Judge does not award Perdue attorneys’ fees in pollution lawsuit

Listen to this article

The group that accused Perdue Farms Inc. of polluting the Chesapeake Bay will not have to pay attorneys’ fees to the poultry giant and a Berlin farmer.

Perdue and farmers Alan and Kristin Hudson were asking for $3 million in fees after a federal judge rejected allegations by the Waterkeeper Alliance Inc. that Perdue and Hudson’s farm had fouled the Pocomoke River and the Chesapeake Bay.

Judge William M. Nickerson denied Perdue and Hudson Farm’s motions for attorneys’ fees in an order filed Tuesday in U.S. District Court in Baltimore. He had heard arguments on the motion on June 26.

“We are very pleased that the court recognized that the case was neither frivolous, unreasonable nor groundless,” said Jane F. Barrett, who directs the University of Maryland’s Environmental Law Clinic and represented Waterkeeper. “We have consistently maintained that position and this decision affirms that allegations that this case is frivolous are without merit.”

The Salisbury-based poultry company had argued the lawsuit was contrived and baseless and that an award of attorneys’ fees was necessary to stop Waterkeeper from bringing frivolous actions in the future.

“The effort to recover legal fees was never about Perdue,” Perdue spokeswoman Julie DeYoung wrote in a statement Tuesday. “It was about trying to ensure that another farm family doesn’t have to go through the unfair situation the Hudson family faced, and that the Waterkeepers and other organizations like them would think twice about pursuing legal action that uses hard-working American families as pawns in their attack on modern agriculture.”

Nickerson still took issue with the case Waterkeeper presented, calling it “most unfortunate that so much time and so many resources were expended on this action that accomplished so little,”

“Nevertheless, the Court cannot find that Defendants’ request for the award of attorneys’ fees satisfies the applicable standard for the award of such fees,” the judge wrote.

While he wished the outcome were different, Hudson’s attorney, George F. Ritchie of Gordon Feinblatt LLC in Baltimore, also said he appreciated Nickerson’s comments.

“My first reaction is, once again, the judge emphasizes or re-emphasizes this is not a case that was brought responsibly or with any solid factual legal basis,” Ritchie said. “We are disappointed in the ruling.”

An attorney for Perdue, Michael Schatzow of Venable LLP in Baltimore, did not respond to requests for comment late Tuesday.

Nickerson ruled in December that Waterkeeper failed to show that Perdue and Hudson had violated the Clean Water Act by leaking phosphorous, E. coli and fecal matter from chickens into the waters near the Eastern Shore farm.

Nickerson held that Waterkeeper had failed to properly test and sample the water and there was evidence that cattle manure on the farm could have fouled the water as well. Waterkeeper did not allege cattle pollution in its lawsuit, filed in March 2010.

Nickerson held that “unconfined cattle produce literally tons of manure that is left in the fields, some of which is in direct contact with runoff,” in his December order.

In January, Perdue filed requests for attorneys’ fees, claiming it had paid its lawyers for more than 10,000 hours and spent $2.5 million in attorneys’ fees. Hudson sought an award of $500,000 in attorneys’ fees.

Waterkeeper, however, successfully argued that its case was not groundless. The suit survived pretrial motions for summary judgment, motions to dismiss and motions for judgment before the ultimate defense verdict, Waterkeeper noted.