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DISH Network 401(k) Plan Breach of Fiduciary Duties ERISA Class Action

This class action claims breach of fiduciary duties on the part of those responsible for the DISH Network Corporation 401(k) plan. It brings suit against DISH Network Corporation, its Board of Directors, its Retirement Plan Committee (the plan’s administrative committee), and members of the board and committee, alleging that they breached their fiduciary duties of loyalty and prudence.

The class for this action is all participants and beneficiaries of the DISH Network Corporation 401(k) plan, at any time between January 20, 2016 and the date of judgement in this case (or an earlier date determined by the court), including beneficiaries of deceased persons who were participants in the plan during this period.

The complaint claims that the defendants in this case are fiduciaries under the Employee Retirement Income Security Act (ERISA) and therefore owe certain duties to the plan. These include, the complaint alleges, “obligations to act for the exclusive benefit of participants, ensure that the investment options offered through the Plan are prudent and diverse, and ensure that Plan expenses are fair and reasonable.”

The DISH plan is a large one, with more than 18,000 participants and assets of around $841 million. The complaint asserts that these numbers place it in the top 0.2% of 401(k) plans by size. As a large plan, the complaint says, it has “significant bargaining power,” so that it can expect low-cost administrative and investment management services in a potentially competitive market.

The complaint alleges, however, that the defendants have failed in their duties in three ways:

  • They “failed to fully disclose the expenses and risk” of the investment options in the plan to the participants.
  • They “allowed unreasonable expenses to be charged” that participants had to pay.
  • They “selected, retained, and/or otherwise ratified high-cost and poorly-performing investments” instead of more prudent and better-performing alternatives, even though such alternatives were available.

The complaint takes issue with the choice of Fidelity Freedom Funds as target date funds for the plan. Target date funds are meant to become more conservative as participant retirement target dates approach. The complaint alleges that the Freedom Funds are actively-managed investments that are “riskier and more costly” than other choices, such as the Freedom Index Funds and others.

Page 17 of the complaint shows a chart comparing the per-participant recordkeeping and administration fees for DISH and other comparable plans. DISH’s is the highest, at $49 per participant, while the others range from $23 to $34 per participant.

The complaint also claims that the Freedom Funds are inferior investments and that other investors have lost confidence in them. Page 30 has a table comparing their returns with other, alternative investments. The complaint alleges that the 401(k) also offers “additional objectively imprudent investment options.”

Kroger Ground Coffee Number of Cups Promises California Class Action

The Kroger Company sells ground coffee in containers. The containers bear instructions for making the coffee and a representation of the approximate number of cups that can be made from the amount in the container. However, the complaint for this class action alleges that the containers “grossly overstate the number of cups of coffee that can be made from their contents.”

The class for this action is all citizens of California who bought one or more of the products in California between the earliest point permitted by the statute of limitation and the date of class certification. A Consumer Subclass has also been defined for all those in the above class who bought the product for personal, family, or household purposes.

The products at issue include the following roasts or blends in various container sizes:

  • Breakfast Blend Mild Roast
  • 100% Colombian Medium Dark Roast
  • Decaf Classic Medium Roast
  • French Roast
  • Premium Blend Medium Roast
  • Reduced Caffeine Lite Medium Roast
  • Select Brand Medium Roast
  • Special Roast Medium Roast
  • Supreme Blend Medium Roast

As an example, the complaint points to a container of Select Blend Medium Roast that shows a little box at the bottom of the front label stating that the container makes about 235 cups of coffee.

The directions on the back of the container offer two different ways of making the coffee: “Use one rounded tablespoon of coffee for each 6 fl oz. of cold water OR Use ½ cup of coffee for every 10 servings.”

According to the complaint, however, the container will not make the promised 235 cups with either of those recipes. With the single-cup method, the complaint alleges that the container makes only around 173 cups, and with the ten-cup method, it makes only around 216 cups.

The complaint calculates that a tablespoon of ground coffee weighs about 5 grams. It alleges, “Kroger, however, recommends the use of a ‘rounded tablespoon,’ which is larger than a tablespoon.” The coffee in the 30.5-ounce or 864-gram container will thus make no more than 172.8 or around 173 cups.

