Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Transcription

1 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND WATERKEEPER ALLIANCE, INC. Plaintiff, Civil Action No. WMN v. ALAN AND KRISTIN HUDSON FARM, et al. Defendants DEFENDANT PERDUE FARMS, INC. S MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS FEES AND OTHER LITIGATION EXPENSES

2 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 2 of 31 TABLE OF CONTENTS Page I. The Clean Water Act authorizes the award of legal fees to any prevailing or substantially prevailing party II. Perdue is entitled to recover its legal fees even under a stricter standard III. Perdue seeks reimbursement of all litigation expenses permitted by the local Guidelines A. The attorneys fees for which Perdue seeks reimbursement were reasonable B. Perdue incurred reasonable expenses in connection with its expert, Charles Hagedorn C. Perdue incurred other reasonable expenses in connection with its legal representation Conclusion i

3 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 3 of 31 TABLE OF AUTHORITIES Cases American Family Life Assurance Co. of Columbus v. Teasdale, 564 F. Supp (W.D. Mo. 1983), aff d, 733 F.2d 559 (8th Cir. 1984) Arnold v. Burger King Corp., 719 F.2d 63 (4th Cir. 1983)... 11, 22 Atlantic States Legal Found. v. Onondaga Dep t of Drainage, 899 F. Supp. 84 (N.D.N.Y. 1995)... 7 Basinger v. Hancock, Daniel, Johnson & Nagle, P.C., No-10-cv-0666 (LMB/TCB), 2010 U.S. Dist. LEXIS (E.D. Va. 2010) Bass v. E. I. DuPont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003) Bernstein by Bernstein v. Menard, 728 F.2d 252 (4th Cir. 1984) Blue v. U.S. Dept. of the Army, 914 F.2d 525 (4th Cir. 1990) Carrion v. Yeshiva Univ., 535 F.2d 722 (2nd Cir. 1976) Chambers v. U.S. Dept. of Army, 499 U.S. 959 (1991) Christiansburg Garment Co. v. Equal Employment Opportunity Comm n, 434 U.S. 412 (1978)... passim City of Burlington v. Dague, 505 U.S. 557 (1992)... 7 Coleman v. General Motors Corp., 667 F.2d 704 (8th Cir. 1981) Coles v. Wonder, 283 F.3d 798 (6th Cir. 2002) Coon v. Willet Dairy, 5:02-CV-1195 FJS/GJD, 5:04-CV-917 FJS/GJD, 2009 WL (N.D.N.Y. Mar. 31, 2009) Davis v. Target Stores, 87 F. Supp. 2d 492 (D. Md. 2000) Furgess v. United Parcel Service, Inc., No CMC-JRM, 2007 U.S. Dist LEXIS (D.S.C. 2007) Hicks v. Southern Maryland Health Systems Agency, 805 F.2d 1165 (4th Cir. 1986)... 21, 23 Hoover v. Armco, Inc., 915 F.2d 355 (8th Cir. 1990) Hutchinson v. Staton, 994 F.2d 1076 (4th Cir. 1993) Introcaso v. Cunningham, 857 F.2d 965 (4th Cir. 1988) Lewis v. Brown & Root, Inc., 711 F.2d 1287 (5th Cir. 1983) ii

4 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 4 of 31 Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir. 1999)... 18, 22 Pennsylvania v. Delaware Valley Citizens Council, 478 U.S. 546 (1986)... 7 Razore v. Tuliap Tribes of Washington, 66 F.3d 236 (9th Cir. 1995) S. Alliance for Clean Energy v. Duke Energy Carolinas, LLC, 650 F.3d 401 (4th Cir. 2011)... 6 Sierra Club v. Cripple Creek and Victor Gold Mining Co., 509 F. Supp. 2d 943 (D. Colo. 2006)... 18, 23, 24 Sierra Club v. Shell Oil Co., 817 F.2d 1169 (5th Cir. 1987)... 7 Tarkowski v. Lake County, 775 F.2d 173 (7th Cir. 1985) Statutes and Legislative History Clean Water Act ( CWA ), 33 U.S. C. 1365(d)... 1, 5 Fair Housing Act of 1968, 82 Stat. 88, 42 U.S.C. 3612(c)... 5 Privacy Act of 1974, 88 Stat. 1897, 5 U.S.C. 552a(g)(2)(B) (1976 ed.)... 5 S. Rep. No (1972)... 6 Letter from Douglas Gansler re House Hill 1349, University of Maryland, Baltimore- Environmental Law Clinic - Reimbursement of Lawsuit Expenses, March 20, Testimony of Assateague Coastkeeper, et al., before the Appropriations Committee, Maryland House of Delegates, in Opposition to House Bill 1349, March 15, Regulations Federal Rule of Civil Procedure Federal Rule of Civil Procedure 54(d)(2)... 1, 5 U.S. District Court for the District of Maryland Local Rule , 5 U.S. District Court for the District of Maryland Locals Appendix B... 4 iii

5 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 5 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND WATERKEEPER ALLIANCE, INC. Plaintiff, Civil Action No. WMN v. ALAN AND KRISTIN HUDSON FARM, et al. Defendants DEFENDANT PERDUE FARMS, INC. S MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS FEES AND OTHER LITIGATION EXPENSES In accordance with Federal Rule of Civil Procedure 54(d)(2) and Local Rule 109-2, Perdue Farms Inc. ( Perdue ) hereby moves for fees and costs under the Clean Water Act ( CWA ), 33 U.S.C. 1365(d), which authorizes this Court to grant litigation expenses, including reasonable attorney and expert witness fees, to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. In accordance with the Court s Order, Perdue at this point addresses only the liability issues. 1 Plaintiff, Waterkeeper Alliance, is a New York-based environmental group that set out to bring a CWA lawsuit against a poultry farmer and a poultry integrator on Maryland s Eastern Shore. As recounted in the Court s Memorandum Opinion of December 20, 2012, ECF No. 211 ( Opinion ), on October 20, 2009, Kathy Phillips, representing Waterkeeper Alliance, along with 1 Perdue separately submitted a Bill of Costs, ECF No. 213, seeking reimbursement for costs allowed to prevailing parties in this district as a matter of course.

