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A few years back, Fred Alvarez flew to New Orleans on Home Depot’s dollar to help fight off a bid by the Equal Employment Opportunity Commission to intervene in a potentially huge gender-bias case against the Atlanta-based home-improvement giant. A lot was at stake. Plaintiffs’ lawyers trying to get the case certified as a class action were finding it tough going in the employer-friendly territory of the 5th U.S. Circuit Court of Appeals. But EEOC intervention could have changed things almost overnight because the huge federal agency doesn’t need to meet the strict standards for class certification that face the average plaintiff. “It’s an end run around all the protections of the class action process,” says Alvarez, a partner at Palo Alto, Calif.’s Wilson Sonsini Goodrich & Rosati. Alvarez, who heads up the firm’s employment law group, managed to keep the EEOC out of the litigation and, in turn, prevented the case from becoming a class action. The suit eventually settled for a few million dollars, Alvarez says, as opposed to a smaller, almost identical, California case against Home Depot Inc. that settled for millions more after being certified as a class action. “It was unusual at that point to stop an EEOC intervention,” Alvarez notes. “We just made a lot of good arguments about how [EEOC lawyers] were sort of Johnny-come-latelies to the case, that they were going to make it more complicated.” The EEOC has long had the authority to file its own pattern and practice suits — the agency’s version of class actions — to fight employment discrimination, and EEOC officials and plaintiffs’ lawyers say there’s nothing new or wrong about that. But defense lawyers contend that the agency is finding more occasion to intervene in private suits these days, often at the request of plaintiffs who want help getting around the tough standards for class certification spelled out in the Federal Rules of Civil Procedure. “It has certainly been more common in the last five years,” says attorney C. Geoffrey Weirich, who in January got the EEOC barred from an Atlanta race discrimination case against Lockheed Martin Aeronautics Co. He and others say keeping the EEOC out can be pivotal to a case. “Usually, the game is won or lost at either denying class certification or having [a case] certified,” says Weirich, a partner in the Atlanta office of Los Angeles’ Paul, Hastings, Janofsky & Walker. “Once it’s certified, it’s difficult for an employer to suck it up and go to trial. The [financial] risk is too high.” Alvarez, who was an EEOC commissioner from 1984-87, questions whether EEOC intervention in an already existing private suit is even ethical. “If the EEOC wants to bring a case on [its] own, that’s fine,” he says. “But showing up to bail out a plaintiffs’ lawyer who ran off the road doesn’t seem like a proper use of the process.” Plaintiffs’ lawyers insist that their defense counterparts are making a big to do about nothing, and accuse them of having a severely skewed view of things. “Congress thought the only way protected class members could vindicate their rights was by statutory authority for the government to join with private individuals against companies that discriminate,” says Reuben Guttman, managing partner of the Washington, D.C., office of Provost & Umphrey, a Beaumont, Texas-based plaintiffs’ firm. “Any management firm that’s counseling that there is something wrong with that isn’t teaching its clients to comply with the law. “What the defense bar would like,” he adds, “is the elimination of class actions, because it would mean protected class members are never going to get a right of redress.” ‘A MUCH BIGGER BANG’ Furthermore, plaintiffs’ lawyers like Guttman and officials at the EEOC insist that agency interventions aren’t on the rise. Susan Oxford, an attorney adviser in the EEOC’s Washington-based Office of General Counsel, says that while the agency could intervene in hundreds of employment discrimination cases, it has chosen to do so only about four to eight times a year. “We have criteria that was established going on now for 10 years and it requires, generally, that we look at whether there is a broad public interest in the case, not a unique individual claim, and that there is something we can add to it,” she says. “We ourselves apply the criteria the courts will apply: Is our application timely? Would we likely delay the litigation? And would our involvement prejudice any individual? “So anyone suggesting that we abuse that tool,” Oxford adds, “isn’t aware of the facts.” Even so, defense lawyers point to several large cases in recent years in which the EEOC has tried to intervene, including some efforts that are still pending. Besides Home Depot and Lockheed, they cite intervention efforts against Rent-A-Center Inc., Wal-Mart Stores Inc., Ingersoll International Inc., Eagle Global Logistics, The Boeing Co., Mitsubishi Motors Corp., Ford Motor Co. and Texaco Inc. They also note a 1996 Forbes magazine article in which Cynthia Pierre, the deputy district director of the EEOC’s Chicago branch, vowed to pursue more cases like Mitsubishi, which settled for $34 million. “We’ll