Page 11 of the complaint shows a chart of the various product sizes, in ounces, the number of cups the containers claim to offer, the actual maximum number of cups using one tablespoon (as opposed to one rounded tablespoon), and the difference between the two numbers.

The complaint points to a group called the Specialty Coffee Association (SCA) that has a “Golden Cup Standard.” This standard, the complaint claims, “recommends a coffee-to-water ratio of 55 grams per liter, plus or minus 10%. … Thus, the SCA recommends approximately 9 to 11 grams (roughly two tablespoons) of coffee for every six fluid ounce cup that is brewed.” That is roughly double the recommended amount of coffee per cup called for on the back of the can, meaning that each cup is relatively weak.

The complaint alleges that the number-of-cups promise on the containers is deceptive.

Snapple Diet Peach Tea Powdered Drink Mix Contains Artificial Flavor Class Action

This class action brings suit against Dyla, LLC for its Snapple Diet Peach Tea Powdered Drink Mix. Although the company markets the tea powder as being made with “Naturally Flavored With Other Natural Flavors,” the complaint alleges that it relies on a non-natural ingredient, dl-malic acid, for some of its flavoring.

Two classes have been defined for this action:

  • The Illinois Class is all persons in Illinois who bought the product during the applicable statutes of limitations.
  • The Consumer Fraud Multi-State Class is all persons in Michigan, Texas, Arkansas, Delaware, Wyoming, Virginia, and Oklahoma who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows an image of the product showing the statement, “Naturally Flavored with Other Natural Flavors,” an image of a peach wedge on top of two green tea leaves, a rectangle promising, “Made from green & black Tea,” and the words, “Peachy Keen.” The package has a peach color scheme.

The complaint claims that more than seven out of ten consumers avoid artificial flavorings and believe they are associated with negative health effects. It also says, “According to Forbes, 88% of consumers consider foods without artificial flavors to be more natural and/or health[ier] than foods with artificial flavors, and they would pay more for such foods.”

Under both state and federal regulations, foods must disclose the source of their flavors. If a food’s main source of flavor is artificial flavor, the complaint alleges, the front label must disclose that.

Page 3 of the complaint shows an image of the ingredient label for the product. While it does list “Natural Flavor,” directly after that, it lists “Malic Acid.”

According to the complaint, malic acid has two different isomers, or arrangements of atoms. L-malic acid is a natural ingredient found in fruit that provides a tart flavor. D-malic acid is not a natural substance. Because the two types are different, the complaint says, the company is required to tell consumers whether it used the artificial one or the natural one.

The complaint alleges that “DL-malic acid is the racemic mix of D isomer and L isomer” and that it “is a synthetic chemical manufactured from petroleum.” The complaint asserts, “Laboratory analysis concluded the Product contains dl-malic acid.”

According to the complaint, the company could have flavored the product with natural L-malic acid, or it could have used more natural peach flavor. “However,” the complaint speculates, the company “used artificial dl-malic acid because it was lower-priced and/or more accurately resembled natural peach flavor.”

The complaint alleges, “The omission of any reference to artificial flavor on the front label and ingredient list, the statement, “Natural Flavor With Other Natural Flavors,” and the picture of a peach slice above a tea leaf[] cause consumers … to expect only natural flavors.”

The presence of the artificial flavor, the complaint claims, means that the value of the product was less than it was represented to be.

Country Crock Misleading “Plant Butter Made with Olive Oil” Class Action

Upfield US, Inc. makes a vegetable oil spread under its Country Crock brand that is labeled as “Plant Butter Made with Olive Oil.” The complaint alleges that the product’s name and marketing is misleading in a number of ways, particularly because it contains more of three other kinds of oils than it does olive oil.

Two classes have been defined for this action:

  • The New York Class is all persons in New York who bought the product during the applicable statutes of limitations.
  • The Consumer Fraud Multi-State Class is all persons in Michigan, Montana, Rhode Island, Georgia, North Dakota, Virginia, South Dakota, and Oklahoma who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows a container of the product, with “Country Crock” and “Plant Butter” prominently on the front, and below this the claim, “Made with Olive Oil.” The container is designed with an olive-green color scheme and an image of three olives.

