV.”89 (emphasis original) Affiliates in an MLM opportunity should be buying the company’s product because they actually want the product, not to qualify for more income in the pay plan. It is true that ZR affiliates can buy bids to bid with themselves, but as ZR says: “ONLY Zeek sample bids purchased in the ZeekRewards back office are eligible for the Cash Rewards program payments. Retail bids purchased on the Zeekler Penny Auction site do not qualify for Cash Rewards.”90 ZRʼs compensation plan actually creates a powerful disincentive for affiliates to buy bids from ZeekRewards to actually bid with. I have heard some ZR defenders claims ZeekRewards cannot be an illegal pyramid scheme because the purchase of bids is “optional” and they offer an option to participate for free. However, in North Carolina Court of Appeals v. Challenge, Inc.91 (section 4)92 the court states: “The defendants argue that Challenge is not an illegal pyramid scheme because participants are not ‘required’ to sell courses to themselves to advance in the organization, and an Independent Sales Agent does not pay valuable consideration for the chance to receive compensation upon the introduction of other participants. This argument is not convincing since the statute is violated if an individual ‘pays’ consideration, regardless of whether he is required to pay it. The Challenge modus operandi is such that it would be grossly impractical not to pay the consideration for the opportunity to participate. The evidence is uncontroverted that all participants in North Carolina who advanced in the program did so by purchasing the seminars for themselves in order to meet the $5,000.00 requirement to become an Independent Sales Agent.” (emphasis mine) In the FTC’s letter to the DSA, they succinctly describe their thinking as to fees paid by downline reps that would only be purchased by downline reps – such as fees paid for Premium Subscriptions, and for bids that are used strictly for business building purposes: “In a pyramid scheme, participants hope to reap financial rewards well in excess of their investment based primarily on the fees paid by members of their ‘downlines.’ Downline members pay these fees to join the scheme and meet certain prerequisites for obtaining the monetary and other rewards offered by the program.”93

89 90 91 92 93

http://www.zeekrewards.com/getpaid.asp http://vifne.zeekrewards.com/faq.asp North Carolina Court of Appeals, Edmisten v. Challenge, Inc. (1981), 54 N.C.App. 513, 284 S.E.2d 333 http://www.mlmlaw.com/library/cases/mlm/state/ncchallenge.htm http://www.marketwaveinc.com/FTC_Letter.pdf

But, Zeek has customers. Lots and lots of them! Do they? Zeekler claims that their penny auction site “has become the #2 largest trafficked Penny Auction site in the World”. Allegedly they have over 600,000 registered “customers” in 22 countries. Unique “customer traffic” has gone from 22,000 visitors in May of 2011 to 317,000 in May 2012. Their ratio of customers to affiliates, they claimed in May, was 25 to 1.94 This appears to be yet another way in which MLM companies have this masterful way of saying things that are technically true, but not entirely true. First of all, if you sign up as a customer first Zeekler will give you at least 25 free bids. Then your sponsor can give you even more free bids (up to 1,000) when you enroll as a ZR affiliate. So it’s a common practice (and openly encouraged) for those who want to enroll as affiliates to take the token step of enrolling as a customer first just to get extra free bids. Secondly, ZR counts all those who simply receive free bids as customers whether they use them or not. Therefore, the number of “customers” is being grossly inflated. In an August, 2011 post on the ZR news site95, Paul Burks states: “In the MLM industry there have been numerous court decisions addressing what is called ‘garage qualifying’ or ‘front-loading’. That means permitting affiliates to purchase large amounts of inventory that they never use or sell simply to qualify for the pay plan. It is generally understood, industry wide, that affiliates must use or sell at least 70% of their purchases before they can purchase more. Our automatic daily repurchase system, with no requirement that the bids be used or sold, was a potential problem. Some affiliates were accumulating thousands of unused bids.” But, there is still no requirement that the bids be “used or sold”! The above prohibitions against front loading and stockpiling of products requires that the distributor use the products themselves, or sell them. If literally 100% of ZeekRewards affiliates never used a single bid they purchased to actually bid with, nor did a single Preferred Customer they gave free bids to ever place a single bid, this would not effect the affiliates income by one iota! ZR affiliates might as well be purchasing those red, white and blue plastic poker chips. What’s more, ZR allows you to buy as many as ten-thousand bids, for $10,000, even if you have no intention of using a single one for its intended purpose – to bid with. When you buy thousands of dollars worth of products just so you will make more money in the comp plan, that is most certainly a front load. They are so clearly not purchasing bids to be used on a penny auction website, they are essentially purchasing points to be used in an MLM compensation plan. If there’s still any doubt left that ZeekRewards is a recruitment based income scheme, where recruiting is, in fact, required to earn income, here’s one of the most ironic statements ever written considered it’s part of a post titled “Compliance, Compliance and More Compliance…”: “Do NOT advertise that there is no Sponsoring or recruiting necessary to earn income. It is a fraudulent statement and is grounds for removal from this program.”96 That’s not a typo, folks. If you tell a prospect that they can actually make money in ZR without recruiting – it’s a terminatable offence!
94 95 96

