Pork producers file motion to dismiss suing law firms

Chris Berendt Staff Writer

September 25, 2013

A motion has been filed by attorneys for Smithfield Foods Inc. and Murphy-Brown LLC to prohibit two out-of-state law firms from taking part in nuisance litigation against local hog farms — there have now been over 20 civil action suits filed — citing violations of N.C. law and “unethical” methods in recruiting clients.

Last month, Murphy-Brown spokesman Don Butler stood in front of a couple hundred farmers, agri-business executives, lawmakers and others in the Agri-Exposition Center, calling into question the practices of out-of-state law firms he said were recruiting residents in Sampson and surrounding counties to be a part of nuisance suits filed against the company’s local pork producers.

Butler, director of government relations and public affairs for Murphy-Brown, called it a “money grab” from “out-of-state ambulance chasers.” He said Murphy-Brown LLC and its parent company, Smithfield Foods Inc., had no intention of settling the suits and their legal team was looking into the matter and mounting a defense.

That defense has now materialized, in the form of a motion to prohibit the admission of the Middleton Law Firm out of Savannah, Ga. and Speer Law Firm out of Kansas City, Mo. to appear pro hac vice, a term meaning “for this event,” where a firm not admitted to practice in a certain jurisdiction is allowed to participate in a particular case. A third attorney for plaintiffs, Wallace and Graham of Salisbury, N.C. is also included in the motion.

The motion was filed Sept. 17 in Wake County Superior Court by Mark E. Anderson of McGuireWoods LLP, attorneys for defendants Smithfield Foods and Murphy-Brown, and Dan J. McLamb of Yates, McLamb & Weyher LLP, attorneys for defendants Jason Cavenaugh and Ann English.

The motion calls the efforts of the Middleton and Speer firms, together with the Wallace and Graham firm, “a widespread mass solicitation campaign … (in which) representatives of these firms have knocked on doors unannounced and approached strangers in parking lots and attempted to sign them to unethical contracts.”

Attorneys for Smithfield and Murphy-Brown said the actions were in violation of N.C. law and rules of professional conduct.

“The actions of these lawyers place their own personal financial interests ahead of the rights and best interests of North Carolina citizens,” the motion filed by attorneys for Smithfield Foods Inc. and Murphy-Brown LLC, as well as individual defendants, stated. “The appearance of out-of-state lawyers, not licensed in North Carolina, is a privilege — a courtesy extended by the court only upon proper showing. In this case, the Middleton and Speer firms cannot make the required showing.”

Farm nuisance disputes were filed in the Wake County Courthouse in July by attorneys representing 588 potential claimants, all of eastern North Carolina, including Sampson. The requests contain allegations of nuisance — notably foul smell and pollution — from 59 farms in North Carolina, owned and operated by the company’s subsidiaries or independent farmers under contract with Murphy-Brown LLC, the world’s largest hog producer and subsidiary of Smithfield Foods.

Complaints in prelitigation notices include storage of hog waste in lagoons and the spraying of liquid manure on adjoining land. In August, plaintiff attorneys Charlie Speer and Richard Middleton, as well as Mona Lisa Wallace, informed the company’s attorneys of their intention to file complaints on behalf of 300 additional plaintiffs.

“Their intent is to extinguish this business and animal agriculture in the United States as we know it,” Butler stated last month. “This is a very serious matter. Should they prevail, it poses an existential threat to this industry in North Carolina.”

From the end of July through Sept. 10, there have been 21 civil lawsuits filed, each listing the Middleton and Speer law firms as counsel for the plaintiffs. The motion questions practices that defense attorneys said were based in solicitation and “cold calls,” and unethical contracts.

“Their one-sided representation contracts purport to allow the lawyers to drop cases if not in their own financial interest and impose a significant financial penalty on individual claimants who desire to withdraw for any reason,” the motion states. “The efforts on the part of these lawyers to amass large numbers of claimants so to leverage more ‘money’ has resulted in, among other wrongful acts, their asserting claims on behalf of individuals who are deceased or others who refused their solicitations with absolutely no desire to be a part of this litigation.”

Among several exhibits included in the defense motion, an affidavit from a female Bladen County resident states that a man who identified himself as representing the Middleton Law Firm approached her Clarkton residence in October 2012 as she was reading on her porch.

According to the affidavit, the man said he wanted to represent her in a legal action related to hog farms and solicited her signature on an agreement letter, indicating the lawsuit could result in a substantial monetary award based on the number of people signed up with him. The female, in the affidavit, stated she did not have any issues with hog farms and never indicated to anyone she needed a lawyer for such matters.

Another female resident, who lives in the Pink Hill community of Duplin County, relayed a similar story of a person knocking on her door in July 2013. The person said she would represent the Pink Hill resident in a legal action related to hog farms, whereas the resident did not request or need such representation, she said in her affidavit.

A third local resident said he was approached by a stranger in June 2013 at the Hess convenience store in Kenansville. The stranger said he would represent the man in litigation against hog farms, indicating the lawsuit would be worth $75,000, of which $25,000 would be paid to the lawyers and $50,000 paid to the resident. As the two women said, the man in his affidavit said he never indicated to anyone he was in need of a lawyer, not that he wanted to make any claim against hog farms.

Still another female said she was included on a list of Speer’s clients though she never indicated a willingness or desire to participate in the litigation. The motion filed by attorneys of Smithfield and Murphy-Brown also pointed to at least two cases in which defendants were identified that are deceased.

The “Contract for Legal Representation” used by the firms state that the client, if they choose to discharge the firm, will be liable for any and all costs incurred as of the date of termination, with payment to be based upon time devoted to the client’s case at an hourly rate of $450. According to the hog producers; attorneys, the provision fail to make clear that the client may not be liable for such costs under N.C. law, “and unduly influences a client to stay in the pending litigation, even if he or she would rather not, just to avoid paying substantial penalties.”

The motion filed notes that Middleton and Speer are not licensed to practice law in North Carolina nor are they are seeking admission to the N.C. courts to do so pro hac vice.

“Therefore, this Contract for Legal Representation violates several North Carolina laws and Rules of Professional Conduct, and with its believed widespread dissemination, further evidences plaintiffs’ counsels’ disregard for North Carolina law and Rules of Professional Conduct,” the motion states. “Because they have already shown disregard for North Carolina’s requirements for practicing law, plaintiff’s counsel should be denied admission to practice pro hac vice in North Carolina.”

Chris Berendt can be reached at 910-592-8137 ext. 121 or via email at