In recent years, the complaint says, the per-person consumption of butter has been rising, while the consumption of margarine has been falling. The complaint alleges, “This change is partly attributable to consumers becoming aware of margarine’s harmful trans fats, made from hydrogenated and interesterified vegetable oils, in the presence of nickel and cadmium.”

An article from the research firm Mintel is cited in the complaint, discussing this switch, and the complaint claims, “how margarine companies can incorporate alternative oils like olive oil to meet consumer demand.”

“Consumers may erroneously expect that ‘plant based’ means the Product contains only natural ingredients when this would be false,” the complaint claims, “because the mix of vegetable oils are subject to chemical reactions in the presence of chemical catalysts.” Americans associate plant-based foods with health benefits, says the complaint, and with less impact on the environment.

The complaint says that Scott Rankin, chair of the food science department at the University of Wisconsin, Madison, claims that “margarine and the Product are indistinguishable, but for the presence of olive oil in the latter, and slight differences in fat and calories. … Professor Rankin stated that the Product is twice as calorie-dense as its less trendy cousin, margarine, due to an increased concentration of saturated fat.”

Page 3 of the complaint reproduces the product’s ingredient panel, which begins, “Blend of Plant-Based Oils (Palm Kernel, Canola, Palm Fruit, and Olive Oil)…

This indicates, the complaint claims, that the product contains more palm kernel oil, canola oil, and palm fruit oil than it does olive oil. The complaint alleges, “That the Product’s ‘blend of plant-based oils’ contains olive oil in the smallest amount misleads consumers, who expect the statement, ‘Made with Olive Oil,’ to mean it contains a relatively significant and/or predominant amount of this valued ingredient.”

According to the complaint, olive oil has nutritional and health benefits, including antioxidants, polyphenols, heart-healthy fats, and anti-inflammatory properties, among other things.

Infinity Insurance Insufficient Total Loss Payouts California Class Action

Infinity Insurance Company offers auto insurance policies. The complaint for this class action alleges that, when a vehicle is totaled, Infinity does not include all required costs in its calculation of the actual cash value (ACV). It claims that Infinity either does not pay or underpays California state sales tax and state-mandated regulatory fees.

The class for this action is all individual insured under a California policy issued by Infinity Insurance company for private-passenger auto physical damage coverage with comprehensive or collision coverage, who made a first-party claim, whose claim was adjusted as a total loss under comprehensive or collision coverage, where the total loss payment did not include registration fees imposed by California, between January 14, 2018 and the date of any certification order in this case.

The complaint contends that under the standard policy form language, “Infinity is [] obligated to pay the full title, registration and regulatory fees imposed by the State of California on the purchase and registration of automobiles in the state…”

California insurers may pay a cash settlement for vehicles in the event of a total loss. The complaint quotes state regulations as saying, “This cash settlement amount shall include all applicable taxes and one-time fees incident to transfer of evidence of ownership of a comparable automobile. This amount shall also include the license fee and other annual fees to be computed based upon the remaining term of the loss vehicle’s current registration.”

Vehicles must be titled and registered for use in California. The complaint alleges, “California imposes fees on such transactions, including, but not limited to, a title transfer fee of $15.00, a registration fee of $60.00, county fees of up to $19.00, a California Highway Patrol (‘CHP’) fee of $26.00, a Transportation Improvement Fee (‘TIF’) of $25.00-$175.00, and a Vehicle License Fee (‘VLF’) of up to 0.65% of the adjusted vehicle value.”

In this case, plaintiff Kevin Carr insured his 2001 Lexus RX300 with Infinity. On or around November 12, 2018, he was in an accident while driving the vehicle. The vehicle was declared a total loss.

Infinity then used a third-party vendor, CCC to come up with an adjusted vehicle value or $3,824. The complaint claims that Infinity “added a Title Transfer fee of $15.00, then subtracted the deductible of $1,000.00, and then subtracted a miscellaneous amount of $1,075.00 for a total settlement payment of $2,146.40[.]” The Loss Settlement Letter detailing these amounts was attached to the complaint when it was filed as Exhibit C.

