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  1. #1
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    Whats an Illegal MLM, ..A Pyramid?

    Just for clarification. I thought I'd post this as it's great, solid info from Mr Jeffrey A. Babener, Attorney at Law

    Is This a Pyramid or a Legitimate MLM?
    By Jeffrey A. Babener © 2003

    The Inevitable Question. OK, you have either been recruited for a network marketing opportunity or you are the one doing the recruiting. Inevitably, this question will come up: Is this a pyramid scheme or a legitimate business opportunity?

    This Tuna's for Selling

    Although this is a complex legal area, a simple story draws a clear line in the sand.

    Party No. 1 sells Party No. 2 a case of cans of tuna fish for $10. Party No. 2 sells the same case to No. 3 for $20 and so on until No. 9 sells the case to No. 10 for $500. No. 10 opens the case and opens one of the cans, which turns out to be rancid. He goes back to No. 9 who refers him to No. 8 and so on until No. 10 goes to No. 1 to complain.

    "I have major problem," he says.

    "So, what's your problem?" says No. 1.

    "Well," says No. 10, "the tuna is rancid, it's inedible."

    "So, what's your problem," No. 1 says again.

    No. 10 says, "Like I said, this tuna is no good."

    "Well," says No. 1, "the way I see it, you don't really have a problem."

    "What do you mean?" says No. 10, "this stuff is worthless."

    "You don't understand," said No. 1, "this tuna is for selling, it's not for eating!"

    And there lies the difference. Distributors in a network marketing program that are merely buying product to buy into the deal as opposed to an intention of really making a market for it, are really working a pyramid scheme, not a legitimate direct selling business. Remember, when you offer this opportunity to your next-door neighbor or your best friend, it's your credibility that's going to be on the line for years to come.

    What to Look for - A Checklist

    So, what do you look for with respect to legitimacy vs. pyramid? Here's a good checklist to consider.

    1. - Product and Price

    Does the company offer a high quality product for which there is a strong demand in the real world marketplace? Is the product fairly priced and priced competitively with similar products? Can the product be demonstrated, and does it stand out when you show it to friends? Is the product proprietary to the company, and available only through its distributors? (Have you ever noticed that you can't buy Avon products in stores or Shaklee vitamins at pharmacies?) Is it backed up with a customer satisfaction guarantee?
    Is post-sales service or customer assistance available? Do the people who participate in the program buy the product enthusiastically based on its own merits, even if they don't participate in the compensation program?

    2. - No Investment Requirement

    Can you participate in the company's program without having to make any investment other than purchasing a sales kit or demonstration materials sold at company cost?

    3. - Look at Purchase and Inventory Requirements

    Can you become a distributor or sales representative without having to fulfill a minimum up-front purchase or inventory requirement? [u](When you are pitched to put thousands of dollars of inventory at the very beginning, run fast in the opposite direction.)[/i] Does the company's compensation plan discourage inventory loading? Garages and backrooms filled with product serve no useful purpose to anyone.

    4. - Look at the Sales Commissions Sources

    Are sales commissions paid only on actual products or services sold through distributors in the network to the end-user or ultimate consumer? (This means that products don't end up in basements and closets. They are used, because they have genuine value.) Does the compensation plan avoid paying commissions or bonuses for the mere act of sponsoring or recruiting? (If it pays headhunting fees, it is illegal.)

    5. - Check the Buy-Back Policy

    Will the company buy back inventory and sales kit materials from distributors who cancel their participation in the program, as long as these items are in resalable condition? (This policy is required in states that have adopted multilevel distribution statutes.)

    6. - Sixth and Very Important, Look for Retail Sales

    Is there an emphasis on actual retail sales to end-consumers? Can the company demonstrate efforts to market products to the ultimate consumer? Do the company's distributors have ongoing retailing requirements to qualify for commissions? What is a "retail sale?" The industry and many MLM statutes include both sales to nonparticipants and purchases in reasonable amounts for personal use by distributors. Some regulatory groups, including the FTC, have historically rejected personal use as a legitimate retail sale. Stay tuned as this debate continues. The legislative trend is definitely supportive of the industry position.

