Judge Holds Off Decision On Hudson Farm Legal Expenses

BERLIN — A federal judge this week heard testimony but offered no decision in an attempt by the successful defendants in a civil suit filed against a Berlin farm family and Perdue over alleged pollution violations to recoup roughly $3 million in legal fees from their opponents.

U.S. District Court Judge William Nickerson on Wednesday heard testimony from both sides in the landmark Clean Water Act case involving Berlin’s Hudson Farm and Perdue and the Waterkeeper Alliance, an environmental advocacy group that alleged the defendants allowed runoff from the Berlin farm to enter the creeks and streams that feed the Pocomoke River and ultimately the Chesapeake Bay. Last December, the court ruled in favor of the Hudsons and Perdue after a 10-day trial and the plaintiffs are now seeking reimbursement of the roughly $3 million in legal fees and other expenses used to defend the case.

After hearing testimony on the legal fees issue on Wednesday afternoon, Nickerson did not make an immediate ruling and instead put the case in “sub curia.” Sub curia is a Latin term which literally means “under law.” A court will often hold a matter under consideration awaiting some other important step, such as the filing of a document or the writing of an opinion. There is no timetable prescribed for a ruling in the case under sub curia and the judge is likely forming a careful opinion after hearing testimony.

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, Nickerson ruled in December 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, 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 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 read. “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.

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