The complaint alleges, “Infinity did not include registration fees in making its (purported) ACV payment to [Carr], thereby breaching the terms of [Carr’s] Policy.”

Experian Summary of Rights Omits Information About State Rights FCRA Class Action

Experian Information Solutions, Inc. is one of the Big Three consumer reporting agencies that maintains information and compiles reports on consumers, for the use of credit card companies, other lenders, employers, and landlords. However, the complaint for this class action alleges that Experian does not provide to consumers with all the disclosures about consumer rights required by the Fair Credit Reporting Act (FCRA) and its implementing regulations, Regulation V.

The class for this action is all similarly-situated consumers who received a consumer report or file disclosure from Experian with a Summary of Rights section that was identical or substantially similar to the Summary of Rights section in Exhibit A to this complaint.

Unfortunately, the complaint says that errors in consumer reporting are “not rare” and consumers must know their rights about the information being provided.

The Consumer Financial Protection Bureau (CFPB) has provided details on the notice of consumer rights that consumer reporting agencies (CRAs) must provide along with consumer reports. It even offers a form notice that CRAs may use for this purpose. The complaint alleges, “Inexplicably, Experian chose not only to deviate from the form notice but to excise certain information that the FCRA expressly requires from the notice it provided entirely.”

In this case, on or before June 2, 2020, plaintiff Charlotte Muha asked Experian for a copy of her consumer report or file disclosure. Experian provided it. A copy was attached to the complaint for this class action when it was filed as Exhibit A.

The complaint alleges, “The ‘Summary of Rights’ portion of the consumer report or filed disclosure in Exhibit A is inconsistent with [the law] and Appendix K of Regulation V because it does not include ‘a statement that the consumer may have additional rights under State law, and that the consumer may wish to contact a State or local consumer protection agency or a State attorney general (or the equivalent thereof) to learn of those rights.”

According to the complaint, the Summary of Rights in Exhibit A omits the following statement, from Regulation V: “States may enforce the FCRA, and many states have their own consumer reporting laws. In some cases, you may have more rights under state law. For more information, contact your state or local consumer protection agency or your state Attorney General. For information about your federal rights, contact:…”

The complaint alleges that Experian could simply have used the standard form provided by Regulation V, but that it consciously chose to omit this information to make it less likely that consumers would contact state or local consumer protection agencies and attorney generals.

Market Pantry Fruit Punch Liquid Water Enhancer Artificial Flavoring Class Action

Target Corporation offers a “Liquid Water Enhancer” under its Market Pantry brand that purports to be made with natural flavors. However, the complaint for this class action alleges that it contains artificial flavors without properly noting that on the container.

Two classes have been defined for this action:

  • The Illinois Class is all persons in Illinois who bought the product during the applicable statutes of limitations.
  • The Consumer Fraud Multi-State Class is all persons in Michigan, Texas, Arkansas, Delaware, Wyoming, Virginia, and Oklahoma who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows the red product bottle containing the drink concentrate. Page 2 shows a close-up of part of the front label, reading, “Fruit Punch” and “Natural Flavor with Other Natural Flavors” on a pink and red background that suggests the color of fruit punch.

The complaint claims that more than seven out of ten consumers avoid artificial flavorings and believe they are associated with negative health effects. It also says, “According to Forbes, 88% of consumers consider foods without artificial flavors to be more natural and/or health[ier] than foods with artificial flavors, and they would pay more for such foods.”

Under both state and federal regulations, foods must disclose the source of their flavors.

On page 3, the complaint reproduces the ingredient label for the product. While it does list “Natural Flavors” as its fourth ingredient, it lists “Malic Acid” as its second ingredient.

According to the complaint, there are two isomers of malic acid. L-malic acid is a natural ingredient found in fruit that provides a tart flavor. D-malic acid is not a natural substance. Because there are two different types of malic acid, the complaint says, the company is required to tell consumers whether it used the artificial one or the natural one.

The complaint alleges that “DL-malic acid is the racemic mix of D isomer and L isomer” and that it “is a synthetic chemical manufactured from petroleum.” The complaint asserts, “Laboratory analysis concluded the Product contains dl-malic acid.”