The Network Marketing Business Journal, Vol. 27 - Issue 4 (April 2012). http://zeekrewardsnews.com/2011/08/letter-from-zeek-ceo-paul-burks/ http://zeekrewardsnews.com/2012/01/compliance-compliance-and-more-compliance/#comment-3351

Is ZeekRewards a Security? This one is not as definitive as the pyramid question (in my opinion, based on how they appear to me). However, in spite of a number of adjustments ZR has made at the advice of their legal/consulting team, I do believe this is a risk that is still in play. The primary reason I believe ZR is still legally vulnerable here, in my opinion, based on (yada, yada, yada), is the fact that no matter how much they demand that affiliates stop presenting ZR as a security, no matter how many times they tell them, in so many ways, to stop using terms like “investment”, “compound”, and “return”, no matter how much “compliance training” they now offer, no matter how strict there zero tolerance policy is towards such policy violations, no matter how many affiliates they actually terminate for violating them – they won’t stop doing it! I’ve gotten the full-on Zeek pitch three times, all since these security-lingo sanctions were enacted, and all three basically presented an opportunity for me to buy bids, do about “five minutes of no-brainer work a day”, and then kick back and watch the cash roll in. At one time (around late January) one even said there were services available where you could hire out the ad placement function, and ZR offered a deal where they would give you the customers to give the free bids to, so you had to do nothing but “buy bids and masturbate” (his words). In Zeek’s defense, they quickly put the kibosh on the “we’ll place your ad for you” schemes, and the customer acquisition deal he was referring to was the 5cc program, which is also gone. This might provide a much more valid explanation for why the 5cc program was discontinued. That is, per the Howey Test (the test you want to fail, mentioned way back on page one), you have to apply some “effort” in the creation of the income to not be a security in the eyes of the SEC. In the beginning ZR required only the effort of placing a free, online ad. Otherwise, you did just buy bids and... celebrate. Soon after they hired their compliance team they changed the plan from just having to buy bids to get pool points to giving away bids for them to convert to points. So here’s the million dollar question: Does the placement of advertisements and the giving away of your product count as “effort” as it relates to the SEC’s definition of a security? I already know Montana’s Commissioner of Securities & Insurance97 opinion. Although their Communications Director was limited in his ability to discuss any specific company, or to give legal advice, I was allowed to ask him questions based on “hypothetical” scenarios. When I presented one to him with only hamburgers being substituted for bids, and asked if the placing of a free online ad each day or the giving away of most or all of my hamburgers would constitute effort as it pertains to the Howey Test, he said he would check with their legal department and get back to me. He did. The answer was “no” and “no”. I am not a legal expert on this subject, but have researched it thoroughly and interviewed two attorneys on the matter. Here is my understanding as to why these functions will likely not be considered effort in any state, or on a federal level: The effort you apply must be effort towards the specific activities that generate the return, not effort to participate in the return. For example, let’s say I’m getting a 20% annual return on my own investment portfolio, which I manage myself. Several of my neighbors ask of they can give me some of their money and have me invest it for them. Since I’m aware of the three pronged Howey Test, and know this is
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http://sao.mt.gov/

