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No one knows better than Gilberto Garcia how fame, and perhaps fortune, can change on a whim. The Hackensack, N.J., lawyer was still reeling from a 2001 reprimand for fee-splitting and conflict problems, which sent him back to ethics classes, when a telephone call late last month dumped the case of a lifetime in his lap. The call was from a television reporter who had done a story about the illegal aliens swept up in the federal government’s Oct. 23 raid of Wal-Mart stores nationwide. Yolanda Vasquez, of WNJU-TV in Teterboro, N.J., says she felt sorry for the Mexican cleaning workers at Wal-Mart stores in Old Bridge and Piscataway, N.J., who now face deportation. “They were so sad, the American dream was dying,” she says about the Mexican immigrants she interviewed. “They were crying. I was crying. I had to shut the camera off. … It’s not fair that they have to go” back to Mexico. So Vasquez put Garcia, who runs a two-lawyer firm with his wife, in touch with the workers. She says Garcia was recommended to her by an assignment editor, since he was a legal commentator for the station from time to time. “We worked with him on other stories. He’s on our list,” says the editor, Yesenia Torres. Garcia took on the case, drafted a 24-page complaint against Wal-Mart and others within a day and filed it two days later in state court in Freehold, N.J. Garcia, who describes himself as “the littlest guy in the world, with a lot of chutzpah,” is now suing the largest company in the world on behalf of illegal aliens who could be put on a plane if the federal prosecutors investigating Wal-Mart’s labor practices do not need them. His nine plaintiffs charge the giant retailer and several cleaning contractors with violating a host of labor and tax laws, with discrimination and with exploitation of the workers. They allege they were forced to put in 60-hour weeks at low pay with no overtime, no weekends off and no sick days, vacations, medical coverage or workers’ compensation. Garcia also sued to recoup federal taxes, as none were deducted from the paychecks that allegedly ran from $350 to $500 a week. Arkansas-based Wal-Mart Corp.’s 4,750 stores and outlets generated $244.5 billion in sales and $8.04 billion in net income in the past year. The company, headed by legendary retailer Sam Walton, has 1.4 million employees and a total market capitalization of $241 billion. Given the size of his opponent, Garcia was not unhappy to take a second call, from plaintiffs labor lawyer James Linsey, a partner with New York’s Cohen, Weiss & Simon, which has long represented many workers, including the International Brotherhood of Teamsters. Asked how he heard of the case, Linsey told a radio talk host that someone sent him a copy. He says he called Garcia, who quickly agreed to bring him in as co-counsel (though there’s little doubt that Linsey will be the lead). In addition to a piece of what could be a gigantic class action — the federal raid hit 60 stores in 21 states, leading to the arrest of 250 alleged illegal aliens — Garcia provides Linsey with a New Jersey base of operations. Linsey is admitted in New Jersey and in its federal district court, but Cohen, Weiss’s principal office is in midtown Manhattan. Linsey immediately redrafted Garcia’s complaint, added a racketeering count and filed it as a class action in federal court in Newark last week, Zavala v. Wal-Mart Corp. BIG GUNS Linsey brings solid credentials to the table. He closed out an eight-year case against Pepsi Bottling Group Inc. last March by winning, along with the state, a $28.3 million award on behalf of 700 Teamster drivers nationwide for backpay and overtime. Pepsi had contended the drivers were outside salesmen or customer service representatives not eligible for overtime, but a New Jersey administrative law judge ruled for the drivers and the state Department of Labor, which filed the initial grievance and won a $2 million judgment for a dozen representative drivers. The drivers shared $17.3 million while the state received $8 million, with Linsey and his 28-lawyer firm earning a $3 million fee. A part of the case dealing with pre-judgment interest went up to the state Supreme Court, which ruled for the state and the Teamsters in 2001 in N.J. Commissioner of Labor v. Pepsi-Cola Company, A-5108-98T5 . Linsey then reached out for Della Bahan of Pasadena, Calif., a well-known plaintiffs labor lawyer who has handled similar cases, including the representation of 70 illegal immigrants from Thailand who were working in a garment sweatshop in El Monte, Calif., when it was raided by the Immigration and Naturalization Service in 1995. In that case, the California state labor commissioner and the INS said the women were treated more like slaves and prisoners working off the payment for their smuggling fees while sewing clothes for the likes of Macy’s, Hecht’s and Filene’s. In the case, Bureerong v. Uvawas, a federal class action, the plaintiffs won a settlement “in the millions,” says Bahan, who says a confidentiality agreement prevents her from