    7. - Expect an Active and not Passive Role for Distributors

    Are distributors in the company required to actively participate in the development and management of their networks? (Many of the MLM statutes require that distributors perform bona fide, supervisory, distributing, selling, or soliciting functions in moving product to the ultimate consumer.)

    8. - Watch Out for Earnings Misrepresentations

    Do the company's literature and training materials scrupulously avoid claims of income potential that is promises of specific income levels other than demonstrations of verifiable income levels within its program? (The Federal Trade Commission, attorneys general, and postal inspectors all have their eyes on the matter of earnings representations. The acceptable approach emerging is that there should be no earnings representations unless they are based on a verifiable track record of the average earnings of distributors. For instance, a company should have statistics to show the percentage of active distributors and the average earnings of active distributors.)

    9. - Finally, Look for Good Training

    Does the company offer its independent distributors solid training opportunities in sales and recruitment? Are different levels of training offered to match the increasing levels of experience and responsibilities of distributors?
    Mr Babeners site is; www.mlmlegal.com

    If your considering Network Marketing, do your homework first! Please. There are scams, many of them, but they're pretty easy to spot after some basic research. This article might help, a little, but there's much more at MLMlegal.com

    In these turbulent times, MLM can be the light at the end of the tunnell for many. JMHO

    A leader is a person who consistently demonstrates what’s possible. A follower is a person who consistently observes leaders, then forms a small group and talks about what’s possible. Followers talk. Leaders act.

    ~ Mark Yarnell
    It starts small, only [b]you[/u decide and control how big it'll get. -KLH

    I now realize there are millions of self-made millionaires who started with nothing. They dug inside themselves to find the answers and they succeeded. There is nothing anyone else can do that I can't do.

    ~ Dean Graziosi
    They're not all scams, there are good ethical MLM companies, where one can start small, with some extra effort, some time commitment and some resources and build a business while building a life.

    Hope that helps clear it up for a few out there.

    Comments?

    Kerry Hein

  2. #2
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    Re: Whats an Illegal MLM, ..A Pyramid?

    Quote Originally Posted by ohein56 View Post
    Just for clarification. I thought I'd post this as it's great, solid info from Mr Jeffrey A. Babener, Attorney at Law



    Mr Babeners site is; www.mlmlegal.com

    If your considering Network Marketing, do your homework first! Please. There are scams, many of them, but they're pretty easy to spot after some basic research. This article might help, a little, but there's much more at MLMlegal.com

    In these turbulent times, MLM can be the light at the end of the tunnell for many. JMHO

    It starts small, only [b]you[/u decide and control how big it'll get. -KLH



    They're not all scams, there are good ethical MLM companies, where one can start small, with some extra effort, some time commitment and some resources and build a business while building a life.

    Hope that helps clear it up for a few out there.

    Comments?

    Kerry Hein
    Yes. I have a comment please.

    Wouldn't it be a stupid idea to recruit people that are selling the same thing you're selling? Doesn't that lessen the value of why you sell it? :

    I mean, the produce stand down the street isn't trying to recruit other produce stands to sell along with him is he? No, of course not. It diminishes the value of his business and reduces the traffic coming to his business.

    This is why MLM is FLAWED. Simple economics unless you're the one trying to recruit people. :rotz:

  3. #3
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    Re: Whats an Illegal MLM, ..A Pyramid?

    Quote Originally Posted by Golfer44 View Post
    Yes. I have a comment please.

    Wouldn't it be a stupid idea to recruit people that are selling the same thing you're selling? Doesn't that lessen the value of why you sell it? :

    I mean, the produce stand down the street isn't trying to recruit other produce stands to sell along with him is he? No, of course not. It diminishes the value of his business and reduces the traffic coming to his business.

    This is why MLM is FLAWED. Simple economics unless you're the one trying to recruit people. :rotz:
    Great question!

    I could see it being a problem if there were only a handfull of people, and only one MLM company. But that's not the case, is it Golfer?

    Where do you live Golfer? You know everyone there do you?

    Let's take it a step further...

    Do you know everyone there and do they all know you and they all know each others friends & family only?

    You're forgetting or not awilling to accept the reality of the world we live in, aren't you?

