Judge Denies Legal Fee ‘Shifting’ In Hudson Case

BERLIN — Opining it was not a “frivolous” suit, a federal judge this week denied an attempt by a Berlin farm family and Perdue to recover roughly $3 million in attorney fees spent on successfully defending them against an alleged Clean Water Act violation.
U.S. District Court Judge William Nickerson on Tuesday pointed out the case did not appear to be frivolous and the plaintiff might have even prevailed if it had handled the case more adeptly. From the beginning, the Waterkeeper Alliance focused on the possible discharge of pollutants from the poultry operation, while ignoring or disregarding the potential contaminants from the farm’s cattle operation.
Had the plaintiffs pursued the cattle operation issue, or perhaps more importantly did the appropriate testing and sampling to prove the contaminants came from the poultry operation, they might have prevailed in the case, according to the judge.
“As a result of the way in which the plaintiff elected to pursue this action, the plaintiff’s Clean Water Act claim was restricted to pollution allegedly caused by the poultry operation,” Nickerson’s opinion reads. “Therefore, the court entered judgment in favor of the defendants.”
In March 2010, the 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, a contract factory farm operation of about 80,000 birds. The suit was filed after sampling in ditches adjacent to the property allegedly revealed high levels of harmful fecal coliform and E. coli in concentrations that exceed state limits in violation of the Clean Water Act.
The case finally went to trial last October and concluded after 10 days of testimony during which experts on both sides testified on the merits of the case. In late December, 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.
In his opinion released on Tuesday, the courts generally do not award legal fees to plaintiffs in Clean Water Act cases, or similar cases from which a public benefit can be derived, because the prospect of millions in legal fees hanging over their heads could be a deterrent for bringing the cases to court in the first place.
“In this context, courts are concerned that plaintiffs with legitimate, but not airtight, claims might be discouraged from pursuing such claims if faced with the potential threat of fee shifting,” the opinion reads. “Under that standard, to obtain the award of fees, a prevailing defendant must show that the civil action was ‘frivolous, unreasonable or without foundation’ or that the plaintiff continued to litigate after it clearly became so.”
In the opinion released on Tuesday, Nickerson said the plaintiffs did not prevail in the original case largely because it failed to do enough testing to link the contaminants to the farm’s poultry operation.
“The court was highly critical of certain aspects of this litigation,” the opinion reads. “The court opined that it borders on indefensible that the plaintiff did not conduct the straightforward testing that would have isolated the contribution of contaminates from the poultry operation from those of the cattle operation and that it was somewhat astonishing that the plaintiff would explain that failure by suggesting that do so would have been too expensive.”
Nickerson said simply conducting the appropriate testing of samples could have swung the case in the plaintiff’s favor.
“These criticisms, however, were directed not to the merits of the plaintiff’s claim, but to the manner in which the plaintiff went about attempting to prove those merits, specifically the lack of sufficient and appropriate testing,” the opinion reads. “While criticizing these failures, the court acknowledged that is was certainly possible that some of the discharged contaminants came from the poultry operation and it is also possible that if the plaintiff had done the appropriate testing on the Hudson farm, they could have found evidence of that discharge.”
The judge offered a couple of possible reasons why the plaintiffs failed to conduct the testing.
“One is left to ponder why the plaintiff failed to conduct the testing that, at least in hindsight, seems so obviously necessary and critical to the proof of its claim,” the opinion reads. “One possibility, of course, is that the plaintiff did not sample or test because it feared that the appropriate testing would disprove its claim. Were that the case, the award of fees would be justified. Another possibility, however, is that the plaintiff simply overestimated the strength of its case and saw no need for additional testing. The court believes that this is the more likely explanation and that this kind of tactical misjudgment does not support the award of attorney fees.”
In closing, Nickerson opined the case that went on for three years at great expense and an enormous amount of time for all parties could have provided great public benefit, but was essentially all for naught in the end.
“It is most unfortunate that so much time and so may resources were expended on this action that accomplished so little,” the opinion reads. “Nonetheless, the court cannot find that the defendants’ request for the award of attorney fees satisfies the applicable standard for the award of such fees.”
While the judge denied the $3 million in legal fees sought by Perdue and the Hudsons, he did grant the poultry company some relief. Last week, the court awarded Perdue over $28,000 in fees it spent on deposing various witnesses and on certain presentations and other resources it used to defend the case.

In a statement received too late for the print edition, the Assateague Coastal Trust and Executive Director Kathy Phillips stated, “ACT respectfully disagrees that there was not a preponderance of evidence to hold Mr. Hudson and Perdue accountable for the pollution being discharged from the Hudson farm under the Clean Water Act,” said Kathy Phillips, ACT executive director and Assateague Coastkeeper. “However, we believe that the Court’s latest decision upholds the rights of citizens to bring enforcement actions to defend their waterways. The decision speaks to the integrity of our water quality monitoring program and the validity of the case.  We all have a right to clean water, and Assateague Coastal Trust will continue to defend that right,” Phillips added. “When the state and federal government won’t act to protect our waters, then local citizens must.  We must take the actions needed to stop the pollution and protect our families’ safety and the health of our waterways. That’s what this case has always been about.”