According to the complaint, the company could have flavored the product with L-malic acid, or it could have used more natural fruit flavors. “However,” the complaint speculates, the company “used artificial dl-malic acid because it was lower-priced and/or more accurately resembled natural fruit flavor in fruit punch.”

Because the product had no reference to “Artificial Flavor” either on its front or in the ingredient list, the complaint says, consumers expect it to be flavored only with natural ingredients.

The presence of the artificial flavor, the complaint claims, means that “[t]he value of the Product … was materially less than its value as represented…”

Mio Peach Mango Liquid Drink Concentrate Artificial Flavoring Class Action

Kraft Heinz Foods Company makes a Mio peach mango liquid drink flavoring concentrate. The complaint alleges that the concentrate purports to be made with natural flavors but contains artificial flavors without properly noting that on the container.

Two classes have been defined for this action:

  • The New York Class is all persons in New York who bought the product during the applicable statutes of limitations.
  • The Consumer Fraud Multi-State Class is all persons in Virginia and Oklahoma who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows the Mio bottle containing the concentrate. Page 2 shows a close-up of part of the front label, reading, “Peach Mango” and “Natural Flavor with Other Natural Flavor” on an orange background that suggests the colors of peaches and mangoes.

The complaint alleges that more than seven out of ten consumers avoid artificial flavorings and believe they are associated with detrimental health effects. It also says, “According to Forbes, 88% of consumers consider foods without artificial flavors to be more natural and/or health[ier] than foods with artificial flavors, and they would pay more for such foods.”

Under both state and federal regulations, foods must disclose how they are flavored on their front labels.

Because the front label of the product claims to get its flavors from “Natural Flavor with Other Natural Flavor,” the complaint alleges, “consumers expect only natural flavors.”

However, on page 3, the complaint reproduces the ingredient label for the product. While it does list “Natural Flavor” as its fourth ingredient, it also lists Malic Acid” as its second ingredient.

According to the complaint, there are two isomers of malic acid. L-malic acid is a natural ingredient found in fruit that provides a tart flavor. D-malic acid is not a natural substance. Because there are two different types of malic acid, the complaint says, the company is required to tell consumers whether it used the artificial one or the natural one.

The complaint alleges that “DL-malic acid is the racemic mix of D isomer and L isomer” and that it “is a synthetic chemical manufactured from petroleum.” The complaint asserts, “Laboratory analysis concluded the Product contains dl-malic acid.”

According to the complaint, the company could have flavored the product with L-malic acid, or it could have used more peach or mango flavor. “However,” the complaint speculates, the company “used artificial dl-malic acid because it was lower-priced and/or more accurately resembled natural peach and natural mango flavor.”

The company therefore should have put the words “Artificially Flavored” or “Artificial Flavor” on the product’s front and other labels, the complaint contends. The label must disclose the artificial flavoring, the complaint says, because “the Product contains added flavoring ingredients that simulate and reinforce the characterizing peach and mango flavor[s]…”

The presence of the artificial flavor, the complaint claims, means that “[t]he value of the Product … was materially less than its value as represented…”

ZMB’s Xanrelax and Addall Mislabeling and Illegal Ingredients Class Action

This class action alleges that ZMB Enterprises, LLC is selling products that are not legal to sell. The complaint alleges that ZMB makes its Xanrelax and Addall products with illegal ingredients, and markets them with misleading names designed to remind consumers of the popular products Xanax and Adderall.

The National Class for this action is all persons in the US who bought any of the products, for personal use and not for resale, within the US, during the fullest period allowed by law. An Illinois State Subclass has been proposed for persons in the above class in Illinois who bought the products in Illinois.

According to the complaint, the Xanrelax product contains an illegal dietary ingredient, kratom; and the Addall product contains the illegal dietary ingredient beta-phenyl-GABA, also known as phenibut. The complaint therefore alleges that the products are mislabeled as dietary supplements.

The complaint alleges, “The [Food and Drug Administration (FDA) recently has seized dietary supplements and bulk dietary ingredients that contain [k]ratom.” The complaint quotes the FDA as saying, “There is substantial concern regarding the safety of kratom, the risk it may pose to public health and its potential for abuse… Further, there are currently no FDA-approved uses for kratom.”

