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ATTORNEY BRAD SELIGMAN was on a hunt to find out whatever he could about Wal-Mart Stores Inc. after hearing about a potential claim of alleged sex discrimination against the retailer in 1999. “I called up my friend, another attorney, and he immediately said, ‘evil empire,’ ” said Seligman, executive director and founder of a nonprofit group called Impact Litigation Fund, located in Berkeley, Calif. “ Then I called another friend, who is an economist, and he also indicated the same.” Based on the advice of his friends and some statistical research of his own, the litigation began. On Feb. 6, the 9th U.S. Circuit Court of Appeals upheld a lower court decision making the case the largest employment discrimination class action to go to trial. Dukes v. Wal-Mart Stores Inc., No. 3:01-CV-02252 (N.D. Calif.). Impact Fund filed the lawsuit against Wal-Mart. The organization aims to provide funding, training and advice to lawyers who want to bring public interest impact lawsuits in civil rights, poverty and environmental justice. And its Equal Justice Litigation Program works as co-counsel on select cases, including the Wal-Mart case. Impact Fund has three attorneys: Seligman, Jocelyn Larkin and Julia Campins. The entire organization runs with 12 employees, said Larkin, and their workspace is a typical nonprofit office, full of “hand-me-down furniture.” But their work, as the organization’s name suggests, is anything but little. Impact Fund is currently involved in litigating six cases, including another gender discrimination class action against Costco stores. Ellis v. Costco Wholesale Corp., No. 3:04-CV-03341 (N.D. Calif.). Wal-Mart will appeal the decision, said Theodore J. Boutrous, the company’s chief counsel on appeal and a partner at Gibson, Dunn & Crutcher in Los Angeles. “We feel we have excellent arguments for en banc review in the 9th Circuit and to the Supreme Court,” Boutrous said, arguing that this ruling conflicts with class action certification laws in other jurisdictions. “We do not feel it is fair for the plaintiffs to act that the court has made a decision on the merits,” he said. “This ruling does not speak to the merits of the plaintiffs’ claim.” A life change Seligman founded Impact Fund after working 11 years as a plaintiffs’ class action lawyer in a small Oakland, Calif., firm, Saperstein, Seligman, Mayeda & Larkin. He became managing partner of the firm, and then realized his career was becoming too demanding. “I was 40 and I was a single parent, and I realized it just wouldn’t be as much fun for me, so I resigned,” he said. “Then I realized I made more money than I planned to make and I wanted to find a way to give it away.” He thought of creating a fund from which he could give grants to attorneys who have clients and cases, but do not have enough money to go through litigation. He quickly learned that it wasn’t just money that other attorneys sought. They also wanted to learn from his experience and expertise as a class action attorney. “I started to spend much more time talking to people than giving away money,” Seligman said. And so he started a training program and working as co-counsel on certain cases. Seligman became interested in Wal-Mart when Stephen Tinkler, now an attorney with Tinkler & Firth in Santa Fe, N.M., called him for information on how he should best carry out a gender discrimination class action against the retailer. Seligman’s idea was to put together a unique team made up of a mix of nonprofit organizations and private firms to represent the class against Wal-Mart. The nonprofit groups, in addition to Impact Fund, are Equal Rights Advocates in San Francisco, which specializes in sex discrimination cases, and Public Justice Center, a Baltimore nonprofit firm. The firms are Cohen, Milstein, Hausfeld & Toll in Washington; Davis Cowell & Bowe in San Francisco; and Tinkler & Firth and Merit Bennett P.C. in Santa Fe. Together, 18 attorneys worked through discovery, Seligman said. Irma Herrera, executive director of Equal Rights Advocates, said the attorneys reviewed more than one million documents. “We were criss-crossing the country taking depositions of Wal-Mart employers and preparing the employees,” she said.

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