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The Nation

It's Berkeley Vs. Bentonville as Lawyers Take On Wal-Mart

June 28, 2004|David Streitfeld | Times Staff Writer

The conference room in Brad Seligman's Berkeley law office is a forlorn place.

Its two windows look out onto walls. The table is scratched, the carpet dull. An air duct stretching across the ceiling adds to the feeling of claustrophobia.

For three years, Seligman has been suing Wal-Mart Stores Inc., accusing it of discriminating against female employees. When the time came for the first big meeting with the company's well-heeled lawyers, he insisted it be done in this room.

"I wanted them to see we weren't about money, that this case wasn't just about money," Seligman says. "We brought it because Wal-Mart needs to change."

Such grand words might once have been easily dismissed as quixotic. But last week Seligman rocked the world's largest company when a federal judge in San Francisco certified his lawsuit as a class-action case.

That instantly broadened it from six women to 1.6 million -- the biggest workplace discrimination case ever. Wal-Mart shares shed $10 billion in market value.

If any of those visiting lawyers had looked into Seligman's own office, they would have seen more evidence that money wasn't his only motivation. Framed on the wall is a poster from the 1969 struggle over People's Park, a literal battleground between University of California administrators and student radicals.

"Strike against the violence of the state," the poster urges.

Formed in the crucible of the late '60s, the 52-year-old Seligman has retained many of the ideals of that convulsive era. "It's still possible to find a fulcrum and make a change," he says. "Although it's much more complicated than it used to be."

Wal-Mart has declined to comment on the class-certification ruling except to say it has nothing to do with the case's merits and that the company would appeal.

In the past, the Bentonville, Ark.-based company has said that any discriminatory acts at its stores were the result of individual managers not following established policies -- not a systemwide problem. Paul Grossman, the Los Angeles lawyer who is Wal-Mart's outside counsel, declined to be interviewed.

Class-action suits are the long-distance marathons of the legal world. The Wal-Mart case has already cost Seligman, his colleague Jocelyn Larkin and the 16 participating lawyers at six other firms nearly $2 million in out-of-pocket expenses.

If it isn't settled, a trial might not take place until 2008 or later. (Seligman's lengthiest class action, against State Farm Insurance, took 14 years.) If the plaintiffs lose, the lawyers will never be reimbursed for expenses, much less paid for their time.

All of these are good reasons for most lawyers to avoid class actions. But Seligman practically revels in them. In 22 years, he's filed 45 class actions. One did not get certified, one he lost at trial and one he withdrew. The 42 others were either settled or, in five cases, won at trial.

"If you really want to change a company, no other legal tool comes close," he says.

Individuals who sue a company often find the focus is on themselves. Were they good employees? Will the company find dirt on them? Are they believable during cross-examination?

"Class litigation, on the other hand, is focused just as relentlessly on the defendant," Seligman says. "That's more my personality. It's fun. It allows me to frame the issues and lead the charge."

The origin of the Wal-Mart case goes back a decade. That's when two New Mexico lawyers, Stephen Tinkler and Merit Bennett, took on a sexual harassment complaint involving two women at a local Sam's Club, a Wal-Mart subsidiary.

In 1997, the partners won a $2-million verdict. That produced a flood of new harassment suits against Wal-Mart, but prevailing never became easy.

"Wal-Mart had unlimited resources. It would fight to the hilt," Bennett says. "Maybe we were naive."

Still, after years of litigation, the lawyers felt they had amassed a pile of useful evidence about the retailer's employment practices that suggested something deeper and more pervasive than harassment.

Discrimination, however, is much harder to prove in court. "Harassment is blatant," Bennett explains. "There are a lot of witnesses. It's out in the open. Discrimination is under the covers, the secret of the company."

The partners began looking in the late 1990s for a Wal-Mart employee who would make a good plaintiff in a class-action employment suit.

"We knew we could continue to do individual cases, and we did, and we'd make money on them," Tinkler recalls. "But we wanted to change the company. Our $2-million verdict had no effect on them."

Several women who fit the bill didn't want to become part of something that could focus attention on them for a decade. It took two years to find Stephanie Odle, who alleged that she was fired from a Sam's Club in Lubbock, Texas, to make way for a male manager who wanted to transfer to her store. (Odle eventually had to be dropped from the case because of a court ruling restricting it to plaintiffs in California, where the suit was filed.)

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