    I'll bet I could rattle off a list of at least 20-30 companies that've been in the marketplace for the past 5 years that you've never even heard of!

    In a vacuum or a tiny community with only a thousand people or less, they still don't know everyone everyone else knows, how can they?

    Do you know say, 10 people? I'm sure you do.

    Anyone care to give me a breakdown on '10 to the power of ten'? What's that number look like?

    Saturation is a complete myth in a consumer driven, plugged in society with over 300 million + buying everything they can get their hands on, and then some.

    Person to person marketing, word of mouth, takes into consideration the relationship that two or more people can potentially have. The possibilities of a business growing person to person is practically unlimited. Unless you can't imagine it.

    If you can't, I suggest you get out more often, Golfer.

    When are they ever going to quit buiding Golf Courses, I don't know hardly anyone who plays that dumb game!

    See what I mean?

    Great question.

    Thanks for commenting.

    Kerry

  4. #4
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    Re: Whats an Illegal MLM, ..A Pyramid?

    They refuse to see any side of economics, only the get rich quick portion. About 95% of MLMers will not be successful. Poor sheep.

  5. #5
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    Re: Whats an Illegal MLM, ..A Pyramid?

    Quote Originally Posted by Not A Sheep View Post
    They refuse to see any side of economics, only the get rich quick portion. About 95% of MLMers will not be successful. Poor sheep.
    Thanks for the post Sheep.

    Your narrow viewpoint is an interesting opinion. I'll consider it..... NAH, ....I won't!

    The problems of the world cannot possibly be solved by skeptics or cynics whose horizons are limited by obvious realities. We need men and women who can dream of things that never were.

    ~ John F. Kennedy
    Care to let us in on where you get that statistic? Or are you just repeating what someone else told you? I'll bet you're more of a sheep than you suspect.

    The power of word of mouth.

    Kerry

  6. #6
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    Re: Whats an Illegal MLM, ..A Pyramid?

    I was just by Mr Babener's site and found another good article on this subject.

    Quote Originally Posted by Jefferey Babener Atty.
    SEC: We Hate Pyramids!
    By Jeffrey A. Babener
    © July, 1993

    From time to time, rumors fly through the industry that "the sky is falling." The topic of inquiry for many distributors and companies most recently is a rumor that the SEC (Securities Exchange Commission) is about to shut down the network marketing industry on the basis that network marketing constitutes a sale of a security. The answer to this inquiry is that there is good news and there is good news.

    The good news is that the SEC itself in response to such inquiries has confirmed that no enforcement policy changes are or have been in the works as to this industry. And the good news is that the SEC treats such matters on a case-by-case basis and, where the abusive behavior of a network marketing company transforms it into a pyramid scheme, the SEC will, as it has in the past, take action to stop the company. Why? Because for the SEC, as well as all courts and state regulatory agencies, a pyramid scheme is a security.

    Where it appears that a pyramid scheme has operated as and masqueraded as a network marketing opportunity, the SEC and other agencies have taken further action. "... for the SEC ... a pyramid scheme is a security."

    In 1971, the SEC announced that in its opinion a multilevel marketing program could be transformed into a security. The 1971 SEC notice is not an indictment of the network marketing industry. Instead, it suggested that an MLM company that was more like a pyramid scheme in which the activity of a distributor was "passive" rather than "active" could trigger accusations of a passive investment scheme or security. In a pyramid scheme, rather than buying products to sell to consumers, distributors are instead buying into a position in a scheme. This is nothing new. In fact, the SEC and all state regulatory agencies have always taken the position that a pyramid scheme is by definition a security. The point is, however, that many criteria have developed over the years to differentiate a pyramid scheme from a network marketing business opportunity.

    The most recent and substantial prosecution of an MLM company by the SEC in 1992 illustrates the fact that the SEC will in fact pursue a pyramid scheme which is masquerading as a network marketing company. In that case, the SEC convinced a federal court to shut down and freeze the assets of the ILN program.

