X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Wal-Mart sex discrimination class action has drawn serious attention for its size. Justly so. Some 1.6 million women are confronting the retail colossus in what is being billed as the largest civil rights class action ever certified. But the class, which U.S. District Judge Martin Jenkins of San Francisco approved on June 22, is also noteworthy for its representation: three nonprofit groups�the Impact Fund, Equal Rights Advocates and the Public Justice Center�along with four plaintiffs’ firms�Cohen, Milstein, Hausfeld & Toll of Washington; Davis, Cowell & Bowe of San Francisco; and Santa Fe, N.M., firms Tinkler & Firth and Merit Bennett P.C. The plaintiffs’ team is far-flung, stretching across the country. And even more rare, the leader of the historic class action is a public interest lawyer: Brad Seligman of the Impact Fund, a Berkeley, Calif., foundation that often just provides funding for public interest litigation. On its face, the plaintiffs’ lawyer cooperative in Dukes v. Wal-Mart Stores Inc., No. C-01-02252, is a mishmash of talent and a logistical nightmare in waiting. It also seems overmatched by Wal-Mart’s bottomless resources and highly pedigreed legal counsel: Paul, Hastings, Janofsky & Walker of Los Angeles, one of the nation’s largest, most successful labor and employment firms. But the Wal-Mart plaintiffs’ team has done well for itself so far, and it can also boast of wielding a state-of-the-art strategy. Plaintiffs’ lawyers are increasingly forming joint ventures to take on corporate America-often pairing nonprofits with more materially minded private lawyers. It is partially a resources thing. Even big plaintiffs’ firms are relatively small�in the 50- to 75-lawyer range-and are often hard-pressed to handle major class actions alone. But there is also a high-minded principle involved. In Wal-Mart and other cases with such alliances, the plaintiffs hope to send a message that they are after more than just money. “[The public lawyers] are insurance that the public, as well as the court, can know that this case is not just a lawyer’s case, not just a money case,” said Seligman. The plaintiffs’ team, he said, seeks broad injunctive relief that will change Wal-Mart’s treatment of women. In his June opinion, Jenkins ruled that the plaintiffs had raised at least “an inference that Wal-Mart engages in discriminatory practices in compensation and promotion.” Said Seligman: “This is one of the few class cases in which no one . . . is talking about [plaintiffs' lawyers] as money-grubbers.” Well, some are suggesting just that. In July, the Wall Street Journal ran a column deriding the fund’s involvement in Wal-Mart as little more than a “patina of supposedly disinterested respectability” for plaintiffs’ lawyers. The tactic is increasingly used by plaintiffs’ lawyers trying to distance themselves from an ambulance-chasing image, said Steven Malanga, author of the column and a contributing editor to the Manhattan Institute’s conservative City Journal. Whatever the motive, examples of such pairings abound. San Francisco’s Lieff Cabraser Heimann & Bernstein has teamed with the National Association for the Advancement of Colored People and the Mexican American Legal Defense Fund to sue Abercrombie & Fitch Co. for race discrimination. Sprenger & Lang, another prominent, D.C.-based plaintiffs’ firm, has partnered with the American Association for Retired Persons to represent television writers in an age discrimination suit against Hollywood studios. “With some judges it may help in giving the impression that this isn’t just a lawsuit by a bunch of greedy plaintiffs’ lawyers,” said Sprenger & Lang partner Michael Lieder. High-profile test case Whether or not such partnerships provide public relations help, the Wal-Mart suit will serve as a high-profile test case of whether public and private lawyers can work together successfully. So far, the answer seems to be yes. (Wal-Mart and Paul Hastings declined comment. In a statement, the company said that Jenkins’ certification ruling “has absolutely nothing to do with the merits of the case.”) The suit originated with two private Santa Fe attorneys: Stephen Tinkler and Merit Bennett. In 1996, the lawyers won a $2 million sexual harassment verdict against Wal-Mart, which led to other Wal-Mart employees approaching the lawyers. By 2000, said Tinkler, the lawyers had decided to bring a nationwide class action. That’s when they turned to Seligman. As a private lawyer, Seligman won large sums in employment discrimination suits against State Farm General Insurance Co. and Lucky Stores Inc. in the 1990s. He used his winnings to start the Impact Fund in 1992. Seligman assembled the plaintiffs’ team. He enlisted 45-lawyer Cohen Milstein to provide much of the infrastructure. Its paralegals have loaded nearly 2 million documents into a database. The firm’s Joseph Sellers, a well-known civil rights lawyer, has assisted Seligman with courtroom duties. San Francisco’s Equal Rights Advocates was retained because of its contacts with women’s rights groups. It has spent a lot of time talking to news media. The Public Justice Center in Baltimore was added partly because of contacts with low-wage workers who might become class members. The Davis Cowell firm is focused on investigating discrimination at the Sam’s Club retail outlets owned by Wal-Mart. Tinkler and Bennett, the originators of the suit, continue handling depositions and other duties. After a few minor territorial spats among the plaintiffs’ lawyers, said Seligman, harmony reigns: “There is constant communication . . . .We have monthly conference calls, we have e-mail listservs, and, most importantly, we have a virtual law office: All documents . . . are on a proprietary Web site.” Another key, add lawyers, is that the team clarified duties�and how costs and fees would be split. Lawyers will not specify how they are allocating costs, but Seligman said the team has spent $2 million to date and expects to spend at least that much more. Lawyers will split any fees using the respective lawyers’ hours and billing rates. The Wal-Mart team’s esprit de corps will likely be tested in what could be very prolonged litigation. Wal-Mart appealed the class certification in July; at press time the 9th U.S. Circuit Court of Appeals hadn’t ruled whether it would consider the appeal. The plaintiffs’ lawyers formed such a large coalition partly because they figured the suit would be a war of attrition, said Sellers of Cohen Millstein. “Wal-Mart is known for a reluctance to settle cases,” he said. “We have to be ready to go to trial.” If they do, they better reserve a big counsel table.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.