Wal-Mart's challenger used to lengthy battles

Class action: A Berkeley, Calif., lawyer relishes leading the biggest workplace discrimination case ever.

July 03, 2004|By David Streitfeld | David Streitfeld,LOS ANGELES TIMES

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

Its two windows look out onto walls. The table is scratched, the carpet dull. An air duct 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."

But in June Seligman rocked the world's largest company when a federal judge in San Francisco certified his lawsuit as a class action.

That broadened it from six women to 1.6 million - the biggest workplace discrimination case ever.

Formed in the crucible of the late 1960s, 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."

Bentonville, Ark.-based Wal-Mart 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 lawsuits are the 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.)

In 22 years, Seligman has filed 45 class actions. One did not get certified, one he lost at trial and one he withdrew. The other 42 were either settled or, in five cases, won at trial.

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 lawsuits 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.

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

"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."

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 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.

The bigger the class, "the heavier burden we have to convince a judge there is a common problem across the system," Seligman said. "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 what the top 20 discount retailers' work forces looked like.

Women, he found, dominate retail - and not just at the cash register; K-Mart, J.C. Penney, Sears and other companies are run by management teams that are, on average, 56 percent 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 percent of its managers were women.

As Seligman began assembling a team in the spring and summer of 2000, he knew he needed at least one firm with deep pockets.

Eventually, a recruit was found: Cohen, Milstein, Hausfeld & Toll, a well-capitalized Washington firm specializing in class actions.

The lawyers have participated in about 200 depositions, about 75 with Wal-Mart employees who offered to be witnesses.

The next step, Seligman says, is to send letters to the 1 million women who are members of the class action but no longer work at Wal-Mart, informing them of the lawsuit.

Their addresses will come from Wal-Mart. The $500,000 for the mailing will come from somewhere else, although it's unclear where.

"We'll have to raise it," Seligman says. "We're working on it."

Times staff writer Lisa Girion contributed to this article. The Los Angeles Times is a Tribune Publishing newspaper.

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