    The ILN program held itself out to the world as a consumer benefit service which also offered members and distributors opportunities for real estate investment. In reality, the program was probably driven by "the deal" and was a headhunting scheme. Potential recruits were invited to emotionally charged revival type meetings where they were encouraged to invest money in memberships and real estate, and make a fortune by getting others to do the same. Large amounts of money were invested with expectation of large returns. The federal courts accepted the SEC position that the ILN marketing program constituted an illegal pyramid scheme and the sale of securities.

    Explaining securities law in layman's terms is not such an easy task. In layman's terms, a security is best thought of as a "passive investment", i.e. an investment of money with expectation of a return that is substantially caused by someone else than the investor. For instance, when you invest money in your own small business, that it is not a passive investment because the profit comes solely from your own work. Similarly, purchase of a franchise is an active investment. But the purchase of a share of stock in IBM is a passive investment. And so also is an investment in an MLM program which involves inventory loading and headhunting where distributors expect to make their money by merely introducing new distributor investors who also invest heavily, and where little money is made by selling product or service to the actual retail customer. The courts have continually held that a pyramid scheme constitutes the illegal sale of securities. In a pyramid scheme, participants are in reality investing in the marketing plan and counting on the marketing plan to bring them a return on their investment if they can find other investors.

    In the ILN case, the court compared the ILN program to some of the abuses in famous programs, such as Dare to be Great, Koscot and "Challenge to America," all of which were accused of being pyramid schemes and thus securities.

    The ILN program had elements of today's modern MLM programs, but it had much more in common with pyramid schemes of old. It's useful to contrast the ILN program from the elements of a legitimate program. According to the SEC and the court: In a pyramid scheme, participants are in reality investing in the marketing plan and counting on the marketing plan to bring them a return on their investment if they can find other investors.

    1. - The driving force in the ILN program was to solicit recruits to invest large sums of money, and encourage them to procure others to do the same. The driving force is not a product, but instead "the deal" or business opportunity. The driving force in a legitimate MLM program is, in fact, its product.

    The underlying philosophy of the ILN program was stated time and time again at the President's night recruitment meetings: "The movement of money creates wealth. What we believe is that if you organize people and get money moving, it can actually create wealth." No such hype or "get rich quick" philosophy is involved in a legitimate program where income is earned from retailing an established product.

    2. - Earlier pyramid cases were characterized by the payment of headhunting fees for recruitment of new distributors. The ILN program was found to be such a program. The court found as a factual matter that "the intent is for a person to become a member first and then recruit new members." The court noted the oft quoted game like pitch of the ILN president, "You come in, then you bring your wife and your kids." Of what conceivable value could more than one consumer membership have to one household? Distributors in legitimate MLM programs are not paid for headhunting new recruits and are generally mandated to meet retailing requirements to qualify for bonuses.

    3. - The court observed that the ILN membership had no real independent meaning outside the context of its marketing program. In essence, the only likely reason individuals invested in ILN was because of the business opportunity. ILN had no previous track record of marketing its memberships or real estate investments without the pyramid opportunity. The entire thrust of meetings and literature was to encourage people to invest and "to move money" to make money.

    4. - Pyramid programs of the past are replete with earnings hype, check waving, and the "money humming" of the Dare to be Great type programs. The ILN program follows in that tradition. The courts have characterized its meetings as "evangelistic revival" type meetings, "part motivation and part financial evangelism." This characteristic is absent in a legitimate program.

    5. - There was no evidence of actual retailing to the end consumer nonparticipant in the ILN program. Retailing is mandated to qualify for bonuses in legitimate MLM programs.

    6. - The big money to be made in ILN was in large real estate investments. The ILN real estate investment program is an adaptation of an earlier such program, that even ILN officials admitted involved the sale of securities. The courts found the likelihood that the ILN membership marketing program and real estate investment marketing program were a "single interlocking program," and that the real estate program was "inextricably intertwined" with the membership marketing program. Inducements to participants to invest large sums of money have been a characteristic of earlier pyramid cases. Again this factor is conspicuously absent in legitimate programs. After purchase of an "at cost" sales kit, distributors are asked only to spend time, not money, to retail product or services to retail customers.

    7. - ILN distributors were encouraged to bring recruits to pep rallies where ILN officials "close the deal." This element of "common enterprise" and "efforts of others" is typical of earlier pyramid schemes. This approach is also absent in legitimate programs, again where retailing activity and supervisorial and managerial activity are prerequisites to earning income.

