With little more than a week to go before trial, a defendant in the antitrust litigation that had been lodged against numerous mushroom growers is calling for the judge to recuse.

M.D. Basciani & Sons, which is one of several mushroom growers that had been sued for alleged price-fixing, filed a motion Wednesday saying U.S. District Senior Judge Berle M. Schiller of the Eastern District of Pennsylvania needs to step down from the case after he had alleged ex parte communications with plaintiffs counsel, Bruce Gerstein of Garwin Gerstein & Fisher, and Berger Montague attorney H. Laddie Montague, who is lead counsel for a group of defendants.

The lawsuit is set to go to trial May 20.

The motion, which seeks not only Schiller's recusal but also a stay in the case, said recusal is necessary because Schiller had more than one meeting with Gerstein and Montague without notifying M.D. Basciani & Sons, which is being represented by Kennett Square attorney Thomas K. Schindler and Donna M. Albani of Glen Mills.

Letters Gerstein and Montague filed with the court earlier this week, however, rejected the notion that there was any ex parte communication. The meetings that did take place were held to discuss settlement negotiations that had nothing to do with M.D. Basciani & Sons.

“Mr. Schindler's letter is a baseless effort to derail this long-delayed case,” Gerstein said in his two-page letter. “We respectfully request that the court make it clear that it will not tolerate such efforts so that all parties recognize their obligations to work cooperatively towards the trial.”

According to M.D. Basciani & Sons' motion, the company's attorneys first learned about the alleged ex parte conversations by chance. The motion said Stevens & Lee attorney William DeStefano, who is representing another defendant, had called Albani to notify her that his clients were in settlement talks, and during the course of that conversation, he mentioned that Montague and Gerstein had attended a meeting with Schiller on April 23.

The motion also said that, before a pretrial conference April 26, Albani, DeStefano and Montague shared an elevator. As he left the elevator, DeStefano mentioned that Gerstein and Montague had reached a settlement and had called the judge to report it, the motion said.

According to the motion, after Albani raised the issue during the pretrial conference, Schiller acknowledged that a meeting had taken place, and added that he was not required to give her notice. The parties went on to argue several motions in limine, which were divided up among several defendants. M.D. Basciani & Sons' counsel was not responsible for any of those arguments, the motion said. The motion also said that, after Albani made a motion for recusal, Schiller said he did not know about the settlement, and Montague's May 6 letter also said that the parties had not told the court that there had been a settlement.

M.D. Basciani & Sons' motion, however, contended that because neither Schiller, nor the attorneys, notified M.D. Basciani & Sons about the meeting or conversations, the conversations constituted ex parte communication. The motion further said that M.D. Basciani & Sons had been prejudiced by the alleged ex parte communications because, given the settlement talks, some defendants had no incentive to vigorously argue their motions in limine.

The motion also said that M.D. Basciani & Sons' attorneys spoke with ethics lawyer Sam Stretton, who said the conduct could be a basis for recusal. Stretton is a columnist for Pennsylvania Law Weekly, an ALM publication.

“The proceedings have been irreparably tainted by the discovery of ex parte communications between Mr. Gerstein, Mr. Montague and the court,” Schindler said in a brief supporting the motion. “Further proceedings on the merits will serve only to further taint the proceedings and create additional grounds for reversal.”

Schindler, Montague and Gerstein each did not return a call for comment. DeStefano declined to comment.