6 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 6 of 31 a lawyer for the group and a Wall Street Journal reporter, undertook an aerial reconnaissance of the Delmarva Peninsula. Their avowed goal, as described on the log they filled out before boarding the flight, was to document industrial chicken farms in the region to inform a Clean Water Act lawsuit [that Waterkeeper] intends to file. Opinion at 6 (quoting Perdue s Trial Ex. 140). The individuals on the flight spotted what they assumed to be an uncovered pile of chicken manure. Instead of alerting state or federal officials to what appeared to be an ongoing hazard, Ms. Phillips and Plaintiff kept quiet and instead gathered evidence for their planned lawsuit. Two months went by while Ms. Phillips periodically tested the water in a ditch outside the Hudson Farm, and on December 17, 2009 Plaintiff filed a Notice of Intent to Sue Perdue and Hudson Farm. As the Court stated: Despite the fact that Waterkeeper had never tested the pile nor attempted to gain access to test the pile, Waterkeeper represented in that notice that [o]ur investigation revealed that Hudson Farm stockpiles uncovered poultry manure next to a drainage ditch in its production area. Id. at 9 (quoting Pl. s Trial Ex. 14). Upon receipt of the Notice of Intent to Sue, State officials immediately investigated the farm and quickly determined that the pile was not chicken manure, but biosolids that had been lawfully delivered to co-defendant Alan Hudson from the Ocean City Wastewater Treatment Plant. As this Court noted: After the discovery that the pile on the Hudson Farm was bio-solids, and not chicken manure as first alleged, Phillips and Waterkeepers continued to represent to the press and public that the pile contained a mixture of human waste and chicken manure. Remarkably, Phillips on behalf of ACT issued a press release on December 23, 2009, stating that [w]e are appalled to learn from Perdue s public statements that it now admits importing human sewage into [the Hudson Farm], Perdue s Ex. 145, although Perdue had never made any such admission. As late as February 27, 2010, Phillips continued to state in press releases that the pile 2

7 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 7 of 31 contained chicken manure, 2 despite the fact that she had no evidence to support that representation. Id. at Although there was no evidence that Alan Hudson had done anything wrong, and absolutely nothing to link Perdue to any alleged pollution, Plaintiff held a press conference and filed a lawsuit against Mr. Hudson and Perdue anyway. Plaintiff pursued the case through document and other written discovery, depositions and dispositive motions. Although Plaintiff s theory of liability kept changing, it settled finally on the claim that fan emissions from the chicken houses and litter tracked out on shoes and machinery led to illegal discharges of pollutants under the CWA. During all of the time that it was litigating this case (from the date the complaint was filed until the end of formal discovery was approximately 14 months), Plaintiff easily could have tested the air, soil or water on the Hudson Farm to determine whether there was any merit to its claims. It chose not to do so. 2 Actually, the University of Maryland Environmental Law Clinic publicly stated that the biosolid pile contained chicken manure as late as Fall 2010, when it published a newsletter with a large photo of the biosolid pile and the caption [e]xposed chicken manure near drainage ditch at Hudson Farms in Berlin, Maryland. See Clinic Wins Key Ruling in Chesapeake Bay Pollution Lawsuit Against Poultry Industry, University of Maryland School of Law Environmental Law Program Newsletter, Fall 2010, attached as Exhibit 1. 3 To this day, Plaintiff continues to misrepresent its discovery. A photo on Plaintiff s website shows the pile of biosolids at the Hudson Farm over the caption aerial shot of chicken manure that measures two stories high. Waterkeeper Alliance, Photo Blog: Poultry CAFOs, (last visited Feb. 5, 2013), attached as Exhibit 2. Similarly, despite the Court s clear and explicit ruling that Perdue does not exert control over the Hudson Farm for purposes of the CWA, the ACT website states Waterkeeper Alliance showed that every aspect of the operation of the poultry business on the Hudson Farm was controlled by Perdue. See A Statement From Assateague Coastal Trust As Waterkeeper Alliance Rests Its Clean Water Act Case, Assateague Coastal Trust (posted Oct. 24, 2012), attached as Exhibit 3. In addition, following the Court s opinion, Kathy Phillips posted the testimony of Perdue employees showed that every aspect of the operation of the poultry business on the Hudson Farm was controlled by Perdue. See Exhibit 3, Kathy Phillips, Judge Nickerson Rules in Perdue/Hudson Clean Water Act Pollution Lawsuit, Assateague Coastal Trust (posted Dec. 20, 2012), 3