    So, what is the answer to the many inquiries about the SEC and the MLM industry? The answer is that from an SEC standpoint, the network marketing industry has a future. Pyramids do not. MLM companies that tolerate front-end loading, garage qualifying, buy-in qualification, or who offer programs that are driven by "the deal" rather that the product or service, are all fair game. If you are recruited for such a program -- run fast in the opposite direction.

    The answer is that from an SEC standpoint, the network marketing industry has a future.

    Pyramids do not!!

    ~~~~~~~~~~~~~~~~~~~
    Jeffrey A. Babener
    Babener & Associates
    121 SW Morrison, Suite 1020
    Portland, OR 97204 Jeffrey A. Babener, the principal attorney in the Portland, Oregon law firm of Babener & Associates, represents many of the leading direct selling companies in the United States and abroad.

    www.mlmlegal.com
    ~~~~~~~~~~~~~~~~~~~
    Just thought it would be a great addition t o the thread.

    Hope it helps someone out there get some insights as to the real potential of network marketing, and cut through some of the smoke and mirrors.

    Access to information is plentiful. It's a crime being hurt by a scam in this day and age, that can easily be avoided.

    Just do some homework before you sign up with any 'plan'.

    Kerry

  7. #7
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    Re: Whats an Illegal MLM, ..A Pyramid?

    very informative thread!?although those who's interests are get rich quick will surely ignore it!?or glean it for new angles!?what is the basic structure of society that makes pyramid schemes attractive anyway!?does anyone really enjoy digging around in things to see why they work!?as long as they produce the desired results,who cares!?if the cost of living is the predominant driving force in life!?and disposable income all the rage,who has the time/interest to ask why!?whatever satisfies that DEMAND is justified!?based on the universal law of informed consent/buyer beware!?after all,the cost of living is/can be a 'gun' to the head is it not!?and who can truly be satisfied by merely meeting that cost!?and not consider going for all you can get!?especially if solicited to do so by freinds/culture: :freak3: :judges: hehe!!.....just askn.....
    Last edited by lexx; 10-02-2008 at 10:17 AM.
    i do not endorse/recommend any advertising on scam.com associated with my name /posts or otherwise. thank you

  8. #8
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    Re: Whats an Illegal MLM, ..A Pyramid?

    Quote Originally Posted by lexx View Post
    very informative thread!?although those who's interests are get rich quick will surely ignore it!?or glean it for new angles!?what is the basic structure of society that makes pyramid schemes attractive anyway!?does anyone really enjoy digging around in things to see why they work!?as long as they produce the desired results,who cares!?if the cost of living is the predominant driving force in life!?and disposable income all the rage,who has the time/interest to ask why!?whatever satisfies that DEMAND is justified!?based on the universal law of informed consent/buyer beware!?after all,the cost of living is/can be a 'gun' to the head is it not!?and who can truly be satisfied by merely meeting that cost!?and not consider going for all you can get!?especially if solicited to do so by freinds/culture: :freak3: :judges: hehe!!.....just askn.....
    Thanks for adding your 2 cents, lexx. Excellent points.

    'Greed is good'? & 'Just Show me the money!' ....the battle crys of the American consumer sometimes it seems!

    What gripes me most is apathy. The average American is sooo willing to just resign themselves to a little tiny box. They get their 'secure' little job and that's it! That's all they'll ever be!:rotz::1crysad:

    Some timeless wisdom is in order I believe...

    You can't help someone get up a hill without getting closer to the top yourself.
    ~ H. Norman Schwarzkopf

    Everyone's life is under someone's control - it might as well be under your own so that you can direct your destiny.
    ~ Harry Tucker

    You are going to let the fear of poverty govern your life and your reward will be that you will eat, but you will not live.
    ~ George Bernard Shaw

    I now realize there are millions of self-made millionaires who started with nothing. They dug inside themselves to find the answers and they succeeded. There is nothing anyone else can do that I can't do.
    ~ Dean Graziosi
    Long live ethical MLM. The last bastion of free enterprise, for the little guy...just do some homework first.

