Perdue, Hudson back claims for fees

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Attorneys for Perdue Farms Inc. and Berlin-based farmer Alan Hudson spelled out in strongly worded filings why they should be awarded a total of $3 million in attorneys’ fees after defeating a federal Clean Water Act case by the Waterkeeper Alliance Inc. in December.

The company and its Eastern Shore contract farmer said the Waterkeeper’s allegations — that they repeatedly discharged pollutants through a point source into the Pocomoke River and the Chesapeake Bay — were groundless, and that actions of that sort should be discouraged.

The Waterkeeper Alliance “continued to litigate an action well beyond the time when the case clearly was unreasonable (assuming, but not conceding, that it was not frivolous from the start),” Michael Schatzow, James L. Shea and Maria E. Rodriguez of Venable LLP wrote for Perdue in a document filed Thursday in U.S. District Court in Baltimore.

The plaintiffs “should not be permitted to walk away having lost nothing, not even the ability to assert an identical claim against another farm, after having caused the defendants to suffer financial and emotional pain and loss,” the filing says.

The filing says Perdue has already paid its lawyers for more than 10,000 hours.

In an interview last month, Schatzow said the Salisbury-based company incurred $2.5 million in attorneys’ fees and expenses since March 1, when Senior Judge William N. Nickerson issued an order denying Perdue’s motion for summary judgment. The judge ruled in Perdue and Hudson’s favor two months ago.

Perdue and Hudson filed requests for attorneys’ fees last month, and Nickerson gave them until Thursday to file supporting memoranda.

Jane F. Barrett, who directs the University of Maryland Environmental Law Clinic and represented Waterkeeper, said in an email last month that the attorney-fee motions were not unusual or unexpected. Jeffrey Raymond, a spokesman for the University of Maryland Francis King Carey School of Law, said in an email Thursday that Waterkeeper’s response will be filed with the court later this month.

A separate filing by Hudson’s attorney, George F. Ritchie of Gordon Feinblatt LLC in Baltimore, called the case “an excruciating ordeal that has left its traumatic mark on his family despite the court’s ruling in his favor.”

The farmer is seeking upwards of $500,000 in costs and attorneys’ fees.

“This case … was the culmination of a lengthy campaign to, as this Court recognized, ‘force poultry integrators, like Perdue, to seriously alter if not abandon their operations on the Easter Shore,’” Ritchie said his filing. “The Hudsons were simply collateral damage in Plaintiff’s zealous campaign to strike at Perdue and other integrators in the poultry industry.”

He said Thursday in a statement that the Hudsons relied on the support of their neighbors, fellow Eastern Shore farmers, and sympathetic family farmers from across the country.

“It is time for the Waterkeepers to own up to their ill-conceived and harmful legal actions, and repay the farmers that supported this beleaguered farm family,” he said. “Further, repayment of legal fees is clearly permissible and allowed for under the [Clean Water Act].”

Cows, not chickens

By targeting both Perdue and Hudson Farm, the lawsuit was seen as a broader challenge to the way industry operates.

Waterkeeper Alliance had argued that Perdue should be held liable for the pollution because Perdue is “intimately involved in and controls each stage of the poultry-growing process at its contract growers, including Hudson Farm,” but Nickerson disagreed.

Attorneys for Perdue and Hudson had argued that the cows on Hudson’s farm, not chickens, were the source of the E. coli bacteria Waterkeeper found, and Nickerson concurred.

He noted that “unconfined cattle produce literally tons of manure that is left in the fields, some of which is in direct contact with runoff.”

However, under the Clean Water Act, Waterkeeper Alliance could assert “no liability in this action arising out of the cattle operation,” Nickerson wrote. In contrast, the judge said there was “no evidence of any observable discharge from chicken litter into any ditch on the Hudson Farm.”