8 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 8 of 31 Another clear chance to avoid a groundless lawsuit came with the Court s ruling on the parties cross-motions for summary judgment. On March 1, 2012, this Court issued an Order that made it abundantly evident that the record, as it then existed, would not support Plaintiff s claims at trial. In fact, this Court cautioned Plaintiff, noting that while certainly rare, it is not unprecedented that attorney s fees can be awarded to a prevailing defendant in a CWA citizen suit. Letter Order Denying Motions for Summary Judgment ( Order ), at 3, March 1, 2012, ECF No While a typical litigant with experienced counsel would have understood and reacted to the Court s strong suggestion by rapidly disposing of the case, Plaintiff pressed on, unwilling to give up the promotional stage that it had created. As this Court detailed in its December 20, 2012 Opinion, Plaintiff lacked evidence to prove its claims at trial. The Court noted that [g]iven the significant amount of resources that Plaintiff has expended on this litigation, coupled with the foreseeable resource expenditures imposed on Defendants, as well as the time and effort imposed on the Court, it borders on indefensible that Plaintiff would not have conducted the straightforward testing and sampling that could have established a discharge from the poultry operation, if there was such a discharge. Opinion at In addition to the substantial fees and costs Perdue incurred leading up to summary judgment; it paid additional attorney and expert fees and costs from March 1, 2012, when the Court issued its order on summary judgment, until the end of trial. 4 Perdue is entitled to recover its litigation fees from Plaintiff, which continued to litigate an action well beyond the time when 4 Despite having reasonably incurred substantial fees both before and after its Motion for Summary Judgment (especially in light of Plaintiff s shifting accusations), Perdue limits its request here to only those attorney and expert fees incurred after March 1, 2012, that are specifically permitted by this Court s Local Rules and Appendix B to the Local Rules, Rules and Guidelines for Determining Attorneys Fees in Certain Cases ( Guidelines ). 4

9 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 9 of 31 the case clearly was unreasonable (assuming, but not conceding, that it was not frivolous from the start). As this Court stated, [w]hen citizen groups take up that mantle [of taking appropriate legal action where state or federal regulators do not],... they must do so responsibly and effectively. The Court finds that in this action, for whatever reason, Waterkeeper did not meet that obligation. Id. at 49. In keeping with Fed. R. Civ. P. 54(d)(2) and Local Rule 109-2, as informed by the Court s letter ruling of January 25, 2012, Perdue shows that it is entitled to a fee award. Section I, below, reasons that the Court should exercise its discretion to award Perdue its reasonable legal fees, especially in light of Plaintiff s improper purpose in filing this lawsuit. Section II shows that, even if the Court could award fees only if it found that the case was frivolous, unreasonable or groundless, and even if the case did not meet those criteria to start with, the Court s March 1, 2012 Order put Plaintiff on notice that its claims were baseless and that it lacked evidence to support them. Therefore, Perdue is entitled to collect its reasonably incurred litigation expenses, including both attorneys and expert fees, from that date forward. I. The Clean Water Act authorizes the award of legal fees to any prevailing or substantially prevailing party. Section 1365(d) of the CWA provides that "[t]he court, in issuing any final order in any [citizen suit]..., may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. The CWA fee-shifting provision makes no distinction between plaintiffs and defendants. When Congress intends that only prevailing plaintiffs may recover their fees, it knows how to say so explicitly. See, e. g., Privacy Act of 1974, 88 Stat. 1897, 5 U.S.C. 552a(g)(2)(B) (1976 ed.); Fair Housing Act of 1968, 82 Stat. 88, 42 U.S.C. 3612(c). In the CWA, through its use of the phrase any prevailing or substantially prevailing party, Congress 5

10 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 10 of 31 made clear that courts have discretion to award fees to prevailing defendants as well as successful plaintiffs. The standard for awarding legal fees to prevailing plaintiffs under the CWA is quite liberal. Courts typically award fees to plaintiffs whenever they have pursued and obtained remedies under the [CWA]. See, e.g., S. Alliance for Clean Energy v. Duke Energy Carolinas, LLC, 650 F.3d 401, (4th Cir. 2011) (interpreting CWA s use of the words partially prevailing parties to mean parties achieving some success, even if not major success, and awarding the plaintiff legal fees incurred in an administrative proceeding). There is no question that Perdue is the prevailing party in this litigation. The Court s 50 page December 20, 2012 Opinion left no doubt that Plaintiff did not establish a CWA violation and that, even if there had been a CWA violation, Perdue did not exercise the requisite control over the Hudson Farm s environmental compliance to make Perdue liable under the CWA. See Opinion at 44, 47. The CWA does not state when it is appropriate for a trial court to exercise its discretion to award fees to a prevailing party. 5 As the Supreme Court has stated, however, if the objective of Congress had been to permit the award of attorney s fees only against defendants who had acted in bad faith, no new statutory provision would have been necessary, since even the 5 The legislative history states as follows: Concern was expressed that some lawyers would use section 505 to bring frivolous and harassing actions. The Committee has added a key element in providing that the courts may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such action is in the public interest. The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing. This should have the effect of discouraging abuse of this provision, while at the same time encouraging the quality of the actions that will be brought. S. Rep. No , at 3747 (1972) (emphasis added). 6

