Even with Odle on board, Tinkler and Merritt realized they needed lots of help. They asked around and were told the best person for the job was a class-action attorney in Berkeley, a city whose inhabitants would probably set it on fire before they agreed to let a Wal-Mart come in.
Seligman had never been in a Wal-Mart when Tinkler and Merritt called in early 2000. "I hate going to big-box stores," he says. "Those large open rooms and fluorescent lights give me a headache."
In fact, he barely knew what the company was. Still, he was intrigued enough by what the New Mexicans said to have a brief conversation with Steve Stemerman, a San Francisco lawyer who frequently represents employees.
"Wal-Mart," Seligman said.
"Evil Empire," Stemerman answered.
Seligman, Stemerman, Tinkler and Merritt met in San Francisco for lunch. By the end, two things were clear: They'd move forward, and Seligman would be in charge.
Tinkler and Merritt hadn't expected this last part. "Lawyers have big egos," Tinkler says. "I don't, of course -- I'm a Buddhist -- but any trial lawyer likes to try his own cases. I'm typically a lead counsel. But it just seemed natural that it be Brad."
Seligman seems to have been preparing all his life for this case, although for a long time that wasn't obvious.
He was an upper-middle-class Hollywood kid, the second child of Muriel and Selig Seligman, an attorney at the Nuremberg war crimes trials who went on to become an executive at ABC. In the mid-'60s, the senior Seligman was executive producer of "Combat," a series about World War II.
Brad excelled as a debater. In his senior year in high school he went to the national debating championships in Washington and won. He called his father, who congratulated him. Then the elder Seligman went to bed, had a heart attack and died.
Seligman, who was 51, had worked for ABC for 19 years -- one year short of becoming vested in the retirement plan. He had done a lot for the network, but the benefits for his widow and five children were minimal.
"ABC's response was 'Goodbye and good luck,' " remembers the son. "It didn't endear me to large corporations."
Seligman went to college at UC Santa Cruz and other Northern California schools, where he got caught up in the ferment and experimentation of the '60s. At the end of 1974, he was living in a cabin on the Russian River in Sonoma County and reading, appropriately enough, Russian literature when he realized he had debts of $130 and assets of $80.
He decided to give the law a try, just like his father had always wanted.
In 1993, Seligman started the Impact Fund, which provides assistance for complex public interest litigation. (One recent recipient: the anti-Wal-Mart forces in Inglewood, which earlier this year successfully quashed the retailer's efforts to build a store there.) Eleven people now work at the fund's office, which is run by Seligman's sister Lucy.
Before Wal-Mart, his most significant case was a sex-discrimination suit against Lucky Stores, now part of the Albertson's supermarket chain. Lucky paid $107 million to settle in 1992. But the Wal-Mart case is at least several orders of magnitude greater.
The bigger the class, "the heavier burden we have to convince a judge there is a common problem across the system," Seligman says. "Defendants always argue, as they did in this case, that each store is different."
Trying to prove they weren't was the role of Marc Bendick, an economist and consultant in Washington. Using Equal Employment Opportunity Commission data, Bendick put together a portrait of the top 20 discount retailers' workforces.
Women, he found, dominate retail -- and not just at the cash register; Kmart, JC Penney, Sears and other companies are run by management teams that are, on average, 56% female.
Then the lawyers took a close look at Wal-Mart's recent EEOC reports. No matter which way Bendick sliced it, Wal-Mart was different: Only 34% of its managers were women.
"What makes lawyers happy is when they find the very dramatic epiphany moments they know are going to play well to a judge or jury," Bendick says. "What makes me happy is when I find no surprises, because whatever data I look at is telling me the same story over and over."
As Seligman began assembling a team in the spring and summer of 2000, he knew he needed at least one firm with deep pockets. But most of those he sounded out weren't interested. The case was just too big, the chance of being turned back by the court too great. Most judges, after all, frown on massive class actions because they're too unwieldy to manage.
"We were betting the bank," Seligman says.
There was another stumbling block too. When a big firm comes in, it usually takes control. Seligman was unwilling to surrender that.
Eventually, a recruit was found: Cohen, Milstein, Hausfeld & Toll, a well-capitalized Washington firm specializing in class actions.
"We had a long talk," says senior partner Joe Sellers. "It wasn't like he just said, 'Wal-Mart' and I said, 'You bet.' "