    Thanks for the contribution, lexx.

    Kerry

  9. #9
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    Re: Whats an Illegal MLM, ..A Pyramid?

    This is from Kevin Thompson, MLM Attorney...

    As an attorney in the network marketing industry, I’m most often asked the question “What in the world is an MLM attorney?” After doing my best to answer that
    question, and oftentimes feeling like I’ve just spoken in tongues, the next question is always
    “Is this XYZ business I’m in an illegal pyramid scheme?”

    The answer is always the same.

    The analysis is always fact-driven, meaning a number of factors need to be considered. Although there is a cheat-sheet /mathematical formula available to help measure the legality of a business, it unfortunately requires sensitive data from a
    company that is never publicly available. So if you really need a concrete answer, you need to sue the company, get the data via discovery requests and depositions, hire a
    professional expert at $500 an hour to plug in the numbers, and then, $100,000 later (if you're lucky), you’ll have your answer.

    The Federal Trade Commission has recently admitted to the challenge of distinguishing between legitimate companies and pyramid schemes. They said:

    While there is a significant concern that some pyramid schemes masquerade as legitimate MLMs, assessing the incidence of such practices is difficult...While economic
    analysis can reveal if an individual company is operating legitimately or if it clearly is a pyramid scheme, it is difficult to draw an appropriate line in the gray area.


    In 2009, I published an ebook titled “Pyramid Schemes: Saving the Network Marketing Industry by defining the gray”, that calls for regulators and legislators to “define the gray”
    between legitimate MLMs and pyramid schemes masquerading as MLMs.

    But until the gray gets defined, we’ve got to follow our gut instincts.
    As always, do your homework BEFORE you invest your time effort and money.

    Kerry
    As long as it is acceptable for a person to beLIEve that he knows how god wants everyone on Earth to live, we will continue to murder one another on account of our myths. ~ Sam Harris, 'The End Of Faith'
    ~~~~~
    Christianity demands the crucifixion of the intellect.
    ~ Susan Kierkegaard

  10. #10
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    Re: Whats an Illegal MLM, ..A Pyramid?

    the irony here is you were presented with a textbook example like the tuna setup and you said it wasn't a pyramid scheme. the $10 pencils identical to the $1 pencils.... you said it was free enterprise, freedom of choice, etc.

    learn to think for yourself. when an anti-MLMer and a pro-MLMer say they same thing, you react differently. Your favorite catch phrase these days (bigot) applies so aptly, but not to the target of your words, rather the source.
    I'm not selling anything, so I don't need links in my signature to for-profit ventures. You really should question the intentions of those here that have them, as they are generally advertising, not informing.

  11. #11
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    Re: Whats an Illegal MLM, ..A Pyramid?

    Quote Originally Posted by calvinandhobbes View Post
    the irony here is you were presented with a textbook example like the tuna setup and you said it wasn't a pyramid scheme. the $10 pencils identical to the $1 pencils.... you said it was free enterprise, freedom of choice, etc.

    learn to think for yourself. when an anti-MLMer and a pro-MLMer say they same thing, you react differently. Your favorite catch phrase these days (bigot) applies so aptly, but not to the target of your words, rather the source.
    You're full of crap, Cal.

    You're grasping for straws, trying to make a point.

    Epic fail. Pointless post on your part.

    Irrelevant, no content.:judges:
    As long as it is acceptable for a person to beLIEve that he knows how god wants everyone on Earth to live, we will continue to murder one another on account of our myths. ~ Sam Harris, 'The End Of Faith'
    ~~~~~
    Christianity demands the crucifixion of the intellect.
    ~ Susan Kierkegaard

  12. #12
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    Re: Whats an Illegal MLM, ..A Pyramid?

    Quote Originally Posted by ohein56 View Post
    You're full of crap, Cal.

    You're grasping for straws, trying to make a point.

    Epic fail. Pointless post on your part.

    Irrelevant, no content.:judges:
    Deny-til-ya-die, eh? Sad. :rotz:
    I'm not selling anything, so I don't need links in my signature to for-profit ventures. You really should question the intentions of those here that have them, as they are generally advertising, not informing.

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