11 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 11 of 31 American common-law rule [not to mention Fed. R. Civ. P. 11] allows the award of attorney s fees in those exceptional circumstances. Christiansburg Garment Co. v. Equal Employment Opportunity Comm n, 434 U.S. 412, 417 (1978). When a statute is silent as to the circumstances that would make a fee award appropriate, Congress has entrust[ed] the effectuation of the statutory policy to the discretion of the district courts. Id. at There are many reasons why this Court should exercise its discretion to award Perdue its legal fees. In her closing arguments, Plaintiff s counsel defended Plaintiff s attack on Alan Hudson and justified the hardship the lawsuit imposed on him by citing his responsibility for the choices he had made -- to raise chickens, to farm with Perdue and to apply for state assistance: But as I told my son when he was growing up, when he became an adult, once you start making choices, you got to live with those choices. Transcript of Pl. s Closing Argument, Nov. 30, 2012 at 99:2-4. Now, Plaintiff faces responsibility for its choices. This Court, in its Opinion, 6 In Christiansburg, the Supreme Court held that under the fee-shifting provision of Title VII of the Civil Rights Act, fees should be awarded to prevailing defendants only when the district court finds that the plaintiff s action was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. 434 U.S. at 422. In Pennsylvania v. Delaware Valley Citizens Council, 478 U.S. 546, (1986) and City of Burlington v. Dague, 505 U.S. 557, (1992), the Court held that the citizen s suit, fee-shifting provisions of the environmental laws should be applied in a similar manner, Delaware Valley, 478 U.S. at 559, as those of the civil rights laws but it said so in the context of resolving whether plaintiffs should be awarded fees for certain tasks and of deciding how to calculate a reasonable fee not in the context of determining when it is appropriate to award fees to a prevailing defendant. Some courts have construed the CWA to authorize a fee award to a prevailing defendant only when the plaintiff s case is frivolous, unreasonable or groundless or when a plaintiff continued to litigate after it clearly became so i.e., when a case meets the Christiansburg standard. See, e.g., Atlantic States Legal Found. v. Onondaga Dep t of Drainage, 899 F. Supp. 84, 87 (N.D.N.Y. 1995). This argument is addressed in Section II, below. Other courts that have considered the issue, however, do not impose a higher standard on prevailing defendants. See, e.g., Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1176 (5th Cir. 1987). Notably, the Fourth Circuit has never held that prevailing defendants should be treated differently from prevailing plaintiffs under the CWA s fee-shifting provision. 7

12 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 12 of 31 directly assessed Plaintiff s choice to pursue this litigation and found that Waterkeeper did not meet [the] obligation to act responsibly and effectively. Opinion at 49. Contributing to Defendants litigation fees is the appropriate way for the Court to ensure that Plaintiff bears some responsibility for its choices. First, Plaintiff brought this lawsuit for improper reasons. This was not a normal court case in which an injured party sues another to recoup its losses. Nor was it a typical citizen s suit in which a plaintiff sought to enforce a CWA provision that state and federal authorities did not or could not enforce. As the Court pointed out, Waterkeeper has a goal of using the CWA to force poultry integrators, like Perdue, to seriously alter if not abandon their operations on the Eastern Shore, and pursuit of that goal was Plaintiff s primary objective. Id. at 6. Plaintiff s founder and spokesperson, Robert F. Kennedy, Jr., stated Plaintiff s goal and outlook regarding Perdue when he addressed an environmental conference in Maryland in November 2007: Kennedy, son of the late senator and presidential candidate, accused Perdue Farms, which is based in Salisbury, of stealing the Chesapeake Bay from the public by polluting it, and having "indentured servants" in the Maryland state government who allow them to foul the waters to make a profit. Perdue... has privatized the fish and waterways of the Chesapeake Bay. It has stolen them from the public, Kennedy said. And that is not an act of democracy. That is a milestone of tyranny, and we have to recognize that. Tr. Transcript, Oct. 10, 2012 at 53; Perdue Trial Ex Plaintiff s counsel, Jane Barrett, appeared on the program with Mr. Kennedy for the 2007 environmental conference. See Agenda, Eastern Shore Poultry Summit, Nov. 1, 2007, attached as Exhibit 4. Another of Plaintiff s lawyers, Scott Edwards, who also served for eleven years as Director of Advocacy for Plaintiff, referred to chicken farming on the Eastern Shore in the April 10, 2012 Baltimore Sun as the modern manifestation of a feudal system. See Scott Edwards, Perdue distorts the facts, Baltimore Sun, April 9, 2010, at attached as Exhibit 5. 8

13 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 13 of 31 Instead of vindicating a congressionally sanctioned policy of the CWA, Plaintiff wrongly appropriated the law s citizen suit provision and the federal courts to advance its own policy goals. Despite Plaintiff s failure to prevail on any of its claims, Plaintiff and its allies view this case as a victory, because it definitely got everyone s attention. See Sound Bites on Delmarva: Episode 44, Delmarva Public Radio (Jan. 2, 2013) at 48:1-3, transcript attached as Exhibit 6. As Kathy Phillips commented publicly, We didn't win the integrator liability this time around but I think it has everybody's attention. Id. at 49:11-13; see also id. at 47:20-48:6 ( we have seen that this made a huge difference and it definitely got everyone's attention, not only within the industry and within the environmental community but the general public at large. I think the public knows more now than they ever did before about how the poultry industry operates on Delmarva. People are I think more aware.... ); 49:17-21 ( the good thing about this trial is, the good thing is that it has started this public dialog and it certainly is going to be Assateague Coastal Trust's intention to keep that public dialog going.... ). In describing Plaintiff s decision not to appeal this Court s Order, Plaintiff s executive director stated we believe that many of the issues brought to light during the trial... will lead to progress in protecting and restoring the bay. See Elaine Bean, Waterkeeper will not appeal lawsuit, The Salisbury Daily Times, Jan. 23, 2013, Waterkeepers-will-not-appeal-lawsuit, attached as Exhibit 7. Similarly, the Assateague Coastal Trust ( ACT ) website states that ACT will use the evidence from this trial in future efforts and Plaintiff is quoted as saying that many of the issues brought to light during the trial... will lead to progress.... See Exhibit 3, Waterkeeper Alliance Decides Not to Appeal Its Case, Assateague Coastal Trust (posted Jan. 24, 2013), readmore.html. 9

