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San Francisco�A federal judge gave a green light to the historic Wal-Mart sex discrimination class action last week, a decision that could potentially funnel tens of millions of dollars in attorney fees to the lean nonprofit law firms on the plaintiffs’ legal team. But while the plaintiffs’ lawyers celebrated U.S. District Judge Martin Jenkins’ class certification ruling, they and other experts noted that it would likely face an almost immediate challenge. In a statement, Wal-Mart Stores Inc. spokeswoman Mona Williams said that the retailer plans to appeal. Jenkins issued an 84-page order that made Dukes v. Wal-Mart Stores, No. 01-02252 (N.D. Calif.), the largest gender discrimination class action in history. The case alleges that the nation’s largest employer paid women less and promoted them less often than male workers. The class may include up to 1.6 million former and current employees who worked at Wal-Mart after December 1998. Jenkins’ order didn’t weigh the case’s merits. However, the judge noted that Dukes‘ record-breaking scope doesn’t give Wal-Mart a free pass when it comes to the 1964 Civil Rights Act. Wal-Mart downplayed the importance of Jenkins’ decision. “Let’s keep in mind that [the] ruling has absolutely nothing to do with the merits of the case. Judge Jenkins is simply saying he thinks it meets the legal requirements necessary to move forward as a class action,” Williams said. The legal skirmishes aren’t over yet. Under a relatively new rule, Wal-Mart can appeal the certification within 10 days to the 9th U.S. Circuit Court of Appeals. The court then would have discretion over whether to take up the case. The publicity about the case may prompt the 9th Circuit to take it up, said Barry Goldstein, a class action expert at Goldstein, Demchak, Baller, Borgen & Dardarian in Oakland, Calif. Any decision made by the 9th Circuit would probably be appealed to the U.S. Supreme Court, he added. An eventual victory could fund years of public interest litigation. The nonprofits on the legal team are Impact Fund, an 11-year-old Berkeley, Calif.-based nonprofit started by ex-Saperstein, Mayeda & Goldstein partner Brad Seligman; Equal Rights Advocates, a 30-year-old San Francisco firm focused on gender discrimination; and Baltimore-based Public Justice Center, a 19-year-old public interest law firm. The private firm roster includes San Francisco’s Davis, Cowell & Bowe; Santa Fe, N.M., firms Merrit Bennett and Tinkler & Firth; and Cohen, Milstein, Hausfeld & Toll, the Washington firm that sued Swiss banks on behalf of Holocaust survivors.

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