disclosing the number. Among the named defendants were Montgomery Ward & Co. and B.U.M., which sold the clothes. Bahan is working on another federal class action in California similar to the Wal-Mart case, Flores v. Albertson’s Inc., No. CV 01-00515 AHM. In Flores, illegal aliens working as janitors for four supermarket chains are suing the chains for a host of state and federal violations, including fraud, unfair business practices and lack of overtime. But like the newly filed Wal-Mart case, the Flores plaintiffs also named the contractors who hired the immigrants — Encompass Services Corp. and Building One Service Solutions Inc. — and contracted with the stores. The plaintiffs team in the Wal-Mart complaint also is using the legal strategy from Flores of suing both the chains and the contractors or subcontractors as “joint employers.” In fact, that strategy is integral to the counts under the federal Racketeering and Corrupt Influence Act, or RICO. Bahan says one of the four chains, Ralph’s, has settled. More important, U.S. District Court Judge A. Howard Matz denied a defense motion last year to review a ruling by the judge magistrate that blocked the stores from getting documents relating to the immigration status of the eight representative plaintiffs. Bahan says the ruling is crucial for such cases because defendant corporations argue that illegal immigrants lack the rights to pursue most remedies. But Bahan acknowledges that the biggest obstacle to the Wal-Mart plaintiffs is the U.S. Supreme Court’s March 2002 ruling in Hoffman Plastic Compound v. NLRB, 535 U.S. 137. In a 5-4 decision, the justices found that the NLRB could not award backpay to workers fired for union-organizing activities because they were in the country illegally and should never have been hired. “While Hoffman of course is the top precedent and Flores is just a district court case, the two are different,” says Bahan. She explains that the Supreme Court only denied backpay to illegal immigrants, while in Flores and in Wal-Mart the plaintiffs seek pay for work actually done. HOUSE OF CONTRACTORS In the Wal-Mart complaint, Garcia and Linsey charge that the chain was trying to protect itself against liability by using contractors, some of whom in turn did the same thing, creating yet another layer by using subcontractors. But at work, the plaintiffs were supervised and controlled by Wal-Mart managers who knew the cleaning crews were illegal immigrants, the suit alleges. In the initial state suit, Garcia says, Wal-Mart became suspicious last August that the government was about to crack down and ordered the contractors to change the method of payment to further conceal the conspiracy. Immigration officials in the Department of Homeland Security were apparently running a probe, including secret tape recordings, for months before the Oct. 23 raid, according to the suit. A grand jury in Pennsylvania is now investigating a criminal case. Garcia, meanwhile, says he will try to get immigration officials to give employment authorizations and temporary visas to his clients in hopes of forestalling deportation of his class representatives. In between, Garcia has been running from interview to interview, appearing on television and radio. The Wal-Mart suit has received worldwide coverage, including television coverage in Asia. Meanwhile, Wal-Mart spokeswoman Mona Williams says the company did not know of the alleged labor violations or that contractors were using illegal immigrants. She told The Associated Press last week, “Clearly the hungry lawyers are converging on the illegal immigrants as if they were accident victims.” A MESSY DIVORCE Garcia’s 2001 disciplinary reprimand in New Jersey stemmed from representing a husband in a divorce and then the wife in a series of cases, from bankruptcies to debt-collection cases to eviction. The Disciplinary Review Board found his actions motivated not by venality but by a sincere effort to help a woman in need. Nevertheless, he broke ethics rules. The fee-sharing violation involved Garcia giving money to the husband in a subsequent unrelated business transaction in which the husband fed him inside information about an adversary while Garcia was representing a friend of the husband. While Garcia denied it was a referral fee, the DRB rejected his explanations and concluded it was. Three DRB members voted for a three-month suspension but five voted for reprimand and for Garcia to take eight hours of classes in professional responsibility. Says Garcia, “I know I was violating the rules, but I did it anyway. This woman was being evicted and I had to act, and I’m paying for it.” Garcia says he had to attack his other client, the husband, accusing him of fraud and intent to deceive the court by hiding assets, because the ex-wife’s financial problems stemmed from the husband’s failure to abide by the property settlement in the divorce. Garcia says, “It’s good to get that out right now because you know Wal-Mart will try to use that to say I’m not qualified to represent the class.”

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