already “an investment of consideration” and it’s into a “common enterprise” (me), I need them to apply some effort so as not to meet the definition of a security. So, I tell them all sure, I’ll invest your funds for you, as long as you all paint my garage. That would not be effort towards the creation of the return, that would essentially just be their barter fee for my services. Now, if they all got together and assisted me in my research of various public companies, and had a say in which ones we bought stock in, then that would be a legal investment club and, in most cases, need not be registered as a security.98 The managerial processes and mathematical algorithms that ZR performs to generate Point Pool share payments to affiliates does not change in relation to the ads posted or the bids given away. Let’s call these internal steps “A, B and C”. As the SEC states (see footnote 95), a security is one where the participants, “expect to make a profit from the entrepreneurial and managerial efforts of others”. In Zeek’s case the ad is utterly irrelevant in the production of Point Pool earnings. Whether your ad gets no response, or 1,000 responses, you still earn the same share of the pool. ZR is still performing steps A, B and C. Same with giving away bids. Yes, you have more points in your account for them to perform steps A, B and C on, but they are still performing steps A, B and C. ZR CEO Paul Burks stated: “Paying Daily Profit Shares based on the amount of an affiliate’s purchases creates the potential for an SEC challenge for offering a ‘passive investment’. This was especially true when a specific earning percentage (125%) was being mentioned. Even with the complete Legal Disclaimers that we were using they still felt we could have problems later.” Changing all the processes that affiliates perform does not change the processes that ZR performs. Requiring affiliates to now give away the bids they purchased, or removing the cap on the return, or eliminating terms like “investment”, “return” and “compounding” from ZR lexicon, is only changing the packaging, but not the content. ZR was generating this fixed 125% return then by performing steps A, B and C, and today they are still performing steps A, B and C. Mr. Burks goes on to say: “Eliminating the 125% cap on profit sharing also accomplishes a couple of important results. First, it prevents anyone from accusing the company of paying a fixed ‘return on investment’. That is NOT what we do, but it is important that we remove any appearance that we are doing that! Second it gives you a raise! Based on the current rate of daily rewards you should earn substantially more in daily rewards over the 90 days, based on 100% repurchase, than you have earned using the 125% cap.” Yes, it prevents anyone from accusing them of paying a “fixed” return on investment, but not from paying a return on investment. All they’ve done here is make the return a floating amount. It has not been eliminated. Next Mr. Burks borrows Ms. Wright-Olivares’ hamburger analogy:
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http://www.sec.gov/investor/pubs/invclub.htm

“If you purchase a burger at McDonalds you give the guy at the counter some money and he gives you a burger. Then, you own the burger and the store owns the money. You didn’t ‘invest’ in a burger expecting to get a return. You just bought a burger. You get to eat it or give it to someone else to eat.” Right. And that’s exactly why this is not even remotely analogous to what ZeekRewards is doing! You are not going to McDonalds to buy hundreds, thousands, or tens-of-thousands of Big Macs solely to give away, in an effort to earn more Big Macs, and a share of McDonald’s profits. To their credit, ZR did make several adjustments in an attempt to widen the berth between themselves and a security, but they never completely severed the umbilical cord. They did a decent job of improving the wrapping paper, but not the content. At least, not nearly enough. In my opinion, based on how they appear.

Conclusion
I did not begin this investigation in earnest until late May. I figured it didn’t make a lot of sense trying to evaluate the structure and condition of something who’s structure and condition was constantly evolving. It seemed the noise and dust from all the renovations began to subside around then, so I pulled out the magnifying glass and went to work. By mid-June I had gained enough knowledge to at least be conversant in Zeekeze, and to know what questions to ask, and what concerns to address. I had compiled enough questions and concerns that would only be appropriate to ask ZR management that I felt an interview was warranted. I always attempt to give the subject of my reviews an opportunity to address all such concerns before going public with them. So that’s when I began my quest for an interview, which I described back on page 3. Over about a six week period we tentatively set up four different interviews with two different ZR corporate members, with the caveat that attorney Kevin Grimes be present during the interview with Paul Burks (which I gladly agreed to). Then the Civil Investigative Demand (CID) was made public on August 6th, and used as an excuse – and in this case a good one – for why the interview had to be delayed again. But, hereʼs where I have a problem (well, another one). I have since discovered that this CID was initially issued on July 6th, exactly a month before it was made public! ZR has known they were under investigation by their stateʼs AG that whole time, including the period when I was led on about a pending “exclusive” interview with Mr. Burkes. So, on August 8th I decided I had been patient long enough and began writing this review. I still sincerely wish I could have interviewed someone from ZR before I wrote it. Maybe rhetorical questions wouldn’t have outnumbered answers. But I did try. To their credit, ZR has at least attempted to make the necessary renovations, but ZeekRewards is a fixer-upper that just can’t be fixed. To make all the necessary changes to really bring this juggernaut into compliance would require essentially ripping the guts out of the income opportunity. For example, ZR should never have allowed commissionable points to be created by merely purchasing bids, as they did in the beginning, nor should they have stopped at requiring them to be given away to create these points. Bids should not be commissionable until somebody actually uses them to bid with!

