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Attorney taking on Wal-Mart says it's not just about money

By David Streitfeld
Los Angeles Times

ROBERT DURELL / TPN Brad Seligman

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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, accusing the company of discriminating against female employees. When the time came for the first big meeting with Wal-Mart'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 two weeks ago, 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 isn't his only motivation. 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 note the decision has nothing to do with the case's merits and that it would appeal.

In the past, 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.
 
Class-action suits are the long-distance races 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 other 42 were 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. 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 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, the state where the suit was filed.)

In launching the case, Tinkler and Merritt realized they needed lots of help. They 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 Wal-Mart was. Still, he was intrigued enough for a brief conversation with Steve Stemerman, a San Francisco lawyer who often 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 would 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."

Before Wal-Mart, Seligman's most significant case was a sex-discrimination suit against Lucky Stores, now part of the Albertsons supermarket chain. Lucky paid $107 million to settle in 1992. But the Wal-Mart case is at least several orders of magnitude greater.

As Seligman began assembling a legal team, he knew he needed at least one firm with deep pockets. But most of those he sounded out said no. The case was just too big, the chance of being turned back in court too great.

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 suit. The $500,000 needed for the mailing?

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