14 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 14 of 31 This case was never about Perdue and the Hudson Farm. When the Court asked Plaintiff s counsel directly why Plaintiff had failed to do the basic sampling that could have tested its claims, Counsel gave two reasons. First, she said that circumstances had changed at the farm and that it would be impossible to duplicate the precise conditions at the time of the alleged violations. As the Court observed, that explanation was belied both by Plaintiff s allegation [of a] continuing violation on the Hudson Farm, as well as by common sense. Opinion at 24. The second reason that Counsel gave for Plaintiff s failure to even attempt to adduce the necessary proof was, according to the Court somewhat astonishing. Id. at 25. Counsel stated that Plaintiff is not made of money and that the necessary testing would have been too expensive. Id. As the Court aptly observed, given the copious amounts of time, money and effort that the parties and the Court spent on this case, Plaintiff s failure to conduct the straightforward testing that might have allowed it to prove its claim (assuming a claim existed) borders on indefensible. Id. at 25. Moreover, as discussed below, Plaintiff s pursuit of this litigation was extremely well-funded and Plaintiff was able to afford the services of at least two separate public relations firms (Goodwin Media and Hastings Group) to advertise its pursuit of the lawsuit. The real reason that Plaintiff did no testing is that Plaintiff s goal was not just to win this case but, more importantly, to mount a public relations campaign, strike a blow against chicken farming on the Eastern Shore and stop Perdue (earlier cast as tyrannical by Kennedy and feudal by Edwards), from going along its merry way. Transcript of Pl. s Closing Argument, Nov. 30, 2012 at 104: Testing would have confirmed the lawsuit s lack of merit thus robbing Plaintiff of its platform. 10

15 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 15 of 31 Plaintiff needed a lawsuit (no matter how baseless) to have a soapbox from which to make statements about its campaign. That is why Plaintiff issued a plethora of press releases during the litigation, hosted many press conferences and posted on its website a daily transcript of the trial. That some of Plaintiff s statements were about the facts of this case and that many of them were false did not matter as long as they were accompanied by lofty rhetoric about what Plaintiff perceived as the greater cause. Of course, publicity breeds contributions, so the more Plaintiff publicized its lawsuit, the more money it received to keep the lawsuit going all without regard to the fact that the claims were unfounded. This Court already stated that Plaintiff s reasons for filing this lawsuit might prove significant. In its March 1, 2012 Order, this Court noted that [w]hile the Court s concerns regarding Plaintiff s motivations might not be relevant at this [the summary judgment] stage in the litigation, the course that this litigation has taken might have relevance at a later stage. Order at 3. The Court then reminded the parties that it is not unprecedented that attorney s fees can be awarded to a prevailing defendant in a CWA citizen suit. Id. Note that the websites that Plaintiff primarily used to publicize this lawsuit (those of Waterkeeper Alliance, ACT, and the University of Maryland Environmental Law Clinic) prominently featured a Donate Now button after their deceitful descriptions of the case. 8 8 Plaintiff s improper purpose for filing this lawsuit also supports an award of fees under the more demanding standard discussed in Section II, below, in that it shows that Plaintiff s claims were frivolous, unreasonable and groundless. See Arnold v. Burger King Corp., 719 F.2d 63, 66 (4th Cir. 1983) (noting, in the context of the civil rights fee-shifting statute, that [A]lthough the motivation factor is not a prerequisite to the award of attorneys' fees to the defendant, it may shed light on the degree of frivolousness. ) (citing Christiansburg Garment Co. v. Equal Employment Opportunity Comm n, 434 U.S. 412, 421 (1978)); Tarkowski v. Lake County, 775 F.2d 173, 176 (7th Cir. 1985) ( [a] legally or factually baseless suit is frivolous but even more clearly and reprehensibly so is a suit brought to harass or oppress - a suit that the plaintiff brought not in the hope of winning but solely in order to put the defendant to the burden of defending himself. ). See also Coles v. Wonder, 283 F.3d 798, 803 (6th Cir. 2002) (affirming 11

16 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 16 of 31 Second, although Plaintiffs bad faith is not a pre-requisite, the Court could conclude that Plaintiff in this case has evidenced bad faith in that it has repeatedly shown a willingness to falsify events whenever it has been convenient to do so. For example, the Court noted an instance when cross-examination revealed that Plaintiff s expert witness had testified in a way that was helpful to Plaintiff s case, but that turned out to be false. See Opinion at 18 ( While Bell initially sought to minimize the portion of that pasture that drained towards Ditch 3, when confronted with a contour map during cross examination, he conceded that a much larger portion of the pasture would drain to Ditch 3 or Ditch 1 above HF02. ). Similarly, on direct examination, Plaintiff s witness Drew Koslow marked on a map the spot where he said he had sampled the water and placed the mark so close to the Hudson Farm, where the water tested could not have been affected by run-off unrelated to the Hudson Farm, that he would have been trespassing on farm property if he had actually sampled there. But he had not, and that fact was brought out in cross-examination, when Mr. Koslow had to admit that his sampling site was much further south and therefore subject to influence from sources other than the Hudson Farm. Tr. Transcript, Oct. 9, 2012 (PM) at 45:2-25, 50:13-51:21. 9 award of fees to defendant in copyright infringement suit where, as here, plaintiff s claim was unreasonable, plaintiff s motivation in bringing th[e] case was suspect, and where plaintiff used media to advance the perception that defendant was liable, likely in order to try and seize an advantage over defendant); Hoover v. Armco, Inc., 915 F.2d 355, 357 (8th Cir. 1990) (affirming award of fees to defendant where, as here, [P]laintiff intentionally advanced a frivolous contention for an ulterior purpose. ) (citations omitted); American Family Life Assurance Co. of Columbus v. Teasdale, 564 F. Supp. 1571, 1575 (W.D. Mo. 1983) (affirming award of fees to defendant in civil rights action where, as here, plaintiff s case was completely lacking in factual support and was motivated by an improper purpose: where a plaintiff s motivation for suing is improper, it must be prepared to pay the fare. ), aff d, 733 F.2d 559 (8th Cir. 1984). 9 With respect to the dispute regarding where the cow pasture and cow-watering area drained, The Court stated as follows: To the extent that the photographs entered in evidence might be misleading or might tell an incomplete story, the Court notes that Defendants requested that the 12