But then, this would only exacerbate the already troublesome practice of affiliates dumping several hundred dollars worth of bids into Zeekler on auction items worth a fraction of the winning bid price. And yes, that absolutely is happening. Why wouldn’t it? If you had, say, $10,000 worth of VIP bids and you needed to give them away or use them to bid with to convert them to points in the Retail Point Pool, why not just bid up a $250 Macy’s gift card to $1,000? If you give $1,000 in bids away you get nothing. At least this way you get a $250 Macy’s gift card. Or course, you would give these bids to a family member who would do your bidding. This practice is already corrupting the bidding at Zeekler, and creating “bid inflation”. Can you imagine what would happen if they made it mandatory to use your bids to bid with to convert them to points, rather than give them away? And by the way, did I mention that you can bid for cash? What are they thinking? In conclusion (finally), I want to make two things very clear. First of all, having listened to them speak for cumulatively over 10 hours, having met them personally, and trusting others opinions who have directly worked with them, I have no doubt in my mind that Paul Burks, Dawn WrightOlivares, and the rest of their corporate team, have no intentions of operating an illegal scheme, or to scam anyone. I believe they honestly believed, early on, that they were doing nothing improper. And when they were informed that perhaps they were, they have gone to great lengths to renovate and restore their unsturdy house. But when it’s a house of cards with a foundation made of quicksand, even the greatest legal, consulting and public relations minds on the planet are going to have a huge challenge saving it. Which leads me to my second final point. I have great respect for Kevin Grimes, Gerry Nehra, and Richard Waak. I have no doubt that they’ve done the best they can do with what they have to work with. Their working on behalf of ZR by no means should be considered their endorsement of it. They were hired by ZR to do a job, and they are doing their job. Even Bernard Madoff had a defense attorney. And regardless of his unceremonious firing, as an MLM consultant Keith Laggos does knows his stuff. Although I didn’t get the chance to really know him personally, Greg Caldwell seems to be a stand up guy with a good reputation, and has produced some great compliance training, especially on income disclosures. So what’s the future hold for ZeekRewards? In my opinion, based on how they appear, it won’t be a long one. The North Carolina investigation is absolutely not “routine” as some ZR supporters have suggested (a very small fraction of NC businesses get issues CIDs), and NC is very good at teasing out all the same stuff I’ve found. This may even result in a Temporary Restraining Order (TRO) which will be lifted only after ZR makes several demanded changes. Changes that, as I described above, may then cause ZR to die a natural death of attrition. Best case they’ll have to make some unpopular changes without the TRO. However, I actually think the FTC or SEC is a bigger threat considering the size and scope of ZR. But if I were a betting man (which I’m not, which is why I can live in Las Vegas), I’d put my money on ZR being taken down by ABC, CBS or NBC. ZeekRewards is a 20/20 segment just begging to happen. And then the feds will go grab their magnifying glasses. This is, after all, an election year. This is all assuming, of course, the FTC doesn’t take down the entire penny auction niche first. Which I also believe, as does Dr, Laggos, will eventually happen (but I don’t have any secret sources). In the mean time, I maintain the same recommendation I have been issuing for the past year... Don’t join ZeekRewards.