The complaint also alleges, “The FDA recently stated that products that contain [p]enibut are not legal dietary supplements.” It quotes the FDA as saying, “The FDA also issued 3 warning letters to companies whose products are marketed as dietary supplements and labeled to contain phenibut. … Phenibut does not meet the definition of a dietary ingredient under the Federal Food, Drug, and Cosmetic Act (FD&C Act). Products labeled as dietary supplements that list phenibut as a dietary ingredient are misbranded.

“The labels of the products are therefore misleading because the Products are not dietary supplements[,]” the complaint claims. It adds, “The introduction of adulterated and misbranded food into interstate commerce is prohibited under the FDCA and the parallel state statute cited in this Complaint.”

In addition, dietary supplements should not bear “disease claims.”

The complaint alleges that ZMB “deliberately” markets Xanrelax and Addall with names that consumers are likely to associate with Xanax and Adderall, respectively. The complaint alleges this “is intended to induce consumers to believe” that the ZMB products “offer similar medicinal benefits” to the original prescription-drug products.

ZMB claims its Xanrelax and RelaxAid products help consumers “Chill the Day Away,” “deliver a euphoric relaxation,” and “calms and elevates mood.” It even promises that Xanrelax “is specifically formulated to help promote calm and relaxation similar to a feeling of alprazolam (‘generic Xanax’)[.]”

Labels for the Addall products claim it provides “Improved Concentration” and that it helps “Increase Mental Focus” and “Increase Energy[.]” The complaint alleges that these and other statements on the label and the company’s website “imply that the Addall Products cure, prevent, or treat … attention deficit hyperactivity disorder (‘ADHD’).”

Wells Fargo Reports Mortgages as Being in Forbearance California Class Action

Lenders, landlords, and employers all use credit reports to screen applicants, to determine whether they want to enter into relationships with them. It is therefore important that credit reports be accurate. The complaint for this class action alleges that Wells Fargo Bank, NA furnishes false information to credit reporting agencies, claiming that certain mortgage accounts are in deferment or forbearance when the homeowners involved never requested or agreed to that arrangement. The complaint claims the bank has violated the California Consumer Credit Reporting Agencies Act (CCRAA).

Two classes have been defined for this action:

  • Class A is all residents of California who, between September 18, 2014 and September 18, 2021, suffered inaccurate reporting in which Wells falsely reported a home mortgage was in forbearance without the consumers’ knowledge and consent.
  • Class B is all residents of California who, between September 18, 2014 and September 18, 2021, suffered inaccurate reporting in which Wells falsely reported that no payments had been made on their accounts when the payments had been made in full and on time for the preceding three months.

The plaintiff in this case, Patrick Healy, owns a home in San Marcos, California under a mortgage issued by or serviced by Wells Fargo.

Borrowers like Healy make monthly mortgage payments to Wells, which is responsible for applying the payments to their mortgage loans on their behalf. Wells also furnishes information to credit reporting agencies about the current status of their mortgage accounts.

The complaint alleges that “in June of 2020, [Healy] discovered that Wells had been persistently reporting the false information that his mortgage loan account is in forbearance and that no payment had been made at all on the account for months.” The complaint alleges that this is not true, and that Healy has made his payments in full and on time.

Creditors therefore believe that the consumers are in default. The complaint alleges, “At a minimum, when a borrower’s principal residence is reported as being in forbearance status…, lenders and other consumers of credit[-]related information consider this a seriously delinquent status and will perceive the consumer’s financial circumstances as dire and not creditworthy.”

The complaint claims that Healy was refused a home mortgage refinancing loan because the account was reported as being in forbearance or deferment with no recent payments made.

The complaint alleges, “Upon information and belief, Wells unilaterally placed millions of home mortgage loan accounts in forbearance without the consumers’ knowledge or consent simply in order to avoid its own liability from a potential housing market crash that might arise from the Covid-19 crises.” The complaint claims that Wells placed borrowers in at least fourteen states in forbearances that they did not want or ask for.

The complaint claims that Wells has already been sued for this practice in Virginia.