17 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 17 of 31 Plaintiff s chief witness, Kathy Phillips, admitted that she out-and-out lied regarding the facts of this case. Conceding that the only way to know the contents of the pile she had observed from the air was to test it and that she knew of no test results, Ms. Phillips confessed that she nevertheless broadcast, without qualification, that the pile was chicken manure, on the web, in the press and in the Notice of Intent. As noted earlier, Plaintiff s website continues to repeat that fabrication to this day. This Court recognized and remarked on Ms. Phillips dishonesty when it stated that While no one could question the passion with which Phillips approaches [her] goal, the Court observed in her testimony and her conduct a certain end justifies the means approach, where truth can be spun to achieve a desired goal. Opinion at 6. Plaintiff also persists in disseminating the falsehood that it was denied access to the Hudson Farm. As recently as December 21, 2012, the day after this Court issued its Findings of Fact and Conclusions of Law, the president of Assateague Coastal Trust spoke to a reporter on behalf of Plaintiff: Confirming a link between the chickens and nutrients in the river was always something we knew was a difficult thing to do,.... The environmental groups weren t allowed to sample the farm itself, which might have established a connection, they contend. See Jeremy Cox, Perdue: Hudson verdict a complete victory for farmers, The Salisbury Daily Times, Dec. 21, 2012, NEWS01/ /Perdue-Hudson-verdict-complete-victory-farmers (emphasis added), attached as Exhibit 8. In addition, Scott Edwards, who is one of Plaintiff s lawyers, spoke on the radio regarding the Court s Opinion and commented that it is hard to litigate against CAFOs because you don t have access to them (see Exhibit 6 at 25:15-17) and that CWA Court conduct a site visit to make first-hand observations of the farm. ECF No Waterkeeper strenuously objected to the Court doing so... Opinion at 17, n

18 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 18 of 31 cases against CAFOs are different than other cases because since you don t have access to farms, you never know what s going on[.] Id. at 26: As counsel of record, Mr. Edwards certainly knew that Plaintiff never asked to visit the farm to do any testing, was given access to the Hudson Farm on the two occasions that it sought permission and, even if it had not received authorization from Mr. Hudson, certainly could have petitioned the Court for access which this Court would no doubt have readily given. Moreover, Plaintiff also continues to misrepresent other facets of this case. Mr. Edwards, in the same interview to a local radio program referred to above, falsified the facts (again), distorted the law and even questioned the Court s integrity. Mr. Edwards spoke as though Defendants had the burden of proof (Id. at 31:7-10 and ( the only thing that perhaps would have given the Court, you know, no room to maneuver on that issue is perhaps this bacterial source tracking type of sampling [and Perdue] hired an expert who has specific expertise and they didn't use that expertise to definitively discount chicken manure )), ignored the regulatory scheme (Id. at 25:5-10 ( [the Court] doesn't hold Perdue responsible even though it says possible (sic) it s coming from the chicken houses.... Concedes that a lot of the pollution is coming from the cows, but we're not going to hold Alan Hudson responsible )) and, essentially, accused the court of being a biased pawn for the agriculture industry (Id. 23:7-9 ( our courts are extremely hesitant to take on this industry ); 30:4-9 ( I think it was clear from this court that... they didn't like the case. They didn't want to rule in favor of plaintiffs ); 32:12-17 ( you go into these cases and there's a lot of leeway with these courts and with these judges and, you know, they can always find ways to go in the direction that they want to go in typically and that's what happened here. )). In addition, despite the Court s carefully worded 50 page opinion explaining precisely what Plaintiff could have done to prove its case, Mr. Edwards remarked that Plaintiff 14

19 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 19 of 31 had presented the Court with plenty of evidence and that he was not quite sure what more you can do. Id. at 31:5 and 32: Awarding Perdue reasonable fees is the appropriate thing to do because Plaintiff 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. Plaintiff s counsel, Scott Edwards, claims that despite there being pollution coming off the Hudson Farm [e]verybody gets to walk away. Id. at 29:2-3. See also id. at 48:19-20, interview with Kathy Phillips ( [a]nd yet out of this case nobody was held accountable ). But it is Mr. Edwards and his client who want not to be held responsible for their actions. As counsel for Plaintiff stated in her closing remarks: once you start making choices, you got to live with those choices. Transcript of Pl. s Closing Argument, Nov. 30, 2012 at 99:3-4. The public interest compels an award of litigation fees to Defendants in this case because it is the most effective way to discourage Plaintiff from doing more of the same. Unlike Perdue, Plaintiff has access to free legal representation. Because Plaintiff s lead counsel is paid by Maryland taxpayers and Plaintiff has all of the students and taxpayer-paid Fellows at the University of Maryland Law Clinic at its disposal, Plaintiff incurs no cost when it files a baseless claim. Moreover, the Town Creek Foundation awarded Plaintiff a $100,000 grant in 2010 specifically to to fund the Perdue Integrator Liability Lawsuit. See Town Creek Foundation, Recent Grants to Waterkeeper Alliance, attached as Exhibit 9. Similarly, the Campbell Foundation has given Plaintiff a total of $100,000 over three years for a revolving litigation fund and $50,000 in two separate grants to help cover the costs of the lawsuit. See Timothy Wheeler, Farm pollution lawsuit spurs 15