get a much bigger bang for the buck doing class actions,” Pierre was quoted as saying. “In class actions, we can impact more people.” That kind of attitude worries defense lawyers, including several at a recent employment law conference in Monterey, Calif., held by San Francisco-based Littler Mendelson where EEOC interventions were labeled “a scary trend.” Equally frightening to some defense lawyers is the fact that EEOC intervention can get plaintiffs around the so-called numerosity requirement in federal rules, allowing for class actions for a handful of claimants rather than hundreds. “You can get a smaller case certified that otherwise might not have made it under [the federal rules],” Weirich notes. Defense lawyers assert that plaintiffs’ desire for EEOC intervention might be the result of an unexpected consequence of the Civil Rights Act of 1991. That act gave plaintiffs the right to seek compensatory and punitive damages in employment discrimination cases, but inadvertently might have opened the door to limits on class actions. Beginning with the 5th Circuit’s 1998 ruling in Allison v. Citgo Petroleum Corp., 151 F.3d 402, some courts started holding that class actions would be inappropriate under the Civil Rights Act if the monetary relief sought was deemed more important than the injunctive relief of stopping discrimination. Plaintiffs’ lawyers then, according to defense lawyers, began looking at EEOC intervention as a way around this roadblock, as well as around the stringent class certification requirements of Federal Rule of Civil Procedure 23. PIGGYBACKING “So what happens,” Alvarez says, “is that if the plaintiffs are losing that class action battle, they call up the EEOC and they say, ‘Please come, because you don’t have to comply with Rule 23.’ And the EEOC shows up and says, ‘Let’s don’t fuss with all these Rule 23 issues. We’ll try it as a class action.’ And the plaintiffs get to ride along.” Some employer lawyers refer to it as piggybacking. But employee lawyers call EEOC intervention a legitimate way to rout out discrimination, and they insist that their opponents’ complaints are purely self-serving. “What they want is a slam-dunk certainty of a defeated plaintiff,” says Richard Seymour, a partner in the Washington, D.C. office of Lieff, Cabraser, Heimann & Bernstein. “Most individual plaintiff’s claims get tossed out on summary judgment because they can’t show a pattern [of discrimination].” The EEOC, however, can show that pattern, says plaintiffs’ lawyer Joseph Sellers, a partner in Washington’s Cohen, Milstein, Hausfeld & Toll who has brought class action discrimination suits against Circuit City Stores Inc., Wal-Mart, Microsoft, Rent-A-Center and Boeing, among others. “The EEOC has the capacity to track other charges that have been filed against a company, charges of which we may not be aware,” he says. “And it has a better appreciation of the breadth and scope of employment discrimination claims that are lodged against a particular employer.” Yet Sellers has resisted seeking EEOC involvement in his cases. “For all its virtues, [the EEOC] purports to represent the United States,” he says. “Those interests may very well — but may not — be the same as the plaintiffs, and it does not mean that the private plaintiffs have a meal ticket to a safe place. It would be essentially relinquishing control of the case.” In fact, Sellers and other plaintiffs’ lawyers say EEOC intervention is hard to come by. “The reality is that the government intervenes in an extremely limited number of cases,” says Guttman, of Provost Umphrey. Plaintiffs’ lawyer Barry Goldstein of Oakland, Calif. lays out the pros and cons of EEOC involvement in a draft introduction for two acquaintances’ upcoming book about employment issues. While the agency provides many benefits, such as manpower and other resources, he wrote, it also might have a different view of litigation tactics, the scope of the claims and the ultimate goal. “The EEOC attorneys are anchored by their obligation to represent the ‘public interest’ as defined by the current administration,” Goldstein, a partner of Saperstein, Goldstein, Demchak & Baller, wrote. “For example,” he added, “the government may accept a settlement that the private class rejects.” Overall, though, Goldstein believes intervention will likely enhance a privately filed suit. “The decision by the EEOC to intervene and the certification by the EEOC that the litigation is of ‘public importance,’ ” he wrote, “ may influence a court to consider the action worthy of the expenditure of the judicial resources required to manage a class action.” All that defense lawyers know is that successful EEOC intervention almost always results in class certification, which then leads to a pretrial settlement by employers for large sums of money. No large employment discrimination case has ever made it to trial, says Alvarez, of Wilson Sonsini. “The closest one that I’m aware of is Home Depot,” he says. “What happens is that the closer you get to trial, the more the exposure starts to loom and the board of directors or somebody says, ‘Do we really want to be here?’ “

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