Epilogue
Yesterday morning I sat down at my desk to finish this review. I had about two or three pages of the “Is ZeekRewards a Pyramid Scheme?” section to complete, and a small section within “Taxing Tax Issue”. They were not completed only because I was waiting for the answers to three key questions. For example, I had asked three different experienced ZR reps what was the current maximum number of free bids you could give away to one person, and received three different answers (50, 500 and 1,000). So I asked a few more folks who were knowledgeable of Zeek stuff. When I checked my email to see if any had responded yet, there was one. He began by asking, “Have you seen this yet?” I have to admit to feeling a bit of ambivalence upon hearing the news that Zeeks’ home office was closed. Three months and 31 pages of typing for nothing. Couldn’t the SEC have waited just a couple more days? But this really isn’t a joking matter. This is going to create hardships for so many people, so much greater than some wasted time expended by a two-finger typer. Lives are going to be wrecked by this. I know people personally, good people, innocent people, who walked away from other well paying opportunities to pursue ZR. One was making over $50,000 a month. How do you replace that? I’ve heard so many stories of good people who resigned from other MLM programs that were paying them a living income, that they were supporting their families with. I have two friends that I personally warned not to join Zeek, that did anyway. Truthfully, I feel absolutely no gratification at all in this. I feel nothing but sadness, and anger. I’d spend yet another page describing my anger, but turns out it’s practically identical to MLM attorney Kevin Thompson’s. So here’s his: http://themlmattorney.com There’s been some online chatter over the last 24 hours about bashing Zeek affiliates for their ignorance and greed, and the inevitable vultures who are already trying to recruit them. Normally I’d have little sympathy for the victims/perpetrators of such schemes (and, by the way, exactly how many levels down from the company do you stop becoming a perpetrator and become a victim?). But in this case even if they did do a due-diligence of ZR, which we tend to chastise such victims for not doing, they likely would not have been dissuaded from participating – they would have been encouraged to! The educated, experienced and trusted sources many of them would seek such guidance from were reassuring them it was safe! The ANMP, a trade association whose focus is distributor education and protection, showcased ZeekRewards at their last event as a model of corporate compliance, and their Executive Vice President, Peter Mingles, was a staunch supporter, promoter, and participant. They were featured twice as “Company of the Month” in Network Marketing Business Journal, where they were touted as a safe, “long term” opportunity. Well respected industry authorities such as Troy Dooly was at times somewhat critical, but generally defended and supported them (and much to his credit has publicly apologized). Ted Nuyten’s popular BusinessForHome.org site lists ZeekRewards as the #3 “Top Direct Selling Company” in 2012, and Dawn Wright-Olivares as the #1 “Field Leader” (with 45% of 47,760 votes cast), along with a favorable review of ZR, and an interview with Ms. Wright-Olivares that includes not a single challenging question.99
99

http://www.businessforhome.org/2012/06/the-top-mlm-distributors-in-the-world-in-2012/

With this stable of enablers, and ZR’s promotion of their all-star legal & consulting team, Zeek affiliates and prospects didn’t stand a chance. Rather than go on for another 20 pages reciting and analyzing the SEC’s charges, I’ll just give you a link to them... http://www.sec.gov/news/press/2012/2012-160.htm ... and summarize them like this: The only thing I got wrong (maybe) was the point that ZR was not a Ponzi Scheme. According to the SEC they were. And they are a pyramid scheme – for exactly the reasons I described. And they are an unregistered security – for exactly the reasons I described. And the only reason I was off on the Ponzi issue was because I assumed Zeekler.com, like so many penny auctions, was making huge profits. As it turns out, according to the SEC, not so much. In fact, according to the SEC’s findings, 98% of ZeekRewards’ total revenue was coming from ZR affiliates, not Zeekler customers (actual bidders). The SEC claims, “of approximately 10 billion VIP bids purchased by or awarded to investors, less than onequarter of one percent have been actually used in auctions on the Zeekler.com penny auction website”. Furthermore, ZR has three billion profit points outstanding, and in July of 2012 ZR had total revenue of $162 million and total cash payouts of $160 million. The SEC also reports that Paul Burks has withdrawn about $11 million, and still has about $4 million. This might explain why he was fined $4 million. For the record, I solemnly swear that did not go back and change one word of any part of this review that I had already written before ZR was closed. If I were to do that I’d probably lighten up a little on Paul Burks for not following through on the interview. What has also been revealed since the closure was that his wife has recently suffered some serious medical issues, and he wasn’t spending a lot of time in the office the past few weeks. Otherwise, right or wrong, what I saw is what you get. And I assure you, it sometimes takes me about an afternoon to write one coherent paragraph. There’s no way I wrote 34 pages in the last 34 hours. And frankly I’m still not convinced Zeek Rewards was a Ponzi scheme, and the SEC wasn’t entirely accurate on their complaint.100 For example, they reference the 5cc program and the ad placement services as still being in play. They haven’t been for months. They also suggest that since ZR had revenues in July of $162 million and paid commissions of $160 million, if Zeeksters were to increase their average withdrawal percentage by just a tick ZR would, in fact, be paying out more than they are taking in. But, ZR would have just lowered the share percentage. At this point the feds are working from a lot more intel than I am, so who knows. Still... two out of three ain’t bad. Len Clements Founder & CEO MarketWave, Inc.
100

http://www.sec.gov/litigation/complaints/2012/comp-pr2012-160.pdf

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