20 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 20 of 31 public relations battle, Baltimore Sun, March 19, 2012, at chicken-farmer-campaign _1_kristin-hudson-waterkeeperalliance-perdue-farms/2, attached as Exhibit 10; see also Campbell Foundation, attached as Exhibit 11 (listing grants to Waterkeeper Alliance for a lawsuit that will seek to establish integrator liability on the part of large poultry companies and a court case seeking to hold integrators responsible ). In short, there is simply no reason not to bring a litigation that spawns what Plaintiff perceives as any sort of advantage. Undeterred by defeat in this Court, therefore, Plaintiff who has free legal help, supplemented if necessary by a well-provisioned, out-of-state non-profit that collects grant money specifically to fund its legal battles can simply move on and sue the next farm. In fact, Plaintiff has essentially admitted that it intends to do just that. See Exhibit 6 at 23:14-15, interview with Scott Edwards ( this is a long ongoing battle and it will continue ); 27:9-10 ( the battle and the fight and the effort will continue ); 28:17-19 (agreeing that you lose until you win ); 29:12-13 (he and others will continue to fight... to put an end to these things ); 33:16-18 ( we ll be taking other steps and mounting other efforts and, you know, again it s a long term struggle ). See also id., at 49:11-12, interview with Kathy Phillips ( We didn t win the integrator liability this time around ) (emphasis added). Only by having to pay some portion of Defendants legal fees will Plaintiff not see this case and others like it as successes whatever the cost to the courts and to innocent parties forced to endure the ordeal and expense of meritless lawsuits. There should be a deterrent to Plaintiff s planned assault by serial lawsuits. Even Plaintiff s allies have conceded that this Court is the appropriate tribunal to impose that deterrent. HB 1349, introduced last year before the Maryland House of Delegates, would have 16

21 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 21 of 31 required that the University of Maryland reimburse Alan Hudson s legal fees. The bill, referred to by Kathy Phillips as grandstanding at its worst, (see Jennifer Shutt, Legislation would aid Berlin farm family, The Salisbury Daily Times, Feb. 14, 2012, attached as Exhibit 12) was opposed by a coalition of eighteen environmental groups (including ACT and other members of Plaintiff, Waterkeeper Alliance), who pointed out to the house committee considering the bill that [t]he Bill is not only inappropriate but unnecessary because [t]he CWA authorizes the court to make an award of legal fees and costs to either party and could result in a duplicative payment and windfall should the court make an award under the CWA. See Testimony of Assateague Coastkeeper, et al., before the Appropriations Committee, Maryland House of Delegates, in Opposition to House Bill 1349, March 15, 2012, attached as Exhibit 13. Similarly, the State Attorney General s office argued that awarding legal fees was up to the judiciary, not the legislature, and specifically referred to this Court s actions to support the bill s defeat: [in the summary judgment Order] the federal judge felt compelled to note that it has discretion to award such [attorney] fees to a prevailing defendant. See Letter from Douglas Gansler re House Bill 1349, University of Maryland, Baltimore- Environmental Law Clinic - Reimbursement of Lawsuit Expenses, March 20, 2012, at 3, attached as Exhibit 14. For the reasons set forth above, Perdue asks that the Court deem an award of fees to it appropriate in this instance. 10 II. Perdue is entitled to recover its legal fees even under a stricter standard. As noted earlier, some courts have concluded that prevailing defendants under the CWA may recover their legal fees only if the district court finds that the plaintiff s action was 10 Although the Court could award Perdue all of its litigation fees, whatever the basis for a fee award, Perdue seeks recovery only of those fees incurred after the Court s March 1, 2012 Order that are consistent with the Local Rules and Guidelines. 17

22 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 22 of 31 frivolous, unreasonable, or without foundation, or that the plaintiff continued to litigate after it clearly became so. See, e.g., Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir. 1999) (quoting Razore v. Tuliap Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995) and citing Christiansburg, 434 U.S. at 421, 422, the latter case adopting the higher standard in the context of fee awards to prevailing defendants in civil rights cases); Sierra Club v. Cripple Creek and Victor Gold Mining Co., 509 F. Supp. 2d 943, 950 (D. Colo. 2006) (same) (citations omitted) (discussed in more detail below). Although the Fourth Circuit has never held that the straightforward fee-shifting language of the CWA (or any other environmental statute with the same fee-shifting provision) is subject to the Christianburg standard, and, therefore, the Court need not reach the issue, this case easily meets that requirement. Plaintiff s lawsuit was frivolous, unreasonable and groundless from the start. The premise of Plaintiff s claim, and the reason it singled out the Hudson Farm and Perdue for its lawsuit in the first place, was Plaintiff s aerial sighting of what it incorrectly identified as a pile of uncovered chicken manure. When the pile was shown to contain biosolids, not manure, which happened after Plaintiff filed its Notice of Intent to Sue but before it filed its Complaint, Plaintiff continued with its lawsuit, undeterred by the facts, which did not really matter to Plaintiff as long as it could use the vehicle of a lawsuit to deliver its message. Plaintiff proceeded through years of litigation without once attempting to do any of the testing needed to establish a violation of the CWA. As this Court observed, although Plaintiff repeatedly displayed at trial a blown-up photograph of a Hudson Farm poultry house fan and [i]t would, of course, have been a simple matter to sample the material seen accumulated on the fans or the soil underneath the fans, neither Plaintiff nor its expert, Bruce Bell who, 18

