Jessica M. Karmasek Aug. 22, 2013, 8:15pm

SAN FRANCISCO (Legal Newsline) -- A group of soy milk makers want a federal judge to toss a putative class action filed against them, arguing that a prior settlement precludes the suit.

Defendants WhiteWave Foods Company, Dean Foods Company, WWF Operating Company and Horizon Organic Dairy LLC filed their motion to dismiss in the U.S. District Court for the Northern District of California San Francisco Division Aug. 1.

"This case was over before it started," wrote Angela Agrusa, an attorney for Los Angeles law firm Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP, who is representing the companies.

"In nearly identical litigation before the U.S. District Court for the Southern District of Florida, Defendants, faced with substantially the same allegations as have been alleged in this lawsuit, reached a settlement involving a nationwide class of consumers, including plaintiffs Alex Ang and Kevin Avoy (collectively, 'Plaintiffs').

"In settling the prior case, WhiteWave Foods agreed to remove all references to evaporated cane juice ('ECJ') from all of its product labels nationwide and to refund class members between 25 percent and 100 percent of the prices they paid for products with ECJ on their labels. In return, the plaintiff class released all claims against WhiteWave Foods and all of its past and present affiliates, including defendant Dean Foods Co. ('Dean Foods')."

Ten days after the federal court in Florida preliminarily approved the class settlement, certified a class for settlement purposes and enjoined any class members from filing related lawsuits, the plaintiffs filed the instant action.

In it, they allege many of the same claims -- "with a couple new twists," Agrusa wrote -- against almost all of the same defendants.

"As such, preclusion principles prevent Plaintiffs from proceeding any further with this case," the companies argue in their motion.

"But even if they were allowed to get to the merits of their claims, these baseless allegations should be dismissed as a matter of law. This lawsuit does not allege that Plaintiffs were tricked into purchasing something other than what they received -- the harm that California's unfair competition and consumer protection statutes were meant to redress -- but rather that WhiteWave Foods' labels aren't playing by the FDA's rules.

"The main thrust of Plaintiffs' Complaint is the same as about two dozen lawsuits filed nationwide in the last 15 months, at least 17 of which are spearheaded by Plaintiffs' counsel in this action, Pierce Gore."

The plaintiffs argue in their complaint, the original filed in April, that the companies deceptively labeled sugar as evaporated cane juice.

The defendants point out that ECJ is made by extracting the juice from sugar cane and then evaporating or removing the water therefrom.

"Unlike common refined sugar, it has a lower impact on taste profiles and food coloration and cannot be made from sugar beets," Agrusa noted in the companies' motion.

"In hoping to force WhiteWave Foods to call ECJ something else, it could not be clearer that this lawsuit is an attempt to step into the shoes of the FDA and impose Plaintiffs' own misguided interpretations of labeling regulations upon the food industry."

The plaintiffs have until Sept. 3 to file a response to the defendants' motion. The defendants must submit their reply by Sept. 18.

Judge Samuel Conti has scheduled a hearing for Oct. 11.

From Legal Newsline: Reach Jessica Karmasek by email at

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