Waterkeeper Motion Maintains Hudson Farm Case ‘Not Frivolous’

BERLIN — The unsuccessful plaintiffs in a civil suit against a Berlin farm family and Perdue this week filed a motion asking the court not to award the defendants a combined $3 million being sought in legal fees and other costs associated with litigating the case.

In March 2010, the New York-based Waterkeeper Alliance, along with the Assateague Coastal Trust and the Assateague Coastkeeper, filed suit in U.S. District Court against Perdue and Berlin’s Hudson Farm after sampling in ditches adjacent to the property revealed high levels of harmful fecal coliform and E. coli in concentrations that violated the Clean Water Act.

After a 10-day trial in October, U.S. District Court Judge William Nickerson ruled in favor of the defendants Perdue and Alan Hudson, opining the Waterkeeper Alliance was not successful in proving a Clean Water Act violation. Buoyed by their victory in October, Perdue and the Hudsons in January filed a motion to recover a combined $3 million in legal fees and other costs associated with successfully defending the landmark case, asserting the plaintiffs continued to push forward with the litigation even after it appeared its position was untenable.

However, the Waterkeeper Alliance this week filed its own motion asking the court to deny the defendants’ request for the recovery of legal fees, pointing out that just because it ultimately lost the case did not prove its pursuit was somehow frivolous and, therefore, subject to an award of legal fees.

“The plaintiff’s case, although ultimately unsuccessful, was grounded in admissible evidence and expert testimony and was not frivolous, unreasonable or groundless,” the motion reads. “Contrary to the defendants’ claims, the plaintiff initiated this litigation based on accurate findings of high levels of pollutants leaving the Hudson property and sought relief to stop the runoff of those pollutants.”

In its motion to recover legal fees and other costs, Perdue argued the Waterkeeper Alliance’s relentless attack on the poultry giant and the Berlin farm continued even after it became apparent the plaintiff had failed to prove a Clean Water Act violation.

“Based on their zealous determination to proceed to trial and the court’s characterization of their actions as ‘not responsible’ and that Perdue should be ‘commended, not condemned,’ we are fully justified in in asking the court to grant us reimbursement for the cost of defending ourselves,” said Perdue Farms General Counsel Herb Frerichs.

However, in its motion filed this week seeking a denial of the request for reimbursement of legal fees, the Waterkeeper Alliance argued that just because the judge did not rule in its favor did not mean the case was groundless.

“The court, however, concluded that the plaintiff failed to prove by a preponderance of the evidence that the pollutants had come from the chicken operation,” the motion reads. “The court was not persuaded by the plaintiff’s evidence and expert testimony regarding the chicken houses’ contribution of pollutants to the drainage ditches, finding that additional testing should have occurred.

The Waterkeeper Alliance’s motion to dismiss the reimbursement claim pointed out there were several points during the process when the judge could have dismissed the case and yet allowed it to proceed to trial.

“The court should reject the defendants’ fee petitions because the plaintiff’s case was not frivolous, groundless or unreasonable,” the motion to dismiss reads. “The plaintiff was unsuccessful at trial, but its case was supported by credible expert testimony and fact evidence and survived motions to dismiss, motions for summary judgment and motions for judgment. Moreover, awarding fees to the defendants would be inconsistent with the purposes of the Clean Water Act.”

One of the tenets of the Clean Water Act is to encourage private citizens and advocacy groups to challenge perceived pollution infractions. The motion filed this week argues an award of legal fees could discourage future efforts.

“This court should hold that, absent a showing that the plaintiff’s case was frivolous or unreasonable, defendants are not entitled to attorney’s fees,” the motion reads. “Applying a lesser standard would chill the good faith efforts of citizen groups to effectuate the policy goals of the Clean Water Act.”

Essentially, the motion to deny an award of legal fees suggests just because the Waterkeeper Alliance lost the case does not mean its case was groundless and unreasonable.

“The plaintiff presented evidence at trial from which the court should have concluded the poultry operation was the source of the pollutants,” the motion reads. “Trials do not always turn out the way litigants expect them to, and the fact that one party loses does not mean that the position it took was frivolous. ….”

3 comments on “Waterkeeper Motion Maintains Hudson Farm Case ‘Not Frivolous’

  1. There needs to be one rule enacted in this Country, and it would solve most of the frivolous lawsuits like this one. It is–if I sue you, and I lose, I pay ALL your legal fees and out of pocket expenses.

    This one simple thing will make people think twice before suing someone or some company.

    Perdue and the Hudsons should have all their expenses reimbursed.

  2. The do gooders said, ““Applying a lesser standard would chill the good faith efforts of citizen groups to effectuate the policy goals of the Clean Water Act.”

    Which is precisely why the Court should award the attorney’s fees to Purdue and the Hudsons, to discourage other busybodies from filing suits based on lies, bad science, and poor investigation, solely to intimidate a person and/or business.precisely – ESPECIALLY when the Do Gooders were represented for FREE and incurred little of no cost to themselves. If they had to pay fro legal representation they might have dropped their vindictive suit, but since they had free lawyers, “what the hay”, why not pursue it to the bitter end and make the Defendants pay to defend themselves.

  3. I agree with Brian Dayton above. I would add that the lawyers that file the losing suit would have to pay the same share of the fees that they were going to get if the won the case.

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