23 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 23 of 31 ironically, was designated as an expert in environmental sampling, took [any] such samples. Opinion at Even if Plaintiff could in some way justify having pursued its claims through the end of discovery, this Court s March 1, 2012 Order left no doubt about the inadequacy of Plaintiff s proof. In other words, Plaintiff continued to litigate after it[s case] clearly became frivolous, unreasonable or groundless. See Christiansburg, 434 U.S. at 422. Although the Court denied the motions for summary judgment, it noted that its role at that stage of the litigation was limited and that it felt compelled, with some reluctance to deny the motions. Order at 2, 1. The Court also remarked that it would be sitting as the trier of fact during the bench trial, and that its role at that point would be to weigh the evidence and make credibility determinations. Id. at 2 (citation omitted). The Court further observed that if it were to accept the credibility of Plaintiff s expert and other witnesses, it could conclude that during rain events, trace amounts of chicken litter that has been blown out by exhaust fans or tracked out on tires and shoes or left on the heavy use pads is carried by the rainwater through the grass, into the swale, through the pipe at the end of the swale, into Ditch 1, and into the Franklin Branch. Id. The Court then stated: Of course, to come to that conclusion, the Court would need to credit Dr. Bell s testimony that water carrying this trace amount of chicken litter will keep flowing through the grass in the swale when he has also testified that water actually observed in direct contact with cow manure will simply seep into the ground near the location of the manure and not reach the ditches. Also, if the Court accepts the validity of Bell s pathways, the Court would be hardpressed to discern how every chicken production operation on the Eastern Shore is not in violation of the Clean Water Act (CWA). Id. The Court noted that on the other hand, it could credit the testimony of Defendants expert and witnesses and conclude that the more than 600 tons of cow manure that is left in the fields on the Hudson Farm each year accounted for the elevated pollution levels found on and 19

24 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 24 of 31 near the farm. Id. In essence, therefore, the Court communicated the result of further contest: if Plaintiff was right, Defendants would win; if Defendants were right, Plaintiff would lose. Instead of re-evaluating the lawsuit, Plaintiff plowed ahead with its crusade. 11 This is not a case where Perdue asks the Court to reach a simple post hoc conclusion that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. Christiansburg, 434 U.S. at 422. Perdue recognizes that [t]his kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. Id. That concern does not preclude a district court from concluding that an action is frivolous, unreasonable, or groundless, however, and thus awarding fees to a prevailing defendant when the circumstances warrant it, as they do here. See Coon v. Willet Dairy, 5:02-CV-1195 FJS/GJD, 5:04-CV-917 FJS/GJD, 2009 WL at *2. (N.D.N.Y. Mar. 31, 2009) (awarding attorneys fees to prevailing defendants in CWA case because plaintiffs pursued their action even after they received a reply memorandum that showed that the alleged violations were shielded by valid permits, and that plaintiff would be unable to 11 Tellingly, the University of Maryland Environmental Law Clinic, which the Court singled out on page 4 of its March 1, 2012 Order for its brief-writing ( to the extent that this litigation is intended to be a learning experience for the students from the University of Maryland clinic, I feel obliged to make a comment Submitting briefs near the maximum page limit permitted under the Local Rules but with 767 single-spaced, small-fonted footnotes not only circumvents the spirit if not the letter of the Local Rules, but also makes for less than compelling advocacy ), does not mention the summary judgment ruling on its website, choosing instead to trumpet its victory at an earlier stage before the Court knew any facts. See Exhibit 1, Clinic Wins Key Ruling in Chesapeake Bay Pollution Lawsuit Against Poultry Industry, Fall 2010, s/f10_newsletter.pdf&sa=u&ei=bp4rubyilyst0ahz14didq&ved=0cbiqfjaf&client=inte rnal-uds-cse&usg=afqjcnhuf-krc8wrujpgev4snj1dnflf9g. The website also misleadingly characterizes the Court s Opinion, saying only that it reaffirmed the importance of the Bay as a vital resource that remains seriously impaired, but omitting any mention of the Court s factual or legal findings. See Judge Rules for Defendants in Clean Water Act Case, attached as Exhibit

25 Case 1:10-cv WMN Document 223 Filed 02/07/13 Page 25 of 31 prove a continuing violation, thus putting the plaintiffs on notice that their claims were frivolous, unreasonable, or groundless). See also Davis v. Target Stores, 87 F. Supp. 2d 492 (D. Md. 2000) (granting defendant s motion for an award of attorneys fees because discovery had made overwhelmingly evident that no conspiracy had existed against plaintiff so that plaintiff's pursuit of his lawsuit after that point became frivolous); Basinger v. Hancock, Daniel, Johnson & Nagle, P.C., No-10-cv-0666 (LMB/TCB), 2010 U.S. Dist. LEXIS , **5-9 (E.D. Va. 2010) (awarding attorneys fees to defendant due to plaintiff s lack of evidence to support claim); Furgess v. United Parcel Service, Inc., No CMC-JRM, 2007 U.S. Dist LEXIS 26785, *5, n.3 (D.S.C. 2007) (awarding attorneys fees to defendant where plaintiff could not establish fundamental elements of its case). The Fourth Circuit has upheld the award of fees to prevailing defendants under many feeshifting provisions that required a finding of frivolity, lack of reasonableness, or groundlessness. Bass v. E. I. DuPont de Nemours & Co., 324 F.3d 761, 766 (4th Cir. 2003) (employment) (awarding fees to a prevailing defendant where claim was frivolous because the plaintiff failed to present any credible evidence to support his contentions and went forward on the basis of no colorable legal theory); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (civil rights, RICO, and state common law) (holding that trial court was wrong to vacate a fee award for defendants on the ground that it would chill other legitimate civil rights claims because [w]hen a court imposes fees on a plaintiff who has pressed a frivolous claim, it chills nothing that is worth encouraging and defendants were forced for several years, and at great expense, to fend off a claim that proved to be factually baseless ); Hicks v. Southern Maryland Health Systems Agency, 805 F.2d 1165, (4th Cir. 1986) (employment) (holding that defendants were properly awarded attorney s fees when the plaintiffs asserted baseless claims); Bernstein by 21